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Parliamentary Joint Committee on Law Enforcement
03/07/2018
Trade in elephant ivory and rhinoceros horn

BENDING, Ms Zara, Associate Member, Centre for Environmental Law

DAFT, Dr Shireen, Deputy Director, Centre for Environmental Law

CHAIR: I welcome representatives from the Centre for Environmental Law. Welcome, ladies. Thank you for talking to us today. The committee has received your submission as submission No. 39. Do you wish to make any amendments to your submission?

Ms Bending : No, we don't.

CHAIR: Would you like to make a brief opening statement before we go to questions?

Ms Bending : Yes, thank you. Good morning, honourable chair, members of the committee and all who are present today. I am an associate of the Centre for Environmental Law, and I appear today with our deputy director, Dr Shireen Daft. Student volunteer Shannon Peters is seated behind me. We thank the committee for its invitation today.

As recognised in a growing body of international law, illicit trafficking in endangered species of wild flora and fauna is a serious crime. The clandestine nature of wildlife trafficking means that the full extent of criminal behaviour is unlikely to be uncovered, compounded by the pervasiveness of corruption and bribery. This margin of uncertainty, however, does not provide a bar to adopting proactive measures to mitigate risk. With domestic markets around the world closing and/or becoming subject to stricter safeguards to minimise the risk of legal markets acting as a conduit for illicit trade, a common concern is that displacement will see the activities of these resilient criminal networks shift to states where legal rules are lax in substance or implementation or are ambiguous or non-existent. We hope that this inquiry will strengthen Australia's approach to this crime, particularly given its geographic, cultural and economic relationships with key consumer countries of elephant ivory and rhino horn.

Dr Daft : We would also like to stress that there is a security dimension to international wildlife trafficking. Just as natural resources, such as so-called blood diamonds, have been used and continue to be used to fund and thereby fuel internal conflicts and instability around the globe, it's being increasingly recognised that armed groups and militia have also been using poaching and wildlife trafficking to fund their operations and atrocities to undermine state authority and destabilize regions. This is particularly apparent in the Central African Republic and the Democratic Republic of Congo, where gross violations of international humanitarian law and international human rights law are occurring. The fact that wildlife trafficking poses a threat to international peace and security has been recognised by the United Nations Security Council and, in fact, first hit the agenda of that organisation during Australia's tenure on the council in 2013 and 2014. The Security Council has, in a number of resolutions, explicitly noted the linkage between poaching and the international trade of wildlife and wildlife products with the proliferation and trafficking of arms in the African Great Lakes region. Currently, the illicit exploitation and trade of wildlife and wildlife products is included in the listing criteria for sanctions issued by the committee for the Democratic Republic of Congo and the Central African Republic. As Ms Philippa King, then Deputy Permanent Representative of Australia to the United Nations, pointed out:

… illegal trade is a gift to transnational criminal networks, which have become increasingly adept at exploiting weak governance across states to expand their activities.

A global response to this issue is required, and it is vital that Australia not present a weak link in the chain. We are thus grateful that this joint committee has turned its attention to the issue of trade in elephant and rhinoceroses, and we thank you for your time.

CHAIR: Is there a risk, if we go down the track of 100 per cent bans and strong regulations, that you drive the trade underground and you encourage criminal elements to become involved, and are we better to attack it from the demand side rather than the supply side?

Ms Bending : The trade is demand driven and, as we've seen longitudinally across centuries, there will always be some form of demand. We even have evidence now of syndicates creating demand through new advertised uses and applications of their produce. There already are black markets operating, and, in terms of the function of the law, we understand that the law has an expressive function and that it communicates norms, standards and certain of the principles of a state. It's inquiries like this that provide an opportunity to demonstrate not just to the public and conservationists and NGOs where governments sit on these kinds of issues but also to organised criminal networks. The deterrent aspect is certainly something that we could improve on.

CHAIR: In what ways would you suggest that more could be done on the deterrent aspect and trying to actually squash the trade from the demand side rather than from the supply side?

Ms Bending : We've seen some very extreme examples that I don't necessarily believe Australia would be in favour of. In Africa we're seeing shoot-to-kill policies—killing poachers on sight. We are also seeing the death penalty. I believe Kenya was the most recent in relation to those involved in poaching activity. And there are certainly reasons why my colleague Dr Daft, in particular, would have a degree of discomfort with that particular type of penalty, given, increasingly, who is being used in those kinds of activities. Some enforcement would be useful. Some domestic regulation, which we are currently lacking in, would be useful—even looking to make the penalties under the current provisions of the EPBC actually provide a disincentive in comparison to the potential profits.

CHAIR: Within Australia, one of the issues that the committee is looking at is illegal activity occurring at the border.

Ms Bending : Yes.

CHAIR: It's either import or export. But, once it gets through that gateway, it's pretty much open to trade from there. Do you have any comments or thoughts on that?

Ms Bending : We had a long discussion about what CELs role would be with this inquiry, and I'll be appearing later in my capacity as a board director for the Jane Goodall Institute Australia, and we certainly have a position there.

In terms of the proverbial hat that I'm wearing at the moment, we're seeing our role more in terms of providing information and framing around issues—for example, the connection between conflict and poaching. In the spirit of consultation—I know in environmental governance in Australia we value public participation and consultation at length—I think we should be looking to the process that was done and the expert reports tendered in the UK. That would be useful. Obviously that is only insofar as that would be relevant to the Australian context, particularly our position in the region.

Senator SINGH: Thank you for your submission and for appearing today. Obviously CITES regulates the international trade in elephant ivory and rhinoceros horn. Their member states are responsible for regulation of their respective domestic markets, of which Australia has seems to have none. From your legal perspective, can the Commonwealth implement a domestic ban on the ivory and rhino horn trade?

Dr Daft : In simple terms, there's no question of that because we are a party to CITES. The external affairs power is the most obvious source of giving you the absolute justification for the Commonwealth to enact any legislation in response to actually regulating a particular area. That's the short answer to that.

Ms Bending : As many scholars in constitutional law would say, the answer is the Tasmania Dam's case and certainly respect to the external affairs power and situation. I believe that IFAW had tendered advice from a barrister—Dr Robin Smith, from memory.

Dr Daft : We read that submission and we'd actually endorse everything that was said there as an accurate legal statement.

Ms Bending : Dr Smith said:

… there are 4 relevant sources of power. These are (in descending order):

(1) The external affairs power;

(2) The trade and commerce power;

(3) The corporations power;

(4) The communications power.

That was in submission 65, attachment 3.

Senator SINGH: Presently what we have is the EPBC Act, and there is no approval or authorisation under that act on the domestic trade in a CITES listed species. So do you regard the EPBC Act as sufficient in combating illegal domestic wildlife trade?

Ms Bending : The EPBC Act is about international trade. It doesn't really have a lot to say on domestic regulation with respect to interstate and intrastate trade.

Senator SINGH: So what are the deficiencies within the EPBC Act in relation to the illegal trade of elephant and rhino horns?

Ms Bending : Under the EPBC Act we do have stricter than CITES' provisions with respect to, as submissions have been made on today, the standard required with respect to certification—elephants being all treated as Appendix 1 species, for example, and also the requirement of carbon dating to 1950 for rhinoceros horn. In terms of the act as it operates with respect to domestic regulation, again, there's very little there. We do have offence provisions under the EPBC Act. I believe, for example, looking to a possession offence, which threats it in terms of penalty units, it's five years imprisonment. What were the penalty units on that?

Dr Daft : It ranges, but the point is that, even though it does have imprisonment penalties, as has been discussed today, it doesn't get used. It's only being used—

Senator SINGH: Is that because there's no monitoring going on by the department? Is that why it doesn't get used, do you think?

Ms Bending : We can't answer that. We don't know why—

Senator SINGH: The department said this morning that no monitoring is going on by the department. So, in light of that evidence, do you think that the offence provision is not being applied because the department aren't doing any work to find out where the offences lie in Australia?

Dr Daft : I would imagine there would be a lot of factors that would be involved there, including the fact that this issue hasn't been taken as a priority until now when you're doing an actual inquiry. So, to date, there hasn't been a lot of attention to actually drive that. Without investigations, again, you don't have anything driving a result that's going to lead to prosecutions.

Ms Bending : I was looking at section 303G and it's five years or 1,000 penalty units or both for that particular offence under the act. Again, understanding the imperatives and the priority areas of Border Force, currently we're looking more to issues of illicit drug trafficking. I had a colleague, who is currently an associate professor at Swinburne university, who did a lot of work on cryptomarkets, the darknet, Silk Road and subsequent platforms that have popped up on the dark web. I understand that that's very much where the emphasis is. In terms of the existing provisions, you can have a provision, but where's the implementation and where's the enforcement? You can excuse my adage here, but perhaps it is a paper tiger.

Senator SINGH: The UNODC's 2016 World wildlife crime report: trafficking in protected species—I think you refer to it in your submission—has identified Australia as a destination and transit country in ivory. Obviously we're aware of that from the 2015 seizure in Perth. Now we've had China announce its ban and I think some other countries in the region looking at similar provisions. Hong Kong is the other one I was thinking of. Given Australia's proximity to the wildlife-trafficking destinations of Vietnam and Thailand and the closure of those countries that have announced their own domestic bans, is it a reasonable assumption to make that Australia could be used more as a transit and destination country, as the UNODC report has identified us as?

Ms Bending : I believe so, and not just for the reasons of the closure of markets. It certainly exacerbates the issue, but we have significant commercial ties certainly to China and, being a very multicultural country, we do have a number of prominent diaspora communities in Australia, so you have a constant influx of people and we know that personal baggage is often used in terms of typical paths in and out, and so is mail. From what I could see in relation to the darknet—and I'll emphasise here that the clear net is being used much more for wildlife trafficking and the darknet more for drugs—on the darknet, you'll have users giving advice as to how to fool Border Force, what to put on a label, quantities, the type of packaging and how to make it look less suspicious. Anecdotally I've heard of similar instructions being given with respect to wildlife in relation to mail as well.

I can actually bring in some of our work currently. The Centre for Environmental Law is currently in a relationship with the Jane Goodall Institute Global, and we are taking part in the Oxford Martin Programme on the Illegal Wildlife Trade horizon scan. We're trying to figure out collaboratively, through an interdisciplinary group of experts, what the main issues are and what the emerging issues are going to be in wildlife trafficking in the next five to 10 years. Latin America kept coming up. We were wondering why Latin America. Recently there have been a number of reports and a number of research projects coming out of Oxford on jaguar fangs, which we hadn't traditionally looked at in the field. We're finding increasingly that the market for those kinds of exotic species from Latin America, and the exotic pet market, are being driven by increasing commercial relationships between China and Latin America—or rather South America, to be correct with my nomenclature. For example, you'll have construction projects that are predominantly completed locally, and you may have a Chinese business entity come in to finish off the project, so you do have this influx. I can provide the committee with numbers to that effect on notice, if they wish, but what's very clear is that there certainly is a correlation between the frequency and extent of wildlife trafficking in that region and the influence of prominent business-type Chinese nationals.

Dr Daft : I go back to the original question, Senator: is Australia more likely to become the market? If we're seeing more bans around the world and Australia doesn't step up and do the same, we are going to be seen as the weak option and, therefore, we're going to be targeted for that very reason. That's how it is working in transnational organised crime. If one place doesn't work, they shift to another. They are very global operations.

Ms Bending : You want Australia to be seen not as a node of safety for organised crime but a solid node of security against it.

Senator SINGH: Would you say we're not right there at the moment?

Ms Bending : I think time will tell. If we don't take some sort of action on the issue, the status quo may work for a time but markets around the world are closing and these organisations are resilient. We've seen work from Ms Julie Ayling on the resilience of these networks. You have theft networks, harvest networks and distribution networks. Professor Lorraine Elliott from the ANU did provide a submission as well. She breaks down the typology of crime involved. There are extraction crimes, which include poaching and theft; transportation crimes with the movement from X to Y, storage et cetera; production crimes, such as carving; enabling crimes, such as fraud and bribery; and profit-related crimes, such as money laundering. There is significant crime convergence with other areas, such as drugs and piracy. That was submission No. 64 by Professor Elliott. You can find that on page 7. In terms of details on crime convergence, you could refer to a number of submissions but certainly Mr Luke Bond's submission—submission No. 2—provides some very compelling insights from his own personal experience with Interpol and other enforcement agencies.

Senator SINGH: You refer to the World Bank Group's Tools and resources to combat illegal wildlife trade report. How is that useful for Australia if we're looking at doing something in a legislative sense to combat this illegal trade?

Ms Bending : It does provide an expert, informed and evidence-based approach to how to monitor, detect and build capacity.

Senator SINGH: So monitoring within—

Ms Bending : Yes.

Senator SINGH: Which obviously isn't happening at the moment.

Mr WOOD: What other countries have bans in place at the borders and, then going further, an internal domestic ban? The UK has I believe a ban at the border and are now looking at a domestic ban.

Ms Bending : France recently announced I believe—

Mr WOOD: If you haven't got it there, you can take it on notice. I'm just trying to work out where Australia fits in.

Dr Daft : A lot of this is very current. A lot of the legislative change is going on right now. The European Parliament has voted to support the ban but hasn't moved forward beyond that. The UK ban is literally about to come into force. I think we do have to take that on notice.

Mr WOOD: We did hear from the department before. If we look at Australia in the big picture, most of the 309 seizures were low level and not organised crime groups. Why do we need to bother changing our laws if it seems to be, in the department's eyes, working at the moment? What's your view on that? You heard the evidence before.

Dr Daft : I have a couple of responses to that. The first is proportion of trade: the point I made a moment ago that, if we don't respond but the rest of the world does, we are more likely to become a destination source, and that is going to become a problem for us. As Ms Bending pointed out, we do have a very multicultural population. We are bringing people in from other parts of the world constantly, so it's going to be an issue there. That is one half of my answer.

The other half of my answer would be, quite frankly, that this is a global issue. It's a transnational problem. So it's a shared responsibility globally, and Australia needs to do its part to actually respond to this globally, no matter how much it's actually affecting Australia itself.

Ms Bending : I have three further points on that. The first is relative to our population size. That would be another issue to bring into that as well. Secondly, you're well versed in law enforcement. You're always going to have a dark figure of crime with these kinds of clandestine activities, and stats will show you a limited perspective; you'll never get a complete picture. Similarly, if I look at a number of the stats that are being reported even in the NGO sector regarding poaching, I can tell you that those poaching stats should be about a third higher because of the way that those stats are constructed. There are things they do not take into account. Particularly out of the South African wildlife department, there have been inconsistent metrics used in relation to what counts as a poaching or a killing. I can give examples if you wish.

Just to finish the point, I guess it also comes down to our elected representatives in Australia. We do have faith in parliament's ability to reflect the values and the attitudes of its constituents. With respect to this issue, I think the Australian public is loud and clear. If I were to base my comments on a lot of the feedback that I've gotten when talking about this issue, the resounding response I'm getting is, 'How is this not already a thing?' So there seems to be some conflation of the CITES regime and the domestic trade aspect, but also morally and ethically.

Mr WOOD: This is a law enforcement committee.

Ms Bending : Yes.

Mr WOOD: The issue is that you pretty much have to look at the illegal market. From your knowledge, of the items coming to Australia from, for example, these 309 seizures, where someone says, 'I didn't know; I thought it was legit,' how much of that is actually coming from poaching? Is there any idea of how big the poaching market is? Obviously that's our concern. We're concerned about the poaching or the illegal side of it.

Ms Bending : Yes. It's very hard to tell. When we're looking at the increasing use of pre-export modification, it is very hard to tell. Tusks and horns are being stained to look as though they are aged. It's very hard to tell. This also goes to the capacity of those that are conducting seizures to actually spot and understand these telltale signs. I refer to Julian Rademeyer, his team at TRAFFIC and their amazing body of work, including their most recent rapid assessment report, Powders, pendants and pathways. We're seeing other types of pre-export modification that really make it tricky. You may see a horn that perhaps may be covered in plastic, saran wrap or aluminium foil, with some toothpaste to disguise smell and avoid detection dogs. These days we're also seeing an increased use of fashioning into discs, beads or bangles.

Mr WOOD: I understand. I suppose the question was more: are you aware of the number of prosecutions overseas for poaching? What we're trying to work out is, factually, how much of this is coming from poaching. I'd say that would be the committee's big concern. If you don't have that information, obviously there may be someone else's expertise. Going further still, are you hearing evidence about these certificates being forged? Obviously, when I look at Australia, I know very well that our department would set a very high bar before they would give out a certificate, but I assume other countries may not be in the same league—or would I be wrong in saying that?

Ms Bending : From what I can understand, there are concerns. Australia has high standards with respect to its import of anything that may be used for scientific research or for educational purposes, and with export likewise. I guess the issue is that we really can't speak to the standards of the export certificates being given at the other end.

As to your question as to numbers of convictions for poaching overseas, I obviously can't speak to every jurisdiction. We are seeing more prosecutions and more severe penalties are being handed out. We are increasingly seeing some deterrent function of that, but I guess we do have this prevailing narrative of low-risk, high-profit—that those that do get through to the market will get profit that will make the risk worth it.

Dr Daft : I think we have to appreciate the governance in the countries where the poaching is occurring, because in a lot of these countries it's almost stateless. There's very little rule of law, so prosecutions aren't going to happen, because the government is barely functioning in the areas such as the Central African Republic. Where poaching is going to be prosecuted it's generally going to be in more established areas, such as South Africa, for example, and countries such as that. We really want to stress caution with statistics generally in this area. It's impossible to get statistics on numbers of poaching for many reasons, including the governance issue and all of the issues that Ms Bending outlined. We want to stress that there should be caution taken with numbers in this area.

Ms Bending : I can't tell you the number of times that we've seen, from the NGO sector and from the academia sector, a report made or information come through and then the person gets bail and then we don't see them again. That happens far too often. Before it even gets to the stage of prosecution or trial commencing there are a number of issues around corruption that, unfortunately, are seeing these things go unpunished in some countries.

CHAIR: Do you have any evidence, anecdotal or otherwise, of organised crime activity in Australia involved in the ivory trade?

Ms Bending : Interestingly, I've only had a few anecdotal stories. There was one comment made by a wildlife ranger when the centre had its capacity building program with LIPI, the scientific group in Indonesia. We had a session on wildlife trade and CITES compliance and allusion was made to groups potentially active in Sydney and Melbourne. I sort of pushed—

CHAIR: Where would that organised crime activity actually fit into to the internal trade in Australia? I can understand the organised crime in Southern Africa, the export of the horns through supply channels and into China but I'm struggling to see where there's an organised crime element actually in Australia.

Ms Bending : In terms of sticking to our expertise, there are other submissions to the inquiry that speak to that through more rigorous experience, again, with enforcement agencies. From my own understanding, the money seems to be in the re-export to Asia. That's just my understanding of the issues.

CHAIR: In your submission you put some details of the changes in the UK. Depending on what you knowledge of that is, how does that compares with where we currently are in Australia? At the border, the laws compared to the UK and Australia would be almost identical?

Ms Bending : I believe that the person best placed to answer that particular question would be the UK representative from IFAW, who did extensive consultation on that particular policy aspect.

CHAIR: In your submission you mention some of the changes in China. Can I ask you some questions on that? Do you have any knowledge of what the legal changes in China have been?

Ms Bending : In terms of legal changes in China, likewise my particular focus is different in terms of compliance with CITES and WTO, and Dr Daft with respect to the conflict element. I believe that there are people better placed in terms of how to answer that question, for example those that actually speak the language and know the culture. My apologies.

CHAIR: Are you recommending that we should adopt laws that prohibit all internal trade within Australia?

Dr Daft : The centre made a very conscious decision, when we put in our submission, that we didn't want to make any specific recommendations. Our concern is just that we think it needs to be an evidence-based, informed approach that we take that does the utmost you actually address our compliance issues under CITES. We didn't want to make specific recommendations. As we said, we just really wanted to provide enough evidence to inform the decision. As I believe Ms Bending said earlier, the UK research they did before they introduced their ban is an excellent resource to see what sort of things need to be considered, and we'd recommend that as one of the key things that should be looked at by the committee.

Senator SINGH: Based on what we've heard this morning, do you see that there is a link between this transnational crime of illegal wildlife trade and the fact that Australia has an unregulated domestic market? Ms Bending, you talked about rhino horn—I think it was rhino horn, or ivory—being painted or discoloured, for example, to come in undetected by our Border Force officials. Obviously the organised crime syndicates know that Australia has an unregulated domestic market, so all they need to do is get it into the country and then it can be sold fairly freely across borders and across states and what have you within the country. That's why the question is put in that sense, whether you see there being some connectivity between the two.

Ms Bending : I would see there being a correlation, together with lack of enforcement. If there's one downside to an inquiry as public as this it's that, whereupon prior there may have been a perception that Australia, with it's tough quarantine laws, would be particularly rigorous with these kinds of offences, it's now known that once you get something in then it's really the wild, wild west in terms of sourcing and what to do with it at that point. It'll be telling to see what happens.

Senator SINGH: You talk about the idea of requiring provenance documentation, including mandatory radiocarbon dating, for any item. Do you see that as a way of assisting in preventing the trade outside of the country?

Ms Bending : I think having traceable and identifiable documentation that will attach itself to a particular commodity would assist, certainly. In respect of domestic law, we currently have no regulation, so some would be better than none—I think we wouldn't be too throwaway in saying this. Dr Daft has some experience with the conflict diamonds example. In relation to other types of natural resource extraction crimes and trafficking, we've seen those certification systems being used in that field as well.

Dr Daft : And it's been generally very effective. There have been some weaknesses since with the Kimberley Process Certification Scheme for the certification of diamonds, but at the time it was introduced it was very effective in actually changing how the market worked.

Senator SINGH: When did that happen?

Dr Daft : I don't want to say it off the top of my head, because it won't be right, but it was in relation to the conflicts going on in Sierra Leone, Liberia and Algeria. It was introduced in the very early 2000s. As I said, it worked quite effectively globally to actually curtail how diamonds were being regulated. But in terms of answering your earlier question, when we listed the potential options that could be done, the provenance issue was probably the minimum standard. A total ban would be at the other end. There is a whole spectrum of things that can be done. Obviously it's for the committee to decide which is the most appropriate for Australia.

CHAIR: As there are no final questions or comments, we thank you for appearing before us today. We thank you for your submission and wish you all the best.