Fuller, Donald v Minister for Primary Industries and Energy
[1997] FCA 908
•7 August 1997
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE - application for extension of time to file and serve amended notice of application for judicial review - challenge to declaration of agent organism under Biological Control Act 1984 - registration of rabbit calicivirus disease injection - initial application dismissed for want of standing - fresh application by applicant in person - application directed primarily to merits of decision - failure to comply with requirements of Rules in relation to specification of grounds - difficulty in identifying grounds relevant to ADJR Act - application for extension of time refused.
Biological Control Act 1984 (Cth) s 26, s 28, s 29
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth)
Agricultural and Veterinary Chemicals Act (1994) (Cth)
Agricultural and Veterinary Chemicals Code Act 1994 (Cth) ss 14, 23
Johns v Australian Securities Commission (1992) 108 ALR 405
DONALD FULLER v MINISTER FOR PRIMARY INDUSTRIES AND ENERGY, NATIONAL REGISTRATION AUTHORITY
WAG 46 of 1997
FRENCH J
PERTH
7 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 46 of 1997 of GENERAL DIVISION )
BETWEEN: DONALD FULLER
Applicant
AND: MINISTER FOR PRIMARY
INDUSTRIES AND ENERGY
First Respondent
NATIONAL REGISTRATION
AUTHORITY
Second Respondent
JUDGE: FRENCH J PLACE: PERTH DATED: 7 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The motion for extension of time and interlocutory relief is dismissed.
The applicant to pay the respondents’ costs of the motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) WAG 46 of 1997 GENERAL DIVISION )
BETWEEN: DONALD FULLER
Applicant
AND: MINISTER FOR PRIMARY INDUSTRIES AND ENERGY
First Respondent
NATIONAL REGISTRATION AUTHORITY
Second Respondent
JUDGE: FRENCH J PLACE: PERTH DATED: 7 AUGUST 1997
REASONS FOR JUDGMENT ON APPLICATION
FOR EXTENSION OF TIME AND FOR INTERLOCUTORY RELIEF
Background to these Proceedings
On 13 September 1996 the Minister for Primary Industries and Energy declared Rabbit Calicivirus Disease organism to be an agent organism for the purposes of the Biological Control Act 1984 (Cth). On 16 September 1996 the National Registration Authority for Agricultural and Veterinary Chemicals (NRA) decided to register the Rabbit Calicivirus Injection as a chemical product under the Agricultural and Veterinary Chemicals Code Act 1994 (Cth).
On 10 October 1996 an organisation called the Defence Coalition Against RCD Inc. (Defence Coalition) filed an application in this Court seeking orders under the Administrative Decisions (Judicial Review) Act 1977 ( the AD(JR) Act) that the Ministerial Declaration be set aside and the Minister be restrained from declaring the virus to be an agent organism unless and until he had conducted a “full and proper commission of inquiry pursuant to section 28 and Part VII of the Act and had considered the report made as a result of that inquiry pursuant to section 28(3) of the said Act”. Interlocutory relief was also claimed. That application was WAG 154 of 1996.
On 18 October 1996 the Defence Coalition filed a motion seeking orders that the NRA be joined as second respondent in those proceedings and that interlocutory relief be granted suspending the Authority’s decision to register the rabbit calicivirus injection.
On 23 October 1996 the motion for joinder was stood over and the claim for interlocutory relief against the Authority dismissed. In his reasons for judgment, Nicholson J said that there was no serious issue to be tried at law in the case which the Defence Coalition sought to bring, albeit it was brought out of a genuine concern at the release of the rabbit calicivirus through registration. In reaching that view his Honour did not need to rely upon any presumption that the acts of the NRA were legal. Rather, he relied on the evidence before him.
On 25 October 1996 a motion was filed on behalf of the Minister seeking an order that the application be dismissed. The grounds upon which the order was sought were that:
(a) No reasonable basis for the application was disclosed; and
(b)The Defence Coalition was not a person whose interests were adversely affected by the decision of the Minister sought to be reviewed in paragraph 1 of the Application and was not a person aggrieved by the decision within the meaning of the Administrative Decisions (Judicial Review) Act 1977.
Argument on the motion proceeded on 20 February 1997 and on 12 March 1997 Nicholson J dismissed the application and ordered that the Defence Coalition pay the Minister’s costs.
His Honour’s reason for dismissing the application was that the Defence Coalition lacked the necessary standing to qualify as a “person aggrieved” for the purpose of bringing proceedings under the AD(JR) Act. He said:
“The true position is the decision does not effect the members of the applicant differently from ordinary members of the public except in relation to their emotional and intellectual interest in the subject matter of the decision. On the applicant’s case it is not shown that success in the action would relieve it of a detriment or disadvantage to which it would otherwise have been subject to an extent greater than an ordinary member of the community.”
The Defence Coalition had been represented before his Honour by Donald Fuller who was a member of its committee. On 10 January 1997 Mr Fuller, no doubt anticipating the possibility of a finding adverse to the Defence Coalition on the matter of standing, filed the application in his own name which has initiated the present proceedings.
In its amended form, which was filed on 28 April 1997, the application is for an extension of time within which to bring proceedings under the AD(JR) Act. The orders sought in the proposed substantive application are in the following terms:
“A. The agent organism declaration under the Commonwealth of Australia Biological Control Act 1984 by John Duncan Anderson, Minister for Primary Industries and Energy, on or about 16 September 1996 as appearing in the Commonwealth of Australia Gazette be set aside.
B. The First Respondent be restrained from making any fresh declaration of rabbit calicivirus to be an agent organism under the Biological Control Act 1984 unless and until he conducts a full and proper Commission of Inquiry pursuant to section 28 and Part VII of the Act and has considered the report made as a result of that Inquiry pursuant to section 28(3) of the said Act.
C.(a) The decision and/or the operation of the decision of the Second Respondent made on or about 16 September 1996 to register subject to conditions the product Rabbit Calicivirus Injection under the Agvet Code be set aside or suspended.
(b) Alternatively that the decision of the Second Respondent made on or about October 1996 not to reconsider registration of the product Rabbit Calicivirus Injection under the Agvet Code be set aside; and
(c) Alternatively that the decision of the Second Respondent made on or about 18 October 1996 not to suspend or cancel registration of the product Rabbit Calicivirus Injection under the Agvet Code be set aside.”
By way of interlocutory relief, Mr Fuller seeks orders that:
“F. The First Respondent be similarly restrained pending the hearing of this matter.
G. The decision and/or the operation of the decision of the Second Respondent made on or about the 16 September 1996 to register subject to conditions the product Rabbit Calicivirus Injection under the provisions of the Agricultural and Veterinary Chemicals Code Act 1996 be suspended until further order.”
Statutory Framework
There is in place in Australia a co-operative statutory scheme for the biological control of pests. The relevant Commonwealth Act is the Biological Control Act 1984 which is described in its long title as “An Act to make provision for the biological control of pests in the Australian Capital Territory, and for related purposes”. The Act refers to a Council known as the Agriculture and Resource Management Council of Australia and New Zealand (s 2). It establishes a Commonwealth Biological Control Authority (s 8(1)) and provides that the Authority shall be comprised by the Minister who is for the time being a member of the Council.
The Act contemplates that the States may make laws providing for the control by biological means of organisms causing harm in the State and may establish authorities having similar powers and functions to those of the Commonwealth Biological Control Authority. Such a law may be declared by the Authority to be a “relevant State law” for the purposes of the Act.
Part II of the Act provides that organisms of a particular kind may be declared to be “target organisms” (s 12). The Authority declared organisms of the species Oryctolagus Cuniculus (European rabbits) to be target organisms for the purposes of the Act. There is no challenge to that declaration.
Part III of the Act provides a mechanism for the declaration of “agent organisms”. Prescribed live organisms of a particular kind may be declared to be agent organisms for the purposes of the Act (s 21(1)). Action for such a declaration may be commenced by a unanimous recommendation made to the Authority by the Council or pursuant to an application under s 22.
Where there has been a unanimous recommendation from the Council to the Authority for the declaration of an agent organism, the Authority is to publish in the Gazette and may publish in such newspapers or journals as it thinks appropriate, a notice that the Authority is contemplating declaring the relevant organism to be an agent organism (s 26(1)). Such a notice is required to contain certain particulars of the relevant organism (s 26(2)). In such notices the Authority is required to:
“(f) invite any persons who object to, or support, the relevant organisms being declared to be agent organisms to submit written particulars of the grounds for that objection or support, as the case may be, to the Authority within the period of 6 weeks after the date of the publication of the notice in the Gazette, or within such further period as the Authority (either before or after the expiration of that period) allows.”
The Authority is to consider any submissions in response to an invitation for submissions (s 27).
There is a facility for the Authority to direct that an inquiry under Part VII of the Act be conducted in respect of the recommendation for the declaration of an organism as an agent organism. This does involve the exercise of a discretion. The section is in the following terms:
“28.(1) Where the Authority, after -
(a)complying with sections 26 and 27 in respect of an agent recommendation;
(b)consulting the Council regarding the appropriateness of action under this section in respect of that recommendation;
(c)considering the nature of, the proceedings in, and the findings of, any inquiry that the Authority considers relevant to the recommendation (which may be an inquiry under Part VII in respect of a target recommendation or an inquiry conducted on behalf of a State); and
(d)considering any reports relating to the recommendation made by any person or authority competent to do so that the Authority considers relevant,
considers that there is evidence that a person or the environment would be adversely affected by the release of organisms of the kind to which the recommendation relates but an adequate investigation or inquiry into the effect of such a release has not been held, the Authority may -
(e)direct that an inquiry under Part VII be conducted in respect of the recommendation;
(f)arrange for the Minister who administers the Industries Assistance Commission Act 1973 to refer the recommendation to the Industries Assistance Commission for inquiry and report; or
(g)arrange for the Minister who administers the Environment Protection (Impact of Proposals) Act 1974 to direct that an inquiry be conducted under that Act in respect of the recommendation.
(1A) Action shall not be taken under paragraph (1)(e), (f) or (g) in respect of an agent recommendation unless the council, upon being consulted in accordance with paragraph (1)(b), has unanimously recommended that the action be taken.
(2) An inquiry by virtue of paragraph (1)(e), (f) or (g) in respect of an agent recommendation that recommends that organisms of a particular kind should be declared to be agent organisms if organisms to which a target recommendation applies are declared to be target organisms and an inquiry by virtue of paragraph 19(1)(e), (f) or (g), as the case may be, in respect of that target recommendation may be conducted as if they were one inquiry.
(3) Where the Authority takes action under paragraph 1(e), (f) or (g) for an inquiry in relation to an agent recommendation, the Authority shall not take any further action under this Act, in relation to that recommendation unless and until the Authority has considered the report made as the result of that inquiry.”
The Authority is authorised under s 29 of the Act to make declarations of agent organisms in the following terms:
29(1) Where the Authority, after -
(a)complying with the preceding provisions of this Part in relation to an agent recommendation;
(b)considering all reports and other matters relating to that recommendation that the Authority considers it appropriate to consider; and
(ba)consulting the Council regarding the appropriateness of action under this section in respect of that recommendation,
is satisfied -
(c)that the release of organisms of the kind to which the recommendation relates (in this sub-section referred to as the “relevant organisms”) could result in the control of target organisms of a particular kind or kinds in the Australian Capital Territory; and
(d) that-
(i)the release of the relevant organisms would not cause any significant harm to any person or to the environment, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds; or
(ii)any harm caused to persons or to the environment by the release of the relevant organisms, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds, would be significantly less than-
(A)the harm caused, or likely to be caused, by failure to control target organisms of that kind or those kinds throughout Australia; and
(B)where target organisms of that kind or those kinds can be controlled by the release of other organisms or otherwise than by biological means - the harm (if any) caused, or likely to be caused, by controlling target organisms of that kind or those kinds throughout Australia by the release of those other organisms or by those other means,
the Authority, subject to subsection (1A) shall, by notice published in the Gazette, declare the relevant organisms to be agent organisms for the purposes of this Act.
(1A) The Authority shall not make a declaration under sub-section (1) in respect of an agent recommendation unless the Council, upon being consulted in accordance with paragraph (1)(ba), has unanimously recommended that the declaration be made.
(2) A notice under sub-section (1) declaring organisms of a particular kind to be agent organisms may set out conditions under which those organisms may be released, which conditions may be or include -
(a)conditions specifying the persons who may release those organisms; or
(b)conditions specifying the circumstances in which those organisms may be released.”
Other parts of the Act relate to the making of special declarations including declarations of organisms declared under relevant State laws, the release of agent organisms (Part V) and appointments, remuneration, procedures and other associated matters relating to inquiries under the Act (Part VII). There is provision in Part VIII for applications to be made to the Administrative Appeals Tribunal for the review of a decision of the Authority for the purposes of s 28 not to hold an inquiry and a decision of the Authority for the purposes of s 29 which is inconsistent with a finding or recommendation of a Commission referred to in Part VII, the Industries Assistance Commission or a commission referred to in the Environment Protection(Impact of Proposals) Act 1974.
A further co-operative scheme for the evaluation, registration and control of agricultural and veterinary chemical products and for related matters is established pursuant to the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth), the Agricultural and Veterinary Chemicals Act 1994 (Cth) and the Agricultural and Veterinary Chemicals Code Act 1994 (Cth). Mirror legislation is found in the various States of Australia.
The Agricultural and Veterinary Chemicals Code Act 1994 schedules the Agricultural and Veterinary Chemicals Code (the Agvet Code). This makes provision for the evaluation, registration and control of agricultural and veterinary chemical products and for related matters. The Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) establishes the National Registration Authority for Agricultural and Veterinary Chemicals (NRA). That Authority has the functions and powers conferred upon it by that Act or by the Agvet Code of the participating territories (s 7(1)).
The Agricultural and Veterinary Chemicals Act 1994 provides that the Agvet Code is to apply as a law of the participating Territories. The participating Territories mean the Australian Capital Territory and any other Territory declared by regulations in force under s 25 to be a participating Territory. It sets up a scheme under which the Agvet Code of the participating Territories is to operate in appropriate circumstances as if that Code, together with the Agvet Code of each State, constituted a single national Agvet Code applying throughout Australia. The Agvet Code of each State binds the Crown in right of the Commonwealth, of the Australian Capital Territory and of Norfolk Island (s 14).
The Agvet Code provides for the registration of chemical products. A person may apply to the NRA for registration of a chemical product (s 10(b)). There is a notice requirement in the case of chemical products containing active constituents not previously contained in a chemical product registered in any jurisdiction under the Agvet Code or a corresponding previous law of the jurisdiction concerned (s 13). The notice provision includes a requirement to invite submissions (s 13(1)(b)). The Authority is obliged to take into account any submissions made in response to such an invitation.
The granting of applications is dealt with in s 14 of the Agvet Code. The relevant parts of s 14 are as follows:
“14(1) The NRA must grant an application made under section 10 if it is satisfied of all the matters referred to in subsection (3).
(2) If the NRA is not satisfied as mentioned in subsection (1), it must refuse the application.
(3) The matters referred to in subsection (1) are the following:
(a)that the applicant has complied with subsection 11(1);
(b)that any requirement made under section 157 or 159 has been complied with;
(c) that, if necessary, section 158 has been complied with;
(d)that any requirements prescribed by the regulations in relation to the constituent, product or label, as the case may be, have been complied with;
(e)if the application is for approval of an active constituent or registration of a chemical product - that the use of the constituent or product in accordance with the recommendations for its use that the NRA propose to approve:
(i)would not be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues; and
(ii)would not be likely to have an effect that is harmful to human beings; and
(iii)would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment; and
(iv)would not unduly prejudice trade or commerce between Australia and places outside Australia;
(f)if the application is for registration of a chemical product - that the use of the product in accordance with the recommendations for its use that the NRA proposes to approve would be effective according to criteria determined by the NRA for the product;
.
.
.(4) In satisfying itself for the purposes of subsection (1) whether the use of an active constituent in accordance with the recommendations for its use that the NRA proposes to approve would be an undue hazard as mentioned in subparagraph (3)(e)(i), or would be likely to have an effect that is harmful as mentioned in subparagraph (3)(e)(ii) or (iii), the NRA may have regard to such matters as it thinks relevant but must have regard to the following:
(a)the toxicity of the constituent and its residues in relation to relevant organisms and ecosystems, including human beings;
(b)the method by which the constituent is, or is proposed to be, manufactured;
(c)the extent to which the constituent will contain impurities;
(d)whether an analysis of the chemical composition of the constituent has been carried out and, if so, the results of the analysis;
(e)any other matters prescribed by the regulations.
(5) In satisfying itself for the purposes of subsection (1) whether the use of a chemical product in accordance with the recommendations for its use that the NRA proposes to approve would be an undue hazard as mentioned in subparagraph (3)(e)(i), or would be likely to have an effect that is harmful as mentioned in subparagraph (3)(e)(ii) or (iii), the NRA may have regard to such matters as it thinks relevant but must have regard to the following:
(a)the toxicity of the product and its residues in relation to relevant organisms and ecosystems, including human beings;
(b)the relevant poison classification of the product under the law in force in this jurisdiction;
(c)how the product is formulated;
(d)the composition and form of the constituents of the product;
(e)the acceptable daily intake of each active constituent contained in the product;
(f)whether any trials or laboratory experiments have been carried out to determine the residues of the product and, if so, the results of those trials or experiments and whether those results show that the residues of the product will not be greater than limits that the NRA has approved;
(g)the stability of the product;
(h)the specifications for containers for the product;
(I)any other matters prescribed by the regulations.
(6) In satisfying itself for the purposes of subsection (1) whether the use of a chemical product in accordance with the recommendations for its use that the NRA proposes to approve would be effective as mentioned in paragraph (3)(f), the NRA must have regard to:
(a)whether any trials or laboratory experiments have been carried out to determine the efficacy of the product and, if so, the results of those trials or experiments; and
(b)any other matters prescribed by the regulations.
(7) This section has effect subject to section 15.”
The NRA is not to grant an application for registration of a chemical product unless its active constituents and each active constituent is an approved active constituent and the NRA also grants an application for approval of a label for containers for the product. Section 20 requires that if the NRA grants an application for registration of a chemical product it must register the product in accordance with that section either unconditionally or subject to conditions as mentioned in s 23 (s 20(1)). Section 23 provides for conditions of approval or registration in the following terms:
“23(1) The conditions of the approval of an active constituent for a proposed or existing chemical product, the registration of a chemical product or the approval of a label for containers for a chemical product are the conditions that the NRA thinks appropriate.
(2) Without limiting subsection (1), registration of a chemical product may be granted:
(a)on the condition that the product is supplied only in a container of a kind referred to in the condition or prescribed by the regulations; or
(b)on the condition that the product is not supplied in a container of a kind referred to in the condition or prescribed by the regulations.
(3) Approval of an active constituent for a proposed or existing chemical product, registration of a chemical product or approval of a label for containers for a chemical product may be granted on the condition that the approval or registration remains in force only for a stated period that is not more than one year.
(4) If the approval or registration is subject to a condition referred to in subsection (3) and the conditions of approval or registration have not been varied before the end of the period referred to in the condition, or the end of that period as previously extended under this subsection, so as to remove the condition, the NRA may vary the condition so as to extend the period for a further period of not more than one year or for further periods each of which is not more than one year.”
There is also provision in Division 4 of Part II of the Act for reconsideration of approval or registration.
The Proposed Application
The proposed substantive application does not in terms set out the grounds upon which review of the declaration and registration decisions is sought. The application is said to be brought under the following Commonwealth legislation:
1. The Administrative Decisions (Judicial Review) Act 1977.
2. The Agricultural and Veterinary Chemicals Code Act 1994.
3. The Biological Control Act 1984.
4. The Federal Court Act 1976.
The list of statutes makes clear that the substantive decisions sought to be reviewed are under the Agvet Code Act 1994 and the Biological Control Act 1984. The primary relief sought is under the ADJR Act. Sections 19 and 23 of the Federal Court of Australia Act are also invoked. The proposed substantive application is said to rely “on the grounds referred to in the accompanying affidavit and in other affidavits referred to therein”.
In the affidavit filed with his application initiating these proceedings (designated “The 13th Affidavit”), Mr Fuller addressed the question of his standing and identified the grounds of his application as “substantially the same as set out by the Defence Coalition” in action number WG 154 of 1996. He foreshadowed the filing of a further affidavit “setting out those grounds explicitly”. The further affidavit was filed on 28 April and was designated by Mr Fuller as his fifteenth affidavit, the fourteenth having evidently been filed in related proceedings in the Administrative Appeals Tribunal.
The fifteenth affidavit comprised some 65 pages. Paragraph 20 of that affidavit made reference to certain of the grounds of review specified in s 5 of the AD(JR) Act namely:
1.That procedures that were required by law to be observed in connection with the making of the decision were not observed (s 5(1)(b)).
2.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s 5(1)(e)).
Mr Fuller set out paragraphs 5(2)(b) to 5(2)(j) which identified the various bases upon which a decision can be said to have constituted an improper exercise of power. He referred to s 5(1)(g) namely:
“...that the decision was induced or affected by fraud.”
Each of these heads of review was said to “relate to matters raised in the application and ultimately to the declaration and to the registration.”
At para 37 of the fifteenth affidavit, Mr Fuller referred to his first affidavit filed on behalf of the Defence Coalition in WG 154 of 1996 in which he had set out what he there termed the “main grounds” for that application. The first of them was “all of the grounds set out in Appendix F”. These were grounds specified in a letter from solicitors Phillips Fox on behalf of the Defence Coalition directed to the Minister. Mr Fuller went on at para 37 of his fifteenth affidavit:
“Those grounds with minor adaptations of them to suit the particular Acts, have much wider application than just to the BC Act. I now adopt those as grounds for this application, though not the only grounds, asking that they be applied as nearly as practicable to each of the six Acts, ie:
. Quarantine Act Wild Life Protection Act
. BC Act EPIP Act
. ESP Act Agvet Code.”
The ESP Act is a reference to the Endangered Species Protection Act 1992 (Cth). The EPIP Act is a reference to the Environment Protection (Impact of Proposals) Act 1974 (Cth).
Grounds were set out in par 38. It is to be noted however from par 37 that par 38 is not intended to be exhaustive. The grounds there set out are as follows:
1.That relevant State and Commonwealth Ministers and Government Departments have failed to consult or sufficiently consult with all relevant commercial and industrial sections, public health groups and interested parties who will be affected by the release of the calicivirus.
2.The Commonwealth Biological Control Authority (the “Authority”) has failed to give due consideration to the risk to:
* all relevant commercial and industrial sections;
* the economy;
* public health; and
* the environment.
3.The Authority has failed to consult or sufficiently consult with various international experts and scientific bodies.
4.The authority has failed to give due consideration to the present methods of rabbit control.
5.The Authority has failed to conduct an inquiry into the escape of the calicivirus from Wardang Island.
6.The Authority has failed to take blockading and other quarantine measures to minimise or contain the uncontrolled spread of the calicivirus or to embark on any disease eradication campaign.
Then it is said at par 49 of the affidavit that the Minister did not meet the requirements of various provisions of the Biological Control Act 1984, being s 5(2)(a) and various subsections and paragraphs of ss 26, 27, 28, 29 and 53. Mr Fuller said in par 49 of his affidavit that the requirements of the various sections, subsections and paragraphs which had not been met by the Minister “may not be exhaustive”.
Paragraph 5(2)(a) of the Biological Control Act 1984 provides that the Act does not authorise or permit the doing of any act in contravention of the Quarantine Act 1908. The Minister it was said, in par 51, had failed to “observe the intents and provisions of the Quarantine Act as they applied to the transfer and biocontainment of organisms from one so called quarantine facility at Geelong to another at Wardang Island”.
This allegation is said to extend expressly to an allegation of conspiracy on the part of the proponents of the rabbit calicivirus disease program prior to the commencement of the Wardang Island trials and an agreement amongst themselves that accidental release would not be suppressed but exploited for maximum benefit. It is said in par 51 of the affidavit that the principles of the ADJR Act, ss 5(1)(b) and (e) and (2)(b) and (g) “should be applied as nearly as practicable”. The paragraph concludes:
“In total this amounts to criminal conspiracy and the relevant provisions of the criminal law should apply, including the provisions pertaining to acts against the State, ie treason.”
In relation to the alleged failure to meet the requirements of ss 26(1) and 28(1A) of the Biological Control Act, par 52 of the affidavit says that this ground goes to the fundamental question of unanimity between the participating members of ARMCANZ. Reference is made back to Mr Fuller’s third affidavit of 22 October 1996 in the Defence Coalition proceedings. He continues:
“The BC Act surely envisaged and intended genuine agreement between all of the parties - a “one-in-all-in” approach, so to speak.
The concept of those members with Island status, ie NZ and Tas. members, being able to hedge their commitment behind their Island status is surely abhorrent to the whole concept of shared decision making on such a fundamental issue as biological control.
Again, I cite the ADJR Act 1977, sections 5(1)(b) and (e) and (2)(b) and (g). The decisions made without unanimity as so clearly intended by the amended Act should be set aside.”
Section 26(1), it will be recalled, conditions the initiation of the public notification process undertaken by the Authority upon a unanimous recommendation of the Council that prescribe live organisms of a particular kind should be agent organisms. And s 28(1A) requires that an inquiry under Part VII shall not be undertaken in respect of an agent recommendation nor shall such a recommendation be referred to the Industries Assistance Commission for inquiry, nor shall the Minister administering the Environment Protection (Impact of Proposals) Act 1974 direct that an inquiry be conducted under that Act in respect of the recommendation unless the Council has unanimously recommended that such action be taken. The “detail” of this ground said to be contained in Mr Fuller’s third affidavit of 22 October 1996 at par 13 refers to what he describes in that affidavit as:
“...the uncommitted position of the two Island governments in this matter - New Zealand and Tasmania.”
He refers to Appendix R to that affidavit being a copy of a communication between a Doctor Van Roy in New Zealand and a Doctor Domingo in Spain referring to “....a possible release of RCD in New Zealand”. Mr Fuller says in the third affidavit he does not believe the New Zealand government was committed to the release of the RCD virus in New Zealand. Nor does he believe the Tasmanian government was committed to its release in Tasmania. He goes on to say in that affidavit:
“I contend that each of these positions reflects no genuine unanimity between the ARMCANZ members as required pursuant to section 26(1) of the Biological Control Act 1984, as amended expressly by insertion of the word “unanimously” in 1986, and 28(1A). The intent of unanimity is unmistakable.”
He refers to a news report from the Weekend Australian of September 7-8 1996. The report indicated that Tasmania’s insistence on making sure the Tasmanian Devil was not adversely affected by the rabbit calicivirus was threatening to delay the virus’ national release.
In relation to ss 26(2)(f) and 27, Mr Fuller goes on, in par 53 of his affidavit to allege that the Biological Control Authority failed to exercise reasonable discretion in requiring a six week response time, expiring on 10 January 1996, for submissions on the proposed agent organism designation. He says they failed to do so in a manner that no reasonable person properly informed would have done. Section 26(2)(f) simply refers to the obligation of the Authority to invite submissions. Section 27 refers to the obligation of the Authority to consider submissions provided. There is no specific minimum time to be prescribed for submissions to be forwarded to the Authority. Nevertheless, the time limited by the Authority in this case is said to provide a ground for review under ss 5(1)(b) and (e), together with ss 5(2)(b) and (g) of the AD(JR) Act.
Moreover, there was a complaint that the Biological Control Authority failed to comply with s 27 of the Act by improperly rejecting the Defence Coalition’s submission as irrelevant and failing to give due consideration or sufficient weight to submissions from American scientists, Doctors Smith and Matson.
Failure to comply with the requirements of s 28 is next addressed in par 56 of the fifteenth affidavit. In this it is said there was a failure on the part of the Authority, Minister and the Council to consider that there was evidence that a person or the environment would be adversely affected by the release of organisms of the relevant kind such that it was appropriate to direct an inquiry be conducted under the Biological Control Act in respect of the recommendation to release the organism, ie an inquiry under Part VII of the Act. The failure to direct such an inquiry was a decision which “failed to take a relevant consideration into account (the exhortations of Doctors Smith and Matson especially) and was an exercise of power that is so unreasonable that no reasonable person could have so exercised the power”. This is connected to complaints of non-compliance with s 28 on the part of the Authority arising out of its failure to consider an inquiry under Part VII. These are referred to in par 57 and par 58 of the affidavit. Paragraphs 59, 60 and 61 involved the consequential non-fulfilment of the conditions set out in s 29(1)(a) and (b) for a declaration of the organism as an agent organism.
The comment may be made in passing that the question whether the Authority considers that there is evidence that a person or the environment would be adversely affected by the release of organisms of the kind to which the recommendation relates and whether there has been an adequate investigation or inquiry into the effect of such a release, is a matter peculiarly within the province and expertise of the Authority. This Court may not embark upon a consideration of the merits of the Authority’s decision in that respect under the guise of judicial review pursuant to the provisions of the AD(JR) Act 1977. The general comment can also be made that many of the concerns traced through the affidavits of Mr Fuller go to the merits of the decisions to declare the rabbit calicivirus an agent organism and to register the RDC injection under the Agvet Code. This is reflected in the emphasis of his evidence upon the “science” of the decisions of which he complains.
Other matters which may qualify as grounds for the application are set out at paragraphs 63, 64, 65 and 66 of the fifteenth affidavit.
In a document filed on 11 June 1997 entitled “Summary of Grounds of Amended Application for Technical Extension of Time and Application as at 10 June 1997” it was said:
“The applicant stresses, the grounds outlined in this document are for the initial purpose of interlocutory relief now sought. They are sure to be enlarged upon closer to the trial. This case is still in a considerable state of flux.”
An examination of the “Summary of Grounds” which was elaborated upon orally by Mr Fuller at some length at the hearing of his motion for an extension of time and interlocutory relief discloses what, in my opinion, is substantial emphasis on the merits of the decisions complained of and ultimately a failure to identify clear grounds for judicial review. The identification of such grounds clearly, succinctly and exhaustively is not a mere technical imposition. It is a matter of properly informing the Court and the respondents of the case which is to be made and confining that case within the proper boundaries of the AD(JR) Act. The proposed amended application fails to do this.
Order 54 r 2 of the Federal Court Rules requires that:
“An application for an order of review made under the Administrative Decisions (Judicial Review) Act 1977 shall be in or substantially in the form numbered 56 in the First Schedule.”
It requires the specification of the grounds of the application. Order 54 r 2(2) provides that:
“If the grounds of the application include an allegation of fraud or bad faith, the applicant shall set out in the application particulars of the fraud or bad faith on which he relies.”
Despite the stated reliance upon an allegation of fraud, there is no specification of the basis of that allegation in the application as required by the Rules.
With due respect to Mr Fuller’s submissions as to the statutory consultation process it is hard to avoid the conclusion that he seeks to use the processes of this Court to obtain merits review of the decisions complained of. Hence, the extensive reference to the work of scientists critical of the release of the virus. While there can be no doubting the sincerity of his commitment to overturning the decisions, this Court is not the place to investigate their scientific appropriateness. In forming my general view of Mr Fuller’s application I have relied upon his own submissions rather than upon evidence placed before the Court by the respondents.
The Extension of Time
The threshold question before me is whether or not time should be extended to enable Mr Fuller to bring his application for review. I should say at the outset that on the basis of the obviously contentious evidence and the questionable legal case disclosed thus far I would not, if time were to be extended, grant interlocutory relief. As counsel for the respondents has pointed out, the terms of the interlocutory relief sought against the Minister are defined by reference to the final relief sought namely that he “be similarly restrained pending the hearing of this matter”. The final relief involves the setting aside of the declaration decision. As was submitted for the respondents, it is simply not possible for the first respondent to be “similarly restrained” prior to the hearing and determination of the matter. In relation to the claim for interlocutory relief against the NRA, I accept the submissions of the respondents that there is no evidence that Mr Fuller would suffer injury or detriment if interlocutory relief were not granted pending the hearing and determination of the application in relation to the Authority’s decision.
It is to be noted that on 23 October 1996, Nicholson J declined to grant interlocutory relief to restrain the operation of the decision of the Authority to register the rabbit calicivirus injection under the provisions of the Agvet Code Act. In so deciding, his Honour concluded that the case which the Defence Coalition sought to bring was directed to the merits of the matter before the Authority. An application for merits review of the NRA decision has been made to the AAT by the Defence Coalition.
The extension of time is sought pursuant to s 11 of the AD(JR) Act. The relevant delay appears to be in the order of nearly three months. In his submissions on this point, Mr Fuller relied upon the explanations for delay set out in the application document and the supporting affidavit. In summary he put it thus:
“Briefly, the time lapse is reflected in the outworking of related litigation commenced very soon after the review decisions were made. Standing was refused for the Defence Coalition which had been formed for the very purpose, leaving this applicant no option but to bring his own application which he promptly did.”
The substance of the basis for the extension of time as set out in the amended application seems to be that it was the failure of the Defence Coalition acting in the Federal Court which gave rise to the necessity for Mr Fuller to bring a personal application for review. It is asserted that there had been “a diligent approach to this matter with a very considerable participation on Mr Fuller’s part as a member, director and advocate of the Defence Coalition”. At par 10 of the application for extension of time it is said:
“...the fact that the Defence Coalition which had been formed for the very purpose of contesting this matter if necessary was granted standing in one place under the AAT Act and not the other under the ADJR Act is itself a pointer to the complexity in all of this. It is also a pointer to diligence, plainly there was a reliance and an intent there all along; and well known to the respondents.”
It seems from the terms of his thirteenth affidavit that Mr Fuller’s reluctance to become involved as an applicant at an earlier time was related to his desire not to expose himself to the potential costs of the litigation. This appears from pars 5, 6 and 7 of that affidavit which are in the following terms:
“5.This personal application is a reluctant measure to overcome refusal of standing on 12 March 1997 by the Federal Court for the Defence Coalition against RCD Inc in a similar role in a similar action number WG 154 of 1996
6.My reluctance in this personal capacity naturally has something to do with commercial prudence - who wants to take on one’s own Commonwealth Government in a personal legal battle of this nature? But the issues here extend beyond personal interest - and beyond feral rabbit problems in Australia!
7.Other values are sufficiently important to move me into personal action when the Defence Coalition has been blocked in the Federal Court in the way that it has. Though the Federal Court will not see it this way; and though it does not imply any indemnities from my supporters, we see my role as a purely nominal one in the place of the Defence Coalition.”
The discretion of the Court to extend time to bring an application under the AD(JR) Act is a broad one to be exercised by reference to a variety of factors which may differ from case to case. These include the nature and seriousness of the issues sought to be raised in proceedings and the explanation for the delay which has occurred. In Johns v Australian Securities Commission (1992) 108 ALR 405 at 413 Black CJ and Von Doussa J said:
“The nature and seriousness of the issues sought to be raised in proceedings under the AD(JR) Act are matters relevant to the exercise of the discretion to extend time, and were important matters in the present case. Where the extension of a procedural time limit is sought, the explanation for the delay which has occurred is one of the paramount matters to be considered by the court: Ulowski v Miller [1968] SASR 277 at 280 per Bray CJ. A delay for which the plaintiff is personally responsible will operate more severely against him than delays brought about by the act of others.”
There is no doubt from Mr Fuller’s perspective that he regards the issues raised in this matter as of utmost seriousness in the public interest. However, the delay which has ensued would appear to have resulted from his own choice to effectively proceed to the challenge of the decision through the vehicle of the Defence Coalition. In that sense the delay which has occurred is as a result of his own decision. Also relevant to the exercise of my discretion is the absence of a succinct and clear statement of grounds of review in the application itself and the impression that emerges from the various materials put before the Court that this is in substance a challenge to the merits of decisions which have to be taken on the basis of expertise and scientific evaluations.
Having regard to these matters it is not necessary for me to determine the question of Mr Fuller’s standing to bring the application. The application for an extension of time will be refused.
I have read an affidavit subsequently tendered by Mr Fuller, sworn 3 July 1997, in support of an application to re-open the hearing for an extension of time and for interlocutory relief. This affidavit referred to what was said to be an official decision by New Zealand refusing the importation of the rabbit calicivirus disease as a biological control for rabbits. In my opinion, however, this material would have made no difference to my decision. It appears to be relied upon by Mr Fuller to demonstrate that “Plainly there is not now genuine unanimity among the participating members of ARMCANZ...”. That is not however to say that the conditions required for the original recommendation and declarations were not fulfilled.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French
Associate:
Dated: 7 August 1997
Counsel for the Applicant: Mr D. Fuller appeared in person Counsel for the Respondent:
Mr P. Macliver
Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 June 1997 Date of Judgment: 7 August 1997
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