Sch 1
Environmental Planning and Assessment Act 1979 (NSW), ss 1.4(1), 9.45
Forestry Act 2012 (NSW), ss 3, 5, 11, 38
[2014] FCAFC 173
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Source
Original judgment source is linked above.
Catchwords
Pt 13, Div 1Pt 13, Div 2, ss 13.3,13.14, 13.14A, 13.17Sch 1
Environmental Planning and Assessment Act 1979 (NSW), ss 1.4(1), 9.45
Forestry Act 2012 (NSW), ss 3, 5, 11, 38[2014] FCAFC 173
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493[1980] HCA 53
Australian Conservation Foundation v Minister for Resources [1989] FCA 794(1989) 76 LGRA 200
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247[1990] HCA 24
Coco v The Queen (1994) 179 CLR 427[1994] HCA 15
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309[2011] NSWLEC 217
Hurt v The King [2024] HCA 8
Kuczborski v Queensland (2014) 254 CLR 51[2014] HCA 46
Lee v New South Wales Crime Commission (2013) 251 CLR 310[2013] HCA 39
North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492[1981] HCA 50
Oshlack v Richmond River Council (1998) 193 CLR 72[1998] HCA 11
Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327
Potter v Minahan (1908) 7 CLR 277[1908] HCA 63
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
[2018] HCA 4
Re Bolton
Ex parte Beane (1987) 162 CLR 514
[1987] HCA 12
Robinson v Western Australian Museum (1977) 138 CLR 283
[1995] FCA 1035
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1999) 200 CLR 591
[2000] HCA 11
VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143
[2021] VSCA 195
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338
[1975] HCA 52
Warren v Coombes (1979) 142 CLR 531
Judgment (27 paragraphs)
[1]
rkins [2014] NSWLEC 95
Gouriet v Union of Post Office Workers [1978] AC 435
Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217
Hurt v The King [2024] HCA 8
Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46
Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39
North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; [1994] FCA 989
North East Forest Alliance Incorporated INC1601738 v Forestry Corporation of NSW [2023] NSWLEC 124
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12
Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1999) 200 CLR 591; [2000] HCA 11
VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338; [1975] HCA 52
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Texts Cited: A Mason, "Access to Constitutional Justice: Opening Address" (2010) 22 Bond LRev 1
Coastal Integrated Forestry Operations Approval - Conditions (commenced November 2018)
Coastal Integrated Forestry Operations Approval - Protocols (September 2023)
Herzfeld and Prince, Interpretation (Lawbook Co, 2nd ed, 2020)
New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1998
Category: Principal judgment
Parties: South East Forest Rescue Incorporated INC 98 94 030 (Appellant)
Forestry Corporation of New South Wales ABN 43 141 857 613 (Respondent)
Representation: Counsel:
J Korman/J Farrell (Appellant)
I Hemmings SC/J Taylor/K Pham (Respondent)
[2]
Solicitors:
XD Law (Appellant)
Norton Rose Fulbright (Respondent)
File Number(s): 2024/74092
Publication restriction: Nil.
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 4
Citation: South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7
Date of Decision: 7 February 2024
Before: Pritchard J
File Number(s): 2024/17196
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, South East Forest Rescue Incorporated (SEFR), appealed from a Land and Environment Court decision in which it was found to lack standing. This precluded SEFR from bringing civil enforcement proceedings by which it sought to restrain the respondent, the Forestry Corporation of NSW, from conducting certain forestry operations unless steps were taken to minimise the effects of those operations on three species of glider: the Southern Greater Glider, Yellow-bellied Glider, and Squirrel Glider.
Although the primary judge considered common law standing was not, as the respondent contended, ousted by the applicable statutory scheme, her Honour found SEFR did not have a "special interest" in the subject matter and thus lacked standing. This was because: it sought relief in relation to operations outside its usual geographical area of concern; it was deemed to be formed for the basis of ending native logging, not the protection of gliders; the evidence was unclear as to the nature, activities, knowledge and experience of its members in their pursuit of SEFR's objects; and its concern for gliders was deemed only to have been recently manifested.
On appeal, the issues for determination were whether:
(i) on the proper construction of ss 69SB and 69ZA of the Forestry Act 2012 (NSW) and ss 13.14 and 13.14A of the Biodiversity Conservation Act 2016 (NSW), private persons or entities are precluded from bringing civil enforcement proceedings;
(ii) the Court below had the power to dismiss the proceeding on the ground that the appellant did not have standing;
(iii) the appellant was denied procedural fairness and ought to have been allowed to adduce further evidence as to standing before the substantive proceeding was determined; and
(iv) in any event, the primary judge erred in determining the appellant did not have standing.
The Court (Griffiths AJA, Adamson JA and Basten AJA agreeing) held, allowing the appeal:
As to issue (i):
(1) Clearer language is required to oust common law standing than that used in the subject provisions; the courts should not impute an intention to the legislature to abrogate or curtail fundamental rights other than by a law expressed with "irresistible clearness": [1] (Adamson JA); [2] (Basten AJA); [116]-[118] (Griffiths AJA). The provisions thus do not preclude private persons or entities from bringing civil enforcement proceedings in relation to integrated forestry operations: [1] (Adamson JA); [24]-[30] (Basten AJA); [119] (Griffiths AJA).
As to issues (ii) and (iii):
(2) The success of the appeal on the issue of standing obviated the need to determine these issues: [1] (Adamson JA); [2] (Basten AJA); [50] (Griffiths AJA).
As to issue (iv):
(3) Common law standing may, in the absence of some private right or special damage, be demonstrated by a "special interest": [1] (Adamson JA); [34]-[35] (Basten AJA); [123] (Griffiths AJA). The sufficiency of particular steps or activities that can demonstrate a special interest are fact and context specific: [1] (Adamson JA); [87] (Griffiths AJA).
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50; Australian Conservation Foundation v Minister for Resources [1989] FCA 794; (1989) 76 LGRA 200; North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; [1994] FCA 989; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49; Animals' Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173; Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46; VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195; Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1, considered.
(4) The appellant has a sufficient special interest in circumstances where it had an approximate 20-year history of taking active steps and concrete action in relation to its beliefs and concerns, namely a deep concern regarding logging and its effects on the welfare of forest-dependent threatened species, including the Greater Glider: [1] (Adamson JA); [46] (Basten AJA); [148]-[175] Griffiths AJA.
[5]
JUDGMENT
ADAMSON JA: I agree with Griffiths AJA.
BASTEN AJA: I agree with the orders proposed by Griffiths AJA and with his reasons. The following observations are not intended to be inconsistent with those reasons, but to supplement them.
On one view, to address standing at the outset of a proceeding may be premature where standing depends on the statutory context of the applicant's claim, the nature of the relief sought and the nature of the applicant's activities in relation to such matters. At least it is desirable to have a clear view of each of those matters.
[6]
Statutory scheme
It is convenient to start with the basis of the claims. Determining who may have authority to bring proceedings in a court to enforce duties or obligations imposed by statute on a public authority requires consideration of both judge-made law and statute. Where the obligations or duties arise under statute, the statute is the proper starting place for consideration.
There are three statutes having potential relevance in the present case. Their interaction is central to the first question to be addressed, being that raised by the respondent by way of a notice of contention.
The respondent in these proceedings, the Forestry Corporation of New South Wales, was constituted by s 5 of the Forestry Act 2012 (NSW). It is a statutory State-owned corporation. The principal functions of the Forestry Corporation are to carry out or authorise the carrying out of forestry operations (s 11). The term "forestry operations" is defined to mean a range of activities including "logging operations, namely, the cutting and removal of timber from land for the purpose of timber production": s 3(1).
[7]
Environmental Planning and Assessment Act 1979
The nature of forestry operations is such that they involve a use of land within the definition of "development" in s 1.4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act). Under that Act, development may be permitted without consent, may be permitted with consent, or may be prohibited. The relevant characterisation will be provided by an "environmental planning instrument". However, these aspects of the Planning Act are disapplied by s 69W of the Forestry Act in relation to forestry operations which are subject to an "integrated forestry operations approval": s 69W(1) and (2). Accordingly, so long as there is such an approval in force and the approval is not itself subject to legal challenge, there will be no basis to allege a breach of the Planning Act, and the open-standing provision in s 9.45 of that Act will not be engaged.
[8]
Biodiversity Conservation Act 2016
A second statutory regime of potential application is the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Act). That Act contains a number of prohibitions against harm to, or destruction of, various areas, animals and plants, including "ecological communities", having recognised conservation value. In particular, the Biodiversity Act defines "protected animals" as including animals of "a threatened species or threatened ecological community": s 11.29. The Act contains a process for listing threatened species. [1] Schedule 1 to the Biodiversity Act is headed "threatened species" and lists various animals and plants under three categories, being (i) critically endangered, (ii) endangered and (iii) vulnerable. The Southern Greater Glider is listed as endangered; the Yellow-bellied Glider and the Squirrel Glider are listed as vulnerable. [2] Part 4, Div 5 of the Biodiversity Act provides for the listing of "threatening processes" if a process is one which "adversely affects threatened species or ecological communities": s 4.32(1). Part 7 deals with biodiversity assessment and approvals under the Planning Act, in particular, the preparation of "species impact statements".
Part 11 of the Biodiversity Act provides for "Regulatory compliance mechanisms". In particular, Div 3 provides for "Interim protection orders". Section 11.9 provides that the Minister may make an interim protection order in respect of an area of land where there has been a recommendation to that effect from the Environment Agency Head. The Environment Agency Head may make such a recommendation on a number of grounds, including "… the habitat of a threatened species or ecological community": s 11.8(1)(c).
Part 13, Div 1 of the Biodiversity Act provides for criminal proceedings with respect to offences under the Act. Authority to take such proceedings is limited to a police officer, the Environment Agency Head, or a person authorised by the latter. [3] Criminal offences include harming or threatening to harm an animal of a threatened species (s 2.1) and damaging the habitat of a threatened species, knowing it to be the habitat of a threatened species (s 2.4). If the activity is unlawful the onus of proving knowledge is reversed: s 2.4(2).
Section 2.8 provides a defence in the following circumstances:
2.8 Acts authorised under other legislation etc
(1) It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence-
…
(h) Forestry operations authorisation
The act was-
(i) the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that is carried out in accordance with the approval ….
[9]
Forestry Act 2012
It is convenient to turn next to the terms of the Forestry Act, which provides in Pt 4 a general prohibition on the unlawful taking of timber from Crown-timber land and from any State forest or flora reserve: s 38(1). There is an exception with respect to timber taken pursuant to a "licence issued by the Corporation under this Act". [4] Similarly, the prohibition does not apply in relation to forestry operations carried out by or on behalf of the respondent: s 38(4).
One form of authority is an "integrated forestry operations approval" granted pursuant to Pt 5B of the Forestry Act. Such an approval can be given for forestry operations in State forests or other Crown-timber lands: s 69K(1). The purpose is stated in s 69L in the following terms:
69L Purpose of integrated forestry operations approvals
(1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies -
(a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and
(b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
(2) In this section -
principles of ecologically sustainable forest management means the following -
(a) maintaining forest values for future and present generations, including -
(i) forest biological diversity, and
(ii) the productive capacity and sustainability of forest ecosystems, and
(iii) the health and vitality of native forest ecosystems, and
(iv) soil and water quality, and
(v) the contribution of native forests to global geochemical cycles, and
(vi) the long term social and economic benefits of native forests, and
(vii) natural heritage values,
(b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations,
(c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards,
(d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management,
(e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.
[10]
Contention - Disapplication of open standing provisions
The notice of contention filed by the respondent challenged the primary judge's rejection of its submission that no person other than one of those identified in s 69ZA(3) has power to "institute proceedings in a court to remedy or restrain a breach" of Pt 5B of the Forestry Act. In essence, the contention relied upon the fact that s 69SB(1) confers on the EPA a function of enforcing the requirements of an integrated forestry operations approval, which the respondent contended was exclusive. However, this contention must be rejected for a number of reasons.
First, as the respondent conceded, s 69SB(1) contains no express reference to the power of "any person" to enforce compliance with the requirements of an approval. The conferral of power on the EPA might be thought a standard means of conferring on a public authority a function which, if not exclusively dependent on statute, should be clearly stated by the statute. The intention to do so is self-evident. That s 69SB(1) was not intended to confer exclusive authority is apparent from the other provision upon which the respondent relies, namely s 69ZA(3). That section assumes that other persons, including "a Minister", a member of the staff of the EPA and, in certain circumstances, another government agency or official, may be able take enforcement proceedings. Section 69ZA(3) does not state that they have such powers, but merely states that the section does not apply to them. If exclusive power had been conferred on the EPA, that provision would be otiose.
Secondly, s 69ZA(1) only applies to identified statutory provisions: it says nothing about the powers of persons to enforce proceedings which may arise absent a statutory conferral of a right. Thus, in effect, the respondent seeks to insert in s 69ZA(1)(b), after "a provision of an Act", the words "or the general law". That inclusion by way of implication cannot easily be justified, nor did the respondent seek to do so; rather it took issue with the primary judge's reliance on the principle of legality to conclude that standing under general law principles had not been excluded by implication.
There may be some force in the proposition, accepted by the primary judge, that the absence of an intention to exclude rights under the general law is supported by that principle of statutory interpretation known as the principle of legality. That principle supports the proposition that there should be a clear statutory expression of "an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom" or "fundamental rights". [6] However, where there is a complex statutory scheme, the identification of statutory purpose and intention is best derived from the legislation itself. [7]
[11]
Principles of general law standing
The principles by which the courts determine standing in public law matters have given rise over the years to disparate views and a fear that findings in individual cases are difficult to reconcile. There may be some truth in the latter concern, but the correct approach for judges of an intermediate court of appeal is to address the nature of the statutory scheme which has given rise to the subject matter of the proceeding, and the purpose of limiting access to the courts by persons or bodies seeking to ensure compliance with the limits and conditions constraining the exercise of executive powers.
The enforcement of public duties was once thought to be a monopoly of the Attorney-General, so that any private individual seeking to take that role required the permission or "fiat" of the Attorney. [10] That view has long since been abandoned in Australia. In Victoria v The Commonwealth and Hayden [11] Gibbs J tartly observed, "I would, in Australia, think it somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible". To similar effect, Sir Anthony Mason observed, extrajudicially, that Attorneys-General are "not independent of government and cannot be expected to act impartially in deciding whether proceedings should be brought against the government". [12] In relation to a New South Wales regulatory statute, [13] Craig J observed in Haughton v Minister for Planning and Macquarie Generation [14] that "the 'gatekeeper' for the taking of any proceedings is the very Minister whose actions are sought to be impugned as being beyond power". As will be noted, that last observation has resonance in the present case.
It is unsurprising, therefore, that the law permits other persons to commence proceedings to enforce statutory obligations of public authorities, whether by orders in the nature of the former prerogative writs, or by way of equitable relief, and particularly an injunction.
The test now accepted as identifying the criterion for a person to commence proceedings in accordance with the general law is variously described as the existence of "special damage", a "special interest" or a "sufficient interest". Each of these phrases involves a level of imprecision. The underlying purpose for such a criterion has been identified in different ways.
[12]
Application of principles
In applying the rules of standing as a threshold criterion to be satisfied in relation to the present proceedings, it is appropriate to assume that the applicant's contentions as to breaches of the provisions of the Forestry Act and the conditions pursuant to which forestry operations are being undertaken by the respondent, are justifiable. Further, it should be assumed that relief of the kind sought by the applicant is available. In those circumstances, the consequences of not permitting the application to proceed must be appreciated. The principal consequence would be to render unenforceable, in practical terms, an extensive scheme regulating forestry operations so that they do not override the conservation of biodiversity, not in the abstract, but by reference to particular species and particular conduct. The scheme is the product of two Ministers acting together. The statute places enforcement of that detailed regulatory scheme in the hands of the EPA, but in practical terms it is unrealistic to expect that the authority administered by one minister to take curial proceedings against the authority administered by the other minister. Further, if the substance of the claim were that the EPA had failed in its statutory obligation to monitor compliance by the Forestry Corporation, or to investigate complaints in the exercise of its functions, it would in effect by required to sue itself.
The question as to whether forestry operations should be curtailed in the face of threatened harm to an endangered species such as the Southern Greater Glider is not in issue in this proceeding. That question has been resolved by the statutory scheme under which forestry operations take effect. However, the application of that condition in particular areas and in particular circumstances, which is the subject matter of the proceeding, is not a matter in which members of the public generally have any special interest, expertise, or ability to monitor forestry operations. For the reasons explained by Griffiths AJA, the applicant, through its committed membership, is not only able to undertake those functions, but has demonstrated a willingness to do so over several years. There can be no doubt that it satisfies the requisite criterion for standing to bring these proceedings.
GRIFFITHS AJA: A central issue in this proceeding, which is raised by ground 3 of the notice of appeal, is whether the primary judge erred in concluding that the appellant lacked standing to bring civil enforcement proceedings in relation to particular integrated forestry operations being carried out by the respondent under Pt 5B of the Forestry Act 2012 (NSW) (Forestry Act). Her Honour found that the appellant lacked standing in the proceedings below in which the appellant sought inter alia to restrain the respondent from conducting any forestry operations in specified compartments in several State forests unless certain steps were taken to prevent or minimise the effects of such logging on various species of gliders. These species are the Southern Greater Glider (Petauroides volans) (Greater Glider), the Yellow-bellied Glider (Petaurus australis) and the Squirrel Glider (Petaurus norfolcensis).
[13]
The statutory framework for NSW forestry operations
There were significant reforms in 2018 relating to the conduct and regulation of forestry operations in the State. These reforms were introduced by amendments to the Forestry Act in the Forestry Legislation Amendment Act 2018 (NSW). The provisions of Pt 5B of the Forestry Act included in this analysis were either amended or introduced by this amending Act. It will be necessary to refer later (see at [106] below) to other provisions in both the Forestry Act (which were also either introduced or amended as part of these reforms) and the Biodiversity Conservation Act 2016 (NSW) (BC Act) which are relevant to the notice of contention.
Part 5B of the Forestry Act contains provisions relating to the making, application and enforcement of approvals for forestry operations in State forests or other Crown-timber lands (see s 69K(1)).
The expression "forestry operations" is defined in s 3 of the Forestry Act as meaning:
(a) logging operations, namely, the cutting and removal of timber from land for the purpose of timber production, or
(b) the harvesting of forest products, or
(c) ongoing forest management operations, namely, activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities and bush fire hazard reduction, or
(d) ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities.
One of the principal functions of the respondent (which is a corporation established by s 5 of the Forestry Act) is to carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the respondent. Approvals to carry out forestry operations are granted by the designated Ministers under s 69N of the Forestry Act.
The purpose of Pt 5B is stated in s 69L(1):
69L Purpose of integrated forestry operations approvals
(1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies -
(a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and
(b) integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
[14]
Site specific biodiversity conditions
Condition 21.5 and Protocol 31.3 provide for the EPA to make "site-specific biodiversity conditions" (SSBCs).
On 31 January 2024, the EPA amended Protocol 31 of the CIFOA (which makes provision for flora species and endangered populations protected by the application of species-specific conditions), so as to add the Greater Glider.
On 16 February 2024, the EPA issued SSBCs for the Greater Glider in the CIFOA region (the new SSBCs). Additional requirements were imposed in relation to glider habitat retention and the way in which broad area habitat searches are to be carried out. More glider trees are required to be permanently retained (Conditions 6 and 7). Condition 14 now requires each search and survery to be carried out in accordance with quite detailed provisions relating to such matters as the timing and circumstances in which the surveys are to be conducted.
It is common ground that, under transitional provisions, the respondent is not obliged to comply with the new SSBCs in respect of compartments where forestry operations were commenced prior to 16 February 2024 and where it has conducted a broad area habitat search as required by Condition 57.2.
I will now briefly describe some procedural issues in the LEC proceedings below.
[15]
Some procedural matters in the LEC proceedings highlighted
The proceedings below have a complex and complicated history, as is reflected in the primary judge's comprehensive description of it at PJ[1] to [36]. It is unnecessary to repeat that description but I will highlight some selected matters which involve events that are relevant to the appeal.
On 15 January 2024 (i.e., during the Court's vacation period), the appellant filed a summons in the LEC's Class 4 jurisdiction bringing civil enforcement proceedings against the respondent. (The LEC has jurisdiction under s 20(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) to enforce any obligation, right or duty imposed by a planning or environment law, in circumstances where a "planning or environment law" is defined in s 20(3) to include Pt 5B of the Forestry Act). Injunctive and declaratory relief were sought concerning the respondent's forestry operations in all areas covered by the CIFOA. The appellant claimed that the respondent was unlawfully failing to look for, identify and record trees containing evidence of the three subject glider species, in breach of Condition 57 of the CIFOA. It also claimed that the respondent failed to protect glider den trees with a 50 metre exclusion zone, in breach of Condition 76.
On the same day, the appellant filed a notice of motion seeking urgent interlocutory injunctive relief to restrain the respondent from conducting forestry operations in specified State forest compartments covered by the CIFOA (where the Greater Glider and Yellow-bellied Glider had recently been detected) until effective den tree surveys were conducted by or on behalf of the respondent. Both lay and expert evidence was filed by the appellant which was intended to demonstrate, on a prima facie basis, that it had a "special interest" in the subject matter of the proceeding and that the respondent was breaching Conditions 57.2 and 76.1.
The notice of motion was listed for mention before the primary judge on 23 January 2024. Before then, on 19 January 2024, the appellant served a proposed amended notice of motion which removed certain compartments from the motion filed on 15 January 2024, and also sought to add some additional compartments which were within the CIFOA. The primary judge granted leave for the appellant to remove some compartments where forestry operations had ceased, but refused leave to add any additional compartments (the amended notice of motion). This motion sought urgent interim injunctive relief in respect of 13 compartments in three of the four subregions covered by the CIFOA.
[16]
The primary judge's reasons for judgment dated 7 February 2024 summarised
The primary judge identified the following four issues relating to standing which required resolution:
1. Did common law standing principles apply to the appellant's civil enforcement proceedings, notwithstanding the restrictive standing provisions in ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act?
2. Whether determination of the appellant's standing to seek the relief sought in the amended notice of motion ought to be determined as a final matter or, rather, on a prima facie basis.
3. If common law standing requirements applied, had the appellant established that it had a special interest in the subject matter of the proceedings?
4. If the appellant had standing, should the Court grant the urgent interlocutory relief sought by it?
I will now summarise the primary judge's reasons in relation to each of these issues.
[17]
(a) Did common law standing principles apply to the appellant's civil enforcement proceedings, notwithstanding the restrictive standing provisions in ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act?
Her Honour noted at PJ[114] that whilst it had been determined in North East Forest Alliance Incorporated INC1601738 v Forestry Corporation of NSW [2023] NSWLEC 124 that, notwithstanding s 69ZA of the Forestry Act, common law standing can exist to bring judicial review proceedings, there was no decision of a NSW court concerning the availability of common law standing to bring civil enforcement proceedings to enforce the requirements of an integrated operations approval.
After summarising the parties' respective submissions on the effect of provisions such as ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act and the "principle of legality" (which her Honour identified as not imputing to the legislature an intention to interfere with fundamental rights unless such an intention is clearly manifested), the primary judge concluded at PJ[128] that s 69ZA did not have the effect of ousting common law standing in proceedings to enforce the requirements of an integrated forestry operations approval to which Pt 5B of the Forestry Act applied (these provisions are considered from [105] below). Her Honour concluded that:
"128 …having regard to the purpose of the Forestry Act, the context of ss 69SB and 69ZA, the plain language of those provisions and that of the cognate provisions in ss 13.3, 13.14 and 13.14A of the BC Act, and the principle of legality (namely, that the courts should not impute to the legislature an intention to interfere with fundamental rights unless such an intention is clearly manifested by unmistakable and unambiguous language), the Court is satisfied that, on its proper construction, s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. A private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval."
The correctness of this conclusion and reasoning is challenged by the respondent's notice of contention.
[18]
(b) Whether determination of the appellant's standing to seek the relief sought in the amended notice of motion ought to be determined as a final matter or, rather, on a prima facie basis
After referring to several relevant authorities (including Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (ACF - HCA); Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46; Environment East Gippsland Inc v VicForests [2009] VSC 386; Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 507 and Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824), her Honour concluded that it was appropriate in the exercise of discretion to decide the question of standing as a preliminary matter, rather than await the determination of the merits, for reasons which are set out at PJ[106].
It is convenient to reiterate here that, after concluding at PJ[176] that the appellant had not established, even on a prima facie basis, that it had a sufficient special interest to bring the proceeding, the following day (i.e., 8 February 2024), and as requested by the respondent, her Honour made orders which not only dismissed the second notice of motion but also dismissed the proceeding generally. Grounds 1 and 2 of the notice of appeal challenge these orders, but need not be determined (see at [50] above).
[19]
(c) If common law standing requirements applied, had the appellant established that it had a special interest in the subject matter of the proceedings?
Her Honour noted the following matters which the appellant relied upon as demonstrating that it had common law standing:
"131 SEFR submitted that its 'comprehensive evidence', namely, the evidence of Mr Daines, establishes a 'history of over 20 years' intensive activity' directed towards its public purpose. SEFR's activities include:
(1) initiation of protests and community engagement activities;
(2) conducting forest audits and reporting potential contraventions of forest laws to the relevant authorities;
(3) conducting litigation on four earlier occasions;
(4) advocacy through the media;
(5) lobbying, public education;
(6) preparing and publishing reports concerning management of NSW forests; and
(7) making submissions in response to public consultation opportunities relating to forestry operations and management and conservation of native forests."
Her Honour also noted evidence concerning public recognition of the appellant's role in the protection of public forests, including the appellant's representatives sitting on a committee established by the Resource and Conservation Assessment Council of the Department of Premier and Cabinet in 2003; receiving an excellence grant for outstanding environment protection work from the Robyn Stellar Foundation in 2007; and two of the appellant's executive members being awarded the Bob Brown Environmentalist of the Year in 2019 "for recognition of work on behalf of [the appellant] for the protection of forests and action on climate change during the past 20 years". Her Honour further noted the evidence that the appellant had conducted spotlight surveys for Greater Gliders and submitted reports of identified glider den trees to the EPA.
Her Honour summarised the respondent's submissions as to why it contended that the appellant lacked the requisite "special interest" in the subject matter of the proceeding. This included the submission that, while the appellant may have a general interest in NSW forests, that was insufficient, particularly where the compartments the subject of the proceedings were not within the region it described as the "South East Forests of NSW", to which the appellant's name relates (i.e., broadly the Southern and Eden subregions). Moreover, the respondent submitted that the appellant's evidence failed to demonstrate any connection with the subject matter of the proceedings, being glider den trees and broad area habitat searches.
[20]
(d) If the appellant had standing, should the Court grant the urgent interlocutory relief sought by it?
Having regard to her Honour's conclusion that the appellant lacked standing, even on a prima facie basis, this issue did not strictly arise. For completeness, however, her Honour explained why she did not consider that there was a serious question to be tried, or an arguable case. On the balance of convenience, however, her Honour considered that the expert evidence concerning irreparable harm outweighed the appellant's delay in seeking interlocutory relief.
[21]
The appeal and notice of contention
The appeal (which is brought under s 58 of the LEC Act), challenges the orders dated 8 February 2024, including an order that the substantive proceeding be dismissed. It should be noted that the appellant discontinued an application for leave to appeal in respect of the orders dated 7 February 2024. It was common ground, however, that the primary judge's reasons for judgment dated 7 February 2024 also informed the orders made the following day.
As noted at [50] above, it is sufficient to focus on ground 3, which is directed to the central question whether the appellant has standing to bring the proceeding.
The respondent filed a notice of contention claiming that common law standing to bring civil enforcement proceedings in relation to forestry operations conducted under the CIFOA was ousted by the statutory scheme manifested in particular in ss 69SB and 69ZA of the Forestry Act and ss 13.14 and 13.14A of the BC Act.
[22]
(a) Notice of contention
It is convenient first to address the notice of contention. For the following reasons, the primary judge did not err in concluding that common law standing principles apply to the proceedings. (I should clarify that the references to "common law standing" are intended to include standing to seek equitable remedies in a public law context).
In brief, the respondent contended that the effect of the statutory scheme, comprising relevant provisions of the Forestry Act and BC Act, constitute a code which precludes common law standing and limits the enforcement of the CIFOA to the entities identified in sub-ss 69ZA(3)(a) to (c) of the Forestry Act, namely the EPA, the Minister or other relevant government agencies (see at [108] below).
The primary provisions relied upon by the respondent in support of its notice of contention are as follows:
69SB Enforcement functions of EPA
(1) The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.
(2) The Biodiversity Convention Act 2016 contains provisions relating to the enforcement of this Part, and accordingly -
(a) functions under Part 6 of this Act (Investigations and enforcement powers) are not exercisable in relation to any matter arising under this Part, and
(b) proceedings for an offence against this Part or the regulations under this Part cannot be instituted under Part 7 of this Act (Criminal proceedings and related matters) and that Part does not apply to any such alleged offence.
Note -
This Part (in addition to Parts 5A and 5B of the Local Land Services Act 2013) is native vegetation legislation (and offences under this Part are native vegetation offences) for the purposes of the Biodiversity Conservation Act 2016. Accordingly, the following provisions of that Act apply (to the extent specified in those provisions) to the enforcement of this Part -
(a) Part 11 (Regulatory compliance mechanisms), except Division 3,
(b) Part 12 (Investigation powers),
(c) Part 13 (Criminal and civil proceedings),
(d) Section 14.7A (Provisions relating to regulation or enforcement of native vegetation legislation).
See also section 13.14A of the Biodiversity Conservation Act 2016.
(3) In this section -
enforcing compliance includes instituting criminal or civil proceedings.
monitoring includes investigating and reporting.
[23]
(b) Ground 3 of the appeal and the appellant's standing
This aspect of the appeal does not turn on any significant dispute as to the content of the relevant legal principles concerning common law standing, but rather on their application to the particular facts and circumstances. Many of the relevant legal principles are identified in two recent intermediate appellate court decisions, namely VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 and Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1.
The following summary of the relevant legal principles draws heavily on Kinglake (many of which were relied upon in Blue Derby). I will describe from [142] below how the application of the principles in the particular circumstances of those two appeals produced different outcomes on the question of standing. This serves to highlight that the application of the principles is very much fact and context specific (a point which is illustrated by other cases which I will briefly outline in the following analysis).
[24]
(i) Some legal principles on common law standing summarised
I will now describe some of the relevant legal principles concerning common law standing and make some additional observations.
An applicant who attempts to bring civil enforcement proceedings seeking declaratory and/or injunctive relief in respect of unlawful conduct and does not rely on a private right or special damage to establish standing must demonstrate a "special interest" in the subject matter of the proceeding. As expressed in Kinglake at [21], standing in the context of public law "depends on the nature and extent of the relationship between the plaintiff and the subject matter of the litigation".
This raises the question of the level of abstraction with which the subject matter of the proceeding should be identified (see Kinglake at [22]). In an environmental context, for example, is it sufficient for the applicant to demonstrate that it has an interest in the protection and preservation of the environment generally or must its interest be associated with the particular decision or conduct which is the subject of the proceeding?
Putting to one side cases where the Court is exercising a statutory jurisdiction (which may have an open standing provision or some other statutorily expressed formula for standing) and cases involving what were once described as the prerogative writs (which have their own particular and variable standing rules), the common law standing test based on the need to demonstrate a "special interest" in the subject matter of the proceeding focuses on the relative position of the applicant when compared with the broader population (see Kinglake at [29]).
The "special interest" test is not confined to proprietary, business or economic interests. But a "mere emotional or intellectual concern" is insufficient unless the applicant demonstrates that it has taken sufficient, concrete or active steps to effectuate the particular concern (see Kinglake at [76]). The need for the interest to be special or different from those held by ordinary members of the public "is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation" (see Kinglake at [60(d)]).
There may be more than one doctrinal underpinning for the requirement of standing in the context of a public law proceeding. Those underpinnings may vary depending upon the particular relief or remedy which is sought. At both a federal and state level, it is important, however, to acknowledge the role of standing in confining the exercise of judicial power to its proper limits (see, for example, Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [37] per Gaudron, Gummow and Kirby JJ, who identified as a general consideration that the principles by which standing is assessed are concerned to mark out the boundaries of judicial power, whether in federal jurisdiction or otherwise). Essentially the same point was made by the plurality (Crennan, Kiefel, Gageler and Keane JJ) in Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 (footnotes omitted):
"184 The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect 'the legal situation of persons subject to the jurisdiction of the court' serves to maintain the ordinary characteristics of judicial power.
185 It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity."
[25]
(ii) Why the appellant has standing in this proceeding
The application of the relevant legal principles to a particular case necessarily requires an evaluative judgment as to whether a party has standing, however, the issue is not one of discretion. Neither party suggested that the appellate standard of review in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 did not apply.
For the following reasons, and with great respect to the primary judge (who was under considerable pressure promptly to publish her reasons for judgment concerning the appellant's applications for urgent interlocutory relief which were filed and progressed during the LEC's vacation period), I shall now explain why I consider that the appellant has standing (with particular reference to the evidence in two affidavits by Mr Scott Daines, who is the appellant's Public Officer and President).
First, SEFR was founded in 2001 and was incorporated in September 2010. In its application for incorporation, the appellant identified its objects and purposes as follows:
"(a) carry out research, auditing and surveys of State forests and Forests NSW native forest logging operations.
(b) this auditing involves documenting breaches of the Regional Forest Agreements, Integrated Forestry Operations Approvals, Threatened Species Licences and Environment Protection Licences and other non-licence conditions by Forests NSW and logging contractors. These reports will then be sent to the relevant regulators.
(c) produce newsletters, articles and other written information about the environment of NSW.
(d) make submissions to Government.
(e) represent on Committees established by Government and community.
(f) conduct guided walking tours of State forest.
(g) conduct training and field days."
The application for incorporation also included a vision statement (a modified version of which currently appears on the appellant's website), both of which state that the appellant takes
"…a firm stand on environmental protection of the native forest estate and acts with deep concern for the welfare of forest-dependent threatened species and the cumulative impacts of industrial degradation of native forests that are exacerbating extinction rates…". (Emphasis added.)
The reference to the appellant's "deep concern for the welfare of forest-dependent threatened species" is particularly significant having regard to the threatened status of Greater Gliders.
[26]
Conclusion
Having regard to all these matters, I am satisfied that the appellant has a sufficient special interest in the subject matter of these proceedings because the evidence adequately demonstrates that:
1. its interest is more than a mere intellectual or emotional concern for the preservation of the environment;
2. its interest goes beyond that of members of the public generally in upholding the law;
3. its interest involves more than genuinely held convictions; and
4. it has taken sufficient active and concrete steps to give effect to its interest and concerns.
For all these reasons, I propose that the appeal be allowed, with costs. Order 1 of the orders dated 8 February 2024 should be set aside. No party has sought to challenge the order dated 15 April 2024 that there be no order as to costs of the proceedings below.
In circumstances where the substantive proceedings identified in the summons filed on 15 January 2024 remain to be heard and determined, it is a matter for the Chief Judge of the LEC to determine to whom the matter should be allocated.
[27]
Endnotes
Biodiversity Act, Pt 4, Div 3.
In certain areas, the latter two are also listed as endangered.
The term "Environment Agency Head" is defined to mean the Chief Executive of the Office of Environment and Heritage: s 1.6.
Forestry Act, s 38(3)(a)(i), and definition of "licence" in s 3(1).
Section 69ZA also applies to certain provisions under the Protection of the Environment Operations Act 1997 (NSW) which are not presently relevant.
Coco v The Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15 (Mason CJ, Brennan, Gaudron, McHugh JJ).
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), [58]-[60] (Gageler J).
Probuild at [56] (Gageler J).
New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1998, p 9924.
See eg Gouriet v Union of Post Office Workers [1978] AC 435, 481 (Lord Wilberforce).
(1975) 134 CLR 338 at 383; [1975] HCA 52.
A Mason, "Access to Constitutional Justice: Opening Address" (2010) 22 Bond LRev 1 at 2.
Planning Act, s 75T (as then in force).
(2011) 185 LGERA 373; [2011] NSWLEC 217 at [73].
[1903] 1 Ch 109, 114.
(1998) 194 CLR 247; [1998] HCA 49 at [94], [96].
(1980) 146 CLR 493, 530 (Gibbs J); [1980] HCA 53.
(1995) 183 CLR 552, 558; [1995] HCA 11.
(1981) 149 CLR 27 at 41-42; [1981] HCA 50.
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [86] (McHugh J); see also Truth About Motorways (infra, fn 23) at [132]-[133] (Kirby J).
Onus at 35 (Gibbs CJ).
(1978) 33 FLR 327 at 333-334.
(1999) 200 CLR 591; [2000] HCA 11 at [71]; see also at [2] (Gleeson CJ and McHugh J).
Bateman's Bay at [39].
See the historical analysis of Gummow J at [88]-[100].
See Australian Conservation Foundation at 551 (Mason J).
With respect to civil proceedings, Pt 13, Div 2 relevantly provides:
13.14 Civil proceedings to remedy or restrain breaches of this Act or regulations …
(1) Any person (including the Environment Protection Authority) may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of -
(a) this Act or the regulations, or
…
(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations or for a native vegetation offence.
(3) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
…
13.14A Civil proceedings to remedy or restrain breaches of Part 5B of Forestry Act 2012
(1) The Environment Protection Authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of Part 5B of the Forestry Act 2012.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for a native vegetation offence under Part 5B of the Forestry Act 2012.
(3) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(4) Without limiting the powers of the Court under this section, an order under this section may suspend an integrated forestry operations approval with respect to the forestry operations concerned in the breach.
Finally, s 13.17, also in Div 2, provides:
13.17 Provisions relating to proceedings under this Division
(1) Proceedings may be brought by a person under this Division whether or not any right of the person has been or may be infringed by or as a consequence of the breach concerned.
(2) Proceedings may be brought by a person under this Division on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
The Biodiversity Act thus provides in s 13.14 an "open-standing" regime with respect to civil proceedings for breaches of the Biodiversity Act, as well as providing for the Environment Protection Authority (EPA) to bring proceedings for breach of the Biodiversity Act. The significance of the open standing provision is two-fold. First, it demonstrates a statutory intention that there is a public interest in allowing members of the public to enforce the statutory scheme for protection of animals, plants and ecological communities. Secondly, it recognises that which is implicit in the statutory scheme, namely that the animals, plants and communities to be protected have been identified to the level of species and populations. Thus, the nature of the public interest is particular and not open-ended.
The statutory scheme for enforcement envisages both criminal and civil proceedings by way of enforcement of the identified public interest - a point which has significance when provisions of the Forestry Act are addressed.
The operation of s 13.17 is less clear: when enacted it undoubtedly applied only to breaches of the Biodiversity Act; whether the addition of s 13.14A and the addition of reference to the EPA in s 13.14(1) in 2018 changed that operation need not be determined.
As the critical issue in the present proceedings is (or will be if a hearing proceeds) the enforcement of conditions of an approval, and in the light of constraints on challenging activities purportedly carried out in pursuance of an approval, it should be noted that the principles of ecologically sustainable forest management include maintaining the health and vitality of native forest ecosystems and natural heritage values and "ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations". The principles also require the application of the precautionary principle in preventing environmental harm.
The Forestry Act provides that an integrated forestry operations approval is to set out conditions subject to which forestry operations are to be carried out: s 69P(2)(b). The manner in which those conditions are formulated and operate are discussed by Griffiths AJA, and need not be repeated here. A breach of the conditions is at the centre of the case presented by the applicant.
An approval is only to be granted "jointly by the Minister for the Environment and the Minister for Lands and Forestry": s 69N(1). Prior to grant of an approval, public consultation is required: s 69NA(1). Members of the public are to be invited to make representations in connection with a proposed approval, which representations must be considered by the Ministers before the approval is granted: s 69NA(2).
Further, it is an offence to contravene a "requirement" imposed by an integrated forestry operations approval. The term "requirement" has a broad operation, as the offence-creating section refers to such requirements "however described" imposed on the respondent or a person carrying out forestry operations: s 69SA(2).
Section 69SB has two purposes. The first is to confer on the EPA a function of "monitoring" the carrying out of forestry operations to which the Part applies, and the function of "enforcing compliance with the requirements of integrated forestry operation approvals". The second purpose is to note that the Biodiversity Act contains provisions for enforcement of Pt 5B of the Forestry Act and "accordingly" disapplies power to carry out investigations and enforcement under Pt 6 of the Forestry Act and the power to institute criminal proceedings under Pt 7. The section cross-refers to s 13.14A of the Biodiversity Act, which is set out above. However, s 69SB does not affect civil enforcement proceedings. These are dealt with in the following section which is central to the respondent's contention that no person other than the EPA has authority to bring proceedings: [5]
69ZA Application of statutory provisions relating to proceedings by third parties
(1) This section applies to the following statutory provisions -
…
(b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,
….
(2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows -
(a) a breach of this Part (including a breach of any forest agreement),
(b) a breach of an integrated forestry operations approval,
(c) a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,
(d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.
(3) This section does not apply to any proceedings brought by -
(a) a Minister, or
(b) the Environment Protection Authority or a member of the staff of the Authority, or
(c) in the case of the provision of an Act referred to in subsection (1)(b) - a government agency or any government official engaged in the execution or administration of the Act.
Importantly, the statutory scheme included no attempt by way of a privative clause to limit the availability of judicial review by way of orders in the nature of prerogative relief. Accordingly, relief remained available pursuant to s 69 of the Supreme Court Act 1970 (NSW) which, though involving statutory recognition of general law principles, left those general law principles largely unaffected. [8] Thus, not only did s 69ZA(1) not engage with the general law, but the applicants were not constrained to enforcement proceedings under statute, but could have sought prohibition or an injunction according to general law principles.
Finally, although reliance was sought to be placed on statements made by the Minister in introducing the current legislative scheme in 1998, those statements, as Griffiths AJA explains, provide no support to the respondent's contention. While the Minister said that the clause which was the forerunner of s 69ZA "removes the rights of the third parties to bring proceedings relating to the integrated approval", [9] that statement was true as far as it went (because the provision disapplied open-standing provisions), but did not expressly address standing under the general law.
It follows that the respondent's contention must be rejected: s 69ZA should be understood to operate precisely as its terms indicate, namely as the disapplication of statutory open-standing provisions, which might in their own terms otherwise be engaged. That would disapply s 13.14 of the Biodiversity Act, if it were otherwise engaged.
The phrase "special damage" was adopted from the reasoning of Buckley J in Boyce v Paddington Borough Council. [15] However, as the joint reasons of Gaudron, Gummow and Kirby JJ noted in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, [16] the requirement that a plaintiff suffer "special damage peculiar to himself" derived from the cause of action in Boyce (being public nuisance), and was replaced in Australian Conservation Foundation v The Commonwealth [17] with a "special interest" test. The joint reasons in Bateman's Bay also stated:
"46 In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA),[ [18] ] reference was made to the requirement that the plaintiff have 'a special interest in the subject matter of the action'. Their Honours stated that the rule is flexible and continued that 'the nature and subject matter of the litigation will dictate what amounts to a special interest'. This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to 'deny to an important category of modern public statutory duties an effective procedure for curial enforcement'."
Two other possible limitations should be noted. First, a special (or sufficient) interest to permit the commencement of proceedings is not excluded by having an intellectual or emotional concern for the protection of the environment. In Australian Conservation Foundation, Gibbs J stated (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 emotion concern …. 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."
However, an intellectual or emotional concern, whilst not sufficient, is not a disqualifying consideration. In Onus v Alcoa of Australia Ltd, [19] Stephen J stated:
"… I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject-matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject-matter. What is more, the absence of mere material interest in that subject-matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests."
Secondly, despite the prevalence of open-standing provisions, dating in federal jurisdiction from the Patents Act 1903 (Cth), [20] there are statements in the authorities expressing concern that such a provision would be open to abuse "by busybodies and cranks and persons actuated by malice". [21] However, in commenting on s 80(1) of the Trade Practices Act 1974 (Cth) Deane J stated in Phelps v Western Mining Corporation Ltd: [22]
"The argument that to give the words which the Parliament has used their ordinary meaning would, to use a popular phrase, 'open the flood-gates of litigation' strikes me as irrelevant and somewhat unreal. Irrelevant, in that I can see neither warrant for concluding that the Parliament did not intend that flood-gates be opened on practices which contravene the provisions of the Act nor reason for viewing that prospect, if it were a realistic one, with other than equanimity. Unreal, in that the argument not only assumes the existence of a shoal of officious busybodies agitatedly waiting, behind the 'flood-gates', for the opportunity to institute costly litigation in which they have no legitimate interest but treats as novel and revolutionary an approach to the enforcement of laws which has long been established in the ordinary administration of the criminal law."
The statement was cited with evident approval by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd. [23] Further, it has been remarked that the courts have well-established powers to deal with frivolous, vexatious or abusive proceedings. [24]
Truth About Motorways is a case which bears consideration in the present circumstances. [25] A concern had been raised in earlier judgments as to whether an open-standing provision in federal legislation would involve the conferral of non-judicial power. [26] In rejecting that concern, the High Court treated the issue of standing as immaterial to the determination of whether there was a justiciable matter. It follows that in principle the focus of an inquiry into standing is properly directed to the nature of the breach of duty and the relief sought; the applicant must establish an "interest" in these matters which sets it apart from the public at large.
In Onus, Stephen J identified the deliberately amorphous criterion of "special interest" as involving "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". [27]
This approach is also consistent with that of Brennan J in Onus, cited with approval by the joint reasons in Bateman's Bay: [28]
"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."
As French CJ observed in Kuczborski v State of Queensland [29] to find that a proceeding raises a "matter" in federal jurisdiction "may not be sufficient to answer the question whether the plaintiff has standing". And as the joint judgment in Kuczborski explained, "the established requirements as to standing helped to ensure that the exercise of judicial power is informed, as fully as possible, by the 'concrete adverseness which sharpens the presentation of issues'". [30] The application of that functional approach is pertinent in the present case.
Thus, where an applicant establishes that it has the ability to muster expert resources and legal representation to sharpen the presentation of issues, the nature of the interest it must demonstrate in the subject of a justiciable dispute should not be narrowly confined.
For reasons which follow, the appeal should succeed on that ground.
The appellant also contends that the primary judge erred in determining that she had the power not only to dismiss its interlocutory application seeking interim injunctive relief to restrain the respondent from carrying out the forestry operations, but also to determine on a final basis that the appellant's substantive proceeding should be dismissed for lack of standing (ground 1). The appellant further contends that there was procedural unfairness when her Honour dismissed the appellant's summons for lack of standing (ground 2).
For reasons which will be developed, because the appeal should succeed on the issue of the appellant's standing, there is no need to determine the other two grounds outlined above. There is, however, a notice of contention which must be addressed.
These reasons for judgment are structured as follows. First, I will outline the statutory framework within which forestry operations are carried out in NSW. I will then outline some background procedural matters and facts before summarising the primary judge's reasons for judgment in South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of NSW [2024] NSWLEC 7 (PJ or primary judgment). I will then explain why I reject the respondent's notice of contention (which claims that the primary judge should have held that common law standing was ousted by the statutory scheme). Finally, I will explain why I respectfully consider that her Honour erred in not holding that the appellant has standing to bring the civil enforcement proceedings which are described in the summons filed on 15 January 2024 in the Land and Environment Court (LEC). For convenience, in these reasons I will generally refer to South East Forest Rescue Incorporated as the "appellant", in relation to both the appeal and the proceeding below, but will refer to it as "SEFR" for the period leading up to its incorporation in September 2010.
The principles of ecologically sustainable forest management are defined in s 69L(2).
Section 69M provides for the granting of approvals for the carrying out of forestry operations to which Pt 5B applies. It relevantly provides (emphasised words in the text are defined terms):
69M Granting of approvals
(1) Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval.
(2) This Part does not prevent or affect the carrying out of forestry operations authorised under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.
…
Section 69P provides for the terms of an integrated forestry operations approval, including for the imposition of conditions and the application or adoption of protocols, codes, standards or other instruments (including protocols prepared by the Environment Protection Authority (EPA)). It provides:
69P Terms of approval
(1) An integrated forestry operations approval is to describe the forestry operations covered by the approval, including a description of the area of the State to which it applies.
(2) An integrated forestry operations approval is -
(a) to make provision for or with respect to the carrying out of forestry operations covered by the approval, and
(b) to set out conditions subject to which those forestry operations are to be carried out, including conditions that may be imposed under any of the following -
(i) a biodiversity conservation licence under the Biodiversity Conservation Act 2016,
(ii) a licence under Part 7A of the Fisheries Management Act 1994,
(iii) an environment protection licence under the Protection of the Environment Operations Act 1997.
(3) An integrated forestry operations approval may apply or adopt protocols, codes, standards or other instruments that are publicly available and in force from time to time.
(4) Without limiting subsection (3), any such protocols may include those prepared by the Environment Protection Authority.
An integrated forestry operations approval may have effect for a period not exceeding 20 years unless revoked sooner (see s 69Q(1)).
The integrated forestry operations approval under which the respondent carried out the forestry operations the subject of these proceedings is styled "Coastal Integrated Forestry Operations Approval - Conditions" (CIFOA) which commenced in November 2018. The CIFOA applies to forestry operations in four coastal subregions: the Upper North East subregion, Lower North East subregion, Southern subregion, and Eden subregion, all situated along the coast of NSW. Part 3 of Sch 1 to the CIFOA contains maps which show certain parts of each of the four subregions where the CIFOA does not apply. Both the CIFOA Region (i.e., the entire area covered by the CIFOA) and the subregions are mapped in what are described as "spatial datasets".
The CIFOA is a detailed document totalling approximately 80 pages. It contains eight chapters which deal with the following subjects:
• Chapter 1 - Scope and interpretation
• Chapter 2 - Administrative conditions
• Chapter 3 - Planning conditions
• Chapter 4 - Operational planning and implementation
• Chapter 5 - Operating conditions
• Chapter 6 - Mapping
• Chapter 7 - Regeneration
• Chapter 8 - Monitoring conditions
There are express references in the CIFOA to "Protocols". The Protocols are all contained in a separate document entitled "Coastal Integrated Forestry Operations Approval - Protocols", which is published by the EPA. One version in evidence is dated September 2023.
Focusing on the particular CIFOA conditions which are relevant to this proceeding, Conditions 56 and 57 (which relate to targeted flora and fauna surveys and broad area habitat searches respectively) relevantly state (emphasised words are defined terms):
"56. Targeted flora surveys and targeted fauna surveys
…
56.3 Any subject species or habitat feature detected in a targeted flora survey and/or targeted fauna survey must be:
(a) managed and protected in accordance with the applicable requirements of the approval and protocols; and
(b) mapped in accordance with condition 117 of the approval.
…
57. Broad area habitat searches
57.1 A forestry operation (other than road maintenance) must not be conducted in any part of an operational area unless:
(a) at least 100 metres in advance of the forestry operation occurring in any part of the operational area, the base net area has been broken up into patches that are no more than 10 hectares in size and mapped in accordance with condition 117 of the approval;
(b) a broad area habitat search has been undertaken in accordance with condition 57 of the approval in the patch that contains that part of the operational area; and
(c) the broad area habitat survey was completed within a maximum of six months prior to the commencement of the forestry operation in that patch.
57.2 Each search must:
(a) be carried out by a suitably qualified person;
(b) be carried out in, and within 100 metres of, the base net area of the operational area;
(c) look for, identify, and record the habitat features and species listed in Table 2 of this condition; and
(d) be conducted in accordance with condition 20.2 and 20.5 of Protocol 20: Pre-operational surveys.
57.3 All habitat features or species listed in Table 2 and identified under condition 57.2(c), or which were not identified under that condition but identified later during the carrying out of forestry operations, must be:
(a) protected in accordance with the requirements for that habitat feature or species in the approval and the protocols; and
(b) mapped in accordance with condition 117 of the approval.
It is to be noted that Table 2 identifies "Nest, roost or den trees" (one example of which is in Table 4, Ch 4 of the CIFOA) as habitat features that must specifically be searched for during broad area habitat searches.
Table 4 of Ch 4 (which is in Condition 76) includes a reference to den trees in connection with the reference to the three subject glider species in respect of which there is to be a 50 metre radius exclusion zone:
It should also be noted that the expression "nest, roost or den" is defined in Protocol 39, which relevantly states (emphasised words are defined terms):
"A feature that includes at least one of the following:
…
3 A den (specifically in relation to [the three subject glider species]) that includes, but is not limited to, a tree-hollow or other hole, crevice or fissure in a tree, which the subject species is seen entering or leaving. The dens may be used by the animal for roosting, sleeping, resting, breeding, raising young and communal congregations sheltering and/or the rearing of young;
…"
This definition is at the heart of the parties' substantive dispute. The dispute relates to what the respondent must do in order to comply with the requirement that it conduct a broad area habitat search (under Condition 57 of the CIFOA), with particular reference to dens associated with the three subject glider species. In brief, the appellant contends that the respondent is obliged to find every hollow-bearing tree in a relevant compartment and to examine sufficient tree-hollows etc. in each identified hollow-bearing tree to determine whether at least one such hollow is used by one of the three subject glider species for roosting, sleeping, resting, breeding, raising of young and communal congregations, shelter, and/or the rearing of young.
In contrast, the respondent's position is that its obligations are more limited. It places emphasis upon that part of the definition of "nest, roost or den" in Protocol 39 which refers to "a tree-hollow or other hole, crevice or fissure in a tree, which the subject species [i.e., the three glider species] is seen entering or leaving" (emphasis added). Thus, the respondent contends that sighting one of the three glider species entering or leaving a tree-hollow or other hole, crevice or fissure in a tree is a pre-requisite to it having to take any further steps as part of the search. According to its position, it is insufficient that a glider has been sighted other than one entering or leaving a tree hollow etc.
Division 3 of Ch 4 of the CIFOA is titled "Retained trees". Conditions 63 and 64 specifically address "tree retention clumps" and "retained trees" and require the identification and retention of a certain amount of tree retention clumps, and certain types of trees (including hollow-bearing trees). These conditions are to be complied with in accordance with Protocols 22 and 23 respectively.
Division 4 of Ch 4 contains species-specific conditions for fauna. The outcome statement (which is a little akin to an objects clause, as defined in Ch 1, Div 1, cl 4.1 of the CIFOA) for Div 4 declares that site-specific measures are implemented to mitigate the impact of forestry operations on fauna species and their habitat and to support their persistence. Condition 76 relates specifically to nests, roosts and dens. It requires an exclusion zone to be retained around each nest, roost or den as specified in Table 4 (see [66] above). As noted above, one species-specific fauna condition applicable to the three subject glider species is the maintenance of a 50 metre radius exclusion zone around den trees.
On 29 January 2024, the appellant sought to file an additional notice of motion (the second notice of motion). It sought urgent interlocutory relief in relation to an additional 19 compartments in all four subregions covered by the CIFOA (being the compartments which it had unsuccessfully sought to include in the amended notice of motion filed on 19 January 2024).
The hearing of the amended notice of motion took place on 31 January 2024 and judgment was reserved.
The second notice of motion was listed for mention on 2 February 2024. The respondent's position, in respect of both the amended notice of motion and the second notice of motion, was that the appellant lacked standing. It urged the Court to determine that question in relation to the relief sought in the amended notice of motion as a final matter, and not simply on a prima facie basis. The respondent suggested that the second notice of motion be listed for hearing after judgment was delivered on the amended notice of motion.
On 2 February 2024, the second notice of motion was listed for hearing on 8 February 2024. Her Honour indicated that she would deliver judgment on the amended notice of motion the day before.
In light of the primary judge's reasons for judgment published on 7 February 2024, which explained why the amended notice of motion was dismissed for lack of standing, the respondent again urged the Court to dismiss both the second notice of motion and the substantive proceedings based on the appellant's lack of standing. Orders to that effect were made on 8 February 2024. No separate reasons for judgment were published in relation to the making of those orders. Her Honour published a second judgment on 15 April 2024 as to why there should be no order as to costs concerning the orders dated 7 and 8 February 2024 (see South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36).
Although describing the matters which supported the appellant having standing (as further summarised at PJ[135]), her Honour explained at PJ[136] why she was not satisfied that the appellant had demonstrated a prima facie case for standing at common law, referring to the following matters:
"(1) SEFR is registered as South East Forest Rescue Incorporated. The compartments the subject of the relief sought in the amended notice of motion are in three FCNSW sub-regions: Lower North East subregion, Upper North East subregion and Southern subregion.
(2) SEFR was formed for the purposes of 'ending native logging in NSW'. Notwithstanding that, the evidence is that its activities have largely been focussed in South East NSW. Moreover, and significantly these proceedings are concerned with the protection of Southern Great Gliders.
(3) The evidence of Mr Daines, whilst detailed, is unclear as to the role and activities of each of the six members of SEFR, and others, in pursuit of the objects of SEFR, as well as the knowledge and experience of any of them, including Mr Daines, in relation to the protection of native forests in NSW and Southern Great Gliders in particular.
(4) The meetings of SEFR's governing committees (as of 2023 made up of 3 people) and its six members several times a year occur virtually via video conferencing platforms and telephone, with the day-to-day operations of SEFR being run by Lisa Stone (who joined as a member in 2006) and Mr Daines. The day-to-day operations of SEFR, its resources and sources of funding are not the subject of evidence.
(5) Mr Daines deposes to activities of SEFR commencing around 23 September 2023, that is recently, aimed at protecting Southern Great Gliders and their habitat."
At PJ[137], after noting that each case turned on its own facts, the primary judge contrasted the composition and history of the appellant with that of the Australian Conservation Foundation (ACF). After citing "ACF v Commonwealth", her Honour then stated:
"137 …the ACF was able to demonstrate its special interest was in forests that are part of the National Estate; that it was established with government financial support to concern itself with issues the subject of the proceedings; and that it was the pre-eminent body concerned with that issue. SEFR is not akin to the ACF in terms of scale, pre-eminence, membership, government funding or government recognition."
Although in this passage the primary judge expressly refers to "ACF v Commonwealth", which appears to be a reference to ACF - HCA (and this is the only judgment involving the ACF referred to in the list of cases cited at the beginning of the judgment), it must be Davies J's later decision in Australian Conservation Foundation v Minister for Resources [1989] FCA 794; (1989) 76 LGRA 200 (ACF - FCA) which her Honour had in mind when she said that the ACF was able to demonstrate its special interest. Unlike the outcome in ACF - FCA, the ACF failed to establish standing in ACF - HCA.
The primary judge also emphasised the need, in determining standing, to take into account the avoidance of a multiplicity of proceedings (referring to Brennan J's observations in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75; [1981] HCA 50).
Finally, at PJ[139], the primary judge noted that, while the appellant's activities reflected a deep a long-standing interest in native forests, the evidence did not establish even a prima facie case that its activities were undertaken "as a group that manifest itself in the incorporated association", referring to Binginwarri at [61]-[62] per Niall JA.
Section 69ZA is at the core of the respondent's notice of contention. It is notable that the effect of s 69ZA(2) is to prohibit the bringing of proceedings under a statutory provision to which the section applies where there is an alleged breach of an integrated forestry operations approval, of which the CIFOA is an example. Importantly, however, that prohibition only applies to proceedings brought under any of the statutory provisions identified in s 69ZA(1). Sub-section 69ZA(1)(b) picks up what might be described as "open standing provisions" in any Act, which includes s 13.14 of the BC Act (which is set out below). Section 69ZA provides:
69ZA Application of statutory provisions relating to proceedings by third parties
(1) This section applies to the following statutory provisions -
(a) section 252 or 253 of the Protection of the Environment Operations Act 1997,
(b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,
(c) section 219 of the Protection of the Environment Operations Act 1997.
(2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows -
(a) a breach of this Part (including a breach of any forest agreement),
(b) a breach of an integrated forestry operations approval,
(c) a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,
(d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.
(3) This section does not apply to any proceedings brought by -
(a) a Minister, or
(b) the Environment Protection Authority or a member of staff of the Authority, or
(c) in the case of the provision of an Act referred to in subsection (1)(b) - a government agency or any government official engaged in the execution or administration of the Act.
As noted above, one of the statutory open standing provisions to which s 69ZA applies is s 13.14 of the BC Act. I will now set out that provision, along with s 13.14A, which provides for the EPA to bring civil enforcement proceedings in relation to Pt 5B of the Forestry Act.
13.14 Civil proceedings to remedy or restrain breaches of this Act or regulations (or Part 5A or 5B of the Local Land Services Act 2013)
(1) Any person (including the Environment Protection Authority) may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of -
(a) this Act or the regulations, or
(b) Part 5A or Part 5B of the Local Land Services Act 2013 or the regulations under that Part.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations or for a native vegetation offence.
(3) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(4) Without limiting the powers of the Court under this section, an order under this section may suspend any biodiversity conservation licence or any approval, certificate or other authority under the Local Land Services Act 2013.
13.14A Civil proceedings to remedy or restrain breaches of Part 5B of the Forestry Act 2012
(1) The Environment Protection Authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of Part 5B of the Forestry Act 2012.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for a native vegetation offence under Part 5B of the Forestry Act 2012.
(3) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(4) Without limiting the powers of the Court under this section, an order under this section may suspend an integrated forestry operations approval with respect to the forestry operations concerned in the breach.
The respondent's contention that common law standing is ousted by the statutory scheme may be summarised as follows:
1. Section 69SB states that the EPA has the function of enforcing compliance with the requirements of integrated forestry operations approvals, in circumstances where the concept of "enforcing compliance" is expressly defined in s 69SB to include "instituting criminal or civil proceedings".
2. This is further reinforced by s 69SB(2) which provides that the BC Act contains provisions relating to the enforcement of Pt 5B, with the consequence that the enforcement powers under the Forestry Act are "not exercisable in relation to any matter arising under this Part".
3. Section 69L (which is set out at [56] above) provides that one of the purposes of Pt 5B is to "[integrate] the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation". This integration is implemented through Div 4, which specifies that various provisions of other environmental legislation providing for open standing do not apply.
4. When these provisions are read together with relevant provisions of the BC Act (as referred to in s 69SB(2) of the Forestry Act), s 13.14A of the BC Act (which was introduced at the same time as s 69ZA) provides in its current form that it is the EPA which may bring proceedings in the LEC to remedy or restrain breaches of Pt 5B of the Forestry Act.
5. While acknowledging that the statutory scheme does not expressly state that the public authorities identified in s 69ZA(3) have exclusive authority to bring proceedings, the respondent contended that this was the clear intention. It pointed to what the Minister said in the second reading speech which introduced the predecessor provision to s 69ZA, namely s 40 of the Forestry and National Park Estate Act 1998 (NSW):
"A central theme running through this legislation is the provision of certainty for all parties. The environmental movement quite rightly received the certainty of a substantial area of high-quality land being placed into the national parks system. The industry, workers and the corporate sector also deserve a higher level of certainty. The Government has gone some way towards providing that certainty by the provision of long-term wood supply agreements on a five-year plus five-year basis.
Certainty cannot be increased if we continue to allowed challenges to the licensing system. Clause 38 [later s 40] removes the rights of third parties to bring proceedings relating to the integrated approval. The compliance regime that will apply to the integrated approval is clear and unambiguous. The agencies which currently have enforcement and compliance powers will continue to have those powers and continue to use them to ensure that the licences are adhered to…". (Emphasis added.)
1. The respondent also contended that its position was consistent with the surrounding context of s 13.14A of the BC Act. That provision is accompanied by other provisions which identify who may bring proceedings in relation to breaches of specified legislation. Section 13.14 provides that it is "any person", including the EPA, who can bring civil proceedings in respect of breaches with which it is concerned (see also ss 13.15 and 13.16).
2. The respondent contended that these provisions assisted in the proper construction of s 13.14A because each of the provisions uses the language of "may" which it claims should be read as limiting the class of persons who can bring proceedings. The respondent contended that, otherwise, those parts of the provisions which require the consent of the Minister for any other person to bring proceedings would be rendered otiose.
For the following reasons, I do not accept those submissions. I respectfully consider that they were correctly rejected by the primary judge substantially for the reasons set out at PJ[128].
First, as the respondent correctly acknowledged, none of these provisions expressly ousts common law standing. That, of course, is not the end of the matter because the relevant issue then becomes whether, read as a whole, the statutory scheme has that effect.
Secondly, I consider that, properly construed, provisions such as s 69SB(1) of the Forestry Act and s 13.14A(1) of the BC Act (and, in particular, the use of the term "may" in the latter provision, as well as in ss 13.15 and 13.16 of the BC Act) should be viewed as enabling rather than limiting provisions. Contrary to the respondent's submissions, this construction does not render otiose the requirement in ss 13.15(2) and 13.16(1) for a person to obtain the written consent of the Minister to bring a bringing proceeding. That requirement constitutes a precondition to open standing in circumstances to which those provisions apply. Viewed that way, the provisions do not confer exclusive authority upon the EPA to enforce integrated forestry operations approvals.
Thirdly, it may be accepted that a provision such as s 13.14(1) of the BC Act, which confers standing on "any person" to bring civil enforcement proceedings for a breach of the BC Act or other legislation specified in that provision, is an open standing provision which is caught by the prohibition imposed by s 69ZA(2). Such a statutory open standing provision is to be contrasted, however, with common law standing. As has been emphasised, the statutory scheme is entirely silent on whether the prohibition applies to modify or oust common law standing.
Fourthly, the second reading speech does not support the respondent's position. It is stated there that cl 38 (the predecessor provision to s 40 of the Forestry and National Park Estate Act and which itself was in substantially similar form to the current s 69ZA) "removes the rights of third parties to bring proceedings relating to the integrated approval". Significantly, however, that statement does not squarely address common law standing. Viewed in context, the statement is directed to open standing. If I am wrong in taking that view, I consider that this is an instance where the approach in Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 applies, namely that in statutory construction a second reading speech cannot be determinative or be substituted for the text of enacted legislation.
In my view, much clearer language than that which appears in the provisions relied upon by the respondent is required to oust well established common law standing. This is consistent with the well settled presumption that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights, privileges or liberties other than by a law expressed with "irresistible clearness" (see e.g., Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 437; [1994] HCA 15 per Mason CJ, Brennan, Gaudron and McHugh JJ; and Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [19] per Gleeson CJ). The presumption applies here where it is contended that the statutory scheme should be construed as abrogating common law principles of standing in the context of civil enforcement proceedings concerning Pt 5B of the Forestry Act. None of the matters relied upon by the respondent satisfy the requirement that any abrogation of common law standing be manifested by irresistible clearness.
The presumption referred to above is sometimes referred to as the "principle of legality". It is unnecessary to enter into the debate as to the appropriateness of that language (see Herzfeld and Prince, Interpretation (Lawbook Co, 2nd ed, 2020) at [9.60]). As noted by the plurality (Edelman, Steward and Gleeson JJ) in Hurt v The King [2024] HCA 8 at [106], the principle of legality is itself a principle of interpretation. The plurality referred approvingly to the following observations regarding the limits of the principle of legality in Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39:
"[314] …The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked..."
It is sufficient to observe that that limitation does not apply here because there is nothing to suggest that one of the objects of the statutory scheme is to abrogate or curtail common law standing, as opposed to statutory open standing.
For all these reasons, I would reject the notice of contention.
The practical consequences of the doctrinal foundations for public law standing requirements have been expressed in various ways. For example, in Onus at 35, Gibbs J referred to the need to guard against legal processes being "abused by busybodies and cranks and persons activated by malice", as well as discouraging public law litigation by persons who have no greater interest than an "intellectual or emotional concern". In Onus, Brennan J emphasised at 74 that where a person seeks to enforce compliance with a public duty, "standing is to be found in some affection or threatened affection of the plaintiff's interests by the defendant's breach or apprehended breach of the duty". His Honour added at 75 that it was also "material to consider whether the plaintiff has shown so distinctive an interest that his action to enforce the defendant's public duty is likely to avoid a multiplicity of actions".
In Onus, Brennan J at 75 referred approvingly to the following observations of Mason J in Robinson at 327-328 which highlight the fluid nature of the test for standing:
"…In truth [the rule] reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions. Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right - cases which are notorious for their difficulties."
To similar effect, in Bateman's Bay at [50], after tracing the development of use of equitable remedies to support the public interest in the due administration of the law, the plurality emphasised that "[r]easons of history and the exigencies of present times indicate that this criterion [i.e., there being standing by a party with a sufficient material interest in the subject matter] is to be construed as an enabling, not a restrictive, procedural stipulation".
Whether or not particular steps or activities are sufficient to demonstrate a special interest will depend on the subject matter of the proceeding and are necessarily fact and context specific. As Brennan J stated in Onus at 75, whether a person has shown a sufficient interest in the particular case "must be a question of degree, but not a question of discretion".
Standing is another area of law where it is important to resist adopting and applying a particular formula. Such an approach is unlikely to be productive. Moreover, at least in some instances, it may serve to unduly restrict access to the courts. Thus, in the particular context of standing to seek equitable relief in enforcing public law, Gaudron, Gummow and Kirby JJ made the following important observations in Bateman's Bay (footnotes omitted):
"46 In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have 'a special interest in the subject matter of the action'. Their Honours stated that the rule is flexible and continued that 'the nature and subject matter of the litigation will dictate what amounts to a special interest'. This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to 'deny to an important category of modern public statutory duties an effective procedure for curial enforcement'."
Consideration of the subject matter of the proceeding requires attention to be paid to the statutory context (including the role, if any, that a plaintiff has in the statutory scheme), the nature of the power, and the form of relief sought by a plaintiff (see Kinglake at [60(e)]).
The fact and context specific nature of the "special interest" test, as well as its fluid and evolving nature, is well illustrated by the different outcomes in ACF - FCA and the previous decision in ACF - HCA. In ACF - HCA. the majority found that ACF lacked standing to seek declaratory and injunctive relief directed to approvals granted under and in relation to the Banking (Foreign Exchange) Regulations 1959 (Cth). In ACF - FCA, Davies J held that the ACF had standing as an "aggrieved person" to bring a judicial review challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) concerning the Minister's decision to grant a licence to export woodchips. The ACF contended that the licence contravened s 30 of the Australian Heritage Commission Act 1975 (Cth) (which imposed obligations on the Minister which were intended to protect the National Estate of which the forests the subject of the proceeding formed part and was where the woodchipping activities would be conducted).
After emphasising at 204 that the question of standing must be examined "in the light of the issue which is to be considered", Davies J referred approvingly to Stephen J's statement in Onus at 42, concerning the distinction between ACF - HCA and Onus:
"… 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."
In concluding that the ACF had standing, Davies J was influenced by the following matters:
1. the judicial review proceedings related to a matter of national significance (namely the protection of the National Estate) and it was not merely a local issue as had been the case in ACF - HCA;
2. in the decade since ACF - HCA was decided, "public perception of the need for the protection and conservation of the natural environment" and the need of bodies such as the ACF to act in the public interest had "noticeably increased", as was reflected in the growth of the ACF itself;
3. in determining standing, it is necessary to take account of current community perceptions and values (citing Stephen J's observations in Onus at 42);
4. the ACF was the "major national conservation organisation in Australia and was established with a view, inter alia, to reconcile the use exploitation of resources with the conservation of the national environment";
5. the ACF received substantial annual funding from both Commonwealth and State governments;
6. it was "uniquely involved with governments and other organisations in achieving a proper balance between environmental protection and economic development";
7. the ACF was no "mere association of individuals having like views" - it was a large enterprise with an income and expenditure in 1988-1989 of approximately $2.75 million; and
8. at 206, Davies J said:
"While the ACF does not have standing to challenge any decision which might affect the environment, the evidence thus establishes that the ACF 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 ACF 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 preeminently the body concerned with that issue. If the ACF does not have a special interest in the South East forests, there is no reason for its existence."
Subsequently, in North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 at 502; [1994] FCA 989, Sackville J said that, while there had been "a progressive widening" of the law of standing, there was no inconsistency between ACF - FCA and ACF - HCA. Illustrating again that the question of whether an applicant has a "special interest" is heavily fact and context specific, Sackville J concluded that the applicant there was a "person aggrieved" for the purposes of s 13 of the ADJR Act in requesting the Minister to provide it with a statement of reasons for his decision to grant a licence to export woodchips from the North Coast of NSW (at 513). In reaching that conclusion, Sackville J noted that the applicant:
1. was the peak environmental organisation in the North Coast area of NSW where the woodchips' operation would occur;
2. had been recognised by the Commonwealth as a significant and respected environmental organisation by providing it with recurrent, albeit modest, funding;
3. had been recognised by the NSW government as a body that should represent environmental concerns on advisory committees;
4. had conducted or coordinated projects and conferences on matters of environmental concern (although not specifically concerned with forest management or wood chipping) for which it received significant Commonwealth funding; and
5. had made submissions on forestry management issues and funded a study of old growth forests.
Applying his earlier analysis in North Coast, Sackville J subsequently held in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035 that the Tasmanian Trust had standing for the purposes of a judicial review challenge to the Minister's decisions to grant a woodchips export licence and to give an in-principle approval to export wood chips. His Honour pointed to the following matters as manifesting the Trust's concern with the subject matter of the Minister's decisions and the closeness of its relationship with that subject matter (at 552-553):
"• First, the Trust is the peak environmental organisation for Tasmania, recognised as such by the State and Commonwealth governments. Its activities include research, advice, lobbying and consultations in relation to Tasmanian forests and to woodchipping in Tasmania. Its areas of concern include the forests the subject of its licence and the in-principle approval.
• Secondly, the Trust has been recognised by the Commonwealth as a significant and responsible environmental organisation. This is reflected in the Trust's membership of the Peak Conservation Organisation since 1983 and in the annual administration grants provided by the Commonwealth to the Trust. Recognition of the importance of the trust's role is also shown by the extensive support given by Commonwealth agencies to projects undertaken by the trust or in which it has participated.
• Thirdly, the Trust is recognised by the Tasmanian Government as a body that should represent environmental interests on advisory or consultative bodies. Its annual reports show that it is represented on a large number of committees and advisory bodies, covering a wide range of topics, including forestry issues.
• Fourthly, the research and advisory activities of the Trust, although extensive, have involved detailed considerations of woodchipping and the preservation of Tasmanian forests, the very subject matter of the present litigation. It is of particular significance that the Trust, either alone or in combination with other conservation organisations, has received Commonwealth funding to undertake projects designed to identify forests of high conservation value and to consider their relationship with proposed woodchipping activities.
• Fifthly, the Trust has made submissions and engaged in other activities (such as supporting areas for inclusion in the World Heritage) that demonstrate its commitment to conservation values. These activities go well beyond submissions made in relation to the 1985 EIS that has been referred to earlier.
• Sixthly, while, as appears from North Coast, I do not regard the size of an organisation or its resources as a critical factor, the Trust is a substantial body, in terms of membership, income and range of activities."
The need to adopt a multifactorial approach in assessing whether an applicant has a special interest which distinguishes it from ordinary members of the public is well illustrated by the decision of the Full Court of the Federal Court in Animals' Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173. The appellant there was an international animal protection organisation which sought judicial review under both the ADJR Act and s 39B of the Judiciary Act 1903 (Cth) in respect of the respondent's decision not to issue a show cause notice under s 23(1) of the Australian Meat and Live-stock Industry Act 1997 (Cth) arising from allegedly false statements and poor operational practices concerning the export of live animals.
The primary judge held that the applicant lacked standing largely because of its lack of presence in Australia; its limited recognition in Australia by Commonwealth or State governments (including not extending financial grants or assistance); the lack of any evidence as to its commitment of financial resources to animal welfare in Australia; the lack of any evidence of any co-ordination of its activities with Australian based animal welfare organisations; the broader and global nature of its objects or purposes concerning animal welfare; and the lack of utility of the relief sought (see Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398).
Allowing the appeal, Kenny and Robertson JJ (with whom Pagone J agreed) concluded that the appellant had a special interest. Their Honours emphasised at [121] that standing "requires a sufficient interest, not one which is a unique interest or the strongest interest compared with others who may have an interest". Contrary to the primary judge's view, Kenny and Robertson JJ concluded that the appellant had standing because:
"120 …in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant's status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant's objects or purposes do not derogate from the appellant's engagement in Australia; the appellant's Australian activities do intersect with the appellant's objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant's objects or purposes."
As the analysis above demonstrates, cases such as ACF - HCA and ACF - FCA demonstrate the fact and context specific nature of the "special interest" test. That fundamental point is further illustrated by contrasting the different outcomes on standing in Kinglake and Blue Derby.
In Kinglake, the following matters underpinned the Court's conclusion that the appellant had standing to seek civil enforcement relief:
1. the appellant had a direct and ongoing involvement in the particular local environment and, in that sense, was an "active user" of the Central Highlands forests in which the relevant timber harvesting operations were being conducted;
2. the appellant had taken concrete steps to give effect to its beliefs concerning environmental protection, as was demonstrated by its involvement in, or support for, research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, as well as political lobbying;
3. the nature and extent of the appellant's activities (such as wildlife spotting nights and forest surveys, as well as its community engagement, education and reporting of alleged contraventions) indicated that it had an interest in the protection of the local environment which was qualitatively different from the interests of ordinary members of the public; and
4. notwithstanding that there was no evidence that the appellant had received government funding, this was not viewed as dispositive, particularly in circumstances where a group is challenging government action or inaction and "it would be perverse if standing depended upon some previously conferred governmental imprimatur" (see Kinglake at [79]).
In contrast, the appellant in Blue Derby was found to lack standing. This was largely because of the limited nature of the evidence filed by the appellant with the object of demonstrating its standing, as well as the subject matter of the proceeding. The appellant challenged the certification by Sustainable Timber Tasmania of forest practices plans which provided the framework for the harvesting of timber. The appellant claimed that the persons who certified the plans had not received valid delegations or, alternatively, their decisions were invalidated because of apprehended bias.
The following matters influenced the Full Court's decision in Blue Derby that the appellant lacked standing:
1. the relevant legislation provided no role for the appellant in the preparation of forest practices plans;
2. the appellant did not possess any "interest" which entitled it to participate in any stage of the preparation of a forestry plan or its approval;
3. the subject matter of the litigation itself did not relate to the lawfulness of logging pursuant to the approved plan, nor did the qualifications or expertise of the delegates who certified the plan;
4. in contrast with the subject matter in Kinglake, where the central issue was the lawfulness and not the merits of proposed logging operations, the subject matter of the proceeding concerned apprehended bias by delegates who certified the plans and whether certification was conditioned upon compliance with the rules concerning apprehended bias; and
5. there was a paucity of evidence as to the appellant's activities as an incorporated association, in contrast with the activities of individual members and supporters in their personal capacity.
It may be noted that, on 23 April 2024, the High Court refused special leave to appeal in Blue Derby Wild Inc v Forest Practices Authority [2024] HCATrans 29. There was insufficient doubt concerning the correctness of the Full Court's conclusion on standing. Reference was also made to the obscurity of the evidence concerning the nature and extent of Blue Derby's activities which made the appeal an unsuitable vehicle to engage in a reconsideration of the principles of standing at general law.
I have highlighted some of the particular activities and factors which have underpinned particular findings of standing in previous authorities on standing. It is not intended to suggest that such activities and factors are definitive or dispositive. As emphasised, each case needs to be read in the light of its own particular factual and statutory context.
Secondly, these matters demonstrate the appellant's beliefs and concerns regarding particular aspects of environmental protection. Those matters may not be sufficient of themselves to establish standing, but the evidence also indicates that the appellant has taken a wide range of activities and concrete steps which give effect to those beliefs and concerns. For example, the appellant has:
1. filed 36 breach reports over a 20-year period complaining of particular instances of unlawful forestry operations; and
2. produced 38 reports, submissions and representations to various government bodies over a 14-year period, seeking to influence government to protect and preserve native forests. These publications (about which more will be said shortly) include six submissions to which the appellant contributed as a founding member of the South East Region Conservation Alliance (SERCA) to which the primary judge referred at PJ[135(5)], but also numerous publications in its own name.
Thirdly, the appellant's interest and concern to protect one or more of the three subject glider species and their habitat is not a recent development. The effect of logging hollow-bearing trees on the Greater Glider (and also in some cases on the Yellow-bellied Glider) has been specifically raised by the appellant in multiple submissions and representations by it dating back to 2010. The appellant's concerns regarding this particular topic were ventilated in its:
submission to the Forest Stewardship Council (2010);
representation to the NSW Parliament regarding Integrated Forestry Operations Approvals and Agreements (2010);
submission to the House of Representatives Standing Committee on Agriculture, Resources, Fisheries and Forestry (2011);
representation to the House of Representatives Standing Committee on Climate Change, Environment and the Arts (2011);
submission to the Senate Standing Committees on Environment and Communications in the Inquiry into the Effective of Threatened Species and Ecological Communities' Protection in Australia (2013);
representation dated 8 December 2016 to the then Minister for Environment, Mr Mark Speakman, concerning the EPA's failure to investigate the appellant's multiple breach reports and calling on the government to abolish s 69ZA of the Forestry Act;
submission to the Commonwealth government in the Inquiry into Long Term Sustainability and Future of the Timber and Forest Products Industry (2021);
submission to the Senate Standing Committees on Environment and Communications on proposed amendments to Commonwealth environmental legislation (2021);
submission to the same Senate Standing Committees regarding proposed amendments to climate change legislation (2022); and
report dated 10 November 2023 styled "What extinction looks like - A report on den tree logging breaches in Tallaganda State Forest", jointly authored together with WWF Australia and Wilderness Australia with particular reference to the effect on Greater Gliders of logging of nesting hollows (dens) in mature trees.
Fourthly, more recently, since 23 September 2023, the appellant has conducted surveys for Greater Glider den trees in various State forests, including a joint survey with Bellingen Activist Network on 4 December 2023 concerning the Styx River State Forest (which is one of the State forests the subject of the proceedings when they were initially commenced). On 5 December 2023, the appellant also submitted a breach report to the EPA which alleged breaches of Condition 76.1 of the CIFOA with respect to Greater Gliders and Yellow-bellied Gliders in that area.
As noted above, at PJ[135] the primary judge identified six parts of the appellant's evidence which she viewed as supporting its claim to have standing to bring the civil enforcement proceeding. The evidence related to the appellant's protest and community activities over the last 22 years aimed at opposing logging and promoting community awareness of the importance of preserving native forests; conducting post-logging audits and lodging breach reports to environmental authorities; bringing judicial review litigation on three previous occasions to protect NSW native forests from logging or mining; contribution to publications concerning the protection of native forests and their fauna and the appellant's media presence; involvement as a founding member of SERCA; and the evidence of the appellant's recent activities focused on increasing awareness of, and protections for, Greater Gliders.
I respectfully agree with her Honour that all these matters support the appellant's standing. With respect, however, I take a different view as to the five matters identified by the primary judge at PJ[136] as supporting her Honour's ultimate conclusion that the appellant lacked standing.
The first of those matters relates to the appellant's registered name as "South East Forest Rescue Incorporated". Her Honour viewed as significant the fact that the relief sought in the amended notice of motion related to the Northern part of the State and not the South East. In my view, this deserves little if any weight. The evidence demonstrates that the appellant's activities extend beyond the Southern and Eden subregions, including, for example, its conduct of nighttime surveys for Greater Glider den trees and other activities in the Lower North East and Upper North East subregions to which the interlocutory proceedings were specifically directed, including Styx River and Cloud's Creek respectively.
Even more significantly, however, is the fact that, as noted above, the summons (as opposed to the amended notice of motion and second notice of motion), seeks declaratory and injunctive relief in respect of forestry operations as authorised by the CIFOA generally, being all four subregions along the entire NSW coast. It is not confined to any particular subregion covered by the CIFOA. Moreover, the appellant's concern to highlight and draw attention to the connection between logging of hollow-bearing trees and protecting glider habitat, which is emphasised in many of the publications, submissions and representations referred to above with which the appellant has been associated, is not confined to forestry operations in the South Eastern part of the State. The concern applies more generally and extends to all areas which are now covered by the four CIFOA subregions.
The second matter which influenced the primary judge was that the appellant was formed for the purpose of "ending native logging in NSW", but the evidence indicated that its activities have largely been focused in South East NSW. Her Honour also attached significance to the fact that the proceedings were concerned with the protection of Greater Gliders.
This second matter overlaps with the first matter and I repeat what is said immediately regarding the first. In addition, while it may be accepted that the appellant was formed with a purpose of ending native logging in the State, and the proceedings are directed to protecting the three subject glider species, particularly the Greater Glider, the appellant's strong (and not unreasonable) view is that there is a necessary connection between logging hollow-bearing trees and protecting those species. This is manifested not only in the numerous and repeated references to the connection in the appellant's publications, submissions and representations as referred to above, but also in the appellant's Vision Statement (see at [150] above).
The third matter of import to the primary judge was the perceived uncertainty of Mr Daines' evidence concerning the role and activities of each of the six members of the appellant (and others) in pursuing the appellant's objects, as well as the knowledge and experience of any of them, including Mr Daines, in protecting native forests and Greater Gliders.
I respectfully disagree. Mr Daines gave unchallenged evidence that the appellant currently has six members and approximately 1600 followers on Facebook. He described the composition of the committee as comprising himself as President and Treasurer, Mr Scott Mackenzie as Vice President and Ms Lisa Stone as Secretary. He said that the committee and members meet several times a year and that the committee members are otherwise in "constant contact with one another". He said that he and Ms Stone run the appellant's "day-to-day operations".
Other evidence which describes the knowledge and experience of the committee and members, without being exhaustive, includes the following:
1. Mr Daines is identified as the representative of the appellant in its co-authorship of the report dated 10 November 2023 regarding logging breaches concerning den trees in Tallaganda State Forest.
2. Mr Daines and Ms Stone are the signatories of numerous correspondence written on the appellant's letterhead to various Ministers and other authorities over many years. One or other of them also signed numerous breach reports to the EPA written on the appellant's letterhead. Mr Mackenzie, the appellant's Vice President, is the signatory of other breach reports written on the appellant's letterhead, including the breach report dated 5 December 2023 regarding Styx River.
3. Ms Stone's work in protecting the environment, including as a representative of the appellant, was expressly acknowledged in a report dated 2011 by the Nature Conservation Council of NSW (NCC) (see at [172] below).
4. Both Mr Daines and Mr Mackenzie were co-recipients of the Bob Brown Environmentalist of the Year Award in 2019, which recognised their work on behalf of SEFR and the appellant for the protection of forest and action on climate change over the previous 20 years.
The fourth matter which concerned the primary judge was that there was no evidence concerning the day-to-day operations of the appellant, its resources or sources of funding. As acknowledged by Mr Korman of counsel (who appeared for the appellant together with Mr Farrell), the evidence did not include any information as to the appellant's funding. There is much to be said, however, for Mr Korman's submission that "there is always more material that can be adduced" and the wealth of material that was produced demonstrated that the appellant did have a sufficient special interest in the subject matter of the proceeding.
It may reasonably be inferred from the evidence of the appellant's activities over more than a 20-year period (including the period prior to its incorporation) that it is sufficiently well resourced to be able to be involved in such active ventures as preparing and submitting detailed reports and submissions to government authorities and inquiries, as well as making multiple breach reports to bodies such as the EPA.
Given that an evaluative judgment has to be formed on the issue of standing, the fact that there may be no direct evidence on a topic such as funding is not necessarily fatal. The exercise should not involve a "tick-the-box" approach. Rather, the evidence needs to be assessed and weighed as a whole.
It may be accepted that if a body such as the appellant receives government funding that is likely to assist in establishing standing because the funding suggests that it is independently acknowledged that the body has a particular and responsible interest in a subject matter. But funding is not the only way this can be demonstrated. For example, in Animals' Angels, considerable weight was attached to correspondence from a senior Commonwealth government official which described the appellant there as "a stakeholder with a significant interest in the live export trade" (at [118]-[119]).
Comparable government recognition of the appellant is reflected in the fact that, as long ago as 2003 (i.e., two years after it was established and seven years before it was incorporated), Mr Daines (who was one of the founders of the SEFR along with Mr Mackenzie and others) was invited as a representative of SEFR to sit on a committee established by the Resource and Conservation Assessment Council of the NSW Department of Premier and Cabinet to comment on proposed legislation which culminated in the National Park Estate (Reservation) Bill 2005 (NSW).
It may also be noted that, post its incorporation in September 2010, the appellant was described as "a well known environmental organisation" in Craig J's reasons for judgment in Friends of Malua Bay Inc v Perkins [2014] NSWLEC 95 at [19].
Finally, in a 2011 report styled "If a tree falls: Compliance failures in the public forests of New South Wales" which was prepared by the Environmental Defender's Office (NSW) on behalf of the NCC (2011 NCC report), the appellant's work in lodging multiple environmental breach reports is acknowledged several times. There is a detailed appendix totalling eight and a half pages which identifies the numerous reports by the appellant of breaches of forestry regulations. (The NCC was founded in 1955 and is described in the 2011 NCC Report as "the peak environment organisation for NSW representing more than a hundred community environment groups across the state").
In the foreword to the 2011 NCC report, there is an acknowledgment of "the tireless efforts of community members who have spent hundreds of hours in public forests, identifying and documenting breaches of forestry and environmental regulations". The authors of the report specifically recognised the work of Ms Stone, who is described as having "played a vital role in documenting the impacts of unlawful logging practices in our public forests". Ms Stone joined SEFR in 2006 and is presently the appellant's Secretary. It is reasonable to infer that Ms Stone's involvement in the preparation of the 2011 report was carried out, at least to some extent, in her capacity as a representative of either SEFR or the appellant.
The final matter which concerned the primary judge was that the evidence indicated that the appellant's activities aimed at protecting Greater Gliders and their habitats commenced only around 23 September 2023.
It is true that around that time the appellant became more actively involved in conducting nighttime surveys of glider den trees in some of the compartments the subject of its amended notice of motion and second notice of motion and in lodging breach reports in respect of some of those compartments. But its concern to protect glider habitat well precedes those particular activities. The appellant lodged multiple breach reports dating back to 2011 regarding contraventions by loggers in parts of the Southern and Eden subregions. It complained about the logging of hollow-bearing trees, the failure to mark Yellow-bellied Glider habitat, and the failure to identify species, including Yellow-bellied Gliders and Squirrel Gliders. Some of those reports dated around 2011 are identified in appendix 1 to the 2011 NCC report, but other breach reports by the appellant extend well beyond that date.
The appellant's concern to highlight the inter-relationship between logging of hollow-bearing trees and preservation of glider habitat is a subject which is repeatedly referred to by it in its publications, submissions and representations referred to above. Those references go as far back as 2011, when the appellant made a submission to the House of Representatives' Standing Committee on Climate Change and highlighted the threat which the logging of den trees posed to Greater Gliders. Similar matters were raised by the appellant in many subsequent submissions and representations to federal and state entities, as outlined above.
(2014) 254 CLR 51; [2014] HCA 46 at [5].
Kuczborski at [185] (Crennan, Kiefel, Gageler, Keane JJ) referring inter alia to Bateman's Bay at [37].
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Decision last updated: 16 May 2024