FEDERAL COURT OF AUSTRALIA

Animals Australia Federation v Secretary, Department of Agriculture, Water and the Environment [2020] FCA 905

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to amend its originating application for judicial review dated 14 June 2020.

2.    The amending originating application for judicial review dated 15 June 2020 be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Unless a party notifies the Court in writing by 4.00pm on 6 July 2020 indicating opposition to this order as to costs, the applicant pay the respondents’ costs of the application, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

Background

1    The effect of s 8 of the Australian Meat and Live-Stock Industry (Prohibition of Export of Sheep by Sea to Middle East – Northern Summer) Order 2020 (Cth) (Northern Summer Order) is to prohibit the export of live sheep from Australia by a sea-going vessel between 1 June and 14 September in a given year (the prohibition period) if the vessel’s intended voyage is through the Arabian Sea or the Red Sea, north of latitude 11⁰N at any time during the voyage. The Northern Summer Order is made under s 17 of the Australian Meat and Live-stock Industry Act 1997 (Cth).

2    Section 8 of the Northern Summer Order specifically provides that:

The holder of a sheep export licence must not export a consignment of sheep from Australia by sea on a vessel:

(a)    that leaves an Australian port during the period starting at the start of 1 June in     a year and ending at the end of 14 September in that year; and

(b)    that will travel, or travels, through waters in the Arabian Sea, or the Red Sea,     north of latitude 11⁰N at any time during its voyage.

Pursuant to s 11(1) of the Northern Summer Order a holder of a sheep export licence may apply to the respondent Secretary for an exemption from the prohibition in s 8.

3    Section 12 of the Northern Summer Order provides:

Secretary may decide whether to grant exemption

(1)        On receiving an application made under section 11 for an exemption, the     Secretary may decide:

(a)    to grant the exemption; or

(b)    not to grant the exemption.

Secretary may request further information or documents

(2)    For the purpose of making a decision in relation to the application, the     Secretary may, in writing, request the applicant to give the Secretary further     specified information or documents relevant to the application.

Grounds for granting exemption

(3)    The Secretary may grant the exemption if the Secretary is satisfied, having     regard to any matter that the Secretary considers relevant, that it is appropriate     to grant the exemption.

Exemption may be granted subject to conditions

(4)    The secretary may grant an exemption under paragraph (1)(a), subject to any     conditions that the Secretary considers are necessary.

(Notes omitted.)

4    The Secretary is required to give the applicant an instrument of exemption if the Secretary decides to grant an exemption: see Northern Summer Order, s 13(1). If the Secretary decides not to grant an exemption, the Secretary may notify the applicant, in writing, of the decision, and the notice must include the reasons for the decision: see Northern Summer Order, s 13(2).

5    On or about 2 June 2020, a delegate of the Secretary decided not to grant the second respondent, Rural Export & Trading (WA) Pty Ltd (RETWA) an exemption under s 12(1) of the Northern Summer Order (the first decision). This decision was effectively reversed a little over ten days later when another delegate of the Secretary decided to grant such an exemption to RETWA (the second decision). The applicant challenges the second decision, which was made on or about 13 June 2020, by an amended originating application for judicial review dated 15 June 2020.

6    The applicant’s originating application was the subject of mention before a duty judge on Sunday 14 June 2020, and came before me as duty judge on Monday 15 June 2020. The first respondent requested that there be an immediate final hearing, to which course the applicant and the second respondent agreed. The matter was heard on 15 and 16 June 2020, and judgment was given on 16 June 2020, dismissing the application. What follows are my reasons for this judgment.

7    The applicant relied on two affidavits affirmed by its Chief Executive Officer (CEO), Ms Glenys Oogjes, on 14 June 2020 and 15 June 2020. In her first affidavit, Ms Oogjes provided details about the applicant’s constitution, objects and areas of engagement; its actions regarding the first and second decisions; the impact of the second decision on the applicant; and the applicant’s actions with respect to live animal exports from April 2018 to the introduction of the Northern Summer Order on 31 March 2020 and in monitoring animal welfare issues in the live export industry prior to April 2018 and other activities with respect to animal welfare issues.

8    In opposition, the Secretary relied on an affidavit affirmed by Joffrid Mackett on 15 June 2020 and an affidavit sworn by Jadd Sanson-Fisher on 15 June 2020. All four affidavits were in evidence and there was no cross-examination.

The parties

First respondent

9    As the Secretary to the Department of Agriculture, Water and the Environment (the Department), the first respondent was the relevant decision-maker under s 12 of the Northern Summer Order. The first decision and the second decision were each made by a delegate of the Secretary.

Second respondent

10    The second respondent was the applicant for an exemption from the prohibition in s 8 of the Northern Summer Order and the company seeking to export live sheep from Australia by ship to Kuwait in the prohibition period.

The applicant

11    Briefly stated, Animals Australia Federation, which is now a company limited by guarantee, and its predecessors have been in existence for over forty years. Animals Australia has about 40,124 individual members and monthly donors, and about 1.666 million Facebook followers.

12    The corporate constitution of Animals Australia provides that the company is established with the purpose of preventing or relieving the suffering of animals by:

(a)    investigating and exposing animal cruelty and providing animals with the strongest representation possible;

(b)    endeavouring to obtain the support of government and the community to prevent and prohibit animal cruelty;

(c)    providing education to inspire and empower the community to live cruelty-free lifestyles; and

(d)    strengthening the animal protection movement.

13    The company’s Statement of Purpose and Rules, which were adopted in 2005, provide that its principal purpose is “to protect animals from exploitation and suffering and permanently improve the lives of all animals in Australia”.

Further, but without in any way limiting the generality of the foregoing:

a)    to conduct campaigns to inform and educate the community about improving the lives of animals in Australia and advocate change;

b)    to initiate and facilitate the development, enactment and enforcement of effective animal protection legislation;

c)    to facilitate, promote and encourage stronger protection of animals where legislation does not apply;

d)    to provide a means whereby those bodies who subscribe to the aims and objects of the Society can have regular and formal communication with each other, and can consider matters of common interest and determine common policy;

e)    to act as a representative on that common policy and to do all things necessary to secure the adoption of or action of that common policy

f)    to provide a means of liaison with animal protection organisations; and

g)    to provide information and assistance to any individual members and member groups where possible.

…

14    Animals Australia has been actively involved in animal welfare issues relating to Australia’s live export trade since its inception, and has a long history of contributing to government reviews and enquiries relevant to the live export trade. It has conducted over 80 investigations in live export destination countries and documented the treatment of animals exported from Australia. It has lodged around 64 complaints and reports with the Department into breaches of animal welfare laws by Australian exporters. It has been consulted by the Department on many occasions in relation to issues relevant to animal welfare in the live export industry. It has also been involved in many other issues relating to animal welfare. Since the 1980s, it has been consulted during the process of updating Model Codes of Practice for Animal Welfare and, more recently, it has been directly involved with the conversion of Codes of Practice to Australian Animal Welfare “Standards and Guidelines”.

15    Its CEO deposed, and it was not contested, that Animals Australia played a crucial role in and contributed to government-initiated independent reviews relating to live-stock exports following the airing of footage exposing the deficiencies in exporters’ conduct on the 60 Minutes television program in about April 2018. In a media statement on 5 April 2018 the relevant Minister called for an urgent investigation into the conditions of live-stock export and thanked Animals Australia for bringing the conditions affecting “the live shipments of sheep sent from Perth into parts of the Middle East” to his attention. Following a further meeting with representatives of Animals Australia, on 10 April 2018 the Minister announced a review of conditions for the export of sheep into the Middle East during the Northern Hemisphere’s summer (Northern Summer Review). Animals Australia subsequently met with Dr Michael McCarthy who conducted the Northern Summer Review, provided him with its submissions and later attended a private briefing concerning the Minister’s response to Dr McCarthy’s report. On or about the same date, the Minister announced a Review of the Regulatory Capability and Culture of the Department of Agriculture and Water Resources in the Regulation of Live Animal Exports (Regulatory Capability and Culture Review). The Regulatory Capability and Culture Review was conducted by Mr Philip Moss AM. Animals Australia met with Mr Moss and made submissions to assist his Review. It was recognised as a key stakeholder in the subsequent report.

16    In the ensuing period (April 2018 – May 2020) Animals Australia has continued to engage with the Department directly through meetings, briefings, submissions and detailed correspondence primarily with respect to the avoidance of heat stress on live animal shipments from Australia. Animals Australia has also met with the Inspector General of Live Export, a post created after April 2018. Animals Australia is also recognised as a key stakeholder in this field through its membership of the Live Export Animal Welfare Advisory Group (LEAWAG), which is convened by the Department to continue consultation with stakeholders. LEAWAG was formed in 2018, in order to “discuss and provide strategic advice to the [D]epartment about animal welfare in livestock exports” amongst other things.

The first decision

17    On 26 May 2020, reports in the media alerted Ms Oogjes to the fact that a livestock ship (the Al Kuwait) had docked in the Port of Fremantle in order to take sheep and cattle to the Middle East before the prohibition period. The company responsible for the intended shipment was RETWA.

18    On 27 May 2020 RETWA applied for an exemption from s 8 of the Northern Summer Order. Also on 27 May 2020 Ms Oogjes became aware from an online ABC news article that there was a possibility that a live export exemption might be made to allow the sheep to be loaded onto the Al Kuwait. Ms Oogjes called and emailed representatives of the Secretary the same day, to raise concerns about any grant of exemption. As a result, a meeting via online conference call was set up for the following day between representatives of Animals Australia and of the Secretary. During the meeting on 28 May 2020, Animals Australia made submissions and raised concerns regarding whether such an exemption should be granted to RETWA.

19    A follow-up email sent the same day by Ms Shatha Hamade (legal counsel for Animals Australia) provided what its representatives saw as the “headline summaries of the points raised” at the meeting, including that:

1.     Decisions about whether to grant or not grant an exemption are expected to be based on whether animal health and welfare can continue to be protected if an exemption is granted. As such, we raised the known risks, agreed findings and available science regarding the very real risk of heat stress during shipments to the Middle East from June onwards. In particular, we referred to:

a.    The McCarthy Review;

b.    The [Heat Stress Risk Assessment] Technical Reference Panel;

c.    The available and applied relevant scientific analysis, and the climatological analysis by the Bureau of Meteorology; and

d.    The Department’s 2020 [Regulation Impact Statement] for Live sheep exports to, or though, the Middle East – Northern Hemisphere summer … .

2.    [Australian Bureau of Agricultural and Resource Economics and Sciences] meat export data from Australia to the Middle [E]ast, which demonstrates a thriving trade and a willingness for these countries to accept boxed/chilled meat in lieu of live animals.

…

Dr Melissa McEwen, for the Secretary, made a brief response.

20    On 29 May 2020, Ms Hamade, on behalf of Animals Australia, emailed a letter to Dr McEwen making further submissions in relation to the grant of an exemption to RETWA. Amongst other things, this submission drew attention to the fact that, with respect to s 12 of the Northern Summer Order, the Explanatory Statement (ES) specifically stated:

The decision-maker may grant an exemption if he or she is satisfied that the matters in subsection 12(3) are met. It is anticipated that exemptions will only be granted in exceptional circumstances.

The submission referred to the Department’s Export Advisory Note 2020-3 issued on 17 March 2020, and attached an article published in Countryman on 28 May 2020 as well as an official statement received by Animals Australia from Professor Clive Phillips, Director of the Centre for Animal Welfare and Ethics, University of Queensland.

Dr McEwen replied by email dated 30 May 2020, stating, amongst other things, that:

… the information and submissions received from Animals Australia will be brought to the attention of the decision-maker and taken into account insofar as they are considered to be relevant to the decision.

21    On 31 May and 1 June 2020 Ms Hamade sent further emails to Dr McEwen, containing further submissions. In its 31 May 2020 email, Animals Australia sought to raise three matters. They were:

A.    Secretary (or his delegate) considering advice from a qualified animal welfare scientific expert

B.    Independent Observer Reports showing heat stress present even in May voyages

C.    Not “exceptional circumstances”

Under “A”, Animals Australia set out passages from a public statement by the Australian Veterinary Association directed to the “Al Kuwait matter”, which amongst other things stated that “the welfare risks to the animals are unacceptably high in June”.

22    In its subsequent email, Animals Australia provided the Secretary with two reports by Dr John McBride, a meteorological consultant. One report was dated 31 May 2018 and entitled “The Probability of encountering extreme wet bulb temperatures during a live sheep export to the Middle East during June 2018 or July 2018”. The other report was dated 1 June 2020 and entitled “Expert Opinion on probability of an export vessel to Persian Gulf encountering wet bulb temperatures exceeding 29 Celsius”.

23    On 2 June 2020, Animals Australia received an email from Ms Tina Hutchinson, Assistant Secretary, Live Animal Export, Live Animal Export Division, advising that a decision had been made not to grant an exemption to RETWA, and that a detailed statement of reasons would be forthcoming.

24    A public statement of reasons dated 3 June 2020 was subsequently published, which also identified Ms Hutchinson as the decision-maker. It suffices to note here that these reasons referred to the history of the Northern Summer Order, gave an overview of the legislative scheme, and set out the substance of the application by RETWA for exemption from the s 8 prohibition. These reasons acknowledged that the decision-maker:

… considered submissions received by the Department from Animals Australia, RSPCA Australia, the Australian Veterinary Association Limited (AVA), the Pastoralists & Graziers Association of Western Australia (Inc) (PGA), and the AAV Working Group. I also considered representations received by the Minister for Agriculture from Livestock Transport & Trading Company (KLTT) and the Embassy of the State of Kuwait.

RETWA was issued three invitations to comment on potentially adverse material before I reached my decision. Each of RETWA’s responses and supporting information were taken into account.

(Bold in original.)

25    After reviewing the meteorological and other evidence, Ms Hutchinson stated that:

As a whole, I was not satisfied that the Updated Management Plan provided adequate mitigation against the animal welfare impacts if the significantly higher [Wet Bulb Temperatures or WBTs] expected to be experienced by the MV Al Messilah if it departed Australia on or after 5 June 2020. I also found that it did not provide adequate mitigation against the animal welfare impacts of the significantly higher WBTs expected to be experienced by the MV Al Kuwait if it departed on or about 15 June 2020. …

…

I gave some weight to the submissions from Animals Australia, RSPCA Australia, the AVA and Professor Phillips insofar as they gave voice to the concerns of segments of the community …

… In circumstances where I was not satisfied that adequate mitigation measures could be put in place to reduce the risk of harm to the live-stock to an acceptable level, I found that there was a risk that if the exemption is granted, a further animal welfare incident (comparable to the incidents in 2017 on board the MV Awassi Express) would cause significant harm to the sustainability of live animal exports. …

…

I found that I was not satisfied that there were adequate reasons to justify granting the exemption from the Northern Summer Order, bearing in mind the rationale behind the prohibition. … I found that there was a significant risk of heat stress if the exemption is granted. I considered that the risk was unacceptable and was not adequately mitigated by the Updated Management Plan, any additional conditions that may be imposed by the Department, the available information on the past performance of the exporter, and/or the available information of the past performance of the proposed vessels. I found that the nature and extent of the risk to the health and welfare of the livestock weighed heavily against granting the exemption.

26    It may be accepted that, as Mr Sanson-Fisher, a legal practitioner employed by the Department, deposed, the Department did not provide a copy of RETWA’s exemption application to Animals Australia or formally invite it to make submissions concerning the first decision. The Department notified Animals Australia of the first decision and of the statement of reasons by sending a group email to a number of recipients, which included Animals Australia.

The second decision

27    Apart from RETWA, there is nothing to indicate that Animals Australia or the other bodies that had made submissions to the Secretary respecting the first decision were aware of the Secretary’s consideration of a second application for exemption made by RETWA until after the second decision had been made.

28    The evidence is that Animals Australia first became aware that RETWA had made a second exemption application when it received an email from Dr McEwen on the morning of 13 June 2020. This email stated that a decision had since been made to grant RETWA an exemption from the prohibition in s 8 of the Northern Summer Order following RETWA’s submission of a second application for an exemption. Dr McEwen’s email advised that:

The exporter’s second application detailed an alternative approach for managing the voyage, including animal welfare.

The exemption includes strict measures to protect the health and welfare of the sheep, including:

•    Utilising the livestock vessel the Al Kuwait, a purpose built livestock carrier

•    Unloading at one port only

•    Not loading an area of the vessel known to be hotter due to engine room location

•    Limiting the weight of the sheep loaded on the vessel, focussing on those sheep most well adapted to tolerating heat

•    Providing additional pen area over that currently required on any livestock voyage and which exceeds those required under the updated Australian Standards for the Export of Livestock

•    Requiring loading to cease by midnight on 17 June 2020

An Australian Government Accredited Veterinarian will accompany the voyage, with additional reporting requirements placed on the exporter.

29    In the published reasons for the second decision, the decision-maker, Mr David Hazlehurst, Deputy Secretary and a delegate of the Secretary for these purposes, stated that in making the second decision:

I gave careful consideration to the application and all of the supporting information including the responses received from RETWA to the Department’s invitation to comment. I also took into account all of the material before the Department in relation to the earlier application for exemption made by RETWA on 27 May 2020 and refused by the Department on 2 June 2020. This included all of the information and submissions received from third parties.

On balance, I was satisfied that it was appropriate to grant the exemption sought by the application made on 8 June 2020. However, I decided to grant an exemption subject to a number of conditions, pursuant to s 12(4) of the Northern Summer Order.

30    In their reasons for decision, both the decision-makers for the first decision and for the second decision stated:

The Department consulted widely in making the policy decision that led to the introduction of the [Northern Summer Order]. The Department considered recommendations from the McCarthy Review, the HSRA review, public submissions to the draft [Regulation Impact Statement on live sheep exports to the Middle East] and a policy options discussion paper. Scientific analysis was considered including climatological analysis by the Bureau of Meteorology (2019 BOM report), data provided by the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES), and voyage reports from Australian Government Accredited Veterinarians (AAVs) and independent Observers (IOs) on board vessels during 2018 and 2019 Northern Hemisphere summer months.

… Welfare based non-government organisations primarily supported managing heat stress in sheep by prohibiting exports to the Middle East for the whole six months of the Northern Hemisphere summer or by ceasing the trade altogether.

(Bold in original.)

31    After referring to s 8 of the Northern Summer Order and its ES, Mr Hazlehurst said that:

On 8 June 2020, the Department received a new application for exemption made by RETWA pursuant to s 11 of the Northern Summer Order. The new application was substantially different from the previous application made by RETWA in the degree of specificity, the number and type of live-stock to be exported, and the mitigation measures proposed. In particular, the application was made to export approximately 50,000 sheep (Consignment) using the MV Al Kuwait departing Fremantle as soon as possible after the vessel is cleared on 13 June 2020 and before 24:00 on 17 June 2020 to ensure discharge in Kuwait prior to the end of June 2020.

In support of its application, RETWA provided a Management Plan for the proposed voyage, and expert opinions in relation to meteorological data and impact on animal welfare. RETWA subsequently provided further meteorological data and expert opinion, logger data analysis and an Updated Management Plan. I gave careful consideration to all of the information received from RETWA.

I also considered information received by the Department from the Australian Government Bureau of Meteorology (Bureau), regarding forecasts for the Persian Gulf for June 2020 (Bureau Forecast and Updated Bureau Forecast).

Additionally, I considered submissions previously received by the Department from Animals Australia, RSPCA Australia, the Australian Veterinary Association Limited (AVA), the Pastoralists & Graziers Association of Western Australia (Inc) (PGA), and the AAV Working Group. I also considered representations received by the Minister for Agriculture from Livestock Transport & Trading Company (KLTT) and the Embassy of the State of Kuwait.

RETWA was issued an invitation to comment on potentially adverse material before I reached my decision. Each of RETWA’s responses and supporting information were taken into account.

(Bold in original.)

32    Mr Hazlehurst accepted that “a global pandemic is an exceptional circumstance”, but found that:

… the COVID-19 outbreak onboard the MV Al Kuwait would not in itself warrant granting the exemption, particularly if it presented an unacceptable risk to animal health and welfare.

33    Mr Hazlehurst said that he gave “weight to RETWA’s concerns about the significant financial and ongoing trade impact that a decision to refuse to grant the exemption would have on its business operations and the interests of other entities and persons associated with it”. He said:

I was satisfied that a decision to refuse to grant an exemption would adversely impact RETWA’s trade relationship with [Kuwait Livestock & Trading Company] and Australia’s trade relationship with the State of Kuwait, and might further incentivise them to develop supply chains away from the Australian market.

Overall, I gave weight to the financial and ongoing trade impact that a decision to refuse to grant the exemption would have on RETWA’s business operations and the interests of other entities and persons associated with it. However, bearing in mind the rationale behind the Northern Summer Order, I balanced this against the risk of harm to animal health and welfare during the proposed voyage.

34    Mr Hazlehurst had regard to the likelihood that his decision might adversely affect “trading partners’ confidence in the Australian Government’s regulatory oversight of exported goods”, and that this might affect the viability of the live animal export industry. He also had regard to the adverse impacts on industry, including the submission from the Pastoralists & Graziers Association of Western Australia (Inc) (PGA) that “if the Consignment were diverted into the domestic market, it would reduce live-stock prices for farmers, as well as for meat processors, who were already experiencing freight difficulties”.

35    Mr Hazlehurst added that:

I gave some weight to the submissions from Animals Australia, RSPCA Australia, the AVA and Professor Phillips insofar as they gave voice to the concerns of segments of the community, but I found that they were not representative of the community as a whole. …

I found that the Australian public would expect that in deciding whether or not to grant the exemption, the Secretary (or his delegate) would have due regard to the rationale underlying the prohibition, and balance the impact on the exporter and industry against the risk to the health and welfare of the live-stock.

36    Mr Hazlehurst gave considerable attention to a 2019 Bureau of Meteorology (BOM) report and two forecasts for the Persian Gulf for June 2020, Dr Buckley’s advice on meteorological conditions (provided by RETWA), Dr McBride’s report dated 1 June 2020 (provided by Animals Australia), Departmental information and advice. Mr Hazlehurst continued:

I noted that duration was a consideration in determining the overall animal welfare impact of exposing sheep to high WBTs. … I was satisfied that the risk of heat stress in Kuwait Port for a departure on or after 15 June 2020 was very low.

I considered the mitigation strategies identified in RETWA’s Updated Management Plan, the AWB analysis of the adequacy of those strategies, and the additional heat stress mitigation measures identified by the Department’s Animal Welfare Branch. These risk mitigation strategies included strategies in relation to removing live-stock at potentially higher risk from the Consignment (heavier, fatter sheep), loading the vessel with a higher allometric K-value to reduce stocking density, additional inspections and preparation, ventilation of the MV Al Kuwait, active voyage management by expert Voyage Management Team, animal welfare monitoring and management, and animal management during discharge.

I identified some limitations to aspects of the mitigation strategies but considered that they could be addressed by imposing a condition that required the removal of heavier sheep and ensured that additional drafting measures occurred effectively at the Registered Premises …

Overall, I was satisfied that the Updated Management Plan incorporated more elements of additional measures beyond those already mandated in [Animal Standards for the Export of Livestock], the Northern Summer Order and RETWA’s Approved Arrangement than the previous management plans submitted in support of the previous exemption application. I gave weight to these strategies and found that while each of the measures was individually inadequate, when considered cumulatively, they provided substantial albeit not complete mitigation against the animal welfare impacts of deck WBTs of up to 31.4⁰C. I considered that the imposition of conditions would provide further mitigation against the risk of adverse animal welfare outcomes.

37    In his conclusions, Mr Hazlehurst said in effect that he balanced the considerations favouring the grant of an exemption against the health and welfare of the animals on board the vessel during the proposed voyage, giving significant weight to the available forecasting data for wet bulb temperatures (WBTs) during the voyage and the duration of the animals’ exposure to WBTs above 29⁰C. He added that he found that “the risk of heat stress posed by the forecasted WBTs was not fully but substantially mitigated by the combination of measures detailed in the exemption application and supporting material …”, and identified conditions that he would impose to further mitigate the risk of heat stress. He specifically added that he had had regard to the submissions “from third parties in respect of RETWA’s first exemption application, including from Animals Australia, RSPCA Australia, the AVA and Professor Phillips”, saying that he gave “some weight to these statements”.

38    Mr Hazlehurst concluded:

Overall, and weighing all of the matters for and against a decision to grant an exemption, I was satisfied that in the exceptional circumstances resulting from the global pandemic and bearing in mind the weather forecasts for the journey, the measures in place to mitigate the risk of heat stress, and the factors weighing in favour of an exemption as set out above, including the likely impact on RETWA and related persons, the industry, and Australia’s trade relations, it was appropriate to grant the exemption pursuant to s 12(1)(b) of the Northern Summer Order.

Accordingly, I granted the exemption from s 8 of the Northern Summer Order subject to a number of conditions, being that: the vessel used for the consignment is the MV Kuwait; the loading ceases by 2400 on 17 June 2020; there is only one port of discharge; the vessel is stocked at a minimum allometric stocking density of 0.037; no sheep are loaded onto an area of the deck on the ship identified as presenting a risk of higher deck WBTs; the sheep types averaging above 50kg are removed from the consignment; sheep with wool of over 20mm are removed from the consignment; at least one additional stock person accompanies the voyage; and the export and related loading, voyage and discharge are otherwise undertaken in line with the exemption application and the Updated Management Plan.

39    After the second decision, the consignment of sheep was required to go through the normal export clearance process before it could depart. This meant that RETWA needed to obtain permission to load the sheep onto the vessel. Once permission was obtained, the loading of the sheep and fodder was expected to take 1.5 days. Once the sheep were loaded, the Department would carry out an inspection and, if the inspection were satisfactory, then an export permit and health certificate could be issued.

The grounds of the application

40    Animals Australia applied for an order that the second decision be quashed or set aside under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Judicial Review Act) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth), upon the following grounds:

Ground 1: breach of rules of natural justice by reason of affecting of Animals Australia’s interests

29.     In the premises set out in paragraphs 1–7 under the heading, “Details of claim,”     Animals Australia’s interests:

(a)     are affected by the making of decisions like the Decision (viz.,     decisions to grant exemptions from section 8 of the [Northern Summer     Order], subject to conditions or otherwise); and

(b)     attract the protection of the principles of natural justice.

30.     In the premises, Animals Australia was entitled to be heard:

(a)     in relation to whether, on or after 08 June 2020, RETWA should be     granted an exemption from section 8 of the Northern Summer Order;     and

(b)     specifically, in relation to the Second Application.

31.     In fact, Animals Australia was not heard in relation to either of the matters     stated in paragraph 30 above.

32.     In the premises, a breach of the rules of natural justice occurred in connection     with the making of the Decision within the meaning of section 5(1)(a) of the     ADJR Act, or the Decision is otherwise affected by jurisdictional error so as to     justify the grant of relief in exercise of the Court's jurisdiction under section     39B(1A)(c) of the Judiciary Act.

Ground 2: breach of rules of natural justice by reason of departure from expected decision-making procedure

33.     In the premises set out in paragraphs 11–21 above, and in particular those set     out in paragraphs 15 and 17 above, the Department’s conduct generated an     expectation on the part of Animals Australia that the procedure that it would     follow in making decisions in relation to applications for exemptions from (at     least) section 8 of the Northern Summer Order would involve:

(a)     an opportunity for Animals Australia to make submissions in relation     to issues arising on such application; and

(b)     that such submissions would be, “brought to the attention of the     decision-maker and taken into account insofar as they are considered     to be relevant to the decision.”

34.     The procedure in fact followed in making a decision in relation to the Second     Application did not involve:

(a)     the decision-maker giving Animals Australia an opportunity to make     submissions in relation to issues arising on the Second Application; or

(b)     the decision-maker taking into account submissions by Animals     Australia about the Second Application.

35.     Animals Australia was not notified of the intention not to follow the expected     procedure as set out in paragraph 33 above.

36.     In the premises, a breach of the rules of natural justice occurred in connection     with the making of the Decision within the meaning of section 5(1)(a) of the     ADJR Act, or the Decision is otherwise affected by jurisdictional error so as     to justify the grant of relief in exercise of the Court's jurisdiction under section     39B(1A)(c) of the Judiciary Act.

Ground 3: legal unreasonableness in failing to invite representations from the Applicant

37.     Animals Australia made submissions in relation to the First Application.

PARTICULARS

See paragraphs 11–19 above.

38.     Animals Australia’s submissions were considered by Ms Hutchinson in     making the decision in relation to the First Application and weight was given     to them.

PARTICULARS

See First Reasons, pages 4–8.

39.     In considering the Second Application, the Deputy Secretary considered     Animals Australia’s submissions in relation to the First Application and gave     them weight.

PARTICULARS

See Second Reasons, pages 4, 5, 9.

40.     This was despite that the Deputy Secretary considered the Second Application     to be “substantially different” from the First Application.

PARTICULARS

See Second Reasons, page 4.

41.     There was ample time for the Deputy Secretary to have sought submissions     from Animals Australia in regard to those matters that he considered     substantially to differ between the First Application and the Second     Application.

PARTICULARS

The Second Application was lodged on 8 June 2020 and decided on 13 June 2020. In regard to the First Application, Animals Australia made oral and written submissions, including the provision of expert evidence, in a similar time period (27 May 2020 to 1 June 2020).

42.     The Deputy Secretary did not seek submissions from Animals Australia either     in relation to those matters or at all.

43.     It was legally unreasonable for the Deputy Secretary to fail to have sought     submissions from Animals Australia in circumstances where (as pleaded     above):

(a)     it had made submissions in relation to the First Application;

(b)    its submissions were relevant, were considered, and were given     weight in the First Application;

(c)     despite that its submissions remained relevant, were considered, and     were given weight in the context of the Second Application, that     application was substantially different;

(d)     there was ample time for the Secretary to have sought submissions     from Animals Australia.

Standing

Animals Australia

41    The respondents did not dispute that Animals Australia had standing to bring the application as “[a] person who is aggrieved” by the second decision within the meaning of ss 5(1) and 3(4)(a)(i) of the Judicial Review Act, and as having a special interest in the subject matter of the litigation so as to be able to bring an application under s 39B of the Judiciary Act: see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 41-42 (Stephen J) and 75-76 (Brennan J). The respondents also accepted that the second decision was a decision to which the Judicial Review Act applied: see ss 3 and 5(1).

Procedural fairness

Grounds 1 and 2 — Procedural fairness

Animals Australia’s submissions

42    Both grounds 1 and 2 (see above) alleged a breach of natural justice (or procedural fairness as I shall refer to it below).

43    It may be accepted that Animals Australia was not given an opportunity to provide information or submissions regarding the making of the second decision to the decision-maker. The critical question is whether the law required the Secretary to afford it any such opportunity. Animals Australia contended that, although not identical, there was substantial overlap between the nature of the interest sufficient to establish standing and the nature of the interest necessary to attract a duty to afford procedural fairness.

44    In support of ground 1, Animals Australia submitted that in making the second decision the Secretary was obliged to afford it procedural fairness because its interests were sufficiently affected by the decision. Animals Australia supported this contention by reference to the following matters:

(a)    the subject of the decision, which was “to exempt a particular ship, in particular circumstances, on a single occasion” from the prohibition in s 8 of the Northern Summer Order, upon application by RETWA;

(b)    RETWA was entitled to procedural fairness in the making of the second decision upon its application;

(c)    Animals Australia’s interest was particular to it, and not one shared with the general public, or a segment of the general public;

(d)    Animals Australia had “a legitimate and officially-sanctioned or officially-accepted role in the identification of animal welfare breaches, and in the enforcement of animal welfare standards”;

(e)    Animals Australia was the driving force behind the Northern Summer Order and has attained the status of a key stakeholder in relation to animal welfare issues in the live export trade;

(f)    Animals Australia had made a successful application to the Court in Animals Australia Federation v Secretary, Department of Agriculture and Water Resources (VID 688 of 2018) (the applicant’s 2018 matter) in which consent orders were made based an acknowledged denial of procedural fairness on the Secretary’s part.

45    Animals Australia contended at the hearing that the relevant test for whether the applicant was owed an obligation to afford procedural fairness was that stated by Brennan J in Kioa v West (1985) 159 CLR 550 at 620 that:

… the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected.

Reference was also made to Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598.

46    Animals Australia argued that the decision of Lehane J in Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 was relevantly distinguishable from the present case. It submitted that it was not a corporate entity or organisation with a mere emotional concern and that its interest was not akin to that of a segment of the community. Rather, Animals Australia contended that its interest arose from the fact that it was “a body with specific expertise … and insight that it brings to bear … in a complex multidisciplinary area of public administration”, and that that expertise had been recognised and accepted by the Department in the course of the Department’s dealings with it. This expert role translated, in its submission, into a right to be notified of the making of an application for exemption from the prohibition in s 8 of the Northern Summer Order, at least for such time as Animals Australia continued to be recognised by the Department as having this role. In support of these propositions, the applicant referred to meetings between Animals Australia and the responsible Minister, which had been requested by the Minister’s office following the airing of footage of live export in April 2018, and the participation of Animals Australia in the LEAWAG.

47    As indicated above, Animals Australia relied on the orders made in the applicant’s 2018 matter. In that matter, Animals Australia had sought relief in this Court on the basis that it had been denied procedural fairness in respect of two decisions regarding export permits for the transport of livestock. It transpired that the delegate purporting to make one of the two decisions had not had the necessary delegation from the Secretary (the decision-maker under the relevant legislative instrument) and for this reason that particular decision was invalid. The Secretary, who was the first respondent in that proceeding, also conceded, however, that the second decision was affected by jurisdictional error because the deviation from the foreshadowed process of decision-making amounted to a denial of procedural fairness in connection with that decision. Consent orders were made to give effect to the Secretary’s concession. Animals Australia submitted that the concession was correctly made, because the representation combined with the interest of Animals Australia (in the sense described at [46] above) gave rise to an obligation to afford procedural fairness. In this case, counsel properly conceded, however, that any unfairness in the decision-making process “only matters if the person to whom the representation was made had a right or interest that entitled them to fairness in any event, or, perhaps put differently, entitled them to complain about it”. Animals Australia submitted, in effect, that if an obligation of procedural fairness was owed to it in this case in relation to the second decision, it was denied procedural fairness either because it was not heard at all in relation to the second decision, or because the Secretary departed from the expected procedure in making the second decision. In this context, Animals Australia referred to Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 about departures from a foreshadowed process of decision-making (at [17]-[19], [23]-[30], [35] (Kiefel, Bell and Keane JJ) and [60]-[61] (Gageler and Gordon JJ)); and Geelong Community for Good Life Inc v Environment Protection Authority [2008] VSC 185; 20 VR 338 (at [13]-[15] and [26]).

48    In support of ground 2, Animals Australia submitted that an interest, capable of attracting the obligation to afford procedural fairness, arose by reason of the facts and circumstances of the particular case. This ground was put in two ways: first it was said that an interest arose through a course of dealing which created a relevant relationship between the Department and Animals Australia (including the Department’s receipt of its submissions and the outcome of the first decision); and secondly it was said that an interest arose by reason of the Department’s representation to Animals Australia that it would be consulted in making a decision of this kind. In this regard, Animals Australia referred to its submissions and meetings with Departmental representatives in relation to the first decision; to the fact that in making the first decision Departmental representatives had indicated that the decision-maker would consider any relevant material that Animals Australia provided; that its submissions and Dr McBride’s report had been considered and given weight in the making of the first decision and the second decision; and to the fact that it had received direct notification of the first decision and the second decision. It also referred to the email sent by the Department on 13 May 2020 to arrange a meeting between Ms Oogjes and the new incoming Deputy Secretary, Mr David Hazlehurst, as an example of the Department’s recognition that Animals Australia had a special interest and accepted role “as an apex group dealing with animal welfare and the Northern Summer and heat stress”.

49    Noting that it met with the Department’s representatives in relation to the first decision and made submissions that were considered in making the first decision and the second decision, Animals Australia submitted in writing that:

Three points flow from this:

42.1    The Secretary has, in point of fact, treated Animals Australia’s interests as being sufficiently affected by applications for exemption from the Northern Summer Order to hear from Animals Australia. This lends force to the submission, in point of law, that Animals Australia must be heard …

42.2    It shows that there is not any unworkability or indeterminacy arising from a conclusion that the Secretary must afford procedural fairness to Animals Australia in making decisions on exemption applications under the Northern Summer Order. This is not a case where a favourable outcome for Animals Australia might lead to impracticability in future cases, noting that one can readily expect that Animals Australia will continue to be involved in government policy and decisions about the live export trade.

42.3    It is evidence that Animals Australia’s relationship with the decision making function is substantially different from the relationship of the public at large.

(Citations omitted.)

In this connection, Animals Australia noted that it presented detailed submissions and evidence to the Department, including Dr McBride’s expert opinion on meteorological issues.

50    Animals Australia accepted that, in one aspect, its argument was that once the Department had invited Animals Australia to make submissions in relation to the first decision, then it was obliged to so with respect to the making of the second decision. The two decisions were, it said, “on a continuum”. As Animals Australia put it in its written submission:

Animals Australia’s input was considered to be material (as is shown by the treatment of its representations in the context of the first application), yet the decision maker on the second application did not have up-to-date input from Animals Australia in relation to updated application as it then fell for consideration.

It was also said that Animals Australia had a relevant interest in “maintaining the outcome of the first decision” in the second decision, and that the nature of s 12 of the Northern Summer Order, as an exemption from a prohibition, did not stand in the way of recognising that Animals Australia had a relevant interest in this case.

51    The applicant relied on Dr McBride’s report on meteorological issues in relation to the procedural fairness grounds and ground 3, discussed below. As already noted, the reasons for both the first decision and the second decision indicated that the report was considered and given weight by both decision-makers, even though RETWA’s second exemption application was said to be “substantially different” from its first application. At the hearing Animals Australia contended that Dr McBride’s report was based on up-to-date meteorological information, and that this information would have been among the matters updated had it been able to provide information and submissions prior to the second decision. Given the significance of meteorological issues to the second decision, Animals Australia contended in substance that the passage of time between the first decision and the second decision would have led it to place fresh material before the decision-maker before the second decision was made had it been given the opportunity to do so. Animals Australia also referred in this connection to the other material that it would have provided had it been given the opportunity to do so, which, so it contended, would have been relevant and significant: see [83] below.

52    In reply, Animals Australia submitted that there was pertinent material that it would have placed before the decision-maker before he made the second decision had it been afforded an opportunity to do so, including an analysis of the weather information and updated weather information. Counsel for Animals Australia noted that Dr McBride had based his opinion on the most up-to-date information then available to him, being weather information from 29-31 May 2020. He submitted that it was wrong to say, as RETWA had done, that there was nothing more that Animals Australia could have added. He further submitted that the need for speed in making a decision under s 12 of the Northern Summer Order was relevant to the content of any procedural fairness requirement, rather than to Animals Australia’s entitlement to procedural fairness.

The Secretary’s submissions

53    While the Secretary accepted that there was “a degree of relationship” between the interests founding standing to challenge a decision and those attracting an obligation to afford procedural fairness, the Secretary submitted that it did not follow from the fact that Animals Australia had standing to challenge the second decision that there was a duty to afford Animals Australia procedural fairness in the making of that decision. Reference was made to Botany Bay City Council at 568 and Griffith University v Tang [2005] HCA 7; 221 CLR 99 at 118. The Secretary submitted that Animals Australia had to identify that it had the kind of interest that attracted procedural fairness, and had not done so. The Secretary submitted that: (1) there was no principle to the effect that “a person who successfully agitates the introduction of a law” acquires a right to be heard on the implementation of that law; (2) the extent to which a Minister and/or the Department treats Animals Australia as a key stakeholder to be consulted on matters of policy could not control the meaning of the relevant statute; (3) a right to be heard cannot be created simply by wanting to be heard and being heard; and (4) if the approach favoured by Animals Australia were correct, “it perversely gives officials and decision-makers an incentive not to engage in consultations and not to receive submissions … [b]ecause if you do it once, there’s a risk that you’re then under an obligation to do it again”.

54    With reference to the facts and circumstances of the decision-making, the Secretary emphasised that this was not a case in which Animals Australia had been invited to participate in the decision-making process even as regards the first decision. The Secretary denied that there had been a course of dealing between Animals Australia and the Department that created a relationship between them sufficient to found an interest attracting procedural fairness. The Secretary emphasised that, in the published reasons for the first decision, the decision-maker had given weight to Animals Australia’s submissions as giving voice to “the concerns of segments of the community”, although not the community as a whole. The Secretary further submitted that these reasons did not refer directly to, and rely on, any technical or factual material supplied by Animals Australia. The Secretary submitted that the published reasons for the first decision should not have given Animals Australia any reason to think that its submissions were central “to the extent that it would be invited into the fold in making a subsequent decision, even if the subsequent decision was on very similar circumstances”.

55    The Secretary went on to note that, as regards the second decision, the decision-maker had identified that RETWA’s second application was “substantially different in terms of degree of specificity, number and type of livestock, and the mitigation measures proposed”, and had attached his own conditions to the second decision. The Secretary noted, moreover, that the issue of specificity referred to removing some of the higher risk livestock from the consignment, and an updated management plan. The Secretary also submitted that the published reasons for the second decision made minimal direct reference to Animals Australia and, in any case, depended on a distinct decision-making process. The Secretary contended that there were no indications in those reasons that the second decision was particularly reliant on technical or expert material that had been previously provided by Animals Australia, and it might be inferred that the Department had its own sources of information about technical matters, including meteorology. In the Secretary’s submission, in the making of the second decision, the decision-maker treated Animals Australia as one of a number of bodies advancing views held by a section of the public.

56    The Secretary submitted that the reasoning in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 spoke in terms of statutory regimes for providing rights, privileges and benefits. The Secretary contended that while this language encompassed the position of RETWA, it did not assist Animals Australia. Animals Australia’s interests were, so the Secretary said, the interests of an activist organisation, which were different in kind from a proprietary interest, the interest of a licence holder, or the interest of a visa applicant. As counsel for the Secretary put it, “one needs to come in the end to see how it is said the decision was one that was capable of defeating or compromising and qualifying the interests of Animals Australia”. It was also submitted that there were difficulties of indeterminacy and floodgates flowing from the argument advanced by Animals Australia.

57    The Secretary contended that an administrative decision needed to affect an interest of a relevant kind in order to attract an obligation of procedural fairness for the benefit of the person who holds the interest, referring to Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; 178 LGERA 347 at [162], Wilderness Society Inc v Turnbull [2007] FCAFC 175; 166 FCR 154 at [88], Ferguson v Cole [2002] FCA 1411; 121 FCR 402 at [57]-[58], Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637, and Degning v Minister for Home Affairs [2018] FCA 1152 at [91]-[100] (a decision overruled on appeal: [2019] FCAFC 67; 270 FCR 451). The second decision was, so the Secretary contended, not in itself a permission or approval to take action. Rather, it removed a barrier to action. The Secretary submitted that, although the second decision could in a loose sense be said to be contrary to the interests of Animals Australia in the sense that the organisation had a strong policy position about those matters that it had put to government, with a measure of success, the decision itself did not operate on, or deal with, any interest of Animals Australia in the requisite sense. Rather, the second decision operated entirely on the rights and interests of RETWA.

58    As to whether it might be said that Animals Australia had a relevant interest by reason of a representation by the Department giving rise to an expectation of procedural fairness, the Secretary submitted that the possibility that the departure from such a representation might render the process unfair, as contemplated in WZARH and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1, was predicated on there being an existing obligation to that complainant to provide a process that was fair. WZARH and Lam foreclosed the proposition that a right to be heard could arise simply because Animals Australia held a legitimate expectation that it would be heard. The Secretary accepted that, in so far as procedural fairness was designed to avoid “practical injustice”, in the sense described in Lam and subsequent cases, the kind of doctrine considered in FAI Insurance v Winneke [1982] HCA 26; 151 CLR 342, whether termed a matter of legitimate expectation or something else, might have a role to play where the category of interests was a relatively narrow one, but that if this category was expanded, then the usefulness of such a doctrine was limited.

59    The Secretary submitted that the argument advanced by Animals Australia concerning the consent orders in the applicant’s 2018 matter depended on the applicant’s main contention that Animals Australia had an interest of a kind that attracted an obligation to afford procedural fairness to it in the making of the second decision. As its main contention must be rejected, then so too must the argument about the applicant’s 2018 matter.

RETWA’s submissions

60    RETWA adopted the Secretary’s submissions, subject to making some further submissions of its own. RETWA accepted that:

Animals Australia is a special interest group. It may be accepted that it has a deep interest in animal welfare, but that does not mean it had to be accorded procedural fairness in this case.

61    RETWA’s central contention was that Animals Australia had no interest or right necessary to attract an entitlement to procedural fairness. RETWA submitted that it was no longer correct to assert that if a person has a legitimate expectation of a hearing then that person is entitled to a hearing. Referring to WZARH at [30] and [61], counsel for RETWA submitted that the inquiry in the present context was whether Animals Australia was affected by the second decision in the requisite sense and that the concept of practical injustice had no part to play in this inquiry. Further, so RETWA submitted, it could not be right to say that Animals Australia obtained a relevant right or interest because it was able to make submissions relating to its first exemption application, as this would enable a person to self-qualify for later consultation. Further, RETWA submitted that, assuming Animals Australia has relevant expertise:

Animals Australia was involved in the development of government policy. That did not give Animals Australia a right to be involved in decision-making based on an order created on account of that policy. So the recognition by the Commonwealth, let it be assumed, of Animals Australia’s expertise in [a] policy setting does not mean it has a right to be heard when exemptions are sought under the … law. The fact Animals Australia may have had some involvement in the making of the Northern Summer Order does not translate into a right to be heard as to the application of the Order.

RETWA made the same point about Animals Australia’s involvement in LEAWAG.

62    In relation to the facts and circumstances of the case, RETWA made the following submissions:

(a)    Animals Australia was not given notice of RETWA’s application for exemption from the s 8 prohibition in the Northern Summer Order “as if it was relevantly an interested party”;

(b)    Animals Australia’s submission (said by it to be directed to the “known risks, agreed findings and available science regarding the very real risk of heat stress during shipments to the Middle East from June onwards”) was a submission “about the heartland of the [Northern Summer Order]” and not about “something technical where technical information is used in decision making”;

(c)    Animals Australia’s submissions were received by the Department, and it was informed (by reply email (see [20] above) that these submissions would be taken into account “as they are considered to be relevant to the decision”. This did not create “a right to a seat at the table”;

(d)    Animals Australia’s concerns about animal welfare and weather conditions could not have changed between the making of the first decision and the making of the second decision, “given the temporally connected nature of the two applications”;

(e)    Dr McBride’s report, which Animals Australia provided to the Department, was based on information from June 2018, with the author stating that it applied equally well to the current situation in June 2020;

(f)    RETWA’s second exemption application was materially different from its first application, as described by the published reasons for the second decision, and that is why the decision was different;

(g)    The “very concern of the Northern Summer Order about animal welfare and the risk of stress caused by high temperature was … considered by the Department” when it made the second decision, acknowledging an exemption would be granted only in exceptional circumstances, and it was for the Department to consider the detail of a particular case based on the relevant application and the facts as set out.

63    RETWA submitted that the matters of detail on which Animals Australia might have sought to make submissions did not give rise to an interest on its part that entitled it to be heard. Counsel for RETWA added:

[W]hen the connection and the difference between the two applications are understood, and the nature of Animals Australia’s involvement as regards to the first application is understood, it cannot be said that an interest or right arose on Animals Australia’s part to make submissions just because it made submissions with respect to the first application. The second application was different in seeking to reduce high stress risks.

64    Further, RETWA referred to Dr McBride’s reports of 31 May 2018 and 1 June 2020, to show that he drew on information gathered for his May 2018 report for his assessment of the situation in June 2020. In particular, RETWA relied on Dr McBride’s statement that “all the probabilities given for June 2018 apply equally well to the situation right now”, that is, June 2020. RETWA submitted, and I accept, that there was no error in the title to the table headed “A Persian Gulf destination, Voyage departing in June 2018”, as Animals Australia had earlier suggested. Counsel for RETWA submitted that:

[A]s soon as one … sees that this is expert information about weather in June 2020, the idea that there is slightly daily differences on which expert views might need to be obtained day-by-day, in our submission, is a misunderstanding of the evidence. … Dr McBride was not providing a specific opinion about the dates proposed as to the first application.

65    Counsel for RETWA also referred to the statement in the ES for the Northern Summer Order that:

Decisions made under subsection 12(1) are not suitable for merits review as, due to the particular circumstances in which such decisions are made, there would be no appropriate remedy that could be conferred by the decision-maker. As it is anticipated that decisions made under subsection 12(1) will be made with reference to a specific consignment of sheep and that that consignment will be exported in a relatively short period of time, it is expected that the decision would only operate for such a short period of time that its effect would be spent by the time of the completion of the review.

He submitted that in a context such as that outlined in the above passage, an interest of the kind for which Animals Australia contended would not exist, “by force of Parliamentary intent”. He also contended that, in substance, the Northern Summer Order already took account of the views of those concerned about animal welfare, such as Animals Australia, and that, for this reason, it was unlikely that it was intended that a decision-maker should be obliged to accord them procedural fairness in making an exemption decision under s 12.

Consideration: Grounds 1 and 2

66    The question whether Animals Australia was entitled to procedural fairness (or natural justice as it is termed in s 5(1)(a) of the Judicial Review Act) in connection with the making of the second decision must be answered according to the common law principles laid down in the authorities.

67    There are two points I would make at the outset. The first is that, in this case, the acknowledged relationship between issues of standing and of entitlement to procedural fairness is apt to mislead. This is because there is no dispute in this case that the decision-maker had an obligation to afford procedural fairness to RETWA before making the second decision. The decision undoubtedly affected RETWA’s individual interest because the decision removed RETWA from the ambit of the prohibition in s 8 of the Northern Summer Order (for a limited time and subject to stated conditions). It may be recalled that this prohibition prevented holders of sheep export licences such as RETWA from exporting sheep from Australia to the Middle East during the prohibition period (i.e., the Northern Hemisphere summer). The prohibition stopped all sheep export licence holders from exporting sheep in the prohibition period unless, on the application of a sheep export licence holder under s 11, the Secretary decided to grant that licence holder an exemption under s 12 of the Northern Summer Order.

68     It may be accepted that where a decision affects an individual interest, as the second decision affected the individual interest of RETWA, a conclusion on standing “will dictate” a conclusion on the right to be heard: see the passage in Botany Bay City Council at 568 (Lehane J), quoted with approval by Gummow, Callinan and Heydon JJ in Griffith University v Tang at 118. In the same passage, however, Lehane J said:

It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making …

69    Like Botany Bay City Council, this case falls within the description of a public interest case as “described loosely”, and a conclusion that Animals Australia has standing to challenge the second decision does not entail a conclusion that it had a right to be heard in connection with the making of the second decision.

70    The second point is that the concept of legitimate expectation in administrative law was found to be unsatisfactory in such cases as Lam and Plaintiff S10/2011: see, for example, Lam at [111], [121] (Hayne J); Plaintiff S10/2011 at [65] (Gummow, Hayne, Crennan and Bell JJ). Even before WZARH, discussed below, there was good reason to conclude that the doctrine of legitimate expectation would not engage the principles of procedural fairness where the relevant statutory decision-making processes were not directed to “individuals (or distinct bodies of persons) as such”: see Geelong Community for Good Life at 345 (Cavanough J).

71    The concept of legitimate expectation has now been clearly rejected by the High Court as a touchstone for the engagement of an obligation to accord procedural fairness: see WZARH at [30] (Kiefel, Bell and Keane JJ). Whether an administrative decision-maker is under an obligation to accord procedural fairness to a person must be determined without regard to the concept of legitimate expectation. This means that some previous formulations about when the obligation will arise must be put aside, including the statement of Mason CJ, Deane and McHugh JJ in Annetts v McCann at 598 as to when the rules of natural justice will be attracted to the extent that the statement indicates that a person’s “legitimate expectations” may attract the rules of natural justice and give rise to an obligation to accord procedural fairness.

72    Whether Animals Australia was entitled to procedural fairness in connection with the making of the second decision turns in this case on the correct test for determining the existence of the obligation. In WZARH at [30], Kiefel, Bell and Keane JJ stated that:

It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.

Compare Annetts v McCann at 598.

73    In the present case, Animals Australia’s case was that it was “affected” by the second decision in a relevant way. For the following reasons, I am unable to accept this proposition, because Animals Australia did not qualify as a person relevantly affected by the exercise of power in s 12 of the Northern Summer Order.

74    In Plaintiff S10/2011, Gummow, Hayne, Crennan and Bell JJ also considered the circumstances that engaged an obligation to afford procedural fairness. Their Honours said (at [66]):

[T]he issue … is to be considered by asking whether the failure by the Minister to consider the exercise and thus to exercise the dispensing powers in question is apt to affect adversely what is the sufficient interest of a party seeking the exercise of those powers in favour of that party. In Kioa v West [(1985) 159 CLR 550 at 619] Brennan J observed and, with respect, we agree:

“The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.”

Earlier in those reasons, Brennan J had said:

“There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests – licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials – intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.”

(Citations omitted.)

75    For the reasons set out above, an exercise of power under s 12 of the Northern Summer Order has the potential directly to affect the legal rights of the applicant for the exemption, here RETWA, who is entitled to procedural fairness in connection with the making of such a decision.

76    The making of a decision under s 12 of the Northern Summer Order cannot affect the legal rights of Animals Australia, or its proprietary, financial or reputational interests. Nor is it said that the making of a decision under s 12 affects any other interest of Animals Australia arising under the Northern Summer Order, a relevant statute or some other legislative instrument of a kind to which Brennan J referred in Kioa v West at 616-617, in the passage set out above and approved by Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011.

77    It may be accepted that Animals Australia has a genuine concern for animal welfare and commitment to protect animal welfare, particularly with respect to the live export of animals from Australia for commercial purposes. It may also be accepted that Animals Australia has a wealth of relevant knowledge and expertise available to it directly or indirectly. It may be accepted that for these and other reasons, Animals Australia has been consulted by the Department on issues relevant to animal welfare in the live export industry, including with respect to heat stress on live animals shipped from Australia, and with respect to other matters relating to animal welfare. It may also be accepted that Animals Australia’s contribution was significant in the introduction of the Northern Summer Order, and that the Department has recognised it as a key stakeholder in the field through its membership of LEAWAG. In this context, it may be accepted that, as the Secretary said at the hearing, the making of the second decision was, loosely speaking, contrary to its interests in the sense that Animals Australia has a strong policy position with respect to live animal exports, especially in the Northern Hemisphere summer. WZARH, Plaintiff S10/2011 and Kioa v West together show, however, that this was not a sufficient interest to attract an obligation to afford procedural fairness to Animals Australia in connection with the making of the second decision. This conclusion is fortified by Rivers SOS at [162] (Preston CJ), Wilderness Society at [88] (Branson and Finn JJ), Ferguson v Cole at [57]-[58] (Branson J) and Blewett at 637 (Gummow J).

78    Since Animals Australia has failed to establish that, in connection with the making of the first decision, it had an interest of such a kind that would attract the obligation to afford it procedural fairness, its argument with respect to the applicant’s 2018 matter falls away.

79    Ground 1 of the application for judicial review cannot therefore succeed.

80    For much the same reasons, ground 2 must fail. Only if an obligation to accord procedural fairness is established, may the inquiry as to the content of that obligation broaden out to take account of whether the administrative process has been such as to “generate expectations on the part of the person affected as to how he or she should present his or her case; [and] in some cases, fairness may require that such expectations be honoured”: see WZARH at [35] (Kiefel, Bell and Keane JJ); see also [60]-[61] (Gageler and Gordon JJ).

81    The course of dealings between Animals Australia and the Department could not of itself give rise to an interest sufficient to attract an obligation to afford Animals Australia a right to be heard in connection with the making of the second decision. Even if it were the case that by reason of this course of dealings in connection with the making of the first decision, the Department can be taken to have represented to Animals Australia that it would be given some opportunity to be heard with respect to the making of a decision on any subsequent application that RETWA might make consequent upon the first decision, such a representation could be relevant only if there was a pre-existing obligation to afford Animals Australia procedural fairness (in the form of some opportunity to be heard) in connection with the making of the second decision. Since there was no such obligation, neither the course of dealings between Animals Australia and the Department nor any representation that might be taken to have arisen from these dealings was relevant to the relief Animals Australia sought.

Ground 3 — Legal unreasonableness

Animals Australia’s submissions

82    Animals Australia contended that the second decision was affected by legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. In this context, the applicant noted that the representations it had made in connection with the making of the first decision were considered in the making of the second decision, notwithstanding that RETWA’s second exemption application was said by the second decision-maker to be substantially different from its first exemption application, such that, so Animals Australia said “different submissions would have been made” if it had been given the opportunity. Animals Australia submitted that:

Despite this, despite that there was ample time to seek further submissions from Animals Australia, despite that there was at least a very good chance that Animals Australia’s submissions in answer to such invitation would warrant consideration and weight to be given to them, and despite that the second application was in practical terms a continuation of a decision-making continuum in which Animals Australia had already had involvement, the decision-maker chose not to seek any such further submissions. This was legally unreasonable.

83    Animals Australia submitted that, with respect to the second decision, the decision-maker made a choice not to seek any further submissions from it, in circumstances where the first-decision-maker had given weight to its submissions in making the first decision and where the second decision-maker had at least constructive knowledge that Animals Australia might well be able to make further submissions relevant to the second decision, with the result that the second decision-making process was unreasonable or irrational. In support of this submission, Animals Australia also relied on the evidence of its CEO that had it been given the opportunity to do so prior to the second decision, it would have provided the Department with updated meteorological reports focused on the relevant voyage path with a focus on mid-to-late June 2020 forecasts; specific submissions in relation to the duration of certain temperatures across the relevant Persian Gulf Passage including an updated report from Dr McBride; veterinary and scientific submissions regarding animal welfare implications of the voyage in mid-June 2020; and submissions concerning the amended vessel arrangements, stocking densities and sheep types.

The Secretary’s submissions

84    The Secretary submitted that the matters outlined at [54]-[55] above were also relevant to ground 3. Counsel for the Secretary submitted that:

[O]ne should not think that Animals Australia’s submissions in the earlier case were given a central role in the later case. Or that Animals Australia was relied on in the second case for specific technical or factual material that would benefit from updating. There’s certainly no reference to any such technical or factual material. And if what’s being taken into account is simply that Animals Australia and other bodies are there expressing a view then that, with respect, doesn’t require any updating.

85    The first respondent further submitted that the ground, as expressed, was a variation on a duty to inquire, premised on the proposition that it was unreasonable for the decision-maker not to seek input from Animals Australia. Referring to Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25], the Secretary contended that, generally speaking, a duty to inquire was contemplated only if the enquiry was on a fairly specific matter and there was a clear gap in the material. The Secretary submitted that, although Animals Australia did not rely on that jurisprudence, in developing concepts of unreasonableness, the Court should not render redundant or obsolete boundaries of existing doctrine. Further, he noted that there was no suggestion that the Department was unable to have access to its own information, including on ship design or meteorology. Counsel for the Secretary submitted that:

Animals Australia would no doubt have provided a different perspective on those issues if it had been asked, and that might be thought to have been desirable, but that’s a long way from unreasonable … and certainly, a long way from any failure to enquire, as is normally understood. It shouldn’t be characterised as unreasonable simply because it would’ve been better if things had been done differently.

RETWA’s submissions

86    With respect to ground 3, RETWA contended in substance that, even if it were accepted that some weight had been given to the submissions of Animals Australia in relation to the first decision, it was not irrational or unreasonable, in the sense described in Li, for the Department not to obtain further submissions from the applicant. Rather, the second respondent submitted that the Department made a judgment on the merits that was available to it.

Consideration: Ground 3

87    As already stated, Animals Australia argued that the second decision was unreasonable in the sense that it lacked “an evident and intelligible justification”: see Li at [76]. In support of this argument, it relied on the facts and matters falling for consideration in the exercise of the decision-making power conferred by s 12 of the Northern Summer Order. The gist of its argument was that it should be inferred from the consideration and weight given to Animals Australia’s submissions in the making of the first decision that the failure to give Animals Australia an opportunity to update its submissions in making the second decision rendered the second decision unreasonable.

88    The published reasons for the first decision show that the decision-maker had regard to the submissions made by Animals Australia in connection with the making of that decision. Without repeating [24]-[25] above, the published reasons show that the first decision-maker considered submissions received from numerous sources including Animals Australia. These reasons do not indicate, however, that in reaching the first decision the decision-maker relied on any factual or technical information provided by Animals Australia, or that the decision-maker gave Animals Australia’s submissions particular weight. Rather, the first decision-maker said that she gave “some weight to the submissions received from Animals Australia, RSPCA Australia, the AVA and Professor Phillips insofar as they gave voice to the concerns of segments of the community, but … found that they were not representative of the community as a whole”, noting that “the submissions were prepared by persons and entities with known policy positions and that others in the community may well have different views”.

89    There is nothing in the reasons for the first decision to indicate that the decision-maker in that instance attached such weight to Animals Australia’s submissions or that they were of such a nature that any subsequent decision with respect to a different though related application would have lacked an evident and intelligible justification in the Li sense unless Animals Australia were permitted to update its submissions before a decision was made on that application.

90    Without repeating [27]-[38] above, as already noted, the published reasons for the second decision show that the second decision-maker regarded RETWA’s second exemption application as significantly different from its first, “in the degree of specificity, the number and type of live-stock to be exported, and the mitigation measures proposed”. Besides the material provided by RETWA and others, including “further meteorological data and expert opinion, logger data analysis and an Updated Management Plan”, these reasons show that the second decision-maker specifically considered additional meteorological information as well as the submissions previously received by the Department, including from Animals Australia. On this occasion, as before, the decision-maker gave “some weight to the submissions received from Animals Australia, RSPCA Australia, the AVA and Professor Phillips, “insofar as they gave voice to the concerns of segments of the community, but … found that they were not representative of the community as a whole”. Subsequently, under the heading “Conclusion”, the decision-maker re-iterated that he “had regard to the submissions received from third parties in respect of RETWA’s first exemption application, including from Animals Australia, RSPCA Australia, the AVA and Professor Phillips”.

91    There is nothing in the reasons for the second decision to indicate that the decision-maker had regard to factual or technical information supplied by Animals Australia that called for Animals Australia to be given an opportunity to update it. It may be accepted that the published reasons indicate that meteorological issues were among the most important issues in the making of the second decision. It may also be accepted that the second decision-maker had regard to Dr McBride’s report of 1 June 2020, which had been provided by Animals Australia in connection with the making of the first decision. The consideration given this report, without providing an opportunity to update it, did not, however, make the second decision unreasonable. First, Dr McBride’s June 2020 report was based, at least in part, on recorded temperatures for June 2018, which, so Dr McBride stated, applied equally well to the position in June 2020. Secondly, in connection with the second decision, the published reasons show that the decision-maker had access to, and relied on, other meteorological information including not only a 2019 BOM report but also two BOM forecasts for the Persian Gulf for June 2020, one of which was an updated BOM forecast dated 10 June 2020. The decision-maker also had before him a report by Dr Buckley, which had been provided by RETWA. It is worth noting in this connection that the second decision-maker concluded that “[o]verall” the opinions of the BOM and Dr Buckley were “broadly consistent”; and this decision-maker apparently proceeded very largely on the basis of the information provided by the BOM.

92    It may be accepted that had Animals Australia been given an opportunity to do so, it would have submitted updated meteorological information relevant to the proposed voyage with reference to the forecast for mid-late June 2020, together with other information concerning the animal welfare implications of the voyage at that time. As it happened, however, the decision-maker had access to information on these matters from other sources, including the BOM. Considered as a whole, it cannot be said that the second decision lacked an evident and intelligible justification and was therefore unreasonable in the Li sense. Accordingly, ground 3 failed.

93    There is some force in the Secretary’s submission that although Animals Australia did not expressly frame its case at this point in terms of a failure to make an obvious enquiry about a critical and easily ascertainable fact as discussed in such cases as Le and SZIAI, nonetheless its argument tended to enter into that territory. It is, however, unnecessary to consider this further.

Costs

94    At the time I made the orders of 16 June 2020, I indicated that I would make orders with respect to costs when I delivered these reasons.

95    Having regard to the foregoing, I would order that unless a party notifies the Court in writing by 4.00pm on 6 July 2020 indicating opposition to this order as to costs, the applicant pay the respondents’ costs of the application, as agreed or assessed.

Associate:

Dated:    26 June 2020