Plaintiff v Defendant

Supreme Court of Victoria|2020-05-29|Before: MOORE J

JUDICIAL REVIEW - Standing - Whether plaintiff has standing to challenge decision on basis of lack of public consultation - Where plaintiff asserts that he would participate in public consultation - Plaintiff does not have a special interest - Plaintiff does not have standing - Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, applied - Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, applied.

LEGISLATION - Whether management plan is an 'enactment' - Whether management plan is a 'subordinate instrument' - Where management plan is an instrument made under an Act - Whether management plan contains rules - Where management plan merely refers to permissions conferred by other instruments - Where management plan is predominantly a strategy document - Management plan is not a subordinate instrument nor an enactment - Interpretation of Legislation Act 1984, s 38 - MyEnvironment Inc v VicForests [2013] VSCA 356; (2013) 42 VR 456, distinguished.

1 Philip Maguire is the owner of Mount Bundarra Station which abuts the Alpine National Park. Mr Maguire has a strong attachment to brumby horses. He considers that the ancestors of Bogong brumby horses were originally bred on his land. Today, they graze on his land and some are de-pastured there. When necessary, Mr Maguire feeds them and provides them with veterinary care.

2 On 1 June 2018, Parks Victoria released a document entitled 'The Protection of the Alpine National Park - Feral Horse Strategic Action Plan 2018-2021' (the Action Plan). The Action Plan is a plan for managing the horses which Mr Maguire refers to as brumbies and which Parks Victoria describes as 'feral horses'. There are about 5,000 of these horses in the Victorian Alps. Feral horses are considered by Parks Victoria to be exotic fauna. Parks Victoria has a statutory duty to control exotic fauna in the Alpine National Park.[1]

3 The goal of the Action Plan is to substantially reduce the population of these horses. It identifies the trapping and removal of horses as the primary method by which that goal is to be achieved. Significantly for present purposes, the Action Plan expressly provides that ground and aerial shooting is not be used to control free-ranging feral horses.

4 In March 2020, Parks Victoria decided to move to ground shooting of free-ranging horses to reduce environmental damage at high conservation priority alpine locations. Specifically, Parks Victoria decided that small team operations would be deployed where ground based professional shooters would use thermal imaging and noise suppressors to cull free-ranging feral horses under strict animal welfare protocols with expert equine veterinary oversight (the decision).

5 Parks Victoria did not engage in a public consultation process before making this decision. Mr Maguire learnt of it from a media release issued by Parks Victoria on 8 May 2020.

6 Mr Maguire commenced this proceeding by originating motion filed on 18 May 2020. He sought an interlocutory injunction restraining Parks Victoria from acting on or taking any steps in reliance on the decision until the final determination of the proceeding. On the basis of an indication given to the Court by Parks Victoria that it would not commence culling horses in the Eastern Alps until 1 June 2020, the Court agreed to hear and determine Mr Maguire's application for final relief on an expedited basis. The matter was heard by the Court on 26 May 2020.

7 Shortly before the hearing, for reasons which are presently immaterial, Mr Maguire abandoned the original grounds he had advanced to challenge the decision. He was granted leave to amend his claim. The final relief he now seeks is as follows:

An injunction restraining the defendant from implementing the "kill" policy until such time as it complies with:
1. Clause 6.1 of the Statement of Obligation made under s 31 of the Parks Victoria Act 2018 (Vic); and
2. The consultation obligation under the "plan of management" in relation to the Greater Alpine National Park made under s 17(2)(d) of the National Parks 1978 (Vic) in August 2016.
Alternatively, a declaration that the defendant was obliged to comply with A(a) and A(b), and has failed to comply therewith.

The reference to the implementation of the '"kill" policy' in paragraph A of the relief sought, is a reference to the implementation of the decision referred to above.

8 Mr Maguire's case is that Parks Victoria was required by law to consult with the community in relation to the decision to cull feral horses in the Alpine National Park and that it failed to do so. The existence or otherwise of that obligation to consult is the central controversy in the proceeding.

9 Mr Maguire contends that the obligation on Parks Victoria to consult is derived from cl 6.1 of Parks Victoria's 'Statement of Obligations' made under s 31 of the Parks Victoria Act 2018 or, alternatively, from the content of the 'Management Plan for the Greater Alpine National Parks' dated August 2016 and adopted by Parks Victoria in December 2016 (the Management Plan). The Management Plan was prepared under s 17(2)(d) of the National Parks Act 1975. Mr Maguire's reliance on the Management Plan as a source of the obligation to consult is dependent upon the Management Plan being an 'enactment' within the meaning of s 38 of the Interpretation of Legislation Act 1984.

10 Parks Victoria challenges Mr Maguire's standing to bring this proceeding. It also contends that, even if he has standing, neither the Statement of Obligations nor the Management Plan imposed upon it an obligation to consult with the community in relation to the decision. Parks Victoria further submits in the alternative that, if it was subject to such an obligation, it did in fact consult with the community. Finally, Parks Victoria also submits that, even if Mr Maguire otherwise makes out his claims, the Court should refuse relief on discretionary grounds.

11 The following six questions therefore potentially arise 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?

Before addressing these questions, I will first set out the relevant statutory framework in which they fall to be considered. I will then set out the relevant features of the Management Plan and the Action Plan and provide further background to the making of the decision.

12 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.[2] Although some actions relevant to this proceeding were taken by the predecessor body and others by Parks Victoria established by the Parks Victoria Act 2018, no significance attaches to that fact. For convenience, no distinction is made in these reasons between those actions taken by Parks Victoria under the Parks Victoria Act 2018 and those taken by the predecessor body under the Parks Victoria Act 1998.

13 The objects of Parks Victoria set out in s 7(1) of the Parks Victoria Act 2018, which it must have regard to in performing its functions, exercising its powers and carrying out its duties,[3] 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.

14 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;

15 The Minister may give directions to Parks Victoria in relation to the performance of its functions or the exercise of its powers.[4]

16 Division 2 of Part 3 of the Parks Victoria Act 2018 deals with 'Statements of Obligations'. Section 31(1) states:

(1) The 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 -

(a) Parks Victoria managed land; and

(b) land managed by a committee of management appointed under section 14 of the Crown Land (Reserves) Act 1978 or section 50(3) of the Forests Act 1958 constituted by Parks Victoria; and

(c) land that is the subject of an agreement under section 69 of the Conservation, Forests and Lands Act 1987 that is managed by Parks Victoria on behalf of the Secretary.

A statement of obligations may include provisions for or with respect to 'collaboration or consultation with other government bodies, traditional owners, non-government bodies and the community'.[5]

17 Pursuant to s 37(1) of the Parks Victoria Act 2018, Parks Victoria 'must comply with a statement of obligations'.

18 Pursuant to s 17(2) of the National Parks Act 1975, Parks Victoria 'has the control and management of each national and State park and must', amongst other things:[6]

(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.

19 The Management Plan is the overarching land management plan for the Alpine National Park. It was prepared by Parks Victoria in accordance with s 17(2)(d) of the National Parks Act 1975 and adopted in December 2016. It is a substantial document comprising 140 pages, plus preliminary material, a bibliography and annexures.

20 The Management Plan describes itself as a 'strategic guide for active management of seven parks' under the National Parks Act 1975 and five adjacent historic areas. One of the parks to which it applies is the Alpine National Park. It is intended to 'guide the management of' the identified parks and historic areas. The following paragraph in the Introduction of the Management Plan is a useful summary of its nature and content:[7]

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.

21 The Management Plan identifies eight 'strategies' 'as the highest priority for urgent action' to address 'key threats'. One of those strategies is described as 'feral horse control'. Chapter 4 of the Management Plan entitled 'Protecting the natural environment' includes a two-page section on 'Feral horses in the alps'. I address relevant parts of this section when considering Questions 3 and 4 in [77] below.

22 The Action Plan is one of several single issue or thematic subsidiary strategies, action plans, policies and guiding documents which sit under the Management Plan.

23 The Action Plan 'describes where and how feral horses will be managed in the Alpine National Park, and adjacent state forests between 2018 and 2021'.[8] It identifies the need for 'an increased rate of removal of feral horses' because of the low numbers of horses that have been removed from the Victorian Alps in recent years. The numbers of horses which have been removed has 'not been sufficient to mitigate the severe impacts of horses on vulnerable areas, particularly to riverine wetlands, alpine peatlands and streambanks'. As a result, some areas of the Alpine National Park 'are in poor condition and are not showing resilience to the impacts of horses'.[9]

24 The Action Plan states that it is to be implemented over three years from July 2018 to June 2021, with planned actions to focus on 'capture and control, rehoming where possible, and monitoring and research'.[10] 'Feral horse control ... will principally be delivered using the control method of passive trapping'.[11] An initial target of up to 1,200 horses to be captured over three years is identified as an 'aspirational goal'.[12]

25 The Action Plan provides an overview of the available control methods in relation to feral horses. 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:[13]

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.

26 The Action Plan does however provide that horses within, or close to, trap yards will need to be humanely put down by shooting under strict protocols. The circumstances identified are:[14]

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.

27 The Action Plan was the product of extensive community engagement. This included engagement with community-based advisory groups, interviews with key peak and regional interest groups, a Victorian community perception survey, and public input to a draft action plan during a consultation period between December 2017 and February 2018. In that period, members of the community were encouraged to review a draft action plan and provide their feedback via a website. About 1,000 submissions and comments were received, principally by way of online surveys. More than 80% expressed their support for managing the feral horse population to ensure the future protection of the Alpine National Park.

28 Although the shooting of horses was not proposed in the draft action plan, some 351 comments were received about shooting as a control method. About 80% of those comments supported shooting as a control method on the basis of its efficiency, practicality and humaneness. The majority of the opposition to shooting as a control method was based on animal cruelty concerns or ethical principles.

29 The Action Plan has not been implemented in the manner contemplated by Parks Victoria.

30 Soon after the Action Plan was released, the Australian Brumby Alliance Inc 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 and removing feral horses or brumbies from the Bogong High Plains and the Eastern Alps in the Alpine National Park. Undertakings given by Parks Victoria in that proceeding - which came to an end when judgment was delivered in Parks Victoria's favour on 8 May 2020[15] - prevented the full implementation of the Action Plan over two of the three years of its operation.

31 Significantly, although the Action Plan targeted the removal of 1,200 feral horses, only 153 horses have been removed since the release of the Action Plan.

32 In addition to the interruption to the implementation of the Action Plan flowing from the undertakings given by Parks Victoria in the above proceedings, the unchallenged evidence given on behalf of Parks Victoria was that the assumptions underlying the Action Plan have changed dramatically in three other ways since it was released.

33 First, the 2019-2020 bushfires affected 130,000 hectares of the Alpine National Park with the consequence that many native alpine species that were already threatened will have had both their numbers and areas of occupancy significantly reduced. Further, about 44% of the total 'horse-occupied' area in the Alpine National Park of 179,000 hectares was fire-affected. As a result, the damage caused by, in particular, feral horses and deer to critically endangered native alpine plants and wildlife has been significantly increased and compounded by the bushfires.

34 Secondly, there has been a dramatic increase in feral horse numbers in the region. As I have already noted, it is estimated that there are now approximately 5,000 feral horses in the Victorian alps. This is significantly greater than the total estimate of about 2,450 feral horses contained in the Action Plan.

35 Thirdly, trapping programs have been limited in their effectiveness in removing sufficient horses and there has been poor interest and uptake in rehoming feral horses which have been trapped.

36 Parks Victoria made the decision in March 2020 as a result of the matters referred to in [30]-[35] above. It did not engage in a public consultation process because of what it considered to be the urgent need to implement the decision. A public consultation process could have taken at least four months which would have further limited Parks Victoria's capacity to address critically urgent conservation issues in the Alpine National Park, particularly given the upcoming winter access limitations. Further, Parks Victoria considered that, as a result of the engagement process undertaken in relation to the preparation of the Action Plan, it was already aware of the full range of community views about the shooting of feral horses and that many people supported it as a method of control and that some were against it. The evidence before the Court was that Parks Victoria was aware of these concerns and had considered in particular animal welfare issues associated with implementing the decision.

37 Counsel for Mr Maguire advanced three grounds upon which it was submitted that his client had standing to commence the proceeding.

38 The first and principal basis rested upon Mr Maguire's evidence that, if there is to be public consultation following this proceeding, he intends to participate in such consultation and to make clear that he does not want Parks Victoria to 'implement any kill policy'.

39 It was submitted that this was a sufficient interest to satisfy the requirements of standing. The relevant interest held by Mr Maguire was his statutory right to be provided with an opportunity to participate. If he is correct that consultation was required to be undertaken by Parks Victoria prior to the making of the decision and that such consultation has not occurred, he is entitled to take the benefit of such a finding. In considering the question of standing, it was submitted to be essential to consider the nature of the right at issue. Here, the nature of the asserted right concerns consultation by Parks Victoria with the broader community.

40 I do not accept that this ground gives Mr Maguire standing to bring this proceeding. First, as stated by Brennan J in Onus v Alcoa of Australia Ltd,[16] '[a] plaintiff does not acquire standing to sue for relief merely by proclaiming before he sues that he has an interest in obtaining relief'.[17] His Honour continued:[18]

A litigant's interest in obtaining the relief claimed is not by itself the interest which gives standing to sue; standing to sue is not established by suing.

The fact that Mr Maguire has deposed to his intention to voice his objection to the decision if he is successful in this proceeding does not demonstrate that he has any interest 'other than that which any member of the public has in upholding the law'.[19]

41 Secondly and relatedly, as stated by Gibbs J in the ACF case, 'an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty'.[20] His Honour continued in the following seminal passage:[21]

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.

42 To the same effect, Brennan J stated as follows in Onus v Alcoa of Australia Ltd:[22]

At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of a class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community.

43 In this proceeding Mr Maguire seeks vindication of his claim that Parks Victoria must engage in consultation with the community in relation to the decision. If he is successful in that action, Mr Maguire will be afforded the same opportunity as every other member of the Victorian community. In that way, Mr Maguire is in no different position to any other member of the public in relation to his claim in this proceeding. For the reasons I have indicated, this analysis is not altered by the fact that Mr Maguire has deposed to an intention to participate in any future consultation in relation to the decision.

44 The second basis upon which Mr Maguire sought to establish standing to bring this proceeding was that the location of his property as abutting the Alpine National Park meant that he enjoyed a particular amenity which was specific to him and not the general public. Reliance was placed upon Mr Maguire's evidence that brumbies graze on his land, that he feeds them when required and also provides veterinary support if required.

45 The third basis upon which standing was asserted 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.

46 It is convenient to deal with these grounds together. They have in common the underlying difficulty that the claimed loss of amenity and loss of benefit from the brumbies' grazing habits have as their foundation the removal of the horses, not the manner of their removal, being the subject manner of the decision. Whether the horses are removed by trapping or by culling or by some other means has no bearing upon the claimed amenity and other benefits said to flow from the presence of the horses on Mr Maguire's property.

47 It is clear that the decision to remove the horses from the Alpine National Park was the subject of extensive community consultation before the Action Plan was made and is given effect to by the contents of that plan. Mr Maguire did not make any submissions to Parks Victoria in relation to the making of the Action Plan (or the Management Plan).

48 In order to establish standing to bring this action, Mr Maguire must show that success in the proceeding would confer upon 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. 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',[23] as noted in the Action Plan, does not alter this analysis.

49 For the above reasons, I do not consider that Mr Maguire has standing to bring this proceeding; Question 1 is answered 'no'. Although it is therefore strictly unnecessary to do so, in the event that this matter goes further, I will proceed to determine those questions relevant to whether Parks Victoria was required to consult with the community before making the decision.

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?

50 On 27 October 2018, the Minister for Energy, Environment and Climate Change made a Statement of Obligations under s 31 of the Parks Victoria Act 2018. It sets out obligations which apply to Parks Victoria in performing its functions and exercising its powers in relation to the land which it manages.[24] Parks Victoria must comply with the Statement of Obligations.[25]

51 Clause 6.1 of the Statement of Obligations is relied upon by Mr Maguire as the source of the obligation on Parks Victoria to consult with the community. Clause 6.1 is entitled 'Engagement with the Community' and provides as follows:

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).

52 It was submitted on behalf of Mr Maguire that, in the context of the Statement of Obligations, the word 'engagement' in cl 6.1 is an approximate synonym for 'consultation'. In support of that interpretation, Mr Maguire referred to the following 'guiding principles' in cl 4.1 of the Statement of Obligations to which Parks Victoria is required to have regard in performing its functions and exercising its powers:

4.1 ...

(c) the community should be placed at the centre of park planning and management

(d) effective communication with the community and key stakeholders is critical to the successful development and delivery of major policies, management outcomes, initiatives and operations.

These provisions were submitted to be important contextual indicators that, when the Minister used the word 'engagement' in cl 6.1, she meant it in the sense of 'consultation'.

53 Mr Maguire also submitted that the adjectives 'timely and inclusive' appearing in cl 6.1 before the reference to 'engagement' and the reference to that engagement being 'to effectively support the preparation of' Parks Victoria's strategies and plans, indicated that engagement was a synonym for consultation which, in most instances, was to take place before the making of decisions about how those functions are to be exercised. It was submitted that so much would follow at least where the relevant function affects the 'broader community', 'community and Friends groups' or 'key stakeholders', implying that the nature of the engagement must be real and meaningful and that Parks Victoria must be open to adjusting its position according to what occurs during such engagement. The need for engagement to occur before Parks Victoria performed a function is necessary in order that the relevant engagement not be hollow.

54 Mr Maguire also emphasised that the terms of s 37(1) of the Parks Victoria Act 2018 (that Parks Victoria 'must comply' with the Statement of Obligations) and the language in cl 6.1 (that Parks Victoria 'must undertake') indicated that the requirement for engagement is not an exhortation, but a legal obligation.

55 Counsel submitted that this conclusion was not diminished by the nature of the obligation to consult imposed by the Statement of Obligations and was fortified by a consideration of the present controversy. In circumstances where cl 6.1 provides that 'engagement' is to 'support the preparation' of park management strategies and plans and where it was well known to Parks Victoria that the culling of horses was a highly contentious issue, community consultation might lead to an outcome which was not Parks Victoria's preferred outcome. Consultation would give those affected the opportunity to present new options to Parks Victoria, to take up the matter in the political realm and to seek a ministerial direction under s 14 of the Parks Victoria Act 2018.

56 This interpretation was submitted to be consistent with the centrality of the 'community' in Parks Victoria's objectives and functions, including in particular the function of developing management and other plans and strategies 'in consultation with the community'.[26] Public consultation was submitted to be a hallmark of the Parks Victoria Act 2018.

57 It was submitted that whether or not the engagement required by cl 6.1 has taken place is a question of fact. The flexible and sometimes 'aspirational' nature of Parks Victoria's functions, including the preparation of park management strategies and plans and the delivery of its programs and projects, meant that what constitutes sufficient engagement to satisfy cl 6.1 will depend upon the individual circumstances and facts of each case. There must however be a 'minimum threshold of activities' which a court could adjudicate as being 'reasonable engagement'.

58 In this matter, the Court was not, however, being invited to determine whether or not particular activities were sufficient to discharge the requirement on Parks Victoria to undertake timely and inclusive 'engagement'. Instead, Mr Maguire's case was that the admitted failure by Parks Victoria to engage in any public consultation in relation to the development or implementation of the policy to cull horses the subject of the decision, said to be a major and controversial amendment to the Action Plan, amounted to a failure to comply with cl 6.1 of the Statement of Obligations.

59 To the extent that Mr Maguire focused on the mandatory nature of the obligation imposed by cl 6.2 of the Statement of Obligations, his submissions are of limited assistance in determining the issue at hand. The question is not about whether Parks Victoria must comply with cl 6.1; it is clear that it is required to do so. The task is to consider the nature of the particular obligations imposed by the clause and in particular to determine whether it obliged Parks Victoria to consult with the community before making the decision.

60 The submission that the word 'engagement' appearing in cl 6.1 is an approximate synonym for 'consultation' is a construction which is not supported by the language of the clause when considered in context.

61 First, it cannot be overlooked that cl 6.1 does not in fact contain the word 'consultation'. Secondly, the proposition that the Minister intended 'engagement' to mean 'consultation' cannot be accepted given that the Minister used the language of 'consultation' and 'consult' elsewhere in the Statement of Obligations. Of most significance is cl 9.2.1 dealing with land management strategy. It provides as follow (underlining added):

Parks Victoria must provide a copy of the draft land management strategy, developed in accordance with the Parks Victoria Act 2018, to the Minister at least 28 days prior to releasing it for public consultation.

The fact that cl 9.2.1 relates to a land management strategy, being a State-wide document setting out general long term directions, strategies and priorities, does not detract from the significance of the fact that, having used the language of 'public consultation' in one part of the Statement of Obligations, it is absent from cl 6.1.[27]

62 Thirdly, an important textual indication that the Minister did not intend 'engagement' to be synonymous with 'consultation' is provided by the reference contained in the final sentence of cl 6.1 which states (underlining added):

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).

The emphasised words of the sentence indicate that the document Public Participation in Government Decision-making (the Auditor-General's document) is of particular significance in understanding what is meant by the obligation to undertake timely and inclusive engagement referred to in the first sentence of cl 6.1.

63 Under the heading 'What is public participation?', the Auditor-General's document states as follows:

The International Association for Public Participation (IAP2) defines public participation as the involvement of those affected by a decision in the decision-making process. Public participation encompasses activities ranging from simply informing people about government's activities to delegating decision-making to the public.

As shown in Figure 1A, the IAP2 public participation spectrum includes five levels of public participation, from the lowest level (Inform) to the highest level (Empower). ...

64 Figure 1A in the Auditor-General's document represents five levels of a 'public participation spectrum' which includes the following:

• 'Inform', which is described as 'Low level of public engagement';

• 'Involve', which is described as 'Mid level of public engagement'; and

• 'Empower', which is described as 'High level of public engagement'.

65 These parts of the Auditor-General's document demonstrate that, in the context of that document, the word 'engagement' has a broad meaning. In relation to the public, it is capable of describing a wide ambit of actions ranging from actions which simply inform, through to those which empower decision-making. This breadth of meaning is imported into the word as it appears in the first sentence of cl 6.1 because, as the final sentence makes clear, Parks Victoria 'must have regard' to the principles set out in the Auditor-General's document 'in its engagement'.

66 This analysis undercuts the contention that cl 6.1 requires Parks Victoria to engage in public consultation in relation to the preparation of its park management strategies and plans and the delivery of its programs and projects. Instead, it supports a conclusion that Parks Victoria has a degree of flexibility in selecting for itself appropriate ways in which to 'undertake timely and inclusive engagement'. Such an approach is consistent with the breadth of activities and decision-making in which Parks Victoria is necessarily involved in discharging its statutory functions.

67 It follows from this analysis that the obligation imposed on Parks Victoria by cl 6.1 of the Statement of Obligations to undertake timely and inclusive engagement with the broader community does not necessarily require it in all cases to consult with the community before a decision is made, or an action is taken. It is a question of fact for Parks Victoria to determine in each case what engagement should comprise, having regard to the principles set out in the Auditor-General's document.

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

69 Section 8(2) of the Parks Victoria Act 2018 requires Parks Victoria to 'exercise its functions ... consistently with the enactments applying to the management of the land'. Assuming, as Mr Maguire contends, that provisions of the Management Plan required Parks Victoria to consult with the community in relation to the decision,[28] it is necessary for the Management Plan to be an 'enactment' within the meaning of s 38 of the Interpretation of Legislation Act 1984 (the Interpretation Act).

70 An 'enactment' is defined in s 38 of the Interpretation Act to mean 'an Act or subordinate instrument or a provision of an Act or subordinate instrument'. The relevant question is whether the Management Plan is a 'subordinate instrument'.

71 A 'subordinate instrument' is relevantly defined in s 38 of the Interpretation Act to mean 'an instrument made under an Act - (a) that is a statutory rule; or (b) that is not a statutory rule but - (i) contains regulations, rules, by-laws, proclamations, Orders in council, orders or schemes; or (ii) is of a legislative character'. Mr Maguire submitted that, to qualify as a subordinate instrument, the Management Plan must be 'an instrument made under an Act', and even if it is not a 'statutory rule' or 'legislative instrument'; it need only contain 'rules'.

72 The Management Plan is an instrument made under an Act. The question is whether it contains 'rules'.

73 Counsel for Mr Maguire accepted that much of the Management Plan is imprecise and aspirational in its terms and that its overwhelming character was as a strategic policy document. Nevertheless, counsel submitted that it also contained rules about the management of land which carefully prioritised competing priorities for land management outcomes and decided upon priorities to be pursued and in what manner in relation to particular land. The fact that its overwhelming character was as a strategic policy document was submitted not to be an obstacle to it being characterised as an enactment because, pursuant to s 8(2) of the Parks Victoria Act 2018, the obligation on Parks Victoria is not to comply with the letter of every statement contained within the relevant document, but to act 'consistently' with it.

74 The principal basis upon which it was submitted that the Management Plan contained rules concerned specific information contained within chapter 8 entitled 'People in the parks'. That chapter contains brief descriptions of various national parks and, in respect of each, certain 'goals' in relation to 'visitor experiences' and certain identified 'strategies'. Some of the strategies listed in relation to particular parks are expressed in the language of permission. Various activities such as cycling, camping, horse riding and walking are prefaced by the words 'permit' or 'do not permit'. These were submitted to be archetypal expressions of rules.

75 The flaw in this argument is that these rules are in fact set by regulation and other documents published by Parks Victoria. The source of the relevant rules are the National Parks Regulations 2013 and certain 'set-aside determinations' made by Parks Victoria pursuant to those regulations. The Management Plan merely refers to the provision made by these other instruments by identifying which visitor activities may take place in various national parks; it is not however the source of those rules. A document made under an Act does not become a subordinate instrument merely because it refers to rules made under another enactment.

76 Aside from the above references within the Management Plan, the only other aspects of the Management Plan which Mr Maguire submitted were in the nature of rules were those parts of it which he submitted imposed an obligation on Parks Victoria to undertake community consultation.

77 Mr Maguire principally relied on the following two underlined sentences appearing in a two page section in chapter 4 of the Management Plan entitled 'Feral horses in the alps':[29]

Ground or aerial shooting are considered by technical experts and some stakeholders to be humane and effective techniques particularly for control over extensive areas of rugged terrain such as the eastern Alps. Technical experts and some stakeholders consider shooting to be a more humane control option compared to live capture techniques as animals are not subject to the stresses of capture, yarding and long-distance transportation. They also make the case for aerial shooting as a humane and effective method when carried out by highly skilled and experienced shooters and pilots using the correct equipment and procedures. However, negative public perceptions around the use of aerial shooting for horses have influenced decision making on use of the technique for humane horse control in south eastern Australia. An 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.

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.

78 Although it was not referred to by counsel in his oral submissions, in his written submissions filed with the Court, Mr Maguire also referred to paragraph 4.1.1 of the Management Plan as a source of the claimed obligation to consult. The section, which appears three pages after the above paragraphs, identifies the 'highest-priority strategies'. The first strategy identified relates to feral horses and states (emphasis added):[30]

Implement humane feral horse control in consultation with the community to:
- prevent new populations of feral horses establishing across the planning area where they do not currently occur
- remove isolated populations of feral horses where eradication is feasible
- contain and reduce feral horse numbers in core, larger populations in Alpine National Park to prevent spread and minimise impacts on high-value vegetation communities and fauna habitats
- consider all control options and use the most humane and effective techniques, including lethal and non-lethal methods
- cooperate with DELWP and NSW NPWS to remove populations from adjacent forest areas and Kosciuszko NP

79 I do not consider that, by force of these statements, the Management Plan imposes on Parks Victoria a legal obligation to consult with the community, including in relation to the decision to cull feral horses in the Alpine National Park. It follows that they are not 'rules' of the type necessary for the Management Plan to be a 'subordinate instrument' and thereby an 'enactment' within the meaning of the Interpretation Act. This conclusion follows from a consideration of the text of the above statements viewed in the context of the Management Plan as a whole.

80 The reference to 'consultation with the community' in paragraph 4.1.1 of the Management Plan forms part of what is explicitly described as a strategy to achieve a particular goal.[31] As submitted by Parks Victoria, this indicates that it was a strategy to implement feral horse control in consultation with the community. However, that does not indicate that Parks Victoria had an obligation to consult the community before making any decision relating to the control of feral horses.

81 A defining feature of the first sentence relied on by Mr Maguire in the paragraphs extracted in [77] above is its use of vague and conditional language: 'An 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' (emphasis added). This is language consistent with the character of the Management Plan as a strategic policy document, rather than one which imposes rules and obligations.

82 I reject as artificial the attempt by counsel for Mr Maguire to distinguish between the vague and aspirational language used in the above sentence in relation to substantive matters and what he submitted was the language of obligation used in it in relation to procedural matters. The sentence must be read as a whole.

83 However, even if such an approach is adopted, Mr Maguire is left with the argument that the Management Plan imposes a legal obligation to consult merely because of the words 'subject to community consultation' and 'in consultation with the community' appearing in the above paragraphs. The argument finds no other textual or contextual support. It ignores what Mr Maguire acknowledged to be the overwhelming character of the Management Plan as a strategic policy document. An approach to interpretation which involves fixing on, in isolation, two brief expressions taken from a 'brief summary of background information and issues'[32] in a strategy document of more than 140 pages in length is to be deprecated.

84 Mr Maguire relied on the judgment of Osborn J (as he then was) in MyEnvironment Inc v VicForests[33] and the judgment on appeal[34] as containing authoritative statements by three Judges of this Court about the kinds of documents considered to be subordinate instruments. That proceeding concerned the 'Central Highlands Forest Management Plan' and the 'Leadbeater's Possum Action Statement'. Mr Maguire submitted the latter was a reasonable analogue to the Management Plan and that it was made under land management statutes relevantly similar in design to the Parks Victoria Act 2018. At first instance, Osborn J (as he then was) referred to both of the above documents as being subordinate instruments to be construed in accordance with the Interpretation Act.[35] The same reference was made by Warren CJ (with whom Garde AJA agreed) on appeal.[36] Those observations were not the subject of any elaboration by their Honours. There is no indication in the respective judgments that the status of the above documents as subordinate instruments was in dispute in the proceeding.

85 The instruments considered by the Court in MyEnvironment were tendered into evidence in this proceeding. Contrary to Mr Maguire's submissions, they are very different to the Management Plan in character and in the prescription they make.

86 In addition to certain guidelines, the Central Highlands Forest Management Plan included 'Management Prescriptions' which 'detail[ed] specific conditions or standards which are to apply to forest operations in the vicinity of certain threatened flora or fauna'.[37] The plan also contained 'Management Actions' which 'commit[ted] [the relevant department] to implementing a number of actions which will further enhance the management of State forest'.[38] To the extent that the plan contained prescriptions of this type, unlike the Management Plan, it was not a strategic guide. It is therefore unsurprising, with respect, that the members of the Court appeared to proceed on the basis that the plan before them was a subordinate instrument.

87 The position is likewise in relation to the Leadbeater's Possum Action Statement. A code of practice made under statute required compliance with measures specified in that action statement. The Management Plan is not subject to any equivalent regulation.

88 For these reasons, the Management Plan does not contain 'rules' within the meaning of the Interpretation Act and is accordingly not a 'subordinate instrument' within the meaning of that Act. The answer to Question 3 is 'no'.

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

89 For the reasons given in [79]-[83] above, the answer to this Question is 'no'.

90 In light of the conclusions I have reached in respect of Questions 1-4, it is unnecessary to answer the remaining questions.

[7] Parks Victoria, Greater Alpine National Parks Management Plan (August 2016) 5.

[8] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 1.

[9] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 1.

[10] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 2.

[11] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 18.

[12] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 19.

[13] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 22 (original emphasis).

[14] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 24.

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

[19] Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 526.

[21] Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 530-1.

[22] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 75-6.

[23] Parks Victoria, Protection of the Alpine National Park: Feral Horse Strategic Action Plan 2018-2021 (2017) 23.

[24] Pursuant to s 31(1) of the Parks Victoria Act 2018 (see [16] above) and cl 1.1 of the Statement of Obligations.

[26] See s 7(1)(c) and (d) of the Parks Victoria Act 2018 referred to in [13] and s 8(1)(a)(i) referred to in [14] above. See also s 8(1)(a)(iv) and (1)(h).

[27] Clause 5.2 of the Statement of Obligations may also be noted. It states that 'Parks Victoria must consult the Minister in a timely manner on its efforts to enhance visitor access to parks, increase visitation and stimulate Victoria's visitor economy' (emphasis added).

[28] Those provisions of the Management Plan are referred to in [77]-[78] and are considered below.

[29] Parks Victoria, Greater Alpine National Parks Management Plan (August 2016) 38 (emphasis added).

[30] Parks Victoria, Greater Alpine National Parks Management Plan (August 2016) 41.

[31] Namely, '[d]irect management activity, resources, investment and partnerships to deliver priority strategies that are of most benefit to ecosystem goals at high-value areas'.

[32] See [20] above.

[34] MyEnvironment Inc v VicForests [2013] VSCA 356; (2013) 42 VR 456.

[35] MyEnvironment Inc v VicForests [2012] VSC 9, [108].

[36] MyEnvironment Inc v VicForests [2013] VSCA 356; (2013) 42 VR 456, 458 [2] (Warren CJ), 511 [202] (Garde AJA).

[37] Department of Natural Resources and Environment, Forest Management Plan for the Central Highlands (May 1998) 24.

Legislation Act 1984

Land (Reserves) Act 1978

Forests and Lands Act 1987

Protection and Biodiversity Conservation Act 1999

Parks Regulations 2013

At a glance

Court

Decision date

Before

Source

Judgment (164 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (3)