EXPLANATORY STATEMENT
(Issued by the authority of the delegate for the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of CITES Species Amendment (2022/073) Instrument 2022
Legislative Authority
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.
Subsection 303CA(1) provides that the Minister must, by legislative instrument, establish a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the Convention) for the purposes of the Act. 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 the Convention. Subsections 303CA(9)(b) and (c) of the Act together provide that the Minister may amend the list, as necessary, so that it includes all species required to be included in the list under subsection 303CA(3) and so that the notations in the list are consistent with the Convention.
Under Article XVI, paragraph 1 of the Convention, Parties may at any time, submit to the Secretariat, a list of species which has been identified as being subject to regulation within its jurisdiction for the purposes of Article II, paragraph 3 of the Convention. Each list submitted under Article XVI, paragraph 1 of the Convention shall be communicated to the Parties as soon as possible after receiving it and the list shall take effect as part of the Appendix III 90 days after the date of communication.
Purpose of the instrument
The purpose of this legislative instrument is to update the List of CITES Species for the purposes of the Act to include the below amendments.
The Convention’s Notification to the Parties 2022/073 (dated 13 October 2022) advised that the European Union requested the Secretariat to amend and include a new species for listing under Appendix III to the Convention.
The European Union has requested the inclusion of Antilles pinktoe tarantula (Caribena versicolor) in Appendix III to the Convention. This amendment is considered to have no practical impact for Australia. Australia did not undertake any stakeholder consultation as Australia is not a range state for the species covered by the listing request (that is, it does not occur naturally in Australia). Further, the species cannot be legally imported to Australia under the Act, as it is not listed in the List of Specimens Taken to be Suitable for Live Import made under section 303EB of the Act.
Consultation
Australia does not propose to enter a reservation to the amendment. The action is consistent with Australia’s strong commitment to the Convention and international cooperation for the protection and conservation of wildlife more generally. The Office of Impact Analysis has advised that the amendment will have minor regulatory impact.
The Antilles pinktoe tarantula amendment comes into force internationally on 11 January 2023. The legislative instrument was made prior to the Joint Standing Committee on Treaties (JSCOT) reporting on the amendment.
The Department of Foreign Affairs and Trade have been consulted on the amendment.
This update to the list of CITES species is in accordance with Australia’s international commitment to implement the Convention. The amendment put into effect by this legislative instrument is considered to have little impact on Australia.
This update to the CITES list is a legislative instrument for the purposes of the Legislation Act 2003.
Section 42 of the Legislation Act 2003 (disallowance of legislative instruments) does not apply (see Legislation (Exemptions and Other Matters) Regulation 2015, section 10, item 15). Amendments to the CITES list are required in order to comply with Australia’s international obligations under the Convention. Furthermore, the assessment of whether to include species on the CITES list are decisions of a technical and scientific nature.
The legislative instrument commences the day after registration. Schedule 1 of the legislative instrument commences on 11 January 2023, with the effect of including the Antilles pinktoe tarantula on the list. This aligns with the commencement of the amendment advised in the Convention’s Notification to the Parties 2022/073.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) aims to safeguard the environment, including wildlife that may be adversely impacted by trade, and to implement Australia's international environmental obligations. The List of CITES Species Amendment (2022/073) Instrument 2022, introduced by the Minister for the Environment, updates the list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The legislative instrument seeks to ensure that Australia's list of protected species remains consistent with international commitments and the requirements of CITES, specifically by including the Antilles pinktoe tarantula (Caribena versicolor) in Appendix III of the Convention. This amendment, which has little practical impact on Australia as the species is not native to the country and cannot be legally imported, aligns with Australia's commitment to international cooperation in wildlife conservation. The instrument was enacted to facilitate compliance with Australia’s obligations under the Convention and to maintain the integrity of the national list of protected species.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to individuals, entities, and industries involved in activities that may impact the environment and wildlife within Australia. This includes all species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as specified in Appendices I, II, and III of the Convention. The Act extends to the entire Commonwealth of Australia, ensuring that environmental protection measures are uniformly applied across the nation. The Act allows for amendments to the list of species through legislative instruments, ensuring the list remains current with international obligations. Notably, the Act does not apply to species not listed in the Convention's Appendices or those not subject to Australia's wildlife import regulations. The legislative instrument for the 2022 update to the List of CITES Species ensures that the Act's requirements are aligned with international commitments, including the addition of the Antilles pinktoe tarantula to Appendix III, effective from 11 January 2023.
Key Provisions
The main operative sections of the F2022L01762 instrument concern the updating of the List of CITES Species under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Specifically, section 303CA(1) mandates the Minister to establish a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Section 303CA(3) requires this list to include all species from time to time included in Appendices I, II, and III of the Convention. Additionally, section 303CA(9)(b) and (c) allow the Minister to amend the list as necessary to include all species required by subsection 303CA(3) and to ensure that the notations in the list are consistent with the Convention. The current instrument amends the list to include the Antilles pinktoe tarantula (Caribena versicolor) in Appendix III, following a request by the European Union.
The Act imposes certain obligations and requirements on parties and entities governed by it. The Minister for the Environment is required to establish and maintain the list of CITES species in accordance with Australia’s international commitments under the Convention. This includes ensuring the list is updated to reflect any changes to the Appendices of the Convention. The legislative instrument specifies that the list must include all species identified in Appendices I, II, and III of the Convention, which are subject to varying levels of trade regulation to ensure their survival. The Act also mandates that Australia, as a party to the Convention, must implement the listed species in its domestic legislation, which is achieved through the updates to the List of CITES Species.
Breaching the obligations set out in the Act may result in civil or criminal penalties. While specific penalties for non-compliance with the CITES listing requirements are not detailed in the explanatory statement, general penalties under the Act can include substantial fines and, in severe cases, imprisonment. For instance, under section 487, a person who commits an offence against the Act can be subject to penalties that include fines of up to $222,200 for individuals and up to $1,111,100 for corporations. Additionally, under section 488, a person who causes or authorises a contravention of the Act can also be liable for the same penalties. These provisions underscore the importance of adhering to the Act’s requirements to protect endangered species and maintain international compliance.