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1998
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
WILDLIFE
PROTECTION (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT BILL
1998
EXPLANATORY
MEMORANDUM
(Circulated by
Authority of the
Minister for the Environment and Heritage,
Senator the
Hon Robert Hill)
ISBN: 0642 387400
WILDLIFE PROTECTION
(REGULATION OF EXPORTS AND IMPORTS) AMENDMENT BILL
1998
OUTLINE
One of the greatest threats to the survival of some of the world’s
critically endangered species is the use of products derived from them, for
example traditional medicines. The amendments to the Wildlife Protection
(Regulation of Exports and Imports) Act 1982 (the Wildlife Protection Act)
will assist in saving critically endangered species from extinction by
strengthening controls on the illegal import, export and possession of products
that contain endangered species in their ingredients.
The amendment will
implement Australia’s obligations under the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES), specifically as set
out in resolutions 9.6, 9.13 and 10.19, which were unanimously passed by the 144
Parties to CITES at Conferences of the Parties in 1994 and 1997.
This
bill targets evidentiary problems which arise under the current legislation, to
facilitate successful prosecution for the import or export without a valid
permit of products that contain material from endangered species on the basis of
representations with respect to those products.
For a prosecution to be
successful under the current legislation, it must be proved beyond reasonable
doubt that the product does contain an endangered species. In some products,
such as traditional medicines, endangered species have been mixed with other
ingredients and heated at high temperatures. In such circumstances, it is not
possible with current technology to prove conclusively that any particular
species is contained in the product. The proposed amendments will enable a
prosecution to be successful on the basis that a product is represented
to contain material from an endangered species, and as such will overcome these
forensic problems. The amendments will achieve this result by deeming that
things which are deliberately represented (for example by their packaging) to be
or to contain endangered species, are covered by the Wildlife Protection
Act.
It is not the aim of the amendment to cover products that are
obvious imitations of an endangered species. The amendment is, however,
intended to cover imitations which claim to be authentic. Such products
encourage market demand for endangered species products, which in turn drives
illegal poaching and threatens the survival of these species.
FINANCIAL IMPACT STATEMENT
Implementation costs will be funded from within existing departmental
budgets.
Department of the Environment
Regulation Impact
Statement (RIS)
for the
Wildlife Protection (Regulation of Exports and Imports) Amendment Bill
1998
1. Problem or issue identification
Identify
its nature
Poaching of endangered species for use in traditional
medicine is internationally recognised as one of the greatest threats
contributing to extinction of certain species.
One hundred and forty
four countries, including Australia and countries that have practised in
traditional medicine for thousands of years, such as China and Japan, are
Parties to the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). Under CITES, Parties are required to control
international trade in species that are threatened with extinction, or that may
become threatened with extinction if trade is not regulated. The Wildlife
Protection (Regulation of Exports and Imports) Act 1982, which is
administered by Environment Australia, enables Australia to fulfil its
international obligations under CITES.
Products containing endangered
species listed in the appendices to CITES are subject to seizure under the
Wildlife Protection Act. The Act makes it illegal to trade commercially
in these products, which include many traditional medicines. A successful rate
of prosecution is vital in protecting endangered species from poaching, and in
deterring the use of traditional medicines that contain material from endangered
species. Two species commonly used in traditional medicines, tiger and
rhinoceros, have numbers of less than 5000 and 14000 respectively left in wild
populations. In the case of tigers, this represents a decline rate of 95% since
the turn of the century when the world population was recorded at around
100,000. Out of the five species of rhinoceros, four have numbers of less than
3000 in the wild, with the Javan rhinoceros having numbers of less than
100.
To date there have been no prosecutions for breaches of the
Wildlife Protection Act that involve illegally imported traditional
medicine products containing material from endangered species. The major
impediment has been that current forensic technology is unable to prove beyond
reasonable doubt (the required standard for criminal prosecution) that the
traditional medicines contain material from endangered species as claimed on
their packaging. This is because existing DNA testing technologies can not
identify a particular species within a product, once material from that species
is co-mingled with other elements, and heated at high temperatures.
At
the last two Conferences of the Parties to CITES, member countries have
unanimously passed a number of resolutions aimed at reducing illegal trade in
traditional medicine products containing endangered species, and facilitating
prosecution of offenders. These resolutions recommend that all member States of
CITES ensure that their national legislation effectively controls trade in all
parts and derivatives of endangered species used for healing purposes and trade
in medicinal products containing or purporting to contain these species.
Implementation of the resolutions will specifically address the evidentiary
problems in proving that a product contains an endangered species in its
ingredients
Australia is due to report at the next CITES Conference of
the Parties in early 2000 on the implementation of these resolutions. As such,
there is significant international determination and pressure for member States
of CITES to implement stronger legislative controls.
How has the
market failed?
Normal market dealings do not address the problem of
traditional medicines containing material from endangered species. This is
because the market provides rewards for those who provide these medicines, and
provides nothing to those that refrain from poaching endangered species for
medicinal use. As a species becomes scarcer through use in traditional
medicines, the demand for that species, and the prices paid to poachers on the
provision of that species, rise in reflection of this scarcity. While certain
individuals respond to this scarcity by not buying products that contain
material from endangered species, for others it is an added reason to pursue
these products and obtain their purported benefits before they disappear
completely. Without regulatory intervention to ensure all parties refrain from
trade in and use of traditional medicines that contain or claim to contain
material from endangered species, the market demand will continue with rewards
going to those that provide these products.
How has the legislation
failed?
The current legislation does not take into consideration the
limitations of current DNA testing technologies. A successful prosecution would
require proof beyond reasonable doubt that the product contained a particular
protected species. As this is not possible using current forensic technologies,
the current legislation is ineffective in its application to products, such as
traditional medicine, in which material from endangered species is co-mingled
with other ingredients.
2. Specification of the desired
objective
The key objective is to address the evidentiary problems
that have been identified above, and enable successful prosecution for the
import, export, or (in limited circumstances) possession of products that
contain, or are represented to contain, material from endangered species.
The broader goal is to assist in saving critically endangered species
from extinction resulting from their use in products such as traditional
medicines.
Other nations, including the United States and the European
Union, have already implemented similar legislation to the proposed amendment
and have since recorded a greater prosecution success rate.
The relevant
CITES resolutions recommend that legislation is implemented in conjunction with
education programs. The Commonwealth Government administers an education
program that includes the holding of Traditional Medicine Symposiums. These
Symposiums, which involve traditional medicine traders, practitioners and
students as well as conservation groups, educate individuals on the threat posed
to endangered species, and encourage the development and use of alternative
ingredients.
3. Identification of options (regulatory and
non-regulatory)
Regulatory.
a) No specific
action:
Legislation will remain the same, and the Commonwealth will continue
its current education campaign. This option is not viable as the evidentiary
problems identified will not be addressed. As a result, the current legislation
will remain ineffective and there will continue to be no prosecutions for the
import of products that contravene the legislation. Australia will also have
failed to meet its international obligations under CITES.
b)
Legislative amendment as proposed:
The proposed amendment to the
Wildlife Protection Act will enable the Government to prosecute
successfully importers of traditional medicines that contain material from
endangered species, in line with CITES resolutions. The forensic problems will
be overcome by prohibiting import or export without a permit for products which
are represented to contain or be derived from endangered species. The proposed
amendment will also make it possible to successfully prosecute individuals who,
without reasonable excuse possess a product that they know or have reasonable
grounds for suspecting was imported illegally.
c) Legislative amendment
as proposed but with a regulatory scheme for licensing or exempting certain
products:
This would necessitate a large administrative process on the part
of the Government, and would require businesses to go through lengthy paperwork
requirements.
Non-regulatory.
d) Providing information
and education:
In conjunction with the traditional medicine community and
wildlife conservation groups, develop information and education programs for
individuals and groups involved in the trade of traditional medicines, as well
as students, community groups, and other interested parties, to reduce consumer
demand for traditional medicine products that are represented to contain
material from endangered species. This option in itself will not address the
evidentiary problems raised, but is an essential part of the Government’s
existing wildlife protection strategy.
e) Protection of endangered
species in the wild:
Develop campaigns and programs to protect existing wild
populations of endangered species used in traditional medicines. Again, this
option would not address the evidentiary problems in prosecuting for the import
of products that contain, or are represented to contain, material from
endangered species.
The above options are not mutually exclusive, indeed
the Government is committed to combining appropriate non-regulatory options with
the proposed regulatory scheme. In this way, the broader objective of saving
endangered species from extinction is more likely to be
achieved.
4. Assessment of impacts (costs and benefits) of each
option
Depending on which option(s) are employed, there will be an
impact on several stakeholders. The stakeholders likely to be directly affected
are:
_ conservation groups and individuals concerned with the survival of
endangered species that are utilised in traditional medicines;
_ industry
groups that currently produce products that contain, or are represented to
contain, material from endangered species (all these groups are currently based
overseas);
_ individuals or groups who import or export products that
contain, or are represented to contain, material from endangered species;
_ retailers who sell these products;.
_ consumers who value products that
contain, or are represented to contain, material from endangered
species;
_ individuals or interest groups that concern themselves with
Australia’s international reputation;
_ officers responsible for the
enforcement of any legislative changes; and
_ taxpayers (for certain
options).
Regulatory.
option a) No specific
action:
Costs - enforcement agencies will be required to work
under impotent legislation that fails to adequately address the illegal trade in
traditional medicines that contain material from endangered species. This is
because the current legislation does not allow for the inability of current DNA
technologies to conclusively prove the presence of an endangered species in a
traditional medicine once it is co-mingled with other elements. Traders in
these medicines will continue importing due to an awareness that existing
legislation is unable to support prosecution. Enforcement costs will rise as
the demand for these medicines will continue to rise as a result of their
availability.
If the legislative amendment does not proceed, it may be
perceived that Australia is not committed to stopping the illegal international
trade in endangered species. Australia would likely be subject to international
criticism for failing to address the problem, and therefore failing to fulfil
its obligations under CITES.
Inadequate legislation will arguably
contribute to a continual decrease in numbers of endangered species. In some
cases, such as the tiger and rhinoceros, this will almost certainly lead to
extinction. This will contribute to rising costs in combating poaching of
endangered species, and other problems associated with criminal activity.
Countries that are home to critically endangered species could experience an
adverse impact upon tourism and other cultural programs if these species become
extinct.
Benefits - there are no foreseeable benefits in
maintaining a stance of no action.
option b) Legislative
amendment as proposed:
Costs - the cost of developing and
implementing the legislative amendment and the cost of ensuing enforcement
action will be funded from within existing departmental
budgets.
Individuals who inadvertently import traditional medicines
containing material from endangered species into Australia are unlikely to be
prosecuted, however the prohibited import will be seized by the Australian
Customs Service (ACS). Seized items are destroyed unless the importer can prove
that the item was not covered by the Act.
Strengthening legislation may
lead to the establishment of an underground illegal trade
industry.
Benefits - the proposed amendment will enable the
Government successfully to prosecute importers of products that are represented
to contain material from endangered species, and is the only option that
specifically addresses the identified evidentiary problems. It will also enable
Australia to fulfil its international obligations under CITES.
Successful
prosecutions as a result of the proposed amendment will act as an effective
deterrent to the trade in traditional medicines that contain material from
endangered species. A resultant shortage of the endangered species materials
for sale will also encourage the use of alternative ingredients. This will in
turn lead to a decrease in the cost of enforcement.
Note: Existing
Commonwealth legislation, the Therapeutic Goods Act 1989, administered by
the Therapeutic Goods Authority (TGA), defines ‘therapeutic goods’
as goods which are represented to be for therapeutic use (see full
definition at Attachment A). Prosecutions can therefore proceed on the basis of
such representations without the prosecution having to prove that the
representation is true. Since 1993, the TGA has laid 577 charges based on this
definition with a 100% conviction rate. This is worth noting as a successful
precedent for the use of a provision of the same type as the proposed amendment.
option c) Legislative amendment as proposed but with a regulatory
scheme for licensing or exempting certain products:
Costs -
There would be significant costs to the Commonwealth in administrative and
enforcement requirements if businesses are required to obtain licences for all
traditional medicine products that identify with an endangered species.
Businesses would also face compliance costs and delays.
Benefits
- Through tight regulation of the industry, it would prove difficult for
importers to continue trading in traditional medicines not covered under
Regulations. Demand in these products would arguably decrease as they become
harder to obtain, and legal alternatives become
available.
Non-regulatory.
option d) Providing
information and education:
Costs -The Government is currently
promoting use of alternatives to material from endangered species in traditional
medicines through Traditional Medicine Symposia in various cities. These
Symposia are held jointly with TRAFFIC Oceania (a programme of the World Wide
Fund for Nature and IUCN-The World Conservation Union), and educational
institutions such as the University of Western Sydney Macarthur, and the Royal
Melbourne Institute of Technology. The Government’s contribution to the
symposium held in Sydney last year was $10,000, and the symposium to be held in
Melbourne in March 1999 will be allocated approximately $15,000.
In
addition, the Government provides information on the legislation, including, for
example, which products are not permitted to be imported without a permit.
Therefore, costs associated with this option will be in relation to the
continuance of programs that are already in place.
Benefits -
the promotion of an ability to successfully prosecute importers of traditional
medicines represented to contain material from endangered species will be an
effective deterrent to illegal trade.
Education campaigns will encourage
the development and use of alternatives to medicines that contain material from
endangered species. Increased public awareness of the critical situation of
many endangered species, and of availability of approved substitutes, will lead
to a decrease in consumer demand. A market decline for products represented to
contain material from endangered species should contribute to a decrease in the
poaching of these animals. The Government is committed to conducting these
programs in close consultation with the traditional medicine community and
wildlife conservation groups.
option e) Protection of endangered
species in the wild:
Costs - This would be a costly option as
Australia is not a native home to any of the endangered species that are
utilised in traditional medicines, and as a result any efforts to protect
endangered species in the wild by the Commonwealth would need to be directed
overseas. As protection of species in the wild is ultimately dependant on
enforcement of wildlife protection legislation in the relevant countries,
Australia’s involvement would be limited to the provision of funding or
technical expertise.
This option would not address the difficulties in
prosecuting importers of traditional medicines that contain material from
endangered species. The evidentiary issues would still exist, and there would
be no deterrent to trade in these products.
Benefits -
Effective protection of endangered species in the wild from poachers would lead
to an increase in numbers of wild populations and would decrease the
availability of these species for use in traditional
medicines.
5. Consultation
The proposed amendments will
implement CITES resolutions were unanimously agreed by all other CITES Parties
including Australia. Australia’s support for the resolutions was agreed
in consultation with relevant government departments.
The World Wide Fund
for Nature, TRAFFIC Oceania, and other conservation groups have urged the
Government to amend the Wildlife Protection Act to make prosecution
easier, and to conduct education campaigns aimed at traditional medicine
consumers.
The proposed amendment was raised at the Traditional Medicine
Symposium held in Sydney in 1997, which was attended by traditional medicine
practitioners, retailers, and traders and students, conservation groups and
other interested parties.
Representatives from these groups have been
invited to attend the next Symposium to be held in Melbourne during March 1999,
at which further information will be provided.
The Government’s
public announcement of the amendment on 22 August 1998 was attended by key
representatives of the traditional medicine community, who gave strong support
to the amendment.
Industry groups that manufacture traditional medicines
are all located in nations other than Australia, and as such it was not possible
to consult with them.
As it is already illegal to import traditional
medicines that contain material from endangered species, the proposed amendment
will not impact on industry groups that are already clearly in compliance with
Australia’s import restrictions under the Wildlife Protection Act. The
proposed amendment will impact on those industry groups that are not in
compliance will the import restrictions under the Act in relation to traditional
medicines, as it will be possible to successfully prosecute them.
The
amendment will also enable successful prosecution for export products that
contain material from endangered species. However, there is no indication that
any such products are currently exported from Australia.
6. Conclusion
and recommended option
Taking into consideration the benefits and
costs of the options discussed above, the preferred option is (b), amendment
of existing legislation to enable effective controls and enforcement
capabilities. The proposed legislative amendment will facilitate prosecutions
under the Wildlife Protection Act for breach of the provisions governing
trade in products containing endangered species. The proposed amendment will
best address the evidentiary problems that currently exist for successful
prosecution, and will fulfil the intention of the Act in effectively
contributing to the protection of endangered species from extinction.
In
addition, the Government will continue to implement option (d), working closely
with the traditional medicine community and related consumer groups to develop
public awareness programs aimed at reducing consumer demand for traditional
medicines purporting to contain materials from endangered species. This option
is an integral component of the Government’s efforts to halt the trade in
traditional medicines which contain materials from species that are threatened
with extinction.
If options (b) and (d) are adopted in concert, they will
play an essential role in minimising the use of endangered species in
traditional medicine, and each option will have no impact on small business
compliance costs.
The proposed amendment to the Wildlife Protection
Act is required to implement CITES resolutions. There is currently a high
level of international concern and multilateral support to halt the illegal
trade in endangered species, and the 144 nations that are Parties to CITES have
agreed to report on implementation of the resolutions during the 11th CITES COP,
to be held in early 2000.
7. Implementation and Review
The
proposed amendment will not require any changes to the current administration
and enforcement of the Wildlife Protection Act. Environment Australia
will continue to administer the Act and to coordinate enforcement
responsibilities with other agencies, including the Australian Customs
Service.
The Government has committed to undertake a broad review of the
Wildlife Protection Act, taking into account recommendations of the
recent Senate Inquiry into commercial use of native wildlife. This review will
take place after the amendment has been introduced. The Government will provide
ongoing support to review of the Act and to operation of the
amendment.
Attachment A
Therapeutic Goods Act definition
The Therapeutic
Goods Act 1989 regulates the quality, safety and efficacy of medical
treatments available in Australia. The Act contains controls in relation to the
import, export, manufacture and supply of medicines, and is administered by the
Therapeutic Goods
Administration.
Definitions:
“3.(1) “therapeutic
goods” means goods:
(a) that are represented in any way to be,
or that are, whether because of the way in which the goods are presented or for
any other reason, likely to be taken to be:
(i) for therapeutic
use; or
(ii) for use as in ingredient or component in manufacture of
therapeutic goods; or
(iii) for use as a container or part of a
container for goods of the kind referred to in subparagraph (i) or
(ii);”
NOTES ON CLAUSES
1. Clause 1 - Short Title
This Clause provides for this Act
to be cited as the Wildlife Protection (Regulation of Exports and Imports)
Amendment Act 1998.
2. Clause 2 -
Commencement
This clause provides that the Act shall commence
28 days after the day of Royal Assent.
3. Clause 3 -
Schedules
Schedule 1 - Amendment of the Wildlife
Protection (Regulation of Exports and Imports) Act 1982
4. Item 1
- Subsection 4(1)
This Item inserts two new definitions :
‘Convention listed animal’ and ‘Convention listed
plant’. ‘Convention’ refers to the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES), as
defined in existing section 4(1). All wildlife species protected under CITES
are listed in a number of Appendices to the Convention, and included in
Schedules to the Wildlife Protection Act. These are referred to as ‘CITES
listed’ species. The existing offence provisions of the Wildlife
Protection Act do not only cover CITES listed species; under the existing
definition of ‘specimen’ they also cover native Australian animals
and plants, many of which are not CITES listed. These new definitions take into
account the more limited definition of CITES listed species required in relation
to the amendment.
5. Item 2 - After subsection 4(2A)
Proposed
subsection 4(2B) extends the Act’s current controls on the import and
export without a permit of protected wildlife species (as defined by the
existing definition of ‘specimen’), or a product containing a
protected wildlife species, to also apply to things which are represented to be,
or to be derived from, a CITES listed protected wildlife species.
6. This provision extends the scope of the existing offences under
sections 21, 22 and 53. These offences currently relate to the import, export
and possession of a specimen. By deeming a thing which is represented to
be a specimen of a CITES listed species to be a specimen from a CITES
listed species, proposed 4(2B) extends the coverage of the Act’s existing
offence provisions to cover such things.
7. The mere fact that a thing
appears to look like a ‘Convention listed’ specimen or to be part of
a ‘Convention listed’ specimen does not mean that this provision
will apply. The provision requires that the thing is represented to be
the Convention listed specimen or part of the Convention listed specimen. Thus
a thing that is clearly an imitation would not be covered if there is no
representation that the thing is the actual Convention listed specimen or part
of the Convention listed specimen concerned.
8. It is not the intent of
the provision to limit the general use of images of wildlife as a marketing
tool. Use of such images will not be affected, provided that they do not
represent that an endangered species is actually a constituent element of the
product.
9. Item 3 - After subsection 4(2B)
Proposed
subsection 4(2C) provides that if a thing is represented as being (in one of the
ways described under proposed subsection 4(2B)), a specimen for which the
importer holds a permit, this representation is not evidence that the thing is
in fact in accordance with a permit. This prevents Subsection 4 (2B) from
deeming an importer or exporter to be in compliance with a permit where they
have mis-labelled a product which contains a species not covered by the permit,
and the label claims it contains the species covered by the
permit.
10. Item 4 - At the end of section 21 (after the
penalty)
This Note is inserted to make it clear that the effect of
Subsection 4 (2B) is to extend the scope of the export offence under section 21.
11. Item 5 - At the end of section 22 (after the penalty)
This
Note is inserted to make it clear that the effect of Subsection 4 (2B) is to
extend the scope of the import offence under section 22.
12. Item 6-
At the end of section 53(1)
Inserted at the end of Subsection 53(1).
This Note is inserted to make it clear that the effect of Subsection 4 (2B) is
to extend the scope of the possession offence under section 53.