Arts Law Information Sheet

Artwork made using Animal and Plant Material - South Australia

For many artists, plant and animal material form a central part of the artworks that they create. This can raise unique legal issues, as certain plants and animals are subject to strict laws in Australia that change depending on which state you work in.

In this information sheet:

  1. What the laws in South Australia mean for artists
  2.  
  3.  
  4.  
  5.  
  6.  
  7. Where did you find the plant or animal material?
  8. Is it a protected species?
  9. What are the prohibitions?
  10. Is there an exemption or defence that applies?
  11. Is a permit available?

For many artists, plant and animal material form a central part of the artworks that they create. This can raise unique legal issues, as certain plants and animals are subject to strict laws in Australia. This is a particularly important issue for Aboriginal and Torres Strait Islander artists who often use native seeds, feathers, skins, bones, grasses and woods in their artworks. It can also affect non-Indigenous artists wanting to create artworks using plant and animal matter.

For an example of how an artist’s creative practice can be affected see Arts Law’s interview with Gerard Geer.

At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) regulates the use of native species. For further information see Arts Law’s Information sheet – Artwork containing native and threatened species – Commonwealth. However, each State and Territory also has its own legislation and even if a species can be used in an artwork without breaching the Commonwealth legislation, there may nevertheless be prohibitions under the relevant state laws. This information sheet focusses on the impact of laws in South Australia.

What the laws in South Australia mean for artists 

The protection of native plants and animals in South Australia is governed by two laws: the National Parks and Wildlife Act 1972 (SA) (NPW Act) and Fisheries Management Act 2007 (SA) (FMA). These acts impact artists in two main ways as they:

  1. Restrict the taking or use of threatened or protected plants and animals from places in South Australia unless:

    1. a permit has been given; or

    2. they are used in non-commercial, domestic activities performed by Aboriginal people; or

    3. they are used in traditional non-commercial activities conducted by native title holders on their traditional lands; and

  2. Require a licence to be obtained before exporting or importing artwork incorporating threatened or protected species into or out of South Australia.

As a consequence the law in South Australia will impact the types of plant and animal materials artists can use in their artwork. The regime may also create issues for artists wishing to exhibit their work in galleries within South Australia, or who wish to sell their artwork to buyers within Australia.

At the time of writing, the National Parks and Wildlife Regulations are flagged for reform in 2017. The amendments are largely directed at simplifying the current scheme but may have an impact on fees and the protection status of several species such as the Ringtail Possum. For more information see: http://yoursay.sa.gov.au/decisions/yoursay-engagements-proposed-changes-to-south-australia-s-wildlife-regulations/about.

Example 1 –Jennifer Trask, making artwork from Animal Bones

Jennifer Trask is contemporary artist based in New York who carves intricate sculptures from animal bones. http://www.jennifertrask.com/Jennifertrask.com/Jt_Home.html

 

If Jennifer was making these sculptures in South Australia she would need to consider what type of animal bones she was using. If she used the bones of an animal protected under the NPW, for example an Echidna, she would not need to obtain a permit to collect, hold and use the bones, but would require a specialist permit to sell the artwork incorporating the bones However using the bones of a dingo, which is unprotected, would not require any form of permit.

 

 

 

  

  

  

  

  

Where did you find the plant or animal material? 

1.     Was it in a Commonwealth area 

It is important to know where you found the species. Commonwealth law requires a permit to kill, collect or export, certain species of plants and animals (or their parts e.g. feathers, fur, bones and teeth). However, the regime operates only within “Commonwealth areas” where South Australian laws do not apply. For further information regarding the Commonwealth scheme please look at the Commonwealth Information Sheet.

In South Australia, these are some Commonwealth areas:

  • all publically owned airports including Port Lincoln and Coober Pedy;
  • Commonwealth Marine Reserves in Murat, Western Eyre, Southern and Western Kangaroo Island, and Murray (visit Commonwealth Department of Environment Website for exact locations: http://www.environment.gov.au/topics/marine/marine-reserves);
  • South Australian coastal waters extending 3 nautical miles out to sea (5.5km) as well as coastal estuaries and riverbeds; and
  • Murray Mallee- Calperum Station and Taylorville Station.

Within these areas Commonwealth law protects:

  • Certain species of possum,  including the native Mountain Pygmy-possum and Leadbeater’s Possum;
  • Various kinds of species of South Australian plants, including Spiny Daisy, Coast Spider-orchid, Mount Compass Swamp Gum and Mount Compass Oak-bush; and
  • Certain species of native South Australian grass such as Eriocaulon carsonii (also known as Salt Pipewort or Button Grass), and Lomandra effusa (Iron-grass).[1]

If the plant or animal material is not taken or kept in a ‘Commonwealth area’ but is taken from elsewhere in South Australia, the state legislation will apply.

2.     Was it in a ‘protected area’? 

Any plants[2] and animals found in South Australia’s ‘reserves’,[3] wilderness protection areas’, ‘forest reserves’ and ‘wilderness protection zones’ cannot be collected for use in an artwork. This includes dead species as well as parts of plant and animal matter such as leaves, feathers and bones and covers native and non-native species and whether or not they have been classed as protected or threatened species. Generally, licences will not be granted in respect of plant or animal material in South Australia’s protected areas.

Protected areas in South Australia include:

  • Lincoln National Park;
  • Flinders Ranges National Park;
  • Coorong National Park;
  • Ferries-McDonald Conservation Park; and
  • Ferguson Recreation Park.

3.     Was the species harvested before the commencement of the Acts? 

South Australia’s Department of Environment, Water and Natural Resources(DEWNR) has indicated that if the plant or animal species was harvested before the Acts were introduced, then the Department may exercise a discretion not to prosecute. For example, it may elect not to pursue a person advertising to sell on Gumtree the skull of a whale if the skull was collected from a beach in South Australia in the 1960s before the NPW Act commenced. However, anecdotal evidence suggests that it is always wise to seek advice from the DEWNR in advance if possible given the time and expense involved in proving such matters and defending charges. 

Is it a protected species? 

For plant or animal material collected outside Commonwealth areas and South Australian protected areas, the next issue to consider is whether the species is classified as a ‘protected’ species under South Australian law. The National Parks and Wildlife Act 1972 (SA) (NPW Act) lists protected plants, animals and marine mammals, meanwhile the Fisheries Management Act 2007 (SA) (FMA) list protected marine species.  

1.     Animal species 

All native and non-native mammals, birds and reptiles are ‘protected animals’ unless listed in schedule 10 of the NPW Act as an ‘unprotected species’. For example, Dingoes, Galahs, and Budgerygah are not protected in SA.[4] Certain ’protected animals’ are categorised further as ‘endangered’,[5] ‘vulnerable’,[6]or ‘rare’.[7]For example, Feathertail Gliders and Platypuses are listed as ‘Endangered species’[8] meanwhile the Slender-billed Thornbill is a ‘Vulnerable species’.[9]. All of these “listed” species can be seen in Schedules 7, 8 and 9 of the NPW Act.

The definition of ‘animal’ appears to mean live animals only so that it is arguable that certain animal ‘by-products’ such as shed or discarded animal parts including snake skins, echidna quills, feathers and fur may be collected and used without a permit, even if the animal itself is protected.[10] However, a licence would be required to sell any resulting artworks. Fish, insects, butterflies, spiders, scorpions and other invertebrates[11] are outside the scope of the Act as they are not “mammals, birds or reptiles”.

2.     Plant Species 

Under the NPW Act, all “native plants” (including flowers, seeds and leaves) are protected.[12] Similar to the protected animal species, certain plant species are listed as ‘endangered’,[13] ‘vulnerable’,[14] and ‘rare’[15]. This includes dainty maiden-hair, club spear-grass, and several types of wattle.  Lists of the endangered, vulnerable and rare plant species can be viewed in Schedules 7, 8 and 9 of the NPW Act. The difference between these categories of plants is the severity of the penalty for any offences under the NPW Act.

Non-native plants are outside the scope of the Act and the DWNR website suggests that it takes the view that non-vascular plants and fungi, even if native, are not protected.

3.     Marine mammals 

The NPW Act also provides protection for “marine mammals” which are defined to include seals, sea lions, dolphins and whales.[16]These same species are also protected under the FMA as “aquatic mammals”.

4.     Marine Species Protection under the Fisheries Management Act 

Commonwealth law applies to waters extending beyond 3 nautical miles (5.5km) out to sea. The law in South Australia will govern the waters from the low water mark up to 5.5.km out to sea.[17]

The FMA provides protection for two types of marine species:

  1. Aquatic mammals—seals, sea lions, dolphins and whales; and
  2. Aquatic resources of a protected species—this includes certain species of marine and freshwater fish such as pygmy perch, sand crabs, and white sharks.

South Australia’s Fisheries and Aquaculture department take the view that ‘aquatic mammals’ under the FMA only concerns mammals that are alive.[18] If so then if artists are only collecting found parts such as bones, teeth or skin or corpses of aquatic mammals, only the NPW Act is relevant. However, the wording of the legislation means that the position is not entirely clear. The full list of species protected under the FMA can be accessed here: http://www.pir.sa.gov.au/fishing/protected_species#toc0.

What are the prohibitions? 

If you are using a species listed as either protected or threatened under South Australian law, there are a number of strict offences that may apply. For example, if an artist were to collect and use feathers of a threatened bird species it would be an offence to sell or exhibit the completed artwork without a licence.

1.     Protected animals 

Under the NPW Act it is an offence to take,[19] possess,[20]keep,[21] sell or give away,[22] or import or export across state borders,[23] a protected animal, or its eggs. This would apply to artworks containing any parts of these protected species. Penalties for these offences range from a fine of $2,500 (keeping and sale of protected animals) up to a fine of $10,000 and/or imprisonment for 2 years (illegal possession of animals).

The severity of the penalty may also vary depending on the type, and number of species involved. For example, the penalty for taking an ‘endangered’ animal is a maximum of $10,000 or imprisonment for 2 years compared with a maximum penalty of $5,000 or imprisonment for 12 months for taking a ‘rare’ species. Further, additional fines may be imposed on the basis of the number of animals involved in the commission of the offence.[24] For example, you may be fined an additional $750 for each animal of a vulnerable species involved in the commission of an offence.

The Act defines the “carcass” of an animal as:

 “the whole or any part of—

            (a)         the flesh or internal organs of the animal; or

            (b)         the feathers, wool, hair, skin or hide of the animal; or

            (c)         the bones, horns or hooves of the animal”.

 

and contains a specific offences in relation to selling or giving away the carcass of a protected animal. There is no mention of carcasses in the provisions restricting the ‘taking’ of protected species. This suggests that it is not an offence in South Australia to collect roadkill, or bones, horns, feathers, wool, or hair which is not part of a live animal.[25]However, it would be an offence to possess such materials if not legally obtained[26]. Further, even if legally obtained, it is an offence to offer for sale, sell or give away any artworks incorporating such materials.[27]

2.     Protected plants 

It is an offence to take,[28] sell or give away,[29]a native plant from any reserve, wilderness protection area or public land.[30] Again, the penalty would vary depending on the type of native plant involved but the maximum penalty would be $10,000 or imprisonment for 2 years[31] for an endangered species.

Meanwhile, on private land it is an offence to take a native plant that is a prescribed species (vulnerable, endangered or rare).[32]It is also prohibited to take any native plant from private land without the consent of the land owner.[33]This may result in a $1,000 fine.

Finally, a person must not have in their possession or control a native plant that has been illegally taken.[34]This may result in a maximum fine of $10,000 or imprisonment for 2 years in the case of a native plant of an endangered species. Thus the owner of an artwork containing pieces of an endangered plant could face criminal penalties.

 

Example 2–Collecting and incorporating plants into an artwork

An artist has been collecting parts of plants found in national parks and around her suburb. She is particularly interested in using the leaves and bark of Menzel’s wattle.

 

Menzel’s wattle is a protected plant listed as ‘vulnerable’ under South Australian law and is also protected under Commonwealth law.

 

The artist cannot take the plant from either a Commonwealth area or an area ‘protected’ under South Australian law. For example, the artist would not be able to collect or use any Menzel’s wattle that was found in Ferguson Recreation Park.  The artist should either collect it from private property (with the owner’s permission) or apply for an ‘individual, community group, commercial or botanic garden’ permit which would allow her to collect Menzel’s wattle from any areas outside Commonwealth and protected areas and incorporate it into artworks for sale. She should make sure to include the licence number on any artwork made.  

 

3.     Protected marine mammals 

It is prohibited for a person to have in their possession, or intentionally take a marine mammal (dead or alive), or its eggs. [35] It is likely that this prohibition would include the discarded bones and teeth of such species. The maximum penalty for taking a marine mammal is a fine of $100,000 or imprisonment for 2 years.

4.     Protected Marine species 

Under the FMA it is an offence to take or injure an aquatic mammal, or the aquatic resource of a protected species.[36]This may result in a fine of $100,000 or imprisonment for 2 years. Similarly, it is an offence to sell or purchase an aquatic resource that was taken illegally (ie without authority under the FMA to do so).[37] The maximum penalty for this offence would be $50,000 or imprisonment for 4 years.

Example 3 –Shark’s Teeth and Josephine’s Gallery Coober Pedy

Sharks teeth and jaws can often make beautiful jewellery or sculptures. However, as Mr and Mrs Brennan-Kuss discovered, selling sharks teeth in South Australia can be risky!

 

In July 2010, Mr and Mrs Brennan-Kuss, owners of Josephine’s Gallery in Coober Pedy were charged with breaching the FMA by illegally possessing and selling a “protected aquatic resource”, a set of Great White shark jaws and teeth. Fortunately for the couple, because the shark’s teeth and jaw had been taken from the ocean before the FMA had been enacted (2007), their conviction was overturned on appeal.

 

Artists should be very careful about incorporating protected marine species into artworks. While it may not be an offence to use or sell the jaw or teeth of a great white shark caught before 2007, it may not always be easy to tell where the specimens came from and the penalties for such offences can be very severe. Fines can range up to $250,000 for corporations or $50,000 or imprisonment for 4 years for natural persons.

 

 

Is there an exemption or defence that applies? 

If you are using, or have incorporated into an artwork, any part of a species which is protected under South Australian law, liability may be avoided if you fall within one of the exemptions, or if a defence can be established.

1.     Exemptions for Aboriginal and Torres Strait Islanders 

There are two key exemptions available for Aboriginal and Torres Strait Islanders.

Firstly, the South Australian laws are subject to the Native Title Act 1993 which provides that holders of native title rights cannot be restricted by State law from engaging in certain activities on land over which native title has been granted.[38]To fall within this exemption, the native title holder must be exercising a native title right or interest (i.e. the use must have a traditional basis), and the resource must be taken for the purpose of satisfying the native title holder’s personal, domestic or non-commercial communal needs. It is unclear if this could be relied upon to cover artwork made for commercial sale.

For example, the following native title interests exist in South Australia:

  • The Adnyamathanha People hold native title over approximately 41, 085km  of land in the Flinders Ranges and adjoining plains, north east of Port Augusta;[39]
  • The Gawler Rangers People hold non-exclusive native title over approximately 34,000 km of land and waters in the Gawler rangers area of South Australia;[40] and
  • The Arabana people hold native title over approximately 68,823 km of land in the central north of South Australia.[41]

Secondly, there are a number of ‘domestic use’ exceptions under the NPW Act. In particular, Aboriginal and Torres Strait Islanders are exempt from offences relating to taking protected animals or native plants from lands other than  protected areas, provided that the animal, egg or plant is taken for food or solely for cultural purposes.[42]  Aboriginal and Torres Strait Islanders will also be exempt from such offences in relation to protected areas if the species are taken for food or cultural purposes and there is a proclamation in force permitting these species to be taken.[43] The following reserves have been proclaimed as reserves where an Aboriginal or Torres Strait Islander may take a protected animal, egg or native plant:[44]

  • Namungari Conservation Park;
  • Nullarbor National Park;
  • Nallarbor Regional Reserve; and
  • Yumbarra Conservation Park

For further advice about what can and can’t be done on these reserves contact the Fauna Permit Unit of DEWNR on (08) 8124 4972.

Meanwhile, under the FM Act, a very limited exemption is provided for Aboriginal traditional fishing under a traditional fishing management plan.[45] Information on traditional fishing management plans does not appear to be publically available, but the Department of Primary Industries and Regions in SA (PIRSA) would be the best point of contact (on (08) 8226 0900). Despite the limited scope of this exemption under the FM Act, as above, Aboriginal fishers are entitled to take aquatic resources for non-commercial purposes outside the requirements of the FM Act, in accordance with a Native Title exemption.[46]

2.     Defences 

There are a number of defences available under the Acts. The most relevant defences available for an artist who is making art incorporating threatened or protected species are:

  • That the plant or animal material was not taken intentionally or negligently;[47] or
  • Was done in pursuance of a permit.

Is a permit available? 

One of the main ways of avoiding liability for an offence is to obtain a permit. While there are some permits available, unfortunately obtaining a permit as an artist is not easy.

1.     Permits for protected animals 

There are several types of permits available for animal material from a protected species under the NPW Act[48] including:

  1. A basic permit to keep/sell protected animals;
  2. A specialist permit to keep/sell protected animals;
  3. A permit to keep/sell the eggs of a protected species; and
  4. Import and export permits.

Arts Law’s discussions with the DEWNR suggest that the most applicable permit for artists wanting to work with protected species would be the specialist permit to keep and sell protected animals. Unlike the basic permit, this permit would allow an artist to use a wider variety of animal species. Further, this permit would allow an artist to use any protected animal, whether vulnerable, endangered, or rare and would cover activities such as collecting roadkill. However, this permit would not cover marine mammals. The fee for such a licence is currently $123.00 for 1 year (as at July 14 2016), and the application form can be accessed here: http://www.environment.sa.gov.au/licences-and-permits/animals-in-captivity-permits.

Once a licence is obtained, the licence number should be displayed on the final artwork-for example, by writing the licence number on the back of the artwork. This would mean that the artwork could be exhibited or purchased by third parties within South Australia without requiring the exhibitor or purchaser to obtain an additional licence. However, once the licence expired, the purchaser would be required to renew it in order to continue to hold the artwork in South Australia.

Additionally, a separate import and export permit would be required if the artwork was going to be transported out of  South Australia.

Example 4 –The exhibition

An artist has successfully obtained a specialist permit to incorporate feathers from the endangered Orange-bellied Parrot into sculptural works that are included in an exhibition in Adelaide. At the show, one work is bought by a collector who lives in Tasmania and another by a collector who lives in London. One work is purchased by MONA in Hobart.

 

MONA will need to renew the specialist permit for as long as it holds the work in Tasmania. An export licence under the NPW ACT will be required to ship the artwork to the buyer in Tasmania. Additionally, the law in Tasmania will need to be considered and an import licence under Tasmanian law may be required. When transporting artwork overseas, the Commonwealth, EPBC Act must be considered. Because the Orange-bellied Parrot is also protected under the EPBC Act, a licence to export the work overseas will also be required. See the Commonwealth fact sheet here.

  

  

  

  

  

  

  

  

2. Permits for protected plants 

If the plant is a native species protected under the NPW Act, there are several types of permits available;[49]

  1. A bush food collection permit;
  2. A individual, community group, commercial or botanic garden permit;
  3. A ‘Class A’ plant collection permit;
  4. An ‘other’ plant collection permit; and
  5. An annual return for the collection of native plant materials.

The most relevant permit for an artist wanting to work with protected plant species is likely to be the ‘individual, community group, commercial or botanic garden’ permit. This would allow an artist to use any protected plant material, including vulnerable, endangered or rare species taken from outside a protected area. The licence number should be displayed on the final artwork. Currently, this permit is free of charge (as at 14 July 2016) and application forms can be accessed here: http://www.environment.sa.gov.au/licences-and-permits/Plant_permits.

 

Unlike animals, the import/export of protected plants into and out of South Australia is not prohibited under the NPW Act. However other legislation may impose restrictions such as if the plant material poses a ‘biosecurity’ risk.

Arts Law’s discussions with the Department of Primary Industries and Regions (DPI) suggest that the requirements for importing plant material will depend on where the material has come from. For example, the movement of cut flowers will be unrestricted from Tasmania, but may require a Plant Health Certificate if from Western Australia.  Given the complexity and ad hoc nature of the requirements for the import of protected plants, the best option is to contact the DPI directly, prior to the transportation of any artwork incorporating plant species (contact number: (08) 8226 0995)

The export of an artwork from South Australia to another state in Australia will also require consideration of the laws in the receiving state.  Further information on the import and export of materials between states in Australia can be accessed via this website: http://quarantinedomestic.gov.au/destination-south-australia.html.

3.     Permits for marine species 

There are several permits available under the FMA. However, most would not be applicable for an artist seeking to use or sell protected marine species incorporated into an artwork. The most relevant permit would probably be to make a ‘general application’ to undertake activities that would not usually be allowed.[50] These are assessed on a case-by-case basis and will depend on how consistent the proposal is with the objectives of the FMA.[51]  The application fee for this permit is $142.00 (as at 15 July 2016) and forms can be accessed here: http://www.pir.sa.gov.au/__data/assets/pdf_file/0020/221942/Ministerial_Exemption_Form.pdf.  

 

[2] National Parks and Wildlife Act 1972 (SA) s 47 (unlawful taking of plants).

[3] National Parks and Wildlife Act 1972 (SA)  s 5 definition of ‘reserve’ includes  any national park, conservation park, game reserve, recreation park or regional reserve constituted under this Act.

[4] Ibid schedule 10 (“unprotected species”).

[5] Ibid Schedule 7.

[6]Ibid Schedule 8.

[7] Ibid Schedule 9.

[8] Ibid Schedule 7 (‘Endangered species’).

[9] Ibid Sechdule 8 (‘Vulnerable species’).

[10] National Parks and Wildlife Act 1972 (SA) s 58 (3) (only an offence to” keep or sell” carcass of protected animal- not an offence to “take” a carcass (carcass not included in s 51 offence of “taking”) and s 5 definition of carcass.

[11] Department of Environment, Water and Natural Resources,  Managing natural resources: State, Government of South Australia

http://www.environment.sa.gov.au/managing-natural-resources/plants-and-animals/Threatened_species_ecological_communities/Conservation_status_of_threatened_species/State.

[12] National Parks and Wildlife Act 1972 (SA) s 47.

[13] Ibid Schedule 7.

[14] Ibid Schedule 8.

[15] Ibid Schedule 9.

[16] Ibid s 5.

[18] This advice was based off the definition of “aquatic mammal” in the Fisheries Management Act 2007(SA), which is-- "aquatic mammal" means a seal or sea lion (order Pinnipedia) or a dolphin or whale (order Cetacea).

[19] National Parks and Wildlife Act 1972 (SA) s 51(1)

[20] Ibid s 60.

[21] Ibid s 58(1).

[22] Ibid s 58(3).

[23] Ibid, s 59.

[24] Ibid  s 74.

[25] National Parks and Wildlife Act 1972 (SA) s 51(1) (does not include “carcass” in the offence).

[26] Ibid s 60

[27] Ibid s 58(3).

[28] Ibid s 47.

[29] Ibid s 48.

[30] Ibid, s 47(1).

[31] Ibid, s 47(3).

[32] Ibid, s 47(2).

[33] Ibid, s 47(4).

[34] Ibid s 48A.

[35] National Parks and Wildlife Act 1972 (SA), s 51(1) and s 60.

[36] Fisheries Management Act 2007 (SA) s 71.

[37] Ibid s 72.

[38] Native Title Act 1993 (Cth) s 211.

[42] National Parks and Wildlife Act 1972 (SA) ss 68D(1), (2) and (6).

[43] National Parks and Wildlife Act 1972 (SA)  s 68D(3),(4, (5) and (6).

[45] Fisheries Management Act 2007 (SA) s 60.

[47] National Parks and Wildlife Act 1972 (SA) ss 47(6)(unlawful taking of native plants); 51(2) (taking of protected animals etc);

[50] Fisheries Management Act 2007 (SA) s115.

[51] Ibid s 7. 

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

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