Victoria has a naturally diverse ecology. The access to this biodiversity is a competitive strength for many native flora and fauna industries. A key issue is the tension between maintaining Australia's access to exotic genetic material while effectively managing access to Australia's biological resources. Should Australia restrict access to its native species, other nations may limit our access to their species.
Australia is a signatory to the Convention of Biological Diversity and is also (since 1993) a signatory to the FAO International Undertaking on Plant Genetic Resources. These oblige Australia to preserve its genetic resources and to make them available to other countries upon their request.
Under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) Australia is obliged to control the export and import of native species. Environment Australia manages Australia's these obligations under the Wildlife Protection (Regulation of Exports and Imports) Act 1982, and is responsible for the issuing of all permits for the import and export of native flora. The Australian Customs Service is then responsible for inspecting consignments to ensure they match the permits.27
The Wildlife Protection (Regulation of Exports and Imports) Act 1982
This Wildlife Protection (Regulation of Exports and Imports) Act 1982 is a Commonwealth Act that addresses conservation issues relating to the import and export of native flora and fauna. The key provisions are Sections 10 and 10A. These provide for the export of artificially propagated plants without control under these Sections. There are two ways in which export permits may be obtained. Individuals may apply for permits on a case-by-case basis. Alternatively, Environment Australia can issue an Authority for businesses in States that have in place a Management Plan for the artificial propagation and commercial wild harvest of native flora.28
Under Sections 10 and 10A, States are required to have legislation in place that enables the regulation, protection and management of species across all tenures. In Victoria. The Flora and Fauna Guarantee Act 1988 and the Wildlife Act 1975 meet this requirement for many species.
Environment Australia
Environment Australia, a federal agency, is responsible for the Wildlife Protection (Regulation of Exports and Imports) Act 1982. In addition it has responsibility, inter alia, for development of federal policy in relation to ESD and application of the Convention of International Trade in Endangered Species (CITES). It also assists in the coordination of State activities in these areas.29 In relation to ESD, objectives are maintenance of ecosystems, numbers of species, genetic integrity and population structures.30 Activities under the Convention of International Trade in Endangered Species relate to most exports of native species and imports of listed species.31 Environment Australia has a research budget that is used for investigating matters associated with monitoring and regulatory supervision.
Management Programs Of Harvested Species
Where a native species is to be harvested for export the exporting State is required to prepare a management program or plan as specified by Section 10 or conform to a `Controlled Specimen Requirement' under section 10A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.32 The former is the more rigorous approach. It is appropriate where proposed export is substantial and there is good knowledge of the distribution, abundance and biology of the species. Currently five States have management programs for the harvest and export of kangaroos. Even though Victoria processes and exports kangaroo products, a Victorian management program is not required because the export products are made from animals harvested outside the State.
Management plans indicate how a species will be managed, something of the species' biology, the harvest regime intended, how many people will be involved, and so forth.
Environment Australia provides guidelines and help to proponents of management programs and `controlled specimen requirements'. Plans are on display for a one-month period for public comment and then assessed by Environment Australia. If the Minister is then satisfied that there is sufficient information on the species and that long-term impacts will be negligible, approval for the Plan (possibly with conditions to ensure sustainability) may be given.
A `controlled specimen declaration' involves the proponent (not necessarily a State government) in a similar process. However, the Minister can issue a Declaration after "taking account of", rather than "being satisfied about the requirements under the regulation".33 Lower standards of knowledge concerning the specimen are accepted.
Plans developed under management programs contain review provisions aimed at ensuring implementation of the plans and continual improvement of management.
Management programs are prepared by the State government. These programs can (and should) function on a regional basis. Not all do so.
In the last approximately two years, ten to eleven management programs have been developed, all for vertebrate animals, and application has been made for more than 100 `Controlled Specimen Requirements'. All current native plant exports from Victoria come under the latter. At present most management programs are for selected kangaroo and wallaby species. Variations between these tend to relate to differences in monitoring methods and are a result of differnces in the habitats in which the species occurs.34
Quota's used in kangaroo management programs are based on the work of Caughley et al.35 Codes of practice for kangaroo harvest are enforceable through the carcass inspection process.
State flora management plans currently exist in Queensland and Western Australia, but actions are being taken by other States, including Victoria, to produce such management plans including Victoria.
Under Section 10A a `Controlled Specimen Requirement' can be developed by anyone, though the State must still have the capacity to monitor the `Requirement' - ie legislation in place to control domestic as well as export use of the species concerned.
The only native species exported from Victoria are soft tree ferns (Dicksonia antartica) and a small quantity of wildflowers. At present this occurs under `controlled specimen declarations'. According to Environment Australia, the former could be dealt with appropriately under a management plan as there is adequate information on the species' distribution, abundance and biology. For the other species presently exported the `controlled specimen declaration' is considered appropriate given the present state of knowledge and size of export.
Export Permits
Under the Wildlife Protection (Regulation of Exports and Imports) Act 1982, where a management program or `controlled specimen declaration' is in force, application can be made for an export licence. A licence must accompany export of any native wildlife. A range of permits are also available. A permit may be issued for one consignment only for unlimited quantity and unlimited number of specimens. An `authority' may be issued for a period of 12 months, within which the exporter effectively writes his/her own licence for each consignment within appropriate restrictions. A new system is being implemented to apply to kangaroo exports. This will use an `authority' but applies to kangaroos only.
Exempt Species
Schedule 4 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 lists species that are exempt from the Act. Since recent review of the Schedule, these include:
nnnnnnnn) species taken for commercial aquaculture where the species in the wild is not generally subject to commercial harvesting;
oooooooo) a plant specimen that: is a registered cultivar of an Australian native species; is a hybrid involving at least one Australian native species where the species do not naturally hybridise (and the product is infertile); or has been given protection under the Plant Breeders Rights Act 1994; and
pppppppp) the plant material is derived from cultivated material.36
Specimens within these categories are not subject to export controls.37
Issues
Export controls are a federal responsibility, however, if Victorian management and regulation of a sector meets Commonwealth standards - and if such management system is registered with the Commonwealth - this would greatly assist Victorian industry obtain export licences.
It is possible for an approved management program to cover an entire State, part of a State or encompass an area straddling a State border. It may also cover one or more species. No Victorian management program has been approved by the Commonwealth to date (no has such approval been sought).
Victorian exporters of native flora raised concerns to the Cut Flower and Nursery Industry Task Force about the long time taken for the issuing of export permits by Environment Australia. The Cut Flower and Nursery Industries Regulatory Reform Task Force identified a number of impediments that need to be addressed in order to expedite the issuing of export permits.
A key issue of concern was that, unlike Western Australia and Queensland, Victoria does not have in place a State Management Plan for the artificial propagation and commercial wild harvest of native plants. Victorian exporters of native flora therefore face a greater regulatory burden in obtaining export permits than their competitors in States that do have a Plan in place. The Task Force recommended that the Department of Natural Resources and Environment develop a State Management Plan as a matter of priority.
The Committee notes that a Management Plan is currently being developed by the Department of Natural Resources and Enviornment for the harvesting of tree ferns, and understands that one for flowers and foliage is proposed.
Quarantine Issues
Federal legislation also deals with issues of disease.38 Under this legislation an AQIS inspector inspects carcasses as they come into the abattoir to ensure that they are fit for human or animal consumption.
Currently no consideration is required to be given to the threat imposed by an exported species on the receiving environment. Informally warnings of potential pest hazard can be given.
Issues
There is some duplication, as noted by the Cut Flower and Nursery Industry Task Force, between the federal quarantine and inspection services.
Import - Export Between Australian States
Section 50 of the Wildlife Act 1975, makes it an offence to import wildlife into Victoria from another State or export wildlife from Victoria to another State without a permit issued by the Secretary - such a permit cannot be withheld if the specimens are lawfully obtained and kept and poses no health or safety risk.
An example of the administrative process that is involved in transferred animals in and out of Victoria is provided in the Case Studies at the end of this chapter.
Issues
The variance of legislation between States and the Commonwealth was considered by Birds Australia to complicate enforcement of regulations designed to protect native flora and fauna.39 This point was also taken up by the Victorian Herpetological Society Inc who considered that all of the current wildlife licensing systems could be more effective if:
Each were to come into line and develop a uniform set of regulations and schedules that do not differ so markedly from one another, as is currently the case.40
There is perhaps scope for reciprocal arrangements to be made between the various States to assist reduce the level of paperwork.
Birds Australia made the point that:
Native flora and fauna (and in particular migratory birds) does not respect the artificial barriers such as national and State borders. Ideally there would be strong and uniform levels of protection for wild birds at all levels of government.41
It is also not clear to the Committee how this sits with the constraint imposed by Section 92 of the Federal Constitution42 that effectively prevents State authorities from controlling interstate movement of fauna or their products.43
INTELLECTUAL PROPERTY RIGHTS
The patenting system and the Plant Breeders Rights (PBR) system are two methods by which this can be achieved, by conferring legal titles in new plant varieties to their breeders or discoverers.44 Patents relate to the development of new technologies, processes, substances and products, and may be applicable to the development of new plant varieties; Plant Breeders Rights is solely associated with the selection and breeding of new varieties of plants, fungi, algae and transgenic plants.45
The Australian Plant Breeders Rights system is administered under the Plant Breeders Rights Act 1994 by the Plant Breeders Rights office within the Commonwealth Department of Agriculture, Fisheries and Forestry.46 The Australian Plant Breeders Rights scheme provides exclusive commercial rights to breeders in Australia for 20 to 25 years, and provides the opportunity for equivalent rights to be filed in foreign countries.47 Breeders may license PBR varieties to growers on condition that a royalty is paid on subsequent plant or seed sales, or they may also undertake the propagation and marketing of the variety themselves, gaining a direct return on plant sales.48 Trademarks, while not protecting the use of a variety, can be used to protect symbols, words or devices used in the marketing of a particular variety.
Several Victorian companies provide overseas growers, under license, with propagules or cuttings of native plants for use as nursery plants or `potted colour'.49 The mature plants are then marketed and sold overseas under an Australian trademark. In other instances, Australia is only involved with the initial selection and breeding of material, which is tested by overseas companies under agreement.50 Product development and marketing is left to the overseas company, who can better assess its profitability for their situations. According to one expert, realistic testing for the world market is beyond the scope of most growers in Australia.51
The stated intention of the original legislation (the Plant Variety Act 1987) was that it would not apply to selections from a natural or wild environment; rather it was a scheme for new plant inventions.52 In 1989, however, Australia joined the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), which allowed varieties to be protected under the Act, irrespective of whether they arose from deliberate cross-breeding, or were selected from wild populations. The Plant Breeder's Rights Act 1994 confirmed this, and wild varieties that were `discovered' and then `bred' to produce a stable line, could qualify for Plant Breeders Rights.
Controversy remains over the interpretation of `breeding' in the Act, and the extent to which the selection and subsequent propagation of wild-selected species conforms to the intent of the Act.
There is also currently considerable debate worldwide over the granting of intellectual property rights in plant material. At the Rio Earth Summit in 1992, two agreements relating to the conservation and utilisation of plant genetic resources were signed. The Convention on Biological Diversity, to which Australia is a signatory, is a legally binding agreement that asserted the sovereign rights of nations over their biological resources, while providing that there be `fair and equitable sharing of benefits arising from utilisation of genetic resources'. Agenda 21 is a non-legally binding document that calls on governments to share the benefits of biodiversity and biotechnology with developing nations, and to develop plans for the in situ and ex situ conservation of biological resources.53
As noted in the previous section on Import-Export issues, Australia is obliged under international agreement to share its genetic resources to other countries upon their request.54 While the Commonwealth Department of Primary Industries and Energy undertakes this reporting for agricultural and food crops, there is no strategy for managing Australia's plant genetic resources.55
The Australian Plant Genetic Resources Advisory Committee established in 1992 developed a policy on Plant Genetic Resources for Food, Agriculture, Horticulture and Forestry which was submitted to the Standing Committee on Agriculture and Resource Management in 1994. No action has resulted to date. 56
In accordance with the Inter-governmental Agreement on the Environment signed in 1992 by the Commonwealth, State and Territories Heads of Government, the Australia and New Zealand Environment and Conservation Council (ANZECC) established a Task Force on Biological Diversity to report on the implications and manner of implementation of the Convention on Biological Diversity. It recommended that a Commonwealth State and Territory Working Group be established to investigate and report on the strengthening of existing controls governing access to genetic resources, including legislation.
Matters which the ANZECC report identified as possible requiring legislation include:
the regulation of access to, collection of and export of genetic resources, particularly those of commercial benefit. The report suggests that requirements of `mutually agreed terms' and `prior informed consent' provide a legal basis on which a fee generating permit system could be constructed.57
Prior to the Earth Summit, undeveloped genetic resources had been freely available to all without restriction based on a...
...widely held view in the developed world,... that all undeveloped genetic resources, including wild species,... are public goods, and should be freely available to all without restriction. Inbred lines, new cultivars, and other forms protected by patents or plant breeders' rights should not be freely available to ensure that those who invest in their development receive a fair return.
Various non-government organisations, particularly the Rural Advancement Foundation International (RAFI), were concerned, however, that developed countries were `pirating' agricultural crops developed by indigenous people worldwide. They argued that indigenous people have de facto intellectual property rights, through traditional usage and cultivation, in many of the plants now protected under PBR by developed countries58. In Australia, however, the vast majority of PBR applications are for ornamental plants, rather than agricultural species. The Committee notes that while it could be argued that de facto intellectual property rights exist where the intended use of a plant under PBR is the same as its traditional use, for example for food, the principles are unclear where the intended use of the plant under PBR is different from its traditional use. For example, where a native plant not traditionally used for decorative purposes is developed for ornamental use.
The Convention on Biological Diversity, by providing an opportunity for countries to gain greater control over their genetic resources, has thus created a radical change:
Many countries no longer regard genetic resources as the common heritage of mankind. Genetic resources, like other national resources such as oil and minerals, are widely regarded as national assets which, if they are valuable and therefore worth conserving, should be exploited for profit.
Jurisdiction over Australia's indigenous biological resources is vested in both the State and Territory Governments, and the Commonwealth Government. The State and Territory Governments regulate the collection of and use of flora and fauna occurring on both public and private land under their governance; the Federal Government regulates the export of native flora and fauna. Commonwealth legislation relating to access to Australia's biological resources does not yet exist.59 In 1994 a Commonwealth and State Government Working Group was established in recognition of the need for a national approach to policy and legislation in relation to this issue.
It is unclear how PBR legislation will fit into the principles established by the Convention of Biological Diversity.
Issues
These are all issues that are still to be pursued and resolved at, primarily a Commonwealth level.
