Legal protection of kangaroos
In Australia the legal protection of animals is largely the responsibility of State and Territory Governments. As a result, primary legislation for animal protection differs between each jurisdiction. A point in common, however, is that no primary legislation adequately protects kangaroos from cruelty.
The Code of Practice for the Humane Shooting of Kangaroos and Wallabies
Welfare standards for the commercial killing of kangaroos detailed in the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Commercial Purposes (herein the Code) are not enforced.
Kangaroo shooting occurs in remote and regional areas far from the scrutiny of government regulatory agencies and the public. Contrary to claims, the kangaroo industry is not well regulated and there are flaws and gaps in the legal framework to protect kangaroos. Meaning there is a lack of monitoring and compliance of kangaroo killing so that concerned members of the public cannot be assured that kangaroos experience good welfare. This was confirmed in the finding no. 5 of the NSW Parliamentary Inquiry into the Health and wellbeing of kangaroos and other macropods in New South Wales
"That there is a lack of monitoring and regulation at the point-of-kill during both commercial and non-commercial killing of kangaroos".
Regulatory agencies do not monitor kangaroo kill sites and consequently cannot enforce the Code and therefore fail to protect kangaroos from intentional harm.
Kangaroos and the law
The shooting kangaroos is only permitted under ‘licences to harm’. Although the licensing regime is regulated under a different statute – the Biodiversity Conservation Act 2016 – the conditions or requirements of a licence do not override laws such as the Prevention of Cruelty to Animals Act 1979.
To date there have been no known investigations into or proceedings against shooters for failing to comply with animal welfare laws in the course of shooting kangaroos. This does not, however, indicate compliance with these laws. It is in fact impossible to determine whether animal welfare laws are complied with because kangaroo shooting is not monitored by animal welfare officers.
Commonwealth government responsibility for kangaroos
The Commonwealth government has a limited role in dealing with issues relating to animals (including wildlife) because it does not have a clear legislative power to do so under the constitution.
Instead, it relies on the external affairs power (S51 (xxix)), the trade and commerce power (S51(i)) and the quarantine power (S51(ix)). The trade and commerce power allows the Commonwealth to legislate in relation to the import and export of wildlife specimens and has done so in the Environment Protection and Biodiversity Act 1999 (The EPBC Act) which provides an overall framework for environmental protection.
This protection includes the protection of Australian native wildlife in accordance with Australia’s obligations under CITES. Under that framework, each of the states must obtain Commonwealth approval to export wildlife products, including kangaroo meat and skins.
These powers also mean the Commonwealth government is able to impose national animal welfare standards in relation to wildlife. These standards include two National Codes of Practice for the Shooting of Kangaroos and Wallabies, one that applies to the commercial industry and one that applies to non-commercial (“damage mitigation”) killing of kangaroos.
State Government responsibility for kangaroos
The State governments have responsibility for wildlife within their jurisdictions and each state has enacted legislation and regulations which govern wildlife.
These state wildlife laws were enacted in the mid-1970s following evidence that the uncontrolled killing of red kangaroos across Australia was pushing that species to the brink of extinction.
State wildlife laws have two main purposes.
1) They establish procedures to regulate the protection and conservation of wildlife;
2) Permit the lethal control of wildlife that impact human activities, including economic activities and the “use” of wildlife for commercial purposes.
Damage mitigation permit systems and Kangaroo Management Plans
Under each of the state wildlife laws, the protection of wildlife is subject to a system of licenses, permits and authorisations.
One of these authorisations involves permission to harm or kill otherwise protected wildlife for “damage mitigation” purposes where wildlife is alleged to be damaging farm infrastructure such as fencing or competing with stock for pasture or water.
These laws also permit the operation of the commercial kangaroo industry under “Kangaroo Management Plans”.