Full Case Name:  The International Fund for Animal Welfare (Australia) Pty Ltd and The Humane Society International Inc and The RSPCA Australia Incand and Minister for Environment and Heritage and The Zoological Parks Board (NSW) and The Zoological Parks and Gardens Board (Victoria)

1.	Elephants have been held in captivity for more than 4,000 years. They have been used as beasts of burden and in warfare. For more than 200 years, they have been kept in zoological parks. However, community attitudes towards keeping wild animals in captivity have been changing. We must decide whether eight Asian elephants may be imported into Australia by Melbourne and Taronga Zoos.
2.	Our decision is not at large. We must apply legislation which prescribes the circumstances in which animals such as elephants may be imported. These reasons will address a number of issues prompted by the legislation.
3.	The critical issues are whether:

(i) the elephants are being imported "for the purposes of conservation breeding or propagation";
(ii) the zoos are "suitably equipped to manage, confine and care for the animals, including meeting the behavioural and biological needs of the animals"; 
(iii) the importation of the elephants will "be detrimental to, or contribute to trade which is detrimental to ... the survival .... or ... recovery in nature of" Asian elephants; and
(iv) the elephants were "obtained in contravention of, [or] their importation would ... involve the contravention of, any law".

Decision

4.

The elephants are intended for use in a breeding program but they are also intended to be exhibited. We have decided that the proposed importations are for the purpose of conservation breeding because the legislation provides that this requirement is satisfied when the animal "is for use in a program the object of which is the establishment and/or maintenance of a breeding population". Although the facilities in which the elephants will be confined are more generous than zoos have provided in the past they fall a long way short of natural conditions. We have nevertheless decided, subject to hearing some further evidence, that the zoos are suitably equipped as required. We have taken into account that the welfare requirement implies care and management in circumstances of confinement. We have also taken into account our understanding that the phrase "meeting the behavioural and biological needs of the animals" does not require natural conditions but assumes captivity and the meeting of the needs other than by reproducing the conditions found in nature. We have decided that the importation is not relevantly detrimental to the survival or recovery in nature of Asian elephants and we have decided that the importation will not contravene any relevant law. We have decided that the import licences should probably be granted although this will be on a number of conditions and we will need to be further satisfied by additional evidence.

Facts

5.	The Zoological Parks and Gardens Board (Victoria) and the Zoological Parks Board of New South Wales applied to the Minister for Environment and Heritage for permits to import eight Asian elephants (Elephas maximus) from Thailand. Five of the elephants would go to Sydney’s Taronga Zoological Park and three of the elephants would go to Melbourne Zoological Park. Taronga Zoo has no elephants at present although the Western Plains Zoo, which is operated by the same Board, has two Asian elephants and two African elephants (Loxodonta Africana). The Asian elephants were formerly housed at Taronga Zoo. Melbourne Zoo has two Asian elephants (Bong Su, male, approximately 31 years old and Mek Kapah, female, approximately 32 years old).
6.	Melbourne Zoo has developed new enclosures to house the Asian elephants. They will be adjacent to other animals coming from similar parts of Asia. The total area is called the Trail of the Elephants. Taronga Zoo has also developed a new enclosure which also includes associated exhibits. It is called the Asian Elephant Rainforest. Melbourne Zoo’s outdoor area is 4,587 m 2 . This comprises a Cow Paddock (1,820 m 2 ), a Bull Paddock (1,400 m 2 ) and a Village Paddock (1,367 m 2 ). There are also three pools and two barns. Individual stalls in the barns are 7m x 7m. Taronga Zoo’s outdoor area is approximately 2,082 m 2 . This excludes a pool and moat of 418 m 2 , a barn of approximately 490 m 2  and a separate yard of 80 m 2 . There are four stalls in the barns which are also 7m x 7m. In addition, Taronga Zoo plans in the future to redevelop an enclosure which has previously been used to hold elephants. This space is close to, but separate from, the new enclosure. It will provide approximately an additional 2,200 m 2  of space.
7.	The five elephants chosen for Taronga Zoo are:

The three elephants chosen for Melbourne Zoo are:

8.	The three elephants intended to go to Melbourne Zoo will join the two elephants already there. The females will be kept together. It is hoped that Mek Kepah will fulfil the role of matriarch. At night the females will be separated from Bong Su. There are separate houses or barns for Bong Su and the females. The elephants will not be shut in the barns at night but will be free to move about outside. The ground in Melbourne Zoo appears to be a natural sandy soil grassed where the traffic is not heavy. There are mounds of sandy loam and mud wallows where the elephants can lie down. The floors of the barns are on a slight slope. They are concrete with a rubberised cover. The cover does not provide any substantial cushioning.
9.	The remaining five elephants are intended to go to the Asian Elephant Rainforest enclosure at Taronga Zoo. Although Koong is male he is still young and suitable to be kept night and day with the females. When he reaches sexual maturity he will be moved to the redeveloped site where elephants were previously kept. It is intended that when this change takes place the female elephants will be walked on a daily basis to the enclosure of the bull and spend a number of hours there. As in Melbourne the elephants will be free to roam at night and to sleep outside. The ground is grassed sandy loam. As there are no elephants there at present the grass is not worn. There will be a mound and a wallow although they have not yet been constructed. The floor of the barn is similar to the Melbourne barns except that the rubberised coating is barely more than the thickness of paint and although probably reducing the risk of slipping it provides virtually no cushioning.
10.	We had evidence before us relating to the facilities in both Melbourne and Sydney and we made a visit to both sites accompanied by the parties’ representatives. The documentary evidence included site plans. The Sydney area is undoubtedly smaller than the Melbourne area. From our assessment of the Sydney area an elephant might be able to walk up to 55 metres without turning, if the necessary gates were open, and could walk in a circuit of approximately 120 metres. We were only provided with a small scale plan of Melbourne’s Trail of the Elephants enclosure. However, the areas are undoubtedly greater than in Sydney. Against this we note that Bong Su is a mature bull elephant who will be separated from the female elephants from time to time and always at night. He will occupy the Bull Paddock. If the females are then confined to the Cow Paddock the area that would be available to them will not be larger than the Sydney enclosure. Either the male or the female elephants could also be given simultaneous access to the Village Paddock but that would involve the elephants crossing walking paths which, during the day, are generally open only to the public and not to the elephants.
11.	In both the Sydney and Melbourne enclosures there are stumps and dead trees for the elephants to rub against and food is provided in such a way as to require the elephants to use mental and physical effort to access it. This is to emulate the sort of tasks which are the daily activities of elephants in the wild. The object is to reduce boredom and avoid so called stereotypical behaviour. This includes head nodding and swaying. Such programs are given the unlikely name of enrichment programs. To our minds they provide for a basic need. They fall a long way short of what might be "enriching" for an elephant in captivity but the word is in such common use in the evidence and in the literature that we will use it ourselves. Growing trees and some other parts of the enclosures are protected by electric wiring, although we were told that some of this will be removed.

Elephant Management

12.	In 2004, the Australasian Regional Association of Zoological Parks and Aquaria (ARAZPA) adopted  Guidelines for Management of Elephants in Australasian (ARAZPA) Zoos . The Guidelines were prepared by the Proboscid Perissodactyl Taxon Advisory Group of ARAZPA but this group does not appear to have any independent membership. It is made up of employees of Zoos which are members of ARAZPA. The Guidelines comprise a detailed document of nearly 80 pages.
13.	The Guidelines contain detailed discussion of the needs of elephants and recommendations as to how these should be achieved. However, the Guidelines contain an assumption that elephants will be kept in zoos and all the recommendations proceed from that basis. For example, the section on "Elephants in Zoos" begins by recording that an elephant was put on show at the Tower of London in 1256 and describes the extent to which elephants are still kept in zoos today. Part of our task is to question that assumption. The Guidelines do, however, recognise some of the behavioural characteristics of elephants in the wild. An example is the social organisation of elephants which is said to be comprised of the mother and her offspring with males leaving the family unit upon reaching sexual maturity to join bull herds or live alone while sometimes associating with family groups to mate.
14.	There are sections in the Guidelines about how elephants should be kept in zoos. They deal with "Enclosure/Facility Design", "Management and Training" and "Feeding and Nutrition".
15.	It is recommended that a "minimum area of 2,000 m 2  for outdoor enclosure(s) is required to accommodate groups of up to eight elephants". A further 250 m 2  is said to be necessary for additional elephants two years old or more. The Guidelines note that "in Victoria, minimum recommended enclosure size for up to two adult elephants is 900 m 2 ". The recommendation also stresses the need for protection from sun, wind and rain and counsels the inclusion of "pools for bathing and swimming (non-weight bearing activity)", items for rubbing against, mud wallows and piles of sand for resting and climbing.
16.	Dealing with indoor areas the Guidelines provide:

"The flooring should have properties that include insulation, so that the floor remains warm. This may be achieved by the use of deep litter. Concrete floors must be covered, eg. with a rubber compound, wherever elephants will be spending extended periods of time."

17.

Under "Management and Training" the Guidelines address both enrichment and training. The recommendations assume that these two processes can satisfactorily substitute for natural conditions. Enrichment gives the elephants some measure of what they would experience in the wild in a way which supplants their need for the actual conditions. The result is the reduction or avoidance of stereotypical behaviour such as nodding or swaying. The occurrence of stereotypical behaviour may be a significant tool in determining whether the behavioural needs of elephants are being met.

18.

Under the heading "Substrate", which appears to refer to the surface of outdoor facilities, in a section on enrichment, the following appears:

"...
• A mound of earth has been consistently used by an elephant for resting.
• Soil can provide elephants with supplementary sodium and trace elements.

• The addition of adequate amounts of bedding, straw, sand or sawdust to concrete floors provides a warm, dry surface to stand or lie on and also stimulates grooming and play."

19.	The same section of the Guidelines also addresses training and handling. Broadly, there are two means of handling elephants: direct and indirect. The former takes place with no barrier between the elephant and the handler. It permits closer contact between elephant and handler but depends upon the handler successfully creating a relationship of dominance over the elephant. Without such a relationship there is a risk of injury to the handler. The proposals of both Taronga and Melbourne Zoos place emphasis on direct handling because that is appropriate to the environment in which the care of the elephants will take place. Indirect contact takes place with a barrier between elephant and handler. The result may seem to put the elephant into a more caged situation but the elephant is freer to act in accordance with its own will.
20.	ARAZPA has also developed a Captive Management Plan for the Asian Elephant. The plan was last updated on 15 October 2004. Its authorship is similar to the general plan. Two of the authors, Laura Mumaw and Laurence Pond, gave evidence in these proceedings. This Captive Management Plan differs from the Guidelines in that it concentrates on a program for breeding and addresses the actual elephants held by the zoos including the elephants proposed to be imported.
21.	The plan states that its purpose is "to support the conservation of Asian elephants in the wild through a sustained program of  in situ  and  ex situ  activities. The zoos submit that their program will support conservation  in situ  in a number of ways including, the "development of husbandry expertise (etc) for the benefit of range countries, provision of veterinary resources and training to range country personnel, fundraising to support field conservation projects..., contribution to research on elephant biology... [and the] development and delivery of education and awareness programs...". The aim of the  ex situ  program is to establish a population of elephants that is numerically self-sustaining through breeding. The zoos propose that they will achieve this aim as a result of their commitment to responsible reproductive management of their elephant population by means of careful husbandry, behavioural and social management and the use of available technology. They acknowledge that a need for gene diversity may require additional import of elephants in the future. The program seeks to use both natural breeding and assisted reproductive technology involving artificial insemination and sperm-sorting to enable sex-selection.

Permits

22.

Melbourne Zoo made application to the Commonwealth Department of the Environment and Heritage on 2 March 2004 for a permit to import three Asian elephants. Taronga Zoo made a similar application to import four female Asian elephants on 16 June 2004. Melbourne and Taronga Zoos jointly made an application to the Department on 28 May 2004 for approval of the Captive Management Plan as a co-operative conservation program. The application was accompanied by the Captive Management Plan in an earlier form. The latest version was subsequently substituted. Auckland Zoo in New Zealand was originally involved with the proposed importations. An additional female and Koong were to be imported into Australia and exported to New Zealand. In about May 2005 Auckland Zoo, while remaining committed to the ARAZPA program, decided no longer to receive the two elephants. The female, which did not fit in well with the other elephants and had proved difficult to handle in Thailand, was dropped from the proposal and Taronga Zoo took up the proposal to import Koong. The Taronga Zoo application accordingly increased from four to five elephants.

23.

On 15 July 2005 the Minister for the Environment and Heritage approved the Captive Management Plan as a co-operative conservation program. On 20 July 2005 the Minister issued permits to Melbourne Zoo for the import of three Asian elephants from Thailand and to Taronga Zoo for the import of five Asian elephants from Thailand. The permits contain the following nearly identical conditions:

"1. VALID FOR ONE CONSIGNMENT ONLY

2. If necessary, a Quarantine/Health certificate to accompany specimen(s) listed on this permit.
3. The permit holder must complete and return the pink copy of this permit to the Department of the Environment and Heritage within two weeks of the consignment occurring.
4. The specimen(s) (including progeny) will not be used for commercial purposes.
5. 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 behavioral and biological needs of the specimen(s).
6. 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).
7. 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).
8. The specimen(s) (including progeny) will be used in an approved co-operative conservation program.
9. 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.
10. 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 Island quarantine facility before being transported to Melbourne Zoo. [Melbourne only]
11. This permit applies to individuals identified by the microchip numbers 114773092A; 121714652A and 116736646A. [Melbourne only]
11. All animals are to be imported to the Cocos Island quarantine facility before being transported to Taronga Zoo. [Sydney only]
12. All Commonwealth and State/Territory requirements in relation to this specimen(s) must be met."

24.	The Minister also signed a letter relating to his approval of the Captive Management Plan as a co-operative conservation program. The date of the letter is not clear but it is probably a date between 20 and 29 July which is probably the date on which it was sent. The letter contained the following:

"I am pleased to advise that I am satisfied that the program to be conducted in accordance with the  ARAZPA Captive Management Plan for Asian Elephant , together with the  Guidelines for Management of Elephants in Australasian Zoos  and your further correspondence to my Department of 6 December 2004, meets all the statutory requirements for a cooperative conservation program under the EPBC Act.
...
I have therefore approved the program in accordance with the Act and Regulations."

25.

On 20 July 2005 the International Fund for Animal Welfare (Australia) Pty Ltd, the Humane Society International Inc and the RSPCA Australia made an application to the Tribunal for review of the decisions to issue the permits to import the elephants. No issue has been raised as to the standing of the applicants and we accept that they have standing.

Legislation

26.	Sub-section 303CD(1) of the  Environment Protection and Biodiversity Conservation Act 1999 (Cth)  makes it an offence to import a specimen included in Appendix I, II or III to the  Convention on International Trade in Endangered Species of Wildlife, Fauna and Flora (CITES) . Asian Elephants are included in Appendix I. The prohibition does not apply if the specimen is imported pursuant to a permit issued under s 303CG. A permit can be issued subject to conditions: s 303GE
27.	CITES was done at Washington on 3 March 1973. It entered into force in Australia on 27 October 1976. The Preamble to the Convention emphasises "that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade". The operative parts of the Convention regulate imports and exports. We do not need to address these provisions directly because we must act on the provisions ofthe Act which enact the provisions of the Convention for Australia. These provisions appear to be more stringent than the provisions of the Convention.
28.	Article IX provides for the creation of a management authority and scientific authority by each party to the Convention. Trade in Appendix I species is regulated pursuant to Article III by reference to specific functions of the management and scientific authority of both the importing and exporting state. For the exporting country, those requirements are as follows:

"2. The export of any specimen of a species included in Appendix I shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met: 
(a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species; 
(b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; 
(c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

(d) a Management Authority of the State of export is satisfied that an import permit has been granted for the specimen."

29.	For the importing country, those requirements are as follows:

"3. The import of any specimen of a species included in Appendix I shall require the prior grant and presentation of an import permit and either an export permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met: 
(a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;

(b) a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

(c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes."

30.	The management authority and scientific authority for Thailand is the National Park, Wildlife and Plant Conservation Department. The management authority for Australia is the Minister for the Environment and Heritage. The scientific authority for Australia is the Secretary, Department of the Environment and Heritage.
31.	Article XI of the Convention provides for meetings "of the Conference of the Parties" at least every two years. One of the roles of the Conference is "where appropriate, [to] make recommendations for improving the effectiveness of the present Convention". Recommendations of one such Conference relating to what are "commercial purposes" will subsequently become relevant.
32.	Permits for importation may be issued by the Minister for Environment and Heritage (subs 303CG(1)). The issue or refusal of a permit is reviewable by this Tribunal (subs 303GJ(1)).
33.	Subsection 303CG(3) provides that "[t]he Minister must not issue a permit unless the Minister is satisfied that:

"(a) the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of any taxon to which the specimen belongs; or

(ii) the recovery in nature of any taxon to which the specimen belongs; or
(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(b) the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(c) if the specimen is a live specimen that belongs to a taxon specified in the regulations – the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and
...

(f) if the permit authorises the import of a CITES specimen:

(i) the proposed import would be an eligible non-commercial purpose import (within the meaning of section 303FB)..."

34.	Subregulation 9A.05(3) of the  Environment Protection and Biodiversity Conservation Regulations 2000  provides that for paragraph 303CG(3)(c) the conditions include:

"(b) the person receiving the animal is suitably equipped to manage, confine and care for the animal, including meeting the behavioural and biological needs of the animal."

35.	Section 303FB relevantly provides:

"For the purposes of this Part, the import of a specimen is an  eligible non-commercial purpose import  if, and only if:

(d) the import of the specimen would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF."

36.	Section 303FF relevantly provides:

"(2) The import of a specimen is an import for the purposes of conservation breeding or propagation in accordance with this section if:
...

(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c) the program is a program that, under the regulations, is taken to be an approved co-operative conservation program; and

(d) the import is not primarily for commercial purposes;"

37.	Regulation 9A.12 provides:

"(1) For paragraphs 303FF(1)(c)and (2)(c)of the Act, a program is taken to be an approved cooperative conservation program if the Minister tells a participant in the program in writing that the Minister is satisfied that:

(a) the program’s objectives are based on the conservation status and conservation needs of the species of which the specimen is a member; and
(b) it is operated in a way that:
(i) applies best practice to the management of husbandry, genetics, biology and behavioural needs of the species to which the specimen belongs; and
(ii) is not detrimental to the survival of the species in the wild; and
(c) it is operated with the intent of conserving the species (in the wild or in captivity, or both); and
(d) it does not allow a specimen, used in the program, to be used for commercial purposes; and
(e) it takes into account the conservation breeding or propagation needs of each country from which specimens are imported; and
(f) a specimen is removed from the program only in accordance with the program’s objectives; and
(g) a specimen is not moved between institutions within the program, or out of the program, in a way that is detrimental to other conservation programs or activities; 
and
(h) for a live export of a koala, platypus, wombat or Tasmanian devil, or an animal of an eligible listed threatened species, the exporter, the importer and the Department enter into an agreement about the treatment and disposal of the animal and any progeny of the animal.

(2) A participant in a breeding or propagation program may apply to the Minister in writing for a decision under subregulation (1), and must include with the application enough information for the Minister to decide whether the program has taken into account the views of:

(a) authorities in the States, Territories or countries where the relevant species occurs naturally; and
(b) international organisations that are concerned with the conservation status and needs of that species.

(3) For the purpose of deciding whether a program’s objectives are based on the conservation status and conservation needs of a species, the Minister may take into account the views of bodies mentioned in paragraphs (2)(a) and (b).
(4) If the Minister ceases to be satisfied of any of the matters mentioned in subregulation (1):

(a) the Minister must tell the person who applied under subregulation (2) in relation to the program, or any other person nominated by the person who so applied, in writing, of that fact; and
(b) at that time the program ceases to be an approved cooperative conservation program."

38.

The provisions of the legislation we have set out are confined to those provisions relevant to the issues which have been relied upon before us by the parties. There are other relevant provisions. However, neither party has sought to base submissions on them and we are satisfied that, to the extent to which those matters require separate consideration, they support decisions in favour of issuing import permits.

Submissions

39.	The applicants rely upon a number of the legislative provisions to submit that the decision of the Minister was not the preferable decision and that we should decide that the applications for import permits should be refused.
40.	The applicants submit that the Tribunal should not be satisfied under subs 303CG(3) that:

(a) the importation of the elephants  "will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of [Asian elephants]; or

(ii) the recovery in nature of [Asian elephants]"  (Para 303CG(3)(a)).

(b) the elephants  "were not obtained in contravention of, and  [their importation]  would not involve the contravention of, any law, of the Commonwealth, of a State or of a Territory"  (Para 303CG(3)(b).
(c) the conditions that, under the regulations are applicable to the welfare of the elephants, have been, or are likely to be, complied with; such conditions relevantly being that the Melbourne and Sydney Zoos are  "suitably equipped to manage, confine and care for [each elephant], including meeting the behavioural and biological needs of [each elephant]"  (Para 303CG(3)(c) and subreg 9A.05(3)(b)).
(f) the elephants  "would be eligible non-commercial purpose import[s](within the meaning of section 303FB" , that is, relevantly,  "the import of the elephants would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF"  which occurs if, relevantly:

"(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c) the program is a program that, under the regulations, is taken to be an approved co-operative conservation program; and

(d) the import is not primarily for commercial purposes."

The Witnesses

41.	We had an array of expert evidence before us. There were seventeen expert witnesses. Some of them were employed by the zoos. All of them touched, to some extent, on issues relevant to what we will call "the welfare requirement". There was little conflict in their evidence except when they came to their conclusions.
42.	The following witnesses gave evidence:

Dr Robert Atkinson  is the Head of Wildlife Department of the RSPCA (UK). He has a Ph.D. in behavioural ecology from the University of Oxford and he has worked as an elephant keeper/manager. He gave evidence on elephant welfare in urban zoos and handling techniques.

Dr Jacob Cheeran  is a veterinary surgeon. He is also the Senior Scientist and Professor in Charge of Pharmacological Control of Wild Animals at Kerala Agricultural University. He has held posts relating to elephant research and conservation and has visited captive elephant facilities worldwide. He gave evidence on the welfare needs of elephants, conservation issues and assisted reproduction.

Mr Guy Cooper  is the Chief Executive Officer of the Zoological Parks Board of NSW. He gave evidence on the commercial elements of the elephant importation and high level decisions such as site selection, Zoo strategy and conservation issues.

Dr Thomas Hildebrandt  is a veterinarian with a Doctorate in veterinary medicine from the Free University, Berlin. He leads the Department for Reproduction Management at the IZW. He gave evidence on assisted reproduction.

Mr Mike Keele  is Deputy Director of Oregon Zoo. He has worked at that zoo since 1971 and currently directs the activities of animal care, health, conservation and research. He has 5 years experience as an Asian elephant keeper. He gave evidence on elephant conservation in zoos, elephant welfare and handling techniques.

Mr Ashok Kumar  has worked in the field of elephant conservation for 15 years. He is currently the Vice Chairman of the Wildlife Trust of India (a non profit conservation organization). He gave evidence about the conservation value of keeping elephants in urban zoos.

Dr Michael Lynch  is a veterinarian at Melbourne Zoo with 16 years experience in his field (14 of those at Melbourne and Werribee Park Zoos). He gave evidence on assisted reproduction and the welfare of the elephants at Melbourne Zoo

Mr Gary Miller  is the Elephant Manager of Taronga Zoo. He has a Science degree. He has been an elephant keeper for over 30 years. For much of that time he has been a supervisor of elephants and other zoo animals, as well as staff. He gave evidence about the elephant selection and acquisition process, the Taronga Zoo facilities and resources, proposed training methods (including enrichment techniques) and the welfare issue broadly. 

Dr Richard Montali  is a veterinary pathologist. He was pathologist, then Head of Pathology at Smithsonian National Zoo in Washington DC from 1975 until 2004. He has acted as pathologist at Taronga Zoo. He did not give oral evidence but furnished a report which deals which with the ability of the Zoos to meet aspects of the welfare needs of the elephants.

Ms Laura Mumaw  is the Chief Executive Officer of the Zoological Parks and Gardens Board of Victoria. She has a Masters of Science degree. She has been involved in the zoo and aquarium industry for almost 30 years, serving as curator, director and CEO. She gave evidence on the history of zoos, the commercial elements of the elephant importation and high level decisions such as site selection, Zoo strategy and conservation issues.

Mr Peter Myroniuk  has a Master of Science degree. He has advised on threatened wildlife recovery programs. He gave evidence on the breeding program of the Zoos.

Mr Laurence Pond  is a Program Development Manager with the Melbourne Zoo. He has 19 years experience working with zoo animals and 15 years working with elephants. He gave evidence about the elephant selection and acquisition process, Melbourne Zoo facilities and resources, proposed training techniques (including enrichment techniques) and the welfare issue generally.

Dr Joyce Poole  has researched elephants for 30 years. She has a Ph.D. in animal behaviour. She has observed elephants in the wild and worked for their conservation and welfare for many years. She gave evidence on elephant welfare.

Mr Alan Roocroft  has worked with elephants for over 40 years. He operates a consultancy business in the field of zoo elephant management. He visits up to 200 elephants in zoos each year, advising on elephant management, training, facility design and husbandry practices. He gave evidence on the welfare issue, the Zoo’s facilities and resources.

Dr Miranda Stevenson  has a Ph.D. in animal behaviour. She has worked intermittently with elephants since 1979. She is currently the Director of the British and Irish Association of Zoos and Aquariums. She gave evidence on the welfare of elephants in zoos and handling techniques.

Ms Belinda Stewart – Cox  has worked in wild elephant conservation for 8 years. She has a Masters degree in Conservation and Tourism. She gave evidence on the inadequacies of the Thai registration system and illegal trade in wild elephants.

Dr Jonathan Wilcken  has an undergraduate degree in ecology and a Masters degree in Conservation Genetics. He is an Executive Officer of ARAZPA and has worked as a population biologist for ARAZPA in the past. He gave evidence on the breeding program proposed by the Zoos.

43.	The means by which most of the evidence was taken was the process now frequently used in the Tribunal which the Tribunal has called "concurrent evidence". All of the witnesses prepared reports or made affidavits. The reports and affidavits were admitted without objection except as to relevance. Prior to giving evidence witnesses whose evidence related to similar areas of expert knowledge conferred with one another. This process involved up to four witnesses at a time. Legal representatives were not present. Sometimes the meeting was wholly or partly by telephone including international telephone calls. Witnesses who gave evidence on more than one area of expert knowledge were involved in more than one meeting. The witnesses who took part in this process included the chief executive officers and other employees of the zoos. The chief executive officers were also cross examined conventionally on non expert issues. During their meetings the experts were asked to isolate the matters on which they reached agreement and the matters on which they continued to disagree. They were asked to reduce this to writing. So far as the Tribunal is aware this process took place without any intervention from the legal representatives except, perhaps, in the provision of typing facilities.
44.	Each group of witnesses took an oath or affirmation to be truthful. They sat alongside one another. Not all witnesses were in the hearing room. Some were overseas. They joined the concurrent evidence session by video link. In one case (Mr Kumar) the evidence was received by telephone. Dr Atkinson and Dr Stevenson gave evidence concurrently from the United Kingdom by video link. At the time they were in separate parts of the country.
45.	At the beginning of each session the agreed statements were received in evidence. The witnesses were then asked, in turn, to state succinctly what they wished to stress as the essential parts of their evidence. Some of the witnesses accepted this opportunity. Others did not. They were then asked, in turn, whether they wished to ask any of the other witnesses questions or to comment on what the other witnesses had said. Counsel for the parties were then invited to ask questions of any of the witnesses. During all this time members of the Tribunal asked questions when they thought it was appropriate.

Analysis

Detriment to survival or recovery

46.	The applicants put their case in two ways. First, if the elephants to be imported were not born in captivity their importation into Australia will reinforce the acts of trade by which they entered captivity and will itself amount to trade in elephants born in the wild. Such trade is detrimental to the survival of Asian elephants and their recovery in nature. Secondly, whether or not the elephants were born in captivity, once they have left Thailand they will be replaced and their replacements may come from the wild. This trade is also detrimental to the survival of Asian elephants and their recovery in nature.
47.	Paragraph 303CG(3) addresses "survival" and "recovery in nature". The words "in nature" do not qualify survival. For many species survival and survival in nature would be little different. The existence of a zoo population of tigers, if none existed in the wild, could hardly be described as survival. However, elephants are different. The evidence is that there are approximately 4,600 elephants in Thailand. Of these approximately 2,900   are in captivity and approximately 1,700 are not in captivity. The number in captivity is sufficiently large to be relevant to survival.
48.	The precise test is "detriment to" survival or recovery. The test can be satisfied by anything which is detrimental including a mere contribution to trade where that trade is detrimental to the survival or recovery in nature of the taxon.
49.	Accordingly, for permits to issue, we must be satisfied that the importations will not:

(i) Be detrimental to; or
(ii) Contribute to trade which is detrimental to:
(iii) The survival of Asian elephants; or
(iv) The recovery in nature of Asian elephants.

50.	Apart from speculation based on reports, mostly anecdotal, relating to trade in wild elephants in Asia, the only evidence before us as to the origins of the eight elephants is that they were born in captivity. That evidence is contained in a letter dated 9 May 2005 from the National Park, Wildlife and Plant Conservation Department to Mr Ian Cresswell, Assistant Secretary, Wildlife Trade and Sustainable Fisheries Branch stating that the elephants are source code "C" which means that they were bred in captivity. The Thai Department is both the scientific and management authority for the purposes of CITES. We have evidence before us that the system of registration of particulars of elephants held in captivity is less than satisfactory. Recording of data relating to birth is not required until an elephant is eight years old. The fact remains, however, that we have some evidence in the form of a letter from an agency of the Government of Thailand that the elephants were born in captivity and nothing but speculation that they were not. In that state of evidence we are satisfied that the elephants were born in captivity.
51.	There is some evidence before us that elephants are captured from the wild. There is evidence, for example, that the number of elephants in captivity in Thailand has increased by more than the number of recorded births in captivity. There is evidence of trade in wild elephants in Myanmar. There is evidence that calves are in demand in Thailand as tourist attractions and for entertainment. It is reported that approximately 50 calves enter Thailand from Myanmar each year and that these calves are likely to have been taken from the wild. The evidence is, however, confined to assertions in reports and articles and is not particularly satisfactory. There is no evidence before us of any direct relationship between the capture and sale of wild elephants and the export of elephants from Thailand. In particular, there is no evidence connecting the eight elephants we are dealing with and such trade.
52.	The demand for young elephants born in captivity may be less than the supply. We have no precise evidence on that. We note, however, that a reduction in logging in Asian countries has reduced the demand for elephants. There is also no evidence of any direct relationship between the capture and sale of wild elephants and the export of elephants from Thailand.
53.	The number of elephants proposed to be imported is small. We find that they were born in captivity. We accept that there may be elephants in captivity which were born in the wild. We accept that there may be some elephants being taken from the wild at the present time. However, the evidence before us does not permit any precise finding that there is such conduct and certainty does not permit us to quantify it.
54.	We accept that where there is a trade which is detrimental to the survival or recovery in nature of a taxon then small contributions to that trade will be covered by the section. In that context we ask ourselves whether the evidence of trade in wild elephants justifies a relevant finding of detriment.
55.	There is no evidence before us of any immediate threat to the population of either wild or captive elephants in Thailand. One of the applicants’ witnesses was Dr Cheeran. The evidence of Dr Cheeran was to the effect that there was nothing to be gained by attempting to increase the population of elephants in Thailand which are not in captivity. This is not because elephants in the wild are at their historic levels but because the land available to elephants has been continually reducing as human settlement expands. Pipelines and other barriers now prevent elephants from ranging over areas they have previously covered. Human settlement and the use of land for agriculture has further reduced available land. The problem is serious enough for elephants to be at risk from farmers and villages trying to scare them away from settled areas. Against the level of threat posed by these pressures of settlement, trade in elephants seems much less of a threat. Dr Cheeran said this: "Asian elephants are endangered and facing extinction because their habitat is threatened and there is not enough forest cover in range countries to support them."
56.	Noting that the eight elephants were probably born in captivity, noting the number of elephants in Thailand both in captivity and in the wild and noting the lack of any actual evidence that the importations might not only reduce the elephant population by eight but also contribute to detriment to survival or recovery in nature, while also taking the other matters discussed above into account, we are satisfied that the proposed importations will not be detrimental to, nor contribute to trade which is detrimental to, the survival or recovery in nature of Asian elephants.

Contraventions of Australian Law

57.	If we decide that the preferable decision under subs 303CG(1) is that the elephants may be imported into Australia we will have determined that the provisions relied upon by the applicant do not render importation unlawful. However, the applicants raise a particular matter in addition to the matters which depend upon their success in the other matters that they have raised.
58.	Sub paragraph 303CG(3)(f)(i) requires satisfaction that any import is "an eligible non-commercial purpose import (within the meaning of section 303FB)". The purposes specified in s 303FB include:

"(c) the import of the specimen would be an import for the purposes of exhibition in accordance with section 303FE; or
(d) the import of the specimen would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF."

Section 303FE provides relevantly:

"(2) The import of a specimen is an import for the purposes of exhibition in accordance with this section if:

(a) the specimen will be used for the purpose of an exhibition; and
(b) the import is not primarily for commercial purposes; and
(c) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied

(3) In this section:
exhibition  includes a zoo or menagerie."

59.	Regulation 9A.11 specifies the following condition under paragraph 303FE(2)(c):

"(b) if the specimen is a live animal, it does not belong to a CITES 1 species."

Asian elephants are CITES 1 species.

60.

The applicants say that the effect of the above provisions is to prohibit the importation of CITES 1 species for the purpose of exhibition. They say that the importation of such a species for exhibition will be a contravention of a law of the Commonwealth because it is an offence to possess a CITES specimen which has not been lawfully imported (ss 303CD and 303GN). They say that such an importation will continue to be an offence even if the importation has been approved for one of the other permissible purposes.

61.

There are two answers to this argument. First, if an animal is imported pursuant to a permit it will be lawfully imported. The issue of the permit will determine both that the import falls within an enabling and does not fall within an excluding ground. Secondly, although the combination of sections and the regulation set out above has the effect that importation for the purpose of exhibition is not permissible, it does not follow that where importation is permissible for a purpose, the presence of a further purpose, which alone would not have made the importation permissible, will invalidate the permissible purpose. The sections and regulation relied upon do not create a prohibition. They simply remove a particular class of animals (CITES 1 specimens) from the class of animals which may be imported for the purpose of exhibition. In the present case the Zoos do not rely on exhibition (s 303FB(c)) as the basis for their importation of the animals. Provided they are able to satisfy the tests required by the ground upon which they do rely it will not matter that the elephants will in fact be exhibited in zoos.

Management, confinement and care which includes meeting biological and behavioural needs (the Welfare Requirement)

62.	This is the matter which has caused us the greatest difficulty. The legislation proceeds on the basis that the animals will be managed, confined and cared for. It follows at once that the biological and behavioural needs to be met are not to be met in accordance with nature. Management involves human intervention in the way the animals conduct themselves. Confinement involves restricting their movement. Care also involves human intrusion in the processes of nature.
63.	The evidence is that Asian elephants in the wild will travel, when free to do so, between 8 and 22 kilometres each day. No level of confinement will allow this. However, we must decide whether the spaces available in Melbourne and Taronga Zoos nevertheless meet the behavioural and probably the biological needs as well, of the elephants. The Zoos rely, in part, upon the training and enrichment programs. But are they enough?
64.	The legislation contains no assistance as to the meaning of "manage, confine and care for", nor of "behavioural and biological needs" and provides no assistance in resolving the contradictory concepts which the two phrases convey.
65.	The material before us and the literature we have been referred to offers little help. Understandably, the distinguished experts who gave evidence before us and whose careers have been in zoos put forward a different perspective from those who have been involved in the wild or with animals in larger wildlife parks.
66.	Attached to the affidavit of Dr Atkinson is one document which does attempt to address the issue. It is the  Management Guidelines for the Welfare of Zoo Animals  compiled by Dr Stevenson for the Federation of Zoological Gardens of Great Britain and Ireland. They both gave evidence.
67.	Under the heading General Guidance on Health and Welfare in Captivity the following appears:

"Animal welfare is notoriously difficult to define (Stafleu  et al  1996; Broom 1996; Fraser  et al  1997), it is also difficult to measure in that it is difficult to assess the relative qualitative and quantitative comparisons of two different environments (Mason and Mendl 1993). One definition commonly used is that of Broom where the welfare of an animal is defined as  its state as regards its attempts to cope with its environment.  This  state includes its health, physical and mental states and biological fitness. Good animal welfare implies both fitness and a sense of well-being and the animal must be protected from unnecessary suffering. The captive environment may be markedly different from that in which the species evolved. For example in the wild elephants may spend up to 16 hours a day feeding, but in captivity this may be compressed to a much shorter time scale. This difference in feeding time between the captive and wild state requires a  coping  response. The degree of difference between the two regimes in terms of time budgeting could be considered to be an indicator of the extent to which an individual animal’s welfare may be compromised.
Welfare can also be defined as a state in which an animal can fulfil its needs/wants (Stafleu  et al  1996), these may be biological or physical, the fulfilment of which is necessary to cope with the environment and cognitive needs are sometimes included in this. However, only certain behaviour represents what can be described as a need, i.e. that which, when not expressed by the animal, results in suffering. For example foraging (i.e. feeding) behaviour can be considered as a need, in that it has a high survival value and is driven by an almost omnipresent stimulus to feed. Since different species allocate different amounts of time to feeding, the extent to which an animal suffers due to the non-performance of this behaviour will vary. This means that a snake, which hunts infrequently, if denied the opportunity to hunt, will suffer less than a pig denied the opportunity to forage (Appleby 1999), thus animals like elephants, although they are provided with sufficient food in a nutritional sense, may not be provided with sufficient as regards time spent feeding (Shepherdson 1999). Anti-predator behaviour (e.g. escape responses), on the other hand, has a high survival value but is probably not a need as it is only expressed when the stimulus of a predator is present.
Zoos should strive to provide an environment in which captive elephants are required to make the least effort in order to cope which can be achieved by providing for the expression of their behavioural needs (Poole and Taylor 1999) (and see Section 3.5, Elephant Behaviour and Captivity). Attempts to measure welfare can be made using indicators such as adrenal activity, activity levels, levels of stereotypy, degree of immune-suppression, severity of injury, reproductive output, level of disease prevalence, mortality rate etc. These measurements are often impractical and many measures of welfare difficult to interpret (Mason and Mendl 1993), and can only be taken as a guide; however more data relevant to elephants would be extremely useful, in helping to inform management decisions. Further information on behaviour and the captive environments is provided in Section 3.5.
It is therefore useful to have guidance on how to judge welfare, so that better management practices can be developed without relying on the absolute need to prove whether or not suffering is present. For this five principles listed in the SSSMZP are useful.
Provision of Food and Water
Although an animal may be given sufficient calories and nutrients, if it is given them in concentrated form, it may still suffer from feelings of hunger and a lack of foraging opportunities. Consequently attempts must be made to closely match feeding activity seen in the wild. For elephants this can be achieved by providing more poorer quality food (nutritionally) and increasing the intake time.
Provision of a Suitable Environment
The animal’s environment should be maintained so that physical distress is avoided. Management practices must not predispose animals to injury or strain.
Provision of Animal Healthcare
Every attempt should be made to ensure the animal’s physical well-being is maintained. Management practices, which may compromise physical well-being in terms of injury or disease risk, should be avoided. Thus rather than merely treating foot problems, which requires training, zoos must develop environments in which foot problems are unlikely to occur.
Provision of Opportunity to Express most Normal Behaviour
Attempts should be made to identify which aspects of behaviour are important to the elephant, and subsequently to provide for the expression of these as far as possible. Attempts should also be made to provide animals with some choice and control over the way in which they spend their time. Reference to wild time-budgets will be required.
Provision of Protection from Fear and Distress
Every attempt should be made to ensure that fear is not a significant part of the life of elephants in captivity. Thus the role of fear in training should be minimised and training which might cause a fearful response should only be used if there is a proven net benefit to the animal’s welfare."

The SSSMZP is the Secretary of State’s Standards of Modern Zoo Practice.

68.	The Guidelines contain the following as to the size of outdoor areas:

"The outside area should be as large as possible. The minimum size of 8 animals (ie. females over 2 years) is 2,000 sq.m and another 200 sq.m. should be added for each additional cow. Ideally no outside area, designed for cows and bulls, should be less than 3,000 sq metres in area. The outside bull pen must be no smaller than 500 sq.m. If possible the bull should be allowed to roam with the cow herd."

69.

New Zealand legislation also offers some assistance as to what "biological and behavioural needs" might mean although it is not binding and not even persuasive unless our overall consideration causes us to conclude that it represents the meaning of the phrase as used in the Commonwealth Act. In the  Animal Welfare Act 1999  (New Zealand) "physical, health and behavioural" needs are defined in s 4 by what are referred to as the "five freedoms". These are:

"• Proper and sufficient food and water;
• Adequate shelter;

• Opportunity to display normal patterns of behaviour;

• Physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress

• Protection from, and rapid diagnosis of any significant injury or disease."

The five freedoms contain parallels to the five principles of the SSSMZP.

70.	We repeat that the word "confine" implies restriction in movement. Accordingly, meeting biological and behavioural needs in accordance with the requirements of the regulation must be capable of achievement notwithstanding restriction of movement. The tasks of managing and caring imply human intervention. Accordingly, meeting biological and behavioural needs in accordance with the requirements of the regulation must be capable of achievement notwithstanding the imposition of some controls. However, notwithstanding the material we have referred to on what welfare or behavioural and biological needs might mean we find it very difficult to be more specific than we have been in this paragraph when seeking to determine the meaning and extent of the regulation.
71.	A matter which should be borne in mind as part of the context is that the primary purpose of the Convention upon which the legislation is based is the conservation of threatened species and not the avoidance of cruelty to animals. State legislation, such as the  Exhibited Animals Protection Act 1986  (NSW),deal with the actual conditions of animals in zoos. Nevertheless, we accept that the legislation does address welfare issues and the avoidance of cruel treatment.
72.	Elephants walk long distances on a daily basis in the wild. It does not much matter whether they walk 8 km or 22 km or more or less. They do so, at least partly, in search of food. But they would cover much more ground than is available in a zoo, certainly an urban zoo, whether there was plentiful food available in one place or not. They like bathing in water, including swimming, which takes all weight off their feet. In small areas, without training and enrichment, they develop stereotypical behaviour such as swaying and head nodding. On hard surfaces, particularly if they cannot lie down easily at night, they develop foot problems. Excess weight as a result of insufficient exercise can also lead to foot problems.
73.	The only real measure of the effect of confinement is the exhibition of stereotypical behaviour. Our questions of the experts about how one could detect and measure stress or distress levels in elephants caused by confinement did yield some references to measuring steroid levels through urine tests but it was not suggested that these were of any real assistance in our task. We have nothing more to guide us other than the conflicting impressions of the experts.
74.	It is easy to assume that depriving an animal of the opportunity to roam over the long distances which it would cover in the wild will obviously deprive it of a behavioural need; but, apart from the fact that the legislation requires us to proceed on the basis that the welfare requirement can be met notwithstanding confinement, there are other problems with such an assumption. Arguably it is merely an opinion based on an assumption that behavioural needs can only be met in an environment which replicates the situation in the wild. We do have evidence before us (from Mr Mike Keele) that some elephants which are kept in very large enclosures of up to 75 acres only make use of enough space to meet their needs relating to food, water and shade. Where these needs are provided in a very small area, say along 100 yards of fence line, then that is all they use. Also, the elephants in question were born in captivity, and if we are wrong in that, they have at least lived in captivity from a very early age. They have not had the opportunity to roam many kilometres per day. Their life, until the Zoos assumed their care, was probably spent entertaining tourists. We must remember that the legislation we are considering is concerned with the welfare requirements of the animals actually proposed to be imported and not the welfare requirements of the taxon as a whole. In addition, some needs such as avoidance of risks of illness and injury and the availability of treatment should they occur, are better provided for in zoos.
75.	The applicants’ principal witnesses on the welfare requirement were Mr Roocroft, Dr Poole, Dr Atkinson and Dr Cheeran. Mr Roocroft is from the United States. He does not have academic qualifications but he has spent a lifetime working in and advising zoos, including in Australia in connection with the planning of the enclosures for the elephants subject of this application. He has an outstanding reputation. Dr Poole has extensive experience working with elephants in the wild and in large wildlife parks. Dr Atkinson is from the RSPCA in the UK. He has worked extensively with elephants. Dr Cheeran is from India. He is primarily a veterinarian. He has spent a lifetime advising about elephants in Asia. These witnesses concluded that the facilities being offered by the Zoos did not satisfy the welfare requirement.
76.	The Zoos principal witnesses on this issue were Mr Keele from Oregon Zoo, Dr Stevenson, Mr Pond, the Program Development Manager of Melbourne Zoo and Mr Miller, the Elephant Manager   of Taronga Zoo. All have very extensive experience of working with elephants in zoos. Mr Pond and Mr Miller have both been closely involved with the proposed importations. Both of them have been living in Thailand with the elephants for many months.
77.	Much was made in the evidence, particularly the evidence of Dr Atkinson and Dr Stevenson, of a report prepared for the RSPCA (UK) by Ros Clubb and Georgia Mason of the Department of Zoology of the University of Oxford. Parts of its recommendations have been accepted and will be acted upon by Melbourne and Taronga Zoos. Dr Stevenson was critical of parts of the Clubb and Mason Report. Dr Atkinson accepted part of that criticism. We have taken the Clubb and Mason report into account but we will primarily act on the extensive evidence of the witnesses who provided both written and oral evidence specifically addressing the issues before us. The evidence of Dr Atkinson and Dr Stevenson was helpful but its ultimate assistance to us was qualified because it did not address the precise tests we must consider. The evidence of Mr Roocroft and Mr Keele was more helpful in this regard.
78.	Once the elephants were selected and arrangements were made for their acquisition, custody was transferred to the Zoos who have been responsible for their care for nearly one year. The elephants will be on permanent loan from the Thai Zoological Parks Organisation. Technically, they will remain the property of the Kingdom of Thailand.
79.	Prior to the Zoos assuming custody of the elephants they were kept in four Thai elephant camps. Elephants in such camps are invariably tethered at night and transported by truck during the day to venues where they perform for tourists. They do live, however, in their natural climate and are taken by mahouts to nearby rivers for bathing.
80.	Both Mr Pond and Mr Miller have a much closer knowledge of these elephants than do the other witnesses, but they have the interest associated with their being employed by the Zoos and involved with the proposed program.
81.	Messrs Pond and Miller point out that the area available at the Zoos is larger than the minimum prescribed by the ARAZPA Guidelines. However, that is not surprising because the Guidelines were developed by people from Australian zoos, including Melbourne and Taronga Zoos. What is more persuasive is that the ARAZPA Guidelines are more generous than the Guidelines of the Federation of Zoological Gardens of Great Britain and Ireland, the European Association of Zoos and Aquaria Elephant Husbandry Guidelines and the American Zoo and Aquarium Association Standards. However, this also falls short of being conclusive because these other guidelines were probably prepared by the zoos themselves and because there are many elephants in European zoos in confined spaces.
82.	The applicants would no doubt accept that the facilities in a number of European zoos, so far as space, floor surfaces and sleeping conditions are concerned, are not as good as those proposed by Melbourne and Taronga Zoos. However, their very point is that these conditions do not satisfy the import conditions of the Australian legislation. Zoos which already have elephants may be entitled to retain them in unsatisfactory conditions but this case is not about that. It is about the facilities and conditions into which young elephants should be imported in 2005.
83.	The Zoos also propose enrichment programs and training for the purposes outlined above. These programs will be varied. Where elephants are in direct contact such as is proposed at Taronga and Melbourne Zoos training is desirable. An element of trust develops between the keepers and the elephants, in the same way as it does between the elephants and their mahouts in Thailand. There is some negative connotation regarding training if it is interpreted as dominating the elephant. However, as a dog in its home, a horse trained for riding or racing, or a child at school must learn appropriate behaviour, so must a captive elephant. Provided it is trained and treated appropriately, and not injured or harmed or treated cruelly, training is essential.
84.	There are proposals to walk the elephants in the Zoos. In particular, there is a proposal by Taronga Zoo to walk the female elephants during the day to the enclosure to which Koong is to be transferred on maturity. Walking elephants in public can involve risks. Public safety is paramount. The applicants’ witnesses, Mr Roocroft in particular, thought that this proposal would be good for the elephants, assuming it could be achieved. We consider that we need some further evidence relating to this proposal.
85.	We have described the floors of the barns and we have set out above the provisions of the ARAZPA Guidelines relating to barn floors. It is hard to avoid concluding that lying on a flat although sloping concrete floor with the merest covering of rubberised material may not provide satisfactory sleeping conditions for an elephant. This was the reaction which we had when we visited Taronga Zoo on the first day of the hearing. When we visited Melbourne Zoo on the following day we saw the male elephant (Bong Su) lying outside on a large sandy loam pile next to a swimming pool. When he got up the way his body had moulded the soil was obvious. We were told that a normal sleeping position for an elephant is to lie down. Apparently they can also sleep standing up. That is not unusual for four legged animals. However, elephants usually only sleep standing up when it is difficult to lie down.
86.	Taronga Zoo does not yet have a mound like the Melbourne Zoo although one is proposed. We think it is essential. We would need to be satisfied that the mounds in both zoos will be sufficiently large to meet the needs of all the elephants that will be there.
87.	The elephants in both Zoos will have access to the outdoors at night. It is likely that they will sleep there. Elephants like social contact at night and they often stay outside. However, both Sydney and Melbourne can be cold at night in winter. It may not be as cold at night as some parts of Europe where elephants are kept but it is much colder than the elephants’ natural habitat. It is for this reason that there is heating in the barns. Nevertheless, elephants appear not to notice cold for some time perhaps because their bulk keeps them warm. It can be assumed, however, that there will be many occasions when the elephants will choose to sleep in the barns.
88.	Mr Roocroft has recently written on the values of proper rubber flooring. Dr Cheeran had concerns about the hardness of the floors in the barns. It is not entirely clear that the ARAZPA Guidelines as to barn floors have been fully implemented. Dare we add that common sense says that it is not appropriate for the weight of an elephant lying on its side to be carried on a hard surface. We are conscious of the fact that the barns must be designed to enable efficient and hygienic cleansing. They satisfy this requirement. We remain concerned, however, about the provision of some softer surface. If we are otherwise in favour of the issuing of import permits we will need to be satisfied that satisfactory facilities are available to achieve this.
89.	The Zoos have agreed to give good faith consideration to these issues and to accept some conditions requiring it as a term of the issue of the permits. Closed circuit television is to be installed in the barns. We are not persuaded that this is sufficient. We will give the Zoos a further opportunity to address this issue before we finally determine the matter.
90.	Another issue raised by the applicants is the fact that none of the elephants are related. As the ARAZPA Guidelines recognise, the social grouping of elephants surrounds a mother and her offspring. That will not be present in either of the groups in Melbourne or Taronga Zoos. However, the elephants have begun to form social bonds having been kept together for the last year. In the case of Melbourne Zoo the matriarch is intended to be Mek Kepah, the older female elephant who is already there. In the case of Taronga Zoo it is intended to be Pornthip the oldest elephant in the group.
91.	It would be very difficult for a zoo to find a family group of five elephants available to be imported to Australia. Taking care to keep family groups together does not seem to be a priority in Thailand. The present elephants have long been separated from their mothers and siblings. There is no practical possibility of their being reunited. While the behavioural needs of the elephants in question may be enhanced by being in their own family group that will never happen. Zoos in Australia have traditionally kept only one or two elephants together. They have not tried to develop family groups. Part of what the Zoos are trying to do by this project is to develop the best available substitute for family groups. In a way, what they are criticised for is an attempt to make better provisions to satisfy social grouping needs. The elephants are still not mature or have only recently matured and they have already been living together for some time. We think that what the Zoos are proposing is positive in terms of the welfare requirement. In oral evidence Dr Poole conceded that, in the context of trying to create a family unit for a number of unrelated elephants, the actions proposed by the Zoos were in fact good.
92.	Historically, elephants in zoos have tended to have foot problems. Bong Su is an example. However, Bong Su’s problems were developed in the previous elephant enclosure at Melbourne Zoo. Foot problems can result from hard surfaces and confined spaces for resting indoors, as well as excessive weight. Melbourne and Taronga Zoos have natural outdoor surfaces, a proposed exercise program and room both inside and outside for the elephants to lie down at night. The barns contain good facilities to enable the elephants’ health to be monitored. That should avoid foot problems.
93.	When we look over the issues relating to the welfare requirement we find that the negative factors do not mean that it is not satisfied. For example, although the space available is not large we find it is adequate to satisfy the statutory requirements, particularly when we take into account the Zoo’s proposals for training and enrichment. Accordingly, taking all the above matters into account, but subject to satisfactory arrangements being made with respect to matters we have outlined, we are satisfied that the Zoos are suitably equipped to manage, confine and care for the elephants, including meeting their behavioural and biological needs.
94.	We note that both Melbourne and Taronga Zoos have other facilities with greater space availability. Melbourne has Werribee Park. Taronga has the Western Plains near Dubbo. We also note that the Zoos seem to accept that facilities providing more space at these sites would in fact be preferable to the more confined spaces in the city zoos. However, the primary proposal of both Zoos is to house the elephants in the cities. We have come to our conclusion under the legislation on this basis.
95.	We must determine whether import permits should be issued. That is our statutory obligation. We note that the test does not relate to the future but to the present and does not relate to the way the elephants will in fact be managed, confined and cared for but to whether the facilities are adequate. This is how we have approached our task while recognising that the presence of facilities which are adequate cannot be addressed in a vacuum. The facilities must be facilities that are intended to be used and the manner of that use must be satisfactory. Nevertheless, we note that State and Territory legislation will be relevant to the conditions under which the animals are actually kept.
96.	Although we are satisfied on the evidence that the welfare requirement is satisfied time will tell whether any problems do arise. We note that moving the animals to other places will be an option if there are problems. The vigilance with which the public, including the applicants, will watch the elephants will be likely to ensure that if stereotypical behaviour or health problems emerge that will become quickly known. State instrumentalities and public opinion itself will then be likely to ensure that the problems are promptly and adequately responded to, if they are not even more promptly responded to by the Zoos themselves.

Non-Commercial Purpose

97.

Because Asian Elephants are classed CITES 1, they cannot be imported for the purpose of exhibition. The purpose relied upon by the Zoos is "conservation breeding or propagation." There are specific matters on which we must ultimately be satisfied. By reference to the paragraphs of subs 303FF(2) they are:

(b) that the elephants are  "for use in a program the object of which is the establishment and/or maintenance of a breeding population; and"
(c) that  "the program is a program that, under the regulations, is taken to be an approved co-operative conservation program; and"
(d) that  "the import is not primarily for commercial purposes."

98.	The primary test laid down in subpara 303CG(3)(f)(i) is that "the proposed import would be an eligible non-commercial purpose import". Those words form part of the context in which we must understand the balance of the legislative test but they are, in terms, supplanted by subs 303FB(d). That effectively provides an exclusive definition of the words in s 303CG. The legislation then requires attention to be turned, relevantly, to subs 303FF(2). That does not provide an exclusive definition but it does have the effect that where its provisions are satisfied an import will be, without more, an import for the requisite purpose and accordingly "an eligible non-commercial purpose import" within para 303CG(3)(f). All this is relevant because the effect of subs 303FF(2) is that if a "specimen is for use in a program the  object  of which is the establishment and/or maintenance of a breeding population" and the other requirements of that subsection are met, then the import of the specimen is "an import for the  purposes  of conservation breeding or propagation." Accordingly, the question upon which we must focus, in the first instance, is whether the elephants are for use in a program the object of which is the establishment and/or maintenance of a breeding population.
99.	There is much evidence before us as to the difficulty of breeding elephants in captivity. To date there has been no breeding in the Australasian population of elephants. The proposals in the Captive Management Plan are ambitious and we note that assisted reproduction is likely to be a critical element in the success of the program.
100.	The evidence of Mr Myroniuk and Dr Wilcken provides some support for the proposition that a self sustainable breeding population is achievable in Australia. The evidence is based on computer modelling using a data set which has been sourced from the birth and mortality rates of the elephant population in European zoos between the years 2000 and 2004. It was suggested that if the Australian program can achieve similar birth and mortality rates as the European population a self sustainable population is achievable. Mr Myroniuk pointed out that the European data was based on a population which included several hundred elephants and that projections for the much smaller Australian population are at much greater risk to random events (e.g. a cow dying as a result of birth complications). Potential difficulties with the supply and management of bull elephants highlight the importance of assisted reproductive technology in predicting the success of the program. We note the evidence by Dr Hildebrandt, a leading expert in elephant reproduction technology, that there have been 23 successful artificial impregnations world-wide since 1998. These have resulted in 8 live births, 2 embryonic resorptions and 6 stillbirths which include 2 maternal deaths as a result of birth complications. There were 7 cows still pregnant at the time of his evidence. Clearly this is an evolving technology and we accept that there are a number of concerns with respect to the application of this technology in the proposed Australian setting. A particular problem is the potential excess of male elephants being born. It is proposed that sperm sorting with pre-selection of sex will provide a solution. Sperm sorting has been successful in other settings but is not yet established for use in elephants. Notwithstanding these concerns we are satisfied that the zoos have the requisite expertise to manage a program which requires artificial reproductive technology, particularly as Dr Hildebrandt will continue to collaborate with veterinary practitioners involved with the program.
101.	Notwithstanding the difficulties which have been raised we are satisfied that the program proposed by the Taronga and Melbourne Zoos is a bona fide program that has the object of the establishment of a breeding population. We have no doubt that one of the matters attracting the Zoos to importing the elephants is that the elephants can be exhibited. But equally we have no doubt that the Zoos have the intention of using the imported elephants in the breeding program. The contrary has not really been suggested. The program will or may fail, say the applicants, but they do not say that once the elephants arrive the Zoos will abandon the plan. That accords with our own opinion. We are accordingly satisfied that the elephants are "for use in a program the object of which is the establishment and/or maintenance of a breeding population".
102.	The next matter we must address is whether the program "under the regulations is taken to be an approved co-operative conservation program". By subreg 9A.12(1) "a program is taken to be an approved cooperative conservation program if the Minister tells a participant in the program in writing that the Minister is satisfied" of a number of matters set out in the regulation. The Minister did exactly that in his letter of July 2005. However, the letter was apparently not sent until later in July. It was argued that that required the conclusion that at the time the Minister approved the imports there was no approved program. We think that is an unduly technical view of the legislation. However, there is another reason why the argument must fail. In these review proceedings we will determine afresh whether import permits should be issued. Our decision must be made on the evidence as it is at the time we make it. A written communication within the regulation is undoubtedly now in existence. Accordingly, the test in para 303FF(2)(c) that the breeding program is an approved cooperative conservation program is satisfied.
103.	The applicants have argued that we can review the decision to approve the program. They say that our jurisdiction to review the decisions to issue the import permits must carry with it jurisdiction to review the approval. They particularly rely upon subreg 9A.12(4) which provides that where the Minister ceases to be satisfied of any of the matters which are a prerequisite of approval for a captive breeding program the Minister must communicate that and the program will cease to be approved.
104.	Neither the Act nor the Regulation confers an express power on the Tribunal to review an approval by the Minister under subreg 9A.12. It follows that we have no jurisdiction to review the approval. In accordance with s 303FF the program satisfies the requirement that it be an approved program. It does not matter that the Minister can cease to be satisfied with respect to his approval. If we have no jurisdiction to review an approval we plainly have no jurisdiction subsequently to revoke it. Nor do the powers contained in s 43 of the  Administrative Appeals Tribunal Act 1975  (Cth) provide any authority. As Downes J explained in Australian Securities and Investment Commission v Donald  (2003) 136 FCR 7 at 20 [51] a distinction must be drawn between the question of whether the Tribunal has jurisdiction and what it can do when it does have jurisdiction. Where the Tribunal does have jurisdiction it can make any decision which the original decision-maker could have made. In the present case the Tribunal has no jurisdiction to review the approval of the program. Accordingly, it has no power to remake the decision sought to be challenged let alone to exercise a power which the decision-maker could have exercised but did not exercise.
105.	This result is somewhat unusual. The matters which are relevant to approval of a cooperative conservation program may be clearly allied to those which are relevant to an application for a permit to import animals. They are in the present case. However, the jurisdiction of the Tribunal is entirely statutory. If the Parliament has not conferred jurisdiction then there is nothing for the Tribunal to consider. Furthermore, there may well be cases in which a number of applications for import permits are made by different applicants pursuant to one approved program. The applicants for import may have had little or nothing to do with the design of the program. A system in which the question of whether the program is approved will be finally determined by the Minister, while the Tribunal has the power to finally determine which animals shall be imported, is quite rational. The CITES Convention and the legislation enacting its provisions in Australia are primarily concerned with protecting endangered species and to do so, in particular, by regulating trade. It is that object, associated with trade, which has attracted the appeal to this Tribunal. The significant act of trade involved is the importation of a specimen. A system under which programs for use of specimens, once imported, are finally approved by the Minister but the issue of permits for importation of individual animals is subject to review by this Tribunal is quite rational even though in some cases, such as the present, there will be an overlap in matters for decision. The resolution of any tension must be that the Tribunal is bound by the decision of the Minister as to the existence of an approved program but that it is not bound in its independent tasks of decision-making by any finding or conclusion of the Minister. The Minister must have decided, for example, that the program which he has approved "does not allow a specimen, used in the program, to be used for commercial purposes" (subreg 9A.12(1)(d). That does not bind us to make a similar finding when we address the question whether "the import is not primarily for commercial purposes" (para 303FF(2)(d)).
106.	The next matter we must consider is this very question. Paragraph 303FF(2)(d) requires us to determine if "the import is not primarily for commercial purposes".
107.	"Commercial purposes" is not defined in either the Act or the Regulations. Subsection 303CM(1) provides that expressions in the Act have the same meaning as they have in CITES. It is immaterial that the expression is not defined in CITES (subs 303CM(1)). The meaning of the phrase "primarily for commercial purposes" has been defined in a resolution of the Conference of the Parties to CITES. Conference resolution 5.10 says the following about the meaning of the word "commercial" and the phrase "commercial purposes":

"2. An activity can generally be described as ‘commercial’ if its purpose is  to obtain economic benefit , including profit (whether in cash or in kind) and is directed toward resale, exchange, provision of a service or other form of economic use or benefit.
3. The term ‘commercial purposes’ should be defined by the country of import as broadly as possible so that any transaction which is not wholly ‘non-commercial’ will be regarded as ‘commercial’. In transposing this principle to the term ‘primarily commercial purpose’, it is agreed that all uses whose non-commercial aspects do not clearly predominate shall be considered to be primarily commercial in nature with the result that the importation of specimens of Appendix-I species should not be permitted. The burden of proof for showing that the intended use of specimens of Appendix-I is clearly non-commercial shall rest with the person or entity seeking to import such specimens."

108.	We will bear these provisions in mind but they do not seem to us to resolve the most difficult issue in the present case. What the explanatory resolutions say is that both "commercial" and "commercial purpose" should be widely construed. Where they do not assist is with respect to the activities of not for profit organisations, which do not produce a surplus from these activities, but which are supported financially by Governments and operate for purposes which are not primarily commercial, but pursuant to statutes by which they were established. Can it be said that when these organisations charge general admission which entitles people to view imported animals, the importation of these animals is primarily for commercial purposes? We think that such imports are "not primarily for commercial purposes".
109.	Both Zoos produce audited annual accounts. They strive to maximise income. The accounts are prepared in a form which is little different to the form used by corporations driven by the profit motive. They earn income from admissions. They earn income from restaurants, cafés and the sale of food and drink. They earn income from the sale of merchandise. They no doubt look to earn income whenever and wherever they can except, no doubt, from activities inconsistent with their statutory objects. They would be unlikely, for example, to market goods the sale of which might be thought to be detrimental to the species such as selling goods made of ivory, even when their sale was lawful.
110.	In commercial terms both zoos operate at a loss. They can only be seen to operate at a profit if one takes into account the funds they receive from Government. The reality is that Government grants make up for the expected losses which result from the zoos not carrying on their activities for commercial purposes.
111.	Everything the Zoos do must be an exercise of their statutory powers. It is important to look at exactly what are their objects and powers.

For Melbourne Zoo they are set out in the  Zoological Parks and Gardens Act 1995  (Vic) as follows:

4. Objectives
The objectives of this Act are-
(a) to conserve, protect, manage and improve the zoological parks and
managed land and the zoological collections;
(b) to promote and increase public enjoyment of the
zoological collections, zoological parks and managed land;
(c) to increase public knowledge and awareness of the
zoological collections and the zoological parks through publications,
educational programs and advisory services and other activities;
(d) to carry out and promote zoological research, the conservation of
wildlife and its natural habitats and the maintenance of biodiversity.

10. Functions of the  Board
The functions of the Board are-
(a) to conserve, protect, manage and improve the zoological parks and
managed land and the zoological collections;
(b) to promote and increase public enjoyment of the zoological collections
and the zoological parks and managed land;
(c) to increase public knowledge and awareness of the
zoological collections and zoological parks through exhibition of the
zoological collections, publications, educational programs, advisory
services and other activities;
(d) to carry out and promote zoological research, the conservation of
wildlife and its natural habitats and the maintenance of biodiversity;
(e) to advise the Minister on matters relating to the Board's functions or
powers or on any other matter referred to it by the Minister;
(f) to provide consultancy and advice services to the public on zoological
matters;
(g) to provide for services and facilities for visitors to the
zoological parks and managed land;
(h) to carry out any other functions conferred on it by this or any other
Act.

For Taronga Zoo they are set out in the  Zoological Parks Board Act 1973  (NSW) as follows:

15 Powers, authorities etc of the  Board  
(1) The Board may establish, maintain and control zoological parks for the following purposes: 
(a) carrying out research and breeding programs for the preservation of endangered species, 
(b) carrying out research programs for the conservation and management of other species, 
(c) conducting public education and awareness programs about species conservation and management, 
(d) displaying animals for educational, cultural and recreational purposes. 
(2) The Board may also maintain and control: 
(a) the zoological park established before the commencement of this Act on the land described in Schedules 3 and 4, under the name of "TarongaZoological Park", and 
(b) other zoological parks on land or premises vested in or held by the Board, whether or not those parks were established by the Board, 
for the purposes referred to in this section. 
(3) The Board: 
(a) may co-operate with, and provide funds and other assistance to, such scientific and other institutions, governments and other bodies and individuals as the Board may determine in connection with species conservation and management and for other scientific and zoological purposes, and 
(b) may investigate and carry out research into: 
(i) the design of, and equipment and procedures in, zoological parks, and 
(ii) the care and well-being of animals kept in zoological parks, 
whether or not those zoological parks are maintained and controlled by the Board, and 
(c) may provide educational services for the public (whether in the nature of lectures, broadcasts, films, publications or otherwise) about species conservation and management, zoological parks and the biology of animals, and 
(d) may provide and charge for such services in connection with zoological parks maintained and controlled by the Board as the Board may determine, and 
(e) may make recommendations or reports to the Minister with respect to matters connected with the Board’s powers, authorities, duties and functions or the administration of this Act. 
(4) The Minister may request the Board to make recommendations or reports to the Minister with respect to matters connected with the Board’s powers, authorities, duties and functions or the administration of this Act and the Board is to comply with any such request. 
(5) The Board may exercise and perform such other powers, authorities, duties and functions as may be conferred or imposed on the Board by or under this or any other Act. 

112.	We think that the "commercial purposes" submissions of the applicants fail at a number of levels. First, we do not think that the primary activities of the zoos involve commercial purposes. Their purposes are education, research, breeding and so on. Education involves exhibition. In Victorian times and earlier it was thought to be educative and a public benefit to make available the opportunity for people to see exotic animals. Neither the advance of motion pictures and television nor the ease with which travel can be undertaken seems to us to have displaced these ideas. In any event, it does not matter if it has. They continue to provide the statutory basis for the activities of both zoos. We add that motion pictures and television are not a good substitute for live experiences or no one would go to the zoo, or, for that matter to the theatre or concerts. Not everyone has the opportunity to travel to those parts of foreign countries where animals can be observed outside zoos. The fact that zoos seek to defray their costs and even to maximise, by earning income, the amount of grant money they can use to further their objects, including the exhibition of animals, does not seem to us to make any part of their activities, let alone the import of animals which will be exhibited, a commercial purpose. If we had to consider the body of subreg 9A.12 we would decide that the use of the elephants by the Zoos for display is not a use for commercial purposes.
113.	Secondly, and assuming we are wrong, it does not seem to us that merely because the numbers who visit a zoo might be increased by a new exhibit and that they might eat and drink more in Zoo restaurants and cafés and buy more souvenirs means that the import of an animal is for a commercial purpose. We accept that part of the reasoning of the zoos in seeking to import the elephants is that they are likely to increase the visitors to the Zoo. We accept that this purpose is quite independent of the purpose of breeding. However, we have already found, and we repeat it, that a substantial purpose of the importation is the breeding program. We are quite satisfied that the import of the elephants is not primarily for commercial purposes.
114.	Thirdly, we are satisfied that the importing of the elephants is not primarily motivated by earning more income at all. We accept the evidence of Guy Cooper, on behalf of Taronga Zoo, and Laura Mumaw, on behalf of Melbourne Zoo, on this issue. That evidence was peppered with references to education and exposing the public to conservation and environmental issues. To the extent to which the Zoos were motivated by a desire to exhibit the elephants, as opposed to using them in a breeding program, we find that the motivation to exhibit was not primarily a commercial purpose.
115.	For all these reasons we have decided that provided the outstanding concerns we have raised in these reasons relating to the Zoo’s facilities are satisfactorily resolved permits to import the eight elephants should be issued. If we are satisfied we will set aside the existing permits and issue fresh permits with additional conditions. The matters upon which we wish to hear further evidence are:

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.

116.

It is important that every effort should be made for this matter to be resolved by Friday 16 December 2005 at the latest. Accordingly, both matters will be listed for mention at 2.30 pm on Thursday 8 December 2005. A time can then be appointed for the reception of further evidence on one day in the following week.