Consideration
20 The appellants argued that this reasoning involved a syllogism. First, sheep were part of the environment. Secondly, sheep needed protection from the cruelty and suffering of being transported by ship. Thirdly, it followed that the protection of sheep from such treatment was environmental protection. Mr Hahnhauser, who had not appeared at the trial, submitted, through his counsel who argued the appeal, that the meaning identified by the primary judge was correct. He contended that the protection of one or more creatures or plants from harm and the prevention of harm to them were within the meaning of "environmental protection" as used in s 45DD(3).
21 In our opinion, his Honour's and Mr Hahnheuser's construction of s 45DD(3) should not be accepted. The expressions "environmental protection" and "consumer protection" as used in s 45DD(3) are not defined in the Act. The Macquarie Dictionary (online) defines "consumer protection" as:
"consumer protection
noun the combined laws relating to the protection of purchasers of goods and services from excessively high prices, faulty design, injurious side-effects, etc."
22 However, "environmental protection" as an expression is not defined in any dictionary to which we were taken. Relevantly the Macquarie Dictionary (online) defines "environmental" and "protection" as including the following senses:
"Environmental adjective 1. of or relating to an environment or environments. 2. of or relating to the natural environment, its protection and conservation: environmental issues. 3. of or relating to issues affecting the environment."
"Protection noun 1. the act of protecting. 2. the state of being protected. 3. preservation from injury or harm. 4. something that protects...."
23 In Queensland v Murphy 95 ALR at 498 Mason CJ, Brennan, Deane, Gaudron and McHugh JJ considered the word "environment" as used in a statutory expression "… whether any deleterious effect on the environment would be occasioned". They said, in a passage quoted by the primary judge:
"In its ordinary meaning 'environment' signifies that which surrounds and has long been understood to include 'the conditions under which any person or thing lives': Oxford English Dictionary, 2nd ed (1989). The latter usage dates from 1827 when Thomas Carlyle used the word to mean 'the aggregate of external circumstances, conditions, and things that affect the existence and development of an individual, organism, or group'. See Hendrickson, The Encyclopedia of Word and Phrase Origins (1987)."
Importantly, in the next sentence, which the primary judge did not quote, their Honours continued:
"What constitutes the relevant environment must be ascertained by reference to the person, object or group surrounded or affected."
24 The expression "environmental protection" in its ordinary and natural meaning does not refer simply to the protection of the natural environment. It also can refer to the built environment, such as a heritage building, streetscape or, perhaps, a particular instance of town planning. Thus, the protection of some artificial aspects of the environment can be within the scope of "environmental protection" in s 45DD(3). But the "environment" referred to in the expression ordinarily will be a particular location, thing or habitat in which a particular individual instance or aggregation of flora or fauna or artifice exists. And the "protection" is to preserve the existence and or characteristics of that environment being that location, thing or habitat which may include, or consist only of, that individual instance or aggregation. For present purposes, it is not necessary to essay an exhaustive definition. It is sufficient to say that the concept does not extend as far as his Honour found, nor as far as the respondent proposed.
25 In the present matter, Mr Hahnheuser did not have the dominant purpose of protection of the sheep in the environment of the paddock; he was seeking to protect them from what he asserted would be the conditions they would experience on board a ship engaged in a voyage from Australia to the Middle East. His protest was against live exports of sheep. He was not seeking the protection of any environment, particularly not that of the ship. Nor was he seeking to prevent the same sheep being slaughtered here for food, rather than in the Middle East at the end of the voyage. As he said in one of the interviews:
"Well certainly ultimately these sheep would have either have been slaughtered in Australia in any event if they had been purchased for the Australian market or if they do end up being exported then obviously they would be slaughtered overseas. So that is the inevitable fate of the sheep that is what they are being bred for. But we have succeeded in doing is further highlighting the appalling atrocities that occur to these animals, these sheep and cattle for live exports on a routine basis when they are exported from Australia." (sic, emphasis added)
26 The activity Mr Hahnheuser described (which is similar to the particulars of his pleaded defence) did not relate to environmental protection. Rather, it related to the conditions to which he believed the sheep would be exposed when they left the paddock and were placed on board the vessel. When on the vessel the sheep would be in an environment from which Mr Hahnheuser and his collaborators believed the sheep needed to be protected. But it is contrary to commonsense to suggest that, simply because the sheep may at one time or other have been part of a particular environment, whether in the feed lot, on the farms or stations on which they were bred or pastured, or on board a vessel, protection of the sheep from a perceived harm in a different environment on the vessel is related to environmental protection within the meaning of s 45DD(3). To acknowledge that the sheep may be part of the environment on board the vessel does not result in the conclusion that prevention of the sheep from being placed in that environment is "environmental protection".
27 Mr Hahnheuser had no purpose to protect either the environment from which the sheep were to be removed (the feed lot) or the environment to which they were to be transferred (the ship). To the contrary, he was endeavouring to prevent the sheep from being introduced into the environment of the ship.
28 The desire to protect an existing environment by preventing the habitat of flora or fauna living there from being altered or, perhaps, encouraging its restoration is one thing. But, it is quite another to contend that "environmental protection" can involve preventing sheep being loaded on board a ship, not to preserve or protect the environment of the holding pens on board, but to protect the sheep from being in that environment.
29 The appellants submitted that whether the facts fell within the phrase "substantially related to environmental protection" was to be determined purely objectively, and one matter which must be present is evidence that the relevant environment would otherwise suffer harm from which it needed protection. They argued that that could not be shown here because the only evidence in favour of such a conclusion consisted of the self-serving statements of Mr Hahnheuser in his media releases about this "appalling industry", "appalling atrocities" and the like. The appellants submitted that as against that material, there was very strong evidence that the sheep would not suffer harm during their journey overseas. They referred to the detailed provisions in the Export Control (Animals) Order which required adequate arrangements to be made for the health and welfare of live animals being exported.
30 The primary judge rejected this submission of the appellants. He said (Rural Export 243 ALR at 378 [70]):
"… I reject the submission that there has to be some objective demonstration of the need of sheep for protection from harm they would suffer during shipping to the Middle East. All that a subjective dominant purpose requires is that the person holding it have a belief that such protection is necessary. Plainly, on the evidence in this case, Mr Hahnheuser had such a belief."
31 "Environmental protection" cannot be simply what the person seeking to invoke s 45DD(3) believes to be the dominant purpose for which he or she engages in the conduct. That would permit the person's subjective belief to define conclusively the scope of the statutory provision. As Lord Atkin famously remarked in Liversidge v Anderson [1942] AC 206 at 244-245 that is a strained and uncontrolled construction supported only by Humpty Dumpty's example of being able to choose a meaning for oneself. There must be an objective element in a dominant purpose substantially related to environmental protection which characterises what is relied on by the person, in fact, as "environmental protection". The subjective element is that he or she had the dominant purpose to engage in the conduct complained of which was "substantially related to" the objective fact of "environmental protection" within s 45DD(3)(a). We need not express any opinion on another question of the construction of s 45DD(3). That is whether the exemption in s 45DD(3) is lost if the effect on the environment of the activity from which protection is sought would occur anyway because the activity would also be engaged in wholly for domestic trade or commerce: i.e. the hindering or prevention of overseas trade or commerce would not stop the same detriment to the environment occurring for domestic trade or commerce in any event
32 To invoke s 45DD(3), a person must establish the existence of an objective state of fact consisting of an environment. The section is to do with protection of an environment; that is of something, be it a living habitat, or individual creature, or plant within a habitat, or a structure, or form which exists already in a context. The context, which will include the creature, plant, habitat, or structure, or form, is the environment. But, in order to amount to "environmental protection", the thing sought to be protected must be either the whole context or the part which is threatened in its existence as part of the context.
33 The keeping of sheep in a temporary location, pending their being loaded on board a vessel for transport from Australia, the vessel itself (including locations on it), and the sheep as animals bred for consumption comprise the context which Mr Hahnheuser can rely on as the relevant environment.
34 The primary judge referred to the remarks of the Minister and of Senator Murray in the Senate, who jointly moved the introduction of what became s 45DD, as reinforcing his wide construction of "environmental protection". There is no doubt that the expression in s 45DD(3) should be given a wide construction. The terms of the provision demonstrate that the Parliament was conscious of ensuring that the fundamental democratic right of expression of opinions on government and political matters relating to environmental and consumer protection should not be unduly proscribed or constrained. But a wide construction nonetheless has bounds. The Parliament also sought, in s 45DB(1), to protect the nation's overseas trade from concerted inference with the movement of goods in or out of Australia, but excepted, in s 45DD, certain categories of permitted interference. Both ss 45DB and 45DD interact and so require a construction of their literal or grammatical meanings which respects the context which each section gives the other: cf: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71], 384-385 [78]-[80] per McHugh, Gummow, Kirby and Hayne JJ.
35 The concept of "environmental protection" is broad when used in s 45DD(3). However, as the passage referred to above in Queensland v Murphy 95 ALR at 498 shows, "environment", in its ordinary and natural usage, refers to an aggregate or overall context in which particular things exist. While "environmental protection" may sometimes extend to protecting a particular species, whether of flora or fauna, it does so in the context of the environment in which that species exists. Thus, where some human activity was occurring which was causing a threat to the continued existence of a species (e.g. by destroying the natural habitat of an animal), an activity directed to prevent the operation of the threat would be capable of being found to be engaged in for the dominant purpose which was substantially related to "environmental protection", i.e. the conduct could relate to a means of preventing that species being or remaining under threat from the activity.
36 But, it would be absurd to say that because lawns grow in the ordinary course in the urban environment of a suburban street, "environmental protection" in s 45DD(3) would extend to preventing someone mowing their own domestic backyard so as to prevent the grass from growing too long. In nature, the grass would grow undisturbed by human intervention. Domestic animals bred for the production of food, just as crops bred for that purpose, form part of the environment. But, in their ordinary and natural meaning of "environmental protection" as used in s 45DD(3), the prevention of movement of those animals or crops to a particular new location (being a location which was itself not threatened with harm by the introduction of the animals or crops) could not, realistically be connoted.
37 Rather, the context in which the artificial introduction of human activity, such as the breeding of plants or animals for food, shows that particular part of the environment has been created for a particular purpose from which it does not need protection. It is not naturally occurring or individually unique (such as, perhaps, an historic building). In any event historic buildings would not be, in the ordinary course, used in the course of exporting goods and services from Australia in a way that could be such as would invoke notions of environmental protection.