>Mallesons Stephen Jaques Solicitors
>Confidential communication
>
>The lawyer in me wonders "what is a native animal"?
>
>Is it:
>one that breeds here?
>one that occurs here naturally, ie is not introduced?
>one that occurs here on a regular basis?
>
>I might look up sometime if it has ever been considered by a court. I
>doubt it. What about Kookaburras and Lyrebirds in Tasmania that are
>introduced? What about a relocated population of Noisy Scrubbirds?
>
>Murray Lord
>Solicitor
>Mallesons Stephen Jaques Sydney
>Direct line (61 2) 9296 2186
>Fax (61 2) 9296 3999
Good question Murray. More sport for you legal people.
Perhaps a pointer to interpreting "native animal" for the purposes of that
Regulation may be found in the interpretation part of the _Nature
Conservation Act 1992_ under which the Reg was made.
Section 7 says "in this Act -
"animal" means any member of the animal kingdom (other than human),(whether
alive or dead) and includes -
(any amphibian, bird, coral, fish, invertebrate, mammal,or reptile)
and the whole or any part of the progeny, larvae, pupae, eggs or genetic or
reproductive material of an animal and the carcass or another part of an
animal.
and also -
"native wildlife" means any taxon or species of wildlife indigenous to
Australia.
and -
"indigenous to Australia" in relation to wildlife, means - (a) wildlife
that was not originally introduced to Australia by human intervention
(other than wildlife introduced before the year 1600); or (b) a migratory
animal that periodically or occasionally migrates to, or visits Australia."
and -
"wildlife" means ...
but this is getting out of hand. Let's pause there. And why all these
complexities, you ask? (Or I hope you do.) Because of past experience of
smart lawyers who gained acquittals for their clients on fine technical
points, such as the bloke illegally collecting native birds' eggs. The law
said it was an offence to be in possession of native birds' eggs, but of
course what he had was egg-shells. And egg-shells aint eggs! Acquitted ...
and another amendment to be made to the Act.
It reminds me of a description of the operation of the law,that I read in a
British science journal some 30 or 40 years ago. Wish I had a copy to
quote but it went something like this -
One set of lawyers endeavours to frame the rules that society requires in
terms that are clear and unambiguous; a second set spend their lives (and
their clients cash) trying to subvert the meaning of the words of the first
group; while yet a third group, curiously costumed, act as referees between
sets one and two.
You're the lawyer. You tell me, but in the absence of a definition of
"native animal", would it be reasonable to say that for the purposes of the
subject regulation, a native animal is any "animal" as defined, that is
"indigenous to Australia", as defined?
Anyway, the regulation I quoted only applies to Queensland situations, so
one doesn't have to worry about lyrebirds in Tasmania or relocated Noisy
Scrubbirds.
But now that I look at it again, that Blue Rock-thrush is a migratory
"animal" that is "visiting Australia". Twitchers, keep an eye out for the
Ranger if you intend to use playback on it.
Cheers
Syd
H Syd Curtis
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