Bills Digest No. 108  1998-99 Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998

Date Introduced: 9 December 1998

House: Senate

Portfolio: Environment and Heritage

Commencement: 28 days after the day on which it receives Royal Assent

Purpose

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 species.

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 species.

Background

Use of Threatened Species in Traditional Medicine

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 Chinese medicine.(1)

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 possible extinction.

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 communities.(4)

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 substances
  • ensure that national laws control use of these species
  • encourage promotion of substitutes for threatened medicinal wildlife, and
  • consider artificial propagation and captive breeding techniques.(5)

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 Act

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 Reform

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 environmental laws.

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 regime.

Main Provisions

Schedule 1-Amendment of the Wildlife Protection (Regulation of Exports and Imports) Act 1982

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 listed.

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.

Concluding Comments

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 needed.(17)

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.

Endnotes

  1. 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.

  2. Rob Parry-Jones and Amanda Vincent, 'Can We Tame Wild Medicine?' New Scientist, 3 January 1998, pp. 26-29.

  3. 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.

  4. N. T. Marshall, Searching for a Cure: Conservation of Medicinal Wildlife Resources in East and Southern Africa, TRAFFIC International, Cambridge, 1998.

  5. 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.

  6. Tony Barrell, 'Australia: Mother Courage', Business Briefing, Sunday Herald Sun, 22 March 1998, p. 18.

  7. Gil Breitkreutz, 'Crocodile penises may become the Viagra of the East', Australian Associated Press, 11 November 1998.

  8. 'Shut the gate before seahorses bolt - expert', The Courier-Mail (Brisbane), 22 August 1998.

  9. 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.

  10. Explanatory Memorandum, Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998, p. 10.

  11. Senate Rural and Regional Affairs and Transport References Committee, Commercial Utilisation of Australian Native Wildlife. June 1998. 418 pp +xxxvi. Also at http:// www.aph.gov.au /senate/committee/rrat_ctte/wild/wlindex.htm

  12. 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.

  13. Daniel Dasey, 'Tougher laws to tame poachers', Sun Herald, 23 August 1998.

  14. Explanatory Memorandum, Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998, p. 8.

  15. Ibid, p. 3.

  16. Schedule 4, Items 1, 8.

  17. Bruce MacDonald, Report of the Review of the Australian National Parks and Wildlife Service, March 1989, Australian Government Publishing Service, Canberra.

  18. P. 3.

  19. TGA News: The Official Newsletter of the Therapeutic Goods Administration, Issue 28, December 1998, p. 11.

  20. 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.

Contact Officer and Copyright Details

Frances Michaelis and Krysti Guest
11 February 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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