Deer Bill 2006
Reverend the Hon. Dr GORDON MOYES: The objects of the Deer Bill include clarifying the ownership of deer, regulating the keeping of captive deer, preventing the release of deer from captivity, and controlling deer that are not captive. It seems to me that these are simple objectives, but there are extremely complex amendments regarding escaped deer and the ownership of deer. I have consulted with as many people as I considered helpful, yet some issues have not been resolved. Among the menagerie of animals introduced into the Australian landscape since colonisation, feral deer can be considered as one of the most damaging. Many in the community do not realise that feral deer present such a problem.
Honourable members may recall that General Purpose Standing Committee No. 5 conducted an inquiry into feral animals. The committee’s inquiry addressed the usual feral animals, including goats, pigs and camels. The committee handed down its report in October 2002. Many submissions were received, including some about feral deer. Community concern is often mixed when it comes to managing infestations of animals that physically appear, for all intents and purposes, to be warm and loving. In the case of deer, the stereotype of Bambi comes to mind. Mr Brian Gilligan, Director General of the National Parks and Wildlife Service, noted that there are problems with some people having an affinity with certain animals, including horses, that is brumbies, and deer, that is Bambies. Mr Gilligan said:
We believe that we must treat feral animals in accordance with our statutory obligation. Horses are feral animals in the context of our management of parks … I would stress that we have had a fairly tough lesson in the Guy Fawkes experience—
That comment referred to the aerial shooting of wild brumbies, an operation the public wholeheartedly rejected. He further said:
We must acknowledge that the community, or significant sections of the community, feels significantly differently about feral horses than they may feel about many other feral animals. The only others that come anywhere near to feral horses are probably deer and maybe that is the big brown eyes and the configuration of the face, but whatever it is, there is certainly a strong affinity that we must acknowledge.
I suppose the affable and romanticised stereotype of feral deer is not accurate. It is one that needs to be abandoned and realigned to reality. As the second reading speech said, the “first deer were imported into New South Wales in 1803 and have since established in the Australian bush, particularly in Victoria and New South Wales”. The Treasurer, the Hon. Michael Costa, had an experience with a deer one morning while driving from his home. The deer on the road, as he described it, was more like a moose. Little was it known that from the moment deer were introduced into this country the species would overrun segments of Australia to such a degree that it is now largely considered a pest in many areas.
The New South Wales National Parks and Wildlife Service report entitled “Pest Animal Management 2003” outlines some of the major impacts of feral deer in conservation areas, including “trampling, ringbarking and grazing of native vegetation, fouling of water holes, accelerating erosion, and potential for transmission of animal diseases”. It comes as no surprise that the Threatened Species Conservation Act 1995 lists “herbivory and environmental degradation caused by feral deer” as a key threatening process. However, adverse impacts stretch beyond environmental concerns to socioeconomic impacts on local communities such as “damaging residential gardens and fences, attracting illegal hunting and carrying diseases and parasites that may be transmitted to humans”. In fact, it has been noted that feral deer pose a significant traffic hazard and there is some community concern about collisions resulting in human fatality. Clearly, the presence of deer has brought detriment to New South Wales on a number of levels. There is a firm platform for concerted local and regional action to deal with feral deer.
A survey by the University of Western Sydney indicates that there has been a significant increase in the distribution and abundance of feral deer across New South Wales. In particular, the National Parks and Wildlife Service, the rural land protection boards, State Forests NSW, and NSW Agriculture have expressed their concern about the increase in the number of feral deer sightings, especially in coastal and tableland areas. In the Hastings area and the Port Stephens-Great Lakes area, peak organisations have put their heads together to form management strategies to tackle the problem of deer. Similarly, the Royal National Park has a major deer infestation. Attempts to relocate many deer have received a great deal of public objection.
Research indicates that the deer population has increased to such an extent in the Royal National Park that it is having “significant adverse impacts on native flora and fauna, especially vegetation communities currently under threat, such as littoral rainforest and coastal heathland”. A working group composed of representatives from the University of Sydney, the Nature Conservation Council, the National Parks Association, the RSPCA, the New South Wales Animal Welfare League, Sutherland Shire Council and others has developed a deer management plan for the Royal National Park. According to the 2003 pest management report, culling under the plan “is now underway with the full approval of animal welfare groups who are auditing the web site”. In evidence before the General Purpose Standing Committee’s inquiry into feral animals, Dr Regina Fogarty from NSW Agriculture said:
The number of feral deer in the State is impossible to estimate but about five new wild herds, of various sizes, are reported to agencies such as NSW Agriculture every week. Feral deer tend to be located on the tableland and coastal districts of New South Wales with large colonies being found in New England, Port Macquarie, Royal National Park and Lake George Areas.
Clearly, feral deer present major issues to our environmental landscape and also to agricultural industries through the spread of disease. However, while feral deer can cause significant harm, captive deer remain a legitimate industry for farmers. According to the second reading speech in the Legislative Assembly:
Deer farming is well established in New South Wales and this State has nearly a quarter of Australia’s dedicated deer farmers. Deer products from captive deer fill an important niche market both at home and overseas. There is steadily increasing demand from overseas markets for products such as venison and velvet antler.
In response to a call by landowners, rural land protection boards, local government and others, this bill has been developed to provide legislative support to better manage deer in the wild. First, the bill clarifies the ownership of deer; second, it regulates the keeping and management of captive deer; and, third, it provides for the control of wild deer. Although those statements are very simple, each of them is extremely complex.
I am amazed that the department and the Minister have not come up with better answers on each of these contentious issues, as we have already heard from the Deputy Leader of the Opposition and the Hon. Robert Brown. Legal uncertainty has surrounded deer ownership. One of the Minister’s advisers only just reinforced that statement and indicated that no-one has the ownership of deer. I do not believe that is correct, but that is what I was just told. At common law, absolute property rights cannot be held over deer that are found in the wild.
The Hon. Duncan Gay: The problem is that they believe that. That is the problem.
Reverend the Hon. Dr GORDON MOYES: The Government certainly believes that and I was just advised that that is the case. However, as I said, I do not believe it is correct. If deer are captive, obviously property rights exist in them, but if they are released or escape there is no ownership in them. That is the issue we discussed with deer farmers. That is the case even if the deer have remained captive for a long time and they have been fed and nurtured by a deer farmer. Once the deer are released they might revert to wild type. The Government argues that the legislation serves to clarify the common law position. The legislation states that deer farmers will now have absolute property rights over deer provided they are kept in accordance with legislative requirements.
Ownership will cease if and when the deer escape, arguably giving certainty to those involved in deer control activities. I have consulted with farmers about the idea of having every deer tagged and making it illegal to destroy deer with tags, whether they are within or outside fences. Interestingly, even deer farmers do not agree with that proposition. If they cannot agree with propositions such as that, what can mere doctors of medicine and doctors of divinity do to provide wisdom to this House? Those in the industry dispute the effectiveness of that part of the legislation. The New South Wales branch of the Deer Industry Association of Australia expressed the view that the bill:
... will actually worsen the community problems with feral deer, by encouraging the deliberate release of farm deer from their enclosures by hunters.
I noted that the representative from the Shooters Party declared this was but an illusion and that in point of fact it does not happen. The bill allows any released deer to be lawfully shot by anyone with or without a hunter’s licence, and any person who subsequently gains possession of deer is to be recognised in law as the new and rightful owner of that deer. A foreshadowed amendment provides for a two-kilometre radius from a deer farm to protect the ownership rights of deer. It seems to me that that amendment has some problems. First, Bambi does not know how far two kilometres is—whether it is as the crow flies or via the road. Second, once tagged deer have wandered more than two kilometres they become legitimate prey for shooters and others.
The bill does not and cannot distinguish between feral and farm deer. It seems that there is an incentive under the proposed regime for shooters seeking to expand wild deer herds on public lands as a public hunting resource. Livestock thieves could also exploit this scenario. I have been assured that all shooters have to book with the Game Council. In doing so, every shooter will be given a map listing each deer farm and its location, so they will always know whether deer in the bush are two kilometres or more away from a farm. This is really beginning to border on the ludicrous. This is not the stuff for making regulation and law in this House. Further, the Deer Industry Association of Australia states that the deer bill as it stands is:
bad for the environment because it encourages criminal release of farmed deer by unethical hunters, potentially increasing the distribution and number of feral deer in future. It is bad for all farmers because it creates new forms of red tape and compliance costs for farmers.
I agree entirely with that statement. The association also states:
It is bad for business because it establishes the principle that extinction of property rights is a legitimate means to obtain compliance.
The bill allows for the development of requirements for keeping captive deer. It is said that these requirements will reflect and reinforce the deer industry code on significant issues such as secure fencing. The second reading speech indicates that the regulations will be developed in conjunction with the deer industry. My observation is that that is far from the truth. There seems to be little commonality of purpose between the Minister and his advisers and those from within the industry. Briefly, the legislation will make it an offence to release deer from an area fenced in accordance with the requirements for keeping captive deer. That should be an offence with any captive animal used for farming purposes.
Infringements will be difficult to monitor as it is envisaged that persons releasing deer into the wild will act at night. We are all used to the idea of people stealing steers and other property at night, and I imagine that it is a very real problem. The repercussions arising for both the farmer and the surrounding environment are adverse and arguably warrant a greater maximum penalty than $5,500 for an individual and $11,000 for a corporation involved in such illegal activity. It will also become an offence to release deer into an area not fenced in accordance with the legislative requirements. Notably, the maximum penalty is equivalent to that prescribed for releasing deer that are fenced in. This discrepancy is ironic and seemingly unfair as it potentially penalises those who are endeavouring to uphold the law, that is, the deer farmers, to the same degree as someone who is looking to release deer, for whatever reason, such as hunters or thieves.
The legislation will provide support to organised control programs by requiring owners and occupiers of land in particular areas to ensure that non-captive deer are eradicated. I urge the Government to consider those aspects of the bill that are to be amended. A large number of amendments will be moved in Committee. It is bad legislation when we have to have so many amendments and when all key players in the business—the Government, its advisers, the departments, the Shooters Party, and deer farmers—cannot reach logical and acceptable conclusions. It is ridiculous that others have to determine the law when no area of any party seems to agree. That being said, the Christian Democratic Party commends the measured initiatives to resolve the long-standing issues caused by the problem of feral deer in New South Wales.