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TRANSCRIPT OF PROCEEDINGS

 

 

CIVIL AND ADMINISTRATIVE TRIBUNAL OF THE

AUSTRALIAN CAPITAL TERRITORY

 

 

MR W.G. STEFANIAK, PRESIDENT

MR A. ANFORTH, SENIOR MEMBER

MR M. DAVEY, SENIOR MEMBER

 

 

AT No 41 of 2013

 

 

 

AUSTRALIAN SOCIETY FOR KANGAROOS INCORPORATED

 

and

 

THE ACT CONSERVATOR OF FLORA AND FAUNA & ORS

 

 

 

CANBERRA

 

11 AM, WEDNESDAY, 10 JULY 2013

 

 

PRESIDENT STEFANIAK: Right, we’re still waiting on a few people. Please be seated. I’ll just get appearances. I’ll just give Mr Anforth a couple of minutes. He’s doing hearings but we won’t delay the proceedings. He knows what he’s saying so he’ll be coming in. Right, Ms Katavic, you’re here again?

 

MS KATAVIC: Yes, I am.

 

PRESIDENT STEFANIAK: And who have we got for the respondent? I noted on the last occasion Mr Kennett indicated, of course, he would not be able to be here with his instructing solicitor. So, you’re – – –

 

MR SMIT: Yes, I’m Jacob Smit. I’m here for the applicant from DLA Piper.

 

PRESIDENT STEFANIAK: Jacob – – –

 

MR SMIT: Smit, S-m-i-t.

 

PRESIDENT STEFANIAK: Thanks, Mr Smit. That clock doesn’t quite say 11.00 am so I’ll just give Allan a couple of minutes and then we’ll start. All right, without further ado, we’ll start. I might just start by saying because of the urgency in the matter, as expressed by the General President first and foremost, that is why we’re mindful of that and as I said last night, we’ve had a look at the matter and we’ll bring down our decision and the oral reasons now and so the parties know exactly where they stand.

 

As much as anything else too, this is ACAT. ACAT is a – this is the first call for anyone appearing in either ACAT or the court system here and I always think it is highly appropriate too if justice is given and decisions are made quickly. Justice delayed often is justice denied and it’s important that all the parties know where they stand, thank you.

 

Right, my thanks – I reiterate what I said last night to the parties. I note the solicitor for the – well, Mr Jacob Smit is now appearing as the solicitor for the applicant and his two seniors, including Mr Kennett, who was very helpful to the Tribunal, have left and couldn’t attend today. Ms Katavic, you’re here, Ms Holly has instructed you after you’ve got everyone else here, it seems, who was involved.

 

I start by saying this is a very different case from the 2009 case, which involved basically culling on Defence land and involved a significantly greater number of kangaroos and there were issues in that case which led to a couple of the expert witnesses getting together just to decide the actual number of kangaroos to start with and whilst that was conceded, the actual need for culling wasn’t at all and there was a different set of arguments and the Tribunal made its decision in relation to that matter and that was a significantly different case to this one here today. This one here deals with applications – seven applications to cull and licences given to cull in relation to seven different Territory reserves in the ACT.

 

There are a number of issues which were before the Tribunal in this case which weren’t pressed and what ultimately was basically pressed in the end was a dispute around the figures and that is in terms of the counting of the figures, the ratio of kangaroos per hectare and what should be an ideal ratio or a sustainable ratio, and questions in relation to the damage or lack of damage that kangaroos cause to our native parks.

 

This is an emotive area in terms of developing a Kangaroo Management Plan, in terms of developing the Nature Conservation Strategy and in terms of developing the science behind how the government officials operate. It has been an ongoing process, certainly as far as I can recall, since self-government in the Territory and perhaps even before then and it has been a very detailed process and there have been a number of plans and it is certainly quite a complex process, and rightly so a complex process too, in terms of the ability of the government to actually get a licence.

 

Canberra is a bush capital. One of the best parts of being in Canberra is the access to native flora and fauna and specifically our national emblem, kangaroos. The legislation has been developed, as I indicated. A lot of it has been referred to and I’m not going to go over what was said by the applicant who took us through I think the legislation very effectively although it is, I think, important to note the Nature Conservation Strategy which the Kangaroo Management Plan follows from where the implementation strategy on page 12 starts with:

 

“The objective is to manage the nature conservation estate to maintain the range of ecosystems present to the fullest possible extent consistent with natural processes and ecological dynamics. (2) To incorporate within the nature reserve system viable samples of all ACT ecosystems.”

 

There is an off-reserve conservation which I’m not going to deal with except it is indicative there that objective (7) does deal with kangaroo management and it states:

 

“To manage the Eastern Grey Kangaroo population so that conservation requirements are satisfactorily integrated with other management issues.”

 

And one of the key actions there was “to develop and implement and integrated strategy for kangaroo management” which led to the Kangaroo Management Plan which has been referred to, naturally enough, during these proceedings.

 

Page 18 implementation strategies:

 

“Conservation of threatened species and ecological communities. The objective is to enable species and communities that are threatened with extinction to survive and thrive in their natural habitats.”

 

The actions for that was:

 

“To develop and implement action plans for declared species and communities, maintain a regional perspective to development and implementation of conservation strategies.”

 

And sundry other matters there. Objective (2) there was “to prevent additional species and ecological communities from being threatened” so the clear plan there, backed up by the kangaroo management strategy and plan and indeed provisions in the Act in terms of just how to go about this, involved “a comprehensive strategy for ensuring that ecosystems in the ACT were protected.” Part of the Act that that actually deals with that was quite properly put by, I think, both counsel yesterday. Action to be taken in terms of getting – terms of, if need be, in this case culling kangaroos and culling kangaroos for the purpose of ensuring a balance and a diversity in terms of bio-strategy.

 

The Act starts with the premise that the government authorities have to satisfy the conservator and go through a series of procedures to enable a licence to be issued. A licence is simply just not going to be issued because the governments wants to do it. There has to be a basis for that and a good scientific basis and good justification and so we start from the premise that if it was an ideal world, you would not have to probably kill anything. It has to be justified and any killing of any native species or anything that affects the biosystem in the ACT has to go through the relevant hoops. I would certainly agree with Mr Webster when he said if there’s something wrong with a strategy, that doesn’t mean that the ACAT or somebody couldn’t comment on it or perhaps if it’s based on some false premises, especially in the operation of the strategy and some of the data or science perhaps used, that is certainly something we could and should comment on.

 

So I thank counsel for their discussion of the legislation and the plan and I think those are some of the salient features I just want to actually bring out. It is a sad fact of life that human development often means species are threatened or indeed made extinct and that is something which unfortunately is perhaps beyond the ability of this Tribunal to influence in any particular way except to say that clearly, with so many people on the planet, 7 billion people, it becomes somewhat unsustainable and I would certainly hope from the really, really big picture governments round the world take some steps to address those sort of problems and indeed that goes right down probably to local government and it needs a co-ordinated approach. It’s certainly far, far bigger than what we are just looking at here. The duty of ACAT, of course, is to interpret the law, interpret such things as the plans, and just make sure that when government decisions are made and departmental decisions are made, and they are tested, that that is done fairly and properly.

 

Basically, this case got down to two gentlemen giving evidence and two gentlemen both who were – had a significant amount of experience in their areas. The Tribunal, where it had to assess the evidence given by both gentlemen, and Dr Fletcher was not put forward as an expert witness per se because, in the ACAT Code of Conduct, an expert witness per se is meant to be completely independent and my two colleagues will probably elaborate a bit more on that. Suffice to say he certainly has excellent qualifications. He has a doctorate in the relevant area and he is certainly well regarded in terms of the scientific papers he has done and he has certainly specialised in kangaroo management and issues such as that in our local area and that was certainly commented on in the 2009 case and certainly he has significant academic qualifications. He is, of course, acting for the government. Naturally, he’s going to defend his own views unless he has a sudden rethink but I must say I’ve certainly formed the opinion that in defending his own views, he gave his evidence in a straightforward way. He was direct and he certainly adopted that approach.

 

Mr Madgwick(?) also was certainly direct and gave his evidence in a very understandable and forthright way and, in fact, I think Mr Madgwick is to be commended for his efforts here. He clearly did not have similar academic qualifications to Dr Fletcher. He has not had a huge amount to do with kangaroos. For what it’s worth, he’s not from the ACT although I do notice that the Bathurst ecosystem isn’t all that different. He isn’t a wildlife biostatistician and analysis person and he certainly doesn’t have the same academic qualifications as Dr Fletcher, or indeed perhaps the same standing in terms of that community. He certainly I found was a good biologist for descriptive survey work and he made I think some excellent points, some of which were perhaps not backed up by the necessary scientific information which would be needed, but nevertheless I found to be very logical points. And it was a very useful exercise with both of these gentlemen going through.

 

I’ll deal now with a couple of areas where there is some significant difference and first and foremost that was the count. In the relevant areas, in the Mount Painter Reserve where Dr Fletcher and his assistants did a sweep count, which is I think about the second best count you can do – direct counts of numbers is the best and the …(indistinct)… transit count is about the third best. All of them are acceptable counts. The government said there were 432 kangaroos. The estimate by the applicants was 80 to 100. In the Goorooyarroo – I’m still not pronouncing that very well – Nature Reserve in the Dundas Flat Area, the government said 189, the applicants say 54.

 

In the Goorooyarroo Forest, the applicant said 15, the government 40 and in the Goorooyarroo Nature Reserve the applicant 154 to 280 and the respondent, 1145. Sorry, the Goorooyarroo/Dundas Flat was a sweep, as was the Goorooyarroo Forest. There was a walk line transit for the Goorooyarroo Nature Reserve. For Mulligans Flat everyone agreed there were 108 eastern grey kangaroos. The Kama Nature Reserve the applicant thought it was between 80 to 100. The sweep count by the government said 200 there. Callum Brae Nature Reserve the applicant thought it was between 60 and 80. The government came out with a – this was a line transit one – 288.

 

There’s a direct count in Mulanggari Reserve. The applicant, whilst they said 200 to 220 didn’t cavil really with the 228. And at the pinnacle there was a sweep done last August. That was explained, though I thought that was a bit late by Dr Fletcher saying, “Well that actually is about the best time to count” and they came up with 677. The applicants were 100 to 200 with an upper limit of 200 eastern grey kangaroos. Suffice to say the respondents used often paid employees, they used significantly more people than the applicants. The applicants naturally did not have a huge amount of time. Mr Madgwick came down and certainly briefed people, volunteers to assist with the counts, but wasn’t there to actually supervise them, whereas Dr Fletcher was.

 

Dr Fletcher certainly seemed to have, in terms of his counts, probably more scientific rigour and more people and also at probably more appropriate times of day, in that the people would come out when it was dark and then start at dawn, when kangaroos are starting to stand up. And, indeed, one could say he had greater resources. So where there was any difference there the Tribunal is and does accept the figures of Dr Fletcher and the respondent, in relation to that. The next issue was the ratio. Now in the kangaroo management plan at page 106 I think it is the ratio is given between 0.6 and 1.5.

 

Dr Fletcher was quite open and frank, in relation to that, and he was rightly pressed by Mr Kennett and Mr Madgwick, in relation to that and there was a lot of discussion, in relation to what the actual appropriate size was. That was crucial in terms of the kangaroo management strategy, the conservation plan for the ACT and the whole basis, in terms of culling kangaroos and the need to cull kangaroos, or the need not to cull kangaroos. And Dr Fletcher indicated that it is an ever evolving science. He indicated that the 0.6 to 1.5 was wrong, but wrong in the extent that there was nothing that was better at this stage. He readily conceded that in the next few years he may well come back with a different set of figures.

 

But when I put it to him on the basis that this is a little bit like democracy it’s a pretty imperfect system, but it’s the best system anyone has invented so far he indicated yes, it’s something akin to that. But he stressed it is an evolving science and the figure that he has been operating on, in terms of kangaroos per hectare is one, being somewhere obviously in the middle of 0.6 to 1.5. I will come back to that because that is important later for the Tribunal’s ultimate decision. Mr Madgwick in his evidence suggested in some instances anything up to 10 kangaroos per hectare may be reasonable and certainly figures more in the vicinity of about 3.7 or 4% upwards per hectare were fine. And that in his view and with the material that he put before the Tribunal he indicated that he felt that those were the sorts of figures we actually should be looking at.

 

There was also a bit of a red herring, perhaps in terms of looking at the number of sheep and economic viability of an area and economic sustainability, as opposed to environmental sustainability. And the Tribunal I think accepted that we were talking about parks and nature conservation parks and biosustainability is quite different to economic sustainability where, at the end of the day to maintain the property you have to make a profit. And so it would be logical in economic sustainability that you would have more animals per hectare than you would if you were talking about environment sustainability.

 

Again I think the Tribunal accepted the evidence put forward by Dr Fletcher as not as complete perhaps as we would like, but that is simply the stage we’re at, in terms of dealing with these matters to the evidence put forward by Mr Madgwick. Mr Madgwick did not seem to have the same – any real documentation to back up to any great extent a lot of what he was actually saying, compared with what Dr Fletcher said. And there was one fairly telling comment a question right at the end where Dr Fletcher was asking him about one of the certain nature parks in terms of what Mr Madgwick was able to get to, and in terms of what he observed there in terms of grasses and some of the grass was high, some of the grass had been grazed.

 

And Dr Fletcher put that on the basis of well that was an area where it was around about one kangaroo per hectare and that’s exactly what he was talking about, in terms of environmental sustainability and ecosystem diversity. So in terms of the actual formulas used for kangaroos the Tribunal accepts the formula which is in the kangaroo management plan. Whilst a lot of very good information and food for thought was put up by Mr Madgwick and I commend him for that, and I think that will go some way perhaps in terms of coming up with even better solutions as this science evolves further, at the end of the day he was unable to back that up with any sustainable independent evidence which would really support his viewpoint and that was more persuasive than what was put up by the respondent.

 

So on that basis the Tribunal does accept the ideal situation for our national parks, our reserves here is between 0.6 to 1.5 roos as ideal at this point in time, noting that that may well change in future. There was also significant conversation in relation to well is it the roos? What about foxes, rabbits and plants? There is a concern by the applicant that the respondent – the ACT Government – wasn’t doing enough in terms of those types of controls. And I know from time to time there have been points raised, for example, over Paterson’s Curse in government paddocks and things.

 

And Dr Fletcher indicated that there were some significant programs which were taking place in recent times to control plants, foxes and rabbits and some studies done. Not total studies across all of the seven areas, but certainly some significant work there. And at the end of the day the Tribunal was left with a situation where there was nothing to indicate that we had anything to indicate that the 0.6 to 1.5 roos per hectare was, in fact, a reasonable premise to actually work on and that those other issues were not of any real effect on that. There were some other points raised in the material which wasn’t really touched on in this hearing and I don’t cavil with that at all, but there is some relevance there.

 

Mention was made in the hearing briefly of the Belconnen Mobil Station and the fact that there used to be 650 roos there and we’re down to about a hundred and that it was certainly a very emotive issue when the cull was done there in 2008, and perhaps rightly so. What was interesting in the written material was the fact that about 50% of those animals did not have any liver fat or brooded liver fat. And I certainly do recall at the time there were certain issues around the drought and certainly starvation of kangaroos too. And that perhaps is another reason to ensure a manageable population because whilst many people find killing of any animal abhorrent, animals starving to death also is quite abhorrent and these are the factors that will need to be taken into account.

 

We noted in the material that there were allegations of some significant cruelty and I would encourage the ACT Government – again this wasn’t pushed, but it is crucially essential for this regime to work that all relevant steps are taken to ensure that any animal is despatched humanely. And that is something which I think invariably does happen, but there were some concerns expressed in the documentation here that that hadn’t happened and that is somewhere where the government authorities need to be forever vigilant.

 

Little was also made of car crashes. Well clearly if we are to enjoy a biodiverse area with kangaroos and other animals there will be road kills. Obviously there’ll be more road kills if there are more animals and no one likes to see an animal killed that way. And so perhaps with proper management it does mean less road kills, but that is a fact of life and it cuts both ways. People don’t like it driving their cars and people perhaps need to be a lot more careful in driving their cars. But conversely it’s not terribly good for a lot of animals to be killed in road kill too. And if proper conservation measures are taken all of that can be minimised.

 

Now, my colleagues are going to elaborate on certain issues and considerations the government also might need to take into account. I will conclude by saying constant vigilance is needed by government agencies, not only in the ACT but elsewhere in Australia to ensure that there is a balance and that kangaroo populations are maintained at a proper level. It was only 40 years ago I think that people were worried that they may become extinct. It is an evolving science we’re dealing with here. A lot of work has been done, certainly locally in the last 20 years and I think that’s nationally too, in relation to biodiversity. And I think that stands us in very good stead for future improvements in the future to this area of science.

 

Coming to the actual decisions taken by the government the issue of seven licences, the Tribunal because this is not an exact science and mindful of the intent behind the Act and the intent that killing an animal is only to be done where it’s deemed absolutely necessary, we are of the view that unless there is good reason shown why that should not occur the upper limit of 1.5 roos per hectare is the figure that we should base our decision on, and we so do. There are two areas where the figures look quite strange to start with. They were certainly less than – in some areas they’d leave more than one kangaroo per hectare and in others you’d end up having, for example, 10 kangaroos and nine were going to be killed.

 

Now that was explained at length by Dr Fletcher in relation to some scientific evidence being given and the fact that that wouldn’t mean you’d end up with no kangaroos in an area. There’d be movement of other kangaroos, but it was part of a scientific process, in relation to better management. And that is why, in relation to the Goorooyarroo Reserve and also I believe the other one I think was Mulligans Flat a certain number were sought to be culled and the Tribunal would accept that that is fair enough in the circumstances.

 

So the Tribunal’s decision is that all seven licences – the decision to issue seven licences will be affirmed. In the case of licence No LK2013534 that is affirmed as is for 740 kangaroos. In terms of LK2013535 and that is Mulligans Flat, and that is in relation to 78 kangaroos that will just simply be affirmed. But the other licences and the decision to issue them, whilst it will be affirmed the licences will be varied. In the case of licence 2013532 and that is The Pinnacle only 200 kangaroos will be allowed to be culled there, rather than the 300. In the case of Mount Painter it’ll be 80 it’s wrong. Yes, in the case of Mount Painter it’ll be 80 as opposed to 120.

 

In the case of Kama it’ll be 27, instead of 40. Callum Brae it’ll be 94 instead of 140 and Milungaru(?) it’ll be 25, instead of 37. For those of you who are statistically inclined that’ll mean the total number able to be culled in the seven areas will be 1244, as opposed to the 1455 sought. I note the lateness of the culling and if it started tonight there is only some 22 nights and whether the government reaches that or not is perhaps a moot point but those are the figures which we have come with in terms of the variation of the licenses for the reasons given.

 

I will now ask my colleague, Alan Anforth, Senior Member Alan Anforth, to make any comments he wishes to. He will then excuse himself because he has to attend to another hearing.

 

Mr Anforth.

 

SENIOR MEMBER ANFORTH: There are a couple of points, firstly, just be clear that we did not take the view we were bound by the kangaroo plan. It is a mere policy which has no statutory course. It weight resided in the extent to which it had been the subject of scrutiny and quasi-peer review not by the intervening belief on our behalf that it was sacrosanct or beyond challenge by the applicant or beyond scrutiny by us. So it is clear that we did not accept that submission.

 

Secondly, I personally express the view and still hold the view that there is an issue. We did not need to resolve that there is an issue in my mind whether the items in criteria are a valid expression of the delegation which are given in the Act in terms of the generality with which they leave most of the substance to be determined by the conservator. That was not a matter we needed to determine for the purposes of this case. I sort of, in my view it remains an open issue.

 

The third point I make is in respect of Dr Fletcher’s evidence. Made the point earlier that although Dr Fletcher’s evidence was probative in content it is important to realise that something follows from not formally being an independent expert and the President has indicated there are two limbs there, independent and expert. And the independent is important. It is important for two reasons. Firstly, there is a natural emotional tendency for people to want to support their own decision and that is a very common phenomenon in administrative law and it is the reason why there is independent review at various stages. That people will, for better or for worse, have that inclination to defend their own decision.

 

The second reason is fresh eyes. The second reason for having an independent expert is that reasonable minds can differ. Two people with relevant expertise can review the same data and review the same issues and come to different conclusions without either of them being unreasonable. It is a question of what weight they put on things. It is a question of how they construe certain of the evidence. That is the idea of fresh eyes. If you have the same person reviewing their own decision and giving evidence in respect of their own decision there are no fresh eyes. That whatever assumptions that person made in the first place when they came to their decision they are likely to perpetuate that same set of assumptions in their capacity as a witness, as an independent or as a witness.

 

And I mean no disrespect whatever of Dr Fletcher but as a principle it is not good. The weight that is given to evidence must reflect, amongst other things, the independence of the person and it is our suggestion that in future matters that if the ACT is called upon to defend administrative applications of this kind it would be better served having an independent expert who has standing at an academic national or international level who brings fresh eyes to the issue. And I repeat there is no disrespect imputed for Dr Fletcher’s level of expertise. It is simply the question of the lack of independence implicit in that recommendation.

 

They were the points I make.

 

PRESIDENT STEFANIAK: Thank you and you want to be excused?

 

SENIOR MEMBER ANFORTH: Yes.

 

PRESIDENT STEFANIAK: Thank you, Alan.

 

Adrian.

 

SENIOR MEMBER DAVEY: Okay, I just address a couple of issues in relation to the witness for the applicant because at the outset of proceedings the respondent raised an objection to the qualifications of the witness as an expert witness but the Tribunal chose to proceed to hear the evidence and to treat the matter as an issue as how much weight would be put on that evidence. We would have to say that the Tribunal, in the end, did not have before it evidence that establishes the expertise in the disciplines of estimation of wildlife abundance and population dynamics. The counsel for the applicant quite correctly argued that there are other means of establishing credibility of an expert, they being experience, but the issues really need to be addressed in the context of what are the norms of the discipline in question.

 

So, the matter of absence of a higher degree, for instance, which is not contested, was not even addressed in the context of what would be the normal requirement, the minimum requirement, for someone to have credibility in that field. In a reputable research institution anywhere in the world for instance. Likewise on the other criteria, what would be the normal measures of credibility in that field and they are typically measured by a publication record and matters of peer review; quality assessment appropriate to the relevant discipline and matters of national, preferably international standing in the discipline and impact. In other words it is not just the number of research outputs someone might produce it is evidence that they have actually made a difference.

 

Now, we did not hear evidence about those. We did see that there is an impressive record of outputs and simply make the point that given what we did receive we are not in a position – a long list, no matter how excellent, does not, of itself, establish anything about either the quality or the impact of what is in that list. It might be there but it was not established for our purposes and so we could not put a great of reliance on it particularly when very little of that list had clearly been the subject of peer review which is one of the normal quality assurance mechanisms that definitely applies in this discipline.

 

There is also an issue of independence because in seeking to establish the depth of experience of the witness our attention was drawn to one recent example which happened to be relevant to this particular case in which the way it was represented in the CV was as if it had been a commission piece of independent analysis but it became clear that, in fact, it had been an unsolicited piece of advocacy. And so that calls into question the independence of other items on the same list. So independence is also part of that measure of the quality assurance that might apply to whatever publication record an expert is supposedly putting forward.

 

The other aspect to it is that we did hearing during testimony a number of criticisms of – somewhat speculatively – bias on the part of various scientists who have worked on kangaroo management issues. The tribunal cannot give much weight to those criticisms when they have been through international peer review quality assurance processes and the authors involved have most of those other attributes that would normally establish them as having credibility when the critic has not demonstrated that they themselves meet that quality assurance standard. The criticisms might nevertheless have something in them, but they cannot be given very much weight.

 

PRESIDENT STEFANIAK: All right, I will just read out the actual formal orders and if counsel have any issues with that or corrections, please let me know. And I thank my colleagues for their comments as well and hopefully people can take all that into account for future reference.

 

Right, firstly the orders will be, the decision to issue licence LK2013534 and LK2013535 to the party joined is affirmed.

 

Two, the decision to issue licence LK2013532, licence LK2013533, licence LK2013536, licence LK2013537 and licence LK2013538 to the policy joined is affirmed, but the number of Eastern Grey kangaroos allowed to be killed shall be as follows: Licence A LK2013532, the Pinnacle, 200; LK2013533, Mount Painter, 80; C, licence LK2013536, Kama, 27; LK2013537, Callum Brae, 94; LK2013538, Mulanggari, 25.

 

Ms Katavic, anything in relation to that? Just in terms of the wording?

 

MS KATAVIC: Probably making sure that with all – – –

 

PRESIDENT STEFANIAK: Yes, I just want to make – – –

 

MS KATAVIC: – – – …(indistinct)…section 68 of the ACAT Act, that is the only – – –

 

PRESIDENT STEFANIAK: I just want to make sure that that is – – –

 

MS KATAVIC: Essentially in relation to order 2, it is an exercise of the power under section 68(3)(b) of the ACAT Act.

 

PRESIDENT STEFANIAK: Well, though, do I actually need to say that? I mean, you have indicated yesterday that clearly the tribunal has the power to vary a licence.

 

MS KATAVIC: It does have the power to vary a licence but there are two different powers. One is the power to confirm a decision which is a power in itself, and the second power which is separate to that which is the power of variation, the one I understand you are exercising in relation to order 2.

 

PRESIDENT STEFANIAK: All right, so you are saying I should say pursuant to whatever the section is of the decision.

 

MS KATAVIC: Section 68(3)(b).

 

PRESIDENT STEFANIAK: All right. Have you got any issue with that, Mr Smit?

 

MS KATAVIC: Each of those decisions.

 

PRESIDENT STEFANIAK: That is probably correct.

 

MR SMIT: …(inaudible)…

 

PRESIDENT STEFANIAK: Pursuant to what?

 

MS KATAVIC: Section 68(3)(b).

 

PRESIDENT STEFANIAK: Have you got the section there? I will just have a quick look at that just to satisfy myself that – “The decision,”  sorry, “The tribunal must by order vary the decision.” All right, section 68 states this, subsection (1), “This section applies if the tribunal reviews a decision by an entity.” We have done that.

 

(2) The tribunal may exercise any function given by an act to the entity for making a decision.

 

(3) The tribunal must by order:

        (a) confirm the decision or vary the decision, or

        (b) or set aside the division and make a substitute decision;             or

        (c) remit the matter that is a subject of the decision for                 reconsideration by the decision-maker.

 

The effect in 69, “This section applies if the tribunal makes an order under section 68(3),” which is what we are doing, “in relation to a decision.” Subsection (2) of 69 says:

 

The order is taken to be the decision of the decision-maker and… (b) takes effect from the day the tribunal makes the order unless the tribunal orders otherwise.

 

So that is certainly quite clear and that is the tribunal’s intent. So I think the correct form of words there would be simply, 1, order number 1 in relation to the two licences where we are making no variation, just stays as it is and I do not see any need to say “pursuant” or anything there.

 

Just to be sure though, for order 2, well, we are varying. We are sitting in the shoes of the decision-maker and as a result of what we have heard varying the order. That will be pursuant to section 68 subsection (3) subsection (b), the decision to issue licence et cetera, et cetera, et cetera, as I have said. All right, I think that is more proper. That is, proper, not more proper, because it is bad English.

 

All right, is there anything further from the parties? Look, thank you and I say again, as I said yesterday, I thank the large number of people who have obviously assisted in this matter and that includes, for the applicant, the various – if there are any here, the various people who assisted the applicant in terms of counting and anything else. And to the respondents, the various people, be they students, public servants or any volunteers you had who did also on your side and to the various officers here.

 

And I look forward to following with interest any further advances in the science of all of this. All right, thank you very much and I thank everyone for their attendance in what was a fairly short space of time to get all of it done. Thank you. The tribunal is adjourned.

 

 

ADJOURNED    [11.46 am]


 

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