By Emily Shipp, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Booth v Bosworth [2001] FCA 1453

Court – Federal Court of Australia
Judge – Branson J
Date of Judgment – 17 October 2001

FACTS OF THE CASE

Booth, the applicant, applied to the Court for an injunction restraining the Bosworths, the respondents, from killing Spectacled Flying Foxes on their lychee orchard in North Queensland. The Bosworths had erected electrical fences in a grid pattern (‘the Grid’) with the purpose of electrocuting flying foxes who approached or departed from the orchard.

Booth applied for an injunction under the Environmental Protection and Biodiversity Conservation Act 1999 (‘the Act’) on the basis that the operation of the Bosworths’ Grid had, or was likely to have, a significant impact on the world heritage values of a declared World Heritage property. The Bosworths’ orchard was located in close proximity to the Wet Tropics World Heritage Area, which is a listed property under the World Heritage Convention.

Booth had visited the Bosworths’ lychee orchard on four nights during the 2000-2001 lychee season and on each night had counted the number of dead Spectacled Flying Foxes on and under the Grid. The average number was 377 per night. The Bosworths did not give evidence regarding the number and species of flying foxes killed by the Grid. The Court concluded, assisted by expert evidence, that the number of female Spectacled Flying Foxes killed by the Grid during the 2000-2001 lychee season fell within the range of 9,900 and 10,800. The Court also accepted expert evidence that the total Australian population of Spectacled Flying Foxes in 2000 did not exceed 100,000.

THE ISSUES

• Whether the operation of the Grid caused, and would it continue to cause, injury and death to a large number of Spectacled Flying Foxes.
• Whether the Spectacled Flying Foxes were resident within the Wet Tropics World Heritage Area and whether the Spectacled Flying Foxes contributed to the biodiversity, ecological function and ongoing evolutionary processes of the Wet Tropics Area.
• Whether the injury and death of the Spectacled Flying Foxes was likely to have, or would have, a significant impact on the world heritage values of the Wet Tropics Area.

THE DECISION

Branson J found that the operation of the Grid had, or was likely to have, a significant impact on the world heritage values of the Wet Tropics World Heritage Area within the meaning of s 12 of the Act. His Honour accordingly held that the Bosworths had contravened s 12 of the Act through their operation of the Grid without approval. Under subsection 475(2) of the Act, the Court therefore had discretionary power to grant an injunction restraining the Bosworths from operating the Grid.

The effect of the operation of the Grid

Guided by expert evidence, Branson J found that approximately 20% of the population of adult female Spectacled Flying Foxes in Australia had been killed by the respondents’ Grid. He further found that if the Grid were allowed to continue during future lychee seasons, there would be an on-going dramatic decline in population, leading to a halving of the population of Spectacled Flying Foxes in less than five years. Branson J concluded that the probable impact of the operation of the Grid would be to render the Spectacled Flying Fox an endangered species in less than five years.

The connection to the World Heritage Area

Branson J held that, given the proximity of the Wet Tropics World Heritage Area to the farm, the Spectacled Flying Foxes killed by the Grid resided in the World Heritage Area.

His Honour noted that the dramatic impact on the population of Spectacled Flying Foxes entailed a significant impact on the world heritage values of the Wet Tropics World Heritage Area. His Honour stated at [105] that:

A dramatic decline in the population of a species, so as to render the species endangered, where that species forms a part … of the record of the Earth’s evolutionary history or of the biological diversity of a most important and significant habitat … is to be understood as having an impact that is important, notable or of consequence.

Significant impact

Branson J found that a large number of Spectacled Flying Foxes had been killed by the operation of the Bosworths’ Grid and that these flying foxes contributed to the biodiversity and evolutionary processes of the Wet Tropics World Heritage Area. Thus, Branson J was satisfied that the disappearance or significant reduction in the numbers of Spectacled Flying Foxes within the Wet Tropics World Heritage Area would have a significant impact on the World Heritage values of the area.

COMMENTARY

This case demonstrates that the way in which environmental law may indirectly protect animals from cruelty, although cruelty to individual Spectacled Flying Foxes through injuring or killing them by electrocution was not taken into account. An injunction could only be obtained when the killing was on such a scale that the species was likely to become endangered. Nevertheless, individual animals benefitted from the protection of the Wet Tropics World Heritage Area as a whole.