EXPLANATORY STATEMENT
(Issued by the Authority of the Minister for the Environment and Energy)
Environment Protection and Biodiversity Conservation Act 1999
List of CITES species Amendment 2018 (No. 1)
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides for the protection of the environment, including wildlife that may be adversely affected by trade, and the implementation of Australia’s international environmental responsibilities.
Section 303CA of the Act provides for a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to be established for the purposes of the Act (the list). Under subsection 303CA (3) of the Act, the list must include all species from time to time included in any of Appendices I, II and III to CITES. Subsection 303CA (9) of the Act provides that the Minister may amend the list, as necessary, to correct an inaccuracy or update the name of a species, to include all species required to be included in the list under subsection 303CA (3) and so that the notations in the list are consistent with CITES.
Under CITES (Article XIV, paragraph 1), Parties maintain the right to “...adopt stricter domestic measures regarding the conditions of trade, taking, possession or transport of specimens included in Appendices I, II and III of the Convention, or the complete prohibition thereof…”. Stricter domestic measures are enabled under section 303CB of the Act, whereby the Minister can modify the list of species for the purposes of the Act to, inter alia, treat a specified specimen that is included in Appendix II to CITES as if the specimen were included in Appendix I to CITES.
On 20 March 2017, the Minister declared, under section 303CB (1), that all populations of the species Loxodonta africana (African Elephant) included in Appendix II to CITES are to be treated as though they are included in Appendix I. The Minister also declared on this date, pursuant to the same subsection, that all species in the order Cetacea (whales, porpoises and dolphins) that are included in Appendix II are to be treated as though they are included in Appendix I to CITES. The declaration of a stricter domestic measure for Loxodonta africana was originally made on 10 December 2002 and the declaration of a stricter domestic measure for Cetacea was first made on 25 January 2007.
The list was amended, under subsection 303CA (9), to include all Loxodonta africana and Cetacea under Appendix I to CITES to reflect the stricter domestic measures. The CITES Appendix for Cetacea and Loxodonta africana and the notation for Loxodonta africana were incorrectly reflected in the list as ‘amendments’ rather than ‘modifications’, as subsection 303CA (9) does not permit the list to be amended for the purpose of making a stricter domestic measure.. The purpose of this instrument is to update the list to correct this inaccuracy and ensure the Appendices and notations for Loxodonta africana and Cetacea are consistent with CITES. The amendments are administrative in nature, and do not affect implementation of existing requirements. The list will continue to have effect as modified by the declaration of stricter domestic measures for Loxodonta africana and Cetacea. In addition, the first listing date for Loxodonta africana has been modified to reflect the date the species was first listed in Appendix III, rather than when the species was first listed in Appendix II. This is in accordance with Article VII, paragraph 2; Resolution Conf. 13.6 (Rev. CoP16); and guidance received from the CITES Secretariat.
The list has also been amended to include the listing date for Anguilla anguilla (European eel). Anguilla anguilla was listed under Appendix II to CITES effective 13 March 2009. This listing date was not included in the list when it was amended to reflect the inclusion of Anguilla anguilla on CITES. Amending the list to include the listing date ensures that the list is accurate and consistent with CITES. The common name for Anguilla anguilla, European eel, has also been included through this amendment, to provide for ease of reading of the list.
The Instrument is a Legislative Instrument for the purposes of the Legislation Act 2003.
Authority: subsection 303CA(9) of the Environment Protection and Biodiversity Conservation Act 1999.
Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to safeguard Australia's biodiversity and the environment, ensuring the nation's compliance with international environmental agreements such as CITES. This Act establishes a list of species under CITES, reflecting the commitments Australia has made to protect endangered species from the adverse effects of international trade. The Environment Protection and Biodiversity Conservation Act 1999 was introduced to fill the gap in national legislation concerning the protection of endangered species and to align Australia's domestic laws with international environmental standards. The Act was passed by the Australian Parliament and its policy objective is to ensure the implementation of Australia's international environmental responsibilities, particularly those under CITES, to protect endangered species from the risks posed by international trade. The explanatory statement accompanying the legislative instrument clarifies that the amendments are made to correct inaccuracies and ensure consistency with CITES, without altering existing requirements or the effect of the stricter domestic measures already in place.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to any person or entity within Australia that may affect, or be affected by, the environment and its wildlife, with a particular focus on those involved in trade that could potentially impact endangered species. The Act’s geographic reach is national, ensuring uniform environmental protection across all states and territories. The Act mandates the establishment of a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), requiring the inclusion of all species listed in Appendices I, II, and III of CITES. This list can be amended to correct inaccuracies, update species names, and align notations with CITES requirements. Additionally, the Act allows the Minister to implement stricter domestic measures, treating species listed in Appendix II of CITES as if they were in Appendix I, which applies to the African Elephant and all species in the order Cetacea. These amendments ensure that the list is accurate and consistent with CITES, reflecting the true conservation status and regulatory requirements of the listed species.
Key Provisions
The primary operative sections of this legislation are sections 303CA and 303CB of the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 303CA (3) mandates the establishment of a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) for the purposes of the Act. This list must include all species included in Appendices I, II, and III to CITES. Section 303CA (9) permits the Minister to amend the list to correct inaccuracies or update species names, to include all species required by subsection 303CA (3), and to ensure the notations in the list are consistent with CITES. Section 303CB enables the Minister to modify the list for the Act to treat specified specimens as if they were included in Appendix I to CITES. This includes specimens from Appendix II to CITES, allowing for stricter domestic measures regarding their trade, taking, possession, or transport.
The Act imposes specific obligations and requirements on the parties and entities it governs. The Minister is responsible for maintaining and updating the list of CITES species in accordance with the Act and CITES. This includes ensuring the list is accurate and consistent with CITES, correcting any inaccuracies, and reflecting stricter domestic measures. The Minister must also ensure that the list reflects the correct listing dates for species, such as the European eel (Anguilla anguilla), and provide common names to enhance readability. Entities and individuals involved in the trade, taking, possession, or transport of these species must comply with the regulations set out in the Act and any stricter domestic measures imposed by the Minister.
The legislation outlines potential offences, penalties, or consequences for breaches. Although the explanatory statement does not specify the exact penalties, breaches of the Act can result in significant civil and criminal penalties. For example, unauthorised trade in endangered species can lead to fines and imprisonment under the Act. The penalties can vary depending on the severity and nature of the breach. Stricter domestic measures, such as treating Appendix II species as if they were Appendix I species, carry additional compliance requirements and can result in higher penalties if violated. The specific penalties are detailed in the Act and can include substantial fines and imprisonment terms for serious or repeated breaches.