8A An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 8 March 2022, purportedly pursuant to s 19 of the Forest Practices Act 1985, in relation to FPP 105A (the old purported certification of FPP 105A).

8B Alternatively to 8A, an order in the nature of certiorari to quash the old purported certification of FPP105A.

1. An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 6 April 2022, purportedly pursuant to s 19 of the Forest Practices Act 1985 on 6 April 2022, of a forest practices plan in relation to coupe CC119A (FPP 119A) (the new purported certification of FPP 119A).
2. Alternatively to 9, an order in the nature of certiorari to quash the new purported certification of FPP 119A.

10A An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 18 January 2022 of FPP 119A.

10B Alternatively to 10A, an order in the nature of certiorari to quash the purported certification on 18 January 2022 of FPP 105A (the old purported certification of FPP 105A)."

1. The trial judge delivered reasons for his decision on 9 December 2022. The appellant's amended notice of appeal was filed on 16 February 2023 and contained the following grounds:

"1 The trial judge erred in holding that the exercise of the delegated power to certify a forest practices plan under the Forest Practices Act 1985 (Tas) (the FP Act) was not conditioned on observance of the principle of natural justice that the decision maker not be in a position of apprehended bias: J [75], [79].

(a) the FP Act did not exclude the implication that the exercise of power was so conditioned: J [75];

(b) the impugned decisions to certify forest practices plans in relation to coupes CC105A and CC119A (the impugned decisions) were affected by apprehended bias, and were accordingly invalid and liable to be quashed."

1. The essential facts are not in dispute. The Authority is the State instrumentality responsible for administering the Act. The harvesting of timber and the clearing of trees in Tasmania is unlawful unless authorised by a certified forest practices plan. Application for certification of a forest practices plan must be made to the Authority.
2. Sustainable Timber Tasmania (STT) is the name used by Forestry Tasmania, a corporation established under the Forestry Act 1920 and continued in existence by subsequent legislation. In 2022 STT undertook the harvesting of timber on two areas of land in accordance with two forest practices plans certified by two persons who, for the purposes of such certification, were delegates of the Authority.
3. There is no challenge to the decision of the trial judge that the delegations were valid. In issue are the decisions of each delegate to certify the forest practices plans pursuant to which STT undertook the harvesting of timber.
4. The relevant facts concerning the delegations and the rules of the certifiers were summarised by the trial judge:

"7 The timber harvesting which is the subject of these proceedings was conducted by STT in reliance on two forest practices plans, one dated 18 January 2022 concerning an area of 42.8 ha called coupe CC119A and another dated 8 March 2022 concerning an area of 37 ha called coupe CC105A. The plan for coupe CC119A was certified on 18 January 2022 by Peter Johnstone. At the time he certified the plan, Mr Johnstone was the subject of an instrument of delegation from the Authority dated 1 January 2006. He was also an employee of STT. The plan for coupe CC105A was certified on 8 March 2022 by Jarrod Burn. At the time he certified the plan Mr Burn was the subject of an instrument of delegation from the Authority dated 20 December 2013. He was also an employee of STT.

1. STT began harvesting trees under both plans. Officers of the applicant, concerned about the harvesting activities, began to make enquiries about the certification of the plans and the instruments of delegation. On 31 March 2022, having been advised to do so in response to matters raised by representatives of the applicant, and to resolve doubts which may have existed about the validity of the original delegations, the Authority revoked the existing instruments of delegation and made new instruments of delegation for numerous persons including Mr Johnstone and Mr Burn. The new delegations to Mr Johnstone and Mr Burn are, in each case, dated 31 March 2022. On 6 April 2022 Mr Johnstone certified the plan for coupe CC119A again. On 6 April 2022 Mr Burn certified the plan for coupe CC105A again."

1. The evidence establishes that Mr Johnstone had been employed by STT since 1998. In his affidavit he described his position as 'Co-ordinator Harvesting and Sales'. He did not depose when he was appointed a forest practices officer but stated that he had 'held authority to certify forest practices plans since 2006', by which he was clearly referring to the delegation. He explained that STT maintains a schedule of coupes intended to be harvested during the following 18 months. Where harvesting of land is proposed, and no certified forest practices plan is in place, a delegate is allocated 'in consultation between forest practices officers and other STT staff, to review and certify a forest practices plan for that coupe.' Mr Johnstone's evidence was that, when acting as delegate of the Authority to consider an application for certification of a forest practices plan made by STT, he had challenged, required amendments to and refused to certify the contents of the plan on many occasions. He claimed to have done so without any repercussions on his employment and had never felt pressure to make decisions about certification in a particular way. As to coupe CC119A he said that in January 2022, he 'saw this coupe on the schedule and decided that I would review and certify the forest practices plan for that coupe myself.' Over several days he undertook a review of the contents to ensure that it complied with the Code and the Act. He carefully inspected the land and consulted with other officers including a 'special values planner.'
2. After Mr Johnstone certified the plan, harvesting commenced. He attended coupe CC119A in his capacity on six separate days during the course of the period between 19 January 2022 and 28 February 2022, at which time I infer that he observed the harvesting operations. When he became aware of the challenge to the validity of his delegation he was asked by a representative of the Authority, indirectly through another employee of STT, to recertify the plan in accordance with the new delegation. Mr Johnstone's evidence was that he reviewed the plan and, taking into account his knowledge of the area and what had occurred on the land, he satisfied himself that the plan was compliant and should again be certified.
3. When cross-examined by counsel for the applicant, Mr Johnstone agreed that before the forest practices plan was first certified he played an active part in its preparation. He did so in consultation with other members of the 'harvesting team'. The team included planners who were specifically responsible for assessing whether areas proposed for timber harvesting have special natural or cultural value, such as streamside reserves or flora and fauna habitat. The plan was submitted to a 'peer review system' in which it was assessed and approved by the heads of department within STT responsible for planning, harvesting, roads and forest management. Forest practices plan application documents were prepared from STT internal systems. Mr Johnstone agreed that he had never been asked to certify a forest practices plan which had not been prepared by STT. His employment income came from STT and he was not paid by the Authority for his work as a delegate. Mr Johnstone explained that once a forest practices plan is certified for an area and harvesting commences, his work in supervising the harvesting involved 'two hats': he acted as a forest practices officer 'first and foremost', but also as an employee of STT. He looked at the harvesting operations from 'both angles.'
4. Mr Burn was employed by STT in 2015 and at the relevant time his position was Coordinator of Planning. His employment seniority and authority within STT was equivalent to that of Mr Johnstone. His evidence about that process for identification of land proposed to be logged, and preparation and certification of the forest practices plan for that area mirrored the evidence of Mr Johnstone. Mr Burn said that he took it upon himself to review and certify the plan for CC105A because it was complex, and he had been working with STT staff since 2020 to ensure its compliance. He had inspected the land on a number of occasions. When it came to considering his decision to certify the plan he spent several days reviewing the relevant materials and again walking the site. He recertified the plan for the same reasons concerning the validity of his first delegation. He reconsidered it in detail and, in light of what he already knew, determined that no changes were required.
5. Forest practices officers are subject to a Forest Practices Officer Manual issued by the Authority. Whilst a document with that title does not seem to have statutory force the Act provides for The Forest Practices Board to prepare a code of conduct for forest practices officers.
6. Included in Authority's manual are statements that:

'The role of the FPO is to assist the FPA in the implementation of the Act. The primary objective of the Act is the achievement of sustainable management of Tasmania's forests with due care for the environment. The achievement of this objective is required to be as far as possible self-funding and self-regulating. The appointment of FPO's from within the forest industry is part of a co-regulatory approach.

FPO's are expected to undertake their FPO duties at the same time as they are undertaking their normal duties for their employer or client.

The FPO has a separate responsibility under the Act to the FPA that may on occasions have the potential to conflict with the FPO's responsibilities to the employer or client.

The FPO should ensure that their employer or client understands that FPO's have statutory responsibilities under the Act and that the effective functioning of the forest practices system requires that FPOs actions are consistent with the Act and FPA directions. The FPO Code of Conduct gives guidance on how these issues are to be handled.'

1. Both Mr Johnstone and Mr Burn deposed that in deciding whether to certify a forest practices plan they acted independently as delegates of the Authority. I was impressed by the evidence of both men and have no doubt that they well understand their obligations as forest practices officers and delegates of the Authority. However, the applicant does not assert that either Mr Johnstone or Mr Burn were actually biased when making the decisions to certify. The applicant submits, correctly in my view, that the evidence of Mr Johnstone and Mr Burn about their own impartiality carries no weight when considering the issue of apprehended bias. The test is one which requires no conclusion about matters which actually influenced the outcome of decisions and so no attempt should be made to inquire into the actual thought processes of Mr Johnstone or Mr Burn: Ebner v Official Trustee in Bankruptcy at [8]. That is not to say that some of the circumstances averted to by Mr Johnstone and Mr Burn about the regulatory scheme within which each decision to certify was made may not be relevant to what a fair minded lay observer, aware of all the relevant facts and circumstances, might apprehend. But even in that respect care should be taken to not give such matters undue weight.
2. As explained earlier in these reasons, STT as the Forestry corporation established by the Forestry Act 1920, is a statutory authority subject to the Government Business Enterprises Act 1995. Under that Act, s 7, the principal objectives of a Government Business Enterprise include to perform its functions and exercise its powers so as to be 'a successful business by operating in accordance with sound commercial practice and as efficiently as possible', and 'achieving a sustainable commercial rate of return that maximises value for the State in accordance with its corporate plan and having regard to the economic and social objectives of the State.' I also referred earlier, in a different context, to the role of STT as Forest Manager under the FM Act. It manages and controls forest operations in Tasmanian public forests, permanent timber production zone land, for the purpose of selling forest products. It must do so in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. It must also make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries and certain timber, including special species timber, to other prescribed industries.
3. Both the Authority and its delegates, forest practices officers and STT have obligations under the statutory scheme to comply with the Act and the Forest Practices Code. Even so, there is potential for conflict between the commercial and business objectives of STT and the monitoring of compliance with the Act and the Code. That potential for conflict is a factor which may lead an observer to reasonably conclude that a forest practices officer who is on the one hand a delegate of the Authority but on the other an employee of STT may certify a forest practices plan in accordance with an application made by STT other than on an independent and impartial evaluation of the merits. The same may be said whether the delegate is an employee of STT or another entity which performs harvesting operations. There may exist an unconscious influence in decision-making arising from the conflicting duties to uphold strict compliance with the Act and the Code and a duty or obligation to the employer. The possibility of conflict is expressly recognised by the Authority itself in the passage in the Forest Practices Officer Manual to which I referred. Although the manual makes clear the obligation to give precedence to the duty to the Authority and to enforce the Act, in my view a fair minded lay observer might reasonably apprehend an unconscious tendency to facilitate rather than refuse or limit harvesting, because refusal or limitation might be contrary to the interests of an employer and contrary to the work done by the delegate in a different capacity to prepare the plan."

1. The trial judge identified the relevant features of the legislative scheme:

'... ensure that all forest practices are conducted in accordance with the Forest Practices Code, to provide for the issue of that Code, to provide for the creation of private timber reserves, to provide for the issue of codes of conduct for forest practices officers, and to provide for incidental and consequential matters.'

1. The term 'forest practices' is broadly defined in s 3, the interpretation provision, to mean:

'(a) the processes involved in establishing forests, growing or harvesting timber, clearing trees or clearing and converting threatened native vegetation communities; and

(b) works (including the construction of roads and the development and operation of quarries) connected with establishing forests, growing or harvesting timber or clearing trees...'

1. The Act regulates forest practices on both public and private land. It is part of a suite of legislation which implements the State's forest practices system. The objective of that system is stated in the Act, Schedule 7, which provides:

'The objective of the State's forest practices system is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes while delivering, in a way that is as far as possible self-funding-

(c) delegated and decentralized approvals for forest practices plans and other forest practices matters; and

(d) a forest practices code which provides practical standards for forest management, timber harvesting and other forest operations; and

(ea) an emphasis on research, review and continuing improvement; and

(eb) the conservation of threatened native vegetation communities; and

(f) provision for the rehabilitation of land in cases where the forest practices code is contravened; and

(h) through the declaration of private timber reserves- a means by which private land holders are able to ensure the security of their forest resources.'

1. The suite of legislation includes the Act, the FM Act, the Private Forests Act 1994 and the Tasmanian Forests Agreement Act 2013. The Private Forests Act, s 4, establishes a body called Private Forests Tasmania. Section 30(5) of the Act provides that the Authority shall, after consulting with Private Forests Tasmania and considering public submissions on a draft Code, issue a Code called the Forest Practices Code on the conduct of forest practices.
2. The Authority is established by s 4AA of the Act. It has a Board of Directors comprising seven directors, six of whom are appointed by the Minister and who must each hold relevant knowledge and expertise in specified fields. The other member of the Board is the person who may from time to time hold the position of chief forest practices officer, who is a member of the State Service.
3. The role, objectives, functions and powers of the Authority are respectively stated in ss 4AB, 4B, 4C and 4D. The objectives of the Authority include to act in a manner that 'best advances the objectives of the State's forest practices system': s 4B(2)(a). The Authority's functions include 'to oversee standards for forest practices plans': s 4C(e).
4. The Act also establishes an entity called the Forest Practices Advisory Council which comprises appointees with specified knowledge, expertise and experience. The Council has the objectives and functions stated in s 37B and s 37C, including to advise the Authority on review of the Act and the Code.
5. As the Forestry corporation, STT undertakes forest operations in Tasmanian public forests, more correctly referred to as permanent timber production zone land as that term is defined in the FM Act. By operation of s 7 of that Act, STT is appointed the Forest Manager for permanent timber production zone land and has the functions and powers stated in s 8 and s 9. Its functions include to manage and control all permanent timber production zone land and to undertake forest operations on permanent timber production zone land for the purpose of selling forest products: s 8(a) and (b). The FM Act, s 15, provides that the Forest Manager must perform its functions in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. By s 16, the Forest Manager must make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries as well as certain timber, including special species timber, to other prescribed industries. The Minister may declare specified Crown land to be permanent timber production zone land but only after having obtained advice from STT that the land is required for the supply of forest products: FM Act, s 10(1) and (3). Any land purchased or acquired by STT becomes permanent timber production zone land: s 12.
6. Any person may prepare a forest practices plan: s 18(1)(a). Applications must contain the information specified in s 18(2) including specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber or the clearing of trees: s 18(2)(a). It is also to include an estimate of the period during which the forest practices of the plan, or phases of the plan, are to be carried out: s 18(2)(c). If a plan involves clearance and conversion of a threatened native vegetation community further specifications are required: s 18(2)(bb). All specifications required by s 18(2) must be in accordance with the Forest Practices Code: s 18(3).
7. Applications for certification of a forest practices plan are made to the Authority: s 18(1)(b). Applications must be in writing and be accompanied by the required fee and the approval of the owner of the land on which the forest practices are to be conducted: s 18(4) and (4A). The Authority may request provision of further particulars of the plan: s 18(5). The Authority, when it receives an application for certification of a forest practices plan, may certify it, may refuse to certify it, or may amend the plan in such manner as it considers necessary and certify the plan so amended: s 19(1). The Authority's power to amend the plan includes the power to insert conditions and restrictions to be complied with in the harvesting and clearance of trees: s 19(1A). Certification or refusal of certification must, unless further particulars have been requested, occur within 28 days of the receipt of the application: s 19(2).
8. It is an offence under s 17(4) to carry out, or authorise the carrying out of, timber harvesting without a certified plan and it is an offence under s 21 to contravene a certified plan."

1. The Authority's power to delegate functions or powers is contained in the Act, s 43. At the time the delegations were made to Mr Johnstone in 2006 and Mr Burn in 2013, s 43 was in these terms:

(1) Subject to subsection (2), the Authority may delegate any of its functions or powers other than this power of delegation.

(2) The Authority shall, by instrument in writing, delegate to any person for the time being appointed as an officer under section 38 (2), the performance or exercise of the Authority's functions and powers under Division 1 of Part III, and shall not revoke wholly or in part the delegation while he or she holds that appointment.

(3) A delegation under subsection (2) may be unconditional or, if the instrument of delegation so provides, conditional.

(4) If the delegation under subsection (2) is conditional, the delegate is, in the performance and exercise of the delegated functions and powers, subject to the direction of the chief forest practices officer.'

1. In that form, subss (3) and (4) of s 43 applied only to delegations made under subs (2). In 2019, subss (3) and (4) of s 43 were amended to expand their application to delegations made under both subss (1) and (2). Section 43 was in those terms when the new delegations to Mr Johnstone and Mr Burn were made on 31 March 2022.
2. First to be noticed is the distinction between the terms of subs (1) and subs (2) of s 43. Subsection (1) provides a power, which may be exercised, to delegate any of the Authority's functions and powers under the Act. By contrast, s 43(2) operates to require the Authority to delegate to a person appointed as an officer under s 38(2), "the performance or exercise of the Authority's functions and powers under Division 1 of Part III". Those functions and powers include the Authority's power under s 19 to certify, with or without amendment, or refuse to certify a forest practices plan.
3. The provisions of the Acts Interpretation Act 1931 (the AI Act) are also relevant to the contentions about the validity of the delegations to Mr Johnstone and Mr Burn. The AI Act is to be applied in the interpretation and construction of the Act except in so far as any provision is inconsistent with or repugnant to the intent, object or express terms of the Act: AI Act, s 4(1).
4. The AI Act, s 23AA, is entitled Delegation and relevantly provides:

(b) must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorized by the body for that purpose; and

(c) may be revoked, wholly or partly, by the delegator.

(3) A delegated function or power may be exercised only in accordance with any conditions to which the delegation is subject.

(4) A delegated function or power that is duly exercised by a delegate is to be taken to have been exercised by the delegator.

(6) A function or power that has been delegated may, notwithstanding the delegation, be exercised by the delegator.

(8) In all courts and before all persons acting judicially, an instrument purporting to be executed by a delegate in the capacity as a delegate is to be received in evidence as if it were an instrument executed by the delegator and is to be taken to be an instrument executed by the delegator."

1. As to the application of the legislative scheme to the circumstances under consideration, the following passages expose the reasoning of the trial judge leading to the view that the exercise of the delegated power to certify was not conditioned on the absence of apprehended bias:

1. As was stated by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [ 1997] FCA 324, 81 FCR 71:

'The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule'): see Aronson and Dyer, supra, at 387 ff.'

1. In cases in which the decision maker is not a judge, consideration of the issue must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. Here, we are not dealing with a judicial decision, but an administrative decision. It is not contended by the applicant that it had a right to be heard in relation to the decision to certify the forest practices plans, either the certification or the re-certification. The applicant had no such right. There is nothing in the legislation which recognises or suggests that a person in the applicant's position had any part to play in that decision or was a person to whom the rules of natural justice would apply. An application for certification of a plan must be in writing and accompanied by a memorandum signed by the owner of the subject land or, if the land is subject to a forestry right, the holder of that right approving the application: the Act, s 18(4). There is no requirement that an application for certification be advertised or notified. There is no provision giving any person a right to be heard in respect to the application. Where the Authority certifies a plan, refuses to certify a plan or certifies an amended plan, it must notify the applicant, the owner and the holder of any forestry right: s 19(3). There is no requirement that any other person be notified. The Act also provides for variations to a certified plan either at the application of the person who applied for certification or at the instigation of the Authority: s 23 and s 24. The Authority may also revoke a certified plan: s 24A.
2. The Act provides for an appeal to the Tasmanian Civil and Administrative Tribunal against a decision arising from an application to certify a forest practices plan or to vary or revoke a certified plan: s 25. Only a person who applied to the Authority for certification of a plan, and is aggrieved by the decision, has a right to appeal: s 25(1). It follows from these provisions that the applicant had no right to be heard in respect to a decision by the Authority or its delegate to certify a forest practices plan and no statutory right of appeal against the decision.
3. What the applicant contends for is that, independently of any expectation that it be consulted and given an opportunity to put a case to the Authority or its delegate about the exercise of the power to certify, there exists an overriding duty or obligation, owed to the public, and particularly to the applicant after its interest in the proposed harvesting activities and the plans was made known, that the decision to certify was made without bias. Usually, although not always, consideration of the question of apprehended bias arises in circumstances in which a person falls within a category of persons said to be entitled to natural justice in respect to a decision. As stated by Brennan J in Kioa v West (1985) 159 CLR 550 at 612:

'Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances.'

'To determine whether the legislature's intention is to condition the exercise of a statutory power upon observance of the principles of natural justice - the threshold question - one must have regard to the text of a statute creating the power, the subject matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be exercised.'

1. In circumstances such as the present, the distinction between a requirement to observe procedural fairness and the content of the duty is not always easy to identify. In considering this issue I have in mind the following passage from the reasons of Deane J in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; 169 CLR 648 at 652-653:

'Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g., Jackson, Natural Justice, 2nd ed (1979), p 100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed (1989), vol 1(1), par 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.'

1. In my view the interests of the applicant are not apt to be affected by the relevant decisions in a way which is substantially different from the way in which the decisions are apt to affect the interests of the public at large. I do not see that the Authority or its delegate was, in making the decision to certify, bound or entitled to have regard to the interest of the applicant or to extend procedural fairness to it in the making of the relevant decision. There is no legislative intent discernible that the delegate should be bound by the principles of natural justice in favour of the applicant. The applicant relied on the statements of principle concerning apprehension of bias in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76, but the decision considered in that case to be made by the Immigration Assessment Authority was of a nature which affected the individual interests of the applicant. The nature of the decision and statutory context was far removed and readily distinguishable from the circumstances of this case. The issue in CNY17 was not whether the statutory power was conditioned on the absence of apprehended bias. It was not in dispute that the bias rule applied to the Immigration Assessment Authority and the Minister and the Secretary of the relevant Commonwealth department. The issue in that case was, rather, whether the bias rule had been breached. Similarly, in Isbester v Knox City Council [2015] HCA 20; 255 CLR 135, it was accepted by the decision maker that it was required to comply with the rules of natural justice.
2. It might be said that, in the context of the decision to certify a plan, even if it is presumed that procedural fairness will apply, a fair minded observer, with knowledge of all of the relevant circumstances, would expect little more of the decision maker than the absence of personal interest, a willingness to give genuine and appropriate consideration to the application and that the matters required by law to be taken into account: compare the comments of Spigelman J in McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [47] referred to in Isbester at [27].
3. However, in my view, the exercise of the delegated power to certify a forest practices plan was not conditioned on observance of the principle of natural justice that the decision maker not be in a position of apprehended bias. The text and context of the legislation clearly exclude the implication that the exercise of power was so conditioned. Some repetition of my earlier references to the legislation is necessary. The Authority is part of the State Forest system. The objective of the system stated in Schedule 7 is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes. However that objective is to be achieved 'in a way that is as far as possible self-funding', 'an emphasis on self-regulation' and through 'delegated and decentralized approvals for forest practices plans and other forest practices matters.' The emphasis on self-regulation and delegated and decentralised approvals recognises and assumes the possibility of the conflict which I have identified. Systems which emphasise self-regulation inherently involve recognition of competing and not always consistent considerations and the potential for balancing conflicting interests I have already described. The earlier quoted passage from the manual issued by the Authority itself for forest practices officers recognises the same conflict. The statutory recognition of that proposition is confirmed by other provisions of the Act.
4. The Act recognises that the Authority and the Forest Practices Advisory council must balance competing interests. Both are required, the Authority by s 4D and the Council by s 37CA, to have regard to the wood supply obligations of the Forestry corporation under s 16 of the Act. In the case of the Authority that is so 'whilst not diminishing the ongoing application of the Forest Practices Code.' By s 4E the Authority must at least once in each financial year 'assess the degree to which the forest practices system is self-finding and self-regulating.' At the same time it must assess the implementation and effectiveness of a representative sample of forest practices plans, the clear inference being that the forest practices plans being reviewed are those which are the subject of self-regulation. The Authority's responsibility under s 4G to monitor and enforce compliance with the Act and Code is undertaken not only through the chief forest practices officer but through investigations conducted by forest practices officers.
5. Leaving aside delegated functions and powers, forest practices officers may also perform duties while balancing competing interests. Officers under s 38 may be employed by the Forestry corporation, by a body corporate which has an involvement in forest practices or any suitably qualified person. Officers may hold office in conjunction with any other office or appointment held by that person. In my view, the scheme of the Act overwhelmingly suggests, and is based on, a system in which forest practices officers perform their duties in respect to forest practices conducted by an employer of that officer. Forest practices officers have a concomitant duty to ensure and enforce compliance with the Act and the Code. The scheme allows for enforcement of compliance through creation of offences and penalties and through ongoing assessment of the system of self-regulation by the Authority and the Board.
6. The implication also arises from s 43 in relation to delegations. A body corporate required by s 27(1) to lodge a three year plan with the Authority is entitled, under s 38(2), to have at least one suitably qualified person appointed as an officer under that section. By s 43(2), the Authority is required to delegate to that person its functions and powers concerning forest practices plans. Delegates and forest practices officers are accountable to the Authority in the exercise of their functions.
7. These provisions, when viewed in the context and in light of the purpose of the Act and legislative scheme, lead overwhelmingly to the conclusion that it would be artificial and unnecessary for a person exercising the delegated power to certify a forest practices plan to avoid being in a position, or acting in a way, which creates the appearance of bias. The neutrality expected in a judicial or quasi-judicial decision is not required and the nature of the decision under consideration and its statutory context is far removed from such a circumstance. There is no statutory implication or condition on the exercise of the delegated power that the decision maker not be subject to an apprehension of bias. The challenge to the certifications on this basis is not made out."

1. In summary, the essential features of the appellant's written submissions were as follows:
   • "The rule against bias, including apprehended bias, 'fosters public confidence in decision-makers and their institutions' by 'enhancing the appearance and actuality of impartial decision-making'". [Footnote omitted.]
   • "The bias rule is one of the requirements of procedural fairness. As such, it gives rise to a common law principle of statutory interpretation: observance of procedural fairness (including the bias rule) is an implied condition of the exercise of jurisdiction (authority) to affect rights or interests by force of the statute, 'unless and to the extent that procedural fairness is clearly excluded by the statutory scheme'. To exclude procedural fairness, Parliament must use 'plain words of necessary intendment' - it must express its intention with 'irresistible clearness'". [Footnotes omitted.]
   • As the decision to certify, or otherwise, is a decision which affects "legal interest", the decision is "conditioned on compliance with the rules of procedural fairness, unless Parliament has clearly stated otherwise".
   • "Parliament has not, in plain words, excluded the bias rule as a condition on the power to make a decision under s 19(1). Therefore, the question is whether such an intention can be discerned to be "irresistible clearness" standard by an implication ("necessary intendment").
   • "Absent a clear statutory direction to the contrary, the legislature should be taken to have intended that the Authority will be, and appear to be, pursuing the object of the legislation, and not otherwise in any sense interested in the outcome".
   • The decision to certify or otherwise is a function Parliament has conferred on the Authority, the composition of which the legislature intended include a diverse range of expertise, together with a concern for "independence and impartiality". Directors are required to disclose conflicts of interest, and not to be present during any deliberation by the Board in relation to matters giving rise to such conflict. The legislature has applied the principles relating to fiduciaries to directors of the Authority's Board, including the bias rule.
   • If such principles apply to the decision-makers on the Board of the Authority, necessarily they apply to delegates exercising the powers of the Board. "The delegated power in the hands of the delegate is necessarily subject to the same conditions or limitations as the power in the hands of the delegator".
   • The application of the principles relating to apprehended bias are not effected by an "emphasis on self-regulation". While the Act contemplates that the authority, together with Officers and Forest Practices Officers will regulate the timber industry, there is a limited degree of "self-regulation" contemplated in relation to Forest Practices Officers by s 38(2). The written submission continued:

"28 By s 43(2), any person appointed as an FPO must receive a delegation from the Authority. This establishes a position where any organisation that is required to lodge a 'three year plan' under s 27 is, in effect, entitled to have at least one person in its employee appointed as an Officer, an FPO, and a delegate of the Authority. That is the extent to which the legislative design of the FP Act contemplates 'self-regulation'. Nothing in the FP Act authorises a delegate to certify a forest practices plan in respect of their own application. Thus, the type of 'self-regulation' created by the FP Act is not one which contemplates that a person may certify their own application for an FPP, noting that there is little practical difference between a person certifying their own application for an FPP and certifying an application by their employer. In any event, the relevant delegations were made under s 43(1)."

• Similarly, the application of the principle is not affected by the power of delegations. While the primary judge focused on the delegated power, which his Honour found was not conditioned on the observance of principles of natural justice, his Honour did not consider how the power of the authority conditioned by the bias rule could, by delegation, "be freed from that constraint".

1. In the context of the application of the principles of natural justice to decisions by the Authority, in written submissions the appellant advanced two examples. First, where a decision to certify is made by the Authority, Parliament must have intended that a Director would be excluded from considering an application for certification of a plan if the Director held a financial interest in the proposed timber harvesting operation. Secondly, if an application came before a Chief Forest Practices Officer, and the timber harvesting operation was to be carried out by a company of which the officer's brother was the managing director, and in respect of which profits would enter a family trust of which the officer was a beneficiary, Parliament could not have intended to exclude the apprehended bias rule which would preclude the Chief Forest Practices Officer from making a decision in such circumstances. The public confidence in the decision-making process would otherwise be seriously undermined.

1. The second respondent highlighted the statutory context and the absence of any effect upon the "rights, interests and expectations" of the appellant. In written submissions, after referring to various provisions of the Act, the second respondent advanced the following contentions:

"18 The following propositions are drawn from the above review of the Act:

(a) the forest practices system is to be self-funding with an emphasis on self - regulation;

(b) the system is to operate with delegated and decentralised approvals for FPPs consistent with the wide power of delegation in section 43;

(c) the Authority has the role of overseeing forest practices comply with FPPs - it must annually assess a sample of FPPs and report on them;

(d) the Authority has to report to the Minister;

(e) the chief forest practices officer has a central role in ensuring compliance;

(f) there is an obligation on persons responsible for forestry activities to report on compliance to the Authority;

(g) persons employed by the STT may be appointed by the Authority as officers;

(h) persons employed by a body corporate which has involvement in forest practices in Tasmania may be appointed by the Authority as officers;

(i) the Authority must appoint as officers persons nominated by a body corporate engaged in the industry who are required to lodge three-year plans;

(j) the Authority may by warrant authorise STT employees to be compliance officers;

(k) the Authority may by warrant authorise persons employed by a body corporate which has involvement in forest practices in Tasmania to be forest practices officers;

(l) the Authority must by warrant authorise the officer nominated by the body corporate required to lodge a three-year plan as a forest practices officer;

(m) persons appointed as officers may hold that office in conjunction with any other appointment.

1. The Act expressly contemplates that employees of STT (and other corporations) can act as officers and certify forest practices plans for their employers as part of the delegated and decentralised approval system which was intended to be self-regulating. Compliance with the Act cannot amount to bias, actual or apprehended.
2. Parliament could easily have made a contrary intention clear by the insertion of words to the effect that, a person delegated the power to certify FPPs is not to certify a plan applied for by an organisation which employs them."
3. As to the appellant's submission that through s 4A(1) the legislature was concerned to ensure a diverse range of expertise within the Board, and that conditions identified in Schedule 3 are "indicative of a concern for independence and impartiality", coupled with the requirement to disclose conflicts of interest, the second respondent pointed out that this submission was not made to the primary judge. In these circumstances, the second respondent urged that this Court should not permit the submission to be advanced on the appeal.
4. After referring to authorities which discourage appellate courts from permitting points not raised at trial to be advanced on an appeal, the second respondent pointed out that if the issue had been raised at trial, the second respondent "may have sought to adduce evidence including as to the industry, for the purpose of showing the context in which the Act was enacted was one where it would not have been practical for delegates employed by a harvesting organisation to recuse themselves from certifying their employer's plans."
5. In addition, the second respondent submitted that s 4A(6) and Schedule 3 have effect with respect to the Directors, but not delegates. The submission continued:

"The inclusion of a provision whereby directors of the Authority can determine conflicts arising from pecuniary interest demonstrates that Parliament considered the need for this in the workings of the Board of Directors but not in respect of the Authority's delegates. It is also significant that upon disclosure of a pecuniary conflict by a director, the other directors can determine whether the conflicted director can still take part in the relevant decision-making and that there is no blanket ban for that director."

1. In addition to the primary question as to the application of the rule against apprehended bias to the decision-making process, the written submissions of the first respondent questioned whether, in the particular circumstances, apprehended bias existed:

"29 The Act expressly contemplates that employees of STT (and other corporations) could act as certifying planning officers and certify forest practices plans for their employers as part of the delegated and decentralised approval system which was intended to be self-regulating. Compliance with the Act cannot amount to apprehended bias.

1. The particular circumstances tend against a finding of apprehended bias. Certifying officers were governed by the Forest Practices Officer Manual ('FPO Manual'), being a document produced by the Authority, which stresses that they must act impartially. It expressly contemplates that an employee of STT may be a forest practices officer and sets out the guidelines as to how that happens. It states that 'FPOs are expected to undertake their FPO duties at the same time as they are undertaking normal duties for their employer or client... the FPO has a separate responsibility under the Act to the FPA that may on occasions have the potential to conflict with the FPO's responsibilities to the employer or client'. While the Forest Practices Officer Manual does not have any statutory status, it is a document consistent with the framework established by the Act that contemplates a duality of role.
2. The FPPs were not assigned to the officers by STT, and there was no 'direction' from STT to certify any of those plans. There is no evidence of STT exerting any pressure on the delegates. Each delegate was to and did exercise his own independent judgment.
3. The scope of any duty owed in this case ought to be found to be 'an expectation that the decision maker will bring to the decision a willingness to give genuine and appropriate consideration to the application and the matters by law to be taken into account.' The evidence does not establish a breach of that duty."
4. As to whether apprehended bias existed, the written submissions for the third respondent emphasised that the certifiers had no financial interest in certifying the plans, and "their role as delegates of the Forest Practices Authority (ie to exercise powers under s 19(1) of the FP Act) was not in any way incompatible with their role as an employee of STT". The written submissions continued:

"30 The sorts of things identified by his Honour as to why it is that the statutory regime excluded the rule against bias is equally apposite for purposes of considering the role of Mr Johnstone and Mr Burn as repositories of s 19(1) power. They were obliged to ensure that the relevant forest practices plan contained a number of things - including '... specifications of the forest practices to be carried out on the land referred to In the plan in connection with the harvesting of timber or the clearing of trees ...' (s 18(2)(a)) (FP Act). They had to be '...in accordance with the Forest Practices Code as in force at the time the forest practices plan is prepared'. The point being that Messrs Johnstone and Burn could not simply rubber stamp any application for a plan; and their evidence clearly shows that they undertook a rigorous process of assessment of putative and proposed forest practices plans.

1. The Forest Practices Authority - and therefore any delegate such as Mr Johnstone and Mr Burn - is required by s 4B(2)(a) to '... act in all matters in a manner that (a) best advances the objective of the State's forest practices system'. As observed by his Honour, schedule 7 specifies the objective of that system, in its delivery, '... in a way is a far as possible self-funding' to have:

(a) An emphasis on self-regulation; and

(b) Planning before forest operations; and

(c) Delegated and decentralised approvals for Forest Practices Plans...

1. It is submitted that consideration of these things is such that a fair-minded lay observer would not reasonably apprehend that Mr Johnstone and Mr Burn might not bring an impartial mind to determining the applications made for certification of the respective forest practices plans."

1. In the context of the statutory scheme and issues raised at trial and on appeal, it is necessary to consider the question of the appellant's standing to bring the proceedings. This issue was argued before the trial judge, but his Honour determined it was unnecessary to make a finding in that regard because of his view that the absence of apprehended bias was not a condition of the exercise of the power to certify. His Honour said:

"63 A good deal of time was devoted by the applicant to submissions about whether the applicant had standing to bring these proceedings. The applicant is a non-profit community association run by volunteers. It was established as an unincorporated association in about 2016 and was incorporated on 14 August 2020. It has no assets of substance. On incorporation the constitution provided for a chair, secretary, public officer and treasurer as elected officers who, with between two and four other members would constitute the executive. Membership of the association was 'open to those with a demonstrated interest in the protection of native forests in north east Tasmania, and the creation of a North East Tasmania Gondwana National Park.' The constitution also provided that new members 'must be nominated by an association member and be approved by the Executive.' The objects of the association included to 'promote and advocate for the creation of a North East Tasmania Gondwana National Park', to 'publicise and promote the protection of native forests and the preservation and enhancement of ecological diversity', to 'work cooperatively with government, industry and the general community to achieve sustainable and integrated natural resource management outcomes' and to 'undertake other activities that are consistent with best practice principles of sustainable natural resource management, forest protection and the creation of a North East Tasmania Gondwana National Park.'

1. In pursuit of its objectives, prior to 2022, members and officers of the association carried out surveys of threatened species in and around Derby, corresponded with members of Parliament and government entities and enterprises including STT, conducted community activities and communications and maintained a social media presence. At the relevant time the public officer and treasurer of the applicant was Louise Morris. Her affidavit evidence was that she had been involved in the protection of forests since 1997 through various other organisations including the Wilderness Society Inc. She had been monitoring the areas which are the subject of these proceedings since early 2021. She deposed that by the time the proceedings were commenced, the logging in the area of 42.8 ha called coupe CC119A was completed and the logging in the area of 37 ha called coupe CC105A was well underway.
2. Ms Morris deposed that on about 31 March 2021 she sought and obtained legal advice to bring these proceedings when she became aware of potential 'legal problems with the logging operation' and that 'validating legislation was being considered by the government'. The evidence establishes that those logging operations conducted by STT ceased as a result of the interlocutory order made on 11 April 2022.
3. It can be stated in the clearest terms without a need for further reasons that the applicant has no interest which would entitle it to standing concerning the decision of the Authority to appoint a person as a forest practices officer or delegate. The applicant does not submit to the contrary. What is in issue in these proceedings is the decision of a delegate of the Authority to certify the forest practices plans. However the issue of standing need not be wrestled with because the determinative issue in this case is not whether there exists any apprehended bias, or whether the applicant has standing to bring proceedings. The issue of standing does not fall to be determined unless the basis of the application for relief is established. The determinative issue is whether the absence of apprehended bias is a condition, either implied as a matter of statutory construction or by the common law, of the exercise of the power of a delegate to certify. I have concluded that such an implication is clearly excluded by the terms of the Act when construed having regard to their context and legislative purpose."
4. A later passage in the reasons of the trial judge is also relevant to the question of standing:

"73 In my view the interests of the applicant are not apt to be affected by the relevant decisions in a way which is substantially different from the way in which the decisions are apt to affect the interests of the public at large. I do not see that the Authority or its delegate was, in making the decision to certify, bound or entitled to have regard to the interest of the applicant or to extend procedural fairness to it in the making of the relevant decision. There is no legislative intent discernible that the delegate should be bound by the principles of natural justice in favour of the applicant."

1. The third respondent addressed brief written submission to this issue highlighting the "novelty" of the circumstances:

"8 In order to be successful upon the appeal it is necessary for the appellant to demonstrate that it had standing for purposes of prosecuting the originating application. The third respondent did not concede that the appellant had standing and made no submissions to the learned primary Judge about that issue; but the second respondent made lengthy submissions to the effect that the appellant had no standing.

1. This honourable Court could determine that issue; and likewise that which is raised by ground 2(b). Alternatively, it could, if the appellant is successful upon ground 1 and 2(b) remit the two undetermined issues - standing and apprehended bias - to the learned primary Judge for determination.
2. Putting to one side those issues, the novelty of this case lies in the fact that if the appellant has standing, it is challenging the decisions even though it had no entitlement to be heard by the decision makers (i.e. Mr Johnstone and Mr Burn) before they made the decisions. As his Honour observed:

[68] ...It is not contended by the applicant that it had a right to be heard in relation to the decision to certify the forest practices plans... The applicant had no such right. There is nothing in the legislation which recognises or suggests that a person in the applicant's position had any part to play in that decision or was a person to whom the rules of natural justice would apply.

1. Hence the curious position (if the applicant has standing) that whilst it was not 'a person to which the rules of natural justice ... apply' it nonetheless seeks to invoke one of those rules - the rule against bias - to have the decisions to certify the forest practices plans set to nought." (Footnotes omitted.)
2. The second respondent urged that the appellant is not a person aggrieved for the purposes of s 17(1) of the Judicial Review Act because it is not "a person whose interests are adversely affected by the decision": s 7(1)(a). In particular, the appellant will not suffer a "grievance" as a result of the decisions "beyond that which he or should has as an ordinary member of the public". [5]
3. The second respondent also relied upon a passage from the judgment of Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 71 ALR 73 at 82 that "there flows from the decision ... a danger and peril to the interest of the applicant that is clear and imminent rather than remote, indirect or fanciful, and the applicant has an interest in the matter of an intensity and degree well above that of an ordinary member of the public".
4. After referring to authorities in the context of environmental issues, the second respondent advanced the following written submissions:

"57 The appellant is not a person aggrieved for the purposes of Judicial Review Act nor entitled to relief in the nature of certiorari in respect of the decisions to certify the FPPs.

1. The appellant contends that it is sufficiently interested to obtain the relief it claims because it has 'engaged in substantial 'active use' of that forest, including through research, community engagement and political engagement and advocacy'.
2. In this case the appellant was incorporated on 14 August 2020 (Ms Morris' affidavit of 8 April 2022 at LM-1). These proceedings were commenced on 8 April 2022. Whilst Ms Morris says that Blue Derby Wild was active as an unincorporated association since 2016 (affidavit of 8 April 2022 at [2]) there is no evidence as to the degree of the formality of the unincorporated association nor as to its activities.
3. The scale of the appellant is very modest as demonstrated by its financial statement for 20020/2021 (Weeding affidavit of 29 April 2022 at SW-6). It is run by volunteers (Ms Morris' affidavit of 8 April 2022 at [2]). No membership details have been provided. There is minimal evidence as to the applicant's engagement with the community of Derby. There is no suggestion of any endangered species at risk from the activity in question here. The harvesting of the relevant land is substantially complete.
4. The appellant has no role within the statutory scheme in question. It was not engaged in the design of the regulatory prescriptions. It has not received funding from government.
5. The evidence of the appellant's activities falls well short of the evidence in Kinglake Friends of the Forest, where there was evidence of specific activities including
   • spotlighting nights;
   • public meetings;
   • banner painting afternoon with a special wildlife painter assisting participants to make a series of banners raising awareness of the forests, their wildlife, and the need to protect them;
   • organising rallies and tours including for parliamentarians;
   • specific evidence of surveys over a two-year period of habitat trees and endangered species in particular coupes;
   • arranging reports from qualified experts in relation to fire hazard in a particular coupe;
   • fifteen separate occasions of Kinglake reporting breaches of the applicable regulatory framework.
   • receipt of grants to support greater glider detection activities;
   • a letter of support from a local council, in recognition of its work of advocating for the protection of the greater glider population; and
   • commencement of earlier court proceedings against VicForests alleging over harvesting of bushfire management zones.
6. The trial judge [in Kinglake] (whose judgment was upheld on appeal) placed particular emphasis on the wildlife spotting nights, the forest surveys, the events it had organised for its members and other people interested in the forests, community engagement and education, and notifying the regulator of a large number of instances of alleged over harvesting throughout the central highlands."[6]
7. The appellant also relied upon the decision in Kinglake to support its case for standing. In written submissions the appellant contended:

"47 The discussion by the Victorian Court of Appeal is most analogous to the present case, and may be summarised as follows.

47.1 In public interest cases, where the litigation concerns judicial review of administrative action, there may well be many people affected by the action. The search for a 'special interest' to establish standing requires more than that a person is affected by a decision.

47.2 In environmental cases, 'active users' of the forest in which logging is to occur are likely to have a special interest.

47.3 Active use of the forest may include 'scientific investigation and the development of knowledge about the natural world, and for the enjoyment of nature, which is a fundamental human impulse' (at [75]).

47.4 A distinction may be drawn between holding beliefs (or having an emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a 'special interest'. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an 'intermeddler', 'crank' or 'busy body' (at [76]).

1. In short, the appellant is sufficiently interested in logging at the two coupes in question because it has engaged in substantial 'active use' of that forest, including through research, community engagement, and political engagement and advocacy. This is set out in affidavit evidence filed at trial. This places the appellant well and truly outside the general member of the public."

1. The appellant did not challenge the summary of the relevant evidence cited earlier in these reasons. It is appropriate, however, to add the following observations. First, for the purposes of standing, it is the appellant, an incorporated body, who must be "aggrieved", not others in their personal capacities, including officers or members of the appellant. In this respect, the evidence is significantly inadequate.
2. Ms Louise Morris is the public officer and treasurer of the appellant. She has been involved in the protection of Australia's native forests since 1997 in capacities such as campaigner with the Wilderness Society Inc, campaign advisor to then Senator Christine Milne, campaign manager for Markets for Change Inc and co-ordinator of the Forests Free Speech Campaign in response to the Gunns 20 litigation. In her affidavit of 8 April 2022, Ms Morris did not state when she became involved with the appellant, or its predecessor association.
3. According to Ms Morris, "Blue Derby Wild" was active as an unincorporated association from 2016, under the name "Blue Derby Wild", and was incorporated on 14 August 2020. Throughout her affidavit, Ms Morris spoke of the activities of "Blue Derby Wild", which the affidavit stated in paragraph 1 was a reference to "Blue Derby Wild Inc". However, in stating that "since its inception, Blue Derby Wild has engaged in the following activities ...", she did not distinguish between the unincorporated association, which she stated was active since 2016, and the incorporated body which is the appellant.
4. Ms Morris stated that "Blue Derby Wild is a community based, non-profit association run by volunteers". The affidavit does not identify specific activities undertaken by the unincorporated association, as opposed to activities undertaken by the appellant following incorporation of 14 August 2020. No information is provided as to the membership of the unincorporated association or its financial position.
5. The certificate of incorporation identifies four public officers, including Ms Morris. The constitution states that there shall be an "elected management group", known as the Executive, but no information is provided by Ms Morris as to whether such a group has been elected. Clause 6 of the constitution provides that membership "shall be equitably representative of community, business and government stakeholders involved in advocating for the protection of native forests and creation of NETGNP", a reference to a proposed North East Tasmania Gondwana National Park. Clause 3 provides that one of the objectives of the association is to promote and advocate for the creation of such a national park.
6. Clause 6 provides that membership is also open to those with a "demonstrated interest in the protection of native forests in North East Tasmania, and the creation of the national park. New members must be nominated by an association member and approved by the Executive."
7. The affidavit of Ms Morris did not provide any information as to membership of the appellant. Nor did the affidavit provide any information concerning the financial position of the appellant since its incorporation in August 2020.
8. Ms Morris deposed to activities undertaken by "Blue Derby Wild", without distinguishing between the unincorporated association and the appellant. No minutes of meetings of the appellant or its Executive were provided by Ms Morris to evidence decisions by the appellant to undertake any of the activities identified in the affidavit. Although Ms Morris deposed that a reference in her affidavit to "Blue Derby Wild" is a reference to Blue Derby Wild Inc, I am far from satisfied that the activities of which Ms Morris spoke were the activities of the appellant, as opposed to individual members or supporters of the appellant's cause in their personal capacities. Ms Morris did not say the activities were undertaken with the authority, and on behalf of, the appellant.
9. Ms Morris deposed that since at least February 2021, she has personally monitored the areas of logging under consideration. However, there is no evidence that her activity in this regard was an activity of the appellant. Similarly, Ms Morris deposed to having published, or caused to be published, evidence of the logging, but there is no evidence to establish that this activity was an activity authorised to be undertaken on behalf of the appellant.
10. These observations can be applied to all the activities of which Ms Morris deposed in her affidavit. Simply put, there is no evidence as to whether the various activities were undertaken by persons in their personal capacity, or whether the activities were authorised by the appellant to be conducted on behalf of the appellant. References on social media, and other forms of media, and in correspondence over the years, have consistently used the name "Blue Derby Wild", but the link to the appellant is absent.
11. The only information provided by Ms Morris as to decisions made by the appellant is her statement that on 7 April 2022 the appellant resolved to bring these proceedings.
12. As to the actual activities, it is readily apparent that, over a number of years, using the name "Blue Derby Wild" persons have been active on social media with respect to environmental issues generally and, in particular, in connection with the protection of the forests and animal species in the Derby area. In the name of "Blue Derby Wild", persons have actively lobbied against logging in the north of the State through social media, newspaper and radio interviews, and releases and correspondence with politicians.
13. Ms Morris deposed that "Blue Derby Wild" has carried out "many threatened species surveys in forest near Derby in North East Tasmania". No details are provided as to the number, nature and content of those surveys.

1. It is common ground that the decisions in question to certify the plans were decisions to which the Judicial Review Act applies. Section 17 of that Act provides that a person who is "aggrieved" by a decision may apply to the court for order of review relating to the decision. One of the grounds on which such an application may be made is a breach of the rules of natural justice in the making of the decision.
2. Section 7 provides the meaning of "person aggrieved" as "a person whose interests are adversely effected by the decision."
3. To the extent that the appellant also sought an order in the nature of certiorari quashing the certifications, for the purposes of standing it is sufficient to observe that if the appellant does not have standing to pursue the application under the Judicial Review Act, inevitably the application for certiorari would fail.
4. As mentioned, both parties rely upon the helpful decision of the Victorian Court of Appeal in VicForests v Kinglake Friends of the Forest (above). The court was concerned with a finding by the trial judge that the plaintiff corporation possessed standing to bring proceedings seeking to restrain logging operations by the defendant.
5. The court analysed a number of authorities, highlighting how the weight to be afforded to numerous factors varies according to the particular circumstances, including the nature of the power being exercised. For present purposes, of particular relevance is the general observation that "the standing rule based on a 'special interest', focuses on the relative position of the plaintiff when compared with the broader population" [29].
6. After analysing a number of authorities, the court identified relevant points emerging from the decisions of the High Court in Australian Conservation Foundation v the Commonwealth [1980] HCA 53, 146 CLR 493 and Onus v Alcoa of Australia Ltd [1981] HCA 50, 149 CLR 27 at [60]:

"60 A number of points emerge from ACF and Onus:

(a) A plaintiff must show a special interest in the subject matter of the litigation;

(b) The need for a special interest reflects the need to show an interest or a position that is different from the public at large;

(c) The concept of 'interest' is not limited to proprietary, business or economic interests;

(d) The need for the interest to be special or different is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest in the subject matter must be more than merely emotional or intellectual;

(e) The subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important."

1. In considering other authorities, the court also noted, as an important aspect of the reasoning in ACF, that the application of the special interest test is "fact and context specific", including the statutory context.
2. Noting that the plaintiff was not a participant in the relevant regulatory regime, and that it sought "to restrain the removal of particular trees in the forest, on the basis that their removal breaches the express prescription", the court observed that the plaintiff was involved in the Kinglake area and the Central Highlands [69] as evidenced by the following activities:

"(a) organising multiple public events, including wildlife spotlighting nights, public meetings, forest habitat tree surveys, and a banner painting afternoon;

(b) co-hosting and co-organising events in conjunction with other organisations, including several rallies, a public forest tour, and a forest recovery picnic;

(c) arranging tours for parliamentarians to promote the cause for protection of Central Highlands state forests from logging;

(d) boosting media coverage of the case for stopping logging of the Central Highlands state forests;

(e) maintaining a Facebook media presence advocating for the protection of the Central Highlands state forests;

(f) carrying out five flora and fauna surveys in various logging coupes in Central Highlands state forests;

(g) preparing and lodging seven separate submissions in relation to logging in the Central Highlands to government, supervisory bodies, and VicForests;

(h) arranging for an expert report to be prepared by a Canadian academic assessing the fire hazards in a Central Highlands logging coupe;

(i) researching, preparing and lodging 18 breach reports in relation to VicForests' logging activities in the Central Highlands with the Department of Land, Water and Planning ('DELWP');

(j) receipt of two grants from the Field Naturalists Club of Victoria to support the plaintiff's Greater Glider detection activities;

(k) presentation of a petition signed by 633 petitioners to the Victorian Legislative Council seeking cessation of logging in the Central Highlands state forests by July 2020;

(l) receipt of a letter of support from Murrindindi Shire Council, in recognition of the plaintiff's work advocating for protection of the Greater Glider population; and

(m) conducting court proceedings (S ECI 2020 04058) against VicForests on 26 October 2020, alleging overharvesting of bushfire moderation zones in various locations in the Central Highlands state forests."

1. Dealing with the defendant's submission that the involvement of the plaintiff was "no more than evidence of its strongly held views or opinions", the court addressed the nature of the interest held by the plaintiff [75]-[78]:

1. It is apparent from the activities described in paragraph 69 that Kinglake FF is an active user of the Central Highlands forests in that it seeks not only to agitate to preserve them, but to foster the understanding and enjoyment of them by its members and by the local and wider community. Its activities and position in the local community are similar to those of EEG in Brown Mountain. The forests of the Central Highlands are a locus of scientific investigation and the development of knowledge about the natural world, and for the enjoyment of nature, which is a fundamental human impulse. In this sense, they are a resource for Kinglake FF as much as they are for VicForests. A breach of the regulatory controls designed to balance the competing demands on the forests can therefore be said to involve a disadvantage to Kinglake FF that gives rise to more than a sense of grievance.
2. In this context, a distinction may be drawn between merely holding beliefs (or having a mere emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a 'special interest' in securing compliance with regulatory requirements. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an 'intermeddler', 'crank' or 'busy body'. It may allay concerns that the entity will not be in a position to carry through the litigation. In this context, the distinction between beliefs and action is both logical and coherent, and consistent with the purpose of the standing rule.
3. On the facts, Kinglake FF has demonstrated a commitment to the specific environment that it alleges is subject to unlawful logging operations. By its proceeding it seeks to restrain those operations.
4. The judge placed particular emphasis on the wildlife spotting nights and forest surveys conducted by Kinglake FF, and the events it has organised for its members and other people interested in the forests. She regarded community engagement and education as significant, and noted that Kinglake FF had directed considerable effort towards its 'mission' of preserving the State forests of the Central Highlands, notifying the Office of Conservation Regulator of a large number of instances of alleged overharvesting by VicForests throughout the Central Highlands. In our view, these were all matters on which the judge was entitled to place particular weight. Having regard to the nature and extent of these activities, there is a demonstrated interest in the protection of the environment in the Central Highlands that is qualitatively different from the interest of ordinary members of the public."
5. In drawing a distinction between the circumstances in ACF, and those the court was considering, the court made the following observations [83]:

"The distinction lies in Kinglake FF's concentration of effort in and commitment to preservation, understanding and enjoyment of the Central Highlands native forests, which underscores its interest in the subject matter of the proceeding, which itself is quite specific."

1. The court then emphasised that the distinction to which it was referring did not "signal the application of a different test", but was a recognition that "context is critical". Emphasising that the matters relied upon to establish standing "relate back to the specific issues in the litigation", the court observed that, depending on the context, in the matter under consideration it might be accurate to describe those issues "as involving the protection of the environment in the Central Highlands, the preservation of trees in the Central Highlands forests, the lawfulness of logging in that area, or the alleged non-compliance with the specific prescription relating to buffers." [84]. Further, the court observed that the issue in the proceeding could be expressed "more generally" as whether there had been "compliance with environmental prescriptions and the lawfulness of certain tree removal operations in the Kinglake and Central Highlands forests."
2. In the context of a regulatory regime described by the court as imposing "multiple requirements at varying degrees of specificity", and a central issue in the litigation being the lawfulness, but not the merits, of proposed logging operations, the court was of the view that the proceedings were "directly related to Kinglake FF's special interest in preserving the native forests of the Central Highlands [90]. Further at [91]:

"In the present context, the prohibitions are direct, mandatory and informed by the protection of threatened species. There is a close connection between the work of Kinglake FF outside of the litigation and the issues in dispute."

1. In reaching its conclusion that the plaintiff had standing, the court accepted a submission of the plaintiff at [94]:

"In this case, Kinglake FF contends that the relevant logging operations will result in the unlawful destruction of part of the forest environment. Should it succeed in obtaining the relief it seeks, it will have gained an advantage (or perhaps not suffered an unlawfully imposed disadvantage), in respect of the particular forest to which it is connected - that is, the forest's preservation. Achieving such an outcome would be consistent with the observations of Gibbs J in ACF."

1. Niall JA was a member of the court in Kinglake. Subsequently his Honour delivered a judgment in Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824 in which the plaintiff, an incorporated association, sought declaratory and injunctive relief in respect of forestry operations conducted by the defendant. The plaintiff contended such operations were unlawful.
2. Against the background of extensive activities of members of the plaintiff who, personally, possessed a special interest in the subject matter of the proceedings, and in the context of incorporation of the plaintiff six days before it commenced the proceedings, Niall J found that the plaintiff did not have standing to bring the proceedings. The following passages in his Honour's judgment are of direct relevance to the position of the appellant [48]-[65]:

"48 A critical focus of the inquiry is on the nature and extent of the relationship between the putative plaintiff and the subject matter of the litigation. Because the nature of the interests that may support standing do not depend on the existence of legally enforceable rights, a plaintiff does not need to show a proprietary, business or economic interest that is liable to be affected. That point is amply illustrated by the decision of the High Court in Onus, where the plaintiffs had a deep cultural and spiritual connection to the Aboriginal relics that were threatened by a proposed development.

1. In assessing the standing of a body corporate it will be necessary to have regard to a range of matters, including its constituent documents as well as other matters, such as its purpose, activities, and scale. In making this evaluative assessment it is unwise to draw inflexible rules as to what is and is not relevant.
2. One thing that emerges clearly from ACF is that standing is not established merely because a person or entity sets out to be involved in the subject matter, even if that desire is born from a deep emotional or intellectual concern. In this sense, a statement of corporate purpose or objective is little different to an exclamation by an individual that they are intent on being involved in a particular issue and wish to vindicate their proclaimed interest. In ACF, Gibbs J expressed the point in this way:

A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position.

1. In ACF, Gibbs J also made the point that a corporation does not acquire standing because some of its members possess it. The plaintiff submits that his Honour was not addressing himself to the situation in which all of the members of an incorporated body have standing and that it may be inferred that such a body would be viewed differently. I do not agree. As I read that part of the reasons for judgment, Gibbs J was making the point that the issue is the standing of the plaintiff based on its conduct, activities, and relationship and that this is not merely a derivative status derived from the position of its members or corporators.
2. The fact that a corporation, including an incorporated association, has a separate and distinct legal identity from its members is an important and related part of the context in which to assess the entity's standing with respect to particular litigation. It serves to emphasise that it is the relative position of the plaintiff, as a separate juristic entity, that is critical. However, it does not follow, as the defendant would have it, that the activities and interests of the members, including those that occurred pre-incorporation are necessarily irrelevant.
3. The activities of individual members of an organisation post-incorporation, at least when conducted as a member, may be attributed to the organisation in a variety of contexts. If the member is acting as an agent of the entity or with its authority, the entity may be liable under the principles of agency or in accordance with usual rules of attribution where a body corporate acts through individuals. But the present issue is not the ascertainment of legal responsibility for the conduct of members. Rather, it is necessary to ascertain the nature of the relationship between the entity and the subject matter and there is no reason why the conduct of its members is irrelevant.
4. The issue is more nuanced in the case of pre-incorporation conduct. I am not persuaded that such conduct is always irrelevant. For example, the Act provides for the incorporation of a pre-existing unincorporated association. Before incorporation, such an association has no separate legal existence that is independent from its members. However, as a group of individuals the association may have a collective identity and have engaged in conduct as a collective for the purpose of common endeavour. In doing so, the group of individuals may have a connection with a particular subject matter and have engaged in activities and conduct to express their collective concern or involvement. I see no reason why that conduct must be ignored when assessing standing of the incorporated entity.
5. That approach accords with Helena, where the predecessor association had been formed in the 1950s and was formalised by a constitution in the early 1970s. On incorporation, a new legal entity was created, but as Ipp J observed, the history showed a representative body of long standing. In such cases, I can see no reason to ignore that history in evaluating the connection of the body once incorporated. That holds true even though the new body may have no legal responsibility for the conduct that occurred before incorporation.
6. On the other hand, I cannot accept the plaintiff's submission that the broad fact specific approach to standing, mandated by the authorities, means that all of the conduct of the individual members should be taken to be the conduct of the plaintiff by means of some rule of attribution. The plaintiff's resort to an assessment of its 'character' based on its 'culture, identity or intentions' is, in practical terms, very similar to the case advanced and rejected in ACF. It amounts to a willingness and capacity to engage with the subject matter, rather than an established connection based on its own conduct and activities.
7. As the Court of Appeal explained in Kinglake:

'... a distinction may be drawn between merely holding beliefs (or having a mere emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a 'special interest' in securing compliance with regulatory requirements. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an 'intermeddler', 'crank' or 'busy body'. It may allay concerns that the entity will not be in a position to carry through the litigation. In this context, the distinction between beliefs and action is both logical and coherent, and consistent with the purpose of the standing rule.'

1. That distinction breaks down if the plaintiff is able to rely not on its own conduct but solely on that of third parties even where those other parties are members of the association.
2. In this case, the plaintiff is frank that its case for standing is based on a combination of the position of its members and its object. Although the Act requires that there exist an association before incorporation, there is no evidence here that the association that was incorporated on registration had any degree of formality, undertook any activities, or even had an informal structure beyond the nominal existence of an association coming together for the first time and for the purpose of incorporation. The defendant takes no issue with the validity of the association and the process of incorporation but says that the plaintiff cannot point to any pre-incorporation activity or cohesion that would be relevant to its current standing.
3. At its highest, the plaintiff is an association of like-minded individuals each with an interest in the preservation and protection of the local environment and in particular in the Jack and Albert River catchment area. The individual members of the plaintiff have been involved through various groups including the JARR and the YYLN, but the facts do not suggest that the plaintiff is the new embodiment of these pre-existing unincorporated associations.
4. The agreed facts show that their interest is deep and long standing and has been manifested in their activities and personal investment in their local environment. The standing of the individual members to bring an action of the kind now before the Court was not seriously put in doubt by the defendant. Although the activities undertaken by the individuals had much in common, it cannot be said that they were undertaken as part of a group that now manifests itself in the incorporated body of the plaintiff. They cannot meaningfully be said to belong to or be associated with the plaintiff.
5. The experience, aptitude, and involvement in environmental work of the members of the plaintiff, together with its object, amply show that the plaintiff has the purpose of protecting the local environment and the capacity to do so effectively. However, at the point of incorporation, and a short time later when it commenced this proceeding, this capacity had not yet manifested itself in any activities or conduct by the incorporated entity. It seems to me that in the light of ACF this is insufficient. I do not regard it as consistent with the authorities that the entity be treated as and from its commencement as possessing all the relevant attributes of its members for the purpose of determining its connection with the subject matter of the litigation. In those cases, such as Helena and Manuka, the plaintiff could rely on more than the activity of its members. The plaintiff cannot. Although each case depends on its own facts and statutory context, the approach I favour is consistent with the approach taken by Richards J in The People of the Small Town of Hawkesdale Inc v Minister for Planning. As was the case in that decision, there is no evidence of any activity by the plaintiff to represent its members' interests or pursue its object, other than its commencement and pursuit of this proceeding.
6. Although I am unable to conclude that the plaintiff is, in effect, a single purpose vehicle for the conduct of the proceeding, the fact that in its very short existence the litigation is the only conduct of the plaintiff shows its connection with the subject matter is confined to bringing the action. I infer that this particular litigation is a significant reason for the incorporation of the plaintiff. And, as a matter of both logic and precedent, the fact that the plaintiff has commenced the litigation is not evidence of its interest in the subject matter that independently supports standing. An entity does not have standing to bring a proceeding merely because it has commenced the proceeding.
7. Although one may infer that a reason that the litigation is conducted through a corporate vehicle is to protect the individuals against the risk of any exposure to costs, ultimately I am not persuaded that this is of much significance on the question of standing. The decision of the plaintiff to commence the litigation was not improper and should not be seen as some nefarious or underhanded manoeuvre.
8. It may be accepted that rules as to standing are designed to ensure that the plaintiff has a proper interest in the litigation and the controversy is a real one. However, the interest that must be demonstrated should not depend on the size of cash reserves or the holding of assets. The Court has available in its armoury a number of means to prevent unfairness or injustice to an opposing party by reason of the impecuniosity of a corporate plaintiff, including security for costs, cost caps, and orders against non-parties. In the ordinary case, the fact that the plaintiff is incorporated and without substantial assets may say little if anything about standing."

1. Unlike the plaintiff in Binginwarri, the appellant was incorporated a little over two years before instituting the proceedings. However, as the earlier summary demonstrates, there is a paucity of evidence as to the activities of the appellant, as opposed to individual members and supporters in their personal capacities. While the activities of such individuals remain relevant, as Niall J pointed out, the position of the appellant as a "separate juristic entity" is important, and it is necessary to "ascertain the nature of the relationship" between the appellant and the subject matter. In the context of the statutory scheme, what is the special interest of the respondent in the subject matter?
2. Pursuant to the Forest Management Act, the respondent is the Forest Manager for timber production land zoned accordingly, with the following functions identified in s 8 of that Act:

"(a) To manage and control all permanent timber production zone land;

(b) To undertake forest operations on permanent timber production zone land for the purpose of selling forest products:

(c) Such other functions as are approved in writing by the Minister and the Treasurer."

1. Section 9 provides that the Forest Manager has such powers as are necessary to enable it to perform its functions. Section 15 directs that the Forest Manager must perform its functions in a manner that is "consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests."
2. As Forest Manager, the respondent is required to make timber available to the veneer and sawmilling industries. Section 16 of the Forest Management Act directs that each year the Forest Manager must make available, for those industries, "a minimum aggregate quantity of eucalypt veneer logs and eucalypt sawlogs, from permanent timber production zone land, that meets the prescribed specifications that are in force immediately before the commencement of this Act", and other prescribed timber for a prescribed industry in prescribed quantities.
3. As discussed by the trial judge, it would be unlawful for the respondent to seek to comply with its obligations by harvesting timber unless the harvesting is authorised by a certified forest practices plan pursuant to the Act. Such a plan must be approved by the Authority or a properly authorised delegate of the Authority. The respondent is required to prepare a plan and present it for certification. The legislation does not provide for a role by the appellants, or anyone else, in the preparation of the forest practices plan.
4. Similarly, the legislative scheme does not provide for a role by anyone other than the owner of the land in the assessment of the forest practices plan prior to lodging the application with the Authority (or delegate). The application for certification of a plan must be accompanied by a memorandum in writing signed by the owner of the land stating that the owner has given approval for the plan to be submitted to the Authority (s 18(4)(b)). The appellant has no involvement in that process, and is not entitled to any input at any stage of the process.
5. Only the applicant for certification of a forest practices plan may appeal against the decision of the Authority (or delegate) to the Tasmanian Civil and Administrative Tribunal (s 25).
6. It is clear from the statutory scheme that the appellant does not possess any "interest" which would entitle it to participate in any stage of the process. It is not entitled to have any input into the preparation of the plan or its presentation to the Authority (or delegate). It is not entitled to any input into the decision-making process, or to undertake an appeal with respect to the decision of the Authority (or delegate).
7. It is in this context that the subject matter of the litigation is to be considered. It does not involve the merits of the plans. It does not involve the lawfulness of logging pursuant to the approved plans.
8. The subject matter is not related to the qualifications or expertise of the persons certifying the plans to undertake that task. Nor does it concern the merits of the plans and whether they comply with the Act and regulations.
9. Unlike the proceedings in Kinglake, the appellant's proceedings are not concerned with the lawfulness of the logging which would occur pursuant to the plans. It is not concerned with the wisdom or otherwise of such logging from the point of view of legality and/or environmental considerations. In this respect, the subject matter is well removed from the subject matter in Kinglake where the "central issued raised by the litigation" was the "lawfulness - and not the merits - of proposed logging operations" [85].
10. Of course, ultimately the aim of the appellant is to stop the logging operations. However, that aim does not translate into a special interest in the subject matter of the litigation, namely, whether apprehended bias existed with respect to the delegates who certified the plans, and whether the exercise of the power to certify the plans was conditioned upon compliance with a rule against apprehended bias.
11. In my view the appellant does not possess a relevant interest. The appellant is not "a person aggrieved". Even if the issue had been the lawfulness of the logging, the circumstances are well removed from those identified in Kinglake and the evidence is lacking with respect to the "interest" of the appellant, as opposed to persons who support the broad cause of environmental protection and the prevention of logging.
12. For these reasons, the appellant lacks standing to bring the proceedings.

1. Even if the appellant had standing to bring the proceedings, in my view the trial judge was correct in finding that the exercise of the power to certify the plans was not conditioned on the absence of apprehended bias. I can do no better than repeat the relevant paragraphs of his Honour's reasons:

"74 It might be said that, in the context of the decision to certify a plan, even if it is presumed that procedural fairness will apply, a fair minded observer, with knowledge of all of the relevant circumstances, would expect little more of the decision maker than the absence of personal interest, a willingness to give genuine and appropriate consideration to the application and that the matters required by law to be taken into account: compare the comments of Spigelman J in McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [47] referred to in Isbester at [27].

1. However, in my view, the exercise of the delegated power to certify a forest practices plan was not conditioned on observance of the principle of natural justice that the decision maker not be in a position of apprehended bias. The text and context of the legislation clearly exclude the implication that the exercise of power was so conditioned. Some repetition of my earlier references to the legislation is necessary. The Authority is part of the State Forest system. The objective of the system stated in Schedule 7 is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes. However that objective is to be achieved 'in a way that is as far as possible self-funding', 'an emphasis on self-regulation' and through 'delegated and decentralized approvals for forest practices plans and other forest practices matters.' The emphasis on self-regulation and delegated and decentralised approvals recognises and assumes the possibility of the conflict which I have identified. Systems which emphasise self-regulation inherently involve recognition of competing and not always consistent considerations and the potential for balancing conflicting interests I have already described. The earlier quoted passage from the manual issued by the Authority itself for forest practices officers recognises the same conflict. The statutory recognition of that proposition is confirmed by other provisions of the Act.
2. The Act recognises that the Authority and the Forest Practices Advisory council must balance competing interests. Both are required, the Authority by s 4D and the Council by s 37CA, to have regard to the wood supply obligations of the Forestry corporation under s 16 of the Act. In the case of the Authority that is so 'whilst not diminishing the ongoing application of the Forest Practices Code.' By s 4E the Authority must at least once in each financial year 'assess the degree to which the forest practices system is self-finding and self-regulating.' At the same time it must assess the implementation and effectiveness of a representative sample of forest practices plans, the clear inference being that the forest practices plans being reviewed are those which are the subject of self-regulation. The Authority's responsibility under s 4G to monitor and enforce compliance with the Act and Code is undertaken not only through the chief forest practices officer but through investigations conducted by forest practices officers.
3. Leaving aside delegated functions and powers, forest practices officers may also perform duties while balancing competing interests. Officers under s 38 may be employed by the Forestry corporation, by a body corporate which has an involvement in forest practices or any suitably qualified person. Officers may hold office in conjunction with any other office or appointment held by that person. In my view, the scheme of the Act overwhelmingly suggests, and is based on, a system in which forest practices officers perform their duties in respect to forest practices conducted by an employer of that officer. Forest practices officers have a concomitant duty to ensure and enforce compliance with the Act and the Code. The scheme allows for enforcement of compliance through creation of offences and penalties and through ongoing assessment of the system of self-regulation by the Authority and the Board.
4. The implication also arises from s 43 in relation to delegations. A body corporate required by s 27(1) to lodge a three year plan with the Authority is entitled, under s 38(2), to have at least one suitably qualified person appointed as an officer under that section. By s 43(2), the Authority is required to delegate to that person its functions and powers concerning forest practices plans. Delegates and forest practices officers are accountable to the Authority in the exercise of their functions.
5. These provisions, when viewed in the context and in light of the purpose of the Act and legislative scheme, lead overwhelmingly to the conclusion that it would be artificial and unnecessary for a person exercising the delegated power to certify a forest practices plan to avoid being in a position, or acting in a way, which creates the appearance of bias. The neutrality expected in a judicial or quasi-judicial decision is not required and the nature of the decision under consideration and its statutory context is far removed from such a circumstance. There is no statutory implication or condition on the exercise of the delegated power that the decision maker not be subject to an apprehension of bias. The challenge to the certifications on this basis is not made out."
6. For these reasons, I would dismiss the appeal.

[1] The appellant has not appealed against the ruling that the delegations were valid.

[2] Ding v De Wit [2024] TASSC 6

[3] Section 15(9)(a)(i) of the Supreme Court Civil Procedure Act.

[4] The amended application with which the trial judge dealt was filed on 4 May 2022.

[5] Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 4 ALD 277.

[6] VicForests v Kinglake Friends of the Forest [2021] VSCA 195