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Federal Court judgments

Federal Court judgments

By Dan Star QC

Courts Judgment Practice & Procedure 

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Administrative law 

Judicial review of decision granting exemption from prohibition of live animal export – procedural fairness – legal unreasonableness

In Animals Australia Federation v Secretary, Department of Agriculture, Water and the Environment [2020] FCA 905 (26 June 2020) the Court determined an application for judicial review of the decision to grant an exemption under s12(1) of the Australian Meat and Live-Stock Industry (Prohibition of Export of Sheep by Sea to Middle East – Northern Summer) Order 2020 (Cth) (Northern Summer Order) to permit the export of sheep in the northern hemisphere summer. 

For animal welfare reasons, s8 of the Northern Summer Order prohibits the export of live sheep from Australia by a seagoing vessel to certain parts of the Middle East between 1 June and 14 September. Section 12 of the Northern Summer Order provides the Secretary with a discretion to grant an exemption from the prohibition. 

On or about 2 June 2020, a delegate of the Secretary decided not to grant the second respondent (the exporter) an exemption under s12(1) of the Northern Summer Order (the first decision). The Department of Agriculture, Water and the Environment (the Department) did not provide a copy of the exporter’s exemption application to Animals Australia or formally invite it to make submissions concerning the first decision. However, Animals Australia provided submissions against the granting of the exemption. The reasons for the first decision acknowledged that the decision-maker considered submissions received from (inter alia) Animals Australia.

The first decision was effectively reversed a little more than ten days later when another delegate of the Secretary decided to grant an exemption to the exporter (the second decision). Animals Australia was not aware of the Secretary’s consideration of a second application for exemption made by the exporter until after the second decision had been made. The reasons for the second decision noted that the decision-maker gave some weight to the submissions from Animals Australia in relation to the first decision.

The applicant challenged the second decision in urgent circumstances on the grounds of a denial of procedural fairness and legal unreasonableness (at [40]).

Animals Australia was not given an opportunity to provide information or submissions regarding the making of the second decision to the decision-maker. The critical question was whether the Secretary was required to afford it any such opportunity. 

No party challenged the standing of Animals Australia to challenge the second decision (at [41]). The Court considered the relationship between standing and the entitlement to procedural fairness (at [67]-[69]). The Court also considered how the concept of legitimate expectation does not engage the principles of procedural fairness (at [70]-[71]).

Justice Kenny held that Animals Australia did not have a sufficient interest to be entitled to procedural fairness (at [73] and [76]). Further, the course of dealings between Animals Australia and the Department could not of itself give rise to an interest sufficient to attract an obligation to afford Animals Australia a right to be heard in connection with the making of the second decision (at [81]).

Finally, the ground of legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 was not made out (at [87]-[93]). 

Environmental law

EPBC Act – forestry operations – whether exemption in s38 lost – if exemption lost, whether action is likely to have a significant impact on listed threatened species

Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 (27 May 2020) is the Court’s final judgment in a proceeding brought by an environment group (the applicant) seeking relief against VicForests, a Victorian statutory agency responsible for the management and sale of timber resources in Victorian state forests. The proceeding concerned forestry operations in 66 native forest coupes in the central highlands region of Victoria and the effect of those forestry operations on two native fauna species, the Greater Glider and the Leadbeater’s Possum. Both are listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Greater Glider is listed as “vulnerable” and the Leadbeater’s Possum is listed as “critically endangered”. 

Under s38 of the EPBC Act, forestry operations that are conducted “in accordance with” a Regional Forestry Agreement (RFA) are exempt from provisions in the EPBC Act that otherwise control actions that have, or are likely to have, a significant impact on matters of national environmental significance (including listed threatened species). One such provision is s18 of the EPBC Act, which provides that a person must not take an action that has, will have or is likely to have a significant impact on a listed threatened species.

In summary, there were two key issues in the case. The first main issue was whether the exemption in s38(1) of the EPBC Act was lost for certain of VicForest’s forestry operation. The second key issue was, if the s38 exemption was lost, whether the forestry operations were an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum (or both) under s18 of the EPBC Act.

Following a contested trial, Mortimer J upheld the applicant’s key claims. On the first key issue, the Court held that VicForests lost the exemption in s38(1) of the EPBC Act because its forestry operations were not or are not likely to be undertaken in compliance with the central highlands RFA. This issue was determined in relation to certain coupes that were scheduled to be logged (the Scheduled Coupes) and also other coupes that already had been logged (the Logged Coupes). As to how the exemption conferred by s38 of the EPBC Act is lost, Mortimer J expressly adopted and applied her reasoning from her earlier judgment determining a separate question in the proceeding (see (2018) 260 FCR 1).

In relation to future forestry operations, the Court held that VicForests is not likely to comply with cl 2.2.2.2 of the Code of Practice for Timber Production 2014 (Vic) (the Code) in the Scheduled Coupes. Accordingly, for any forestry operations proposed to be undertaken by VicForests in the Scheduled Coupes, its conduct will not be covered by the s38(1) exemption (at [6(d)] and [1178]). In relation to past forestry operations, the Court held there were a range of miscellaneous breaches of the Code by VicForests in its forestry operations in the Logged Coupes. This included breaches of cl 2.2.2.2 and other clauses of the Code, sometimes in conjunction with parts of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests. In relation to those forestry operations, VicForests’ conduct was not covered by the s38(1) exemption in the coupes in which the breaches occurred (at [6(b)-(c)] and [1287]-[1290]). 

Non-compliance with cl 2.2.2.2 of the Code was central to the Court’s findings. Clause 2.2.2.2 of the Code required VicForests, in planning and conducting its forestry operations, to apply the precautionary principle to the conservation of biodiversity values. Accordingly the Court’s judgment contains consideration of the precautionary principle (at [800]-[859]).

Turning to the second key issue, the Court held that VicForests’ conduct of forestry operations is likely to have had, or is likely to have, a significant impact on the Greater Glider as a species and/or the Leadbeater’s Possum as a species. Therefore, s18 of the EPBC Act was contravened and/or is engaged, depending on whether the action has been undertaken, or is proposed to be undertaken [at [6(h)] and [1455]). For the purposes of s18 of the EPBC Act, the Court held that each forestry operation in each of the 66 impugned coupes is an action; each series of forestry operations in each coupe group is an action; the forestry operations undertaken in the Logged Coupes are, collectively, an action; the forestry operations proposed to be undertaken in the Scheduled Coupes are, collectively, an action; and the forestry operations in all of the 66 coupes are, collectively, an action (at [6(g)] and [1339]).

The Court gave the parties an opportunity to make submissions on declaratory and injunctive relief. ■


Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au
The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to paragraph numbers in the judgment.

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