THE LEGISLATIVE REGIME

An array of legislation affects the utilisation of native flora and fauna in Victoria. The key relevant Victorian legislation is:

a) Catchment and Land Protection Act 1994;

b) Conservation, Forests and Lands Act 1987;

c) Fisheries Act 1995;

d) Fisheries Regulations 1998;

e) Flora and Fauna Guarantee Act 1988;

f) Flora and Fauna Guarantee Regulations 1990;

g) Forest Act 1958;

h) Land Act 1958;

i) Meat Industry Act 1993;

j) National Parks Act 1975;

k) Planning and Environment Act 1987;

l) Plant Health and Plant Products Act 1995;

m) Prevention of Cruelty to Animals Act 1986;

n) Wildlife Act 1975;

o) Wildlife Regulations 1992; and

p) Zoological Parks and Gardens Act 1995.

The Victorian legislative regime regarding the utilisation of native flora and fauna appears to use six main approaches:

a) setting out broad policy and philosophical aspects;

b) providing for adoption of statutory management strategies;

c) listing of species, their habitats or areas of land and / or water.;

d) prohibition of uses;

e) licensing or authorisation of uses; and

f) complementary use of legislation and subordinate legislation.

Issues

Some forms of utilisation are covered by more than one Act, others by many, and some are scarcely covered at all.

"The need for the legislation to [be] enforced and for the penalties to be a realistic deterrent" was raised as a key issue.² This issue was also raised by the Trade Records Analysis of Flora and Fauna in Commerce (Oceania) Inc (TRAFFIC) who considered that the Senate Inquiry into the Commercial Utilisation of Native Wildlife:

Failed to address one of the main problems facing the management of Australia's wildlife trade, the lack of enforcement of State and federal laws and regulations.³

Policy and Philosophical Aspects

Parliament's broad policy intent and philosophical approach can be identified through the `purposes' and `objectives' sections of an Act.⁴ The `purposes' of an Act are usually more descriptive of the content of the legislation, with `objectives' generally more focussed on the desired outcomes of the legislation.

The Plant Health and Plant Products Act 1995 is an example of a more prescriptive approach. It provides for:

a) the monitoring, controlling and eradicating of plant pests and diseases;

b) the packaging, labelling and description of plants and plant products;

c) industry funded schemes for pest and disease control measures and to compensate producers for the cost of controlling pests and diseases.⁵

By contrast, the Prevention of Cruelty to Animals Act 1986 is more outcome focussed. It aims to:

prevent cruelty to animals, to encourage the considerate treatment of them and to improve community awareness about the prevention of cruelty to animals.⁶

Most recent legislation contains a `purpose' as well as `objectives'. For example the purpose of the Fisheries Act 1995 is to:⁷

a) provide a modern legislative framework for the regulation, management and conservation of Victorian fisheries including aquatic habitats;

b) reform the law relating to Victorian fisheries;

c) repeal the Fisheries Act 1968; and

d) make consequential amendments to other Acts.

Its objectives are to:

a) provide for the management, development and use of Victoria's fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner;

b) protect and conserve Victoria's fisheries resources, habitats and ecosystems;

c) maintain aquatic ecological processes and genetic diversity;

d) promote sustainable commercial fishing and viable aquaculture industries;

e) facilitate access to fisheries for commercial, recreational, traditional and non-consumptive uses;

f) promote the welfare of persons involved in commercial fishing;

g) facilitate the rationalisation and restructuring of the commercial fishing industry; and

h) encourage community and other involvement in fisheries management.⁸

Older legislation, such as the Wildlife Act 1975, does not include `objectives' at all but a more expansive `purpose', for example to:

a) establish procedures in order to promote (i) the protection and conservation of wildlife; (ii) the prevention of taxa of wildlife from becoming extinct and (iii) the sustainable use of and access to wildlife; and

b) prohibit and regulate the conduct of persons engaged in activities concerning wildlife.⁹

Some legislation does not include either a `purpose' nor an `objectives'. The only sense of the intent of the legislator is given in the `long title' of the legislation - which may merely briefly describe the contents of the legislation. For instance the Forest Act

1958 is intended:

to consolidate Victorian laws on the management and protection of State Forests.¹⁰

Issues

A clear policy objective relevant to utilisation is not always included in legislation that affects utilisation of native species.

Management Strategies

Management plans, strategies, and the power to make ministerial directions, are all aimed at putting the philosophies or rationales of the legislation into some broad operational framework.

Management plans may be prepared to encompass the operation of a particular utilisation sector. For instance, under the Fisheries Act 1995, the Minister responsible for fisheries has the power to declare management plans regarding fisheries. These plans may cover matters such as wild stock monitoring, performance indicators, economic values, research needs, human uses, and environmental impact.¹¹ Management plans may also be prepared for a particular area and deal with utilisation of flora and fauna within that area, as is provided, for example, under the National Parks Act 1975 ¹² in relation to wilderness parks.

Strategies may also be used. For instance, under the Flora and Fauna Guarantee Act 1988 (section 17), the `Director General' (now Secretary) of the Department of Natural Resources and Environment must prepare a Flora and Fauna Guarantee Strategy setting out means for ensuring the survival and evolutionary development of all native flora and fauna in the wild.

Ministerial directions are less expansive but none the less binding. As an example, under the Fisheries Act 1995 (section 61), the Minister may give directions on many aspects of management of fisheries, licensing requirements, and so forth.

Listing of Species, their Habitats or Areas of Land or Water

The use of grouping together of various species, their habitats or parts of the environment generally, into lists, schedules, named classified groups, designated areas of land and water environments, and so forth is used in some of the relevant legislation as a tool to achieving conservation or utilisation purposes.

Examples of this can be seen in:

g) the lists of threatened species in Schedule 2 of the Flora and Fauna Guarantee Act 1988;

h) the groups of birds, reptiles, amphibians and mammals that can be used legally as listed in the seven Schedules at the back of the Wildlife Regulations 1992;

i) the nominating in the Fisheries Act 1995 of certain fish as `priority species'¹³ which carry catch limit quotas;¹⁴

j) the declaration of certain habitats as `critical';¹⁵ and

k) the dividing up of the state forests, parks and waters under the Forests Act 1958¹⁶, the National Parks Act 1975¹⁷ and the Fisheries Act 1995¹⁸ into certain categories of reserves, with each category often varying as to the type of activity¹⁹ that can legally take place within it.

Prohibition of Uses

Legislation may prescribe the complete or partial prohibition on certain uses of native flora and fauna. It may involve:

l) strict prohibitions on certain types of behaviour in relation to, or uses of, native flora and fauna - for instance the trap-shooting of birds is prohibited and carries severe penalties;²⁰ and more commonly,

m) prohibitions on certain uses without written authorisation - such as a licence or permit or an exemption. ²¹

The Licensing or Authorisation of Uses

Examples include:

n) animal exhibition licence;²²

o) apiary licence (3 classes);

p) aquaculture licences (2 classes);²³

q) eucalyptus oil licence;

r) fishery access licence - permits the taking of specified fish for sale (23 classes, of which 4 directly apply to non-marine fish);²⁴

s) fish receivers licence - to receive fish for sale (3 classes);

t) forest produce licence - covering grazing, eucalyptus oil, apiaries, plants, etc on land under the Forest Act 1958;

u) game licences - (5 endorsements);²⁵

v) grazing licence;

w) listed fish licence;²⁶

x) protected flora licence;

y) recreational fishery licence (2 classes);

z) section 138 licence - covering miscellaneous uses on Crown land under the Land Act 1958; and

aa) wildlife licences - private (5 classes), commercial (11 classes), and an assistants licence.²⁷

Within some of these licences there are a number of classes, each generally with different entitlements and subject to differing conditions relating to the type of usage and the species of native fauna. Most notably there are many different categories of wildlife licence and fishery access licence.

In addition the relevant legislation includes a number of provisions permitting use by way of permit or written authorisation. The making of a Governor in Council Order to permit the taking or trading of certain species is also provided for.²⁸

Complementary Use of Legislation and Subordinate Legislation

With some exceptions,²⁹ there is general use of a main or principal empowering Act to set the broad framework of policy, management, conservation, utilisation, licensing, and so forth, with the subsequent introduction of subordinate legislation providing for the detailed implementation of those subject areas.

Examples can be seen in:

bb) the Wildlife Act 1975 which is a principle empowering Act and inter alia states that all wildlife licences must be in a prescribed category, that these licences may be subject to prescribed conditions³⁰ and that regulations³¹ may be made which set out the conditions, requirements, restrictions, limitations, etc., of these licences; and

cc) relevant subordinate legislation such as the Wildlife Regulations 1992, which sets out in great detail the different categories or types of wildlife licences, their eligibility criteria, application procedures, fees, as well as the different species of wildlife that can be taken, housed, bred, and so forth under each particular licence.

The empowering Fisheries Act 1995 and its relevant subordinate legislation, the Fisheries Regulations 1998, have a similar framework.³² For example, section 38(1) of the Fisheries Act 1995 empowers persons to make regulations which set out the various categories of `access' licences for commercial fishing, whilst the Fisheries Regulations 1998 lists the different classes of access licence for commercial fishing (regulations 201 to 203), the entitlements of holders of those various licences (regulations 204 to 231), any conditions that are attached to the licences (regulations 301 to 337) and administrative matters in relation to them (regulations 232 to 237).

Administrative Quasi-legislation

The main administrative `quasi-legislation' referred to in the key relevant legislation are codes of practice. Codes of practise under the Conservation, Forests and Lands Act 1987³³ are subject to a rigorous approval process but compliance is not required unless incorporated or adopted by another law, regulation or condition of an licence or other authority and is ratified by Parliament. Codes of practise under the Prevention of Cruelty to Animals Act 1986 are subject to a less rigorous process, but are also not obligatory unless so made by another authority. They may specify "procedures for the keeping, treatment, handling, transportation, sale, killing, hunting, shooting, catching, trapping, netting, marking, care, use, husbandry or management of any animal or class of
animal ...".³⁴

Management plans, action statements and the like are also forms of administrative quasi-legislation and are also generally non-binding. Management plans under the Fisheries Act 1995 are a notable exception - "a public authority must have regard to any relevant management plan" (section 34).

An advantage of such plans is that they generally provide for consultation and involvement of interested persons and can be amended to reflect changing needs and requirements.

Issues

Codes of practise and management plans affecting utilisation generally have no immediate statutory effect. As such their ability to achieve the legislative objective may be reduced.

Approaches Used By the Legislation

From a utilisation perspective, two main approaches are used in the Victorian legislation:

dd) by particular species; and

ee) by particular sector or industry.