The Committee has included three examples of the application of the current legislative controls. The first demonstrates the apparent complexity of the controls to the uninitiated. The second case study indicates the frustration that may be caused by the variability of administrative discretion and perceived duplication involved in the application of the controls. The third case study is illustrative of the administrative processes involved to transport animals across State borders. Such issues may be compounded by imprecise definitions of key words in the legislation - some of these are also highlighted.
The Breeding of Emus in Captivity and Selling their Live Eggs
The specific uses to which a particular species of native wildlife can be legally put in Victoria are determined by two criteria namely:
qqqqqqqq) the particular type or category of wildlife licence; and
rrrrrrrr) whether or not that species is included in the list of wildlife contained in the Wildlife Regulations 1992 that can be legally utilised in a particular way in Victoria.
In relation to criterion (a) above, the various categories of Victorian wildlife licences are set out in the Wildlife Regulations 1992. Basically they are divided up initially into Private and Commercial Wildlife Licences; then, within those two groups they are given specific titles according to the form of usage or occupation (for example, the Commercial Wildlife (Wildlife Producer) Licence); some categories of licence are further divided into numbered types (for example, the Commercial Wildlife (Wildlife Producer) Licence is further divided into Types 1, 2 & 3).
In relation to criterion (b) above, the list of wildlife (by common and scientific name) that can be legally utilised in Victoria is set out in the seven Schedules of the Wildlife Regulations 1992.
Unfortunately, when describing these various categories of wildlife licence in the main text of these Wildlife Regulations, reference is not usually made to the actual names of the wildlife that can be used commercially or privately by the holder of the particular licence. Instead reference is just made to a particular Schedule or Schedules of those Regulations. As stated above, the Schedules list the common and scientific name of each species that can be legally utilised in Victoria. This makes it difficult and indirect for the reader or inquirer to work out if he or she can use a specific species of wildlife for a particular purpose.
As stated previously, the inquirer in our hypothetical example wishes to use the Wildlife Regulations to find out if he/she is legally permitted to operate a large scale business premises that breeds emus in captivity and then sells the eggs from those birds. At
present one way he/she could answer his/her query would be to follow the three steps listed below:
ssssssss) look in the Schedules of these Wildlife Regulations to see under what Schedule number or numbers emus are listed (at present emus are listed in Schedules 5 (Part B), 6 and 7);
tttttttt) then look in the main text of the Regulations under the various categories of private and commercial wildlife licences (the `private' licences are set out in regulations 24 to 28 and the commercial ones in regulations 29 to 35 of the Wildlife Regulations] to see if those particular Schedule numbers set out in point (1) above were mentioned. A quick examination of those regulations shows that one or more of these Schedule numbers are mentioned in regulation 25(1) of the Wildlife Regulations, which covers a Private Wildlife (Category Two) Licence; regulation 26(1) which covers a Private Wildlife (Category Three) Licence; regulation 30(2)(e), which covers Commercial Wildlife (Wildlife Controller) Licence Types 1 and 2; regulation 31(1) which covers Commercial Wildlife (Wildlife Dealer) Licence Type 2; regulation 34(2)(b) & (2A) which covers Commercial Wildlife (Wildlife Producers) Licence Types 2 & 3;
uuuuuuuu) see which of those licences would allow both the breeding of emus in captivity and the selling of their eggs. A check of the conditions of those above listed licences shows that the holder of a Private Wildlife (Category Two) or (Category Three) Licence, or of a Commercial Wildlife (Wildlife Producers) Licence Type 2 or 3 can breed from emus (i.e. Schedule 7 wildlife) and sell them. However none of the explanations in the Wildlife Regulations 1992 (Vic) of the conditions of these licences expressly state that the holder can sell "fertile" emu eggs, though the holder of a Commercial Wildlife (Wildlife Producers) Licence Type 3 can dispose of "infertile" emu eggs to any person60 and can also sell emu eggs generally61 without the need for any special authorisation from the Secretary of the Department of Natural Resources and Environment. It is also worth noting that the holders of the above Private licences cannot either (a) have more than 10 emus of above 4 weeks age in their possession or (b) operate from a business premises or a shop.
It therefore seems from steps (1) to (3) above, that the most likely option for our hypothetical inquirer is to apply for a Commercial Wildlife (Wildlife Producers) Licence Type 3. There are other approaches which could answer this hypothetical query regarding the breeding of emus and the selling of their eggs, but they are equally indirect and complex. 62
The Wild Harvesting of Tree Ferns
The harvesting of tree ferns from public land in Victoria is prohibited.63 In 1998, 50,000 tree ferns were harvested from private land in Victoria, and a large number of additional specimens were imported from Tasmania. Tree ferns are harvested from private land under a permit system regulated by the Department of Natural Resources and Environment. All tree ferns sold in Victoria, including those from Tasmania, must be tagged. In some cases a planning permit from the local government authority is also required for harvest. Tree ferns that are exported also require a permit from Environment Australia.
The Committee was informed, by tree fern operators in the Otways region of Victoria, that current Departmental policy is frustrating their efforts to establish a viable and ecologically sustainable business that would bring revenue into their local community.64 The business is based on harvested tree ferns sold in domestic and export markets. These operators also harvest ferns as part of the establishment process for a self-sustaining tree fern plantation.
The Committee was informed that the system for the issuing of permits to harvest tree ferns from private land was ad hoc, inefficient and inconsistent.65 Various legislation and regulations administered by the State government, local government and catchment management authorities apply to the harvesting of tree ferns in Victoria. These include the Revised Forest Code of Practice, the Flora and Fauna Guarantee Act 1988, native vegetation retention controls, Planning and Environment Act 1987, and the Catchment and Land Protection Act 1994.66
The Committee was advised that delays in the issuing of permits affects the viability of small businesses, and makes business planning difficult.
The Committee was also informed that, while the utilisation of tree ferns is heavily regulated on private land, thousands of tree ferns are bulldozed then burnt during tree clear-felling operations in State forests.67 Tree fern operators, rather than see a valuable resource `wasted', would like to harvest tree ferns before logging operations commence.
Transportation of Native Animals Across State Borders
The following example of the correspondence, permit applications and the permits involved in the transport of captive native animals across a State border is of a person wishing to give a single talk on snakes.68 It involved a short visit across the border from South Australia (where the person lived), to Apsley in Victoria for a few hours to give a talk to the Apsley Lions club. In addition to undertaking the process outlined below, the person had to pay fees of $120 ($100 for a wildlife demonstrators permit and an additional $20 for an assistants permit).
An outline of the process undertaken is indicated below:
15/10/95 |
Application for a Commercial Wildlife Licence Application. |
16/10/95 |
Application for DNRE Import permit to take snakes to Victoria. |
16/10/95 |
Application for export permit from DNRE. |
16/10/95 |
Application to DNRE to Import snakes back from Victoria. |
16/10/95 |
Application for DNRE Export permit to return snakes to South Australia. |
20/10/95 |
Application for Assistant's Licence. |
23/10/95 |
Letter to DNRE advising talk time and place and re wildlife demonstrators licence. |
26/10/95 |
Letter from DNRE advising they will have to interview me and inspect our premises before granting demonstrators permit. |
6/11/95 |
DNRE export permit to return snakes to South Australia. |
6/11/95 |
Letter to DCNE requesting acceptance of DNRE rather than submit to inspection in South Australia by DNRE officers |
7/11/95 |
Commercial Wildlife (Wildlife Demonstrators) Licence. |
8/11/95 |
Letter from DNRE confirming my bone fide and conditions under which snakes can be transferred to and from Victoria and South Australia. |
10/11/95 |
DNRE Import Permit. |
17/11/95 |
Final notice for payment of Assistants Licence for helper. |
23/11/95 |
Letter to DNRE re notice sent re payment of Wildlife Demonstrators Assistance Licence. |
23/12/95 |
Letter to DNRE re necessity to lodge returns when already do it in South Australia. |
Undated |
Letter from DNRE advising issue of Commercial Wildlife (Wildlife Demonstrators) Licence. |
Confusing Legislative Provisions
Issues associated with the lack of precision in current legislation compound difficulties faced by potential utilisation industries - a number of key expressions used are not defined. For example:
vvvvvvvv) the Flora and Fauna Guarantee Act 1988 does not define `controlling', `move' or `process' (section 3(1)), but all of those terms are essential to an understanding of permissible or prohibited behaviour regarding protected flora in the Flora and Fauna Guarantee Act 1988 (under section 48);
wwwwwwww) section 3(1) of the Wildlife Act 1975 does not define `keep', `control', `destroy', `process', `take', `acquire', `breed', `display' or `dispose of', but the meaning of all these terms are crucial to informing the holder of wildlife licence as to what behaviour he or she is legally permitted to perform;
xxxxxxxx) the terms `controlled', `endangered', `notable' and `protected' wildlife are ill defined by the Wildlife Act 1975 - sections 3(1) & 47B; and
yyyyyyyy) the Wildlife Act 1975 and the Flora and Fauna Guarantee Act 1988 do not, with the exception of terms like `hunt', `breed', `trade', `buy' and `sell', use any of the specific terms of commercial utilisation such as `farming', `harvesting', and `ranching'.
In addition different statutes may define the same word differently. For example, there is a variation between the Flora and Fauna Guarantee Act 1988 (section 3(1)) and the Wildlife Regulations 1992 (regulation 5),69 as regards the meaning of the term `take'.
The inclusion of non-indigenous species in some of the definitions or categorisations of wildlife,70 also makes the interpretation of certain Acts or provisions, from the perspective of native flora and fauna utilisation, difficult.
1 Bryant, T. L., and Akers, K. R. (1998), Victorian Legislation on the Utilisation of Native Flora and Fauna, Report to the Victorian Parliamentary Committee on Natural Resources and the Environment, unpublished.
2 Birds Australia, Written Submissions, No. U30.
3 TRAFFIC Oceania, Written Submissions, No. U42.
4 The purposes or objectives of a particular piece of legislation are usually stated in section 1 of the Act, or rule 1 of a set of Regulations.
5 Plant Health and Plant Products Act 1995, s. 1.
6 Prevention of Cruelty to Animals Act 1986, s. 1.
10 The long title to the Forests Act 1958.
11 See Fisheries Act 1995, s. 28.
12 National Parks Act 1975 s. 17B.
13 Priority species means abalone, rock lobster or any other species that the regulations class as that species - Fisheries Act 1995, s. 4(1).
15 Flora and Fauna Guarantee Act 1988, s. 20.
16 Parts of reserved forests can be zoned separately to protect their beauty - Forests Act 1958, s. 42(6).
17 Wilderness Parks are designated in order to protect indigenous flora and fauna, etc. - s. 17A(2).
18 Section. 88 relates to declaration of waters which are critical habitats, required for hatching or spawning, etc. as "fishery reserves".
19 It is an offence to hunt wildlife in a wildlife sanctuary without written authority of the Secretary - Wildlife Act 1975 s. 35(2).
20 Prevention of Cruelty to Animals Act 1986, s. 14 - penalties for breaches of this provision are 120 units or 12 months imprisonment.
21 For example the Wildlife Act 1975, s. 78.
26 Flora and Fauna Guarantee Act 1988, s. 53.
28 For example - Flora and Fauna Guarantee Act 1988, s. 53.
29 The Flora and Fauna Guarantee Act 1988, as a principal and empowering Act, contains a lot of the important detailed information as compared to its subordinate legislation, the Flora and Fauna Guarantee Regulations 1990. For example Schedule 2 of the 1988 Act contains a list of the names of endangered species, whilst other provisions in the Act list eligibility criteria for permits to take such species, as well as some of the key criteria for listing species as "threatened". However even with this particular example, the subordinate legislation still contains some important details. For example the Flora and Fauna Guarantee Regulations 1990 has a complete detailed description of all the criteria regarding eligibility for being listed as a threatened species, whereas the 1988 Act only has some of these criteria.
30 Wildlife Act 1975, s. 22(3)(a) & (b).
31 Wildlife Act 1975, s. 87(1)(c).
32 For example section 38(1) of the Fisheries Act 1995 empowers persons to make regulations which set out the various categories of "access" licences for commercial fishing, whilst the Fisheries Regulations 1998 lists the different classes of access licence for commercial fishing [rr. 210-203], the entitlements of holders of those various licences [rr. 204-231], any conditions that are attached to the licences [rr. 301-337] and administrative matters in relation to them [rr. 232-237].
33 Conservation, Forests and Lands Act 1987, s. 31.
34 Prevention of Cruelty to Animals Act 1986, s. 7.
35 Regulations may also be made under the Forests Act 1958 (s. 99(20)) to provide for the protection of trees in Crown lands reserved under the Crown Land (Reserves) Act 1978. Provisions relating to other Crown land are included in the Land Act 1958 (principally providing for grazing) and the National Parks Act 1975 (but its provisions and associated regulations effectively preclude the use of native plants other than for certain limited defined exceptions).
36 Notwithstanding any entitlements that may otherwise be given by the holder of a licence under the Fisheries Act 1995.
37 Flora and Fauna Guarantee Act 1988, s. 19.
38 There are currently (as at July 1999) 269 listed species (141 plants and 128 animals) and only 84 approved action statements (covering 34 plants and 53 animals).
39 Flora and Fauna Guarantee Act 1988, s. 49.
40 Catchment and Land Protection Act 1994, s. 58, s. 59 (1).
41 Department of Natural Resources and Environment, Written Submissions, No. U67.
42 Flora and Fauna Guarantee Act 1988, s. 47.
43 Flora and Fauna Guarantee Act 1988, s. 47 (2)(d).
44 Department of Natural Resources and Environment, Written Submissions, No. U67.
45 The listing of such species is a legacy of the now repealed Wild Flowers and Native Plants Protection Act 1958.
46 Flora and Fauna Guarantee Act 1988, s. 3.
47 Flora and Fauna Guarantee Act 1988, s. 49.
51 Catchment and Land Protection Act 1994, s. 58(4).
52 Catchment and Land Protection Act 1994, s. 58, s. 59 (1).
53 Catchment and Land Protection Act 1994, s. 71.
54 Catchment and Land Protection Act 1994, s. 70.
56 Wildlife Act 1975, s. 7A(1).
57 Victoria Government Gazette, No 84, 1 August 1984.
58 Victoria Government Gazette, G26, 4 July 1996, p. 1704.
59 Victoria Government Gazette, G27, 10 July 1997, p. 1718.
60 Wildlife Regulations 1992, r. 30(2)(e)(ii).
61 Catchment and Land Protection Act 1994, s. 75(5).
62 Fisheries Regulations 1998, s. 201(1)(e) and (f).
64 Fisheries Act 1995, s. 71; Or has a permit under the Flora and Fauna Guarantee Act 1988.
65 Fisheries Act 1995, s. 72(3)(a)(i).
66 Maroondah City Council, Written Submissions, No. U2.
67 Maroondah City Council, Written Submissions, No. U2.
68 That is the plant is obtained under licence or permit from the wild or from some one who has obtained the plant from the wild under licence or permit.
69 Wildlife Act 1975, s. 78(1)(g).
70 Wildlife Regulations 1992, r. 24.
71 Wildlife Regulations 1992, r. 25.
72 Wildlife Regulations 1992, r. 26.
73 Wildlife Regulations 1992, r. 27.
74 Wildlife Regulations 1992, r. 28.
75 To keep venomous snakes, the licensee must be over 18 years in age or be able to demonstrate competency in handling such snakes.
76 Wildlife Regulations 1992, r. 21.
77 Other for species for which a licence is not required to keep a live specimen - that is any species on Schedule 4 of the Wildlife Regulations 1992.
78 Department of Natural Resources and Environment, Written Submissions, No. U67.
79 Preece, K., Department of Natural Resources and Environment, Minutes of Evidence, Melbourne 26 April 1999; and also
Department of Natural Resources, Written Submissions, No. U67.
80 Preece, K., Department of Natural Resources and Environment, Minutes of Evidence, Melbourne 26 April 1999; and also
Department of Natural Resources, Written Submissions, No. U67.
81 Flora and Fauna Guarantee Act 1988, s. 48.
82 Penalty of 50 units for a breach of the Plant Health and Plant Products Act 1995, s. 8.
83 "Plant" means any member of the vegetable kingdom and includes any tree, vegetable, vine and edible fungi - Plant Health and Plant Products Act 1995, s. 3(1).
84 Under the Wildlife Act 1975, s. 28A(1)(b) & (d).
85 Wildlife Act 1975, s. 29(i).
86 Under the Wildlife Act 1975, s. 29.
87 Wildlife Act 1975, s. 78(1)(c),(d) and (f).
88 Fisheries Act 1995, s. 49(2).
89 Fisheries Act 1995, s. 88(1) & (2)(b)(vi).
90 Information provide by Jane Dyke, Environmental Research Coordinator, Flora and Fauna, Department of Natural Resources and Environment, 17.6.1999.
92 Land Act 1958, s. 130 (5A).
94 Forests Act 1958, s. 21(a).
95 See sections 42 -which creates an offence to operate an aquaculture business without authorisation and 43 -grounds for granting the aquaculture licence.
97 Fisheries Act 1995, s. 88(1) & (2)(b)(iii).
98 Fisheries Act 1995, ss 113(1) & 115 [penalty of 50 units or three months imprisonment or both]
99 Fisheries Act 1998, r. 335.
100 The penalty for a breach of s. 36(1) in relation to priority species is 200 penalty units or 12 months imprisonment or both and 100 units or six months imprisonment or both in any other case.
101 Wildlife Regulations 1992, r. 604.
102 Fisheries Act 1995, s. 40(1).
103 Wildlife Regulations 1992, r. 34(2A)(a).
104 See Wildlife Regulations 1992, r. 34(3) to (5) [conditions attached to Type 1]; r. 34(6) [conditions for Type 2] and r. 34(7) [conditions for Type 3].
105 Wildlife Regulations 1992,. r. 16A
106 Wildlife Regulations 1992, r. 34(2) - the holder of a Commercial Wildlife (Wildlife Producer) Licence Type 2 can possess, keep, buy, process, sell and dispose of dead emus.
107 Department of Natural Resources and Environment, Written Submissions, No, U67.
108 Wildlife Regulations 1992, rr. 25(2)(f); 26(2)(f).
109 Wildlife Regulations 1992, r. 34(2).
110 Wildlife Regulations 1992, r. 16B(1)(b) & (7).
111 Wildlife Regulations 1992, r. 16D.
112 Wildlife Act 1975, s. 58C(1) [10 penalty units for a breach of this section]
113 The authorisation may be subject to conditions or restrictions set by the Secretary or regulation - Wildlife Act 1975 s. 28A(2) & (3). The person seeking the authorisation must apply in the prescribed manner, provide the required information and pay the prescribed fee for the authorisation - Wildlife Act 1975 s. 28A(4). The authorisation has a maximum duration of three years but it can be renewed - Wildlife Act 1975 s. 28C.
114 These conditions are: (1) because the wildlife is damaging buildings, vineyards, orchards, crops, pastures, habitat or other property owned by the person seeking the authorisation or property adjacent to that person's own property or (2) for the management, conservation, protection or control of wildlife or (3) for aboriginal cultural purposes or (4) for education or research purposes or (5) for the care, treatment or rehabilitation of sick, injured or orphaned wildlife or (6) for the custody, care or management of wildlife including the supporting of a recognised wildlife management program or (7) for the purpose of ensuring the health and safety of persons.
115 Wildlife Act 1975, s. 47C.
116 Further more, wild-shot game is not permitted on commercial premises where food is cooked, without permission of the Secretary, under Wildlife Regulations 1992, r. 29.
117 As listed in Schedule 6 of the Wildlife Regulations 1992.
118 Wildlife Act 1975, s. 28A.
119 Also granted for wood duck on dams, and on occasion other species.
120 Wildlife Regulations 1992, r. 31(1) & (2).
121 Wildlife Regulations 1992, r. 31(3)(a), (d), (ha) & (hb).
122 Under the Wildlife Act 1975, s. 28A(1)(b).
123 Listed in the Wildlife Act 1975, s. 28A(1)(c) to (i).
124 Wildlife Act 1975, s. 50(1) & (1A).
125 These conditions are that the wildlife was lawfully obtained, was lawfully kept and can be lawfully moved or imported from another State or Territory; does not breach any Victoria or other State or Territory law in the process of exporting or importing; the exporting or importing does not pose a risk, prejudice or adversely affect any person, livestock, the conservation of any protected wildlife, the wildlife of the jurisdiction to which the wildlife is being exported; any persons involved in the export or import process must not, at the time of the application for the import/export permit, have had any licence, permit or authority under the Wildlife Act 1975 suspended, cancelled or disqualified under s. 70 of that Act - Wildlife Act 1975 (Vic) s. 50(2). Also the applicant must apply for this permit in the prescribed manner, pay the prescribed fee and the issued permit is subject to any conditions, restrictions or limitations set by the Secretary - Wildlife Act 1975 (Vic) s. 50(3) - (5).
126 Flora and Fauna Guarantee Act 1988, s. 53.
129 A recreational fishery licence is not required where (a) persons under 18 take fish for any other purpose than for sale or (b) a person takes a fish, other than a rock lobster, from marine waters for reasons other than for sale and the Minister has not published a notice under s. 48(1) - Fisheries Act 1995, s. 47
130 Fisheries Regulations 1998, r. 401.
131 Fisheries Regulations 1998, Schedule 10.
132 Department of Natural Resources and Environment (1999), New Recreational Fishing Regulations Introduced July 1999, brochure.
133 Fisheries Act 1995, s. 46.
134 Prevention of Cruelty to Animals Act 1986, s. 26(1).
135 Prevention of Cruelty to Animals Act 1986, s. 29.
136 Fisheries Act 1995, s. 49(2).
137 Fisheries Act 1995, ss 52, 54-55.
138 Kearney, M., Written Submissions, No. U35.
139 Kearney, M., Written Submissions, No. U35.
140 Kearney, M., Written Submissions, No. U35.
141 Wildlife Act 1975, s. 28A(1).
143 Wildlife Regulations 1992, r. 35(1).
144 Wildlife Regulations 1992, r. 35(2).
147 Wildlife Act 1975, s. 74A.
148 Wildlife Act 1975, s. 74D.
149 Section 72 of the Wildlife Act 1975 was repealed in 1990, yet s. 74(4) of that Act, which deals with zoo licensees keeping and exhibiting wildlife, still refers to prohibition from penalties under s. 72.
150 Wildlife Regulations 1992, r. 33(1)(a).
151 Wildlife Regulations 1992, r. 33(1)(a)(ii).
152 Wildlife Regulations 1992, r. 33(3)(f).
153 Wildlife Regulations 1992, r. 33(3)(g).
154 Wildlife Regulations 1992, r. 32(1)(c)& (d), (2)(f) & (g).
155 Wildlife Regulations 1992, r. 32(2)(f) to (h).
156 Wildlife Regulations 1992, r. 32(2)(b).
157 Flora and Fauna Guarantee Act 1988, s. 17(2)(a).
158 Flora and Fauna Guarantee Act 1988, s. 1(a).
159 Flora and Fauna Guarantee Act 1988, s. 5(1).
160 Flora and Fauna Guarantee Regulations 1990, Schedule 1 Item 6.
161 These criteria are defined under the Flora and Fauna Guarantee Regulations 1990 Schedule 1 Item 7 - and currently are: it is in a demonstrable state of decline that is likely to result in extinction; it is significantly prone to future threats likely to result in extinction; it is in a demonstrable state of decline which is likely to result in a significant loss of its component taxa; it has decreased markedly in a short time as regards its distribution and that decrease is continuing; it has altered markedly in a short time within its composition and that alteration is continuing; it is very rare in terms of the total area it covers or it has a very restricted distribution or it has been recorded in only a few localities; it as regards its threat, this is currently operating and is expected to operate at a level in the future which is likely to result in its extinction.
162 The Conservation Advisory Committee established under the Conservation, Forests and Lands Act 1987 and the Victorian Catchment and Land Protection Council established under the Catchment and Land Protection Act 1994.
163 Flora and Fauna Guarantee Act 1988, s. 47 and 48(5), unless the Director-General is of the opinion that the flora is a series cause of injury to property, crops or listed taxa or communities of flora or fauna.
164 Flora and Fauna Guarantee Act 1988, s. 52
165 As noted previously, there are currently (as at July 1999) 269 listed species (141 plants and 128 animals) and only 84 approved action statements (covering 34 plants and 53 animals).
166 The Rufous Bettong, Tasmanian Bettong, Red Tailed Black Cockatoo, Superb Parrot, Tasmanian Pademelon, Swift Parrot, Hooded Scaly-foot and Major Mitchell Cockatoo.
167 Note, however, that the numbers in captivity may not reflect the conservation status of the species in the wild. For instance, the Princess Parrot is an endangered species (ie rare in the wild), but common in aviculture.
169 Prevention of Cruelty to Animals Act 1986, s. 7(1).
170 These sources include any matter in any document, code, standard, rule, specification, etc. - Prevention of Cruelty to Animals Act 1986, s. 7(2).
171 Referred to in the Forests Act 1958, s. 52B(2)(f). An example is the Code of Forest Practices for Timber Production.
172 Kearney, M., Written Submissions, No. U35.
174 The Wildlife Act 1975 also encompasses a number of non-indigenous species - declared deer, quali, pheasants and partridges, and invertebrates listed as `threatened' under the Flora and Fauna Guarantee Act 1988.
175 Wildlife Act 1975, s. 3; the criteria are defined in the Catchment and Land Protection Act 1994, s 67 - (a) it is established in the wild in Victoria; and (b) it is a serious threat to primary production, Crown land, the environment or community health in Victoria; and it should be eradicated or controlled or its spread in the wild should be prevented.
177 Wildlife Act 1975 s. 7A(1) - if the particular wildlife is causing injury or damage to (1) any building, vineyard, orchard, garden or other property; (2) any crop, grass, trees or other vegetation or (3) any other taxon or kind of animal including fish.
179 Catchment and Land Protection Act 1994, s 67.
180 Catchment and Land Protection Act 1994, s 73.
181 Victoria Government Gazette, No. 6, 19 January 1983.
183 Wildlife Act 1975, s. 23(1)(c).
184 Wildlife Act 1975, s. 22A.
186 Wildlife Act 1975, s. 22A(5)(c).
187 The Wildlife Possession, Trade and Advisory Committee has adopted five criteria to assist it with its assessment of applications. These are conservation status, pest potential, human health and safety, husbandry (including breeding), and the number in captivity.
189 Wildlife Act 1975, s. 28A(1).
190 Wildlife Regulations 1992, r 12(2).
191 Wildlife Regulations 1992, r. 31(3).
192 Wildlife Act 1975, s. 75 - 85A.
195 Wildlife Act 1975, s. 78(3A).
198 Fisheries Act 1995, s. 52.
199 The Governor is Council may set these quotas upon recommendation of the Minister - Fisheries Act 1995 (Vic) s. 64(1). There is also provision for the Secretary to set individual quotas for access licences - s. 65 of the same Act.
200 Fisheries Act 1995, s. 67.
201 Fisheries Act 1995, s. 68A; minimum sizes for various species of fish are set out in the Fisheries Regulations 1998 r. 501.
202 Fisheries Regulations 1998, r. 501.
203 Fisheries Regulations 1998, rr. 503-504.
204 Fisheries Regulations 1998, r. 302(2)(a)-(d).
205 Fisheries Regulations 1998, r. 506.
206 For example the trammel net is prohibited under the Fisheries Regulations 1998 (Vic) rr. 508(1)(a) and 509
207 Fisheries Regulations 1998, rr 204-226.
208 Fisheries Act 1995, s. 69(1). Under section 69(2) of the Fisheries Act 1995 such a declaration cannot be made in respect of protected wildlife under the Wildlife Act 1975 or protected flora under the Flora and Fauna Guarantee Act 1988
209 Fisheries Act 1995, s 71(1) [50 penalty units for a breach]. Persons with a protected aquatic biota permit or a permit under the Flora and Fauna Guarantee Act 1988 to take such biota are allowed to take, trade in or keep such biota - ss. 71(2) & 72(1)
210 For example, regulation 512 of the Fisheries Regulations 1998 makes it an offence to take marine invertebrates in Port Phillip Bay.
211 Fisheries Act 1995, s. 4(1).
212 Such as abalone and rock lobster.
213 Fisheries Regulations 1998, r. 302(2)(f).
214 Flora and Fauna Guarantee Act 1988, s. 46.
215 Flora and Fauna Guarantee Act 1988, s. 47.
216 Flora and Fauna Guarantee Act 1988, s. 47.
217 Flora and Fauna Guarantee Act 1988, s. 48(4).
218 Flora and Fauna Guarantee Act 1988, s. 48(5).
219 Flora and Fauna Guarantee Act 1988, s. 55(1).
220 Flora and Fauna Guarantee Act 1988, s. 66(1).
221 Prevention of Cruelty to Animals Act 1986, ss 9 & 10 - penalties for a breach of s. 9 are 60 units or 6 months imprisonment and breaches of s. 10 [aggravated offences] incur penalties that are twice those amounts.
222 In the Prevention of Cruelty to Animals Act 1986, s. 3(1) an "animal" is defined as a live member of a vertebrate species including any fish, amphibian, reptile, bird, live crustacean or non-human mammal.
223 Prevention of Cruelty to Animals Act 1986, s. 9.
224 Prevention of Cruelty to Animals Act 1986, s. 9(a).
225 Prevention of Cruelty to Animals Act 1986, s. 9(b).
226 Prevention of Cruelty to Animals Act 1986, s. 9(d).
227 Prevention of Cruelty to Animals Act 1986, s. 9(h).
228 Prevention of Cruelty to Animals Act 1986, part 3.
229 Prevention of Cruelty to Animals Act 1986, c. 7(1)(a)
230 Prevention of Cruelty to Animals Act 1986, c. 6(1)(a)
231 Prevention of Cruelty to Animals Act 1986, c. 6(1)(d)
232 Prevention of Cruelty to Animals Act 1986, c. 6(1)(d)
233 Prevention of Cruelty to Animals Act 1986, c. 6(1)(g)
234 Prevention of Cruelty to Animals Act 1986, c. 6(1)(h)
235 Wildlife Act 1975, s. 76(4)(c)(iii).
236 Wildlife Regulations 1992, r. 34(7)(j).
237 Wildlife Regulations 1992, rr. 10(1) and (2) and 11 (1).
238 Wildlife Regulations 1992, r. 13.
241 Conservation, Forests and Lands Act 1987, s. 4.
242 Fisheries Regulations 1998, r. 101.
243 Fisheries Act 1995, s. 29(1).
244 Forests Act 1958, ss. 52A, 52D, 52E.
245 Fisheries Act 1995, s. 21(2)(a). This provision, however, only relates to marine fisheries.
246 Wildlife Regulations 1992, r. 9 [50 unit penalty for breaches of r. 9]
248 Flora and Fauna Guarantee Act 1988, s. 20.
249 Flora and Fauna Guarantee Act 1988, s. 26(1)(a). Interim orders have a two year duration - Flora and Fauna Guarantee Act 1988, s. 32.
250 Flora and Fauna Guarantee Act 1988, s. 27(b) & (c).
251 Flora and Fauna Guarantee Act 1988, s. 36 - failure to comply with any notice of prohibition or compliance with result in an initial 100 unit fine and further 10 unit per day penalties.
252 Flora and Fauna Guarantee Act 1988, s. 39.
253 Flora and Fauna Guarantee Act 1988, s. 40.
254 Flora and Fauna Guarantee Act 1988, s. 26(c).
255 Vulcz, R. and L. , Written Submissions, No. U50.
0 Fisheries Act 1995, ss. 21(1)(b) & (2)(b).
1 Fisheries Act 1995, s. 28(6)(f) & (g).
2 Flora and Fauna Guarantee Act 1988, s. 17(3).
3 Flora and Fauna Guarantee Act 1988, s. 19(3)(b).
4 Flora and Fauna Guarantee Act 1988, s. 23(1)(c) & (2)(a).
5 Flora and Fauna Guarantee Act 1988, ss 36 & 40.
6 Conservation, Forests and Lands Act 1987, s. 4.
7 Section 50 of the Flora and Fauna Guarantee Act 1988, provides for the Director-General to determine royalties for the taking of wild flora - but none have been so determined.
8 Wildlife Regulations 1992, r. 38.
9 Wildlife Regulations 1992, r. 29.
11 Wildlife Regulations 1992, r. 30(2)(e)(iii).
12 Wildlife Regulations 1992, r. 32(2)(g) & (h).
13 Wildlife Act 1975, s. 76(4)(d).
14 Wildlife Regulations 1992, r. 30.
15 See Wildlife Regulations 1992, r. 30(2).
16 Wildlife Regulations 1992, r. 30(1A).
17 Wildlife Regulations 1992, r. 30(3).
18 Temby, I. (1998), Problems Caused by Kangaroos and Wallabies, Flora and Fauna Notes Series No. FF0104; also GSES Report on Wombats.
19 Temby, I. (1998), Flora and Fauna Program, Department and Natural Resources and Environment, personal Communication, 26 October; and also
Department of Natural Resources and Environment (1997), Victoria's Biodiversity, Directions in Management, p 34.
20 There are eight such controllers licensed under the Wildlife Act 1975.
21 Temby, I. (1998), Flora and Fauna Program, Department of Natural Resources and Environment, personnal communication, 26 October 1998.
22 Wildlife Regulations 1992, r. 30(2)(e)(ii).
23 Maroondah City Council, Written Submissions, No. U2.
24 Wildlife Act 1975, s. 28A(1)(a), (b) & (e).
26 Vulcz, R. and L., Written Submissions, No. U50.
27 Cut Flower and Nursery Industries Regulatory Reform Task Force (1999), Review of Regulatory Arrangements in the Victorian Cut Flower and Nursery Industries. Final Report Office of Regulation Reform, State Government of Victoria.
28 Cut Flower and Nursery Industries Regulatory Reform Task Force (1999), Review of Regulatory Arrangements in the Victorian Cut Flower and Nursery Industries. Final Report Office of Regulation Reform, State Government of Victoria.
29 Kay, D. (1999), Head of Wildlife Branch, Environment Australia, personal communication, 10.May 1999.
34 Bigwood, A. (1999), Environment Australia, Minutes of Evidence, 10.May 1999.
35 Caughley, G., Shepherd, N. and Short. J. ed, (1987), Kangaroos, their Ecology and Management in the Sheep Rangelands of Australia, Cambridge University Press, London, Melbourne.
36 Environment Australia (1999), The Monitor Autumn 1999, Environment Australia, Canberra, Australia. p. 1.
37 Access to Australia's Biological Resources Discussion Paper (draft).
38 Mobbs, C. (1999), Environment Australia, Minutes of Evidence, 10.5.1999.
39 Birds Australia, Written Submissions, No. U30.
40 Victorian Herpetological Society Inc, Written Submissions, No. U40.
41 Birds Australia, Written Submissions, No. U30.
42 Commonwealth of Australia Constitution Act 1900 (UK).
43 Caughley, G., Shepherd, N. and Short. J. ed, (1987), Kangaroos, their Ecology and Management in the Sheep Rangelands of Australia, Cambridge University Press, London, Melbourne., p. 210.
44 Godden, D (1998), `Growing Plants, Evolving Rights: Plant Variety Rights in Australia', Australian Agribusiness Review, Vol. 6, p XX; and also
Stearne, P.A. and Hughes, E.J (1996), `Intellectual Property Regimes of Plant Patent Protection', In: New Crops, New Products. New Opportunities for Australian Agriculture, Proceedings of the First Australian New Crops Conference, Volume 1, Principles and Case Studies, (Eds.) Bray, R.A, Wood, I.M. & Fletcher, R..J., Rural Industries Research and Development Corporation Research Paper No. 97/21.
45 Lawrence, P. (1996), `Plant Genetic Resources for Food and Agriculture', In: New Crops, New Products. New Opportunities for Australian Agriculture, Proceedings of the First Australian New Crops Conference, Volume 1, Principles and Case Studies, (Eds.) Bray, R.A, Wood, I.M. & Fletcher, R..J., Rural Industries Research and Development Corporation Research Paper No. 97/21, pp.163-170.
46 Cut Flower and Nursery Industries Regulatory Reform Task Force (1999), Review of Regulatory Arrangements in the Victorian Cut Flower and Nursery Industries. Final Report, Office of Regulation Reform, State Government of Victoria.
47 Stearne, P.A. and Hughes, E.J (1996), `Intellectual Property Regimes of Plant Patent Protection', In: Bray, R.A, Wood, I.M. & Fletcher, R..J (eds.), New Crops, New Products. New Opportunities for Australian Agriculture, Proceedings of the First Australian New Crops Conference, Volume 1, Principles and Case Studies, Research Paper No. 97/21, Rural Industries Research and Development Corporation, Canberra, ACT.
48 Godden, D (1998), `Growing Plants, Evolving Rights: Plant Variety Rights in Australia', Australian Agribusiness Review, Vol. 6, pp XX.
49 Living potted flowering plants that are used for decoration instead of cut flowers.
50 Berny, J. (1998), `Examining the global potential of Australian native plants', Australian Horticulture, October 1998, pp.30-33.
51 Berny, J. (1998), `Examining the global potential of Australian native plants', Australian Horticulture, October 1998, pp.30-33
52 Godden, D (1998), 'Growing plants, Evolving Rights: Plant Variety Rights in Australia', Australian Agribusiness Review, Vol. 6, 1998.
53 Lawrence, P. (1996), `Plant Genetic Resources for Food and Agriculture', in: New Crops, New Products. New Opportunities for Australian Agriculture, Proceedings of the First Australian New Crops Conference, Volume 1, Principles and Case Studies, (Eds.) Bray, R.A, Wood, I.M. & Fletcher, R..J., Rural Industries Research and Development Corporation Research Paper No. 97/21, pp.163-170.
54 As a signatory to the FAO International Undertaking on Plant Genetic Resources.
55 Lawrence, P. (1996), `Plant Genetic Resources for Food and Agriculture', in: New Crops, New Products. New Opportunities for Australian Agriculture, Proceedings of the First Australian New Crops Conference, Volume 1, Principles and Case Studies, (Eds.) Bray, R.A, Wood, I.M. & Fletcher, R..J., Rural Industries Research and Development Corporation Research Paper No. 97/21s, pp.163-170.
57 Access to Australia's Biological Resources Discussion Paper (draft) XX (by whom?)
58 Rural Advancement Foundation International (RAFI), Plant Breeders Wrongs, Internet site: http://www.rafi.org/pr/release20.html, 17 September 1999, and also
Dawson, I. (1999), `Protecting New Plant Varieties', In: New Flowers, Products and Technologies, Proceedings of the 5th Australian Wildflower Conference, 14-17 April, 1999. pp. 53 - 54.
59 Access to Australia's Biological Resources, A Discussion Paper (1994), Department of Prime Minister and Cabinet, Office of the Chief Scientist, Commonwealth of Australia.
60 Wildlife Regulations 1992, r. 34(2A)(d).
61 Wildlife Regulations 1992, r. 12(2)(d).
62 Another approach, but also equally indirect, to answering the same query, would be to (a) first check the various categories of Wildlife Licences in the main part of the Wildlife Regulations [i.e. under regulations. 24 to 35 of those Regulations] and see which category of Licence allows the holder to breed wildlife [a check of the Licence categories in Appendix 2 shows that there are many licences that allow such behaviour]; (b) then go to the Schedule numbers at the rear of the Regulations and see which Schedules list emus [we know that they are Schedules 5 (Part B), 6 and 7 - see Appendix 1] and then (c) go back to the main part of the Regulations, look under those licence categories which allow breeding and see which ones also mention Schedules 5 (Part B), 6 and 7.
63 In some cases salvage is permitted on public land from approved roadworks or land designated for clearing.
64 Vulcz, L. K., Written Submissions, No. U50.
67 State forests are public lands managed for forestry and recreational and conservation purposes.
68 Venum Supplies Pty Ltd, Written Submissions, No. U16.
69 "Take" in the Flora and Fauna Guarantee Act 1988 (Vic) s. 3(1) means to kill, injure or disturb flora and fauna or to collect flora, whilst in the Wildlife Regulations 1992 (Vic) r. 5 it means to gain possession or control of wildlife by any means.
70 For example the definition of "wildlife" in the Wildlife Act 1975 s. 3(1) includes non-indigenous species and the Schedules in the rear of that Act list such species like deer and Japanese Quail.
