Kangaroos at a Crossroads: Environmental Law and the Kangaroo Industry

Abstract

Australia’s kangaroo industry represents the largest commercial kill of land-based wildlife in the world. The environmental law and policy that governs the industry primarily seeks to facilitate the killing of kangaroos on the basis that they damage agriculture and provide a renewable natural resource. The need to conserve kangaroos acts as a limiting factor to temper the commercial interests of landholders and shooters. This article identifies a number of problems with the current regulatory framework, particularly the lack of adherence to the precautionary principle. It highlights key measures of reform that could be introduced to enhance the regulatory framework and conserve kangaroos, such as density trigger points. Finally, the article argues that, on the basis of current scientific knowledge and difficulties in adhering to the precautionary principle, there is a pressing need for Australian governments to reassess the reasons for and against management of kangaroo populations through commercial killing.

Full text

Kangaroos at a crossroads: Environmental law
and the kangaroo industry
Keely Boom and Dror Ben-Ami
*
Australia’s kangaroo industry represents the largest commercial kill of
land-based wildlife in the world. The environmental law and policy that
governs the industry primarily seeks to facilitate the killing of kangaroos on
the basis that they damage agriculture and provide a renewable natural
resource. The need to conserve kangaroos acts as a limiting factor to temper
the commercial interests of landholders and shooters. This article identifies a
number of problems with the current regulatory framework, particularly the
lack of adherence to the precautionary principle. It highlights key measures of
reform that could be introduced to enhance the regulatory framework and
conserve kangaroos, such as density trigger points. Finally, the article argues
that, on the basis of current scientific knowledge and difficulties in adhering to
the precautionary principle, there is a pressing need for Australian govern-
ments to reassess the reasons for and against management of kangaroo
populations through commercial killing.
INTRODUCTION
The management of kangaroos in Australia is subject to strong and opposing views about its
desirability on sustainability, animal welfare, legal, ethical and other grounds.
1
The lack of consensus
amongst experts, stakeholders and the broader public on the nature of the problem or what an
acceptable solution may be, places the issue well within the definition of a “wicked” problem.
2
The issue of kangaroo management is predominantly driven by a perception that they are “pests”
3
and that their populations need to be “managed” (ie a proportion of individuals killed). Although
references to kangaroos as “pests” have been dropped from much of the existing law and policy, this
perception continues to influence governments. More recently, there has been a shift in policy towards
using kangaroos as a “resource”. As a result, the commercial kangaroo industry has grown to
encompass a kill of approximately 3 million kangaroos a year
4
making it the largest commercial kill of
land-based wildlife in the world.
5
In addition, approximately 300,000 young at foot and 800,000
pouch young are either killed or left to die each year as collateral of the commercial industry.
6
*
Keely Boom, Research Fellow with THINKK (Think Tank for Kangaroos), Institute of Sustainable Futures, University of
Technology Sydney; Dror Ben-Ami, co-founder and Research Associate with THINKK. The authors would like to acknowledge
the helpful comments of Dr Gerry Bates, Dr David Croft and Dr Malcolm Caulfield on the article, and comments on an earlier
draft by Katrina Sharman and Elizabeth Ellis. Any errors or mistakes remain with the authors.
1
See eg Choquenot D, Scientific, Economic and Social Issues of Commercial Use of Wild Animals in Australia (Bureau of
Resource Sciences, 1998).
2
See generally Khoo O, “A New Call to Arms or a New Coast of Arms? The Animal Rights and Environmentalism Debate in
Australia” (2009) 5 Journal of Animal Law 49; Rittel HWJ and Webber MM, “Dilemmas in a General Theory of Planning”
(1973) 4 Policy Sciences 155; Camillus JC, “Strategy as a Wicked Problem” (2008) 86(5) Harvard Business Review 98;
Jentoff S and Chuenpagdee R, “Fisheries and Coastal Governance as a Wicked Problem” (2009) 33(4) Marine Policy 553;
Chapple R, “The Politics of Feral Horse Management in Guy Fawkes River National Park, NSW” (2005) 33(2) Australian
Zoologist 233; Shindler B and Cramer LA, “Shifting Public Values for Forest Management: Making Sense of Wicked Problems”
(1999) 14(1) Western Journal of Applied Forestry 28.
3
For a definition of “pest”, see Feral.org.au, Pest Species, http://www.feral.org.au/pest-species viewed 4 January 2013.
4
The total number of kangaroos commercially killed is available at Australian Government, Wild Harvest of Australian Native
Animals (Department of Sustainability, Environment, Water, Population and Communities, 2012), http://
www.environment.gov.au/biodiversity/trade-use/wild-harvest/kangaroo/quota/2009.html viewed 4 January 2013.
5
In comparison, the Canadian government approved the kill of around 220,000 to 365,000 harp seals annually in the period 2001
(2013) 30 EPLJ 162162
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The welfare of individual kangaroos was largely ignored until studies by RSPCA Australia in
1985
7
revealed widespread cruelty, particularly in non-commercial killing. Since then a National Code
of Practice for the Humane Shooting of Kangaroos and Wallabies has been introduced. The Code aims
to provide technical specifications and procedures for the killing of kangaroos and dependent young.
The purpose of the Code is to ensure that the shooting is done in such a way that pain and suffering is
minimised. Nonetheless there are ongoing problems associated with the Code, particularly as there is
no formal training for the killing of dependent young whose mothers are killed and these practices go
virtually unmonitored.
8
Statutes at the State level are the main legislative instruments that regulate the kangaroo industry.
In addition, the Commonwealth has passed legislation that regulates kangaroo meat for export. Each
of the States with a commercial industry has a kangaroo management plan that regulates the industry
and is approved by the Commonwealth. These kangaroo management plans provide the key
environmental regulatory instruments for the industry. Furthermore, the industry’s animal welfare
standards are regulated by the Code and the animal protection legislation of the States.
The aim of this article is to critically examine the environmental law framework that governs the
kangaroo industry. Particular focus is given to the environmental safeguards contained in the
legislation and areas where there is room for improvement. It first considers the legal status of
kangaroos as it has evolved over time, before explaining the regulatory framework and its key
elements for commercial management of kangaroos. Finally, the article highlights the problems and
areas for policy reform.
LEGAL STATUS OF KANGAROOS
The commercial killing of kangaroos for export occurs in the States of Queensland, New South Wales,
South Australia, Western Australia and (most recently) Tasmania. The Victorian government has stated
that there is no commercial killing of kangaroos in that State.
9
The Northern Territory considered but
rejected a commercial industry.
10
The species killed in each jurisdiction are as follows: the red kangaroo (Macropus rufus) in areas
of Queensland, New South Wales, South Australia and Western Australia; the eastern grey kangaroo
(M. giganteus) in areas of Queensland and New South Wales; the western grey kangaroo (M.
fuliginosus) in areas of New South Wales, South Australia and Western Australia; the common
wallaroo or euro (M. robustus) in areas of Queensland, New South Wales and South Australia; and
Bennett’s wallaby (M. rufogriseus rufogriseus) in areas of King Island, Tasmania.
Government-sponsored killing of kangaroos has a long history in Australia. In the 1880s, all of
the States in eastern Australia had legislation for the eradication of kangaroos. For example, they were
to 2011. See Fisheries and Oceans Canada, Overview of the Atlantic Seal Hunt 2006-2010 (2010), http://www.dfo-mpo.gc.ca/
fm-gp/seal-phoque/reports-rapports/mgtplan-plangest0610/mgtplan-plangest0610-eng.htm viewed 4 January 2013.
6
Based on Hacker R, McLeod SR, Druhan JP, Tenhumberg B and Pradhan U, Kangaroo Management Options in the
Murray-Darling Basin (Murray-Darling Basin Commission, 2004) with a 60% male harvest (or 40% female) the number of
young at foot killed annually in the last decade is around 300,000 and the number of pouch young around 840,000.
7
RSPCA Australia, Incidence of Cruelty to Kangaroos (1985).
8
Boom K and Ben-Ami D, “Shooting Our Wildlife: An Analysis of the Law and its Animal Welfare Outcomes for Kangaroos
and Wallabies” (2011) 5 Australian Animal Protection Law Journal 44.
9
The Department of Sustainability and Environment has stated: “Commercial harvesting of wild kangaroos is not permitted in
Victoria and it is government policy not to develop a commercial kangaroo industry.” Victorian Government, Fact Sheet:
Management of Large Kangaroos in Victoria: Harvesting of Wild Kangaroos for Commercial Purposes (Department of
Sustainability and Environment, 2009).
10
See Neave HM, Assessment of the Conservation and Management of the Red Kangaroo Macropus Rufus and Euro Macropus
Robustus in the Northern Territory (Northern Territory Government, 2008), http://lrm.nt.gov.au/__data/assets/pdf_file/0010/
11170/kangaroo_assessment.pdf viewed 21 January 2013.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 163
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declared vermin
11
under the Pasture and Stock Protection Act 1880 (NSW) and bounties were offered
for their heads.
12
As a result of this “pest” status, many species were extensively killed
13
and some
were killed to the point of extinction.
14
From the mid 19th century the State and Territory governments have sought to protect kangaroos,
initially through an “off season” when hunting was not permitted.
15
Eventually, kangaroos gained the
status of “protected fauna” in most jurisdictions, which they still hold today. It is an offence to kill or
harm them
16
and shooters must obtain licences in order to commercially shoot kangaroos.
17
However, the status of kangaroos in Western Australia is more complex. The western grey
kangaroo is a protected species under the Wildlife Conservation Act 1950 (WA), which is administered
by the Department of Environment and Conservation. However, the western grey kangaroo is also a
“declared pest of agriculture” under the provisions of the Agriculture and Related Resources
Protection Act 1976 (WA), which is administered by the Western Australian Department of Agriculture
and Food.
18
This seemingly contradictory status of western grey kangaroos in Western Australia is inconsistent
with the legal status of kangaroos in New South Wales, Queensland and South Australia and the
current state of scientific knowledge (see discussion below). Designating an animal as a “pest” is a
subjective decision,
19
exposes such animals to higher levels of cruelty,
20
and undermines efforts to
support conservation of those species.
11
Croft D, “Kangaroos Maligned – 16 Million Years of Evolution and Two Centuries of Persecution” in Wilson M and Croft D
(eds), Kangaroos Myths and Realities (3rd ed, AWPC, 2005) p 26; Morris EE, Australia’s First Century, 1788-1888 (Child &
Henry, 1978) p 312.
12
Morris, n 11, p 312.
13
Eg in 1884, 260,780 macropods were killed in the Tamworth district. See Kirkpatrick TH and Amos PJ, “The Kangaroo
Industry” in Lavery HJ (ed), The Kangaroo Keepers (University of Queensland Press, 1985) p 75.
14
From 1883 to 1920, around 3 million bettongs and potoroos (Potoroids) were shot for bounties. Three species are now extinct.
It has been argued that the introduction of the red fox contributed to these extinctions. Short J, “The Extinction of
Rat-kangaroos (Marsupialia:Potoroidea) in New South Wales Australia” (1998) 86 Biological Conservation 365.
15
See eg Game Act 1867 (Vic), which provided a single off-season from 1 August until 30 November. By 1915, this Act
included black-faced, large red and large grey kangaroos.
16
In New South Wales, the National Parks and Wildlife Act 1974 (NSW) provides that it is an offence to harm protected fauna
without a licence (ss 5, 98). In Queensland, s 88 of the Nature Conservation Act 1992 (Qld) provides that it is an offence for an
unauthorised person to “take” a protected animal. Taking includes killing, injuring or harming an animal (s 88(2), Dictionary).
In South Australia, the National Parks and Wildlife Act 1972 (SA), s 68(1) provides that it is an offence to interfere with, harass
or molest a protected animal without legislative authority or a permit. In Western Australia, s 16 of the Wildlife Conservation
Act 1950 (WA) provides that it is an offence to kill protected fauna without an appropriate licence. In Tasmania, regs 15-17 of
the Nature Conservation Act 2002 (Tas) provide that it is an offence to kill specially protected, protected or partly protected
wildlife without an appropriate permit.
17
In New South Wales, s 123 of the National Parks and Wildlife Act 1974 (NSW) allows for licences to be granted. In
Queensland, the Nature Conservation (Wildlife Management Regulation 2006 (Qld) and Nature Conservation (Administration)
Regulation 2006 (Qld) provide for licences to be granted. In South Australia, s 53 of the National Parks and Wildlife Act 1972
(SA) allows for the Minister to grant a permit to allow the killing of a protected animal. In Western Australia, reg 5 of the
Wildlife Conservation Regulations 1970 (WA) provides for the issue of licences for killing protected fauna where the animals
are causing damage to property. Regulation 6 provides for the issue of licences permitting the commercial killing of kangaroos.
In Tasmania, reg 6 of the Wildlife Regulations 1999 (Tas) allows for the issuing of licences for the killing of wallabies.
Regulation 13 provides for the issue of a permit to kill wildlife in order to prevent destruction of or injury to plants or stock.
18
Western Australian Government, Fauna Notes: No 30 Western Grey Kangaroo Management Plan (Department of
Environment and Conservation, 2009) p 1.
19
Seymour F, “Introduced Wild Animals – Invasive Pests or Abandoned Victims” (2000) 8(1) Animals Today 12; CSIRO, The
Ecology of Pests – Some Australian Case Histories, CSIRO (1981) p 1: “The term ‘pest’ describes a human construct rather than
an ecological reality – we classify an organism as a pest if it damages crops, destroys products, transmits of causes disease, is
annoying, or in other ways conflicts with human needs or interest. That is, a pest is a pest because its life system happens to
overlap with human life systems in some way that humans find objectionable, not because its life history and ecology have
special biological features unique to pests.”
Boom and Ben-Ami
(2013) 30 EPLJ 162164
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Similarly, in Tasmania, Bennett’s wallabies are “partly protected fauna” under Sch 4 of the
Wildlife (General) Regulations 2010 (Tas). While Bennett’s wallabies are not classified as “pests”, the
Minister can declare an “open season” for partly protected wildlife in accordance with s 30 of the
Nature Conservation Act 2002 (Tas).
Some statutes and regulatory instruments have asserted ownership by the Crown of wild
animals;
21
however, this is contrary to the position at common law. There is no absolute property in
live wild animals under the common law (ferae naturae) on the basis that they belong to no one (res
nullius).
22
If a landholder hunts and kills wildlife on their land, then qualified property rights will
arise.
A number of commentators have examined the Crown’s assertion of ownership of wildlife in the
Australian context
23
and the United States context
24
and concluded that there is reason to doubt its
validity. The notion that the Crown can claim ownership of wildlife, and specifically kangaroos,
confuses a right of property, which is founded on possession or control, and a right to direct who may
possess wildlife and on what terms, through licensing or other regulatory systems.
25
Furthermore, the High Court of Australia has dismissed the Crown’s statutory claim to ownership
of wildlife in Yanner v Eaton (1999) 201 CLR 351; 105 LGERA 71, which concerned the Fauna
Conservation Act 1974 (Qld) (now repealed).
26
The statute asserted that fauna was the “property of the
Crown”
27
and that “royalty at the rates prescribed shall be payable to the Crown”.
28
Mundaroo
Yanner, an Aboriginal man, had killed two crocodiles and shared the meat with members of his tribe.
29
Yanner was charged with s 54 of the Fauna Conservation Act 1974 (Qld) for taking fauna without a
licence. In his defence, Yanner argued that his native title right to engage in non-commercial,
communal and personal hunting was protected under s 211 of the Native Title Act 1993 (Cth).
The majority of the High Court accepted Yanner’s position and rejected the Crown’s assertion of
ownership under statute. The majority stated:
There are several reasons to conclude that the “property” conferred on the Crown is not accurately
described as “full beneficial, or absolute, ownership”. First, there is the difficulty in identifying what
fauna is owned by the Crown… Secondly… what exactly is meant by saying that the Crown has full
20
See eg Thiriet D, “In the Spotlight – The Welfare of Introduced Wild Animals in Australia” (2007) 24 EPLJ 417. In relation
to the role of language and flora, see eg Arcioni E, “What’s in a Name? The Changing Definition of Weeds in Australia” (2004)
21 EPLJ 450.
21
See eg s 83(1) of the Nature Conservation Act 1992 (Qld), which provides that “all protected species are the property of the
State”; s 97(2) of the National Parks and Wildlife Act 1974 (NSW) provides that “protected faunas… shall, until captured or
killed, be deemed the property of the Crown”; s 22(1) of the Wildlife Conservation Act 1950 (WA) provides that “property in
fauna, until lawfully taken is… vested in the Crown”.
22
See eg Walden v Hensler (1987) 163 CLR 561 per Brennan J: “a wild animal, in its state of natural liberty is not ‘property’
while it remains in that state”.
23
White S, “Animals in the Wild” in Sankoff P and White S (eds), Animal Law in Australasia (Federation Press, 2009); Cao D,
Animal Law in Australia and New Zealand (Lawbook Co, 2010); Carey R et al, “Review of Legislation and Regulations
Relating to Feral Camel Management: Report 50”, Desert Knowledge CRC (2008). Hart CFK, “Legal and Policy Responses to
the Problem of Pest Animal Impacts on Natural Resources in NSW” (2002) 19 EPLJ 355 (arguing that the New South Wales
legislation modified the common law).
24
Favre D, “A New Property Status for Animals” in Sunstein CR and Nussbaum MC (eds), Animal Rights: Current Debates and
New Directions (Oxford University Press, 2004); Favre D, “Equitable Self-ownership of Animals” (2000) 473 Duke Law
Journal 480; Francione G, Animals, Property and the Law (Temple University Press, 1995).
25
White, n 23; Favre (2004), n 24.
26
The repealed legislation has been superseded by the Nature Conservation Act 1992 (Qld). Section 83(1) of this Act asserts
that “all protected animals are the property of the State”.
27
Fauna Conservation Act 1974 (Qld) (repealed), s 7(1).
28
Fauna Conservation Act 1974 (Qld) (repealed), s 67.
29
See generally Meyers GD, “Native Title Rights in Natural Resources: A Comparative Perspective of Common Law
Jurisprudence” (2002) 19 EPLJ 245; Thiriet D, “Out of the ‘Too Hard Basket’ – Traditional Hunting and Animal Welfare”
(2007) 24 EPLJ 59.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 165
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beneficial, or absolute, ownership of a wild bird or animal? The respondent (and the Commonwealth)
sought to equate the Crown’s property in fauna with an individual’s ownership of a domestic animal…
“Ownership” connotes a legal right to have and to dispose of possession and enjoyment of the subject
matter. But the subject matter dealt with by the Fauna Act is… intended by that Act always to remain
outside the possession of, and beyond the disposition by, humans. Thirdly… [t]he property rights of the
Crown would come and go… as open seasons were declared and fauna taken… [E]ach [of these
reasons] tends to suggest that [the Crown’s property interest] is an unusual kind of property and is less
than full beneficial, or absolute, ownership.
30
The majority also used the example of migratory birds that fly over Queensland. They asked
whether property would exist only so long as the birds were in Queensland’s territory, or whether the
Crown would own every bird that had ever flown onto Queensland’s territory.
31
A similar analogy
would apply to kangaroos that cross the borders of States and Territories. The majority concluded that
the Crown’s assertion of ownership is “nothing more than a fiction expressive in legal shorthand of the
importance to its people that a State has power to preserve and regulate the exploitation of an
important resource”.
32
The court’s ruling may have other implications for native title rights. In particular, the Mabo
decision of 1992 held that the Crown acquired only radical title to all lands in Australia upon
colonisation.
33
Radical title is a bare right of property in land, which allows the Crown to invest
persons (including itself) with beneficial ownership of land.
34
The definition of land at common law
includes all things under and over the surface of the earth (cujus est solum ejus est usque ad coelum),
which means that all minerals form part of the land
35
and exercises of radical title can displace native
title rights.
36
However, if property cannot be effectively declared over wildlife, then exercises of
radical title cannot displace native title rights. Thus, the Crown does not own kangaroos; however, it
retains the right to control possession of kangaroos through regulatory systems.
LEGISLATION AND MANAGEMENT PLANS
The kangaroo industry is regulated by a plethora of environmental and conservation Acts and
Regulations passed to both conserve kangaroos and facilitate the functioning of the industry. Primary
responsibility for the regulation of the industry rests upon the State governments. As a result, the most
important instruments are those found at the State level, such as the National Parks and Wildlife Act
1974 (NSW), Nature Conservation Act 1992 (Qld), National Parks and Wildlife Act 1972 (SA),
Wildlife Conservation Act 1950 (WA), and the Nature Conservation Act 2002 (Tas). As discussed
above, these Acts and associated Regulations provide that it is an offence to kill protected fauna yet
also allow for open seasons or the provision of licences to kill such animals. Licences are provided for
both commercial and non-commercial killing.
The States seek to regulate the commercial killing through management plans that set out the
objects and purposes of the scheme, as well as ecological and animal welfare considerations. These
State-based management plans are approved by the Commonwealth in order for kangaroos killed in
those States to enter the export market. The Commonwealth regulates the export of kangaroos through
the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
30
Yanner v Eaton (1999) 201 CLR 351 at 367-369 per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
31
Yanner v Eaton (1999) 201 CLR 351 at 367.
32
Yanner v Eaton (1999) 201 CLR 351 at 369.
33
Mabo v Queensland (No 2) (1992) 175 CLR 1.
34
Rogers N, “The Emerging Concept of ‘Radical Title’ in Australia: Implications for Environmental Management” (1995) 12
EPLJ 183 at 186.
35
Blackstone W, Commentaries on the Laws of England (15th ed, Book II, A Strahan, 1809) p 18.
36
The validation of grants of mining interests did not have the effect of extinguishing native title, but rather “suspended” native
title until termination of the mining grant. See Native Title Act 1993 (Cth), s 15(1)(d). See also ss 17, 238 (discussing the
non-extinguishment principle). See also Tehan M, “Customary Title, Heritage Protection, and Property Rights in Australia:
Emerging Patterns of Land Use in the Post-Mabo Era” (1998) 7 Pacific Rim Law and Policy Journal 765; Bartlett R, “The Wik
Decision and Implications for Resource Development” (1997) 16 Australian Mining and Petroleum Law Journal 27.
Boom and Ben-Ami
(2013) 30 EPLJ 162166
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Part 13A of the EPBC Act regulates the international movement of wildlife specimens.
Section 303DD provides that it is an offence to export without a permit, and that such a permit can be
issued where the export is in accordance with the approved plan (see eg s 303FJ). Section 303BA(a)
provides the objects of Pt 13A. Section 303DD(3) provides for the accreditation of wildlife trade
management plans.
State kangaroo management plans are accredited with the Commonwealth through s 303DD(3),
which allows kangaroo products to be exported. Conditions for approval are set out in s 303FP.
Further conditions for wildlife trade management plans are set out in s 303FO. The approved State
management trade plans must incorporate the Code. Wildlife trade management plans must be
consistent with the objects of Pt 13A and must not cause detriment to the species covered in the
specific plan.
The requirement for the plan to not cause detriment to the species could be interpreted to
incorporate both conservation and welfare. Rather it appears that this is a requirement for the plans to
not cause any ecological harm to the species killed.
37
In this context it is likely that it means not to
cause the extinction of the species. This is consistent with maintaining populations in their current
range and the focus of conservation biology on species and populations, not individuals.
New South Wales, Queensland, South Australia and Western Australia have approved wildlife
trade plans.
38
If States do not seek to export kangaroo products there is no requirement for their plans
to be approved by the Commonwealth. The wildlife trade management plans currently approved are
listed in Table 1.
39
In addition, the commercial kill and export of Bennett’s wallaby skins from
Tasmania is an approved wildlife trade operation (subject to conditions).
40
TABLE 1 Approved Wildlife Trade Management Plans under the EPBC Act
State Program name Species Organisation Approval period
From To
NSW NSW
Commercial
Kangaroo
Harvest
Management
Plan
Macropus rufus
Macropus fuliginosus
Macropus giganteus
Macropus robustus
robustus
Macropus robustus
erubescens
New South
Wales Office of
Environment and
Heritage
1 January 2012 31 December
2016
Qld Wildlife Trade
Management
Plan for Export
– Commercially
Harvested
Macropods
Macropus rufus
Macropus giganteus
Macropus robustus
Queensland
Environmental
Protection
Authority
1 January 2008 31 December
2012
SA The Kangaroo
Conservation
and Management
Plan for South
Australia
Macropus rufus
Macropus fuliginosus
Macropus robustus
Department for
Environment and
Heritage
1 January 2008 31 December
2012
37
Wildlife Protection Assn of Australia Inc and Minister for the Environment, Heritage and the Arts [2008] AATA 717 at [26].
38
Australian Government, Approved Wildlife Management Plans (Department of the Environment, Water, Heritage and the Arts,
2012).
39
The approved wildlife trade management plans are listed at Australian Government, n 38.
40
Permit issued to Lenah Game Meats for the period 1 November 2009 until 31 October 2012: Australian Government, Wildlife
Trade Operations (Department of the Environment, Water, Heritage and the Arts, 2012).
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 167
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TABLE 1 continued
State Program name Species Organisation Approval period
From To
WA Management
Plan for the
Commercial
Harvest of
Kangaroos in
Western
Australia
Macropus rufus
Macropus fuliginosus
Department of
Conservation
and Land
Management
1 January 2008 31 December
2012
The National Plan of Management for Kangaroos (National Management Plan) provides guidelines for
the State kangaroo management plans.
41
The National Management Plan was approved by the Council
of Nature Conservation Ministers
42
in May 1985 and replaced the previous guidelines entitled
“National Kangaroo Management Program”. The National Management Plan was revised in 1990. In
September 2010, the Natural Resource Management Standing Committee agreed to the development
of a document to replace the National Management Plan.
43
This document is currently being
developed by a “multi-[jurisdictional] macropod harvest task group”, which is comprised of
representatives from the agencies responsible for kangaroo management.
44
The National Management Plan originally listed two aims of kangaroo management. In
September 1990 a third aim was added. The aims of kangaroo management as set out in the National
Management Plan are now:
1. To maintain populations of kangaroos over their natural ranges;
2. To contain the deleterious effects of kangaroos on other land management practices; and
3. Where possible, to maintain kangaroo species as a renewable natural resource providing the
conservation of the species is not compromised.
The first aim, of maintaining kangaroo populations, is predominantly a conservation goal. It refers
to the need for kangaroo populations to be protected. The second aim, to contain the “deleterious
effect” of kangaroos, is a pest control goal for damage mitigation to traditional farming practices
including livestock and crop production. The second aim reflects the ongoing historical perception that
kangaroos are “pests” that need to be managed. The first and second aims clearly reflect the ongoing
dilemma that regulatory authorities are faced with in ensuring that kangaroo species are conserved but
that land managers are able to kill them due to any perceived deleterious effects that they may cause.
The third aim of utilising kangaroos as a “renewable natural resource” is qualified by the
requirement that the utilisation does not compromise conservation of the species. The wording of this
aim reflects the fact that the utilisation of wild animals is not necessarily compatible with
conservation. Indeed, the wording of this aim suggests that using kangaroos as a “renewable natural
resource” is simply a reference to ensuring that the rate of kill is not at such a level that populations
collapse and local extinction ensues.
Thus, it is evident that conservation is not at the centre of the National Management Plan.
Conservation is included as a qualification to the overarching goals of killing kangaroos to “contain”
their “deleterious effects” and killing for use as a “renewable natural resource”.
41
Council of Nature Conservation Ministers, National Plan of Management for Kangaroos (1990) (on file with authors).
42
Now the Australian and New Zealand Environment and Conservation Council (ANZECC).
43
Steensby C (Assistant Director, Wildlife Trade Assessments, Department of Sustainability, Environment, Water, Population
and Communities), email to authors, 26 March 2012.
44
Steensby, n 43.
Boom and Ben-Ami
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KEY ELEMENTS
There are a number of key elements of the regulation of kangaroo killing in Australia. The elements
considered here are: population surveys; quotas and harvest zones; permits; and weight restrictions.
Together these regulatory tools are primarily designed to ensure that kangaroo populations are
maintained.
Population surveys
Population surveys are used to determine estimated populations of kangaroos.
45
The States use
varying methods of surveying populations and there is no agreed methodology. The frequency of
population surveys also varies. Aerial and ground surveys are used. However, there are problems with
these surveys due to two key reasons.
First, population surveys are an estimate of the population by spotting kangaroos either from a
plane or helicopter.
46
Although ground truthing has been undertaken to establish the most appropriate
correction factors for unaccounted kangaroos,
47
the population estimates still carry a sampling error
and an error in the estimation of the correction factor.
48
Thus, the population estimate may only be
within a precision of 10-20% of its true value.
49
At best, they inform on relative changes in estimated
kangaroo numbers in specific locations from year to year.
Secondly, correction factors have been revised periodically since aerial surveys commenced.
Therefore, it is not possible to compare current population estimates between successive years, such as
prior to 1992, from 1993-2001 and 2001-today, when correction factors were revised.
50
These
corrections undermine the ability of surveys to convey precise long-term changes in kangaroo
populations.
Quotas and harvest zones
A national quota is set by the Commonwealth government that is meant to represent the estimated
sustained yield and upper “harvest” or killing limit. This quota is further divided up by States. The
States in which killing occurs are divided up into commercial and non-commercial zones and these are
further divided up into smaller management zones. These zones are used for further quota-setting and
monitoring.
The quotas are derived through a variety of means. The most important of these are estimates of
population size and density from aerial and ground surveys. However, other factors include population
trends, climatic conditions (especially rainfall) and changes in statistics (such as carcass weight and
sex ratio).
51
In the period 1980-2012, the national annual quota for all species combined has ranged from
1,988,000 to 6,942,687.
52
In recent years, the combined State quotas have represented about 15% of
45
The population surveys can be accessed at Australian Government, n 4.
46
Payne N, Population Monitoring Methods for the NSW Kangaroo Management Program (Kangaroo Management Program,
Department of Environment and Conservation (NSW), North West Branch, January 2008); Pople AR, Cairns SC, Clancy TF,
Grigg GC, Beard LA and Southwell CJ, “Comparison of Surveys of Kangaroos in Queensland Using Helicopters and
Fixed-wing Aircraft” (1998) 20(1) The Rangeland Journal 92.
47
Pople AR, Cairns SC, Clancy TF, Grigg GC, Beard LA and Southwell CJ, “An Assessment of the Accuracy of Kangaroo
Surveys Using Fixed-wing Aircraft” (1998) 25(3) Wildlife Research 315.
48
Pople AR, “Population Monitoring for Kangaroo Management” (2004) 26(1) Australian Mammalogy 37; Pople AR,
“Frequency and Precision of Aerial Surveys for Kangaroo Management” (2008) 35 Wildlife Research 340.
49
See eg Pople A, Cairns S, Menke N and Payne N, “Estimating the Abundance of Eastern Grey Kangaroos (Macropus
giganteus) in South-eastern New South Wales, Australia” (2006) 33(2) Wildlife Research 93.
50
Olsen P and Low T, Update on Current State of Scientific Knowledge on Kangaroos in the Environment, Including Ecological
and Economic Impact and Effect of Culling (Kangaroo Management Advisory Panel, 2006); Pople T and Grigg G, Commercial
Harvesting of Kangaroos in Australia (Department of Environment, Water and the Arts, 1999).
51
Jackson S and Vernes K, Kangaroo: Portrait of an Extraordinary Marsupial (Allen & Unwin, 2010) p 176.
52
See Australian Government, n 4.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 169
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the estimated combined population size of the four mainland species in the kill but can range between
10% and 20%.
53
In 2011, the quota on the mainland was set at 3,730,710. This represents about 14.9%
(ranging from 10%-20% depending on species and State) of the estimated combined populations of
the commercially killed species.
54
The quotas for mainland States are set on a calendar year basis, while the Tasmanian quotas are
set on a fiscal year basis (1 July-30 June). In 2001-2009, the total number of kangaroos killed was
64% of the total annual quota over that period.
New South Wales and South Australia also have a “special quota” that may be utilised where a
management zone’s quota has been reached. In these instances, additional kangaroos may be shot for
commercial purposes where there is “a continuing damage mitigation need”.
55
For 2012, the South
Australian special quota (all three commercially killed species) was 11,200 and the New South Wales
special quota is 147,227.
A key weakness of the quota system is that State-wide trends can disguise localised issues. It has
been argued that the maximum sustainable yield is never reached in the combined statistics and that
therefore the level of killing must be sustainable. However, this generalisation fails to recognise that
the quota is often met and sometimes exceeded in the zones. For example, the quotas for eastern grey
kangaroos in the Upper Hunter, New South Wales, and for red kangaroos in Bourke, New South
Wales, were exceeded in 2006.
56
In addition, the quota numbers and population estimates do not take
into account the killing of young and the non-commercial killing.
57
These nuances of the quota system
suggest that assessment of the sustainability of the kangaroo industry should focus upon local
populations of each species in each management zone, as they do in New South Wales, rather than
across whole States.
Permits
Each participant in the killing of kangaroos and the processing and sale of kangaroo products is
required to be licensed. Harvesters, landholders, meat processors, skin dealers and meat retailers are
all required to obtain licences from the appropriate government agencies.
For example, in New South Wales, occupiers need to obtain a licence under s 121 of the National
Parks and Wildlife Act 1974 (NSW). Licences can be non-commercial or commercial. Applicants need
to include the species and number of tags requested. In the case of non-commercial occupier licences,
the application form requires the occupier to specify the damage caused by the native fauna by ticking
one or more of the following options: damage to crops; damage to fences; and competition for
pastures and/or water.
58
Clearly a regulatory framework requiring verification of applicants’ claims is
necessary.
Tags are issued with each licence and must be attached to the carcasses of both commercially and
non-commercially shot kangaroos. The licence will have an expiry date and a set of conditions
attached. Commercial shooters are required to obtain a commercial fauna harvester’s licence. A person
may only obtain such a licence after completing the accreditation and meat handling course.
53
Australian Government, n 4; Caughley G, “Ecological Relationships” in Caughley G, Shepherd N and Short J (eds),
Kangaroos: Their Ecology and Management in the Sheep Rangelands of Australia (Cambridge University Press, 1987) p 159;
Grigg G, “A Crossroads in Kangaroo Politics” (1997) 10 Australian Biologist 12; Pople and Grigg, n 50.
54
The commercial harvest quotas are available at Australian Government, n 4.
55
Australian Government, Background Information: Commercial Kangaroo and Wallaby Harvest Quotas (Department of
Environment, Water, Heritage and the Arts, 2011) p 2.
56
2006 NSW Kangaroo Management Program – Kangaroo and Wallaroo Commercial Take.
57
NSW Young Lawyers Animal Law Committee, A Submission to the NRMMC Working Group on the Draft National Code of
Practice for the Humane Shooting of Kangaroos and Wallabies (prepared by Hall A, Mancy J, McWilliams E and Radich A,
2008) p 5.
58
New South Wales Government, Application to Harm Protected Fauna in New South Wales – Section 121 Occupier’s Licence
– Non-commercial (Office of Environment and Heritage, 2011).
Boom and Ben-Ami
(2013) 30 EPLJ 162170
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Kangaroos must be shot in accordance with the Code. At the end of each month harvesters provide
activity reports. The harvester’s vehicle and firearm(s), meat processors, skin dealers and meat
retailers must all be licensed.
59
Weight restrictions
In South Australia, meat processors have established an informal rule of accepting a minimum weight
of 14 kg for carcasses.
60
However, there is no legal requirement to adhere to this restriction. In
contrast, a minimum carcass weight and skin size is set by the Queensland government each year in
the harvest period notice.
61
In 2011 this was 20 kg for the minimum whole weight and 13 kg if the
animal is fully dressed.
62
The dressing of an animal generally refers to the removal of its
gastrointestinal tract, head and one foot (practices vary across States).
63
PROBLEMS AND DEVELOPMENTS
Is there a need to manage kangaroo populations?
There is a common perception that landscape alteration caused by settlers and their agricultural
practices greatly benefited Australia’s larger kangaroo species and led to an increase in their
numbers.
64
The key factors cited are the introduction of water points in arid areas, control of the
dingo
65
and land-use changes such as deforestation to benefit livestock.
66
It is argued that the
“commercial harvest of kangaroos has proven to be an effective mechanism for managing Australia’s
overabundant kangaroo population”.
67
Thus, the perceived high abundance of kangaroos is portrayed
as an environmental issue that requires reduction through management, with killing an effective means
of achieving this management.
More specifically, kangaroos are commonly viewed as agricultural pests. The perception that
kangaroo populations needed to be managed was previously the predominant force in the regulatory
framework. For instance, in New South Wales the goal of the Kangaroo Management Plan 1998-2001
was “to minimise the adverse effects that certain densities of [kangaroos] may have on rangelands, on
pastoral and agricultural production and other land uses”.
68
Licences were only granted if the killing
could be justified on the basis of damage mitigation.
69
Specifically, s 1.8 of the Plan provided:
59
New South Wales Government, Handbook for Kangaroo Harvesters (Department of Environment, Climate Change and
Water, April 2010).
60
Thomsen DA and Davies J, “Rules, Norms and Strategies of Kangaroo Harvest” (2008) 14 Australasian Journal of
Environmental Management 123 at 129.
61
Queensland Government, Commercial Harvesting of Macropods in Queensland (Department of Environment and Resource
Management, 2012).
62
Nature Conservation (Macropod Harvest Period 2011) Notice 2010 (Subordinate Legislation 2009 No 315), s 10.
63
In the Queensland management plan dress means “(i) to skin the macropod; or (ii) to remove the head, paws, tail or an internal
organ of the macropod; but does not include to process the macropod”. Fully dressed means “with all of the following parts
removed – (a) the head; (b) the viscera; (c) each of the forelimbs, from the elbow joint; (d) the foot of 1 hind limb, from the point
below the tarsal joint; (e) the hind limb, other than the hind limb mentioned in paragraph (d), from a point on the tibia midway
between the knee and ankle joints; (f) the tail, not more than 160 mm from a point where the underside of the tail joins the body
in the external urogenital area”: Nature Conservation (Macropod Harvest Period 2011).
64
Thomsen and Davies, n 60 at 124.
65
Thomsen and Davies, n 60 at 124; Newsome AE, “An Ecological Comparison of the Two Arid-Zone Kangaroos of Australia
and the Anomalous Prosperity Since the Introduction of Ruminant Stock to their Environment” (1975) 50 The Quarterly Review
of Biology 389.
66
Newsome, n 65; Calaby JH and Grigg GC, “Changes in Macropodid Communities and Populations in the Past 200 Years, and
the Future” in Grigg GC, Jarman PJ and Humen ID, Kangaroos, Wallabies and Rat-kangaroos (Surry Beatty & Sons, 1989)
pp 813-820.
67
Thomsen and Davies, n 60 at 124.
68
New South Wales Kangaroo Management Program, effective 1 January 1998 to 31 December 2001.
69
Circular: Explanatory Notes to Support the Public Exhibition of NSW Kangaroo Management Program – A Management
Program for the Utilisation of Four Kangaroo Species in New South Wales at [1.8] (Circular).
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 171
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Applications to take kangaroos must be justified on the basis that the numbers of kangaroos are such
that significant damage to crops or pastoral production or rangeland is occurring or likely to occur.
Landholders thus have no prima facie right to take kangaroos independently of this need to protect their
rangelands, agricultural lands or pastoral production.
Section 1.8 of the Plan provides a clear example of where the perception that kangaroos are pests
provided the primary justification for their killing. While it would be expected that such a regulation
would require proof of damage and proof that the killing had achieved some damage mitigation
outcomes, the Plan did not contain any mechanisms to assess where kangaroos had caused damage or
whether they would cause damage.
70
There were no mechanisms to determine whether damage
mitigation outcomes had been achieved through the authorised kill.
71
Gilroy argued that this “core
element of the program could not be audited” (emphasis added).
72
However, an assessment of damage
mitigation outcomes is a core feature of pest control programs and could be applied to kangaroo
management.
Scientific research now negates the notion that kangaroos need to be killed for pest control or
damage mitigation purposes through State-based kangaroo management programs. A lengthy review
of kangaroos in the environment, including the ecological and commercial impact of culling, has
concluded that damage to farming properties due to kangaroos has been difficult to monitor, predict
and even to prove empirically.
73
Comparisons of instantaneous field metabolic rates between
kangaroos and sheep show that the competitive impacts of kangaroos on stock are normally not an
issue in the arid rangelands when vegetation conditions are good.
74
Kangaroos have been shown to
only compete to the possible detriment of livestock in extreme drought conditions as their diets
diverge under most conditions.
75
Furthermore, kangaroos and livestock in the rangelands of
north-western New South Wales segregate where possible with no damage to wool/lamb production.
76
There is also a common misperception that kangaroo species have increased since colonisation
because of the introduction of artificial watering holes. However, water use by the red kangaroo,
which is the most abundant rangeland species, is just 13% that of sheep and it is able to concentrate
urine more effectively even though its diet contains a high amount of high-salt chenopods.
77
The red
kangaroo also does not show water-focussed grazing and it appears that the species’ reliance upon
artificial water holes is overestimated.
78
70
Gilroy J, “New South Wales Kangaroo Management Program: 2002 and Beyond” (2004) 26 Australian Mammalogy 3 at 5.
71
Gilroy, n 70 at 5.
72
Gilroy, n 70 at 5.
73
Olsen P and Low T, Update on Current State of Scientific Knowledge on Kangaroos in the Environment, Including Ecological
and Economic Impact and Effect of Culling (Kangaroo Management Advisory Panel, 2006) p 11.
74
Dawson TJ and Munn AJ, “How Much do Kangaroos of Differing Age and Size Eat Relative to Domestic Stock?:
Implications for the Arid Rangelands” in Dickman C, Lunney D and Burgin S (eds), Animals of Arid Australia: Out on their
Own? (Royal Zoological Society of NSW, 2007); Munn AJ, Dawson TJ, McLeod SR, Croft DB, Thompson MB and
Dickman CR, “Field Metabolic Rate and Water Turnover of Red Kangaroos and Sheep in an Arid Rangeland: An Empirically
Derived Dry-sheep-equivalent for Kangaroos” (2008) 57 Australian Journal of Zoology 23.
75
McLeod S, The Foraging Behaviour of the Arid Zone Herbivores, the Red Kangaroos (Macropus rufus) and the Sheep (Ovis
aries) and their Role in its Competitive Interactions, Population Dynamics and Life-history Strategies (University of New South
Wales, 1996); Ellis TJ and Ellis BA, “Diets of Mammalian Herbivores in Australian Arid Shrublands: Seasonal Effects on
Overlap between Red Kangaroos, Sheep and Rabbits and on Dietary Niche breadths and Electivities” (1994) 34 Journal of Arid
Environments 491; Dawson TJ and Ellis BA, “Diets of Mammalian Herbivores in Australian Arid, Hilly Shrublands: Seasonal
Effects on Overlap between Euros (Hill Kangaroos), Sheep and Feral Goats, and on Dietary Niche Breadths and Electivities”
(1994) 34 Journal of Arid Environments 491.
76
McLeod, n 75.
77
Munn AJ, Dawson TJ and McLeod SR, “Feeding Biology of Two Functionally Different Foregut-fermenting Mammals, the
Marsupial Red Kangaroo and the Ruminant Sheep: How Physiological Ecology can Inform Land Management” (2010) 59
Journal of Zoology 1.
78
Croft DBR, Montague-Drake R and Dowle M, “Biodiversity and Water Point Closure: Is the Grazing Piosphere a Persistent
Effect?” in Dickman et al, n 74, pp 143-171; Montague-Drake R and Croft DB, “Do Kangaroos Exhibit Water-focused Grazing
Boom and Ben-Ami
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The shift in scientific understanding is highly significant as “[t]he main reason an industry is
approved is almost certainly because of the extent to which kangaroos are regarded as a pest”.
79
Without such justification, the current kangaroo management system significantly loses credibility. As
a result of this shifting knowledge, there have been accompanying shifts in government policy,
80
though not yet to the National Management Plan.
In contrast to the Kangaroo Management Plan 1998-2001 and earlier management plans, the
“overarching goal” of the New South Wales Commercial Kangaroo Harvest Management Plan
2012-2016 is “to maintain viable populations of kangaroos throughout their natural ranges in
accordance with the principles of ecologically sustainable development”. The change in goals in New
South Wales reflects a comprehensive review of the scientific literature, which found that killing of
kangaroos cannot be justified on the basis of damage mitigation.
81
The kangaroo management plans of Queensland and South Australia are also all guided by the
central goal of ecologically sustainable development.
82
As discussed above, Western Australia
continues to classify western grey kangaroos as “pests” and maintains a goal of damage mitigation.
However, even in the other jurisdictions the perception that kangaroos are “pests” and need to be
killed remains widespread.
83
On the whole, there is no proven need to actively reduce the number of free ranging kangaroos
through an annual State-based commercial kill, although individual properties are likely to require
management of kangaroos from time to time. Their population dynamics are mainly driven by rain-fed
pasture (principally grass) biomass.
84
Rainfall in Australia is highly variable, thus the populations of
kangaroos are similarly variable, with long lags to recovery after drought-induced mortality.
85
While
the science casts serious doubt upon the need to manage kangaroo populations, the historical legacy of
treating kangaroos as pests continues to hold sway over policy makers. There is an assumption that
kangaroos must be killed each year without any assessment of whether this is the case or whether any
damage mitigation outcomes have actually been achieved in the previous year(s).
Counting dependent young
There is a major discrepancy across the States in relation to the killing of dependent young. When a
female is shot, any dependent young of hers must be killed (see discussion of the Code below).
However, licences are only provided across the States for killing adult kangaroos. Dependent young
are not counted in the annual quotas or total kill. The situation raises a pressing question as to whether
a licence is required to kill dependent young or whether there is an implied licence to kill dependent
young.
In Queensland, reg 8 of the Nature Conservation (Macropod) Conservation Plan 2005 (Qld)
provides that the holder of a licence to kill a kangaroo must kill pouch young or dependent young if
that young animal is found with a female kangaroo that has been killed under the licence. The
Patterns in Arid New South Wales? A Case Study in Stuart National Park” (2004) 26 Australian Mammalogy 87; Fukuda Y,
McCallum HI, Grigg GC and Pople AR, “Fencing Artificial Waterpoints Failed to Influence Density and Distribution of Red
Kangaroos (Macropus rufus)” (2009) 36 Wildlife Research 457.
79
Pople and Grigg, n 50, Ch 7.
80
On the role of science in law, see eg Muirden A and Bailey J, “Presenting Scientific Evidence in Environmental Court Cases:
How Science and Law Meet” (2008) 25 EPLJ 425.
81
Circular, n 69 at [2.2]; Herbert CA and Elzer A, “Review of Scientific Literature Relevant to the Commercial Harvest
Management of Kangaroos” (Office of Environment and Heritage, 2011). See also Gilroy, n 70
82
The current kangaroo management plans are available at Australian Government, Movement of Plants and Animals
(Department of Sustainability, Environment, Water, Population and Communities, 2011).
83
See eg Scott L, Final Report – Animals in the Wild Sector: Review of the Existing Animal Welfare Arrangements (Australian
Animal Welfare Strategy, 2006) p 2.
84
Caughley G, “Ecological Relationships” in Caughley G, Shepherd N and Short J, Kangaroos their Ecology and Management
in the Sheep Rangelands of Australia (Cambridge University Press, 1987).
85
Bayliss P and Choquenot D, “The Numerical Response: Rate of Increase and Food Limitation in Herbivores and Predators” in
Sibly RM, Hone J and Clutton-Brock TH (eds), Wildlife Population Growth Rates (University of Cambridge Press, 2003).
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 173
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regulation specifies that the dependent young must only be killed if this is done in accordance with the
methods specified in the Code. The shooter must also leave the dependent young at the place where it
has been killed (ie dependent young cannot be sold). Queensland’s regulation explicitly provides an
authority for shooters to kill dependent young although they are not counted.
In contrast, the conservation legislation and regulations in New South Wales and South Australia
do not provide explicit authority to kill dependent young. It is possible that there is an implied
authority to kill dependent young on the basis that this is provided for under the Code. However, a
reading of the legislation indicates that an actual licence is required. For instance, s 5 of the National
Parks and Wildlife Act 1974 (NSW) provides that the young of kangaroos are protected fauna.
Section 98 states that it is an offence to harm protected fauna without a general licence (s 120), an
occupier’s licence (s 121) or a commercial fauna harvester’s licence (s 123). Therefore, it would
appear that a licence to kill dependent young is required in New South Wales and yet is not provided
for in the legislation. While the wording of the legislation is slightly different in South Australia, it
appears that a similar situation exists.
86
In Western Australia, the killing of western grey kangaroos on private land under an open season
notice does not require a licence. This situation only applies to certain zones within Western Australia.
If a dependent young is killed under an open season notice it would appear that no authority is
required.
In Tasmania, reg 37 of the Wildlife (General) Regulations 2010 (Tas) provides that partly
protected wildlife must not be taken except as provided in the licence or permit. The word “take” is
not defined in the Regulations. However, s 3 of the Nature Conservation Act 2002 (Tas) (which is the
parent Act of the Wildlife (General) Regulations) provides a definition of taking wildlife, which
includes killing,
87
and may be used to interpret reg 37.
88
Regulation 13 provides that the commercial
wallaby hunters licence authorises the holder to “take wallaby [sic] during the open season specified in
the licence”. The ambiguity in reg 13 suggests that the killing of dependent young under an open
season would not require a specific licence to do so. Rather, it appears that the killing of dependent
young is covered by such open season licensing.
These differences of status for dependent young between the jurisdictions reflect a major
drawback with a State-based approach to wildlife. Although the open season licensing appears to
provide implied authority to kill dependent young, the same cannot be said of New South Wales and
South Australia’s laws. Queensland’s overt provision of authority to kill dependent young indicates
that counting dependent young could be explicitly dealt with under the legislation and regulations of
other jurisdictions. Alternatively, a male-only kill could be introduced to avoid the killing of
dependent young.
89
Trigger points and the risk of localised extinctions
Another key issue is whether the current regulatory system may expose kangaroos to the possibility of
localised extinctions. The New South Wales Young Lawyers Animal Law Committee argued that the
weaknesses within the regulatory system, combined with other factors such as drought, disease, flood,
habitat modification or loss, and predation, could together threaten the Macropus species.
90
86
In Western Australia, the legislation defines “protected animal” as inter alia “any mammal, bird or reptile indigenous to
Australia”: Wildlife Conservation Act 1950 (WA), s 5. In South Australia, “fauna” means inter alia “any animal indigenous to
any State or Territory of the Commonwealth or the territorial waters of the Commonwealth” and includes “any class or
individual member thereof”. Whilst neither of these definitions explicitly refer to the young of animals, there is no reason to
suggest that such animals are excluded.
87
Section 3 provides: “(5) A reference in this Act to the taking of any wildlife or to the taking of a form of wildlife that is game
includes a reference to the killing, destroying, hunting, pursuing, catching, shooting, netting, snaring or injuring that wildlife or
that form of wildlife.”
88
Acts Interpretation Act 1901 (Cth), s 19.
89
Boom and Ben-Ami, n 8.
90
NSW Young Lawyers Animal Law Committee, n 57, p 4.
Boom and Ben-Ami
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During the 1960s, leading scientists argued that the red kangaroo had become endangered due to
“uncontrolled meat hunting and drought”.
91
Prominent CSIRO researchers like Dr John Calaby feared
that the red kangaroo would become extinct, stating in 1969 that:
Red Kangaroos are not nearly so abundant as is generally thought and that they are subject to great and
sudden decline in numbers due both to overshooting and to drought; where both occur together there
seems to be a very real chance that the species could be reduced to a level from which it cannot
recover.
92
Whilst it is unlikely that any of the four main species could become extinct under the current
regulatory system, localised extinctions could eventuate through overshooting combined with other
stresses. The four big species have declined between 2001 and 2010: red kangaroos by 51%; western
greys by 19%; eastern greys by 62%; and common wallaroos by 65%. Kangaroo populations can
experience quick declines during drought, in some cases halving of populations in a few months.
93
Surveys conducted on a yearly basis are too infrequent to report such declines.
One regulatory mechanism that could be used to mitigate this risk of localised extinctions is
density “trigger points”. In accordance with density “trigger points”, the shooting of kangaroos must
stop once the population of a species falls to a certain level.
94
Trigger points are included in the New
South Wales Kangaroo Management Plan but only as a result of the administrative law challenge in
Wildlife Protection Assn of Australia Inc and Minister for the Environment, Heritage and the Arts
[2008] AATA 1079.
95
If kangaroo populations decline to specific trigger points, then the commercial
killing of the affected species in the affected management zone is to be suspended. These trigger
points provide an important safeguard for the sustainability of the commercial killing. However, this
measure is unique to the commercial kill in New South Wales and is only in place due to court order.
96
Density trigger points should be introduced as a regulatory mechanism across Australia’s commercial
kill zones as a matter of priority.
Compliance with regulatory mechanisms
The effectiveness of any regulatory system depends upon rates of compliance and enforcement.
97
Although studies are limited, there are indications that there may be a culture of non-compliance in the
kangaroo industry. Thomsen and Davies have written that shooters in South Australia regularly kill
kangaroos on properties they perceive to have the greatest kangaroo density and simply attach tags
that have been issued for another property.
98
They argued that this practice occurs so that shooters
may “maintain good relationships with landholders and ensure continued access to land and to quota
for their harvest activities”.
99
91
Frith and Calaby stated: “If any large species of kangaroo is endangered it is the Red Kangaroo, the symbol of the inland
plains…. We have already seen Red Kangaroos in N.S.W. reduced to a fraction of their former numbers in only seven years of
uncontrolled meat hunting and drought”: Frith HJ and Calaby HJ, Kangaroos (Cheshire, 1969) p 33. Also see Marlow B,
“Kangaroos and Men: A Symposium of the Royal Zoological Society of New South Wales, 4 July 1970, Australian Museum”
(1971) 16 Australian Zoologist 124; Kirkpatrick and Amos have argued that the fluctuations in harvest of red and eastern grey
kangaroos from 1954 were due to market demand and prevailing weather patterns: Kirkpatrick and Amos, n 13, p 75.
92
Frith and Calaby, n 91, p 38.
93
Pople (2004), n 48.
94
New South Wales Kangaroo Management Program, effective 1 January 2007 to 31 December 2011.
95
See generally Stone C, “Should Trees have Standing? Toward Legal Rights for Natural Objects” (1972) 45 Southern
California Law Review 450.
96
See generally Preston BJ, “The Role of Public Interest Environmental Litigation” (2006) EPLJ 337; Baird R, “Public Interest
Litigation and the Environment Protection and Biodiversity Conservation Act” (2008) EPLJ 410; McGrath C, “Flying Foxes,
Dams and Whales: Using Federal Environmental Laws in the Public Interest” (2008) EPLJ 324.
97
Records of compliance and enforcement are available in the Annual Reports from New South Wales, Queensland and South
Australia. See eg Payne N, “2010 Annual Report, New South Wales Commercial Kangaroo Harvest Management Plan
2007-2011” (Department of Environment, Climate Change and Water, 2011).
98
Thomsen and Davies, n 60 at 128.
99
Thomsen and Davies, n 60 at 129.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
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Rather than viewing this as a threat to the integrity of the regulatory system, Thomsen and Davies
concluded that the kangaroo industry should be deregulated to allow these illegal activities to occur
more freely. The authors ask “why there is a need for any commercial harvest quota to be
imposed”.
100
There appears to be no clear basis for such deregulation aside from their findings that
shooters regularly breach their licence conditions anyway.
Further research is required to determine the full impacts and extent of these practices. It appears
that a key problem is that enforcement capacity is severely limited because the killing occurs in
remote locations making it difficult to conduct inspections at the point of kill. In 2008, the New South
Wales Land and Environment Court heard a case concerning illegal shooting by a commercial
shooter.
101
Sheanan J commented that these offences are “almost impossible to detect” and that the
industry is “essentially self regulated”. These limitations challenge current ideas about the alleged
sustainability of kangaroo killing.
Managing risk and uncertainty: Adaptive management and the precautionary
principle
Ensuring the sustainability of the kangaroo industry necessarily entails management of risk and
uncertainty. Uncertainty refers to the fact that aspects of the industry and its impact upon kangaroo
populations are not precisely predictable.
102
It may be that the likelihood of occurrence of a particular
event in a given circumstance is unknown, or that there are aspects of the management that are beyond
the control of decision-makers.
Risk can have a range of definitions depending upon the discipline. However, within the context
of conservation of kangaroos, it refers to stressors (or hazards) to which the industry is exposed (as a
probability value) and that would be of an adverse nature. The assessment of risk involves value
judgments: first, as to what constitutes a risk; and secondly, as to what is an unacceptable level of risk.
One method of managing risk and uncertainty is to apply the precautionary principle, which
provides that practices that have the potential to harm the environment or human health should be
banned until proven safe.
103
It also requires that measures to prevent or reduce harm should not be
delayed due to lack of scientific certainty. The precautionary principle shifts the burden of proof from
the opponents of a practice to the proponents.
104
This approach is reflected in the phrases “better safe
than sorry” and “above all, do no harm”.
However, adaptive management has been the primary method through which decisions-makers
have dealt with uncertainty around the kangaroo industry.
105
Adaptive management refers to a “learn
by doing” approach whereby the management is revised and changed through a process of
“experimentation, evaluation, and adjustment of policies and procedures”.
106
Pople argues that at this
time improved understanding of kangaroo biology is not necessarily going to avoid overharvesting and
100
Thomsen and Davies, n 60 at 131.
101
Morris v Department of Environment and Climate Change [2008] NSWLEC 309.
102
See Pople (2008), n 48.
103
See generally Nagorcka F, “Saying What you Mean and Meaning What you Say: Precaution, Science and the Importance of
Language” (2003) 20 EPLJ 211; Gullett W, “Environmental Protection and the ‘Precautionary Principle’: A Response to
Scientific Uncertainty in Environmental Management” (1997) 14 EPLJ 52; Bodansky D, “Scientific Uncertainty and the
Precautionary Principle” (1991) 33(7) Environment 4; Goklany IM, The Precautionary Principle: A Critical Appraisal of
Environmental Risk Assessment (Cato Institute, 2001); Wyman L, “Acceptance of the Precautionary Principle – Australian v
International Decision-Makers” (2001) 18 EPLJ 395; Sperling K, “If Caution Really Mattered” (1999) 16 EPLJ 426.
104
See Leatch v Director-General of National Parks & Wildlife and Shoalhaven City Council (1993) 81 LGERA 270. Compare
Nicholls v Director-General of National Parks & Wildlife (1994) 84 LGERA 397.
105
Gilroy, n 70; Pople (2004), n 48; Ampt P and Baumber A, “Building Connections between Kangaroos, Commerce and
Conservation in the Rangelands” (2006) 33(3) Australian Zoologist 398.
106
Balint et al, “Managing Wicked Environmental Problems: Integrating Public Participation and Adaptive Management”
(paper presented at the National Convention of the Society of American Foresters, 2006) p 7. See generally Lee KN,
“Appraising Adaptive Management” (1999) 3(2) Conservation Ecology 3; Allan C and Curtis A, “Learning to Implement
Adaptive Management” (2003) 6(1) Natural Resource Management 25.
Boom and Ben-Ami
(2013) 30 EPLJ 162176
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unwanted side-effects. Rather, the complexities of ecological systems dictate that this is best done as
experimental or adaptive management, accompanied by conservative quotas and reserves.
107
The advantage of adaptive management is that it provides a method of managing uncertainty. On
the other hand, it is not an appropriate strategy where there is a lack of resilience in the ecosystem or
within the impacted species populations.
108
As discussed above, within the context of other increasing
threats to kangaroo population resilience, such as the impacts of extended drought, there is a risk that
the killing of kangaroos could lead to localised extinctions. A further problem is that the long-term
risks of the industry to the wider ecosystems within which the killing occurs is not known.
Furthermore, the strategy of adaptive management does not take account of the social components
of “wicked problems”.
109
Adaptive management does not facilitate agreement when there are different
views on the nature of the problem, as there are over the kangaroo industry.
110
Thus, it does not pay
sufficient regard to other equally relevant lenses through which kangaroo management may be viewed,
such as the views of Indigenous Australians, environmental organisations or animal protection
organisations.
111
Using the precautionary principle in the context of kangaroo management could lead to a higher
degree of protection for kangaroos. However, application of the precautionary principle requires that
there are “threats of serious or irreversible environmental damage”.
112
In Wildlife Protection, the
Administrative Appeals Tribunal (AAT) concluded that such threats did not exist in implementing the
New South Wales plan. On the other hand, the AAT was of the view that the plan did not encompass
a response to the occurrence of a sudden and significant decline in kangaroo numbers. It was on this
basis that the AAT mandated the introduction of density trigger points. However, it is arguable that
without density trigger points kangaroo management plans may pose threats of serious or irreversible
environmental damage to kangaroo populations. The threat is that between surveys a local kangaroo
population may suddenly collapse, and that without a suspension in killing localised extinctions could
occur. As discussed above, aside from New South Wales, no other States have yet introduced density
trigger points. This appears to be contrary to the precautionary principle. Even if the precautionary
principle cannot always be applied to the commercial kangaroo industry, a “cautious approach” would
always be justifiable.
113
A further issue arising from Wildlife Protection in terms of risk is the need for reliable monitoring
measures. The AAT was of the view that the plan provided adequate measures to monitor
107
Pople AR, Cairns SC and McLeod SR, “Increased Reproductive Success in Older Female Red Kangaroos and the Impact of
Harvesting” (2010) 35 Australian Zoologist 160.
108
Balint et al, n 106.
109
Balint et al, n 106, p 9; Johnson F and Williams K, “Protocol and Practice in the Adaptive Management of Waterfowl
Harvests” (1999) 3(1) Conservation Ecology 8; Gunderson LH, “Resilience, Flexibility and Adaptive Management: Antidotes
for Spurious Certitude?” (1999) 3(1) Conservation Ecology 7; Gunderson LH, Holling CS and Light SS, “Barriers Broken and
Bridges Built: A Synthesis” in Gunderson LH, Holling CS and Lights SS (eds), Barriers and Bridges to the Renewal of
Ecosystems and Institutions (Columbia University Press, 1995); McLain RJ and Lee RG, “Adaptive Management: Possibilities
and Pitfalls” (1996) 20(4) Environmental Manager 437; Allan C and Curtis A, “Nipped in the Bud: Why Regional Scale
Adaptive Management is Not Blooming” (2005) 36(3) Environmental Management 414.
110
Ludwig D, “The Era of Management is Over” (2001) 4 Ecosystems 758; Holley C, “Public Participation, Environmental Law
and New Governance: Lessons for Designing Inclusive and Representative Participatory Processes” (2010) 27 EPLJ 360.
111
See generally Senatori MA, “The Second Revolution: The Divergent Paths of Animal Activism and Environmental Law” in
Goldstein RJ (ed), Environmental Ethics and Law (Ashgate, 2004); Rawles K, “Sustainable Development and Animal Welfare:
The Neglected Dimension” in Turner J and D’Silva J, Animals, Ethics & Trade: The Challenge of Animal Sentience (Routledge,
2006); Singer P, “Not for Humans Only: The Place of Nonhumans in Environmental Issues” in Light A and Rolston H III (eds),
Environmental Ethics (Wiley-Blackwell, 2002).
112
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3.
113
The precautionary principle shifts the burden of proof to the advocates (ie government agencies) who must show that the
practice will not cause serious or irreversible environmental harm. Therefore, if the precautionary principle does not apply the
burden of proof would remain with any challengers in merits review.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 177
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compliance.
114
Although the AAT also noted that the Applicant criticised the fact that there was no
monitoring of activities of shooting “in the field”, it did not appear to account for the possible
implications of this failure to inspect at the point of kill. Indeed, the research of Thomsen and Davies
(discussed above) indicates that non-compliance may be fairly widespread amongst shooters. While
inspections of carcasses at chillers can identify carcasses that are non-head shot, they cannot
necessarily ensure that kangaroos have been shot at the correct locations or that the conditions
regarding killing of dependent young and injured kangaroos have been complied with. There is also
significant variety across the States in terms of reporting of compliance results. For instance, New
South Wales’ annual reports disclose the number of inspections conducted of chillers and dealers.
115
In contrast, Western Australia’s annual report for 2010 does not disclose the number of inspections
conducted.
116
Without such data it is impossible for the public to assess the adequacy of monitoring
measures.
Administrative appeals
While neither tribunals nor courts have the power to determine policy on kangaroo management,
117
merits review can help to improve decision-making and the decision-making framework.
118
Merits
review appeals to the AAT concerning Commonwealth approval of wildlife trade management plans
have provided an important “safety net” for improving the management of kangaroos. In a merits
appeal, the court or tribunal reconsiders a decision made by someone who has been given the power
by legislation to make the decision.
119
Such appeals are only available when expressly provided by
legislation.
120
If successful, a merits appeal will result in the original decision being overturned and
substituted with the court or tribunal’s decision.
As mentioned above, in Re Wildlife Protection Association of Australia and Minister for the
Environment, Heritage and the Arts [2008] AATA 717; [2008] AATA 846; [2008] AATA 1079 the AAT
imposed the development of density trigger points in response to its view that the New South Wales
plan did not provide a mechanism to manage an unusual decline in kangaroo populations. Similarly, in
Re Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage
[2006] AATA 29; [2006] AATA 953; [2007] AATA 1091 the AAT required the Tasmanian plan to be
amended to mandate the monitoring of the age and sex of the wallabies in order to inform
understanding of the impacts of commercial killing upon the species.
A further example is found in a case under the previous legislation. In this case, the AAT found
that the 1985-1986 Queensland kangaroo management plan was marked by errors and inconsistencies.
The AAT’s view was that the plan seemed to be “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”.
121
The AAT stated that the government agency had failed
to appreciate its responsibilities under the Administrative Appeals Tribunal Act 1975 (Cth)
122
and
114
Wildlife Protection Assn of Australia Inc and Minister for the Environment, Heritage and the Arts [2008] AATA 1079 at [60].
115
See New South Wales Government, NSW Commercial Kangaroo Harvest Management Plan (Office of Environment and
Heritage, 2012).
116
Western Australia’s annual report is available at Northern Territory Government, Kangaroo Management in Western
Australia (Department of Environment and Conservation, 2012), http://www.dec.wa.gov.au/management-and-protection/
animals/kangaroos.html viewed 21 January 2013.
117
See Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319.
118
Cabarrús J, “Merits Review of Commonwealth Environmental Decision-making” (2009) 26 EPLJ 113 at 115.
119
Bates G, Environmental Law in Australia (7th ed, LexisNexis Butterworths, 2010) p 626.
120
Lyster R, Lipman Z, Wiffen G, Franklin N and Pearson L, Environmental and Planning Law in New South Wales (3rd ed,
The Federation Press, 2012) p 40.
121
Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [61].
122
Eg in failing to provide adequate documents for the review of its decision: Re Fund for Animals Ltd and Minister of State for
Arts, Heritage & Environment [1986] AATA 151 at [15], [24]-[29].
Boom and Ben-Ami
(2013) 30 EPLJ 162178
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under the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth).
123
The AAT found
that the Minister did not have the power to approve the plan because it was so inconsistent with the
legislation.
124
However, merits review appeals to the AAT concerning kangaroo management plans do not
determine the legality of commercial killing of kangaroos. This is because the Minister’s decision to
approve a plan as an approved wildlife trade management plan under the EPBC Act only determines
whether the products of that killing can be exported from Australia. That is, even if the decision to
approve a plan is reversed, the commercial killing of kangaroos would continue nonetheless.
125
In addition, legislative amendments to the EPBC Act in 2006 removed the right to appeal
decisions made personally by the Minister, which came into force on 19 February 2007.
126
This
significant change means that public interest groups are no longer able to challenge the Minister’s
approval of kangaroo management plans. If a delegate of the Minister approves a plan such a decision
would be subject to merits review. However, it is unlikely that the declaration of an approved
kangaroo management plan would be made by anyone other than the Minister.
127
For example, the
New South Wales Commercial Kangaroo Harvest Management Plan 2012-2016 was declared an
approved wildlife trade management plan by the Minister on 15 December 2011.
128
Nonetheless, judicial review may be possible under the Administrative Decisions Judicial Review
Act 1977 (Cth) (ADJR Act). Judicial review refers to a matter where the applicant claims that in
making a decision, the decision-maker made an error in law.
129
If the court decides that there was an
error in law, it may declare the decision invalid. The decision-maker is able to subsequently make the
same decision, provided that the law is followed correctly.
130
Such a case may be brought by an
applicant if they believe that the Minister did not follow the proper legal processes.
Applicants seeking to bring a review under the ADJR Act, or any State equivalent, would face a
high hurdle with regard to standing. The applicant has to have a “special interest” in the matter. In
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; 45 LGRA 245,
131
the
High Court found that the Applicant did not have standing. The High Court held that the interest must
go beyond that of members of the public and must involve more than a belief that the law should be
observed or certain conduct prevented.
132
It is even more difficult to bring administrative appeals at the State level. For instance, although
the New South Wales kangaroo management plan must meet the requirements provided in the EPBC
Act, there are no requirements under State law that the plan must meet. However, Animal Liberation
brought a merits review challenge to a decision by the ACT Conservator of Flora and Fauna to grant
123
Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [29].
124
Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [96].
125
Re Wildlife Protection Assn of Australia Inc and Minister for the Environment & Heritage [2006] AATA 953 at [4]; Re
Wildlife Protection Assn of Australia Inc and Minister for the Environment, Heritage & Arts [2008] AATA 717 at [3].
126
Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth).
127
Kangaroo Protection Coalition, Last AAT Appeal (Kangamail 23, Kangaroo Archives, undated), http://www.kangaroo-
protection-coalition.com/kangaroo-archives23.html viewed 4 January 2013.
128
Commonwealth of Australia Gazette No GN 50, Declaration of an Approved Wildlife Trade Management Plan
(21 December 2011). The Minister’s approval was subject to conditions, including: “Before commercial harvesting of the euro
(Macropus robustus erubescens) the New South Wales Office of Environment and Heritage (or its equivalent agency) must
demonstrate that the survey methods to be used for the euro can provide reliable estimates of population size.”
129
Bates, n 119, p 626.
130
Lyster et al, n 120, p 40.
131
Concerning a decision to approve the development of a resort and tourist area in Farnborough Queensland.
132
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 per Gibbs J. Also see North Coast Environment
Council Inc v Minister for Resources (1994) 55 FCR 492 (standing was established to seek reasons from the Minister for a
decision to grant a licence to export woodchips).
Kangaroos at a crossroads: Environmental law and the kangaroo industry
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a licence to the Department of Defence to non-commercially kill 7,000 eastern grey kangaroos.
133
Animal Liberation established standing because of the unusual fact that the core statute allowed appeal
to the tribunal, and contains a broad standing requirement.
134
The tribunal found that Animal
Liberation’s constitution included in its objects relevant provisions concerning animal welfare.
135
Although Animal Liberation established standing and obtained an injunction pending the
outcome, its case was ultimately unsuccessful. The expert witnesses of the Applicant and Respondent
had presented conflicting evidence as to the scientific issues, including whether the kangaroos were
having an adverse ecological impact on the concerned land. The tribunal ultimately decided that where
the expert evidence conflicted, it would prefer the evidence of the Respondent’s expert witness, on the
basis that he had “spent virtually the whole of his professional career in the local field”.
136
However,
the case demonstrates that in certain circumstances there may be scope for administrative appeals of
kangaroo management at the State level.
Other related cases include administrative appeals brought by Wildcare Queanbeyan Inc, a group
based in Queanbeyan that cares for native animals. In Wildcare Queanbeyan Inc v Conservator of
Flora and Fauna (Administrative Review) [2009] ACAT 31, the applicant sought review of the
Conservator’s decision to not grant it a licence to take 35 eastern grey kangaroo dependent young
from the ACT to New South Wales. The Applicant sought the licence on animal welfare grounds.
Ultimately, it was unsuccessful in this case. However, when Wildcare brought a similar case in 2011,
the case was successful.
137
The tribunal was of the view that there was no issue that could support the
refusal of the licence and that there were animal welfare considerations to favour the granting of the
licence. Again, this case demonstrates the important role that administrative appeals can play in
improving the management of kangaroos in Australia.
CONCLUSION
The environmental law framework that governs the kangaroo industry primarily seeks to facilitate the
killing of kangaroos to contain their “deleterious effects” and to use them as a “renewable natural
resource”. Conservation of kangaroos or their ecosystems is not the central goal. Rather, conservation
serves as a limiting factor in the environmental law framework to temper the overwhelming
commercial interests of landholders and shooters.
The sustainability of the kangaroo industry depends upon the strategy of adaptive management.
Under this strategy, the risks and uncertainties of conducting the world’s largest commercial kill of
land-based wildlife is managed through “learning by doing”. This approach must be tapered by the
precautionary principle, which should rely on robust population data, policy framework and
enforcement capability. A key challenge to national and State population estimates of kangaroos in
commercial killing zones is that the annual aerial surveys carry a significant error, and periodic
revisions of the correction factors undermine the ability of surveys to convey long-term trends in
kangaroo populations. Regional populations are even more difficult to monitor due to potentially rapid
population declines during extreme climate events such as extended drought.
There are a number of policy issues that currently undermine the ability of managing bodies to
practice the precautionary principle, and reforms could be introduced across the jurisdictions to
address these weaknesses. First, all kangaroo species in all jurisdictions should be a protected species
and no longer designated as “pests” in some. Secondly, governments should either introduce a
male-only kill or explicitly provide licences for the euthanasing of dependent young orphaned by the
industry. Thirdly, density trigger points should be introduced as a mechanism across all the
133
Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17; [2009] ACAT 9.
134
ACT Civil and Administrative Tribunal Act 2007 (ACT), s 22Q(2).
135
Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 9 at [11].
136
Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 9 at [124].
137
Wildcare Queanbeyan Incorporated v Conservator of Flora and Fauna (Administrative Review) [2011] ACAT 68.
Boom and Ben-Ami
(2013) 30 EPLJ 162180
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commercial kill zones to ensure that if kangaroo populations decline to threshold densities, then the
killing is suspended in the affected zones. Lastly, adherence to weight limits should be made
mandatory.
A conservative management approach should rely on an effective regulatory system, which is
dependent upon rates of compliance and enforcement. However, in South Australia there may be a
culture of non-compliance, suggesting an untenable management system. Further, there are indications
that there are problems with enforcement (at least in New South Wales) due to the scale and remote
nature of the kangaroo industry. Research is urgently required on the level of compliance and
enforcement of the laws governing kangaroo killing and possible mechanisms of improving the
regulatory system.
Scientific evidence has cast doubt on the need to manage kangaroo populations through
State-based kangaroo management programs. Damage mitigation should be assessed on a
property-by-property basis. Although there is a common perception that kangaroos are overabundant
to the detriment of farming practices (pastoralism and cropping) and need to be killed for damage
mitigation purposes, evidence of such a need is lacking and its effectiveness is not audited. While
some jurisdictions have updated their laws and policies to reflect the current science, this has not
occurred in some areas. The shift in understanding of the impact of kangaroos on traditional farming
practices negates a key aim of the National Kangaroo Management Plan to “contain the deleterious
effects” of kangaroos. Further, the numerous issues compromising the ability of management agencies
to implement the precautionary principle in conservatively managing the commercial kangaroo kill
undermine the third aim of the Plan. Therefore, there is a pressing need for Australian governments to
reassess the reasons for and against the management of kangaroo populations through commercial
killing.
Kangaroos at a crossroads: Environmental law and the kangaroo industry
(2013) 30 EPLJ 162 181
© 2013 Thomson Reuters (Professional) Australia Limited
for further information visit www.thomsonreuters.com.au
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