Defence Coalition Against RCD INC v Minister for Primary Industries and Energy [1997] FCA 163 (12 March 1997)

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - person aggrieved - applicant seeking to review decision to declare rabbit calicivirus disease an agent organism - whether applicant has standing - whether applicant has special interest - relevance of incorporation and objects of association

Administrative Decisions (Judicial Review) Act 1977 (Cth), s3, s5

Agricultural and Veterinary Chemicals Code Act 1996

Associations Incorporation Act 1987 (WA), s27

Biological Control Act 1984 (Cth), s10, s17, s18, s21, s22, s26, s27, s28, s29, s34, s36

Biological Control Act 1986 (WA), s32

Environment Protection (Impact of Proposals) Act 1974

Rules of the Federal Court, O20 r2

Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493

Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124

Broadbridge v Stammers (1987) 76 ALR 339 at 341

Cameron v Human Rights and Equal Opportunity Commission (1993) 190 ALR 279

North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492

Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 75 NTR 1

Ogle and Anor v Strickland and Ors (1987) 71 ALR 41

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1982) 149 CLR 27

R v Inland Revenue Commissioner; ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Rice Growers Co-operative Mills Ltd v Bannerman and Anor (1981) ATPR 40-262

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580

Tooheys Ltd v The Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64

DEFENCE COALITION AGAINST RCD INC v MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

NO WG 154 OF 1996

R D NICHOLSON J

PERTH

12 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 154 OF 1996

B E T W E E N: DEFENCE COALITION AGAINST RCD INC

Applicant

and

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 12 MARCH 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The respondent's motion for dismissal be granted.

2. The application be dismissed.

3. The applicant pay the respondent's costs of the application to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WG 154 OF 1996

B E T W E E N DEFENCE COALITION AGAINST RCD INC

Applicant

and

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

Respondent

CORAM: R D NICHOLSON J

DATE: 12 MARCH 1997

PLACE: PERTH

REASONS FOR JUDGMENT

This is a motion brought pursuant to the Rules of the Federal Court, O20 r2, seeking the dismissal of the application. The motion relies on two grounds. The first is no reasonable basis is disclosed for the application. The second is the applicant is not a person whose interests are adversely affected by the decision of the respondent sought to be reviewed in the application and so is not a person aggrieved by the decision within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On the hearing of the motion the second ground was argued as the primary ground for the respondent. It was agreed between the parties the Court should give judgment in respect of the second ground leaving the first ground to be dealt with as appropriate in the light of the judgment reached.

The application seeks to have reviewed the decision ("the decision") by the Biological Control Authority under the Biological Control Act 1984 (Cth) ("the BC Act") to declare rabbit calicivirus disease ("RCD") organisms to be "agent organisms" for the purposes of that Act. The declaration as it appears in the Commonwealth Gazette of 18 September 1996 is in the following terms:

"Take in 'A' - photocopy of declaration"

The application seeks to set aside this declaration ("the Agent Organism Declaration") and to restrain the respondent from declaring RCD to be an agent organism under the BC Act unless and until he conducts "a full and proper commission of inquiry pursuant to s28 and PtVII of the [BC Act] and has considered the report made as a result of that inquiry pursuant to s28(3)" of the BC Act.

Statutory scheme

The BC Act commenced on 22 November 1984 and applies to the Australian Capital Territory. It is part of a cooperative scheme of legislation for the biological control of pests. In Western Australia, where the applicant is registered, the Biological Control Act 1986 (WA) ("the BC Act - WA") makes similar provision: see s32.

Section 8 of the BC Act establishes a Commonwealth Biological Control Authority ("the Authority") and provides the Authority shall be the Minister who is for the time being a member of the Council. The Council is defined as the Agriculture and Resource Management Council of Australia and New Zealand unless otherwise prescribed.

Part II of the Act provides for the making of declarations of "target organisms". On 13 September 1996 the Authority declared organisms of the species Oryctolagus Cuniculus (commonly known as European Rabbits) to be target organisms for the purposes of the BC Act. No challenge is brought by the applicant to that declaration.

Part III of the BC Act relates to "agent organisms". Section 21(1) provides that subject to and in accordance with the Part, prescribe live organisms of a particular kind may be declared to be agent organisms for the purposes of the Act. Section 21(2) provides that action for such a declaration may be commenced either by a unanimous recommendation made to the Authority by the Council or an application under s22.

In s26 it is further provided that where the Council has unanimously recommended to the Authority that prescribed live organisms of a particular kind should be agent organisms, the Authority shall publish in the Gazette and may publish in newspapers a notice that it is contemplating such a declaration. By s26(2)(f) it is required that such notice "invite any persons who object to, or support, the relevant organisms being declared to be agent organisms to submit written particulars of the grounds for that objection or support, as the case the may be, to the Authority within the period of six weeks after the date of the publication of the notice in the Gazette or within such further period as the Authority (either before or after the expiration of that period) allows". There is an obligation on the authority arising pursuant to s27 to consider any resultant submissions.

Section 28 then provides that, where the Authority, after carrying out certain steps, considers there is evidence a person or the environment would be adversely affected by the release of organisms of the kind to which the recommendation relates but an adequate investigation or inquiry into the effect of such release has not been held, may:

"(e) direct that an inquiry under PtVII be conducted in respect of the recommendation;

(f) arrange for the Minister who administers the Industries Assistance Commission Act 1973 to refer the recommendation to the Industries Assistance Commission for inquiry and report, or

(g) arrange for the Minister who administers the Environment Protection (Impact of Proposals) Act 1974 to direct that an inquiry be conducted under that Act in respect of the recommendations."

However, s28(1A) provides:

"(1A) Action shall not be taken under pars(1)(e), (f) or (g) in respect of an agent recommendation unless the Council, upon being consulted in accordance with par(1)(b), has unanimously recommended that the action be taken."

Section 29 provides for the making of declarations and does so in the following terms:

"29(1) Where the Authority, after:

(a) complying with the preceding provisions of this Part in relation to an agent recommendation;

(b) considering all reports and other matters relating to that recommendation that the Authority considers it appropriate to consider; and

(ba) consulting the Council regarding the appropriateness of action under this section in respect of that recommendation;

(c) that the release of organisms of the kind to which the recommendation relates (in this subsection referred to as the "relevant organisms") could result in the control of target organisms of a particular kind or kinds in the Australian Capital Territory; and

(d) that:

(i) the release of the relevant organisms would not cause and significant harm to any person or to the environment, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds; or

(ii) any harm caused to persons or to the environment by the release of the relevant organisms, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds, would be significantly less than:

(A) the harm caused, or likely to be caused, by failure to control target organisms of that kind or those kinds throughout Australia; and

(B) where target organisms of that kind or those kinds can be controlled by the release of other organisms or otherwise than by biological means - the harm (if any) caused, or likely to be caused, by controlling target organisms of that kind or those kinds throughout Australia by the release of those other organisms or by those other means; the Authority, subject to subs(1A), shall, by notice published in the Gazette, declare the relevant organisms to be agent organisms for the purposes of this Act.

(1A) The Authority shall not make a declaration under subs(1) in respect of an agent recommendation unless the Council, upon being consulted in accordance with par(1)(ba), has unanimously recommended that the declaration be made.

(2) A notice under subs(1) declaring organisms of a particular kind to be agent organisms may set out conditions under which those organisms may be released, which conditions may be or include:

(a) conditions specifying the persons who may release those organisms; or

(b) conditions specifying the circumstances in which those organisms may be released."

Part IV of the BC Act provides for the making of special declarations including declaration of organisms declared under relevant state law: see s34.

Part V of the BC Act contains provisions relating to the release of agent organisms including statutory relief from liability in respect of such relief: see s36. It is not contended the present applicant is inhibited by these provisions or the provisions of PtVI providing for relief from legal liability in respect of matters arising under a relevant state law.

Part VII of the BC Act contains provisions for inquiries providing for their appointment, remuneration, the giving of notice, procedure and other associated matters.

In PtVIII provision is made for an application to the Administrative Appeals Tribunal for review of certain decisions. In respect of action pursuant to s29 of the Act there is a right of review to that Tribunal where the decision "is inconsistent with the finding or recommendation of a Commission referred to in PtVII, the Industries Assistance Commission, or a Commission referred to in the Environment Protection (Impact of Proposals) Act 1974 ". It is not contended such right of review is applicable in the present circumstances.

Circumstances of the Agent Organisms Declaration

The Agent Organisms Declaration relating to RCD came about in the following circumstances.

On 3 March 1995 the Council recommended unanimously to the respondent that rabbits should be target organisms and RCD should be agent organisms.

On 24 July 1995 the predecessor to the present respondent declared under s10 of the BC Act the Authority's powers under ss17 and 26 to publish in the Gazette and selected newspapers a notice that the Authority was contemplating declaring the European Rabbit as target organisms and RCD as agent organisms respectively and inviting written submissions.

On 8 November 1995 Mr Donald Fuller, a non-legally qualified person who represented the applicant on the hearing of this motion and who is a member of the Committee of the applicant, was invited by the Agriculture Protection Board of Western Australia to attend a workshop on RCD as part of public consultations being held in Western Australia on the subject.

Notices were published in selected newspapers on 25 November 1995 and in the Commonwealth Gazette of 29 November 1995 and in each case were headed with the words "Call for Public Comment". The notices included the following statement:

"They are now seeking:

. public comment into the development of guidelines for preparation of an Environmental Impact Statement; and

. submissions from any persons who object to, or support, rabbits being declared a target organism and/or RCD being declared an agent organism under the Biological Control Act 1987 ."

It was stated that responses should be forwarded by 10 January 1996 to the Authority. On 24 July 1995 the predecessor to the respondent had delegated to the Bureau of Resource Sciences ("the Bureau") - an agency of the Department of Primary Industries and Energy ("the Department") - the Authority's powers under ss18 and 27 of the BC Act to consider any submissions in response to any invitations for written submissions. All submissions were considered either by the Executive Director of the Bureau or by officers reporting to him who summarised submissions for his direct consideration.

Four hundred and seventy two written submissions were received. Of these nineteen had their origin in the Australian Capital Territory and forty three in Western Australia. 27 per cent of the submissions supported immediate release of RCD; 51 per cent supported release at the most effective time; 3 per cent supported conditional release; 10 per cent were uncommitted and 9 per cent opposed release. The result was the majority of submissions (78 per cent) supported release of RCD. Concerns were raised by some submissions about possible adverse effects on humans, on the environment and otherwise.

The applicant was not among the groups and individuals who made submissions. However, individuals who made submissions included Mr Fuller. Also among the individuals making submissions were Professor A W Smith of Oregon, United States of America and Dr D O Matson of Virginia, United States of America. These are persons whose views Mr Fuller considers should be preferred over those of other scientists.

In his submission to the Authority Mr Fuller described himself as a licensed commercial rabbit farmer in Western Australia trading as Lapin Farms (Aust) who had obtained approval from the Agricultural Protection Board of Western Australia for an open-pen system of rabbit farming. He asserted in his application he had spent three years trialing the system and developing further joint venture plans for a large operation requiring funding in the range of $20M, part of which would be for prime lamb lot feeding in conjunction with the rabbits. No evidence was brought to the Court to support these assertions made by the applicant in his submission nor was any direct challenge mounted to them on behalf of the respondent.

On 8 March 1996 a legal firm, acting on instruction "from a group of concerned individuals who are in the process of incorporating under the name of" the applicant, wrote to the respondent stating concerns in relation to reports that RCD may be released without the institution of a public inquiry pursuant to the BC Act. The letter stated the clients reserved the right to make an application to the Administrative Appeals Tribunal if no decision was made to hold a public inquiry by 12 March 1996.

On 14 March 1996 the Executive Director of the Bureau advised the respondent in a minute of the concerns raised by the public submissions and advised that the analysis of the submissions received and other reports was currently insufficient to satisfy the requirements for the declaration of RCD as agent organisms. The Authority also requested more details.

On the same date an acting First Assistant Secretary of the Livestock and Pastoral Division of the Department briefed the Authority on progress with assessment of RCD. In par33 the Secretary stated the science on RCD was being contested publicly, in particular, by Dr Smith who wrote and broadcast on the concern that RCD may infect species other than rabbits. He stated that Professor Smith and Dr Matson had made a submission to the Authority and their scientific arguments would be considered in the Bureau's report. The Secretary and others further briefed the Authority on 28 March 1996.

On 1 April 1996 the Executive Director of the Bureau provided to the respondent his interim report on the assessment of public submissions under the BC Act. The interim report dealt with the issues raised by Professor Smith, Dr Matson and Mr Fuller.

The Authority accepted the recommendation of the report that the requirements for the declaration of rabbits as target organisms had been met and the currently available information was such that the requirements for the declaration of RCD as agent organisms had not been met. He further agreed to a study to confirm the absence of an effect on humans and testing of selective native species and stated a final report under the BC Act would be provided when that information was available.

On 2 April 1996 the applicant was incorporated under the Associations Incorporation Act (WA). The objects of the Association as stated in its rules are:

"3.(1) The objects of the Association are -

1. Campaigning against the official use of rabbit calicivirus as a biological control agent without first properly consulting the Australian people.

2. Exposing material breaches of the Biological Control Act 1984 . The Agriculture and Veterinary Chemical Code Act 1996 and the Environmental Protection (Impact of Proposals) Act and related matters including unauthorized spreading of disease with the intent of public (government) prosecution.

3. Campaigning to bring about improvement in public accountability for Biological Research programs in Australia."

The rules further provided that the qualifications for membership were that any interested person or organisation was open to become a member. The rules further provided for the keeping and maintenance of a register of members in accordance with s27 of the Associations Incorporation Act but no evidence was brought to the Court that such register had been maintained or of the names of persons said to be members.

Provision was also made in the rules for the affairs of the Association to be managed exclusively by a Committee of Management. There was evidence that in addition to Mr Fuller five other persons were members of the Management Committee as at 15 January 1997.

On 15 April 1996 the applicant wrote to the First Assistant Secretary of the Department stating the applicant had not been constituted until after the closing time for submissions and "if for this or any other reason the [applicant] has no standing" would you kindly treat this as a personal submission from Mr Fuller. The enclosed submission was dated 10 April 1996.

On 6 May 1996 an officer of the Department responded to the applicant stating that although its facsimile of 15 April 1996 was too late for inclusion in consideration of submission by the Bureau, the issues which it raised were included in earlier submissions by Mr Fuller and others to the Authority and had been carefully considered by the Bureau before reporting to the Minister.

Also on 6 May 1996 the respondent wrote to Professor Smith in response to a facsimile from him of 15 March 1996 advising of the decision to require further tests and that no decision on the deliberate release of RCD would be taken until the results of the testing had been considered. He anticipated the tests would be completed within four months.

On 26 August 1996 the Executive Director of the Bureau signed a memorandum to the respondent forwarding the final report on RCD under the BC Act. This was received by the respondent on 4 September 1996. It was then recommended to the respondent that if he agreed with the recommendation of the report that the requirements for declaration of rabbits as target organisms and RCD as agent organisms had been met, he should consult with the Council seeking unanimous agreement to the declarations. The respondent agreed to this recommendation on 2 September 1996.

The report expressly refers to the views of Professor Smith, Dr Matson and Mr Fuller. Their views were taken into account in the report and in the making of the recommendations to the respondent.

On 4 September 1996 the respondent wrote to Dr Matson stating that particular concerns which he had expressed had been passed onto appropriate technical experts and had been taken into account in the evaluation of RCD as a potential biological control agent. This was in response to a letter from Professor Matson dated 18 July 1996.

On 23 September 1996 the respondent wrote to Professor Smith in response to a fax of 29 August 1996 quoting the conclusion in the Bureau's Report.

On 27 August 1996 the Secretary also recommended to the respondent that he consult with the Council. On 12 September 1996 the Secretary was advised on behalf of the Council that all Ministers had unanimously recommended the proposed declarations be made under subs20(1) and 29(1) of the BC Act.

On 30 September 1996 a product valuator in the Veterinary Registrations Section of the National Registration Authority for agricultural and veterinary chemicals advised Mr Fuller as a director of the applicant that registration of the RCD injection had been granted under the provisions of the Agricultural and Veterinary Chemicals Code Act.

Requirements of ADJR Act as to standing

Section 5(1) of the ADJR Act provides for a person "who is aggrieved by a decision to which this Act applies" to have a right to apply to the Court for an order of review. It is accepted on behalf of respondent that the decision is one to which the ADJR Act applies.

Section 3(4) of the ADJR Act provides that a reference to "a person aggrieved by a decision" includes (inter alia) a reference to "a person whose interests are adversely affected by the decision".

The manner in which these provisions should be applied is not in dispute as their meaning has been explained in a number of decisions. It is clear a person will be aggrieved if that person can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public: Rice Growers Co-operative Mills Ltd v Bannerman and Anor (1981) ATPR 40-262 at 43,335 per Bowen CJ and Franki J; cf Tooheys Ltd v The Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at 79 per Ellicott J. Direct professional and vocational interest may establish a grievance: Ogle and Anor v Strickland and Ors (1987) 71 ALR 41. The critical question is the extent to which the interest of the applicant rises above that of an ordinary member of the public: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 132 per Gummow J. That interest may be established where "... there flows from the decision... a danger and peril to the interests of the [applicant] that is clear and imminent rather than remote, indirect or fanciful, and the [applicant] has an interest in the matter of an intensity and degree well above that of an ordinary member of the public": Broadbridge v Stammers (1987) 76 ALR 339 at 341 adopting the language of Gummow J in Australian Institute at 82.

The approach to the interpretation of the statutory provisions is to be considered in the context of the decisions of the High Court in relation to the question of standing generally. From the reasons of the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, particularly at 530-1, 539 and 547 it appears that an interest does not mean a mere intellectual or emotional concern so that the person seeking to establish standing voices a particular concern and regards the actions of another as injurious to the object of that concern. Incorporation of a body with particular objects will not strengthen its claim to standing. Nor does a corporation acquire standing because some of its members possess it. The making of written comments to an inquiry will not create standing where it does not otherwise exist. Standing to bring an action to prevent the violation of a public right will not exist if the plaintiff has no interest in the subject matter beyond that of any other member of the public - he or she must have a special interest in the subject matter of the action: Onus v Alcoa of Australia Ltd [1981] HCA 50; (1982) 149 CLR 27 at 35-6 citing Australian Conservation Foundation v The Commonwealth. In Onus at 75 Brennan J said:

"At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community."

The question whether an applicant has shown a sufficient interest in a particular case is a question of degree and not of discretion: Onus at 75 per Brennan J adopting R v Inland Revenue Commissioner; ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 631 per Lord Wilberforce. The result is that "there is a point, which must be fixed as a matter of judgment in each case, beyond which the Court must hold that the interests of those affected are too indirectly affected to be recognised": Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377 at 382 per Pincus J. There is therefore the necessity for "a curial assessment" of the sufficiency of the interest: Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 75 NTR 1 at 4 per Angel J.

In assessing the sufficiency of that interest the Court must identify the enactment under which the decision was made and consider standing in the context of the enactment: Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 84-85 per Gummow J.

In the context in which the applicant seeks to establish his standing it is relevant to note decisions in which environmental bodies have sought to establish standing before the Court. In North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 512, Sackville J, after reviewing relevant authorities said it was necessary for North Coast to demonstrate a "special interest" in the subject matter of the action being more than a mere intellectual or emotional concern; a person may be able to demonstrate a special interest in the preservation of a particular environment and an intellectual or emotional concern was no disqualification from that standing; the making of comments on an environmental impact statement did not of itself confer standing; and an organisation does not demonstrate a special interest in the environment sufficient to establish standing simply by formulating objects that demonstrate an interest in a commitment to the preservation of the physical environment. In Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580 he found that the Trust was a person aggrieved for the purpose of challenging the Minister's decisions to grant an export licence in relation to woodchips because it was the peak environmental organisation for Tasmania, recognised as such by the State and Territory Governments and including in its activities research, advice, lobbying and consultations. It has been recognised by the Commonwealth as a significant and responsible environmental organisation. It was recognised by the Tasmanian Government as a body that should represent environmental interests on advisory or consultative bodies. The research and advisory activities of the Trust, although extensive, had involved detailed considerations of wood-chipping and the preservation of Tasmanian forests, the very subject matter of the litigation. The Trust had made submissions and engaged in other activities demonstrating its commitment to conservation values. The Trust was a substantial body in terms of membership, income and range of activities although size of the organisation or its resources was not a critical factor: see at 613-4.

The applicant's grievance

In its application the applicant relies for a statement of its grievance on various affidavit material filed in support of the application. The range of these concerns are set out in a document described as the Winter 1996 Report. Essentially they relate to the applicant's concern that the release of RCD will be harmful to humans and to other animals and to the environment generally. These concerns are supported by reference to the views of Professor Smith and Dr Matson.

In his oral submission Mr Fuller for the applicant said there was a power and simplicity in the writings of those American scientists which showed how much had not previously been understood in relation to RCD. He stated that assertions that there would be no risk to children in the handling of pet rabbits were demonstrably false.

Expressing this submission another way, he relied on the proposition "we are all connected by the air we breath". By this I understood him to submit that the RCD virus was capable of affecting the life of all humans and hence the interest of the applicant rose above the mere emotional and intellectual.

Turning to the letter of 8 March 1996 from the applicant's solicitors to the Minister, he relied on the expression of concerns in it in the following terms:

"1. That relevant State and Commonwealth Ministers, and Government Departments have failed to consult or sufficiently consult with all relevant and industrial sections, public health groups and interested parties who will be affected by the release of the calicivirus.

The Commonwealth Biological Control Authority (the "Authority") has failed to give due consideration to the risk to:

. all relevant commercial and industrial sections;

the economy;

public health; and

the environment

3. The Authority has failed to consult or sufficiently consult with various international experts and scientific bodies.

4. The Authority has failed to give due consideration to the present methods of rabbit control.

5. The Authority has failed to conduct an enquiry into the escape of the calicivirus from Wardang Island.

6. The Authority has failed to take blockading and other quarantine measures to minimise or contain the uncontrolled spread of the calicivirus or to embark on any disease eradication campaign."

Then Mr Fuller said any comparison between the applicant and the Australian Conservation Foundation was "a hopeless mismatch". He submitted the applicant was not a self-appointed public advocate and especially not one involving itself in matters of a general nature. Nor was it just an interfering busybody or meddler. Its founding members were a special interest group who came together expressly to meet a particular challenge. The founding members had banded together in this way to fight a common cause.

He submitted what is necessary to demonstrate a "special interest" was obvious in this case, accepting that the nature of a special interest would vary according to the nature of the subject matter the importance of the concern which an applicant has with that subject matter and the closeness of the applicant's relationship to the subject matter. Here, the special interest arose out of the challenge which had provoked the applicant to come into being, namely, the physical threat to everyone represented by RCD. That challenge was reflected in the objects of the Association.

Sufficiency of interest

In my opinion the applicant is unable to show it has a "special interest" above that of an ordinary member of the public. The basis of the applicant's concern being any alleged shared common danger which humanity faces from RCD, it is unable to show its interest in that danger rises above that of others. It is not enough the applicant regards the decision as injurious to the object of its concern: Australian Conservation Foundation v The Commonwealth (supra) at 530 and 539; Cameron v Human Rights and Equal Opportunity Commission (1993) 190 ALR 279 at 288.

Incorporation of the applicant does not assist it. The further fact the incorporated body has the objects referred to does not thereby accord the applicant a special interest: Australian Conservation Foundation v The Commonwealth at 531 and 539.

Sending written comments concerning the subject matter of the decision out of time, does not give rise to a special interest in the applicant over and above other members of the public.

An individual submission from a member of the applicant provides no support for a claim that the applicant has the necessary standing. It is not appropriate that the applicant's standing be determined by the interests of its members. Even if that were the case there is no evidence the interests of the applicant's members were other than merely holding a belief that a particular type of conduct should be prevented or a particular law observed. There was no evidence that release of RCD had such an impact on Mr Fuller in his former business of Lapin Farms that would give rise to a special interest on the part of the applicant. Further, an invitation to Mr Fuller to participate in a workshop was not an invitation to the applicant.

The present is not a case where there is any evidence of funding or other government recognition of the applicant, such as would give rise to the requisite special interest. The evidence shows only that the applicant here is an association of individuals having like views.

The true position is the decision does not effect the members of the applicant differently from ordinary members of the public except in relation to their emotional and intellectual interest in the subject matter of the decision. On the applicant's case it is not shown that success in the action would relieve it of a detriment or disadvantage to which it would otherwise have been subject to an extent greater than an ordinary member of the community.

In my opinion, the statutory context and the factual circumstances in this case do not support a conclusion that the applicant is a party having a special interest in the decision sought to be impugned over and above a member of the public. It is therefore not a party aggrieved.

Conclusion

For these reasons I consider the respondent's motion should be granted and the application should be dismissed.

I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 12 March 1997

APPEARANCES

Advocate for the Applicant: Mr D Fuller

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 20 February 1997

Date of Judgment: 12 March 1997