The Majura Kangaroo Kill AAT Appeal!
Defence contractors have already culled about 4,000 kangaroos on the site. They had planned to shoot about 7,000. The Defence Department and ACT Government say the cull is necessary to protect endangered native grasslands. But Animal Liberation sought the stay, arguing the kangaroo population does not pose an immediate threat to the ecosystem and a review should be carried out before a cull takes place. Animal Liberation's lawyer Malcolm Caufield says the Tribunal's ruling sets a precedent and sends a strong message to the ACT Government. "It gives right to a public interest group that cares about the rights of animals to do something if the Government is acting illegally," he said. Spokeswoman for the Australian Society for Kangaroos Nikki Sutterby says it is a significant win. "It's a fantastic victory for kangaroos because for the first time a judge has made the decision on this instead of the Government," she said. "And the people out there that have a real interest in this and really quite disturbed by this, are being represented." The matter will be back before the Tribunal next month. *ABC Whatever the Final Decision is, we have had two signicant wins already. Quite simply the first appearance before the Tribunal achieved two important things. First, Animal Liberation , as the applicant to the case, gained legal standing in the ACT to argue such cases. This achievement should not be under valued for what we do now and into the future. Second, a stay on the 'cull' was achieved. This stay was achieved because the Tribunal was not fully convinced by the information brought before it by the ACT Government and Defence. They wanted to see more evidence and at the same time not disadvantage both parties in granting the stay. So, this is why a three week stay period was imposed. Defence could still resume the cull within the stipulated period (before end July), and no more animals would be killed while the case is being determined. If all the animals were killed then the whole purpose of having a second full bench hearing would be irrelevant. We now wait for the outcome from the second Tribunal Hearing from last week. Whatever the outcome we have had some significant victories over Defence bureacrats and the ACT Government.
Australian Capital Territory Civil and Administrative Tribunal Animal Liberation and Conservator of Flora and Fauna and Department of Defence (Joined Party) Case No. AT 09/47 Coram: General President Crebbin Counsel Applicant: Dr Malcolm Caulfield Respondent: Dr Douglas Jarvis Joined Party: Mr Matthew Roser
The Department of Defence obtained a licence to kill 7,000 kangaroos at its Majura training area. The killing commenced on Tuesday 5 May 2009. By Friday 8 May 2009 over 2,000 kangaroos had been killed. Animal Liberation made an application, received by the Tribunal on 11 May 2009, for a review of the decision to grant the licence and an interim order stopping the killing until the final hearing of the application. The Tribunal granted an expedited hearing of the application for the interim order, which commenced on Tuesday 12 May 2009. Animal Liberation's standing to make the application was opposed. Having heard argument from counsel, the Tribunal granted Animal Liberation standing to proceed. The Tribunal gave its decision in favour of Animal Liberation, staying the killing until further order, on Thursday 14 May 2009.
Decision and reasons for decision given 14 May 2009 The power to grant interlocutory injunctive relief is a very significant power and it must be exercised cautiously. I am very conscious of Dr Jarvis' suggestion it would be inappropriate for this Tribunal to be tempted into using this first occasion of looking at how the Tribunal should exercise that power as one in which some guiding principles should be sought and I agree with you that we are way too young a body to do that. In retrospect it is perhaps surprising that section 53 of the ACAT Act that provides the Tribunal with such a powerful tool to using proceedings is somewhat different on the face of it at least from similar powers in other bodies and used previously and that we're faced with a position where we are searching for what we need to do in relation to it. However, there are a couple of basic comments that I want to make first about it. Although section 53 is headed to indicate it is a power to grant interim orders, it isn't really. It is obviously a power to grant interlocutory injunctive relief and it is determinative of the Tribunal's power in relation to such applications. It could be tempting for some to look at section 56 of the Act and the powers that it contains to enable the very broad powers that it contains to allow the Tribunal to what looks like make whatever order it wishes that is appropriate or convenient in any particular case and to assume the very breadth of that power should be able to be able to be used in a case such as this instead of section 53. I say this for the purposes of recording that section 53 is the section that the Tribunal needs to look at for this purpose and that perhaps I will encourage the legislature to consider renaming that section and making it clear that it is prescriptive of the Tribunal's powers in relation to such orders. I also want to make a comment about the general approach the Tribunal should take in applying section 53 in an individual case. I adopt Dr Jarvis' position in relation to that. I don't know that the position of either Mr Roser or Dr Caulfield is any different to that of Dr Jarvis' position. That is that the Tribunal's task is to first consider whether the applicant for the order is disadvantaged or harmed and if so satisfied to consider whether an order should be made, taking into account a range of factors and although it is not necessary for me to decide this in a prescriptive way in this case and I don't, it would seem to me that the common law jurisprudence is appropriate to draw on; it is after all the framework within which decision makers have acted on for a long time. That being the case, the Tribunal should consider, in making a decision about what order is appropriate to make, if it is first satisfied that the requirements of section 53(1)(b) are met, at least include the prospects of success of the applicant, the balance of convenience to the parties and the damage or harm that might be caused to any other party if the relief sought is granted. That one might reformulate that last paragraph by referring to the harm or damage that might be caused to any party if the relief is granted or refused. But obviously in relation to the applicant section 53(1)(b) picks up that component in relation to the factors the Tribunal needs to consider. One final point in relation to the question of the burden of proof to be adopted in considering section 53 is clearly the civil burden. The Tribunal must be satisfied on the balance of probabilities of the matters surrounding section 53(1)(b). But it is my view that, given the very significant impact of interlocutory injunctive relief, what I might call the Briginshaw standard is the approach the Tribunal should take to these matters. I guess it's best described as you really really need to be satisfied on the balance of probabilities that it is appropriate, so that the burden of proof sits somewhere between the usual civil standard and the more onerous criminal standard of beyond reasonable doubt. I recognise that none of the parties have addressed me on that particular issue. Looking at the question of whether the applicant can be said to have suffered harm or disadvantage in this case I have to say I found the exercise a very very difficult one. I accept Dr Jarvis' approach and that of Mr Roser's that the concept of harm really requires some direct and real injury, damage or loss of some form to be able to be demonstrated by the applicant and in this case I don't believe the applicant can demonstrate that. Disadvantage, however, is another thing altogether. There does not seem to be much in the way of judicial consideration or jurisprudence in relation to the use of that word disadvantaged. In the authorities relating to interlocutory injunctive relief generally there are words that are commonly used to describe what it is that the decision maker is required to look at. Disadvantage does not appear amongst those words commonly used. And Dr Jarvis' helpful reference to the definition in the Oxford Concise dictionary is where we have to look in the absence of any clear authority anywhere else. The first definition is lack of advantage, unfavourable position or circumstance, loss or injury; it follows as the second if one says that disadvantage is restricted to loss or injury it is difficult to see what would be added to that section when the word harm is used beside it. It is clear that disadvantage must mean something apart from harm and I'm inclined to think that rather than loss or injury the disadvantage focused on here can be described as a lack of advantage or unfavourable position or circumstance. I move from section 53 for the moment to think about the purpose of what one counsel and I can't remember who referred to as the deeming provision in section 22Q(2) of the Act. It's clear and I don't think that anyone had a different view in relation to that, but 22Q(2) is a provision now commonly found in legislation that is intended to broaden the type of bodies or people that would have standing to bring a matter before a decision maker. And it seems to me that if one accepts that, then one would also quite readily accept that evinces an intention by the legislature to accord to those bodies the identical status that an individual or some other commercial operation might have in respect of whom there would be no question as to standing. If you accept then that all parties coming before a Tribunal or a decision maker should be able to have access to the full range of powers available under the statute that empowers the Tribunal to do things then one would be careful of not interpreting the provisions of section 52(1)(b) in a way which almost inevitably will exclude a body whose standing is only provided because of that deeming provision from the operation of a particular section of the legislation that empowered the Tribunal to do something. And I think that if one takes a too rigorous approach to the interpretation of disadvantage it will almost always inevitably be the case that a body whose objects and purposes relate to a matter the subject of the decision or to a matter perceived generally sufficient to give it standing will struggle to show any harm or will struggle to show a disadvantage unless recognition is given to the importance of ensuring that the subject matter of the application, the thing that is coming to the Tribunal is somehow preserved in such a way that there is able to be a process that could, if the applicant met all the other requirements of the Act, meet the aim it is set out to achieve. I am satisfied that the applicant will suffer disadvantage if this stay is not granted. The disadvantage relates to the effectiveness of the application that is brought. Dr Jarvis very strongly put that in fact the application would still be effective if it proceeded because the applicant's aim is to ensure rigorous and appropriate decision making conducted on a proper basis by the Respondent.
And indeed, Dr Caulfield in his closing submissions emphasised that same issue by drawing attention to the objects in section 6 of the ACAT Act. But I think the inevitable consequence of following Dr Jarvis' line is to put bodies in the position of this applicant which had standing only because of that deeming provision almost inevitably in this untenable position of getting an application on foot and then finding there is something that is occurring that will need their ultimate aim be defeated. In essence I am saying that a body in the position of this applicant would be left in the untenable position of having its ability to make an application rendered ineffective or nugatory in almost every case. That might be putting that too broadly but certainly in many cases when we think of the types of matters in which a body that could be described as a public advocacy body or public interest body is likely to want to become involved. So I am satisfied that this applicant will suffer disadvantage if an order is not made in these particular circumstances. That takes me to consider what order is appropriate in the circumstances under section 53(2) of the Act. I am unable in this case to really form any view as to the prospects of success of the application. That's a very complex question and it would take a lot more than the time we have available to get to a point to where I could even form a prima facie view of the prospects of success. Dr Caulfield did in his case point to some inconsistencies in some of the documentation which has been used apparently by the Conservator to support his decision. But we simply don't know enough about how that decision was reached and what was taken into consideration to really look at the issue of prospects in any sense of the word.
The issue of balance of convenience is in some respects difficult to divorce from the issue of what others might suffer. The Respondent I don't believe pointed to any damage it might suffer if the stay was granted. It is the licensing body in relation to land that it does not occupy in this case. Dr Jarvis drew the Tribunal's attention to potential damage to threatened species if the stay was granted, but I don't know that there was sufficient evidence for me to be satisfied that there would be damage to threatened species if there was a delay in the Department of Defence's programme of operation of the licence for a short period of time. In relation to the joined party, the Department of Defence, we had uncontested evidence, and appropriately uncontested, from Major-General Cosson that the Department would suffer. I think her evidence demonstrated that the Department of Defence's overall training programme in relation to its personnel could be damaged if there was delay that caused things not to be able to run according to the programme that is currently in place.
I am very conscious of the significance and the importance of considering financial loss to a party. I could not clearly be satisfied I think that the loss was going to be a loss that was an additional cost caused by this stay, but rather I took the Major-General's evidence to be that there are certain costs that are currently being incurred and they will continue to be incurred whether or not the cull is continued. And so the Defence Department will be paying for things to be done that aren't being done rather than unable to be done because of the licence. And there might then if there was a need to have a further licence next year although she didn't say this I assumed from that she could say there could be some costs incurred in the following year because the objects required for this year could not be achieved under this licence. At the end I'm not satisfied that is sufficient concern for me to find that the stay should not be granted. And although I think it is a very fine balance I am satisfied that the balance of convenience comes down on the side of the applicant. The order of the Tribunal is to grant the application.(of a Stay of the kill)
The Tribunal Reasons, released 22/6/09.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ANIMAL LIBERATION v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2009] ACAT 17 AT 47 of 2009
Catchwords: ADMINISTRATIVE REVIEW – Decision to grant licence – reviewable decision – licence to cull kangaroos on Commonwealth land – decision allegedly made based on inaccurate data –alleged failure to take into account relevant considerations–alleged taking into account irrelevant considerations ANIMALS – Protection of flora and fauna – threatened, endangered and vulnerable species, and endangered ecological communities – kangaroo population statistics PROCEDURE – Application for Commonwealth party to withdraw from proceedings but remain as amicus curiae – s44 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) – continued presence of Commonwealth would equate to Tribunal exercising Federal jurisdiction – situation constituted an extraordinary circumstance within the meaning of s56 of the ACAT Act Australian Constitution, s75(iii) Judiciary Act 1903 (Cth), s39 ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 10. 44, 56, 57 Legislation Act 2001 (ACT), 180 Nature Conservation Act 1980 (ACT), s106 Determination of Licensing Criteria (Disallowable Instrument DI2001–47) ACT Nature Conservation Strategy (Disallowable Instrument DI1997–263) Nature Conservation (Special Protection Status) Declaration 2005 (No 1)(Disallowable Instrument DI2005–64) Nature Conservation (Species and Ecological Communities) Declaration 2008 (No 2)(Disallowable Instrument DI2008–53) Nature Conservation (Threatened Ecological Communities and Species) Action Plan 2004 (No 1) (Disallowable Instrument DI2004–52) Nature Conservation (Threatened Ecological Communities and Species) Action Plan 2005 (No 1) (Disallowable Instrument DI200–84) ACT Kangaroo Management Plan: Public Consultation Draft (March 2009)
Commonwealth v Anti-Discrimination Tribunal (Tasmania) and Anor 248 ALR 494 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Ex parte Eastman; Re Governor, Goulburn Correctional Centre (1999) 200 CLR 322 R v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13 TXU Electricity Ltd v The Office of the Regulator –General and Others (2001) 3 VR 93 Fagan v Crimes Compensation Tribunal (1982) 152 CLR 666 Territories and Commonwealth Places: The Constitutional Position, Hopper, Alvin, vol 73 ALJ 181 Code of Practice for the Humane Destruction of Kangaroos in the ACT Cooper, M, Report on ACT Lowland Native Grassland Investigation (12 March 2009) ACT Commissioner for Sustainability and the Environment Ramp and Rodger (2008) ‘Frequency of animal-vehicle collisions in New South Wales’, in Lunney, Munn & Meikle (eds) Too Close for Comfort (2008) Royal Zoological Society of New South Wales, Sydney
Tribunal: Mr Bill Stefaniak Appeal President Ms Louise Donohoe Senior Member Mr John Ashe Senior Member
Date of Decision: 22 June 2009 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) NO: AT 47 of 2009 RE: ANIMAL LIBERATION Applicant AND: CONSERVATOR OF FLORA AND FAUNA Respondent ORDERS Tribunal: Mr Bill Stefaniak Appeal President Ms Louise Donohoe Senior Member Mr John Ashe Senior Member Date: 19 June 2009 Order: The decision of the Conservator is varied in the following manner: 1. The Applicant/Licensee (the “Licensee”) for Licence Number LK2009145 (the “Licence”) is permitted to continue to take and kill the balance of the 7,000 kangaroos not previously taken and killed in accordance with the Licence only upon the land owned and occupied by the Licensee within the Australian Capital Territory with the following conditions: a) The Licensee must notify the Australian Federal Police in advance of each culling operation; b) Cull operations will only be conducted during the period specified on the licence, namely, until 31 July 2009; c) Kangaroos are to be treated in accordance with the Code of Practice for the Humane Destruction of Kangaroos in the ACT available at www.legislation.act.gov.au; d) Only the Licensee may be in possession of any part of animal taken under the terms of this Licence; e) The Licensee must ensure that a numbered tag issued with this Licence is firmly attached to each carcass or – if the skin is removed for any purpose - the tag must be attached to the skin; f) Meat and skins are not to be sold; and g) Only those shooters nominated on the Licence are permitted to discharge a firearm on the property within the Australian Capital Territory named for the cull in accordance with s.81 (1)(a)(i) of the Firearms 1996 Act.
………………………. …………………………. …………………………… Appeal President Senior Member Senior Member AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) NO: AT 47 of 2009
RE: ANIMAL LIBERATION Applicant AND: CONSERVATOR OF FLORA AND FAUNA Respondent
REASONS FOR DECISION 1. This Application is an application for a hearing de novo by the Tribunal of a decision of the ACT Conservator of Flora and Fauna (the “Conservator”) on 9 April 2009 to grant a licence, number LK2009145, to the Department of Defence to kill 7,000 Eastern Grey Kangaroos (the “Decision to grant the Licence”). The licence enables the Department of Defence to cull the kangaroos on land owned by the Commonwealth which is occupied and used by the Department of Defence as a training facility, known as the Majura Training Area (the “MTA” or the “Land”). The culling was to be carried out between 6 April 2009 and 31 July 2009 in accordance with the Code of Practice for the Humane Destruction of Kangaroos in the ACT. 2. On 9 May 2009, the Applicant, Animal Liberation, a public company limited by guarantee which, in its covering letter, described its objects as including the protection of indigenous wildlife, made an application to the ACT Civil and Administrative Tribunal (“ACAT”) pursuant to s.10 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) for a review of the Conservator’s Decision to grant the Licence. Presumably, notification by the Conservator to the Department of Defence was communicated prior to 9 May 2009. The Conservator’s Decision to grant the Licence is a reviewable decision by the ACAT. 3. On or about 9 May 2009, the media reported a news statement issuing from the Department of Defence that the cull had commenced in accordance with the Licence granted by the Conservator. The Applicant sought an urgent injunction to stay the operation of the Licence. 4. That application was heard by ACAT General President, Ms Crebbin, on 12-14 May 2009. The General President also heard an application made by the Department of Defence at that time, for it to be joined as a Respondent party to the Application. 5. After considering affidavit and oral evidence the General President made orders joining the Department of Defence as a Respondent and suspending the operation of the Licence. In addition the General President made an order expediting the hearing of this Application. At the time the injunction was granted 3838 kangaroos had been shot. 6. To facilitate the expedited hearing of this Application, the General President made various directions in relation to the filing and exchanging of statements of facts and contentions, witness statements and other evidence to be relied upon by the parties at the hearing. On 25 May 2009, those directions were varied due to the difficulty experienced, no doubt by all parties, of having to garner what transpired to be voluminous and complex scientific, statistical and ecological evidence in a very short time. The Tribunal is grateful for and has been greatly assisted by the efforts in this regard made by all the parties. 7. The great haste in which all of this material was prepared may have led to some of the material containing errors. However, the Tribunal does not regard those errors as significant, particularly having regard to the collaboration of two experts hitherto on opposing sides of the argument whose evidence the Tribunal found ultimately very helpful. The expert evidence led by all parties will be addressed in due course. 8. On 1 June 2009, the Tribunal received written correspondence addressed to the Registrar from the solicitor for the Applicant which raised an issue in relation to the past service of the Appeal President, Mr Bill Stefaniak, as a Major serving in the Royal Australian Army Reserve. It was therein alleged that, as a consequence of the Appeal President’s past military service, a reasonable apprehension of bias might be created by him if he continued to preside at the hearing of this matter. 9. When the hearing of this matter commenced on 2 June 2009, this issue was immediately and quite properly raised by Mr Bennett of counsel who appeared for the Applicant. The issue was dealt with by the Appeal President. He informed the parties appearing of the nature of his service and the fact that it had ceased some years ago. Moreover, the Appeal President informed the parties that, in addition to his military service, he had, over the years, been an enthusiastic supporter of the organisations concerned with the prevention of cruelty to animals and that he had initiated various relevant legislative measures. He also informed the parties that, over the years, he had also had contact with the Territory Animal Welfare League. 10. In light of the Appeal President’s disclosures, Mr Bennett, on behalf of the Applicant, informed the Tribunal that, so far as his client was concerned, the Appeal President had fully addressed its concerns in this regard and that the concern expressed in the correspondence was no longer an issue. There was no comment from any of the other parties in relation to the disclosures made by the Appeal President. 11. The next matter to be raised was an application made by Mr Berger, counsel appearing for the Department of Defence. Mr Berger’s application was that his client be permitted to withdraw from further participation in the proceedings as a party, but be permitted to remain in the capacity of amicus curiae to assist the Tribunal, by tendering expert material already prepared and filed by it, to assist as required by the Tribunal and to make submissions. 12. This application was supported by Dr Jarvis of counsel who appeared on behalf of the Conservator and opposed by Mr Bennett. The basis of the application, Mr Berger submitted, was a constitutional issue which, if his position was correct, might have the potential effect of invalidating the present proceedings in respect of this Application. 13. In support of his position, Mr Berger made lengthy submissions citing Commonwealth v Anti-Discrimination Tribunal (Tasmania) and Anor 248 ALR 494 at 538 to 554. Dr Jarvis submitted that, whilst not opposing the Application, he did not agree with Mr Berger’s view of the potential constitutional issue which was, in short, that the continued presence of the Commonwealth as a party might invalidate these proceeding before the Tribunal because, if the Tribunal were exercising judicial power in determining the Applicant’s application in respect of the Licence to cull granted by the Conservator, it would be exercising the judicial power of the Commonwealth because this matter would fall within s. 75 (iii) of the Australian Constitution which is only exercisable by a court of the state pursuant to s. 39 of the Judiciary Act 1903 (Cth). 14. Mr Bennett disagreed with the principles in Commonwealth v Anti-Discrimination Tribunal and, in support of his position, relied upon two High Court authorities, the principles of which he did not develop substantially in oral submissions: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 and Ex parte Eastman; Re Governor, Goulburn Correctional Centre (1999) 200 CLR 322. Mr Bennett also referred the Tribunal to Territories and Commonwealth Places: The Constitutional Position, Hopper, Alvin, vol 73 ALJ 181. For the reasons to which the Tribunal will turn shortly, it did not consider that it was necessary to deal with the argued potential constitutional issue, because it could decide the Defence Department’s application without having to consider that point. 15. In addition, Mr Bennett submitted that the Department of Defence which had sought to be joined could not now seek to withdraw and, if it could withdraw, it could not remain in the proceedings in the capacity it suggested. If the Department of Defence were no longer a party to the proceedings, he submitted, then the principle in R v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13 as followed and explained in TXU Electricity Ltd v The Office of the Regulator – General and Others (2001) 3 VR 93 was applicable to these proceeding and the role of the Conservator in these proceedings was not that of contradictor, but was restricted and confined to assisting the Tribunal by identifying documents before the Conservator at the time the original decision was made. Practically, this would have had the consequence that the expert evidence relied upon by Dr Jarvis could not be admitted into evidence. 16. While Dr Jarvis agreed that his role was essentially that of assisting the Tribunal and was not a partisan role, it was his submission that his role should not be restricted and confined in the manner suggested by Mr Bennett. 17. Dealing first with the arguable constitutional issue which, if raised, might have the potential to invalidate theses proceedings, the Tribunal invited submissions from the parties as to, on the one hand, the power of the Tribunal to order that the Department be permitted to withdraw and remain in the capacity of amicus curiae and, on the other hand, order that it be compelled to remain as a party to the proceedings. 18. Dealing with the last matter first, Mr Bennett, amongst other submissions, directed the Tribunal to s.44 of the ACT Civil and Administrative Tribunal Act 2008 (the “Act”) and directive 57 of the Act. The Tribunal was not persuaded by that submission. Mr Berger also referred the Tribunal to ss.6 and 44 of the Act, together with s.180 of the Legislation Act 2001 (ACT). Dr Jarvis also referred the Tribunal to s.44 (2) of the Act. 19. After consideration of the submissions made, the Tribunal came to the view that, having regard to the broad objects of the Act as prescribed in s. 6 and the very broad discretion and power conferred upon the Tribunal by virtue of s. 56 of the Act, the Tribunal had the power to amend the Tribunal’s earlier order joining the Department of Defence to these proceedings. Section 56 of the Act relevantly provides as follows; The tribunal may, by order— (a) hear an application jointly with another application that arises from the same or similar facts; or (b) make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or (c) amend or set aside a tribunal order if— (i) the order was made after hearing an application in the absence of a party; or (ii) the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or (iii) extraordinary circumstances make it appropriate to amend or set aside the order; or (d) take any other action in relation to an application— (i) that the tribunal considers appropriate; and (ii) that is consistent with this Act or an authorising law. (emphasis added) 20. The Tribunal took the view that the arguable potential to invalidate its own proceedings by compelling the Department of Defence to remain as a party to the proceedings, rather than as amicus curiae, constituted an extraordinary circumstance within the meaning of s.56 of the Act and, as such, it was empowered to order necessary amendments to an earlier order of the Tribunal to avoid this potential consequence. 21. The Tribunal ordered that the General President’s order of 15 May 2009 be amended so as to permit the Department of Defence to formally withdraw as a party to the proceedings, but be permitted to remain as amicus curiae to assist the Tribunal by being allowed to tender its expert evidence and make submissions. 22. Dealing with the Hardiman point raised by Mr Bennett on behalf of the Applicant, the Tribunal took the view that, as the Conservator’s Decision to grant the Licence was not a decision made inter partes and nor, when making it, was the Conservator obliged to observe any principles of procedural fairness, the Hardiman principle was distinguishable and the appropriate approach to this issue was the approach taken by Brennan J (as he then was) in Fagan v Crimes Compensation Tribunal (1982) 152 CLR 666 at 681 to 682. 23. Applying His Honour’s reasoning in Fagan’s case to this Application, the Tribunal came to the view that it was desirable that the Conservator should appear by counsel, be permitted to cross-examine, make such submissions as he thought fit to assist the Tribunal, and if appropriate to argue against the Applicant’s case. The Tribunal so ordered. The Land, the Subject of the Licence (MTA) 24. The present total area of the MTA is 4481.8 hectares. The area of the Land increased respectively in 2007 and 2008 by the acquisition of “Malcolmvale” (“old area H”) and “Dundee” (“new area H”). 25. The Land is composed of grassland (983.8 ha; 22%), grassy woodland (2378.4 ha; 53%) and forest (1119.6 ha; 25%). The MTA is almost wholly contained within the borders of the Australian Capital Territory. We say “almost wholly” because there was some suggestion during the course of the hearing that a very small portion of the MTA may be outside the Australian Capital Territory/New South Wales border and contained in New South Wales. In the event that the Tribunal was to order that the activity of the Licence was to continue then this Tribunal does not have jurisdiction in respect of any activity to be carried out on the Land outside the borders of the Australian Capital Territory. 26. The Department of Defence carries on military training activities on the MTA. It was suggested on several occasions in cross-examination and submission generally by Mr Bennett that the military activity was heavy, and implicit in those questions and those comments by him was that the state of the Land was due in some significant measure to the military activities carried on at the MTA, rather than overgrazing by kangaroos. 27. Mr Berger, in his role as amicus assisting the Tribunal was asked on several occasions to take instructions from the Defence Department in relation to the nature and extent of those military training activities. He did so, informing the Tribunal that light infantry exercises took place, in addition to shooting on a designated rifle range and grenade exercises on a designated concrete 30 metre by 30 metre range. 28. The rifle range was bordered by an embankment which served to confine the activity and prevent damage to surrounding areas. As to vehicle type, access and activity to and on the Land, the Tribunal was informed that it was restricted to four-wheel drive vehicles which were restricted to designated roads. In other words, there was no-off road vehicular activity. The Tribunal does not accept the suggestion that the military training exercises carried out by the Department of Defence on the MTA has had any significant detrimental environmental impact on the Land. 29. The Tribunal was also informed by Mr Berger that, at the time the counts of the kangaroos were conducted in 2007, 2008 and 2009, no military training activities were conducted. They were, the Tribunal was informed, suspended for the purpose of not interfering with the counts. It was the counts conducted at those times, which were the subject of the collaborative exercise undertaken by Dr Drummond and Dr Fletcher which the Tribunal requested and which assisted the Tribunal greatly. (See further below.) 30. In or about 2008 an area of the MTA, said to be 126.6 hectares in size, was fenced. The fenced area can be seen on Exhibit C. It is situated in the area of the MTA known as MA01. MA01 comprises natural temperate grasslands (NTG) where there exists an endangered ecological community - the Grassland Earless Dragon (GED). That was the reason for the fencing off of this small area. The fencing notwithstanding, the fenced area is not completely kangaroo proof and evidence was provided that kangaroos had to be occasionally herded out of the fenced area. A General Overview of the Population Numbers of Eastern Grey Kangaroos (“EGKs”) in Australia and in and around the ACT. 31. European settlement has resulted in the decline in numbers and distribution of a number of Australian macropod species. However, this has not been the case with larger macropods of which the EGKs is a significant member. EGKs are prolific across Eastern Australia. Densities may however differ, for example in more arid areas where water is scarce and in intensively developed agricultural and pastoral areas, densities may be low. However, clearing and consequential pastoral development with reliable water resources has extended the habitat of the EGKs and caused their numbers to increase. Other factors which have caused the population of EGKs to increase are the loss of predators and the dedication of lands as protected or national parks. 32. Commercial harvesting of EGKs has been well established in Eastern Australia for many years. So too has the practice of reduction culling as an integral part of land management in relevant areas. The scientific data relating to the numbers of EGKs is well established and for the most part largely uncontroversial. This scientific data suggests that there are approximately 13 million EGKs ranging across their habitat. The Tribunal heard evidence to this effect and accepts the general proposition that the scientific data is not illustrative of a species being pushed to extinction either by commercial harvesting or reduction/land management culling. 33. The population of EGKs in the Australian Capital Territory is as relatively high or much higher than other populations to be found in the temperate parts of Australia. Indeed, the evidence suggests that the Australian Capital Territory has a high and increasing EGK population and some of the highest kangaroo densities ever measured (see Ramp and Rodger (2008) ‘Frequency of animal-vehicle collisions in New South Wales’, in Lunney, Munn & Meikle (eds) Too Close for Comfort (2008) Royal Zoological Society of New South Wales, Sydney, referred to at p16 of Annexure B of the Witness Statement of Dr Donald Fletcher (Ex B). 34. In the ACT Commissioner for Sustainability and the Environment’s Report on ACT Lowland Native Grassland Investigation (12 March 2009) which was released on 19 March 2009 (the “Cooper Report”), the author identified (at p vi) the over abundance of kangaroos as being a recent and highly significant threat which has altered the condition of many of the lowland native grassland sites and likely to adversely affect other sites in the future. 35. At page iv, the Cooper Report identified lowland native grassland which comprises several types of grassland communities, the most important of which was natural temperate grassland, as being the most threatened ecosystems in the Australian Capital Territory. The report identified an urgent need for land management to protect these threatened ecosystems and recommended an immediate reduction in the numbers of EGKs. 36. In relation to the MTA, the Cooper Report, recommenced that grazing pressures should be reduced on “Malcolmvale” and that there needed to be continued management (culling) of kangaroos on the MTA (therein referred to as MA01). 37. All culling of kangaroos in the Australian Capital Territory is the subject of applications for and the granting of licences by the Conservator. Licences are routinely granted to graziers in the Australian Capital Territory as a matter of responsible land management. 38. Culling of kangaroos in the Australian Capital Territory and adjoining areas in New South Wales has been undertaken for many years. Regular culling in accordance with a licence was carried out on “Malcolmvale” and “Dundee” prior to their incorporation to the MTA. Additionally, culling on properties adjacent to the MTA has also been regularly carried out. 39. There was no evidence before the Tribunal that the regular culls of this nature pursuant to the relevant licence have impacted detrimentally on the population of EGKs in these areas. There was no evidence before the Tribunal of any pattern of EGKs being pushed to extinction. Indeed the preponderance of evidence was to the contrary as evidenced by the Cooper Report. Relevant Statutory, Regulatory and Policy Considerations 40. The primary and relevant piece of legislation or the starting point in the Tribunal’s considerations is the Nature Conservation Act 1980 (ACT) and its subordinate instruments. The Act provides for the protection and conservation of native animals and plants. As a native animal, the EGK is protected pursuant to the provisions of the Act. 41. Section 7 of the Act appoints a Conservator of Flora and Fauna and invests the Conservator or his or her delegate with certain powers, one of which is to draft and give notice of and consult in relation to conservation strategies. At the end of the consultation period, the Conservator may do a number of things, one of which is to confirm a draft conservation strategy, which may be submitted to the Minister for approval. The Minister may then do a number of things in relation to the draft conservation strategy, one of which is to approve it (see ss.26 to 32). 42. Sections 33 to 39 empower the Conservator to make declarations relating to special protection and exempt status to be afforded to flora and fauna, while ss.40 to 42 provide the Conservator with the power to prepare action plans in relation to each species, ecological community or process the subject of a s.38 declaration. 43. Sections 103 to 113 of the Act deals with the Conservator’s power to grant licences. Section 106(3) of the Act provides that, for the purposes of the Conservator‘s power to grant licences, the Minister may determine different criteria in relation to, inter alia, protected native animals. Pursuant to Instrument No 47 of 2001, the Minister determined the licensing criteria. That instrument, inter alia, provides as follows: GRANT OR REFUSAL OF A LICENCE Application for a licence 1.(1) An application for the grant of a licence: a) shall be in writing and signed by the applicant; b) shall state the full name and address of the applicant; c) shall clearly indicate the nature of the activity in respect of which the licence is sought and its purpose; and d) shall specify as relevant, the number and species of animals, fish or plants in respect of which the licence is sought. 1.(2) In order to assist determination of an application, the Conservator may request any other relevant information or documentation about the application or its purpose in relation to, for example: a) the training, experience and qualifications of the applicant; b) the place at which the activity is proposed, including relevant facilities and conditions; c) handling, care and disposal of any animals, fish, plants, their progeny or products; or d) commercial interests in the proposed activity. LICENSING CONSTRAINTS Activity to be lawful 2. The Conservator shall not grant a licence unless satisfied, based on reasonable grounds, that: a) the activity for which a licence is sought is not prohibited by a law in respect of each place specified in the application; and b) the activity does not involve a breach of State, Territory or Commonwealth legislation. … CONDITIONS OF A LICENCE 5.(1) A licence may specify conditions subject to which the licence is granted in relation to the activity and how it is to be carried on, for example: a) the manner in which the activity is to be or not to be conducted; b) the manner in which any damage caused by the activity is to be rectified; c) handling and care requirements for an animal or plant; d) the type of activity and its purpose; e) the person(s) who may participate in the activity, their qualifications and experience; f) the time and place for an activity or the meeting of a specified condition; g) the number of animals, plants or fish involved; … l) environmental monitoring requirements … GENERAL CONSIDERATIONS 7.(1) For the purpose of determining an application for a licence, the Conservator shall have regard to a) the objectives set out in the Nature Conservation Strategy made under Part 2 of the Nature Conservation Act 1980; and b) the effect the activity will have on: i. a species of native animal or native plant already found in the Territory; ii. the significant ecosystems of the Territory; and iii. if the activity is proposed to be undertaken on public land, the effect of the activity on that land. 7.(2) For the purposes of determining an application for a licence, the Conservator may make a distinction between the different kinds of plants or animals or fish in relation to, for example: … k) whether the plant or animal or fish is declared as a protected native animal or native plant, a species with special protection status, or a prohibited or controlled organism; l) whether the plant or animal or fish has been recommended for declaration as vulnerable or endangered. … Animals and live fish 10. When determining an application for a licence relating to animals or live fish, the Conservator shall have regard to: … h) in the case of an application for a licence to take a native animal or kill a native animal – i. the purpose of the activity; ii. the method by which the animal will be taken or killed; iii. the method of disposal of any carcase, remains or product; iv. the qualifications and experience possessed by the applicant relating to the science of zoology or animal husbandry. Nature Conservation Strategy 44. By Instrument No 263 of 1997, the Minister approved the Nature Conservation Strategy (NCS) for the Australian Capital Territory. As noted above, the licensing criteria require the Tribunal to have regard among other things to the objectives in the NCS. For the purposes of this case the most relevant objectives set down in the NCS are as follows: (a) To protect and augment off-reserve and urban nature conservation assets with special consideration being given to those remaining elements of the natural landscape that are poorly conserved or have special habitat values (section 2.3); (b) To manage the Eastern Grey Kangaroo population so that conservation requirements are satisfactorily integrated with other management issues (section 2.3); (c) To enable species and communities that are threatened with extinction to survive and thrive in their native habitats (section 2.4); (d) To prevent additional species and ecological communities from becoming threatened (section 2.4); and (e) To conserve native vegetation remnants (section 3.5). Effect on Native Species and Significant Ecosystems 45. Criterion 7(1)(b) of the licensing criteria requires the Tribunal to consider the effects of the proposed kangaroo cull on (i) a species of native animal or plant already found in the Territory; and (ii) the significant ecosystems of the Territory. For the purposes of this case the relevant plants and species are the Eastern Grey Kangaroo, especially those at the MTA, and those animal and plant species and ecological communities declared as having special protection status in Nature Conservation (Special Protection Status) Declaration 2005 (No 1) (“Declaration No 1”) and/or declared as threatened (vulnerable or endangered) in Native Conservation (Species and Ecological Communities) Declaration 2008 (No 2) (“Declaration No 2”). Endangered Ecological Communities 46. Declaration No 2 lists two endangered ecological communities: (a) Natural Temperate Grassland, described as A naturally occurring grassland of the temperate zone, dominated by native perennial tussock grasses, with associated native herbs and native fauna; and (b) Yellow Box/Red Gum Grassy Woodland, described as A naturally occurring woodland of the temperate zone, in which Yellow Box co-occurs with Blakely’s Red Gum. It includes the species rich understorey of native tussock grasses, herbs and scattered shrubs, together with a large number of native animal species. 47. Declarations once made in relation to declared communities or species have legislative effect and their status as declared species is not open to review by the Tribunal. It is, however, within the power of the Tribunal to consider whether declared communities or species are present at the MTA and, if so, whether they are at risk from kangaroos. (See further below.) The Animal Welfare Act 48. This Act governs acts of cruelty to animals, scientific research and gazetted codes of practice for management and control of animals. It is relevant legislation to consider when making decisions in relation to the management of kangaroo populations. Draft Kangaroo Management Plan 49. The ACT Kangaroo Management Plan March 2009: Public Consultation Draft (the “Draft Plan”) outlines the proposed legislative and policy framework for kangaroo management in the ACT. It includes policies for managing the environmental impacts of kangaroos in grassy ecosystems. The Draft Plan states that animal welfare is given a high priority in kangaroo management in the ACT and that this is reflected in policies in the plan covering codes of practice (e.g. the Code of Practice for the Humane Destruction of Kangaroos in the ACT). It further states that the ACT has the strictest requirements for licensing of non commercial kangaroo shooting in Australia. Shooting is identified as the preferred technique for the reduction of kangaroo population densities, being seen as the most humane and target specific technique available. The Draft Plan comments that recent ACT research found that a significant increase in herbage mass was associated with kangaroo densities that are in the range of approximately 0.6 to 1.5 kangaroos per hectare in grassland areas. Code of Practice for the Humane Destruction of Kangaroos 50. In November 2008, the Natural Resource Management Ministerial Council endorsed for release two new codes of practice that replaced the 1985 code. These codes distinguish between commercial and non-commercial shooting. Reference was made to the Code in the Draft Plan. In the Draft Plan, which is also a relevant consideration, under the heading General Principles and Policies (on p vii), the author stated that the following principles formed the foundation of the Plan. They were, inter alia: Environment (a) Kangaroo management is based upon the best available scientific knowledge of kangaroo biology, ecology and population dynamics. (b) The conservation of native grassy ecosystems and their constituent flora and fauna species is a legislative requirement and a high priority for the government. 51. Finally, the Cooper Report, to which mention has been made above, is an important work for consideration. Amongst other things it states as follows (at pp vi-vii): There is an urgent need for land management actions to be undertaken to protect the 60% of the Territory’s lowland native grassland sites that are currently in a critical condition or approaching this state. The threatening processes that have caused the demise of the grassland sites including weeds, inappropriate fire regimes, overgrazing by stock, Eastern Gray Kangaroos and rabbits. The prolonged drought has exacerbated the effect of these processes. It is estimated that a sustainable kangaroo density is approximately one kangaroo per hectare. The most humane methods should be used to reduce kangaroo numbers to achieve this density. A Kangaroo Management Plan for the ACT is currently in preparation and will be the subject of consultation. While this is the case, removal of kangaroos should not be delayed, pending adoption of this plan. Existing policies and procedures should be used to guide the field actions. The Evidence 52. Mr Bennett called three witnesses to give evidence on behalf of the Applicant. Dr Mark Lea Drummond is a teacher of Mathematics and Statistics at the Canberra Institute of Technology. He has First Class Honours Degrees and University Medals in Mathematics and Mechanical Engineering from the University of New South Wales and a PhD from the University of Canberra. 53. Dr Daniel Ramp is a Research Fellow at the University of New South Wales and has a PhD in Botany and Zoology from the University of Melbourne. His PhD was on the impact of grazing by Eastern Grey Kangaroos on temperate woodlands in Victoria. 54. Dr Dror Ben-Ami is an ecological consultant and has a PhD in Zoology. His Honours Year research project was on a topic relating to the Eastern Grey Kangaroo in semi-arid north-western NSW. His PhD was on a topic relating to the behavioural ecology of the Swamp Wallaby. The Tribunal expressed some concern in relation to Dr Ben-Ami’s qualifications to assist the Tribunal as those qualifications appeared on his curriculum vitae. In addition, the Tribunal was concerned about Dr Ben-Ami’s partiality, bearing in mind a consultancy he had undertaken in the past on behalf of the Applicant in relation to the commercial harvesting of EGKs. The Tribunal raised its concerns with Mr Bennett and invited him to consider its concerns and address them in examination in chief. Mr Bennett did so, and the Tribunal’s concerns were allayed in those respects. 55. Dr Jarvis called Dr Donald Bryden Fletcher to give evidence on behalf of the Respondent. Dr Fletcher is a Senior Ecologist in Research and Planning in the ACT Government and has a PhD from the University of Canberra. His PhD was on a topic relating to population dynamics of Eastern Grey Kangaroos in temperate grasslands. His current duties relate specifically to kangaroo populations in the ACT. The Licence Application 56. On 23 March 2009 the Department of Defence applied to the Conservator, pursuant to section 103 of the NCA, for a licence to kill 7000 EGKs at the MTA. The letter accompanying the application indicated that the application was made “in order to manage the overpopulation of kangaroos at the MTA” and “to prevent further damage to the grassy ecosystems at the MTA”. The letter noted that the Cooper Report recommended an urgent reduction in the kangaroo population in the Majura Valley, which includes the MTA. 57. The letter said that Defence would engage a professional team of appropriately accredited shooters holding a current “Kangaroo Culling Permit” in the ACT, and would ensure that all kangaroos, including joeys, are euthanised in accordance with the Code of Practice for the Humane Destruction of Kangaroos in the ACT. The Review Application 58. In its letter of 9 May 2009 accompanying the application for review of the licence decision of 9 April 2009 the Animal Welfare Community Legal Centre, acting for Animal Liberation, argued that the decision was wrongly made and should be set aside. In support of this position, the Centre argued as follows: The main reason for this view (although there are other reasons) is the Department’s reliance on two facts to justify the killing, both of which are in my client’s view contestable. First, the Department has said that its own surveys (unpublished) indicate that there are 9,000 kangaroos on the subject land, which is about 3 times the “carrying capacity” of the land. There is no published data to indicate either that the population or the “carrying capacity” of the land is as the Department claims. Furthermore, such population estimates are in any case notoriously unreliable. In this context, a statement to the media by the Parliamentary Secretary for Defence indicates that the department’s view is that the kangaroos are starving. My client has evidence that this is not the case. Second, the Department also justifies the killing on the basis that over-grazing by kangaroos is threatening the habitat of several species which have been declared to be threatened species, pursuant to the Nature Conservation Act 1980. The Department cites a report by the Commissioner for Sustainability and the Environment in support of this contention. That report indicates that the relevant threatened habitat occupies only a small fraction (about 2%) of the total area of the subject land. Finally, the Department has said that the cull is urgently required in order to remove the threat to the relevant threatened species. There is no evidence that the situation concerning those species is so dire that it requires immediate action and in my client’s view alternative strategies to killing (such as fencing off sensitive areas) should be considered. In any case there is a relevant public consultation process taking place in relation to the ACT Kangaroo Management Plan, which has been released in draft form. In my client’s view it is premature to initiate this large scale cull ahead of public consideration of all the relevant issues and particularly the relevant scientific data. To conclude, my client’s view is that the Respondent in making the decision to issue the licence has not taken into account relevant considerations, and has taken into account irrelevant considerations. For these reasons my client believes that there are grounds for the Tribunal to set aside the decision to issue the licence. 59. Dr Jarvis submitted that the Respondent has concentrated its case on “ecological communities” because it makes little sense in ecological terms to speak of protecting an individual species in the absence of its habitat. Dr Fletcher stated that …natural temperate grassland is an ecological community in dire straits and the most endangered ecological community in Australia with less than 1% remaining (Kirkpatrick et al 1995). This grassland community now consists of highly fragmented and isolated small patches with very few remaining patches greater than 100 hectares. Many plant and animal species are found only in these native grasslands and are wholly dependent on these remnant patches for their survival. In relation to the situation in the Territory, Dr Fletcher said: Today only 5%, or 1,000 hectares, of the ACT’s original natural temperate grasslands still exists…Many of the remaining species of the grasslands and grassy woodlands are in danger of joining those on the list of locally or nationally extinct species” and are threatened by overgrazing. 60. Dr Fletcher’s statement, which draws on the ACT Grassland Strategy (2005) and the ACT Woodland Strategy (2004), identified the significance of kangaroo grazing impacts for these two communities in the following terms: Natural Temperate Grassland Low to moderate grazing is highly desirable and if not present, some other biomass removal process is essential such as grazing by livestock, mowing or burning. Continuous heavy grazing has a potentially major negative effect on the populations of grassland plants and animals. Yellow Box/Red Gum Grassy Woodland Kangaroo density must be much lower for woodlands than grasslands (see above) to retain ecosystem integrity. 61. While not resiling from the proposition that overgrazing by kangaroos is damaging to the ecology of grasslands, Dr Fletcher acknowledged that “…native grassland lightly or moderately grazed by kangaroos (or livestock) in general will be in better condition than native grassland that is not grazed for a long time”. Threatened (Vulnerable and Endangered) Species 62. Drawing on the ACT Grassland Strategy (2005) and the ACT Woodland Strategy (2004), Dr Fletcher identified 10 animal and 3 plant species that have been declared threatened in the ACT and identified as present at the MTA. Two in particular are stated to be at particular risk from overgrazing by kangaroos: Grassland Earless Dragon The species and its habitat appear to be maintained under stock and/or kangaroo grazing at low intensities. Heavy grazing pressure by stock, kangaroos, and/or rabbits reduces and/or degrades this habitat. Kangaroo grazing pressure (exacerbated by drought conditions), with resultant of tussock grassland structure, has impacted on the dragon population. Striped Legless Lizard The species and its habitat appear to be maintained under stock and/or kangaroo grazing at low intensities. Grass tussock structure, important for this species, is lost under heavy grazing pressure by stock, kangaroos and/or rabbits. 63. Dr Fletcher’s statement identified the Hooded Robin, the Brown Treecreeper, the White-winged Triller and the Superb Parrot as four bird species that are known or thought likely to be at risk from overgrazing. The Perunga Grasshopper is also thought to be at risk from overgrazing. The Golden Sun Moth is thought to benefit from light grazing. The statement says that it is not known if kangaroo grazing has an impact on the Canberra Orchid Spider, because studies are lacking, but fencing is proposed for the remaining orchid populations. 64. Five bird species––the Varied Sitella, the Painted Honeyeater, the Regent Honeyeater and the Swift Parrot are each described as follows: This species is not associated with the grassy understorey of the woodland. It seems unlikely that heavy grazing affects its abundance, but the relationship is not known because studies are lacking. 65. Dr Ben-Ami’s opinion, based on the information presented in the ENSR/AECOM report on Threatened Species Monitoring (1 July 2008) and information presented by Dr Fletcher, was that only the Canberra Spider Orchid, the Button Wrinklewort, Brown Treecreeper, Varied Sitella, White-winged Triller and Grassland Earless Dragon have been identified within the MTA. He commented that the Hooded Robin was not identified at the MTA in the ENSR/AECOM report. The Tribunal notes, however, that the report also said “…it is probable that Hooded Robins still occur in the MTA, but present in lower numbers in 2007, possibly due to seasonal conditions”. The Tribunal accepts the conclusions in the report in relation to the Hooded Robin. Kangaroo Numbers 66. Central to this case is how many kangaroos were at the MTA when the licence application was determined and how many remain after the recent cull. Much of the evidence presented by the Applicant and the Respondent, and much of the discussion at the hearing, centred on this question. The number of kangaroos at the MTA is of central significance in determining whether there is justification in further culling beyond that which has already occurred. 67. Dr Fletcher provided estimates of the kangaroo population at the MTA and its rate of growth, based on counts conducted from 2002 onwards. These counts indicated that the population rose from an estimated 3,200 in April 2002 to 11,200 in January 2009. Dr Fletcher acknowledged that there is a wide confidence interval around any individual count, but argued that the combination of all 14 counts provides a reliable basis for inferences about the population. Using regression analysis, Dr Fletcher estimated that there has been an average annual increase of 20% in the EGK population at the MTA since April 2002. 68. Dr Fletcher’s view was that this growth rate is more than sufficient to represent the first stage of a herbivore irruption. The term “herbivore irruption” describes the situation where the density of a herbivore population increases rapidly to the point where the population outstrips the food supply and then crashes to a much lower level. Dr Fletcher said that irruptions of kangaroo populations have been documented in the ACT over the past two decades––at Government House (Yarralumla), Tidbinbilla Nature Reserve, Googong Foreshores and Belconnen Naval Transmitting Station. Dr Fletcher argued that the prospect of such a crash at Majura is sufficient reason for a strong response, as the effects of the second stage on both the environment and the kangaroos would be severe––and worse than the extreme impacts already recorded. 69. In response to questioning by Mr Bennett, Dr Fletcher conceded that some of the data used in his regression analysis was not based on fully comparable areas within the MTA. Earlier figures excluded the old and new areas “H” added, to the MTA in the last two years while later estimates included them. He acknowledged that this created some problems for his analysis. Dr Fletcher provided a revised chart and regression analysis which purported to be based on comparable areas, by excluding the areas “H” that were added to the MTA in 2007 and 2008. Dr Jarvis submitted that the revised figure compared “apples with apples” and thus enabled the Tribunal to have the benefit of all the data from 2002 to 2009. 70. The Applicant disagrees that the kangaroo population at the MTA is beyond the carrying capacity of the land, and argues that kangaroo population estimates are notoriously unreliable. The Applicant asserts that there is no satisfactory evidence addressing the pre-killing population at the MTA and that the difficulties in accurately assessing the relevant kangaroo population are compounded by the fact that the boundaries of the MTA are not kangaroo proof. 71. In his initial witness statement, Dr Drummond presented the results of his statistical analysis of two reports prepared for the Department of Defence, which provided estimates of the kangaroo population at the MTA in 2007 and 2008. They are ENSR/AECOM report Kangaroo Impact Monitoring and Management Majura Training Area, ACT (SN01943, Final Report, September 2008) and SKM report Majura Kangaroo Impact Monitoring 2008–¬09 Interim Report on Kangaroo Census Spring 2008 (dated 4 February 2009). 72. Using statistical analysis, Dr Drummond had calculated confidence intervals for the population estimates in the two reports, which purport to show that there is a significant probability that there were less than 7000 kangaroos at the MTA prior to the recent cull. Dr Drummond said that the MTA kangaroo population estimates of 6054 for November 2007, 9085 for April 2008 and 9052 for November 2008 do not differ to a statistically significant degree; nor do any of the past five kangaroo population estimates for the period April 2007 to November 2008. His view was that no statistically significant upward or downward trend in the MTA kangaroo population is evident over the period April 2007 until November 2008. 73. Dr Drummond’s analysis was, however, overtaken to some extent by a further report, which became available shortly before the hearing. SKM report Majura Training Area Kangaroo Impact Monitoring 2008–09 (Final, 8 May 2009) documents the results from a monitoring exercise at the MTA in April 2009. It found that there was an estimated density for the whole area of 2.5 kangaroos per hectare and an estimated population of 11, 244. The “effective density”, after excluding the forest area, was estimated to be 3.3 kangaroos/ha. The density for the grassland areas was estimated to be 5.3 kangaroos/ha. 74. Dr Drummond undertook a statistical analysis of the latest report. In doing so, he became aware that the report had over-estimated the number of kangaroos at the MTA by failing to exclude the fenced exclosure area. This meant that there was an over-estimate of 632, and that the correct figure should be 10, 612. 75. In light of difficulties faced by the Tribunal in reconciling the conflicting evidence by Dr Fletcher and Dr Drummond and in view of apparent errors and inconsistencies in some of the documents before the Tribunal, the Tribunal sought and obtained the agreement of the Applicant and the Respondent that Dr Drummond and Dr Fletcher should collaborate to assist the Tribunal by giving their best estimate of the kangaroo population at the MTA, prior to the recent cull, having regard to the estimates in the SKM April 2009 report. Dr Drummond and Dr Fletcher did so and provided a 95% confidence interval of 16, 454 (upper limit) and 7, 681, (lower limit) around a mean of 10, 612. The 95% confidence interval means that there is a 95% probability that the actual number of kangaroos at the MTA at the time the April 2009 survey was conducted was between 7, 681 and 16, 454; and only a 2 ½ per cent probability that the number of kangaroos was less than 7, 681 or greater than16, 454. Open and Closed Systems 76. An issue raised in the evidence is whether kangaroos are free to move in and out of the MTA and whether the MTA is a “closed” or an “open” system. Dr Ramp said that not all patches of land within the landscape are the same: some are suitable for foraging and breeding (sources), while others are suitable only for foraging (sinks). In Dr Ramp’s view, the system at Majura is an open system and there is evidence of a pattern of kangaroo migration in and out of the MTA. Dr Ramp commented that the patterns of seasonal movement presented in Figure 6 in the ENSR/AECOM report, Kangaroo Impact Monitoring and Management, Majura Training Area, ACT (Final Report, September 2008) show that densities within the woodlands and forest are relatively stable, with only densities in the grassland increasing. In his opinion, this may possibly be explained by considering the kangaroo population to be composed of both permanent and temporary residents. Dr Ramp noted that a recent review of kangaroo dynamics by Coulson (2009) had argued that culling practice were unlikely to control numbers in kangaroo populations. 77. The Respondent does not dispute that kangaroos move in and out of the MTA. Dr Fletcher argued, however, that EGKs tend to be relatively sedentary and loyal to a particular area. In other words, EGKs were, for the most part, faithful to their range, and the tenor of Dr Fletcher’s evidence was that EGKs were not nomadic, nor were they as migratory as Dr Ramp suggested. It is Dr Fletcher’s view that there is not a great deal of migration in and out of the MTA. 78. Dr Ben-Ami was of the opinion that population irruptions are unlikely to occur in the MTA, as the area is an open system and resources are not restricted. He thought that an explanation of fluctuations in the number of kangaroos at the MTA, as recorded in reports by Defence contractors, may be that at certain times of the year kangaroos migrate in and out of the area, presumably in response to resource availability. He proposed that this dynamic would not result in a population irruption but rather a fluctuating population dependent on resource availability both within and outside the MTA. If one accepts Dr Fletcher’s evidence is this regard, namely, that EGKs are not as migratory or as wide ranging as suggested by Dr Ramp and Dr Ben Ami, then it is likely, in the Tribunal’s view, that something resembling the phenomenon described by Dr Fletcher is potentially occurring at the MTA. Are Kangaroos Having an Adverse Ecological Impact at the MTA? 79. Dr Fletcher stated that the effects of EGKs on the other fauna of the grassy ecosystems are indirect––through their removal of biomass and the consequent effects on habitat structure. Both plant and animal species are affected by habitat change. The abundance of an organism may be reduced by direct effects such as increased predation, or reduced food, but abundance is generally affected more powerfully by the indirect effect of changing its habitat. 80. The Respondent has provided two principal forms of evidence that kangaroos have severely degraded the land at the MTA with consequential severe impacts on the habitat of threatened species at the MTA––photographic evidence and evidence of reduced herbage mass recorded by Defence contractors. 81. Photos provided in Dr Fletcher’s report at Figure 13 show, in Dr Fletcher’s view, the effects of drought plus heavy grazing by kangaroos. The first photo (undated but apparently taken some time before 2003 during the summer surveys for GEDs from 1994 to 2002) is described as showing a pasture layer with a diverse layer of plant species, which the Tribunal understands is seen as desirable habitat for the GED. The second photo taken, presumably in the same area, during the 2006–07 summer survey season shows a heavily denuded landscape, described in the following terms: “Due to drought plus heavy grazing…the vegetation structure was simplified, ground cover had declined and there was not the habitat to shelter GEDs and their prey”. The third photo, taken at the same time as the second, shows a lightly grazed site nearby, where the grass had been maintained and approximately 20 times as many individual GEDs were detected by exactly the same survey method. Dr Fletcher’s interpretation of this photographic evidence was stated as follows: The three illustrations in Figure 13 are sufficient evidence that vegetation removal by kangaroos in the (now fenced) natural temperate grasslands at the Majura Training Area was mainly due to kangaroos, although drought was also a factor. The difference between the two sites was not the drought. The site with moderate vegetation cover and 20 times more grassland earless dragons had retained its ground cover because kangaroos were being controlled and livestock had been withdrawn. 82. On the basis of statistical analysis of data from surveys of the kangaroo population and annual monitoring of GEDs at the MTA, presented in Figure 14, Dr Fletcher has concluded that there is a significant negative relationship between kangaroo density and the size of the dragon population. Some further confirmatory evidence of this negative relationship can be seen in Figure 14, which shows a jump in the GED population after the installation of the kangaroo exclosure fence. 83. Other photos at Figure 19 in Dr Fletcher’s statement illustrate the effects of overgrazing by kangaroos in the woodland areas of the MTA. They show large patches of bare ground, tussocks on pedestals showing several centimetres of soil loss, dead tussocks, and widespread sheet erosion, which in some places has developed into rill erosion and active, expanding gully erosion. At least 300 hectares are said to be seriously affected. 84. Dr Ben-Ami commented that the photos in Figure 19 appear to be of selected areas within the site. He proposed that for an overall assessment a survey of multiple randomly selected sites would be appropriate. Dr Jarvis submitted that the photos in Dr Fletcher’s statement were not “representative” of the MTA as a whole, but were intended to be illustrative of the damage that Dr Fletcher attributed to overgrazing. The tenor of Dr Fletcher’s evidence in this regard was that, even if damage of this nature is occurring in some areas, that of itself is sufficiently serious to warrant action. 85. Referring to the top picture at page 49 of Annexure B to Dr Fletcher’s statement, showing a difference in the herbage level inside and outside a fenced area, Dr Ben-Ami was of the opinion that the picture indicates two things. The first is that kangaroos are reducing biomass and grass height. Secondly, there is a healthy regenerative potential in the MTA in spite of the ongoing drought. He thought that, once the drought ceases and normal rainfall patterns resume, it is reasonable to assume that grass land regeneration would occur with grazing pressure. 86. Both photos on page 49 can be seen as illustrating how “grazing exclusion devices” provide useful clues about what is affecting vegetation at the MTA. The top picture shows an area at the MTA in November 2007, with light kangaroo grazing inside a fenced area and heavy grazing outside. The area inside the fence shows a heavier growth of vegetation compared with that outside. This is seen as evidence that termites, other small animals and rain, which are presumed to have equal access to both sides of the fence, are not the cause of the variation in the vegetation level, the only difference between the two areas being the degree of grazing by kangaroos. The second photo is of a fallen tree which is acting as a grazing exclusion device by preventing kangaroo access to long green grass. Dead grass tussocks and bare ground are evident where kangaroo access is not prevented. The Tribunal regards this photographic evidence as compelling evidence of destruction of the habitat by overgrazing by kangaroos. 87. Referring to the bottom picture at page 49, Dr Ben-Ami was of the opinion that the photo indicates that, in spite of the drought conditions and supposed high kangaroo grazing pressure, there are still pockets of robust understorey. He proposed that such debris should be encouraged within the site as a means of retaining refugia for flora and fauna in times of drought. Herbage Surveys 88. Defence contractors have for some years been conducting surveys of the vegetation levels in the grassland and woodland areas of the MTA. The results are summarised in the chart at Figure 15 of Annexure B to Dr Fletcher’s statement. Included in the chart are figures for amount of pasture grown in small exclosure cages during 6-month periods in 2008 and 2009. Dr Fletcher’s interpretation of the results is as follows: The herbage mass values in the in the grazed pasture are well below levels advised for sustainable grazing systems. That this is primarily an effect of large herbivores, not drought or insects, is demonstrated by comparison with the herbage mass in mobile grazing exclosure cages. … While lower than might be expected in non-drought conditions, the ungrazed herbage mass is far higher than the herbage mass in the grazed area. This demonstrates that the exceptionally low herbage mass in the grazed area is due to grazing by animals which the cages exclude, rather than drought. 89. Dr Ben-Ami commented that Figure 15 is limited because there are no errors of the estimates. He was of the opinion that Figure 15 indicates that herbage mass for 2009 may have increased by 150% from 2007 levels, without a kangaroo cull and within a drought period. He thought that this points to the likelihood of a recovery taking place when the normal rainfall patterns resume. 90. Dr Fletcher proposed that the vegetation values at the MTA are “below equilibrium”, and compatible with the concept of herbivore irruption. He continued: These sorts of estimates are not the basis for precise forecasts, but they should be taken as clear warning that the population may enter phase two of the irruption at any time. The time of the change in the direction will depend on the weather. The good grass growth in the spring of 2008 will have helped postpone the crash which inevitably lay ahead. The culling to date and further good rain will postpone it again. Another remarkable feature of Figure 15 is the small variation between measurements in the grazed pasture. There is merely a suggestion of a dip in the winter of 2008 and a small rise in the spring of the same year. The “flat” pattern of this pasture is indicative of heavy grazing, with the kangaroo population eating the pasture about as low as it is able, and most plant growth being used to make kangaroos, rather than making plant parts such as flowers, seeds and rhizomes. 91. Evidence is also presented in Dr Fletcher’s report (Figures 16–18) relating to groundcover levels at the MTA, based on data in the Draft ACT Kangaroo Management Plan (March 2009) and data collected by Defence consultants. Dr Fletcher said that the data suggests a significant decline in the level of groundcover from the earlier part of this decade to a point in 2008 when the level appears to have dropped below the 70% standard for groundcover in the ACT region by the Murrumbidgee Catchment Management Board (MCMB), 2003. Dr Fletcher’s statement indicates that below the 70% level there is a sharp increase in the rate of soil loss by water erosion. In Dr Fletcher’s view the groundcover values recorded at the MTA are a warning to think carefully whether the health of the ecosystem needs an intervention to protect it. 92. Dr Ben-Ami noted an apparent inconsistency in the estimates for June 2008 in Figures 16 and 17. Figure 17 shows 69% ground cover while Figure 16 only shows 60%. He thought that the 70% MCMB threshold is well within the error estimate for the estimates for July 2007 and June 2008. He commented that “the dramatic biomass increase of 2009 is not presented and is likely to have placed ground cover well above 70%”. 93. Dr Ben-Ami added: Furthermore, it is not clear what the MCMB (2003) guideline of minimum cover was assessed for. The document suggests soil erosion. The study (Jeffries 1999) suggested as being the basis for the MCMB (2003) guideline refers to general trophic dynamics and is not particular to EGK, grasslands and woodlands dynamics found on this site. 94. Dr Ramp proposed that there are three primary measures of grazing impacts on plant diversity: biomass, richness and persistence. In his opinion, research that attempts to show grazing impacts by measuring grazing impacts by measuring the reduction in biomass does not reflect a valid scientific approach. Dr Fletcher disagreed and said that that statement was contrary to a great deal of literature and wisdom and there were many eminent ecologists using biomass for that purpose. Dr Ramp argued that in grazing dependent ecosystems, grazing is an important ecosystem function that promotes diversity and health, and in those systems if biomass were to remain constant it could be argued that the ecosystem was no longer healthy. Dr Fletcher agrees with this proposition. Dr Ramp proposed that by far the best method for detecting impacts is to examine species richness and the persistence of keystone species and bio-indicators. 95. Dr Ramp noted the results of a study that he conducted of a kangaroo population at Yan Yean, Victoria, which showed that, even in grasslands where forage quantity was extremely low, floristic diversity of those areas was similar to areas with far less grazing pressure (albeit with less biomass). There was, he said, no perceptible impact of kangaroo grazing on plant diversity and ecosystem health. Dr Ramp did not say whether the study encompassed impacts on animals and if so what they were. In this regard, the Tribunal notes that impacts of kangaroo grazing on animals at the MTA is central to this case. 96. Dr Ramp was of the opinion that “grazing levels of 1 to 2 kangaroos per hectare are sustainable in the long term in the temperate grassy woodlands of eastern Australia, and that self-regulation through movement in the landscape can prevent localized deleterious impacts”. (emphasis added) 97. Dr Ben-Ami noted that the Cooper Report says that MA01 contains several listed threatened species and a listed threatened ecological community. From his reading of the Cooper Report, it was his opinion that the threatened species and said by that report to be located in MA01 are not at risk from kangaroo grazing, as MA01 is enclosed behind a kangaroo fence. It was not necessary in his opinion to kill kangaroos on the MTA to protect the species and communities located within MA01. 98. Dr Fletcher’s evidence was that the fence was put around the best area of NTG having regard to the knowledge that GEDs were known to live there. He said that, although the monitored population of GEDs is now protected by a fence and may have begun increasing in response, there are patches of NTG outside the fence and GEDs have also been recorded on the “Malcolmvale” part of the MTA, which is outside the fence. 99. Dr Ben-Ami noted that the Cooper Report had said that the fencing of the MA01 area had transferred the threat resulting from grazing by kangaroos from MA01 to the surrounding woodlands. In his opinion there was no observational evidence presented in the report to support that view. He said that, in any case, as MA01 is about 126.6 ha and the MTA in total is 4448 ha (i.e. MA01 is just over 2% of the area of the MTA) any transfer of purported grazing threat to the rest of the MTA by exclusion of kangaroos from MA01 will have insignificant results, if indeed that threat exists. 100. Dr Ben-Ami noted the statement in Dr Fletcher’s report that the striped legless lizard is presumed to occur in the secondary grasslands or woodlands of the MTA, and that this presumption is seen as reason to remove the perceived grazing threat of kangaroos. In his opinion secondary grasslands occur in many areas, not just the MTA and are in no need of urgent protection. He argued that monitoring should be done within the MTA and in other similarly degraded grasslands outside the MTA to find the subject species before a decision is taken to cull kangaroos. 101. Dr Ben-Ami noted the evidence in Dr Fletcher’s report, presented at Figure 14, purporting to show an inverse relationship between the GED population and the kangaroo population in the now-fenced area of the MTA. He also noted Dr Fletcher’s statement that “inferences for inside the fence are applicable outside it”. His assessment of this evidence was as follows: In my opinion although the catch rate has obviously increased, the figure provides only limited information. Effectively, there is no control group. We do not know what happened on the other side of the fence in the same time period where kangaroos were still present. There are a host of other factors that could account for the increase in earless dragon population such as lizard reproductive biology, the exclusion of predators and response to improved climate (rain in the spring of 2008). These factors may interact with grazing pressure or act independently. An adequate survey model could have been designed to assess these possibilities. 102. He continued: Furthermore, neither the historic impact of cattle grazing, pasture improvement or ongoing predation is mentioned. This is a significant omission as cattle/sheep grazing would likely have long term impacts on the environment in MTA. It is known that previous owners grazed the land and that Defence leased the land (to control grass height) until the early 1990’s. MTA has also been treated with herbicides. Although the extent of this practice is unknown it could have had an impact on reptiles in particular. Likewise predation by foxes and cats and magpies could have a drastic effect on the small fauna regardless of grass cover. (bibliographic references omitted) Finally, alleviating kangaroo grazing pressure during drought may be correlated to an increase an increase in the earless dragon, but this is only relevant to MA01 where those parameters were monitored. The grassland systems outside MA01 are degraded and may have responded differently. There is a need for a similar monitoring programme in the secondary grasslands. 103. Dr Ben-Ami proposed that human movement and the presence of and movement of heavy machinery are included in the potential threats other than kangaroo grazing to endangered habitats at the MTA. However, as noted above, Mr Berger told the Tribunal that the MTA is used for light infantry training, that no heavy military vehicles or other equipment such as tanks are used on the site, and Defence personnel are required to drive only on formed roads when driving on the site. 104. Dr Ben-Ami noted that Table 5 in Dr Fletcher’s report (which draws on the ACT Woodland Strategy, 2005) states that kangaroo density must be much lower for woodlands than grasslands to retain ecosystem integrity. His opinion, based on a long term study by Dr Ramp and others for a temperate woodland system, is that densities of 1–2 kangaroos/ha are appropriate. He noted that the results of surveys presented in the 2008 ENSR/AECOM report (September 2008) indicated stable kangaroo densities within the woodlands (mixture of Yellow Box and other) mostly below 2 kangaroos/ha. Dr Ben-Ami thought that, following the recent cull, this density will have reduced further. Dr Ben-Ami noted also that the ENSR/AECOM report (dated 1 July 2008), which gave the results of surveys of plant species at the MTA and other sites in 2007–2008 found that the better quality woodland at the MTA is only a small proportion of the overall woodland. The report stated that high quality woodland habitat comprises an estimated 168 hectares (about 4.3%). 105. Dr Ben-Ami proposed that one alternative long-term management option for discrete areas such as the Yellow Box woodland is the installation of an electric fence such that the fence becomes permeable to kangaroo movement when the power is switched off, as has been done in MA01. 106. In the conclusions to his statement Dr Fletcher provided a convenient summary of his views and his evidence presented in terms of two of the relevant objectives in the Nature Conservation Strategy, as follows: 1. To enable species and communities that are threatened with extinction to and thrive in their natural habitats: The evidence … is that heavy grazing affects the health and integrity of grassy ecosystems in the ACT, including endangered ecological communities such as the yellow box–red gum woodland, and threatened species of the lowland grassy ecosystems which depend on ground layer vegetation for food or shelter. It is my expert opinion that without a major reduction in kangaroo grazing effects, there will be a further decline in the health of these endangered ecological communities, and the abundance of these threatened species. These examples apply at Majura Training Area, including the examples of yellow box–red gum woodland there, and threatened species such as the grassland earless dragon (outside the fenced area), striped legless lizard, golden sun moth, brown treecreeper, and hooded robin. 2. To prevent additional species an ecological communities from becoming threatened. The evidence … is that heavy grazing affects the health and integrity of grassy ecosystems of the ACT. Attention could particularly be given to the woodland communities (other than the threatened community) as they seem particularly vulnerable to heavy grazing pressure. … Outputs are available from an empirical ecological model of kangaroo grazing in grasslands, suggesting that a large increase in herbage mass is likely when kangaroo density is reduced to (and held at) 0.5 to 1.0 kangaroos/ha. Where both woodland and grassland communities are used by the kangaroo population, a small overgrazing crisis in the grassland may lead to more severe effects in the woodland. The precautionary approach required under the criteria requires a reduction of kangaroo density that is clearly sufficient––not merely to a level that would be sustainable, but to a level that enables repair of damage from previous overgrazing. The culling of 7000 kangaroos in 2009 would be a first step but further reduction would be desirable to meet this criterion. Precautionary Principle 107. Section 2.4 of the Nature Conservation Strategy states: Conservation of biological resources in the natural state requires an ecosystem approach based on information on biology and ecological processes and the effects of prevailing or forecast environmental influences––information that typically is incomplete. However, planning and management decisions still need to be made and, in recognition that with biological systems the wrong decision can have serious and permanent repercussions, a precautionary approach is warranted. This is the Precautionary Principle. It is concerned with decision-making under uncertainty and goes beyond the aim of conventional environmental policy that seeks to prevent damage to the environment once the risk of that damage is known or proved. The Precautionary Principle is particularly relevant to living things and their interactions with their environment––resources that lack substitutes and about which we know least. 108. The Applicant and the Respondent have both proposed that the precautionary principle should be applied in this case but to different ends. The Applicant argued that, in the absence of key evidence, coupled with the lack of reliable and accurate kangaroo population data, the Tribunal, in giving effect to a precautionary approach, should decline the licence application. 109. Dr Fletcher, however, argued that the precautionary approach required under the licensing criteria requires a substantial reduction in the kangaroo population in order to protect and repair damage to endangered ecological communities and threatened species. Dr Jarvis submitted that the approach adopted by the Applicant is an application of the precautionary principle in the wrong direction. He submitted that the principle should be applied in favour of communities and species that are endangered not EGKs that are not endangered. He added that, applied in the correct way, the principle requires that any caution should be exercised in favour of the endangered grassland and woodland ecological communities. Discussion of the Evidence 110. We turn first to the question whether kangaroos are causing damage to threatened ecological communities and to the habitat of threatened animal and plant species at the MTA. It is not disputed that the MTA is home to the Natural Temperate Grassland and the Yellow Box/Red Gum Grassy Woodland. Nor is it disputed that there are a number of threatened animal and plant species in the MTA, notably the Grassland Earless Dragon, although there is some dispute between the parties whether some species, such as the Hooded Robin, are now present at the MTA. On the basis of Dr Fletcher’s evidence, backed by several relevant reports accepted in evidence, the Tribunal accepts that there are several threatened species present at the MTA that are known or thought likely to be at risk from overgrazing. In light of the precautionary principle, we have accepted that there are other threatened species that may also be at risk and should be protected even though the evidence is incomplete. 111. The Respondent has provided a considerable amount of evidence demonstrating that overgrazing by kangaroos is causing severe damage to the grassland and the woodland. First, there is the photographic evidence that demonstrates convincingly that excessive removal of vegetation in different parts of the MTA has been caused by kangaroos. The photos of the differences between the grass cover inside and outside the fenced area and inside and outside the cages are persuasive evidence that the loss of vegetation has been cause by kangaroos and not by other causes such as drought. The Tribunal accepts that drought may be a contributing factor but does not accept that it has been the principal factor. Among other things, this loss of vegetation has caused the development of bare patches of ground, damage to tussock grasses, soil erosion and destruction of habitat for threatened species such as the Grassland Earless Dragon. We accept that the photos are not representative of the MTA as a whole, but they do demonstrate the existence of substantial damage caused by kangaroos to significant areas of the MTA. 112. Second, the photographic evidence is reinforced by the results of herbage surveys conducted by Defence contractors, which show that the vegetation levels in recent years at the MTA have been extremely low, and indicative, for example, of loss of habitat for Grassland Earless Dragons. Third, the data indicating that the groundcover level has in recent years dropped below the MCMB threshold figure of 70%, is evidence of risks to the habitat from soil loss and water erosion. Fourth, there is the statistical evidence presented by Dr Fletcher showing a significant negative correlation between the number of kangaroos and the number of Grassland Earless Dragons recorded in the now-fenced area. 113. For its part, the Applicant has sought to undermine the Respondent’s evidence and to argue that any damage at the MTA is not caused by kangaroos. Among the alternative possible explanations offered by the Applicant for the degraded habitat and impacts on threatened species at the MTA are drought; military activities; the effects of grazing by sheep and cattle; herbicides and predation by other animals. The Tribunal accepts that drought has probably been a contributing factor to some of the reduction of vegetation at the MTA in recent years. As to the other alternative explanations advanced by the Applicant, the Tribunal considers that no satisfactory evidence was put forward to back up these claims, nor was any satisfactory evidence advanced to refute the Respondent’s case that kangaroos are the principal cause of the damage. We note in this regard the submission by Dr Jarvis that, even if some areas of the MTA are degraded for reasons other than overgrazing by kangaroos, the Conservator (and now this Tribunal) has an obligation to protect them and not to allow kangaroos to be added to the list of damaging influences. 114. The Applicant has argued that the relevant threatened habitat of the Grassland Earless Dragon is now protected by the fence and therefore the further culling of kangaroos is not necessary. However, the evidence is that Grassland Earless Dragons occur outside the fenced area as does habitat for this threatened species. Moreover, other threatened species are present at the MTA and not restricted to the fenced area. The whole of the endangered Yellow Box/Red Gum Grassy Woodland is outside the fenced area. 115. In light of the foregoing evidence the Tribunal has concluded that overgrazing by kangaroos has caused and continues to cause severe damage to endangered ecological communities and to the habitat of threatened species at the MTA. 116. We now turn now to the question of the number of kangaroos at the MTA and whether there is justification in any further culling. Our starting point is that Dr Fletcher and Dr Drummond have agreed, on the basis of the most recent survey results in April 2009, that the estimated (mean) number of kangaroos prior to the recent cull was 10, 612, with an upper 95% confidence limit of 16,454 and a lower 95% confidence limit of 7, 681. The Tribunal considers that confidence limits are of limited practical help to the Tribunal in the circumstances of this case and that it needs to come up with its “best estimate” of the number of kangaroos prior to the recent cull and now present at the MTA. In light of the mean estimate of 10, 612 agreed by Dr Fletcher and Dr Drummond, the Tribunal has concluded that it is more likely than not that there were at least 10, 500 kangaroos present at the MTA before the recent cull, and that after the cull this has reduced to something of the order of 6, 600. 117. The Tribunal is satisfied, in light of the evidence as to the severity of the damage at the MTA caused by overgrazing by kangaroos, that the number of kangaroos has increased beyond the “carrying capacity” of the MTA, and that further culling is the only practical option to restore a better balance between the kangaroo population and the ecology of the area. The degraded condition of the site suggests to the Tribunal that the number of kangaroos at the site is more likely to be on the high side of the mean rather than the low side. 118. If the Conservator’s decision to reduce kangaroo numbers by 7000 were confirmed, this would mean that it is more likely than not that there would still be some 3500 kangaroos at the MTA after the completed cull, and that there would be little risk of reducing the numbers to an undesirably low level. With a population of 3500, the density for the whole of the MTA would be 0.78 kangaroos per hectare, with an “effective density” of 1.04 if the forest area were excluded. These figures are close to the range of 0.5 to 1.0 kangaroos per hectare that Dr Fletcher said is likely, if maintained, to lead to a large increase in herbage mass and improved habitat structure for small animals. In this connection we note Dr Ramp’s evidence that grazing levels of 1–2 kangaroos per hectare are sustainable in the long term in the temperate grassy woodlands of eastern Australia, which provides another relevant benchmark. 119. The Tribunal has therefore determined that the Conservator’s decision to approve the culling of 7, 000 kangaroos should be confirmed. 120. No evidence or argument was put to the Tribunal in support of culling by any method other than shooting by licensed shooters. We note that the Draft ACT Kangaroo Management Plan identifies shooting as the preferred technique for reduction of kangaroo densities in the ACT. The Code of Practice for the Humane Destruction Kangaroos in the ACT identifies shooting as an approved method for culling kangaroos. 121. In its letter of 9 May 2009 the Applicant argued that as a public consultation process in relation to the Draft ACT Kangaroo Management Plan was taking place, it would be premature to initiate a large scale cull ahead of public consideration of all the relevant issues and particularly the scientific data. The Tribunal is satisfied, however, that confirming the Conservator’s decision would not be inconsistent with anything in the Draft Plan, scientific or otherwise, or with current policy as expressed in recommendations in the reports of Kangaroo Advisory Committees. The Tribunal accepts that there is a significant degree of urgency in the current case indicating that any further culling should take place before the end of July 2009, and that it is therefore inappropriate to delay a decision until preparation of the ACT Kangaroo Management Plan has been finalised. An Assessment of the Expert Evidence 122. The Tribunal has had the benefit of hearing the expert evidence of Drs Ramp, Ben-Ami and Drummond, on behalf of the Applicant and Dr Fletcher on behalf of the Respondent. The Tribunal has had the benefit of observing the demeanour of Drs Drummond, Ben-Ami and Fletcher all of whom gave evidence in person at the hearing. Dr Ramp gave his evidence via telephone link. It was helpful evidence to which reference has been made. The Tribunal is of the view that all of the experts who gave evidence on behalf of the Applicant and the Respondent were appropriately qualified to assist the Tribunal in what has proved to be a difficult task. The Tribunal also acknowledges that all of the experts who gave evidence before the Tribunal did their best to give the Tribunal impartial and dispassionate evidence and the Tribunal finds that each expert did so. 123. Dr Drummond is a statistician who helpfully participated, together with Dr Fletcher, in an exercise as requested by the Tribunal to estimate the numbers of kangaroos present at the relevant time. In that respect, his evidence is not contentious. However, where the evidence of the other experts (Drs Fletcher, Ramp and Ben-Ami) conflicts, the Tribunal prefers the evidence of Dr Fletcher. 124. That is so because, unlike Dr Ramp and perhaps more particularly, Dr Ben-Ami, Dr Fletcher has spent virtually the whole of his professional career in the local field and a University environment in the Australian Capital Territory. Unlike Drs Ramp and Ben-Ami, Dr Fletcher is intimately familiar with the populations of EGKs in the temperate grasslands of the Australian Capital Territory. In particular, he is intimately familiar with the unique and endangered ecological communities and the threatened species of flora and fauna in the Territory. Finally, unlike Drs Ramp and Ben-Ami, Dr Fletcher has visited the subject land on several recent occasions and is therefore, in the Tribunal’s view, best equipped to assist the Tribunal as to its condition. Conclusions 125. There is compelling evidence that the number of Eastern Grey Kangaroos at the MTA has been increasing rapidly in recent years to the point where it has exceeded the carrying capacity of the land and, as a consequence, has caused substantial damage to declared ecological communities and declared threatened species. In order to prevent further damage and to enable the degraded areas to recover, it is necessary to reduce the kangaroo population at the MTA substantially. The Conservator’s decision of 9 April 2009 should be confirmed. The licence should be amended, however, to make clear that it only authorises killing of kangaroos in the ACT.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Decision herein of the ACT Civil & Administrative Tribunal.
Associate: Date: 22 June 2009
PUBLICATION DETAILS TO BE PUBLISHED To be completed by Tribunal Staff
PART A FILE NO: AT 09/47 APPLICANT: ANIMAL LIBERATION RESPONDENT: ACT CONSERVATOR OF FLORA AND FAUNA
COUNSEL APPEARING: APPLICANT: DR JARVIS RESPONDENT: MR BENNETT
SOLICITORS: APPLICANT: ACT GOVT SOLICITOR RESPONDENT: ANIMAL WELFARE COMMUNITY LEGAL CENTRE OTHER - AMICUS CURIAE: AUSTRALIAN GOVERNMENT SOLICITOR, REPRESENTING THE DEPARTMENT OF DEFENCE TRIBUNAL MEMBERS: MR B STEFANIAK APPEAL PRESIDENT MS L DONOHOE SENIOR MEMBER MR J ASHE SENIOR MEMBER
DATES OF HEARING: 2-5 JUNE 2009 PLACE: CANBERRA
DATE OF DECISION: 22 JUNE 2009 PLACE: CANBERRA
PART B RECOMMENDATION: FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( ) Following the unsuccessful AAT Appeal, one lawyer involved made the following comments; The Tribunal is subject to oversight, insofar as once it itself has rejected an appeal of its decision, the appellant has a right to go to the Supreme Court. Of course that is worthless in the present situation, because there is little point in mounting such an appeal if all the kangaroos would be dead by the time it was heard. And in any case, I'm afraid that the data which was sprung on us during the Tribunal hearing is very hard to argue against, not because it shows causation (ie increased kangaroo numbers directly threaten threatened species), but confirm enough to underpin existing widely-held prejudice (ie there are lots of kangaroos and they eat lots of grass...). The legal system is not a justice system. Most people cannot afford even a semblance of justice. The worst injustices happen when those with big wallets attack the helpless. I have often seen rich plaintiffs deliberately mount virtually unjustified legal actions against an opponent who, because of shortage of funds, cannot sustain a defence. The object is of course to ruin them. The AWI action against PETA was one such. Unfortunately for AWI, they chose the wrong victim (but it was close). A Parliament can (except for the limitations imposed on it by any relevant constitutional documents) do what the heck it likes. Full stop.**
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