Snowy Mountain Bush Users Group Inc v Minister for the Environment

[2024] NSWSC 1040

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Snowy Mountain Bush Users Group Inc v Minister for the Environment [2024] NSWSC 1040

Hearing dates:

1 & 2 July 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Extend time for the plaintiff to commence the proceedings to 7 May 2024.

(2) Dismiss the amended summons.

(3) The plaintiff is to pay the defendants’ costs.

Catchwords:

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – amendment to the Kosciuszko National Park Wild Horse Heritage Management Plan to permit aerial shooting of wild horses in the Kosciuszko National Park - proceedings for an injunction and an order in the nature of certiorari relating to the amendment of the Plan – whether representations made by the Secretary of the Department to the Minister were misleading and/or contained a material error causing the Minister to commit jurisdictional error – where animal welfare was a mandatory consideration but not the only nor the most significant consideration – where animal welfare considerations were taken into account by the Minister – where Minister was provided with relevant documents and information by the Secretary – no jurisdictional error

ADMINISTRATIVE LAW – ground of review other than procedural fairness – unreasonableness – general test – whether the decision of the first defendant to approve aerial shooting in all of Kosciuszko National Park lacked an evident or intelligible justification and was therefore unreasonable – where the higher standard of legal unreasonableness in Adelaide City Corporation was the appropriate test – where aerial shooting would comply with relevant animal welfare legislation – where standard operating procedure would be developed with the RSPCA and relevant specialists and adapted for use in Kosciuszko National Park – not the role of the Minister to decide on the operational matters of aerial shooting – decision not unreasonable

ADMINISTRATIVE LAW – ground of review other than procedural fairness – whether the method of aerial shooting being deployed is inconsistent with requirements to accord with national standard operating procedures, animal welfare assessments and animal welfare legislation – where national standard operating procedures does not prohibit aerial shooting – where previous national standard operating procedures were inconsistent with scientific developments – where implementation of aerial shooting is not rendered invalid or unlawful by the method of implementation – where evidence established that an animal welfare assessment had been carried out - method of aerial shooting not inconsistent with requirements

ADMINISTRATIVE LAW – standing – equitable remedies – special interest – associations and organisations – whether the plaintiff had a special interest in bringing the proceedings – where plaintiff has existed for 20 years and its purpose relates to the welfare and heritage of the Kosciuszko National Park – where plaintiff was significantly involved in the making of the Kosciuszko Wild Horses Heritage Act 2018 (NSW) – where plaintiff was identified as a major stakeholder – common law principles not excluded by s 193 of the National Parks and Wildlife Act 1974 (NSW) – plaintiff had standing to bring the proceedings

CIVIL PROCEDURE – time – extension of time – the claims brought by the plaintiff were subject to a limitation period of 3 months after the date of decision – claims were brought 6 months after the date of decision – whether an extension of time should be granted – where the matter is of significant public interest and raises sufficiently arguable issues – where there was little to no prejudice to the defendants – where the delay was to the benefit of the defendants – extension of time granted

Legislation Cited:

Kosciuszko Wild Horse Heritage Act 2018 (NSW) ss 4, 5, 6, 8, 9, 10, 11, 12

Kosciuszko Wild Horse Heritage Bill 2018 (NSW)

National Parks and Wildlife Act 1974 (NSW) ss 72AA, 81, 193

Prevention of Cruelty to Animals Act 1979 (NSW) ss 4, 5

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Cases Cited:

Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53

Bateman’s Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefits Fund Pty Ltd & Anor (1998) 194 CLR 247; [1998] HCA 49

Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11;(2024) 98 ALJR 594

Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50

South-East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113

VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Snowy Mountain Bush Users Group Inc (Plaintiff)
Minister for the Environment (First Defendant)
Secretary of the Department of Climate Change, Energy, the Environment and Water (Second Defendant)

Representation:

Counsel:
O Jones & J Tyler-Stott (Plaintiff)
G Wright SC and I King (Defendants)

Solicitors:
Ken Cush & Associates (Plaintiff)
NSW Department of Climate Change, Energy, the Environment and Water (Defendants)

File Number(s):

2024/169236

Publication restriction:

Nil

JUDGMENT

1. The plaintiff is a not-for-profit voluntary organisation incorporated on 23 December 2003 which advocates for right to freedom of access to Kosciuszko National Park (“KNP”) for sustainable recreational use by current and future generations.

2. The plaintiff seeks in an amended summons filed 6 June 2024 declarations, an injunction, and an order in the nature of certiorari, relating to a decision by the first defendant, the Minister for Environment, (“the Minister”) on 23 October 2023 to amend the Kosciuszko National Park Wild Horse Heritage Management Plan and in relation to the implementation of that plan. In short, the amendment to the Management Plan (“the Amended Plan”) permitted the aerial shooting of wild horses within KNP to reduce their numbers. The plaintiff seeks a declaration that the Amended Plan is invalid, that the decision to adopt it should be set aside, a declaration that the defendants are acting in contravention of s 10 of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) (“the KWHH Act”), and an injunction prohibiting the defendants from continuing with aerial horse culling operations in the KNP.

3. The plaintiff also seeks an extension of time to commence the proceedings to 7 May 2024, being the date of the filing of the original summons.

4. Ground 3 of the amended summons asserts that representations made by the second defendant, the Secretary of the Department, (“the Secretary”) to the Minister, were misleading and contained a material error with the result that the Minister committed jurisdictional error in adopting the Amended Plan. Ground 4 alleges that the Minister, when deciding to adopt the Amended Plan, made an error of law in relation to the use of aerial shooting of wild horses as a control method and thereby committed jurisdictional error. Ground 5 alleges that the Minister, when deciding to adopt the Amended Plan, acted in a legally unreasonable way in relation to the use of aerial shooting as a control method and thereby committed jurisdictional error.

5. Ground 1 alleges that both defendants are acting contrary to law in purporting to carry out and give effect to the Amended Plan. This was said in the amended summons to amount to jurisdictional error, but that is no longer asserted. The essence of ground 1 is simply that the implementation of the Amended Plan is contrary to law.

6. In summary, the plaintiff says in relation to the grounds:

Ground 3: The adoption of aerial shooting as a control method in the Amended Plan was based on incomplete and misleading advice from the Secretary as to the animal welfare issues arising in relation to aerial shooting. As a result the Minister’s decision to adopt the Amended Plan was infected by error.

Grounds 4 and 5: The Minister’s decision to approve in the Amended Plan aerial shooting in all part of the KNP lacked an evident or intelligible justification in light of the known animal welfare risks arising in relation to aerial shooting and was therefore legally unreasonable.

Ground 1: The method of aerial shooting currently being deployed by the Secretary is inconsistent with the requirements of the Amended Plan, namely the requirements that any aerial shooting accord with national standard operating proceedings (sic), animal welfare assessments and animal welfare legislation.

The amendments to the original plan

7. Prior to October 2023, the Kosciuszko National Park Wild Horse Heritage Management Plan (“the Plan”) adopted under the KWHH Act did not permit the use of aerial shooting as a control method in relation to wild horses in the KNP.

8. A Decision Brief was forwarded by the Secretary to the Minister on or about 27 July 2023 (“the First Decision Brief”). Its purpose was to make a direction to the Secretary to prepare a draft amendment to the Plan.

9. The First Decision Brief informed the Minister that the Plan, adopted on 24 November 2021, required the wild horse population to be reduced to 3,000 horses in 32% of the KNP by the end of June 2027. It said that on current estimates there were around 19,789 horses across 53% of the KNP. The horses were significantly impacting ecological, cultural and recreational values in the park.

10. The First Decision Brief went on to say:

Current control methods will not meet the required target

The current approved methods of control identified in the Plan include passive trapping followed by rehoming or sending to a knackery, ground shooting (including the option of killing horses in trap yards) and aerial or ground mustering.

Analysis indicates that the National Parks and Wildlife Service (NPWS) must remove 5,960 horses every year (23,840 in total) to meet the statutory requirement to reduce the horse population to 3,000 horses by June 2027. However, it is estimated that the level of horses capable of being removed using existing control methods will, on average, be no more than 4,100 horses annually - i.e. 1,860 horses per annum less than is required to meet the population target.

Aerial shooting will enable the target and animal welfare requirements to be met

Aerial shooting is both a highly effective means to rapidly reduce feral animal populations (including horses) and achieves higher animal welfare outcomes via a faster time to death and reduced stress to individual animals relative to other forms of control (which involve, for example, mustering, transport, killing in a knackery or shooting in trap yards).

The welfare benefits of aerial shooting, when conducted according to best practice, are acknowledged in scientific and technical literature. Aerial shooting is routinely used for invasive species in NSW including deer and pigs. The Plan itself acknowledges the welfare benefits of aerial shooting, despite not authorising its use. A 2022 published evaluation of the Plan's implementation concludes that aerial shooting can have good animal welfare outcomes when conducted in accordance with best practice; and a national standard operating procedure for the aerial shooting of feral horses already exists.

(emphasis added)

11. On 27 July 2023, the Minister directed the Secretary to prepare a draft amendment to the Plan that would adopt and approve aerial shooting as a control method.

12. Following the Minister’s direction on 27 July 2023, a draft amended plan was prepared and exhibited for public comment between 8 August and 11  September 2023. A total of 11,002 representations were received as part of the consultation. On or about 6 October 2023, the Secretary provided a Decision Brief (“the Second Decision Brief”) to the Minister in relation to the Minister’s consideration whether to adopt the amendments to the Plan.

13. The Second Decision Brief relevantly said:

Recommendation

That you:

•   Note the initial draft amending plan to make amendments to the Kosciuszko National Park Wild Horse Heritage Management Plan 2021 that was exhibited for public comment under section 6 of the Act, and now provided to you in accordance with section 8(a) of the Act (Tab 1).

•   Note that this briefing constitutes the representation on the initial draft amending plan by the appropriate delegate of the Secretary, as described in section 8(b) of the Act.

•   Consider either or both of the following:

- The public representations received on the initial draft amending plan exhibited under section 6 of the Act, and now provided to you in accordance with section 8(c) of the Act (Tabs 2 to 2C), and/or

- The summary of public representations received on the initial draft amending plan, now provided to you in accordance with section 8(d) of the Act (Tab 5).

•   Consider the representation from the National Parks and Wildlife Advisory Council under section 7 of the Act, and now provided to you in accordance with section 8(c) of the Act (Tab 3)

•   Note that the Heritage Council of NSW determined not to make a representation under section 7 of the Act (Tab 4).

•   Consider the advice of the Wild Horse Community Advisory Panel, including the dissenting advice from one panel member, provided in response to a request made under clause 4, Schedule 1 of the Act (Tab 6).

•   Note that the exhibited initial draft amending plan (Tab 1) and final draft amending plan (Tab 13), were prepared having regard to requirements for the wild horse heritage management plan in section 5 of the Act, including by taking into account the object of the Act, the objects of the National Parks and Wildlife Act 1974 (NPW Act), and the matters required to be considered under section 72AA of the NPW Act.

•   Consider the potential environmental impacts of enabling aerial shooting to be used as an approved wild horse control method under the Kosciuszko National Park Wild Horse Heritage Management Plan 2021, as set out in the Review of Environmental Factors (Tab 7).

•   Consider the representation submitted by the Aboriginal Cultural Heritage Advisory Committee (Tab 8) and note that the Review of Environmental Factors includes consideration of the potential impacts of aerial shooting on Aboriginal cultural heritage (Tab 7).

•   Consider the draft carcass management plan, which will be finalised and approved by the Acting Coordinator-General, Environment and Heritage Group should you decide to adopt the final draft amending plan (Tab 10).

•   Note a draft standard operating procedure has been developed for a preliminary program of aerial shooting of wild horses and will be finalised and approved by the Acting Coordinator-General, Environment and Heritage Group should you decide to adopt the final draft amending plan (Tab 12).

•   Note that the annual population survey of wild horses commences 9 October 2023 and outcomes will be used to inform future operational decisions about the application of aerial shooting as a control method, should you decide to adopt the final draft amending plan.

•   Note that a communications plan will be finalised and implemented to support public and stakeholder awareness of your decision on whether to adopt the final draft amending plan.

•   Note that Department of Planning and Environment (DPE) Legal and NSW Crown Solicitor’s Office (CSO) has reviewed the final draft amending plan (Tab 13) and this brief.

•   Decide whether to adopt the final draft amending plan to make amendments to the Kosciuszko National Park Wild Horse Heritage Management Plan 2021, which will make aerial shooting an approved control method (and make other supporting amendments to the plan) (Tab 13).

…

Draft standard operating procedure for preliminary program has been prepared

An independent, expert review of current published scientific literature in August 2023 concludes that aerial shooting results in animal welfare outcomes that are equivalent to and better than all other control operations (Tab 11). The review was provided to and publicly released as part of responses to questions on notice from the Senate Inquiry.

If you decide to adopt the final draft amending plan, aerial shooting of wild horses in Kosciuszko National Park would be carried out to the highest animal welfare standards. This will include the development of a standard operating procedure (SOP) informed by independent expert veterinary and animal welfare advice and involve ongoing auditing by animal welfare experts. The NPWS SOP would meet Australian and NSW legislative requirements.

A draft SOP has been developed for a preliminary aerial shooting program in consultation with an independent wildlife veterinarian and RSPCA NSW (Tab 12). The draft SOP will be finalised and approved by the Acting Coordinator-General if the final amending plan is adopted. The SOP for the full operational program will then be developed and finalised based on outcomes of the preliminary program and independent animal welfare advice and approved by the Acting Coordinator-General.

Once approved, the final SOP will be followed in all future wild horse aerial shooting programs in the park and remain under active, ongoing review.

(emphasis added)

14. Tab 11 (referred to above) was a document entitled “Literature review on humaneness and effectiveness of aerial shooting of feral horses” (“the Literature Review”), written by Professor Elissa Cameron who is Professor of Wildlife Ecology at the University of Tasmania, and was a member of the Independent Technical Reference Group who have been advising on the issue of the wild horses since at least 2015. The Literature Review relevantly said:

Overview

Aerial shooting, particularly from helicopters, is an effective tool for reducing wildlife abundance in inaccessible areas or on landscape scales. Public acceptability remains low, and relates to welfare concerns, exacerbated by a lack of information on animal welfare outcomes. The humaneness of aerial shooting was considered by the Independent Technical Reference Group in 2015, although at this stage aerial shooting was not considered one of the options. The goal of this review is to determine if the 2015 humaneness assessment is supported by any subsequent research.

The literature supports that the keys to successful aerial operations depend on using highly skilled and experienced shooters and pilots, ensuring multiple shots ('overkill'), and shooting in relatively open areas. When skilled operators work in open areas with multiple shots to each animal, the outcomes for animals are humane, with very short time to insensibility (<1 minute), with more than half insensible on the first shot and very low percentages of wounding (<1%). Aerial shooting therefore results in welfare outcomes that are equivalent to and better than all other control operations. Furthermore, aerial shooting involves a single procedure, so cumulative impacts do not need to be considered, but do need to be considered in other control methods. Lastly, aerial shooting can reduce numbers to an extent that research suggests is required to have positive impacts on conservation.

Due to the public concerns, the practices should be openly audited and made publicly available to ensure best practice is employed, and that there is continual improvement, with animal welfare outcomes prioritised in every management action. However, the decision of technique should be based on the achievement of the management objective and the welfare outcomes. Community perception of welfare outcomes should not drive the decisions, but should be considered where there could be a reputational risk effecting (sic) the licence to operate.

In summary, both desktop and published field humaneness assessments conclude that best practice aerial shooting results in humaneness that are comparable or better than other forms of control, with ground shooting having similar outcomes. Furthermore, aerial shooting is a technique that has the potential to remove sufficient numbers to impact the desired conservation outcomes on the National Park. The literature therefore supports the conclusion that aerial shooting could be a humane and effective management tool.

…

Aerial shooting assessment

Aerial shooting involves a qualified shooter using a high calibre semi-automatic weapon from a helicopter, with shooting including deliberate repeat shooting. There is a standard operating procedure in Australia (Sharp 2011). Generally, helicopter-based shooting is effective for population reduction (Bengsen et al. 2022). While aerial shooting has been used on a large number of species and is efficient for reducing population size (e.g. feral donkeys Carrion et al. 2007; feral pigs Parkes et al. 2010; red deer Forsyth et al. 2013; sika deer Forsyth et al. 2013, Latham et al. 2018, fallow deer Bengsen et al. 2022; chital Bengsen et al. 2022), fewer studies have assessed welfare outcomes.

To assess welfare, all the different sections of the procedure need to be considered, including the helicopter pursuit, the mode of death, time to death and rate of non-lethal injury and associated suffering. Furthermore, logistic challenges also need to be considered, as aerial shooting is inherently imprecise, since a moving platform is used to shoot a moving target (Hampton et al. 2014), such that these logistic considerations can have welfare implications. Some logistic techniques may both enhance efficacy and welfare outcomes, such as thermal camera assisted aerial shooting (Puisford et al. 2022, Cox et al. 2023). Vegetation is an important consideration, as closed canopy makes both detection and follow-up shots more difficult and time consuming, potentially increasing the time from detection to insensibility. Initial studies had an outcome focus. For example, English (2000) assessed the welfare outcomes of the 606 horses shot in an operation in Guy Fawkes National Park, which led to widespread claims of inhumane treatment, but found no evidence of negative welfare outcomes.

A growing number of studies have performed a welfare assessment on aerial shooting operations, including both pre-mortem and post-mortem inspections, which are required for a full assessment of welfare outcomes (Hampton et al 2016b). The overall conclusion from these initial studies is that the time to death or insensibility (because death can be hard to judge from a helicopter, Hampton et al. 2022), is short, including if the chase is included in the calculation. For horses specifically there has been one study, but it assessed the welfare outcomes across three control operations and almost 1000 horses (Hampton et al. 2017). The welfare outcomes are very similar to another open country species, the dromedary camel (Hampton et al. 2014). While some parameters were sub-optimal (37% were not rendered immediately insensible; 3% of horses were shot outside of preferred anatomical target zones), this was explained by shooter skill which is emphasised as an important consideration. However, the time to insensibility was quick, and the non-fatal wounding rate was <1%. High shooter skill and experience is associated with better welfare outcomes in horses (Hampton et al. 2017) and other species (Hampton et al. 2014). Other shot related factors, such as projectile energy, shot type and vegetation cover can also affect outcomes (Table 4).

(emphasis added)

15. The Literature Review then set out a table prepared from a number of studies of aerial shooting of a variety of wild animals. The table provided information about what percentage of the animals were rendered instantly insensible and factors which might have informed those percentages. The Literature Review then said:

Based on literature currently available, aerial shooting in horses has involved chases of <1 minute, and time to insensibility averaging 15s, with 63% rendered insensible instantly. Thus, the evidence to date in horses suggests that the welfare impact approximates Scenario 1 (best practice, chase <1minute, first shot cranium, rendered almost instantly insensible), rather than Scenario 2 (extended chase >5 minutes, wounding, regaining consciousness before death). However, for a minority of individuals, chase time was ~10 minutes, so closer to Scenario 2 (Hampton et al. 2017). Evidence from other species supports the conclusion that welfare outcomes more closely match Scenario A (sic) in open country species like camels. Outcomes for most other species are also closer to Scenario A (sic), even in woody country – provided best practice is applied (such as fly-back with multiple shots, high projectile energy, or thermal cameras in bush), although there is a growing probability that some individuals have welfare outcomes closer to Scenario B (sic).

Overall, therefore, there is evidence that welfare outcomes are moderate with a duration of minutes, resulting in a score of 4 for Part A (i.e. less impact than most other management techniques for Part A), and an A score for Part B, representing a very rapid time to insensibility from first shot, and low impact (equivalent to the low-impact lethal techniques, like humane on-site killing, and best practice ground shooting). Therefore, the evidence to date suggests that best practice aerial shooting would lead to equivalent welfare outcomes to other forms of lethal control, and better outcomes then several of the current techniques.

When assessing welfare outcomes, the goals of the operation must also be considered. The goal of removing horses is to reduce impact on the land and the remaining species. If the horses removed do not have the desired positive outcome for the land values and other species, then the welfare impacts are not justified. For example, if the number of horses removed is equivalent to annual recruitment, then the population size and associated impacts on the natural values will remain constant, and the goals of the operation will not have been met. One could therefore argue that the welfare impacts on the horses removed was poorly justified if there is no positive impact on the land values and remaining species, which provided the justification for the management action. Thus, aerial shooting can remove sufficient numbers to positively impact conservation, providing better justification for the welfare impacts. While public acceptability of aerial shooting remains problematic, the choice of management techniques should be based on actual (not perceived) animal welfare outcomes and the effectiveness of the technique to reach the desired conservation outcome (Hampton et al. 2016b).

(emphasis added)

16. Amongst other things that were contained in the Second Decision Brief were the matters required to be provided to the Minister pursuant to s 8 of the KWHH Act, being (a) the draft plan, (b) any representation on the draft plan by the Secretary, (c) any representations received under section 6 or 7, and (d) a summary of any representations received under section 6.

17. In the part of the Second Decision Brief entitled “Summary of Representations”, the Secretary informed the Minister that a total of 11,002 representations were received. They were contained in a USB attached to the Brief. The Brief said:

This report summarises the representations received during public exhibition on each proposed amendment and outline recommendations in response.

18. In relation to Amendment 5.2 (Aerial Shooting) the following appeared:

This amendment proposed to include aerial shooting in the list of control methods available for use in controlling wild horses in the park (section 6.2 of the Kosciuszko National Park Wild Horse Heritage Management Plan). Feedback on Amendment 5.2 is summarised in Table 5 below.

87% of all submissions provided feedback on Amendment 5.2. Of these, 82% expressed support for aerial shooting as a control method and 18% expressed opposition.

The most frequently raised points in opposition to Amendment 5.2 were:

•   concerns about impacts on animal welfare (73%)

•   accuracy of wild horse population estimates (36%)

•   adequacy of existing control methods to achieve the plans objectives (8%)

•   environmental impact of carcases left in situ (6%)

•   emotional impact on people (5%)

•   ineffectiveness as a control method (5%)

The most frequently raised points in support of Amendment 5.2 were:

•   inadequacy of existing control methods (88%)

•   acceptability of animal welfare outcomes (83%)

•   accuracy of population estimates (78%)

•   safety (73%)

Table 5

What points were raised in the representation?		Recommendations
Wild horse welfare	Animal welfare outcomes are not acceptable. Representations expressed opposition to this amendment on the basis that it will have a significant and unacceptable impact on the welfare of wild horses. Concerns about aerial shooting included: • aerial shooting cannot be sufficiently accurate to guarantee an instant death • it is not possible to check every horse to ensure shooting has been effective • shooting may separate foals from mares and disrupt herd structure	No change to draft amending plan. Evidence to date suggests that best practice aerial shooting would lead to equivalent welfare outcomes to other forms of lethal control, and better outcomes then several of the current techniques. The literature supports that the keys to successful aerial operations depend on using highly skilled and experienced shooters and pilots, ensuring multiple shots (‘overkill’), and shooting in relatively open areas. When skilled operators work in open areas with multiple shots to each animal, the outcomes for animals are consistent with the highest animal welfare standards. Aerial shooting results in welfare outcomes that are equivalent to and better than all other control operations. If aerial shooting is approved and subsequently used as a control method, NPWS will achieve the highest animal welfare standards consistent with relevant Commonwealth and/or NSW animal welfare legislation, regulations and codes of practice through adherence to a rigorous and comprehensive NPWS standard operating procedure. The procedure will be developed by NPWS with independent expert veterinary and animal welfare advice. Compliance with the procedure will be subject to regular auditing by animal welfare experts.
	Animal welfare outcomes are acceptable. Representations expressed support for the amendment on the basis that the animal welfare outcomes are acceptable. Representations highlighted that this method has been used effectively to control numerous feral animal species.	No change to draft amending plan. Points raised in support were consistent with the draft amending plan.

19. On 23 October 2023 the Minister decided to adopt the Amended Plan.

The Amended Plan

20. The Amended Plan relevantly provided:

Once this plan is adopted, it must be carried out and given effect. The plan will prevail if there is any inconsistency with the Kosciuszko National Park Plan of Management 2006 (Department of Environment and Conservation NSW 2006).

…

6. Control methods

Control methods will be selected for use based on maximising animal welfare outcomes (section 6.1), control effectiveness and taking into account management variables specific to the area. Staff, contractor and public safety during control operations is also a critical factor in identifying appropriate control methods. Management variables such as terrain, accessibility, weather and wild horse demographics, effectiveness, efficiency and cost also need to be considered (Kosciuszko Wild Horse Scientific Advisory Panel 2020).

Both lethal and non-lethal control methods will be required to achieve the plan’s targets. AH approved control methods will be available for use on all wild horses across the park.

Capture and control methods that are available for use in the park are outlined below.

6.1   Environmental assessment of control methods

The control methods in section 6.2 of the plan may include actions that are considered ‘activities' for the purposes of Part 5 of the EP&A Act. In order to meet the environmental impact assessment requirements for ‘activities’ under the EP&A Act, all matters affecting or likely to affect the environment by reason of the relevant control methods have been examined and taken into account before the final plan was adopted under section 9 of the Kosciuszko Wild Horse Heritage Act.

Further assessment of environmental impacts will be undertaken to comply with the EP&A Act before the implementation of relevant control actions in the park or parts of the park.

6.2   Animal welfare

Ensuring optimal animal welfare outcomes is a key priority for the management of wild horses in the park. All control methods will be implemented consistent with relevant Commonwealth and/or NSW animal welfare legislation, regulations, codes of practice and standard operating procedures. Currently, these include but are not limited to:

Commonwealth

•   Australian Animal Welfare Standards and Guidelines: Land transport of livestock (AHA 2012)

•   Model Code of Practice for the Welfare of Animals - Feral Livestock Animals: Destruction or capture, handling and marketing (SCAAHC 2002)

•   Model Code of Practice Humane Control of Feral Horses (Sharp & Saunders 2014) and associated standard operating procedures:

-    HOR001 - Ground shooting of feral horses (Sharp 2011a)

-    HOR002 - Aerial shooting of feral horses (Sharp 2011d)

-    HOR003 - Mustering of feral horses (Sharp 2011b)

-    HOR004 - Trapping of feral horses (Sharp 2011c)

-    GEN 001 - Methods of euthanasia (Sharp 2013)

New South Wales

•   Prevention of Cruelty to Animals Act 1979

•   Prevention of Cruelty to Animals Regulations 2012

•   Prevention of Cruelty to Animals (Land Transport of Livestock) Standards (NSW Government 2013)

•   Welfare scoring nutritionally deprived beef cattle, dairy cattle and their crosses, sheep and horses (NSW Department of Primary Industries 2013)

For those control methods where an Australian or state standard operating procedure, standard or guideline exists, an animal welfare assessment of the method was completed by the Kosciuszko Wild Horse Independent Technical Reference Group (ITRG) (2015) and reviewed by the Kosciuszko Wild Horse Scientific Advisory Panel (2020). The assessments were undertaken using the Model for Assessing the Relative Humaneness of Pest Animal Control Methods (Sharp and Saunders 2011).

For some control methods, such as euthanasia via lethal injection, an Australian or state standard operating procedure has not yet been developed. In these cases, a standard operating procedure will be developed, and an animal welfare assessment completed before the control method is used (Kosciuszko Wild Horse Scientific Advisory Panel 2020).

The following actions will be undertaken for each control method available for use on wild horses in the park:

1.   Develop standard operating procedures that are tailored for use in the park. The standard operating procedures will be consistent with national and/or state procedures where available. Standard operating procedures will be developed following engagement with the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and relevant specialists as required. Standard operating procedures will be approved by the Deputy Secretary of the National Parks and Wildlife Service (NPWS).

2.   Animal welfare assessments will be undertaken for those methods where a national or state standard operating procedure is not currently available before the method is used in the park.

3.   Annual review of standard operating procedures to update and adjust control methods based on best practice approaches to animal welfare and the outcomes of any animal welfare assessments undertaken during use of the control method.

Implementation of control methods will be undertaken with consideration of the following variables to ensure welfare outcomes are optimised:

•   skilled personnel (Hampton et al. 2017; Kosciuszko Wild Horse Scientific Advisory Panel 2020)

•   strict adherence to procedures (Kosciuszko Wild Horse Scientific Advisory Panel 2020)

•   minimising cumulative welfare impacts inherent in multi-staged methods (Kosciuszko Wild Horse Scientific Advisory Panel 2020; ITRG 2015).

Grounds of appeal

21. It is convenient to deal with the grounds in the order they were argued.

Ground 3

22. Ground 3 said this:

3. The representations made by the Second Defendant to the First Defendant pursuant to Section 8(d) of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) were misleading and/or contained a material error with the result that the Minister committed jurisdictional error in adopting the Plan.

a.   The summary of representations made by the Second Defendant stated that evidence suggested that best practice aerial shooting would lead to equivalent welfare outcomes to other forms of lethal control, and better outcomes than several of the current techniques.

b.   The summary of representations made by the Second Defendant stated that aerial shooting results in welfare outcomes that are equivalent to and better than all other control operations.

c.   The representations made in particulars (a) and (b) above were misleading, incorrect, made in the absence of evidence and/or legally unreasonable.

d. The representations made constituted a mandatory relevant consideration for the Minister pursuant to Section 8(d) of the Kosciuszko Wild Horse Heritage Act 2018 (NSW).

e.   It is to be inferred that the Minister considered the representations in adopting the Plan.

f.   In light of the errors in the representations, the Minister committed jurisdictional error in adopting the Plan.

23. The plaintiff accepted that, for it to succeed, it had to establish three propositions. First, the issue of animal welfare implications of aerial shooting is central to the question of whether to adopt aerial shooting as a control method, and the Minister was legally obliged to consider that matter. Secondly, the summaries provided to the Minister on that topic were obviously incomplete and did not provide a fair account of the relevant information with the result that the Minister made a legal error in making the decision. Thirdly, the incomplete and misleading summaries were not immaterial on the basis that the minister can be taken to have read and considered some further underlying material in the brief.

24. It became clear during the course of argument that, although the ground made reference to the representations and the summary of representations pursuant to s 8(d) of the KWHH Act being misleading or containing material error, the ground was actually concerned with the summary provided by the Secretary to the Minister and the recommendations made by the Secretary in response to the summary of representations recorded pursuant to s 8(b).

Submissions

25. The plaintiff pointed to s 4 of the KWHH Act which provides:

Object of Act

The object of this Act is to recognise the heritage value of sustainable wild horse populations within parts of Kosciuszko National Park and to protect that heritage.

The plaintiff submitted that inherent in the concept of protecting the heritage value of wild horses is the necessity to consider whether or not they should be shot and, if they are, whether that will cause them unnecessary pain and suffering. The plaintiff drew attention to the Second Reading speech in respect of the bill which became the KWHH Act in 2018 to support the notion that animal welfare implications were involved in the concept of protecting their heritage.

26. The plaintiff submitted that what was contained in the Amended Plan at 6.2 (see [20] above), particularly the references to legislation and codes concerned with prevention of cruelty to animals, demonstrates the centrality of animal welfare concerns.

26. The plaintiff submitted that all the Minister was told about animal welfare in the body of the Brief was the italicised paragraph set out at [13] above, reproduced here:

An independent, expert review of current published scientific literature in August 2023 concludes that aerial shooting results in animal welfare outcomes that are equivalent to and better than all other control operations (Tab 11). The review was provided to and publicly released as part of responses to questions on notice from the Senate Inquiry.

The plaintiff submitted that this summary was not accurate, complete or fair.

28. The plaintiff submitted that a comparison between the summaries provided to the Minister and the Literature Review, and the reasoning on which the Literature Review was based, demonstrates that the summaries did not give a fair account of the underlying material to the Minister for the following reasons.

29. First the summaries presented aerial shooting as a control method that resulted in equivalent or better animal welfare outcomes than other control methods as a general proposition, without qualification or condition. On the other hand, the conclusions reached in the Literature Review were made on the basis of material that was highly contingent and qualified.

30. There was only one survey of aerial shooting of wild horses, and that was conducted in 2017. It was known as the 2017 Hampton Survey. This survey involved “head shooting” only, it involved 37% of horses not being rendered immediately insensible, it occurred in a flat, arid and environment with few trees in Central Australia, and involved chase times of less than one minute. Although the author of the Literature Review relied on the work of the ITRG in relation to animal welfare outcomes of aerial shooting in 2015, its findings of acceptable animal welfare outcomes were what is termed “Scenario 1”, (where horses are chased for less than one minute, are rendered insensible with the first shot, and do not recover consciousness prior to death). The ITRG also concluded that aerial shooting should only occur in open areas with minimum high canopy vegetation. The plaintiff submitted that none of these qualifications in the 2017 Hampton Survey and the ITRG 2015 were explained to the Minister in the relevant summaries, yet they were critical.

31. Secondly, the plaintiff submitted that summaries provided to the Minister suggested that some change had occurred in the scientific literature in relation to animal welfare outcomes of aerial shooting since the plan was first adopted, such that the Minister could be satisfied that aerial shooting led to the best animal welfare outcomes. However, the plaintiff submitted that the critical material relied on in the Literature Review was not new or even recent. The 2015 report of the ITRG had been available for eight years and had only concluded that best practice aerial shooting “can have” the lowest negative animal welfare impact of all lethal control methods. Further, a report of the Scientific Advisory Panel in 2020 had considered the 2017 Hampton Survey and said that it provided “insufficient evidence” to reach a firm conclusion about the animal welfare impacts of aerial shooting. That information was not conveyed to the Minister.

32. Thirdly, the plaintiff submitted that the goal of the Literature Review was stated to be “to determine if the 2015 humanness assessment is supported by any subsequent research”. However, the plaintiff submitted that nowhere was the Minister told this or told of the particular conditions by which the ITRG considered that aerial shooting could led to acceptable animal welfare outcomes.

33. Fourthly, the plaintiff submitted that the author of the Literature Review expressly accepted that for a “minority” of horses subject to aerial shooting, animal welfare impacts would be closer to “Scenario 2” in the ITRG assessment (extended chase greater than five minutes, wounding, regaining consciousness before death). That was also not brought to the attention of the Minister.

34. The plaintiff submitted that there is nothing to suggest that the Minister read or otherwise considered the Literature Review itself rather than the summaries of it provided by the Secretary. The second Decision Brief expressly requested the Minister to consider certain tabs of which Tab 11 (the Literature Review) was not one.

35. The defendants submitted that the KWHH Act places no limitation on the control methods that can be authorised in a plan and makes no reference to animal welfare, either in relation to the making of a plan or amending a plan. The Minister was not required by the legislation to consider whether a control method was humane or had the lowest animal welfare impact.

36. The defendants criticised the reliance by the plaintiff on two isolated passages in the recommendations in response to the representation made about animal welfare outcomes. The defendants submitted that the passage as a whole drew the Minister’s attention to the Literature Review and the evidence that successful aerial operations depend on using highly skilled and experienced shooters and pilots, the use of multiple shoots, shooting in relatively open areas and the application of welfare standards consistent with Commonwealth and NSW animal welfare legislation, regulations and codes of practice. Further, the defendants submitted that the recommendations as a whole reminded the Minister that if aerial shooting was approved and used, National Parks and Wildlife Service would develop a standard operating procedure with independent expert veterinary and animal welfare advice which would be audited regularly by animal welfare experts.

37. The defendants submitted that the plaintiff acknowledged that the conclusions reached in the Literature Review were that aerial shooting led to appropriate animal welfare outcomes in some conditions but not in others. The defendants submitted that nothing in the material briefed to the Minister as a whole contradicted that claim, and submitted that the Literature Review plainly made that point.

38. The defendants submitted that it is clear that the documents read as a whole advised the Minister that aerial shooting can be better than or equivalent to other forms of control provided certain conditions were applied, including trained shooters. The defendants submitted that, to the extent that the plaintiff argues to the contrary, the argument is an attempt at a merits review.

39. The defendants submitted that animal welfare is merely one factor to be taken into account. The defendants submitted further that the precise method of implementation of any particular control method was not a matter the Minister was statutorily bound to take into account. The provisions of the KWHH Act do not elevate animal welfare above the protection of the environment.

40. The defendants submitted that even if the Court were to find that any statement or summary given to the Minister was incomplete or inaccurate, it would not follow that the Minister thereby committed jurisdictional error. Reliance was placed on Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11;(2024) 98 ALJR 594 at [35]-[38]. The defendants submitted that a factual misstatement does not give rise to jurisdictional error. It could not be said that the Minister failed to take into account welfare considerations in deciding to amend the plan to authorise aerial shooting. The Minister clearly did so, and the consequence is that, even if the impugned statements in the summaries were incomplete and misleading, they would not vitiate the Minister’s decision.

Consideration

41. The KWHH Act relevantly provides:

4   Object of Act

The object of this Act is to recognise the heritage value of sustainable wild horse populations within parts of Kosciuszko National Park and to protect that heritage.

Part 2 Wild horse heritage management plan

5   Preparation of draft wild horse heritage management plan

(1)  The Chief Executive is to cause a draft wild horse heritage management plan to be prepared for Kosciuszko National Park (the draft plan).

(2) The draft plan is to:

(a) identify the heritage value of sustainable wild horse populations within identified parts of the park, and

(b) set out how that heritage value will be protected while ensuring other environmental values of the park (including values identified in the plan of management for the park) are also maintained, and

(c) take into account the object of this Act, and

(d) take into account the objects of the National Parks and Wildlife Act 1974 and the matters that are required (by section 72AA of that Act) to be taken into consideration in the preparation of a plan of management, and

(e) include any other matter prescribed by the regulations.

(3) …

6   Public consultation on draft plan

(1)  The Chief Executive is to give notice of the public exhibition of the draft plan by publishing the notice in the Gazette and in any other manner that the Chief Executive considers to be appropriate.

(2) …

8   Draft plan and representations to be given to Minister

The Chief Executive is, as soon as practicable after the end of the later of the periods referred to in section 6 or 7, to forward a copy of the following to the Minister for consideration:

(a)  the draft plan,

(b)  any representation on the draft plan by the Chief Executive,

(c) any representations received under section 6 or 7,

(d) a summary of any representations received under section 6.

9   Adoption of plan

The Minister may, after considering the following, adopt the draft plan without alteration or with such alterations as the Minister thinks fit or may refer it back to the Chief Executive for further consideration:

(a)  the draft plan,

(b)  any representations made by the Chief Executive, the Advisory Council or the Heritage Council under this Part,

(c)  any representations made by other persons under this Part (or a summary of those representations).

10   Adopted plan must be carried out and given effect to

An adopted plan must be carried out and given effect to by the Chief Executive.

11   Amending or replacing adopted plans

(1) The Minister may, at any time, direct the Chief Executive to prepare a draft amending plan to make amendments to an adopted plan or to prepare a new draft plan to replace an adopted plan.

(2)  An amending plan when adopted amends the adopted plan and a new draft plan when adopted repeals any previous adopted plan.

(3)  Sections 6–9 apply to a draft amending plan in the same way as those sections apply to a draft plan.

…

12 Relationship with National Parks and Wildlife Act 1974

(1)  An adopted plan prevails to the extent of any inconsistency between the adopted plan and a plan of management.

(2) Without limiting subsection (1), section 81 (4) of the National Parks and Wildlife Act 1974 does not apply in relation to anything done to carry out or give effect to an adopted plan.

(3)  When causing a plan of management for Kosciuszko National Park to be prepared, the Chief Executive must ensure that the plan of management recognises the heritage value of sustainable wild horse populations within parts of the park.

(The reference to “Chief Executive” throughout the Act is to be understood as a reference to the “Secretary of the Department.)

42. Section 9 specifies only three groups of things which must be considered by the Minister. Section 5 sets out what is to be dealt with in the draft plan. That requires mandatory consideration of the matters in s 72AA of the National Parks and Wildlife Act 1974 (NSW) (“the NPW Act”). Animal welfare is not included in either ss 5 or 9. The plaintiff submitted that animal welfare is contained within the understanding of “heritage value” of the horses. The submission relied on s 4 of the KWHH Act and, presumably although not clearly articulated, the fact that the draft plan is by virtue of s 5(2) to identify and protect that heritage value. That heritage value is, however, of “sustainable” wild horse populations. That appears to recognise that the population of wild horses needs to be culled from time to time. How that occurs must have regard to legislation concerned with humane treatment of animals including their killing, such as the Prevention of Cruelty to Animals Act 1979 (NSW) (“the PCA Act”).

43. Another likely reason for animal welfare being a mandatory consideration is that the Minister is required to consider the representations of the Secretary and of the “other persons”, being members of the public by virtue of s 6. It is clear that a significant issue in those representations was the issue of animal welfare. That was at least partly because 73% of public submissions of those opposed to aerial shooting (18% in total) voiced concerns about impacts on animal welfare. Those representations were summarised in the Second Decision Brief, and the Secretary provided recommendations about them. Both were required to be considered under s 9. If the Minister did not do so, jurisdictional error would be established: Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82].

44. For these reasons, and given what is set out in section 6.2 of the Amended Plan and what can be discerned from the previous iteration of the Plan by reason of the amendments proposed (the unamended Plan was not in evidence), it should be accepted that consideration of animal welfare is a mandatory consideration in the preparation of the plan or its amendment. What must, however, be borne in mind is that animal welfare was not the only mandatory consideration, nor the most significant.

45. Nor can there be any doubt that animal welfare considerations were certainly taken into account by the Minister in approving the Amended Plan. It was the information provided to the Minister about those animal welfare concerns which gave rise to the principal challenge to the Minister’s decision.

46. In McQueen the High Court determined the issue of what information a Minister, exercising a power personally, is obliged to consider, and the extent to which the Minister can rely on information provided by the Department, including summaries of submissions. It was accepted in that case that the Minister did not read or consider actual representations made by the other party, but only submissions and draft reasons provided by the Department.

47. The joint judgment of Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ said:

[19] The foregoing permits a Minister to rely on his or her department to sift and organise material received, to prepare summaries of information, and to prioritise correspondence. Generally, there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. These principles were described by Brennan J in Peko-Wallsend as follows:

The Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister’s appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.

[20] Relying on the work of a governmental department does not immunise the Minister from errors of law made by departmental officers. Attribution of the knowledge of the department to the Minister means that the mistakes of the department are also those of the Minister. As Gibbs CJ observed in Peko-Wallsend:

[I]f the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

[21] The foregoing principles were affirmed by the Full Court of the Federal Court in Tickner v Chapman, where Kiefel J said:

I have earlier said that the Minister may seek the assistance of his staff. A ‘consideration’ of the representations does not in my view require him to personally read each representation. But it may be as well for him to do so, for if his staff are to convey what is contained within them they must do so in a way which provides a full account of what is in them. If they do not, the Minister will not have considered something he is obliged to, and in this respect the observations of Gibbs CJ in Peko-Wallsend at 30 as to what results are apposite. It may vitiate his decision.

[22] They were again endorsed by the Full Court of the Federal Court in relation to the Minister’s power to cancel a visa pursuant to s 501(3) of the Act in Carrascalao v Minister for Immigration and Border Protection. The Full Court there expressed the following three qualifications to the general principle that a Minister may rely on departmental summaries of material: first, reliance upon a materially deficient summary may give rise to an inference that the decision-making process was improper; secondly, the use of a summary may not be appropriate when it seeks to capture a substantive argument if the force of the submission is thereby lost; and thirdly, account must be taken by a Minister of any statement in a summary which advises the Minister to consider a particular document or documents. In Carrascalao, it had not been suggested that the summary relied upon had been inaccurate or incomplete, or did not convey the force of any argument made. As a result, the Minister was entitled to rely upon it. Because that summary also directed the Minister to the material itself (which was attached to the summary) the Minister was also obliged to turn his mind to whether he needed to refer to that material directly.

…

[28] It is a matter for the Minister to determine how to be satisfied as to whether “another reason” exists to justify revocation of a cancellation decision. Naturally, that can include personally reading and understanding all of the submissions. But that is not the only way the Minister’s function may be discharged. There is no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content.

…

[35] The respondent sought to raise, without filing a notice of contention, a second issue, namely whether the summary in the Submission and draft reasons was “deficient”. He relied upon the statement made by the primary judge, and accepted by the Full Court, that it was not possible to discern “the full sense and content of the representations made” from those documents. This was said to be an unchallenged finding of fact.

[36] Without deciding whether the respondent was entitled to rely upon this alternative contention, it is nonetheless misconceived for three reasons. In the first place, the statement of the primary judge was not a finding of fact; it was instead a characterisation of the Department’s work. Secondly, the observation that the summaries did not convey the “full sense and content” of the representations is one that might be made about any summary of material. A summary will, of necessity, edit the material received; it will reduce the quantum of the representations to the essence of what is needed for a Minister to reach the state of satisfaction mandated by s 501CA(4). So long as the representations are appropriate to be summarised and that process of distillation is accurate and provides a full account of the essential content, it will be lawful for the Minister to read the summary and nothing more. Thirdly, the primary judge’s conclusion falls short of identifying jurisdictional error. It was not at any stage suggested that any part of the content of the Submission and draft reasons was actually incorrect in describing the representations received. Nor was it contended that any particular representation had failed to be included. Even if this had occurred, it would not necessarily follow, for the reasons given, that the Minister had thereby failed to take into consideration a mandatorily relevant matter.

(citations omitted)

48. There are two significant differences between the position in McQueen and the present case. First, the Minister in the present case had not only the summary of representations and the Secretary’s recommendations in response to those summaries, but she also had the underlying documents that formed the basis of the Secretary’s commentary and recommendations. Secondly, it is not suggested in the present case that the representations were not properly summarised. The challenge was, rather, to the Secretary’s recommendations. The former of those differences is significant, but I accept that McQueen is relevant analogously to some extent.

49. Bearing in mind the principles set out in McQueen, I do not consider that the Minister’s decision was made on the basis of incomplete, inadequate, misleading or unfair information. The Secretary was not obliged to draw to the Minister’s attention every fact its officers knew about aerial shooting outcomes in terms of animal welfare. One reason for that is that it was no part of the Minister’s task to reach a conclusion on how the aerial shooting was to be carried out. It was not for the Minister to weigh up the relative impacts of one method of conducting aerial shooting over another, nor to be satisfied that all outcomes would fall within Scenario 1.

50. Contrary to the plaintiff’s submission (set out at [27] above) much more information than what was contained in that paragraph was provided to the Minister about animal welfare concerns.

51. First, what was contained in the body of the Second Decision Brief was this:

An independent, expert review of current published scientific literature in August 2023 concludes that aerial shooting results in animal welfare outcomes that are equivalent to and better than all other control operations (Tab 11). The review was provided to and publicly released as part of responses to questions on notice from the Senate Inquiry.

If you decide to adopt the final draft amending plan, aerial shooting of wild horses in Kosciuszko National Park would be carried out to the highest animal welfare standards. This will include the development of a standard operating procedure (SOP) informed by independent expert veterinary and animal welfare advice and involve ongoing auditing by animal welfare experts. The NPWS SOP would meet Australian and NSW legislative requirements.

A draft SOP has been developed for a preliminary aerial shooting program in consultation with an independent wildlife veterinarian and RSPCA NSW (Tab 12). The draft SOP will be finalised and approved by the Acting Coordinator-General if the final amending plan is adopted. The SOP for the full operational program will then be developed and finalised based on outcomes of the preliminary program and independent animal welfare advice and approved by the Acting Coordinator-General.

Once approved, the final SOP will be followed in all future wild horse aerial shooting programs in the park and remain under active, ongoing review.

(emphasis added)

52. The italicised portion (above) was taken from the Literature Review (set out at [14] above in the second paragraph of the extract). The plaintiff, nevertheless, was critical of the Secretary omitting the word “therefore” before the word “results”. The omission was scarcely surprising because the details in the Literature Review were not set out in that part of the Second Decision Brief. Nor did they need to be set out there. The material was contained in the Literature Review to which specific reference was made in the same paragraph.

53. The plaintiff submitted that there was nothing to suggest that the Minister had read the Literature Review, partly because it contained no markings and partly because it was not identified within the Recommendations at the beginning of the Second Decision Brief. In my opinion, it should not be inferred that the Minister did not read nor refer to the Literature Review. It was expressly identified in the paragraph set out above, and it is for the plaintiff to discharge its onus of proving what it asserts.

54. Even if it could be shown that the Minister did not have any regard to the Literature Review, I do not consider that what was contained in the Second Decision Brief was misleading or inadequate. It was nowhere being asserted that in every case aerial shooting would lead to outcomes in accordance with Scenario  1. It was self-evident that such could not be the case. The 2017 Hampton Survey (a large study involving about 1000 horses) produced a result of 63% of horses rendered insensible instantly. It was accepted that a minority was closer to Scenario 2 but that was explained (as the Literature Review noted) by shooter skill.

55. Further, more aspects of the Literature Review were set out in the Secretary’s Recommendations when responding to the summaries of the arguments put forward by the members of the public against aerial shooting. These are contained in the Table 5 in [18] above but should be repeated here:

The literature supports that the keys to successful aerial operations depend on using highly skilled and experienced shooters and pilots, ensuring multiple shots (‘overkill’), and shooting in relatively open areas. When skilled operators work in open areas with multiple shots to each animal, the outcomes for animals are consistent with the highest animal welfare standards. Aerial shooting results in welfare outcomes that are equivalent to and better than all other control operations.

56. In the passage in the Second Decision Brief (set out at [13] above under the heading “Draft standard operating procedure for preliminary program has been prepared”), the Minister was told that if she decided to adopt the proposed Amended Plan, aerial shooting “would be carried out to the highest animal welfare standards”, that this would involve the development of a standard operating procedure (“SOP”) which would be informed by “independent expert veterinary and animal welfare advice”. A similar statement was made at the conclusion of the Secretary’s Recommendation following the passage set out above (at [55]).

57. Some detail in that regard was provided to the Minister in the document annexed to the Second Brief at Tab 12 (the Preliminary Program SOP), immediately following the Literature Review. Tab 12 was specifically drawn to the Minister’s attention, and she indicated by a tick at the front of the Second Decision Brief that she had noted the draft SOP.

58. The fact that a SOP was to be prepared in relation to how, precisely, the aerial shooting was to be carried out, is a clear indication that the Minister was not required to immerse herself in the possible methods to be employed. It is also a clear indication that the statements made in the Second Decision Brief by the Secretary cannot be regarded as categorical statements of outcomes from the proposed aerial shooting. Those statements were appropriately extracted from the Literature Review having regard to what was proposed as discussed in the Preliminary Program SOP.

59. The plaintiff drew attention in some detail to what was contained in the report of the ITRG in 2015 entitled “Assessing the humaneness of wild horse management methods”, and in the report of the Scientific Advisory Panel (SAP) in 2020 to submit that best practice for aerial shooting contained the qualifications which those documents discussed. I do not accept that the detail discussed in those documents and others had to be drawn to the Minister’s attention. That information was not material to the Minister’s decision because her obligation was to consider issues of animal welfare, not to determine the methods by which animal welfare was to be protected. In any event these documents do not say that Scenario 1 outcomes are the only acceptable outcomes in animal welfare terms. Further, the SAP 2020 report contained a list of control methods that were not recommended. Aerial shooting was not amongst them.

60. The plaintiff’s submissions, in this regard, tended to verge towards a merits review of the decision to authorise aerial shooting. For example, attention was drawn to where in the SAP it was said that there was limited data on actual animal welfare outcomes for all available methods of control. The submissions seemed to argue that unless Scenario 1 outcomes were achievable in all cases, aerial shooting should not be permitted. That is a challenge based on merits and not on whether there was jurisdictional error.

61. The present challenge to the Minister’s decision is, and only can be, a challenge based on the information that was supplied to the Minister, and on her decision based on that information. Nothing that was contained in the Second Decision Brief guaranteed that there would be the best outcome in all cases.

62. It is necessary to reiterate what was said in Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 CLR 24 Brennan J said at 65 (in a passage picked up by the High Court in McQueen at [19]):

The Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions.

63. The plaintiff’s complaint, evident from the detail the Court was taken to by the plaintiff’s counsel from the various documents, papers and studies, was in substance that the Secretary should have provided to the Minister far more detail about animal welfare considerations than was contained in the Second Brief, or at least to have provided the information in the substantive early parts of the Brief rather than in attachments.

64. The Minister was provided with the Literature Review which considered the then current state of knowledge about contingencies that affected animal welfare outcomes. What was set out in the Second Decision Brief contained an accurate summary of the Literature Review with reference being made to the contingencies (the skill of the pilots, shooters and the location of the shooting) (Cf the italicised extracts from the Literature Review at [14] and [15] above with the italicised portion at [13] above and what appears in Table 5 at [18] above).

65. As noted, the Second Decision Brief said that a SOP would be developed with reliance on experts in animal welfare. That would be finalised based on outcomes of a preliminary program. Thereafter, the matter would be under active, ongoing review.

66. The information provided to the Minister was not inadequate or misleading. In terms of the Minister’s obligation to consider animal welfare, no material information was omitted by the Secretary.

67. It needs to be stressed that animal welfare was not the only consideration for the Minister, nor was it a paramount consideration. As the document in the Second Decision Brief at Tab 6 made clear, other considerations included the management of the wild horse population to be integrated with aerial shooting of other target species, the need to minimise the environmental and heritage impact of the horse population, and the need to move quickly to keep the horse population down because of the natural and indigenous cultural values of the KNP.

68. In circumstances where animal welfare considerations were but one factor to be considered, where the Second Decision Brief contained the relevant information about welfare outcomes in the Literature Review and that Literature Review was expressly referred to in the body of the Second Decision Brief, and where the Secretary had properly extracted aspects of the Literature Review including references to the qualifications to outcomes, I do not consider that the Minister’s decision was made other than on the basis of relevant and sufficient information.

69. This ground is not made out.

Grounds 4 and 5

70. Grounds 4 and 5 were in these terms:

Ground 4

4.   When deciding to adopt the Plan, the First Defendant made an error of law in relation to the use of aerial shooting of wild horses as a control method and thereby committed jurisdictional error.

a.   The First Defendant concluded in the Plan that the use of aerial shooting of wild horses “[f]or use in any area of the park”, without any preference for other control methods other than by reference to “operational factors”, was an approach that was consistent with the Prevention of Cruelty to Animals Act 1979 (NSW).

b. This was an error of law. The use of aerial shooting of wild horses “[f]or use in any area of the park”, without preference for other control methods other than by reference to “operational factors”, is an approach that is likely to “unreasonably, unnecessarily or unjustifiably" inflict pain upon wild horses contrary to s 5 of the Prevention of Cruelty to Animals Act 1979 (NSW).

Ground 5

5.   When deciding to adopt the Plan, the First Defendant acted in a legally unreasonable way in relation to the use of aerial shooting of wild horses as a control method and thereby committed jurisdictional error.

a.   The First Defendant concluded in the Plan that aerial shooting of wild horses could be used “in any area of the park”, without preference for other control methods other than by reference to “operational factors”.

b.   The First Defendant was aware, and it is the fact that, aerial shooting gives rise to significant risks of inflicting pain upon wild horses that are qualitatively and/or quantitatively different from other control methods.

c.   However, the Plan does not provide that other control methods should be used in preference to aerial shooting where that is operationally possible.

d.   To the contrary, the Plan states that there is no hierarchy or preference between control methods other than what is considered operationally efficient.

e.   In light of the known animal welfare risks arising from aerial shooting, there was no evident or intelligible justification for the First Defendant to proceed in this way.

Submissions

71. The plaintiff submitted that s 6.3 of the Plan provides that aerial shooting is for use in any area of the KNP. The plaintiff submitted that the Minister appears to have concluded from clause 6.2 of the Plan (dealing with animal welfare) that the use of aerial shooting in any area of the KNP was consistent with the PCA Act. The plaintiff submitted, however, that in the light of what was contained in ITRG 2015 that the use of aerial shooting in any area of the KNP without preference for other control methods other than by refence to “operational factors” is an approach that is likely to “unreasonably, unnecessarily or unjustifiably” inflict pain upon wild horses, and is thus contrary to s 5 of the PCA Act.

72. The plaintiff submitted that because the Amended Plan stated that there was no hierarchy or preference between control methods, and in the light of known animal welfare risks arising from aerial shooting there was no evident or intelligible justification for the Minister to proceed in that way. Accordingly, the Minister’s approach was submitted to be legally unreasonable.

Consideration

73. What is understood as legal unreasonableness was set out by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Tthe joint judgment of Hayne, Kiefel and Bell JJ said:

[72]   The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

…

[75]   In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

[76]   As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(citations omitted)

74. Li was concerned with legal unreasonableness in relation to a discretionary decision made under a statutory provision. Both parties accepted, however, that, because the present matter involved delegated legislation, being the Amended Plan, the higher standard of legal unreasonableness identified in Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3, was the appropriate test. In that case, French CJ said:

[48]   A high threshold test for unreasonableness invalidating delegated legislation was set by the Privy Council in Slattery v Naylor. Their Lordships spoke of a “merely fantastic and capricious bye-law, such as reasonable men could not make in good faith”. That criterion did not invite judicial merits review of delegated legislation. Nor has unreasonableness ever been so regarded in this Court. As their Lordships said, a by-law would not be treated as unreasonable “merely because it does not contain qualifications which commend themselves to the minds of judges”. In Kruse v Johnson, Lord Russell CJ accorded a particular respect to the authority conferred on public representative bodies in making delegated legislation which would not necessarily inform consideration of validity today. However, he did not exclude from review by-laws “partial and unequal in their operation” or “manifestly unjust” or involving “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.

[49]   The high threshold approach to invalidating unreasonableness was reflected early in the life of this Court in Widgee Shire Council v Bonney, where Griffith CJ, after referring to Slattery v Naylor and Kruse v Johnson, said:

The existence of a power and the expediency of its exercise are quite different matters. The question of the existence of the power can always be determined by a Court of law. But, in my opinion, the expediency of the exercise of a power is not a matter for determination by a Court.

The reasoning of Isaacs J was to similar effect, although he specifically referred to the limiting case formulated in Slattery v Naylor. All the Justices treated unreasonableness, so understood, as going to power. The point was made plainly by Higgins:

Questions as to the validity of by-laws really come under the ordinary principles applicable to powers; and when it is said that a by-law is unreasonable, and therefore invalid, what is really meant is that the provisions in the by-law cannot reasonably be regarded as being within the scope or ambit or purpose of the power. The language used in Courts of equity with regard to powers seems to me to be more appropriate, and to conduce to greater clearness of thought.

[50]   This Court continued to treat invalidating unreasonableness, in relation to delegated legislation, in a limiting high threshold sense concerned with “the contemplated ambit of power”. In Williams v Melbourne Corporation, Dixon J said:

Although in some jurisdictions the unreasonableness of a by-law made under statutory powers by a local governing body is still considered a separate ground of invalidity, in this Court it is not so treated.

(citations omitted)

75. Although the plaintiff’s focus was on the fact that aerial shooting was said to be for use in any area of the KNP, that tended to ignore what was set out in clause 6.2 of the Plan (set out at [20] above). That clause made clear that all control methods would be implemented consistent with relevant animal welfare legislation, and that standard operating procedures would be developed following engagement with the Royal Society for the Prevention of Cruelty to Animals and relevant specialists as required. The Amended Plan also said that standard operating procedures would be developed that were tailored for use in the KNP.

76. In those circumstances, there was no error of law in the Minister’s decision, nor can the Minister’s decision be said to be unreasonable even to the Li standard of unreasonableness, and certainly not in terms of the test set out in Adelaide City Corporation. The decision was within the contemplated ambit of power. I have already concluded that the Minister took into account relevant animal welfare considerations when authorising the Amended Plan.

77. The complaint in these grounds was also similar to the challenge to ground 3. It was not the Minister’s task to decided how or where the aerial shooting was to take place. That is an operational matter that forms part of a consideration of the merits of the decision.

78. These grounds fail.

Ground 1   The implementation of the Amended Plan

79. Ground 1 said this:

1.   The First Defendant and/or the Second Defendant are acting contrary to law in purporting to carry out and give effect to the Plan:

a.   The method of aerial shooting being adopted by the First Defendant and/or the Second Defendant is contrary to “HOR002 - Aerial shooting of feral horses” (2011) and therefore contrary to the Plan.

b.   The method of aerial shooting being adopted by the First Defendant and/or the Second Defendant is not supported by any animal welfare assessment and/or is contrary to the animal welfare assessment performed by the Kosziusko Wild Horse Independent Technical Reference Group and is therefore contrary to the Plan.

c. The method of aerial shooting being adopted by the First Defendant and/or the Second Defendant is contrary to the Prevention of Cruelty to Animals Act 1979 (NSW) and is therefore contrary to the Plan.

d. This conduct is contrary to Section 10 of the Kosciuszko Wild Horse Heritage Act 2018 (NSW).

Submissions

80. The plaintiff submitted that the Amended Plan is to be carried out in accordance with the various requirements set out in the Amended Plan including the 2011 SOP and the NPWS Aerial Shooting SOP 2023. The plaintiff submitted that those two documents were inconsistent because the SOP 2011 said that aerial shooting should not be done if the nature of the terrain reduces accuracy, resulting in too many wounding shots, and that target horses should be mustered away from areas of dense vegetation before being shot. On the other hand, nothing was said in the SOP 2023 about shooting only in open areas and not in areas of dense vegetation.

81. The omission in the SOP 2023 was said to be deliberate because in the report of the preliminary program, the following appeared:

It is worth noting that there is also an Australian national SOP for the aerial shooting of feral horses (Sharp 2011), but this more general document was not the focus for this operation. The terrain and vegetation types typical of shooting only in open Kosciuszko National Park (see section 1.2.2) are generally thought to create challenges for aerial shooting. The national SOP do not advocate aerial shooting in sloping areas or in areas with extensive vegetation cover (Sharp 2011), two unavoidable aspects of operating in Kosciuszko National Park.

82. The plaintiff submitted that other aspects of SOP 2011 were not reflected in SOP 2023. Those concerned procedures that resulted in Scenario 1 outcomes. Nor, the plaintiff submitted, were there considerations under the PCA Act having regard to the definition of cruelty in s 4(2) of that Act. The plaintiff submitted that the shooting has not been subject to any animal welfare assessment.

83. In those ways, the plaintiff submitted, the Amended Plan could not be implemented in accordance with its requirements.

Consideration

84. Section 10 of the KWHH Act requires the Amended Plan to be carried out and given effect.

85. In my opinion, this ground of appeal fails for a number of reasons. First, the SOP 2011, which “is a guide only”, does not prohibit aerial shooting in areas of high vegetation. It allows that it might occur. Under the heading “Application” the following appears:

Aerial shooting is used to control feral horses in remote, inaccessible or rugged terrain where horses cannot be caught…

In areas of heavy cover (eg vegetated creek lines, woodlands and forest), effectiveness is limited since horses might be concealed and difficult to locate from the air.

86. Secondly, it was a guide put in place at a time when aerial shooting was not permitted in New South Wales. The SOP 2023 was specifically devised in the light of the changes to the Plan to permit aerial shooting. In some ways it is inconsistent with the development in learning that has occurred since it was adopted. For example, under the heading “Procedures” the following appears:

For aerial shooting, the initial shot to the chest is preferred since it is easier to achieve with a moving animal.

That is entirely contrary to what is contained in ITRG 2015 and in the Literature Review particularly as a result of the 2017 Hampden Survey.

87. Thirdly, in regard to vegetation, SOP 2011 and SOP 2023 are capable of being read together since SOP 2023 does not require or even authorise aerial shooting in areas of heavy cover.

88. Fourthly, the Amended Plan says:

The following actions will be undertaken for each control method available for use on wild horses in the park:

1.   Develop standard operating procedures that are tailored for use in the park.

89. The Amended Plan requires the horse population to be reduced to 3000 by 30 June 2027. That has to be done having regard to the topography and the vegetation in the KNP, hence the need for tailoring the procedures for use in the KNP having regard to what was contained in the report of the preliminary operation (at [81] above).

90. Fifthly, even if there is a measure of inconsistency between documents that are referred to as being relevant to animal welfare outcomes, implementation of the plan is not rendered invalid or unlawful by the method of implementation. In Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 Payne JA (Ward P and White JA agreeing) said:

[45] The crucial provision is s 81 of the NPW Act. The relevant parts of which are set out at [24] above. The nature and scope of the duty imposed by s 81(1) of the NPW Act, and any discretion to perform the duty imposed, are to be construed by reference to the text of s 81, considered in light of its context and purpose: SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ), [41] (Gageler J), [64] (Edelman J). The primary judge was correct to determine the nature and scope of the respondent’s duty and discretion by reference to the relevant statutory text and in light of its context and purpose.

[46] As to the text of s 81(1), the respondent is vested with a power and a singular duty to carry out and give effect to a plan of management. Here, that power and singular duty is for the Secretary to carry out and give effect to (that is, to implement) the Plan of Management for the Mimosa Rocks National Park. Section 81 does not prescribe what it means to “carry out” or “give effect” to a plan of management. It clearly does not specify that a plan of management is carried out or given effect to only if every policy and action it proposes be completed, in a reasonable time or at all.

[47] As to context, the legislative materials tend against any conclusion that the legislature intended to require the Secretary to carry out as separate obligations every “policy or action” in a plan of management. When the National Parks and Wildlife Bill 1974 (NSW) was under consideration in the Legislative Council, a member proposed an amendment which would have forbidden the authority responsible for a given protected area from granting an easement contrary to a plan of management. The Minister for Planning and Environment and Vice-President of the Executive Council refused to support the amendment, saying:

The Government is not willing to go that far. As I see the amendment […] it is adequately covered by clause 81(1) in the powers of the director to implement the plan of management. He is obliged to go to a certain stage in his basic obligation to implement the plan. (New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 October 1974, 2309) (emphasis added).

91. Sixthly, the evidence clearly establishes that an animal welfare assessment had been carried out for the preliminary program. The letter from the RSPCA dated 1 December 2023 reads as follows:

I am responding to your letter regarding observations made by RSPCA NSW Chief Inspector, Scott Meyers during the preliminary program for the aerial shooting of horses in Kosciuszko National Park, as conducted by National Parks and Wildlife Service (NPWS) in accordance with the Kosciuszko Wild Horse Heritage Management Plan under the Kosciuszko Wild Horse Heritage Act (2018).

In response to your questions, please see the following;

1.   Advise whether the RSPCA NSW was able to adequately and independently observe the preliminary program.

RSPCA NSW's Chief Inspector was able to independently observe the preliminary program for the aerial shooting of horses in Kosciuszko National Park.

2.   Advise

a.   whether the Standard Operating Procedure for the preliminary program Is consistent with best practice; and

RSPCA NSW's Chief Inspector observed the Standard Operating Procedures used by NPWS for the preliminary program of aerial shooting of horses in Kosciuszko National Park. In terms of best practice, RSPCA NSW advises that any operations ought to continue in accordance with the Standard Operating Procedures established by NPWS.

b.   whether the RSPCA NSW observed any departures from the Standard Operating Procedure during the conduct of the preliminary program.

RSPCA NSW's Chief Inspector did not observe any departures from the Standard Operating Procedures during the preliminary program for the aerial shooting of horses in Kosciuszko National Park during the two days this activity took place.

3. Advise whether the RSPCA NSW observed any non-compliance with the Prevention of Cruelty to Animals Act.

RSPCA NSW's Chief Inspector did not observe any non-compliance with the Prevention of Cruelty to Animals Act (1979) during the preliminary program for the aerial shooting of horses in Kosciuszko National Park during the two days this activity took place.

4.   Provide any other advice or recommendations In relation to future aerial control operations,

RSPCA NSW's Chief Inspector conducted first hand observations of the aerial control operations as described above and as a result has no further advice or recommendations at this time.

92. Finally, the only evidence of what has happened in relation to the carrying out of the aerial shooting is what is contained in the report of the preliminary program. The Executive Summary reads as follows:

This report describes an independent animal welfare assessment of a preliminary aerial shooting program targeting feral horses [Equus caballus) in Kosciuszko National Park. Field observations were performed by two independent veterinarians of 277 horses that were targeted for shooting over two days in November 2023. Parameters relevant to animal welfare were quantified, including the duration of procedures, and the frequency of adverse animal welfare events (including non-fatal wounding). Ground-based inspections were used for a subset of 43 horses that were assessed immediately (median of 3 minutes) after shooting. These inspections allowed examination for insensibility and death, and characterisation of the number and location of bullet wounds. Of all horses pursued, 97% were killed, with 3% escaping without being shot at. No feral horses observed were non- fatally wounded. The median time for combined helicopter pressure and pursuit was 84 seconds, and the median time to insensibility from shooting was 5 seconds. Repeat shooting was performed consistently, with an mean of 7.5 shots fired at each horse, and 98% of bullet wounds were found in the thorax. While acknowledging the preliminary nature of this assessment, animal welfare outcomes were comparable to past investigations of aerial shooting, with a notable absence of adverse animal welfare events and a comparatively high number of shots fired per animal. With respect to indirect animal welfare impacts imposed on other wild animals inhabiting the same environment, the use of lead-free ammunition eliminated the risk of lead poisoning in wildlife scavenging horse carcasses.

93. There is no evidence that the Amended Plan is being carried out contrary to law, whether the PCA Act or otherwise. The evidence is to the contrary.

94. This ground fails.

Standing

95. In the light of my conclusions about the grounds of appeal it is not strictly necessary to say anything about the two remaining issues that were argued, being the question of the plaintiff’s standing and the need for an extension of time to bring the present proceedings. However, in deference to the arguments presented, and in case this matter goes further, I will say something briefly about each of these issues.

Submissions

96. The plaintiff submitted that it had a special interest in bringing the proceedings and, as a result, has standing to do so. In support of its special interest, the plaintiff pointed to the following matters:

1. The plaintiff is a not-for-profit voluntary organisation which advocates for the right to freedom of access to KNP, and its particular connection to KNP is different from that of the public at large.

2. The plaintiff has approximately 900 members with different interests, but all are recreational users of KNP. They include horse enthusiasts, walkers, skiers, fishermen, boating enthusiasts, campers and motor vehicle drivers and rider.

3. The plaintiff’s main purpose is to protect KNP’s mountain heritage, traditions and the environment whilst providing access, equity and sustainable recreational use to all park users.

4. One of the plaintiff’s key goals is to promote the recognition and protection of brumbies within KNP and to recognise their connections to pioneering history and cultural heritage.

5. The plaintiff was integral to the preparation of the KWHH Act, and was acknowledged as such by the relevant Minister in the Second Reading Speech.

6. From time to time, including in relation to the proposed Amended Plan, the plaintiff has made submissions and gathered letters and signatures on petitions in relation to matters connected with KNP.

97. Evidence was given of these matters by Henry Filtness who is the p   resident of the plaintiff.

98. The defendants drew attention to the relationship between the KWHH Act and the NPW Act. Section 81(4) of the NPW Act provides that if the Minister has adopted a plan of management under that Part of the NPW Act no operations may be taken in relation to the land to which the plan relates unless the operations are in accordance with the plan. Section 193 of the NPW Act then provides:

(1)   Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, …

99. By contrast, s 12 of the KWHH Act excludes the operation of s 81(4) of the NPW Act, presumedly because s 10 of the KWHH Act mandates that an adopted plan must be carried out and given effect to by the Secretary. However, the defendants submitted, there is no equivalent provision to s 193 in the KWHH Act, providing an indication that the plaintiff has no standing.

100. The defendants submitted that, in any event, the plaintiff does not have a special interest that would give it standing to bring judicial review proceedings. Reliance was placed on what was said by Gibbs J in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 526-527, 530 and 531; and to what was said by Brennan J in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 74.

101. The defendants submitted that the following matters provide a strong basis for concluding that the plaintiff does not have a special interest sufficient to confer standing:

1. The plaintiff’s purposes are at a level of abstraction that bear only passing relevance to the particular subject matter of the proceedings. The 900-odd members of the plaintiff include but are not limited to horse enthusiasts. Further, the submissions made to government in relation to the management of environmental and cultural heritage values of the KNP were not concerned, with one exception, with the subject matter of the proceedings.

2. The plaintiff is not uniquely involved with governments or other organisations in achieving protection for wild horses, and there is a paucity of evidence as to its activities as an incorporated association.

3. There is a lack of evidence demonstrating a commitment to wild horse heritage values. The rally organised by the plaintiff in March 2024 to protest the closure of the KNP for aerial culling of wild horses, was principally concerned about the effect of the closure on other recreational use of the KNP.

4. The KWHH Act provides no role for the plaintiff in the preparation or monitoring of the Amended Plan.

5. There is no evidence of “concrete steps to give effect to its beliefs (as referred to in VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 and picked up in South-East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113 at [121]-[126]) concerning wild horse heritage protection such as would be demonstrated by advice, research, community engagement, interactions with NPWS, political lobbying or the development of expertise and knowledge. The defendants submitted that strong opposition to aerial shooting of wild horses is not sufficient to establish standing.

Consideration

102. In South-East Forest the plaintiff was a group founded in 2001 and incorporated in 2010, having as its objects and purposes the carrying out of research, auditing and surveys of state forests, including documenting breaches of approvals, agreements and licenses in respect of state forests, and for the purpose of producing written information about the environment, making submissions to government and conducting walking tours of state forests.

103. The question was whether the plaintiff lacked standing to restrain the Forestry Corporation from conducting certain forestry operations in state forests unless certain steps were taken to minimise the effects of such logging on some native species.

102. Acting Justice Griffiths (with whom Adamson JA and Basten AJA agreed) said this:

[123]   An applicant who attempts to bring civil enforcement proceedings seeking declaratory and/or injunctive relief in respect of unlawful conduct and does not rely on a private right or special damage to establish standing must demonstrate a “special interest” in the subject matter of the proceeding. As expressed in Kinglake at [21], standing in the context of public law “depends on the nature and extent of the relationship between the plaintiff and the subject matter of the litigation”.

[124]   This raises the question of the level of abstraction with which the subject matter of the proceeding should be identified (see Kinglake at [22]). In an environmental context, for example, is it sufficient for the applicant to demonstrate that it has an interest in the protection and preservation of the environment generally or must its interest be associated with the particular decision or conduct which is the subject of the proceeding?

[125]   Putting to one side cases where the Court is exercising a statutory jurisdiction (which may have an open standing provision or some other statutorily expressed formula for standing) and cases involving what were once described as the prerogative writs (which have their own particular and variable standing rules), the common law standing test based on the need to demonstrate a “special interest” in the subject matter of the proceeding focuses on the relative position of the applicant when compared with the broader population (see Kinglake at [29]).

[126]   The “special interest” test is not confined to proprietary, business or economic interests. But a “mere emotional or intellectual concern” is insufficient unless the applicant demonstrates that it has taken sufficient, concrete or active steps to effectuate the particular concern (see Kinglake at [76]). The need for the interest to be special or different from those held by ordinary members of the public “is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation” (see Kinglake at [60(d)]).

105. In some additional reasons of his own, Basten AJA said:

[32]   The enforcement of public duties was once thought to be a monopoly of the Attorney-General, so that any private individual seeking to take that role required the permission or “fiat” of the Attorney. That view has long since been abandoned in Australia. In Victoria v The Commonwealth and Hayden Gibbs J tartly observed, “I would, in Australia, think it somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible”. To similar effect, Sir Anthony Mason observed, extrajudicially, that Attorneys-General are “not independent of government and cannot be expected to act impartially in deciding whether proceedings should be brought against the government”. In relation to a New South Wales regulatory statute, Craig J observed in Haughton v Minister for Planning and Macquarie Generation that “the ‘gatekeeper’ for the taking of any proceedings is the very Minister whose actions are sought to be impugned as being beyond power”. As will be noted, that last observation has resonance in the present case.

[33]   It is unsurprising, therefore, that the law permits other persons to commence proceedings to enforce statutory obligations of public authorities, whether by orders in the nature of the former prerogative writs, or by way of equitable relief, and particularly an injunction.

[34]   The test now accepted as identifying the criterion for a person to commence proceedings in accordance with the general law is variously described as the existence of “special damage”, a “special interest” or a “sufficient interest”. Each of these phrases involves a level of imprecision. The underlying purpose for such a criterion has been identified in different ways.

…

[41]   In Onus, Stephen J identified the deliberately amorphous criterion of “special interest” as involving “in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter”.

[42]   This approach is also consistent with that of Brennan J in Onus, cited with approval by the joint reasons in Bateman's Bay:

A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement.

[43]   As French CJ observed in Kuczborski v State of Queensland to find that a proceeding raises a “matter” in federal jurisdiction “may not be sufficient to answer the question whether the plaintiff has standing”. And as the joint judgment in Kuczborski explained, “the established requirements as to standing helped to ensure that the exercise of judicial power is informed, as fully as possible, by the ‘concrete adverseness which sharpens the presentation of issues’”. The application of that functional approach is pertinent in the present case.

[44]   Thus, where an applicant establishes that it has the ability to muster expert resources and legal representation to sharpen the presentation of issues, the nature of the interest it must demonstrate in the subject of a justiciable dispute should not be narrowly confined.

(citations omitted)

106. In relation to the plaintiff’s standing to seek a declaration or injunction (ground 1 of the appeal) the joint judgment of Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefits Fund Pty Ltd & Anor (1998) 194 CLR 247; [1998] HCA 49 said:

[24]   Writing extrajudicially, Sir Anthony Mason has said that:

[E]quitable relief in the form of the declaration and the injunction have played a critical part in shaping modern administrative law which, from its earliest days, has mirrored the way in which equity has regulated the exercise of fiduciary powers.

[25]   In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration. There is a public interest in restraining the apprehended misapplication of public funds obtained by statutory bodies and effect may be given to this interest by injunction. The position is expressed in traditional form by asking of the plaintiff whether there is “an equity” which founds the invocation of equitable jurisdiction.

107. Similarly, in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381 the joint judgment of Kiefel CJ, Gageler and Gleeson JJ said at [62]:

Each of Mr Davis and DCM20 has a “sufficient material interest” to seek such a declaration in relation to the particular decision which he or she impugns. That is so notwithstanding that neither has a legal right or legally protected interest which would be vindicated by the declaration and that neither had an interest which attracted any obligation of procedural fairness in the process which resulted in the making of the impugned decision. The sufficiency of their respective interests arises from the fact that it would follow from the declaration of right that their request for an exercise of the power conferred by s 351(1) of the Act is yet lawfully to be finalised. It could not be said that the declaration would produce no foreseeable consequences for the ministerial and departmental respondents or for them.

(citations omitted)

108. In my opinion, the plaintiff has a special interest sufficient to give it standing to seek the relief contained in the amended summons for the following reasons.

109. First, the group has been in existence for more than 20 years and its purposes relate generally to the welfare and heritage of the KNP, albeit, largely for the benefit of the different and varying interests of its members. Some of those interests relate to the care of the environment of the KNP, and the wild horses are an integrally related issue to the KNP’s environmental status and wellbeing.

110. Secondly, in the Second Reading Speech in relation to the Kosciuszko Wild Horse Heritage Bill 2018 (NSW) Mr Barilaro, the Minister for Regional NSW, said this:

I acknowledge the work of Peter Cochran for leading the charge, for the community debate that he has been part of and for rallying the community to get behind this issue. Peter has been accompanied by many other people, some of whom I will name because it is right to record their names in Hansard for future generations to identify as people who fought for the right of brumbies to be recognised. They include Leisa Caldwell, Rebecca Atkinson, Jack French, Deanne Kennedy, the late Clive Edwards, Richard Armstrong, Jenny Boardman, Ted and Helen Taylor; Paul Mclver; Henry Filtness, Kylee Hepburn, members of the Snowy Mountains Bush Users; Group; the Snowy Mountains Horses Riders Association and many volunteer workers across the Snowy Mountains. They have all been on this long journey, which for some has extended over two to four decades. For others like me—a Johnny-come-lately - the journey has been part of my life for the past seven years.

111. It should be noted that all of the people mentioned are members or former members of the plaintiff and Peter Cochran was the president of the plaintiff at the time. The acknowledgment by the Minister of the plaintiff’s involvement in matters which led up to the making of the KWHH Act is significant in a consideration of whether the plaintiff has a special interest.

112. Thirdly, the plaintiff was identified as what is described as a “major stakeholder” both in an email dated 8 August 2023 seeking submissions on the draft Amended Plan, and in a list of major stakeholders as part of the material in the Second Brief to the Minister. That appears to me to show the plaintiff was regarded by the second defendant as an organisation of some significance specifically in relation to the Plan and its proposed amendment.

113. Finally, I do not think that is of any significance that the KWHH Act does not contain any equivalent to s 193 in NPW Act. That provision might be regarded as one that widened the scope of the common law enabling a personal group with a special interest to seek some form of civil relief in relation to legislation and its enforcement and observation. It does not suggest that a person or group with a ”special interest” is, by implication, excluded from standing under the KWHH Act. Common law principles of standing still apply.

Extension of time

114. The decision of the Minister was made on 23 October 2023. The proceedings commenced on 7 May 2024. To the extent that the claims are brought pursuant to Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) they are out of time. Rule 59.10 requires proceedings for judicial review to be commenced within three months of the date of the decision although sub-r (2) enables the Court to extend the time. Sub-rule (3) provides:

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following -

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

115. As far as ground 1 is concerned, discretionary relief is being sought by way of a declaration and an injunction to halt the aerial shooting. Equitable principles of laches and delay are relevant considerations.

Submissions

116. The plaintiff submitted that the following matters justify an extension of time in relation to grounds 3 to 5:

1. The merits of those grounds;

2. The validity of the Plan is a matter of significant interest to the plaintiff and its members;

3. No prejudice would be cause to the defendants in granting an extension of time. In fact, the delay in bringing the challenge has worked to the benefit of the defendants because they have been able to remove some 5,000 to 6,000 horses from KNP using aerial shooting;

4. The plaintiff was not aware that aerial shooting would commence until around February 2024, and the plaintiff did not become of the three-month limitation period in r 59.10 until February 2024;

5. The issue of aerial shooting is a matter of significant public interest and concern.

117. The defendants’ principal submission in relation to an extension of time was that by reason of the delay the aerial control operations had been undertaken over a lengthy period. The defendant also submitted that Mr Filtness knew that the Amended Plan had been made at the end of October 2023 and that the only surprise he had about the commencement of the operation was the extent of the area of the KNP in which it was employed. The defendant submitted that there was no explanation for the delay after the plaintiff was advised of the time limitation in February 2024 before proceedings were commenced in May 2024.

Consideration

118. In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114, Meagher JA (with whom Macfarlan and White JJA agreed) said:

[18]   The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice: per McHugh J in Gallow v The Honourable Justice Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459. Accordingly as his Honour later observed in Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [15]:

An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.

[19] In addition to the factors mentioned in r 59.10(3), matters that ordinarily will fall for consideration include the length of any delay, the reason for it and whether the applicant has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing) citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].

119. I accept that the plaintiff has been very tardy in commencing these proceedings, especially since the time they became aware that the aerial shooting had actually commenced. Taking into consideration the matters in r 59.10(3) and the additional matters identified in Gilmore Finance, two things are significant enough to justify an extension of time being given. First, the matter is both a matter of significant public interest and raises sufficiently arguable issues that an extension should not be refused. Secondly, not only is there little or no prejudice to the defendants, but the delay has been of benefit to the defendants in the interim of carrying out the aerial shooting and thereby reducing the horse population pending the commencement of the proceedings.

120. Since a declaration and an injunction is sought in relation to ground 1, notwithstanding that the remedies are sought to uphold what is said to be compliance with both statute and delegated legislation, the Court has an ultimate discretion whether to grant such remedies. Delay in seeking the remedies is a consideration in that discretion even if equitable concepts of laches and delay are not applicable. For the same reasons that I would extend time under r 59.10, I would also not refuse relief in relation to ground 1 by reason of the delay in commencing the proceedings.

Conclusion

121. Accordingly, I make the following orders:

1. Extend time for the plaintiff to commence the proceedings to 7 May 2024.

2. Dismiss the amended summons.

3. The plaintiff is to pay the defendants’ costs.

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Decision last updated: 21 August 2024