PROTECTION OF ECOLOGICAL AND BIODIVERSITY VALUES

In the following section the Committee considers regulatory controls that relate to the objective of ensuring that utilisation does not compromise ecological and biodiversity values. The following areas are covered:

a) avoiding extinction;

jjjjj) avoiding deleterious effect on the welfare or conservation of utilised taxa;

kkkkk) prevention of cruelty;

lllll) avoiding deleterious effect on the conservation of other taxa;

mmmmm) ensuring ecologically sustainable development; and

nnnnn) protection of habitat and potentially threatening processes.

A brief comparison of regulatory controls affecting exotic species with those of native species is also included.

Perhaps the prime overriding provision is in the Flora and Fauna Guarantee Act 1998 which includes a requirement that a Flora and Fauna Guarantee Strategy be prepared and that it must include proposals that guarantee the survival, abundance and evolutionary development of all flora and fauna in the wild.¹⁵⁷

Avoiding Extinction

The primary legislative instrument that responds to the most basic of biodiversity objectives, that of avoiding extinction, is the Flora and Fauna Guarantee Act 1988. The relevant provisions of this Act are restricted to dealing with species indigenous to Victoria. The first objective is to:

guarantee that all taxa of Victoria's flora and fauna ... can survive [ie not become extinct], flourish and retain their potential for evolutionary development in the wild.¹⁵⁸

The key relevant provision of the Act is the placement of a species or flora or fauna community facing potential extinction onto a list of taxa and communities that are `threatened' (under Schedule 2 of the Flora and Fauna Guarantee Act 1988). The Act provides this option for all biota with the exception of humans and certain taxa defined by schedule. The latter currently only include `human disease organisms'.¹⁵⁹

For any taxon of native flora and fauna to be placed on the `threatened' list it must satisfy criteria defined by regulation. Currently, it must meet the following criteria:

ooooo) it is in a demonstrable state of decline that is likely to result in extinction;

ppppp) it is significantly prone to future threats likely to result in extinction;

qqqqq) it is known to have occurred in Victoria after European Settlement but has not been sighted in the State for 40 years;

rrrrr) its reproduction or recruitment has seriously declined or is not occurring;

sssss) it is very rare in terms of abundance or distribution; and

ttttt) the threat is currently operating and is expected to operate at a level in future that is likely to result in extinction of the taxon.¹⁶⁰

For any flora or fauna community to be placed on this list it must also satisfy criteria defined by regulation. They are similar to those defined for individual taxon.¹⁶¹

The listing process involves consideration by an independent scientifically-based committee, public comment, comment by other defined statutory bodies¹⁶² and decision by the Minister and Governor in Council.

Listing of a species or community brings into play a number of protective mechanisms:

uuuuu) preparation of an action statement - obligatory;

vvvvv) making of an interim conservation order to conserve the critical habitat (at the Minister's discretion), with use permits only permitted by the `Director-General' (now Secretary) after consideration of listed relevant matters.;

wwwww) suspension of any licences, permits or other authorities that may be in conflict with an interim conservation order - at the Ministers discretion;

xxxxx) restriction of taking listed flora from Crown land or `critical habitat' on freehold - obligatory other than for limited exceptions (no specific restriction if on freehold land not part of a defined `critical habitat' area);¹⁶³

yyyyy) restriction of taking fish, unless specifically authorised by the Governor in Council or if taken under licence granted by the `Director-General' (now Secretary); ¹⁶⁴

zzzzz) restriction of taking and trading in invertebrate fauna (but only to the extent of protection offered by the Wildlife Act, which provides for take and trade under licence).

Issues

While the Flora and Fauna Guarantee Act 1988 is effectively all-encompassing, there are a few issues of potential concern or inconsistency. These include:

aaaaaa) listing requires nomination - there is no comprehensive process of assessment or monitoring of species' populations;

bbbbbb) there may be a significant time delay between nomination and the decision on listing (not withstanding a requirement for consideration of nominations to be made "as soon as possible after [nomination]");

cccccc) many listed species do not have action plans, despite these being obligatory;¹⁶⁵

dddddd) preparation of an action plan is obligatory, implementation is not;

eeeeee) there are no specific provisions for `listed' vertebrate taxa;

ffffff) there are no specific provisions for `listed' plant taxa on freehold land outside a declared `critical habitat' area;

gggggg) there are no defined matters that must be taken into account before issuing a licence to take or trade in a `listed' fish;

hhhhhh) there are no special provisions to restrict the take or trade in `listed' vertebrates - other than that provided to most vertebrate wildlife under the Wildlife Act 1975.

Consequently, this legislation does not provide a fail-safe mechanism for avoiding the extinction of those species that may be subject to utilisation.

Not withstanding these apparent shortcomings, the legislation does provide powerful tools to pro-actively protect habitat and maintain ecological processes and the Committee understands that the legislation has been a model for a number of other jurisdictions. However, the Committee notes that it has not been actively put into effect. In particular, there are currently no management plans prepared under the Act, no defined critical areas and no interim conservation orders.

The `purposes' of the Wildlife Act 1975 also includes an objective of preventing "taxa of wildlife from becoming extinct". However, the Act provides no special provisions to assist in the achievement of this objective, over and above its general protective provisions for all native vertebrate fauna. Indeed several of the `listed' species under the Flora and Fauna Guarantee Act 1988 are also included on Schedules 1, 2 or 3 Part A of the Wildlife Regulations 1992.¹⁶⁶ This means that these threatened species can be kept and traded by the holders of various private and commercial wildlife licenses under the same provisions as more common species.¹⁶⁷

Avoiding Deleterious Effect on the Welfare or Conservation of Taxa

The level of legislative protection and ability to influence the use of biota varies greatly according to the type of plant or animal. Whales have the highest level of protection (including restrictions on interfering with the animals); terrestrial invertebrates (unless a `listed' species, ie one that is threatened with extinction) have none. Five different statutes provide protection, as previously discussed, according to the type of plant or animal. The level of protection is also dependent on, for some grouping of species, the tenure of the land on which they occur.

A key generic management process that is available are management plans made under the Flora and Fauna Guarantee Act 1988.¹⁶⁸ These may cover "any taxon or community of flora or fauna or `potentially threatening process'. Such plans are required, amongst other things, to state the way in which benefit will be given to the taxon or community.

In addition the Prevention of Cruelty to Animals Act 1986 (section 7) provides for the Minister, with the approval of the Governor in Council, to prepare, vary or revoke any code of practice specifying procedures for the keeping, sale, hunting, shooting, catching, husbandry, housing for scientific research, etc., of any animal (animal being defined as vertebrate or crustacean).¹⁶⁹ The same section also lists the many sources which may form the content of these types of Codes. ¹⁷⁰ Part 5 (sections 31-55) of the Conservation Forests and Lands Act 1987 deals with the procedures, preparation, approval, and contents of codes of practice.¹⁷¹

One submission raised the importance of the distinction between animal welfare and animal conservation - that is between the welfare of individual animals or plants and the conservation of wild populations.¹⁷² It was noted that "current `protective' legislation regulating research and trade in native wildlife is advocated as fulfilling both conservation and animal welfare concerns, where as perhaps resources need to be "channelled more towards protecting populations and overall biodiversity rather than individual organisms". ¹⁷³

Vertebrate Fauna, Other Than Whales and Dolphins, and Fish

The Wildlife Act 1975 provides mechanisms for the protection of all indigenous vertebrates, other than humans and fish.¹⁷⁴ The basic premise is that all species of vertebrate fauna indigenous to Victoria, other than fish, whales and dolphins are `protected' - irrespective of whether they are part of a wild population or a captive population. The Act provides for the exclusion of species from this protection if:

iiiiii) it is a `pest animal' as declared under the Catchment and Land Protection Act 1994 - by the Governor in Council on the Minister's recommendation following independent assessment against three defined criteria;¹⁷⁵

jjjjjj) it is declared to be `unprotected wildlife' - by the Governor in Council (no assessment criteria or independent process is required);¹⁷⁶ and

kkkkkk) it is declared to be `unprotected in an area' of Victoria for a specified period - by the Governor in Council on the Minister's recommendation, if it is considered to be causing injury or damage to property, vegetation or other animal.¹⁷⁷

As previously noted, there is currently only one native animal declared as a pest animal - the dingo (Canis familiaris dingo),¹⁷⁸ none declared `unprotected' and five declared `unprotected in an area'.

There are four categories of pest animal of which native animals may only be declared as an `established pest animal'.<sup>179</sup> With few exceptions, such declaration means that the animal cannot be imported, kept or sold, and land owners can be directed to control and "as far as possible eradicate" the animals.<sup>180</sup> Hunters can also hunt and kill such animals. The declaration of `unprotected in an area' may include conditions and restrictions. For example the current declarations restrict killing to landowners engaged in "the rural production of commercial crops",¹⁸¹ and also restricts the method of control.

While classification as `protected wildlife' means that the taking or trading of the animal is not permitted, the Act does provide for take, trade, keeping and breeding if licensed or otherwise authorised by the Secretary or if exempted by regulation. These provisions are for various situations as follows:

llllll) wildlife licences - these can be subject to "any conditions, limitations and restrictions" as may be defined by the Secretary¹⁸² and must not be granted if it "would be deleterious to the welfare or conservation of ... [the wildlife]";¹⁸³

mmmmmm) game licences - these can be subject to "any conditions, limitations and restrictions" as may be defined by the Secretary and are restricted to hunting, taking or destroying game¹⁸⁴ as declared by the Governor in Council. ¹⁸⁵ A game licence must not be granted if it "would be deleterious to the conservation [but not the welfare] of any taxon or any kind of game".¹⁸⁶

nnnnnn) authorisations - for certain specified purposes and subject to "any conditions, limitations and restrictions" as may be defined by the Secretary;

oooooo) exempted by regulation - currently, under the Wildlife Regulations 1992, there are no restrictions on the keeping or breeding (or for some species, trading other than from a shop) some 24 common species listed by Schedule, including king quail, budgerigar, zebra finch, cockatiel, two species of dove, three species of cockatoo, dingo, and a number of frogs, lizards and tortoises.

Other than for species exempted by regulation, the legislation thus provides wide scope to place conditions on the utilisation of vertebrate wildlife. Such conditions could encompass welfare and conservation aspects of such use.

In practise, most conditions are prescribed by regulation according to the category of licence (wildlife licences) or category of endorsement (game licences). The main types of conditions used are:

pppppp) on the applicant - age and good character;

qqqqqq) on the premises - which may need to be specified and meet requirements as to size and so forth;

rrrrrr) on the species - (no formal assessment criteria applies, but may be listed on the advice of the Wildlife Possession, Trade and Advisory Committee);¹⁸⁷

ssssss) on tracking movement, by way of record keeping, transfer papers, and tagging - some licences only; and

tttttt) on the numbers of wildlife held or taken, such as bag limits (some licences only).

The Wildlife Act and the Wildlife Regulations also make other provisions for the welfare and conservation of encompassed fauna. For instance:

A licence or written authorisation is required to wilfully molest, disturb, chase, herd, separate or injure protected wildlife during the close season¹⁸⁸.

The Secretary may give written authorisation to hunt, take or destroy wildlife if he or she is satisfied that the authorisation is necessary for the care, treatment or rehabilitation of sick or injured animals.¹⁸⁹

Wildlife that is not self sufficient must not be bought, sold, transported, disposed of, conveyed or controlled without specific authorisation of the Secretary or unless the situation falls within listed exceptions.¹⁹⁰

Persons who hold a Commercial Wildlife Dealers Licence must provide other individuals who buy or accept their wildlife with printed information setting out the requirements for the proper feeding, care, housing and welfare of the wildlife bought or accepted. ¹⁹¹

Animals declared to be `unprotected' or `unprotected in an area' are not subject to any form of monitoring - such species (with the exception of the common brushtail possum) can be taken and destroyed without any requirement for record of the number taken or indeed an assessment of the numbers occuring in the locality prior to being taken.

The Prevention of Cruelty to Animals Act 1986 also applies to vertebrate fauna, other than humans (see section below) but not if the treatment of the animal is undertaken in accordance with Catchment and Land Protection Act 1994 (for example controlling a `pest' animal') or the Wildlife Act 1975 (for example under the auspices of a wildlife licence), nor if the treatment is carried out in accordance with a `Code of Practise'.

Whales and Dolphins

Whales and dolphins are not subject to most of the general provisions applying to `protected wildlife', but are, however, covered by similar provisions under other clauses of the Wildlife Act 1975.<sup>192</sup> These provisions make it an offence, other than in certain restricted circumstances, to kill, take or interfere with a `whale', irrespective of whether in the wild or captive. These provisions do not, however, apply if the action was taken under a permit granted by the Secretary.¹⁹³

A permit can only be granted for specified purposes, and subject to specification of the type and number of `whales' affected, and record keeping requirements.¹⁹⁴ A permit is not permitted to be granted "if the Secretary is satisfied that the grant of a permit will adversely affect a population of a particular taxon of whale".¹⁹⁵

The Prevention of Cruelty to Animals Act 1986 also applies to whales and dolphins (see section below) but not if the treatment of the animal is undertaken in accordance with the Wildlife Act 1975 (for example under the auspices of a permit), nor if the treatment is carried out in accordance with a `code of practice'.

Fish and Specified Aquatic Invertebrates

The Fisheries Act 1995 is the key legislation that provides for the general welfare and conservation of `fish'. The term `fish' includes not only fish, but aquatic molluscs, crustaceans (most, but not all of which are aquatic), echinoderms (all marine), and any other species of aquatic invertebrate declared by Order in Council to be `fish'.¹⁹⁶ The declaration of additional aquatic invertebrates is not subject to any defined criteria or process of independent assessment.

Unlike the basic premise of the Wildlife Act 1965, the Fisheries Act 1995 is based on the premise that all `fish' can be taken unless otherwise prescribed.

The Act, however, includes a number of mechanisms that can be used to assist with the welfare or conservation of `fish'. These include:

uuuuuu) management plans (for example for a fishery management plan - which must identify critical components of the ecosystem, and current or potential threats to those components);¹⁹⁷

vvvvvv) regulations - which may cover, for example the type of equipment used;

wwwwww) licences - access licences (commercial), fish receivers licences, aquaculture licences, recreational fishery licences;

xxxxxx) general permits - for specified purposes, subject to "any conditions that the Secretary thinks is appropriate";¹⁹⁸

yyyyyy) quotas on catch - for a specific period, fishery, zone or access licence as proclaimed by the Governor in Council on the recommendation of the Minister; or by the Secretary¹⁹⁹

zzzzzz) closures - by time period, fishing method or species, as defined by regulation or `fisheries notice';²⁰⁰ and

aaaaaaa) size and catch limits - as defined by regulation. ²⁰¹

Such mechanisms apply irrespective of whether the `fish' is part of a wild or captive population.

Examples subject to current Fisheries Regulations are the setting of minimum sizes for the catching fish found in Victorian water²⁰², the setting of catch limits²⁰³, the requirement to keep monthly catch records²⁰⁴, the declaration of closed seasons²⁰⁵ and the prohibition on the use of certain equipment or fishing techniques²⁰⁶.

There are substantial penalties for breaches of these conservation measures in relation to fish. There are also restrictions or prohibitions on the use of various forms of fishing equipment in named stretches of Victorian inland waters.²⁰⁷

There is also further provision in the Fisheries Act 1995 for the Governor in Council, by order, to declare any taxon or community of flora or fauna to be `protected aquatic biota' for all or part of the State.²⁰⁸ There are no criteria for declaration. The implication of such protection is restricted to direct take of the biota - it makes it an offence to take, injure, keep, release or sell any declared protected aqua biota. However, a permit can be granted to permit such take at the discretion of the Secretary or by Order in Council, unless the Secretary considers it inconsistent with any relevant management plan or the welfare of any relevant fishery or aquatic ecosytem.²⁰⁹ Of the species currently declared as protected aquatic biota, all are marine. Regulations may also prohibit the taking of invertebrates.²¹⁰

The Fisheries Act 1995 (Vic) uses the concept or term `priority species'²¹¹ to protect fish that occur in limited numbers and to create special conditions in relation to the legal commercial taking of such species. To date these provisions have only been used for marine species.²¹²

Another provision, relevant to welfare, is:

Persons with access licences must immediately return to the water with the least injury possible any species of fish not covered by the particular licence.²¹³

The Prevention of Cruelty to Animals Act 1986 also applies to fish and crustaceans (see section below) but not to recreational or commercial fishing if carried out in accordance with the Fisheries Act 1995, or if the treatment of the animal is undertaken in accordance with a `code of practise'. In effect, fish are not subject to the Act.

Terrestrial Invertebrates and Unspecified Aquatic Invertebrates

Other than aquatic invertebrates declared as `fish' under the Fisheries Act 1995 and any species listed as threatened under the Flora and Fauna Guarantee Act 1988, there is no legislative provision for the general welfare or conservation of invertebrates. Examples of such unprotected invertebrates include beetles, butterflies and moths, spiders, terrestrial snails, sponges, sea anemones and corals.

Despite the lack of protection or ability to regulate or monitor take, micro-organisms are of vital importance to ecosystems.

Microbiota

There is no legislative provision for the general welfare or conservation of microbiota.

Plants

The Flora and Fauna Guarantee Act 1988 is the main Victorian legislation that provides for the general protection of native plants (other than of plants with value for timber production). However, such protection only applies if the plant has been declared as `protected flora' by the Governor in Council.²¹⁴ There are no defined criteria or independent assessment required for declaration. As previously noted, only approximately 25 percent of Victoria's native flora is so designated.

If a taxon is classified as `protected flora' a number of provisions come into place, most notably that "a person must not take, trade in, keep, move or process protected

flora ...".²¹⁵ However, a number of exemptions are provided:

bbbbbbb) if the taking was accidental;

ccccccc) if taken by the owner of the land or agent (unless part of a its defined `critical habitat') and not traded - that is there is effectively no provision for regulation of plants on freehold lands;

ddddddd) if the flora was propagated from flora that was lawfully obtained and kept; or

eeeeeee) if it was taken under licence, permit or Governor in Council Order. ²¹⁶

Licences and permits and Governor in Council Orders must not be granted if in the opinion of the `Director-General' (now Secretary) or the Governor in Council considers that it "would threaten the conservation of the taxon of community of which the flora is a part";²¹⁷ or, in the instance of a permit, the Director-General considers that "the flora is a serious cause of injury to property, crops, stock or listed taxa or communities of flora or fauna."²¹⁸ There is no specific power to make conditions on licences or permits in the legislation (although it may contain "those terms and be limited in those ways which the Director-General thinks is necessary".²¹⁹

Other welfare provisions provide for confidentiality of information:

The Director-General [now Secretary] with the approval of the Minister may declare information about flora and fauna to be confidential if the Director-General is of the opinion that the disclosure of that information is likely to result in an unreasonable level of harm being done to the flora or fauna or its critical habitat.²²⁰

Issues

There is an array of primary legislation that includes provision for applying welfare or conservation measures to flora and fauna. This legislation variously:

fffffff) applies different approaches to the same issues;

ggggggg) has similar but slightly different provisions for the same matters; and

hhhhhhh) may or may not define criteria and assessment processes for discretionary approvals.

Notably all vertebrate animals other than fish are subject to protection unless specifically excluded, where as fish and aquatic invertebrates and flora are unprotected unless specifically declared a `protected' species. Terrestrial invertebrates and microbiota are not only generally unprotected, but there is no enabling provision to provide for their welfare or conservation should this be desired (unless they are considered to be threatened with extinction).

Even where a species is declared as a `protected' species, this does not necessarily invoke clauses managing its use.

The legislation generally makes little differentiation between use of wild populations and captive or cultivated populations.

Prevention of Cruelty

Other than the general provisions for welfare outlined in the previous section, the key legislation addressing cruelty is the Prevention of Cruelty to Animals Act 1986. Under this legislation, there are various offences²²¹ in relation to the infliction of cruelty or aggravated cruelty on animals - the definition of `animals' is sufficiently broad to cover native fauna.²²²

This legislation makes it an offence to act cruelly, as defined in a number of clauses, to a vertebrate animal or crustacean.²²³ These clauses include any action which:

iiiiiii) wounds, mutilates, tortures, overrides, overdrives, overworks, abuses, beats, worries, torments or terrifies an animal; ²²⁴

jjjjjjj) overloads or overcrowds an animal; ²²⁵

kkkkkkk) drives, conveys, carries or packs an animal in a manner that may it cause unnecessary pain and suffering; ²²⁶

lllllll) abandons "an animal of a species usually kept in a state of confinement or for a domestic purpose".²²⁷

The legislation also prohibits certain activities such as using baits and lures, trap-shooting, and leg-hold trap, and regulates scientific procedures undertaken on animals and in any associated breeding establishments.²²⁸

Section 42 of the Act provides for the Governor in Council to make regulations for, amongst other things, "the conditions under which animals may be kept in captivity, including the sizes of enclosures and cages" and minimum standards of licensed scientific and scientific breeding establishments.

A key provision of the legislation is the making of a `codes of practice', which may be made by the Minister with the approval of the Governor in Council but is subject to disallowance by either house of Parliament. A `code of practice' 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 animals.²²⁹

The Act does not, however, include any requirement for a code of practise to be applied. The incentive for their use is that the provisions of the Act do not apply to any treatment of an animal undertaken in accordance with a `code of practice'. Further, there are no defined criteria of requirement for independent assessment of a `code of practice'.

The Act also does not apply to:

mmmmmmm) slaughter of animals in accordance with the Meat Industry Act 1993 or any Commonwealth Act;²³⁰

nnnnnnn) anything done in accordance with the Catchment and Land Protection Act 1994;²³¹

ooooooo) anything done in accordance with the Wildlife Act 1975;²³²

ppppppp) recreational fishing or angling conducted in accordance with the Fisheries Act 1995;²³³ and

qqqqqqq) commercial fishing or fish processing conducted in accordance with the Fisheries Act 1995.²³⁴

There are also a number of relevant provisions under the Wildife Act 1975 which affect non-fish vertebrates. Persons engaged in licensed commercial fishing are immune²³⁵ from prosecution if the killing, taking, injuring or interfering with whales was carried out in humane way to prevent the `whale' from suffering. Holders of a Commercial Wildlife (Wildlife Producer's) Licence Type 3 must ensure that any wildlife that needs to be destroyed under licence is killed humanely in a sudden and painless way.²³⁶ All wildlife housed or transported under any wildlife licence must be protected from predators and unauthorised persons.²³⁷

Issues

A code of practice can be used as a defence to prosecution under the Act, however, a code of practice may contain procedures involving cruelty - there is no requirement under the Act for any procedure included in a code of practise to not be cruel. Consequently a code of practice could be used to escape liability under the Act, that would otherwise apply.

In addition, virtually all consumptive use of vertebrate native fauna is undertaken under the auspices of the Wildlife Act 1975 and the Fisheries Act 1995, thus taking them outside the jurisdiction of the Prevention of Cruelty to Animals Act 1986.

Avoiding Deleterious Effect on the Conservation of Other Taxa

Cross-breeding

The only statutory provision dealing with cross breeding relates to non-fish vertebrate fauna:

A person must not permit different taxa of wildlife to inter-breed unless those taxa of wildlife are known to inter-breed in the wild.²³⁸

Release into the Wild

The Flora and Fauna Act 1988 includes a provision (section 49) that makes it an offence, without permit, to abandon or release any `prescribed' flora into the wild. However, as at 30 June 1999, no flora has been so `prescribed', in effect negating the value of the provision.

The Wildlife Act 1975 includes a provision (section 52), that makes it an offence, without a permit, to "release from captivity or confinement in circumstances which makes recovery impossible or uncertain" any `wildlife' or any other proclaimed animal.

Under the Fisheries Act 1995, declared `protected aquatic biota' can only be released into Victorian waters with permit, and declared `noxious aquatic species' can not be released into Victorian waters or any aquarium, hatchery or any other waters whether or not private property. The Fisheries Regulations 1998, also includes a regulation (regulation 530) that makes it an offence to "stock fish into any Victorian waters", other than in accordance with a licence or other authority.

There is no restriction on the release of terrestrial invertebrates.

Issues

The available provisions for managing potential deleterious effect of utilisation on non-target species are of variable application and quality.

Ensuring Ecologically Sustainable Development

The requirement for an activity to be undertaken in an ecologically sustainable manner is referred to in some of the relevant legislation. Most commonly such references are found in the general objectives of the relevant legislation. For example:

rrrrrrr) the objectives of the Fisheries Act 1995 include a number of references to ecological sustainability - "to provide for the management, development and use of Victoria's fisheries, aquaculture industries ... in an efficient, effective and ecologically sustainable manner", and "to promote sustainable commercial fishing ... .";²³⁹

sssssss) the objectives of the Wildlife Act 1975 includes - "to establish procedures in order to promote ... the sustainable use of and access to wildlife ... .";²⁴⁰

ttttttt) one of the objects of the Conservation, Forests and Lands Act 1987 is to make productive, educational and recreational use of the State's flora and fauna in an environmentally sound way;²⁴¹ and

uuuuuuu) the first broad objective of the Fisheries Regulations 1998 also refers to sustainability - "to provide for the control and management of fisheries in Victoria on a sustainable basis". ²⁴²

There are, however, virtually no direct references to ecological sustainability within the various sections of the legislation, including those sections outlining criteria for the granting of licences and permits for use. A notable exception is in the legislation dealing with fish.

Under the Fisheries Act 1995, a fisheries management plan must be consistent with the objectives of the Act (that is including those regarding sustainable use) and is "to specify policies and strategies for the management of the fishery ... on an ecologically sustainable basis having regard to relevant commercial, recreational, traditional and non-consumptive uses."²⁴³

The concept of sustainable yield is used in the Forests Act 1958, but it only applies to hardwood sawlog supplies taken from Victorian forests - not forest produce such as non-timber native plants. ²⁴⁴

Other references may be less direct. For instance, the Joint Authority of the Commonwealth-State Management of Fisheries has amongst its various functions the obligation of ensuring that "resources are not endangered or over exploited".²⁴⁵

Techniques for ensuring a sustainable level of harvesting are generally of two types - input controls and output controls. The major form of input control is undertaken through limiting the number of people who can take biota, by requiring a licence or permit and, more effectively, restricting the number of licences allocated. Output controls include measures such as limiting the number of specimens that may be taken or kept.

Issues

There are effectively no legislative requirements for utilisation activity to be undertaken in a manner consistent with the principles of `ecologically sustainable development', nor for approval to take ESD issues into account.

Requirement for a utilisation activity to be undertaken in an ecologically sustainable manner is of variable application and quality.

Protection of Habitat and Potentially Threatening Processes

There are a number of provisions in a variety of statutes that provide for the protection of public land habitat. These include:

vvvvvvv) parks and reserves under the National Parks Act 1995;

wwwwwww) reserves under the Crown Land (Reserves) Act 1978;

xxxxxxx) fisheries reserves under the Fisheries Act 1995 (section 88) - not specifically restricted to public land but declared waters only;

yyyyyyy) State wildlife reserves and nature reserves under the Wildlife Act 1975;

zzzzzzz) prohibited areas under the Wildlife Act 1975 (section 33) - covering habitat of any taxon of wildlife in which persons are prohibited from entering; and

aaaaaaaa) forest parks and reserves under the Forests Act 1958 (section 50 reserves).

There are no provisions that specifically apply exclusively to freehold lands, other than controls that may be included in planning schemes under the Planning and Environment Act 1987.

With the exception of one of the Wildlife Regulations, which states that "all persons must not wilfully damage, disturb or destroy any wildlife habitat",²⁴⁶ and the provisions of the Wildlife Act 1975 for the declaration of any locality as a `wildlife management co-operative areas' (for which a `scheme of operation' may include measures to restore or improve wildlife habitat),²⁴⁷ the only statute that generally provides for the protection of habitat is the Flora and Fauna Guarantee Act 1988.

This last Act gives the `Director-General' (now Secretary) the authority to determine the habitat of any taxon or community of flora or fauna (whether `listed' or not) that is critical to the survival of that taxon or community.²⁴⁸ The determination of an area as `critical habitat' is, however, of no statutory consequence unless it is the `critical habitat' of a `listed' species or community (or a species or community nominated for listing) and subject to an interim conservation order made by the Minister.²⁴⁹ The objective of an interim conservation order is to conserve the critical habitat of a listed or threatened species of flora and fauna.

An interim conservation order can prohibit or regulate any activity or process that takes place in that habitat or, if it adversely affects that habitat, any activity that takes place outside that habitat.²⁵⁰ Landholders or managers of land or water which forms part of that critical habitat are required to comply with that order²⁵¹ and the Order prevails over planning schemes.²⁵² None-the-less landholders and water managers can seek a special permit to conduct activities within critical habitats.²⁵³ Further more, an Order cannot be made for the `critical habitat' of a `listed' community on private land.²⁵⁴

The Flora and Fauna Guarantee Act 1988 also provides for the designation and management of `threatening processes' and are subject to provisions similar to those described above for taxa and communities - they may be `listed' (on schedule 3 of the Act) if they meet prescribed criteria laid down in the Flora and Fauna Guarantee Regulations 1990, and if so listed must be subject to an action plan and may be subject to a management plan.

Issues

Issues relating to habitat protection are taken up in the next chapter - Chapter 10.

Controls Relating to Native Species Compared to Exotic Species

Wild Harvest

There are controls on the wild harvest of a number of exotics, including for the protection of fish and game, as well as for certain specified `noxious weeds' and `pest' species. Indeed the controls, as outlined above, for the wild harvest of native species may be less than that of some exotic species.

Farmed or Cultivated Species

There are effectively no differences between statutory controls applying to cultivated native and exotic plants.

With respect to native fauna, there are clear differences. Persons who farm native fauna are required to meet the requirements of the Wildlife Act 1975 or the Fisheries Act 1995 as well as any other more general requirements that may apply to any farm operation. Not only do these requirements include the need for licensing, keeping of books, preparing returns and payment of fees, but they also control trade. Permits are required to import and export between states, and there are controls over the source of animals and to whom the animals and products can be sold.

Some of those involved expressed the opinion that such impositions act to discourage use of native fauna. For example one submission pointed out, in relation to controls on the harvesting of tree ferns from private land that:

The State presently encourages only exotics and uses regulations as a disincentive to utilise native flora. The landholder risks losing ownership of their product to the state of Victoria if the product is a native. Currently I am free to grow any exotic tree fern on my property without restrictions, but if I plant a native tree fern, I am faced with regulations when I wish to sell it from the DNRE. It is common sense to grow what grows naturally in an area. ²⁵⁵

The Committee understands, however, that the restriction of trade only relates to wild harvest, not to plants that are propagated from a legal source.

Issues

There is a clear difference in the nature of regulatory controls affecting wild harvest to those applying to farmed vertebrate fauna. The need for strict control of fauna farmed in `closed system' operations is, arguably, less than that of fauna farmed in `open systems'.