 
  WORLD TRADE  
ORGANIZATION  TN/TE/W/45 
12 October 2004 
 (04-4263) 
Committee on Trade and Environment 
Special Session Original:   English 
 
 
 
PARAGRAPH 31(I) OF THE DOHA DECLARATION 
AUSTRALIA’S EXPERIENCE 
 
Submission by Australia  
 
Paragraph 31 (1)  
 
 
 The following communication, dated 11 October 2004, is being circulated at the request of the Delegation of Australia
. 
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I. INTRODUCTION 
1. In the initial stages of the discussion of the paragraph 31(i) mandate in the Committee on 
Trade and Environment in Special Session (CTE SS) , Australia suggested a three-phase process for 
structuring our negotiations on the relationship between existing WTO rules and specific trade obligations (STOs) set out in multilateral environm ental agreements (MEAs) (TN/TE/W/7).  We were 
pleased that this kind of approach was supported by  many Members who agreed that a balanced and 
practical structure to our discussions would be the best way to deliver a mutually supportive outcome 
in line with the mandate agreed by Ministers in Doha. 
2. In line with this approach, Members have had an interesting and useful first phase discussion 
in the CTE SS where most member s have sought a practical discussion of the identification of STOs 
in MEAs.  This leads naturally into a second ph ase exchange on Members’ experiences in negotiating 
and implementing STOs.  Indeed, many Member s have drawn on their national experiences in 
offering views in their submissions and statements  to the CTE SS on the identification of STOs. 
3. This paper is a further contribution to the practical discussion we have begun on sharing 
experiences on negotiating and implementing STOs.  It builds on the submissions put forward by 
Hong Kong, China (TN/TE/W/28) and the United Stat es (TN/TE/W/40) and offers further national 
experiences that can help improve our understanding  of STOs in MEAs and their relationship with 
WTO rules.  We have found both these papers very  useful and hope that Members will equally find 
our submission of value in moving our negotiations forward within the terms of the very specific 
mandate under paragraph 31(i). 
4. This submission provides some observations on Australia’s national experience in negotiating 
and implementing STOs in relation to the Basel Conve ntion, the Montreal Protocol and CITES.  We 
have chosen to focus on these three MEAs becau se, of the six MEAs the Committee has generally TN/TE/W/45 
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 agreed contain STOs
1, the period of time these three have been in force means that the largest number 
of Members will be able to relate to these experiences 
II. AUSTRALIA’S NATIONAL EXPERIENCE IN NEGOTIATING AND 
IMPLEMENTING INTERNATIONAL AGREEMENTS 
5. Australia agrees with the US that national level coordination between different domestic 
agencies and stakeholders involved with internatio nal agreements is key to achieving compatibility 
between countries’ different international obligations  and their smooth domestic implementation.  As 
with many Members, Australia has established pro cesses to ensure this national coordination occurs 
during each of negotiation, ratification and implemen tation of an international agreement, including 
MEAs and the WTO Agreement. 
6. During the negotiating stage , relevant Australian Federal G overnment Departments contribute 
their views to the development of an Aust ralian position on negotiating issues through an 
inter-departmental committee process.  Informatio n is shared between departments through this 
process and the different policy perspectives and knowledge of existing commitments that 
departmental representatives bring to the discussi on contributes to a unified whole-of-government 
position on these issues.  Key departments involved in  this process will include representatives on the 
Australian delegation to internati onal negotiating sessions to ensure that their expertise is on hand to 
respond to developments.  Consultation with Stat e and Territory Governments (who will often be 
responsible for implementation of certain of Aust ralia’s obligations cont ained in international 
agreements under Australia’s federal system), st akeholders (such as NGOs and industry) and the 
general public is also part of th e development of Australian positions. 
7. When considering ratification  of an international agreemen t, under Australia’s Constitution 
treaty-making is the formal responsibility of the Execu tive rather than the Parliament.  As part of an 
enhanced consultation process, however, a treaty is tabled in both Houses of the Australian Parliament 
prior to binding treaty action being taken and is reviewed by Parliament’s  Joint Standing Committee 
on Treaties (JSCOT).  The treaty is tabled with an accompanying National Interest Analysis (NIA) 
which notes the reasons why Australia should become a party to the treaty.  NIAs include a discussion 
of the foreseeable economic, environmental, social and cultural effects of the treaty action;  the 
obligations imposed by the treaty;  its direct fi nancial costs to Australia;  how the treaty will be 
implemented domestically;  what consultation has oc curred in relation to the treaty action and whether 
the treaty provides for withdrawal or denunciation.   Treaties which affect business or restrict 
competition are also required to be tabled  with a Regulation Impact Statement. 
8. A whole-of-government position is necessary fo r the NIA, which, as with the negotiating 
process described above, involves inter-departmen tal coordination and consultation with the 
Australian States and Territories, stakeholders and th e public.  Accordingly, if a decision is taken to 
proceed to ratification, all affected are aware of the requirements in advance of ratification, resulting 
in the timely implementation of obligations. 
9. A similar coordination and consultation process ope rates with respect to Australia’s domestic 
implementation  of our international commitments, tailo red to the agreement and obligation in 
question.  Some examples of this are given belo w for selected STOs in the three nominated MEAs. 
                                                      
1 These six MEAs are:  Convention on Internationa l Trade in Endangered Species of Wild Fauna and 
Flora (CITES), Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), 
Basel Convention on the Control of Transboundary Movements of Hazardous Wast es and their Disposal 
(Basel Convention), Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety 
Protocol), Rotterdam Conven tion on the Prior Informed Consent Proc edure for Certain Hazardous Chemicals 
and Pesticides in International Trade (PIC), Stockhol m Convention on Persistent Organic Pollutants (POPs).  TN/TE/W/45 
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 III. AUSTRALIA’S EXPERIENCE IN IMP LEMENTING THE BASEL CONVENTION 
10. The Basel Convention contains a number of STOs with regard to the transboundary 
movement of hazardous waste.  In Australia’s view, these include Articles 4.1 (b, c, e, g), 4.6, 4.7 (a, 
b, c), 6.1-6.5 and 6.9.  In Australia, the Basel Convention is implemen ted by the Hazardous Waste 
(Regulation of Expor ts and Imports) Act 1989  and its Regulations.  As with many parties to this 
Convention, Australia implements these STOs and ot her obligations through a permit system.  Under 
the Act, the decision to grant or refuse a permit is made by the Minister for the Environment and 
Heritage, or a delegate. 
11. In reaching a decision on whether or not to issue a permit to export or import hazardous 
waste, the Minister must have regard to certain matters set out in the Act or Regulations, which, 
inter alia , implement the STOs noted above.  Advice on these matters is formulated by the Australian 
Department of the Environment and Heritage (D EH) in a technical and administrative policy 
framework developed in consultation with the H azardous Waste Act Policy Reference Group.  This 
group meets at least twice a year.  It is a consu ltative forum for major stakeholders including up to 
thirty representatives of industry, trade unions, environment groups, overseas development groups and 
other government agencies.  The group provides advice to DEH on the operation of the Hazardous 
Waste Act  and related issues arising from Australia’s  implementation of the Basel Convention. 
12. On occasion, specific issues arising in a permit application may also require interdepartmental 
consultation to achieve a whole of government view .  Issues which may have implications for our 
multilateral or bilateral trade obligations are referred  to the Department of Foreign Affairs and Trade 
(DFAT) and other Departments as necessary for advice. 
13. In forming advice for any permit application, DE H regularly consults with State and Territory 
governments to ensure that any movements are condu cted in an environmentally sound manner and 
are otherwise consistent with the requirements of the Hazardous Waste Act  and with Australia’s 
international obligations. 
IV. AUSTRALIA’S EXPERIENCE IN IMPLEMENTING CITES 
14. In Australia, the Environment Protection and Biodiversity Conservation Act 1999 fulfils 
Australia’s legislative requirements as a signatory party to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES).  It controls the movement of wildlife, wildlife 
specimens and products made or derived from wildlife into and out of Australia. 
15. CITES facilitates trade in endangered species by establishing a regulated system of 
assessment of detriment to determine whether trade in particular species or specimens of a species 
may proceed without endangering the survival of the species.  Without this system of assessing 
detriment, many countries may be reluctant to perm it trade in some endangered species, in fear of 
contributing to the species’ decline. 
16. In some cases, the ability to trade in an endangered species can encourage its conservation.  
Regulated trade can contribute to the long-term survival of the species by providing an economic 
incentive to preserve the species.  Th e case of Australian saltwater crocodiles is an example where the 
wild-harvest of eggs and hatchlings provide an incen tive to land owners to maintain crocodile habitat. 
17. Articles III.2 and IV.2 of CITES  require a non-detriment finding before an export permit can 
be issued.  These are clearly STOs.  In the case of  commercial exports, Australia implements this 
requirement by assessing the operation the specimens were sourced from.  Specimens can be sourced from a captive breeding, artificial propagation or  wild-harvesting operation.  In the case of 
non-commercial permits, the non-detriment finding is made for each permit. TN/TE/W/45 
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 18. Each application for approval of an operation or permit for import or export is considered on 
its merits by the Minister for the Environment and Heritage, or a delegate, on the basis of advice 
prepared by DEH.  This advice will include an eval uation of relevant scientific and technical evidence 
and is prepared after consultation, where necessary,  with relevant scientific experts and government 
agencies.  There is no requirement for a national level export quota for every species traded, however 
in some cases, such as for the saltwater crocodile, the Department  negotiates annual wild-collection 
quotas with State or Territory authorities. 
19. The establishment of sound scientific national pr actices that include consideration of species 
management at the national level – both wild popul ations and captive breeding/artificial propagation 
programmes – are integral to Australia meeti ng our CITES and other inte rnational obligations. 
V. AUSTRALIA’S EXPERIENCE IN IMPLEMENTING THE MONTREAL 
PROTOCOL 
20. Article 4B.1 of the Montreal Protocol on S ubstances that Deplete the Ozone Layer (Montreal 
Amendment) obliges Parties to develop a licensing  system for imports and exports of controlled 
ozone depleting substance.  This is an obligation that most members have agreed is an STO.  In 
Australia, the Montreal Protocol is implemented through the Ozone Protection and Synthetic 
Greenhouse Gas Management Act 1989  (the Act).  The licensing system under the Act is 
administered by DEH.  In developing the syst em, DEH drew upon the expertise and experience of 
numerous government departments, including DFAT.  This collaboration ensured that the current 
licensing system is not only designed for consiste ncy with Australia’s trade obligations under the 
Montreal Protocol, but also its WTO obligations.  For example, in deciding whether to grant a licence 
to access Australia’s controlled substance import or e xport markets, the Minister “must have regard to 
Australia’s international obligati ons … in relation to the manufactu re, importation or consumption of 
scheduled substances.”
2 
21. The licensing system facilitates equitable acce ss by all Protocol Parties to Australia’s 
controlled substances import and export markets, and equitable treatment of domestic and foreign 
actors.  Prospective controlled substances importe rs and exporters from any Protocol Party must 
satisfy the same criteria, which must also be met by any prospective domestic manufacturer of controlled substances. 
22. The quantitative annual restrictions of the licen sing system are instrumental to Australia’s 
compliance with the Protocol’s primary cont rol measures to phase out controlled substance 
production and consumption.  The licensing system facilitates non-discriminatory administration of 
these quantitative restrictions by accommodating the full or partial transfer of quotas at any time between persons that meet the licensing criteria. 
VI. FEATURES OF STOS THAT FACILITATE THE MUTUALLY SUPPORTIVE 
RELATIONSHIP BETWEEN MEAS AND WTO RULES  
23. The US paper (TN/TE/W/40) concludes that certain features of STOs have contributed to a 
mutually supportive relationship between MEAs a nd WTO rules.  The features the US identifies 
include “science-based procedures by which the export restrictions can be adjusted in light of 
advances in knowledge or other changes in releva nt conditions” and “proce dures for changes to the 
scope of the export restrictions over time that are both inclusive and appropriately flexible”.  The US draws upon the PIC, POPs and CITES Conven tions to illustrate these conclusions. 
                                                     
 
2 Under the Act, “scheduled substances” are equivalent to the Protocol’s references to “controlled 
substances”.   TN/TE/W/45 
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 24. Australia considers that the success of the Basel  Convention and Montreal Protocol can also 
be largely attributed to their science-based, par ticipatory approaches to decision-making.  Some 
examples of experience with the Montreal Protocol are provided. 
Science-based procedures  
 
25. Decisions to add substances to the Montreal Protocol’s list of controlled substances are 
informed by scientific and technical assessment of prospective controlled substances prepared by the 
Protocol’s Scientific Assessment Panel (SAP) and Technology and Econom ic Assessment Panel 
(TEAP) of the Protocol.  The Panels comprise experts from throughout the world. 
26. The assessment process is triggered by a Party, or the SAP or TEAP, notifying the Protocol’s 
Secretariat that a substance is potentially ozone de pleting and likely to be subject to substantial 
production.  The Secretariat then requests all Parti es to report information on whether the substance is 
produced or sold in their territories, the quantities involved, the purposes for which the substance is 
marketed or used and, if possible, the names of  the producers and distributors.  Concurrently the 
Secretariat requests the SAP and TEAP to prepare scientific and technical assessments of the 
substance, where relevant drawing on information provi ded by the Parties.  It is on the basis of these 
assessments that the Parties decide whether a substa nce poses a significant threat  to the ozone layer, 
and therefore warrants addition to the Pr otocol’s list of controlled substances. 
Inclusive and flexible procedures for change  
 27. Given the magnitude of its potential impact on Pa rties, a decision to add a substance to the 
Montreal Protocol’s list of controlled substan ces constitutes an Amendment to the Protocol.  The 
impact on Parties is potentially significant not only  because it expands Parties’ obligations, including 
their obligation to phase out produc tion and consumption, but also because it represents the first step 
towards restrictions on trade in substances with non-Protocol Parties. 
28. In accordance with the Amendment procedure,  the Parties must receive a minimum six 
months’ notice of a proposed decision to add a substan ce.  All Parties are entitled to participate in the 
negotiations on the proposed decision, which must be  adopted by consensus or at least a two-thirds 
majority of all Parties present and voting.  Since its entry into force, all Protocol decisions have been 
taken by consensus.  However, the Protocol prov ides the additional safeguard that a Party is not 
bound by a decision to add a substance until they ratify the Amendment incorporating the decision. 
VII. CONCLUSION 
29. These examples of Australia’s experience in negotiating and implementing specific trade 
obligations in MEAs demonstrate that trade a nd environment obligations can be and are, in 
Australia’s case, being implemented in mutually su pportive ways.  The relationship is working well 
and, in our view, effective domestic coordination and consultation processes are a key factor in this 
outcome.  Such coordination has also helped ensure  that STOs have certain features which contribute 
to compatibility with WTO rules. 
30. Australia’s experience has shown that the adoption at the national level of a sensible set of 
consultation and coordination mechanisms plays an important part in how Australia is able to 
negotiate, implement and abide by its international obligations.  Because it is possible to take such 
steps at the national level and since the relations hip between trade and environment obligations is 
working well, Australia remains firmly of the view that members need to proceed carefully with the 
discussions under paragraph 31(i).  Ministers did not mandate us to make ch anges for changes sake, 
which is why a practical, focused discussion based on real experiences rather than theoretical or 
hypothetical scenarios is the best way to advance our discussions. TN/TE/W/45 
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 31. We hope that Members have found this paper focused on sharing Australia’s experiences 
useful.  Australia would welcome other Member s coming forward with examples of their own 
national level experiences as a means of contributing to  further discussion in a manner consistent with 
the paragraph 31(i) mandate. 
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