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Wildlife Protection (Regulation of Exports and Imports)
Amendment Bill 1998
Date Introduced: 9 December 1998
Portfolio: Environment and Heritage
Commencement: 28 days after the day on which
it receives Royal Assent
The Bill will
strengthen controls on the illegal import, export and possession of
products that contain endangered species in their ingredients by
amending the relevant evidentiary provisions. In addition to the
current criminal offence that a product must not without a permit
contain an endangered species, the amendments make it a
criminal offence to import, export or possess a product that is
represented to contain material from an endangered
These amendments more fully implement
Australia's obligations under the Convention on International
Trade in Endangered Species of Wild Fauna and Flora 1973,
which aims to control international trade in endangered
Use of Threatened Species in Traditional
The breadth and scope of use of wildlife
medicinals varies from country to country. At least one-quarter of
the world's population, including ethnic Chinese on all continents,
Koreans and Japanese, use medical practices based on traditional
Chinese medicine. This practice is one of the alternatives to
Western medicine that is endorsed by the World Health Organisation.
In Australia, there are now over 1,500 primary practitioners of
Trade in Chinese medicines was worth about $2
billion to China in 1994, and is growing rapidly. About 85 per cent
of these medicines are derived from plants, with 13 per cent coming
from animals and 2 per cent based on minerals.(2) In east and
southern Africa, traditional medicine is the predominant medical
system and the quantities of plants and animals required for
traditional medicine is expected to increase substantially. This
will place a high demand on wild plant and animal populations,
increasing the possibility of significant species depletion and
It is only recently that the international
community has realised the extent of the problem. The vast majority
of medicinal animals and plants are collected from the wild.
Species particularly considered at risk include tiger, rhino, musk
deer and certain types of orchid.(3) Depletion of medicinal
resources not only poses a challenge for conservation but
represents a serious threat to the health status of many human
International Legal Framework for
Control of Trade in Endangered Species
The primary international instrument for the
protection of species which are, or may be, endangered by
international trade is the Convention on Trade in Endangered
Species of Wild Fauna and Flora 1973 (CITES). Australia
ratified CITES on 29 July 1976.
At the Tenth Meeting of the Conference of the
Parties to CITES, held in Harare, Zimbabwe in June 1997, it was
acknowledged that the uncontrolled use of wild species in
traditional medicine may threaten not only the survival of species
but the continuation of these medical practices. This consideration
of traditional medicine as an issue in its own right and not
attached to a species issue is an advance in holistic conservation.
The Conference called on all Parties to:
- eliminate illegal use of endangered species as medicinal
- ensure that national laws control use of these species
- encourage promotion of substitutes for threatened medicinal
- consider artificial propagation and captive breeding
Wildlife Protection (Regulation of
Exports and Imports) Act 1982
The Wildlife Protection (Regulation of
Exports and Imports) Act 1982 (the Wildlife Protection Act)
gives effect to Australia's obligations under CITES and is the
legislative basis for conservation-related controls on the export
and import of wildlife and wildlife products. The broad aim of the
Wildlife Protection Act is to ensure that all trade in wildlife is
carried out in a sustainable manner that is not detrimental to the
survival of the species or ecosystems in which they occur.
The extent of use of threatened species in
traditional medicines within Australia is uncertain. 'Plasters and
pills containing tiger bone and rhino horn' are readily available
according to the World Wide Fund for Nature (WWF) Oceania.(6)
Others consider that such medicines only purport to contain tiger
and rhino and that these endangered species have long since been
substituted, due to their lack of availability and their high cost.
There are also developing export markets in the medicinal use of
the internal organs of crocodiles bred in farms in northern
Australia(7) and of the pipefish family, which includes seahorses,
caught as by-catch by Queensland prawn trawlers.(8) Australian
species of crocodiles are listed on Appendix II of CITES and
Schedule 2 of the Wildlife Protection Act. Pipefish, leafy
seadragons and seahorses are not listed on CITES but, in
recognition of their vulnerability to depletion, are not
exempt from export regulations under the Wildlife Protection Act,
unlike most other marine fish.
Prosecutions under the Wildlife Protection
There have been no prosecutions for breaches of
the Wildlife Protection Act that involve illegally imported
traditional medicine products containing material from endangered
species. (By way of comparison, in 1997-98, there were 4582
seizures by the Australian Customs Service of illegally imported
and exported wildlife specimens and seven successful prosecutions
under the Act.) The major impediment to a successful prosecution is
that current forensic technology is unable to prove beyond
reasonable doubt that traditional medicines contain material from
endangered species as claimed on their packaging. For example,
existing DNA testing technologies cannot identify a particular
species within a product once material from that species is
co-mingled with other elements and heated at high temperatures.
Government Environmental Law
The Commonwealth Government is proposing
substantial changes to the federal environmental legislative
framework. The Environment Protection and Biodiversity Conservation
Bill 1998 (EP&BC Bill), re-introduced into this Parliament on
12 November 1998, aims among other things, to provide for the
protection of the environment, especially those aspects of the
environment that are matters of national environmental
significance, to promote ecologically sustainable development and
to assist in the co-operative implementation of Australia's
international environmental responsibilities. Pursuant to these
aims, the EP&BC Bill incorporates a range of currently separate
The public consultation paper released prior to
the EP&BC Bill had proposed that the Wildlife Protection Act be
incorporated into a proposed Biodiversity Conservation Bill.(9)
However, when the Environment Protection and Biodiversity
Conservation Bill 1998 was initially introduced into the
38th Parliament, the Wildlife Protection Act was not
included. Instead, on 22 August 1998 the Commonwealth Minister for
the Environment, Senator the Hon Robert Hill, announced the
Government's intention to introduce the current amendments in
accordance with its CITES obligations.(10)
The Explanatory Memorandum states that the 'the
Government is committed to undertake a broad review of the Wildlife
Protection Act, taking into account the recommendations of the
recent Senate Inquiry into commercial use of native wildlife'.(11)
Given that the Wildlife Protection Act was originally intended to
be part of the package of environmental law reforms in the
EP&BC Bill, one issue for review may be the future
incorporation of the Wildlife Protection Act into the proposed
Schedule 1-Amendment of the Wildlife
Protection (Regulation of Exports and Imports) Act
Item 1 - Proposed subsection
4(1) inserts two new definitions - 'Convention listed
animal' and 'Convention listed plant'. Currently, the existing
offence provisions cover both CITES listed species as well as
native Australian animals and plants, many of which are not CITES
This proposal ensures that only CITES listed
animals and plants will be subject to the new 'representation'
offence proposed in Item 2.
Item 2 - Proposed subsection
4(2B) provides that if a thing is represented by an
accompanying document, a package, a mark, a label or from any other
circumstances to be part of a:
- Convention listed animal or plant or
- produced by or from, or derived from a Convention listed animal
or plant with or without other material
then the thing is taken to be a specimen from
the Convention listed animal or plant.
As stated in the accompanying note, this
subclause has the effect of widening the range of offences relating
to the export, import and possession of specimens. However, the
Explanatory Memorandum notes that the phrase 'is represented to
be' is not open-ended. It is not intended to apply to items
which are clearly an imitation, or which merely use labels, marks
or images of a CITES listed specimen as a marketing tool. It would
appear this interpretation is designed to deal with a product such
as 'Tiger Balm', which although labelled in one way, does not
purport to contain tiger products.
Item 3 - Proposed subsection
4(2C) is unclear. It appears to provide that if a thing
represents itself (for example through a label) as containing a
CITES listed plant or animal, and the person importing, exporting
or in possession of that thing has a permit or other authority for
that represented CITES listed plant or animal, but in fact that
thing contains another CITES listed plant or animal which is not
authorised by the permit, then proposed subsection
2B will not cure the false representation. In other words,
in accordance with matters within the scope of proposed
subsection 2B, a potentially unlawful activity will not be
made lawful merely because it represents itself as containing
something authorised by a permit.
However, this provision is tortuously drafted
and may operate in a way not intended.
The wildlife protection community in Australia
has welcomed the Government's commitment to amend national
legislation.(12) The response from the traditional medicine
community has been equally supportive. The President of the NSW
Association of Chinese Medicine, Professor Yang Yi Fan, said that
'most practitioners were happy to abide by the changes'.(13)
The Explanatory Memorandum states that other
jurisdictions, such as the United States and the European Union,
have implemented legislation which reflect the evidentiary
provisions of this Bill and have since recorded a greater
prosecution success rate.(14) Similarly, a relevant precedent in
Australia is the Therapeutic Goods Act 1989, which defines
'therapeutic goods' as goods that are represented to be
for therapeutic use. Since 1993, 577 charges have been laid based
on this definition with a 100% conviction rate.
The Explanatory Memorandum(15) states that the
Wildlife Protection Act is administered by Environment Australia,
which is not strictly correct. The Wildlife Protection Act is
administered by the Designated Authority, who in this case is the
Director of National Parks and Wildlife, appointed under sections
17 and 18 of the National Parks and Wildlife Conservation Act
1975, with administrative support from Environment Australia.
The Environmental Reform (Consequential Amendments) Bill 1998(16)
proposes to abolish the position of Director of National Parks and
Wildlife, replacing it by the Secretary of the Department of
Environment and Heritage. There are advantages in retaining the
present arrangement whereby the Wildlife Protection Act is
administered by an independent Designated Authority, particularly
given the scientific and technical nature of many of the decisions
CITES has proved a useful tool in wildlife
protection and Australia has been an active participant. However,
the Convention has been criticised by the World Conservation Union
(IUCN) as stepping in to ban trade in a species only after the
trade has totally decimated the population of that species. The
IUCN is also concerned that swings in policy from overexploitation
to trade bans are generally counterproductive to the development of
more rational conservation programs. Given such criticisms, it is
interesting to note that the Bill does not extend the protection of
the new evidentiary provisions to cover non-CITES listed Australian
plant and animal specimens which are covered by the current
offences regime and which may be in danger of depletion. As noted
above,(18) one current example could be the pipefish family.
The Therapeutic Goods Administration (TGA) has
recognised the need for educating the Chinese medical practitioners
and Chinese medicine manufacturers in improving the general
manufacture practices (GMP) standards of traditional Chinese
medicines destined for the export market.(19) There may be problems
with traditional medicines such as batch-to-batch variability,
variations in purity, accidental contaminants and different
subspecies of plants.(20) This raises broader issues of labelling
than those covered in the present Bill, and it is disappointing
that these were not addressed.
- Helen Sham-Ho MLC (NSW), 'Official Opening Address',
Healthy People, Healthy Wildlife. Proceedings of the First
Australian Symposium on Traditional Chinese Medicines and Wildlife
Conservation, August 1997, Biodiversity Group, Environment
Australia, p. 5.
- Rob Parry-Jones and Amanda Vincent, 'Can We Tame Wild
Medicine?' New Scientist, 3 January 1998, pp. 26-29.
- World Wide Fund for Nature, 'Government Declares Commitment to
Amend Wildlife Protection Laws', Media Release, 22 August
1998; Rebecca Thurlow, 'Green Groups Applaud New Traditional
Medicine Laws', Sunday Times, 23 August 1998, p. 3.
- N. T. Marshall, Searching for a Cure: Conservation of
Medicinal Wildlife Resources in East and Southern Africa,
TRAFFIC International, Cambridge, 1998.
- J. Gray (ed.), 'Report of the Tenth Meeting of the Conference
of the Parties to CITES', TRAFFIC Bulletin Vol. 17, No. 1,
1997, pp 5-19.
- Tony Barrell, 'Australia: Mother Courage', Business Briefing,
Sunday Herald Sun, 22 March 1998, p. 18.
- Gil Breitkreutz, 'Crocodile penises may become the Viagra of
the East', Australian Associated Press, 11 November 1998.
- 'Shut the gate before seahorses bolt - expert', The
Courier-Mail (Brisbane), 22 August 1998.
- Reform of Commonwealth Environment Legislation:
Consultation Paper, issued by Senator the Hon Robert
Hill, Minister for the Environment, Dept. of the Environment,
Canberra, February 1998, p. 39.
- Explanatory Memorandum, Wildlife Protection
(Regulation of Exports and Imports) Amendment Bill 1998, p. 10.
- Senate Rural and Regional Affairs and Transport References
Committee, Commercial Utilisation of Australian Native
Wildlife. June 1998. 418 pp +xxxvi. Also at http://
- World Wide Fund for Nature, 'Government Declares Commitment to
Amend Wildlife Protection Laws', Media Release, 22 August
1998; 'Welcome for wildlife act amendments', Sunday Age,
23 August 1998.
- Daniel Dasey, 'Tougher laws to tame poachers', Sun
Herald, 23 August 1998.
- Explanatory Memorandum, Wildlife Protection
(Regulation of Exports and Imports) Amendment Bill 1998, p. 8.
- Ibid, p. 3.
- Schedule 4, Items 1, 8.
- Bruce MacDonald, Report of the Review of the Australian
National Parks and Wildlife Service, March 1989, Australian
Government Publishing Service, Canberra.
- P. 3.
- TGA News: The Official Newsletter of the Therapeutic Goods
Administration, Issue 28, December 1998, p. 11.
- Julie L Muller, Kevin A Clauson, 'Top Herbal Products
Encountered in Drug Information Requests (Part 1)', Drug
Benefit Trends, Vol. 10, No. 5, 1998, pp 43-50.
Frances Michaelis and Krysti Guest
11 February 1999
Bills Digest Service
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