Tim Murphy wrote:
> From: "Tim Murphy" <>
> Date: Fri, 23 May 2003 05:26:02 +0800
> To: <>
> Subject: RE: [BIRDING-AUS] Take of birds (Vict.)
>
> Is it illegal to find it, shove in fridge overnight and give to a museum the
> next day (or soon). Sound pretty stupid if so - but that could be said of a
> lot of laws.
>
> Quite a few specimens I have found are in museum collections now.
>
> Best regards
>
> Tim Murphy
>
A decade or two ago I read somewhere, a delightful description of the
British legal system - which we in Oz inherited. It went something like
this:
There is a set of legal experts who attempts to write the laws society
wants, in such clear and unambiguous terms that there can be no doubt as to
their meaning. A second set, for their clients' benefit (and their own
pecuniary gain) seek to cast doubt on the meaning. Yet a third group,
peculiarly gowned and wigged, adjudicate between sets one and two.
Imagine a section of an Act which reads:
"33. It is an offence to be in possession of a protected bird, whether
dead or alive, except in accordance with a written permit granted under this
Act."
Clear and unambiguous isn't it? A wildlife officer finds a person out in
the bush with a native parrot caged but obviously wild (not aviary-bred).
No permit. No ifs or buts. He has committed an offence and if prosecuted
is sure to be convicted. Right?
But consider another case. The officer finds a person with a portable
fridge in which there are several native duck carcases. There's no current
open season. He has no permit. The officer seizes the ducks as evidence,
and prosecution ensues.
Defendant pleads 'not guilty' and his defending lawyer points out that the
carcasses seized have no heads or feathers. Clearly they are not birds.
Case dismissed. A bit far-fetched? Maybe. Maybe not.
Years ago the Queensland Fauna Conservation Act made it an offence to be in
possession of an egg of a protected bird. In an actual case a person was
prosecuted for having a collection of eggs of native birds, and no permit.
But of course what he had, was a collection of 'blown' egg-shells from which
the egg-contents had been removed. His lawyer successfully argued that an
egg-shell is not an egg. He was acquitte.
In due course the law was amended to read " ... possession of an egg or any
part thereof" - or words to that effect.
That is the sort of event that causes our laws to become so complicated.
"A policeman's lot is not a happy one," wrote W. S. Gilbert. And a wildlife
officer's lot is not an easy one!
Have a law of total prohibition of possession, with no exceptions, and
prosecution of a serious offender found 'in passession' is relatively
straight-forward. Make any exception to that total prohibition and you've
created a possible loophole for Set 2 of our legal experts to exploit.
Syd Curtis
Birding-Aus is on the Web at
www.shc.melb.catholic.edu.au/home/birding/index.html
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