Maguire v Parks Victoria [2020] VSCA 172

Court of Appeal (Vic)|2020-06-25|Before: Mr J, Ferguson CJ, Kyrou JA, Niall JA

JUDICIAL REVIEW - Standing - Whether applicant had standing to challenge decision on basis of lack of public consultation - Applicant asserted that he would participate in public consultation - Whether interference with claimed amenity sufficient to support standing - Absence of a special interest - Standing not established - Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; , applied - Leave to appeal refused.

1 In May 2020, the applicant commenced a proceeding in the Trial Division seeking declaratory and injunctive relief to restrain Parks Victoria from implementing a decision to commence shooting feral horses, also called brumbies, in the Alpine National Park (the 'National Park'). The horses are an introduced species and, Parks Victoria believes, a threat to the fragile ecosystems within the National Park. Parks Victoria has statutory responsibility for the management of the National Park.

2 The applicant owns land adjoining the National Park and has a strong attachment to the horses. He believes that the ancestors of the current herd were originally bred on his land and some horses continue to graze there.

3 The decision to cull the horses was taken within a statutory and policy framework that comprises the National Parks Act 1975 (the 'National Parks Act'), the Parks Victoria Act 1998 and its successor the Parks Victoria Act 2018, a management plan established under the National Parks Act and other policy documents. Although the threat caused by the horses has been understood for some time and the need to control them is well recognised, the established method of control was mainly through trapping and removal. Shooting has not previously been used.

4 In 2017, Parks Victoria published the Feral Horse Strategic Action Plan 2018-2021 (the 'Action Plan'), which identified the pressing need to control feral horses and the various methods that might reduce the number of horses within the National Park. It identified shooting as an available method but stated that it would not be used during the three-year period of the strategic plan, pending evaluation of the success of trapping and other capture methods. It said that further public consultation and dialogue would be undertaken on techniques such as shooting before they were adopted.

5 In 2018, a proceeding was commenced in the Federal Court of Australia by an organisation called the Australian Brumby Alliance Inc (the 'Brumby Alliance'), seeking to restrain the implementation of the Action Plan on the basis that removal of horses gave rise to a significant impact on the National Heritage values contained within the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The present significance of that proceeding is that pending its determination, full implementation of the Action Plan was halted. The Federal Court proceeding was dismissed on 8 May 2020.[1]

6 In the intervening period, Parks Victoria concluded that the number of feral horses had increased considerably and the National Park had been extensively damaged by bushfire. On 8 May 2020, without further consultation, Parks Victoria announced that it would immediately implement culling feral horses within the National Park by shooting.

7 In response, on 18 May 2020, the applicant commenced his proceeding in the Trial Division of this Court. Relevantly, he contended that Parks Victoria was under a legal obligation to engage or consult with the community before deciding to introduce shooting. He said that the obligation arose pursuant to a Statement of Obligations made by the responsible Minister under the Parks Victoria Act 2018.[2]

8 The proceeding was heard by a judge in the Trial Division on 26 May 2020. By order, made on 29 May 2020, the judge dismissed the proceeding and gave detailed reasons.[3] He held that the applicant lacked a special interest in the subject matter of the proceeding and accordingly did not have standing to commence the action. However, the judge went on to consider the applicant's grounds of review and said that he would have dismissed the grounds on their merits in any event.

9 On 10 June 2020, the applicant commenced an application for leave to appeal, which was heard by this Court on 19 June 2020. Notwithstanding the compressed timeframe in which both the proceeding at first instance, and the application for leave to appeal were prepared, the parties and the judge are to be commended on the efficiency with which the proceeding was heard. The quality of the reasons for judgment and of the written and oral submissions on the application for leave to appeal meant that the Court was in a position to determine the application on the day of the hearing. At the conclusion of argument, the Court made an order refusing leave to appeal with costs on the basis that the applicant did not have standing to bring or maintain the proceeding.

10 The Court indicated it would provide its reasons for making the order at a later date. These are our reasons for refusing leave to appeal for want of standing.

11 Parks Victoria is established by s 5(1) of the Parks Victoria Act 2018, which commenced operation on 12 September 2018. It repealed the Parks Victoria Act 1998 and abolished the predecessor body established by that Act which was also called Parks Victoria.[4]

12 The objects of Parks Victoria in s 7(1) of the Parks Victoria Act 2018, to which it must have regard in performing its functions, exercising its powers and carrying out its duties,[5] are to:

(a) protect, conserve and enhance Parks Victoria managed land, including its natural and cultural values, for the benefit of the environment and current and future generations; and

(b) recognise and support traditional owner knowledge of and interests in Parks Victoria managed land; and

(c) provide for and encourage the community's enjoyment of and involvement in Parks Victoria managed land; and

(d) improve the community's knowledge and appreciation of Parks Victoria managed land; and

(e) contribute to the wellbeing of the community through the effective protection and management of Parks Victoria managed land; and

(f) contribute to the achievement of State and regional land management outcomes as far as is consistent with the effective protection and management of Parks Victoria managed land.

13 The functions of Parks Victoria set out in s 8(1) of the Parks Victoria Act 2018 include:

(a) to control and manage Parks Victoria managed land, in a manner that protects, conserves and enhances the land and in a manner which provides for the land to be appropriately used, enjoyed and appreciated, including doing all or any of the following -

(i) developing management and other plans and strategies for Parks Victoria managed land in consultation with the community;

...

(iv) providing opportunities for the community to enjoy and appreciate Parks Victoria managed land and providing facilities, information and services to support that enjoyment and appreciation;

...

(g) to promote good relations between Parks Victoria and the community;

...

14 The responsible Minister may give directions to Parks Victoria in relation to the performance of its functions or the exercise of its powers.[6]

15 The objects of the National Parks Act include the preservation and protection of the natural environment and indigenous flora and fauna and the responsible management of land in national parks.[7]

16 Pursuant to s 17(2) of the National Parks Act, Parks Victoria 'has the control and management of each national and State park and must' (amongst other things):

(a) ensure that each national park and State park is controlled and managed, in accordance with the objects of this Act, in a manner that will -

(i) preserve and protect the park in its natural condition for the use, enjoyment and education of the public;

(ii) preserve and protect indigenous flora and fauna in the park;

(iii) exterminate or control exotic fauna in the park;

...

(d) prepare a plan of management in respect of each national park and State park, which may be included as part of a land management plan within the meaning of Division 4 of Part 3 of the Parks Victoria Act 2018.

17 It is common ground that the feral horses in the National Park constitute 'exotic fauna' for the purposes of s 17(2)(a)(iii) of the National Parks Act.

18 Within the above statutory framework, there are three critical documents: the statement of obligations made under s 31 of the Parks Victoria Act 2018; the management plan made under s 17(2)(d) the National Parks Act;[8] and the Action Plan.

19 Section 31 of the Parks Victoria Act 2018 provides that the responsible Minister may make a statement of obligations that sets out the obligations that Parks Victoria has in performing its functions and exercising its powers in relation to lands it manages. Sub-section (2) provides that a statement of obligations may include provisions for or with respect to various matters, including: 'collaboration or consultation with other government bodies, traditional owners, non-government bodies and the community.'[9]

20 Section 37(1) of the Parks Victoria Act 2018 provides that Parks Victoria must comply with a statement of obligations.[10]

21 On 27 October 2018, the responsible Minister made a statement of obligations pursuant to s 31 (the 'Statement of Obligations'). The Statement of Obligations sets out obligations under various headings, including 'Overall Goal', 'Guiding Principles', 'Engagement with the Minister' and 'Engagement with the Community'. The 'Overall Goal' is described in the statement as follows:

In performing its functions and exercising its powers, Parks Victoria must work to be a best practice park management organisation, striving for excellence in protecting and managing Victoria's outstanding system of parks and reserves, engaging and working effectively with Traditional Owners, other land managers and the broader community, providing high quality opportunities for visitors to enjoy the parks and reserves, and contributing to the state's visitor economy.

22 Clause 5 deals with 'Engagement with the Minister'. Parks Victoria must 'provide timely advice to the Minister on Parks Victoria activities, issues and plans' and 'consult the Minister in a timely manner on its efforts to enhance visitor access to parks, increase visitation and stimulate Victoria's visitor economy'.

23 'Engagement with the Community' is dealt with in cl 6, which provides:

6.1 Parks Victoria must undertake timely and inclusive engagement with the broader community, community and Friends groups, and key stakeholders to effectively support the preparation of its park management strategies and plans and the delivery of its programs and projects. In its engagement, Parks Victoria must have regard to the principles set out in the Victorian Auditor-General's Office publication Public Participation in Government Decision-making (May 2017).

6.2 Parks Victoria must implement programs to involve volunteers in parks and other areas which it manages.

24 Clause 7 deals with 'Collaboration' and includes the statement that 'Parks Victoria must work closely and collaboratively' with the relevant government department.

25 Pursuant to s 17(2)(d) of the National Parks Act, Parks Victoria prepared the Greater Alpine National Parks Management Plan dated August 2016 (the 'Management Plan'). The introduction of the Management Plan states:

The plan addresses the intent of future management. The plan articulates management outcomes for the parks over a 15-year time frame, starting with a vision for the area and zoning (chapters 2 and 3). Based on these, a series of goals have been determined and Strategies provided to direct management activities towards achieving those goals (chapters 4 to 9). Goals are statements of what management and the community are seeking to achieve for specific areas or aspects of park management (figure 1.2). A brief summary of background information and issues is included for each section of chapters 4 through 9.

26 Chapter 4 the Management Plan, headed 'Protecting the natural environment' records that: 'feral horse impacts are major and increasing in the Eastern Alps area'. It summarises the management goals for the ecosystems as being: 'to maintain and improve their ecological character, extent and diversity for the long-term protection of dependent species and communities and to reflect the Traditional Owners' signs of healthy County.' Amongst the eight strategies identified as the highest priority for urgent action is humane feral horse control with an integrated approach for public land in the Victorian Alps.

27 In a section dealing expressly with feral horses, the Management Plan records '[t]he high level of public interest and concern over feral horse management' and states that: '[t]he success of feral horse management will depend largely on whether the community is well informed about the issues and find[s] humane and effective control methods acceptable.' It notes that there are two disjunct populations of feral horses in the Victorian Alps. The largest population is in the Eastern Alps, continuing into Kosciuszko National Park in New South Wales. That population was recorded as approximately 2,350 horses in 2014. A separate survey conducted in 2015 noted a smaller, separate population of around 63 horses in the Bogong High Plains/Cobungra area. We note that the applicant's property is located near the Bogong High Plains/Cobungra area.

28 The Management Plan notes a range of different techniques for managing horses, each with advantages and limitations. The methods include exclusion fencing, fertility control, and trapping and mustering. The Management Plan notes that ground or aerial shooting had some support as humane and effective techniques, particularly over extensive areas of rugged terrain. However, it was also noted that negative public perceptions around the use of aerial shooting of horses has influenced decision-making in south-eastern Australia. On that topic, it continues: '[a]n approach involving trapping, mustering and shooting may be able to provide meaningful outcomes for the environment, and subject to community consultation, potentially acceptable management of Victoria's feral horses.' It then states:

Feral horse integrated approaches will guide delivery of humane feral horse control programs. Parks Victoria undertook initial community consultation on feral horse management in the Alps in 2012-13. Expert advice on potential approaches has been sought from a skills based technical reference group established to provide specialist environmental, cultural, social and animal welfare advice on management strategies and their implementation. Victoria will continue to consider all control methods and select the most humane and effective ones in consultation with the community.

29 On the present application, it was not argued that the Management Plan imposed a legal obligation on Parks Victoria that was breached by the decision to commence shooting. As will appear, the only source of obligation relied on was that contained in the Statement of Obligations.

30 In 2017, Parks Victoria published the Action Plan. The judge described it as: 'one of several single issue or thematic subsidiary strategies, action plans, policies and guiding documents which sit under the Management Plan'.[11]

31 The executive summary of the Action Plan records that:

[Horses'] hard hooves can cause serious damage to alpine, subalpine, montane and floodplain environments. This includes the destruction of habitat critical to many threatened plant and animal species, damage to waterways, degradation of fragile vegetation, and soil disturbance that results in erosional compaction.

32 It goes on to say that a reduction in the abundance of feral horses in Victoria's national parks is necessary to protect natural and cultural values and meet obligations under relevant statutes.

33 The plan sets out how feral horses are to be managed in the National Park.

34 The plan identifies the following five key conservation objectives: reduction of damage to alpine wetland and other vegetation communities by expanding and improving feral horse control; improving knowledge of the relationship between feral horse impacts on environmental condition; protection of Aboriginal cultural heritage; prevention of new populations of feral horses being established; and removal of isolated populations of feral horses where feasible.

35 Proposed actions include the reduction of the abundance of feral horses in the National Park and the prevention of new populations being established. The plan provided for scaling up rehoming capacity and improving the capability and capacity of trapping contractors.

36 The plan posited an initial target of up to 1,200 horses being captured over three years as an aspirational goal to control population growth and reduce abundance. Following implementation of the initial three-year strategy, the extent of environmental protection delivered would be reviewed and, subject to the review, an adaptive approach may need to be applied and more horses may need to be removed.

37 The Action Plan provides an overview of the available control methods in relation to feral horses. Trapping is identified as 'the preferred primary control method'.

38 Ground and aerial shooting is identified as one of the control methods which can provide specific and humane ways of managing feral animals. As to the application of that method, the Action Plan states as follows:

In inaccessible remote areas where trapping, roping or mustering (and subsequent horse transport) are not possible or are unlikely to be humane, ground or aerial shooting (or both) may be the most feasible horse control option. It has also been proposed by a number of stakeholders and welfare organisations as a more humane approach than other methods, in terms of minimising animal stress, time to death and cost. However, community consultation has revealed a polarized perception of the technique with limited public support.

To date, ground or aerial shooting has not been used to remove free-ranging feral horses by public land managers in Victoria due to public perceptions and preference for passive techniques such as trapping.

Will not be used to control free-ranging feral horses. In year three of this plan an evaluation of the success or otherwise of trapping and other capture methods will commence. If results demonstrate that the use of additional techniques may be required to achieve adequate protection of the environment from feral horses, further public consultation and dialogue will be undertaken on techniques such as shooting of free-range animals. [12]

39 The Action Plan provides that horses within or close to trap yards may need to be humanely put down by shooting under strict protocols. The circumstances identified are:

Where the horses are injured, ill, of very poor body condition and/or too aged for successful rehoming
Where remote trap locations are established and transporting horses from these areas is likely to be inhumane
Where rehoming opportunities have not been secured. [13]

40 The Action Plan is not a statutory instrument. It was not made under a specific statutory power. Again, the applicant does not look to the Action Plan for the source of any legal obligation which he would seek to enforce.

41 The applicant submits that the Action Plan sets out how Parks Victoria intended to address feral horses in the National Park within the relevant three-year period. He says that a draft of the Action Plan was provided for consultation and engagement and it expressly stated that Parks Victoria would not utilise shooting of horses during the three-year period and in any case not without further public consultation. He says that the decision announced in May 2020 constituted a significant and unforeseen departure from that strategy, which required consultation under the Statement of Obligations.

42 As noted, soon after the Action Plan was released, the Brumby Alliance brought proceedings in the Federal Court against Parks Victoria seeking injunctions under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to restrain Parks Victoria from trapping or removing brumbies in the Bogong High Plains in the National Park. Undertakings given by Parks Victoria in that proceeding prevented the full implementation of the Action Plan over two of the three years of its operation.

43 On 8 May 2020, the Federal Court dismissed the proceeding. On the same day, Parks Victoria issued a public statement welcoming the judgment of the Federal Court. That statement said that: 'Parks Victoria has an obligation to reduce the abundance of feral horses in Victoria's national parks as necessary to protect natural values and meet legislative obligations.' It continued:

Over the past 18 months, the injunction led to Parks Victoria suspending the majority of the alpine feral horse management operation. Trapping and rehoming programs that were previously implemented were put on hold, subsequently limiting the effectiveness in significantly reducing the feral horse population and environmental damage to the fragile wildlife, plants and habitats in the Victorian Alps.

During this period, a comprehensive aerial survey across the Australian Alps found a significant increase in feral horse numbers, 2 to 3 times higher than in the previous survey (estimates rising from 9,000 to 24,000 horses over five years). Additionally, the bushfires over the 2019-20 summer have greatly impacted large areas of the Victorian Alps, resulting in significant loss of threatened native wildlife and ecosystems. Remaining unburnt areas are being severely overgrazed and damaged by large numbers of feral horses.

Given the current circumstances, Parks Victoria will be commencing an additional technique to control horses. Small-team operations will be deployed into high-conservation priority locations where ground-based professional shooters will use thermal imaging and noise suppressors to cull free-ranging feral horses, under strict animal welfare protocols with expert equine veterinary oversight. This will complement the current bushfire recovery works that have removed more than 1,300 deer from fire impacted areas in eastern Victoria.[14]

44 In his amended originating motion, the applicant sought an injunction to restrain Parks Victoria from implementing what he called the 'kill policy' until such time as it complied with:

(b) the consultation obligation under the Management Plan.

45 The 'kill policy' is described as the decision of Parks Victoria to use an 'additional technique to control horses [within the National Park], namely, to shoot them dead'.

46 The applicant no longer contends that an obligation to consult arises from the terms of the Management Plan but confines his case to an obligation under, and in breach of, cl 6.1 of the Statement of Obligations.

47 The applicant swore two affidavits in support of his originating motion.[15] They constitute the evidentiary basis for his claim to standing.

48 In his first affidavit, the applicant deposed that he is the owner of Mount Bundarrah Station, which abuts the National Park. He says that he owns a horse adventures business 'and a feature of our business is the wild brumbies that our guests photograph and take videos of.' He says that as result of injury he does not currently hold a licence to operate a business in the National Park but anticipates renewing his licence in the near future.

49 He says that the brumbies are a material contributing factor to his income, they graze on his land, he feeds them with hay when required and will provide veterinary support if required. He is a member of the Brumby Alliance. He says that he cares for the welfare and wellbeing of Brumby horses materially and emotionally. He says that the ancestors to Bogong Brumby horses were bred on and originated on his land.

50 He says that Parks Victoria consulted with him on the Action Plan but he has not been consulted on the decision to adopt shooting as an additional means of control.

51 In his second affidavit, he says that if there is public consultation following this proceeding, he intends to participate in it and make clear to Parks Victoria that he does not want it to implement any 'kill policy'.

52 The judge identified six questions which he considered arose for consideration:

Question 1: Does Mr Maguire have standing to bring the proceeding?

Question 2: Did cl 6.1 of the Statement of Obligations impose an obligation on Parks Victoria to consult with the community before making the decision?

Question 3: Is the Management Plan an 'enactment' within the meaning of s 38 of the Interpretation of Legislation Act 1984?

Question 4: Did the Management Plan impose an obligation on Parks Victoria to consult with the community before making a decision?

Question 5: If Parks Victoria was obliged to consult with the community before making the decision, has it failed to comply with that obligation?

Question 6: If Mr Maguire has made out his grounds for relief, should relief be refused?

53 Before the judge, the applicant relied on three bases to establish standing. The first basis was that if there is to be public consultation following the proceeding, he intends to participate in such consultation and to make clear that he does not want Parks Victoria to 'implement any kill policy'. The second basis was that because of the location of his property, abutting the National Park, he enjoyed a particular amenity which was specific to him and not enjoyed by the general public. The third basis was that, by grazing on his property, it may be inferred that the brumbies reduce the fuel loads on his property, thereby engaging in a useful activity on his land.

55 The judge identified the relevant test as that articulated by Gibbs J in Australian Conservation Foundation v The Commonwealth, namely, that the plaintiff must show a special interest over and above 'an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law'.[16] The judge also referred to the statement by Brennan J in Onus v Alcoa of Australia Ltd, that a plaintiff 'must be able to show that success in the action would confer on him ... a benefit or advantage greater than [that] conferred upon the ordinary member of the community; or ... relieve him of a detriment or disadvantage to which he would otherwise have been subject ... to an extent greater than the ordinary member of the community.'[17]

56 The judge rejected the first basis for two interrelated reasons. First, he applied the observation of Brennan J in Onus v Alcoa that: '[a] plaintiff does not acquire standing to sue for relief merely by proclaiming before he sues that he has an interest in obtaining relief.'[18] In other words, more is required than an interest in the successful outcome of the litigation itself. Secondly, applying the principle enunciated by Gibbs J in ACF v Commonwealth, the opportunity to be consulted on a decision to commence culling would place the applicant on no different a footing than any other member of the community.[19]

57 The judge addressed the second and third bases together. His Honour considered that they amounted to a contention that the applicant derived a special benefit or 'amenity' from the feral horses because they graze on or near his land, he feeds them and provides veterinary care when required and they assist in reduction of fuel load. The judge concluded that these aspects did not give standing to the applicant. That was because the decision he seeks to challenge is not a decision to remove feral horses from the National Park but to cull part of the herd. He reasoned that the claimed amenity was affected by the decision to remove rather than the mode of removal.[20] That being so, it was not a special interest in the subject matter of the decision which was confined to the latter aspect. He said:

If he was successful in requiring Parks Victoria to consult in relation to the decision, that outcome would not affect his interests in the amenity and other benefits provided by the grazing of the horses on his property because the proceeding is not concerned with the decision by Parks Victoria to remove the horses from the Bogong High Plains area. The mere fact that horses might persist in low numbers in the Bogong High Plains area after the implementation of the strategy for their removal because of 'potential re-invasion from adjacent crown (sic) lands, possible illegal release and/or escape of horses into the park', as noted in the Action Plan, does not alter this analysis.[21]

58 In the result, the judge found that the applicant did not have standing to bring the proceeding. It followed that the proceeding could not be maintained and was dismissed.

59 Against the possibility that his finding as to standing might be in error, the judge went on to consider the applicant's grounds of review. He rejected them. Given our conclusion on standing, it is not necessary to address how the judge dealt with the grounds of review.[22]

60 Initially the applicant relied on six grounds of appeal. However, he abandoned the first ground. Grounds 2 to 4 concern the question of whether cl 6.1 of the Statement of Obligations imposed an obligation on Parks Victoria to undertake 'timely and inclusive engagement' before making its decision to cull feral horses by shooting, which it failed to do, rendering the decision unlawful. The full terms of those grounds are as follows:

The primary judge should have assessed whether in accordance with s 6.1 of the [Statement of Obligations], [Parks Victoria] had undertaken 'timely and inclusive engagement ... to effectively support the preparation of its park management strategies and plans and the delivery of its programs and projects' in connection with the decision.
The learned primary judge erred in failing to find that in making the decision [Parks Victoria] was, by reason of s 6.1 of the [Statement of Obligations], required to undertake timely and inclusive engagement to effectively support the preparation of its park management strategies and plans and the delivery of its programs and projects, and had not undertaken that engagement in respect of the decision.
The learned primary judge should have found that by [r]eason of [Parks Victoria]'s failure to undertake the relevant engagement, the decision was unlawful.

61 The final two grounds of appeal challenge the judge's conclusion that the applicant did not have standing to commence the proceeding. They do not identify any specific error and assert that the judge was in error in not finding that the applicant had a special interest in the subject matter of the litigation.

62 It is only if the applicant can establish standing that grounds 2 to 4 arise for decision. It is therefore desirable to address standing first.

63 The rule for standing where a private person or entity seeks to commence a proceeding to enforce a public right or duty was established in ACF v Commonwealth. In that case, Gibbs J held that if no private right is interfered with, a plaintiff has standing to sue only if it has a special interest in the subject matter of the action. His Honour continued:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[23]

64 In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the High Court observed that the special interest test was flexible and that its content in a given case will be dictated by the nature and subject matter of the litigation.[24] That observation was further explained by Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd who said:

This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law.[25]

65 The special interest in the subject matter of the proceeding is not limited to a legal, proprietary or financial interest that the private law protects. In Onus v Alcoa, which concerned the standing of members of the Gournditch-jmara people to restrain the construction of a smelter that would threaten indigenous relics, Brennan J said:

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.[26]

66 In Kuczborski v Queensland, in the course of an examination of the principles applicable to standing to challenge the validity of a law, Crennan, Kiefel, Gageler and Keane JJ emphasised the importance of standing to keeping the exercise of judicial power within proper bounds - the resolution of legal controversies between parties that are sufficiently affected by the relevant subject matter of the litigation.

67 After referring to the holding in Bateman's Bay that a plaintiff had standing where its interest was 'as a matter of practical reality ... immediate, significant and peculiar to [it]',[27] their Honours continued:

The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect 'the legal situation of persons subject to the jurisdiction of the court' serves to maintain the ordinary characteristics of judicial power.

It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law.[28]

68 Parks Victoria submitted that, in addition to a special interest, a plaintiff must show that the interest is imperilled or put at risk by the decision that is sought to be challenged. It relied on a decision of Spender J in the Federal Court in Queensland Newsagents Federation Ltd v Trade Practices Commission.[29]

69 In that case, the applicant sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the 'ADJR Act') of an authorisation granted by the Trade Practices Commission and a decision or conduct relating to it. This was opposed on the basis that the applicant lacked standing. Under the ADJR Act, 'a person who is aggrieved' by the decision or conduct had standing to commence a proceeding.

70 Spender J referred to a passage from the decision of Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs, in which Ellicott J said that the phrase person aggrieved should not be narrowly construed and that it extends, at least to:

... a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases however the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties.[30]

71 Drawing on that observation, Spender J noted that a person with a mere intellectual or emotional interest does not have a special interest and continued:

... not only must there be the existence of a special interest in a decision, but also a person must show that the decision sought to be challenged will in some way expose that interest to peril.[31]

72 It is on that observation which Parks Victoria relies. We would not apply the additional requirement identified by Spender J as if it were a discrete additional requirement.

73 That is so for three reasons. First, Spender J was dealing with a statutory expression of the standing rule and not the general law test. The two tests, although having some common features, are not entirely coterminous. In Allan v Transurban City Link Ltd, a case concerning the Development Allowance Authority Act 1992 (Cth), which gave standing to a person who was 'affected by a reviewable decision', the High Court emphasised that it was necessary to determine standing: 'by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing"'.[32] The reverse also holds true: the meaning of statutory terms cannot simply be applied to the general law. Of course, the nature of the interests that might be relevant to establish standing is likely to be similar under both statutory formulations and the general law. The two lines of authority are not entirely separate or discrete.[33]

74 Secondly, a plaintiff may seek to bring proceedings in relation to a decision in order to vindicate or enforce a decision of public interest and, in such a case, a requirement that the plaintiff be imperilled by the decision may be entirely inapt. The imposition of such a rule in every case would hark back to the 'special damage' requirement in Boyce v Paddington Borough Council,[34] which was rejected in ACF v Commonwealth.

75 Thirdly, and most importantly, the High Court has established the test that this Court must apply and it is the special interest test. It is not for this Court to supplement that test by an additional or different hurdle. The formulation adopted by Spender J, while explicable by its statutory context, does not reflect the test we must apply.

76 That said, the special interest test plainly requires an intersection between the interest identified by the plaintiff and the decision that is sought to be impugned in the proceeding. It will require an assessment of how the interests of the plaintiff are liable to be affected by the exercise of power. That will be especially so where the relevant interests belong to an individual and the relationship between the two takes the form of economic or personal impacts. On other hand, where the interest sought to be protected by the plaintiff is the public interest, there is less utility in asking whether the interest of the plaintiff is affected. In this case, the applicant claims that the amenity enjoyed by him as an adjoining landowner will be interfered with, and this gives him a special interest, peculiar to him. It is relevant to assess how the decision might intersect with that interest, having regard to the legal and practical effect of the decision. That is because the test revolves around the nature of the relationship between the plaintiff and the subject matter.[35] It may be necessary to assess whether the identified relationship is too remote or tenuous.[36] However, it is to be remembered that standing is a threshold requirement and should not depend on whether the grounds might be made out or relief withheld on a discretionary basis.

77 In considering whether a plaintiff has standing to challenge the exercise of a statutory power, it is important to examine the statutory context to assess whether and to what extent the interests of the plaintiff are accommodated in a way that might support standing.[37]

78 Self-evidently, if a statutory provision required a decision maker to consult a specific entity, person or class of persons, that fact would go some way to establish standing for the purposes of enforcing the obligation. Similarly, a statutory provision that was designed to protect the interest of identified persons or classes of persons or which required the decision maker to take into account the interests of such persons would also point towards standing being established.

79 In other cases, the nature of the statutory power or its exercise will intersect with the interests of a particular section of the community and make it easier to discern the special interest of the plaintiff. For example, in Shop Distributive, the union representing shop employees had standing to challenge an administrative decision made under legislation to lift a prohibition on Sunday trading hours. The High Court held that although the change affected the whole community in various ways, shop assistants had an interest that was different and greater than that of other members of the public.[38] The special interest existed because any alteration in trading hours necessarily affected the terms and conditions of their employment.[39]

80 Although the statutory context is important, it does not control standing. A plaintiff may have standing to challenge the exercise of power because of its practical or legal effect even though the interests of the plaintiff do not coincide with the purpose of the statutory scheme. For example, a person whose business or economic interests are threatened may challenge a decision that is made entirely for public health, safety or environmental reasons. As Doyle J observed in a statutory standing context:

In determining the nature of a plaintiff's interest in the relevant subject matter and decision, and the impact or effect of the decision upon the plaintiff, it will often be necessary to have regard to the legislation under which the impugned decision is made, and the legal effect and operation of the decision, in order to determine how the interests of the applicant for review may be affected or aggrieved. On the other hand, a majority of the High Court in Argos Pty Ltd v Corbell cautioned against going further and attempting to divine the breadth of interest that will suffice to establish standing from the purpose or objects of the relevant legislation. In other words, while the relevant legislation will inform, if not determine, the nature of the plaintiff's interest, it does not determine whether that interest is sufficient to establish standing. For example, in Argos Pty Ltd v Corbell, it was held that while the applicant supermarket operators' private interests in the relevant subject matter were not a matter that the legislation required (or permitted) to be taken into account in making the relevant decision, this did not mean that those persons were not sufficiently affected by the operation of the decision to give them standing to challenge the lawfulness of the decision on grounds that were relevant to its validity.[40]

81 It is thus necessary to identify the nature of the claim and the relief sought.

82 To the extent relevant to the present application, the applicant contends that, in deciding to cull, Parks Victoria was bound by cl 6.1 of the Statement of Obligations. Bound in the sense that Parks Victoria was legally obliged to comply with cl 6.1 and that compliance was a condition for a lawful exercise of power. Both in his originating motion and application for leave to appeal, the applicant sought injunctive and declaratory relief, although before us he confined his claim for relief to a declaration.

83 It follows that the applicant must establish that he has a special interest in the decision to cull the feral horses within the National Park rather than a more diffuse interest in brumbies or in ensuring compliance with the law. He says that he has that status and is entitled to enforce cl 6.1 of the Statement of Obligations.

84 The applicant relies on the three matters he advanced at trial. He complains that the judge erroneously considered each aspect in isolation rather than taking a 'wholistic, multifactorial view'.[41]

85 On the first aspect, he submits that the manner in which Parks Victoria administers the National Park affects his land and this makes his interest distinct and special. He submits that he would participate in consultation that is required by the Statement of Obligations, which places him in a particular class and gives him a special interest in enforcing the consultation obligation.

86 Secondly, he says that he is an adjoining landowner, and owns a business that depends, in part, on the brumbies being present. He says that the brumbies graze on his land and he feeds them and provides veterinary care for them. He says that the horses reduce the fuel load on his property. He submits that these aspects confer an amenity that constitutes a peculiar benefit that distinguishes his position to that of the public at large. He says that the judge was wrong to treat his claimed amenity to be unaffected by the impugned decision merely because the decision concerns the mode of removal rather than whether the horses would be allowed to remain within the National Park. He argues that the evidence did not establish that a non-lethal approach would remove all of the horses from the National Park and says that he has a special interest in securing a less effective method of control which would leave a larger population in the vicinity.

87 Thirdly, he says that he has a strong relationship with the brumbies and that, contrary to the approach of the judge, this was not irrelevant and cannot be dismissed as a mere emotional concern. He says that the brumbies' ancestors were bred on his land. In that respect, he relies on the following observation of Stephen J in Onus v Alcoa:

As the law now stands it seems rather to involve 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]

88 Parks Victoria submits that the fact that the applicant would participate in any consultation undertaken by it does not give him standing. In the event that he succeeds in his claim, he would be able to participate in any consultation but would not, as a result, enjoy any greater benefit than every other member of the community. His willingness to avail himself of the opportunity to be consulted would not mean that his interest was different or peculiar to him.

89 Next, Parks Victoria submits that the evidence did not establish a factual foundation for the applicant's submission that the decision would result in a loss of amenity or enjoyment of his land. It submits there was no evidence of how many, or how frequently, horses grazed on the applicant's land and no evidence that those horses reduce fuel loads on the land.

90 It submits that at trial the applicant disavowed reliance on the impact of the horses on his business. He last held the necessary licence to operate a business within the National Park in 2008 and there is no basis to conclude that he would obtain such a licence in the future.

91 More generally in relation to amenity, Parks Victoria submits that the applicant did not discharge his onus of establishing a relevant impact given the absence of evidence as to the size and use of his land and the impact of culling horses from 'areas of highest conservation concern and feral horse impacts'.

92 As to the applicant's relationship, and that of his forebears, to the horses, Parks Victoria submits that this rises no higher than an emotional or intellectual concern, which the authorities establish is inadequate to establish standing.

93 The applicant frankly accepted that the statutory scheme, including the various Acts and instruments that form part of the framework for the making of the decision, do not identify or recognise him as having a special interest in the particular decision he seeks to impugn.

94 It is worth emphasising that the primary focus of the National Parks Act is the protection of national parks in the public interest. As the preamble to the National Parks Act recites: 'it is in the public interest that certain Crown land characterized by its predominantly unspoilt landscape, and its flora, fauna or other features, should be reserved and preserved and protected permanently for the benefit of the public'.

95 It is also relevant that the National Parks Act imposes an obligation on Parks Victoria to ensure that it manages each national park in a manner that will 'exterminate or control exotic fauna' in the National Park.[43] As we have already stated, it is common ground that feral horses fit within this category. Unsurprisingly, the applicant did not identify any provision of the legislative scheme that might suggest an intention to protect or accommodate the interests of the exotic fauna.

96 The applicant observes that the preparation of strategy documents under div 3 and management plans under div 4 of the Parks Victoria Act 2018 requires detailed public consultation. As Parks Victoria points out, neither the Management Plan nor the Action Plan was made under the 2018 Act. The former was made under s 17(2)(d) of the National Parks Act and the latter under the general administrative power in s 8 of the Parks Victoria Act 1998. More importantly, the various Acts emphasise that national parks are managed for the community as a whole and contemplate, and in certain respects require, consultation and community input. Those provisions only serve to emphasise that, in the legislative context, the applicant's interests are indistinguishable from those of other members of the community.

97 The applicant also relies on the terms of cl 6.1 of the Statement of Obligations as relevant to his standing. He submits that it imposes a legally enforceable obligation to engage with the community and confers a legal right on him to be consulted. He submits that Parks Victoria was legally obliged to engage in a timely and inclusive way and that the park management strategies and plans and programs and projects referred to in cl 6.1 extend beyond formal legal instruments (such as strategy plans and management plans) but also to virtually every decision and document prepared by Parks Victoria. In argument, he relied on the example of the type of signage erected within national parks as being a decision that would require community consultation.

98 The breadth of that submission, were it to be accepted, would cast doubt on the underlying premise that the obligation in cl 6.1 is legally enforceable. It also means that it cannot assist in supporting a special interest. The obligation is, on any view, diffuse: to 'undertake timely and inclusive engagement' with the broader community. The applicant falls within its scope because he is a member of the community. Clause 6.1 does not favour the applicant over and above others in the community. Its terms provide no basis to support standing.

99 It follows that the applicant is unable to point to anything in the statutory scheme to his advantage on the question of standing.

100 That conclusion does not remove the possibility that the applicant might have a sufficient interest because of the nature of the decision and its practical effect. As noted, he relies on three aspects. Without losing sight of the combined force of the three matters relied on by the applicant, it is convenient to address each in turn.

101 The first matter is that the applicant says he would take up the opportunity to participate in engagement. However, that fact does not alter the nature of the right to be consulted or the interest that he holds. As the judge found, it means no more than he seeks the benefit of the claimed relief.[44] As we have already noted, the fact that the applicant would be consulted is because he is a member of the community and not because he holds any special interest in the subject matter of the decision.

102 The fact that a plaintiff has engaged in activities relating to the subject matter in the past and taken up the opportunities for engagement or consultation that exist may be relevant to whether it has standing to challenge an exercise of power.[45] A recognised history of being consulted and speaking for a matter may support a special interest. However, this is by no means determinative. The fact that the Australian Conservation Foundation had earlier commented on a draft environmental impact statement produced pursuant to administrative procedures did not of itself confer standing on it to challenge or complain of a decision resulting from the environmental assessment process.[46] The applicant is not even in this category.

103 What the applicant intends to do in the future cannot determine the character of his current interest in the subject matter of the decision. It follows that the judge was correct to reject the first basis. The applicant's ability to participate in future consultation is the same as that of every other person. His subjective willingness to participate does not alter the nature of his interest.

104 The applicant submits that as an adjoining landowner, the horses have contributed to his enjoyment of his land and their presence would be of benefit were he to recommence a business in the National Park in the future.

105 Conclusions as to standing generally, including the significance of economic and financial interests, involve matters of judgment of fact and degree.[47] And, as Parks Victoria notes, the applicant bore the onus of establishing that he had standing.

106 It is convenient to deal first with the impact on a potential future business of the applicant.

107 An economic or financial interest in the subject matter of a proceeding may be sufficient to give a plaintiff standing. The private law has long been solicitous of economic and proprietary interests, and no doubt, to an extent, that carries through into public law. It may not be determinative as the discussion in the context of standing to challenge the validity of taxing laws in Pape v Commissioner of Taxation of the Commonwealth of Australia makes clear.[48] However, the nature and extent of the financial interests and the extent of any impact may be very important to the question of standing.

108 The applicant raised the suggestion that the decision might reduce the value of his land. He did not persist with it and it can be put to one side. There was no evidence to support it.

109 In his written case in this Court, the applicant contended that he owns a business that depends in part on the brumbies. He accepted, in the course of argument, that the business was not currently operating. The evidence went no higher than showing that he needed a licence in order to operate the business in the adjoining National Park, he last held a licence in 2008 and had not conducted a business since then.

110 Ultimately, the applicant submitted that the relevant financial interest was that in the future he might operate a business and the decision would affect it. In other words, he contended that he had a special interest as a person who might at some time operate a business that was liable to be affected by the decision in question.

111 In our view, that contention provides no basis for standing. First, it was not supported by evidence. The possibility that the applicant might recommence his business in the future was entirely speculative. There was no detail as to when it might start, its scale or the extent which it might be affected by the decision. Secondly, standing cannot be established by asserting that the applicant's position might one day change in a way that might, in some vague or general way, be affected by the decision that has already been made. Standing needs to be established, probably at the time the proceeding is commenced, but certainly no later than the time the court rules on the question. We accept that standing might be established because of a potential intersection with the relevant interest even where the relevant impact may not come to pass. However, the relevant interest must exist. It is not satisfied where the interest is one that may be acquired in the future.

112 The applicant contends that the presence of the brumbies increases his enjoyment or amenity of his land. Although it is not entirely clear, it appears that he enjoys the brumbies coming on to his land, and also seeing them in the adjoining National Park.

113 In our opinion, the claimed enjoyment or amenity is insufficient to establish standing.

114 First, the fact that the applicant is an adjoining landowner is of little significance to the subject matter of the litigation. The decision will be implemented within the National Park. It does not involve the use of his land. Nor does it involve any physical impact on his land, or otherwise affect its use.

115 Secondly, although by reason of his proximity to the National Park, the applicant may either visit or be able to see the park from his property, his right or interest in enjoying the National Park is no different to that of any other member of the community. There is no suggestion that, as an adjoining landowner, he has any rights of access or enjoyment or holds other privileges in relation to the National Park that are not generally held by all members of the community.

116 Thirdly, as the judge observed, the decision under challenge is a decision going to the method of reducing the herd of feral horses in the National Park.[49] The applicant's interest is in having horses within the National Park and, more particularly, in that part of the National Park near his property. The impugned decision does not go to the number of horses. It may be accepted that a practical consequence of the decision is that more horses would be removed than would otherwise be the case but nevertheless, the applicant's amenity does not directly correlate with the subject matter of the decision. The disconnect between the decision and the claimed interest diminishes the interest of the applicant in the subject matter of the litigation.

117 Relatedly, we cannot accept that the applicant has a special interest in maintaining the number of horses within the National Park beyond, at most, an emotional attachment or affinity with the horses which graze there. In this context, it is notable that the special interest is not based on a concern about the treatment of the animals but an interest in their retention in sufficient numbers to support his enjoyment of them. Nor does the applicant identify himself as standing in a special position to advance some broader public interest concerning the retention of feral horses in the National Park.

118 Fourthly, the evidence to support the claimed amenity was exiguous. The evidence did not establish that the implementation of the decision would materially impact the applicant's amenity. He did not establish that the shooting was likely to impact the population of horses near his property.

119 Much of what we have said also applies to the claim based on the applicant's relationship with the feral horses, which was very much tied to the amenity argument.

120 We would only add that the applicant's connection to the feral horses amounted to a strong emotional and intellectual attachment to them. No matter how keenly felt, those interests do fall within the category that the High Court has held are insufficient to establish standing.

121 Taken both individually and collectively, the matters on which the applicant relied were not sufficient to establish standing. For that reason, the proceeding was not properly constituted. The order made by the judge dismissing the proceeding was correct.

122 In the absence of a properly constituted suit, it is not appropriate for this Court to venture on the merits of the grounds 2 to 4.

[1] Australian Brumby Alliance Inc v Parks Victoria Inc [2020] FCA 605.

[2] The applicant relied on other arguments below, including that the obligation arose from the Alpine Park Management Plan, but these were not pressed on the present application and can be put aside.

[3] Maguire v Parks Victoria [2020] VSC 303 ('Reasons').

[8] We note that before the judge there was an issue as to whether the management plan was an 'enactment' within the meaning of s 38 of the Interpretation of Legislation Act 1984. The judge held that it was not: Reasons [69]-[88]. That issue does not arise on the present application.

[10] Section 36 provides that a statement of obligations has effect when it is published in the Government Gazette.

[12] Action Plan 22 (emphasis in original).

[14] Parks Victoria, 'Protecting the Alpine National Park', 8 May 2020.

[15] Dated 19 May 2020 and 24 May 2020.

[16] [1980] HCA 53; (1980) 146 CLR 493, 526; [1980] HCA 53 (Gibbs J) ('ACF v Commonwealth'). See Reasons [41].

[17] [1981] HCA 50; (1981) 149 CLR 27, 75-6; [1981] HCA 50 ('Onus v Alcoa'). See Reasons [42].

[22] Boensch v Pascoe [2019] HCA 49, [7]-[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ).

[24] (1995) 183 CLR 552, 558; [1995] HCA 11 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ) ('Shop Distributive').

[25] [1998] HCA 49; (1998) 194 CLR 247, 265-6 [46]; [1998] HCA 49 ('Bateman's Bay') (citations omitted).

[28] Ibid 109 [184]-[185] (citations omitted).

[30] Ibid 42, citing [1981] FCA 121; (1981) 54 FLR 421, 437-8 (citations omitted).

[33] Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, 407 [33]; [2014] HCA 50 (French CJ and Keane J) ('Argos').

[34] (1903) 1 Ch 109, 114 (Buckley J).

[36] Argos [2014] HCA 50; (2014) 254 CLR 394, 408-9 [37]-[40]; [2014] HCA 50 (French CJ and Keane J).

[37] Ibid 409 [43] (French CJ and Keane J), 417 [76] (Gageler J).

[38] (1995) 183 CLR 552, 558; [1995] HCA 11 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).

[40] McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [60] (citations omitted).

[41] Relying on North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492, 512-13 (Sackville J) ('North Coast').

[45] North Coast [1994] FCA 1556; (1994) 55 FCR 492, 512-14 (Sackville J); Environment East Gippsland Inc v Vicforests [2010] VSC 335; (2010) 30 VR 1, 25-8 [77]-[88]; [2010] VSC 335 (Osborn J).

[46] ACF v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 531 (Gibbs J), 540-2 (Stephen J); [1980] HCA 53.

[47] Argos [2014] HCA 50; (2014) 254 CLR 394, 408 [39] (French CJ and Keane J), 414 [62] (Hayne and Bell JJ); [2014] HCA 50.

Protection and Biodiversity Conservation Act 1999

Legislation Act 1984

Allowance Authority Act 1992

At a glance

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Judgment (189 paragraphs)

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Legislation Cited (5)

Cases Cited (12)