Jacaru Pty Ltd and Minister for the Environment
[2021] AATA 3623
•11 October 2021
Jacaru Pty Ltd and Minister for the Environment [2021] AATA 3623 (11 October 2021)
Division: GENERAL DIVISION
File Number: 2021/1937
Re:Jacaru Pty Ltd
APPLICANT
AndMinister for the Environment
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:11 October 2021
Place:Brisbane
The Tribunal:
(a)substitutes the decisions under review and issues to the Applicant pursuant to ss. 303CG and 303DG, subject to paragraph (b) below, CITES Multiple Consignment Authorities in respect of Applications WT2020-002304 and WT2020-002569.
(b)remits the matters to the Respondent for consideration of what conditions should be imposed pursuant to s. 303GE.
............................[SGD]..........................
Deputy President J Sosso
Catchwords
ENVIRONMENT – Regulated native specimen – CITES specimen – Application for export permit – Refusal – history of non-compliance – Objects of Part 13A – Discretion to issue permit – Consideration of business hardship – Decision substituted – Remittal for consideration of permit conditions
Legislation
Administrative Appeals Tribunals Act 1975 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Cases
Anzbrook Pty Ltd v Minister for the Environment, Heritage and the Arts [2010] FMCA 34
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Secondary Materials
Convention on International Trade in Endangered Species of Wild Fauna and Flora [1976] ATS 29
List of Exempt Native Species Instrument 2001 (Cth)
REASONS FOR DECISION
Deputy President J Sosso
11 October 2021
INTRODUCTION
Jacaru Pty Ltd (the Applicant) is an Australian company which has been exporting products made from Australian materials for some time. In particular, the Applicant has been exporting hats made from kangaroo leather with crocodile hat bands for 30 years to approximately 40 countries.
Australia is a party to the Convention on International Trade in Endangered Species (CITES) and, to ensure that Australia complies with its obligations under, inter alia, CITES, Part 13A of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides a strict regulatory regime for the international movement of wildlife specimens.
Division 2 of Part 13A of Chapter 5 of the Act deals specifically with CITES species, and, in particular, with offences and a permit system that allows, inter alia, for their export.
Sections 303CC and 303CD of the Act prohibit the import or export of specimens of species that are listed under Appendices I, II and III of CITES unless, as in this case, the exporter holds a permit or an exemption applies.
Relevantly the Salt-water Crocodile (Crocodylus porosus) is listed in Appendices I and II of CITES.
Although s. 303CC(1) makes it an offence for a person to export a CITES specimen, s. 303CC(2) allows for CITES specimen exports when this trade is in accordance with a permit that was issued under ss. 303CG, 303GB or 303GC and is in force.
Section 303CE provides for a person to apply to the Minister (the Respondent) responsible for administering the Act for a permit.
Subsection 303CG(3) provides that the Minister must not issue a permit unless he/she is satisfied that:
“(a) the action or actions specified in the permit will not be detrimental to, or contribute to the trade which is detrimental to:
(i) the survival of any taxon to which the specimen belongs; or
(ii) the recovery in nature of any taxon to which the specimen belongs; or
(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(b) the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, or a State or of a Territory; and…
(d) if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA – that restriction or condition has been, or is likely to be, complied with…”
Once an application for a permit is made, the Minister must either issue, or refuse to issue, the permit within 40 days, inter alia, of the day the application is made – s. 303CI. The duration of a permit, referred to as the “permitted period”, starts on the date of issue and ends not later than six months from that date – s. 303CG(2A), 303CJ.
Division 3 of Part 13A of Chapter 5 of the Act deals with exports of regulated native specimens.
Section 303DA provides that a regulated native specimen is a specimen that:
“(a) is, or is derived from, a native animal or a native plant; and
(b) is not included in the list referred to in section 303DB.”
The Minister must establish a list of exempt native specimens (s303DB(1)) which may be subject to restrictions and conditions – s. 303DB(2). The restrictions and conditions may – s. 303DB(3):
“(a) consist of a quantitative limit in relation to the export of the specimen; or
(b) relate to the circumstances of the export of the specimen; or
(c) relate to the source of the specimen; or
(d) relate to the circumstances in which the specimen is taken or, if the specimen is derived from another specimen that was taken, the circumstances in which the other specimen was taken; or
(e) relate to an expiry date for the inclusion of the specimen on the list.”
It is an offence to export a regulated native specimen without having a permit issued under either ss. 303CG, 303DG, 303GB or 303GC – s. 303DD.
Relevantly the Eastern Grey Kangaroo (Macropus giganteus) and the Red Kangaroo (Macropus rufus) are listed species in the List of Exempt Native Species Instrument 2001, which is the list required to be established by s. 303DB(1). However, the exemption only applies in respect of:
“Tanned or other processed skin products, meats or articles made from meat or tanned skins of the listed species as personal baggage.”
An application may be made to the Minister for a permit under s. 303DG – s. 303DE. The “permitted period” during which the action or actions permitted under the permit may be taken starts on the date of issue of the permit and ends no later than 3 years from that date – s. 303DG(2A), s. 303DI.
The Minister must not issue a permit unless he/she is satisfied that – s. 303DG(4):
“(a) the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of any taxon which the specimen belongs; or
(ii) any relevant ecosystem (for example, detriment to habit or biodiversity); and…
(c) the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory…”
A permit may be suspended for a specified period or cancelled by the Minister – s. 303GI.
If a permit is suspended or cancelled an applicant may apply to the Tribunal for a review of the decision – s. 303GJ(1)(e). The Act does not provide for an internal review but, rather, allows for an external review by the Tribunal.
The Applicant was the recipient of two export permits – PWS2020-AU-000432 (Multiple Consignment Authority - MCA) approved on 18 February 2020 (Permit 1) and PWS2020-AU-001495 (Multiple Consignment Authority – MCA) approved on 27 July 2020 (Permit 2).
Permit 1, which was due to expire on 18 February 2021, allowed the Applicant to export – TOO2 p. 7:
(c)100 specimens of Eastern Grey Kangaroo as hats;
(d)20 specimens of Eastern Grey Kangaroo as belts; and
(e)20 specimens of Red Kangaroo as hats.
Permit 2, which was due to expire on 27 January 2021, allowed the Applicant to export – TOO3 p. 13:
(a)50 specimens of Salt-water Crocodile as hats;
(b)100 specimens of Salt-water Crocodile teeth;
(c)100 specimens of Salt-water Crocodile as hat bands; and
(d)100 specimens of Salt-water Crocodile as belts.
On 15 December 2020 an officer from Australian Border Force (ABF) emailed an officer from Wildlife Trade Compliance of the Department of Agriculture, Water and the Environment (the Department) of alterations to both Permits. –T008 p. 33.
The handwritten alteration to Permit 1 purported to increase the number of Eastern Grey Kangaroo hats for export from 100 specimens to 501 specimens – T08.2 p. 37.
The handwritten alteration to Permit 2 purported to increase the number of Salt-water Crocodile hat bands for export from 100 specimens to 501 specimens – T08.1 p. 35.
ABF confirmed that the shipment in question was not seized as “it never made it to the border for clearance…[it] was refused by ABF because the number was greater than the quantity limit on the permit. As it was refused [the Applicant] never attempted to continue with the shipment. As such, all the goods are still with [the Applicant] – T017 p. 71.
Following an exchange of emails between the Department and ABF, the Department undertook an audit of acquittals for Permit 1 and identified that the Applicant had exceed its approved export quota of 100 specimens of Eastern Grey Kangaroo hats by 3008 specimens – T21.2 p. 85.
On 18 December 2020 the Department received from the Applicant an application to export Salt-water Crocodile products (hats, crocodile teeth on hat bands, crocodile hat bands and crocodile belts), Application WT2020-002304 (Application 1) – T010 pp. 42 – 45.
On 21 December 2020 the Department received from the Applicant an application to export Eastern Grey Kangaroo products (hats and belts) and Red Kangaroo products (hats), Application WT2020-002569 (Application 2) – T011 pp. 47 – 49.
Permits 1 and 2 were cancelled, pursuant to s. 303GI(2), on 5 January 2021, and the following day an email was sent by the Department to Ms Marian Cummings, an employee of the Applicant advising of the same. The email contained the following information – T020 p. 78:
“As discussed, the Multiple Consignment Authorities (MCAs) were cancelled due to advice received from Australian Border Force (ABF) that the MCAs had been altered by hand to increase the number of specimens authorised by the Department.
The cancellation of the permits means that Jacaru Pty Ltd are no longer able to export any specimens listed on the MCAs.”
A delegate of the Minister wrote to Ms Cummings, on behalf of the Applicant, on 14 January 2021 regarding Applications 1 and 2 – T26.1 pp. 103 – 105, T26.2 pp. 106 – 108. Both were procedural fairness letters and both were substantially similar, although each made reference to the relevant sections of the Act applicable to the circumstances of the application. In the case of Application 2, after confirming that the delegate was considering the applications pursuant to s. 303DG and also confirming information that was before the delegate, further information was requested in response to adverse information – T26.1 pp. 104 – 105:
“Section 303DF(1) provides that the Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application. As a delegate of the Minister, pursuant to section 303DF(1), I request the following further information that I consider is required to allow me to properly assess your application.
The Department has information about the Applicant’s alleged contravention of sections 303CC and 303DD and the failure to comply with the conditions of other export permits, which I consider to be credible, relevant and significant to your Application and, if relied on, may result in me deciding either not to grant a permit under section 303DG of the EPBC Act or granting a permit with additional conditions attached to the permits.
In particular, I consider that the information before me demonstrates that the Applicant may have failed to comply with certain conditions attached to permit no PWS2020-AU-000425, and permit no PWS2020-AU-001495.”
The delegate provided Ms Cummings with information relating to the handwritten changes to specimen numbers in Permits 1 and 2 and also the Acquittal Audits on previous Permits, including Permit 2.
On 18 January 2021 Ms Cummings had a telephone conversation with a Departmental officer. The officer, in an internal Departmental email of the same date, made this report of the conversation – T029 p. 112:
“Marian advised that she ‘thought she could’ alter the quantity authorised, to what she needed the quantity to be, to allow her to export.
I advised that I would need the information in writing, and Marian advised that she will send an email shortly.”
Ms Cummings sent the following email on the same day – T028 p. 110:
“Thank you for your time this morning.
With regards to your correspondence as per above. I applied for an EDN early in January, and was informed by Border Force that it had been declined because the numbers had been changed.
The reason this happened was that that was the number of specimens I wanted to export. I had no idea, and did not understand that I could not change the numbers to reflect what I was sending.
Also is the fact we exported more specimens on our permit number PWS-2020-AU-000432 that was originally applied for. Since the new owners bought Jacaru in April 2019 they have gradually been increasing the export market.
I also had no idea how many items we had sent during the year. Now going forward I will keep a spreadsheet record to make sure we do not exceed our authorised quantity of specimens again.
Should I think we are going to exceed the quota, what do I need to do to have the numbers increased? As this new permit number WT2020-002569 I submitted was for 100 then I changed it to 2000. I now recall that the application is for 3 years, which means there could be an increase in exports.”
On 27 January 2021 Ms Cummings contacted the Department to seek information on the progress of consideration of Applications 1 and 2. Ms Cummings advised the Department that the Applicant had outstanding orders awaiting export, which had already been paid for by the relevant importers. In an email the following day, a Departmental officer advised that the Department was still considering the applications and was awaiting further advice from other areas of the Department before making a decision. The following information was provided to Ms Cummings – T031 p. 115:
“During your call you advised Ms Cooper that you currently have outstanding orders awaiting export, which have already been paid for by the relevant importers.
The CITES Management Authority of Australia advise that on application by Jacaru Pty Ltd it might consider granting single-use permits to allow Jacaru to export the outstanding orders. If Jacaru Pty Ltd wishes to obtain single-use permits for the outstanding orders, it will need to apply for a single use permit for each invoice that has been raised for an international customer…”
Ms Cummings subsequently asked how long it would take for a single use permit (SUP) to be approved and was informed that it could take up to 40 business days to process, although they were generally processed considerably faster. Ms Cummings replied that if it took 40 business days she would be “better off waiting for the applications that I have in place now, to be hopefully, approved” – T032 p. 117.
On 16 March 2021 a delegate of the Minister refused to issue permits in relation to Applications 1 and 2 – T34.1 pp. 122 – 126 and T34.2 pp. 127 - 131. The Applicant was informed that it would be able to apply for SUPs to allow it to export products.
Two detailed Statement of Reasons were issued by the delegate of the Minister – T37A pp. 140 – 146 and T37B pp. 147 – 153. The Statement of Reasons are substantially the same. The following are extracts from the Statement of Reasons for Application 1 – T37A pp. 144 – 145. These reasons relate to the requirements of s. 303CG(3), which provision is set out above:
“24. The Applicant stated that they have been exporting Crocodile products for 30 years, which covers the entire 22 year duration the EPBC Act has been in force. On that basis I was not satisfied with the Applicant’s response that it was not aware of its obligations under Division 2 of Part 13A of the EPBC Act. In particular, that it was not permitted to alter PWS2020-AU-001495 and PWS2020-AU-000432, or to export a number of specimens which exceeded the number authorised under those permits.
25. Although the Applicant has offered the use of a spreadsheet to manage future quotas, I was not satisfied that the Applicant’s proposal to use a spreadsheet to manage future quotas would satisfactorily address the circumstances that led to the non-compliance outlined in paragraph 8, as the first shipment sent under permit PWS2020-AU-00432 was already more than double the authorised quota.
26. In considering the non-compliance, I also considered the willingness and/or ability of the Applicant to address the circumstances that led to the non-compliance, based on the responses provided by the Applicant when given an opportunity to explain its actions. Given the role of the Applicant, the length of time in the industry, and the clear nature of the non-compliance, I was unable to reach the conclusion that the Applicant would be willing and/or able, to easily avoid similar non-compliance for future permits and I considered the risk of future non-compliance to be high.
27. Multiple Consignment Authority (MCA) permits are intended to assist regulated entities, engaged in the regular export of wildlife specimens. It is expected that regulated entities able to use a MCA have an understanding of, and a history of compliance with, their obligations under the EPBC Act through the initial use of Single Use Permits.
28. Single Use Permits (SUPs) are used by regulated entities to undertake single imports or exports of wildlife specimens. SUPs allow the Department to both support and monitor regulated entities, reducing the risk of unintentional non-compliance with Section 303CC of the EPBC Act.
29. The option of submitting SUP applications for consideration in the future remains open to the Applicant. The Department is able to assist the Applicant in understanding and meeting its obligations under the EPBC Act, and compliance is more easily monitored and responded to, through the use of SUPs.”
Next, the delegate turned his attention to s303BA(1)(a)–(b) which sets out the objects of Part 13A. Specifically the delegate referred to the following objects:
“(a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;
(b) to protect wildlife that may be adversely affected by trade.”
The delegate made the following findings – T37A p. 145:
“32. I consider the nature of the non-compliance outlined at paragraph 8, that is, exceeding authorised quotas of CITES listed wildlife specimens for the purpose of commercial trade, increases the risk that the objects of Part 13A of the EPBC Act, under Section 303BA, will not be met, specifically Section 303BA (1)(a-b)….
33. I consider the criteria under Section 303CG(3)(a) specifically mitigates the risk that 303BA(1)(a-b) will not be met.
34. I consider the nature of the non-compliance to be directly relevant to my considerations under Section 303CG(3)(a), and that the risk of repeated non-compliance was high. As such I was unable to be satisfied that the criteria under 303CG(3)(a) would be met if I approved permit application WT2020-002304.
35. The non-compliance outlined at paragraph 8 represents a contravention of a law of the Commonwealth, that is, specimens were exported in a manner that contravened Section 303CC.
36. I consider the risk of repeated non-compliance to be high and as such was unable to be satisfied that the criteria under 303CG(3)(b) would be met if I approved permit application WT2020-002304.
37. For the reasons outlined above and at paragraph 16, I was unable to be satisfied that the export through the use of a Multiple Consignment Authority permit would not be detrimental to, or contribute to trade which is detrimental to: the survival of any taxon to which the specimens belong; or any relevant ecosystem, for the purposes of subparagraph 303CG(3)(a).
38. For the reasons outlined above and at paragraph 16, I was unable to be satisfied that the export through the use of a Multiple Consignment Authority permit would not contravene a law of the Commonwealth for the purposes of subparagraph 303CG(3)(b).”
On 11 May 2021 the Department issued a SUP for the export of 180 Eastern Grey Kangaroo leather hats, on 12 May 2021 for 11 Salt-water Crocodile leather hatbands with teeth and on 19 May 2021 for 262 Eastern Grey Kangaroo leather hats and 52 Salt-water Crocodile hat bands – T038 – T041 pp. 154 – 157.
On 31 March 2021 the Applicant applied to the Tribunal for a review of the decisions outlined above refusing to issue permits in relation to Applications 1 and 2 – T001 pp. 1 – 6. The following reasons were provided for the review application – T001 p. 5:
“Jacaru has been exporting Kangaroo leather hats some with Crocodile hat bands for over 30 years. Earlier this year I applied for an EDN and I hand wrote the number of hats we were exporting. This application was refused and our current permits were cancelled immediately. We were told that because of non-compliance we could not apply for another multiple consignment authority, we will have to apply for a single use permit. I would like to appeal this decision as we have never had an issue with permits before. I understand now that what I did was not the correct way to do things. It would be much appreciated if you could look favourably at this appeal as now this is impacting our business in being able to export the Kangaroo leather products to our overseas customers.”
APPLICANT’S CONTENTIONS
The Applicant provided the Tribunal a Statement of Issues, Facts and Contentions (ASIFC) dated 23 June 2021. In addition, the Tribunal was provided with a document entitled “Standard Operating Procedure Import/Export Process” (the Manual).
In the ASIFC the following information was provided:
“The Applicant acknowledges having made an error in amending the quantity of hats on the permit.
The Applicant’s team member did not realise that she was breaching the terms of the permit when the permit was amended, she had no idea and did not understand that she could not change the quantities to reflect what was being sent.
The Applicant would have thought the Department issuing the permits would have contacted the Applicant with a warning regarding the breach and not the total cancellation of the permits.”
The Applicant then made the following contentions:
“The Applicant’s team member has been responsible for the export permits for 5.5 years and has acted to the best of her knowledge and experience.
The Applicant has now implemented a new Standard Operating Procedure (Export Manual – attached to this letter) which lists the step-by-step process of applying for a permit and other processes involved exporting its product to avoid this error happening again.
Due to the COVID pandemic, the applicant’s sales have been heavily impacted. Having previously generated a large share of sales from international tourists and airport retail stores, these sales have evaporated over the last 15 months. Over the last 6 months, as other countries recover from the pandemic, export sales have become of growing importance to the applicant’s business. These sales are difficult to forecast. In addition, due to long lead times for production, gaining export permits and freight delivery times to some countries, customers frequently amend their order quantity based on their demand.”
RESPONDENT’S CONTENTIONS
The Respondent made the following contentions – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) paras 74 – 82:
(a)the Applicant has over 30 years’ experience of exporting native specimens;
(b)the team member responsible for amending Permits 1 and 2 had five and a half years experience of exporting specimens under Part 13A of the Act, and, as such, the contention that she was unaware of the permit conditions should be given little weight;
(c)a perusal of air and sea cargo records for the Applicant for the period 1 January 2018 to 24 May 2021 indicates past non-compliance was significant and repeated. The alteration of Permits 1 and 2 was not an isolated incident;
(d)it is relevant for the Tribunal to consider the Applicant’s past non-compliance when considering whether to exercise the discretion to grant a permit under Part 13A;
(e)a history of past non-compliance is relevant as a guide to the likelihood of future non-compliance;
(f)the Manual is insufficient to mitigate the risk of future non-compliance:
a.it does not specify any procedure for monitoring or checking export numbers before being submitted to ensure that permits are adequate to meet anticipated demand;
b.while warning staff not to alter an export permit, it does not specify that export numbers must not exceed the amounts contained in the MCA permit;
c.it does not specify what process should be followed when an export order exceeds the number of specimens in the MCA permit;
d.it focuses on internal steps to be followed to action an export sale but gives inadequate consideration to MCA requirements;
e.it does not specifically refer to permit conditions at all;
f.it does not specify the need to acquit exports in the Department’s Online Services Portal or to verify the export in the Integrated Cargo System (ICS), both of which are conditions of an MCA permit;
g) business hardship is not a relevant consideration as it is not consistent with the objects of the Act, which focus on protection of wildlife and for any commercial exports to be managed in a sustainable way; and
h) SUP’s better allow the Department to monitor compliance and allow the Applicant time to fully assess the scope of its obligations under export permits and implement robust policies for the responsible management of wildlife exports in a manner which complies with the conditions of the export permits.
REVIEW ON THE PAPERS
Section 34J of the Administrative Appeals Tribunals Act 1975 provides for circumstances when a Hearing may be dispensed with.
Where it appears to the Tribunal that the issues for determination can be adequately dealt with in the absence of the parties and the parties consent to the review being determined without a Hearing, the Tribunal may review the decisions by considering the material lodged without convening a Hearing.
Both parties confirmed by email that they consented for this matter to be dealt with “on the papers”. Having carefully considered the material provided to the Tribunal, I have formed the view that the issues for determination can be dealt with in the absence of the parties.
CONSIDERATION
The issue before the Tribunal is whether the discretion to grant permits as sought by Applications 1 and 2 should be exercised in favour of the Applicant. In short, the only issues before the Tribunal relate to Applications WT2020-002304 and WT2020-002569 and not the decisions to cancel Permits 1 and 2.
In summary, the Respondent contends (RSFIC paras 61 – 62) that permits should not issue pursuant to Applications 1 and 2 because of the Applicant’s past non-compliance with the statutory scheme having regard to ss. 303CG(3)(a) and 303DG(4)(a) and the objects of Part 13A as specified in s. 303BA.
The Respondent, correctly, concedes (RSFIC para 65) that past non-compliance by an applicant for a permit under Part 13A does not fall within circumstances prescribed in ss. 303CG(3) and 303DG(4). In short, even though an applicant may have previously contravened the statutory scheme this is not of itself an automatic bar to the granting of a permit and the Tribunal has the discretion to grant the permits sought by an applicant.
The Respondent also concedes (RSFIC para 65) that none of the circumstances in Part 17 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the Regulations) prevent the Tribunal from granting permits to the Applicant.
The Tribunal agrees with the Respondent’s contention (RSFIC para 66) that neither ss. 303CG(3) or 303DG(4) require the Minister (or, on review, the Tribunal) to issue a permit if the Minister is satisfied of those listed matters. Rather, the Minister (or Tribunal) is required to take into consideration all relevant considerations, and, having weighed those considerations, determine if the discretion to grant a permit should be exercised. The Respondent (RSFIC para 69) drew the Tribunal’s attention to the wording of ss. 303CG(1) and 303DG(1) which provides that the Minister may issue a permit.
The Tribunal was referred to a number of authorities, including Anzbrook Pty Ltd v Minister for the Environment, Heritage and the Arts [2010] FMCA 34 where the Court, after referring to s. 303CG, made these observations (at [17] - [18]):
“17. The decision of the respondent to decline the application for a permit was made under s.303CG of the Act…
18. The respondent correctly submits that the respondent is given a discretion whether or not to issue a permit. The respondent draws attention to the fact that the decision-maker has to have a state of satisfaction before he can exercise the discretion otherwise vested in him to issue a permit….”
It was also submitted by the Respondent (RSFIC para 70) that the discretion vested in a decision-maker is not confined to the criteria contained in ss. 303CG and 303DG but is subject to any limits arising from the scope and objects of the Act or other express provisions or subordinate legislation. The Tribunal agrees with this submission.
The Respondent also drew the Tribunal’s attention to the objects of the Act, and, in particular, to s. 3, to “promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources”. Further, one of the objects of Part 13A (s. 303BA(1)(d)) is “to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way”.
It is accepted that the objects outlined in ss. 3 and 303BA do not prevent a decision-maker taking into consideration relevant considerations, which, inter alia, could in certain circumstances include the history of an applicant’s non-compliance with the requirements of Part 13A.
The Tribunal, then, is in agreement with the thrust of the Respondent’s contentions about the proper construction of Part 13A, and specifically agrees that it is open, and proper, for a decision-maker to take into account when deciding whether to issue a permit, an applicant’s history of either compliance or non-compliance. Further, the weight to be given to a history of non-compliance depends on the factual matrix before the decision-maker – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. If non-compliance is an isolated event and out of character for an applicant it may be given little weight, whereas a long history of substantial non-compliance would be given greater weight, and may be determinative. Likewise, a history of non-compliance is relevant as a predictor of future conduct – Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
In this matter, however, the “history” of non-compliance by the Applicant is conjectural. Quite properly, the Respondent does not ask (RSFIC para 78) the Tribunal to make a finding of fact that the claimed incidences of prima facie non-compliance, which are set out in the s. 38AA material, ST42 - ST55, occurred.
The Respondent, helpfully, outlined at para 77 of the RSFIC a summary of the suggested history of the Applicant’s non-compliance. The Tribunal has been provided with almost 250 pages of material most of which comprise raw data and some of which is difficult to read or understand.
There are at least three problems with this documentation.
First, as the Respondent points out (RSFIC para 78), it remains under review by the Department. In short, it is a case of work in progress as distinct from a focused and robust investigation which has concluded and from which an appropriate course of action can be initiated.
Second, it would appear that the Applicant has not, at this time, been given an opportunity to respond to the additional information contained in the ST documents, or if that opportunity has been afforded, the Tribunal does not have before it any response provided.
Third, the veracity of the preliminary conclusions reached by the Respondent from the ST documents, has not been tested at a Tribunal Hearing. Specifically, the Applicant has not had an opportunity in a public forum to interrogate the information and any conclusions that can be reached from it.
The common law rules of procedural fairness recognise, inter alia, the duty of disclosure and the requirement to give adequate notice. It is axiomatic that there is a breach of natural justice when a decision-maker receives evidence from one party without giving the other party an opportunity to test that evidence. To proceed in such a manner reduces accountability, and critically, in a regime where permits to trade are issued, depreciates informed decision making.
In this matter the Respondent has acted appropriately in drawing the results of its preliminary investigations to the Tribunal. It has properly not asked the Tribunal to make findings of fact from such material. For the reasons outlined above, it is not appropriate for the Tribunal to accept the Respondent’s invitation (RSFIC para 78) to take this material into account when considering the future risk of non-compliance.
The Respondent also contends (RSFIC para 79) that the Manual prepared by the Applicant is insufficient to mitigate the risk of future non-compliance.
The Tribunal agrees that the Manual does have some deficiencies which depreciate its overall utility. In particular, the Tribunal agrees with the Respondent that the following deficiencies appear:
(a)the Manual does not specify the procedure for monitoring or checking export numbers before being submitted to ensure the permits are adequate to meet anticipated demand;
(b)the Manual does not specify the process where an export order exceeds the number of specimens specified in the MCA permit;
(c)there is no specific reference to permit conditions; and
(d)it does not specify the need to acquit exports in the Department’s Online Services Portal or to verify the export in the ICS, both of which are conditions of an MCA permit.
The Tribunal nonetheless is satisfied that the Applicant has attempted in good faith to codify the steps and procedures required to meet its statutory requirements under Part 13A. The fact that the Manual may not adequately address all compliance matters is accepted, but it represents a reasonable initial attempt to ensure that a culture of compliance is embedded in the Applicant’s work behaviour.
At page 14 of the Manual, the following direction is given in bold type:
“ENSURE THAT THE ORIGINAL PERMITS FROM WILDLIFE AND TRADE ARE NOT ALTERED IN ANY WAY.”
It is tolerably clear that the Applicant is taking steps to ensure that the mistake previously made in altering the export Permit will not be repeated.
Further, it would be in the best interests of the Applicant if the Manual is amended to take up the careful analysis of the Respondent which highlights some areas that require improvement.
In summary, then, the Tribunal:
(a)agrees that a decision-maker under Part 13A is vested with a broad discretion to take into account all relevant circumstances when determining whether to issue a permit;
(b)accepts it is open, and appropriate, for a decision-maker to take into account an applicant’s history of compliance or non-compliance;
(c)concurs that a lengthy history of non-compliance may be a determinative consideration in not issuing a permit under Part 13A;
(d)has not made any findings of fact based on the material in the ST documents;
(e)has not taken this material into account when considering the risk of future non-compliance for the reasons outlined above.
Turning then to the remaining contentions, the Applicant points out (ASIFC) that the team member responsible for export permits had been fulfilling these duties for 5 ½ years and acted to the best of her knowledge and experience.
This is, with respect, a less than helpful submission for it necessarily raises the obvious question as to why a person with so much experience in this area would make such a serious and obvious error. A person with such experience should have known that it is not open to an exporter to unilaterally alter quantities in the manner that occurred. Clearly, there are training issues that need to be addressed. It is fortunate, then, that the Applicant has implemented a new training regime underpinned by the Manual.
There were also suggestions in the material before the Tribunal that the Respondent should have issued a warning and not cancelled Permits 1 and 2. Although this is not an issue that requires the Tribunal’s determination, it is appropriate that the Tribunal place on record that a perusal of the material discloses that the officers of the Respondent acted in an appropriate, timely and proportionate manner.
The Applicant points out (ASIFC p. 2) that the COVID-19 pandemic has badly impacted sales and that export sales, in these circumstances, are difficult to forecast. Further, due to long lead times for production and delivery, customers often amend their order quantity. Accordingly, for the Applicant to export in a cost and time efficient manner, an MCA is better suited to cater for these circumstances.
The Respondent, however, submits (RSFIC para 80) that business hardship is not a relevant consideration to be taken into account for the purposes of the Act because it is not consistent with the objects of the Act. It is contended that while the Act contemplates commercial utilisation of wildlife, this is in the context of a statutory regime aimed at protecting wildlife and for any exports to be managed in a sustainable way.
Alternatively, the Respondent contends (RSFIC para 81) that if business hardship is a relevant consideration it should be given little weight because it is not disproportionate to the risk of harm to Australian wildlife arising from the extent of the Applicant’s non-compliance.
It is clear that the objects of Part 13A as set out in s. 303BA focus primarily on the protection of wildlife affected by trade and the promotion of the conservation of biodiversity in Australia and other countries. Section 303BA focuses on the ecological sustainable commercial utilisation of native wildlife.
Business hardship is not a primary consideration for a decision-maker. The primary focus of a decision-maker under Part 13A is the conservation of wildlife and ecologically sustainable business activity. The profit component of such a business is a matter, initially at least, which falls outside of a decision-maker’s focus.
The Tribunal, however, does not accept that business hardship is not a relevant consideration for a decision-maker in all circumstances. Clearly a permit will not be issued if the primary considerations of protection of wildlife and conservation of biodiversity are at odds with that course of action. Where, however, the issuing of a permit does not conflict with the primary objectives of Part 13A, then considerations, for example, of regulatory oversight and financial viability of an applicant can be considered. The weight to be given to these other considerations can only be properly answered having regard to the factual matrix presented to a decision-maker. It is not appropriate to second guess a decision-maker by ascribing to other considerations rigid evaluations of the weight that should be given to any particular other consideration.
In this matter the Respondent contends (RSFIC para 82) that SUP’s have been issued to the Applicant to continue exports of native specimens with appropriate regulatory oversight. The Tribunal accepts that where the Respondent has legitimate concerns about regulatory compliance, but still determines to issue a permit, that an SUP may be preferable means of both facilitating export activity by an applicant but also ensuring that this commercial activity is carried out in compliance with the statutory regime provided for by Part 13A.
For the reasons outlined previously, the Tribunal has not taken into account in this matter the ST documents. If those documents had been taken into account and if through an inquisitorial Tribunal Hearing it was accepted that there had been a history of non-compliance by the Applicant, then a different determination could result. However, it is not necessary to engage in such a theoretical exercise.
Although the reviewable decisions refused the grant of permits, the possibility of export activity being facilitated by two MCAs or two SUPs has been raised. In both reviewable decisions, the Delegate pointed out that the Applicant could apply for SUPs. The Tribunal has only taken into account the compliance issues that arose with Permits 1 and 2 and has formed the view that the problems potentially faced by the Applicant with SUPs weigh in favour of granting MCAs. As will be explained below, questions of regulatory compliance can be appropriately factored into MCAs, and the Tribunal is confident that the Respondent can craft appropriate conditions pursuant to s. 303GE to ensure that the integrity of Part 13A is maintained.
The Tribunal also wishes to place on the public record, its appreciation of the very helpful RSFIC filed by Maddocks Lawyers on behalf of the Respondent. It is a well-reasoned and persuasive document which sets out with clarity and logic the Respondent’s position. As will be seen from the reasons given, the Tribunal found most of the contentions made in the RSFIC to be sound and well-reasoned. It is hoped that although the Tribunal has not concluded in favour of the Respondent’s primary submission of affirming the Delegate’s decisions, that, nonetheless, the reasons given in this Determination will be of assistance to future decision-makers when determining whether to issue a permit under Part 13A.
DECISION
The Tribunal:
(a) substitutes the decisions under review and issues to the Applicant pursuant to ss. 303CG and 303DG, subject to paragraph (b) below, CITES Multiple Consignment Authorities in respect of Applications WT2020-002304 and WT2020-002569.
(b) remits the matters to the Respondent for consideration of what conditions should be imposed pursuant to s. 303GE.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
...........................[SGD]......................
Associate
Dated: 11 October 2021
Hearing:
Heard on the papers
Representative for the Applicant:
Ms Marian Cummings, Jacaru Pty Ltd
Solicitor for the Respondent:
Ms Rosalie Byrne, Maddocks Lawyers
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