Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim reporthttp://www.environment.gov.au/epbc/review/publications/interim-report.html

Chapter 18: Wildlife Trade, Live Imports and Biosecurity

Key points In February 2008, an independent review of Australia’s quarantine and biosecurity arrangements was

announced. The review was completed in December 2008 and included a key recommendation for the development of a new Biosecurity Act.

The development of a new Biosecurity Act is likely to change the current environmental biosecurity functions under the EPBC Act, which primarily include the live import functions and related post-border management.

Some submissions suggested that the current approach to invasive species control through biosecurity did not adequately address all phases of the biosecurity continuum, particularly post-border.

Submissions suggested stronger focus was required in preventing the introduction of invasive species. The management of genetically modified organisms in the environment was also an issue raised.

There were no major concerns about Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) controls other than the potential for streamlining and efficiencies.

Some submissions expressed concern with the regulatory approach to native wildlife trade.

Live import listing

Current provisions of the Act18.1 Part 13A of the EPBC Act regulates the import of live specimens.1 All species allowed for import into

Australia are included on the list of specimens suitable for live import (the live import list).2 Species not identified on this list cannot be legally imported into Australia.

18.2 The live import list consists of two parts:

Part 1 contains species that can be brought into Australia without an EPBC Act live import permit.

Part 2 contains species that require an EPBC Act live import permit before import into Australia. Conditions may be attached to the permit.

18.3 Any person or institution can apply to the Environment Minister to amend the live import list to include a new species for either commercial or non-commercial purposes. To amend the live import list to include an item, a risk assessment report is prepared according to agreed Terms of Reference to assess the potential impact that import of a species may have on the Australian environment. The Environment Minister may make a decision about amending the live import list based on consultation with relevant Commonwealth and State/Territory Ministers, the risk assessment report and outcomes of public consultation.

18.4 It is important to note that some things can only be brought into Australia under certain conditions following quarantine risk assessment and under quarantine control separate to EPBC Act live import controls.

Key points raised in public submissions18.5 Some submissions argued that the process for listing species suitable for live import could be refined

and simplified, suggesting that there were issues surrounding independence, transparency and conflicts of interest. It was also contended that the process focused on the addition of species to the lists. Mechanisms for reviewing the list to remove species from the list where appropriate were suggested.3

18.6 Submissions explored the scope to combine the EPBC Act live import list and the Biosecurity Australia import list processes with identified sequential decision points for the different needs of each list. It was also suggested that the review liaise with the National Environment Biosecurity Committee to examine whether the EPBC Act could provide an appropriate framework for biosecurity regulation in the environment sector.

1 The Australian Quarantine and Inspection Service currently administer the import of new species of live plants under provisions of the EPBC Act.

2 The live import list is available at http://www.environment.gov.au/biodiversity/trade-use/lists/import/index.html.3 Submission 081: Ms Catherine Cheung.

18.7 Some submissions argued that there is a need for improved co-operation and co-ordination between the Commonwealth and State and Territory agencies in assessment and decision-making processes for the import of live plants and animals. The Government of Western Australia stated that as:

post-border management is generally the responsibility of States and Territories, the concerns of jurisdictions need to be adequately addressed during DEWHA’s assessment of applications.4

18.8 The Government of Western Australia also noted that, once a taxon of fauna has been approved for import for a specific purpose, it is listed on the live import list and subsequent applications for other purposes may then be more readily approved.5 One-off special approvals should not result in the amendment of the live import list unless the assessment is based on broader case scenarios.

18.9 It was also recommended that the Act be amended to ban the importation of any fertile hybrid animals, for example by adjusting the live import list to make it illegal to import any hybrids of the listed species.6 It was further suggested that the importation of all hybrids be subject to a mandatory pest risk assessment.

18.10 It was noted that the ban on the importation of the savannah cat only occurred due to a public outcry as a result of breeders beginning to advertise kittens for sale. The suggested that breeders will have learnt from the savannah cat experience and will not advertise ahead of getting animals (legally) into the country.7 As a result of this, further proactive measures will be needed.

18.11 It was argued that the potential threat posed by exotic birds from avicultural stock should be discounted in a risk assessment by taking account of their long presence in Australia with no harmful effects.8

18.12 It was also noted that rules for import of exotics appear to differ markedly among species groups. For example, live fish are brought into Australia almost daily for the aquarium trade with very few restrictions. It was therefore suggested that a more consistent and accommodating approach is needed.

Precautionary approach18.13 Some submissions argued that a more precautionary approach to the live import list should be adopted

where only species that have proven to be harmless to biodiversity are allowed on the list.

18.14 However it was also suggested by one submitter that the precautionary principle is used selectively for political rather than scientific reasons, influenced by environmental lobby groups who are not required to produce evidence to support their claims.9 The Hazardous Substances and New Organisms Act (New Zealand) was raised as an exemplary model for the import of live organisms which takes a precautionary approach to the decision-making process.10

Discussion of key points18.15 A majority of submissions suggested that the live import listing process should be refined and

simplified. Other submissions suggested that there is scope to combine the EPBC Act live import list and the Biosecurity Australia import list processes.

18.16 The Australian Government’s implementation of the Beale Review’s recommendations (discussed later in this Chapter) provides an opportunity to integrate all biosecurity considerations into a national biosecurity approach under the one Authority. This provides an opportunity to embed environmental considerations as equal to those of human health and primary production in all stages of Australia’s approach to managing biosecurity, that is, pre-border, at-border and post-border. Shifting biosecurity arrangements under the one Authority should also improve co-operation and coordination between the Commonwealth and State and Territory agencies in assessment and decision-making processes for the import of live plants and animals.

18.17 Subject to environmental biosecurity being given equal priority alongside human health, economic (such as primary production) and social considerations, it is the preliminary view of this review that the live import functions currently under the EPBC Act should shift to the new Biosecurity Authority. However this should only occur if the new legislation clearly requires environmental considerations to

4 Submission 201: Government of Western Australia, p.17.5 Submission 201: Government of Western Australia.6 Submission 046: Invasive Animals Cooperative Research Centre.7 Submission 046: Invasive Animals Cooperative Research Centre.8 Submission 108: National Finch and Softbill Association.9 Submission 185: Practical Hydroponics and Greenhouses Magazine.10 Submission 185: Practical Hydroponics and Greenhouses Magazine.

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be taken into account when making live import decisions. This is discussed further at 18.5.3 of this chapter.

18.18 While noting that the Government’s intention is to develop new Biosecurity legislation to replace the Quarantine Act 1908, there are, however, a range of clarifications and useful improvements that could be made to the current live import provisions and these should be developed and considered in any new legislation.

CITES

Current provisions of the Act18.19 Australia is party to CITES.11 under the terms of this Convention, each Party controls the import and

export of an agreed list of species that are endangered, or at risk of becoming endangered, due to inadequate controls over trade in them or their products.

18.20 All trade of species covered by CITES has to be authorised through a licensing system.12 Each Party to CITES must designate one or more Management Authorities in charge of administering that licensing system and one or more Scientific Authorities to advise them on the effects of trade on the status of the species. The Environment Minister is the Management Authority and the Secretary of the Department is the Scientific Authority for Australia.13 Part 13A of the EPBC Act implements Australia’s obligations under CITES through regulating the trade of CITES species.

Key points raised in public submissions18.21 It was noted in most submissions that Australia has been one of the most active participants in CITES

and that, on the whole, the mechanisms under the EPBC Act are working well.14 However there were some suggestions for possible administrative improvements that could be made. For example, the Australasian Regional Association for Zoological Parks and Aquaria (ARAZPA) raised concerns that the interpretation of Australian legislation requiring that an additional welfare test be applied to CITES animals was not applied to other species.15 It was argued that this interpretation is not consistent with the original intention of the legislation (which, it was argued, relates to conservation, not welfare of species) and is currently acting as an impediment to sustainability, disrupting efforts to establish sustainable global programs for CITES species.

18.22 There was a suggestion for a total ban on all online trade of any CITES Appendix I species of wildlife as well as products from subspecies listed on Appendix II or look-alike species.16 It was also argued that the personal and household effects exemption essentially legalises the importation of wildlife souvenirs from CITES-listed species and should be reviewed.17

18.23 Concerns were raised about what was argued to be an unnecessarily bureaucratic and unwieldy permitting process. It was argued that while the permitting process is supported in order to control the import and export of wildlife, in general terms overseas zoos are deterred from dealing with Australian zoos due to the amount of detailed information required under the Act which is a duplication of the work carried out by the other CITES Authority in their issuing of the respective import/export permits. ARAZPA recommended that:

the permitting requirements of the EPBC Act in relation to the international movement of wildlife, be simplified to include only the information the Australian Government needs as a CITES Authority; recognising the integrity of other CITES Authorities in the provision of their permits.18

18.24 However, the Humane Society International raised differing concerns, arguing that the information provided by some applicants was insufficient.19 As an example of this issue, the Society referred to the information used by the Department in assessing the importation of Asian Elephants in 2006. It was suggested by both the Humane Society International20 and the International Fund for Animal Welfare21

11 Further information on the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington on 3 March 1973 (CITES) is available at http://www.cites.org/

12 CITES Art.s III, IV and V.13 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.303CL.14 See e.g. Submission 042: Australasian Regional Association for Zoological Parks and Aquaria.15 Submission 042: Australasian Regional Association for Zoological Parks and Aquaria.16 Submission 179: International Fund for Animal Welfare.17 Submission 179: International Fund for Animal Welfare.18 Submission 042: Australasian Regional Association for Zoological Parks and Aquaria, p.4.19 Submission 182: Humane Society International.20 Submission 182: Humane Society International.21 Submission 179: International Fund for Animal Welfare.

that a Wildlife Trade Taskforce be established to provide advice to the Government to ensure it complies with its CITES obligations.

18.25 The Australian Network of Environmental Defender’s Offices (ANEDO) submitted that the Act does not appropriately ensure compliance with Australia’s obligations under CITES.22 It was therefore argued that Australia is currently failing to implement its obligations under the CITES agreement to regulate the flow of endangered species across national borders.

Discussion of key points18.26 As the CITES obligations implemented under the EPBC Act relate solely to biodiversity protection

issues rather than biosecurity per se, CITES provisions should continue under the EPBC Act rather than transferring to the new Biosecurity Authority. However, operational efficiencies of the regulation of live CITES plant and animal specimens, including enforcement provisions, would need to be determined prior to the new biosecurity arrangements coming into place. It would be important for the Government to consider administrative efficiencies and working relationships between the respective agencies responsible for live import and CITES regulation.

Welfare18.27 Legislative responsibility for animal welfare within Australia rests primarily with State and Territory

governments; however, one of the objects of Part 13A of the Act is to promote the humane treatment of wildlife.23 This provision was specifically included in the Act due to concerns that it was not adequately addressed in previous legislation. It should be noted that the welfare provisions are not restricted to CITES species, but apply also to native non-CITES animal specimens regulated under Part 13A. Animal welfare considerations are taken into account in the transfer of live mammals, birds, reptiles and amphibians under the EPBC Regulations, which specify requirements for shipments of live animals and for the person receiving the animals to be suitably equipped to manage, house appropriately and care for them.24 The EPBC Regulations also specifies welfare provisions for animals that are killed to be done so in a humane manner.

18.28 Australia has been actively engaged in the establishment of national benchmarks for animal welfare and should continue to promote these Australian standards in relevant international forums and organisations.

18.29 The Australian Animal Welfare Strategy (the Strategy) has been developed to provide both national and international communities with an appreciation of animal welfare arrangements in Australia.25 It also outlines the future direction and improvements to animal welfare in Australia and highlights the need for domestic and international benchmarking of animal welfare outcomes as currently being discussed by the World Organisation for Animal Health.26

18.30 The strategy was developed over five years by the Australian Government with assistance from the National Consultative Committee on Animal Welfare, in consultation with State and Territory governments, animal industry organisations, animal welfare groups and the general public. It builds on existing animal welfare arrangements in Australia and recognises the intimate connection that exists between animal welfare, animal health and production. The Strategy provides for greater harmony and consistency across jurisdictions.

18.31 ARAZPA strongly supports the Strategy and the need for National Standards and Guidelines for the Exhibition of Animals, which are currently being developed as part of the Strategy.27 ARAZPA believes that any welfare tests applied by the Government should be applied consistently on an ongoing basis and according to the needs of the species. under the Strategy, the Primary Industries Ministerial Council assumes responsibility to monitor, review and report implementation progress.28 This will be an opportune time to review whether welfare tests are applied consistently and according to the needs of the species.

18.32 In regards to the welfare of animals overseas, making a stricter domestic measure declaration (similar to cetaceans and elephants) would provide increased control for those countries which may have significantly lower animal welfare standards. However this approach may have some negative impacts including:

22 Submission 189: The Australian Network of Environmental Defender’s Offices.23 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.303BA (1)(e).24 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) 9A.05.25 Further information on the Australian Animal Welfare Strategy is available at: http://www.daff.gov.au/animal-plant-health/welfare/aaws26 The World Organisation for Animal Health is currently developing scientifically-based animal welfare standards.27 Submission 042: Australasian Regional Association for Zoological Parks and Aquaria.28 DAFF, Australian Animal Welfare Strategy (2008) http://www.daff.gov.au/animal-plant-health/welfare/aaws a 23 June 2009, p. 13.

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zoos would need to approve co-operative conservation programs for CITES species, which would create additional work with doubtful conservation benefit for zoos; and

legitimate commercial research and diagnostic testing is currently being undertaken, which could not happen if a declaration was made.

18.33 Currently there is no requirement for animal welfare to be considered when approving a commercial import program. The requirements for a commercial import program are included in the EPBC Regulations.29 The wildlife import/export provisions of the Act already appear excessively prescriptive. Any changes would need to be well identified on a cost-benefit basis before they are progressed.

Permitting process18.34 Generally, submissions were supportive of the permitting process under Part 13A of the EPBC Act,

particularly in relation to CITES species.30 For example, ARAZPA ‘fully supports the need for a permitting system to control the import and export of wildlife.’31

18.35 However Part 13A has also been the subject of criticism. In a recent article Professor Margaret Allars wrote:

the sheer detail of the statutory scheme, combined with a drafting technique of conditioning the Minister’s power to grant permits on satisfaction of multiple requirements, creates an overwhelming impression of a regime of regulatory rigour. … in the case of Pt 13A, the appearance of strict regulation belies the reality. An importer of an animal which is protected under CITES may readily steer through the provisions of Pt 13A, breach the prohibitions which appear to apply to some kinds of activities affecting endangered species and, within six months of importing the animal, proceed entirely free of any constraints pursuant to the EPBC Act.32

18.36 As noted in Professor Allars’ article, the 2006 amendments to the EPBC Act introduced provisions to allow conditions of permits to continue to apply after the life of the permit (for example, a permit may remain in force until each period for which one or more conditions of the permit are expressed to apply). Therefore permits may include conditions that exceed six months and could apply beyond that timeframe.

18.37 The quote from Professor Allars’ article raises two issues: the degree of compliance and monitoring of permit conditions; and the proper role for the Commonwealth with respect to the long term welfare of animals imported into Australia. As with elsewhere in the Act, effective monitoring and compliance is essential.

18.38 Currently the long term welfare and management of species is primarily the responsibility of State and Territory agencies. There may be an opportunity to examine the role of the Commonwealth particularly in regards to the welfare of species imported under the Act.

18.39 As outlined above, all trade of species covered by CITES has to be authorised through a licensing system under the Convention. As party to CITES, Australia must regulate the import and export of CITES species through permits. The issue is not whether the permitting process should exist, but whether the process can be improved while still meeting international obligations.

18.40 Part 13A of the EPBC Act sets up a system for permitting the international movement of CITES wildlife specimens, which may include live import of specimens:

import permits are required for live CITES specimens listed on Part 2 of the live import list (and other regulated live specimens listed on Part 2).

commercial export trade in specimens derived from regulated native species, CITES listed species, or the import of regulated live plants and animals for commercial purposes may be allowed provided the specimens have been derived from an approved program (for example, an approved wildlife trade management plan).

the import and export of CITES Appendix I listed specimens to zoos or wildlife parks must be for the purpose of conservation breeding. Section 303FF of the EPBC Act states that a conservation breeding permit cannot be issued unless the animal is going into an approved co-operative conservation program for that species.

18.41 Section 303CH of the Act specifies conditions relating to the export or import of CITES specimens for commercial purposes. For example, a CITES Appendix II specimen may only be exported from

29 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) 9A.21.30 Part 13A also regulates export of Australian native species, other than those listed on the List of Exempt Native Specimens.31 Submission 042: Australasian Regional Association for Zoological Parks and Aquaria.32 Margaret Allars ‘To breed or exhibit?: The Asian Elephants case and reasons for regulatory failure’ (2007) 24 Environmental and

Planning Law Journal, pp.329-30.

Australia if it was derived from an approved captive breeding program, artificial propagation program, cultivation program, wildlife trade operation or wildlife trade management plan. These are the measures by which Australia ensures that trade is not detrimental to the survival of these species.

18.42 In the interest of more efficient Commonwealth regulation, it may be worth investigating whether the focus should shift from providing permits for individual exports to one focussed on assessing and ultimately accrediting harvest management arrangements. This could be done against agreed guidelines or performance benchmarks. For example, as long as trade will not be detrimental to the survival of the species, it should not matter whether the species was exported from an approved wildlife trade operation or a wildlife trade management plan. In regard to non-CITES native species, the List of Exempt Native Specimens could be amended to reflect this shift from individual trade to managing whole industries.

18.43 Suggestions for a total ban on all online trade of any CITES Appendix I species seem plausible, considering that online purchases may not be detected as readily by compliance officers. It should be noted that the Department approached the trading website Ebay in 2008 in regard to educating buyers about potential permitting requirements for wildlife trade. As a consequence, from 1 January 2009, Ebay has not permitted the sale of ivory on the site, with some exceptions.33

18.44 CITES Appendix I species can be traded under certain circumstances (for example, with a pre-CITES permit). Therefore, a total ban on all online trade of any CITES Appendix I species is beyond the intention of CITES. While it is possible to impose stricter domestic measures on particular species where warranted (such as whales and elephants), CITES has been put in place to regulate trade and it appears more appropriate to work within this system through education and the permitting process.

18.45 While Australia has been one of the most active participants in CITES and, on the whole, the mechanisms under the EPBC Act are working well, the establishment of a Wildlife Trade Taskforce to provide advice to the Government to ensure it complies with its CITES obligations may warrant further investigation. It needs to be considered whether the suggestion of a Wildlife Trade Taskforce34 will strengthen inter-agency co-operation in, and co-ordination of, regulating trade in CITES species and the enforcement of wildlife trade controls. The value of such a taskforce would need to be weighed against the Department’s current arrangements for administering CITES obligations under Part 13A. These include the Department working with the Australian Customs and Border Protection Service under formal arrangements and working in co- operation with the Australian Quarantine and Inspection Service and State and Territory wildlife agencies.

Genetically Modified Organisms (GMO)

Current provisions of the Act18.46 The Office of the Gene Technology Regulator has been established within the Australian Government

Department of Health and Ageing to provide administrative support to the Gene Technology Regulator (the Regulator) in the performance of functions under the Gene Technology Act 2000.35

18.47 The Gene Technology Act 2000 introduced a national scheme for the regulation of GMOs in Australia, in order to protect the health and safety of Australians and the Australian environment by identifying risks posed by or as a result of gene technology, and by managing those risks through regulating certain dealings with GMOs.36

18.48 Under this legislation, any ‘intentional release’ of a GMO into the environment requires a licence. Before issuing a licence, the Regulator must prepare a risk assessment and risk management plan, and seek advice on it from the Environment Minister amongst others.37 Written public submissions are also invited by the Regulator. The Department of the Environment, Water, Heritage and the Arts considers the environmental risks of GMOs and advises the Environment Minister.

Key points raised in public submissions18.49 GMOs were not widely commented on in submissions; however it was the view of some submitters

that the EPBC Act has failed to address properly the emerging issues associated with release of GMOs into the environment, especially plants. It was argued that while the Regulator is required to advise the

33 E-Bay, Animals and wildlife products policy E-bay website (2009) http://pages.ebay.com/help/policies/wildlife.html at 22 May 2009.34 Submission 179: International Fund for Animal Welfare.35 The Gene Technology Act 2000 (Cth).36 Office of the Gene Technology Regulator http://www.ogtr.gov.au/internet/ogtr/publishing.nsf/Content/home-1 at 11 May 2009.37 Gene Technology Act 2000 (Cth) Division 4.

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Environment Minister of releases of GMOs into the environment, the Minister’s powers to intervene appear unused.38 It was suggested that:

approvals by the Gene Technology Regulator of releases of genetically modified organisms into the environment, whether classified as ‘limited’ and ‘controlled’ or not, should be classified as matters of National Environmental Significance and subjected to full and proper scrutiny by the [Environment] Minister under appropriate expert advice independent from the Regulator who, after all, has a different constituency being those involved in agriculture.39

18.50 The Conservation Council (Western Australia) also suggested that actions involving the introduction of GMOs in Australia should be deemed a matter of National Environmental Significance (NES) under the Act.40

Discussion of key points18.51 As party to the Convention on Biological Diversity, Australia is required, as far as possible and as

appropriate, to:

establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biodiversity.41

18.52 While an action to release a GMO that will have, or is likely to have a significant impact on a matter protected under the EPBC Act requires approval under the Act, the key piece of legislation dealing with Australia’s international obligations regarding GMOs is the Gene Technology Act 2000. This Act requires that a comprehensive, scientifically-based risk assessment be undertaken for every application to release a GMO into the environment,42 which is also protected by corresponding State and Territory legislation.

18.53 While the Environment Minister does not have any decision-making powers, the Gene Technology Act 2000 requires that advice be sought from the Minister on all applications for the intentional release of a GMO into the Australian environment, and that this advice be taken into account. While this provision gives the Environment Minister a role in the protection of the environment from any risks associated with GMOs, assurance that environmental matters will be addressed adequately under the Gene Technology Act 2000 is dependent on the Regulator paying careful consideration to the advice provided by the Environment Minister.

18.54 In general, environmental considerations are limited to the direct effects of GMOs, such as competitive interactions, the potential for gene flow to related species and effects of modified genes on non-target species. However, developments in GMO technology may have wider ecological implications. Species that are more tolerant of elevated salt or of drought, for instance, may have characteristics that are useful or beneficial for environmental management. GMO technology may also result in land use decisions that extend the boundaries of the agricultural estate into areas that previously have not been exposed to cropping or grazing, with corresponding environmental impacts. Currently, there is no mechanism to consider landscape-scale economic, social and environmental consequences of the release of GMOs. Such considerations may be made part of bioregional planning, but there would need to be explicit links between the Office of the Gene Technology Regulator and bioregional biodiversity plans.

18.55 Noting this, given the comprehensive nature of the Gene Technology Act 2000, it is unlikely that listing GMOs as a new matter of NES under the EPBC Act would lead to beneficial outcomes and it could create unnecessary duplication and uncertainty in the community and biotechnology industry sector regarding the regulatory processes for GMOs in Australia. However, there would be merit in the Gene Technology Regulator explaining, on each occasion, how the advice of the Environment Minister has been taken into account for matters involving environmental risks from the release of GMOs in Australia.

18.56 In addition to the Environment Minister’s advisory role under the Gene Technology Act 2000, under certain circumstances in which an ‘action’ involving release of a GMO has, will have, or is likely to have a significant impact on a matter of NES protected under the EPBC Act, an approval from the Environment Minister would also be required under the general provisions of the EPBC Act.

38 Submission 068: I F Turnbull.39 Submission 068: I F Turnbull, p.3.40 Submission 173: Conservation Council (Western Australia).41 The Convention on Biological Diversity, done at Rio de Janeiro, 5 June 1992 (Biodiversity Convention), Art.8(g).42 A full list of GMOs that have been approved for intentional release into the environment is available at

http://www.ogtr.gov.au/internet/ogtr/publishing.nsf/Content/ir-1.

Biosecurity – invasive species

Current provisions of the Act18.57 The EPBC Act currently addresses a range of environmental biosecurity activities. These include:

18.58 Pre-border

Environmental risk assessment and decisions to list specimens as suitable for live import into Australia.

18.59 At the border

Border compliance and enforcement of live imports.43

18.60 Post-border

Post-border compliance and enforcement of live imports, including the possession of unlawfully imported live import specimens and progeny.

Management and control of established exotic species (e.g. pigs, cats, cane toads) through a range of EPBC Act mechanisms including listing of Key Threatening Processes and development and implementation of Threat Abatement Plans, Recovery Plans and National Park Plans of Management.

Beale review44

18.61 On 19 February 2008, the Minister for Agriculture, Fisheries and Forestry announced an independent review of Australia’s quarantine and biosecurity arrangements. The review was undertaken by an independent panel of experts chaired by Mr Roger Beale AO.

18.62 The Beale Review was released in December 2008. A key recommendation of this review is the development of a single biosecurity system for human health, plant and animal health and the environment that involves all the appropriate players pre-, at and post-border. The key recommendations include:

(1) development of a new Biosecurity Act, to replace the Quarantine Act 1908, drawing on the full range of Constitutional powers available;

(2) integration of the Commonwealth’s biosecurity activities within a new National Biosecurity Authority, responsible for administration of the new Biosecurity Act; and

(3) an increase in the Commonwealth’s investment in biosecurity by $260 million per annum, with an additional one-off investment of $225 million for information technology and business systems for biosecurity.

18.63 The Australian Government has agreed in principle to the review’s recommendations,45 and the Department of Agriculture, Fisheries and Forestry (DAFF) has been tasked with coordinating development of the new biosecurity legislation and establishment of the new Biosecurity Authority.

Key points raised in public submissions

Biosecurity18.64 Prevention of the introduction of the European bumble bee and the savannah cat were raised as positive

examples of the effectiveness of import provisions under the EPBC Act.46 However, it was also argued that most of Australia’s ecosystems and species are threatened by invasion by weeds and feral animals, and that the Government has failed to prevent the importation of further invasive species.47 It was believed that strong legislation and control measures now could save Australia from the rapidly increasing costs of trying to control existing and new invasive species.

43 The Department currently relies on cooperative arrangements with the Australian Customs and Border Protection Service for these functions.

44 Further information on the Beale Review is available at: http://www.daff.gov.au/quarantinebiosecurityreview.45 The Australian Government’s preliminary response is available at: http://www.daff.gov.au/about/publications/quarantine-biosecurity-

report-and-preliminary-response/beale_response46 Submission 103: Ku-ring-gai Bat Conservation Society.47 Submission 103: Ku-ring-gai Bat Conservation Society.

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18.65 Some submissions believe the process for listing species suitable for live import could be refined and simplified. There was concern that in order to import a species, it needs to be on the EPBC Act import list and the Biosecurity Australia import list. ARAZPA stated that:

whilst both lists serve different purposes there is scope to combine the process so an organisation only needs to deal with a single point of contact. A combined process with identified sequential decision points for the different needs [biosecurity/EPBC] would ensure that industry is not investing in one of the processes when it will be rejected by the other.48

18.66 It was also argued that there is a need for greater environmental focus in many biosecurity functions not regulated by the EPBC Act. For some environmentally relevant biosecurity functions not regulated by the EPBC Act, submissions argued that there is a bias in favour of agricultural/primary production protection and this is often at the expense of proper environmental protection.49 Better environmental oversight of biosecurity could be facilitated through reforms to the EPBC Act and/or in other ways through quarantine reforms. The Invasive Species Council (Australia) recommended that Australia needs programs with a stronger environmental focus to protect against and respond to accidental introductions of invasive species harmful to the environment.50

Invasive species18.67 The Government of Western Australia suggested that the existing process for assessing the impacts of

invasive species proposed for import into Australia is of concern, as it places the obligation for the preparation of key documentation on the proponent.51 It considered that the process would be more transparent and the assessment more balanced if a suitably qualified independent person were appointed to prepare these. Further, the Government of Western Australia suggested that:

the requirements of the assessment should be considered in the context of the more comprehensive approach which addresses environmental, economic and public safety factors required by Biosecurity Australia and recommended by the vertebrate Pests Committee’s Guidelines for the Import, Movement and Keeping of Exotic Vertebrates in Australia.52

18.68 A national workshop on ‘Risk assessment processes for import and keeping of exotic vertebrates in Australia’ was recently held by the Invasive Animals Cooperative Research Centre.53 Representatives from Australian, State and Territory Governments all acknowledged that there are substantially different approaches used by different jurisdictions for assessing risks of animals proposed for live import and difficulties associated with separation of powers, clarity of roles, and impacts of input from different agencies and lobby groups.54 These differences cause inefficiencies, inadequacies and confusion in risk assessment processes.

18.69 Some submissions argued that the onus to prove that the importation poses an environmental risk should not be on environmental groups; it should be on the importer to prove the safety of importation.55 This supports the concept of proponents preparing adequate assessment documentation. This concept has been supported in recommendation 37a of the Beale review as an option which may also improve the timeliness of import risk analysis.

18.70 As the basis for developing regulations and policies to prevent and minimise the impacts of invasive species on biodiversity, the Invasive Species Council of Australia suggested that the EPBC Act should provide the capacity for strategic invasive species risk assessments of new and emerging industries or product trends that are likely to significantly increase invasive species risks, and new and emerging invasive species threats and trends, including those associated with climate change.56

18.71 Further, the Invasive Species Council suggested that in light of limited government resources, the Australian Government should develop a prioritisation model under the EPBC Act for invasive species threats in Australia. A prioritisation framework could be used to help identify those invasive species issue to which regulations would be applied, as well as priorities for funding and other actions.

18.72 The ANEDO suggests that the control of invasive species could be improved by inclusion of an invasive species trigger under the Act.57 The ANEDO argued that:

48 Submission 042: Australasian Regional Association for Zoological Parks and Aquaria, p.2.49 Submission 166: Invasive Species Council (Australia).50 Submission 166: Invasive Species Council (Australia).51 Submission 201: Government of Western Australia.52 Submission 201: Government of Western Australia, pp.16-17.53 Submission 207: Invasive Animals Cooperative Research Centre.54 Submission 207: Invasive Animals Cooperative Research Centre.55 Submission 046: Invasive Animals Cooperative Research Centre.56 Submission 166: Invasive Species Council (Australia).57 Submission 189: The Australian Network of Environmental Defender’s Offices.

currently, graziers are planting a variety of invasive pasture plants in areas from which they may spread to natural environments and cause harm to matters of NES. However it was suggested that there is no obvious route to trigger an assessment despite potentially significant impacts.58

18.73 ANEDO recommends consideration of appropriate threshold conditions for triggering an assessment in regards to invasive species, such as where an action involves any species from a national environmentally harmful invasive species list in sensitive locations.59

Discussion of key points18.74 The Australian Government’s in-principle agreement to the Beale Review’s recommendations presents

an opportunity to embed environmental considerations as equal to those of human health and primary production in Australia’s approach to biosecurity. On 7 April 2009, the Environment Minister requested advice from this review on integrating the current environmental biosecurity regime under the EPBC Act into the new Biosecurity Act.

18.75 The 2006 State of the Environment Report stated that ‘many animal species and plants listed under the EPBC Act are threatened by at least one invasive organism.’60 This view has been well represented in public submissions made to this review61 and to the Beale review,62 raising concerns that most of Australia’s ecosystems and species are threatened to some extent by invasion by diseases, pests, weeds and feral animals. Of those submissions that commented on this issue, submitters believe that strong legislation and control measures are needed to save Australia from the rapidly increasing costs, both financial and environmental, of trying to control existing and new invasive species.

18.76 Subject to environmental considerations being considered equal to human health and economic (such as primary production) and social considerations, an integrated model should substantially improve efficiency and clarity in risk assessment and decision making processes. Additionally, moving towards an integrated model is consistent with most submissions to this review which called for a streamlined national approach for regulating invasive species.

Governance arrangements under the new Authority18.77 In principle, an integrated model should be pursued, subject to ensuring that environmental outcomes

are not compromised. Effective governance arrangements that embody environmental principles will be necessary to ensure that the culture of the proposed National Biosecurity Authority maintains adequate consideration of the environment. To this end, the following principles should be incorporated into the new biosecurity legislation and the operational procedures for the new Authority to ensure that environmental outcomes are not compromised:

the new biosecurity legislation should require that the environment must be given equal consideration alongside human health and economic and social considerations, for example, the legislation should provide that an unacceptable risk to any one consideration is an unacceptable risk overall and should result in an importation ban or specific measures to mitigate the identified risks;

the Beale Review recommended that the National Biodiversity Commission should be at arm’s length from Government, which should improve transparency and independence of risk assessments.

The Board for the Commission should include environmental representation, appointed by the Environment Minister;

the Environment Minister should have a deliberative role in approving guidelines for biosecurity risk analyses to ensure that environmental considerations are treated with equal importance;

environmental considerations should be required to be taken into account when determining Australia’s Appropriate Level of Protection; and

the activities of the new Biosecurity Authority must be consistent with Australia’s international biodiversity obligations, including World Trade Organisation Sanitary and Phytosanitary Agreement (SPS Agreement) and the Convention on Biological Diversity (CBD).

58 Submission 189: The Australian Network of Environmental Defender’s Offices, p.24.59 Submission 189: The Australian Network of Environmental Defender’s Offices.60 Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the

Environment 2006 (2006), p.41. Available at: http://www.environment.gov.au/soe/2006/publications/report/land-1.html61 See e.g. Submission 046: Invasive Animals Cooperative Research Centre; and Submission 166: Invasive Species Council Australia.62 See e.g. Submissions from the Invasive Animals Cooperative Research Centre and the Invasive Species Council Australia to the Beale

Review, available at: http://www.quarantinebiosecurityreview.gov.au/submissions_received

Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim reporthttp://www.environment.gov.au/epbc/review/publications/interim-report.html

18.78 Subject to inclusion of these or similar safeguards in the new biosecurity legislation, the live import components of the EPBC Act should transfer to the new Biosecurity Authority. The Authority will need to be resourced adequately to implement and manage its functions in a cost-effective manner, and to ensure the necessary scientific and biodiversity expertise to administer the full range of functions properly.

CITES species under the new Authority18.79 As mentioned above, CITES obligations in the EPBC Act relate solely to biodiversity protection issues

rather than biosecurity and should continue under the EPBC Act. The operational aspects of the regulation of CITES specimens, including enforcement provisions, would need to be determined prior to the new biodiversity arrangements coming into place.

Authority to make decisions about live imports18.80 Subject to environmental biosecurity being given equal priority alongside human health, economic and

social considerations, live import functions currently under the EPBC Act should shift to the new Biosecurity Authority. Moving the live import function to the new Authority would allow for a simplified Government approach, with the Authority having primary responsibility for all biosecurity-related imports and exports (a ‘single face’ at the border). It would also reduce regulatory burden for importers and avoid administrative duplication.

18.81 However, importation of a live specimen should only be approved if an import risk assessment has concluded that there is very low or negligible risk across all three ‘pillars’ according to Australia’s Appropriate Level of Protection under the SPS Agreement. As suggested above, the representation of environmental experts on the Biosecurity Commission would help to ensure that decisions based on risk assessments do not favour health or production at the expense of the environment.

18.82 Post-border management under the new authority

18.83 While it is clear for efficiency reasons that the live imports function should be transferred to the new Biosecurity Authority subject to the conditions described above, it is less clear where the authority for decisions relating to established pests should lie. Additionally, there is a need to address post-border compliance and enforcement activities (including penalty provisions) and investigate whether all offences and responsibility should transfer from the EPBC Act to the new Biosecurity Act.

18.84 Among the other biodiversity conservation measures provided under the EPBC Act, the Act provides for the listing of Key Threatening Processes (KTPs) for Australia’s biodiversity. The Act also sets up a regime for developing Threat Abatement Plans (TAPs) which identify research, management and other actions needed to ensure the long-term survival of those native species and ecological communities affected by a KTP.

18.85 Noting the efficiency reasons referred to above as supporting the transfer of all pre-border and at-border biosecurity functions to the new Authority, the same argument might appear to apply to support the transfer of responsibility for post-border responses of eradicating, managing and controlling established pests to the new Authority. However, it is clear that the power to make and implement TAPs under the EPBC Act serves a broader biodiversity conservation function than simply the management of pre-border and at-border biosecurity risks presented by the import of exotic weeds and pests. To this end, not all KTPs listed under the EPBC Act deal with established weeds and pests — some also deal with other threats, for example, diseases which originated in Australia. It is because of the broader biodiversity conservation focus of KTPs and TAPs that the KTP listing and TAP development functions should remain under the EPBC Act and continue to be administered by the Department.

18.86 Notwithstanding this position, it is worth considering whether administration of existing TAPs that deal solely with pre-border and at-border biosecurity issues should transfer to the new Agency. In addition, any new TAPs proposed to be developed in the future to deal with other pre-border and at-border biosecurity issues should be developed by the Department in consultation with the new Biosecurity Authority.

18.87 The EPBC Act also provides an important framework for recovery planning and action, which can be used to eradicate, mitigate and manage adverse impacts on biodiversity arising from invasive species. Apart from emergency responses, these functions should continue under the EPBC Act in co-operation with the State and Territory Governments.

Emergency responses18.88 Arrangements are currently in place to enable emergency responses to deal with animal and plant pests

where they impact on primary production or human health. There are no emergency arrangements, however, to deal with adverse impacts on the environment.

18.89 Similar treatment should be given to emergency responses for environmental issues and should be administered under the new Biodiversity Authority. The biosecurity legislation should require equal treatment, and the same arrangements, for emergency responses to animal and plant pests that present biosecurity risks to the environment, health and/or social and economic values.

Invasive species18.90 It was recommended that there be consideration of appropriate threshold conditions for triggering an

assessment in regards to invasive species, such as where an action involves any species from a national environmentally harmful invasive species list in sensitive locations.63 This issue will be considered further by this review. However, the new Biosecurity Act should go some way to addressing it, subject to environmental considerations not being compromised. It will be important to ensure that actions to prevent potential environmental impacts as a result of invasive species are addressed adequately under the new Biosecurity Act through robust risk assessments. A comprehensive range of appropriate measures will be important in order to comply with Australia’s international obligations under the SPS Agreement and the CBD, which requires Australia to ‘prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.’64

18.91 Should a risk assessment conclude an unacceptable risk to any one consideration (e.g. the environment), then it should be considered an unacceptable risk overall and result in an importation ban or the requirement for specific measures to mitigate the identified risks. This issue will be further examined as the new Biosecurity arrangements are developed.

18.92 It is worth noting that s.301A of the EPBC Act provides additional regulations for control of non-native species, including the establishment of a list of species and regulating or prohibiting import of species included on the list.

Record keeping (exotic birds)

Current provisions of the Act18.93 The EPBC Act regulates international trade in exotic birds in order to:

comply with Australia’s international obligations (CITES and CBD);

to protect wildlife that may be affected adversely by trade; and

to promote conservation of biodiversity in Australia and other countries.

18.94 Bird keepers who possess exotic birds must be able to prove the lawful import of their birds. Following extensive consultation over 18 months with the exotic bird sector, the Australian Government implemented an Exotic Bird Record Keeping Scheme (EBRKS) in December 2007 to help bird keepers comply with this.65 The scheme is a voluntary scheme, developed through extensive consultation with the exotic bird keeping sector. The aim was to address general concerns about the adequacy of documentation kept by bird keepers to prove that specimens had been lawfully imported. This is particularly important under the Act as the burden of proof to prove lawful import is on the individual holding the exotic bird. The EBRKS supports the provisions in the EPBC Act that replaced the previous National Exotic Bird Registration Scheme (NEBRS) which operated from 1996 to 2002.

18.95 Under the EBRKS, all exotic birds in Australia have been classified as either ‘High Interest’ or ‘Low Interest’ based on their pest and disease risk and the potential for illegal trade in the species. These classifications have been included in the publication of the 2007 Inventory of Exotic (non-native) Bird Species known to be in Australia66 which lists all exotic bird species known to be in Australia.

63 Submission 189: The Australian Network of Environmental Defender’s Offices.64 Convention on Biological Diversity (1992) Article 8(h).65 Further information on the Exotic Bird Record Keeping Scheme is available at

http://www.environment.gov.au/biodiversity/trade-use/exoticbirds/record.html.66 The 2007 Inventory of Exotic (non-native) Bird Species know to be in Australia is available at

http://www.environment.gov.au/biodiversity/trade-use/publications/inventory-exotic-bird07.html.

Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim reporthttp://www.environment.gov.au/epbc/review/publications/interim-report.html

18.96 As recommended by the exotic bird keeping sector, an evaluation of the EBRKS was to be undertaken during the first 12 months of operation. The Department commissioned an independent evaluation in 2007 to establish the participation level and value of the scheme and the attitudes of bird keepers towards it. This evaluation has been completed. The report and questions for discussion based on the report’s recommendations are on the Department’s website inviting public comment by 3 June 2009. 67

18.6.2 Key points raised in public submissions18.97 Submissions noted that due to the closure of the NEBRS, there exists a six-year period from January

2002 until December 2007 where acquisitions, sales and any other movements of exotic birds may not have the supporting records recommended (retrospectively) by the Department.68

18.98 It was also noted that the former NEBRS arrangement operated on registration of the owner and the species they kept – the new recording system is based on the owner and the identification of individual specimens. The Department’s ‘Compliance guide for exotic birds in Australia’ states that, in determining whether to take action, it will take into account (amongst other things) the extent and reliability of relevant documentation such as live import permits and NEBRS registration records identifying the source of the birds.69 However, submissions received from bird keepers expressed a view that the recommended record keeping standard makes it virtually impossible for aviculturists to comply with tracking exotic birds back to legal importation or in some cases to trace back to NEBRS registration.70 This is partly because on cessation of NEBRS there was no clear communication to bird keepers on the need to continue record keeping and as a result a gap in the necessary records has occurred.

18.99 It was also noted that some bird keepers have never held any paperwork or import papers for their birds since some species were imported long before there were any legal restrictions on importation.71

18.100 Submissions commented that the current proposed record keeping scheme has resulted in minimal use. A view expressed was that aviculturists interpret the scheme as a ‘hit list’ for the Department as it provides details of expensive specimens and where specimens can be found.72 They believe that sections of the Act relating to exotic bird species need to be removed and that a Government-run database scheme should commence. There were also suggestions that the reverse onus of proof provisions be removed from the EPBC Act.73 However, the Finch Society of Australia supported the current EBRKS. This is partly because no finch species are included in Class 1 (‘high interest’) of the Scheme.74 Exotic finch keepers use their discretion whether to apply the scheme to Class 2 species.

18.101 As is recommended in the report of the evaluation of the EBRKS, there was a suggestion for clarification, or at least consistency, between the Commonwealth and the States and Territories approaches to regulating exotic birds.75

18.102 Some submissions recommended incorporation of a ‘starting line’ into the Act – a fixed date which provides an unambiguous point of time for species to be recognised as being in Australia and which, therefore, should be appropriately recorded from that time forward.76 The Avicultural Federation of Australia recommended a scheme using a 100-point criterion (in which certain receipts, photographic identification, log book entries, animal identification media and the like, prove legality) to assist in the investigation of alleged breaches of the Act.77 This was one of the many options presented during previous consultation before the scheme was introduced for evaluation.

Discussion of key points18.103 The EBRKS was proposed by the Exotic Birdkeepers Advisory Group (EBAG), which was formed by

the Department to facilitate consultation and develop practical ways to assist individual bird keepers and the sector generally to comply with the EPBC Act. The Department has advised that, following a meeting of stakeholders representing all major clubs and societies associated with exotic bird keeping in October 2007, the EBRKS was adopted in December 2007. The theory behind the scheme is

67 DEWHA, Exotic bird record keeping scheme (2009) http://www.environment.gov.au/biodiversity/trade-use/invitecomment/exotic-bird-record-keeping-scheme.html at 19 May 2009.

68 Submission 178: united Bird Societies of South Australia.69 The compliance guide is available at: http://www.environment.gov.au/biodiversity/trade-use//publications/compliance-guide.html70 Confidential submission.71 Confidential submission.72 Confidential submission.73 Confidential submission.74 Submission 025: Finch Society of Australia.75 Submission 108: National Finch and Softbill Association.76 Submission 178: united Bird Societies of South Australia.77 Submission 187: Avicultural Federation of Australia.

commendable, providing ‘the bird keeping sector with the opportunity to demonstrate a willingness to participate in a self-regulating scheme.’78

18.104 Despite this consultation and the scheme being publicised extensively across the sector from its commencement, submissions were generally critical of the ‘reverse onus of proof ’ provisions and expressed concerns about proving the lawful import of birds and progeny and the ambiguity of keeping records, particularly as there has been a six-year gap (between the end of NEBRS in 2002 and the launch of EBRKS in 2007).

18.105 The ‘reverse onus of proof ’ provision is quite an acceptable and common approach for enforcement activities. There is therefore merit in considering whether the current provisions relating to the lawful importation of exotic birds and the ‘reverse onus of proof ’ provision should continue to apply under the EPBC Act and focus resources on regulating imports at the border.

18.106 However, as post-border management, including offence provisions for illegally imported exotic birds, may shift from the EPBC Act to the new Biosecurity Authority (discussed above), there is a potential opportunity to give more regulatory certainty for birdkeepers.

18.107 There is a need for certainty and co-operation on both sides to ensure that any self-regulating scheme succeeds. However, as noted in the independent evaluation report, the scheme was only introduced in late 2007 and it has been ‘difficult to gauge the scheme’s effectiveness over the very short timeframe in which the scheme has been operating.’79

18.108 Noting this, there could be merit in investigating the United Bird Societies of South Australia’s suggestion to incorporate a ‘fixed date’ which provides an unambiguous point of time for species to be recognised as being in Australia80. However there is concern that this approach may legitimise illegal birds that may already be held in Australia or, should it be a future fixed date, inadvertently encourage new illegal imports prior to the commencement date. There are views, for example, that NEBRS provided this baseline between 1996 and 2002 when it collected a comprehensive list of species known to be in Australia as part of the mandatory registration requirements.81

18.109 The 2007 Inventory of Exotic (non-native) Bird Species known to be in Australia may be an appropriate framework for creating a ‘black and white’ approach to ensure that bird keepers clearly understand which species they can keep and which species need to be recorded under the EBRKS. This approach could also provide improved guidance for compliance activities should species be found in Australia which are not on the prescribed list.

78 Exotic bird record keeping scheme evaluation report, p.5.79 Exotic bird record keeping scheme evaluation report, p.29.80 Submission 178: United Bird Societies of South Australia.81 Submission 178: United Bird Societies of South Australia.