FEDERAL COURT OF AUSTRALIA

Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173

THE COURT ORDERS THAT:

1.    Order 1 made by the primary judge on 24 April 2014 be set aside and in lieu thereof the respondent’s notice of objection to competency filed on 27 July 2012 be dismissed.

2.    The appellant’s appeal be otherwise dismissed.

3.    The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY AND ROBERTSON JJ

Introduction

1    This appeal is from the judgment and orders of a judge of this Court given and made on 24 April 2014: Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398; (2014) 141 ALD 158.

2    There was an export of livestock (goats, sheep and cattle) from Fremantle to Singapore and then to Malaysia in November and December 2008. The livestock was transported on the MV Hereford Express. The exporter was International Livestock Export Pty Ltd (“ILE”) which was the holder of an export licence.

3    By its originating application dated 5 July 2012 the present appellant sought judicial review of two decisions of the respondent Secretary. The application invoked the jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and under s 39B of the Judiciary Act 1903 (Cth) (“s 39B”).

4    The first decision, which is no longer in issue, was made on or about 3 December 2008 and gave approval to ILE to direct the Australian Quarantine and Inspection Service (“AQIS”) Appointed Veterinarian (“AAV”), Dr Lloyd Reeve-Johnson, to leave the MV Hereford Express in Singapore on or about 5 December 2008 and not accompany the livestock on that vessel from Singapore to Malaysia from 5 December 2008 to 8 December 2008. Also no longer in issue is the decision of the primary judge in respect of the present appellant’s interlocutory application filed on 6 July 2012 to extend time to lodge an application for review under the ADJR Act in relation to that first decision.

5    The second decision was stated to be dated 5 June 2012, being a decision not to issue a notice pursuant to s 23 of the Australian Meat and Live-stock Industry Act 1997 (Cth) (“the AMLI Act”) to ILE to show cause why its export licence to export livestock should not be cancelled, not renewed or suspended or ILE not be reprimanded.

6    The present appellant also filed an interlocutory application dated 24 October 2013 seeking leave to amend its originating application so as to review, in addition to the first and second decisions:

[T]he failure by the [r]espondent on and from 5 January 2009 to exercise his duty to consider whether to issue a notice pursuant to s 23 of the AMLI Act to ILE to show cause why its export licence to export live-stock should not be cancelled, not renewed or suspended or ILE not be reprimanded by reason of the conduct of ILE during the voyage of the MV Hereford Express from 27 November 2008 to 7 December 2008 from Fremantle to Singapore and Malaysia (“Voyage”).

That interlocutory application was dismissed because the primary judge concluded at [88] that it would not be utile to accede to that interlocutory application.

7    Similarly, the primary judge concluded that it would not be utile to grant the appellant leave to rely on proposed new ground 8 as follows:

8.     In the period from around 5 January 2009 to the present, pursuant to both s. 7(1) of the ADJR Act and at general law, the Respondent failed to exercise his duty to consider whether to issue ILE with a notice pursuant to s.23 of the AMLI Act to ILE to show cause why its export licence to export live-stock should not be cancelled, not renewed or suspended or ILE not be reprimanded by reason of the conduct of ILE during the Voyage.

Particulars

(a)    A duty to consider whether to issue a notice to show cause under s.23 of the AMLI Act arises from ss. 12, 16, 17, 22, 23 and 24 of the AMLI Act.

(b)    By reason of telephone calls and email exchanges between the AAV on the Voyage, Dr Lloyd Reeve-Johnson, and representatives of DAFF being Garry Cullen, Hayden Roeger and Dr Kate Makin from around 5 January 2009 and the investigation conducted by Philip Oldfield from June 2009 to March 2010 into the allegation that ILE had falsified an end of voyage report prepared by the AAV in respect of the Voyage, the Respondent and his agents became aware, or alternatively, should have become aware of the matters referred to in paragraphs (a) to (i) of the particulars to paragraph 4 above.

(c)    Despite knowledge of those matters, the Secretary renewed the export licence of ILE on about 1 November 2009, 1 November 2010 and 1 November 2011 respectively and did not consider whether to issue to ILE a notice under s. 23 of the AMLI Act to show cause why its export licence to export live-stock should not be cancelled, not renewed or suspended or ILE not be reprimanded by reason of the conduct of ILE during the Voyage.

“DAFF” signified the Commonwealth Department of Agriculture, Fisheries and Forestry as that government department existed to 2013.

8    Paragraphs (a) to (i) of the particulars to paragraph 4 of the appellant’s originating application (to which reference is made in paragraph 8(b), set out above) were as follows:

Particulars

In making the Second Decision, the Respondent failed to take into account the following considerations, each of which was known to him at the time of the making the decision:

(a)    in relation to the Voyage, ILE breached the following standards of the Australian Standards for the Export of Livestock (Version 2.1, November 2006) (“ASEL”) issued under cl 3 of the Australian Meat and Live-stock Industry (Standards) Order 2005, and thereby breached conditions of its export licence for the export of live-stock imposed by s 17(5) of the AMLI [Act]:

(i)    firstly, contrary to standard 4.5 of the ASEL, ILE did not appoint an accredited stock person for the duration of the Voyage;

(ii)    secondly, contrary to standard 5.1 of the ASEL, ILE did not have an accredited stock person on board for the Fremantle to Singapore leg of the Voyage;

(iii)    thirdly, contrary to standard 5.1 of the ASEL, ILE did not have an AAV on board for the Singapore to Malaysia leg of the Voyage;

(iv)    fourthly, contrary to standard 5.12, ILE did not cause a daily report on the health and welfare of the livestock to be provided to DAFF each day of the Voyage since only 9 daily reports were submitted for the 12 day journey. Further, none of the reports identified a stockman;

(v)    fifthly, contrary to standard 5.13, ILE did not cause an end-of-voyage report to be provided to DAFF at the end of the Malaysian leg of the journey. Only an end-of-voyage report (prepared by the AAV before he was ejected from the vessel and then altered by ILE without his knowledge) was submitted, although it appears that ILE altered the AAV’s original version of this report;

(b)    there was a real possibility that the above breaches were intentional or reckless breaches of the export licence conditions by ILE and thereby constituted offences under s 54(3) of the AMLI Act;

(c)    the conduct particularised in sub-paragraph (a)(ii) to (v) above also constituted breaches by ILE of the Approved Export Program (“AEP”) granted by the Secretary on about 24 November 2008 pursuant to the Export Control (Animals) Order 2004 in respect of the Voyage;

(d)    in failing to permit the AAV to accompany the live-stock on the Voyage until the last animal had disembarked in Malaysia, ILE committed an offence under s 9J of the Export Control Act 1982 (Cth) since that requirement had been imposed by the AEP issued by the Secretary on or about 24 November 2008 and had never been validly withdrawn;

(e)    the failure by ILE to have an accredited stockman on board for the Fremantle to Singapore leg of the Voyage and the failure by ILE to have an AAV on board for the Singapore to Malaysia leg of the Voyage showed a serious disregard by ILE of the health and welfare of the live-stock of the Voyage;

(f)    on 26 November 2008, ILE made a declaration for the purpose of obtaining an export permit that it had complied with all conditions of the export licence for the export of live-stock issued under the AMLI Act, when in fact it had not complied with a condition imposed under s 17(5) of that Act, being that it appoint an accredited stockman pursuant to s 4.5 of the ASEL;

(g)    ILE had sought to mislead DAFF about the Voyage in the following respects in around December 2008;

(i)    first, a representative of ILE, Ben Stanton, requested the AAV to under-report the rate of goat mortality, requesting that he report only 11 mortalities when there had in fact been 18;

(ii)    secondly, Ben Stanton requested the AAV to submit an end-of-voyage report on animals discharged in Malaysia even though the AAV was not on board for the Malaysian leg of the voyage;

(iii)    thirdly, the Master submitted a false report that asserted there were only 10 goat fatalities;

(iv)    fourthly, on 15 December 2008, Ben Stanton sent AQIS a forged end-of-voyage report purportedly signed by the AAV (in fact the AAV had sent his own end-of-voyage report directly to AQIS on 11 December 2008);

(v)    fifthly, ILE under-stated the number of live-stock on board the vessel in the Notice of Intention (“NOI”) submitted to the Secretary prior to the Voyage, which represented that only 350 goats would be exported. In fact, at least 362 to 367 goats were on the vessel on the second day of the voyage.

(h)    It was a real possibility that the instances of misleading conduct     referred to in sub-paragraph (g)(iii) to (v) above were done by ILE     either knowing or being reckless to their falsity and this was an offence under s 55(2) of the AMLI Act;

(i)    The Secretary’s approval on the NOI was an approval to export 350 goats and no more. To the extent that ILE exported more than 350 goats, the export was prohibited by s 2.02 of the Export Control (Animals) Order 2004 and thus was prima facie an offence under s 8 of the Export Control Act 1982 (Cth).

9    The primary judge also referred to a proposed ground 3A as follows:

3A.    Further and alternatively, as at the time of making the Second Decision, the Respondent did have a belief based upon reasonable grounds that the holder of the export licence, ILE, had contravened a condition of the licence within s 23(1)(g), but contrary to s 7 of the ADJR Act and contrary to general law, failed to exercise the duty imposed by s 23(1) of the AMLI Act to issue a notice to ILE under s 23 of the AMLI Act.

Particulars

(a)    The Respondent was of the belief that ILE had contravened conditions of its export licence since he believed the matters set out in particulars (a)(i), (ii), (iv) and (v) and (f) of ground 4 above (sic), and each of those matters was, by reason of s 17 of the AMLI Act, a breach of a licence condition.

(b)    The grounds for that belief were reasonable.

(c)    Once the Respondent formed a belief on reasonable grounds that the matter specified in s 23(1)(g) existed he was under a duty imposed by s 23 to issue the notice to ILE under s 23.

The particulars of the appellant’s originating application that are mentioned in paragraph (a) above are set out in the preceding paragraph.

The statutory provisions

10    At the relevant time, control of the export of livestock from Australia was effected under: s 7 of the Export Control Act 1982 (Cth), conferring regulation-making power for the export of prescribed goods including livestock; reg 3 of the Export Control (Orders) Regulations 1982 (Cth), giving the Minister power to make orders “not inconsistent with regulations made under the Act …”; and s 2.02 of the Export Control (Animals) Order 2004 (Cth), which read as follows:

2.02    Prohibition on export of live-stock

The export of live-stock is prohibited unless:

(a)    the exporter holds a live-stock export licence under the AMLI Act; and

(b)    subject to subsection 2.43(2), before the exporter begins sourcing, transporting or preparing the live-stock for export, the Secretary has approved a NOI and a CRMP for the export; and

(c)    the live-stock are held before export, and assembled for export, in registered premises; and

(d)    before the live-stock leave the registered premises, the exporter has the live-stock and related documents inspected, and obtains a permission to leave for loading, in accordance with Division 2.4; and

(e)    the exporter complies with the approved NOI and CRMP; and

(f)    the exporter complies with any condition of the permission to leave for loading; and

(g)    the exporter has obtained an export permit for the export, and that permit is in force; and

(h)    the live-stock are exported to the place, and on the ship, specified in the export permit; and

(i)    the exporter complies with any condition of the export permit.

Note:    For the offence of exporting prescribed goods contrary to a prohibition, see the Act, section 8. Live animals (including live-stock) are prescribed goods—see section 1.04 of this Order.

NOI is defined to mean notice of intention to export; CRMP means consignment risk management plan; and ESCAS means exporter supply chain assurance system.

11    As indicated by s 2.02 of the Order, provisions of the AMLI Act were also relevant to the export of livestock from Australia.

12    The provisions of ss 2.47, 2.48 and 2.49 of the Export Control (Animals) Order 2004 were:

2.47    Approved export programs for live-stock

(1)    An approved export program for live-stock may include requirements about any 1 or more of the following matters:

(a)    pre-export quarantine or isolation, treatment and testing of the live-stock, as required by the importing country requirements and the Australian Standards for the Export of Live-stock;

(b)    obligations on an accredited veterinarian to report on the program, keep records and make declarations in relation to compliance with the program.

(2)    The Secretary may approve an export program for an export of live-stock based on the information contained in the relevant NOI and CRMP and any other information that the Secretary has regarding the importing country requirements and the Australian Standards for the Export of Live-stock.

(3)    The Secretary must give a copy of the approved export program to the exporter concerned and may give a copy to the accredited veterinarian nominated by the exporter.

(4)    The exporter must give a copy of the approved export program to the accredited veterinarian nominated by the exporter.

2.48    When live-stock to be accompanied by accredited veterinarian

(1)    The Secretary may require, as a condition of the approval of an export program, that live-stock the subject of the export program are to be accompanied on their export voyage by an accredited veterinarian.

Note:    Failure to comply with such a requirement is an offence—see the Act, section 9J.

(2)    For the purpose of deciding whether or not to impose a requirement under subsection (1), the Secretary may take into account any relevant matter including:

(a)    the relevant importing country requirements; and

(b)    the exporter’s record as an exporter of live-stock; and

(c)    the condition of the vessel on which the live-stock are to travel; and

(d)    the weather and time of year; and

(e)    the kind of live-stock being exported; and

(f)    market considerations.

2.49    Variation of approved export programs for live-stock

(1)    The Secretary may vary an approved export program if:

(a)    the importing country requirements relevantly change; or

(b)    the standards of the Australian Standards for the Export of Live-stock relevantly change; or

(c)    any other relevant circumstance changes; or

(d)    the Secretary is of the opinion that the variation is necessary to maintain the health or welfare of the relevant live-stock; or

(e)    the exporter or accredited veterinarian concerned so requests.

(2)    In considering whether to approve a variation requested by an exporter or accredited veterinarian, the Secretary must have regard to:

(a)    the importing country requirements; and

(b)    the relevant standards of the Australian Standards for the Export of Live-stock; and

(c)    the health and welfare of the live-stock concerned; and

(d)    any other relevant circumstance.

(3)    If the Secretary varies an approved export program, he or she must give a copy of the approved export program, as so varied, to the exporter concerned, and may give a copy to the accredited veterinarian nominated by the exporter.

(4)    The exporter must give a copy of the approved export program, as so varied, to the accredited veterinarian nominated by the exporter.

13    The licence provisions of the AMLI Act were:

10    Grant of export licence

(1)    Subject to this Part, the Secretary may grant a person a licence, in writing, to export meat from Australia or to export live-stock from Australia.

(2)    The Secretary may, under subsection (1), grant a person both kinds of licence.

(3)    Subsection (1) does not prevent the Secretary from giving directions under section 17 restricting the kind of meat or live-stock export business, as the case may be, that the holder of an export licence is to be permitted to carry on under the conditions of the licence.

11    Application for licence

(1)    An application for an export licence must be made in accordance with the regulations.

(2)    An applicant for an export licence must pay the prescribed fee in respect of the application:

(a)    when the application is lodged; or

(b)    at any later time permitted under the regulations.

(3)    If a person has given the Secretary information or a document in connection with an application for an export licence and, before the application is granted or refused:

(a)    a change happens so that the information, or anything stated in the document, ceases to be correct in relation to a matter; or

(b)    the person becomes aware that the information, or anything stated in the document, is incorrect in relation to a matter;

the person must, within 7 days after the change happens or the person becomes so aware, as the case may be, give the Secretary a written statement setting out the correct particulars of the matter.

(4)    A person who fails to comply with subsection (3) is guilty of an offence punishable, on conviction, by imprisonment for not longer than 12 months.

Note:    Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a maximum fine of an amount that is 5 times the maximum fine that could be imposed on an individual convicted of the same offence.

12    Requirements for grant of licence

(1)    The Secretary must not grant an export licence unless satisfied that:

(a)    if the applicant is an individual, the applicant is:

(i)    a person of integrity; and

(ii)    competent to hold the licence; and

(iii)    a person of sound financial standing; and

(b)    if the applicant is a body corporate, the applicant is:

(i)    a body corporate of integrity; and

(ii)    competent to hold the licence; and

(iii)    a body corporate of sound financial standing; and

(c)    each person who participates or would participate, in the management or control of the applicant’s meat or live-stock export business or proposed meat or live-stock export business is a person of integrity; and

(d)    the applicant is, and is likely to continue to be, able to comply with the conditions to which the licence, if granted, would be subject; and

(e)    the granting of the licence to the applicant would not, for any other reason, be contrary to the interests of the industry.

(2)    The regulations may prescribe the matters to which the Secretary is to have regard for the purpose of satisfying himself or herself about the matters referred to in subsection (1).

(3)    Without limiting subsection (2), for the purpose of satisfying himself or herself about the matters referred to in subsection (1) in relation to an application for a live-stock export licence, the Secretary may have regard to the extent to which the applicant has complied with any requirements of or under the Export Control Act 1982, including any conditions or restrictions:

(a)    to which a licence or permission under that Act, to export prescribed goods that are live-stock, was subject; or

(b)    that otherwise relate to the export of prescribed goods that are live-stock.

13    Notice of refusal to grant licence

If the Secretary refuses to grant an application for an export licence, the Secretary must notify the applicant in writing of the refusal.

14    By s 21 an export licence, subject to Part 2 of the AMLI Act, remained in force for the period (which had to be at least one year) stated in the licence, but could be renewed under s 22. Section 22, which was important for the appellant’s case, was in the following terms:

22    Renewal of licence

(1)    The holder of an export licence may, not earlier than 3 months and not later than one month before the licence is due to expire, apply to the Secretary for the renewal of the licence.

(2)    The Secretary may extend the period within which an application for the renewal of an export licence may be made, whether or not the period has ended or the licence has expired.

(3)    An application for the renewal of an export licence must be made in accordance with the regulations.

(4)    An application for renewal of an export licence must pay the prescribed fee in respect of the application when the application is lodged, or at any later time permitted under the regulations.

(5)    If the holder of an export licence duly applies for the renewal of the licence, the Secretary must, in writing, renew the licence unless the Secretary has determined under paragraph 24(1)(d) that the licence not be renewed.

(6)    Subject to this Part, an export licence that has been renewed continues in force for the period (which must be at least one year) specified in the renewal instrument, but may be further renewed under this section.

(7)    A renewal of an export licence does not take effect if the licence is cancelled under paragraph 24(1)(c).

(8)    An export licence that is suspended may be renewed under this section, but the renewal does not take effect until the suspension stops.

(9)    Application may be made to the Administrative Appeals Tribunal for review of a decision by the Secretary under subsection (2).

15    Sections 23 and 24 of the AMLI Act, which were central to the appellant’s case, provided:

23    Notice to licence holder to show cause

(1)    If the Secretary has reasonable grounds for believing, in relation to an export licence, that:

(a)    if the licence is held by an individual, the holder of the licence has ceased to be:

(i)    a person of integrity; or

(ii)    competent to hold the licence; or

(iii)    a person of sound financial standing; or

(b)    if the licence is held by a body corporate, the holder of the licence has ceased to be:

(i)    a body corporate of integrity; or

(ii)    competent to hold the licence; or

(iii)    a body corporate of sound financial standing; or

(c)    a person who has begun to participate in the management or control of the meat or live-stock export business of the holder of the licence is not a person of integrity; or

(d)    a person who participates in the management or control of the meat or live-stock export business of the holder of the licence has ceased to be a person of integrity; or

(e)    information or a document given to the Secretary in connection with the application for the licence was false or misleading and, if the information or document has not been false or misleading, the licence would not have been granted; or

(ea)    if the licence is a licence to export live-stock and the holder was required to make a declaration of a kind mentioned in subsection 7(3B) of the Export Control Act 1982 as a condition subject to which a licence or permission to export under that Act was granted—the holder made any such declaration falsely; or

(f)    the holder of the licence failed to comply with subsection 11(3) in relation to the application for the licence and, if the failure had not occurred, the licence would not have been granted; or

(g)    the holder of the licence has contravened a condition of the licence;

the Secretary may give a written notice under this section to the holder of the licence.

(1A)    Without limiting subsection (2), for the purpose of determining whether a circumstance mentioned in subsection (1) has occurred in relation to a live-stock export licence, the Secretary may have regard to the extent to which the holder has complied with any requirements of or under the Export Control Act 1982, including any conditions or restrictions:

(a)    to which a licence or permission under that Act, to export prescribed goods that are live-stock, was subject; or

(b)    that otherwise relate to the export of prescribed goods that are live-stock.

(2)    The regulations may prescribe the matters to which the Secretary is     to have regard in determining whether a circumstance referred to in     paragraph (1)(a), (b), (c) or (d) has occurred.

(2A)    If paragraph 25A(2)(b) applies, the Secretary may give a written notice to the holder of the licence mentioned in that paragraph.

(3)    A show cause notice must:

(a)    if subsection (1) applies—state the grounds on which the Secretary formed the belief because of which the notice is given; and

(aa)    if subsection (2A) applies—state the grounds on which the Secretary gives the notice; and

(b)    include a statement to the effect that the holder of the relevant licence may, within 14 days after the day on which the notice is given to the holder, give the Secretary a written statement showing cause why the licence should not be dealt with under subsection 24(1).

(4)    A show cause notice to the holder of an export licence may state that the licence is suspended, if it appears to the Secretary to be necessary or desirable in the interests of the industry to suspend the licence under this section.

(5)    If a show cause notice to the holder of an export licence states that the licence is suspended, the licence is suspended from the time the notice is given to the holder of the licence.

(6)    If an export licence is suspended under this section, the licence period is taken to include the period of the suspension.

(7)    If an export licence is suspended under this section:

(a)    the Secretary may at any time revoke the suspension; and

(b)    if the licence has not been dealt with under subsection 24(1) within 60 days after the day on which the licence is suspended—the suspension lapses at the end of that period.

(8)    Application may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary to suspend an export licence under this section.

(9)    In this section:

licence period, in relation to an export licence, means the period during which the licence is to remain in force.

24    Powers of the Secretary in relation to licence

(1)    If the Secretary:

(a)    has given a show cause notice to the holder of an export licence; and

(b)    after considering any written statement by the holder of the licence given within the period mentioned in paragraph 23(3)(b), is satisfied:

(i)    if subsection 23(1) applies—of any of the matters mentioned in subsection 23(1); or

(ii)    if subsection 23(2A) applies—that he or she should take action in relation to the licence under any of paragraphs (c) to (g) of this subsection;

the Secretary may, by written notice given to the holder of the licence:

(c)    cancel the licence; or

(d)    if the licence is about to expire—determine that the licence not be renewed; or

(e)    if the licence is not already suspended—suspend the licence for the period specified in the notice; or

(f)    if the licence is already suspended—further suspend the licence for the period specified in the notice; or

(g)    reprimand the holder of the licence.

(2)    If the Secretary:

(a)    has given a show cause notice to the holder of an export licence; and

(b)    decides not to take any further action in the matter;

the Secretary must, by written notice given to the holder, tell the holder of the decision and, if the licence is suspended under section 23, revoke the suspension.

(3)    The Secretary may suspend or further suspend an export licence under subsection (1) for a period ending after the day on which the licence, if not renewed, would expire.

(4)    Application may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary under subsection (1).

16    The Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) provided:

Meaning of may

33(2A)    Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

By s 2, the application of the Acts Interpretation Act or a provision of that Act to an Act or a provision of an Act is subject to a contrary intention.

The judicial review application

17    The grounds of review in the present appellant’s judicial review application, which were considered and rejected by the primary judge and remain relevant on this appeal, are summarised below. Ground 1 related to the first decision, which is no longer in issue.

18    Ground 2 alleged that the second decision involved the taking of irrelevant considerations into account on the basis that whether “new evidence” had been provided to the respondent was an irrelevant consideration. “New evidence” was referred to in the respondent’s letter dated 5 June 2012 in answer to the letter on behalf of the appellant dated 11 May 2012. We set out both of those letters below at [37] and [38]. Ground 3 put a different legal character on the same material and alleged that the imposition of the requirement that “new evidence” be provided to the respondent was the application of a rule or policy without regard to the merits of the particular case.

19    Ground 3A is set out at [9] above. In short it alleged that the respondent did have a belief based upon reasonable grounds that ILE had contravened a condition of the licence but failed to exercise the duty imposed by s 23 of the AMLI Act to issue a notice to ILE.

20    Ground 4 alleged that, to the extent to which the second decision was based upon a conclusion that the respondent did not have a belief based upon reasonable grounds as to the existence of one of the matters identified in s 23(1), it was an improper exercise of the power since it involved a failure to take into account relevant considerations. Nine considerations were set out: see [8] above. It was alleged that the respondent failed to take those considerations into account and each such consideration was known to him at the time of making the second decision. Those considerations were contentions on the facts that: ILE breached a number of standards of the Australian Standards for the Export of Livestock (“ASEL”) and thereby breached conditions of its export licence; there was a real possibility that those breaches were intentional or reckless breaches and thereby constituted offences under s 54(3) of the AMLI Act; the conduct also constituted breaches by ILE of the Approved Export Program; ILE committed an offence under s 9J of the Export Control Act; the failure to have an accredited stockman on board for the Fremantle to Singapore leg and the failure to have an AAV on board for the Singapore to Malaysia leg showed a serious disregard of the health and welfare of the livestock on the voyage; ILE made a false declaration for the purpose of obtaining an export permit; ILE had sought to mislead the Department about the voyage in certain specified respects; it was a real possibility that the instances of misleading conduct were done by ILE either knowing or being reckless to their falsity and this was an offence under s 55(2) of the AMLI Act; the respondent Secretary’s approval was to export 350 goats and no more: to the extent that ILE exported more than 350 goats, the export was prohibited by s 2.02 of the Export Control (Animals) Order and thus was prima facie an offence under s 8 of the Export Control Act.

21    Ground 5 alleged that, to the extent to which the second decision was based upon a conclusion that the respondent did not have a belief based upon reasonable grounds as to the existence of one of the matters identified in s 23(1), it was a finding of jurisdictional fact infected by illogicality and irrationality and an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power. This was particularised on the basis that, given the particulars in ground 4, any conclusion by the respondent that he did not have a belief based upon reasonable grounds as to the existence of one of the matters identified in s 23(1) was illogical or irrational or so unreasonable that no reasonable person could have come to that view.

22    Ground 6 alleged a failure to take into account relevant considerations “to the extent that the Second Decision was the exercise of a discretionary power not to issue a notice under s 23(1) of the AMLI Act despite forming a belief on reasonable grounds of the existence of one of the matters specified in s 23(1)”. Each of the particulars to ground 4 was alleged to be a relevant consideration.

23    Ground 7 alleged that “to the extent that the Second Decision was the exercise of a discretionary power not to issue a notice under s 23(1) of the AMLI Act despite forming a belief on reasonable grounds of the existence of one of the matters specified in s 23(1)”, it was an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power. Again this was based on the existence of, and the respondent’s alleged knowledge of, each of the matters particularised in ground 4.

24    Ground 8 is set out at [7] above. In short it alleged that the respondent Secretary failed to exercise his duty to consider whether to issue ILE with a notice pursuant to s 23.

25    We set out the relief sought, particularly because it is relevant to the question of the appellant’s standing. In their widest form, the orders sought at first instance were as follows:

1.    Declare that the First Decision was not authorised by the Export Control Act 1982 (Cth), the Export Control (Orders) Regulations 1982 (Cth) or the Export Control (Animals) Order 2004, or alternatively, was not authorised by law.

2.    Declare that the decision made by the Respondent’s delegate on 5 June 2012 not to issue a notice pursuant to s. 23 of the Australian Meat and Live-Stock Industry Act 1997 (Cth) (“AMLI Act”) to International Livestock Export Pty Ltd (“ILE”) to show cause why its export licence to export live-stock should not be cancelled, not renewed or suspended or ILE not be reprimanded was not authorised by law because the Respondent’s delegate took into account an irrelevant consideration, or alternatively, failed to take into account reasonable (sic) considerations, or alternatively, was so unreasonable that no reasonable person could have come to that decision.

2AA.     An order in the nature of mandamus directing the Respondent to issue a notice to ILE under s 23(1) of the AMLI Act.

2A.     Declare that in the period from around 5 January 2009 to the present the Respondent failed to exercise his duty to consider whether to issue ILE with a notice pursuant to s 23 of the AMLI Act to ILE (sic) to show cause why its export licence to export live-stock should not be cancelled, not renewed or suspended or ILE not be reprimanded by reason of the conduct of ILE during the Voyage.

3.    Alternatively to 2AA, an order directing the Respondent to consider whether to issue a notice to ILE under s 23 of the AMLI Act according to law

26    ILE was not, and has never been, a party to the proceedings.

The grounds of appeal

27    The grounds of appeal were as follows.

28    Grounds 1 and 2 concerned the appellant’s standing.

29    Ground 3 took issue with the finding of the primary judge at [48] that the respondent’s letter dated 5 June 2012 did not contain the totality of the respondent’s reasons for the decision not to issue a show cause notice to ILE pursuant to s 23(1) of the AMLI Act.

30    Ground 4 put in issue the correctness of the primary judge’s order refusing to grant leave to the appellant to file the Amended Originating Application for Judicial Review dated 24 October 2013, the appellant contending that, contrary to the primary judge’s conclusion, there was utility in grounds 3A and 8 of the judicial review application.

31    Ground 5 contended that the primary judge erred in failing to find that s 23 of the AMLI Act gave rise to a mandatory duty on the part of the respondent to issue a show cause notice to a licensee where the respondent had formed a belief on reasonable grounds that one of the matters specified in s 23(1)(a)–(g) existed, and accordingly failed to find that the respondent had breached that mandatory duty by not issuing a show cause notice to ILE.

32    Ground 6 contended that the primary judge erred in failing to find that the second decision was an improper exercise of the power conferred by s 23(1) of the AMLI Act since it involved the taking into account of an irrelevant consideration, being the consideration that the respondent could not consider whether to issue a show cause notice unless “new evidence” was provided to him. Ground 7 had the same basis but was categorised as an error in failing to discern an improper exercise of the power involving the exercise of a discretionary power in accordance with a rule or policy (being a requirement that “new evidence” be provided) without regard to the merits of the particular case.

33    Grounds 8 and 9 contended that the primary judge erred in failing to find that the respondent was under a duty to consider whether to issue a show cause notice under s 23 of the AMLI Act and that from around 5 January 2009 to the present the respondent failed to exercise his duty to consider whether to issue ILE with such a show cause notice.

34    We set out grounds 10 and 11 verbatim (omitting particulars):

10.    His Honour erred in failing to find that to the extent the Second Decision was based upon a conclusion that the Respondent did not have a belief (on reasonable grounds) as to the existence of one of the matters identified in s.23(1)(a) to (g) of the AMLI Act, it was an improper exercise of the power conferred by s.23 of the AMLI Act since it involved a failure to take into account relevant considerations within the meaning of s.5(2)(b) of the ADJR Act, being those considerations identified in the particulars to ground 4 of the Application for Judicial Review.

11.    His Honour erred in failing to find that to the extent the Second Decision was based upon a conclusion that the Respondent did not have a belief (on reasonable grounds) as to the existence of one of the matters identified in s.23(1)(a) to (g) of the AMLI Act, it was a finding infected by illogicality and irrationality and further and alternatively, an improper exercise of the power conferred by s.23 of the AMLI Act since it was, within the meaning of s 5(2)(g) of the ADJR Act, an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power.

35    Grounds 12 and 13 were not pressed.

36    Ground 14 concerned the costs orders made by the primary judge.

The facts

37    By letter sent by email on 11 May 2012, the Animal Welfare Community Legal Centre, acting for the appellant, wrote to the Secretary as follows:

We act for Animals’ Angels, an international animal protection organization which regularly monitors the loading of live export shipments in Australia, and whose representative is regularly in touch with your officers concerning live export matters.

We refer to a live export voyage (“the Voyage”) of the Hereford Express, from Fremantle to Singapore and Malaysia. Documents obtained under Freedom of Information legislation by Animals’ Angels and published on your department’s website show the ship departed Fremantle on 27 November 2008 and arrived in Singapore on 5 December 2008; the voyage was completed in Malaysia on 7 December 2008. The exporter was International Livestock Export Pty Ltd (“ILE”).

We have also seen an email dated 9 May 2012 from Dean Merrilees of your Department concerning the Voyage and have had discussions with Dr Lloyd Reeve-Johnson, who was the onboard AQIS-approved veterinarian (“AAV”) on the Voyage.

The documents, the email and the discussions in our view provide evidence that:

•    there was no stockman on board the ship for at least the leg of the journey from Fremantle to Singapore, and possibly from Singapore to Malaysia;

•    documentation relating to the voyage and supplied to AQIS show that 350 goats were loaded onto the vessel, whereas in fact there were between 362 and 367 goats loaded; there is evidence in our view that this loading of extra animals was deliberate;

•    the Approved Export Program (“AEP”) stated the AAV was required to remain on board the ship until it completed its journey in Malaysia. The exporter ordered the AAV to leave the ship in Singapore, which he did. The email shows the AEP was not amended. It therefore appears to us that not only was there possibly no stockman aboard the ship on its journey from Singapore to Malaysia, but that there was no AAV on the ship during that part of the journey. We note, however, the email claims a stockman joined the ship in Singapore. The absence of the AAV for the last phase of the Voyage is a clear breach of the AEP. It appears to us that your Department colluded with the exporter in removing the AAV from the ship in Singapore, in contravention of the AEP.

•    the same representative of the exporter (Ben Stanton) who had told the AAV to leave the ship in Singapore on 9 December 2008 requested that the AAV report on animals discharged in Malaysia, even though the AAV was not on board ship for the leg of the journey from Singapore to Malaysia;

•    the exporter (through Ben Stanton) demanded that the AAV under-report the goat mortality on the Fremantle-Singapore leg of the voyage. Actual goat mortality was at least 18; the exporter demanded that the AAV report 11 mortalities;

•    two daily reports given by the AAV to the Master of the ship were never submitted to AQIS;

•    the Master’s report under-reported the goat mortalities, claiming there were 10, when in fact there were 18;

•    on 11 December 2008 the AAV sent an end of voyage report (although it was in fact only for the section of the voyage from Fremantle to Singapore) directly to AQIS, which report recorded the goat mortality at 18 deaths. The AAV also sent a copy of that report to Ben Stanton at the exporter.

•    it appears to us that the exporter, through Ben Stanton, forged the report from the AAV. The seeming forgeries included altering the goat mortality recorded in the report from 18 deaths to 11 deaths. That seemingly forged report, purportedly signed by the AAV, was sent to AQIS by Ben Stanton of the exporter on 15 December 2008.

We are aware that AQIS purportedly investigated the complaint from the AAV regarding the altered report, and decided not to take any further action. There is a mortality investigation report on the Department website. It refers, mistakenly, to daily stockman’s reports (there was no stockman at the relevant time, so there were no such reports) and erroneously to the end of voyage report. Clearly, given the AAV was forced to leave the ship in Singapore, there was no end of voyage report as required by the relevant legislation and standards. We are surprised your investigation did not detect this, or indeed any of the other discrepancies.

Our view is that there have been several breaches of the Australian Standards for the Export of Livestock (version 2.1, applicable at the relevant time) and other law governing live export. Clearly, as there is no independent observer on live export voyages, the integrity of the whole monitoring and legislative system depends on accurate recording by the AAV. The presence of a stockman, as required by Standard 5.1 of the Australian Standards for the Export of Livestock, is equally an essential part of the procedures intended to assure the welfare of animals on board live export vessels. It appears to our client these mechanisms have been subverted in this instance. Furthermore, AQIS was aware, or should have been aware, of all the events referred to above. In the view of our client it is completely unacceptable that the Department has taken no action against the exporter for what appear to be serious breaches of the law.

Our client therefore demands that you take immediate action to suspend the export licence of the exporter International Livestock Export Pty Ltd, and the export licences of companies which share directors with that company; those companies are Emanuel Exports Pty Limited and EMS Rural Exports Pty Limited. Furthermore, our client demands that you immediately issue a notice to those companies requiring them to show cause why their export licences should not be cancelled.

We require that you respond to this request by no later than close of business on 1 June 2012, failing which we will regard our client’s request as having been refused.

Please do not hesitate to contact me if you wish to discuss this.

38    The Acting Secretary’s reply dated 5 June 2012 was as follows:

Thank you for your correspondence of 11 May 2012 on behalf of Animals’ Angels about the voyage of the Hereford Express in November and December 2008 and requesting that the Department of Agriculture, Fisheries and Forestry take immediate action against the exporter involved.

The department takes its role as regulator of livestock exports seriously. As you are aware, the voyage has been the subject of two departmental investigations.

I do not agree with your assessment that there is evidence that warrants the department taking immediate action against the exporter. Your correspondence does not include any new evidence to support your allegations.

Prior to discharge into Singapore, the exporter sought and received approval from the department for the AQIS-accredited veterinarian (AAV) to leave the vessel after the animals were discharged in Singapore and be replaced by an accredited stockman. The initial presence of an AAV on the voyage was necessary only to satisfy Singapore’s import requirements. The department gave approval through email exchange rather than by a varied Approved Export Program (AEP). Under division 2.49 of the Export Control (Animals) Order 2004, a varied AEP should have been issued to the exporter. However, the decision-making was appropriate and sufficiently documented and this oversight had no impact on welfare outcomes. It is also clear that this arrangement was made in advance of the notifiable incident. Therefore, I do not agree with your claim that the department colluded with the exporter.

It is apparent that the department managed the voyage as if it was a short-haul voyage. However, as the voyage ended up taking more than 10 days, daily reports for the final three days of the voyage from Singapore to Malaysia and an end-of-voyage (EOV) report covering the final leg of the journey should have been, but were not, received by the department. Due to the mortality investigation, the department did receive the daily reports completed by the AAV for the Fremantle to Singapore leg of the journey (submitted on a stockman’s daily report form). However, the department did not receive daily reports for the final three days to Malaysia. The EOV report was completed by the AAV, who left the vessel in Singapore, and as such it does not cover the final leg of the journey to Malaysia. It is unclear why this was not identified and addressed by the program at the time.

I note that there was no stockman on board during the Fremantle to Singapore segment of the journey and that proper policy — which requires that a stockman, in addition to the AAV, be on board — was not followed. The AAV’s report to the department demonstrates that he was able, in concert with the crew of the vessel, to deliver the level of care that a stockman would have delivered as well as discharge his professional responsibilities. At the time of the voyage exporters were not required to list the stockman in their Notice of Intention (NOI) application. As you are aware, this became a requirement in December 2009.

Since then, an internal audit identified a number of areas for improvements in the program’s administration. These have been implemented and include:

•    The name of the accredited stockman must be provided as part of the NOI and checked to ensure they have a current accreditation.

•    A work instruction and checklist have been developed to ensure that daily and EOV reports are provided, assessed and followed up in cases where they have not been submitted.

•    AAVs must submit reports to the department directly, and the internal work instructions have been updated to better monitor daily and EOV reports.

Where an exporter has requested that the requirement for an accredited stockman be waived because an AAV is on board, it has been refused. Advice has been given in these circumstances that an AAV who is also an accredited stockman can be used.

The department addressed the difference in goat mortalities reported during the mortality investigation. The AAV reported 18 goat mortalities, the amended EOV report 11 and the master of the vessel 10. Any of the three figures would have triggered the investigation of a mortality event. The department used the AAV’s figure of 18 mortalities. It does, however, recognise that counts must be accurate. I note your advice that the AAV, with the aid of a crew member, was not able to give the precise number of goats on the vessel.

The department has already investigated the serious issue of the exporter amending the AAV’s EOV report. The department referred this to its Compliance and Investigation Branch in 2009. Under the Commonwealth’s prosecutions policy, it can commence a prosecution only if there is a reasonable prospect of conviction. The Compliance and Investigation Branch advice did not support this prospect so the department took no further action.

To act on your request to suspend the exporter’s licence, I would need to issue a show cause notice. To do that I would need to have reasonable grounds for believing that any of the circumstances listed in section 23 of the Australian Meat and Livestock Act 1997 had occurred and that this action was warranted in the circumstances. On the evidence you have provided, I do not consider I am in a position to take such action. If you have any new evidence to support your client’s allegations I urge you to provide it to me for consideration.

Thank you again for your correspondence.

The grounds of appeal

39    We turn now to consider the grounds of appeal. We consider grounds 1 and 2 concerning the appellant’s standing at [101]–[121] below.

Ground 3

40    This ground concerns the following finding of the primary judge:

[48]    I am unable to accept the applicant’s allegation that the delegate believed he needed new evidence in order to exercise the s 23(1) power. It assumes that the 5 June 2012 letter identifies the universe of the delegate’s reasoning process when it is only an item of correspondence.

41    The appellant took issue with the finding that the respondent’s letter dated 5 June 2012 did not contain the totality of the respondent’s reasons for the decision not to issue a show cause notice to ILE pursuant to s 23(1) of the AMLI Act.

42    In its written submissions, the appellant contended that the primary judge’s finding was contrary to the overwhelming weight of the evidence. It was submitted that on its face the letter appeared to constitute the reasons, because: (1) it offered an explanation as to why the decision was made; and (2) it offered a clear reason for declining to take action, being that the appellant had not provided any “new evidence”. To suggest that the letter did not contain the Acting Secretary’s reasons was, the appellant submitted, against the content, structure and tone of the letter. The appellant submitted the primary judge failed to consider the circumstances in which the letter came into existence. In particular, the appellant noted that it had sent a written request to the respondent to exercise a statutory power. The appellant contended that a series of high-level meetings had occurred in which the Acting Secretary had participated where the appropriate response to the appellant’s request was discussed; and that considerable attention had been devoted by departmental officers to carefully crafting the terms of the letter. These matters pointed, the appellant said, to the fact that the letter encapsulated the reasoning process. This evidence was not taken into account, the appellant submitted, by the primary judge on this question. The appellant also submitted that the primary judge failed to draw inferences from the discovery material and what was not produced. Category 14 of the Discovery Orders (“[d]ocuments being, referring to or evidencing any consideration given by the Respondent … to issuing a notice to ILE under s 23 of the AMLI Act …”) would, the appellant said, have picked up any documents in addition to the letter that recorded the Acting Secretary’s reasons. The appellant contended that the Court ought to have concluded that, aside from the letter, there was no written record of the reasons. Further, the appellant submitted that the relevant evidence was to be “weighed in the context of there being no contradictory evidence from the Respondent”, citing Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; (2003) 76 ALD 610 at [45]. In that case Carr J, for the Full Court, said:

[45] In my view, the statement by the departmental officer in that letter that the enclosure “sets out the reasons for the decision” does not, on its own, convert the briefing paper either into a statement of reasons which constitutes notice within the meaning of s 501G(1)(e) or, simply, the giving of reasons. But I regard it as a relevant piece of evidence to be weighed first in the context of there being no contradictory evidence from the respondent and secondly (and in my view more importantly) in conjunction with an assessment of the briefing minute itself.

43    The respondent submitted that the reasons for the contrary conclusion, referred to by the primary judge, should be preferred. The respondent contended that the letter:

(i)    was neither described as a “decision” nor as “reasons for a decision”;

(ii)    was not issued pursuant to a statutory duty to give reasons for a decision;

(iii)    was not issued in response to some request made under a statutory facility for the making and receipt of requests by interested parties;

(iv)    was not issued to the person whose interests would have been substantially affected by any decision, but to a third party: there may be very good reasons why the Acting Secretary would not disclose all of the material bearing on any decision to a third party such as the appellant;

(v)    ranged further afield than matters bearing specifically on a s 23(1) decision: for example, it addressed systemic changes which had been implemented following an audit.

The respondent submitted that while the letter may have “offered an explanation” there was no reason to assume that the explanation offered was the totality of the explanation for making any s 23(1) decision, rather than a response to the specific concerns raised by the appellant.

44    In referring to the respondent’s submissions at [44], the primary judge apparently accepted that the appellant had not sought formal reasons for decision and that the 5 June 2012 letter could rise no higher than what it was: departmental correspondence, and a Jones v Dunkel inference could not fill the gap in the appellant’s case, it being the appellant who bore the onus: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67], [69]–[70] per Gummow J.

45    We agree with the conclusion of the primary judge. The letter was not a statement of reasons in form but was correspondence replying to the appellant’s letter. Neither was it a statement of reasons in substance. That is to say, both in its terms and in its context there is no reason to read it as setting out the entirety of the respondent’s reasoning. We would not regard the paragraph of Long v Minister for Immigration and Multicultural and Indigenous Affairs on which the appellant relies, and which we have set out at [42] above, as suggesting a different conclusion. The letter is a relevant piece of evidence to be weighed according to its text and context. In our view the primary judge was correct not to draw any inference from the absence of evidence from the author of the letter. Considered as a separate ground of review, no error in this respect has been established by the appellant. The meaning to be given to the letter remains to be considered in relation to the other grounds of appeal.

46    Ground 3 is not made out.

Ground 4

47    We will consider this ground by reference to the substance of each of the proposed amendments to which it relates: see [62] and [94] below.

Ground 5

48    This ground proceeds on the basis that the respondent had formed a belief on reasonable grounds that one of the matters specified in s 23(1)(a)–(g) existed. On that basis the appellant contends that as a matter of statutory construction the word “may” in s 23 gives rise to a mandatory duty on the part of the respondent to issue a show cause notice. Did the respondent have a belief on reasonable grounds? Does “may” in s 23 mean “must”? The appellant submitted the Secretary would only take this action if he or she or the delegate actually held the belief. We did not understand the respondent to contend otherwise.

49    The appellant referred to George v Rockett (1990) 170 CLR 104 at 112, a search warrant case that concerned s 679 of The Criminal Code (Qld). Section 679 provided “[i]f it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting” that there is, for example, in any house anything with respect to which any offence has been committed, the justice may issue a warrant directing a police officer to enter and search. The High Court held (at 111–113) that it was implicit in this provision that the applicant for the search warrant should entertain the suspicion and belief to which that section referred and it must “appear” to the issuing justice that there were reasonable grounds for entertaining the relevant suspicion and belief. It was not necessary for the justice also to entertain the relevant suspicion and belief. In prescribing that there must be “reasonable grounds” for a state of mind — including suspicion and belief — the statute required the existence of facts which were sufficient to induce that state of mind in a reasonable person. The appellant also relied on George v Rockett at 116 where the High Court said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

50    George v Rockett is not relevant to the present appeal because, in our view, the preferable reading of the letter sent by the Acting Secretary on 5 June 2012 is that he had not formed the belief to which this ground 5 refers and that he did not consider that he should exercise his discretion to issue a notice under s 23(1). As we have set out at [38] above, the letter stated:

To act on your request to suspend the exporter’s licence, I would need to issue a show cause notice. To do that I would need to have reasonable grounds for believing that any of the circumstances listed in section 23 of the Australian Meat and Livestock Act 1997 had occurred and that this action was warranted in the circumstances. On the evidence you have provided, I do not consider I am in a position to take such action.

Contrary to the submission of the appellant, we would read “to do that” as referring to issuing a show cause notice. Also, as we explain more fully below in considering grounds 8 and 9, in our opinion the Secretary was under no duty to form the belief referred to in s 23 or to consider doing so.

51    For the reasons which follow, in our view it is also clear that even where the Secretary has reasonable grounds for believing any of the matters in (a) to (g), the section confers a discretion on the Secretary to give the written notice referred to in s 23(1) to the holder of the licence.

52    The primary judge, at [42], gave as one reason that the meaning of “may” is presumptively permissive and this followed both from the ordinary meaning of “may” and the applicable interpretive direction in s 33(2A) of the Acts Interpretation Act. With respect, we agree. The legislation shows no contrary intention within s 2 of the Acts Interpretation Act.

53    A second reason given by the primary judge, at [42], was that the use of “may” in s 23(1) can be contrasted with the obligatory language used in surrounding provisions (e.g., s 24(2): “the Secretary must ...”; s 23(3): “a show cause notice must ... ”). Again, with respect, we agree.

54    A third reason given by the primary judge, at [42], was that the permissive language in s 23(1) is unsurprising. His Honour noted that the provision does not confer rights or entitlements (cf., Finance Facilities Pty Ltd v Commissioner of Taxation (1970–1971) 127 CLR 106) but, rather, it establishes a public power in the exercise of which it would be expected that the Secretary would have regard to broad policy and public interest considerations. As his Honour acknowledged, “[t]he Secretary is expressly directed to have regard to certain kinds of broad policy considerations by s 9 (insofar as export of meat is concerned)”; and the present appellant accepted, indeed contended, that a purpose of the AMLI Act is helping to protect animal welfare and health. “The very point of such powers is”, his Honour observed, “to leave it to the repository of power to decide when it should be exercised”. Again, with respect, we agree. Further, the reasoning in Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at 153–154 [37] per Gleeson CJ and McHugh J stands strongly against the conclusion for which the appellant contends. See also Ward v Williams (1955) 92 CLR 496 at 507–508.

55    A fourth reason given by the primary judge, at [42], was that there is no textual warrant for distinguishing between any of the matters in s 23(1)(a)–(g), such that if one of those matters obtains a duty could arise, but if another obtains the power to issue a show cause notice is wholly permissive. As his Honour stated:

The conferral of power – “may give a written notice” – qualifies each of the matters in s 23(1)(a)–(g) equally. But it should not be supposed that Parliament intended that a show cause notice should necessarily issue should any of those matters obtain. Taking s 23(1)(g) as an example, which applies where there are reasonable grounds to believe that the licensee has contravened a condition of the licence, using Gleeson CJ and McHugh J’s language in Samad v District Court of New South Wales (2002) 209 CLR 140 at 153 [37] a contravention of a licence condition could “occur in circumstances that are technical, or trivial, or accidental, or readily excusable …”

56    With respect, we agree. A legislative purpose of depriving the Secretary of the capacity to excuse such a contravention or failure, or to seek to deal with it by some means short of issuing a show cause notice is not to be imputed to the legislature.

57    Relevant to that consideration is the final reason given by the primary judge, at [42], which is that it is significant that there are alternative means by which the Commonwealth can police licensee integrity and observance of licence conditions. Why should the Secretary be required to follow the s 23(1) procedure when he or she might consider alternative means more appropriate in the circumstances?

58    The appellant relies on Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 but that decision casts no light on the present question given the material differences in the subject matter and terms of the statutory provisions.

59    The appellant points to mandatory requirements prior to issuing a licence and, in particular, the requirement in s 12(1) of the AMLI Act that the Secretary must not grant an export licence unless satisfied of certain matters, including the integrity of the applicant for the licence. This, however, confirms that the legislature was aware of the distinction between the meaning of the word “must” and the meaning of the word “may”. Secondly, there are good reasons why there may be mandatory requirements before the issue of a licence and discretionary requirements as to whether or not to issue a show cause notice to a licensee. This is not answered by pointing to a discretion to suspend or cancel a licence on or after the issue of a show cause notice.

60    Other matters relied on by the appellant on this question of statutory construction seem to assume that the Secretary would fail to act responsibly. Put differently, that it may be very likely that the Secretary would issue a show cause notice in particular circumstances does not establish that there is no discretion. At the present level of statutory construction the appropriate assumption is that a discretionary power will be exercised reasonably in a legal sense: see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 151 per Knox CJ, Isaacs, Rich and Starke JJ: “possible abuse of powers is no reason in British law for limiting the natural force of the language creating them”, and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 350–351 per French CJ; at 362 per Hayne, Kiefel and Bell JJ; and at 370 per Gageler J, each referring to Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ for the proposition that when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.

61    Similarly, that a licence must, by virtue of s 22(5), be renewed if the holder of an export licence duly applies for its renewal unless the Secretary has determined under s 24(1)(d) that the licence not be renewed, and that that step is only open where the Secretary has given a show cause notice to the holder of the export licence, does not suggest or establish that the Secretary has no discretion in deciding whether or not to give a show cause notice under s 23. In our view it would be open to the Secretary to reason that he would not issue a notice under s 23(1) in circumstances where he was of the view that it was unlikely that he would take any further action in the matter under s 24 if he did issue such a notice.

62    Ground 5 is not made out and neither is that part of ground 4 which raises the question of ground 3A as proposed to be included by amendment in the Originating Application.

Grounds 6 and 7

63    By these grounds the appellant focuses on the references to “new evidence” in the Acting Secretary’s letter of 5 June 2012. The appellant’s first categorisation of the claimed legal error, in ground 6, is that these references showed that the Acting Secretary had taken into account an irrelevant consideration. The appellant’s second categorisation of the claimed legal error, in ground 7, is that these references showed that the decision of the Acting Secretary involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

64    The primary judge considered these matters primarily at [48]–[50]. His Honour said he did not accept the submission that the delegate believed he needed new evidence in order to exercise the s 23(1) power. His Honour reasoned that the submission assumed that the 5 June 2012 letter identified the universe of the delegate’s reasoning process when it was only an item of correspondence. His Honour added:

Further, and in any event, the Acting Secretary did not state that the absence of new evidence was determinative. When the Acting Secretary came to asking the question posed by s 23(1), in the last paragraph of the 5 June 2012 letter, he did not refer to the absence of evidence.

… [A]ny claim that there was no new evidence was accurate in [sic] the face of the material on which the allegations were based.

65    So far as the submission was that the absence of new evidence was an irrelevant consideration, his Honour held that “it is difficult to discern any parliamentary intention that the decision-maker be prohibited from having regard to whether new evidence had been adduced before deciding whether to issue a show cause notice. To the contrary, Parliament could be expected to intend that decision-makers be permitted to consider the existence of fresh evidence – indeed, so much seemed to be implicit in the applicant’s argument that the Secretary has a continuing duty to consider whether to exercise the power.”

66    On appeal the appellant submitted that the respondent erred in law by erecting some further requirement before he would consider exercising, or would exercise, his power in s 23(1). To erect the requirement was, the appellant submitted, to erect a false hurdle and an irrelevant consideration. Since the proposition that there was no new evidence was manifestly incorrect this too made the extra hurdle an irrelevant consideration. His Honour’s finding that a requirement for new evidence was not part of the Acting Secretary’s reasons was, the appellant submitted, not open on the text of the letter. The requirement that new evidence be provided was, the appellant argued, a fetter on the exercise of any discretion, the vice being the same as that identified in Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner (NSW) [2002] NSWSC 785; (2002) 55 NSWLR 642 at 655, where it was held that the Commissioner had “superimposed upon the statutory criteria a quite arbitrary requirement of compliance with a test devised by himself, which did not appear in the legislation”.

67    The respondent submitted that the 5 June 2012 letter did not say that the Acting Secretary believed he required new evidence to exercise the power and the existence of such a belief should not be implied. So far as the letter referred to “new evidence”, that statement had to be read in the context of the letter of 11 May 2012 written on the appellant’s behalf, which purported to draw evidence to the Secretary’s attention. The respondent contended that, if the Acting Secretary considered the absence of new evidence disabled him from exercising the power, the letter would have ended after the third main paragraph; and that, while the Acting Secretary had regard to the absence of new evidence, he did not consider that absence to disable him from considering the exercise of power. Whether a matter is an impermissible consideration is a question of statutory construction. The respondent argued that the appellant identified no basis in the statutory text, context or purpose which would prohibit the Secretary from having regard to whether a person has identified new evidence before exercising the s 23(1) power. There was no express prohibition in regard to such a matter and such a prohibition should not be implied. The respondent emphasised that Parliament may be expected to permit the Secretary to consider the existence of fresh evidence — so much was implicit in the appellant’s argument that the Secretary had a continuing duty to consider whether to exercise the power; and that it would plainly advance the efficient conduct of the Department’s business if the legislation were construed so as not to prohibit the Secretary from requiring new evidence before exercising his residual discretion.

68    In our opinion, as a matter of construction of the statute it is impossible to conclude that the repository of the power is prohibited from considering whether or not there is new evidence in deciding whether or not to exercise the discretion to give a written notice under s 23(1). Indeed, in circumstances where the matter has been previously considered by the Department, whether or not there is new material since the matter was last looked at is plainly a permissible consideration. We should add that we would not regard the Acting Secretary as using the expression “new evidence” in any legal sense but as indicating merely that he did not think there was anything by way of new substantiating material in the letter on behalf of the appellant dated 11 May 2012. We do not accept the appellant’s submission that any error in fact finding in this respect reveals that an irrelevant consideration was taken into account.

69    Neither is there any basis for concluding that the letter of the Acting Secretary shows that he inflexibly applied a policy without regard to the merits. In our view the Acting Secretary was merely indicating his view of the facts of the case, that is, that the letter on behalf of the appellant did not provide new substantiating material. This conclusion is supported by the sentence at the end of the letter urging Dr Caulfield to provide to the Acting Secretary for consideration any new evidence he had to support the appellant’s allegations.

70    Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner (NSW) was quite a different case in which the applicant challenged the respondent’s refusal to register it as a political party under the Parliamentary Electorates and Elections Act 1912 (NSW). There the Electoral Commissioner made it clear that, in order to comply with the statutory requirement for evidence of membership of 750, the Commissioner required a 75% response, evaluated by him as positive, in respect of his mail-out to a randomly selected 300 names on the membership list asking for confirmation of membership. The only matter not determined in favour of the applicant for registration was compliance with this requirement, which was held to be a precise test in itself and not a mere means of determining the statutory question of whether there were 750 electors who were members of the party. The Commissioner’s refusal was held invalid for this reason. The Acting Secretary did not rely on any such test or rule in this case.

71    On analysis, these grounds invite the Court impermissibly to consider the merits of the Acting Secretary’s views.

72    Grounds 6 and 7 are not made out.

Grounds 8 and 9

73    It will be recalled that these grounds concern whether the respondent was under a duty to consider whether to issue a show cause notice under s 23 of the AMLI Act and that from around 5 January 2009 to the present the respondent failed to exercise his duty to consider whether to issue ILE with such a show cause notice.

74    The factual premise is that the respondent did not consider whether to issue ILE with a show cause notice.

75    Dealing with the factual matter first, the appellant submitted that the primary judge ought to have found that the duty to consider was not exercised and identified three periods. The first period was from mid-December 2008, when the AAV first made allegations about ILE, until just before 11 May 2012 when the appellant’s solicitor requested that a show cause notice be issued. The second period was from 11 May 2012 to 5 June 2012 when the Acting Secretary decided he would not take action in response to the appellant’s 11 May 2012 letter. The third period was from 5 June 2012 onwards when further information came to the attention of the respondent regarding ILE’s improprieties in relation to the voyage.

76    In relation to these periods, it is to be recalled that the second decision, being the decision challenged on this appeal, was stated to be dated 5 June 2012, being a decision not to issue a notice pursuant to s 23 of the AMLI Act. As we understood it, however, the respondent did not take the point that the first and third periods were outside the scope of the application for judicial review. Indeed the first period was the subject of the appellant’s interlocutory application dated 24 October 2013 seeking leave to amend its originating application and almost the entire period was covered by proposed new ground 8.

77    As to the first period the appellant submitted there was no evidence that the respondent ever considered whether to exercise the power under s 23(1). It was submitted that it may reasonably be expected that at least some documentation would have been brought into existence if there had been such consideration.

78    As to the second period, the appellant submitted that the Acting Secretary did not in fact consider whether to issue a show cause notice. It was put that the content of the letter was more directed to defending the Department’s actions. The letter did not express a view about whether the Acting Secretary had formed a belief on reasonable grounds as to the existence of any of the criteria in s 23(1). The appellant submitted that in order to discharge a duty to give a matter consideration, the matter must be more than adverted to or given mere lip-service and there must be a process of evaluation and intellectual engagement.

79    As to the third period, the appellant submitted that significant new evidence came to the respondent’s attention after the letter. The appellant drew attention to the two competing draft letters to ILE prepared after a direction was given to ILE under s 17 of the AMLI Act and ILE’s response to that direction. One of the draft letters was to issue a s 23(1) notice and the other draft letter was not to issue such a notice. No minute of decision or final letter was produced on discovery.

80    Common to the appellant’s analysis of each of these periods is that if there was some thought given to the question of issuing a notice under s 23(1), the quality of the consideration was inadequate to answer the (contended for) statutory requirement. In our opinion whatever language is used in the cases to describe whether or not what has been done by the person exercising the power answers any statutory requirement, the ultimate question is one of fact for the Court: there is no form of words or formula which should be permitted to obscure that underlying task. It should also be borne in mind that although the Court must assess what the person exercising the power has done, that assessment is for the purpose of assessing the legality of the exercise of the power and not the merits of that exercise. We do not suggest that in the decisions relied on by the appellant, principally Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633, Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 and Tickner v Chapman (1995) 57 FCR 451, the courts have not followed that underlying principle, indeed so much was noted in Anderson at [53]–[54]. We consider there may well be a different approach or conclusion where there is a statutory duty to consider a matter expressed generally, on the one hand, and on the other hand where there is a requirement to take into account a specific consideration. In any event, ultimately the statute dictates how the Court should approach what we have identified as the question of fact. See also Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [44]–[48].

81    As to the appellant’s submission in respect of these periods that the absence of a document specifically setting out the Secretary’s consideration of the question meant the Court could not or should not infer that there had been consideration of whether or not to issue a notice under s 23(1), in our opinion the correct approach is for the Court to assess, in the ordinary way, all of the material in its context in order to answer the question of fact we have identified in [80] above.

82    With those considerations in mind we consider separately the three periods on which the appellant relies.

83    As to the first period, it is submitted that during this period information was made known to AQIS which raised possible improprieties and licence condition breaches on the part of ILE and it may reasonably be expected that at least some documentation would have been brought into existence if the respondent had considered whether to exercise the power under s 23(1) in this first period. In our view the argument is both abstract and technical. First it assumes, at large, that the Secretary had during that period formed a belief on reasonable grounds as to one or more of the matters specified in (a)–(g) of s 23(1). Secondly, it assumes that any consideration of whether or not to issue a notice under s 23(1) would have been put in writing. In our view neither of these assumptions has been made good.

84    As to the second period, in our view it is clear from the terms of the Acting Secretary’s letter dated 5 June 2012 that he did then consider whether to issue ILE with a show cause notice but decided not to do so. The Acting Secretary expressly said that to issue a show cause notice he would need to have reasonable grounds for believing that any of the circumstances listed in s 23 had occurred and that issuing such a notice was warranted in the circumstances. On the evidence provided, he said he did not consider he was in a position to issue such a notice. In our opinion there is nothing to suggest that what the Acting Secretary said did not reflect what he had done and that what he had done was to consider whether there was a basis for issuing a s 23 notice. What the Acting Secretary wrote should not be artificially or minutely analysed beyond what he said, which was that, the matter having been previously considered, there was no new substantiating material.

85    As to the third period, in our opinion the material to which the appellant draws attention, the two competing draft letters one of which was to issue a s 23(1) notice and the other was not to issue such a notice, indicates a consideration of whether or not to issue such a notice. For present purposes that is sufficient.

86    We next consider the appellant’s submission that if there are, known to the Secretary, reasonable grounds to believe that a matter in s 23(1)(a)–(g) exists, then the Secretary has a duty to consider whether he or she believes those grounds exist and if that criterion is met there is then a duty to consider whether to exercise the discretion. This submission is put in the alternative to the appellant’s submission that there is no discretion.

87    The appellant referred to a number of authorities, including Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 499 per Starke J and 505 per Dixon J; Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [59]; R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513 at 575 per Lord Nicholls; and Threadneedle Property Investments Ltd v Southwark Borough Council [2012] EWHC 855 at [64]–[84], but accepted that ultimately this was a matter of statutory construction. As the respondent submitted, that a statutory power may carry a duty to consider is not disputed: the question was whether this statutory power did so.

88    The appellant also submitted that the primary judge erroneously treated SZGUR as standing for a general proposition that a duty to consider can never arise unless there is a duty to exercise the power.

89    The respondent submitted there was nothing in the terms of s 23(1) that would suggest that there was one or both of those duties to consider. That was to be compared with cases like Tickner v Chapman: where there was a requirement to consider particular issues an obligation to consider would more readily be implied. But where, as here, there was a discretionary power it was less likely that it would be construed as imposing a condition or a requirement that the repository of the power had a duty to consider its exercise. The respondent submitted that was the reasoning in SZGUR at [22]. There French CJ and Kiefel J said:

The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [[2002] FCAFC 277]. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) “[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power”. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).

(Footnotes omitted)

The respondent submitted that this should not be taken to state an absolute rule but, rather, a useful rule of thumb.

90    The respondent also submitted that the issue of the consequences of the appellant’s construction was significant. An ongoing duty of the nature that was pleaded could impose an intolerable burden where the Secretary had to consider the matter at various times, and the question might arise as to at what particular time did the Secretary have to consider the matter or consider it again or consider it afresh. This was illustrated by the present case where the appellant contended that the duty was not exercised during three periods by reference to a range of conduct by departmental officers who were undertaking a process of investigation and evaluation of allegations that were put to them; some of those officers sat within Compliance and Investigation Branch and some of them were in the export area. There was a difficulty in terms of the construction for which the appellant contended as to how it might work as a practical matter where any number of officers might be dealing with particular matters at any given time.

91    In our opinion it may be accepted that the Secretary has an ongoing monitoring role of export licence-holders, but that is a proposition which flows from the terms of the legislation rather than being a freestanding source of obligation external to it. Thus the matter comes back to one of statutory construction. The obligations on the Secretary contended for by the appellant do not find a basis in the statutory language. That construction involves rewriting s 23 so that it would read: “where there are reasonable grounds for believing, then the Secretary must consider those grounds”, that is, where there are known objective grounds, then the Secretary is under a duty to consider those grounds and if he or she forms that belief then he or she must consider issuing a notice under s 23(1). As drafted, however, the section provides that it is a matter for the Secretary to determine whether or not he or she thinks there are reasonable grounds: no stepped process is prescribed.

92    Again, in our view, at the level of statutory construction, discretionary powers should not be construed as imposing duties on the basis, and against the possibility, that those powers might be abused: see [60] above.

93    The primary judge dealt with this aspect of the matter at [78]–[88]. The appellant has not established error in the conclusions of the primary judge.

94    Grounds 8 and 9 are not made out and neither is that part of ground 4 which raises the question of ground 8 as proposed to be included by amendment in the Originating Application.

Grounds 10 and 11

95    In its written submissions, the appellant submitted that the matters raised in its 11 May 2012 letter pointed to a series of licence condition breaches and serious improprieties on the part of ILE. The appellant submitted that the matters referred to in particular (a) of ground 4 of the Originating Application (see paragraph [8] above) would inevitably, if they had been taken into account, have led the Acting Secretary to reach a belief on reasonable grounds of the existence of s 23(1)(g) (contravention of licence conditions), while the matters in particulars (b) to (i) would inevitably have led the Acting Secretary to reach a belief on reasonable grounds of the existence of s 23(1)(b) (licence holder ceased to be of integrity). On the terms of ss 23(1)(b) and (g) the Acting Secretary was bound, so the appellant said, to take account of licence condition breaches and evidence of a licence holder’s impropriety. This was the subject of ground 10 in the notice of appeal.

96    In relation to ground 11, the appellant submitted that, if the Acting Secretary had taken the above matters into account and yet reached the conclusion that he did not have a belief on reasonable grounds of the existence of one of the matters specified in ss 23(1)(a)-(g), then that conclusion of jurisdictional fact was illogical and irrational and one which no rational or logical decision-maker could arrive at on the same evidence.

97    The respondent submitted that, so far as the appellant’s submissions proceeded from the factual premise that the Secretary did not consider whether there were reasonable grounds for believing that a matter identified in ss 23(1)(a)–(g) obtained, that premise was unsound. In the alternative, even if the Secretary formed a positive view that there were not reasonable grounds for believing that a matter identified in ss 23(1)(a)– (g) obtained, that conclusion was not illogical or irrational once regard was had to the competing accounts that were before the Secretary. The respondent noted that the events as portrayed by the appellant and by Dr Reeve-Johnson were not the only accounts. There was also ILE’s response of 21 August 2009, along with the Department’s information as to the prospects of obtaining a conviction. The respondent submitted that ILE’s alternative account was credible: for example, the information in the documents was consistent with ILE’s assessment of the number of goat mortalities. The Acting Secretary was not, the respondent submitted, under some legal duty to accept either Dr Reeve-Johnson’s characterisation of the facts, or that of the appellant.

98    In our view, on analysis, grounds 10 and 11 raise no separate legal error. As we have said, the Secretary was under no legal duty to consider the allegations, although he did so, and he was under no legal duty to form the belief referred to in s 23(1). Therefore the steps he did, or did not take, did not involve a failure to take into account mandatory relevant considerations or acting illogically, irrationally or legally unreasonably.

99    Grounds 10 and 11 are not made out.

Summary

100    In light of these conclusions on each of the substantive grounds of appeal it is unnecessary to consider the question of the appellant’s standing. However, the primary judge held that the appellant did not have standing and since the matter was fully argued it is convenient to state our reasons and conclusion on this issue.

The appellant’s standing

101    Procedurally, this issue arose by means of a notice of objection to competency filed on 27 July 2012, whereby the respondent objected to the competency of the application on the ground that the appellant was not a person aggrieved within the meaning of s 5 of the ADJR Act and on the further ground that the appellant did not have standing under s 39B.

102    The primary judge considered this issue at [89]–[124] of his reasons. Having set out the submissions of the parties, the primary judge summarised his reasons as follows:

[123(9)]    In summary, I am of the view that the applicant lacks standing to apply for review of the applicant’s second decision – not to issue a notice pursuant to s 23 of the AMLI Act to ILE to show cause in terms of its originating application – or in the relief sought – a declaration that the second decision was not authorised by law for reasons relied on in its originating application (Order 2), for the following reasons:

(i)    its lack of presence in Australia, either through establishment, organisation, registration or membership; in the latter case, either through individuals who are residents of Australia or other groups or associations organised in Australia concerned with animal welfare, in particular in the export of live-stock from Australia: cf., North Coast [North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492] at 512–513;

(ii)    its limited recognition in Australia by the governments of the Commonwealth and the States; limited in the sense of not extending to financial grants or assistance, even on modest terms: cf., North Coast at 513;

(iii)    the lack of any evidence as to its commitment of financial resources to animal welfare in Australia, in particular to the export of live-stock from Australia, and the resources, not only financial, but those directed to community engagement by way of advocacy, lobbying and other means, which will be wasted or put at risk in the absence of standing;

(iv)    the lack of any evidence as to its status or standing with respect to, or its co-ordination or co-operation with, other bodies organised or established in Australia concerned with animal welfare, e.g., the RSPCA;

(v)    the broad and global nature of its objects or purposes in relation to animal welfare, compared to the limited purposes of the legislative scheme governing the export of live-stock from Australia, in particular the AMLI Act and the EC Act. The fact that the applicant has interacted with government instrumentalities such as DAFF and brought to their attention non-compliance activities for action does not overcome the lack of intersection in this regard; and

(vi)    the nature of the decision sought to be reviewed, its lack of contemporaneity with the events upon which it is grounded, and the nature of the relief sought, in particular its lack of utility.

103    The appellant’s challenges to these conclusions were grounds 1 and 2 of its notice of appeal.

104    In its written submissions the appellant contended that the specific objections raised by the primary judge, which we have set out above, should be rejected. It was irrelevant whether the appellant has Australian members. It was relevant, the appellant submitted, that it operated in Australia, including by lobbying and investigating, that it has an Australian representative and employed Australian investigators. The appellant submitted that the relevant question was what special interest the appellant had as a body corporate in the impugned decisions. The question of whether the appellant received government grants could be relevant, but it was not determinative. What was more relevant, the appellant submitted, was whether government actions manifested a recognition of the special interest of the organisation in the matter, as had occurred here. The appellant submitted that the finding by the primary judge that there was a lack of evidence as to the appellant’s commitment of financial resources to animal welfare in Australia was wrong, in that the evidence showed that the appellant paid its Australian investigators and representative and committed significant financial resources to the case. It was also wrong, the appellant submitted, to find that there was a lack of evidence as to its status with respect to the animal welfare bodies. The evidence was that, aside from the RSPCA, the appellant was the only NGO in Australia that monitored the farmed animal industry for compliance with animal welfare legislation. Moreover, the appellant submitted, standing requires the establishment of a special interest, not a unique one. The appellant also submitted that the finding that there was a lack of correlation between the appellant’s objects and the legislative scheme of live export licensing was also wrong. The appellant’s interest in the enforcement by the regulator of licence conditions regarding animal welfare was in complete alignment with the appellant’s corporate object.

105    The appellant submitted that on a multifactorial approach, the appellant clearly had a special interest which distinguished it from ordinary members of the community, as it:

(i)    had as its objects the interests it sought to vindicate in challenging the decision;

(ii)    was represented on government committees, advisory groups and taskforces;

(iii)    engaged in activities such as research, advice, lobbying and consultations in relation to the issues relevant to the impugned decision;

(iv)    was recognised by government as a significant and responsible organisation in respect of a particular cause. In a letter from the respondent’s Chief Veterinary Officer, it was stated that the appellant was a “stakeholder with a significant interest in the live export trade”;

(v)    had engaged in activities which demonstrated its commitment to its particular values;

(vi)    had expended its money on its cause;

(vii)    the respondent replied to the appellant’s letter of 11 May 2012. The letter was not a “mere courtesy”.

The appellant submitted it stood in a similar position to the environmental organisations found to have standing to challenge decisions relating to export licences issued under the Export Control Act. It referred to Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70; (1989) 76 LGRA 200; North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; and Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516.

106    In its written reply the appellant took issue with the respondent’s assertion that the Court has a role in assessing whether a challenger “is a suitable representative of the Australian public in enforcing a Commonwealth law” and that this will not be so if there is some “more appropriate moving party”. The appellant submitted that neither the Court nor the executive branches of governments have such a role; nor is there some requirement that only the most appropriate moving party may challenge government decisions. What is required, it said, is simply a special interest which distinguishes the challenger from members of the public seeking to intermeddle. That special interest was present here, the appellant submitted.

107    In oral submissions the appellant referred to Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591; and Kuczborski v Queensland [2014] HCA 46; (2014) 314 ALR 528. The appellant also emphasised the unchallenged evidence of Ms Dawn Lowe, animal welfare investigator and the appellant’s representative in Australia, as follows:

From my involvement with Animals’ Angels in Australia and my work with the live animal export industry, I believe that Animals’ Angels is the only non-government organisation in Australia apart from the States and Territories Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) that actively and routinely monitors the farmed animal industry (including that part of the industry involved in transport) for compliance with animal welfare legislation.

108    In written submissions, the respondent submitted that the primary judge was correct, for the reasons his Honour gave, to find that the appellant did not have standing to ventilate the present dispute. The respondent also submitted that the appellant was not in an equivalent position to the first applicant in Australian Conservation Foundation v Minister for Resources. Further, it was not irrelevant for the primary judge to have regard to the fact that the appellant has no Australian members. The respondent submitted that the fact none of a not-for-profit organisation’s members were people of the Commonwealth was plainly capable of bearing on whether that organisation was a suitable representative of the Australian public in enforcing a Commonwealth law. Further, the cases indicated that it was relevant to consider whether a body was the “peak” organisation. There was an absence of evidence, the respondent said, that the appellant was the peak organisation in the present field. The “public interest” referred to by the primary judge was the public interest in this particular litigation, not the public interest in the regulation of live animal exporters. The respondent submitted that consideration of the public interest in the present litigation necessarily included reference to whether this appellant was a proper representative of the public interest; and the appellant was not, for the reasons the primary judge gave, a proper representative. The critical point about the appellant’s objectives, the respondent submitted, was that they were generalised and global rather than specific and local. That those interests were generalised supported the view that they were merely intellectual. That those interests were global supported the view that, in their application to the present proceedings, those interests were not “special”. That the appellant sent a letter and that the Acting Secretary replied to it could not give the appellant standing. The respondent observed that the appellant’s letter was not received by the Acting Secretary pursuant to some statutory facility for persons to participate in public decision-making. The respondent argued that there was no proximity between the sending of the appellant’s letter, the receipt of the letter in response, and any right, liability or duty under the AMLI Act.

109    In oral submissions the respondent contended that it is necessary to look at the level of particularity, and it was not enough to just have a broad interest in animal welfare issues. One has to look at the subject matter of the dispute. There was, the respondent submitted, no case that had discarded the basic requirement that an applicant have a special interest in the subject matter of the proceedings, distinct from that of the general public and over and above a mere desire to enforce the law. The courts were looking for concrete adverseness, so the respondent contended; and the subject matter of these proceedings was the Secretary’s exercise of powers available to him under the AMLI Act with respect to a particular licence. Further, the respondent submitted that the issue came to the attention of the appellant not by reason of its activities in policing or monitoring but by reason of a discussion with Dr Lloyd Reeve-Johnson prompting the appellant to make FOI requests. In that respect, the respondent contended that the appellant’s involvement was well after the event and opportunistic, and its involvement could be contrasted to other cases involving standing where public or environmental agencies had been involved in a particular issue which was the subject of the decision that they ultimately challenged. His Honour was correct, the respondent said, to focus on that question and also the absence of any real presence, with the exception of one representative in Australia. The characterisation by Mr Blanke of the appellant’s interest as being to encourage the enforcement of licence conditions by the respondent and to raise public awareness regarding the present lack of enforcement was a very general concern which was not specific to, or giving rise to, a concrete interest in the subject matter of the proceedings, being the licence.

110    An analysis of these competing contentions may usefully begin with the appellant’s constitution, which, as translated, states its principles, goals and tasks as follows:

§3    Principles

The organisation’s work is done with the conviction,

(1)    that the cruel treatment of animals contradicts the way the developed states in Europe see themselves;

(2)    that there can be no moral justification for long distance animal transports;

(3)    that acting on behalf of animals as co-creatures has the same priority as fighting for human rights;

(4)    that animals must no longer be treated as merchandise, but as living beings with their own rights.

§4    Goals and tasks

(1)    It is the organisation’s objective to fight against all kinds of abuse, cruelty and exploitation of animals throughout Europe, particularly of so-called “farm and slaughter animals”;

(2)    to act towards bringing about the stoppage of transports of so-called “farm and slaughter animals”;

(3)    to accompany threatened, maltreated animals destined for slaughter, to improve their conditions of life, transport and slaughter;

(4)    to direct the public’s attention to outrages in animal protection matters, particularly regarding transport and slaughter conditions;

(5)    to advance the development of an informed political opinion among the responsible parties, and to support the passage and implementation of regulations and laws suitable for the protection of animals;

(6)    to offer animals [t]hat have been saved a place of refuge by building and maintaining animal shelters and “retirement” sites;

(7)    By the formation and operation of offices, establishments and branches in other countries and German States, the work of the organisation is to be strengthened and promoted.

All of this shall be done, among other things, by

(1)    accompanying animal death transports;

(2)    observing transport routes, loading stations, slaughterhouses and     animal markets;

(3)    legally prosecuting violators of the law;

(4)     international public relations work;

(5)    cooperating with veterinary and other state authorities, with the police and other authorities, as well as with animal rights organisations and associations.

(6)    The foundation shall be established pursuant to §4, paragraph 2,     number 7 through the raising of donations on a separate bank account, while the raised funds shall be used in addition to the initial capital.

(7)    The association is politically and denominationally independent.

(8)    The association works internationally.

111    The undisputed facts in relation to the appellant include that it is based in Germany, was founded in 1998, and operates internationally, including in Australia, where its representative is Ms Lowe. Its core concern is with the transport and export of live animals for slaughter and other purposes. It has been involved for about 14 years in researching and investigating the export of live animals around the world. It has established permanent “investigation teams” around the world, including in Australia, that regularly carry out on-site investigations into places where animals are held, including transport vehicles, slaughterhouses, ports, border control stations and livestock markets. The investigation results are documented in reports and supported by photos and video footage, which are then submitted to the relevant authorities in order to enforce legislation or to seek further protective legislative measures.

112    The appellant currently has about 3370 members who pay an annual subscription of €100 per annum. The members are located mostly in Germany and Switzerland. There are no members in Australia.

113    The appellant is a non-profit association. Its charitable status is regularly reviewed by the German taxation authorities. The organisation’s finance is primarily through donations, membership contributions and legacies. The funds are used solely for the purposes of achieving the appellant’s objectives, which are long-term improvements for “farm and slaughter” animals. The substantial focus of the appellant’s work is on the preparation of research and investigation reports which are then submitted to various government bodies in the hope of engendering policies and procedures that promote the safety, health and well-being of animals. For that reason, a substantial amount of the appellant’s expenditure is devoted to personnel (being investigation, research and administrative personnel) and legal costs. The appellant’s teams in the countries in which it operates use permanently employed and paid personnel, as well as volunteers and consultant investigators.

114    The Chairman of the appellant’s Board, Mr Michael Blanke, deposed that he was aware from his researches that the live export of animals from Australia had given rise to widespread community concern about animal welfare issues for the livestock exported. He referred to the Keniry Report which, he said, was commissioned by the Minister for Agriculture following a public outcry in response to the Cormo Express disaster when over 5500 sheep died during a live export shipment. Mr Blanke also deposed to the concern of the Board of the appellant that the respondent did not take steps to sanction the breach of licence conditions relevant to animal welfare on the voyage of the MV Hereford Express in November and December 2008 and to its concern that the respondent was not enforcing the conditions imposed on the export licences for the export of livestock designed to protect and promote the health, safety and well-being of live animals exported from Australia by sea more generally. Mr Blanke deposed that the purpose of the appellant in commencing the proceeding was to encourage the enforcement of those conditions by the respondent and to raise public awareness regarding the present lack of enforcement. He referred again to the Keniry Report, which referred to the close international and community scrutiny being given to whether and how Australian animal welfare standards are met in livestock exports. He also referred to the later Farmer Review, which said that there appeared to be limited examples of AQIS having used the range of compliance measures and sanctions available to prosecute breaches of ASEL. The Farmer Review suggested a review by AQIS to examine how it had in practice followed up reports that suggested non-compliance; and come to a view on means of using its regulatory function consistent with the Australian Government’s welfare expectations.

115    As noted already, Ms Lowe, who described her occupation as animal welfare investigator, was the appellant’s representative in Australia and she said that, as such, her chief responsibilities were to monitor saleyards, short and long distance transport and live animal export for compliance with relevant laws, and to report non-compliance to relevant authorities. As indicated (at [107] above) Ms Lowe stated her belief that the appellant was the only non-government organisation in Australia apart from the States’ and Territories’ Royal Society for the Prevention of Cruelty to Animals that actively and routinely monitored the farmed animal industry (including that part of the industry involved in transport) for compliance with animal welfare legislation.

116    Ms Lowe stated that the appellant’s representatives conducted investigations in the field, including at ports, and documented animal welfare concerns in reports, including with photo and video evidence. Those reports were then communicated to appropriate enforcement authorities. She then described, in 34 paragraphs, the appellant’s activities in Australia from early 2004 to July 2012. These included the preparation of a report on animal welfare issues during loading of sheep and cattle onto a vessel at Fremantle in February 2005, which was sent to the DAFF officers responsible for live export matters and subsequently considered by the Federal Agriculture Minister’s National Consultative Committee on Animal Welfare at its meeting in April 2005. Ms Lowe included an extract from the minutes of that meeting in relation to that report. Similar reports were forwarded in relation to the loading of animals for live export onto ships in relation to many other export voyages.

117    In September 2007, Ms Lowe, on behalf of the appellant, was invited by the Animal Welfare Unit of DAFF to participate in, and she did participate in, the National Animal Welfare Workshop hosted by DAFF in December 2007. This was part of the activities of the Australian Animal Welfare Strategy, which was run by DAFF.

118    In May 2012, Ms Lowe had a telephone conversation with an Assistant Secretary of DAFF to the effect that in response to recommendations of the Farmer Review, a team had been established by DAFF to review procedures relating to animal inspections and welfare issues prior to loading of animals onto live export ships at Fremantle and the Assistant Secretary had instructed the team to meet with Ms Lowe in Fremantle to discuss those issues. That matter was followed up by a letter to Ms Lowe, as the representative of the appellant, from the Chief Veterinary Officer, with that letter stating:

On 24 July 2012 the Department of Agriculture, Fisheries and Forestry announced reviews of the Australian Standards for the Export of Livestock (ASEL) including the role and function of the Livestock Export Standards Advisory Group (LESAG) and the inspection processes for sheep prior to export at the port of Fremantle, Western Australia. The Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Joe Ludwig recently agreed to my appointment as chair of the two steering committees.

The reviews are in line with the Australian Government’s response to the recommendations made in the Independent Review into Australia’s Livestock Export Trade by Bill Farmer AO in October 2011.

As a stakeholder with a significant interest in the live export trade, your organisation’s views on a range of issues raised in the Terms of Reference for these reviews would be welcomed.

Copies of the Terms of Reference for these reviews are attached for your convenience.

I am seeking submissions by 7 September to allow for full consideration of your organisation’s views.

…

I look forward to receiving your organisation’s contribution to these reviews.

(Emphasis added)

119    The matters relied on by the primary judge do not, in our respectful opinion, adequately convey the duration and quality of the appellant’s involvement in the live animal export trade from Australia. In our opinion the objects of the appellant and its activities in Australia, as described in detail by Ms Lowe over eight years, considered in relation to the effect of the statutory decision or decisions and the grounds of judicial review, show that the appellant does have standing to seek the relief set out in its application to the Court. This is supported by the fact that relevant Australian government department has recognised the appellant’s particular status in the area of live animal export. Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 establishes that regard is to be had to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved: see at [43] per French CJ and Keane J; at [66]–[68] per Hayne and Bell JJ; and at [86] per Gageler J. However, it appears that French CJ and Keane J, on the one hand, and Hayne and Bell JJ on the other hand, took a different view on whether standing was to be determined by reference to the objects or scope and purpose of the statute conferring power to make the decision: compare [41]–[42] per French CJ and Keane J and [66] per Hayne and Bell JJ. See also [80] per Gageler J, rejecting the submission that the interests to which the ADJR Act refers are limited to those which fall within the subject-matter, scope and purposes of the particular enactment under which a decision was made or purported to be made.

120    Considering in turn each of the matters on which the primary judge relied for his conclusion in relation to the appellant’s standing: in our opinion the appellant does have sufficient presence in Australia; it has been recognised in Australia by the relevant department of the Commonwealth; it has devoted financial resources to animal welfare in Australia sufficient to found the activities to which we have referred; not a great weight attaches to the appellant’s status or standing with respect to other bodies concerned with animal welfare; the broader and global nature of the appellant’s objects or purposes do not derogate from the appellant’s engagement in Australia; the appellant’s Australian activities do intersect with the appellant’s objects or purposes; and the nature of the decision sought to be reviewed directly impacts on animal welfare, which is at the centre of the appellant’s objects or purposes.

121    In our view this evidence establishes that the appellant has a special interest to seek the relief set out in its application to the Court. We accept that standing requires a sufficient interest, not one which is a unique interest or the strongest interest compared with others who may have an interest.

Costs

122    The primary judge at [126]–[127] dealt with this question summarily. His Honour said costs would normally follow the event, but noted the present appellant’s contention that the usual rule should be departed from because:

(1)    [t]his is “public interest litigation”;

(2)    the respondent’s claim for public interest immunity was “spurious”; and

(3)    the applicant expended additional costs because of the respondent’s approach to discovery.

123    The primary judge rejected the first two matters but ordered that the respondent’s costs be discounted by reference to the third matter. The second matter, the claim for public interest immunity, is no longer in issue in relation to costs.

124    By ground 14 of its notice of appeal, the appellant contended that the primary judge erred in failing to find that the usual rule that costs follow the event should be departed from because of the presence of “public interest litigation” considerations. Particulars of this ground were given as follows:

Particulars

(a)    His Honour failed to consider and address the Appellant’s submissions on the question of whether the usual rule that costs follow the event should be departed from because of the presence of considerations relating to what can be labelled “public interest litigation”.

(b)    His Honour failed to provide any reasons for rejecting the Appellant’s submission that the usual rule that costs follow the event should be departed from because of such considerations.

125    The appropriate assumption in relation to this ground of appeal is that the primary judge was correct in dismissing the application for judicial review.

126    The appellant submitted that the primary judge erred at [126]–[127] in failing to find that the usual rule that costs follow the event ought to be displaced because this was public interest litigation. The appellant submitted that if its costs application was to be rejected, the primary judge erred in giving no reasons for his conclusion. The public interest aspect of this litigation was, the appellant submitted, manifest; and the appellant stood to make no private benefit. His Honour should not therefore have ordered the appellant to pay the respondent’s costs. Reference was made to Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587 at [12]; Qantas Airways Ltd v Cameron (No 3) (1996) 68 FCR 387; Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [29]; Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGERA 214; Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19; (2008) 157 LGERA 413 and Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 307; [1999] 2 WLR 1305 at 1315. In oral submissions the appellant emphasised Oshlack v Richmond River Council (1998) 193 CLR 72. The appellant submitted it was seeking to protect the interests of animal welfare, where animals cannot litigate for themselves, which was necessarily a beneficial interest. While not equating liberty of animals with liberty of the person it was still an important interest. The appellant referred to the public interest, the community interest being reflected more broadly. The appellant submitted it was also an unusual case in that it was actually in the industry’s interests to have these matters rigidly monitored and standards upheld. There was no conceivable private gain here on the part of the appellant and the issues the appellant raised were of importance, not just for this particular licence breach relating to ILE, but in relation to the administration of the AMLI Act more broadly. For all these reasons, the appellant contended that his Honour should not have ordered costs against the appellant below or alternatively there should have been be no order for costs.

127    The respondent submitted there was no error in the exercise of the primary judge’s discretion as to costs. The respondent submitted that a disagreement with the outcome was not a sufficient reason for interfering with the order of the primary judge; and the fact that the appellant did not have a financial interest in the litigation and had “public interest” objects did not constitute sufficient reasons for departing from the usual order, citing Ruddock v Vadarlis (No 2) at [18]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 at [15]. If the litigation was “public interest” litigation, the respondent submitted that the appellant was not a proper person to bring it and it was appropriate not to reward it by departing from the usual order.

128    The parties made corresponding submissions in relation to the costs of the appeal. The respondent referred to Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; (2011) 280 ALR 91.

129    In our opinion the appellant has not established error in the exercise of discretion by the primary judge. It is to be recalled that not only had the primary judge held against the appellant on each of its grounds of review but his Honour had also held that the appellant was not a person aggrieved under the ADJR Act and did not have standing under s 39B to seek the relief it claimed. We refer also in this respect to the following observations of Black CJ and French J in Ruddock v Vadarlis (No 2) at [18]–[19] where their Honours said:

[t]hat a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation.

…

To say of a proceeding that it is brought “in the public interest” does not of itself expose the basis upon which the discretion to award or not award costs should be exercised.

130    Further, it is to be recalled that, as noted by their Honours in Ruddock v Vadarlis (No 2), Oshlack v Richmond River Council concerned whether the subject matter, scope and purpose of the statute conferring the power to award costs, s 69(2) of the Land and Environment Court Act 1979 (NSW), was such that the considerations to which the trial judge had regard were extraneous to any object the legislature had in view in enacting it. One of those considerations was the relaxation of standing by s 123 of the Environmental Planning and Assessment Act. There is no general principle that the usual order as to costs should not apply if the subject matter of the litigation is a matter of “public interest”. It is also to be noted that the purpose of a costs order is compensatory albeit there is no absolute rule that a successful party is to be compensated by the unsuccessful party.

131    We shall next proceed on the basis that we are wrong in the conclusion the appellant has not shown error in the exercise by the primary judge of the Court’s discretion and that it falls to the Full Court to re-exercise the discretion. Taking into account the matters on which the appellant relies relating to the “public interest”, we would also have ordered the then applicant to pay the respondent’s costs, the applicant having failed on its substantive grounds of review.

132    In relation to the costs of the appeal, in our view and having taken into account the matters on which the appellant relies relating to the “public interest”, costs should follow the event. The respondent has succeeded on all substantive grounds and in having the appeal dismissed. The issue of the appellant’s standing to claim the relief sought in the first place by its originating application was not sufficient in itself to warrant a departure from the usual order.

Orders

133    In our opinion the orders of the primary judge should be varied so as to reflect our conclusion as to the appellant’s standing. We would therefore propose the following orders:

1.    Order 1 made by the primary judge on 24 April 2014 be set aside and in lieu thereof the respondent’s notice of objection to competency filed on 27 July 2012 be dismissed.

2.    The appellant’s appeal be otherwise dismissed.

3.    The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Associate:

Dated:    19 December 2014

REASONS FOR JUDGMENT

PAGONE J

134    I have read the judgment of Kenny and Robertson JJ in draft and agree that the appeal should be dismissed with costs.

Associate:

Dated:    19 December 2014