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Non-Statutory Judicial Review
On 30 November 2021, the Marine Research Foundation Inc. (‘MRF’) applied to the Minister for the Environment and Water Resources under the Antarctic Marine Living Resources Conservation Act 1981 (Cth) on the prescribed form for a permit to harvest penguins in the Convention area during the period 1 January 2022 to 31 December 2024, for the purpose of conducting scientific research. The proposed research involved an analysis of the penguins’ stomach contents in order to determine the effect of penguins on fish stocks in the Southern Ocean. The permit application specified that up to 150 penguins would be killed per year, and that all penguins killed would be sold to Cynico Pty Ltd, which operated an avant-garde restaurant in Melbourne called Fork.
Ms Appleby, to whom the Minister had delegated in writing all the powers under the Act that he was lawfully able to delegate, received the application. She was interested to hear of the connection to Fork, since her brother, Ethan, worked as a chef there. She mentioned the MRF’s application to Ethan during their regular Friday night dinner, saying, “I didn’t know you cooked penguin.” Ethan replied, “We don’t yet, because the only way we can get them is as a by-product of scientific research.” Ethan mentioned that he hoped that the permit would be granted, since it would be a significant boon for his career, before the conversation moved on to other topics.
In the meantime, the Antarctic Conservation Association Inc. (‘ACA’), which had learned of the MRF’s application, wrote to Ms Appleby on 7 December 2007 to express its concerns. The ACA was considered the only significant community group focusing specifically on environmental issues in the Antarctic region. Other environmental groups that had an interest in any particular Antarctic issue typically sought the involvement and assistance of the ACA. In making decisions relating to permits under the Act, the usual practice of the Department had been to consult with the ACA, although Ms Appleby had not solicited the ACA’s views on this occasion by the time she received its letter. The ACA’s main argument was that killing such a large number of penguins in order to study their diet was unnecessary, and that other methods were available that did not require killing the penguins. Ms Appleby was unconvinced, since the MRF’s application had explained in detail why it was necessary to kill the penguins.
On 7 December, a representative of the ACA, Mr Pingu, telephoned Ms Appleby to follow up on the ACA’s letter. Mr Pingu asked Ms Appleby whether he could meet with her in person to discuss the issue further. “No, thank you,” replied Ms Appleby, “I already have all the information I need to make a decision.”
On 16 December 2021, Ms Appleby granted the MRF’s permit application pursuant to section 9 of the Act, with no additional conditions. As a courtesy, she wrote to Mr Pingu the same day, thanking him for his group’s letter and informing him that she had granted the permit.
Advise ACA as to its prospects of success to challenge the decision, under s 39B of the Judiciary Act 1903 (Cth), to grant the permit to MRF.
In answering this question, you are not expected to discuss Australia’s obligations under international law.
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