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The Agile Wallaby Project Inc v Department of Environment and Science

 

[2020] QCAT 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

The Agile Wallaby Project Inc. v Department of Environment and Science [2020] QCAT 121

PARTIES:

THE AGILE WALLABY PROJECT INC.

(applicant)

 

v

 

DEPARTMENT OF ENVIRONMENT AND SCIENCE

(respondent)

APPLICATION NO:

GAR237-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 May 2020

HEARING DATES:

28 October 2019, 29 October 2019 and 29 November 2019

HEARD AT:

Cairns

DECISION OF:

Member Pennell

ORDER:

The decision of the Department of Environment and Science dated 15 June 2018 to refuse to issue the applicant with a damage mitigation permit is set aside and substituted with the tribunal’s decision that pursuant to section 32 and Schedule 2 of the Nature Conservation (Administration) Regulation 2017 (Qld) the applicant is a suitable person within the meaning of the legislation to be issued with a damage mitigation permit.   

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL – OTHER STATES AND TERRITORIES – environmental assessment – impact upon release site habitat relating to the large scale capture and translocation of agile wallabies – application for damage mitigation permit to undertake the translocation of agile wallabies – the suitability of the habitat at the proposed release sites – the staffing and financial capacity of an organisation to undertaken the large scale capture and translocation – whether applicant has the experience to undertake the large scale translocation – whether there is a risk posed to the translocated agile wallabies by the translocation generally – whether the applicant poses a risk to the agile wallabies if a damage mitigation permit is issued

EVIDENCE – MISCELLANEOUS MATTERS – RULES OF EVIDENCE – ORDERS – public interest test – fit and proper person test – rules of evidence – Briginshaw test – onus of proof not required in administrative review proceedings – what weight, if any, to be placed upon evidence – public interest the balancing of interests including competing public interests – applying a distinction between public interest and a matter of public interest – the interests of the public are distinct from the interests of an individual or individuals – whether the applicant is suitable to be issued with a damage mitigation permit – appropriateness – value judgment to be exercised – the seriousness of a person’s conduct is a factor to be evaluated by the decision maker – there is no precise meaning of the term fit and proper

Acts Interpretation Act 1954 (Qld), s 32D, Schedule 1

Nature Conservation Act 1992 (Qld), s 4, s 5, s 8(2)(b),     s 9, s 11(a), s 71(a)(v), s 73, s 80, s 88(2), s 100I(5), Schedule – Dictionary

Nature Conservation (Administration) Regulation 2017 (Qld), s 2, s 5, s 21(1), s 21(4)(c), s 26, s 26(1), s 26(1)(a), s 26(1)(c), s 26(1)(f), s 26(1)(g), s 26(2), s 31(1), s 117,        s 119, Schedule 2.2, Schedule 6

Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 10(1), Schedule 6

Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 181, s 186, s 207

Nature Conservation (Wildlife) Regulation 2006 (Qld), s 35(2), Schedule 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 20(1), s 20(2), s 21, s 24(1), s 28, s 28(3)(b), s 28(3)(c), s 63

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Briginshaw v Briginshaw (1938) 60 CLR 336

Bushell v Repatriation Commission (1992) 175 CLR 408

Bushell v Secretary of State for the Environment (1981) AC 75

CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

EBH v DH [2001] QDC 016

Ellis v Home Office [1953] 2 All ER 149

GKE v EUT [2014] QDC 248

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kioa v West (1985) 159 CLR 550

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1978) 88 DLR (3d) 671

O’Sullivan v Farrer & Anor (1989) 168 CLR 210

R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd (1924) 1 KB 171

R v Mining Warden at Maryborough; Ex parte Sinclair [1975] Qd R 235

RPG v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 485

RPG v Public Safety Business Agency [2016] QCAT 331

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473

The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228

Water Conservation & Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492

Wiseman v Borneman (1971) AC 297

APPEARANCES &

REPRESENTATION:

 

Applicant:

S Ager

Respondent:

K McAuliffe-Lake instructed by L Rush

REASONS FOR DECISION

The parties

  1. [1]
    The applicant is the Agile Wallaby Project Inc. (‘the applicant’), which is an incorporated association within the meaning of the Associations Incorporation Act 1981 (Qld). It is a non-profit organisation comprising of almost 200 affiliated members.  Shai Ager (‘Ms Ager’) is the applicant’s president and spokesperson. 
  2. [2]
    The respondent is the Department of Environment and Science (‘the respondent’).  The respondent is responsible for, amongst other things, all environmental planning and protection policies for the state.[1]
  3. [3]
    An issue that the tribunal should consider in any proceedings is whether the enabling legislation makes any provision for an applicant to have standing as a party.  In this matter, the Administration Regulations provides that a ‘person’ who is given a notice by the respondent may apply as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) for an external review.[2]  Although the respondent takes no issue with the applicant litigating as a party, what needs to be answered is, does the applicant as an incorporated association have standing under an enabling Act, and if so, why? 
  4. [4]
    The applicant is not a person; it is a registered non-profit incorporated association.  Registration as an incorporated association gives the applicant separate legal status.  Notwithstanding that, the Acts Interpretation Act 1954 (Qld) generally provides that any reference to ‘a person’ in the enabling legislation includes a reference to a corporation[3] as well as an individual.[4]  In applying that principle, I am satisfied that the applicant has standing as a party in these proceedings.      

Chronology of events

  1. [5]
    Since the applicant first applied for a damage mitigation permit, there have been a myriad of milestones reached.  A brief chronology of this matter is.[5]

13 Oct 2017

The applicant applied for a ‘low impact’ damage mitigation permit (‘the original permit’) pursuant to the Nature Conservation Act 1992 (Qld) (‘the Nature Conservation Act’) to relocate wildlife from Trinity Beach in Cairns.  This permit was issued automatically (and in error).  This type of permit is only used for low-risk wildlife management activities.  For example, removing possums from a roof.

The respondent later advised the applicant that because it was seeking an authority to capture and translocate 150 agile wallabies, that required a more rigorous assessment under the Nature Conservation Act before a damage mitigation permit could be issued.  The original permit issued to the applicant was suspended and the applicant was invited to make submissions why that original permit should not be cancelled.

5 Dec 2017

The applicant made submission to the respondent regarding the original permit.  The respondent’s decision was to cancel the original permit.

12 Dec 2017

The parties met during a pre-lodgement meeting to discuss the applicant’s proposed new application for the damage mitigation permit.  Ms Ager represented the applicant and the respondent was represented by its own assessment officers.

25 Mar 2018

The applicant submitted a new application seeking a damage mitigation permit for the translocation of the wallabies.

05 Apr 2018

The respondent notified the applicant that further information was required in relation to 27 points that were considered not to have been adequately addressed in the application and supporting documentation. 

The applicant enquired as to the relevance of the notice requiring further information and sought clarification of the respondent’s request.

11 May 2018

The respondent provided feedback to the applicant’s queries made on 5 April 2018.  The applicant then provided those relevant responses to the respondent’s notice for further information sought. 

The respondent deemed that the applicant’s responses did not adequately address the issues, and in many cases, there was no new information provided.  The respondent decided to refuse the application based on that assessment.[6]

23 May 2018

The applicant contacted the respondent’s Permit and Licence Management Team requesting information relating to the respondent’s decision to reject the application for the damage mitigation permit.  The respondent subsequently contacted the applicant offering to address those concerns in writing.

07 Jun 2018

The applicant applied for an internal review of the respondent’s decision to reject the application for a damage mitigation permit.  Additional material to support the application was provided by the applicant at that time.

15 Jun 2018

The respondent undertook an internal review and assessment of its decision to reject the damage mitigation permit application.  The original decision was upheld.[7]

12 Jul 2018

The applicant filed an application with the tribunal to review the respondent’s decision made on 15 June 2018 to refuse to issue a damage mitigation permit. 

  1. [6]
    The chronology shows that the applicant originally sought to take 150 agile wallabies from Trinity Beach in Cairns.  It was proposed that those wallabies were to be released at two separate locations at Hartley’s Creek and Bessie Point.  The application has substantially been amended several times with the latest amended application now seeking to translocate 400 wallabies over a three year period.
  2. [7]
    The respondent considered that the granting of a damage mitigation permit to the applicant was prevented by a number of reasons, in particular the provisions of section 186 of the Nature Conservation (Wildlife Management) Regulation 2006 (Qld) (‘the Wildlife Management Regulations’). 
  3. [8]
    The respondent was concerned that the proposed taking of the animals would not materially affect the population size of the wallabies in Trinity Beach, and it would not materially improve or otherwise minimise the risk posed to human health or safety.  The respondent was also concerned that the proposed method of trapping, transport and release posed a real risk of significant adverse outcomes to the translocated wallabies, and the proposed management plan put in place by the applicant lacked particularity with regards to the actual physical and financial participation of parties outside the applicant.  It was considered that this would likely lead to the animals suffering harm. 
  4. [9]
    Furthermore, the respondent held a concern that the proposed release sites were insufficient so far as their suitability for the release of the wallabies.  A further significant concern held by the respondent was the applicant’s suitability having regard to the available financial and physical resources of the applicant. 

Background

  1. [10]
    The agile wallaby is generally a solitary animal, but it sometimes forms into groups when feeding on open pastures, a behaviour that may help with predator awareness.  The animal feeds mainly at night on a food source consisting on natural grasses and plants, but they may also forage by day.  In the dry season, the animal's range grows larger as the qualities of the grazing options deteriorate.
  2. [11]
    In a report commissioned from Biotropica Australia by Kenfrost Homes,[8] it was suggested that in the Cairns region, quality management is increasingly coming into focus as agile wallabies exhibit a capacity for significant population expansions beyond natural levels where the habitat of humans creates optimal breeding conditions. This can create management issues in areas where wallaby numbers begin to impact upon pastures, sugar cane and community areas; for example, sporting fields. 
  3. [12]
    The suburb of Trinity Beach is a coastal suburb situated approximately 20 kilometres north of the Cairns CBD in Far North Queensland.  Passing through the suburb is the Captain Cook Highway (‘the highway’) which connects the surrounding suburbs, as well as the city of Cairns to other localities such as Clifton Beach, Palm Cove, Port Douglas and Mossman.
  4. [13]
    With a population of over 5,000 residents, Trinity Beach has a number of amenities, including the State School and the Anglican School that are both situated in close proximity to a wide tract of land dedicated to sporting activities.  There are also a number of public parks plotted throughout the suburb for the use and enjoyment of the community. 
  5. [14]
    Trinity beach is the home of many forms of wildlife, including a large population of agile wallabies.  There are two areas within Trinity Beach which the applicant suggests are of concern regarding the overabundance of agile wallabies.  The first area is the council sports reserve, described as the Northern Precinct or the sporting precinct.  This area caters for much of the community’s sporting activities such as AFL, soccer, cricket, lawn bowls, baseball, polocrosse and a pony club. Passing through a corridor close to the highway in the suburb is the waterway called ‘Moore’s Gully’.  Moore’s Gully also crosses the highway and passes through the boundary of Northern Precinct.  The second area is a new housing development referred to as the Southern Precinct, although it has been referred to as the Bluewater estate, the Bluewater housing development or variations to those names. 
  6. [15]
    The applicant’s amended application seeks to capture 400 wallabies over the next three years and to use a variation of methods to capture the animals, in particular the Thomas Trap method.  Upon capture, the applicant’s intent is to translocate the wallabies to specific areas at Bessie Point, Hartley’s Creek and other possible sites in the Smithfield area at the Kuranda Skyrail and the Cattana Wetlands.  A discussion relating those locations will be undertaken later in these reasons. 
  7. [16]
    It is noted that although the applicant is a self-funded non-profit organisation, it is seemingly a well organised, dedicated and highly motivated group of individuals focused primarily on the welfare of the agile wallabies in the Trinity Beach area.  Over an extensive period of time the applicant has monitored and recorded the deaths and/or injuries of agile wallabies in that area, along with the known causes of those deaths or injuries.[9]  During the first 10 months of 2019, over 450 wallabies were known to have died, with the majority of the deaths being caused from road incidents.  Other causes were from dog attacks, and there was the concerning event during August 2019 when approximately 40 wallabies were suspected of being poisoned over a period of a week. 
  8. [17]
    Other concerning incidents involved the wallabies colliding with a cyclist.  The cyclist was on his way to work when a wallaby hopped into him knocking him from his bike.  He required hospitalisation for treatment to the significant spinal injuries he received from that incident.   
  9. [18]
    There have been a reported incidents involving wallabies attacking children at the local state school where one child received injuries.[10]  As far back as early 2018 the principal of the Trinity Beach Anglican School raised concerns with the local government councillor for that area, Councillor Brett Olds.  There were a number of concerns voiced at that time by the principal, including the wallabies utilising the athletics field at the school for a food source, and thus having to coexist with the students during school hours.  The principal also raised a concern about some wallabies approaching students from the school in an intimidating and menacing manner.  Similar reports were also received from the president of the local Bowls club who witnessed children and adults being attacked by wallabies.     
  10. [19]
    An even earlier concern was raised with Councillor Olds in June 2017 about an even earlier incident as far back as 2016.  Those complaints related to separate attacks by wallabies on two young children.  In one incident, a child sustained a significant lengthy injury to the torso and on the other occasion, the other child received a significant gash to their leg.      
  11. [20]
    Prior to the start of the proceedings, a viewing was undertaken of the Trinity Beach sporting precinct, Moore’s Gully and the Bluewater housing estate by the tribunal and representatives from each party.  In regard to the sporting precinct, although it was mid-morning, a large number of wallabies were observed in and around this area.  Some were inadvertently trapped in behind a large chain link wire fence.  It was noted that affixed at various points along that fence were one way gates designed and installed specifically to allow the wallabies to exit the enclosed area.  It was further noted that there was visible damage at varying heights along the inside of that fence.  The applicant said that the wallabies crashing into the fence in an attempt to escape the area caused the damage.
  12. [21]
    Noticeable on the ground in the area was an overabundance of faeces in varying stages of decay, obviously as a result of numerous wallabies in that area.  Although the sporting ovals in the sporting precinct and the sports fields at the nearby schools were not part of the viewing, judging by the amount of faeces observed on the ground it could reasonably be assumed that those areas were also littered with wallaby faeces. 
  13. [22]
    A further observation was that there was nothing in the form of a suitable fence or barrier preventing the wallabies from gaining access to the highway from the sporting precinct.  Dead wallaby carcasses were noted on the highway that gave every indication that they were the subject of an impact with a motor vehicle.  When the viewing was undertaken of the Bluewater housing estate, it was noted that although an attempt had been made to put into place a temporary barrier or fence between the estate and the highway, this was clearly ineffective in preventing wallabies accessing the highway.
  14. [23]
    When the hearing commenced, the respondent’s position was that the damage mitigation permit may only be issued if the provisions of section 186 of the Wildlife Management Regulations were satisfied.  The respondent correctly identified to the tribunal that if the tribunal was satisfied that the action proposed by the applicant under the damage mitigation permit is likely to cause unnecessary harm to the animals, then it may exercise the discretion not to issue the permit.  However, if the tribunal was not satisfied that any harm would be caused, then it can go on to contemplate the other considerations found in the legislation and determine whether it should exercise its discretion to issue the permit with or without conditions.[11]  The tribunal’s authority to issue a permit, with or without conditions is the subject of further discussions later in these reasons. 
  15. [24]
    The respondent went onto tell the tribunal that there were other considerations which must be taken into account, but they were secondary to the tribunal being satisfied that the proposed action to be undertaken by the applicant will have to be humane, and not likely to cause unnecessary suffering to the agile wallabies.[12] 
  16. [25]
    The respondent also conceded that the tribunal could be satisfied that there presently is, or may be a threat to a person’s health or wellbeing resulting from harm caused by the agile wallabies.[13]  This concession arises from a previous agreement reached between the parties on that point.[14] 
  17. [26]
    Having conceded that the agile wallabies in the Trinity Beach area are, or have the potential to be a threat to the health and wellbeing of humans, and that the issuing of a damage mitigation permit will not detrimentally affect the survival of the animals in the wild, the only remaining concerns raised by the respondent centered upon three issues.  The first issue relates to the future wellbeing of the wallabies including a likelihood of a potential risk to them because of the applicant’s proposed method of trapping or capturing. 
  18. [27]
    The second issue relates to the suitability of the proposed release sites at Bessie Point and Hartley’s Creek.  The third issue relates to the suitability of the applicant to undertake the translocation, including issues such as the applicant’s knowledge and experience, its ability to finance the translocation process, along with any likelihood that it will disobey the conditions of a permit.
  1. [28]
    Turning to the applicant’s case, in considering the applicant’s application, the Nature Conservation (Administration) Regulation 2017 (Qld) (‘the Administration Regulations’) expressly provides that the tribunal must have regard to a number of factors.[15]  Those factors relevant in these proceedings are what impact, if any; the activities undertaken under the damage mitigation permit may have on the conservation of the agile wallabies.[16] 
  2. [29]
    The applicant suggests that its proposal of translocating the wallabies will enhance the conservation and survivability of those animals, not only in the capture area, but also in the release sites.  Whereas the respondent said that the capture and translocation efforts would have little effect upon the wallaby population at the capture locations.  
  3. [30]
    In regard to the applicant’s character and structure, the applicant proposes that its organisation and members are of good character and they are suitable and appropriately qualified to undertake the onerous task of capturing and translocating the agile wallabies.  Their focus is on contributing to the conservation of nature.
  4. [31]
    In consideration to any proposed contribution by the applicant to the conservation of nature,[17] nature is defined within the legislation as to include, amongst other things, all aspects of nature, including ecosystems and their constituent parts; all natural and physical resources; natural dynamic processes; and the characteristics of places, however large or small.[18]  The term all aspects of nature provides a broad aspect to the definition, and in my view, agile wallabies fall within that meaning.  The applicant proposes that it will apply appropriate safe handling practices during the capture and transportation of the wallabies, and testing will be undertaken on the animals that are injured or sick, and if required, those animals will be euthanised to address transmittable disease issues.
  5. [32]
    Whilst the respondent accepts that the Standard Operating Procedures (SOPs) referred to in the applicant’s application are appropriate and useful, the suggestion by the respondent is that the application does not otherwise demonstrate sufficient detail necessary to allow the tribunal to assess whether the applicant will be compliant with the legislative requirements. 
  6. [33]
    The respondent went on to say that broadly speaking, the relevant deficiencies in the applicant’s case are –
    1. (a)
      the lack of experience and expertise,
    2. (b)
      the lack of detail and particulars in the proposed translocation method,
    3. (c)
      a complete absence of any budget and a lack of access to necessary funding; and
    4. (d)
      an absence of appropriate or suitable release sites.[19]

Legislative pathway

  1. [34]
    The Nature Conservation Act provides for, amongst other things, the conservation of nature.[20]  Nature includes all aspects of nature, including all natural and physical resources.[21]  Conservation is the protection and maintenance of nature while allowing for its ecologically sustainable use.[22] 
  2. [35]
    Ecologically sustainable in relation to wildlife means and includes the taking and use of wildlife[23] through methods such as netting, snaring, trapping, catching or any attempt to do any of those things.  To use an animal is defined as, amongst other things, moving the animal.[24] 
  3. [36]
    An analysis of the actual protective status of the agile wallaby is that they are defined as mammals and are indigenous to Australia as native wildlife.[25]  Therefore, they are protected wildlife and defined within the relevant legislation as ‘least concern wildlife’.[26]      
  4. [37]
    The applicant is seeking a damage mitigation permit. The purpose for which a damage mitigation permit may be issued is to take, keep or use a protected animal if the animal is causing, or may cause damage or loss; or represents a threat to human health or wellbeing.[27] 
  5. [38]
    However, consideration should be given as to whether there is a risk that the conservation of the animal will be affected.[28]  This can be achieved in a number of ways, including making the damage mitigation permit conditional and only issuing the permit in limited circumstances; or regulating or limiting the activities that the applicant is authorised to do under the damage mitigation permit.[29]  The maximum time that the damage mitigation permit can be issued for is three years.[30] 
  6. [39]
    Aside from all of those provisions just discussed, the Administration Regulations expressly provides that there is a requirement for the respondent to consider each application and decide whether to grant the authority, with or without conditions.  Or alternatively, the application may be refused if it was believed that the applicant was not a suitable person to hold the authority having regard to their inability to carry out activities under the permit in a competent and ethical way.[31]  
  7. [40]
    When considering an application for a damage mitigation permit, the Administration Regulations provides what is seemingly an unfettered discretion to the decision maker to take into consideration anything else that may be considered appropriate to achieve the object of the Nature Conservation Act.[32]  However, any taking of an agile wallaby, being a least concern species,[33] may only be authorised under the Nature Conservation Act if the taking of the animal is consistent with the management principles for the wildlife.[34]
  8. [41]
    The management principles provide that protected wildlife[35] is to be managed so as to, amongst other things, conserve the wildlife and its values; ensure the survival and natural development of the wildlife in the wild; and identify, and reduce or remove the effects of threatening processes relating to the wildlife.[36]

The tribunal’s role  

  1. [42]
    These proceedings are a product of the respondent’s decision to refuse the applicant’s application for a damage mitigation permit.[37]  Because of that refusal, the applicant sought an internal review of that decision.  That internal review was undertaken[38] and the respondent reached the same conclusions.  The appropriate notice was then provided to the applicant, who then exercised its discretion to review that decision before the tribunal.[39] 
  2. [43]
    The undertaking of a review of the respondent’s decision before the tribunal is an administrative review. Although there is no presumption that the respondent’s original decision is correct, unlike a judicial review, the tribunal’s function is to review the decision, not the process by which it was arrived at, nor the reasons for making it.[40]
  3. [44]
    In conducting proceedings for an administrative review, the tribunal effectively stands in the shoes of the respondent and the review must be a fresh hearing on the merits of the application.[41]  Therefore, the tribunal is subject to the general constraints to which the administrative officer whose decision is under review was subject to, namely that the relevant power must not be exercised beyond the purpose of the enabling legislation.[42] 
  4. [45]
    Clearly the issues of the agile wallabies in the Trinity Beach area are very dear to the hearts of many, in particular the applicant.  In arriving at the correct and preferable decision, the tribunal is obliged to act with fairness and detachment.  Notwithstanding that, there has been voluminous material provided to the tribunal citing harm done to the wallabies, and by the wallabies, because of the present circumstances.  Although that may be upsetting to some, it is not the tribunal’s role to favour one party above the other or favour the ideology of a particular group within the community, and nor is commentary or public opinion considerations that the tribunal should turn its mind to, or be influenced by.  In other words, in arriving at the correct and preferable decision, the tribunal is obliged to act with fairness and detachment.
  5. [46]
    In regard to a determination on the merits of the application, it is theoretically conceivable that in some proceedings there could even have been many days, weeks, months or even a year or more since the original decision was made by a respondent, thus leaving it to the tribunal to then update or alter that decision if any new facts and circumstances require or warrant that course.  Logically, when making a decision, the tribunal is generally obliged to have regard to the best and most current information available.[43]  Therefore the question for the determination of the tribunal is not whether the original decision was the correct or preferable one on the material that was before the original decision maker, but rather whether the tribunal’s decision is the correct or preferable one based on the material before the tribunal at the time of the hearing.[44]
  6. [47]
    The respondent, apart from being a party to these proceedings, has a distinct role to play in administrative review proceedings.  That role is to use their best endeavours to assist the tribunal so that the tribunal can make its decision.  Because the decision maker is obliged to assist the tribunal to reach a correct and preferable decision, the decision maker’s role is not adversarial.  However, by the respondent discharging that obligation to assist the tribunal, it does not automatically mean that it cannot thoroughly test the evidence relied upon by the applicant.[45]   

Rules of Evidence and onus of proof

  1. [48]
    Subject to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and the enabling subordinate legislation, being the Administration Regulations, the conduct of this application was at the discretion of the tribunal.  When undertaking an administrative review and reaching the correct and preferable decision, the tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent that the tribunal adopts the rules, practices or procedures.  Notwithstanding that, the tribunal is still obligated to act fairly and according to the substantial merits of the case and must observe the rules of natural justice.[46] 
  2. [49]
    There is an existing long held principle that although a tribunal may not be bound by any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account.  The High Court has held that rules of evidence – 

… represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily disadvantage the opposing party.  In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.[47]

  1. [50]
    The application of natural justice and fairness are also important components in the conduct of a tribunal hearing.  In any administrative decision making framework, it is the tribunal’s duty to act fairly and to apply procedural fairness.[48] 
  2. [51]
    In regard to an onus of proof, under common law, the duty is upon one party, usually the one bringing the proceedings against another, to make out its case against the other party and to prove that their case has been established.  That is a concept developed over many years and the use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution.[49]  This is particularly true of the tribunal in exercising its review function, which by its statute, is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.[50]
  3. [52]
    Having particular regard to the tribunal not being bound by the rules of evidence, the notion of an onus of proof, which plays an important fact finding role in adversarial proceedings before judicial tribunals, has no part to play in administrative proceedings.[51]  Therefore, in these proceedings, there is no onus on either party to prove their cases to any requisite standard.

Method of capture or trapping 

  1. [53]
    Returning to the proposed method of trapping or capturing the wallabies, along with their future wellbeing and the likelihood of a potential risk. The applicant intends to apply the provisions of the SOPs devised and adopted in Western Australia for the trapping,[52] handling[53] and rehabilitation[54] of the wallabies.
  2. [54]
    Having acquired an agreement with the Cairns Regional Council for access to the proposed capture sites,[55] the applicant proposes that given the projected seasonal variation of the population size of the agile wallabies, the translocation operation would be timed to commence when the population is expected to be at its lowest, usually at the end of the dry season.  The capturing and handling of the animals will only be carried out on clear days in the late afternoon or early morning during a three to four hour window when the ambient temperatures are at their lowest. This is to prevent any issues of hypothermia in lower temperatures or any increased risk of myopathy that may be suffered by the animals when captured.[56]
  3. [55]
    The plan, which is set out in the applicant’s application, broadly focuses on a method of capture undertaken by the use of soft cage traps commonly referred to as ‘Thomas Traps’.  These traps will be used to capture the animals pursuant to the guidelines outlined in the SOPs adopted by the Western Australian Department of Biodiversity, Conservation and Attractions.  A food source, usually sweet potatoes, will be placed into the traps as a lure for the animals.  Once captured, the wallabies will be removed from the traps and placed into soft containment bags.  The animals will be sedated prior to being transported to the release sites where they are to be released.  
  4. [56]
    To assist the tribunal, directions were given to the parties to have a joint expert report authored to address the many issues that were raised.  The experts were Dr Lundie-Jenkins and Dr Cohen.
  5. [57]
    Dr Lundie-Jenkins has considerable experience in regard to conservation.[57]  He held the position of Junior Research Fellow in the University of New England from 1986 to 1988.  From 1989 to 1995 he was the research officer in the Northern Territory Conservation Commission and from 1995 he has worked as a professional zoologist/science leader and senior manager in the Queensland Government.  He is still employed by the Queensland Government and at present he is the Director of Wildlife and Southern Wildlife and Koala Operations.
  6. [58]
    In regard to Dr Cohen, in 1995 he attained a PhD in Zoology from the James Cook University.  For almost 35 years he has been working as a tropical wildlife biologist, mainly Far North Queensland.  For the past 17 years he has operated his own business, Wild About Australia.
  7. [59]
    Both experts gave evidence at the hearing.  Their evidence was extremely useful and was given in a frank and impressive manner. 
  8. [60]
    In their joint expert report, both experts indicated that the proposed protocols submitted by the applicant satisfied the relevant codes of practice and SOPs in relation to the capture, processing, transport and release of the agile wallabies in relation to the proposed translocation.[58]
  9. [61]
    Section 186 of the Wildlife Management Regulations provides that a damage mitigation permit may be granted to the applicant if the decision maker is satisfied that all the stipulated conditions have been met.[59]  It is noted that firstly, the respondent is satisfied that there is a threat to a person’s health or wellbeing resulting from the harm caused by the wallabies.[60]  Furthermore, the respondent is satisfied that any action under the damage mitigation permit will not detrimentally affect the survival of the wallabies in the wild.[61]
  10. [62]
    It appears that the only issue of contention relating to the method of capture is whether the proposed way in which the applicant proposes to take the wallabies is humane and not likely to cause unnecessary suffering to the wallabies.  There is a suggestion that there may be a risk, but there is nothing definitive.  In my view, the evidence does not support any hypothesis that the manner of proposed capture will harm the animals.  

Proposed capture area

  1. [63]
    Included in the joint expert report[62] was a query about what matters impacted upon the population size and health of agile wallabies.
  2. [64]
    It seems that Dr Lundie-Jenkins completed his part of the joint expert report without the opportunity to undertake a personal assessment of the population of the agile wallabies at Trinity Beach.  It was only on the morning of the second day of the hearing that he took the opportunity to conduct an inspection of that area.  Having undertaken that inspection, he had a better perspective with regards to understanding the dynamics of the wallaby population.  It altered some of the interpretation and some elements of his responses contained within the joint expert report.[63]
  3. [65]
    When asked what salient features of landscape management or attempts of landscape management he observed, he said that in regard to the sporting precinct area, it could not be challenged that there was a high-density population of wallabies occupying the site. 
  4. [66]
    There had been attempts at a landscape style management such as various types of fencing, of which some was ineffective, and some was highly efficient.  He then commented that some of the fencing was obviously compromised by the extent as to whether gates were left open or closed.  This type of landscape management is installed to effectively manage the access that the wallabies have to nutritious forms of forage such as the improved grasses on the sporting fields.  He added that in some areas, the fencing was clearly inadequate to maintain the wallabies within the allotted boundaries of the sporting precinct.[64] 
  5. [67]
    It was in his opinion that this was a situation where clearly there was a significant management issue for the sporting precinct area and it is an area in which there is probably the greatest amount of artificial or supplemented feeding opportunities for the wallabies to the extent that it supports that very high density of the animals.  That feature is created by the very nutritious, manicured, well maintained food source for the wallabies.[65]
  6. [68]
    He also said that in overabundant populations, such as suburban or otherwise developed areas where densities of animals are well above natural levels, competition between individuals and resources and mates can increase stress levels within the population and this will impact upon the health of the individual animals. 
  7. [69]
    His assessment of the population of the wallabies within the sporting precinct area was that there was a far greater population as compared to the wallabies found in the Bluewater housing estate.  That assessment was based on the observations that he made of the two areas, along with the recorded deaths and rescues.  He went onto say that although the two areas had been strongly compromised by the housing development and some of the roads and fencing within the Trinity Beach area, the two distinct areas were not subpopulations.  There was a level of connection between the wallabies that frequent or populate both areas.[66]
  8. [70]
    As part of his observations of the Bluewater housing estate area, Dr Lundie-Jenkins said that one of the challenges that was faced with decisions relating to these types of housing developments is that often the issues relating to the least concerned protected wildlife are not part of the planning approval considerations.  Consequently, local government councils will approve these types of developments without actually taking concern for the landscape planning or provide retention of sufficient habitat to allow the animals to exist without conflicting with residents and other activities within the area.  He went on to say that it was his view that the Bluewater housing estate is one of the many examples that happens when these types of decisions get made.[67]  He did not believe that the translocation of the wallabies would on its own address the management issues that currently exist with regard to the wallabies in Trinity Beach. 

Proposed release sites

  1. [71]
    Earlier in these reasons, it was indicated that the proposed release sites for the wallabies were at Hartley’s Creek and Bessie Point.  The proposed Hartley’s Creek site is located approximately 25 kilometres north of Trinity Beach and covers an area approximately 40 acres in size, or a little over 16 hectares.  There are no agricultural areas of significance located in the area of this site and there is permanent water, suitable food sources and an opportunity for the wallabies to disperse into the surrounding low areas of the MacAlister Range National Park.   
  2. [72]
    The Bessie Point release site is situated east of Cairns near the Trinity Forest Reserve and consists of an approximate area of 46 acres, or just under 19 hectares.  Like the Hartley’s Creek release site, there is also permanent water and suitable food sources available and an opportunity for wallabies to disperse into the Trinity Forest Reserve and adjacent properties. 
  3. [73]
    The applicant commissioned an assessment report to be undertaken on both the Hartley’s Creek and Bessie Point release sites.[68]  When inspected, the Hartley’s Creek site had approximately 3.71 hectares of suitable grassland, and the Bessie Point site had approximately 3 hectares.  While not sighted, indications were that the natural predators for the wallabies such as dingoes or wild dogs along with other normal predators such as pythons, raptors and crocodiles would be present in those areas.
  4. [74]
    The applicant’s amended application also proposes further release sites in the areas of the Kuranda Skyrail and the Cattana Wetlands, with both of those areas located in the Smithfield area north of Cairns.  Although no specific details are provided with regard to the Cattana wetlands, information was provided to the tribunal that described the size and features of the site at the Kuranda Skyrail.  Mr Warren Entsch MP gave evidence at the hearing.  He is the local member of the Federal Parliament representing the electorate of Leichardt, of which Cairns and its surrounding areas are part of.  He told the tribunal of an email that he had received from Mr Ken Chapman, Chairman of the Skyrail Rainforest cableway.[69]  In that email, Mr Chapman wrote –

We are aware of the plight of the large population of agile wallabies trapped in an area of the sports fields at Trinity Beach and of your concern to facilitate the rescue and relocation of some of these wallabies to a safer location.  Skyrail has a large grassed area behind our Smithfield Station that would appear to be well suited for this purpose.  We do see wallabies on the property from time to time so it does appear to be good habitat for them.  I can confirm that we would be very happy to have the site assessed for suitability and to accept the transfer of wallabies to the site as appropriate.

The Skyrail property is a total of 43 hectares of freehold and includes around 5 hectares of flat grassed area between a permanent freshwater lake and hillslopes with more than 30 hectares of open savanna woodland and rainforest. Adjoining the site to the South is the Tjapukai Aboriginal Cultural Park property that has a similar large flat grassed area with adjoining hillslope woodlands. There is no fence between the two sites so it effectively forms a very large continuous area. Shirley Hollingsworth, General Manager of Tjapukai has agreed that they would also be prepared to accept wallabies and so we are able to offer a large combined area of suitable habitat for relocation of the threatened wallabies.[70]

  1. [75]
    It would seem from the contents of that email, there is a significant amount of support by the organisations controlling the land at those areas just mentioned for the release of the wallabies.
  2. [76]
    The applicant proposes that it will undertake not to release the wallabies into any site, unless the respondent approves that site, with the amount of released animals not exceeding the number that would be approved for each site.  This in my view is a sensible approach to avoid overburdening the environment and thus impacting upon the animals themselves.
  3. [77]
    Reference was made in the joint expert report of research undertaken in 2003 at a site in Darwin, Northern Territory.[71]   During this research, agile wallabies were tracked in the wet and dry seasons and the home range for the wallabies was larger in the dry season, when food quality was poorer.
  4. [78]
    Dr Cohen said that the assessment undertaken for the 2003 study in Darwin was the most reliable work to date, and he had no issue with that assessment.  However, he went on to point out that he has personal experience with the Darwin agile wallaby population and there were are a couple of variations that needed to be considered when making a comparison between the Darwin wallabies and the wallabies at Trinity Beach.  There was more connectivity of habitat in the Darwin area resulting in the movement of the animals being relatively unrestricted compared to the wallabies in the Trinity Beach area. The wallabies at Trinity Beach are dispersed within and around sporting fields, housing, roads and some areas of undeveloped habitat.  He suggested that a territorial range study of the Trinity Beach wallaby population would result in a significant less average home range than that shown by the study of the Darwin wallaby population.[72]
  5. [79]
    Another point made by Dr Cohen was that the Darwin area had a much more distinct and drastic wet to dry season cycle compared to that of Cairns.  The availability of green grass in the Trinity Beach area was considerably more regular than what occurred in Darwin.  He went on to add that the more regular availability of high quality food is likely to change the dynamics of the agile wallaby population in the Trinity Beach area, possibly leading to higher densities and smaller territorial home ranges.
  6. [80]
    Both experts agreed that with regard to an appropriate measure for estimating the carrying capacity of a site for agile wallabies is the method used in the existing ecological reports.  That is, the theoretical carrying capacity of a release site should be 24.5 wallabies per hectare. 
  7. [81]
    In respect of the nominated release sites of Hartley’s Creek and Bessie Point, Dr Lundie-Jenkins acknowledged that he had not had the opportunity to conduct either a detailed desktop or field inspection of the proposed sites, therefore he was limited to what extent that he could confidently predict or estimate the population of agile wallabies that could properly be supported at those locations.  It appears that he accepted that the adjacent habitats in the surrounding low land areas of the MacAlister Range National Park next to the Hartley Creek release site and the adjacent Trinity Forest Reserve at the Bessie Point release site would potentially support the release of the animals at those sites on the assumption that the animals will disperse into those adjoining habitats. 
  8. [82]
    Evidence was also heard from Mr Kye Mitchell.  He has a degree in Zoology, majoring in Ecology.   In his evidence; Mr Mitchell calculated the carrying capacity of the number of wallabies at the proposed release sites.  He arrived at his calculations by basing his analysis on the long-standing agricultural grazing principles (sheep), then converting the grazing ratio of sheep to macropods.  He chose an eastern grey kangaroo as the macropod, which is significantly larger than an agile wallaby.  He suggested that the total conservative carrying capacity for the proposed release sites was much greater to that which was estimated in the joint expert report.  Similar to the suggestion of Dr Lundie-Jenkins, Mr Mitchell said that the wallabies could disperse into the surrounding areas such as the adjacent MacAlister Range National Park and the Trinity Forest Reserve.
  9. [83]
    To assist the tribunal, a report was compiled by Johan Hurter and Avean Hurter (‘the Hurter report’).[73]  This was an assessment regarding the stock carrying capacity of the proposed release sites.  The Hurter report suggested that the carrying capacity of stock is generally expressed as units of dry sheep equivalent (‘DSE’), dry cows equivalent or animal equivalent. 
  10. [84]
    The Hurter report said that an intensive study on the carrying capacity of agile wallabies and their impact on rangeland had been earlier initiated by Meat and Livestock Australia, the Charles Darwin University and the Northern Territory Department of Primary Industries and Fisheries.  That study found that with the presence of permanent water, the carrying capacity could be increased tenfold.  The estimate given by the Hurter report is a range between 24.5 to 26.5 agile wallabies per hectare, which is not altogether inconsistent with the joint expert report.
  11. [85]
    By way of conclusion on the issue of the release sites, there appears to be a degree of support for the applicant from people connected with two of the release sites.  There is also the support of Mr Chapman from the Skyrail Rainforest Cableway and Ms Angela Freeman.  The support of Mr Chapman has earlier been discussed.  Ms Freeman is the co-owner of a parcel land which includes some 28 hectares located adjacent to the Hartley Creek Crocodile Adventures wildlife attraction.  She gave every indication that she is willing to provide full support and approval to the applicant to release the translocated wallabies onto her property.[74]  
  12. [86]
    Having regard to the evidence just discussed, it appears that the overall feature of the evidence of the experts is that the proposed release sites are appropriate for the release of the translocated wallabies.  Having regard to that, I am satisfied that those parcels of land proposed by the applicant as the release sites are suitable for the purpose of the applicant’s application.

Public interest test

  1. [87]
    It appears that the problems arising from the overabundance of wallabies within Trinity Beach has been a long-standing issue and a distinct concern for the members of the community of that area.  During the proceedings, there was a suggestion of the shifting of the responsibility that had taken place with regard to where that responsibility lay as to who should take affirmative action to alleviate the overabundance of wallabies. 
  2. [88]
    The Cairns Regional Council, the local government authority for that area, suggested to the tribunal in the documentation it provided, that it was not the Council’s responsibility because management for wildlife issues such as what was occurring in Trinity Beach was the province of the State Government.  On the other hand, the respondent told the tribunal that there should have been greater input by the Cairns Regional Council into the management of the wallabies.
  3. [89]
    In his evidence to the tribunal, Dr Lundie-Jenkins accepted that if the applicant was to undertake the task of translocating the wallabies from Trinity Beach, then this would be a lessening of the risk that the wallabies posed to human health, safety and wellbeing.[75]  This is supported by an earlier observation he made that the long-term reduction of the wallaby population in the Trinity Beach area would only be achieved through an integrated program combining both direct population interventions and landscape management of food and water availability.  He was also of the opinion that these were the primary drivers of the current population imbalance.[76]  In regard to his reference to the phrase direct population interventions, he said –

in the instances of least concern animals where they’re having impacts on populations, direct population interventions can mean culling. So in some circumstances, it would be seen as both more humane and more practical to actually cull animals that became overabundant. Other direct population interventions would be relocations. Other population interventions would be the type of reproductive control and, again, that would depend very much on the circumstances with regards to the population as to whether that was likely to be effective or not.[77] 

  1. [90]
    When asked as to who he believed had the responsibility to carry out those actions, he said –

Well, the way in which the regulation and the legislation is written is that responsibility in these circumstances falls on landholders. And in this regard, I guess, where the primary site of concern is council-related land, there’s a primary responsibility for the council to identify that there is an issue with human health and safety and to work with the community, I guess, to identify measures to effectively manage that. The department’s role in this circumstance is as a regulator. So the department regulates authorities and permission under the Nature Conservation Act to allow authorised people to conduct activities to interact with protected wildlife.

 He went on to say –

I don’t believe relocation in its own will address the management issue that exists with agile wallabies at the site. And, hence, the council supporting you to implement one aspect of what needs to be a broader program won’t achieve the ultimate outcome of effectively managing that wallaby population. I’ve not seen any documentation of an integrated plan to manage wallabies at the site, and that’s something I believe council should be taking the lead on. And I’ve certainly been involved in providing advice to other councils and provided input on behalf of the department to management plans for wallabies and macropods in other parts of the state.[78]

  1. [91]
    When asked whether the applicant’s management plan addressed the issues, Dr Lundie-Jenkins said –

My professional opinion is that this doesn’t represent a comprehensive plan for managing wallabies on that site. It’s a suggested range of measures that could potentially be part of a plan, but it doesn’t, to my mind, represent an integrated plan.[79]

I see there’s a proposal for that to occur, but I haven’t seen any evidence of a commitment by the local government to actually implement or work cooperatively with the government or with others to develop and implement a plan.[80]

  1. [92]
    There was a later exchange between Dr Lundie-Jenkins and myself where he was asked if it was his view that although the applicant was enthusiastic for the translocation to take place, there had been nothing put in place by the Cairns Regional Council to assist the applicant.  The response by Dr Lundie-Jenkins was  –

Not that we’ve seen. As I said, there’s a number of suggestions or recommendations in here that I believe the Agile Wallaby Project has put forward for consideration as part of landscape measures to address that, but I haven’t seen any evidence that the council has either endorsed these or seeks to implement them in a more integrated plan. As I said, my reading of this, essentially, three-page document is that it’s some recommendations with regards to some actions that could be taken in managing that landscape to improve the situation.

  1. [93]
    The impression given by the testimony of the elected representative of the Cairns Regional Council for the Trinity Beach area, Councillor Brett Olds and the Federal Member for Leichardt, Mr Warren Entsch MP, was that the respondent was a ‘do nothing’ organisation and there had been some ‘buck-passing’ occurring.  This is not my view of the respondent.  My understanding of the respondent’s role is as Dr Lundie-Jenkins described; it is a regulator.  However difficult it is for some to digest; the respondent has the responsibility to carefully consider the appropriateness or suitability of an applicant and the merits of an application weighed against the environmental planning and protection legislation and policies.  Dr Lundie-Jenkins was asked to comment on this issue, and whether the Cairns Regional Council had taken any formal affirmative action and endorsed and/or integrated a plan of action to manage the wallaby population.  His response was that his first involvement in this matter commenced in October 2018, and since that time he had seen no evidence of that happening.[81]
  2. [94]
    When asked about his knowledge of who or which organisation controls the areas within Trinity Beach which was of concern, Dr Lundie-Jenkins commented –  

Well, certainly, the northern precinct which is all sporting fields, which, I think, is Cairns Regional Council land which is then leased or has occupational agreements with sporting bodies to utilise those sites. In the southern precinct, it’s largely – there’s some reserved land, I think, in the northern part of the southern precinct, which I’m unsure of who manages that reserve, and then the southern parts are all private land, but they’re land which is effectively within Cairns Regional Council’s local government area. So, effectively, council has some say and authority both with regards to the approval of those developments, but then in relation to imposing local bylaws and such restrictions on landholders in those areas.[82]

  1. [95]
    Where the responsibilities lie, and if there are boundaries to be drawn with regard to the responsibilities of either the local government or the state government, this is not something which the tribunal should be drawn into and nor does it have any persuasion towards the decision reached.  However, there an important principle to be considered with regard this application, and that is the public interest principle. 
  2. [96]
    It must be identified that the responsibility of the tribunal in this matter is to reach the correct and preferable decision based on the material and the evidence before the tribunal at the time of the hearing.  It is not the responsibility of the tribunal to find fault or direct the responsibility for the overabundance of wallabies in Trinity Beach upon either the local government or the state government.  In my view, that responsibility falls outside the purview of this administrative review.
  3. [97]
    An interesting observation was made when the respondent expressed a view that the tribunal was not in a position to finally resolve this matter, or ultimately fix the complex issue facing the community because of the impact of the wallabies.  The respondent went on to say that if the tribunal were to proceed down that path, then there was a real risk that it would fall into error in so doing.  What the respondent was effectively saying was that regardless of what the community thinks, what the community wants or what the community feels, ultimately the decision reached must fall within the scope, power and provisions of the applicable legislation.[83]
  4. [98]
    I agree with the respondent’s comments on that point so far as any decision of the tribunal must be lawfully made.  Apart from the other nuances involved in this matter including the suitability of the applicant, this case is very much one of public interest.  My view on that point is supported by the provisions of section 26(1)(g) of the Administration Regulations, which describes that interests of the public is one of the considerations for the granting of a damage mitigation permit.
  5. [99]
    In its case, the applicant strongly suggested that I should pay particular attention to the public interest factor.  In addressing the tribunal, Ms Ager said that for quite some time the community had been concerned, not just for the animals, but also for the residents who live in, or travel through Trinity Beach.  She went on to say that there was significant support for what the applicant was seeking to do.  She gave an example of an event in the week leading up to the hearing where 4,000 people signed a petition in support of the translocation project.[84]  Clearly her comments suggested that there was a significant amount of public interest, along with support shown by the residents of Trinity Beach, and the community of Cairns in general for the project.
  6. [100]
    The question that arises is, does the public interest test apply to the crux of this application and what consideration should the tribunal give to the foundation of the application’s application, having particular regard to the Administration Regulations that requires that I must have regard to the public interest.[85] 
  7. [101]
    Although the term public interest is referenced in Administration Regulations, the legislation does not provide a definitive explanation of that term.  However, the authorities suggest that the term is an indivisible concept[86] and an interest common to the public at large or a significant portion of the public. 
  8. [102]
    Any consideration of the public interest test involves the weighing up of benefits and detriments.[87]  The discovery in any particular case of where the public interest lies will often depend on a balancing of interest, including competing public interests.  The term is very much a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.  The High Court in O’Sullivan v Farrer & Anor held that when the term is used in legislation, this introduces the necessity for a discretionary value judgment to be made, but only in so far as the subject matter and the scope and purpose which the legislation enables.[88] 
  9. [103]
    The notion of public interest was also the subject of the High Court’s deliberations in Sinclair v Mining Warden at Maryborough and Anor where it was held that in regard to the principle of public interest –

the interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest.[89]

  1. [104]
    In Director of Public Prosecutions v Smith, the Victorian Court of Appeal considered the issue of public interest and held that there was a distinction between the public interest and a matter of public interest.  That court was of the view that –

public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members.  The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.[90]

There are several and different features and facets of interest which form the public interest.  On the other hand, in the daily affairs of the community, events occur which attract public attention.  Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.[91]

  1. [105]
    This matter has been the forefront of significant discussion within the community of Cairns, in particular the suburb of Trinity Beach and surrounding areas. It has also been the subject of considerable coverage by both the electronic and print media and understandably the issue of the agile wallabies in the Trinity Beach area is very dear to the hearts and minds of the applicant and its membership.  More importantly, it is a sensible argument to say that the wallaby population at Trinity Beach and the associated factors hold significant public interest within the general community of Cairns.  
  2. [106]
    It is quite clear the authorities have settled a well established principle that the interests of the public are distinct from the interests of an individual or individuals.[92]  The situation regarding the agile wallabies and the impact upon the community of Trinity Beach and Cairns in general, is in my view, a public interest as opposed to the individual interest or the interest of individuals connected or associated with the applicant.
  3. [107]
    Having regard to the circumstances of this matter, I am satisfied that I should particularly apply the scope and purpose of the legislation and adopt the principle of public interest into my considerations.

Suitability of the applicant

  1. [108]
    Turning now to whether the applicant is suitable as provided for in the Administration Regulations.  The issue of the applicant’s suitability is unquestionably significant in the determination as to whether a damage mitigation permit should be issued. 
  2. [109]
    Discretion is provided to the tribunal as to a consideration of whether or not a person is suitable to hold a damage mitigation permit.  What has to be considered and given regard to is; does the applicant’s ability allow the organisation to carry out the activities associated with their proposed project, and do they have the capacity to undertake that project in a competent and ethical way.[93] 
  1. [110]
    The respondent has submitted there are circumstances that preclude the applicant from being determined as a suitable person.  Those circumstances include a suggestion that the applicant did not possess the financial resources to undertake the translocation process, and this in itself greatly impacts upon the applicant’s suitability to be issued with the damage mitigation permit.  There is also a suggestion that the applicant and its members are not suitably qualified, or, they do not have the requisite experience to undertake the translocation process.   
  2. [111]
    In analysing the structure of the applicant’s organisation, not only is it a non-profit group, but the membership is made up of volunteers who seemingly give their own time to the organisation’s core concept. Apart from others who may share an executive role within the structure of the applicant’s organisation, the respondent placed much emphasis upon the qualifications and suitability of Ms Ager, or as it was suggested, rather the lack thereof. 
  1. [112]
    What the evidence showed was that Ms Ager is a qualified ecologist, and at the time of the hearing she was employed with the Kuranda Koala Gardens as a zookeeper/wildlife handler and guide.  She is the applicant’s president and project manager and she suggested that she has demonstrated her experience in managing a large rehabilitation group and the evidence shows that she has considerable wildlife handling experience relevant to the agile wallabies.  However, of interest was the concession that she made when she said that she had no experience in capturing healthy animals.[94] Yet video footage introduced into evidence gave every suggestion that she was experienced, albeit at capturing injured wallabies.  But perhaps injured wallabies, although still very much active and mobile, are conceivably less mobile than a healthy wallaby. 
  2. [113]
    Other members of the applicant’s executive are the project co-ordinator, Mr Kris Vleeshouwer.  He is said to have extensive experience in public administration at a federal level, including managing large-scale strategic projects.  A local qualified veterinarian, Dr Fargher aids and directs the organisation with regards to the management of injured wallabies, along with the safe method of capture.
  3. [114]
    In his evidence to the tribunal, Dr Faragher was of the opinion that Ms Ager, along with her other team members, were suitable to carry out the translocation of the animals.  He based this opinion on his interactions with the applicant and added that they were more than capable of caring for the wallabies subject to the application.[95]
  4. [115]
    Notably, there is no information or evidence before the tribunal to suggest that any member who holds an executive position within the applicant’s organisation, or any other member of the organisation has any adverse criminal history or police information to suggest that they are a risk or a danger to any native, wild or captured animal.[96]
  5. [116]
    Regarding the financial resources of the applicant, the applicant accepted that being an incorporated non-profit organisation it has limited access to funding.  The applicant had not received any financial government grants to help fund the relocation process that they seek to undertake. 
  6. [117]
    The respondent suggested that those costs associated with the large-scale translocation of the wallabies would be comparable to the costs expended in a similar Western Australia project involving the relocation of a large number of grey kangaroos (in excess of 120). That project was undertaken in the Baldivis area south of Perth (‘the Baldivis project’) and was apparently costed at approximately $100,000. 
  7. [118]
    Dr Page was an expert witness called by the respondent.  She was formerly the principal virologist with the Western Australian Department of Biodiversity, Conservation and Attraction where her role was to provide advice on fauna matters.  In 2019 she was involved in the Baldivis project.  Her role or involvement in the project seems confined to being part of a committee that authored the SOPs for the project.  The tribunal was informed that funding of the project came from a joint venture between the Western Australian State Government and a private developer.
  8. [119]
    Dr Page’s evidence suggested that the necessary funds to undertake the translocation task at Trinity Beach would be in excess of $100,000.  She based this estimate on the Baldivis project, which was a project undertaken over a much shorter period of time than what is proposed by the applicant’s project. 
  9. [120]
    In her affidavit,[97] Dr Page explained the difference between the terms ‘relocation’ and a ‘translocation’.  She said that the Baldivis project was classed as relocation, not a conservation translocation.  She went on to explain that relocation is when animals are moved from one location to another because they are likely to be in harm’s way.  She said that a conservation translocation is to establish or reinforce a population for conservation purposes and usually applies to threatened species.[98]  Despite earlier giving a clear characterisation of the difference between the two terms, and saying that the Baldivis project was a relocation, her affidavit later because somewhat confusing as she at times often referenced the Baldivis project as being both a relocation and a translocation.
  10. [121]
    Reference has earlier been made within these reasons about the applicant’s financial position and whether that is a factor to be determined with regard to its suitability.  Notably in Dr Page’s affidavit, no reference was made of any costs associated with the Baldivis project.  During her cross-examination, she was asked about the Baldivis project, however none of the questioning related to any associated costings of that project.  When Dr Page was made available for re-examination, and notwithstanding that Ms Ager had not raised anything relating to the costs of the Baldivis project, counsel for the respondent had the following exchange with Dr Page.

The Baldivis translocation was enormously well funded, wasn’t it? ---Yes, I – I believe. I don’t have exact figures, but I do know that it was a - - -

No. No? --- - - - very expensive situation.

Do you have a rough idea about approximately how much it cost to move 127 wallabies – 127, sorry, kangaroos? ---I can’t say definitively. I know that the department contributed over – probably over $50,000 towards the project, and that didn’t include the income contribution of all its staff that were involved, but on top of that there would have been – the developer would have paid the contractor, I believe, and that would have been quite expensive, but I – I can’t say how much the – the contractor charged, so yeah. I could at least say that it was very much more expensive than $50,000.

Would it be fair to say it would be more than $100,000? ---I would – I – in my opinion, I think it would be well in excess of that, yes. If - - -

Well in excess - - -? --- - - - you added up - - -

- - - of 100,000? --- - - - everything. Yes.

It was very well resourced as far as participants go too, wasn’t it? ---It was. The department actually made a number of officers available to this because it was such a high-profile situation. Everybody from research scientists to myself in the planning phases, and some of my other colleagues. There was also the Wildlife Office was here to assist in a logistics and – and managing the conflicts at the site, and then there was a number of ranger staff and some volunteers that were involved in the radio tracking and checking the data afterwards.

As far as you were aware, would the Western Australian Government have issued a permit such as was issued for the Baldivis relocation to a community group? ---No. I think that would – I don’t think that they – well, it depends if the individuals in the community group had specific expertise, but part of our permitting process was review the experience and expertise of the people involved, and if there wasn’t people with direct experience and expertise in the activity, then I – then in my role as the principal zoologist, I wouldn’t have advised that a permit get issued.[99]

  1. [122]
    When the respondent’s counsel was asked whether there were any particulars relating to the costs of the Baldivis project before the tribunal, it was conceded that there was none.[100]  What followed was a further exchange between Dr Page and myself.

Doctor, before I excuse you, just one question. The Baldivis relocation, who paid for that?---I believe, again, I wasn’t – wasn’t there for it, but I believe at the time when we were planning it, it was to be resourced from a number of areas.  The developer had to fork out quite a bit of money for it, I believe, but the department did also provide officers and also in excess of $50,000 for the research component of it.

So from that – can I take from that that some area was going to be developed and there was a developer involved, and as part of the approval process, he was, or that developer was to help or assist funding of a relocation of a number of animals from that area?---Yes, I believe that’s the situation.

And the Western Australian Government chipped in and helped out with the funds as well?---I think the Western Australian Government probably resourced a portion of it, which was more around the – the research part of it, but yes.

Could have been on a dollar-for-dollar basis? Are you aware of what the dollar – whether the figure was dollar-for-dollar or elsewhere?---No. I don’t know. Sorry.[101]

  1. [123]
    In submissions, the respondent suggested that the applicant had not submitted a budget, and its current financial assets of approximately $8,000 fell well short the costs that could be anticipated in the translocation of the agile wallabies from Trinity Beach.  The respondent strongly urged that significant weight should be placed upon the evidence of Dr Page with respect to the level of funding required and that her evidence on this point was that in excess of $100,000 was required.[102]
  2. [124]
    A salient point that arose out of the comments of Dr Page was that she said that the research component of the Baldivis project was in excess of $50,000.  In comparison with the applicant’s proposed project, the research for the Trinity Beach project has already been undertaken with much of that was undertaken on a voluntary basis.  If there was a cost associated, the tribunal was never told about it, and it can only be assumed that if there had been a cost, it was not an alarming or excessive amount; otherwise the respondent would have raised it to prove their point.
  3. [125]
    I am of the view that after undertaking an in-depth analysis of how that figure of $100,000 was arrived at; some doubt should be cast on the accuracy of the amount suggested in the evidence of Dr Page.  Although the onus of proof does not lie with any particular party in administrative review proceedings, that does not mean that the tribunal should accept all evidence without an obligation to rationally analyse the evidence, and a necessity for at least some form of confirmation as to what weight should be applied to that evidence.   
  4. [126]
    Bearing that point in mind, it is necessary to discuss the Briginshaw test and whether the evidence of $100,000 is actually a benchmark for the financial level of funding required for the applicant’s proposed project.
  5. [127]
    The Briginshaw test was derived from a detailed analysis about the development of the standards of proof in criminal and civil matters.  The case noted that the civil standard was depending on the reasonable satisfaction of the tribunal.  That analysis observed –   

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be inexact proofs, indefinite testimony, or indirect inferences.[103]

  1. [128]
    The Briginshaw test has been the discussion within many jurisdictions and plainly the authorities imply that notwithstanding that the standard of proof may not be the criminal standard of proof when a serious allegation is made, the consequences flowing from a particular finding are considerations which affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal.[104]
  2. [129]
    Therefore, what is the gravity of the consequences flowing from a particular finding that $100,000 is the actual benchmark for the applicant’s project.  This certainly affects whether the answers given about that amount have been proved to the reasonable satisfaction of the tribunal. 
  3. [130]
    In applying the Briginshaw test, I am not convinced that the evidence of Dr Page supported the estimation of $100,000 because of these reasons.  Firstly, there was no evidence placed before the tribunal by any party as to a budget or otherwise detailing the expected or actual costs of the translocation project that the applicant seeks to undertake.  Secondly, apart from what Dr Page said, there was no evidence presented as to the actual costs or budget associated with the Baldivis project including what costs related to the manpower, resources or other logistics utilised in that project; albeit except for what she believed was an amount of $50,000 provided to the research component.  The third point is the evidence of Dr Page.
  4. [131]
    Dr Page’s evidence on the issue of costs was introduced into the proceedings only during the hearing.  That is, nothing relating to the costs of the Baldivis project was disclosed to the applicant in her affidavit prior to the hearing.  This issue was only raised with Dr Page during her re-examination.  Notably, no other corroborating evidence was produced to support her hypothesis about the actual costs of the Baldivis project.  All of this went without objection or challenge by the applicant’s representative, for what I can only say was because of Ms Ager’s inexperience in advocacy.     
  5. [132]
    Dr Page arrived at a figure of ‘probably over $50,000’, but when a suggestion was placed into her mind by the respondent’s counsel that the amount could be double that figure, she seemingly without any basis or clarification readily accepted that new amount of $100,000, albeit an amount which, without any corroborating evidence to suggest otherwise, appeared to be a mere guess.
  6. [133]
    When asked about her knowledge of whether a financial contribution was made by the Western Australian Government, Dr Page said that she thought that the government probably resourced a portion of the project.
  7. [134]
    It was particularly noted that Dr Page did not definitively provide a cost of the applicant’s proposed project and I was troubled by her evidence about the costs involved in the Baldivis project, not with respect to her veracity, but more particularly with her recall of specific details relating to the costs she spoke of.  I was also troubled as to whether she had any actual first hand knowledge of the costs associated with the Baldivis project, and whether she was actively involved in costing the project; or whether she was just simply relaying in her evidence what she had heard.  In fairness to Dr Page, that never clarified with her by either party. 
  8. [135]
    Troubling also was Dr Page’s use of the words ‘I think’; ‘I believe. I don’t have exact figures’; ‘I can’t say definitively’; ‘there would have been – the developer would have paid the contractor’; ‘probably’ and, ‘I can’t say how much the contractor charged’.  This all suggests a degree of vagueness of the accuracy of the information. 
  9. [136]
    The true costs associated with Baldivis project was never made available at the hearing, and as I have already alluded to, nor was any costing, or an estimate thereof provided for the applicant’s proposed project at Trinity Beach.  The Baldivis project appears to have been undertaken over a relatively short period of time compared to the three years proposed by the applicant.  As I have already identified, it appears that the research component of the applicant’s project has been completed. 
  10. [137]
    Although it is unknown what resources were utilised, or the numbers of personnel that were involved in undertaking the Baldivis project, perhaps it would not be without some risk to attempt to compare the costs of both projects given that the applicant’s membership is voluntary and there will seemingly be no costs associated with engaging the volunteer membership to carry out the project. 
  11. [138]
    By way of conclusion on the cost issue of the applicant’s project, the respondent leveled some criticism towards the applicant for not providing a budget for their proposed project.  That criticism was not found to be helpful because notwithstanding that the respondent, being obliged to assist the tribunal to reach the correct and preferable decision in these proceedings, had not itself provided evidence of any anticipated or estimated costs of what the applicant proposes.
  12. [139]
    A further example of the respondent suggesting that the applicant is not appropriate or suitable arises from exhibiting into evidence photographs and video footage.  The photographs were lifted from the Facebook social media page belonging to the applicant.  Although taken by surprise that the photographs were exhibited, Ms Ager should not have been surprised of their existence because she is in those photographs.[105]  The respondent’s purpose for producing the photographs was to show an alleged history of non-compliance by the applicant.[106]   
  13. [140]
    One photograph illustrates Ms Ager with members of a media organisation; she is shown in the image holding a basket containing a wallaby.[107]  Another photograph shows Ms Ager with members of a local Cairns Girl Guides group.  Again, she is holding a wallaby.[108]  The third photograph depicts Ms Ager receiving what is suggested to be an Australia Day award.  With her in that photograph is an unknown male person who is holding a wallaby.[109]  I accept the proposition that Ms Ager, or some other person acting on behalf of the applicant displayed those photographs on social media.
  14. [141]
    The video footage[110] is contained within two separate videos.  The first video is titled ‘hard release’ and shows the release of a wallaby.  The second video is titled ‘rescues – shai’ and it shows various pieces of footage with Ms Ager and other members of the Agile Wallaby Project capturing wallabies.  One piece of the footage shows Ms Ager climbing down into a storm water drain to remove a wallaby that was obviously trapped in that drain.
  15. [142]
    During the hearing, the respondent spent some time suggesting to Ms Ager that she was not an appropriate person to be issued with a damage mitigation permit.  It was suggested that the applicant, through the activities of Ms Ager and other members of the organisation had actively engaged in contravening the Nature Conservation Act, in particular that they unlawfully captured the wallabies and thereby committed an offence pursuant to that Act.[111]    
  16. [143]
    Regarding the first video, Ms Ager said that the released wallaby had been found on the south side of Cairns.  It was reported to the applicant that the wallaby had some serious injuries.  The animal was taken to a vet, but no injuries were found although it did have some surface injuries that were treated with betadine.[112]  In regard to the footage shown in the second video, the nature of the questioning of Ms Ager was that the respondent was of the view that the animals seen being captured on the footage were healthy animals. 
  17. [144]
    The evidence of Ms Ager was that the animals captured were injured.  Examples given were the capture of an orphaned joey that had been starving for two days.  It was euthanised.[113]  Another example shows Ms Ager climbing down an enclosed urban roadside storm water drain and rescuing a trapped wallaby that was not able to escape out of that drain.  Ms Ager’s evidence was that the wallaby was rescued from the drain, not only because it was trapped, but also because it was injured and had an infection that required treatment by a vet.[114]  
  18. [145]
    Notwithstanding that an allegation was raised about possible offences committed by Ms Ager, the applicant, and others, it seems that the respondent has individually issued Ms Ager and the applicant with rehabilitation permits which allows the holding in care of animals which are injured.[115]  The purpose of a rehabilitation permit for animals is, amongst other things, to allow a person to care for and rehabilitate a sick, injured or orphaned protected animal.[116]
  19. [146]
    Clearly the object or the aim of the respondent’s questioning of Ms Ager about the evidence contained within exhibits 5, 6, 7 and 8 was to show that neither Ms Ager or the applicant were suitable to be issued with a damage mitigation permit because they had allegedly contravened the relevant provisions of the Nature Conservation Act.
  20. [147]
    Although it is the role of the tribunal in these proceedings to gauge the suitability of the applicant to be issued with a damage mitigation permit, it is not the tribunal’s role to assess the culpability of Ms Ager or any other person with regard any alleged offence.  That would be the role of another jurisdiction.  On the other hand, notwithstanding the observations just made, my view is that the evidence contained within the aforementioned exhibits does not provide any definitive evidence that there is a likelihood of non-compliance with a permit, it only enhances or bolsters the applicant’s argument that it is suitable to be issued with a damage mitigation permit.   
  21. [148]
    In the joint expert report compiled and authored by Dr Lundie-Jenkins and Dr Cohen,[117] Dr Lundie-Jenkins observed that Ms Ager and Dr Fargher have no relevant documented experience or specific training in relation to the capture, immobilisation, transportation, release and monitoring of healthy agile wallabies.
  22. [149]
    In regard to undertaking the translocation, Dr Lundie-Jenkins indicated that given the scale of the proposed translocation involving the capture, transportation and release of up to 400 agile wallabies, those people involved in the translocation process should have extensive, contemporary knowledge and experience of the biology and behaviour of wild medium-size macropods such as agile wallabies.[118]
  1. [150]
    He went onto say that it was clear that the scale of the project proposed by the applicant was larger than probably any type of translocation that has been attempted, particularly for a least concern animal in Queensland.  The individual elements of the applicant’s proposal were comparable to other programs that have been undertaken, particularly in relation to eastern grey kangaroos, which were approved translocations by suitably qualified people.[119]  When asked who the people were, he said –

……people within the agency, within our department have conducted a number of these operations, and some of those operations have been conducted in conjunction with universities so both academic staff supervising students, and students in those universities have some experience in those operations. There’s also a number of now private companies who do fauna management type things that have appropriate skills and training…..[120]

  1. [151]
    When asked if the respondent conducted courses or training exercises for private individuals or organisations, his reply was “We haven’t to date, no”.[121]
  1. [152]
    In regard to the ability of the applicant to adopt the guidelines associated with the SOPs for translocations, Dr Lundie-Jenkins was certain that knowledge, training, and experience can significantly reduce the likelihood of adverse outcomes. The SOPs all referenced a need for the personnel involved in a translocation process to satisfy a high level of competency standards.  Notwithstanding the conclusion which he had reached, he went on to opine that with respect to the proposed protocol submitted by the applicant, the applicant did satisfy relevant codes of practice and the SOPs in relation to the capture, processing, transport and release of agile wallabies.[122]
  2. [153]
    Dr Cohen’s said the procedures and policies for the translocation of macropods in Queensland are relatively new and it was difficult to locate anyone with a high level of experience in this area.  Because of that issue, adherence to the specific competencies listed in each of the SOPs was impossible as there was no way to gain experience if those projects are never actually undertaken.  There was not a large pool of people with this specific expertise available and he said that it would be comparable to asking for people go to Mars, but only people who have been there can apply. 
  3. [154]
    Dr Cohen thought the current ability of the applicant’s membership would allow it to successfully undertake the translocation task, although he would be much happier if the applicant had some further expertise on board.  He explained that he would be encouraging the applicant to recruit more expertise into the project[123] and his preference is the company called Biosphere Environmental Consultants.  This company purports to be an expert in environmental management, ecology and wildlife health.  The two principals of the company have over 32 years of experience between them in that field.[124]  It seems that Dr Cohen and the company are acquainted and it was he who recommended the company to the applicant.[125]
  4. [155]
    The evidence of Dr Cohen is accepted in regard to this issue, and in my view, the result of the applicant engaging with Biosphere Environmental Consultants could only lead to greater experience and enhanced practices relevant to the translocation of the agile wallabies.
  5. [156]
    One further point that Dr Cohen did make was that the proposal to translocate 400 agile wallabies would not be done all at once and that quite smaller numbers would be involved in any single translocation. He stressed that the applicant’s amended application did appear to adequately address all the concerns about preparation and training.  He went on to say that effective management of the agile wallaby population was urgently required and demanded by the local community.  It was his opinion that the current ‘do nothing’ option was not working and that if the respondent was concerned about the appropriateness of the applicant to undertake the translocation, then the respondent should get involved by supervising and/or overseeing the project.[126]  Perhaps that suggestion has merit.
  6. [157]
    Turning now to a discussion of the term suitable person.  The term is not particularly defined in any of the legislation relevant to these proceedings.[127]  Although there is reference made in the Administration Regulations to a suitable person, there is no definitive description of what characterises that term, or what adequately describes a criteria for that assessment.  It seems that the only guidance is that there is a broad discretion conferred upon the tribunal when deciding whether a person is suitable to hold a damage mitigation permit.  In undertaking that assessment, the tribunal may have regard to any matter relevant to the person’s ability to carry out the activities in a competent and ethical manner.    
  7. [158]
    Suitable means right or appropriate for a particular purpose or occasion.  It also means proper and fit.  The term could also apply to someone who is appropriately qualified.  Appropriately qualified in regard to a function or power means having qualifications, experience or standing appropriate to perform the function or exercise and necessary power.[128]  The term competent, when read with the term ethical, describes the characteristics of a person who possesses skill, knowledge, is capable and is able to be proficient in applying their duties in a moral, proper and principled manner. 
  8. [159]
    It seems a wide range of descriptions can be given to the term suitable person, which is comparable to other descriptions provided for in various other legislation.  Examples of those descriptions can be found in the terms ‘fit and proper’ and ‘appropriate person’.
  1. [160]
    The term fit and proper is a well known phrase that has been considered on numerous occasions in this jurisdiction, along with the various other jurisdictions in Queensland and other parts of the Commonwealth. A well referenced comment relating to a fit and proper person arises out of the High Court’s decision in the ‘Bond Media Case’. On that occasion, the High Court commented that:

The question whether a person is fit and proper is one of value judgment.  In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker.  So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[129]

The High Court went on to say:

The expression ‘fit and proper person’ standing alone, carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.  The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.[130]

  1. [161]
    The issues relating to whether a person is fit and proper to undertake a role or perform a particular function was discussed in the New South Wales Civil and Administrative Tribunal in the matter of CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190The comments made by the tribunal in that matter with respect to the term ‘fit and proper’ and its relationship to a company are in my view a relevant principle that should be applied to the applicant.  In that matter, Senior Member Anderson helpfully outlined that the question as to whether a company is a fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company.[131]  
  2. [162]
    If the principles arrived at in the Bond Media Case and CYD v Secretary of the Department of Education NSW are to be adopted and applied in regard to the applicant, then I am of the view that the assessment of the applicant is that it does possesses the character, reputation and moral integrity necessary to be issued with a damage mitigation permit. 
  3. [163]
    In conclusion, notwithstanding that an argument has been raised by the respondent that the applicant is not appropriate to be issued with a damage mitigation permit for those reasons already outlined, I am satisfied that the overall probative value of the evidence in this matter leads to a favourable finding for the applicant.  The characteristics of the applicant, including Ms Ager and those other professionals that aid and assist the applicant, enhance or bolster the proposition that the applicant possesses the necessary skill and knowledge.
  4. [164]
    I am equally satisfied that the applicant possesses the fitness and propriety to carry out their responsibility under the terms of a damage mitigation permit in an ethical, proper and principled manner, and as such, the respondent should have confidence that the applicant can undertake the activities associated with the translocation of the wallabies from Trinity Beach.

Conclusion

  1. [165]
    As indicted earlier in these reasons, this application is a matter that has been the forefront of a great deal of public interest.  Having regard to the evidence, I am satisfied that if a damage mitigation permit is not issued for the translocation of the wallabies out of Trinity Beach, there is a likelihood or a potential risk to the health, safety and wellbeing to the human population of that area. 
  2. [166]
    A great deal of consideration was given to whether the applicant fulfilled the criteria of being an appropriate person to be issued with a damage mitigation permit.  The evidence does not support any hypothesis that it is not suitable, and indeed I am satisfied that the applicant is suitable.  I am also satisfied that the applicant will undertake the trapping and translocation process in an appropriate manner and the proposed way in which the applicant will trap and transport the wallabies is humane and is not likely to cause unnecessary suffering to the wallabies.
  3. [167]
    Therefore, I am satisfied that the correct and preferable decision of the tribunal in this matter is find that the decision of the Department of Environment and Science dated 15 June 2018 to refuse to issue the applicant with a damage mitigation permit is set aside and substituted with the tribunal’s decision that pursuant to section 32 and Schedule 2 of the Administration Regulations the applicant is a suitable person within the meaning of that subordinate legislation to be issued with a damage mitigation permit.  
  4. [168]
    Earlier in these reasons, reference was made to the respondent’s suggestion that if the tribunal was satisfied that the correct and preferable decision was to issue a permit, it may issue that permit with or without conditions.  I am not convinced that the tribunal, when reaching a correct and preferable decision in an administrative review for a matter such as this can actually undertake the exercise of issuing a damage mitigation permit. 
  5. [169]
    Similar doubt as to the tribunal’s ultimate authority in administrative review proceedings was earlier considered in the tribunal by Carmody J in RPG v Public Safety Business Agency [2016] QCAT 331 (‘RPG No. 2’) (my emphasis).  That matter was determined because of an earlier decision of the tribunal in RPG v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 485 (‘RPG No. 1’) (my emphasis).  In RPG No. 1, the tribunal set aside the decision of a decision maker to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) and ordered the decision maker to issue the applicant with a positive notice and a blue card.  It was the decision maker’s view that the tribunal fell into error by making that order.  Carmody J agreed and said that the tribunal in RPG No. 1 had power to set aside the original decision, but there was no power to order the decision maker to issue a positive notice or a blue card. 
  6. [170]
    To expand upon those observations of Carmody J, with respect to the relationship between the QCAT Act and the enabling Act, the enabling Act is the legislation conferring review jurisdiction on the tribunal and it may state the tribunal’s functions.  The enabling Act may also add to, otherwise vary, or exclude functions stated in the QCAT Act.[132]  The enabling Act can also be subordinate legislation that confers review jurisdictions on the tribunal[133] and may include provisions about the conduct of the proceedings including practices and procedures, and the tribunal’s powers.[134] 
  7. [171]
    In this matter, the enabling Act is the subordinate legislation commonly referred throughout these reasons as the Administration Regulations.  The drafting of Part 4 of the Administration Regulations outlines the provisions for internal and external reviews.  It includes the provision that a person who is given, or is entitled to be given, a notice[135] about a decision may apply to the tribunal for an external review of the decision.[136]  The Administration Regulations does not provide the tribunal with any power or functions.
  8. [172]
    The tribunal has a distinct and particular role to play in administrative reviews and it is the QCAT Act that provides the authority for the tribunal to make the correct and preferable decision.  Although the QCAT Act provides that the tribunal has all the functions of the original decision maker,[137] the only authority provided to the tribunal by the Administration Regulations and the QCAT Act is that discretion can be exercised to do one of a number of things.  That is, the tribunal may either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute that decision with its own decision; or set aside the respondent’s original decision and return the matter for consideration to the original decision maker with directions that the tribunal considers appropriate.[138]
  9. [173]
    The decision ultimately reached by the tribunal in setting aside the respondent’s decision and substituting that decision with its own decision is binding on all parties in these proceedings,[139] and the decision, taken to be the decision of the respondent, takes effect when the tribunal makes its decision, unless a later date is specified.[140] 
  10. [174]
    Therefore, it is my view, in administrative review proceedings, unless the enabling Act or the enabling subordinate legislation confers a particular power or function upon the tribunal with respect to the issuing of a permit, authority, notice or otherwise, the tribunal’s determination in making the correct and preferable decision is restricted to its functions for the review.[141]  It would then be up to the original decision maker, or the respondent’s chief executive officer to issue the damage mitigation permit within a reasonable time, in line with the legislation.[142] 
  11. [175]
    Having been satisfied that the applicant is a suitable person to be issued with a damage mitigation permit, I am of the view that the respondent should be kept appraised of the occurrences of the applicant whilst it engages in the translocation project.  It has already been determined that the tribunal is restricted as to what orders or directions it can make in administrative reviews, however notwithstanding that restriction, it is my recommendation that when a damage mitigation permit is issued to the applicant that it should be conditional. 
  12. [176]
    However, any conditions imposed should not be overbearing and too arduous so that the applicant cannot undertake its project in an effective, timely and meaningful way.  Therefore, my recommendations are that consideration should be given, but not limited to, the following conditions –    
  1. (a)
    The taking of the agile wallabies shall be from the areas known as the Trinity Beach sporting precinct, Moore’s Gully, the suburb of Trinity Beach and the housing development site known as Bluewater Estate;
  2. (b)
    The method of capture or trapping of the agile wallabies will be by the use of the method known as Thomas Traps, or such other methods as approved by the respondent;
  3. (c)
    Any captured or trapped agile wallaby will be released onto either of the release sites of Bessie Point or Hartley’s Creek, or at some other suitable location as agreed in writing between the parties within a reasonable time, with the reasonable time not being any longer than twelve hours after capture;
  4. (d)
    Prior to the release of any captured or trapped agile wallaby onto the release sites, each animal is to be examined by a suitably qualified person or a qualified veterinarian for any injury or disease;
  5. (e)
    Establish a suitably sized staging area where the expatriated wallabies will be housed for at least 24 hours in a cordoned off area prior to release;
  6. (f)
    Ensure that there is a representative ratio of sexes released into each release site;
  7. (g)
    Any captured or trapped agile wallaby which is injured or diseased, will be treated by a suitably qualified veterinarian, and that animal or those animals will not be released onto the release sites until that animal or those animals have sufficiently recovered from their injury to allow them to survive in that release site habitat; and 
  8. (h)
    The applicant to maintain a register and accurately record and report to the respondent every three (3) months details of all captured or trapped agile wallabies, including injured wallabies, outlining –
  1. (i)
    the time and date of capture or trapping;
  2. (ii)
    whether the captured or trapped wallaby was healthy, injured, or diseased;
  3. (iii)
    any medical treatment provided to any injured or diseased wallaby;
  4. (iv)
    the sex and approximate age (joey, juvenile or adult);
  5. (v)
    the time, date, and location for the release of the wallaby; and 
  6. (vi)
    a survey of the wallaby populations at both the sporting precinct site and the Bluewater housing estate.

Footnotes

[1]  Responsibilities as listed on the respondent’s website – www.des.qld.gov.au.

[2] Nature Conservation (Administration) Regulation 2017 (Qld), s 119.

[3]  A corporation is a legal entity created by charter, prescription or legislation.

[4] Acts Interpretation Act 1954 (Qld), s 32D.

[5]  Chronology details lifted from the respondent’s Statement of Reasons filed 20/09/2018 at page 2 and Exhibit 1, pages 108 – 109.

[6]  The original decision.

[7]  The reviewable decision.

[8]  Exhibit 16.  Management Strategy for Kenfrost development, Johanna Road, Trinity Beach, Cairns undertaken by Biotropica Australia Pty Ltd., authored by Lars Kazmeier and Nigel Tucker, at page 2.

[9]  Exhibits 9, 11, 12 and 14.

[10]  Exhibit 3.  Affidavit of Brett Olds, Councillor for Division 9, Cairns Regional Council affirmed on 5 November 2018. 

[11]  Transcript of Proceedings, page 1-31.

[12]  Transcript of Proceedings, pages 1-30 to 1-31.

[13]  Transcript of Proceedings, pages 1-29 to 1-30.

[14]  Exhibit 1 at page 1.  Applicant’s amended application for a damage mitigation permit.

[15] Nature Conservation (Administration) Regulation 2017 (Qld), s 26(1).

[16] Nature Conservation (Administration) Regulation 2017 (Qld), s 26(1)(a).

[17] Nature Conservation (Administration) Regulation 2017 (Qld), s 26(1)(c).

[18] Nature Conservation Act 1992 (Qld), s 8.

[19]  Respondent’s submissions at page 12, paragraph 33.

[20] Nature Conservation Act 1992 (Qld), s 4.  Object of the Act.

[21] Nature Conservation Act 1992 (Qld), s 8(2)(b).

[22] Nature Conservation Act 1992 (Qld), s 9.

[23] Nature Conservation Act 1992 (Qld), s 11(a).

[24] Nature Conservation Act 1992 (Qld), Schedule – Dictionary.

[25] Nature Conservation Act 1992 (Qld), Schedule – Dictionary; Nature Conservation (Wildlife) Regulation 2006 (Qld), Schedule 6.

[26] Nature Conservation Act 1992 (Qld), s 71(a)(v) and Schedule – Dictionary.

[27] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 181(1).

[28] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 181(2).

[29] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 181(3).

[30] Nature Conservation (Administration) Regulation 2017 (Qld), s 21(1).

[31] Nature Conservation (Administration) Regulation 2017 (Qld), Schedule 2.2.

[32] Nature Conservation (Administration) Regulation 2017 (Qld), s 26(2); Nature Conservation Act 1992 (Qld), ss 4 and 5 provides for the object of the Nature Conservation Act and how that object is to be achieved.

[33] Nature Conservation (Wildlife) Regulation 2006 (Qld), Schedule 6.

[34] Nature Conservation (Wildlife) Regulation 2006 (Qld), s 35(2).

[35] Nature Conservation Act 1992 (Qld), Schedule – Dictionary provides that protected wildlife means and includes agile wallabies who are a least concern species.

[36] Nature Conservation Act 1992 (Qld), s 73.

[37]  Original decision made on 11 May 2018.

[38]  Pursuant to the Nature Conservation (Administration) Regulation 2017 (Qld), s 117.

[39]  An external review pursuant to the Nature Conservation (Administration) Regulation 2017 (Qld), s 119.

[40] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[41] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19 and 20(2).

[42] Water Conservation & Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492, 496 per Latham CJ.

[43] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

[44] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Brennan J; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[45] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21.

[46] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28.

[47] The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, 256 per Evatt J.

[48] Kioa v West (1985) 159 CLR 550 at 583-584 per Mason J citing Wiseman v Borneman (1971) AC 297; Bushell v Secretary of State for the Environment (1981) AC 75; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd  (1924) 1 KB 171; Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1978) 88 DLR (3d) 671.

[49] McDonald v Director-General of Social Security (1984) 1 FCR 354, 356.

[50] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b) & (c).

[51] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 per Brennan J.

[52]  Western Australia SOP for Soft Trapping of Macropods (v1.2) identified in Exhibit 1 at pages 366 – 380.

[53]  Western Australia SOP for Animal Handling and Restraint Using Soft Containment (v1.1) identified in Exhibit 1 at pages 395 – 406.

[54]  Queensland Code of Practice for the care of sick, injured, or orphaned animals identified in Exhibit 1 at pages 141 – 169.

[55]  Exhibit 1 at pages 86 – 97, Access Permit.

[56]  Applicant’s amended application for a damage mitigation permit, Exhibit 1, at pages 2 and 4.

[57]  He has a Bachelor of Natural Resources, a Masters in Resource Science and a PhD in Ecology.

[58]  Exhibit 1, Document 35, pages 442 – 443.

[59] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 186(d) does not apply as this part of the provisions relate to relate to a protected reptile.

[60] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 186(a).

[61] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 186(b).

[62]  Jointly authored by Dr Lundie-Jenkins and Dr Cohen.

[63]  Transcript of Proceedings at page 2-72, lines 5 – 10.

[64]  Transcript of Proceedings at page 2-77, lines 40 – 47 and page 2-78, lines 1 – 26. 

[65]  Transcript of Proceedings at page 2-78, lines 32 – 40.

[66]  Transcript of Proceedings at page 2-81, lines 40 – 44.

[67]  Transcript of Proceedings at page 2-81, lines 25 – 32.

[68]  Exhibit 1 at pages 43 – 68, Vegetation assessment report undertaken by Johan Hurter, Principal Botanist of RPS Australia East Pty Ltd, 135 Abbott Street, Cairns, Qld.

[69]  Received by Mr Warren Entsch MP on 12 July 2019.

[70]  Exhibit 1, Document 20 at page 99 and Exhibit 2.

[71]  This research was undertaken by Simon C Stirrat and published in 2003.

[72]  Exhibit 1, Document 35 at page 435.

[73]  Exhibit 1, Documents 13, 14 and 15 at pages 69 – 81:  Agile Wallaby Carrying Capacity Report, dated 21 December 2018.

[74]  Exhibit 1, Documents 16 and 17, pages 82 – 85 (document entered twice into Exhibit 1).

[75]  Transcript of Proceedings at page 2-93, lines 20 – 22.

[76]  Exhibit 1, Document 26, Review Report undertaken by Dr Lundie-Jenkins, page 110.

[77]  Transcript of Proceedings at page 2-94, lines 22 – 29.

[78]  Transcript of Proceedings at page 2-95, lines 42 – 47 and page 2-96, lines 1 – 4.

[79]  Transcript of Proceedings at page 2-95, lines 13 – 15.

[80]  Transcript of Proceedings at page 2-95, lines 18 – 20.

[81]  Transcript of Proceedings at page 2-95, lines 18 – 20

[82]  Transcript of Proceedings at page 2-98, lines 4 – 13.

[83]  Transcript of Proceedings at page 1-31, lines 9 – 24.

[84]  Transcript of Proceedings at page 1-57, lines 17 – 22.

[85] Nature Conservation (Administration) Regulation 2017 (Qld), s 26(1)(g).

[86] Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473, 487 per Jacobs J.

[87] Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473, 485 per Stephen J.

[88]  (1989) 168 CLR 210, 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

[89]  (1975) 132 CLR 473, 480 per Barwick CJ.  This matter was on appeal to the High Court from a decision of the Queensland Court of Appeal (Full Court):  R v Mining Warden at Maryborough; Ex parte Sinclair [1975] Qd R 235.

[90]  [1991] 1 VR 63, citing Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473, 480 per Barwick CJ.

[91]  [1991] 1 VR 63, citing Ellis v Home Office [1953] 2 All ER 149 per Morris LJ.

[92] Director of Public Prosecutions v Smith [1991] 1 VR 63, 75 per Kay, Fullagar and Ormiston JJ, citing Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473, 480 per Barwick CJ.

[93] Nature Conservation (Administration) Regulation 2017 (Qld), Schedule 2.2.

[94]  Transcript of Proceedings at page 2-22, line 38.

[95]  Transcript of Proceedings at page 2-54, lines 30 – 35.

[96] Nature Conservation (Administration) Regulation 2017 (Qld), Schedule 2, s 5.

[97]  Exhibit 1, Document 37 at pages 470 – 472.

[98]  Exhibit 1, Document 37 at page 471, paragraph 15.

[99]  Transcript of Proceedings at page 2-46, lines 42 – 45; and page 2-47, lines 1 – 31.

[100]  Transcript of Proceedings at page 2-48, lines 3 – 17.

[101]  Transcript of Proceedings at page 2-48, lines 45 – 47; and page 2-49, lines 1 – 15.

[102]  Respondent’s submissions at paragraph 107.

[103] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J.

[104] EBH v DH [2001] QDC 016, [28]; GKE v EUT [2014] QDC 248, [36] both citing Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[105]  Transcript of Proceedings at page 2-11.

[106]  Transcript of Proceedings at page 2-12, lines 6 – 11.

[107]  Exhibit 5.

[108]  Exhibit 6.

[109]  Exhibit 7.

[110]  Exhibit 8.

[111]  Transcript of Proceedings at pages 2-19 to 2-30.

[112]  Transcript of Proceedings at page 2-19, lines 36 – 47 and page 2-20 at lines 1 – 2.

[113]  Transcript of Proceedings at page 2-25, lines 33 – 39.

[114]  Transcript of Proceedings at page 2-29.

[115]  The rehabilitation permit was issued to Ms Ager on 29/01/2019 and expires on 28/01/2022.  The rehabilitation permit was issued to the applicant on 05/02/2019 and expires on 04/02/2022.

[116] Nature Conservation (Wildlife Management) Regulation 2006 (Qld), s 207.

[117]  Exhibit 1, Documents 35 and 36 at pages 432 – 469.

[118]  Exhibit 1, Document 35 at page 445.

[119]  Transcript of Proceedings at page 2-87, lines 44 – 47 to page 2-88, lines 1 – 14; and page 2-122, lines 29 – 46 and page 2-123, lines 1 – 2.

[120]  Transcript of Proceedings at page 2-122, lines 29 – 38.

[121]  Transcript of Proceedings at page 2-122, lines 41 – 42.

[122]  Exhibit 1, Document 35 at page 443.

[123]  Exhibit 1, Document 35 at pages 441 – 442.

[124]  Exhibit 15.  The principals of that organisation are Damien Morrant and Sarah Gill.

[125]  Transcript of Proceedings at page 3-25, lines 12 – 17.

[126]  Exhibit 1, Document 35 at page 446.

[127] Nature Conservation Act 1992 (Qld); Nature Conservation (Administration) Regulation 2017 (Qld); Nature Conservation (Wildlife Management) Regulation 2006 (Qld); Nature Conservation (Wildlife) Regulation 2006 (Qld); and Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[128] Acts Interpretation Act 1954 (Qld), Schedule 1.

[129] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380 per Toohey and Gaudron JJ.

[130] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 388 per Toohey and Gaudron JJ.

[131] CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190, [89].

[132] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(4).

[133] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(2); Nature Conservation (Administration) Regulation 2017 (Qld), s 119.

[134] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(7).

[135] Nature Conservation (Administration) Regulation 2017 (Qld), s 117(3).

[136] Nature Conservation (Administration) Regulation 2017 (Qld), s 119.

[137] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).

[138] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[139] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 126(1).

[140] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 127.

[141] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[142] RPG v Public Safety Business Agency [2016] QCAT 331, [29].

Close

Editorial Notes

  • Published Case Name:

    The Agile Wallaby Project Inc v Department of Environment and Science

  • Shortened Case Name:

    The Agile Wallaby Project Inc v Department of Environment and Science

  • MNC:

    [2020] QCAT 121

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    01 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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