by Tony Pople and Gordon Grigg
Department of Zoology, The University of Queensland
for Environment Australia, August 1999
Chapters 10,11,12 and 13 and Appendix 1 provided by staff at Environment Australia
APPENDIX 1. LEGISLATION
Background to interpretation
Background information is important in determining the objectives and requirements of legislation and the concerns of those responsible for its introduction. The information considered by Parliament, at the time the Wildlife Protection (Regulation of Exports and Imports) Bill was before it, is relevant to those interpreting the legislation.
In his second reading speech on the Bill to the House of Representatives on 6 May 1982 (Hansard, House of Representatives) the Hon. Ian Wilson, Minister for Home Affairs and Environment, stated 'the purpose of the Bill is to strengthen arrangements for the protection of Australia's animals and plants, and world wildlife generally, by improving the effectiveness of our import and export controls' and '.... the Wildlife Protection (Regulation of Exports and Imports) Bill consolidates wildlife controls into a single Act, and allows the Commonwealth to more effectively implement the objects of CITES'.
The Minister added further 'Regarding Australian wildlife and related products, the Bill is based on the premise that commercial trade will only be permitted if it has been conclusively established that such trade will not adversely affect Australian wildlife. There will be no weakening of the strict controls that Australia has traditionally maintained on the export of native fauna. The Bill further extends this protection to our unique native flora.'
The opening paragraph of the Explanatory Memorandum to the Bill defined its purpose as follows: 'The purpose of this Bill is to allow Australia to more fully implement and fulfil its obligations under the Convention on International Trade in Endangered Species of wild Fauna and Flora (CITES) and other international agreements and to ensure that no Australian native species becomes threatened through inadequate control of exports or through imports of exotic species.'
In the same documents the purpose of Clause 10 of the Bill was explained thus .... '(Clause 10) provides that the Minister may approve management programs for the purposes of the Bill. The regulations will set out the matters to which the Minister is to have regard in approving such programs. The relevant criteria will be in accordance with the requirements established by the Commonwealth in consultation with the States and Territories and will be aimed at monitoring the methods and level of take to ensure that the species does not become endangered.'
It is clear that a major concern of the Government and of Parliament with the passage of the WP(REI) Bill was for the protection of Australian fauna and flora from being adversely affected to the point that they became threatened or endangered. In cognisance of the powers of the Commonwealth this concern can, in relation to species of wildlife subject to State management, only be applied through the WP (REI) Act if those species are, or are proposed to be, exported.
In considering the legislative requirements for management program approval then, it is important to fully appreciate this limit to Commonwealth power. The Commonwealth has no power in law to influence the State management of kangaroo species not subject to export or international agreements and would be powerless to directly intervene should such State programs operate counter to Commonwealth views of conservation and management.
The other important aspect of the WP (REI) Act is Commonwealth responsibility to protect native fauna and flora from the import of hazardous and potentially hazardous animals, plants and goods.
The Act as it relates to kangaroo management
The following elaborates the sections of the WP (REI) Act which relate directly to kangaroo management.
Provisions for approval of management programs
Section 31(c) (iv) of the WP(REI) Act provides that commercial kangaroo product exports must be derived from kangaroos 'taken in accordance with an approved management program'.
Section 4 (i) of the WP(REI) Act defines an approved management program as 'a management program declared by a declaration in force under section 10 to be an approved management program'.
Section 10 of the WP(REI) Act relates to the approval of management programs and, read in conjunction with regulation 5 to the Act provides the framework upon which a management program be assessed for approval. This section states:
'10 (1) Subject to subsection (1B) and to any regulations referred to in subsection (2), the Minister may, by instrument under the Ministers hand published in the Gazette, declare a management program that is being, is proposed to be, or has been carried out, in Australia, in an external Territory or in another country to be an approved management program for the purposes of this Act.
(1A) A declaration under subsection (1) may be made:
- on the Ministers own initiative; or
- on written application being made to the Minister.
- a management program has been, is being, or is proposed to be, carried out in a State or territory; and
- the management program relates to the protection, conservation or management of particular animals or particular plants, or of both; the Minister must not make a declaration unless:
- legislation relating to the protection, conservation or management of the animals or plants is in force in the particular State or Territory; and
- the legislation applies throughout the State or Territory; and
- in the opinion of the Minister the legislation is effective.
(2) The regulations may provide that the Minister shall not declare a management program to be an approved management program unless he is satisfied of certain matters in relation to the program.
(2A) A declaration under subsection (1) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than five years is specified in the declaration in accordance with subsection (3).
(2B) If a declaration ceases to be in force because of subsection (2A), this Act does not prevent the Minister from making a fresh declaration under subsection (1).
(2C) A fresh declaration under subsection (1) may be made during the 90-day period before the time when the current declaration ceases to be in force.
(2D) A fresh declaration that is made during that 90-day period takes effect immediately after then end of that period.
(3) The minister may make a declaration about a management program even though he or she considers that the program should be an approved management program only:
- during a particular period; or
- while certain circumstances exist; or
- while a certain condition is complied with; but in each case, the instrument of the declaration is to specify the period circumstances or condition.
(4) If a declaration specifies circumstances as mentioned in subsection (3), the Minister must revoke the declaration if he or she is satisfied that those circumstances have ceased to exist.
(5) The Minister may vary a declaration by:
- specifying one or more conditions (or further condition) to which the declaration is subject; or
- revoking or varying a condition:
- specified in the instrument of declaration; or
- specified under paragraph (a).
(6) The Minister must revoke a declaration if he or she is satisfied that a condition of the declaration has been contravened.
(7) The Minister may revoke a declaration at any time.'
Wildlife Protection (Regulation of Exports and Imports) Regulations (the regulations) were enacted on 4 April 1984. These regulation have been revised on two occasion.
The regulations that came into effect on 20 December 1996 are the current regulations. Subregulation 5(1), made in pursuance of subsection 10(2) of the Act, provides as follows:
'5. (1) For the purposes of subsection 10(2) of the Act, the Minister must not declare a management program to be an approved management program unless he or she is satisfied:
- that there is available to the Designated Authority sufficient information concerning the biology and ecology of each species intended to be subject to the management program to enable the Designated Authority to evaluate a management program for that species; and
- in the case of a management program that is proposed to be carried out, is being carried out, or has been carried out in another country that the Designated Authority has received and considered information relating to the management program; and
- in the case of a management program that is proposed to be carried out, is being carried out, or has been carried out in Australia or in an external Territory that the Designated Authority has held discussions with all relevant bodies; and
- after receiving and considering advice from the Designated Authority that the management program contains measures to ensure that the taking in the wild, under that management program, of an affected specimen will be carried out so as to maintain the species or sub-species in a manner that is not likely to cause irreversible change to, or long-term deleterious effects on, the species or sub-species, or its habitat; and
- after receiving and considering advice from the Designated Authority that the management program provides for adequate periodic monitoring and assessment of the effects of taking specimens, under that management program, on the species or sub-species to which those specimens belong, their habitat and any other species or sub-species specified in writing by the Designated Authority as likely to be affected by that taking; and
- after receiving and considering advice from the Designated Authority that the management program provides for a response to changes in:
i) the population and habitats of the species subject to the program; and
ii) the knowledge and understanding of the biology and ecology of that or those species; and
- after receiving and considering advice from the Designated Authority that the management program is consistent with the object of the Act.
(2) In paragraph (1)c:
'relevant body', in relation to a management program, means a body having, under any law of the Commonwealth or a State or territory, powers or duties for the protection, conservation or management of animals or plants subject to the management program.'
It is noteworthy that the Minister can only fix the period for approval of a program as the period of operation set by the relevant management authority, or some shorter period.
Ministerial powers over approval and right of appeal to the Administrative Appeals Tribunal (AAT)
Right of appeal to the Administrative Appeals Tribunal (AAT) is covered by Section 78 of the WP(REI) Act, subject to the provisions of the Administrative Appeals Tribunal Act 1975.
The 1986 Administrative Appeals Tribunal (AAT) decision to set aside approval of the 1985 Queensland kangaroo management program was made because, in the Tribunals view, the program in operation in Queensland 'was not the management program which was being carried out in Queensland'. As the Tribunal stated, 'that being so, the Minister had no power to approve it, and his purported approval was ineffective'. Therefore, it is imperative that any approved program be the program that is actually carried out and that if any significant amendments are to be made to a program, they are incorporated in a replacement program which is submitted for approval.
State legislation and programs
Responsibility for wildlife conservation rests with the relevant State or Territory Governments through their fauna conservation authorities. Management of kangaroos at the State Government level have the following common elements.
Each State which permits commercial harvesting of kangaroos has in place a management program which includes provision for the reduction of harvests within a reasonable period of time.
Responsibility rests with the governments of the various States and their respective wildlife authorities to implement the provisions of their approved kangaroo management program if changed circumstances warrant it.
Changes in climatic conditions or hunting pressure may cause changes in population dynamics which could lead to increases or decreases at either the local or State level.
Provision exists within the kangaroo management program of each State to reduce or halt killing should circumstances make this necessary. There are a number of mechanisms available which vary depending on the legislation of the State. These are:
- restriction on the numbers and species of kangaroos permitted to be killed,
- restriction of the number of shooter permits issued,
- refusal to issue a new permit,
- implementation of size or weight limits on the harvest,
- control on time of take (through open season or harvest period declarations),
- controls on place of take (seasonal closure across the commercial zone or closure of local areas/districts at the property level by insisting on the approval and endorsement of the property owners before a shooter's licence is issued),
- control on number of dealer sites and location through legislation,
- monitoring and assessment of non-commercial take through licence returns.
Such provisions allow for a measured response to changing circumstances.
As legislation varies on a State by State basis the procedures in place in each State will be more closely examined.
Kangaroos in Queensland are classified as protected animals under the Nature Conservation Act 1992. The harvesting of 4 species of kangaroos is conducted in accordance with the Nature Conservation (Macropod Harvesting) Conservation Plan 1994. This subordinate legislation provides for the ecologically sustainable taking and use of macropods as a renewable resource.
The commercial harvesting of macropods is only permitted by licensed operators during declared harvest periods. Harvest periods are a legislative mechanism used to control commercial harvesting. Licenses can be issued for both commercial or recreational purposes. Damage mitigation permits may also be issued to landholders. All kangaroos taken under a commercial or recreational license in Queensland must be tagged using self-locking numbered plastic tags. Accurate reporting of the kangaroo take is a requirement of all license or permit holders.
Annual quotas specify the maximum number of each species that may be taken. These quotas are set conservatively and provide a safeguard against overharvesting.
The monitoring of kangaroos in Queensland is based on annual broadscale helicopter and ground surveys. Given the large size of the commercial harvest zone in Queensland, helicopter surveys are based on a sampling regime from representative areas. Information from these surveys and from the monitoring of harvest statistics (weight of carcasses, skin size and sex) is used as an indication of population trends. Trends are collated regularly for species on a grid square (half degree blocks), shire and biogeographic regional basis.
The Department of Environment can restrict or prevent harvesters from operating in specific properties, or shire areas. Queensland has also introduced size and weight limits to prevent overharvesting of small animals. In addition, the Minister for Environment may (in specified circumstances of high skin-only harvesting) assign 45% of the allocated quota for each of the three major species (red kangaroo; eastern grey kangaroo; wallaroo) to carcass harvesting.
Should the harvest for an individual species approach the quota, the harvest period can be closed across the State, ensuring quota overruns are avoided.
New South Wales
The New South Wales National Parks and Wildlife Service (NPWS) controls kangaroo harvests through the National Parks and Wildlife Act No. 80 (1974).
All kangaroos entering commercial trade must be legally taken in accordance with the National Parks and Wildlife Act of New South Wales. It is an offence to kill kangaroos or have them in possession without an appropriate licence.
Landholders are required to make application to the New South Wales NPWS for a licence to control kangaroos on their property. An occupier's licence is issued if on assessment or inspection, an authorised officer considers it warranted. The occupier's licence states the number and species of the kangaroos which may be killed on that property. When applying for the occupiers licence the landholder must nominate the name of the person they wish to shoot the kangaroos and if the kangaroos are to be culled for commercial or non-commercial purposes, the nominated shooter must be licensed under the Act also.
If a non-commercial licence is issued, an equivalent number of serially numbered cloth tags are allocated with the occupiers licence and the nominated shooter must attach them to the carcass in the field. If a commercial licence is issued coloured, serially numbered Royalty tags are allocated to the licence, they must be purchased by the landholder or the nominated shooter and attached to the skin or carcass.
Further licensing restrictions, including the provision of regular returns apply to shooters, processors and skin dealers for kangaroos that enter the commercial trade. Compliance is enforced through on-the-spot fines and regulatory legislation.
At the beginning of each calendar year the approved quota is divided into a notional quota for the whole year and a firm quota for the first 6 months then allocated out to the zone (District) Managers for subsequent allocation at property level.
In New South Wales, the number of royalty tags issued for commercial utilisation is controlled to ensure that the State's annual quota will not be exceeded.
Kangaroos and all native fauna in South Australia are protected under the National Parks and Wildlife Act 1972.
Under Section 53 of that Act, a permit is required to take any animal for damage mitigation purposes. Under provisions of the sealed tag regulations any kangaroo which enters the commercial trade must be tagged with a species specific tag and royalty must be paid.
The approved kangaroo management program for South Australia has as one of three stated aims: 'to be able to respond to changes in South Australia's physical or social environment in order that the conservation of each species is ensured.'
The South Australian Department of Environment and Natural Resources (SADENR) divide the State into commercial utilisation and restricted areas. The commercial utilisation area (CUA) is further divided into ten management zones based on biophysical characteristics each of which is independently managed .
The quota is released in stages, similar to the system operating in New South Wales so that management can respond to changes in climatic conditions throughout the year. In contrast to Queensland, New South Wales and Western Australia where tags are issued directly to the shooter, the SADENR issues tags to registered processing firms on the nomination of the landowner. The processor then passes the tags to shooters who are licensed to shoot on that property.
Population trends are monitored annually throughout the CUA. If climatic conditions or kangaroo populations appear to alter dramatically within a twelve month period, widespread surveys (ground or aerial) are used to re-assess population densities and the management strategy.
Regular monitoring through ground surveys and property inspections allow field staff to refine the release of the quota on a property basis.
Under the Western Australian Conservation and Land Management Act (1984), the Department of Conservation and Land Management (CALM) is responsible for administering the Wildlife Conservation Act (1950), which provides for the conservation and protection of all native flora and fauna in Western Australia.
Under the Wildlife Conservation Act and associated Regulations, CALM thus has the legal authority to control the taking of red kangaroos, western grey kangaroos and euros (wallaroos). Separate management programs are provided for each of these commercially harvested species.
Western Australia controls the harvest through the use of licenses for commercial and non-commercial taking or dealing, and through species specific tags, quotas and monitoring of harvest trends through the analysis of monthly shooter and dealer returns. Monitoring of kangaroo population levels is undertaken by triennial aerial surveys of the pastoral region of Western Australia.
Implementation of management procedures contained in the Western Australia kangaroo management programs is subject to review at any time in the light of prevailing circumstances. For example, the Minister is able to rescind or restrict all existing licences, to refuse to renew licences and to refuse to issue new licences.