This section briefly outlines the controls that apply to the various utilisation sectors outlined in Chapters 3 to 6. It excludes consideration of the requirements of threatened species `listed' under the Flora and Fauna Guarantee Act 1988. These affect and apply to all utilisation sectors.
The sectors have been grouped into three parts:
fff) those for which there are no specific controls;
ggg) those for which general requirements apply; and
hhh) those for which specific requirements apply.
Sectors for Which There are No Specific Requirements
Agricultural Use - Native Fodder Crops.
There are no particular provisions that apply to the use of native fodder crops, assuming that the plants are obtained from a lawful source.
Amateur Collectors and Enthusiasts - Plant Collectors and Propagators
No sector-specific controls exist, but a licence or permit is required under the Flora and Fauna Guarantee Act 1988 (Section 48) to take, trade in, keep, move or process plants if declared `protected' under the Flora and Fauna Guarantee Act 1988 - unless the plants are obtained from a lawful source.68 If obtained from a lawful source, they may be propagated without need for any licence or permit.
Bushfoods
There are no particular provisions that apply to the production of native plants used for bushfoods, assuming that the plants are obtained from a lawful source.
The sale and processing of bushfoods is, however, subject to the normal requirements that need to met for any food, such as those under the Food Act 1984.
Ecotourism and Recreation - excluding Wildlife Parks and Botanic Gardens and Recreational Fishing and Hunting
There are no particular provisions that apply to non-consumptive forms of ecotourism or recreational use of flora and fauna, other than access rights in the case of commercial or large-group activity. Such access rights are, in the instance of Crown lands, granted by Parks Victoria under the National Parks Act 1975 or other relevant legislation.
Persons, with the relevant permit, are permitted to interfere with `whales' for the purpose of conducting tourist activities to the extent of approaching no closer than a prescribed distance.69
Industrial Chemicals and Pharmaceuticals
There are no particular provisions that apply to the production of industrial chemicals and pharmaceuticals obtained from native flora and fauna, assuming that the native biota used are obtained from a lawful source.
The actual industrial processes are, however, subject to the normal requirements that need to be met for the production or release of any industrial chemical or pharmaceutical (mostly under Commonwealth legislation).
Land Rehabilitation and Amenity
There are no particular provisions that apply to the use of native flora for land rehabilitation or amenity plantings, assuming that the plants are obtained from a lawful source.
Seed banks, whether commercial or not, are not required to be registered or subject to any particular regulatory control.
Pets and Companion Animals
As was outlined in Chapter 6, the majority of native animals kept as pets do not require any licence, irrespective of the number of types or individuals kept. Indeed such absence of control is less restrictive than for dogs and cats, which must be registered and subject to limitations on the number kept under the Domestic (Feral and Nuisance) Animals Act 1994.
The keeping of some less common animals require the holder to obtain a wildlife licence. This is covered in the discussion of controls affecting `amateur collectors and enthusiasts' below.
Sectors For Which There Are General Requirements
Amateur Collectors and Enthusiasts - Animals
Aviculturalists (bird keepers), herpetologists (reptile enthusiasts) and those who keep and breed amphibians and mammals all need to be holders of a wildlife licence under the Wildlife Act 1975 (other than if only very common `pet' species are kept).
Five classes of licence are available:
iii) Private Wildlife (Category One) Licence;70
jjj) Private Wildlife (Category Two) Licence;71
kkk) Private Wildlife (Category Three) Licence;72
lll) Private Wildlife (Special Category) Licence;73 and
mmm) Private Wildlife (Specimen) Licence.74
The first three licences permit the holder to keep, breed and trade an increasingly larger number of species (as per defined schedules) as the category level increases. There is no restriction on the species that may be listed (including those `listed' as threatened under the Flora and Fauna Guarantee Act 1988 and venomous species), but in practise they are mostly common widespread species or have very large captive-populations.75
The species permitted by the higher categories are understood by the Committee to be those that are less common in the wild and/or are more difficult to keep and breed. The current scheduled species do not, for example, include any `listed' species, nor raptors (such as eagles or owls). There is not, however, any requirement of the holder of the licence of more difficult-to-handle species to demonstrate proof of competency. The list of species that can be kept is also under continual pressure, as Victorians seek to obtain specimens of captive bred species from other more liberal States (notably South Australia). Moreover, once a species is included on a schedule, it is very difficult to have it de-listed, even if the species proves unsuited to captivity - as the captive population would have to be dealt with.
There are no restrictions on the number of individual specimens that may be kept by the holder of a licence (other than for emus, which are limited to ten), though under existing administrative policy they must all be held at one premises.
The holder of a private wildlife (special category) licence permits the holder to keep or trade any wildlife not otherwise permitted under schedule - as specified on the licence and subject to all trade requiring the written approval of the Secretary.
All licence holders are required to keep animals only at the specified location, maintain records (of the animals kept, bred, traded and deceased) and send in regular returns. Individual animals may be required to be marked.76 Any trading must occur at the specified premises of the licence holder and not occur within 6 months of obtaining the specimen - the latter being the main difference between the trading rights of the holder of a private wildlife licence and a commercial wildlife licence (who may trade as soon as an animal is obtained).
A private wildlife (specimen) licence is required to be held by any one who wishes to keep or trade any prepared or mounted specimen of dead wildlife.77
Building Material and Fibre
There are no particular provisions that apply, assuming that the plants are obtained from a lawful source.
There are no controls on the harvesting of broombush for brush fencing from freehold lands. Material obtained from Crown lands, however, requires a licence under the Land Act 1958 (under section 138) and payment of a royalty. These annual rights of access are to the common resource shared by all licensees rather than to a prescribed area. The licences may be subject to a quota allocation as determined by an assessment of the sustainable yield of the resource, as well as any conditions that may be specified, such as the method of harvesting.
Harvesting of seagrass is ordinarily undertaken from Crown lands under the authority of the Land Act 1958 (under a section 138 licence) and payment of a royalty and may be subject to conditions.
Essential Oils
Most essential oils produced in Victoria, with the exception of eucalypt oils, are obtained from cultivated plants to which no particular provisions apply if the plants are obtained from a lawful source. Access to plants for harvesting of eucalypt leaves to produce eucalyptus oil requires no authorisation if undertaken on freehold lands.
Where the eucalypt leaves are harvested from wild plants on Crown land, a `eucalypt oil licence' under the Land Act 1958 is required (Section 150). It is understood that most wild harvest occurs under the auspices of such licences. The licence may cover both the manufacture and production of eucalyptus oil. Such licences may be subject to conditions. To date, distilleries to manufacture oil are generally allied to the harvesting area and thus often located on Crown land.
If harvesting, or distilling, is undertaken on land subject to the Forests Act 1958, notably State forest, an authority, such as a section 52 licence, is required. Conditions may be prescribed.
Floriculture
No particular provisions apply, assuming that the plants being propagated are obtained from a lawful source. Even if a `protected' plant no controls apply as a Governor in Council Order under the Flora and Fauna Guarantee Act 1988 has authorised the "keeping, moving and processing of `protected' flora."78
There are no restrictions on wild harvest either, unless the species has been declared to be `protected flora' or the harvesting is to occur on Crown land that comes under the jurisdiction of the Forests Act 1958. In the former case, a permit or licence is required under the Flora and Fauna Guarantee Act 1988 (section 48).
If harvest is licensed under the Flora and Fauna Guarantee Act 1988 it must not threaten the conservation of the taxon or community of which it is a part, and individual specimens may also be required to be tagged. If the harvesting is done under the jurisdiction of the Forests Act 1958, an authority such as a section 52 licence is required; conditions may be prescribed. Currently most wild harvest, including that of `protected' species other than of tree ferns, is undertaken under authority of a Forests Act licence.
Kelp
Harvesting of kelp is ordinarily undertaken on Crown land under the authority of the Land Act 1958 (under a section 138 licence) and payment of a royalty. It too may be subject to conditions.
Nursery Industry
It is legal to propagate and trade in native flora. No particular provisions apply if the plants being propagated are obtained from a lawful source. There are no restrictions on wild harvest from either freehold or Crown land either, unless the species has been declared to be `protected flora', or if the harvesting is undertaken on Crown land that comes under the jurisdiction of the Forests Act 1958.
A permit or licence is required for commercial use under the Flora and Fauna Guarantee Act 1988 (section 48) if the plant is `protected' flora or if the area subject to harvesting is part of a critical habitat determined under that Act.
Both the Flora and Fauna Guarantee Act 1998 and the Forests Act 1958 are administered by the Department of Natural Resources and Environment, who is thus responsible for regulating the wild harvest of native flora. In Victoria, under current administrative practise, only limited wild harvest is permitted. The wild harvest of five native plant species for the ornamental horticulture trade is currently permitted. The species harvested are:
nnn) tree ferns (Dicksonia antarctica and Cyathea australis);
ooo) billy buttons (Pycnosorus globosus);
ppp) grass trees (Xanthorrea australis); and
qqq) and sphagnum moss.79
Licences under the Flora and Fauna Guarantee Act 1988, which is also used to regulate the harvest of native flora from State forests, covers the harvest of native species from private land where the flora is to be used for commercial purposes,. Authorisation may be by Governor in Council Order, permit or licence, although licenses have not been used to date.80 Such licence or authorisation, may only be permitted as long as the conservation of the particular flora is not threatened or it does not cause injury to property, crops, stock or listed taxa or communities of flora and fauna.81
If harvesting occurs under the jurisdiction of the Forests Act 1958, an authority is also required, such as section 52 licence - the general `minor forest produce' licence. There are no pre-requisite criteria defined for the granting of such licences, but Conditions may be prescribed. In practise, permits are generally only granted under the Forests Act 1958.
Various provisions of the Plant Health and Plant Products Act 1995 may also affect the propagation of native flora, for example:
rrr) section 8, which prohibits the sale of diseased seed;82
sss) section 31, which sets down labelling requirements for the sale of seeds;
ttt) section 32, which makes it an offence to sell seeds declared to be prohibited; and
uuu) section 39, which requires all plants or plant products sold for propagation to be identified clearly.
This Act does not specifically mention the term `native flora' but the definition of `plant' is sufficiently broad to cover it. 83
Outdoor Education and Research Activities
There are no particular provisions that apply to non-consumptive forms of outdoor education, other than access rights in the case of commercial or large group activity. Such access rights are, in the instance of Crown lands, granted by Parks Victoria under the National Parks Act 1975 or other relevant legislation.
In contrast most forms of research activity require some form of authorisation, under, for example, the Wildlife Act 1975 or the National Parks Act 1975. The Wildlife Act 1975 provides for the Secretary to give written authorisation to a person to take samples from, or experiment on, wildlife for the purposes of management, conservation, protection, control, education about, or research into, wildlife or for scientific or other study of wildlife. 84
Moreover the Secretary must carry out research for the purpose of conserving or propagating wildlife, or improving, conserving or maintaining wildlife habitat.85 Among the forms or purposes of such research are "economic studies and investigations with respect to the raising, keeping and rearing of any taxon of wildlife for commercial purposes" and public education programmes. 86 There is, however, no reporting requirement for the specified obligatory tasks.
It is, with the relevant permit, possible for persons to legally interfere with or have in their possession, certain species of whales for scientific or educational purposes. 87
A general fishery permit will allow the holder to take fish for research, educational and scientific purposes,88 and there is also provision for the Governor in Council to declare any specified waters to be a fishery reserve for scientific, educational or research purposes.89
Wildlife Shelters
The operators of all wildlife shelters require authorisation from the Secreatary under Section 28A of the Wildlife Act 1975. Such authorisation is, by way of condition, subject to the recording of the animals kept, notification of all assistants, and submission of returns.
The shelters are subject to a code of practise adopted under the Prevention of Cruelty to Animals Act 1986 - the Code of Practice for the Operation of Wildlife Shelters. A review of this code of practice has recently commenced, in conjunction with the Bureau of Animal Welfare, in order to improve wildlife care and incorporate the latest research findings.90
Sectors For Which There Are Specific Requirements
Agricultural Use - Bush Grazing
The provisions relating to the use of native flora for bush grazing are tenure-based. Areas of Crown land may be used under lease, licence or permit. Such authorisations may be subject to conditions. There are no restrictions on use of native flora for grazing on freehold land, unless the land is subject to an interim conservation order or is part of a declared critical habitat under the Flora and Fauna Guarantee Act 1988.
On unreserved Crown lands provision for access to flora for grazing is made under the Land Act 1958 - under grazing lease (Section 123), licence (Section 130), or agistment permit (Section 133A). Conditions include that `forest produce' may not be removed.91 These provisions can be used to restrict the number and type of stock carried and require exclusion from regenerating areas.92 There is not, however, a general power of making conditions. There is no cross-reference to the Flora and Fauna Guarantee Act 1988.
In reserved or protected forests, the Forests Act 1958 applies. While primarily the Act is focussed on the use of native plants for the production of timber, it also includes provisions for the use of `forest produce'. The latter is defined to include, amongst other things, plants and leaves.93 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,94 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 (Section 52). There is a general power of imposing conditions in the Act. There is no cross-reference to the Flora and Fauna Guarantee Act 1988.
Aquaculture Including Hatcheries
The Fisheries Act 1995 (Vic) allows people to operate an aquaculture business as long as they have the requisite licence95 or general permit96. There is also provision for the Governor in Council to declare any specified waters to be a fishery reserve for the purpose of aquaculture.97 It is unlawful to interfere with commercial aquaculture equipment and activities.98
The aquaculture licenses are a form of commercial fishery licence. There are two types:
vvv) aquaculture (private land) licence; and
www) aquaculture (Crown land) licence.
In practise most inland water licences are of the former type.
A number of standard conditions are prescribed by the Fisheries Regulations 1998. These include:
xxx) notify the secretary of the outbreak of specified diseases;
yyy) not selling fish or equipment affected by disease or toxic algae; and
zzz) complete crop production returns.99
The aquaculture licences are annual licences, but renewable. They are also `transferable' and thus tradeable commodities. They may be held by a body corporate as well as by an individual person.
The Fisheries Act 1995 (Vic) s. 36(1) forbids a person from taking fish for sale or using commercial fishing equipment unless authorised under that Act.100 The main form of authorisation is by way of various types of fishing access licence. Those relevant to inland waters are:
aaaa) bait (general) fishery access licence;
bbbb) eel fishery access licence type A;
cccc) eel fishery access licence type B; and
dddd) inland fishery access licence.
An array of conditions and regulations need to met by the holders of such licences, including quotas on the total allowable catch (for example, under section 64), season closures, restrictions on species permitted to be taken, traded or processed, bait, or fishing method (section 67 and the Fisheries Regulations 1998), size (section 68A and the Fisheries Regulations 1998). Boats used for commercial fishing purposes must be registered.101
Other restrictions on utilisation that provide for the management of the fishery or the ecosystem may be prescribed by `fishery notice' made under section 152 of the Act. In addition, the Minister (under section 62) "may give a direction on any matter relating to the management of one or more fisheries or one or more zones of a fishery". Any restrictions applying to `protected aquatic biota' or `listed' threatened species (under the Flora and Fauna Guarantee Act 1988) also apply.
The eel fishery access licence type A is `transferable' and is thus a tradeable commodity. It may also be held by a body corporate (rather than an individual person).
Special provisions apply to `developing fisheries'. These are defined by regulation or ministerial direction and provide for fisheries not subject to the defined access licences (renewable licences). They are for a three year period, but may be reissued. In effect it provides for a period without prescriptive regulation. None currently affect inland waters.
It is an offence, without authorisation under the Fisheries Act 1995,102 to receive any fish for sale. Authorisation is provided through the issue of a `fish receivers licence' (section 41). Under the Fisheries Regulations 1998, however, only three classes of licence have been created, none of which apply to inland water fisheries. It is not clear to the Committee under what authority a retailer thus acquires inland fish.
Eels
The eel fishery is subject to the Fisheries Act 1995, and generally undertaken in accordance with an access licence (for wild harvest or the taking of specimens for ranching purposes) or an aquaculture licence - see the sections on aquaculture and commercial fishing above.
Emu Farming
Emu farming is carried out under the auspices of a Commercial Wildlife (Wildlife Producer) Licence Type 3 granted under the Wildlife Act 1995. Emu is the only native species permitted to be bred and destroyed under the provisions of the Wildlife Regulations 1992 (as listed by schedule 7). The licence authorises the holder to possess, keep, breed, destroy, display, process and dispose of emus.103
There are also many conditions attached to these licence. These include that the emus are:
eeee) held on specified premises under the direct supervision of the licensee;
ffff) held in enclosures;
gggg) at stocking densities that comply with any specified requirements;
hhhh) if destroyed, that this is done humanely so as to cause sudden and painless death; and
iiii) any facilities for destroying or processing be sited so that they do not disturb other wildlife held.104
Live emus can be destroyed by the licence holder or by a meat processing facility without need for permit,105 if the facility is licensed under the Meat Industry Act 1993 and the birds are obtained from the holder of a Commercial Wildlife (Wildlife Producer) Licence Type 3 and are captivity-bred.
Emus bred for slaughter by the holder of a Commercial Wildlife (Wildlife Producer) Licence Type 3 can be processed be the licence holder or by the holder of a commercial licence (wildlife producer) licence type 2.106
In addition to an annual licence fee (of $250 per licence), the licence holder must also pay a one-off fee of $300 paid to the Emu Industry Development Committee and make subsequent payments to the Committee of $2.50 per bird slaughtered.107
Commercial farming is effectively precluded for the holders of a private wildlife licences, who, while permitted to keep or possess emus, are restricted to keeping no more than ten emus (other than chicks under 4 weeks or eggs).108 A holder of a Commercial Wildlife (Wildlife Dealer) Licence Type 2 can also possess, keep, breed, buy, sell and dispose of emus.
A case study of how one obtains the relevant certification to breed emus in captivity and sell their eggs is included at the end of the chapter - it is quite a complex process.
Game meat processors operate under the auspices of the Meat Industry Act 1993 and the Wildlife Act 1995. Wildlife Act authority is required for the killing or processing of any native `wildlife', other than emus if obtained from a licensed emu farmer - as noted in the previous section. The required authority is a Commercial Wildlife (Wildlife Producer) Licence Type 2. This authorises the holder to "possess, keep, buy, sell, dispose of, and process dead wildlife as listed by schedule (schedule 5(B) and 7).109 The scheduled species currently include:
jjjj) Common brushtail possum;
kkkk) western and eastern grey kangaroos;
llll) whiptail wallaby;
mmmm) common wallaroo;
nnnn) red-necked wallaby;
oooo) red kangaroo;
pppp) Tasmanian pademelon;
qqqq) freshwater and saltwater crocodiles; and
rrrr) emu.
As only the captive-bred emu may be killed in Victoria, all other species, consequently, must be obtained from outside Victoria.
It is thus also legal to process shells of emu eggs and infertile emu eggs, as long as wildlife from which they are derived were raised in captivity,110 and export or import products of certain macropods and the shells of emu eggs.111
Honey
The provisions governing use of native plants for the production of honey are restricted those associated with obtaining access rights to Crown land.
Access to flora for the purposes of honey production on Crown land is permitted under three forms of licence:
ssss) bee farm licence - section 141;
tttt) bee range area licence - section 147; and
uuuu) apiary licence - section 149.
There are no prescribed assessment criteria, but by administrative decision they are not granted in areas of intensive recreation or areas of high conservational value. Most current sites are the legacy of historic access or rationalisation.
Where the land comes under the auspices of the Forests Act 1958 a Forest Act licence is required as honey and beeswax comes under the definition of `forest product' and the removal of any forest product requires a licence or permit (under section 52).
Recreational hunting is undertaken under the auspices of a game licence issued under the Wildlife Act 1975 (section 22A). A licence holder is permitted to hunt, take or destroy game (which, as previously noted, includes one native species of quail and a number of native ducks). To hunt game during a declared season a person requires a game licence as well as a firearm licence.112
Game licences are subject to endorsement for one of the following:
vvvv) for game birds, not including duck;
wwww) game birds including duck;
xxxx) game birds including duck and deer; or
yyyy) game birds not including duck and deer; and deer.
The holders of licences endorsed for duck hunting are required to pass a `waterfowl identification test' and the fees are proportional to the extent of the entitlement. No other form of competency is required.
Under the Wildlife Act 1975 (section 28A) the Secretary may also give written authorisation - to hunt, take or destroy wildlife if he or she is satisfied that the authorisation is necessary under defined conditions - damage, conservation management and so forth.113, 114 Employees of licence holders may also hunt endangered, notable and protected wildlife.115 Such provisions are, however, in effect, for control of wildlife, rather than aimed at providing for a form of recreation.
Recreational hunters do not require a game licence to hunt `pest' animals, a category, as previously noted, includes one native species - the dingo (as well as rabbits, foxes, and so forth).
Kangaroo Harvesting
The commercial harvesting of any native vertebrate animal, other than fish and declared `game', is not permitted in Victoria.116 While the Act itself does not preclude harvesting (`take') per se; this is only permitted by the holder of an appropriate licence.
Under the Wildlife Regulations 1992, only the holder of a `commercial wildlife (wildlife controller) licence - type 1', of which there are currently 17 such licence holders in Victoria, or the holder of a `commercial wildlife (wildlife controller) licence - type 2' (venomous snakes only) is permitted to `take' wildlife from the wild in Victoria. Such a licence holder can only take animals with the consent of the land-owner and only "take, destroy and sell or dispose" of the wildlife in accordance with conditions that may be specified.
Species that may be taken are defined by schedule to the Wildlife Regulations 1992 and currently include three species of kangaroo - eastern grey kangaroo, western grey kangaroo, and the swamp wallaby (eleven species of native bird including cockatoos, duck, emu, silver gulls, the common brushtail possum, common wombat and all venomous snakes can also be taken).117 There are no criteria defined as to the circumstances under which an animal can be taken or on the number than can be taken, although these may be specified as a condition of the licence.
In addition, the Secretary may give written authorisation to hunt, take or destroy wildlife for control purposes.118 If undertaken under such an `Authority to Control Wildlife', the species is specified on the Authority. Most such control Authorities are granted for the control of kangaroos.119
Under current administrative practise no commercial utilisation of the carcass or hide is permitted.
Live Animal Trade - Wholesale, and Pet and Aquarium Trade - Retail
The commercial trading of all species of native vertebrates other than fish requires authorisation under the Wildlife Act 1995. There are restrictions on the types of native wildlife a person can trade and these are based on the type of wildlife licence the person holds. The main relevant licence is the commercial wildlife (wildlife dealer) licence. There are two forms of this licence. A `Type 1' Licence holder is authorised to possess, breed, buy, sell and dispose of those taxa of wildlife listed in Schedules 1, 2 and 4 of the Wildlife Regulations 1992, whilst the `Type 2' holder also has access wildlife in Schedules 3 (Part A) and 7.120 There are common restrictions on holders of both types of licence, including, for example that they must operate from a premises nominated on the licence, they are confined to dealing with living wildlife, and that they cannot charge for displaying their wildlife. Their purchase of wildlife also is subject to various conditions.121
The Secretary may also give written authorisation to persons to buy, sell, acquire or receive wildlife, 122 if one of the various stated conditions are satisfied. 123
Persons may not import and export wildlife into and out of Victoria unless they have an import and export permit from the Secretary. 124 The Secretary must issue such a permit if various conditions are satisfied.125
It is legal to trade in `listed' as threatened (under the Flora and Fauna Guarantee Act 1988) or fish declared as `protected aquatic biota' (under the Fisheries Act 1998) with the necessary licence and authorisation.126 The operators of aquaria (that is, persons creating a habitat for and/or hatching, rearing, breeding, displaying or growing specified fish or fishing bait or other commercial purposes) require an aquaculture licence under section 43 of the Fisheries Act 1995 (under regulation 637 of the Fisheries Regulations 1998; if there is no entry fee a licence may not be required). The species permitted are specific to each licence - most are limited to a small number of species. There are no specific controls affecting the trade of other live fish, whether native or not.
There are no special provisions relating to the trade of invertebrates (unless they are a `listed' threatened species (under the Flora and Fauna Guarantee Act 1988), declared as `protected aquatic biota' (under the Fisheries Act 1998) or a `fish bait' species (under the Fisheries Act 1998), in which case trade is permitted subject to authorisation.
The Fisheries Act 1995127 and the associated Fishing Regulations 1998128 both provide for, and regulate, fishing for non-commercial or recreational purposes, that is, forms that exclude the sale of fish.
Take of any `fish' requires a licence,129 of which there are two categories relevant for recreational anglers:
zzzz) a recreational fishery licence; and
aaaaa) a recreational netting licence - entitling the holder to use a mesh net in specified lakes (27 lakes in all).130
The entitlements and general conditions of recreational fishery licences are clearly defined in the Fisheries Regulations 1998. The holder of a recreational fishery licence is authorised:
bbbbb) to take, or attempt to take, fish other than for sale from inland waters by the use of recreational fishing equipment other than a recreational mesh net; and
ccccc) to take or attempt to take, rock lobster from marine waters other than for sale by the use of a recreational hoop net or by hand; and
ddddd) to use or possess a recreational hoop net in, on or next to Victorian waters.
Since 15 July 1999, a fishing licence is also required to fish in bays, inlets, estuaries and marine waters, as well as inland waters.
The holders of a recreational netting licence are authorised to use a recreational mesh net in 27 inland lakes defined by schedule.131 These licences are to be phased out - by 1 September 2000 recreational use of netting in inland waters will be prohibited.132
An innovation of the 1995 legislation was the introduction of `Group Recreational Fishery Licences'. These provide for the representative of a group to hold a licence, under which other members of the group can take fish.133
As with commercial fisheries, the Minister, may appoint a Fishery Committee, under Section 93 of the Act, to provide advice on the management of the fishery and the preparation of fishery management plans.
An array of restrictions apply - encompassing catch size, size and sex of individual specimens, seasons, fishing techniques and so forth. These restrictions are prescribed in the Fisheries Regulations 1998. Recreational fishing is prohibited from a number of defined waters, including many domestic water storages and may be prohibited or regulated in any `fishery reserves' declared under Section 88 of the Fisheries Act 1995. Park regulations under the National Parks Act 1975, may preclude the taking of native fish, including molluscs and crustaceans in certain parks.
In practise, however, most native fish can be caught in the majority of Victorian waterways. The holder of recreational fishing licence is not allowed to trade fish.
A licence is required under the Prevention of Cruelty to Animals Act 1986 for:
a) the carrying out of scientific procedures on or in connection with animals [vertebrates and crustaceans] on specified premises or a specified part of the premises forming part of the establishment; and
b) the carrying out of approved field work by the establishment.134
The breeding of any animal (animals are defined as any non-human vertebrate as well as crustaceans) for the sale to a scientific establishment for experimentation also requires the breeder to be licensed - a breeding establishment licence under section 29 of the Prevention of Cruelty to Animals Act 1986.135
The Fisheries Act 1995 also provides for the granting of a general permit which authorises the taking of fish for research, aquaculture, educational and scientific purposes and the selling or disposing of fish obtained under that permit.136 This permit can be varied by regulation and have conditions inserted or changed137 by the Secretary of the Department of Natural Resources and Environment.
Most other more general research is undertaken under permit issued by the relevant land management authority.
One submission considered that the current wildlife laws made it illegal for an amateur naturalist to `impede the natural progress' of wildlife.138 This was considered an impediment to the activities of amateur naturalists - as "it is virtually impossible to uphold this law and at the same time study native reptiles and frogs in a fruitful manner". 139 It was also submitted that it was difficult for amateurs to obtain research permits in Victoria (especially in comparison with the authorities in South Australia).140
Subsistence and Cultural Use
There is provision within the Wildlife Act 1975 that allow Aboriginals, with written authority from the Secretary, to use wildlife for "aboriginal cultural purposes".141 This provision does not specifically exclude commercial activity.
The Fisheries Act 1995 has, as one of its objectives, the facilitation of Victorian fisheries for "traditional uses",142 however, the Act does not include any provisions that are specific to such use.
Taxidermy
If a taxidermist works on native mammals, birds, reptiles, and amphibians a wildlife licence under the Wildlife Act 1975 is required. The licence applies to the operator, not the business, although, under the Wildlife Regulations 1992, premises at which the specimens are held must be specified in the licence (regulation 20).
Of the 17 categories of wildlife licence prescribed under the Wildlife Regulations 1992, two permit the processing of `wildlife' for the "purpose of preserving, preparing and mounting, and restoring parts or complete specimens of [defined] species of dead wildlife ...". The two licences are:
eeeee) a Commercial Wildlife (Wildlife Taxidermist) Licence Type 1;143 and
fffff) a Commercial Wildlife (Wildlife Taxidermist) Licence Type 2144.
A Type 1 licensee is restricted to operations on common native species (and game) that do not require a licence to breed or sell (as listed in Schedule 5, Part A and Part C of the Wildlife Regulations 1992). A holder of a type 2 licensee can process any wildlife that is permitted to be kept in Victoria (that is all those animals listed in Schedules 1 to 4 and 7 of the Wildlife Regulations 1992).
There are no separate requirements to obtain either licence; the only difference is in the associated fee, which is higher for the Type 2 licence. The only prerequisites are those generic for all wildlife licences, covering age (Wildlife Regulations 1992 regulation 18) and whether the applicant is "a fit and proper person to hold the licence applied for" or has previously been found guilty of an offence under the Act, the suitability of the premises, and so forth, as determined by the Secretary.145
Ecotourism - Wildlife Parks and Botanical Gardens
Zoos and wildlife parks come under the auspices of two Acts - the Wildlife Act 1995 and the Zoological Parks and Gardens Act 1995. The latter Act is only relevant to the public zoos administered by the Zoological Parks and Gardens Board at Royal Park, Werribee, and Healesville, although there is a provision (under section 24) for other lands of reserves to be declared to come under the management of the Board.
Part IX of the Wildlife Act 1995 differentiates between a :
ggggg) zoo - "any place where a collection of zoo-animals [that is defined exotic animals] is kept for public viewing, entertainment or amusement ..." (A zoo may also keep `wildlife');
hhhhh) animal exhibition - "any collection of zoo animals or wildlife or both that is displayed or kept in connection with the conduct of a circus, sideshow, or travelling show of any kind"; and
iiiii) wildlife park - "any place where a collection of wildlife is kept or retained for public viewing, entertainment or amusement". 146
Any person conducting an animal exhibition or operating a zoo is required to be the holder of a licence, other than in a number of prescribed circumstances. The duration of a zoo and animal exhibition licence is generally 12 months from the date of issue147 but there is provision for variation148 to the terms of these licences. There are no provisions prescribed for the operators of a `wildlife park'.149
One of the commercial wildlife licences under the Wildlife Regulations 1992 provides for and regulates the keeping of collections of wildlife - the Commercial Wildlife (Wildlife Displayer) Licence.
This licence entitles the holder to possess, keep, breed, sell, buy, display or dispose of wildlife in permanent and fixed facilities at specified premises.150 Any one displaying wildlife, including at other sites, is required to present an educational or conservation theme. 151 There are many conditions attached to this form of licence but the key ones are that the display must minimise the risk of escape by the wildlife,152 and injury to humans.153
It is not clear whether the operator of a zoo which keeps `wildlife' also requires a commercial wildlife licence.
In addition, the Wildlife Act 1995 includes a form of licence termed `commercial wildlife (wildlife demonstrator) licence'. Holders of this form of licence have similar entitlements to those of the holders of private licenses but, in addition, the licence specifically permits various aspects of public display154 and demonstration, subject to minimising155 the risk of escape of the taxa and risk to persons. The holder may only have in his/her possession a maximum of ten self-sufficient specimens (ie adult) and their non-self sufficient offspring.156
Botanical Gardens are generally created and managed under the Crown Land (Reserves) Act 1998 or the Royal Botanic Gardens Act 1991. There are no specific restrictions on the use or management of native plants under the relevant provisions of these Acts.
Issues
There is a complex and large of array of legislation affecting the various sectors of utilisation. The level of control applied is highly variable and the basis for such variability is not always obvious. There is duplication of control, especially for those sectors affected by tenure-based controls. The granting of licences under some provisions is based on well defined criteria and subject to statutory conditions, for others the processes are rather laissez faire. Requirements for the monitoring of performance and review are highly variable.
