A clear understanding of what is encompassed by the terms `native flora and fauna', `utilisation' and `statutory and other controls' is central to the Inquiry. Ecological and economic concepts, notably `ecologically sustainable development' and economic viability, are key elements of the Terms of Reference. Additional terms are included in the glossary included as Appendix I.
Native Flora and Fauna
In the Australian context, `native flora and fauna' are generally considered to be those plants and animals established in Australia prior to 1788. The term `indigenous' is generally more narrowly defined: "originating in and characterising a particular region or country".12 For the purposes of the current Inquiry, the term `Victorian native flora and fauna' has been used to encompass native flora and fauna indigenous to Victoria, as well as native species introduced or brought into the State from elsewhere in Australia. Flora and fauna introduced into Victoria from overseas are excluded.
The Committee has taken the view that the term `native flora and fauna' encompasses such species wherever they may occur, whether in the wild or elsewhere.
Utilisation
The Committee has defined `utilisation' as being: to use, make use of, to gain benefit from such use. Utilisation may be commercial, that is involve commerce or profit making, or be non-commercial.
Commercial utilisation includes the collection, harvesting, processing and preparation for sale of native flora and fauna and of products derived from these.13 Non-commercial utilisation covers any other form of use from which human benefit may be gained.
Utilisation activities may also be grouped into two main types:
a) consumptive forms of utilisation - uses which permanently remove either the organisms or their products from the population or ecosystem concerned;14 and
b) non-consumptive uses - uses by which humans derive benefit without permanently removing organisms or their products from the population or ecosystem concerned.
By way of example, looking at a wildflower or native animal in its natural habitat as part of an ecotourism tour would be a non-consumptive use. Breeding second-generation captive stock of birds for sale or enjoyment would also be non-consumptive uses. If the utilisation involved the removal of the plant or animal from its natural habitat, say to harvest it for sale or processing or to obtain breeding stock, then it would be a consumptive use.
Consumptive forms of utilisation may affect:
c) the population of the species - that is, involve the death of the entire organism or the removal or destruction of part of the organism (irrespective of whether the organism is part of the wild population or part of a captive/cultivated population) - for example harvesting a kangaroo from the wild or processing an emu grown on a farm; or
d) the natural ecosystem - that is, involve the relocation of the organism or part of the organism from the wild to elsewhere - for example to obtain breeding stock for an aviary or to stock a wildlife park.
Statutory and Other Controls
There is an array of controls available to regulators. The nature and role of the key controls used in Victoria (and indeed most of the Western world) are briefly described below.
Acts
Acts, also known as statutes or enactments, are a set of laws made by Parliament and given Royal assent. An Act is a primary legislative instrument - it may give authority for the making of another legislative instrument. The role of Acts is to constitute the process of formulating general rules or conduct without reference to particular cases and they usually operate in the future. Acts state the general principles of a scheme. Examples include the Flora and Fauna Guarantee Act 1988 and the Wildlife Act 1975.
Subordinate Legislation
Subordinate legislation is made under the authority of an empowering Act, but is made by authorised persons, such as a Minister of the Crown or the Governor-in-Council, not by Parliament. It is, however, subject to disallowance or scrutiny by Parliament. There are a number of different types:
e) regulations - these deal with matters of administrative or technical detail, particularly where this detail may need to be changed from time to time. An example is the Wildlife Regulations 1992;
f) by-laws and local laws - these are usually restricted in operation to a geographical area;15 and
g) statutory rules - which are mainly used for formulating and setting administrative procedures for government departments and courts.
Administrative Quasi-Legislation
This form of legislation "refers to a range of instruments issued by administrative bodies which seem to be legislative in character, but which were not made formally in the exercise of legislative powers delegated by Parliament".16 There are a number of types of quasi-legislation, including policies, codes, practical notes, rulings, administrative guidelines and standards. Their status depends on how they are adopted. For instance, an Act may expressly state that regard must be had to a policy, or may provide that regard must be given to directions by a Minister.
Codes can provide detailed technical standards, which are developed in cooperation with the experts from a management or industry body. They also provide for self-regulation. They are more flexible than regulations because codes of practice can be changed without the need to comply with procedural requirements that apply to regulations. Such `codes of practice' may be:
h) non-binding - such as an advisory code or voluntary code agreed to by an industry and/or by government), for example the Code of Conduct for Australian Aquaculture; or
i) binding - one which has been given particular meaning and application under an Act or regulation; that is where the Act expressly authorised the code to be made.17 An example is the Code of Practice for Emu Farming created under the auspices of the Prevention of Cruelty to Animals Act 1986.
Ecologically Sustainable Development
The concept of `Ecologically Sustainable Development' (ESD) has developed over the last few decades, with major advances via the `Brundtland Report'18 (1987) and `Agenda 21' and the `Rio Declaration' (1992). 19 It is a concept that offers an integration of economic and environmental perspectives in decision-making.
The Brundtland Report, the report of the United Nations' World Commission on Environment and Development, made it clear that the world's pattern of economic growth was not sustainable in ecological terms and that a new approach to development was required.20 It advocated sustainable development, which it defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs".21 This definition is now well established and continues to be used by the various United Nations' agencies and in the programs of many of its Member countries.
The Agenda 21 agreement and the associated Rio Declaration were adopted by the United Nations' Conference on Environment and Development's `Earth Summit' of 1992.22 The agreement was driven by the recognition of the "indivisibility of environmental protection and the development process".23 Emphasis was placed on the development of a comprehensive program that was practical and acknowledged the legitimate desires of all humans:
Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.24
ESD ideas are continuing to be developed and interpreted internationally, notably through the work of the United Nations' Commission on Sustainable Development.25
Within Australia the term `ecologically sustainable development' is more generally used. The use of the prefix `ecologically' gives overt emphasis to the environmental basis of sustainability. The term has been adopted in the National Strategy for Ecologically Sustainable Development (National ESD Strategy) and is now in general use throughout Australia.
The National ESD Strategy provides a simple interpretation of the term ESD:
ESD is development which aims to meet the needs of Australians today, while conserving our ecosystems for the benefit of future generations.26
The National ESD Strategy, which was agreed to by all Australian governments in December 1992,27 was initiated in 1990 to identify an approach to embrace the ESD concept in a meaningful manner for Australians. Consistent with the international approach, the ESD concept as adopted in the Australian context involves economic, environmental and social elements.
The anticipated benefits of an ESD approach are high. The Council of Australian Governments considered that "by following an ESD path of development, we should be able to reduce the likelihood of serious environmental impacts arising from our economic activity".28
ESD is not synonymous with `ecologically sustainable'. `Ecologically sustainable' means only that the ecosystem is sustained. For an `ecologically sustainable' use, for example the use of native flora and fauna, to become an `ecologically sustainable development' it must provide for intra- and inter-generational equity and also enhance individual and community welfare and wellbeing.29 In practice the difference between the two terms may be substantial.
Economic Viability, Markets and Competition Policy
For any industry to be economically viable it should be profitable in the longer term. Some industries may be very profitable in the short term but, to do so, may be unviable in the longer term. An economically viable industry is also not necessarily economically viable for any particular participant in that industry.
The national Standing Committee for Agriculture and Resource Management has developed a set of indicators to test industry viability.30 These indicators include natural resources and social and environmental factors as well as economic ones. In other words, industry viability is not based on economics alone.
Commercial activity requires a market. A market is where a buyer and seller agree to trade. For a trade to occur both buyer and seller must be satisfied with the price, form and quality of the product.31 In theory, open, competitive markets should ensure that resources are allocated to the production of goods and services that consumers most highly value, that firms supply desired goods and services at least cost, and that technological innovation is promoted (by producers who compete for business by developing new and improved products and processes).
Markets may, however, fail to achieve outcomes desired by the community, most commonly because of the presence of externalities, public goods and natural monopolies. Externalities arise where private decision-makers impose costs or benefits on others in the community who are not compensated. An example of a positive externality might be the actions of a landholder that bring benefits to adjoining landholders for which they do not pay. Air pollution, on the other hand, is often cited as a negative externality. Public goods are those goods or services that do not diminish as more people use them and where it is impossible or impracticable to exclude non-payers from using the resource. Natural monopolies occur in situations where it is cheapest for a single firm to supply the entire market demand. Competition will not lead to efficient outcomes in these circumstances.
The presence of market failure may lead a government to intervene in the economy by, for instance, introducing legislation. Such intervention has been widely used to conserve natural resources (such as native plants and animals) and manage their utilisation, because they are public goods and subject to a range of externalities.
In recent years there has been concern that governmental intervention is excessive and has created unnecessary monopolies and restrictions. In response to this view, the national and State governments have developed and endorsed a National Competition Policy.32 A guiding legislative principle of the Policy's approach is that "legislation should not restrict competition unless it can be demonstrated that the benefits of the restriction to the community as a whole outweigh the costs and that the objectives of the legislation can only be achieved by restricting competition".33
