A QUT law academic has called for a test case to be brought under legislation enacted in the early 1990s to save the habitat of koalas and other endangered and threatened animals from the ravages of development.
QUT senior law lecturer Alastair MacAdam said the Department of Environment and Resource Management should use section 88 of the Nature Conservation Act 1992 to prevent developers from destroying koala corridors and the habitats of other animals by clear-felling, broadacre land for new housing estates.
He said the meaning of the word "take" in section 88(2) of the Act which holds that "a person must not take a protected animal" must be tested.
"In the US there is a Supreme Court ruling that 'take' is not restricted to physically removing an animal it also includes harming the habitat of a species," Mr MacAdam said.
"It would appear that in our legislation the words with which 'take' is associated seem to be designed to give a wide measure of protection and is, therefore, open to an identical interpretation as that given by the US Supreme Court in 1995 and should be tested.
"The department's failure to test this clause allows developers to remove koalas and relocate them instead of leaving a corridor of trees so they can safely move between food trees.
"Although the decision of the US Supreme Court is not strictly binding on Queensland courts because it comes from another jurisdiction, it would be a highly persuasive decision and in my view it will almost certainly be followed by Queensland courts."
Mr MacAdam brought and won a 1970s case to protect local bushland that has since become a reserve.
He said the Act's defence for the "taking" of a protected animal was that it could "not have been reasonably avoided".
"The complete destruction of habitat can reasonably be avoided. But everyone is passing the buck so that it looks as if the developers are calling the shots," Mr MacAdam said.
"The State Government takes the line that if a development is approved by a local council it cannot be overridden. That is not correct. All approvals must comply with the laws of Queensland including section 88."
Mr MacAdam said the Government had brought back the old Bjelke-Petersen era power of "ministerial rezoning" except it was now termed "call-in powers" whereby the government takes over the planning process from local authorities and courts and has it done by the Co-ordinator General, a government official.
"The Government seems to be prepared to use these powers principally for the benefit of developers but won't use its clear powers under section 88 to protect endangered animals and their environment.
Mr MacAdam said he was not against development.
"What I am concerned about is Government taking the easy 'relocation' option. As I understand it, koala experts say that once koalas are relocated they try to return to their original area which, if it has been clear-felled, leaves them with no option but to cross roads and be run over or travel on exposed ground and fall prey to dogs and other predators."
Media contact: Niki Widdowson, QUT media officer, 07 3138 1841 or email@example.com.
** High res pic of Mr MacAdam available for media use.