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McMahon v Department of Agriculture and Fisheries[2025] QCAT 15

McMahon v Department of Agriculture and Fisheries[2025] QCAT 15

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McMahon v Department of Agriculture and Fisheries [2025] QCAT 15

PARTIES:

leichelle McMahon

(applicant)

v

Department of Agriculture and Fisheries

(respondent)

APPLICATION NO/S:

GAR001-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 January 2025

HEARING DATE:

3 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The decision made by the Respondent on 7 December 2022 to refuse the application by the Applicant for an exhibition licence is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General administrative review – review of internal decision made by the respondent to refuse an application by the Applicant for an exhibition licence under the Exhibited Animals Act 2015 (Qld)  – where applicant sought licence to exhibit a juvenile freshwater crocodile at pet store – where departmental policy that applications that relate to facilities primarily used for commercial purpose where animals are intended to be exhibited to promote the primary business, including pet shops, will not be approved – whether policy consistent with the Act – whether applicant a suitable person to hold an exhibition licence – whether management plan submitted by the applicant should be approved

Human Rights Act 2019 (Qld), s 10, s 13

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 20, s 24, s 157

Exhibited Animals Act 2015 (Qld), s 3, s 4, s 13, s 17, s 26, s 34, s 37, s 40, s 43, s 50, s 51, s 53, s 57, s 58, s 77, s 241, s 246, s 248, Schedule 2

CTA v Queensland Police Service [2018] QCAT 440

Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34

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

Minister Home Affairs v G (2019) 266 FCR 569

NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr H. Isles, In-house legal

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application to review a decision filed on 23 December 2022 (‘the Application’), the Applicant has applied to review an internal decision of the Respondent made on 7 December 2022 (‘the Decision’). By the Decision, the Respondent refused an application by the Applicant for an exhibition licence pursuant to s 50 of the Exhibited Animals Act 2015 (Qld) (‘the EAA’). The application for an exhibition licence was dated 9 August 2022 but received by the Respondent on 20 October 2022.
  2. [2]
    The Applicant wishes to exhibit a juvenile freshwater crocodile (Crocodylus johnsoni) at business premises in Brisbane operated as a pet store. A freshwater crocodile is a Category B native animal pursuant to s 34 of the EAA.
  3. [3]
    The Applicant seeks to ‘overturn’ the Decision and that an exhibitor licence be approved for the Applicant.

Jurisdiction to review the Decision

  1. [4]
    I consider that the Applicant is entitled to an external review of the Decision by the Tribunal.
  2. [5]
    Section 248 of the EAA provides:

A person given, or entitled to be given, a QCAT notice under section 246(2) or (5)(b) for an internal review decision may apply, as provided under the QCAT Act, to QCAT for an external review of the decision.

Note—

The QCAT Act, section 22(3) provides that QCAT may stay the operation of a reviewable decision under that Act, either on application by a person or on its own initiative.

  1. [6]
    The Applicant applied for an internal review of the decision prior to applying to the Tribunal (as required by s 241 of the EAA).
  2. [7]
    I find that the Applicant was given a QCAT notice under s 246(2) of the EAA.[1]
  3. [8]
    The Tribunal has jurisdiction to review the Decision by virtue of s 248 of the EAA and s 9(1), s 9(2)(b) and s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
  4. [9]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[2] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[3] The Tribunal must have access to any information that could have been or was considered by the original decision‑maker, plus any other material that becomes available and may be lawfully considered.[4]
  5. [10]
    The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made and there is no presumption that the original decision is correct.[5]

The relevant provisions of the EAA

  1. [11]
    Section 13 of the EAA provides:
  1. Generally, exhibit an animal means display the animal to the public, including, for example, for commercial, cultural, educational, entertainment or scientific purposes.

Examples of exhibiting an animal—

•  displaying an animal in a zoo or wildlife park

•  using an animal in a performance in a circus or magic show

•  allowing public interaction with animals at a petting farm

•  showing an animal as part of an educational wildlife demonstration

•  displaying an animal, including, for example, a bird in a cage, in a part of commercial premises accessible to the public

Note—

Section 10 states when the Act does not apply to exhibiting or dealing with an animal.

  1. Exhibit, an animal, includes the following—
  1. display the animal at a private event;
  1. arrange for the animal to be at a public place for a period that allows the public a reasonable opportunity to view the animal, whether or not the animal is so viewed;
  1. allow public interaction involving the animal.

…

(emphasis added)

  1. [12]
    Section 17 of the EAA provides:
  1. Each of the following is a relevant risk associated with exhibiting or dealing with an exhibited animal—
  1. a risk to the welfare of any animal;
  1. a biosecurity risk
  1. a risk to public safety, or of death, injury or illness to a person, caused directly by, or originating from, the exhibited animal.
  1. The relevant adverse effects, associated with exhibiting or dealing with an exhibited animal, are the adverse effects of an event caused by exhibiting or dealing with the animal on each of the following—
  1. the welfare of any animal;
  1. the health, safety or wellbeing of a person;
  1. social amenity, the economy and the environment.

Examples of an event—

the escape or release of an exhibited animal

  1. [13]
    Section 40 of the EAA provides that an exhibition licence authorises the holder to exhibit and keep an authorised animal in the way stated in the licence.
  2. [14]
    An exhibition licence authorises the holder to move an authorised animal in any of the ways specified in s 43.
  3. [15]
    Subsection 50(1) of the EAA provides person may apply to the Chief Executive for the grant of an exhibition licence.
  4. [16]
    ‘Person’ is not defined in the EAA.
  5. [17]
    However, s 32D of the Acts Interpretation Act 1954 (Qld) provides, relevantly:
  1. In an Act, a reference to a person generally includes a reference to a corporation as well as an individual.
  1. Subsection (1) is not displaced merely because there is an express reference to either an individual or a corporation elsewhere in the Act.

…

  1. [18]
    The requirements for an application under s 50 are set out in s 51 of the EAA:
  1. The application must—
  1. (a)
    be in the approved form; and
  1. (b)
    be accompanied by—
  1. (i)
    a management plan for exhibiting and dealing with each particular animal or the animals of each species that are to be authorised animals under the exhibited animal authority applied for; and
  1. (ii)
    the fee prescribed by regulation.
  1. However, the chief executive may waive payment of the fee if satisfied—
  1. (a)
    the application relates to exhibiting an animal that is prohibited or restricted matter; and
  1. (b)
    the proposed exhibition of the animal is aimed at controlling or eradicating animals of that species; and
  1. (c)
    the applicant will not derive any financial benefit from exhibiting or dealing with the animal under the authority; and
  1. (d)
    the applicant undertakes in writing to advise the chief executive of the progress and outcomes of exhibiting and dealing with the animal.
  1. [19]
    Before deciding the application, the Chief Executive may make inquiries about the suitability of an applicant to hold the exhibited animal authority applied for.[6]
  2. [20]
    Subsection 53(4) provides:

In deciding whether the applicant is a suitable person to hold an exhibited animal authority, the chief executive may have regard to the following—

  1. whether the applicant, or an associate of the applicant, has been refused an exhibited animal authority or similar authority;
  1. whether the applicant, or an associate of the applicant, held an exhibited animal authority or similar authority and it was suspended or cancelled;
  1. whether the applicant, or an associate of the applicant, has a conviction for a relevant offence, other than a spent conviction;
  1. any other matter the chief executive considers relevant to the applicant’s ability to exhibit or deal with an animal under the authority applied for, including the applicant’s capacity to comply with conditions of the authority.

(emphasis added)

  1. [21]
    The term ‘conviction’ includes a finding of guilt, whether or not a conviction is recorded.[7]
  2. [22]
    A ‘relevant offence’ is defined to mean:
  1. an offence against —
  1. [the EAA]; or
  1. a relevant repealed provision; or
  1. a law that is a corresponding law to a provision of [the EAA]; or
  1. an offence involving an animal against any of the following Acts —
  1. the Animal Care and Protection Act 2001;
  1. the Biosecurity Act 2014;
  1. the Nature Conservation Act 1992.

(emphasis added)

  1. [23]
    The term ‘associate’ is defined in Schedule 2 to the EAA as follows:

associate, of a person, means—

  1. if the person is an individual—
  1. the individual’s spouse or de facto partner; or
  1. a relative of the individual, whether by blood, spousal relationship or adoption; or
  1. an employee of the individual; or
  1. an employee of a corporation of which the individual is an executive officer; or
  1. a partner of the individual; or
  1. a corporation of which the individual is an executive officer; or
  1. a corporation in which the individual holds a controlling interest; or
  1. a person who is a trustee of a trust of which the individual is a trustee or beneficiary; or
  1. a person who is a beneficiary of a trust of which the individual is a trustee or beneficiary; or
  1. a person who is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the individual; or
  1. a person who is an associate of someone who is an associate of the individual; or
  1. if the person is a corporation—
  1. an executive officer of the corporation; or
  1. an associate of an executive officer of the corporation; or
  1. an employee of the corporation; or
  1. a person who holds a controlling interest in the corporation; or
  1. a related body corporate, within the meaning of the Corporations Act, of the corporation; or
  1. a person who is an associate of someone who is an associate of the corporation; or
  1. if the person is an incorporated association—a member of the association’s management committee.
  1. [24]
    Section 57 of the EAA provides:
  1. The chief executive must consider the application and decide to—
  1. grant the application; or
  1. grant the application on conditions; or
  1. refuse to grant the application.
  1. Section 77(2) applies to conditions imposed under subsection (1)(b).
  1. [25]
    The general criteria for the decision are set out in s 58 of the EAA which provides:
  1. The chief executive may grant the application, with or without conditions, only if—
  1. for an applicant who is an individual, the applicant is an adult; and
  1. the chief executive—
  1. (i)
    is satisfied the applicant is a suitable person to hold the exhibited animal authority applied for; and
  1. (ii)
    approves a management plan for exhibiting and dealing with each particular animal or the animals of each species that are to be authorised under the authority (the proposed authorised animals); and
  1. for an application in relation to an activity that is categorised as assessable development under the Planning Act 2016—a development approval has been given under that Act for the development; and
  1. for an application in relation to an activity that is PDA-related development and is PDA assessable development under the Economic Development Act 2012—a PDA development approval has been given under that Act for the development..
  1. For subsection (1)(b)(ii), the chief executive may approve a management plan only if satisfied the proposed authorised animals will be exhibited and dealt with under the management plan in a way that prevents or minimises the relevant risks and relevant adverse effects associated with exhibiting or dealing with the animals.
  1. In this section— PDA-related development means—
  1. development in a priority development area under the Economic Development Act 2012; or
  1. PDA-associated development for a priority development area under the Economic Development Act 2012.

(emphasis added)

  1. [26]
    In addition to the mandatory conditions, an exhibited animal authority is subject to the conditions for the authority decided by the chief executive and stated in the authority (known as ‘special conditions’).[8]

The Respondent’s case

  1. [27]
    The Respondent points to the following matters which, it submits, support the Decision:
    1. that the fundamental purpose of an application under the EAA to deal with and exhibit native wildlife at a licensed premises must be primarily for educating members of the public about all animals exhibited; and exhibition licences are not granted in circumstances where the proposal to exhibit native wildlife is to support or promote commercial business such as pet shops (and doing so would result in the loss of industry integrity) (I shall refer to this as ‘the Policy issue’);[9]
    2. that the Applicant was not a suitable person (which I shall refer to as ‘the Suitability issue’) because:
      1. (i)
        on 30 July 2021, Ms McMahon was found guilty of four offences under the Animal Care and Protection Act 2001 (Qld);[10]
      1. (ii)
        on 30 July 2021, Ms McMahon’s partner, and an ‘associate’ as defined in the EAA, was found guilty of one offence under the Animal Care and Protection Act 2001 (Qld);[11]
      1. (iii)
        in the exhibition licence application, Ms McMahon provided information which the Respondent asserted was false or misleading because she answered ‘No’ to the question ‘Have any of the associates of the corporation been convicted for a relevant offence (other than a spent offence)?’ (when both she and Mr McMahon had been convicted);[12]
    3. that the Applicant had not provided a management plan in accordance with s 37 of the EAA (I shall refer to this as ‘the Management Plan issue’).[13]
  2. [28]
    I will address these issues in turn.

The Policy issue

  1. [29]
    By an Addendum to the Statement of Reasons filed on 13 March 2023 (Exhibit 5), the Respondent provided a copy of its written policy (‘the 2023 Policy’) relating to application considerations for fixed exhibit locations which was formalised in writing on 21 February 2023. The Addendum stated that the policy document details the Respondent’s considerations when assessing applications for a person who proposes to exhibit authorised animals at premises under the EAA.
  2. [30]
    In my view, the 2023 Policy purports to be a departmental policy (see Section 1).
  3. [31]
    The EAA provides that chief executive may make guidelines about: (a) matters relating to the administration of the EAA; or (b) complying with other requirements imposed under the EAA.[14]
  4. [32]
    Without limitation, a guideline may be about the following matters:[15]
    1. the operation of provisions of the EAA about monitoring and enforcement of compliance with the EAA;
    2. ways in which exhibited animals may be exhibited or dealt with, including, for example, acceptable ways of ensuring an animal’s enclosure appropriately provides for the animal’s normal behaviours;
    3. the type of information the chief executive may consider relevant in a management plan for managing the relevant risks and relevant adverse effects associated with exhibiting or dealing with an exhibited animal.
  5. [33]
    The term ‘guideline’ is defined to mean ‘a guideline made by the chief executive under section 26’.
  6. [34]
    On my reading of the 2023 Policy, it does not purport to be a ‘guideline’ nor purport to be made under s 26 of the EAA. Whether or not the 2023 Policy is a ‘guideline’ for the purposes of the EAA, I do not consider that this is material to the conclusion I have reached.
  7. [35]
    Section 5.3 of the 2023 Policy is headed ‘Granting an authority to a particular place (address)’. Amongst other matters, Section 5.3 provides:

…

Exhibition licence holders that exhibit at the licensed premises are predominantly licensed to a location that is on a large block of land outside of built-up suburban areas due to additional state or local law requirements. The facilities generally are purpose-built, designed, and constructed for conducting commercial activities related to exhibiting at the address. The proposed facility must provide evidence that they are able to significantly reduce risks associated with exhibiting and dealing with animals at the address.

…

Applications that relate to facilities that are primarily used for another commercial purpose where animals are intended to be exhibited to promote the primary business, including animals in dental practices, pet shops, schools and similar, will not be approved.

(emphasis added)

  1. [36]
    On my reading of that part of the Policy emphasised above, a blanket prohibition is placed on the approval of an exhibition authority in the identified circumstances. As I understood the Respondent’s case, the application of that part of the 2023 Policy would necessarily result in the rejection of the application by the Applicant as it is intended that the freshwater crocodile would be exhibited in the Applicant’s pet shop.  Given that the pet shop is run as a commercial business, and that in Part D of the Management Plan Ms McMahon crossed the box ‘Recording the animal’s image at the regular enclosure site for display to the public? (e.g. posting images and recorded footage of authorised animals in social media networks)’, I am prepared to infer that that the exhibition was intended to promote the business, accepting that it would also perform an educational role for members of the public attending the pet shop. However, for the following reasons, it is my view that it is impermissible to have regard to that part of the Policy.
  2. [37]
    In NEAT Domestic Trading Pty Ltd v AWB Ltd,[16] it was said by Gleeson CJ:[17]

There is nothing inherently wrong in an administrative decisionmaker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.

(emphasis added)

  1. [38]
    And in Minister Home Affairs v G,[18] it was said by the Full Federal Court:[19]

[58]It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.

[59]An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641.

  1. [39]
    The application of the 2023 Policy would preclude the approval of applications that relate to facilities that are primarily used for a commercial purpose (such as a pet store) where animals are intended to be exhibited to promote the primary business (regardless of whether the applicant is a suitable person to hold the licence and has provided an appropriate management plan).
  2. [40]
    In my view, the part of the 2023 Policy identified above is inconsistent with the EAA because, first, it requires the Respondent to take into account an irrelevant consideration, namely, whether the application relates to facilities that are primarily used for a commercial purpose where animals are intended to be exhibited to promote the primary business and, second, it does not leave the Respondent, as decision-maker, ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case’.
  3. [41]
    The main purpose of the EAA is to provide for exhibiting and dealing with exhibited animals.[20]
  4. [42]
    It is also a purpose of the EAA to ensure that the relevant risks and relevant adverse effects associated with exhibiting and dealing with exhibited animals are prevented or minimised.[21]
  5. [43]
    The purposes of the EAA are to be achieved primarily by:[22]
    1. imposing a general obligation on persons exhibiting and dealing with exhibited animals to prevent or minimise the relevant risks and relevant adverse effects associated with exhibiting and dealing with exhibited animals;
    2. requiring that authorities be obtained to allow particular animals to be exhibited;
    3. imposing additional obligations on persons exhibiting or dealing with authorised animals under exhibited animal authorities;
    4. providing for monitoring and enforcement of compliance with the EAA;
    5. providing for codes of practice relating to a person’s obligations under the EAA;
    6. providing for the chief executive to make guidelines about the application of the EAA and how a person may comply with obligations imposed under the EAA.
  6. [44]
    I consider that, having regard to the above provisions of the EAA, there is no support for an interpretation that it was the intent of the legislature that applications falling within the scope of that part of Section 5.3 of the 2023 Policy identified above should be refused. Rather, upon a proper construction of the EAA as a whole, I consider that the legislature contemplated that an exhibited animal authority may be approved in the circumstances identified in that part of Section 5.3.
  7. [45]
    Section 13 of the EAA has been extracted at paragraph [11] above.  
  8. [46]
    That section expressly contemplates that an animal may be displayed to the public for commercial purposes, and one of the examples provided is displaying an animal in a part of commercial premises accessible to the public. I consider that the relevant part of Section 5.3 of the 2023 Policy is at odds with s 13.
  9. [47]
    Further, under s 58 of the EAA, the chief executive has a discretion to grant an application (with or without conditions) but only if ss 58(1)(a) and (b) (and, if applicable, ss 58(1)(c) and (d)) are satisfied. As observed above, if Section 5.3 of the 2023 Policy is applied, this would prevent the chief executive from exercising a discretion to grant an application even in the event that the s 58 conditions were satisfied. In my view, the 2023 Policy impermissibly cuts down the chief executive’s discretion under s 58.
  10. [48]
    For the above reasons, I consider that the part of Section 5.3 identified above should not be considered as relevant to the review process.

The Suitability issue

  1. [49]
    This issue requires a consideration of whether I am satisfied that Ms McMahon is a suitable person to hold the exhibited animal authority applied for (that is, the exhibition licence).
  2. [50]
    In considering the meaning of ‘suitable person’ in s 107E(1) of the Liquor Act 1992 (Qld), in Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) P/L,[23] Fraser JA said the following:[24]

As Toohey and Gaudron JJ. observed in Australian Broadcasting Tribunal v. Bond about a similar expression, the expression “suitable person” “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 tribunal correctly appreciated that what is in issue here is not suitability to hold a general liquor licence or to practise law or to hold a financial adviser’s licence, but suitability to provide explicit sexual entertainment under an adult entertainment permit. It follows that material directed to the respondent’s reputation, character, honesty and integrity is to be assessed primarily by reference to its potential to reveal whether or not an applicant will fulfil its obligations under the permit.

(footnote omitted)

  1. [51]
    Relevantly to the present case, regard may be had to the following matters:
    1. whether Ms McMahon, or an associate of Ms McMahon, has a conviction for a relevant offence, other than a spent conviction;[25]
    2. any other matter the chief executive considers relevant to the applicant’s ability to exhibit or deal with an animal under the authority applied for, including the applicant’s capacity to comply with conditions of the authority.[26]

The ‘convictions’ (as defined)

  1. [52]
    As noted above, on 30 July 2021, Ms McMahon was found guilty of four offences under the Animal Care and Protection Act 2001 (Qld) and Mr McMahon was found guilty of one offence under that Act.
  2. [53]
    The offences in respect of which Ms McMahon was found guilty were as follows:
    1. between 19 November 2017 and 19 December 2017, failing to provide appropriate accommodation or living conditions;
    2. between 12 December 2017 and 19 December 2017, failing to provide appropriate treatment for injury;
    3. between 9 October 2019 and 24 October 2019
      1. (i)
        failing to provide appropriate treatment for injury;
      1. (ii)
        unlawfully contravening a prohibition order.
  3. [54]
    Mr McMahon’s finding of guilt was made in relation to the same facts that gave rise to the finding of guilt in respect of Ms McMahon referred to in paragraph [53](c)(i) above.
  4. [55]
    A ‘relevant offence’ is defined in the EAA to include an offence involving an animal against the Animal Care and Protection Act 2001 (Qld).
  5. [56]
    No conviction was recorded in respect of any of the offences. However, as noted above, s 53(5) of the EAA provides that the term ‘conviction’ includes a finding of guilt, whether or not a conviction is recorded. Each of the offences is a ‘conviction’ as defined.
  6. [57]
    I am satisfied that none of the convictions is a ‘spent conviction’. Whilst there is no definition of that expression in the EAA, I consider that the only reasonable meaning that can be given to that expression ‘spent conviction’ is a conviction in respect of which the ‘rehabilitation period’ has expired pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), being a period of five years commencing on the date the conviction is recorded.[27] That period has not yet expired.
  7. [58]
    Brief details of the offences were provided in the sentencing remarks made by the Magistrate. The offence in respect of which both Ms McMahon and Mr McMahon were charged was failing to treat metabolic bone disease for a turtle. The other 2019 offence which Ms McMahon was charged with involved the possession of two turtles, it seems, at a different location than was permitted by a licence. The 2017 offences were said to relate to ‘living conditions’ being a dirty pond and that resulted in some ‘shell rot’ in relation to turtles.
  8. [59]
    As noted above, no conviction was recorded. Ms McMahon was fined $1,750.00 and ordered to pay costs of $2,805.64. Mr McMahon was fined $500.00 and also ordered to pay costs of $2,805.64.
  9. [60]
    Given the nature of the offences in the context of the Act, they are plainly relevant to a consideration as to whether Ms McMahon is a suitable person.
  10. [61]
    However, the offences must be considered together with all other circumstances that I consider relevant to the issue of Ms McMahon’s suitability.
  11. [62]
    As to the offences, I take into account of the following:
    1. that the 2019 offences occurred more than five years ago and the 2017 offences occurred more than seven years ago;
    2. the Magistrate’s comments that:
      1. (i)
        Ms McMahon and Mr McMahon had ‘no history whatsoever’;
      1. (ii)
        that both persons appear as dedicated and passionate animal lovers and carers and are people who are otherwise of good character;
      1. (iii)
        that both persons are well respected in the animal care world;
      1. (iv)
        that the RSPCA had no issues whatsoever  with the care that both persons were presently providing to the animals through pet stores.
  12. [63]
    As to other matters going to Ms McMahon’s suitability, I take into account the following:
    1. that Ms McMahon holds a Certificate IV in Veterinary Nursing;
    2. that in 2022 Ms McMahon successfully completed a two-day venomous snake relocation and handling course;
    3. that in April 2023, Ms McMahon successfully completed a 20 hour online course for Wildlife Treatment & Care (Professional Veterinary Training – NSW);
    4. that also in April 2023, Ms McMahon completed the online training components for Wildlife Medicine for Veterinary Professionals – General Practice Edition;
    5. that Ms McMahon has provided a number of references attesting to her passion for the welfare and care of animals, including a reference from Dr Laura Coughran, who holds a Bachelor of Veterinary Science, regarding a visit to this McMahon’s pet store on 14 February 2023. Dr Coughran expressed the opinion that the reptile department was very well designed and all of the reptiles appear to have correct husbandry within their enclosures, designed to suit their individual requirements (including correct eating appropriate lighting, variable with species). Dr Coughran was pleased with the standard of care provided to the animals, and they appear to be in good health/body condition, and were active and exhibiting normal behaviours.

Alleged false answer/s

  1. [64]
    The licence application was in the form of an application to be made by a corporation. The stated ‘Corporation name” was the ‘McMahon Family trust”. As I understood the position of the parties at the hearing, was accepted that Ms McMahon was the appropriate applicant.
  2. [65]
    On the licence application (SOR blank) the following questions were asked:
    1. Has the corporation been convicted of a relevant offence (other than a spent conviction)?
    2. Has any of the associates of the corporation been convicted of a relevant offence (other than a spent offence)?
  3. [66]
    In answer to each question, the ‘No’ circle was ticked.
  4. [67]
    Given the nature of the form and the terminology adopted, I consider it doubtful that either Ms McMahon or Mr McMahon is, as a matter of construction, an ‘associate’ (as defined in the EAA) of the ‘corporation’ named as the trust (which is not a separate legal entity).
  5. [68]
    However, even if it were assumed that was the case (and, further, that the answer was false because each of Ms McMahon and Mr McMahon had a conviction (as defined in the EAA) which was not a spent conviction (or ‘offence’), I do not consider that, in the circumstances, the answer provides any evidence that Ms McMahon is not a suitable person to hold the exhibition licence.
  6. [69]
    The Respondent did not suggest that the answer was knowingly false.
  7. [70]
    I make the following observations about the application form and the answer:
    1. no conviction was recorded by the Magistrate;
    2. despite that, the findings of guilt did constitute a ‘conviction’ by virtue of s 53(5) of the EAA;
    3. whilst this could have been determined by Ms McMahon upon an examination of the provisions of the EAA, I take into account the fact that:
      1. (i)
        Ms McMahon is a layperson;
      1. (ii)
        the application form posed the question about whether the corporation or an associate has ‘been convicted’ of (or for) a relevant offence, which did not reflect the specific language of s 53 namely, ‘has a conviction for a relevant offence’;
      1. (iii)
        the application form did not direct attention to the specific meaning attributed to ‘conviction’ in the EAA. I consider this noteworthy in the context that the application form contained a Part 9 which contained the heading ‘Definitions to assist in the completion of this application under the Exhibited Animals Act 2015’ and set out various definitions over the following 3½ pages, yet did not contain a definition of ‘conviction’.
  8. [71]
    In all the circumstances, I am of the view that the answer given to the questions identified, even if it could be considered false, does not demonstrate that Ms McMahon is not a suitable person to hold an exhibition licence.

Conclusion as to suitability

  1. [72]
    Having regard to all of the matters addressed above, I am satisfied that Ms McMahon is a suitable person to hold an exhibition licence, notwithstanding the ‘convictions’ for offences committed in 2017 and 2019. Assessing the evidence as a whole, I consider that it demonstrates that Ms McMahon is a person whose character and dedication to the care and welfare of animals makes her a suitable person to hold such a licence.

The Management Plan issue

  1. [73]
    It is a requirement of the grant of an application that the chief executive approve a management plan for exhibiting and dealing with each particular animal or the animals of each species that are to be authorised under the authority (the proposed authorised animals).[28]
  2. [74]
    The requirements of a management plan are set in s 37 of the EAA. Section 37 provides, relevantly:
    1. by s 37(2):

The plan must—

  1. for an animal proposed to be exhibited and dealt with under the exhibition licence or interstate exhibitors permit as a particular animal—identify the animal (the subject animal); and Example of identifying a particular animal— identifying a particular animal by referring to its species and a unique identifying number obtainable from a microchip inserted in the animal
  1. for an animal proposed to be exhibited and dealt with under the licence or permit only as an animal of a species—identify the species (also, the subject animal); and
  1. state how the applicant proposes to exhibit and deal with the subject animal; and
  1. state the significant relevant risks and relevant adverse effects associated with exhibiting and dealing with the subject animal; and
  1. state the ways in which the applicant intends to prevent or minimise the significant relevant risks and relevant adverse effects; and

Examples for paragraph (e)—

• how the subject animal is to be contained in an authorised enclosure or secured during an exhibition

• if public interaction involving the subject animal is to be authorised, the restrictions to be applied

  1. if the subject animal is not native wildlife, state the arrangements for managing reproduction of the animal, including, for example, arrangements for progeny of the animal.
  1. by s 37(3):

If the plan is submitted by an applicant for an exhibition licence, the plan must also—

  1. for a subject animal proposed to be an authorised animal (category A), identify each type of enclosure that is proposed to be—
  1. a regular enclosure for the animal; and
  1. another authorised enclosure for the animal, if any; and
  1. for a subject animal proposed to be an authorised animal (category B) or (category C), identify each enclosure that is proposed to be—
  1. a regular enclosure for the animal; and
  1. another authorised enclosure for the animal, if any; and
  1. identify each regular enclosure site for a regular enclosure mentioned in paragraph (a)(i) or (b)(i); and
  1. without limiting subsection (2)(c), state—
  1. how the applicant proposes to exhibit and deal with the subject animal in each proposed regular enclosure for the animal; and
  1. if different from a matter stated under subparagraph (i), how the applicant proposes to exhibit and deal with the subject animal in each other proposed authorised enclosure for the animal.
  1. [75]
    The Applicant provided information as part of the original application to the Respondent. At the hearing, there appeared to be a dispute between the parties as to whether the original information amounted to a management plan at all. Regardless, without descending into detail, I consider that on any view of the material it did not comply with s 37(2) and (3) of the EAA.
  2. [76]
    In advance of the final hearing, the Applicant submitted a volume of additional material which included a ‘Management plan template’ downloaded from the Respondent’s website attaching various material (‘the proposed Management Plan’).[29]
  3. [77]
    The proposed Management Plan included:
    1. the Management plan template which identified:
        1. (i)
          that the application was for a single species, in Category B, being a Freshwater crocodile (Juvenile), one in number, and non-breeding;
        1. (ii)
          in Part C, stated that it was proposed to keep the animal both in a travelling collection (that is, no fixed location) and in a regular enclosure at the regular enclosure site that is open to the public most of the time;
        1. (iii)
          attached enclosure plans including photographs and specifications for a regular/fixed enclosure for one juvenile crocodile;
        1. (iv)
          the crocodile will be held in an enclosure with fresh water, land area, multiple substrate areas and immovable hide;
        1. (v)
          enclosure specifications are larger than that of the requirements set out in the (draft) Australian Animal Welfare Standards and Guidelines Exhibited Animals – Crocadilian standards;
        1. (vi)
          the regular enclosure is constructed with glass panels to prevent escaping and there will only be one crocodile in the enclosure;
        1. (vii)
          the pond size is 2 m3 with a depth of 75 cm, allowing for submerging and future growth;
        1. (viii)
          rocks and climbable platforms allow the crocodile to climb out of the water when needed as required under the standards;
        1. (ix)
          the store has nine security cameras, three in the reptile room, front door, and counter; alarms and deadbolts for the doors are provided;
    2. details were provided of the proposed travel enclosures which are also used to hold the crocodile when cleaning the regular enclosures and the holding enclosure for off display purposes:
      1. (i)
        calico bags that the crocodiles were placed into during travel;
      1. (ii)
        a microwaveable ‘snuggle buddy’ for heating;
      1. (iii)
        a mouth restraint;
      1. (iv)
        a portable travel box;
    3. welfare risks are managed by the following:
      1. (i)
        the regular enclosure will have access to UV light over part of the basking dry area;
      1. (ii)
        water heaters with temperature control and a laser heat temperature gun will be used allowing easy water temperature readings without disturbing the crocodile;
      1. (iii)
        enclosure temperatures will be monitored and recorded every day;
      1. (iv)
        records for feeding and percentages of food eaten will also be recorded as well as weighing the crocodile monthly during warmer months;
      1. (v)
        crocodiles will not be handled after they have eaten until they have defecated or three full days after feeding;
      1. (vi)
        variances in temperature gradient within the regular enclosure will range from 22°C to 38°C depending on where the crocodile is within the enclosure and the time of year;
      1. (vii)
        during cooler months, feeding will be minimised to mimic natural decreased feeding regimes in the wild and feeding will also entail audio training to condition a crocodile to a feeding station to reduce risks to the animal and staff.
  • [78]
    The proposed Management Plan was considered by Katherina Serafin, Senior Scientist and current Team Leader, Exhibited Animals, Biosecurity Queensland. Given the lateness of the provision of the Management Plan, the Respondent was given leave to adduce oral evidence from Ms Serafin. Ms Serafin was cross-examined by Ms McMahon.
  • [79]
    Ms Serafin gave evidence that had the proposed Management Plan been presented as part of the original application it would not have been approved. The substance of Ms Serafin’s dissatisfaction with the proposed Management Plan was that there was a lack of detail in relation to how the Applicant proposes to exhibit and deal with the freshwater crocodile, including dealing with the effects of temperature in relation to the crocodile, which is particularly temperature sensitive.
  • [80]
    Ms Serafin gave evidence that:
    1. much of the content of the proposed Management Plan was a ‘cut and paste’ of various codes and standards;
    2. there was a lack of detail in respect of matters such as the proposed feeding schedule, the number of staff that would be available, and measures taken in the event that a child was bitten by the crocodile;
    3. with respect to the proposed enclosure for the crocodile, whilst a photograph of the enclosure and the dimensions of the proposed pond were provided, there was an absence of detail as to matters such as where the filter would be placed; whether it would be permanently on; and what heating is provided in the enclosure; in short, there was ‘ambiguity’ in what was proposed;
    4. the Management Plan proposed to keep the animal not only in a regular enclosure at the regular enclosure site, but also in a ‘travelling collection’; and whilst the proposed containers for transporting the crocodile were suitable, the proposed use of a microwaveable ‘snuggle buddy’ for heating of the crocodile was unsuitable. Ms Serafin noted that crocodiles are ‘ectothermic’ (they cannot regulate their own temperature), and when their temperature drops, their systems can ‘close down’. It is necessary to provide a heat lamp and thermostat to ensure a proper temperature is maintained. No such provision was made in the proposed Management Plan.
  • [81]
    I accept Ms Serafin’s evidence; Ms Serafin was an impressive witness and answered questions directly and comprehensively. There was no contrary expert evidence.
  • [82]
    I consider that a compliant management plan is necessary to further the purpose of the EAA to ensure that the relevant risks and relevant adverse effects associated with exhibiting and dealing with exhibited animals are prevented or minimised.
  • [83]
    Having regard to Ms Serafin’s evidence, I am not satisfied that the proposed Management Plan (including the information accompanying the original application) is compliant with s 37(2) and s 37(3) of the EAA, in particular, s 37(2)(c), s 37(2)(e), and s 37(3)(b). Consequently, I find that the Ms McMahon has not provided a ‘management plan’ which should be approved pursuant to s 58(1)(b)(ii) of the EAA.
  • [84]
    It follows that:
    1. one of the preconditions to the grant of the licence application has not been satisfied; and
    2. the decision made by the Respondent on 7 December 2022 to refuse the application by the Applicant for an exhibition licence should be confirmed.

    • Human Rights Act

    1. [85]
      The Tribunal is exercising a function of a public nature for the purposes of the Human Rights Act 2019 (Qld) (‘the HRA’) (which commenced on 1 January 2020).[30] I am obliged to give proper consideration to any human right relevant to this decision, and not to act or make a decision in a way that is incompatible with human rights.[31]
    2. [86]
      Giving proper consideration to a human right in making a decision includes, but is not limited to, identifying the human rights that may be affected by the decision, and considering whether the decision would be compatible with human rights. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[32] In deciding whether a limit on a human right is reasonable and justifiable, the factors mentioned in s 13(2) of the HRA may be relevant.
    3. [87]
      I have considered, but have not been able to identify, any human right listed in the HRA which may be affected by this decision.
    4. [88]
      In any event, had I concluded that there was a human right of Ms McMahon affected by this decision, I would have been satisfied that, having regard to the findings in relation to the Management Plan issue, and having regard to the object and purposes of the EAA, that any such human right would not have been limited to an extent and in a manner that is not reasonable and justifiable.[33] 

    Conclusion

    1. [89]
      For the reasons set out above:
      1. I consider that it is impermissible to have regard to that part of the 2023 Policy identified above concerning applications that relate to facilities that are primarily used for a commercial purpose where animals are intended to be exhibited to promote the primary business;
      2. I am satisfied that the Applicant is a suitable person to hold the exhibited animal authority applied for, namely an exhibition licence;
      3. however, I find that the Applicant has not submitted a ‘management plan’ which:
        1. (i)
          is compliant with s 37 of EAA; and
        1. (ii)
          ought to be approved pursuant to s 58(1)(b)(ii) of the EAA;
      4. consequently, the decision made by the Respondent on 7 December 2022 to refuse the application for an exhibition licence should be confirmed.

    Order

    1. [90]
      Pursuant to s 24(1)(a) of the QCAT Act, the correct and preferable decision is that the decision made by the Respondent on 7 December 2022 to refuse the application by the Applicant for an exhibition licence is confirmed. I order accordingly.

    Footnotes

    [1]Statement of Reasons (‘SOR’), pp 112-114.

    [2]QCAT Act, s 20(1).

    [3]QCAT Act, s 20(2).  See also Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34, [7].

    [4]CTA v Queensland Police Service [2018] QCAT 440, [11].

    [5]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

    [6]EAA, s 53(1).

    [7]EAA, s 53(5).

    [8]EAA, s 77(1).

    [9]SOR, p 31; Further evidence, [5].

    [10]SOR, p 26.

    [11]SOR, p 26.

    [12]SOR, p 27.

    [13]SOR, pp 28-30; Further evidence, [4]-[16].

    [14]EAA, s 26(1).

    [15]EAA, s 26(2).

    [16](2003) 216 CLR 277.

    [17]At [24].

    [18](2019) 266 FCR 569.

    [19]At [58]-[59].

    [20]EAA, s 3(1).

    [21]EAA, s 3(2).

    [22]EAA, s 4.

    [23][2008] QCA 267.

    [24]At [35] (Mackenzie AJA and Dutney J agreeing).

    [25]EAA, s 53(4)(c).

    [26]EAA, s 53(4)(c).

    [27]See s 6 and the definition of ‘rehabilitation period’ in s 3.

    [28]EAA, s 58(1)(b)(ii), s 58(2).

    [29]Exhibit 6.

    [30]HRA, s 10.

    [31]HRA, s 10.

    [32]HRA, s 13(1).

    [33]See s 13 of the HRA.

    Close

    Editorial Notes

    • Published Case Name:

      McMahon v Department of Agriculture and Fisheries

    • Shortened Case Name:

      McMahon v Department of Agriculture and Fisheries

    • MNC:

      [2025] QCAT 15

    • Court:

      QCAT

    • Judge(s):

      Member Lumb

    • Date:

      03 Jan 2025

    Appeal Status

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

    Cases Cited

    Case NameFull CitationFrequency
    Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) Pty Ltd[2008] 2 Qd R 436; [2008] QCA 267
    1 citation
    Jump To
    Cite 1 - [2008] QCA 267
    CTA v Queensland Police Service [2018] QCAT 440
    2 citations
    Jump To
    Cite 1 - [2018] QCAT 440
    Cite 2 - [2018] QCAT 440
    Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
    2 citations
    Jump To
    Cite 1 - [2013] QCAT 34
    Cite 2 - [2013] QCAT 34
    Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
    2 citations
    Jump To
    Cite 1 - [2010] QCATA 58
    Cite 2 - [2010] QCATA 58
    NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
    3 citations
    Jump To
    Cite 1 - (2003) 216 CLR 277
    Cite 2 - (2003) 216 CLR 277
    Cite 3 - (2003) 216 CLR 277

    Cases Citing

    No judgments on Queensland Judgments cite this judgment.

    1

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