Wildcare Queanbeyan Incorporated v Conservator of Flora and Fauna (Administrative Review)

[2009] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WILDCARE QUEANBEYAN INCORPORATED v CONSERVATOR OF FLORA AND FAUNA  (Administrative Review) [2009] ACAT 31

AT 111 of 2008

Catchwords

ADMINISTRATIVE REVIEW – Eastern Grey Kangaroo - import licence - export licence - corresponding licence

Nature Conservation Act 1980 (ACT) ss 11, 64(repealed), 106, 107, 106

Determination of Licensing Criteria, Instrument No 47 of 2001

Tribunal: Mr B Hatch Senior Member

Date of Hearing:	2 July 2009
Date of Decision:	10 September 2009

AUSTRALIAN CAPITAL TERRITORY	)
CIVIL & ADMINISTRATIVE TRIIBUNAL	)	NO: AT 111 of 2008
BETWEEN:	WILDCARE QUEANBEYAN INCORPORATED
Applicant
AND:	CONSERVATOR OF FLORA AND FAUNA
Respondent

Tribunal:	Mr B Hatch	Senior Member
Date:	10 September 2009

ORDER

The decision under review is affirmed.

…………………………..

 Brian Hatch
Senior Member

AUSTRALIAN CAPITAL TERRITORY	)
CIVIL & ADMINISTRATIVE TRIIBUNAL	)	NO: AT 111 of 2008
BETWEEN:	WILDCARE QUEANBEYAN INCORPORATED
Applicant
AND:	CONSERVATOR OF FLORA AND FAUNA
Respondent

REASONS FOR DECISION

1. This is an Application for Review of a Decision of the Conservator of Flora & Fauna made on 1 December 2008.

2. The essence of the decision under review is that the Applicant, which had previously held a licence to take 35 Eastern Grey Kangaroo joeys from the ACT to New South Wales, sought to have a new licence issued in order to, once again, export joeys from the ACT to New South Wales.  The Conservator has refused to grant that licence.

3. The Applicant is a group based in the Queanbeyan region which cares for native animals.  Part of what it does is to care for orphaned young native animals.  One species so cared for is the Eastern Grey Kangaroo which is the common grey kangaroo.  The Applicant takes charge of orphaned Eastern Grey Kangaroo joeys and raises them to the stage where they can be released into rural areas.  The rural areas are properties in New South Wales. The evidence given by Mr Guy Wilmington on behalf of the Applicant is that the properties onto which the animals are released are approved of by the New South Wales authorities and is land held by members and supporters of the Applicant.  I accept the evidence of Mr Wilmington that the animals are released appropriately.

4. The Eastern Grey Kangaroo is an abundant species and the Applicant does not seek this licence on conservation grounds but on animal welfare grounds.  I accept that the Applicant is genuinely seeking these licences for the purposes of animal welfare.

5. The issue was raised in the Hearing as to whether the Applicant had a corresponding import licence for New South Wales.  There would be no point in issuing an export licence if the New South Wales authorities would not issue a corresponding licence for the joeys to be taken into New South Wales.  Mr Wilmington gave evidence that such a licence would be granted by the New South Wales authorities if an export licence was granted.  I accept Mr Wilmington’s evidence in that regard, although clearly that is ultimately a matter for the New South Wales authorities.

6. After hearing the evidence, it is clear that the Eastern Grey Kangaroo is an abundant species.  It is abundant to the extent that large numbers of them are slaughtered in New South Wales and much of that is used for the Commercial Meat Industry.  In addition, a certain number are simply culled.  The ACT also has a culling program.  From the numbers which are slaughtered and culled, it appears to me that the demand for Eastern Grey Kangaroo meat and other products does not keep up with the number of Eastern Grey Kangaroos which are actually killed each year in New South Wales and the ACT.

7. Despite the large numbers of these animals and the fact that an agricultural industry and towns and cities have had to coexist with them for over 200 years, the evidence before me suggests that very little is known scientifically about these animals.

8. Part of the evidence in this matter was with respect to where any exported joeys would end up in New South Wales.  The Respondent would be concerned if the Eastern Grey Kangaroos were released sufficiently close to the ACT that they could return to the ACT.  The Applicant gave assurances that they would be released sufficiently far from the ACT.  Dr Donald Fletcher is a Senior Ecologist employed by the ACT Government within the Department of Territory and Municipal Services in the Parks Conversation and Lands Section.  Dr Fletcher gave evidence that the home range for an Eastern Grey Kangaroo is surprisingly small but in its life time that range can be significantly larger.  Male Eastern Grey Kangaroos will travel further distances than females and in his opinion, that could be up to 40 kilometres but he acknowledged that some other experts may give a larger range.  The evidence that was presented was clear to the extent that no expert is really clear what the range of Eastern Grey Kangaroo really is.  I accept the evidence of the Applicant, however, that any exported Eastern Grey Kangaroo would be released more than 40 kilometres from the ACT and would therefore, be unlikely to ever return to the ACT.

9. The behaviour of hand reared Eastern Grey Kangaroos was also a matter of contention.  Dr Fletcher gave evidence that there is very little, if any, empirical evidence as to the behaviour of hand reared Eastern Grey Kangaroos.  The best evidence he could muster was anecdotal evidence by CSIRO employees who had raised many Eastern Grey Kangaroos over many decades for research purposes.  The evidence was that hand raised Eastern Grey Kangaroos become adults, particularly older adults which lose the natural timidity of Eastern Grey Kangaroos and may become aggressive towards humans.

10. This Application is made pursuant to the Nature Conservation Act 1980.  In order to raise or care for and Eastern Grey Kangaroo in the ACT requires a licence to be issued pursuant to the Nature Conservation Act 1980.  The evidence of Dr Fletcher was that no other licence had ever been granted.  As far anybody is aware, the only licence issued under the Nature Conservation Act 1980 in relation to Eastern Grey Kangaroos is the licence which was issued to the Applicant in 2006.  That one licence was the sole exception to the ACT policy to not issue licences with respect to Eastern Grey Kangaroos.  That policy is based on the report of the ACT Kangaroo Advisory Committee of February 1996.  That report has been the framework for the policy since that time.  A further advisory committee report was issued in October 1997.  These reports give no support for the hand raising of orphaned joeys and the evidence of Dr Fletcher is that hand raised Joeys tend to become difficult adults although I note, as I have earlier, that such evidence is scant.  Dr Fletcher, however, has his doctorate in a study of Eastern Grey Kangaroos in temperate grasslands and I accept that the best available evidence is that hand rearing an abundance species such as the Eastern Grey Kangaroo serves no purpose.

11. The respondent made submissions that consistency in government policy is important.  Other than for the one licence granted in 2006 to the Applicant, no other licences are known to have ever been issued under the Nature Conservation Act 1980 with respect to Eastern Grey Kangaroos.  The evidence is clear that the Eastern Grey Kangaroo is an abundant species and the Applicant’s request for a licence is not based on nature conservation grounds but simply on animal welfare grounds.  Based on the evidence of Dr Fletcher that hand raising Eastern Grey Kangaroos could be counterproductive in any event, I do not accept that hand raising an abundant species like the Eastern Grey Kangaroo is necessarily for the welfare of that animal.

12. A licence, as sought, would be issued pursuant to part 11 of the Nature Conservation Act 1980. Section 106 is the power to grant the license. The licence is for a period as specified in the licence pursuant to Section 107. Under the Nature Conservation Act 1980 criteria for the grant or refusal of a licence were issued pursuant to the Determination of Licensing Criteria, Instrument No 47 of 2001. That Instrument was made under Section 64 of the Nature Conservation Act 1980. Section 64 is now Section 106 of the Nature Conservation Act 1980.

13. Pursuant to clause 7 of the Determination of Licensing Criteria, Instrument No 47 of 2001 the conservator shall have regard to a number of matters.  I find that the conservator has had proper regard to clause 7.  I agree with the findings of the conservator and can see no basis upon which the licence, as sought, should be granted.

14. I affirm the decision under review.

…………………………..

Brian Hatch

Senior Member

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A  FILE NOS:    AT 08/111

APPLICANT:  WILDCARE QUEANBEYAN INCORPORATED

RESPONDENT:                  CONSERVATOR OF FLORA AND FAUNA

COUNSEL APPEARING:   APPLICANT:          N/A

RESPONDENT:      MR P WALKER

SOLICITORS:  APPLICANT:          N/A

RESPONDENT:      ACT GOVERNMENT SOLICITOR

OTHER:  APPLICANT:          MR G WILMINGTON

RESPONDENT:      N/A

TRIBUNAL MEMBERS:    MR B HATCH, SENIOR MEMBER

DATE OF HEARING:        2 JULY 2009  PLACE: CANBERRA

DATE OF DECISION:       10 SEPTEMBER 2009  PLACE: CANBERRA
_______________________________________________________________________

PART B

RECOMMENDATION:
FULL REPORT ( )               CASE NOTE ( )        UNREPORTED DECISION (X)

COMMENT: