Animal Lib v Conservator of Flora and Fauna

Citation – Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35

Tribunal – ACT Civil and Administrative Tribunal
Tribunal members – Mr G. Lunney SC – Senior Member (Presiding), Mr A. Davey – Senior Member, Mr P. Conway – Member
Date of Orders – 11 June 2014

FACTS OF THE CASE

Earlier this year, the ACT Government announced its annual kangaroo cull would go ahead for the sixth consecutive year, authorising the killing of approximately 1,606 eastern grey kangaroos in eight nature reserves across the territory.

Under the Nature Conservation Act 1980 (the Act) it is an offence to kill kangaroos in the ACT1 except where an individual holds a licence issued by the ACT Government pursuant to section 104 of the Act.

Animal Liberation ACT (the Applicant), represented by the Animal Defenders Office (ADO), made an application to review the decision made by the Conservator of Flora and Fauna (the Respondent) pursuant to section 104(1)(a) to issue cull licences.

On 14 May 2014, the Applicant successfully obtained an injunction suspending the cull until the matter could be heard by the full bench of the ACT Civil and Administrative Tribunal (ACTCAT).2 The hearing commenced on 3 June 2014 and concluded on 6 June 2014.

Last year the Australian Society for Kangaroos also challenged the decision to cull 1455 kangaroos in nominated reserves. Their challenge was rejected, however, the quota of kangaroos to be killed was reduced. Read more about that case here.

ANIMAL LIBERATION ACT’S ARGUMENT

In this year’s hearing, the Applicant argued that eastern grey kangaroos did not need to be killed to prevent overgrazing, or to meet the certain objectives of the Nature Conservation Strategy. It further stated that there is no, or insufficient, evidence to support such a decision, and/or that the evidence which was being used was inaccurate.

In questioning the scientific basis of the cull, the Applicant questioned the credibility of the Respondent’s expert witness, Dr Fletcher of the Environment and Sustainable Development Directorate. The Applicant claimed that Dr Fletcher’s evidence, which outlined the scientific basis upon which the Respondent issued cull licences, was unreliable on the grounds of a perceived conflict of interest.

Expert scientific evidence was submitted by the Applicant, demonstrating that, in addition to the quota set by the ACT Government, many joeys would be killed during the cull, and that  ‘ghost populations’ of orphaned joeys would develop – vulnerable young at foot that are dependent on their mothers’ milk to survive. The Applicant argued these orphaned joeys would not be able to survive in the wild due to chronic stress and post-traumatic stress disorder.

It was further argued that the cull was contrary to national environmental and animal welfare objectives, and that the Respondent had failed to consider viable non-lethal alternatives to kangaroo population management, such as the translocation of kangaroos across farm-lands or fertility control programs.

THE ACT GOVERNMENT’S RESPONSE

The Respondent argued that culling kangaroos is necessary to control the impact of grazing, and that the government is compelled to implement the ACT Kangaroo Management Plan by the ACT Nature Conservation Strategy.

It submitted further that the cull is necessary to maintain biodiversity, which would otherwise be threatened by loss or damage to endangered communities in the nominated reserves by uncontrolled kangaroo populations.

While the Respondent agreed that it would be likely that there would be some orphaning of young joeys and the creation of a ‘ghost population’, it maintained this did not render the cull “undesirable”.

The Respondent argued that alternative kangaroo management programs were not a practicable or viable alternative.

THE TRIBUNAL’S DECISION

Orders were made on 11 June 2014, finding in favour of the Respondent and permitting the cull to continue.

The Tribunal was satisfied with Dr Fletcher’s expertise and found that there was a sound scientific basis for issuing the licences. The Tribunal held that the decision involved a balancing of competing ecological interests, and found that the proposed cull would not threaten the eastern grey as a species, but that overgrazing and degradation by kangaroos could significantly threaten biodiversity.

While the Tribunal also recognised that the nature of the cull would never allow for optimum animal welfare outcomes, the Tribunal found that animal welfare was a primary consideration of the Respondent and that previous culling operations demonstrated a high awareness of safeguarding the interests of the kangaroos. The Tribunal acknowledged the concerns of the Respondent about unintended infant mortalities, however, it ultimately considered the cull was necessary.

The Tribunal rejected the Applicant’s expert witness, finding no scientific basis in the comparison between kangaroo behaviour and human emotion.  Accordingly, the Tribunal did not take into account the psychological damage suffered by orphaned joeys. Further, it found no scientific basis in the Respondent’s claims that culling is contrary to environmental objectives.

On the issue of non-lethal alternatives to kangaroo population management, the Tribunal was of the view that the Respondent did consider these alternatives, but that such alternatives were unviable.

SIGNIFICANCE AND IMPLICATIONS

The ACT cull concluded on 31 July 2014, resulting in 1,519 animals being shot, 87 individuals short of the government’s target. A further 514 pouched young were also killed.3

A spokesperson for Animal Liberation ACT, Caroline Drew, stated the decision by the ACTCAT had established a precedent which gives little weight to animal welfare and scientific evaluation when determining government sanctioned culls.4

Despite the application being unsuccessful, there were some small but notable victories. The Tribunal acknowledged that animal welfare and unintended mortality were relevant considerations in the decision to cull, which according to the ADO, is the first time a tribunal had acknowledged this about the kangaroo culls.

The Tribunal was also forced to acknowledge that hundreds of joeys – the ‘ghost population’ – die as a consequence of the cull, even though the Tribunal ultimately held this to be an acceptable outcome.

Most importantly, the application was successful in delaying the cull – a move that has been credited with saving the lives of some kangaroos5 – and galvanising public debate on the legitimacy of the cull.

In response to Animal Liberation ACT’s commitment to end the kangaroo cull, Mr Shane Rattenbury, Greens Minister for Territory and Municipal Services, has suggested the government should implement five year cull licences so as to limit the ability of animal advocates to challenge the decisions to grant the licences each year.

Voiceless considers this position entirely unacceptable. It would operate to effectively gag public debate, place the ACT Government’s decisions beyond the reach of judicial scrutiny, and mostly importantly, continue to sanction cruelty without due consideration for potential developments in kangaroo population management.

  1. Section 44, Nature Conservation Act 1980.
  2. ‘ACT kangaroo cull tribunal challenge begins before full bench’ ABC News (4 June 2014), <http://www.abc.net.au/news/2014-06-03/act-kangaroo-cull-tribunal-challen…, accessed 12 August 2014.
  3. Carl Smith and Clarissa Thorpe, ‘Annual kangaroo cull finishes in Canberra just short of official target’ (1 August 2014) ABC, <http://www.abc.net.au/news/2014-08-01/annual-kangaroo-cull-wraps-up-in-c…, accessed on 12 August 2014.
  4. Ibid, n 2.
  5. Ibid, n 4.