Australian Brumby Alliance Inc v Parks Victoria
[2023] VSC 26
•8 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 03414
| AUSTRALIAN BRUMBY ALLIANCE INC | Plaintiff |
| v | |
| PARKS VICTORIA | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 1 and 2 December 2022 |
DATE OF JUDGMENT: | 8 February 2023 |
CASE MAY BE CITED AS: | Australian Brumby Alliance Inc v Parks Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 26 |
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INTERPRETATION – Plaintiff dedicated to protection of wild brumby populations in Australia – Proceedings commenced in respect of defendant’s program of ground shooting of horses in the Alpine National Park – Three issues presented for determination – (1) Defendant’s contractor required to observe Code of Practice for the Welfare of Animals in Hunting (Revision no.1) (‘Code’) – Offence provision ‘disapplied’ if killing, hunting or shooting is ‘carried out in accordance with a Code of Practice’ – Whether ground shooting program can comply with the Code – Particularly, meaning of ‘hunting’ – Approach to interpretation of the Code – Ground shooting program can comply – (2) Whether ground shooting program prior to 24 October 2022 ‘in accordance with’ the Code – Shooters authorised to carry firearms in National Parks, particularly in respect of ‘an approved Parks Victoria pest animal control or wildlife management program’ – Approach to interpretation of ‘old’ authorisations issued under statute – Ground shooting program ‘in accordance with’ the Code – (3) Aerial shooting of horses contemplated by the defendant in certain circumstances – No aerial shooting presently being undertaken – Whether issue ‘ripe for determination’ – Whether aerial shooting can comply with the Code – Aerial shooting can be in accordance with the Code – National Parks Act 1975 (Vic), ss 17(2)(a), 37(1) & 44, Prevention of Cruelty to Animals Act 1986 (Vic), ss 6(1), 7 & 9, Firearms Act 1996 (Vic), s 3(1), Catchment and Land Protection Act 1994 (Vic), s 3(1), Wildlife Act 1975 (Vic), s 3(1) – Issues determined in favour of the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DI Star KC Mr A Aleksov Ms E Brumby | Bleyer Lawyers |
| For the Defendant | Mr JD Pizer KC Mr OM Ciolek | Maddocks |
HIS HONOUR:
A Introduction
The plaintiff is an incorporated association dedicated to the promotion, protection and humane management of wild brumby populations in Australia.
The defendant is charged with control and management of the Alpine National Park and other lands in Victoria. It must ensure that such land is controlled and managed in accordance with objects of the National Parks Act 1975 (Vic) (‘National Parks Act’) and in a manner that will ‘exterminate or control exotic fauna’.[1]
[1]National Parks Act1975 (Vic) s 17(2)(a)(iii) (‘National Parks Act’).
It is common ground that what the plaintiff refers to as ‘wild brumbies’ and the defendant refers to as ‘feral horses’ are ‘exotic fauna’ within the meaning of the National Parks Act. Except where context requires otherwise, I will refer to them as ‘the horses’.
There is a population of about 5000 or more horses in the Alpine National Park. That population has increased over recent years. At the same time, the Alpine National Park has been affected by large scale bushfires.
The defendant is concerned about the effects of the horses upon the alpine environment, including native wildlife, vegetation and the spread of weeds and disease. The plaintiff does not accept the extent of the threat perceived by the defendant.
Senior counsel for the plaintiff described the horses as living, sentient animals. He emphasised that members of the plaintiff consider the horses to be beautiful and important.[2] It was quite evident that, as senior counsel for the plaintiff described it, the presence and management of horses in the Alpine National Park is a ‘highly controversial’ issue that has provoked ‘heated debate’.[3]
[2]Transcript (‘T’) 5.
[3]T4.
In this general connection, in about August 2016 the defendant prepared the Greater Alpine National Parks Management Plan (‘Management Plan’).[4] Section 4.1.1 of the Management Plan refers to the implementation of ‘humane feral horse control in consultation with the community’.[5]
[4]Exhibit A (Court Book (‘CB’) 741-923).
[5]Ibid (CB799).
Later, the defendant prepared the ‘Protection of the Alpine National Park: Feral Horse Action Plan November 2021’ (‘Horse Action Plan’).[6] The Horse Action Plan is directed to the management of the Alpine National Park over the next 10 years[7] and identifies the horses as the cause of ‘immense ecological damage … in the fragile high country of the Australian Alps’.[8] The Horse Action Plan states that –
The application of feral horse control methods is governed by legislation including the Prevention of Cruelty to Animals Act 1986 (Vic) and the Livestock Management Act 2010 (Vic), and various codes of practice and standard operating procedures.[9]
[6]Ibid (CB974-1028). The Horse Action Plan replaced the Protection of the Alpine National Park – Feral Horse Strategic Action Plan 2018-2021: Exhibit A (CB924-973).
[7]Ibid (CB981).
[8]Ibid (CB983).
[9]Ibid (CB993).
The Horse Action Plan thereafter identifies various ‘control methods’ to be implemented in order to reduce and remove the horse population,[10] including –
(a) ground shooting by contracted professional shooters; and
(b) aerial shooting conducted from helicopters.
[10]See, in particular, Exhibit A (CB999-1004).
In respect of the ‘humaneness’ of the control methods, the Horse Action Plan states –
In Victoria, animal welfare standards are regulated through the Prevention of Cruelty to Animals Act 1986 and Prevention of Cruelty to Animals Regulations 2019. The Code of Practice for the Welfare of Horses (DJPR 2019) has been developed to provide information to improve good welfare practices, encourage the considerate treatment of horses, and set the minimum level of conduct required to avoid cruelty to horses.
The Australian Animal Welfare Standards and Guidelines – Land Transport of Livestock (AHA 2012) also provides relevant standards for horse transport. Other standard operating procedures (SOPs) are created as guides for applying various control techniques, addressing animal welfare issues applicable to each technique.
Consideration of animal welfare in the management of invasive animals is essential to ensure that control techniques are performed humanely. The ‘humaneness’ of a pest animal control method refers to the overall welfare impact that the method has on an individual animal. A relatively more humane method will have less impact than a relatively less humane method. Humaneness is assessed according to the Model for assessing the relative humaneness of pest animal control methods (Sharp and Saunders, 2011), which assesses overall welfare impact based on five domains:
1. Thirst/hunger/malnutrition 4. Behavioural/interactive restriction
2. Environmental challenge 5. Anxiety/fear/pain/distress
3. Injury/disease/functional impairment
The model uses a two-part assessment to examine (A) (for lethal and non-lethal methods) the impact of a control method on overall welfare and the duration of this impact; and (B) (for the lethal methods only) the effects of the killing method on welfare by evaluating the intensity of suffering and duration of suffering caused by the technique.
The humaneness of feral horse control methods were assessed in 2015 by a Humaneness Assessment Panel (HAP 2015), which found that all potential methods for the control of feral horses have some adverse impact on horse welfare. Choosing appropriate methods therefore requires careful consideration of how to mitigate those impacts. Where culling is assessed to be necessary based on a scientific understanding of the environmental impacts, and the relative benefits and disadvantages of various control options, the most humane methods must be deployed (AVA, 2013).
As new technologies or best practice emerge, Parks Victoria will consider their adoption depending on their humaneness, efficacy, cost, practicality, operator and public safety, and environmental impact.[11]
[11]Exhibit A (CB999-1000).
In respect of ground shooting, it is stated –
Ground shooting involves a shooter quietly approaching a group of horses on foot with the intention of culling all the animals in the group. Shooting can be a humane method of destroying feral horses when it is carried out by experienced and skilled professional shooters, the animal can be clearly seen, is within range, and the correct firearm configuration, ammunition and shot placement are used.
This removal method is considered to have a mild impact on the welfare of horses (HAP 2015), in the domains of (3) Disease, injury, functional impairment, (4) Behavioural/interactive restriction and (5) Anxiety/fear/pain/distress, assuming it is conducted in accordance with the standard operating procedure HOR001: Ground shooting of feral horses (Sharp 2011a). As a lethal technique, ground shooting is assessed by evaluating the intensity of suffering and duration of suffering caused by the technique, and therefore the instantaneousness of death is critical.
Welfare outcomes are highly dependent on the skill of the shooter, and their ability to make accurate decisions about whether the shot can be successfully placed. Parks Victoria only use highly accredited and qualified professional shooters to ensure that welfare outcomes are maximised.
Findings from ground shooting programs for kangaroos are instructive for ground shooting of feral horses. In an assessment of the welfare outcomes of ground shooting eastern grey kangaroos (Hampton & Forsyth 2016), high levels of accuracy were observed, resulting in a 98% instantaneous death rate. For those animals not killed instantaneously, the median time to death was 12 seconds. The wounding rate of zero.
Relative to other methods, ground shooting of free-ranging horses has been identified as the most humane, safe and effective method available due to:
•its mild impact on the welfare of feral horses relative to other potentially more impactful techniques such as trapping, roping and mustering;
•its ability to remove complete social groups of horses from remote and fragile ecosystems, with minimal disturbance to ecological values;
•live capture and transport with an ultimate destination of culling at a knackery or abattoir being neither humane nor efficient/cost effective;
•live capture methods not being appropriate for controlling feral horse numbers in remote areas, rugged terrain or where lengthy transport of trapped horses would be required.
Independent experts consider ground shooting as the most humane, safe and effective method available and is an acceptable technique for the removal of individual, or small groups of horses from a location, when performed by skilled operators who hold the appropriate licences and accreditation.[12]
[12]Exhibit A (CB1003).
As to aerial shooting, it is stated –
Aerial shooting is conducted from helicopters and is considered to be an effective method for reducing the abundance of wild horse populations in remote and inaccessible locations, and where feral horse densities are high. It allows shooters to locate and get close to the feral horse (even in remote terrain), quickly and humanely culls animals, and if necessary, to immediately pursue and kill wounded animals (Norris & Low 2005). While aerial shooting has only been practiced exceptionally for feral horse control in NSW, Victoria or the ACT in the last 20 years, it remains a primary control method for extensive feral horse populations in Northern Territory (NTG 2015), Queensland (QGBQ 2016) and Western Australia (KRBA 2016).
There may be circumstances where aerial shooting of feral horses is the most effective technique, including:
•when feral horses in remote or inaccessible areas are suffering from injury or malnutrition, and euthanasia is required;
•during bushfire recovery operations when horses and deer are congregating in streambanks and wetlands or other high value habitats requiring protection;
•to remove the last remaining horses in an eradication area, where ground-based methods have failed; or
•if ground-based removal techniques are demonstrated to have failed to remove sufficient horses to reduce damage to streamsides and wetlands or other high value habitats requiring protection.
Any use of aerial culling of feral horses in Victoria will draw on efficacy and accuracy data from other aerial animal control programs, consideration of the application of the standard operating procedure and the assessment of animal welfare outcomes of helicopter shooting programs in central Australia (Hampton et al. 2017).
As aerial shooting can be performed to standards that minimise animal suffering, aerial shooting may be applied in exceptional circumstances, or if other methods fail to remove sufficient horses to reduce ecological impacts.[13]
[13]Exhibit A (CB1003-1004).
As to the control of small and isolated populations of horses, it is stated –
In accordance with the Greater Alpine National Parks Management Plan (2016), isolated populations of horses, including any deliberately released horses, will be removed where feasible. This is to prevent further spread, and to protect vulnerable biodiversity values in the greater Victorian Alps.
Action:Maintain active surveillance programs to detect the emergence of populations of feral horses in new locations.
Action:Immediately remove any feral horses that have invaded, or have been released to, new areas outside their current distribution in the Alpine National Park.
The Bogong High Plains population of around 100 horses poses a significant threat to the significant number of high-altitude wetlands that occur in this area, as well as the rare snow patch communities with their specific plant associations that are adapted to prolonged snow cover. Reduction of this population to zero horses within three years is a management objective for this plan. There is a risk that horses may persist in low numbers in the Bogong High Plains through potential re-invasion from adjacent Crown lands in the Cobungra and Victoria river valleys, possible illegal release and/or escape of horses into the park, and this may require coordinated action across tenure. Ultimately, complete removal of feral horses from across the Bogong-Cobungra area would achieve permanent protection of environmental values across this area.
Action:Remove the Bogong High Plains population, monitor for reinvasion, and undertake further removals as required.
Action:Develop partnerships with the Department of Environment, Land, Water and Planning to coordinate cross-tenure feral horse control in the Cobungra and Dinner Plain areas to prevent re-invasion of the Bogong High Plains and to protect environmental values.[14]
[14]Exhibit A (CB1006).
Finally, in respect of shooting generally, it is stated that –
In terms of minimising animal suffering, shooting of feral horses by contracted professional shooters has been proposed by a number of stakeholders and welfare organisations as a more humane approach than methods involving capture, transport and being put down as a final outcome (e.g. at a knackery). Professional shooters will be engaged to use specialist equipment to cull free-ranging horses by ground shooting under strict operational procedures. Shooting operations will be audited by independent expert equine veterinarians and strictly managed in terms of humane animal welfare and public safety standards.
As aerial shooting can be performed to standards that minimise animal suffering, aerial shooting may be applied in exceptional circumstances (as described in Section 4.3), or if other methods fail to remove sufficient horses to reduce ecological impacts.
Expert advice, guidance and review on the use of shooting (and other control methods) will form part of operational planning, and advice will be obtained from animal welfare experts, technical specialists, scientists and Parks Victoria’s Feral Horse Technical Reference Group.
Action:Implement feral horse removal by ground shooting using professional shooters, particularly in high priority conservation areas, to reduce environmental damage and minimise the potential for poor animal welfare outcomes.
Action:Apply aerial shooting in response to exceptional circumstances as required, or if other methods cannot meet conservation or welfare objectives.
Action:Seek and review expert advice on the use of shooting and other control methods to ensure best available practices are employed.[15]
[15]Ibid (CB1008).
On 29 July 2022, the defendant entered into a services contract directed to the control of feral animals in the Alpine and Barmah National Parks and surrounding areas (the ‘services contract’).[16] It is presently sufficient to note that pursuant to the services contract –
[16]Ibid (CB1029-1077).
(a) the contractor is engaged to conduct ground shooting of animals in the Alpine National Park and Barmah National Park;
(b) the contractor will use nominated and approved ‘key personnel’ for the purposes of ground shooting operations under the services contract;[17]
(c) the scheduled rates cover, among other things, administration, planning, packing, preparation, travel, 4 x 12 hour shifts of ground shooting, accommodation, firearms, thermal cameras, tracking equipment, GPS, thermal batteries and ammunition;[18]
(d) the services contract specifications are extensive and, in particular, state –
[17]Exhibit A (CB1058).
[18]Ibid (CB1060).
Program Statement
Parks Victoria is engaging suitably qualified and experienced contractors to deliver safe, humane and effective ground shooting of feral animals, including feral horses (primary target), deer, pigs, foxes, goats, cats and rabbits in the Alpine National Park and Barmah National Park (see Maps 1 and 2).
Work is to be conducted from commencement of the contract/s period through to 30 June 2023, with exact scheduling determined by Parks Victoria in negotiation with the successful contractor. Noting there will be 2 options to extend for 1 year each (i.e. a maximum of 3 years for each Project) subject to funding availability and supplier performance, and at the full discretion of Parks Victoria.
Note: if the COVID-19 pandemic, or other unforeseen circumstances, result in a change to the agreed program, a variation to the contract may be negotiated, including the possible postponement of works until a mutually agreeable date.
Introduction
This project will implement intensified and sustained feral animal control through ground shooting to enable survival and recovery of significant ecological vegetation communities, critical habitat and threatened flora and fauna species, and mitigate impacts to Aboriginal cultural heritage values, in the Alpine National Park and Barmah National Park.
The impacts of feral animals on natural and Aboriginal cultural heritage values and the strategic approach that Parks Victoria uses for feral animal control in these parks is described in the Protection of the Alpine National Park: Feral Horse Action Plan 2021, the Strategic Action Plan: Protection of floodplain marshes in Barmah National Park and Barmah Forest Ramsar site [2020-2023] and the Victorian Deer Control Strategy.
Aim
The project aims to reduce the impacts of feral horses, deer and other feral animals and encourage survival and recovery of significant ecological vegetation to communities, critical habitat, threatened flora and fauna species, as well as protect Aboriginal cultural heritage values in the Alpine National Park and Barmah National Park.
Scope of work
This program involves the ground shooting of feral horses (primary target), deer, pigs, foxes, goats, cats and rabbits in the Alpine National Park and Barmah National Park, and surrounding Crown lands (by agreement) under strict security and safety conditions. The work will occur during the day and at night, either on foot and/or from a vehicle, including ATV. The number of operations and the number of teams, fit for purpose vehicles, nights etc. required per operation is provided in more detail in each individual Project description.
Timing
Work is to be completed by 30 June 2023; the proposed program for each park is described in more detail in the individual Project descriptions. The exact dates of operations will be determined in negotiation with the successful contractor.[19]
[19]Exhibit A (CB1067).
(e) the specified general conditions require the contractor to, among other things, adhere to[20] –
[20]Ibid (CB1068).
(i) the firearms use operations plan;[21]
[21]Firearms Use Operations Plan C-0089H: Exhibit A (CB1084-1102).
(ii) the tactical plan;[22]
[22]See, template tactical plan: Exhibit A (CB1095-1096).
(iii) the standard operating procedure HOR001: Ground shooting of feral horses;[23]
[23]Exhibit A (CB1078-1083).
(iv) the ‘Code of Practice for the Welfare of Animals in Hunting (Revision Number 1)[24] (‘Code’); and
(v) the condition of any authorisation granted by the defendant to the contractor’s staff under s 37 of the National Parks Act.
[24]Victoria, Victoria Government Gazette, No G11, 17 March 2005, 529-535 (‘Code’).
In short, in respect of ground shooting, the services contract and associated documents contemplate –
(a) the shooting and killing of animals, including horses, by nominated professional shooters under strict operational, security and safety conditions;
(b) such conditions include teams of professional shooters deployed in vehicles and/or on foot using planning, firearms, thermal cameras, tracking equipment and GPS;
(c) the aim of the program is to reduce the impacts of animals, including horses, in the Alpine National Park; and
(d) completion of the program by 30 June 2023 (although the exact dates are to be negotiated).
The defendant has issued a sequence of authorisations under s 37(1) of the National Parks Act, by which it authorised shooters to use, carry or have a gun or other weapon in National Parks.[25]
[25]Exhibit A (CB1116-1130).
An issue arose concerning an aspect of eight of those authorisations. In argument, they were referred to as the ‘old’ authorisations. In that regard, replacement or ‘new’ authorisations – with, in substance, one amendment – were issued on about 24 October 2022.[26]
[26]Ibid (CB1131-1148).
In three distinct periods since 24 August 2022, covering a period of 15 days in total, the defendant has undertaken ground shooting operations in the course of which horses have been shot and killed in the Alpine National Park. The three periods were complete prior to 24 October 2022.
Somewhat surprisingly, the evidence did not reveal exactly how many horses were shot and killed in the course of those operations. In evidence, Mr Philip Pegler, Manager of Conservation Planning at Parks Victoria, and the principal author of the Horse Action Plan,[27] said that ‘it would probably be in the tens’.[28]
[27]T62.
[28]T70.
It will be evident that the services contract is not directed to the aerial shooting of horses and no such operations have yet relevantly been conducted in the Alpine National Park. In that connection, Mr Pegler deposed as follows –
66.Parks Victoria is satisfied with the efficacy of ground shooting operations that have been conducted to date in the Alpine National Park in reducing feral horse numbers. As such, Parks Victoria is not currently contemplating conducting any aerial shooting operations in the Alpine National Park to control feral horses.
67. If circumstances were relevantly to change and Parks Victoria were to contemplate conducting aerial shooting of feral horses in the Alpine National Park, it would first seek advice from animal welfare experts, technical specialists, scientists, and Parks Victoria’s Feral Horse Technical Reference Group. If, on the basis of that advice, Parks Victoria were satisfied that it could undertake aerial shooting operations humanely, safely and effectively, it would:
67.1take steps to determine the procedures that would apply to any aerial shooting operations;
67.2satisfy itself of the lawfulness of the proposed aerial shooting operations;
67.3 seek all relevant authorisations and approvals; and
67.4 move to a procurement process.
An external contractor would then be engaged to provide any aerial shooting services to Parks Victoria, much like the Contractor under the Pests Animals Services Contract.[29]
[29]Exhibit A (CB740).
Prior to 24 August 2022, the plaintiff corresponded with the defendant in connection with any prospect of shooting of horses. In particular, by letter dated 17 August 2022, the plaintiff stated –
Park[s] Victoria’s lethal control methods for management of brumbies contravene section 9(1) of the [Prevention of Cruelty to Animals Act 1986 (Vic)], in that the methods involve the “killing, shooting, catching, [or] trapping” of brumbies otherwise than in accordance with a Code of Practice.[30]
[30]Exhibit 1 (CB661).
In that regard, the plaintiff contended that the ‘lethal control methods’ employed by the defendant could not be carried out ‘in accordance with’ the Code of Practice for the Welfare of Horses (Revision 1) (‘Horse Welfare Code’). The plaintiff said that it was considering seeking ‘urgent relief’ and invited an explanation from the defendant. It also sought that the defendant ‘cease immediately its current shooting program’.[31]
[31]Ibid. Cf., Exhibit 1 (CB667-706).
In response, by letter dated 24 August 2022, the solicitors for the defendant denied any contravention of the Prevention of Cruelty to Animals Act 1986 (Vic) (‘POCTA Act’) and referred to the Horse Welfare Code.[32]
[32]Exhibit 1 (CB663).
In the present proceeding, the plaintiff emphasised that neither the letter from the defendant’s solicitor nor the Horse Action Plan refers specifically to the Code (i.e., the Hunting Welfare Code, as distinct from the Horse Welfare Code [emphases added]).
In any event, by letter emailed later on 24 August 2022, the solicitor for the plaintiff relevantly stated –
We acknowledge receipt of your letter sent by email to Vanessa Bleyer of our office at about 12:50pm today, 24 August 2022.
Our client disagrees with the assertions of fact and law in your letter.
We understand that your client’s shooting activities have commenced and, from your letter, that your client will be continuing with its ground shooting of the brumbies.
Please tell us by 4pm tomorrow, 25 August 2022, the extent, duration and likely timing of your client’s shooting activities, as that information may affect the steps that our client may next take.
In default of a cooperative and substantive response, our client will have no choice but to take urgent action without further correspondence and this letter will be produced to the Court.[33]
[33]Ibid (CB665).
In response, by letter dated 25 August 2022, the solicitors for the defendant stated, relevantly –
We can confirm that our client is continuing to implement the management measures set out in Section 5 of its Protection of the Alpine National Park: Feral Horse Action Plan 2021 (attached), including a groundshooting program. Beyond this, and for reasons of public and contractor safety, our client is not prepared to disclose operational details about that program.[34]
[34]Exhibit 1 (CB666).
In the latter connection, it is apparent that the defendant’s ground shooting program is apt to attract protest action when details become known.
It is common ground that, pursuant to the services contract, the defendant intends to continue the program of ground shooting of horses in the Alpine National Park.[35]
[35]Exhibit 4, 4 [13].
B Statutory and other framework
The Horse Action Plan identifies s 17(2)(a)(i)-(iii) of the National Parks Act as authorising the defendant to carry out the objectives there stated and to cause horses to be shot and killed in the Alpine National Park. Those provisions state that –
(2)Subject to any agreement entered into under section 16A(1), Parks Victoria has the control and management of each national and State park and must –
(a)ensure that each National park and State park is controlled and managed, in accordance with the objects of this Act, in a manner that will –
(i) preserve and protect the park in its natural condition for the use, enjoyment and education of the public;
(ii)preserve and protect indigenous flora and fauna in the park;
(iii)exterminate or control exotic fauna in the park;
…
As I have noted, it is common ground that the horses are ‘exotic fauna’ within the meaning of the National Parks Act.
It is also common ground that the defendant is subject to the provisions of the POCTA Act.
Section 9(1)(a) of the POCTA Act provides that a person who, among other things, ‘wounds … an animal’ or ‘does or omits to do an act with the result that unreasonable pain or suffering is caused, or is likely to be caused, to an animal’ commits an act of cruelty upon that animal and is guilty of an offence.
It is common ground that by causing horses to be shot and killed, the defendant is, in effect, wounding animals.
That said, s 6 of the POCTA Act provides relevantly as follows –
Application of Act
(1) This Act does not apply to –
(a)…
(b)except to the extent that it is necessary to rely upon a Code of Practice as a defence to an offence under this Act, the keeping, treatment, handling, transportation, sale, killing, hunting, shooting, catching, trapping, netting, marking, care, use, husbandry or management of any animal or class of animals (other than a farm animal or class of farm animals) which is carried out in accordance with a Code of Practice;
…
In that connection, s 7 of the POCTA Act provides relevantly that –
(1)The Governor in Council, on the recommendation of the Minister, may make, vary or revoke Codes of Practice –
(a)specifying procedures for the keeping, treatment, handling, transportation, sale, killing, hunting, shooting, catching, trapping, netting, marking, care, use, husbandry or management of any animal or class of animals; or
(b)about the premises, facilities, equipment or conditions at any premises to which licences granted under Part 3 apply; or
(c)the constitution, procedures and processes of animal ethics committees.
(2)A Code of Practice may apply, adopt or incorporate (with or without modification) any matter contained in any document, code, standard, rule, specification or method issued, formulated, prescribed, adopted or published by any authority or body as issued, formulated, prescribed, adopted or published at the time the Code is made or at any time before then.
In that context, senior counsel for the plaintiff identified that it was common ground that –
the Prevention of Cruelty to Animals Act qualifies the duty which Parks Victoria has under the National Parks Act and relevantly, under s 17(2), such that Parks Victoria must comply with the Prevention of Cruelty to Animals Act when exterminating or controlling the horses under s 17(2)(a)(iii) of the National Parks Act.[36]
[36]T8.
It is common ground that the Code was made under s 7 of the POCTA Act.
It follows from the above that –
(a) the defendant has the control and management of the Alpine National Park;
(b) in that connection, the defendant must exterminate or control and manage exotic fauna in the Alpine National Park – in this instance, the horses;
(c) however, wounding an animal – including a horse – is an offence under the POCTA Act unless it can be said to constitute, among other things, hunting, shooting or management of an animal ‘in accordance with a Code of Practice’; and
(d) the Code is such a Code of Practice.
In the context identified, both parties drew attention to features of the Code, which was issued under s 7 of the POCTA Act by notice published in the Government Gazette on 17 March 2005. Consequently, it is desirable to refer to and set out parts of the Code in some detail.
The Preface states –
The Prevention of Cruelty to Animals Act 1986, administered by the Department of Primary Industries [the Department of Jobs, Skills, Industry and Regions], has the purpose of protecting animals, encouraging the considerate treatment of animals and improving the level of community awareness about the prevention of cruelty to animals. It establishes fundamental obligations relating to the care of animals in general terms. Details of obligations are found in codes of practice that are made under the provisions of the Act. These set out minimum standards and recommendations relating to important aspects of the care of animals. They are developed following a process of consultation with stakeholders and the community.
They reflect the views and values held by Victorians with respect to the care and use of animals. It is recommended that all those who care for or use animals become familiar with the relevant codes.
Codes are issued after review by the Animal Welfare Advisory Committee. This committee is comprised of members who have knowledge and expertise in particular areas such as animal welfare, veterinary science, animal uses in research, agriculture, the commercial use of animals and the standards and conduct of ethical use of animals.
This particular code has also been reviewed by the Hunting Advisory Committee. The purpose of the code is to prevent cruelty and encourage the considerate treatment of animals that are hunted or used for hunting.
… [37]
[37]Code (n 24) 531.
Section 1 is entitled ‘Introduction’. The clauses within that section state –
1.1This Code aims to prevent cruelty and encourage the considerate treatment of animals that are hunted or used for hunting.
1.2 This Code recommends membership by recreational hunters of approved hunting organisations.
1.3To protect the welfare of hunted animals, this Code clearly defines the only type of animals that may be used to assist hunters and the acceptable method in which these animals can be used.
1.4This Code does not approve of hunting where one animal is permitted to inflict an injury that causes another animal to suffer.
1.5 In this Code, hunting includes the use of any legal firearm or bow capable of humanely killing the animal hunted.[38]
[38]Ibid 532.
Section 2 is entitled ‘Definitions’. In the present context, much argument centred around the following definition –
Hunting includes the pursuit, trailing, stalking, searching for or driving out of an animal where the deliberate intention is to kill the animals being hunted.[39]
[39]Ibid.
Some of the other definitions were referred to in argument.
Section 3 is entitled ‘Hunter Conduct’. The first group of clauses appear under the sub-heading ‘Minimum Standards’, particularly –
3.1 Hunted animals must at all times be free and unrestricted in the wild.
3.2Firearms and ammunition or bows and arrows must be used that will humanely kill the species being hunted.
3.3 An animal must only be shot at when:
• it can be clearly seen and recognised;
• it is within the effective range of the firearm, ammunition, or bow and arrow and the skills of the hunter; and
• a humane kill is likely.
3.4 Shooting an animal in the wild for the purpose of testing the proficiency of hunters, or hunting equipment, is not permitted.
3.5 A hunter must shoot to cause a quick and painless death.
3.6Every animal which is shot must be immediately examined to ensure that it is dead. Every animal which isn’t dead on retrieval must be humanely destroyed immediately.
3.7 If an animal is wounded and escapes, all reasonable attempts must be made to locate it so it can be killed quickly and humanely before hunting another animal.
3.8 Hunters must be aware of and observe all regulations and legislation that relates to hunting and the use of firearms.
3.9 The hunting of game birds released from captivity must only occur at establishments licensed under the Wildlife Act 1975 for hunting of game birds.[40]
[40]Code (n 24) 533.
Thereafter, further clauses appear within section 3 under the sub-headings ‘Recommended best practice’ and ‘Guideline’.
Section 4 is entitled ‘Use of dogs in hunting’. That section adopts the same division of sub-headings. Section 5 entitled ‘General provisions’ is similar.
For completeness, I should note that an aspect of the argument touched upon provisions of the Firearms Act 1996 (Vic) (‘Firearms Act’), particularly those relating to its purpose, the definition of ‘pest animal’ and the system of licensing.[41]
[41]In that connection, the plaintiff also referred to certain provisions of the Catchment and Land Protection Act 1994 (Vic) (‘Catchment and Land Protection Act’) and the Wildlife Act1975 (Vic) (‘Wildlife Act’).
C The proceeding
The plaintiff commenced the proceeding by Writ and Statement of Claim filed on 1 September 2022.[42]
[42]CB6-16.
Many of the plaintiff’s allegations are admitted, or essentially admitted. Among other things, the defendant admits that it cannot authorise its officers to contravene s 9(1)(a) of the POCTA Act. That said, the defendant contends that[43] –
[43]CB24.
(a) the Horse Welfare Code does not apply to the ground shooting of horses in the Alpine National Park;
(b) the Code applies to that ground shooting;
(c) ground shooting in the Alpine National Park has been and will be carried out in accordance with the Code; and
(d) accordingly, by operation of s 6(1)(b), the POCTA Act does not apply to that ground shooting.
In reply, the plaintiff contends that[44] –
[44]CB26-29.
(a) the defendant intends to undertake aerial shooting of horses in the Alpine National Park;
(b) such action is not capable of being carried out ‘in accordance with’ any Code of Practice made under the POCTA Act;
(c) the Code does not apply to the program of ground shooting in the Alpine National Park; and
(d) further or alternatively, the program being carried out by the defendant under the services contract is not and will not be carried out ‘in accordance with’ the Code.
In light of the above, the parties identified three issues for determination,[45] namely –
[45]T10-14, T21 and T43.
(a) whether the Code can apply to the program of ground shooting of horses in the Alpine National Park;
(b) if the Code is applicable –
(vi) whether the ground shooting of horses by the defendant has been carried out ‘in accordance with’ the Code; and
(vii) whether aerial shooting of horses by the defendant can be carried out ‘in accordance with’ the Code.
In argument, the first issue was identified as the ‘primary’ or ‘key’ issue, with the other issues arising only if it is determined that the Code can apply.[46]
[46]T10 and T44.
In connection with the above, subject to some redactions and deletions, the plaintiff tendered –
(a) the affidavit of Jill Elizabeth Margaret Pickering affirmed 1 September 2022 together with various exhibits;[47]
[47]Exhibit 1.
(b) the affidavit of Vanessa Elizabeth Bleyer affirmed 19 October 2022 together with its exhibit;[48]
(c) further affidavit of Vanessa Elizabeth Bleyer affirmed 15 November 2022 together with its exhibit;[49] and
(d) a statement of agreed facts made between the parties and dated 15 November 2022.[50]
[48]Exhibit 2.
[49]Exhibit 3.
[50]Exhibit 4.
For its part, the defendant tendered an affidavit of Mr Pegler affirmed 26 October 2022 together with its exhibit.[51]
[51]Exhibit A.
The only oral evidence was given by Mr Pegler, who was required for cross-examination. Among other things, Mr Pegler gave oral evidence that –
(a) the presence of horses in the Alpine National Park is a significant problem which Parks Victoria believes needs to be dealt with urgently;[52]
[52]T63.
(b) Parks Victoria intends to implement the Horse Action Plan;[53]
[53]Ibid.
(c) Parks Victoria intends to remove the entirety of the small isolated population of horses on the Bogong High Plains (which is within the Alpine National Park) – at least some of which will be removed by shooting;[54]
[54]T64-65.
(d) trapping and rehoming of horses has been pretty unsuccessful;[55]
[55]T65.
(e) there are standard operating procedures for both ground shooting and aerial shooting of horses;[56]
[56]T67.
(f) the omission of any reference to the Code in the Horse Action Plan was an ‘oversight on my part’;[57]
[57]T68. That said, however, I note that at one point the Horse Action Plan refers to the existence of ‘various codes of practice’: Exhibit A (CB993).
(g) two years ago, a survey identified there to be around 5000 horses in the Eastern Alps region of the Alpine National Park;[58]
[58]T69.
(h) the Bogong High Plains and Eastern Alps regions are ‘the areas of concern’;[59]
[59]T70.
(i) Parks Victoria is of the view that thousands of horses need to be removed from the Alpine National Park;[60]
[60]T72.
(j) most of that removal is going to be by shooting and killing the horses;[61]
[61]T72.
(k) in the ground shooting operation, the general practice is that dead horses are left where they are shot with the exception of carcasses in public roads and waterways;[62]
[62]T72-73.
(l) aerial shooting is a technique canvassed in the Horse Action Plan and, in that context, he was ‘reasonably familiar’ with the relevant standard operating procedure;[63]
[63]T75-79. Cf, Exhibit 3 (CB717-723).
(m) one of the advantages of aerial shooting is that it can be effective in areas in which ‘people can’t get to except by air’ – particularly, remote, inaccessible or rugged terrain;[64]
[64]T76-77.
(n) there are advantages and disadvantages in both ground shooting and aerial shooting operations;[65]
[65]T78.
(o) Parks Victoria has substantial experience with aerial shooting of animals in national parks – particularly deer – and has regarded that method as ‘very effective and successful’;[66]
[66]T79.
(p) that said, to date, Parks Victoria has avoided the aerial shooting of horses more because of –
the community view of, ah, the humaneness of aerial shooting, and a perception that it can’t be done humanely.[67]
[67]T90.
(q) if there are exceptional circumstances or if other methods fail to remove sufficient horses to reduce ecological impacts, Parks Victoria may undertake aerial shooting of horses in the Alpine National Park;[68]
[68]T80.
(r) aerial shooting in the Alpine National Park was not currently ‘on the cards’ and there had been no further planning for aerial shooting since the Horse Action Plan;[69]
[69]T80-81.
(s) the ‘threshold’ for aerial shooting in the Alpine National Park[70] had not yet been reached – although he could not say precisely what that threshold is;[71]
[70]T81.
[71]T70-71 and T90.
(t) in that connection, the ‘rate of removal’ in the course of the ground shooting operations had been ‘sufficient’[72] – although, as I have noted, he did not know precisely how many horses had been removed;[73]
[72]T82.
[73]T91.
(u) in any event, a very small percentage of the total population of horses had so far been removed and numbers need to be reduced ‘very significantly’;[74]
(v) he was not involved in giving instructions in connection with the solicitor’s letter dated 24 August 2022, although he conceded that the letter was ‘consistent’ with his understanding that the Horse Action Plan did not rely upon the Code;[75] and
(w) the Code is, however, referred to in the services contract.[76]
[74]Ibid.
[75]T86.
[76]T87-88.
Both parties filed and served detailed and helpful written submissions. Those submissions were referred to and given focus in the opening and closing addresses of respective senior counsel. These reasons tend to trace the pattern of argument that unfolded orally, although the underlying written submissions have been given careful consideration.
D Issue 1: the meaning of ‘hunting’ in the Code
In argument, both parties framed this issue as one of construction.[77] That said, in opening, senior counsel for the plaintiff explained that –
The first legal issue concerns the proper construction of the Hunting Welfare Code, and the issue, essentially, is whether or not the Hunting Welfare Code covers Parks Victoria’s conduct on the proper characterisation of its conduct in shooting and killing the horses that has been undertaken. The plaintiff’s primary case is that on the facts, it is not ‘hunting’, as that term is used in the Hunting Welfare Code.[78]
[77]T10 and T44.
[78]T10. See also, plaintiff’s outline of submissions dated 15 November 2022, [11].
In the context described, senior counsel for the plaintiff identified the ‘crux’ of the issue as the meaning of ‘hunting’ in the Code,[79] and, in that connection, referred to the principles directed to the interpretation of statutes – particularly, a consideration of ‘text, context and purpose’.[80]
[79]T110.
[80]T110. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21, 35-6 [15]. See also, R v A2 (2019) 269 CLR 507, 520-22 [32]-[37], 545 [124].
That said, of course, the Code is not a statute, although as I have noted, it was issued pursuant to statute. Consequently, senior counsel also referred to the interpretation of subordinate instruments. He noted that when a document is ‘intended to give practical guidance to persons on the ground’ it should be construed accordingly.[81]
[81]T111-112. In that connection, senior counsel referred to Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSC 345, [28]-[34]. See also, Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180, 183 (regulations concerning scaffolding ‘ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament’), Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316, 328 [37], Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, [96]-[100] and Westfield Management Ltd v Perpetual Trustee Company Limited & Anor [2006] NSWCA 245, [36] (consents and conditions stated in consents ‘are to be construed, not as documents drafted with legal expertise, but to achieve practical results’).
Notwithstanding the above, senior counsel described the Code as a ‘legislative instrument which disapplies criminal law’ and submitted that there ‘is perhaps some tension’ about whether to give it a strict or more flexible interpretation.[82]
[82]T111.
In the setting described, senior counsel for the plaintiff emphasised four overlapping submissions concerning the Code, particularly that[83] –
[83]T111-113.
(a) by its nature the Code is intended to give ‘practical guidance to persons on the ground’;
(b) the definition of ‘hunting’ in the Code is not exhaustive;
(c) other parts of the Code refer to ‘hunting’ and, accordingly, there is a ‘lack of precision’ in the use of the concept; and
(d) regard should be had to the entirety of the Code.
From that point, senior counsel embarked upon a consideration of various textual, contextual and other features, particularly[84] –
[84]T113-136.
(a) certain provisions of the POCTA Act;
(b) the purpose of the Code – which senior counsel described as ‘contestable’;[85]
[85]T114.
(c) the definition of ‘hunting’ in the Code (extracted at [43] above) – which he identified as not exhaustive and to some extent circular;[86]
[86]T116.
(d) other features and clauses of the Code, which he described as ‘indicators’ of the meaning of ‘hunting’ and apt to ‘shed more light on what is and is not hunting’[87] – particularly, the Preface, clauses 1.1, 1.2 and 1.5, the definition of ‘the Wild’, Part 3 entitled ‘Hunter conduct’ and clauses 3.1, 3.4 and 3.6;
[87]T117.
(e) in that connection, submissions to the effect that –
(viii) ‘there needs to be a valid basis in law for shooting and killing an animal’;[88]
[88]T115.
(ix) ‘[k]illing an animal just because it is a pest species causing problems in the environment doesn’t make it hunting. It has to be hunting because it falls within the definition of hunting’;[89]
[89]Ibid.
(x) the Code refers to ‘recreational hunters’, but does not refer to ‘professional hunters’;[90]
[90]T115.
(xi) ‘not any killing of an animal is hunting’, and the Code does not expressly say that ‘extermination, management or control of an animal is hunting’;[91]
[91]T117.
(xii) ‘it is implicit or it is assumed in [the Code], that there is retrieval in hunting’; [92]
[92]T120-121.
(xiii) the Code is ‘to apply to individuals’, which ‘says something about how inapt this is to this current situation’ in which, it was said, a statutory agency was ‘wanting to systematically undertake extermination of entire populations or substantial removals of populations of animals’;[93]
[93]T123.
(f) the ordinary dictionary meaning of ‘hunting’, as well as what was described as the ‘deep historical roots’ associated with the concept of ‘hunting’ as opposed to, for example, ‘pest control’;[94]
[94]T123. In this connection, senior counsel referred to Singh v Lynch (2020) 103 NSWLR 568, 592-99 [102]-[131], Greater Shepparton City Council v Clarke (2017) 56 VR 229, 250 [74] and Will v Brighton (2020) 104 NSWLR 170, 189 [94], 194 [122].
(g) in that connection, the failures of the defendant to refer to the Code in the Horse Action Plan and in the solicitor’s letter dated 24 August 2022 were no mistake ‘because what is occurring is not “hunting”’;[95] and
[95]T94. Cf., T125.
(h) certain provisions of the Firearms Act and associated legislation, and the ‘old’ authorisations issued in the present instance, in connection with which senior counsel submitted –
a [firearms] licence issued for hunting could not be issued validly for shooting of animals that are not “pest animals” as defined in the Firearms Act, or “game” as defined in the Wildlife Act. And it’s accepted [by the defendant] that the horses are not “game” under the Wildlife Act or “pest animals” under the Firearms Act.
…
We say that this [the ‘interrelated scheme’, including the Firearms Act and associated legislation] assists in understanding what is “hunting”, under the Hunting Welfare Code, and it would not permit reliance on the Hunting Welfare Code for shooting of horses which are not pest species any way under the Firearms Act or the Catchment Act, and they are not “game” under the Wildlife Act.[96]
[96]T133-134.
Ultimately, senior counsel for the plaintiff submitted –
[if] you match what we say is “hunting” against the evidence and factual findings … we say there’s a mismatch and it’s just not “hunting”.[97]
[97]T136.
Senior counsel for the defendant did not take issue with, and might be said to have embraced, the interpretative approach advanced by senior counsel for the plaintiff. In particular, senior counsel for the defendant referred to principles of statutory construction, including the consideration of ‘text, context and purpose’, as well as the need for the Code to be ‘understood and complied with by its audience, namely hunters on the ground’.[98]
[98]T170 and T172. See also, T174, T188 and T194.
Specifically in respect of the Code, senior counsel characterised the plaintiff’s argument as amounting to a contention that –
the Code is subject to an implied limitation, namely that the Code does not cover shooting and killing carried out for the purpose of pest control.[99]
[99]T157.
Senior counsel relevantly submitted that –
(a) ‘hunting’ is defined in the Code, and that definition contains two elements – carrying out a particular activity; with the intention of killing an animal;[100]
[100]T158-159.
(b) structurally, the Code also contains clauses directed to ‘minimum standards’, ‘best practice’ and ‘guidelines’;[101]
[101]T158.
(c) the stated ‘minimum standards’ do not go to the anterior question of whether a person is ‘hunting’; ‘they go to whether the hunter is engaged in an activity that is, or is not, authorised by the Code’; [102]
[102]T161-162.
(d) the Code does not state expressly when the shooting and killing of an animal will be carried out in accordance with the Code; [103]
[103]T158.
(e) in that connection, the definition of hunting refers to the intention of the person, but the Code does not mention any other purpose ‘whether permitted or otherwise’; thus, it was submitted –
So long as the person complies with the minimum standards, a hunter may permissibly engage in hunting for food, for profit, for sport or for pest control.[104]
(f) in the circumstances, a person will comply with the Code if the person is ‘hunting’ and complies with the stated minimum standards; and
(g) in that regard, it was submitted that ‘the shooting and killing of feral horses in the Alpine National Park met both of those conditions’.[105]
[104]T162.
[105]T158.
Senior counsel for the defendant thereafter addressed various further aspects of the plaintiff’s submissions, particularly –
(a) the purpose of and various clauses and other features of the Code as well as aspects of the POCTA Act;[106]
[106]T163-172.
(b) whether the Court could look to the ordinary English meaning of ‘hunting’ – and whether that is likely to be productive even if it could;[107]
[107]T172-180. In this connection, senior counsel referred particularly to BWP Management Ltd v Ipswich City Council (2020) 4 QR 353, 363-367 [42]-[51].
(c) whether, in Australia, there is any sensible or practical distinction between ‘hunting’ and ‘pest control’;[108]
(d) the contentions concerning the Firearms Act and associated legislation; which senior counsel for the defendant described as a ‘different implied limitation’ that could not withstand consideration of the relevant statutory provisions and, in any event, could not be resolved ‘on a constructional question’;[109] and
(e) in respect of the Horse Action Plan, the solicitor’s letter of 24 August 2022 and the relevant evidence of Mr Pegler, it was said that the application of the Code depends on its proper construction, not ‘what an individual or organisation might have said’ and, in any event, the services contract – which refers to the Code – precedes the correspondence.[110]
[108]T180-183.
[109]T183-192.
[110]T192-193.
Ultimately, senior counsel submitted –
Contrary to what our learned friend said this morning, this is not a matter of competing constructions. We say the suggested limitation or limitations are not supported by the text, context or purpose, so that means that you’re not actually confronted by a – or offered a constructional choice, as it was put by our friend.
We say that the construction that’s open and that needs to be adopted is that the defined term “hunting” in the Hunting Welfare Code is not subject to the implied limitations urged by the plaintiff, and as a consequence the court should conclude that the Code is capable of applying to the shooting and killing of feral horses in the Alpine National Park.[111]
[111]T194.
Senior counsel for the plaintiff advanced several discrete points in reply, including taking issue with the contention that his argument involved the implication of any limitation and also addressing an aspect of the argument concerning the Firearms Act.[112]
[112]T216-220.
As I have indicated, there was ultimately no real difference between the parties in respect of the proper approach to the construction of the Code.
In that context, the central issue is whether the defendant’s program of shooting was or could be said to have been ‘hunting’ within the meaning of the Code.
In that regard, albeit that both parties framed the issue as one of construction, the plaintiff, in particular, sought in various ways to characterise the underlying program as ‘pest control’ as opposed to ‘hunting’ and then to contrast that with and seek to link it back to a ‘proper’ construction of ‘hunting’ within the meaning of the Code.
In my view, the central considerations must be the text and evident purpose of the Code. After all, as both parties emphasised, it is a practical document intended to be understood and applied by those to whom it is addressed, namely those contemplating or engaged in hunting.
In that connection, the Preface to the Code identifies that such codes are ‘developed following a process of consultation with stakeholders and the community’ and issued after review by the ‘Animal Welfare Advisory Committee’. Indeed, the Code is there identified as having been reviewed by the ‘Hunting Advisory Committee’.[113] It follows that albeit that the Code has some features that are legalistic, its form and content has plainly been influenced by a process of extensive consultation involving non-lawyers.
[113]Code (n 24) 531.
Further, the process to which the Code speaks is hardly surprising: the hunting of animals for sport and other reasons has long been controversial in the community; and a significant part of that controversy is derived from the potential for hunting practices to be cruel to animals. Such considerations must have a potential to arise in any kind of hunting in which an animal may be wounded or killed.
In addition, the Code is, in effect, a defence to a widely stated offence in the POCTA Act that, as the defendant’s concession tends to demonstrate, is otherwise likely to be breached in the course of any hunting activity. It follows that it is desirable that the Code be interpreted in a manner that adheres relatively directly to its terms and evident purpose; particularly as both parties acknowledge that the Code falls to be read and considered by hunters who would otherwise be committing the offence to which I have referred.
In light of the above, in my view, little weight should be given to the aspects of the plaintiff’s argument that are directed to contextual ‘indicators’ that stray some distance beyond the terms and evident purpose of the Code, particularly –
(a) the fact that the Code is not referred to in the Horse Action Plan or in the solicitor’s letter of 24 August 2022;
(b) the dictionary meanings of ‘hunting’ and the asserted historical distinction between ‘hunting’ and ‘pest control’; and
(c) the scheme of provisions in the Firearms Act and associated legislation, and licences held by the present (unidentified) shooters.
In that connection, I accept the evidence of Mr Pegler to the effect that the failure to refer specifically to the Code in the Horse Action Plan was an oversight. That oversight may also have indirectly affected the form of the solicitor’s letter.
In respect of the latter, it seems to me to be of significance that, as emphasised by the defendant, the services contract pre-dates the letter and indirectly refers to the Code. That tends to support the evidence given by Mr Pegler that the failure to refer to the Code in the Horse Action Plan was an oversight.
In any event, as senior counsel for the defendant submitted, the proper construction of the terms of the Code should not be significantly displaced or affected by ‘what an individual or organisation might have said’[114] (or not said).
[114]T193.
As to the dictionary and asserted historical meanings of ‘hunting’, that endeavour provoked a very considerable degree of forensic sabre rattling about whether, in the course of statutory construction, such dictionary or ‘historical’ meanings could be taken into account in respect of the construction of a term that is defined in a subject statute.
As I have noted, the Code is not a statute, and, in any event, I do not consider it necessary to resolve the question of principle about which there was much argument. I accept the submission of senior counsel for the defendant that the various material advanced by both sides tended to demonstrate a contestable range of dictionary meanings and no settled ‘historical’ position in Australia.
Further, whilst it might be accepted that there are dictionary meanings of ‘hunting’ and some degree of historical understanding of what at least some hunting practices might involve, little weight should be given to such matters when considering the interpretation of a practical document that primarily falls for consideration in the hands of contemporary hunters and therefore on its own terms.
It follows that whatever might be said about the debate concerning the use of dictionary definitions and the like, the present arguments seem to me to be too contestable to bear in any significant way upon a proper construction of the Code. Indeed, such arguments can and do tend to divert attention away from the terms and evident purpose of the Code that, for reasons which I have sought to explain, must be more centrally relevant in any proper construction of it.
In my view, similar considerations apply in respect of the arguments advanced concerning the Firearms Act and associated provisions.
As senior counsel for the defendant highlighted, that argument did not emerge from the pleadings or from the primary exchange of written submissions. The point was first developed in reply submissions filed and served two days prior to the hearing.[115] The plaintiff sought to connect the point with one that had been made in the defendant’s written submissions;[116] however, it was really a new point.
[115]Plaintiff’s submissions in reply on Firearms Act 1996 dated 30 November 2022.
[116]Outline of submissions of Parks Victoria dated 22 November 2022, [35.5]-[35.6].
In that regard, the plaintiff contended that –
As a matter of construction of the Hunting Welfare Code, the fact that the regime regulating hunting in Victoria does not permit the shooting of brumbies makes it highly unlikely that the Hunting Welfare Code is intended to apply to that activity. … Things which are not treated as “hunting” under the Firearms Act are therefore inherently unlikely to be “hunting” under the Hunting Welfare Code.[117]
[117]Plaintiff’s submissions in reply on Firearms Act 1996 dated 30 November 2022, [15].
Although the argument was advanced as going to a question of construction, it was propelled by assertions concerning the form of the firearm licences held by the eight shooters apparently involved in the defendant’s ground shooting program. In that regard, attention was directed to documents that suggested that most (but not all) of those shooters held ‘longarm licences categories A and B’.[118] The plaintiff developed submissions to the effect that such licences – which are issued by the Chief Commissioner of Police – could not authorise shooters to shoot the horses.
[118]It was acknowledged that one shooter held a longarm licence in categories A, B and C and another held a longarm licence in categories A, B, C and D: see, Plaintiff’s submissions in reply on Firearms Act 1996 dated 30 November 2022, [5].
In that sense, significant aspects of the argument went close to a contention that either the Chief Commissioner had erred in issuing the licences or that unidentified shooters may have been in breach of their licences in circumstances where –
(a) the point had been raised late;
(b) the documents concerned were not the actual licences, but were authorisations issued under s 37(1) of the National Parks Act that contained checked boxes alongside the words ‘firearm category’;[119]
(c) no other evidence shed light on the circumstances in which those documents had been either completed or issued; and
(d) neither the Chief Commissioner nor any of the unidentified shooters were a party to or witness in the proceeding.
[119]See, Exhibit A (CB1116-1148).
Although the argument was advanced in a manner of the highest quality, it may be seen that there is considerable potential for error and/or unfairness in any conclusions sought to be drawn by reference to the circumstances to which I have referred. That is particularly so where, as I have indicated, the argument was directed to some but not all of the licences concerned and, as senior counsel for the defendant explained, long arm licences in categories C or D could be granted for ‘professional hunting’.[120]
[120]Cf., Firearms Act 1996 (Vic), ss 11(1)(a)(ii), 11(2)(b), 12(1)(a)(i), 12(2)(a).
While the plaintiff sought to suggest that the ambit of long arm licences in categories C or D should be limited in the manner suggested to apply to licences in categories A and B,[121] the submissions advanced on behalf of the defendant explained why that should not be so by reference to differences in the relevant statutory language and, in my view, that analysis should be accepted.[122]
[121]See, in particular, Plaintiff’s submissions in reply on Firearms Act 1996, [13].
[122]T189-192.
It follows that whatever might be the true position concerning the licences held by the eight unidentified shooters, I could not accept the central propositions advanced by the plaintiff to the effect that the Firearms Act and associated provisions cannot permit the shooting of horses and make it ‘highly unlikely’ that the Code was intended to apply to that activity.
Having addressed the plaintiff’s submissions concerning matters of broader context, focus should fall more directly upon the terms and evident purpose of the Code.
The title of the Code identifies that it is directed to ‘the Welfare of Animals in Hunting’ [emphasis added].
The Preface refers to the POCTA Act, and identifies its relevant purpose as follows –
protecting animals, encouraging the considerate treatment of animals and improving the level of community awareness about the prevention of cruelty to animals.
Thereafter, in the Preface and also immediately thereafter in clause 1.1 of the Introduction, the Code identifies its specific purpose or objective as follows –
to prevent cruelty and encourage the considerate treatment of animals that are hunted or used for hunting.
[emphases added]
The terms ‘hunted’, ‘hunter’ and ‘hunting’ appear in other introductory clauses, and, among other things, the Definitions identify the ‘Legislation relating to hunting’.
It will thus be evident that, from the outset, the Code is directed to ‘hunting’ and, unsurprisingly, the term is defined.
I have earlier extracted that definition, however it is convenient here to repeat it –
Hunting includes the pursuit, trailing, stalking, searching for or driving out of an animal where the deliberate intention is to kill the animals being hunted.
The defendant submits, and I accept, that the definition specifies two elements for its operation, namely the carrying out of particular activity (pursuit, trailing, stalking, searching for or driving out of an animal) and an accompanying ‘deliberate intention’ to kill.
I also accept that -
(a) in its form the definition is non-specific as to the kinds of hunting activity in which the specified elements might be present – whether professional, recreational or other; and
(b) such a form is consistent with the generally stated purpose of the Code – in that it thereby operates to treat all hunted animals equally, regardless of the kind of hunting activity concerned.
It follows from the above, in my view, that there is no real significance in the fact – emphasised by the plaintiff in argument – that the Code does not specifically address hunting for ‘extermination’ or ‘pest control’. I accept that the style of the definition of ‘hunting’ is of a different kind.
That said, of course, the plaintiff’s various submissions were sought to be propelled via a submission that the definition of ‘hunting’ is ‘not exhaustive’ and in a respect circular.[123] In my view, neither feature deprives the stated definition of ‘hunting’ of its relatively straightforward meaning and function.
[123]T116-117.
In that regard, most and perhaps all kinds of ‘hunting’ seem to me, in one way or another, to embrace the elements in the stated definition, namely pursuit, trailing, stalking, searching for or driving out of an animal with an accompanying intention to kill. No kinds or instances of ‘hunting’ were identified in argument that would not satisfy those elements.
Nor was it said that the present program of ground shooting does not satisfy such elements. On the evidence, the program involves professional shooters searching for and deliberately killing horses using, among other things, firearms, thermal cameras, tracking equipment and GPS. In my view, that program plainly satisfies the elements stated in the definition and so is ‘hunting’ for the purposes of the Code.
In the circumstances, I cannot accept that the concept of ‘inclusivity’ should operate to exclude from the embrace of the definition activities that seem so plainly to satisfy the elements stated within it.
Further, I do not consider there to be any significant circularity in the definition as a consequence of the fact that it ends with the words ‘being hunted’. It seems to me that when the definition speaks of ‘being hunted’, it speaks of an activity satisfying the elements earlier stated.
Nor do I consider the use of words such as ‘hunting’, ‘hunted’ and ‘hunter’ earlier and later in the Code to introduce any ‘lack of precision’. Ordinarily, a definition operates to give meaning to terms appearing throughout a document and the present instance seems to me to be no exception. In my view, the stated definition operates perfectly satisfactorily in that manner and it follows that the use of the words ‘hunting’, ‘hunted’ and ‘hunter’ earlier and later in the Code should be read as linking to the defined meaning rather than operating, in some way, to displace it.
As to the other ‘indicators’ emphasised by the plaintiff in argument –
(a) I do not consider the purpose of the Code to be relevantly ‘contestable’ – the purpose of the Code is specifically stated and the interpretation of the definition of ‘hunting’ to which I have referred is consistent with it;
(b) the fact that clause 1.2 contains a recommendation concerning ‘recreational hunters’ does not mean that the Code is restricted to ‘recreational hunters’ – that is not what the Code says, and it is perfectly understandable that the Code would recommend that hunters of that particular kind be members of an approved hunting organisation;
(c) I do not accept that the clauses of the Code specify any ‘quantitative concerns’ in the sense of the number of animals hunted or, relevantly, the manner in which they might be hunted. No such ‘quantitative concerns’ are specifically stated and the Code refers repeatedly to the killing of animals by shooting – which is what the present program involves;
(d) the definition and references to ‘the Wild’ have no present relevance – the current program plainly involves ‘hunting’ in ‘the Wild’, each as defined;
(e) after the Preface, Introduction and Definitions, the Code addresses certain instances of conduct in connection with which it specifies ‘minimum standards’, ‘recommended best practice’ and, in two instances, states a ‘guideline’. Structurally, such a style involves the statement of standards, best practices and guidelines in respect of the conduct respectively identified, and, in my view, does not stand to displace the stated definition of ‘hunting’.[124] As I have indicated, the stated definition simply gives meaning to the word or concept where earlier and later appearing, including in respect of the stated ‘minimum standards’ and the like;
[124]Cf., Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69]-[71].
(f) it follows that I do not accept that the purpose and function of the various clauses directed to ‘minimum standards’, ‘recommended best practice’ and ‘guidelines’ are to identify what is not hunting – such standards and the like apply to particular instances of ‘hunting’;
(g) in that context, I do not consider the application of the Code to individuals – said to derive from the title to part 3 of the Code – to be of any present significance. In that regard, the present program involves hunting by nominated (unidentified) individuals operating under direction and, by contract, the Code is specified to apply to that hunting;
(h) in any event, I doubt that the Code applies only to ‘individuals’ in the sense of ‘natural persons’, as that is not specifically said, and s 9(1) of the POCTA Act contemplates the potential for an offence by a ‘natural person’ and/or ‘body corporate’, and the Code is, in effect, a defence to that offence;
(i) the fact that clause 3.4 (which appears among the ‘minimum standards’ pertaining to ‘hunter conduct’) addresses a particular instance of impermissible hunter conduct (shooting an animal in the wild for the purpose of testing the proficiency of the hunter or equipment) does not, either expressly or structurally, displace the earlier defined meaning of ‘hunting’, or the specifically stated purpose of the Code;
(j) that is, a hunter engaging in such conduct will be in breach of the Code – as such conduct is ‘not permitted’ – but, it does not follow that engaging in such conduct would mean that the person was not ‘hunting’ when doing so. In that regard, clause 3.4 specifically identifies such a person as a ‘hunter’ or as testing ‘hunting equipment’;
(k) similarly, clause 3.6 addresses the need for immediate examination to ensure that an animal which is shot is dead. Clause 3.6 does not specify how such examination is to occur and does not specifically require that all such animals be ‘retrieved’. It is not difficult to imagine circumstances in ‘the Wild’ in which such animals could not be retrieved owing to rugged and inaccessible terrain;
(l) further, ‘on retrieval’ is perhaps one circumstance in which ‘immediate examination’ might take place, but not the only method in which such examination might practically be undertaken (for example, via binoculars, ‘thermal cameras’ or other such equipment);
(m) in addition, I accept the submission of the defendant that clause 3.6 is given further and sensible meaning by clause 4.3 that contemplates retrieval by dogs;
(n) in that regard, the fact that the Code refers to standards and practices relating to ‘hunting’ involving dogs does not mean that all ‘hunting’ must involve dogs – any more than the fact that the Code refers, for example, to standards and practices relating to ‘hunting deer’ (clause 5.1), the use of ferrets (clause 5.5), ‘duck hunting’ (clause 5.6), ‘fox hunting’ (clause 5.7) and ‘rabbit hunting’ (clause 5.8) means that all ‘hunting’ involves deer, ferrets, ducks, foxes and/or rabbits; and
(o) in my view, the more natural and sensible reading of the Code – consistently with the stated definition of ‘hunting’ and the Code’s overall structure – is simply that ‘hunting’ involving dogs is a particular kind of hunting to which specific standards and practices are directed.
For completeness, I note that part of the plaintiff’s argument was directed to terms appearing within the provisions of the POCTA Act, particularly ss 6(1)(b) and 7(1)(a). In that regard, the plaintiff emphasised that the words ‘killing, hunting and shooting are different things’ and drew attention to the word ‘management’. In that regard, the plaintiff submitted –
The inclusion of the concept of “management” in ss 6 and 7, and the omission of that word altogether from the Hunting Welfare Code, supports the construction advanced, as it suggests that the breadth of the term “hunting” as used in the Hunting Welfare Code is not intended to overlap with the word “management”. In turn, that reinforces the argument about the existence of purposive elements as a component of the term “hunting”; “hunting” is not done for the “management” of an animal.[125]
[125]Plaintiff’s outline of submissions dated 15 November 2022, [67].
Such an argument is, of course, directed more to underlying context than the stated text and purpose of the Code. Accordingly, it is doubtful that it can bear in any significant way upon a proper construction of the Code in the hands of those to whom it is addressed.
In any event, there can be no doubt that the present program involves ‘hunting’ as defined in the Code; or that such ‘hunting’ is effected by ‘shooting’ which has the consequence of horses being ‘killed’. Those or related terms appear in the identified provisions of the POCTA Act (where they are undefined) as well as the Code (where ‘hunting’ is defined).
It follows, in my view, that it is unnecessary to form any settled view about the term ‘management’ as opposed to ‘killing’, ‘hunting’, ‘shooting’ and any of the other terms appearing in the identified provisions of the POCTA Act. The term ‘management’ does not appear in the Code, and the present program is amply embraced by other terms that appear in both the POCTA Act and the Code.
It follows from the above that I do not accept that the various ‘indicators’ identified in argument by the plaintiff ‘shed more light on what is and is not hunting’ than the definition.[126] In circumstances in which the Code specifically identifies the applicable purpose and the definition of ‘hunting’ and should be considered in a practical way, such an approach would be apt to introduce uncertainty of an undesirable kind into any consideration of the meaning and ambit of the Code.
[126]T117.
In summary –
(a) the Code defines ‘hunting’ and that definition states, inclusively, the elements comprising ‘hunting’ within the Code;
(b) the other ‘indicators’ and features to which the plaintiff referred in argument do not relevantly qualify or displace the specifically defined and applicable meaning of ‘hunting’ within the Code; and
(c) on the evidence, the defendant’s program of ground shooting of horses in the Alpine National Park involves ‘hunting’ within the meaning of the Code.
In light of the above, issue 1 must be resolved in favour of the defendant.
EIssue 2: whether the ground shooting program was ‘in accordance with’ the Code
As I have earlier noted, the second issue arises if, as I have found, the Code applies to the present program of ground shooting. In that regard, in substance, the plaintiff contends that prior to 24 October 2022, the program of ground shooting was not ‘carried out in accordance with’ the Code as required by s 6(1)(b) of the POCTA Act. That contention is directed to the form of the ‘old’ authorisations issued under s 37(1) of the National Parks Act to the eight unidentified professional shooters.[127]
[127]Exhibit A (CB1116-1130).
[157]Ibid (CB739, [62]).
In regard to the above –
(a) it seems unlikely that most if not all of the ‘old’ authorisations were issued specifically in contemplation of the program for the ground shooting of horses and other animals in the Alpine National Park implemented pursuant and subsequent to the services contract dated 29 July 2022;
(b) that said, the potential for the shooting of horses in the Alpine National Park has been in general contemplation by Parks Victoria for years, and specifically since March 2020;
(c) however, since February 2020, Parks Victoria has been undertaking continuing programs in the Alpine National Park involving aerial shooting of deer, feral pigs, feral goats and foxes; and
(d) it seems likely that many if not all of the eight unidentified professional shooters and, indeed, other professional shooters, have been involved in those programs.
In my view, those matters serve to explain both the features of the ‘old’ authorisations to which I have earlier referred, as well as some other aspects of the text of those documents.
In particular, the ‘old’ authorisations are each relevantly in the same form and are specified to operate for a period of about three years after issue.
Further, they each refer non-specifically to –
(a) any particular National Park (indeed, reference is to ‘all parks’);
(b) the ‘contract’ under which the person authorised might be engaged;
(c) the ‘operations’ or ‘program’ in connection with which it might become necessary to be authorised to use, carry or possess a firearm; and
(d) the person or persons at Parks Victoria who might be directing the authorised person in such ‘operations’ or ‘program’.
It follows, in my view, that while the eight ‘old’ authorisations were very likely not issued in specific contemplation of the present ground shooting program, they (and probably all other such authorisations) were likely issued in a general form that was intended to authorise the holder to use, carry or possess a firearm over a roughly three year period if so directed in connection with any particular Parks Victoria ‘operations’ or an ‘approved … program’ in a National Park.
In that sense, it is most likely that the references to ‘pest animal and wildlife control operations’ and ‘an approved Parks Victoria pest animal control or wildlife management program’ were objectively understood in an equally generalised and non-specific or non-technical way. Consistently with the other text, those expressions were no more than generalised descriptors to be understood in any specific way by reference to future events occurring within the period of authorisation.
In context, it seems to me that the later introduction of a ground shooting program in respect of horses, as well as other animals considered by Parks Victoria to be adversely impacting the ecology of the Alpine National Park, can fall within those generalised descriptors.
In that connection, I am conscious that senior counsel for the plaintiff submitted that the other animals the subject of the services contract were, one way or another, ‘pest animals’ within the meaning of the Catchment and Land Protection Act.[158] That may also have been the case in respect of the animals the subject of the aerial shooting programs undertaken since February 2020.
[158]T140-141.
However, I have earlier identified that the text of the authorisations does not identify the terms ‘pest animals’ or ‘wildlife’ in inverted commas or by reference to any particular statutory or other source and, despite the close attention given to those particular terms extracted and alone as a consequence of the plaintiff’s present argument, in my view they are more naturally read as part of the general descriptors to which I have referred.
Read in that way, it is clear enough that the ‘old’ authorisations were issued in broad terms intended to embrace future combinations of particular ‘park[s]’, ‘contract[s]’, ‘direction[s]’ and ‘approved Parks Victoria pest animal control or wildlife management program[s]‘ which, as I have indicated, also embraces the present program.
For those reasons, I consider that a proper construction of the ‘old’ authorisations – by reference to their text, context and purpose and having regard to both the ‘statutory scheme’ and the ‘real world’ – did not exclude and, indeed, embraced the present program.
It follows, in my view, that the ‘old’ authorisations were effective to authorise the eight unidentified professional shooters to carry a gun or other weapon in the Alpine National Park in connection with the program of ground shooting conducted prior to 24 October 2022. Consequently, the shooting and killing of horses in the Alpine National Park in the course of that program was carried out ‘in accordance with’ the Code and the precondition for disapplying the POCTA Act is satisfied.
In light of the above, the second issue must be resolved in favour of the defendant.
FIssue 3: whether aerial shooting can be ‘in accordance with’ the Code
The third issue arises similarly to the second, although the defendant contends that it is ‘entirely hypothetical’[159] and therefore ‘not ripe for determination’.[160]
[159]Outline of submissions of Parks Victoria dated 22 November 2022, [62].
[160]T202.
In that regard, senior counsel for the defendant pointed to various aspects of the evidence, including various things said and not said in the evidence of Mr Pegler.[161]
[161]T203-210.
Senior counsel submitted that the defendant was not currently conducting or planning to conduct aerial shooting because it is ‘satisfied with the efficacy of ground shooting to date’.[162] He referred to Mr Pegler’s evidence that aerial shooting of the horses was ‘not currently on the cards’[163] and also pointed to the aspects of the evidence directed to practical considerations.
[162]Outline of submissions of Parks Victoria dated 22 November 2022, [59]. See also, Exhibit A (CB740, [66]).
[163]T81.
For its part, the plaintiff pointed to matters such as the contemplation of aerial shooting in the Horse Action Plan, the very modest success of the defendant in trapping and ‘re-homing’ horses, limitations in respect of ground shooting, the efficiency of aerial shooting and the fact that the defendant considers there to be an urgent need to remove horses from the Alpine National Park.[164] Senior counsel for the plaintiff submitted that it should be found that the defendant ‘will move to aerial shooting’ in order to implement the Horse Action Plan.[165]
[164]T149-152.
[165]T151.
This aspect of the third issue requires consideration of the evidence of Mr Pegler, in particular, as well as the other circumstances highlighted in submissions. In that connection, among other things –
(a) the defendant has an obligation under statute to ‘exterminate or control’ the horses in the Alpine National Park;[166]
[166]National Parks Act (n 1) s 17(2)(a)(iii).
(b) in about 2017-2018, the defendant considered the impacts of horses in the Alpine National Park to be at ‘critical levels’;[167]
[167] Exhibit A (CB930).
(c) indeed, the ‘degradation and loss of habitats caused by feral horses’ was then listed as a ‘potentially threatening process’ under the Flora and Fauna Guarantee Act 1988 (Vic);[168]
[168]Ibid (CB936).
(d) the problem was not alleviated during the time of the Strategic Action Plan, and in 2021 the Horse Action Plan described the situation as ‘urgent’;[169]
[169]Ibid (CB978).
(e) in that connection, the defendant has moved to embrace ground shooting as ‘the most humane, safe and effective method available’ and also identified circumstances in which aerial shooting ‘is the most effective technique’;[170]
[170]Ibid (CB1003-1004).
(f) in that regard, the Horse Action Plan states that aerial shooting ‘may be applied in exceptional circumstances or if other methods fail to remove sufficient horses to reduce ecological impact’;[171]
[171]Ibid (CB1004).
(g) in oral evidence, Mr Pegler conceded that thousands of horses need to be removed from the Alpine National Park,[172] ‘rehoming’ has not enjoyed a lot of success to date[173] and the present ground shooting program has only removed ‘tens’ of horses;[174]
[172]T72.
[173]T65.
[174]T70-71.
(h) Mr Pegler confirmed that the defendant has experience with aerial shooting of other animals and regards that method as having been ‘very effective and successful’;[175]
(i) indeed, Mr Pegler confirmed that the defendant has the ‘know-how, expertise, and resources to arrange aerial shooting, effectively’;[176] and
(j) in that connection, there is a standard operating procedure in respect of aerial shooting of horses[177] and, as I have earlier indicated, at least some of the shooters in the ground shooting program seem likely to have been involved in the ongoing aerial shooting program relating to other animals.
[175]T79.
[176]Ibid.
[177]Exhibit 3 (CB717-723).
Notwithstanding the above, as the defendant emphasised, Mr Pegler gave evidence that the defendant was satisfied with the efficacy of ground shooting to date,[178] no planning had recently been undertaken in order to implement the aerial shooting of horses and that such shooting was ‘not currently on the cards’.[179]
[178]Exhibit A (CB740, [66]).
[179]T80-81.
I have already referred to some perplexing features of the evidence of Mr Pegler, particularly –
(a) Mr Pegler could not say precisely how many horses had been killed in the ground shooting program to date, albeit that –
(xiv) he has been involved in consideration of the question of control of horses in the Alpine National Park since at least 2017 when he was involved in the preparation of the Strategic Action Plan, and so must understand the controversial nature of the issue;
(xv) he was requested for cross examination and it must have been anticipated that he would be asked about how many horses had been killed in the program (as it was not identified in his affidavit, or, for that matter, in the agreed statement of facts); [180]
[180]The agreed statement of fact referred to ‘a number’ of animals, including horses, having been killed: see, Exhibit 4, [12].
(xvi) in that regard, the services contract requires that the contractor assist the ‘Parks Victoria project manager’ to ‘summarise outcomes’ within five days of the end of each operation, including specification of ‘the number of feral animals and type shot’;[181]
[181]Exhibit A (CB1068).
(xvii) further, notes from a communications log exhibited to Mr Pegler’s affidavit might reasonably be thought to have originally included those numbers[182] – albeit that the numbers are redacted in the version of the notes exhibited to the affidavit tendered at trial;
[182]Ibid (CB1110-1115). Cf., Exhibit A (CB737, [53.6]-[53.7]).
(xviii) it seems unlikely that only redacted versions of those notes would have been available to Mr Pegler;
(xix) by contrast, his affidavit did give precise numbers of deer and other animals shot and killed in the shooting program in and for some weeks after February 2020,[183] as well as the numbers of horses ‘re-homed’[184] (specifically clarified and corrected by him in oral evidence);[185] and
[183]Exhibit A (CB729, [31]).
[184]Ibid (CB730-31, [36]).
[185]T61.
(xx) early in his evidence, Mr Pegler seemed rather reluctant to proffer any number of horses that might have been shot in the course of the ground shooting program;[186] but later, when the consequence of the number might be thought to be different, he seemed somewhat less reticent;[187]
(b) Mr Pegler said that ‘the rate … [that] horses have been killed during those operations is satisfactory’,[188] albeit that he could not identify with any precision the number of horses killed and also said that there was not ‘a quantitative threshold … as yet’ for an assessment as to when aerial shooting would become necessary in order to further reduce the horse population in the Alpine National Park.[189]
[186]T70-71.
[187]T90-91.
[188]T70.
[189]T90.
Notwithstanding the above, it would be a strong thing to reject Mr Pegler as a witness of truth, particularly when he gave evidence in circumstances where he was affected by COVID-19 and I did not get the impression that he was motivated by any desires of dishonesty. I am more inclined to the view that he was somewhat unfocussed and even slightly unprepared prior to giving oral evidence, perhaps as a consequence of his health.
It follows that I do not reject the evidence of Mr Pegler that, in the most general sense, the defendant is currently satisfied with the efficacy of ground shooting and the aerial shooting of horses in the Alpine National Park is ‘not currently on the cards’. However, as I have indicated, that evidence would have been considerably more meaningful if any statistical analysis and quantitative thresholds lying behind it could have been made evident.
Moreover, it seemed apparent in the evidence of Mr Pegler that the most significant reason that aerial shooting is not currently ‘on the cards’ is a sensitivity of the defendant to the public perception that aerial shooting cannot be performed humanely.[190]
[190]Ibid.
Historically, similar considerations affected the willingness of the defendant to embrace any ground shooting of horses in the Alpine National Park.[191] However, the defendant has come to implement such a program. That has occurred in circumstances in which, at least in part, the defendant has sought to manage those concerns by requiring that the program be covert and subject to ‘the highest levels of information security’.[192]
[191]Exhibit A (CB948, 972).
[192]Exhibit A (CB1067).
In the circumstances to which I have referred, particularly in which the situation is considered urgent, aerial shooting has already been given significant consideration and is in particular circumstances authorised by the Horse Action Plan, aerial shooting of other animals is ongoing, a relevant standard operating procedure exists and professional shooters holding authorisations issued under the National Parks Act are seemingly available, I do not accept that there are any significant practical hurdles to the implementation of such a program. Indeed, as with the ground shooting program, it seems to me that any such hurdles could be overcome covertly and an aerial shooting program implemented in the Alpine National Park at relatively short, if any, notice to the plaintiff and other interested persons.
In light of the above, I do not accept that the prospect of aerial shooting of horses in the Alpine National Park is merely theoretical. There must be a real prospect that in the foreseeable future the defendant will come to contemplate and, more likely than not, seek to undertake some degree of aerial shooting of horses in the Alpine National Park in order meaningfully to address the ‘urgent’ problem it emphasises in the Horse Action Plan. That has not occurred during the last five years, and it is not evident that the present ground shooting program – which is subject to the risk of protest action and, in any event, has only led to the destruction of horses numbered ‘in the tens’ over the course of some 15 days of operations – is likely to achieve the kind of reductions acknowledged as required in the evidence of Mr Pegler. It follows, in my view, that the issue is sufficiently ‘ripe’ in order that it should be determined.
The plaintiff contends that aerial shooting cannot ‘fit’ within the Code by reason of the following clauses –
3.6Every animal which is shot must be immediately examined to ensure that it is dead. Every animal which isn’t dead on retrieval must be humanely destroyed immediately.
3.7If an animal is wounded and escapes, all reasonable attempts must be made to locate it so it can be killed quickly and humanely before hunting another animal.
I have earlier referred to the structure of the Code. Clauses 3.6 and 3.7 appear in section 3 relating to ‘minimum standards’ of ‘hunter conduct’. The plaintiff says, in substance, that there is ‘no way’ that aerial shooting can comply with those standards. In particular, it submits that[193] –
[193]Plaintiff’s outline of submissions dated 15 November 2022, [79]-[83].
(a) a horse cannot be ‘immediately examined’ from a helicopter as ‘physical proximity’ is required in order to be ‘satisfied that life has [been] extinguished’;
(b) there cannot be any ‘retrieval’ in respect of shooting in rugged terrain; and
(c) it is ‘not plausible’ to think that ‘all reasonable attempts’ could be made to locate a wounded animal in rugged terrain, as that would include being able to land the helicopter.
As earlier indicated, I do not accept that the Code requires all animals that have been shot and killed to be ‘retrieved’.
As to the remaining two issues, albeit that Mr Pegler was asked about aerial shooting, he was not relevantly asked about any steps undertaken in order to –
(a) locate wounded animals; or
(b) examine animals that have been shot in order to ensure that they are dead.
Further, for the most part, the documents tendered into evidence were not directed specifically to the issues presently required to be determined.
It follows that, in order to determine the remaining issues, the arguments of the parties tended to invite a little bit of untutored judicial imagination.
Without seeking to be in any way critical of the parties or practitioners, it was not the most robust or reliable of foundations in order to form a view that there was ‘no way’ in which aerial shooting of horses could comply with the above clauses of the Code.
In any event, the most relevant of the documents tendered would seem to be what appeared to be accepted as the standard operating procedure entitled ‘HOR002: Aerial shooting of feral horses’.[194] That document states that ‘aerial shooting can be a humane method of destroying feral horses’ when, among other things[195] –
(a) it is carried out by experienced and skilled shooters and pilots; and
(b) ‘wounded animals are promptly located and killed’.
[194]Exhibit 3 (CB717-723).
[195]Ibid (CB717).
As I have noted, the defendant has been undertaking aerial shooting of other animals in the Alpine National Park since February 2020, and at least some of the shooters involved are likely to be those now involved in the ground shooting program. All of the shooters seem to be professional and experienced.
In that context, the standard operating procedure speaks to[196] –
[196]Ibid (CB718).
(a) the humane method of destroying feral horses – using only head or chest shots;
(b) ‘a deliberate policy of overkill … where a minimum of two shots are used per animal … to ensure death’;
(c) the difficulty in assessing from a distance if an animal is dead after it is shot (which implicitly must include the use of binoculars);
(d) consequently, the mandating of a ‘fly-back procedure’ by which ‘the shooter is flown back over the shot animals so that follow-up shots to the vital areas can be applied’; and
(e) the use, in some areas, of ‘a ground crew of several people walking or on all-terrain vehicles can be used to locate and humanely kill any wounded animals’.
Later, the standard operating procedure clarifies and specifies that[197] –
[197]Exhibit 3 (CB720-721).
(a) the aircraft involved ‘should be manoeuvrable, fast and responsive to allow quick follow-up of any wounded animals’;
(b) a horse should only be shot at when it can be clearly seen and recognised, it is within the effective range of the firearm and ammunition being used and a ‘humane kill is probable’;
(c) ‘if in doubt, do NOT shoot’;
(d) as ‘animals can appear to be dead but might only be temporarily unconscious after a single shot’, ‘all animals must receive multiple shots to the vital areas to ensure a rapid death’; and
(e) a ‘fly-back procedure’ must be followed ‘to ensure death and apply follow-up shots to vital areas if necessary’.
It is implicit that by applying such a procedure, any wounded animals can be ‘promptly located and killed’.
Further, I do not accept the submission of the plaintiff that, in effect, immediate examination of an animal to ensure death requires that it be inspected at close quarters and on the ground. In a setting in which experienced professionals are –
(a) applying a procedure involving ‘overkill’ and a ‘fly-back procedure’ that is explicitly designed to ensure the death of the animals shot;
(b) likely to be equipped with specialised equipment including binoculars; and
(c) likely to know and understand animal behaviour and therefore when an animal is dead –
it would seem to me to be likely to be sufficient to satisfy the relevant ‘minimum standards’ in the Code.
In that regard, I could not conclude that in such circumstances there was ‘no way’ that the professional and experienced shooters involved could comply with the minimum standards stated in clauses 3.6 and 3.7 of the Code.
It follows that –
(a) I am unable to accept that any foreseeable program of aerial shooting of horses could not be in compliance with the relevant clauses of the Code; and
(b) the substance of the third issue must be resolved in favour of the defendant.
G Conclusions
In light of the above, each of the issues presented for determination cannot ultimately be resolved in favour of the plaintiff.
It follows that the plaintiff’s application for injunctive and declaratory relief must be refused and, in substance, the proceeding dismissed.
I will hear counsel concerning the form of appropriate orders.
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