Society without Alcohol Trauma Inc and Australian New Zealand Food Authority
[2001] AATA 126
•21 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/243
GENERAL ADMINISTRATIVE DIVISION )
Re SOCIETY WITHOUT ALCOHOL TRAUMA INC Applicant
And AUSTRALIA NEW ZEALAND FOOD AUTHORITY
Respondent
DECISION
Tribunal Michael Sassella, Senior Member
Date21 February 2001
PlaceCanberra
Decision (1) That the Distilled Spirits Industry Council of Australia, the Winemakers' Federation of Australia and Australian Associated Brewers are made parties to this application for review. (2) That Alcohol Healthwatch, the Fetal Alcohol New Zealand Trust, the Group Against Liquor Advertising and People Against Drink Driving are not to be made parties to this application for review. (3) That the parties who have been joined are directed that, during the hearing for this application for review, they are to present evidence and submissions only on matters not addressed, or not addressed in the same way, by the Respondent.
.................. (Sgd).....................
Michael Sassella
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - standing - joinder - person whose interests are affected by the decision - interests affected - tribunal discretion - factors relevant to the exercise of discretion
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australia New Zealand Food Authority Act 1991
AUTHORITIES
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1
Comptroller General of Customs v AAT (1994) 123 ALR 140
Melsom v Deputy President Forrest (1996) 42 ALD 261
News Ltd and Ors v Australian Rugby Football League (1996) 139 ALR 193
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74
Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262
Re City of Doncaster and Templestowe and Minister for Community Services (1987) 12 ALD 13
Re Boyd and Comcare (1991) 23 ALD 392
Re Scott and Secretary to the Department of Social Security (1996) 42 ALD 738
Re GE Plastics (Australia) Pty Ltd and Chief Executive Officer, Customs (1998) 27 AAR 258
Re North Queensland Conservation Council and Great Barrier Reef Marine Park Authority and the State of Queensland and Nelly Bay Harbour Pty Ltd (2000) AATA 924
REASONS FOR DECISION
21 February 2001 Michael Sassella, Senior Member
Legislation and facts
The Australia New Zealand Food Authority (ANZFA) (the Authority) is a body corporate established under s 6(1) and (2) of the Australia New Zealand Food Authority Act 1991 (the "ANZFA Act").
Its functions are listed in s 7 of the ANZFA Act. The Applicant in the present action is interested in ANZFA's powers in relation to labelling of certain food. Those paragraphs of s 7 related to labelling are as follows:
7. (1) The functions of the Authority are:
(a)in accordance with this Act, to develop draft standards and draft variations of standards, to make recommendations to the Council in relation to those drafts where necessary and to review standards; and
…
(f) in consultation with the States and Territories, or on its own initiative, to co-ordinate the development of procedures required to implement requirements set out in standards; and
…
(h)in consultation with the States and Territories, or on its own initiative, to conduct research and surveys in relation to any of the matters that may be included in a standard; and
(i)in co-operation with the States and Territories, to develop food education initiatives, including the publication of information to increase public awareness of food standards and food labels; and
…
(r) any functions incidental to any of the foregoing functions.
Section 10 of the ANZFA Act sets out the objectives of the Authority. These are:
10(1) The objectives (in descending priority order) of the Authority in developing food regulatory measures and variations of food regulatory measures are:
(a) the protection of public health and safety; and
(b) the provision of adequate information relating to food to enable consumers to make informed choices; and
(c) the prevention of misleading or deceptive conduct.
(2) In developing food regulatory measures and variations of food regulatory measures, the Authority must also have regard to the following:
(a) the need for standards to be based on risk analysis using the best available scientific evidence;
(b) the promotion of consistency between domestic and international food standards;
(c) the desirability of an efficient and internationally competitive food industry;
(d) the promotion of fair trading in food.
Section 2A prescribes the object of the ANZFA Act as follows:
2A.The object of this Act is to ensure a high standard of public health protection throughout Australia and New Zealand by means of the establishment and operation of a joint Food Authority to achieve the following goals:
(a)a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand;
(b) an effective, transparent and accountable regulatory framework within which the food industry can work efficiently;
(c) the provision of adequate information relating to food to enable consumers to make informed choices;
(d) the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection.
Section 12 of the ANZFA Act permits a body or a person to apply to the Authority for the development or variation of a food regulatory measure. In the present context it appears that the Applicant, the Society Without Alcohol Trauma Inc ("SWAT") applied on 28 April 1998 to the ANZFA requesting an amendment of the Food Standards Code to include a requirement that all alcoholic beverages be labelled with the statement, "This product contains alcohol. Alcohol is a dangerous drug."
Section 13(1) requires that the ANZFA make a preliminary assessment of such an application. In doing so it has to have regard to the following matters (s 13(2)):
(a)whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants a variation of a food regulatory measure, as the case requires;
(b)whether the application is so similar to a previous application for the development or variation of a food regulatory measure that it ought not to be accepted;
(c)whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, Government or industry that would arise from the measure or variation;
(d)whether other measures (available to the Authority or not) would be more cost-effective than a food regulatory measure developed or varied as a result of the application;
any other relevant matters.
After such an assessment is made the Authority must accept or reject the application (s 13A(1)). If it accepts the application it goes on to make a full assessment (s 13A(2)(b)).
Section 14 of the ANZFA Act prescribes certain procedures for a full assessment:
(1) After accepting the application, the Authority must:
(a)give public notice of the matters mentioned in subsection (3) by public announcement and dissemination in a form the Authority considers will be effective in alerting interested parties to the proposal and which will make the details of the proposal generally accessible; and
(b) give written notice of those matters to each appropriate government agency.
(2)The Authority may give notice of the matters mentioned in subsection (3) to another body or person.
(3) A notice under subsection (1) or (2) must:
(a)state that the Authority has received an application for the development or variation of a food regulatory measure (as the case requires) on the date specified in the notice; and
(b) state that the Authority has accepted the application after making a preliminary assessment of it; and
(c) state that the Authority will make a full assessment of the application; and
(d) state how to obtain further information about the application; and
(e) invite written submissions on matters relevant to the application to be made to the Authority within the period specified in the notice.
Section 15(3) of the ANZFA Act requires that the Authority have regard to certain matters in making a full assessment. These are:
(a)any submissions made to it within the specified period in response to a notice given under section 13A or 14; and
(b) the objectives listed in section 10; and
(c)whether costs that would arise to bodies or persons from a food regulatory measure developed or varied as a result of the application outweigh benefits that would arise to the public from the measure or variation; and
(d)whether there are any alternatives (available to the Authority or not) which are more cost-effective than a food regulatory measure developed or varied as a result of the application; and
(e) any other relevant matters.
Section 15A(1) requires that the Authority, after making a full assessment, must prepare a draft food regulatory measure or a draft variation of a food regulatory measure, or it must reject the application.
Where the Authority rejects the application, as it did in this case on or not long before 23 June 2000, s 17A(1) requires that the applicant be notified in writing and that reasons be given for the rejection. The Authority did this on 23 June 2000. Section 17A(2) also requires that written notice of the decision be given to each appropriate government agency and to each other body or person who made a valid submission.
Section 63 of the ANZFA Act provides jurisdiction for the Tribunal in respect of rejections:
(1)Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal:
(a) by an applicant for the development or variation of a standard for review of:
(i)a decision by the Authority under section 13A to reject the application; or
(ii) a decision by the Authority under section 15A to reject the application; or
(b) for review of a decision under section 36 or 36A not to do something.
(2) In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
In this case the Authority gave the following reasons for rejecting the application:
Scientific evidence for the effectiveness of warning statements on alcoholic beverages shows that while warning labels may increase awareness, the increased awareness does not necessarily lead to the desired behavioural changes in 'at-risk' groups. In fact, there is considerable scientific evidence that warning statements may result in an increase in the undesirable behaviour in 'at-risk' groups.
In the case of alcoholic beverages, simple, accurate warning statements, which would effectively inform consumers about alcohol-related harm, would be difficult to devise given the complexity of issues surrounding alcohol use and misuse, and the known benefits of moderate alcohol consumption.
Costs associated with alcohol-related harm are high in both Australia and New Zealand. Estimates vary, but studies undertaken by national governments on a regular basis show a steady downward trend in alcohol consumption and alcohol-related harm. In Australia alcohol-related mortality rates decreased by 20% between 1990 and 1997. In New Zealand alcohol-related mortality rates decreased by 38% between 1980-82 and 1994-96. These decreases are related to reductions in overall alcohol consumption in both countries: 25% in New Zealand since 1980 and 1997; and 12% in Australia between 1990 and 1997. These cost reductions are due at least in part to the implementation of successful public health initiatives based on harm reduction strategies.
Comprehensive public health strategies aimed at reducing alcohol-related harm are implemented in both Australia and New Zealand. These strategies concentrate on those interventions already identified as being effective including controlling price, availability and the advertising of alcoholic beverages; identifying and targeting 'at risk' groups with health campaigns aimed at reducing alcohol-related harm; and devoting considerable resources to the discouragement of drink-driving.
When consumed at low to moderate levels alcohol has significant health benefits. These benefits result in a lower overall mortality for those who drink alcohol in moderation as compared with those who abstain from alcohol or consume it at higher levels. These health benefits are mainly due to reductions in the risk for coronary heart disease, a major cause of death in Australia and New Zealand in middle and old age. As alcohol consumption increases beyond low to moderate levels, these health benefits are countered by a rise in alcohol-related harm to health.
Although risks for some cancers and liver cirrhosis are increased, even at levels of alcohol intake regarded as moderate, these excess risks are more than outweighed by reduced rate of coronary heart disease.
The available scientific and medical evidence suggests that 'there was no evidence that light drinking by pregnant women harms the foetus'. In Australia the incidence of alcohol consumption in pregnant women is low and consumption at hazardous or harmful levels is uncommon. Evidence also indicates that the incidence of Foetal Alcohol Syndrome (FAS) is rare, even among 'heavy drinkers', and is highly concentrated in areas of low socio-economic status, where heavy drinking is associated with smoking, poor nutrition, poor health, increased stress and use of other drugs. Whereas none of the individual factors gives rise to FAS themselves, it is possible, if not likely, that they exacerbate the effects of heavy alcohol intake, resulting in FAS.
The National Health Advisory Committee (NHAC) of the National Health and Medical Research Council (NHMRC) is currently reviewing its 1992 recommendations regarding responsible drinking behaviour. The review is also paying specific attention to the issues associated with FAS.
In both Australia and New Zealand, alcoholic beverages are currently required to be labelled with alcohol content information. In Australia, all alcoholic beverages are also required to be labelled with information on the number of standard drinks. ANZFA's recent review of provisions regulating alcoholic beverages in Australia and New Zealand proposed that mandatory standard drink labelling be extended to products sold in New Zealand. This information, together with existing public health and education initiatives, provide consumers with sufficient information to make informed decisions about the alcohol they consume.
While alcohol is, in fact, a drug, foods containing alcohol are regarded as foods and are regulated in food standards. Evidence strongly suggests that the general population has a significant level of understanding of the risks and benefits of alcohol consumption. The Full Assessment report concludes that a statement on the label of alcoholic beverages to the effect that alcohol is a dangerous drug is not likely to provide any additional useful information to the consumer.
Simple, direct comparisons of tobacco warning statements with alcohol warning statements are not valid because of the differences between the two with respect to health risks and benefits. There is no level of tobacco consumption that can be considered to be safe or low risk. Therefore warning messages for tobacco could be easily devised. On the other hand, low to moderate consumption of alcohol confers significant health benefits and brief, accurate health messages that pertain to the majority of consumers relating to alcohol use would be difficult to devise.
There is no international consensus on the use of warning labels on alcoholic beverages. Nine countries, including the USA, prescribe warning statements for alcoholic beverages. Health warnings were considered and rejected by the New Zealand, United Kingdom and Canadian governments and are not used in any European country. There is a lack of evidence as to the effectiveness of warning labels on alcoholic beverages in protecting public health and safety, reducing health, social and economic costs or providing additional useful information to consumers. This lack of evidence may leave Australia open to challenge through the World Trade Organisation if the application were to be accepted.
There is an existing framework for the regulation and self-regulation of advertising and sponsorship of alcoholic beverages and also for the regulation of availability. In addition, interventions to minimise alcohol-related harm are already in place and supported by the alcoholic beverage industry.
The size and placement of existing alcohol labelling information has been considered as a part of the review of food standards and the development of a Joint Food Standards Code. ANZFA is recommending that, unless otherwise expressly permitted, all information required to be on a food label must be written or set out legibly and prominently and in the English language.
The costs to industry of labelling alcoholic beverages with a warning statement are not expected to be high. However, scientific evidence shows that warning statements are not effective in modifying at risk behaviour in relation to consuming excessive amounts of alcohol. Additionally, strategies are already in place in Australia and New Zealand based on their public health on policy on alcohol, and are seemingly effective, as demonstrated by the trend of decreasing alcohol consumption and decreasing alcohol-related costs and harm in both countries.
Requiring the labelling of alcoholic beverages with a warning statement does not fill ANZFA's objectives in relation to section 10 of the ANZFA Act. Scientific evidence shows that warning statements are not effective in modifying at risk behaviour in relation to consuming excess amounts of alcohol and would therefore not provide any additional protection of public health and safety. Information to enable consumers to make an informed decision or prevent fraud and deception is already provided by existing labelling requirements and public health policies and campaigns.
Application
On 7 July 2000 the Applicant, SWAT, lodged an application for review with the Tribunal. The application asserted that the decision of the Respondent was wrong.
Subsequently, a number of other parties came forward seeking to be made a party to the proceeding. Section 30(1A) of the Administrative Appeals Tribunal Act 1975 (the Act) permits this. Section 30(1A) reads:
Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
The parties seeking to join in the action were:
Distilled Spirits Industry Council of Australia Inc (DSIC). Application date was 20 September 2000.
Alcohol Health Watch, New Zealand (AHW). Application date was 21 September 2000.
Fetal Alcohol New Zealand Trust (FANZT). Application date was 22 September 2000.
Group Against Liquor Advertising, New Zealand (GALA). Application date was 12 October 2000.
People Against Drink Driving (PADD). Application date was 16 October 2000.
Winemakers' Federation of Australia Incorporated (WFAI). Application date was 17 October 2000.
Australian Associated Brewers (AAB). Application date was 18 October 2000.
Hearing
On 19 October 2000 the Tribunal conducted a hearing at which the Applicant, Respondent and all others who had sought to be joined as parties were represented. The New Zealand applicants participated through a telephone link into the hearing room in Canberra. Similarly, PADD was represented by Mr Donald Cameron in Melbourne who participated by telephone. SWAT was represented by Mr Charles Kilduff. ANZFA was represented by Mr Alan Anforth of counsel. DSIC, WFAI and AAB were represented by Mr David Mossop of counsel.
Prior to the hearing submissions had been lodged by the following parties:
AHW, as part of its application to be joined as a party.
FANZT, as part of its application to be joined as a party.
PADD, as part of its application to be joined as a party and in a later undated submission.
SWAT, in the form of a Statement of Issues received on 25 September 2000 and a later undated submission.
ANZFA, in the form of a Statement of Issues received on 21 September 2000 and a detailed submission dated 18 October 2000.
GALA, in the form of an e-mail message dated 16 October 2000.
The industry groups, AAB, WFAI and DSIC, in separate but similar submissions received on 18 October 2000.
At the commencement of the hearing the Tribunal provided a list of issues to all parties for each to address in presenting their arguments to the Tribunal. These were in large part derived from considerations identified in s 30(1A) and earlier relevant decisions. The issues were:
1. Are you a "person"? Proof of incorporation is required.
2. Have you made a written application to be made a party?
3. How are your interests affected by the decision?
4. How would you assist to expedite the proceedings?
5.Can you point to one or more objects of your organisation that must be protected by your application?
6.How can costs of the proceedings be contained if you are joined, especially the costs to be borne by the original parties?
7.Would you agree to be jointly represented? With who else? If so, how are the interests common?
8. How are your interests different from those of the primary parties?
9.Are you prepared to contribute to the costs if the case is appealed to the Federal Court after the AAT decision?
The parties each addressed these matters but in many cases needed to confer with others in their organisations before stating a final position. The Tribunal therefore asked that written submissions be provided after the hearing. These were provided by AHW, DSIC, AAB, WFAI, PADD and FANZT.
Legal principlesSection 30(1A) of the Act mandates several requirements before a person can be joined as a party to an application. These are:
The applicant seeking joinder must be a person. This is why the applicants for joinder in this matter were asked to respond to question 1 in the list in paragraph 18.
That person must make an application to be made a party. This is why the applicants for joinder in this matter were asked to respond to question 2 in the list in paragraph 18.
That person must have interests that are affected by the decision under review. This is why the applicants for joinder in this matter were asked to respond to question 3 in the list in paragraph 18.
The Tribunal must actively exercise its discretion to allow the person to be made a party.
The decided cases concentrate on the issues of interests affected and factors relevant to the exercise of the Tribunal's discretion.
In Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74 the Tribunal said that an application for joinder might properly be refused if a person were dilatory in applying and the proceedings could not be expeditiously resolved if the application were allowed. This is why the applicants for joinder in this matter were asked to respond to question 4 in the list in paragraph 18.
The Tribunal also said that it would be legitimate to refuse an application if the reason for seeking joinder was not related to the objects of an organisation but to further some other interest. This is why the applicants for joinder in this matter were asked to respond to question 5 in the list in paragraph 18.
Later cases such as Re City of Doncaster and Templestowe and Minister for Community Services (1987) 12 ALD 13 and Melsom v Deputy President Forrest (1996) 42 ALD 261 emphasise the interests of the primary applicant and respondent and the risk of increased cost and time delay caused by adding parties. This is why the applicants for joinder in this matter were asked to respond to question 6 in the list in paragraph 18. In one case, Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262 the Tribunal agreed to join persons as parties only if they agreed to be jointly represented. This is why the applicants for joinder in this matter were asked to respond to question 7 in the list in paragraph 18.
The Marine World case (supra) also saw the Tribunal require that the person seeking joinder had to show that its interests were different from those of the primary parties to justify joinder. This is why the applicants for joinder in this matter were asked to respond to question 8 in the list in paragraph 18. In the Melsom case (supra), in Re Scott and Secretary to the Department of Social Security (1996) 42 ALD 738, in Re Boyd and Comcare (1991) 23 ALD 392 and in Re GE Plastics (Australia) Pty Ltd and Chief Executive Officer, Customs (1998) 27 AAR 258 the Tribunal refused to join as parties persons whose interests were affected, but whose interests could be adequately represented by the primary parties to the application.
Commercial interests may suffice to justify joinder. In Comptroller-General of Customs v AAT (1994) 123 ALR 140 the Federal Court (Hill J) upheld the Tribunal conclusion that a company that had a financial interest in the outcome of the primary application had a sufficient interest. The company's interest was more than that of a mere competitor of the primary applicant.
Some general principles were suggested by Davies J in Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1, 8-9:
"In their context in sec 27 and 30, the words 'interests are affected' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest … However a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives 'real', 'genuine' and 'direct' to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrate genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review. As Brennan J said in McHattan's case [Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157]: 'However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.'"
In the recent Tribunal decision, Re North Queensland Conservation Council and Great Barrier Reef Marine Park Authority and the State of Queensland and Nelly Bay Harbour Pty Ltd (2000) AATA 924 the person seeking joinder was a Mr W P Tait. He was a university student with an ongoing interest in the environment, social justice and drug law reform. He regarded himself as a representative of students and the community generally and as speaking on their behalf on those matters and on any matters he regards as affecting the public interest. He had stood for election on policies reflecting his interests. He held a boat licence and had used the waters around Magnetic Island in the past and intended to do so in the future. The Marine Park Authority had granted permission to the State of Queensland to carry out works and construction and installation of associated facilities including pontoons and jetties at Nelly Bay, Magnetic Island. Mr Tait had applied relatively late in the proceedings to made a party.
Mr Tait said his interests were affected under s 30(1A) of the Act as he is very actively involved in public debate on environmental and planning matters and in commenting on those matters. He said his level of interest was over and above that of the average member of the community.
The Tribunal referred in that case to a test approved by the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 298 where Lord Diplock said:
"It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and in Re I G Farbenindustrie AG [1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between 'legal' and 'commercial' interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"
The full Federal Court in News Ltd and Ors v Australian Rugby Football League (1996) 139 ALR 193 endorsed Lord Diplock's formulation. In the present case that test translates into a question as to whether any of the persons seeking to be made parties to the action can show that its rights against, or liability to, ANZFA or SWAT are directly affected.
In the North Queensland Conservation Council case (supra) the Tribunal considered the scope and purpose of the Great Barrier Reef Marine Park Act 1975 to see how a decision made by the primary respondent in that case might directly affect Mr Tait, if at all. The Tribunal concluded that the role, functions and issues to be considered by the Great Barrier Reef Marine Park Authority in managing the marine park were very wide indeed. They were of concern to coastal communities but also of concern to the whole Australian community and possibly the world community. Mr Tait had shown how his interests were affected as a member of the general public with deep concerns about the environment generally and the marine park in particular. However he did not show that his interests were affected by the decision. They were not affected any more than the interests of any other member of the general community.
The Tribunal went further and concluded that, even if Mr Tait had shown that his interests were affected, the Tribunal would have exercised its discretion so as not to join him as a party. This was largely because of the lateness of his application for joinder and the likelihood that he would have little additional evidence of value to present.
As a natural person who might be described as an activist, Mr Tait was unable to take any benefit from s 27(2) of the Act. In the present matter, however, all of the persons seeking to be made parties are caught by the words of s 27(2) of the Act in that each of them is "[a]n organisation or association of persons, whether incorporated or not". That provision might have the effect of deeming any of these organisations or associations to have "interests affected by [the] decision" provided that "the decision relates to a matter included in the objects or purposes of the organisation or association".
This raises a question as to whether the definition of "interests affected" in s 27(2) can be applied in the context of s 30(1A) of the Act. The better view on the decided authorities would seem to be that the definition in s 27(2) is confined in its operation to only the process of making an application for review as the primary party. This is the relevant subject matter of s 27. This appears to the Tribunal to be the correct position. The Tribunal notes that the discussion relating to this matter in The Australian Administrative Law Service (edited by D C Pearce and M N Allars) (North Ryde, Butterworths Pty Limited) 1796.14-1998 accepts this approach to the interaction, or lack thereof, between s 27(2) and s 31(1A).
There is nothing in s 30(1A) of the Act, the subject of which is the making of another person a party to an application for review, which incorporates or replicates s 27(2). The relevant syntax in the two provisions is different. Section 27(2) speaks in terms of "interests that are affected". Section 30(1A) refers to "whose interests are affected". Section 27(2) expressly applies to unincorporated associations and allows that an unincorporated association may be a primary party to an application. Section 30(1A) prevents an unincorporated association in its own right from being made a party to a pre-existing application for review.
In the present inquiry the North Queensland Conservation Council case (supra) methodology will be applied in respect of each person seeking joinder.
The ANZFA ActThe object of the ANZFA Act is set out in s 2A (supra, paragraph 3).It takes in such matters as consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia or New Zealand, provision of adequate consumer information about food and the harmonisation of rules and regulatory measures involving Australia, New Zealand and the rest of the world.
The Authority's functions are set out in s 7 (supra, paragraph 2). These go to such matters as drafting food standards, developing industry codes of practice, promoting consistency in standards in Australia, New Zealand and the rest of the world, harmonisation of Australian laws relating to food, coordination of supervision of activities relating to food available in Australia, research and survey work, developing food education initiatives including labelling, coordination of food recalls, developing assessment policies for imported food, advising the Minister on matters related to food, and engaging in intergovernmental negotiations on matters for inclusion in standards.
The Authority's objectives in dealing with food regulatory measures are set out in s 10 of the ANZFA Act (supra, paragraph 2). These include such matters as public health and safety, provision of public information on food to help consumers make informed choices, prevention of deceptive or misleading conduct, food standards to be based on risk analysis using the best available scientific evidence, consistency between domestic and international food standards, an efficient and internationally competitive food industry and fair trading in food.
As with the North Queensland Conservation Council case (supra) there is a wide variety of persons potentially affected by, or interested in, the activities of the Authority. However, there is a particular difference. Whereas in the other case the activities were largely managerial, here it is the imposition of a standards function that is in focus. The imposition of a standard (in the form of labelling) could arguably affect the rights and liabilities of the persons making up the industry groups. It is less clear that the public interest groups will be able to show an appropriate interest above and beyond that of the general public.
In these reasons the case for each entity seeking joinder will be assessed and a decision given with reasons.
The industry groupsDSIC, WFAI and AAB were represented by the one counsel and solicitor. Their status and interests are broadly similar. In a combined submission dated 27 October 2000 they provided evidence of their status as legal persons. They also provided evidence of the coverage of their membership. Without going into detail, while none represented 100% of its segment of the alcoholic beverage industry each represented the marketers of practically all alcohol of the relevant type sold in Australia.
They gave a short summary of public education initiatives to which they contribute. One is Rethinking Drinking – You're in Control, a major national alcohol education curriculum for secondary schools developed and funded by the AAB. It is used by around 2/3 of Australia's secondary schools. Another is the Home Safely drink driving avoidance program funded by members of the DSIC and targeting teenagers and their parents. WFAI members also label wines with the statement, "Enjoy wine in moderation".
The submission reinforced that the industry groups would have joint legal representation and would adduce evidence and cross-examine and make submissions only where their interests diverge from those of the Respondent. The industry groups were prepared to abide by any costs order of a court if the matter is appealed to the courts.
In the submission received from the AAB prior to the hearing on 19 October 2000 the AAB made the following relevant points.
The decision under review relates to the first three of the AAB's aims and objectives. These are:
1.acting as a united voice on brewing industry issues, including health and social issues, marketing and advertising regulations, technical and packaging regulatory issues and product taxation issues.
2.promoting responsible drinking behaviour in the community through targeted education programs.
3.promoting community awareness of the Australian brewing industry as responsible corporate citizens who contribute to alcohol related medical research and education.
As a representative body the AAB has the same interest as its members in the issues before the Tribunal. Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 is cited as authority for this proposition.
The AAB's interests would be adversely affected by a reversal of the decision under review in that its members would be subjected to a more onerous or prejudicial labelling regime.
The AAB's members' ability to market their products would be compromised by a reversal of the decision under review.
The AAB made a detailed submission to the ANZFA when it conducted its full assessment.
In exercising its discretion as to joinder the Tribunal should decide to make the AAB a party because its joinder would not hamper the resolution of the case or cause additional expense. Additionally its input would assist the Tribunal in making the correct or preferable decision. The AAB would be able to assist the Tribunal in relation to costs flowing from altered labelling requirements and in relation to the likely impact on brewing industry self-regulatory or co-regulatory arrangements for promoting responsible drinking behaviour.
In the submission received from DSIC prior to the hearing on 19 October 2000 DSIC made the following relevant points.
The decision under review relates to paragraphs (c), (e) and (f) of DSIC's aims and objectives. These are:
(c)to deal with all matters and questions, legislation and regulations, whether Federal, State or Municipal, impinging upon the manufacture, importation, distribution, sale and consumption of spirits;
…
(e)to create a social and political climate in which the spirits industry is not prejudiced; and
(f)to do all such things and acts as may be considered desirable to protect and advance the spirits industry in Australia;
As a representative body DSIC has the same interest as its members in the issues before the Tribunal. Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 is cited as authority for this proposition.
DSIC's interests would be adversely affected by a reversal of the decision under review in that its members would be subjected to a more onerous or prejudicial labelling regime.
DSIC's members' ability to market their products would be compromised by a reversal of the decision under review.
DSIC made a detailed submission to the ANZFA when it conducted its full assessment.
In exercising its discretion as to joinder the Tribunal should decide to make the DSIC a party because its joinder would not hamper the resolution of the case or cause additional expense. Additionally its input would assist the Tribunal in making the correct or preferable decision. DSIC would be able to assist the Tribunal in relation to costs flowing from altered labelling requirements and in relation to the likely impact on brewing industry self-regulatory or co-regulatory arrangements for promoting responsible drinking behaviour.
In the submission received from WFAI prior to the hearing on 19 October 2000 WFAI made the following relevant points.
The decision under review relates to paragraphs (a), (e), (n) and (p) of the WFAI's aims and objectives. These are:
(a)To form a single organisation to represent the interests of Australian winemakers and grapegrowers of every size of production on national issues affecting the Australian wine industry.
…
(e)To represent the interests of members in relation to legislation whether pending or promulgated to the Legislature of the Commonwealth of Australia or any State or Territory thereof and all rules, regulations, proclamations, ordinances and by-laws made or promulgated thereunder and all Government and/or Department decisions made or about to be made thereunder affecting or which, in the opinion of the Federation, may affect the interests of members generally and/or their products.
…
(n)To foster and promote consumer education concerning the Australian wine industry.
…
(p)To develop a community awareness of the health benefits of the moderate consumption of wine and wine based products and to publicise results of research into wine and health to Governments and the general community.
As a representative body the WFAI has the same interest as its members in the issues before the Tribunal. Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 is cited as authority for this proposition.
WFAI's interests would be adversely affected by a reversal of the decision under review in that its members would be subjected to a more onerous or prejudicial labelling regime.
WFAI's members' ability to market their products would be compromised by a reversal of the decision under review.
WFAI made a detailed submission to the ANZFA when it conducted its full assessment.
In exercising its discretion as to joinder the Tribunal should decide to make WFAI a party because its joinder would not hamper the resolution of the case or cause additional expense. Additionally its input would assist the Tribunal in making the correct or preferable decision. WFAI would be able to assist the Tribunal in relation to costs flowing from altered labelling requirements and in relation to the likely impact on brewing industry self-regulatory or co-regulatory arrangements for promoting responsible drinking behaviour.
At the hearing the above arguments were summarised by Mr Mossop on behalf of the industry groups. He did point out clearly that the interests of the industry groups in the labelling proposal differ from those of the Authority. This is clearly so. The Authority is responsible for the protection of a range of national and public interests in relation to food whereas the industry groups, despite some public education initiatives, are primarily interested in the generally commercial concerns of their industry members.
Mr Mossop suggested that his clients might best provide a statement of facts and contentions after seeing such a statement by the Authority. This would help ensure that the industry groups provide evidence and submissions only on matters not addressed, or not addressed in the same way, by the Respondent. This suggestion seems sensible.
As noted earlier, the Applicant body had no objection to the joinder of the industry groups. Mr Kilduff, for SWAT, has taken a consistent line that SWAT favours debate on this issue and would not want to try to impede any contribution by anyone. The Respondent initially opposed the joinder of the industry groups; DSIC in a letter dated 4 October 2000, WFAI in a letter dated 17 October 2000; and AAB in a letter dated 18 October 2000. However, on 22 December 2000 the ANZFA wrote to the Tribunal to state that it neither consents nor objects to the joinder of the parties in question.
The AHW objected to the industry groups being joined. This is stated in a submission dated 26 October 2000. Their objections are because ANZFA can adequately represent these groups. They have only a pecuniary interest in the substantive issue and this does not involve protecting the standard of public health in the community, an object of the ANZFA Act. The public interest in labelling should outweigh the industry interest.
In relation to the AAB, DSIC and the WFAI the Tribunal decides that they are to be made parties to the application. The Tribunal considers that each of these persons satisfies the criteria in s 30(1A) of the Act in that:
Each is a person under law.
Each has interests that are affected by the decision.
Each has applied in writing to be made a party to the proceeding.
The Tribunal is prepared to exercise its discretion to make each of these persons a party to the proceeding.
Items 1 and 3 in that list are facts amply recorded earlier in these reasons for decision. As regards item 2 the Tribunal has decided that the interests of these persons are affected in a relevant sense by application of the test in such cases as Pegang Mining Company Ltd v Choong Sam (supra), News Ltd and Ors v Australian Rugby Football League (supra) and the North Queensland Conservation Council case (supra). In the Tribunal's view the industry groups have demonstrated that a decision to impose a labelling regime such as SWAT supports would affect their legal liabilities in relation to labelling. As the ANZFA Annual Report 1999-2000 states at page 19:
"Once [the Australia New Zealand Food Standards Council] approves food standards, they are published in the Commonwealth Gazette and the Australian Food Standards Code and are automatically adopted by reference in State and Territory law. They are separately gazetted in New Zealand by the New Zealand Ministry of Health."
Ideally, to accord with the previous authorities the industry groups' liabilities would be to the Authority. However, in the present context where ANZFA represents a bundle of public and national interests, the fact that any enforcement action is taken by other authorities would not seem to derogate from the underlying rationale for the test adopted in this case.
The Tribunal accepts the industry groups' argument that their interests differ from the Respondent's interests. Their interests are more commercial in emphasis than those of ANZFA.
The Tribunal is satisfied that the industry groups are aware of the need to contain costs and minimise any additional time or inconvenience required by the parties and the Tribunal in hearing their concerns. The Tribunal sees no reason against exercising its discretion in favour of the industry groups in this proceeding.
The Tribunal has rejected the objections to the joinder of the industry groups advanced by AHW. As stated above, ANZFA's role differs from that of the industry groups who have a legitimate interest requiring protection. The Tribunal also notes that such sections as ss 2A and 10 of the ANZFA Act require the Authority to take account of industry interests in performing its functions.
AHWIn September 2000 AHW supported its application for joinder by referring to the following matters:
The decision under review was being used to block progress of a New Zealand private member's bill and a petition on warning labels then before a select committee.
The ANZFA report justifying its rejection of the application by SWAT is seriously flawed in a number of areas.
Important relevant New Zealand research was ignored by ANZFA. Other research quoted by ANZFA was out of date. Discussions were biased and misleading.
ANZFA's handling of the benefits of alcohol consumption was wrong and misleading.
After the October hearing the AHW provided a written submission dated 26 October 2000. It addressed the following matters:
AHW was incorporated on 27 July 1995.
It had lodged a written application to be made a party.
Its interests are affected by the decision under review. In its submission AHW says that it is an Auckland based charitable trust which undertakes alcohol health promotion both nationally and on a regional level. The aims of the organisation are to reduce alcohol-related harm, promote healthy and safe drinking practices and to bring a public health perspective to the sale and supply of alcohol in New Zealand. The AHW reiterates the arguments it made in September 2000. By 26 October 2000 the private member's bill had been lost. It would require a significant event such as the overturning of the ANZFA decision to raise the political profile of the issue. This, said AHW, shows that it has a grievance that stems from the decision under review which affects it more than it would affect an ordinary member of the public.
AHW would assist to expedite the proceeding by presenting its position in an efficient and competent manner with consideration of time constraints. AHW would limit its evidence to matters not covered by the Applicant, including aspects unique to New Zealand.
AHW's organisational objectives include items that might need protection in this proceeding. These include the objective of increasing community awareness of alcohol-related issues and providing information on how alcohol-related problems can be minimised. There is also the promotion of safe and healthy drinking practices. There is the provision of input into public policy making related to alcohol issues and the development of structures for public input on the sale and supply of alcohol. The Tribunal notes that there is no explicit reference to any interest in labelling issues in the AHW literature. However, in its submission AHW claims a long history of involvement in the issue of warning labels on alcohol containers.
AHW has made submissions to ANZFA and others on warning labels.
AHW has been involved in two national petitions and three bills relating to alcohol warning labels.
AHW's interests are different from the primary parties. It is the only body seeking joinder that is funded by the Ministry of Health to provide public health advocacy on alcohol-related issues in New Zealand, including initiatives such as health warning labels. AHW is in a unique position to advocate the interests of the New Zealand Maori community which is disproportionately represented in alcohol statistics.
AHW would endeavour to keep its and SWAT's costs down if made a party. It would appear in person. It would work with SWAT to minimise costs. AHW considers its cost containment measures would also assist to minimise ANZFA's costs.
AHW sees a possibility of joining with other New Zealand groups appealing the ANZFA decision. However, the perspectives of all are unique and AHW would prefer to remain independent at the current time.
AHW is reluctant at this time to commit to funding any appeal action in the Federal Court.
The AHW's representative at the hearing was Ms Judy McAnulty. Her comments in the hearing covered similar ground to the submissions.
SWAT does not object to AHW being made a party. In a submission received on 19 October 2000 SWAT noted that AHW had reported that the liquor industry was promoting the findings of the Respondent as "detailed and meticulously researched" to block an attempt at alcohol reform in the New Zealand Parliament and to influence a government health committee of the New Zealand Parliament against alcohol reform.
On 4 October 2000 the Respondent notified the Tribunal of its objection to the joinder of AHW. It gave no reasons. On 22 December 2000 the ANZFA wrote to the Tribunal saying that it neither consents nor objects to the joinder of AHW.
In relation to AHW the Tribunal decides that it is not to be made a party to the proceeding. The Tribunal does not consider that AHW satisfies several of the criteria in s 30(1A) of the Act.
It is a person under law, so that criterion is satisfied.
It also lodged a written application to be made a party to the proceeding, so that criterion is also satisfied.
The Tribunal does not consider that AHW has interests that are affected in a fashion that satisfies s 30. The problem is that AHW's legal rights and liabilities in relation to the primary parties, even interpreted broadly, have not been affected by the ANZFA decision, nor will they be affected if the decision is reversed. The AHW appears to consider that its pre-eminent position as a body funded by the New Zealand Government to represent public interest considerations in debate on alcohol-related matters gives it a special stake in seeing the passage of legislation in New Zealand. The Tribunal cannot see that the AHW's interest in the passage of legislation is any different, in any relevant sense, from that of members of the community generally.
Even if the Tribunal had decided that the AHW's interests were relevantly affected it would be inclined to exercise its discretion so as to refuse AHW's application. This is for several reasons. First, its interests and concerns could be communicated to SWAT and SWAT would likely agree to include reference to them in its case. Second, AHW appears unwilling to agree to measures such as joint representation which would minimise costs and inconvenience to the primary parties. Third, AHW is reluctant to agree to contribute to any costs that might be incurred if the proceeding is appealed to the Federal Court.
FANZTIn September 2000 FANZT supported its application for joinder by referring to a number of matters, the most prominent being:
The ANZFA assessment minimised the risk of harm from consuming alcohol during pregnancy.
The assessment presented out of date and questionable research on alcohol consumption during pregnancy.
The assessment did not reflect drinking patterns during pregnancy as observed and reported on in New Zealand.
The estimated incidence of foetal alcohol syndrome was understated by ANZFA which also stated that its prevalence is unknown.
The financial cost of alcohol-related neurodevelopmental disorders and foetal alcohol syndrome were not included in the cost analysis.
After the October hearing the FANZT provided two written submissions respectively dated 27 October and 10 November 2000. It addressed the following matters:
FANZT was incorporated on 28 January 1999.
It lodged a written submission to be made a party.
FANZT stands to be directly affected by the contents of a public document through serious inaccuracies, anomalies, and omissions regarding alcohol-related harm in general and during pregnancy in particular. If the ANZFA assessment is allowed to stand in its present form it will seriously compromise further public health efforts to prevent prenatal alcohol brain damage and birth defects. The document will mislead people in Australia and New Zealand for years to come.
FANZT would assist to expedite the proceeding by ensuring that the matters raised by FANZT before the Tribunal are circumspect and respect the need for containment and avoidance of duplication. FANZT would consult and co-operate with colleagues.
FANZT's organisational objectives include an object of working towards the prevention of foetal alcohol syndrome and foetal alcohol effects. The FANZT has a 7,200 signature petition before the New Zealand Government Health Select Committee calling for mandatory warning labels on containers. This is directly and adversely affected by the ANZFA document. The other objectives, promotion of good practice in management of foetal alcohol syndrome and foetal alcohol effects, and provision of information, advocacy and support to assist those working with these alcohol-related foetal conditions, are also relevant and compromised by the ANZFA assessment.
FANZT is willing to ensure that there is no undue burden of costs, presumably on SWAT and ANZFA, should it be joined as a party. It agreed to share a telephone with other applicant groups in New Zealand at the hearing of these applications.
FANZT wishes to be represented separately but would be prepared to join with AHW and GALA for representation if the matter goes to the Federal Court.
FANZT sees its interests as different from those of other parties in that it is based in New Zealand and it has a knowledge of pregnancy issues not shared by the primary parties.
FANZT is reluctant to commit to funding any appeal action in the Federal Court without further consultation with colleagues in the organisation.
In the second FANZT submission the following fresh points were made:
FANZT has an interest in the decision because the contents and omissions of the ANZFA full assessment document are sufficient to undermine all future negotiations for services required for prevention and treatment of foetal alcohol syndrome and related conditions.
FANZT does not wish to participate only by providing material for SWAT to utilise in presenting its case. The FANZT material is specialised and different from that which SWAT will produce.
The industry groups should not be joined.
The FANZT's representative at the hearing was Ms Christine Rogan. Her comments in the hearing covered similar ground to the submissions. However, she emphasised that she had provided submissions to ANZFA and in connection with other inquiries.
SWAT does not object to FANZT being made a party. In a submission received by the Tribunal on 19 October 2000 SWAT said that FANZT has an interest that "goes beyond being just a concerned member of the public. Its focus is on several related debilitating conditions known as Foetal Alcohol Syndrome and the Foetal alcohol effect which syndrome and effect do not depend on any collateral cause but has only one cause, namely alcohol. It is … entirely appropriate and in the public interest that the organisation should be able to challenge the findings of the Respondent and put material, if any, before the Tribunal in respect of the matters in dispute."
On 4 October 2000 the Respondent notified the Tribunal of its objection to the joinder of FANZT. It gave no reasons. On 22 December 2000 ANZFA wrote to the Tribunal saying that it neither consents nor objects to the joinder of FANZT.
In relation to FANZT the Tribunal decides that it is not to be made a party to the proceeding. The Tribunal does not consider that FANZT satisfies several of the criteria in s 30(1A) of the Act.
It is a person under law, so that criterion is satisfied.
It also lodged a written application to be made a party to the proceeding, so that criterion is also satisfied.
The Tribunal does not consider that FANZT has interests that are affected in a fashion that satisfies s 30. The problem is that FANZT's legal rights and liabilities in relation to the primary parties, even interpreted broadly, have not been affected by the ANZFA decision, nor will they be affected if the decision is reversed. FANZT appears to consider that its pre-eminent position as a body with a particular knowledge relating to foetal alcohol syndrome gives it a special stake in seeing the passage of legislation in New Zealand. The Tribunal cannot see that FANZT's knowledge of foetal alcohol syndrome involves any risk to its legal rights and liabilities flowing from the ANZFA decision.
Even if the Tribunal had decided that FANZT's interests were relevantly affected it would be inclined to exercise its discretion so as to refuse FANZT's application. This is for several reasons. First, its interests and concerns could be communicated to SWAT and SWAT would likely agree to include reference to them in its case. Second, FANZT appears unwilling to agree to measures such as joint representation which would minimise costs and inconvenience to the primary parties. Third, FANZT is reluctant, at least at present, to agree to contribute to any costs that might be incurred if the proceeding is appealed to the Federal Court.
GALAIn September 2000 GALA supported its application for joinder by referring to the following matters:
GALA's interests are affected because it is a public health oriented educational and watchdog group seeking to reduce the adverse effects of alcohol. GALA considers that alcohol beverage labelling is part of a public health strategy to reduce harm from alcohol.
GALA suggested that the Authority's full assessment was flawed in many respects. It identified areas of concern to it.
GALA's representative at the hearing was Dr Graeme Woodfield. His comments in the hearing included the following:
GALA was incorporated on 22 May 1996.
GALA's objects involve educating the public about the harmful effects of alcohol, initiating and supporting appropriate legislation, raising public awareness about the role of alcohol advertising, and promoting bicultural partnership as defined by the Treaty of Waitangi.
GALA applied in writing (ie e-mail) to be made a party to the proceeding.
GALA sees its interests as affected by the decision because GALA has always advocated that alcohol containers should carry standard drink labels containing health and safety messages.
In helping to ensure that the proceedings are expedited GALA would assist by offering its particular knowledge of the area.
GALA might have particular standing because of its object of promoting bicultural partnership under the Treaty of Waitangi. GALA pointed out that the effects of alcohol on Maori and Polynesian populations are a major problem in New Zealand. Dr Woodfield also pointed out that GALA had long emphasised the importance of advertising in its favoured tools for dealing with alcohol concerns.
Dr Woodfield was unable to offer anything concrete in the way of how costs to the parties, especially SWAT and the Respondent, might be contained, or as to joint representation, or as to whether GALA could contribute to any costs incurred if the matter is appealed to the Federal Court.
SWAT does not object to GALA being made a party. In a submission received by the Tribunal on 19 October 2000 SWAT said that GALA "is concerned with an aspect of the misuse of alcohol which was strongly taken up by the Commonwealth Standing Committee on Social Welfare, Drug Problems in Australia – An Intoxicated Society, 1977. GALA is no doubt concerned about this aspect of alcohol's image in our society and the promotion of the product."
On 16 October 2000 the Respondent notified the Tribunal of its objection to the joinder of GALA. It gave no reasons. On 22 December 2000 the ANZFA wrote to the Tribunal saying that it neither consents nor objects to the joinder of GALA.
In relation to GALA the Tribunal decides that it is not to be made a party to the proceeding. The Tribunal does not consider that GALA satisfies several of the criteria in s 30(1A) of the Act.
It is a person under law, so that criterion is satisfied.
It also lodged a written application to be made a party to the proceeding, so that criterion is also satisfied.
The Tribunal does not consider that GALA has interests that are affected in a fashion that satisfies s 30. The problem is that GALA's legal rights and liabilities in relation to the primary parties, even interpreted broadly, have not been affected by the ANZFA decision, nor will they be affected if the decision is reversed. GALA appears to consider that its experience as a body with a longstanding interest in the labelling of alcohol containers gives it a special stake in the decision under challenge. The Tribunal cannot see that GALA's interest in the issue of labelling of alcohol containers is any different, in any relevant sense, from that of members of the community generally. Any difference is merely of degree. The Tribunal notes the interesting argument made by Dr Woodfield that GALA's interest in promoting bicultural partnership in New Zealand differentiates it from the other parties. There is some force in this. However, the decision under review in its present or any other form will not impose liabilities or confer rights on either GALA or the Maori or Polynesian populations in New Zealand.
Even if the Tribunal had decided that GALA's interests were relevantly affected it would be inclined to exercise its discretion so as to refuse GALA's application. This is for several reasons. First, its interests and concerns could be communicated to SWAT and SWAT would likely agree to include reference to them in its case. Second, GALA appears unwilling to agree to measures such as joint representation which would minimise costs and inconvenience to the primary parties. Third, GALA is reluctant to agree to contribute to any costs that might be incurred if the proceeding is appealed to the Federal Court.
PADDIn September 2000 PADD supported its application for joinder by referring to the following matters:
Its concern for the loss of life in Australia caused by the consumption of alcohol.
Australia has failed to stop the "carnage" and PADD believes that only by classifying alcohol as a depressant, mood altering drug and placing warning labels along those lines on containers can Australia begin to reduce alcohol caused trauma which is on the rise.
Alcohol is a drug and consumers need to be educated through a simple label warning that it can be dangerous at times.
On 19 October 2000, prior to the joinder hearing, PADD provided a short submission in support of its application. It made the following points:
PADD is an all-Australian association. It has been active since 1982.
PADD's primary aim is to save lives threatened by alcohol.
Between 1965 and 1975 58,000 lives were lost on Australian roads through alcohol. Some 500,000 people were severely injured. The financial costs of these deaths and injuries were $250 a year for every person in the Australian population. The total cost was something between five and sixteen billion dollars.
Labelling of alcoholic products bears directly on PADD's efforts to minimise road carnage. The clearer the labelling the more effective it will be.
PADD's representative at the hearing was Mr Donald Cameron, State Director, Victoria. His comments in the hearing included the following:
PADD became an incorporated entity in 1982 or 1983.
PADD made a written application to be joined as a party.
PADD represents a cross-section of the community interested in safe passage on roads. PADD believes education is of cardinal importance. PADD strongly emphasises public education. PADD is aware of evidence from other countries that labelling is effective if it is clear, succinct and easily read.
PADD would be happy to co-operate in any way to expedite the proceedings. It would be prepared to talk with any other bodies depending on the problems and certainly where there is common ground.
PADD sees public education as a major object and would see that as its interest to be protected by its action in being a party.
PADD had nothing to say as to how costs could be contained if it was joined as a party. Mr Cameron made the point that PADD has little money.
Mr Cameron said he would have to consult others before he could readily agree to PADD being jointly represented with other parties.
Mr Cameron needed to provide further information on any special interests PADD needed to protect.
He also needed to consult on any capacity PADD might have to contribute to possible future court costs. He reiterated that PADD is not a wealthy body.
On 27 October PADD made an additional submission. In that document PADD says that it considers this generation to be at the crossroads because other drugs such as heroin are now being mixed with alcohol in some instances. PADD notes that there is an increasing tendency for drinkers to start at a young age. PADD also registered concern about foetal damage from alcohol consumption by pregnant women.
The PADD document contained a list of PADD's activities since 1965.
The document also contained additional material on foetal alcohol syndrome.
On 13 November 2000 PADD provided a further paper which is largely an extract from the Respondent's full assessment with critical commentary attached. There is also attached a paper on drugs and alcohol in rural Australia and news clippings relating to child drinkers, alcohol caused brain damage and similar matters. There is also material on foetal alcohol syndrome and other alcohol issues.
SWAT does not object to PADD being made a party. In a submission received by the Tribunal on 19 October 2000 SWAT wrote that "[PADD] is no doubt influenced by a very strong organisation in America called Mothers Against Drink Driving (MADD). This aspect is also of concern in our society and the millions of dollars spent by Commonwealth, State and Territory governments to introduce a safe level of sobriety on our roads which appears to be a contradiction in terms, particularly having regard to the number of persons charged all over Australia with the offence of driving with the prescribed level of alcohol."
On 16 October 2000 the Respondent notified the Tribunal of its objection to the joinder of PADD. It gave no reasons. On 22 December 2000 the ANZFA wrote to the Tribunal saying that it neither consents nor objects to the joinder of PADD.
In relation to PADD the Tribunal decides that it is not to be made a party to the proceeding. The Tribunal does not consider that PADD satisfies several of the criteria in s 30(1A) of the Act.
It is a person under law, so that criterion is satisfied.
It also lodged a written application to be made a party to the proceeding, so that criterion is also satisfied.
The Tribunal does not consider that PADD has interests that are affected in a fashion that satisfies s 30. The problem is that PADD's legal rights and liabilities in relation to the primary parties, even interpreted broadly, have not been affected by the ANZFA decision, nor will they be affected if the decision is reversed. PADD appears to consider that its experience as a body with a longstanding interest in the public education about drinking problems with a particular emphasis on labelling of alcohol containers as a strategy gives it a special stake in the decision under challenge. The Tribunal cannot see that PADD's interest in the issue of labelling of alcohol containers is any different, in any relevant sense, from that of members of the community generally. Any difference is merely of degree.
Even if the Tribunal had decided that PADD's interests were relevantly affected it would be inclined to exercise its discretion so as to refuse PADD's application. This is for several reasons. First, its interests and concerns could be communicated to SWAT and SWAT would likely agree to include reference to them in its case. Second, PADD appears unwilling to agree readily to measures such as joint representation which would minimise costs and inconvenience to the primary parties. Third, PADD seems unable to afford to contribute in any substantial way to any costs that might be incurred if the proceeding is appealed to the Federal Court.
SWATHaving considered the position and submissions of each of the parties seeking to be joined it is necessary to consider finally any comments made by the primary parties that might be relevant to the resolution of this matter.
SWAT provided a statement of issues to the Tribunal on 25 September 2000. These addressed the substantive matters behind the primary application rather than the joinder of additional parties.
On 19 October 2000 SWAT provided a submission to the Tribunal supporting the joinder of AHW, FANZT, GALA and PADD. Reference has earlier been made to SWAT's reasons for supporting each of these applicants. SWAT also wrote in its submission that "Each of the five applicants under s 30(1A) of the AAT Act (the Tribunal Act) represent an aspect of what the Applicant (SWAT) and the Respondent are in apparent agreement namely that each occasion significant health, social and economic costs. … As the evidence presently stands it appears that the present application made by the Applicant is the only one of its kind, domestically and internationally. Therefore … the Applicant has consented to the five present applicants being granted standing as parties because it is SWAT's belief it is essential … the widest public participation be achieved."
The Tribunal appreciates the generous attitude of SWAT and its representative, Mr Kilduff, to the issue of joinder. SWAT has consistently maintained that it wants to foster the maximum possible public debate and information about the alcohol labelling issue. Its actions have been entirely consistent with this stance. However, while the Tribunal recognises that there is some force in the argument that each of the parties seeking joinder which favour alcohol labelling would bring a particular perspective to the discussion, for the reasons given earlier the Tribunal has decided that they will have to do this as witnesses called by SWAT in the ultimate hearing of the application or through written submissions presented via SWAT.
ANZFAOn 19 October 2000 ANZFA provided a submission to the Tribunal which made the following points:
It may be questionable whether SWAT is an incorporated association. There have been no documents produced which prove SWAT's corporate status.
The corporate status of each of the non-industry group parties seeking joinder is unclear. (As at 19 October 2000 this was correct. As the material earlier in these reasons shows, all of the relevant entities are corporations.)
As regards the industry groups the submission opposed their joinder only because allowing their joinder "points to the potential for proliferation of evidence and consumption of time and resources …. The potential exists for these parties to duplicate much of the evidence which the Respondent would call. … [I]f the Tribunal is to exercise its discretion to join these parties then their evidence should be limited to those matters upon which the Respondent has not called evidence and which the Tribunal considers relevant. The extent of such evidence should be the subject of directions prior to the hearing."
In stating above that the Tribunal supports the joinder of the industry groups it is largely on the basis suggested by the Respondent. However, the Tribunal considers that it may be unduly restrictive to prohibit the industry groups from advancing any evidence on matters in respect of which the Respondent has provided evidence. Rather, the limitation should be on the industry representatives adducing any of the same evidence as the Respondent. It is likely that the industry representatives will have more detailed evidence than the Respondent on such matters as the costs of labelling to industry and of industry's experience with existing labelling regulation. The Tribunal would very likely want to have that information. It should be noted that the Tribunal considers that the industry representatives should be made parties partly in recognition of their expressed willingness to be jointly represented and to do all possible to avoid prolonging the proceedings.
ConclusionFor the reasons stated above the Tribunal has concluded that the applications made by the Distilled Spirits Industry Council of Australia, the Winemakers' Federation of Australia and Australian Associated Brewers to be made parties to this application for review are to be granted.
For the reasons stated above the Tribunal has concluded that the applications made by the Alcohol Healthwatch, the Fetal Alcohol New Zealand Trust, the Group Against Liquor Advertising and People Against Drink Driving to be made parties to this application for review are to be rejected.
DecisionThat the Distilled Spirits Industry Council of Australia, the Winemakers' Federation of Australia and Australian Associated Brewers are made parties to this application for review.
That Alcohol Healthwatch, the Fetal Alcohol New Zealand Trust, the Group Against Liquor Advertising and People Against Drink Driving are not to be made parties to this application for review.
That the parties who have been joined are directed that, during the hearing of this application for review, they are to present evidence and submissions only on matters not addressed, or not addressed in the same way, by the Respondent.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member
Signed: James Enderbury .....................................................................................
AssociateDate of Hearing 19 October 2000
Date of Decision 21 February 2001
Counsel for Distilled Spirits Mr David Mossop
Industry Council (DSIC)
Solicitor for DSIC Weekes Preston Lawyers
Counsel for Winemakers Mr David Mossop
Federation of Aust Inc (WFAI)
Solicitor for WFAI Weekes Preston Lawyers
Counsel for Australian Mr David Mossop
Associated Brewers (AAB)
Solicitor for AAB Weekes Preston Lawyers
Counsel for Alcohol Health Ms Judith McAnulty
Watch
Counsel for Fetal Alcohol Ms Christine Rogan
New Zealand Trust
Counsel for Group Against Dr Graeme Woodfield
Liquor Advertising
Counsel for People Against Mr Donald Cameron
Drink Driving
Counsel for the Australia Mr Alan Anforth
New Zealand Food Authority
(ANZFA)
Solicitor for ANZFA ANZFA Legal Branch
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