Flying foxes, dams and whales: Using federal environmental laws in the public interest

Environmental and Planning Law Journal

Volumn 25, Issue 5, 2008, Pages 329-359

  McGrath, Chris ^a  

^a GRIFFITH UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

CETACEA; PTEROPODIDAE;

EID: 70350378421     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (194)

1. Preston BJ, "The Role of Public Interest Environmental Litigation" (2006) 23 EPLJ 337.
2. Boer B, "Legal Aid in Environmental Disputes" (1986) 3 EPLJ 22 at 23.
3. Robson C, Real World Research (2nd ed, Blackwell Publishers, 2002).
4. For example, in Schneiders v Queensland [2001] FCA 553, a conservationist was able to challenge culling of dingoes by the State of Queensland in the Fraser Island National Park and World Heritage Area.
5. McGrath C, "The Fraser Island Dingo Case" (2001) 18(3) EPLJ 269.
6. See the debate over the concept in Oshlack v Richmond River Council (1998) 193 CLR 72; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229.
7. As pointed out in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 777; London Artists Ltd v Littler [1968] WLR 607 at 619; Hollier v AMSA (No 2) [1998] FCA 975.
8. See Right to Life Assn (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 at 59 per Lockhart J.
9. Martin P, "Defining and Refining the Concept of Practising in 'the Public Interest'" (2003) 28(1) Alt LJ 3 at 3.
10. Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J.
11. Australian Law Reform Commission, Costs Shifting - Who Pays for Litigation, Report No 75 (1995) at [13.2].
12. For example. Engadine Area Traffic Action Group Inc v Sutherland SC (No 2) [2004] NSWLEC 434 at [15] per Lloyd J.
13. Australian Law Reform Commission, n 10 at [13.2]-[13.14]. See also the definition of "public law proceedings" in the draft Standing (Federal and Territory Jurisdiction) Bill 1985 (Cth) provided in Australian Law Reform Commission, Report No 78 (1996).
14. Campbell E, "Public Interest Costs Orders" (1998) 20 Adel LR 245 at 255, 257.
15. Barker M, "Standing to Sue in Public Interest Environmental Litigation: From ACF v Commonwealth to Tasmanian Conservation Trust v Minister for Resources" (1996) 13 EPLJ 186 at 186.
16. While private interests may also be involved (for instance, where the litigant is a neighbour opposed to a proposed development), there is no question that the protection of the environment is a matter of public interest: see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 477-482 per Barwick CJ and 486-487 per Jacobs J; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 149 at 155 per Mason ACJ.
17. The "environment" is used here in its widest sense and includes biodiversity, water quality, air quality, noise, amenity, aesthetics and cultural heritage.
18. Jacobs J in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 486-487.
19. Wilcox M, "The Role of Environmental Groups in Litigation" (1985) 10 Adelaide Law Review 41.
20. A model environmental litigant is prudent, rational, reasonable, and willing to listen to professional legal advice. Irrational and unreasonable litigants have great difficulty gaining public and professional support for their case.
21. Merkel R, Public Interest Advocacy (Seminar hosted by the International Commission of Jurists (Qld) Inc, Brisbane, 13 November 2006).
22. Preston BJ, Environmental Litigation (Lawbook Co, 1989)
23. Bates G, Environmental Law in Australia (6th ed, Butterworths, 2006), Chs 7 and 8.
24. Consider, for example, the number of cases and the parties involved in litigation in the Queensland Planning and Environment Court at http://www.sclqld.org.au/qjudgment viewed 1 August 2008, and the New South Wales Land and Environment Court at http://www.lawlink.nsw.gov.au/lawlink/caselaw/ll_caselaw.nsf/pages/cl_lec viewed 1 August 2008. Victoria, South Australia, the Australian Capital Territory, and Northern Territory have similar low levels, while in Western Australia lack of standing continues to make public interest environmental litigation extremely rare.
25. Appeals from all of these categories are similar and generally concern errors of principle only.
26. House v The King (1936) 55 CLR 499 at 504-505.
27. See Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985), Ch 7 - Private Prosecutions, at [342]. Section 13 of the Crimes Act 1914 (Cth) provides open standing to prosecute federal criminal offences. Section 9(5) of the Director of Public Prosecutions Act 1983 (Cth) allows the Commonwealth DPP to intervene in a private prosecution. Part 4 of the Prosecution Policy of the Commonwealth sets out the criteria used by the DPP in deciding whether to intervene in, and discontinue, a private prosecution under federal law: see http://www.cdpp.gov.au/Prosecutions/Policy viewed 10 July 2008.
28. Administrative Review Council, What Decisions Should be Subject to Merit Review? (AGPS, Canberra, 1999) at [1.3], http://www.ag.gov.au/agd/www/archome.nsf viewed 25 July 2008.
29. Administrative Review Council, n 25 at [1.4] and [1.5]. See also the discussion of the objectives of merits review in Ch 2 of Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals - Report No 39 (AGPS, Canberra, 1995), http://www.ag.gov.au/agd/www/archome.nsf viewed 25 July 2008.
30. Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004).
31. Stated in the court summary of effect of reasons for judgment in TWS v Turnbull [2007] FCAFC 175.
32. Friends of Hinchinbrook v Minister for the Environment (No 2) (1997) 69 FCR 28; (No 3) (1997) 77 FCR 153; (No 5) (1998) 83 FCR 304; 84 FCR 186.
33. Parliament of the Commonwealth of Australia, The Hinchinbrook Channel Inquiry (AGPS, Canberra, 1999).
34. Bonyhady T, Places Worth Keeping (Allen & Unwin, 1993).
35. Gunningham N and Grabosky P, Smart Regulation: Designing Environmenstal Policy (Oxford University Press, 1998), Chs 3 and 6.
36. Preston, n 1. Australian Law Reform Commission, n 10 at [13.6], suggests a number of general benefits of public interest litigation but note the criticisms of Campbell, n 13 at 257.
37. Australian Law Reform Commission, n 12 at [4.15]. Similarly, see Australian Law Reform Commission, n 24.
38. Department of Environment, Water, Heritage and the Arts, http://www.environment.gov.au/epbc viewed 25 July 2008
39. McGrath C, "Key Concepts of the EPBC Act" (2005) 22 EPLJ 20
40. Godden LC and Peel J, "The Environment Protection and Biodiversity Conservation Act 1999 (Cth): Dark Sides of Virtue" (2007) 31(1) Melb Uni LR 106.
41. Under ss 206A, 221A, 243A, 263A, 303GJ and 473 of the EPBC Act. Following the 2006 amendments appeals to the AAT are only available under ss 206A, 303GJ and 473.
42. Listed in the Appendix.
43. Macintosh A, "Why the Environment Protection and Biodiversity Conservation Act's Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives" (2004) 21 EPLJ 288
44. McGrath C, "Swirls in the Stream of Australian Environmental Law" (2006) 23(3) EPLJ 165.
45. Australian Law Reform Commission, n 24, p 3 at [3]. See generally, Bates, n 21, Ch 6.
46. Australian Law Reform Commission, n 24, p 11 at [20].
47. Others include: denial of legal existence; capacity; non-justiciability; and hypothetical questions. See Australian Law Reform Commission, n 24, p 13 at [23].
48. Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114; Gouriet v Union of Post Office Workers [1978] AC 435 at 481; ACF v Commonwealth (1980) 146 CLR 493 at 526-530; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 608-609. For a review of these matters see Australian Law Reform Commission, n 24.
49. See also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Shop Distributive & Allied Employees Assn v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
50. Australian Law Reform Commission, n 24; Australian Law Reform Commission, n 12 at [4.11].
51. Stone CD, Should Trees Have Standing? Toward Legal Rights for Natural Objects (William Kaufmann Inc, 1972).
52. See also ACF v Minister for Resources (1989) 19 ALD 70 at 73; TCT v Minister for Resources (1995) 55 FCR 516; Shop Distributive & Allied Employees Assn v Minister for Industrial Affairs of South Australia (1995) 183 CLR 552 at 558; Right to Life Assn (NSW) Inc v Secretary, Dept of Human Services & Health (1995) 56 FCR 50 at 64-65; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 261; NQCC v Executive Director, QPWS [2000] QSC 172; Save the Ridge Inc v ACT [2004] ACTSC 13.
53. Joyce MK, "Privative Clauses Under ss 35 & 104A of the Environmental Planning and Assessment Act 1979 (NSW) and the Implications for Public Interest Environmental Litigation" (1998) 15 EPLJ 362 at 362-363 (footnotes omitted). These comments apply equally to public interest litigation under other legislation.
54. National Environmental Law Association, http://www.nela.org.au viewed 25 July 2008.
55. Robinson D, "The Environmental Defender's Office NSW, 1985-1995" (1996) 13 EPLJ 155 at 155-156.
56. Environmental Defenders Offices, http://www.edo.org.au viewed 25 July 2008; Boer, n 2 at 35-37; Robinson, n 50.
57. th ed, Redfern Legal Centre Publishing, 2006).
58. Environmental Law Alliance Worldwide, http://www.elaw.org viewed 25 July 2008
59. Anton D, "The Global Environment and the Public Interest" (1996) 13 EPLJ 269 at 277-281.
60. Cairns B, Australian Civil Procedure (7th ed, Lawbook Co, 2007).
61. Stein P, "The Role of the NSW Land and Environment Court in the Emergence of Public Interest Environmental Law" (1996) 13 EPLJ 179 at 180
62. Edwards K, "Costs and Public Interest Litigation After Oshlack v Richmond River Council" (1999) 21(4) Syd LR 680 at 680
63. Australian Law Reform Commission, n 10 at [3.9].
64. Molesworth S, "Provision of Legal Aid for Environmental Issues: The Squeeze on Environment Defender's Office" (1992) 9 EPLJ 286
65. Mossop D, "The Justice Statement: A Mixed Bag for Environmental Law" (1995) 12 EPLJ 237
66. Comino M, "Improving Access to Justice for the Environment" (1996) 13 EPLJ 225.
67. Boer, n 2 at 28
68. Bragg J, "Community Litigants in the Queensland Planning and Environmental Legal System" (2006/2007) 12(54) QEPR 79.
69. This was established under the Prime Minister's Justice Statement. See Mossop, n 56; Comino, n 56.
70. Another example is Class 1 proceedings in the NSW Land and Environment Court - see Grant v Kiama Municipal Council [2006] NSWLEC 70. The normal rule as to costs applies in Class 4 proceedings but see the cases cited at n 64 in relation to public interest litigation.
71. Footnotes in original omitted. See also Robina Land Corp Pty Ltd v Albert SC [1995] QPLR 209; Wilson v Laidley SC [1994] QPLR 65; Wheldon v Beaudesert SC [1995] QPLR 177; Frazer v Brisbane CC [2000] QPELR 31; Walls Quarries Pty Ltd v Warwick SC [2004] QCA 457; Crowther v Queensland [2005] QPEC 118 at [16].
72. WPSQ Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736.
73. Ruddock K, "The Bowen Basin Coal Mines Case: Climate Law in the Federal Court", Ch 11 in Bonyhady T and Christoff P (eds), Climate Law in Australia (Federation Press, 2007) pp 184-185.
74. Baird R, "Public Interest Groups and Costs - Have the Flood Gates been Opened?" (1998) 15 EPLJ 294.
75. The decision in Oshlack arose from Class 4 proceedings in the NSW Land and Environment Court. That court has subsequently been more willing, though still rarely, to not award costs against unsuccessful public interest litigants in Class 4 proceedings. See Plumb v Penrith CC [2003] NSWLEC 161 at [28]; Engadine Area Traffic Action Group Inc v Sutherland SC (No 2) [2004] NSWLEC 434 at [15]-[21]; Cranky Rock Road Action Group Inc v Cowra SC [2006] NSWLEC 159.
76. See Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; South-West Forest Defence Foundation (No 2) v Department of Conservation & Land Management (No 2) (1998) 72 ALJR 1008; [1998] HCA 35; Scott v Secretary, Department of Social Security [2000] FCA 1450; Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; Mees v Kemp [2004] FCA 549; Save the Ridge Inc v Commonwealth [2005] FCA 157; [2006] FCAFC 51.
77. Save the Ridge Inc v Commonweath [2005] FCA 157; Save the Ridge Inc v Commonwealth [2006] FCAFC 51.
78. TWS v Turnbull [2007] FCA 1863. See also Investors for the Future of Tasmania Inc v Minister for the Environment & Water Resources [2007] FCA 1864.
79. Blue Wedges Inc v Minister for the Environment, Heritage & the Arts [2008] FCA 8 at [73].
80. TWS v Turnbull [2008] FCAFC 19 at [9].
81. TWS v Turnbull [2008] FCAFC 19 at [10].
82. Your Water Your Say Inc v Minister for the Environment, Heritage & the Arts [2008] FCA 900 at [3], [7].
83. Booth v Bosworth [2000] FCA 1878 at [30].
84. Booth v Bosworth [2000] FCA 1878; Schneiders v Queensland [2001] FCA 553; Jones v Queensland [2001] FCA 756; Save the Ridge Inc v National Capital Authority [2004] FCA 996; [2004] FCAFC 209.
85. Save the Ridge Inc v National Capital Authority [2004] FCA 996; [2004] FCAFC 209.
86. Senate Standing Committee on Environment, Communications, Information Technology and the Arts (SSCECITA), Report on the Environment and Heritage Legislation Amendment Bill (No 1) 2006 [Provisions] (Senate Printing Unit, 2006) p 9 at [2.19] - Majority Report.
87. SSCECITA, n 75, pp 30-32, 71-72, 99-100.
88. SSCECITA, n 75, pp 71-72.
89. Section 173E of the Nature Conservation Act 1992 (Qld).
90. Booth v Yardley [2006] QPEC 116, http://www.envlaw.com.au/yardley.html viewed 25 July 2008.
91. Booth v Yardley [2006] QPEC 119, http://www.envlaw.com.au/yardley.html viewed 25 July 2008.
92. For example, s 56 of the Federal Court of Australia Act 1976 (Cth).
93. James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 445.
94. v Lampard (1993) 177 CLR 598; Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Assocs (Aust) Pty Ltd (1986) 13 FCR 46 at 52; Ilat Nominees Pty Ltd v Murragong Nominees Pty Ltd (1980) 48 FLR 385 at 387.
95. Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 21-23.
96. Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] FCA 918; [2001] FCA 1231.
97. Tobacco Control Coalition Inc v Phillip Morris (Aust) Ltd [2000] FCA 1004.
98. See also the example given of the Mt Etna Bat Caves case in Bonyhady, n 31, pp 67-69, where security for costs ultimately thwarted the litigation.
99. Save the Ridge Inc v Commonwealth [2004] FCA 1167; [2004] FCA 1289.
100. Save the Ridge Inc v Commonwealth [2005] FCA 355.
101. Save the Ridge Inc v Commonwealth [2005] FCA 17; [2005] FCA 157; [2006] FCAFC 51.
102. Lawyers for Forests Inc v Minister for the Environment, Heritage & the Arts [2008] FCA 588 at [14].
103. Pring GW and Canan P, SLAPPS: Getting Sued for Speaking Out (Temple Press, 1996) pp 9-11, http://www.temple.edu/tempress/titles/1228_reg.html viewed 25 July 2008.
104. Gunns v Marr [2005] VSC 251; [2006] VSC 329; [2006] VSC 386; [2007] VSC 91. See http://www.gunns20.org viewed 25 July 2008.
105. Walters B, Slapping on the Writs: Defamation, Developers and Community Activism (UNSW Press, 2003).
106. Keim S, "The Civil Action for an Injunction to Prevent Direct Action Aiming to Protect the Environment: Some Tentative Thoughts" (1996) 13 EPLJ 209 at 209.
107. Ogle G, Gunning for Change: The Need for Public Participation Law Reform (The Wilderness Society, 2006), http://www.wilderness.org.au/articles/pdf/Gunning_for_Change_web.pdf viewed 25 July 2008.
108. Ogle, n 96, p 8.
109. Ogle, n 96, p 9.
110. Merits review cases in the AAT are not included because of their rarity and the very limited rights to merits review under the EPBC Act.
111. In the Gunns Pulp Mill case the author's involvement was limited to initial stages of the TWS litigation.
112. Background information for the first three case studies, including copies of court documents and affidavits, is available at the Environmental Law Publishing website, http://www.envlaw.com.au/case.html viewed 25 July 2008.
113. Lack of standing had defeated public interest environmental litigation previously in Queensland: see Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd [1989] 2 Qd R 512 (Mt Etna Bat Caves case).
114. Booth v Bosworth [2000] FCA 1878 at [5].
115. Booth v Bosworth (2001) 114 FCR 39; 117 LGERA 168; [2001] FCA 1453.
116. McGrath C, "The Flying Fox Case" (2001) 18(6) EPLJ 540
117. McGrath, n 38 at 170-172.
118. Wells D in Queensland Parliament, Hansard (2001) pp 2331-2333.
119. EPBC referral 2002/571 available by searching Referrals and Public Notices at the Department of Environment, Water, heritage and the Arts, http://www.environment.gov.au/epbc viewed 25 July 2008.
120. Section 173D of the Nature Conservation Act 1992 (Qld).
121. Section 173E of the Nature Conservation Act 1992 (Qld).
122. Booth v Yardley [2006] QPEC 119, http://www.envlaw.com.au/yardley.html viewed 25 July 2008
123. Booth v Frippery Pty Ltd [2007] QPEC 099, http://www.envlaw.com.au/frippery.html viewed 25 July 2008.
124. The author was counsel for Dr Booth in both cases.
125. Booth v Yardley [2006] QPEC 116, http://www.envlaw.com.au/yardley.html viewed 25 July 2008.
126. The application had been filed without a final decision to accept the risk of costs to meet a 28 day time limit.
127. QCC v Minister for Environment & Heritage [2003] FCA 1463.
128. Minister for the Environment and Heritage v QCC (2004) 139 FCR 24.
129. McGrath, n 35 at 36-38.
130. See public notices for EPBC referral 2002/770 at the Department of Environment, Water, Heritage and the Arts website, http://www.environment.gov.au/epbc viewed 25 July 2008.
131. See public notices for EPBC referral 2008/4313, at the Department of Environment, Water, Heritage and the Arts website, http://www.environment.gov.au/epbc viewed 25 July 2008.
132. McGrath C, "The Japanese Whaling Case" (2005) 22 EPLJ 250. Background documents for this case are available at http://www.envlaw.com.au/whale.html viewed 25 July 2008.
133. HSI v Kyodo Senpaku Kaisha Ltd (2004) 212 ALR 551; [2004] FCA 1510.
134. Attorney-General, Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curie (unpublished submissions, 2005) at [17], http://www.envlaw.com.au/whale7.pdf viewed 25 July 2008.
135. HSI v Kyodo Senpaku Kaisha Ltd [2005] FCA 664.
136. HSI v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 (Black CJ and Finkelstein J; Moore J dissenting).
137. HSI v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at [13] per Black CJ and Finkelstein J with whom Moore J agreed on this point (at [38]) though dissenting on the question of futility.
138. McGrath C, "Japanese Whaling Case Appeal Succeeds" (2006) 23 EPLJ 333 at 333-335.
139. HSI v Kyodo Senpaku Kaisha Ltd [2008] FCA 3.
140. Blay S and Bubna-Litic K, "The Interplay of International Law and Domestic Law: The Case of Australia's Efforts to Protect Whales" (2006) 23 EPLJ 465.
141. McGrath C, "Injunction Granted in Japanese Whaling Case" (2008) 25 EPLJ 77.
142. See the public notices for EPBC referral 2001/422 available at the Department of Environment, Water, Heritage and the Arts website, http://www.environments.gov.au/epbc viewed 10 July 2008.
143. See SunWater, http://www.sunwater.com.au/burnettwater_paradisedam.htm viewed 25 July 2008. Photographs of the completed dam are available at Stop Press Visual Media, http://www.stoppress.com.au/damtour/paradise-dam/index.htm viewed 25 July 2008.
144. Barnes D and Arthington A, "An Early Test of the Water Act 2000 (Qld): Burnett Dam as a Case History" in Water Law & Policy, Conference Proceedings (4th Australasian Natural Resources Law and Policy Conference, 2002) pp 68-80 (citations omitted).
145. Compare Armstrong G, "Where Wild Things are Dammed" (2004) 122 Ecos 18
146. World Wildlife Foundation, To Dam or Not to Dam: Five Years on from the World Commission on Dams (WWF, 2005) p 11
147. Arthington AH, "Australian Lungfish, Neoceratodus Forsteri, Threatened by a New Dam" (2008) Environmental Biology of Fishes (in press).
148. Armstrong, n 129 at 18
149. Queensland Conservation Council, Review of the National Competition Council's (NCC) 2003 Assessment of the Burnett River Dam with Regard to Compliance to the CoAG Water Reform Framework (QCC, 2004), http://www.ncc.gov.au/pdf/AST6WtSu-008.pdf viewed 25 July 2008.
150. Institute for Sustainable Futures, Burnett Region Least Cost Planning Report (University of Technology Sydney, 2002), http://www.travestonswamp.info/downloads/pdfs/ParadiseDamLeastCostPlanningStudypdf.pdf viewed 19 June 2008.
151. The author provided advice to QCC in relation to this matter, instructed by the EDO. QCC has consented to this matter being published.
152. Queensland Government, http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=43954 viewed 25 July 2008.
153. Sun Water Ltd, Sun Water Annual Report 2005-06 (Sun Water, 2006).
154. Department of the Environment and Water Resources, Final Compliance Audit Report Paradise Dam EPBC Ref. 2001/422 (DEW, 2007), http://rogercurrie.files.wordpress.com/2008/04/burnett-audit-report.pdf viewed 19 June 2008.
155. EPBC 2004/1914, EPBC 2005/2262, and EPBC 2007/3385. Background information on these referrals is available at http://www.gunnspulpmill.com.au and http://www.environment.gov.au viewed 19 June 2008.
156. There are innumerable articles in the popular press about the pulp mill and several websites devoted to the controversy surrounding the project such as The Wilderness Society, http://www.wilderness.org.au/campaigns/pulp-mill viewed 25 July 2008, Tasmanians Against the Pulp Mill, http://www.tapvision.info viewed 25 July 2008, Lawyers for Forests, http://www.lawyersforforests.asn.au viewed 25 July 2008, and http://www.tamarpulpmill.info viewed 25 July 2008.
157. Department of the Environment, Water, Heritage and the Arts website, http://www.environment.gov.au/epbc/assessments/bilateral/tas.html viewed 25 July 2008.
158. Resource Planning and Development Commission website, http://www.rpdc.tas.gov.au/poss/pulp/whatsnew viewed 25 July 2008.
159. Pulp Mill Assessment Act 2007 (Tas).
160. Department of the Environment, Water, Heritage and the Arts website, http://www.environment.gov.au/epbc/notices/assessments/2007/3385/information.html viewed 19 June 2008.
161. TWS v Turnbull [2007] FCA 1178; [2007] FCA 1863; [2007] FCAFC 175; [2008] FCAFC 19 (Gunns Pulp Mill case); Investors for the Future of Tasmania Inc v Minister for the Environment & Water Resources [2007] FCA 1179; [2007] FCA 1864 (Second Gunns Pulp Mill case); Lawyers for Forests Inc v Minister for the Environment, Heritage & the Arts [2008] FCA 588 (Third Gunns Pulp Mill case). A decision in the third case was still pending at the time of writing.
162. Stated in the court summary of effect of reasons for judgment in TWS v Turnbull [2007] FCAFC 175.
163. The author acted for TWS as counsel in the early stages of its challenge.
164. The TWS challenge in the Federal Court involved the Minister's assessment of the pulp mill under Pts 7 and 8 of the EPBC Act rather than its ultimate approval under Pt 9 of the Act.
165. Thanks to Greg Ogle of TWS for providing this information and cost estimates for this article.
166. TWS v Turnbull [2008] FCAFC 19.
167. Boer, n 2 at 23.
168. Noting several losses in cases listed in the Appendix.
169. The EDO acted in all cases other than the Gunns Pulp Mill case. FitzGerald and Browne Lawyers acted for TWS in the Gunns Pulp Mill case.
170. Gunningham and Grabosky, n 32, pp 101-104, 408-413.
171. Australian Law Reform Commission, n 10, Ch 13 and Recommendations 45-49.
172. Wilcox M, "Loosening the Shackles" (1996) 13 EPLJ 151 at 153-154.
173. Campbell, n 13 at 257.
174. Queensland legislation also provides an example of provision for the public interest in proceedings to be taken into account in deciding whether to order security for costs. See r 672(i) of the Uniform Civil Procedure Rules 1999 (Qld).
175. R (Corner House Research) v Secretary of State for Trade & Industry [2005] 1 WLR 2600; [2005] EWCA Civ 192 at [74].
176. See s 4.1.23 of the Integrated Planning Act 1997 (Qld).
177. Ruddock, n 62, p 185, notes this point.
178. Environment and Heritage Legislation Amendment Bill (No 1) 2006 Explanatory Memorandum, p 88.
179. See Boer, n 2 at 28; Bragg, n 57.
180. This was established under the Prime Minister's Justice Statement. See Mossop, n 56; Comino, n 56.
181. See Boer, n 2 at 30-35; Australian Law Reform Commission, n 10 at [18.9].
182. Australian Law Reform Commission, n 10, Recommendation 58.
183. See Boer, n 2 at 35.
184. See Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at [65], [89]-[91].
185. See n 36 for a list of the relevant sections.
186. Administrative Review Council, n 25 at [2.1]-[2.6].
187. Administrative Review Council, n 25 at [3.1].
188. Administrative Review Council, n 25, Ch 4.
189. Administrative Review Council, n 25, Ch 5.
190. Gunningham and Grabosky, n 32, pp 94-106, 408-413.
191. Department of Climate Change, Carbon Pollution Reduction Scheme Green Paper (Australian Government, 2008) pp 215-216, 439, 448, http://www.climatechange.gov.au/greenpaper/report/index.html viewed 25 July 2008.
192. Department of Climate Change, n 171, p 448.
193. Gunningham and Grabosky, n 32, p 93.
194. Department of the Environment, Water, Heritage and the Arts website, http://www.environment.gov.au/about/publications/annual-report/index.html viewed 10 June 2008.