Problem Scenario

On 10 April 2020 the Commonwealth Parliament passed the Pollinators Protection Act 2020 (Cth) ('the Act').

In her second reading speech on the Bill in March 2020, the Minister for Agriculture said:

The decline in recent years in the numbers of insects generally, and especially those insect species that act as pollinators, is of serious concern for both the environment and for the economy. The science consistently tells us that the numbers and variety of insect pollinators including bees and other insects are in steep decline. Many Australian crops rely on these pollinators to ensure high yields and profitable businesses.

Our pollinator bees are in decline worldwide. We need to protect all colonies of bees. This includes the more profitable introduced honey bees that live in bee hive boxes as well as colonies of our native Australian bees that live in tree hollows of native trees. Native bees are not so popular with beekeepers. Some beekeepers have actively sought to destroy native bees or their habitat. Landowners who, in anticipation of this legislation, have in the past few months been eradicating native trees with tree hollows will be thwarted and now punished.

Agricultural landowners will also be required to ensure the protection of colonies of pollinator species through the modification of their usual commercial weed control activities such as herbicide spraying and the unnecessary, excessive or inappropriate use of pesticides or other chemicals. Departmental officers will also be empowered to attend premises and to inspect and investigate as needed with the permission of the landowner.

The explanatory memorandum to the bill includes the following statement:

'The purpose of section 4 is to protect colonies of insects.'

Assume that in 2007, the phrase 'disturbs, damages or destroys' in the Insect (Agriculture) Protection Act 2006 (Cth) was interpreted by the High Court of Australia to include 'kills'.

The new Act is a relatively short piece of legislation, as follows.

Pollinators Protection Act 2020 (Cth)

AN ACT to ensure the conservation of habitat and the protection of natural and naturalised colonies of insects that pollinate crops used for food production within Australia.

Section 1 Commencement

This Act commences on 10 June 2020.

Section 2 Definitions

Within this Act:

colony means two or more organisms of the same species living in close association with, or connected to, one another.

habitat includes a home or shelter or other place.

insects includes native bees and introduced bees, wasps, beetles and other winged pollinators.

Section 3 Protection of the natural habitat for a colony of insects

Any person who, at any time, is found to have disturbed, damaged or destroyed the natural habitat for a colony of insects will be guilty of an offence and liable to imprisonment for a period of up to five years or a fine of up to $10 000.

Section 4 Protection of a colony of insects

Any person who disturbs, damages, or destroys insects is guilty of an offence and liable to imprisonment for up to ten years or a fine of up to $50 000.

Section 5 Powers of investigation

Officers employed by the Commonwealth may, at any time, having received permission in writing, attend premises for the purpose of investigating a potential offence under this Act.

- End of Act -

Instructions: Answer all of Question 1, 2(a) and 2(b). All questions are compulsory. There is no choice.

In formulating your answer assume that all legislation is valid under the Constitution.

Question 1

A corporation, Hunnybees Pty Limited ('Hunnybees') owns 400 hectares of land. Hunnybees has 40 bee hive boxes that have historically housed colonies of introduced bees on its property. In late 2019 Hunnybees notices that their colonies of introduced bees are dying off and that Australian native bee colonies have taken over and become established in the hive boxes. Hunnybees is aware that the new legislation to protect native bees and native bee habitat is being prepared to be enacted. On 2 April 2020 Hunnybees knocks down and destroys a number of large native trees that were situated on their land. Many of the trees contained tree hollows suitable for native bees, although none of the tree hollows contained native bee colonies at the time the trees were knocked over. On 11 June 2020 Hunnybees also destroys their 40 bee hive boxes including killing the associated native bee colonies.

Could Hunnybees be found to be guilty of an offence under section 3 ONLY of the Act for each of its actions on 2 April 2020, and 11 June 2020? Do not consider whether Hunnybees has committed any offence under section 4.

Question 2(a)

On the evening of 12 June 2020 Simon notices an unusual cloud of many thousands of introduced bees swarming into the eaves of the house that he owns in Canberra. Simon's 20 year old daughter who lives at home is allergic to bee stings.

In an attempt to stop the bees coming into his house overnight Simon finds an old chemical spray in his shed and sprays insecticide beneath the eaves. On the morning of 13 June 2020, Simon notices that he has killed about 100 bees. The rest of the swarm remains in the eaves.

Is Simon guilty of an offence under section 4 of the Act for the death of the 100 bees? Do not consider whether Simon has committed an offence under section 3 of the Act.

Question 2(b)

Trevor works for the relevant Commonwealth Department. He hears from another source (a concerned neighbour) about the death of some bees at Simon's house overnight and the actions that Simon took. Trevor decides to investigate further, so he leaves a voice-mail message for Simon requesting permission to visit, also providing his mobile number for call back. Simon replies with a text message consisting of a thumbs up and a smiley face and no other characters or message. Simon is not at home at the time of Trevor's visit but Trevor opens a side gate and walks around the perimeter of the house and looks in Simon's wheelie bins.

Advise whether Trevor's actions were lawful under section 5 of the Act. Do not advise on whether Trevor may be liable for any other types of legal actions that you may know.