Nov 16, 20232 min read

Objectives of “Brumby Bill” Found to Contradict Commonwealth Legislation

The New South Wales Wild Horse Heritage Act (also known as the Brumby Bill) was passed in July 2018 by the New South Wales Legislative Assembly and Legislative Council. The objective of the act is to both “recognise the heritage value of sustainable wild horse populations” within the Kosciuszko National Park and to “protect that heritage.”

A lone wild horse, or brumby, drinks from a stream in Kosciuszko National Park with the text "The "Brumby Bill"" foregrounded.

The Wild Horse Heritage Management Plan is a key part of the Act and lays out the following:

The objectives of wild horse management in Kosciuszko National Park.
Strategies for achieving those objectives, including how to manage the population size of wild horses.
Measures to monitor and research wild horses.
Procedures for reviewing and amending the Plan.

The act also lays out two bodies of relevance to the management of wild horses. The Advisory Panel is a group of people with expertise in wild horse management, ecology, and heritage. It is responsible for providing advice to the Minister on the development and implementation of the Wild Horse Heritage Management Plan. The Heritage Council is a statutory body responsible for identifying and protecting heritage places in New South Wales. It is responsible for providing advice to the Minister on the heritage value of wild horses and on the impact of the Act on heritage values.

Constitutional Validity of the Brumby Bill

In October of 2023 a senate committee questioned the constitutional validity of the act following the release of a senate inquiry report into the impacts and management of feral horses.

The report recognised that the fragile ecosystem of New South Wales’ national parks were being damaged by hard hoof animals, such as brumbies, and that 12 animal species were at risk of extinction. Furthermore, the report highlighted that the Brumby Bill “directly contradicts'' the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. As such, the Wild Horse Heritage Act may be considered unconstitutional.

Joe McGirr, Independent Wagga Wagga MP had previously called for the Brumby Bill to be stripped and backed the senate inquiries report:

"The senate report has clearly indicated we have a serious problem… They've raised the possibility that the NSW Wild Horse Heritage Act may be unconstitutional because it's in breach of commitments that the Commonwealth have given in respect to protecting the environment.”

Niamh Kinchin, a Constitutional Law Associate Professor from the University of Wollongong, stated that the concerns raised by the senate inquiry relate to Section 109 of the constitution, which speaks to situations wherein state and Commonwealth law are inconsistent. In such an event, Commonwealth Law trumps state legislation. Dr. Kinchin reflected on how the two laws contradict each other:

"You need to be able to obey both laws — if you can't obey both laws, then they will not be consistent…The question [the committee] is asking is can you treat feral horses as a threat to threatened species – which the Commonwealth act does – and at the same time protect them because of their heritage value, which the state is concerned with?"