Federal Court of Australia

Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5

ORDERS

THE COURT ORDERS THAT:

1.    The question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) for hearing and determination by the Full Court being:

Is the Tasmanian RFA (as referred to in the Applicant’s Amended Concise Statement at [7]) an “RFA” or “Regional Forest Agreement” for the purposes of the Regional Forests Agreement Act 2002 (Cth) and s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)?

be answered “Yes”.

2.    The application for declaratory relief in terms of paragraph 1 of the applicant’s amended originating application dated 28 September 2020 be dismissed.

3.    Unless agreement is reached between the parties, by 4.00 pm on 17 February 2021 the parties are to file and serve submissions, not exceeding 2 pages in length, on the question of costs of the hearing and determination of the separate question, with the issue of costs to be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This matter arises from the applicant’s concern for the potential fate of the Swift Parrot (Lathamus disclor), a “listed threatened species”, which has been in the “critically endangered” category since 5 May 2016. The applicant alleges that certain forestry operations, encompassing “Concluded”, “Current”, and “Future” operations, undertaken by the third respondent, Forestry Tasmania trading as Sustainable Timber Tasmania (STT), have had, or will have, a significant impact on the Swift Parrot and that such operations have contravened, or will contravene, ss 18(2)(a) and (b) and ss 18A(1) and (2) of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The applicant seeks final and interim injunctions under s 475(2) of the EPBC Act restraining STT from carrying out its Current and Future operations unless and until it obtains environmental approvals for those operations under Part 9 of the EPBC Act. It also seeks orders under s 475(3) of the EPBC Act to repair or mitigate the damage to the environment caused by the Concluded and Current operations.

2    The applicant’s allegations against STT are premised on its contention that STT was required by Part 9 of the EPBC Act to obtain the necessary approvals to conduct the forestry operations because the forestry operations were not undertaken in accordance with a Regional Forest Agreement (RFA) as defined in s 4 of the Regional Forest Agreements Act 2002 (Cth) (RFA Act). That contention is, in turn, based on the applicant’s contention that the Tasmanian Regional Forestry Agreement (Tasmanian RFA), being an agreement entered into between Tasmania and the Commonwealth in 1997, and subsequently varied in 2001, 2007 and 2017, is not an RFA within the meaning of the RFA Act or s 38 of the EPBC Act. It is said, therefore, that STT remained obliged to obtain the necessary approvals.

3    A separate question was reserved for determination by the Full Court, together with the claim for declaratory relief, being:

Is the Tasmanian RFA (as referred to in the Applicant’s Amended Concise Statement at [7]) an “RFA” or “Regional Forest Agreement” for the purposes of the [RFA Act] and s 38(1) of the [EPBC Act]?

The Tasmanian RFA, as referred to in the Applicant’s Amended Concise Statement, is an agreement between Tasmania and the Commonwealth “first entered into in 1997, and … varied in 2001, 2007 and 2017”.

4    In answering this question, the applicant invites this Court to hold, if necessary, that the decision of the Full Federal Court, exercising appellate jurisdiction, in Forestry Tasmania v Brown [2007] FCAFC 186; (2007) 167 FCR 34 is plainly wrong. Although this Court is constituted by three judges, it is nevertheless exercising original, not appellate, jurisdiction. Neither the applicant, nor any one of the respondents, contended that the approach to determining whether or not a decision of the Full Court exercising appellate jurisdiction was plainly wrong would differ when it is being considered by a Full Court exercising original jurisdiction. The point was not raised in Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2015) 230 FCR 61, where a Full Court exercising original jurisdiction was invited to overturn the decision of the Full Court exercising appellate jurisdiction in Minister for Immigration and Multicultural Affairs v Ball [2004] FCAFC 91; (2004) 138 FCR 450.

5    For the reasons that follow, the separate question should be answered affirmatively and the application for declaratory relief should be dismissed.

The Tasmanian RFA

6    The agreed statement of facts noted in the Court’s order of 19 October 2020 (Exhibit 1), records, inter alia, that:

    the Tasmanian RFA is an agreement made on 8 November 1997 between the Commonwealth and the State of Tasmania;

    the Tasmanian RFA referred (among other things) to the following:

(a)    the “National Forest Policy Statement 1992 endorsed by the Commonwealth and State and Territory Governments” (NFPS);

(b)    the “Scoping Agreement for a Tasmanian Regional Forest Agreement between the Commonwealth of Australia and the State of Tasmania signed on 16 January 1996” (RFA Scoping Agreement);

(c)    the “Comprehensive Regional Assessment process carried out by the Commonwealth and the State pursuant to Attachment 1 of the RFA scoping agreement”;

(d)    the report published by the Joint ANZECC/MCFFA National Forests Policy Statement Implementation Sub-committee in June 1997 titled “Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative Reserve System for Forests in Australia” (JANIS report);

(e)    “Map 1”;

    the Tasmanian RFA defined “Forest Management Systems” as “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: Assessment of Ecologically Sustainable Forest Management Systems and Processes: Independent Expert Advisory Group – Preliminary Report published by the Tasmanian Public Land Use Commission November 1996”;

    on 19 July 2001, the Commonwealth and Tasmania agreed to vary the Tasmanian RFA;

    on 23 February 2007, the Commonwealth and Tasmania agreed to vary the Tasmanian RFA;

    on 18 August 2017, the Commonwealth and Tasmania agreed to vary the Tasmanian RFA;

    following the 18 August 2017 variation, the Tasmanian RFA defines “Forest Management Systems” as “the State’s suite of legislation, policies, codes, plans and management practices summarised in Tasmania’s Forest Management System: An Overview (2017) as amended from time to time”.

7    The relevant provisions of the Tasmanian RFA as varied in 2001, and prior to the 2007 and 2017 variations, were described by the Full Court in Forestry Tasmania v Brown at [29]-[44].

8    The current iteration of the RFA applies to the Tasmanian Region, which is defined as the whole of the State (Recital B). Part 1 comprises cll 1-17. 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. Clause 7 provides that the RFA “commenced on 8 November 1997, and subject to its terms will remain in force until 2037, or until a later date pursuant to clause 8”. Clauses 10-15 deal with dispute resolution.

9    Part 2 comprises cll 18-91. Clause 18 provides that the Part is not intended to create legally binding relations, and the provisions of Part 1 insofar as they relate to Part 2 are also not binding.

10    Clauses 30-32 deal with Listed Species and Communities. By cl 30, the Parties will continue to consult on the priorities for forest associated Listed Species and Communities, Forest Communities, and Threatening Processes. By cl 31, Tasmania agrees that any new or altered management prescriptions that are developed over the term of the Agreement for forest associated Listed Species and Communities will, inter alia, “provide for the maintenance of the relevant species”.

11    Part 3 of the Tasmanian RFA provides that “it is the intention of the Parties that this Part is to create legally enforceable rights and obligations”. Of significance are the terms of cl 95. In broad terms, pursuant to that clause, the Commonwealth agrees to pay compensation to the State if, to protect the environment and heritage values in native forests and in connection therewith, the protection, inter alia of Comprehensive, Adequate and Representative (CAR) Values or any Priority Species:

(a)    the Commonwealth takes action which is inconsistent with the RFA; and

(b)    a foreseeable or probable consequence of such action is to prevent or substantially limit certain activities on land not included in the CAR Reserve System that, immediately prior to the proposed Commonwealth Action, were intended to be or had already been commenced.

12    This clause is given statutory force by virtue of s 8 of the RFA Act, consistent with the objects of the RFA Act in s 3.

13    Also within Part 3 of the Tasmanian RFA, cl 102 makes provision for the circumstances for termination of the RFA by either the Commonwealth or the State. So far as the obligations on the Commonwealth are concerned, those provisions are given statutory force by s 7 of the RFA Act, again consistent with the objects of the RFA Act in s 3.

14    Clause 100 makes provision for the Commonwealth to provide financial assistance to the State for actions to implement the “Program to protect conservation values on private land in support of the CAR Reserve System” and cl 101 provides the schedule of payments to be made, the latest being due in the years 1999-2000. That obligation had expired by the date of the enactment of the RFA Act in 2002 and that is presumably the reason why no mention of this specific obligation on the part of the Commonwealth was made in the RFA Act.

15    Other obligations contained within Part 3, and so which are intended to create legally enforceable rights and obligations, are imposed on the State only and relate to reviews of sustainable high quality sawlog supply levels (cll 98-98C) and undertaking a review of pricing and allocation policies for commercial government owned forestry operations (cl 99).

16    The RFA Act does not give statutory force to any of the obligations imposed on a State by an RFA.

17    The Full Court in Forestry Tasmania v Brown observed, at [44], that the essential features of the Tasmanian RFA, as it stood following the 2001 variations, were:

(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 [as they were then referred to in the RFA].

Those observations remain apposite, except to the extent that they relate to cl 68, which has been deleted, and to the extent that the definition of “Forest Management Systems” has been amended as referred to in [6] above.

The RFA Act

18    The object of the RFA Act is not to give effect generally to the provisions of an RFA. Rather, the objects of the RFA Act, as stated in s 3, are:

(a)    to give effect to certain obligations of the Commonwealth under Regional Forest Agreements; (emphasis added)

(b)    to give effect to certain aspects of the National Forest Policy Statement;

(c)    to provide for the existence of the Forest and Wood Products Council.

19    The obligations of the Commonwealth are threefold:

(1)    to remove “RFA wood or RFA forestry operations” from the ambit of certain Commonwealth Acts (s 6). In particular, s 6(4) provides that Part 3 of the EPBC Act does not apply to an RFA forestry operation that is undertaken in accordance with an RFA;

(2)    to require the Commonwealth to terminate an RFA only in accordance with the termination provisions of the RFA (s 7);

(3)    to require the Commonwealth to pay compensation that it is required to pay to a State in accordance with the compensation provisions of an RFA (s 8).

20    Section 4 defines an RFA or Regional Forest Agreement to mean:

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.

21    Section 4 also defines an RFA forestry operation, relevantly, to mean:

(a)     forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and New South Wales) 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); or

(b)     forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Victoria) 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); or

(c)     harvesting and regeneration operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Western Australia) 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); or

(d)     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). (emphasis added)

22    Additionally, the RFA Act provides for the publication of RFAs once they have been entered into, or have ceased to be in force (s 9), and for the tabling of RFAs, amendments thereto, and annual and review reports (s 10). These provisions contemplate that RFAs, additional to the five RFAs specifically mentioned in s 4, will be entered into between the Commonwealth and a State.

The EPBC Act

23    The objects of the EPBC Act are stated in s 3(1):

The objects of this Act are:

(a)    to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

(b)    to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and

(c)    to promote the conservation of biodiversity; and

(ca)    to provide for the protection and conservation of heritage; and

(d)    to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and

(e)    to assist in the co-operative implementation of Australia's international environmental responsibilities; and

(f)    to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity; and

(g)    to promote the use of indigenous peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.

24    Chapter 2 of the EPBC Act sets out provisions with respect to the protection of the environment.

25    Specifically, Part 3 within Chapter 2 prescribes “Requirements for Environmental Approvals”. Within Part 3 Div 1, Subdiv C is titled “Listed threatened species and communities”. Within this subdivision, s 18 provides, inter alia, that a person must not take an action that “has or will have a significant impact on a listed threatened species” and s 18A provides that a person commits an offence if an action is taken and “the action results or will result in a significant impact on: (i) a species; … and (c) the species is a listed threatened species…”.

26    Section 19 provides, in the following terms, that “certain actions relating to listed threatened species” are not prohibited:

(1)     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.

 (2)     …

 (3)     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 that subsection; or

(b)     there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

…

27    Part 4 of Chapter 2 provides for “Cases in which environmental approvals are not needed”. These include actions covered by bilateral agreements (Division 1), actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes (Division 2), actions covered by Ministerial declarations and bioregional plans (Division 3), actions covered by conservation agreements (Division 3A), and forestry operations in certain regions (Division 4). It is in Division 4 that s 38 appears. It 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.

28    Section 38(1) is in essentially the same terms as s 6(4) of the RFA Act.

The applicant’s case

29    The applicant submits that there are two reasons why the Tasmanian RFA is not an “RFA” or “Regional Forest Agreement” for the purposes of the RFA Act and s 38(1) of the EPBC Act.

30    First, the applicant contends that for an agreement to constitute an RFA for the purposes of the RFA Act, it must impose legally enforceable obligations, including in relation to a CAR Reserve System and in relation to the ecologically sustainable management and use of forested areas in the region (ESFM). It contends that the Tasmanian RFA does not meet the definition of an RFA because the provisions that relate to the CAR Reserve System and ESFM are contained in Part 2 of the agreement, which is expressed not to intend to create legally binding relations (cl 18).

31    There is no dispute about the latter aspect of the applicant’s contentions: it is plain from the terms of the Tasmanian RFA that it does not impose legally enforceable obligations in relation to these matters. In particular, cl 18 states that Part 2 of the Tasmanian RFA, which contains the relevant terms, “is not intended to create legally binding relations”.

32    Secondly, the applicant contends that for an agreement to meet the definition of an RFA for the purposes of the RFA Act, matters that are material to the requirements of the CAR Reserve System and ESFM cannot be subject to unilateral amendment from time to time at the discretion of one of the parties to the RFA. The applicant contends that the Tasmanian RFA does not satisfy that requirement because it is open to Tasmania to vary its legislation, policies, codes and practices from time to time. Further, the applicant contends that the Tasmanian RFA is inconsistent with s 46AA(1) and (2) of the Acts Interpretation Act 1901 (Cth).

33    The issue before the Full Court is one of statutory construction. The applicable principles, which require consideration of the text, context and purpose, are well established: see, in particular, s 15AA of the Acts Interpretation Act 1901 (Cth); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [25]-[26]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]. The issue turns on the construction of the relevant statutory provisions (principally, the definition of “RFA” in s 4 of the RFA Act) as distinct from construction of the Tasmanian RFA.

34    We deal with each of the applicant’s contentions in turn.

A requirement of legal enforceability?

35    In relation to the applicant’s first contention, in our view it is appropriate to consider this contention afresh, rather than commencing with the judgment of the Full Court of this Court in Forestry Tasmania v Brown. This is because the applicant’s first contention is substantially different from the argument presented in the earlier decision. It follows that the Full Court did not consider, let alone decide, whether the applicant’s first contention was correct. We will return to the judgment of the Full Court in Forestry Tasmania v Brown later in these reasons.

36    In support of its first contention, the applicant relies heavily on the phrase “agreement that is in force” in the definition of RFA in s 4 of the RFA Act. The applicant submits:

(a)    The phrase contains the word “agreement”, the ordinary dictionary meaning of which is “arrangement (typically one which is legally binding)”: Oxford English Dictionary (online), ‘agreement’ (def 1(a)). The word “agreement” as it appears in the phrase should be given that typical meaning. That is, as a species of “arrangement” characterised by the creation of legally enforceable obligations. This is in contrast to other species of “arrangement” by which no such obligations are created. Had Parliament intended to adopt some other, more elastic, meaning, it could have used the broader term “arrangement” or an alternative species of arrangement such as “understanding”, both of which convey the notion of an arrangement that is not legally binding. Instead, it chose “agreement”, which does typically convey the notion that it is legally binding.

(b)    The phrase refers to an agreement that is “in force”. The Oxford English Dictionary (online) defines that phrase to mean “operative or binding at the time” (def 8(c)). The Macquarie Dictionary (online) relevantly refers to “binding power, as of an agreement” (def 15). The ordinary meaning of “in force” thus reinforces the typical meaning of “agreement” described above.

(c)    These two textual matters are said to give rise to a strong indication that an “agreement that is in force” is an agreement that is legally binding between the parties. The two textual matters are mutually reinforcing, in the sense that the existence of both together demonstrates that both are intended to have the ordinary meaning described above.

37    The applicant submits that: the textual analysis is confirmed by the context of the RFA Act; there is nothing in that context that indicates that the expression “agreement that is in force” should be given any meaning other than one consistent with the ordinary meaning of its constituent parts; to the contrary, the context positively supports the ordinary meaning. The applicant points to ss 7 and 8 of the RFA Act, being those provisions referred to above that give statutory force to the obligations relating to termination and compensation imposed on the Commonwealth under the provisions of an RFA “as in force”, to support the conclusion that the words “in force” in those subsections are used consistently with the ordinary meaning of the phrase. The applicant submits that the association between “termination” and the language of contract is strong: the word is typically used to denote the action of putting an end to legal rights and obligations. It follows, the applicant submits, that there is no difficulty in concluding that the words “in force” in ss 7 and 8 are used consistently with the ordinary meaning of that expression as contended for by the applicant. The applicant submits that the same meaning should be given to the use of “in force” in the definition of “RFA” in s 4, having regard to the principle of statutory construction that a consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions (Tabcorp Holdings v Victoria [2016] HCA 4; (2016) 328 ALR 375 at [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618 per Mason J).

38    The applicant submits that the legislative history supports the proposition that an “RFA”, as defined, is legally binding, referring to the Second Reading Speech for the Bill that became the RFA Act (RFA Bill). In that speech, the Minister noted that “[i]f the accredited state processes have not satisfactorily dealt with forestry operations inconsistent with RFAs, then a state may well be in breach of its obligations” (Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1853 (Warren Truss, Minister for Agriculture, Fisheries and Forestry) (emphasis added) (Second Reading Speech)). The applicant notes that the Minister also stated that that would be a situation in which the Commonwealth “has rights under the RFA to require the state to ensure its processes meet its commitments under the RFA” and that the Commonwealth has “certain rights under the RFAs that the government will use fully” (Second Reading Speech at 1853 (emphasis added)).

39    The applicant submits that the purpose of the RFA Act, as expressed in s 3 of the RFA Act, supports its contention that, to be an RFA, an agreement must impose legally enforceable obligations on the parties in relation to the CAR Reserve System and ESFM. In oral submissions, senior counsel for the applicant took the Court to the Forest and Wood Products Action Agenda and the NFPS, which were referred to in s 3 of the RFA Act as originally enacted. (The current form of s 3 refers to the latter but not the former document). The applicant submits that if the provisions of the Tasmanian RFA that “provide for” the establishment of the CAR Reserve System and ESFM are unenforceable, then this means “that this agreement is a piece of paper divorced from its purpose”, referring to the transcript of argument in the High Court on an application for special leave to appeal from the judgment of the Full Court in Forestry Tasmania v Brown (Brown v Forestry Tasmania [2008] HCATrans 202 at lines 437, 451, 464, 530-538). The applicant contends that no “purpose is served having regard to the values that this Act is intended to preserve by making all of the primary obligations concerning forestry management systems, the CAR Reserve System and ESFM as unenforceable” and that the construction contended for by the respondents denies the purpose of the RFA Act.

40    The applicant submits further that the definitions make clear what the purpose of the Act is, by reference to the provisions of s 6 of the RFA Act, both as originally enacted and as at present. (Subsection (3) of s 6 as originally enacted has been repealed). To make good this submission, the applicant seeks to draw a distinction between the manner in which the RFA Act deals with the removal of “RFA wood” from the ambit of certain Commonwealth Acts in ss 6(1) and (2), and the manner in which an RFA forestry operation is removed from the ambit of Part 3 of the EPBC Act by s 6(4). This distinction is said to turn on the definition of “RFA wood” as being “sourced from a region covered by an RFA” as compared with an “RFA forestry operation” being one “undertaken in accordance with an RFA”.

41    The applicant submits that the treatment of “RFA wood” in ss 6(1) and (2) supports the existence of the legal enforceability requirement for the CAR Reserve System and ESFM. In relation to s 6(4), the applicant submits that RFAs create a substitute regime of regulation (that is, a substitute to the regime in the EPBC Act) and that this understanding of the exemption in s 6(4) is consistent with an interpretation of “RFA” that requires the CAR Reserve System and ESFM to be addressed in terms that are legally enforceable.

42    The applicant sought to bolster this submission by relying on the construction of s 38(1) of the EPBC Act preferred by Mortimer J in Leadbeater’s Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1 at [202] to the effect that the phrase “in accordance with” meant “consistently with”, “in conformity with” or “in compliance with”. (We note that this decision is subject to appeal). Her Honour went on to say, at [210]-[211]:

…throughout Pt 4 of the EPBC Act, where the scheme uses the phrase “in accordance with” it does so as a method of picking up, by a cross-reference, the content of another document or agreement. It is in that other document or agreement [here the Tasmanian RFA] where all of the protections which are otherwise provided by the scheme of controlling provisions in Pt 9 of the EPBC Act are found. How actions are regulated is set out in those other documents or agreement. By using the technique of requiring actions to be “in accordance with” those other documents or agreements, Parliament is picking up the content of those other documents or agreements, insofar as (and only insofar as) they regulate the taking of an action. In that way, the EPBC Act allows for the substitute of its own approval processes with other processes (generally at State level), those processes having been approved and accredited as ones which can themselves regulate the taking of actions. No general or lasting immunity from having to take an action in a way that complies with whatever scheme of environmental regulation has been chosen is given.

Once that meaning is given, then like the other instances of its use in this scheme, Parliament’s use of the phrase is a textual indication that it intends those who carry out actions to comply with whatever substitute regime is nominated by a particular provision.

43    Nothing in that passage, however, supports the applicant’s contention that the provisions of that “other document or agreement” must be in terms that require the provisions of the Tasmanian RFA to operate with the same compulsive force as the approval regime under the EPBC Act. Indeed, Mortimer J accepted, at [255], that the reasoning of the Full Court in Forestry Tasmania v Brown stands against the proposition that, in enacting s 6(4) and s 38, the legislature overlooked, through inadvertence, expressly dealing with the legal effect of a State’s non-compliance with any non-binding provisions of an RFA. Her Honour accepted that advertent features of the statutory scheme were that: (i) performance of parties’ obligations under RFAs would be sorted out by them (including, potentially, by resort to termination as the only sanction for non-performance); and (ii) non-compliance by a State with any non-binding obligation under an RFA would not defeat the carve-out effected by s 38 (subject to any termination by the Commonwealth).

44    As recognised by Mortimer J, at [263], her preferred construction of s 38(1) and s 6(4) is not inconsistent with the Full Court’s approach.

Consideration

45    For the reasons that follow, the applicant’s first contention should not be accepted.

46    First, the phrase “agreement that is in force” (in the definition of “RFA” in s 4 of the RFA Act) is used in relation to an intergovernmental agreement between the Commonwealth and a State.

47    In the course of submissions, the parties referred to the judgments of Dixon CJ, Kitto and Windeyer JJ in South Australia v Commonwealth (1962) 108 CLR 130. The applicant submits that South Australia v Commonwealth is not authority for the proposition that an intergovernmental agreement is, by its nature, unenforceable. So much may be accepted: Dennis Rose, “The Government and Contract” in P D Finn (ed) Essays in Contract (Law Book Company Ltd, 1987) 240. Nor, however, is it authority for the proposition that an “agreement” is not an “agreement” unless it is legally enforceable. The applicant’s written submissions accept that whether the terms of an agreement between two governments are legally binding depends on the circumstances (South Australia v Commonwealth at 154 per Windeyer J).

48    The passages in South Australia v Commonwealth referred to by the parties draw attention to the need to distinguish the classes of agreement that may be judicially enforced and of the need to ensure that “the necessary distinction can be maintained between, on the one hand, the exercise of the jurisdiction reposed in the Court and, on the other hand, an extension of the Court’s true function into a domain that does not belong to it, namely, the consideration of undertakings and obligations depending entirely on political sanctions” (per Dixon CJ at 141). As Windeyer J said, at 154:

An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances may put the matter outside the realm of contract law. Undertakings that are political in character – using the word “political” as referring to promises and undertakings of governments, either to their own citizens or to other states or governments – are therefore often not enforceable by processes of law.

49    As paragraphs (a) to (e) of the definition of “RFA” indicate, an RFA is concerned with matters of environmental and economic policy. While such matters could be the subject of legally enforceable obligations, they could also be (and perhaps would more readily be) matters of a political nature, often involving compromise between competing policy considerations and interests, not intended to be the subject of adjudication by the courts.

50    Some further insight into the nature of an RFA as referred to in the RFA Act can be gleaned from the NFPS, of which “certain aspects” are the concern of the RFA Act (s 3(b)). As Mortimer J observed in Leadbeater’s Possum Inc, at [122], once the relevant content and purpose of the NFPS is understood, it informs an understanding of the structure and content of RFAs themselves, the RFA Act, and the exemptions in s 6(4) of the RFA Act and s 38(1) of the EPBC Act in particular.

51    Relevantly, the foreword to the NFPS states:

The Commonwealth, State and Territory Governments attach the utmost importance to sustainable management of Australia’s forests. In order to achieve the full range of benefits that forests can provide now and in the future, the Governments have come together to develop a strategy for the ecologically sustainable management of these forests. The strategy and its policy initiatives will lay the foundation for forest management in Australia into the next century.

This Statement has been jointly developed by the Commonwealth, States and Territories through the Australian Forestry Council and the Australian and New Zealand Environment and Conservation Council in consultation with other relevant government agencies, the Australian Local Government Association, unions, industry representatives, conservation organisations and the general community. The Statement was signed by all participating Governments, with the exception of Tasmania, at the Council of Australian Governments’ meeting, held in Perth in December 1992. Tasmania became a signatory to the Statement on 12 April 1995. The Statement has been developed concurrently with the development of the Ecologically Sustainable Development National Strategy and the National Greenhouse Response Strategy.

In endorsing this Statement, we commit our respective Governments to implement, as a matter of priority, the policies in it for the benefit of present and future generations of Australians. We acknowledge that implementation of policies requiring funding will be subject to budgetary priorities and constraints in individual jurisdictions. (emphasis added)

52    The NFPS was also cognisant of the likely need to accommodate future change in forest management and the need for adaptive processes:

Managing Australia's forests in a sustainable manner calls for policies, by both governments and landowners, that can be adapted to accommodate change. Pressures for change may result from new information about forest ecology and community attitudes, new management strategies and techniques (such as those that incorporate land care and integrated catchment management principles), and new commercial and non-commercial opportunities for forest use. These pressures may affect the forests themselves.

53    Consideration of the NFPS assists with understanding that an RFA, as referred to in the RFA Act, is likely to contain provisions which “essentially depend on matters of principle or policy into which obviously financial and economic considerations must enter” (South Australia v Commonwealth, per Dixon CJ at 147) and that the legislative scheme contemplates the revision and development of codes of practice and management plans as knowledge changes.

54    Thus, read in the context of the whole of the definition of “RFA”, the words “agreement” and “in force” are equivocal in nature; they do not necessarily suggest that the terms of the agreement, including as regards the CAR Reserve System and ESFM, must be legally enforceable.

55    Secondly, while the words “in force” are used in ss 7 and 8 of the RFA Act in a context suggesting legal enforceability, these provisions are confined in their scope and operation. Section 7 deals with termination of an RFA by the Commonwealth and provides that this is of no effect unless it is done in accordance with the termination provisions of the RFA. Section 8 provides that the Commonwealth is liable to pay compensation “in accordance with the compensation provisions of an RFA”. It may be accepted that these provisions proceed on the basis that some of the terms of an RFA, namely those concerned with termination and compensation, are legally enforceable.

56    As has already been outlined above, the Tasmanian RFA is in three parts; the first two are expressed not to be intended to create legally binding obligations, the third part, however, provides for such an intention. It is the provisions within Part 3 to which ss 7 and 8 give effect. It is perfectly possible to give the phrase “in force” the same meaning in s 4 as in ss 7 and 8. The fact that every clause of an agreement may not be legally binding, or create legal obligations between the parties, does not mean that the agreement itself is not “in force”. As the respondents submit, it is apparent when considering the use of the phrase “in force” throughout the RFA Act, that it is used variously, for example, to fix a reference to an agreement operative at a particular point in time (as in the definition of RFA forestry operations (s 4) and as used in ss 9(1)(b) and (2)), to constrain Commonwealth termination of an RFA by amending the RFA and then relying on those amendments (s 7), and as a counterpoint to an agreement that “may subsequently have expired or been terminated” (s 8(2)). The words “in force” are in this context neutral as to whether or not particular terms of the agreement are legally enforceable.

57    Thirdly, the legislative history, context and purpose point against the applicant’s contention, its submissions to the contrary notwithstanding.

58    The applicant contends that the legislative history supports the proposition that an RFA, as defined, is legally binding. That proposition may be accepted in relation to the obligations contained in Part 3 of the Tasmanian RFA, but it does not advance the applicant’s primary contention. The objects of the RFA Act articulate the purpose of the Act being, inter alia, “to give effect to certain obligations of the Commonwealth under Regional Forest Agreements” (emphasis added) (s 3(a)). The RFA Act then gives the requisite legislative support to those obligations in ss 7 and 8, as well as imposing further obligations not dealt with in RFAs (ss 9-11).

59    The applicant submits that its preferred construction is supported by the Explanatory Memorandum and the Second Reading Speech relating to the RFA Bill. However, the Explanatory Memorandum makes clear that the purpose of the Bill was that as ultimately enacted in s 3 of the Act, “The RFA Bill binds executive governments to certain Commonwealth obligations under Regional Forest Agreements [including the RFA between the Commonwealth and the Tasmanian State Government] and to implementation of the Forest and Wood Products Action Agenda through the Forest and Wood Products Council” (p 1, emphasis added). At paragraph 4, the Explanatory Memorandum states:

RFAs have now been agreed in 10 regions. The RFA Bill seeks to underpin the agreements by:

•    precluding the application of controls under the Export Control Act 1982, and other Commonwealth laws which have the effect of prohibiting or restricting exports of wood from a region where an RFA is in force (supporting the current Export Control Regulations which have removed export controls where RFAs are in place);

•    preventing application of Commonwealth environmental and heritage legislation as they relate to the effect of forestry operations where an RFA, based on comprehensive regional assessments, is in place (reflecting provisions already in the EPBC Act);

•    ensuring that the Commonwealth is bound to the termination and compensation provisions in RFAs and cannot effectively change these provisions in the future without legislative action; and

•    binding future executive governments to consider advice from the Forest and Wood Products Council on the implementation of the Forest and Wood Products Action.

60    Paragraph 7 reinforces that the purpose of the RFA Bill is to enshrine certain obligations of the Commonwealth: “The benefits of the RFAs flow from stability in forest management, access and use over 20 years. The RFA Bill reinforces those benefits by ensuring that Commonwealth governments will not materially alter the conditions negotiated in RFAs. It is open to State Governments to introduce similar legislation in their Parliaments. To date, only the Tasmanian Parliament has passed similar legislation” (emphasis added). The purpose of the RFA Act was never to be the sole source, or even the primary source, of measures to protect Tasmania’s native forests, nor threatened species.

61    As STT submits, there is a broader suite of protective measures in force in Tasmania. That suite was originally described in the Tasmanian RFA as the suite as described in the Tasmanian-Commonwealth Regional Forest Agreement Background Report Part E: Assessment of Ecologically Sustainable Forest Management Systems and Processes: Independent Expert Advisory Group – Preliminary Report published by the Tasmanian Public Land Use Commission November 1996. In the 2017 variation, consistent with the periodic reviews required by the Tasmanian RFA, that suite of protective measures is that outlined in “Tasmania’s Forest Management System: An Overview (2017)” as amended from time to time. Relevantly, that document explains, (p 6):

Section 38 of the EPBC Act provides that forestry operations conducted in relation to land covered by the RFA (and not prohibited by the RFA) are exempt from the assessment and approval requirements of Part 3 of the Act (except for any forestry operations in World Heritage properties or Ramsar wetland sites). This exemption is in recognition of Tasmania’s Comprehensive Regional Assessment (undertaken as part of the development of the RFA), the implementation of a CAR Reserve System, and implementation of ecologically sustainable forest management. Hence, the RFA provides a framework for MNES [matters of National Environmental Significance] to be protected and managed through Tasmania’s forest management system, including its reserves, and avoids duplication of environmental regulation.

62    The Overview refers (p 8) to the key Tasmanian legislation which underpins the forest management system, including: the Forest Practices Act 1985 (Tas) and Forest Practices Regulations 2007 (Tas), which provide for sustainable forest management associated with the growing and harvesting of forest on public and private land; the Forest Management Act 2013 (Tas), which prescribes the Permanent Timber Production Zone Land and the Forestry Corporation (now the STT) as the land manager; the Nature Conservation Act 2002 (Tas) and the Threatened Species Protection Act 1995 (Tas), which provide protection for listed flora, fauna and threatened vegetation communities (the latter of which includes the Swift Parrot in Sch 3); and the National Parks and Reserves Management Act 2002 (Tas), which prescribes management requirements for the majority of the Tasmanian reserve system.

63    The Overview states (p 8):

Tasmania’s forest management system has, at its core, three primary elements:

•    a policy for maintaining a permanent native forest estate;

•    a CAR reserve system that securely protects forest conservation values; and

•    a system for managing forests outside reserves in a manner that contributes to sustainable environmental, social and economic outcomes.

64    It goes on to explain (p 8):

The implementation of the Tasmanian RFA and the process of adaptive management and continuous improvement built into Tasmania’s forest management system has delivered world-class sustainable forest management. As processes and knowledge evolve, the structure and delivery mechanisms within Tasmania’s forest management system have also evolved, and will continue to do so to meet community expectations. As a framework agreement, the Tasmanian RFA is able to accommodate this continuous improvement and adaptive management, without requiring continual updates to the Agreement itself.

65    When construing a federal statute, s 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object. The High Court has emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 262, Kiefel CJ, Nettle and Gordon JJ said, at [14]:

Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too if its ordinary meaning is not consistent with the statutory purpose, the meaning must be rejected.

66    In the present circumstances, it is pertinent to recall Gleeson CJ’s caution in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, at [5]:

That general rule of interpretation [a purposive construction], however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

67    It is from the context of the protective measures implemented by the States generally, and in this case by Tasmania in particular, together with the provisions of the EPBC Act, that one discerns the Commonwealth’s legislative purpose in relation to environmental protection and the protection of the national estates as enacted in the RFA Act.

68    The applicant’s submission that lack of legal enforceability (of the terms of an agreement relating to the CAR Reserve System and ESFM) would defeat the statutory purpose of the RFA Act cannot be accepted. The objects of the RFA Act, as expressed in s 3, are quite specific. Section 3(a) refers to giving effect to certain obligations of the Commonwealth under Regional Forest Agreements. Section 3(b), as originally enacted, referred to giving effect to certain aspects of the Forest and Wood Products Action Agenda and the National Forest Policy Statement. Section 3(c) refers to providing for the existence of the Forest and Wood Products Council. These objects do not provide any clear support for the applicant’s first contention.

69    Accepting that environmental protection forms one of the purposes of the RFA Act (see, eg, paragraphs (a)(i), (b), (c) and (d) of the definition of “RFA”), a requirement that the agreement provide for a CAR Reserve System and ESFM (albeit not in legally enforceable terms) tends to further that statutory purpose, at least to some extent. As the judgment of Gleeson CJ in Carr explains, legislation rarely pursues a single purpose at all costs. In the present case, it is relevant to note that the RFA Act refers to (among other things) “environmental values”, “indigenous heritage values”, “economic values of forested areas and forest industries”, “social values” and “principles of ecologically sustainable development”: see paragraph (a) of the definition of “RFA”. Thus, the Act deals with a number of different and potentially competing policy considerations. This tends to support the point that the RFA Act does not pursue a particular purpose (such as environmental protection) at all costs.

70    In our view, only limited assistance can be obtained from the NFPS (referred to in s 3 of the RFA Act) and the Forest and Wood Products Action Agenda (referred to in s 3 of the RFA Act as originally enacted). It is true that parts of the NFPS were expressed in mandatory rather than discretionary terms. For example, it was stated that parts of the public native forest estate “will” continue to be set aside in dedicated nature conservation reserve systems, and that the reserve system “will” safeguard endangered and vulnerable species and communities (p 7). However, these statements were not addressed to the present issue of statutory construction. Further, it is important to note that both the NFPS and the agenda referred to a number of different and potentially competing policy considerations; the documents were not solely concerned with environmental protection.

71    While it is true that s 6 of the RFA Act provides that certain Commonwealth Acts do not apply in relation to “RFA wood” and “RFA forestry operations”, this does not provide any clear indication that the legal enforceability of terms was required before an agreement could qualify as an “RFA”. It may be accepted that the exemptions contained in s 6 are significant. In particular, s 6(4) provides that Pt 3 of the EPBC Act does not apply to an RFA forestry operation that is undertaken in accordance with an RFA. (It is noted that the subsection does not apply to some RFA forestry operations: see s 42 of the EPBC Act). This provision is capable of operation whether or not the terms of an RFA are legally enforceable. It does not provide any clear indication that the Commonwealth Parliament intended to require that the terms of an RFA be legally enforceable. It is important to note that the Commonwealth has the power to terminate an RFA in certain circumstances, in which case the exemptions in s 6 would cease to apply.

72    Fourthly, the RFA Act was enacted in a context where agreements between the Commonwealth and several States (including Tasmania), each titled “Regional Forest Agreement”, were already in place. It is safe to assume that, in enacting the RFA Act, the Commonwealth Parliament proceeded on the basis that each of the existing Regional Forest Agreements (including the Commonwealth-Tasmania agreement as it then stood) constituted an “RFA” as defined. The Explanatory Memorandum to the RFA Bill is replete with references to the existing Regional Forest Agreements. For example, it referred on p 1 to the “ten Regional Forest Agreements (RFAs) [that] have been concluded between the Commonwealth and the Victorian, Tasmanian, New South Wales and Western Australian State Governments”. The existing agreement between the Commonwealth and Tasmania made clear that the terms of Part 2 (which included the terms relating to the CAR Reserve System and ESFM) were not legally binding: see cl 18. In this context, it is highly unlikely that the Commonwealth Parliament, in enacting the RFA Act, intended to require that, before an agreement could constitute an “RFA”, the terms relating to the CAR Reserve System and ESFM needed to be legally enforceable. This would have meant that the existing Commonwealth-Tasmania agreement did not constitute an “RFA”.

73    Fifthly, and relatedly, the definition of “RFA forestry operations” in s 4 of the RFA Act as enacted proceeded on the basis that the existing Commonwealth-Tasmania agreement constituted an “RFA”. That definition relevantly picked up the definition of “forestry operations” in “an RFA as in force on 1 September 2001 between the Commonwealth and Tasmania”. This was a reference to the agreement between the Commonwealth and Tasmania made on 8 November 1997, as varied on 19 July 2001. Thus, the RFA Act, in the definition of “RFA forestry operations”, proceeded on the assumption that the Commonwealth-Tasmania agreement constituted an “RFA”. This is a further contextual consideration that points against the applicant’s first contention.

74    As noted above, the issue before the Court turns on the construction of the RFA Act rather than of the Tasmanian RFA. Accordingly, the fact that the Tasmanian RFA was varied in 2007 and 2017 does not detract from the contextual consideration referred to in the preceding paragraph.

Forestry Tasmania v Brown

75    We turn now to the judgment of the Full Court in Forestry Tasmania v Brown.

76    In that case, the respondent contended that the primary judge should have found that the Commonwealth-Tasmania agreement was not an “RFA” as defined on the basis that it did not “provide for” a CAR Reserve System or ESFM. The respondent argued that this required the agreement to establish an enforceable regime for these matters, in the sense that the regime needed to be set out in the agreement itself (Forestry Tasmania v Brown at [70]-[73]). The Full Court rejected this contention, holding that all that was required was that the agreement “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” (at [73]). The reasoning of the Full Court drew a distinction between the words “provides for” and the word “provide” (at [72]). The definition of “RFA” merely required that the agreement “provides for” a CAR Reserve System and ESFM. The Full Court was satisfied that the Commonwealth-Tasmania agreement did so. In oral submissions in the present case, senior counsel for the applicant accepted the Full Court’s reasoning in relation to the words “provides for” in the definition of “RFA”.

77    Having dealt with (and rejected) the respondent’s contention, the Full Court in Forestry Tasmania v Brown set out at [78]-[79] what it considered to be a “more basic reason” why the Commonwealth-Tasmania agreement (in its form before the primary judge in that case) constituted an “RFA”. The Full Court noted that this issue had been raised during argument, but had not attracted the parties’ attention to the same extent as the principal contention. The Full Court referred to the definition of “RFA forestry operations” in s 4 of the RFA Act. The Full Court then stated that, in its view, that definition “identifies an agreement that Parliament treats as an RFA within the definition of regional forest agreement”.

78    In oral submissions, senior counsel for the applicant submitted that the decision of the Full Court on this point was per incuriam. That Latin expression means through want of care, and generally refers to a decision given in ignorance or forgetfulness of an earlier relevant case or inconsistent legislative provision (LexisNexis, Encyclopaedic Australian Legal Dictionary (online) ‘per incuriam’). The basis upon which it was submitted that the Full Court’s decision was per incuriam was not fully elaborated. It may be that the applicant says that Full Court did not have regard to the definition of “RFA” in s 4 of the RFA Act, and thus overlooked an inconsistent legislative provision. However, the Full Court did refer to that definition in [79] of its reasons and cannot be said to have overlooked it. It may be that the applicant’s submission is that the Full Court overlooked an argument along the lines of that now presented by the applicant. However, in circumstances where the argument was not put, the label “through want of care” would not seem apposite. In any event, although we would express the point slightly differently (see above), we consider the reference (in the definition of “RFA forestry operations”) to the Commonwealth-Tasmania agreement as an RFA to be a relevant contextual consideration. We do not accept the submission that the decision of the Full Court on this point was per incuriam.

79    In circumstances where an argument along the lines of that advanced in the present case was not advanced in Forestry Tasmania v Brown, the judgment of the Full Court does not stand in the way of the applicant’s first contention. It is therefore not necessary to consider the applicant’s (alternative) submission that the judgment in Forestry Tasmania v Brown on this point was “plainly wrong”. In any event, for the reasons set out above, we have reached a conclusion that is consistent with the judgment of the Full Court in Forestry Tasmania v Brown.

80    For these reasons, the applicant’s contention that the matters dealt with in paragraphs (b) and (c) of the definition of “RFA” – that is, the CAR Reserve System and ESFM – must be legally enforceable for the agreement to constitute an “RFA” cannot be accepted.

Unilateral amendment

81    The applicant raises an additional argument that was not advanced before the Court in Forestry Tasmania v Brown, namely that for an agreement to meet the definition of an RFA, matters that are material to the requirements of the CAR Reserve System and/or ESFM cannot be subject to unilateral amendment from time to time at the discretion of one of the parties to the RFA.

82    It is argued that the Tasmanian RFA does not “provide for” the CAR Reserve System nor the ESFM because it leaves the features and objectives of those systems to be determined unilaterally, at the discretion of Tasmania. The applicant contends further that the effect of s 46AA of the Acts Interpretation Act 1901 (Cth) is that an RFA cannot make provision in relation to those matters by applying, adopting or incorporating any matter contained in an instrument (non-Commonwealth, non-legislative) or other writing as in force or existing from time to time. That section provides, relevantly:

(1)     If legislation authorises or requires provision to be made in relation to any matter in an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, that instrument may make provision in relation to that matter:

(a)    by applying, adopting or incorporating, with or without modification, any of the following, as in force from time:

    (i)     the provisions of an Act;

(ii)    the provisions of a legislative instrument covered by subsection (3);

    (iii)    the provision of rules of court; or

(b)    subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at:

     (i)     the time the first-mentioned instrument commences; or

(ii)     a time before the first-mentioned instrument commences (whether or not the other instrument is still in force, or the other writing still exists, at the time the first-mentioned instrument commences).

(2)    The instrument may not make provision in relation to that matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

…

83    The latter submission cannot be accepted. The RFA Act does not “authorise or require” provision to be made in relation to any matter in an instrument. As has already been explained, the RFA Act does not itself give general effect to RFAs, nor does it regulate their creation or amendment. It does no more than give effect to particular obligations imposed on the Commonwealth. Paragraphs (a)-(e) of the definition of RFA in s 4 of the RFA Act constitute conditions which must be satisfied in order for an agreement to be an RFA for the purposes of the Act – it does not operate to authorise or require provision to be made in relation to any matter in an RFA.

84    Similarly, the applicant’s submissions with respect to unilateral amendment are misplaced. The Tasmanian RFA commits Tasmania to “provide for” an ESFM and a CAR Reserve System. There is nothing in the definition of an RFA which expressly, or implicitly, prohibits unilateral amendment to the agreement that is ultimately reached. The terms of that agreement were a matter between Tasmania and the Commonwealth. Whether or not Tasmania attempted to take the type of unilateral action that the applicant speculates could be taken, the Tasmanian RFA provides for the consequences of such action. Any alteration designed to displace the system of land categorisation, for example, could only be made “with the consent, in writing, of both Parties” (cl 9). Were Tasmania to legislate to defeat the commitments made in the Tasmanian RFA, the Commonwealth retains the ability to trigger the dispute resolution processes (cll 10-15), to withdraw from the automatic extension process (cll 15A-15F), or to terminate the RFA (cl 102).

85    The applicant contends that the 2017 variation, which removed cl 65, has the effect of replacing the requirement that a State operate by reference to processes that the Commonwealth has accredited with a system that allows a State to “unilaterally alter those processes”.

86    Clause 65 provided:

The Commonwealth accredits as providing for ESFM Tasmania’s current approach to its Forest Management Systems, as amended by this Agreement, including:

•    improvements specified in Attachment 10; and

•    the public reporting and consultative mechanisms specified in Attachment 11.

87    Clause 64, which remains in the RFA, provides:

The State agrees that in providing for ESFM, its Forest Management Systems will be amended to reflect the undertakings of this Agreement and in particular those undertakings specified in Attachment 10.

88    The notion of “accreditation” must be considered within the context of the Tasmanian RFA itself. As used within the RFA, it is tolerably clear that “accredit” is used in the sense of “recognising that standards have been met”, rather than in the sense of giving official authorisation of a particular process. This can be gleaned from the use of the word elsewhere in the RFA. In cl 90, for example, it is stated that the “Parties recognise that the implementation and monitoring of this Agreement depends on appropriate mutual access to and accreditation of relevant information owned and held by each of them” (emphasis added) and “recognise that the datasets used at the commencement of the Agreement are listed in Attachment 14” (cl 90B). Clause 3 of Attachment 14 provides that each Party “will provide appropriate mutual access to and accreditation of Data…which was used for RFA purposes” (emphasis added).

89    Further context is provided to the notion of “accreditation” by reference to the NFPS which, in discussing the Intergovernmental Agreement on the Environment, at cl 4.3, states, inter alia:

Where there is a Commonwealth interest in an environmental matter it may accredit a State’s processes. In the event that the Commonwealth is of the view that the processes are inadequate to accommodate the Commonwealth interest, the State will consider whether it wishes to review and modify its systems and processes and will consult with the Commonwealth on terms of reference for review. Where the Commonwealth has accredited a State system or process, the Commonwealth will give full faith and credit to the results of that system or process when exercising its own responsibilities.

A State may use the same approach where it considers that its interests can be accommodated by accrediting Commonwealth processes.

…

If the Governments agree that the process of accreditation is unlikely or unable to meet all the obligations of the Commonwealth, the Governments will also use other measures, such as comprehensive regional assessments.

90    It is clear from this statement that it was not contemplated between the Commonwealth and Tasmania that there was a requirement for any formal process of accreditation of Tasmania’s current approach to its Forest Management Systems by the Commonwealth that would bind Tasmania into the future. Indeed, it was patently clear that both parties accepted and acknowledged that Tasmania’s Forest Management Systems would be amended from time to time.

91    Despite it being contemplated that a State might also accredit Commonwealth processes, no such reciprocity was reflected in the Tasmanian RFA.

92    Clauses 65 to 71 were replaced by clauses 71A to 73. Those clauses provide:

Monitoring and reporting on Ecologically Sustainable Forest Management

71A.     The Parties agree that the Forest Management System will be enhanced by continuing mechanisms to monitor and review the sustainability of Forest management practices.

72.     The State has a well-established set of Sustainability Indicators, which are aligned with the Montreal Process Criteria and Indicators, as adapted to Australia through the Montreal Process Implementation Group, and are reported on every five years in the State of the Forests Report. The State will continue to publicly report on its Sustainability Indicators every five years in its State of the Forests Report to align with and inform the 5 yearly reviews required under this Agreement.

73.     The Parties recognise that they already have in place a range of processes and instruments which provide for public participation and consultation, as outlined in the Forest Management System.

93    The 2017 variation effects no change to Tasmania’s undertakings specified in Attachment 10. Although the word “accredit” does not appear in the replacement clauses, the intent is clearly the same – both parties have agreed that the Forest Management System will be enhanced by continuing mechanisms to monitor and review the sustainability of those practices, rather than relying simply on processes which the Commonwealth had “accredited” some 20 years previously. Similarly, both parties are agreed that there is already in place a range of processes and instruments which provide for public participation and consultation. The absence of the word “accredit” does not detract from the clear wording of the new clauses by which the Commonwealth has agreed to and accepted Tasmania’s monitoring and reporting on ESFM as it had done so previously through cl 65.

94    The deletion of cl 65, and the insertion of cll 71A-73, does not effect any material change to Tasmania’s commitment to “provide for” an ESFM and a CAR Reserve System such that the Tasmanian RFA cannot meet the definition of the RFA for the purposes of the RFA Act, as contended by the applicant.

Conclusion

95    In light of the conclusions reached above, the separate question must be answered “yes”.

96    The applicant’s application for declaratory relief in respect of that question is to be dismissed. It will be for the primary judge to determine the further conduct of the substantive proceeding.

97    As was indicated at the conclusion of the hearing, the parties will have the opportunity to provide written submissions dealing with the issue of costs.

Associate:

Dated:    3 February 2021