5.6 Meaning of "any other aggrieved person" in s 147(1)
86 Section 147 sits within Pt 10 which is entitled "Enforcement". Section 147, together with the other provisions which make up Pt 10, are directed to the entirety of Pt 4. The words of s 147(1) expressly adopt the scope of dealings regulated by the GTA reflected in the offence provisions:
If a person has engaged, is engaging, or is about to engage in any conduct that is or would be an offence against this Act or the regulations, the Federal Court of Australia (the Court) may, on the application of the Regulator or any other aggrieved person, grant an injunction restraining the person from engaging in the conduct.
(Emphasis added.)
87 An injunction may be granted "on the application of the Regulator or any other aggrieved person" but only to restrain "the conduct", being "conduct that is or would be an offence under this Act". I have set out all the offence provisions above. The applicant has only alleged that the respondents contravened the offences in s 32 and s 33 of the Act by dealing with a GMO product in one of the ways set out in s 10 without a licence. The other offence provisions dealing with the GMO register, notifiable low risk dealings and emergency dealings are not relevant.
88 The applicant contends that the specific dealings regulated by the Act are essential to the administration of GMO products to consumers - specifically, the importation, transportation and disposal of GMO products. The applicant says that "but for" these types of dealings, there could be no lawful consumption of GMO products by any person in Australia. As such, the GTA, and by extension the OGTR, has "absolute control" over the regulation of GMO products in Australia. The applicant submits that but for the respondents' alleged Breaches, the vaccines could never have been imported, transported and ultimately distributed to Dr Fidge and therefore he could not have administered the vaccines to patients or received the vaccine himself. On this basis, the applicant concludes that he is an "aggrieved person" within the meaning of s 147(1).
89 I accept that the purpose of Act is slightly broader than that posited by Pfizer. The Act indirectly regulates the administration of GMO vaccines to patients by regulating the process of importation, distribution and supply of a GMO product. However, I do not consider that that conclusion assists the applicant.
90 The GTA should not be viewed in isolation. As s 4(b) of the Act and the Explanatory Memorandum make clear, the GTA is one statute in a broader regulatory framework that regulates GMOs. The legislature is clearly concerned with the risks posed to consumers from the consumption or use of GMOs (in whatever form). However, the legislature has made a clear choice that regulators other than the OGTR are responsible for managing those risks even if, as the applicant contends, GMO products could not lawfully reach the point of administration or consumption in Australia without a licence under the GTA.
91 The applicant's submission that the OGTR has "absolute control over the distribution of GMO vaccines in Australia" is based on an expansive view of the types of activities within the definition of "deal with" in s 10. The applicant's construction fails to read those activities together with the other parts of the Act that explain how the OGTR is actually empowered to regulate those particular activities. The OGTR regulates only particular aspects of importation and transportation, being those presenting biosafety risks. For example, s 62(2) sets out licence conditions that may be imposed on dealings, including those relating to the required level of containment in facilities (subs (e)), waste disposal requirements (f), "actions to be taken in case of the release of a GMO from a contained environment" (j), "supervision by, and monitoring by, Institutional Biosafety Committees" (m) and "limiting the dissemination or persistence of the GMO or its genetic material in the environment" (o).
92 By contrast, the TGA regulates the safety, efficacy and quality of therapeutic goods, and controls which therapeutic goods can be imported and supplied in Australia. The applicant's submission, in effect, assumes the "super-regulator" model which the legislature expressly disavowed when it adopted the gap-filler model proposed in the Bill.
93 Further, the use of the words "or any other" in s 147(1) suggest that standing of the "other aggrieved person" could be no wider than that of "the Regulator". The standing of the Regulator must necessarily be confined to preventing "dealings" prohibited by the Act. The Regulator cannot seek injunctions under the GTA to prevent conduct that is regulated by another act for which another regulator is responsible. The legislature therefore cannot have intended that a person aggrieved by conduct regulated by other statutory regulators (here, the approval of vaccines by the TGA) would be able to seek an injunction under the GTA to restrain that conduct. Accordingly, an injunction under s 147(1) cannot be sought by a person who is aggrieved by the use of a GMO where that use is not one of the exhaustively defined dealings regulated by the Act.
94 The applicant further submits that he does not need to be directly aggrieved by the conduct that may be an offence against the Act but may establish standing if he is indirectly aggrieved, in the sense that but for the respondents' Vaccine Dealings and Breaches he would never have administered the vaccines or received them himself. The applicant cites Brennan J's comments in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157, an Administrative Appeals Tribunal decision, for that proposition:
a decision which affects the interests of one person directly may affect the interest of others indirectly. Across the pool of sundry interests, the ripples of affectation may widely extend.
95 The applicant did not refer to any other authority that established that standing may derive from an indirect "aggrievement" or "special interest". The applicant's reliance on McHattan is ill-conceived for two reasons. First, McHattan has limited precedential authority as Brennan J explicitly stated at 156 that "I should wish to restrict the ambit of this decision so far as it may be restricted to the precise circumstances of the present case". The case concerned judicial review under the Administrative Appeal Tribunal Act 1975 (Cth) of a decision of the Collector of Customs under the Customs Act 1901 (Cth).
96 Second, the applicant has quoted Brennan J out of context. Immediately following the passage quoted by the applicant, Brennan J states (at 157):
The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.
97 Brennan J concluded that the applicant, who was a customs agent, did not have standing to challenge a decision of the Customs Collector to demand payment from one of his clients because the applicant's commercial and reputational interests in his advice being shown to be erroneous by the decision was too tenuous or remote to be affected "in truth".
98 As such, the applicant has not pointed me to any relevant authority that supports his submission that he need not be directly aggrieved by the "conduct that is an offence against the Act" but may be indirectly impacted in some remote way.
99 Finally, the applicant criticised Pfizer's narrow construction of the Act. He essentially asked: if I do not have standing, then who could possibly qualify as an aggrieved person under the Act? In response, Pfizer gave two general categories of persons who may qualify as an aggrieved person for the purpose of s 147(1).
100 First, a person may be aggrieved by conduct which is in breach of a condition, whether that be a breach of a licence condition, an emergency dealing determination condition, a condition included on the GMO Register or one of the conditions set out in the regulations in relation to notifiable low risk dealings. By way of example, ss 62 to 65 set out the various conditions which may be included in a licence. Section 62(2) states:
(2) Licence conditions may relate to, but are not limited to, the following:
(a) the scope of the dealings authorised by the licence;
(b) the purposes for which the dealings may be undertaken;
(c) variations to the scope or purposes of the dealings;
(d) documentation and record-keeping requirements;(e) the required level of containment in respect of the dealings, including requirements relating to the certification of facilities to specified containment levels;
(f) waste disposal requirements;
(g) measures to manage risks posed to the health and safety of people, or to the environment;
(h) data collection, including studies to be conducted;
(i) auditing and reporting;
(j) actions to be taken in case of the release of a GMO from a contained environment;
(k) the geographic area in which the dealings authorised by the licence may occur;
(l) requiring compliance with a code of practice issued under section 24, or a technical or procedural guideline issued under section 27;
(m) supervision by, and monitoring by, Institutional Biosafety Committees;
(n) contingency planning in respect of unintended effects of the dealings authorised by the licence;
(o) limiting the dissemination or persistence of the GMO or its genetic material in the environment.
101 These are examples of conditions the breach of which may cause grievance to either individuals directly interacting with a GMO, or people at locations which are adjacent to the location where the GMO is used or released. Individuals directly interacting with a GMO could include laboratory technicians, individuals involved in manufacturing GMOs or individuals responsible for transporting GMOs.
102 The second category encompasses persons who may be aggrieved by the biosafety risks arising from conduct that constitutes a dealing but for which no licence was sought and for which no conditions have been imposed to mitigate biosafety risks. Such a person may include a transport worker who was handling vials of GMO products that were unlicenced and therefore did not know of, and did not take relevant precautions to deal with, the relevant risks. A further example might be someone who owned land upon which GMO products were being disposed of and where there were occupational risks and environmental risks associated with the disposal and storage of those materials.
103 I accept that these are plausible examples of persons who may constitute "any other aggrieved person" under the Act. I therefore reject the applicant's assertion that Pfizer's construction of the Act is so "narrow, myopic and restrictive" that it prevents basically anyone, or at least those with a real interest, from having standing to challenge breaches of the Act.