Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://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 Act
18.1
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 submissions
18.5
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
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.
whether the EPBC Act could provide an appropriate framework for biosecurity regulation in the
environment sector.
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 approach
18.13
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 points
18.15
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
4
Submission 201: Government of Western Australia, p.17.
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.
5
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
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
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 Act
18.19
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 submissions
18.21
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
11
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
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.
suggested by both the Humane Society International 20 and the International Fund for Animal Welfare21
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 points
18.26
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.
Welfare
18.27
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.
20
Submission 182: Humane Society International.
Submission 179: International Fund for Animal Welfare.
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/aaws
26
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.
21
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
18.32
18.33
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:

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.
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 process
18.34
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:
29

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).
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) 9A.21.
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.
30

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
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 Taskforce 34 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 Act
18.46
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.
33
E-Bay, Animals and wildlife products policy E-bay website (2009) http://pages.ebay.com/help/policies/wildlife.html at 22 May 2009.
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.
34
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Key points raised in public submissions
18.49
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
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 points
18.51
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.
38
Submission 068: I F Turnbull.
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.
39
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.
Biosecurity – invasive species
Current provisions of the Act
18.57
The EPBC Act currently addresses a range of environmental biosecurity activities. These include:
18.58
Pre-border

18.59
At the border

18.60
Environmental risk assessment and decisions to list specimens as suitable for live import into
Australia.
Border compliance and enforcement of live imports. 43
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
Biosecurity
18.64
43
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
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-biosecurityreport-and-preliminary-response/beale_response
46
Submission 103: Ku-ring-gai Bat Conservation Society.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
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.
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 species
18.67
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
47
Submission 103: Ku-ring-gai Bat Conservation Society.
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).
48
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:
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 points
18.74
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 Authority
18.77
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;
Submission 189: The Australian Network of Environmental Defender’s Offices.
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.html
61
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
57
58
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
18.78

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).
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 Authority
18.79
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 imports
18.80
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 biosecurityrelated 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 atborder 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 responses
18.88
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 species
18.90
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 Act
18.93
18.94
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.
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.
Submission 189: The Australian Network of Environmental Defender’s Offices.
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/tradeuse/exoticbirds/record.html.
63
64
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
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.
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 submissions
18.97
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.
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.
67
DEWHA, Exotic bird record keeping scheme (2009) http://www.environment.gov.au/biodiversity/trade-use/invitecomment/exotic-birdrecord-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.html
70
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.
Discussion of key points
18.103 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
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.
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.
79