Appeal against 1986 Kangaroo Kill

Re: FUND FOR ANIMALS LTD. And: MINISTER OF STATE FOR ARTS, HERITAGE AND ENVIRONMENT; QUEENSLAND GRAINGROWERS ASSOCIATION; UNITED GRAZIERS' ASSOCIATION OF QUEENSLAND; CATTLEMEN'S UNION OF AUSTRALIA; GRAZIERS AND PROFESSIONAL KANGAROO SHOOTERS ASSOCIATION OF QUEENSLAND; NATIONAL FARMERS' FEDERATION No. N85/229 AAT No. 2692 Wildlife Protection - Administrative Appeals Tribunal - Practice and Procedure Administrative Appeals Tribunal Decisions [Index] [Search] [Context] [Help]

ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION J.F. Gallop J. (Presidential Member) Mrs R.A. Balmford (Senior Member) Dr. D.B. Williams (Member)

HRNG

CANBERRA #DATE 6:6:1986

ORDER

The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the recommendation contained in paragraphs 97 to 99 inclusive of the Tribunal's Reasons for Decision.

JUDGE1

CONTENTS PART PARAGRAPHS I. INTRODUCTION The Applications and the Parties 1 - 4 The Legislation 5 - 11 The Applicant's Initial Submission 12 - 13 The Initial Application 14 - 19 The Present Application 20 - 22 The Documents Before the Tribunal 23 - 29 Historical Background 30 - 43

II. THE PREPARATION AND APPROVAL OF THE MANAGEMENT PROGRAM

The Preparation and Approval of the 1984 Management Program for Kangaroos in Queensland 44 - 49

The Preparation and Approval of the 1985 Management Program for Kangaroos in Queensland 50 - 58

The Text of the Original Gazettal 59 - 60

The Text of the Management Program 61 - 74

The Validity of the 1985 Management Program for Kangaroos in Queensland as Gazetted on 30 October, 1985 75 - 104

Participation of Ministers of the Crown of the States and the Northern Territory 105 - 107

III. THE SUBSTANCE OF THE MANAGEMENT PROGRAM The Species 108 - 109

The Regulation 110 - 111

Initial Submissions of the Applicant 112 - 113

Information as to the Whiptail Wallaby 114 - 117

Inclusion of the Two Grey Kangaroos in the same Quota 118 - 122

Lack of Enforcement of Separate Quotas 123

Measures to Ensure the Survival of the) Species ) 124 - 125 Monitoring and Assessment )

The Effect of Non-Compliance with Regulation 5(1) 126

Regulation 5(1) Generally 127 - 132

The Applicant's Final Submission 133 - 138

I. INTRODUCTION

The Application and the Parties

This is an application under paragraph 80(1)(a) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 ("the Wildlife Act") for the review of a decision by the Minister of State for Arts, Heritage and Environment declaring, pursuant to sub-section 10(1) of that Act, a management program entitled "Kangaroo Conservation and Management in Queensland" to be an approved management program for the purposes of that Act. An earlier application came on before the Tribunal, constituted by Morling J, Presidential Member, Mrs. Balmford, Senior Member, and Mr. Sinclair, Member, on 24 September, 1985 ("the earlier hearing"). On 26 September, 1985, for reasons which appear below, that application was stood over generally with leave to restore it to the list on two days' notice. The Tribunal handed down its Reasons for Adjourning Application ("the earlier Reasons") on 4 October, 1985. 2. The Tribunal found at the earlier hearing, as stated in the earlier Reasons, that the applicant, which is a company limited by guarantee, is competent to apply for review of the Minister's decision, since the decision relates to a matter included in the objects set out in its Memorandum of Association (see sub-section 27(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act)). 3. On 28 November, 1985, a Directions Hearing was conducted by Mr. I.R. Thompson, Deputy President. The Tribunal made inquiries of the solicitor for the respondent as to the position of the Queensland Government and its interest in the matter. Mr. Richmond, an officer of the Australian National Parks and Wildlife Service ("ANPWS") informed the Tribunal that the Queensland National Parks and Wildlife Service ("QNPWS") had been kept informed of developments, and had been advised by the ANPWS of the right, under the AAT Act, to apply to be joined as a party to these proceedings. 4. On that occasion, Mr. Thompson directed that certain organisations and associations of persons be notified of the proceedings. Following that direction, when the matter came on for hearing before the Tribunal on 11 November, 1985, the Queensland Graingrowers Association, the Cattlemen's Union of Australia, the United Graziers' Association of Queensland, the Graziers and Professional Kangaroo Shooters Association of Queensland and the National Farmers' Federation applied under sub-section 30(1A) of the AAT Act to be made parties to the proceedings on the basis that their interests were affected by the Minister's decision. Each of those organisations or associations of persons was one of those named in the direction made by the Deputy President. The Tribunal was satisfied from the content of their applications and material lodged by them and from statements made from the bar table that each of them has interests which are affected by the decision. Accordingly, the Tribunal ordered that they be made parties to the proceedings. All of those bodies, except the Graziers and Professional Kangaroo Shooters Association of Queensland (which made a written submission) were represented at the hearing. They produced evidence and made submissions which were of considerable assistance to the Tribunal. No application to be joined was made by the Queensland Government or by any department or agency of the Queensland Government.

Legislation

5. The long title of the Wildlife Act is "An Act to further the protection and conservation of wildlife by regulating the export and import of certain animals, plants and goods, and for related purposes", and the object of that Act is set out in Section 3 as follows:

"3. The object of this Act is to comply with the obligations of Australia under the Convention and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries by -

(a) regulating the export of specimens that are, or are derived from, native Australian animals or native Australian plants;

(b) regulating the export and import of specimens that are, or are derived from, animals, or plants, of a kind that are threatened with extinction;

(c) regulating the export and import of specimens that are, or are derived from, animals, or plants, of a kind that might become threatened with extinction if international trade in such specimens were not regulated;

(d) regulating the export and import of specimens that are, or are derived from, animals, or plants, of a kind that require, or might require, special protection by way of the regulation of international trade in such specimens;

(e) regulating the import of animals and plants of a kind the establishment of which in Australia or an external Territory could have an adverse effect (otherwise than by reason of a disease) on, or on the habitats of, native Australian animals or native Australian plants;

(f) regulating the export of specimens that are difficult to distinguish from specimens referred to in paragraph (a), (b), (c) or (d); and

(g) regulating the import of specimens that are difficult to distinguish from specimens referred to in paragraph (b), (c), (d) or (e)."

"Convention" is defined in sub-section 4(1) as meaning "the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington in the United States of America on 3 March 1973 (a copy of the version of which in the English language, apart from the Appendices to it, is set out in Schedule 8)." 6. Section 10 of the Wildlife Act, on which the applicant relies, is in the following terms:

"10.(1) Subject to any regulations referred to in sub-section (2), the Minister may, by instrument under his hand published in the Gazette, declare a management program that is being, is proposed to be, or has been, carried out, in Australia, in an external Territory or in another country to be an approved management program for the purposes of this Act.

(2) The regulations -

(a) may provide that the Minister shall not declare a management program to be an approved management program unless he is satisfied of certain matters in relation to the program; or

(b) may prescribe matters that are to be taken into account by the Minister when determining whether he shall declare a management program to be an approved management program."

"Management program" is defined in sub-section 4(1) as:

"a program for the protection, conservation or management of animals or of plants, or of both."

7. The Wildlife Protection (Regulation of Exports and Imports) Regulations ("the Regulations"), were enacted on 4 April, 1984. Sub-regulation 5(1), made in pursuance of sub-section 10(2) of the Wildlife Act, provides as follows:

"5.(1) For the purposes of sub-section 10(2) of the Act, the Minister shall not, subject to sub-regulation (2), declare a management program to be an approved management program unless he is satisfied -

(a) that there is available to the Designated Authority sufficient information concerning the biology of each species subject to the management program, and the role of that species in the ecosystems in which it occurs, to enable the Designated Authority to evaluate a management program for that species;

(b) that -

(i) in relation to permitting the import of specimens taken or specimens derived from specimens that have been taken, in accordance with the management program - the Designated Authority has received and considered information relating to the management program; or

(ii) in relation to permitting the export of specimens taken, or specimens derived from specimens that have been taken, in accordance with the management program - discussions have been held by the Designated Authority with the relevant body or bodies having powers or duties under any law of the Commonwealth, a State or a Territory for the protection, conservation or management of animals or plants, or of both, subject to the management program;

(c) after receiving and considering advice from the Designated Authority - that the management program contains measures to ensure that the taking in the wild, under that management program, of any specimen -

(i) will not be detrimental to the survival of the species or sub-species to which that specimen belongs; and

(ii) will be carried out at minimal risk to the continuing role of that species or sub-species in the ecosystems in which it occurs and so as to maintain the species or sub-species in a manner that is not likely to cause irreversible changes to, or long term deleterious effects on, the species, sub-species or its habitat; and

(d) after receiving and considering advice from the Designated Authority - that the management program provides for adequate periodic monitoring and assessment of the effects of the taking of specimens under that management program on the species, or sub-species to which those specimens belong, their habitat and such other species or sub-species as are specified in writing by the Designated Authority as likely to be affected by that taking."

Sub-regulation (2) relates to native Australian plants and is not relevant to this matter. 8. The significance of the approval of a management program by the Minister pursuant to Section 10 of the Wildlife Act derives from paragraph 21(b) and sub-paragraph 31(c)(iv) of that Act which, omitting irrelevant parts, read as follows:

"21. A person shall not, otherwise than in accordance with a permit or an authority, export -

...

(b) a specimen that is, or is derived from, a native Australian animal ...

31. ... the Minister shall not grant a permit to export a specimen that is, or is derived from, a native Australian animal ... unless the Designated Authority has advised him that he is satisfied -

...

(omitting (i), (ii) and (iii) dealing with captive animals and scientific research)

(iv) the specimen is, or is derived from, an animal specimen that was taken in accordance with an approved management program."

An "authority" to export (as opposed to a "permit") may be granted under any of Sections 39 to 43 in respect of scientific specimens, artificially propagated plants, or specimens to be used in travelling circuses or zoos; or, under Section 44, where "exceptional circumstances" exist. But paragraph 31(c)(iv) gives to the Minister effective control over what might be regarded as normal commercial export of products derived from native Australian animals, such as meat and skins. 9. It would appear that, by virtue of Sections 4, 17 and 18 of the Wildlife Act, the present "Designated Authority" is the Director of National Parks and Wildlife ("the Director") appointed under the National Parks and Wildlife Conservation Act 1975 ("the National Parks Act"). It was not suggested at the hearing that any other appointment had been made pursuant to sub-section 18(2) or that the Director had resigned the office pursuant to sub-section 18(5). The National Parks Act provides for the Director to be a corporation with perpetual succession (Section 15) and establishes the ANPWS "for the purpose of assisting the Director in the performance of his functions" (Section 33). Those functions are set out in Section 16 of the National Parks Act, and include:

"(b) to protect, conserve, manage and control wildlife;

...

(g) to make recommendations to the Minister in relation to -

...

(ii) the protection and conservation of wildlife throughout Australia."

Thus the adviser of the Minister for the purposes of the Wildlife Act is the Director, assisted by the ANPWS. 10. The effect of the definitions in sub-section 4(1) of the Wildlife Act is that the word "specimen" in sub-paragraph 31(c)(iv) means any member of the animal kingdom (other than man) and includes any part of an animal (such as meat) or any article derived from a single animal (such as a processed hide); and that the meaning of the word "taken" in sub-paragraph 31(c)(iv) includes, "caught", "captured", "trapped" and "killed". 11. Also relevant are Section 25(a) and paragraph 78(1)(a) of the Wildlife Act, which read:

"25. The Minister shall not grant a permit to export a specimen unless the Designated Authority has advised him that he is satisfied that the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to, the survival of -

(a) any species or sub-species."

"78.(1) The Minister shall ensure that -

(a) management programs for the purposes of this Act relating to the taking in or near Australia or in or near a prescribed Territory of specimens of native Australian animals or native Australian plants;

...

are formulated or determined, as the case requires, in accordance with procedures that provide for the participation of a Minister of the Crown of each State and a Minister of the Northern Territory, being Ministers whom the first-mentioned Minister considers to be appropriate for the purpose."

The Applicant's Submission

12. Briefly, the applicant's initial submission was that the management program before the Tribunal should be set aside on the ground that the Minister was not, or should not have been, satisfied as to the matters set out in Regulation 5(1) of the Regulation, and specifically that -

(i) there was insufficient information in terms of Regulation 5(1)(a) available concerning the biology of the Whiptail Wallaby;

(ii) the inclusion of the Western Grey Kangaroo with the Eastern Grey Kangaroo allowed uninformed exploitation of the former species, which was inconsistent with the requirements of Regulation 5(1)(c)(i);

(iii) there were not adequate measures to ensure the survival of the species concerned and their continuing role in the ecosystem in terms of Regulation 5(1)(c)(ii), particularly in respect of the Eastern Grey Kangaroo and the Wallaroo; and

(iv) there was insufficient provision for monitoring and assessment of the effects of the culling in respect of any of the species, contrary to the requirements of Regulation 5(1)(d).

This submission is considered at some length in Part III of these Reasons. 13. While the parties joined were, because of the damage caused by kangaroos to crops, pastures and fencing, concerned that the commercial culling of kangaroos in Queensland should continue on a substantial scale, it should be made clear at the outset that the applicant did not at any stage suggest that commercial culling should, in principle, be discontinued. The emphasis of the applicant's submission was on the needs which it perceived for more information and better monitoring, and at the conclusion of the hearing it submitted recommendations with a view to meeting those needs.

The Initial Application

14. It is necessary to set out at some length the history of this application for review. The application initially lodged was an application for review by the Tribunal of a decision published and in the following terms in the Commonwealth of Australia Gazette of 1 May, 1985:

"COMMONWEALTH OF AUSTRALIA

Wildlife Protection (Regulation of Exports and Imports) Act 1982

Section 10

DECLARATION OF APPROVED MANAGEMENT PROGRAMS

I, BARRY COHEN, the Minister of State for Arts, Heritage and Environment, in pursuance of sub-section 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 hereby declare a management program specified in Column 2 of the Schedule, in an Item in the Schedule, to be an approved management program in relation to the species specified in Column 3 of the Schedule in that Item for a period commencing on 1 May 1985 and remaining in force to 31 December 1985.

Dated this nineteenth day of April 1985.

BARRY COHEN

Minister of State for Arts, Heritage and Environment

------------------------------

SCHEDULE

Column 1 Column 2 Column 3 Item Name of Management Species subject to Program Management Program

1. Kangaroo Conservation Macropus rufus and Management in Macropus giganteus Queensland Macropus robustus Macropus parryi"

The notification also referred to management programs for areas other than the State of Queensland and for other animal species. 15. When the matter was called on at the earlier hearing on 24 September, 1985, the Tribunal as then constituted drew the attention of the parties to the circumstance that the documents which had been lodged with the Tribunal by the respondent in pursuance of Section 37 of the AAT Act ("the T documents") did not include the document styled "Kangaroo Conservation and Management in Queensland" referred to, in the declaration as published, as being the management program thereby approved. Three documents, each entitled "Kangaroo Conservation and Management in Queensland", one dated March, 1975 ("the 1975 document"), one dated June, 1977 ("the 1977 document") and one dated March, 1984 (Exhibit 1), were put before the Tribunal at that earlier hearing. Each of those documents had been in existence at the date of publication of the gazettal declaration, and there was no indication as to which one was intended to be referred to in that declaration. It ultimately transpired that both the applicant and the respondent were proceeding on the assumption that what had been intended to be approved by the Minister was the document dated March, 1984, but with the quotas therein set out for the culling of several species of kangaroos replaced by different quotas which had been approved by the Minister on 14 February, 1985, in respect of the year 1985. 16. The respondent was not able, at the earlier hearing, to inform the Tribunal of any legislative basis for the Minister's approval of those quotas in February, 1985. They were not formally incorporated in, or expressed to form part of, any management program which could be given legal effect under Section 10 of the Wildlife Act and no other provision of that Act has any relevance to the approval of culling quotas. The Tribunal has not been advised that there existed in 1985 any other legislative provision which would give any legal effect to that approval. Evidence of the history of the practice of setting culling quotas was produced by the respondent at the later hearing, as to which see paragraphs 39 and 41 infra. 17. The expression "culling quota" is generally used throughout the material before the Tribunal, and we have accordingly adopted that usage. We would, however, record our view that the process referred to is one of "killing" or "harvesting" rather than culling. The verb "to cull" implies, in our view, a degree of selectivity in the taking of the animals which is absent from the process of killing hundreds of thousands of kangaroos and the manner in which that killing is performed, which appears from the evidence to be chiefly by spotlight shooting at night. Paragraph 31(c)(iv) of the Wildlife Act uses the word "taken", and "take" is, as has been said, defined in sub-section 4(1) as including "catch, capture, trap and kill". The word "cull" is perhaps intended to carry less emotional content than "kill"; it is, however, certainly less accurate. "Harvest", at least in the context of the industry, can be said to be reasonably accurate. 18. It was clear at the hearing that, for reasons which were not, at that stage, apparent, the practice in the past had been for the Minister to approve culling quotas annually in respect of a calendar year. On the coming into operation of the Wildlife Act on 1 May, 1984, it was seen as important to approve a management program in order to enable the export of kangaroo products to continue and this was done, for a twelve-month period commencing on either 19 April or 1 May, 1984 (see paragraphs 44 and 49 infra). On 27 April, 1985 (as to which date see paragraph 60), with the intention of ensuring that in future the quotas and the program might both be approved in respect of the calendar year, the 1984 program, including the 1984 quotas, was re-approved for the balance of 1985, without reference to the fact that the Minister had already, in February, purported to approve quotas for 1985 (see paragraphs 50 to 58 infra). 19. The Tribunal decided at the original hearing that the inadequacy of the Gazette notification (see paragraph 15 supra), coupled with the assumption on which both parties had proceeded so far, that the approved quotas in any case were different from those appearing in the document intended to be described in the gazettal, meant that the parties had brought to the Tribunal what was in effect a false issue. However, the Tribunal was told by counsel for the applicant (whose statement was not challenged by the respondent) that it was his understanding that a program on the basis of what had been intended to be approved was currently being implemented in Queensland, in that tags to the number of the February, 1985, quotas had been issued (see further paragraph 77 infra). Having been so informed, the Tribunal decided that the application should be stood over generally, with leave to restore it to the list on two days' notice, to enable an appropriate approval and gazettal to take place. This was done and the fresh approval gazetted on 30 October, 1985, in the following terms (replacing a gazettal on 18 October which was vitiated by a printing error):

"COMMONWEALTH OF AUSTRALIA

Wildlife Protection (Regulation of Exports and Imports) Act 1982

VARIATION OF DECLARATION OF APPROVED MANAGEMENT PROGRAMS

I, BARRY COHEN, Minister of State for Arts, Heritage and Environment, pursuant to sub-section 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982, hereby vary the declaration under sub-section 10(1) of that Act published in the Gazette on 1 May 1985, being the declaration relating, amongst other things, to the management program entitled "Kangaroo Conservation and Management in Queensland" -

(a) by omitting item 1 in the Schedule to that declaration; and

(b) being satisfied that the requirements set out in paragraphs 5(1)(a) to (d) (inclusive) of the Wildlife Protection (Regulation of Exports and Imports) Regulations have been satisfied in relation to the following management program - by substituting the following item:

1 The management program described Macropus under the heading 'Kangaroo rufus Conservation and Management in Macropus Queensland' at pages 1 to 31 giganteus (inclusive) in the publication Macropus entitled 'Kangaroo Management fuliginosus Programs of the Australian States', Macropus published by the Commonwealth of robustus Australia in June 1984, as that Macropus management program is being parryi carried out in Australia in 1985 providing, in respect of the year 1985, for the following respective quotas for the culling in Queensland animals of the following species:

Red kangaroo (Macropus rufus) 250,000 Grey kangaroo (Macropus giganteus) 720,000 and (Macropus fuliginosus) (aggregate both species) Wallaroo (Macropus robustus) 70,000 Whiptail wallaby (Macropus parryi) 40,000

Dated sixteenth day of October 1985.

BARRY COHEN

Minister of State for Arts, Heritage and Environment

The Present Application

20. An application for review of that decision was lodged with the Tribunal by the applicant on 4 November 1985. The hearing of that application proceeded before the present reconstituted Tribunal on the basis that the decision which both parties intended to have reviewed had now been properly made and was before the Tribunal. The documents which had been placed before the earlier hearing were admitted in evidence, as were the transcript of the earlier hearing and the earlier Reasons. Further, the publication entitled "Kangaroo Management Programs in the Australian States" referred to in the gazettal of 30 October 1985 was put in evidence as Exhibit 34 and thereafter the management program dated March 1984 was referred to by reference to that Exhibit. It appeared that Exhibit 1 was printed from the same original as pages 1-31 of Exhibit 34, albeit on a slightly larger scale; and that the only difference betwen the two documents was the attempted correction on page 21 of Exhibit 1, referred to in sub-paragraph 63(i) infra. The hearing of this matter took place in Sydney over eight hearing days and concluded on 19 December 1985, when the Tribunal reserved its decision. 21. Evidence was given at the hearing by Dr. Martin Denny, a consultant ecologist, and Mr. Peter Rawlinson, Senior Lecturer in Zoology at La Trobe University in Victoria, both of whom were called by the applicant; and by Dr. Colin Southwell, Senior Project Officer with the National Kangaroo Monitoring Unit of the ANPWS, Dr. Thomas Kirkpatrick, Chief Research Officer with the QNPWS, and Mr. Darryl Miller, head of the section of the ANPWS responsible for the administration and implementation of the Wildlife Act, all of whom were called by the respondent. 22. It is appropriate to draw attention here to the principle established by the Federal Court in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589, namely that the question for the determination of this Tribunal is not whether the decision which the Minister made was the correct or preferable one on the material before him. The question for the determination of this Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

The Documents Before the Tribunal

23. By the conclusion of the proceedings five written submissions, four proofs of evidence and ninety exhibits had been placed before the Tribunal. Twelve exhibits were lodged by the applicant, seventy-one by the respondent (including the sixteen T documents), and seven by the parties joined. Many of the exhibits were reprints of scientific articles: one was a book of over two hundred pages. One was a computer printout of a bibliography on kangaroos which was described as including over two thousand references. The Tribunal made clear to counsel that it proposed to refer, if necessary, to other relevant published material relating to kangaroos, and invited counsels' comments. No objection was raised by either counsel to this course. (See the remarks of the Full Court of the Federal Court as to the Tribunal's use of medical publications in the two recent decisions of McMullen v. Commissioner for Superannuation (1985) 61 ALR 189 at 207 ff and Kirkpatrick v. The Commonwealth of Australia (1985) 62 ALR 533 at 538-9.) 24. Section 80 of the Wildlife Act provides for review by the Tribunal of decisions made under a number of different provisions of that Act. This is the first such application which has been heard by the Tribunal. We have already referred (see paragraph 15 supra) to the inadequacy of the T documents (the documents lodged pursuant to section 37 of the AAT Act), in that they did not include the management program, the approval of which was the decision sought to be reviewed. Nevertheless, the following additional comments are necessary. Sub-section 37(1) of the AAT Act reads:

"37. (1) A person who has made a decision that is the subject of an application for a review by the Tribunal shall, within 28 days after receiving notice of the application, lodge with the Tribunal such number of copies as is prescribed of -

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b) every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the Tribunal."

In pursuance of that requirement, the respondent lodged a copy of the application for review; a statement expressed only in the most general terms; and fourteen other documents, nine of which related specifically to the approval of the 1984 management program, two to the administration of the issue of export permits, and only three to the approval of the 1985 management program, the decision sought to be reviewed. It subsequently lodged fifty-five other exhibits. 25. In the hope that applicants, and the Tribunal, will be better served in future applications under the Wildlife Act, we bring to the attention of the respondent's advisers the words of the Tribunal in Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183 at pp 191-4, which are particularly relevant to the statement lodged in this matter as well as to the paucity of relevant documents. In that case the Tribunal, constituted by Fisher J (Deputy President), Mr. Hall (Senior Member as he then was) and Mr. Woodley (Member) said: (emphasis added in second and eighth paragraphs):

"In the present matter the Minister in making the decision under review relied, it would appear, substantially upon the opinion of the chief valuer Mr. Raison and his recommend- ation that the original valuation be confirmed. Mr. Raison was not exercising powers formally delegated to him (in the sense that the Minister had delegated his power to Messrs Henty and Watson), but it is in essence his opinion and recommendation which the owners are challenging. At one stage counsel for the Minister appeared to take the point that in these circumstances this opinion and recommendation was not capable of review. Subsequently he conceded (and in our view correctly conceded) that this opinion and recommendation formed an integral part of the decision making process, notwithstanding the fact that they were made by an officer of another department, and that they and all other component parts of such process were liable to review by this Tribunal. The terminology of s 37(1)(a) of the Act lends support to this view in that it imposes an obligation on the decision-maker to lodge with the Tribunal a statement "setting out the findings on material questions of fact ... and giving the reasons for its decision". It is significant that the legislature has not referred in subjective terms to his findings and his reasons. By way of contrast, s 37(1)(b) of the Act in requiring the lodging of documents that are in his possession or his control (ie the decision-maker's possession or control) reinforces the objectivity of sub-par (a).

It appears to the Tribunal therefore that s 37(1)(a) of the Act recognizes the way in which the decision-making process in fact operates, with the decision-maker frequently acting on recommendations, reports and results of investigations carried out by subordinate officers or appropriately qualified experts. Such officers or experts may not necessarily be employed in the department of the decision-maker. Thus if the decision-maker seeks the advice of an expert the s 37 statement should in a context such as the present incorporate any findings on questions of fact (and a reference to the evidence or other material on which the findings are based) which are made by the expert in arriving at his opinion or recommendations. Furthermore the reasons which have actuated the mind of the expert in making his recommendation or giving his opinion, if material to the decision of the decision-maker, should be included. If it was permissible for the decision-maker merely to indicate that he had relied upon the advice of a named expert, the intent of the section could be by-passed. Additionally, the benefits to the citizen in the obtaining of reasons, which in our view are fundamental to the whole scheme of administrative review embodied in the Act would be set at nought.

The obligations imposed by s 28 and s 37 are a crucial feature of the current right of the citizen to obtain from an impartial Tribunal a review of an administrative decision, and where appropriate the substitution by that Tribunal of another decision. The purpose of the supply of reasons was well stated by Megaw J in Re Poyser and Mills Arbitration (1964) 2 QB 467 at 477. His Lordship had this to say in respect of the corresponding section of the Tribunals and Inquiries Act 1958 which requires, it is to be noted, only a statement of the reasons for the decision:

'The whole purpose of s 12 of the Tribunals and Inquiries Act 1958 was to enable persons whose property, or whose interests, were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then, peoples' property and other interests might be gravely affected by a decision of some official. The decision might be perfectly right but the person against whom it was made was left with the real grievance that he was not told why the decision had been made. The purpose of s 12 was to remedy that .... Parliament provided that reasons shall be given and in my view that must be read as meaning that proper, adequate reasons must be given.'

Likewise in Iveagh v Minister of Housing and Local Government (1964) 1 QB 395 at 410 Lord Denning says of the same section: "The whole purpose of the enactment is to enable the parties and the courts to see what matters he (the Minister) has taken into consideration and what view he has reached on the points of fact and law which arise. If he does not deal with the points that arise, he fails in his duty and the court can order him to make good the omission."

In the same case at 405 Russel LJ, during argument, made the comment that 'the purpose of requiring the Minister to give reasons for his decision is to enable anyone interested to see whether there is in law a fault in his process of reasoning so that he may attack the decision'. This comment was made, of course, in the context of a judicial, as opposed to an administrative review.

By requiring the decision-maker to give not only the reasons for his decision but additionally a statement of "the findings on material questions of fact referring to the evidence or other material on which those findings were based", Parliament certainly intended that the citizen should be fully informed. These further requirements will be satisfied by a statement setting out the findings of fact, together with a reference to "the evidence or other material" on which the findings were based. It is important to note that neither s 28 nor s 37 requires that the relevant "evidence or other material" be "set out" in the statement, only that it be referred to. Moreover, the citizen's entitlement to be fully informed was not merely an incident arising in the course of and for the purpose of a review by this Tribunal. It is a right which arises consequent upon a decision being made which is capable of being so reviewed, and the reasons, when properly given, ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further, and if so whether to make the representations to the Minister, proceed in the appropriate court of law or to seek a review by this Tribunal.

...

It is against this background that we come to consider the owners' contention that the statement is inadequate and our right to require further and better particulars from the Minister. In considering the role that the Tribunal should play at this stage it is pertinent to bear in mind the obligation imposed on the Tribunal by s 39 of the Act to "ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case".

...

If the owner is to present an effective case he will require to be adequately informed of the matters which prompted the Minister's decision, and adequately informed, it might be said, by a statement intelligible to a layman."

26. The Tribunal notes further that, on 2 August 1985, prior to the earlier hearing, a Direction was given in this matter by the President of the Tribunal, to the following effect:

"The Tribunal directs that:

1. The applicant serve on the respondent and lodge with the Tribunal on or before 9 August 1985 a statement specifying the deficiencies alleged in the management programme.

2. The respondent serve on the applicant and lodge with the Tribunal on or before 23 August 1985 copies of all relevant documents (other than documents already lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in its possession or under its control or on which it intends to rely at that hearing of the application for review.

3. Proofs of evidence be exchanged and lodged with the Tribunal on or before 6 September 1985."

27. The applicant lodged with the Tribunal, well before the earlier hearing, a statement pursuant to Direction 1 and proofs of evidence pursuant to Direction 3. The respondent did not lodge proofs of evidence until the commencement of the earlier hearing; and each of the two proofs which it then lodged was replaced at a later stage. One of the replacements contained so many significant typing errors that it was necessary for it to be replaced in its turn. Only eighteen documents were lodged by the respondent before that hearing in response to Direction 2. A further thirty-seven documents were produced by the respondent at various stages of both hearings. Among those thirty-seven documents were the documents already referred to in paragraph 15 supra as containing the substance of the decision which was regarded by the parties as being the decision sought to be reviewed; namely, the management program dated March 1984 which the Minister had approved for 1985 (Exhibit 1) which was produced at the commencement of the earlier hearing; and the document signed by the Minister on 14 February 1985 containing the quotas which the Minister had purported to approve (Exhibit 33). This latter document was not even put before the Tribunal during the earlier hearing. It was produced at the date and time which had been appointed for the handing down of the Tribunal's earlier Reasons (thereby necessitating an adjournment of that handing down). 28. In Re Mann and Capital Territory Health Commission (No. 2) (decided on 14 December 1983: summary only at (1983) 5 ALN N368) the Tribunal, presided over by the President, Davies J., said (at pp 4-7), in the context of an application under the Freedom of Information Act 1982, but with an expressed intention to speak with general application:

"At that first hearing, the respondent should have presented to the Tribunal all the information which was necessary to enable the Tribunal to come to a decision with respect to the issue of possession. With respect to that issue, there was no relevant information that was not within the knowledge of employees of the Commission in their capacity as such ... . However, we regret to say that the commission did not attempt that task.

...

We have set out the above facts not because they indicate the substance of the matter but because we wish to make clear, for the benefit of the respondent and of other agencies who are respondents in FOI reviews by the Tribunal, that the presentation of facts in that manner to the Tribunal is entirely unacceptable. Had the Tribunal acted on the basis of that information, on the footing that that evidence disclosed the substance of the facts which the Tribunal had to consider, the Tribunal would have been misled, as will appear from the evidence which we later set out. In FOI reviews, as in other reviews, the Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents, who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there are facts known to the respondent which are not known to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? The Administrative Appeals Tribunal Act 1975 provides that in every case the decision-maker is to be party to a review. See s 30. This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed."

29. The account of the material placed before the Tribunal by the respondent, which is given in paragraphs 24 to 28 supra, demonstrates that those having the care and conduct of this matter on behalf of the respondent seem not to have understood the responsibilities laid on respondents before the Tribunal by the AAT Act. There are ample sources of information available as to the appropriate manner of complying with the requirements of the AAT Act and of the Tribunal. This lack of understanding becomes of more importance when considered in the context of the attitude of the ANPWS to the responsibilities placed on the Minister by the Wildlife Act. The Act made substantial changes to the responsibilities of the Minister, when compared with the arrangements previously existing. The extent and significance of those changes do not appear to have been properly appreciated by the Minister's advisers. In order to explain those changes it is necessary to set out at some length the history of the relationship between kangaroos and people in Australia since the early years of settlement.

Historical Background

30. One source for this and other parts of these Reasons should be the book The Kangaroo Keepers (Exhibit 40) edited by Dr. J.H. Lavery, Assistant Director of the QNPWS and published in 1985 by University of Queensland Press. Dr. Denny and Dr. Kirkpatrick are among the contributors. The book describes the research work on kangaroos carried out by the QNPWS (the "Kangaroo Keepers" of the title) and the application of that research. It was produced to the Tribunal by the Queensland Graingrowers Association. At the hearing it transpired that there were substantial discrepancies between figures in the Table appearing in the book of numbers of Macropodidae harvested annually in Queensland from 1954 to 1983 and corresponding figures in another publication before the Tribunal (Poole, cited in paragraph 32). Dr. Kirkpatrick explained that these discrepancies were due to typographical errors which had not been noticed until after the publication of the book. 31. A reference at page 98 of the book to "the Federal Customs (Export and Import) Act 1901 (later replaced by the Wildlife Protection (Regulation of Exports and Imports) Act 1982" also alerted the Tribunal to the need for care in relying upon material therein contained. There is not, and never has been, any Act entitled "Federal Customs (Export and Import) Act 1901". The Customs Act 1901, under which the export of kangaroos was formerly controlled, as explained in paragraph 36 infra, has not been "replaced" by the Wildlife Act. The legislative position is explained later in this part of the Reasons, and was clearly a matter not within the knowledge of the authors of the passage cited. Further, they appear to assume that no real change occurred with the introduction of the Wildlife Act. This is an attitude to which we shall need to refer again. 32. The principal sources for this part of the Reasons are Mr. Miller's evidence before the Tribunal and W.E. Poole Management of Kangaroo Harvesting in Australia (1984) ANPWS Occasional Paper No. 9 (Exhibit 9). In these Reasons, if we have relied on material contained in The Kangaroo Keepers, we have said so specifically. 33. There are three major components of the relationship between people and kangaroos in Australia. First, kangaroos are a major pest for the farming community. Secondly, a substantial kangaroo harvesting industry produces meat and skins for both domestic and export markets. Thirdly, not only in Australia, but in other parts of the world, kangaroos are seen as a significant, and in symbolic terms perhaps the most significant, native Australian animal. As to this, it can be assumed that no-one actually wishes to see any of the species concerned become extinct; and there are certainly people who abhor the killing of any kangaroos at all. Most Australians would probably have feelings lying somewhere between these two extremes. 34. The three aims of pest control, harvesting and conservation must somehow be reconciled. As to this, the Minister said at a public meeting in Charleville, Queensland, on 18 June 1985 (reported in Australian Foreign Affairs Record, vol. 56 no. 6 June 1985) (Exhibit E):

"I am the Minister for the Environment with the responsibility to protect the various species of kangaroos in sufficient numbers throughout their various habitats in Australia.

The Government as a whole also has a responsibility to ensure that Australia's primary producers do not have their properties so over-run with kangaroos that their livelihood and Australian prosperity is threatened. It is often difficult to strike a delicate balance between the two objectives. The purpose of the national management plan is to try to ensure that both of these objectives are met.

The kangaroo industry which includes shooters, pet food manufacturers and the skin and fur traders is seen by the Government as a tool in that management plan. We do not and I repeat do not see the industry as an end in itself. That may not please some of you but I would be less than honest if I suggested that I or the Government was implementing the management plan to ensure the prosperity of the kangaroo industry."

As the Minister administering the Wildlife Act, the Minister's direct responsibility in repect of kangaroos is, as he says, their protection: but given that the Government of which he is a member accepts a responsibility to control kangaroos as a pest, he must, in deciding to approve a management program, take account of both responsibilities. It should, however, be noted that the sole object of the Wildlife Act, made very clear in its long title and in Section 3 (both set out in paragraph 5 supra), is the protection and conservation of Australian wildlife, not the control of pests. 35. Queensland, like other Australian States, paid bounties on kangaroo scalps in the nineteenth and early twentieth centuries. Kangaroos were seen, and are still seen, as competing with domestic stock for water and for pasture, damaging fences and destroying crops. In the forty years prior to 1917, bounties were paid by the Queensland Government on some twenty-six million scalps (Poole, pp 3-4). A substantial kangaroo harvesting industry, based on the sale of skins, then developed. In the late 1950s, the decline of the rabbit population led wholesale butchers, pet food manufacturers and cold-store operators to turn their attention to kangaroo meat. Export and domestic markets were established. However, for lack of quality control, the export market for human consumption soon collapsed, and most kangaroo meat now taken is used in Australia for pet food. 36. In the 1960s, opposition to the commercial exploitation of kangaroos developed both in Australia and overseas, particularly in the United States. The Customs (Prohibited Exports) Regulations made under the Customs Act 1901 had for many years prohibited the export of kangaroo products without the prior consent of the Minister for Customs. That consent had been given consistently so as to permit the operation of a substantial export industry. In the year 1960-61, for example, over two and a half million kilograms of kangaroo meat and over half a million skins were exported from Australia (Poole, p 21). In January, 1973, the then Minister for Customs announced that, from 1 April 1973, he would not permit the export of kangaroo products until advised by the Minister for Environment and Conservation that such exports were not likely to cause the species of kangaroo from which they were derived to become endangered. 37. Fauna protection groups in the United States had expressed concern that kangaroos might be threatened with extinction as a result of overharvesting. Their efforts led in 1973 to the banning by the United States authorities, with effect from 30 December, 1974, of the importation of products from Red, Eastern Grey or Western Grey Kangaroos. 38. In March 1973, a meeting of State and Federal Conservation Ministers set up a working party of senior wildlife officers to report on techniques for collecting data on kangaroo populations and on the management of kangaroos to ensure their conservation. Poole summarises their findings in the following words (Exhibit 9, page 7):

"In May 1973, the Working Party reported that some species of kangaroos had been advantaged by environmental changes wrought by man, and that management of kangaroo populations was necessary to ensure a balance between the needs of kangaroos, other native species and man. This rationale provided the basis for continuing the use of controlled harvesting, which as undertaken by commercial interests, was both a valid and effective method of achieving the required balance. The Working Party suggested that further development of management programs was necessary and for the commercially harvested species, these programs should involve five distinct steps: habitat classification, reserve evaluation, population monitoring, determination of levels of safe harvesting and establishment of a national common basic system of control on harvesting. Guidelines for developing these steps were provided."

39. After considering the report of the working party, the Minister for the Environment and Conservation indicated that he would advise the Minister for Customs and Excise to allow the export of kangaroo products when certain requirements were met: namely, that he had received from each State wishing to export kangaroo products, a program for the management of the kangaroo species involved; that he was satisfied that the program was being effectively implemented; and that he had agreement from each State that an upper limit to harvesting (i.e. a "culling quota") would be fixed annually, following consultation between relevant State and Commonwealth authorities, and recommended to the Minister for Customs and Excise by the Minister for the Environment and Conservation. 40. In due course, State management programs were approved; and exports were permitted, from 21 August 1975 so far as Queensland was concerned, under the Customs (Prohibited Exports) Regulations as before. Negotiations between governments had led to a situation where the United States was prepared to accept imports of kangaroo products from a State if that State's management program had been certified by the Commonwealth Government as complying with prescribed standards. This was done as the several State management programs were approved. Exports to the United States then resumed, and have continued, although the matter has not been entirely resolved: it appears from the Minister's speech in June, 1985 (see paragraph 34 supra) that at that date the Red, Eastern Grey and Western Grey Kangaroos were still listed as threatened species under the United States Endangered Species Act 1973, and there was no evidence before the Tribunal which would suggest that the situation had changed at the time of hearing. 41. Pursuant to administrative arrangements, kangaroo culling quotas for each relevant State were approved in each year from 1975 to 1984 inclusive by the Minister for the Environment (however designated from time to time) and recommended to the Minister for Customs. The "relevant" States are Queensland, Western Australia, South Australia, New South Wales and Tasmania; commercial harvesting of kangaroos does not now take place in the Australian Capital Territory, the Northern Territory or Victoria. A perspective of the significance of Queensland in the national context is provided by the following table of the culling quota figures for each State in the years 1981-1983 (from Exhibit 58, which the Tribunal was informed had been provided to the Minister recently by the ANPWS):

ANNUAL CULLING QUOTA

1981 1982 1983

'000 '000 '000

New South Wales 694.5 843 843

Queensland 1500 1500 1500

South Australia 250 400 300

Western Australia 258 240 200

Tasmania 300 300 300

Victoria 30 33 -

42. State fauna authorities have met more or less regularly since 1908 to discuss matters of common interest, and management of kangaroos has been prominent on agendas since 1936. Ministers with relevant responsibilities in respect of the Commonwealth, States, Northern Territory and Australian Capital Territory now meet as the Council of Nature Conservation Ministers (known as CONCOM). In 1981, CONCOM approved a National Kangaroo Management Program which appears to have been superseded by the National Plan of Management for Kangaroos (Exhibit 17; referred to by the Minister in his speech quoted in paragraph 34 supra) which was approved by CONCOM in May 1985. That part of the National Plan which was before the Tribunal sets out guidelines for the development and implementation of kangaroo management programs by those States (including Queensland) which permit culled kangaroos to be used for commerce. In the 1985 document the aims of kangaroo management are stated to be:

"to maintain populations of kangaroos over their natural ranges; and

to contain the deleterious effects of kangaroos on other land management practices."

43. The Wildlife Act was passed by Parliament in 1982 and came into operation on 1 May 1984. The Regulations were made on 4 April 1984. Amendments to the Customs (Prohibited Exports) Regulations with effect from 1 May 1984 removed from the Regulations all references, direct or indirect, to (inter alia) kangaroo products. The Commonwealth's control over the export of kangaroo products thus passed from the Minister for Customs to the Minister for the Environment and was made formally dependent upon that Minister's approval of management programs (see paragraphs 6 and 8 supra).

II. THE PREPARATION AND APPROVAL OF THE MANAGEMENT PROGRAM

The Preparation and Approval of the 1984 Management Program for Kangaroos in Queensland

44. The T documents included a series of requests beginning in August 1983 by the ANPWS to the QNPWS asking for information relating to the current management program for kangaroos in Queensland. On 15 August 1983 the Director of the ANPWS (the Designated Authority for purposes of the Act, see paragraph 9 supra) wrote to the Director of the QNPWS advising him that the Wildlife Act had received Royal Assent and was to be proclaimed that month (which did not, in fact, happen). He enclosed a copy of the Wildlife Act, and of "general guidelines for the provision of information relating to a management program." He pointed out that approval of a management program was a prerequisite to export, enclosed a copy of information as to the Queensland management program which had been provided in the past by the QNPWS, and asked for advice as to its completeness and accuracy and for any further information necessary to address the matters covered by the guidelines. He continued

"A decision of the Minister to approve a management program is subject to review by the Administrative Appeals Tribunal where application for review has been lodged by an interested person or organisation. Section 27(2) of the Administrative Appeals Tribunal Act (1975) in effect gives standing to a range of conservation organisations. Under the Act this Service may be required to furnish such organisations with information used as the basis for a decision. It would be appropriate if you would provide the information in a form suitable for public release."

45. No reference was made in that letter to the provisions of sub-section 10(2) of the Wildlife Act, or to what was proposed to be the content of the Regulations, which were not, of course, enacted until 4 April 1984. However the reply from the Director of the QNPWS drew attention to "the need for most careful framing of the Regulations, with realistic inputs from the States imperative". That letter went on to say that an updating of Queensland's 1974 submission to the ANPWS had now been commenced. 46. On 30 November 1983 the Director of the ANPWS wrote to the Director of the QNPWS effectively requesting a copy of the Queensland management program for consideration at a meeting of the CONCOM Working Group on Kangaroo Management to be held on 13 and 14 December in that year. A draft of Regulation 5 was enclosed, and the letter concluded:

"Upon proclamation of the Act, items of the Customs (Prohibited Exports) Regulations relating to kangaroo products will be repealed and export of kangaroo products will require presentation of permits issued under the Act rather than the Restricted Goods Export Permits currently issued by the Australian Customs Service. As a consequence, it is most important that State kangaroo/wallaby management programs and recommendations of the Working Group are formally available to the Minister for Home Affairs and Environment for consideration in terms of the Act and Regulations prior to proclamation."

47. On 12 March 1984 the Director, in a telex referring to his letters of 15 August and 30 November 1983, advised the QNPWS that proclamation of the Wildlife Act was imminent. He effectively repeated the passage quoted above as to the need for urgency, and requested that the management program be submitted by 16 March. The copy of the telex before the Tribunal shows that it was sent, in identical terms, to the Wildlife Services of New South Wales, Queensland, South Australia and Western Australia. 48. So far as can be ascertained from the T documents, the first significant response from Queensland was a telex on 13 March 1984 to the effect that:

"The QNPWS operational program for kangaroo management has been described in the document Kangaroo Conservation and Management in Queensland First Supplement 1977.

An appropriately up-dated version of this management program is currently being finalised and will be forwarded to you as soon as possible".

On 3 April 1984 a telex from ANPWS requested further information under six headings. A reply of 9 April 1984 enclosed a ten page document ("the Appendix") supplying appropriate information under those six headings and entitled "Kangaroo Conservation and Management in Queensland: Appendix". From the content of that document and the telex of 3 April it is apparent that the updated management program referred to on 13 March 1984 must have been provided by the QNPWS to the ANPWS at some time between 13 March and 3 April, but there is no evidence of this in the T documents or elsewhere before the Tribunal. The T documents included a copy of the Appendix, though without any indication of the fact, explained in paragraph 62 below, that it was incorporated in the management program. No other part of the management program was included in the T documents. The culling quota did not appear in the Appendix and thus was not included in the T documents. 49. Also among the T documents were firstly a Minute of 17 April 1984 from the Director to the Acting Minister, recommending the approval of (inter alia) a management program for kangaroos in Queensland; secondly, a copy of a Declaration of Approval of Management Program signed by the Acting Minister for and on behalf of the Minister on 19 April 1984, and expressed to operate "during a period of one year commencing on this date"; and, thirdly, a telex from the Director to the QNPWS stating that the approval was gazetted on 1 May 1984, the date of coming into operation of the Act, and would cease to have effect one year from that date. We are not here concerned to determine the period of operation of that approval. No formal evidence was before us as to the content of the management program (or programs) the subject of the recommendation of 17 April 1984 or of the Declaration of Approval of 19 April 1984. However, Exhibit 1 as printed carries the endorsement "approved for and on behalf of the Minister for Home Affairs and Environment on 19 April 1984", and in all the circumstances we are prepared to assume that Exhibit 1 is a copy of the 1984 management program for kangaroos in Queensland as approved by the Acting Minister. The text of Exhibit 1 is examined further below (see paragraphs 61 and following).

The Preparation and Approval of the 1985 Management Program for Kangaroos in Queensland

50. Mr. Miller's evidence is of significance as indicating the departmental view of the effect of the Wildlife Act. He said that he was head of the section of the ANPWS responsible for the administration and implementation of the Wildlife Act, and that

"in administering the Act the Service (i.e. throughout Mr. Miller's evidence, the ANPWS) has sought to adhere, as far as possible, to the long-standing precedents established prior to its commencement on 1 May 1984."

The truth, and the implications, of this statement had become apparent to the Tribunal before that evidence was given. In that statement, it would appear, lies the root of the problems which have arisen in this matter, which have been apparent to the Tribunal, but less apparent to those advising or representing the respondent. 51. Mr. Miller also stated in his proof of evidence, without reference to any source:

"The purpose of the legislation, subsequently passed as the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was to:

(i) consolidate Commonwealth law relating to international trade in wildlife;

(ii) codify, where appropriate, administrative requirements and procedures under law, (in) particular those arising from decisions of the Federal Cabinet in 1933 and 1959;

(iii) allow Australia to more effectively control trade in specimens of species listed on (sic) CITES (the Convention on International Trade in Endangered Species, see paragraph 4 supra);

(iv) provide substantial penalties for offences involving trade in wildlife; and

(v) vest responsibility for this matter with the Commonwealth Minister responsible for environmental matters."

Comparison with the long title of the Wildlife Act and with Section 3 (see paragraph 5 supra) will show that this departmental view of the purpose of that Act is different from that of Parliament, as expressed in the Act itself. More importantly, the use of the words "consolidate" and "codify" under headings (i) and (ii) indicates an assumption that, in respect of the matters referred to under those heads, the Wildlife Act effected no change in the law. It is clear that that is simply not the case. Had the ANPWS directed itself to the provisions of the Wildlife Act, rather than to its own "long-standing precedents", it would have been better able to comply with those provisions. The purpose of an Act of Parliament is (in the absence of ambiguity, obscurity, or absurdity, as to which see section 15AB of the Acts Interpretation Act 1901) to be ascertained from the provisions of the Act of Parliament, and not from the intentions or expectations of those whose duty it is to administer it. As Higgins J said in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 at 161:

"The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole."

52. An extensive memorandum headed "1985 Queensland Kangaroo Harvest Quota : Submission to Australian National Parks and Wildlife Service" was before the Tribunal (Exhibit 6). The document is dated 30 November 1984, and it is to be assumed, in the absence of evidence, that it was received by the ANPWS at some time after that date. The memorandum set out to justify the Queensland Government's "intention to permit 1.5 million Macropods to enter commercial trade in Queensland during 1985". 53. An undated memorandum from the Director to the Minister (Exhibit 33, as to which see paragraph 21 supra) headed "Kangaroo Quotas for 1985" reads, so far as relevant for present purposes:

"In accordance with established procedures, ANPWS has sought advice from State and Territory Wildlife authorities on proposed quotas for 1985 for the harvesting of kangaroos and wallabies.

New South Wales, Queensland, South Australia, Tasmania and Western Australia submitted quota proposals. Discussions have been held with the responsible Authorities of these States on the justification for the quotas sought.

...

All States have agreed to the proposal except Queensland which has reservations. You may wish to discuss Queensland's reservations with the Queensland Minister for Tourism, National Parks, Sport and the Arts, Mr. McKechnie.

...

Queensland

Quotas proposed following discussions with Queensland National Parks and Wildlife Service are:

Quota Quota requested proposed

Red Kangaroo 500,000 250,000 Grey Kangaroo 860,000 720,000 Wallaroo 70,000 70,000 Whiptail Wallaby 50,000 40,000 Redneck Wallaby ) Agile Wallaby ) Swamp Wallaby ) 20,000 0 Blackstriped Wallaby) _________ _________ 1,500,000 1,080,000 _________ _________

(There follows an outline of the reasons for rejecting the Queensland request).

The 1985 quota proposed for Queensland is greater by 235,000 than the 1984 quota but 420,000 less than the quota requested."

54. That memorandum, incorporating quotas for the five relevant States, was approved by the Minister on 14 February 1985. It is clear that all concerned were under the impression that that approval of quotas, settled "in accordance with established procedures" in terms of the Director's memorandum, was of considerable significance. Evidence put before the Tribunal at the earlier hearing indicated that a press release, reporting the approval of the quotas, was given wide publicity. That impression as to the significance of the approval, however, derived from the assumption that nothing had really changed, which is described in paragraph 51 supra, and is consistent with the attitude of the QNPWS as manifested elsewhere. In previous years the approval of the quotas would, pursuant to the arrangements described in paragraph 32 supra, have been communicated to the Minister for Customs and become the basis for the issue of export permits for kangaroo products under the Customs (Prohibited Exports) Regulations. But since 1 May 1984 the issue of export permits for kangaroo products has depended, not on any decision made under those regulations, but on the approval of a management program under sub-section 10(1) of the Wildlife Act (see paragraphs 5-8 supra). It follows that the approval of the quotas on 14 February 1985 had no legal significance whatsoever as they were not a component of a management program (see paragraph 16 supra). This fact, however, does not appear to have occurred to anyone concerned until pointed out by the Tribunal at the earlier hearing. 55. As 1 May 1985 approached, there was an awareness that the 1984 management program was due to expire (together with kangaroo management programs for States other than Queensland, and management programs in respect of other species of wildlife). A memorandum of 18 April 1985 from the Director to the Minister included in the T documents, reads, so far as relevant:

"Kangaroos and Wallabies

7. Amended management programs have been received from South Australia, Queensland and Tasmania. New South Wales and Western Australia have requested that their programs approved in 1984 should stand without amendment.

8. It would seem to be beneficial to the Commonwealth for the current management programs to be extended to 31 December to enable the quota process to be formally made a part of the management program and approved on a calendar year basis from January 1, 1986. Approval of future management programs could then be achieved each January and include the agreed quota for the year. The Commonwealth would then be in a position to take action if it wished to do so to revoke an approved program if quotas were exceeded."

There followed a recommendation that certain management programs be approved. In all the material before the Tribunal there has been no reference to any "amended management program" for kangaroos in Queensland for 1985 and we do not know what was the document referred to in the first sentence in that extract. The best that we can do is to assume that it was intended to refer to Exhibit 6, requesting a quota totalling 1,500,000 kangaroos, read in conjunction with the 1984 management program so as together to constitute an "amended management program" for 1985. 56. It is clear from the evidence that, following that recommendation, what the Minister actually approved on 27 April 1985 in respect of Queensland for the period 1 May 1985 to 31 December 1985 was Exhibit 1, the original submission of the QNPWS in 1984, without amendments of any kind. Exhibit 1 contains the following passage under the heading "Culling Level":

"The 1984 Quota, based on and supported by data and arguments presented above, are (sic):

Red Kangaroo 250,000 Eastern Grey Kangaroo 500,000 Wallaroo 60,000 Whiptail Wallaby 35,000"

57. At this stage there are three separate culling quotas to be kept in mind, which are conveniently set out in historical order as follows:-

A B C Species 1984 Quota 1985 Quota Quota "Approved" Requested February 1985 (Exhibit 1) (Exhibit 6) (Exhibit 33)

Red Kangaroo 250,000 500,000 250,000 Grey Kangaroo 500,000 860,000 720,000 (both species) Wallaroo 60,000 70,000 70,000 Whiptail Wallaby 35,000 50,000 40,000 Redneck Wallaby ) 0 20,000 0 Agile Wallaby ) Swamp Wallaby ) Blackstriped Wallaby ) _______ _________ _________ Total 845,000 1,500,000 1,080,000 _______ _________ _________

58. It was clear to the Tribunal at the earlier hearing that all concerned had proceeded on the incorrect assumption that what had been approved for the remainder of 1985 was the 1984 program amended by the substitution of quota C in place of the 1984 quota A. Following the earlier hearing before the Tribunal, a Variation of Declaration, expressly incorporating quota C, was signed by the Minister on 16 October 1985 and gazetted on 30 October 1985. The text of that gazettal is set out in paragraph 19 supra. The hearing of the applicant's fresh application for review then proceeded as has been described.

The Text of the Original Gazettal

59. The principal defects in the making of the initial decision under sub-section 10(1) to approve a management program for kangaroos in Queensland for 1985 have been described in paragraphs 15 and following supra. There are other defects, less important in themselves, but significant as part of a pattern, to which attention should be drawn. 60. First, the original gazettal is as set out in paragraph 14 supra, which reproduces the date of the Minister's signature, appearing in the Gazette of 1 May, 1985 as "this nineteenth day of April 1985". Folio 44 of the T documents purports to reproduce the original document signed by the Minister, which bears date "this twenty seventh day of April 1985". Presumably a text was sent to the printer in anticipation of the Minister's signature and the proof not checked. We note that the recommendation by the Designated Authority, also in the T documents, is dated 18 April, and it may well have been assumed that the Minister would sign the Declaration on the following day. Or possibly the approval was drafted on a copy of the Acting Minister's approval of the 1984 program, dated 19 April 1984, and that date inadvertently carried over. There are, no doubt, other possibilities. Secondly, the management program (Exhibit 1) in the form approved, after referring to the Eastern Grey Kangaroo Macropus giganteus as an abundant species, states (at p.4):

"The western grey kangaroo Macropus fuliginosus, has only recently been confirmed from Queensland. Until changes can be made to legislation, which will be to permit this species to be taken commercially, it will continue to be included with the eastern grey kangaroo, as it was prior to the identification of its true specific status and the recognition of its occurrence in the State."

Nevertheless the Minister's approval of the management program, as gazetted, referred only to the Eastern Grey M.giganteus, thus separating the Eastern and the Western Grey Kangaroo as the program purported to be approved expressly does not do. (The gazettal of 30 October 1985, which is here under review, refers specifically to both species.)

The Text of the Management Program 61. The Act does not prescribe the form or content of a "management program", and no satisfactory evidence was before the Tribunal as to the meaning of the phrase. The intentions of the legislature in that regard must be gleaned from Section 10 and the definition in Section 4, supported by Regulation 5 (see paragraphs 5-6 supra). The relevant meaning of the word "program(me)" in the Shorter Oxford English Dictionary is "A definite plan of any intended proceedings"; and in the Random House Dictionary "a plan or schedule to be followed". The introduction of Exhibit 1, however, concludes:

"This account of the current management of harvested kangaroos in Queensland is in response to the most recent request by the Federal Government, under the provisions of the Wildlife Protection (Regulation of Exports and Imports) Act 1982. Previous accounts have been provided for the Federal Government in 1973 and 1977."

An "account of the current management" is not a "plan". There is no indication that Exhibit 1 had been prepared as a plan for submission to the Commonwealth for approval. Section 10, of course, expressly contemplates the approval of a program "that is being carried out" so that the distinction should not be pushed too far. However, the document as a whole gives the impression of something cobbled together in order to meet a series of requests by the Commonwealth, rather than a carefully drafted and consistent plan for the management of kangaroos in Queensland. It does not appear that any attempt was made, in the preparation of the management program, to comply with the "general guidelines for the provision of information relating to a management program" which had been enclosed in the Director's letter of 15 August 1983 (paragraph 44 supra). 62. The cover of Exhibit 1 reads "Kangaroo Conservation and Management in Queensland : Queensland National Parks and Wildlife Service March 1984" with the endorsement as to its approval on 19 April 1984 which is referred to in paragraph 49 supra. The general effect of the document is, to say the least, incoherent, as appears from the necessarily lengthy description which follows. As printed, Exhibit 1 consists of 31 pages, pages 1-2 being the cover. On pages 3-12 is the text which we assume to have been forwarded to the ANPWS between 13 March and 3 April 1984 (see paragraph 48 supra) and which is arranged under the following heads:

1. Introduction

2. Species Involved

3. Application of Kangaroo Management in Queensland

4. Effect of Land use on Kangaroo Habitat and Populations

5. Evaluation of Reserve/Sanctuary System

6. Assessment of Population Trends

7. Culling Level

8. Management Procedures

9. Selected References

There follows on pages 12-18 "Attachment 1", being a list of fauna sanctuaries referred to in Part 5. The Appendix referred to in paragraph 48 supra is inserted at this point, with the following six headings, derived from the ANPWS telex of 3 April 1984, namely:

1. General Location

2. Survey Details

3. Age and Sex Determination and Elapsed Time between Collection and Trend Analysis for Management

4. Non-hunting Mortality - Major Externally Generated Population Losses

5. Enforcement Details

6. Density Estimates of Whiptail Wallaby.

Next comes five pages of a Table with no heading, but which may be intended to be the" Table A1" referred to in the statement, "Recent prosecution statistics are included in Table A1", which appears in paragraph 5 of the Appendix. The Table is followed by Figures 1-4 on pages 27-30. These figures are the distribution maps for the four species of kangaroos in Queensland, which are referred to in Part 1 of the Appendix as being "in the main report" but which are actually located following the Appendix. Finally comes Figure A1, which appears from the T documents to have been originally prepared as part of the Appendix. 63. The impression that neither the QNPWS, in preparing the management program, nor the ANPWS in advising the Minister to approve the management program for 1985, regarded the document or the associated procedures as of much significance is supported by a number of errors and inconsistencies in the document itself. It should be noted that the Minister, in approving the management program, must be taken as having approved, not merely the document as a whole, but the whole of the document. Those errors and inconsistencies which have become apparent to the Tribunal are set out below.

(a) The scientific name of the Red Kangaroo is given on page 4 as Megaleia rufa. From The Kangaroo Keepers, the National Plan of Management for Kangaroos, and other recent material before the Tribunal, it is clear that its current scientific name is Macropus rufus.

(b) Page 4 includes the statement: "Maps of the range of each species are attached (Figures 1-3 and Attachment 1)". In fact the maps are Figures 1-4 and Attachment 1 is the list of fauna sanctuaries. The sentence quoted appears to have been taken without amendment from the 1977 document described in paragraph 15 supra.

(c) On page 7 there is a reference, in normal form, to "Poole 1978, in press" which reads oddly in a document dated March 1984. The list of Selected References on page 12 gives a full, but somewhat confusing, citation to both editions of the publication in question, in the following terms:

"POOLE, W.E. (1971) - Management of kangaroo harvesting in Australia. Australian National Parks and Wildlife Occasional Paper No. 2. 1st Edition 1977, 2nd Edition 1984.

POOLE, W.E. (1984) - Ibid. 2nd Edition (in press)."

These several overlapping citations appear to have been incorporated in the management program from different documents prepared at different times.

(d) On page 9 appears a reference to "the intended harvest for 1984" and "... the current state of kangaroo habitat throughout the State (in excellent condition following one of the wettest years on record)". Those references have no necessary relevance to 1985. The same applies to the statement on page 11 under "Management Procedures" that "The main provisions operating for 1984 are as follows."

(e) One of those "main provisions" set out on page 11 (the full text of which appears in paragraph 76 infra) is the existence of open seasons for specified species in specified fauna districts. The Gazette reference to that provision is given as 3 December 1983, (and a copy of the Gazette notice is expressed to be, but is not, attached to Exhibit 1; (nor is it attached to Exhibit 34). However, the Order in Council gazetted on 3 December, 1983, relates only to the period 1 January 1984 to 31 December 1984, and thus has no relevance at all to 1985. Further, on referring to the text of that Order in Council, the Tribunal found that the open season is expressed to operate, as to the Whiptail Wallaby, in four fauna districts, not three as stated on page 11 of the management program.

(f) The document contains numerous expressions based on time such as "a population simulation computer program is being developed" (p.7): "Distribution of all species, according to these data, have (sic) remained virtually unchanged since 1954" (p.8); "the Queensland National Parks and Wildlife Service has recently appointed research staff ..." (p.9): "it is anticipated that it will be available by mid-year" (p.19): "at present it is virtually impossible to make any meaningful assessment of populations in western Queensland because of the massive growth of ground flora" (p.20). Given the confusion manifest in sub-paragraphs (b) (c) and (d) above, it is not possible to be confident of the dates at which any of these statements were written, or to what periods they are intended to refer.

(g) On page 7 under the heading "(a) Harvest size" the second sentence of the third paragraph appears to be in note form and contains no main verb.

(h) On pages 9-10 under the heading "Kangaroo numbers" the following passage appears.

"The currently accepted technique, that of aerial counting, provides only an index of abundance, and one which is really relevant only to the conditions at the time of the survey, and which all the users of it acknowledge is an underestimate - at present of unknown magnitude - of real numbers. Given the unscientific use made of such figures by the so-called "conservation lobby", which in fact consists largely of dedicated anti-killing-of-animals-groups, the Queensland National Parks and Wildlife Service is not prepared to acknowledge numbers based on surveys of this kind and so provide these groups with a Service-provided basis for their unwarranted attacks, but prefers to rely on rational argument based on the monitoring data presented above to justify harvests."

The statements contained in the second sentence of this passage are pure polemic, and hardly appropriate for inclusion in a document of this kind. Further, in Exhibit 33 the Director expressly relies, as a basis of his recommendation to the Minister of proposed culling quotas for kangaroos in Queensland and elsewhere, on the results of aerial surveys of kangaroo numbers. That part of Exhibit 33 is undated, but it was approved by the Minister on 14 February 1985, more than two months before the initial approval of Exhibit 1 as the management program for 1985. In his speech at Charleville in June 1985 (cited in paragraph 34 supra) the Minister said:

"In the past Queensland has tended to be critical of any methods developed to assess population numbers and has argued that such information is unnecessry. Queensland is entitled to its view but I can tell you that in the arenas in which we have to defend and justify kangaroo harvesting, estimates of population numbers are absolutely critical. If Queensland has better methods more suited to its conditions these have to be subject to full scrutiny and they need to have credibility. It is not enough to make assertions regarding Queensland population levels or to cast aspersions on the aerial survey technique as Queensland has done in its State management program. It has to come up with something as good or better."

However, the Minister's approval of the State management program, two months before that speech was delivered, carried with it the approval of those aspersions on the aerial survey technique which were contained in the extract cited above. It is surprising that the Minister's advisers put those aspersions before him for approval, and that they were, in fact, approved by him two months before that speech was delivered.

(i) An error on page 21 as printed, (which was described by Dr. Kirkpatrick as "a typographical error" but which appears in the original typed text of that page, which was part of the Appendix, included in the T documents as described in paragraph 20 supra) gave the impression of a miscalculation by a factor of ten in a statement of Whiptail Wallaby density. Further, while that error was present in Exhibit 34, the published text of the program to which the gazettal of 30 October now before the Tribunal referred, it appeared that an attempt had been made to correct it in the copies of Exhibit 1 made available to the Tribunal at the earlier hearing, with the result that the evidence before the Tribunal was inconsistent with the document which the Minister had approved, and of which that evidence purported to be a copy.

(k) The distribution maps, for which no source is given, for the Eastern Grey and the Red Kangaroos, are inconsistent with the distribution for those species, for which an authority is given, which are included in the New South Wales management program which appears in Exhibit 34.

64. Not all of these manifest defects in the text of the management program are necessarily of great significance in themselves. But together they cannot but cast considerable doubt on the accuracy of other material contained in the document which is less readily checked. Regulation 5(1)(b)(ii) requires discussion with the relevant State body, and such discussions might have been expected to deal with such defects as these. The ANPWS does not appear to have perceived that it had any responsibility, when advising the Minister to approve the management program, to comment on any of its more visible deficiencies. The correspondence before the Tribunal, leading up to the approval of the management program in 1984 and again in 1985, gives the impression that the ANPWS (and indeed also the QNPWS) were concerned only to get some document formally approved by a given date to enable the culling of kangaroos and export of kangaroo products to continue. Save as to one aspect, considered at length in paragraphs 67 and following, infra, they were not very much concerned as to the actual content of the document. 65. We also note that, among the T documents, is a letter dated 5 July 1984 from the Director of the ANPWS to the Director of the QNPWS requesting "a list of tanneries which you are satisfied deal only in skins taken legally in accordance with an approved management program" and the reply to that letter from the Director of the QNPWS, dated 19 July 1984, which reads "As requested, the following establishments, registered as Class A skin dealers in Queensland, engage in tanning of skins in one form or another." There follows a list of names and addresses of tanneries. No further correspondence on this issue was placed before the Tribunal, and it would appear, therefore, in the absence of any evidence on the point, that neither the ANPWS nor the QNPWS was particularly concerned to satisfy itself that those or any other tanneries dealt only with animals taken in accordance with an approved management program. 66. Even granted the complexities of administration of Commonwealth-State relations, the conclusion is inescapable that the ANPWS appear to have adopted the attitude that neither the content of the management program, nor the formalities of approval of the management program, nor, more recently, the requirements of the AAT Act or of the Tribunal (as to which see paragraphs 24-29 supra), were matters which required its serious attention. To an extent, this attitude derives from the underlying assumption described in paragraph 51 supra, that nothing has really changed with the introduction of the Wildlife Act. Having reached this conclusion, the Tribunal, in considering the submission by the applicant that "The Minister was not, or ought not to have been satisfied as to the matters set out in paragraphs (a), (b), (c) and (d) of sub-section 5(1) of the Regulations", (a submission which is discussed at length in paragraphs 112 and following, infra) is put upon its enquiry as to whether, in advising the Minister as to the approval of the management program, the ANPWS regarded the matters set out in the regulation as worthy of serious consideration. 67. It does appear, however, that the ANPWS, in considering the advice which it should give to the Minister, did treat very seriously that section of the management program which set out the quotas for the culling of the several species of kangaroos. This raises a different issue, to which we now turn. 68. Miss Ward, who appeared for the respondent, initially submitted that the Minister's power under sub-section 10(1) is simply to declare a management program that is being, is proposed to be, or has been carried out ... to be an approved program". If a program falling under one of those three heads is submitted to the Minister, all that he can do is declare it to be an approved management program, or refuse to do so. He has no power unilaterally to amend the program before approving it. Should he wish to approve it in an amended form, he must obtain the agreement of the authority which is carrying out, or is proposing to carry out, the management program, so that it may amend accordingly the program which it is carrying out or proposes to carry out to a form which accords with that which the Minister wishes to approve. In the case of a program which has been carried out, no amendment is, of course, possible. 69. As stated in paragraph 58 supra, it was clear to the Tribunal at the earlier hearing that all concerned proceeded on the assumption that in April 1985 the Minister had approved the Queensland management program as requested by Queensland, with one variation, namely the incorporation of quota C, which was different in two respects from quota B, the quota requested by Queensland. Quota C reduced substantially the numbers of animals which would have been taken under quota B, and deleted four species of wallaby. The program incorporating quota B was, in April 1985, a program which was proposed to be carried out in Queensland by the Queensland authorities from 1 May 1985 to 31 December 1985. Had the Minister approved the program incorporating quota C, as it was intended that he should do, the program which he approved would not, on the basis of that initial submission of Miss Ward, have been the program proposed to be carried out in Queensland. 70. However, at a later stage of the hearing Miss Ward in effect withdrew that submission. She argued that a management program, initiated by a State and varied by the ANPWS before its approval by the Minister, is "a management program that is ... proposed to be carried out". As the expression "proposed to be carried out" in sub-section 10(1) does not specify any person or body by whom the program is to be so proposed, it is not necessary for that person or body to be the person or body who prepared and submitted the program. Thus in her submission, a variation made by the ANPWS to a program prepared by the QNPWS may still produce a program prepared in part by the ANPWS and in part by the QNPWS, which is "proposed" to be carried out in Queensland. 71. As a matter of language, anyone can "propose" anything, and on that basis, the Tribunal accepts Miss Ward's submission, so far as it relates to a program approved before its carrying out has commenced. The initial approval, in April 1985, of the management program for kangaroos in Queensland which was to have effect as from 1 May 1985, could be regarded as the approval of a program which, on the date of its approval was a program "proposed to be carried out". That is not the case with the management program under review, which was approved in October 1985 to operate from 1 May to 31 December, 1985, and thus must be considered as being, at the date of its approval, a management program "that is being ... carried out". Clearly if such a program is amended before its approval by the Minister, then what the Minister approves loses that character of being a program that is being carried out, and could be approved only as a program proposed to be carried out. 72. However, so far as a proposed program is concerned, a question arises, in any case, the relevance of which to the present matter will become apparent, as to whether the State authority which has initiated the original management program will in fact carry it out in the amended form which is "proposed". The Commonwealth Government and its agencies have no power to carry out a management program for kangaroos in Queensland. A private landowner in Queensland, who can, subject to the law, control what is done to kangaroos on his own property, may submit for approval a management program in respect of kangaroos on his own property. But nobody, other than such a Queensland landowner or the Queensland Government, could control any activity in respect of kangaroos in Queensland which it would be possible to describe as a "management program". Accordingly, if some other person or body were to "propose" a management program for kangaroos in Queensland and the Minister were to approve that management program, it would be a barren exercise without the support of either a landowner who has submitted a program in respect of his own property, or the government of Queensland, in respect of the whole or part of the State. Without that support the operation of the management program could not be controlled. 73. In the context of a management program which is "proposed to be carried out" Miss Ward argued that the power for persons other than a State government to "propose" a management program was essential to enable the Minister to carry out his responsibilities under the Wildlife Act. As we have said, we accept that such a power exists, but not for that reason. In Miss Ward's submission, the main concern of the Wildlife Act was the regulation of exports and imports, rather than the protection and conservation of wildlife. It is difficult to see how this submission could be maintained in the light of the plain meaning of the long title and objects section of that Act (see paragraph 5 supra). 74. On that basis, however, Miss Ward then submitted that a management program must be able to be "proposed" in terms of Section 10 by some body or bodies other than a State government, because if a State government did not propose a management program in respect of a given species within its State, then the Minister could be prevented from carrying out his responsibility under the Act to control exports. However, even if we accepted, as we do not, that the principal object of the Act is the control of exports, the effect of the Act is surely that, in the absence of an approved management program relating to a particular species, there can (with minute and insignificant exceptions) be no exports of that species to control; and that is, in fact, the case with respect to almost all species of Australian animals and plants.

The Validity of the 1985 Management Program for Kangaroos in Queensland as Gazetted on 30 October, 1985

75. Section 10 enables the approval of "a management program that is being, is proposed to be, or has been, carried out, in Australia." The question which now arises is whether the management program which was approved on 16 October 1985 and gazetted on 30 October 1985 fell within any one of the three heads of that description. (The text of the gazettal is set out in paragraph 19 supra.) That management program was manifestly not, in October 1985, a program which "has been carried out". For reasons which appear from paragraph 96 infra, we find that it was not, at that date, a program which was "proposed to be ... carried out". It was described by the Director in his recommendation to the Minister (see paragraph 55 supra) as "the current management program". Whether it was in fact, a management program which was "being .... carried out" at the time of its approval in October 1985, is the question to which we now turn. 76. Under the heading "Management Procedures", after citing the section of the Queensland Fauna Conservation Act 1974-1979 empowering the declaration of open seasons, the management program proceeds:

"The main provisions operating for 1984 are as follows:

(i) An open season exists in Fauna Districts 1-6 (Attachment 2) for the grey kangaroo and the wallaroo; in districts 1, 2, 4, 5 and 6 for the red kangaroo and in districts 1, 2 and 3 for the whiptail wallaby. (Gazettal notice 3 December 1983, Government Gazette pp 144687, Attachment 2.

(ii) A permit is required by a person intending to take open season species for commercial or any other purposes. He must declare the areas in which he intends to operate, and must have the written permission of the landholder (Regulations 6, 7 and 8).

(iii) Fauna dealers, whether in meat or skins of Kangaroos, must be licensed and registered (Regulations 13, 14, 15, 16 or 17, 18 and 19).

(iv) Both shooters and dealers must keep precise records of their take and dealings, both by numbers and species. Dealers must provide a monthly record of their dealings (Regulation 20); shooters must also provide a monthly record (Regulation 8 (3), gazettal notice of 3 December 1983).

(v) Fauna Dealers premises must be registered both by sites and purpose (skins, carcasses, or both); no premises may be relocated without permission of the Authority.

(vi) The total number of sites or premises registered in Queensland is determined annually by the Authority, but may not at any time, in any case exceed 150, and the total number may be located in any local authority area at any one time may also be restricted (Regulation 17(2) and (3)).

(vii) Movement of skins and carcasses both inter and intra-state is controlled by permits to move (Regulations 22-28).

(viii) The quota is controlled by self-locking, numbered plastic tags issued by the Queensland National Parks and Wildlife Service, which must be attached to the skin of each animal as it is taken, and may only be removed with permission of the Service (Regulation 29 (1) and (2)).

77. Reference has already been made (paragraph 19 supra) to the indications at the earlier hearing that, in effect, tags to the number of quota C (see paragraph 57 supra), the quota approved by the Minister in February 1985, had been issued before that earlier hearing. We assume that the words "the quota is controlled by" in item (viii) of the management procedures set out in the preceding paragraph are intended to convey the meaning that only tagged skins or carcasses are permitted to be dealt with by fauna dealers, and that only tags to the number of the approved quota and no more are issued at any time. Reference to the State Fauna Conservation Regulations 1974 as amended (which would appear to be the unidentified regulations to which the passage refers) is of some assistance here. Regulations 21(1) and 29, so far as relevant, read:

"21(1) Where under the provisions of Regulation 29 of these Regulations the Conservator has directed that fauna be tagged or marked, a fauna dealer shall not have such fauna in his possession unless the tag is attached or the mark applied".

"29(1) The Conservator may, as a condition of a permit issued under the provisions of this Act authorising the taking of fauna, require that the permittee shall tag or legibly mark such fauna at the time such fauna is taken.

(2) For the purposes of this Regulation the Conservator may

(a) specify the

(i) tag or mark to be used; and (ii) species of fauna to which such tag or mark relates; and

(b) direct -

(i) the manner of attachment or application as the case may require; and

(ii) in what circumstances such tag may be removed or mark obliterated."

The reader of item (viii) is presumably intended to assume that appropriate specifications and directions have been given by the Conservator of Fauna. No evidence on this matter was before the Tribunal, however. 78. Dr. Kirkpatrick is chief research officer with the QNPWS in charge of its research on kangaroos. He said in evidence that he was the author of the management program, and had been involved in the preparation of management plans for Queensland kangaroos since 1960. He was asked by counsel for the respondent:

"Looking at pages 1 to 31 inclusive of Exhibit 34 (= Exhibit 1), could you tell the tribunal if that management program as contained in Exhibit 34, together with those figures that you see for the various kangaroos in Exhibit 35 was the management program that was being carried on in Queensland on 16 October and on 30 October of this year?"

to which he replied "Yes, that is correct". However, in cross-examination he conceded that he did not know the number of tags issued; that it was, for logistic reasons, larger than the number provided for by the approved quota; and that it could have been as many as 1,400,000 in total. 79. This concession that the number of tags issued could have been far closer to quota B, Queensland's original request, than to quota C, the figure approved by the Minister in February, 1985, is inconsistent with Dr. Kirkpatrick's statement in evidence in chief, which had, as indicated in the preceding paragraph, been very precisely led by counsel for the respondent. In the context of the other evidence given by Dr. Kirkpatrick it was clear to the Tribunal that the later statement was the correct one, and that tags approaching the number in Queensland's original request had in fact been issued in 1985, enabling, so far as the shooters were concerned, the taking for commercial purposes of some three hundred thousand more kangaroos than the Minister had approved. This is a significant discrepancy between the management program approved by the Minister in October 1985 and the management program that was being carried out in October 1985. Further, we note that in his speech at Charleville in June 1985 (cited in paragraph 33 supra), the Minister said (emphasis added):

"The Queensland Government has stated that we have not given them the increase in the quota that they asked for. That is correct. They requested 1.5 million, an increase of 655,000 on 1984. However, they did not provide convincing evidence that there had been such a massive increase in the kangaroo population that there was a need for such a substantive increase in the cull quota.

I did tell the Queensland Government that if they could provide evidence of increase then consideration would be given to the quota being reviewed later in the year. Within months of the quotas being announced on 20 February I was informed that the majority of tags had been given out and that if I didn't increase the quota the tags would all be used and the industry would have to close down later in the year. I told the Minister as I have on many occasions that the quota figures are not there to serve the industry. As I said earlier the industry is a tool to control the kangaroo population not vice versa. The Queensland Government had no right to give out such a number of tags early on the assumption that I would bow to political pressure later in the year and increase the quota."

This statement gives the Minister's view of the general attitude of the Queensland Government on this aspect of the matter. 80. We note also that item (viii) of the "Management Procedures" as set out in paragraph 76 supra, refers to "the quota" in the singular, and not to particular quotas for particular species. Dr. Kirkpatrick, when asked by the Tribunal whether there were different tags for different species, replied "No". It would appear, therefore, that the management program did not provide for adequate control of the separate culling quotas which had been approved for each species, but only for control of one overall limit on the total numbers of animals which could be taken. The lack of precise description of the tagging procedure in item (viii) leads the reader to assume that, despite the use of the singular, the item was intended to describe the detailed quotas specified in the preceding section of the management program. Dr. Kirkpatrick's evidence makes clear that this is not so, and that in this regard also, the management program as approved was not "a management program that is being carried out". 81. Dr. Kirkpatrick explained that the number of kangaroos taken was in fact controlled by the imposition of quotas on individual fauna dealers, which when added together equalled the total quota approved by the Minister (quota C). Shooters were advised to ensure before going out shooting that they had a dealer prepared to accept the kangaroos which they brought back. There is no mention of this arrangement imposing quotas on fauna dealers in the management program as approved. Dr. Kirkpatrick did not attempt to suggest that item (viii) was intended to convey the meaning that the quota was controlled through dealers. There is no mention of that fact in item (viii) or elsewhere in the management program. It would appear to constitute yet another variation between the program as approved and the program as being carried out in Queensland. The Tribunal has not been directed to any power in the Fauna Conservation Act 1974-1979, or in the regulations made thereunder, which would empower the QNPWS to enforce such an arrangement. 82. To demonstrate the operation of the arrangement, copies of a form of letter which had been sent to dealers on 9 September 1985 were produced to the Tribunal, as the last of the respondents seventy-one exhibits. The letter relating to Red Kangaroos read as follows:

"According to our records of Class A fauna dealer depot returns, the Commonwealth approved harvest quota for red kangaroos has now been reached.

In the absence of any Commonwealth approval for general quota increases, it has been necessary for this Service to recommend a closure of the 1985 open season for red kangaroos.

Executive Council has subsequently approved the recommendation and you are hereby notified to cease buying red kangaroos from licensed shooters as the open season for this species was formally gazetted as closed on 7 September 1985.

This will not affect the overall quota number allocated to you and for the moment you should substitute grey kangaroos for red kangaroos if you have any unused red kangaroo quota as previously allocated. You will be later advised as to your new quota for each species."

An otherwise identical letter referred to Wallaroos in place of Red Kangaroos. The last paragraph of those letters could be read as indicating that the quota allocated to a dealer was essentially, whatever it might appear to be, an overall quota, the quota for particular species being seen as adjustable. Quotas for Grey and Red Kangaroos and for Grey Kangaroos and Wallaroos would appear to be interchangeable by an individual dealer. If so, this would confirm the conclusion already reached by the Tribunal and set out in paragraph 80 supra that the management program actually being carried out provided for the firm implementation of only one overall quota, and did not purport to control the separate species quotas approved by the Minister. 83. Reference has already been made (see paragraph 63(e) supra) to the irrelevance, in 1985, of the open season gazetted for 1984. Searches by the Tribunal in the Queensland Government Gazette have revealed that an open season for the calendar year 1985 in respect of nine species of kangaroos and wallabies (including the five species affected by the management program), for certain specified fauna districts, was declared by Order in Council on 15 November 1984 and published in the Queensland Government Gazette No. 66 page 1248. Like the declaration for 1984, this declaration, in respect of the Whiptail Wallaby, applies to fauna districts 1, 2 and 3 and also to that part of district 4 which is east of longitude 146 degrees East. Item (i) of the management procedures set out in paragraph 76 supra, states "an open season exists in ... districts 1, 2 and 3 for the whiptail wallaby". The part of fauna district 4 which is, in fact, also subject to the Order in Council, has an area of about three hundred thousand square kilometres. This further inconsistency between Exhibit 1 and the management program actually being carried out in Queensland was not apparent from any of the material put before the Tribunal. The Tribunal referred to the Orders in Council only, in the first place, for the purpose of ascertaining whether the gazettal of December 1983 was still in force in 1985. The Orders in Council are public documents available to all (and see paragraph 23 supra). 84. We have already referred to the conflicting aims of conservation, pest control and the maintenance of an industry which must be considered when plans are made for the management of kangaroos; and to the single clear object of the Wildlife Act, namely the protection and conservation of Australian wildlife (see paragraph 33 supra). It was apparent to the Tribunal from the evidence of Dr. Kirkpatrick that, for understandable reasons, pest control and the maintenance of the industry are uppermost in the thinking of the QNPWS. Exhibit 6, in part prepared by Dr. Kirkpatrick, sets out at length the grounds for the view held by that Service that quota B, namely a total of 1,500,000 kangaroos and wallabies of nine different species:

"is both sustainable and necessary to prevent a repetition of the situation that occurred this year (1984) when kangaroo numbers were manifestly large, and when the demands for both their control and for their products existed at a level that had the potential to exceed an unnecessarily low quota."

That quota was not accepted by the ANPWS, which recommended to the Minister, in February 1985, the approval of quota C, totalling 1,080,000 kangaroos and wallabies of five species only. However, the Tribunal is satisfied, on the basis of Dr. Kirkpatrick's concession cited in paragraph 78 supra, that Queensland issued tags in 1985 for at least 1,400,000 animals, a figure approaching quota B. That action permitted, so far as the shooters working in Queensland were concerned, the taking of a larger number of animals than the ANPWS had considered desirable. 85. As to the destination of that larger number of animals (assuming that we accept the evidence that quotas were imposed on fauna dealers in Queensland) it could clearly be inferred from Dr. Kirkpatrick's evidence that, despite item (vii) of the management procedures listed in paragraph 76 supra, there was little real interest in or control of the movement of skins and carcasses interstate, to be exported, for example, through Melbourne. Effectively, it appeared, Queensland was operating its program for the control of kangaroos as pests and for the maintenance of an industry, regardless of the management program which had been approved by the Minister. By restricting its controls to placing quotas on receipts of skins and carcasses by fauna dealers the QNPWS was doing little more than paying lip service to the management program. 86. An article in the Queensland Conservation Council Newsletter, vol. 4 No. 3 for April 1983 (Exhibit 39) states that that body's policy on kangaroos

"supports strictly controlled harvesting with quotas being determined by conservation objectives and not commercial considerations, supported by on-going research and monitoring programs".

In the same article the following passage appears:

"There is also a potential danger that, should a profitable export industry be re-established, the commercial pressures for larger quotas may over-ride the conservation objectives of the Wildlife Service".

On p. 100 of The Kangaroo Keepers, at the conclusion of a chapter entitled "The Kangaroo Industry", of which chapter Dr. Kirkpatrick is the senior author, there appears the statement:

"Because of the constant constraints of both local and international competition with its products, the controlling legislation under which (the kangaroo industry) now operates has not yet been needed to prevent the industry dictating an unallowable level of harvest, and it seems unlikely that this will be necessary, at least in the immediate future".

We do not underestimate the pressures under which the QNPWS must operate. 87. We note further that the information given to the Tribunal at the earlier hearing (see paragraph 19 supra) as to what was actually happening in Queensland was incorrect. It may be that those representatives of the respondent who were present on that occasion were unaware of the true position : it was not a matter necessarily within the knowledge of any person representing the applicant. We can only assume that those officers of the ANPWS, who advised the Minister to approve the variation of the management program in October 1985, were similarly misled, when they proceeded on the assumption that a program incorporating quota C, the figure approved by the Minister in February, 1985, was in fact being carried out in Queensland. There was evidence before the Tribunal that frequent telephone conversations took place between officers of the QNPWS and the ANPWS, and Mr. Miller stated that the QNPWS had advised the ANPWS in August 1985 of their procedure of issuing more tags than the approved quota, and monitoring the quota by imposing quotas on dealers. However, there is no evidence before the Tribunal which would indicate that the ANPWS were aware of the extent of the difference between the approved quota and the number of tags issued. In his proof of evidence Mr. Miller says:

"I understand from discussions with officers of the Service that the Minister was aware that the program was being carried out as a result of discussions he had had with his Queensland colleague, Queensland National Parks and Wildlife Service officers, farmers, graziers and shooters during his visit to Queensland in June 1985."

This statement, apart from being hearsay upon hearsay, does not actually clarify what was the program of which the Minister was supposed to be aware. Perhaps Mr. Miller was concerned to demonstrate that the ANPWS was aware of the scale of the difference between the approved quota and the number of tags issued and of the fact that the quota was monitored by the imposition of quotas on dealers. If the ANPWS was so aware, then it is difficult to see how anyone could have recommended to the Minister in October that he approve a management program in terms of Exhibit 1, with culling levels totalling quota C, as being a management program that was "being carried out" in Queensland. 88. Mr. Miller also said in his proof of evidence (emphasis added):

"14. It is relevant to note that only the Queensland and Western Australian programs refer to a specific quota and in both cases do so in terms of a decision taken previously. The remainder either refer to a mechanism by which an annual quota will be set or levels of harvest regulated. The Service considered the references to a specific quota in the Queensland and Western Australian programs as having been included for public information rather than as an inherent part of the program. In both cases this view is supported by the fact that both programs canvas the mechanism or basis for determining quotas prior to reporting the quota prevailing at the time the program was submitted. It was for this reason that the 1985 quotas were not addressed in the Minute to the Minister of 18 April 1985 seeking his reapproval of the programs. When the Service requested the States to submit progams for approval under the Act it suggested that consideration be given to presentational aspects since the programs would be published.

15. It is the view of the Service that the 1985 kangaroo quotas were not set pursuant to s.10 of the Act by the decision of 19 April 1985. The annual approval of quotas is seen as an administrative mechanism, in the context of s.25 of the Act, whereby the Minister indicates to the public and the kangaroo industry his willingness, where the other three conditions required to enable a permit to be issued are met, to issue export permits for products derived from specimens produced by a culling level of no greater than the quota. In this way the public and the industry is kept informed of his intention in respect of decisions to be made pursuant to s.25 and the industry is able to plan its activities accordingly."

89. We have set out the evidence in the preceding paragraph at length because it demonstrates, on the part of those whose duty it is, as described in paragraph 9 supra, to administer the provisions of the Wildlife Act, a total misapprehension of the effect of those provisions. It would be interesting to know what the ANPWS did consider to be "an inherent part of the program", particularly as the quota was the only material submitted by Queensland which was not accepted by the ANPWS as appropriate for recommendation to the Minister without variation. (The ANPWS did also telex urgently to the QNPWS for the submission of additional material in April 1984 as described in paragraph 48 supra but that material was in addition to, not in substitution for, that already submitted from Queensland.) 90. Whether or not a management program should include a culling quota is a question which was raised before the Tribunal, but which is certainly not in issue here. Three management programs for kangaroos in Queensland have been approved under the Wildlife Act, one by the Acting Minister on 19 April 1984, one by the Minister on 27 April 1985 and the one with which we are concerned, by the Minister on 16 October 1985. Each of those management programs has included a culling quota, which is clearly regarded by all concerned as the most important component of the program. To suggest that the Tribunal might accept that that culling quota is not "an inherent part of the program", after seven days of evidence, much of which was devoted to consideration of matters related to appropriate culling levels, is, to put it as its lowest, disingenuous. 91. Miss Ward submitted that because the quota contained in Exhibit 1 was described as "the 1984 quota", Exhibit 1, when approved in April as the management program for 1985, included no quota; the figures were, so far as 1985 was concerned, merely a matter of "historical reporting". This submission cannot be accepted. It ignores the fact that other parts of Exhibit 1 also relate very specifically to 1984; notably the listing of "management procedures" on page 11, without which the document could hardly be said to be a "management program". Counsel did not suggest that those parts should be notionally deleted from Exhibit 1. The submission does, of course, highlight the problem which arises when a document prepared for one purpose (in this case, for 1984) is adopted for another purpose (in this case, for 1985) without careful thought being given to the implications of that action. 92. One aspect of the quota figures which was not discussed at all at the hearing was the period in respect of which the quota was intended to operate. The Director said in his undated memorandum to the Minister, extracted in paragraph 53 supra, which was approved on 14 February 1985, "The 1985 quota proposed for Queensland (quota C) is greater by 235,000 than the 1984 quota (quota A)". Quota A, however, although described as "the 1984 quota" was contained in a management program approved in respect of the year commencing on 1 May (or 19 April, see paragraph 49 supra) 1984. No doubt quota A was intended by QNPWS as a quota for the calendar year 1984; and quota B, when put forward by QNPWS in Exhibit 6, intended as a quota for the calendar year 1985. When the Director recommended on or about February 1985 that quota C, as a reduction on quota B, be approved for 1985, he clearly overlooked the fact that the 1984 management program, incorporating the 1984 quota, was still in operation, and would remain in operation until 30 (or 18) April, and thus the period of the two quotas would overlap. This oversight is consistent with the assumption described in paragraph 51 supra that nothing had really changed with the introduction of the Wildlife Act: the traditional approval of the annual quota was seen as the important and effective procedure, and the approval of the management program pursuant to the Wildlife Act as more than a piece of formal machinery. 93. When quota C was formally approved in October 1985, however, it was approved as part of a management program intended to operate only for the eight months period 1 May 1985 to 31 December 1985 (see the two gazettals set out in paragraphs 14 and 19 supra, and paragraph 8 of the memorandum cited in paragraph 55 supra). One might have expected a proportional reduction in the figure contained in the October gazettal. However, no such reduction was made, and the quotas in the October gazettal are expressed to be "in respect of the year 1985". It would appear that at no stage of the sequence of events beginning with the submission of the Queensland management program for 1984 (see paragraph 35 supra) and ending with the second hearing before this Tribunal was any consideration given to the possible effects of the inconsistency between the periods over which the several quotas were intended to operate, and the periods for which the management programs in which they were incorporated were approved. Had the management program included a precise and detailed statement of the manner in which the quota was controlled, instead of item (viii) of the "Management Procedures" (see paragraphs 76 to 81 supra), the position might have been made clear. As it is, we are in considerable doubt as to the total number of Queensland kangaroos taken in the calendar years 1984 and 1985 in respect of which export permits might have been legally granted under the management programs as approved. The two quotas which were purported to be approved were, for 1984, the quota submitted by the QNPWS for the calendar year 1984 and, for 1985, the quota which was reduced by the ANPWS from Queensland's submission for the calendar year 1985, but clearly intended by the ANPWS to operate for a calendar year. Those two quotas, prepared in respect of two calendar years, were approved in succession, for two periods which, combined, extended only from 1 May 1984 to 31 December 1985; a period of nineteen months, not two years. 94. The Wildlife Act provides, in the manner set out in paragraphs 5-8 of these Reasons, that export permits for products derived from native Australian animals may only be granted where the animals were taken in accordance with "an approved management program", being a program which is being, is proposed to be or has been carried out, and which has been prepared and approved in accordance with the Wildlife Act and the Regulations. The Wildlife Act goes on to provide for review of that approval by this Tribunal. As the Director pointed out to the QNPWS in his letter of 15 August 1983, cited in paragraph 44 supra, that provision for review enables a public assessment, of the kind which has taken place in these proceedings, of the basis upon which export of Australian native fauna and flora is permitted. If the management program which is approved and published turns out to be different from the management program which is being implemented, then that provision for review will necessarily be rendered nugatory. 95. In the present case a number of significant discrepancies between the management program as approved and published, and the management program actually being carried out in Queensland, manifested themselves only towards and after the conclusion of the hearing. It was only from the cross-examination of Dr. Kirkpatrick that it became apparent to the Tribunal that

(a) the number of tags issued to shooters in Queensland in 1985 was substantially higher than the quota which was approved (see paragraph 79A supra); and

(b) the program is being controlled by the provision of quotas for dealers, not, as implied in the management program, by the issue to shooters of tags to the total of the approved quota (see paragraph 81 supra).

On relating the management program as approved to the Fauna Conservation Regulations in the light of the answer given by Dr. Kirkpatrick to a question from the Tribunal, and on reading the last exhibit to be produced, it became apparent to the Tribunal that

(c) Queensland was effectively administering only one overall quota, and did not exercise effective control to separate the species quotas which had been approved (see paragraphs 80 and 82 supra).

Only when, after the hearing, reference was made to the Orders in Council for a different purpose did it become apparent to the Tribunal that

(d) an open season had been declared for the Whiptail Wallaby in 1985 over a substantially larger area than stated in the management program (see paragraph 83 supra).

There may well be other discrepancies which have not come to the notice of the Tribunal, between the program approved by the Minister and the program as carried out in Queensland in 1985. 96. In any case, even the discrepancies recorded above are such that we have been forced to the conclusion that the management program which was approved by the Minister on 16 October 1985 and gazetted on 30 October 1985 was not the management program which was being carried out in Queensland at that date. Nor was it a program which was "proposed to be carried out": Queensland had no intention of carrying it out in either its original form or its amended form after the inclusion of quota C. Finally, for completeness, that it was, as we have said, clearly not a program which had been carried out. Thus it fell within none of the three heads of management program which Section 10 empowers the Minister to approve. That being so, the Minister had no power to approve it, and his purported approval was ineffective. The decision under review will be set aside because it was made beyond power. (See the decision of the Tribunal constituted by its then President, Brennan J, in Re Brian Lawlor Automotive Pty. Ltd. and Collector of Customs New South Wales (1978) 1 ALD 167) at 182 upheld by the Full Court of the Federal Court sub.tit. Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty. Ltd. (1979) 2 ALD 1). 97. Sub-section 43(1) of the AAT Act reads:

"43.(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a) affirming the decision under review;

(b) varying the decision under review; or

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsider- ation in accordance with any directions or recommendations of the Tribunal."

That provision requires the Tribunal, having set aside a decision, either to make a decision in substitution therefor, or to remit the matter for reconsideration in accordance with directions or recommendations. The Tribunal recognises that the conclusion which it has reached will give rise to significant problems in the export of kangaroo products derived from animals taken during the period when the 1985 management program for kangaroos in Queensland was assumed to be in operation. Two possibilities suggest themselves, both of which we recommend to the attention of the Minister. 98. Firstly, the Minister may consider it appropriate to exercise the power given to him by sub-section 44(1) of the Wildlife Act, which provides that

"Where -

(a) the Minister is considering an application by a person for a permit or an authority to export or to import a specimen;

(b) under this Act, the Minister is precluded from granting that permit or giving that authority unless the Designated Authority has advised him that he is satisfied in relation to a matter; and

(c) the Designated Authority has advised the Minister that, though he is not satisfied in relation to that matter, he is satisfied that -

(i) the export or import of the specimen, as the case may be, would not be contrary to the object of this Act; and

(ii) exceptional circumstances exist that justify the proposed export or import of the specimen, ..."

and public notice has been given and the response to any such notice considered in accordance with the section, the Minister may give an authority to export the specimen. It will be apparent from the terms of Section 44 that this solution is not without its problems. 99. Alternatively, the Minister may rely on his power under sub-section 10(1) of the Wildlife Act to approve a management program which "has been carried out". The exercise of that power would depend on the Minister's being able to ascertain what was the management program which was actually carried out in Queensland between 1 May and 31 December 1985 and to approve it retrospectively. This course might involve difficulties because of the need for the Minister to be satisfied, in relation to that management program, of the matters prescribed by Regulation 5(1). Retrospective amendment of a management program which has been carried out is, of course, not possible. 100. Whichever course is adopted, there will be an inevitable delay before it is possible to validate the export of kangaroo products originating from Queensland during the period from 1 May 1985 to 31 December 1985. Counsel for the respondent submitted that if the Tribunal were to decide to set aside the management program, it should delay the implementation of that decision so as to enable appropriate arrangements to be made. However, in view of our finding that the declaration under review was made beyond power, any exercise of the Tribunal's power pursuant to sub-section 43(5B) AAT Act to specify that our decision is not to come into operation until a later date would, itself, be of no effect: it is not the decision of the Tribunal which renders the declaration under review ineffective, but the fact that the management program which the Minister purported to approve was not the management program which was being carried out in Queensland. 101. The Tribunal has power, under sub-paragraph 43(i)(c)(ii) of the AAT Act to give precise directions or recommendations as to the manner of reconsideration by the respondent of the decision under review. It is a power which is frequently exercised. However, in view of the history of events and the difficulties which are apparent to us, we have reached the conclusion that it is inappropriate in this case for us to exercise that power. We propose to recommend merely that the matters be remitted to the respondent for reconsideration in accordance with paragraphs 97-99 inclusive of these Reasons for Decision. 102. We regret having reached this decision on grounds unrelated to the matters principally argued before us. We are well aware that all parties were concerned that we should decide this matter on the basis of the merits of the management program. It was because of that concern of the parties that the Tribunal, at the earlier hearing, considered that it was inappropriate for it to proceed to consider the management program which had been approved in April 1985 containing quota A, a figure which was not the figure the parties had come prepared to argue. As Mr. Prineas, who appeared for the applicant, said at the earlier hearing, the applicant is concerned with the merits of the management program for kangaroos in Queensland, not with legal technicalities. 103. However, we trust that our decision will have the effect that in future both Commonwealth and State authorities will take more care to ensure that the Wildlife Act is implemented in accordance with its provisions, and in a manner which is therefore likely to achieve its objects. In his Second Reading Speech in the House of Representatives on 6 May, 1982, on the introduction of the Bill for the Wildlife Act (here quoted in a context unrelated to the interpretation of that Act) the then Minister said:

"The purpose of this Bill is to strengthen arrangements for the protection of Australia's animals and plants and world wildlife generally, by improving the effectiveness of our import and export controls."

It is of little use for Australia to point proudly to legislation on the statute book intended to have that effect, if the controls imposed by the legislation are not implemented according to their tenor, with the result that the arrangements for protection of wildlife are in fact not strengthened at all. If the making by the applicant of the present application for review results in the effective implementation of the Wildlife Act in the future, then the applicant may well feel satisfied with the achievement of bringing to public notice the defects in the administration of the Wildlife Act to date, at least in the context of Queensland kangaroos. 104. It may be that there is an underlying assumption that the real significance of the Wildlife Act lies in its mere existence: that once it had been passed, and could be pointed to as an indication of Australia's concern for the conservation of the fauna and flora, everything else would go on as before: and that those people, in Australia and overseas, for whom the conservation of native animals and plants is a matter of prime importance, would be satisfied by the passage of the legislation. If that assumption exists, the very bringing of this application for review should be sufficient to dispel it (and see paragraph 132 infra).

Participation of Ministers of the Crown of the States and the Northern Territory

105. There is one other aspect of the legislation which, as it has come to our attention in the course of these proceedings, we think it is appropriate that we should mention. The text of paragraph 78(1)(a) of the Wildlife Act is set out in paragraph 11 supra. Somewhat surprisingly, this provision was not referred to at either hearing. The management program under review undeniably falls within the category "management programs for the purposes of this Act relating to the taking in or near Australia ... of specimens of native Australian animals ...". No evidence was before the Tribunal to suggest that the management program had been "formulated or determined, as the case requires, in accordance with procedures that provide for the participation of a Minister of the Crown of each State and a Minister of the Northern Territory", although we note the suggestion by the Director to the Minister quoted in paragraph 53 supra that he "discuss Queensland's reservations with the Queensland Minister". In that memorandum the Director made no reference to the Minister's obligations under section 78. We have no evidence which would suggest that the program was, in fact, formulated in accordance with any such procedures. 106. It may have been considered that the statement in the management program that the aims of kangaroo management in Queensland were "in accordance with the National Plan of Management for Kangaroos" indicated a sufficient compliance with paragraph 78(1)(a), on the ground that the National Plan is a document approved by CONCOM, the Council of Nature Conservation Ministers constituted as described in paragraphs 40and 41 supra. However, the National Plan of Management for Kangaroos was not approved by CONCOM until May 1985, when it replaced the National Kangaroo Management Program, and the printed management program bears the date "March 1984". Thus, when it was prepared, and when it was approved for 1984, the National Plan of Management for Kangaroos did not exist. In any case, even if the dates were revised, that compliance by the Queensland management program with the National Plan does not appear to us to involve "participation" by the State and Territory Ministers in the formulation of the management program. 107. We do not know what was the intended purpose of paragraph 78(1)(a), or how it was intended to operate, unless perhaps by a procedure requiring every management program to be separately approved by CONCOM. The provision is a measure of the significance which Parliament placed on the procedures to be established for the formulation of management programs. We see considerable difficulties in implementing it effectively. In view of the conclusions which we have already reached as to the invalidity of management program it is not necessary for us to decide whether the requirement of participation by Ministers is mandatory, so that non-compliance with paragraph 78(1)(a) would of itself invalidate the program. We merely draw attention to the existence of the provision, to the difficulties that it presents, and to the fact that, it appears to have been virtually ignored by all concerned.

III. THE SUBSTANCE OF THE MANAGEMENT PROGRAM

The Species

108. Having reached our decision for the reasons stated, we nevertheless consider that in view of the time and effort devoted at the hearing by both parties to the substantive merits of the management program, it is appropriate that we should examine, at least in part, the issues which the parties wished to, and did, debate before us. The five species which are dealt with in the management program under review are the Red Kangaroo Macropus rufus, the Eastern Grey Kangaroo M. giganteus, the Western Grey Kangaroo M. fuliginosus, the Wallaroo M. robustus and the Whiptail Wallaby M. parryi. Their approximate present distribution in Queensland is shown in figures 1-4, indicating the areas in which, given suitable habitat, each species may be found. All except the Whiptail Wallaby, the range of which extends only into a small part of northern New South Wales, are found over extensive areas of mainland Australia outside Queensland. 109. The grey kangaroo was considered to be one species until as recently as 1972 (Kirsch & Poole (1972) 20 Australian Journal of Zoology 315) but is now recognised as constituting two distinct species with a distribution which, in Queensland, overlaps as indicated on figure 3. The presence of the Western Grey in southern Queensland was recorded in 1982 based on unpublished evidence, but as a "negligible component of the fauna" (Caughley & Grigg (1982), 9 Australian Wildlife Research 365: Exhibit 32). A more formal record was published in 1984 (Caughley et al. (1984) 10 Australian Wildlife Research 1: Exhibit 30) describing the distribution of the species over an area of 100,000 square kilometres (see Figure 6, p.6 Exhibit 30). The authors suggest that "the geographic variation in relative density reported here for M. fuliginosus need not be much different from what it was a century ago". The report states that the two species are difficult to distinguish from the air, though easily distinguished when close at hand. In the field they can be identified separately at up to 100 metres in good light (300 metres with binoculars).

The Regulation

110. To recapitulate, Section 10 of the Wildlife Act provides that "the Minister shall not declare a management program to be an approved management program unless he is satisfied of certain matters in relation to the program." those matters are prescribed by Regulation 5(1) of the regulations, and the relevant matters for the purposes of this application for review are:

"(a) that there is available to the Designated Authority sufficient information concerning the biology of each species subject to the management program, and the role of that species in the ecosystems in which it occurs, to enable the Designated Authority to evaluate a management program for that species;

(b) that -

(i) (as to imports)

See hard copy for diagram

(i) will not be detrimental to the survival of the species or sub-species to which that specimen belongs; and

(d) after receiving and considering advice from the Designated Authority - that the management program provides for adequate periodic monitoring and assessment of the effects of the taking of specimens under that management program on the species or sub-species to which those specimens belong, their habitat and such other species or sub-species as are specified in writing by the Designated Authority as likely to be affected by that taking."

111. We are satisfied, on the evidence before us, that "discussions" within the undemanding meaning of sub-paragraph (b) (ii) have taken place, and we do not propose to consider that aspect of the matter further.

Initial Submissions of the Applicant

112. The applicant's principal submission was that the management program should be set aside on the grounds that the Minister was not, or should not have been, satisfied as to the matters prescribed by Regulation 5(1). Specifically the applicant submitted (to repeat, in effect, what is set out in paragraph 12 supra) that the management program was deficient in the following respects:

(i) there was insufficient information available in terms of Regulation 5(1)(a) concerning the biology of the Whiptail Wallaby and its role in the ecosystem in which it occurs.

(ii) the inclusion of the Western Grey Kangaroo with the Eastern Grey Kangaroo in the same quota allowed uninformed exploitation of the former species, which was inconsistent with the requirements of Regulation 5(1)(c)(i) relating to the survival of the species.

(iv) there was insufficient provision for monitoring and assessment of the effects of the culling in respect of any of the species, contrary to the requirement of Regulation 5(1)(d).

113. In his closing address, counsel for the applicant proposed that the Tribunal should set aside the Minister's declaration and make recommendations to the Minister as to the 1985 and 1986 management programs for kangaroos in Queensland. In addition to specifying harvest levels, he submitted, such a recommendation should record matters which ought to be required to be included in the Management Plan before the Minister's approval is given to that Plan. This submission is dealt with in paragraph 133 and following infra.

Information as to the Whiptail Wallaby

114. As to the applicant's submission numbered (i) above, it was not in issue that less is known about the Whiptail Wallaby than about the other species subject to the management program. Comparatively few published papers deal with any aspect of its biology, or its role in the ecosystem in which it occurs. Dr. Southwell has experience of counting Whiptails and has a paper on that work ready to submit for publication. It became apparent from Dr. Kirkpatrick's evidence that officers of the QNPWS were developing information on the ageing and sexing of this species sufficient to enable them to determine the age and sex of dead animals, and the information is being prepared for publication. The ability to age and sex the individuals which are killed is fundamental to any monitoring of a culling program. It was clear from the evidence, including that of Dr. Southwell, who has extensive experience of the species in its habitat, that the stronghold of the Whiptail Wallaby is in steep, rocky country accessible to humans only on foot; and that in that country the animals are present in large numbers. It was also clear from the evidence of Dr. Kirkpatrick and of Mr. Houen of the Queensland Graingrowers Association, that Whiptails are a major pest to farmers with properties adjacent to that habitat. Accordingly they have been shot as pests in large numbers for many years. 115. The "Designated Authority" for the purpose of the legislation is, as explained in paragraph 9 supra, the Director of the ANPWS. Dr. Southwell is an officer of the ANPWS, so that his unpublished work is available to the Director. Similarly Dr. Kirkpatrick stated in evidence that the unpublished work of the QNPWS was available to the ANPWS, and thus to the Director. 116. Regulation 5(1)(a) requires that there be "available to the Designated Authority sufficient information ... to enable the Designated Authority to evaluate a management program" for the species. Whatever "sufficient information" may mean in that context, it does not mean "sufficient information to enable the preparation of a management program" for the species. Assume a species which has been described from a single individual, and which is known to inhabit the Great Victoria Desert, but as to which nothing else at all is known. A management program, which provides for culling, is proposed for that species. The Director, as Designated Authority, may well, in evaluating that management program, take into account the insufficiency of the information available as to the biology of the species concerned and its role in the ecosystem in which it occurs, and decide that, because of that insufficiency, no management program which provides for the culling of that species should be approved. Almost no information is available about the species : but he is still able to evaluate the management program. He has, in effect, decided as a result of his evaluation, that there is insufficient information available to enable the preparation of such a management program. But that is not the question directly posed by the requirement in Regulation 5(1)(a). 117. On the basis of the material contained in the preceding paragraphs, the Tribunal finds that there is sufficient information available to the Designated Authority concerning the biology of the Whiptail Wallaby and its role in the ecosystem in which it occurs to enable him to evaluate a management program for that species as required by Regulation 5(1)(a).

Inclusion of the Two Grey Kangaroos in the Same Quota

118. We turn now to consider the applicant's submission numbered (ii) in paragraph 112 supra. Figure 3 indicates the area of Queensland in which the two species of grey kangaroo have been confirmed, comparatively recently, to be co-existing, as described in paragraph 109 supra. It was clear from the evidence that the two species are difficult to distinguish in the field. It is likely that the proportion of Western to Eastern Greys in the overlap zone is approximately 1 to 12. Both species are widespread outside Queensland. There was no evidence to suggest that the population of the Western Grey Kangaroo which is found in Queensland is thought likely to constitute a separate sub-species of the Western Grey. Dr. Denny's evidence was that the biology of the species in Queensland is almost unknown, but he agreed under cross-examination that he had no reason to suppose that it differed from the biology of the species elsewhere in Australia. There was some evidence that shooters discriminated against Western Greys, despite the difficulties of identification; it was also suggested in evidence that the dictates of fashion could in the future result in shooters preferring Western Greys. 119. The Tribunal noted with considerable concern that the culling quota for grey kangaroos as appearing in the management program as approved in October 1985, like that appearing in the 1984 program, did not separate the quotas for Eastern and Western Greys, even though these are different and separate species. The reasons were stated in exhibits and oral evidence to be partly historical, because the separate identity of the two species was confirmed relatively recently, and partly practical, because of the difficulty of identifying the two species separately in the field. The Western Grey, in the zone where the two species co-exist, is present in considerably smaller numbers than the Eastern Grey. The Tribunal considered that a management program in which the quotas for two species were expressly combined was not capable of being evaluated by the Designated Authority in such a way as to enable the Designated Authority to give to the Minister, in respect of the Western Grey, the advice required to be given by Regulation 5(1)(c) and (d). Those provisions are concerned with the survival of species as such; and the combination of two species under one culling quota ignores the overriding importance given to that matter by the Regulations. 120. In this context Section 25 of the Wildlife Act, set out in paragraph 11 supra, is of considerable significance; the Regulations have clearly been enacted with a view to assisting in the implementation of that provision. The legislation is concerned with species, and there is no escape from a responsibility to identify separate species, despite the difficulties set out in paragraph 109 supra. 121. On this point we accept the submission of Mr. Prineas, for the applicant, that the Regulations must be read as relating to the species in respect of the area in which the management program is to operate. If that were not so, a species with a range extending across several States might well become extinct as a result of each State's implementing a management program prepared on the assumption that the species was secure in the other States. 122. Accordingly, the Tribunal finds that, in view of the combination of the two grey kangaroo species in one quota in the text of the management program, the management program does not contain measures to ensure that the taking in the wild, under the management program, of any specimen of the Western Grey Kangaroo will accord with the requirements of Regulation 5(1)(c).

Lack of Enforcement of Separate Quotas

123. This discussion as to the grey kangaroos has been conducted, as it was argued by the parties, on the basis that the separate culling quotas prescribed in the management program for the several species concerned were in fact being enforced in Queensland. It has since the hearing become apparent to the Tribunal, as explained in paragraph 80 supra, that this is not the case. It will be clear from this discussion that the discovery that those separate culling quotas were not being enforced in Queensland leads the Tribunal inevitably to conclude that, on that ground, the management program fails to meet the requirements of Regulation 5(1)(c) in respect of all five species.

Measures to Ensure the Survival of the Species Monitoring and Assessment

124. Much of the argument at the hearing on the applicant's submissions (numbered (iii) and (iv) in paragraph 112supra) as to whether the management program complied with the requirements of Regulation 5(1)(c) and (d) turned on questions relating to:

(a) the effectiveness of aerial surveys as a method of counting those species which are more widespread;

(b) whether absolute numbers of kangaroos were required for the monitoring and assessment of the effects of the culling, or whether measures of relative abundance would suffice; and

(c) whether the quotas set out in the management program as approved in October 1985 were adequate to ensure compliance with Regulation 5(1)(c).

In view of the fact that those quotas were not, in fact, being enforced in the management program being carried out in Queensland, the Tribunal does not propose to consider these questions further in so far as they relate to the more numerous and widespread species. However there are separate considerations in respect of the Whiptail Wallaby, to which we should refer. 125. As to the Whiptail Wallaby, the opinion of the respondent's witnesses was, that the species is so abundant in its habitat that the shooting of those individuals which manifest themselves on farmland would have no effect on the population. The Tribunal notes, however, Dr. Southwell's first-hand evidence as to the difficulty of access of their habitat, and the resultant difficulty and expense of ascertaining the number or status of the population at any given time. We accept the evidence that, in that habitat, counting of animals by aerial survey is neither appropriate nor effective. That being so, there appears to us to be a possibility that for some reason such as disease or significant change in the degree of predation, the number of Whiptails in their relatively inaccessible habitat might fall substantially, while extensive culling was still taking place on farmland, in the absence of any knowledge of what was happening in that inaccessible habitat, or of the relationship between the animals seen on the farmland and the core population. In those circumstances, there would seem to us to be a real possibility that the survival of the species might be endangered. As has been said, most of the habitat of the Whiptail Wallaby lies within Queensland. We consider, therefore, that even taking account of the work now being done on ageing and sexing, the management program:

(a) does not contain measures to ensure that the taking in the wild, under that management program, of any Whiptail Wallaby specimen will not be detrimental to the survival of the species in terms of Regulation 5(1)(c)(i) or that it will comply with Regulation 5(1)(c)(ii); and

(b) does not provide for adequate periodic monitoring and assessment of the effects of taking Whiptail Wallabies, as required by Regulation 5(1)(d).

The Effect of Non-Compliance with Regulation 5(1) 126. Accordingly, had we not already found that there was, in fact, no valid management program for kangaroos in Queensland in 1985, and assuming that the management program in the form in which it was approved by the Minister was that which we were required to consider, we would have had no alternative but to set aside that management program on either of the grounds set out in paragraphs 122 and 125 supra. For the reasons set out in paragraphs 68 and following supra, it is not possible except in the case of a program "proposed to be carried out" to sever from the management program those portions which do not comply with the Regulation and set aside the management program in respect of those portions alone. The decision to approve a management program which is being carried out, is a decision to approve it as a whole: if that decision is to be set aside, it is to be set aside as a whole.

Regulation 5(1) Generally

126. As the hearing progressed, the Tribunal became more and more convinced that the terms of the Wildlife Act and of the Regulations needed to be interpreted in a manner which allows for a degree of reasonableness as to the extent and depth of knowledge needed as a prerequisite for a management program. Regulation 5 rests on the Minister being "satisfied" about a number of different matters, and this leaves a broad discretion in his hands. 127. Perfect knowledge is an unattainable ideal and it is a matter of fine judgment based on experience and professional insight to enable a Minister to be satisfied that the Designated Authority has sufficient knowledge to evaluate a management program. Similarly it must remain a matter of judgment to assess what measures will not be detrimental to the survival of the species or may be carried out at minimum risk to its role in the ecosystem. Clearly, for example, there is more information available about the Eastern Grey Kangaroo in Queensland than about the Western Grey, but this alone does not establish that inadequate information exists for the Western Grey. Furthermore, experienced scientists and wildlife managers can make use of information about the same species in different environments, or different species in similar environments, which, when properly interpreted, is a useful adjunct to or component of knowledge about the species in the environment in question. Better that than nothing, granted the need to keep collecting data, not all of which is published. 128. The state of knowledge needs to be interpreted within a time sequence which takes account of the administrative experience, research programs and observations or field experience (including the observations and experience of landholders) which is available in respect of the species in question. In the particular case of kangaroos, it could be argued that information about measures taken with respect to dingoes, including the effects of seasons and of control measures, are significant factors in preserving the role of the kangaroo species in the ecosystem, or even of preserving the species themselves. Yet relatively little was made of this significant factor by any of the parties in this case, although it was referred to by Mr. Houen of the Queensland Graingrowers Association. Similarly, little attention was paid to economic aspects of the management program in terms of costs of control measures including harvesting, damage to crops and improvements and the effects of variations in the prices of meat and of skins and their acceptability in domestic and overseas markets. Yet it could be validly argued, as it may well be in the future, that knowledge of each of these components is essential as a basis for monitoring the management program. The information which is available needs to be assessed in the context of the time and the stage of development of knowledge by management authorities responsible for the administration of legislation. 129. The Tribunal heard much evidence relating to the adequacy of monitoring relative population changes on the one hand, compared with measuring the population as a whole and monitoring absolute changes in numbers. The Tribunal does not consider the evidence clearly established one or other of the polarised opposing views on this issue in relation to the position in Queensland, and is content to leave the matter to be resolved in the fullness of time. Meanwhile, in the context of priorities for research programs, studies of methods of population assessment remain a high priority. We note the statement by the United States Department of the Interior Fish and Wildlife Service, inviting comments on proposed findings as to guidelines for the issue of export permits for American Alligators, which animals are listed in Appendix II of CITES. The guidelines, which are published in the Federal Register Vol. 48 No. 161 of August 18, 1983 (Exhibit 18) read as follows:

"A. Minimum requirements for biological information:

(1) Information on the condition of the population, including trends (the method of determination to be a matter of state choice) and population estimates where such information is available.

(2) Information on total harvest of the species.

(3) Information on distribution of harvest.

(4) Habitat evaluation.

B. Minimum requirements for a management program:

(1) There should be a controlled harvest, methods and seasons to be a matter of state choice.

(2) All skins should be registered and marked.

(3) Harvest level objectives should be determined annually by the states.

In applying these guidelines, the Service considers the following types of information on the condition of populations: (a) A current estimate (if such information is available) of the total number of animals in the preharvest population derived by extrapolating the number of animals per unit area in each of the major habitat types to obtain an estimate of the total number of animals in the state, where the number of animals per unit area is determined by direct count, by indirect indications of abundance, or by population modelling; (b) a description of ongoing research being conducted to assess the distribution, abundance, or general condition of the species in the state, summarizing results so far obtained, including results of any analyses of age structure or reproductive parameters, and (c) an assessment of long-term population trends of the species in the state, and the relationship of these trends to habitat condition, management practices, harvest pressure, and/or other factors."

130. The Tribunal anticipates that, in the present state of knowledge, judgments about the best method or methods of monitoring populations will almost inevitably differ from State to State and as between Commonwealth and States, as it now does with respect to aerial surveys as a basis for population counts. Regulation 5 specifies that the Designated Authority shall hold discussions with the relevant body having powers under any law of the State; it does not provide for imposing a viewpoint but for giving advice by the Designated Authority to the Minister, and there are many precedents in the administration of Commonwealth/State schemes for advice to Commonwealth Ministers which allows for differences in viewpoints or in local circumstances as between different States. If this hearing has done nothing else, it has made patently clear that in a federation of States, at a particular stage of evolving knowledge which is still early in biological terms, space should exist for different management programs, each of which is based on different judgments about the interpretation of the knowledge which is the basis for the management program. 131. Thus in the interpretation of the Wildlife Act, as a new piece of legislation involving co-operation between the Commonwealth and the States, there is an element of timeliness by which the stage of development of knowledge needs to be assessed. At any one time the level of knowledge about different species, and about different aspects of each individual species, varies significantly and only time itself will enable a more balanced understanding of the total characteristics of each species to be assessed. The management program on the one hand needs to rest on a degree of uncertainty and imperfect knowledge, and on the other hand, point the way to those gaps in knowledge which can be filled with best effect in improving the management program. In this respect, the Tribunal considers the mere existence of the Wildlife Act and of the management system conducted under Regulation 5 gives a degree of choice of action and options which may have been unwise before these arrangements were made, simply because the Act enables controls and corrections to be invoked before irreparable or irreversible change occurs. (And see paragraph 104 supra.)

The Applicant's Final Submission

132. At the conclusion of the hearing, Mr. Prineas submitted that, should the Tribunal decide to set aside the management program, it should make recommendations to the Minister as to the content of the 1985 and 1986 management programs for kangaroos in Queensland. In his written submission, Mr. Prineas, at the request of the Tribunal, set out in some detail his client's views as to what those recommendations should contain. 133. In that context, Miss Ward argued that, as the Tribunal was reviewing only the 1985 management program, the content of the 1986 management program was not its concern. We accept that, in formal terms, that argument is clearly correct. However, we should point out that the practice of approving management programs annually, with that approval being given during the year in respect of which the program is operating, effectively negates the power of review of a management program which Parliament has given to the Tribunal in sub-section 80(1) of the Wildlife Act. The preparation, hearing and determination within the year of an application for review, will leave little or no time for any effective variation of the management program should that be decided upon by the Tribunal. 134. Mr. Prineas emphasised that his client was concerned at the general thrust of the management program. The methods adopted originally for pest control have led (as set out in paragraphs 33 and following supra) to the establishment of an industry. The program as written should emphasise far more strongly than it does that the rationale for the killing of kangaroos is the control of pests, not the maintenance of the industry. If there is a choice to be made, between the welfare of the kangaroo harvesting industry and the welfare of the population of kangaroos, he submitted, then the welfare of the kangaroos should prevail. If, however, there is a choice between other land uses such as agriculture and the welfare of kangaroos, then there are circumstances where the claims of agriculture may need to be considered more strongly. 135. The Tribunal notes that this submission is consistent with the view of the Minister, strongly expressed in his speech at Charleville which is quoted in paragraph 34 supra. The Tribunal has already set out, in paragraphs 84 to 86 supra, its view of the pressures operating on the QNPWS in that regard. 136. Miss Ward submitted that none of the species which are the subject of the management program is endangered, and therefore the program needs to contain less tight controls than would be the case with endangered species. This is no doubt so. However, one result of the legislation should surely be to ensure that no abundant Australian species becomes endangered: and management programs must be prepared to be administered with this consideration in mind. 137. As to the applicant's specific recommendations, we consider that, as the Presiding Member said at the hearing, it is desirable that an applicant for review of a decision to approve a management program under Section 10 should set out in a constructive manner, as was done here, its own views as to what is appropriate to substitute for that management program should it be set aside. Those views may properly be taken into account by those whose duty it is repectively to prepare, recommend and approve a management program in substitution for that set aside, or a future management program. This is not the duty of this Tribunal. In this context we would, with respect, agree with the President, Davies J, and Mr. Sinclair, who said in the case of Re Evans and Secretary to the Department of Primary Industry (decided on 18 December 1985):

"It is not the function of the Administrative Appeals Tribunal, which is a review Tribunal, to attempt to enunciate a management policy for the Bass Strait scallop fishery. That is a matter which can only be done by the Minister for Primary Industry after consultation with Ministers of Victoria and of Tasmania and after consultation with the departmental officers and with industry. It is wrong for a review tribunal to attempt to determine what it might have done had it stood in the place of the Minister for Primary Industry or what it would like the Minister for Primary Industry to do in the future. Such a function would be inconsistent with its function as a review authority, that is to say, a body whose duty it is to come to a decision having regard to the law as it stands and the facts which have occurred."

Accordingly, apart from the matters expressly referred to in these Reasons, we have not considered it appropriate to record aspects of management policy which our decision implies should now be faced by the parties involved.

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