Committee views and recommendations

6.1        On 1 July 1975, the international community united to establish the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international trade control framework 'conceived in the spirit of...cooperation' and designed to ensure the long-term survival of wild animal and plant species.[1] Since that time, CITES has encompassed over 35 000 species of animals and plants, and has grown into one of the largest international conservation agreements with 183 Parties.[2]

6.2        Despite its accomplishments and the vital role CITES plays in the prevention of the exploitation of flora and fauna, elephant and rhino populations in Africa and Asia have continued to decline. The severity of this issue is demonstrated by the sheer number of elephants and rhinos killed each year: in the six months taken to complete this inquiry approximately 10 000 elephants have been killed across the African continent, and in South Africa alone, approximately 528 rhinos have been killed. On 3 September 2018, it was reported that a 'poaching frenzy' in Botswana resulted in the killing of 87 elephants, many for their tusks. According to Elephants without Borders, the execution of these elephants was the largest killing of its kind on record.[3]

6.3        To address the ongoing population decline of elephants, the international community came together again during the 2016 Conference of the Parties (CoP17) of CITES and agreed to a resolution that:

...recommends that all Parties and non-Parties in whose jurisdiction where there is a legal domestic market for ivory that is contributing to poaching or illegal trade, take all necessary legislative, regulatory and enforcement measures to close their domestic markets for commercial trade in raw and worked ivory as a matter of priority.[4]

6.4        As outlined in chapter 3, since that time the United States (US), the United Kingdom (UK), China, Hong Kong, France and Taiwan have all implemented or announced an end to their respective unregulated domestic ivory markets by announcing domestic trade bans (with minimal exemptions).

6.5        Whilst action has been taken by these countries, Australia has not sought to implement a similar domestic trade ban. The Department of the Environment and Energy (DoEE), the designated CITES Management Authority for Australia, concluded that the CoP17 resolution does not apply to Australia. It argued evidence shows that Australia is not contributing to the poaching or the illegal trade of elephant ivory, and for the most part, the majority of seized ivory items identified by the Australian Border Force (ABF) are typically antiques, trinkets and tourist souvenirs. Further, these seized items were declared upon arrival and non-compliance with CITES was inadvertent and unintentional.

6.6        The DoEE assured the committee that it is supportive of measures taken by countries to strengthen their respective wildlife trafficking laws, and maintains that responsibility to do so rests on countries that are identified as significant source, transit and destination countries.

6.7        The committee agrees with the DoEE's position that Australia's domestic ivory market is not a major contributor to the illegal trade of ivory and rhino. On a global scale, Australia cannot be compared with known source and destination countries such as Kenya, South Africa, China and Viet Nam. However, the lack of regulatory oversight of the domestic trade, and issues with intelligence and data, undermine the DoEE's ability to determine an accurate measure the extent of the illegal trade within Australia.

6.8        The lack of regulatory oversight is not a criticism of the DoEE. Although some stakeholders were concerned by the lack of oversight demonstrated by the DoEE and its state and territory counterparts, the fact remains that the DoEE is not required to monitor the currently unregulated domestic market, nor is there any legal requirement for traders within Australia to ensure an ivory and rhino horn items are pre-CITES if sold domestically. If, however, there is evidence that an item was imported illegally into Australia, then the DoEE is empowered to conduct an investigation. It is, therefore, the responsibility of legislators, both at the Commonwealth and state and territory level to address this issue.

6.9        The committee is persuaded by arguments made by civil society groups and the UK government that failure to implement a domestic trade ban could result in an increased risk of criminal organisations exploiting Australia's weaker control framework, and the continued facilitation of the illegal trade in ivory and rhino horn through the domestic market. As demonstrated in chapter 4, there is ample evidence of displacement occurring in countries where regulatory oversight is lacking. In addition, investigations conducted by civil society groups, especially IFAW, have highlighted ways in which the legal trade acts as a conduit of the illegal trade even within Australia.

6.10      The committee believes a domestic trade ban would ensure Australia's leadership role in tackling illegal wildlife trafficking and add significant weight to the momentum toward shutting down the illegal trade in elephant ivory and rhino horn around the globe. This global momentum aligns with the UNODC's view that the illegal international wildlife trade would decline if each country, under its domestic laws, prohibited the 'possession of wildlife that was illegally harvested in, or illegal traded from, anywhere in the world'.[5]

6.11      The committee emphasises the high level of public support for a domestic trade ban in Australia. A global survey revealed that 77 per cent of Australians surveyed already thought it was illegal to sell ivory in Australia, and 86 per cent expressed the view that the trade in ivory should be banned. Support for a domestic trade ban is bolstered by a societal and cultural shift away from the consumption of products that contain ivory and rhino horn, due to the ethical understanding that this market drives poaching.

6.12      The committee therefore recommends that Australia develops and implements a domestic trade ban on commercial activities involving elephant ivory and rhinoceros horn.

6.13      As discussed elsewhere in this report, and unlike the UK, the Commonwealth must enact a domestic trade ban within the parameters established by the Australian Constitution. That is, the Constitution prevents the Commonwealth government from unilaterally implementing a domestic trade ban without the agreement of the states and territories.

6.14      The Commonwealth could rely on section 51(i) of the Constitution to regulate trade and commerce 'among the States', by prohibiting the trade in ivory and rhino horn between the states and territories. As noted in chapter 3, this would be similar to the domestic trade ban implemented by the US government. However, the US approach has led to a complex domestic trade control framework, where individual states have implemented their own domestic trade bans that do not align with federal laws. For this reason, the committee is wary of any unilateral approach that could result in such jurisdictional issues.

6.15      Consequently, the committee agrees with the Animal Defenders Office (ADO) that a domestic trade ban should be implemented by a national agreement, with the development and adoption of model legislation by the Commonwealth and states and territories, or by the states and territories referring their powers to the Commonwealth.

6.16      The ADO was agnostic about the preferred of these two options. The committee suggests that the best approach is for the Commonwealth, states and territories, through the Council of Australian Governments (COAG), to develop and implement a national domestic trade ban. The National Firearms Agreement provides an excellent example of how Australian governments could proceed with a domestic trade ban on elephant ivory and rhino horn.

Recommendation 1

6.17      The committee recommends that the Commonwealth, states and territories, through the Council of Australian Governments, develop and implement a national domestic trade ban on elephant ivory and rhinoceros horn. The domestic trade ban should be consistent with those implemented in other like-minded international jurisdictions. 

6.18      The committee suggests the Illegal Wildlife Trade Conference hosted in London on 11 to 12 October 2018 provides the Commonwealth government with a unique opportunity to announce to the international community Australia's intention to implement a domestic trade ban for elephant ivory and rhino horn.

Exemptions

6.19      The committee is supportive of the framework introduced by the UK government, which is currently being considered by the UK Parliament. This framework, the strongest of its kind, seeks to put an end to the domestic trade in elephant ivory within the UK by introducing a near complete ban with limited exemptions. As outlined in chapter 3, these exemptions include a de minimis exemption, and exemptions for musical instruments, portrait miniatures, items deemed the rarest and most important items of their type, and transactions between accredited museums.

6.20      Whilst the majority of advocates for a domestic trade ban fully supported the proposed exemptions, others called for more generous exemptions, or the application of a complete ban with no exemptions included.

6.21      The committee considers that a framework similar to that in the UK, including exemptions, is suitable for Australia, applicable to both elephant ivory and rhino horn. Specifically, the committee calls for the following exemptions to be included in the Australian framework applicable to elephant ivory:

• a de minimis exemption for items with content of less than 10 per cent and made prior to 1975;
• musical instruments with content of less than 20 per cent and made prior to 1975;
• portrait miniatures produced 100 years or more prior to the domestic trade ban coming into force;
• for transactions between accredited museums and art institutions; and
• items deemed the 'rarest and most important items of their type'.

6.22      With respect to items deemed the 'rarest and most important items of their type', the committee understands objections to this exemption (that is, the difficulty determining an item's eligibility, and that such an exemption could undermine efforts to devalue ivory) but believes an exemption of this type is necessary to preserve culturally important heritage items. The committee is of the view that the definition of 'rarest and most important' must be narrowly define, and the eligibility of such items must be determined by an authorised advisory institution and should only be applicable for items produced 100 years or more prior to the domestic trade ban coming into force. Where the exemption is applicable, the authorised advisory institution must issue an exemption certificate, which must be registered with the DoEE.  

Recommendation 2

6.23      The committee recommends the inclusion of the following exemptions applicable to elephant ivory as part of the domestic trade ban framework:

• a de minimis exemption for items content of less than 10 per cent and made prior to 1975;
• musical instruments with content of less than 20 per cent and made prior to 1975;
• portrait miniatures produced 100 years or more prior to the domestic trade ban coming into force;
• an exemption for CITES-accredited museums and art institutions; and
• an exemption for items deemed by an authorised advisory institution to be the rarest and most important items their type, and produced 100 years or more prior to the domestic trade ban coming into force.

6.24      The committee is cognisant that the UK framework on which these exemptions are based do not include rhino horn. Indeed, some of these exemptions are not applicable to rhino horn: the committee is not aware of any known musical instrument or portrait miniature that contains rhino horn, and only a small number of items containing rhino horn may be exempt under a de minimis exemption. The committee is also aware that there may be other exemptions applicable to rhino horn. The committee therefore recommends that the government gives careful consideration to the need for exemptions for items made of or containing rhino horn, and includes them if appropriate.

Recommendation 3

6.25      The committee recommends that the Commonwealth government gives careful consideration to the need for exemptions for items made of or containing rhinoceros horn, and includes them in a domestic trade ban if appropriate.

6.26      As part of a domestic trade ban, the committee urges the government to strengthen compliance measures, enforcement, and offences. Based on the UK model, the committee supports:

• an online system for the registration and identification of exempted ivory and rhino horn items for the purpose of their domestic sale;
• the extension of the existing enforcement provisions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to furnish Commonwealth, state and territory law enforcement and environmental compliance agencies with the powers necessary to enforce the domestic trade ban;
• the application of civil and/or criminal penalties where an individual or corporation is in breach of the domestic trade ban for offences such as:
• engaging in commercial activities 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 commercial activities.

6.27      The committee believes that the Commonwealth government should consider the applicability of the UK enforcement provisions to an Australian domestic trade ban, and in so doing should consult with relevant law enforcement agencies. 

Recommendation 4

6.28      The committee recommends that the Commonwealth government considers the applicability of the enforcement provisions under the proposed United Kingdom ivory ban to an Australian domestic trade ban, and in so doing consults with relevant law enforcement agencies.

6.29      The committee acknowledges the concerns of some submitters and witnesses that a domestic trade ban would ban the personal possession of items containing elephant ivory or rhino horn, and/or would require the destruction of these items.

6.30      The committee does not support such an approach. The committee is of the view that those with elephant ivory or rhino horn items in their personal possession should be entitled to continue to possess those items. The committee does not advocate for the destruction of ivory and rhino horn items, nor does it support measures that would prevent an individual the right to own, gift or bequeath an ivory or rhino horn item in their possession. A domestic trade ban as proposed by the committee will merely place restrictions on the commercial trade in items containing elephant ivory and rhino horn. 

6.31      However, across Australia there are those that are currently in possession of ivory and rhino horn items. The committee is mindful of their concerns, and for this reason, the committee recommends a grace period under the domestic trade ban during which those in possession of elephant ivory and rhino horn may sell these items should they choose.

Recommendation 5

6.32      The committee recommends a grace period under the domestic trade ban during which those in possession of items containing elephant ivory and rhinoceros horn may sell them if they choose.

Industry practice

6.33      Irrespective of the implementation of a domestic trade ban, the committee urges the auction and antiques industries, and online marketplaces, to implement measures to proactively address the sale of elephant ivory and rhino horn, such as those adopted by Leonard Joel.

Antiques industry

6.34      IFAW's investigation into the antiques industry revealed a significant proportion of antiques stores stocked items containing ivory. Worryingly, the majority of the antiques stores investigated either unknowingly and knowingly provided advice that was inconsistent with or contrary to current law, and many suggested ways to avoid customs controls. IFAW also identified instances of false or misleading labelling of ivory items, and antiques dealers offering to write receipts that did not accurately reflect the item's ivory content and age. The investigation found only one antiques dealer provided detailed and correct advice about the legal exportation of ivory from Australia.

6.35      The Australian Antique & Arts Dealers Association (AAADA) refuted these allegations. It declared that its members strictly abide by its code of practice, and any member would be expelled if they were found to not comply. The AAADA also claimed that its members are able to discern between modern and antique ivory, and 'works of art were created from the ivory of elephants who died of natural causes' (mortality ivory).[6]

6.36      It is apparent to the committee that there is a lack of understanding about current CITES trade controls in the antiques industry. Evidence to the committee, specifically IFAW's investigation into the Australian antiques shops selling ivory, substantially demonstrated this problem.

6.37      The committee suggests the AAADA's argument that the majority of items sold by its members have been made from mortality ivory is disingenuous. While the AAADA is correct that it cannot be proven or disproven whether an ivory item was from a poached elephant or an elephant that has died of natural causes, raising this issue seems to the committee a poor defence of what is increasingly viewed as an unethical approach to the sale of ivory. There is ample evidence, demonstrated in chapter 2 of this report, that elephant populations are under threat from poaching, driven by demand for their ivory, and claiming the antiques industry simply has no role in addressing this is naïve. 

6.38      The committee encourages the AAADA to better educate and inform its members about the existing international trade control framework (CITES) and their responsibilities under it, and in the event a domestic trade ban is implemented, works to ensure its members understand their new rights and responsibilities under such a framework.

Auction industry

6.39      Unlike the antiques sector, the auction industry has made some headway in addressing its role in the elephant ivory and rhino horn trade. Since IFAW's 2016 investigation into the auction industry, Australia's largest trader in ivory products, Leonard Joel, has implemented a voluntary cessation policy under which it no longer trades in rhino horn (worked or unworked), irrelevant of an item's age, and all unworked elephant ivory. In addition, Leonard Joel only trades in ivory items that meet its de minimis principle (items that contain an ivory content of 200 grams or less, and made prior to 1921).

6.40      Further momentum has been made by the industry's peak body, the Auctioneers and Valuers Association of Australia (AVAA). In May 2017, the AVAA board released its position statement in support of both the UK's proposed legislation for ivory, and a complete ban on the trade in rhino material. Although a voluntary measure, the AVAA encourages its members 'to adopt those principles and ethics in their own practices'.[7]

6.41      The committee applauds both Leonard Joel and the AVAA for their engagement and proactive responses to the ivory and rhino horn trade. Their efforts establish a positive precedence for the industry and in Leonard Joel's case, demonstrate that an ethical position can be taken without a financial impact on a business.

Online marketplaces

6.42        Online marketplaces are at risk of facilitating the illegal trade in ivory and rhino horn. As highlighted by IFAW in its 2013 investigation, between 2008 and 2013 there was a 266 per cent increase in the number of endangered wildlife items listed and traded on Australian websites, the majority being ivory items. 

6.43      Since that time, online marketplaces have implemented policies that establish bans on the trade in CITES-listed species (including ivory and rhino horn). For example, the committee heard both eBay and Facebook have implemented policies that ban the sale of elephant ivory and rhino horn on their websites, even in jurisdictions where the trade is legal. In March 2018, online marketplaces around the world established the Global Coalition to End Wildlife Trafficking Online, which aims to reduce wildlife trafficking online by 80 per cent by 2020.

6.44      However, despite these efforts, the legal trade in ivory has hampered efforts to combat the illegal trade because of the difficulty identifying what is legal and what is illegal ivory. The magnitude of this problem was demonstrated by eBay when it advised that it had blocked or removed 45 000 listings that violated its policy on endangered or threatened species. Facebook, however, was unable to provide the number of listings removed from its platform in violation of its policy prohibiting the sale of all animals, including endangered species and their parts.

6.45      The committee congratulates online marketplaces, such as eBay and Facebook, for their co-operative efforts to address the online trade in endangered species, including ivory and rhino horn items. Their decisions to implement blanket bans on the sale of wildlife on their websites, as well their participation in the Global Coalition to End Wildlife Trafficking Online, are important steps forward in addressing the global wildlife trade.

6.46      Despite these steps, the committee is concerned by the ongoing prevalence of this trade on online marketplaces. Despite eBay's efforts, there were still 45 000 listings placed on its platforms that violated its policy in 2017. Facebook was unable to provide data on the number of listings it had removed from its platforms (Facebook Marketplace and Instagram); however, one off searches by the committee revealed, on several occasions, a number of ivory items listed for sale.

6.47      The committee is of the view that the implementation of a domestic trade ban may assist the efforts of online marketplaces, by simplifying the status of elephant ivory and rhino horn items offered for sale in Australia: that is, it will be in all but a few instances be illegal to do so. Online marketplaces, however, will have to better educate their users about a domestic trade ban, enforce the ban and report violations to authorities.

Radiocarbon dating

6.48      One of the most effective ways to determine the provenance of an ivory and rhino horn item the use of radiocarbon dating. Presently, it is a requirement for a rhino horn to be radiocarbon dated in order to receive a pre-CITES certificate from the DoEE. This requirement is not in place for ivory.

6.49      The Australian National University (ANU) Radiocarbon Dating Laboratory recommended that radiocarbon dating is applied to both ivory and rhino horn. The committee recognises the limitations and reasoning for not having a radiocarbon dating requirement for ivory items, including the cost of the test versus the value of the item, and issues determining an accurate measure for a fragment of a horn or tusk.

6.50      On that basis, the committee is of the view that further consideration should be given to the appropriateness of a compulsory radiocarbon requirement for ivory items. In particular, consideration should be given to the impost of such a requirement in the context of a domestic trade ban, and whether testing facilities have the capacity to meet increased demand for such tests.

Screening for elephant ivory and rhino horn

6.51      Civil society groups expressed concerns about the low percentage of cargo and mail screened for ivory and rhino horn items (and CITES listed specimens more broadly) at Australia's border, and the focus of ABF on other higher profile illicit substances such as drugs.

6.52      The committee is sympathetic to these concerns; however, it is unrealistic and unreasonable to expect that all cargo and mail can be screened as it enters Australia. The committee was made aware of the sheer volume of cargo and mail crossing Australia's border at its site visit to Perth airport. For this reason, it is entirely reasonable and appropriate for the ABF to use an intelligence-led, risk-based approach to screening cargo and mail, which directs their activities towards high-risk consignments.

Data

6.53      The committee recognises that the DoEE and ABF have made improvements to the collection and sharing of data since the ANAO's 2015–16 audit report into the management of compliance with the wildlife trade provisions of the EPBC Act. Specifically, the DoEE in partnership with the Department of Home Affairs has established a new seizure database, and is investigating the potential to share seizure data in real time.

6.54      The absence of quality seizure data undermines the DoEE's ability to adequately determine the extent of the elephant ivory and rhino horn trade in Australia, which subsequently impacts on the ability of the DoEE and ABF to use seizure data for intelligence analysis and risk assessments, and to assess the effectiveness of regulatory measures. Going forward, the committee urges both the DoEE and ABF to ensure accurate and descriptive seizure data is collected as a means of monitoring the movement of illegal ivory and rhino horn across Australia's border and measuring the effectiveness of government intervention.

6.55      Some submitters and witnesses raised concerns about the time it takes the DoEE to provide data to CITES. In response, the committee urges the DoEE to submit CITES trade data to the CITES Secretariat as expeditiously as possible.

Education

6.56      As discussed in chapter 5, education and information currently available to traders and consumers (including travellers) about the CITES requirements applicable to elephant ivory and rhino horn items crossing Australia's border appear to be lacking, and improvements should be made. The success of a domestic trade ban on elephant ivory and rhino horn will also rely in part on the education of sellers and purchasers of ivory and rhino horn items about their rights and responsibilities.

6.57      The committee is concerned about the lack of awareness on the part of the antiques and auction industries in relation to CITES requirements and their obligations under them, including the wildlife statutory declaration and how this fits within the CITES control framework.

6.58      The DoEE must ensure initiatives aimed at strengthening the CITES trade control framework are communicated to and understood by the relevant industries. Failure to do so undermines efforts by both government and industry to implement effective trade controls pursuant to Australia's CITES obligations. The committee recommends that the DoEE reviews its education and information initiatives in consultation with the antiques and auction industries; implements changes necessary to improve knowledge and understanding of CITES requirements in these industries; and informs businesses to ensure they are aware of their obligations and compliant with them.

Recommendation 6

6.59      The committee recommends that the Department of the Environment and Energy:

• reviews its education and information initiatives, in consultation with the antiques and auction industries;
• implements changes identified during the course of the review to improve knowledge and understanding of CITES requirements; and
• regularly informs businesses in the antiques and auction industries to ensure they are aware of their obligations and compliant with them. 

6.60      The committee is of the view that legal, publicly visible trade in ivory and rhino horn, or a partial legalisation of trade in ivory and rhino horn, undermines attempts to change public attitudes and stigmatise ownership of ivory and rhino horn products. The committee therefore recommends that Australia supports international public campaigns designed to make it socially unacceptable to, and create stigma around the purchase and ownership of items containing elephant ivory and rhino horn.

Recommendation 7

6.61      The committee recommends that the Commonwealth government supports international public campaigns designed to make it socially unacceptable to, and create stigma around the purchase and ownership of items containing elephant ivory and rhino horn in an attempt to reduce demand.

6.62      Information currently available from the Department of Home Affairs is out of date: the Importing Antiques information sheet was created some years ago and now contains redundant contact information.

6.63      The committee reminds the Department of Home Affairs that it ought to provide the public with accurate and up-to-date information, and recommends that the 2012 Importing Antiques information sheet currently available on its website be updated, to ensure the accuracy and relevance of this information.

Recommendation 8

6.64      The committee recommends that the Department of Home Affairs updates the Importing Antiques information sheet available on its website, to ensure the accuracy and relevance of this information.

6.65      In addition to updating the Importing Antiques information sheet, the committee is of the view that more information should be provided to travellers about the movement of wildlife items across Australia's border. Current efforts appear ad hoc, and largely reliant on online material.  Information made specifically for passengers departing from or arriving in Australia seems limited, especially in relation to elephant ivory and rhino horn.

6.66      Co-ordinated and targeted information about the trade in wildlife products should be available to travellers departing from and arriving in Australia. The committee recommends that the DoEE and the Department of Home Affairs develop and distribute higher profile educational material that promotes awareness about the wildlife trade, including information about elephant ivory and rhino horn, and the obligations on travellers with these items. Such information should be available at sea- and airports, and with the agreement of the relevant industries, provided to passengers on craft bound for Australia.

Recommendation 9

6.67      The committee recommends that the Department of the Environment and Energy and the Department of Home Affairs develop and distribute higher profile educational material that promotes awareness about the wildlife trade, including information about elephant ivory and rhinoceros horn, and the obligations on travellers with these items.

6.68      Finally, the implementation of a domestic trade ban will require the DoEE to inform and educate traders and consumers about their responsibilities under the new regulatory framework. The committee is of the view that a multi-agency approach to stakeholder education, at the Commonwealth and state and territory levels, is needed. The committee welcomes the willingness of New South Wales Fair Trading and Consumer Affairs Victoria to assist in the event a domestic trade ban is implemented.

6.69      The committee therefore recommends that the DoEE consults with Commonwealth, state and territory environment and consumer affairs agencies to develop and implement an education strategy to inform stakeholders about their obligations under a domestic trade ban.

Recommendation 10

6.70      The committee recommends that the Department of the Environment and Energy consults with Commonwealth, state and territory environment and consumer affairs agencies to develop and implement an education strategy to inform stakeholders about their obligations under a domestic trade ban.

Mr Craig Kelly MP
Chair

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