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Parliamentary Joint Committee on Law Enforcement
16/08/2018
Trade in elephant ivory and rhinoceros horn

DUNPHY, Mr Peter, Executive Director, Specialist Services, New South Wales Fair Trading

WHITTON, Mr Matthew, Director, Specialist Services, New South Wales Fair Trading

[17:25]

Evidence was taken via teleconference—

CHAIR: Welcome. Thank you for talking to us today. The committee has not received a submission from your agency. I remind committee members and officers that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Do you have a brief opening statement, or will we go straight to questions?

Mr Dunphy : I do have a brief opening statement. Firstly, good afternoon, and I'd like to thank the committee for inviting New South Wales Fair Trading to speak at the public hearing for this committee's inquiry into the trade of elephant ivory and rhino horn. We know that the current legislative controls in Australia relate to a ban on the importation of these products and rely on effective measures to detect imports so that they do not enter the domestic supply chain. The domestic sale of non-imported elephant and rhino horn products remains legal within Australia. Fair Trading is a consumer protection agency, and our mission is to deliver effective regulation and protection for New South Wales consumers and businesses. We mediate consumer complaints and enforce compliance through licensing, inspections, investigations, prosecution and other enforcement actions.

New South Wales Fair Trading administers a range of consumer protection legislation, including the Australian Consumer Law, or ACL. The ACL is administered by the Australian Competition and Consumer Commission and the consumer protection agencies in each state and territory, and in New South Wales that is New South Wales Fair Trading. The ACL covers consumer guarantees, product safety and acceptable business practices and includes provisions for false and misleading conduct and unfair contract terms and sales practices. There are no proscriptive provisions specifically addressing the regulation of elephant ivory or rhino horn, and the ACL does not apply when you buy from a private seller, such as buying an item from a private seller on an online auction site.

In addition, New South Wales Fair Trading enforces specialised legislation relating to auctioneers, second-hand dealers and antique dealers. The current regulatory framework in New South Wales for accrediting auctioneers is under the Property, Stock and Business Agents Act 2002. This regulatory framework applies only when the auctioneer is dealing with the sale of residential property, rural land or livestock. Auctioneer licensing does not extend to personal goods and chattels, such as items containing ivory or horn. However, auctioneers and retailers of ivory and horn products are required to comply with the Australian Consumer Law.

Second-hand and antique dealers are covered by the Pawnbrokers and Second-hand Dealers Act 1996. However, the regulatory framework applies only when the dealer is dealing in goods that are prescribed under the associated regulations, and the prescribed goods do not include elephant ivory or rhino horn. Accordingly, the dealers do not require a second-hand dealer's licence to trade in those goods.

CHAIR: Could I quickly interrupt there. Could you give a few examples of what are prescribed goods under that regulation.

Mr Dunphy : The list of prescribed goods includes things such as jewellery, gemstones and precious metals; sporting and recreational goods; electric or electronic pianos and other musical instruments, but not pianos; photographic equipment; portable engine-powered, motorised or air-powered tools; computer hardware; computer tablets; mobile phones; and car accessories, as examples.

CHAIR: Couldn't some ivory items come under the category of jewellery?

Mr Dunphy : They include gemstones and precious metals, so it's jewellery that includes—

CHAIR: Contains gemstones, so things such as opals—representations. Sorry, please keep going. I didn't mean to interrupt you.

Mr Dunphy : I'll finish my statement. New South Wales Fair Trading would be happy to assist in any cooperative efforts with the Commonwealth agencies responsible for the enforcement of elephant ivory and rhino horn importation bans. I'm happy to take any questions.

CHAIR: The committee's had some evidence that auction houses and antique dealers have been saying to people who have purchased something as an ivory to take overseas: 'Just wear it. Tell people it's bone. Wrap it up, put it in your bag and don't declare it.' Is any of that conduct potentially illegal under any of the New South Wales fair trading laws?

Mr Dunphy : In terms of requirements for pawn brokers and second-hand dealers, the licensing of them relates to their duties in relation to those items that I just spelt out in terms of them being licensed. There are duties to report suspicious goods, but there are no specific requirements to notify those particular types of things, although there would obviously be a requirement to ensure that they act in an ethical way, and they would be subject to the—

CHAIR: What law could they be breaking? Is there something for, like, the licensed second-hand dealers that says that if you're not acting in an ethical way you can have your licence suspended?

Mr Dunphy : Certainly if there were complaints about how people were operating, under the Australian Consumer Law there are obviously provisions relating to misleading or deceptive conduct.

CHAIR: I don't think that provision would catch it. If I go to a second-hand dealer or an auction place—whatever it is—and I see a piece of ivory that I want to take back to Hong Kong with me. I would need a special permit to get it out of the country. If the person selling it says, 'Just wear it or wrap it in your bag and tell them it's bone,' I'm struggling to see how under existing law that would be prohibited. We would haven't sanctions against the second-hand dealer for that.

Mr Dunphy : There certainly aren't any specific prohibitions there in relation to it. There would be the general conduct in terms of any licence.

CHAIR: So it would be unethical conduct. You say there may be something in that pawnbroker's—is there a requirement to act ethically, or something like that, in the pawnbroker's thing that gives them a licence, or a second-hand dealer or an auctioneer a licence?

Mr Dunphy : Certainly under the licence's conditions they have to act in an appropriate way, in an honest way. If there were complaints about that it is something we could look at that, but there's nothing specific that would relate to specifically the scenario that you raise.

CHAIR: If a domestic ban on commercial ivory and rhino horn was implemented, what role would you see for agencies like yourself in, firstly, informing businesses and, secondly, enforcing such a ban?

Mr Dunphy : We're always happy to provide information and make sure that traders are aware of their obligations, regardless of what those are. So we do certainly promote providing traders with the broadest amount of information they need to know to perform their duties and to ensure that they're aware of other obligations under other legislation. In terms of the enforcement of that, our role is around consumer safety and consumer protection, so our role would really be in relation to protecting consumers and ensuring that they're safe. Any ban on that would be really more an environmental ban in terms of environmental protection, and we'd see that as being outside the scope of our involvement.

Senator SINGH: Mr Dunphy, do you work with and collaborate with the federal department of the environment's compliance unit?

Mr Dunphy : We collaborate with all Commonwealth and state agencies where there is a need to do that. If there was, we'd certainly be open to providing any liaison with them, in terms of sharing information or providing information that would help inform consumers and traders.

Senator SINGH: If I were a consumer and I went into an antique store or an auction house and saw a big ivory tusk, had suspicion that it was post-1975 and that it didn't have providence documentation and I called Fair Trading New South Wales about it, what would then happen?

Mr Dunphy : In terms of our particular controls for retail and for consumer safety, it wouldn't necessarily be a consumer safety issue, in terms of the requirements for both the auctioneer and the second-hand dealer. It would be outside the scope of that. So we would probably refer that matter on to the agencies that are responsible for the implementation ban to see if there was anything in relation to the inappropriate importation of that into Australia or if anything is affected by that.

Senator SINGH: Understanding you're at the state level, are you provided with any education by the federal department of the environment about Australia's requirements to comply with CITES?

Mr Dunphy : Not at this stage. But, as I said, we'd be very happy to engage with them and to be able to share and use our networks to promote any information that might be of value to both the traders and the consumers.

Senator SINGH: So you just have to do your own internal educating of staff on such matters, I presume.

Mr Dunphy : If it's relevant. Again, our focus is on consumer product safety and consumer safety. Our focus is primarily on those particular areas. As I said, this issue is really from an environmental consideration, so we wouldn't normally get involved. But, as I said, we'd be very happy if that helps in terms of ensuring that traders are aware of all their duties and obligations and, also, consumers are aware of information that's relevant to them. We would share that information.

Senator SINGH: So it has to cause some harm—is that what you're saying—to the individual?

Mr Dunphy : Certainly, as a consumer protection agency, our interest is primarily in ensuring the products that are on the market don't harm the consumer and that trading is done in a fair and appropriate way. That's our primary focus.

Senator COLBECK: Mr Dunphy, in that circumstance, if a trader has the responsibility of reporting suspicious goods as part of the conditions of being able to trade and not reporting something that has the appropriate providence documentation, even though that might be an environmental regulation as such, it still has the potential to cause consumer harm. And, having the paperwork to prove that it is, in fact, a legal product would also be a compliance issue, would it not?

Mr Dunphy : Under the Pawnbrokers and Second-Hand Dealers Act, there is a duty for the trader or an employee of the trader of the licensee—that is, people who are licensed as either second-hand dealers or pawnbrokers. If goods offered to the licensee or employee for sale or for pawnbroking purposes may have been stolen or otherwise unlawfully obtained, they do have an obligation to inform an authorised officer. That includes a police officer and could also include one of our consumer protection officers. If it was reported to us we would certainly be interested in following up that particular concern.

Senator COLBECK: So 'suspicious' for your purposes means stolen or not legally obtained—not necessarily not legal to trade?

Mr Dunphy : It can be stolen or not legally obtained, yes.

Senator COLBECK: So not necessarily 'not legal to trade'?

Mr Dunphy : The focus is on it being stolen or otherwise unlawfully obtained. That is the requirement under the Pawnbrokers and Second-hand Dealers Act in those circumstances where they need to notify an authorised officer, and, as I said, that could either be a police officer or one of our appointed consumer protection officers. But it is limited and restricted to those circumstances.

Senator COLBECK: So there is no provision in that act to deal with issues of 'not legal to trade'? There must be.

Mr Dunphy : No; that's right.

Senator COLBECK: So there's not?

Mr Dunphy : The only provision is where there is a belief that the product has either been stolen or otherwise unlawfully obtained.

Senator COLBECK: I'm finding it hard to come to grips with the fact that it is not legal under the Fair Trading Act to sell something that is illegal to sell and it doesn't matter under what circumstances. How can it be legal under your Fair Trading Act to sell something that is illegal to sell because it is a prohibited item? If it doesn’t have the paperwork it is a prohibited item. That's a logical step to take.

Mr Dunphy : I am saying that if it is unlawfully obtained, if it is illegal, they have an obligation to notify the police or to notify us.

Senator COLBECK: But it may not have been illegally obtained; it might be that it doesn't have the paperwork that allows it to be traded.

Mr Dunphy : That's a possibility, yes.

Senator COLBECK: But that still would be caught within your—

Mr Dunphy : If items were illegally traded that would certainly be something that we would look at under Australian Consumer Law.

Senator SINGH: Is the difficulty, though, the fact that at the moment in Australia—as opposed to the UK, which has just introduced a domestic ban, and China, parts of the US, the EU and so forth—Australia doesn't have any legislation for the domestic trade and therefore you don't really have a role in that?

Mr Dunphy : The point is that there is no specific requirement. It is legal to trade in ivory and horn materials within the country provided they haven't been illegally imported into the country. So certainly in those circumstances there is nothing there for us to determine in that the trade is perfectly legal within the jurisdictions.

Senator SINGH: If Australia was to introduce domestic legislation—and I understand that, to implement such legislation at that level, it would have to be done in consultation with the states and territories—you would have a different role? Is that correct?

Mr Dunphy : As we would with any product that was sold illegally, we would be looking at any potential breaches of the Australian Consumer Law.

CHAIR: Do you have anything further, Senator Colbeck?

Senator COLBECK: I suppose the only other question that went along with that is: do you provide any specific information to the retailers around their legal reporting requirements? How is that information communicated?

Mr Dunphy : Just so I can understand: are you talking about information specifically to do with ivory?

Senator COLBECK: The general requirements of complying with consumer law. Is there a specific process for providing that information into the sector?

Mr Dunphy : There is. There are a number of channels. We have quite a large number of different networks. We provide that through industry associations, and we provide that through our online services and information that we provide through the web. But we also have a number of digital media and digital newsletters which we would provide information to as well. There is regular stakeholder engagement activities and campaigns which we would provide information to. So there is a range of different sorts of channels through which we can provide information to the industry.

Senator COLBECK: Okay. Thank you.

CHAIR: Thank you, Mr Dunphy and Mr Whitton. We appreciate your time. Thank you for being on the teleconference today. That concludes today's proceedings. The committee has agreed that answers to questions taken on notice at today's hearing should be returned by 7 September 2018. I thank all witnesses for their evidence today.

Committee adjourned at 17:46