Amendments to Appendices I, II and III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
Background
3.1
This Chapter examines the Amendments to Appendices I, II and III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the amendments). The amendments were adopted in Geneva on 28 August 2019 and tabled in the Parliament on 30 November 2020.
3.2
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a multilateral treaty comprising mechanisms for regulating international trade in endangered species and three Appendices listing the endangered species of animals or plants, whether dead or alive, and products derived from these animals or plants to which the regulations apply.
3.3
The Appendices separate the listed species according to the degree of risk of extinction. Different regulations apply for the international trade of listed species depending on which Appendix the species is listed. The Appendices are:
Appendix I, which lists all species threatened with extinction which are or may be affected by trade. Exports or imports of specimens of species included in Appendix I can only take place with an export permit granted when the following conditions are met:
the export will not be detrimental to the survival of the species;
the specimen has been legally obtained; and
if living, the specimen will be prepared and shipped to minimise the risk of injury, damage to health or cruel treatment.
Imports of specimens of species included in Appendix I also require an import permit which can only be granted when the following conditions are met:
the import will be for purposes not detrimental to the survival of the species;
if living, the proposed recipient is suitably equipped to house and care for the specimen; and
the specimen is not to be used for primarily commercial purposes.
Appendix II, which lists species not necessarily threatened with extinction, but which may become so unless international trade in the species is subject to strict regulation. Exports or imports of specimens of species included in Appendix II can only take place with an export permit granted when the following conditions are met:
the export will not be detrimental to the survival of the species;
the specimen has been legally obtained; and
if living, the specimen will be prepared and shipped to minimise the risk of injury, damage to health or cruel treatment.
Exports must be monitored and permits restricted so that the species is maintained throughout its range at a level consistent with its role in relevant ecosystems and well above the level at which the species might become eligible for inclusion in Appendix I.
Appendix III, which includes species which a CITES Party identifies as being subject to regulation within its jurisdiction to prevent or restrict exploitation, and needing the cooperation of other CITES Parties to control trade in that species. Exports or imports of specimens of species included in Appendix III can only take place with an export permit granted when the following conditions are met:
the specimen has been legally obtained; and
if living, the specimen will be prepared and shipped to minimise the risk of injury, damage to health or cruel treatment.
3.4
A Conference of the Parties (CoP) is held at least once every two years. CoPs deal with:
the funding and administration of the CITES Secretariat;
amendments to the Appendices;
reports prepared by the CITES Secretariat or a CITES Party; and
where appropriate, recommendations improving CITES’ effectiveness.
3.5
Amendments to Appendices I and II considered at a CoP must be proposed by a CITES Party at least 150 days before the CoP. Amendments must be supported by at least two thirds of CITES Parties present and voting to be adopted. Once adopted, amendments to Appendices I and II come into force 90 days after the CoP for all Parties, except those that make a reservation or where otherwise agreed.
3.6
CITES Parties can notify reservations with respect to any amendments to Appendices I and II during the 90 days period following the CoP. For example, in relation to the amendments being considered here, a number of African countries which are range States for giraffe have notified reservations to the listing of giraffe species in Appendix II.
3.7
Amendments to Appendix III can be requested by CITES Parties at any time, including as part of a CoP. The CoP does not make decisions on these listings, instead they automatically enter into force 90 days after communication of the listing to the Parties by the CITES Secretariat. However, reservations can be made by CITES Parties at any time after the communication of the listing.
The amendments
3.8
According to the National Interest Analysis (NIA), Australia’s participation in CITES advances Australia’s domestic and regional conservation interests and supports legitimate trade in wildlife into and out of Australia.
3.9
These amendments to the CITES Appendices were agreed at the 18th CoP, held in August 2019. The 18th CoP considered 57 listing proposals for Appendices I and II, of which 46 were adopted. Several requests for amendments to Appendix III were also timed to coincide with the 18th CoP.
3.10
The NIA states that Australia is not a range state for the majority of species covered by the Appendix I and II listings, or any of the Appendix III requests. Nor is Australia involved in the international trade of the majority of these species.
3.11
Of the amendments relating to species for which Australia is a range state, or in which Australia is involved in international trade, six amendments concerned transferring species from Appendix I to Appendix II. The species concerned were as follows:
Western Rufous Bristlebird; and
3.12
The Department of Agriculture, Water and the Environment (DAWE) confirmed during the public hearing on 1 February 2021 that these species remain endangered. DAWE advised the Committee that the domestic legal protections afforded to these species as a result of their conservation status have not changed, and the species remain listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (the Act).
3.13
DAWE went on to confirm that the decision to transfer these species from Appendix I to Appendix II of CITES was made because there has been no international trade in these species since they were listed in Appendix I in the 1970s.
3.14
Four marine species for which Australia is a range state were listed in Appendix II as part of amendments adopted at the 18th CoP:
Shortfin and Longfin Mako Sharks;
3.15
As discussed above, to export species listed in Appendix II an export permit is required which can only be granted if that export will not be detrimental to the survival of that species.
3.16
State and territory fisheries managers have advised DAWE that they do not intend to seek export permits for Shortfin and Longfin Mako Sharks, Wedgefish or Guitarfish. In relation to Sea Cucumbers, the NIA states that there are four existing fisheries that export this species.
3.17
DAWE confirmed that export fisheries in Australia must undergo an assessment process as a wildlife trade operation. If the fishery is intending to export CITES listed species, the assessment process examines the sustainability of the harvest of that species. If the assessment process finds that the species is being harvested sustainably, the Australian Government will make a non-detrimental finding, which will permit export of the species.
3.18
According to Mr Stephen Oxley of DAWE:
… for the relevant species of sea cucumbers to be exported from Australia—we have two of the three species, which are commonly known as black teatfish and white teatfish—they're commonly taken from a number of fisheries … the Torres Strait Beche-de-mer Fishery … the Commonwealth Coral Sea Fishery and the Queensland Sea Cucumber Fishery. All those fisheries are assessed under the provision of the EPBC Act, the Environment Protection and Biodiversity Conservation Act, against the sustainable fisheries guidelines. They provide the standards for the sustainable management of fisheries.
3.19
DAWE advised that at the time of the public hearing (1 February 2021), the Australian Government had made a non-detrimental finding in relation to three fisheries to export black teatfish and two fisheries to export white teatfish. White teatfish from the Commonwealth Coral Sea Fishery are not permitted to be exported.
3.20
Amendments were also adopted at the 18th CoP in relation to several species and their products that Australian businesses are known to trade. These include:
Cedrela species (Cedars);
Asian Small-Clawed Otters; and
3.21
According to the NIA, the listing of Cedrela species in Appendix II of CITES may have an impact on Australian businesses that trade in wood products derived from Cedrela species. Australian businesses intending to trade in products from this species will now have to obtain permits. However, consultation by DAWE did not identify any businesses trading in Cedrela species.
3.22
The Australian musical instrument industry frequently trades in Rosewood. Amendments to the listing for Rosewood means musical instruments containing Rosewood, as well as shipments of Rosewood up to 10kg, can be traded without the need for permits. The NIA estimates that Australia’s trade in Rosewood, particularly musical instruments, is worth millions of dollars annually.
3.23
Finally, Australian zoos may occasionally be involved in the live trade of two of the species:
Asian Small-Clawed Otters, which have been listed in Appendix I. Australian zoos wishing to trade in live Asian Small-Clawed Otters must ensure that a Cooperative Conservation Program is in place for trade to occur; and
Giraffes, which have been listed in Appendix II. Australian zoos wishing to trade in live giraffes must apply for permits to do so.
Implementation
3.24
As discussed above, amendments to Appendices I and II come into force 90 days after the CoP for all Parties, except those Parties that make a reservation or where otherwise agreed. For species for which Australia is a range state or in which Australia is involved in international trade, the amendments came into force for Australia:
On 26 November 2019 (90 days after the CoP) for the following:
Western Rufous Bristlebird;
Shortfin and Longfin Mako Shark;
Asian Small-Clawed Otter; and
On 28 August 2020 (as agreed by the CoP) for the following:
3.25
Australia implements CITES amendments by amending listed species in the List of CITES Species for the Purposes of the Act. The amended listings are made by non-disallowable instrument. Instruments implementing the amendments made at the 18th CoP were made on 26 November 2019.
Committee consideration of the amendments to CITES
3.26
The Committee has frequently observed that the 90 day time frame between a CoP and the entry into force of the CoP amendments to the CITES Appendices undermines the value of the Committee’s consideration of these amendments because there is usually insufficient or no time for the Committee to undertake an inquiry before the amendments come into force.
3.27
The Australian Government also recognises that the 90 day time frame may prevent the tabling of the amendments in the Parliament before the amendments come into force.
3.28
In the past, relevant Ministers have attempted to address this problem by writing to the Committee to notify it of the proposed amendments before the amendments are tabled in the Parliament. The former and current Ministers for the Environment, the Hon Melissa Price MP and the Hon Sussan Ley MP respectively, adopted this procedure in relation to the amendments under consideration here.
3.29
DAWE advised the Committee that there were a set of processes that followed the amendments being adopted before they could be tabled in the Parliament. These processes included:
consultation with state and territory fisheries management agencies to obtain further information on the possible regulatory impact of the listings;
the Office of Best Practice Regulation’s consideration of the Regulatory Impact Assessment prepared by DAWE; and
consideration of the draft NIA by the Office of International Law in the Attorney-General’s Department, and the Department of Foreign Affairs and Trade.
3.30
The amendments under consideration here, were not tabled in the Parliament until 30 November 2020, more than 12 months after the 18th CoP.
3.31
DAWE advised the Committee that the extended delay in tabling the amendments was due to COVID-19 related disruption of the processes outlined above prior to tabling.
Committee comment
3.32
The Committee normally conducts its inquiries into amendments to CITES under paragraph 1(a) of the Committee’s resolution of appointment, which permits the Committee to conduct inquiries into:
… matters arising from treaties and related National Interest Analyses and proposed treaty actions and related Explanatory Statements presented or deemed to be presented to the Parliament.
3.33
The Committee considers that the current procedure, in which the relevant Minister writes to the Committee prior to proposed amendments to CITES being tabling in the Parliament, can be improved upon to allow the Committee sufficient time to conduct an inquiry into the proposed amendments before they come into force.
3.34
In the Committee’s view, the Committee’s resolution of appointment provides an alternative mechanism that would better enable the Committee to inquire into proposed amendments to CITES, and potentially other proposed treaties which include amendments that come into force automatically.
3.35
Paragraph 1(b) of the Committee’s resolution of appointment permits the Committee to inquire into:
… any question relating to a treaty or other international instrument, whether or not negotiated to completion, referred to the committee by:
either House of the Parliament, or
3.36
It follows, paragraph 1(b) of the Committee’s resolution of appointment allows the Committee to conduct an inquiry into treaties that have not been negotiated to completion upon referral of a Minister. Accordingly, the Minister for the Environment could refer proposed amendments to CITES to the Committee for an inquiry either before or just after the CoP at which the amendments are considered.
3.37
The Australian Government has used paragraph 1(b) of the Committee’s resolution of appointment as a mechanism for referring inquiries to the Committee in the past. The most recent example was in September 2020, when the Attorney-General wrote to the Committee requesting that it inquire into the Australian Government’s decision to suspend the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong and the Agreement between the Government of Australia and the Government of Hong Kong concerning Mutual Legal Assistance in Criminal Matters.
3.38
The Committee is of the view that an inquiry conducted on referral from the relevant Minister under paragraph 1(b) would be the most effective way of resolving the problems associated with the amendments to CITES coming into force before the Committee has had sufficient time to undertake an inquiry.
3.39
The Committee considers that, as soon as practicable after the Australian Government is informed of a proposed amendment to a species listed in the CITES Appendices for which Australia is a range state, or in which Australia is involved in international trade, the relevant Minister should refer, by letter, the proposed amendment to the Committee for inquiry, citing paragraph 1(b) of the Committee’s resolution of appointment.
3.40
The Committee recommends that, as soon as practicable after the Australian Government is informed of a proposed amendment to a species listed in the CITES Appendices for which Australia is a range state, or in which Australia is involved in international trade, the relevant Minister should refer, by letter, the proposed amendment to the Committee for inquiry, citing paragraph 1(b) of the Committee’s resolution of appointment.
Conclusion
3.41
In relation to the amendments to CITES under consideration here, the Committee is of the view that the amendments are in Australia’s national interest, and the Committee supports the amendments entering into force.
3.42
As discussed above, the amendments have already entered into force. Consequently, it is not necessary for the Committee to make a recommendation on these amendments.