Cavaleri v Department of Trade and Investment, Regional Infrastructure and Services

[2013] NSWADT 191

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Cavaleri v Department of Trade and Investment, Regional Infrastructure and Services [2013] NSWADT 191
Hearing dates:	1 February 2013
Decision date:	23 August 2013
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	The Tribunal affirms the decision to refuse Mr Cavaleri a licence to keep crab-eating macaques.
Catchwords:	Non-Indigenous Animals - refusal of keepers licence - new Regulation made after commencement of application to review - whether the law at the time of the original decision or that in effect now applies - whether Regulation ultra vires of Act
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Animal Research Act 1985 Exhibited Animals Protection Act 1986 Interpretation Act 1987 Non-Indigenous Animals Act 1987 Non-Indigenous Animals Amendment Act 1996 Non-Indigenous Animals Regulation 1997 Non-Indigenous Animals Regulation 2006 Non-Indigenous Animals Regulation 2012
Cases Cited:	Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485; 76 ALJR 1502; 117 IR 52; 192 ALR 129 Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 Azevedo v Secretary, Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683; (1992) 15 Aar 213; (1992) 35 FCR 284; (1992) 26 ALD 567 Esber v Commonwealth(1991) 164 CLR 430 Director of Public Works v Ho Po Sang [1961] AC 901 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Duncan v Commissioner of Fair Trading [2008] NSWADT 212 Hicks v Aboriginal Legal Service of Western Australia (2001)185 ALR 689 Kharbanda v Ministry of Transport (No. 2) [2008] NSWADT 203 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 Robertson v City of Nunawading [1973] VR 816 Shanahan v Scott (1957) 96 CLR 245 Sunol v Collier [2012] NSWCA 14 Tan v Commissioner of Police [2003] NSWADT 224
Category:	Principal judgment
Parties:	John Cavaleri (Applicant) Department of Trade and Investment, Regional Infrastructure and Services (Respondent)
Representation:	Counsel J Hatzistergos (Applicant) JSM Lawyers (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	123063

reasons for decision

Introduction

1. This is an application to review a decision made on internal review by the Department of Trade and Investment, Regional Infrastructure and Services (the Agency) on 9 March 2012 to refuse Mr Cavaleri a licence to keep crab-eating macaques. Such a licence is required under the Non-Indigenous Animals Act 1987 (the NIAA). Crab-eating macaques are a Category 3(a) animal for the purpose of that Act.

1. The application for review of that decision was made to the Tribunal on 16 March 2012.

1. At the time Mr Cavaleri made his application he held a current licence under the NIAA to keep rhesus macaques. Rhesus macaques are Category 2 animals for the purposes of the Act. While licenced to do so, he was no longer keeping rhesus macaques at the time of the hearing.

The Legislation

1. An application for a licence under the NIAA is made under s 14. Section 15 is concerned with the grant of licence and provides -

(1) The Director-General may grant, and from time to time renew, a licence authorising the holder to keep such animals as may be specified in the licence.

(2) In considering whether to grant a licence or renewal, the Director-General shall have regard to:

(a) the premises, vehicle or other accommodation intended to be provided as the licensed accommodation for the animals proposed to be kept,

(b) the number of animals kept or proposed to be kept,

(c) the capacity of the applicant for the licence to care for the animals, taking into account any previous experience of the applicant in caring for animals of that or a similar species,

(d) the character of the applicant, taking into account any conviction of the applicant, known to the Director-General, for an offence under:

(i) this Act,

(ii) the Prevention of Cruelty to Animals Act 1979, or

(iii) any other law (whether of the State or of the Commonwealth or another State or Territory of the Commonwealth) relating to the keeping or protection of animals,

(e) the listing of the animals under the Australian Species Management Scheme operated by the Association of Zoo Directors of Australia and New Zealand or any prescribed scheme relating to the management of animal species,

(f) any law in force relating to quarantine, and

(g) any prescribed matter.

(3) In considering whether to grant or renew a licence, the Director-General may employ a higher or lower standard in relation to the criteria set out in subsection (2), depending on the prescribed category of the animals intended to be kept under the authority of the licence or renewed licence.

(4) If the Director-General decides not to grant or renew a licence, notice shall, as soon as practicable after the decision is made, be given to the applicant or licensee stating the reason.

1. Section 6 of the NIAA provides for the classification of animals for the purpose of the regulation, and their categorisation into controlled categories by risk. It provides -

For the purposes of this Act, the regulations may from time to time:

(a) prescribe categories of animals, and

(b) identify any such prescribed categories as controlled categories, and

(c) identify any such controlled categories as either higher-risk or lower-risk categories, and

(d) classify animals, by species, as belonging to any prescribed category.

1. Section 6A specifies that basis for such categorisation.

(1) Classification of animals under section 6 is to be based on:

(a) the animal's pest potential with respect to agricultural and pastoral interests and the environment, and

(b) any danger posed by the animal to humans, and

(c) security requirements for keeping or transporting the animal, and

(d) the degree to which the animal, if actually or potentially a pest, is already established, and

(e) any other factors identified by the regulations.

(2) In recommending the making of a regulation for the purposes of section 6, the Minister is to have regard to any scheme of classification currently used by the National Vertebrate Pests Committee of the Standing Committee on Agriculture and Resource Management or by any other persons or bodies prescribed for the purposes of this subsection.

(3) Before recommending the making of a regulation for the purposes of this section in relation to any birds, the Minister is to consult any persons or bodies prescribed for the purposes of this subsection.

1. The regulation making power is found in s 29 of the Act. It provides -

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting the generality of subsection (1), regulations may be made for or with respect to:

(a) standards of housing, fencing, caging and security of animals,

(b) standards of husbandry and hygiene for the keeping of animals,

(c) licences and permits, including their transfer,

(d) applications and information to be made or supplied under this Act,

(e) the seizure and relocation of animals, and

(f) records to be kept by licensees or other persons.

(3) A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.

(4) A provision of a regulation may:

(a) apply generally or be limited in its application by reference to specified exceptions or factors,

(b) apply differently according to different factors of a specified kind, or

(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,

or may do any combination of those things.

1. At the time the internal review decision was made on 9 March 2012 and when Mr Cavaleri applied for review of the decision to the Tribunal on 16 March 2012, the Non-Indigenous Animals Regulation 2006 (the 2006 Regulation) was the applicable regulation under the Act. Clause 4 prescribed categories for the purposes of s 6. It provided -

(1) The following categories of animals are prescribed for the purposes of section 6 (a) of the Act:

(a) category 1a and category 1b (animals the importation and keeping of which are prohibited),

(b) category 2 (animals limited to restricted collections),

(c) category 3a and category 3b (animals permitted in other collections),

(d) category 4 (animals the importation and keeping of which are not restricted),

(e) category 5 (animals that are already widespread pests).

(2) Categories 1a, 1b, 2, 3a and 3b are identified as controlled categories for the purposes of section 6 (b) of the Act.

(3) Categories 1a, 1b, 2 and 3a are identified as higher-risk categories for the purposes of section 6 (c) of the Act.

(4) Category 3b is identified as a lower-risk category for the purposes of section 6 (c) of the Act.

1. By clause 6 and Schedule 1 of the 2006 Regulation crab-eating macaques were categorised in category 3(a).

1. Clause 18 of the 2006 Regulation prescribed additional matters that the decision maker was to have regard to when considering whether to grant a licence under s 15. It provided -

(1) In considering whether to grant a licence or renewal, the Director-General must have regard to the following matters:

(a) the security and care required for the animals that are to be kept or are kept under the licence,

(b) whether the number of licences in force that relate to certain species of animals should be restricted and, if it should be restricted, whether the grant of the licence or its renewal would violate that restriction,

(c) in the case of a licence for an agent of a zoo to keep a category 3a animal, whether there is a written agreement between the agent and the institution that transfers the animal to the agent and whether the agreement contains a requirement that the agent must transfer the animal back to the institution on demand,

(d) in the case of a licence or renewal of a licence to keep an animal of the Order Primates, or Funambulus pennantii (commonly known as the Northern Palm-squirrel):

(i) the life expectancy of the animal, and

(ii) the specialised care requirements of the animal, and

(iii) the general welfare of the animal.

(2) In considering whether to grant a renewal of a licence, the Director-General must also have regard to whether the licensee has had an animal of the species to which the application relates in the licensee's keeping at any time during the immediately preceding 12 months.

1. The 2006 Regulation was repealed and replaced the Non-Indigenous Animals Regulation 2012 (the 2012 Regulation) that commenced on 1 September 2012, after Mr Cavaleri had filed his review application with the Tribunal.

1. The 2012 Regulation contains significantly different provisions to those in the 2006 Regulation. Crab-eating macaques continue to be categorised as category 3(a) animals: clause 6 and Schedule 1. Clause 4, however, made different provisions with respect to the categories. It provides -

(1) The following categories of non-indigenous animals are prescribed for the purposes of section 6 (a) of the Act:

(a) category 1a (animals of extreme pest potential, the importation and keeping of which is generally not permitted),

(b) category 1b (animals that have not been classified as belonging to any particular category, the importation and keeping of which is generally not permitted),

(c) category 2 (animals that pose an extreme or more serious threat to the environment, agriculture or persons, and that are restricted to being kept in licensed animal display establishments or by:

(i) a corporation that is accredited as a research establishment under section 20 of the Animal Research Act1985 , or

(ii) an individual who holds an animal research authority issued under section 25 of the Animal Research Act1985 , or

(iii) a person who holds an animal supplier's licence issued under section 39 of the Animal Research Act1985 ),

(d) category 3a (animals that pose a less serious or moderate threat to the environment, agriculture or persons, and that are restricted to being kept in licensed animal display establishments or by:

(i) a corporation that is accredited as a research establishment under section 20 of the Animal Research Act1985 , or

(ii) an individual who holds an animal research authority issued under section 25 of the Animal Research Act1985 , or

(iii) a person who holds an animal supplier's licence issued under section 39 of the Animal Research Act1985 ),

(e) category 3b (animals that have the potential to establish in the wild a population that would present a new threat to the environment, agriculture or persons or aggravate an existing threat and that may only be kept under licence),

(f) category 4 (animals that would be unlikely to present a threat to the environment, agriculture or persons or greatly worsen an existing threat if they escaped into the wild, the importation and keeping of which are not restricted),

(g) category 5 (animals that are already widespread pests and which, if they escaped into the wild, would be unlikely to greatly worsen an existing threat).

(2) Categories 1a, 1b, 2, 3a and 3b are identified as controlled categories for the purposes of section 6 (b) of the Act.

(3) Categories 1a, 1b, 2 and 3a are identified as higher-risk categories for the purposes of section 6 (c) of the Act.

(4) Category 3b is identified as a lower-risk category for the purposes of section 6 (c) of the Act.

(5) In this clause:

"licensed animal display establishment" has the same meaning as in the ExhibitedAnimals Protection Act 1986 .

1. Clause 25 of the 2012 Regulation prescribed additional matters that the decision maker was to have regard to when considering whether to grant a licence under s 15. It provides -

(1) For the purposes of section 15 (2) (g) of the Act, the following matters are prescribed as additional matters to which the Director-General must have regard in deciding whether to grant a licence or renewal:

(a) the life expectancy of any animal that is to be kept under the licence,

(b) the specialised care requirements of any animal that is to be kept under the licence,

(c) the general welfare of any animal that is to be kept under the licence,

(d) the security and care required for the animal that is to be kept under the licence,

(e) whether the number of licences in force that relate to certain species of animals should be restricted and, if it should be restricted, whether the grant of the licence or its renewal would violate that restriction,

(f) in the case of a licence to keep a higher-risk category animal where the applicant is an agent of the holder of a licence under the Exhibited Animals Protection Act 1986 :

(i) whether there is a written agreement between the agent and the institution that transfers the animal to the agent, and

(ii) whether the agreement contains a requirement that the agent must transfer the animal back to the institution on demand,

(g) in the case of an application for a licence to keep any higher-risk category animal:

(i) whether the applicant, immediately before 1 September 2012, held a licence under the Non-Indigenous Animals Act 1987 in relation to a higher-risk category animal, and

(ii) whether the applicant is accredited as a research establishment under the Animal Research Act 1985,

(h) whether the applicant is a party to a written lease agreement or other formal written arrangement with the owner of the licensed accommodation that provides the licensee with the following rights:

(i) the right to use the premises as accommodation for the animal kept under the authority of the licence,

(ii) the right to do anything on the premises that may be required under the Non-Indigenous Animals Act 1987 or this Regulation in relation to the use of the premises as licensed accommodation,

(iii) the right to invite authorised officers on to the premises,

(i) whether the applicant has made a statement or furnished information in connection with the application, or any previous application under section 14 of the Non-Indigenous Animals Act 1987 , that was, in the opinion of the Director-General, false or misleading,

(j) whether the applicant resides in New South Wales or has a registered office in New South Wales,

(k) whether the applicant has previously held a licence that has been cancelled,

(l) whether the applicant has been convicted of an offence under:

(i) the Non-Indigenous Animals Act 1987 (including any regulations under that Act), or

(ii) the Prevention of Cruelty to Animals Act 1979 (including any regulations under that Act), or

(iii) any other law (whether of the State or of the Commonwealth or of another State or Territory) relating to the keeping or protection of animals.

(2) In deciding whether to grant a renewal of a licence, the Director-General must also have regard to the following:

(a) whether the licensee has had an animal of the species to which the application relates in the licensee's keeping at any time during the immediately preceding 12 months,

(b) whether the licensee has, in the opinion of the Director-General:

(i) failed to comply with a condition of the licence, or

(ii) failed to comply with, or ensure that the licensed accommodation complied with, a requirement or standard prescribed for the purposes of section 15 (2) (g) of the Act.

(3) In deciding whether to grant a licence, in addition to the matters prescribed by subclause (1), the Director-General must have regard to whether the granting of the licence would be in accordance with the categories of non-indigenous animals prescribed by clause 4.

1. Clause 57 of the 2012 Regulation is a saving provision that provides -

Any act, matter or thing that, immediately before the repeal of the Non-Indigenous Animals Regulation 2006, had effect under that Regulation continues to have effect under this Regulation.

Preliminary Issues

1. Before turning to the evidence concerning Mr Cavaleri's licence application and determining whether it should be granted, it is necessary to consider a series of legal issues raised by Mr Cavaleri concerning the statutory criteria that is to be taken into account in reaching that decision. Those issues are:

• Whether the 2006 or 2012 Regulation applies?
• Irrespective of which Regulation applies, whether that regulation is ultra vires of the NIAA, and therefore inapplicable.

Which Regulation applies?

1. Section 63(1) of the ADTA provides -

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

The Tribunal usually determines applications in accordance with the facts, circumstances and law as they exist at the time of the Tribunal's decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. In the present case the Agency submits that the 2012 Regulation should be applied by the Tribunal when considering Mr Cavaleri's application, despite the fact that it was not in operation when Mr Cavaleri lodged his review application with the Tribunal.

1. Neither party contended that the 2012 Regulation has a retrospective operation. It does not purport to have a retrospective effect. Rather, it affects the decision making process when granting licences following commencement. The 2012 Regulations prescribes new circumstances, albeit ones that may have occurred in the past, which govern the granting of licences under the Act after commencement. The 2012 Regulation does not address whether it applies to applications pending before the Tribunal when it commenced operation.

1. Mr Cavaleri submitted that the 2006 Regulation applies in his case, because, when he filed his application for review with the Tribunal, he had an accrued right to have the application determined in accordance with the law as it stood at that time. He relied on section 30 of the Interpretation Act 1987 which relevantly provides-

(1) The amendment or repeal of an Act or statutory rule does not:

(a) ...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) ...

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

1. The Agency took issue with this submission arguing that, because Mr Cavaleri had never held a licence to keep crab-eating macaques, he had a mere hope or expectation with respect to his licence application. This was not an accrued right for the purposes of s 30(1)(a)(c)of the Interpretation Act 1987.

1. The issue of whether or not an applicant for merits review has an accrued right to have the application determined in accordance with the law as it stood at the time he or she made the application for review is problematic. Esber v Commonwealth(1991) 164 CLR 430 concerned an appeal to the Commonwealth AAT against a refusal by the Commissioner for Employees' Compensation to redeem a weekly payments entitlement under s 49 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). After Mr Esber had made his redemption application, but before the AAT heard it, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The AAT found that the provisions of the 1971 Act applied, and ultimately ordered a significant redemption in Mr Esber's favour.

1. The Commonwealth appealed to a Full Bench of the Federal Court which held that the 1998 Act applied.

1. On appeal to the High Court the majority (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) reversed that decision and held that the 1971 Act applied. The Court relied on specific transitional provisions in the legislation, but also considered the application of s 8(c) of Acts Interpretation Act 1901 (Cth) which is in similar terms to s 30(1)(c) of the Interpretation Act 1987.

1. The majority (at ALR 582) said that the first step was to determine what, if any, right had been acquired or accrued. Two such rights were identified by Mr Esber. First a right to redemption, and secondly, a right to have the Tribunal determine his application for review. With respect to the latter, the majority said (at ALR 582):

"Once the appellant lodged an application to the tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal. It was not merely "a power to take advantage of an enactment" Mathieson v Burton (1971) 24 CLR 1, per Gibbs J at 23; and see Robertson v City of Nunawading [1973] VR 81. Nor was it a mere matter of procedure(See Newell v R (1936) 55 CLR 707, at 711-12); it was a substantive right(see, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, at 175, 178, 185, 194; Colonial Sugar Refinery Co v Irving [1905] AC 369, at 372-3) Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent"Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at 552; see also Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422, at 426-7; Director of Public Works v Ho Po Sang [1961] AC 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."

1. In contrast to an accrued right, a mere hope or expectation that a right will be created does not amount to a right which will be protected: Director of Public Works v Ho Po Sang [1961] AC 901. In that case a lessee of Hong Kong premises had applied for a rebuilding certificate. The applicable ordinance provided that, if the Director of Public Works gave the certificate, the lessee could call upon the tenants to quit occupation. The Director gave notice of his intention to issue a certificate, but before he did so the tenants appealed. While the appeal process was pending the ordinance was amended by removing the lessee's right to require the tenants to quit. The Privy Council (Lord Denning, Lord Morris of Borth-y-Gest and the Right Honourable LMD De Silva) held that the lessee had not had a right to a certificate under the repealed legislation, because when the appeals were lodged no one knew what the result would be. It was not a matter for the Director. At the time of the amendment, the lessee had only a hope or expectation that he would receive a certificate, but no accrued right. The Privy Council said, at 922,

"... there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not."

1. In Robertson v City of Nunawading [1973] VR 816 Winneke CJ, Gowans and Starke JJ said at 826 that if:

"...the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute."

There a Local Council, considering a sub-division application, had requested payment of a fee that had not been payable when the application was lodged, but became payable as a result of a subsequent amendment. The Full Court found that the fee was payable.

1. A similar conclusion was reached in by the Full Court of the Federal Court in Hicks v Aboriginal Legal Service of Western Australia (2001)185 ALR 689 where the issue concerned a refusal to grant legal aid to a native title group, where an amendment to the Native Title Act 1993 (Cth), made after the application, deprived the ALS of its former status as a representative body under that Act. The Court found that, at 701:

"...the application made to the ALS was neither the initiation of something in the nature of a cause of action nor an investigation in respect of a right, but instead began an investigation to decide whether some right should or should not be given or involved procedural steps under a statute to decide if a benefit should be granted by an administrative authority, it follows that s 8 of the Acts Interpretation Act did not keep alive after 30 June 2000 the application made to the ALS for the benefit of the group."

1. In this Tribunal similar conclusions have been reached in matters involving applications for a the grant or renewal of occupational licences following amendments to the Property Stock and Business Agents Act 2002 (Duncan v Commissioner of Fair Trading [2008] NSWADT 212) and the Security Industry Act 1997 (Tan v Commissioner of Police [2003] NSWADT 224). In both cases it was found that the applicant for an occupational licence did not have an accrued right, but a mere hope or expectation that a right would be created.

1. Mr Cavaleri however, argues that the Tribunal is bound to follow the decision in Esber, as it did in the matter of Kharbanda v Ministry of Transport (No. 2) [2008] NSWADT 203. That was an occupational licensing case in which the Tribunal followed Esber, by applying the Regulation in existence when the review application was made, rather than that in existence at the time of the Tribunal's hearing. Pearson JM considered that Esber applied because, "The applicant had lodged his application to the Tribunal for review before the law changed ..."

1. The Agency submits that Mr Cavaleri's case can be distinguished from Esber, because the decision in Esber was reached on the construction given to the transitional provisions in that case. It argues that the majority's statement with respect to accrued rights is obiter. In response Mr Cavaleri pointed out that the majority has specifically said that the accrued rights ground, at 438, "should be dealt with."

1. Esber was considered by the High Court in Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485; 76 ALJR 1502; 117 IR 52; 192 ALR 129. In that case the majority (Gaudron, McHugh, Gummow and Hayne JJ at 50) pointed out that the Court was dealing with what was said to be an accrued right to arbitration given by earlier legislation. This was of a "different nature" to the right to review a redemption decision under earlier regulations in Esber. The Court concluded that that the new legislation revealed an intention that it apply to existing proceedings, with the result being determined accordingly. It did so without applying Esber, which it had not been asked to reopen.

1. In the course of his concurring judgment Kirby J, with respect to an argument that that conclusion was at odds with Esber, said -

To the submission that the foregoing approach to the meaning of s 111AAA of the Act is inconsistent with that taken by this Court in Esber, I would point out, on the contrary, that the joint reasons in Esber first addressed themselves to the construction of the legislation there in question The ratio decidendi of the majority reasons in Esber rests on the construction that their Honours favoured concerning Mr Esber's entitlement to redemption under the transitional provisions that were there applicable. That their Honours' construction of those provisions was the true foundation of their decision is put beyond doubt by what their reasons say. Having completed their analysis of the meaning of the applicable provisions, the majority state:

"This conclusion is enough to dispose of the appeal in favour of the appellant. But the alternative ground [that the entitlement to redemption was preserved by s 8 of the Interpretation Act] was fully argued and should be dealt with ... [I]t lends strong support for the construction of [the Act] already reached."

There is, accordingly, no doubt that the remarks of this Court in Esber, as to the operation of s 8 of the Interpretation Act, were obiter dicta. They were unnecessary to the result reached by the majority. In effect, the majority in Esber joined issue with Brennan J, in dissent, concerning the construction of the amending legislation. Accordingly, as a matter of binding authority, that is the limited point for which Esber stands. As a matter of law, there is nothing in Esber that obliges the conclusion of the present proceedings as favoured by the Full Court. On the contrary, the reasoning of all members of this Court in Esber began in the correct place, namely, with the construction of the contested statutory provisions.

1. A similar view was expressed by the Court of Appeal in Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261. Spigelman CJ, with whom Tobias JA agreed, described Esber as "problematic" and said -

That case did not involve expressly retrospective legislation and is probably best explained as turning on the interpretation of the transitional provisions in the Act. (See Dai Xing Yao v Minister for Immigration and Ethnic Affairs [1996] FCA 1792; (1996) 46 ALD 273 at 279; Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 esp at 504, 528.)

1. A reading of the decision in Esber as a whole is consistent with the view that the proposition there advanced by the majority, with respect to the Mr Esber's accrued right to have his review of the redemption decision made with regard to the law as it was at the time of filing, is obiter for the reasons advanced by Kirby J in Attorney-General (Qld) v Australian Industrial Relations Commission.

1. It is I think important to note that before Esber was decided the NSW Court of Appeal decided New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685. On 26 April 1984, the New South Wales Aboriginal Land Council made application to the Minister in respect of claimable western crown lands under the Aboriginal Land Rights Act 1983. The claim was refused on 8 November 1984. On 21 December 1984 the Land Council appealed to the Land and Environment Court. On 2 May 1986 the Aboriginal Land Rights Act was amended so that any transfer of lands to which the Western Lands Act 1901 applied would be by way of "a lease in perpetuity under that Act," rather than as "an estate in fee simple."

1. On 3 September 1987 the Minister decided to approve the claim, but proposed to affect the transfer by way of a lease in perpetuity under the Western Lands Act 1901. The Land Council filed an unsuccessful appeal to the Land and Environment Court. From there they appealed to the Court of Appeal. In his judgment Hope JA (at 687) described the scheme of the Act and noted that it required certain conditions to be satisfied before a claim could be granted - whether the lands were claimable Crown lands when the claim was made and whether they were required for an essential purpose. If those conditions were satisfied the Act required that the claim be granted.

1. Hope JA observed with respect to the Minister's function that (at 691):

'...He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim.

The nature of his inquiry was not affected by the circumstance that the resolution of the question might be difficult or might involve questions of judgment. Thus the nature of the question whether the land is likely to be needed for an essential public purpose as at the date of the claim is a question of fact, even though different persons may arrive at different conclusions. This is in no way different to a decision which a court may have to make as to whether a defendant in an action for damages was negligent, or whether an applicant in a Workers' Compensation application has suffered an injury arising out of his employment. If the conditions were in truth satisfied at the time the claim was made the investigation of them by the Minister and his satisfaction in respect of them would be no different in substance from an investigation by a court as to whether facts existed at some prior date giving rise to a right in a party making a claim to that right before it. The Minister might make a wrong decision, but no question of discretion would be involved."

In determining an appeal from the Minister the Land and Environment Court was similarly constrained. The fact the Act provided that after hearing the appeal the Court may order the transfer of the lands did not mean that the Court had a discretion (at 692):

"At first sight the word "may" in relation to what the court is to do if the Minister fails to discharge the onus upon him may suggest that the court has a discretion. Despite the Interpretation Act 1897, s 23, I do not think that this is so. In my opinion the word "may" merely means that the court, which would not otherwise have the power so to do, is empowered to order the transfer of the land to the claimant. Nothing in the section or in any other part of the Act points to any area of discretion to be exercised by the court or to the matters which would be relevant to the exercise of such a discretion if there were one."

1. The importance, when considering with "accrued right's", of whether one is dealing with an inquiry or investigation as to whether given facts exist that give rise to a legal consequence or right, or whether one is dealing with a discretionary decision that might lead to the creation of right, was emphasised by French J in Azevedo v Secretary, Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683; (1992) 15 Aar 213; (1992) 35 FCR 284; (1992) 26 ALD 567. There the Applicant had applied for a boat licence under the Fisheries Act 1952 (Cth) and the northern prawn fisheries plan of management. The relevant criteria had been changed since the filing of the review application. His Honour said, at [40] -

The question whether Mr Azevedo had any accrued right under the Plan at the time he lodged his application requires consideration of the legal consequences attaching to that application. Paragraph 10.4 is of importance in that respect for, subject to para.10.7, if the Secretary is satisfied that an applicant under para.10.2 satisfies a criterion in that paragraph "the Secretary shall cause that application to be granted and the units to be registered as Class A units available for allocation to the persons under this plan or as suspense units". A similar duty is cast upon the Secretary in respect of Class C units by para.18.2. The duty to grant the application and allocate the units does not depend upon any discretion but upon satisfaction of the factual criteria. To apply the distinction made by the Privy Council in Director of Public Works v. Ho Po Sang(1961) AC 901 at 922, the investigation set in train by the application was in respect of a right and not to decide whether or not some right should be given. The relevant right in this case is the allocation of the applicable number of Class A units. The position of the applicant is analogous to that of the Aboriginal Land Council in New South Wales Aboriginal Land Council v. Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act(1988) 14 NSWLR 685. Under the Aboriginal Land Rights Act 1983 (NSW) an Aboriginal Land Council had a right to the transfer of "claimable crown lands" which were defined by reference to criteria of a factual but evaluative character. One such criterion was that the lands were "not needed nor likely to be needed for an essential public purpose". An amendment to the Act having been passed while a claim was pending the question arose whether the claimant had an accrued right protected by the Interpretation Act 1897 (NSW). Holding that it did have such an accrued right, Hope J.A., with whom Samuels and Clark JJ.A. agreed, reviewed the authorities and said at 696:

"These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment."

1. In Duncan v Commissioner of Fair Trading [2008] NSWADT 212 I reached the conclusion that the applicant did not have an accrued right to have his occupational licences renewed, because for him to be re-licensed discretionary considerations relating to fitness and propriety had to be satisfied.

1. In my judgment it is plain from a reading of s 15 of the NNIA that, in order for Mr Cavaleri to be granted a licence to keep crab-eating macaques, he had to satisfy not only factual requirements (experience, security, accommodation) but also has the burden of satisfying the decision maker with respect to discretionary requirements. That with respect to his character (s 15(2)(d)) immediately come to mind. The weight to be given to each of the factors, which the decision maker is to have regard to, is also a discretionary matter. Underlying the exercise of those discretions are important public interest considerations concerning the applicant's suitability as a keeper of primates which pose a real risk to the community unless properly kept.

1. As a consequence, Mr Cavaleri had a mere hope or expectation that the discretions would be exercised in his favour. He does not have an accrued right to have his application determined on review in accordance with the law as it stood when he filed his review application, which is protected and preserved by s 8 of the Interpretation Act 1987. Rather his review application to this Tribunal should be determined in accordance with the law as it now stands.

Is the 2012 Regulation ultra vires of the Act?

1. Mr Cavaleri argued that clause 4(1)(d) of the 2012 Regulation exceeds the regulation making power in the Act in that, with clause 25 (particular sub-clause (2)(e) and (3)), it has the effect of prohibiting individuals from keeping category 3(a) animals. It does so providing that a licence shall not be granted to applicants who:

• would keep them in premises that are not licensed animal display establishments
• are not accredited as a research establishment under the Animal Research Act 1985.

1. As a consequence, Mr Cavaleri argued that those provisions should not be enforced by the Tribunal on the ground that they are invalid, as they are made beyond the regulation making power in the NIAA.

1. Mr Cavaleri relied on Sunol v Collier [2012] NSWCA 14 to demonstrate that the Tribunal was entitled to take such a course, albeit there the invalidity was constitutionally based. Basten JA, who delivered the judgment of the Court, said at [20] -

...a decision of the Tribunal in respect of a particular matter may depend upon a view about the constitutional validity of State legislation, but that opinion is not registered as a judgment, nor is it enforceable as such against any person. If the opinion led the Tribunal to decline to make an order, the unsuccessful party might challenge that result by seeking in the Supreme Court an order in the nature of mandamus, or a declaration as to the constitutional validity of the law sought to be enforced. If the Tribunal makes an order, on the basis that the law was indeed valid, the other party, being unsuccessful, could challenge the order by seeking to have it set aside on the ground that the law, which supported it, was constitutionally invalid. ...

1. Where only part of a Regulation is found to have been made in excess of the Regulation making power, then the whole Regulation is not therefore totally invalid. Section 32 of the Interpretation Act 1987 provides that -

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

1. In order to determine whether or not a Regulation is ultra vires of the NIAA it is necessary to:

• First, consider the scope and objects of the Act with particular reference the words, scope and function of the regulation making power.
• Secondly, discern the scope and meaning of the Regulation.
• Thirdly, it is necessary to determine whether the Regulation is within the scope of the regulation making power.

1. In Shanahan v Scott (1957) 96 CLR 245 at 250 the High Court considered a regulation making power made under the Marketing of Primary Products Act 1935-1953 (Vic) "for all or any purpose (whether general or to meet particular cases) necessary or expedient for the Administration of the Act or for carrying out the objects of the Act ..." Dixon CJ, Williams Webb and Fullagar JJ said -

Powers of this kind have been discussed in more than one case in this Court: see Carbines v Powell (1925) 36 CLR 88; Gibson v Mitchell (1928) 41 CLR 275; Broadcasting Co of Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52; Grech v Bird (1936) 56 CLR 228; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at pp 409, 410.

The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

1. The Court then went on to consider the nature, scope and objects of the Act and how it sought to achieve it objects.

1. In the case of the NIAA the Act does not have an objects or purposes clause, as can be found in more recent legislation. The long title of the Act is -

An Act to control and regulate the introduction into the State of certain species of animals and the movement and keeping of those animals within the State.

1. An examination of the Act reveals that the legislative scheme adopted to achieve those ends is to provide for the classification by regulation of animals into categories and controlled categories in accordance with the risk they pose (s 6). The risk factors on which that categorisation is to be based are set out in s 6A. They are:

• Agricultural and environmental pest potential;
• Danger to humans;
• Security requirements;
• If the animal is a potential pest, the degree to which it is established; and
• Any other factors identified by the Regulation.

1. The Act then provides for the creation of the Non-Indigenous Animals Advisory Committee (s7) to advise with respect categorisation and other matters prescribed or required (s 8).

1. The importation (s10), keeping (s11), or movement (s 12) of animals belonging to a category without an applicable licence or permit is made an offence, punishable by penalties which vary depending on whether the animal is in a higher or lower risk category. Applications for licences are made under s 14, while s 15 sets out the considerations to which regard is to be had when grant a licence. Licences last for 3 years (s 16) and may be unconditional or subject to conditions (s 17). Licences can be cancelled on the grounds specified in s 18. Permits for the importation, movement or transportation of animals may be granted in defined circumstances under s 19.

1. Persons aggrieved by a decision to refuse a licence or permit, or to cancel a licence, have a right to seek review in this Tribunal (s 20).

1. Part 5 of the Act contains general provisions dealing with such things as the power of officers (s 23 to 26), offences and penalty notices (s 27 and 27A), service and the Regulation making power in s 29.

1. The general Regulation making power in s 17(1) is to make regulations, "not inconsistent with the Act with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act." Sub-section (2)(c) confers power to make regulations, "for or with respect to licences and permits, including their transfer." This is complimentary to the requirement of s 15(2)(g) of the Act that, in considering whether to grant a licence regard be had "to any prescribed matter." Section 6 gives a specific regulation making power with respect to prescribed categories of animals, and provides that the Regulations may identify them as controlled categories, and as either higher or lower risk. In addition it authorises animals to be classified by species to prescribed categories.

1. These powers enable the making of Regulations that are ancillary and in aid of the provisions of the Act, but do not authorise the making of regulations which impose new means of carrying out its object not envisaged by the Act.

1. In the present case there is no dispute that the effect of clause 35(3) of the 2012 Regulation, is to require that a decision maker, in determining whether to grant a licence under s 15 of the Act, must have regard to whether the granting of the licence would be in accordance with the categories of non-indigenous animals prescribed by clause 4, in this case 4(1)(d). Because Mr Cavaleri does not propose to keep the animal in a licensed display establishment and as he does not hold a research authority under s 25 of the Animal Research Act 1985, the granting of a licence would not be in accordance with the categories of non-indigenous animals prescribed by clause 4. The effect of this is to deny him and any other individual who does not propose to keep the animal in a licensed display establishment, or who does not hold a research authority under s 25 of the Animal Research Act 1985, the ability to satisfy the requirements of cl 35(3), with cl 4(d).

1. Mr Cavaleri submits that this is beyond the Regulation power in the Act and is inconsistent with the provisions of s 6.

1. As I understand the latter argument, it posits that s 6 does not contain any provision imposing requirements of the sort made by cl 4(d): and does not now and never has authorised the categorisation of animals by limiting who can keep them. Similarly, it is said that's section 15 does not authorise restrictions on who may keep animals of any category. Rather, its provisions address the quality of an applicant's character, experience and capacity to care for the animal concerned, with an allowance for those standards an to vary in accordance with the risk category of the animal concerned. These factors go to the characteristics the legislation requires of applicants, and to which regard may be had when granting a licence. Mr Cavaleri submits that the requirements of cl 4(b) and cl 35(3), that to be eligible to hold a keepers licence with respect to category 3(a) animals the applicant should keep the animal in a licensed display establishment or hold a research authority under s 25 of the Animal Research Act 1985, are inconsistent with and ultra vires of the Act.

1. Mr Cavaleri says that the effect of these provisions is to prohibit private keeper of category 3(a) animals. He argues that this restriction is not a means of regulation envisage by the Act. He says the 2012 Regulation creates a new and different means of regulating the keeping of category 3(a) animals, by regulating who may keep them. This he says is beyond the Regulation making power in the Act.

1. One of the clear objects and purposes of the NIAA is to regulate who can keep non-indigenous animals to which it applies. It does so by means categorising animals according to risk and by prohibiting the keeping of such animal unless licensed to do so. On its face s 6 gives a wide and unqualified power to prescribe categories of animals, to identify them as controlled categories, and to identify the risk attached to those categories. The basis of such classification is set out in s 6A, which itself reserves for the Regulations specific power to identify "any other factors" (s. 6A(1)(e)).

1. While sections 6 and 6A do not make specific provision with respect to the keeping of prescribed categories of animals being confined to certain types of keeper, in my view it is not inconsistent with the objects of the Act and the wording of s 6(a) to prescribe by Regulation restrictions on who may keep such animals. Such a regulation is consistent with the Regulation making powers under the Act, and with the objects of the Act. Ultimately these are concerned with the protection of the community and the environment form the dangers posed by non-indigenous animals. It should not be forgotten that the long title of the Act includes as an object the control of the keeping of animals to which it applies.

1. The present categorisation regime is not that which appeared in the Act when it was first passed. Section 6 and 6A in their present form were introduced into the Act by Non-Indigenous Animals Amendment Act 1996, which commenced operation on 1 September 1997.

1. Section 34(1)(a) of the Interpretation Act 1987 provides that in interpreting the provisions of an Act or statutory rule consideration may be given to extrinsic material to confirm the ordinary meaning of words. In the present context I have had regard to the second reading speech, given in the Legislative Assembly on the introduction of the Non-Indigenous Animals Amendment Bill1996 on 17 April 1996, by the then Minister for Agriculture Mr Richard Amery. He said -

Non-indigenous animals are animals which were not native to Australia before European settlement. The Non-Indigenous Animals Act is an Act which aims to control and regulate the introduction into the State of certain species of animals and the movement and keeping of those animals within the State. Many non-indigenous animals have become free-living animals due to their deliberate or accidental release. Some of these animals have caused huge economic loss to agricultural production and the environment. For example, the wild European rabbit costs Australia at least $600 million every year in lost agricultural production. Estimates on the environmental cost put the cost of the European rabbit even higher.

Other indigenous animals have the potential to become pests or are highly dangerous to humans and need to be controlled. Some non-indigenous animals are domestic animals or pets which do not need to be controlled. The Non-Indigenous Animals Act was proclaimed in 1987 to prevent the establishment of any further exotic pest species in New South Wales. State legislation is necessary because Commonwealth legislation is only effective for controlling the generation of non-indigenous animals imported into Australia and cannot be used to control the offspring of those animals. The current classification system in the Act for non-indigenous animals is out of step with the national classification system. As a result, it is difficult for owners to move exotic animals from New South Wales to other States.

In this bill New South Wales will adopt the classification system used nationally to assist in the adoption of a national approach to the control of such species and a ready understanding between the States as to the degree of pest potential attributed to a species by a particular State. The national system is more comprehensive than the current New South Wales system, covering all classes of non-indigenous animals. It includes a category for species which are considered of such pest potential that they should not be allowed in Australia. This category will enable the prohibition of importation into New South Wales of certain highly dangerous species.

Another provision is that if a species of non-indigenous animal is not listed, it is by default in a category that is deemed not to be in Australia. A species in this category requires a full assessment of its pest potential before it can, if at all, be imported. This will ensure that any as yet unclassified animals will not be permitted into New South Wales before a proper assessment of their anticipated effect on the New South Wales environment and agriculture has been completed. A further category includes farm animals and domestic pets. Some of these animals are not currently included in the New South Wales classification system. Another category relates to recognised pets which are currently too widespread to limit their introduction. Individual States are responsible for control of these pets.

This bill will incorporate a system of five separate classifications. Category one is for animals which have a high pest potential and should not be allowed to enter or be kept in New South Wales, and animals not assigned to any other category. Category two is for animals which have a high pest potential, significant conservation value or are highly dangerous to humans. These animals may only be kept in government zoos or special collections. Category three is for animals which are to be licensed. Some species within this category are restricted to wildlife parks while others can be held privately, but under certain conditions.

Category four is for animals which are recognised domestic and/or farm animals, some of which may have a pest potential and which are kept widely in Australia. Category five is for recognised pest animals with populations already established in New South Wales, some of which are able to be controlled, but some of which it is inappropriate to include in any other category because of their numbers, widespread distribution or difficulties of control. Restrictions as to entry, movement and keeping are determined by other Acts such as the Rural Lands Protection Act and others. The working party of the Vertebrate Pests Committee of the Standing Committee on Agricultural and Resource Management is a national body with representatives from all States and the Commonwealth.

As New South Wales is represented on this committee, and has agreed with its report, it is only right that New South Wales adopt this national system. The Minister for Agriculture will recategorise exotic species into the new categories after considering advice from the National Vertebrate Pests Committee, the State Non-Indigenous Animals Advisory Committee, which is an advisory committee constituted under the Non-Indigenous Animals Act for the purpose of advising the Minister as to the proper classification of animals, and after considering representations from other interested groups. With those few comments I commend the bill to the House.

1. It can be seen that at the time the present categorisation regime was introduced the legislative intention was to use the mechanism of restricting who may keep certain prescribed categories of animals as a means of regulation.

1. It is also clear that at that time those restrictions, while contemplated by the legislation, were not expressly provided for in the Act, but were a matter for regulation.

1. A reading of the previous Regulation, the Non-Indigenous Animals Regulation 2006 demonstrates that at that time certain animals were categorised, inter alia, on that some animals could not be kept, while other could not be kept unless the keeper could satisfy requirements concerning where they were to be kept.. Thus clause 4 of the 2006 regulation provided -

(1) The following categories of animals are prescribed for the purposes of section 6 (a) of the Act:

(a) category 1a and category 1b (animals the entry and keeping of which are prohibited),

(b) category 2 (animals limited to restricted collections),

(c) category 3a and category 3b (animals permitted in other collections),

(d) category 4 (animals the entry and keeping of which are not restricted),

(e) category 5 (animals that are already widespread pests).

(2) Categories 1a, 1b, 2, 3a and 3b are identified as controlled categories for the purposes of section 6 (b) of the Act.

(3) Categories 1a, 1b, 2 and 3a are identified as higher risk categories for the purposes of section 6 (c) of the Act.

(4) Category 3b is identified as a lower risk category for the purposes of section 6 (c) of the Act.

So to did the Non-Indigenous Animals Regulation 1997 clause 5 of which was to the same effect.

1. The present Regulation also prescribes categories of animals on the basis, among others, of who can keep them and where they can be kept. While its provisions are different to those contained in the previous Regulation, it adopts a similar regulatory mechanism.

1. Unlike previous versions, the present Regulation has the effect of requiring that category 3(a) animals be kept in animal display establishments or by persons with research authorities. Both are subject to other legislation concerned with regulating and ensuring the safe keeping of such animals. In doing so the 2012 Regulation adopts a model of regulation previously applied to category 2 animals, and makes provision for their safekeeping and welfare as required by cl 5.

1. Mr Cavaleri submitted that insofar as the Regulations, now and in the past, sought to restrict individuals such as him from keeping animals, they are and were ultra vires of the Act. In so submitting, he relied on the Second Reading speech of the then Minister for Agriculture, the Hon J R Hallam, on the introduction of the Non-Indigenous Animals Bill into the Legislative Council on 8 April 1897 (Hansard 10233). He said that -

"...The bill will control the keeping movement and entry into New South Wales of non-indigenous animals that are perceived to be threats or potential threat to agriculture, the environment, or the public. The primary emphasis is on security.

He noted that the Government had already licensed zoos and circuses under the Exhibited Animals Protection Act 1986 -

"That Act controls all premises where animals are kept for public display, but not private collections or scientific institutions or the movement of animals between premises."

He noted that the Bill provided that -

"... it will be an offence to keep animals in categories 1, 2 or 3 except by the holders of licences authorizing their keeping."

1. Mr Cavaleri argued that this confirmed his submission that prohibiting individual keepers from keeping categories of non-indigenous animals was not a method of regulation authorised or contemplated by the Act.

1. I think it unnecessary to determine that issue as that method of regulation was clearly put in place when the present sections 6 and 6A were included in the Act by the Non-Indigenous Animals Amendment Act 1996.

1. As a consequence of all the above I am satisfied that the 2012 Regulation is not ultra vires of the Act.

Consideration

1. Assuming that Mr Cavaleri satisfied all the other criteria to be granted a licence to keep crab-eating macaques (a matter which I think it not necessary to decide) the fact that he is unable to satisfy the requirements for category 3(a) animals, is in my opinion determinative of the issue of whether he should be granted a licence. The 2012 Regulation confines who may keep category 3(a) animals to individuals who hold specified licence and authorities. Mr Cavaleri does not hold them. I am required by cl 35(3) to have regard to that fact in determining his licence application.

1. I accept the Agency's submission that the 2012 Regulation was amended in this way to reflect the inherent risks associated with keeping crab-eating macaques. During the course of the hearing I heard evidence regarding those risks form a series of people who have significant experience in keeping crab-eating macaques and from Professor Groves, a professor of biological anthropology at ANU. I accept that individuals such as Ms Gray and Mr Patterson have direct hands on experience in keeping crab-eating macaques, whereas Professor Groves does not. While this may better qualify them to express opinions about the day to day requirements to keep crab-easting macaques, I find that the Professor Groves is better qualified to give evidence concerning the significant pest and disease potential posed by crab-eating macaques. A reading of his report paints a very concerning picture of the extent of the risks involved. Those concerns add weight to the means of addressing those risks put in place by the 2012 Regulation. In my opinion the pest and disease potential risks attached to the presence of crab-eating macaques in this State require that significant weight be given to the categories in clause 4, when deciding whether or not to grant a licence to them.

1. A consequence of that conclusion is that I am satisfied that irrespective of the merits of Mr Cavaleri's case otherwise, on review, the best and preferable decision is to refuse Mr Cavaleri a licence to keep crab-eating macaques. This is so because in considering his application I am required by cl 35(3) of the 2012 Regulation to have regard to the categories of non-indigenous animals prescribed by clause 4. He is unable to satisfy the requirements for category 3(a) animals.

1. As a consequence I would not exercise my discretion in favour of granting him a licence, irrespective of him otherwise satisfying the requirements to be granted a keepers licence. During the course of the hearing I heard evidence and submissions going to those requirments. Given the conclusions I have reached above it is not necessary to consider those issues.

1. The Tribunal affirms the decision to refuse Mr Cavaleri a licence to keep crab-eating macaques.

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Decision last updated: 23 August 2013