Wildlife Protection Association of Australia Inc & Ors and Minist Er for the Environment and Heritage & Anor
[2003] AATA 236
•13 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 236
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/286
GENERAL ADMINISTRATIVE DIVISION ) Re
Wildlife Protection Association of Australia Inc
First Applicant
Australian Wildlife Protection Council
Second Applicant
Animals Australia
Third Applicant
And Minister for the Environment and Heritage
First Respondent
Director-General of National Parks and Wildlife
Second Respondent
DECISION
Tribunal The Honourable R N J Purvis, QC, Deputy President, Ms N Isenberg, member, Professor G A R Johnston AM, member. Date13 March 2003
PlaceSydney
Decision The Tribunal affirms the decision of the Minister for the Environment and Heritage to declare the Kangaroo Management Plan to be an approved Management Program for the purposes of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
[sgd] The Honourable RN J Purvis, QC
Deputy President
CATCHWORDS
KANGAROO MANAGEMENT PLAN – Applicants sought review of the decision to approve New South Wales Kangaroo Management Program - whether the Management Program should be approved pursuant to section 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 - whether legislative prerequisites to approval are satisfied - irrelevant considerations raised by Applicants
LEGISLATION
Wildlife Protection (Regulation of Exports and Imports) Act 1982 ss 9A, 10 (1)
National Parks and Wildlife Act 1974 (NSW) ss 2A(1), 121, 123, 124, 125, 126
Wildlife Protection (Regulation of Exports and Imports) Regulations) 1984, Regulation 5
Environment Protection and Biodiversity Act 1999
Threatened Species Conservation Act 1995 (NSW)
CASELAW
Re Fund for Animals Ltd and Minister of State for Arts, Heritage and Environment, (unreported, AAT No 2697, 6 June 1986)
REASONS FOR DECISION
The Honourable RN J Purvis, QC, Deputy President, Ms N Isenberg, member, Professor
G A R Johnston AM, member.DECISION UNDER REVIEW
1. On 13 December 2001 the Minister for the Environment and Heritage (“the Minister”), decided, pursuant to Section 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (“the WP Act”), to declare the New South Wales Kangaroo Management Program 2002-2006 (“the Management Program”) to be an approved Management Program for the purposes of the WP Act.
2. An Application for Review dated 26 February 2002 the first Applicant sought review of the Minister's decision, and subsequently the other Applicants were joined as parties. In such application it was stated:
“This application is by Pat O’Brien, President of the Wildlife Protection Association of Australia Inc, on behalf of the National Kangaroo Protection Coalition, a lobby group of 14 wildlife and animal protection groups our reasons for this application are many, and include; unsustainability, cruelty issues, and public criticism ignored. 80% of public submissions opposed the draft NSW kangaroo management plan, and were ignored. This new plan also removes the damage (crop) mitigation clause.
There is plenty of good scientific data to show that red kangaroos particularly, are now at risk. This data has been ignored by both State and Federal govts. 14 detailed submissions opposing the NSW kangaroo management plan will be tabled as evidence.
Although the registered office if WPAA Inc is in QLD, most of the national kangaroo protection coalition are NSW based. As well, the appeal is for the NSW kangaroo plan.”
3. The second Respondent, the New South Wales Parks and Wildlife Service (“NPWS”) was granted leave to be joined as a party.
THE HEARING
4. The application for review proceeded to a hearing was held before the Tribunal on 19 and 20 November 2002 at which time all Applicants were represented by Mr P O’Brien, the President of the first Applicant. The hearing continued on 16 and 18 December 2002 at which time Mr O’Brien again represented the first and third Applicants, the second Applicant being then represented by Mr R Jones MLC. On each occasion the first Respondent was represented by Mr A Seglenieks of the Department of Environment and Heritage and the second Respondent was represented by Mr P Hanks QC.
5. The documents lodged by the Minister pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T18. Other written material was tendered on behalf of the parties admitted as exhibits and marked accordingly, namely:
Exhibit
Document
Date
TD1
Documents lodged under section 37 of the Administrative Appeals Tribunal Act being T1 – T18, p1-296
A
Applicant’s Statement of Issues
01/06/2002
B
Document titled “West Nyangay”
C
Journal Article abstract by Gordon Grigg: “Comparative forage requirements of kangaroos and sheep a reality check.”
D
Letter from Dr Gunn at the Animal Gene storage Resource Centre of Australia to Dr Hale
22/11/2001
E
Australian Wildlife Protection Council letter to Pat O’Brien
30/05/2002
F
Article titled: “Confessions of a Kangaroo Shooter” by David Nicholls
G
National Parks & Wildlife Service submissions on Draft KMP
08/10/2001
H
Email from Greg Hood
26/06/2000
J
Article titled: “Kangaroo number relevance” by David Nicholls
19/06/2002
K
Article titled: “Lifetime reproductive success in a population of female red kangaroos (Macropus rufus) in the sheep rangelands of western New South Wales: Environmental effects and population Dynamics” by A D Bilton & D B Croft
L
Article titled: “Disease of Kangaroos, human health concerns and the implications for an expanding meat trade utilising Australia’s marsupials” by Dr David Obendore
M
Australian Wildlife Protection Council Brochure
N
Article titled: “Conservation benefit from harvesting kangaroos; status report at the start of a new millennium” by Gordon Grigg
O
Sydney Morning Herald Article titled: “Fish thrown back means small fry” by Robert Cooke
New Scientist Article
08/07/2002
13/07/2002
P
CV of Dr David B Croft
Q
CV of Dr Auty, Witness Statement and Photographs
26/11/2002
1
CV of Dr B Tenhumberg & Witness Statement
2
Printout of Dr B Tenhumberg’s presentation
3
CV & Witness Statement of Dr Hale
4
Printout of Dr Hale’ s presentation
5
Statement of Evidence of Joshua Gilroy
14/11/2002
6
NPWS Estate map & KMZ
7
CV and Statement of Professor Gordon Grigg
8
Printout of Professor Grigg’s presentation
9
Booklet titled: “Overview of background information on kangaroo management”
October 1999
10
CV and Statement of Dr Anthony Pople
11
Printout of Dr Pople’s presenstation
12
CV and Statement of Steve McLeod
13
Printout of Dr McLeod’s presentation
6. he following persons gave oral evidence upon which they were cross-examined:
· Dr Gunn - Senior Research Fellow at Monash Institute Reproduction and Development, Fellow of the Australian College of Veterinary Surgeons, a member of the University staff at Monash University since 1994, Project Director of the Animal Gene Storage and Resource Centre of Australia.
· Dr Brigitte Tenhumberg - Ecology Centre, Department of Zoology and Entomology University of Queensland.
· Dr Peter Hale - Executive Director of the Ecology Centre, coordinator Conservation Biology Program adjunct lecturer in Zoology at the University of Queensland.
· Mr Joshua Gilroy - Manager Conservation Programs and Planning of the Western Directorate of the National Parks and Wildlife Service of New South Wales.
· Professor Gordon Grigg - Professor of Zoology the University of Queensland and Deputy Director Centre for Conservation Biology.
· Dr David Croft - Wildlife Biologist, Senior Lecturer School of Biological Earth and Environmental Sciences University of New South Wales, Chair Fowlress Gap Management Committee.
· Mr John Auty - Former Principal Veterinary Surgeon (special projects) and Assistant Director Australian Bureau of Animal Health.
· Dr Tony Pople - Senior Research Officer, the Ecology Centre Department of Zoology and Entomology, University of Queensland, expertise in population ecology.
· Dr Steve McLeod - Research Officer, New South Wales Department of Agriculture.
BACKGROUND
7. The Director-General of National Parks and Wildlife is responsible for the administration of the National Parks and Wildlife Act 1974 (NSW) (“the NPW Act”). The objects of the NPW Act include the conservation of nature, including habitat, ecosystems and the biological diversity of species (s 2A(1)).
8. The NPW Act gives an authorised officer the power to issue licences to harm, dispose of or sell fauna (ss 121 123), to buy or sell fauna (s 124), to buy or sell skins (s 125) and to import into the State and export from the State protected fauna (s126). The Director-General and the NPWS have developed, from time to time, management programs to guide the exercise of those powers.
9. In 2000, the NPWS commenced a review of its then current Kangaroo Management Program in consultation with stakeholders, through the New South Wales Kangaroo Management Advisory Committee.
10. The review culminated in the development of a draft Kangaroo Management Program for 2002-2006 (“the Draft Management Program”). A copy of the Draft Management Program is reproduced at T 4/21-57.
11. The Draft Management Program applied only to the Red Kangaroo (Macropus rufus), the Western Grey Kangaroo (Macropus fuliginosus), the Eastern Grey Kangaroo (Macropus giganteus) and the Wallaroo (Macropus robustus robustus) (“the Kangaroos”).
12. Between 14 July and 31 August 2001, the NPWS released the Draft Management Program for public comment: see T4/19-20. A total of 65 submissions were received by the NPWS.
13. The New South Wales Kangaroo Consultative Committee provided advice to the NPWS regarding the Draft Management Program and the content of the submissions.
14. On 24 July 2001, the NPWS forwarded the Draft Management Plan to Environment Australia. Environment Australia placed the Draft Management Program on public exhibition from 21 August 2000 to 18 September 2001.
15. Environment Australia gave notice of the Draft Management Program to 29 persons and organisations listed on the register maintained under s 9A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth) (“the WP Act”). As a consequence of the Program being placed on public exhibition and the giving of notice, Environment Australia received comments from 15 persons and organisations. The majority of these comments were not from persons or organisations on the register so maintained under s 9A of the WP Act. Copies of the submissions, and a report summarising the submissions, are reproduced at T12/126-237.
16. By letters dated 27 August 2001, the Minister sought comments from the appropriate Ministers of the Crown of each State and Territory in relation to the Draft Management Program. Copies of the letters are reproduced at T7/61-68.
17. The Victorian and the Northern Territory Ministers made specific comments regarding the Plan. All other Ministers stated that they either supported the Program or had no specific comments to make. Copies of the Ministerial responses, and a report summarising the responses, are reproduced at T13/264-273.
18. In October 2001, staff of the NPWS and Environment Australia met to consider all submissions received, together with the comments of the New South Wales Kangaroo Management Advisory Committee. The Draft Management Plan was amended having regard to the received submissions and comments.
19. On 31 October 2001 the New South Wales Minister for the Environment made an application to the Minister for approval of "the New South Wales Kangaroo Management Program (a management program for the utilisation of four kangaroo species in NSW)" (being the Draft Management Plan as so amended) under s 10 of the WP Act. The submitted Kangaroo Management Program was restricted in its application to the four named Kangaroo species and was to be current from 1 January 2002 to 31 December 2006. A copy of the Management Program is reproduced at T8/70-94.
20. The Scientific Committee on Wildlife use considered the submitted Management Program at a meeting on 19 and 20 November 2001. The Committee recommended that the Minister approve the Management Program. A copy of the draft summary record of the Scientific Committee is reproduced at T11/124-125.
21. On 11 December 2001, the NPWS (the Designated Authority) submitted a report on the Management Program and supporting documents to the Minister. A copy of the report record of the Scientific Committee is reproduced at T9/95-98. A copy of the Designated Authority's assessment of the Management Program is reproduced at T14/274-279. On 13 December 2001, the Minister approved the Management Program as so submitted pursuant to s 10 of the WP Act. A copy of the draft Minister's approval is reproduced at T16/287,
22. On 26 February 2002, Mr J P O'Brien President of the Wildlife Protection Association Inc, lodged an application for the review of the decision of the Minister to approve the Management Program (T5). A copy of the application for review is reproduced at T1/3-5.
ISSUES BEFORE THE TRIBUNAL
23. The overall question is as to whether the management program should be approved pursuant to section 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982. That Act has since been repealed and the provisions concerning the approval of management plans are now contained in the Environment Protection and Biodiversity Protection Act 1999 (" the EPBC Act”). The repeal and subsequent enactment do not affect the issue to be determined by the Tribunal.
24. In order for the Minister to approve a management plan he is required by subsection 10 (1B) of the WP Act, and by Regulation 5 of the Wildlife Protection (Regulation of Exports and Imports) Regulations) 1984 ("the Regulations"), to be satisfied as to certain matters. These are set out below and represent issues for determination by the Tribunal.
25. In these reasons, as in the legislative prerequisites to approval, a reference to "kangaroo" is a reference to the species that are subject to the Management Program, namely the Red Kangaroo (Macropus rufus), Western Grey Kangaroo (Macropus tuliginosus), Eastern Grey Kangaroo (Macropus giganteus), and the Wallaroo (Macropus robustus robustus).
26. The prerequisites raised by subsection 10 (1B) of the WP Act are, insofar as the decision under review is concerned, as follows: -
(a) Whether there is legislation relating to the protection, conservation or management of kangaroos in force in New South Wales;
(b) Whether the legislation applies throughout New South Wales; and
(c) Whether this legislation is effective.
27. The prerequisites raised by Regulation 5 may be summarised, for the purposes of the decision under review, as follows:-
(a) Whether there is sufficient information available to the Designated Authority, concerning the biology and ecology of kangaroos such as to enable the Designated Authority to evaluate the management plan;
(b) Whether the Designated Authority has held discussions with all relevant bodies (in this case, the New South Wales National Parks and Wildlife Service);
(c) Whether the Management Program contains measures to ensure that the taking of the kangaroos in the wild under the Management Program will be carried out so as to maintain kangaroos in a manner that is not likely to cause irreversible changes, or have long-term deleterious effects on the kangaroos or their habitat;
(d) Whether the Management Program provides for adequate monitoring and assessment of the effects of taking kangaroos;
(e) Whether the Management Program provides for a response to changes in kangaroo populations and habitats, and to changes in the knowledge and understanding of the biology and ecology of kangaroos; and
(f) Whether the Management Program is consistent with the object of the Act, namely "to comply with the obligations of Australia under the Convention (Convention on International Trade in endangered species of wild fauna and flora (Cites)) and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries".
28. It should also be noted that Regulation 5 provides that the Minister is to be satisfied of the matters set out above in paragraphs 5 (c), (d), (e), and (f) only after receiving and considering advice from the Designated Authority.
DISCUSSION OF ISSUES AND EVIDENCE
29. The decision, reproduced at T16/287, declared that the Management Program, as developed by the Director-General of National Parks and Wildlife and submitted by the New South Wales Minister of the Environment, is an approved Management Program for the purposes of the WP Act, subject to certain conditions.
30. The Applicants contended that the decision under review should be set aside on the grounds that the Minister was not, or should not have been, satisfied as to the matters prescribed in s 10(1B) of the WP Act and Regulation 5 of the Regulations.
31. It was submitted on behalf of the Respondents that the Applicants had misconceived the nature of the Tribunal's review. The Tribunal’s role is not to determine whether the Minister’s decision was defective or vitiated by (for example) an absence of evidence. The task of the Tribunal is, in effect, to make the decision again. It is required to consider and answer the questions raised by the Act and the Regulations in the light of all the material before it - including the material before the Minister and the additional evidence placed before the Tribunal. The review is both merits-based and de novo; with the Tribunal required to make the correct or preferable decision on the basis of the material before it.
32. Counsel for the second Respondent identified, correctly in the Tribunal’s view, nine questions, which the Tribunal must decide. A difficulty for the Applicants, particularly the first Applicant, was that many of the matters the subject of complaint were outside of the scope of the Tribunal’s power to review. Much of the material tendered before the Tribunal by or on behalf of the Applicants was not relevant to the issues before it such as matters relating to animal welfare and the question of commercial utilisation of wildlife.
33. Again, submissions were made in relation to meat hygiene, but after lengthy discussion, the Applicants were unable to point to any statutory provision or Regulation which might make such a consideration relevant.
34. Other concerns of the Applicants, while perhaps being of only peripheral relevance, have been addressed in the discussion of the questions that the Tribunal must decide.
Consideration of comments
35. The first task for the Tribunal is, according to s 98(3) of the WP Act, to consider all given under s 98(2) of the WP Act.
36. This review is not concerned with the process by which the Director-General and the New South Wales Minister developed the draft Management Program, or with any consultations undertaken at that stage. The only relevant consultation is that undertaken by the Designated Authority and the Respondent, pursuant to s 9B of the WP Act, the draft Management Program was submitted to the Respondent and before the final form of the Management Program was submitted for approval.
The WP Act as here relevant provides:
9B Views of concerned persons to be considered before making declarations
(1) Where the Minister proposes to:
…
(a) declare an approved management program under section 10; or
…
the Designated Authority must send each person and organisation on the register maintained under section 9A written notice of the proposal and, without contravening the Privacy Act 1986 , sufficient information to enable the person or organisation to consider adequately the merits of the proposal.
(2) A person or organisation on the register may give the Designated Authority written comments on the proposal within one month after its receipt of the notice or such longer period as the Designated Authority determines.
(3) The Minister is not to make the proposed declaration unless the Minister has considered all comments on the proposal given under subsection (2).
37. There is evidence before the Tribunal to the effect that comments were received from 15 persons or organisations, most of whom were not on the Section 9A register. Nonetheless all were considered. The comments given to the Designated Authority are reproduced at T12/144-237 and are summarised in the table at T12/127-143. The table also sets out a response to each issue raised in the comments developed by Environment Australia, the name to which the Minister’s Department is generally referred. The NPWS responded to the comments and its response is reproduced at T12/238-263.
38. Mr O’Brien contended that community comments have been ignored, or dismissed out of hand as though having no relevance. He suggested that responses such as “the plan is sufficiently flexible to incorporate new information…“ (T12/134) was inadequate in that when new information became available (eg Exhibit K) it was not acted upon. He submitted that there is no evidence that any information, or matter of concern, provided by the community, had been responded to.
39. It was submitted on behalf of the Director-General that the matters raised by the comments were adequately addressed in the responses from the Department and from the NPWS.
40. Comparing the draft Management Program T4/21) and the final version which was approved reveals some amendments were made which, in the Tribunal’s view are significant. For example, the Goals of the Management Program were amended so as to include indicators of achievement of the program goal, monitoring abundance, distribution and viability, and reiterates that the program is in relation to 4 species only. These were issues raised in the comments submitted to the Designated Authority. Similarly the Objectives of the Program were amended so as that the management (licensing) of commercial use and monitoring of industry compliance was in accordance with the Code of Practice for the Humane Shooting of Kangaroos (Code of Practice). The reference to the Code of Practice, was a significant addition, given the nature of many of the concerns expressed in the submissions received by the Designated Authority.
41. The first Respondent submits, correctly in the Tribunal’s view, that section 9B obliges the Minister to consider all comments. It does not require him to adopt all, some or indeed any of the views expressed.
42. The Tribunal is satisfied that the views of concerned persons were considered before a decision was made to declare the approved Management Program, as varied following consideration of the comments, adequately addressed the relevant matters raised in the comments.
A Management Program for the purposes of the WP Act
43. The second question, posed by s 10(1B)(b) of the WP Act, is whether the Management Program is a management program that relates to the protection, conservation or management of particular animals.
44. The goals and objectives of the Management Program are set out at TI0/100. They are:
GOAL OF THE MANAGEMENT PROGRAM
Maintain viable populations of kangaroos throughout their ranges in accordance with the principles of ecologically sustainable development.
The following indicators will be used to ensure the program goal is achieved and are based primari1y on the direct monitoring of kangaroos using aerial surveys:
· Abundance of the four commercially taken kangaroo species;
· Distribution of the four commercially taken kangaroo species; and
· Viability of the four commercially taken kangaroo species (populations that are not declining in the long-term)
Data from indirect monitoring (returns from the kangaroo industry) will also be available.
OBJECTIVES OF THE PROGRAM
The objectives of this management program are:
1. MANAGEMENT (LICENSING) OF COMMERCIAL USE. Manage the utilisation of the four kangaroo species in accordance with the provisions of the WP Act (which contains the framework for the licensing) and Regulation, NSW Government policies, the Code of Practice for the Humane Shooting of Kangaroos and this management program.
2. ADAPTIVE MANAGEMENT. Promote adaptive management experiments and studies using historical data from kangaroo industry returns and population data to improve our understanding of kangaroos and their interaction with environmental, social and economic systems.
3. MONITOR KANGAROO POPULATIONS. Monitor kangaroo populations and set commercial quotas to ensure kangaroos are utilised in accordance with the management program goal and objectives. Direct and indirect monitoring will be undertaken in all areas where kangaroos are commercially utilised.
4. MONITOR INDUSTRY COMPLIANCE. Monitor the kangaroo industry to ensure compliance with this management program, licence conditions, the requirements of the WP Act and regulation and the Code of Practice for the Humane Shooting of Kangaroos.
5. PROGRAM AUDIT AND REVIEW. Undertake regular audits and a final program review in consultation with affected community, private sector and government stakeholders to ensure that the management is fully informed and to ensure outcomes remain consistent with the goal and objectives of the management program.
6. COMMUNITY AWARENESS AND PARTICIPATION. Promote best practice in all aspects of this program through informed public and private sector participation in management of the utilisation of kangaroos.
45. The Management Program prescribes measures for the issuing of licences (TI0/101-106), for adaptive management (TI0/107-108), monitoring (TI0-/109-111), monitoring of compliance (TI0/112), and program audit and review (TI0/113-114).
46. No submission was made by or on behalf the Applicants that the Management Program did not relate to the protection, conservation or management of particular animals as such. Their submissions related primarily to the adequacy of the program. The Applicants contended that the Management Program was flawed because it omits a sub-species subject to commercial killing, namely the ‘Euro’ (Macropus robustus erubescenspus robustus erubescens), a species which Dr Croft described as ‘dramatically different’ to the red kangaroo. Dr Croft’s evidence (Trans 20/11 p 82) to the effect that the Euro is a resilient sub-species existing in ‘plague’ proportions.
47. It was submitted on behalf of the Respondents that the omission of a sub-species from the Management Program has only one consequence - if any of that species is taken in New South Wales, none of its product can be exported from Australia. We agree with this submission. Its omission from the Management Program is therefore irrelevant to the question as to whether the Management Program should have or should not be approved.
48. The Applicants further contend that the Management Program is flawed in that it also omits species which are subject to non-commercial shooting - including the Agile wallaby (Macropus agilis), the Whiptail wallaby (Macropus parryi), the Red-necked wallaby (Macropus rufogriseus) and Swamp wallaby (Wallabia bicolor). The Respondents say that the issue of protection to species subject to non-commercial shooting is likewise irrelevant to approval of the Management Program. Their position is that non-commercial shooting is an activity not intended to be embraced by the Management Program as its purpose is to provide a framework within which commercial shooting, supported by the issuing of export permits, may take place. This is clearly so.
49. It is true that that the Management Program proposes the same plan for four different species. The Applicants say that this feature is detrimental to it. Each species they contend should be the subject of individual consideration. There is no statutory support for this position. As has been earlier indicated the declaration of a management program is dependant upon the decision maker being satisfied as to compliance with specified prerequisites and only those prerequisites. We do not consider that a relevant issue can arise in relation to a consideration not so identified. There is not a statutory or regulatory requirement to differentiate between species. If anything this aspect would be one that could be raised by way of comments on a draft proposal.. The Management Program is in respect of four named species only. It does not purport to be a management program for kangaroos as a whole in New South Wales. The declaration by the Minister (T3/17) and the Management Program itself specifically limit its application to ‘The Utilisation of Four Kangaroo Species in NSW’. The WP Act places no requirement on the Minister to make a declaration in respect of kangaroos at large or indeed in relation to any particular species.
50. The Applicants argue that there is no provision in the Management Program for the commercial and aesthetic needs for kangaroos such as eco-tourism. Neither the WP Act nor the Regulations are concerned with a comparison between economic uses of and for kangaroos. The question whether more money might be derived from eco-tourism if the Management Program was curtailed is irrelevant. Equally irrelevant is the true economic value of the activities carried out under the Management Program.
51. The Tribunal observes that while alternative uses of kangaroos might be a matter worthy of consideration in general terms it is not one with which the Tribunal can be concerned, the present inquiry as aforesaid is limited by the WP Act and the Regulations.
52. The Tribunal is satisfied that the Management Program is one which relates to the protection, conservation or management of 4 named species of kangaroo, that is “particular animals”.
Effective legislation in force
53. The third question, posed by s 10(IB)(c)-(e) of the WP Act, is whether there is "effective" legislation in force in New South Wales relating to the protection, conservation or management of the animals that are the subject of the Management Program. “Effective” is not defined by the WP Act. The Macquarie Essential Dictionary defines effective as “serving to effect the purpose, producing the intended or expected result”.. The NPW Act, it was submitted on behalf of the Respondents, is properly described as effective legislation relating to the protection, conservation or management of kangaroos. The NPW Act applies throughout New South Wales. All species of kangaroo are protected fauna as defined in s 5(1) read with Schedule 11. The harming of kangaroos is prohibited by s 98(2)(a); but it is a defence to prosecution if it can be proved that the accused person acted under and in accordance with a licence issued under (relevantly) ss 120 to 123.
54. The licensing provisions establish a framework for the issuing of licences so as to authorise the killing of identified numbers of a species of fauna, subject to conditions and limitations attached to the licences. The provisions contemplate that, unless expressly indicated, the licence does not authorise the harming of fauna in certain areas, including national parks. In the decision under review the Minister also specifically referred (T2/11) to licences being issued to the owner/occupier of land where kangaroos are to be utilised, to the shooter and the seller, and also to those who buy, process or sell kangaroos.
55. It is noted that the Threatened Species Conservation Act 1995 (NSW) makes provision for the listing and protection of endangered and vulnerable species. The four species of kangaroos the subject of the Management Program are not endangered or vulnerable species so listed and sought to be protected.
56. The Applicants maintain that the Code of Practice for the Humane Shooting of Kangaroos is deficient as it does not cover the treatment of ex-pouch young, leading to unnecessary cruelty to these animals. In addition it was said that there is minimal monitoring of the Code. Both of these aspects may be the subject of legitimate animal welfare concern but the only question posed by section 10B(lB) of the WP Act, is whether there is effective legislation relating to the protection, conservation or management of kangaroos - and that criterion does not relate to or bring into question humane or otherwise treatment of particular animals.
Having in mind the above considerations the Tribunal is satisfied that there is effective legislation in force in New South Wales relating to the protection, conservation or management of the four species of kangaroos that are the subject of the Management Program.
Sufficient information concerning the biology and ecology of each species
57. The fourth question, posed by s 10(2) of the WP Act and Regulation 5(1)(a), is whether there is sufficient information concerning the biology and ecology of each species intended to be subject to the Management Program to evaluate a management program for that species.
58. The evidence of Professor Grigg and Dr McLeod in, the Situation Analysis Report:
Current state of scientific knowledge on kangaroos in the environment, including ecological and economic impact and effect of culling (prepared by Olsen and Braysher) and Chapter 3 of Commercial Harvesting of Kangaroos in Australia (prepared by Pople and Grigg) demonstrates the wide range of information available on the biology and ecology of the four species that are subject to the Management Program - the red kangaroo, the eastern grey kangaroo, the western grey kangaroo and the common wallaroo.
59. The evidence includes that of Dr Brigitte Tenhumberg, who in referring to Dr Hale’s report said:
In the light of that study it is likely that the current size of the unharvested area and the dispersal rate between harvested and unharvested populations are sufficiently large to counteract the effect of size selective harvesting.
60. Dr Tenhumberg said that the presence of large male kangaroos is unlikely to be critical to population viability. Older male kangaroo are unlikely to be of higher genetic quality and smaller kangaroos at a given age are unlikely to have a lower fitness and at present, size selective harvesting is unlikely to result in smaller kangaroos of a given age.
61. Dr Hale was asked in 2001 by NPWS to assess the likelihood that kangaroo harvesting could result in permanent genetic changes in populations. In his evidence, he said that gene diversity is roughly related to population size (P72). Earlier he said that the ‘effective population size’, as it is called, necessary to maintain gene diversity, can be pushed to very low numbers, less than 500 breeding individuals. Even if between 10 and 20 per cent of the population is harvested there is still no selection out of animals that might have genes for large size (P70). He said that the population would not be at risk until culling had reached, perhaps more than 50 per cent (P76).
62. Dr Gunn was of the view however that there was insufficient information about the structure of the genetic population of the kangaroos. One concern was that studies only examined short term effects and that decisions were being taken without a close look at the scientific data based on the genetic studies that should be undertaken to really define the effect of shooting the larger males. In other species, especially fish, studies have shown that by removing all the bigger fish out of a population the resulting generations in that same species have been reduced in size. He also gave examples of the North American bison and elephant and rhinoceros populations in different parts of the Africa which had been brought to the brink of extinction. He was quite specific however that he could not say that the taking of large kangaroos will have a long term deleterious effect on the gene pool of kangaroos, only that it is unknown as to what would happen to the population of kangaroos if the large animals are constantly taken all the time.
63. It was suggested to Dr Gunn that the chance that kangaroo harvesting will affect gene diversity and evolutionary potential in genetic populations of kangaroos is negligible to which he replied that he did not see how it can be presumed that culling will have no effect on the genetic diversity.
64. On the basis of the whole of the material before the Tribunal, the Respondents submitted that the evidence did not suggest that there is inadequate information concerning the biology and ecology of each species to allow evaluation of the Management Program.
65. Dr Croft did not in the course of his evidence suggest that the available information was inadequate for the purposes of evaluating the Management Program.
66. The Tribunal is satisfied that it is unlikely that the Management Program will impact on the genetic structure of the four species. The evidence leads the Tribunal to the view that there has been, and continues to be considerable research into kangaroo populations the same revealing, very broadly speaking, that kangaroos are remarkably resilient, even in times of drought and harvesting.
67. There is sufficient information concerning the biology and ecology of each of the 4 species to allow the Tribunal to evaluate the Management Program
Discussions with all relevant bodies
68. The fifth question posed by s 10(2) of the WP Act and Regulation 5(1)(c), is whether the Designated Authority has held discussions with all "relevant bodies". "Relevant body" is defined in Regulation 5(2) to mean a body having, under State, Commonwealth or Territory law, powers or duties for the protection, conservation or management of animals or plants subject to the Management Program. For the purposes of the Management Program, that body is the Director-General of NPWS - who administers the NPW Act. The material in the T-documents, T1 to T18, evidences discussions between the Designated Authority and the Director-General -T12/126 refers to discussions with the New South Wales Kangaroo Manager, and the preparation by the NPWS of a summary of submissions that was then considered by the Designated Authority.
69. The requirement for the discussions with the Director-General provided for by s 78(1) of the WP Act, which directs the Minister to ensure that Management Programs relating to the taking of animals are formulated in accordance with procedures that provide for the participation of appropriate State and Territory Ministers. The views of all State and Territory Ministers on the draft Management Program were sought by the Minister on 27 August 2001- T7/61-68.
70. The responses of those State and Territory Ministers appear at TI3/267- 273; and were summarised in Attachment D in the submission to the Respondent seeking approval of the Management Program - see TI3/264. Their responses (T13) formed part of the brief to the Minister. The Tribunal finds that the Designated Authority held discussions with all relevant bodies, in accordance with s 10(2) of the WP Act and Regulation 5(1)(c).
Measures to avoid irreversible changes or deleterious effects
71. The sixth question, posed by s 10(2) of the WP Act and Regulation 5(1)(d), is whether the Management Program contains measures to ensure that the taking of kangaroos in the wild, under the Management Program will be carried out so as to maintain the species or sub-species in a manner that is not likely to cause irreversible changes to, or have long- term deleterious effects on, the relevant species or sub-species, or its habitat.
72. On behalf of the Minister it was submitted that this prerequisite requires more than a suggestion that there might be such irreversible changes or long-term deleterious effects.
73. As already noted in these reasons the Applicants made mention of the possible adverse effects on genetic viability of kangaroo populations though selective harvesting. They also contended that the Management Program is inadequate in that quotas are determined from population figures assessed six months prior to the beginning of the year. This does not make allowances for significant reductions in populations which may have occurred as a result of drought or epidemic mortalities. Quotas set as a result of a lack of current information on populations may lead to a mortality as high as 30-50 per cent of the remaining populations.
74. Dr Auty, giving evidence on behalf of the Applicants, expressed the view that it was inappropriate to separate the quota from the Management Program. The Respondents however submitted that fixing the quota, year by year according to guidance provided by the Management Program, does not lead to the Management Program failing to meet the requirements of the WP Act or the Regulations.
75. It was also submitted by the Applicants that the industry is inadequately monitored with just two compliance officers for the entire commercial zone to monitor whether up to two million kangaroos have been killed legally, and, in accordance with the quotas, and that there is virtually no monitoring of the non-commercial killing of kangaroos and wallabies. Extensive evidence was given however by Dr Pople as to the continual counting of kangaroo populations.
76. The Management Program provides for the annual setting of quotas for each of the species or sub-species, with separate quotas being determined for each of the kangaroo management zones. The adaptive management approach adopted in section 2 of the Management Program is intended to promote responsiveness to information collected in the administration of the program, and to ensure that the effects of the Management Program are kept under review. The quota, the controls on taking kangaroos (including the close monitoring of shot kangaroos through the tagging system) and the fact that there is to be no shooting of kangaroos in substantial areas of the State is said to ensure against irreversible changes to, or long-term deleterious effects on, the relevant species or sub-species.
77. Dr Hale is of the opinion that there is a negligible chance that kangaroo harvesting will affect genetic diversity and evolutionary potential in genetic populations of kangaroos. Dr Tenhumberg’s view was that the current size of the unharvested area and the dispersal rate will counteract the effect of size-selective harvesting. Dr Pople gave evidence to the effect that the proportional harvesting strategy, based on annual monitoring of kangaroo populations, does not threaten the viability of the species (including the long term survival of substantial populations).
78. Dr Pople and Dr McLeod both gave evidence that the Management Program provides an adequate framework for monitoring populations and setting quotas in the current drought; and that the quota-setting process contemplated by the Management Program does not threaten irreversible changes to, or long-term deleterious effects on, the kangaroos, or their habitat. The evidence of Dr McLeod was particularly telling:
(a) There is no evidence that the persistence and viability of kangaroos are affected by harvesting. Rather, the evidence supports the adoption of a 17per cent quota because the risk to the sustainability of kangaroo populations has been shown to be low.
(b) The differences between the four species of kangaroos covered by the Management Program are not important in determining harvest strategies because there are no qualitative differences between the species.
(c) Because the rate of harvesting (the quota) is set conservatively, the kangaroo population can cope with the higher harvest rate that would result when the population declines during a drought. Although the harvest rate may be higher than (say) 17 per cent, it will not have an unacceptable effect on the long-term sustainability of kangaroo populations.
(d) The mortality resulting from harvesting is not "additive" to the drought-induced mortality. In fact, the harvest mortality is compensatory - it contributes to enhanced prospects of survival for the population.
79. The counting of populations and the setting of quotas are approached on a conservative basis, and are kept under review through indirect monitoring (see T10/111); and the levels of population reduction referred to in the evidence of Dr Croft (up to 50 per cent) only occur over several years. For those reasons, the Management Program provides the appropriate framework of measures to ensure taking kangaroos under the Management Program will maintain the species and avoid irreversible changes in the species and their habitat.
80. In particular, the perceived need for additional (or supplementary) monitoring during severe drought, as proposed on behalf of the Applicants is not supported by any of the scientific evidence. Dr Pople’s evidence was that such additional monitoring would be only of marginal value - because the current quota setting system does not threaten the maintenance of the species or pose a risk of irreversible changes. Dr McLeod did not support additional monitoring and maintained that the adequacy of the Management Program ensured that there would not be an over-exploitation of the species.
81. The Tribunal finds that the Management Program contains measures to ensure that the taking of kangaroos in the wild, in accordance with the Management Program will be carried out so as to maintain the species in a manner that is not likely to cause irreversible changes to, or have long- term deleterious effects on, those species, or their habitat.
Adequate periodic monitoring
82. The seventh question, posed by s 10(2) of the WP Act and Regulation 5(1)(e), is whether the Management Program provides for adequate periodic monitoring and assessment of the effects of taking kangaroos under the Management Program on the species or sub-species to which the kangaroos belong, their habitat and any other specified species or sub-species.
83. It was contended by the Applicants that there is great uncertainty as to the accuracy of population counting methods with biologically improbable variations in population estimates occurring on a regular basis and not just as a result of changing correction factors. The Applicants submitted that the Management Program fails to provide adequate protection to species subject to non-commercial shooting through lack of training for shooters in order to enable them to identify the species being shot.
84. Dr Mcleod gave evidence that from his experience working with shooters full time professionals are extremely good at identifying individuals in the field. Part timers significantly outnumber the full timers but the vast majority of animals are actually taken by full time professionals. In his experience shooters generally are extremely professional and are very good at judging not just the sex but the species and the size of the animals that they shoot.
85. The Respondents submitted that section 3 of the Management Program contains a comprehensive program for monitoring kangaroo populations and determining commercial quotas. The techniques used for conducting surveys of kangaroo populations are explained in the evidence of Professor Grigg and Dr Pople and Dr McLeod. The Tribunal accepts the evidence that the techniques described in their evidence are soundly based and have been applied with appropriate controls so as to allow a reliable, albeit conservative, estimate of the populations of kangaroos in the relevant parts of New South Wales.
86. The adequacy of the periodic monitoring provided in the Management Program, even during a severe drought, was supported by Dr Pople and Dr McLeod. None of the witnesses provided any evidence that the Management Program’s monitoring program (including direct and indirect monitoring) is inadequate for the purposes of Regulation 5(1)(e).
87. Mr Gilroy gave evidence about the range of possible quotas as a percentage of the kangaroo population as an indicative range, which remains subject to annual assessment. The Respondents pointed out that assessment of this question does not involve a review of the quota proposals for a particular year. The setting of the quota involves a distinct decision by the Minister and that decision is not being reviewed by the Tribunal. However, it should be noted that the Management Program provides for the quota to be set on an annual basis, by reference to the current population count; the 15 per cent and 17 per cent quotas referred to in the Management Program are indicative and are subject to annual assessment; in fact, the quota set for 2002 was 13 per cent and 17 per cent.
88. The Tribunal finds that the regular surveys of kangaroo populations and the setting of quotas, as an aspect of adaptive management, are adequate for the purposes of Regulation 5(1)(e).
Responsive to changes in populations. habitats and knowledge of biology and ecology periodic monitoring
89. The eighth question, posed by s 10(2) of the WP Act and Regulation 5(1)(f), is whether the Management Program provides for a response to changes in populations and habitats of the kangaroos, and in knowledge and understanding of the biology and ecology of the kangaroos.
90. The Applicants submitted that the Management Program is too rigid and inflexible and does not take into account rapidly changing conditions.
91. Section 3 of the Management Program however makes it clear that monitoring of kangaroo populations and harvesting is integral to the Management Program. The effects of harvesting on kangaroo populations has been studied extensively and is discussed in detail in Chapter 6 of Commercial Harvesting of Kangaroos in Australia (Exhibit 9).
92. The setting of an annual quota under the Management Program by reference to information derived from monitoring subject to approval by the Minister in each year enables a response to changes in population of kangaroos. Similarly, adaptive management will promote responsiveness to changes in knowledge and understanding of the biology and ecology of the kangaroos.
Consistency with the object of the WP Act
93. The ninth and final question, posed by s 10(2) of the WP Act and Regulation 5(1)(g), is whether the Management Program is consistent with the object of the WP Act. The object of the WP Act is contained in s 3:
"to comply with the obligations of Australia under the Convention and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries".
“The Convention” is the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Article IV of the Convention is reflected in Regulation 5(1)(g).
94. The first Respondent brought to the Tribunal’s attention that the Convention refers to the humane treatment of live specimens (only). The goal of the Management Program is to maintain viable populations of kangaroos throughout their ranges in accordance with the principles of ecologically sustainable development. The Management Program provides measures to control and monitor the taking of kangaroos and to monitor population trends. The scientific basis for monitoring and quota setting is consistent with the principles applied to the sustainable use of wildlife. The evidence of Professor Grigg, Dr Pople, Dr McLeod and Dr Hale is particularly relevant here, and supports a positive finding in relation to this criterion.
Other matters
95. In addition to the considerations earlier discussed the Applicant’s raised the following matters which were of concern to them.
· The first Applicant referred to a previous decision of the Administrative Appeals Tribunal (Re Fund for Animals Ltd and Minister of State for Arts, Heritage and Environment unreported, 6 June 1986; That matter was concerned with a kangaroo management plan for Queensland, and the decision was set aside on what amounted to technical grounds ie. the plan approved by the Minister was not the plan actually operating in that State). The Tribunal did, nevertheless, go on to consider the merits of the application, which comments the Respondents submitted, must be regarded, at best, as obiter. The Tribunal is of the view that the 1986 decision is not of any assistance to it in this matter, given that it was concerned with a different plan far removed temporally, and that the Tribunal in the present matter has vastly different evidence before it than that which was before the Tribunal in the earlier case.
· The Applicants submitted that ecological sustainability and commercial viability are “strange bedfellows”. The Respondents maintains that the two concepts are not incompatible but have a “symbiotic relationship”.. If the kangaroo population was not ecologically sustainable, the use of kangaroos as a resource would not be commercially viable. A commercial use of the resource that ensures the resource’s ecological sustainability will be viable beyond the short-term. As mentioned at the outset many of the concerns which the Applicants have in relation to the Management Program are simply not matters which the Tribunal can take into account. The Tribunal is bound to consider only those matters referred to in the legislation and the Regulations. While the Tribunal regards the Applicants’ concern for the environment to be both legitimate and sincere those considerations in the context of this application are outside of the relevant statutory provisions.
DECISION
96. The Tribunal affirms the decision of the Minister for the Environment and Heritage to declare the Kangaroo Management Plan to be an approved Management Program for the purposes of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: .......................................................................................
Associate
Date of Decision 13 March 2003
Representative of the First Applicant Pat O ‘Brien
Representative of the Second Applicant Richard Jones MLC
Solicitor for the First Respondent Aleks Seglenieks
Counsel for the Second Respondent Peter Hanks
Solicitor for the Second Respondent Elizabeth Glancey
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