The decision of the Department on each request for authorisation is affirmed.

1. Mr Hoser, the applicant in these proceedings, is a snake handler. He is self-taught and regards himself as an expert.
2. He runs a business called "Snakebusters". He does demonstrations at shopping malls, schools and the like, showing his snakes and reptiles. He has a commercial wildlife demonstrator's licence and has held one since February 2004.
3. Such licences are issued under Part III of the Wildlife Act 1975. Section 22 gives the Secretary power to license a person to do all or any of the following :

(b) buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process or display wildlife.

1. Section 22(3)(b) relevantly says such a licence :

(b) is subject to any conditions, limitations and restrictions -

(ii) that the Secretary imposes on the licence or on that category of licence;

1. Prescribed conditions are set out in Division 3 of Part 6 of the Wildlife Regulations 2002. A Wildlife Demonstrator Licence is subject to Regulations 41 and 42 which comprise Division 3. They say, relevantly for this proceeding -

41. Entitlements of a Wildlife Demonstrator Licence

A Wildlife Demonstrator Licence authorises the licence holder -

(a) for the purpose of promoting an understanding of the ecology and conservation of wildlife, to display any taxon of wildlife listed in Schedule 3, 4 or 5 or specified by the Secretary in the licence -

(i) to the public in travelling displays or demonstrations or other temporary displays or demonstrations; and

(b) ...

(c) for the purposes of paragraph (a) or (b), to possess, keep, buy, sell or dispose of any such wildlife.

1. Conditions of a Wildlife Demonstrator Licence

(1) It is a condition of a Wildlife Demonstrator Licence that the licence holder must -

(f) display wildlife in circumstances that minimise the chance of escape of any wildlife; and

(g) display wildlife in circumstances that minimise the risk of injury to any person; and

(h) not allow dangerous or venomous wildlife to be handled by persons other than the licence holder or a person who is the holder of a relevant Assistant's Licence, without obtaining the prior written approval of the Secretary; and

(i) ensure that wildlife held in conjunction with this licence is under the direct supervision of the licence holder or a person who is the holder of a relevant Assistant's Licence at all times while the wildlife is being demonstrated.

1. Under s 22(3)(b)(ii), such licences are subject to conditions issued by the Secretary. With effect from 30 June 2007, revised conditions applying to all Commercial Wildlife (Wildlife Demonstrator) Licences were issued. The licences are now subject to 22 conditions. Three of those are relevant for this proceeding. As I understand it, these three conditions are new conditions which came into effect from 30 June 2007.

Condition 12 - Venomous snakes (whether or not the individual specimen is capable of a venomous bite) must not under any circumstances be handled or touched by any person other than the holder of this licence or their licensed Assistant without the prior written approval of the Secretary.

Condition 13 - Possession and demonstration of wildlife under this licence must be conducted in a manner and proximity which minimises the risk of injury to any person. Where venomous snakes (elapids) are involved, the demonstration must not be conducted closer than 3m to the audience, except where the licence holder is working in a pit which ensures that members of the public cannot approach, touch or handle the snakes.

Condition 14 - Where venomous snakes (elapids) are involved, only one venomous snake must be demonstrated at a time and all other venomous snakes (elapids) not being demonstrated must be confined to secure enclosures constructed to prevent escape, injury to the public and access by unauthorised persons, except where the licence holder is working in a pit which ensures that members of the public cannot approach, touch or handle the snakes.

1. Mr Hoser is aggrieved that those conditions have been imposed. On 31 January 2008, he made a request to the Director, Department of Sustainability and Environment, for authorisation under s 28A of the Act for the following :

1 - Permission to hold more than one snake at a time of any taxa, when demonstrating provided that neither the handler nor the public is placed at undue risk.

2 - Permission to approach the public closer than three metres when demonstrating venomous species of snake, provided that neither handler or public is placed at undue risk.

3 - Permission to hand non-venomous reptiles to the public to be handled, including those that have been de-venomised permanently (venomoid) and are therefore also non-venomous and certified by a veterinary surgeon as same, provided that the handler or public is not placed at undue risk.

Clause 3 above also extended to include venomous species with venom intact to persons who 1/ Have signed an appropriate indemnity form, removing liability from ourselves and DSE, 2/ Are over the age of 16 years old and being taught specifically how to handle such snakes, either as a catcher, keeper or practitioner and 3/ Have been appropriately instructed prior to being given the said snakes, as per an application form filled for DSE as sought by them on a new form issued in July 2007 and filled in and filed on or about 31 January 2008.

1. Section 28A of the Wildlife Act permits the Secretary to give written authorisation to do any of a number of specified things, including to display wildlife if the Secretary is satisfied that the authorisation is necessary for specified purposes. The only sub-section of relevance in these proceedings is s 28A(1)(d) which states :

(d) for the purposes of the management, conservation, protection or control of wildlife or for the purposes of education about wildlife, research into wildlife or scientific or other study of wildlife; or

1. His request for authorisation was refused. So far as his application to conduct venomous snake handling courses is concerned, authorisation has been given under s 28A(1)(d) subject to conditions. By the end of the hearing only condition 4 was in dispute. It says :
   1. Only those reptiles which are held under Commercial Wildlife (Wildlife Demonstrator) Licence No 12387349-DE may be used in snake-handling courses. Snakes which have been rendered non-venomous by surgery ('venomoid snakes') must not be used for snake-handling courses under any circumstances.
2. Section 86C of the Wildlife Act enables Mr Hoser to apply to this Tribunal for review of the decisions not to grant the authorisations he seeks.
3. On review, my powers are limited to deciding afresh his requests for authorisation. I have no jurisdiction to review or alter either the prescribed conditions referred to above or the imposition of conditions 12, 13 and 14 on the Commercial Wildlife licences.
4. My task is to decide on all the evidence and material put to me at the hearing whether I am satisfied that the authorisations Mr Hoser seeks are necessary for purposes set out in s 28A(1)(d).

1. Mr Hoser represented himself in this proceeding. The Department was represented by Ms Greenham. Whilst it was Mr Hoser's application, the Department was content to present its case and call its witnesses first. This gave Mr Hoser a better understanding of what the Department's position was and time to organise his own witnesses. Mr Hoser then called his witnesses, some of whom were interposed before he gave and completed his own evidence. Both parties made submissions.
2. As with any self-represented applicant, it is often difficult for them to discern what material is relevant to the issues that need to be decided. At various stages throughout the hearing before me, I took care to explain to Mr Hoser what my role was and what I needed to decide.
3. On 24 July 2008, there was a preliminary hearing in this matter, held at the request of the Department. The request was made because Mr Hoser had served on the Department a 25 page affidavit and three folders of material, containing 168 documents, six CD-ROM disks and a DVD. The Department considered that much of the material was irrelevant to the proceeding and that its inclusion was unduly burdensome on the Department in preparing its response. Orders were made excluding some of that material, subject to the direction of the member hearing the application.
4. Mr Hoser gave evidence and was cross-examined. He gave considerable oral evidence in addition to a statement filed in the form of an affidavit made on 29 May 2008. This was a single-spaced 25 page document containing 272 paragraphs. Attached to it was a "list" of 174 "items". Many of those "items" had been excluded by the earlier orders, but I permitted Mr Hoser to tender in evidence 27 of them, being those he specifically sought to tender in evidence. He also tendered a further single spaced, 16 page, 275 paragraph statement in the form of an affidavit dated 11 August 2008 with 31 attachments. I also allowed him to tender a number of other documents, including copies of his multi-paged single spaced applications to the Department, an earlier statement in the form of an affidavit dated 31 October 2007, photographs, news clippings, a form of petition, flyers and the like. He tendered two DVDs which we watched in the hearing. One was one of his demonstrations at a shopping mall, with some extra clips. The other of a demonstration at a school.
5. The only material I did not permit him to tender was a CD-ROM containing copies of 9 books he had written and other papers. I did not allow him to tender this CD-ROM because his books and papers were not relevant to the decision I was reviewing. Nor did I permit Mr Hoser to bring any snakes to the hearing. He made this request on several occasions. I refused because any viewing would not have assisted me in my task. The parties were well able to present and explain the evidence without the need for Mr Hoser to demonstrate, or for me to personally inspect, any of his snakes.
6. As I said, Mr Hoser gave evidence at the hearing. His evidence was a mixture of evidence and submissions. He covered a wide range of matters. Much of it was repetitive and not to the point. I got the impression that he thought the more often he said something, the more he thought it would satisfy me that what he pressed was relevant or would prove the many assertions he made.

1. Mr Hoser made it abundantly clear that he is very angry with the Department and, as he describes them, with his enemies and his opposition, about the licence changes. He says there has been a campaign against him to destroy his business interests, most significantly his reptile demonstration business "Snakebusters". As he says in paragraph 60 of his 29 May 2008 statement :

This campaign against the Hoser business has included a never ending series of lies posted on internet chat lines (again see items 26, 50, 51, 69, 101 and the many dozens of similar posts placed on the CD-roms items 170-172), and direct representations and malicious complaints to various authorities in Victoria and even interstate to close our business down (as again seen on the above named items).

1. As I understand what he says, the genesis of any of these complaints or campaigns about Mr Hoser, arise from his use in his demonstrations of venomous snakes whose venom glands Mr Hoser himself has surgically removed. He refers to these snakes as "venomoids" and for convenience I will use that term. In 2004, he carried out a procedure he had worked out himself, on a number of his venomous snakes removing their venom glands. He says he carried out this procedure having reduced their core temperature sufficiently to effectively anaesthetise them. According to his records, he still has 36 of these snakes. Mr Hoser is not a veterinary surgeon or registered practitioner. He has no qualifications.
2. I interpolate here that amendments in 2007 to the Prevention of Cruelty to Animals Act 1986 make it an offence to remove the venom sacs of a reptile unless the procedure is done by a registered practitioner for the purpose of having a therapeutic effect on the animal. It is now a prohibited procedure and an offence to show or exhibit an animal which has been subject to such a procedure performed after the commencement of the amendments.
3. Mr Hoser says his venomoids are not venomous or dangerous in any way. He contends that the new conditions are vexatious and targeted at him and his company and are "anti-public safety".
4. It may well be that Mr Hoser has successfully removed those snakes' venom sacs and today they may not be capable of producing venom. But the Department called several expert witnesses whose evidence raises doubt about Mr Hoser's claims and raise concerns about the messages to the public that his use of these snakes would send.
5. Many times during the hearing, Mr Hoser claimed his venomoids were 100% safe. He produced no scientific evidence to establish this, but he has a strong personal conviction on the issue. He says that the last five years he has forced these snakes to bite him without ill effects and relies on this as confirmation for his claims. Thus any claim, he says, that these snakes in the last five years have "regenerated a drop of venom must be rejected as false and disproven beyond any doubt". He tendered in evidence photographs of a dissected death adder, whose venom glands he had removed two years previously, to prove his claims. He said the photographs showed no signs of regeneration of any sort, of any gland tissue.
6. In his May 2008 statement, he claimed that a veterinary surgeon had certified his snakes were devenomised, had inspected the snakes and approved them. That veterinary surgeon, Robert Zelesco, was called to give evidence by the Department. His evidence was that he has never :
   • advised Mr Hoser in writing or verbally that his 'devenomised' snakes are completely safe.
   • advised Mr Hoser in writing or verbally that the removed venom gland tissue will not re-generate under any circumstances.
   • advised Mr Hoser in writing or verbally that there is no risk to Mr Hoser, his assistants or the general public (including children) associated with potential bites from the 'devenomised' snakes.
   • certified, signed off or approved Mr Hoser's 'devenomised' snakes as safe.
7. In his evidence at the hearing, Dr Zelesco confirmed he had never tested the snakes to see if they had effectively been devenomised. He could not be sure they were 100% safe but he thought they probably were. When asked whether there were any tests that could be done to determine once and for all that a snake was permanently unable to produce venom, given the possibility that there could be some regeneration of the gland tissue, he could not point to any, saying one would have to milk them daily and have it checked by a biochemist. When asked in cross-examination by Mr Hoser about the conversation they had had when Dr Zelesco had signed forms after checking microchips in the snakes, Dr Zelesco said he asked Mr Hoser how he knew the snakes were safe and said Mr Hoser told him it was because he put them in with mice and rats without ill effect and extrapolated from that that they were not poisonous.
8. Mr Hoser called evidence from a lay witness Mr Peter Whybrow in support of his claims that the venomoids were safe. Mr Whybrow who has worked with Mr Hoser as a demonstrator, gave evidence that he believed they were definitely safe because they had had their glands removed and he had seen photographs. Given that evidence, I did not find it persuasive. The other lay witness he called was Mr Adam Elliott who works in a pet shop which, among other things, sells reptiles. Mr Hoser had filed a statement Mr Elliott had prepared some years ago for proceedings Mr Hoser had in the Federal Court. There was nothing in that statement that was relevant to these proceedings and the evidence he gave at this hearing was of little assistance, because all he could say was about his experience with the public and reptiles in the pet shop.
9. Mr Hoser also sought to rely on an extract from a book by Douglas Mader[1] including a contribution in that book by a Richard Funk on "venomoid surgery" and a question and answer column by Douglas Mader in the August 2008 edition of Reptiles, in support of his claims that these snakes were 100% permanently incapable of producing venom.
10. The highest that Mr Funk put it was to describe snakes on whom the surgery had been performed as "functionally non-venomous". The article does not say how that claim had been tested, does not refer to the possibility of tissue regeneration and, in any event, would be predicated on the successful surgical removal of every piece of tissue in each snake.
11. As to the photographs of the dissected death adder Mr Hoser produced, all they demonstrated was that for that particular snake, apparently its venom glands had been removed and there was no sign of regeneration.
12. None of that material nor an unsolicited email received by the Tribunal from a Mr Paul Woolf, President, Herpetological Society of Queensland, stating "emphatically, that the snakes (Mr Hoser's venomoid snakes) he has made bite him are unable to yield venom", persuades me that I should be satisfied that Mr Hoser's venomoids are and will be permanently incapable of producing venom and injecting venom in a bite.
13. The Department called Mr Waters to give evidence. He is the Acting Manager of Flora and Fauna Utilisation and Management in the Department. He has a Masters Degree in Science with a major in Zoology and a Diploma of Education. He has been involved with reptiles, including venomous snakes, for over 35 years and has extensive experience in the handling of venomous snakes in a private and professional capacity. He was the delegate who refused Mr Hoser's first request.
14. His evidence about Mr Hoser's venomoids is set out in the s 49 statement tendered in evidence in the hearing and which he adopted as his evidence. Mr Waters says that :

While the demonstration of snakes with their venom glands removed could potentially reduce safety risks for the Applicant, his assistants and members of the public attending his shows, the Delegate has concerns regarding the manner in which the glands were removed and the legality of the procedures detailed by the Applicant on his website ... Indeed, any authorisation to allow Mr Hoser to handle multiple venomous species of snakes that have been notionally rendered non-venomous through potentially illegal procedures or to allow members of the general public to approach, touch and handle these snakes could be construed as Departmental endorsement of this practice.

1. He goes on to refer to procedures Mr Hoser carried out on his venomoids and to the history of legislative amendments to the Prevention of Cruelty to Animals Act referred to earlier.
2. In Mr Waters' opinion :

Given that the Applicant does not have formal training or qualifications in surgical or veterinarian procedures (ie tertiary level training) and is not a qualified or registered veterinarian, the Delegate cannot be assured that the operations successfully rendered his snakes non-venomous and completely safe. Also, the Delegate cannot be assured that the removed tissue will not regenerate .... This could potentially result in the animals either retaining or regaining their venomous capabilities, exposing the Applicant, his assistants or members of the public to the risks of venomous snake bite.

Contrary to the Applicant's claims in his application, the Respondent has no record of any written documentation from any registered veterinary practitioner stating that the snakes which have had their venom glands removed are clearly safe, that the removed tissue will not regenerate under any circumstances and that there is no risk to the Applicant, his assistants or the general public associated with potential bites from his devenomised snakes. Accordingly, all snakes that the Applicant claims to be devenomised must be considered venomous or potentially venomous and therefore dangerous to the public.

Advice from registered veterinarians and venom researchers ... suggest that, even if declared safe, regular re-examination and testing of the snakes would be required to ensure that no changes had occurred to regenerate their venom delivery capacity. Additionally, given the large number of snakes that the Applicant uses in his shows and has in his possession, there is always the possibility of the accidental inclusion or substitution of a venomous animal that could inflict a life threatening bite. For these reasons, it is the view of Delegate that the public approaching, touching or handling allegedly de-venomised snakes, or an error in the management of the Applicant's snakes, could have disastrous consequences for little or no recognised benefit in terms of wildlife conservation or education about wildlife.

1. Dr Helen McCracken gave evidence for the Department. She is a veterinary surgeon of 22 years experience. She works at the Melbourne Zoo and specialises in snakes and reptiles. She has seen Mr Hoser's website in which he details the procedures he used to remove the snakes' venom glands. In her opinion :

If the procedure is conducted by an experienced person who is not trained in surgical technique and not equipped with the specialised instrumentation required for this procedure it is my qualified opinion that there is a risk of failure to definitively render a 'venomous' snake 'non-venomous'. Risks include failure to adequately close the venom duct or remove the entire venom gland.

In my opinion it would be very difficult, even for a trained person, to absolutely certify that a snake has been rendered harmless by surgery conducted by another person. This is because there would be significant reliance on a demonstration that a snake has not expelled venom during a bite or simulated bite. Even in venomous snakes that have not been operated upon to render them non-venomous, 'dry bites' (where no venom is expelled), are relatively common. Accordingly, such demonstrations cannot be guaranteed to prove that the snake in question has been effectively rendered harmless.

1. Mr Peter Mirtschin, who runs the largest venom supply business in Australia in Tanunda, South Australia, gave evidence for the Department. His business has over 700 venomous snakes, kept for the extraction of venom and for research purposes. His CV is extensive and he has had papers published in prestigious publications such as "Nature", subject to stringent peer review. He gave the following evidence.
   • In my opinion, whilst the surgery involved in either removal of the venom gland or severance of the venom duct would be relatively simple and within the capacity of a lay person to learn, there is a possibility of the procedure being carried out incorrectly or that the duct is not successfully severed. I believe this could also apply even when conducted by a veterinary surgeon. Therefore it would be extremely courageous for a person to definitely declare a venomous snake, having undergone this surgery, to be incapable of delivering a venomous bite.
   • I base this upon my knowledge of (a) clinical cases in human snakebite, (b) observations of snakes feeding in captivity, (c) from instances involving venom extraction procedures, (d) my experience involving surgery with venom glands and ducts, and (e) some experience that I have had regarding tissue regeneration in snakes.
   • In cases (a) and (b) above involving bites on humans and bites to prey items in captivity, a proportion of bites do not appear to involve the injection of venom. Colloquially known as 'dry bites' people and animals frequently suffer no observable symptoms following the bite. It is believed that the injection of venom is a voluntary action and in such cases no venom has been expelled.
   • I also have personally observed numerous cases where snakes that have previously yielded venom in extraction procedures (milking) yield none at other times, so it would be impossible to establish the success of removal of the venom glands or severance of the venom duct by test milking the snakes.
   • Therefore, even in snakes that are known to be functionally venomous there are occasions when they do not exhibit the capacity to expel venom.
   • Tissue regeneration might also reverse the effect of surgery. Some years ago we had to remove an eye from a king brown snake because of infection. This was performed by the local veterinarian. About 3 years later we had to euthanise the snake. We have a practice of harvesting venom glands from some snakes we euthanise. When the area containing the venom gland was exposed (which is close to the eye), the area where we expected the eye socket to be was exposed as well. To our surprise, a new eye had re-grown. This must add doubt about using venom gland removal or venom duct severing as a method of rendering snakes 'harmless'.
   • I conclude that regular and repeated expert ultrasonic examination of any snake deemed to have been rendered surgically non-venomous would have to be conducted to have any degree of surety that such a process had been effective.
2. In his evidence during the hearing, he went into greater detail of further research he was doing, not yet published, looking at tissue regeneration.
3. The evidence of the experts, which I accept, is that aside from the incidence of "dry bites", there is potential for not all gland tissue to be removed and the possibility of tissue regeneration, so that it is impossible to be 100% certain that a venomous snake, whose venom gland has been removed by surgery like that carried out by Mr Hoser, will be rendered permanently incapable of producing venom.
4. In the absence of any scientific evidence from Mr Hoser, such as the ultrasound testing Mr Mirtschin referred to, I preferred the evidence of Dr McCracken and Mr Mirtschin to Mr Hoser's evidence. Further, I agree with the approach taken by Mr Waters.

1. Mr Hoser's licence still allows him to demonstrate his snakes and he has approval to conduct snake handling courses. His licence allows him to handle his venomoids provided he does so one at a time. He is still able to demonstrate his venomous snakes provided his audience is no closer than 3 metres, unless he uses a pit. His licence allows him to pass around and let people handle his non-venomous species, and to demonstrate more than one non-venomous snake at any time. He is still able to conduct snake handling courses, but is prohibited from using his venomoids for those courses under any circumstances.
2. Mr Hoser wants authorisation to demonstrate more than one snake at a time of any taxa. He wants to allow the general public to approach within 3 metres when demonstrating venomous species of snake. He dislikes using a pit and believes it is old-fashioned and harbours germs. He wants authorisation to allow persons other than himself or a licensed assistant to handle or touch his venomoids. He wants authorisation to use his venomoids in his snake handling courses.
3. Whilst Mr Hoser has not specified under which sub-section of s 28A(1) he makes his application for authorisation, the only possible relevant clause is (d) seeking authorisation -

(d) for the purposes of the management, conservation, protection or control of wildlife or for the purposes of education about wildlife, research into wildlife or scientific or other study of wildlife; or

1. Thus, I may give authorisation for Mr Hoser to display the snakes if I am satisfied it is necessary for any of those purposes.
2. Mr Hoser referred me to a dictionary definition of "necessary". The dictionary was the Heritage Illustrated Dictionary of the English Language, published by the American Heritage Publishing Co Inc. He drew my attention to the second definition therein - "2. needed to achieve a certain result or effect; requisite". Mr Greenham submitted "necessary" should be given its plain and ordinary meaning, consistent with the first definition in that dictionary - "1. Needed for the continuing existence or functioning of something; essential; indispensable".
3. Whilst Mr Hoser may want these authorisations and believes they are desirable for a variety of reasons, even were I to agree with him, that is not enough. I have to be satisfied the authorisations he seeks are necessary for the stated purposes, where 'necessary' has its plain and ordinary meaning, consistent with the first definition.
4. Mr Hoser gave evidence about his demonstrations and how successful and popular they were and their value as an educational tool. He told me on a number of occasions during the hearing that he is "booked solid" until the end of the year. The DVD's of his show at the shopping mall and to the school students, which were tendered by him and viewed during the hearing, represented his demonstrations in two different settings. Having viewed those DVDs, I would liken them to a "side show". He demonstrates a range of reptiles. They do "tricks". The patter is continuous and the show fast moving. There is a focus on the five deadliest snakes in the world. They are progressively arranged around his neck. It is entertainment. As an aside, there are some educational aspects to it. It is clearly not aimed at educating the public; but may be imparting some information in an entertaining way. Before we viewed the DVD from the shopping mall, Mr Hoser said there were 41 safety messages given in the show. When it finished, he told me there were actually 19 such messages. I observed I had seen 6 at best. He agreed with me, in any event, that they were delivered as part of his patter. They did not come across as safety messages in their own right.
5. Mr Hoser also sought to rely on his obligations under occupational health and safety legislation as a reason for granting the authorisations. However, given my findings that I am not satisfied that his venomoids are or will continue to be 100% unable to inject venom in a bite, any such obligations do not assist with my deliberations. It is a given that Mr Hoser should conduct all his demonstrations and snake handling courses without placing anyone at undue risk.

Is it necessary for educational purposes for Mr Hoser to be authorised to hold more than one snake at a time of any taxa, when demonstrating, such that he should be authorised to do so?

1. The reasons Mr Hoser advanced in support of this request as far as I could discern, were that it would enable direct comparisons of different snakes to be made. In his opinion, this was by far the best educational method for comparing snakes of different taxa, venomous and non-venomous. Further, he said that the use of more than one produced a better "wow" factor and held the audience's attention, which is necessary if you want to educate people. He also said that it would allow the demonstrator to have snake heads pointing in different directions at the same time. He says this is important where there was a big audience; both sides of the audience can then each see a head at the same time.
2. Mr Hoser called evidence from Mr Andrew Wilson to support these claims. Mr Wilson is a licensed reptile keeper and an ex-paramedic. He has worked for Mr Hoser in his demonstrations since 2004. He had prepared a statement dated 26 October 2007. That statement said nothing about the need for educational purposes to be able to hold more than one snake at a time of any taxa when demonstrating, or the necessity to be closer than 3 metres when demonstrating venomous species or the necessity to be able to hand venomoids to the public.
3. However, during the hearing, Mr Hoser put a series of self-serving propositions to Mr Wilson. His responses consistently focussed on the advantages he saw of being able to show Mr Hoser's venomoids. Those advantages were expressed in terms of safety, because he believed, and said he knew as a fact, that they were not poisonous. He said that holding only one venomous snake at a time makes it harder with a large crowd to show the difference in species. He says it means you cannot demonstrate the differences and you have to be able to do that to maintain the public's interest. He believes there is nothing like seeing and feeling a snake. He agreed with the proposition Mr Hoser put to him that it was necessary to use multiple snakes to attract a high level of interest.
4. Mr Hoser called Mr Federico Rossignoli to give evidence. He is a snake handler who has a business "Fred the Snakeman". He gives lectures to children of kindergarten age up to tertiary level. He demonstrates at the Melbourne Show. He prepared a statement dated 28 October 2007. His statement addressed not being allowed to handle more than one venomous snake at a time. He uses venomous snakes. He never allows children to hold them. He believes that Mr Hoser holding more than one venomous snake at a time is "infotainment". He himself does not always handle more than one snake at a time; he believes it is a crowd pleaser and it is silly. He always uses a whiteboard because it supplements what he otherwise does. He was unaware of the new conditions but had been led to believe that he would be prohibited from allowing the public to handle pythons which are non-venomous. On the whole, his evidence did not support Mr Hoser's contention that it was necessary for educational purposes to handle more than one snake at a time of any taxa.
5. Dr McCracken gave evidence about this request. She gave evidence about the ways the Melbourne Zoo conducts demonstrations, none of which involved the handling of more than one snake at a time of any taxa. She felt that the handling of more than one of any kind of snake was dangerous, particularly for the snakes, because they cannot grab and could fall and hurt themselves.
6. She felt that there was no need to demonstrate more than one for any species for educational purposes. She thought the best way to show an audience details, is to do so with photographs. There was no need she said to do this by handling a snake.
7. Mr Waters gave evidence about these matters :
   • [He] was not satisfied that granting authority for the Applicant to hold multiple dangerous or venomous snake species was necessary to effectively portray conservation or education messages to the general public. [He] was also not satisfied that it is necessary for members of the general public, including young children, to approach within 3 metres, or to handle or touch dangerous or venomous snake species during the Applicant's demonstrations to understand messages about conservation, or to be educated about or study wildlife (such as learning about the key species identification features of the various species).
   • While it is accepted that an educational demonstration may be conducted in an entertaining manner, entertaining per se is not a purpose for which a s 28A(1) authorisation can be issued. Public safety and animal welfare considerations must take precedence over any 'entertainment' considerations. Further, while it is accepted that there is an educational and conservational component to the Applicant's shows, [he] is not satisfied that it is necessary for any of the purposes in s 28A(1)(d), including education and conservation for any of the authorisations sought to be granted, given other available methods of portraying the same messages.
   • [He] has concluded that there is no educational message that can only be provided by handling multiple venomous species at any time. The careful handling of individual venomous snakes in recognised ways that would normally minimise the chance of a bite is considered a more appropriate and responsible demonstration technique and one that reinforces the crucial educational message of the dangerous nature of Australia's elapid snakes.
   • The Applicant has argued that handling multiple venomous snakes in close proximity to the public provides an opportunity to compare subtle species identification features such as head scales. [He], a zoologist himself, is not convinced that this information is necessary for the general public to be able to identify venomous snakes or in fact likely to be remembered by the public, as it is of a very technical nature. Such demonstrations also suggest that the general public needs to approach and closely examine a snake to identify it. [He] believes that this is the wrong message to be sending to audiences, particularly young children, and that the general public should never be encouraged to approach snakes in the wild. All wild snakes should be treated as potentially dangerous and avoided where possible.
   • Also, while the Applicant may warn children and other people attending his shows not to attempt to handle venomous snakes in the cavalier manner demonstrated, the Respondent has concerns that children or others may attempt to emulate these handling techniques with venomous snakes encountered in the wild. A verbal warning alone is not considered adequate because there is no guarantee that all audience members have heard and understood the message.
   • There is a range of alternative and effective ways in which conservation messages and species identification features can be communicated to audiences during demonstrations that do not require the handling of multiple dangerous or venomous snakes or allowing the public to approach or handle the snakes. These include the use of visual aids to enhance the viewer's understanding, demonstrating snakes individually in a sequential manner, using a number of trained and authorised assistants at the same time to demonstrate the snakes or displaying snakes in glass enclosures. All other licensed Wildlife Demonstrators are currently able to portray these messages without the authorisations sought by the Applicant.
8. In his oral evidence he said that there was no advantage in holding and demonstrating more than one snake at a time. Comparing heads is a very technical matter and not necessary where there are other methods that can be used such as whiteboards, diagrams, photos, film footage etc. He said that single snakes can always be displayed behind glass.
9. I preferred the evidence of Dr McCracken and Mr Waters and accepted it, noting their qualifications and expertise. I preferred their evidence to Mr Hoser's and Mr Wilson's evidence and observe that Mr Rossignoli's evidence did not assist Mr Hoser.
10. Whilst Mr Hoser might wish to show more than one snake of any taxa at a time which for him would mean showing a number of his venomoids at the same time as he does in the DVDs, I am not satisfied it is necessary he be able to do so for any of the purposes stated in the Act.

Should Mr Hoser be authorised to approach the public closer than 3 metres when demonstrating venomous species of snake?

1. Mr Hoser says that he needs to be able to demonstrate at close range so that people can inspect scalation and other diagnostic features. He says that at 3 metres, it is impossible to show people these key diagnostic features, where the key difference is the scales under the tails. He does not say how much closer he needs to be than 3 metres.
2. Mr Wilson thought that the 3 metre distance was appropriate for venomous snakes but not for Mr Hoser's venomoids. At 3 metres he said it is very hard to show the intricate differences between the species; it is too far away to see clearly enough. He said the difficulty about displaying snakes in a perspex box was that snakes tended to curl up and it was therefore very hard to point out the details. He thought that the use of videos and whiteboards was not as effective as using a live snake for demonstration purposes, but agreed such tools could be used in conjunction.
3. Mr Wilson's evidence in regard to this authorisation is predicated upon Mr Hoser using his venomoids. Given my earlier findings, his evidence does not assist Mr Hoser's position.
4. Mr Rossignoli said that he usually kept a 3 metre distance from the audience, especially for the main part of his lecture. When asked was it necessary to be closer than 3 metres when doing his venomous snake show, he responded that sometimes veterinarians wanted to know how to pick up snakes and that there have been a few times when he might have needed to be closer than 3 metres.
5. To my mind, demonstrating to veterinarians is something quite different from a demonstration at a shopping mall or in a school. Generally, Mr Hoser's DVDs show he keeps a distance of approximately 3 metres from the audience in any event. I interpolate here that Mr Hoser tried to call a Mr Fisher to give evidence, but was unsuccessful in doing so. Mr Fisher was a Worksafe officer who visited "The Glen" shopping centre when Mr Hoser was doing a demonstration in March 2006. He had observed Mr Hoser handling multiple snakes, leaving others on a table where children were seated, approximately 1 metre away. He recommended a limit on the number of snakes being handled at any one time, securing snakes not being handled and moving the mat the children sat on a further 1 metre back. If that were to have been the evidence Mr Fisher gave in this hearing, it is difficult to see how it could have helped Mr Hoser's case. This is because Mr Hoser is seeking authorisation to approach the public closer than 3 metres when demonstrating venomous species and without ever specifying how close. Mr Fisher at the very least is recommending a distance of 2 metres, and possibly closer to 3 metres.
6. Dr McCracken gave evidence that 3 metres is a reasonable distance given that the snakes are being handled and can move quickly and erratically. In her opinion, the audience might be at risk if it was closer. Mr Waters gave evidence relevant to this request. It is set out earlier in these reasons. I accepted Dr McCracken's and Mr Waters' evidence.
7. I am not satisfied that it is necessary for any of the purposes stated in the Act that Mr Hoser should be authorised to approach the public closer than 3 metres when demonstrating venomous species of snake.

Should Mr Hoser be authorised to hand his venomoid snakes to the public to handle?

1. This was part of Mr Hoser's third request. For clarification, he is able to hand non-venomous species to the public to handle. What he is not permitted to do is to hand them his venomoids.
2. Mr Hoser says that because there is "zero risk with venomoid snakes, these snakes can literally be handed out to anyone to hold, provided that person is not disabled to the extent that they may grab and injure the snake".
3. I accept that Mr Hoser wants to be able to do this. It might enable closer personal inspection of the snake and enable a person to feel the snake. But we come back to the possible risks involved and the potential for mixed messages. Mr Waters was concerned that if snakes, such as Mr Hoser's venomoids, do not remain harmless, the public is at risk. Any risk is not acceptable. He needed to be convinced there was no chance of someone being bitten. He was also concerned that were he so authorised, it would send the wrong message to the public. The message in Victoria is and must be, he said, that the vast majority of snakes are venomous and dangerous, should be left alone and not engaged with. I accepted his evidence.
4. I am not satisfied that authorisation is necessary for any of the purposes stated in the Act.

Should Mr Hoser be authorised to use his venomoids in his snake-handling courses?

1. Mr Hoser is authorised to conduct snake-handling courses. His authorisation has the same entitlements as other course providers. For Mr Hoser, it precludes the use of his venomoids and he wants to be authorised to use them. To authorise him, I have to be satisfied it is necessary for any of the stated purposes.
2. The thrust of Mr Hoser's case is that it is safer to conduct these courses, which in his case he runs for 1 day, using his venomoids because training necessarily involves the handling of deadly species. It made sense he said to train people using snakes that were safe.
3. Ms Kimberley Dripps and Mr Waters gave evidence about these issues. Mr Waters says that the venomoids -

would have been of limited use in training people to handle actively venomous snakes. In his opinion, venomous snakes should at all times in training be treated as such to ensure clear messages are given to participants about which snakes are deadly and how they should at all times be handled. Permitting venomoids to be used means that mixed messages may be given about safe snake handling.

1. In his oral evidence Mr Waters reiterated that he was concerned about people being taught how to handle venomous snakes, with ones that Mr Hoser says are not dangerous when what they need to learn is how to capture and manage ones in real life that are venomous and dangerous. He said people need to leave these courses with a sense of confidence about handling really dangerous snakes. He was concerned that if they were practising on ones that were not, they may gain a false sense of confidence.
2. In his opinion, it was not necessary for Mr Hoser to use his venomoids. Other courses are conducted using venomous snakes. Aside from those matters, he thought that if Mr Hoser were authorised to use his venomoids, it would send the wrong message given the recent amendments to the Prevention of Cruelty to Animals Act making it an offence to remove the venom gland. He was concerned about the perception, were he authorised, that his venomoids were endorsed by the Department, which they are not.
3. Ms Dripps who actually made the decision on this part of Mr Hoser's request, gave evidence. She is a veterinary surgeon and Executive Director of Biodiversity and Ecosystem Services in the Department. She considered that the authorisation was neither necessary nor desirable. She was not satisfied his venomoids were completely safe. She was concerned about the mixed messages those doing these courses might receive. Any course would have a component of verbal instruction, consideration of written material and a handling component. She was worried that the handling component would not be done in a manner that promoted future safety. She was concerned about the potential risks were the participants later faced with a crisis. She said a person usually remembers what they have actually seen and done, not what they must do faced with a venomous snake.
4. I have already made findings about whether the venomoids are and will continue to be 100% unable to inject venom in a bite.
5. That potentially Mr Hoser's venomoids may be safer for the snake handling students is one thing. But weighing that against the potential for giving the students a false sense of confidence and because other courses can and do teach handling with venomous snakes, leads me inevitably to conclude that the authorisation sought is not necessary for any of the purposes stated in the Act.

1. For these reasons, I affirm the decisions of the Department on each request for authorisation.

[1] See Mader, Reptile Medicine and Surgery, second edition