Commercial Utilisation of Australian Native Wildlife

CHAPTER 6 - ADEQUACY OF WILDLIFE REGULATIONS

Term of Reference (b) - the adequacy of existing Federal Government regulations and controls to ensure biodiversity of any native species commercially utilised

Introduction

6.1 Two seemingly opposing views were presented to the Committee on the adequacy of government regulations on the commercial utilisation of wildlife. First, as argued mainly by animal rights and some conservation groups, the current regulations restricting the use of native wildlife were not strong enough and should be strengthened. Second, as argued by wildlife industry groups, emerging and existing wildlife industries were hampered by complicated and restrictive bureaucratic requirements which delayed procedures and placed a financial constraint on business growth.

6.2 These two points of view, however, are not necessarily mutually exclusive. In fact, aspects of both arguments may be correct and changes in both areas may be needed. That is, in areas where commercialisation is not appropriate, regulations may need to be strengthened; and in areas where commercialisation is allowed, restrictive and duplicated bureaucratic arrangements may need to be rationalised. [1]

6.3 There is also a third point of view, linked to the first, which was strongly argued in some submissions that some regulations are in fact counter-productive to the conservation of wildlife and maintenance of biodiversity. A fourth, and important issue is that of the adequacy of the regulatory environment in relation to animal welfare.

6.4 The issue of exporting live native wildlife, currently prohibited under the Wildlife Protection (Regulation of Exports and Imports) Act 1982, was also discussed at length in evidence. This issue is considered in the following chapter (Chapter 7).

Regulations Have Failed to Protect Wildlife from Commercialisation

6.5 A number of conservation and animal welfare organisations argued that the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was fundamentally flawed because it allowed for the exportation of wildlife products and thus failed to adequately protect native animals. [2] The Australian Wildlife Protection Council argued that the Act failed to link animal welfare, cruelty and wildlife protection issues. [3] Nascaring Wildlife Carers concurred with this view, claiming in its submission that: 'There never has been and never will be adequate regulations and controls. It has been proven time and time again that regulations and controls are useless without the manpower to police each and every exploiter on a full time basis'. [4]

6.6 The Native Bird Liberation Alliance argued that if commercial utilisation of native wildlife was to expand, there would be a corresponding need to expand licensing in all areas (harvesting, trapping, transportation, sale, housing, health and hygiene), but because enforcement resources of government agencies were already inadequate, they would not be able to keep up with an expansion of wildlife trade. [5] The Arid Lands Environment Council argued that there was a need to strengthen the regulatory framework for the commercial utilisation of wildlife, as was evidenced by the fact that many commercial and non-commercial activities were already occurring without legislative control. [6]

6.7 The Sunshine Coast Environment Council Inc argued in its submission that the Wildlife Protection (Regulation of Exports and Imports) Act 1982 offered 'weak criteria in determining which programs should be used'. The Council suggested that another criteria be included 'which would question the benefit of trade to the species and Australian community; the economic viability of programs in the absence of government funding support, and ascertain whether animal welfare and cruelty concerns are properly addressed'. [7]

6.8 Under the Act, the Minister can approve the export of products from 'controlled specimens'; that is, species which do not require management plans and TRAFFIC Oceania saw this as a problem particularly as many more approvals had so far been made for Controlled Specimens, than under Management Plans. [8] TRAFFIC also noted that the existing legislative structure and enforcement arrangements were inadequate to protect wildlife from illegal activities and that wildlife crime was well organised and prolific (see Paragraph 7.7, for example). [9]

Regulations are Counter-Productive to Industry Development

6.9 Industry groups provided strong evidence that because commercial utilisation of wildlife had evolved in an ad hoc way, many of the statutory requirements were unnecessarily restrictive to their business. Three types of problems were encountered:

• inflexibility in statutory arrangements in the Wildlife Protection (Regulation of Exports and Imports) Act 1982;
• an overall excess of administrative procedures, compliance with which was costly and time-consuming; and
• inconsistencies between state arrangements, and between state and Federal arrangements, leading to a call for a national approach to commercial utilisation of wildlife. [10]
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Federal Regulations

6.10 The Wildlife Protection (Regulation of Exports and Imports) Act 1982 implements decisions made by CITES. However, while CITES aims to regulate trade only of rare and endangered species, a number of submissions pointed out that the current Australian restrictions on commercial exports from Australia were not imposed by CITES but were rather a case of Australia adopting stricter domestic measures than were required under CITES. [11] In short, CITES is invoked too often for species which are not endangered. [12] The major criticism by both industry and some state governments of provisions in the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was that commercial use of wildlife was too restricted and did not sufficiently take into account differences between wildlife species in terms of their distribution and abundance. [13]

6.11 In discussing the Act, the Western Australian Government noted that, in theory, provisions in the Act allowed for the use of wildlife but that in practice it was used 'to restrict or prevent use even when there was no conservation issue at stake'. The Act maintains a blanket ban on the commercial export of all native wildlife, regardless of whether animals were bred in captivity or taken from the wild, and regardless of whether the species were rare or common. The Western Australian Government argued that the Act should be revised to remove the blanket ban on live exports of fauna because it did not serve a conservation purpose, and to allow each case to be considered on its merits.

6.12 The Western Australian Government also noted that the Commonwealth may seize wildlife products at the point of export if authorities considered that there was insufficient documentation. This was equivalent to 'shutting the door after the horse has bolted' and had little conservation merit. In the opinion of the Western Australian Government, it would be better use of resources to ensure that the take from the wild was legitimate. [14]

6.13 The Tasmanian Government argued that while the Federal Government had a valuable role in regulating wildlife trade, changes were needed to the Wildlife Protection (Regulation of Exports and Imports) Act 1982 to allow for more varied approaches to management of harvested species. The Government's concern stemmed from an insistence by the Commonwealth on uniform management strategies for all macropod species despite there being differences in habitat and ecology of the various species. The Government argued that these differences should be taken into account when management requirements were determined. [15]

6.14 The Tasmanian Farmers and Graziers Association also argued that the Commonwealth had been too inflexible in its approach to marsupial management in Tasmania which has hindered an integrated program of wildlife control. The Association recommended that Environment Australia invest considerably more effort to assist Tasmania in presenting a 'tailor made' wildlife management strategy and then support it in a world forum.

6.15 The Wildlife Protection (Regulation of Exports and Imports) Act 1982 was also criticised on the grounds that it did not provide for biodiversity conservation through sustainable use of wildlife. [16] When asked by Senator Ferris whether the current regulatory system was so restrictive and outdated that it was preventing conservation being achieved and was contributing actively to the loss of biodiversity, Dr George Wilson stated:

… on leasehold land, governments intervene in wildlife matters in a way that really is often counterproductive. … In terms of making decisions about harvest rates and so on, I feel that there is a lot of scope for entrepreneurs to be able to use the resources of their land in the way that they see fit and not be constrained by much of the legislation at the moment. [17]

6.16 The Committee notes, however, that the Federal Government has proposed extensive changes to the suite of environmental legislation which will take into account the concept of biodiversity conservation through sustainable use of wildlife (see Paragraph 3.13).

6.17 Finally, the submission from the Zoological Parks Board of New South Wales pointed out that the legislative requirement that animals which were exported by approved institutions for inter-zoological gardens transfers come from captive-bred populations, excluded the possibility of transferring individuals of species which were hard to breed in captivity but which were nevertheless common in the wild and which were frequently given to zoos as orphaned juveniles which could not be released back to the wild. The Board recommended that the Act be amended to take this situation into account and that appropriate management plans be drawn up. [18]

Compliance Costs

6.18 A major problem for industry is the cost of compliance with wildlife regulations, both in terms of the cost of fees and the cost to business in delays in obtaining approval for exports. Costs are incurred both through direct compliance with the Federal Wildlife Protection (Regulation of Exports and Imports) Act 1982 and because there is often duplication of administrative requirements between state and Federal regulations.

6.19 The Western Australian Government submission, while acknowledging the need for regulatory provisions that protected threatened or endangered species, claimed that the current level of control over wildlife was so strict that it put industries based on native species at a considerable disadvantage compared to those based on non-native resources. This was compounded by the fact that emerging wildlife industries generally did not have access to commercial, technical and marketing resources, and had little ability to contribute to R&D. The Western Australian Government suggested that 'any initiative to streamline the regulatory controls associated with these industries is strongly supported'. [19]

6.20 Many industry groups and individuals commented that the combined impact of Federal and state regulations and the excessive amount of paperwork generated by them which was at times so great that it threatened the viability of their businesses. Detailed discussion of these problems is included in the relevant chapters in Part II of this report: kangaroos (Paragraph 9.95), emus (Paragraph 10.44), crocodiles (Paragraph 11.42), venom supplies (Paragraph 14.35), coral (Paragraph 15.19) and shells (Paragraph 15.27).

6.21 Often there is duplication of administrative arrangements between state and Federal government agencies because for export of wildlife products, the Commonwealth requires permits to be issued regardless of whether a state permit has been issued. In some instances, the Commonwealth requires the state to provide written verification that the source of the product is legitimate before the Commonwealth permit is issued. This could be simplified by arrangement with the Commonwealth to authorise the state to issue the full permit. [20]

6.22 Mr David Millar commented specifically on problems with duplication of effort, both between departments within the same tier of government and between state and Federal agencies. He also noted inordinately long delays, inefficiencies caused by frequency of personnel changes, inaction and hastily made policy decisions. About these inefficiencies he concluded: 'This [poor] standard of performance costs businesses money and it costs the country money'. [21]

6.23 The need for such complicated administrative arrangements was questioned by Professor Eugene Moll who stated in evidence:

I am always worried about too much bureaucracy. It is important that, if there is a lot of bureaucracy, it does not get in the way of what one does. Governments and bureaucracies around the world tend to protect themselves to a large extent from change. I am not sure how one can do it. … You have to have some sort of regulation. At the same time, if it becomes too draconian and too difficult to manage, it gets bypassed and people do it anyway, on the sly. It is a matter of getting that balance. [22]

Inconsistencies Between States in Wildlife Legislation

6.24 There is considerable lack of uniformity in regulations between states and this causes problems within industries, particularly with the transport of animals or products between states. Some examples of this are as follows: [23]

• In the crocodile industry, the Northern Territory and Western Australia allow ranching of eggs whereas the Queensland Government does not. This causes problems for the industry in that businesses cannot compete equally. [24]
• It is legal in South Australia to keep and breed a number of native mammals. These species are not endangered, there are well established captive breeding programs for them, and a relatively large amount is known about their living requirements. Yet such are the restrictions on the transfer of those animals interstate, that people who have hopping mice or bettongs as pets in Adelaide cannot take them out of South Australia. [25]
• In Tasmania, legislation only protects species indigenous to that state. If another state requests assistance in a matter, the Tasmanian authorities are powerless to operate. [26]
• South Australia and Victoria have very open licensing systems for keeping wildlife but captive breeding cannot supply demand and thus many animals are sourced from the wild. [27]
• NSW allows a person to keep less than 20 birds without a permit, regardless of whether the species is rare or endangered; Western Australia has a tiered system for keeping birds but records are not required to be kept so that it is almost impossible to trace parentage unless the owner has voluntarily kept records. [28]
• Birds and reptiles can be kept in Queensland but not mammals (as is the case in Victoria and South Australia). There is thus a flow of wild-caught Queensland mammals to southern states. [29]
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Need for a National Approach

6.25 Considerable evidence was presented to the Committee which suggested that both wildlife industries and biodiversity conservation would benefit greatly from a consistent, national approach. [30] This need arises partly because, while regulations remain within state boundaries, animals may range widely across state borders. In addition, according to the Australian Veterinary Association: 'There is arguably quite significant confusion about where responsibility for policy may lie, and how well this is being enforced'. [31]

6.26 Specific areas where national uniformity is needed included the following suggestions.

• Assessment of proposals for commercial utilisation of wildlife according to an agreed set of principles and guidelines. [32]
• Agreed set of principles and guidelines for export industries (standards, codes of practice, etc). [33]
• Where the commercial utilisation of wildlife does not have an export component, a national scrutiny of all proposals and a national overview of levels of use. [34]
• A national framework for animal welfare and national codes of practice for wildlife industries.
• Uniform national licensing conditions for kangaroo shooters. [35]
• A uniform and liberalised approach to fauna licensing laws (using South Australian or Victorian models as a starting point). [36]
• Uniform laws relating to display of animals to be administered by one instrumentality. [37]
• National coordination on the range of native species that may be kept as pets and a nationally agreed regulatory framework to cover existing native species in private ownership to protect the welfare of all such animals. [38]
• Coordinated intelligence between state and Federal agencies and consistency in provision of staff and resources for investigation of wildlife crime. [39]
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Rationalisation of Agency Responsibilities

6.27 The separation of responsibilities between government conservation agencies and those involved in primary industries is usually clear. However, with wildlife utilisation the boundaries become blurred and the keeping of native wildlife as agricultural stock (emus, for example) has raised the question of which agency should have responsibility for regulating farming activities and for industry promotion. While some state governments have been willing to transfer responsibility from conservation to primary industries, usually at the point when stock are actively farmed in closed-cycle operations, a number of non-government conservation groups fear that this will undermine the protection provided by conservation legislation.

6.28 Conservation groups consider that primary production agencies are more interested in promoting the needs of industry than the ecological needs of native species. To conservation groups, the record in fisheries and timbers, which are managed by primary industries portfolios, supports the view that the interests of commerce heavily outweigh the interests of biodiversity conservation. While there are mechanisms within the conservation domain to allow public participation in management decisions, they are not common in primary industries.

6.29 Environment Australia noted that the emergence of new and sometimes novel industries, such as butterfly farming or jellyfish harvesting, often exposed gaps in jurisdictional coverage. Awareness of the problem had led the Biodiversity Group of the Department to initiate discussions with the Department of Primary Industries, particularly with regard to that Department's Farm Forestry Program, and the potential for funding through the National Vegetation Initiative to investigate production from native trees and shrubs. [40] Further to this, the Department of Environment recommended that:

There is scope for greater harmonisation and streamlining of legislative and administrative approaches of government agencies with responsibilities for primary industry and those with responsibilities for conservation, both within and between the Commonwealth and State/Territory levels. [41]

Regulations are Counter-Productive to Maintaining Biodiversity

Prohibitionist Approach Has Not Protected Habitat

6.30 There is a prevailing view among both professional and amateur biological scientists that the existing regulatory regime has in the long-term failed to protect Australia's biodiversity. Despite the original intention of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 to protect wildlife, evidence was presented to the Committee that the prohibitionist approach taken by the legislation has been counter-productive because it has failed to provide widespread incentives to protect habitat (see also Paragraphs 4.66 – 4.69).

6.31 More than a decade ago, in a review of policies relating to Australia's endangered herpetofauna, attention was drawn to the fact that preoccupation by governments with individual species, and presumed rarity, had resulted in 'serious inconsistencies' and had 'distracted legislators from the more pressing need to conserve populations and habitats'. The review concluded that the prohibitionist approach of government agencies was 'counterproductive and contrary to the long-term conservation prospects of the very fauna for which such organisations have statutory responsibility'. [42]

6.32 While blanket prohibition has placed a strong emphasis on preventing Australian people from removing wildlife from natural habitats, and much financial resources have been dedicated to surveillance and enforcement, the legislation has failed to protect the habitat itself, resulting in considerable loss of wildlife. In support of this argument, wildlife biologist Mr Lyall Naylor quoted noted scientist, Dr Tim Flannery:

We spend an estimated $120 million a year, or $1.2 billion over the last 10 years funding our wildlife authorities and the results are still on the negative side of the ledger. Despite some gains, the overall story is one of loss. The monies allocated to preserving our wildlife is distributed between the 9 wildlife authorities who, in each State with the Federal body in Canberra, administer these functions. There has been a growth industry in legislation but little in terms of reversing the negative impacts on our wildlife and the losses that are occurring. [43]

6.33 Associate Professor Michael Tyler believes that the Act is 'flawed and lacking any social or scientific justification'. To him it was absurd that a farmer could legally kill hundreds of pest birds or bats, yet it was illegal to export just one of those animals for commercial gain. [44] Similarly, wildlife entrepreneur Dr John Wamsley of Earth Sanctuaries claimed that '… to date very little has been achieved by this legislation or by public funded bodies to reverse the decline in the wild of native species, with numbers of many continuing to drop'.

6.34 To many scientists, it is ironic that the failure to control feral animals and in particular feral cats has resulted in a far greater threat to and loss of small wildlife than ever presented by illegal activities. The reality of this impact was clearly described by Mr Peter Mirtschin of Venom Supplies:

To try to illustrate the futility of one of the preoccupations of the current regulative system in Australia, I offer the following example: Recently 9 Australian wildlife authorities and [the] customs authority, with their considerable taxpayer-funded resources, admitted that in 70 prosecutions in a 9 year period between 1984 and 1993, they saved 956 animals and eggs from wildlife traffickers. Sounds impressive? Or not? One feral cat is estimated to kill 800 native animals in one year. So for the price of one bullet, almost the same savings in wildlife can be made in an instant. Two bullets and your [sic] in front. [45]

Constraints on Scientific Research

6.35 There is a widespread view among biologists in Australia that legislation based on almost total prohibition has been counter-productive to scientific research and thus to effective conservation and management of Australia's biota. For both professional research scientists and amateur biologists interested in constructive involvement in the conservation of wildlife, the existing regulatory structure presents an extremely restrictive framework. In fact, many aspects of the regulatory regime were described as being counter-productive to the interests of both professional and amateur research activities.

6.36 In arguing the flawed nature of this policy approach, Professor Michael Tyler commented in 1979: 'the advent of conservation regulations in some states has created a very serious impediment to the most fundamental research … blanket regulation involving the total protection of all species in a class … conjures the analogy of putting every single Australian person in prison, on the legitimate argument that police are unable to distinguish innocent citizens from the few criminals in their midst'. [46]

6.37 While current legislation generally prevents the acquisition of wildlife for personal collections in Australia, a number of amateur biologists pointed out to the Committee that these laws impeded them from pursuing private research and denied genuine enthusiasts access to wildlife and thus opportunities to acquire knowledge and expertise. [47] The prohibitionist policy tended to discourage amateur biologists who would otherwise be long-term supporters of conservation measures. [48]

6.38 Many amateur biologists have experienced considerable administrative difficulty in obtaining a licence to catch and retain native animals. [49] There are considerable differences between states in administrative efficiency and difficulties in moving animals between states. [50] The cost of obtaining licences for collecting and transferring animals in some cases is also prohibitive. [51] There are also frustrating anomalies within some states; for example it is possible to get permits to obtain wildlife for the purpose of determining taxonomic relationships (which requires the killing of the animal) but it is almost impossible to obtain permits to capture animals to keep for the study of behaviour of that species. [52] When Ms Deborah Pergolotti, frogs Coordinator of the Cape York Herpetological Society, was asked whether she had a licence to keep frogs, she explained:

The way the state legislation is, for the amount of frog material that I have I do not need a licence. It is a strange sort of set-up in Queensland. In some ways it is ridiculous, because as an unlicensed person I can go out to any creek or pond I want and collect an absolutely unlimited number of tadpoles. As soon as I get a licence to keep them, I am not allowed to collect anything. So why does anybody want to get a licence? There are a lot of anomalies in the legislation that we are certainly concerned about. [53]

6.39 If the laws were changed to allow a quota to be taken from the wild for breeding this would satisfy amateur collectors and may result in a number of benefits to conservation. Herpetologist Mr Darren Green argued that in fact benefits could arise from allowing amateur biologists to take a 'quota' of wildlife from private properties:

… issuing permits or allowing a number (quota) of wildlife to be taken from the wild each year (harvest), for the purpose of personal collections or public display should be allowed. The wildlife then has a dollar value placed upon it and as a consequence the dollar value gives the landholder an incentive to protect the habitat. This is particularly important with reptiles such as snakes as they are the first to be beheaded with a shovel by the average landholder. [54]

6.40 On this matter the Western Australian Government argued that: 'The Commonwealth should recognise that commercial collection and/or breeding of native fauna (birds, reptiles, butterflies, etc for personal collections) can be readily managed to have nil impacts on conservation or to be advantageous to conservation'. [55]

Lack of Support for Research by Amateur Biologists

6.41 While amateur biologists make a considerable contribution to science and to conservation knowledge in Australia [56] very often their work goes unrecognised and unassisted. As outlined in the submission from the Queensland Insect Breeders' Association the contribution made by amateur entomologists to science is substantial, but not often appreciated:

It is not widely enough appreciated that much of the field work done on our native insect fauna has been and still is being conducted by non-professional entomologists. This is demonstrated by the fact that 95% of the Australian butterfly specimens held in the Australian National Insect Collection are from private sources … An examination of the authors of entomological papers published in Australia will reveal the significance of private research. … As the focus of private entomological research is not agriculturally oriented, it brings balance to the discipline of Entomology. … Much of the information published in popular books on natural history has its sources in private entomological research. [57]

6.42 The value of the work carried out by amateur biologists was emphasised in the submission made by the Cape York Herpetological Society. The Society believes that it is a fallacy that private keepers of native fauna did not do anything to assist in conservation, but merely reduced wild populations out of greed. In fact, the contrary was true in some instances where the dedication of amateur biologists had meant that captive bred stock were available after the species had become extinct in the wild. An example of this is the case of the Lake Eacham Rainbow Fish (Melanotaenia eachamensis), which was classified 'extinct' in the wild but, owing to the perseverance of several individuals who were intent on keeping the species in aquaria regardless of the regulations, was 'rediscovered' in captivity. [58]

6.43 The Society argued that zoos and universities, which were often charged with overseeing the recovery of declining species, had little motivation to save a species unless there was a financial reason to do so, or a PhD project attached to it. In contrast, amateurs who were willing to spend their own time and money on rearing animals, and who generously shared information about that species among other amateurs and professionals, were prevented from becoming involved.

6.44 In terms of frogs, the Society cited an example of a FNQ species (Taudactylus acutirostris) that is now presumed extinct which might have been saved had amateur herpetologists been given access to the species. Several more FNQ frog species are in severe decline. The submission concluded: 'While interested amateurs are kept away from these frogs, there is little hope of their recovery'. [59]

6.45 In a review of the status of amateur herpetology in Australia, Mr Harald Ehmann, argued that amateur herpetologists have made a substantial contribution to the study of herpetology over the last 30-40 years. They have played a strong role in public education, environmental awareness and conservation, as well as providing a training ground and source of recruitment into professional areas. Despite these contributions, however, the overall status of amateur herpetology is not held in high regard by those in authority, particularly wildlife authorities. [60] In addition, many amateur biologists suffer much frustration in their attempts to obtain assistance from government bodies. Mr Bradley Oliver, for example, is keen to conduct research on the Woma python, a species about which little is known, but his attempts to obtain assistance from the South Australian Department of Natural Resources and the Adelaide Zoo have been discouraging:

There is just so little information on these animals. I have started off from scratch. … I have been given very limited help from Adelaide Zoo. I have asked for information on parasites. … I got basically no response. I was down there the other week and I wanted to see their animals. I was not even allowed to have a look at them. So I have had no help from them. … All I wanted to do originally was to breed them, from which I would obtain my scientific data to publish any papers. … I find the whole circumstances very frustrating and discouraging. I am only a young person. I have been keeping reptiles for six years now and all my experiences with National Parks have been discouraging. [61]

Voluntary Conservation Efforts

6.46 It was argued in evidence to the Committee on a number of occasions that Australian wildlife protection laws were so prescriptive that they acted against voluntary conservation efforts. The many ways in which voluntary conservation efforts are hampered by excessive and inappropriate Federal and state regulations is best described by relating several examples.

Herpetology

6.47 The Victorian Herpetological Society commented in its submission: ' … most government regulations and controls seem to be designed to protect bureaucracies. There are few, if any, conservation success stories where government management is involved'. [62] According to the Society, because little government-sponsored work is carried out on reptiles and frogs and because the ability of amateur biologists is hampered by regulations, the unnecessarily slow rate at which information on the biology and life history of individual species is being gathered has resulted in a major problem for conservation. [63]

6.48 In discussing the status of amateur herpetology in Australia, Mr Harald Ehmann, argued that the contribution made to biological science by non-professionals in Australia was significant, yet the attitude held by professionals and people in authority towards amateurs was negative and unsupportive. Further, the paper argued, 'a feeling and self-sense of criminality in many amateur herpetologists (and a good number of professionals …) is engendered by the existing complicated, often irrelevant legislation. … The restrictions of the past 20 years on amateur herpetological activities and the development of herpetological skills pose a serious long-term risk to herpetology. … conservation would benefit significantly from a rationalisation of the present restrictive policies and interpretations of legislation'. [64]

6.49 Similarly, Mr Bradley Oliver, an amateur herpetologist, commented in his submission to the Committee: 'Under blanket legislation we are seeing the decline of native wildlife at an alarming rate. The current system regulates people who wish to keep and learn about out native wildlife by confronting them with frustrating, confusing and poorly managed laws and is doing nothing to conserve and increase wild populations'. [65] This view was also put by the Victorian Herpetological Society which stated in its submission to the Committee: 'The least threat to wildlife populations is collecting and keeping, however this is one of the main areas that state governments have directed a lot of their resources'. [66]

6.50 Ms Pergolotti gave the following example of the way in which wildlife laws were counter-productive to amateur conservation efforts:

When I lived in Sydney, I was called upon to document the road kills at Homebush Bay (the future Olympic site) of the endangered Green and Golden Bell Frog (Litoria aurea). … These endangered frogs were using a particular stretch of one road to cross from the famous 'brickpit area' to an ephemeral wetland on the other side of the road. In crossing, they were being run over by cars. In two rainy nights in January 1995, an estimated 6-13% of the entire population of 100-200 known adults was killed, one of those being a gravid female.

I offered to organise a group of volunteers to patrol the road looking for approaching frogs, pick them up and carry them to the other side and release them unharmed. I was warned that if any of us picked up an endangered frog (referred to at the time as a "schedule 12 animal"), we would be prosecuted for "interfering with an endangered species". However, no charges would be laid against anyone running over the same frog, even if the event was witnessed and their registration number taken.

… NP&WS refused to back any of the suggestions [made by Ms Pergolotti to save the frogs] on the grounds that if the general public found out endangered frogs were at that location, everyone would show up and illegally collect every frog in the area. … [However] the same department later issued a "take and kill" licence to the Olympic Coordination Authority to kill Green and Golden Bell Frogs … so much for the conservation and protection of endangered species. [67]

Aviculture

6.51 According to the Queensland Council of Birds Societies, the regulation of the movement of birds within Australia through a permit system administered by Environment Australia is thorough and functions well (and may be necessary), but does nothing for the conservation of birds in their natural habitat. [68] As an example, Mr Cameron McTavish, Past president of the Pet Industry Joint Advisory Council of Australia argued that recent changes to regulations in Queensland had been counter-productive to the status of the threatened Gouldian Finch:

The Gouldian finch, which you are probably familiar with, a very pretty little finch, is expected to be extinct in the wild within 10 years. There is a very limited population of them. There is a huge population in aviaries,hundreds of thousands of them. They breed like mice if they are protected and fed and looked after. But the laws in Queensland have just been changed so that for someone to own a pair of Gouldian finches they have to pay a $35 annual fee. For the retailer to sell them and trade in them, he has to pay a $350 annual fee.

The result is that these birds are selling for only about $20 a pair … the market has totally collapsed; people have stopped breeding this bird. Why not buy a canary where you do not have to pay a $35 annual fee? The market has totally collapsed. People who are breeding this endangered species are going out of it just because there is no economic return in it any more. The same is true for a number of other species … [69]

Insects

6.52 Entomologists similarly have problems with wildlife laws, particularly with the collection of common species. [70] As explained by Mr Clive Shaun, a member of the Queensland Insect Breeders' Association who gave evidence to the Committee in Cairns:

As state and federal laws stand at the present time, with a few exceptions, no amateur or commercial persons are able to export any of our native insect species unless the specimens themselves have been captive bred by fully licensed captive breeding establishments. At present, a collector has to be at least affiliated with a government body to obtain a collecting permit. It is well known that these permits are just not normally available to the general entomologist.

Our current legislation also has some negative effects. For example, amateur entomologists cannot expand their own private collection by exchanging material with their counterparts overseas without the risk of state or federal prosecution. Nor can we easily undertake any type of field work to expand our knowledge in either state forests or national parks. It is easy to see that current legislation is only stifling private research. At present, Australia is the only country in the world with such strict measures in place. [71]

6.53 Mr Shaun went on to argue that with the exclusion of some rare species, there was no reason why the government should not allow either a self managed or a licensed system to operate. This would allow amateur and commercial collectors to exchange a small amount of insect material with overseas contacts without the risk of state or Federal prosecution.

Need to Foster Kinship

6.54 It is well recognised that people have a greater degree of care for wildlife if they have had some personal involvement or direct contact with it, yet according to Dr Tim Flannery, author of the popular science book, The Future Eaters, 'there is a great legal fence that divides ordinary Australians from their fauna'. [72] Thus a number of submissions spoke of the need to foster kinship with our wildlife, particularly among children. [73] This can take the form of pets, nature-based tourism, encouraging wildlife into urban areas and increased use of native plants for food and ornament. By fostering a greater understanding of our natural heritage the needs of wildlife become more widely known and are more likely to be catered for by landholders, the public and the government.

6.55 In his submission to the Committee, Mr David Millar commented that allowing people access to wildlife, in a controlled fashion, would do much to foster education and understanding. In discussing the importance of keeping reptiles and amphibians as pets, Mr Millar stated;

Not only is the herpetofauna market close to cost neutral to wild populations but it provides one very important if unquantifiable benefit, one which is ignored by the animal 'rights' movement. I can do no better than to quote Cogger (1997) who, describing the consequences of reduced availability of specimens for the enthusiast says, 'I believe equally passionately that the more we proscribe physical contact between people and animals, the more we increase society's indifference to the intrinsic worth of animals and to their welfare and fate.' The ultimate fate of our wildlife is linked to an empathy for animals which does not develop in many people who live a barren, animal free existence'. [74]

6.56 Similarly, Mr peter Mirtschin writes: 'One of the biggest problems, I feel, is that most Australians have lost touch with their native wildlife, which has been effectively shielded from the public by unnecessarily draconian legislation and regulation'. [75]

Animal Welfare

Legislation

6.57 Each state and territory in Australia has legislation relating to the prevention of cruelty to animals and to animal welfare covering both domestic pets and agricultural animals. [76] However, this legislation varies very much between states in terms of current relevance to animal welfare issues. Some states have enacted new or revised legislation relatively recently (ACT, Tasmania and Victoria, for example), some are currently drafting totally new legislation (New South Wales, Northern Territory and Queensland); while the legislation in some states has remained relatively unchanged for many decades (Western Australia). Because there is no Commonwealth 'Prevention of Cruelty' legislation, Commonwealth employees (such as scientific researchers) are bound by the various state laws in which they are working.

6.58 Legislative provisions are supported in each state and territory by 'Codes of Conduct', or 'Codes of Practice', which relate to specific types of animals (dogs, cats, birds, sheep, horses, etc). These documents are often based on 'model' codes developed by the Commonwealth and adapted by each state government, in consultation with animal welfare groups, to suit particular circumstances. However, the legal status of these codes varies between states. They may also vary within states according to legislative arrangements.

6.59 In Queensland, for example, the concept of codes of practice is relatively new to wildlife management, having been introduced with the commencement of the Nature Conservation Act in December 1994. As described by Mr David Baker, Wildlife Manager for NPWS, various codes have difference levels of accountability:

… whether or not a code of practice is enforceable is entirely dependent on how it is presented in the regulation. For instance, the code of practice of the Queensland Wildlife Parks Association, which is the association that represents zoo keepers,wildlife parks,in the state, is enforceable under the regulation. …The code of practice for the humane shooting of kangaroos is enforceable under the legislation. There is provision in the legislation for an entirely voluntary approach if the minister deems that appropriate. It is the Minister for Environment who approves a code of practice. Depending on what the legislation says, we end up with a code which is either enforceable or not. [77]

6.60 In Tasmania, for example, there is only one code of practice which has legal status and that relates to animal research. There is a code of practice relating to the possum industry, but the only mechanism to enforce the code is that it is a licence condition that the licensee comply with the code. [78]

6.61 Enforcement of matters relating to animal welfare is usually vested in designated officers of state government departments, full-time officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA), and members of the police force, but in practice, the bulk of prosecutions are made by RSPCA officers.

6.62 In most states, [79] advice to government on matters relating to animal welfare is provided by an independent Animal Welfare Advisory Committee (AWAC) which reports to the Minister responsible for matters relating to animal welfare. The Commonwealth Government is advised by a National Consultative Committee on Animal Welfare which coordinates animal welfare activity in Australia, and makes recommendations on matters of national importance to the Minister for Primary Industries.

Codes of Practice

6.63 As described above, the commercial use of domestic animals is regulated through 'Codes of Practice' and, in some wildlife industries, codes have already been developed (emus, possums, crocodiles, for example). While codes are usually voluntary, they may have punitive aspects if operators are found to be in contravention of them (such as the loss of a commercial licence if animals are not killed in the specified manner). However, a number of submissions expressed concern that the 'Code of Practice' system was inadequate.

6.64 ANZFAS argued in its submission and in oral evidence to the Committee that codes of practice did not contain sufficient legislative strength and that there was insufficient industry self-regulation to protect the welfare of individual animals subject to commercial use. [80] ANZFAS noted the following specific problems with the system:

• some industries entirely lacked codes of practice and often they were written well after the industry had commenced;
• some codes actually allowed cruel practices to go on;
• some codes lacked in important details;
• many codes were not legally enforceable and, even if they were shown to be breached, it was often impossible to get a prosecution; and
• surveillance of industry practice was rarely undertaken, particularly in remote areas. [81]

6.65 ANZFAS was particularly concerned that in several states (Victoria, Tasmania and South Australia) there were clauses in the Prevention of Cruelty to Animals statutes that allow as a defence the fact that a practice was described in a code of practice. [82] In evidence to the Committee the Director of ANZFAS, Ms Glenys Oogjes, concluded: 'I think that codes are a PR exercise … I do not feel any comfort in the fact that we have these codes'. [83]

6.66 The lack of a comprehensive system of legal accountability for matters relating to animal welfare in Australia was also of considerable concern to the RSPCA. While all states have Acts relating to aspects of animals welfare, some of these are out of date and some are ineffective. Not one state has legislation which covers all circumstances and all species. As explained by the National Director, Dr Hugh Wirth:

… one of the difficulties we are faced with in making any decisions about utilisation of both domestic and native animals in this country is legal accountability for action. The issue is that you cannot propose utilisation of animals, for whatever good or bad reasons, if you have no legal accountability for the consequences. That is why the RSPCA policies are clearly in opposition to so many things, because we know that the fate of those animals is unprotected. [84] …

I am not just simply talking about native animals, I am talking across the board; activities involving animals. There is no national system or state-by-state system of legal accountability. There is in some areas where it is easy to achieve. There is legal accountability, for instance, in how Australians look after their dog and cat in most jurisdictions. [85]

6.67 When asked about the role of animal welfare legislation and codes of conduct, Dr Wirth claimed that there was an almost complete lack of an inspectoral force. This allowed commercial enterprises to sidestep compliance with animal welfare codes:

We have the same example where AQIS is supposed to be responsible,or was formerly responsible,for animal welfare in domestic abattoirs killing domestic stock. There was never a prosecution and yet, in my capacity as President of the RSPCA involved with the national consultative committee on animal welfare, when we went through abattoirs as a working group,this is only several years ago,to have a look at humaneness, we saw inhumanity everywhere. I have absolutely no confidence in that convoluted system. There is no public legal accountability unless it is regulatory. …

The reason it [repeated cases of inhumane treatment of animals] does not show up is because there is no inspectorial force. … there are blatant breaches of the so-called codes approved by AQIS, and you have got AQIS people on the plant who never report anything,who never do anything. That is the problem with commercial utilisation: all of the checks and balances are sidestepped to achieve an end result. [86]

6.68 The RSPCA also noted that many Codes of Practices were merely cosmetic in effect. Frequently, species management plans contained 'well intentioned objectives in terms of treating animals humanely', but there was often a lack of explanation as to how the methods were to be carried out and, more importantly, no mechanism to ensure compliance because the code was only advisory, not regulatory. [87]

6.69 Animal Liberation (Victoria) also expressed concern that codes of practice were not legally enforceable, [88] and on this matter Animal Liberation (South Australia) commented:

… animal welfare groups are aware of the inadequacy of existing laws, and the totally ineffectual "Codes of Practice", to prevent animal suffering. This is true in existing industries, such as the intensive farming industries of egg and chicken production, and is of particular concern in some new industries, such as emu farming. [89]

6.70 Emu Industry representative, Mr Greg Barowski, agreed that enforceability was a problem with voluntary codes of practice:

Unless codes of practice can be enforced by any self-regulating industry body or somebody else, that leaves you open to the fair enough criticism that, if you cannot do anything about a code of practice, what is the point of having a code of practice. [90]

6.71 Another problem for industry is the potential for different codes to overlap and conflict. In Queensland, for example, Hartley's Creek Crocodile Farm has to consider three codes of practice in its management of crocodiles: one which relates to workplace health and safety, one which relates to farming animals, and one which relates to animals kept in wildlife parks. [91]

6.72 One advantage of the system is that codes can be revised relatively easily, much more easily than regulations or legislation. Dr Mike Manuel, Secretary to the Tasmanian Animal Welfare Advisory Committee, explained to the Committee that animal welfare codes needed to evolve to take into account new research results and changing public opinion and he cited the example that while the third version of the possum code of practice had just been released, it was already being subject to further review. [92] Mr Manuel also stated:

The community makes a judgment as to what sort of welfare it is prepared to accept and the standards it is prepared to accept, and that is one of the reasons why in the animal welfare act we have got two words for cruelty,that is, 'unreasonable' and 'unjustifiable' pain and suffering to animals. So if the community wants to shift the welfare to a different plane, the community will have to probably look at the cost to it. [93]

Impact of Government Policy

6.73 According to a recent draft report by the Industry Commission, despite efforts by government to develop and implement policies on ecologically sustainable development in Australia, the process has been 'ad hoc, incomplete and tentative'. At fault were Australian governments which:

… have yet to put in place a comprehensive, integrated and far-sighted way of promoting the ecologically sustainable management of natural resources in agriculture. On top of this, there are flaws in the design and execution of what has been done. [94]

6.74 In arguing the case for change, the Industry Commission noted a number of problems with the current system. The first was a tendency to over-regulate the resource owners or managers. While the regulatory burden continued to grow in an uncontrolled manner, rules more often prescribed 'means to be used rather than objectives to be achieved'. The second was the fact that the markets for natural resources (surface and ground water, forestry, native flora and fauna) were either non-existent or functioned poorly. The major problem identified by the Industry Commission was the 'lack of well-defined, tradeable rights'. The third was the failure of most jurisdictions to provide incentives to promote biodiversity conservation on private land, combined with a lack of coordination of private efforts with other government programs for natural resource management. Finally, the Commission noted that the objectives and achievements of many environmental programs were poorly defined or obscure, and that while environmental commitments were made, there was often lack of adequate implementation of policy.

6.75 The proposal made by the Industry Commission had three components:

• to recast the regulatory regime to ensure resource owners and managers take into account the environmental impacts of their decisions (a single unifying statute in each jurisdiction and a greater emphasis on voluntary codes of practice);
• to create or improve markets for key natural resources (including the removal of impediments and pricing reforms to eliminate subsidised use); and
• to encourage conservation on private land (an increased duty of care and the widespread use of conservation agreements with landholders). [95]

Summary and Conclusions

6.76 A number of different views on the adequacy of government regulations on the commercial utilisation of wildlife were presented in evidence. First, animal rights groups argued that the current legislation was fundamentally flawed because it allowed for the exportation of wildlife products and thus failed to adequately protect all native animals.

6.77 Second, industry groups provided strong evidence that because commercial utilisation of wildlife had evolved in an ad hoc way, many statutory requirements were unnecessarily restrictive to their businesses. Three types of problems were encountered: inflexibility in statutory arrangements in the Federal Wildlife Protection (Regulation of Exports and Imports) Act 1982 which prevented export of live animals and caused difficulties in the export of products; an overall excess of administrative procedures, compliance with which was costly and time-consuming; and inconsistencies between state arrangements, and between state and Federal arrangements leading to a call for a national approach to commercial utilisation of wildlife. The Committee is concerned that duplicated and onerous administrative procedures are unnecessarily hindering legitimate industries in Australia. The Committee recommends that State and Federal Governments together review all administrative procedures relating to commercial utilisation of wildlife in Australia with a view to increasing their efficiency so as to ensure that there are no unnecessary hindrances to industry.

6.78 Third, many conservation groups, scientists and amateur biologists argued that some regulations were counter-productive to the conservation of wildlife and maintenance of biodiversity. While amateur research and voluntary conservation efforts in Australia had made a significant contribution to scientific knowledge in the past, the ability of non-professionals to contribute to the knowledge base was ever decreasing. In addition, the current prohibitionist approach failed to recognise the importance of fostering kinship between people and their wildlife. The Committee is particularly concerned that Federal and, in particular, state government regulations in some instances act to hinder biodiversity conservation. The Committee believes that governments should make greater efforts to recognise the contributions made by amateur biologists. The Committee recommends to Federal and state Governments that they review wildlife regulations with a view to facilitating the work of professional and amateur scientists so that they can actively contribute to biodiversity conservation.

6.79 Fourth, animal rights groups and, in particular, the RSPCA, argued that the current system of voluntary codes of practice did not contain sufficient legislative strength and that there was insufficient industry self-regulation to protect the welfare of individual animals subject to commercial use. The Committee is particularly concerned about animal welfare. While considering that the code of practice system is an appropriate mechanism for regulation, the Committee believes that some aspects of the system need strengthening. In particular, the Committee recommends that codes of practice relating to wildlife industries should: (1) be in place prior to approval being given for an industry to commence operations; (2) have a clear connection between licensing conditions and compliance with a code of practice such that failure to comply results in a withdrawal of the licence; (3) be consistent between states; and (4) where several codes apply to the same industry, be consistent between codes.

Footnotes

[1] However, some organisations submitted that existing legislative arrangements were adequate and that there was no need for change. See for example, Submission No.s 8, 9, 50 (p. 7).

[2] For example, Submission No. 66, p. 9. 128, Submission No. 54, p. 2.

[3] Evidence, p. RRA&T 982.

[4] Submission No. 297, p. 2.

[5] Evidence, p. RRA&T 715.

[6] Evidence, p. RRA&T 318.

[7] Submission No. 54, p. 2; see also Submission No. 65, p. 3.

[8] Submission No. 299, p. 5 (For a discussion of the difference between Controlled Specimens and Management Plans, see Paragraph 3.9ff).

[9] Submission No. 299, p. 8.

[10] Submission No. 12, p. 17.

[11] Submission No. 12, p. 9.

[12] Submission No. 77 (p.6), 157 (p. 24), 177, 195 (p. 6); see also the NT A Trial Management Program for the Red-Tailed Black Cockatoo (Calyptorhychus banksii) in the Northern Territory of Australia, Parks and Wildlife Commission of the Northern Territory, Feb 1997, p. 2.

[13] Submission No. 7, for example.

[14] Submission No. 329, p. 5.

[15] Submission No. 338.

[16] Evidence, pp. RRA&T 514-5.

[17] Evidence, p. RRA&T 1126.

[18] Submission No. 313.

[19] Submission No. 126, p. 1.

[20] Submission No. 329, pp 4-5.

[21] Submission No. 175, pp. 3-4.

[22] Evidence, p. RRA&T 63.

[23] Submission No. 70.

[24] Evidence, pp. RRA&T 175, 186.

[25] Evidence, p. RRA&T 606; see also Submission No. 116, p. 1.

[26] Submission No. 70.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Evidence, pp. RRA&T 186, 273, Submission No.s 149, 190, 194.

[31] Submission No. 187, p. 10.

[32] Submission No. 314, p. 6.

[33] Evidence, p. RRA&T 36.

[34] Submission No. 314, p. 7.

[35] Evidence, p. RRA&T 36.

[36] Submission No. 175, p. 19.

[37] Submission No. 175, p. 19.

[38] Draft Minutes, NCCAW19, 19 May 1997.

[39] Submission No. 70, Evidence, p. RRA&T 1051ff.

[40] Submission No. 198, p. 50.

[41] Submission No. 198, p. 50 (Recommendation 24).

[42] Grigg G, Shine R and Ehmann H (eds) 1985 The Biology of Australasian Frogs and Reptiles, Royal Zoological Society NSW, Surrey Beatty and Sons, Chipping Norton, NSW, p. 435.

[43] Evidence, p. RRA&T 270.

[44] Submission No. 104.

[45] Submission No. 69, p. 8.

[46] Tyler, M (1979) The impact of European man on Australian amphibians. In 'The Status of endangered Australasian wildlife', ed M J Tyler, Roy. Soc. SA.

[47] Submission No. 337, p. 3.

[48] 1992 Herpetofauna 22 (1): 1-2 'Editorial - A case for significant deregulation of the keeping and taking or reptiles and frogs', p. 1.

[49] See for example, Submission No. 119 and Evidence, p. RRA&T 554.

[50] PIJAC considers Queensland most the difficult in this regard (Submission No. 332).

[51] See for example, Submission No. 41 p. 17.

[52] Submission No. 1, p. 2.

[53] Evidence, p. RRA&T 257.

[54] Submission No. 40, p. 1.

[55] Submission No. 329, p. 4.

[56] For example, Rowlands estimates that some 40% of contributions to museum collections and to the literature of herpetology in Australia has been made by amateurs (Rowlands R P V 1982 The role of the amateur herpetologist. In "New Zealand Herpetology" Ed Don G Newman, Occasional Publication No.2 New Zealand Wildlife Service, Department of Internal Affairs).

[57] Submission No. 41, p. 13.

[58] Submission No. 308, p. 6.

[59] Submission No. 308, p. 6.

[60] Ehmann, H (1994) Amateur Herpetology in Australasia: its history, roles, status, problems and future. Herpetofauna 24(1): 6 - 12.

[61] Evidence, p. RRA&T 593, 595.

[62] Submission No. 190, p. 4.

[63] 1992 Herpetofauna 22 (1): 1-2 'Editorial - A case for significant deregulation of the keeping and taking or reptiles and frogs'. See also Paragraph 14.7ff.

[64] Ehmann, H 1994 Amateur Herpetology in Australasia: its history, roles, status, problems and future. Herpetofauna 24(1): 10.

[65] Submission No. 119, p. 4.

[66] Submission No. 190, p. 3.

[67] Submission No. 308, p. 3. Note: for every frog or reptile collected by amateurs, there is estimated to be an additional 880 killed on roads or lost through land clearing; in addition, Australia loses 24 million reptiles by domestic and feral cat predation each year (1992 Herpetofauna 22 (1): 1-2 'Editorial - A case for significant deregulation of the keeping and taking or reptiles and frogs', p. 2). See also Submission No. 1, Attachment Australia's Reptiles Victims of the Road.

[68] Evidence, p. RRA&T 116.

[69] Evidence, p. RRA&T 691.

[70] Submission No. 41, p. 16.

[71] Evidence, p. RRA&T p. 181.

[72] Flannery, T F (1994) The Future Eaters, Reed Books, Sydney.

[73] Submission No.s 91 & 190, Evidence, p. RRA&T 384-5.

[74] Supplementary Submission No. 175, p. 11.

[75] Submission No. 1, Attachment - Flaws in the Laws of Nature.

[76] Information for the following section has been adapted from information provided by the RSPCA Internet site at http://www.ezycolour.Committee.au/RSPCA/australia.html.

[77] Evidence, p. RRA&T 65.

[78] Evidence, p. RRA&T 914.

[79] The exceptions are Northern Territory, Queensland and Western Australia.

[80] Evidence, p. RRA&T 234.

[81] Evidence, p. RRA&T 950.

[82] Evidence, p. RRA&T 951.

[83] Evidence, p. RRA&T 951.

[84] Evidence, p. RRA&T 944.

[85] Evidence, p. RRA&T 938.

[86] Evidence, p. RRA&T 945.

[87] Evidence, p. RRA&T 939.

[88] Evidence, p. RRA&T 971.

[89] Submission No. 35, p. 1.

[90] Evidence, p. RRA&T 1036.

[91] Evidence, p. RRA&T 138.

[92] Evidence, p. RRA&T 900.

[93] Evidence, p. RRA&T 894.

[94] Industry Commission A Full Repairing Lease – Inquiry into Ecologically Sustainable Land Management, Draft Report, September 1997, Executive Summary, p. xxi.

[95] Industry Commission, op cit, pp. xxii-xxiv.