Japanese Whaling Case

The Japanese Whaling Case involved an application in the Federal Court of Australia for an injunction and declaration to restrain Japanese whaling in the Australian Whale Sanctuary adjacent to Antarctica.

The case was brought by a conservation group, the Humane Society International (HSI), under section 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) against the Japanese company that conducts the whaling.

As the Japanese company has no offices in Australia, to proceed against it HSI needed the permission ("leave") of the Federal Court. HSI applied for this in 2004 but it was refused after the Commonwealth Attorney General submitted to the Court that allowing the case to proceed would cause a diplomatic incident. HSI appealed this refusal to the Full Court of the Federal Court. The Full Court allowed the appeal, the majority, Black CJ and Finkelstein J, stating at [12]-[13]:

"We are also persuaded that the primary judge was in error in attaching weight to what we would characterise as a political consideration. It may be accepted that whilst legal disputes may occur in a political context, the exclusively political dimension of the dispute is non-justiciable. It is appropriately non-justiciable because the court lacks competence to resolve disputes and issues of an exclusively political type, the resolution of which will involve the application of non-judicial norms: compare Japan Whaling Association v American Cetacean Society (1986) 478 US 221 at 230.

Even if, in special circumstances, there is occasion for political considerations to be taken into account in deciding whether an action should be permitted to go forward, there is no room, in our view, for those considerations where, as here, the Parliament has provided that the action is justiciable in an Australian court: R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 at 107."

Black CJ and Finkelstein J also stated principles for the grant of public interest injunctions under the EPBC Act that are of general importance. Broadly speaking, the principle that emerges is that the Federal Court may grant an injunction under section 475 of the EPBC Act even if it may prove impossible to enforce where it serves the public interest objects of the Act by having an educative effect.

Following the successful appeal, HSI attempted to effect service through the diplomatic channel; however, the Government of Japan declined to effect service. The reason stated by the Ministry for Foreign Affairs was:

"The request for service of documents with regards to Kyoto [sic] Senpaku Kaisha Ltd cannot be processed because this issue relates to waters and a matter over which Japan does not recognise Australia’s jurisdiction."  

HSI subsequently sought an order for substituted service under the Federal Court Rules (which is permitted where normal service is impractical). The Federal Court granted the application on 2 February 2007 and HSI effected service on the company.

The Japanese company did not appear at the trial and the Federal Court made the declaration and injunction sought by HSI.

Key documents for this case are:

Application and pleadings

Evidence of whaling
  • Fourth affidavit of Nicola Beynon updating the evidence of whaling in the Australian Whale Sanctuary in 2005/2006 and future whaling.
  • JARPA II research plan presented by the Government of Japan to the 2005 meeting of the International Whaling Commission.

Motion for leave to serve

Appeal to Full Court

Substituted service of originating process


Substituted service of judgment

A discussion of the international law and policy context of this case is available here.


Photograph of Minke whale killed by employees of Kyodo Senpaku Kaisha Ltd on

16 December 2001 approximately 40 nautical miles within the Australian Whale Sanctuary.

Source: Greenpeace photographer Jeremy Sutton-Hibbert, 2001.