Committee views and recommendations
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.
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.
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.
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.
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).
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.
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.
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.
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
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.
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'.
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.
The committee therefore recommends that Australia develops and
implements a domestic trade ban on commercial activities involving elephant
ivory and rhinoceros horn.
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.
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
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.
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.
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
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.
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.
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.
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
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;
items deemed the 'rarest and most important items of their type'.
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.
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;
- 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.
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.
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.
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
- 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
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
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.
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
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.
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.
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.
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.
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.
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).
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.
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
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.
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).
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'.
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 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
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
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.
The committee recommends that the Department of the Environment and
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
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.
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.
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.
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
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.
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
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
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.
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.
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.
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
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