26/04/2017
Animal Law Week 2017 ANIMAL DEFENDERS OFFICE
Animal Law Week 2017
1 26/04/2017
Animal Law Week 2017 LICENCE TO KILL: HOW NEW WILDLIFE LAWS THREATEN ANIMALS AND DEMOCRACY
Animals and the law
IN LAW, ANIMALS ARE PROPERTY WHAT ABOUT WILDLIFE?
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Wild animals and the law
ARE WILD ANIMALS PROPERTY? PROPERTY… OF WHOM?
•Yanner v Eaton (1999) 201 CLR 351 ◦ QLD Government claimed ownership of wildlife
◦ HCA: no-one can ‘own’ free-living wildlife
Wild animals and the law
• High Court of Australia: ‘power to preserve and regulate the exploitation of an important resource’
Yanner v Eaton at 369
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Wild animals and the law
Administrative law
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Administrative law
• Challenge government decisions ◦Keeping governments accountable
• Tribunals (not Courts)
Wild animals and the law
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Challenges to ACT Govt kangaroo kills
‘…appeals against conservation culling licences were lodged in the ACT Civil and Administrative Tribunal in 2009, 2012, 2013 and 2014 but were unsuccessful.’
(page 4)
Challenges to ACT Govt kangaroo kills
• Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17
• AT 13/41 Australian Society for Kangaroos, Inc v Conservator of Flora and Fauna [2013] (unreported)
• Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35
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Challenges to ACT Govt kangaroo kills ‘…whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application.’
John Morgan and Construction Occupations Registrar (Occupational Discipline) [2011] ACAT 18 [emphasis added]
Challenges to ACT Govt kangaroo kills • Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 9 ◦ Standing: ▪ Animal rights group can be affected by decision to grant licence to kill kangaroos ▪ Group did not have to be from the ACT
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Challenges to ACT Govt kangaroo kills • AT 13/41 Australian Society for Kangaroos, Inc v Conservator of Flora and Fauna [2013] (ACAT; unreported) ◦ Numbers to be killed reduced by Tribunal ◦ Concerns raised by Tribunal re Government’s ‘expert’ witness
Challenges to ACT Govt kangaroo kills • Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35 ◦ Tribunal agreed animal welfare was a relevant consideration
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Challenges to ACT Govt kangaroo kills • Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35 ◦ Tribunal agreed hundreds of at-foot joeys were ‘unintended mortality’ of the culls ▪The ‘ghost population’ of young victims not counted in cull numbers
Nature Conservation Act 1980 (ACT) • Legislation covering culls between 2009-2014
• Licensing regime
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Nature Conservation Act 1980 (ACT) 44 Killing native animals (1) A person shall not, except in accordance with a licence, kill a native animal. […] 103 Application An application for a licence must be given to the conservator. […] 104 Grant of licence (1) On application under section 103, the conservator shall, in accordance with section 106— (a) grant a licence; or (b) refuse to grant a licence. […] 106 Licensing criteria (1) The conservator shall not grant a licence, or impose or vary a licence condition, except in accordance with the criteria determined under subsection (2). […]
Nature Conservation Act 1980 (ACT)
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Nature Conservation Act 1980 (ACT)
… Animal Liberation today mourned the loss of the kangaroos culled this year by holding a memorial outside the ACT Legislative Assembly. … The Government is considering extending the cull licence to last five years, to prevent annual court challenges.
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Nature Conservation Act 1980 (ACT)
Nature Conservation Act 2014 (ACT)
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Nature Conservation Act 2014 (ACT)
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Declaration—Explanatory Statement
“The Minister is satisfied that the species is having an unacceptable environmental and economic impact in the ACT.” (page 2)
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Declaration—Explanatory Statement
“The significant impacts from high density populations of Eastern Grey Kangaroos require management of this species on an ongoing basis to reduce impacts to an acceptable level.” (page 2)
“Controlled Native Species” • Consequences for the animals
• Consequences for our civil and political rights
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Nature Conservation Act 2014 (ACT)
Nature Conservation Act 2014 (ACT) • Draft CNS management plans—public consultation (s162) ◦ Public consultation period must be at least 6 weeks [42 days] (s162(2)(a)(ii)) ▪ EGK plan out for 43 days ▪ ADO’s invitation to submit received 4 weeks before due date ◦ No late submissions accepted (ss162(2)(a)(ii) and (4)(b)) ◦ Conservator can bypass public consultation in an ‘emergency’ (s164)
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Nature Conservation Act 2014 (ACT)
Nature Conservation Act 2014 (ACT)
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Nature Conservation Act 2014 (ACT)
Eastern Grey Kangaroo Draft Controlled Native Species Management Plan
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Nature Conservation Act 2014 (ACT) • Finalised plan must be implemented: ◦ Conservator (nature reserves) ◦ ‘Custodian of the land’ ie Head of Parks and Conservation (public/unleased land)
•What does ‘implementation’ mean?...
Implementation of plan
• EGKs can be killed! ◦ But only when plan is finalised and implemented
• How is the killing permitted?
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Nature Conservation Act 2014 (ACT)
Nature Conservation Act 2014 (ACT)
• Licences no longer required • Replaced by ‘authorisations’ • What are they and how will they work? ◦ Section 167(3): They must be in writing and state—
▪ Who
▪ What action
▪ Conditions
▪ Period of time in force
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Nature Conservation Act 2014 (ACT)
KILLING EGKs UNDER NCA 2014 KILLING EGKs UNDER NCA 1980
• No reviewable decision • Reviewable licence process
• Legislation silent re: ◦ Requirement to notify affected entities ◦ ‘Authorisation’ process ◦ Option to seek statement of reasons ▪ Nothing in Nature Conservation Regulation 2015 ◦ Option to seek merits review ◦ Role of indigenous people in decision- • Indigenous people limited recognition in making process statutory licensing criteria
ALACT Media Release
21 26/04/2017
ADO Media Release “So the once fundamental right to seek review of the decision to kill kangaroos in ACT’s nature reserves has been swept away by a single minister’s declaration—a declaration that became law with no parliamentary scrutiny or public consultation.
From now on, the Government can decide when and how it will kill kangaroos on public land without being accountable to the public.”
Human rights compromised • Human Rights Act 2004 (ACT): everyone has the right to have obligations recognised by law ‘decided by a competent, independent and impartial court or tribunal after a fair and public hearing’ ◦ Courts: this extends to public law (not just private rights)
• ADO: ‘Fundamental principle of our democratic society that decision-makers must be accountable for the decisions they make.’
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ADO Media Release ‘To remove mechanisms in place to test the merits of government decisions is extremely anti-democratic. There is no justification to remove such a fundamental right in this context.
The proper and humane treatment of our native wildlife is, and always has been, a matter of significant public interest, and the merits of a government’s decision to kill wildlife must be able to be tested by an “impartial tribunal” in a “fair and public hearing”.’
…
23 26/04/2017
ADO submission re draft EGK plan
‘Now more than ever the Government’s decisions to kill Eastern Grey Kangaroos on public land should be open to public scrutiny.’
Possible challenges • Challenging the approval of kangaroo management plans: Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts [2008] AATA 717 • Challenged on welfare grounds ◦ Shooting kangaroos can be inhumane • Lost: Plan required shooters to comply with national shooting Code of Practice
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NSW: National Parks and Wildlife Act 1974 • Up until now: ◦ Offence to harm wildlife except with licence ◦ Commercial kangaroo killing—licence required at every step ▪ Landholders (‘Occupier’s licence’) ▪ Shooters (‘Harvester’s licence’) ▪ Processors (‘Fauna Dealer’s licence’) ▪ Skin Dealers
NSW: National Parks and Wildlife Act 1974 NSW licensing regime
Key monitoring mechanism: each licensee required to submit returns
Harvester: monthly (for each occupier on whose land they shoot)
Fauna dealer, skin dealer: monthly
Chiller premises: weekly
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New regulatory regime in NSW •Biodiversity Conservation Bill 2016 (NSW) ◦ Draft code of practice for commercial kangaroo harvesting in NSW
New regulatory regime in NSW •Biodiversity Conservation Bill 2016 (NSW) ◦ ‘Risk based’ approach to regulating wildlife ▪‘Low’ risk v ‘high’ risk activities
▪‘Low’ risk activities that harm wildlife: no licence required
▪Who determines the level of risk?
▪According to what criteria?
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New regulatory regime in NSW •Biodiversity Conservation Bill 2016 (NSW) ◦ ‘Risk based’ approach to regulating wildlife ▪The Department (OEH) decides level of risk ▪‘Risk’ = likely impact of activity on: ◦ Populations of native animals ◦ Animal welfare ◦ Human health and safety
New regulatory regime in NSW •Biodiversity Conservation Bill 2016 (NSW) ◦ ‘Risk based’ approach to regulating wildlife ▪The Department (OEH) has decided commercial shooting of kangaroos is… a ‘lower risk’ activity ie unlikely: ◦ to harm wildlife populations ◦ to have negative impact on animal welfare ▪ So no licence required
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New regulatory regime in NSW •Biodiversity Conservation Bill 2016 (NSW) ◦ ‘Risk based’ approach to regulating wildlife ▪ New codes of practice for ‘low risk’ wildlife killing
▪ First draft code?
◦ Commercial ‘harvest’ [= shooting] of kangaroos…
ADO submission ‘By drafting a code of practice for the commercial killing of kangaroos, the government has already determined that commercial kangaroo shooting is ‘unlikely to harm wildlife populations or impact on animal welfare’. This assessment should not be accepted as both kangaroo populations and animal welfare are at significant risk from the kangaroo industry.’
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ADO submission ‘…the only sectors that would benefit from any deregulation of the commercial kangaroo killing industry would be the industry and the administrators of the regulatory scheme. The kangaroos, and those in our community who want a high level of animal care and to have confidence that native animals are not harmed, lose out.’
ADO submission ‘…killing kangaroos is a high risk activity both for the kangaroos and the Australian community. The kangaroo is an iconic animal with special cultural significance to indigenous and non-indigenous Australians. It is also an animal much loved by the international community, which means there is significant scrutiny of how we treat these unique native animals.’
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New regulatory regime in NSW
•Biodiversity Conservation Act 2016 (NSW)
◦Passed 23 November 2016
◦Yet to commence…
◦No regulations (with codes of practice)
Conclusion: consequences • Demise of licences
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Conclusion: consequences • Any ‘nuisance’ wildlife species at risk • Much harder to challenge what a single bureaucrat or politician decides about these species behind closed doors • Tell our lawmakers it’s undemocratic and unacceptable!
Contact
Please note: This presentation is for general information purposes and is not legal advice. It provides a brief overview only of this area of the law. If you require legal advice relating to your particular circumstances, you should contact a solicitor.
Animal Defenders Office Griffin Centre Mobile: 0428 416 857 20 Genge Street Email: [email protected] Canberra ACT 2602 Website: www.ado.org.au
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