FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Agricultural and Veterinary Chemicals Code - registration of chemical product for agricultural use - National Registration Authority (“NRA”) obliged to register chemical product if satisfied about all matters in a specific list - NRA empowered to register either unconditionally or subject to conditions - conditions to be those “that the NRA thinks appropriate” - provision made for certain specified decisions of NRA to be reviewable by the Administrative Appeals Tribunal (“AAT”) - decision to register product unconditionally not reviewable - decision to register subject to particular conditions is reviewable - NRA registered product subject only to two conditions relating to “use by date” (“the Conditions”) - second respondent (“the Coalition”) applied to AAT for review of NRA’s decisions to register product, to refuse Coalition’s request for reconsideration of registration and not to suspend registration - Coalition later amended application to seek review of the Conditions - AAT held that Coalition had requisite standing to apply for review - AAT ordered NRA to lodge documents relevant not only to its decision to impose the Conditions but also its decision to register the chemical product - NRA sought judicial review of those two AAT decisions - at hearing Coalition conceded that it was not interested in challenging the appropriateness of the Conditions, but was concerned to have other conditions (relating to risk to animals and humans) imposed as an incident of registration of the product - whether AAT’s jurisdiction or power of review extended to consideration of the imposition of other conditions unrelated to the “use by date” of the chemical product, or was confined to review of the appropriateness or otherwise of the particular conditions imposed - if the latter, whether, in view of Coalition’s concession, the review before the AAT should proceed.

Judiciary Act 1903 (Cth), s 39B

Agricultural and Veterinary Chemicals Code Act 1994 (Cth)

Agvet Code ss 3, 10, 14, 20(1), 23, 167(1)(b)

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 27, 29, 37

Felton v Mulligan (1971) 124 CLR 367 applied

Fencott v Muller (1983) 152 CLR 570 applied

Smiles v Commissioner of Taxation (1992) 37 FCR 538 referred to

Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd & Ors (1994)

120 ALR 373 distinguished

NATIONAL REGISTRATION AUTHORITY v DEPUTY PRESIDENT T E BARNETT and ASSOCIATE PROFESSOR S D HOTOP (SENIOR MEMBER)

and DEFENCE COALITION AGAINST RCD INC

No. WAG 54 of 1997

CARR J

PERTH

8 MAY 1998

GENERAL DIVISION

MINUTE OF ORDERS

THE COURT ORDERS AND DECLARES THAT:

1.         The second respondent having conceded that it has no interest whatever in the two particular conditions which the first respondent imposed, on 16 September 1996, upon registration of the chemical product “Rabbit Calicivirus Injection” (Registered Number 48628) but in instituting its application dated 20 November 1996 (“the second respondent’s application”) to the Administrative Appeals Tribunal, is concerned that further or other conditions ought to have been imposed as an incident of registration, IT BE DECLARED that the Administrative Appeals Tribunal, in those circumstances, does not have the jurisdiction or power further to entertain, hear or determine the second respondent’s application to it.

2.         The decision of the Administrative Appeals Tribunal made on 25 February 1997 and the directions made by it on 11 April 1997 (as amended on 21 April 1997) be set aside.

3.         The second respondent’s application be remitted to the Administrative Appeals Tribunal to be dealt with according to law.

4.         The second respondent pay one half of the applicant’s costs of the application.

5.         Any party shall have liberty to apply on seven days written notice.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DIVISION

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for an order of review of two interlocutory decisions made by the Administrative Appeals Tribunal.  Those decisions were made in the course of an application by the second respondent, Defence Coalition Against RCD Inc (“the Coalition”) for a review of decisions of the applicant, National Registration Authority (“the NRA”) in relation to registration of a chemical product, namely, “Rabbit Calicivirus Injection” (“the Product”) subject to particular conditions.  The NRA made that decision under the co-operative statutory scheme described below.  The application to this Court is expressed as having been brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth).  The Tribunal has filed a submitting appearance.

FACTUAL BACKGROUND

The NRA is the body established by the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) (“the Administration Act”) for the purpose of administering a code known as “the Agvet Code”.  The Agvet Code forms the schedule to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (”the Code Act”).  The Coalition is a body incorporated, on 2 April 1996, under the Associations Incorporation Act 1987 (WA).  On 24 January 1996 the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”) lodged with the NRA an application under s 10 of the Agvet Code for registration of the Product under that code.  The NRA made an evaluation of the Product.  In the course of that evaluation the NRA received expert advice from the Bureau of Resource Sciences, the Therapeutic Goods Administration, Environment Australia, Worksafe Australia and from certain States and Territories.  On 16 September 1996 the NRA granted the CSIRO’s application for registration of the Product and registered the Product subject to two particular conditions.  Those particular conditions were, first, that the label on the container for the Product was to contain an expiry date not greater than 12 months after the date of manufacture, and, secondly, that real time stability data was to be provided to support the nominated shelf life, within eighteen months of registration (“the Conditions”).  It seems to be common ground that the Conditions were imposed out of concerns for the stability of the Product over periods of time.  The NRA’s statement, lodged with the Tribunal under s 37 of the AAT Act, explains that the CSIRO had conducted tests over 16 weeks which showed that the Product was stable at 4 degrees Celsius.  The stability studies were incomplete at the relevant time.  Accordingly the NRA stipulated an interim shelf life of 12 months on the basis of extrapolating from those incomplete studies (Condition 1).  Condition 2 was imposed to require CSIRO to complete the stability studies in order to confirm that the Product retained an acceptable standard for 12 months.

On 20 November 1996 the Coalition applied to the Tribunal for review of certain decisions said to have been made by the NRA.  In its application as originally filed, the Coalition sought review of the NRA’s decision to register the Product, and two decisions made on 18 October 1996, namely, a decision not to reconsider registration and a decision not to suspend or cancel registration of the Product.

In its application as originally lodged with the Tribunal, the Coalition did not seek review of the NRA’s decision to impose the Conditions.  However, by amendment made on 15 January 1997, the Coalition added that decision (i.e. to impose the Conditions) to the list of decisions in respect of which it sought review.  On 30 April 1997 the Tribunal ruled that it had no jurisdiction to review the decisions said to have been made on 18 October 1997.  In the meantime, by a letter dated 6 December 1996 the NRA’s then solicitor had objected to the application on the basis that the Tribunal lacked jurisdiction to review the decisions in respect of which, at that stage, the Coalition was seeking review, i.e. those relating to registration and continued registration of the Product.  On 20 December 1996 the Tribunal decided (in what was described as a “Preliminary Ruling”) that it had jurisdiction pursuant to s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 167(1)(b) of the Agvet Code to review the NRA’s decision to register the Product subject to the Conditions.  The NRA then made submissions to the Tribunal (to which the Coalition responded) to the effect that the Coalition did not have standing because the Tribunal’s review was confined to a review of the conditions imposed by the NRA, pursuant to ss 20(1) and 23 of the Agvet Code, on registration of the Product.  On 25 February 1997 the Tribunal ruled that the Coalition had standing pursuant to s 27 of the AAT Act to apply to it for a review of the NRA’s decision to register the Product subject to particular conditions and that that application for review had been made by the Coalition in accordance with s 29 of the AAT Act.  That is the first of the two decisions in respect of which the NRA seeks judicial review in this application (“the First Decision”).  On the same date (25 February 1997) the Tribunal directed the NRA to lodge the documents referred to in s 37 of the AAT Act within 28 days.  In response to that direction, the NRA lodged with the Tribunal the documents relevant to its decision to register the Product subject to particular conditions.  That is, the documents lodged were those relevant to the decision to impose the Conditions.  On 11 April 1997 the Tribunal directed the NRA to lodge “all materials relevant to the decision to register the Product and the decision to impose conditions on the registration”.  On 21 April 1997 the Tribunal issued a direction varying its direction of 11 April 1997 in certain respects.  One such variation was to amend that part of the order set out immediately above so that it read “all materials relevant to the decision to register approve registration of the Product and the decision to impose conditions on the registration.”  The Tribunal’s direction of 11 April 1997 (as amended by the direction made on 21 April 1997) is the second decision in respect of which the NRA seeks judicial review in this application (“the Second Decision”).  In essence, the NRA contends that (assuming that the Coalition has standing to make the application to the Tribunal, which it denies) although it is obliged under s 37 of the AAT Act to lodge with the Tribunal documents material to its decision to impose the Conditions, it is not obliged to include all materials relevant to the decision to approve registration of the Product.  There is undisputed evidence to the effect that if the review extends to the latter decision, the NRA’s legal costs (excluding disbursements such as expert witness fees) would be increased from a range of $30,000 - $50,000 to in excess of $100,000 and, could reach $300,000.

STATUTORY FRAMEWORK

The following description of the statutory framework is taken largely from the reasons for judgment of French J in Fuller v Minister for Primary Industries and Energy and National Registration Authority (Federal Court of Australia, 7 August 1997).  There is in place in Australia a co-operative statutory scheme for the evaluation, registration and control of agricultural and veterinary chemical products.  The scheme was established pursuant to the Administration Act, the Agricultural and Veterinary Chemicals Act 1994 (Cth) and the Code Act.  Mirror legislation is found in the various States of Australia.  The Agvet Code which, as I have mentioned above, forms the schedule to the Code Act makes provision for the evaluation, registration and control of agricultural and veterinary chemical products and for related matters.  The Administration Act establishes the NRA.  The NRA has the functions and powers conferred upon it by the Administration Act and by the Agvet Code of the participating Territories (s 7(1)).  The Agricultural and Veterinary Chemicals Act provides that the Agvet Code is to apply as a law of the participating Territories.  The participating Territories means the Australian Capital Territory and any other Territory declared by regulations in force under s 25 to be a participating Territory.  The Agricultural and Veterinary Chemicals Act sets up a scheme under which the Agvet Code of the participating Territories is to operate in appropriate circumstances as if that code, together with the Agvet Code of each State, constituted a single national Agvet Code applying throughout Australia.  The Agvet Code of each State binds the Crown in right of the Commonwealth, of the Australian Capital Territory and of Norfolk Island (s 14).

The Agvet Code provides for the registration of chemical products.  A person may apply to the NRA for registration of a chemical product (s 10(b)).  There is a notice requirement in the case of chemical products containing active constituents not previously contained in a chemical product registered in any jurisdiction under the Agvet Code or a corresponding previous law of the jurisdiction concerned (s 13).  The notice provision includes a requirement to invite submissions (s 13(1)(b)).  The NRA is obliged to take into account any submissions made in response to such an invitation.  The granting of applications is dealt with in s 14 of the Agvet Code.  The relevant parts of s 14 are as follows:

“14(1)  The NRA must grant an application made under section 10 if it is satisfied of all the matters referred to in subsection (3).

    (2)  If the NRA is not satisfied as mentioned in subsection (1), it must refuse the application.

    (3)  The matters referred to in subsection (1) are the following:

            (a)        that the applicant has complied with subsection 11(1);

            (b)        that any requirement made under section 157 or 159 has been complied with;

            (c)        that, if necessary, section 158 has been complied with;

            (d)        that any requirements prescribed by the regulations in relation to the constituent, product or label, as the case may be, have been complied with;

            (e)        if the application is for approval of an active constituent or registration of a chemical product - that the use of the constituent or product in accordance with the recommendations for its use that the NRA propose to approve:

                        (i)         would not be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues; and

                        (ii)        would not be likely to have an effect that is harmful to human beings; and

                        (iii)       would not be likely to have an unintended effect that is harmful to animals, plants or things or to the environment; and

                        (iv)       would not unduly prejudice trade or commerce between Australia and places outside Australia;

            (f)        if the application is for registration of a chemical product - that the use of the product in accordance with the recommendations for its use that the NRA proposes to approve would be effective according to criteria determined by the NRA for the product;

. . .

[Subsections 4, 5 and 6 provide for the matters to which the NRA may have regard (generally expressed in terms of “such matters as it thinks relevant”) and matters to which it must have regard, when satisfying itself for the purposes of subsection (1) in relation to the requirements of subparagraphs 3(e) and (f)].

The NRA is not to grant an application for registration of a chemical product unless each of its active constituents is an approved active constituent and the NRA also grants an application for approval of a label for containers for the product.  Section 20 is an important provision in this matter.  It provides that if the NRA grants an application for registration of a chemical product it must register the product in accordance with that section either unconditionally or subject to conditions as mentioned in s 23 (s 20(1)).  Section 23 relevantly provides for conditions of registration of a chemical product in the following terms:

“23(1)  The conditions of the approval of an active constituent for a proposed or existing chemical product, the registration of a chemical product or the approval of a label for containers for a chemical product are the conditions that the NRA thinks appropriate.

    (2)  Without limiting subsection (1), registration of a chemical product may be granted:

   (a)    on the condition that the product is supplied only in a container of a kind referred to in the condition or prescribed by the regulations; or

   (b)    on the condition that the product is not supplied in a container of a kind referred to in the condition or prescribed by the regulations.

    (3)  Approval of an active constituent for a proposed or existing chemical product, registration of a chemical product or approval of a label for containers for a chemical product may be granted on the condition that the approval or registration remains in force only for a stated period that is not more than one year.

    (4)  If the approval or registration is subject to a condition referred to in subsection (3) and the conditions of approval or registration have not been varied before the end of the period referred to in the condition, or the end of that period as previously extended under this subsection, so as to remove the condition, the NRA may vary the condition so as to extend the period for a further period of not more than one year or for further periods each of which is not more than one year.”

From the above it can be seen that while one may apply for approval of an active constituent for a proposed or existing chemical product or of a label for containers for a chemical product, one does not apply for approval of a chemical product.  One applies for registration of a chemical product.  If the NRA is satisfied of all the matters referred to in s 14(3) it must grant that application, i.e. it must register the chemical product - see s 14(1) when read with s 10(b).  There is thus a distinction between a decision to register (which must happen if the NRA is so satisfied and must not happen if it is not so satisfied) and the decision to effect such registration either unconditionally or subject to conditions.  That distinction is carried through later in the Agvet Code where separate provision is made for criminal offences in respect of dealings with unregistered chemical products (ss 75 and 78) and dealings with registered chemical products in contravention of conditions of registration (s. 79).

There is also provision in Division 4 of Part 2 of the Act for reconsideration of approval or registration.

Section 167 of the Agvet Code provides for review of twenty-four specified categories of decisions of the NRA.  The relevant parts of that section read as follows:

“167. (1)  An application may be made to the Administrative Appeals Tribunal for review of the following decisions of the NRA:

(a)       a decision under Division 2 of Part 2 to refuse an application for approval of an active constituent for a proposed or existing chemical product, for registration of a chemical product or for approval of a label for containers for a chemical product;

(b)       a decision under Division 2 of Part 2 to approve an active constituent for a proposed or existing chemical product, to register a chemical product, or to approve a label for containers for a chemical product, subject to particular conditions; [emphasis added]

. . .

       (3)  This section has effect subject to the Administrative Appeals Tribunal Act 1975.”

It may be noted that a decision to grant an application for registration of a chemical product is not a decision in respect of which an application may be made to the Tribunal for review.  Nor is a decision to register a chemical product unconditionally so reviewable.

WHETHER TIME SHOULD BE EXTENDED TO ALLOW REVIEW OF THE FIRST DECISION?

To the extent that the NRA invoked this Court’s jurisdiction under the ADJR Act, it sought an order extending the time for lodgment of its application for an order of review of the First Decision (made on 25 February 1997) to 9 May 1997, being the date upon which it filed its application in this Court.   The application for extension of time was not opposed.  Counsel for the NRA explained that, at the relevant time, it had not understood the Tribunal to have held by the First Decision that the application to it for review extended beyond the decision to impose the Conditions.  As counsel for the NRA submitted, there did not appear to be any prejudice to the Coalition if time were extended.  In all those circumstances, and taking into account the relatively short period of extension sought, I would have made an order extending time for the abovementioned period.  However, I do not propose to do so because, for the reasons which appear immediately below, I do not consider that there is any need to do so. 

JURISDICTION

The NRA filed written submissions, citing the relevant case law, to the effect that both of the Tribunal’s decisions attracted the Court’s jurisdiction because they were decisions of an administrative character made under an enactment (the AAT Act) within the relevant definition in s 3(1) of the ADJR Act.  NRA also relied on the Court’s jurisdiction under s 39B of the Judiciary Act.  The Coalition made no opposing submissions.

In my view, it is quite clear that this Court has jurisdiction to review the two decisions identified above, at least under s 39B of the Judiciary Act.  I think that that jurisdiction arises under s 39B(1), because the NRA seeks writs of mandamus and prohibition together with an injunction against the Tribunal.  I consider that jurisdiction is also relevantly conferred by s 39B(1A)(c).  In my opinion, the matter or controversy before the Court is whether the Tribunal has lawfully exercised its powers and is proposing lawfully to exercise its powers under the AAT Act in reviewing the decision of the NRA to impose particular conditions on the registration of the product.  The very subject matter of that controversy owes its existence to the AAT Act and the Agvet Code.  The whole case revolves around and depends upon the proper construction of those legislative provisions and whether the Tribunal is to be restrained from conducting its review in the manner proposed.  Whether the Tribunal may do so and whether the NRA has the right to have the Tribunal restrained from doing so are crucial parts of the matter to be determined in these proceedings - see Felton v Mulligan (1971) 124 CLR 367 at 375, 382-383.  That is the justiciable controversy [a term used in Fencott v Muller (1983) 152 CLR 570 at 603] brought before this Court.  So far as the question whether jurisdiction is also available by virtue of the provisions of the ADJR Act, I propose to take the course followed by a Full Court of this Court in Smiles v Commissioner of Taxation (1992) 37 FCR 538 at 544 and express no opinion on the point.  As that Court observed (on the same page) the question whether, as a matter of discretion, the jurisdiction ought to be exercised, is a separate question.  I now turn to the issues to be decided.

1.         What is the administrative decision which the Tribunal is reviewing?

The NRA says that the Tribunal’s decision on 20 December 1996 that it had jurisdiction to review its (the NRA’s) decision to register the product subject to particular conditions was “prima facie correct” because that is what s 167(1)(b) of the Agvet Code provides.  However, so it was submitted, the scope of the review permitted by that sub-paragraph is limited to the decision to impose the Conditions on registration of the Product. This was because of the statutory context.  That statutory context, so the NRA submitted, was to be summarised as follows:

       .    section 10(b) allows a person to apply to the NRA for registration of a chemical product; 

       .    section 14(1) provides that the NRA must grant an application under s 10 if it is satisfied regarding the criteria set out in s 14(3); 

       .    section 20(1) provides that if the NRA grants an application for registration of a chemical product then it must register the product either unconditionally or subject to conditions as mentioned in s 23;  

       .    section 23(1) provides that the conditions of the registration of a chemical product are the conditions that the NRA thinks appropriate; and 

       .    although s 167(1)(a) provides for a review of a refusal of an application for registration, there is no provision for a review of a decision to register a product unconditionally. 

In written submissions filed on behalf of the Coalition, it was submitted that the words “subject to particular conditions” in the last line of s 167(1)(b) applied only to a decision to approve a label for containers for a chemical product.  At the hearing, Mr A A Jenshel, who appeared as counsel for the Coalition, did not press that submission.  In my opinion, he was quite correct in taking that course.  I think that the presence of a comma after the word “product” and the previous consistent use of commas in that subparagraph makes it clear that the words “subject to particular conditions” apply distributively to each of the decisions described in the subparagraph. 

Then Mr Jenshel submitted that while s 167(1)(b) made the imposition of particular conditions “the touchstone” for a right of review, it did not on its face limit the ambit of the review.  He submitted that the scope of the review was not indicated in the subparagraph and that therefore the matter could be resolved by looking for the intention of Parliament.

I agree that s 167(1)(b) should not be read too literally.  However, I think that Parliament’s intention to exclude the actual decision to register a chemical product from review under the AAT Act has been made sufficiently clear.  The following factors, namely:

       .    the mandatory command of s 14(1) to register an application once the NRA is satisfied of all the matters referred to in s 14(3);

       .    the express provision for review of a refusal of an application for registration; and

       .    the omission of any provision for review of a decision to register unconditionally;

all provide the context and disclose Parliament’s purpose in enacting s 167(1)(b).  That purpose was that there was only to be review of the decision to impose particular conditions upon registration.

Furthermore, in my opinion, Parliament intended that such review was to be limited to considering whether the particular conditions should or should not have been imposed i.e. whether they are “appropriate” - being the adjective found in s 23.  Subject to one proviso, I do not consider that the Tribunal has power to review the question whether other conditions should be imposed.  In other words, I think that the word “particular” in s 167(1)(b) refers to the specific conditions which have been imposed.  I have two reasons for reaching that conclusion.  First, s 20 of the Agvet Code describes the relevant decision in terms of “subject to conditions”.  It does not use the word “particular”.  That suggests a narrowing of the focus, on review, to the particular conditions which were imposed.  Secondly, a decision to register a chemical product unconditionally is not subject to review.  Another possibly relevant contextual matter is the regime for deletion of conditions.  In the present matter, if CSIRO applied to delete the Conditions, nothing in the Code would require the NRA to give public notice or an opportunity to third parties to make submissions.  If the application were granted and the Conditions deleted, no notice of that would have to be given to any party other than CSIRO and there would be no right of review under s 167(1). 

A person seeking review of a decision to impose particular conditions on registration might wish to urge the Tribunal that other conditions should have been imposed.  Those further conditions might be totally unrelated to the subject matter of the particular conditions imposed.  If no conditions at all had been imposed, the decision not to impose those other conditions would have been unreviewable.  I accept the strength of the argument that normally a reconsideration of whether it was appropriate to impose particular conditions would include consideration of whether it might have been appropriate to impose other conditions either in addition to or in substitution for the particular conditions chosen.  However, that must depend upon the statutory context.  The proviso which I have mentioned above arises in the following circumstances.  The AAT might decide that a particular condition imposed was not “appropriate” because another condition (which the NRA had decided not to impose on registration) should also have been imposed on registration.  This might be, for example, because there was such a relationship or interaction with the effect of the condition not imposed and the particular condition imposed as to make it not appropriate to impose the latter on its own.  In re-making the administrative decision, in circumstances such as those, the Tribunal would, in my opinion, still be within the scope of its jurisdiction to review the imposition of particular conditions if it amended or deleted them entirely or if it added other (previously rejected) conditions which would make the particular conditions appropriate.

There are other indications in the Agvet Code of Parliament’s intention to limit review of the NRA’s decisions.  First, by way of example, I refer to an application to vary registration or to vary the conditions of registration.  Only an “interested person” (defined in s 3 as, in essence, the original applicant or the successor or assign of the original applicant) may make such an application - see s 27.  The Agvet Code does not require the NRA to give notice of such an application, nor is it obliged to invite and take into account submissions from third parties.  If the application is refused, the NRA is obliged to give written notice of such refusal only to the applicant.  A decision to refuse an application by an interested person to vary registration or the conditions of registration is reviewable - see s 167(1)(d).  But a decision to grant such an application for variation is not.  However, if the NRA, of its own motion, or after response to a public invitation, acts under Division 4 of Part 2 to vary the conditions of such registration there is provision for review - s 167(e).  A decision under s 48(3) refusing to accept a late application is reviewable, but a decision to accept a late application is not reviewable.  A decision under Part 7 to refuse an application for a permit is reviewable, as is a decision to issue a permit subject to conditions, but a decision to grant a permit unconditionally is not reviewable.  Likewise a decision under Part 7 to refuse, to suspend, or cancel a permit is reviewable but a decision to grant or extend a permit is not reviewable.  In relation to licences under Part 8, a decision to issue a licence is reviewable, as is a decision to issue a licence subject to conditions, but a decision to issue a licence unconditionally is not reviewable.  Again under Part 8, a decision to impose a new condition or to vary an existing condition on a licence is reviewable but a decision to remove a condition is not reviewable.  Finally, a decision under Part 10 to disclose confidential information without the consent of the interested person is reviewable, but a decision to refuse to disclose confidential information is not.  The NRA submitted that a “common thread” ran through all the decisions listed in s 167, namely that they are all decisions which are negative or adverse from the perspective of the interested person.  I do not think that is completely correct.  For example, a decision to vary conditions under Division 4 of Part 2 might involve the removal of a burdensome condition with a beneficial result to the interested person.  However, I think the point is well made that almost all of the decisions which are listed in s 167 as being reviewable are those which have a potentially adverse effect on the interested person.  There is a fairly constant theme that refusals are reviewable and approval subject to conditions are reviewable, but approvals simpliciter are not reviewable.  This gives, in my view, some further, if perhaps slight, indication that Parliament intended only some fairly carefully defined and limited subject matters for review by the Tribunal.  I would not go so far as to accept the submission, put on behalf of the NRA, that the only decisions which may be subject to review by the Tribunal are those decisions which are adverse to the interests of the applicant for registration.  I think, to some extent, that approach puts the cart before the horse by limiting the scope of decisions to review by reference to persons having a relevant interest.  In my opinion, the proper approach is to construe precisely the categories of decisions for which s 167 provides review.  Then one turns to s 27 of the Administrative Appeals Tribunal Act to decide questions of standing. 

On the basis of the statutory context, summarised above, I have concluded that the review should be confined in the manner which I have described above.  It follows, in my view, that the extent of review of the NRA’s decision of 16 September 1996, provided by s 167(1)(b), is to decide whether the imposition of the Conditions, (the two particular conditions in this matter) was “appropriate” - see s 23(1) of the Agvet Code.

A FAIRLY IMPORTANT DEVELOPMENT AT THE HEARING

As I have mentioned above, it was not until 15 January 1997 (after the NRA had submitted to the Tribunal that the review was limited to the decision to impose the Conditions) that the Coalition added the NRA’s decision to impose the Conditions to its list of decisions in respect of which it sought review.  It had not previously complained about the Conditions.  In oral submissions, Mr W S Martin QC (who with Mr D J Bishop appeared as counsel for the NRA) tendered, as part of his client’s case, an affidavit sworn in these proceedings by Mr Donald Fuller on behalf of the Coalition.  Mr Martin pointed out that nowhere in that affidavit was any challenge made to the Conditions.  Mr Jenshel then made a concession.  The concession was that the Coalition “has no interest whatever in the particular conditions imposed in the present case”.  Mr Jenshel explained that the Coalition wanted further or other conditions imposed.  He submitted that the decision to register subject to conditions carried with it the power to impose any number of conditions.  I pause to express the view that, subject to abuse of power, that proposition is correct.  However, Mr Jenshel went further and submitted that this meant that the review should not be confined to the particular conditions imposed.  For the reasons which I have set out above, I have rejected that submission.  That raises the question what should be done by way of judicial review in these proceedings?  The Coalition has expressly eschewed any interest in the sole matter, the imposition of the (“particular”) Conditions, which in my opinion properly forms the subject of review before the Tribunal.  In those circumstances to what extent, if at all, should the Court embark on a determination of the other issues raised in the NRA’s application?

For example, a considerable amount of the hearing was taken up with the question whether the Coalition had standing to make an application for review under s 167(1)(b).  I formed a provisional view that as a result of the application of s 27(2) of the AAT Act, the Coalition was a person whose interests were affected by the decision to impose the Conditions on registration of the product.  That was because I thought (provisionally) that the decision to impose the particular conditions “relates to a matter included in the objects or purposes” of the Coalition.  The express terms of s 27(2) and the authorities (which, in the circumstances I shall not set out) suggest that that subsection is a deeming provision.  Mr Martin made only a formal submission to the contrary.  The words “relates to” are wide, but not unlimited in their operation.  The Coalition’s objects should not be construed narrowly.  They read as follows: 

“1.       Campaigning against the official use of rabbit calicivirus as a biological control agent without first properly consulting the Australian people.

 2.        Exposing material breaches of the Biological Control Act 1984, The Agriculture and Veterinary Chemical Code Act and the Environmental Protection (Impact of Proposals) Act and related matters including unauthorised spreading of disease with the intent of public (government) prosecution. 

 3.        Campaigning to bring about improvement in public accountability for Biological Research Programs in Australia.”

In terms of paragraph 1 of those objects, again on a provisional basis, I considered that the decision whether to impose the Conditions on registration of the Product had a relevantly sufficient relationship to campaigning against the official use of the Product as a biological control agent without prior and proper consultation with the Australian people.  Furthermore, in terms of the second object, that decision could reasonably be said to relate to “related matters” to material breaches of the Agvet Code.  The second of the Conditions requires CSIRO to provide “real time stability data to support the nominated shelf life within eighteen months of registration”.  In my provisional view the imposition of such a decision (to provide further data) was sufficiently related to the third object of the Coalition, namely to campaign to bring about improvement in public accountability for Biological Research Programs in Australia.  Furthermore, reading the objects as a whole and construing those objects and the Coalition’s purposes broadly rather than narrowly, it could, so I thought, be seen that the objects and purposes of the Coalition can be equated with the safe use of the Product.  A decision whether to impose the Conditions on the registration of the Product, could well be said to relate to that matter and thus to a matter included in the objects or purposes of the Coalition, so construed.  Assuming, for the moment, that the Coalition’s objects were sufficiently related [for the purposes of s 27(2) of the AAT Act] to the subject matter of the NRA’s decision to impose the Conditions, that circumstance would entitle it to “trigger a review” - to use the language of Wilcox J in Allan v Development Allowance Authority (1998) 152 ALR 439 at 447.  But, in my view, the review would be confined to a reconsideration of whether it was appropriate to impose the Conditions on registration of the Product.  As the Coalition has no intention of challenging the Conditions there is nothing left for the Tribunal to review.  The Coalition’s application still seeks review of what it described as “formal registration of” the Product.  But the Agvet Code does not provide for review of that decision.  To allow the Coalition’s application to the Tribunal to continue would be to condone what, so it seems to me, amounts to an abuse of the Tribunal’s processes.  I think that the Court should make declaratory and other orders so that the Tribunal, by making an appropriate order, can ensure that the proceedings before it are terminated.  There will be a declaration and other orders to reflect that situation.

Among those orders will be an order setting aside the First Decision and the Second Decision.  In making such an order, I should not be taken to have found that they were wrongly made at the times when they were made.  Rather, they appear to have been made on at least one false premise.  The principal false premise was that the Coalition had any interest in seeking relief in relation to the Conditions.  In other circumstances, I doubt very much whether I would have set aside either order.  I have explained above my provisional views on the question of standing.  On the question of lodging of further documents, I think it would be strongly arguable, in the context of a review confined to particular conditions and the task of deciding whether the imposition of those particular conditions was appropriate, that the Tribunal should have before it all of the documents leading to registration.  But I do not have to decide that issue.

Associate:

Dated:              8 May 1998