Flying fox conservation laws, policies and practices in Australia - a case study in conserving unpopular species

Australasian Journal of Natural Resources Law and Policy

Volumn 13, Issue 2, 2010, Pages 161-195

  Dominique, Thiriet ^a  

^a JAMES COOK UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ANIMALIA; PTEROPODIDAE;

EID: 80051811524     PISSN: 13205323     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (365)

1. Jeff Short and Andrew Smith, 'Mammal Decline and Recovery in Australia' (1994) 75 Journal of Mammalogy 288.
2. Chris Johnson, Australia's Mammal Extinctions - A 50,000 Year History (2006).
3. See also R J S (Bob) Beeton et al, State of the Environment Report. Independent Report to the Australian Government Minister for the Environment and Heritage (2006), ch 5.
4. Department of the Environment, Heritage, Water and the Arts, EPBC Act List of Threatened Fauna (2008) at 27 August2009.
5. Environment Protection and Biodiversity Conservation Act 1999 (Cth).
6. Nature Conservation Act 1990 (ACT).
7. National Parks and Wildlife Act 1974 (NSW).
8. Threatened Species Conservation Act 1995 (NSW).
9. Territory Parks and Wildlife Conservation Act 1980 (NT).
10. Nature Conservation Act 1992 (Qld).
11. National Parks and Wildlife Act 1972 (SA).
12. Threatened Species Protection Act 1995 (Tas).
13. Wildlife Act 1975 (Vic).
14. Flora and Fauna Guarantee Act 1988 (Vic).
15. Wildlife Conservation Act 1950 (WA).
16. See for instance Shelley Lachish, Menna Jones and Hamish McCallum, 'The Impact of Disease on the Survival and Population Growth Rate of the Tasmanian Devil' (2007) 76(5) Journal of Animal Ecology 926.
17. Christopher Kofron and Angela Chapman, 'Causes of Mortality to the Endangered Southern Cassowary Casuarius Casuarius Johnsonii in Queensland, Australia' (2006) 12(3) Pacific Conservation Biology 175.
18. Francine Madden, 'The Growing Conflict Between Humans and Wildlife: Law and Policy as Contributing and Mitigating Factors' (2008) 11 Journal of International Wildlife Law and Policy 189.
19. Leslie Hall and Greg Richards, Flying Foxes - Fruit and Blossoms Bats of Australia (2000), ch 8.
20. Marty Fujita and Merlin Tuttle, 'Flying Foxes (Chiroptera; Pteropodidae): Threatened Animals of Key Ecological and Economic Importance' (1991) 5 Conservation Biology 455.
21. Lisa Pennisi, Stephen Holland and Taylor Stein, 'Achieving Bat Conservation Through Tourism' (2004) 3(3) Journal of Ecotourism 195, 197-8.
22. Peggy Eby and Daniel Lunney, 'Managing the Grey-headed Flying-fox Pteropus poliocephalus as a Threatened Species: A Context for the Debate' in Peggy Eby and Daniel Lunney (eds), Managing the Grey-headed Flying-fox as a Threatened Species in NSW (2002) 1, 1.
23. Gill Bennett, Gatherings of a Naturalist in Australasia 1860 (1982).
24. quoted in Daniel Lunney, Adele Reid and Alison Matthews, 'Community Perceptions of Flying Foxes in New South Wales' in Peggy Eby and Daniel Lunney (eds), Managing the Grey-headed Flying-Fox as a Threatened Species in NSW (2002) 160, 161.
25. Francis Ratcliffe, Flying Fox and Drifting Sand: The Adventures of a Biologist in Australia (1948); Hall and Richards, above n 7, ch 10.
26. Guy Ballard, 'Has NSW Gone "Batty" over Flying-foxes? A Survey of Interactions Between Humans and Flying-foxes in NSW' in Department of Conservation and Environment NSW, Grey-Headed Flying Fox Research 2003-2004, 3.
27. Lunney, Reid and Matthews, above n 10.
28. Queensland, Parliamentary Debates, Legislative Assembly, 1 November 2007, 2068 (Rosemary Menkens).
29. In a recent survey, suburban residents listed flying foxes amongst their 18 most disliked species.
30. See Sean Fitzgibbon and Darryl Jones, 'A Community-based Wildlife Survey: The Knowledge and Attitudes of Residents of Suburban Brisbane, with a Focus on Bandicoots' (2006) 33 Wildlife Research 233, 239.
31. Dominique Thiriet, 'The Relocation of Flying Fox Colonies in Queensland' (2005) 22(3) Environmental and Planning Law Journal 231.
32. Billie Roberts, Peggy Eby, Carla Catterall, John Kanowski and Gill Bennett, 'Analysis of the Costs and Outcomes of Attempts to Relocate an Urban Flying-Fox Camp at Maclean, Australia' in Peggy Eby, Bradley Law, Lindy Lumsden and Daniel Lunney (eds), Biology and Conservation of Australasian Bats (in press).
33. John Mackenzie, Hume Field and Kimberly Guyatt, 'Managing Emerging Diseases Borne by Fruit Bats (Flying Foxes), with Particular Reference to Henipaviruses and Australian Bat Lyssavirus' (2003) 94(1) Journal of Applied Microbiology 59.
34. Thiriet, above n 13, 239.
35. Ibid 231.
36. Even though they bear only one young a year.
37. World Charter for Nature, GA Res 37/7, UN GAOR, 37th sess, 48th plen mtg, UN Doc RES 37/7 (1982), Preamble.
38. David Takacs, The Idea of Biodiversity: Philosophies of Paradise (1996) 332.
39. Hall and Richards, above n 7, 2-3.
40. Hall and Richards, above n 7.
41. Four additional species have also been recorded on Australian territory: the dusky flying fox (P. brunneus), the large eared flying fox (P. macrotis epularis), the Torresian flying fox (P. banakrisi) and the Christmas Island flying fox (P. melanotus natalis). The first three species will not be considered further because they are likely to have been misidentified.
42. see Environment Australia, 'Advice to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on Amendments to the List of Threatened Species under the.
43. Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) at at 27 August 2009.
44. Kristofer Helgen, 'On the Identity of Flying-foxes, Genus Pteropus (Mammalia: Chiroptera), from Islands in the Torres Strait, Australia' (2004) 780 Zootaxa 1.
45. The last species, P. melanotus, has a limited island distribution which makes it less subject to human antagonism than mainland species. It will not be considered further but it is worth noting that it has recently been nominated for listing under the EPBC Act.
46. Hall and Richards, above n 7, 60-3.
47. Ibid, ch 8, 'Diet and Feeding Ecology' 68.
48. Greg Richards, 'The Spectacled Flying Fox - Pteropus conspicillatus (Chiroptera: Pteropodidiae) in North Queensland. 2. Diet, Seed Dispersal and Feeding Ecology' (1990) 13 Australian Mammology 25.
49. D A Westcott, A J Dennis, A McKeown, M G Bradford and C R Margules, The Spectacled Flying Fox, Pteropus conspicillatus, in the Context of the World Heritage Values of the Wet Tropics World Heritage Area (2001).
50. See also Fujita and Tuttle, above n 7.
51. Hall and Richards, above n 7, 80-2.
52. Kim McConkey and Donald Drake, 'Flying Foxes Cease to Function as Seed Dispersers Long Before They Become Rare' (2006) 87(2) Ecology 271.
53. Hunting of native mammals is generally prohibited and may be conducted only by traditional owners exercising their traditional rights.
54. See Native Title Act 1993 (Cth) s 211(2).
55. National Parks and Wildlife Act 1974 (NSW) s 118G(1)(g).
56. Territory Parks and Wildlife Conservation Act 2006 (NT) s 122.
57. Nature Conservation Act 1992 (Qld) s 93 (not yet in force).
58. National Parks and Wildlife Act 1972 (SA) s 68D.
59. Nature Conservation Act 2002 (Tas) s 73.
60. Wildlife Act 1975 (Vic) s 28A(1)(e).
61. Wildlife Conservation Act 1950 (WA) s 23(1).
62. For the impact of hunting on flying foxes elsewhere.
63. see for instance Jenny A Cousins and Steve G Compton, 'The Tongan Flying Fox Pteropus tonganus: Status, Public Attitudes and Conservation in the Cook Islands' (2005) 39 Oryx 196.
64. Anna Banack, 'Pteropus samoensis' (2001) 661.
65. Mammalian Species 1, 3.
66. See for instance the impact of habitat reduction on Australian Pteropus spp.
67. Anne Duncan, Barry Baker and Narelle Montgomery, The Action Plan for Australian Bats (1999), Table 4.1.
68. Ratcliffe, above n 11.
69. see also Duncan, Baker and Montgomery, above n 28.
70. Hall and Richards, above n 7, 48-53.
71. Duncan, Baker and Montgomery, above n 28.
72. Hall and Richards, above n 7, 50.
73. Justin A Welbergen, Stefan M Klose, Nicola Markus and Peggy Eby, 'Climate Change and the Effects of Temperature Extremes on Australian Flying-foxes' (2008) 275.
74. Proceedings of the Royal Society B: Biological Sciences 419.
75. Alan McIlwee and Len Martin, 'On the Intrinsic Capacity for Increase of Australian Flying-foxes (Pteropus spp., Megachiroptera)' (2002) 32 Australian Zoologist 76.
76. Samantha Fox, Jonathan Luly, Caitlin Mitchell, Jennifer Maclean and David Westcott, 'Demographic Indications of Decline in the Spectacled Flying Fox (Pteropus conspicillatus) on the Atherton Tablelands of Northern Queensland' (2008) 35(5) Wildlife Research 417.
77. Steve Garnett, Olivia Whybird and Hugh Spencer, 'The Conservation Status of the Spectacled Flying Fox Pteropus conspicillatus in Australia' (1999) 31(1) Australian Zoologist 38.
78. Threatened Species Scientific Committee, Pteropus poliocephalus (Grey-headed Flying-fox) - Advice to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on Amendments to the List of Threatened Species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (undated) at at 27 August 2009.
79. Threatened Species Scientific Committee, Recommendation to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on a Public Nomination for a Species Listing under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (undated) at at 27 August 2009.
80. A more detailed overview is available in Gerard Early, 'Australia's National Environmental Legislation and Human/Wildlife Interactions' (2008) 11 Journal of International Wildlife Law and Policy 101.
81. Commonwealth v Tasmania (1983) 158 CLR 1.
82. Richardson v Forestry Commission (1988) 164 CLR 261.
83. Queensland v Commonwealth (1989) 167 CLR 232.
84. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 18.
85. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 196-96E.
86. Thereby protected under s 12 (World Heritage Property) of the.
87. Environment Protection and Biodiversity Conservation Act 1999 (Cth).
88. See Booth v Bosworth (2001) 114 FCR 39.
89. Brown v Forestry Tasmania (No 4) [2006] FCA 1729 (19 December 2006), [300] (Marshall J).
90. Note that this case has been overturned on appeal in Forestry Tasmania v Brown [2007] FCAFC 186 (30 November 2007) although not on this point.
91. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(2)(e)(i).
92. Nature Conservation Act 1990 (ACT).
93. National Parks and Wildlife Act 1974 (NSW).
94. Threatened Species Conservation Act 1995 (NSW).
95. Territory Parks and Wildlife Conservation Act 2006 (NT).
96. Nature Conservation Act 1992 (Qld).
97. National Parks and Wildlife Act 1972 (SA).
98. Threatened Species Protection Act 1995 (Tas).
99. Wildlife Act 1975 (Vic).
100. Flora and Fauna Guarantee Act 1988 (Vic).
101. Wildlife Conservation Act 1950 (WA).
102. In some jurisdictions, this process may be referred to as 'classification' or 'declaration'.
103. The categories used for listing may also vary between jurisdictions, with only the Commonwealth, New South Wales, Queensland and the Northern Territory classifications reflecting the IUCN categories.
104. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 178.
105. Nature Conservation Act 1990 (ACT) s 33.
106. Threatened Species Conservation Act 1995 (NSW) pt 2.
107. Territory Parks and Wildlife Conservation Act 2006 (NT) ss 29-30.
108. Nature Conservation Act 1992 (Qld), ss 76-80.
109. National Parks and Wildlife Act 1972 (SA) s 80(2a).
110. Threatened Species Protection Act 1995 (Tas) s 13.
111. Flora and Fauna Guarantee Act 1988 (Vic) s 10.
112. Wildlife Conservation Act 1950 (WA) s 14(2)(ba).
113. Except under the Threatened Species Protection Act 1995 (NSW) s 25A.
114. which provides that the Scientific Committee must review the list at least every two years.
115. Arthur Chapman, Numbers of Living Species in Australia and the World (Report for the Department of the Environment and Heritage, Canberra, Australia, September 2005) 3.
116. Effective 6 December 2001 and 14 May 2002 respectively.
117. Threatened Species Scientific Committee, Pteropus poliocephalus (Grey-headed Flying-fox) - Advice to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on Amendments to the List of Threatened Species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (undated) ('Grey-headed flying fox advice') at at 27 August 2009.
118. Threatened Species Scientific Committee, Recommendation to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on a Public Nomination for a Species Listing under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (undated) at at 27 August 2009.
119. See also Booth v Bosworth (2001) 114 FCR 39, 67.
120. See Threatened Species Scientific Committee, 'Grey-headed flying fox advice', above n 47.
121. Environment Australia, Annual Report 2001-02, Reports - Operation of the Environment Protection and Biodiversity Conservation Act 1999, 188.
122. See discussion below under 'Crop Protection'. 52 In May 2001.
123. under the Threatened Species Conservation Act 1995 (NSW) sch 2.
124. Peggy Eby, 'An Update on Nominations for Listing Grey-headed Flying Foxes as Vulnerable, 30 March 2001' (2001) 16 The Australasian Bat Society Newsletter 36.
125. Flora and Fauna Guarantee Act 1988 (Vic) s 10(7).
126. Environmental Protection Agency, Annual Report 2004-2005 (2005) 16.
127. Environmental Protection Agency, 'Bat Lovers Count the Grey Hair' (June 2004) (25).
128. EQ - News from EPA and QPWS 18.
129. Environmental Protection Agency, 'Flying Foxes' at 27 August 2009.
130. The passenger pigeon (Ectopistes migratorius) was a once abundant species found in the US. The species declined rapidly over a few decades, largely as a result of intensive hunting pressure and became extinct in 1914.
131. See T R Halliday, 'The Extinction of the Passenger Pigeon Ectopistes migratorius and its Relevance to Contemporary Conservation' (1980) 17(2) Biological Conservation 157.
132. The previous Queensland Environment Minister also acknowledged the species vulnerable status: Queensland.
133. Parliamentary Debates, Legislative Assembly, 1 November 2007, 4096 (Andrew McNamara).
134. Amy Whritenour Ando, 'Waiting to be Protected Under the Endangered Species Act: The Political Economy of Regulatory Delay' (1999) 42(1) Journal of Law and Economics 29.
135. D Sarewitz, quoted in John Lawton, 'Presidential Address - Ecology, Politics and Policy' (2007) 44 Journal of Applied Ecology 465.
136. A Scientific Committee was first established under the.
137. Endangered Fauna (Interim Protection) Act 1991 (NSW) sch 1, s 3.
138. its existence has continued under the Threatened Species Protection Act 1995 (NSW).
139. Threatened Species Protection Act 1995 (NSW) s 23A.
140. Threatened Species Protection Act 1995 (NSW) pt 2, div 3.
141. Threatened Species Protection Act 1995 (NSW) ss 22-24.
142. The Nature Conservation Act 1992 (Qld) ss 76-80
143. merely indicate that a species may be prescribed [as threatened] by regulation.
144. Nature Conservation (Wildlife) Regulation 2006 (Qld) sch 6, s 4.
145. Dan Lunney, Greg Richards and Chris Dickman, Pteropus poliocephalus, in IUCN 2008.
146. 2008 IUCN Red List of Threatened Species (2008) at 11 November 2009.
147. IUCN, IUCN Red List - Categories and Criteria (version 3.1) (2001).
148. Kristofer Helgen, Leo Salas and Frank Bonaccorso, Pteropus conspicillatus, in IUCN 2008.
149. 2008 IUCN Red List of Threatened Species (2008) at 11 November 2009.
150. This assessment was made shortly prior to the findings of Fox, above n 32.
151. A small population of black flying foxes found in northern New South Wales was protected in 1992 under the.
152. Endangered Fauna (Interim Protection) Act 1991 (NSW).
153. and upon the Act's repeal, under the Threatened Species Conservation Act 1995 (NSW) sch 2.
154. The species was removed from the list in August 2008 owing to its increase in both abundance and geographic distribution in the State.
155. see NSW Scientific Committee, 'Black Flying-fox - Removal of Vulnerable Species Listing Final Determination', gazetted 8 August 2008.
156. See Nature Conservation (Wildlife) Regulation 2006 (Qld) sch 6, s 4.
157. (list of 'least concern' wildlife - mammals).
158. National Parks and Wildlife Act 1974 (NSW) s 5.
159. (definition of protected fauna) and sch 11 (unprotected fauna).
160. Wildlife Act 1975 (Vic) s 3 (definition of protected wildlife).
161. Welbergen et al, above n 31.
162. The black flying fox appears to have been suitably surveyed in northern NSW, the southernmost part of its range, but not in Queensland, where the bulk of the population occurs.
163. Email from Billie Roberts, PhD Candidate, Griffith University, to author, 26 June 2009.
164. See Section IX-C below for further discussion of funding allocation for unpopular species.
165. See National Parks and Wildlife Act 1974 (NSW) s 5
166. (definition of protected fauna) and sch 11 (unprotected fauna).
167. R Lane, 'Going in to Bats for Queensland Flying Foxes' (1985) 21(7) Australian Natural History 306.
168. Nature Conservation (Wildlife) Regulation 2006 (Qld) sch 6, s 4.
169. See Rob J Whelan, Claire L Brown and David Farrier, 'The Precautionary Principle: What is it and How Might it be Applied in Threatened Species Conservation?' in Pat Hutchings, Daniel Lunney and Chris Dickman (eds), Threatened Species Legislation: Is it Just an Act? (2004) 49, 53.
170. Environmental Protection and Biodiversity Act 1999 (Cth) pt 13, div 1(AA).
171. as introduced by the Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) (No 165, 2006).
172. Humane Society International, Tasmanian Conservation Trust and WWF, Submission to the Senate Environment, Communications, Information Technology and the Arts Committee Inquiry into the Provisions of the Environment & Heritage Legislation Amendment Bill (No. 1) 2006 (October 2006) 18.
173. Standing Committee on Environment, Communication and the Arts, The Operation of the Environmental Protection and Biodiversity Conservation Act 1999 - First Report (March 2009), [5.15]-[5.34].
174. Recommendation 8 to amend the listing process to 'improve transparency, rigour and timeliness'.
175. National Parks and Wildlife Act 1974 (NSW) ss 120, 121 ('licence to harm').
176. Territory Parks and Wildlife 2006 (NT) s 55(1)(a) ('permit to take').
177. Nature Conservation Regulation 1994 (Qld) s 278 ('damage mitigation permit').
178. Wildlife Act 1975 (Vic) s 28A ('authorisation to control').
179. Wildlife Conservation Regulation 1970 (WA) s 5 ('damage licence').
180. Note that as there have only been occasional records of flying foxes in the ACT and as they do not occur in South Australia and Tasmania, these jurisdictions will not be considered here.
181. The EPA's section responsible for wildlife was at the time called the 'Queensland Parks and Wildlife Service'. For simplicity it will be referred to as EPA.
182. Chris McGrath, 'The Flying Fox Case' (2001) 18(6) Environmental and Planning Law Journal 540, 541.
183. Chris McGrath, 'Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest' (2008) 25 Environmental and Planning Law Journal 324, 341-2.
184. McGrath, 'The Flying Fox Case', above n 84, 542.
185. McGrath, 'Flying Foxes, Dams and Whales', above n 84, 342.
186. Booth v Bosworth [2000] FCA 1878.
187. Booth v Bosworth [2001] 114 FCR 39.
188. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 475.
189. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 12.
190. Queensland, Parliamentary Debates, Legislative Assembly, 8 August 2001, 2331 (Dean Wells, Minister for the Environment).
191. Following advice by the Royal Society for the Protection of Animals that the electrocution of the flying foxes was inhumane and hence inconsistent with the requirement under section. 281(b) of the then Nature Conservation Regulation 1994 that animals killed under damage mitigation permits be killed in a way that was 'humane and not likely to cause unnecessary suffering to the animal'.
192. See Queensland, Parliamentary Debates, Legislative Assembly, 8 August 2001, 2331 (Dean Wells, Minister for the Environment).
193. Booth v Frippery Pty Ltd [2007] QPEC 099.
194. Booth v Yardley [2006] QPEC 119.
195. Queensland Ombudsman, 2005-2006 Annual Report (2006) 34.
196. Introduced by amendments to the Vegetation Management Act 1999 (Qld).
197. See for instance Joe Kehoe, 'Land Clearing in Queensland' (2006) 23 Environmental and Planning Law Journal 148.
198. Booth v Yardley [2006] QPEC 119.
199. Booth v Frippery Pty Ltd [2007] QPEC 099.
200. Booth v Yardley [2008] QPEC 100.
201. Booth v Frippery Pty Ltd [2008] QPEC 122.
202. Department of the Environment and Heritage, EPBC Act - Administrative Guidelines on Significance - Supplement for the Spectacled Flying-fox (2003-2004) (2003).
203. Department of the Environment and Heritage, EPBC Act - Administrative Guidelines on Significance - Supplement for the Grey-Headed Flying-fox (2003-2004) (2003).
204. This quota is further allocated amongst states.
205. Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64 (12 February 2003).
206. See McIlwee and Martin, and Fox et al, above n 32.
207. Individual quotas amount to a maximum of 50 animals per orchardist per month in New South Wales and 30 in Queensland. But note recent (2008) ban in Queensland.
208. Brown v Forestry Tasmania (No 4) [2006] FCA 1729 (19 December 2006).
209. Andrew McNamara, Minister for Sustainability, Climate Change and Innovation, 'Shooting of Flying Foxes to be Illegal in Queensland' (Media Release, 15 May 2008).
210. This measure came into force on 1 September 2008.
211. Nature Conservation Regulation 2006 (Qld) s 185.
212. This provision replaces section 281(b) of the Nature Conservation Regulation 1994 (Qld) which was used to discontinue the issuing of permits to electrocute flying foxes, also on cruelty grounds.
213. The wording of the new provision is slightly different.
214. Growcom, 'Growcom Urges Govt to Rethink Flying Fox Shooting Ban' (Media Release, 2 September 2008).
215. Michael House, 'Open Fire on Flying Foxes', Warwick Daily News (Warwick), 20 December 2008 at 27 August 2009.
216. To support their case, some fruit growers have developed a code of practice.
217. See Ashley Walmsley, 'Code Proposes Humane Bat Control', Queensland Country Life, 7 September 2009 at 11 November 2009.
218. Rob Messenger, Shadow Minister for Tourism and Small Business, 'Government Must Change Flying Fox Policy Now to Stop Disaster' (Media Release, 12 January 2009).
219. 'LNP Pledges to Overturn Flying Fox Shooting Ban', ABC Rural News, 18 March 2009 at 27 August 2009.
220. Penny Timms, 'LNP Urges Flying Fox Damage Permits', ABC North Queensland, 26 August 2009 at 27 August 2009.
221. Anja Divljan, Kerryn Parry-Jones and Peggy Eby, Report on Deaths and Injuries to Grey-headed Flying-foxes, Pteropus poliocephalus Shot in an Orchard near Sydney, NSW (March 2009).
222. Prevention of Cruelty to Animals Act 1979 (NSW) s 5.
223. The RSPCA which has the main responsibility for enforcing the Act, received 49,494 complaints nationally in 2007-2008 but undertook only 266 prosecutions, none of them related to wildlife.
224. Over the past 5 years, it appears to have prosecuted no more than two wildlife matters per year.
225. See RSPCA Annual Statistics at at 27 August 2009.
226. Alice Woodhead, Ed Biel, David O'Shannessy and Len Martin, NSW Flying Fox Licensing Review Panel Report to Landscapes and Ecosystems Conservation Branch - NSW Department of Environment and Climate Change (May 2009).
227. Ibid 49.
228. Carmel Tebbutt, Minister for Climate Change and the Environment, 'Flying-fox Review Panel Report Released' (Media Release, 11 August 2009).
229. NSW Department of Primary Industries, Shooting of Flying Foxes - Standard Operating Procedure for NSW (October 2009).
230. See EPA 2004-2005 Annual Report.
231. EPA 'Bat Lovers', above n 56.
232. EPA 'Flying Foxes'.
233. Halliday, above n 57.
234. See also Queensland, Parliamentary Debates, Legislative Assembly, 1 November 2007, 4096 (Andrew McNamara).
235. For instance, under the NSW Department of Environment and Conservation's Policy and Procedural Guidelines for the Mitigation of Commercial Crop Damage by Flying-foxes (updated June 2005), inspection of properties to confirm damage may be undertaken (3).
236. NSW Department of Environment and Conservation, Annual Report on Licences Issued under the DEC Policy and Procedural Guidelines for the Mitigation of Commercial Crop Damage by Flying Foxes for the 2005/2006 Fruit Growing Season, 5. It can be reasonably inferred that the same applied in Queensland when shooting was allowed.
237. For instance, in the year 2005-2006, the Queensland Environmental Protection Agency granted 664 damage mitigation permits and refused only 22.
238. In 2006-2007, 771 were granted and 1 was refused; in 2007-2008, 846 were granted and 4 refused.
239. See Environmental Protection Agency, 'Report on the Administration of the Nature Conservation Act 1992' in Annual Reports for 2005-2006, 2006-2007 and 2007-2008 at at 27 August 2009.
240. NSW Department of Environment and Conservation, Annual Report on Licences Issued under the DEC Policy and Procedural Guidelines for the Mitigation of Commercial Crop Damage by Flying Foxes for the 2005/2006 Fruit Growing Season, 7; and Annual Report for the 2006/2007 Season, [4].
241. In Queensland, monitoring of compliance appears to have been a focus of the EPA only in the last two years before the shooting bans.
242. See Environmental Protection Agency's Annual Reports (Report on the Administration of the Nature Conservation Act 1992) from 2001 to 2008.
243. Booth v Bosworth [2001] 114 FCR 39.
244. Booth v Yardley [2006] QPEC 119.
245. Booth v Frippery Pty Ltd [2007] QPEC 099.
246. In Booth v Bosworth [2001] 114 FCR 39.
247. the respondents chose not to produce evidence as to the number of animals killed, leading to the inference that the evidence which could have been given to the Court 'would not have been favourable to their case' [42] (Branson J).
248. See the DEC Annual Report on Licences Issued under the DEC Policy and Procedural Guidelines for the Mitigation of Commercial Crop Damage by Flying Foxes for the 2006/2007 Fruit Growing Season, above n 118, which indicates that 16% of permittees failed to submit their report for the season as per licence requirement. In the 2005/2006 and 2004/2005 reports, 12% and 33% respectively had failed to do so.
249. The Queensland Annual Reports for the years shooting was allowed do not provide data on reporting and contain only vague claims that agency staff monitored returns and took follow up actions.
250. NSW Department of Primary Industries, above n 113.
251. National Parks and Wildlife Act 1974 (NSW) s 120.
252. Threatened Species Conservation Act 1995 (NSW) s 91.
253. Territory Parks and Wildlife 2006 (NT) s 55 (1)(a).
254. Nature Conservation (Wildlife Management) Regulation 2006 (Qld) s 181.
255. Wildlife Act 1975 (Vic) s 28A.
256. Wildlife Conservation Regulation 1970 (WA) s 5.
257. See Queensland Parks and Wildlife Service, 'Managing Flying Fox Colonies in Urban Areas' (Policy WL - 3.2.3, approved 5/10/01) (superseded in 2006).
258. See also conditions of permits issued over the years under the Nature Conservation Regulation 1994.
259. NSW Department of Environment and Climate Change, Flying Fox Camp Management Policy (2007).
260. Queensland Environmental Protection Agency, Management of Urban Flying-fox Colonies - Guideline Wildlife Management (2006) at 4 November 2009.
261. For instance, the cost of repeated attempts to relocate the Maclean (NSW) colony (including associated costs) has been estimated to exceed AUD 700,000 so far while the relocation of the flying foxes from the Royal Melbourne Botanic Gardens (Victoria) has been estimated at AUD 3 million.
262. See Roberts et al, above n 13.
263. See generally Roberts et al, above n 13.
264. and with respect to relocations during the breeding season.
265. see Stefan M Klose, Justin A Welbergen and Elisabeth K V Kalko, 'Testosterone is Associated with Harem Maintenance Ability in Free Ranging Grey-headed Flying Foxes Pteropus poliocephalus' Biology Letters, (in press, published online 18 August 2009).
266. NSW Department of Environment and Climate Change, Flying Fox Camp Management Policy (2007) 6.
267. Queensland Environmental Protection Agency, Management of Urban Flying-fox Colonies - Guideline Wildlife Management (2006), above n 125, 3.
268. See also Thiriet, above n 13, 233-4.
269. The application yielded 1,175 documents relevant to the relocation of flying foxes in Charters Towers.
270. The then 'Managing Flying Fox Colonies in Urban Areas' (Policy WL -3.2.3, approved 5/10/01).
271. Note that the policy has been replaced by the Queensland EPA.
272. 'Management of Urban Flying-fox Colonies' Guideline Wildlife Management (2006), above n 125.
273. Previously under section 8(1)(b) of the.
274. Nature Conservation Regulation 1994 (Qld).
275. since 28 August 2006, under section 29(3)(b) of the.
276. Nature Conservation (Administration) Regulation 2006 (Qld).
277. Nature Conservation Act 1992 (Qld) s 88C.
278. It may actually be counterproductive since the definition of 'roost' in s 88C(6) is strangely limited to 'maternity colonies'.
279. Queensland, Parliamentary Debates, Legislative Assembly, 1 November 2007, 4068-4101.
280. Jennifer O'Reilly, 'Tower Bats to Go: Pledge' Townsville Bulletin (Townsville, Qld), 13.
281. (reporting on commitment by Liberal/National leader Lawrence Springborg).
282. Queensland, Parliamentary Debates, Legislative Assembly, 28 August 2008, 2480 (Shane Knuth).
283. Referrals no 2002/638 (Melbourne), 2003/1013 (Cooya Beach), 2005/2137 and 2005/2284 (Ipswich), 2006/2961 and 2007/3370 (Murwillumbah/Dallis Park), 2007/3473 and 2008/4288 (Port Douglas), 2008 /4646 (Sydney Botanic Gardens), 2007/3435 and 2008/4323 (Singleton) and 2009/5017 (Bairnsdale). Note that several more applications (2004/1668 (Mareeba), 2006/2985 (Lismore), 2008/4363 (Clarence Valley/Maclean) and 2008/4568 (Sydney Botanic Gardens) were submitted but later withdrawn.
284. The latter was subsequently revised and resubmitted as 2008/4646.
285. All referrals are available at Australian Government, Department of the Environment, Water, Heritage and the Arts, EPBC Act, 'Public notices and invitation to comment' at 4 November 2009.
286. 2002/638 (Melbourne), 2003/1013 (Cooya Beach), 2006/2961(Murwillumbah/Dallis Park), 2007/3435 (Singleton), and 2007/3473 and 2008/4288 (Port Douglas).
287. 2003/1013 (Cooya Beach), 2006/2961(Murwillumbah/Dallis Park), and 2007/3473 and 2008/4288 (Port Douglas).
288. Department of Environment and Heritage, EPBC Act Policy Statement 1.1 (Significant Impact Guidelines) - Matters of National Environmental Significance (2006).
289. 2008/4363 (Clarence River/Maclean), 2008/4323 (Singleton), and 2008/4646 (Sydney Botanic Gardens).
290. Singleton (2007/3916).
291. According to the Environment Protection and Biodiversity Act 1999 (Cth) s 74A.
292. Madden, above n 6, 189.
293. See restrictions under the Nature Conservation (Wildlife Management) Regulation 2006 (Qld) pt 4, div 2.
294. under the Qld and NSW policies, above n 125.
295. Madden, above n 6, 199-201.
296. For instance, the repeated breaches of conditions of permits held by the Charters Towers City Council.
297. Eg, pruning of trees, planting of vegetation barriers, double glazing windows, public education, etc.
298. Peter Rolfe, 'Licence to Kill Iconic Wildlife', Herald Sun (Melbourne), 3 August 2008 at 11 November 2009.
299. In contrast to the situation described by Stuart Harrop in 'Conservation Regulation: A Backward Step for Biodiversity?' (1999) 8 Biodiversity and Conservation 679, 687.
300. where some animals are said to be more equal than others.
301. See Madden, above n 6, 190.
302. For instance by shooting and burning live animals: 'Bats Killed in Vicious Attack', The Daily Mercury (Mackay), 27 November 2007 at 10 June 2010.
303. by injuring them with slingshots: Gary Thompson, 'Flying Foxes in Hail of Hate', The Observer (Gladstone), 14 January 2009, 3.
304. See for instance the case of Southon v Beaumont [2008] NSWLEC 12 involving the clearing of 1500 trees in which a colony roosted.
305. EPA, Environment Management Guidelines - Enforcement Guidelines (Dec 2004) 2.
306. Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey; Gordon Plath of the Department of Environment and Climate Change v Southton [2009] NSWLEC 102.
307. In these cases heard concurrently, the defendants had cleared 1,500 trees in which grey-headed flying foxes roosted. The prosecution alleged that the defendants had cleared an endangered ecological community in breach of s 118A(2) of the National Parks and Wildlife Act 1974 but withdrew the charges when the evidence regarding the nature of the relevant soil profiles, and hence the type of ecological community, was found to be incorrect.
308. Whritenour Ando, above n 58, 30.
309. Victorian Farmers Federation, 'Dingo Proposal a Dog's Breakfast' (Media Release, 25 May 2007) at 11 November 2009.
310. Forest Guardians, 'Groups Contest Denial of Federal Protection to Declining Prairie Dog - Illegal Political Interference Cited in Lawsuit' (Media Release, 13 December 2006) at 11 November 2009.
311. Office of Inspector General, US Department of the Interior, Report of Investigation - Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (March 2007) at 11 November 2009.
312. For a Canadian perspective.
313. see also A O Mooers, L R Prugh, M Festa-Bianchet and J A Hutchings, 'Biases in Legal Listing under Canadian Endangered Species Legislation' (2007) 21(3) Conservation Biology 572.
314. See the removal of flying foxes from the Fauna Protection Act 1974 (Qld) in 1985 under pressure from orchardists.
315. See also Bill HB2458 passed by the Oregon House of Representatives in 2003 which allowed for delisting of species 'not of cultural, scientific, or commercial significance' to the state. This was used to attempt to remove wolves from the threatened species list.
316. See similar recommendations for Canada in.
317. Mooers et al, above n 157.
318. See above n 70.
319. On 18 November 2008, pursuant to the Fauna and Flora Guarantee Act 1988 (Vic).
320. Gavin Jennings, Minister for the Environment, Climate Change and Innovation, 'Victoria Lists Dingo as -Threatened Species' (Media Release, 24 October 2008).
321. Scientific Advisory Committee, Flora and Fauna Guarantee, Final Recommendation on a nomination for listing: Canis lupus subsp dingo (Nomination No. 789) (2007).
322. As is provided by the Nature Conservation Act 1992 (Qld) s 112.
323. As is provided by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ch 5, pt 13, div 5.
324. The preparation of a flying fox conservation plan was mentioned in the EPA's Annual Reports.
325. (Report on the Administration of the Nature Conservation Act 1992) for 2002-2003, 2003-2004 and 2004-2005 but not in subsequent reports.
326. See Department of Environment, Climate Change and Water NSW, 'Draft National Recovery Plan for the Grey-headed Flying-fox Pteropus poliocephalus' (2009).
327. Queensland Department of Environment and Resource Management, 'Draft National Recovery Plan for the Spectacled Flying fox Pteropus conspicillatus' (2009).
328. See the example set by the Commonwealth Department of Environment and Water's 'EPBC Act Public Notices' at at 11 November 2009.
329. NSW's 'Public Register of s 91 Applications' at 11 November 2009.
330. See Standing Committee on Environment, Communication and the Arts, The Operation of the Environmental Protection and Biodiversity Conservation Act 1999 - First Report (March 2009), [6.30]-[6.33].
331. There is ample literature on the rise of disclosure of information as a regulatory tool.
332. See eg Mary Graham, Democracy by Disclosure: The Rise of Technopopulism (2002).
333. Cass R Sunstein, Risk and Reason: Safety, Law and the Environment (2002).
334. Mark Stephan, 'Environmental Information Disclosure Programs: They Work, But Why?' (2002) 83(1) Social Science Quarterly 190.
335. Daniel Rohlf, 'Six Biological Reasons Why the Endangered Species Act Doesn't Work - And What to Do About It' (1991) 5(3) Conservation Biology 273.
336. Hugh Possingham, Inaugural University of Queensland Federation Fellows Public Lecture, Customs House, Brisbane, 19 September 2007.
337. Helene Marsh, Andrew Dennis, Harry Hines, Alex Kutt, Keith McDonald, Ellen Weber, Stephen Williams and John Winter, 'Optimizing Allocation of Management Resources for Wildlife' (2007) 21(2) Conservation Biology 387.
338. Kristin S Schrader-Frechette and Earl D McCoy 'Biodiversity, Biological Uncertainty, and Setting Conservation Priorities' (1994) 9 Biology and Philosophy 167.
339. Environmental Protection Agency, 'Back on Track Species Prioritisation Framework' last updated 23 October 2008 at11 November 2009.
340. See Denise Ford, 'An Historical Perspective of Changing Community Attitudes Towards Flying-foxes in Sydney' in Peggy Eby and Daniel Lunney (eds), Managing the Grey-headed Flying-fox as a Threatened Species in NSW (2002) 147.
341. and Elisabeth Larsen, Marjorie Beck, Elizabeth Hartnell and Michael Creenaune, 'Neighbours of Ku-rin-gai Flying-fox Reserve: Community Attitudes Survey 2001' in Peggy Eby and Daniel Lunney (eds), Managing the Grey-headed Flying-fox as a Threatened Species in NSW (2002) 225.
342. As evident from the Freedom of Information material obtained by the author.
343. Conservation Services (QPWS), Emerging Issue Briefing Note to the Environment Minister - 'Launching the Brochure -Flying Foxes in Charters Towers' 27 April 2006 (document obtained under Freedom of Information).
344. See for instance Department of Sustainability and Environment, 'Melbourne's Flying Foxes' last reviewed 1 April 2009 at 11 November 2009.
345. Roberts et al, above n 13.
346. See for instance Jenny C Daltry et al, 'Five Years of Conserving the "World's Rarest Snake", the Antiguan Racer Alsophis antiguae' (2001) 35(2) Oryx 119, 123.
347. Len Martin, 'On the Transmission of Bat Diseases by the Media - A View from the Trenches' (2003) 32 (2) Australian Zooogist 298.
348. Thiriet, above n 13.
349. The demonisation of flying foxes by the media appears to be in stark contrast with the media portrayal of other wildlife.
350. In Daniel Lunney and Chris Moon, 'The Portrayal of Human-wildlife Interactions in the Print Media' in Daniel Lunney, Adam Munn and Will Meikle (eds), Too Close for Comfort - Contentious Issues in Human-wildlife Encounters (2008) 52, 57.
351. the authors found that '[print media] articles generally supported a conservation ethos' and that their 'coverage was generally even-handed'.
352. NSW Department of Environment and Climate Change, Flying Fox Camp Management Policy (2007).
353. Department of Environment and Climate Change, Best Practice for the Grey-headed Flying Fox (October 2008) at 11 November 2009.
354. Pest Animal Control Conference, Charles Sturt University, Wagga Wagga NSW (30 September to 2 October 2008).
355. See conference advertising at 11 November 2009.
356. Jerry Franklin, 'Preserving Ecosystems: Species, Ecosystems or Landscapes?' (1993) 3(2) Ecological Applications 202.
357. See McNamara, above n 103.
358. for the announcement of a low interest loan for orchardists at the same time as the ban on shooting in Queensland.
359. The media widely reported on the ban but not on the loan.
360. Habitat loss, not the focus of this article, will also need to be addressed.
361. See above n 28.
362. Mark McArdle (MP), 'Hendra Virus Bats Must be Moved' (Media Release, 26 August 2009).
363. Timms, above n 106.
364. Natasha Bita and Sarah Elks, 'Bat Cull Called for as Virus Threat Spreads', The Australian, 12 August 2009 at 27 August 2009.
365. Ben Cubby, 'Bash Baby Bats to Death, Shooters Told', Sydney Morning Herald, 9 August 2009, at 27 August 2009.