Consideration and Analysis
122 In the face of my conclusions at [26] and [88] above, it is only necessary to consider the issue of the applicant's standing in relation to the second decision, and then only in the context of the declaratory relief sought in Order 2 of the originating application.
123 I have come to the view that the applicant lacks standing to review the second decision of the respondent in the context of the declaratory relief sought, either as a "person who is aggrieved" under s 5 of the ADJR Act or a person with a "special interest" in the subject matter of the action or the relief sought, for the following reasons:
(1) The applicant accepts that it has no "financial or other private interest in the outcome of the case: Ex 4 at 8 [35]. The applicant's asserted interest in encouraging the enforcement of licence conditions is not a "special interest". See Gibbs J (as his Honour then was) in Australian Conservation Foundation at 530-531, and Mason J at 548:
In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J. when he says that "A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi".
See too Aickin J in Onus at 53.
(2) The applicant's argument that its case is more in line with the High Court's decision in Onus is, as noted in [107] above, not supported by reasons. Moreover, it is difficult to see any merit in this argument. In Onus, Mason J said at 43:
As other members of the Court have shown, this case is clearly distinguishable from Australian Conservation Foundation Inc. v. The Commonwealth. The relics here have great cultural and spiritual significance for the Gournditch-jmara community. The members of that community are the guardians of the relics according to their laws and customs and they use the relics. I agree with Gibbs C.J. in thinking that in these circumstances the appellants have a special interest in the preservation of the relics, sufficient to support locus standi.
At 42, Stephen J said:
[T]he distinction between this case and … [Australian Conservation Foundation] case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of "special interest" supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue.
(3) As noted by Sackville J in North Coast at 505, the observations of Stephen J in Onus have proved influential in later cases. In discerning the principles to be derived from Australian Conservation Foundation, Sackville J commented at 511-512:
[A]lthough cases interpreting the phrase "person aggrieved" in the ADJR Act have used broad language, it has never been held that the principles governing the award of declarations and injunctions under the general law have been superseded by different and broader conceptions under the ADJR Act.
His Honour proceeded to his view of the principles relevant to the case before him that had been established by Australian Conservation Foundation, in the following terms (at 512):
• First, North Coast must demonstrate a "special interest" in the subject matter of the action (at 530, 547-548). A "mere intellectual or emotional concern" for the preservation of the environment is not enough to constitute such an interest (at 530). The asserted interest must go beyond that of members of the public in upholding the law (at 526) and must involve more than genuinely held convictions (at 539). See Yates Security Services Pty Ltd v Keating [(1990) 25 FCR 1] (at 9, 19).
• Secondly, a person may be able to demonstrate a "special interest" in the preservation of a particular environment (at 530). For this purpose, as Onus v Alcoa (at 41) allows, an intellectual or emotional concern is no disqualification from standing to sue.
• Thirdly, to the extent (if any) that [N]orth [C]oast relies on possible non- compliance with the Administrative Procedures, neither the Environment Protection Act (with the possible exception of s 10) nor the Administrative Procedures themselves confer any private rights enforceable by individuals (at 524-525, 542, 547). An allegation of non-compliance with the Environment Protection Act or Administrative Procedures is not enough of itself to confer standing on North Coast.
• Fourthly, the fact that a person makes comments on an EIS produced pursuant to directions given under the Administrative Procedures does not of itself confer standing on that person to challenge or complain of a decision resulting from the environmental assessment process (at 531, 540-542). Thus, North Coast's role as a commentator on Sawmillers' draft EIS does not, without more, confer standing to challenge the decision to grant Sawmillers an export licence or, presumably, to require reasons for such a decision.
• Fifthly, an organisation does not demonstrate a special interest in the environment sufficient to establish standing simply by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment. Otherwise, it is likely that the ACF would have had standing to complain of the decision to approve the exchange control transaction relating to the development at Farnborough.
(4) Sackville J concluded (at 512-513):
It follows that, in order to show a special interest in the subject matter of the litigation, North Coast cannot rely solely on its objects, its role as commentator in Sawmillers' EIS or any complaint made by it about possible non-compliance with the statutory procedures. North Coast's case is not, however, confined to these matters. It points to other factors demonstrating (in the language of Stephen J in Onus v Alcoa) the importance of its concern with the subject matter of the decision and the closeness of its relationship to that subject matter.
In my opinion, the most significant of these facts are the following:
• First, North Coast is the peak environmental organisation in the north coast region of New South Wales, having 44 environmental groups as members. Its activities relate to the areas affected by the operations generating the woodchips that are the subject of the export licence granted to Sawmillers.
• Secondly, North Coast has been recognised by the Commonwealth since 1977 as a significant and responsible environmental organisation. This recognition has taken the form of regular financial grants for the general purposes of the organisation. While the grants have been modest, they have been recurrent and reflect acceptance by the Commonwealth of the significance of the role played by North Coast in advocating environmental values.
• Thirdly, North Coast has been recognised by the Government of New South Wales as a body that should represent environmental concerns on advisory committees. The most important form of recognition for present purposes has been membership of North Coast's nominees on the Forestry Policy Advisory Committee, the role of which is to advise the State Minister on forestry matters, including the management of State forests. This and other forms of participation in official decision-making processes show that the State government has accepted North Coast as a representative of environmental interests.
• Fourthly, North Coast has conducted or co-ordinated projects and conferences on matters of environmental concern, for which it has received significant Commonwealth funding. While these have not specifically concerned forest management or woodchipping, they reflect North Coast's standing as a respected and responsible environmental body.
• Fifthly, independently of North Coast's long involvement with successive licences granted to Sawmillers, it has made submissions on forestry management issues to the Resource Assessment Commission and has funded a study on old growth forests, focusing upon the Wild Cattle Creek State Forest.
(5) I have referred to Sackville J's reasons in North Coast at some length because they are heavily relied on by the applicant in the present case for its claim of standing (see [107] above). However, as I there said, the context in which Sackville J listed these factors was what was said by Stephen J in Onus at 42, reproduced in (2) above, in particular that the criterion of "special interest" supplies no "rule of thumb, capable of mechanical application". The factors listed by his Honour in North Coast at 512-513 are, in my view, too fact-specific, to give the applicant any "leg-up" in this case. The particular subject matter in that case - the grant of a licence to export woodchips from an area on the north coast of New South Wales - and the closeness of the applicant's relationship in that case to that subject matter - the peak environmental organisation on the north coast of New South Wales with its activities relating to the areas affected by the operations generating the woodchips that are the subject of the export licences - have no correlation to the particular subject matter in this case - the decision not to issue a notice pursuant to s 23 of the AMLI Act to ILE to show cause in response to a written "request" by the applicant grounded in events occurring several years before the "request" - and the absence of proximity of the applicant's relationship in this case to this subject matter - a foreign animal welfare organisation with no Australian members and only a representative presence in Australia through one person; and with its activities - its general concern for animal welfare - being spread globally, and not unique to Australia.
(6) Both parties embraced a multi-factorial approach to the issue of standing (as to the applicant, see [117] above; as to the respondent, see [98] above), however, consistent with Stephen J's rejection in Onus of any "rule of thumb, mechanically applied" approach, it is not just the nature of the factors to be considered, but the weight to be attached to each, individually and together; some will carry great weight; at the other end of the spectrum, some will be negative, while others will be neutral.
(7) The applicant pointed to the following factors as supporting its claim to standing (see [117] above); that it had as its objects the interests it seeks to vindicate in challenging the decision; that it is represented on government committees, advisory groups and task forces; that it engages in activities such as research, advice, lobbying and consultation in relation to the issues relevant to the impugned decision; that it is recognised by government as a significant and responsible organisation in respect of the particular cause; that it has engaged in activities which demonstrate its commitment to particular values; and that it has expended money on its cause. According to the applicant, while the question of whether the organisation receives government grants can be a relevant consideration, it is not determinative. According to the applicant, what is determinative is that the government has acted in such a way as to recognise the special interest of the organisation in the matter; the making of a financial grant is but one way of evidencing this recognition (see [119] above). The applicant also pointed to the context of the legislative scheme governing live export, in particular the AMLI Act and the EC Act, as supporting its claim to standing: it is evidence that its activities in Australia have repeatedly served to bring to the attention of DAFF numerous potential breaches of the law relating to live export concerning animal welfare (see [120] above).
(8) The respondent accepted that, like the plaintiff in North Coast, the applicant has conducted or co-ordinated projects on matters of animal welfare concern and the executive governments of the Commonwealth and various States have invited it to participate in official decision-making processes. However, the respondent pointed to a number of other factors which, in my view, fall into what I called the "negative" or "neutral" categories that outweigh the factors on which the applicant relies for its claim to standing. These are listed and dealt with in [98] above and they do not gain greater weight by replicating their import as part of this analysis.
(9) In summary, I am of the view that the applicant lacks standing to apply for review of the applicant's second decision - not to issue a notice pursuant to s 23 of the AMLI Act to ILE to show cause in terms of its originating application - or in the relief sought - a declaration that the second decision was not authorised by law for reasons relied on in its originating application (Order 2), for the following reasons:
(i) Its lack of presence in Australia, either through establishment, organisation, registration or membership; in the latter case, either through individuals who are residents of Australia or other groups or associations organised in Australia concerned with animal welfare, in particular in the export of live-stock from Australia: cf., North Coast at 512-513;
(ii) its limited recognition in Australia by the governments of the Commonwealth and the States; limited in the sense of not extending to financial grants or assistance, even on modest terms: cf., North Coast at 513;
(iii) the lack of any evidence as to its commitment of financial resources to animal welfare in Australia, in particular to the export of live-stock from Australia, and the resources, not only financial, but those directed to community engagement by way of advocacy, lobbying and other means, which will be wasted or put at risk in the absence of standing;
(iv) the lack of any evidence as to its status or standing with respect to, or its co-ordination or co-operation with, other bodies organised or established in Australia concerned with animal welfare, e.g., the RSPCA;
(v) the broad and global nature of its objects or purposes in relation to animal welfare, compared to the limited purposes of the legislative scheme governing the export of live-stock from Australia, in particular the AMLI Act and the EC Act. The fact that the applicant has interacted with government instrumentalities such as DAFF and brought to their attention non-compliance activities for action does not overcome the lack of intersection in this regard; and
(vi) the nature of the decision ought to be reviewed, its lack of contemporaneity with the events upon which it is grounded, and the nature of the relief sought, in particular its lack of utility.