Bills Digest No. 173 2000-01
Environment Protection and Biodiversity Conservation Amendment (Wildlife
Protection) Bill 2001
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 & Copyright Details
Environment Protection and Biodiversity Conservation
Amendment (Wildlife Protection) Bill 2001
Date Introduced: 24 May
2001
House: Senate
Portfolio: Environment
and Heritage
Commencement: Sections
1-3 of the Act and Part 3 of Schedule 1 commence on Royal Assent. The
remaining provisions commence on a day to be fixed by proclamation or
failing that, six months after Royal Assent.
To incorporate an amended version
of the Wildlife Protection (Regulation of Exports and Imports) Act
1982 into Environmental Protection and Biodiversity Conservation
Act 1999.
The Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES) entered into international force on 1
July 1975. CITES established a world-wide system of controls on international
trade in threatened wildlife and wildlife products by stipulating that
government permits are required for such trade.
Species covered by CITES are categorised into three groups,
contained in CITES Appendices I-III respectively.
Appendix I covers all species threatened with
extinction which are, or may be, affected by trade in the species. Under
CITES, trade in these species can only occur after the proper permits
have been obtained, and these permits should only be authorised in exceptional
circumstances. Permits are needed both to export and import specimens
listed under Appendix I.
Appendix II covers species not currently threatened
with extinction but may become so unless trade is subject to strict regulation.
An export permit is required to export Appendix II specimens.
Appendix III covers those species identified by
contracting parties as 'being subject to regulation within its jurisdiction
for the purpose of preventing or restricting exploitation, and as needing
the cooperation of other parties in the control of trade.' Again, export
permits are required.
Australia ratified CITES in 1976. At that time, legislative
implementation of CITES obligations was through regulations under the
Customs Act 1901 plus various Acts and ordinances relating to Australia's
external territories. In 1982, the Wildlife Protection (Regulation
of Exports and Imports) Act 1982 (the WPA) was passed.(1)
The WPA consolidated CITES wildlife controls into a single piece of legislation.
It was (and still is) structured around several schedules of species in
which trade is prohibited or regulated. A permit system was introduced
under the WPA to impose conditions appropriate to the status of the species
being traded. It also provided for substantial fines plus forfeiture of
goods and equipment, and five years' imprisonment for some offences.
In 1991 the Director of the Australian Parks and Wildlife
Service commissioned John Ley to conduct a public review of the WPA.(2)
The terms of reference of review included:
- to examine the efficiency and effectiveness of the existing arrangements
for the administration of the Act and Regulations made under the Act,
and
- assess the impact of the Act on commercial activity including international
trade.
Probably the major weakness of the WPA highlighted by
the Ley report was in the area of compliance and enforcement. Other issues
of concern included an inequitable fee structure, complexity of the legislative
provisions and some of the administrative procedures.
Substantial changes were made to the WPA through the
Wildlife Protection (Regulation of Exports and Imports) Amendment Act
1995.(3) In introducing the changes, the Government commented
that they:(4)
... have largely arisen from recommendations of the
Ley Report which reviewed the act, having particular regard to Australia's
obligations under CITES. The proposed amendments will implement Appendix
III of CITES, relating to species identified by a Party as under regulation
to prevent or restrict exploitation, and needing the co-operation
of others in the control of trade. They will also enable a more flexible
approach to controlling private non-commercial trade in species identified
under Appendix II of CITES, species identified as although not endangered,
requiring trade regulation.....The proposals include improved enforcement
powers of inspectors appointed under the act by strengthening powers
of seizure, improving powers of search of premises and conveyances,
providing powers to conduct frisk searches of suspect persons, enabling
seizure of specimens.
Other provisions included a new offence of cruelty to
animals in the course of illegally importing or exporting live animals
and the introduction of a national exotic bird registration scheme. The
latter measure was intended to boost Australia's level of protection against
imported disease potentially carried by exotic birds.
In 1996, the Senate referred the issue of commercial
utilisation of Australian native wildlife to the Rural and Regional Affairs
and Transport Committee. The terms of reference for this inquiry included:
- the potential impact which commercial utilisation of native wildlife
might have on the Australian environment;
- the current and future economic viability of these commercial activities;
- and the adequacy of existing Federal Government regulations and controls
to ensure biodiversity of any native species commercially utilised.
The Committee reported in June 1998. Key findings and
recommendations included:
6.77 ...industry groups provided strong evidence
that because commercial utilisation of wildlife had evolved in an
ad hoc way, many statutory requirements were unnecessarily
restrictive to their businesses. Three types of problems were encountered:
inflexibility in statutory arrangements in the Federal Wildlife
Protection (Regulation of Exports and Imports) Act 1982 which
prevented export of live animals and caused difficulties in the export
of products; an overall excess of administrative procedures, compliance
with which was costly and time-consuming; and inconsistencies between
state arrangements, and between state and Federal arrangements leading
to a call for a national approach to commercial utilisation of wildlife.
The Committee is concerned that duplicated and onerous administrative
procedures are unnecessarily hindering legitimate industries in Australia.
The Committee recommends that State and Federal Governments together
review all administrative procedures relating to commercial utilisation
of wildlife in Australia with a view to increasing their efficiency
so as to ensure that there are no unnecessary hindrances to industry.
7.49 TRAFFIC Oceania believes that enforcement of
wildlife crime in Australia is 'at an all-time low' because the Australian
Customs Service had reduced its activities in the area of investigation
and other Federal or state agencies had not moved to fill the gap.
TRAFFIC Oceania noted that the wildlife protection section of Environment
Australia had almost no investigative capacity and was 'seriously
understaffed'. According to TRAFFIC Oceania, 'little has been done
to improve enforcement of the [Wildlife Protection (Regulation
of Exports and Imports) Act 1982], and in fact enforcement has
gone backwards'. While the activities of the ACS have been curtailed,
resources provided to the Wildlife Protection Section of Environment
Australia have not been increased and no attempt has been made to
'harmonise the disparate activities of the various state agencies'....7.73
The Committee believes that these factors point strongly to the
conclusion that the current prohibitionist policy does not work to
protect wildlife from illegal activities, although the extent to which
it does not work is difficult to ascertain. The Committee notes that
the Federal Government is currently undertaking a review of all environmental
legislation. The Committee recommends that the Government include
in that review consideration of other policy options for wildlife
protection.
All the recommendations of the report were accepted,
although some were accepted 'in principle'.(5)
In his February 1998 Consultation Paper, Reform of
Commonwealth Environment Legislation, Senator Hill foreshadowed the
Government's intention to incorporate the WPA, with some amendments, into
what was to become the Environmental Protection and Biodiversity Conservation
Act 1999. According to the consultation paper, this move was intended
to:
- simply existing provisions;
- increase the emphasis on biodiversity and animal welfare issues;
- provide a clearer structure for accreditation of management plans
prepared under State legislation, with a view to encouraging greater
reliance on the provisions dealing with approved management plans rather
than controlled specimen declarations;
- ensure appropriate criteria are applied before decisions are made
in relation to trade in, or the use of, wildlife
- strengthen the link between environmental assessment provisions and
decisions in relation to trade, or the use of wildlife; and
- strengthen the provisions creating an offence of possession of illegally
imported CITES species.
The key provisions of the Bill insert new sections into
the Environmental Protection and Biodiversity Conservation Act 1999
(EPBCA). Most of these are contained in a new Part 13A - International
movement of wildlife specimens. There are three main categories of
plants and animals covered by Part 13A: CITES specimens,(6)
regulated (Australian) native specimens and regulated live specimens.
For each of these categories, there are requirements for importing and
exporting as relevant, criteria for the issuing of permits, offence provisions
and so forth. Other elements of Part 13A deal with technical concepts
and definitions, special types of permits, anti-cruelty and welfare provisions,
and evidential issues.
The remainder of the Act mainly deals with enforcement
issues, general definitional issues, transitional matters and makes some
technical amendments to the EPBCA not directly related to wildlife matters.
The Bill was brought on to debate relatively quickly
after its introduction to the Senate. Almost one hundred amendments were
tabled by the Australian Democrats at the committee stage on June 19 and
20. Most of these were passed by the Senate. This Digest notes most of
the more significant amendments made by the Senate.
Item 4 inserts new sections 232A and 232B. These
sections create new offences of export or importing a cetacean, a part
of a cetacean or a product derived from a cetacean.(7) The
penalty is up to ten years imprisonment or a fine up to 1000 penalty units,(8)
or both. However, no offence occurs if the action falls under the provisions
of existing section 235. In particular, section 235 exemptions apply if
the action is authorised under a permit issued by the Commonwealth Environment
Minister (the Minister), taken in accordance with an EPBCA wildlife conservation
plan or recovery plan or occurs as a result of an unavoidable accident.
Items 6 and 7 increase the gaol term for
possessing or processing unlawfully imported cetaceans from a maximum
of 2 years to a maximum of 5 years.
Item 10 inserts new paragraphs 238(3)(d)-(e)
which will allow the Minister to issue a permit for the non-commercial
export or import of a part of a cetacean where it is a personal item and
will not be detrimental to the conservation of cetaceans. The Explanatory
Memorandum to the Bill comments that 'it is intended that the regulations
prescribing what is taken to be a personal item will be tightly constrained
(for example, a dolphin tooth necklace that was bestowed on a person as
part of a traditional ceremony). It is not intended that curios will be
prescribed as personal items that can be imported.'(9) This
provision was amended in the Senate, mainly to ban whale products from
being defined as personal items.
Item 11 inserts new Part 13A - International
movement of wildlife specimens. This new Part contains the majority
of the key amendments made by the Bill. Part 13A is divided into 6 Divisions.
Division 1 - introductory matters and definitions
New section 303BA sets out the objects of Part
13A. These include 'to ensure that Australian complies with its obligations
under CITES...[and]...to ensure that any commercial utilisation of Australian
native wildlife is managed in an ecologically sustainable way'. This provision
was amended in the Senate, mainly to add objects of ethical research conduct,
humane treatment of animals and the wider application of the precautionary
principle. The Senate added also new section 303BAA:
303BAA Certain Indigenous rights not affected
To avoid doubt, nothing in this Part affects the
existence and operation of the inherent traditional rights of indigenous
peoples with respect to the ownership of native plants and knowledge
of their uses.
Division 2 - CITES species
New section 303CA requires that the Minister must
establish a list in the Gazette of CITES species for the purposes of the
Act. The list is to include all species that are listed in CITES Appendices
I-III but no others. The list replaces the three separate CITES lists
currently found in Schedules 1, 2 and 2A of the WPA. The list must also
be placed on the Internet.
New section 303CB allows the Minister to declare
that a particular species or specimen will be regulated more strictly
than required by its corresponding CITES classification. This implements
Article XIV of CITES which allows Parties to adopt stricter national measures
to restrict or prohibit the trade, taking, possession, or transport of
any wildlife species. The Minister's declaration will be disallowable
by either House of Parliament (note that this last provision was deleted
by the Senate). Any new section 303CB declarations must be made available
on the Internet.
New section 303CC creates an offence, subject
to certain exceptions, of exporting a CITES listed specimen unless it
is in accordance with an export permit issued under new sections 303CG,
303GB or 303GC. The exceptions include
- exporting as part of a registered exchange of scientific specimens
between scientific organisations. Note that the Senate amended this
provision to require exchanges to be non-commercial
- where the export is an export that, under the regulations, is taken
to be an export of a personal or household effect. Note that the Senate
amended this provision to the effect that bear or cat products, or animal
trophies cannot be taken to a personal or household effect
- if the Minister is satisfied that the specimen was obtained before
the provisions of CITES applied to the specimen.
The exceptions in the Government Bill implement the exemptions
to CITES regulation as set out in CITES Article VII. The penalty for breaching
new section 303CC is up to ten years imprisonment or a fine up
to 1000 penalty units, or both.
New section 303CD creates an offence, subject
to certain exceptions, of importing a CITES listed specimen unless in
accordance with an export permit issued under new sections 303CG, 303GB
or 303GC. The exceptions mentioned above in new 303CC are mirrored for
new section 303CD. New section 303CD also allows for the importation of
dead CITES Appendix II specimens for non-commercial purposes in a personal
luggage, providing permission has been granted from the CITES authority
country of export. The Explanatory Memorandum comments that 'the Government
will [regulate to] ensure this exemption does not operate to allow, for
example, the import of leopard or lion skins, trophies or other Appendix II
specimens for which the Government has specific concerns'.(10)
New sections 303CG-CH set out the circumstances
in which the Minister may issue an import or export permit for CITES specimens.
Key provisions such as the obtaining of the specimen in compliance with
State and Territory law and requiring that the Minister be satisfied that
the actions specified in the permit will not be detrimental to the survival
of the relevant species are carried over from the WPA. However extra requirements
such as that it will not be detrimental to the recovery in nature of the
species, or to any relevant ecosystem have been added: new subparagraphs
303CG(3)(a)(ii)-(iii). Senate amendments effectively prevent an import
permit being issued by the Minister under new section 303CG for cat and
bear products or trophies.
New section 303CN provides that the Minister may
have regard to a relevant resolution of the Conference of the Parties
under Article XI of CITES in making a decision under Part 13A.
New section 303CK provides that the Minister must
establish a register that contains 'prescribed particulars' of applications
for CITES export and import permits under clause 303CE and prescribed
particulars of decisions by the Minister under new section 303CG. The
register must be made available on the Internet.
Division 3 - export of regulated native specimens
New sections 303DA-DC deal with regulated native
specimens. These are specimens that are, or derived from, native animals
or plants, and are not on the section 303DB exemption list. The exemption
list is to initially be the same as the equivalent list currently existing
under the WPA. The list can be amended once the Bill is in force, but
there are various restrictions and consultation requirements. Senate amendments
tighten restrictions applying to some migratory birds and also require
the Minister to take into account recovery plans and wildlife conservation
plans in amending the list. Consultation requirements for non-government
organisations and individuals are also very much expanded by Senate amendments.
Any amendment of the list, other than to correct technical inaccuracies,
is disallowable by either House of Parliament.
New section 303DD creates an offence, subject
to certain exceptions, of exporting a regulated native specimen unless
in accordance with an export permit issued under new sections 303CG, 303DG,
303GB or 303GC. The exceptions include
- the export is in accordance with an accredited wildlife trade management
plan under new section 303FP, providing the specimen is not an eligible
listed threatened species, is not a CITES specimen and is not a live
native mammal, reptile, amphibian or bird(11)
- registered exchanges of scientific specimens between scientific organisations.
Note that the Senate amended this provision to require exchanges to
be non-commercial.
The penalty for breaching new section 303DD is
up to ten years imprisonment or a fine up to 1000 penalty units, or both.
New section 303DG sets out the circumstance in
which the Minister may issue a regulative native specimen export permit.
As for other Part 13A permits, the Minister must be satisfied that it
not be detrimental to the survival of the taxon to which the species belongs
or to any relevant ecosystem. Senate amendments impose a tougher requirement:
the Minister must be satisfied that a permit would not be detrimental
to the species' 'conservation status' rather just its survival. The Minister
cannot issue a permit authorising the export of a live native mammal,
live native reptile, live native amphibian or live native bird unless
satisfied that the export is an eligible non-commercial purpose. Senate
amendments expand this restriction to live terrestrial invertebrates and
live freshwater fish as prescribed by regulations. The Bill also provides
for special requirements for eligible listed threatened species.
New section 303DJ provides that the Minister must
establish a register similar to that described under new section 303CK
above.
Division 4 - import of regulated live specimens.
Regulated live specimens are live animals or plants not
in Part 1 of the new section 303EB 'list of specimens suitable
for live import'. The new section 303EB list is divided into two parts:
- Part 1 is to be a list of unregulated specimens, and
- Part 2 is to be a list of allowable regulated specimens.
The combined Part 1 and 2 list is to initially be made
up of the equivalent lists currently in operation under the WPA. The list
can be amended once the Bill is in force, but there are various restrictions
and consultation requirements. Any amendment of the list, other than to
correct technical inaccuracies, is disallowable by either House of Parliament.
Before the Minister can amend the list, an environmental assessment must
be done. In terms of process and content, an assessment must, amongst
other things, provide for:
- the publication of the draft terms of reference for public comment
for a period of at least 10 business days
- the publication of the draft assessment report for public comment
for a period of at least 20 business days, and
- the finalisation of the report must take into account the comments
(if any) received after publication of the draft report.
New section 303EJ allows the Minister a five year
period to 'review' his or her decision on amending or refusing to amend
the list of specimens suitable for live import without commissioning a
new environment assessment. This situation would seem to apply even if
there was a material change of circumstances in the time since the original
Ministerial decision was made.
New section 303EK creates an offence of importing
a regulated live specimen unless in accordance with the appropriate permit.
The penalty for breaching new section 303EK is up to ten years
imprisonment or a fine up to 1000 penalty units, or both.
New section 303EN sets out the circumstance in
which the Minister may issue a permit for a regulative live specimen that
comes under the Part 2 new section 303EB list. The key new requirement
over that currently in the WPA is that the Minister must be satisfied
the import would not be likely to threaten biodiversity in the Australian
jurisdiction. The Bill's Explanatory Memorandum comments that 'this is
a major advance that will boost the capacity of the Federal Government
to protect Australia's unique environment from potentially invasive species'.(12)
The Senate has added a requirement that the Minister be satisfied that
the proposed import would not be detrimental to the conservation status
of a species or ecological community.
Other new section 303EN requirements include that
welfare conditions and any other restrictions or conditions noted for
that species on the Part 2 list under new section 303EB have been, or
are likely to be complied with.
New section 303EQ provides that the Minister must
establish a register that contains 'prescribed particulars' of applications
for import permits under new section 303EL and prescribed particulars
of decisions by the Minister under new section 303EN. The register must
be made available on the Internet.
New sections 303ER-EW cover the marking of regulated
live specimens for the purpose of identification.
New section 303ES defines what specimens may be
marked subject to section 303EU.
New section 303EU provides that the Secretary
may make a determination in writing about the marking of specified kinds
of specimens for the purposes of identification, which specimens are to
be marked, how and when it is to be done etc. It also provides that in
the case of a live animal, a determination must not require marking that
involves undue pain or distress to, or risk of death of, the animal and
that in the case of a live plant, a determination must not require marking
that involves undue risk of death of the plant. The Secretary's determinations
are disallowable by either House of Parliament.
New section 303EV creates an offence where:
- an owner fails to comply with a determination made under new section
303EU, or
- a person engages in conduct that causes the removal of the mark, or
interferes with the mark or renders the mark unusable, except where
such conduct is in accordance with a determination under new section
303EU.
Any new section 303EV offence is punishable by a fine
of up to 120 penalty units.
Division 5 - Concepts relating to permit criteria
New section 303FA provides that an export of a
specimen can be counted as an 'eligible non-commercial purpose export'
only if the purpose of the export is
- research in accordance with new section 303FC. Note that Senate amendments
remove research on the maintenance and / or improvement of human health
from the categories of eligible new section 303FC research. Another
Senate amendment reduces the allowable commercial component of any research
in order for to be counted as having an eligible non-commercial purpose.
This reduction in the allowable commercial element is repeated for new
sections 303FD-FI
- education in accordance with new section 303FD
- an exhibition in accordance with new section 303FE. Note that Senate
amendments incorporate a more restrictive definition of exhibition
- conservation breeding or propagation in accordance with new section
303FF
- for household pets in accordance with new section 303FG
- for personal items in accordance with new section 303FH
- a travelling exhibition in accordance with new section 303FI.
New section 303FB provides that an import of a
specimen can only counted as an 'eligible non-commercial purpose import'
if the import was done for same purposes outlined in section 303FA
above.
New section 303FF, which relates to export or
import for conservation breeding or propagation makes a change on the
current WPA provisions in relating to non-commercial activities of zoos.
The change is that zoos will no longer be required to be approved zoological
organisations in order to export and import specimens for exhibition,
conservation breeding or propagation. The Explanatory Memorandum comments
that the change incorporates ' a more appropriate focus on the purpose
of export or import and the conservation program itself. However, it is
a fundamental requirement that, for both categories (exhibition and conservation
breeding), the export or import must not be primarily for commercial purposes.
Accordingly, a permit may not be granted for a transaction that is motivated
by commercial interest rather than the legitimate objectives of exhibition
or conservation breeding.'(13)
New section 303FJ provides that an export of a
specimen can counted as an 'eligible commercial purpose export' only if
the purpose of the export is an
- approved captive breeding program in accordance with new section 303FK
- approved artificial propagation program in accordance with new section
303FL
- approved aquaculture program in accordance with new section 303FM
- approved wildlife trade operation in accordance with new section 303FN,
and
- approved wildlife trade management plan in accordance with new section
303FO.
New section 303FN deals with approved wildlife
trade operations. It effectively replaces the controlled specimen provisions
in the WPA. It provides that a specimen is an export from an approved
wildlife trade operation if the specimen is, or is derived from, a specimen
that was taken in accordance with an operation that has been declared
by the Minister to be an approved wildlife trade operation.
New subsection 303FN(3) provides that the Minister
may only make such a declaration if he or she is satisfied that the operation
is consistent with the objects of Part 13A, is not detrimental to the
survival or conservation status of a taxon to which the operation relates,
and meets any other conditions specified in the regulations. If the operation
involves the taking of live specimens that belong to a taxon specified
in regulations, the Minister must also be satisfied that the operation
is likely to comply with the conditions that, under the regulations, are
applicable to the welfare of the specimens. The Minister must 'have regard
to' the significance of the impact on an ecosystem and the effectiveness
of the management operations for the operation, including monitoring procedures.
The Minister may have regard to relevant State and Territory legislation
applying to the species, including its effectiveness. Senate amendments
require the Minister to also have regard to the effectiveness of legislation
in the receiving country relating to welfare, protection, or conservation
of the specimens to which the operation relates.
Note that a wildlife trade operation must involve the
taking of specimens and fall within one of the following categories
- a market-testing operation as defined under the regulations
- a small-scale operation as defined under the regulations
- a developmental operation as defined under the regulations
- a commercial fishery as defined under the regulations
- a provisional operation as defined under the regulations, and
- another kind of operation specified in the regulations.
New section 303FO provides that the Minister may,
by instrument published in the Gazette declare an operation to
be an approved wildlife trade management plan for the purposes of this
section. The approved wildlife trade management plan provisions effectively
replace the WPA management program provisions.
Subsection 303FO(3) provides that the Minister
must not make a declaration unless satisfied that:
- the plan is consistent with the objects of Part 13A; and
- there has been an assessment of the environmental impact of the activities;(14)
and
- the plan includes management controls directed towards ensuring that
the impacts of the activities covered by the plan, on the taxon to which
the plan relates or on any taxa that may be affected by the activities,
or on any relevant ecosystem are ecologically sustainable; and
- the activities covered by the plan will not be detrimental to the
survival or conservation status of the taxon to which the plan relates,
or to any relevant ecosystem; and
- the plan includes measures to mitigate and/or minimise the environmental
impact of the activities covered by the plan, and includes measures
to monitor that impact and the ability to respond to changes in that
impact; and
- if the plan involves the taking of live specimens that belong to a
taxon specified in the regulations, the Minister must also be satisfied
that the operation is likely to comply with the conditions that, under
the regulations, are applicable to the welfare of the specimens; and
- meets any other conditions specified in the regulations.
The Minister must also have regard to the existence and
effectiveness of any State or Territory legislation that relates to the
protection, conservation or management of the specimens to which the operation
relates.
New section 303FP deals with accredited approved
wildlife trade management plans. Specimens taken in accordance with an
accredited wildlife trade management plan may be exported without an export
permit under this Part (referred to in new subsection 303DD(3).
Subsection 303FP(3) provides that the Minister
may only declare a plan an accredited wildlife trade management plan if
he or she is satisfied that
- The plan is in force under a law of the Commonwealth or of a State
or Territory; and
- meets the conditions for an approved wildlife trade management plan
under new subsection 303FO(3); and
- imposes limits in relation to the taking of specimens; and
- includes compliance and enforcement measures that are likely to be
effective in preventing the trade or export of specimens taken in breach
of the plan; and
- provides for monitoring of the taking and the export of specimens
under the plan; and
- provides for statistical reports about specimens taken under the plan
to be given to the Minister on a regular basis. These reports are to
be publicly available on the Internet unless the Minister decides this
could substantially prejudice a person's commercial interests. Note
that this commerciality exemption has been deleted by Senate amendments:
and
- meets any other conditions specified in the regulations.
Senate amendments require that, before making a declaration
under new section 303FP, the Minister must also be satisfied that the
implementation of the plan would be 'beneficial to the conservation of
the taxon to which the plan relates'. The Senate has also inserted a provision
that such declarations are disallowable by either House of Parliament.
New section 303FQ requires the Minister to consult
a relevant agency of each affected State and self-governing Territory
before making a new section 303FO or FP declaration. The Explanatory Memorandum
that comments that 'affected' jurisdictions may include more than just
those actually covered by the trade management plan.
New section 303FR requires the Minister must seek
public comment before making a new section 303FN, FO or FP declaration.
The Minister must publish an Internet notice setting out the proposal
and providing sufficient information to enable persons and organisations
to consider adequately the merits of the proposal and invite comments
for a period of no less than 20 business days. Senate amendments extend
this period to 28 business days. The Minister must consider the public
comments received in accordance with new section 303FR in reaching
a decision about the declaration.
Division 6 - Miscellaneous
New section 303GA covers situations where actions
requiring certain Part 13A permits may also be an EPBCA controlled action
or otherwise require an additional non-Part 13A permit or Ministerial
approval. It also covers situations where the action is 'related' to a
second action that itself is a controlled action or otherwise require
an additional non-Part 13A permit or approval. For example, the taking,
handling or processing of a specimen would be a related action to the
import or export of that specimen.
The effect of new section 303GA is that the Minister
cannot make a decision on the Part 13A permit until he or she also makes
a decision on the controlled action / non Part 13A permit question. The
Minister must also refuse to grant the Part 13A permit if he or she refuses
permission to the related action.
New section 303GB allows the Minister to issue
a permit to a person who has applied for an import and export permit under
new sections 303CG, 303DG or 303EN even if the Minister is not satisfied
about a matter that is a normally a requirement for granting the permit.
In doing so, the Minister must be satisfied that the export or import
of the specimen would not be contrary to the objects of Part 13A, it would
not adversely affect biodiversity, and there are exceptional circumstances
that justify the import/export. Such 'exceptional circumstances' permits
only remain in force for a maximum of 6 months in relation to CITES specimens
and 12 months for non-CITES specimens.
Before the Minister can issue a new section 303GB permit,
he or she must publish an Internet notice setting out the proposal to
issue the permit and inviting comments within a period of no less than
5 business days. The notice must include sufficient information to enable
the merits of the proposal to be adequately considered. The Minister must
consider any comments received before deciding whether or not to issue
the permit. Note that this public consultation requirement has been replaced
by Senate amendment new section 303GEA which introduces extensive
consultations requirements for all Part 13A permits, although regulations
may exclude some types of permits from these requirements.
New section 303GC allows the Environment Secretary
to apply to the Minister for a permit to take the action or actions specified
in the permit without breaching new sections 303CC, 303CD, 303DD or 303EK.
The permit can only be issued in relatively limited circumstances, and
in most cases only where the specimen will be used for identification
purposes, education or training and the foreign authority importing or
exporting the specimen is the CITES authority of the relevant country.
Section 303GD provides that the Minister may issue
a permit to bring a non CITES specimen into the Australia for the purposes
of conducting tests. New subsection 303GD(7) provides that the
Minister may only issue such a permit if he or she is satisfied that
- the person has applied to the Minister for the list of specimens suitable
for live import (see new section 303EB) to be amended by adding an item;
and
- an assessment is to be made under new section 303EE and the terms
of reference for a report on that assessment have been finalised; and
- the action proposed involves conducting tests on the specimen in order
to obtain information that is required for the assessment; and
- it is not practicable for the person to obtain the information necessary
for the assessment without conducting the tests in Australia; and
- the tests will be conducted in a controlled environment.
The permit is also subject to conditions about holding
the specimen in quarantine.
New sections 303GE-GI deal with various aspects
of Part 13A permits. Breaches of permit conditions attract a penalty of
300 penalty units, or 600 units where the breach relates to the sale,
disposal, release or escape of the specimen.
New section 303GJ list the decisions made under
Part 13A that are potentially reviewable by the Administrative Appeals
Tribunal, or its proposed successor, the Administrative Review Tribunal.
New section 303GN creates offences for the possession
of CITES or regulated live specimens, unless they, or the specimens of
which they are progeny, were lawfully imported into Australia. It is sufficient
if the person charged was reckless(15) in relation to the fact
that the specimen was a CITES or regulated live specimen. A person also
has an evidential burden to show that the specimen, or the specimens of
which they are progeny, were lawfully imported. The penalty for contravening
new section 303GN is imprisonment for 5 years or 1,000 penalty
units, or both.
New section 303GO provides that regulations made
for the purposes of new paragraphs 303CG(3)(c), 303DG(4)(b), 303EN(3)(e),
303FN(3)(c) or 303FO(3)(f) may provide for a range of matters relating
to the welfare of live animals or live plants.
New section 303GP creates a makes it an offence
for a person to export or import a live animal in a manner that subjects
the animal to cruel treatment. The offence applies when the animal is:
- a CITES specimen and the person contravenes new sections 303CC or
303CD; or
- a regulated native specimen and the person contravenes new section
303DD; or
- a regulated live specimen and the person contravenes new section 303EK.
Again the mental fault element is recklessness. The offence is punishable
by up to two years imprisonment. Although there is no explicit provision
for a fine under new section 303GP, section 4B of the Crimes Act 1914
would allow a court to impose a fine of up to 120 penalty units instead
of, or addition to, two years gaol.
New section 303GQ makes it an offence to intentionally
import a specimen that has been illegally exported from a foreign country.
A prosecution under this clause can only proceed if the relevant CITES
authority of the country from which the specimen has been exported requests
assistance or an investigation of the offence. The penalty for contravening
new section 303GQ is imprisonment for five years.
New section 303GT provides that a witness for
the prosecution is not to be compelled to disclose the fact that he or
she received any information, the nature of the information received or
the name of the person who gave them the information.
New section 303GV provides that the requirements
of Part 13A apply in addition to all laws of the Commonwealth or of an
external Territory, including the Customs Act 1901 and the Quarantine
Act 1908.
New section 303GW provides that a specimen that
is brought into Australia or an Australian external territory for the
purpose of transhipment to another country or as part of a ship's or aircraft's
stores is not deemed to have been imported for the purposes of Part 13A.
Likewise it is not deemed to have been exported once the stores or transhipment
leaves again. New subsection 303GW(5) provides that a specimen
is not deemed to have been imported / exported if the Minister or certain
officials consider that a specimen is required to be sent in or out of
Australia or an Australian external Territory for an emergency treatment
of a human or animal.
New section 303GX provides that certain actions
by a 'traditional inhabitant' in the Torres Strait protected zone are
not deemed to be an export or import for the purposes of Part 13A. These
circumstances include where the specimen is owned or under the control
of a traditional inhabitant and has been, is being or will be used in
connection with the performance of traditional activities. This section
replicates existing section 8A of the WPA and is consistent with Torres
Strait Treaty between Australia and Papua New Guinea.
Item 12 amends existing subsection 391(3) of the
EPBCA which lists those decisions in which the Minister must take account
of the precautionary principle.(16) Item 12 adds a number
of provisions of Part 13A to this list.
Items 13-25 relate to the role of Customs officers
performing wildlife import / export compliance duties such as inspections
and seizures.
Item 26 inserts a new Division 8A to Part
17 of the EPBCA. It empowers an authorised officer to question a person
suspected to have been involved in committing a Part 13A offence. Failure
to answer, or knowingly giving a false or misleading answer to such a
question is punishable by a penalty of up to ten penalty points. However,
it is not an offence if a person refuses to answer on the grounds of self-incrimination.
Item 28 inserts several new sections relating
to the seizure of specimens on the grounds of a Part 13A offence. New
section 444A allows an authorised officer to seize a specimen on the
grounds of reasonable suspicion that the specimen has been involved in
a Part 13A offence. A written notice must be given to the person from
whom the specimen was seized giving reasons for the seizure and setting
out the process for applying for the return of the specimen: new section
444B. Return of specimens can done either through application to the
Environment Secretary or through court action.
Item 37 inserts new definitional provisions covering
various concepts, including 'specimen', 'bred in captivity', and 'artificially
propagated'.
Items 38-67 insert more new definitional provisions.
Items 70-81 contain various transition items.
Notably, item 70 provides that with some limited exceptions, if
an application for a WPA permit or authority has been made but not decided
at commencement of item 70, the application will be considered as if made
under the equivalent new provisions under Part 13A. Similarly, item
71 provides that a valid WPA permit or authority that is in force
immediately prior to the commencement of this item will continue to be
valid.
Item 82 provides that regulations may be made
for matters relating to transitional arrangements.
Items 83-86 make some technical amendments to
the EPBCA not directly related to wildlife matters.
New section 25A allows regulations to be made
identifying actions or classes of actions that are taken to have a significant
impact on matters of national environmental significance. This will mean
that actions in a class specified in such a regulation will be a controlled
action for the purposes of the EPBCA. According the Explanatory Memorandum,
this is to allow the Minister to 'provide greater certainty for stakeholders
in relation to the actions that will be covered by the provisions in Division
1 of Part 3'.(17)
New sections 25B -25F relate to evidentiary certificates.
In particular, new section 25B allows the Minister to issue an
evidentiary certificate that states, for example, if a person proceeds
with a specified action without obtaining Ministerial approval under the
EPBCA controlled action provisions, the person will be contravening Part
3 of the EPBCA. Under new section 25D, the certificate provides
prima facie evidence to a Court in proceedings involving the seeking of
an injunction under section 475 of the EPBCA or civil penalty under section
481.
Item 84 amends existing section 70. Where
a person fails to refer an action as requested by the Minister for consideration
as to whether it is a controlled action, item 84 allows the Minister to
make a decision as to whether it is a controlled action.
Items 85-86 repeal existing section 524B which
deals the making of regulations to provide guidance on whether an action
is likely to have a significant impact for the purposes of the EPBCA.
These repeals are consequential to the insertion of new section 25A
under item 83.
Item 1 repeals the Wildlife Protection Act.
Items 2-3 are transitional items relating to existing
court proceedings and witness protection issues.
Item 4 provides that regulations may be made for
matters of a transitional nature relating to the repeal of the Wildlife
Protection Act.
Item 1 amends paragraph 5(2)(b) of the Biological
Control Act 1984 by replacing the existing reference to the Wildlife
Protection Act with a reference to Part 13A of the EPBCA.
The Bill contains a number of improvements over the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 particularly
in relation to assessment of wildlife utilisation and trade and also the
strengthening various offence and enforcement provisions. However, given
the relatively large and complex nature of the Bill, a Parliamentary committee
for inquiry would enhance public scrutiny and understanding of its provisions.
- Although the Act itself did not come into effect under May 1984.
- John Ley, Australia's Protection and Conservation of Wildlife
Report on the Review of the Wildlife Protection (Regulation of Exports
and Imports) Act 1982 and Regulations April 1992
- Analysis Bills Digest 107 of 1995 at http://search.aph.gov.au/search/ParlInfo.ASP?action=view&item=140&from=browse&path=Legislation/Bills+Digests/1995&items=141
- Senate Debates 9 May 1995 p. 43.
- Response tabled by Senator Minchin, 8 December 1999, p 11459 accompanied
by statement by Senator Hill.
- What constitutes a specimen is more fully defined in item 37 of the
Bill, but essentially it includes an animal or plant, any part of an
animal or plant (including skin, feathers etc), or any animal or plant
reproductive material, or any article wholly produced or derived from
a single animal or plant.
- Cetaceans include whales, dolphins and porpoises.
- One penalty unit equals $110.
- Explanatory Memorandum, p. 18.
- p. 21.
- The Bill maintains the WPA ban on the commercial trade of live native
mammals, reptiles, amphibians and birds.
- p. 30.
- p. 33.
- Senate amendments require this assessment to cover certain defined
issues.
- Recklessness in relation to a circumstance is defined in subsection
5.4 of the Criminal Code as being 'aware of a substantial risk that
the circumstance exists or will exist; and having regard to the circumstances
known to him or her, it is unjustifiable to take the risk'.
- The precautionary principle is defined in the EPBCA as the 'lack of
full scientific certainty should not be used as a reason for postponing
a measure to prevent degradation of the environment where there are
threats of serious or irreversible damage'.
- p. 52.
Angus Martyn
26 June 2001
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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