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Illegal trade in fauna and flora and harms to biodiversity

Scope and definitions

The protection of animals and plants is now expressed in the language of conservation and the preservation of biodiversity. The illegal trade in fauna and flora represents the most evident (or most investigated) area of environmental crime involving wildlife and plants, and encompasses the:

  • illegal exportation of native species;
  • illegal importation of exotic species; and
  • unauthorised, internal trade in indigenous and exotic species.

Aside from the cruel nature of the trade (for wildlife), it has the potential to devastate and endanger native faunal and floral populations, either through their removal from habitat or the introduction into Australia of pest species and the biological organisms (eg viruses) they carry. The inflow of exotics carries the additional risk of detrimentally affecting Australia's agricultural and aquaculture industries.

Crimes against nature, however, are not restricted to the illegal trade and include acts of harm that directly target ecological communities. Some acts of harm may only be recognised retrospectively (such as the devastating consequences for Australia's native fauna due to the introduction of the cane toad) or sanctioned at one level but deemed quite illegal in other quarters (such as Japanese 'scientific whaling' in the Southern Ocean). These harms cover:

  • poaching and other unauthorised killing or taking of wildlife and plants;
  • removal of native species from habitat areas;
  • practices that interfere with the viability of individual species and population groups; and
  • acts that produce damage to natural areas, especially those recognised as being of high biodiversity composition or that harbour threatened species.

Illegal native vegetation clearance and logging, and the consequences of these activities, clearly fall under this definition but will be treated separately in later sections.

Laws and regulation

International controls

Convention on International Trade in Endangered Species of Wild Fauna and Flora

CITES is an international agreement to ensure that the trade in wild fauna and flora does not threaten species survival. Presently, 175 parties, including Australia, are signatories to CITES.

Faunal and floral species recognised under CITES are categorised according to their vulnerability (CITES 2009a). Appendix I species are those threatened with extinction and can only be traded under 'exceptional circumstances'. Appendix II species are not at immediate threat but their trade must be controlled to ensure it does not impact on their survival status. The final group, Appendix III species, are protected in at least one country and assistance has been requested of other countries to help control the trade. Any import, export or re-export of listed species is subject to authorisation through a licensing system.

Each signatory has a designated Management Authority, which administers the licensing system and authorises permits, and a Scientific Authority, which advises CITES of trade patterns and its effects on species status. Both authorities in Australia sit within the Australian Government Department of Environment, Water, Heritage and the Arts, which is also responsible for enforcement activities. Import and export permits are mandatory for Appendix I species, export permits for Appendix II species (import permits are required if so designated under national law) and export permits or certificates for Appendix III (CITES 2009b). There are also rules around the use of traded species, how they are obtained and transportation and housing of live animals and plants. As a signatory to CITES, Australia is bound to protect any species listed under Appendix I (ie threatened with extinction) from any form of trade and species listed under Appendices II and III from unauthorised export arrangements.

Convention on Biological Diversity

The Convention on Biological Diversity (CBD) was signed by 150 government leaders at the 1992 United Nations Conference on Environment and Development (otherwise known as the Rio Earth Summit). The conference was held to discuss ways forward in promoting development that did not contribute to the continued deterioration of the environment. Attending governments adopted three agreements at the Summit covering a global action plan of sustainable development (Agenda 21), principles outlining the rights and responsibilities of states (Rio Declaration on Environment and Development) and standards for sustainable forest management (Statement of Forest Principles; CBD 2004). The CBD was subsequently signed as confirmation of governmental commitment to these agreements. The objectives of the Convention (which came into force in 1993), as stated in Article 1, refer to the

conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (Convention on Biological Diversity 1993: 46).

Australia ratified the convention in June 1993. In 1996, the Council of Australian Governments endorsed the National Strategy for the Conservation of Australia's Biological Diversity, prepared by the Australian and New Zealand Environment and Conservation Council to fulfil Australia's obligations under the Convention. The strategy aims to 'bridge the gap between current activities and the effective identification, conservation and management of Australia's biological diversity', both on land and sea (Aust DEST 1996: 2). In light of more recent international level policy advancements and decisions, the strategy is presently under review with an updated strategy endorsed in April 2010.

Other international agreements

In addition to CITES and CBD, other biodiversity/conservation relevant conventions to which Australia is bound include the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), Convention on Migratory Species, Ramsar Convention on Wetlands and the UN Convention to Combat Desertification. Australia also sits on the International Whaling Commission and plays an active role in attempting to end whaling in the Southern Ocean.

One-on-one agreements have been entered into with the governments of the People's Republic of China, Japan and Republic of Korea to protect migratory birds and their environments. The recognition of marked population losses of albatross and petrel species, linked to long-line and other damaging fishing practices, also resulted in the Agreement on the Conservation of Albatrosses and Petrels, to which Australia is a signatory.

National laws

National protection and conservation of Australia's native species and ecological communities is laid out in the EPBC Act 1999 (Cth). The Act also specifies rules and responsibilities relating to the trade in native and exotic fauna and flora, and the protection of migratory species, the marine environment, declared Ramsar wetlands and sites of world and national heritage, as required under the aforementioned international conventions and agreements.

The EPBC Act 1999 (Cth) works in concert with state and territory legislation protecting native fauna and flora (see Table 15). A number of jurisdictions include protective steps in more than one statute. For example, in South Australia, offences regarding the taking, harming, interference or harassment of aquatic mammals is legislated in the Fisheries Management Act 2007 (SA). Tasmania has enacted a separate Whales Protection Act 1988. The EPBC Act 1999 (Cth) and the various state and territory statutes guard against the taking, possessing and harming of fauna and flora, both in and out of protected areas, as well as activities that threaten to, or actually do, damage the communities and habitats in which they dwell. Protection of fish species are further covered in fisheries legislation.

Table 15 Biodiversity and conservation statutes
Jurisdiction Primary statute(s)
Commonwealth Environment Protection and Biodiversity Conservation Act 1999
NSW Threatened Species Conservation Act 1995 National Parks and Wildlife Act 1974
Vic Wildlife Act 1975 Flora and Fauna Guarantee Act 1988
Qld Nature Conservation Act 1992
WA Wildlife Conservation Act 1950
SA National Parks and Wildlife Act 1972 Adelaide Dolphin Sanctuary Act 2005 Fisheries Management Act 2007
Tas Threatened Species Protection Act 1995 Nature Conservation Act 2002 Whales Protection Act 1988
ACT Nature Conservation Act 1980
NT Territory Parks and Wildlife Conservation Act

Any acts or practices that may produce a harmful consequence require authorisation through the issue of a licence and/or permit. Licences/permits can be sought to keep or sell protected and prohibited species, trade in protected or prohibited species or take or interfere with an identified species (mostly for commercial or scientific purposes). Hunting licences must be applied for separately.

Transcribed in conservation statutes are legal provisions regarding processes that must be followed before changes to the environment (usually from development activities) can take place. Such processes are also dealt with in primary planning and development statutes, for example Victoria's Environmental Effects Act 1978. The most common requisite is the species impact statement or similar assessment that is often undertaken alongside heritage assessments. These assessments require an appraisal of the area as to its biodiversity 'value' and threatened species make-up and an evaluation as to how the proposed act will impact on resident ecological communities.

Conservation responsibilities for administering agencies are codified in statutes under management protocols, specifically conservation and biodiversity management, recovery and threat abatement plans for listed tax and habitat areas. In theory, individual plans are to be developed for each recognised threatened species or community but their actual completion has been noted, for New South Wales at least, as somewhat tardy (Baker 2004). For example, of the 800 threatened species listings recognised in New South Wales in 2004, only a minority (ie 90) had had a recovery or threat abatement plan completed or in development (Environmental Defenders Office 2004).

Offences and penalties

Penalties for offences related to the endangering of faunal and floral species are prescribed according to threatened status (see Table 16). Most jurisdictions separate species into two categories of protection–threatened and/or protected or other. In SA's National Parks and Wildlife Act 1972 and under the EPBC Act 1999 (Cth) four (albeit slightly different) categories of vulnerability are described.

A somewhat more complex scheme is employed in Queensland's Nature Conservation Act 1992 where the penalty assigned takes into the account the vulnerability of the species (in this case, extinct in the wild, vulnerable or near threatened, or rare), the number harmed and for more serious offences, the

actual species taken. For example, the most serious offence (a Class 1 offence) involves the harming of:

  • one or more animals that are extinct in the wild; or
  • five or more animals that are vulnerable or near threatened wildlife; or
  • 10 or more animals that are rare wildlife; or
  • one or more echidna, koala or platypus (Nature Conservation Act 1992 (Qld), s 88).

Under the EPBC Act 1999 (Cth), any act deemed to have or likely to have a significant impact on a threatened species or ecological community may be met with a maximum penalty of $550,000 (for an individual) or $5,500,000 (for a body corporate). For a similar offence under state/territory law, the most severe penalties are found in the National Parks and Wildlife Act 1974 (NSW) ($220,000 or 2 years imprisonment, or both (s 118A)) and the Nature Conservation Act 1992 (Qld) ($225,000 or 2 years imprisonment, or both (s 88(1)). Penalties are considerably less in other jurisdictions and neither Western Australia nor Tasmania stipulates a custodial option. A number of jurisdictions also include offences relating to damage of 'critical' or 'essential' habitat.

Penalties for unauthorised import and export, and trade within Australia, of threatened and protected species are similar to, or the same as, penalties for acts of harm. Unauthorised import or export of CITES specimens under the EPPC Act 1999 (Cth) (ss 303CC–DC) are subject to a fine of up to $110,000 or 10 years imprisonment for individuals and $550,000 for corporations.

Table 16: Maximum penalties for selected offences of harming and trade in threatened species
Act and associated selected offencesMaximum penalty

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Unauthorised actions with significant impact on listed threatened species or endangered community prohibited (s 18)

$550,000 (individual)

$5,500,000 (body corporate)

Offences related to threatened species (s 18A)

$46,200 and/or seven years imprisonment (individual)

Action with significant impact on listed migratory species (s 20A)

As above

Killing or injuring member of listed threatened species or ecological community (s 196) or taking member of listed threatened species or ecological community (s 196B) or trading member of listed threatened species or ecological community (s 196D)

$110,000 and/or two years imprisonment (individual)a

Killing or injuring member of listed migratory species (s 211) or taking member of listed migratory species (s 211B) or trading listed migratory species (s 211D)

As above

Killing or injuring cetacean in Australian Whale Sanctuary or waters beyond the outer limits of the AWS (s 229) or intentionally taking cetaceans (s 229B)

As above

Killing or injuring listed marine species (s 254), taking listed marine species or trading listed marine species (s 254D)

As above

Unauthorised action results in the death, injury, taking, trade, keeping or moving of a member of a native species in a Commonwealth reserve

As above

Knowingly damaging critical habitat (s 207B)

As above

Breach of conditions attached to an approval (s 142A)

$13,200 and/or two years imprisonment

Export of CITES specimen without an authorised permit or exemption (s 303CC)

$110,000 and/or 10 years imprisonment

Import of CITES specimen without an authorised permit or exemption (s 303CC)

As above

Cruelty–export or import of specimens (s 303GP)

Two years imprisonment

Contravene conditions of permit (s 303GF)

$66,000

National Parks and Wildlife Act 1974 (NSW)

Harming or picking threatened species, endangered populations or endangered ecological communities (s 118A)

  • Endangered species

$220,000 and/or two years imprisonment

  • Vulnerable species

$55,000 and/or one year imprisonment

Buying, selling or possessing threatened species or endangered population (s 118B)

As above

Unauthorised import or export protected fauna (s 101)

$11,000

Harming protected fauna other than threatened species etc (s 98) or buying, selling or possessing (s 101)

$11,000 and/or six months imprisonment

Damaging critical habitat (s 118C)

$220,000 and/or two years imprisonment

Damage habitat of threatened species, endangered populations or endangered ecological communities (s 118D)

$110,000 and/or one year imprisonment

Approach marine mammal (s 112G(1))

$110,000 and/or two years imprisonment

Approach marine mammal in course in the course of commercial operations relating to the killing of marine mammal (s 112G(2))

$220,000

Wildlife Act 1975 (Vic)

Hunting, taking or destroying threatened wildlife (s 41) and acquiring etc. threatened wildlife (s 45)

$27,221 and/or two years imprisonment

Hunting, taking or destroying protected wildlife (s 43) and acquiring etc. protected wildlife (s 47)

$5,671 and/or six months imprisonment

Unlawful taking of wildlife (s 47D)

$27,221 and/or two years imprisonment

Unauthorised import and export of wildlife (s 50)

$11,342

Killing, taking, injuring etc whales (s 76)

$113,420

Flora and Fauna Guarantee Act 1988 (Vic)

Failure to comply with interim conservation order (s 36)

$11,342

Unauthorised take, trade in, keep, move or process protected flora (s 47(1))

$5,671

Take, trade in, keep, move or process protected flora in contravention of order (s 47(2))

$4,537

Not comply with conditions of licence or permit (s 56)

$5,671

Nature Conservation Act 1992 (Qld)

Taking protected animal and keeping or use of unlawfully taken protected animal (s 88) or plants (s 90)

  • Class 1b, c

$225,000 and/or two years imprisonment

  • Class 2d, e

$75,000 and/or one year imprisonment

  • Class 3f, g

$16,875

  • Class 4h

$7,500

Unauthorised taking etc. of native wildlife in areas of major interest and critical habitats (s 97)

$225,000 and/or two years imprisonment

Contravene conditions of interim conservation order (s 109)

As above

Wildlife Conservation Act 1950 (WA)

Taking or possession of protected fauna (s 16–16A) and flora (s 23E–F)

  • Likely to become extinct or in need of special protection

$10,000

  • Other

$4,000

Certain dealings in fauna (including import; export; sell or take for purpose of sale) (s 17)

$4,000

Unauthorised taking and selling of protected fauna from Crown Land (s 23D)

As above

Unauthorised taking of rare flora (s 23F(6))

$10,000

Fail to comply with provisions of licence (s 25(g))

$4,000

National Parks and Wildlife Act 1972 (SA)

Protection and taking of protected animals and plants (ss 45, 51)

  • Endangered or marine mammal

$100,000 and/or two years imprisonment

  • Vulnerable

$7,500 and/or 18 months imprisonment

  • Rare

$5,000 and/or 12 months imprisonment

  • Other

$2,500 and/or six months imprisonment

Keeping and sale of protected animals (s 58)

$2,500

Unauthorised export or import of protected animals or plants (s 59)

$2,500

Threatened Species Protection Act (Tas)i

Unauthorised take, keep, trade, process or disturb specimen of a listed taxon of flora or fauna (s 51)

$10,000

Whales Protection Act 1988 (Tas)

Prohibit taking etc of whales (s 6(1))

$100,000

Nature Conservation Act 1980 (ACT)

Kill, take, possess, sell or import/export native animal (ss 44–48)

  • Special protection status

$10,000 and/or one year imprisonment

  • Other

$5,000 and/or six months

Taking protected plants (s 51(1))

As above

Damages land in reserve causing serious environmental harm (s 86)

  • Reckless damage

$200,000 and/or five years imprisonment

  • Negligent damage

$150,000 and/or three years imprisonment

  • Damage

$100,000

Damages land in reserve causing material environmental harm (s 87)

  • Reckless damage

$100,000 and/or two years imprisonment

  • Negligent damage

$75,000 and/or one year imprisonment

  • Damage

$50,000

Damages land in reserve causing harm (s 88)

$10,000

Territory Parks and Wildlife Conservation Act 2007 (NT)

Take, interfere, possess or move in or out of state protected wildlife (s 66)

  • Threatened species

$110,000 and/or 10 years imprisonment (individual)

$550,000 (body corporate)

  • Protected other than threatened

$55,000 and/or five years imprisonment (individual)

$250,000 (body corporate)

Take or interfere with unprotected wildlife (s 67)

$55,000 and/or five years imprisonment (individual)

$250,000 (body corporate)

Alter, damage or destroy essential habitat (s 67C(1))

As above

Unauthorised removal of wildlife from essential habitat (s 67C(2))

As above

Fail to comply with conditions of permit (s 67D)

$5,000 and/or six months imprisonment

a: A body corporate can be fined up to 5 times the maximum amount prescribed for individuals

b: Animal: Class 1 offence involves (a) 1 or more animals that are extinct in the wild or endangered, or (b) 5 or more animals that are vulnerable or near threatened wildlife, or (c) 10 or more animals that are rare wildlife, or (d) 1 or more echidna, koala or platypus

c: Plant: Class 1 offence involves (a) 1 or more plants that are extinct in the wild or endangered (b) 5 or more plants that are vulnerable or near threatened, or (c) 10 or more plants that are rare

d: Animal: Class 2 offence is not a Class 1 offence and involves (a) 3 or 4 animals that are vulnerable or near threatened wildlife, or (b) 4 or more, but no more than 9 animals that are rare wildlife, or (c) 10 or more animals that are least concern wildlife

e: Plant: Class 2 offences involves (a) 3 or 4 plants that are vulnerable or near threatened, or (b) 4 or more, but no more than 9 plants that are rare

f: Animal: Class 3 offence is not a Class 1 or 2 offence and involves (a) 1 or 2 animals that are vulnerable or near threatened wildlife, or (b) 2 or 3 animals that are rare wildlife, or (c) 5 or more, but less than 10 animals that are least concern wildlife

g: Plant: Class 3 offences involves 1 or 2 plants that are vulnerable or near threatened, or (b) 2 or 3 plants that are rare

h: Class 4 offence means an offence other than a class 1, 2 or 3 offence

i: Threatened Species Protection Regulation 2006 (Tas) includes the offence of importing and exporting listed taxon (s 6) with a maximum penalty of $10,000

Note: Victorian monetary penalty based on penalty unit amount for 2008–09 ($113.42); Monetary Units Act 2004

Nature and extent

The illegal trade

While the size of the overall trade is unknown, it has been described as small (relative to the trade occurring elsewhere), although 'thriving' (Halstead 1992: 4) and possibly on the increase (Alacs & Georges 2008). The great majority of it, as revealed by detections and seizures, involves the smuggling of wildlife and the following discussion reflects this focus.

Reptiles (snakes, lizards, turtles), birds (primarily parrots) and their eggs, insects (eg scarab beetles) and spiders are most commonly smuggled out of Australia, although scans of international wildlife sales notices revealed that some marsupial species were also available (eg sugar gliders, Burnett's wallaby; IFAW 2005). The prominence of reptiles and birds in the smuggled faunal pool might reflect the international buyer's preference for Australian reptilian and avian species. Much of the international trade relies on the vagaries of consumer choice. It is assumed, here, that the majority of trafficking out of Australia is undertaken for this purpose, whereas other forms of trafficking are for body parts (medicine, bush meat trade), medical research etc. On the other hand, the logistics of smuggling wildlife out of a country such as Australia, with no surrounding land-bordered nations and the presence of an efficient detection and enforcement system, might and probably does deter larger-species smuggling. Further, reptiles, insects and birds eggs are much easier to conceal and transport (Alacs & Georges 2008).

Australian fauna is moved out of the country in one of three ways:

  • carried on the person (often in a specially constructed vest or belt ) or in luggage;
  • via mail or courier service; or
  • through the illegal use of planes (commercial and light) or sea vessels, normally departing from northern locations and by-passing ACBPS (Halstead 1992).

A fourth method is to smuggle Australian wildlife by defrauding the licensing system. Part 13A of the EPBC Act 1999 (Cth) regulates the export of all native species (other than those classified as exempt), all CITES listed species (both native and exotic) and all regulated species for import (ie those species, if brought in, that could harm native species or their habitats). Permits must be sought and approved before trade in any of these species can be undertaken. The use of permits, however, is susceptible to fraudulent behaviour. To what extent, if at all, Australian fauna or flora is exported out of the country using falsified papers has not been examined but once outside of Australia, the illegal transit may rely more frequently on the use of forged or bogus permits. Halstead (1992) describes two possible scenarios:

  • illegal importation into a 'holding' country, followed by export to the destination country using a forged CITES permit citing that wildlife were captive-bred in the holding country; or
  • transit through a non-CITES country, with a subsequent import permit request from a CITES country.

Singapore, Thailand and Laos have all been identified as important transit points in regional wildlife smuggling, including that of Australian wildlife, with buyers based in North America, Europe and Japan. The existence of well-established smuggling routes and experienced traffickers, alongside resource-stretched and poorly motivated enforcement agencies, has fostered Asia's position as a hub for wildlife smuggling (Maneesai 2007; Schaedla 2007). To combat the sustained escalation in smuggling activity in the Asia region, the ASEAN Wildlife Enforcement Network was established in 2006. It is a $12.7b a year operation, to which the Australian Government has committed resources and personnel.

The illicit trade is bi-directional, with exotic species also flowing into Australia. Again, it is largely avian and reptilian species, destined for aviaries and collectors, and for the pet trade. Fish, for the aquarium trade, are also regular illegal imports. Similar smuggling methods are employed, as well as the use of false declarations on import permits. Australia is also a destination for traditional Chinese or complementary medicines, which are known to use body parts from endangered animals. Callister & Blythewood (1995) found significant importation of such medicines into Australia and New Zealand between July 1991 and March 1995—43,000 units (claiming to) contain listed musk, tiger, rhinoceros, leopard and bear species. Joint media releases from the then Ministers for Justice and Customs and Environment and Heritage in 2003 and 2004 further revealed the quantities bought into the country. A routine port inspection of two shipping containers in 2003 discovered 160 kilograms of tiger, snake, pangolin and rhinoceros body parts (Kemp & Ellison 2003). In 2004, a combined ACBPS, AFP and Australian Government Department of Environment and Heritage raid on Chinese medicine stores found large quantities of medicinal products, again with tiger, rhinoceros and bear (bile) as common ingredients (Kemp & Ellison 2004).

An important facilitator of the illegal trade is the Internet, although apparently no regular scrutiny of Internet wildlife sales is undertaken in Australia (Alacs & Georges 2008). As a one-stop shop for popular, distinctive and rare species, the Internet is a more reliable guarantor of sale anonymity. To what extent the Internet contributes to the overall illegal trade is impossible to quantify but the scale of items available is large, both in quantity as well as species representation. Investigations by the International Fund for Animal Welfare found in just one week between 7,000 and 9,000 separate listings of animals or animal-derived products available for sale (IFAW 2008, 2005). Two illegal transactions intercepted by ACBPS are known to have originated via the Internet. One involved the importation of Internet-bought samples of the threatened Hoodia plant (ACBPS 2007a), the other a local Internet sale of endangered Indian star tortoises originally illegally imported into the country (ACBPS 2004a).

Halstead's (1992) examination of the traffic in flora and fauna found that between 1984 and 1992, ACBPS seizures of smuggled wildlife totalled $5m. Between 2002–03 and 2006–07, the total number of wildlife seizures reported by ACBPS followed a U-shaped trend, with the largest number of seizures occurring in 2006–07 (n=7,533), increasing from 3,902 in 2004–05 (Alacs & Georges 2008). Most of these seizures were described as minor breaches with less than one percent described as major seizures (ie those eliciting formal investigation and in some cases prosecution). Between 2000–01 and 2006–07, the number of major detections and seizures ranged from two to 28 and actual prosecutions from six to 14. Almost half (46%) of the prosecutions were for the illegal export of native species and 34 percent for illegal import of exotics (Alacs & Georges 2008). No information was available for the remaining 20 percent of prosecutions although all were for trafficking of birds eggs. Based on prosecution statistics, reptiles were the primary target species (43% of prosecutions, 21% for export and 22% for import), followed by live birds and birds eggs (26 percent, of which 62 percent of these were export offences). Detections reveal some information about the scale of the trade but as Halstead (1992: 2) points out, it is more or less impossible to establish whether these detected cases represent just one percent or 99 percent of the trade. She further argues that those smuggling events that are detected are likely to be the 'least successful' and hence an unreliable measure of the total size of illegal activity.

The illegal trade also occurs within Australia's borders but information on this aspect of the trade is particularly sketchy. Certainly, it seems that reptiles, invertebrates and particularly birds are again the object of the trade, with collectors, fanciers and aviculturists the main culprits. The illegal reptile trade appears to mostly involve exotics, with snakes a favourite item, while the bird trade covers both native and exotic species. Legislative differences between Australian states and territories potentially assist the illegal trade (Halstead 1992). Since some, but not all, states and territories require authorisation before transporting species across borders, transfers are not always recorded. Further, differing species and population compositions from state to state are reflected in differing conservation priorities, with permits to own and trade in a particular species essential in one jurisdiction but not always in the next (Halstead 1992). Exploitation of legislative ambiguities is no doubt a facilitator of the illegal trade.

The structure of the legal industry can also open it up to illicit behaviour. Halstead (1992) uses the example of aviculture in Australia, which spans small, backyard aviaries to large breeding operations involving hundreds of birds. The extensive number of permits affects how well regulatory authorities can monitor each holding and in the absence of other, usual forms of scrutiny (eg consumers), admixing of the licit with the illicit is made possible (Halstead 1992). A final complexity is how to identify, with respect to native birds, those that are legal and those that have been caught in the wild, or hatched from eggs raided from nests.

Perpetrators

Individuals acting alone or associated in small, semi-organised groups are considered the primary perpetrators of the illegal trade in fauna and flora occurring in Australia, although there is evidence, both anecdotal and confirmed, of more sophisticated organisational involvement. The former includes references to the possible role of outlaw motorcycle gangs (Blindell 2006), who if not occupied with the supply end of the transaction, are certainly important consumers, particularly of exotics (Richard Janeczko, Customs Investigations National Manger cited in Peddie 2007). Examples of organised criminal activity are limited but it does occur. For example, in 2004, a combined Commonwealth and state agency operation detected an extensive bird trafficking ring, with illegal aviaries based in four states (New South Wales, Victoria, Queensland and Western Australia), and links into southern Africa and southeast Asia (ACBPS 2004b). Thousands of birds and eggs, both native and exotic, were seized, with one offender employed with a WA authority responsible for the regulation of that state's aviculture industry. Corruption in regulatory agencies has been cited before. A senate inquiry into the commercial utilisation of Australian native wildlife noted accusations in two depositions of a link between wildlife trafficking and official corruption occurring in three state government departments, but no charges were laid (Senate Standing Committee on Rural and Regional Affairs and Transport 1998).

Trafficking of Australian fauna and flora (and exotic species into the country) involves both Australian and foreign nationals but with limited information, it is difficult to ascertain what proportion of the total field they actually represent. Table 17 lists ACBPS interceptions of trafficking 'mules' and recipients of imported fauna or flora that were reported in media releases between 1 January 2004 and June 2009. This list suggests that the nationality of couriers (where stated) is fairly evenly split between Australian and foreign nationals. Some of the courier work is being done by international tourists; for example, many of the Japanese nationals intercepted and prosecuted for couriering native species out of Australia were tourists collecting 'pets' for themselves. These incidents represent acts of spontaneity but the factors behind other smuggling events are not clear (see Table 17).

Note: n/a=not applicable

Source: ACBPS 2009; 2008a, 2008b, 2008c, 2008d, 2008e, 2008f, 2008g, 2008h, 2008i, 2008j; 2007a, 2007b, 2007c; 2006a, 2006b, 2006c, 2006d, 2006e, 2006f; 2005a, 2005b, 2005c, 2005d, 2005e, 2005f, 2005g, 2005h; 2004a, 2004b, 2004c, 2004d, 2004e, 2004f, 2004g, 2004h, 2004i, 2004j, 2004k, 2004l, 2004m

 

Other conservation harms

With its international connections, wildlife trafficking is the most evident and publicised of environmental crimes involving native Australian species. But it is not the only offence where fauna and flora are the casualties. As stated earlier, the EPBC Act and the various state and territory statutes protect against the taking, possession and destruction of fauna and flora, in and out of protected areas, as well as activities that threaten to, or actually do, damage the communities and habitats in which they dwell. Some of this arises from otherwise deliberate behaviours such as trapping and killing of species (eg unauthorised shooting of kangaroos and wallabies) or from habitat destruction which then impacts on species viability and diversity. The latter regularly occurs in the pursuit of development, without fulfilment of environmental and species impact assessments. A recent example detected by the Commonwealth was a case of unauthorised slope grooming and expansion work undertaken in the ski fields of Mount Buller, Victoria which was found to have impacted on the known habitat area of the Mountain Pygmy-Possum (Aust DEH 2006). The Mountain Pygmy-Possum is listed as endangered under the EPBC Act and the Flora and Fauna Guarantee 1988 Act (Vic) and the upgrade and expansion was undertaken without approval.

Published data on committed conservation harms is more or less absent and few of the administering government departments publish information on detected offences against conservation statutes. Only the NSW Department of Environment, Climate Change and Water's annual reports provide any description of the main offences committed and these refer to completed prosecutions only. A total of 75 charges were laid and prosecuted in New South Wales between 1 July 2003 and 30 June 2009; just over a quarter (26%) referred to the harming of protected fauna, a fifth for a breach of licence conditions, 13 percent for the possession of protected fauna and 13 percent for selling protected fauna (see Table 18).

Table 17: Australian Customs detected illegal exports and imports of fauna and flora, 2004–08
Illegal exports

Species Method Nationality of courier Penalty
160 endangered fungi and fungal spore samples In luggage German $3,000 fine and $260 costs
Two Rottnett Island bobtails n/a intercepted before reached departure port Japanese No details
1,200 tiger beetles, 160 water beetles and 50 other beetles In luggage (to United States) American n/a
15 Australian leaf geckos Post (to Czech Republic) Unknown n/a
Two rose breasted galah and two gang-gang cockatoo eggs On person (to Thailand) Australian $25,000 fine
Eight sulfur-crested cockatoo, nine Major Mitchell and seven galah eggs On person (to South Africa) Australia 18 months imprisonment, 12 month $1,000 good behaviour bond
Six Shingleback lizards In baggage Japanese $24,000 fine plus $7,000 fine under Western Australia state legislation
23 native bird eggs (Major Mitchell, gang-gang cockatoo and red collared lorikeet) On person (to Switzerland) Australian Two years imprisonment
24 oblong turtles and one shingleback lizard Post (to Japan) Japanese $24,600 fine
50 shingleback lizards, one inland bearded dragon and one eastern long-necked turtle Post (to Japan) n/a n/a
16 native birds (species not disclosed) In luggage (to South Korea) South Korean $5,000 fine and three year good behaviour bond
Illegal imports
Species Method Nationality of courier/recipient Penalty
Two pigeons, birds eggs and plant seeds On person (from Dubai) Australian n/a
Tupai (squirrel) Post (from Indonesia) Unknown n/a
Two green tree pythons, two royal pythons, one reticulated python and tarantulas Post (from United States) Unknown n/a
13 live fish (regulated species) In baggage Chinese n/a
2 Asian finches In baggage Singaporean n/a
4 green tree pythons Post (from South Africa) South African $3,000 fine, plus $300 costs
10 West African parrot eggs On persons (from Netherlands via Hong Kong) Dutch Four months and 25 days imprisonment
51 catfish plus one Asian Arowana (CITES listed) On person (from Singapore) Australian Nine months community service
23 eggs (macaws, African green parrot, eclectus parrot and CITES listed moluccan cockatoo) On person (from Bangkok) French Two years
One green tree python Unknown (abandoned at airport) n/a n/a
Two emerald green tree boas Post (Sweden) n/a n/a
Three fish and aquarium plants In baggage (Taiwan) n/a n/a
39 reptiles (green tree pythons, albino pythons, iguanas, frilled neck dragons, slider turtles, monitor lizards) In baggage (from Singapore/Thailand) Japanese Three and a half years imprisonment
52 parrots eggs On person (from Singapore) Australian One year, with two years suspended on good behaviour
16 Asian arowana (CITES listed) In baggage (from Vietnam) Vietnamese
Four North American loggerhead musk turtles In baggage (from Hong Kong) Australian n/a
Nine parrot eggs On person (from South Africa) Australian n/a
Two Turkish tumbler pigeons In baggage (from Singapore) Australian $1,000 fine plus $800 costs
39 cycad plants (CITES listed) Shipment (from South Africa) Australian $15,000 fine, plus 9 month suspended sentence
26 spiders Post (from Colombia) n/a n/a
26 spiders (including goliath bird-eating spider) Post (from Denmark) n/a n/a
41 parrots eggs On person (from Singapore) Malaysian Two years, three months imprisonment
19 coloured pythons On person (from Singapore) Australian n/a
Table 18: Selected prosecuted charges under the National Parks and Wildlife Act 1974 (NSW), 1 July 2003–30 June 2009
OffenceNumber prosecuted

Harm protected fauna

25

Use substance to harm protected fauna

1

Possess protected fauna

12

Sell protected fauna

12

Import protected fauna

3

Failure to deliver up protected fauna when requested

1

Possess threatened species

1

Harm animal in park

1

Approach marine mammal

4

Pick plant that is part of a threatened species

10

Possess protected native plant

1

Sell protected native plant

1

Damage known habitat of threatened species

5

Breach licence conditions

19

Source: NSW DECC 2009a, 2008, 2007a; NSW DEC 2006a, 2005a; 2004

 

Reporting and detection

Border seizures and chance findings from routine inspections, supported by intelligence-gathering and tip-offs, are the main methods by which illegal wildlife/plant imports and exports are detected (Alacs & Georges 2008; Halstead 1992). Customs officers are at the forefront of these activities, working in concert with Biosecurity Australia, Commonwealth or state/territory conservation officers, state/territory police and the AFP. Most of the detections occur during passenger or baggage checks (arrival and departure) or screening of postal articles as they enter the country, but some have been revealed following random inspections of cargo. The aforementioned discovery of 160 kilograms of tiger, snake, pangolin and rhinoceros body parts in imported Chinese medicines was revealed this way. Notifications of suspicious behaviour are also relied upon and one documented case led to the arrest of three tourists observed behaving suspiciously when visiting Rottnest Island in Western Australia They were subsequently found in possession of two endemic Rottnest Island Bobtails (ACBPS 2008g). On occasion, raids are undertaken involving the agencies listed above. Two high-profile raids included the targeting of Chinese medicine retailers in Sydney, Melbourne and Brisbane, where medicines sold were found to contain parts from at least three CITES-listed species (Kemp & Ellison 2003) and aviaries in four states, suspected of laundering wild caught birds and trafficking of native and exotic avian species (ACBPS 2004b).

Detection is also reliant on compliance checking of permits and licences that are required to possess, sell or trade protected (native) and exotic species. Conservation officers (from either the relevant Commonwealth or state/territory agency) are obliged to not only check that permit or licence conditions are being respected but that mandatory record-keeping is complete and up-to-date. Monitoring is especially important to verify that exporters or importers (including collectors) are trading the same taxa they have stated on their export/import applications. Conservation statutes grant conservation officers with powers of entry, search, seizure and arrest, and offences of obstructing an enforcement officer exist in each jurisdiction.

Uncovering illegal behaviour and irregularities cannot depend solely on the work of compliance and enforcement officers but must also involve intelligence supplied by key and observational guardians (Halstead 1992). For example, intelligence from industry groups, ornithologists and landowners can all assist exposing suspected corrupt behaviour in the aviculture industry (Halstead 1992), collectively identifying where fraudulent practices might or do exist, trends in prized species and observed transgressions onto land in the vicinity of nests or 'coveted' species. For more random acts of harm, such as interfering with migrating whales or indiscriminate, recreational shooting of kangaroos, detection tends to arise from reports from the public or chance observation.

Wildlife forensics

To provide the ultimate evidence of illegal activity requires a more precise procedure for identification. One such procedure is DNA forensics. While its application in Australia is in its infancy, there is genuine interest in its application becoming more widespread). DNA forensics (often referred to as wildlife forensics) is a still relatively new but increasingly used tool in the detection of (primarily) wildlife crime, however, it can also be used to identify illegal trade in CITES-listed plants and tropical timber. It provides techniques that not only identify what the species is, but potentially 'who' the specimen is (eg its relatedness to other individuals) and 'where' it came from (ie the geographic origin; Ogden, Dawnay & McEwing 2009; Ogden 2007).

Most applications of DNA forensics have been for species identification, to gain evidence of poaching, or the threatened species status of animal or plant derivatives found in imported foodstuffs (eg Chapman et al. 2003; bush meat see Ogden 2007; shark fin see Shivji et al. 2002), traditional medicines (Hsieh et al. 2003; Peppin et al. 2008; Wetton et al. 2004), and other tradeable commodities (eg shatoosh shawls see Ogden 2007; CITES-listed timber see Ogden et al. 2008). It is also regularly used in the testing of whale meat sold in Japanese and Korean markets, and has revealed the continuing sale of meat from endangered species (such as humpback and fin whales) alongside 'legal capture' species (Baker et. al. 2000; Baker, Funahashi & Steel 2008). These market surveys have also provided evidence for over-quota takes of so-called 'legal capture' species.

Another recognised application is the detection of wild animals laundered into the captive, otherwise legitimate population, of which birds are especially vulnerable. DNA profiling enables the 'identity' and relatedness of suspect birds to be compared with others in the captive group, using a 'parentage test' to verify or disprove captive-bred status. Such tests used in the United Kingdom to confirm the parentage of birds of prey (usually Peregrine falcon) chicks led to the successful exposure (and subsequent prosecution) of rogue bird keepers and a reduction in the taking of wild born eggs and chicks from known nest sites (PAWS & DEFRA 2005; Shorrock 1998). Parentage tests have been used in Australia and parts of Europe as well to confirm the legality of birds housed and traded between aviaries (Ogden, Dawnay & McEwing 2009).

Individual and geographic origin identification is still to be widely used, mainly because of the absence of comprehensive reference data. There are a couple of published examples of individual identification profiling being used to establish cases of poaching. One describes the matching of carcass DNA with information collected on wildlife DNA database (Guglich, Wilson & White 1993) and another of comparing blood found on weapons used in poaching with poached animals (Lorenzini 2005). Admixing of illegal and legal meat supply may also be thwarted by this technique, as suggested by tests on minke whale meat on sale in Norway (Palsbøll et al. 2006).

There has been some, albeit limited, use of wildlife forensics in Australia and its evidentiary capacity is recognised by enforcement agencies. The AFP is reported to have funded research projects examining the development of DNA technologies in relation to wildlife crime (Alacs & Georges 2008) and results from DNA profiling presented in cases of illegal importation and laundering of wild birds has led to successful prosecutions. Interestingly, one of the first instances of investment in DNA profiling by a commercial timber operation is also occurring in Australia (see section Illegal logging). Nonetheless, while there is faith in the important role of DNA forensics in uncovering wildlife crime, consideration must be extended to the practicalities and financial viability of such a tool (Haywood 2007) and the acceptability and attitude of Australian courts to DNA evidence being used in cases of wildlife crime. To assist in examining these considerations, an Australian Wildlife Forensics Network was recently established as a subsidiary of the AELERT and National Institute for Forensic Sciences (Alacs & Georges 2008), and was modelled on the UK Partnership for Action Against Wildlife Crime Forensics Working Group (Ogden 2007).

Sanctioning

Alacs & Georges (2008) note that while penalties for breaches against Australian wildlife legislation are more severe than in countries such as the United Kingdom and United States, actual sentences handed down tend to be much more lenient. As stated earlier, persons found to have breached the EPBC Act may face a fine of up to $110,000 (or $550,000 for corporations) or 10 years imprisonment. However, custodial sentences are not commonly given and fines are usually considerably less than the value the faunal or floral species would have made on the black market (Alacs & Georges 2008). Analysis of prosecutions recorded in the Australian Customs Wildlife Prosecutions database from 1994 to 2007, found that 70 percent resulted in a fine, 10 percent in a combined custodial and pecuniary penalty, seven percent in a custodial sentence only and six percent in a good behaviour bond (Alacs & Georges 2008). The severity of custodial sentences, while more or less stagnant in number, have shown some increase in more recent years; the average custodial sentence between 1994 and 2003 was 10 months then between 2004 and 2007 it rose to 28 months (Alacs & Georges 2008). No information was provided in Alacs and Georges' paper on the median fine given. The largest fines were $30,000 in 1998 for the attempted export of 19 parrot eggs and $24,600 for the attempted export of 24 long necked turtles and one shingleback lizard.

Statistics on sanctions for breaches against state and territory conservation legislation is available for New South Wales, Queensland and Western Australia but not directly comparable due to the nature of the data published. Administrative sanctions are the norm with legal action pursued in a minority of cases. The Qld EPA (now amalgamated with the Department of Natural Resources and Water into the Department of Environment and Resource Management) issued 1,657 infringement notices totalling $282,690 in fines during 2003–08, at the same time completing 25 prosecutions with two custodial sentences secured and total fines of $157,915 imposed (Qld EPA 2008, 2007, 2006, 2005, 2004a, 2003). In the two year period between 30 June 2006 and 30 June 2008, the WA DEC issued 687 infringement notices for a total of $24,835, as well as 687 cautions and 72 letters of warning and recorded 80 convictions with fines totalling $36,355 (WA DEC 2008a, 2007). Neither agency reported on the magnitude of the penalty against the type of offence committed. The NSW DECC did however and the largest fines were for cases of harming or possessing threatened native species, with one case resulting in a $130,000 fine for a charge of taking a threatened plant species (see Table 19). Fines handed down for harming protected fauna were variable (between $300 and $9,000) as they were for the possession, selling or importation of protected fauna. No custodial sentences were given and the majority of fines were well below the maximum prescribed.

Table 19: Selected offences and assigned penalties for prosecuted offences against the National Parks and Wildlife Act 1974 (NSW)
Offence Maximum penalty Penalty
Fauna
Harm protected fauna $11,000 and/or six months imprisonment $300–9,000
Use substance to harm protected fauna as above $600
Possess protected fauna as above $100–1,000
Sell protected fauna as above $350–1,100
Import protected fauna as above $400–880
Possess threatened species $220,000 and/or two years imprisonment $5,000
Approach marine mammal $110,000 and/or two years imprisonment $400–5,000
Flora
Pick plant that is part of a threatened species $220,000 and/or two years imprisonment $10,000–130,000
Possess protected native plant $11,000 and/or six months imprisonment $2,500
Sell protected native plant as above $2,500
Other
Breach licence conditions $250–3,500

Source: NSW DECC 2008, 2007a; NSW DEC 2006a, 2005a, 2004

 

Provisions are made in some statutes for alternative penalties or 'compensation'. Unfortunately, few examples are available, even for Victoria where such penalties are regularly used for pollution offences. One available example refers to the previously mentioned case in the Victorian ski fields where slope modifications impacted on endangered mountain pygmy possum habitat. In this case, the Australian and Victorian Governments negotiated an alternative outcome with the offending parties. The agreement created a legally-binding plan of action that included committing $350,000 towards habitat rehabilitation, the establishment of a recovery plan and the funding of research projects.

Summary

With the highest extinction rate recorded for any country, the protection of Australia's remaining unique faunal and floral composition is recognised as being of paramount importance. Gradations of protective status are transcribed in all Commonwealth and state/territory conservation legislation, which establishes harms as behaviours related to the keeping, selling, trading, taking, interfering, maiming or killing a protected (or other so designated) species. Laws and management plans further acknowledge the place species occupy within the broader ecological community and subsequently recognise harms as not just impacting on the viability of the individual species but on the greater ecology.

Nonetheless, there still exists quite considerable variation in conservation laws. In jurisdictions such as New South Wales, Queensland, South Australia and the Northern Territory, the maximum penalty for taking a highly endangered species is a fine in the hundreds of thousands (with a custodial sentence of 2 years, or 10 years if the harm is committed in the Northern Territory). This is in contrast with Western Australia, Tasmania and the Australian Capital Territory where a similar offence incurs a pecuniary penalty of just one-tenth of this. However, even with strict penalties in place, imposing fines anywhere near these maximum provisions is rare. For offences related to the illegal trade, these fines come nowhere near the value these species would have made if sold on the market (Alacs & Georges 2008).

The illegal trade in fauna and flora has generated a lot of attention overseas but comparatively little in Australia. There have been different interpretations as to the size of the export trade, which mostly involves reptilian, avian and invertebrate species. The limited number of published studies available indicates that compared to neighbouring countries, the illegal trade in Australia is probably a much smaller enterprise. A lot of this is undoubtedly due to the strict nature and enforcement of Australia's conservation laws, but the use of the Internet as a facilitator of the trade and the suspected involvement of more sophisticated operatives, could mean the problem is much larger than the data indicates. Analysis of ACBPS detection data has revealed an upswing in detections in recent years, although much of this was for minor infringements.

Establishing how much illegal trade is occurring within Australia is much more difficult, as is the incidence of harms perpetrated outside the trade cycle. Harms to Australia's natural heritage that are indirectly linked to, or quite separate from, the illegal trade mostly concern 'assaults' on protected species. Which species are affected and what these harms constitute could not be discerned from the available data but made up the largest number of prosecuted offences. While apparently small in number, these acts of harm, done often, can seriously threaten local population viability and for a species already seriously threatened, produce considerable damage.