This was an application for leave to serve originating process outside Australia on the respondent in Japan. The application, which was supported by a statement of claim, sought declaratory and injunctive relief concerning whaling said to have been carried out by the respondent in the Australian Antarctic Exclusive Economic Zone (EEZ), contrary to provisions of the Environment Protection and Biodiversity Conservation Act 1989 (Cth) (the EPBC Act). In an earlier judgment, Allsop J called for submissions to be made by the Attorney-General, given the important constitutional issues raised by the case: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510.

Held: Application dismissed.

This case and particularly the Attorney-General's submissions raised a number of connected issues, including:

(a) the nature of Australia’s sovereignty over the Australian Antarctic EEZ and the grounds available under the relevant provisions of O 8 r 1 of the Federal Court Rules, including the meaning of the phrase 'in the Commonwealth' therein;

(b) the nature of Australia’s claims to the Australian Antarctic Territory and the adjacent EEZ and the lack of international recognition of those claims;

(c) the likely consequences of any attempted curial enforcement of the EPBC Act upon Australia's international relations with Japan and other countries;

(d) the Commonwealth Government's views as to the appropriate means of dealing with activities in the Antarctic EEZ, such as those apparently conducted by the respondent, which may be seen to be in contravention of the EPBC Act; and

(e) the futility of any order permitting service in Japan.

Further to this, the applicant's submissions raised additional matters about the whaling permits issued by Japan to the respondent.

As the Australian Antarctic Territory was an external territory of Australia, it and the adjacent waters formed part of Australia's Antarctic EEZ. By operation of Australian municipal law, federal legislation, including the EPBC Act, applied to foreigners and foreign-flagged vessels in those adjacent waters. In this case, the respondent's whaling ships constituted such foreign-flagged vessels.

Australia's claim of territorial sovereignty over the Australian Antarctic Territory was recognised by only four countries, excluding Japan. In terms of conducting activities in Antarctica, the Antarctic Treaty 1959 applied, in acknowledgment of the numerous and difficult territorial issues affecting the region. Both Australia and Japan were Parties to that treaty. Article 6 was particularly relevant, and provided:

The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.

Any Australian domestic legislation regarding the Antarctic EEZ must be read in conformity with the convention providing the basis for that legislation. Under the United Nations Convention on the Law of the Sea (UNCLOS), coastal States are acknowledged to possess EEZs up to 200 nautical miles beyond the baseline from which the breadth of territorial seas are measured (art 57). This grants those States additional control over their adjacent waters. Pursuant to art 55 of UNCLOS, claims for sovereignty in an EEZ by the relevant coastal State are to be balanced against the rights and freedoms of other States, as governed by UNCLOS.

The rights and jurisdiction of coastal States concerning their EEZ is further explained in art 56 of UNCLOS, while the rights and duties of other States within the EEZ are expanded upon in art 58. Under art 87, there also exists the fundamental right of the freedom of the high seas, and the prohibition in art 89 against States claiming sovereignty over any parts of the high seas.

It was submitted on behalf of the Attorney-General that Australia's claim to the Antarctic EEZ was a claim - supported by domestic legislation - to exercise the rights of exploitation, conservation, management, and control, as granted to it under UNCLOS. Australia was not purporting to make a claim of full sovereignty over the waters adjacent to the Antarctic Territory apart from the territorial sea.

This submission recognised the inherent limitations of any claims by Australia over the Antarctic EEZ. The issue was further complicated by Japan's non-recognition of Australia's claim to the Antarctic EEZ and Antarctic Territory, and by extension, Australia's entitlement under international law to pass the Environment Protection and Biodiversity Conservation Act (EPBC Act). In Japan's view, what Australia considered to be the Antarctic EEZ - under its sovereignty - in fact formed part of the high seas, and thus could not be subsumed under Australia's control, in consideration of arts 87 and 89 of UNCLOS. This also meant that the EPBC Act could not apply to anything that happened there.

On account of views held by the Australian Government, there had been no attempt to intercept, board, or arrest Japanese vessels conducting whaling activities adjacent to the Australian Antarctic Territory, and within the Antarctic EEZ. These views, which turned toward matters of diplomacy and protecting the country's national and international interests, were laid out in the Attorney-General's submissions. Allsop J confirmed that the Government's views and concerns were non-justiciable, and would not be examined any further, including deciding judicially whether those views and concerns were rightly held. The Attorney-General's submissions were, however, an appropriate vehicle for disclosing to the Court the Executive Government's perspectives on the wider issues.

The applicant, the Humane Society International Inc (HSI), had standing to bring these proceedings under the EPBC Act, the outstanding concern being the fact that the respondent was outside the jurisdiction. The primary issue for the Court to decide was whether to grant discretionary leave to serve process outside the jurisdiction, under Chapter III of the Constitution. In Allsop J's view, any attempt to serve process on the respondent in Japan, seeking orders under the EPBC Act, would be perceived as the attempted enforcement of unrecognised rights. The Japanese government viewed the Antarctic EEZ as the high seas, and thus as accessible to it as any other State, including for whaling activities permissible under the Whaling Convention. The Australian Government did not want to allow the enforcement of the EPBC Act against a Japanese entity, and service outside of the jurisdiction, in the interests of preserving the diplomatic status quo. Not acting would also go toward protecting Australia's territorial claim over the Australian Antarctic Territory and the Antarctic EEZ. These issues would not be so pertinent were the respondent either in the jurisdiction, or else willing to submit to the Court's jurisdiction.

In addition to the international legal concerns connected with any attempt to seek orders under the EPBC Act against the respondent, it would be extremely difficult to enforce any subsequent Court order. Even if there was the opportunity for enforcement of an order, the Executive Government would be highly reluctant to assist with enforcing that order due to its contrary perspectives on Australia's international interests.

The key underlying issue in these proceedings, of great concern to the HSI, was the hunting and killing of whales. Allsop J touched on this issue and concluded that views on the moral repugnancy of whaling were varied, and were mediated on an international level by the Whaling Commission, Whaling Convention, and the views of nation States. The content of views on whaling had the potential to arise in a wider international context.

In HSI's favour was its standing to bring the proceedings and the material which disclosed an evident, prima facie case of contravention of Australian municipal law. However, because of the respondent's position outside the jurisdiction, the Court had to consider the larger issue of whether it should exercise its Constitutional discretion and permit service under the EPBC Act outside the jurisdiction, with HSI seeking a declaration and injunction under domestic legislation. At stake were issues of international political controversy and a range of potential consequences, most prominently the outrage of the Japanese government at what would seem to be the exercise of a baseless claim against a domestic company.

Furthermore, even if an injunction were awarded, enforcing it would be rendered more challenging by the lack of any place of business in Australia for the respondent, the fact that the respondent has no reason to call at any Australian ports, and the fact that Japanese courts would be very unlikely to assist in enforcing the injunction. A declaration alone would serve no purpose except as an empty political statement.

Ultimately, Allsop J concluded that he would not exercise the Court's discretion to allow service of originating process outside the jurisdiction. In addition to all the reasons above, to do so would be to place the Court at the centre of an international dispute that the Executive Government had no desire to initiate. The futility of the methods suggested by the applicant were intertwined with considerable non-justiciable considerations, both militating against the enlivening of the Court's discretion. That said, the question of granting leave would be answered differently if there was any proof or material on which it could reliably be said that the respondent might be brought to Court, have orders brought against them, and the EPBC Act enforced.