Federal Court of Australia|1994-12-16|Before: Mr J, Sackville J

North Coast Environment Council Incorporated v Minister of Resources [1994] FCA 1556; (1994) 36 ALD 533 (1994) 55 FCR 492 (16 December 1994)

NORTH COAST ENVIRONMENT COUNCIL INCORPORATED v. MINISTER FOR RESOURCES

Administrative Law - standing - right to statement of reasons under s 13 Administrative Decisions (Judicial Review) Act 1977 - "person aggrieved" - requirement of "special interest" - extent to which non-financial or non-proprietary interest may suffice - environmental group with a special interest in the preservation of a particular environment may have a sufficient special interest.

Environmental Protection (Impact of Proposals) Act 1974, s 5, s 10

Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493

Australian Conservation Foundation v Minister for Resources (1989) 19 ALD

Ogle v Strickland (1987) 13 FCR 306

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Right to Life Association (NSW) Inc v Secretary of the Commonwealth

Department of Human Services and Health (1994) 125 ALR 337

Mr J. Basten QC and Mr N. Williams instructed by the Environmental Defender's Office appeared for the applicant.

Mr J. Heydon QC and Mr P. Comans instructed by the Australian Government Solicitor appeared for the respondent.

1. DECLARES that the applicant was entitled, in respect of the

decision of the respondent to grant a licence pursuant to reg.8 of

the Export Control (Unprocessed Wood) Regulations to Sawmillers

Exports Pty Limited so as to allow that company to export

woodchips for a period of three months from 30 June 1994, by

notice in writing dated 11 July 1994, to request the respondent to

furnish a statement in writing setting out the findings on

material questions of fact, referring to the evidence or other

material on which those findings were based and giving the reasons

for the decision.

2. GRANTS liberty to apply on 3 days' notice to the applicant.

3. ORDERS the respondent to pay the applicant's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SACKVILLE J The applicant in these proceedings is North Coast Environment Council Incorporated. I shall refer to it as "North Coast". North Coast seeks a declaration against the Respondent Minister in the following terms:

"(T)hat the Applicant was entitled, in respect of the

decision...of the Respondent to grant an export licence

pursuant to the Export Control Act to Sawmillers Exports Pty

Limited so as to allow that company to export wood chips for

a period of three months from 30 June 1994, by notice in

writing dated 11 July 1994, to the Respondent to

request...the Respondent to furnish a statement...in writing

setting out the findings on material questions of fact,

referring to the evidence or other material on which those

findings were based and giving the reasons for the

decision."

2. North Coast also seeks an order that, within 28 days, the Minister provide a statement of reasons in answer to North Coast's request, as required by s.13(1) and (2) of the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act").

3. The relevant provisions of s.13 of the ADJR Act are as follows:

"13.(1) Where a person makes a decision to which this

section applies, any person who is entitled to make an

application to the Court under section 5 in relation to the

decision may, by notice in writing given to the person who

made the decision, request him to furnish a statement in

writing setting out the findings on material questions of

fact, referring to the evidence or other material on which

those findings were based and giving the reasons for the

decision.

(2) Where such a request is made, the person who made the

decision shall, subject to this section, as soon as

practicable, and in any event within 28 days, after

receiving the request, prepare the statement and furnish it

to the person who made the request.

(3) Where a person to whom a request is made under

sub-section (1) is of the opinion that the person who

made the request was not entitled to make the request,

the first-mentioned person may, within 28 days after

receiving the request -

(a) give to the second-mentioned person notice in writing

of his opinion; or

(b) ...

(4) Where a person gives a notice under sub-section (3),

or applies to the Court under sub-section (4A), with respect

to a request, the person is not required to comply with the

request unless -

(a) the Court, on an application under sub-section (4A),

declares that the person who made the request was

entitled to make the request; or

(b) ...

and, in either of those cases, the person who gave the

notice shall prepare the statement to which the request

relates and furnish it to the person who made the request

within 28 days after the decision of the Court.

(4A) The Court may, on the application of-

(a) ...

(b) the person who has received a notice under sub-section (3);

make an order declaring that the person who made the request

concerned was, or was not, entitled to make the request."

4. The reference in s.13(1) to "any person who is entitled to make an application to the Court under section 5 in relation to the decision" is to the introductory words of s.5(1) of the ADJR Act. These provide that

"(a) person who is aggrieved by a decision to which this Act

applies...may apply to the Court for an order of review in

respect of the decision"

on eight enumerated grounds. Section 3(4) provides that in the ADJR Act

"(a) a reference to a person aggrieved by a decision

includes a reference -

(i) to a person whose interests are adversely

affected by the decision..."

5. The only substantial issue debated in this appeal was whether North Coast answered the description of a "person aggrieved" by the Minister's decision. North Coast argued that it had a sufficient interest to make it a "person aggrieved" or, to put it slightly differently, to give it standing to pursue its claim for relief. Mr Heydon QC, who appeared with Mr Comans on behalf of the Minister, submitted, principally in reliance on the authority of Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, that North Coast was not "a person who is aggrieved by a decision" of the Minister and thus was unable to claim relief under s.13 of the ADJR Act.

6. As appears from the form of declarations sought by the Minister, the Minister's decision was to grant a licence to allow Sawmillers Exports Pty Ltd ("Sawmillers") to export woodchips for a period of three months from 30 June 1994. The case was argued after the licence had expired. At an earlier stage of the proceedings the Minister filed a notice of motion seeking an order that the proceedings be dismissed on the ground of lack of utility. On 7 October 1994 I delivered reasons for refusing to dismiss the proceedings at that stage.

7. On 14 November 1990, the Minister for Resources designated Sawmillers as the proponent for proposed action relating to the production of woodchips intended for export. The Minister took the action under the Administrative Procedures, issued under the Environment Properties (Impact of Proposals) Act 1974 ("the Environment Protection Act"). Sawmillers was designated as the proponent in relation to a proposal to extend its woodchip operations to include material from private property and silvicultural reserves from Crown forests. The Minister's designation did not include the export of woodchips produced from sawmill and logging residues because these activities were assessed not to have a significant impact on the environment (compare s.5 of the Environment Protection Act).

8. I infer that Sawmillers held a licence to export woodchips prior to 1992. That licence was issued pursuant to reg.8 of the Export Control (Unprocessed Wood) Regulations, made pursuant to the Export Control Act 1982. The Minister for Resources renewed Sawmillers' licence for 1992, while the environmental assessment was conducted. In a letter of 10 April 1992 to North Coast, the Minister for Resources stated that he had taken this action because the export of woodchips from silvicultural residues had been the subject of lengthy consideration by State and Commonwealth authorities and no substantial reason had been shown why Sawmillers should be prevented from exporting woodchips from this source pending the environmental assessment, particularly having regard to the commercial, economic and employment implications of Sawmillers' operations.

9. In October 1993 Sawmillers completed a draft environmental impact statement ("EIS") in response to a direction from the Minister for the Environment under the Administrative Procedures. It appears that, while the draft EIS was being completed, Sawmillers received a renewal (or renewals) of its export licence until the end of 1993. The draft EIS focussed upon the environmental effects of exporting woodchips produced from silvicultural residue operations in State forests and from foresting and clearing operations on private property over the period 1993 to 2003. Sawmillers itself, according to the draft EIS, was not to undertake woodchipping. Rather, it purchased woodchips from suppliers who chip sawmill residues and roundwood for sale to Sawmillers. The designated operations were to extend over a large part of the central and mid-North Coast region of New South Wales.

10. On 15 November 1993, the then Minister for Resources granted Sawmillers a further licence under reg.8 of the Export Control (Unprocessed Wood) Regulations to export up to 500,000 tonnes of hardwood woodchips from the port of Newcastle during 1994. The licence provided (cl.3(c)) that the exporter could export woodchips derived from silvicultural residues from New South Wales State forests and materials sourced from private property only until 30 June 1994. This was the then expected date for finalisation of Sawmillers' EIS.

11. On 20 June 1994 Sawmillers applied for a licence to export woodchips until completion of the EIS. For this purpose it surrendered the then current licence held by it. On 30 June 1994, the Minister for Resources (Mr Beddall) issued Sawmillers with a further licence under the Export Control (Unprocessed Wood) Regulations. This licence permitted the export of up to 125,000 tonnes of woodchips from the port of Newcastle during the period from 1 July 1994 to 30 September 1994.

12. One of the conditions of the licence provided that logging residues and silvicultural residues should be processed only when supplies of sawmill residues available to Sawmillers were being utilised to the fullest extent possible. Logging and silvicultural residues were to be derived from routine managerial operations in New South Wales Crown forests, specified by State Forests of New South Wales. (The expression "sawmill residues" was defined to mean waste material from sawn timber production; "logging residues" to mean the heads, limbs and butts of trees felled for sawlogs and trees felled for sawlogs but found to be faulty; and "silviculture residues" to mean material resulting from thinning of regrowth forest and plantations, tree clearing for road making and salvage logging following natural disasters.)

13. On 11 July 1994 the solicitors for North Coast requested the Minister for Resources, pursuant to s.13 of the ADJR Act, to provide a statement in writing setting out findings and giving the reasons for the decision to vary Sawmillers' export licence so as to allow the export of woodchips for a further three month period from 30 June 1994. On 9 August 1994 the solicitors for North Coast advised the Minister that the period of 28 days provided for in s.13(2) for the provision of reasons had expired. The letter requested the reasons as a matter of urgency.

14. On 15 August 1994 the Minister replied. He indicated that he did not accept that North Coast was an aggrieved party for the purposes of the ADJR Act and accordingly did not accept that North Coast was entitled to a statement of reasons under that Act. Nevertheless, the Minister provided certain limited information to North Coast. The letter pointed out that the former Minister had approved, in 1993, an application by Sawmillers to export up to 500,000 tonnes of hardwood woodchips during 1994. The letter stated that that licence was consistent with an earlier decision that the export of woodchips produced from sawmill and logging residues from material harvested in northern New South Wales did not have a significant environmental impact. The letter went on to say that Sawmillers had been asked to prepare an EIS on the designated operations and that the previous licence covered only the period until 30 June 1994, the then expected date for finalisation of the EIS; that following delays in the EIS process, the Minister had decided to issue Sawmillers with an export licence in June 1994 to enable the company to continue export of woodchips from designed sources until 30 September 1994; and that this period was required for the EIS to receive appropriate consideration.

15. On 13 September 1994 North Coast commenced the principal proceedings.

16. As I have previously noted, the licence granted to Sawmillers, in respect of which North Coast sought relief in these proceedings, expired on 30 September 1994. Thus the licence is no longer in force. On 30 September 1994 the Minister granted Sawmillers a further licence to export hardwood woodchips pursuant to the Export Control (Unprocessed Wood) Regulations. The licence was for the export of up to 500,000 tonnes of woodchips and was for the period commencing on 1 October 1994 and ending on 31 December 1995. On 1 November 1994 the solicitors for the applicant sought reasons from the Minister, pursuant to s.13 of the ADJR Act, for the issue of this licence. The entitlement of the applicant to make this request is not directly in issue in the present proceedings. However, the decision in the present case will presumably have some bearing on the fate of that further request for reasons.

17. North Coast, which was originally called the North Coast Conservation Council, was formed in 1977 following a meeting of nine unincorporated societies from the North Coast and New England areas. The major issues prompting the formation of North Coast included sandmining, forestry issues and proposals for the export of woodchips from the Coffs Harbour area. North Coast's current name was adopted in 1981, and it was incorporated under the Associations Incorporation Act 1984 (NSW) in April 1989.

18. North Coast is a non-profit body and its property and income must be applied to its objects. North Coast's rules provide that its prime aim and object is to promote the cause of conservation throughout the "defined area" or elsewhere as may be determined from time to time. The "defined area" covers a region from Newcastle in the south to the Queensland border in the north, and from a line west of the New England highway in the west to the coastline in the east. It was not in dispute that the defined area included the areas from which Sawmillers was to obtain woodchips to be exported pursuant to the licence granted by the Minister. North Coast's objects include the following:

"(1) To work for the better conservation of the physical

environment of the defined area, its landscape, its

flora and fauna, its waters and foreshores and coasts,

to work for the maintenance and improvement of its

human amenities, and the wise use of its natural

resources, and to engage in any and all conservation,

environmental, ecological or planning activities and

in such ways as the Council may decide.

(2) To represent generally the views of such bodies as may

be engaged in any aspect of the conservation of the

defined area; to foster optimum liaison between such

bodies in the inter-change of information and views;

and in particular to support as requested, the

conservation activities of its member organisations.

...

(7) To act as spokesperson and to make representations and

submissions to any person, organisation, public

authority or instrumentality on such conservation

matters as apply generally to the defined area or to

other areas excepting that in any matter of prime

concern to a member body and specifically affecting

only the local area covered by that member body the

agreement of that member body must be gained before

such Council actions are taken."

19. At 30 June 1994 North Coast had forty eight members. Of those forty four were member groups, each paying an annual subscription of $20. The members included such organisations as the Coffs Harbour Environment Centre, the Clarence Valley Conservation Coalition and the Nambucca Valley Conservation Society. North Coast is governed by a committee of ten councillors elected by delegates of the member groups. The member organisations must agree to the objectives of the Council. In this sense, and having regard to North Coast's role as spokesperson on conservation matters, it is aptly described as the peak environmental organisation for Northern New South Wales. Its own literature describes North Coast as

"the regional umbrella organisation for community

conservation and environmental groups on the North Coast of

N.S.W."

20. North Coast is itself a member group of the Nature Conservation Council ("NCC"), which is the peak conservation body for New South Wales. From time to time an officer of North Coast has been an office bearer of the NCC. The NCC, which was established in 1955, describes itself as the umbrella organisation for about eighty environmental and scientific societies promoting the cause of conservation throughout New South Wales.

21. North Coast does not employ paid staff. Decisions are implemented by the secretary, committee members and delegates. North Coast has received grants from the Commonwealth's program for voluntary conservation organisations. The recent grants have been modest in comparison with grants to national or State "peak" environment organisations. The assistance received by North Coast for the past three financial years from the Department of Environment, Sport and Territories under this program was as follows:

1991/92 1992/93 1993/94

$8,000 $ 8,160 $10,188

22. The comparable figures for the Australian Conservation Foundation and the NCC are as follows:

Australian Conservation Foundation

1991/92 1992/93 1993/94

$179,655 $193,248 $197,463

NCC

1991/92 1992/93 1993/94

$ 93,335 $ 95,202 $ 97,392

23. In 1993 North Coast was registered as a charity under the Charitable Collections Act 1934. As from June 1994 it is one of some 53 organisations listed in the Register of Environmental Organisations maintained by the Department of Environment, Sport and Territories for the purposes of s.78(1)(a)(cix) of the Income Tax Assessment Act 1936. Thus donations to the Council are deductible from assessable income for income tax purposes. There was, however, no evidence of the extent of donations made to the North Coast before or after it was listed in the Register. North Coast's accounts were not in evidence.

24. North Coast has nominees on a number of committees, as a representative of the environment and conservation movement in northern New South Wales. Its role includes membership of the Northern Rivers Regional Planning Advisory Committee, an advisory committee to the State Minister for Planning convened under s.22 of the Environmental Planning and Assessment Act 1979 (NSW), and of the Forestry Policy Advisory Committee, convened by the Director-General of the New South Wales Department of Conservation and Land Management ("CALM"). The role of the Forestry Policy Advisory Committee is to advise the Minister for Land and Water Conservation on all matters relating to forestry policy in New South Wales. The terms of reference require the Committee to advise the Minister, inter alia, on the allocation of land to State forests; the management of State forests; Crown timber lands and private forests; measures taken to support ecologically sustainable forest operations; and the outcome of forestry industry programs of public consultation.

25. North Coast has also appointed representatives to a management committee jointly established by three State Ministers to provide advice on contaminated cattle dips. Meetings take place from time to time between representatives of North Coast and the Chief Executive Officer of State agencies, such as CALM, the Forestry Commissioner of New South Wales, the National Parks and Wildlife Service and the Environment Protection Authority. At least one meeting has also occurred with the State Minister for Land and Water Conservation.

26. North Coast representatives participate in workshops and conferences including, for example, a workshop on "Soil Erosion Mitigation Guidelines for Logging" convened by CALM in June 1993. Less frequently, North Coast organises its own conferences, one of which was held in July 1990 on the topic of "Politics and the Conservation Movement". None, however, appears specifically to have been on forestry issues. In December 1993 the Department of Environment, Sport and Territories approved a special purpose grant of $8,000 to North Coast to assist with travel and administrative costs of holding the 1994 National Conference of Conservation Councils and Environment Centres. This conference is held annually and hosted each year by a different conservation council. The conference hosted by North Coast was held in March 1994 at Coffs Harbour and attracted about 40 delegates from five States and the ACT.

27. North Coast has made submissions to a variety of governmental bodies on environmental matters, including forestry issues. In April 1990 it presented a 25 page submission to the Resource Assessment Commission, in connection with the Commission's Inquiry into Forest and Timber Resources. The submission addressed "forest values...in the context of activities in North East NSW native forests". The document discussed forest management issues relating to national parks, State forests and private lands and, among other topics, dealt with proposals for woodchipping and its effect on old growth and regrowth trees. Representatives of North Coast gave evidence before the Resource Assessment Commission in October 1991.

28. In January 1990, North Coast made a submission to the Department of State Development arguing against the establishment of pulp and paper mills in New South Wales as recommended by a task force. Submissions have also been made by North Coast to State agencies in connection with draft environmental impact statements prepared for State purposes. The submissions related to forests in the Glen Innes, Dorigo, Wauchope and Kempsey management areas.

29. In 1992 North Coast provided $1,000 to co-fund a pilot study to devise a methodology for identifying and assessing the value of old growth forests. The site chosen was the Wild Cattle Creek State Forest in the Dorrigo Management Area. The report, which is a detailed document of 83 pages, was publicly released in April 1994.

30. In 1989 the then Department of the Arts, Sports, the Environment, Tourism and Territories agreed to pay North Coast $14,000 to conduct a project on community based approaches to land/resource use management. In January 1990 the same Department paid $41,975 to North Coast to undertake a regional chemical use data base project. The project was undertaken by a research group known as Bio-Region Computer Mapping, although the precise relationship between North Coast and that group is not entirely clear on the evidence. In January 1994 the Minister for Environment approved a grant of $5,000 to enable the Council to develop and implement an information program on the National Estate for aboriginal land councils and communities on the north coast.

31. The evidence showed that North Coast has engaged in correspondence with State and Commonwealth authorities concerning woodchipping in northern New South Wales. Much of this correspondence was exchanged with the Commonwealth Minister for Resources in relation to the woodchip export operations conducted by Sawmillers.

32. In February 1992, North Coast sought reasons from the then Minister, pursuant to the ADJR Act, for the decision to issue a woodchip export licence to Sawmillers in December 1991. In the letter, North Coast described itself as a "public interest, community based environment group". The letter stated that North Coast and its 40 local and district based member bodies were committed to protecting the region's environmental heritage and North Coast itself "has a long standing interest in forestry issues within this region, including woodchipping". Without conceding its entitlement to make the request, the Minister provided reasons in the letter dated 10 April 1992, to which I have already referred. Later in 1992 North Coast sought reasons for what was described in evidence as the Minister for the Environment's decision not to designate Sawmillers as the proponent of proposals for woodchip exports pursuant to the Administrative Procedures issued pursuant to s.6 of the Environment Protection Act. The Minister replied to the request, explaining that the Minister for Resources had decided that the export of woodchips sourced from the sawmill or logging residues would not affect the environment to a significant extent.

33. In December 1992 North Coast notified the Minister for Resources that it had resolved to oppose the renewal of export licences for woodchips on the ground that there had been no proper EISs. In 1993 and 1994 the Council continued to correspond with the Minister for the Environment urging (among other things) intervention to stop the export of woodchips by Sawmillers and the scrutiny of an interim assessment conservation order pursuant to s.79 of the Endangered Species Protection Act 1992. In May 1994 a letter on behalf of the Minister advised that obligations under that Act could be and had been met by attaching conditions to the woodchip export licence granted to Sawmillers.

34. Earlier, in January 1994, North Coast, in conjunction with the North East Forest Alliance, prepared a submission on Sawmillers' draft EIS. The author of the submission was Mr D. Pugh, one of North Coast's nominees on the Forestry Policy Advisory Committee. The project appears to have been supported from the Council's general funds. The thrust of the submission - which is a substantial document of 359 pages - is that the Sawmillers' draft EIS was superficial and inadequate and failed to provide a clear assessment of the activities or impact associated with woodchipping. (In this connection, I should make it clear that it is no part of my function to determine whether the criticisms in the submission are well-founded or not. The relevance of the material is that it evidences the interest of North Coast in, and its commitment to, the environmental issues raised by woodchipping activities in the forests of north-east New South Wales.)

35. It is convenient to commence with a summary of the applicant's submissions to support the contention that it is a "person aggrieved" for the purposes of the ADJR Act.

36. Mr Basten argued that since 1981 the common law rules as to standing have been approached in a flexible manner. The authorities recognise that applicants have standing to enforce a public right or duty if they have "a special interest in the subject matter of the action". In Mr Basten's submission, Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, supports the proposition that a non-material interest in the preservation of land can suffice to establish a special interest in the subject matter of action. What is required is an analysis of the importance of the applicant's concern with the particular subject matter and the closeness of the applicant's relationship to that subject matter: Onus v Alcoa, at 42.

37. Mr Basten submitted that decisions of the Federal Court showed that organisations whose constitutions formulated particular objects, were doing more than voicing mere emotional or intellectual concerns when pursuing those objects (compare ACF v The Commonwealth, at 530, 548, 552). In particular, the interest of the applicant was similar to that upheld by Davies J in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 (FCA/Davies J). In that case, his Honour upheld the standing of the ACF to challenge the decision of the Minister to grant a licence to export woodchips, which were to be obtained from State Forests forming part of the National Estate under s.31 of the Australian Heritage Commission Act 1975.

38. Mr Basten also relied on the fact that the processes contemplated by the Administrative Procedures had been invoked. In particular, the draft EIS had been prepared by Sawmillers as the designated proponent of the "proposed action" under cl.1.2.1 of the Administrative Procedures. The final EIS had to be made publicly available and a copy provided to any body making written comments (cl.8.2). The Department of Environment could at any time review the environmental aspects of the proposed action and, if it did, the Minister for the Environment would be bound to inform the proponent and the Minister for Resources of the review (cl.10.2.1). Furthermore, since the proposed action of Sawmillers fell within s.5 of the Environment Protection Act (as a "matter affecting the environment to a significant extent"), the rights of members of the public under s.10 of that Act were enlivened. Section 10 allows "any person" to require the Minister to inform him or her as to what action, if any, has been taken to ensure consideration of the environmental aspects of the matter within s.5.

39. As I understood Mr Basten's argument, he submitted that the principles of open decision-making reflected in the Environment Protection Act supported the claim of the applicant to have a special interest in obtaining reasons for the decision to grant Sawmillers a licence. The nature of the relief sought by the applicant was limited to requiring a statement of reasons on a matter in respect of which legislation had provided for open decision-making. This provided a reason for taking a broader view to the interpretation of "person aggrieved" than might apply in another context.

40. The Minister submitted that North Coast had no special interest within the principles stated by the High Court in ACF v Commonwealth. North Coast had no more than a strongly held concern about the integrity of the environment.

41. Mr Heydon submitted that North Coast's actions in making representations to government and commenting on the draft EIS were insufficient to elevate its position beyond a mere intellectual or emotional concern, which the High Court had held to be insufficient to establish standing. There was therefore no satisfactory basis for distinguishing ACF v Commonwealth from the present circumstances.

42. Mr Heydon submitted that ACF v Minister for Resources should not be followed. Even if the decision was correct, the present case was different. For example, the ACF was the major conservation organisation in Australia, while North Coast was only a regional organisation, and was one of 82 members of the NCC, the State peak environmental organisation. North Coast had very limited funding, no employees and very restricted support from government. For these and other reasons, North Coast did not meet the criteria specified by Davies J as justifying according it standing to challenge a decision to grant an export licence in respect of woodchips.

43. Mr Heydon also submitted that any reliance on the Administrative Procedures and the Environment Protection Act was misplaced. He pointed out that the present proceedings involved no challenge to acts or decisions under either the Administrative Procedures or the Act. Rather the relevant decision was the grant of the export licence under the Export Control (Unprocessed Wood) Regulations. In any event ACF v Commonwealth had decided that a challenge based on non-compliance with the Administrative Procedures could not rely on any recognition of standing contained either in the Environment Protection Act or the Administrative Procedures. The only possible exception to this was s.10 of the Environment Protection Act, which gave "any person" a statutory entitlement to information, but North Coast was not challenging any decision under s.10, nor asking for reasons for any decision relating to s.10. Furthermore, participation in the environmental assessment machinery provided for in the Administrative Procedures could not elevate North Coast's interest above that of the public at large. So much had been held in ACF v Commonwealth itself.

44. There is much to be said for the view that the focus of attention where decisions of public authorities are challenged or reasons for those decisions are sought should not be any benefit that might accrue to the plaintiff or the applicant. On this view, the focus should be on those "who can represent the public interest (in litigation) most effectively and faithfully": M. Allars, "Standing: The Role and Evolution of the Test" [1991] FedLawRw 3; (1991) 20 Federal Law Review 83, at 95. Indeed the law, at least for the purposes of the ADJR Act, appears to be in a state of transition, although it is fair to say that there has been a progressive widening of the law of standing and of the concept of "person aggrieved" over the last century: Coles Myer Ltd v O'Brien (1992) 28 ALD 555 (NSW CA), at 556-558, per Kirby P; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 (FCA/Gummow J), at 130-132. The question in this case is, perhaps, how far the latest transitional process has gone.

45. The starting point is ACF v Commonwealth. This was not a case arising under the ADJR Act, which did not come into force until 1 October 1980. The plaintiff sought declaratory and injunctive relief in the High Court in relation to an approval to an exchange control transaction granted under the Administrative Procedures. The transaction was to facilitate a proposal by a company to establish a resort and tourist area at Farnborough in Queensland. The statement of claim alleged that the decision was invalid because the Administrative Procedures were not followed and, in particular, a final EIS had not been taken into account.

46. The statement of claim set out the objects of the ACF, the first two of which were as follows:

"(i) to make every effort to ensure that the air, land and

waters of Australia are used with wisdom and foresight

and that competing demands upon them are resolved in

the best long-term interest of the nation;

(ii) to foster the conservation of the distinctive

vegetation and fauna and important natural and

archaeological features of Australia".

47. It was alleged in the statement of claim that the ACF had 6,500 members; that it had made submissions to governments and public authorities in respect of environmental matters; and that it had received annual grants from the Commonwealth for its purposes (at 496-497).

48. The defendants applied to strike out the statement of claim and to dismiss the proceedings on the ground that the plaintiff had no standing. The application succeeded before Aickin J at first instance and the appeal to the Full Court was dismissed by a 3:1 majority (Gibbs, Stephen and Mason JJ; Murphy J dissenting).

49. On appeal the ACF took a broad approach, arguing that ideological interests such as beliefs or objectives shared by a group of people on moral, social or environmental questions was enough to give standing (at 513). Gibbs J rejected this argument (at 526):

"...the action was not brought by the Foundation to assert a

private right. It is brought to prevent what is alleged to

be a public wrong. The wrong is not one that causes, or

threatens to cause, damage to the Foundation, or that

affects, or threatens to affect, the interests of the

Foundation in any material way. The Foundation seeks to

enforce the public law as a matter of principle, as part of

an endeavour to achieve its objects and to uphold the values

which it was formed to promote. The question is whether, in

these circumstances, it has standing to sue.

It is quite clear that an ordinary member of the public, who

has no interest other than that which any member of the

public has in upholding the law, has no standing to sue to

prevent the violation of a public right or to enforce the

performance of a public duty. There is no difference, in

this respect, between the making of a declaration and the

grant of an injunction. The assertion of public rights and

the prevention of public wrongs by means of those remedies

is the responsibility of the Attorney-General, who may

proceed either ex officio or on the relation of a private

individual. A private citizen who has no special interest

is incapable of bringing proceedings for that purpose,

unless, of course, he is permitted by statute to do so."

50. Gibbs J then reformulated the second limb of the test of standing stated by Buckley J in Boyce v Paddington Borough Council (1903) 1 Ch 109. That limb gave standing, where a public right was interfered with, only if the plaintiff suffered "special damage peculiar to himself". The restatement by Gibbs J specified the requirement as having to show "a special interest in the subject matter of the action" (at 527). His Honour went on (at 530):

"I would not deny that a person might have a special

interest in the preservation of a particular environment.

However, an interest, for present purposes, does not mean a

mere intellectual or emotional concern. A person is not

interested within the meaning of the rule, unless he is

likely to gain some advantage, other than the satisfaction

of righting a wrong, upholding a principle or winning a

contest, if his action succeeds or to suffer some

disadvantage, other than a sense of grievance or a debt for

costs, if his action fails. A belief, however strongly

felt, that the law generally, or a particular law, should be

observed, or that conduct of a particular kind should be

prevented, does not suffice to give its possessor locus

standi. If that were not so, the rule requiring special

interest would be meaningless. Any plaintiff who felt

strongly enough to bring an action could maintain it."

51. Gibbs J also held that the fact that the ACF had made written comments on the draft EIS was irrelevant to standing. In his view, the Administrative Procedures were not intended by the Environment Protection Act to create rights enforceable by private individuals (at 524-525, 531). In any event, even if the Governor-General had power, by approving the Administrative Procedures, they did not have that effect.

52. Stephen J observed that the ACF's concern was not to protect or advance its own material interests.

"It is, on the contrary, a disinterested body concerned to

protect the environment from insult, doing so in what it

regards as the interests of the community at large" (at

537).

53. There were two bases on which the ACF could possibly establish "special damage peculiar to himself", within the test formulated in Boyce. The first was the concern it had for Australia's environment and the particular threat posed by the Farnborough development. This was not enough. Stephen J concluded (at 539):

"For it to succeed upon this particular ground the law must

be that any person with genuinely held convictions upon a

topic of public concern thereby acquires standing to enforce

a public right to breach of which it takes exception. That

is not the current state of the law. To hold otherwise

would be radically to alter the existing law as it now

stands."

54. The second basis might be founded upon rights conferred by the Administrative Procedures. However, a commentator, once his or her comments had been received, had no further right under the Administrative Procedures over and above any available to other members of the community

"The only role for members of the public who make comments

on a draft EIS is that of providing information and

expressing views, the decision-making function remaining

wholly that of government" (at 545).

55. Mason J expressed agreement with Gibbs J that, apart from s.10 of the Environment Protection Act, neither that Act nor the Administrative Procedures conferred any rights on an individual or corporation which had furnished comments. His Honour said this (at 547-548):

"I also agree with Gibbs J that, apart from cases of

constitutional validity..., a person, whether a private

citizen or a corporation, who o has no special interest in

the subject matter of the action over and above that enjoyed

by the public generally, has no locus standi to seek a

declaration or injunction to prevent the violation of a

public right or to enforce the performance of a public duty.

...

In this difficult field there is one proposition which may

be stated with certainty. It is that a mere belief or

concern, however genuine, does not in itself constitute a

sufficient locus standi in a case of the kind now under

consideration....

Nowhere in the common law world is authority to be found for

the appellant's wide-ranging proposition."

56. Mr Basten submitted that ACF v Commonwealth must be understood as a response by the majority to the breadth of the arguments put by the appellant to the High Court. I think there is some force in that submission. Gibbs J, for example, while rejecting the appellant's broad argument, expressly acknowledged that a person could have a "special interest" in the preservation of a particular environment. Of course, viewing the decision in this light does not mean that it is devoid of binding effect. Clearly, it is insufficient to constitute a special interest to assert the same concerns as members of the public generally or to rely on "mere intellectual or emotional concerns". I return later to the principles for which the case stands. However, it does leave open the precise circumstances that will suffice to enable an applicant to demonstrate a special interest in the preservation of a particular environment.

57. In Onus v Alcoa, the plaintiffs claimed to be descendants and members of the Gournditch-jmara aboriginal people and custodians of the relics of those people according to their laws and customs. They brought proceedings in the Supreme Court of Victoria to restrain the defendant from carrying out work that would interfere with relics of their people, allegedly in breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).

58. It is perhaps hardly surprising that the plaintiffs were held by a unanimous High Court to have standing. This was a very different case from ACF v Commonwealth. As Mason J said (at 43):

"The relics here have great cultural and spiritual

significance for the Gournditch-jmara community. The

members of that community are the guardians of the relics

according to their laws and customs and they use the relics.

I agree with Gibbs CJ in thinking that in these

circumstances the appellants have a special interest in the

preservation of the relics, sufficient to support locus

standi."

59. Nonetheless, Stephen J made some observations in Onus v Alcoa that have proved influential in later cases. After noting that the possession of intellectual or emotional concern is no disqualification from standing to sue (at 41), his Honour said this (at 42):

"Thirdly, the distinction between this case and the A.C.F.

Case is not to be found in any ready rule of thumb, capable

of mechanical application; the criterion of "special

interest" supplies no such rule. As the law now stands it

seems rather to involve in each case a curial assessment of

the importance of the concern which a plaintiff has with

particular subject matter and of the closeness of that

plaintiff's relationship to that subject matter. The

present appellants are members of a small community of

aboriginal people very long associated with the Portland

area; the endangered relics are relics of their ancestors'

occupation of that area and possess for their community

great cultural and spiritual significance. While Europeans

may have cultural difficulty in fully comprehending that

significance, the importance of the relics to the appellants

and their intimate relationship to the relics readily finds

curial acceptance. It is to be distinguished, I think, and

will be perceived by courts as different in degree, both in

terms of weight and, in particular, in terms of proximity,

from that concern which a body of conservationists, however

sincere, feels for the environment and its protection.

Courts necessarily reflect community values and beliefs,

according greater weight to, and perceiving a closer

proximity to a plaintiff in the case of, some subject

matters than others. The outcome of doing so, however

rationalized, will, when no tangible proprietary or

possessory rights are in question, tend to be determinative

of whether or not such a special interest exists as will be

found standing to sue."

60. Brennan J, who had not been a member of the Court in A.C.F. v Commonwealth, expressed approval of the "special interest" test, formulated by Gibbs J in that case, and noted that it was broader than the "special damage" test put forward in Boyce (at 69-70). His Honour elaborated the concept of "special interest", pointing out that it could embrace non-material interests (at 73-74):

"A special interest in the subject matter of an action being

neither a legal nor equitable right, nor a proprietary or

pecuniary interest, will ordinarily be found to arise from

modern legislation enacted to protect or enhance

non-material interests - interests in the environment, in

historical heritage, in culture. Where such a statute

imposes a public duty to protect or enhance a non-material

interest a breach of the duty is apt to affect a

non-material interest, and it would be vain to search for

proprietary or pecuniary damage suffered by a plaintiff. A

plaintiff in such a case, though he may be able to show a

special interest in what the statute seeks to protect or

enhance, would be unable to show a private right or to prove

that he has suffered proprietary or pecuniary damage. To

deny standing would deny to an important category of modern

public statutory duties an effective procedure for curial

enforcement....

A plaintiff must show that he has been specially affected,

that is, in comparison with the public at large he has been

affected to a substantially greater degree or in a

significantly different manner. It is not necessary to show

that the plaintiff is uniquely affected; there may be some

others whose interests may be affected in like manner. This

will be the case where a statute protects the interests of a

class, stopping short of conferring personal rights upon the

members of the class."

61. While Onus v Alcoa involved a very different factual situation from that in ACF v Commonwealth, the observations of Stephen J emphasise the need to assess the nature of the applicant's concern with and relationship to the subject matter. The observations of Brennan J accept that modern legislation often protects non-material interests, and that an applicant will have standing to complain of an alleged breach if there is an "affection or threatened affection" of the applicant's interests by the apprehended breach of duty. (See also Re McHatten and Collector of Customs (NSW) (1977) 1 ALD 67 (AAT/ Brennan J), at 69-70.) These formulations require a close examination of the circumstances of an individual case and are inconsistent, in my opinion, with any rigid or easily identifiable dividing line.

62. The authorities interpreting the phrase "person aggrieved" in the ADJR Act have taken a generous view of its scope, certainly no less broad than that articulated in Onus v Alcoa. The authorities have recently been reviewed by Lindgren J in Right to Life Association (NSW) Inc v Secretary of the Commonwealth Department of Human Services and Health, (1994) 125 ALR 337 (FCA/Lindgren J), at 347 ff. I have drawn in part on his Honour's helpful analysis.

63. The term "person aggrieved" is not to be given a narrow meaning. It covers a person who can show a grievance which will be suffered as a result of the decision, beyond that which he or she has as an ordinary member of the public: Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 (FCA/Ellicott J), at 79; Ricegrowers Co-Operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535 (FCA/Full Court), at 539-540. In considering the scope of s.13 of the ADJR Act, it is appropriate to take into account that it is a remedial provision, contrasting with the limited common law obligation of a decision maker to give reasons; it is not "to be construed grudgingly or with a penchant for technicality": Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 (FCA/Gummow J), at 130, per Gummow J. The ADJR Act should not be read as formulating a narrower criterion than the principles governing legal and equitable remedies in public law. As Gummow J said in Institute of Marine Engineers (at 132-133):

"the ADJR Act is ambulatory in its operation and draws

within its scope a diverse and extensive collection of

decision making processes, truly an unclosed class. Too

rigid a criterion of locus standi will threaten to stultify

the utility of the procedures the ADJR Act offers...(M)uch

depends upon the nature of the particular decision and the

extent to which the interest of the applicant rises above

that of an ordinary member of the public."

See also Ogle v Stickland (1987) 13 FCR 306 (FCA/Full Court), at 314-315, per Lockhart J.

64. The requirement that an applicant be a "person aggrieved" stipulates an involvement in the case greater than the concern of a person who is a mere "intermeddler or busybody". The reason why the expression "person aggrieved" does not extend to a person who has no greater grievance than he or she would suffer as an ordinary member of the public is that anyone at all would apply for relief under the ADJR Act, at considerable cost to government: Ogle v Strickland, at 315, per Lockhart J (although his Honour was careful not to embrace the "floodgates" argument). But the ADJR Act employs the broadest of technical terms, indicating that the required interest need not be legal, proprietary, financial or otherwise tangible. Nor need it be peculiar to the particular applicant: United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79 (FCA/Full Court), at 86.

65. It is the application of these statements of general principle that gives rise to difficulty. However, the extent to which non-financial and non-proprietary interests can suffice to establish a special interest is illustrated, in my opinion, by two cases in particular.

66. In Ogle v Strickland, an Anglican priest and a Roman Catholic priest sought to challenge the decision of the Censorship Board relating to the importation into Australia of an allegedly blasphemous film, called "Je Vous Salue Maria" ("Hail Mary"). Fisher J, in holding that the priests had standing, expressly adopted the approach taken by Stephen J in Onus v Alcoa (at 308):

"In these circumstances it is not surprising that minds may

differ when determining whether a "special interest" has

been established. The curial assessment which Stephen J

perceived as involved requires value judgments to be made,

in particular when assessing matters of weight and

proximity. This Court is required to make for itself such

assessments and judgments, even in circumstances such as the

present when, as I see it, the trial judge correctly

identified the relevant principles of law.

...

I am of the opinion that the appellants do stand in a

different position from other members of the community to

profess the Christian faith. I attach significance to the

fact that as priests and teachers their interest and their

interest and their activities are not limited merely to

professing the Christian faith. Their interest in my

opinion extends beyond that of other members of the

Christian community whose limited concern could be fairly

described as only "intellectual or emotional".... The

vocation and professional calling of the appellants being

more than an intellectual or emotional concern requires

greater weight to be given to their interest in the subject

matter of the film and in the question whether it is

blasphemous. They have, in the words of Stephen J, a

"closer proximity" to this subject matter than other members

of the community. This interest, in my view, should be

recognised by the courts."

67. Lockhart J, with whom Fisher J expressed general agreement, after referring to the authorities, noted that blasphemy was an indictable misdemeanour at common law. His Honour concluded that the priests were in a special position in relation to the film (at 318):

"The appellants are in holy orders in hierarchical Christian

churches. As ministers of religion they are in a special

position compared with ordinary members of the public in

that it is their duty and vocation to maintain the sanctity

of the Scriptures, to spread the Gospel, to teach and foster

Christian beliefs and to repel or oppose blasphemy.

Blasphemy is the denial of the basic tenets of the Christian

faith. The doctrines and teachings of the Christian faith

are of "great cultural and spiritual significance" to the

appellants (to adopt the language of Stephen J in the Onus

case...and certainly are of no less significance to

Christians than were the Aboriginal relics to the

Gournditch-jmara community in the Onus case.... The

appellants are not meddlers or "busy bodies". Nor are they

people who have mere intellectual or emotional concern about

the film. Their position is therefore different from the

position which the High Court perceived the Australian

Conservation Foundation to have in the Australian

Conservation Foundation case .... The decisions impugned in

this case have a greater effect upon the appellants than

they have upon ordinary members of the public. It is true

that the appellants have no special interests in the subject

matter of the decision in the sense of legal or equitable

rights or proprietary or pecuniary interests; but they are

persons aggrieved because to repel blasphemy is a necessary

incident of their vocation. To deny them standing would

deny an important class in the community an effective means

and procedure for challenging decisions of the kind involved

in this case.

Whether members of the community who profess the Christian

faith, but are not ministers of religion or otherwise part

of the hierarchy of a Christian denomination, would have

standing to bring a case of this kind is for me an open

question which I do not find it necessary to decide. It

must be kept in mind, however, that some Christian sects

have little or no hierarchical structure, yet their

followers are devout believers in their religious teachings.

To deny them standing is a conclusion which would not be

lightly reached, but I prefer to express no view on the

question as it does not arise and was only briefly touched

on in argument."

68. Wilcox J expressed the view that there was nothing in the authorities to prevent the Court from discarding altogether the requirement of special damage or special interest (at 321). In his view, if a plaintiff or applicant was incapable of representing adequately the interest he or she espoused, the answer was to refuse that claim on discretionary grounds, rather than to deny standing "to the many" with non-financial concerns (at 324). His Honour found in favour of the standing of the priests on a wider basis than either Fisher J or Lockhart J:

"the allegation is that the film makes its denials in such a

scurrilous and offensive form as to pass the limits of

decent controversy and to outrage the feelings of committed

Christians. The appellants are committed Christians. They

are susceptible, therefore, to an offence and to an outrage

which would not be shared by non-believers. Upon their case

they, with other believers, have suffered from the release

of the film a damage different in kind from the general

damage which is suffered by all members of the community

when the law is breached; and this special damage arises out

of matters of spiritual concern.

As it happens the appellants are also priests; that is, they

are persons who have dedicated their lives and their talents

to the propagation of beliefs some of which, they claim, are

denied by the film. If it were necessary for them to do so,

they would, I think, be entitled in relation to standing to

rely upon the frustration of their professional activities

which, on their case, the film will occasion. But I prefer

not to rest my decision upon this additional factor. It

seems to me that the damage they claim to sustain as

Christians is enough."

69. The majority view in Ogle v Strickland clearly distinguishes between the position of committed Christians in general and the vocation and professional calling of applicants, although Lockhart J regarded the standing of committed Christians as an open question. In Cameron v Human Rights and Equal Opportunity Commission [1993] FCA 593; (1993) 119 ALR 279 (FCA/Full Court), at 288, Beaumont and Foster JJ, with whom French J generally agreed, emphasised the significance of the direct professional and vocational interest of the applicants in Ogle v Strickland to the decision in that case.

70. Yet there is, in my respectful opinion, at least an argument that the applicants' vocation as priests does not provide an entirely satisfactory basis for according standing to them to challenge a decision offensive to their religious or spiritual values. As Lockhart J observed (at 318), some Christian religions have no hierarchical structure. Many non-Christian religions are in the same position, bearing in mind the breadth of the definition of "religion" propounded in Church of the New Faith v Commissioner of Pay-roll Tax (Victoria) [1983] HCA 40; (1983) 154 CLR 120, at 136, per Mason ACJ and Brennan J. It would be curious if adherents of non-hierarchical religions, or of those religions that have no vocational structure, were to be denied standing to complain of decisions they find deeply offensive to their spiritual or religious values.

71. In this connection I appreciate that Lockhart J, with whom Fisher J "generally" agreed, referred (at 317) to the fact that blasphemy - the publication of scurrilous and offensive words about the Christian religion calculated to outrage the feelings of a believer in Christianity - is an indictable misdemeanour at common law. One basis for confining the decision is that it rests on the special position of blasphemy at common law and therefore the special position, for the purposes of standing, of those who have a vocational interest in repelling blasphemy. Yet it is difficult to accept, in the last years of the twentieth century, that standing to complain of decisions that are offensive to spiritual or religious values should depend upon the peculiar historical position of blasphemy. In Australia, the law and, indeed the guarantees in s.116 of the Constitution, accept the concept of "complete religious liberty and religious equality": Church of the New Faith, at 131, per Mason ACJ and Brennan J.

72. If Ogle v Strickland is not to be confined to cases of blasphemy, it seems to me that the decision has implications going beyond the field of religious beliefs. In Church of the New Faith, Mason ACJ and Brennan J said (at 132) that the protection of the law

"is accorded to preserve the dignity and freedom of each man

so that he may adhere to any religion of his choosing or to

none".

73. This suggests, not only that the law not distinguish between different religions, but that cultural and spiritual beliefs, of the kind that may confer standing to challenge decisions offending those beliefs, can be non-religious in character. If an organised group regards the preservation of the environment in general, or of an area in particular, to be of profound cultural and spiritual significance, how does their standing to challenge decisions threatening the values to which they adhere, differ from the position of the applicants in Ogle v Strickland? And if the distinction between a vocational interest in a set of values and an interest based on a deeply held but non-vocational commitment to those same values is unsound, why should organisations genuinely committed to the preservation of the environment be denied standing to complain of (or to claim reasons for) decisions that offend their values? In the end, I do not think it necessary to answer these questions in this case, but in my opinion Ogle v Strickland poses them.

Australian Conservation Foundation v Minister for Resources

74. ACF v Minister for Resources was a case with many similarities to the present. The Minister granted a licence to Harris Daishowa (Australia) Pty Ltd for the export of 850,000 tonnes of woodchips per annum, with an assurance that this volume could be exported for 17 years. The woodchips were to be obtained by logging two State forests, that were part of the National Estate under s.31 of the Australian Heritage Act 1975. The first applicant was the Australian Conservation Foundation Inc. ("ACF"), precisely the same body as was the plaintiff in ACF v Commonwealth. The second applicant owned property adjoining one of the State forests. Each claimed that the Minister's decision had infringed s.30 of the Australian Heritage Act 1975, which prohibited action affecting the National Estate unless the Minister was satisfied, inter alia that there was no feasible and prudent alternative.

75. Davies J held that the ACF had standing. He also held, with respect, somewhat surprisingly, that the landowner did not have standing. (On this point the reasoning of Davies J was not followed by Wilcox J in Yates Security Services Pty Ltd v Keating [1990] FCA 432; (1990) 98 ALR 21 (FCA/Wilcox J), at 45; the decision of Wilcox J was affirmed on appeal without reference to ACF v Minister: Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 (FCA/Full Court). Davies J rejected a submission that ACF v Commonwealth laid down as a matter of law that the ACF had no standing in a case such as the one before him. What had to be examined was whether or not ACF had a special interest in the subject matter of the application, in accordance with the principles stated by Stephen J in Onus v Alcoa.

76. Davies J noted (at 73) that the controversy underlying the dispute was "one of the major environmental issues of the present time". The two State forests were, by statute, regarded as part of the National Estate.

"Thus, the present issue is not a local issue such as may

have been involved in the A.C.F. case. And, in the decade

that has passed since the A.C.F. was denied standing to

protect the wetlands at Farnborough in Central Queensland,

public perception of the need for the protection and

conservation of the natural environment and for the need of

bodies such as the A.C.F. to act in the public interest has

noticeably increased, and is demonstrated by the growth of

the A.C.F. itself since the time of the A.C.F. case."

77. Davies J went on to say that the evidence indicated that the ACF was the major national conservation organisation in Australia and had been established with a view to reconciling the use and exploitation of resources with the conservation of the natural environment. Its "forward plan" stated its purpose and philosophy as being "to ensure ecological sustainability". Davies J went on (at 73):

"No doubt because this is the function of the A.C.F., the

A.C.F. receives substantial annual funding from both

Commonwealth and State governments.... The A.C.F. is no

mere association of individuals having like views. The

A.C.F. is a large enterprise. The A.C.F.'s income for the

1988/89 year was $2,775,599 and its expenditure for that

year $2,727,555."

78. Having referred to some of the ACF's activities which had been undertaken "with a view to obtaining a proper strategy for the exploitation and conservation of the South East forests", Davies J continued on (at 74):

"While the A.C.F. does not have standing to challenge any

decision which might affect the environment, the evidence

thus establishes that the A.C.F. has a special interest in

relation to the South East forests and certainly in those

areas of the South East forests that are National Estate.

The A.C.F. is not just a busybody in this area. It was

established and functions with governmental financial

support to concern itself with such an issue. It is

pre-eminently the body concerned with that issue. If the

A.C.F. does not have a special interest in the South East

forests, there is no reason for its existence."

79. Moreover, Davies J stated that in determining standing, it is necessary to take account of current community perceptions and values.

"In my opinion, the community at the present time expect

that there will be a body such as the A.C.F. to concern

itself with this particular issue and expects the A.C.F. to

act in the public interest to put forward a conservation

viewpoint as a counter to the viewpoint of economic

exploitation" (at 74).

80. In my opinion, there is nothing in the reasoning of Davies J in ACF v Minister, so far as the standing of the ACF is concerned, that is inconsistent with the decision of the High Court in ACF v Commonwealth. Davies J, as a member of the Full Court, has referred to his own earlier decision with approval: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 121 ALR 373 (FCA/Full Court), at 382. In my respectful opinion, the reasoning should be followed, although it is necessary to consider carefully the factual differences between that case and the present.

81. I have already said that, although ACF v Commonwealth should be read in the light of the submissions with which the High Court was concerned, its authority cannot be ignored. Furthermore, although cases interpreting the phrase "person aggrieved" in the ADJR Act have used broad language, it has never been held that the principles governing the award of declarations and injunctions under the general law have been superseded by different and broader conceptions under the ADJR Act. (Such an argument was put in Ogle v Strickland, at 307, but not specifically addressed.)

82. In my view, certain principles relevant to the present case have been established by ACF v Commonwealth.

* First, North Coast must demonstrate a "special interest" in the

subject matter of the action" (at 530, 547-548). A "mere

intellectual or emotional concern" for the preservation of the

environment is not enough to constitute such an interest (at 530).

The asserted interest must go beyond that of members of the public

in upholding the law (at 526) and must involve more than genuinely

held convictions (at 539). See Yates Security Services Pty Ltd v

Keating, at 9, 19.

* Secondly, a person may be able to demonstrate a "special interest"

in the preservation of a particular environment (at 530). For

this purpose, as Onus v Alcoa (at 41) allows, an intellectual or

emotional concern is no disqualification from standing to sue.

* Thirdly, to the extent (if any) that North Coast relies on

possible non-compliance with the Administrative Procedures,

neither the Environment Protection Act (with the possible

exception of s.10) nor the Administrative Procedures themselves

confer any private rights enforceable by individuals (at 524-525,

542, 547). An allegation of non-compliance with the Environment

Protection Act or Administrative Procedures is not enough of

itself to confer standing on North Coast.

* Fourthly, the fact that a person makes comments on an EIS produced

pursuant to directions given under the Administrative Procedures

does not of itself confer standing on that person to challenge or

complain of a decision resulting from the environmental assessment

process (at 531, 540-542). Thus, North Coast's role as a

commentator on Sawmillers' draft EIS does not, without more,

confer standing to challenge the decision to grant Sawmillers an

export licence or, presumably, to require reasons for such a

decision.

* Fifthly, an organisation does not demonstrate a special interest

in the environment sufficient to establish standing simply by

formulating objects that demonstrate an interest in and commitment

to the preservation of the physical environment. Otherwise, it is

likely that the ACF would have had standing to complain of the

decision to approve the exchange control transaction relating to

the development at Farnborough.

83. It follows that, in order to show a special interest in the subject matter of the litigation, North Coast cannot rely solely on its objects, its role as commentator in Sawmillers' EIS or any complaint made by it about possible non-compliance with the statutory procedures. North Coast's case is not, however, confined to these matters. It points to other factors demonstrating (in the language of Stephen J in Onus v Alcoa) the importance of its concern with the subject matter of the decision and the closeness of its relationship to that subject matter.

84. In my opinion, the most significant of these facts are the following:

* First, North Coast is the peak environmental organisation in the

North Coast region of New South Wales, having 44 environmental

groups as members. Its activities relate to the areas affected by

the operations generating the woodchips that are the subject of

the export licence granted to Sawmillers.

* Secondly, North Coast has been recognised by the Commonwealth

since 1977 as a significant and responsible environmental

organisation. This recognition has taken the form of regular

financial grants for the general purposes of the organisation.

While the grants have been modest, they have been recurrent and

reflect acceptance by the Commonwealth of the significance of the

role played by North Coast in advocating environmental values.

* Thirdly, North Coast has been recognised by the government of New

South Wales as a body that should represent environmental concerns

on advisory committees. The most important form of recognition

for present purposes has been membership of North Coast's nominees

on the Forestry Policy Advisory Committee, the role of which is to

advise the State Minister on forestry matters, including the

management of State forests. This and other forms of

participation in official decision-making processes show that the

State government has accepted North Coast as a representative of

environmental interests.

* Fourthly, North Coast has conducted or co-ordinated projects and

conferences on matters of environmental concern, for which it has

received significant Commonwealth funding. While these have not

specifically concerned forest management or woodchipping, they

reflect North Coast's standing as a respected and responsible

environmental body.

* Fifthly, independently of North Coast's long involvement with

successive licences granted to Sawmillers, it has made submissions

on forestry management issues to the Resource Assessment

Commission and has funded a study on old growth forests, focussing

upon the Wild Cattle Creek State Forest.

85. Mr Heydon quite correctly pointed to differences between North Coast's role as an environmental organisation concerned to protect forests, and the characteristics of the ACF regarded by Davies J in ACF v Minister as supporting its claim to standing in that case. The major differences are greater Commonwealth funding for ACF (North Coast received $10,188 in general grants for 1993/94, compared with $197,463 for the ACF); ACF's much more substantial income ($2.78 million in 1988/89, while I would infer that North Coast's total income is very modest); ACF's role as "pre-eminently the body concerned with" South East forests that are National Estate (at 74), while North Coast's role is purely regional; ACF's position as a national body, while North Coast is only one of 82 members of the NCC, the peak State conservation body; the fact that North Coast, reflecting its limited resources, employs no staff; and the further fact that Commonwealth and State support for North Coast does not extend to projects specifically concerning forestry matters or woodchipping.

86. I do not seek to understate the significance of these matters. North Coast clearly does not have the same characteristics as the ACF was shown to have in ACF v Minister. The differences show that the present case is closer to the line where a special interest in the subject matter of the action ends. Nonetheless, I think North Coast has shown enough to demonstrate that it is a person aggrieved in relation to its claim to reasons for the decision to grant Sawmillers an export licence.

87. North Coast's concerns are, in my opinion, far more than mere "intellectual or emotional". It is recognised by both the Commonwealth and State as a responsible environmental organisation, deserving of financial support and participation in government decision-making processes. It is recognised by the State as a body with a particular concern in the management of forests, including State forests and private lands. This is important in the present case because the very decision in respect of which reasons are sought concerns woodchips sourced from State forests and private lands. Thus North Coast has a particular interest in the decision which gave rise to the request for a statement of reasons. North Coast, independently of its opposition to Sawmillers' licence, has examined forestry issues in submission and research activities. The evidence shows that North Coast has had a keen interest in woodchipping operations for a number of years. While its expressed opposition to Sawmillers' operations does not suffice of itself to confer standing on North Coast, its opposition over a long period, in combination with its other activities, illustrates a strong commitment to the values it regards (whether rightly or wrongly) as under threat by the licence granted to Sawmillers.

88. I do not regard the fact that North Coast's activities are regional rather than national as disqualifying North Coast from having standing to pursue its claim to a statement of reasons for the decision to grant Sawmillers a licence. Indeed, a regional organisation may well be able to demonstrate a closer concern with a particular decision affecting or potentially affecting the environment than a national organisation with a broad and diverse range of interests. In this case North Coast, in my opinion, has demonstrated a specific concern with and interest in the preservation of forests in its "defined area" of activities.

89. Nor do I think it crucial that North Coast's activities are on a smaller scale than those of the ACF. Its activities relate to a large area of the State. It consists of some 44 smaller organisations, and represents their interests and concerns. A large income and paid staff may be strong indicators of a responsible body, recognised by the community as having a special interest in particular environmental matters. But they are not the only indicators. To hold otherwise would place an unjustified premium on attracting financial support, as opposed to other forms of commitment to environmental issues, including part-time organisational activities, research and consultation. In this connection it is, in my opinion, important to bear in mind the scope and purposes of the ADJR Act, as stated by Gummow J in Institute of Marine Engineers (at 132-133). It is not legislation which is intended to be exclusively for the benefit of large or national organisations.

90. Nothing has been said to cast doubt on North Coast's capacity to represent effectively, in a forensic sense, the interests it seeks to promote. To use the language of Davies J (at 74), North Coast is no mere busybody, and is well-placed to put forward a conservation viewpoint as a counter to the economic activities proposed and undertaken by Sawmillers. On the evidence there is no other conservation body with a greater interest or commitment to the issue raised by the grant of export licences to Sawmillers. There is no suggestion that North Coast is in competition with other conservation bodies to seek reasons for or challenge the decision of the Minister to grant an export licence to Sawmillers.

91. I should make brief additional references to two other cases. Unlike Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd, this is not a case where the public interest with which the ADJR Act (or, if it be relevant, the Environment Protection Act) is concerned, is irrelevant to North Coast's interests. On the contrary, the public interest reflected in the ADJR Act and the Environment Protection Act includes making known the reasons for decisions having a potentially adverse effect on the physical environment. North Coast's interests, far from being foreign to this public interest, are entirely compatible with it.

92. In my view, there is nothing inconsistent between the conclusion in this case and that reached by Lindgren J in Right to Life Association v Secretary. There his Honour characterised the concerns of the applicant with the chemical trials of a drug intended for "emergency postcoital contraception" as an "emotional and intellectual" concern (at 352). His Honour pointed out that the Association could not show funding or other recognition by government "as the representative of a particular public interest involved in the particular issue to which the impugned decision relates" (at 352). Furthermore, the Association's objectives did not coincide with the objects of the Therapeutic Goods Act 1989; the moral and ethical concern of the Association was not a public interest with which that Act was concerned (at 352-353).

93. In my view, North Coast is a "person aggrieved" for the purposes of the ADJR Act and was entitled to require the Minister to furnish reasons for his decision to grant a licence to Sawmillers to export woodchips for a period of three months from 30 June 1994. A declaration should be made in substantially the form sought by the applicant, as contemplated by s.13(4A) of the ADJR Act. In view of the provisions of s.13(4), I do not think that any further order is required. However, I shall give the applicant liberty to apply on 3 days' notice. The respondent should pay the applicant's costs.

Environmental Protection (Impact of Proposals) Act 1974

Environment Properties (Impact of Proposals) Act 1974

Decisions (Judicial Review) Act 1977

Charitable Collections Act 1934

Tax Assessment Act 1936

Planning and Assessment Act 1979

Species Protection Act 1992

Incorporation Act 1984

Heritage Commission Act 1975

Aboriginal Relics Preservation Act 1972

Australian Heritage Act 1975

North Coast Environment Council Incorporated v Minister of Resources [1994] FCA 1556;

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

North Coast Environment Council Incorporated v Minister of Resources [1994] FCA 1556; (1994) 36 ALD 533 (1994) 55 FCR 492 (16 December 1994)

Parties

Legislation Cited (13)

Cases Cited (14)