FEDERAL COURT OF AUSTRALIA

Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Subject to order 3, the appellant pay the costs of the respondents as agreed or assessed.

3.    If any party wishes to seek a different order as to costs:

(a)    that party is to file written submissions of no more than 5 pages in support of the order it seeks by 5 September 2023;

(b)    each other party may file written submissions in response of no more than 5 pages by 19 September 2023;

(c)    the issue of costs will be dealt with on the papers unless the Court considers that a further oral hearing is necessary; and

(d)    the parties have liberty to apply to vary the dates in (a) and (b) above.

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

REASONS FOR JUDGMENT

JACKSON AND KENNETT JJ:

INTRODUCTION

1    The locality of Gelorup is to the East of the Bussell Highway, a few minutes South of Bunbury in Western Australia. The Commissioner of Main Roads (Main Roads), a State Government entity responsible for constructing and maintaining roads, is currently engaged upon a project known as the Bunbury Outer Ring Road (the Ring Road), which is intended to allow traffic to bypass the urban area around Bunbury. The Ring Road is to connect the Forrest Highway near Australind, to the North of Bunbury, with the Bussell Highway South of Gelorup. Construction of the new road involves clearing areas of native vegetation in Gelorup.

2    On 19 September 2019, Main Roads referred part of the Ring Road project to the first respondent in these proceedings (the Minister) for consideration of whether it was a “controlled action” for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). The “proposed action” that was referred was the “BORR Southern Section”, which was identified in the referral as “South Western Highway (near Bunbury Airport) to Bussell Highway”. It was described in the following way:

The Proposal includes the construction and operation of approximately 10.5 km of new freeway standard, dual carriageway southwest of South Western Highway to Bussell Highway and a 3 km regional distributor from Bussell Highway at Centenary Road southeast to a grade separated interchange at the western end of Lillydale Road. The Proposal includes associated bridges, interchanges, local road modifications and other infrastructure including, but not limited to, drainage basins, drains, culverts, lighting, noise barriers, fencing, landscaping, road safety barriers and signs. The area being referred by Main Roads covers approximately 300 hectares (ha) and is referred to as the Proposal Area. The Proposal Area connects the northern and central sections of [the Ring Road] (from Forrest Highway) to Bussell Highway.

3    It was noted that around 33 percent of the 300 ha “Proposal Area” was native vegetation. The reason for the referral was that the BORR Southern Section had been assessed as likely to have an impact on members of identified “listed species” and “threatened ecological communities” within the meaning of the EPBC Act. These were as follows.

(a)    Banksia Woodlands of the Swan Coastal Plain (Banksia Woodlands) – up to 20.8 ha of this endangered ecological community was to be cleared.

(b)    Tuart (Eucalyptus gomphocephala) woodlands and forests of the Swan Coastal Plain (Tuart Woodlands) – the extent of this critically endangered ecological community in the Proposal Area was still to be ascertained, but 28.6 ha of the Proposal Area had been assessed as representative of a similarly described community that was listed under State legislation.

(c)    Carnaby’s Black Cockatoo (Calyptorhynchus latirostris), Baudin’s Cockatoo (Calyptorhynchus baudinii) and Forest Red-tailed Black Cockatoo (Calyptorhynchus banksia naso) (Cockatoo Species) – the proposed action involved clearing around 80 ha of suitable breeding and foraging habitat for these birds (which were listed as either endangered or vulnerable), including a number of known nesting trees and other trees identified as having suitable nesting hollows.

(d)    Western Ringtail Possum – around 80 ha of habitat suitable for this critically endangered species would be lost, affecting the home ranges of 73 individuals that had been located in surveys.

4    On 7 February 2020 a delegate of the Minister decided that the proposed action was subject to certain “controlling provisions” in the EPBC Act and therefore required assessment under that Act. The assessment was to be by the method referred to as “preliminary documentation”.

5    Following the preparation of documentation by Main Roads and various consultative steps that do not need to be described for present purposes, on 17 May 2022 a departmental officer submitted a report to a delegate of the Minister, recommending approval of the proposed action subject to certain conditions (the Recommendation Report). On 29 June 2022 the delegate approved the proposed action (the Approval Decision). On 28 July 2022 a different delegate approved certain “management plans” which conditions of the approval decision required to be submitted.

6    The appellant, a community based, non-profit association run by volunteers, commenced proceedings on 5 August 2022. It sought an order quashing the Approval Decision and relief of an injunctive nature restraining the second respondent (the Commissioner of Main Roads) from undertaking or continuing any action in reliance on that decision. By this time Main Roads had begun work on the BORR Southern Section. An interim injunction restraining the continuation of that work was granted on 5 August 2022. On 9 August, the primary judge refused an application by the appellant to continue the injunction. Work was therefore able to resume.

7    A statement of reasons for the Approval Decision was provided by the delegate on 25 August 2022. (Although that document was furnished after the proceedings were commenced (indeed after an interlocutory judgment canvassing whether certain arguments were viable or not), no point appears to have been taken concerning its admissibility (cf, eg, Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; 133 FCR 190 at [46]-[59] (French J)). In his reasons for the judgment presently under appeal, the primary judge expressly treated the document produced on 25 August 2022 as evidence of the delegate’s reasons for making the Approval Decision: Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554 at [6].

8    The primary judge heard the substantive application on 14 and 15 December 2022 and made orders on 22 December dismissing the proceeding (reserving liberty to the parties to make written submissions on costs). Those orders are the subject of the appeal.

9    At the time of hearing of the appeal, work on the project was continuing.

THE REGIME OF THE EPBC ACT

Prohibitions on actions having certain impacts without approval

10    Division 1 of Part 3 of the EPBC Act contains a series of prohibitions on undertaking any “action” that has, will have or is likely to have a “significant impact” on certain matters. Each prohibition is subject to identified exceptions, including where there is in force an approval of the action under Part 9 of the EPBC Act for the purposes of the relevant section (or a decision under Part 7 that the section is not a “controlling provision” for the relevant “action”). Related provisions create offences that correspond with the prohibitions and specify defences that correspond with the exceptions. The matters that are protected by these prohibitions are referred to as “matters of national environmental significance” (MNES). They are framed in such a way as to engage heads of Commonwealth legislative power, including the reach given to the external affairs power in s 51(xxix) of the Constitution by particular international conventions.

11    Relevantly for present purposes, s 18 prohibits (without approval) an “action” that will or is likely to have a “significant impact” on the following species and ecological communities (and s 18A creates corresponding offences):

(a)    a “listed threatened species” included in the “critically endangered” category (s 18(2)) (which included the Western Ring-Tailed Possum);

(b)    a “listed threatened species” included in the “endangered” category (s 18(3)) (which included Barnaby’s Black Cockatoo and Baudin’s Cockatoo);

(c)    a “listed threatened species” included in the “vulnerable” category (s 18(4)) (which included the Forest Red-tailed Black Cockatoo);

(d)    a “listed threatened ecological community” in the “critically endangered” category (s 18(5)) (which included Tuart Woodlands); and

(e)    a “listed threatened ecological community” in the “endangered” category (s 18(6)) (which included Banksia Woodlands).

Controlled actions and assessment

12    Section 67 provides that a proposed “action” is a “controlled action” if, without approval, it would be prohibited by a provision of Part 3. That provision is a “controlling provision” for the action. Section 67A prohibits the taking of a controlled action without approval. A person proposing to take an action that the person thinks may be a controlled action must refer the proposal to the Minister for a decision on that issue (s 68(2)). Whether an action is “controlled” or not is therefore a matter for assessment by the Minister. Under s 75(1), the Minister must decide:

(a)    whether the action that is the subject of a proposal referred to the Minister is a controlled action; and

(b)    which provisions of Part 3 (if any) are controlling provisions for the action.

13    In making a decision under s 75(1) the Minister is required to consider all adverse impacts on the relevant MNES and not consider any beneficial impacts (s 75(2)). It will also be noted that the only question raised by the definition of “controlled action” in s 67 is whether there are actual or potential significant “impacts” on such a matter. The decision does not require any discretionary balancing of those impacts against other considerations. This occurs in the approval process.

14    The decision made on 7 February 2020 in the present case was a decision under s 75. It had the effect that the proposed action (being the BORR Southern Section) could not be undertaken without obtaining approval under Part 9. The “controlling provisions” specified were ss 18 and 18A.

15    When the Minister decides that a proposed action is a controlled action, s 87 (which is in Part 8) requires a decision to be made as to which of six possible “approaches” is to be used for the assessment of the “relevant impacts of [the] action”. The approach selected in the present case was “assessment on preliminary documentation under Division 4”. No issue arises here concerning the conduct of the assessment process and it is not necessary to summarise the provisions that govern it. It is sufficient to note that the process:

(a)    includes a period for public comment, following which the proponent must provide certain documents to the Minister (s 95B); and

(b)    culminates in the Secretary preparing and giving to the Minister a “recommendation report relating to the action” which contains recommendations on whether the taking of the action should be approved and, if approved, any conditions that should be imposed (s 95C(1)).

Approval of a proposed action

16    Part 9 of the EPBC Act governs the approval process. Under s 130(1), the Minister must “decide whether or not to approve” the taking of a controlled action for the purposes of each controlling provision (that is, each provision in Part 3 that the action would breach if taken without approval). The decision must be taken within a specified period (s 130(1A)), which for present purposes is within 40 days after the Minister receives the documents referred to in s 95B (s 130(1B)(c)), but can be extended (and was extended in the present case). However, the decision cannot be made until the Minister has received those documents and the Secretary’s recommendation report. This follows from s 133(1) and from s 136(2)(bc), which requires these documents to be taken into account in making the decision.

17    Section 133(1) contains an express power – which is probably at least implicit in s 130(1) – to “approve for the purposes of a controlling provision the taking of the action by a person”. That power can only be exercised after receiving the “assessment documentation” (which, if the action was assessed under Division 4 of Part 4, comprises the documents referred to in the previous paragraph: s 133(8)). Formal requirements for the approval are set out in s 133(2). It must be in writing and specify:

    the action;

    the person to whom approval is granted;

    each provision of Part 3 for which it has effect;

    the period for which it has effect; and

    any conditions that are attached.

18    Section 136 sets out the matters that must be “considered”, and the “factors to be taken into account” in deciding whether to approve an action and what conditions to attach to an approval. (Additional requirements are imposed on certain categories of decisions by ss 137–140A but they are not relevant here.) Section 136 provides, relevantly, as follows:

136 General considerations

Mandatory considerations

(1) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:

(a)    matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;

(b)     economic and social matters.

Factors to be taken into account

(2) In considering those matters, the Minister must take into account:

(a) the principles of ecologically sustainable development; and

(b) the assessment report (if any) relating to the action; and

…

(bc) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:

(i) the documents given to the Minister under subsection 95B(1), or the statement given to the Minister under subsection 95B(3), as the case requires, relating to the action; and

(ii) the recommendation report relating to the action given to the Minister under section 95C; and

…

(e) any other information the Minister has on the relevant impacts of the action …; and

(f) any relevant comments given to the Minister in accordance with an invitation under section 131 or 131A; and

...

Person’s environmental history

(4) In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval, having regard to:

(a) the person’s history in relation to environmental matters; and

…

Minister not to consider other matters

(5) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider.

19    A number of points may be noted at this stage. First, the decision whether to approve an action is to be taken after receiving, and taking into account, the report and other documentation that comes out of the assessment process. Several of the available “approaches” to assessment, including the one employed here, include express provision for interested bodies and members of the public to be informed and make comments about the action. Secondly, in addition to considering that material, the Minister is required to consult other Ministers who have relevant responsibilities (s 131) and empowered to invite comments from the public at large (s 131A). The Minister must take into account any comments received (s 136(2)(f)). None of these sources of information or opinion is limited to the impacts of the proposed action on relevant MNES: that is, they may also properly engage with “economic and social factors” (see eg s 131(2)(a)) (noting that the issue for a recommendation report under s 95C is expressed broadly in terms of whether the action “should be approved”). Thirdly, the Minister may consider any other information in their possession about the “relevant impacts” of the action (s 136(2)(e)). Fourthly, the Minister may consider whether the proponent is a suitable person to be given approval, having regard to the proponent’s history (s 136(4)). Fifthly, the Minister must not “consider” matters other than those that are required or permitted to be under the section (s 136(5)).

20    As to the issues that can be considered, s 136(5) means that the only relevant environmental considerations are the impacts of the proposed action on matters protected by the relevant controlling provisions (s 136(1)(a)). That reflects the fact that the EPBC Act is tied to heads of Commonwealth legislative power and is not a general environmental protection statute. Noting that s 136(5) refers to “matters” (the term used in sub-s (1)), it is not clear whether it also limits the Minister’s sources of information. At least as to environmental impacts, s 136(2)(e) clearly allows the Minister to go beyond the contents of reports and comments that have been received.

21    One of the things that the Minister must “take into account” under s 136(2) is “the principles of ecologically sustainable development” (para (a)). These principles are identified by s 3A and include the principle often referred to as “the precautionary principle”, as follows:

3A Principles of ecologically sustainable development

The following principles are principles of ecologically sustainable development

…

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

…

22    The “precautionary principle” is also introduced by s 391, which sits on its own in Part 16. Sections 391(1) and (2) are as follows:

391 Minister must consider precautionary principle in making decisions

Taking account of precautionary principle

(1) The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.

Precautionary principle

(2) The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

23    Section 391(3) comprises a table listing 28 different kinds of decisions under the EPBC Act, including a decision under s 133 “whether or not to approve the taking of an action”.

24    The application of the precautionary principle in the present case, and the operation to be given in this context to the expressions “take into account” (s 136(2)) and “take account of” (s 391), need to be addressed in relation to the second ground of appeal considered below.

Conditions

25    The first ground of appeal concerns the imposition of conditions on an approval. Section 134(1A) of the EPBC Act identifies a condition to which all approvals under Part 9 are subject, but which need not be set out here. Sections 134(1) and (2) provide for the kinds of conditions that may be imposed, and s 134(3) provides examples. They are as follows (omitting unnecessary detail):

Generally

(1) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:

(a) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or

(b) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage has been, will be or is likely to be caused by the action).

Conditions to protect matters from the approved action

(2) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:

(a) protecting from the action any matter protected by a provision of Part 3 for which the approval has effect; or

(b) repairing or mitigating damage that may or will be, or has been, caused by the action to any matter protected by a provision of Part 3 for which the approval has effect.

This subsection does not limit subsection (1).

Examples of kinds of conditions that may be attached

(3) The conditions that may be attached to an approval include:

(aa) conditions requiring specified activities to be undertaken for:

(i) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or

(ii) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage may or will be, or has been, caused by the action); and

(ab) conditions requiring a specified financial contribution …; and

(a) conditions relating to any security to be given by the holder of the approval …; and

(b) conditions requiring the holder of the approval to insure against any specified liability of the holder to the Commonwealth …; and

…

(d) conditions requiring an environmental audit of the action to be carried out periodically by a person who can be regarded as being independent from any person whose taking of the action is approved; and

…

(f) conditions requiring specified environmental monitoring or testing to be carried out; and

…

This subsection does not limit the kinds of conditions that may be attached to an approval.

26    Sections 134(3A) to (3D) and (4A) make provision in relation to specific types of conditions referred to in s 134(3) and need not be set out. Sections 134(4) and (5) are as follows:

Considerations in deciding on condition

(4) In deciding whether to attach a condition to an approval, the Minister must consider:

(a) any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self-governing Territory or another law of the Commonwealth on the taking of the action; and

(aa) information provided by the person proposing to take the action or by the designated proponent of the action; and

(b) the desirability of ensuring as far as practicable that the condition is a cost-effective means for the Commonwealth and a person taking the action to achieve the object of the condition.

…

Validity of decision

(5) A failure to consider information as required by paragraph (4)(aa) does not invalidate a decision about attaching a condition to the approval.

27    It will be recalled that s 136 is expressed to apply in deciding whether to approve the taking of an action and what conditions to apply to an approval. The factors listed in s 136(1) and the reports and other things listed in s 136(2) must therefore be considered, in addition to the considerations in s 134(4), in deciding what conditions should be imposed.

28    Section 136(1) also indicates that the decision as to what conditions should be imposed is at least very closely related to the decision whether approval should be given. Sections 134(1) and (2) reinforce that point: the conditions that may be imposed are those which the Minister thinks are “necessary or convenient” for protecting, or mitigating or repairing damage to, the matters protected by the particular controlling provisions that are in play. At least implicitly, if the Minister is not satisfied that approval of the proposed action as presented is appropriate, they must consider whether an approval subject to identified conditions is appropriate.

29    Conditions attached to an approval are given legal force by Divisions 2 and 3 of Part 9. Section 142 prohibits the contravention of a condition by the person whose taking of an action has been approved, with exposure to a civil penalty as the consequence. Because contravention of a condition also contravenes s 142, there is the potential for the Minister or an “interested person” to apply for and obtain an injunction under s 475 of the EPBC Act to restrain that breach. Sections 142A(1) and (3) and s 142B attach criminal sanctions to some contraventions of conditions.

30    Sections 144(1) and (2A) empower the Minister to suspend the effect of an approval in relation to a specified provision of Part 3 for a specified period in certain circumstances involving contravention of a condition, and ss 145(1) and (2B) provide power to revoke the approval altogether. An approval that has been suspended or revoked can be reinstated by the Minister, on application by the former approval holder, under s 145A.

31    Suspension and revocation are not provided for as automatic consequences of the contravention of a condition imposed under s 134, so that they are not “conditions” in the ordinary legal sense of things upon which the approval is conditioned. First, there must be an exercise of discretion by the Minister. Secondly, the discretion only arises if breach of the condition has led to a significant impact on the matter protected (ss 144(1)(a), 145(1)(a)), the approval would not have been granted without the condition being attached (ss 144(2A)(b)(i), 145(2B)(b)(i)) or the suspension or revocation is reasonably necessary to protect a matter protected by a relevant provision of Part 3 (ss 144(2A)(b)(ii), 145(2B)(b)(ii)).

THE ISSUES IN THE APPEAL

32    Under the heading “grounds of application”, the amended originating application filed in the proceedings below included 62 paragraphs purporting to set out the appellant’s complaints. These were clearly not separate grounds of review. This section of the document was a kind of hybrid between a pleading and written submissions. From the written submissions filed for the final hearing, the primary judge identified the following bases on which the approval decision was challenged (at [8]), each of which was advanced as a ground under either the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) or s 39B of the Judiciary Act 1903 (Cth):

(1)    the conditions requiring the submission and approval of the management plans are invalid as they impermissibly defer the substantive evaluative task to be undertaken by the Minster’s delegate until after the approval was given;

(2)    the conditions requiring the offset strategy and offset management plans are likewise invalid. They also lack any specificity or detail and consequently do not have the necessary certainty to be valid conditions;

(3)    the Minister’s delegate did not lawfully consider the precautionary principle as required by the Act;

(4)    the Minister’s delegate failed to consider lawfully the Commissioner’s [(Main Roads’)] environmental history or failed to make any necessary inquiry to enable the decision whether to approve to be made on a probative basis or both; and

(5)    the decision to approve is inconsistent with a recovery plan for the western ringtail possum.

(Emphasis in original)

33    His Honour rejected each of these claims and consequently dismissed the application.

34    The notice of appeal advanced four grounds, only two of which were pressed. The issues before the Court on appeal are therefore relatively confined, albeit not simple. It is not necessary to summarise the whole of the reasoning of the delegate or the primary judge.

Ground two: conditions relating to the “offset strategy”

How the issue arises

35    Having considered the impacts of the proposed action on the Cockatoo Species and the management actions proposed by Main Roads to minimise those impacts, the Recommendation Report expressed the following conclusions at [60]–[61]:

Acceptability

60. The proposed avoidance and mitigation measures, supported by conditions to regulate the implementation of key measures …, will result in impacts from the proposed action on Black Cockatoos that the Department considers will be acceptable; however, the Department considers that the proposed action will also result in a residual significant impact that requires compensatory measures to be implemented by the proponent in order for the impact to be acceptable ….

Conclusion

61. The Department considers that, provided the proposed avoidance, mitigation and compensatory measures are implemented by the proponent, the impacts of the proposed action on Black Cockatoos are acceptable.

36    The effect of this passage was that, taking into account the avoidance and mitigation measures proposed by Main Roads to reduce the impact of the proposed action on the Cockatoo Species, there remained a “residual significant impact” that needed to be dealt with by “compensatory measures” in order for the impacts to be considered acceptable. Main Roads had proposed to provide specified areas of land by way of “offsets” (ie, areas of habitat that would be protected or improved) in order to compensate for that residual impact; however, the officers who prepared the Recommendation Report did not consider that Main Roads’ offset strategy had been shown to be sufficient. The report noted (at [50]–[51]):

50. The Department’s Post Approvals Section has reviewed the Offset Strategy provided by the proponent. The Department considers the proposed Offset Strategy does not meet the requirements of the EPBC Act Environmental Offsets Policy … in that it:

•    Does not meet principles 1, 3, 4 and 5 concerning the delivery of a conservation outcome proportionate to the size and scale of the residual impacts on protected matters, the level of protection that applies to a protected matter, and the risks of the offset not succeeding.

•    Does not meet principle 8 in that governance arrangements for the future offset are not clear.

•    Does not meeting [sic] principle 9 in that the scientific basis for the proposed offsets is not fully justified.

51. The Department considers that the Offset Strategy will require further development to adequately resolve residual impacts of the type outlined in conservation advices, and does not, in its current form, provide a 100% direct offset for impacts to Black Cockatoos.

37    The Commonwealth’s “Environmental Offsets Policy” (the Offsets Policy) was in evidence. As the appellant submitted, it is a policy document: it does not erect binding rules and it envisages evaluative judgments based on scientific expertise and experience. However, that said, it provides a relatively detailed framework designed to bring rigour to decision-making about the utility of measures that are offered by proponents and claimed to “offset” environmental damage. It includes a detailed worksheet for calculating the “value” of proposed offsets based on various factors and calls for the inputs to that worksheet to be justified. It is evident that the departmental officers considered that Main Roads’ offset strategy did not have the degree of detail and rigorous justification demanded by the Offsets Policy and therefore could not be accepted as providing sufficient offsets to make the impacts of the proposed action acceptable.

38    Similar reasoning appears in the Recommendation Report in relation to the Western Ringtail Possum (at [92]-[93], [104]-[105]), Tuart Woodlands (at [121]–[124], [130]) and Banksia Woodlands (at [147]–[155], [162]).

39    The delegate agreed with the Department’s observations about Main Roads’ offset strategy in respect of the Cockatoo Species (at [90]–[91]). She then said (at [96]):

In light of the Offset Strategy not providing 100% direct offset for impacts to Black Cockatoos, I agreed to require the proponent to submit a revised Offset Strategy and Offset Management Plans which would identify suitable environmental offsets for Black Cockatoos. This would require the proponent to negotiate the quantum of offset they will provide to meet the Offsets Policy requirements, which includes the security and implementation of a 100% direct environmental offset for Black Cockatoos. The Department has taken this approach with similar Main Roads projects. Noting the proponent’s prior history in securing suitable offsets, I agreed that there was, and is, a high degree of confidence that the final offsets package, once negotiated by the proponent with relevant third parties and the Department, will provide a 100% environmental offset for Black Cockatoos.

40    This paragraph indicates an acceptance by the delegate that a strategy providing 100 percent offsets was needed in order to make the impacts of the proposed action on the Cockatoo Species acceptable, and an expectation that this could be achieved by requiring Main Roads to submit a revised strategy. The delegate therefore accepted the Department’s recommendation that she impose a condition requiring the offset strategy and any offset management plans be approved by the Minister and meet the requirements of the Offsets Policy to the satisfaction of the Minister (at [98]). She concluded that, if approved subject to this and other conditions, the proposed action “will not have an unacceptable impact on Black Cockatoos” (at [99]).

41    The delegate reasoned in the same way, and to the same conclusions, in relation to the Western Ringtail Possum (at [125], [130]–[131]), Banksia Woodlands (at [54]–[56]) and Tuart Woodlands (at [71]–[72]).

42    Consistently with this reasoning, the proposed action was approved for the purposes of ss 18 and 18A of the EPBC Act, subject to conditions. The conditions relevant to this issue are as follows (the offset conditions):

(a)    Condition 14 requires the approval holder to submit an offset strategy to the Department within six months of commencing the action. It provides that within nine months of commencement of the action the offset strategy must meet the requirements of the Offsets Policy to the satisfaction of the Minister. It further provides that the approval holder must implement the offset strategy approved by the Minister.

(b)    Condition 15 sets out matters that must be identified and described in the offset strategy.

(c)    Condition 16 provides that, if the offset strategy has not been submitted for approval within the time allowed by condition 14, “all clearing and/or construction must cease immediately”. In that event, work may restart only after the strategy is submitted or with the Minister’s written agreement.

(d)    Condition 17 provides that, if (more than six months after work has commenced) the Minister refuses to approve the offset strategy because they are not satisfied that it meets the requirements of the Offsets Policy, clearing and construction must cease immediately. In that event, work may restart only once the offset strategy is approved or otherwise with the Minister’s written agreement.

The issue

43    The essence of the appellant’s complaint is that conditions 14 to 17 make the approval bad in law, and liable to be set aside, because their effect is to postpone a significant aspect of the decision required by ss 130(1) and 133 to a later time. (A similar complaint is made in relation to conditions 18–21, which require development of “offset management plans”, but it was accepted that this raises the same issue.) In effect (the appellant would say), rather than decide whether it is appropriate to approve the BORR Southern Section, the delegate concluded that it might be appropriate – depending on a later decision – and the action could commence pending that later decision.

44    The way the appellant’s complaint has been put at a more detailed level has varied to some degree over time. This is understandable. Its legal character is, as counsel for the appellant accepted, not easy to articulate.

(a)    In the amended originating application, the point occupied 26 paragraphs from [25]-[45]. The key point appears to have been that the conditions relating to offsets allowed destructive work to begin and proceed for several months before the “stop work” conditions became operative (at [31], [40]). Because the offset conditions involved “a critical aspect” of the approval, their effect was (it was said) to “defer actual, effective, lawful approval” of the action to a later time.

(b)    The argument developed before the primary judge (and ultimately rejected) was summarised by his Honour as follows (at [39]):

(1) the delegate decided that there were residual significant impacts that required compensatory measures by way of offsets and that the direct offsets proposed by way of compensation by the Commissioner were insufficient;

(2) the conditions did not specify with any precision what was required by way of offsets;

(3) the Offsets Policy was itself a very general document which did not provide adequate direction as to what was required by way of offsets in order to satisfy the policy;

(4) in circumstances where the particular offset measures and requirements for management of the offsets had not been specified in the conditions it could not be said that the decision to approve was informed by an understanding on the part of the delegate of what the offsets would be and therefore the substantive evaluative task (which required a consideration as to whether the offsets were sufficiently compensatory) had not been undertaken; and

(5) the ultimate evaluation and decision to be made by the Minister as to whether the offsets are sufficient will take place outside (and after) the approval process specified in the Act because it will be undertaken when the Minister decides whether to approve the offsets policy and offset management plans of the Commissioner to be submitted under the offset conditions imposed in the present case.

(c)    The notice of appeal puts the point in the following way, in the particulars to ground two:

(a) At [35], the learned trial judge correctly identified the delegate’s view of the deficiencies in the Offset Strategy submitted by the proponent.

(b) Contrary to his Honour’s conclusion at [43]-[44], this was not a case where the delegate had any, let alone a precise, understanding of the “improvements” or “adjustments” needed to the proponent’s Offset Strategy.

(c) The thrust of the decision was that the proponent would be required to identify, and then achieve, additional offsets substantially beyond that already proposed. These additional offsets had not until then been contemplated at all by the proponent, or the delegate, let alone with any particularity.

(d) Indeed, in relation to the Banksia Woodlands and Black Cockatoos protected matters, the proponent’s proposed Offset Strategy proposal was specifically rejected as providing adequate compensatory offset, and the proponent was essentially required to revisit the entirety of the Offset Strategy in that respect.

(d)    In the appellant’s written submissions, the offset conditions were said to amount to a deferral of the substantive evaluative task required under the EPBC Act, by transferring evaluation of the quality of Main Roads’ proffered offsets into a regime that was not governed by the EPBC Act. The offset conditions were said to be so broad as to mean that the delegate had made a decision “without having formed a view as to precisely what must be done in order for the approval to be given”.

Consideration

45    An argument of a similar kind was put in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; 215 FCR 301 (Buzzacott), and rejected except as to one of the conditions of the approval in that case. Buzzacott concerned the approval granted under s 133 of the EPBC Act for a large uranium mine in South Australia, together with a rail line and infrastructure for electricity, water and gas, which was subject to a large number of conditions. As recorded by the Court at [138], the argument had two limbs: that where the content and effect of conditions depended on later determinations, the result was that the purported approval was “uncertain” either in the general law sense or for the purposes of s 5(2)(h) of the ADJR Act; and that, where conditions envisage significant aspects of the proposed action being designed, determined or assessed at a later stage, the result is that the purported approval decision amounts to a provisional or preliminary approval rather than an approval as envisaged in s 133. The argument was put by reference both to particular conditions and to the cumulative effect of a number of those conditions.

46    The Court analysed in some detail the conditions upon which that argument focused. As to the first way the argument was put, the Court determined that the conditions were neither individually nor collectively beyond the power in s 134, and “nor when taken collectively does the range of conditions suggest that the approval granted is invalid for lack of certainty” (at [223]).

47    As to the second way the argument was put, the Court again carefully analysed the conditions that had been put forward as examples of the asserted problem. In relation to two of these the Court held that, although the conditions called for various matters to be the subject of plans submitted for approval at later times, they were not themselves uncertain; they did not indicate a lack of the necessary consideration of impacts in the approval decision; and they did not have the effect that the approval power remained to be exercised (at [230], [264]). The Court also rejected the argument that an error of the kind asserted could arise from the “totality” of the conditions in circumstances where each individual condition did not disclose uncertainty (at [268]).

48    One condition (condition 71) was held to be unauthorised. Condition 71 required development of a detailed infrastructure plan if the proponent wished to construct the rail line or any other infrastructure along an alignment different from that which had been considered in the assessment process. Implicitly, it envisaged that these significant aspects of the proposed action might take a different form (and affect different areas of land) from what had been assessed. There was no limit on the alternative alignments that might be proposed, or (implicitly) the power of the Minister to approve them. Condition 71 was thus not authorised, and “invalid both under the ADJR Act and the general law” (at [253]). However, it was considered to be “not fundamental” to the approval and therefore severable (at [254]–[256]).

49    Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; 218 FCR 491 (NICE) was heard before, but decided after, the judgment of the Full Court in Buzzacott. Cowdroy J did not refer to that judgment, but did refer to the judgment at first instance in Buzzacott. His Honour rejected an argument that a set of conditions requiring offsets were “uncertain”. The gist of the argument appears to have been that it could not be known whether the conditions were capable of being fulfilled; yet clearing of the relevant areas was allowed to begin before the offsets package had been verified (at [38]). It may be observed that that is really a complaint about the approval rather than the conditions, and “uncertainty” may not be the right label.

50    The conditions that were upheld in NICE are set out in the reasons of Cowdroy J at [34]. They required registration of legally binding conservation covenants over land comprising not less than a specified area and verified by independent review as being habitat of a certain quality. Counsel for the Minister submitted that those conditions were actually less certain than the conditions in issue here because, while specific amounts of land were identified, the parameters of the review required to verify their suitability and efficacy as offsets were not fixed. In the present case, on the other hand, compliance with the Offsets Policy will require express consideration, not only of the quality of habitat provided by proposed offset areas, but also of other factors such as the risk of degradation of those areas and the possibility that they might be preserved in any event (in which case they would not truly offset destruction of habitat elsewhere). The actual area ultimately required to achieve offsets in accordance with the Offsets Policy depends on the interplay of these factors. There is thus some force in this submission. However, we are not bound by the decision in NICE and, given the way in which the argument there appears to have been put, it is not of great assistance in resolving the present issue.

51    A somewhat similar issue had been canvassed in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330; 165 LGERA 203 (Lawyers for Forests). It was argued there that certain conditions on an approval were ultra vires because, among other things, the power in s 134 could not be exercised without knowing with some degree of certainty what the environmental impacts of the proposed action were likely to be. The impugned conditions required collection of data and modelling in relation to the effects of effluent from a proposed pulp mill. How the invalidity of these conditions was said to assist the applicant in having the approval set aside is not explored in the reasons of Tracey J. The argument was rejected, principally because the evidence did not support it (at [22]). The impugned conditions were also upheld on appeal: [2009] FCAFC 114; 178 FCR 385. It was held at [47] of the Full Court’s reasons that the conditions did not have the vice of having been imposed in order to ascertain the environmental effects of the proposed action. That asserted vice may give a hint as to how the attack on the conditions was seen as assisting the appellant. However, again, that question (which is the point of interest here) was not explored.

52    Arguments of the kind raised here point to a tension between what appears (from the text of ss 130 and 133) to be a requirement for a yes or no answer to be given to a proposed action and the scope and complexity of some of the actions requiring approval under the EPBC Act. Attempting to break a large and long term project into smaller components, and seek approval under the EPBC Act for each component as it arises, has obvious problems. The imposition of conditions requiring monitoring, review and the submission of plans for approval – in effect providing for ongoing supervision of the proposed action as it unfolds – is a mechanism by which proponents and decision-makers seek to manage that tension.

53    The proposed action in Buzzacott is an example. It was a large open cut mining operation expected to operate for 40 years. One of the conditions imposed on the approval (discussed at [227]–[230]) required development and implementation of a “mine closure plan”. The particular steps that would be required at the end of the mine’s life to avoid or mitigate ongoing environmental effects were impossible to predict in an assessment and approval process undertaken before mining was even begun. If approval required matters of that kind to be ascertained beforehand and set out in objective, inflexible conditions, approval of a project of that scale would likely be impossible. That is clearly not the intention of the EPBC Act. Counsel for the appellant accepted, therefore, that Part 9 must contain some scope for a proposed action to be approved subject to conditions that allow for decisions to be made on particular issues at later times. Sections 134(3)(d) to (f) envisage conditions of that kind, in that they allow the imposition of requirements for auditing, monitoring and the development of plans (things which would be of limited relevance without additional provisions for the Minister to make decisions in response to the information provided).

54    A criticism made of the conditions in NICE was that the proposed action would be well under way, and impacts on the relevant MNES would have occurred, before it was even known whether the required offsets could be provided. A similar point was made in the amended originating application in this case. If the requirement to stop work under condition 17 or 18 comes into effect, it will only do so after some months of work and may do little or nothing to prevent impacts on the matters sought to be protected. If relevant areas of habitat or threatened ecological communities have already been destroyed or degraded it might be doubtful whether the Minister would refuse to allow work to start again. However, this was not ultimately put as a reason why the approval should be set aside, and it appears to us to be a point going to the merits of the decision rather than its compliance with legal requirements.

55    Three situations can be envisaged in which the indeterminacy of a condition, attached to a purported approval under s 133 of the EPBC Act, could lead to the approval being set aside on judicial review. For reasons which we will explain, none of those situations is present here.

56    First, the condition might be found to be beyond the power conferred by s 134 and inseverable from the approval decision. This may have been the intended end-point of the argument in Lawyers for Forests, referred to above. The appellant’s argument here was not put in this way. Such an argument can be expected to be hard to make out, given the breadth of s 134 and the availability of principles of severance.

57    Secondly, the effect of a condition may be that the scope or nature of the proposed action remains to be fixed at a later time, with the final form of the action to be approved by a decision-making process outside Part 9. To take an extreme example, a road authority might propose to build a freeway through an area that includes threatened ecological communities but provide no specificity about the proposed route. In practice, that would no doubt be dealt with by the proponent being urged to refine the proposal before any decision was made under s 75. In our view it could not properly be dealt with by granting approval under s 133, with a condition requiring the detailed route to be submitted later for approval by the Minister. A decision of that kind would provide no clarity as to what action was able to be undertaken without breaching s 18 of the EPBC Act.

58    Although members of the Court in Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60; 270 FCR 267 noted that the scheme of the EPBC Act permits flexibility, including modification of a proposed action between referral and approval (at [43] (Flick J)) and some scope for judgment in how a “proposed action” is identified at the s 75 stage (at [191]–[193] (Mortimer J)), the proposed action must nevertheless have some degree of stability, as it is the subject of a sequence of decisions and assessments that the EPBC Act envisages as applying to the same subject-matter. At least when it is approved, the “action” needs to be identifiable because its boundaries are the boundaries of an exemption from one or more statutory prohibitions in Part 3.

59    Condition 71 in Buzzacott had the vice of rendering the scope of the proposed action unknowable, but the Court held that it could be severed and leave the approval standing. It appears to us that, if a condition of that kind could not be severed (which may well be the case if the condition is needed to define what is being approved), it would have the potential to result in a purported decision that did not perform the function of a decision under s 130(1). The decision would fail to perform the decisional function in that it would neither approve nor refuse to approve the proposed action, but instead purport to create a regime under which some amended version of the proposed action would be considered for approval later. It would encounter a problem of the kind identified in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 196-197 (Dixon J); and it would be inconsistent with the scheme of the EPBC Act, because the process leading to the later (determinative) decision would not be governed by Parts 8 and 9. A significant aspect of the appellant’s submissions was that the offset conditions in the present case resulted in a decision that had these flaws.

60    Clearly, in the light of what we have said above, there is some scope for the imposition of conditions that call for further assessment and approval of management plans or strategies for steps to be taken in connection with a proposed action. The appellant expressly accepted as much.

61    The circumstances in which a condition would be found to go too far in that respect need not be addressed further in this case, because the offset conditions do not create any indeterminacy in the scope of the “action” that is the subject of the approval decision. They do not countenance any alteration or revision of that action. Instead, they deal with compensatory measures that, the delegate has determined, need to occur in order to make the environmental impacts of the action acceptable. There is therefore no indeterminacy as to the scope of what has been approved, and no deferral of assessment of the proposed action.

62    Thirdly, there may be cases where the terms of a condition reveal irrationality in the reasoning leading to the decision. An argument along these lines can also be discerned in the appellant’s submissions in the appeal. (It is another possible destination of the argument in Lawyers for Forests, referred to above, had it been accepted.)

63    Sections 130, 133 and 134 of the EPBC Act, read together, impose a duty to make a decision of a particular kind. The decision must be either to approve the proposed action, approve it with conditions, or refuse to approve it. The choice between those three outcomes (and any decision about what conditions to impose) is, as counsel for the Minister submitted, discretionary. There is no specified criterion as to which the decision-maker must be satisfied. Rather, there is a requirement (imposed by s 136(1)) to consider two broadly-expressed and incommensurable sets of factors: the impacts of the proposed action on MNES; and “economic and social matters”. The decision is in that sense a political one, and power is therefore reposed in a Minister (although it can be delegated).

64    However, the prominence of impacts on MNES in s 136(1) and in the statutory scheme more generally means, in our view, that a necessary step in the decision-making process is an assessment of whether those impacts are acceptable in the light of the benefits that the proposed action may bring. If the decision-maker considers that the impacts are not acceptable, the next question for the decision-maker must be whether conditions can be devised that will result in the impacts being acceptable (by limiting or reducing those impacts or, possibly, by bringing about a benefit that offsets them) and what those conditions are. The parts of the delegate’s reasons set out above demonstrate that she was fundamentally concerned with whether the impacts of the proposed action were, or could be made, “acceptable”.

65    Because the power must be exercised according to the “rules of reason and justice”, each step in the decision-maker’s resolution of those questions needs to have a rational basis. Specifically, if it is the imposition of a condition that makes the difference between the impacts of the action being unacceptable and those impacts being acceptable, the delegate must have an understanding of what the condition will achieve and a rational basis for that understanding. Where the effect of the condition is indeterminate, because it leaves significant issues to be decided later, a consequence may be that there is no rational basis for concluding that the imposition of the condition will make the impacts of the action acceptable, and thus no proper foundation for concluding that approval is therefore appropriate. In such a case, the decision might well be found to be legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [64]-[72] (Hayne, Kiefel and Bell JJ) (and see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [2]-[13] (Allsop CJ), [50]-[62] (Griffiths J)).

66    In contrast to the second situation discussed above, whether an error of this kind has occurred depends on the decision-maker’s reasoning process rather than the terms and effect of the decision itself. The evidence of that process, including in this case the statement of reasons, therefore needs to be addressed.

67    The delegate’s reasoning, in relation to each of the species and ecological communities identified as being potentially affected, has been described at [37]-[39] above. It involves the following steps.

(a)    The impacts of the BORR Southern Section are not acceptable unless conditions are imposed to avoid, mitigate or offset them.

(b)    With conditions imposed so as to avoid or mitigate those impacts to the extent possible, the impacts remain unacceptable. The impacts would, however, be acceptable if sufficient offsets were provided.

(c)    The offset strategy proposed by Main Roads is not sufficient.

(d)    However, it is possible to be confident that Main Roads will develop and implement a sufficient offset strategy (measured by reference to the Offsets Policy) if a condition requires that to be done.

(e)    Further conditions expressly requiring work to stop if a revised offset plan is not provided, or is not in an acceptable form, within specific time frames will help to ensure that a sufficient offset strategy is developed and implemented.

68    In our view, that process of reasoning is not irrational. It is true that the delegate did not know what the final offset strategy would look like. The discussion in the statement of reasons and the Recommendation Report do not allow any finding to be made about how much further work by Main Roads was thought to be needed and how much, if any, additional land it needed to offer. However, the delegate did have:

(a)    a relatively detailed policy document by which the sufficiency of a revised offset plan could be measured;

(b)    knowledge of a history of dealings with the particular proponent; and

(c)    on the basis of these things, a “high degree of confidence” that a final offsets package would be arrived at which would “provide a 100% environmental offset”.

69    The flexibility provided for in the offset conditions therefore did not deprive the critical conclusion of the delegate – that, with those conditions in place, sufficient offsets would be achieved – of a rational foundation.

70    For these reasons, ground two is rejected.

Ground three: the precautionary principle

The issue

71    This ground takes issue with the primary judge’s rejection of what was described as claim three in the summary set out above: that the delegate did not consider the precautionary principle in the manner required by the EPBC Act.

72    The argument below and in this Court focused on the force that is given to the precautionary principle by s 391 of the EPBC Act. It must be borne in mind, however, that the principle is also brought to bear on an approval decision by s 136(2)(a) as part of the principles of sustainable development.

73    The delegate’s statement of reasons refers to the precautionary principle at two points:

(a)    Clearing associated with the BORR Southern Section was estimated to affect between 49 and 72 individual Western Ringtail Possums. Main Roads expressed a belief that displaced possums were likely to move to other locations so that there would be no mortality. However, the delegate accepted departmental advice that an unknown proportion of the displaced possums was likely to “suffer mortality” (at [112]). The delegate went on to say that, in the light of the effects of clearing and the “lack of scientific certainty as to the effect on Western Ringtail Possum mortality”, “I accepted the Department’s advice that the precautionary principle applied and I took it into account in my decision, including by imposing the conditions discussed further below” (at [113]).

(b)    Under a later heading “Other Relevant Matters”, the delegate said (at [156]):

In deciding whether or not to approve the taking of the proposed action, I took into account (amongst other matters) the principles of ecologically sustainable development as required under section 136(2)(a) of the EPBC Act, and the precautionary principle as required under section 391 of the EPBC Act. In particular, as discussed above, I accepted the Department’s recommendation that the principle applied to the Western Ringtail Possum.

74    The primary judge described the submission advanced below in this way (at [48]):

The claim made by [the appellant] concerning the precautionary principle was to the effect that the delegate only considered the principle when addressing the threat to the western ringtail possum if the proposed action was approved. This was said to be deficient because the [EPBC Act] required the precautionary principle to be considered as a factor that applied to each part of the delegate’s evaluation and that regard to the reasons demonstrated that there had been no such consideration by the delegate

75    His Honour considered the construction of s 391 of the EPBC Act and the case law on the precautionary principle in some detail at [52]-[64]. At [61] his Honour said:

Importantly for present purposes, the precautionary principle does not operate as a factor that will itself affect the outcome. Rather, it applies where there is a basis to conclude that there is a threat of serious or irreversible environmental damage and scientific uncertainty as to the nature and scope of the threat. In order for it to operate there must be material to be evaluated. The principle does not provide a basis for a decision in and of itself. It is properly seen as being directed to the quality of proof that is needed concerning a risk of environmental damage that might bear upon a particular decision. It operates in a similar manner to the direction to a jury to be satisfied beyond reasonable doubt. It sets a standard as to the level of certainty on which a decision may be based.

76    Later, his Honour said (at [70]-[71]):

… what is said is that irrespective of the nature of the findings made by the delegate as to the likely risk of impact, the delegate was required to consider the application of the precautionary principle. The contention advanced was to the effect that the reasons as to the impact on each and every community and species under consideration should have included a consideration of the precautionary principle. However, for reasons that have been given, it was a matter for the delegate to consider whether there was the requisite threat and only if there was such a threat was the delegate to take account of the precautionary principle and then only by putting to one side the lack of full scientific certainty as a reason why the proposed action should not be approved.

As has been noted, s 391 operated as an evidentiary principle not as an articulation of a substantive mater to which the decision-maker was required to have regard. The precautionary principle itself could not be a reason why a decision might be made to refuse to give an approval. Rather, the precautionary principle could only be the basis upon which material that demonstrates the requisite threat may be used as a reason for a decision made in order to prevent degradation to the environment even though there is a lack of full scientific certainty that the damage is likely to occur.

77    Turning to the delegate’s reasons in the present case, his Honour said (at [76]):

Having regard to the form of the reasons and the manner in which they identified and engaged with serious threats I am unable to infer (as I was invited to by [the appellant]) that the delegate overlooked the possible application of the precautionary principle to aspects of the reasons that concerned impacts on species other than the western ringtail possum. Rather, the reasons as a whole indicate a considered view by the delegate as to where the precautionary principle might be appropriately applied and the application of the principle in that case where there was identified uncertainty as to the likely impact. In all other respects, the delegate approached the matter on the basis that the impacts had been established. No issue arose as to the certainty with which that conclusion may be reached, particularly no issue as to whether by reason of a lack of full scientific certainty the refusal of the approval should be ‘postponed’ (to use the language of the principle as stated in s 391(2)). Therefore, there was no occasion for any lack of scientific certainty to be used as a reason for allowing the approval in accordance with the precautionary principle

78    On appeal, the appellant drew attention to what was said to be a difference between his Honour’s approach and that adopted by Moshinsky J in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 (Bob Brown Foundation) and submitted that the approach of Moshinsky J was to be preferred. What was said to follow was that there is a requirement to “consider” the precautionary principle in relation to each protected matter when making a decision under s 130. Thus, as to each issue of the four protected matters, the delegate was required to consider whether there was a relevant “threat” that brought the precautionary principle into play. It was submitted that the delegate had misunderstood the effect of the precautionary principle and that what purported to be an application of that principle to the position of the Western Ringtail Possum was, in fact, no more than the taking of a conservative approach to assessing the likelihood of an adverse environmental impact.

79    Bob Brown Foundation concerned a decision, purportedly made under s 75 of the EPBC Act, that proposed works preparatory to constructing a tailings dam in western Tasmania did not constitute a controlled action. That decision was reached on the express basis that the works would be carried out in a “particular manner” that involved measures to protect several identified species and one threatened ecological community. A decision reached on that basis needs to specify the “particular manner” (s 77A), which then has legal consequences as to how the relevant action can be carried out. The decision did not specify any measures in relation to another threatened species (the Masked Owl), even though material submitted by the proponent suggested possible impacts on that species. The decision was challenged on several grounds, including failure to comply with s 391 (which is expressed to apply to decisions under s 75).

80    At [19]-[32] Moshinsky J discussed the scope of the precautionary principle by reference to earlier authority – in particular, the two “preconditions” to its application (a “threat of serious or irreversible environmental damage” and “scientific uncertainty”) and their interaction. At [33] his Honour came to the requirement in s 391(1) to “take account” of the principle in making decisions of the relevant kind, and said (omitting citations):

In my view, the requirement to “take account” in s 391(1) is interchangeable with a requirement that a decision-maker “consider” a particular matter …. This requires the Minister to consider, at least, whether the first condition precedent is satisfied. The decision-maker must bring an active intellectual process to this matter …. If the first condition precedent is not satisfied, it is not necessary to consider the second condition precedent. If the first condition precedent is satisfied, it will be necessary to consider whether the second condition precedent is satisfied. If both conditions precedent are satisfied, this triggers the application of the precautionary principle and the concomitant need to take precautionary measures …. As already noted, however, the obligation to take account of the precautionary principle in making a decision listed in the table in s 391(3) is qualified by the words “to the extent he or she can do so consistently with the other provisions of this Act” in s 391(1).

81    Moshinsky J held that the delegate was required to consider, at least, whether the first condition precedent to the application of the principle was met, and to bring an active intellectual process to that matter. He found that the delegate had not done this, on the basis that the reasons did not “expressly refer” to that condition precedent in connection with the Masked Owl or make a finding in terms that corresponded with it (at [49]). His Honour also observed (at [52]) that it was difficult to accept that the delegate had in fact applied the precautionary principle in circumstances where consultants engaged by the proponent had recommended measures to protect the Masked Owl, but the delegate did not require the proposed action to be undertaken in accordance with these measures.

82    The primary judge, at [69], discerned some tension between the reasoning of Moshinsky J that led to his Honour’s conclusion at [49] of Bob Brown Foundation and reasoning of the Full Court in Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; 272 FCR 310 at [120]-[121]. Drawing on that reasoning, his Honour observed that it is not the precautionary principle itself that gives rise to an obligation to consider whether there are threats of serious or irreversible environmental damage. Rather, the principle comes into play where such threats exist, so as to require a decision-maker in such circumstances not to use a lack of scientific certainty as a reason not to take a measure to prevent that damage. That observation is correct. However, it does not deal with the content of the obligation under s 391 of the EPBC Act to “take account of” the principle. On that question, there is in our view a clear tension between the analysis of the primary judge at [52]-[64] and the reasoning of Moshinsky J.

Consideration

83    Without wishing to suggest that the decision in Bob Brown Foundation was wrong, we broadly agree with the approach of the primary judge to the question of how and in what circumstances the precautionary principle comes into play.

84    The formulation of the precautionary principle in ss 3A and 391 of the EPBC Act has been set out above. It is similar to the way the principle was formulated in the legislation applied in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; 67 NSWLR 256, where Preston CJ surveyed the background and operation of the principle, although (as Moshinsky J noted in Bob Brown Foundation) the two “conditions precedent” are set out in a different order.

85    It is noteworthy that the principle, as there expressed, applies to the resolution of a question concerning “postponing a measure to prevent degradation of the environment”. The Minister or a delegate deciding whether or not to approve a proposed action under s 133 (and what conditions if any to impose) does not face any question that fits within that description. Approval of an action that may have significant impacts on MNES cannot be described as “a measure to prevent degradation of the environment”. The controlling provisions in Part 3 do that work. Refusal of approval therefore does not “postpone” any measure; it leaves relevant protections in place. Conversely, the effect of an approval granted under s 133 is to relax one or more of the prohibitions in Part 3 and thereby allow some degree of adverse impact. Additionally, s 136 does not permit consideration of “degradation of the environment” as a general topic: the only environmental impacts to be considered are matters relevant to the matter protected by a controlling provision: s 136(1)(a), (5).

86    The imposition of conditions on an approval might be said to constitute a measure to prevent (or at least limit) “degradation of the environment”. However, a condition has that character only in the sense that it limits the effect to which an approval decision relaxes prohibitions in Part 3 (or offsets the consequences of such a relaxation). In substance, the grant of approval and the imposition of conditions form part of the same decision (which, as outlined in the previous paragraph, is not in any ordinary sense a decision about imposing or postponing a measure to prevent degradation). Additionally, a decision not to impose a condition would not amount to “postponing” a measure to prevent environmental degradation in any ordinary sense of that term, because conditions can only be imposed (or not) at the time of the approval decision. According to its terms, therefore, the precautionary principle as expressed in the EPBC Act has no direct application to a decision of the kind in issue here.

87    These observations call for some explanation of why the Parliament took the trouble to include s 133 in the list of provisions to which s 391 applies. That inclusion is misconceived if s 391 is concerned with the direct application of the precautionary principle. The Explanatory Memorandum to the Bill for the EPBC Act (which includes s 391 in relevantly identical terms to its current form) does not assist in this regard.

88    The explanation, in our view, lies in what is otherwise a rather curious form of words, requiring decision-makers to “take into account” the principles of ecologically sustainable development (s 136(2)(a)) and to “take account of” the precautionary principle (s 391). That form of words is curious because the principle is, as the primary judge explained in the passages set out at [75]-[76] above, with which we agree, a decisional rule concerning how evidence is to be acted upon rather than a relevant consideration in the sense of a factor to be given more or less weight in an evaluative or discretionary decision. A requirement expressed as a duty merely to “take into account” a rule of this kind is at first blush surprising because it seems unlikely that, in a decision to which the precautionary principle actually does apply, the Parliament intended to give the decision-maker a choice as to whether or not, or to what extent, to apply it.

89    The observation in Bob Brown Foundation at [33] that “take account” and “consider” are essentially interchangeable expressions is correct as far as it goes. However, the content of both expressions varies according to what it is that must be considered or taken account of. There is an important difference between the duty to take into account (or consider) relevant considerations (which requires those considerations to be weighed against other factors as part of a reasoning process) and the duty to consider (or take into account), for example, representations made by an affected person (which requires understanding of those representations and consideration of whether the points they make are relevant): see, eg, ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]–[8] (the Court); Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [67]-[70] (Colvin J).

90    In s 136 of the EPBC Act, sub-s (1) requires the Minister to “consider” two sets of issues or factors (impacts on MNES and “economic and social matters”). Subsection (2) then requires the Minister, in performing that task, to “take into account” a range of things. Paragraphs (b)–(d) and (f)–(g) of sub-s (2) specify reports, notices and comments received under various provisions of the EPBC Act, while para (e) refers to other “information” that the Minister has. These are all sources of information or statements of opinion on matters that are probably (although not necessarily) relevant to the issues or factors with which the Minister has to grapple under s 136(1). The principles of ecologically sustainable development (which include the precautionary principle), referred to in s 136(2)(a), are the subject of the same command (“take into account”); however, they are overarching rules or principles for decision-making rather than sources of information or expressions of opinion. Section 391(1) uses a third formulation – “take account of” – which in most contexts is also interchangeable with “consider”. Like s 136(2)(a), what it directs attention to is a rule or principle of decision-making, rather than an issue or factor (cf s 136(1)) or a source of information or expression of somebody’s opinion (cf s 136(2)(b)-(g)). It requires a different kind of engagement from those provisions.

91    The effect of a statutory requirement to “apply” the precautionary principle would be relatively easily understood, at least where the decision is one to which the principle applies according to its terms. Reasoning which accepted the existence of a threat of serious or irreversible harm, but held back from imposing a measure to prevent that harm on the ground of a lack of scientific certainty, would infringe the requirement. The resulting decision would at least ordinarily be liable to be set aside. In a case where the principle according to its terms does no work (including where there is no proposed “measure to prevent degradation of the environment” under consideration), a requirement to “apply” the principle would, it seems, also have no work to do.

92    The requirement to “take account of” (or “take into account”) the precautionary principle, however, brings the principle into play in cases to which it does not apply according to its terms. Because of that requirement, the Minister in making a decision under s 133 and formulating conditions under s 134 must be aware of the precautionary principle and mindful of its place in the statutory scheme (including as part of the principles of ecologically sustainable development, whose promotion is part of the objects of the EPBC Act (s 3(1)(b))). Reasoning forming part of an approval decision that was not consistent or in harmony with the precautionary principle would potentially result in the decision being set aside, on the basis that “account” had not been taken of that principle, notwithstanding that the principle does not apply according to its terms. If this were not so, the inclusion of s 133 in the list of decisions to which s 391 applies would have to be regarded as a drafting error.

93    The important point for present purposes is that, because the precautionary principle is an approach to decision-making that must be respected (rather than a mandatory consideration that must be brought to bear in deciding what is the correct or preferable decision), “taking account of” the principle in the context of deciding whether to approve a controlled action does not require a distinct, identifiable step in the reasoning involving consideration of whether the principle applies. On the one hand, according to its terms, the principle simply does not apply to a decision such as the present one. On the other hand, consideration of the nature and seriousness of the impacts of an action on aspects of the environment is already at the heart of the decision-making process. What is required, in our view, is that the assessment of the likely impacts of the proposed action on MNES, and the weighing of those impacts against the social and economic benefits of the proposed action, be done consistently with the value embodied in the precautionary principle. That has implications for, as the primary judge put it, “the level of certainty on which a decision may be based”. It does not require the decision-maker to ask themselves separately, in relation to each relevant threatened species or ecological community, whether the potential impacts of the action meet some threshold for application of the precautionary principle. Still less does it require the asking and answering of such a question to be expressly set out in the decision-maker’s statement of reasons (assuming such reasons are requested under s 13 of the ADJR Act and provided).

94    The delegate’s reasons in the present case demonstrate an awareness of the precautionary principle. Apart from one issue (which we mention below), no reference has been made to any “scientific uncertainty” that should have led the delegate to wonder whether she was required to apply the precautionary principle or to reason by analogy with it. Lack of specific reference to the principle in connection with particular issues therefore does not provide any basis for a conclusion that the delegate ignored its potential relevance. There is no reason not to take at face value her general statement as to having taken the principle into account.

95    Where the delegate perceived a lack of scientific certainty as to the extent of an impact (as to mortality among Western Ringtail Possums), she invoked the principle and proceeded on the basis that there would be some direct mortality as a result of clearing. Strictly, the appellant may well be correct to say that this was not in truth an “application” of the precautionary principle. However, that is because the decision did not call for the “application” of the principle in a direct sense. What this part of the reasons does demonstrate is an appreciation of the need to keep the precautionary principle in mind and reason consistently with it.

96    For these reasons, ground three must also be rejected.

DISPOSITION

97    The appeal must be dismissed.

98    We are not presently aware of any reason why costs should not follow the event. However, our orders will provide for any party who seeks a different order to file written submissions on that issue, and for the other parties to respond.

Associate:

Dated:    22 August 2023

REASONS FOR JUDGMENT

FEUTRILL J:

99    I have had the advantage of reading the joint reasons of Jackson and Kennett JJ in draft. I agree that the appeal should be dismissed and with the orders they propose relating to costs. I also largely agree with their reasons, but wish to explain my reasons for agreeing with them.

100    The joint reasons for judgment set out the background to the appeal, the statutory framework and the issues in the appeal. I gratefully adopt the recitation of all those matters and I also adopt all of the expressions or terms as defined or described in the joint reasons.

101    Sections 18, 18A and 19 of the EPBC Act prohibit a person from taking an action that has or will have or is likely to have a significant impact on, amongst other things, a listed threatened species included in the critically endangered, endangered or vulnerable categories or a listed threatened ecological community included in the critically endangered or endangered categories unless the person has obtained an approval for the taking of the action under Pt 9 of that Act. (An action of that kind is referred to in the Act as a controlled action and the provision containing the prohibition is referred to as a controlling provision). Under the provisions of Pt 7 of the Act, a person proposing to take such an action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action. That decision is made under s 75 of the Act. If the Minister decides that an action is a controlled action, then Pt 8 makes provision for the assessment of the impacts of the controlled action. After that assessment has been undertaken, Pt 9 makes provision for the Minister to decide whether or not to approve, for the purpose of each controlling provision for a controlled action, the taking of the action.

102    Section 130 of the EPBC Act provides that the Minister must make such a decision. Section 133 provides that the Minister may approve the taking of the action. Section 134 provides that the Minister may attach a condition to the approval. Section 136 describes certain matters that the Minister must ‘consider’, certain things the Minister must ‘take into account’ when considering those matters, certain matters the Minister may ‘consider’ and, otherwise, the Minister must not ‘consider’ any matters the Minister is not required or permitted to consider by Div 1 of Pt 9 of the Act. Notwithstanding that s 136 appears to legislate a ‘closed list’ of matters the Minister is required or permitted to consider, s 391(1) provides that the Minister must ‘take account of’ the precautionary principle in making a decision, amongst others, whether or not to approve the taking of an action under s 133 of the Act.

103    Main Roads referred to the Minister as a proposed action the construction of the Bunbury Outer Ring-Road Southern Section located at Gelorup, South of Bunbury, in Western Australia. The Minister decided that action was a controlled action under s 75. The proposed action involved the clearing of a significant area of woodland that forms part of listed threatened ecological communities in the critically endangered or endangered categories and destruction of the habitat of a number of listed threatened species in the critically endangered, endangered or vulnerable categories. About 100 hectares (or a third of the proposal area) was native vegetation. The action was assessed to have a significant impact on, amongst others, four listed threatened species, the Western Ringtail Possum (critically endangered) and three species of Black Cockatoo (endangered or vulnerable) as well as two listed threatened ecological communities, Banksia Woodlands (endangered) and Tuart Woodlands (critically endangered).

104    The Minister decided that assessment on preliminary documentation was to be used for assessment of the relevant impacts of the BORR Southern Section under Pt 8 of the EPBC Act. After the Pt 8 assessment process was completed, the Minister decided to approve the action (BORR Southern Section) and attached certain conditions to that approval under ss 130, 133 and 134 of the Act. Certain of the conditions attached to that approval require the holder of the approval to submit an offset strategy to the Department and, in effect, for the Minister to be satisfied that the offset strategy meets the requirements of the Department’s Offsets Policy. The offset strategy so approved must then be implemented. Those conditions are referred to as the offset conditions. This appeal concerns whether the Minister’s decision (through a delegate) to approve that action with the offset conditions attached was within the power (jurisdiction) of the Minister under the EPBC Act.

105    There are two principal issues in the appeal.

106    The first issue concerns the offset conditions. The appellant contends that the effect of the offset conditions was to defer (until after the putative approval) a significant part of the evaluative task the Minister was required to perform as part of deciding whether or not to approve the action. That is, under the offset conditions, the Minister is to evaluate the offset strategy submitted after the approval in order to then be satisfied of the nature and extent of the offsets to be provided by the holder of the approval as a condition of that approval. The Offsets Policy is a policy document of the Department normally used during the Pt 8 assessment phase to evaluate if and the extent to which residual impacts of a proposed action (after exhausting avoidance and mitigation measures) should be compensated by measures intended to counterbalance those residual impacts. The aim of the Offsets Policy is to deliver an overall conservation outcome that improves or maintains the viability of the environment that is affected by the proposed action. The Offsets Policy is not prescriptive. It sets out general requirements or objectives and leaves the detail of a proposed offset strategy to the proponent of the proposed action. The Offsets Policy contemplates a process of submission and revision of proposed offset strategies by the Department during the Pt 8 assessment phase until an offset strategy is proposed that, in the view of the Department, meets the Offsets Policy before a decision is then made under Pt 9 whether or not to approve the proposed action.

107    The primary judge accepted that a decision to approve an action that involved deferral of a significant part of the evaluative task would not be an authorised (valid) exercise of the Minister’s power under the EPBC Act. However, the primary judge concluded that the offset conditions did not involve such a deferral. The appellant contends that the primary judge was wrong to reach that conclusion.

108    The second issue concerns application of the requirement in s 391(1) of the EPBC Act to ‘take account of’ the precautionary principle. The appellant contends that, on the proper construction of s 391(1), the Minister (delegate) was required to ‘consider’ the precautionary principle, in the sense of having an active intellectual engagement, with respect to the identified residual impacts of the action on each of Black Cockatoos, Western Ringtail Possum and Banksia and Tuart Woodlands. The appellant contends that the delegate was required to ‘consider’ with respect to each of those protected matters, at least, if the first condition precedent to operation of the precautionary principle (a threat of serious or irreversible environmental damage) was satisfied such that the precautionary principle was or may have been engaged. The appellant contends that the delegate’s reasons do not disclose an active intellectual engagement because there was no reference to the delegate considering if the residual impacts involved a threat of serious or irreversible environmental damage in her statement of reasons for decision.

109    The primary judge did not accept that s 391(1) of the EPBC Act operated in such a manner that it was the source of an obligation to consider if there was a threat of serious or irreversible environmental damage. Rather, the primary judge was of the view that the source of the obligation to consider the impacts on the matters protected (the threatened species and ecological communities) was derived from s 136. Relevantly, the precautionary principle operates as an evidentiary principle or way of approaching decision making where the decision-maker has, in the course of considering the impacts, formed a view that there is a threat of serious or irreversible environmental damage and that there is a lack of scientific certainty about that threat. The primary judge considered the delegate’s statement of reasons and concluded that he was not able to infer that the delegate had failed to ‘take account of’ the precautionary principle in this case.

110    The appellant contends that the primary judge’s construction of s 391(1) was erroneous. Also, that he was wrong not to infer that the delegate had failed to take account of the precautionary principle.

111    In my view, for the reasons which follow, both issues in the appeal should be resolved in favour of the respondents on an analysis of the facts. That is, as a matter of fact, the offset conditions do not involve an impermissible deferral of a significant part of the Minister’s evaluative task. Further, irrespective of the proper construction of s 391(1), the primary judge was not wrong to conclude that an inference cannot be drawn from the delegate’s reasons that she failed to take account of the precautionary principle.

Deferral of the evaluative task

112    The primary judge appears to have accepted that approval of an action with a condition attached that had the effect of deferring (until after the approval) all or part of the substantive evaluative task that the Minister must perform before making a decision whether or not to approve the taking of an action would not be an ‘approval’ authorised (valid) under the EPBC Act and would amount to jurisdictional error: see, Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944 (IJ) at [44]-[50]; Friends of Gelorup Corridor Inc v Minister for Environment and Water (No 2) [2022] FCA 1554 (J) at [17]-[18]. The primary judge said (at J [18]): ‘What must be shown in order to demonstrate deferment of the deliberative task is that the nature of the conditions is such that it may be inferred that the Minister has made a decision without having formed a view as to precisely what must be done in order for the approval to be given. If a view has not been formed as to what will be required by the conditions (and a satisfaction that the requirement can and will be met) then it cannot be the case that the approval has been informed by the amelioration that might be effected by the [offset conditions].’

113    Ground 2 of the notice of appeal asserts that the primary judge was in error in reaching the conclusions expressed at J [43]-[44]. There was no challenge to the primary judge’s construction of the EPBC Act (at J [18]) as it applied to the contention that the offset conditions rendered the approval unauthorised (invalid) because the conditions involved deferment of a substantial element of the evaluative task. Indeed, in the appellant’s written submissions it embraces the primary judge’s formulation of the law in that paragraph of his reasons, but submits that the offset conditions are so broad as to meet that test. That is, the Minister made a decision without having formed a view as to precisely what must be done in order for the approval to be given.

114    Broadly, it can be accepted that if the Minister were to defer all or part of the evaluative task that must be performed to make a decision to approve (with or without conditions attached) or not to approve an action that would not be an authorised exercise of the decision-making power conferred by ss 130, 133 and 134 of the EPBC Act. Difficult questions about whether there has been such a deferral can arise where, as here, a condition is attached to an approval that provides for the Minister to be ‘satisfied’ of something after the approval of an action is granted. Conditions of that nature necessarily require the Minister to evaluate the subject matter of the condition and form a state of mind (‘be satisfied’) that the condition has been met.

115    The Full Court considered the question of the validity of an approval attaching conditions of that nature in Buzzacott v Minister for Sustainability, Environment, Water Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301. In that case the Minister had approved a proposal to expand the Olympic Dam mine located in South Australia and the Northern Territory. That approval was challenged on a number of grounds relating to the conditions attached to the approval, including an alleged lack of certainty of conditions that required the Minister or a delegate to be satisfied of certain things after the approval.

116    The Full Court (at [160]-[161]) described conditions designed to govern the process by which an approved activity is implemented as ‘ambulatory conditions’. Conditions of that nature ‘may be imposed to require such things as the monitoring of aspects of the approved activity or further assessment and approval of aspects of the approved activity’. However, as the Full Court observed (at [161]):

… the validity of ambulatory conditions may also raise questions as to whether the approval power has truly been exercised at all, either because the activity defined by the conditions or the application of the conditions is different from the activity for which approval was sought, or because a condition is ambiguous or uncertain.

117    After considering a number of authorities involving general powers to impose conditions under State planning legislation (at [162]-[178]), the Full Court observed that ‘as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency’: Buzzacott at [179]. The Full Court then made the following relevant observations about the operation of s 134 of the EPBC Act: Buzzacott at [187]-[188].

187    What is immediately obvious about s 134, is that care has been taken not to empower the Minister to impose conditions generally … but to structure the circumstances in which the Minister may attach a condition to an approval under s 133 and to identify the nature or types of conditions that may be attached. The effect of s 134(1) is two-fold. First, no condition, including those that may be imposed under subs (3), can be attached unless the Minister is satisfied that the condition is “necessary or convenient” for protecting a matter or repairing or mitigating damage to a matter protected as described by subs (1)(a) or subs (1)(b). Secondly, subs (1) is also a source of the power of the Minister to attach a condition where the Minister is satisfied that that condition is necessary or convenient in terms of subs (1)(a) or subs (1)(b). This is clear from the statement in subs (3), that subs (3) does not limit the kinds of conditions that may be attached to an approval. This non-limitation provision necessarily means that by subs (1) the Minister is authorised to attach a condition which meets the description provided in subs (1)(a) or subs (1)(b). In a case such as the present, therefore, an impugned condition may possibly be authorised by s 134(1)(a) or s 134(1)(b) alone, or in combination with one of the subparagraphs of subs (3).

188    It may be seen that by s 134(3)(e) conditions of the type that involve some retention of flexibility in relation to continuing decision-making in relation to the implementation of an activity, are expressly authorised. But, as noted, any condition relying on subs (3)(e) must meet the character of conditions requiring the preparation, submission for approval by the Minister and implementation of a plan for managing the impacts of the approved action on a matter protected by a provision of Pt 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community. However, the final phrase in subs (3)(e), “such as a plan for conserving habitat of a species or ecological community”, should be understood as providing merely an example of and not limiting the type of conditions that may be imposed under subs (3)(e), if they otherwise meet the primary requirements of such conditions. Attention should also be directed to subs (3)(f) which enables conditions requiring specified environmental monitoring or testing to be carried out, and to subs 3(g) which enables conditions requiring compliance with a specified industry standard or code of practice.

118    The Full Court’s analysis of Condition 32 under challenge in Buzzacott (at [227]-[230]) is also instructive as it has some parallels with the appellant’s challenge to the offset conditions. Condition 32 dealt with closure of the mine and required inclusion of a ‘mine closure plan’ that answered certain specifications set out in the condition. The Minister’s reasons in that case included an observation that best practice mining standards require a comprehensive closure plan to be in place before mining commences. As a consequence, the Minister decided to impose conditions requiring a mine closure plan. The Full Court considered that the approval holder in that case was not left to formulate the assessment criteria. The Minister had power to withhold approval of the mine closure plan and the assessment criteria were clear, unambiguous and specific to assist that process. The Full Court concluded (at [230]):

… While condition 32 demands “assessment criteria” that are “clear, unambiguous and are specific to the achievement of the specified environmental outcomes” and which are to include certain parameters and the like, what is required of BHPB is clear, as are the comprehensive safety assessment requirements and other requirements of the subparagraphs of condition 32. To the extent that there is any present lack of specificity about exactly what will need to be done by the approval holder to meet the terms of this condition, there might be some negotiation or exchange with the Minister that will lead to the Minister ultimately approving the plan in which these requirements are resolved. Thus, in the circumstances, there is no relevant uncertainty in the approval by reason of condition 32. The condition does not reveal that the Minister has failed to consider the environmental effects of an important issue and has left it until later. Indeed, the passage quoted by the primary judge from the Minister’s statement of reasons indicates proper consideration. The approval power does not remain to be exercised by reason of the condition; it does not fail to consider the impact of an important impact or issue. Rather, the issue has been recognised and regulated by the condition.

119    Ultimately, all of the conditions under challenge in Buzzacott on the ground of a lack of certainty were unsuccessful. However, a challenge to Condition 71 was upheld because the effect of that condition was to create in the Minister ‘an infrastructure approval power … to approve the identified infrastructure but on a new alignment with any reference to the particular requirements and mechanisms specified in the EPBC Act that would otherwise apply in relation to such a fresh infrastructure proposal.’ Consequently, the approval containing Condition 71 was not an approval that was authorised under s 133 or, put another way, Condition 71 was not authorised under s 134 because it was not for the ‘protection of the environment or management of environmental impacts by the proposed activity, but provided for the assessment and approval of some other potential infrastructure project’ (emphasis original): Buzzacott at [250]-[253].

120    It follows that where the subject matter of the condition concerns an aspect of the action the subject of the approval, in the sense that some aspect of the action will be the subject of later evaluation and satisfaction, it may be relatively easy to characterise that condition as involving the deferral of approval of part of the action. That would be similar to Condition 71 considered to result in an unauthorised approval in Buzzacott. That is, part of the action would not be evaluated and approved at the time of the putative approval, but deferred to subsequent evaluation and approval that would sit outside an approval under ss 130, 133 and 134 of the EPBC Act. Deferral of approval of a part of the action or approval of a new or variation of the action through a condition attached to an approval is not permissible.

121    However, the offset conditions are not of that character. The action that is approved is not affected by the Minister being satisfied that an offset strategy the approval holder submits meets the requirements of the Offsets Policy. Therefore, the offset conditions do not involve deferral of approval of part of the action the subject of the approval. Otherwise, it was not suggested that the offset conditions fell into the category of Condition 71 considered in Buzzacott.

122    Although unsuccessful on the facts of Buzzacott, the Full Court appears to have accepted that a condition attached to an approval that lacks certainty may result in an unauthorised approval or condition of an approval. A condition may lack certainty in the relevant sense where the ‘assessment criteria’ by which the Minister is to be ‘satisfied’ are unclear, ambiguous or non-specific. The imposition of a condition calling for the Minister to be ‘satisfied’ of something may also reveal that the Minister has failed to consider a matter required to be considered and evaluated under s 136. I would add that a condition that requires the Minister (or a delegate) to be satisfied of something after approval may be so denuded of content that it is not a ‘condition’ attached to the approval and, in substance, defers a decision on the terms of the condition to be attached until after the approval. That would also involve an impermissible deferral of the evaluative task or imposition of a condition that is not authorised.

123    Nonetheless, as was made clear in Buzzacott, deferral of a decision as to the terms or content and, in effect, the condition to be attached to an approval is to be distinguished from deferral of a decision as to the manner in which a condition attached to an approval will be satisfied. Given the nature of an approval of action under the EPBC Act it is necessary that there be power to attach conditions that confer on the Minister flexibility as to the manner in which those conditions will be fulfilled.

124    As explained in the joint reasons, the manner in which the appellant has framed the asserted error concerning the offset conditions has varied over time. The primary judge summarised the appellant's contentions as set out at [44] of the joint reasons and identified the ‘gravamen of the claim was that the terms of the Offsets Policy were too general for the delegate to be able to know with any particularity what the offsets might be and therefore a key part of the evaluative task was improperly deferred’: J at [40].

125    In the appeal, the appellant’s submissions were a refinement of the ‘gravamen of the claim’ before the primary judge. The appellant contends, in substance, that the approval was subject to a condition that there be adequate offsets, but no decision was made regarding those ‘adequate offsets’. That decision, so the appellant submits, was deferred because the content of the condition and what Main Roads was required to do in order to satisfy the condition could not be derived from the Offsets Policy or the offset conditions. The Offsets Policy itself called for the Minister (delegate) to make an evaluative judgment and the offset conditions had not set any parameters within which such an evaluative judgment was to be made.

Nature of the offset conditions

126    Resolution of the first issue in the appeal turns on a question of whether the offset conditions were so denuded of content as to not be conditions requiring the holder of the approval to take measures with known or ascertainable criteria to offset residual impacts of the approved action. That requires consideration of the delegate’s reasons, the Offsets Policy and offset conditions in the context of the applicable statutory provisions.

Delegate’s decision

127    In the present case, Main Roads had submitted to the Department an offset strategy. That strategy was subsequently revised and re-submitted. It was prepared in accordance with guidelines contained in the Offset Policy. Main Roads’ strategy was reviewed and evaluated in the Recommendation Report. The Minister was obliged to take the Recommendation Report into account (that is evaluate that report and its recommendations) under s 136. The Department was of the view that Main Roads’ offset strategy did not meet the requirements of the Offsets Policy. The delegate agreed, but approved the action all the same subject to the offset conditions.

128    In these circumstances it cannot be sustained that the delegate had not taken into account and evaluated Main Roads’ offset strategy. No decision was deferred on the adequacy of that strategy. It was considered to be deficient and, as a consequence, the offset conditions were attached.

129    The Department expressed the view in the Recommendation Report that the proposed action would have a significant residual impact on Black Cockatoos that included removal of trees containing suitable nesting hollows. The report indicated that the ‘Department will require any suitable hollow to be offset with artificial hollows. This requirement will be included in the Offset Strategy.’ The Recommendation Report recorded that Main Roads had indicated a willingness to provide artificial hollows if the Minister determined that there were significant residual impacts.

130    The Recommendation Report also indicated that the Department was of the view that the proposed action would have a significant residual impact on the Western Ringtail Possum. Main Roads had suggested in its proposed offset strategy that the proposed action would not result in any mortalities of Western Ringtail Possums. The Department was of the view that Main Roads’ assertion lacked scientific certainty. The Recommendation Report stated:

79.    Between 49-72 WRP individuals will be susceptible to home range disturbances and displacement by clearing, with some individuals losing their entire home range (i.e. their territory), and others losing a portion. The proponent states that there will not be any mortality due to the action. The preliminary documentation proposes that any displaced WRP individuals will likely seek refuge in their remaining home range, find new home ranges in nearby habitat, or join the transient WRP population.

80.    The Department considers it appropriate to apply the precautionary principle and is of the view that an unknown proportion of the 49-72 WRP displaced by clearing will suffer mortality as a result of the action. The recovery plan and conservation advice for WRP identifies that WRP display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs (Attachments F2 and F15). The Department also notes that the recovery plan indicates high mortality experienced by translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers (Attachment F2).

131    The Department considered that Main Roads’ offset strategy did not meet the requirements of the Offsets Policy in the following ways.

(a)    It did not meet principles 1, 3, 4 and 5 concerning the delivery of a conservation outcome proportionate to the size and scale of the residual impacts on protected matters, the level of protection that applies to a protected matter and the risks of the offsets not succeeding.

(b)    It did not meet principle 8 in that governance arrangements for the future offsets were not clear.

(c)    It did not meet principle 9 in that the scientific basis for the proposed offsets was not fully justified in respect of each of the Black Cockatoos, Western Ringtail Possums and Banksia Woodlands.

132    In the delegate’s statement of reasons for the approval she accepted the Department’s views about the deficiencies in Main Roads’ offset strategy and expressed conclusions on it to the same effect as those expressed in the Recommendation Report. The delegate explained in her reasons that the offset conditions were attached because Main Roads’ offset strategy was deficient, but she had confidence that an offset strategy meeting the Offsets Policy would be submitted and approved in accordance with the offset conditions.

133    Regarding the Black Cockatoos, the delegate said:

96.    In light of the Offset Strategy not providing 100% direct offset for impacts to Black Cockatoos, I agreed to require the proponent to submit a revised Offset Strategy and Offset Management Plans which would identify suitable environmental offsets for Black Cockatoos. This would require the proponent to negotiate the quantum of offset they will provide to meet the Offsets Policy requirements, which includes the security and implementation of a 100% direct environmental offset for Black Cockatoos. The Department has taken this approach with similar Main Roads projects. Noting the proponent’s prior history in securing suitable offsets, I agreed that there was, and is, a high degree of confidence that the final offsets package, once negotiated by the proponent with relevant third parties and the Department, will provide a 100% environmental offset for Black Cockatoos.

134    Regarding the Western Ringtail Possum, the delegate said:

112.    Clearing is estimated to impact 49-72 Western Ringtail Possum individuals through clearing of home ranges, with some possums losing their entire home range, and others a portion. I noted that the proponent believes displaced Western Ringtail Possum will likely seek refuge in their remaining home range, find new home ranges in nearby habitat or join the transient Western Ringtail Possum population, and there would be no mortality. However, I particularly noted that the recovery plan for the Western Ringtail Possum indicates high mortality at translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers. I therefore accepted the Department’s advice that an unknown proportion of the displaced Western Ringtail Possums will or are likely to suffer mortality as a result of the action given that Western Ringtail Possum display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs.

113.    In light of the threat to the Western Ringtail Possum arising from the clearing of habitat outlined above, and the lack of scientific certainty as to the effect on Western Ringtail Possum mortality as a result of translocation, I accepted the Department’s advice that the precautionary principle applied and I took it into account in my decision, including by imposing the conditions discussed further below.

…

125.    Again, however, I agreed that the Offset Strategy was not consistent with the EPBC Act Offsets Policy. I also noted that the Department considered that the Offset Proposal will require further development to adequately resolve residual impacts of the type outlined in conservation advices, including potential mortality amongst the Western Ringtail Possum displaced by clearing, and does not, in its current form, provide a 100% direct offset for impacts to Western Ringtail Possum.

Offsets Policy

135    The primary judge set out and summarised the terms of the Offsets Policy at J [21]-[32] and it is unnecessary to repeat that here at any length. However, it is useful to identify the salient features of the policy.

136    As the primary judge observed, the Offsets Policy is published by the Department (J at [21]). The Offsets Policy has no statutory character (J at [37]). It is a policy document. There is no statutory requirement that a specific offset strategy be approved as a condition of the approval (J at [37]). The Minister may approve the taking of action without any condition for offsets whether in accordance with the Offsets Policy or otherwise. The Minister could attach a condition for offsets to an approval as a valid exercise of power under ss 133 and 134 of the EPBC Act (J at [37]-[38]). Further, ‘[n]o part of the Offsets Policy contemplates that a condition may be imposed whereby the nature of the offsets (and in particular direct offsets) are identified (or supplemented or expanded in some way) after the approval process with the necessary consequence that the assessment as to whether the offsets proposed meet the policy is deferred’ (J at [32]). This process is intended to result in the identification of a specific offset strategy during the assessment phase that will be included as a condition of any approval.

137    Section 4 explains that the term “environmental offsets” refers to measures that compensate for the residual adverse impacts of an action on the environment. Offsets provide environmental benefits to counterbalance the impacts that remain after avoidance and mitigation measures. These remaining, unavoidable impacts are termed “residual impacts”.

138    Further, an offsets package is a suite of actions that a proponent undertakes in order to compensate for the residual significant impact of a project. It can comprise a combination of direct offsets and other compensatory measures. Direct offsets are those actions that provide a measurable conservation gain for an impacted protected matter. Other compensatory measures are those actions that do not directly offset the impacts on the protected matter, but are anticipated to lead to benefits for the impacted protected matter, for example funding for research or education programs.

139    Section 7 sets out the requirements and manner in which suitable offsets are to be determined. It provides:

Figure 2 – Determining suitable offsets under the EPBC Act

140    Box 1 is as follows:

141    Sections 7.1 to 7.8 provide an explanation of qualitative elements for ‘suitable’ offsets. That explanation provides further guidance on the manner in which the offset principles of items 1 – 8 in Box 1 are to be met. Section 8 explains that the government decision-making in relation to offsets will be informed by scientifically robust information and conducted in a consistent and transparent manner. Therefore, these sections provide further guidance on items 9 and 10 in Box 1.

142    Section 7 refers to the Offsets assessment guide giving effect to the requirements in Box 1 and to providing a decision-making framework for the Department to consider the appropriateness and adequacy of proposed offsets. Section 5.2 also provides that in the case of threatened species or ecological communities an offsets proposal will also be assessed against the ‘Offsets assessment guide’. The Offsets assessment guide is a calculator that assigns values to impacts and offsets to determine, in effect, if the value of the proposed offsets are equal to or greater than the value of the impacts. Main Roads’ proposed offset strategy included a section in which it sought to demonstrate that the proposed offsets were ‘suitable’ in accordance with the Offsets assessment guide.

143    As noted earlier, the Recommendation Report and the delegate considered that Main Roads’ proposed offset strategy had not met items 1, 3, 4, 5, 8 and 9 in Box 1. That is, the proposed offsets were not ‘suitable’ in that they had not met those requirements outlined in Box 1 in accordance with the assessment framework described in Section 7. Put another way, the delegate was not satisfied that the outputs (calculations) of the Offsets assessment guide for Main Roads’ proposed offset strategy met the requirements in Box 1.

Offset conditions

144    The relevant conditions attached to the approval were as follows:

14.    To compensate for the residual significant impact on Black Cockatoos, Western Ringtail Possum, Banksia Woodland TEC and Tuart Woodlands and Forests TEC, the approval holder must submit to the Department, for approval by the Minister, an Offset Strategy within 6 months of commencement of the action. The Offset Strategy must, within 9 months of commencement of the action, meet the requirements of the Environmental Offsets Policy to the satisfaction of the Minister. The approval holder must implement the Offset Strategy approved by the Minister.

15.    The Offset Strategy must:

a.    identify a suitable environmental offset(s) for the impacts on listed threatened species and listed ecological communities

b.    include summary information on the impacted areas and detailed baseline information on the proposed offset(s) and commit to achievable ecological benefits, and timeframes for their achievement, for the proposed offset(s)

i.    for Black Cockatoos, this must include the total number suitable nest hollows identified during the pre-clearance survey specified in condition 7 and the number of suitable nest hollows and trees with a diameter at breast height of greater than 500 mm cleared.

c.    describe the monitoring program(s) to be implemented that will determine progress towards, attainment of and maintenance of the ecological benefits for the Black Cockatoos, Western Ringtail Possum, Banksia Woodland TEC and Tuart Woodlands and Forests TEC at the proposed offset(s)

d.    specify how and at what frequency offset(s) management results, monitoring program findings and assessments of ecological benefits will be reported to the Department and the public

e.    detail how the offset(s) will be protected, and ecological benefits maintained, in perpetuity.

16.    If the Offset Strategy has not been submitted for approval by the Minister within 6 months of commencement of the action, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Offset Strategy is submitted for approval by the Minister, or with the Minister’s written agreement.

17.    If, at least 6 months after commencement of the action, the Minister notifies the approval holder, in writing, that the Minister refuses to approve the Offset Strategy because the Minister is not satisfied that it meets the requirements of the Environmental Offsets Policy, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Minister notifies the approval holder that the Minister approves the Offset Strategy, or otherwise with the Minister’s written agreement.

(Emphasis original.)

145    Broadly, condition 15 corresponds to the identified deficiencies in Main Roads’ proposed offset strategy identified in the Recommendation Report and accepted by the delegate in her statement of reasons. The proposed offsets were, overall, not considered to be ‘suitable’ offsets in accordance with the items 1, 3 and 4 of Box 1 of the Offsets Policy. That is addressed in condition 15.a. There was an absence of scientifically robust information concerning mortality of the Western Ringtail Possum and nesting hollows for Black Cockatoos. That is reflected in the reference to ‘detailed baseline information on the proposed offsets’ in condition 15.b. There was an absence of adequate mechanisms for effectively accounting for and managing the risk of the offset strategy not succeeding and for transparent governance arrangements including for ready measuring, monitoring, auditing and enforcement of offsets as required in items 5 and 8 of Box 1. That is addressed in conditions 15.c, 15.d and 15.e.

Primary judge’s reasons

146    After setting out and summarising the Offsets Policy, relevant aspects of the delegate’s reasons for decision and the offset conditions, the primary judge considered the extent to which the offset conditions involved an improper deferment of a key part of the evaluative task and concluded it did not (J at [41]-[44]):

41    As I have explained, the Offsets Policy itself required the evaluation as to whether there were compensatory offsets to be undertaken at the time of considering whether to approve the proposed action. The Offsets Policy outlined a process by which the proponent was required to submit the proposed offsets for evaluation as part of the approval process.

42    In considering whether there was a deferment of the part of the task that involved consideration of the adequacy of the proposed offsets it is necessary to focus upon the reasoning process of the delegate and the context in which the decision was made to impose the conditions concerning offsets (particularly that aspect which provided for later evaluation by the Minister whether the proposals by the Commissioner satisfied the Offsets Policy).

43    Importantly, this was not a case where offsets had been proposed by the Commissioner and the whole of the evaluation of offsets was deferred for evaluation under a process set out in the conditions. Nor was it a case where the requirement for offsets was introduced for the first time as a condition of the approval (without any proposal from the Commissioner). Rather, as has been observed, the Commissioner prepared a very detailed offsets proposal. It included the information required by the offsets assessment guide as referred to in the Offsets Policy. The Commissioner’s proposal was evaluated by the department and was the subject of the recommendation report received by the delegate. All relevant materials including the Commissioner’s offset proposal were before the delegate and were considered by the delegate. The delegate’s reasons explained the particular respects in which the Commissioner’s proposal was deficient. Necessarily implicit in the reasoning was a determination that if adjustments were made to meet the concerns identified then, in the considered view of the delegate, there would be an offsets proposal that would provide compensatory measures that would ensure that the objectives of the Act were met. This was not a case where all or much of the offsets proposed were rejected as not providing any compensatory direct offset. Nor was it a case where there was no real offsets proposal and the whole question of offsets was deferred by imposing conditions.

44    In those particular circumstances, I am not persuaded that there was a deferment by the delegate of the deliberative task or that the terms in which the Offsets Policy are expressed would deprive the conditions as to offsets of sufficient certainty as to their operation. In circumstances where there was an offsets proposal from the Commissioner and much of that proposal was accepted as providing an adequate measurable compensation gain, it is evident that the conditions were directed towards ensuring identified improvements to the proposed offsets. The scope of those required improvements was confined and described in the reasons. Therefore, it could not be concluded that the delegate did not have in mind the nature and extent of the particular direct actions that would be undertaken by way of offset when deciding to approve the proposed action.

147    There is no error in the primary judge’s reasoning or conclusions in these paragraphs.

148    The offset conditions required Main Roads to submit to the Department an offset strategy and, in substance, to satisfy the Minister within 9 months that the strategy meets the requirements of the Offsets Policy. Those requirements are identified in the Offsets Policy and offset conditions referred to earlier. The Offsets Policy is not prescriptive as to the manner in which those requirements are met. The specific details of the offsets to be provided is a matter for Main Roads to propose and the Minister to accept as suitable offsets meeting the requirements of the Offsets Policy. Therefore, the decision as to what is necessary to satisfy the offset conditions is ascertainable by objective criteria and the decision as to those criteria was made at the time the offset condition was attached to the approval. The decision and approval as to how those criteria are satisfied will be made later. That is a permissible and authorised (valid) exercise of the Minister’s power to attach a condition to an approval under ss 133 and 134 of the EPBC Act.

Requirement to ‘take account of’ the precautionary principle

149    The appellant contends that the primary judge was wrong to construe s 391 of the EPBC Act as not imposing a mandatory relevant consideration. The appellant further contends that the Minister failed to ‘take account of’ the precautionary principle in that the approval decision was made without an approved offset strategy and offset management plan to address significant residual impacts on the Black Cockatoos, Western Ringtail Possum and Tuart and Banksia Woodlands and without considering that the approval had the potential to result in the destruction of all species or ecological communities intended to be the subject of the offsets.

150    The appellant’s argument appears to be that while the delegate considered the impacts of the proposed action on each ‘matter protected’ and concluded that the impacts were significant and that there would also be significant residual impacts for which offsets were necessary, the delegate had not considered if there were ‘threats of serious or irreversible environmental damage’ with respect to each ‘matter protected’ and, thereby failed to ‘take account of’ the precautionary principle. The failure to take account of the precautionary principle is to be inferred, so the appellant submits, from the absence of any mention in the delegate’s reasons of any consideration of threats of serious or irreversible environmental damage in a context in which it was clear that that consideration was required having regard to the nature and extent of the identified significant impacts.

151    Section 391(1) provides that the Minister must take account of the precautionary principle in making a decision listed in the table in s 391(3), to the extent he or she can do so consistently with the other provisions of the EPCB Act. A decision whether or not to approve the taking of an action under s 133 is listed in the table.

152    Section 391(2) defines the precautionary principle in familiar terms.

The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

153    As is observed in the joint reasons, the precautionary principle is also introduced into a decision whether or not to approve the taking of an action under s 133 through s 136(2)(a). Section 136(2)(a) provides that in considering the matters referred to in s 136(1) (the matters the Minister must consider in deciding whether or not to approve the taking of an action and what conditions to attach to an approval), the Minister must ‘take into account’ the principles of ecologically sustainable development. Section 3A provides that those principles include that ‘if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’.

154    The manner in which it may or may not be consistent with s 136(2)(a) and s 136(5) for the Minister to ‘take account of’ the precautionary principle under s 391(1) in making a decision under s 133 need not be explored. No party in the appeal suggested that there was any issue of significance arising from the dual sources of the requirement for the Minister to ‘take account of’ (s 391(1)) or ‘take into account’ (s 136(2)(a)) the precautionary principle as expressed separately in s 391(1) or within the principles of ecologically sustainable development in ss 136(2)(a) and 3A. Thus, the real issue is how the Minister is to ‘take account of’ or ‘take into account’ the precautionary principle in deciding whether or not to approve the taking of action under s 133 and any conditions attached to an approval.

155    The primary judge approached the construction from the perspective that s 391 should be given ‘contextual meaning’, that is, ‘the text of the statute should be considered whilst at the same time having regard to its context and purpose’: J at [52]. He then considered the relevant context and purpose of the EPBC Act applicable to the contextual meaning of s 391. The primary judge noted and had regard to the following features of the Act.

(1)    The decision-making scheme under the Act as described in the primary judge’s reasons for decision on the application for interlocutory injunction: J at [53]; IJ at [7]-[20].

(2)    Approval of a controlled action under s 133(1) must specify the action the subject of the approval and any conditions: s 133(2). ‘Speaking broadly the conditions that may be attached are those that are necessary or convenient to protect, repair or mitigate environmental damage: s 134’: J at [53].

(3)    Section 136 ‘refers to matters that ‘the Minister must consider’ and describes matters that the Minister ‘must take into account’ in considering those matters. It then refers to matters that ‘the Minister may consider’ in deciding whether to approve. Finally, it provides that ‘the Minister must not consider any matters that the Minister is not required or permitted by the Division to consider’: J at [53]-[54].

(4)    The provisions following s 136 specify matters that ‘the Minister must not act inconsistently with’ in deciding whether to approve the taking of action: ss 137-140: J at [55].

(5)    It is significant that s 391 is not referred to in Pt 9 of the Act, ‘nor is there any reference to s 391 in the provisions that identify the matters that the Minister must or may consider, those which the Minister must not consider and the matters that the Minister must ‘take into account’ in deciding whether to approve.’ Instead, s 391 is in Chapter 6 of the Act which is concerned with ‘administration and enforcement of compliance with its provisions’: J at [56].

(6)    Section 391 uses a different form of wording to the provisions that specify the matters the Minister must or may consider. It uses ‘take account of’, not ‘consider’ or ‘take into account’. ‘Further, s 391 describes a ‘principle’ not a ‘matter’. It is concerned with a way of reasoning not with a particular topic or subject matter that might be considered in evaluating whether to approve.’: J at [57]

(7)    Additionally, the list of decisions to which s 391 applies is extensive and not confined to decisions whether or not to approve the taking of action. ‘It includes decisions about whether to make various types of plans which will have legislative significance and about whether an action is a ‘controlled action’ (and therefore subject to the provisions of the Act requiring approval). Decisions of that kind require assessment that affect the scope of the regulation effected by the Act. It is understandable that the Act would ensure that decisions of that kind are guided by a particular view as to the degree of scientific certainty that is required to support the decision’: J at [57].

156    The primary judge concluded that ‘(a) the language used in s 391 when compared to the provisions about approval; (b) the particular context of s 391 within the overall scheme of the Act; and (c) the range of the decisions to which s 391 is applied, all support the position [that s 391 should not be seen as providing for a matter which must be considered as if it were a factor or thing that may count for or against approval or inform whether there should be particular conditions and, if so, in what terms. Rather, the precautionary principle is a way of describing how to approach risk and uncertainty in undertaking the evaluative process].’ ‘It is not a principle of general application in the sense that it is not taken account of unless there is scientific uncertainty’: J at [50], [58].

157    Further, the primary judge considered that ‘the authorities as to the manner in which the precautionary principle is to be applied in environmental decision making support the conclusion that s 391 is imposing an obligation as to how evidence of serious environmental damage must be treated where there is a lack of scientific certainty and that it only applies where it has been determined that there is a lack of scientific certainty in respect of a particular matter’: J at [58]. He then set out relevant passages from the regularly cited decision of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 at [128]-[141]: J at [59].

158    In these passages, Preston CJ explains that the precautionary principle is triggered by the satisfaction of two conditions precedent or thresholds: (1) a threat of serious or irreversible environmental damage; and (2) scientific uncertainty as to the environmental damage. The conditions or thresholds are cumulative. Once satisfied ‘a precautionary measure’ may be taken to avert the anticipated threat of environmental damage, but it should be proportionate. That is, the precautionary principle operates where the conditions or thresholds are met in relation to a third element; namely, ‘a precautionary measure’. Assessing the seriousness or irreversibility of environmental damage involves consideration of many factors. Determining the existence of a threat of the requisite kind, at the stage of assessing the first condition, does not involve any evaluation of scientific uncertainty. If there is no threat of the requisite kind there is no basis for the principle to operate. The second condition is that there be ‘a lack of full scientific certainty’ as to the nature and scope of the threat of environmental damage. Again, the precautionary principle has no operation in the absence of a lack of scientific certainty about a threat of the requisite kind.

159    The primary judge observed that ultimately Preston CJ explained the precautionary principle as a principle of evidence that shifts the burden of proof: J at [60].

60    … Preston CJ described the manner of its operation in the following way (at [150]-[152]):

If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.

The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.

The function of the precautionary principle is, therefore, to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists …

160    The primary judge went on to observe that ‘the precautionary principle does not operate as a factor that will affect the outcome … it applies where there is a basis to conclude that there is a threat of serious or irreversible environmental damage and scientific uncertainty as to the nature and scope of the threat. In order for it to operate there must be material to be evaluated. The principle does not provide a basis for a decision in and of itself.’: J at [61].

161    Relying on the manner in which the Full Court approached the construction of a provision of the Great Barrier Reef Marine Park Act 1975 (Cth) calling for application of the precautionary principle in Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310 at [120]-[121], the primary judge reasoned that ‘the question of whether there were threats of serious or irreversible environmental damage was largely a matter of evaluative fact … So, the question whether there was material that gives rise to the [threat of serious or irreversible environmental damage] was a within jurisdiction adjudicative task entrusted to [the decision-maker]. It was a matter to which the Minister was required to have regard by reason of the terms of the provisions concerned with the matters which the Minister must consider or to which the Minister must have regard. Section 391(1) was not the source of that requirement.’ Therefore, ‘the question whether there was material that gave rise to a need to apply the precautionary principle was a matter for the Minister’s delegate. Further, there could be no relevant error unless the delegate failed to bear in mind (perhaps actually deploy to the extent there was no inconsistency with another provision in the Act) the precautionary principle if there was a risk of the requisite kind about which there was scientific uncertainty.’: J at [64].

162    The primary judge also considered the manner in which Moshinsky J approached the interpretation of s 391 in its application to s 75 of the EPBC Act in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 at [33]. There, Moshinsky J considered that the meaning of the requirement in s 391(1) to take account of is interchangeable with a requirement that a decision-maker “consider” a matter. That requires the Minister to “consider”, at least, whether the first condition precedent is satisfied. The decision-maker must bring an active intellectual process to that matter.

163    The primary judge first referred to Bob Brown Foundation when considering the extent to which, if the preconditions for application of the precautionary principle were satisfied, the Minister was required ‘to deploy the principle (save where such a course would be inconsistent with another provision in the Act) because [the terminology of s 391(1) ‘must take account of’] may require regard to a matter as a fundamental element in the decision making process’. He concluded that it was ‘not necessary to reach a precise conclusion as to this aspect’. However, the primary judge noted that ‘take account of’ may be interchangeable with ‘consider’ as Moshinsky J had said in Bob Brown Foundation at [33]. The primary judge also noted that Tracey J had expressed the view in Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330; (2009) 165 LGERA 203 at [36] that: ‘So long as the Minister, as he did in the present case, takes account of the precautionary principle, it is a matter for him to determine what weight is to be accorded to the principle having regard to the wide range of other considerations which he is also required to take into account’: J at [62].

164    The primary judge later referred to Bob Brown Foundation as an example of a decision in which it had been found that the Minister had failed to ‘take account of’ the precautionary principle. By reference to Bob Brown Foundation at [19]-[33], [39] and [48], the primary judge observed that Moshinsky J ‘found as a matter of fact (by a process of inference) that there was a failure to consider the precautionary principle’ in that case.

165    The primary judge also observed that there is a tension between the approach of Moshinsky J in Bob Brown Foundation and that of the Full Court in Queensland v Humane Society. The primary judge was of the view that consistently with the Full Court’s reasoning in Queensland v Humane Society it is not the precautionary principle that is the source of the obligation to consider if there are threats of the requisite kind. The tension arises because the reasons of Moshinsky J in Bob Brown Foundation suggest that s 391(1) contains a separate and independent obligation ‘to consider, at least, whether the first conditions precedent … is satisfied’: Bob Brown Foundation at [33], [48].

166    The appellant contends that the approach of Moshinsky J in Bob Brown Foundation was correct and the primary judge was in error for not adopting that approach. The appellant submits that the difference in the two constructions is as follows:

(a)    Moshinsky J held that s 391 necessitates (by implication) that the decision-maker consider the material before them insofar as it might engage with the precautionary principle, and depending on the quality of the material, might need to engage directly with that material and make express findings on the topic.

(b)    The primary judge held s 391 operates only where the decision-maker has in fact (already) made a finding that there is a threat of serious or irreversible environmental damage. Even then, s 391 is relevant only if there is some measure in contemplation to prevent degradation of the environment, and only at that point, s 391 bites to direct the decision-maker to take account of a principle that the lack of full scientific certainty should not be used as a reason for postponing that measure.

167    Bob Brown Foundation concerned a decision of a delegate to the effect that the proposed action in that case was not a controlled action provided it was undertaken in the manner set out in the decision. The delegate’s decision was made under ss 75 and 77A of the EPBC Act. The proposed action involved geotechnical works and investigations for the purpose of informing the design and assessment of a proposed tailings storage facility for a mine operation on the west coast of Tasmania. The delegate found that there would not be significant impacts on the Tasmanian Masked Owl notwithstanding that consultants engaged by the proponent had recommended that certain measures be adopted in relation to the Tasmanian Masked Owl. The delegate identified that there were threats to the Tasmanian Masked Owl including habitat clearing and fragmentation from agriculture, forestry, and residential development, loss of nesting habitat through tree dieback, collision mortality and secondary poisoning. The delegate also noted the species is elusive, and that further surveying efforts would be needed to understand the species’ usage of the site. The delegate also indicated that in making the decision account was taken of “limited information available regarding the species’ usage of the site”. Therefore, materials before the delegate and the delegate’s reasons suggested that both conditions precedent of the precautionary principle may have been satisfied in the circumstance of that case. In that context, Moshinsky J said at [48]:

In my view, it is apparent from the Statement of Reasons that the Delegate did not comply with the obligation in s 391(1) to take account of the precautionary principle. As set out above, to comply with this obligation, it is necessary for the Minister (or, in this case, the Delegate) to consider, at least, whether the first condition precedent (namely, if there are threats of serious or irreversible environmental damage) is satisfied. This requires the decision maker to bring an active intellectual process to this matter. Having reviewed the section of the Statement of Reasons dealing with the Tasmanian Masked Owl (being [177]-[196]), and the Statement of Reasons as a whole, I am satisfied that the Delegate failed to do this. The Delegate did not expressly refer to the first condition precedent in the section of the reasons dealing with the Tasmanian Masked Owl. Nor did the Delegate make a finding in terms that correspond to the first condition precedent. While the Delegate, at [184], identified a number of “threats” to the Tasmanian Masked Owl (by reference to the Approved Conservation Advice), the Delegate did not go on to discuss, or make a finding as to, whether those threats, or the threats posed by the proposed action, were serious or irreversible. In the absence of any discussion or finding about this matter, I infer that the Delegate failed to consider it.

(Emphasis original.)

168    It follows that on the facts of Bob Brown Foundation the delegate was required by operation of Pt 7 of the EPBC Act and s 75 to consider if the proposed action would have a significant impact on a protected matter (the Tasmanian Masked Owl) and that, in turn, may have triggered the operation of the precautionary principle if impacts were considered to result in serious or irreversible environmental damage and there was a lack of scientific certainty about the nature of that threat. The delegate’s reasons revealed the existence of threats and an evident lack of information (scientific certainty) about the extent of those threats. It is implicit that Moshinsky J considered, on the findings of the delegate in that case, that the preconditions for engagement of the precautionary principle were satisfied and, therefore, he inferred from the absence of any specific consideration of the seriousness or irreversibility of the threats to the Tasmanian Masked Owl that the delegate had not applied the precautionary principle in the process of reasoning that resulted in the conclusion that the impact on the owl would not be significant. Therefore, I do not consider that the observations of Moshinsky J at [33] and [48] of Bob Brown Foundation on the operation of s 391(1) express an interpretation of that provision that is necessarily of general application. Those observations are to be read in the context of the facts of that case and the nature of the delegate’s failure to ‘take account of’ the precautionary principle inferred from those facts.

169    In my view, largely for the reasons given by the primary judge, his construction of s 391(1) and its application to a decision whether to approve an action under s 133 is correct. As noted earlier, there is a nuance to be added to those reasons given that, through s 136(2)(a), the precautionary principle is something that must be ‘taken into account’ in consideration of the matters that must be considered under s 136(1). That nuance affects the primary judge’s reasons insofar as he relied on s 136 as a ‘closed list’ of matters that were required or permitted to be considered in a decision under s 133 and that s 391(1) sits in Chapter 6 and is expressed such that account is to be taken of the principle ‘to the extent [it can be done so] consistently with the other provisions of this Act.’ That reasoning is, with respect, sound and remains so regarding the interpretation and application of s 391(1) to a decision under s 133. Insofar as it is not applicable to s 136(2)(a), it does not detract from the other reasons the primary judge gave for considering that the ‘precautionary principle’ is a ‘principle’ rather than a ‘matter’ nor that the structure of Pt 9 and s 136, in particular, identify the ‘matters’ which must or may be considered in making a decision under s 133 to approve and the conditions to attach under s 134.

170    Section 136(2)(a) identifies a ‘principle’ that must be ‘taken into account’ ‘in considering’ the matters referred to in s 136(1) that must be considered in deciding whether or not to approve the taking of an action (under s 133). Section 391(1) identifies a ‘principle’ that must be ‘taken account of’ in making a decision under s 133. The primary judge’s observations that the precautionary principle operates as a way of making decisions and as a principle of evidence apply equally to s 391(1) and s 136(2)(a). Further, the necessity to consider threats of environmental damage arises from a consideration of the matters that the Minister is required or permitted (must or may) consider in making a decision in accordance with the ‘closed list’ of s 136.

171    The question of whether there are threats of the requisite kind for which there is a lack of full scientific certainty is within the evaluative jurisdiction of the Minister in the exercise of decision-making power under ss 130, 133 and 134. Put another way, s 391(1) (and s 136(2)(a)) are to be understood as providing that where applicable the Minister must ‘take account of’ (or ‘take into account’) the precautionary principle. The applicability of the precautionary principle, in turn, depends on the findings (or conclusions) the Minister makes (or reaches) in the performance of the evaluative task. Those findings (or conclusions) may or may not reveal a failure to ‘take account of’ (or ‘take into account’) the precautionary principle in the Minister’s process of reasoning. A bare statement to the effect that ‘the precautionary principle has been taken into account’ may or may not, depending on the circumstances, be of assistance to a court on review of a decision in which it is asserted that the Minister has failed to ‘take account of’ or ‘take into account’ the principle.

172    The primary judge was correct to observe that the precautionary principle is, of its nature, an evidentiary principle. It concerns a way of approaching environmental decision-making that treats environmental damage as certain where there is scientific uncertainty as to that damage. Consequently, a measure that is capable of preventing or mitigating that damage should be implemented before any environmental damage actually takes place. Therefore, what is ‘taken account of’ or ‘taken into account’ by the decision-maker where the principle applies is the assumed certitude of serious or irreversible environmental damage as a factor that is to inform the nature and extent of any precautionary measure intended to avoid or mitigate that damage.

173    The precautionary principle does not necessarily operate as a means of refusing a proposal that will lead to environmental damage. It permits the taking of preventative measures without having to wait until the reality of the seriousness of the threats becomes fully known. As Preston CJ explained in Telstra at [154], [156].

154    It should be recognised that the shifting of the evidentiary burden of proof operates in relation to only one input of the decision-making process — the question of environmental damage. If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. This assumed factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation (such as s 79C(1) of the Environmental Planning and Assessment Act). There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed: “Factoring biodiversity conservation into decision-making processes: The role of the precautionary principle” at 108.

…

156    The precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known: Pfizer Animal Health SA v Council of the European Union [2002] ECR II–3305 at [139]; Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri (at [111]). This is the concept of preventative anticipation: T O’Riordan and J Cameron, “The History and Contemporary Significance of the Precautionary Principle” in T O’Riordan and J Cameron (eds), Interpreting the Precautionary Principle (1994) London, Earthscan Publications at 17; and Principles of International Environmental Law, at 269.

174    As is identified in the joint reasons at [85], there is a degree of inelegance in the literal application of the text of the precautionary principle as expressed in s 391(2) (and s 3A) to a decision to approve the taking of action. Approval of an action that is a controlled action, by definition, will result in environmental damage (significant impacts on a matter protected). Nonetheless, having regard to its nature as a ‘principle’ and an approach to decision-making, there is no real difficulty applying the principle or concept to a decision whether or not to approve an action under s 133. A decision not to approve may be made as a consequence of the application of the precautionary principle where the threat of serious or irreversible environmental damage is sufficiently great having regard to the lack of scientific certainty about that threat. A decision not to approve in those circumstances may be characterised as a measure to prevent degradation of the environment. Where a decision is made to approve an action, conditions attached to an approval may also be measures intended to avoid, mitigate or offset environmental damage that will flow from the approval of the action. Therefore, in making a decision to approve an action, the precautionary principle may be invoked in decisions about the nature and extent of conditions attached to the approval.

175    It follows that in order to succeed on the application below, it was necessary for the appellant to demonstrate that the delegate made findings or reached conclusions that expressly or by inference or implication triggered application of the precautionary principle and there was a failure to ‘take account of’ that principle with respect to a preventative measure of some kind. Relevantly, there was a failure to take account of the precautionary principle in deciding to approve the taking of the action as a whole or a failure in deciding to attach or not to attach a particular condition to the approval that would have been a preventative measure to address a threat about which there was a lack of full scientific certainty.

176    The manner in which the appellant asserted that the delegate had failed to take account of the precautionary principle were particularised in paras [47]-[50] of the amended originating application. These grounds are incorporated by reference into ground 3 of the grounds of appeal which plead, in effect, that the threat of serious or irreversible environmental damage as regards the significant impacts on the Black Cockatoos, Western Ringtail Possums and Banksia and Tuart Woodlands were mandatory relevant considerations of the delegate’s decision. The threat was alleged to be the potential destruction of all species intended to be the subject of offsets before there was an approved offset strategy or offset management plan in accordance with the offset conditions. The failure to take account of or consider the threat of serious or irreversible environmental damage is alleged to arise by way of inference from the delegate’s reasons.

177    As to these matters, the primary judge considered the delegate’s reasons and concluded that he was not able to infer that the delegate had overlooked the possible application of the precautionary principle in this case: J at [73]-[76].

73    As to the delegate’s decision, the first aspect to note is that the decision made was to agree with the department’s recommendation to approve the proposed action. The basis for that recommendation was set out in detail in the recommendation report. Reflecting that course, the reasons identify the respects in which the delegate agreed with the matters in the recommendation report and where the delegate took a different view. In a number of significant respects, the recommendation report identified environmental impacts. Much of the report dealt with assessing the significance of those impacts and compensatory offsets. It identified species and communities that were unlikely to be impacted by the proposed action. The report addressed the factors that were required by s 136 to be taken into account. It addressed the conditions and identified respects in which the proposed conditions, in the view of the department, did not fully manage or resolve the residual impacts.

74    The recommendation report referred to the precautionary principle in the context of considering the impact of the proposed action on the western ringtail possum, but not otherwise. The report stated (para 80) that:

The Department considers it appropriate to apply the precautionary principle and is of the view that an unknown proportion of the 49-72 WRP displaced by clearing will suffer mortality as a result of the action. The recovery plan and conservation advice for WRP identifies that WRP display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs (Attachments F2 and F15). The Department also notes that the recovery plan indicates high mortality experienced by translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers (Attachment F2).

75    As has been noted, the reasons engaged with the views expressed in the recommendation report. When it came to significant environmental impacts, the reasons were as follows:

(1)    as to banksia woodlands, the identified threats were described and the significant impacts described in the recommendation report were accepted (paras 43 47);

(2)    as to tuart woodlands and forests, there was a similar approach was adopted accepted the threats and impacts described in the recommendation report (paras 57 63);

(3)    as to black cockatoos, the reasons identified the relevant recovery plan and other conservation advice for the cockatoos. Again the threats and impacts described in the recommendation report were accepted (paras 74 80);

(4)    as to the western ringtail possum, the reasons identified the relevant recovery plan and other conservation advice (paras 100 101). They then expressed the view that ‘threats to the [possums] are complex, interactive and often population specific’ (para 102). The primary threats were identified (para 102). They observed that the area in which the proposed action was to be undertaken was within a key management zone set out in the recovery plan for the western ringtail possum (para 103). They set out the long-term vision of the recovery plan (para 104). They noted the limited success of population translocation as a means to preserve the western ringtail possum (para 105). They addressed in some detail the impacts in terms that had regard to the precautionary principle (paras 112, 114, quoted below);

(5)    as to the black-stripe minnow, the reasons noted the threats and impacts described in the recommendation report (paras 134, 136);

(6)    as to other species, the reasons expressed agreement with the department that the proposed clearing was not likely to result in a significant impact to other species that were identified as being likely to be affected because they were not present within the proposed action are (para 147); and

(7)    in dealing with ‘Other Relevant Matters’, the reasons began as follows:

In deciding whether or not to approve the taking of the proposed action, I took into account (amongst other matters) the principles of ecologically sustainable development as required under section 391 of the [Act]. In particular, as discussed above, I accepted the Department’s recommendation that the principle applied to the Western Ringtail Possum.

76    Having regard to the form of the reasons and the manner in which they identified and engaged with serious threats I am unable to infer (as I was invited to by FOGC) that the delegate overlooked the possible application of the precautionary principle to aspects of the reasons that concerned impacts on species other than the western ringtail possum. Rather, the reasons as a whole indicate a considered view by the delegate as to where the precautionary principle might be appropriately applied and the application of the principle in that case where there was identified uncertainty as to the likely impact. In all other respects, the delegate approached the matter on the basis that the impacts had been established. No issue arose as to the certainty with which that conclusion may be reached, particularly no issue as to whether by reason of a lack of full scientific certainty the refusal of the approval should be ‘postponed’ (to use the language of the principle as stated in s 391(2)). Therefore, there was no occasion for any lack of scientific certainty to be used as a reason for allowing the approval in accordance with the precautionary principle.

178    No error has been demonstrated in that reasoning of the primary judge with which, with respect, I agree. I would add that, after invitation, the appellant was unable to identify any evidence or material before the delegate involving a lack of scientific certainty (other than with respect to the Western Ringtail Possum) that could have brought into operation the precautionary principle with respect to any of the matters protected. Therefore, there were no findings or conclusions of the delegate from which it could be inferred that she failed to ‘take account of’ or ‘take into account’ the precautionary principle. Further, the offset conditions require Main Roads to submit to the Minister’s satisfaction an offset strategy that meets the requirements of the Offsets Policy. Therefore, preventative measures in the form of offsets intended to counterbalance the residual impacts of the approved action have been attached to the approval. The residual environmental damage that will be caused by the approved action will be offset by preventing environmental damage elsewhere. That suggests that, if and to the extent there is any lack of scientific certainty about the threat of environmental damage, the delegate has taken into account that threat in her decision to approve and attach the offset conditions (in the terms upon which they were attached).

179    Thus, irrespective of whether or not the construction of s 391(1) for which the appellant contends is correct, the appellant has failed to demonstrate, as a matter of fact, that the delegate overlooked the precautionary principle as alleged.

Associate:

Dated: 22 August 2023