Environment Protection and Biodiversity Conservation Regulations 2000  (EPBC Act) 

http://www.environment.gov.au/biodiversity/trade-use/publications/pubs/compliance-guide.pdf

http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401027?OpenDocument

Following is the submission to the Review of the EPBC Act by the AFA written in 2009, concentrate of item 3(d) in the Terms of Reference (TOR). the reply written by AFA (Avicultural Federation of Australia)

Secretariat 
Independent review of the EPBC Act 1999 

The Avicultural Federation of Australia Inc. (AFA) is recognised as the peak body representing aviculture in Australia.  

This submission to the Review of the EPBC Act by the AFA will, in the main, concentrate of item 3(d) in the Terms of Reference (TOR). It may touch on the parts of the Act mentioned in other criterion; there may be general comment which will come from the general use of the Act and its interaction with the Australian bird keeping community.  

The Act with its latest amendments (2007) would appear to set up the Department of Environment Water Heritage and Arts (DEWHA) to meet its obligations with the various international processes to which it, on behalf of the Australia Government, is a signatory. These amendments certainly create the machinery sections and appear give ‘teeth’ to those parts of the Act where procedures and compliance are required. 

It is in the compliance area that hobbyist bird keepers are likely to come across problems as they see them; there are areas of uncertainty in the record keeping process as it relates to exotic birds.  Currently such record keeping is not required and is only ’suggested’ as a form of providing a provenance trail for birds in the possession of hobbyists and commercial operators alike.  This is where the AFA will comment in relation to item 3 (d) in the TOR 

      3(d) the Australian Government’s deregulation agenda to reduce and simplify the  regulatory burden on people, businesses and organisations, while maintaining  appropriate and efficient environmental standards;  

If the DEWHA were to institute a system to lessen the burden on the keepers of exotic birds, then it would do away with the need to do any record keeping. This would be a good use of ‘deregulation’. It would also ’simplify’ regulatory burden. No record keeping, no burden. But it is doubtful that this will ever be the case. So in the light of this particular Term of Reference 3 (d) only the ‘regulatory burden’ will be covered. 

Since 2005-2006 DEWHA has held discussions with various factions within the bird keeping community which  resulted in the formation of an advisory body, the Exotic Bird Advisory Group (EBAG). EBAG met in a consultative process over an extended period and developed processes which may be seen to allow the recording of exotic birds in Australia.   

From DEWHA’s perspective what resulted was a well thought out and accepted method of keeping and maintaining records of species of exotic birds held in aviaries throughout Australia. The problems with the supposed outcome of the decision, made after deliberations of the Exotic Bird Advisory Group (EBAG), is that the outcome is NOT being accepted by bird keepers and there are myriads of bird keepers who are not aware of them to the extent to which the Department claims they are.  This in itself contravened a term of reference for the EBAG process.  If one were to have any doubts  in relation to this statement, then a few phone call by independent person to almost any  owner of an exotic bird would prove that very few are aware of the current ‘voluntary procedure’ of record keeping, and even less would be aware of what birds are involved, and at what level of record keeping.   

BACKGROUND.   

It is not possible to make a submission on this Act’s review without referring to the historical matters which have preceded the current proposition and where they are now.

We need to go no further back than the National Exotic Bird Registration, which began in 1996, and ended in 2002.  It was a compulsory system to audit, record and collate all the exotic birds in the country. It was at best a scheme well conceived but poorly executed.    It failed to live up to it’s promise for many reason, chief among these were:

•   a working plan that failed to gain acceptance envisaged by the designers of the scheme;
•   a low take up rate of the scheme – with low figures came a low economic return, in fact some
•     30 times lower than projected figures;
•   a program and process which was due to bring into focus many facets of keeping exotic birds
•     in Australia, failed to live up to expectations;
•   a system which did not identify specific birds only specific species;
•   poor communications between the relevant department and bird keepers, both commercial and private;
• a lack of coherent support staff.

The numbers of participants, which were expected to be in the many, many thousands, failed to materialise, and in the end only some three thousand bird keepers became involved.  The continuation of the NEBRS scheme was later seen to be an unsustainable and an economic nightmare and so it was dropped in 2002. 

During the existence of NEBRS certain records were collected and a part audit of exotic species was considered to have been gained. However, in hindsight those numbers and the species recorded are now suspect as there were few checks carried out to ascertain the veracity or accuracy of the information supplied by those taking part.   

It would now appear that there were species nominated which were not at the time in the country, other species which were in the country were wrongly identified, and other species which were never recorded even though they were known to have been in the country for many years if not decades.  

In October 2001  the Environment Minister, Senator Robert Hill sounded the death knell of the scheme when he explained the scheme was not “…successful and not an effective use of resources…”.  In a undated letter from Environment Australia, which was sent to those aviculturists ‘registered’ under the NEBRS scheme, it was pointed out “…the Commonwealth considers that continued maintenance of a Register of individual holdings is not necessary and that State Governments are generally responsible for the holding and keeping of exotic birds and other animals already in the  country.” In these few words the Commonwealth washed its hands of any responsibility of any exotic bird or animal ALREADY in the country and devolved that responsibility to the several States and Territories.  
 
It was thought then by the responsible Department that the States and Territories would pick up from where the Commonwealth had left off, but most did not. The exception to these being Queensland and Western Australia who regulated exotic bird species by by amendments to various pieces of state legislation. Queensland added the exotic species to their Domestic Animals List so these birds could be freely traded without restrictions.   

And due to a lack of legislation, bird keepers were not required to keep or maintain any records of their possession of their exotic birds. 

On the 11^th of January 2002 new Commonwealth legislation namely the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 passed by Parliament in June 2001, brought a formal end to the NEBRS scheme.  

So  in a nutshell the Department abrogated its responsibilities for the recording of ‘exotic’ species, but in reality it had just dropped the ball, for as time passed it was realised that it did have responsibilities in relation to exotic birds due to being a signatory to various charters relating to wildlife. 

The year 2005 saw the beginnings of a process to bring about yet another regime of record keeping in an effort to re-gather to ball, so to speak. In 2006 meetings were held and ‘public consultations’ carried out.  

This was another attempt to gauge the number of exotic birds in this country, and if there was one thing which became absolutely clear and that was that the DEWHA had absolutely no idea how many exotics were in the country, and any information that they did hold was now 4  or more years old.  This lack of knowledge made it impossible for DEWHA to set any target for compliance, or any way of knowing what the compliance rate might be.  During this same 4 year period no one was required to maintain or keep records of any exotic bird specie in their possession.  During the 4 plus years between the NEBRS scheme ending and the ‘new’ scheme being implemented, no one could even hazard a guess as to how many thousands of birds had been bred, changed hands and even changed geographic locations. No records were required at the federal level, especially under he EPBC Act 1999, none whatsoever.  No permits or authorisations were needed or required.  These points will need to be remembered later. 

In its latest incarnation DEWHA has never accepted that records which were not required to be kept were not, in fact,  kept. Their attitude was expressed an many occasions as  ‘…it would have been good idea to keep records and surely they must have’. How many people would register their motor vehicles if to do so was just ‘a good idea’, as there would be no legal requirement to do it. 

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