6.4 - Wildlife trade and permitting
6.4.1 - Wildlife trade and permitting requirements do not align with Australia’s international obligations, are inflexible and unnecessarily burdensome
The take, trade and movement of wildlife products (including live animals, plants and products) are regulated under Parts 13 and 13A of the EPBC Act. Part 13 includes permits to take, injure or kill listed species or ecological communities in Commonwealth areas, including in Commonwealth waters. Part 13A is dedicated solely to the international movement of wildlife specimens and gives effect to Australia’s obligations as a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on the Conservation of Migratory Species (Bonn Convention).
The requirements of the EPBC Act go beyond Australia’s obligations under these international conventions in some instances and in others do not go far enough to enable obligations to be fulfilled. For example, the Bonn Convention states only species listed under Appendix I need be afforded protected status (Box 23). However, the EPBC Act requires that any species listed under either of the Appendixes to the Convention be included as a listed migratory species under the Act, which affords Appendix II listed species higher protection status under the Act.
Box 23 - The Bonn Convention
The Convention on the Conservation of Migratory Species (Bonn Convention) provides a global platform for the conservation and sustainable use of migratory animals and their habitats.
Under the Convention, only species listed under Appendix I need be afforded protected status. For species listed under Appendix II, the Convention encourages range states to enter into regional or global agreements to improve these species’ conservation status.
Currently the EPBC Act requires any species listed under either of the Appendices to the Convention to be included as a listed migratory species under the Act, making it an offence to catch, kill, injure, take or move the species in Commonwealth waters without a permit issued under Part 13.
Listing is automatic and occurs without regard to the species’ conservation status in Australia. For example, for some species included under Appendix II of the Convention, the Australian population is distinct from the global one and is sustainably harvested within Australia. Automatic inclusion under the provisions of the EPBC Act affords such species greater protection than is required under the Convention and is counter to the Convention’s intent.
Additionally, the EPBC Act requires import permits to be issued for Appendix II CITES listed species, even though the exporting country has already conducted a sustainability assessment. This results in around 2,000 additional permits being issued each year, leading to costs to individuals, companies and government, but no appreciable conservation benefit.
CITES stipulates that live animals must be transported in a humane manner (Articles III, IV and V and Resolution Conf. 10.21 (Rev. CoP16) on Transport of live specimens (CITES n.d.)), and this is reflected in the objects of Part 13A of the EPBC Act and specific requirements in the Act and EPBC Regulations. However, the current Regulations do not apply these requirements to live fish or live invertebrates. This omission in the Regulations risks live fish or live invertebrates being seized by an importing country should they be transported in a way that does not meet welfare requirements of CITES.
Australia’s obligations under CITES do not extend to applying welfare considerations to native, non-CITES-listed fish and invertebrates. Welfare considerations are largely the responsibility of State and Territory legislation covering the prevention of cruelty to animals and through model codes of practice for the welfare of animals, although these codes are not primarily developed for native species.
There is the potential for the domestic implementation of wildlife trade regulation to be inconsistent with CITES obligations as it relates to the possession of and trade in CITES-listed species within Australia (for example, ivory products). This arises because States and Territories are responsible for the laws that control the domestic movement of these products within their jurisdiction.
The settings for permitting wildlife trade are inefficient and unnecessarily prescriptive, which results in complexity and increased regulatory burden. Regulatory effort is often not aligned in a way that is proportionate to risk and conservation benefit.
The movement of personal and household effects is overregulated. Australia requires permits for personal low-risk trade items, such as tourist souvenirs, which exceeds CITES requirements. Prescription in these parts of the EPBC Act prevents flexibility and discretion, where this is warranted. Other examples include the narrow focus of what is permitted to be considered as a household pet, cumbersome permitting requirements for the transport of musical instruments, specimens exempt through CITES guidance and outdated publication gazettal requirements.
Wildlife trade operation declarations (approvals) are restricted to 3 years or less. This leads to issues for both the proponent and the Commonwealth because applications must be assessed ahead of declarations expiring to enable business continuity. If declarations expire, the proponent can no longer export their commodity overseas – which impacts trade (for example, for commercial fisheries). The arrangements result in regulatory burden because operations must be re-assessed every 2 to 3 years.
Compliance breaches cannot be enforced in a proportionate manner. For example, the Environment Minister must revoke an approval if a condition of a wildlife trade operation is not met, potentially resulting in businesses being shut down for months even for minor breaches.
Under the EPBC Act and EPBC Regulations, there are instances where wildlife trade permitting may be open to abuse by applicants. For example, the Act and Regulations fail to clearly define what is meant by the exhibition/travelling exhibition categories, including for what is considered a zoo. There is the potential for profit-making private zoos or entities that exhibit (even for a short period) to import, export, and breed from, live animals with limited capacity for ongoing checks of facilities to ensure adherence to permitting requirements.
Furthermore, the EPBC Regulations already require the Environment Minister to consider whether the operator of a program has been convicted of an offence or is subject to proceedings for an offence for environmental/wildlife crime in the last 10 years before approving a program. This test though only applies to Australian citizens and specific programs, including approved captive breeding programs, CITES-registered captive breeding programs (Australian-based), approved artificial propagation programs and approved aquaculture programs. This test does not apply more broadly outside of these current programs, such as to overseas applicants and recipients of specimens exported from Australia.
6.4.2 - Reform recommendations – Aligning with international obligations and improving the efficiency of wildlife permits and trade
The Review recommends reforms to wildlife trade permitting arrangements to align the EPBC Act with Australia’s international obligations under the Bonn Convention and CITES.
The EPBC Act should be amended to align with Australia's international obligations arising from Appendix I and II of the Bonn Convention. The take of species listed in Appendix II should be allowed, subject to all management arrangements demonstrating take would not be detrimental to the survival of the species.
Similarly, the Act should remove the requirement for permits to be issued for the import of Appendix II CITES-listed species where the exporting country has already conducted a sustainability assessment.
The EPBC Regulations on the transport of live CITES-listed specimens should be amended to ensure the humane transport of CITES-listed live fish and live invertebrates, consistent with the objects of Part 13A of the EPBC Act and the requirements of CITES. The Department has made a policy decision to include a condition on CITES import and export permits for live specimens, which states that the permit holder must prepare and transport the animal(s) in a way that is known to minimise stress, risk of injury and adverse effects on the health of the animal(s). This condition should be formally incorporated into the EPBC Regulations. The condition should apply to the transport of all live specimens (that is, all fish and invertebrates) for which permits are required.
Domestically, the Commonwealth should ensure that members of the public are aware of their obligations to acquire permits for international trade and demonstrate legal acquisition and possession of CITES specimens (such as ivory) within Australia. Since States and Territories have responsibilities for the domestic trade within Australian jurisdictions, they should use their laws to control domestic trade of CITES specimens.
Recommended amendments to Part 13A, Divisions 2 and 5 of the Act (and associated regulations and definitions) to improve the flexibility and efficiency in permitting decisions include those to:
- broaden the scope of EPBC Act permitting exemptions for low-risk personal trade items such a tourist souvenirs to reduce the need for travellers to carry permits
- align purpose-of-trade codes and permit requirements for the export and import of CITES specimens for an improved client experience
- broaden the scope of regulated species that can be exported as bona fide household pets, where doing so would have no conservation impact
- introduce musical instrument passports and accept overseas musical instrument passports for import and export, for improved client experience
- remove regulation for specimens exempt through CITES guidance – for example, faeces, urine and ambergris (whale ‘vomit’).
- remove the explicit requirement for wildlife trade decisions to be published as an instrument in the gazette (for example, decisions relating to fisheries activities) and/or align publication requirements with EPBC Act development referrals and approvals
- provide provisions in the Act to enable penalties for compliance breaches to be proportionate to the breach.
The EPBC Act and EPBC Regulations should be amended to tighten the definitions for the non-commercial categories of exhibition and travelling exhibition. Tighter definitions of what is classified as a zoo and more clarity on what falls under the definition of exhibition and travelling exhibition for imports and exports is required to ensure applicants have clear advice on what can be approved under these categories. The definitions should be included in the Act and Regulations for clarity and transparency. The Government should also fully examine the circumstances under which a fit-and-proper-person test can be applied and enforced more broadly to wildlife permitting approvals under the Act. This should include the circumstances in which an Australian exporter would be required to certify that the intended recipient(s) of the wildlife satisfy the fit-and-proper-person test.
Once changes are made to improve the efficiency and effectiveness of wildlife permitting and trade functions under the current construct of the EPBC Act, the effectiveness of wildlife trade protection and management should also be further improved through the development of a National Environmental Standard for wildlife permits and trade (Chapter 1). This would allow other regulators to be accredited, which would streamline the regulation of wildlife trade.
Amend the EPBC Act to ensure wildlife permitting requirements align with Australia’s international obligations related to:
- species listed under Appendix I and II of the Convention on the Conservation of Migratory Species (Bonn Convention)
- import permitting requirements for Appendix II listed species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
- requirements to ensure the humane transport of live fish and live invertebrates.
Amend Part 13A Division 2 and 5 of the EPBC Act, EPBC Regulations and associated definitions to streamline and reduce regulatory burden on wildlife trade permitting processes and to enable proportionate compliance and enforcement responses.
Reduce instances under the EPBC Act and EPBC Regulations where wildlife trade permitting may be subject to abuse by applicants.
- Tighten the definitions for the non-commercial categories of exhibition and travelling exhibition, including what can be classified as a zoo.
- Apply a fit-and-proper-person test as broadly as possible to wildlife permitting approvals under the Act.