Birds Galore Ltd v Attorney-General
| Jurisdiction | New Zealand |
| Judgment Date | 23 June 1988 |
| Date | 23 June 1988 |
| Court | High Court |
(BarkerJ)
Environment Endangered species Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES) Control of export of exotic birds Refusal to grant authority to export on basis of CITES Arrangement between wildlife authorities of New Zealand and Australia Whether court empowered to interpret CITES provisions not implemented in domestic law Whether arrangement between wildlife authorities to be applied by Court Wildlife Act 1953 Conservation Act 1987
Treaties Effect in municipal law Treaty to which State not yet party Intention to accede Whether courts in such a State will give effect to treaty Proceedings for judicial review The law of New Zealand
Summary: The facts:The plaintiff company, wholesalers and breeders of exotic birds, applied under the Wildlife Act 1953 for authorization to export 100 budgerigars and 20 cockatoos to the United States. Authority was refused in respect of 50 of the budgerigars and all the cockatoos on the basis that their export was contrary to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES). Reference was also made to an arrangement between the New Zealand and Australian wildlife authorities which provided that New Zealand would implement a parallel policy to Australia regarding the import and export of parrots and the prohibition on the export of cockatoos.
In proceedings for judicial review, the Secretary for Internal Affairs agreed to reconsider his decision. In the meantime, the Conservation Act 1987 came into force. The 1987 Act amended the Wildlife Act 1953 to the extent that the administration of the Wildlife Act was undertaken by a newly-formed Department of Conservation and the Director General of Conservation took over the duties of the Secretary for Internal Affairs. The Director General refused to reconsider the plaintiff's case, on the grounds that the export of birds for commercial purposes did not promote the conservation of the birds and that the birds were a species included in Appendix II of CITES, i.e. a species in which trade was strictly regulated. Although New Zealand had not yet become a party to CITES, the New Zealand Government had notified the CITES Secretariat that it intended to accede to the treaty. The Director General also stated that it was not an appropriate case to depart from co-operation with the Australian wildlife authorities.
The plaintiff's applied for judicial review of the Director General's decision contending, inter alia, that the decision had been based upon an erroneous interpretation of the provisions of CITES concerning the export of Appendix II birds.
Held:The decision of the Director General of Conservation was quashed.
(1) CITES clearly permitted the export of birds and did not prohibit trade in species included in Appendix II unless there was the likelihood of the species becoming extinct, or the birds had been obtained illegally, or there were no proper arrangements for their safe and humane transportation. In this case the export of birds bred in an aviary presented no threat to the survival of cockatoos in New Zealand. The birds had not been obtained by illegal activity and reasonable conditions could have been imposed regarding their transport. Furthermore, their import into the United States was permitted (pp. 5767, 579).
(2) The Court would consider an international treaty, even one to which New Zealand had not yet acceded, on the basis that, in the absence of express words, Parliament would not have wanted a decision-maker to act contrary to the provisions of such a treaty (pp. 5789).
(3) The purpose behind Australia's policy was to prevent the smuggling of birds out of Australia. The birds in the present case had been raised in an aviary in New Zealand and had not been smuggled into New Zealand from Australia. The refusal to allow the export of aviary-bred birds in common supply could not therefore, be justified under the Australian arrangement. The agreement was a loose arrangement, not embodied in a treaty and the courts would not give it the degree of attention which they gave to an international treaty such as CITES (pp. 57980).
The text of the judgment of the Court commences on the opposite page.
The plaintiff company seeks judicial review of a decision made by the second defendant pursuant to s 56 of the Wildlife Act 1953. The facts are not in dispute and can be summarised as follows: the plaintiff company carries on business as a wholesaler and breeder of exotic cage birds. On 30 May 1986 it applied to the Secretary for Internal Affairs for an export authority pursuant to s 56(l)(b) of the Act to allow it to export to the United States 100 budgerigars and 20 cockatoos. As at the date of that application, the Secretary for Internal Affairs was the official authorised under s 56 of the Act to grant authority to export birds, (other than domestic birds as defined).
On its application form, the plaintiff stated inter alia that: (a) the importer of the birds was a Mr Eduard J Hamilton of South American Imports, San Diego, California; (b) the plaintiff was an approved organisation for the export and import of wildlife within the Commonwealth of Australia; (c) the plaintiff held a permit from the relevant United States authority for the import of 100 budgerigars and 20 cockatoos, of which ten were described in the permit as Leadbeater's cockatoos, six as Sulphur-crested cockatoos and four as long billed Corellas.
By letter dated 4 June 1986 the Secretary for Internal Affairs through his authorised deputy, a Mr Bell, gave the plaintiff authority to export 50 budgerigars; this authority was valid for one month. No explanation was given as to why either the other 50 budgerigars were not included nor why an authority was refused for the 20 cockatoos.
On 7 July 1986 the plaintiffs' solicitors requested, under the Official Information Act 1982, a written statement from the Secretary for Internal Affairs of his reasons for declining the export authority as sought. On 29July 1986 the Secretary advised the plaintiff's solicitors that,
(a) The issue of an authority for the export of only 50 budgerigars was an error.
(b) A replacement authority for the export of 50 additional budgerigars would be issued.
(c) No authority would be granted for the export of any cockatoos.
(d) An authority for the export of parrot species, except budgerigars, would be granted only if the parrot were a personal pet of a person leaving New Zealand permanently and who had been resident in New Zealand for at least two years but only if the parrot had been owned by such person for at least 12 months.
Two reasons were offered for not permitting the export of cockatoos, viz, (a) the export of cockatoos would be contrary to an international convention known as the Convention on International Trade in endangered Species of Wild Fauna and Flora (Washington, 3 March 1973) (CITES); and (b) an agreement or understanding between New Zealand and Australian wildlife authorities required New Zealand authorities to implement a parallel policy to Australia's regarding the import and export of parrots. Australia prohibits the export of cockatoos.
Further reference will be made to the documents sent on this occasion which purported to justify the Secretary's stance.
On 18 September 1986 the plaintiff issued proceedings for judicial review. As a result of certain irregularities, acknowledged by the parties, agreement was reached on 11 March 1987 between counsel; the Secretary's decision was to be reconsidered; the plaintiff was to be given the opportunity of making submissions on the correct principles on which that reconsideration should be based.
On 1 April 1987 the Conservation Act 1987 came into force, with the result that the Wildlife Act 1953 was amended in the following material ways: (a) the Wildlife Act was now to be administered by the newly formed Department of Conservation, in lieu of the Department of Internal Affairs; (b) the Director General of Conservation took the place of the Secretary for Internal Affairs throughout the Wildlife Act; thus the power of the Secretary under s 56 to grant export authorities became vested in the Director General who was given certain powers of delegation.
On 22 May 1987 the plaintiff, through counsel, made extensive written...
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