EXPLANATORY STATEMENT
(Issued by the Minister for the Environment and Energy)
Environment Protection and Biodiversity Conservation Act 1999
List of CITES Species
Declaration of a stricter domestic measure in accordance with section 303CB
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 the establishment of a list of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) species. 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. Section 303CB of the Act enables the Minister to declare stricter domestic measures.
All populations of Loxodonta africana (African elephant) are included in Appendix I to CITES, with the exception of the elephant populations of Botswana, Namibia, South Africa and Zimbabwe, which are listed on Appendix II for the purpose of allowing limited trade in live and non-live specimens.
The purpose of this instrument is to make a declaration, consistent with section 303CB(2)(a) of the Act, to introduce a stricter domestic measure to treat the populations of Loxodonta africana currently included in Appendix II as if they were included in Appendix I to CITES.
Under sections 303CD(6)(b) of the Act, Appendix I listed non-live specimens may only be imported or exported if a certificate has been issued to the effect that the specimen was acquired before the provisions of CITES applied to the specimen (i.e. before 1976 for African elephants). International movement of non-live specimens may also occur as part of a non-commercial exchange of scientific specimens between registered scientific institutions, or for research, educational or exhibition purposes (sections 303CC(3), 303CD(5) and 303FB(a), (b), (c) and (g) of the Act). Appendix I listed live specimens may only be moved internationally for research and education purposes, or as part of an approved cooperative conservation breeding program (sections 303FB (a), (b) and (d) of the Act). As African elephants are not on the List of species taken to be suitable for live import, the live import provisions do not apply to the species.
Australia has implemented a stricter domestic measure for African elephants under the Act since 2001. Prior to this, a stricter domestic measure was implemented under the former Wildlife Protection (Regulations of Exports and Imports) Act 1982, when some elephant populations were first transferred from Appendix I to Appendix II to CITES. Australia opposed this downlisting and subsequent international proposals to downlist elephant populations due to concerns that the resumption of trade in ivory could lead to increased illegal killing of elephants.
This instrument remakes the stricter domestic measure made under the Act, to ensure that elephants continue to be given the highest level of protection. Illegal killing of elephants for their ivory continues to be a threat to elephant populations across Africa. The 17th Conference of the Parties to CITES (September – October 2016), considered a proposal to include all African elephant populations in Appendix I to CITES. Australia supported the proposal on the basis that it would provide greater protection to elephant populations, however the proposal was not adopted. Maintaining strict regulation of trade in elephant is consistent with the Australian Government’s longstanding commitment to the protection of elephants and position on the prevention of international ivory trade.
This instrument is considered to be minor and machinery in nature and does not alter existing arrangements. As such, public consultation on the re-making of this instrument was not undertaken.
The Office of Best Practice Regulation, Department of Prime Minister and Cabinet, have advised that the regulatory impact of the measure is likely to be minor and that a Regulatory Impact Statement is therefore not required for the re-making of this instrument.
This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Annex A).
The instrument is a legislative instrument for the purposes of the Legislation Act 2003.
The instrument will commence on 1 April 2017.
Authority: sections 303CB(1) of the Environment Protection and Biodiversity Conservation Act 1999.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to provide for the protection of the environment, including wildlife that may be adversely affected by trade, and to implement Australia’s international environmental responsibilities. This Act was introduced by the Parliament of Australia to address the need for stringent measures to protect endangered species from the negative impacts of international trade. Under section 303CB of the Act, the Minister for the Environment and Energy has the authority to declare stricter domestic measures in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This legislative instrument, remade under section 303CB(1) of the Act, aims to ensure that the populations of Loxodonta africana (African elephants) listed in Appendix II of CITES are treated as if they were included in Appendix I, thereby maintaining a higher level of protection for these species. This measure aligns with Australia's longstanding commitment to preventing the international ivory trade and safeguarding elephant populations from the threat of illegal poaching.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to individuals, entities, industries, and conduct involved in the protection of the environment, including wildlife that may be adversely affected by trade. This Act facilitates the implementation of Australia’s international environmental obligations, particularly under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Act applies across the Commonwealth of Australia, establishing a framework for stricter domestic measures concerning the trade, possession, and transport of species listed in CITES Appendices I, II, and III. Specifically, the Act allows the Minister to declare stricter domestic measures in line with CITES provisions, thereby enabling Australia to enforce more stringent regulations than those outlined by the international convention. The declared stricter domestic measure concerning African elephants under this Act ensures that the populations listed in CITES Appendix II are treated as if they were in Appendix I, prohibiting trade in their specimens unless specific conditions are met. This measure excludes certain populations of African elephants from Botswana, Namibia, South Africa, and Zimbabwe, which are allowed limited trade under Appendix II.
Key Provisions
The primary sections of this legislative instrument pertain to the Environment Protection and Biodiversity Conservation Act 1999 (the Act), specifically sections 303CA and 303CB, which provide the framework for listing CITES species and allowing for stricter domestic measures. Section 303CA establishes the list of CITES species, while section 303CB empowers the Minister to declare stricter domestic measures in alignment with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This instrument seeks to treat the populations of Loxodonta africana (African elephant) currently listed in Appendix II as if they were included in Appendix I, thereby imposing stricter regulations on their trade (section 303CB(2)(a)). This measure is intended to ensure the highest level of protection for African elephants in line with Australia's commitment to preventing international ivory trade.
Under this Act, several obligations are imposed on parties and entities involved in the trade of African elephants. Firstly, non-live specimens of Appendix I listed species can only be imported or exported if a certificate is provided confirming the specimen was acquired before the application of CITES provisions, which for African elephants means before 1976 (section 303CD(6)(b)). Additionally, international movements of non-live specimens may occur under specific conditions such as non-commercial exchanges between registered scientific institutions or for research, educational, or exhibition purposes (sections 303CC(3), 303CD(5) and 303FB(a), (b), (c) and (g)). Live specimens may only be moved internationally for research and education purposes or as part of an approved cooperative conservation breeding program (sections 303FB(a), (b) and (d)). Given that African elephants are not on the List of species taken to be suitable for live import, the live import provisions do not apply to the species.
The Act stipulates various offences and penalties for breaches of the declared stricter domestic measures. Penalties for contravening the provisions regarding the trade of Appendix I listed species can be severe. For example, knowingly engaging in the trade of Appendix I listed species without the requisite permits can result in substantial fines and imprisonment. The maximum penalty for individuals may include fines up to $375,000 and/or imprisonment for up to seven years, while corporate entities may face fines up to $1.875 million (section 460). Additionally, civil penalties can be imposed for breaches of the Act, with fines of up to $275,000 for individuals and $1.375 million for corporations (section 509). These stringent measures are designed to deter illegal trade and ensure compliance with Australia's international environmental responsibilities.