Administrative Appeals Tribunal - whether unincorporated associations are "persons" within meaning of s. 30(1A) of AAT Act - whether definition in s. 22 of Acts Interpretation Act applicable to s. 27(2) of AAT Act

Administrative Appeals Tribunal - relevant factors in exercise of s. 30(1A) discretion - increased financial burden on parties - whether joinder of bodies will hinder expeditious hearing of application for review - whether interest of applicants for joinder are substantially similar - whether absence from AAT Act of provision for costs relevant - whether appropriate to order one representative for a number of different parties

Whale Protection Act 1980 - meaning of "interested persons" in section 18

Words and Phrases:"persons whose interests are affected" "interested persons"

Whale Protection Act 1980 ss. 11, 18, 35

Administrative Appeals Tribunal Act 1975 ss. 27(2) & (3), 30(1A), 32, 44

Acts Interpretation Act 1901 s. 22(a)

Re Maunsell and Partners Pty. Ltd. and Export Development Grants Board (1980) 2 ALD 813

Re Control Investment Pty. Ltd. and Others and Australian Broadcasting Tribunal (No. 1) (1980) 3 ALD 74

Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67

Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493

Thorne v Doug Wade Consultants Pty. Ltd. [1985] VicRp 48; (1985) VR 433

R v Kirby; Ex Parte Boilermaker's Society of Australia [1956] HCA 10; (1956) 94 CLR 254

Re "C" and Collector of Customs (New South Wales) (No. N83/145: decided on 25 July 1983)

Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289

WHEREAS Animal Liberation Victoria Inc., Greenpeace Australia Inc. and Australian Conservation Foundation Inc., being bodies corporate, and Whale Rescue Centre, Dolphin Freedom Campaign, Project Jonah (Victoria), Australian and New Zealand Federation of Animal Societies and Lake Tyers Dolphin Protection Group, being unincorporated associations of persons, have applied pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made parties to the proceeding on the review by the Administrative Appeals Tribunal of a decision of the Minister for Arts, Heritage and the Environment refusing to grant to Marine World Victoria Limited a permit under the Whale Protection Act 1980 to take cetaceans in Commonwealth waters for live display and educational purposes;

(a) upon its compliance with paragraph (b) of this order but not otherwise, each of the aforesaid

bodies corporate and unincorporated associations

of persons shall become a party to the said

proceeding;

(b) each of the aforesaid bodies corporate and unincorporated

(i) within 28 days of the date of this order

lodge with the Tribunal a written

undertaking that it will be represented at

the hearing of the said proceeding by the

same person as each of the other aforesaid

bodies corporate and unincorporated

associations of persons and by no other

person, and that its case at the said

hearing will be conducted by that person and

not any other person; and

(ii) within 56 days of the date of this order

lodge with the Tribunal an instrument in

writing signed by or on behalf of it and of

all the other aforesaid bodies and

associations which have lodged a written

undertaking in compliance with sub-paragraph

(i) above, nominating one person to whom, or

one body corporate or one unincorporated

association of persons to which, all notices

in respect of the said proceeding may be

sent and on which any documents required to

be served may be served.

On 10 February 1986 Marine World Victoria Limited ("Marine World") applied to the Administrative Appeals Tribunal, pursuant to section 35 of the Whale Protection Act 1980 ("the Whale Protection Act"), for review of a decision of the Minister for Arts, Heritage and the Environment, made on 19 October 1984, refusing to grant it a permit under section 11 of that Act to take cetaceans in Commonwealth waters for live display and educational purposes. A number of bodies corporate and unincorporated associations of persons have applied under section 30(1A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") to be made parties to the proceeding. Their applications for joinder were heard together. At the hearing Mr A. L. Cavanough, of Counsel, represented Marine World and Mr A. Santospirito, an officer of the Australian Government Solicitor's Office, represented the Minister.

2. The bodies and associations applying to be made parties are:-

Australian and New Zealand Federation of Animal Societies;

Australian Conservation Foundation Inc.;

Project Jonah (Victoria);

Greenpeace Australia Inc.

Dolphin Freedom Campaign;

Whale Rescue Centre;

Animal Liberation Victoria Inc; and

Lake Tyers Dolphin Protection Group.

3. At the hearing some of the applicants did not have copies of the constitutional documents stating their objects or purposes. An order was made for them to lodge those documents with the Tribunal within 14 days. They were also invited to lodge submissions as to the statutory provisions relevant to their applications and as to the application of those provisions to their respective interests. Marine World was also invited to lodge a submission as to those matters. In the event all the applicants who had not tendered the relevant documents at the hearing lodged them afterwards. A joint submission was lodged by Project Jonah (Victoria), Greenpeace Australia Inc., Whale Rescue Centre, Lake Tyers Dolphin Protection Group, Dolphin Freedom Campaign and Animal Liberation Victoria Inc. Separate submissions were lodged by the Australian Conservation Foundation Inc. and the Australian and New Zealand Federation of Animal Societies, and a further submission by Project Jonah (Victoria). A submission prepared by Mr Cavanough was lodged by Marine World.

4. Section 30(1A) of the AAT Act is as follows:-

"30. (1A) Where an application has been made by a

person to the Tribunal for a review of a decision,

any other person whose interests are affected by the

decision may apply, in writing, to the Tribunal to be

made a party to the proceeding, and the Tribunal may,

in its discretion, by order, make that person a party

to the proceeding."

5. Section 27 of the AAT Act states what persons may apply to the Administrative Appeals Tribunal for review of administrative decisions; it contains as sub-section (2) the following provision:-

"27. (2) An organization or association of persons,

whether incorporated or not, shall be taken to have

interests that are affected by a decision if the

decision relates to a matter included in the objects

or purposes of the organization or association."

That sub-section is qualified by sub-section (3) which reads:-

"27. (3) Sub-section (2) does not apply in relation

to a decision given before the organization or

association was formed or before the objects or

purposes of the organization or association included

the matter concerned."

6. Section 31 of the AAT Act provides for the Tribunal to decide whether a person's interests are affected by a decision under review. If it decides in his favour, its decision is conclusive of the question. If it decides against him, he may appeal against that decision to the Federal Court under section 44(2).

7. Section 11 of the Whale Protection Act 1980 provides that the Minister may grant a permit authorising the taking of whales for live display for scientific or educational purposes; however, his power to do so is subject to the provisions of section 18. The application by Marine World related to a number of false killer whales and dolphins. Both species are within the definition of "whale" in section 3 of the Whale Protection Act. Section 18 requires that a person applying for a permit is to publish in each State and internal Territory in a newspaper circulating generally therein a notice setting out the particulars of the application and inviting interested persons to lodge with the Minister written comments in respect of it. It requires the Minister to cause copies of any such comments to be served on the person applying for the permit and for the Minister, before deciding whether or not to grant the application, to give due consideration to any comments received and to any response to them communicated to him by the person applying for the permit. Marine World published a notice of its application in accordance with the requirements of section 18. All the bodies which have applied to be made parties in the present proceedings lodged written comments with the Minister.

8. The provisions of section 30(1A) have been considered by the Administrative Appeals Tribunal in a number of cases. In Re Maunsell and Partners Pty. Ltd. and Export Development Grants Board (1980) 2 ALD 813 the Tribunal considered an application by the Australian Professional Consultants Council to be made a party in a proceeding which concerned decisions by the Export Development Grants Board to refuse to allow Maunsell and Partners Pty. Ltd. further time in which to lodge claims under the Export Market Development Grants Act 1974. The Tribunal rejected the Council's application to be made a party; it decided that the interests of the Council were not affected by the Board's refusal to allow the company further time to submit its claims. The Council's objects indicated that it was interested in the provision of services by members in overseas countries; but the decisions under review did not relate to more than the extension of time for submission of the claim. The Tribunal said at page 818:-

"Although, in the popular understanding of the word,

the Council may be 'interested' in the outcome of

this review, the Tribunal did not consider that the

Council was a person whose interests were affected by

the decisions under review. Those decisions did not

relate to a matter included in the objects or

purposes of the Council. The Council was not

affected by the decisions and, although it is an

object of the Council to promote and protect the

interests of its members, the interests of the

Council were not affected simply because one of its

members was affected."

9. In Re Control Investment Pty. Ltd. and Others and Australian Broadcasting Tribunal (No. 1)(1980) 3 ALD 74 applications were made by the members of the Federal Executive of the Australian Labor Party, by the members of the Victorian State Executive of the Australian Labor Party and by the State and Federal Branches of the Australian Labor Party, by an unincorporated association called "Justice in Broadcasting", by the Australian Journalists Association and by Rupert Public Interest Movement Incorporated to be made parties to a proceeding before the Tribunal in which the News Group of companies was seeking review of a decision of the Australian Broadcasting Tribunal refusing to approve certain transactions relating to a television licence. At that time section 30 of the Administrative Appeals Tribunal Act did not contain sub-section (1A); but provision for application to be made a party to the proceeding was made by sub-section (1)(c). In effect any person who was entitled to apply to the Tribunal under section 27 for a review of the decision in the proceeding was entitled to be made a party. The Tribunal observed that, if a person's interests were affected by a decision under review and that person applied to be made a party to the proceeding, it was ordinarily the duty of the Tribunal to make an order joining that person as a party. However, that was subject to other obligations imposed on the Tribunal by the AAT Act, in particular the function which the Tribunal had to perform and its duty to provide a fair hearing and to carry out reviews as expeditiously as their subject matter permitted.

10. The Tribunal quoted a passage in the decision of Brennan J. (as President of the Tribunal) in Re McHattan and Collector of Customs (NSW)(1977) 1 ALD 67 at page 70:-

"However, a decision which affects interests of one

person directly may affect the interests of others

indirectly. Across the pool of sundry interest, the

ripples of affection may widely extend. 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."

It observed that in their context in sections 27 and 30 the words "interests are affected" denoted interests which a person had other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. However, it held that the interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. The nature of the interest required in any particular case would be influenced by the subject matter and context of the decision under review.

11. Accordingly, the Tribunal decided that the interests of the Australian Labor Party were affected by the decision under review in those proceedings for three reasons. First, it had contended that control of media interests affected political parties; second the party had played a part in the proceedings before the Australian Broadcasting Tribunal; and, third, the decision under review related to matters included within the objects of the party. The Tribunal also decided that the interests of Justice in Broadcasting and the Australian Journalists Association were affected as the decision under review related to a matter included in their objects or purposes. Justice in Broadcasting had the object of "obtaining effective public access to the process of broadcasting". The Australian Journalists Association's objects included:-

"(2) uphold and defend the professional interests,

status and rights of members and usages and

customs of journalists;

(3) safeguard and advance the remuneration and

conditions of employment and industrial rights

and welfare of members;

. . . . .

(7) prescribe and enforce a Code of Ethics to ensure

and maintain ethical standards in journalism, in

television and in broadcasting."

12. By contrast, the objects of Rupert Public Interest Movement Inc. indicated that it was an association concerned principally with education and research into the accountability and responsiveness to the public of a broad category of institutions and organizations. Under the rules of the Association this education and research might concern itself with "the need for, and extent of, methods for determining the nature of the public interest in any question of importance to Australian citizens". The Tribunal held that, although no doubt the association had a considerable interest in how the Administrative Appeals Tribunal went about its task of determining the public interest and in the procedures of the Tribunal and might have an interest in putting forward a view that the Administrative Appeals Tribunal should undertake research into the public interest, it had no real or genuine interest in the decisions under review. Accordingly, it was not made a party to the proceeding.

13. Mr Cavanough suggested that the decision of the Tribunal to join Justice in Broadcasting as a party was wrong; that association's only interest in the decision under review had arisen from its object of obtaining effective public access to the process of broadcasting. He referred to Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 where the appellant had sued the Commonwealth for declarations, injunctions and other orders to challenge the validity of decisions concerning a proposal to establish and operate a resort in Queensland. The High Court of Australia decided that the appellant did not have standing to maintain the action. At page 530 Gibbs J. said:-

" . . . 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.

It is quite clear that when the rule is thus

understood, the Foundation has no special interest in

the preservation of the environment at Farnborough,

and of course none in Iwasaki's exchange control

transactions. Counsel for the Foundation sought to

show an interest in two alternative ways - first,

because of the nature of the Foundation and its

objects and, secondly, because of the fact that it

had sent written comments when the draft

environmental impact statement was made available for

public comment. The fact that the Foundation is

incorporated with particular objects does not

strengthen its claim to standing. 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."

The "rule" to which His Honour was referring was a rule as to standing to commence, without joining the Attorney-General as a party, an action in a court to obtain a declaration or an injunction, not for the purpose of asserting a private right but in order to prevent what is alleged to be a public wrong. The reference to the irrelevance of the Foundation's objects points clearly to the difference between that rule and the provisions of section 27 of the AAT Act.

14. Mr Cavanough referred also to Thorne v Doug Wade Consultants Pty. Ltd. [1985] VicRp 48; (1985) VR 433. In that case neighbouring landowners had statutory rights to oppose a proposed land development by way of objection to the local Council and by appeal to the Planning Appeals Board. The Supreme Court of Victoria held that the existence of those administrative remedies did not give the neighbours standing to sue in court. Mr Cavanough sought to draw an analogy between that situation and the situation in the present case. That argument overlooked two vital interrelated differences between the Tribunal and a Court. First, the Tribunal is itself part of the system of administrative decision-making, whereas the Court is not (see R v Kirby; Ex Parte Boilermaker's Society of Australia [1956] HCA 10; (1956) 94 CLR 254). Second the Tribunal is established to review certain administrative decisions; sections 27 and 30 set limits on those who can apply for, or be joined as parties in such applications for, review of those decisions. By contrast, before any person can bring an action in a court, he must have a cause of action, that is to say a right to seek a remedy. Standing to commence, or to be joined as a party in, court proceedings is one essential of such a right; it is to be ascertained by having regard to statute and the common law. In view of the different nature of the Tribunal's function and of the statutory provisions relating to the persons who may commence, or apply to be joined as parties in, proceedings in the Tribunal, the fact of an opportunity having been provided to influence the making of the decision under review is not to be regarded as necessarily exhaustive of the rights of "interested persons" so as to prevent their applying for, or being joined as parties in an application for, review of the decision.

15. Since the decision in Re Control Investment Pty. Ltd. the AAT Act has been amended by the insertion of sub-section (1A) in section 30 and by appropriate amendment of paragraph (c) of section 30(1). However, I am satisfied that the principles which the Tribunal is required to apply in considering the applications to be made parties in the present proceeding are to be decided in accordance with the principles stated in that case.

16. Mr Cavanough submitted that, in making its decision, the Tribunal should ignore the provisions of section 27(2). The relevance of those provisions in relation to section 30(1A) was touched on by the Tribunal in Re "C" and Collector of Customs (New South Wales) (No. N83/145: decided on 25 July 1983). There the Tribunal, constituted by Deputy President Todd, said:-

"I do not consider that, in the absence of s. 27(2),

the Institute could claim that its interests as such

could be affected by any decision that the Tribunal

might make in the present proceedings and I do not

think that the contrary was really contended by Mr

Anderson. It may be conceded that in the popular

understanding of the word the Institute may be

'interested' in the outcome of the review - see Re

Maunsell and Export Development Grants Board (1980) 2

ALD 813. But it does not follow that the Institute

has a real or direct interest, a genuine affection of

interest in the subject matter of the review. It

has, therefore, to rely upon the provisions of

s. 27(2) as set out above.

The Memorandum of Association of the Institute

includes as the first object for which the Institute

is established the following:

"I: To work in the elevation of the

profession of Customs' Agents by the

dissemination of professional knowledge and

the inculcation of sound practice and

generally to raise the status support

protect and advance the interests and the

profession of Customs' Agents generally."

That is the only object relied upon by Mr Anderson

for the purpose of s. 27(2). It is to be noted that

s. 27(2), while it has an impact upon the

interpretation of s. 30(1A), appears in the

Administrative Appeals Tribunal Act 1975 in tandem,

as it were, with s. 27(1) which is the provision

identifying the persons who have a right to apply for

review of a decision. It follows that a person

seeking to be made a party pursuant to s. 30(1A),

quite apart from the question of the exercise of

discretion, is in truth asserting that the person

would have been entitled to make the application in

the first place in his or her own right. This seems

to me to place some strain upon the claims of the

Institute that it is entitled by virtue of s. 27(2) to

claim that its interests are affected by 'a decision'

because that decision 'relates to a matter included

in the objects or purposes of the organisation or

association'."

17. That proceeding was an application by a customs agent for review of a decision to suspend his licence. The Tribunal observed that the Institute's submission in support of its application to be made a party tended to demonstrate that the arguments which it wished to advance were either:-

"(1) generally in relation to the legislation in

question and how it is administered; or

(2) specifically in relation to the decision in

question as to the particular merits of the

decision to suspend the applicant's licence."

"As to the first, the general category, they

demonstrate a lack of real affection of the

institute's interests so far as the particular

decision is concerned. As to the submissions in

relation to the particular decision, they demonstrate

to me the dangers of making other persons parties to

an application for review where particular rights are

in question."

19. My understanding of what was said by Deputy President Todd in that case is that he accepted that the provisions of section 27(2) had to be taken into account by the Tribunal when it was considering an application made under section 30(1A) to be made a party to a proceeding before the Tribunal. However, careful attention had to be paid to the objects or purposes of the organization or association seeking to be made a party and to the decision under review to ensure that the decision did in fact relate to a matter included in those objects or purposes. That was especially of importance where particular rights of the person who had applied for the review were in question. I accept that that is the manner in which the provisions of section 27(2) are to be taken into account in considering the applications to be made parties in the present proceeding.

20. In this proceeding the context of the decision under review is the Whale Protection Act. The issue is whether a permit should be granted to Marine World to take a number of false killer whales and dolphins for live display and educational purposes. The Act contains express provision for "interested persons" to lodge with the Minister written comments in respect of applications for such permits. The Minister clearly regarded as "interested persons" for the purposes of section 18(1)(b) members of the public concerned for the welfare and well-being of whales and dolphins. In the second-reading speech when the Bill for the Whale Protection Act debated by Parliament the former Minister said:-

"Provision is made for public comment in relation to

the issuing, variation and revoking of permits. The

applicant, or permit holder, will receive copies of

comments and will have an opportunity to respond.

All of this information will be considered before a

decision is made." (emphasis added)

21. I am satisfied that the expression "interested persons" in section 18(1)(d) encompasses members of the public concerned with the welfare and protection of whales. That does not mean, however, that, for the purposes of section 30(1A) of the AAT Act, the interests of every person with such a concern are affected by a decision made to grant a permit under section 11 of the Whale Protection Act. The interests of a body which exists solely or largely to contribute in a practical manner to the advancement of the welfare and protection of whales may be seen to be affected by such a decision, whereas those of persons who have done nothing more than to experience feelings of concern and to express them to the Minister under section 18 may be seen as not affected in the manner required by sections 27 and 30(1A).

22. The objects of Project Jonah (Victoria) include "to take all steps and do all things necessary or desirable to assist the preservation and conservation of all species of whales throughout the world" and, in addition to other specified objects, "to do all such other things as are incidental or conducive to the attainment of the objects and the exercise of the powers of the Association". Dr S. Whiteside, who presented the association's arguments in support of its application to be made a party, said that, if Marine World's application for a permit to take false killer whales and dolphins for live display were granted and the whales and dolphins were taken from particular areas, local populations of those species could be threatened thereby. Also viewing whales and dolphins in an artificial environment encouraged an attitude among the public which was detrimental to dolphins and whales in the wild.

23. The objects of the Australian Conservation Foundation Inc. include "to foster the conservation of the distinctive vegetation and fauna and important natural and archeological features of Australia" and "generally to take such action as it considers necessary or appropriate in the interests of promoting conservation". Mr Rawlinson, representing the Foundation, said that, if the permit to take whales and dolphins for live display were granted, it would allow the removal of a number of whales and dolphins for a commercial purpose. The Foundation regarded that as inimical to conservation of those species.

24. Mr Rawlinson also presented arguments in support of the application by the Australian and New Zealand Federation of Animal Societies to be made a party in the proceeding. The principal aim and object of the Federation is stated in its constitution to be "to promote the cause of animal rights and welfare throughout Australia and New Zealand". The Federation, as its name implies, is a federation of associations; its membership is not open to individual persons. Mr Rawlinson informed the Tribunal that among its members were Project Jonah (Victoria), Greenpeace Australia Inc., Animal Liberation Victoria Inc. and the Whale Rescue Centre.

25. The objects of Greenpeace Australia Inc. include "to identify, research and monitor issues of importance affecting marine mammals, other endangered species, and the environment generally", "to develop and implement programs to aid in the protection of marine mammals, other endangered species and the environment generally" and "to do all things as it may deem to be necessary and incidental or conducive in furtherance of the above purposes".

26. The Dolphin Freedom Campaign was started informally by Mr Roy Fuller and his daughter about three years ago. It was formally established with a constitution in February 1985. Its "aims and objectives" are stated in the constitution as including:-

"The release of all sea animals now in captivity, even

if this means extensive retraining for these animals

to suit them back into their natural lives.

The closure of all oceanariums as they are cruel and

unnecessary establishments.

The government . . . not . . . issue any permits

whatsoever for the capture and retention of (sea)

animals.

That no sea animal be used for . . . entertainment or

any form of monetary gain."

It is not clear how many numbers there are in the group. In a letter sent to the Tribunal after the hearing Mr Fuller said that he and his daughter personally sent comments to the Minister opposing the application for the permit. Members of the group had participated in anti-dolphin captivity action in Perth and distributed anti-captivity leaflets in December 1984. In November 1984 they had staged a public protest against Japan's decision to continue whaling operations. He tendered newspaper cuttings which showed that they took part in all those activities as members of - and in the name of - the Dolphin Freedom Campaign and that at that time it had the aims referred to above. I am satisfied that the group existed with those aims contemporaneously with the making of the decision of the Minister refusing to grant a permit to Marine World.

27. The Whale Rescue Centre is an association formed in 1982. Its constitution sets out its objects. They include "to seek to save the life, or to improve the quality of life, of any cetacean", "to seek to expand knowledge of cetaceans" and "to promote public awareness of cetaceans".

28. Animal Liberation Victoria Inc. was incorporated early in 1984 having existed as an unincorporated association from 1978. Among the purposes included in its Statement of Purposes are the following:-

"1. to abolish man's speciest (sic) attitudes and

practices.

2. to provide aid and assistance to species in

danger of exploitation by man."

29. Lake Tyers Dolphin Protection Group has about 30 members. It was formed in 1983, originally to protect three dolphins which were living in Lake Tyers. However, subsequently in July 1984 its objects were expanded to include "to actively assist wherever possible efforts to protect all cetaceans globally". Mr J. Whadcoat, who was instrumental with his wife in founding the group in 1983, informed the Tribunal that the group had collected 4,500 signatures of persons supporting a submission to the Minister objecting to a permit being granted to the applicant to take whales and dolphins for live display.

30. I am satisfied that all the bodies corporate and the unincorporated associations of persons which have applied to be made parties to the present proceeding can properly be regarded as "interested persons" for the purpose of section 18(1)(b) of the Whale Protection Act. They all sent written comments to the Minister which he took into consideration in deciding to refuse to grant a permit to Marine World under section 11 of that Act. They all have, in varying degrees, expertise in, and knowledge of the research which has been carried out into, characteristics of whales and dolphins, both as species and as individuals, relevant to the decision which is under review. They are properly concerned to ensure that the Tribunal is made aware of those characteristics, so that it can take them into account in coming to its decision on the review. I am satisfied that all of them have interests which are affected by the decision under review.

31. Mr Cavanough pointed out that section 30(1A) of the AAT Act authorises the joinder only of "persons". He submitted that, as an unincorporated association of persons is not a juridical person, section 30(1A) could not apply to it. He referred to the definition of "person" in section 22(a) of the Acts Interpretation Act 1901, which provides that the expression "shall include a body politic or corporate as well as an individual"; he pointed out that an unincorporated association is not a body corporate or a body politic. However, the definition is expressly stated to be applicable "unless the contrary intention appears". He referred the Tribunal also to Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289 where Gallop J. held that an unincorporated person could not apply for review of a decision to deport made under section 13 of the Migration Act 1958, as it was not a "person" for the purposes of section 66E of that Act, which governed the making of such applications. However, the terms of section 66E were such that they could apply only to natural persons. That is to be contrasted with the provisions of section 27(1) and (2) of the AAT Act, in the context of which section 30(1A) must be construed. Section 27(2) quite clearly indicates that in section 27(1) "person" is intended to include an unincorporated organisation or association of persons; so an unincorporated association can apply for review of a decision. That being so, it would be anomalous if an unincorporated association could not be joined as a party to a review proceeding. I have no doubt that in section 30(1A) the definition of "person" in section 22(a) of the Acts Interpretation Act is intended not to be applicable. The Tribunal has no power to award costs against any party to the proceeding; so the existence and identification of a person against whom an order for costs may be enforced is not required, as it may be in proceedings in a court where costs may be awarded. I am satisfied, therefore, that all the applicants are "persons whose interests are affected by the decision" for the purposes of section 30(1A).

32. However, whereas section 30(1)(c) originally required the Tribunal to make a person a party to a proceeding if he was a person whose interests were affected by the decision under review in that proceeding and he applied to be made a party, section 30(1A) now expressly gives the Tribunal a discretion whether or not to do so. That discretion must, of course, be exercised rationally with regard paid to all the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party. It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investment Pty. Ltd., the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits (see in particular section 33(1)(b) and section 39). The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account. The Australian and New Zealand Federation of Animal Societies submitted, somewhat sententiously, that, because the Whale Protection Act "was not established to facilitate or control commercial exploitation of cetaceans and does not allow it as a matter of right" but was established to protect cetaceans, "no limit should be placed on the number of conservation, animal welfare and animal rights groups to be joined (in the proceeding) solely on the grounds that this would affect Marine World financially". I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister's decision. Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.

33. There is also the requirement that the matter be dealt with expeditiously. That and the need to keep the cost within proper bounds make it undesirable that there should be a multiplicity of additional parties each separately represented and presenting a separate case. Only if their interests affected by the decision under review are both substantial and significantly different from one another can that be justified. The options open to the Tribunal in respect of the applications for joinder now before it are, I consider, either to prevent there being a multiplicity of parties by rejecting most of the applications or, while permitting a multiplicity of parties, to prevent there being a multiplicity of representatives of those parties presenting their cases at the hearing. If the first of those options were chosen, most of the applicants for joinder would be likely to feel that the Tribunal had discriminated against them. I consider that the second option is preferable and should be adopted.

34. There is no substantial difference between the affected interests of the bodies corporate and those of the unincorporated associations applying for joinder. At the hearing of their applications for joinder, their representatives were asked whether there were any such differences as would make it inappropriate for them to be jointly represented at the hearing of the application for review. A number agreed that the bodies and associations they represented should be represented at the hearing by whoever represented Project Jonah (Victoria). Others indicated a reluctance to be jointly represented and in some cases reiterated that reluctance in subsequent written submissions. However, the differences to which they referred were mainly in the scope of the objects and purposes of their respective bodies or associations rather than in the interest affected by the decision under review.

35. For instance, the Australian and New Zealand Federation of Animal Societies' representative stated that it wished to remain independent of the other bodies and associations because it represented bodies and associations in New Zealand as well as Australia, in addition to some of the bodies and associations which were themselves applying to be joined as parties. In a subsequent written submission it drew the following distinctions:-

(1) the national animal welfare and animal rights

movement, which it said that it represented;

(2) the national conservation movement, which it

suggested was represented by the Australian

Conservative Foundation; and

(3) the groups with an exclusive or special interest

in cetaceans which it suggested were represented

by Project Jonah "and five others".

The submission did not suggest how its interests which were affected by the decision under review differed from the interests of the other bodies and associations which were affected by it. Mr Levy, who represented the Whale Rescue Centre, said that, although to date its interest affected by the decision under review had been the same as that of Project Jonah (Victoria), there were differences in the way they handled different matters, particularly in regard to public relations and their methods of approaching the problem.

36. After considering all that was said at the hearing of the applications for joinder by the representatives of the bodies and associations making those applications, all that was contained in written submissions subsequently made by them and their objects and purposes as stated in their instruments of incorporation or their constitutions, I have come to the conclusion that, in respect of all the bodies and associations applying for joinder, there is no substantial difference in their interests affected by the decision under review.

37. Mr Cavanough pointed out that, if there is an appeal to the Federal Court under section 44 of the AAT Act against a decision of the Tribunal, costs in relation to the appeal can be awarded by the court. He submitted that, if unincorporated associations were joined as parties in proceedings before the Tribunal, difficulties could arise in the Federal Court in identifying the persons against whom orders for costs should be made. I would observe first that the AAT expressly provides for unincorporated associations to commence proceedings in the Tribunal; the difficulties referred to by Mr Cavanough did not deter the legislature from making that provision. Second, the difficulties are not insurmountable. If any of the parties joined were to appeal against the Tribunal's decision, the Federal Court could, if it thought fit, order that they give security for the payment of costs that might be awarded against them (see section 56 of the Federal Court Act 1976).

38. Section 32 of the AAT Act provides that at the hearing of a proceeding before the Tribunal a party to the proceeding may appear in person or may be represented by some other person. It is at least arguable that, once a person has been made a party to a proceeding, he is entitled to be represented as he chooses. It is, therefore, a factor which needs to be taken into account in the exercise of the discretion conferred by section 30(1A) in the present case. However, I consider that that does not preclude the Tribunal exercising its discretion under section 30(1A) not to make a person a party to the proceeding unless that person gives an undertaking, in advance of being made a party, that, if made a party, he will be represented at the hearing jointly with some or all the other persons joined. In the present case I am satisfied that it would be unfair to the applicant and would prevent the Tribunal from performing its functions under the Administrative Appeals Tribunal Act 1975 properly if any of the bodies or associations who have applied to be joined were made parties to the proceeding without their having first given such an undertaking. Accordingly, I have made an order in terms that the joinder of each of them is to take effect only after they have given such an undertaking and nominated one person, body or association to whom notices relating to the proceeding can be sent for all of them and that, if any of them does not give such an undertaking or make such a nomination, its application for joinder is rejected.