The Department would not and will not accept that the majority of the owners of exotic birds as hobbyists did not and do not keep records of birds when there is no legal requirement to do so.
Without doubt there would be some hobbyists and commercial entities keeping records for various purposes, and breeders who keep stud records. But it is suggested these will be low in number.
So for 4 plus years and beyond NO records were required to be kept, and even as this submission is being written, there are no legal requirements for any person under the EPBC Act to keep records of the possession of exotic specie in their possession. And this then, brings about a serious problems for bird keepers. Records were not kept, the numbers of birds were unknown, and even the species were, at best, guess work. But DEWHA officers ‘expect’ bird keepers to be able to provide them with records which show the legal provenance of the birds in their possession. In some cases they were expected to show provenance back to and perhaps back further than the introduction of the
NEBRS scheme.
This is an absolutely outrageous situation, which would be truly farcical if it were not so legally dangerous for bird keepers who are being faced with a reversed onus of proof.
The introduction of the provision within the Act of a section which used the Reverse Onus of Proof
had the immediate effect of making many thousands of exotic animals previously accepted by the the Australian National Conservation Agency (ANCA) as not only being present in Australia but in such bountiful numbers so as NOT to be included in the NEBRS for logistical reasons. This then created the anomaly that animals previously ignored by ANCA and NEBRS, as mentioned below, were now, effectively illegally held. (Both the Department and Aviculture recognised during the course of may meetings with the Exotic Bird Committee that there were many of these species present in the country, extending back many, many decades and thus prior to legislation in this area)
As said before there was a scheme, NEBRS,which drew to a close in 2002, and now there is a Departmental expectation that a workable scheme is in place. However in the intervening years, since 2002 possibly many thousands of birds have been bred and there are no known records in existence for many of those birds; these are the so called ‘black hole birds’. They exist but their existence is almost impossible to prove using a purely legal approach. Many thousands of people have bought exotic birds so common in this country that many think they are native species, birds such as the Peach faced love bird, the Indian Ring Necked parrot, the Monk parrot, a many species of Conures; various small birds such as Finches, canaries etc. all exotics and all which can have their possession questioned.
The onus of proof to show that the bird you have in your possession is both a legal species and that you came by it legally rests upon the person in whose possession the animal is found.
This seems all well and good except there is no cut and dried policy about what paperwork, what receipts will be accepted by officers as being enough to prove legality. Too many times have these words been heard from Departmental representatives… ‘ we will let the courts sort that out”
To date no defended case, of which we are aware, has ever reached a point in proceedings where a court of competent jurisdiction has made that decision.
Many ask the question, why is it these cases never get to be brought to a conclusion at court?
Why is it in the latest seizures, in which court action has been commenced, have the alleged
offender/s forfeited their birds, again before a decision as to innocence or guilt has been handed down at court? So as it currently stands the section 303 GN of the Environment Protection and Biodiversity Conservation Act 1999 has not been fully tested and it would seem the Department is not anxious that this should be done.
Aviculturists, whom we represent, ask could it be that the DEWHA uses all legal means at their disposal disposal to ensure the matter drags out; that the court locations are changed; that the matters are adjourned incessantly, for ‘further investigation’ and the alleged offender can no longer afford to continue in their own defence and at that point forfeits the animals, the subject of the seizure notice. Our last information, although anecdotal, is that one such alleged offender was told by his senior legal representative that to pursue his claim of innocence could cost a sum in the vicinity of a quarter of a million dollars. This puts the cost of ‘justice’ clearly well beyond the average citizen’s abiity to mount or sustain a defence to an alleged offence.
How can an ordinary Australian fight to prove their innocence when the Department ensures that the matters are sent to District, or Quarter Sessions Courts for hearing. The costs in these courts are high as representations must be by legal representative better qualified than your local solicitor. If this be true, then so much for justice.
As it stands no one in the wider bird keeping community has any idea what records will be accepted by DEHWA investigators as showing legitimate possession of animals. And this is a poor state of affairs for each Australian citizen, who in most other jurisdictions, has a situation where the prosecution must prove the both physical and fault elements of an offence but here the possessor must prove they are not acting in an illegal manner.
So the assertion broadly put is,… ‘you are guilty, prove you are not. But we can’t or wont tell what proofs will be accepted to convince us of your innocence’
Some records were required up until the demise of the NEBRS scheme; the current Act does not require them.
On 6 July 2006 the AFA wrote to [name omitted], then First Assistant Secretary, Approval and Wildlife Division, Department of the Environment and Heritage with a series of questions, one which related to record keeping was as follows:
“…in order that we may better advise our affiliates of their ‘obligations’ can we be advised
if there exists ANY legislatively based obligation or requirement within the provisions of
the EPBC Act 1999, for aviculturists to maintain ANY form of official record…”
On the 17 July 2006 [the Department] replied, and in answer to the question above gave the following answer:
Department’s Response:
There is no legal requirement to maintain any particular form of official record. It is, however, an offence under section 303GN of the EPBC Act to possess certain exotic specimens unless that are lawfully held. The onus….etc.’
This letter bears the reference number 2006/8630
So it can be seen that ……………. then DEH confirmed that records were not required to be kept.
This Association encourages the practice of maintaining receipts containing information of the seller and the background to the animal being purchased. But a receipt given 5 years ago, even 10 years or even 10 minutes ago is just that, a 5 or 10 year old or recent receipt. It has not given any specific legal standing to the animal nominated in the receipt, in fact the only thing that is legal is the receipt itself. Hopefully.
Mentioned at a stake holders meeting of EBAG was a suggestion that a system, such as that required to open a bank account, or obtain a passport, be considered for introduction by the Department.
If such a scheme using say a 100 point criteria, in which certain receipts, photographic identification, log book entries, animal identification media and the like were counted towards a target which, when looked at in its entirety, would reduce the current burden placed on bird keepers to provide proof of provenance and make that proving of such provenance based on the lesser civil proof of ‘on the balance of probabilities’ rather that as it is at present using the criminal proof of ‘beyond reasonable doubt’.
Such a system would undoubtedly assist in the investigation of alleged breaches of the Act, and perhaps streamline the apparently cumbersome investigatory processes.
CONCLUSIONS.
The illegal possession of any bird is as unacceptable to the AFA as it is to most other people; the AFA does not condone any such action. But it does take a view that due to the failures of various Departmental schemes over the years, many bird keeping hobbyists are left without the means to
adequately identify a bird as legal. In effect they are now legally obliged to remedy problems not of their doing.
Under the NEBRS scheme a particular bird was not recorded, only its species. So now hobbyists are being asked to provide information about a particular bird, when at best all they can say is that the particular species was recorded in NEBRS, nothing more.
The public deserves clarity when it comes to matters where the onus to prove their innocence rest upon themselves and they are not being assisted by the ambiguous attitudes of the responsible department and its officers.
RECOMMENDATIONS
There needs to be a clearly spelled out internal policy, publicly promulgated, setting out what is and what is not acceptable to DEWHA investigators in proving legal possession. No longer should investigators say they will rely on the courts to decide matters such as whether a receipt is a ‘good one’.
Further recommended is the introduction of a graded point score system in which certain criterion will gain points, and a certain number of points will go to and be acceptable in the effort to prove legal provenance;
Take positive steps to increase awareness with both the bird keepers and the public sectors generally of the current arrangements and the implications for the future;
Develop new arrangements which recognise the particular and peculiar situation in which
the owners of exotic birds find themselves as a result of the latest set of Departmental
initiatives brought about, as suggested, by a policy failure within the Department itself and the realisation that there were in fact areas within the EPBC Act requiring Departmental scrutiny particularly those areas arising from the various conventions to which Australia has accepted a role.
IN CLOSING
Owing to the short time presented for the submission of reports to this Review this submission can only be at best an interim one. Details are still coming in from AFA state and territorial affiliates. Further deliberations will include, among other things, observations relating to the DEWHA Compliance and Enforcement Policy.
The AFA asks that other submissions made on behalf of the bird keeping hobbyist of Australia will be accepted at a later date and taken into account during the overall deliberations of the Review.
Further that the AFA be placed on the Review panel’s mailing list and any ongoing communications
in relation to this Review, especially any interim reports be forwarded to the AFA.
Prepared for and on behalf of the
Avicultural Federation of Australia Inc.
Gary S Brown JP (Qual)
Executive Director
Avicultural Federation of Australia Inc.
PO Box 93, West Burleigh Queensland 4219
28 January 2009
