Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03810

AUSTRALIAN SOCIETY FOR KANGAROOS INC	Plaintiff
v
SECRETARY, DEPARTMENT OF ENVIRONMENT, LAND, WATER AND PLANNING	First Defendant
- and -
SECRETARY, DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25–26 June 2018
DATE OF JUDGMENT:	27 July 2018
CASE MAY BE CITED AS:	Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 407

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WILDLIFE – Authorisation to cull kangaroos – Protected wildlife – Whether the delegate of the Secretary is satisfied that an authorisation is necessary to support a recognised wildlife management plan – Meaning of ‘necessary’ and ‘recognised’ wildlife management plan – Panel recommendations – Jurisdictional fact – Whether decision to grant an authorisation is unreasonable, illogical or irrational – Wildlife Act 1975 (Vic) ss 1A, 28A(1)–(2), 28B, 28C, 28F, 43, 47.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC with Ms A Smietanka	Phoenix Legal Solutions
For the First and Second Defendants	Mr J Pizer QC with Mr A Hoel	Victorian Government Solicitors Office

HIS HONOUR:

Introduction

The plaintiff seeks a declaration from the Court that a decision to authorise the destruction of a mob of approximately 400 eastern grey kangaroos (‘the authorisation’) located at the site of the Melbourne Wholesale Market at 312–325D Cooper Street, Epping (‘the site’) was unlawful. The plaintiff is an incorporated association formed in 2011, which seeks to conserve and protect kangaroos and wallabies.

The heads of two State Government departments are named as the defendants to this proceeding. The first department involved in this proceeding is the Department of Environment, Land, Water and Planning (‘DELWP’). The Secretary of DELWP (‘Secretary’) was the decision maker when the authorisation was granted on 25 July 2017, acting by an authorised delegate, Ms Suriya Vij. Ms Vij was the Program Manager, Compliance Operations, Port Phillip Region of DELWP when the authorisation was given.

The second department is the Department of Economic Development, Jobs, Transport and Resources (‘DEDJTR’). On 20 July 2017, Mr Craig Hough, Policy Manager, Agriculture, DEDJTR, acting on behalf of the Secretary of DEDJTR, sought the authorisation subsequently granted by Ms Vij under s 28A of the Wildlife Act1975 (Vic) (‘Act’).

Relevant provisions of the Act

Section 1A sets out the purposes of the Act:

(a) to establish procedures in order to promote—
(i) the protection and conservation of wildlife; and
(ii)the prevention of taxa of wildlife from becoming extinct; and

(iii) the sustainable use of and access to wildlife; and
(b)to prohibit and regulate the conduct of persons engaged in activities concerning or related to wildlife.

Section 3(1) of the Act contains the definitions of terms used in the Act. It is common ground that kangaroos are ‘protected wildlife’ and are not ‘threatened wildlife’ as defined in s 3.

Part 3A of the Act is concerned with authorisations. Section 28A provides:

(1)Subject to subsection (1AA), the Secretary may give written authorisation to a person to do all or any of the following—
(a) hunt, take or destroy wildlife;
(b)buy, sell, acquire, receive, dispose of, keep, possess, control, breed, process, display, take samples from or experiment on wildlife;
(ba)mark wildlife, handle wildlife for the purpose of marking it and interfere with the markings on wildlife—

if he or she is satisfied that the authorisation is necessary—
(c)because wildlife is damaging any building, vineyard, orchard, crop, tree, pasture, habitat or other property owned, occupied or administered by the person to whom the authorisation is to be issued or property adjacent to or in proximity to such property; or
(d)for the purposes of the management, conservation, protection or control of wildlife or for the purposes of education about wildlife, research into wildlife or scientific or other study of wildlife; or

(e) for aboriginal cultural purposes; or
(f)for the purposes of enabling the care, treatment or rehabilitation of sick, injured or orphaned wildlife; or
(g)for the purposes of ensuring the health or safety of any person or class of persons; or

(h) to support a recognised wildlife management plan; or
(i)to make provision for the custody, care and management of wildlife, held under another authorisation or a licence which has been suspended, during the period of that suspension.

…
(1A)The Secretary may give written authorisation to a person to disturb wildlife or cause wildlife to be disturbed if the Secretary is satisfied that the authorisation is necessary—
(a)because the wildlife is damaging any building, vineyard, orchard, crop, tree, pasture, habitat or other property, owned, occupied or administered by the person to whom the authorisation is to be issued or property adjacent to or in proximity to such property; or

(b)       to support a recognised wildlife management plan.
(2)An authorisation is subject to any conditions, limitations or restrictions placed on that authorisation or that category of authorisation—
(a)       by the Secretary; or
…
(b)       by the regulations.
(3)An authorisation is subject to the condition that the holder of the authorisation must allow inspection by an authorised officer, at any reasonable time, of any dwelling house specified in the authorisation for the purpose of monitoring compliance with this Act, the regulations or the conditions of the authorisation.

Section 28C provides that an authorisation continues in force for the period specified in the authorisation not exceeding three years. Section 28F(1) empowers the Secretary to cancel an authorisation if satisfied that there are reasonable grounds to do so.

Offences are found in pt 7 of the Act. The hunting, taking or destruction of protected wildlife (including kangaroos) is prohibited and is an offence unless the person holds an authorisation, or is a member of a class of persons in respect of whom an authorisation has been made.[1]
[1]Act s 43.

Factual background
The panel’s 2012 recommendations

In 2012, the Minister for Environment and Climate Change established an Independent Panel of Experts (‘the panel’) to advise the Secretary in relation to applications for the control of wildlife. It included people with experience in animal welfare, veterinary science and wildlife management. The panel considered the mob of kangaroos at the site, recommending shooting as the most humane method of removing the kangaroos. The panel based its 2012 recommendations on animal welfare concerns. It considered that the kangaroos were stressed because of urban development, the proximity of humans and vehicles, and were at risk from disease and starvation due to high stocking density and their inability to migrate.

The panel reviewed and rejected six non-lethal options for the kangaroos at the site:

(1)in-situ retention by progressive fencing of the kangaroos into smaller remnants;
(2)active habitat degradation to encourage or force them to leave;
(3)fertility control to reduce population increase;
(4)translocation to another site;
(5)fencing and passive dispersal to private land; and
(6)fencing and active herding to private land.

With respect to the option of translocation, the panel stated:

Translocation is not an acceptable option as kangaroos are highly philopatric (attached to their familiar home range) and will travel considerable distances to return, crossing roads and other barriers if required, creating a hazard to themselves and to humans in the process. In addition, the welfare of any resident kangaroos at other sites may also be compromised by the arrival of a new population. Most areas where kangaroos occur are at carrying capacity and in many cases destruction of kangaroos is permitted. Translocation is stressful to kangaroos and involves a level of mortality from stress.

The panel observed that ‘within about five years there will be no habitat and there cannot be any kangaroos’.

Melbourne Growth Areas kangaroo management strategy report

In 2013, the predecessor of DELWP prepared a strategy report reviewing the methods available for controlling the kangaroo population in Melbourne’s growth areas (‘strategy report’).[2] It evaluated the advantages and disadvantages of each method, and their suitability in a range of scenarios.
[2]The report was entitled ‘Management of Kangaroos in the Growth Areas of Melbourne: Strategic Approach’ (Department of Environment and Primary Industries, 2013).

The methods for controlling kangaroo populations assessed in the strategy report were:

(1)   exclusion fencing;
(2)   removing attractants;
(3)   fencing and active herding;
(4)   scaring;
(5)   translocation;
(6)   fertility control;
(7)   in-situ retention; and
(8)   culling.

The report advised that culling may be an appropriate management option where:

(a) a population is landlocked by development and the land is not suitable for an in-situ population;

(b) an in-situ population exceeds the sustainable population limit;

(c) in-situ management is not feasible or humane, and there are animal welfare or human safety risks;

(d) particular unhealthy animals in an otherwise healthy population need to be euthanised; or

(e) particular animals have become accustomed to humans and are becoming bold or aggressive.

The first application

On 3 February 2017, the Acting Secretary of DEDJTR applied for an authorisation to undertake a cull of the entire eastern grey kangaroo population at the site. The application stated that the kangaroo population was effectively landlocked by roads, housing developments and the new Melbourne Market building at the site. It described the kangaroo population as malnourished with some disease indicative of stress and as posing a threat to people and vehicles on roads and in the neighbouring housing estates. There was a substantial flow of traffic in and out of the site, particularly early in the morning, which conflicted with the kangaroos roaming the site in search of food.

The application stated that the advice from the panel monitoring the kangaroo population was that the best animal welfare outcome on the site was a complete cull. Under the Kangaroo Management Plan (2015) (‘kangaroo management plan’), there had been monthly independent monitoring of the population size, health and fodder availability. The population had increased to an unsustainable level.

The application was referred to Ms Vij as the delegate of the Secretary. She corresponded by email with officers of DELWP and DEDJTR about the application and sent it to the panel for advice. In May 2017, she forwarded DEDJTR’s project plan (‘the project plan’) to the panel.

The project plan

The plan was to cull up to 450 kangaroos at the site. The plan recited that DEDJTR, DELWP, Ecology Australia and RSPCA agreed that a cull was the most appropriate action. A wildlife control company was to conduct the operation.

The objective of the project plan was to ensure that there were no kangaroos remaining at the site, while all reasonably practicable precautions were in place to:

(a) reduce the threat to human safety;

(b) ensure that animal suffering was minimised during the operation; and

(c) protect the reputation of key stakeholders.

The plan described the operation as 'a covert operation to minimise the chances of people becoming aware the activity has been scheduled or is underway'. The operation was to be conducted on 1, 2 and 3 August 2017 between sunset and sunrise, and was restricted to moonless or overcast nights. This was to provide the greatest level of seclusion and be more humane for the animals.

Over the period of late May and June 2017, Ms Vij was in regular contact with other officers of DELWP about a possible authorisation.

The panel’s 2017 recommendations

On 8 June 2017, the panel met to consider the application and provide recommendations.

The panel described the position in these terms:

There is a population of 380–450 eastern grey kangaroos at the Melbourne Wholesale Market Precinct in Epping, managed by [DEDJTR]...
The kangaroos cannot move elsewhere because the site is surrounded by urban development and main roads. The population has more than doubled since monitoring began in 2010 when 180 kangaroos were recorded. Since 2009, DEDJTR has managed the population in accordance with a kangaroo management plan, including regular monitoring of population numbers, animal welfare, available food, movements, road-kills and parasite levels.
The monitoring has determined that there is insufficient food available for the kangaroos which is impacting animal welfare. The kangaroos are susceptible to disease and starvation.
DEDJTR, [DELWP], Ecology Australia and RSPCA Victoria agree that shooting the kangaroos is the most humane option.

At its meeting on 8 June 2017, the panel was unanimous in viewing destruction of all kangaroos on the site as remaining the most appropriate action. Non-lethal actions were inappropriate.

The panel recommended that all kangaroos on the site be removed by destruction for animal welfare reasons to prevent the kangaroos from suffering further from disease, starvation, stress and vehicle collisions. Shooting by licensed professional shooters in accordance with the national code of practice was the most humane method to destroy the kangaroos.[3]
[3]Natural Resource Management Ministerial Council, National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Non-Commercial Purposes (7 November 2008) (‘national code of practice’).

The second application

On 20 July 2017, Ms Vij requested that DEDJTR provide a fresh application. She was concerned to ensure that the application was made on behalf of the Secretary DEDJTR, and that the site was more fully described as 315–325D Cooper Street, Epping. Mr Craig Hough, Policy Manager, Agriculture, DEDJTR submitted the second application on behalf of Secretary DEDJTR. The application was in other respects the same as the first.

The kangaroo management plan

The kangaroo management plan was prepared in 2015 by Graeme Coulson of Macropus Consulting and Bernadette Schmidt of Ecology Australia. It followed a peer-reviewed Kangaroo Management Plan (2009), a Revised Kangaroo Management Plan (2010), a Review of the Revised Kangaroo Management Plan (2011), and the strategy report. Since 2010, the kangaroo population at the site had been monitored to assess its abundance and density, the availability of food resources, parasite loads, disease prevalence and mortality rate. There had been no active intervention to manage the population.

The plan reviewed the options for the management of a land-locked kangaroo population. As the timing of future development of the site was unresolved, the plan took a flexible approach, identifying alternative management scenarios and making recommendations for the active management of kangaroos for each scenario.

The plan described the reduction in habitat for kangaroos at the site from approximately 245 hectares in 2009 to 51 hectares in 2015. Grass biomass had fallen to the lowest level ever recorded. Despite the reduction in habitat area, and the low level of grass biomass, the mob of kangaroos on the site had increased from 200–300 kangaroos in 2009 to a record of 453 in July 2015. The population density at the site increased to eight kangaroos per hectare. This was the highest density ever recorded for the species anywhere in its range.

Food availability fluctuated over time, rising in some seasons and falling in summer. The overall trend was a progressive decline in food availability. At the time of the kangaroo management plan, food availability was at its lowest level since monitoring began. Four cases of the disease lumpy jaw had been detected, although more cases were likely to remain undetected. Morbidity and mortality on site were relatively uncommon. Individual deaths had been recorded with some regularity, but there was no evidence of a mass mortality event.

Referring to the strategy report, the kangaroo management plan discussed the issues of animal welfare, vehicle collisions and human conflicts. It gave reasons why each option (other than culling) was unacceptable. The reasons included high injury risk to kangaroos, poor success rate, adverse impacts to humans and kangaroos, difficulties in capturing and moving wildlife, and in finding suitable translocation recipient sites, disease transfer and cost. Culling is a management option where non-invasive options have not succeeded. Culling is typically by shooting, but sometimes involves capture darting followed by lethal injection.

Market site: eastern half

The management plan made recommendations for the different areas of the site. I shall describe only the recommendations for the eastern half of the site.

The plan described the kangaroo population on the eastern half of the site as essentially captive. The population density had reached levels unprecedented anywhere in Australia. Grass biomass had fallen to levels incapable of sustaining this density in the short term. The only uncertainty was whether the population would undergo a catastrophic collapse or a slower reduction to a lower and more stable density through gradual increase in mortality.

The plan gave two examples of population reduction, referring to the kangaroo population at Puckapunyal Military Area, which crashed from 1.9 kangaroos per hectare in 2001 to 1.1 kangaroos per hectare a year later. By contrast, the population at Wilsons Promontory National Park fell more gradually from seven kangaroos per hectare in 2011 to three kangaroos per hectare in 2014, but animal welfare was poor in all three years.

Scenario 1: land developed within 12 months

The recommendations in the plan addressed two scenarios. If the site were to be put up for sale within 12 months, the presence of a large, unmanaged kangaroo population would be a significant encumbrance on the title. Any development of the site would inevitably result in the loss of habitat for kangaroos, reduce the carrying capacity of the site, and increase animal disturbance.

For scenario 1, the plan recommended that all kangaroos in the eastern half of the site be removed by shooting at night.

Scenario 2: land retained for more than 12 months

In scenario 2, in-situ management of kangaroos would require a strong commitment to active, adaptive management. A density of one kangaroo per hectare was used as a rule-of-thumb to set an initial target. This equated to a total of 43 kangaroos on the eastern half of the site.

If scenario 2 were implemented, it was recommended that in-situ kangaroo management be undertaken in a series of steps, including:

(a) immediate reduction of population density to one per hectare by shooting at night;

(b) removal of hazards such as wire and debris on site;

(c) regular control of weeds;

(d) maintenance of water supplies for kangaroos in hot weather;

(e) control of population growth by yearly culling of small numbers of kangaroos, or by fertility control of at least 80 per cent of adult females to maintain a density of one per hectare; and

(f) ongoing monitoring of kangaroo abundance, animal health and welfare, road kills and movement.

Recognition of the kangaroo management plan

On 25 July 2017, Ms Merryn Kelly, Regional Manager, Environment and Natural Resources, Port Phillip Region, DELWP recorded her recognition of the kangaroo management plan. She intended to give the plan the status of a ‘recognised wildlife management plan’ for the purpose of s 28A(1)(h) of the Act. Ms Kelly was Ms Vij’s superior in DELWP.

A covering letter signed by Ms Kelly on the same day stated that the kangaroo management plan constituted a recognised wildlife management plan under s 28A(1)(h) of the Act. The letter advised that DELWP agreed with its recommendations and with the recommendations of the panel that shooting was the most humane option.

Monthly monitoring reports

Ms Bernadette Schmidt, a principal zoologist with Ecology Australia, prepared monthly reports monitoring the kangaroo population at the site from August 2015 until June 2017. Typically, the monthly reports contained sections dealing with:

(a) population survey;

(b) biomass availability;

(c) observations as to animal welfare;

(d) kangaroo movements and road kills; and

(e) parasite levels.

The reports showed:

(a) a very high population density of kangaroos, at a level unprecedented in Australia;

(b) low levels of biomass and forage availability;

(c) small numbers of kangaroos found dead on-site;

(d) some kangaroos in poor condition or emaciated;

(e) heavy faecal contamination of the soil and high parasite risk;

(f) a small number of kangaroos lost in road-kills;

(g) a number of kangaroos with obvious symptoms of lumpy jaw disease; and

(h) ongoing risks associated with human activity and land development on the site.

The decision to grant the authorisation
Evidence of Ms Vij

The authorisation was granted by Ms Vij on 25 July 2017. She did not give any written reasons for her decision and was not asked to do so. However, she gave her reasons and described the process leading up to the grant of the authorisation in two affidavits and in oral evidence.

First affidavit

Ms Vij said that in making her decision to grant the authorisation, subject to conditions, she had regard to the relevant provisions of the Act and to a number of documents:

(a) the application of 20 July 2017;

(b) the kangaroo management plan;

(c) the 2012 and 2017 panel recommendations;

(d) the monthly monitoring reports prepared by Ecology Australia;

(e) the guide to applying for an authority to control wildlife; and

(f) the departmental translocation of wildlife policy.

In preparing conditions to be included in the authorisation, Ms Vij said that she had regard to the project plan and the national code of practice.

Second affidavit

Ms Vij said that she was aware of the contents of s 28A(1) of the Act when she made her decision, and was satisfied that control of the kangaroos was necessary to support a recognised wildlife management plan. She considered the kangaroo management plan to be a current and recognised wildlife management plan under the Act. The authorisation would enable the plan to be carried out.

Ms Vij said that she was satisfied that the non-lethal management options considered in the plan were not viable, and that a cull was necessary. The kangaroos were landlocked, had inadequate food supply, disease issues, and were at risk of road kill. The number of kangaroos on the site fluctuated. They would lose further habitat due to development. The panel recommendations confirmed the need for a cull. She observed that the authorisation did not require any kangaroos to be culled, rather, it permitted up to 400 to be culled.

Ms Vij was satisfied that the authorisation would enable the holder to implement scenario 1 for the eastern half of the site, which was the most likely scenario, or scenario 2, if plans for the site changed. She was informed by Mr Hough of DEDJTR that the eastern half of the site was to be put up for sale within 12 months.

Oral evidence

Ms Vij gave evidence and was cross-examined. Her oral evidence can be summarised as follows:

(a) In response to questions by the plaintiff, she denied that the decision to grant the authorisation was made earlier than 25 July 2017, as she was still considering the application and gathering information right up to that day.

(b) Her consideration was for the welfare of the kangaroos on the site, rather than to enable a sale.

(c) If she received an application for an authority to control wildlife, it would be considered on its merits. DELWP’s policy on translocation of wildlife involved very strict criteria. Generally, translocation of wildlife was not supported. In view of the number of kangaroos and the disease issues on the site, the requirements for translocation would not have been met.

(d) It was agreed that if the site were to be put up for sale within 12 months the presence of a large unmanaged population of kangaroos would be a significant encumbrance on the title. However, that was a matter for DEDJTR and was not a factor in the decision. Ms Vij was satisfied that the cull was necessary for the purposes of implementing the kangaroo management plan. The information in the plan showed that the animal welfare concerns on the site were significant. Actual kangaroo management on the site was a matter for DEDJTR.

Conditions

The authorisation included 14 conditions. They referred to the manner of shooting, the providing of daily reports, the presence of an independent person, and notification of police. There was no controversy as to the conditions before me.

Subsequent action

Following the grant of the authorisation, DEDJTR acted on the authorisation through a contractor. Twenty two kangaroos were destroyed.

Cancellation of the authorisation

On 2 May 2018, DEDJTR requested cancellation of the authorisation. It had sought updated management advice in the form of a new management plan that would wholly supersede the kangaroo management plan.

On 8 May 2018, the authorisation was cancelled with immediate effect.

Role of the court

Given the nature of the issues that are discussed in this judgment, it is important to emphasise the fundamental distinction between judicial review and consideration of the merits of government policy. In Minister for Families and Children v Certain Children, the Court of Appeal said:

… we wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the merits of the decision. That is a matter of policy for Government, which is accountable to the electorate for its decisions. Quite properly, the courts play no part in such decisions.
The role of the Court in a case such as this is quite different. The function of judicial review is to ensure that Government operates according to law, that powers conferred on Ministers and public officials by statute are exercised within the legal limits fixed by Parliament…
It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure. This is one of the guarantees of the rule of law.[4]

[4](2016) 51 VR 597, 600 [10]–[12].

As in that case, I express no view about the merits of the decision under review. My role is to determine its legality having regard to the grounds relied on by the plaintiff.

Construction of s 28A(1)

There are four issues which arise concerning the Secretary’s power in s 28A(1) of the Act. They are:

(1)When is the power engaged?
(2)What is the meaning of the word ‘necessary’ in s 28A(1)?
(3)What is the meaning of the word ‘recognised’ in s 28A(1)(h)?
(4)What is the nature of the discretion conferred by s 28A(1) on the Secretary?

Principles of statutory construction

The principles of construction relating to statutes are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Heydon JJ said:

... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[5]

[5]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Heydon JJ) (citations omitted).

A plurality of the High Court recently emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simple recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[6]

[6]SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, 940–941 [14] (Kiefel CJ, Nettle and Gordon JJ).

In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:

… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[7]

[7]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

These principles are consistent with s 35 of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting a provision of an Act, a construction that would promote the purpose or object underlying the Act be preferred to a construction that would not promote that purpose or object.

The role of s 28A of the Act

The Act has two purposes.[8] The first is to establish procedures to promote the protection and conservation of wildlife, the prevention of taxa of wildlife from becoming extinct, and the sustainable use of and access to wildlife. The second is to prohibit and regulate the conduct of persons engaged in activities concerning or related to wildlife.
[8]Act s 1A.

To achieve these purposes, the scheme of the Act is to prohibit the hunting, taking or destroying of threatened or protected wildlife, which is made an offence unless the person concerned holds, or is one of a class of persons who hold, a licence, authorisation or authorisation order. Without authorisation, the acquisition of threatened or protected wildlife is unlawful, as are a wide variety of actions by humans that would or might endanger wildlife.[9]
[9]Ibid ss 41–43.

Section 28A has a pivotal role within the scheme of the Act. Given that the purposes of the Act are about the preservation of wildlife and the control of human activities concerning wildlife, it must be carefully construed and applied with these subjects in mind.[10] Under s 28A, the Secretary may give authorisation to perform actions that would otherwise be an offence under the Act. Section 28A sets out the procedures and requirements by which authorisation may be granted.
[10]See Interpretation of Legislation Act 1984 (Vic) s 35(a).

The legislature has inserted safeguards into s 28A to ensure that the power to grant an authorisation is wisely used and carefully controlled. They include:

(a) the power to give an authorisation is only given to the Secretary and delegates of the Secretary;

(b) an authorisation must be given in writing;

(c) the power can only be exercised for one of seven specified purposes listed in s 28A(1)(c)-(i);

(d) before an authorisation can be granted, the Secretary must be satisfied that the authorisation is necessary for that purpose;

(e) an authorisation may (and ordinarily will) be subject to conditions, limitations or restrictions;

(f) it is an offence to fail to comply with an authorisation;

(g) an authorisation can only be granted for a period of time not exceeding three years; and

(h) an authorisation can be cancelled or suspended if the Secretary considers that there are reasonable grounds to do so.[11]

[11]Act ss 28A–28F.

In summary, s 28A(1) and (2) empower the Secretary to give an authorisation to hunt, take, destroy or carry out other prohibited actions concerning wildlife, but only if the authorisation is necessary for a reason specified in s 28A(1) and subject to any conditions, limitations and restrictions found in the Act or included in the authorisation.

When is the power engaged?

The plaintiff submitted that the specified purpose listed in s 28A(1)(c)-(i) must exist as a matter of objective jurisdictional fact, and is a condition precedent to the exercise of the power to grant an authorisation.[12] The Secretary must also be satisfied that the action permitted by the authorisation is necessary.
[12]Citing Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54, 59 [21] (‘Anvil Hill’); Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (‘Timbarra’).

The Secretary submits that s 28A(1) should be read as a whole. Under s 28A(1)(h), the test is whether the Secretary is satisfied that the authorisation is necessary to support a recognised wildlife management plan. It is for the Secretary to decide as a subjective jurisdictional fact whether the specified purpose exists.

The submissions give rise to two issues. The first issue is whether the decision as to whether the purpose exists is a decision made by the Secretary, or whether it is an objective fact that falls to the Court to determine on the evidence presented to it. The second issue is whether s 28A(1) requires the Secretary to be satisfied that the authorisation is necessary in general or for the specific purpose.

Subjective or objective jurisdictional fact?

The first issue is whether the existence of a permissible purpose is a question to be determined by the Secretary, or objectively determined by a court. Similar issues have been considered by courts on many occasions and in a variety of contexts.

In City of Enfield v Development Assessment Commission, the High Court said that the ‘term “jurisdictional fact” (which may be a complex of elements) is often used to identify the criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.’[13]
[13]City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

The determination of whether a jurisdictional fact is subjective or objective is a matter of statutory construction. In Plaintiff M70/2011 v Minister for Immigration and Citizenship (‘Malaysian Declaration Case’),[14] the High Court considered a ministerial declaration which required the existence of four criteria for its validity. The plurality of the Court held that the criteria which must exist before the Minister could make a declaration in writing had to be objectively satisfied for the power in s 198A(3) of the Migration Act 1958 (Cth) to be enlivened.[15] The power was in this form:
[14](2011) 244 CLR 144.
[15]Ibid 193–194 (Gummow, Hayne, Crennan and Bell JJ).

The Minister may:
(a) declare in writing that a specified country:
(i)provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii)provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii)provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv)meets relevant human rights standards in providing that protection…[16]

[16]Migration Act 1958 (Cth) s 198A(3).

The plurality rejected the Minister’s submission that the criteria in s 198A(3) were not jurisdictional facts and said:

Section 198A(3) provides that the Minister "may: (a) declare ... that a specified country" has the four characteristics identified in sub-paras (i) to (iv) of that paragraph. Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister's forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.[17]

[17]Malaysian Declaration Case (2011) 244 CLR 144, 193–194 [106] (Gummow, Hayne, Crennan and Bell JJ).

As to the meaning of the term ‘jurisdictional fact’, French CJ said in the same decision:

The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements". When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.[18]

[18]Ibid 179 [57].

In Australian Heritage Commission v Mount Isa Mines Ltd, the High Court affirmed the dissenting judgment of Black CJ in the Full Court of the Federal Court, who concluded that the validity of the decision under challenge depended on the decision maker’s own view of the matter, determined by making assessments and value judgments, rather than an objective ascertainment of a jurisdictional fact.[19]
[19]Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 303–304 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ), quoting Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, 468 (Black CJ) (‘Australian Heritage Commission’).

The principles outlined by Black CJ in Australian Heritage Commission and affirmed by the High Court were helpfully summarised by Perram J in Australian International Pilots Association v Fair Work Australia:

1. whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision maker or, instead, by the bare existence of the matter itself is a question of statutory construction;
2. the resolution of that question is assisted by an examination of the nature of the task reposed in the decision maker—where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision maker would have power to make its own determination of that matter;

3. the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what Parliament intended; and
4. the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand.[20]

Subjective form – requirement for satisfaction

[20]Australian International Pilots Association v Fair Work Australia (2012) 202 FCR 200, 233–234 [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, 466–467.

In Minister for Immigration v SZMDS, Gummow ACJ and Kiefel J (in dissent) highlighted the statement of principle by Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council:

The section is framed in a 'subjective' form – if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and] whether the judgment has not been made upon other facts which ought not to have been taken into account.[21]

[21]Minister for Immigration v SZMDS (2010) 240 CLR 611, 620 [21] (‘SZMDS’), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047.

Similarly, Crennan and Bell JJ, forming part of the majority, referred to the statement of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation regarding the empowerment of a decision maker to act upon being ‘satisfied’ of a state of affairs:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review ... If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.[22]

[22]SZMDS (2010) 240 CLR 611, 639 [104], quoting Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353, 360.

In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Gummow and Hayne JJ said:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned…
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.[23]

[23]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [37]–[38].

In Timbarra, the New South Wales Court of Appeal said:

Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.[24]

[24]Timbarra (1999) 46 NSWLR 55, 64 [40] (Spigelman CJ; Mason P and Meagher JA agreeing).

The Court held that where words referring to the mental state of the decision maker appear, the position is often different:

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. Where such words do not appear, the construction is more difficult.[25]

Analysis

[25]Ibid 64 [42] (citations omitted).

In the present case, s 28A(1) uses the expression, ‘if he or she is satisfied’ that ‘the authorisation is necessary’ in relation to each of the matters in sub-s (c)–(i). This is a clear indication that it is the Secretary to whom the legislation has entrusted the power to determine whether a specified purpose exists, if the power to issue an authorisation is to be enlivened. The section is framed in a subjective form.[26]
[26]See above [77].

In my opinion, s 28A(1) requires the Secretary to be satisfied that the authorisation is necessary for the particular purpose set out in one of sub-s (c)–(i). It does not require or authorise a court to independently inquire or objectively determine whether the authorisation satisfies the requirements of one of sub-s (c)–(i).

The decision to be made under s 28A(1) is of an evaluative character. It may concern the management or conservation of wildlife, or purposes of education or scientific study (sub-s (d)). It may involve the ascertainment of aboriginal cultural purposes (sub-s (e)), or the care and treatment of sick, injured or orphaned wildlife (sub-s (f)) or the health and safety of one or more persons (sub-s (g)). It is clearly more convenient if the decision is made administratively by the Secretary on a case by case basis and not by the Court.

Consequently, it is evident that the requirement for the Secretary be satisfied that the authorisation is necessary for a purpose specified in sub-s (c)–(i) is a subjective jurisdictional fact.

This does not mean that the Secretary’s decision under s 28A(1) is immune from judicial review. It is open to challenge in a court on grounds such as unreasonableness, irrationality or illogicality, if irrelevant matters have been taken into account, or for other accepted administrative law reasons. In this instance, it is not for a court to determine the objective existence or non-existence of the relevant facts about which the Secretary must be satisfied.

Necessary for a purpose

The second issue is whether the Secretary must be satisfied that the authorisation is necessary generally, or for the specific purpose sought to be relied on.

I am of the opinion that the correct construction of s 28A(1) is that the Secretary must be satisfied that the authorisation is necessary for one of the specific purposes set out in s 28A(1)(c)–(i).

This construction is favoured by considerations of text, context and purpose. First, s 28A(1) reads, and should be read, as a whole rather than in two steps. Reading the provision as a whole is a basic principle of interpretation, which in the case of s 28A(1) gives important context to the determination of necessity.[27] Secondly, this consideration is fortified by the use of the word ‘may’ in s 28A(1). The word ‘may’ is ordinarily construed as conferring a discretionary power, in this instance the power to grant an authorisation.[28] It is consistent with the existence of an overall discretion as to the grant of an authorisation that the Secretary should be satisfied that the authorisation is necessary for a specified purpose. It would be strange indeed if the Secretary had to be satisfied that the authorisation was necessary for a specified purpose, but also had a wide discretion covering the same field of inquiry and subject matter.
[27]See Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449, 455 (Isaacs and Rich JJ); Scott v Federal Commissioner of Taxation (1966) 117 CLR 514, 524 (Windeyer J).
[28]Interpretation of Legislation Act 1984 (Vic) s 45(1).

Thirdly, it is unlikely that the legislature intended that the subject matter of the word ‘necessary’ should be at large and separate from the consideration of the purpose said to justify the authorisation. Rather necessity has to arise as to a specified purpose.

Thus, in the case of an authorisation sought for aboriginal cultural purposes, the Secretary would need to be satisfied that the authorisation was necessary for aboriginal cultural purposes, and also be persuaded that the authorisation should be given as a matter of general discretion. Likewise, in the case of an authorisation sought for the purpose of ensuring the health or safety of a person, the Secretary would need to be satisfied that the authorisation was necessary to ensure the person’s health or safety and also be persuaded as a matter of discretion that the authorisation should be given.

What is the meaning of the word ‘necessary’?

It has been noted that the word ‘necessary’ is capable of a range of meanings and must be construed in its statutory context.[29] In Mulholland v Australian Electoral Commission, Gleeson CJ said:

It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable… There is, in Australia, a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted. The High Court originally took that from McCulloch v Maryland. There is, therefore, also a long history of judicial application of the phrase "reasonably appropriate and adapted". It follows that, when the concept of necessity is invoked in this area of discourse, it may be important to make clear the sense in which it is used, especially if that sense is thought to differ from reasonably appropriate and adapted…[30]

[29]See Levi v ASIC (No 2) (2013) 277 FLR 461, 466 [32]–[34]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 65 [46].

[30]Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 199 [39], citing McCulloch v Maryland (1819) 4 Wheat. 316, 421.

In Pelechowski v Registrar, Court of Appeal, the majority of the High Court applied the definition given to the word ‘necessary’ by Pollock CB in Attorney-General v Walker, being ‘reasonably required or legally ancillary’.[31] The Court noted that the term ‘necessary’ does not mean ‘essential’, rather, it is to be ‘subjected to the touchstone of reasonableness.’[32]
[31]Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435, 452 [51] (Gaudron, Gummow and Callinan JJ) (‘Pelechowski’), citing Attorney-General v Walker (1849) 3 Ex 242, 255–256 (Pollock CB) (‘Walker’).
[32]Pelechowski (1999) 198 CLR 435, 452 [51] (Gaudron, Gummow and Callinan JJ), quoting State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447, 452. See also Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450; Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123, 126.

In Hogan v Australian Crime Commissioner, the High Court noted that the word ‘necessary’ meant more than ‘convenient, reasonable or sensible’.[33]
[33]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [30]–[31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

The Secretary relied on the decision of the West Australian Court of Appeal in A v Corruption and Crime Commission,[34] where Martin CJ and Murphy JA rejected a submission that ‘necessary’ when used in the statutory context of ‘necessary in the public interest’[35] meant ‘absolutely necessary’ or ‘indispensable’. Rather, in the context of a provision concerned with the public interest, the majority of the Court took the view that the word ‘necessary’ meant ‘reasonably required’.[36]

Analysis

[34][2013] WASCA 288, [61].

[35]Corruption and Crime Commission Act 2003 (WA) s 152(4)(c).

[36]A v Corruption and Crime Commission [2013] WASCA 288, [67]–[81]. This view is supported by Pelechowski (1999) 198 CLR 435, 452 [51] (Gaudron, Gummow and Callinan JJ). See also State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447, 452; Proprietors Units Plan No 52 v Gold (1993) 44 FCR 123, 126; National Crime Authority v Gould (1989) 23 FCR 191, 195; Jurecek v Transport Safety Victoria (2016) 260 IR 327, 352–353 [101]–[103] (‘Jurecek’); Clark-Ugle v Clark [2016] VSCA 44, [120]–[121]; Medical Board of SA v N (2006) 93 SASR 546, 556 [32] (Debelle J), 564–565 [70]–[71], 566 [80] (Besanko J).

In my view, the word ‘necessary’ as found in s 28A(1) of the Act takes the meaning of ‘reasonably required in the circumstances or legally ancillary to the accomplishment of the purpose’, as in Walker, rather than the more stringent meaning of ‘absolutely necessary’ or ‘indispensable’.

The text and context in which the word ‘necessary’ is used in s 28A(1) of the Act points strongly toward the meaning adopted. For example, in the circumstances described in s 28A(1)(c), where wildlife is damaging a vineyard, orchard, crop, pasture or habitat, insistence on ‘absolute necessity’ or ‘indispensability’ may substantially defeat the purpose for which the power is given. Likewise, it is hard to conceive of any circumstances where an authorisation to mark or handle wildlife could be considered ‘absolutely necessary’, or ‘indispensable’ for the purposes of education about wildlife, research or scientific study into wildlife as contemplated by sub-s (d). The adoption of a test of absolute necessity or indispensability is also inappropriate when considered in the context of sub-s (e). It may be difficult to conclude that an authorisation to an aboriginal community to hunt or possess wildlife is absolutely essential or indispensable, even if these activities have traditionally been undertaken by that community. Similar concern arises in the application of a test of absolute necessity or indispensability when applied to the purpose of enabling the care, treatment or rehabilitation of sick, injured or orphaned wildlife under sub-s (f) or to ensure the health or safety of any person, or class of persons under sub-s (h).[37]
[37]Cf Hoser v Department of Sustainability and Environment [2008] VCAT 2035, [45]–[46].

However, for reasons that I shall come to, the same result is achieved whether the Walker test or a test of absolute necessity or indispensability is used.[38]
[38]Below [128]–[129].

What is the meaning of the word ‘recognised’ in s 28A(1)(h)?

The plaintiff admitted that the kangaroo management plan was a recognised wildlife management plan for the purposes of s 28A(1)(h) of the Act. Nonetheless, the word ‘recognised’ is important in the construction of s 28A(1)(h).

The word ‘recognised’ is not defined in the Act, and there is nothing in the Act or in extrinsic material that sheds light on the meaning of the word. There is nothing in the Act, or any Act dealing with conservation or the environment, that sets out the process for recognising a wildlife management plan.

The Macquarie Dictionary defines ‘recognised’ as meaning ‘known to be as specified’ when used as an adjective, giving the expression ‘a recognised authority in the field’ as an example.[39]
[39]Macquarie Dictionary (Macquarie Dictionary Publishers, 6^th ed, 2013) 1227.

The word ‘recognised’ stands to be construed in the context of s 28A(1). It is the Secretary who must be satisfied that a plan is a recognised wildlife management plan.

In my opinion, in determining whether a given wildlife management plan is a recognised management plan, it is appropriate for the Secretary to have regard to relevant considerations such as:

(a) Was the plan prepared by a person suitably qualified by training, education and experience to write such a plan?

(b) Does the plan achieve the intended purpose?

(c) Does the plan comply with government, departmental or accepted policies or codes or practice for wildlife management?

(d) Does the plan comply with the requirements of the Act and other applicable acts and regulations?

(e) Does the plan address the conditions, limitations and restrictions that should be placed on the activities for which authorisation is sought?

In the present case, it is not in dispute that the kangaroo management plan was a recognised wildlife management plan. As a result, when considering the grant of the authorisation, Ms Vij was entitled to be satisfied, as she was, that the authorisation sought related to a recognised wildlife management plan.

What is the nature of the discretion conferred by s 28A(1) on the Secretary?

Section 28A(1) of the Act provides ‘that the Secretary may give written authorisation’.[40]
[40]Emphasis added.

The plaintiff contended that the discretion was narrow, and that the relevant considerations were confined to the purposes set out in s 1A of the Act. The Secretary contended that the discretion was broad. The Secretary had a wide degree of decisional freedom, and could refuse to exercise the discretion in a variety of circumstances. It was submitted that those circumstances included where new evidence had come to light casting doubt on the recommendations of the wildlife management plan, or where the Secretary had additional material suggesting that another option was feasible or preferable to the option recommended in the plan. Ultimately, it was said, that it is a matter for the Secretary to determine whether to issue the authorisation, to issue it subject to conditions, or to refuse to issue the authorisation.

The factors a decision maker is bound to consider, or is entitled to consider, is authoritatively resolved in accordance with the seminal judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, where his Honour said:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.[41]

[41](1986) 162 CLR 24, 39–40 (citations omitted).

In the present case, the relevant considerations for the Secretary to consider in an application for an authorisation include:

(a) the purposes and provisions of the Act;

(b) the information in the application for authorisation;

(c) documentation submitted with the application for authorisation;

(d) the recognised wildlife management plan and its contents;

(e) any relevant laws, policies and codes of practice;

(f) conditions which have or might be proposed for inclusion in the authorisation;

(g) the duration and extent of any authorisation;

(h) the persons who are to be permitted to act under the authorisation; and

(i) the operational plan intended to implement the recognised wildlife management plan.

As a delegate of the Secretary, these were all matters relevant to the decision to be made by Ms Vij.

Grounds of appeal

Before turning to the individual grounds relied on by the plaintiff, it should be noted that no issue as to the Secretary’s power to delegate to Ms Vij arose. The plaintiff conceded that Ms Vij acted as an authorised delegate of the Secretary when she granted the authorisation under s 28A(1) of the Act. The Secretary’s power to delegate any powers, functions or duties under the Act is conferred under another enactment.[42]
[42]Conservation Forests and Lands Act 1987 (Vic) s 11(2).

Ground 1 – jurisdictional error

The first ground relied on the by plaintiff stated:

[The Secretary] fell into jurisdictional error by making a finding, that was unreasonable, illogical and/or irrational, and/or for which there was no evidence.
Particulars
a. [abandoned]
b.The [decision] was to approve a kangaroo management plan that was two years old and based on outdated data, information and/or statistics.
c.The [Secretary’s decision] was made on the basis of the [Secretary, DEDJTR’s] desire to sell the land.

The plaintiff submitted that Ms Vij fell into jurisdictional error when she decided to grant the authorisation because:

(a) her finding was unreasonable, illogical, irrational and was not based on evidence;[43]

(b) there was an inconsistency in the decision that a cull was necessary for all of the kangaroos under scenario 1 of the kangaroo management plan, but under scenario 2 some of the kangaroos could be retained; and

(c) DEDJTR’s desire to sell the land was an irrelevant consideration.

[43]Citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 348 [23] (French CJ).

The Secretary submitted that the decision to grant the authorisation was not unreasonable, illogical or irrational, and was based on the evidence before the decision maker. Further, the decision maker applied the correct legal test under s 28A(1)(h), and was satisfied that the authorisation was necessary to support the recognised wildlife management plan. The decision was based on the evidence available to the decision maker.

I accept the submission made by the Secretary. I also accept the evidence given by Ms Vij as to how she made the decision to grant the authorisation.[44] When she made the decision to grant the authorisation, Ms Vij had a significant range of information and expert material before her which supported the decision. The material included:
[44]See above [44]–[50].

(a) the information provided in the application;

(b) the unanimous recommendations of the panel made in 2012 and again in 2017;

(c) expert advice that non-lethal options were not supported;

(d) advice that a cull was agreed as the most appropriate action by DEDJTR, DELWP, Ecology Australia and RSPCA;

(e) the information and recommendations in the kangaroo management plan and its predecessors;

(f) monthly monitoring reports since 2010 as to the welfare of the kangaroos, density, green biomass available, parasite loads, disease prevalence and mortality rates;

(g) the strategy report which considered kangaroo management in growth areas generally; and

(h) the departmental translocation of wildlife policy.

In SZMDS, Crennan and Bell JJ said:

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision …

I reject the submission that Ms Vij’s decision was unreasonable, illogical or irrational, or that there was no evidence that supported the decision. The contrary is the case. All, or virtually all, of the evidence before her supported the grant of an authorisation. She had no evidence to the contrary. There is nothing unreasonable, illogical, or irrational in accepting and acting on the information and advice that Ms Vij had.

I accept Ms Vij’s evidence that she made the decision on 25 July 2017, and not before. Whilst she was progressing through the decision making process over the period from February to July 2017 and may have been favourably disposed towards the grant of an authorisation, there is good reason to accept her evidence that she did not made any final decision until 25 July 2017. It was only on 25 July 2017 that her superior endorsed the kangaroo management plan as a recognised wildlife management plan. It is highly unlikely that Ms Vij would have acted under s 28A(1)(h) before her superior in DELWP had endorsed the kangaroo management plan as a recognised wildlife management plan.

I accept the Secretary’s submission that Ms Vij had to be satisfied that the authorisation was necessary to support a recognised wildlife management plan. She made the decision that the grant of an authorisation was necessary to support the plan. The evidence shows that she was conscious of her function and role, and familiar with the requirements of the power that she was called on to exercise.

The particulars provided under ground 1 are not made out. While the kangaroo management plan was drafted in 2015, it was contemporaneously reviewed and scrutinised at the time of the decision, including by the panel. It had a number of predecessors and its contents were consistent with other relevant studies and field work. In large measure, the 2017 plan followed the recommendations of the panel first given in 2012.

The kangaroo management plan was prepared by Ecology Australia and considered both the sale and retention of the site as scenarios. Both options were possibilities, with sale considered as the more likely option at the time. There is nothing wrong or inappropriate in providing in a wildlife management plan for possible alternative futures of the land on which the wildlife population is to be found. Indeed, unless this is done, the wildlife management plan might be found to have little or no relevance to the situation and circumstances that actually eventuate.

There is no inconsistency between scenarios 1 and 2. The recommendations for scenario 1 address what should be done if the site is sold for development within 12 months. The recommendations for scenario 2 address what should be done if the site is retained for a longer period. While a greater degree of in-situ management is possible in scenario 2, a very substantial cull of kangaroos is contemplated with only 43 kangaroos remaining. In this respect, it is not very different from scenario 1.

Ground 1 is not sustained.

Ground 2 – objective evidence supporting the preconditions found in s 28A

Ground 2 stated:

A pre-condition to the [Secretary] exercising their power under section 28A to grant an authorisation is that there is objective evidence of one of the seven pre-conditions in sub-sections (1)(c)-(i). The [Secretary] fell into jurisdictional error as it cannot be objectively determined that the wildlife were ‘sick, injured or orphaned’ (sub-section (f) or there was a risk to the health or safety of any person or class of persons (sub-section (g)).
Particulars
The statistics in the [kangaroo management plan] or the monthly reports discovered by the [defendants] do not support an objective finding of fact that the Epping Market kangaroos were sick, injured or orphaned’ or that there was a risk of health and safety to any person or class of person.

Ground 2 presupposes that the Secretary relied on s 28A(1)(f) or (g). The Secretary did not rely on either sub-section, but on s 28A(1)(h), which required the Secretary to be satisfied that the authorisation is necessary to support a recognised kangaroo management plan, as she was. Ground 2 is not sustained.

Ground 3 – wrong legal test applied

Ground 3 stated:

The delegate of the [Secretary] failed to discharge her duty under section 28A of the Act when she applied the wrong legal test. Further the delegate of the [Secretary’s] decision was unreasonable, illogical and/or irrational as she concluded that a complete cull was necessary was that in situ retention of some of the kangaroos was possible. The delegate therefore failed to apply the correct legal test and failed to reach a state of satisfaction that the complete cull of the kangaroos was necessary.
Particulars
a.The delegate of the [Secretary] erred when she asked whether the authorisation was necessary in order to enable the proposed cull of the kangaroos as detailed in the [kangaroo management plan] to be carried out.
b.Section 28A requires a decision make to ask whether the action permitted by the authorisation is necessary. The delegate failed to enquire as to whether the cull of the kangaroos was necessary.
c.Further and/or in the alternative, the delegate failed to determine that the cull was necessary as she concluded that both Scenario 1 (cull) and Scenario 2 (in situ retention) were viable.

Much of this ground has already been dealt with under ground 1. It was admitted that the kangaroo management plan was a recognised wildlife management plan. I accept that Ms Vij applied the correct legal test. While she had an overall discretion as to whether an authorisation should be granted, she was satisfied that the authorisation was necessary to support that plan. I have already accepted that her decision to grant an authorisation was not unreasonable, illegal or irrational, but was well founded on the evidence and advice that she had. There is nothing wrong or inconsistent about a wildlife management plan making different recommendations for alternative future events occurring in different time frames.

It can hardly be doubted that it was open to Ms Vij to conclude that the authorisation was necessary to support the kangaroo management plan. Without an authorisation, the kangaroo management plan would be frustrated and rendered nugatory. Without the authorisation, the plan could not be implemented and it would be unlawful to destroy or handle any kangaroos. Scenario 1 could not be implemented at all, whilst no culling would be permissible in scenario 2.

Application of the Walker test, being whether the authorisation was reasonably required to support the kangaroo management plan, is answered in the affirmative. Grant of an authorisation was a legal requirement and a practical necessity if the kangaroo management plan was to proceed.

Even if the most stringent test of necessity is applied, the same result obtains. Grant of an authorisation was absolutely necessary, or indispensable, if the kangaroo management plan was to be supported. The issue of which test of necessity to be adopted in applying s 28A(1)(h) does not matter in the present circumstances. On any test, it was open to Ms Vij to be satisfied that an authorisation was necessary to support the kangaroo management plan.

Ground 3 fails.

Ground 4 – Ms Vij failed to discharge her duty under s 28A

Ground 4 states:

The delegate of [the Secretary] failed to discharge her duty under section 28A of the Wildlife Act 1975 (Vic) when she failed to consider and/or inquire into non-lethal options of kangaroo management, specifically translocation.
Particulars
a.In reaching a state of satisfaction that a particular action is necessary, section 28A requires a decision maker to consider and reject alternative methods of control.

b. The delegate of the [Secretary] failed to consider translocation.
c.The delegate failed to take into consideration more recent and successful trials of kangaroo translocation in Australia.

Ground 4 is incorrect in fact. Non-lethal options were considered and not recommended in the kangaroo management plan. Ms Vij did consider non-lethal options of kangaroo management, including translocation. However, they were not recommended by the panel in its 2012 or 2017 recommendations. Ms Vij was aware of the DELWP’s policy on translocation of wildlife. She was also aware of the practical difficulties, cost and animal welfare issues associated with non-lethal options.

Ground 4 fails.

Ground 5 – Ms Vij relied on an irrelevant consideration

Ground 5 states:

The delegate of the [Secretary] failed to discharge her duty under section 28A of the Wildlife Act 1975 (Vic) as she relied on an irrelevant consideration, specifically the impetus to develop and/or sell the land on which the kangaroos are situated. In the alternative, the [decision] to approve the [kangaroo management plan] in order to facilitate [DEDJTR’s] sale of the land was unreasonable and/or illogical and/or irrational.
Particulars
a.        The [Secretary’s decision] of 25 July 2017 was to approve the approach of management recommended by the [kangaroo management plan].
b.        In respect of the [eastern half of the site] it was recommended that the kangaroos the subject of this proceeding be shot so that the [site] could be developed with ease, and without a significant encumbrance on the title…
c.        The [Secretary] relied on an irrelevant consideration in making the [decision], namely the desire to develop the site without the encumbrance of kangaroos, and the ease and/or commercial desirability of a cull for the purpose of the sale of the [site].

Ms Vij was not the author of the kangaroo management plan. She was called on to decide whether she was satisfied that the grant of an authorisation was necessary to support the plan. She reviewed the plan, which addressed the future in alternative scenarios. One scenario envisaged the sale of the site within 12 months. The other did not. While she recognised that the presence of a substantial mob of kangaroos on the site was a significant encumbrance to its sale and development, she said in evidence that it was not a consideration factored into her decision. Rather, actual kangaroo management was a matter for DEDJTR. There is no reason to doubt her evidence.

I have previously concluded that there was nothing unreasonable, illogical or irrational about the decision that Ms Vij took. It was a decision based on the information and expert advice available to her. She was informed that a number of organisations and the consultants managing the site monitoring program all joined in the recommendations made to her. She was entitled to adopt those recommendations.

Ground 5 also fails.

Exercise of discretion to grant relief

The defendants submitted on the basis of an affidavit by their solicitor that even if I were minded to uphold one or more grounds, in the exercise of my discretion I should not grant relief. The plaintiff resisted this submission.

In the event, the grounds all fail. It is unnecessary for me to consider whether if one or more grounds had succeeded it would have been appropriate to grant relief.

Conclusion

The authorisation granted on 25 July 2017 was cancelled on 8 May 2018. It has no continuing legal existence or effect. The eastern grey kangaroo population on the site remains under the protection of the Act unless and until an authorisation is granted. Whether an authorisation will be granted in the future is a matter for the Secretary to decide if and when an application made under the Act.

The grounds relied on in the proceeding fail and the proceeding must be dismissed.

[2018] VSC 407

27 July 2018