I think there has been no official confirmation from the Queensland Parks
and Wildlife Service that it is technically a breach of the Nature
Conservation Act in Queensland to be in possession of feathers of a native
Australian bird without authority under the Act. So I'll stick my neck out
(as an ex- QNPWS officer) and say that it is.
But my main aim in adding to the discussion is to offer some explanation as
to how such apparently needless and complex laws come about.
The Queensland Act makes it an offence to be in possession of a protected
animal unless authorised under the Act. The definition of "animal" includes
any bird. A "protected animal" means any animal prescribed under the Act as
threatened, rare or common wildlife. "Wildlife" means any taxon or species
of an animal, plant, protista, procaryote or virus. (Still with me? Get
the feeling that laws are written by lawyers for lawyers? You'd be right!)
Now one important point that is easily overlooked, is that under the Nature
Conservation (Wildlife) Regulation, "a bird indigenous to Australia (other
than a presumed extinct, endangered, vulnerable or rare bird) is a common
bird". It may be recalled that some confusion arose in connection with the
vexed question of the permit that allowed the killing of some bowerbirds,
when certain species were referred to as "common" in this legal sense, when
they were not common in the general sense of being plentiful and widely
distributed.
So why all these complexities? They arise because of our adversarial legal
system. A prosecuting lawyer presents evidence in the manner best
calculated to prove the offence. The defence lawyer seeks to upset the
evidence - or to find a technical loop-hole in the legislation. Let me give
you an actual example from my experience in the Queensland Service.
A person was found to be collecting birds' eggs. The eggs of course were
'blown' - small holes drilled in each end, the contents removed and
discarded, and the shells retained. The collection was seized and he was
prosecuted under the Fauna Conservation Act (this was before the Nature
Conservation Act replaced it) which made it an offence to be in possession
of fauna without authority. Fauna was defined as including native birds and
the eggs of native birds. The defence lawyer argued successfully that an
egg-shell is not an egg. Case dismissed.
It is easy to see why it is necessary to have the law written in the way it
is with respect to "common" birds. Try to list protected species by name
and the possibility immediately arises of argument about the taxonomy. So,
list the endangered species by name and make all others "common", then if a
defence lawyer claims a particular bird is not the species the Service
claims it to be, then by default it is protected as a "common" bird.
Now, the question of feathers. It is clearly necessary to have a law which
makes it an offence to shoot a lyrebird or an egret to get their feathers.
Subscribers to birding-aus wouldn't do this, but there are those who would.
If a conservation officer finds a person carrying a firearm and with egret
feathers in a bag, it would be a reasonable assumption that the person had
shot one or more egrets, and prosecution would ensue. If the person had
some innocent and convincing explanation for being in possession of the
feathers, the matter might not even get to court. If it did, the defence
lawyer could seek to raise doubts in the Magistrate's mind as to the
offence.
Feathers from road-kills. I see this situation as being equivalent to a
car-driver swerving onto a footpath to avoid a pedestrian on the road. It
is, and must be, an offence to drive on the footpath, but no-one would
consider prosecuting for that offence in those circumstances. I don't know
about other States, but I'm quite sure that no Queensland conservation
officer is so short of work that she would bother about a person who picks
up some feathers from a road kill - or who takes a road-kill to a State
museum, though in the latter case it would be more prudent to take the
specimen to the nearest wildlife office - or if there are none locally, then
to the nearest police station, and there discuss getting it to the museum.
But maintaining a collection of feathers is another matter. The question
may arise as to whether the collector may be tempted to kill a bird to get
some feathers. Then the conservation service may need to investigate. Any
person wishing to maintain a collection of feathers should seek the
necessary authorisation. And this may not, for obvious reasons, be readily
forthcoming.
It may be pertinent to add, in case anyone is not aware of this, that the
Act allows anyone to take into their care any sick or injured animal
(including, of course, birds) provided they report this to a conservation
officer within 24 hours and comply with any instructions relating to it.
Syd Curtis in Brisbane.
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