The appellant's standing
101 Procedurally, this issue arose by means of a notice of objection to competency filed on 27 July 2012, whereby the respondent objected to the competency of the application on the ground that the appellant was not a person aggrieved within the meaning of s 5 of the ADJR Act and on the further ground that the appellant did not have standing under s 39B.
102 The primary judge considered this issue at [89]-[124] of his reasons. Having set out the submissions of the parties, the primary judge summarised his reasons as follows:
[123(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 [North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492] 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 sought 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.
103 The appellant's challenges to these conclusions were grounds 1 and 2 of its notice of appeal.
104 In its written submissions the appellant contended that the specific objections raised by the primary judge, which we have set out above, should be rejected. It was irrelevant whether the appellant has Australian members. It was relevant, the appellant submitted, that it operated in Australia, including by lobbying and investigating, that it has an Australian representative and employed Australian investigators. The appellant submitted that the relevant question was what special interest the appellant had as a body corporate in the impugned decisions. The question of whether the appellant received government grants could be relevant, but it was not determinative. What was more relevant, the appellant submitted, was whether government actions manifested a recognition of the special interest of the organisation in the matter, as had occurred here. The appellant submitted that the finding by the primary judge that there was a lack of evidence as to the appellant's commitment of financial resources to animal welfare in Australia was wrong, in that the evidence showed that the appellant paid its Australian investigators and representative and committed significant financial resources to the case. It was also wrong, the appellant submitted, to find that there was a lack of evidence as to its status with respect to the animal welfare bodies. The evidence was that, aside from the RSPCA, the appellant was the only NGO in Australia that monitored the farmed animal industry for compliance with animal welfare legislation. Moreover, the appellant submitted, standing requires the establishment of a special interest, not a unique one. The appellant also submitted that the finding that there was a lack of correlation between the appellant's objects and the legislative scheme of live export licensing was also wrong. The appellant's interest in the enforcement by the regulator of licence conditions regarding animal welfare was in complete alignment with the appellant's corporate object.
105 The appellant submitted that on a multifactorial approach, the appellant clearly had a special interest which distinguished it from ordinary members of the community, as it:
(i) had as its objects the interests it sought to vindicate in challenging the decision;
(ii) was represented on government committees, advisory groups and taskforces;
(iii) engaged in activities such as research, advice, lobbying and consultations in relation to the issues relevant to the impugned decision;
(iv) was recognised by government as a significant and responsible organisation in respect of a particular cause. In a letter from the respondent's Chief Veterinary Officer, it was stated that the appellant was a "stakeholder with a significant interest in the live export trade";
(v) had engaged in activities which demonstrated its commitment to its particular values;
(vi) had expended its money on its cause;
(vii) the respondent replied to the appellant's letter of 11 May 2012. The letter was not a "mere courtesy".
The appellant submitted it stood in a similar position to the environmental organisations found to have standing to challenge decisions relating to export licences issued under the Export Control Act. It referred to Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70; (1989) 76 LGRA 200; North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; and Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516.
106 In its written reply the appellant took issue with the respondent's assertion that the Court has a role in assessing whether a challenger "is a suitable representative of the Australian public in enforcing a Commonwealth law" and that this will not be so if there is some "more appropriate moving party". The appellant submitted that neither the Court nor the executive branches of governments have such a role; nor is there some requirement that only the most appropriate moving party may challenge government decisions. What is required, it said, is simply a special interest which distinguishes the challenger from members of the public seeking to intermeddle. That special interest was present here, the appellant submitted.
107 In oral submissions the appellant referred to Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591; and Kuczborski v Queensland [2014] HCA 46; (2014) 314 ALR 528. The appellant also emphasised the unchallenged evidence of Ms Dawn Lowe, animal welfare investigator and the appellant's representative in Australia, as follows:
From my involvement with Animals' Angels in Australia and my work with the live animal export industry, I believe that Animals' Angels is the only non-government organisation in Australia apart from the States and Territories Royal Society for the Prevention of Cruelty to Animals ("RSPCA") that actively and routinely monitors the farmed animal industry (including that part of the industry involved in transport) for compliance with animal welfare legislation.
108 In written submissions, the respondent submitted that the primary judge was correct, for the reasons his Honour gave, to find that the appellant did not have standing to ventilate the present dispute. The respondent also submitted that the appellant was not in an equivalent position to the first applicant in Australian Conservation Foundation v Minister for Resources. Further, it was not irrelevant for the primary judge to have regard to the fact that the appellant has no Australian members. The respondent submitted that the fact none of a not-for-profit organisation's members were people of the Commonwealth was plainly capable of bearing on whether that organisation was a suitable representative of the Australian public in enforcing a Commonwealth law. Further, the cases indicated that it was relevant to consider whether a body was the "peak" organisation. There was an absence of evidence, the respondent said, that the appellant was the peak organisation in the present field. The "public interest" referred to by the primary judge was the public interest in this particular litigation, not the public interest in the regulation of live animal exporters. The respondent submitted that consideration of the public interest in the present litigation necessarily included reference to whether this appellant was a proper representative of the public interest; and the appellant was not, for the reasons the primary judge gave, a proper representative. The critical point about the appellant's objectives, the respondent submitted, was that they were generalised and global rather than specific and local. That those interests were generalised supported the view that they were merely intellectual. That those interests were global supported the view that, in their application to the present proceedings, those interests were not "special". That the appellant sent a letter and that the Acting Secretary replied to it could not give the appellant standing. The respondent observed that the appellant's letter was not received by the Acting Secretary pursuant to some statutory facility for persons to participate in public decision-making. The respondent argued that there was no proximity between the sending of the appellant's letter, the receipt of the letter in response, and any right, liability or duty under the AMLI Act.
109 In oral submissions the respondent contended that it is necessary to look at the level of particularity, and it was not enough to just have a broad interest in animal welfare issues. One has to look at the subject matter of the dispute. There was, the respondent submitted, no case that had discarded the basic requirement that an applicant have a special interest in the subject matter of the proceedings, distinct from that of the general public and over and above a mere desire to enforce the law. The courts were looking for concrete adverseness, so the respondent contended; and the subject matter of these proceedings was the Secretary's exercise of powers available to him under the AMLI Act with respect to a particular licence. Further, the respondent submitted that the issue came to the attention of the appellant not by reason of its activities in policing or monitoring but by reason of a discussion with Dr Lloyd Reeve-Johnson prompting the appellant to make FOI requests. In that respect, the respondent contended that the appellant's involvement was well after the event and opportunistic, and its involvement could be contrasted to other cases involving standing where public or environmental agencies had been involved in a particular issue which was the subject of the decision that they ultimately challenged. His Honour was correct, the respondent said, to focus on that question and also the absence of any real presence, with the exception of one representative in Australia. The characterisation by Mr Blanke of the appellant's interest as being to encourage the enforcement of licence conditions by the respondent and to raise public awareness regarding the present lack of enforcement was a very general concern which was not specific to, or giving rise to, a concrete interest in the subject matter of the proceedings, being the licence.
110 An analysis of these competing contentions may usefully begin with the appellant's constitution, which, as translated, states its principles, goals and tasks as follows:
s3 Principles
The organisation's work is done with the conviction,
(1) that the cruel treatment of animals contradicts the way the developed states in Europe see themselves;
(2) that there can be no moral justification for long distance animal transports;
(3) that acting on behalf of animals as co-creatures has the same priority as fighting for human rights;
(4) that animals must no longer be treated as merchandise, but as living beings with their own rights.
s4 Goals and tasks
(1) It is the organisation's objective to fight against all kinds of abuse, cruelty and exploitation of animals throughout Europe, particularly of so-called "farm and slaughter animals";
(2) to act towards bringing about the stoppage of transports of so-called "farm and slaughter animals";
(3) to accompany threatened, maltreated animals destined for slaughter, to improve their conditions of life, transport and slaughter;
(4) to direct the public's attention to outrages in animal protection matters, particularly regarding transport and slaughter conditions;
(5) to advance the development of an informed political opinion among the responsible parties, and to support the passage and implementation of regulations and laws suitable for the protection of animals;
(6) to offer animals [t]hat have been saved a place of refuge by building and maintaining animal shelters and "retirement" sites;
(7) By the formation and operation of offices, establishments and branches in other countries and German States, the work of the organisation is to be strengthened and promoted.
All of this shall be done, among other things, by
(1) accompanying animal death transports;
(2) observing transport routes, loading stations, slaughterhouses and animal markets;
(3) legally prosecuting violators of the law;
(4) international public relations work;
(5) cooperating with veterinary and other state authorities, with the police and other authorities, as well as with animal rights organisations and associations.
(6) The foundation shall be established pursuant to s4, paragraph 2, number 7 through the raising of donations on a separate bank account, while the raised funds shall be used in addition to the initial capital.
(7) The association is politically and denominationally independent.
(8) The association works internationally.
111 The undisputed facts in relation to the appellant include that it is based in Germany, was founded in 1998, and operates internationally, including in Australia, where its representative is Ms Lowe. Its core concern is with the transport and export of live animals for slaughter and other purposes. It has been involved for about 14 years in researching and investigating the export of live animals around the world. It has established permanent "investigation teams" around the world, including in Australia, that regularly carry out on-site investigations into places where animals are held, including transport vehicles, slaughterhouses, ports, border control stations and livestock markets. The investigation results are documented in reports and supported by photos and video footage, which are then submitted to the relevant authorities in order to enforce legislation or to seek further protective legislative measures.
112 The appellant currently has about 3370 members who pay an annual subscription of €100 per annum. The members are located mostly in Germany and Switzerland. There are no members in Australia.
113 The appellant is a non-profit association. Its charitable status is regularly reviewed by the German taxation authorities. The organisation's finance is primarily through donations, membership contributions and legacies. The funds are used solely for the purposes of achieving the appellant's objectives, which are long-term improvements for "farm and slaughter" animals. The substantial focus of the appellant's work is on the preparation of research and investigation reports which are then submitted to various government bodies in the hope of engendering policies and procedures that promote the safety, health and well-being of animals. For that reason, a substantial amount of the appellant's expenditure is devoted to personnel (being investigation, research and administrative personnel) and legal costs. The appellant's teams in the countries in which it operates use permanently employed and paid personnel, as well as volunteers and consultant investigators.
114 The Chairman of the appellant's Board, Mr Michael Blanke, deposed that he was aware from his researches that the live export of animals from Australia had given rise to widespread community concern about animal welfare issues for the livestock exported. He referred to the Keniry Report which, he said, was commissioned by the Minister for Agriculture following a public outcry in response to the Cormo Express disaster when over 5500 sheep died during a live export shipment. Mr Blanke also deposed to the concern of the Board of the appellant that the respondent did not take steps to sanction the breach of licence conditions relevant to animal welfare on the voyage of the MV Hereford Express in November and December 2008 and to its concern that the respondent was not enforcing the conditions imposed on the export licences for the export of livestock designed to protect and promote the health, safety and well-being of live animals exported from Australia by sea more generally. Mr Blanke deposed that the purpose of the appellant in commencing the proceeding was to encourage the enforcement of those conditions by the respondent and to raise public awareness regarding the present lack of enforcement. He referred again to the Keniry Report, which referred to the close international and community scrutiny being given to whether and how Australian animal welfare standards are met in livestock exports. He also referred to the later Farmer Review, which said that there appeared to be limited examples of AQIS having used the range of compliance measures and sanctions available to prosecute breaches of ASEL. The Farmer Review suggested a review by AQIS to examine how it had in practice followed up reports that suggested non-compliance; and come to a view on means of using its regulatory function consistent with the Australian Government's welfare expectations.
115 As noted already, Ms Lowe, who described her occupation as animal welfare investigator, was the appellant's representative in Australia and she said that, as such, her chief responsibilities were to monitor saleyards, short and long distance transport and live animal export for compliance with relevant laws, and to report non-compliance to relevant authorities. As indicated (at [107] above) Ms Lowe stated her belief that the appellant was the only non-government organisation in Australia apart from the States' and Territories' Royal Society for the Prevention of Cruelty to Animals that actively and routinely monitored the farmed animal industry (including that part of the industry involved in transport) for compliance with animal welfare legislation.
116 Ms Lowe stated that the appellant's representatives conducted investigations in the field, including at ports, and documented animal welfare concerns in reports, including with photo and video evidence. Those reports were then communicated to appropriate enforcement authorities. She then described, in 34 paragraphs, the appellant's activities in Australia from early 2004 to July 2012. These included the preparation of a report on animal welfare issues during loading of sheep and cattle onto a vessel at Fremantle in February 2005, which was sent to the DAFF officers responsible for live export matters and subsequently considered by the Federal Agriculture Minister's National Consultative Committee on Animal Welfare at its meeting in April 2005. Ms Lowe included an extract from the minutes of that meeting in relation to that report. Similar reports were forwarded in relation to the loading of animals for live export onto ships in relation to many other export voyages.
117 In September 2007, Ms Lowe, on behalf of the appellant, was invited by the Animal Welfare Unit of DAFF to participate in, and she did participate in, the National Animal Welfare Workshop hosted by DAFF in December 2007. This was part of the activities of the Australian Animal Welfare Strategy, which was run by DAFF.
118 In May 2012, Ms Lowe had a telephone conversation with an Assistant Secretary of DAFF to the effect that in response to recommendations of the Farmer Review, a team had been established by DAFF to review procedures relating to animal inspections and welfare issues prior to loading of animals onto live export ships at Fremantle and the Assistant Secretary had instructed the team to meet with Ms Lowe in Fremantle to discuss those issues. That matter was followed up by a letter to Ms Lowe, as the representative of the appellant, from the Chief Veterinary Officer, with that letter stating:
On 24 July 2012 the Department of Agriculture, Fisheries and Forestry announced reviews of the Australian Standards for the Export of Livestock (ASEL) including the role and function of the Livestock Export Standards Advisory Group (LESAG) and the inspection processes for sheep prior to export at the port of Fremantle, Western Australia. The Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Joe Ludwig recently agreed to my appointment as chair of the two steering committees.
The reviews are in line with the Australian Government's response to the recommendations made in the Independent Review into Australia's Livestock Export Trade by Bill Farmer AO in October 2011.
As a stakeholder with a significant interest in the live export trade, your organisation's views on a range of issues raised in the Terms of Reference for these reviews would be welcomed.
Copies of the Terms of Reference for these reviews are attached for your convenience.
I am seeking submissions by 7 September to allow for full consideration of your organisation's views.
…
I look forward to receiving your organisation's contribution to these reviews.
(Emphasis added)
119 The matters relied on by the primary judge do not, in our respectful opinion, adequately convey the duration and quality of the appellant's involvement in the live animal export trade from Australia. In our opinion the objects of the appellant and its activities in Australia, as described in detail by Ms Lowe over eight years, considered in relation to the effect of the statutory decision or decisions and the grounds of judicial review, show that the appellant does have standing to seek the relief set out in its application to the Court. This is supported by the fact that relevant Australian government department has recognised the appellant's particular status in the area of live animal export. Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 establishes that regard is to be had to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved: see at [43] per French CJ and Keane J; at [66]-[68] per Hayne and Bell JJ; and at [86] per Gageler J. However, it appears that French CJ and Keane J, on the one hand, and Hayne and Bell JJ on the other hand, took a different view on whether standing was to be determined by reference to the objects or scope and purpose of the statute conferring power to make the decision: compare [41]-[42] per French CJ and Keane J and [66] per Hayne and Bell JJ. See also [80] per Gageler J, rejecting the submission that the interests to which the ADJR Act refers are limited to those which fall within the subject-matter, scope and purposes of the particular enactment under which a decision was made or purported to be made.
120 Considering in turn each of the matters on which the primary judge relied for his conclusion in relation to the appellant's standing: in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant's status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant's objects or purposes do not derogate from the appellant's engagement in Australia; the appellant's Australian activities do intersect with the appellant's objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant's objects or purposes.
121 In our view this evidence establishes that the appellant has a special interest to seek the relief set out in its application to the Court. We accept that standing requires a sufficient interest, not one which is a unique interest or the strongest interest compared with others who may have an interest.