High Court of Australia|1998-04-02|Before: Callinan JJ

These proceedings therefore represent a suitable vehicle for allowing an exploration of the approach which should be taken in such cases. Unless corrected, if it be wrong, the holding and approach of the Supreme Court of Western Australia will stand as a serious obstacle to the enforcement of such management plans in that State, and possibly in other parts of Australia as well. It will encourage the notion that such management plans in environmental matters are mere exhortations and either not justiciable, or ultimately unenforceable rules made under the authority of the Parliament concerned and, thus, not necessarily to be obeyed by the Executive Government and its agencies as Parliament apparently requires. If that is the law it is important that Parliaments throughout this country, those concerned with the environment and indeed everyone else should know what an empty gesture is thereby established. If it is not the law, the Executive Government and its agencies should be held to the obligations ostensibly demanded by Parliament to protect the environment.

Thirdly, the respondents came to argue an issue of standing of the applicants[9]. Their counter challenge was raised by way of an application for special leave to cross appeal. That question too, is an important one: whether organisations, such as the applicants, have the standing on behalf of concerned citizens, many but not all living in the vicinity of the areas affected, to approach the courts for orders requiring enforcement of public environmental law. This is a developing area of the law. These applications afford a suitable vehicle for considering that question. The question is one important to courts throughout this country. If the applicants do not have standing, as the respondent claims, that is also a matter which should be made clear by this Court so that, if desired, reformatory legislation can be considered and enacted and, if not, the respondent and those in a like position can be spared from legal process.

Fourthly, there are other important legal questions which have been argued in full by the applicants, but not yet by the respondent. In my opinion, they would alone attract a grant of special leave. These include

(a) the circumstances in which declaratory or injunctive relief should be granted to enforce environmental law where that law is supported, as here, by criminal sanctions[11]; and > > (b) the rule of construction for deriving the intention of Parliament to bind the Crown to conform with special environmental plans such as the management plan in issue in these proceedings[12].

These are important questions which warrant the time and attention of this Court. Not least do they do so, given that the time has been set aside and the attention has already been fully engaged on the question for a day and a half.

It would be tempting to reject these applications on the basis that they do not represent suitable vehicles for grants of special leave. Pleading questions, as I have said, are often tedious and usually unpleasant. The questions formulated in this case were very numerous and detailed. The issues, and many of the facts and statutory provisions, were elaborate and sometimes obscure. Yet behind the applicants are a number of important questions of environmental law, practice and approach. There are also a number of forests which, if the applications are refused, may stand at risk of conduct which the applicants say, with arguable justification, does not comply with the law of Western Australia. The applicants' cases will not then be heard on their merits in these proceedings. They are closed off in these proceedings from a hearing. The practicalities, not least those of costs, make it tolerably clear that another proceeding, starting from the beginning, would not be likely.

This is a result with which, most respectfully, I do not agree. I would favour continuing with the hearing. At the point at which the argument was stopped, I was in favour of grants of special leave to appeal. Indeed, at that stage, I was distinctly in favour of answering several questions in a way favourably to the applicants, allowing the appeals and permitting the applicants to replead freed from the unacceptable limitation which the Full Court imposed, in my view incorrectly, on that facility.

[3] Tampion v Anderson [1973] VicRp 82; (1973) 48 ALJR 11; 3 ALR 414.

[4] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; cf Rajski v Powell (1987) 11 NSWLR 522 at 524, 538.

[5] Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 92.

[6] See Native Vegetation Conservation Act (NSW), ss 18-19, 24-36; Water Resources Act 1997 (SA), ss 9(3)(e), 9(4), 90-115; Water Act 1989 (Vic), ss 30, 64A; Catchment and Land Protection Act 1994 (Vic), ss 23-36.

[7] Robinson, "International Trends in Environmental Impact Assessment" (1992) 19 Boston College Environmental Affairs Law Review 591 at 597-602; Raff, "Ten Principles of Quality in Environmental Impact Assessment" (1997) 14 Environmental and Planning Law Journal 207.

[9] See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 526-530; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 35-36, 41-42, 44, 57, 62, 72; Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 680; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 514; [1994] FCA 1556; 127 ALR 617 at 638-639; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516 at 553; [1995] FCA 1035; 127 ALR 580 at 614-615; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436 at 445-446.

[10] Brennan, "The Purpose and Scope of Judicial Review" (1986) 2 Australian Bar Review 93 at 100; Australian Law Reform Commission_, Standing in Public Interest Litigation, Report No 27_ (1985); Australian Law Reform Commission, Beyond the door-keeper: Standing to sue for public remedies, Report No 78 (1996).

[11] cf John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84, 99-100; Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 at 270-271; Webster v The Bread Carters' Union of NSW (1930) 30 SR (NSW) 267 at 273-274.

[12] See District Council of Kingscote v Kangaroo Island Eco Action Inc (No 1) [1996] SASC 5819; (1996) 67 SASR 410 at 419-420; cf Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 256; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 28; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 at 163; West Australian Field and Game Association v Pearce (1992) 8 WAR 64 at 71-78.

Land Management Act 1984

Conservation Act 1950

Conservation Act 1997

Land Protection Act 1994

Land Management Act 1984

Conservation Act 1950

Conservation Act 1997

Land Protection Act 1994

South-West Forest Defence Foundation v Department of Conservation and Land Management (No 1) [1998] HCA 34; (1998) 154 ALR 405; (1998) 72 ALJR 837 (2 April 1998)

South-West Forest Defence Foundation v Department of Conservation and Land Management

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (12)

Cases Cited (20)

South-West Forest Defence Foundation v Department of Conservation and Land Management (No 1) [1998] HCA 34; (1998) 154 ALR 405; (1998) 72 ALJR 837 (2 April 1998)