FEDERAL COURT OF AUSTRALIA
Forestry Tasmania v Brown  FCAFC 186
ENVIRONMENT PROTECTION – prohibition on taking action likely to have significant impact on threatened species – exemption from prohibition for forestry operation undertaken in accordance with regional forest agreement – by cl 68 of agreement appellant agrees to protect species through CAR Reserve System – whether appellant exempt.
Held: Section 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) exempts appellant from requirement in s 18(3) of the Act that it take no action likely to have significant impact on threatened species.
Forest Practices Act 1985 (Tas) ss 6, 17(4)
Regional Forest Agreements Act 2002 (Cth) ss 6(4)
Tasmanian Regional Forest Agreement 1997, cl 68
South Australia v The Commonwealth (1962) 108 CLR 130 cited
Orr v Holmes (1948) 76 CLR 632 cited
Murphy v Stone‑Wallwork (Charlton) Ltd  1 WLR 1023 considered
Petreski v Cargill (1987) 18 FCR 68 considered
CDJ v VAJ (1998) 197 CLR 172 cited
Allesch v Maunz (2000) 203 CLR 172 considered
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 cited
Lowe v Lombank Ltd  1 WLR 196 distinguished
TAD 4 OF 2007
SUNDBERG, FINKELSTEIN AND DOWSETT JJ
30 NOVEMBER 2007
MELBOURNE (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 4 OF 2007
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
THE COMMONWEALTH OF AUSTRALIA
THE STATE OF TASMANIA
SUNDBERG, FINKELSTEIN AND DOWSETT JJ
DATE OF ORDER:
30 NOVEMBER 2007
MELBOURNE (HEARD IN HOBART)
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the primary judge be set aside, and in lieu thereof it be ordered:
(a) the application be dismissed
(b) the parties bear their own costs of the proceedings at first instance.
3. The respondent’s notice of contention be dismissed.
4. The respondent pay the appellant’s costs of the appeal and notice of contention.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 4 OF 2007
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
THE COMMONWEALTH OF AUSTRALIA
THE STATE OF TASMANIA
SUNDBERG, FINKELSTEIN AND DOWSETT JJ
30 NOVEMBER 2007
MELBOURNE (hEARD IN HOBART)
REASONS FOR JUDGMENT
1 This is an appeal from two declarations made and an injunction granted by the primary judge. The declarations are that
· the appellant’s forestry operations in coupes WT017E (17E) and WT019D (19D) in the Wielangta Forest area (Wielangta) in south east Tasmania, and its likely future forestry operations in other coupes in Wielangta (the forestry operations), are likely to have a significant impact on the broad toothed stag beetle (the beetle), the Tasmanian wedge‑tailed eagle (the eagle) and the swift parrot (the parrot), and
· the forestry operations have not been undertaken by the appellant in accordance with the Tasmanian Regional Forest Agreement 1997 (the RFA).
Pending the grant of any approval under Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) or further order, the appellant was restrained from undertaking in Wielangta any “forestry operations” as defined in s 40(2) of the Act.
2 The amended application is the only formal document that explains the respondent’s case. There is no statement of claim and consequently no other pleadings. Under the heading “Grounds” in the amended application the respondent states
(a) The appellant is the “responsible person” within the meaning of s 17 of the Forest Practices Act 1985 (Tas), and the person able to undertake a forestry operation purportedly pursuant to the Regional Forest Agreements Act 2002 (Cth) (the RFA Act) and the RFA, in respect of Wielangta.
(b) The appellant has undertaken or proposes to undertake the forestry operations.
(c) The beetle, the eagle and the parrot are listed as endangered species pursuant to the Act and the Threatened Species Protection Act 1995 (Tas), and are priority species listed in Attachment 2 (Part A) of the RFA.
(d) The beetle is found within Wielangta, has been found in coupe 17E, is likely to be found in coupe 19D, and is likely to be present in other coupes in Wielangta.
(e) The eagle is found and nests within Wielangta, has at least one nest site adjacent to coupe 19D, and is likely to be present in other coupes in Wielangta.
(f) The parrot is found, nests and feeds within Wielangta, has at least one nest site adjacent to coupes 17E and 19D, and is likely to be present in other coupes in Wielangta.
(g) The forestry operations are the taking of an “action” for the purposes of s 18 of the Act that will have, or will be likely to have, a significant impact on the beetle, the eagle and the parrot.
(h) The appellant does not have approval for its forestry operations under Part 9 of the Act.
(i) Part 4 of the Act does not permit the appellant to undertake the forestry operations without an approval under Part 9 because the RFA is not a “regional forest agreement” within the meaning of s 38(2) of the Act and s 4 of the RFA Act. This ground is particularised as follows:
“(i) Section 38(2) of the Act incorporates the meaning given to the phrase ‘regional forest agreement’ by s 4 of the RFA Act.
(ii) Section 4 of the RFA Act defines a regional forest agreement as an agreement in force between the Commonwealth and a State in respect of a region or regions and satisfying all the specified conditions in s 4.
(iii) Two of the specified conditions which must be satisfied are that the agreement provides for:
(1) a comprehensive, adequate and representative reserve system; and
(2) the ecologically sustainable management and use of forested areas in the region or regions.
(iv) Properly construed, the phrase ‘provides for’ in s 4 means that an RFA must establish an enforceable regime that meets the two specified conditions referred to in sub‑par (iii) above before forestry operations commence.
(v) To the extent that the two conditions referred to in sub‑par (iii) above are not enforceable at the suit of the Commonwealth or otherwise, the Tasmanian RFA does not satisfy those two specified conditions.
(j) Further and alternatively to (i), Part 4 of the Act does not permit the appellant to undertake its forestry operations without an approval under Part 9 because the appellant’s forestry operations are not being undertaken in accordance with the RFA and therefore are not protected by s 38(1) of the Act from the requirement to obtain an approval before taking action covered by s 18. This ground is particularised as follows:
“(i) By cl 68 of the Tasmanian RFA Tasmania ‘agrees to protect’ the priority species listed in Attachment 2 (Part A) of the Tasmanian RFA.
(ii) This includes … the Broad Toothed Stag Beetle, the Wedge‑tailed eagle and the Swift Parrot.
(iii) Properly construed, the phrase ‘agrees to protect’ in cl 68 means Tasmania agrees to take steps which will in fact protect those species, rather than Tasmania agrees that it intends to protect those species.
(iv) The CAR reserve system as it operates in the Wielangta Forest, does not in fact protect the Broad Toothed Stag Beetle, the Wedge‑tailed eagle or the Swift Parrot from forestry operations or at all.
(v) The management prescriptions contained in the Forest Practices Plans for coupes WT017E and WT019D and proposed to be applied with respect to forestry operations in other coupes within the Wielangta Forest area do not in fact protect the Broad Toothed Stag Beetle, the Wedge‑tailed eagle or the Swift Parrot from forestry operations or at all.
(vi) To the extent that Priority Species listed in Attachment 2 (Part A) of the Tasmanian RFA
(1) are not in fact protected before forestry operations commence in Wielangta; alternatively
(2) remain exposed to a significant impact from the commencement of forestry operations in Wielangta
those forestry operations are not in accordance with the Tasmanian RFA.
3 The respondent sought declarations that
(a) the RFA is not a regional forest agreement within the meaning of s 38(2) of the Act and s 4 of the RFA Act;
(b) the appellant’s forestry operations in Wielangta are likely to have a significant impact on the beetle, the eagle and the parrot, and
(c) those operations will not, under the present forest practices system in Tasmania, be undertaken in accordance with the RFA.
He also sought an injunction restraining the appellant from undertaking those operations.
AGREED LIST OF ISSUES
4 A little over twelve months before the amended application was filed the parties filed an agreed list of issues:
1. The likely extent of forestry operations in Wielangta beyond August 2008.
2. Whether forestry operations in coupes 17E and 19D and proposed forestry operations in coupes other than 17E and 19D are “actions” for the purposes of the Act.
3. The extent to which the beetle is present or likely to be present in Wielangta.
4. The extent to which the eagle has nest sites in or adjacent to coupes within Wielangta.
5. The extent to which the parrot is present or likely to be present in Wielangta.
6. What part of Wielangta will be or is likely to be subject to forestry operations in the next approximately 15 years.
7. Whether the forestry operations are likely, having regard to the endangered status of the three species and all other threats to them, to have a significant impact on the three species.
8. Whether the RFA is a regional forest agreement within the terms of the RFA Act.
9. Whether the appellant has an exemption from Part 9 of the Act by virtue of s 38 of the Act and s 6(4) of the RFA Act.
10. Whether forestry operations in Wielangta will be or have been carried out in accordance with the RFA by reference to cl 68.
The primary judge agreed to deal with the issues prior to making any orders. This course was not taken pursuant to Order 29 rule 2 of the Federal Court Rules.
PRIMARY JUDGE’S TREATMENT OF ISSUES
Issue 1: likely extent of operations beyond August 2008
5 The August 2008 date is the termination date of the Forest Practices Plan for coupes 17E and 19D. The primary judge said that since the “best guide to future conduct is past conduct”, the appellant’s past conduct in using Wielangta as a source of wood products, and its planning to do so in the future, made it reasonable to predict that forestry operations will occur in Wielangta beyond August 2008, in all likelihood at least until 2013.
Issue 2: whether operations in 17E and 19D “actions”
6 This issue arises under s 18(3) of the Act:
“A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the endangered category.
(a) for an individual – 5,000 penalty units;
(b) for a body corporate – 50,000 penalty units.”
It was common ground that the beetle, the eagle and the parrot are listed as endangered species.
7 The word “action” is defined in s 523 of the Act so as to include a project, a development, an undertaking and an activity or series of activities. The primary judge was of the opinion that forestry operations fell within s 523. However, s 524 lists a number of things that are not “actions”. The only one of present relevance is that in sub‑s (2):
“a decision by a government body to grant a governmental authorisation (however described) for another person to take an action ….”
By sub‑s (1)(e) “an agency of a State” is a government body. It was common ground that the appellant is an agency of the State of Tasmania.
8 The appellant had granted Gunns Limited authorisations to conduct forestry operations in coupes 17E and 19D. The authorisations were constituted by the Forest Practices Plans for those coupes. The primary judge rejected the appellant’s contention that these grants brought it within s 524(2). He said at :
“there is no attack on a Forest Practices Plan, but on the work which is planned to take place under a Forest Practices Plan.”
His Honour’s answer to issue 2 was that the forestry operations in coupes 17E and 19D and proposed operations in other coupes constituted “actions” for the purposes of s 18(3).
Issue 3: extent to which beetle present or likely to be present
9 In reliance on the evidence of Dr Peter McQuillan, an expert on the beetle, the primary judge concluded that the beetle is likely to be present in Wielangta in low population densities, mainly but not exclusively in areas of wet and damp forest and also in damp areas or transition zones within dry forest, albeit in even lower densities than in areas of wet and damp forest.
Issue 4: extent of eagle nest sites
10 The primary judge’s answer was that the eagle has six nest sites adjacent to coupes in Wielangta, two or three of which are undisturbed, and it is possible that there are undiscovered nests.
Issue 5: extent of parrot presence
11 The primary judge’s answer was that the parrot is likely to be present in Wielangta during the spring breeding seasons in relatively large numbers when the blue gums, on the nectar of which it feeds, are flowering, and in relatively small numbers, or not at all, in the spring breeding seasons when the blue gums are not flowering.
Issue 6: extent of forest operations in next 15 years
12 Having regard to his finding on issue 1, the primary judge concluded that it was likely that fourteen listed coupes would be subject to forestry operations up to 2013.
Issue 7: whether issue 2 operations likely to have significant impact on three species
13 The primary judge concluded that the present and likely future forestry operations will have a significant impact on the eagle, notwithstanding the presence of other impacts which may be even more significant, such as natural threats and unnatural threats. His Honour concluded that it was likely that operations in coupes 17E and 19D and proposed operations elsewhere in Wielangta have or will have a significant impact on the beetle, having regard to its endangered status and all other threats to it. He reached the same conclusion in relation to the parrot, the significant impact being the reduction of its prime nesting habitat.
Issue 8: whether Tasmanian RFA “regional forest agreement”
14 The primary judge held that the RFA is a regional forest agreement within the meaning of the RFA Act.
Issue 9(a): whether appellant exempt from Part 9 of Act
15 Section 38 of the Act, which is in Part 4, provides:
“(1) Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.
(2) In this Division:
RFA or regional forest agreement has the same meaning as in the Regional Forest Agreements Act 2002.
RFA forestry operation has the same meaning as in the Regional Forest Agreements Act 2002.”
Section 18(3) of the Act, set out at , is in Part 3 of the Act. So is s 19(3)(a), which provides that a sub‑section of s 18 does not apply to an action if Part 4 permits a person to take the action without an approval under Part 9. The primary judge concluded that the appellant has an exemption from Part 3 and/or Part 9 of the Act by virtue of s 38 (and s 6(4) of the RFA Act which is in the same terms as s 38), provided the forestry operation is undertaken in accordance with the RFA.
Issue 9(b): have operations been carried out in accordance with RFA
16 Section 38(1) affords an escape from s 18(3) only if an RFA forestry operation is undertaken “in accordance with an RFA”. Clause 68 of the RFA provides:
“The State agrees to protect the Priority Species … through the CAR Reserve System or by applying relevant management prescriptions.”
17 The primary judge dealt first with s 38. He was of the view that the words “in accordance with an RFA” oblige the State, as a condition of obtaining the exemption in s 38, to ensure that operations it carries out through the appellant are conducted in accordance with the requirements set out in the RFA. The relevant requirement is cl 68. See the particulars under [2(j)] and issue 10 at . The first limb of cl 68 requires the State to protect the species through the CAR Reserve System (CAR). The primary judge said at ‑:
“An agreement to ‘protect’ means exactly what it says. It is not an agreement to attempt to protect, or to consider the possibility of protecting, a threatened species. It is a word found in a document which provides an alternative method of delivering the objects of the Act in a forestry context.
The method for achieving that protection is through the CAR Reserve System or by applying relevant management prescriptions. Does that mean the State’s obligations are satisfied if, in fact, the CAR Reserve System or relevant management prescriptions do not protect the relevant species? I do not think so. If the CAR Reserve System does not deliver protection to the species, the agreement to protect is empty (in the absence of relevant management prescriptions performing that role). If relevant management prescriptions do not perform that role, the State should ensure that it does, otherwise it is not complying with its obligation to protect the species. To construe cl 68 otherwise would be to turn it into an empty promise.”
18 The primary judge then considered whether CAR protected the beetle, the parrot and the eagle. In the case of each species his Honour concluded that it did not. He found that CAR leaves large areas of the beetle’s range unprotected. Most of the parrot’s nesting and foraging habitat lies outside the dedicated reserves. Most of the eagle’s territories and nests are outside CAR. On the basis that the best indicator of future behaviour is past behaviour, the primary judge said there was no evidence that the State can or will protect the species through CAR, in isolation, in the future. It will be necessary to return to the structure of CAR later in these reasons.
19 The primary judge also examined whether the State has protected the species by applying relevant management prescriptions – the second limb of cl 68. He concluded it has not, and that it would not in the future do so.
20 His Honour answered issue 9(b) by saying at :
“Forestry operations in the Wielangta forest area have not been carried out in accordance with the RFA by reference to cl 68. I am not confident that they will be carried out in accordance with the RFA by reference to cl 68 in the future. Consequently, s 38 of the Act does not exempt Forestry Tasmania’s forestry operations in Wielangta from the provisions of Pt 3 of that Act. The same applies with respect to s 6(4) of the RFA Act.”
21 The primary judge concluded his reasons with observations on his approach to the construction of the Act. He said that his construction was informed by the Conventions the Act implements, and he referred to the Convention on Biological Diversity 1999 and the Convention on Conservation of Nature in the South Pacific 1976. After referring to s 139 of the Act, his Honour said at ‑:
“Promotion of the conservation of biodiversity, as s 3(1)(c) of the Act requires, in context, can only be achieved by favouring a construction of the Act which views protection of the environment as an act of not merely keeping threatened species alive, but actually restoring their populations so that they cease to be threatened. Section 3(2)(e)(i) says it all when it stresses the promotion of the recovery of threatened species.
The requirement in s 18(3) of the Act that an action not occur which is likely to have a significant impact on a listed threatened species must be seen in the context of an Act and Conventions which underlie the promotion of recovery of threatened species. Similarly, the exemption for RFA forestry operations in s 38 of the Act must be seen, in context, as providing an exception only if an alternative means of promoting the recovery of a species is achieved by a Regional Forest Agreement.”
The primary judge allowed the parties and interveners time to reflect on his reasons before making orders. On 20 December 2006 he made the declarations and granted the injunction set out at .
22 The appellant has appealed from the whole of the judgment except for the answers to issue 8 – that the RFA is a regional forest agreement within the meaning of the RFA Act, and issue 9(a) – that the appellant has an exemption from Pt 3 and/or Pt 9 of the Act by virtue of s 38 of the Act and s 6(4) of the RFA Act provided the relevant forestry operation is undertaken in accordance with the RFA.
Central issue on the appeal
23 The central issue on the appeal is whether s 38 of the Act exempts the appellant’s forestry operations from the provisions of Part 3. Section 6(4) of the RFA Act throws up the same issue. In order to determine this question it is necessary to understand the structure of the relevant parts of
· the Act
· the RFA
· the CAR Reserve System
· the RFA Act.
24 The account in this paragraph through  is of the Act in the form it took when the matter was argued before the primary judge. Amendments made in 2006, which took effect after his decision, are noted at . Part 3 of the Act deals with “Requirements for environmental approvals”. Division 1, which consists of ss 12 to 25F, deals with “Requirements relating to matters of national environmental significance”. Subdivisions A to F deal respectively with World Heritage, National Heritage, Wetlands of international importance, Listed threatened species and communities, Listed migratory species, Protection of the environment from nuclear actions and Marine Environment. The structure of each Subdivision is essentially the same: prohibition of the taking of certain actions, exceptions to the prohibition, and offences in relation to the taking of certain actions. Subdivision C – Listed threatened species and communities – which consists of ss 18, 18A and 19, is typical. Section 18(3)(b) prohibits the taking of an action that is likely to have a significant impact on a listed threatened species included in the endangered category, and provides for a civil penalty for contravention. Section 18A creates criminal offences in relation to taking certain actions.
25 Section 19 excludes from the ambit of ss 18 and 18A certain actions relating to listed threatened species. Section 19(1) provides:
“A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of any subsection of that section that relates to a listed threatened species.”
Sub‑section (3) provides in part that
“A subsection of section 18 or 18A does not apply to an action if:
(a) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection ….”
26 Part 9 deals with “Approval of actions” by the Minister. Subdivision B of Division 1 – Considerations for approvals and conditions – consists of ss 136 to 140A. Section 136 sets out a number of matters the Minister must take into account in deciding whether to approve the taking of an action, and what conditions to attach to an approval. Section 139(1) requires the Minister, in deciding whether to grant approvals for the purposes of ss 18 or 18A, not to act inconsistently with, amongst other things, the Conventions referred to at . In considering whether to grant an approval for the purposes of ss 18 or 18A for the taking of an action that has, will have or is likely to have a significant impact on a particular listed threatened species, the Minister must have regard to any approved conservation advice for the species or community: s 136(2).
27 Part 4 of the Act deals with “Cases in which environmental approvals are not needed”. These include actions covered by bilateral agreements (Div 1), actions covered by Ministerial declarations and accredited arrangements or processes (Div 2), and forestry operations in certain regions (Div 4). It is in Div 4 that s 38 appears. As already indicated, s 38(1) provides that Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with a regional forest agreement.
28 The Act was amended by the Environment and Heritage Legislation Amendment Act (No 1) 2006. So far as relevant to the present case, by s 527E the amending Act inserted an elaborate definition of “impact”. This is relevant to s 18(3), set out at , which uses the expression “significant impact on a listed threatened species”. In view of the conclusion we have reached on other issues in the appeal, we do not need to consider the definition of “impact”, and accordingly we do not set it out.
29 This is an agreement made in 1997 between the Commonwealth and the State of Tasmania. The description in this paragraph through  is of the RFA in the form it took when the matter was before the primary judge. Amendments made to the RFA in 2007 are considered at  to . Recital A is as follows:
“The State and the Commonwealth have agreed to establish a framework for the management and use of Tasmanian forests which seeks to implement effective conservation, forest management, forest industry practices and in particular:
· provide certainty for conservation of environment and heritage values through the establishment of a CAR Reserve System; and
· provide for the ecologically sustainable management and use of forests in Tasmania; and
· provide for future growth and development of Tasmanian Industries associated with forests and timber products; and
· assist with the development of forest‑based tourism and recreational opportunities based on Tasmania’s environmental advantages; and
· provide for certainty of resource access to the forest industry; and
· provide for certainty of resource access to the mining industry; and
· remove relevant controls in relation to the application of the Export Control Act 1982 (Cth); and
· introduce a range of new or enhanced initiatives to assist with forest based development; and
· encourage the development of forest based research; and
· encourage significant employment opportunities and investment throughout Tasmania.”
30 The RFA applies to the Tasmanian Region, which is defined as the whole of the State: recital B. Part 1 consists of cl 1 to 17. Clause 5 provides that the purpose of the RFA is to provide long‑term stability of forests and forest industries. Clause 6 records that export controls on wood sourced from plantations in Tasmania have been removed, and that as a result the export of hardwood woodchips or other unprocessed wood sourced in Tasmania will not be subject to any export controls. The RFA is to remain in force for 20 years: cl 7. Clauses 10 to 15 deal with dispute resolution. A dispute must be resolved in accordance with those clauses, which involve mediation.
31 Part 2 consists of cl 18 to 91. Clause 18 provides that the Part is not intended to create legally binding relations, and the provisions of Part 1 in so far as they relate to Part 2 are also not binding. By cl 24(a) the State undertakes to manage the areas in CAR identified in Attachment 6 on the basis outlined in that Attachment and in accordance with the relevant objectives set out in Attachment 7.
32 Attachment 6 is headed “Comprehensive, Adequate and Representative Reserve System on Public Land”. CAR on public land comprises existing and new reserves as shown on Map 1, and includes formal reserves, informal reserves and values managed by prescription. The last‑mentioned element includes areas protected by management prescription under the Forest Practices Code or in Forest Management Plans. CAR reserves on public land, excluding values managed by prescription, will total 2,700,000 hectares, comprising 2,304,000 hectares of existing reserves and 396,000 hectares of additional reserves. The Attachment identifies in table form the various reserves and areas managed by prescription.
33 Clauses 30 to 38 deal with threatened species and communities. By cl 33 the parties agree to seek to improve outcomes of Recovery Plans for species listed under the Threatened Species Protection Act 1995 (Tas) or the Threatened Species Protection Act 1992 (Cth) by developing multiple species Recovery Plans where appropriate.
34 Clause 48 provides
“The parties agree that the CAR Reserve System is to be established for the purpose of ensuring the long‑term conservation and protection of the values defined by the JANIS Reserve Criteria and the land required to achieve this specified in Attachments 6 and 8.”
Attachment 8 describes a program to be established in order to protect CAR values on private land by the voluntary participation of private landowners based on the principles there set out.
35 By cl 49 the parties agree that CAR as established in accordance with the agreement will comprise on the public land described in Attachment 6:
· Dedicated Reserves and other Formal Reserves
· Informal Reserves, and
· areas with CAR values protected by prescription.
On private land CAR will comprise land with CAR values protected under secure management arrangement by agreement with private landowners.
36 By cl 50 the parties agree that CAR, as established in accordance with the agreement:
· meets the JANIS Reserve Criteria, and
· sufficiently protects identified CAR values with adequate buffers within the CAR reserve boundaries.
The expression “JANIS Reserve Criteria” is defined as the criteria described in the JANIS report which provide guidelines for the reservation of biodiversity, old growth forest and wilderness, taking account of reserve design and management and social and economic considerations. The JANIS report is defined as the 1997 report titled “Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative Reserve System for Forests in Australia”.
37 The parties agree to take appropriate action to establish CAR on the public land described in Attachment 6, and the State agrees to implement a process which will facilitate the voluntary participation by private landowners to protect the values specified in Attachment 8: cl 51 and 59.
38 By cl 60 the State agrees to adopt the broad policy framework specified in Attachment 9 which is designed to maintain an extensive and permanent Native Forest Estate and to maintain the sustainability of the total Forest Estate. By cl 61 the parties agree
“that the policy framework referred to in clause 60, together with the CAR Reserve System and other improvements in the Forest Management Systems as part of this Agreement, meet the requirements of the NFPS for the protection of regional conservation values and catchment management objectives.”
The expression “Forest Management Systems” in cl 61 means
“the State’s suite of legislation, policies, codes, plans and management practices as described in the Tasmanian – Commonwealth Regional Forest Agreement Background Report Part E ….”
39 Clause 62 is headed “Ecologically Sustainable Forest Management (ESFM)” and provides:
“The parties agree that ESFM is an objective which requires a long term commitment to continuous improvement and that the key elements for achieving it are:
· the establishment of the CAR Reserve System;
· the development of internationally competitive forest products industries which are economically sustainable and provide for social and economic benefit; and
· the establishment of fully integrated and strategic forest management systems capable of responding to new information.”
40 By cl 63 the State confirms its commitment to the ongoing development, implementation and achievement of ESFM on both Public Land and Private Land through the development and implementation of its Forest Management Systems. By cl 64 it agrees that in providing for ESFM, its Forest Management Systems will be amended to reflect the undertakings of the RFA and in particular those specified in Attachment 10. That Attachment is headed “Improvements to Tasmania’s Forest Management Systems” and sets out thirteen steps the State intends to take to further improve the Systems. By cl 93 the State agrees to further develop its Forest Management Systems and processes through the development and implementation of environmental management systems in accordance with the principles specified in Attachment 5.
41 Clause 68 can usefully be repeated:
“The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions.”
42 Clauses 74 to 77 deal with Employment and Industry Development. Clause 74 provides:
“In recognition of the unique contribution of forest‑based industries to the Tasmanian economy, the Parties intend that this Agreement will have the effect of enhancing the future growth and development of Tasmania’s industries associated with forests and timber products by the implementation of the RFA Forests–Employment and Industries Development Strategy. The parties agree to cooperate in implementing the specified actions in that Strategy as described in Attachment 12. In particular, future growth and development will be achieved through:
· certainty of resources access to the forest industry; and
· removal by the Commonwealth of the need for export licences for unprocessed wood and woodchips sourced in Tasmania; and
· active encouragement of the development of downstream processing in Tasmania such that the preferred market for growers is within the State; and
· a range of new or enhanced initiatives designed to encourage investment, plantation development, downstream processing, value‑adding and jobs growth in Tasmania’s forest based industries; and
· the implementation of new intensive forest management initiatives, including eucalypt and blackwood plantations, and Native Forest thinning, to balance changes in Forest inventory resulting from this Agreement and expand that inventory.
43 Part 3 of the RFA creates legally enforceable rights and obligations. Clause 102 enables the Commonwealth to terminate the RFA where the State has failed to observe various provisions, including failing to introduce promised legislation, conserve the CAR Reserve areas identified in Attachment 6, proclaim promised new reserves, observe the terms and conditions attached to financial assistance provided by the Commonwealth and comply with cl 68, “other than a failure of a minor nature which is not one or a part of a series of deliberate or reckless failures of a minor nature”.
44 The essential features of the RFA that appear from the foregoing summary are:
(a) it establishes a framework for the management and use of Tasmanian forests;
(b) as the word ‘framework’ indicates, the agreement did not upon its making thereupon bring into being a fully fledged CAR;
(c) Part 2 of the agreement, in which cl 68 appears, does not create legally binding relations;
(d) although failure to comply with cl 68 enables the Commonwealth, subject to certain conditions, to bring the agreement to an end, the Commonwealth has no power to enforce the clause;
(e) the agreement is redolent of compromise between various competing interests, in particular the timber industry and conservation of the environment; and
(f) the agreement makes clear that forestry operations are to continue pursuant to the State’s suite of legislation, policies, codes, plans and management practices, upgraded to reflect the content of the RFA.
CAR Reserve System
45 CAR has frequently been mentioned in the course of consideration of the RFA at  to . It is described in the RFA as
“areas under any of the following categories of land tenure ‑ Formal Reserves including Dedicated Reserves, Informal Reserves and other areas on Public Land which have CAR values protected by prescription, and parts of the Private Forest Estate where the CAR values are protected under secure management arrangement by agreement with private landholders. This reserve system is based on the principles of comprehensiveness, adequacy and representativeness, as described in the JANIS Report.”
46 The Foreword to the JANIS Report (1997) underlines the competing interests referred to in [44(e)]:
“For over two decades in Australia the competing demands of conservation and industry on our forests have been an area of debate and controversy. The National Forest Policy Statement (NFPS), agreed by the Commonwealth, State and Territory Governments, provides the framework for a long term solution to this issue.
The NFPS sets out the process for undertaking joint Commonwealth and State/Territory Comprehensive Regional Assessments (CRAs) of natural and cultural, and economic and social values of Australia’s forests as the basis for negotiation of Regional Forest Agreements (RFAs). RFAs are to be developed between the States/Territories and the Commonwealth and they will encompass the establishment and management of a forest reserve system which is comprehensive, adequate and representative (CAR), the ecologically sustainable management of forests outside the reserve system, and the development of an efficient, internationally competitive timber industry.”
47 The Report’s Introduction also speaks of the goals of the NFPS, embracing the concept of ecologically sustainable development, with the aim of managing Australia’s native forests to conserve biological diversity, heritage, and cultural values, and at the same time developing a dynamic, internationally competitive forest products industry based on native forests managed on a sustainable basis.
48 The Report identifies the CAR principles. First, comprehensiveness – the requirement that the reserve system samples the full range of forest communities across the landscape. Second, adequacy – a level of reservation that will ensure viability and integrity of populations, species and communities. Third, representativeness – ensuring that the diversity within each forest ecosystem is sampled within the reserve system.
49 The Report lists the criteria for CAR under three headings: biodiversity, old‑growth forest and wilderness. In summary the biodiversity criteria are:
(1) As a general criteria, 15% of the pre‑1750 distribution of each forest ecosystem should be protected with flexibility considerations applied according to regional circumstances.
(2) Where forest ecosystems are recognised as vulnerable, at least 60% of their remaining extent should be reserved.
(3) All remaining occurrences of rare and endangered ecosystems should be reserved or protected by other means as far as practicable.
(4) Reserved areas should be replicated across the geographic range of the forest ecosystem to decrease the likelihood that chance events such as wildfire or disease will cause the forest system to decline.
(5) The reserve system should seek to maximise the area of high quality habitat for all known elements of biodiversity wherever practicable.
(6) Reserves should be large enough to sustain the viability, quantity and integrity of populations.
(7) To ensure representativeness, the reserve system should, as far as possible, sample the full range of biological variation within each forest ecosystem, by sampling the range of environmental variation typical of its geographic range and sampling its range of successional stages.
(8) In fragmented landscapes, remnants that contribute to sampling the full range of biodiversity are vital parts of a forest reserve system.
50 The old‑growth forest criteria are:
(1) Where old‑growth forest is rare or depleted (generally less than 10% of the extant distribution) within a forest ecosystem, all viable examples should be protected, wherever possible.
(2) For other ecosystems, 60% of the old‑growth forest identified at the time of assessment would be protected, consistent with a flexible approach where appropriate.
51 The wilderness criteria are:
(1) 90%, or more if practicable, of the area of high quality wilderness that meet minimum area requirements should be protected in reserves.
(2) Potential wilderness areas will have a minimum National Wilderness Inventory (NWI) of 12.
(3) The appropriate size guidelines for areas encompassing forest wilderness is 8000 hectares.
(4) Ecological and management features such as topography, water catchment boundaries, roads and other transport routes may be useful when delineating boundaries.
52 Each of these sets of criteria uses expressions such as “as a general criteria”, “as far as practicable”, “flexibility” according to regions, “wherever possible” and “a flexible approach where appropriate”. Under the heading “Applying the CAR Reserve Criteria” and the subheading “Flexibility” the report says:
“Flexibility in the application of reserve criteria is needed in consideration of differing regional circumstances to ensure that the CAR reserve system delivers optimal nature conservation outcomes as well as acceptable social and economic outcomes. Therefore the criteria described in Section 6 are to be considered as guidelines rather than mandatory targets.
Flexibility is also necessary to allow for changes to the CAR reserve system as a result of changes in knowledge and changes in biota (such as through climate change).”
The RFA Act
53 One object of the RFA Act is to give effect to certain obligations of the Commonwealth under Regional Agreements. Three obligations of the Commonwealth are given effect. The first appears in s 6, under the heading “Certain Commonwealth Acts not to apply in relation to RFA wood or RFA forestry operations”:
“(1) RFA wood is not prescribed goods for the purposes of the Export Control Act 1982.
(2) An export control law does not apply to RFA wood unless it expressly refers to RFA wood. For this purpose, export control law means a provision of a law of the Commonwealth (other than the Export Control Act 1982) that prohibits or restricts exports, or has the effect of prohibiting or restricting exports.
(4) Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.”
54 The second obligation of the Commonwealth given effect appears in s 7. The termination of an RFA by the Commonwealth is of no effect unless it is done in accordance with the termination provisions of the RFA. The third obligation, given effect by s 8, relates to compensation payable by the Commonwealth. The Commonwealth is liable to pay any compensation that it is required to pay to a State in accordance with the compensation provisions of an RFA. The compensation may be recovered as a debt in a court of competent jurisdiction and is payable out of money appropriated by the Parliament.
55 The provisions of an RFA are not otherwise given effect by the RFA Act.
56 The RFA Act contains several important definitions. “RFA or Regional Forest Agreement” means
“an agreement that is in force between the Commonwealth and a State in respect of a region or regions, being an agreement that satisfies all the following conditions:
(a) the agreement was entered into having regard to assessments of the following matters that are relevant to the region or regions:
(i) environmental values, including old growth, wilderness, endangered species, national estate values and world heritage values;
(ii) indigenous heritage values;
(iii) economic values of forested areas and forest industries;
(iv) social values (including community needs);
(v) principles of ecologically sustainable management;
(b) the agreement provides for a comprehensive, adequate and representative reserve system;
(c) the agreement provides for the ecologically sustainable management and use of forested areas in the region or regions;
(d) the agreement is expressed to be for the purpose of providing long‑term stability of forests and forest industries;
(e) the agreement is expressed to be a Regional Forest Agreement.
57 The expression “RFA forestry operations” means, so far as presently relevant, forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Tasmania) that are conducted in relation to land in a region covered by the RFA.
58 The expression “RFA wood” means processed or unprocessed wood (including woodchips) sourced from a region covered by an RFA.
Does s 38 apply?
59 The respondent successfully contended before the primary judge that s 38 of the Act did not exempt the appellant from the requirement to obtain an approval before taking action covered by s 18 of the Act, because cl 68 of the RFA required the State to in fact protect the three species and CAR does not in fact protect them. The question is whether cl 68 does require the State to protect the species in this way. In our view it does not. Clause 68 does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection.
60 The verbiage of cl 68 supports this view. The State does not agree “to protect the priority species listed in Attachment 2 (Part A)”. It agrees to protect them “through the CAR Reserve System”. The RFA imposes various obligations on the State. The State agrees to establish CAR. Map 1 identifies the vast areas of Crown land and Reserves in Tasmania that are included in CAR. The State undertakes to manage the CAR areas identified in Attachment 6 on the basis there outlined and in accordance with the objectives in Attachment 7. It agrees to proclaim any new reserves of a category specified in Attachment 7, which category is provided for by existing legislation: cl 24(b). It agrees to introduce into Parliament the legislation referred to in cl 24(c). It agrees to postpone any harvesting in certain land: cl 54. It agrees to facilitate the voluntary participation by private landowners in CAR: cl 59. It agrees to ensure that all proposed mining activities in areas covered by CAR will be subject to environmental assessment as required by State legislation: cl 81. It agrees to use the financial assistance provided by the Commonwealth for the protection of conservation values on private land in support of CAR for that purpose: cl 101(iv) and cl 102(a)(iv). The words of cl 68 – “through the CAR Reserve System” – are directed to the State’s participation in the establishment and maintenance of CAR in the manner described in the RFA.
61 The Explanatory Memorandum accompanying the Bill that became the Act describes the object of Subdivision B of Division 4 as follows:
“The object of this subdivision recognises that in each RFA region a comprehensive assessment is being, or has been, undertaken to address the environmental, economic and social impacts of forestry operations. In particular, environmental assessments are being conducted in accordance with the Environment Protection (Impact of Proposals) Act 1974. In each region, interim arrangements for the protection and management of forests are in place pending finalisation of an RFA. The objectives of the RFA scheme as a whole include the establishment of a comprehensive, adequate and representative reserve system and the implementation of ecologically sustainable forest management. These objectives are being pursued in relation to each region. The objects of this will be met through the RFA process for each region and, accordingly, the Act does not apply to forestry operations in RFA regions. (Emphasis added)
In our view the emphasised passage indicates that the Act does not apply to forestry operations in RFA regions, and the way in which the objects of the Act will be met in relation to those operations is to be ascertained by reference to the relevant RFA.
62 As indicated at , s 6(4) of the RFA Act is in the same terms as s 38 of the Act. The Revised Explanatory Memorandum accompanying the Bill that became the RFA Act states in relation to clause 6(4):
“This clause provides that forestry operations in regions subject to RFAs are excluded from certain Commonwealth legislation. This is because the environmental and heritage values of those regions have been comprehensively assessed under relevant legislation during the RFA process and the RFAs themselves contain an agreed framework on the ecologically sustainable development of these forest regions over the next 20 years.”
Again, the message is that the Act (ie the Environmental Protection and Biodiversity Conservation Act) does not apply to forestry operations in RFA regions, and that the regime applicable in those regions is found in the RFAs themselves.
63 The fact that the State’s obligations under Part 2 of the RFA are expressed to be unenforceable points against the view that by cl 68 the State warrants that CAR will in fact protect the species. It follows that satisfactory performance of the State’s obligations can only be measured by the parties, the sanction for inadequate performance by the State (in the Commonwealth’s opinion) being termination of the agreement under cl 102.
64 The background to the RFA, constituted by the JANIS report and the RFA’s recitals, confirms the view that the State was not by cl 68 giving the warranty referred to at . The JANIS report and the RFA reflect a compromise between employment and forest industry concerns on the one hand and the environment on the other. Neither concern could be entirely met. There were some limits imposed on forest operations, but operations would continue, and to that extent there was no guarantee that the environment, including the species, would not suffer as a result. Why in those circumstances would the State give a warranty that it could see was unsustainable?
65 The parties agreement in cl 50 of the RFA that CAR, as established in accordance with the RFA, meets the JANIS Reserve Criteria and “sufficiently” protects CAR values, and provides “adequate” protection for wild rivers, tells against reading cl 68 as an absolute guarantee that CAR will protect the species.
66 The fact that the RFA is a Tasmania‑wide agreement supports the view that by cl 68 the State was agreeing to protect the species by doing its part in the establishment of CAR across the whole of Tasmania.
67 Finally, the fact that CAR did not come into existence uno flatu upon the making of the RFA, but was a developing process over time, also argues against the mere making of the agreement bringing into being a guarantee of the species’ protection.
68 For the foregoing reasons we are of the view that the only basis propounded in ground 8 in the amended application, namely that s 38 does not exempt the appellant from Part 3 of the Act because in breach of cl 68 of the RFA the State has not in fact protected the species in Wielangta, fails. The second limb of cl 68 should be construed in the same manner as the first.
69 As appears below at  to , the RFA was amended after judgment and before the appeal. Both parties relied on the RFA in its amended form. As appears below at , cl 68 has been amended so that it more clearly says what we think it means in its original form.
NOTICE OF CONTENTION
70 By his notice of contention the respondent claims that the primary judge should have decided that the RFA was not a “regional forest agreement” within the meaning given to that term by s 4 of the RFA Act. As we have said, the description of the RFA at  to  is of the RFA in the form it took at the inception of the proceeding. It was amended after the primary judge’s decision.
71 The definition of “RFA or Regional Forest Agreement” is set out at . To be an RFA an agreement must satisfy all five conditions in the definition. Two are said not to be satisfied. They are that
“(b) the agreement provides for a comprehensive, adequate and representative reserve system;
(c) the agreement provides for the ecologically sustainable management and use of forested areas in the region or regions.”
Ground 7 in the Application contends that the words “provides for” in pars (b) and (c) of the definition require an RFA to establish an “enforceable regime” that meets the two conditions. Because the RFA does not do this, it is not in law an RFA. The primary judge rejected this contention, in our view correctly.
72 Paragraphs (b) and (c) of the definition of RFA require that the agreement “provide for” the two matters with which they deal. Paragraph (b) does not require that the agreement provide a comprehensive, adequate and representative reserve system. Nor does par (c) require that it provide ecologically sustainable management and use of forested areas in the region or regions. The distinction between “provide”, as in furnish or supply, and “provide for”, as in make arrangements for, is well‑established. In Stocks and Parkes Investments Pty Ltd v The Minister  1 NSWLR 932 at 940 the Full Court of the Supreme Court of New South Wales said:
“There is a great difference between the verb ‘provide’ and the verb ‘provide for’ or ‘make provision for’ and it is this difference which gives a clue to the construction of cl 16. The difference between ‘provide’ and ‘provide for’ is that the former means to give or to make available in fact, while the latter looks to the planning stage alone. You provide for a school site by ‘looking forward’ and planning accordingly. You provide a school site by actually making it available.”
73 The primary judge accepted the appellant’s submission, based on Stocks and Parkes, that all that was required was that the RFA establish a structure or policy framework which facilitates or enables the creation or maintenance of a CAR Reserve System and the implementation of ESFM practices. We agree with his Honour. The fact that the RFA is an agreement between governments reinforces that conclusion.
74 We agree with the primary judge that the RFA plans for or makes arrangements for a CAR Reserve System, and thus provides for it. We have described the essential features of the RFA at  to . Amongst other things the RFA
· commits the parties to the establishment of CAR by reference to the JANIS Reserve Criteria: cl 48
· identifies the JANIS Report and describes the JANIS Reserve Criteria: cl 2
· describes the constituent parts of CAR (the reserves on public land and the private land described in an attachment): cl 49
· records the parties’ agreement that CAR, as established in accordance with the agreement, meets the JANIS Reserve Criteria and sufficiently protects CAR values: cl 50
· records the parties’ agreement to establish CAR on the public land described in an attachment: cl 51
· records an agreement to protect priority species through CAR: cl 68.
75 We also agree with the primary judge that the RFA plans for or makes arrangements for ecologically sustainable management and use of forested areas in Tasmania. Among other things the RFA
· recites the parties’ agreement to provide for the ecologically sustainable management and use of forests in Tasmania
· defines ESFM as forest management and use in accordance with the specific objectives and policies for ecologically sustainable development as detailed in NFPS
· confirms the parties’ commitment to fulfilling the goals, objectives and implementation of NFPS by developing and implementing ecologically sustainable forest management and use: cl 19
· records the parties’ agreement that CAR meets the JANIS Reserve Criteria
· records the parties’ agreement that ESFM is an objective which requires a long term commitment to continuous improvement: cl 62
· notes that the key elements for achieving ESFM include the establishment of CAR: cl 62
· records the State’s commitment to the ongoing development, implementation and achievement of ESFM through the development and implementation of its Forest Management Systems: cl 63
· records the State’s agreement that in providing for ESFM, its Forest Management Systems will be amended to reflect the undertakings of the agreement and in particular those specified in an attachment: cl 64.
76 In relation to both conditions (b) and (c) in the definition, we observe that it is difficult to see how an agreement could ‘provide’, as in furnish or supply, a comprehensive, adequate and representative reserve system or the ecologically sustainable management and use of forested areas.
77 As we understood the respondent’s argument, the challenge to the agreement as an RFA because Part 2 was not enforceable by the Commonwealth was based solely on the words “provides for”. We did not understand the argument to be that any agreement between the Commonwealth and a State must be enforceable, otherwise it is not an agreement. Such a submission would have to be rejected, as the judgments of Dixon CJ and Kitto and Windeyer JJ in South Australia v The Commonwealth (1962) 108 CLR 130 at 140‑141, 149 and 153‑155 respectively make clear.
78 We have dealt in  to  with the principal argument that was put to us, namely that the RFA is a regional forest agreement only if it satisfies the five conditions in the definition. However, in our view the RFA is a regional forest agreement for a more basic reason: the RFA Act says it is a regional forest agreement. This issue was raised during argument, but did not attract the parties’ attention to the same extent as the principal contention.
79 Section 6(4) of the RFA Act provides that
“Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.”
The definition of RFA is set out at . The definition of “RFA forestry operation” refers to forestry operations as defined in four agreements, each made between the Commonwealth and one of four States. The relevant part of the definition is
“forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Tasmania) that are conducted in relation to land in a region covered by the RFA (being land where those operations are not prohibited by the RFA).”
In our view that definition identifies an agreement that Parliament treats as an RFA within the definition of regional forest agreement. Having regard to the adjacent definitions of “RFA or Regional Forest Agreement” and “RFA forestry operations” in s 4 of the RFA Act, it not a sensible reading of the provisions to treat Parliament as saying that an existing agreement, in the form it took on 1 September 2001, and which it thrice describes as an RFA, is in truth something that may or may not be one.
80 By an agreement made on 23 February 2007 the RFA was amended as follows: Clause 68 was replaced by:
“The parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities.”
81 Clause 70 has also been replaced. We did not have occasion to set it out as part of our examination of the original RFA. In that form it read:
“the Parties agree that management prescriptions or actions identified in jointly prepared and agreed Recovery Plans or Threat Abatement Plans will be implemented as a matter of priority.”
As a result of the amendment it reads:
“The Parties agree that where a Recovery Plan for a forest‑related species in Tasmania or a Threat Abatement Plan concerning a Priority Species (Attachment 2 Part A) is in force, any recommended actions in the Recovery Plan or the Threat Abatement Plan that are within the jurisdiction of the Parties will be carried out in accordance with the timelines specified in the relevant Plan. If an action has not been carried out in accordance with the timelines in the relevant Plan, it will be carried out as soon as possible afterwards.”
82 Clause 96 originally read:
“The State agrees that any changes to the Priority Species in Attachment 2 including new or altered management prescriptions developed over the term of the Agreement will:
(a) be adequate to maintain the species identified;
(b) have a sound scientific basis;
(c) be endorsed by the Tasmanian Threatened Species Scientific Advisory Committee where relevant; and
(d) take note of public comment.”
Paragraphs (b), (c) and (d) have not changed, but the introductory words and par (a) now read:
“The State agrees that any new or altered management prescriptions that are developed over the term of the Agreement for the Priority Species in Attachment 2, as amended from time to time, will
(a) provide for the maintenance of the relevant species ….”
83 Clause 97 in its original form was as follows:
“A Management Prescriptions Database and a Response to Disturbance Database have been prepared as part of the comprehensive regional assessment for species identified as priority for protection by reservation and/or management prescription. The State agrees to maintain these databases and to update them as necessary and also confirms that they will be used as a basis for updating relevant State management documents including the Threatened Species Database, Listing Statements, the Management Decision Classification System, the Forest Botany Manuals and the Threatened Fauna Manual. Updated hard copies of the database contents will be made available periodically for public comment.”
Clause 97 now reads:
“The State agrees to maintain and to update as necessary a database or databases of management prescriptions and responses to disturbance related to threatened fauna and flora and confirms that it intends to use the database or databases as a basis for updating relevant State management documents and as a basis for the management of threatened species. Updated database contents will be periodically made available in a publicly accessible form for public comment.”
84 There are some consequential amendments which it is unnecessary to set out.
Amended notice of contention
85 In ground 3 of his amended notice of contention the respondent contends that these changes
“(a) … materially reduce and/or remove the obligations imposed by the RFA on the State of Tasmania in relation to the protection of the Priority Species listed in Attachment 2 to the RFA, including in respect of the maintenance and development of management prescriptions for the protection of those species; and
(b) by reason of those changes, the Tasmanian RFA is no longer an agreement that satisfies the conditions imposed by s 4 of the RFA Act; namely
(1) that it was entered into having regard to assessments of the environmental values relevant to Tasmania in respect of endangered species and principles of ecologically sustainable management; and/or
(2) which provides for the ecologically sustainable management and use of forested areas in Tasmania.”
86 It is not clear whether the Court was being asked for leave under Order 52 rule 36 of the Rules, which enables fresh evidence to be received in certain circumstances, to rely on the amendments or whether the respondent regarded himself as entitled to rely on events occurring after the trial and before the appeal because of the nature of an appeal under s 27 of the Federal Court of Australia Act 1976 (Cth). If leave was required, the appellant did not submit that we should exercise our discretion against receiving the amendments. That was doubtless because it sought to rely on the amendments for its own purposes. See .
87 Applications to rely on fresh or further evidence on appeal usually involve facts that were in existence at first instance but were not then put into evidence. Hence the conventional inquiry as to whether reasonable diligence was exercised to procure the evidence for the trial and whether it is reasonably clear that if the evidence had been available at trial and had been adduced a different result would have been produced. See, for example, Orr v Holmes (1948) 76 CLR 632 at 635, 640.
88 The present case involves facts that have come into existence after the judgment appealed from. There are cases which permit post‑judgment facts to be admitted on appeal. In Murphy v Stone‑Wallwork (Charlton) Ltd  1 WLR 1023 damages for personal injury had been assessed at trial on the basis that the plaintiff would continue to be employed by the defendant. On appeal, the Court of Appeal likewise assumed that the defendant would not dismiss the plaintiff, and increased his damages. Later the plaintiff was dismissed. He appealed to the House of Lords seeking a further increase in his damages, and applied for leave to adduce evidence about his dismissal. Leave was granted. Their Lordships held that although the general principle is that damages are assessed at the trial once and for all, though the plaintiff might finally suffer greater loss than was anticipated, an appellate court has power, in exceptional cases, to hear evidence of something which has altered the effect of an order of the court below since it was made, if the particular exigencies of justice clearly outweigh the general undesirability of doing so. Their Lordships noted that the Rules of Court gave the Court of Appeal a general discretion to admit evidence of matters that have happened since the date of the judgment. Although the House of Lords had no comparable rule, their Lordships said they were equally entitled to hear such evidence, but the cases in which that would be done would need to be exceptional.
89 In Petreski v Cargill (1987) 18 FCR 68 the Full Court said that Order 52 rule 36 applies only to evidence of matters occurring before judgment which, for some reason, was not led at trial, and does not apply to evidence of matters occurring after judgment. However this conclusion may have been influenced by the Court’s understanding of the nature of an appeal under s 27 of the Federal Court of Australia Act, namely an appeal stricto sensu and not by way of rehearing. That approach has since been discarded.
Nature of a s 27 appeal
90 On an appeal under s 27 the Court must decide the rights of the parties upon the facts and in accordance with the law as they exist at the time of hearing the appeal: CDJ v VAJ (1998) 197 CLR 172 at ; Allesch v Maunz (2000) 203 CLR 172 at . Both these cases rely on the reasons of Dixon J in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107. See also Cubillo v Commonwealth (2001) 112 FCR 455 at . The position would thus seem to be that the nature of the appeal entitles a party to lead further evidence, subject of course to relevance. It is not necessary to decide whether the power in the Rules to permit further evidence to be called applies only to evidence that was in existence at first instance but was not adduced, as the Full Court said in Petreski v Cargill, or applies also to events occurring after the initial hearing. Murphy is inapplicable to an appeal in this Court, because of the obligation on the Court to deal with the appeal on the facts as they exist at the time of the appeal. Thus neither party required leave to rely on the amendments to the RFA. The Court is obliged to take them into account. Conformably with this, during the hearing we marked the amending agreement as an exhibit on the appeal, and said we would make such use of it as was appropriate in our disposition of the appeal.
91 If on the hearing of the appeal the Court is of the view that because of facts that were not in existence when the matter was before the primary judge, the orders below cannot stand, error has been shown, though it is not “blameworthy” error. An order that was proper when made must be set aside if in the light of the further evidence on the rehearing it is an order that should not be made. It may sound curious to use the word “error” in relation to an order that was not wrong when made. However, that is how the High Court described the position in Allesch v Maunz (2000) 203 CLR 172 at :
“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance: Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 207.”
Effect of amendments
92 The amendment to cl 68 of the RFA, insofar as it relates to CAR, simply puts in clearer language what we regard as the true meaning of the original clause. There are different ways in which this clarification could have been achieved. The way we have put it is to say that CAR affords the protection to the Priority Species. The drafting of the amendment adopts the device used elsewhere in the RFA, for example in cl 50, of having the parties agree that it affords that protection. The effect is the same. Accordingly the RFA continues to “provide for” the ecologically sustainable management and use of the forested areas in Tasmania.
93 Clause 70 is simply a timing change. Whereas in its original form the parties agreed that actions identified in the two plans would be implemented as a matter of priority, those actions will now be carried out in accordance with the timelines specified in the relevant Plan or as soon as possible thereafter. The amended version is thus less prescriptive than the original, but the change does not rob the RFA as amended of the character in par (c) of the definition of RFA. The changes to cl 96 are cosmetic only and do not result in the agreement ceasing to satisfy par (c). Clause 97 has been simplified. Its substance has not changed. The amended clause does not result in the agreement ceasing to satisfy par (c). All the amendments taken together do not result in the agreement ceasing to satisfy par (c).
94 The RFA was entered into in 1997. The respondent does not contend that it did not then satisfy condition (a)(i) and (v). The RFA has a term of 20 years: cl 7. Its duration may be extended: cl 8. It can be amended by agreement: cl 9. The RFA has been amended from time to time. These amendments did not result in the agreement having been “entered into” afresh on each occasion. Accordingly ground 3(b)(1) of the amended notice has no substance.
95 In the course of argument there was a suggestion from the bench, which the respondent appeared to embrace but did not develop, that the replacement of the original cl 68 may deprive the RFA of the quality of an “agreement” required by the definition of regional forest agreement. The suggestion was that whereas by the original clause the State “agreed to protect” the species through CAR, by the new clause the parties agreed that CAR protected rare and threatened species. It was said that the first was promissory and the second was not. That may be accepted, but it does not rob the RFA of its character as an agreement for the purposes of the definition. The suggested vice in the amended cl 68 lies in its lack of a promissory quality. However, that is a feature of several clauses in the RFA in its original form. Thus in cl 50 the parties agree that CAR meets the JANIS Reserve Criteria, sufficiently protects CAR values and provides adequate protection for wild rivers. In cl 61 they agree that the policy framework in cl 60, together with CAR and other improvements in the Forest Management Systems, meet the requirements of the NFPS for the protection of regional conservation values and catchment management objectives. In cl 25, 27, 28 and 30 the Commonwealth “confirms” that it has fulfilled its duties under various statutes and has done other things. The State does likewise in cl 29 and 31.
96 The structure of the new cl 68 is the same as that of cl 50 and 61 of the original RFA.
97 As indicated at , the legislature has treated the RFA as a regional forest agreement as defined. This it has done notwithstanding the presence of non‑promissory clauses such as those described at . It is accordingly inappropriate in a largely unenforceable agreement to treat the word “agreement” in the definition of RFA as importing a requirement that its provisions must be promissory in the sense used in contract cases such as Lowe v Lombank Ltd  1 WLR 196 at 204.
98 In our view the clarification effected by the new cl 68, which would have been unnecessary but for the erroneous decision below, does not rob the RFA of its character of a regional forest agreement as defined.
99 The conclusion we have reached on s 38 of the Act disposes of the appeal and makes it unnecessary to deal with other issues that were canvassed before us. We will however deal with one of them. As appears at , the appellant contended that it is a government body within s 524(1)(e) because it is “an agency of a State”. It decided to grant Gunns Limited the Forest Practices Plans for coupes 17E and 19D. These plans were “governmental authorisations” for the purposes of s 524(2). Thus the appellant’s activities were not actions for the purposes of s 18(3). The primary judge rejected this contention. His Honour drew a distinction between the grant of the authorisation to Gunns Limited to carry out forestry operations and the carrying out of those operations. Only the former was protected by s 524(2) as a “governmental authorisation”, and the respondent did not seek to impugn the grant. The primary judge appears to have accepted that the grant was a governmental authorisation.
100 Forest practices plans are creatures of the Forest Practices Act 1985 (Tas). Under s 17(4) of that Act the owner of land must not carry out forestry activities on the land unless a certified forest practices plan exists in respect of the land when the activities are being carried out. Section 18 provides for the preparation of a forest practices plan and its submission to the Forest Practices Authority for certification. Section 19 empowers the Authority to certify, refuse to certify or amend a plan. A certified plan authorises forest practices and any operations associated with those practices to be carried out on the land specified in the plan in accordance with the provisions of the plan: s 20. The Authority is incorporated by s 4AA of the Forest Practices Act, and is controlled by a board of directors who are responsible for the exercise and performance of the powers and functions of the Authority under the Act: s 4AB.
101 The appellant is the owner of coupes 17E and 19D. It obtained certification of the forest practices plans. Assuming that a forest practices plan is a “governmental authorisation (however described)”, it is granted by the Authority and not by the appellant. Accordingly the appellant cannot rely on the certified plans as an authorisation by it for the purposes of s 524.
102 The parties and the primary judge appear to have assumed that once it was decided that the appellant was “an agency of a State” within the definition of “government body” in s 524(1), anything it permitted someone else to do was a governmental authorisation. The words of s 524(2) are “a decision by a government body to grant a governmental authorisation” and not “a decision by a government body to grant an authorisation”. It seems therefore that the government body’s authorisation must be of a governmental nature in order to be a governmental authorisation. That is to say, it must be something that only a government can do. It may be that the grant of the right to enter upon Crown land to conduct forestry activities is of a governmental nature. The significance of the word “governmental” was raised by the bench, but the parties did not join issue on it, and accordingly we do not decide the point. Our present concern is to draw attention to what seems to us to be a necessary step before s 524(2) can be relied on, namely that the authorisation granted by a government body be of a governmental nature.
Utility of agreed issues
103 Our conclusion on s 38 of the Act makes it unnecessary to examine the grounds of appeal disputing the primary judge’s findings about the degree of protection provided by CAR to the three species. This aspect of the case at first instance occupied most of the 33 sitting days, together with views. In the events that have happened, a great deal of time and much expense has been devoted to investigating matters that have turned out not be determinative of any relevant issues. These include issues 1, 3 to 7 and 9(b). If there was any issue at all that was appropriate for preliminary determination, it was that turning on s 38. Instead many far‑ranging issues were, in our view, wastefully explored.
104 Courts have frequently stressed the caution that must be taken in deciding whether to determine separate questions and issues lest this course leads to increased cost and delay. No caution was on display in this case.
105 The appeal must be allowed and the notice of contention dismissed. The respondent must pay the costs of the appeal and notice. In view of the parties’ improvident agreement about issues (see ), we are of the view that they should bear their own costs of the proceedings at first instance.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Finkelstein and Dowsett.
Dated: 30 November 2007
Counsel for the Appellant:
N O'Bryan QC and
Solicitor for the Appellant:
Counsel for the Respondent:
D Mortimer SC and
Solicitors for the Respondent:
Fitzgerald and Brown Lawyers
Counsel for the First Intervener:
S Gageler SC and A Broadfoot
Solicitor for the First Intervener:
Australian Government Solicitor
Counsel for the Second Intervener:
T Ellis and L Taylor
Solicitor for the Second Intervener:
Director of Public Prosecutions
Date of Hearing:
13‑17 August 2007
Date of Judgment:
30 November 2007