International trade control framework
This chapter considers international efforts to implement domestic trade
controls for ivory and rhino horn items. The chapter then considers in more
depth the UK framework, which was identified by a significant number of
stakeholders as a model of best practice.
Since 2016, the United States (US), China and Hong Kong, Taiwan, France
and the United Kingdom (UK) have all announced, or implemented domestic trade
bans for ivory. Other nations, such as those in the European Union, Thailand
and Japan are reviewing or strengthening existing measures.
Supporters of the UK framework urged the Commonwealth government to use
this framework as a model for its own domestic trade ban. Each of the
exemptions specified in the UK framework are discussed in this chapter, together
with compliance, enforcement, offences and sanctions measures.
Finally, the chapter concludes with consideration of the Australian
Constitution, and how best to proceed with a domestic trade ban in
Since the 2016 Conference of the Parties (CoP17) of CITES, several
countries have implemented or announced the closure of their domestic markets
for the commercial trade in ivory. A summary of a number of these countries is
provided in the following sections.
The United States
The US Fish and Wildlife Service (FWS) instituted a 'near-total'
domestic trade ban of ivory in June 2016 to reduce the movement of ivory within
The ban fulfilled the 2013 restrictions announced by former President Barack
Obama as part of his executive order to combat wildlife
in response to criminal investigations that revealed the legal ivory market was
serving as a cover for the illegal ivory trade.
The rules implemented by the FWS 'limits the imports, exports and sales
of African elephant ivory across state lines',
whilst allowing for activities such as the:
...movement of ivory for law enforcement and bona fide
scientific purposes, and the non-commercial movement of certain items, such as
museum specimens and musical instruments containing antique ivory or ivory
removed from the wild prior to the listing of African elephants under [CITES].
The rules implemented a number of exemptions, including: a 100 year rolling
ban that allows ivory items older than 1918 to be sold, with the cut-off year
rising annually; a de minimus exemption for items that contain less than 200
grams of ivory and comprising less than 50 per cent ivory by value and volume;
and an exemption for musical instruments containing ivory.
The US government's domestic ban only applies to trade across state
borders (due to it being a federated system); however, some state governments
have since implemented their own bans on the sale of ivory items, including New
York State, New Jersey, California and Hawaii.
A consequence of the US system is that regulations differ between federal and
state jurisdictions. For example, the 50 per cent de minimus threshold at
a federal level is different to threshold amounts at a state level, which takes
priority. Subsequently the US has de minimis thresholds 'between five and 20
per cent de minimis level, depending on which state you're in'.
Mr David Cowdery of International Fund for Animal Welfare (IFAW)
commented that the US approach has made 'a very confusing system'.
There have been significant declines in the trade of ivory items since
federal and state bans were implemented. Import data between the UK and the US
shows 3526 pieces entered the US from the UK in 2010, and in 2015 that number
reduced to just 17 items.
Further, ivory vendors and ivory items sold in both New York State and
California have significantly declined, as demonstrated in Table 7.
Table 7: Number of ivory vendors and ivory items, New York
|New York State
China and Hong Kong
At the end of 2017, China had fully implemented a ban on all ivory trade
and processing activities, which included all international trade into and out
of China (except for pre-CITES specimens) and the closure of all domestic
The ban also extended to online sales and souvenirs purchased
There are several exemptions to China's domestic trade ban. For example,
it still permits 'the transport, gifting and display of ivory', as well as the auction
of ivory relics (defined as 'valuable works of art and handicraft articles
dating from various historical periods').
The ban does not specify cut-off dates.
Museums and private collectors of ivory antiques are exempted.
The Chinese ban has succeeded in undermining the price of ivory in both
China and Hong Kong. In 2015 ivory was $1322 per kilo, and in October 2016 it
dropped to $750 per kilo.
In early 2018, a sale of tusks weighing 204 kilograms recorded a record low of
$400 per kilo.
According to the Xinhua News Agency, the ban had resulted in an 80 per cent
decline in seizures of ivory imported into China, and before its total ban, the
price of raw ivory had decreased by 65 per cent.
In Hong Kong, the Protection of Endangered Species of Animals and Plants
(Amendment) Ordinance 2018 came into effect on 1 May 2018. This amendment is
the first step in a three-part plan to bolster regulations on the import and
export of ivory and elephant hunting trophies, along with the domestic ivory
trade in Hong Kong.
The next phase of the plan, which commenced on 1 August 2018, saw a ban on
importing and re-exporting of pre-CITES ivory, and implemented licensing
controls for 'commercial possession of pre-Convention ivory in local markets'.
The final phase will ban the commercial possession of all ivory in Hong Kong,
excluding antique ivory, by 31 December 2021.
The European Union and France
In 2016, the European Union (EU) voted in support of a global ban on
ivory trade, which included the commencement of a consultation process on
proposed legislative action.
The French government implemented an ivory and rhino horn trade ban in
France and all overseas French territories in May 2016. The ban permits the
sale of worked ivory as late as 1 July 1975 when an item is supported by CITES
Taiwan, Thailand and Japan
Taiwan, Thailand and Japan have announced measures to restrict the
domestic trade in ivory. The Taiwan government has reportedly determined that
'the most prudent course of action would be an outright ban for its domestic
and the Japanese government has announced a plan to introduce a registration
system for the domestic ivory trade.
Thailand, once believed to have had the largest unregulated market in
the world, has since 2014 transitioned to a well-regulated ivory market. This
transition has been achieved through the revision of wildlife crime laws to
criminalise the import, export and sale of African elephant ivory, and the
introduction of the Elephant Ivory Act 2015 to regulate the domestic
market, including a national register of ivory stocks. Evidence of its success
was supported by a June 2016 survey that revealed a 96 per cent drop in the
amount of ivory being openly sold by retailers in Bangkok.
The United Kingdom: a model of best practice?
Whilst acknowledging the considerable efforts of the international
community to implement domestic ivory trade bans, the committee heard
overwhelming support for the United Kingdom (UK) government's proposed framework.
On 6 October 2017, the UK government announced it would impose a ban on
the sale of elephant ivory. At that time, the UK Secretary of State for
Environment, Food and Rural Affairs, the Honourable Michael Gove MP, declared
that '[i]vory should never be seen as a commodity for financial gain or a
status symbol' and for that reason, the UK government will 'introduce one of
the world's toughest bans on ivory sales to protect elephants for future
generations' and demonstrate the UK government's 'belief that the abhorrent
ivory trade should become a thing of the past'.
The initial announcement noted that the ban would cover ivory items of
all ages, not just those created after a certain date, and proposed four
exemptions: musical instruments; items containing only a small proportion of
ivory (de minimis exemption); items of 'significant historic, artistic and
cultural value'; and sales to and between museums.
At the time of the announcement, regulations concerning ivory prohibited the
trade of raw ivory and allowed 'worked ivory items produced after 3 March 1947
to be sold with a certificate, with no restrictions at all on worked ivory
produced before that date'.
As part of this announcement, the UK government initiated a 12-week
consultation process to work with conservationists, the arts and antique industries,
and other interested parties to determine how the exemptions would be defined,
implemented and enforced.
This consultation process generated over 70 000 responses, with over 88 per
cent of respondents supporting a domestic trade ban.
In April 2018, the UK government released a summary of responses to the
government's proposal to ban UK sales of ivory, along with its policy response.
The UK government confirmed that it would proceed with the ban 'on
concerning ivory in the UK that could directly or indirectly fuel the poaching
The response noted that the ban would not impact on the 'right to own, gift,
inherit or bequeath ivory where that is currently allowed'.
Further, the report included the details of five proposed exemptions for
commercial activities (considered in more detail at paragraph 3.38):
de minimis is to include items with an ivory content of
less than 10 per cent by volume, and made prior to 1947;
musical instruments are excluded if they have an ivory content
of less than 20 per cent, and were made prior to 1975;
that were produced 100 years prior to the ivory ban coming into force;
rare and most important items of their type
that contain ivory, are considered 'outstandingly high artistic, cultural
or historical value' and are 'the rarest and most important item of their
accredited museums and their commercial activities which
include sales, loan and exchanges of items to, or between, museums will be
permitted. These accredited museums will also be permitted to sell to, or buy
from, non-UK museums that are recognised by the International Council of
To ensure compliance with these new measures, the UK government
announced that the Animal Plan and Health Authority (APHA) would implement and
administer an online registration of ivory items in the UK. This online
database will be accessible by the government, the regulatory body and the UK
The UK government also announced a new registration system for the sale
of ivory items. If an owner of an ivory item intends to sell such an item, then
that person will need to apply for an exemption through APHA and provide
provenance documentation. If the seller believes the item would qualify for the
rarest and most important items exemption, then an institution with a
recognised specialist will need to assess the validity of the claim.
With regard to CITES, the UK government stated the new measures would
'build upon, rather than replace, current CITES rules'
No item that cannot be sold now, will be permitted to be sold
after the ban is implemented. Items that currently need a certificate to be
sold, imported or re-exported under the EU Wildlife Trade Regulations will
continue to require one. This will be in addition to having to comply with the
The UK government will delegate enforcement responsibility to an existing
regulatory body that will work with the UK Police, a wildlife crime unit and
the UK Border Force. This regulatory body will be provided powers to enable the
detection and pursuit of illegal sales and instances of non-compliance, along
with the power to issue civil penalties to those who breach the ivory sales
Police and customs officers will use their powers to investigate and charge
breaches of the ban.
The Ivory Bill 2017–19 (the UK Ivory Bill) will introduce new offences. These
offences include civil
sanctions, dependent on the nature of the breach.
The three categories of offences that apply to the commercial use of ivory are:
engaging in commercial activity without meeting an exemption;
improperly or falsely registering an item for exemption from
causing or facilitating the sale of ivory or other commercial
British High Commissioner to Australia, Her Excellency Menna Rawlings,
informed the committee that the UK Ivory Bill was introduced to the UK Parliament
on 23 May 2018. Once passed, there will be a six-month period before the Act
enters into force to ensure adequate time for people to prepare for its
introduction and application.
Exemptions and their application
within an Australian framework
The committee heard overwhelming support for the UK framework and its limited
exemptions for commercial trade. Support for the UK framework was expressed by
a range of stakeholders, many of whom advocated for implementation of a similar
framework in Australia.
IFAW opined that the UK framework 'was a very well thought-through piece
of legislation as a whole' and recognised the purpose of the exemptions is to
'remove the value of ivory...so you're not celebrating ivory or putting a price
tag on it'.
The Animal Defenders Office (ADO) commented that the UK framework seemed 'reasonable
and limited', and thought it sound for there to be similar exemptions should a
domestic ban exist in Australia.
Even the Australian Border Force (ABF) commented that '[c]ertainly from a
supply-and-demand perspective, if there's no demand domestically, it'd be less
likely that things are actually brought in through the border'.
However, support for specific exemptions varied. Whilst a majority of
submitters called for exemptions similar to the UK framework, others expressed
caution, and warned that there is a risk of ongoing laundering if exemptions
are not heavily monitored and enforced.
Nature Needs More raised this concern. It supported an Australian
framework with exemptions for ivory items (specifically supporting the musical
instruments and museum exemptions), however:
If these exemptions exist, the key thing is that we would
like to know that they're being heavily regulated so there's no opportunity for
laundering—no loopholes for laundering new product into the market.
The Thin Green Line Foundation, which called for a complete ban, expressed
a similar view:
...we certainly appreciate and understand the calls for
exemptions for musical instruments and other artefacts of cultural value; but,
from our evidence in the field and our perspective, the more exemptions that
you have, the greater the loophole there is for laundering the illegal products
through that trade. We do understand why those exemptions are being asked for,
and...there would need to be a heavily regulated and accountable process if those
exemptions were brought into force.
This concern was shared by Professor Grant Pink, who argued 'the fewer [exemptions]
the better from law enforcement's perspective because the more exemptions that
exist the more challenging it is' when determining whether an item is legally
or illegally traded.
A number of submitters highlighted the importance of carefully defined
exemptions. The Environmental Investigation Agency (EIA) supported three of the
exemptions included in the UK framework (de minimis, musical instrument and
museums) but urged Australia to ensure exemptions are 'as narrow and
tightly-focused as possible and limited to domestic trade (i.e. any exempt
items should not be allowed to be imported/exported)'.
This view was shared by Gordon Consulting, which added that these narrowly
defined 'exemptions should not contribute to poaching or illegal trade'.
Dr Rebecca Johnson from the Australia Museum and Museums and Galleries
Australia called for a domestic ban, but explained the ongoing threat to elephant
and rhino populations means exemptions should only be applied to 'collecting
institutions such as museums', and 'any exemptions be made only on the basis of
rigorous science being applied to validate those claims as the exemption', such
as radiocarbon dating.
Each of the exemptions found in the UK framework are discussed in the
following sections. The UK framework is explicitly designed for ivory, and for
this reason, the commentary is focused on ivory items and excludes rhino horn.
The UK government advised the committee that it had recently
strengthened its measures to protect rhinoceros. For example, since 2010 the UK
no longer issues CITES permits for people wanting to re-export rhino products,
unless they meet a strictly limited criteria. These measures were adopted by
the EU in 2014.
The de minimis exemption, as defined under the UK framework, applies to
items made prior to 1947, which contain an ivory content of less than 10 per
cent of its total volume. The UK government stated that a 10 per cent threshold
is both strong and practical to enforce;
whilst the 1947 date threshold aligns with the current pre-CITES date threshold
for ivory items established under EU Wildlife Trade Regulations.
The UK Ivory Bill specifies that the ivory content must be 'integral' to
the item, meaning that it cannot be 'removed from the item without difficulty
or without damaging the item'.
Several civil society organisations supported the de minimis exemption.
IFAW called for Australia to adopt the de minimis exemption with a 10 per cent
IFAW's Mr David Cowdery advised the committee that it was a good idea
because 'it removes all solid ivory items from the market'.
Whilst the UK's de minimis threshold was supported by many submitters,
others argued in favour of either a higher or lower ivory content threshold.
For example, the Born Free Foundation submitted that the Californian de minimis
threshold should be considered, with an exemption for antique items that
contain 200 grams or less of ivory and an ivory content of less than five per
By contrast, the Australian Antique & Arts Dealers Association (AAADA) called
for the ivory content threshold to be slightly increased 'because it would
exclude a lot of items'.
Bloomsbury Antiques supported the UK framework. Its manager, Therese
Howard informed the committee that she agreed with the exemptions found in the
UK framework, and thought the date thresholds were quite generous.
Leonard Joel reported that its self-imposed de minimis principle applied
to items 'where the ivory component is integral but so insignificant that it
cannot be meaningfully contributing to maintaining the value or trade in ivory',
with the aim to 'disrupt
the value in ivory while respecting the incidental, ancillary or insignificant
use of ivory within the decorative arts'.
Leonard Joel's de minimis principle is defined under the term 'incidental
an item with ivory content that is fixed or an integral
component(s) of a larger manufactured or handcrafted item, which the ivory is
not its primary source of value, 'that is, the ivory does not account for more
than 50 [per cent] of the value of the item';
an item that does not include raw ivory;
an item not made wholly or primarily of ivory, and that the ivory
content does not account for more than 50 per cent of the item by volume; and
the total weight of the ivory in the item is less than 200 grams.
Jane Raffan from the Auctioneers and Valuers Association of Australia
(AVAA) raised the issue of different threshold being legislated in different
jurisdictions, and advised that different thresholds are 'potentially
problematic and large for the antiques industry'; however, AVAA supported the:
...main principle, which is to devalue ivory. The UK's Ivory
Bill ensures that the value for decorative arts and other material being traded
is not tied to the ivory component because of its strict de minimis ratio.
Devaluing ivory through restricting trade is a significant benchmark of
conservation efforts and the AVAA supports this endeavour.
The importance of devaluing ivory was highlighted by the Australia
Museum, which informed the committee that since July 2017 a national framework
for valuation of collections was adopted by the Council of Australasian Museum
This framework prevents ivory and rhino horn being valued to address the
'perception in the sector that valuing that material basically encourages trade
in that material'.
A range of musical instruments have used ivory material: namely piano
keys, violin bows and bagpipes. In recognition of their use, the UK framework
establishes a separate exemption for musical instruments. The ivory content threshold
is set at 20 per cent by volume, and applicable for instruments made prior to
1975. The UK government's submission clarified that the 20 per cent ivory
content threshold covered 'the vast majority of commonly used and traded
The musical instrument date threshold of 1975 differs from the de
minimis threshold 'in recognition that many instruments, such as pianos and
violin bows, continued to be made using ivory into the late 20th
century'. Further, the UK government acknowledged that many of those
instruments are still in use by professional musicians.
The UK Ivory Bill excludes items that may be used as a musical
instrument but were 'not made primarily for that purpose'. The exemption includes
'a bow, plectrum and other things made for playing a musical instrument'.
The committee heard from representatives of the music industry about the
exemption for musical instruments. Overall, music industry stakeholders
supported a domestic trade ban but called for an exemption for musical instruments
that contain ivory. The Australian Music Association (AMA) advised that many
heritage instruments contain a small amount of ivory and that these instruments
do not get discarded or thrown away. Instead, these instruments grow in value
and are exchanged between musicians.
The ivory content of these items is typically minuscule. Pianos used approximately
200 grams of ivory to cover the piano keys, whereas violins used a small amount
of ivory on the faceplate of a bow.
The AMA stated that the exemption proposed in the UK framework would sufficiently
cover both pianos and violin bows,
and the de minimis exemption, with a threshold amount of 200 grams:
...would cover the vast majority of musical instruments;
however, there are a few extremely rare, ancient instruments that would exceed
this limit, but have huge historic, artistic and cultural importance. They,
perhaps, require special protection.
For example, a larger volume of ivory is commonly used in pipe
instruments, such as bagpipes. The Celtic Piping Club explained that some pipes
have traditionally used ivory mounts and ferrules, which prevent the cracking
and splitting of wooden drones and chanters. Although this ivory is a
decorative element, it is also integral to the functions of the instrument.
The Celtic Piping Club added that these bagpipes are relatively rare, and the
use of ivory:
...has no effect on present elephant populations; it is
practically impossible to engage in trade of illegal ivory by attaching it to a
historic musical instrument. Any ban on domestic trade of pre-CITES musical
instruments containing ivory would have nil effect on eliminating global trade
in illegal ivory, but it would have catastrophic and irreversible consequences
for the historic, cultural, and artistic legacies they represent.
Another consideration is the industry's use of 'recycled ivory'. This
occurs when an older piano is discarded: its ivory content is stripped and
reused as spare parts for other pianos.
In these cases, Pianos Recycled submitted that it 'can reasonably identify and
authenticate the age of piano ivory and does already provide a heritage
certificate for an unwanted piano'.
Music industry representatives did not object to the 1975 date proposed
in the UK framework. Pianos Recycled submitted that the 1975 date is
'meaningless as no manufacturer of any repute has produced an ivory-covered
keyboard on a piano since then', and that pianos as early as the 1870s used
cellulose-nitrate instead of ivory coverings.
The AMA noted that the industry has not used ivory in making new instruments
for over 40 years.
Portrait miniatures were highly popular items between the 17th
and 19th centuries, and contain a small sliver of painted ivory.
Once existing in large numbers, portrait miniatures were eventually replaced
with a synthetic substitute and with the advent of photography.
The UK government has included an exemption for portrait miniatures
because their continued sale would not fuel the continued poaching of ivory,
and because they are valued for their artistry, rather than there ivory
This exemption permits the commercial sale of portrait miniatures 'produced
prior to 100 years before the coming into force of the UK ivory ban'.
The UK Ivory Bill establishes a pre-1918 date threshold.
The AAADA advocated for the inclusion of portrait miniatures as an
exemption because these items are 'culturally and highly definitive social
items of the time'.
The committee did not receive any objections to this exemption.
The rarest and most important items
of their type
The UK framework establishes an exemption for the 'rarest and most
important items of their type'. This exemption was based on a recognition that
there is a small:
...number of ivory items that are of outstandingly high
artistic, historic or cultural significance and that may be assessed as being
rare and important examples of their type e.g. in their particular category of
function, artistic or historical period etc. We do not believe that such items
contribute directly or indirectly to the continued poaching of elephants.
According to British High Commissioner, an assessment will be done
through a limited number of independent advisory institutions to confirm the
validity of an item's eligibility for this exemption. The High Commissioner expected
that the bar for this exemption would be set quite high and that the items are
'valued not for their ivory content but because they are of wider importance
and therefore the trading of them will not fuel the poaching of elephants'.
The UK government did not consider items eligible for this exemption would
contribute directly or indirectly to the continued poaching of elephants, and
would only apply for items 'produced at least 100 years prior' to the sales ban
coming into force (the year 1918).
The UK's inclusion of this exemption was not fully supported, in
particular by the EIA and IFAW, who engaged in the UK consultation process. The
EIA informed the committee that it was 'strongly opposed' to this exemption
We believed it would be extremely difficult to produce
adequate guidance to ensure the exemption did not become unworkable and that it
provided a potential loophole for the continued illegal trade.
Further, the EIA argued that it would be difficult to determine with
accuracy what would be covered by this exemption.
IFAW commented that the UK government had originally anticipated between
70 and 150 items per year being granted this exemption; however, argued the
bill itself had included vague terms like 'outstandingly valuable' and these
'very vague definitions' provide an opportunity for abuse 'and for the ivory
trade to continue in some form or another'.
Despite their concerns, both the EIA and IFAW highlighted the importance
of having experts from museums:
...to provide the highest possible standard and have no vested
interest in a commercial trade to make a decision about whether infact it is
absolutely the highest and the rarest and the most important of their type.
Gordon Consulting was concerned that this exemption will maintain the monetary
value of ivory, and certain items in this category would only further fuel
demand for, and the monetary value of, the ivory items.
The Australia Institute (TAI) acknowledged that a domestic ban would
result in the decline in the financial value of ivory and rhino horn goods,
including items valued for their artistic, historic and cultural worth.
However, TAI argued these items' value is not diminished by a domestic trade
ban; instead, its owners 'can continue to enjoy them, the only change is that
the artistic, historic, cultural values cannot be exchanged for money'.
The artistic or cultural value of the piece isn't lost just
because you can't trade it. The ability to change it for money is lost. And so,
strictly by the economics textbooks, that value isn't actually lost; it's that
the owner of the piece loses the ability to trade it. If
such a policy were given a decent amount of promotion and a reasonable phase-in
time, it gives people who are in that position—who do own a culturally and
historically significant piece of ivory that they see real value in—an
opportunity to say, 'I'd rather have the money' or, 'I really value this and I'd
like to keep it.'
Both the AAADA and AVAA supported this exemption.
The commercial activities of accredited museums are also exempted under
the UK framework. These museums will be permitted to continue commercial activities,
such as sales, loans and exchanges to, and between accredited museums. In
addition, accredited museums will be allowed 'to sell to, or buy from, non-UK
museums that are accredited by the International Council of Museums'.
The UK government outlined its position on this exemption, stating it did:
...not intend, through our ban on ivory sales, to affect the
display of historic, artistic and cultural items to members of the public by
accredited museums. Accredited museums play a vital role in protecting the
nation’s cultural heritage, and in making our heritage accessible to the
public, and as such will be permitted to purchase items that do not meet any of
the listed exemptions, but are in line with their acquisitions and ethical
policies. Museums accredited...must abide by strict codes of ethics and standards
of governance, including acquisitions policy.
The committee did not receive any objections to museums being exempted
under an ivory and rhino horn trade ban in Australia and such an exemption was largely
supported by supporters of a domestic ban. Representatives from the Australia
Museum declared their support for a domestic trade ban with limited exemptions 'for
collecting institutions such as museums' because 'these materials provide
essential scientific specimens that also act as a reference materials for
casework and training'.
The Australia Museum stated it is:
...strongly supportive of the continued ability of museums, in
particular, to be able to lend ivory and rhino horn materials to other CITES-registered
institutions—that those protocols are followed by a number of institutions
around the world.
Ms Slatyer added that it is important for museums to 'preserve important
elements of cultural heritage into the future'. However, an ethical consideration
'is whether museums and galleries should be in a position where they can trade
in that material'.
Ms Slatyer explained that the trade between CITES-registered museums and
galleries is not typically a commercial transaction; instead, it occurs if an
institution has multiple assets of one particular item, and trades items in
order to increase its collection.
Ms Slatyer advised that the movement of ivory and rhino horn items
between CITES-registered institutions is closely monitored, both nationally and
internationally, with 'a lot of attention paid to the provenance of that
material', and that the sector 'sees the continuation of that as being
fundamental to the core purpose of museums'.
Various stakeholders also called for museums and galleries to be
permitted under a domestic trade ban to receive donated items that are deemed
culturally significant ivory and rhino horn items. For example, John Albrecht
argued that Leonard Joel's ivory and rhino horn policy did not seek to destroy
...nor seize them: it merely seeks to remove them from
circulation and advocates for their retention by the holder or donation to a
public museum, if that is deemed significant enough.
The AVAA commented that if Australia's 'domestic ivory trade is banned, there
will still be museums the world over that'll showcase the finest examples of
carving from human history';
the Australia Museum advocated, rather than destroying ivory and rhino horn
items, for them to be:
...deposited securely in a collection such as one of the state
or territory museums so that it, too, becomes available for scientific study,
on the proviso that a secure collection storage space can be provided.
The Australia Museum confirmed that it accepts donated ivory and rhino
horn items, which is frequently done by those who have a collection. These
donations are valuable as reference material for the museum's wildlife forensic
work and training purposes. The Australia Museum informed the committee that
these items are kept under secure conditions.
In addition to the proposed exemptions, the UK framework specifies new
compliance, enforcement, offence and sanction measures. Each of these are
briefly considered below.
The UK government announced that it intends to implement a compliance
system based on a registration model administered by the Animal Plan and Health
Authority (APHA) (the UK CITES Management Authority). This includes a new
online system and database to register ivory items. In order to sell an ivory
item, the seller must register that an item meets an exemption criteria. It will
be illegal to sell an exempt ivory item that is not registered with the APHA.
Specific requirements will be applicable for each exemption.
For items deemed the rarest and most important items of their type, the
UK government will introduce a certificate system with a select number of
advisory institutions permitted to evaluate an item's eligibility and issue a
The UK government stated that the new compliance framework will build
upon existing CITES measures, and items that currently need a certificate to be
sold, imported or re-exported under the EU Wildlife Trade Regulations will continue
to do so.
An existing regulatory body will be nominated to enforce the UK ivory
ban and work closely with the UK National Wildlife Crime Unit and Border Force.
This regulatory body will be given the power to detect and pursue illegal sales
and non-compliance, and to issue civil penalties for breaches of the ban. It
will also work with the antiques industry and others most affected by the ban
in order to ensure they comply with the ban and avoid breaches.
Enforcement provisions included in the UK Ivory Bill are:
power to stop and search persons, vehicles (including vessels and
aircraft), and enter and search premises;
search warrant provisions;
powers of examination;
power to require the production of documents; and
powers concerning the seizure of ivory items.
Offences and sanctions
New offences are proposed under the UK ivory ban. A person who is found
to have breached the ban could receive either a civil or criminal sanction. If
issued a civil sanction, a person could still be subjected to criminal
prosecution if they do not comply with the terms of the civil sanction.
The three categories of offences are:
engaging in commercial activity without meeting an exemption;
improperly or falsely registering an item for an exemption; and
causing or facilitating the sale of an ivory item or other
Those found guilty of a criminal offence may be liable to either a fine
and/or a maximum prison sentence of up to five years. Civil sanctions will
depend on the type and severity of the offence and consist of: stop notices,
monetary penalties, enforcement undertakings and enforcement cost recovery
In developing the provisions of the UK ivory bill, IFAW advised that the
UK government had consulted with a range of stakeholders, including law enforcement
The application of a domestic trade ban on ivory and rhino horn items is
complicated in Australia due our federated system. The Commonwealth, under
section 51(i) of the Australian Constitution (trade and commerce with
other countries, and among the states) already regulates and restricts the
import and export of ivory and rhino horn items entering Australia.
However, the Commonwealth government is unable to legislate a domestic trade
ban within state and territory jurisdictions. The Animal Defenders Office (ADO)
stated that the division of powers between the federal, state and territory
parliaments is a key point of difference between the UK and Australia, and for
It's very difficult for the federal parliament to pass the
same sort of ban without consulting the states and territories. It has been
suggested the federal government can do a lot of it on its own, and that's
undoubtedly true, but there would still be loopholes. It would still be impossible,
for example, for you and I to meet outside this room as natural persons and
engage in an oral contract for a particular piece of ivory or rhino horn and,
if I agree to drop it off at your house afterwards, that would be completely
legal under the unilateral model because it would escape any law that could be
passed under the corporations power or the communications power. That's why
we've really emphasised the need to get the states and territories involved and
that's why we've pushed for a national agreement.
Legal advice provided by the ADO, on behalf of IFAW, outlined
constitutional considerations and legislative options available to the
Commonwealth government. Although the Commonwealth government is unable to
implement a domestic ban within the states and territories, section 51(i) of
the Australian Constitution provides the legislative power for the
Commonwealth government to regulate trade and commerce 'among the States'.
This means the trade in ivory and rhino horn between state and territory
jurisdictions could be banned.
This option would be similar to the approach taken by the US government.
The ADO also noted that section E(c) of the Intergovernmental
Agreement on Mutual Recognition and section 9 of the Mutual Recognition
Act 1992 (Cth) prevent any federal, state or territory parliament
'unilaterally banning the sale of ivory and rhino horn without first securing
an exemption to the mutual recognition principle' and an exemption of this type
would first 'need to be unanimously approved by the federal government and all
state and territory governments'.
Subsequently, the ADO concluded that the best course of action is for:
...any legislative solution to the sale of ivory and rhino horn
within Australia would have to be driven by a national agreement to ban the
sale of ivory and rhino horn within Australia.
The ADO discussed this proposal with the committee. It confirmed that a
national agreement could consist of Commonwealth, state and territory
governments signing on and agreeing to implement similar legislation in their
respective jurisdictions, or for the states and territories to refer their
powers to the Commonwealth on this matter. It added:
We're rather agnostic on whether we go down the path of the
states and territories referring their powers to the Commonwealth and passing
identical legislation or whether it's the states, territories and federal
government passing complementary legislation, but it's probably one or the
The ADO recommended this process be negotiated either through the
Council of Australian Governments (COAG) or between environment ministers. It
added that the process would need to be co-ordinated across portfolios, such as
environment, foreign affairs, trade and tourism.
The committee asked whether the Nationals Firearms Agreement was a good
example of how an ivory and rhino horn trade ban could be implemented. In
response, the ADO agreed that it is, because of:
...the way the federal government took the lead, consulted with
the states and territories and achieved a very good solution. That's certainly
one of the models we looked at in preparing our advice. Again, it came out of a
national agreement, and they passed the complementary legislation.
Finally, the ADO advised the committee that any new legislation
would need to complement the existing international control framework. For
example, the current pre-CITES date threshold for ivory products in 1975 would
need to be maintained domestically because it:
...would be absurd if a piece of ivory got into Australia and
suddenly you couldn't trade any ivory no matter what the year, so certainly
they need to be coordinated and complementary.
Complementary legislation would also be required for offences under the
national framework. Professor Grant Pink agreed that the existing penalties
under the EPBC Act sufficiently recognise that trading internationally in
illegal wildlife items is a serious criminal offence and that similar penalties
would be required at a domestic level.
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