Assessing applications for return under Part 13A of the Environment Protection and Biodiversity Conservation Act 1999
Global trade in wildlife is diverse, ranging from live animals and plants to a vast array of wildlife products derived from them (including medicines, leather goods, tourist souvenirs, coral, shells, timber, wooden musical instruments and food products).
Illegal wildlife trafficking is one of the four largest illicit economies in the world behind narcotics, counterfeiting and human trafficking. Together with other factors such as habitat loss, exploitation of some wildlife species through illegal trade is capable of heavily depleting populations and bringing some species close to extinction. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement between governments which aims to ensure that international trade in wild animals and plants does not threaten their survival.
Australia is a party to CITES. The Department of the Environment and Energy (the Department) has primary responsibility for the implementation of Australia’s requirements for international movement of regulated natives and species listed under CITES. These requirements are given effect through part 13A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Part 13A of the EPBC Act specifies that it is an offence to export or import a CITES or other regulated Australian native specimens unless:
- the exporter and/or importer hold appropriate documentation, such as import and export permits; or
- an exemption applies.
The maximum penalty for wildlife trade offences under the EPBC Act is 10 years imprisonment and $210,000 for individuals ($1,050,000 for corporations).
Section 444A of the EPBC Act provides the power to authorised officers to seize a wildlife specimen if there is reasonable grounds to suspect that the specimen has been used in or otherwise involved in the commission of an offence against Part 13A of the EPBC Act.
This power is most frequently exercised by Australian Border Force (ABF) officers at Australia’s international entry and exit ports including international mail centres.
Section 444B of the EPBC Act requires an authorised officer to give the owner of the specimen, or the person who had possession of the specimen before it was seized, a written notice. This notice must identify the specimen and outline the powers under which it was seized with reference to section 444A of the EPBC Act. This notice sets out the terms for which the owner can apply for the release of the seized specimens.
Section 444C and section 444D of the EPBC Act provide provision to owners of seized specimens to submit an application for their return. Section 444C outlines that an application must be made on the grounds that the specimen was not used or otherwise involved in the commission of an offence. Section 444D provides the mechanism for the owner of a seized specimen to initiate action against the Commonwealth in a court of law on the grounds that the specimen was not used or otherwise involved in the commission of an offence.
This document guides officers from the Department in making decisions under section 444C of the EPBC Act. The guidelines are to be utilised when assessing the return of a seized specimen suspected of contravening Part 13A of the EPBC Act.
Specimens are seized if they are suspected of contravening Australia’s wildlife trade laws. The most common reasons that specimens are seized upon entry into Australia include:
- The specimen is, or suspected to be derived from, a CITES or other regulated species and was not accompanied by a valid export and import permit.
- The specimen is pre-CITES but was not accompanied by a pre-CITES certificate issued by the CITES management authority of the exporting country.
- The specimen was not accompanied by documentation clearly stating the scientific name of the species from which it was derived, and therefore an authorised officer has been unable to determine if the specimen is a CITES or other regulated species.
Under Section 444C of the EPBC Act, the owner of a seized specimen may make an application to the Department for return of the specimen. Applications for return of seized specimens must be made to the Department within 30 days of the date of seizure. The EPBC Act specifies that an application must be made on the grounds that the specimen was not used or otherwise involved in the commission of an offence against Part 13A. An application for release will be granted if the applicant can demonstrate no offence has taken place. This may include:
- The specimen is not subject to Part 13A of the EPBC Act (i.e. the specimen is not, and is not derived from, a CITES or other regulated species); or
- The specimen was imported and exported in compliance with a permit issued under Part 13A of the EPBC Act; or
- The specimen was imported and exported in compliance with a pre-CITES certificate or CITES personal effects exemption; or
- The specimen was part of a registered, non-commercial scientific exchange program and was imported or exported in compliance with the requirements of that program.
In a limited range of circumstances the Department may also consider the release of a seized specimen either unconditionally or with prescribed conditions if an application for its release is submitted and the applicant can demonstrate extenuating circumstances.
In considering release of specimens for extenuating circumstances, officers will assess applications in line with the guiding principles of the Department’s regulatory framework. The framework proposes a risk based approach to assessment that recognises positive behaviour and mediates enforcement effort in proportion to both environmental and behavioural risk.
- With regards to environmental risk the applicant must be able to demonstrate that the risk of environmental harm from trade in their specimen is low. This should be determined by the provision of suitable written evidence outlining the origins of the specimen and its regulated status.
- With regards to behavioural risk the applicant must be able to demonstrate satisfactory evidence for one of the following:
- The intent to comply with Australia’s wildlife trade requirements. The applicant must show evidence of the intent to be informed of the law and steps to achieve compliance in a reasonable time prior to the trade occurring.
- A circumstance in which it was impossible for the applicant to predict the need to inform themselves of Australia’s wildlife trade requirements prior to the trade occurring. This could include instances where the applicant was sent the specimen as a gift and evidence that they were unaware that the transaction would occur.
A specimen may be forfeited to the Commonwealth if the owner cannot demonstrate extenuating circumstances or that the specimen was not used or otherwise involved in the commission of an offence.
Section 449 of the EPBC Act allows for the immediate disposal of a seized specimen. Disposal may entail destruction or, in the case of a live animal, euthanasia. A seized specimen will be disposed of if it is believed that it is reasonably likely that the specimen would:
- constitute a serious threat to the environment; or
- constitute a serious threat to the continued existence, in the wild, or a particular species of an animal or plant; or
- result in the introduction of an alien species that represents a threat to an ecosystem, habitats or other species; or
- constitute a danger to public health; or
- in the case of a live specimen – constitute a significant threat to the health of the specimen; or
- in the case of a live animal – result in the animal suffering.