Victorian legislation treats plants and animals differently. Controls relating to plants do not generally differentiate between taxa or taxa grouping, but are grouped by broad category according to rarity and perceived management need. They generally also vary according to the tenure of the land on which they are found or grown. In contrast, legislation dealing with fauna differentiates between taxonomic groupings including between individual species. Controls relating to fauna also deal with broad categories based on rarity and perceived management need but rarely vary according to tenure.
The use of native plants is dealt with predominantly by one piece of legislation - the Flora and Fauna Guarantee Act 1988. Other legislation deals with native plants on areas of defined tenure, most relevantly the Forests Act 1958.35
The use of native fauna is, in marked contrast, encompassed by a relatively large number of Acts - the main relevant legislation being the Fisheries Act 1995, the Flora and Fauna Guarantee Act 1988, the Prevention of Cruelty to Animals Act 1986, and the Wildlife Act 1975.
The nature of the controls under these Acts also varies according to whether it is dealing with a plant or an animal. The emphasis of the controls dealing with flora, other than the `listed' species, is on the protection of wild populations. There are no special controls applying to the use of propagated native flora (nor dealing with the issue of genetic drift).
In contrast the relevant legislation affecting the use of fauna, with the exception of fish, is focussed primarily on the use and welfare of captive-bred animals. Protection of wild animals is also dealt with. Controls affecting fish are similar to those dealing with flora; that is they are focussed on wild harvest.
Controls affecting both Flora and Fauna
With respect to species that are considered to be threatened with extinction, both flora and fauna are subject to the one Act - the Flora and Fauna Guarantee Act 1988. In addition, vertebrate fauna (mammals, birds, amphibians and reptiles) may be classified as `endangered' wildlife under the Wildlife Act 1975.
`Listed' Species
`Listed' species are those species considered to be threatened with extinction and have been included on a schedule (Schedule 2) of the Flora and Fauna Guarantee Act 1988. The nomination and assessment process is prescribed by legislation and regulation.
The controls that apply to `listed' species may potentially be quite restrictive and apply irrespective of tenure or whether the `listed' species are part of a wild, or captive or cultivated population. Listing does not necessarily mean, however, that any particular form of utilisation is prohibited. The restrictions on use are subject to the recommendations of defined management processes (for example, the preparation of an action statement or interim conservation order) laid down under the Act. Any particular use may require a permit under the provisions of the interim protection order irrespective of but subject to prescribed assessment criteria (as provided for under section 10).
If a plant, `listing' brings the more general provisions applying to `protected' flora into play. If an animal, no special provisions apply if `listed', unless the animal is a fish. If a `listed' fish, use is only permitted if in accordance with a Governor in Council Order or a licence issued by the `Director-General' (now Secretary).36
Thus with the exception of `listed' fish, the level of protection for individual specimens of the `listed' species is no more than that available to any unlisted species.
Where a `listed' species is already encompassed by other legislative or regulatory provisions, restrictions on use are made by administrative decision. The Committee understands that in practise where a discretionary use is provided for, the decision maker (generally the Minister or the Secretary to the Department of Natural Resources and the Environment) will generally not permit use of a `listed' species other than for research allied to the conservation of the species. Where use of species is permitted by way of schedule as declared by the Governor in Council (for instance many vertebrate animals, as is discussed below), `listed' species are not included by administrative choice.
The preparation of an `action statement' is required to be prepared for any listed taxon, community or `potentially threatening process' `as soon as possible' after listing. The action statement "must set out what has been done to conserve and manage ... [the `listed' species] and what is intended to be done and may include information on what needs to be done". 37 Any utilisation, by administrative practise, would need to be consistent with such action statement. Currently, there is a backlog in the production of such action statements.38
Controls Affecting Flora
In effect, all native plants are grouped into one of seven categories:
ff) `listed' species - that is plants threatened with extinction, see previous discussion above;
gg) `protected' plants - as declared (and includes all `listed' flora);
hh) other plants - all flora not included in the above two categories;
ii) `prescribed' flora - plants that must not be released into the wild;39
jj) `forest produce' (which can include plants of any of the above categories);
kk) `reserved trees' (which can include any tree, shrub, or bush); and
ll) `noxious weed' - as declared (excludes all `listed' species).40
`Protected' Plants
In general the controls restricting the use of `protected' flora apply only to flora on Crown land or flora on private land that is traded (that is, flora offered for sale). Such `protected' flora may only be taken, traded, kept, moved or processed subject to licence (none granted to date),41 permit or authorisation under Order of the Governor in Council.42
In addition any `protected' flora that is "propagated from flora which has been lawfully obtained and kept" is exempt from these requirements.43
Utilisation that involves trade is thus provided for, harvesting (take) or processing of `protected' flora is provided for on Crown lands under permit and on freehold lands `as of right'.
In practise there is little regulation as a Governor in Council Order under the Flora and Fauna Guarantee Act 1988 has authorised the "keeping, moving and processing of `protected' flora,"44 - thus negating the need for a licence or permit. Such authorisation may, however, be subject to conditions. For instance, tree ferns need to be tagged.
Currently declared `protected' flora includes about 25 percent of Victoria's native flora. Plants appear to be declared on the basis of perceived management need - the listed plants include attractive wildflowers that in the past were sought for recreational picking,45 orchids and ferns (sought for garden planting), and species targeted for commercial harvesting - sphagnum moss, grass trees and species of daisy. A number of species that are used for commercial harvesting are not, however, included as `protected' flora. Such species including eucalypts, seagrass and kelp.
No criteria are specified for declaration. The only exception is that `listed' species (that is, all flora threatened with extinction) automatically come under the provisions of `protected' flora.46
`Other' Plants
Effectively no controls apply to native plants not `listed' or declared to be `protected'. Nor do any controls apply to `protected' plants that occur in the wild on freehold land that are not traded. Any utilisation is thus not specifically precluded, but neither is it provided for.
`Prescribed' Flora
The Flora and Fauna Guarantee Act 1988 includes a category of `prescribed' flora, being plants that must not be abandoned or released into the wild.47 However, no such plants have been prescribed to date.
The provisions of the Catchment and Land Protection Act 1994 that deal with `noxious weeds' may provide an alternative mechanism to control the release of plants into the wild (see section on `noxious weeds' below).
`Forest Produce'
`Forest produce' is a tenure-based category of flora. It applies to all flora which comes under the provisions of the Forests Act 1958 - which, in effect, means most Crown land other than national parks and conservation reserves.
The Forests Act 1958 primarily deals with the use of native plants for the production of timber. However, the definition of `forest produce' includes plants, leaves, flowers, ferns, grass-trees, roots, honey, beeswax, eucalyptus oil and so forth.48
Section 3 of the Forests Act 1958 restricts the removal of any forest product other than in accordance with the provisions of the Act. The `Director-General' (now Secretary) may permit the taking or converting of forest produce,49 and grant a lease (up to 21 years) of an area for, amongst other things, grazing (Section 51) or a licence or permit to graze cattle, to take away forest produce or for "any other purpose whatever relating to or connected with ... forest produce" (Section 52).
There is no cross-reference in the Forests Act 1958 to the provisions of the Flora and Fauna Guarantee Act 1988.
`Reserved Trees'
Trees, which are defined as including shrubs and bushes,50 may not be removed without a permit (section 59(1)). There is also a provision (section 60) that provides for the Governor in Council to declare a particular tree or class of trees as `reserved' and consequently protected from removal or destruction.
As at June 1999 no tree or class of tree were declared under this provision.
The provision effectively duplicates the `protected' flora provisions of the Flora and Fauna Guarantee Act 1988, although it is more restrictive in that it does not provide for any use, even under permit.
`Noxious Weed'
Native flora may be declared as a `noxious weed' under the Catchment and Land Protection Act 1994 (more strictly, may be declared as one of the four defined categories of weed). The criteria for declaration as a `noxious weed' is that they are: "considered to have, or have the potential to become, a serious threat to primary production, Crown land, the environment or community health in Victoria".51 Native species that are a `listed' species or a species which is part of a `listed' community (under the Flora and Fauna Guarantee Act 1988) cannot be declared `noxious weeds'. 52
`Noxious weeds' or their seeds may not be deposited on any land without permit,53 and must be controlled on request.54
Controls Affecting Fauna
In summary, the relevant legislation groups animals into the following categories:
mm) `listed' species - any animal that has been threatened with extinction (see previous discussion above);
nn) `wildlife' - all vertebrates other than humans and fish, and any `listed' invertebrate (as well as deer, and other introduced animals so declared);
oo) `protected wildlife' - all `wildlife' except for animals declared as `pests', `unprotected' or `unprotected in an area';
pp) `endangered wildlife' - as declared, a subset of `protected' wildlife;
qq) `notable wildlife' - as declared, a subset of `protected' wildlife ;
rr) `game' - as declared, may include any species of `wildlife' but hunting may only take place during a proclaimed `open season';
ss) `other protected wildlife' - protected wildlife not declared as `endangered', `notable' or `game';
tt) `whales' - a subset of `wildlife', includes dolphins;
uu) `unprotected' wildlife - as declared, may be any species of `wildlife'
vv) `fish' - all aquatic fish and molluscs, crustaceans (mostly aquatic), echinoderms (all marine) and any declared aquatic invertebrate;
ww) `fishing bait' - as declared, may be any species of fauna that is not `protected wildlife' (effectively any fish or invertebrate);
xx) `declared aquatic invertebrate' - as declared;
yy) `priority species' - abalone, rock lobster and any other `fish' listed by regulation;
zz) `protected aquatic biota' - as declared, may be any aquatic flora or fauna except `protected' wildlife, `protected' flora, and `listed' species of fish or invertebrate;
aaa) `noxious aquatic species' - as declared, may be any aquatic flora or fauna except `protected aquatic biota', `protected' wildlife, `notable' wildlife, `endangered' wildlife, `protected' flora, and `listed' species.
bbb) `pest' animal - any animal other than `fish', `listed' fauna, `endangered' wildlife, `notable' wildlife and non-feral domestic species (of the four categories of `pest' animal, native species can only be declared as an `established pest animal');
Any one species of animal may be included in a number of these various categories. In addition, the Wildlife Regulations 1992 further categorise `wildlife' into seven, overlapping schedules, without cross reference to any of the above categories.
Vertebrates, Other Than Humans and Fish
Native vertebrate species, other than humans and fish, (that is `wildlife') are subject to more legislation than any other grouping of native species.
All `wildlife' comes under the provisions of the Wildlife Act 1995 (`wildlife' also encompass any `listed' invertebrate as well as deer, and other introduced animals so declared). The designation as `wildlife' has little effect unless the `wildlife' is also declared `protected' or `game'. However, `protected wildlife' is defined to include all `wildlife', other than declared `pest animals', and those specifically declared to be `unprotected' or `unprotected in an area'.
`Protected wildlife' are subject to provisions that provide both protection and utilisation subject to licence or permit (`whales' are, however, excluded from the provisions permitting utilisation under licence). It also brings in to play a number of penalty provisions for utilisation not undertaken in accordance with a licence or permit.
`Protected wildlife' may be declared to be `endangered wildlife' or `notable wildlife'. Such declaration has little effect other than making the penalties for hunting, taking, possessing, breeding and processing without a licence or other authorisation higher than for `other protected wildlife'. It does not preclude the granting of such licence or other authorisation (and any person or class of person can be exempted by the provisions, by regulation). There are no defined criteria for declaration. Moreover, there is no cross-reference to `listed' species under the Flora and Fauna Guarantee Act 1988. Many `listed' species are not included as either `endangered wildlife' or `notable wildlife' and some `endangered wildlife' and `notable wildlife' are not `listed' species (meaning that the penalties for taking non `listed' species may be greater than those that are `listed' ie threatened with extinction). Designation as `other protected wildlife' is merely a devise to apply lower levels of penalties than is applied to `endangered wildlife' or `notable wildlife'.
`Game' species may include both exotic and native species. Currently of the 20 plus species declared to be game, ten are native species - Lathams snipe (currently not subject to an open season), one quail (the stubble quail, Corturnix pectoralis) and eight species of duck. In terms of native species, the major implication of being declared as `game' is that it can be hunted under licence during a declared season. There are no prescribed criteria for designation as `game' (nor any restrictions - any `listed' species of vertebrate could, for instance, be declared as `game').
`Whales' (meaning "any member of the sub-order Mysteceti or the sub-order Odontoceti of the order Cetaceae", that is all dolphins and whales found in Victoria) are subject to a series of special provisions of the Wildlife Act 1975 which, in effect, preclude most forms of utilisation. Not only is the taking of `whales' precluded there are also restrictions and substantial penalties for interfering with `whales'. Utilisation of `whales, under permit, may be permitted by the Secretary only for a limited number of purposes, such as for scientific, educational or tourist activity.55
Declaration of a species as `unprotected' can occur under two provisions of the Wildlife Act 1975. If declared by the Governor in Council under section 3 of the Act all provisions related to `protected' species no longer apply. No criteria for such declaration are defined. Currently there are no species so declared. If declared under section 7A of the Act, such declaration can only be applied if:
it appears to the Minister that a taxon or kind of protected wildlife is causing injury or damage to (a) any building, vineyard, orchard, garden or other property; (b) any crop, grass, trees or other vegetation; or (c) any taxon or kind of animal (including fish) ...56
Such declaration is thus, in effect, a tool to permit control, but not otherwise reduce the ability to provide for utilisation or level of protection. Each declaration is required to specify the area to which it applies, conditions and restrictions on the persons authorised and methods that may be used to kill take or otherwise control the declared species.
Species currently declared to be `unprotected' include:
ccc) common wombat (Vombatus ursinus) - can only be taken or destroyed by land-holders in eastern Victoria (as defined);57
ddd) long-billed corella, sulphur-crested cockatoo and galah - can only be taken or destroyed by land-holders where there is serious damage (as defined);58 and
eee) common brushtail possum (Trichosurus vulpecula) - can only be trapped and, under certain conditions, destroyed by home-owners or licensed `wildlife controllers' if living in a building59 and if that mammal is causing damage or creating a nuisance to a residential or commercial building.60
`Pest' animals may include any vertebrate animal other than `fish', `listed' fauna, `endangered' wildlife, `notable' wildlife and non-feral domestic species. If so declared (as an `established pest animal') any form of utilisation is restricted unless as part of the bona fide operations of the Zoological Board of Victoria or associated zoo, or for research purposes or in accordance with a permit or regulation.61 It is understood that such permits would only be granted in special circumstances.
Fish
All `fish' comes under the provisions of the Fisheries Act 1995 (`fish' is defined to include a number of animal groups which are not fish - it encompasses all aquatic molluscs, all crustaceans (mostly aquatic), echinoderms (all marine) and any `declared aquatic invertebrate'.
Inclusion under the Fisheries Act 1995 brings into play a number of provisions that provides for and regulates the utilisation of fish, particularly taking of `fish'. All take for sale, all use of habitat for hatching, rearing, breeding of displaying fish for commercial purposes, use of specified fishing equipment, and take of fish from inland waters (marine waters) is reliant on the possession of some form of licence. Only two of the fishery licences, relevant to non-marine fisheries, are endorsed for the taking of particular species. Both are eel fishery access licences.62 The holders of unrestricted licences are none the less restricted to taking species in accordance with regulations (which may prescribe areas, seasons, methods of take, and size and catch size).
The major effect of `priority species' designation is that it doubles the prescribed penalties for offences. No non-marine species have been so designated to date.
Any species of fish may be declared as `protected aquatic biota' unless it has previously been `listed' under the Flora and Fauna Guarantee Act 1988.63 Such declaration may apply to some or all of the State. The implication for utilisation of such declaration is that:
a person must not take, injure, damage, destroy, possess, keep, display for reward, release into Victorian waters or sell ... without a permit or unless authorised ..."64
Under section 73, however, the Governor in Council may authorise use of any protected biota (unless `listed'), subject to conditions. Under section 72, the Secretary may also issue a permit, but subject to meeting prescribed criteria (including having no previous convictions). Issue of permit is not permitted if:
the issue of the permit would be inconsistent with any relevant management plan, or if there is no relevant management plan, would be harmful to the welfare of any relevant fishery or aquatic ecosystem.65
The implication of a fish being declared under the Fisheries Act 1995 (section 75) as a `noxious aquatic species' is that it can not be brought into Victoria, taken, hatched, kept, sold, transported, or released with out a permit from the Secretary (section 81) or Governor in Council authorisation (section 83). Otherwise the relevant provisions are identical to those for `protected aquatic biota.'
Aquatic Invertebrates
If the aquatic invertebrate is a mollusc, crustacean, echinoderm (all marine) or a `declared aquatic invertebrate' all the provisions affecting utilisation as prescribed under the Fisheries Act 1995 (as outlined above), apply. `Declared aquatic invertebrates' are those declared under section 6 (2) by the Governor in Council. Nor criteria are defined. Currently no non-marine invertebrates have been so declared.
An invertebrate may also be declared under section 6 of the Fisheries Act 1995 to be `fishing bait', and thus come under some form of regulation.
If not covered by the provisions of the Fisheries Act 1995, provisions affecting potential utilisation only come into play if the invertebrate is a `listed' species when limited controls come into play as previously outlined.
Non aquatic Invertebrates
There are no legislative provisions affecting non aquatic invertebrates, other than the if the species is a `listed' species when limited controls come into play as previously outlined or if declared under section 6 of the Fisheries Act 1995 to be `fishing bait'.
Controls Affecting Micro-organisms
Effectively no controls apply to micro-organisms, unless they are `listed' as a threatened species under the Flora and Fauna Guarantee Act 1988. If a plant, a micro-organism is declared to be `protected' under the Flora and Fauna Guarantee Act 1988, or if an aquatic species is declared a `protected aquatic species', such declaration bringing into play provisions that provide for utilisation and protection. No species have however, been declared under these provisions. No provisions apply to non-flora micro-organisms that are terrestrial (such as soil fauna).
Issues
There is an array of species-specific controls. Some overlap with each other, some provisions are seldom used, declaration into various categories may or may not be based on statutory criteria, and there is considerable variation in the complexity and the controls vary according to whether the species affected is a plant, vertebrate or invertebrate with the logic behind such variation not always obvious. Some species are subject to effectively no formal mechanisms of utilisation management or control.
The Maroondah City Council has found that the lack of substantial penalties for non-compliance with the provisions of the Flora and Fauna Guarantee Act 1988 has been exploited by some commercial plant operations - with the result that the populations of some species of rare local flora have been decimated.66 They recommend that:
All harvesting and utilisation of native flora and fauna is strictly controlled by a system of accreditation and licensing. Substantial penalties should also apply for non-compliance of these conditions.67
