HAMILTON and THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF BIODIVERSITY CONSERVATION AND ATTRACTIONS - [2021] WASAT 7

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BIODIVERSITY CONSERVATION ACT 2016 (WA)
CITATION:   HAMILTON and THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF BIODIVERSITY CONSERVATION AND ATTRACTIONS [2021] WASAT 7
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   4 DECEMBER 2020
DELIVERED          :   21 JANUARY 2021
FILE NO/S:   DR 105 of 2020
BETWEEN:   MATTHEW HAMILTON
Applicant
AND
THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF BIODIVERSITY CONSERVATION AND ATTRACTIONS
Respondent

Catchwords:

Biodiversity Conservation Act 2016 (WA) licensing scheme - Transition from Wildlife Conservation Act 1950 (WA) licensing scheme - Applicant held advanced avicultural licence under previous scheme - Application for authority to possess dollarbirds - Whether application to amend transitional licence or application for new licence - Whether private aviculture and study is a purpose for which a licence could be granted in relation to dollarbirds - Whether licence should be granted in exercise of discretion - Considerations relevant to exercise of discretion

Legislation:

Biodiversity Conservation Act 2016 (WA), s 1, s 2, s 3(1), s 3(2), s 4, s 56, s 255, s 256, s 256(1), s 256(2), s 257(5), s 260, s 261, s 263, s 263(2), s 264, s 278, s 279, s 284, Pt 1, Pt 13, Pt 14, Pt 16, Sch 1
Biodiversity Conservation Regulations 2018 (WA), reg 3, reg 11, reg 11(2), reg 13, reg 13(1), reg 13(n), reg 13(r), reg 35, reg 36, reg 36(2), reg 76, reg 76(2), reg 76(4)(c), reg 82, reg 82(6), reg 176
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 31
Wildlife Conservation Act 1950 (WA)
Wildlife Conservation Regulations 1970 (WA), reg 12(3a)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms R Panetta

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In very broad terms, the dispute between the parties concerns whether the applicant should be licensed to keep a species of birds, Eurystomus Orientalis, known as dollarbirds. The applicant is already licensed to keep other species of birds and, in March 2020, requested that the respondent license him to also keep dollarbirds. The respondent refused the application and, by these proceedings, the applicant seeks review of that decision.
The respondent is the Chief Executive Officer (CEO or respondent) of the Department of Biodiversity Conservation and Attractions (Department) and is, relevantly, responsible for granting licences for the purposes of the Biodiversity Conservation Act 2016 (WA) (BC Act).

Material before the Tribunal

A final hearing of the proceeding was conducted on 4 December 2020 (Hearing).
Before the Hearing, each party filed submissions and documents with the Tribunal, and the Tribunal prepared a hearing book, which was taken into evidence (Exhibit 1) and included:
(a)the Respondent's Statement of Issues, Facts and Contentions (Respondent's SIFC) and the Respondent's Bundle of Documents (Respondent's Bundle), both filed 10 September 2020; and
(b)the Applicant's Statement of Issues, Facts and Contentions (Applicant's SIFC) and the Applicant's Bundle of Documents (Applicant's Bundle), both filed 24 September 2020.
The applicant, who was self-represented, gave oral evidence at the Hearing. No other witnesses were called.
By orders made at the Hearing, the parties were given leave to provide, by no later than 11 December 2020, further written submissions to the Tribunal, which each of the parties did provide (the Applicant's Further Submissions and the Respondent's Further Submissions, respectively).
The evidence and materials above have been taken into account by the Tribunal in making its findings of material fact, and in determining the matter.

Regulatory framework

The proceeding was commenced by an application, dated 20 May 2020, made under reg 89(2) of the Biodiversity Conservation Regulations 2018 (WA) (BC Regs). In these reasons, unless otherwise specified, any reference to regulations is a reference to the BC Regs and any reference to legislative provisions or to 'the Act' is a reference to the BC Act.
The BC Act and BC Regs have replaced the Wildlife Conservation Act 1950 (WA) (WC Act) and Wildlife Conservation Regulations 1970 (WA) (WC Regs), which were repealed on 1 January 2019 (pursuant to s 278 and s 279 of the BC Act).
The BC Act commenced in essentially two tranches, relevantly as follows:
(a)save and except for s 1, s 2 and s 256, Pt 1 ('Preliminary'), and Pt 14 ('Regulations, orders and guidelines') commenced on 3 December 2016; and
(b)Part 10 ('Fauna and flora'), s 256, and Pt 16 ('Repeals and transitional provisions') commenced on 1 January 2019.
The BC Regs (substantively) came into operation on 1 January 2019 (commencement day).
Accordingly, on 20 March 2020, being the time the applicant requested to be licensed to keep dollarbirds, the BC Act and BC Regs were in operation.

Licensing of fauna

Part 14 of the Act empowers the making of regulations prescribing matters 'required or permitted to be prescribed' (s 255) including, without limitation, the matters in Sch 1, which in turn includes:
The taking, possession, disturbance, keeping, breeding, feeding, release, buying, import, export, supply, storage and transportation of fauna and the conduct of any business involving one or more of those activities.
One of the matters required to be prescribed is 'a licensing scheme under which the CEO may grant licences for the purposes of this Act' (s 256(1)). Under s 256(2), such regulations may, amongst other things, provide for:
(a)the kinds or classes of licences that may be granted, including licences that confer exclusive or preferential rights;
(b)application requirements and eligibility;
(c)the grant, amendment, renewal or transfer of licences;
(d)the issue by the CEO of guidelines in respect of licensing matters; and
(e)review of decisions by the Tribunal.
Part 4 of the BC Regs creates a licensing scheme, as contemplated by s 256(2) of the Act, including as follows:
(a)Regulation 13 provides for various classes of fauna licence, relevantly including:
(i)fauna possessing (breeding) licence: reg 13(1) (Breeding Licence) (which is dealt with in reg 34, and is a 'commercial licence' as defined under reg 3);
(ii)fauna possessing (other purposes) licence: reg 13(m) (Other Purposes Licence) (which is dealt with in reg 35);
(iii)fauna possessing (pet keeper's) licence: reg 13(n) (Pet Keeper's Licence) (which is dealt with in reg 36, which in turn specifies that such licences must be designated as either standard or advanced); and
(iv)fauna importing licence: reg 13(r) (Import Licence) (which is dealt with in reg 40).
(b)For the purposes of licensing, fauna is treated as falling into one of three categories (reg 3 and reg 11(2)):
(i)Category A - fauna in relation to which a licence is not required;
(ii)Category B - fauna in relation to which a standard Pet Keeper's Licence or standard Pet Dealer's Licence is required; and
(iii)Category C - fauna in relation to which an advanced Pet Keeper's Licence or standard Pet Dealer's Licence is required.
(c)Pursuant to reg 12, a person may apply for two or more licences, and the respondent may issue a licence (and give it a name) which combines two or more licences which would otherwise be separate licences.
(d)Applications for licences, including renewals, are made to the respondent pursuant to reg 73, and the respondent may require an applicant to provide further information in relation to an application (reg 74).
(e)Any application to renew a licence must be made at least 15 days before it expires (reg 75) and, once the application is so made, then the expiring licence continues to have effect until the application is determined, or the licence is otherwise dealt with under Pt 4 (reg 75(4)).
(f)Pursuant to reg 76, the respondent may, in considering an application, take into account any matter he considers relevant including (amongst other things and without limitation):
(i)whether the applicant is a fit and proper person to hold a licence (reg 76(3)(a));
(ii)the proper conservation, protection and management of fauna and flora (reg 76(3)(b));
(iii)the public interest (and especially the extent to which the operation of the licence would not be in the public interest) (reg 76(3)(c));
(iv)the impact that the granting of a licence to possess fauna would have on the welfare of any fauna (reg 76(4)(c));
(v)the suitability of any place, equipment or enclosure that may be used (reg 76(4)(d)); and
(vi)the extent to which any fauna pose, or could pose, a risk to public health or safety (reg 76(4)(e)).
(g)If the respondent decides to refuse an application for a licence (or renewal thereof), a notice must be given in writing (including reasons for the decision) (reg 78).
Regulation 82 provides for the amendment of licences. 'Amend' for these purposes means 'to add, substitute or delete a term or condition of the licence', or to correct an error on the licence (reg 82(1)). An application to amend a licence may be made under reg 82(3) and:
(5)Regulation 76 applies in relation to an application under subregulation (3) as if a reference in that regulation to an application were a reference to an application under subregulation (3).
(6) In considering an application under subregulation (3), the CEO may take into account any matter the CEO considers relevant to the application.

Transitional matters

Section 284 of the Act empowers the making of regulations to deal with 'transitional matters' (being, relevantly, to effect the transition from the WC Act and WC Regs following their repeal, including application matters).
Part 13 of the BC Regs deals with transitional matters as contemplated by s 284 of the Act, under which:
(a)reg 176(1) and reg 176(2) have the effect that a 'wildlife licence' (relevantly being a licence under the WC Act or the WC Regs, and including any conditions) in force immediately before 1 January 2019 is taken to be the 'corresponding licence' granted under the BC Regs;
(b)a table setting out the various wildlife licences (in column 1) and their corresponding licences (in column 2) is contained in Sch 11 of the BC Regs. Relevantly, it provides that:
(i)in respect of an advanced avicultural licence under reg 13(3a) of the WC Regs, the corresponding licence under the BC Regs is a standard Pet Keeper's Licence or an advanced Pet Keeper's Licence (depending on the category of fauna); and
(ii)in respect of an advanced avicultural licence held in relation to species other than those listed in Appendix C of the WC Regs (App C), the corresponding licence under the BC Regs is an Other Purposes Licence; and
(c)pursuant to reg 176(4), an application for a wildlife licence that was not determined before the commencement day may be dealt with as an application for the relevant corresponding licence.

Guidelines and principles

The Minister may issue guidelines relevant to the listing of species for various purposes (s 260) and setting out matters of importance to the performance by the CEO (or others) of any functions under the Act (s 261). Those guidelines (to be distinguished from CEO licensing guidelines: see [22] below) must be taken into account in the performance of any function under the Act (s 263) unless inconsistent with the Act (in which case the latter prevails: s 264).
The stated objects of the Act under s 3(1) are :
(a)to conserve and protect biodiversity and biodiversity components in the State; and
(b)to promote the ecologically sustainable use of biodiversity components in the State.
In pursuit of those objects, regard must be had to the principles of ecologically sustainable development (s 3(2)), which are set out in s 4 as follows:
(a)decision-making processes should effectively integrate both long term and short term economic, environmental, social and equitable considerations;
(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
(c)the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
(d)the conservation of biodiversity and ecological integrity should be a fundamental consideration in decision-making;
(e)improved valuation, pricing and incentive mechanisms should be promoted.
Under the BC Regs, the CEO:
(a)may issue guidelines specifying the processes for licence applications to be made and considered (reg 10); and
(b)must issue guidelines relating to fauna that may be possessed or dealt in as pets (under Categories A, B or C), with no obligation to include any particular species in those guidelines (reg 11).
The respondent has relevantly issued guidelines in relation to:
(a)fauna possessing (other purposes) licences, for the purpose of rehabilitating fauna for release into the wild (Exhibit 1, pages 237-249); and
(b)fauna possessing (pet keeper's) licences (Exhibit 1, pages 251 to 261) (Pet Keeping Guidelines), Appendix 1 to which specifies the fauna included in each of Category A, B and C.

Review of decisions

Regulation 89 provides that a person affected by a reviewable decision (which includes a decision made under Pt 4 to refuse to grant or renew a licence, or to refuse an application to amend a licence) may apply to the Tribunal for review of the decision.
By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), an application pursuant to reg 89 falls within the Tribunal's review jurisdiction, and the respondent's decision to refuse to license the applicant to keep dollarbirds is a 'reviewable decision' under the SAT Act.
In the exercise of its review jurisdiction, the Tribunal does not determine the validity or otherwise of the reviewable decision, but rather undertakes a hearing de novo (s 27(1) of the SAT Act), meaning that the Tribunal must make the reviewable decision afresh. In so doing, it:
(a)has the same jurisdiction, functions and discretions as those of the original decision-maker, in this case being the Commissioner s 29(1) of the SAT Act;
(b)may consider, but is not limited by, the reasons given by the respondent for the reviewable decision s 27(3) of the SAT Act, and may take into account any new or additional information which was not provided to the respondent at the time that the reviewable decision was made s 27(1) of the SAT Act; and
(c)may affirm, vary or set aside the reviewable decision, and in the latter case my substitute its own decision s 29(3) of the SAT Act), to arrive at the correct and preferable decision s 27(2) of the SAT Act.
Relevant to this matter, pursuant to s 31 of the SAT Act, the Tribunal may at any stage of a review proceeding invite the decision maker to reconsider the decision, and upon such invitation the decisionmaker may affirm, vary or set aside and substitute the decision. If the decisionmaker varies, or sets aside and substitutes, the decision then the varied / substituted decision is the reviewable decision.

Issue to be determined

The principal issue to be determined by the Tribunal is whether, on the basis that it is the correct and preferable decision, the applicant should be licensed, by way of either the grant of a new licence or the amendment of an existing licence, to possess dollarbirds.

Material facts

The Tribunal finds the following material facts, which are uncontentious.
The applicant:
(a)is an aviculturist and qualified zoologist;
(b)from 4 February 2018 until 1 January 2019, held a (renewed) Advanced Avicultural Licence (AL035614) (Old Licence) (Exhibit 1, pages 83-85) which:
(i)was a 'wildlife licence' issued pursuant to the WC Act and WC Regs; and
(ii)authorised the applicant, on certain conditions, to keep any avian species for which a licence was not required, as well as ten specified species listed on the licence (which species do not include dollarbirds);
(c)applied in accordance with reg 75, before the expiration of the Old Licence (on 3 February 2019), for renewal of the Old Licence (this is accepted by the respondent: see the Respondent's SIFC at para 79); and
(d)subsequently, under cover of an email dated 8 March 2020, applied to the respondent for authority to keep dollarbirds (Original Application).
The Original Application (Exhibit 1, pages 87-91) did not explicitly address the purpose for the proposed keeping of dollarbirds, but included statements to the effect that:
(a)the dollarbird is a permitted species under the Western Australian Organism list;
(b)the dollarbird is the only species of roller found in Australia and was kept in South Australia, the Northern Territory and by some specialised keepers in New South Wales;
(c)the applicant has studied seven other species of roller in the field;
(d)research and conversations undertaken by the applicant revealed no concerns about the migratory behaviour of dollarbirds causing distress in captivity; and
(e)the dollarbirds would be fed meat mix supplemented daily by live food comprising a mealworm base and insects caught by the applicant.
At the time of the Original Application, the respondent had not published approved forms for the purposes of reg 73(2).
By email dated 16 April 2020 (Exhibit 1, page 121), an officer of the Department (Ms Goodreid) acknowledged receipt of the Original Application and advised the applicant that:
(a)there was considerable work involved in, and complexities around, the implementation of the 'new regulations' and the integration of unlisted species on possession licences;
(b)the Department was working on policy around the addition of species to the pet keeping list, and flexibility to accommodate the continued possession of currently unlisted species for aviculture enthusiasts; and
(c)the applicant's submission would be considered as the Department's work on those matters progressed.
By email to Ms Goodreid dated 19 April 2020 (Exhibit 1, pages 117119), the applicant stated:
(a)since the framework for a fauna possessing licence under the BC Regs was not yet in place, the applicant's aviculture activities should continue under the 'previous system' (referencing the Old Licence);
(b)the Original Application was not an attempt to get dollarbirds listed as a pet keeping species, but for the applicant to keep the species in his personal aviaries;
(c)the applicant was not applying to make dollarbirds available to the public, but sought permission to 'keep and import' dollarbirds; and
(d)the birds in question were currently in New South Wales with a colleague.
By email correspondence on 20 April 2020 (Exhibit 1, pages 131, 137 and 145), Ms Goodreid made enquiries of corresponding departments in the Northern Territory, South Australia and New South Wales in terms that:
(a)the Department was assessing an application from an aviculturalist to keep dollarbirds, which in Western Australia was not a species:
(i)listed for keeping under a Pet Keeping Licence (standard or advanced); or
(ii)currently kept or possessed for other purposes; and
(b)the Department was seeking confirmation that, as it had been advised by the applicant, dollarbirds were kept in the relevant jurisdiction and, if so then:
(i)information used in the assessment of the species (or the requirements or qualifications of the person applying) for keeping in captivity under permit; and
(ii)the permit category under which possession is authorised.

Ms Goodreid received responses from the corresponding department in each jurisdiction (Exhibit 1, pages 125, 135 and 141), including the following:
(a)in the Northern Territory, no hobby permits had been issued for dollarbirds, and only two other permits had been issued (to a wildlife park and an employee of that park), because:
(i)dollarbirds are migratory;
(ii)it is near impossible to find aviary bred birds and adults from the wild do not do well in captivity;
(iii)dollarbirds don't like small aviaries and will often kill one another outside breeding season (depending on the aviary size); and
(iv)they eat 'loads of live food' and tend not to be happy with meat mixes;
(b)in South Australia, four permits had been issued, each to a person highly experienced in bird husbandry. The species is not commonly held in captivity and permits tend to be granted as an exception, upon the recommendation of a current permit holder; and
(c)in New South Wales:
(i)dollarbirds are not on the animal keeper species list (and no changes to the list are currently planned) and are therefore not permitted to be kept under a private keeper's licence;
(ii)no formal process has been established to assess the acquisition of species not on the species list. Keepers that hold species not included in any class of keeper licence may be granted a general licence where specific conditions can be applied; and
(iii)one general licence permitting a private individual to keep dollarbirds had been granted, with conditions limiting breeding where possible and restricting the acquisition and disposal of birds (with departmental permission required for disposal).
On 1 May 2020, Ms Goodreid wrote to the applicant advising him that, at that time, the respondent was not considering applications for the acquisition of avian species not already lawfully held under an existing WC Act licence and, as such, the Original Application was declined.
The applicant responded to Ms Goodreid in terms that (amongst other things) 'the application was a formal one and requires assessment'.
By email dated 7 May 2020, Ms Goodreid on behalf of the respondent provided a 'formal response' (Original Decision) to the Original Application (including the further information provided by the applicant: see [34] above ) in terms that:
[U]ntil such time as dollarbirds are a listed pet keeping species, or assessed and approved for possession under another relevant licence … your request to possess dollarbirds, and the related import of dollarbirds, is declined[.]

The response also indicated that, as part of the consideration process for the Original Decision, information and advice had been obtained from other 'interstate agencies', with particular reference to the information provided from New South Wales (see [36](c) above).

By his application to the Tribunal dated 20 May 2020, the applicant sought review of the Original Decision.
Pursuant to s 31 of the SAT Act, on 23 June 2020, the Tribunal invited the respondent to reconsider the Original Decision, including orders inviting the applicant to provide to the respondent, by its legal representative, with:
(a)further information outlining the applicant's proposed activity and the purpose of the activity in support of keeping dollarbirds; and
(b)the relevant licence class under which the applicant sought to be licenced.
By email dated 26 June 2020, the applicant provided the following further information to the respondent:
This application is to hold dollarbirds Eurystomus orientalis under a Fauna Possessing (other purposes) licence. If granted I will apply for the correct import permit secondarily. I wish to pursue this licence in order to study dollarbirds … in captivity. My understanding is that this will be the licence class covering study and research activities as well as those activities pursued by specialised aviculturalists[.]
In the first instance I intend to obtain a captive bred, legally held pair from New South Wales … Initially I intend to obtain two birds, however at some point in the future I would ideally like to obtain another pair, for the purposes of behavioural observation and breeding (however this will not be commercial in any aspect and conducted for study …).
I propose to keep the species as part of an avicultural and field study. … My intention is to compile and publish my observations; which holistically detail observations in both field and aviary environments based on my own experiences[.]
On 27 July 2020, the respondent's legal representative sent an 'Application for Fauna Possessing (Other Purposes) Licence' form, (being the approved form for the purposes of applying for an Other Purposes Licence under reg 35, which by that time had been published) to the applicant and requested that he complete and return it.
On 7 August 2020, the applicant submitted a completed Other Purposes Application form and supporting documents (these documents and the information contained in the applicant's email of 26 June 2020 will be referred to collectively as the Revised Application).
On 18 August 2020, the respondent refused the Revised Application on the stated grounds that:
1)[The applicant could] not demonstrate the proposed purpose would aid [the Department] in its obligation to conserve biodiversity and biodiversity components (as per s 3 and 4 of the Act) based upon the current conservation status of [dollarbirds] and the keeping of these birds to enhance and record captive management knowledge is unlikely to contribute to the conservation and protection of the species in Western Australia. Furthermore there is no current requirement to establish a captive breeding program to support wild populations. Additionally, it was determined that there are no risks to the wild population based on demand for keeping dollarbirds in captivity, and therefore do not see a need for a managed breeding program for the purposes of pet keeping; and
2)Based on the information provided [the Department] is of the view, that despite the application and supporting material indicating a desire to undertake study of dollarbirds in an avicultural setting, the applicant is applying to possess dollarbirds for the purposes of an activity that more relevantly rests with the r.36 fauna possessing (pet keeper's) licence.
On 21 August 2020, the applicant indicated that he wished to advance his argument for a licence on the basis of the Original Application. Accordingly, by orders made by consent, the Tribunal invited the respondent to reconsider its decision by 28 August 2020.
On 21 August 2020, the respondent reconsidered the application as an application for a Pet Keeper's Licence under reg 36. The application was refused on the grounds that it was 'at variance with Appendix 1 – Pet Keeping Species Categories', noting that 'dollarbirds are not listed as a species in [the] Appendix and therefore may not be possessed under this licence'. That decision was communicated to the applicant by email dated 25 August 2020.

The parties' contentions

The respondent's contentions may be summarised as follows:
(a)pursuant to reg 12(3a) and App C of the WC Regs, the applicant's Old Licence authorised him to breed and keep:
(i)any avian fauna specified in Part A of App C; and
(ii)such avian fauna specified in Parts B, C and D of App C as are listed in the Old Licence;
(b)by virtue of reg 176(1), reg 176(2) and reg 75(4) of the BC Regs, the applicant's Old Licence is still in operation, but is taken to be a corresponding licence under the BC Regs;
(c)by virtue of Sch 11 of the BC Regs, insofar as the Old Licence authorised the applicant to possess:
(i)the species Eclectus Parrot in and GreenWinged Pidgeon, by reason of those species being listed in App C, the relevant corresponding licence held by the applicant is a Pet Keeper's Licence (Transitional PK Licence); and
(ii)the other eight species listed on the Old Licence (Other Authorised Species), by reason of those species not being listed in App C, the relevant corresponding licence held by the applicant is an Other Purposes Licence (Transitional OP Licence);
(d)the Old Licence, and therefore any corresponding licence, does not authorise the applicant to possess dollarbirds;
(e)the applicant's application to possess dollarbirds is properly characterised as an application for a new licence, but in any event, if it is characterised as an application to amend his existing licence/s then, by reason of reg 82, the same criteria and considerations apply;
(f)the applicant is not entitled to a Pet Keeper's Licence (standard or advanced) in relation to dollarbirds because dollarbirds are not listed as Category A, B or C species for the purposes of the BC Regs;
(g)the applicant is not entitled to an Other Purposes Licence in relation to dollarbirds because his application does not disclose as the purpose of possession:
(i)'education, research, study or conservation' within the meaning of reg 35(1)(a);
(ii)'rehabilitating fauna for release into the wild' within the meaning of reg 35(1)(b); or
(iii)'any other purpose' within the meaning of reg 35(1)(c) (which should be interpreted as being a purpose not otherwise covered by any other class of licence);
(h)the applicant is not entitled to a Breeding Licence in relation to dollarbirds because that class of licence is a commercial licence, and the applicant has expressly does not wish to breed dollarbirds commercially;
(i)the applicant is not entitled to an Import Licence because, in the absence of a licence that would permit him to possess dollarbirds in Western Australia, it would be inappropriate to permit him to import them; and
(j)in the premises:
(i)the applicant is not entitled to a licence under the BC Regs that would permit him to possess dollarbirds;
(ii)alternatively, for the same reasons, the applicant ought not be licensed to possess dollarbirds; and
(iii)the application should be dismissed.
The applicant's contentions may be summarised as follows:
(a)by reason of reg 176 and Sch 11 of the BC Regs, the Old Licence corresponds with an Other Purposes Licence rather than a Pet Keeper's Licence, and so the applicant is taken to hold an Other Purposes Licence;
(b)the Original Application should be taken as an application to amend the Transitional OP Licence, specifically by adding dollarbirds to the list of species the applicant is authorised to possess;
(c)dollarbirds are a permissible species under the Western Australian Organisms List and so capable of being approved;
(d)as the holder of an Other Purposes Licence, the applicant is entitled to be in a position to work with dollarbirds under that licence;
(e)the applicant's Transitional OP Licence already authorises him to keep the Other Authorised Species, which species are not listed in the Pet Keeping Guidelines or named in App C of the WC Regs (those species having fallen under Part C of App C, being 'any other species not listed' in the other Parts of App C);
(f)the Original Application was in a form and disclosed purposes similar to the applications submitted by the applicant in relation to the Other Authorised Species, and so there is precedent for approval to hold similar (unlisted) species for similar purposes;
(g)the purposes for which the applicant seeks to possess dollarbirds are in keeping with the objects of the Act, because:
(i)aviculture is an ecologically sustainable use of biodiversity, and assists to conserve an protect biodiversity and biodiversity components in the State;
(ii)private aviculture contributes to the research and understanding of bird species and their captive care; and
(iii)aviculture, and specifically that proposed by the applicant, contributes to the economic welfare of the State by the payment of licence fees and supporting private businesses (associated, for example, with aviary construction and feed);
(h)in the premises:
(i)the applicant is entitled to a licence granted under the BC Regs that would permit him to possess dollarbirds;
(ii)alternatively, the merits of the application are such that there are no good reasons to refuse it; and
(iii)the application should succeed.

Consideration

Since a number of the questions raised by the proceeding turn on the construction of the Act and the BC Regs, it is apposite to begin by noting that the meaning given to written laws is to be approached in accordance with the general principles of construction, relevantly summarised in Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 at [29] and [31] as follows:
29The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task.
…
31[Further], context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.

Authority under an existing licence

The Tribunal accepts the respondent's submissions in [48](b)-(c) above.
It appears clear from the bulk of the applicant's submissions and from the application itself that the applicant accepts that the Old Licence did not, and the Transitional PK Licence and Transitional OP Licence do not, authorise him to possess dollarbirds.
Nevertheless, for completeness and to address the applicant's submission outlined at [49](d) above, the Tribunal finds that the applicant is not authorised by any existing licence he holds to possess dollarbirds in Western Australia.
That conclusion derives from:
(a)the operation of reg 176; and
(b)the Old Licence itself, which pursuant to reg 12(3a) of the WC Regs, authorised the applicant to breed and keep:
… the avian fauna or species or classes of avian fauna specified in Part A of Appendix C and such individual birds of the species or classes of avian fauna specified in Parts B, C and D of that Appendix as are listed in the advanced avicultural licence.
(Emphasis added.)
The applicant notes in his submissions (Exhibit 1, page 25) that Part C of App C includes 'all species of fauna not listed in Parts A, B or D' which necessarily includes dollarbirds. However, it is clear from the language of reg 12(3a) of the WC Regs that the authority to keep avian fauna specified in Part C of App C was limited to such species as were listed on the advanced avicultural licence in question.
Dollarbirds were not included in Part A of App C, nor in the species listed on the Old Licence, and therefore the Old Licence did not authorise the applicant to possess dollarbirds.
By its express language, reg 176 simply deems a wildlife licence in force immediately before the commencement day to be a corresponding licence under the BC Regs. Its effect is to preserve, not to enlarge, the authority granted under such a licence. Accordingly, neither the Transitional PK Licence nor the Transitional OP Licence currently authorise the applicant to possess dollarbirds.

Entitlement to a licence

The written submissions of both parties were framed in terms of the whether the applicant was, or was not, 'entitled' to a licence that would permit him to possess dollarbirds. That is not, however, the primary question to be addressed by the Tribunal.
It is clear from the express language of the Act, specifically s 257(5), that:
No person is entitled to the grant, renewal or transfer of a licence as of right unless the regulations expressly provide otherwise.
Since there is nothing in the BC Regs that relevantly confers an express right on the applicant in these circumstances, the question of entitlement is easily resolved in the negative.
The principal question for the Tribunal, therefore, is whether, in the exercise of the discretion conferred on the respondent (and, on review, the Tribunal) the applicant should be licensed to possess dollarbirds.

Characterisation of the application

The applicant seeks to add dollarbirds to the species he is already authorised to possess. That application is, for the reasons outlined above, either an application to amend his existing licence/s or an application for a new licence.
The applicant's Further Submissions are to the effect that the application is properly characterised as an application to amend the applicant's 'current licence' (with particular reference to the Transitional OP Licence) by the addition of dollarbirds to the species he is authorised to keep. The respondent contends that the application is more properly characterised as being for a new licence, but that little turns on the issue. On the evidence, it is apparent that the applicant intended by his request in March 2020 to have his existing licence/s amended. However, for the reasons that follow, that characterisation does not materially alter the determination of the primary issue (and both possible characterisations are dealt with).
An application to add a species under a licence is, in the Tribunal's assessment, an application to add a term to, and therefore to amend, the licence under reg 82 (see [16] above). Pursuant to reg 82(5), reg 76 applies to an application to amend a licence in the same way as it would apply to an application for, or to renew, a licence.
Accordingly, whether the application is characterised as being for a new licence to be issued to the applicant, or to amend the applicant's existing licence/s (being the Transitional PK Licence and the Transitional OP Licence), the considerations contained in reg 76 are relevant to the determination of the application.
It is clear from the terms of the Act and the BC Regs, noting in particular s 263(2) and reg 76, that in the consideration and assessment of any application for a licence under the BC Regs, the respondent (and the Tribunal on review):
(a)exercises a very wide discretion; and
(b)may take account of any matter considered to be relevant (reg 76(2)).
Without limiting the matters that may be considered, the following are included under reg 76(4) as being relevant considerations:
(c)for a licence authorising the possession of fauna, the impact that the granting of the licence would have on the welfare of any fauna;
(d)the suitability of any place, equipment or enclosure that may be used in connection with the care, possession or management of fauna if the licence were to be granted; and
(e) whether the fauna may be classified as fauna causing damage; and
(f)the extent to which any fauna pose, or could pose, a risk to public health or safety.

Pet Keeper's Licence

To the extent that the application is an application for a new Pet Keeper's Licence, reg 36 applies and provides, in subreg (2), that any such licence must when issued be designated as being:
(a)a standard fauna possessing (pet keeper's) licence, relating to fauna in Category B; or
(b)an advanced fauna possessing (pet keeper's) licence, relating to fauna in Category C.
The Pet Keeping Guidelines specify, in Appendix 1 thereof, the species contained in each Category of fauna for the purposes of reg 11 (and therefore reg 36). Notably, in relation to birds, there is no 'catch all' provision in Appendix 1 of the Pet Keeping Guidelines (compare Part C of App C under the WC Regs which included 'any other species not listed'). Accordingly, the species included in each of Category A, B and C are only those specifically listed.

Since dollarbirds are not included in either Category B or Category C, by reason of the designation requirement in reg 36(2), it is not possible to issue a Pet Keeper's Licence in relation to that species.
To the extent that the application is characterised as being an application to amend the Old Licence, the Tribunal considers that, in the exercise of its discretion under the BC Regs:
(a)given reg 176 (pursuant to which the Old Licence is taken to be a corresponding licence under the BC Regs) and reg 82 (which evinces an intention that applications to amend licences are to be assessed in line with new applications), any proposed amendment to an existing Pet Keeper's Licence should be consistent with the requirements of reg 36;
(b)in any event, the requirements for and limitations on the grant of a Pet Keeper's Licence under reg 36 are relevant considerations which, pursuant to reg 76(2) and reg 82(6), are properly taken into account by the Tribunal in its consideration of the application to amend the applicant's Transitional PK Licence; and
(c)the correct and preferable decision is that, since dollarbirds are not included in the species comprising either Category B or Category C, the Transitional PK Licence should not be amended to add that species.

Other Purposes Licence

The respondent's submissions focus on the purpose/s disclosed by the applicant's application, which are argued to be incompatible with the grant of an Other Purposes Licence.
To the extent that the respondent's contentions outlined at [48](g) above are to the effect that an Other Purposes Licence could not, in the circumstances, be issued to the applicant, that position is not accepted by the Tribunal.
Regulation 35, which deals with Other Purposes Licences, provides:
(1)A fauna possessing (other purposes) licence authorises the holder of the licence to possess fauna for 1 or more of the following purposes -
(a)education, research, study or conservation;
(b)rehabilitating fauna for release into the wild;
(c)any other purpose specified in the licence.
(2)Without limiting any other provision of these regulations, the CEO guidelines may establish criteria for determining whether fauna is suitable to be held under a fauna possessing (other purposes) licence.
(3)A fauna possessing (other purposes) licence may authorise the holder of the licence to place the fauna on display to the extent specified in the licence.
It is clear from the information supporting his application that the applicant does not propose to rehabilitate dollarbirds for release into the wild, nor to display them to the public.
The remaining bases upon which an Other Purposes Licence could be issued, therefore, are those under regs 35(1)(a) and 35(1)(c). There are no guidelines issued pursuant to reg 35(2) that are relevant to those purposes.
It appears from the application, and the Tribunal finds, that the purpose for which the applicant intends to keep dollarbirds is private aviculture and study.
Although the Tribunal accepts that the applicant intends to share his observations about any dollarbirds he is permitted to keep with fellow enthusiasts and with the Department, that kind of study is not, in the Tribunal's view, the kind of 'research' or 'study' contemplated by reg 35(1)(a). Those terms:
(a)are not defined in the Act or the BC Regs, and must be given their given their ordinary meaning, including by giving appropriate weight to the context in which they appear; and
(b)are more properly construed to refer to more a formal, systematic course of inquiry or investigation, involving more than a single pair of birds, than is disclosed in the information provided by the applicant.
As to the term 'any other purpose' in reg 35(1)(c):
(a)The respondent properly argues that that provision is to be construed such that it does not render other provisions (relevantly, other classes of licence) of the BC Regs 'superfluous, void or insignificant' (Respondent's SIFC, paras 92-95).
(b)The respondent also contends that, as a consequence, the purpose/s for keeping dollarbirds disclosed by the applicant's application - being to keep dollarbirds in private aviaries for 'largely personal study and experience':
(i)could be accommodated under a Pet Keeper's Licence; and
(ii)could not, therefore, be accommodated under an Other Purposes Licence.
The Tribunal considers that the latter contention goes too far. The import of such a construction is that no licence could ever be issued for the private aviculture and study of species not listed in Appendix 1 of the Pet Keeping Guidelines. So restrictive a construction:
(a)is not suggested by the very broad discretion evinced by the language of the BC Regs as they pertain to licensing (particularly in the absence of any guidelines issued pursuant to reg 35(2) that would support such an approach);
(b)does not sit comfortably with the WC Act and WC Regs having empowered the grant of licences for similar purposes and species (albeit under different classes), where there is little to suggest that a substantive change in approach to the CEO's overarching discretion was contemplated under the current licensing scheme; and
(c)in any event is, for these purposes, unnecessary.
Relevant to the determination of whether a licence should be granted are not only the requirements of reg 35, but also the considerations contained in reg 76. Accordingly, even if the application discloses a purpose that falls (or potentially falls ) within the parameters of reg 35 (or indeed any other class of licence), the question of whether to grant such a licence must be determined taking into account all relevant considerations, as guided and empowered by reg 76. Turning to those considerations the Tribunal:
(a)is satisfied that the applicant is a fit and proper person and otherwise suitable to hold an Other Purposes Licence; and
(b)does not have evidence giving rise to concerns regarding dollarbirds posing a risk to public health or safety, or that would classify them as fauna causing damage.
Relevant to the welfare of the species in question (reg 76(4)(c)):
(a)the applicant has stated that the dollarbird pair he initially proposes to acquire are captive bred (see [42] above), and that to his knowledge there are no concerns about their welfare in captivity (see [31](d) above); and
(b)nevertheless, there is evidence before the Tribunal, obtained by the respondent from equivalent fauna licensing authorities (in the jurisdictions identified in the Original Application: see[31](b) and [36] above), to the effect that:
(i)dollarbirds are migratory and often do not fare well in an aviary setting, or on mixed meat feed; and
(ii)the practice in other jurisdictions is to take a cautious approach in relation to the possession of dollarbirds, with the general position being that their possession in private aviaries is not permitted (with very few exceptions having been made).
The Tribunal considers the knowledge, experience and practice of licensing authorities in other jurisdictions in relation to dollarbirds to be relevant to the determination of the application (reg 76(2)).
The matters in [81] above raise sufficient concerns regarding the welfare of dollarbirds in captivity that the application should, in the Tribunal's view, only be allowed if there are such strong grounds in favour of permitting their possession in captivity as to outweigh those concerns.
The Tribunal notes that, in considering the application, it is not concerned with assessing the value or import of private aviculture in any general sense (as to which see [49](g) above). Rather, it is concerned only with the merits of this particular applicant keeping the particular species, dollarbirds, in the circumstances and for the purposes of the application in question.
In this regard, the Tribunal notes that, on the evidence before it, there is little to suggest that the private study of a pair (or two pairs) of dollarbirds in captivity is of such import or value to the:
(a)conservation and protection of biodiversity and biodiversity components (including the species dollarbirds as a component) in the State; or
(b)promotion of the ecologically sustainable use of biodiversity components (including the species dollarbirds as a component) in the State,
as, at the date of the Hearing, to weigh strongly in favour of granting the application.
The above assessment of the merits of granting a licence pertains whether the application is characterised as being for a new licence or for the amendment of the Transitional OP Licence.

Conclusion

For the reasons outlined above, that the Tribunal has determined that the applicant should not be licensed to possess dollarbirds (not because a licence could not be granted, but because the Tribunal is not satisfied that the exercise of discretion under the Act and the BC Regs favours granting such a licence).
For completeness, the Tribunal notes that, in circumstances where the applicant cannot possess dollarbirds in Western Australia, there would be no utility in permitting him to import them.

Orders

The Tribunal orders:
1.The decision of the respondent to refuse to license the applicant to possess dollarbirds (Eurystomus Orientalis) is confirmed.
2.The application is unsuccessful.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
21 JANUARY 2021