Legislative Council: Thursday, March 09, 2023



National Parks and Wildlife (Wombat Burrows) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 September 2022.)

The Hon. E.S. BOURKE (17:02): I rise to speak on behalf the government and would like to thank the Hon. Tammy Franks for introducing this bill. As an iconic species in South Australia, there is value in increasing the protection of wombats and in clarifying for landholders and the community how wombats and their habitat are protected; however, the government seeks to make some amendments in order to address a number of issues created by the proposed bill.

The bill creates an increased regulatory burden by imposing a new permit system on landholders who have a genuine need to manage wombat burrows, potentially limiting the effectiveness of the intended increased protections. A significant increase in resources will be required to implement the framework proposed. This would include the requirement for the National Parks and Wildlife Service's rangers to conduct permit assessments, site inspections and approvals, and undertake appropriate compliances.

Two species of wombat are found in South Australia: the southern hairy-nosed wombat and the common wombat, sometimes called the bare-nosed wombat. I will leave the other pronunciations to the honourable member. The latter is recognised as a rare species in South Australia under the National Parks and Wildlife Act 1972 (national parks act).

Both species are protected under the National Parks Act, which means that under section 51 and 68 the current framework provides that a person must not take a protected animal without a permit (that includes killing, injuring or capturing a wombat), or interfere, harass or molest a protected animal or undertake an activity that is, or is likely to be, detrimental to the welfare of a protected animal unless they hold a permit to do so, or satisfy an exemption criteria. There are also provisions relating to the ill-treatment of animals in the Animal Welfare Act 1985 (Animal Welfare Act).

In order to support the bill and to further the protection of wombats in South Australia, the government proposes some amendments. The first is inserting a provision that landholders are permitted to destroy a wombat burrow without a permit where it poses a risk to human safety, stock, farming crops and machinery, such as harvesters and tractors, or infrastructure such as tracks or built structures. This provision would not derogate from the requirement of a person to comply with sections 51 and 68 of the National Parks and Wildlife Act or the provisions of other legislation such as the Animal Welfare Act.

The other main amendment inserts a provision that allows the minister to declare a wombat burrow protection zone, a geographical area where a person must not, without a permit granted by the minister, destroy, damage or disturb the burrow of a wombat. These provisions are focused on protecting safety, infrastructure and industry, and are not intended to enable unreasonable damage to wombat burrows, for example, in a natural environment outside these circumstances.

Landholders may have a reasonable need to destroy burrows from time to time where wombat burrows pose risks to human safety, stock, farming crops and machinery—as I said earlier, like harvesters and tractors—or infrastructure such as tracks or built structures. The Department for Environment and Water encourages a living with wildlife approach to how people think about and interact with wildlife.

Burrow destruction is rarely effective when undertaken as the only means of managing wombat impacts. Hence, the department recommends a range of methods to landholders. Non-lethal methods of management for wombats include electric fencing, fence alterations, wombat gates and marking burrows. While the department encourages the use of non-lethal methods of wombat management, it may issue a person a permit to destroy wildlife when wombats, and indeed protected wildlife generally, are causing or likely to cause damage to the environment, crops, stock, property or environmental amenity, including built structures, or are posing a safety risk or hazard to people or industry.

Where destruction is permitted, it must be done in accordance with the relevant code of practice for humane destruction. Destroying burrows with the intent to destroy an animal is not an approved method of destruction and would likely be an offence under the National Parks and Wildlife Act and the Animal Welfare Act.

There is also an opportunity to increase compliance and education efforts to raise awareness of non-lethal methods of wombat management to reduce identified risks and impacts, inefficacy of destroying wombat burrows in isolation from other management methods to reduce risks and impacts to safety and machinery, and how to destroy a burrow in a manner that lessens the likelihood of an offence being committed. The Department for Environment and Water is currently developing communications to this effect that will be presented on its website and promoted to landholders.

The Hon. C. BONAROS (17:07): I rise on behalf of SA-Best to speak on the National Parks and Wildlife (Wombat Burrows) Amendment Bill 2022. It is no secret that farmers and landowners view wombats as a nuisance because of the damage to property and inconvenience to crops, agricultural machinery and land their burrows cause. However, this in isolation is no justification to inhumanely bury them because it is convenient, as has already been described in detail by the Hon. Tammy Franks, especially given the existence of a code of practice and framework specifically designed to deal with humane destruction practices.

Southern hairy-nosed wombats share the dual distinction of being a protected species under the National Parks and Wildlife Act 1972 while also being adopted as SA's fauna emblem on 27 August 1970. This demonstrates the pride of this state for our iconic biologically native wildlife, and to see an emblem, a protected species, being subjected to such treatment, namely being buried alive, is something that I think concerns all of us. The Hon. Tammy Franks said it best: that the legislation needs to be introduced as a necessity is shocking.

Southern hairy-nosed wombats, while considered pests by many, also play an important role in South Australia's ecosystem. Sadly, with their population in decline as much as 70 per cent over the past 10 years according to the Wombat Awareness Organisation, wombats are being fragmented and pushed into harsh arid environments, such as the Murray-Darling Basin. They are becoming more and more exposed to the agricultural areas they have not historically been observed in before.

They are traditionally solitary animals that share a warren or burrow system, meaning one wombat can borrow up to seven or more holes in one area of land, in particular during the summer months to avoid the heat, I am told. I am told also that they are most active from midnight to early morning, making the monitoring of their behaviour difficult for farmers and landowners, which further impacts this issue as a whole.

The relocation or rehabitation of wombats from their chosen environments can be fraught with issues due to wombats being, as I understand it, fiercely territorial and dominant with the risk of harm very high. So while there is no easy solution to the matter, ensuring wombats are protected adequately within the scope of the legislation and that permitted destruction of wombats or their habitat is done humanely seems a very sensible step in the right direction.

The damage caused by wombats to property can be significant and costly and warrant controlling actions to be taken which are currently available to farmers and affected landowners. I understand steps have been taken in recent years by the government to reduce property damage and mitigate wombat cruelty with integrated management systems such as wombat gates, designed to reduce pressure on fences as wombats move between warrens and foraging sites, or warren marking to reduce risk of damage to vehicles and machinery in allowing them to clearly navigate around the clearly marked warrens.

Measures like these, I understand, have been instigated as part of a broader strategy to encourage and promote a coexistence between human agricultural activities and wildlife. But, of course, and as has been pointed out, there are circumstances which do require the destruction of wombats and their burrows, and we have a framework for this to be done humanely but there are questions around the effectiveness of that.

Through subordinate regulations, applications, I understand, can be made to the Department for Environment and Water to obtain a permit for the lawful destruction of wombats and warrens, which are then subject to existing obligations under the Animal Welfare Act and the Firearms Act. There is also a code of practice for the humane destruction of wombats by shooting, published on the department's website. This framework does not appear to go far enough in terms of protecting wombats from inhumane and illegal destruction, as has been highlighted in this place, which brings us, of course, to the bill.

The conduct of burying wombats alive is one that I think disturbs all of us, but as a matter of convenience subverts the regulatory permit system and avoids scrutiny and liability under the Animal Welfare Act, and at its core is inhumane and without regard for the animal's wellbeing as a protected species. We are sympathetic in particular to the plight of farmers as well, and of agricultural landowners whose crop and machinery has been, and continues to be, manifestly damaged due to wombat habitation, and agree measures need to be taken to alleviate such damage through wombat controls.

I think the Hon. Emily Bourke has just spoken about the amendments that the government is proposing to try to strike a balance between the intended objective to protect wombats and their habitat from cruel and inhumane treatment or death on the one hand, while also allowing for the permitted destruction of wombat burrows where they pose a genuine risk to human safety, farming, crops and machinery or infrastructure such as tracks or built structure.

I do understand the operation of the government's amendments are not intended to derogate from the requirement of a person to comply with sections 51 and 68 of the act respectively. There is added protection built in by allowing the minister declare a wombat protection zone to establish a geographical area which requires a permit to destroy, damage or disturb the burrow of a wombat. While wombat control levers can be effective, the destruction of wombats and their habitats will not necessarily reduce the damage to farming and agricultural land, and it cannot always be determined if erosion or crop damage is solely caused by wombats, to be fair.

The amendments to the bill reinforce, as I understand, the humane treatment of wombats while also taking into consideration the prospective damage wombats and their system of warrens can inflict on agricultural land. The bill does not, as I understand it, limit any statutory rights afforded to farmers and landowners in lawfully carrying out destruction practices of wombats and burrows under the permit scheme already existing in the act.

Rather, it seeks to act as a further deterrent by issuing a strong punitive message and encouraging farmers and landowners to turn their minds to their actions when considering the necessary destruction of wombats and habitats. It makes clear that inhumane, illegal destruction practices such as life burial are not tolerated and certainly not in line with community expectations and certainly not in line with existing codes of practice that are already applicable. With those words, we look forward to the next stages of the debate and indicate our support for the second reading of the bill.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (17:15): The National Parks and Wildlife Act was enacted in 1972 to conserve and protect native wildlife and the environment in South Australia. Protective species provisions apply in South Australia throughout the act. The Animal Welfare Act 1985 prohibits cruelty to all animals with penalties for offences, including significant fines and imprisonment terms.

If someone intends to destroy a wombat burrow, they are required to do so in a manner that does not constitute an offence under sections 51 and 68 of the National Parks and Wildlife Act, of 'taking' or 'molesting' of protected fauna, or the offence of ill-treating an animal under the Animal Welfare Act.

The Hon. Tammy Franks's bill seeks to insert a new section into the National Parks and Wildlife Act to add further protections, creating an offence for destroying, damaging, or disturbing wombat burrows without a permit, carrying a maximum penalty of $5,000 or imprisonment for 12 months. I can understand the sentiments of this bill from the honourable member. I do not think there is anyone in this chamber who would condone the ill-treatment of southern hairy-nosed wombats—indeed, the ill-treatment of any animal, particularly that of our faunal emblem.

However, it is important that legislation which passes through this chamber adds value and not more bureaucracy and red tape. We must ensure that the work we do here is effective and delivers tangible benefits to the community and all the furry—and not so furry—creatures that we share with it. In a 2006 study on burrow use and ranging behaviour of the southern hairy-nosed wombat in the Murraylands by G.R. Finlayson et. al. it was found:

…that wombats generally used between one and five warrens (warrens being the system of burrows), preferred large warrens with a greater number of entrances and showed a preference for one or two warrens. Across the study period there was no apparent change in burrows used within warrens.

According to Matthews and Green in a study in 2012, individual southern hairy-nosed wombats use multiple burrows and up to 10 warrens, which allows them to cover different parts of their home range over a number of nights. This particular study tracked one individual wombat to 14 different burrows.

There are a number of things that landholders can do to look for signs of active burrows or warrens. Active burrows are often characterised by fresh cube-shaped droppings and scratch marks as well as freshly dug soil at the burrow entrance. Burrow activity can be confirmed by a landholder by placing sticks across an entrance and checking every day for at least a week to see if these sticks are disturbed.

My point here is that if a landowner has identified an inactive burrow, then they should be able to bulldoze that burrow. If this bill passes, it would require the landholder to obtain a permit prior to destruction of a wombat burrow, regardless of whether there are wombats present in that burrow. This increases the regulatory burden on both land managers and government agencies, without achieving any improvement in the existing protection for wombats under the National Parks and Wildlife Act and the Animal Welfare Act.

I do make the point, though, that if a landowner does bulldoze an inactive burrow, they do run the risk of the next wombat entering their property and burrowing in an even more inconvenient space. But let's be clear: that is their risk to take.

Under the current legislative framework of the National Parks and Wildlife Act, where a landholder intends to undertake destruction of wombats, the landholder must obtain a permit from the Minister for Climate and Environment and the destruction must occur in a manner which complies with the relevant code of practice to ensure humane destruction of the animal.

Under the Animal Welfare Act 1985, a person ill-treats an animal if that person: intentionally, unreasonably or recklessly causes the animal unnecessary harm; having caused the animal harm fails to take reasonable steps to mitigate the harm; kills the animal in a manner that causes the animal unnecessary pain; and unless the animal was unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible. The provisions to protect wombats and enable wombats and farming operations to coexist are already enshrined in legislation.

I note that the government has recently filed an amendment to this bill that makes provision for a landowner or person authorised by the landowner to destroy or disturb wombat burrows in circumstances where the burrow is causing or likely to cause damage to crops, machinery or infrastructure or may constitute a safety risk or hazard to people. Although this amendment would appear to improve the operation of the bill for farmers and land management, this provision will only apply in circumstances where the burrows are not in a wombat protection zone.

The amendment lacks detail as to how a wombat protection zone will be determined, except to say that it will be declared by the minister through notice in the Gazette. This could be cold comfort to farmers and land managers if there is not sufficient rigour around the process to declare a wombat protection zone and I look forward to understanding more about the amendment during the committee stage of the bill.

I return to the contribution that was made by the mover of the bill. The honourable member stated that it is estimated that hundreds of wombats are killed by being buried alive every year as their burrows are bulldozed and nothing is being done to prevent this. In referencing a 2017 incident, where the then department, now DEW, did not take any action after the report of wombats being buried alive was raised with the department, the honourable member notes, and I quote:

The inconsistencies and unwillingness to take action to rescue buried wombats was disappointing at best and continues to be disappointing today.

The issue is not a lack of legislative power, it is a perceived unwillingness to enforce those powers. We should not be amending legislation to, as the honourable member said, make it explicitly illegal to bury wombats alive. It is already illegal to do that and as a vet I am committed to doing what I can to improve the quality of life for all animals. I will uphold these commitments in this place; however, I do not believe this bill adds anything to existing legislation. The opposition will not be supporting this bill; however, we do intend to support the government's amendment as we consider that it assists to address some of the concerns that I have already detailed.

The Hon. T.A. FRANKS (17:22): I thank those members who have made a contribution: the Hon. Emily Bourke, the Hon. Connie Bonaros and the Hon. Nicola Centofanti. I do not think any of us would disagree in terms of compassion and care, particularly for wombats but for all animals in this state. As the Hon. Nicola Centofanti notes, it is already illegal to bury a wombat alive, yet hundreds have been without recourse and without clarity.

This bill was at the behest of the Wombat Awareness Organisation, with their frustrations over many, many incidents continuing to happen in this state, despite it being the letter of the law that to bury a wombat alive is illegal. I welcome the government's contribution and certainly will be supporting their amendments. I think their amendments find a compromise way forward, as the Hon. Connie Bonaros noted.

This is an issue of some consternation, and I note that the Law Society advice on this bill came not only from the Animal Law Committee but also the Country Practitioners' Committee, who could not agree with each other, which is no surprise. It is also no surprise that in this chamber we will not all be agreeing on the details of this particular bill or indeed what will be, yes, an added layer of bureaucracy, but I would call it an added layer of education as well and an ability to ease the enforcement. Where the law clearly has been broken, it will be made clearer by what we do today. With that, I commend the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. N.J. CENTOFANTI: I am just going to ask the honourable member a couple of questions. What stakeholders were engaged in the preparation of this bill, and has she sought any feedback from land managers, including farmers or traditional owners, about the impact this bill could have on their ability to manage a property and generate income?

The Hon. T.A. FRANKS: Thank you, the Hon. Nicola Centofanti. As I noted in my second reading contribution, this bill was at the behest of the Wombat Awareness Organisation, an organisation that I have worked with for some time, which was previously based in the Murraylands and is now in the Adelaide Hills. I commend the work of Brigitte Stevens and note also Bob Irwin's involvement in this particular matter in the early days of my time in this place, when wombats were buried alive without recourse and without consequence.

I note I have not had a conversation with any stakeholders with regard to the landholders. I am alive to the issues in terms of native title hunting, as was the Law Society's contribution, and I note that it has no impact on those native title rights for hunting.

Clause passed.

Clause 2.

The Hon. E.S. BOURKE: I move:

Amendment No 1 [Bourke–1]—

Page 2, line 11 [clause 2, inserted section 68AA(1)]—Delete 'A' and substitute:

Subject to subsection (2a), a

Amendment No 2 [Bourke–1]—

Page 2, after line 18 [clause 2, inserted section 68AA]—After subsection (2) insert:

(2a) A person does not require a permit under subsection (1) if—

(a) the burrow is outside a Wombat Burrow Protection Zone; and

(b) the person is—

(i) the owner of the land where the burrow is located; or

(ii) authorised to destroy, damage or disturb (as the case requires) the burrow by the owner of the land where the burrow is located; and

(c) the burrow is causing, or is likely to cause, damage to crops, stock, machinery or infrastructure (including tracks and built structures) or may constitute a safety risk or hazard to people.

The existing provisions in the National Parks and Wildlife Act 1972 and the Animal Welfare Act 1985 make it an offence to harm or ill-treat wildlife. For wombats, the intentional destruction of an inhabited burrow, or not taking reasonable steps to ensure that a burrow is vacant prior to destruction, could constitute an offence, as has been highlighted many times today.

The new section 68AA, as proposed by the Hon. Tammy Franks, creates a new permit system. As raised in my second reading contribution, introducing a permit system for the destruction, damage or disturbance of a burrow would increase the regulatory burden on landholders who might have a reasonable need to destroy a wombat burrow. It would also require a significant increase in resources to implement and administer the new permit system. National Parks and Wildlife Service rangers would need to conduct permit assessments, site inspections and approvals and undertake appropriate compliances for those applying to collapse burrows.

The government's proposed amendments are necessary to recognise that landholders sometimes have a reasonable need to destroy burrows where they pose a risk to human safety, stock, crops, machinery such as harvesters and infrastructure such as tracks and built structures. In these circumstances, it would not be necessary for a landholder to hold a permit, but they would still be required to comply with section 51 and section 68 of the National Parks and Wildlife Act and the Animal Welfare Act, which make it an offence to interfere with, harass or molest a protected animal.

Collapsing vacant burrows is currently an acceptable, non-lethal option for managing the impact of wombats. Other management options encouraged by the Department for Environment and Water include marking burrows and wombat-proof fences and gates, as was mentioned earlier. The other main amendments the government is proposing give power to the minister to declare wombat burrows protection zones. This would be declared by publication of a notice in the Gazette, which I will go into later on when I move those amendments.

The Hon. T.A. FRANKS: The Greens will be supporting these amendments and thank the Hon. Emily Bourke and also the Minister for Environment and Water and her staff for their assistance with this in terms of consultation and creating a way forward through compromise.

The Hon. N.J. CENTOFANTI: I have some questions in regard to the wombat protection zone. How will a wombat protection zone be identified by the minister?

The Hon. E.S. BOURKE: I understand that this is a common practice where a minister is given the ability to work with departments such as the Department for Environment and Water. An example of this is the powers issued to destroy wildlife delegated to wardens at locations and areas across the state. There are abilities and mechanisms within departments to work together to determine where these spaces would be.

The Hon. N.J. CENTOFANTI: Will there be any consultation with landowners and land managers who will be affected by a wombat protection zone, prior to that zone being declared through a notice in the Gazette?

The Hon. E.S. BOURKE: I would have to take that on notice to get further information for you, but in regard to this being a common practice that is undertaken, the Department for Environment and Water, I believe, would be the appropriate area to be looking into this. I would believe that they would do consultation with stakeholders, but again I am happy to get further information for you.

The Hon. N.J. CENTOFANTI: I have one final question in regard to the wombat protection zone: can a wombat protection zone be revoked?

The Hon. E.S. BOURKE: I will have to take that on notice. That can be discussed, I guess, between the houses.

The Hon. N.J. CENTOFANTI: I have one more question for the mover of the bill in regard to this provision. This provision provides protection for habitats for wombats rather than specific protection for the species. As has been discussed in second reading speeches, they are already protected under the National Parks and Wildlife Act 1972 by virtue of them being a rare species in South Australia. Is the member aware of any other jurisdictions that use this approach to protect habitat for specific species?

The Hon. T.A. FRANKS: To answer that particular question, I will note that legal advice from the Law Society talked about perhaps using the Planning, Development and Infrastructure Act and pointed to other jurisdictions where this might be a way forward. I did not look up whether there were protections for the habitat in a similar way for wombats in other states, but I would note that this in no way, as you have pointed out, stops the protections around the wombats themselves.

I would also say that probably what I should have done in this bill was increase the level of penalties for harming a wombat because in WA, for the same wombat that you have a penalty here of either $2½ thousand or $5,000, it is a $50,000 penalty. So I should have probably upped the penalties for the protection of the animals themselves at the same time as trying to address this situation of wombats being buried alive, where people then escape the penalty because you cannot actually tell whether the wombats are dying slowly underneath the ground.

Amendments carried.

The Hon. E.S. BOURKE: I move:

Amendment No 3 [Bourke–1]—

Page 2, line 24 [clause 2, inserted section 68AA(4)]—After 'Act' insert:

or any other Act or law

Amendment carried.

The Hon. E.S. BOURKE: I move:

Amendment No 4 [Bourke–1]—

Page 2, after line 28 [clause 2, inserted section 68AA(5)]—After the definition of wombat insert:

Wombat Burrow Protection Zone means an area declared by the Minister by notice in the Gazette to be a Wombat Burrow Protection Zone for the purposes of this section.

In doing so, this amendment and one of the other amendments to this that the government is proposing gives power to the minister to declare a wombat burrow protection zone, and this would be declared by publication of a notice in the Gazette, describing a geographical area where a person must not, without a permit granted by the minister, destroy, damage or disturb the burrow of a wombat.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. T.A. FRANKS (17:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.