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Administrative Appeals Tribunal

Re The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage
Commonwealth of Australia
(2006) 42 AAR 262


Case Details
Printable Version
Summary:   Zoos in New South Wales and Victoria sought to import five Asian elephants. After an initial hearing, further evidence was sought in relation to the condition and nature of the facilities at the zoos. The Tribunal decided that the importation of the elephants should be in accordance with a permit issued under s 303CG of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Judge Downes J (P), Ettinger (Senior Member) and Dr Alexander (Member) delivered the opinion of the court.


Opinion of the Court:
  1. On 7 December 2005 we published reasons relating to our consideration of the appeal that far. We were not able then finally to determine the matter and accordingly, our reasons were interlocutory and led only to our adjourning the matter for the provision of further evidence.
  2. When the matter was relisted on 15 December 2005, Mr Rares SC, appearing for the applicants, sought to put submissions relating to our reasons. The thrust of the submissions was that the Tribunal had no power to give reasons addressing some issues before it while leaving others outstanding and that adopting this course involved a denial of procedural fairness. He said this:
“We say the Tribunal has decided this matter and has decided it in favour of my clients because the Tribunal has given published reasons in which it has made adverse conclusions on a large number of issues against my clients without giving them any further opportunity to persuade the Tribunal that the Tribunal got those aspects wrong in circumstances where the Tribunal has said it is not satisfied following a hearing at which the very issues which now are the subject of seeking further evidence from the Zoos were hotly in issue where the Tribunal on a number of occasions repeatedly drew the Zoo’s attention to the fact that the flooring issues were not the matter or troubling the Tribunal where they put up a response to the Tribunal and now what has happened is that the Tribunal has said, we have not satisfied you on a large range of issues yet the other side has also not satisfied you on critical issues but they are to be given further opportunity to satisfy you and we say that just can’t be done, there is no power under the Act ...”

  1. At the end of his submissions he said this:
“Section 43 allows you to give your reasons for decision. You’ve done that. You don’t get a chance to give reasons for decision and then offer new opportunities to deal with this and the procedures that the Tribunal has envisaged will lead, in our submission, to substantive procedural unfairness and is beyond power and for those reasons, the Tribunal ought to come to the view that it expressed in paragraph 89 that the Tribunal was not persuaded that what the zoos had put forward is sufficient. That is the correct and preferable decision”.

  1. Although there seems to be some confusion in Mr Rares’ submissions between whether the Tribunal should simply have determined the matter in favour of his clients on the evidence before it, or whether it should have, without giving reasons, given both sides the opportunity to adduce further evidence, the substance of his complaint is clear. We do not think it has any merit.
  2. At a practical level it seemed to us that it would be helpful to the parties, when we had reached conclusions on some matters which did not require further evidence, to publish our reasons for those conclusions. This would assist the parties to understand the context in which we proposed to invite the tendering of further evidence on other matters. It does not seem to us that it would have been in anyone’s interests, least of all the applicants, to withhold our conclusions and invite further evidence without explanation.
  3. Part of the error in Mr Rares’ submissions lies in a failure to recognise that the Tribunal exercises executive or administrative power and not judicial power. However, it is not clear that the course we have adopted could not be adopted by a court and we propose first to explore that possibility.
  4. Where courts are dealing with applications for the exercise of statutory powers it is not unusual for judges to give decisions in principle and then invite further evidence and submissions relating to matters of detail. We have in mind, for example, applications for the approval of schemes of arrangements for companies, for the reduction of capital of companies and for the variation of restrictions of covenants on land. In these kinds of case judges frequently give indications of what evidence will be needed to justify making orders under the legislation. This is so even when applications are contested, although that cannot alter the principle. In addition, in these kinds of application it is usual for two hearings to take place. In the first hearing the judge gives directions as to the steps that need to be taken and the evidence which needs to be adduced before the matter will be finally determined.
  5. We do not think that these practices are confined to applications for the exercise of a discretion under a statute. Judges frequently give reasons for decision and then invite further submissions relating to the orders that should be made. It is not uncommon for further evidence to be adduced as to the forms of order.
  6. We are not acting judicially but making an administrative decision. We are not resolving a dispute. The issues before us are not issues defined by pleadings. Our obligation is to make the correct or preferable decision relating to the matter that is before us.
  7. The decisions we are reviewing were originally made by the Commonwealth Minister for the Environment and Heritage. When the applicants asked the Administrative Appeals Tribunal to review those decisions the Tribunal became the body empowered by the Parliament to make the final decisions. The parties before us have the opportunity to adduce evidence and put submissions to us as to how we should decide the matter. They are entitled to natural justice. It is wrong, however, to see the matter before us as a dispute inter partes. If the parties had settled their differences they could not have replaced the decision made by the Minister with another decision. When the application for review was made, further decision-making power was removed from the Minister. The matter could only be compromised by agreement with the parties if the Tribunal, pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth), decided “it to be appropriate” to resolve the matter in the way proposed. If this was a case of judicial review before a court the parties would not be so limited. Since the decision-making power would not have been removed from the decision-maker there would generally be no reason why the decision-maker could not substitute a fresh decision in accordance with the agreement reached between the parties.
  8. It follows that the Tribunal is not limited by issues raised by the parties nor by the evidence presented by the parties. It has power, pursuant to subs 33(1)(c) of the Act to “inform itself on any matter in such manner as it thinks appropriate”. Pursuant to a recent amendment to s 33, “the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding” (subs 33(1AA)).
  9. In Bushell v Repatriation Commission [1992] HCA 47(1992) 175 CLR 408 at 424, 425, Brennan J, the first President of the Tribunal and then a judge of the High Court of Australia, said this:
“Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material.”

In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Gleeson CJ said this (at [21]):

“It is agreed on all sides that the hearing contemplated ... is not a trial. Subject always to the overriding requirement of procedural fairness, the object of the occasion is to hear evidence and receive arguments in the most useful and efficient manner. This will often involve flexibility in the order of proceedings.”

Although the Chief Justice was referring to a migration tribunal, the principles which he enunciated seem equally appropriate to all merits review tribunals.

  1. In its most recent comment on these issues the High Court of Australia may have taken the investigatory functions of tribunals a step further. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [26] it said, referring to the Refugee Review Tribunal, but in a context which did not confine its application to that Tribunal:
“The Tribunal was not an independent arbiter charged with deciding an issue joined between adversaries. The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed.”

  1. Because the role of the Tribunal is not merely to resolve disputes relating to issues raised by parties but to make the correct or preferable administrative decision with respect to the matter before it, the approach we have adopted seems particularly appropriate. First, it would have been wrong for us to dismiss the matter because we were not satisfied on the evidence before us when we had the ability to procure the presentation of necessary further evidence. Secondly, to dismiss an application, when a fresh application based on evidence not originally put before the Tribunal might be successful, would defeat the spirit behind the provisions of subs 33(1)(b) requiring proceedings in the Tribunal to be “conducted with ... little formality ... and with ... expedition” and s 2A requiring the Tribunal to be “economical, informal and quick”.
  2. In the circumstances and notwithstanding the submissions put on behalf of the applicant, we see nothing untoward in the way we have approached this matter. Indeed, we consider that giving the parties the opportunity to address outstanding matters concerning the Tribunal after being informed what the Tribunal’s thinking was has improved the quality of the result.

Hearing of 17 January 2006

  1. Ms L Byrne of counsel represented the applicants at the resumed hearing on 17 January 2006. The parties had indicated they required Mr Roocroft, Dr Atkinson, Ms Mumaw, Mr Cooper and Mr Miller (who had each filed affidavits) for cross-examination. At the time of the hearing Mr Miller was indisposed in Thailand and Mr Roocroft could not be located. We were told he may have been travelling to Europe. It was agreed by the parties that neither Mr Roocroft nor Mr Miller would be called. Their affidavits were read, with certain parts omitted. Dr Atkinson gave evidence by speaker telephone from the UK concurrently with Ms Mumaw and Mr Cooper who were present at the hearing.
  2. The matters upon which we wished to hear further evidence and which the parties who gave oral evidence and affidavits were required to address at the January 2006 hearing, were:
Taronga Zoo
(1) Precisely what facilities are to be put in place to provide sand or sandy loam banks and mud wallows. It will need to be demonstrated that they will be sufficient for five elephants. This will require sketch plans and rough specifications.
(2) Exactly what are the specifications for the rubberised flooring presently laid.
(3) What steps are proposed to be taken towards improving the effectiveness of the barn floors in encouraging the elephants to lie down. This evidence should take into account the evidence on this issue in the proceedings including the relevant provisions of the Elephant Management Guidelines.
(4) Precisely what is proposed for the refurbishment of the old Elephant enclosure. This will require sketch plans and rough specifications.
(5) Further evidence should be provided on what plans have been prepared relating to the proposed daily walks of the female elephants to the male elephant enclosure.
(6) What regime will be put in place if the proposals for these walks are not achievable.”

Melbourne Zoo
(1) Are the existing mud wallows and sand or sandy loam banks sufficient to provide for the needs of five elephants?
(2) Exactly what are the specifications for the rubberised flooring presently laid.
(3) What steps are proposed to be taken towards improving the effectiveness of the barn floors in encouraging the elephants to lie down. This evidence should take into account the evidence on this issue in the proceedings including the relevant provision of the Elephant Management Guidelines.”

Mud Wallows or Sand and Sandy Loam Banks

  1. In order to cater for the behavioural and biological needs of the elephants and to avoid stereotypical behaviour developing, the elephants will need proper housing and facilities. The climate of Sydney and Melbourne requires sleeping and resting facilities both indoors and outside. At the end of the first hearing there were unanswered questions in regard to mud wallows, sandy loam banks and indoor flooring and resting facilities.
  2. Mr Cooper said that two mud wallows for the five elephants at Taronga Zoo would be adequate because the elephants would mould the wallows themselves to an appropriate size and shape. He said the elephants would benefit from competing for space from time to time. He considered that different patterns of behaviour would take place at varying stages, with one or two, or even the whole group, competing for the mud wallows.
  3. Dr Atkinson emphasised that mud wallows were good for the elephants’ psychological and physical health. He said that choice lay at the heart of animal welfare. He said it was important to ensure the wallows would be of sufficient size to accommodate the elephants as they grew. He advocated having five wallows, one for each of the elephants. This would allow them to be separate if they wanted to. He did add, however, that he was not aware of any scientific evidence of studies done in the wild which looked at numbers of mud wallows and numbers of elephants using them. He agreed that six metres by four metres by two metres deep was adequate, adding that the elephants would modify them, but that review of the adequacy of the wallows was essential. When further questioned, he described the appropriate depth of the wallows as a depth accommodating the flanks of an elephant lying down.
  4. We do not consider that one wallow per elephant is necessary to meet their behavioural and biological needs. We note Dr Atkinson’s evidence that there is no scientific basis for that recommendation. It would be a mistake to look at the needs of elephants by reference to human needs or aspirations. We are satisfied that two mud wallows is sufficient to begin with, provided that the Zoos have the facilities to expand them. This will require the wallows always to contain sufficient water and for there to be sufficient room for expansion. A minimum of two mud wallows of six metres long by four metres wide which are of sufficient depth for an elephant or elephants to lie down would be adequate for the present. The wallows must be available to the elephants upon their arrival and the adequacy of the number and size of the wallows must be monitored, modified as necessary and reported on within 12 months. We have reflected that in the conditions to the decision which appear below.
  5. Melbourne Zoo presently has two mud wallows totalling approximately 26 square metres. It is intended to enlarge them to a total of 84 square metres. We are satisfied with the proposed modification provided it is in place before the elephants arrive. Indeed, the extra area intended to be made available in Melbourne Zoo has caused us some concern as to whether what is proposed at Sydney Zoo is adequate. We have concluded that it is adequate subject to monitoring and the opportunity for expansion.
  6. Taronga Zoo does not yet have any mound for the elephants to use for resting, but one was proposed. Two mounds are now proposed. We consider that two loose earth mounds of approximately six metres by four metres by two metres in height must be provided for the elephants’ use. The earth must be regularly maintained and the size and quantity of the mounds reviewed and reported upon within 12 months.
  7. Melbourne Zoo proposed nine mounds. We consider that they will be adequate. Notwithstanding the discrepancy between the number of mounds proposed by Melbourne Zoo and Sydney Zoo, we conclude that the Sydney proposal is adequate because of the extensive monitoring we will require.

Flooring and Sleeping Facilities in the Barns

  1. During our site inspections, we saw the rubberised covering on the floor of the barns or indoor enclosures, which are set up as individual stalls for sleeping or veterinary and other treatment areas. At Taronga Zoo the floor is covered with a product called “Rubbertuff” and at Melbourne Zoo a product called “Rubaroc”. It is undisputed that Rubaroc has more cushioning, and is softer than Rubbertuff. We are concerned, of course, that adequate provisions be made for the elephants’ comfort.
  2. Mr Cooper’s evidence was that Rubaroc was trialled at Auckland Zoo where it failed within 15 to 18 months because the elephants dug it up. There was some evidence of them ingesting it. He acknowledged that it had been used successfully at Melbourne Zoo. He said, however, that there had been problems with its use at the Western Plains Zoo. He said that Taronga Zoo proposed to trial it in one stall in the barn at Taronga. He added that if the Tribunal considered that all the stalls should have a Rubaroc surface, he would be prepared to install it.
  3. The Tribunal should not be overly prescriptive. The Zoos should be able to make changes and to otherwise adapt to circumstances as they arise. This is true of floor surfaces. Accordingly, we see virtue in Taronga Zoo trialling the two floor surfaces. However, the trial should be in two of the four stalls. If Rubbertuff does not create undue problems it should be laid throughout the barns. Emphasis should be placed on comfort rather than durability in resolving the issue. Our views will be reflected in the conditions we propose.
  4. Part of the testing process should include evaluating the two surfaces in conjunction with the evaluation of different materials for the elephants to rest on. Melbourne Zoo is proposing an extensive trial of sand and other materials in its barns. The results of these trials will help guide Taronga Zoo. However, Taronga Zoo should also trial different materials on its two different surfaces. The materials to be trialled could include sand, soil, sandy loam and sawdust. The trial materials should generally be placed in piles of at least one metre in height but so that the elephants can reshape the mound. It may prove appropriate for the mounds to be higher. With the provision of CCTV footage, Zoo personnel will be able to assess the optimum bedding material and be able to modify it according to the elephants’ preferences, reporting as they must to the Minister after a year has elapsed.

The Walks

  1. Another matter which concerned us was the proposal that the elephants at Taronga Zoo would be taken on walks around the zoo. One issue in particular is that when the Taronga Zoo male elephant reaches maturity, at approximately eight years, he will have to live in his own remotely located enclosure, 230 metres away from the other elephants. Unless the females are brought to him, or he to them, he will be isolated. In Melbourne, the enclosure for the male is adjacent to the enclosure for the females. We note Dr Atkinson’s view that the walks were also necessitated by the fact that the Sydney elephants did not have enough room to move around in their enclosure.
  2. Taronga Zoo proposes to walk one or more of the females to the male on a daily basis. We note the evidence that in the wild the male comes to the female herd and that the females are generally in a position to reject the male. Clearly that will not be possible at Taronga Zoo and we accept that zoos cannot exactly replicate what happens in the wild.
  3. We accept the necessity for the walks. That leads to concerns regarding what effect the meeting with the male would have, how safety issues regarding the public, which are, of course, paramount, would be handled and what contingency plans are in place in the event the walks had to be suspended for a time or permanently. We are also mindful that the walks will involve intensification of training and that the access at a particular time of the male with particular females might not be welcome or desirable.
  4. Mr Cooper referred to Mr Miller’s affidavit and gave evidence that walks would be initiated with staff experienced in walking elephants. He also mentioned the possibility of walks outside public opening hours and mentioned that some of the elephants proposed to be imported were already accustomed to walking because they had been on the streets of Bangkok. On the subject of what would happen if walks had to be suspended, Mr Cooper emphasised that the designated exhibit space exceeded ARAZPA standards and those in some other countries, in particular North America, so that walks were “the icing on the cake”. He said that there were many activities planned to keep the elephants “invigorated and intellectually stimulated” and that if they found one elephant difficult, it did not mean others would be stopped from participating in the walks. Mr Cooper also mentioned that Taronga’s former elephant manager had walked elephants around the Zoo for more than 30 years, without incident, sometimes leading three elephants. Mr Cooper acknowledged that, although not presently contemplated, a covered closed walkway could be constructed if necessary and that having the bull in an adjacent enclosure, as in Melbourne, was an option. He said that in an extreme case there were other options, including trucking elephants from one enclosure to the other, or ultimately a move for the male to the Western Plains Zoo. We have noted that Melbourne Zoo resumed elephant walks in 2002 after a period of cessation and that this has proceeded without incident or problems.
  5. We have concluded that the proposed walks are a real practical possibility. They will assist with avoiding foot and weight problems and be beneficial to the elephants’ health. Remedies are available to avoid risks and deal with problems. However, one continuing concern we have is to avoid the possibility of the isolation of the male elephant as the ultimate remedy if all else fails. To avoid this Taronga Zoo has agreed that it will ensure that the male elephant has appropriate opportunities for physical contact with one or more of the female elephants for at least 9 months in any 12 month period.

Refurbishment of the Old Elephant Enclosure for the Male Elephant

  1. We note that plans have been supplied for the new bull enclosure and we are satisfied it will be suitable. The enclosure should be completed by the time Gung reaches the age of eight or potential maturity and we will make the completion of the enclosure by the end of 2008 a condition of the issue of the permit.

Conclusion

  1. In coming to our decision we noted the differing views of the various experts with regard to the welfare of the elephants and the abilities of the Zoos to meet their needs. However, we consider that the Zoos have demonstrated a commitment to address the needs of the elephants as the issues become clearer with the benefit of further observation and experience. There is nothing before us which would suggest that the Zoos and their staff have anything but the highest regard for the welfare of the elephants that would be placed in their care.
  2. The jurisdiction we are exercising is conferred by s 303GJ of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The power is “for review of a decision ... to issue ... a permit”. By subs 43(1) of the Administrative Appeals Tribunal 1975 (Cth) we “may exercise all powers and discretions that are conferred ... on the person who made the [original] decision”. Those powers include the power to impose conditions (s 303GE of the Environment Act). The section is cast in wide terms:
303GE Conditions of permits
...
(2) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (3).
(3) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
(4) The Minister’s powers under subsection (3) may be exercised:
(a) on the Minister’s own initiative; or
(b) on the application of the holder of the permit concerned.
(5) If a permit authorises its holder to take a particular action, a condition of the permit may require the holder to do, or not to do, an act or thing before, at or after the time when the action takes place.”

  1. By s 303CJ, permits only remain in force for six months. It is difficult to see how a condition could be imposed after a permit has expired. That is not to say, however, that a condition imposed during the life of a permit will not continue in effect after the permit has come to an end. There will no longer be an effective permission but the conditions attached to the prior exercise of the permission will continue to bind.
  2. To avoid any doubt the Zoos have agreed to give undertakings to the Minister in consideration of the grant of permits in the form of the conditions which they will ultimately accept. All parties furnished draft forms of decisions for the Tribunal, which we have considered very carefully. We have prepared our own forms of decisions and conditions which draw on all of the drafts. We do not wish to be overly prescriptive. We anticipate that the Zoos will be prepared to accept and give undertakings in accordance with the forms of decisions which we propose.
  3. A significant matter that has been agitated before the Tribunal has been the obligation to be satisfied under subs 303CG(3)(c) that “... conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with...”. The most relevant regulatory provision is the provision in para 9A.05(3)(b) of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) that “the person keeping the animal is suitably equipped to manage, confine and care for the animal, including meeting the behavioural and biological needs of the animal”.
  4. In their written and oral submissions at the end of the principal hearing, the applicants may have suggested that because the provision relates to ‘equipment’ and not conduct and because it speaks of the present, it was not open to a decision-maker to impose conditions relating to future conduct such as, for example, requiring the carrying out of a trial and responding to the results of the trial or even requiring construction in the future of a bull elephant enclosure at Taronga Zoo.
  5. We think that such an approach is probably too narrow. The provision of equipment cannot be divorced from intentions as to its use. This is particularly so when specimens imported may live for decades. Equipment in place at the time of importation will become obsolete or wear out or both. If a zoo had suitable equipment but proposed not to use it that would obviously be a matter to be taken into account. The concept of being “equipped” must be wider than merely having equipment at the time of importation. In any event, the governing words of s 303CG includes the phase “are likely to be” which contemplates the future.
  6. At the most recent hearing, after we had published our reasons in general, the applicants no longer adopted the narrow argument. Their counsel expressly departed from the earlier submissions in a passage beginning on page 63 of the transcript. The applicants tendered proposed conditions of their own which, if adopted by the Tribunal, would require conditions imposing future obligations on the Zoos.
  7. In the result neither the applicant nor the Zoos suggest that the Tribunal does not have power to impose conditions requiring future conduct relating to the welfare of the elephants.
  8. We have nevertheless approached the issue of welfare by reference to the provisions of subs 303CG(c) of the Act and para 9A.05(3)(b) of the Regulations. We have concerned ourself with the facilities rather than conduct. Nevertheless we have noted that the parties accept that if there is any limitation upon our power to impose conditions, the same result can properly be achieved by the giving of undertakings. In other words, it is accepted that where there is doubt as to the suitability of current equipment, an undertaking to address the situation is a legitimate basis upon which we can be satisfied that at the time of importation the zoos will be suitably equipped and will continue to be suitably equipped.
  9. The Decisions and the formal Conditions follow. We will add a few words explaining how we have formulated the Conditions we propose to impose. We have confined our comments to those where changes have been made to the parties’ drafts.
  10. In relation to both Zoos we note that the first 12 conditions are those published in the original permits issued by the Minister. No submissions regarding any changes to these were made and we did not consider any changes were needed.
  11. The issue of providing closed circuit television was discussed extensively at the hearing. We are satisfied that CCTV will be important in order to observe the behaviour of the elephants and that it will assist planning for their comfort and welfare bearing in mind that it will not only be elephant behaviour in general which needs to be addressed, but these particular groups in particular, in their new environment. This may give rise to special needs. The information obtained via CCTV will impact on planning and management for, amongst other things, feeding, mud wallows, mounds, enrichment programs, walks and sleeping arrangements. We are satisfied that CCTV should be installed not only in the barns, but in the outside areas, and, in general, should operate 24 hours a day, seven days a week. We do not, however, consider that it should be broadcast via live webcam. This would be too intrusive and could interfere with the role of management and the keepers in their care of the elephants.
  12. The issue of flooring in the barns has been discussed above. We are satisfied that the Zoos will monitor the different materials to be trialled at regular intervals and have reflected that in Conditions 15 and 16 for Taronga Zoo and condition 15 for Melbourne Zoo.
  13. We have, in the Conditions, reflected our interest in having the Zoos report to the Minister no later than 12 months after the arrival of the elephants. We have rejected the Applicants’ submission that an independent expert should be commissioned to produce reports and accept that the Zoos have adequate knowledge and capability and will produce bona fide reports. We are satisfied also that, if necessary, the Zoos will engage relevant experts as they did in the planning for the import of the elephants. As to the reports themselves, we do not wish to be too prescriptive about what they should cover. The Zoos will recognise that the areas in which they have been trialling new material (e.g. types of bedding) or new procedures (e.g. walks) will merit attention. We also reject the notion that we should require the Zoos to produce regular reports to the Department of Environment and Heritage or that the reports should be published. The Zoos have statutory responsibilities in that regard and, in addition to a report at the end of 12 months, we propose that the Department should be able, at any time, to require further reporting.

The Decisions and Conditions

  1. Accordingly the Tribunal decides to set aside the decision of the Minister dated 19 July 2005 permitting the importation of five elephants from Thailand to Taronga Zoo and, in substitution therefore, decides that replacement permits should be issued pursuant to section 303CG of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) subject to the conditions set out in Annexure A to this Decision and to the receipt by the Minister of undertakings from the respective Zoos to the effect of those conditions.

Annexure A – Taronga Zoo

1. VALID FOR ONE CONSIGNMENT ONLY
  1. If necessary, a Quarantine/Health certificate to accompany specimen(s) listed on the permit.
  2. The permit holder must complete and return the pink copy of the permit to the Department of the Environment and Heritage within two weeks of the consignment occurring.
  3. The specimen(s) (including progeny) will not be used for commercial purposes.
  4. If specimen(s) (including progeny)are transferred, the person receiving the specimen(s) must be suitably equipped to manage, confine and care for the specimen(s), including meeting the behavioural and biological needs of the specimen(s).
  5. The specimen(s) will be prepared and transported in a way that is known to result in minimal stress, risk of injury and adverse effect on the health of the specimen(s).
  6. The receiver of the specimen(s) must manage, confine and care for the specimen(s), including meeting the behavioural and biological needs of the specimen(s).
  7. The specimen(s) (including progeny) will be used in an approved co-operative conservation program.
  8. The specimen(s) (including progeny) will not be moved between institutions within the approved co-operative conservation program, or out of the program, in a way that is detrimental to other conservation programs or activities.
  9. This permit applies to individuals identified by the microchip numbers 4D00001562; 4D00003011; 6534794; 114836594A and 115316724A. [Sydney only]
  10. All animals are to be imported to the Cocos (Keeling) Islands quarantine facility before being transported to Taronga Zoo.
  11. All Commonwealth and State/Territory requirements in relation to this specimen(s) must be met.
  12. The receiver of the specimen(s) must comply at all times with the Guidelines for Management of Elephants in Australasian (ARAZPA) Zoos produced by the Proboscid Perissodactyl Taxon Advisory Group December 2004 as varied from time to time.
  13. The receiver of the specimen(s) must install closed circuit television cameras in each barn and throughout the enclosures prior to the arrival of the animals. Cameras must be operated 24 hours per day, seven days per week.
  14. Prior to the arrival of the animals at Taronga Zoo, the Zoo must install Rubaroc flooring to a depth of approximately 10 – 15 mm over the existing Rubbertuff flooring in two of the four stalls in the barn area, with a view to extending its installation to the other stalls if it proves to be successful. The receiver must monitor the flooring to ensure its ongoing suitability and report to the Department of Environment and Heritage within 12 months.
  15. The receiver of the specimen(s) must trial different natural bedding material such as sand over a 12 month period in the barn area (the choice of bedding material in part to be informed by the trials undertaken at Melbourne Zoo) for the purpose of measuring their effectiveness in encouraging the elephants to lie down. The final type of bedding material to be used in the barns must be the subject of consultation with relevant experts and must be determined after that consultation and after considering the results of the trials and must be based on the observed preferences of the elephants and their health and welfare needs. The receiver will report on progress to the Department of Environment and Heritage within 12 months.
  16. The receiver of the specimens must ensure there are at least two loose outdoor earth mounds of approximately six metres by four metres by two metres in height for the elephants’ use. The earth must be regularly maintained and the size and number of the mounds must be monitored, modified as necessary and reported upon to the Department of Environment and Heritage within 12 months.
  17. The receiver of the specimens must ensure that there are a minimum of two mud wallows of six metres long by four metres wide which are of sufficient depth for an elephant or elephants to lie down. The adequacy of the number and size of the wallows must be monitored, modified as necessary, and reported on to the Department of Environment and Heritage within 12 months.
  18. Trees which may be utilised by the elephants for scratching or foraging must not be electrically wired.
  19. The old elephant enclosure at Taronga Zoo, to be used to house Gung, the male elephant, must, by 31 December 2008, be refurbished to a standard that is at least consistent with the Concept Plan annexed to the affidavit of Guy Cooper sworn 14 December 2005 in the AAT proceedings N2005/916.
  20. As part of the enrichment program for the elephants and for purposes of exercise, the elephants at Taronga Zoo are to be walked regularly. Where that is not possible for an extended period, there must be a contingency plan in place. Provided other contingencies have not been able to achieve the desired outcome, arrangements would have to be made to transfer the elephant or elephants involved to the Western Plains Zoo. This is particularly applicable after Gung has reached maturity and is moved to the male enclosure. Arrangements must be made to ensure that the male elephant has appropriate opportunities for physical contact with one or more of the female elephants for at least nine months in any 12 month period.
  21. By no later than 12 months after the animals arrive at Taronga Zoo and at further times as the Department requires, the receiver of the elephants must provide a written report to the Department of Environment and Heritage advising of all actions and outcomes in respect of all the conditions listed above, other matters dealt with in the Tribunal’s reasons and any other matters of interest or concern. 
  22. The Tribunal also decides to set aside the decision of the Minister dated 19 July 2005 permitting the importation of three elephants from Thailand to Melbourne Zoo, and in substitution therefore, decides that replacement permits should be issued pursuant to section 303CG of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) subject to the conditions set out in Annexure B to this Decision, and to the receipt by the Minister of undertakings from the respective Zoos to the effect of those conditions.

Annexure B – Melbourne Zoo

1. VALID FOR ONE CONSIGNMENT ONLY
  1. If necessary, a Quarantine/Health certificate to accompany specimen(s) listed on the permit.
  2. The permit holder must complete and return the pink copy of the permit to the Department of the Environment and Heritage within two weeks of the consignment occurring.
  3. The specimen(s) (including progeny) will not be used for commercial purposes.
  4. If specimen(s) (including progeny)are transferred, the person receiving the specimen(s) must be suitably equipped to manage, confine and care for the specimen(s), including meeting the behavioural and biological needs of the specimen(s).
  5. The specimen(s) will be prepared and transported in a way that is known to result in minimal stress, risk of injury and adverse effect on the health of the specimen(s).
  6. The receiver of the specimen(s) must manage, confine and care for the specimen(s), including meeting the behavioural and biological needs of the specimen(s).
  7. The specimen(s) (including progeny) will be used in an approved co-operative conservation program.
  8. The specimen(s) (including progeny) will not be moved between institutions within the approved co-operative conservation program, or out of the program, in a way that is detrimental to other conservation programs or activities.
  9. All animals are to be imported to the Cocos (Keeling) Island quarantine facility before being transported to Melbourne Zoo.
  10. This permit applies to individuals identified by the microchip numbers 114773092A; 121714652A and 116736646A. 
  11. All Commonwealth and State/Territory requirements in relation to this specimen(s) must be met.
  12. The receiver of the specimen(s) must comply at all times with the Guidelines for Management of Elephants in Australasian (ARAZPA) Zoos produced by the Proboscid Perissodactyl Taxon Advisory Group December 2004 as varied from time to time.
  13. The receiver of the specimen(s) must install closed circuit television cameras in each barn and throughout the enclosures prior to the arrival of the animals. Cameras must be operated 24 hours per day, seven days per week.
  14. The receiver of the specimen(s) must trial different natural bedding material such as sand over a 12 month period in the barn area for the purpose of measuring their effectiveness in encouraging the elephants to lie down. The final type of bedding material to be used in the barns must be the subject of consultation with relevant experts and must be determined after that consultation and after considering the results of the trials and must be based on the observed preferences of the elephants and their health and welfare needs. The receiver will report on progress to the Department of Environment and Heritage within 12 months.
  15. The receiver of the specimens must ensure there are at least two loose outdoor earth mounds of approximately six metres by four metres by two metres in height for the elephants’ use. The earth must be regularly maintained and the size and number of the mounds must be monitored, modified as necessary and reported upon to the Department of Environment and Heritage within 12 months.
  16. The receiver of the specimens must ensure that there are a minimum of two mud wallows of six metres long by four metres wide which are of sufficient depth for an elephant or elephants to lie down. The adequacy of the number and size of the wallows must be monitored, modified as necessary, and reported on to the Department of Environment and Heritage within 12 months.
  17. By no later than 12 months after the animals arrive at Melbourne Zoo, and at such further times as the Minister requires, the receiver of the elephants must provide a written report to the Department of Environment and Heritage advising of all actions and outcomes in respect of all the conditions listed above, other matters dealt with in the Tribunal’s reasons and any other matters of interest or concern. 

 

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