2006 AAT Stay hearing

Introduction

In early 2006 the NKPC appealed the Permit issued by the Federal Government for the export of products derived from the commercial culling of Bennett’s Wallabies and Tasmanian Pademelon on the two islands. As part of our Appeal submission, we asked for a stay of the kill until the Appeal was finally decided.

We lost this Appeal for a stay, largely because the Tasmanian Government argued that many more wallabies were currently being shot as pests, than the quota that would be shot under a commercial permit. They failed to provide any evidence of this however.

We knew that if a Stay was not granted, the Industry would just go open slather on the wallabies to build up skin stocks, to export to Italy to manufacture fur coats. The AAT made it very clear to the Industry that anyone who went ahead with infrastructure their costs would be on their own head if our Appeal succeeded.

The final Appeal was held over 5 days in the Brisbane AAT during August 2006, and the final decision has yet to be handed down.(19 October 2006) When the Findings are handed down they will appear under this Report. *WPAA

Administrative Appeals Tribunal

Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29 (16 January 2006) Last Updated: 17 January 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2005/800 GENERAL ADMINISTRATIVE DIVISION )

Re WILDLIFE PROTECTION ASSOCIATION OF AUSTRALIA INC.

Applicant

And MINISTER FOR THE ENVIRONMENT AND HERITAGE

Respondent

And AUSTRALIAN WILDLIFE PROTECTION COUNCIL INC.

Joined Party

And ANIMALS AUSTRALIA

Joined Party

DECISION

Tribunal Deputy President P E Hack SC

Date 16 January 2006 Place Brisbane Decision The application for a stay of the implementation of the decision under review is refused.

...............Signed............................... Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for stay – secure effectiveness of hearing and determination of application for review – interests of persons who may be affected by the review – wildlife trade management plan

Administrative Appeals Tribunal Act 1975: s 41(2)

Re Repatriation Commission and Delkou (1985) 8 ALD 454

Polini v Gray (1879) 12 Ch D 438

J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1983] 2 Qd R 243

Re Australian National Railways Commission and Moyle (1988) 15 ALD 571

VBJ and Australian Prudential Regulation Authority [2005] AATA 642

REASONS FOR INTERLOCUTORY DECISION

16 January 2006 Deputy President P E Hack SC

1. On 30 November 2005 the respondent, the Minister for the Environment and Heritage, made a declaration, pursuant to s 303F0(2) of the (the Act), that the,

‘Wildlife Trade Management Plan for the Commercial Harvest of Bennett’s Wallabies and Tasmanian Pademelons on Flinders Island, Tasmania 2005 to 2010’ (the Flinders Island Plan), and the ‘Wildlife Trade Management Plan for the Commercial Harvest of Bennett’s Wallabies on King Island, Tasmania 2005 to 2010’ (the King Island Plan),

were each approved wildlife trade management plans for the purposes of s 303FO of the Act. The declaration was made subject to a presently irrelevant condition.

2. It will suffice for present purposes to note that the effect of approval of the Flinders Island Plan and the King Island Plan may, if other statutory steps are satisfied, permit the export of products derived from the commercial culling of Bennett’s Wallabies and Tasmanian Pademelon on the two islands. The plans set commercial harvest quotas for the 2005/2006 year and provide a mechanism for the annual setting of quotas thereafter. 3. The applicant, the Wildlife Protection Association of Australia Inc., filed an application in the Tribunal on 12 December 2005 seeking a review of the respondent’s decision. Jurisdiction is conferred on the Tribunal by s 303GJ(1)(h) of the Act. The respondent accepts, for the purposes of this application, that the applicant has standing as a person affected by the decision within the meaning of s 27 of the Administrative Appeals Tribunal Act 1975. 4. The applicant’s stated reasons are as follows,

"There are serious animal welfare and sustainability issues that have not been addressed. We believe the management plans have breached the [Environment Protection and Biodiversity Conservation] Act and the Minister should not have approved them."

5. The applicant also applied for a stay of the implementation of the respondent’s decision. The grounds of the stay application were expressed in this way,

"This is a new program. No infrastructure is in place, no jobs will be lost. There are serious animal welfare and sustainability issues to be addressed. Starting the program then having to close it later will create enormous difficulties and increased costs for all parties."

6. The power to grant a stay of the implementation of a decision is conferred by s 41(2) of the Administrative Appeals Tribunal Act 1975 in these terms,

"The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."

7. Here it is accepted that a request has been made in the prescribed manner. The question is whether it is desirable to grant a stay in the present circumstances, having regard to the terms of the section. Despite the helpful arguments of Mr O’Brien, who appeared as advocate for the applicant, in my view it is not desirable, either generally, or on the basis propounded by the applicant. 8. As it seems to me s 41(2) directs attention principally upon two aspects,

• The need to secure the effectiveness of the hearing and determination of the underlying application, • The need to take into account the interests of any persons who may be affected by the review. 9. As to the first of these the jurisprudence in this Tribunal, as in other jurisdictions, focuses upon the question of whether a review (or appeal) will be rendered nugatory if a stay is not granted: see eg Re Repatriation Commission and Delkou (1985) 8 ALD 454 at 457 where Deputy President Hall applied Polini v Gray (1879) 12 Ch D 438 and J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1983] 2 Qd R 243; Re Australian National Railways Commission and Moyle (1988) 15 ALD 571. Allied to this question is the issue of prospects of success of the application for review: see eg VBJ and Australian Prudential Regulation Authority [2005] AATA 642 at [47]. 10. Mr O’Brien submitted that without a stay the applicant’s case on review would be more difficult. His contention was, in effect, that without a stay the third parties who benefit from the plans will entrench their positions. I am unable to accept that argument. If at the hearing the Tribunal were to be persuaded that the Minister’s decision was not the correct or preferable one the fact that commercial activities had been undertaken in reliance upon the plans would not deter the Tribunal from setting aside the decision if that were the conclusion dictated by the view that the Tribunal took of the matter. Additionally, as it seems to me, third parties who rely upon the plan pending the hearing and determination of the review do so at their own risk. 11. The applicant’s argument also relies upon the fact that pending the hearing and determination of the review Bennett’s Wallabies and Tasmanian Pademelons will be culled. But the evidence suggests that animals will be culled, and likely in similar numbers, even were a stay to be granted. In a practical sense the effect of the declaration does not authorise new culling, rather it is the first step in a process that permits the export of products derived from the animals. As Mr Rangiah, counsel for the Minister, points out, the respondent’s decision does not create a situation where the animals are being culled or harvested for the first time; absent the decision animals can be lawfully culled under State legislation. 12. Moreover there is a significant body of evidence that supports the proposition that damage will be done to persons whose interests may be affected by the review if the stay were to be granted. The affidavit of the solicitor for the respondent details conversations between that solicitor and an official of the Department of Primary Industries, Water and Environment, Tasmania in which that official expressed the view that the grant of a stay would be likely to lead to an increase in the non-commercial culling of animals under damage mitigation permits for crop protection purposes. That, the official considers, will lead to increased costs to farmers. 13. There is other evidence, albeit that some of it is by way of second-hand hearsay, that a stay would cause irreparable damage to potential exporters of animal products and a delay in the development of export markets. 14. I should add that the present is not a case where I am able to reach any view about the applicant’s prospects of success. In some cases it is, no doubt, possible to conclude either that a case is bound to succeed or is bound to fail. In the present case I can say no more than that I do not regard the applicant’s case (on what I know of it so far) as bound to succeed or bound to fail. 15. In the circumstances I am not persuaded that the grant of a stay is necessary or appropriate to secure the effectiveness of the hearing and determination of the application for review. It follows that in my view the application for a stay should be refused. 16. I propose however to do what the Tribunal can do to ensure that the application is given a speedy hearing and determination. In that regard the parties have agreed to the directions that I will make. Compliance with those directions will be closely monitored. In addition, and against the possibility that the persons referred to in paragraphs 12 and 13 above may wish to become parties to the proceedings, I will direct that the solicitors for the respondent forthwith give notice to the persons referred to in paragraphs 5, 6, 8, 9 and 10 of the affidavit of F.H. Potter sworn 21 December 2005 of the fact and nature of the application and that any person whose interests are affected by the decision under review may apply to the Tribunal in accordance with s 30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the proceedings. 17. I should add that after the conclusion of the hearing Mr O’Brien forwarded to my chambers further submissions. I do not propose to have regard to those submissions as they do not address either of the two issues that I have identified above. Moreover they make allegations of illegal conduct on the part of a person who has no opportunity to answer the allegations. 18. For my part I would discourage the practice of forwarding submissions after the conclusion of a hearing unless the agreement of the other party has first been obtained.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ..................................................................................... Associate: Robert Hayes

Date of Hearing 13 January 2006 Date of Decision 16 January 2006 For the Applicant Mr P O’Brien Counsel for the Respondent Mr D Rangiah Solicitor for the Respondent Australian Government Solicitor