EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Listing of CITES Species
Declaration of stricter domestic measure in accordance with section s303CB
Section 303CB of the Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act) allows the Minister, by instrument published in the Gazette, to declare that the list referred to in section 303CA of the EPBC Act (the list of CITES species) has effect as if it were modified as set out in a declaration.
The purpose of this instrument is to make a declaration to introduce a stricter domestic measure to treat all species of the order Cetacea (all whales, porpoises and dolphins) included in Appendix II of the list of CITES species as if they are included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Under section 303CB of the EPBC Act, the Minister may declare a stricter domestic measure, and thereby modifying the list of CITES species, provided the declaration has the effect of treating a specified specimen that is included in Appendix II to the list of CITES species as if the specimen were included in Appendix I to the list of CITES species (paragraph 303CB(2)(a) of the EPBC Act).
The introduction of this stricter domestic measure to list all cetaceans as Appendix I under the list of CITES species is required as a result of amendments to Part 13 of the EPBC Act. This stricter domestic measure will remove the need for duplication of permits, increases certainty for decision-makers and stakeholders, and continues the high level of protection of cetaceans that prohibits the import of personally owned or commercially-harvested specimens taken from the animal following the date of the listing of that species under the list of CITES species. In addition, the introduction of a stricter domestic measure to have all cetaceans listed as Appendix I under the list of CITES species will continue to ensure appropriate protection for cetaceans from the threat of international trade.
All species within the order Cetacea are listed as at least Appendix II under the list of CITES species, with some species listed as Appendix I. Under paragraph 303CD(6)(b) and section 303CC(4) of the Act, Appendix I listed non-live specimens may only be imported or exported if a certificate/permit has been issued to the effect that the specimen was acquired before the provisions of CITES applied to the specimen. International movement of non-live specimens may also occur for scientific, educational or exhibition purposes (see paragraphs 303CC(3) and 303CD(5) and subparagraph 303CG(3)(e)(i) of the EPBC Act). Appendix I live specimens may only be moved internationally for scientific, research and exhibition purposes.
No specific consultation on this modification to the list of CITES species has been undertaken as the modification is considered to be machinery in nature. The modification aligns with Australian Government policy for the protection and conservation of Cetacea, particularly the maintenance of the ban on commercial trade in recently harvested cetacean products.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This instrument will commence on the commencement of Items 423, 434, 439, and 441 of the Environment and Heritage Legislation Amendment Act (No. 1) 2006.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive protection and conservation of Australia's environment, including wildlife and biodiversity. The Act provides mechanisms for the protection of endangered species and ecosystems, among other environmental matters. In this context, the EPBC Act incorporates the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) through the listing of species. The listing of CITES species is intended to regulate and control international trade in endangered wildlife, ensuring that it does not threaten their survival. The Environment Protection and Biodiversity Conservation (CITES Specimens) Declaration 2007, made under section 303CB of the EPBC Act, was introduced to declare a stricter domestic measure that aligns with the Australian Government's policy on the protection and conservation of cetaceans. This measure modifies the list of CITES species to treat all species within the order Cetacea as if they are listed in Appendix I, thereby enhancing their protection from international trade and ensuring compliance with the high conservation standards set by CITES.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, through this legislative instrument, extends its regulatory reach to include all species within the order Cetacea, commonly known as whales, porpoises, and dolphins. This stricter domestic measure modifies the list of CITES species by treating all cetaceans as if they were listed under Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), regardless of their current Appendix II listing. This modification is instrumental in ensuring that all cetaceans receive the highest level of protection under Australian law, prohibiting the importation of both personally owned and commercially harvested specimens taken after the date of listing. The measure is designed to streamline regulatory processes by eliminating the need for duplicate permits and enhancing certainty for decision-makers and stakeholders. Geographically, the Act applies nationally, aligning with Australian Government policy for the protection and conservation of cetaceans and reinforcing the ban on commercial trade in recently harvested cetacean products. The instrument is a legislative instrument under the Legislative Instruments Act 2003 and will commence with the specified items of the Environment and Heritage Legislation Amendment Act (No. 1) 2006.
Key Provisions
The main operative sections of this legislation, as outlined in the explanatory statement, focus on section 303CB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which allows the Minister to declare a stricter domestic measure for the listing of CITES species. Specifically, this declaration modifies the list of CITES species to treat all cetaceans (whales, porpoises, and dolphins) as if they are included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This stricter domestic measure is introduced due to amendments in Part 13 of the EPBC Act and aims to eliminate the need for duplicate permits, enhance certainty for decision-makers and stakeholders, and maintain a high level of protection for cetaceans against the threat of international trade (section 303CB(2)(a)).
The obligations and requirements imposed by this Act on parties or entities it governs include adhering to the stricter domestic measure that treats all cetaceans as if they are listed in Appendix I of CITES. This means that parties involved in the import, export, or international movement of cetacean specimens must comply with the stringent regulations applicable to Appendix I species. For instance, the import or export of non-live cetacean specimens is permitted only if a certificate or permit is issued, certifying that the specimen was acquired before the CITES provisions applied to it. Furthermore, international movement of live cetacean specimens is allowed only for scientific, research, or exhibition purposes. These measures ensure that cetaceans receive the highest level of protection against the risks posed by international trade, in line with Australian government policy.
The legislation also outlines potential offences, penalties, and consequences for breach, although specific details are not provided in the explanatory statement. Generally, under the EPBC Act, breaches of the Act or its regulations can lead to both civil and criminal penalties. Civil penalties can include fines, which vary depending on the nature and severity of the offence. For example, under section 528 of the EPBC Act, the maximum penalty for an offence involving the taking of a migratory species listed in Appendix I of CITES can be up to $330,000 for an individual or $1.65 million for a corporation. Criminal penalties can include imprisonment, with the specific terms depending on the severity of the offence and the jurisdiction in which it is prosecuted. Additionally, the Act may provide for other remedies and enforcement mechanisms to ensure compliance and protect the interests of cetacean conservation.