Forestry Corporation of New South Wales v South East Forest Rescue Incorporated INC9894030

[2025] HCATrans 8

[2025] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2024

B e t w e e n -

FORESTRY CORPORATION OF NEW SOUTH WALES

Appellant

and

SOUTH EAST FOREST RESCUE INCORPORATED INC9894030

Respondent

GAGELER CJ
EDELMAN J
STEWARD J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 2025, AT 10.05 AM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC:   If your Honours please, I appear with my learned friends MR D.P. HUME, MS J.E. TAYLOR and MR C.J. BESHARA for the appellant.  (instructed by Norton Rose Fullbright Australia)

MR J.G. KORMAN:   If your Honours please, I appear with my learned friends MR J.P. FARRELL, MR T.M. WOOD and MS L.F. SIMS for the respondent.  (instructed by Blair Arthur & Associates)

GAGELER CJ:   Thank you, Mr Korman.  Mr Hutley.

MR HUTLEY:   Your Honours, we have provided to the Court, of course, our short outline.  We have also supplied our colour‑coded aide‑mémoire which will perhaps assist your Honours or others to track through in effect the changes in positioning rather than substance of the various parts of the legislative scheme with which your Honours are concerned, and a supplementary bundle of materials this morning – or yesterday afternoon.

Your Honours appreciate what the appeal concerns.  There are questions and we have chosen to refer to the issue of “standing”, being standing which derives ultimately from the Boyce Case as “ACF standing” to emphasise what could be seen as the Australian departure which took place in ACF.  We use that merely as a shortcut, instead of using “special interest standing” all the time, which has its own particular problems – we use it in that generalised sense without intending to constrain it.  That is the way I intend to refer to it.

The appeal involves questions as to whether such ACF standing subsists in relation to the respondent’s claim.  In the case, the facts are set out shortly in the written submissions – I do not need to go to it – and the character at a general level of such standing, whether it is, in effect, a matter of construction – arises as a matter of construction, whether it be a provision conferring jurisdiction, the scheme which creates the duty or, alternatively, finds its existence in some common law principle are issues in this appeal.

We propose to start by taking your Honours in a little detail through the scheme, but can I make clear our overall position at the outset.  Firstly, we submit that ACF standing is not a freestanding common law principle, but is something which subsists in particular circumstances by reason of a statutory regime.  Secondly, in the alternative, we say that if ACF standing is a freestanding common law principle, it is a conclusion which is reached through the application of reasoning resting in equitable principle which its history informs, which is undertaken once one has first analysed a scheme of legislation and formed an evaluative conclusion that it does not supply what might be described as a considered and adequate mechanism for enforcing the relevant statutory duty.

At that point, such a conclusion is arrived at by reference to equitable principles – equity might intervene to recognise ACF standing to ensure that a relevant duty is adequately enforced.  ACF standing on that analysis is not freestanding in universal principle but is instead something which may or may not exist when a particular scheme has been analysed.

Further, and thirdly, in the alternative, if ACF standing is some freestanding universal right, privilege or power, it is not a fundamental right or a fundamental right warranting the highest level of protection in accordance with the principle of legality.  It is a power of relative recent origin, not an end in itself, and can be departed to because of its very nature by degrees which would inform the response of the Court as to whether there has been a sufficient expression of a contrary intention in the legislative scheme.

GAGELER CJ:   Mr Hutley, I might be seeing this case a little too simplistically.  That is a preference to the question to ask you.

MR HUTLEY:   I did not think it was calling for my response.

GAGELER CJ:   I start with the jurisdiction of the Land and Environment Court that has been invoked in this case.  Am I right in understanding that that is section 20(1)(b) read with subsection (2)?

MR HUTLEY:   Yes, your Honour.

GAGELER CJ:   So, the content of that jurisdiction has to be understood by reference to the Supreme Court Act.

MR HUTLEY:   Yes, your Honour.

GAGELER CJ:   Relevantly, we go to section 69, and whether you treat it as a matter of statutory interpretation or common law, is standing not a dimension of the jurisdiction that is conferred?

MR HUTLEY:   Your Honour, that was the view expressed by your Honour and Justice Gleeson in the Hobart Case.  We are content to proceed upon that basis.

GAGELER CJ:   All right.

MR HUTLEY:   It might be that that does not necessarily reflect the view of a majority of the Court, having regard to the position taken by the plurality, where the view was taken that standing may not be tied up with jurisdiction, but we say it is not necessary to answer that question, and we are perfectly prepared to debate the question on that basis.

GAGELER CJ:   I took that from your written submissions.  Then, leaving any other presumption aside, there is a presumption that the jurisdiction of a court is not to be withdrawn or diminished in the absence of clear language or an unmistakable legislative intention – Shergold v Tanner is authority for that proposition, for example.  Now, do we need to go beyond that framework of analysis?

MR HUTLEY:   We are content with that analysis.  Then, in effect, one has to investigate what the nature of this standing is.  We say it is not a right which exists independent – or an aspect of jurisdiction which exists independent of a conclusion to the adequacy of the scheme surrounding the public duty with which one is concerned.  That was its basis, as is made clear in a number of cases in this Court, particularly in Bateman’s Bay, that the jurisdiction or the – the extending of the power to give the remedy was a result of a finding of inadequacy of the particular scheme.  We accept that.

Those principles, we say, still inform and lie at the basis of the determination of whether, in a particular case, with respect to a particular duty, there is standing.  So, in effect, accepting all that your Honour says – and we are prepared to proceed – that is the beginning of the inquiry, as Bateman’s Bay made clear, because even a person who might be described as having sufficient interest, as the plurality in that case made clear, that is not the end of the inquiry.  You have to go further and be satisfied that as a result of the legislative scheme that has been put in place, there is an inadequacy or, alternatively, if there is an inadequacy, whether Parliament has expressed an intention that despite that inadequacy there will not be standing.

EDELMAN J:   I wonder whether your submissions on this point really are that different from the respondent’s, in that whether you call it a freestanding common law principle of enforcement or not, it is a principle that can only arise through the statute.  So, to the extent that you might call it a freestanding common law principle, it has to be something that informs the content of the statute.  It might be a presupposition of the statute because they are questions of enforceability of statutory jural relations.

MR HUTLEY:   Quite.  But when one uses the word “statute”, one can see that in the statute giving jurisdiction, but it is that statute interrelationship with the statute creating the right, and the adequacy of the statute creating the enforcement provisions informs whether there will be, in relation to a given statutory norm, what I call ACF standing.

BEECH-JONES J:   Mr Hutley, you do not say the nature of the statutory scheme in the Forestry Act – which we will come to – is such that no one, in truth, has a special interest other than the three nominated categories of persons.  That does not sound like the way you are putting it.

MR HUTLEY:   I would answer it this way.  Whether a person has a special interest or not is irrelevant because the statute – and by that I mean the statute in its terms and the relevant material informing its meaning – make clear that it is intended that third parties, whoever they are, whether they be people who would, but for the statute, have ACF – special standing, do not have standing.  The scheme of the Act makes that clear in a number of respects.  For example, the scheme of the Act expressly says that you have no right to challenge the scheme or any aspect of it, even if a property of right of yours or particular right is infringed.

So, in other words, the scheme specifically excludes people who have their actual rights, what might be called in the Boyce sense the first class, and we say it is beyond strange to imagine that the scheme would imagine that those people would be excluded from a power to enforce, but what you might call the most exiguous interest in the ACF‑type scheme of right would be enforced.  We say that second reading speeches, the original introduction of the IFOA, make it pellucidly clear that the intention was that third parties not become involved in this enforcement.

That, of course, was against the background – I am going ahead, your Honour, since the question has been raised, and then I am going to take your Honours through the detail.  This all took place, which started from the background of general standing under the Land and Environment Court, with respect to, in effect, rights and interests in logging in the timber industry, which existed in the Land and Environment Court to that moment.  So, in other words, when the legislature excluded all other statutory rights, it was against a background where, we say, as a matter of power, there was no ACF standing to anyone.  So, in effect ‑ ‑ ‑

STEWARD J:   And you say, I take it, that this is all in aid of the primary purpose, which is certainty.

MR HUTLEY:   Quite, and made perfectly clear – and I will come to the second reading speech.  There was conceived to be, your Honour Justice Steward, a trade‑off.  There had been many statutory regimes which governed the timber industry, and it had been complex and different ministers were involved and different departments had been involved and the like.  There had been numerous amounts of litigation challenging it.  There had been approval processes involving environmental impact statements and the like.

What was determined was to bring it together under one regime.  There was to be extensive public consultation before these IFOAs were put in place.  Originally, the enforcement regimes under various statutes were excluded; general standing was excluded.  Originally, the relevant Ministers were the focus of enforcement, although the EPA was given power to enforce various aspects of it.  Then, come 2018, the legislation was, as part of a large reorganisation of legislation, focused on the EPA as being the central enforcement, and a wide what might one call smorgasbord of remedies were conferred on the EPA – much broader than injunctive power:  restorative powers, suspending of licences, and a whole range which I am going to come to – were, in effect, focused in and conferred upon the environmental planning authority.  There were also some other rights of enforcement by the Ministers and other nominated people, which your Honours will have seen.

We say the inexorable conclusion, once one goes through that, is to imagine that through all that scheme, Parliament was intending by sub silentio to allow or to contemplate that there would be a class of individuals or organisations who happen to satisfy the ACF standing requirement who could, as it were, adventitiously interrupt that scheme essentially through the Land and Environment Court through getting injunctions, just passes belief.

It is just contrary to the whole structure of what was contemplated.  That is, in essence, what we say.  Thus we say whatever principle one starts with – and one ultimately comes back, we say, to a question of construction – and accepting all the important factors of jurisdiction, which your Honour the Chief Justice has taken up, which we embrace, there is but one only sensible reason.  The potential chaos and inconsistency of injunctive proceedings by an ACF standing applicant intersecting with the EPA going through a whole different series of remedies, controls and the like just is totally contrary to what years of development of legislative regime has set in place.  That is our case at the end of day and one can put it in a whole series of alternate ways, but the conclusion is, we say, that the legislature has made it pellucidly clear.

GAGELER CJ:   So, in old‑fashioned language, it is necessary intendment.

MR HUTLEY:   Quite, your Honour.  One gets into, with respect, some observations of the plurality in Hurt about, in effect, how fundamental is the fundament right sort of in a particular – it becomes contextual, and the context becomes the whole regime and the like – as your Honours Justice Edelman and Justice Steward observed in that case, again with Justice Gleeson, I think – so, you get in that area.  All roads, we say, lead to the inevitable conclusion that it is impossible that Parliament missed this.  They did not miss it because they were dealing with a regime which up until this day had allowed anybody to sue you.  They were seeking to get every aspect of it.

But that is where we are going, your Honour.  I think I had better start the process of taking your Honours through the statutory scheme.  Your Honours are pretty familiar with it.  If I, as it were, start to bore your Honours, your Honours will not hold back and tell me I should move on.  Now, could you open the Forestry Act.  That is behind tab 4. 

GAGELER CJ:   We have pamphlet prints ‑ ‑ ‑

MR HUTLEY:   So, your Honour has them in hard copy.

GAGELER CJ:   ‑ ‑ ‑ if you are talking about the current version.

MR HUTLEY:   Yes.  Should I give your Honours the page numbers in the joint bundle?

GAGELER CJ:   No, not for the current version.  If you take us to the historical versions, yes.  We have a lot of numbers – we have too many numbers.

MR HUTLEY:   That is why we tried to give your Honours the little aide‑mémoire.

GAGELER CJ:   Yes, thank you. 

MR HUTLEY:   Those to my left gave it to me so I would not get mixed up.  I will have to give your Honours the sections now.  I was going to give you the bundles, but anyway, that is all right.  Can your Honours please go in the current print of page 12 of 92, I think it is.  I am dealing with “Part 2 Forestry Corporation” – which constitutes my client – section 5.  My client’s objectives and functions your Honours will find in section 10 and section 11 at page 15, I think, of your Honours’ print.  Your Honours will see one of the functions is 11(a).  Could your Honours then move to ‑ ‑ ‑

BEECH‑JONES J:   Is that 11(1)(a)?

MR HUTLEY: Yes, 11(1)(a). Yes, your Honour. Could your Honours then move to page 52, which is the heading to Part 5B, at the very bottom, your Honours will see. If your Honours note 69K:

This Part applies to forestry operations in State forests or other Crown‑timber lands.

Then there are certain exclusions and explanation.  If your Honours then go to 69L, it says:

The purpose of this Part is to provide a framework –

and the word “framework”, when we come to them, your Honours will see is repeated in the explanatory memorandum.  It is a word of some import.  It is, in effect, setting up a structure:

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 –

That is a defined term, your Honour.  Your Honours can see that in (2).  Could we just drop down to that for a moment.  Then there is a definition of that noun phrase and, importantly, if your Honours note (b):

ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations –

Our learned friends rely upon the notion of public participation as supporting their position.  But, of course, ACF standing does not involve public participation; it involves a limited class of participation, not the public.  But, importantly, we would stress that these principles involve accountability, and accountability comes to deal with what becomes a complex regime of enforcement which we will go through.  Now, if one then – yes.  If you could go to 69M, it says in (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.

Which everyone refers to as “IFOAs”.  Now, if your Honours note (2):

This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act –

And it says:

However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.

Now, we draw your Honours’ attention to this because there are a number of provisions in the legislation which explain why these IFOAs are enforceable.  This is one of them; there are other ones.  There is no provision which, in terms, says an IFOA is enforceable, but it is common ground that it is, and your Honours will – I will take you to a number of provisions which proceed on the assumptions that they give rise to enforceable obligations.

BEECH‑JONES J:   It is in a negative sense, like if you breach one it is a crime, or something like that.

MR HUTLEY:   Not only that, some require you to do things, and they can be the subject of civil remedies and orders to comply and orders to, in effect, remediate and the like.  They can have other consequences, which we will come to.  Section 69N, your Honours, on the next page, it can:

only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry.

And then there is a requirement of consultation with:

the Minister administering Part 7A of the Fisheries Management Act 1994.

Under subsection (3).  And then, here, 69NA brings in the public aspect, which I referred to in the integrated – the principles of ecological sustainable forest management.  It says:

Before an integrated forestry operations approval is granted, public consultation on the proposed approval is to be undertaken.

And then it sets out how it is to take place.  Consideration of submissions is required under 69NA(2)(d), and then there is an exception – which I do not need to trouble you.  Can I then just note 69P.  It says:

An integrated forestry operations approval is to describe the forestry operations covered . . . including a description –

Then (2):

approval is—

(a)to make provision for or with respect to the carrying out . . . covered by the approval –

That, in effect, is to set out the obligations and duties, et cetera.  And (b), to similar effect:

to which . . . are to be carried out, including –

various conditions which might be sourced in other legislative provisions.

STEWARD J:   Mr Hutley, can I ask you a question.  Leaving aside the enforcement of an IFOA, is the making of one something which you can get review of in NCAT or something like that?

MR HUTLEY:   I do not know if it is an NCAT review, it certainly would be subjected to review under section 69 of the Supreme Court Act if it was a departure, or whether through the Land and Environment Court or not, I have not tracked down, but I think it is common ground, it is not immune from administrative relief.

STEWARD J:   Thank you.

MR HUTLEY:   I will check the precise section if that would assist your Honour.

GAGELER CJ:   Who would have standing to seek that ‑ ‑ ‑ 

MR HUTLEY:   What?

GAGELER CJ:   Who would have standing to seek that relief?

MR HUTLEY:   Well, that would be a series of questions, your Honour, which is not before your Honour, and we do not suggest that that form of administrative relief is covered by this scheme, but – and this scheme does not address that question; that is to be found elsewhere.

Now, I have dealt with that. Your Honours, if your Honours go then to 69R, that provides for how it can be dealt with, including suspension. It will become clear that one of the remedies which can be granted at the instigation of the EPA is suspension, and that we will come to in a moment. But the Ministers are able to suspend. There is a further public consultation under 69RA with respect to amendments. Then we come down to section 69SA. It says:

A person who contravenes . . . is guilty of an offence.

And then it sets out various matters, et cetera.

BEECH‑JONES J:   Is that the prohibition that was sought to be enforced by the respondent?

MR HUTLEY:   No.

BEECH‑JONES J:   All right.

MR HUTLEY:   It is not a criminal matter, your Honour.  They are seeking, as we understand it, an injunction.

BEECH‑JONES J:   To restrain a breach of the Act, though.

MR HUTLEY:   Yes, to restrain a breach of an IFOA.

BEECH‑JONES J:   Yes.

MR HUTLEY:   And the IFOA has a provision which requires a certain process of investigation to take place before – we have set out the facts ‑ ‑ ‑

BEECH‑JONES J:   I understand the facts but what is the legislative bite that gives that condition force?

MR HUTLEY:   That is the provisions I was taking you to.  For example, 69M:

However, the carrying out . . . is subject to the terms of the approval.

And the IFOA – the terms of approval in 69P is:

to set out conditions subject to which . . . are to be carried out –

BEECH‑JONES J:   But that does not create on its face a prohibition or something that can be ‑ ‑ ‑

MR HUTLEY:   It creates a duty.  Our learned friends would have it that creates a public duty.  It may not necessarily – if there is a requirement imposed – i.e., by a condition – as we understand the argument, 69SA would make non‑compliance with the condition of criminal offence.

BEECH‑JONES J:   I understand that, and then 20(2) gives the subject – the argument is about enforcing an obligation.

MR HUTLEY:   Quite.  But you could be in force – it would not necessarily have to be a breach of criminal provision, it could be at the civil level.

BEECH‑JONES J:   I know, but in this case – that is what I am trying to get to.  I mean, I know they are not prosecuting a crime, but is that the legal obligation they say ‑ ‑ ‑

MR HUTLEY:   I am not sure whether they are saying they have to satisfy a criminal onus to do it.  Maybe I am missing the importance ‑ ‑ ‑

BEECH‑JONES J:   Onus v Alcoa was a criminal provision ‑ ‑ ‑

MR HUTLEY:   Quite.

BEECH‑JONES J:   ‑ ‑ ‑ but it was enforced civilly by a person with relief.  That is what I am trying to get to.

MR HUTLEY:   But they would put it – as I understand it, because of the requirements such as 69P(2) – the obligation subsists, and if there is a failure to comply with the obligation you can get civil enforcement – an injunction.

BEECH‑JONES J:   I see.

MR HUTLEY:   It is a civil obligation duty, and they can get enforced – I am not sure, perhaps your Honour could ask my learned friends ‑ ‑ ‑ 

BEECH‑JONES J:   I will.  I am sorry, I have taken you off your course, here.

GAGELER CJ:   Mr Hutley, can I just ask a question about the form that an IFOA takes?  Is the approval actually given to an entity or an individual – it is general approval of certain conduct, is it?

MR HUTLEY:   Your Honour, there is an IFOA in – I do not think it is actually in the book.  I can tell your Honour this.  Your Honours will notice in the scheme, there is no provision for an application for an IFOA.  There is no provision that the IFOA is granted to someone.  IFOAs are, in effect, issued.  They have various provisions.  I can tell your Honour, many of those provisions call for conduct by my client, but I do not think it is – there is no statutory provision that says that the only entity that could take the benefit of an IFOA is my client.

But it may be, depending upon the structure of the particular IFOA, my client, if benefit is to be taken of it, would have to be involved in some way, because there are obligations which fall upon my client.  Sometimes obligations and powers are expressed not by reference to my client.  So, it is an instrument which is, in effect, like a – it has some analogies to a development approval.  It creates, perhaps, rights in rem of some variety.  I do not want to draw it out; I do not think it is necessary to determine it, but it is not, certainly, granted to somebody by name.

BEECH‑JONES J:   So, it is a sort of sphere of activity you can do.  So, presumably your client would employ contractors or engage contractors.

MR HUTLEY:   But there are norms within it, and the norms – I have to tell your Honour – in many cases, refer to my client.

BEECH‑JONES J:   Of course.

MR HUTLEY:   Now, I was dealing with 69SA.  Can I now take your Honours to 69SB:

The Environment Protection Authority has the function of monitoring –

And would your Honours note “monitoring” – that is “investigating and reporting”, as your Honours will see from subsection (3):

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.

As always, there is the definite article – I am not overly pressing that – but it is there, and I will come to 69ZA and other nominated public entities have some roles, but there it is.  Then, in subsection (2), it says:

The Biodiversity Conservation Act 2016 contains provisions relating to the enforcement of this Part, and accordingly—

(a)functions under Part 6 of this Act . . . are not exercisable . . . and

(b)proceedings for an offence against this Part . . . cannot be instituted under Part 7 –

et cetera.  There is provision, under section 69SC, that:

The Corporation –

That is, my client:

is required to pay to the Environment Protection Authority such annual licence fees in relation to integrated forestry operations approvals as are determined by the Ministers granting those approvals.

Then, it says:

Any such annual licence fees are payable for the purpose of the recovery of the reasonable costs . . . in exercising its function of monitoring . . . and the function of enforcing compliance –

In other words, the scheme imposes upon my client an obligation to pay an annual fee to underwrite monitoring an enforcement role of the Environment Protection Authority.  Then subsection (3) provides – could I then turn to application of other legislation.

Section 69W – I hate the word – in effect, disapplies various parts of the EnvironmentalPlanning and Assessment Act in relation to integrated forestry operation approvals.  I will not go through the detail, but it is made clear that that piece of legislation is effectively excluded.  Section 69X deals with certain aspects of the Biodiversity Conservation Act; section 69Y, section 124 of the Local Government Act; and then 69Z speaks for itself.  Then we come to section 69ZA.  It says:

This section applies to the following statutory provisions—

(a)section 252 or 253 of the Protection of the Environment Operations Act 1977 –

Do your Honours have Protection of the Environment Operations Act?

GAGELER CJ:   No, we do not.

BEECH-JONES J:   We do in the joint book.

MR HUTLEY:   That is, your Honour, tab 20, page 657 – and that tab 20 is in, I think, volume ‑ ‑ ‑

BEECH-JONES J:   Volume 3.

MR HUTLEY:   Volume 3, thank you.  Can I take your Honours to it.  That is the version of the Act as it was from 30 October 2023.  Your Honours see that from the bottom.  That was the position as to where the litigation applied.  Now, 252 is dealing with a standing which provided that: 

Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.

But that was that Act.  But 253 is perhaps the more important one from the point of view of the IFOAs.  It says:

Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or likely to cause harm to the environment.

I will not go on with the rest of it.  That was the first section dealt with in 69ZA(1).  Then, can I jump down to (c).  That deals with section 219 of Protection of the Environment Operations Act.  That gave a right of open standing with leave to enforce the criminal provisions of that Act.  We do not have a copy, that section is not before your Honours in the book, but I can tell your Honours that is what it does.

GAGELER CJ:   Are these the current versions of these provisions? 

MR HUTLEY:   They are the current versions.  In due course, I will point your Honour to the versions which were – when I come to the historical sections – but they were the ones which were current at the time to which this case is directed.  Can I take your Honours then to 69ZA.  Now, this is a cover‑all, catch‑all provision. 

GAGELER CJ:   Paragraph (b)?

MR HUTLEY:   Paragraph (b).  It says that applies to: 

a provision of an Act that gives any person a right to institute proceedings –

irrespective of any infringement of rights.  In other words, this in effect disapplies every Act.  In one sense, it might have been said to render (a) and (c) superfluous, but I think it comes back as being of use for various reasons.  Anyway, that is the way they did it.  In effect, this says – even if there is an infringement of a right, not just an ACF interest – this is what was concerned.

BEECH-JONES J:   Just to put it another way, do you say that a provision of an Act that gives any person a right, does that include section 20(2) of the Land and Environment Court Act?

MR HUTLEY:   Yes.  We say if our learned friends are right and it is not a common law and what is known, then it applies to that as well, but it is a fortiori.  This is whether or not any right of a person has or may be infringed.  So, in effect, it removes an – if a person – because an IFOA takes place, somebody’s property rights or interests – actual entitlements – are infringed, they have no standing.

EDELMAN J:   Is 69ZA(1)(b) using “right” in that narrower sense?  Or is it using it in a potentially broader sense?  The sense Hohfeld criticised to include rights, privileges and immunities.

MR HUTLEY:   That was our next point.  We say if it is a right, privilege, power at that broad level, we say that goes directly to the position with which one is dealing with here.  Namely, if one conceives of ACF standing as a right in the sense of a power – a privilege, an entitlement and right – but the difficulty one runs into is it is hard to say that right has been infringed.  This is directed more to, as we see it, an Act under an IFOA which infringes a property right or other statutory right of a person so there is an infringement, which – under conventional voice principles – would give you standing immediately to enforce the duty.

GAGELER CJ:   Are you reading this paragraph differently from the way it was read in the Court of Appeal?

MR HUTLEY:   Yes.  I am just reading it as it is said.  We say, in effect, it says:

a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach . . . of the Act or an instrument made under the Act –

So, any Act, any instrument 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.

GAGELER CJ:   So, one way of reading it, which is I think the way it was read in the Court of Appeal, is that is an elaborate way of referring to an open standing provision of the same nature as the (a) and (c), but you say it goes further.

MR HUTLEY:   We say it is plenary.

BEECH‑JONES J:   Well, that interpretation emphasises that it is the Act that gives “any person” ‑ ‑ ‑ 

MR HUTLEY:   Quite.

BEECH‑JONES J:   ‑ ‑ ‑ which is the precise wording at 252.  Section 252(1) says “Any person”.

MR HUTLEY:   That does not have to mean all persons.

BEECH‑JONES J:   No, well, that is a description of the nature of the provision rather than ‑ ‑ ‑ 

MR HUTLEY:   Quite.

BEECH‑JONES J:   But, yes, it is not directed to a provision in relation to a particular person.

MR HUTLEY:   Precisely.

BEECH‑JONES J:   No, I think we are disagreeing.

MR HUTLEY:   What?

BEECH‑JONES J:   We are disagreeing.  The construction against you is that that is not directed to a provision that contemplates particular people as opposed to any person.  I am not advocating it, Mr Hutley, but I am ‑ ‑ ‑ 

MR HUTLEY:   I know.  I understand your Honour.  I now appreciate your Honour’s – but we say read as a matter of plain English it means what it says.

BEECH‑JONES J:   I understand that.

MR HUTLEY:   We say it is – and that is made clear by:

whether or not any right of the person has been or may be infringed . . . as a consequence –

In effect, it is saying any right to institute proceedings to restrain any breach of any Act, even if that breach infringes upon a personal right, property right, you cannot enforce it.  That is what it comes down to.

JAGOT J:   Well, it depends on whether it is a provision of an Act.  It acts on the provisions of the other Acts.

MR HUTLEY:   Quite, but the Act ‑ ‑ ‑ 

JAGOT J:   Not on – is the point not that it does not act other than on the provisions of other Acts, which enable something to happen?

MR HUTLEY:   Quite, but those things may also infringe a personal right of someone.  That is the point we seek to make.

JAGOT J:   Are the words after the comma not, in the second‑last line, “whether or not” – it is only whether there is a provision of an Act that gives the person – whether it be 252, 253, 219 or another, you find the other provision of the Act, wherever it may be, in the Biodiversity Conservation Act or wherever it is hiding.

MR HUTLEY:   But I think, with respect, it is going further.

JAGOT J:   Right.

MR HUTLEY:   It is, in effect, saying, if you find a provision of another Act which gives one standing to do something:

whether or not any right of the person has been or may be infringed –

So, it may only give the provision if their right has been infringed, and it may only give a person a right, whether the right or not has been infringed.

BEECH‑JONES J:   Mr Hutley, if you had a provision that said, any person whose property is affected by the conduct of forestry operations – somewhere else – then the end words of (1)(b) would make it clear that that statutory provision is not engaged.

MR HUTLEY:   Quite.

BEECH‑JONES J:   But that is not necessarily the same as a provision simply conferring jurisdiction and contemplating that people with a special interest, because such a provision is not one that gives any person a right.  I think that is the essence of the ultimate construction against you.

MR HUTLEY:   But as I understand the ACF principle, the Boyce v Paddington principle says if you infringe somebody’s rights through a public duty, you will have standing.  This would seem to trench upon that.

GAGELER CJ:   The flipside has a downside for your argument, I think, and that is that, as you pointed out, Boyce has two limbs, and if this does not eliminate the first limb of Boyce, your argument that the second limb of Boyce is impliedly excluded is a little harder, perhaps.

MR HUTLEY:   Well, Bateman’s Bay says the second limb is inherently a question of construction.  So, whether the first limb is inherently a question of construction and, for that matter, the indication of intention to exclude it has to be more, as it were, direct is a different question because, in effect, taking somebody’s property rights is a different order of inquiry to precluding someone who has “sufficient interest” from bringing a suit.

So, I do not think it has the downside that your Honour has indicated is a possibility.  It is a different order of inquiry.  But what we say, if our argument is right, it helps the argument.  We put it no higher than that.  Now, we then turn to – going to subsection (2), it says:

Proceedings may not be brought under a statutory provision to which this section applies if the breach . . . to which the proceedings relate is as follows—

(a)a breach of this Part (including a breach of any forest agreement) –

That is Part 5A, actually – I do not need to trouble your Honour, 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 the breach of the approval,

(d)a breach of the Act that includes the statutory provision . . . if the breach relates to forestry operations to which an integrated forestry operations approval applies.

Then the general disapplication carved out from that is:

(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.

So, in the circumstances identified in (2), there is standing given to what might be called the governmental individuals identified in (3).

BEECH-JONES J:   There is no doubt in this case that the case brought by the respondent fell within subsection (2), is there?

MR HUTLEY:   No, I do not think so.  I do not think that is what they were saying.

BEECH-JONES J:   No.

MR HUTLEY:   We say that the purpose and effect of this provision is to ensure that when one is seeking to enforce a law and an integrated forestry operation approval is involved, only a defined class of persons can bring enforcement proceedings.  That is consistent with there being a policy of ensuring that approvals are part of an integrated scheme involving a carefully calibrated suite of enforcement and monitoring measures.

Can we now turn to the Biodiversity Conservation Act.  As your Honours will see, if your Honours have it – that is in volume 1, tab 3.

GAGELER CJ:   We have that as a separate copy.

MR HUTLEY:   Your Honours have it.  Part 11 commences in the print I think your Honours have at page 139.  If your Honours note 11.2, it says:

The powers under this Part may be exercised for the purposes of this Act or the native vegetation legislation.

That includes IFOA provisions of the Forestry Act.  Your Honours will find that in your Honours’ print of the Biodiversity Act at page 22, in the definition of “native vegetation legislation”, paragraph (c).

Going back, then, in the Act, your Honours will see at page 140, Division 2 of Part 11, deals with what are called “stop work orders”.  Commencing at 11.3, it says:

If the Environment Agency Head is of the opinion –

of the matters which are set out – contraventions, et cetera – they can issue a stop work order.  There are various provisions then dealing with the workings of that; it is an offence not to comply – that is 11.5.  Under 11.6, there is an appeal against such orders to the Land and Environment Court, and that structure of a scheme for an order being issued, consequences of breach and right of appeal follows through the rest of the suite of things which are provided for under this scheme.

If your Honours then go to Division 3, that deals with what are called interim protection orders.  I took your Honours to 69X of the Forestry Act – I am not going to take you back to it – which carves out IFOAs from that scheme.  If your Honours then go to Division 4, which is 143 of your print, this provides for remediation orders.  At 11.15(a):

The Environmental Agency Head may order a person to carry out specified remediation work in a specified manner and within a specified time –

Then, 11.16 sets out the broad scope such orders can take, of which you would imagine they would, which is a large variety of orders to effectuate the scheme; 11.17 identifies to whom it can be given, which is many and various; and 11.18 deals with the provisions dealing that – if remediation orders are not complied with, provision can be made for that to be undertaken by the environmental agency at the cost of the defaulting obligee under the order.  Then there are provisions for recovery of those costs in other provisions.  Your Honours will see at 11.23 appeals can take place under the Division. 

If one then moves over in your Honours’ print to page 151, there are extensive investigation powers conferred upon individuals through the EPA and authorised officers and the like, which could include – if your Honours go to Division 2 of that, commencing at 12.7 on page 153, “Powers to require information and records”.  If your Honours drop down to 12.11, “Powers of entry and search of premises”.  Dropping over, if you would, to page 156 in the same scheme, there are “Powers to question and to identify persons”.

Can I now go to, if I could, Part 13, “Criminal and civil proceedings”.  Division 1 deals with criminal enforcement, and if your Honours drop down to 13.3, your Honours will see that standing to enforce the criminal provisions is given to a confined class.

BEECH‑JONES J:   Sorry, Mr Hutley, what section was that again?

MR HUTLEY:   Section 13.3, your Honour.  It is on 164 of your Honour’s print.

BEECH‑JONES J:   Thank you, yes.

MR HUTLEY:   It says:

Any legal proceedings for an offence against this Act . . . or for a native vegetation offence, may only be taken by –

the class indicated. Your Honours, some point was made of the use of the word “only” as opposed to when we come to the civil Act. Your Honours will recall that in the Court of Appeal’s reasons. Your Honours, the point goes nowhere because in New South Wales, by operation of section 8 of the Criminal Procedure Act 1986, the Attorney‑General and the DPP each have standing to institute criminal proceedings “for an indictable offence”, and under section 8 of the DPP Act, the DPP can initiate proceedings for summary offences.

In other words, you had to put the word “only” in 13.3 because otherwise you would not exclude the commencement of criminal proceedings by the DPP.  Now, that was a provision which relied on the distinction – I will come back to it when I deal with the civil proceedings in a moment.  I have dealt with remediation order and investigative powers.  Now, could I jump forward from the criminal for a moment.  If your Honours move forward to Division 2 at page 171 of your Honours’ print ‑ ‑ ‑

BEECH‑JONES J:   Mr Hutley, the obligations being enforced under here are the obligations under the Biodiversity Act as applied to forestry operations.  Is that right?

MR HUTLEY:   But, your Honour, I took your Honours to the provisions in the Forestry Act dealing with the IFOAs which provided that the enforcement of the IFOAs provisions was through the Biodiversity Act – these parts.

BEECH‑JONES J:   Right.  But when it is through, that means – are these powers, as incorporated at forestry operations, used to enforce standards in the Biodiversity Act or ‑ ‑ ‑

MR HUTLEY:   Other ones.

BEECH‑JONES J:   ‑ ‑ ‑ conditions in the IFOA?

MR HUTLEY:   Both.

BEECH‑JONES J:   Both.  All right.

MR HUTLEY:   And I am going to point out to your Honours in a little while, there are differing – not they apply directly to the IFOA position, but there are different standing requirements with respect to different means of enforcing different parts of the Biodiversity Act.  Sometimes the standing is open standing, sometimes it is standing only with the consent of the Minister or the EPA and the like.  But I am just dealing at the moment with those parts which are directly relevant through the provision of the Forestry Act to which I took you, which confers powers upon the EPA with respect to IFOAs, if your Honours please.

Now, I was taking your Honours to “Division 2 Civil proceedings”, at page 171 of the print.  Your Honours see “breach”, and your Honours see, at 13.14, it says:

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 –

In effect, that, with respect to those matters, is given general open standing, including standing to the – now, then immediately after that, one turns to 13.14A:

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 –

The word “only” is not used there, but “only” is not necessary, firstly for the reason that it was necessary with respect to criminal proceedings, for the reason I indicated – so, the distinction drawn in the Court of Appeal was, with respect, wrong – and, by contrast, with 13.14A, the right to commence:

proceedings in the Land and Environment Court for an order to remedy or restrain a breach of Part 5B of the Forestry Act –

is a right that has no existence apart from 13.14A.  Accordingly, there was no need to use the word “only”.

GAGELER CJ:   Could the Attorney‑General bring a civil proceeding?

MR HUTLEY:   But the Attorney‑General’s power as a Minister is only through – to go back to volume 1, which I have lost momentarily – if your Honours go back, such power as the Attorney‑General would have to enforce would be through 69ZA, as a Minister, in the circumstances referred to in 69ZA.  So, it would not be plenary through the Biodiversity Act.

GAGELER CJ:   So, you would say this would also exclude a relator action?

MR HUTLEY:   Quite.  That is the structure.  Now, whether the Attorney‑General would be “a Minister” for the purposes of 69ZA might be a question of construction.  We have thought about that, and we think that probably the better view is he or she would be.  Therefore, that is how the structure works.

I have taken you to 13.14A.  Can your Honours note, to go back to 13.15(1), that provides for open standing for breaches of biodiversity stewardship agreements; 13.15(2) then provides for narrower standing for breaches of private land conservation agreements; 13.16(1) provides for limited standing – that is:

The Minister, or a person acting with –

his or her consent, for breach of biodiversity conservation agreements.  Then, 13.17(1), if your Honours go to that, confirms that where there is a conferral of a right of standing, there need not be an infringement of a right of that person for that person to have standing.  We think that is significant, that under 13.17(1), it refers to proceedings being able to be:

brought by a person under this Division –

That is, one looks to the Division, not the common law, to ascertain who has standing to bring proceedings for the kind of breaches specified.  The Division, as we have seen, carefully delineates who may bring proceedings and makes carefully delineated distinctions stretching from open standing through various shades of limitation on that to very limited standing in the circumstances with which we are concerned.

GAGELER CJ:   Mr Hutley, I have not really traced this through, but do each of these standing provisions link to a particular head of jurisdiction that one sees in these enumerable paragraphs in section 20(1) of the Land and Environment Court Act?

MR HUTLEY:   I cannot answer that immediately, your Honour.  I see it is 11.15 am, or thereabouts, your Honour.

GAGELER CJ:   Yes.

MR HUTLEY:   I am sure somebody to my left will say, of course, or, do not be silly.

GAGELER CJ:   Very good.  I will wait for that.  We will take the morning adjournment.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR HUTLEY:   The answer to your Honour’s question is, I think, section 20(2)(a) of the Land and Environment Court Act, but the point we were making by taking your Honours through the provisions such as 13.15 and following is there, as it were, standing and whether there would be or could be ACF standing is not to be answered solely by reference to the Land and Environment Court Act but the interrelationship between that and, relevantly, here, the Biodiversity Conservation Act.

For example, where in 13.16, it can be limited standing and only persons standing with the Minister’s consent.  There could not be also, in our respectful submission, ACF standing because that would wholly undermine that structure.  And that is why we take your Honours ‑ ‑ ‑ 

JAGOT J:   If – I understood what you just said means that, for the purpose of section 69ZA(2), “under a statutory provision” invokes section 20(2A) and (2) of the Land and Environment Court Act, so that for the purpose of section 20(3)(a) and the reference to:

Biodiversity Conservation Act –

and:

Part 5 or 5B of the Forestry Act –

that is how you read it.  There is a whole load of other Acts there, including, for example, the Rural Fires Act.  That Act, for example, contains various public duties about extinguishing fires on your land, et cetera, et cetera.

If your argument means that the intersection between all of those other listed Acts, most of which I do not know, except for provisions of the Rural Fires Act, and section 69ZA.  So, assume, for example, you have an IFOA and you have to burn this bit of land, or whatever; and then you are a person who wants to say, well, hang on a minute, that is going to poison me or escape or whatever and you want to bring proceedings to enforce the duty in the Rural Fires Act for extinguishment by the occupier, how does that all work?

MR HUTLEY:   Well, it all depends upon the structure of the Rural Fires Act, because we submit if one is – one is dealing here with ACF standing.  ACF standing is, in effect, special interest, we say, whether standing exists or not must be ultimately a question of construction of the relevant legislative regime or regime.  That is our first position.

JAGOT J:   Sure.

MR HUTLEY:   If that is right, then one, in effect, to determine whether ACF standing exists, one has to look at the scheme.  We just cannot answer it ex ante, in our respectful submission, because there may be provisions in the Rural Fires Act – I do not know ‑ ‑ ‑

JAGOT J:   No, no, that is my point.

MR HUTLEY:   ‑ ‑ ‑ which makes it perfectly clear that the intention was that merely having a special interest was not sufficient.

JAGOT J:   But you would have to be very careful is, I guess, my point.  Section 69ZA, the way you read it, is a very general provision that has a quite general effect of wiping out common law standing.

MR HUTLEY:   But it is not only just 69ZA, with respect, your Honour, it is also 69SB ‑ ‑ ‑

JAGOT J:   Sure, sure.

MR HUTLEY:   ‑ ‑ ‑ and I will come to the second reading speeches, which make it perfectly clear that there was a clear intention to exclude all third parties from being invoked.

JAGOT J:   No, I understand that, but just focusing – if you are right about how 69ZA works, then it is cutting across whatever duties and capacities of people under all of the Acts listed in subsection 20(3) ‑ ‑ ‑

MR HUTLEY:   Only to the extent of ones involved with matters falling within 69ZA(2), of the character ‑ ‑ ‑ 

JAGOT J:   That is the point, though.  That is the point, the way you read it is very – it has this capacity of wiping out what you are calling ACF, whatever common law standing.  Without looking at every one of these Acts – and the Rural Fires Act leaps out at me as one that imposes duties in which neighbours or other people would probably have special interests in enforcing the statutory duty of, you know, clearing your land of hazardous materials for bushfires, or putting out a fire, and all those sorts of things, and those kinds of obligations may well be hiding in all kinds of Acts here – I do not know, but certainly they are in the Rural Fires Act.

MR HUTLEY:   But that may be a standard ‑ ‑ ‑

JAGOT J:   It is a big deal to wipe out common law standing.

MR HUTLEY:   It may not be wiped out, your Honour. You would have to look at the particular duty under the Fires Act, see its interrelationship with – its survival or otherwise – in relation to the IFOAs. Then if it does, and it is not entrenched upon by Part 5B, then you may well have that standing.

JAGOT J:   Accepting all that, that is a very complicated process or interaction between the nature of the duty and the right.  The question is, would Parliament really have intended that, as opposed – so, that every Act, you would have to go through and do something pretty complicated.

MR HUTLEY:   That is why I took your Honours to 13.15, 13.16 and 13.17.  Some of them, you would completely undermine those structures if any person who happened to have a special interest could bring proceedings.

EDELMAN J:   Why would 69ZA have an operation of that breadth?  I mean, section 69ZA(2) is concerned with:

proceedings to which this section applies if the breach –

that is, the breach about which the proceedings are brought, if the breach is within (a), (b), (c) or (d).  So even if, for example, a breach of one of the particular statutes that are listed in section 20 would also be a breach of, say, an integrated forestry operations approval, that would not fall within the terms of (c).

MR HUTLEY:   That is what I am saying, your Honour.  You would have to, in effect, look at the structure of the legislative regimes and there may be absolutely no affectation at all.  But in a field of this complexity, in the sense of with this many pieces of legislation, the whole aim of what we say was being done here was to create an area of simple interactions, in the sense of simple procedures of approvals, simple procedures of enforcement and not to bring about what, when I come to the history, people were saying there was constant litigation by third parties, particularly under the open standing provisions, which was interfering with the orderly progression – as the legislature conceived it – of these forms of forestry operations.  When one sees the history, the whole structure was designed to avoid, we say, exactly is happening here, exactly what is happening.  That is this scheme.  Now, I cannot speak to the Fire Act, your Honour.

JAGOT J:   No, no, I understand.  It is just that ‑ ‑ ‑

MR HUTLEY:   I do not know.  But this scheme, if one reads through it, we say makes pellucidly clear that there was to be, in effect, one or a number of totally designated enforcement bodies.  That was it.  That was seen as essential to an efficient operation of the forestry activities which were covered.  That is our point.

I am not for a moment saying it may not involve, in certain cases, questions of construction.  It does here.  But we say one has to be careful, in our respectful submission, until the concrete case was pushed, imagining there would be a floodgate from this.  We say this is a relatively confined scope of operation.  It deals with areas subject to IFOAs.  They have been taken out of the ordinary run of many Acts applying to them for this very reason.

EDELMAN J:   I think what I was trying to ask you is:  is it narrower than that?  It certainly deals with areas that are subject to IFOAs, but it seems to me that 69ZA(2) is concerned where the breach itself that is complained about, involves, in a broad sense, the IFOA, not where there might be an IFOA present, but the breach that is being relied upon is a breach under the National Parks and Wildlife Act or the Pesticides Act or some other Act.

MR HUTLEY:   I just have to take your Honours’ attention to (d).

BEECH-JONES J:   Sorry – (d) of what, Mr Hutley?

MR HUTLEY:   I am sorry – I am going to 69ZA(2)(d). 

EDELMAN J:   See, “relates to”, there, means even that if the breach itself is not a breach of the Act, but it could concern it.

MR HUTLEY:   Quite – and “the Act” is only the Act which is referred to in subsection (1).  So, it is more limited still.

BEECH-JONES J:   Just to answer – I think, with 69ZA(2)(c) – if you look at (c):

a breach of an Act or a law –

And then, in (c), that picks up a case, for example, where you had a breach of the Biodiversity Act and your client said:  no, we are not in breach, because we are carrying it out in accordance with the integrated forestry approval.

MR HUTLEY:   Yes.

BEECH‑JONES J:   And then somebody said, no, you are not, because you are in breach of that.  And 69ZA(1)(b) would certainly exclude 13.14.

MR HUTLEY:   I accept that, your Honour.

BEECH‑JONES J:   Right.

MR HUTLEY:   I accept that.

BEECH‑JONES J:   Do you accept that?  I mean, I think your opponents probably accept that as well.

MR HUTLEY:   In other words, to take up Justice Edelman’s – the focus is about the Biodiversity Act – I am sorry, IFOAs, in each case.

BEECH‑JONES J:   But how they relate to not only breaches of the Forestry Act, but breaches of other Acts.

MR HUTLEY:   I understand that, your Honour.

BEECH-JONES J:   Yes, all right.

MR HUTLEY:   Exactly, we embrace the idea, as your Honour said, there may be many other Acts.  It was exactly that sort of problem that was the problem that everybody was trying to get away from – that is, in effect, there would be constant, as it were, proceedings being brought by third persons to, in effect, trench upon this area of undertaking which was conceived by the legislature to be, we say, adequately protected by the enforcement procedures, which we have put, to the exclusion of all others.

STEWARD J:   You might say, a parliamentary sledgehammer to insulate IFOAs from anybody but the three governmental individuals from enforcing it.

MR HUTLEY:   Quite.  And it revolves – I have to take your Honours through the history – it becomes focused upon the Environment Protection Authority, which has the general role, as I have taken your Honours to, in 69SB, which I have referred to.

BEECH-JONES J:   Mr Hutley, one thing is clear, though, from what you are taking us to.  Division 2 ‑ ‑ ‑

MR HUTLEY:   Division 2 of which Part of which Act, your Honour?

BEECH-JONES J:   Sorry, good point – the Biodiversity Conservation Act – you were taking us to several provisions.

MR HUTLEY:   If your Honour gives me a moment to get there.

BEECH-JONES J:   Division 2 of Part 13.  Are they not good examples of numerous provisions that are expressed in terms of conferring rights to institute proceedings on “any person”?

MR HUTLEY:   There are.  Sometimes they are on “any person”, sometimes they are on “any person with consent”, and the like.

BEECH-JONES J:   Yes.

MR HUTLEY:   We embrace that, because precisely that has not been done in the same structure where we are concerned – that is why we take it.

BEECH-JONES J:   But, just in terms of 69ZA(1)(b), it has a lot of work to do, even on the opposing construction.

MR HUTLEY:   But, your Honour, I do not want 69ZA(1)(b) to rise above the point for which we are making.  If our construction is right, it supports our argument powerfully.  But our argument does not, in any way, depend upon it.

BEECH-JONES J:   I understand that.  Not, in any way – it does in some ways but not exclusively.

MR HUTLEY:   We say our argument gets well over the line without it.

STEWARD J:   Subsection (b) is the icing on the cake.

MR HUTLEY:   Thank you, your Honour.

STEWARD J:   All right.

MR HUTLEY:   Now, where was I?  I was going to take your Honours, after that, to the history of the statutory regime.  Now, your Honours might find some assistance in having the aide‑mémoire before you, as I proceed through this.  What we say is that they show there has been a sustained policy of Parliament to ensure there was no third party standing in respect of IFOAs.

Now, to show the mischief at which the IFOAs were directed, I need to take your Honours back to the position that obtained on the enactment of the Environmental Planning and Assessment Act 1979.  Your Honours will find that at tab 9 of volume 3 of the joint book of authorities, it is at page 562.  Now, we have traced this detail in detail in our written submissions, so I will seek to be brief, but to bring out the central aspects.

At the time – that is, when the Act before your Honours was brought into operation – forestry operations were predominantly carried out by my client’s predecessor, the Forestry Commission of New South Wales.  IFOAs had not yet been developed.  They were to come later, in 1999.  What you had in the pre‑IFOA system, as we will call it, was a complex patchwork of regulations, approvals and licences that governed forestry operations in State forests and other Crown timberlands.  As a result, a person who wanted to carry out forestry operations needed to obtain multiple licences under different Acts, and hence the perception developed of a need for integration which gave rise to the IFOA structure with which we are concerned.

Under the pre‑IFOA system, forestry operations of the kind now regulated by IFOAs were regulated by what was then Part 5 of the Environmental Planning and Assessment Act.  That Part provided that specific “activities” required “approval” from a “determining authority”, which, in the commission’s case, was the Minister at that time.  Forestry operations met the definition of an activity and therefore required the Minister’s approval.  If the forestry operations were likely to have significantly affected the environment, the proponent was required to prepare and exhibit publicly – an environmental impact statement.

Now, I am not going to take your Honours to the provisions.  For reference, the definition of “activity” your Honours will find at page 564; the definition of “determining authority” at 565; and the section requiring an environmental impact statement was 112(1)(a), which is at 566.  The important point for present purposes, and to show the context in which the Parliament legislated the IFOA structure, is that under the pre‑IFOA framework, anyone could bring proceedings challenging the forestry operations by relying upon the Environmental Planning and Assessment Act open standing provision, which was then found in section 123, which your Honours will find on page 578 of the book.

In paragraph 7, footnote 3 of our written submissions in chief, we have identified instances where third parties used open standing to challenge forestry operations as non‑compliant with the environmental impact statement process.  This ability of third parties to challenge forestry operations is precisely what Parliament wanted to remove when it introduced the IFOA in 1999.  They were introduced, your Honours, by the Forestry and National Park Estate Act 1998 – the FNPE Act.  We have referred to it in aide‑mémoire.  Your Honours will find that at tab 14 in volume 3 at page 602 – that is the relevant Part; the actual Act commences at 600.

Where you will find the relevant part, being Part 4, most of the provisions continue to exist without much alteration in the Forestry Act, albeit with different numbering.  There are a few provisions in the 1999 Act – the FNP Act – that we wish to emphasise before taking your Honours to the extrinsic materials which, we submit, support our argument.

First, if your Honours go to section 25 at page 602, that makes clear that the purpose of the IFOA is to integrate the various licences then governing forestry operations.  Now that, just to remind your Honours, is retained in the Forestry Act at 69L, which I took your Honours to.  The second provision of note is section 32 at page 604.  That section expressly conferred standing on the Minister to:

bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the conditions of an integrated forestry operations approval.

As we will show you in a little while, this did not exclude the standing of the EPA.  Before we move on, we should note that section 32 no longer appears in the Forestry Act; it has been superseded by section 69SB, which confers the function of enforcing compliance with IFOAs on the EPA.  We submit that that change, if anything, has increased the focus on the enforcement function of the EPA and therefore supports our argument.

The next notable provision in the 1999 Act is section 36(1), which is at page 69, I think, in the print before your Honours – it is page 607, I am sorry, your Honours. Section 36(1) – this provision excluded IFOAs from the assessment approval process under Part 5 of the EPA Act, bringing to an end the ability of third parties to use open standing to challenge forestry operations. I took your Honours to section 69W in the Forestry Act, which is substantially identical.

The next significant provision – if your Honours would go to section 40 on page 609 – this provision disapplies open standing for proceedings relating to breach of integrated approval. It is carried through without significant alteration to 69ZA in Part 5B of the current Forestry Act.

GAGELER CJ:   I am sorry, Mr Hutley, I missed the section numbering.

MR HUTLEY:   Section 40, your Honour.

GAGELER CJ:   Thank you.

MR HUTLEY:   It is page 609.  As your Honours will see, subsection (3)(b) at page 610 states that the disapplication provision:

does not apply to any proceedings brought by:

(b)the Environment Protection Authority –

This means that even though section 32 expressly gave the Minister standing, it was not to the exclusion of the EPA for matters within (2).  There are only two differences between section 40 and the current 69ZA.  The first is that section 40 disapplied the ability to bring proceedings under an Act known as the Environmental Offences and Penalties Act 1989.  That Act has since been repealed, and therefore 69ZA, of course, makes no reference to the section.  The second difference is that the references to 40(2)(b) and (c) to:

a breach of the terms of any licence provided by the approval –

have been removed because, although the FNP Act allowed for the granting of licences under an approval, Part 5B of the Forestry Act no longer does so.  Those provisions dealing with licences, could I tell your Honours, are sections 33, 34 and 35 at pages 605 to 606 – and I do not need to take your Honours to them.

BEECH‑JONES J:   Sorry, what are those sections again, Mr Hutley?

MR HUTLEY:   Sections 33 through 35 inclusive, pages 605 to 606.

BEECH‑JONES J:   Thank you.

MR HUTLEY:   Having identified those key provisions, can I take your Honours to the second reading speech to the FNPE Bill, which your Honours will find at joint book of authorities volume 7, tab 41, pages 1747 and following.  It only starts at page 1749, if your Honours are jumping by tabs – it does not really matter.

The critical passages – the second reading speech is that of Mr Yeadon, commencing at 1747.  Can I take your Honours to 1749.  Now, as is the way with things, some of the clauses have changed between the Bill and the Act, and critically, when we come to it, clause 38 has changed to section 40.  But we start, if we might, with the second column at 1749, where it says:

Forestry operations . . . are governed by a plethora of regulations, approvals and licences.  Under part 4 of this bill a co‑ordinated approach has been developed.  This approach is to be expressed in the integrated forestry operations approvals.  These approvals provide a framework for forestry operations, an approval which is up front, clearly defined and to which amendments or variations will be transparent and reasoned.

Then it sets out how they could be approved.  And the next paragraph deals with the joint approval process.  Can we drop down, then, to the last paragraph on the page.  It then sets out what they may obtain.  Can I take it up at the sentence:

These new provisions set a much higher standard for accountability and transparency.  Any and all changes to an integrated approval must be laid before this Parliament within three sitting days, together with the reasons for the variation.  The extraordinarily comprehensive and thorough nature of the forestry assessment process that has been undertaken should be remembered.  This has been a massive and vitally necessary undertaking.

If we then move over to the next page, that is, 1750, then they go through:

It has been a systematic and scientific collation –

and tells it.  Then, in the same first paragraph:

The extent of our studies of the forests is overwhelming and because of that it is the Government’s intention that part 5 of the Environmental Planning and Assessment Act will not apply in respect of the carrying out of the forestry operations during any period that an integrated forest operation approval applies –

and then it goes on and deals with those.  Then, the next paragraph deals with the regional forest assessment process.  Can I drop down to the last two paragraphs – these are important:

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 –

et cetera:

Certainty cannot be increased if we continue to allow challenges to the licensing system.

There is a reference to clause 38, which your Honours can take as 40 of the Act which has been enacted:

Clause 38 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 licenses are adhered to. Part 5 of the bill deals with miscellaneous matters.

Et cetera.  Now we say, and we submit, that it makes it, in the context of the legislative framework that they were in, pellucidly clear what the intention of Parliament was.  That pellucid clarity, we say, is wholly at odds with the existence of what we have called ACF standing, for the reasons which we have advanced.

Can I take your Honours forward to page 1754 in the joint book.  That is tab 42, in volume 7.  That is the explanatory note.  If your Honours go over to 1758 and note clause 38, we say that is also supportive.  It is put against us that section 40(2) of the FNPE Act – like 69ZA of the Forestry Act – referred only to:

Proceedings . . . brought under a statutory provision –

and that that has left untouched the standing recognised by ACF.  If the proceedings are, in effect, brought by reason of the conferral of the jurisdiction by a statute, then the answer to that may be that at that point you are simply wrong.  But let us set aside that for the moment.  We have four answers to the proposition.

The first answer is that the second reading speech makes pellucidly clear that Parliament’s intention was not simply to remove statutory rights of third parties to bring proceedings relating to IFOAs.  Instead, it was to remove all standing of third parties in proceedings relating to IFOAs.  I have taken your Honours to the passages.

Second, having regard to the scheme being set up by the FNPE Act, there was no need for Parliament to, as it were, disapply ACF standing expressly.  Even if be assumed that ACF standing is a principle that can exist independently of the statute one is seeking to enforce, that principle was prevented from coming into operation by the FNPE Act, itself.  The Act set up a comprehensive scheme for IFOA enforcement that, we say, left no room for ACF standing to operate.  Parliament could not have disapplied something that never existed under the scheme in the first place.

The third answer is that 69ZA(2) came in – there was no, what might be called ACF standing for enforcement of these kinds of approvals for another reason.  Because of the open standing provisions of the Environmental Planning and Assessment Act, contextually ACF standing, we would say, did not exist.  Parliament had granted the widest possible form of statutory opening standing.  In doing so, there was no occasion for there to be what would be called ACF standing.

With the FNPE Act, it was now seeking to take away that grant of plenary standing for proceedings relating to the integrated approvals that was introduced.  It cannot sensibly be regarded as having intended to introduce, sub silentio, ACF standing to fill an assumed void in the face of the second reading speech and the evident intent and structure of the legislation then subsisting.

The fourth answer is that if we are right on our primary case, ACF standing is given by statutory provision, so it is logical for 69ZA to remove standing by disapplying statutory provisions.

GAGELER CJ: Mr Hutley, part of this submission, if I can go back to the first Act that you took us to – the 1979 Act – and you look at section 123 ‑ ‑ ‑

MR HUTLEY:   Could I just turn that up, your Honour?

GAGELER CJ:   It is in tab 9, page 578.

MR HUTLEY:   I think it is in volume 7.  Bear with me – I am sorry, the page, your Honour?

GAGELER CJ:   Page 578 – it was the provision you highlighted when you went through it.

MR HUTLEY:   Volume 3, page 578 – thank you, your Honour, if I can just find that, I missed it momentarily.  Yes, your Honour?

GAGELER CJ: You see section 123(1) is the origin of the language you see in section 69ZA(1)(b). You seem to be saying that that conferral of open standing had the effect of abrogating common law principles, not just adding standing.

MR HUTLEY:   Relevantly to anything to do with forestry, we say that common law principles – common law principles which, at root, rely upon inadequacy of remedy.  That is where equity supplies that remedy, as a matter of history, because of inadequacy of remedy.  We say, in the circumstance of 123, there could not, ex hypothesi, be such inadequacy of remedy.  It is simply, whatever the jurisdiction of the court was, it was a jurisdiction which, in effect, was to apply those principles.  And those principles simply did not respond to create a relationship of special interest in a juridically meaningful sense once there was open standing.  That is how we put it.

GAGELER CJ:   I understand.  Thank you.

MR HUTLEY:   Now, as we say, ultimately the respondent’s argument depends on ACF standing being imposed or introduced in the face of an express statement that the intention of predecessor to 69ZA was to avoid third party interference.  It would also be curious – I would be repeating myself.

We say the effect of the statute was to create a single integrated approval process for forestry operations, increasing certainty in all the ways we have indicated, and a central element of that scheme was to define with precision those who could, in effect, enforce the scheme.  Whether one gives that the epithet code or not really does not advance the intellectual exercise but that, we say, was the structure.  We say the position has not altered in any fundamental sense since the FNP Act.  If anything, it has become more concentrated on that aim by, in effect, swapping out the Minister’s prime position for that of the Environmental Planning Authority.

I will try to go through these as quickly as I can, your Honours, but it is a bit labyrinthine – I am hopeful as well.  The first change occurred on 1 January 2013 with the commencement of the Forestry Act, and the Forestry Act transferred Part 4 of the FNP Act into Part 5B of the Forestry Act and renumbered the provisions.  Your Honours will see this if your Honours go to joint book of authorities volume 3, tab 13, page 599 and it is item [16] of Schedule 4.  I will not go through it in detail, but it did lead to the introduction of section 69S of the Forestry Act which conferred standing on the Minister.  That section is no longer there, and I will explain why it is not – and I told you that 40 becomes 69ZA.

The next change to the scheme occurs in 2018 by the Forestry Legislation Amendment Act 2018, and your Honours will find that at tab 15, volume 3, and if your Honours go to page 617 and look at Schedule 2, item [28] – 69S confers express standing on the Minister – that provision was omitted.  If your Honours then go to item [29] ‑ ‑ ‑ 

BEECH‑JONES J:   Sorry, what was that item again, Mr Hutley, the first one?

MR HUTLEY:   Sorry, item [28] of Schedule 2, your Honour, and it is at page 617.

BEECH‑JONES J:   Thank you.

MR HUTLEY:   If your Honours then go to Schedule 2, item [29] at pages 617 to 618, section 69SA and SB are inserted and they do what they do, and I am not going to go over those. If your Honours then go to Schedule 3, item [16], and that is at page 624, section 13.14A is introduced expressly conferring standing on the EPA – that introduced, of course, into the Biodiversity Conservation Act.  If your Honours go in that Act – the 2018 Act – to Schedule 3, item [6], amending 11.15, the 2018 Amendment Act also introduced the provisions that allowed for the making of remediation orders and temporary stop work orders in respect of IFOAs.

As can be seen, the 2018 amendment not only continued the policy of reposing enforcement functions for IFOAs in a limited class that included the EPA, it laid further emphasis on the EPA’s role of emitting the provision that specifically conferred standing on the Minister, 69S, and inserting a provision that conferred – and I quote – “the function of enforcing” on the EPA, 69SB.

Finally, could your Honours turn up the second reading speech of the Forestry Legislation Amendment Bill 2018, which is at volume 7, tab 40, page 1617.  If your Honours turn over to 1618, in the third paragraph, in the sentence:

It also provides –

referring to the Bill:

for increased regulatory certainty, enhanced transparency and greater enforceability.  The bill amends the Forestry Act –

et cetera, and there is introduced the thing called Coastal IFOAs.  So, in other words, the aim was to enhance the enforceability, and one sees that through the scheme in the Biodiversity Act.

GAGELER CJ:   Mr Hutley, between 1999 and – I will not put the timeframe on it.  Have there been previous challenges of the sort that the applicants in the current proceedings bring?

MR HUTLEY:   I am not aware of one to an IFOA.  I can get instructions, your Honour.  I am instructed there have been none to enforce IFOAs.

GAGELER CJ:   Thank you.

MR HUTLEY:   Now, just to complete the structure, can I deal with the legislation governing the EPA.  If your Honours go to volume 3, tab 18, and turn to 642 of that and look at section 4 of the Protection of the Environment Administration Act, it says:

The objects of the Act are as follows—

(a)     to constitute the Environment Protection Authority,

(b)     to provide integrated administration for –

the environment.  Section 5 deals with the constitution of the EPA.  Section 6 deals with the objects of that authority:

to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development –

I will return to that – and:

to reduce the risks –

et cetera.  Then subsection (2) sets out what “ecologically sustainable development” involves, and then it says, in 7, the general functions:

The Authority has such environment protection and other functions as are conferred or imposed on it –

That comes back to the provisions I have taken your Honours through.  The general powers of the Authority are in 8.  The structure of the Authority is in Division 1 and Division 2.  You will see that the board of the Authority is made up of men and women, or include men and women who are experts or have “skills and experience” in a range of fields, including:

(a)environmental science . . .

(b)environmental law –

and other matters.  The functions of the board are at 16.  There is also, under 17:

An Environmental Counsel to the Board is to be engaged by the Authority.

And he or she has the functions under section 17(3).  So, in other words, this is a body whose remit is to, in effect, protect and advance the interests of the environment.  It has been chosen as the vector by Parliament in relation to IFOAs and armed with a vast range of powers to make good, enforce and the like, the obligation.  We say that is relevant.

The last topic I wish to turn to is matters of general principle and history.  In our written submissions in chief, we have set out the course of authority by which ACF standing, as we have put it, was recognised and developed.  We have drawn attention to what his Honour Justice Gummow said in Truth About Motorways.  Your Honours will find that in the joint book at volume 5, page 1257.  The key point made by his Honour ‑ ‑ ‑

GAGELER CJ:   Can you give us the CLR reference? 

MR HUTLEY: I am sorry, your Honour – (2000) 200 CLR 591. If your Honours go in the joint book to 1294 to 1295, in paragraph 98, his Honour says, relevantly, towards the bottom:

The litigious activity did not involve the exercise by a plaintiff of personal rights bestowed upon the plaintiff by statute.  Rather, it involved the use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate provisions to secure the compliance by others with particular statutory regimes or obligations of a public nature.

And his Honour at paragraph 97 had given an example of that, referring back to Bateman’s Bay.  As your Honour knows, it is a matter of history, particularly in Australia, the position of the Attorney‑General has not been found to be adequate to, in effect, enforce those public duties, for reasons which are discussed in the history.

We say the occasion for equity’s intervention was thus inadequacy of the existing law.  There is less or no need for equity to intervene if the law provides adequate means for enforcing obligations, or Parliament has expressed a view that the structure that they have established is adequate.  We say that is precisely what they have said.  We have set up a regime, which is a good regime – in the sense, effective – armed it with vast powers to achieve a social aim, which we say, like most social aims, involves a compromise between conflicting interests.

GAGELER CJ:   So, as I am understanding your argument, this is just another way of putting what we might call the code argument.

MR HUTLEY:   Quite.  Can I say, it is also saying, objectively as a matter of construction, the court would find that there is no basis in respect of IFOAs to find, as a matter of construction of the Court Act in the context of this scheme, of a juridically meaningful class which we have called having ACF standing.

GAGELER CJ:   It might just be fleshing out that argument.  Are you saying that we are in the auxiliary jurisdiction of equity when we are dealing with the second limb of voice and there, there is some kind of preliminary inquiry to be had as to the adequacy of common law or statutory remedies?

MR HUTLEY:   It is a construction argument, we say.  So, one has to, in effect, investigate the norm – the statutory duty – and the context in which one finds it to evaluate whether there is, to put it colloquially, a need for the introduction by reference to equitable principles of a statute – I do not want to get involved in – of a concept of ACF standing.  That is the predicate step before finding that there can be an inquiry as to whether a particular organisation or individual possesses that standing.

BEECH-JONES J:   By what standards do we apply in making an assessment as to the adequacy of the enforcement mechanisms of Parliament?

MR HUTLEY:   The very same standards as equity applied to develop this concept.  One looks to Parliament’s intention.  If Parliament is silent as to adequacy and the court objectively can see that the scheme is of a classic variety where there is no one who has been chosen specifically or there is no structure design for enforcement with precision, the answer to the question might be relatively simple.  But when one has Parliament stating, as it were in stentorian terms, what it is doing and that one can take from the legislative regime reflects a real endeavour by Parliament to set up a scheme which confers vast powers on an entity who is charged, as we say this entity is charged, with enforcing the environment, and one could not, in our respectful submission, find there is such – to take what Justice Gummow says is an inadequate or deficient system ‑ ‑ ‑

EDELMAN J:   There are two different arguments, though, that have been rolled up in the one.  The first argument is one about an implied negative intention or a code argument that one finds by implication in the scheme a negative intention to exclude everything else.  The second argument is, well, even if one does not find that, the basal nature of the common law jurisdiction to grant enforceability, like it is for the prerogative writs, is that there is no other adequate means of enforcement.  The history traced by Justice Gummow shows that the later action were just not adequate where the Attorney‑General is part of political scheme.

MR HUTLEY:   Precisely.  I am going to come to this statement by the plurality in Bateman’s Bay where they say the issue is not answered by finding that somebody possesses, the characteristic of special interest.  That is the beginning of the inquiry, not the end of the inquiry.

EDELMAN J:   If the second argument, which does not depend on any implied negative implication, is right, that would mean, would it not, that in any statute once a scheme of standing is introduced, there would never be the rules of what you are calling ACF standing to apply?

MR HUTLEY:   Your Honour, I never say never.  All I am saying is there may be ‑ ‑ ‑

EDELMAN J:   But there would always be in that situation an available remedy for enforcement.

MR HUTLEY:   There would be an argument, but the court – let it be assumed that a statute said, perhaps superfluously, only that the Attorney‑General may enforce any duty in this Act.  The courts may say, I see that, but I would not infer from that statement of what might be called the quotidian uninformative norm that Parliament has evinced an intention that is to be exclusive matter, or that we can be satisfied that that constitutes a scheme which overcomes the, as it were, basal principle which forms equity.  All I am saying is, there may be quite difficult questions in certain cases of that variety.

So, we do not accept just merely an inverse of somebody might enforce it, would be the end of it.  But we are so far beyond that structure ‑ ‑ ‑

EDELMAN J:   But as soon as you have an independent public authority that has enforcement powers ‑ ‑ ‑

MR HUTLEY:   You may have a question.

EDELMAN J:   ‑ ‑ ‑ that would fall within your second argument.

MR HUTLEY:   I do not want to raise it to the point of unnecessary, your Honour, because as I have taken your Honours through the detailed scheme, one would have to – but it would certainly start to raise the issue – I would accept that immediately, your Honour.

GAGELER CJ:   Mr Hutley, can you point to any case in which a court is engaged in this preliminary inquiry into the adequacy of other remedies?

MR HUTLEY:   Your Honour, I am coming to Bateman’s Bay where the Court says – we say – that should be done.  One of the points I am going to make is in all the cases in this Court, there is no case where there was such a scheme in the legislation.  Even in Onus – and we have in the supplementary materials – and your Honours will see from the decision – your Honours will have seen – there is some reference to some sections where people do things, none of them involve curial enforcement.  None of them involved enforcement.

GAGELER CJ:   Going back to a question that Justice Beech‑Jones asked you, what are the criteria for this inquiry?

MR HUTLEY:   The inquiry is whether the court is in a position to conclude that Parliament has developed a scheme for enforcement and thereby evinced an intention as to its adequacy.

GAGELER CJ:   That is the code argument – totally got that.

MR HUTLEY:   No, it is not exactly the same as the code argument.  The code argument, it says, we are intending to exclude. 

GAGELER CJ:   Yes.

MR HUTLEY:   This is:  structurally, the legislation has put forward a scheme which, on its face – and together with surrounding effect – leads to a position where, we say, the court cannot be satisfied that there is inadequacy as to the enforcement provision, because we say, in effect, the predicate for this right is inadequacy.  That is what the legislation says.  It is based in a conclusion of inadequacy.  If one has an extensive code of this variety, we would say the courts cannot be satisfied.

EDELMAN J:   But, on this argument, just to come back to the point, you do not need an extensive code.  All you need, as I understand the argument, is just any public body that can enforce the right, because otherwise one would then be second‑guessing Parliament and saying, well, Parliament says that this is a perfectly adequate method of enforcement, but the court is going to say it is not.

MR HUTLEY:   Your Honour infers from any regime – if I understand what your Honour is putting to me – if there is an independent body, appropriately charged with the enforcement and the protection of the duty, one would infer from that that Parliament has set up a scheme which Parliament considers to be adequate.  That may be an inference which the court would take.  I do not want to say in all circumstances because it may have not set up any particular form – as I have said, I have given my example, the Attorney‑General, et cetera.  All I am saying is, we say that if this principle is rooted in inadequacy, you do not establish inadequacy by just saying, somebody who might have ACF standing is not given standing by the statute, therefore there is inadequacy.  That is the wrong way around. 

That is precisely – and if I can take your Honours to it – what was said by Justices Gaudron, Gummow ad Kirby in Bateman’s Bay.  If your Honours go to – I will give your Honours the citation in a moment – joint book of authorities, volume 4.  Page 865 is the statement, and Bateman’s Bay v Aboriginal Fund is reported in 194 CLR 247.

Your Honours, if we start with paragraph 46, and if your Honours read it, the particular paragraph statement is taken up at the top of page 865, being 266 in the Commonwealth Law Reports, when they go: 

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”. 

Then, if one goes to 48, their Honours pointed out that: 

Upon the true construction –

the statute may give: 

an exhaustive measure of judicial review at the instance –

of identified person.  When that is done, we would say there would be no room for equity to intervene.  Equity would not take the view that the law did not provide adequate means for its enforcement when the law prescribed exhaustively who was to enforce it.  Your Honours, again, know our submissions about the Act.  Over the page at paragraph 49 there is reference to persons who: 

may well have a sufficient special interest.

Then at paragraph 50, their Honours say: 

But it does not follow that such persons alone have standing.  It would be wrong to take this as a starting point.

The starting point is not that you have standing if you have a special interest.  Instead, their Honours then say: 

The first question is why equity . . . would intervene.

In effect, we submit that one starts with investigating the scheme to determine whether there is a basis for intervention, and if there is – that is, supplemental to that provided by the legislation – the characteristic which the courts have adopted for that position is what we have called ACF standing, or sufficient interest standing. 

BEECH-JONES J:   Mr Hutley.  The balance of that paragraph does not suggest that the answer to that question focuses an inquiry on inadequacy.  Or am I wrong? 

MR HUTLEY:   Well, we submit that it has to be read in the context that the whole basis of the inquiry lies in inadequacy.

JAGOT J:   But when you say ACF standing ‑ ‑ ‑ 

MR HUTLEY:   I am using that totally as a shortcut for sufficient interest, your Honour.

JAGOT J:   I know it is a ‑ ‑ ‑ 

MR HUTLEY:   I do not – I mean, I accept it is the sufficient interest standing, I just did not want to say it – we just did not want to say it 100 times.

JAGOT J:   No, but there are two branches.  One is where there is an actual threatened breach where the failure to fulfil the public duty also involves a threatened or actual breach of a private right.  That is not what you are talking about?

MR HUTLEY:   No, I am talking about that aspect of it which is said to be the extension of it.  That is the error in which we are dealing.  The standing – ACF stands for the proposition that one has gone beyond infringement of a private right.  One is dealing with affectation at a different level of inquiry.  That is, by reason of what is called “sufficient interest”.

JAGOT J:   Sufficient interest.  So, when you come back though to – sorry to keep harping on – 69ZA(2)(d) ‑ ‑ ‑ 

MR HUTLEY:   I am sorry, can I just turn that over, if I could, your Honour.

JAGOT J:   Section 69ZA(2)(d) in the Forestry Act, I know you have been through this before, but:

if the breach relates to forestry operates to which an integrated forestry operations approval –

So, I mean in ‑ ‑ ‑ 

MR HUTLEY:   I am sorry, would your Honour just bear with me for one second while I turn it up.

JAGOT J:   Yes, sure, sure, sorry.

MR HUTLEY:   Yes, your Honour, (2)(d).

JAGOT J:   So:

if the breach relates to forestry operations to which an integrated forestry operations approval applies.

That breach could both involve a threatened effect on a private right and a triggering of a sufficient interest – sort of both limbs of when someone might have standing to enforce ‑ ‑ ‑ 

MR HUTLEY:   I.e., a direct interference with a private right ‑ ‑ ‑ 

JAGOT J:   Yes.

MR HUTLEY:   ‑ ‑ ‑ and a sufficient interest by reason of something else.

JAGOT J:   Yes.  I am just trying to work out how you get to it is the second bit only that is the necessary intendment as opposed to the first bit, because if your argument is right ‑ ‑ ‑ 

MR HUTLEY:   Well, I have made my submission about 69ZA(1)(b).  So, I have made my submission.

JAGOT J:   I know, but your point is whether or not any right of a person has been infringed, which you would say that is contemplating that, even if a right is infringed, if it is a breach relating to a forestry operation to which an IFOA applies, you are out.

MR HUTLEY:   Yes, that is one view of the construction of 69ZA(1)(b), and we had the debate about whether it is or not.

JAGOT J:   No, I understand that, but that is – again, maybe I am struggling with this – that is a big exclusion.  You are trying ‑ ‑ ‑

MR HUTLEY:   But I am not seeking to exclude what I called the first limb of ‑ ‑ ‑

JAGOT J:   But what emerges to say the necessary intendment applies to the second sufficient interest limb and not the first limb.

MR HUTLEY:   If it was necessary to say, we would say it is the first limb because what – I have taken your Honours to the second reading speech, I am not going back over it again, unless your Honour wishes to ‑ ‑ ‑

JAGOT J:   No, no, I do not want ‑ ‑ ‑

MR HUTLEY:   It is said to be no third parties are going to interfere with this.  Third parties are not to interfere with this structure.

JAGOT J:   Even if there is a threatened infringement of their private – I mean I think that is where your argument takes you.  When you are saying “ACF standing”, I think you might mean not just sufficient – I know you want it to mean sufficient interest – I cannot see a discrimination there between the two.  So, you would actually be wiping out – I mean, common law standing might be a better way of putting it.

MR HUTLEY:   Your Honour, I do not think we have to go that far.  But if we do have to go that far, then we have gone that far, because all these cases were dealing on the basis that an indirect infringement of a private right was a different question of standing to what might be called the inadequacy‑based standing in equity.  We submit what is called the two limbs is a different inquiry as I understand the law, because then one in effect has an infringement of a private right and one can seek vindication of that infringement.

The whole exercise in ACF was dealing with not an infringement of a private right and they made that – and our onus, because the first element of all those cases, or at least an onus, was an attempt to establish that you did have a private right.  And they said that is not the case, and there was no debate in those cases; if you had an infringement of a private right, you would be able to vindicate it.  We submit there is not a necessary allision of the two if one has a private right, but there is no suggestion in this case that there is any private right interview.

JAGOT J:   I accept that.  This is purely an issue of construction on necessary intendment.  I am not ‑ ‑ ‑

MR HUTLEY:   Quite.  We do not accept that one entails the other.  What we do say, though, if it did – depending on the construction 69ZA, that may well be the case with respect to actual infringements of private rights.

BEECH-JONES J:   Mr Hutley, when you have a moment, I want to ask you a question about that, but I do not want to take you off your argument.

MR HUTLEY:   No, no, your Honour.

BEECH-JONES J:   With 69ZA(1)(b), can you open page 578 of volume 3, which is the original section 123 of the EPA Act with open standing.

MR HUTLEY:   I am sorry your Honour, volume 3.  The page again, with respect.

BEECH-JONES J:   Page 578 which has 123(1) in it.

MR HUTLEY:   Yes.

BEECH-JONES J:   You see it has the words at the end:

Whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

MR HUTLEY:   Yes.

BEECH-JONES J:   Is that not the origin of what we are looking at so that what (1)(b) is simply describing is a provision?  It is not looking at the individual right.  So, it is saying a provision of the Act that gives any person a right to institute proceedings whether or not any right of the person has been or may be infringed.  It is describing the provision.  That is, the original one it was concerned with.

MR HUTLEY:   Your Honour, it does not refer to 123 in 69ZA.

BEECH-JONES J:   But that was the one – you said that you took us to the origins and that was the very one you are trying to get rid of.

MR HUTLEY:   No, I am not saying – but it is expressed in the general language to deal with any such circumstances.  But if the construction is, as your Honour indicates, as I said, it does not matter from our point of view.

BEECH-JONES J:   I see.

MR HUTLEY:   All we are saying is that this scheme – anyway, we will be repeating it ‑ ‑ ‑

BEECH-JONES J:   It is comprehensive of the code and the inaccuracy.

MR HUTLEY:   If the construction is that interferences with actual rights might be in a different question, that would have to be for another day to be discussed because we submit that the jurisdiction to deal with what we have called ACF rights – that is, of sufficient interest – is a different jurisdiction to interference with a private right.

The inadequacy of equity was not with respect to the interference with private rights, because one could enforce private rights, subject to the position of the Crown from time to time.  You could, in effect, sue for trespass by an officer, you could sue for all manner of things, if you were actually interfering with one’s own land.  So, the same inadequacy did not exist.  This inadequacy was, in effect, inchoate public duties which did not interfere with what could properly be called a “right”, which led to the whole debate in ACF, and following.  So, that is our position.

GAGELER CJ:   Does that complete your submissions?

MR HUTLEY:   I have got very close, your Honour.

EDELMAN J:   You may, over lunchtime, want to have a look – I think, in Mallonland I addressed the very small gap of circumstances in which even private rights might not have that sufficient enforceability, for various reasons, where the law creates rights for third parties to enforce what is, in effect, a plaintiff’s private right.

MR HUTLEY:   May your Honour please.  Can I look at it, your Honour, but I do not think that cuts across anything that I ‑ ‑ ‑

EDELMAN J:   It just means that the first limb and the second limb are not quite as different as might appear.

MR HUTLEY:   May your Honour please.  I think we have taken your Honours – can I just refer to page 3 of the supplementary bundle, your Honour will the legislation in Onus as it was as at the date of the Act, and there, there was no provision for curial enforcement of any of the provisions, they were purely of an administrative variety.  I think we have said enough about the jurisdictional nature of these questions.

I have not really dealt with anything on the concept that one is dealing with what might be called a fundamental right, which is one element of it.  Now, in this regard, we would say – we would, with respect, say the expression by your Honours Justice Edelman, Steward and Gleeson in Hurt (2024) 98 ALJR 485 at [106] to [107] that says that, in effect there can be a scale of fundamentality. We would say, if one is – which may speak to the clarity with which one has to act, we say with clarity, this is clear enough, this right, if it be a right, is a relatively recent invention. Secondly, it exists for a solely instrumental ‑ ‑ ‑

GAGELER CJ:   For 120 years or so?

MR HUTLEY:   Well, that depends upon what view you take of what happened in the 1970s in this country.  But, anyway ‑ ‑ ‑ 

GAGELER CJ:   Yes.

MR HUTLEY:   ‑ ‑ ‑ I am not going to – it exists for an instrumental purpose, not, as it were, an end to itself.  The instrumental purpose is to ensure due observance of the law.  Because it exists for that purpose, the necessity for its existence and importance depends upon the varying circumstances and, in particular, the nature and extent of the mechanisms to ensure due observance of the law.

Then, again, we come around to the same situation.  The fact that there is a scheme of the pervasiveness with which we are dealing with puts its status as a right of lesser significance, in the way in some ways it is put, and therefore, in effect, that which would be needed to express a contrary intention may be, in effect, a less demanding intimation of parliamentary intention.  We say that would apply, in these circumstances, in the scheme with which we are dealing.

But in any event, whatever degree of clarity is needed, I have taken your Honours through it.  Parliament has said, in the most clarion of terms, that there are not to be third parties, and we say that should be the end of it.  I think that suffices.

Other than that, we have said everything we can either in writing or in the course of debate.

GAGELER CJ:   Thank you.  We will take the luncheon adjournment.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ:   Mr Korman.

MR KORMAN:   Your Honours, today I intend to establish three propositions:  firstly, that the appellant’s primary case – that is, standing to seek injunctive or declaratory relief – depends on what the statute vesting jurisdiction expressly or implicitly requires to be established inexorably leads to the conclusion that the respondent has standing to bring the proceeding; secondly, that the Court of Appeal made no error in finding that section 69ZA, SB(1) and 13.14A all mean exactly what they say; and, thirdly, that the majority of the Court of Appeal also made no error in holding that the general law of standing attracts the principle of legality.  These three issues form the framework of my submissions.

The appellant describes as its case, or its primary case, the proposition that the question of which classes of persons have standing turns on the construction of the statute conferring jurisdiction on the Court. 
The starting point for analysis of that argument is the passage relied upon by the appellant for the foundation of this part of its case, the final sentence of paragraph 56 of Hobart, which it cites at paragraph 42 of the submissions.  That sentence is:

What, if anything, a person must establish to have a right to seek a particular order . . . in the exercise of a jurisdiction vested in it by a Commonwealth law –

for our purposes, it is more general than that:

depends on what, if anything, the Commonwealth law vesting that jurisdiction in that court expressly or implicitly requires to be established.

The point I wanted to make is that statutory provisions that confer jurisdiction will often be brief and may not expressly require that anything at all needs to be established – section 23 of the Supreme Court Act (NSW) simply provides that – confers on the court:

all jurisdiction which may be necessary for the administration of justice in New South Wales.

But the implicit requirements, however, will often be quite specific, and we saw in paragraph 57 of Hobart a discussion that:

standing to seek –

a common law:

remedy is implicit in the definition of the elements of the cause of action.

So, for example, the:

doctrines of privity and consideration –

in many cases will confer standing on the parties to a contract and deny it to strangers.  The implicit requirements for declaratory relief are discussed in paragraphs 63 to 68 of that case, and I will just go to paragraph 65 of Hobart, which is at page 210, I think.

EDELMAN J:   You are not suggesting that paragraph 56 has frozen the rules of standing in time as a result of any statutory presupposition of the existence of those rules?

MR KORMAN:   No.

EDELMAN J:   They have been developing for 100 years.

MR KORMAN:   That is true.  The proposition that I will be developing later is that, in reality, whether one looks at standing as a common law rule – and this was a point made in Kioa, in a different context – but whether one looks at standing as a common law principle or whether one looks at it as a statutory requirement of the law that vests jurisdiction in a court really does not make a difference, at the end of the day.  You are looking at the same thing in different ways.

EDELMAN J:   Provided that the statutory requirement or statutory presupposition is one that the principle can evolve from time to time.

MR KORMAN:   That is right.  Perhaps stated more generally, what is implicit in the law that confers jurisdiction is that the requirements for standing, arising from the particular matter that has been brought – however those requirements arise – are met, so, that is an evolving concept.  Just one minute, your Honours.

I was going to go to Hobart, paragraph 65.  The judgment there discusses the requirements for declaratory relief.  At the beginning of paragraph 65, there is a discussion of the various ways in which the evolving common law has defined the requirement for standing to seek such relief:

“sufficient interest”, a “sufficient material interest”, a “special interest” or a “real interest” –

And one sees in that discussion a merging, perhaps, between the requirements for standing to seek injunctive or declaratory relief in circumstances where a plaintiff has been particularly affected by the breach of a statute that affects the public interest.  So, the implicit requirement is that the statute that confers jurisdiction on the court requires that a sufficient interest be demonstrated by a plaintiff that is seeking relief.

Thus, contrary to what was stated in the appellant’s submissions, the statute that confers the relevant jurisdiction is never silent about whether a plaintiff with a special interest has standing to seek equitable and declaratory relief, because that is part of the implicit requirements of that statute.  Such a plaintiff will ordinarily be seeking to enforce a statutory scheme, and the alleged breach of that scheme must specially affect the plaintiff if it is to have standing.  That special impact is what grounds the plaintiff’s standing to seek an injunction or declaration.

But, excepting two respects that I will describe shortly, there is no logical connection between the content of the statute conferring jurisdiction and the requirements of the statute that is to be enforced.  The fact that a particular statute confers standing on certain person to enforce its norms has no bearing at all on the question of whether a court will recognise that a prospective plaintiff with a special interest in the subject matter of the proceeding has standing.

To use the appellant’s language, a statute’s conferring of standing on a facially suitable class of persons does not detract in any way from the legitimacy of drawing a standardised inference that the law that confers jurisdiction on a court of equity implicitly confers standing on any plaintiff with an equity to seek an equitable remedy.

Another way of looking at this logical disconnect is to recognise that plaintiffs bringing an action under common law standing do so precisely because the statute they seek to enforce does not confer standing on them.  They seek equitable or declaratory relief under the general jurisdiction of a court to grant such relief, not under any particular statute.  The law that vests jurisdiction in a court to hear the plaintiff’s action is not the law the plaintiff is seeking to enforce.

The law that is being enforced does have relevance to the question of standing for two reasons.  Firstly, it is relevant to the question of whether the plaintiff is specially affected by its breach so as to be able to establish the requisite special interest.  And secondly, the statute sought to be enforced may abrogate the right of persons specially affected by its breach to bring proceedings.

Those two matters constituted the focus of the Court of Appeal’s decision.  The Court of Appeal found that, contrary to the decision of the trial judge, the respondent had sufficient interest in obtaining injunctive or declaratory relief that was sought, because it was specially affected by the alleged breach of the Forestry Act.  And the Court of Appeal also carefully engaged in the task of construing the relevant sections of the Forestry Act and Biodiversity Conservation Act and found that neither abrogated common law standing.

Having set out the implication of the appellant’s primary case, it is convenient now to construe the statute conferring jurisdiction on the court in this case to determine whether it confers standing on the respondent.  Since the action was brough in the Land and Environment Court, the appellant’s methodology requires that we construe the relevant provisions of the Land and Environment Court Act.

So, I will turn to that Act.  If we start at section 5(1), that section constitutes the Land and Environment Court as a superior court of record.  Then Part 3 governs the jurisdiction of the court and section 16(1) provides that it has:

the jurisdiction vested in it by or under this or any other Act –

including the Land and Environment Court Act.  The jurisdictions are:

divided into 8 classes, as is provided in –

Division 1 of Part 3, and section 20 concerns Class 4.  Section 20(1) provides the Court with:

jurisdiction . . . to hear and dispose of –

a wide range of enactments.  But 20(1)(e) is different, in that it provides for:

proceedings referred to in subsection (2) –

and subsection (2) provides the court with:

the same civil jurisdiction as the Supreme Court would, but for section 71.

We have heard this morning the appellant accepts that the respondent’s case was brought under section 20(1)(e), which brings in section (2).  The Court of Appeal referred to section (2)(a), but (2)(c) is probably invoked as well.

BEECH-JONES J:   Can I just ask, is the obligation what I raised with Mr Hutley?  That is, the obligation imposed by that section of the Forestry Act that makes it an offence not to comply?

MR KORMAN:   Yes, your Honour asked that this morning.

BEECH-JONES J:   Yes.

MR KORMAN:   Yes, the plaintiff’s case is that the starting point is that provision.

BEECH-JONES J:   Section 69M ‑ ‑ ‑

MR KORMAN:   However, it could also be – when the case was brought, that matter did not arise, under which power it is brought.  I think 69M, which requires the making of IFOAs is also relevant – or the application of the IFOAs – I will just go there.

BEECH-JONES J:   I do not mean to take you off your argument.

MR KORMAN:   No, no, that is fine, your Honour.

BEECH-JONES J:   I am just trying to find out, just so I understand, what is the right, obligation or duty we are talking about.

MR KORMAN:   So, 69M provides that:

Approval for the carrying out of forestry operations to which this Part applies may be granted under –

the Act. The IFOA sets out the conditions under which logging is permitted to be carried out. So that, in one sense a breach of an IFOA is an ultra vires action by the Forestry Corporation, because it is not authorised. And section 69SA(1) is the other provision your Honour asked me about, which says that a contravention of a requirement of an integrated forestry operations approval is an offence.

EDELMAN J:   So, your submission is that 69M creates both a civil and a criminal obligation.  It certainly creates a criminal obligation, because of 69SA.

MR KORMAN:   No, the criminal obligation is created – I should say that the action brought by my client, even though it involved contravention of a provision that provides for an offence, was not seeking to enforce the criminal law.  It was not seeking an injunction to enforce the criminal law.  It was seeking an injunction to enforce a statutory scheme that affected its interests, that is, the lawful logging of forests in New South Wales.  The fact that it happens to be an offence is a secondary matter, one might say, to the case that was brought by my client.

GAGELER CJ:   I think it was conceded by Mr Hutley that the second sentence of section 69M(2) means that it is implicit in the statutory scheme that the terms of the approval create binding obligations.  Is this a point in your favour?

MR KORMAN:   Yes, and I should also say that 69 – I think, at the beginning of the Forestry Act – is a provision that empowers the Forestry Corporation to carry out forestry operations on Crown land and State forests.  It does not specifically couch it in exclusive language, but I think that is tied in with the whole scheme.

EDELMAN J:   To come back, then, to my point – you say that 69M(2) creates not just a criminal obligation which is enforceable under 69SA, but also a separate and independent civil obligation.

MR KORMAN:   That is right, your Honour, to carry out forestry in accordance with an IFOA Act.  Now, as I have just discussed, implicit in the Land and Environment Court’s jurisdiction to grant equitable and declaratory relief, which was inherited from the Supreme Court, is the requirement that the prospective plaintiff establishes sufficient interest.  That is an implicit requirement of the jurisdiction to grant equitable and declaratory relief, and in this case the sufficient interest is one that concords with ACF and the subsequent case law.

The Court of Appeal held – and that is not a subject of appeal – that the respondent was indeed specially affected by the alleged breach of the statutory scheme and, therefore, satisfied the test.  It will be seen that neither the Biodiversity Conservation Act nor the Forestry Act form any part of the legislation that confers jurisdiction on the Land and Environment Court to grant equitable and declaratory relief to plaintiffs who demonstrate a sufficient interest obtaining that relief.  For that reason, it is inevitable that having satisfied the requirements, satisfied the sufficient special interest test, the respondent had standing to bring its case.

But before leaving this topic, in case this issue is raised, I should say a word about section 20(1)(cga).  That is the provision that directly establishes jurisdiction to bring proceedings under Division 2 of Part 13 and sections 13.22 and 13.27 of the Biodiversity Conservation Act.  Now, an argument might be made that that provision, read together with the relevant parts of the Biodiversity Conservation Act, that the standing granted, or conferred, on the EPA is relevant to the construction of section 20(1)(cga).  But that section has no relevance to the case that is brought by the Respondent.

Neither the Biodiversity Conservation Act nor the Forestry Act confer jurisdiction on any court to grant an equitable or declaratory relief at the request of a plaintiff with a special interest.  So, the respondent’s standing did not arise under section 13.14A of the Act.  It has standing because it satisfied the general law test for a sufficient interest in the remedies it sought, and I should say that, if not for section 21(e) and section 71(1) of the Land and Environment Court Act – and I did not take the Court to section 71(1), but I probably should because it is important.  I will just go to 71(1).  That provides that:

Subject to section 58 –

and section 58 is concerned with appeals:

proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.

So, the jurisdiction to hear the kind of action brought by my client has been transferred, one might say, from the Supreme Court to the Land and Environment Court.  The appellant does not contend that any limits that apply in 20(1)(cga) ought to be transferred to section 21(e).  If it did contend that, it would be met with two obstacles.  One is that the effect of narrowing 21(e) would be that the respondent ought to have brought its case in the Supreme Court rather than in the Land and Environment Court.  The other issue is that, as your Honour Chief Justice Gageler raised, clear words are required to cut down the jurisdiction of a court.

GAGELER CJ:   If you accept that proposition, why do we need to be concerned with the principle of legality?

MR KORMAN:   Yes, I was going to make that point.  It is actually quite an interesting issue because, on the one hand, the authorities suggest that whether one looks at – in that case it was procedural fairness, but I think it applies equally here.  Whether one looks at it as a requirement in legislation or whether one looks at it as a freestanding principle of common law, it makes no difference.

In this case, it does make a difference because, if one looks at general law standing from the lens that the appellant has brought its case – that is, that one needs to look at the law that confers jurisdiction on the court – then, yes, we do not need to go there.  That jurisdiction cannot be cut down without clear words.  But if one takes the more conventional approach in the authorities, when one just looks at it as a freestanding common law principle, then ‑ ‑ ‑

GAGELER CJ:   It cannot really be.  I mean, it is tied to the exercise of jurisdiction by a court.  I do not know what you mean by a freestanding common law principle in this context. 

MR KORMAN:   On your case – yes, your Honour.

GAGELER CJ:   That is not my case, I should say.

MR KORMAN:   I am not going to look a gift horse in the mouth.  Yes, your Honour, from that perspective there is no reason to go there. 

BEECH-JONES J:   To put it this way, there might be a difference if you were restricting people’s ability to go to court to complain they were unlawfully imprisoned, compared to whether you were restricting people’s ability to go to court to complain about a breach of a statutory provision such as this, or provision of the Corporations Act, or something of that kind, is there not?  That is, the common law right is bound up with the right that is ultimately being protected, not the fact that you can go to court and complain about it. 

MR KORMAN:   Yes, your Honour.  In this particular case, given the – in the case of general law standing, given that it relates to standing, it is inextricable from the question of jurisdiction of the court to hear the matter.  So, yes, your Honour, there perhaps there is no reason to go there, but I am in the Court’s hands when I get to that part of my submissions whether I do or not.  I take your point, your Honour.

EDELMAN J:   One still needs to ask, if it is a question of the jurisdiction of the court, what are the rules in truly open‑textured jurisdictional provision which tell you from the so‑called common law what the jurisdiction is going to be – what the standing is going to be.  It may be that if you are right that the principles of legality do apply – but that sounds a lot like Mr Hutley’s submission that it is a question of adequacy of remedies because if the remedy is entirely inadequate, the legality of the system itself requires that there be some means of enforcing a public duty.  Otherwise, I am not sure what the role of principle of legality would be.

MR KORMAN:   If I understand you correctly, your Honour, what you are saying is, what is the role of the principle of legality if one has a law that is providing adequate remedies – why do we need this extra protection?  Is that what your Honour is saying.

EDELMAN J:   That may be one way of putting it.

MR KORMAN:   Your Honour, the reason why the respondent says the principle of legality is important does not arise from the question of the adequacy of the remedy – not the adequacy of the remedy, the adequacy of the enforcement provisions.  Let me just take a step back.  If the law provided adequate means for a plaintiff to bring an action, in that case, there would be no need to resort to general law standing.

We are talking about a situation where the law does not provide an affected plaintiff with the means of approaching the court directly to deal with the issue.  The question then is what Mr Hutley said, what if the law was to provide – in a circumstance where the law provides adequate enforcement provisions, the issue is that whatever the enforcement provisions of the law, the general law standing is there to provide persons who are affected by unlawful conduct – that is, who are affected by a circumstance where those provisions have not been sufficient – so, in this case, if the EPA is afforded with a wide range of weapons but, nevertheless, there is unlawful forestry operations being conducted, that is what triggers the right of the specially affected plaintiff to seek relief from the court.

EDELMAN J:   At least on one view, that turns the whole of the law of standing on its head, because the law of standing, traditionally, has relied upon the sufficient interest or a sufficiently special interest, not as an interest which itself needs protection, but as a way of enforcing a public duty.

MR KORMAN:   That is right.

EDELMAN J:   It is not for the plaintiff to try to protect their own rights by this public action.

MR KORMAN:   Perhaps I expressed myself incorrectly.  What I was getting at, was that when there is an unlawful infringed on the public interest, the general law standing provides an avenue whereby the public interest can be vindicated.  The plaintiff that is bringing the case is just the messenger so that the public interest is vindicated, and that, I think we put in our submissions, is the source of the importance of general law standing.

I suppose the point I was making just before was this:  the touchstone is whether a public interest is impacted by unlawful conduct.  If it is impacted, it does not matter what provisions the statute had to prevent that unlawful conduct occurring.  The fact is, it is the occurrence of the unlawful conduct.  If the protective mechanisms in the statute are hermetic, we are never going to have unlawful conduct.  The whole point is that the unlawful interference with the public interest is what merits the extra protection of the principle of legality.  That is an issue that might arise whatever the protective mechanisms are in a particular statute.

Your Honour, I will just briefly touch on the source of the error in the appellant’s case in the primary case.  As I have made the point that the statute conferring jurisdiction on the court and the statutory scheme being enforced are separate and distinct, but it is the conflation of these two statutes which lies at the source of the error in the appellant’s case.

I will just go to the appellant’s submissions and what we will see is that the way its case is put wavers between the reliance on the statute conferring jurisdiction and the statute being breached.  At paragraph 6 of the summary of argument ‑ ‑ ‑ 

BEECH‑JONES J:   Is that your summary or theirs?

MR KORMAN:   No, the appellant’s summary.

STEWARD J:   Is this the outline of oral argument?

MR KORMAN:   No, not the summary of argument, the submissions – sorry, your Honour.

STEWARD J:   Thank you.

MR KORMAN:   Paragraph 6 of the submission commences with the proposition that:

The correct analysis starts with the statutory scheme, construes that scheme in a conventional way, and asks:  what class of persons did Parliament intend to have a right to institute proceedings of that relevant kind?

Now this reference here, in paragraph 6, is clearly a reference to the statutory scheme.  Then we move on, in paragraph 43, and we see that the reference now is to the law that confers jurisdiction on the courts, and the appellant says – this is about three lines down, in paragraph 43:

Thus, as this Court has said, the question is whether a “statute . . . enables an individual who satisfies the ‘special interest’ requirement to seek injunctive or declaratory relief”.

One would have thought that that is precisely a description of the respondent.  But then the appellant moves on and says:

at least where – as in this case – a statutory scheme expressly addresses the status of standing –

so that we have move back to the statutory scheme that is being enforced.

GAGELER CJ:   Mr Korman, Mr Hutley spent a couple of hours refining his submissions this morning.  Now, this may not be an adequate summary, but as I understand his case, he places a great deal of weight on section 69ZA of the Forestry Act and he seems to say at least two things about that.  One, he has a very particular reading of subsection (1)(b) and, more generally, he says that if you look at this provision in context it is the three classes of person in subsection (3) who should be understood to have the sole capacity to bring proceedings of a civil nature to vindicate the sort of public duty that you are seeking to vindicate in this case.  He has one other argument, but I leave that to one side.

MR KORMAN:   Yes, I will address that now, your Honour.

GAGELER CJ:   Yes.

MR KORMAN:   Yes, your Honour, just one moment.  Your Honour, in relation to the construction – and I think this issue of 69ZA(3) really turns on 69ZA(3)(1)(b), and that is – I will just get it up – what is the meaning of the words:

a provision of an Act that gives any person a right to institute proceedings –

et cetera.  Does that word “any” mean “any” in the sense of any individual person, or is it should this be construed in a composite fashion as referring to open standing provisions?  And the reasons why it is apparent that this provision ought to be construed as referring to open standing provisions are these.

First of all, Mr Hutley took the Court through the history of the Act and made it quite plain that in the appellant’s view, the purpose of the predecessor of 69ZA(3) was to disapply the preceding provisions. The preceding provisions were section 123 of the Environmental Planning and Assessment Act. If one looks at that Division – and I see it is in volume 3 on page 604 – no. I will just find section 123.

GAGELER CJ:   We were taken to it this morning.

MR KORMAN: I should say – and your Honours no doubt will look at it later – the wording of section 123 is almost word for identical. Here we are – the wording of 123 states:

Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

We see that the wording of 69ZA(1)(b) is almost identical.  So, the first point that I would make is that the historical context of this provision is an argument in favour for reading it as disapplying open standing provisions that have been worded that way.

The second point I would make about it – and that was touched on to some extent by the Court this morning – is that the ramifications of the construction contended for by the appellant are extreme.  A landowner, for example – and granted that the scope of the provision is restricted to breaches of IOFAs and related actions, but a breach of an IFOA can have far‑reaching consequences, so that if we found, for example, that a neighbouring private landowner’s assets or land were harmed by the actions of the appellant, that landowner would have no recourse at all.

The EPA – even if one was to make the outlandish assumption that the EPA could look after the landowner’s interests – it only has the functions conferred by statute.  The landowner could not even bring a case in tort, because the law conferring jurisdiction on the court to hear that case has been ousted.  So, there would be no grounds for any private person to bring a case to defend their private interests.  It goes further than that, that unless ‑ ‑ ‑

EDELMAN J:   So, the tort claim would be ousted only if there were a defence which relied upon an IFOA under subsection (c), would it not?  Otherwise, how would the tort claim the be excluded?

MR KORMAN:   I was just applying the understanding of the law conferring jurisdiction from Hobart, where it is said that one must have regard to the implicit requirements of the law, it would apply there.  But this is by way of an example.  I should say that even to put the case more mildly, any statutory cause of action that a private landowner might have in order to restore its rights would be wiped out.

Further than that, any authority – unless the statute provided that the Minister can take prosecutorial action – municipal authorities, fire authorities, all sorts of situations where, as her Honour Justice Jagot pointed out, there are repercussions of a breach of an IFOA would be ruled out.  Thirdly, effectively, this is a privative clause – that is, it would seem that it also prevents – given that “any person” – the only action that can be brought is by the EPA, that judicial review is also abrogated by this provision.

STEWARD J:   Can I ask you a question, Mr Korman.  Assume for the moment that your construction of 169ZA(1)(b) is correct and that all that Parliament has done expressly is to abolish statutory open standing rights.

MR KORMAN:   Yes.

STEWARD J:   Having regard to the legislative history that Mr Hutley took us through and the change made at the end of the 1980s, or 1990s, or whatever it was, why would it enhance that scheme for Parliament to have wanted private individuals to have the right to enforce public rights associated with an IFOA?

So, leaving aside a private individual enforcing private rights, but a private individual or organisation like your client seeking to enforce public rights in circumstances where Parliament has abolished any recourse to open standing provisions and extrinsic materials express themselves in ways in which it is said that Parliament wanted to eliminate all third party challenges to IFOAs.  How does your argument, which says that Parliament preserved what I will call ACF standing, how does that enhance that statutory scheme?

MR KORMAN:   Yes.  Well, I will get to the second reading speech in a moment.  If we look at the legislative history, we see a parliamentary intention to streamline the previous process, to combine all the various requirements that were set out in a variety of Acts into a single IFOA‑based regime, and to produce a more streamlined and efficient method of approving forestry operations.  That, in itself, if we do not go to the second reading speech, does not necessarily lead to the conclusion that Parliament also wanted to deprive persons affected by unlawful conduct of the agency from the right of bringing a case.  But I will deal now with the second reading speech.

STEWARD J:   I was just going to say, I think part of Mr Hutley’s argument was that there was a trade‑off when the original Forestry Act was enacted, namely, that the EPA would be given, together with the other two entities, effectively, exclusive rights of enforcement.  Now, the public would have their say at the earlier stage, when the IFOA is being promulgated, and that is the opportunity for the public to participate.  Do you contend that that is the wrong analysis?

MR KORMAN:   Yes.  Well, I dispute – I do not dispute the general notion of a trade‑off, and I do not dispute that aspect of it, but the question that arises is:  where was the balance struck?  So, true enough, Parliament abrogated previous open standing rights, so, it restricted the universe of people who could bring actions.  The question is, did Parliament intend to completely eliminate all rights, which included the abrogation of fundamental, general law standing?  Did Parliament intend to go that far, or was Parliament content with the measure of abrogating open standing provisions?  My friend relies on the second reading speech to say that the intention was a more general abolition.

STEWARD J:   I think what it comes down to, then, is you rely just on the express words of the sections and that is where the line is drawn, assuming you are right in the way you interpret (1)(b), whereas Mr Hutley has to rely – assuming you are right on (1)(b) – on some kind of necessary implication from the statutory scheme.

MR KORMAN:   Yes.  We would rely on the words of the text, we would rely on the express statement of the objects of the Act – and this is relevant to the second reading speech I will get to in a minute – and we would, yes, rely on the importance of common law standing, which raises the bar for Mr Hutley in terms of the explicit nature of the abrogation that is required.

STEWARD J:   All right, thank you.

MR KORMAN:   In relation to the second reading speech ‑ ‑ ‑

GAGELER CJ:   What is it about the purpose of the Act you are talking about?

MR KORMAN:   Sorry, your Honour?

GAGELER CJ:   You said something about the purpose of the Act and the objects of the Act.

MR KORMAN:   Yes, the purpose of the Act is set out in 69L.  Mr Hutley took the Court there, but I will go there as well.  I will go there first, and then we will go to the second reading speech.  Section 69L sets out a twofold purpose and, in my submission, this twofold purpose captures exactly what your Honour Justice Steward was talking about with relation to the trade-off.

The twofold purpose is that on the one hand, if we go to (1)(b) first, there is the integration of the regulatory regimes.  That integration involved a desire for streamlining and greater efficiency, but on the other hand, there is a recognition of the importance of “ecologically sustainable forest management”.  We have two potentially conflicting objects here, and if we go the principles of ecologically sustainable forest management, we see in (2)(b):

ensuring public participation, provision of information, accountability and transparency –

Mr Hutley took the Court to the provisions that relate to public participation in the creation of an IFOA, but that is not exhausted by this objective, because if we go back to (1)(a), (1)(a) states that the purpose is:

the carrying out of those forestry operations –

it is not merely the planning of the forestry operations that needs to be subject to accountability, it is the carrying out of those operations which the express purpose of the Act states must be conducted, among other things, with accountability, and although public participation is not the correct way to describe a plaintiff with a special interest that is bringing a proceeding, this is not some kind of “participation”, but accountability does directly go the heart with one of the goals of the Act.

The Act is striving, in my submission, to balance the need for accountability, balance everything that is in the principles of ecologically sustainable forest management, because one can assume that the breaches that are going to attract the interests of public interest litigants are precisely breaches that affect ecologically sustainable forestry management.  So, the 2018 Act did not close its eyes to these issues.  In my submission, it attempted to reach the correct balance by preserving common law standing but eliminating open standing.

But when one comes to the second reading speech, it is important to keep track of the fact that the Forestry and National Park Estate Act, even though there was a transposition of sections of that Act to the Forestry Act, it is not a mirror image – the latter Act is not a mirror image of the former.  And particularly relevant for us is if we look at the stated purposes of the Forestry and National Park Estate Act – I will just find them.  Sorry, your Honours.  I will just be a moment. 

STEWARD J:   Are you taking us to the second reading speech?

MR KORMAN:   Yes, we can go there, but no, where I am wanting to go to, just before we go there, is the objects of the Act that the second reading speech was supporting.

BEECH-JONES J:   Is it the FNP Act, as it were?

MR KORMAN:   That is right.

BEECH-JONES J:   I think that is tab 14 of volume 3.

MR KORMAN:   Yes, page 602 has the purpose.  What we see in the purpose of that Act, which was the subject of the second reading speech, is solely the integration of the regulatory regimes.  So, it provides “a framework” for an irrelevant matter in (a), but it:

integrates the regulatory regimes –

There is no mention in these purposes of “ecologically sustainable forest management”, there is no mention of the requirement for accountability.  That was introduced in the 2018 Act.  I think that is at 615 of volume 3, the Amending Act, and we see that this has introduced into the 2018 Act the principles of ecologically sustainable forest management.  The second reading speech for that Act is very sparse in relation to what it has to say.  That is on page 1618 of volume 7.

STEWARD J:   Tab 40?

MR KORMAN:   It is tab 40.  So, here we see that the only comment is that the Act:

balances economic benefits with community expectations.  It also provides for increased regulatory certainty, enhanced transparency and greater enforceability.

So, really that is the ‑ ‑ ‑ 

BEECH‑JONES J:   Where did you read from, then?

MR KORMAN:   I am reading from page 1618, third paragraph down.

BEECH‑JONES J:   Thank you.

MR KORMAN:   I think Mr Hutley took the Court to this as well.  So, that is really – all that we have from the relevant second reading speech is this comment.  So, yes, in my submission, your Honour, the extrinsic materials provide sparse support for the notion that there was a parliamentary intention to abrogate a fundamental common law principle, whereas the plain text, the purpose as set out, of the Act support a reading that it was preserved.

BEECH-JONES J:   I think the high point of Mr Hutley’s submissions on this is at page 1750.

STEWARD J:   And, in particular, the final paragraph in the left‑hand column.

MR KORMAN:   Yes, 1750.

BEECH-JONES J:   Right at the bottom of the page.

MR KORMAN:   In the left‑hand column.  Yes, your Honour.  So, as I say, first of all, that was the Minister speaking to an Act that did not have, as one of its objects, accountability.  Secondly, if one reads this, what the Minister is saying is that the clause:

removes the rights of third parties to bring proceedings –

There is ambiguity of what that means.  In other words, there is no question that it does remove the rights of certain third parties to bring proceedings, and if the Minister should be understood to have been saying it removes the rights of all third parties, in my submission, I would say the same thing as Ex parte Beane, that the Minister was wrong.

STEWARD J:   Can I ask you this?  You said that the original predecessor Act did not have accountability, but it did, really, and the Minister says it did:

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.

MR KORMAN:   Sorry, your Honour, where is your Honour reading?

STEWARD J:   That is right at the bottom of 1750, in that same paragraph, final sentence.  The Minister says the agencies will have capacity to ensure accountability.

MR KORMAN:   Yes.

STEWARD J:   So, both Acts had accountability.

MR KORMAN:   That is true that they both had accountability in terms of the fact that there is somebody who is enforcing the Act.  But ‑ ‑ ‑

STEWARD J:   You really have to say this is an Ex parte Beane case and this is just wrong.

MR KORMAN:   Yes, yes, I would have to say that.  But I would also go to what the Court of Appeal said at 115, Justice Griffiths.  So, his Honour’s position was that the second reading speech does not directly address open standing and then his Honour says what your Honour has just said – it is Ex parte Beane.

BEECH-JONES J:   Was that 115?

MR KORMAN:   Paragraph 115.

GAGELER CJ:   You would not need to be as brutal as the holding in Ex parte Beane.  You could say that the Minister’s statement was, perhaps, incomplete, and that the explanatory notes that you see at page 1758 – which I think, in New South Wales is prepared by the parliamentary draftsman – is a much more concise and accurate statement.

MR KORMAN:   Yes.

BEECH‑JONES J:   Or do you say it does not distinguish between third parties with no interest and third parties or parties with an interest?

MR KORMAN:   That is right, and I think that perhaps it would be fair to say that political speeches sometimes have ambiguity in them, and the fact that there is just a reference to third parties, I think, really could be understood in many different ways.

Your Honours, I will continue with my submissions.  I had touched on the point earlier that an analogy can be brought – sorry, just one moment.  Your Honours, I had touched on the issue earlier that the question of whether common law standing – general law standing – is to be viewed through the prism of legislation or as a principle.  This issue was raised in S10, citing Kioa, and there what was said at paragraph 97 is that:

a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive.

So, really I think that we can move on to the second part of my submissions which is the construction of statute, and we have already gone there in different ways.  The first point I want to touch on is the Anthony Hordern principle, which was raised in the appellant’s reply.  What is being argued there is that from the limitations expressed in section 69SB(1) and in section 13.14A, those limitations in a particular context limit the jurisdiction of the court in a more general context, but it must be borne in mind that that relates to section 20(1)(cga).

So, that is the provision that brings in the statute.  If it was to be applied, that is the provision that is limited, but it simply cannot be argued that anything in the statute to be enforced limits the court’s jurisdiction to grant equitable relief in a general fashion.  For completeness, I should say that that argument really only applies to 13.14A which grants jurisdiction to bring proceedings in the Land and Environment Court.  Section 69SB is merely related to a function and is not called in here.

Now, I should say in response to Mr Hutley’s contention that the panoply of powers that is vested in the EPA suggests that the Parliament did not intend to have general law standing because the powers of the EPA are sufficient to cover the field.  Mr Hutley took you to Part 11 of the Biodiversity Conservation Act.  If we go there, that is on page 139 of the Act, and this part contains all the powers that Mr Hutley took the Court to.  But one sees in 11.2(1) that:

The powers under this Part may be exercised for the purposes of this Act or the native vegetation legislation.

That is, they apply to all aspects of the Biodiversity Conservation Act.

STEWARD J:   Sorry, what section was that?

MR KORMAN:   Section 11.2(1), which is the beginning of Part 11 which sets out the regulatory mechanisms.

BEECH‑JONES J:   Did you say 11.2(1)?  Section 11.2 subsection (1) do you mean?

JAGOT J:   Yes, it is 11.2 bracket (1).

MR KORMAN:   Sorry.

BEECH‑JONES J:   I see, yes.

MR KORMAN:   Now, if one goes to the civil proceeding section, that is Division 2 of Part 13, and that is on page 171, this is the section that contains 13.14A but it also contains 13.14 which is a general provision.  That is an open standing provision, so that:

Any person . . . 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 –

Which relate to private land native forest.  So, the contention that wide‑ranging powers granted to the EPA are somehow inconsistent with a grant of standing to third parties has to fall away in light of the fact that nearly all of the Biodiversity Conservation Act which creates those powers has open standing.

Moving to the language that is used in the provisions, and we have touched on in general terms that the natural meaning of the language is consistent with a non‑exclusive conferral of jurisdiction, if we go to 13.3(1) on page 146 – and this is the criminal portion of this Part – we see:

Any legal proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may only be taken by a police officer –

et cetera.  Mr Hutley explained that the reason for “only” was because there was standing in the hands of other parties – namely, the Department of Public Prosecutions – to bring a proceeding.  Well, the same reasoning applies to 13.14A, which does not use the word “only” because of general law standing.  That is, there was a common law right in the hands of other parties to bring proceedings, and if the intention was to exclude that right the word “only” would have appeared in 13.14A, as well.  We see in 69SB of the Forestry Act, SB(1) provides the Environment Protection Authority has two functions:

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.

So, the word “function” is used twice in that provision.  But the function of monitoring the carrying out of forestry operations is surely not an exclusive function.  I do not think anyone would argue that nobody else is allowed to monitor forestry operations.  So, that is used in a non‑exclusive sense and the assumption would be that the word “function” has not been used in two different senses.  I think the written submissions have authority for that proposition.

A third reason is – and this is touched on in the Court of Appeal reasons, I think – that the EPA was created by section 5 of the Protection of the Environment Administration Act, and section 7 restricts the authority’s function to those conferred or imposed on it by statute.  So, these provisions should be seen as facultative.  That is, they create a power in the EPA which would otherwise not have existed to do the things which 69SB and 13.14A allow it to do.

We have already touched on 69ZA(3) and that, as we have been through, provides for a Minister and certain other persons to bring proceedings.  That – 69ZA(3) – does not sit comfortably with a construction of 69SB and 13.14A, which sees that as conferring exclusive jurisdiction.  The jurisdiction that was conferred obviously was not exclusive because those other persons have been empowered to bring proceedings.  Admittedly, it does not – there is no mention of third party standing, but it does negate the concept of exclusive conferral.  Once that is negated, you are left with conferral that was not exclusive.

Two other points that count towards the construction of this Act as not conferring exclusive standing on the EPA is that many other statutes used exactly the same language to confer standing in circumstances where those statutes provide for open standing.  I will give you an example, which is the Local Land Services Act.  That is at page 639 of volume 3 – the tab number, sorry, is 17.  So, 60ZZB provides – and this is an open standing Act:

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 . . . under this Part.

The Biodiversity Conservation Act, where I took your Honours to 13.14 earlier, you will see, your Honours, at 13.14(1)(b), open standing is conferred on Part 5A and Part 5B of the Local Land Services Act.  One final point I should mention is the intermediate appellate case of VicForests v Environment East Gippsland (2023) 74 VR 216. That is at volume 6, tab 38.

GAGELER CJ:   Do we need to look at it?

MR KORMAN:   You do not need to look at it.  What I will say to your Honours is that in that case, at paragraph 267, the Court of Appeal found that despite the fact that there was a regulator, that did not impact on the notion that there was third party standing to bring the proceeding.

I have taken the Court through the express standing provisions.  I have taken the Court, as well, to section 69ZA.  I should just make the point, which I think perhaps is obvious, that section 20(1)(e), if one takes the view that the statute conferring jurisdiction on the court imports the implicit requirements, that that is not an open standing provision, because only specially affected plaintiffs can bring a proceeding.

I should just, before leaving topic 2, mention that my learned friend mentioned a few times that it could not be that the court, sub silentio, enacted legislation that conferred standing on plaintiffs with a special interest in the subject matter.  The response to that is the view set out in Electrolux.  That is, that it is a working hypothesis that the legislature and the Parliament share that important common law principles – perhaps I should state it exactly.  Just one moment:

The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted.  The hypothesis is an aspect of the rule of law.

That is the response to the issue about sub silentio.  So, moving now to the principle of legality.  The parties are in agreement that the principle is that which is set out in Lee at paragraph 313.  It does not protect any common law principle, but it does protect fundamental principles and systemic values.

I think the point was made that this really is a principle of long standing.  ACF did not introduce a new principle.  ACF explained the understanding the understanding of Boyce in contemporary circumstances.  Just as the requirement of procedural fairness cannot be abrogated without clear words, by analogy the same applies in this case.  In Plaintiff S10 at paragraph 68, Kioa is cited there.  In that case, what is said is that – this is at paragraph 68:

In Kioa Brennan J also stated his agreement with the proposition that the interest which tends to attract the protection of the principles of natural justice may be equated with the interest which, if affected, gives “standing:  at common law –

So, they really are two aspects of the same idea to seek a public law remedy:

This relationship is illustrated by the point made in the Offshore Processing Case that each plaintiff had a real interest in raising the questions to which the declaratory relief went.

EDELMAN J:   But that is because an individual who is denied procedural fairness has been denied an individual freedom or an individual liberty, not because they have been denied a public duty.

MR KORMAN:   No.  So, when I say it is analogous, it is not analogous in that way, but it is analogous in that, just at the individual level, procedural fairness plays a protective role.  At the public interest level, Commonwealth standing plays a similar role, that when there is unlawful interest in a matter that affects the public interest, there should be some means of challenging that.

The respondent’s argument is straightforward:  general law standing is important to ensure that those who exercise public power do so in accordance with the law and are accountable to the courts where that power is exercised unlawfully.  It will often represent the only avenue for ensuring the rule of law in circumstances where the Executive is unable or unwilling to act.

The appellant argues that general law standing is not a fundamental right.  I think this was touched on, your Honour Justice Edelman, in our discussion earlier, that it is unhelpful to conceptualise general law standing in terms of rights.  The crucial matter is that a public interest injunction will compel a defendant to act within the law.  The right of access to the courts enjoyed by a plaintiff with the requisite special interest is important but it is not important in itself.  It is important the rights and the plaintiff’s role as the vindicator of public interest, rather than some private interest enjoyed by the plaintiff. 

The appellant relies upon some passages from Palmer v Western Australia to suggest to counsel caution when the rule of law is applied as it is a highly contested and abstract notion.  But the discussion in Palmer was in a constitutional context and the comments about the plurality and Justice Edelman referred to by the appellant relate to the extent to which the notion of the rule of law shapes the express or implied meaning of the Constitution.

But the respondent does not rely upon any abstract or contested aspects of the rule of law.  It relies upon a concrete and uncontroversial proposition:  those who owe statutory duties to the public should be responsible to the courts for any contravention of the statutory scheme that binds them.  A frequently‑cited statement of this proposition can be found at paragraph 56 of the Corporation of the City of Enfield, which is volume 4, tab 28, page 176 – sorry, it is page 907.

BEECH‑JONES J:   What was that paragraph, please?

MR KORMAN:   Paragraph 56, where her Honour Justice Gaudron says:

Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers.  It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise.  The rule of law requires no less.

The appellant ultimately accepts that common law standing can advance the rule of law because, applying Professor Fuller’s methodology, judicially enforcement of a decree of law is a means of ensuring congruence between rule and action.  But the appellant argues that judicial enforcement at the behest of persons with a special interest is not the only method of promoting the rule of law.  The appellant points to various actions the Executive might undertake in order to promote congruence between rule and action, including legal action by the regulator.

But the fatal flaw in this argument is that it ignores the practical reality that it is often unrealistic to assume that an arm of government or an entity answerable to the government will reliably enforce violations or non‑compliance with public legislation.  That reality may stem from all of government policies, but it may also stem from budgetary constraints.  His Honour Justice Basten referred to this issue at paragraph 45 of the judgment.  I will not take the Court there, but his Honour, in brief, spoke about the unlikely prospect of an entity answerable to one Minister suing the other, and the even more unlikely prospect of the EPA suing itself.

Your Honours, perhaps at this point, in reaching the end of these submissions, I should go to Chief Justice Gibbs’ words in Onus at volume 4, tab 33, page 1173.  I am looking about halfway down, and the Chief Justice, starting with the words ‑ ‑ ‑

STEWARD J: Can you give us the Commonwealth Law Report page number? It is 149 CLR 27, and what page do you want us to go to?

MR KORMAN:   Page 35.

STEWARD J:   Thank you very much.

MR KORMAN:   So, if we go to the middle of the page, his Honour says:

If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose –

and that is the purpose that was, in Onus, in relation to the Aboriginal relics:

it would be necessary to give weight to confliction considerations.  On the one hand it may be thought –

and this is the important sentence:

that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated.

His Honour goes on to discuss the countervailing issues of busybodies, et cetera, that were raised in ACF, but I think it is important to realise that from the outset of the modern general law standing regime in Australia, there was this recognition of its importance in protecting the rule of law.

Ultimately, your Honours, the appellant seeks to avoid the conclusion that accountability of those who wield public power for their unlawful actions constitutes a fundamental principle and systemic value in our society.  It seeks to do this by resorting to arguments whose shared gravamen lies in the unacceptable proposition where an appointed regulator fails to prevent the law from being ignored or violated, the community must simply put up and shut up.

My learned friend – just one final point I wanted to make – Mr Hutley raised the idea that equity will only step in when a statute provides for inadequate enforcement.  This matter was discussed, and I will not go over that, but I just wanted to go through the law that led up to Truth About Motorways, paragraph 98, which is the provision that the appellant relies upon for that proposition that there must be some defect in the law.  One starts with Bateman’s Bay, and I will get the – that is CLR ‑ ‑ ‑

GAGELER CJ:   We are going through a series of cases, are we?

MR KORMAN:   Yes.  I am going to Bateman’s Bay, City of Enfield and, finally, Truth About Motorways.  But I can just read it out, if it is more convenient to the Court.

GAGELER CJ:   Yes, and perhaps just tell us the pathway that you are taking – why are we going to these cases, what is it that you are getting out of them?

MR KORMAN:   Because – well, I will just tell you what I am wanting to establish, and I will tell you the paragraphs.  The proposition I want to establish is that the passage in Truth About Motorways which referred to the defects in the law was not a reference to the law that is sought to be enforced.  The passages that I will tell the Court about in a minute refer to the shortcomings of the common law, the shortcomings of the prerogative remedies in allowing an affected member of the public to seek to restrain unlawful conduct of those who affect the public interest.

Each of the references that I wil; mention describe the importance of equity, the importance of the principle of common law standing, of filling that gap.  So, it is not the gap in the law that has been enforced that equity seeks to fill; it is the unsuitability of prerogative remedies – for example, the inability to stop a future action – that the public interest injunction plays such an important role.  I will just tell your Honours the paragraphs:  it is Bateman’s Bay at paragraph 25; City of Enfield, paragraphs 19, 54 and 57 to 58.  If one looks at these provisions, one says that that is really what the Court was talking about.

Your Honours, I will just finish on Justice Brennan’s observation in Onus, which perhaps succinctly summarises the position in relation to the importance of common law standing, which is that:

To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement.

Your Honours, if there is nothing your Honours want to ask me?

GAGELER CJ:   Thank you, Mr Korman.

MR KORMAN:   If it please the Court.

GAGELER CJ:   Mr Hutley.

MR HUTLEY:   Thank you, your Honour.  As to inadequacy of the regime established beyond, with respect, referring to what was said by Justice Basten at paragraph 49 in core 87, to the effect that one could not expect the EPA to sue another body, that, with respect to his Honour, simply is without – the duty of the EPA is to fulfil functions that are placed upon it.

The central organisation in relation to IFOAs was my client, and to conclude without, with respect to his Honour, any basis that the EPA would not pursue my client, without evidence – there was no evidence implying that it is never pursued, and had there been, there would have been, I think, some quite surprising material.  Therefore, that is the only matter adverted to as to the question of inadequacy and, with respect, as we referred to in our written submissions, his Honour simply was not in a position to make that.

Now, beyond that, the only reference to inadequacy seems to be the fact that people in the position of my learned friend’s client would be unable to enforce, but that, of course, is wholly circular, because that has assumed your conclusion.  Now, of course – and that leads to the position with respect to the – with the inadequacies which were found by the courts with the common law.  The inadequacy, as appears from Bateman’s Bay, and I will not go to them, at paragraphs 34 and 38, was the position that the Attorney‑General found himself or herself in because of practical realities of their political position.  That was an inquiry by the Court into the adequacy in fact of the position, and the Court found as a matter of, in effect, fact, the position was inadequate.  Now, we say ‑ ‑ ‑ 

GAGELER CJ:   Mr Hutley, are you really suggesting that in an inquiry in what you call the auxiliary jurisdiction of the court into whether an applicant – or the applicants, in this case – have standing, part of the inquiry is to examine the readiness and willingness of the EPA to take regulatory action?  Is that where the submission is going?

MR HUTLEY:   No, your Honour, what we say is, if we are right, one starts at section 20 of the Land and Environment Court Act.  Section 20(2) says you have the same jurisdiction as you would, in effect, in the Supreme Court.  The Supreme Court, we say, with respect to relevant relief, would be implying relief on equitable principles.

We say the equitable principles – and we have taken your Honour to them, I am not going back to them – say that the equitable principle which underlies the position with respect to the standing with which we are concerned is questions of inadequacy of remedy.  We say the position has not changed because one needs to, in effect, be satisfied that the remedies which are available are inadequate before one introduces a third person, otherwise, a third person has absolute entitlement, no matter how adequate the remedies are, unless you find, in effect, some exclusion of them.

Now, if one comes to the conclusion that the equitable principles simply have lost their force, then one would be in the position such as that.  But we take from Bateman’s Bay this Court having said in the plurality that the equitable principles still inform the inquiry – no more than that.  We say, if that is right, in an inquiry with respect to these matters, there is an inquiry into adequacy or inadequacy.  And we have made our submissions, and we say nothing has indicated that the structure which has been so deliberately put in place by the legislature, with such precision, is in any way inadequate for the adequate enforcement of rights.

That is our position.  Now, if your Honours take the view that the adequacy has ceased to have an effect, it is irrelevant, it is an historical accident – it started there, but it is over – we say that one would then move to this proposition:  has the legislature, in conferring jurisdiction here, indicated an intent?  Now, then we have the first proposition of our learned friend, is that in effect you ignore the scheme under the Forestry Act; you begin and end at section 20 of the Land and Environment Court Act.

The problem with that is that section 20 gives jurisdiction expressly in respect of the scheme with which your Honours are concerned in subsection (3).  In effect, it calls up the scheme, and therefore, in effect, in determining whether the Land and Environment Court would give relief in the same way as the Supreme Court of New South Wales – and I will not go over the provisions – you have an interrelationship between 20(2)(a) and the scheme.  Then one goes to the scheme.

Now, the point made there – and I do not want to go back over them, but our learned friend said when one came to the second reading speech, one was overreading the second reading speech of the Minister.  Now, your Honour the Chief Justice made reference to clause 38 – that is tab 42, volume 7, at page 1758 – and I take it from your Honour’s remark that your Honour was making an observation about the use of the word “certain”.  Your Honour, a fair reading of that is “certain” is a reference to the enforcement proceeding:

certain civil . . . enforcement proceedings by third‑parties –

being the ones mentioned in subsection (2) and, relevantly, subsection (2)(b), because that is what is being referred to.  The second reading speech of the Minister is wholly consistent with that, i.e., not third parties with respect to “certain civil and criminal proceedings”, being those in subsection (2)(b), which includes, of course, the relevant one with which one is concerned here.  So, we say that, in effect, there is nothing, as it were, to be drawn from clause 38.  We say the Minister’s statement was wholly consistent with clause 38, and it in no way was it, as it were, an overreach by the Minister.

STEWARD J:   I assume you urge us to read the second reading speech plainly, because any other conclusion would undermine certainty.

MR HUTLEY:   Quite.

STEWARD J:   That was one of the key features of this new settlement, as it were, was you get certainty, but you get other things.

MR HUTLEY:   Precisely.  The wildcard comes in of third parties who happen – and having regard to, in effect, what we have called ACF status, who may or may not have a sufficient interest, is what you might call a somewhat fluid set of criteria.  I am not criticising them, but you cannot predict, with any certainty, who may or may not choose to develop an interest and how many may or may not, in how many aspects of a particular IFOA.

BEECH‑JONES J:   Why are they a greater agent of chaos than the EPA?

MR HUTLEY:   I am sorry, your Honour?

BEECH‑JONES J:   Why are they a greater agent of chaos than the EPA?

MR HUTLEY:   The history, as the second reading speech says, is that there was a plethora of suits, and those suits led to, in effect, uncertainties, because people could start suits, and once a suit is started – and you have potentially a plethora of them – uncertainty and insecurity develops about further activity.  You also get uncertainty about possible relief.

You get uncertainty, for example, about the capacity to enter into undertakings, such as . . . . . with the EPA, as opposed to having an absolute injunction of the variety.  So, in effect, if you know the organisation or the person, the person who is charged with enforcing it, you, in effect, are not, perhaps – and I am not saying this critically – subject to indeterminate number of suits from indeterminate sides from time to time.  One person.

BEECH-JONES J:   Does ACF standing lead to indeterminate number of people?

MR HUTLEY:   Well, any number of people who develop the requisite relation to, say, have a sufficient interest, by definition, obtain the standing, on our learned friend’s submission.  That is what we wanted to say.  The second reading speech and the explanatory memoranda are wholly consistent.

Reference was made to 13.14 of the Biodiversity Act and the fact that it has open standing.  Our point is the legislature, when it wanted to confer open standing, did it, and did it deliberately, with obvious intentions that apply to a certain range.  When it did not want it, it did not, in effect, and I took you through the other ones where they have different gradations of standing, in many of which, to introduce ACF standing would lead to potential chaos.  What that structure showed throughout the Biodiversity Act is a deliberate scheme to, as it were, calibrate standing to the particular needs of the particular structures and relations under consideration, and do it with the intention that that was it.

Our learned friends referred to 13.14A as in their favour, but the problem with 13.14A, no power is conferred on anyone other than the APA by 13.5, and that is a power which includes the power to remedy a breach.

BEECH-JONES J:   Do you mean the EPA?

MR HUTLEY:   The EPA, sorry.  Did I change a vowel or something?

BEECH-JONES J:   We have another regulator somewhere.

MR HUTLEY:   The EPA.  And that is a power to remedy the breach.  No such power would exist under the relevant statutory provisions if there was ACF standing for an order remedying the breach.  There would be, solely, the blunt instrument – the very important blunt instrument – of injunctions.  All the other powers, such as suspension of IFOAs, such as restoration of IFOAs, such as compensation, et cetera, would not exist in favour of people in my learned friend’s client’s – so, again, indicative of the schema which we have said.

Unless I can give further submissions, that is all we wish to say by way of reply.

GAGELER CJ:   Yes.  Thank you, Mr Hutley.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.55 PM THE MATTER WAS ADJOURNED