And Jombi and Minister for the Environment and Heritage

[2004] AATA 1380

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1380

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/747

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSE-CLARENCE AND JOMBI

Applicant

And MINISTER FOR THE ENVIRONMENT AND HERITAGE

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date20 December 2004

PlaceSydney

Decision The decision under review is affirmed.  This means Mr And Jombi's application for review is unsuccessful.

.................[Sgd]..........................

E K Christie
  Member

CATCHWORDS

ENVIRONMENTAL PROTECTION AND BIODIVERSITY CONSERVATION - Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) - fauna [Python reticulatus (pythons)] - source of fauna - purpose for which fauna – international conventions and domestic law - to be re-exported/imported - classification of listed species and threat of extinction - regulation of trade - civil standard of proof and reasonable satisfaction of the Tribunal: bred in captivity.

WORDS AND PHRASES:  "or"

Environment Protection and Biodiversity Conservation Act 1999 ss 303CG, 303CH, 303FU, 527A, 527B
Environment Protection and Biodiversity Conservation Regulations 2000 reg. 9A.24
Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973, Article II, Article XIV
Commission Regulation [European Community] No. 1808/2001 (30 April 2001)

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Jebb v Repatriation Commission (1988) 80 ALR 329
Commonwealth v Tasmania (1983) 158 CLR 1
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Metropolitan Gas Company v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449
Re The Licensing Ordinance (1968) 13 FLR 143

WRITTEN REASONS FOR ORAL DECISION

22 December 2004 Dr E K Christie, Member    

1.      This is an application by Mr And Jombi to review a decision of the respondent made on 4 August 2004 that his application of 8 March 2004 for a permit under the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”) to import snake skin shoes from Spain had been refused under section 303CG of the EPBC Act as the import, for commercial purposes, the specimens of Python reticulatus were sourced from python species from the wild.

2.      At the hearing Mr And Jombi represented himself.  Mr A Seglenieks, Senior Legal Officer, Department of the Environment and Heritage, represented the respondent.  Neither party called any witnesses to give oral evidence.

3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents: Exhibit 1) and the following exhibit:

§Exhibit 2         Affidvait of Demetrio Padilla.  Spanish to English translation of the Original Permit/Certification issued by the Ministry of Economy, Foreign Trade General Secretariat, Spain, an authorised CITES Agency.

4.      At the commencement of the hearing, Mr And Jombi acknowledged that he did not dispute the translation from Spanish to English of the Original Permit/Certification (Exhibit 2) that had been undertaken by Mr Padilla.

Facts

5.       The general facts were not in dispute and may be stated briefly.  An application for a permit to import 70 pairs of shoes was lodged with the respondent by Mr And Jombi on 8 March 2004.  Mr And Jombi identified himself with “Maseratti Shoes” and “Jose-Clarence Shoes”.  It is not in dispute that Mr And Jombi is importing the shoes for commercial purposes.

6.      The shoes had been manufactured in Spain from the skins of pythons which had originated from Malaysia.  Pythons are a listed species in the “Convention on International Trade in Endangered Species of Wild Fauna and Flora” (CITES).

7.      Australia and Spain are parties to CITES.

8. The Department of the Environment and Heritage (“the respondent”) assesses and may issue wildlife trade permits under the EPBC Act for export of native wildlife and products, live imports of species, and species and their products listed in CITES.

The Tribunal’s Decision-Making Powers

9.      The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal:  See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68].” In the case of Mr And Jombi, there is only one possible decision – whether he is entitled to the grant of a permit under the EPBC Act to import shoes manufactured in Spain from the skins of pythons that had originated in Malaysia.

10.     Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). The legislation requires the Tribunal’s decision to be based upon the evidence and information before the Tribunal up to the date of the hearing.

11.     In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at 325, Davies J described decision-making in the Tribunal as generally a "continuum" in which "the tribunal considers the applicant's entitlement [for an import permit] from the date of application, or other proper commencing date, to the date of the tribunal's decision." The Tribunal has adopted this approach in its consideration of the issues.

Regulatory Requirements For The Grant Of An Import Permit

12.     Central to the regulatory control of this application for review is the international agreement entered into between 166 countries (including Australia and Spain) to regulate plant and animal species whose survival may be threatened because of international trade.  CITES came into effect in 1973.

13.     In the Minister of State for Immigration and Ethnic Affairs v Teah (1995) 183 CLR 273, the High Court affirmed the traditional and well established rule that treaties are not incorporated into Australian law in the absence of legislation. Mason CJ and Deane J said:

“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.

This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive.

So a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

14.     However, the provisions of CITES, including the list of CITES species included in Appendices I, II and III,[1] have now been validly incorporated in the EPBC Act.

[1] Declaration by the Minister for Environment 29 November 2001 that became effective from 11 January 2002

15.     It is also important to recognise that an Australian court will not apply an international convention merely because the international convention exists.  The international convention must have been given express legislative implementation by the Parliament of the Commonwealth of Australia.  Moreover, the viewpoint of the High Court of Australia in Commonwealth v Tasmania (1983) 158 CLR 1, (“The Franklin Dams Case”) is also significant in this regard. That is, under the External Affairs power [section 51(xxxix) of the Constitution, the Parliament of the Commonwealth of Australia has the power to legislate to implement an international convention or treaty only in circumstances where it deals with a matter of inherent “international concern”.  One such matter of inherent “international concern” is the global need for the need to prevent or restrict exploitation of plant and animal species, in terms of threats for their extinction, through the regulation of trade.

16.     This aspect was recognised in the Second Reading Speech of the “Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001”:

“The Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001 enhances protection for both Australia’s native species and for species in other countries that are threatened by trade….

On a global scale, the illegal trade in wildlife is horrific.  In dollar terms, it is likely to be second only to the illicit drug trade….

Australia, along with more than 150 other nations, is a party to the Convention on International Trade in Endangered Species, CITES.  This convention provides an international framework for addressing the threats to wildlife from international trade….

Accordingly, the bill provides for….the scheme for regulating wildlife trade to be upgraded, simplified and incorporated in the EPBC Act.

The new wildlife trade provisions of the EPBC Act fully implement CITES and will ensure Australia continues to have the toughest wildlife trade laws in the world.”

17.     In terms of the statement in the Second Reading Speech that Australia has the “toughest wildlife trade laws in the world”, Article IV of CITES enables signatory countries to the Convention to adopt stricter domestic measures with respect to the conditions of trade, including domestic measures for restructuring or prohibiting trade. Section 303CH in the EPBC Act is one such example of Australia’s approach.

18.     In regard to Mr And Jombi’s application for review, the key statutory provision that must be satisfied is contained in Part 13A – International Movement of Wildlife Specimens of the EPBC Act: specifically, section 303CH which prescribes “conditions relating to the export or import of CITES specimens for commercial purposes”:

Specific conditions
Item	Category of specimen	Action	Specific conditions
3	CITES II	Import	(a)  the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and (b)  any of the following subparagraphs applies: (i) the proposed import of the specimen would be an import from an approved commercial import program in accordance with section 303FU’ (ii)  the specimen is, or is derived from, an animal that was bred in captivity (section 527B);…

19.     There is no dispute between the parties that the skin of pythons comes within the meaning of “specimen” as defined in section 527A of the EPBC Act i.e. “an animal” or “the skin or any other part of an animal” [see section 527A(a),(c)].

20. Section 303FU of the EPBC Act provides for the import of a specimen (e.g. shoes manufactured from the skin of pythons) if “the import is from an approved commercial import program in accordance with this section if the specimen is sourced from a program that, under the regulations, is taken to be an ‘approved commercial import program’.”  [Emphasis added].

21. The EPBC Act (section 527B) provides a meaning for “breeding in captivity”:

“527B  Breeding in captivity

For the purposes of this Act, a live animal of a particular kind is taken to have been bred in captivity if, and only if, it was bred in circumstances declared by the regulations to be circumstances the breeding in which of:

(a)       any live animal; or

(b)       any live animal of that kind; or

(c)any live animal included in a class of live animals that includes live animals of that kind;

would constitute breeding in captivity.”  [Emphasis added]

where regulation 9A.24 of the EPBC Regulations 2000 sets out the circumstances breeding of an animal constitutes “breeding in captivity”:

“Breeding in captivity

(1)For section 527B of the Act, a live animal is taken to have been bred in captivity if:

(a)for an animal that is reproduced sexually – its parents transferred gametes, by mating or otherwise, in a controlled environment; and

….

(c)the breeding stock from which the animal is bred:

(i)is established in a way that is not detrimental to the survival of the species in the wild; and

(ii)is maintained without the introduction of specimens (including eggs or gametes) from the wild, other than to ensure ongoing genetic viability or to dispose of animals that have been confiscated, seized, rescued or removed from the wild for public health or safety; and

(iii)has produced offspring of at least the second generation, or is managed in a way that has been demonstrated to be capable of reliably producing second-generation offspring in a controlled environment.

(2)       For this regulation, a controlled environment is an environment that:

(a)       is managed to produce animals of a particular species; and

(b)has boundaries that are designed to prevent animals, eggs or gametes of the species from entering or leaving; and

(c)provides for artificial life support that may include, for example, artificial housing, temperature control, waste removal, health care, protection from predators and artificially supplied food.”

Legal Principles Relative to Statutory Construction and Evidentiary Proof

22.     In consider Mr And Jombi’s application for review, the Tribunal has found the principles that emerged from the following cases, to be relevant considerations for the decision to be made.

23.     It is trite law that the primary rule of statutory interpretation is that words must, prima facie, be given their ordinary meaning and the court should see what is the intention expressed by the words used.  Moreover, if when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give effect to the unqualified words”:  see Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 648; Metropolitan Gas Company v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455.

24.     As Pearce and Geddes [Statutory Interpretation in Australia 5^th Edition (2001)] point out, in ordinary usage the word “and” is used “conjunctively” i.e. in a case where there is a list of items, the items being joined by “and”, the list is truly cumulative as the word “and” links the members of the class together and its function is to indicate that the whole of the class is to be considered together:  see Re The Licensing Ordinance (1968) 13 FLR 143. In contrast, the word “or” is used “disjunctively” i.e. expressing alternatives.

25.     The standard of proof in civil matters, such as deciding the outcome of this application for review by Mr And Jombi is the “balance of probabilities”.  In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, a decision of the High Court of Australia, Dixon J (as he then was), commenting on the probative value of evidence as to causation in civil cases, stated:

“‘It is said to be that state of mind in which there is felt to be a preponderance of evidence’ in favour of the demandant’s proposition…’ when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found…..

‘….Reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved …. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”  [Emphasis added]

The Issues to be Decided

26.     During the hearing, the parties agreed that the issues for the Tribunal to decide were:

(a)the meaning of, and applications of, Codes contained in Box 12, Box 13 and Box 14 of the Permit issued by the CITES Authority, Spain (T6); and

8. Description of specimens (including marks, sex/date of birth of live animals) LPS (Leather Product Small) - Small Leather Goods Mens Shoes	9. Net mass (kg)     23		10. Quantity      25 pairs
	11. CITES Appendix       II  12. EC Annex B		13.  Source       W 14.  Purpose       T
	15. Country of Origin       MY – Malaysia
	16. Permit No.     WL (J) 0059/2000	17.  Date of issue       19/10/2000
	18.  Country of last re-export       SG – Singapur
	19. Certificate No. CR2002CHB000816	20.  Date of issue       30/07/2002
21.  Scientific name of species	Python reticulatus
22.  Common name of species	Reticulated Python (Piton Reticulada)

(b)whether the pythons from which the shoe products in Spain were derived were “bred in captivity” or “taken in the wild”; and

(c)whether the pythons from which the shoe products in Spain were derived were an import from an “approved commercial import program”.

Contentions and Submissions of the Parties

27.     Mr And Jombi submitted that the Code “W” in Box 13 of the Original Permit explained the origin of the pythons.  It was his contention that the descriptor “wild” simply referred to the fact that the python was a wild species.

28.     It was Mr And Jombi’s further contention that the Code “B” in Box 12 referred to the fact that the python snake was originally found in the wild and then brought into a farming operation where it reproduced;  in turn, skins were produced to be manufactured into a product (such as shoes) derived from the snake skin.

29.     To support this contention Mr And Jombi referred to Box 15 “Country of Origin” and the following translation provided by Mr Padilla (Exhibit 2):

“15/17.  The country of origin is the country where the specimens were taken from the wild, born and bred in captivity, or artificially propagated.”

30.     Mr And Jombi submitted that this translation made it clear that the python species, the “specimen” (or subject) of the permit, had its origin in Malaysia, where the species was taken from the wild and then born and bred in captivity.  Mr And Jombi concluded with the submission that the explanatory statement accompanying Box 15, supported his position that the python snake was originally found in the wild but was then bred in captivity.  Therefore, a permit for import of manufactured snake skin shoes should be granted to him.

31. Mr Seglenieks, for the respondent, submitted that only part of section 303CH of the EBPC Act was satisfied. Specifically, paragraph (a):

“the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country.”

32.     However, Mr Seglenieks submitted that neither of the remaining conditions, essential for the grant of a permit, had been satisfied – because of the following reasons:

(a)There was no approved commercial import program under section 303FU of the EPBC Act in respect of pythons or products derived from pythons; nor had Mr And Jombi contended that such an import program existed; and

(b)That the python species, the “specimen” (or subject) of the permit had not been derived from python species bred in captivity. Mr Seglenieks contended that the certificate issued by the Spanish authority unequivocally stated that the specimens the subject of the permit application were sourced from the wild (as opposed to from captive bred animals). It was his further contention that had they been sourced from animals bred in captivity, a different Code would have been used. Accordingly, condition (b)(ii) in the table to section 303CH had not been satisfied, and the decision to refuse to grant the permit was accordingly correct.

Consideration of the Issues

33. The Tribunal has applied the legal requirements prescribed in the EPBC Act and CITES as well as the common law principles (as stated in paragraphs 9 – 25) to all the evidence and information before the Tribunal in order to determine the issues to be decided.

34.     The first issue for the Tribunal is to consider the original permit and the meaning of the Codes contained in Box 12, Box 13 and Box 14 – as well as the phrase referred to in Box 15:

“the country of origin is the country where the specimens were taken from the wild, born and bred in captivity, or artificially propagated.”  [Emphasis added]

35.     The Tribunal finds that, on examination of the Commission Regulation (EC) No. 1808/2001, the Code “EC Annex B” in Box 12 is reasonably equivalent to CITES Appendix II.  That is, the role of the Codes for “EC Annexes A, B and C” is similar to “CITES Appendices I, II and III” (T7, Folio 24).  The “EC Code” classifies endangered species of flora and fauna in terms of their threat of extinction and the need to prevent or restrict exploitation through the regulation of trade.  The classification of endangered species under EC Annex B is also reasonably equivalent to the classification under CITES Appendix II.

36.     The Tribunal further finds that the “EC Annex Code B” in Box 12, has no application, whatsoever, in terms of whether the species is taken in the wild or bred in captivity.

37.     The Tribunal next considers the Code contained in Box 13 of the original permit.  The Tribunal finds that the role of Box 13 is to identify the “source” of the specimens, in this case python snake skin, that is proposed to be imported.  Nine specific Codes are listed.  The Code contained in Box 13 is “W”, which has the meaning “Specimens taken from the wild”.

38.     If the python species – an “EC Annex B” species in Box 12 was bred in captivity, then Box 13 would have contained the Code “C”.  That is, according to the explanation of this Code:  “Annex B animal bred in captivity in accordance with Chapter III of Commission Regulation (EC) No. 1808/2001”.  However, this was not the case and the authorised Spanish CITES Agency has used the Code “W” in Box 13.  

39.     The Tribunal next considers the Code contained in Box 14 of the original permit.  The Tribunal finds that the role of Box 14 is to identify the “Purpose” of the specimens, in this case python snake skin, that is proposed to be imported.  Therefore specific codes are listed.  The Code contained in Box 14 is “T”, which has the meaning “Commercial”.  One of the alternative purposes listed is Code “B”:  “Breeding in captivity or artificial propagation”.

40.     However, the authorised Spanish CITES Agency chose to use the Code “T” – not Code “B”, in Box 14.

41.     Next, the Tribunal considers CITES Resolution Conference 12.3 (The 12^th Meeting of the Parties to CITES)[T9].  This Resolution established Codes for “Standardisation of CITES Permits and Certificates” by all signatory nations.  The recommended Codes under this resolution for the “Purpose” (Box 14) and “Source” (Box 13) of the Specimen are similar to the Codes accompanying the original permit issued, and applied, by the authorised CITES Spanish Agency (T6).

42.     In terms of the meaning of the phrase referred to in Box 15, “specimens taken from the wild, born and bred in captivity or artificially propagated”, the Tribunal has applied standard principles of statutory interpretation for the use of the conjunction “or”.  Applying the principles in paragraph 24, the Tribunal concludes that the terms “specimens taken from the wild”, “born and bred in captivity”, “or artificially propagated” do not refer to a class to be considered together linked by the word “or”.  The Tribunal concludes that in ordinary usage, the word “or” is used disjunctively and expresses three separate alternatives in the phrase referred to in Box 15:

§specimens taken from the wild

§born and bred in captivity

§artificially propagated.

43.     Accordingly, the Tribunal has adopted the ordinary usage of “or” and finds that there is no basis under statutory interpretation to link “specimens taken from the wild” and “bred and born in captivity” by substituting “or” with “and” i.e. to consider them both being linked by “and”.

44.     Applying the above findings to the original permit (T6), the Tribunal concludes that:

(a)      the source of python snake skin is from the “wild” (Box 13);

(b)the purpose for which the python snake skins are to be imported is “commercial” (Box 14); and

(c)the python species, the subject of this permit, is not necessarily extinct now, but may become so unless trade is subject to regulation (Box 12 “EC Annex B”/CITES Appendix II).

45. In relation to the conditions imposed under Item 3 of section 303CH of the EPBC Act (“Conditions Relating to the Import of CITES Specimens for Commercial Purposes), the Tribunal concludes:

(a)Based on all the evidence and information before the Tribunal (Jebb’s case) and applying the Briginshaw test, the Tribunal is not reasonably satisfied, on the balance of probabilities, that the python species, the subject of this application for review, has been bred in captivity.  The Tribunal’s findings on the interpretation of the original permit (T6) support this conclusion.  Furthermore, in the absence of any objective, factual evidence in this regard, the information before the Tribunal, at best, can only be described as “inexact proof” or “indirect inferences”.

(b)The most recent listing [28 October 2004] of “Approved Commercial Import Programs” for CITES Appendix II species that are currently recognised under the EPBC Act, subject to a Ministerial declaration and published in the Commonwealth Gazette, does not specify any such programs for Python spp. generally, or P.reticulatus, specifically.

46.     Given the above conclusion, the Tribunal finds that the python species, the subject of the original permit, have not been bred in captivity – nor is there any “Approved Commercial Import Program” for Python spp, a listed CITES Appendix II species.

47. For all of the above reasons the Tribunal affirms the decision under review. The prescribed requirements of section 303CH of the EPBC Act have not been satisfied.

48.     Whilst this decision may seem harsh, it would probably be more appropriate to refer to the outcome as unfortunate.  The regulatory control regime under CITES and the EPBC Act gives the Tribunal no alternative other than to make the decision that it has made. However, the Tribunal makes the observation that, at some later date, should Mr And Jombi be able to establish objective, factual evidence that supports the proposition that the specimen, the subject of his permit application (Python spp.) has been bred in captivity, then he could be in a position to make a new application for an import permit in the future.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  20 December 2004
Date of Decision  20 December 2004
Date of Written Reasons          22 December 2004
The Applicant appeared in person (with some assistance from a French       translator)
For the Respondent                  Mr A Seglenieks, Departmental Advocate