CATCHWORDS

 

ADMINISTRATIVE LAW - judicial review - decision to grant licence to export woodchips - whether compliance with Administrative Procedures under Environment Protection (Impact of Proposals) Act 1974 - "proposed action" - whether determination of what is a proposed action is a question of jurisdictional fact - "initiative" - error of law - failure to consider relevant considerations in determining environmental impact - failure to exercise obligation to appoint proponent.

 

ADMINISTRATIVE LAW - judicial review - "decision" - "conduct" -whether an "in-principle" decision is reviewable under Administrative Decisions (Judicial Review) Act 1977.

 

ADMINISTRATIVE LAW - whether an "in-principle" decision can be challenged under s 39B(1) of the Judiciary Act 1903.

 

ADMINISTRATIVE LAW - standing - whether environmental group is a "person aggrieved" under Administrative Decisions (Judicial Review) Act 1977.

 

 

 

Administrative Decisions (Judicial Review) Act 1977 s 5, s 6.

 

Environmental Protection (Impact of Proposals) Act 1974 s 5.

 

Judiciary Act 1903, s 39B.

 

Environment Protection (Impact of Proposals) Administrative Procedures para 1.1, para 1.2.1.

 

 

 

 

Attorney-General for New South Wales v Quin (1990) 170 CLR 1

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589.

North Coast Environment Council Incorporated v Minister for Resources 16 December 1994, unreported, Sackville J.

 

 

 

 

TASMANIAN CONSERVATION TRUST INC v MINISTER FOR RESOURCES & ANOR

No. NG 536 of 1994

 

Sackville J.

10 January, 1995

Sydney.

FEDERAL COURT OF AUSTRALIA           )

NEW SOUTH WALES DISTRICT REGISTRY    )   No. NG 536 of 1994

GENERAL DIVISION                     )

 

 

 

                                  BETWEEN:

 

                                  TASMANIAN CONSERVATION TRUST                                  INC.

                                  Applicant

 

                                  AND:

 

                                  MINISTER FOR RESOURCES

                                  First Respondent

 

                                  AND:

 

                                  GUNNS LTD

                                  Second Respondent

 

 

 

CORAM:        SACKVILLE J.

PLACE:        SYDNEY

DATE:              10 JANUARY, 1995

 

 

                      MINUTES OF ORDER

 

 

THE COURT ORDERS THAT:

 

 

1.   The decision of the first respondent made on or about 10 June 1994 to grant a licence to the second respondent to export woodchips during the period from 10 June 1994 to 31 December 1994 be set aside.

 

2.   The first and second respondents each pay one quarter of the applicant's costs.

 

 

 

 

 

 

 

 

NOTE:         Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FEDERAL COURT OF AUSTRALIA           )

NEW SOUTH WALES DISTRICT REGISTRY    )   No. NG 536 of 1994

GENERAL DIVISION                     )

 

 

 

                                  BETWEEN:

 

                                  TASMANIAN CONSERVATION TRUST                                  INC

                                  Applicant

 

                                  AND:

 

                                  MINISTER FOR RESOURCES

                                  First Respondent

 

                                  AND:

 

                                  GUNNS LTD

                                  Second Respondent

 

 

CORAM:        SACKVILLE J.

PLACE:        SYDNEY

DATE:              10 JANUARY, 1995

 

                    REASONS FOR JUDGMENT

 

The Proceedings

There are three parties to these proceedings, the applicant, the Tasmanian Conservation Trust Inc ("the Trust"); the first respondent, the Minister for Resources ("the Minister"); and the second respondent, Gunns Ltd ("Gunfs").  In October 1993 Gunns applied to the Minister for a licence to export woodchips, pursuant to the Export Control (Unprocessed Wood) Regulations.  On 10 June 1994 the Minister granted Gunns a licence to export up to 200,000 green tonnes of woodchips, obtained from sawmill residues produced in Tasmania.  The licence was expressed to be in force from 10 June 1994 until 31 December 1994.  At the same time the Minister, by letter, granted Gunns "in-principle approval" for the export of up to 200,000 green tonnes of

 woodchips until the end of 1999, subject to the issue of annual export licences.  In these proceedings the Trust seeks orders under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") and under the general law, setting aside both the Minister's decision to grant the licence and the in-principle approval for the export of woodchips until the end of 1999.

The litigation gives rise to a number of issues, including questions of the Trust's standing and whether the in-principle approval is reviewable as a "decision" or as "conduct...for the purpose of making a decision", for the purposes of the ADJR Act.  However, the Trust's principal contention is that the Minister, in granting the licence and the in-principle approval, failed to comply with the requirements of the Administrative Procedures, made pursuant to the Environment Protection (Impact of Proposals) Act 1974 (the "Environment Protection Act").  Mr Basten QC, who appeared with Mr Williams for the Trust, argued that this failure contravened the procedures required by law to be observed in connection with the making of the decisions (s.5(1)(b) of the ADJR Act) and accordingly entitled the Trust to relief.

 

It is, perhaps, appropriate to note that the Court is not concerned with the question of whether, as a matter of policy, an export licence should or should not be granted to Gunns.  This is a matter which the relevant legislation entrusts to the Minister.  The question in the present proceedings is whether the export licence and the in-principle approval were granted in accordance with the procedures prescribed by law and, if not, whether the Trust is entitled to relief by reason of any failure to follow those procedures.

 

The Export Control Regulations

The Export Control Act 1982, s.7, authorises regulations prohibiting the export of prescribed goods unless a licence or approval is granted.  The regulations may provide for the granting of a licence or permission to export such goods, subject to compliance with conditions or restrictions: s.7(3)(b)(ii).  The Export Control (Unprocessed Wood) Regulations declare woodchips to be "prescribed goods": reg.4(1).  Their export is prohibited unless the person exporting holds a licence: reg.5.  An application for a licence must be in writing and lodged with the Department: reg.7(1).  The applicant as required to furnish the Minister with such information as the Ministermay reasonably require: reg.7(2).   Regulation 8 provides as follows:

 

     "Where a person has made an application for a licence and has complied with any request duly made by the Minister under regulation 7 in relation to the application, the Minister shall -

 

     (a)  grant the licence; or

     (b)  by notice in writing given to that person, refuse to grant the licence."

 

A licence granted under reg.8 may specify conditions or restrictions to be complied with by the holder of the licence: reg.9.  An applicant for a licence may apply to the Administrative Appeals Tribunal for the review of a decision by the Minister to refuse a licence or to impose conditions: reg.16(6), (7).

The Environment Protection Act and Administrative Procedures

Section 5(1) of the Environment Protection Act specifies the object of that Act:

 

 

     "The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:

 

     (a)  the formulation of proposals;

     (b)  the carrying out of works and other projects;

     (c)  the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);

     (d)  the making of, or the participation in the making of, decisions and recommendations; and

     (e)  the incurring of expenditure;

 

     by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person."

 

"Environment" is defined to include "all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings".

 

Section 6 empowers the Governor-General to approve administrative procedures for the purpose of achieving the object of the Environment Protection Act.  By s.8 each Minister

 

     "shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister:

 

     (a)  for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister...; and

 

     (b)  for ensuring that any final environmental impact
statement or public environment report formulated in accordance with those procedures, and any suggestions or recommendations made in accordance with those procedures, are taken into account, in matters to which they relate, in the Department administered by the Minister...."

 

 

 

The Administrative Procedures have been approved under s.6. of the Environment Protection Act.  Paragraph 1.2.1 of the Administrative Procedures, which assumed considerable significance in argument, provides as follows:

 

 

     "1.2.1  Subject to these procedures, the action Minister, or a person on behalf of the action Minister, shall, as soon as possible after any initiative has been taken in relation to a proposed action designate a person or Department as the proponent of the proposed action and shall ensure that the Department is thereupon informed of the proposed action and of the name and address of the person or Department so designated."

 

The phrase "action Minister", in relation to a proposed action, means the Minister responsible for the proposed action.  There was no dispute in the present case, assuming that paragraph 1.2.1 was enlivened in relation to Gunns' application for an export licence, that the action Minister was the Minister for Resources. "Proposed action" is defined by paragraph 1.1 to mean

 

 

     "a matter referred to in any of the paragraphs of section 5 of the [Environment Protection Act]."

 

 

The "proponent", in relation to a proposed action, means the proponent of the proposed action under paragraph 1.2.1. 

 

In designating a proponent of a proposed action under paragraph
1.2.1, the action Minister

 

     "shall have regard to the general principle that, as far as convenient, the person or Department responsible for the proposed action should be designated as the proponent" (paragraph 1.2.2).

 

As soon as possible after the Department of the Environment has been informed of a proposed action under paragraph 1.2.1, the proponent must supply to the Minister or the Department for the Environment, such information as is required by the Administrative Procedures, or is otherwise necessary, for the purpose of consideration, by the Minister, of the necessity for an Environmental Impact Statement ("EIS") in relation to the proposed action: paragraph 2.1.  Paragraph 2.2 provides that, for the purpose of paragraph 2.1, the information required, to the extent appropriate in the circumstances, shall include (relevantly) information

 

    

     "(a)summarizing any preliminary planning...or work undertaken in relation to the proposed action and, in particular, describing any feasible and prudent alternative to the proposed action considered by the action Minister for the proponent;

 

      (b)describing the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative..., [and]

 

      (c)indicating the potential impact on the environment of the proposed action...".

 

 

The Department and the Minister for the Environment are required to determine whether an EIS is required: paragraph 3.1.1.  In making that determination, a number of matters are to be taken into account, including whether and to what extent the proposed action may result in a substantial impact on the environment: paragraph 3.1.2.  The proponent is to be informed of any direction to prepare an EIS: paragraph 3.4(a).  If an EIS is required, it is to contain the matters specified in paragraph 4.1. 

 

The Administrative Procedures also provide for a draft EIS to be made available for public comment and to be revised in the light of comments and any report prepared by the Department: paragraphs 6, 7, 8.  Paragraph 9.5 provides as follows:

 

 

     "Subject to, and in accordance with section 8 of the Act, each Minister shall give all such directions and do all such things as can be given or done by that Minister for ensuring that any final environmental impact statement or any public environment report and written comments received in relation to the public environment report...and any suggestions or recommendations made...are taken into account in matters to which they relate."

 

The Environmental Impact Statement

Export of woodchips from Tasmania commenced in 1971.  In 1983, with the imminent expiry of export licences then in force, the Commonwealth, with the agreement of Tasmania, directed that an EIS be prepared under the Environment Protection Act, with regard to the export of woodchips from Tasmania.  Because of the time needed for preparation of the EIS, existing licences were extended until December 1988.

 

In February 1985 the "Tasmanian Woodchip Export Study Group", comprising representatives of woodchip exporting companies and the Tasmanian Forestry Commission, released for public review a draft environmental impact statement ("draft EIS").  The draft EIS itself stated that it had been prepared by representatives of Tasmanian woodchip export companies and the Tasmanian Forestry Commission, in order to comply with the Commonwealth Government's requirements under export licensing powers.  This was presumably a reference to the requirements of the Environment Protection Act and the Administrative Procedures.  The draft also stated that the preparation of the EIS was a "major step" in a procedure designed to ensure that the licensing Minister received the appropriate information to enable a decision to be made in respect of licence renewals.

 

The final EIS, entitled Supplement to the draft Environmental Impact Statement on Tasmanian Woodchip Exports Beyond 1988, was completed later in 1985, after taking into account publiccomments.  In total, 460 submissions were referred to the Study Group, including written comments by the then Department of Arts, Heritage and Environment.  The authors of the final EIS considered the "proposed action", which was identified as the harvesting, transport, processing and export as woodchips of pulpwood from Crown and private forests for a minimum period of 15 years from 1988, subject to certain constraints.  The EIS concluded that the benefits of the proposed action outweighed the disadvantages and that the then current and sustainable quantity of pulpwood available for export was 2,889,000 tonnes per annum, including pulpwood from southern forests.   Licences were to be sought for this quantity of pulpwood for export of woodchips. 
The sources for woodchips included areas of north-west Tasmania.

 

In October 1985 the Department of Arts, Heritage and Environment provided an environmental assessment report, which reviewed the final EIS.  The Department recommended that the final EIS be regarded as complying with the requirements of the Administrative Procedures and that, accordingly, a public inquiry under s.11 of the Environment Protection Act was not necessary.  (Section 11 empowers the Minister to direct that an inquiry be conducted into all or any of the environmental aspects of a matter referred to in any of the paragraphs of s.5.)  The environmental assessment report stated that there was no environmental reason for not granting licences for the export of woodchips from Tasmania, provided that they were subject to certain conditions.  It therefore recommended that the Commonwealth advise the companies concerned that, subject to their meeting their obligations and to compliance with the proposed conditions, there would be no impediment to the issue of licences for 15 years.

 

The Memorandum of Understanding

On 12 June 1986 the Commonwealth and Tasmania signed a Memorandum of Understanding ("MOU") "relating to the giving of approvals by the [Commonwealth Minister for Primary Industry] to the export from Tasmania of woodchips upon certain conditions...".  The MOU recited that

 

     "the Commonwealth has decided that, as a matter of policy but without undertaking any legal obligation, it should permit the export of woodchips from Tasmania generally in accordance with the proposals identified as acceptable within the EIS process" (emphasis supplied).

 

 

Clause 1 of the MOU stated that, following receipt from the Tasmanian Forestry Commission of the "relevant contracts of sale" between the companies and the Commission, the Commonwealth Minister for Primary Industry would give approval or issue licences "as appropriate", over a period of 15 years from 1 January 1989 for the export of woodchips from Tasmania up to the volume available.  Aggregate availability was to be determined in accordance with a formula, intended to define the woodchip equivalent of the aggregate amount of pulpwood available in Tasmania for export on a sustainable yield basis in any one year, including salvage pulpwood from additional sources (cl.3).  The "initial base volume" for 1989 and 1990, unless varied in accordance with the formula, was 2,889,000 tonnes, the same volume as referred to in the final EIS.  The volume could be varied, as appropriate, following any other EIS or any resource assessments carried out by the Commission or following imposition of additional environmental conditions mutually agreed from time to time.

 

In consequence of the Lemonthyme and Southern Forests Inquiry, completed after the MOU had been signed, the Commonwealth and Tasmania signed a further Heads of Agreement in November 1988.  Among other things, the Heads of Agreement recorded an agreement by the Commonwealth to an increase in the sustainable yield of pulpwood from Tasmanian forests to the level assessed by the Tasmanian Forestry Commission, being 790,000 tonnes of pulpwood above the level agreed in the MOU (a total of 3,679,000 tonnes).

 

Gunns' Proposals

In May 1993 a document entitled Integrated Sawmill and Chip Proposal was prepared under the name of Kauri Timber Company Ltd ("Kauri").  The document stated that it was prepared by the Tasmanian Development Authority in consultation with and from information supplied by Gunns Kilndried Timber Industries Ltd (the then name of the second respondent, Gunns), and the Tasmanian Forestry Commission.  Kauri was a subsidiary of Gunns.

 

The report contained a proposal from Kauri for an integrated sawmill and chip operation in the far north-west of Tasmania.  The proposal involved two stages.  The first was for the supply of 200,000 green tonnes, which could be supplied without the need for significant capital expenditure.  Existing residues at Kauri's mill and Gunns' mill could produce 80,000 tonnes, while the additional 120,000 green tonnes could be produced from high grade pulp logs on a second shift.  Stage 2, which required substantial capital expenditure, would produce an additional 300,000 green tonnes.

 

The resource for the proposal was to be pulpwood from the Crown native forests of north-west Tasmania, which contributed about 12 per cent of total eucalypt wood production from Crown forests.  These forests were said to have a large surplus of eucalypt pulpwood.  The forests are in an area of north-west Tasmania known as Circular Head; this area is divided by the Arthur River into a northern and southern section.

 

In August 1993 a further version of the Integrated Sawmill and Chip Proposal was prepared.  This was in substantially the same form as the earlier document, proposing fully integrated harvesting operations from the Circular Head Crown Forest.  However, the proposal was modified to provide for the export of 175,000 green tonnes in Stage 1, with 300,000 tonnes to be exported in Stage 2.  The proposal addressed the priorities for sale of eucalypt pulpwood over a period of ten years.  It noted that Stage 2 would require the construction of a dedicated chipping facility in the Circular Head area and the construction of infrastructure at the seaside township of Stanley, which had a deep water port capable of handling vessels up to 40,000 tonnes.  Stanley is 15 kilometres from Gunns' sawmill operations at Smithton.

 

On 4 October 1993 Gunns applied by letter to the Minister for Resources for the issue of a licence under the Export Control (Unprocessed Wood) Regulations, to permit the export of 475,000 green tonnes per annum of eucalyptus woodchips.  Gunns submitted in support of its application the August 1993 version of the proposal.  The letter stated that, while the proposal could be split into two stages, it was necessary that both should be operational within a reasonable time span to support the capital expenditure required for the construction of a dedicated loading facility at Stanley.  The expenditure was estimated to be $10 million, which the port authority wished to amortise over 10 years.  The letter also stated that apart from existing sawlog residue, and a small volume from another source, the entire volume would be derived from the Circular Head Crown Forest.  Japan was said to be the most likely destination for the woodchips.  Shipping for Stage 1 would take place from Bell Bay, as to 75,000 tonnes per annum.  It is not entirely clear from the letter which port was to be used for the balance of woodchip exports in Stage 1.

 

For reasons not made entirely clear by the evidence, in November 1993 Gunns (by now known as Gunns Ltd) submitted a further Integrated Sawmill Proposal.  This does not appear to have differed significantly from the August 1993 version provided earlier to the Minister.

 

The Assessment Process

On 18 November 1993 the Australian Heritage Commission provided preliminary advice to the Department of Primary Industry and Energy ("DPIE").  On 8 December 1993 it provided advice, under s.30 of the Australian Heritage Commission Act 1975.  The advice was not limited to the application made by Gunns, but covered a number of proposed logging and road operations, including some close to the boundary of the Southern Western Tasmania World Heritage Area.  The Commission expressed the view that the proposals

 

 

     "[would] have a significant adverse effect on the National Estate.  In particular, the Commission is concerned that the national estate values of old growth forest, wilderness and aesthetic quality will be significantly affected by the proposed operations."

 

 

 

The Commission specifically referred to three coupes within the Norfolk Range, which form part of the Circular Head Crown Forest.  It said that although there was some logging in the area, wilderness values could be restored by closing roads.  If logging occurred, wilderness values would be difficult to restore.

 

On 10 January 1994 the Forests Branch of the DPIE wrote to the Australian Heritage Commission, referring to the application by Gunns.  The letter noted that Gunns would use low grade sawlogs, derived almost entirely from State forest coupes already proposed for logging for high grade sawlogs and pulpwood.  Gunns would use wood being exported as woodchips by Boral Ltd or North Broken Hill Ltd or which was burnt for forest regeneration. Thus no additional areas would be logged as a result of the proposal, although the letter noted that some of the coupes were within National Estate places, for which approval for harvesting pulpwood had already been given to North Broken Hill and Boral.  The letter stated that, since the sources of the sawlogs to be processed by Gunns were the same as those considered for licences issued to Boral and North Broken Hill, consistently with the Minister's previous decisions, the Branch considered that the issue of a licence for these areas would have an adverse effect on the National Estate.  Thus an obligation to consult formally with the Australian Heritage Commission arose under s.30 of the Australian Heritage Commission Act 1975.

On 11 February 1994 the Commonwealth Environment Protection Agency ("CEPA") wrote to the DPIE expressing a view on Gunns' proposal:

 

 

     "After consideration of the information provided and the advice of the Australian Heritage Commission, the Australian Nature Conservation Agency and the Environment Strategies Directorate of this Department it is our view that both stages of the proposal are likely to affect the environment to a significant extent and should be referred to this Department in accordance with paragraph 1.2.1 of the Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974.

 

     ...

 

     The extensive forests in north-west Tasmania are now facing growing timber and woodchip production pressures generally, we understand, under arrangements set down in the Tasmanian Forests and Forest Industries Strategy (FFIS) The FFIS has not been endorsed by the Commonwealth.  In particular, it falls short of the conservation provisions of the National Forest Policy Statement (NFPS).  There is no agreed understanding of what constitutes sustainable yield and in view of the likely increase in demand for pulp logs to feed the APPM Hampshire Mill and Gunns proposed developments, the cumulative impacts of the expansion of forest production in the area must be regarded as significant."

 

On 21 April 1994 Mr Dalton, of the Land Resources Division of DPIE wrote to CEPA, to provide further information on Gunns' application.  The letter stated that the proposal was seen by the DPIE as consisting of two stages, which the Minister for Resources could treat separately.  Mr Dalton went on as follows:

 

     "No additional areas of forest will be logged as a result of a decision to issue an export licence to Gunns....  However, additional pulpwood may be removed from some areas currently logged in the Circular Head forests as there is a considerable volume generated by sawlog harvesting that is excess to current demand.

     The wood resource supply for the proposal is covered by the 1985 Environmental Impact Statement on Tasmanian Woodchip Exports beyond 1988 and the consequent 1986 Memorandum of Understanding which met the requirements of the Impact Act... Neither stage of Gunns' proposal will require a geographical expansion of logging above that proposed in the EIS.

    

     ...

 

     The 1985 EIS determined that there was a maximum possible total of 368,000 tonnes per annum of pulpwood potentially available from crown forests in the Circular Head supply zone that will be accessed by Gunns.  During the late 1980s about 300,000 tonnes of pulpwood were being harvested from these forests for export as woodchips.  More recently the Forests and Forest Industry Strategy (FFIS) estimated the pulpwood volume at 294,000 tonnes, with the reduction from the 1986 EIS due to determination of Recommended Areas for Protection in the north west forest areas.

 

     ...

 

     Gunns propose to take 70,000 tonnes per annum from Circular Head forests in Stage 1 and up to a further 300,000 tonnes per annum in Stage 2.  It would appear that Stage 1 volumes are well within available sustainable supply of pulpwood.  Stage 2 resource figures will require further consideration at that time.

 

     If it is assumed that none of the 70,000 tonnes of logs that is expected to be utilised at Smithton in Stage 1 is currently being harvested, this would bring the estimated cut from the Circular Head Forests to around 185,000 tonnes, still well below the EIS estimate and the FFIS estimate of sustained pulpwood yield."

 

Mr Dalton requested confirmation that the information provided was a sufficient basis on which the Minister for Resources could conclude that the first stage of the project should not require designation under the Environment Protection Act.

 

Mr Dalton's request elicited a careful response from CEPA, on 10 May 1994:

     "It remains our view that both stages of the proposal, as well as that part of the proposal to export woodchip through the Port of Stanley, are likely to affect the environment to a significant extent.  Therefore, any decision by your Department or the Minister for Resources which would result in any of the elements of the proposal proceeding, should be referred to the Minister for Environment, Sport and Territories or the Commonwealth EPA for assessment in accordance with the Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974 (the Act).

 

     However, we recognise that the Administrative Procedures give the action Minister the power to determine whether a proposal should be referred for assessment and that, on the information you provided, Stage 1 of the proposal (excluding export through Stanley) would appear to be within the scope of the 1986 Memorandum of Understanding.

 

     On the other hand, changes in forest practice and assessment have occurred in Tasmania over the past 8 years and the proposal would involve a significant change to recent forest practices in the source areas for the mill.  Estimates of sustainable timber yield from the supply area also require urgent review in the light of recent changes in land use in the area.  Further, the Endangered Species Protection Act 1992 has been proclaimed and at least three species listed in that Act are known to exist in the source areas.

 

     Referral of Stage 1 of the proposal would enable us to obtain from the proponent and Tasmanian authorities all of the current information necessary to prepare advice to the Environment Minister on whether further assessment was warranted.  It would also ensure that the Minister for Resources had complied with the Act and Administrative Procedures in an instance where there are some doubts and differences over the environmental significance of the proposal.  As you know, referral of a proposal does not necessarily lead to the requirement of an environmental impact statement or a public environment report.

     ...

     I should draw to your attention advice that was provided in my memorandum of 11 February 1994 to  your Department that it is this portfolio's preferred position that there should be a comprehensive regional assessment of forestry in north west Tasmania in accordance with the provisions of the National Forest Policy Statement.  However, recognising that as Tasmania has not signed the Statement such a broad-based assessment is unlikely in the short term, full consideration should be given through the Administrative Procedures of the Act to this or any other proposal to vary forest uses in the area where a Commonwealth decision is required."

 

 

 

Gunns' May Letter

On 23 May 1994 Gunns wrote to the Minister.  The letter stated that Gunns was "comfortable to have a licence issued for Stage 1 only", but requested that the figure of 175,000 green tonnes be increased to 200,000 tonnes.  The letter also indicated Gunns' willingness to have certain conditions attached to its export licence.  These included a condition that, in addition to current Crown sawlog allocations, Gunns' sawmills would process a minimum of 50,000 cubic metres of low grade logs per annum from Crown forests.

 

The Minister's Advice

On 1 June 1994 the DPIE prepared a minute for the Minister for Resources.  The minute was signed by the Assistant Secretary, Forests Branch, Land Resources Division, and identified Mr Dalton as the contact officer.  The Minute expressed support for

 

     "the thrust of the Gunns' proposal to extract sawlog flitches from pulplogs as it will maximise higher value use of pulplogs and result in increased regional employment."

 

The minute referred to Gunns' indication that Stage 1 could be developed separately from Stage 2 and noted that Stage 2 would require more detailed assessment of the higher level of harvesting and possible impacts on the town of Stanley.  The summary of Gunns' proposal pointed out that Gunns currently sold
80,000 tonnes of woodchips per annum derived from residues from sawing high grade sawlogs to North Broken Hill for export.  Gunns intended to obtain a better financial return by selling these directly.  In addition, Gunns planned to saw low grade logs from areas already being logged and to produce 120,000 tonnes of woodchips.  These logs were said to be currently harvested as pulpwood for export by North Broken Hill or Boral, or else simply wasted.  The minute acknowledged that North Broken Hill could be expected to replace the 80,000 tonnes they currently purchased from Gunns with chips from other sources.  The document did not address what impact, if any, the additional 120,000 tonnes to be exported by Gunns would have on the activities of NBH or Boral.  The minute also stated that the existing woodchip ceiling of 3.67 million tonnes (under the MOU as modified) would accommodate Stage 1 of the proposal.

 

The minute observed that in 1994 Gunns would obtain the wood required for Stage 1 from Crown forests in the Circular Head area, but that harvesting would be limited to coupes already approved for harvesting by other companies.  In subsequent years harvesting for Stage 1 would be subject to normal export licensing approval considerations.

 

The minute referred to an analysis undertaken by the DPIE of the environmental impact and National Estate aspects of Stage 1.  This analysis referred to the correspondence exchanged between the DPIE and CEPA and concluded as follows:

 

 

     "we believe that you could conclude that for the first stage of the proposal, environmental impacts would be consistent with those that have already been assessed for Tasmanian woodchip exports".

 

 

"On this basis", the minute expressed the view that the Minister was not required by the Environment Protection Act (or, presumably, the Administrative Procedures) to designate the proposal for exports of 200,000 tonnes in Stage 1.  The minute also expressed the view that, while a decision to issue an export licence might affect the National Estate, there was no feasible and prudent alternative.  In this respect the minute noted that the Gunns proposal would not result in a harvesting of additional coupes to those already approved for forest operations in 1994.

 

The minute also noted that long term approval had been given to woodchip exporters, subject to annual licences, and that these had been linked to the 1985 EIS and the 1986 MOU.  Gunns' operations under Stage 1 were consistent with the EIS and the MOU.  The minute expressed approval for a long term export facility for Gunns

 

     "but, given the Government's policy position concerning the export of woodchips beyond the year 2000, we suggest that such a long term facility be approved only until 1999".

 

 

The minute recommended that the Minister determine that a decision to issue a licence to Gunns to export woodchips did not require him to designate a proponent under the Environment Protection Act and that any significant environmental impacts had
been taken into account in the 1985 EIS, implemented under the 1986 MOU.  The minute also recommended that the Minister agree in-principle to approve the export of up to 200,000 tonnes of woodchips per annum until the end of 1999 and that the Minister agree to issue a licence to export up to 200,000 tonnes of woodchips during the remainder of 1994.

 

The Licence and Approval

By an undated letter, which was in fact sent on 10 June 1994, the Minister for Resources advised that he had

 

     "granted in-principle approval to allow [Gunns] to export up to 200,000 green tonnes of hardwood chips derived solely from sawmill residues each year until the end of 1999, subject to the issue of annual export licences.

 

     This in-principle approval is subject to the requirements of the attached [MOU].  The main purpose of that agreement is to implement Commonwealth recommendations flowing from the [EIS]."

 

 

The letter also enclosed the licence under reg.8 of the Export Control (Unprocessed Wood) Regulations.  The licence was for the period commencing 10 June 1994 and ending on 31 December 1994.  The volume of woodchips was not to exceed 200,000 green tonnes unless a variation were to be authorised specifically in accordance with the MOU.  Source material was limited to sawmill residues and exports could take place only from Bell Bay or Burnie.  The licence contained a number of conditions limiting access to logs in areas entered on the National Estate or in "Crown temperate rainforest".  It also specified conditions designed to provide for "environment protection".

The Trust

Because an issue of standing has been raised in this case, it is convenient to summarise the evidence relating to the Trust and its activities.  The Trust was formed in 1968 and incorporated in 1976 under the Associations Incorporation Act 1964 (Tas.).  It is the largest and only statewide conservation organisation in Tasmania.  The Trust has about 450 members.  The objects of the Trust include the following:

 

     "(a)to make every effort to ensure that the land, water and other resources of the Earth are used with wisdom and foresight and that competing demands on them are resolved in the best long term interests of this planet;

 

     (b)  to foster and actively to assist in the conservation of the distinctive vegetation and fauna and important natural and archaeological features of Australia, and in particular, Tasmania, and to promote and protect the cultural heritage of Australia, and in particular Tasmania;

 

     (c)  to provide advice and assistance in respect of specific conservation projects and undertakings, including research and management of National and other parks, reserves and sanctuaries."

 

 

Mr Lynch, a director of the Trust, gave evidence that the Trust had been identified by the Commonwealth as the representative Tasmanian conservation organisation, through which the Commonwealth deals on conservation issues.  The Trust is one of eight members of a forum known as the Peak Conservation Organisation.  This is a group established in 1983, by the then Commonwealth Minister for the Environment and consists of peak state conservation bodies and two national conservation bodies.  The Trust has been a member since the inception of the Peak
Conservation Organisation.  The forum is funded by the Commonwealth and meets with the Minister four times a year to discuss conservation issues.

 

The Trust is represented on a large number of government committees, advisory groups and task forces.  These include the Cradle Mountain Advisory Committee, which is intended, according to its draft guidelines, to improve communications between the State Department of Parks, Wildlife and Heritage and park users, with particular emphasis on local north coast and north-west communities.  Other bodies on which the Trust is represented include the Environment Protection Advisory Committee, the Australian Heritage Commission Near Pristine Wild River Committee and the Arthur-Pieman Protected Area Advisory Committee (this area includes some of the north-west forests).

 

The Trust receives annual grants under the program of Grants to Voluntary Conservation Organisations, now administered by the Department of Environment Sport and Territories.  The aim of this program is

    

 

     "to empower the community through its envirofmental organisations to contribute to the achievement of the Commonwealth's objectives of promoting nationally and internationally the protection and enhancement of ecological processes and natural resources as essential components of the well-being of current and future generations."

 

 

The Trust has received at least $30,000 for each of the pastfive years under the program.  For 1994 its grant was $34,096, while
in 1993 it received $43,325, including a special grant for computer facilities.

 

The Trust has administered approximately 20 National Estate grants over the last 10 years.  The Trust's annual reports for 1992/93 and 1993/94, which were in evidence, showed that it received $130,281 in National Estate income in 1992/93 and $75,201 in 1993/94.  The Trust also has received government grants for a number of other projects, some of which relate to forestry issues.  For example, in 1990/91 the Trust received $9,000 from the Department of Arts, Sport, the Environment, Tourism and Territories for research and publication of information materials on the contribution of Australian forestry operations to the greenhouse effect. 

 

In August 1994 the Trust was notified by the Department of Environment, Sport and Territories that the Trust would receive a grant of a maximum of $25,000 to assist in the identification of old-growth and wilderness forest areas likely to be of high conservation value.  This project was to be carried out as part of the Commonwealth's consideration of export woodchip licences for 1995 and was to provide evidence of the special conservation values of areas proposed for logging.  In 1994 the Minister for Environment approved a proposal from State Conservation Councils, including the Trust, to fund a project entitled National Plantations: Environment, Industry Development and Employment.  The project is intended to provide a nation-wide picture of Australia's plantation base and to identify state by state industry development and employment opportunities supported both by industry and conservationists.  The project has been supported by a grant of $166,563, of which $15,766 is payable in respect of the Trust's activities.

 

The 1993/94 annual report of the Trust showed a total income of $254,830, of which $7,404 was derived from subscriptions and $15,951 in donations.  Apart from the Commonwealth grant of $34,096, most of the other income was made up of grants for particular projects.  The total income for 1993/94 had decreased from a total of $607,359 in 1992/93.   This was largely explained by a different treatment of "preference donations" ($289,521 in 1992/93 and Nil in 1993/94), which were apparently moneys held in trust for other organisations.  The Trust has paid staff, although the evidence did not make entirely clear how many staff were employed or engaged in 1993/94.  However, the 1993/94 annual report showed that "directors' contract expenses" were $27,438 and that salaries and wages amounted to $25,191.  I infer from the documentary evidence that additional expenses were incurred for staff engaged in particular projects.

 

In 1987 the Trust was one of three conservation groups known as the Combined Environment Groups ("CEG") that participated before the Commission of Inquiry into the Lemonthyme and Southern Forests.  For this purpose the CEG received funding from the Commonwealth and used the funds to engage full time staff and brief counsel.  In 1988 CEG made a detailed final submission to the Inquiry.  In the same year the Trust published a research report entitled The Wet Eucalypt Forests of Tasmania, a study that included forests in the north-west of Tasmania.  The project was supported by funds from the Australian Heritage Commission.  In 1990 a report was prepared by consultants for CEG, entitled Setting the Limits: The Environmental Impacts of Steep Country Logging.  This study was based on extensive field surveys of logging coupes.  Later in 1990 CEG prepared what was described as A Preliminary Forests and Forest Industry Strategy for Tasmania.

 

The Trust has made detailed submissions on conservation matters, including forestry issues.  In May 1985 the Trust, together with the Wilderness Society and the Forest Action Network, lodged a substantial submission on the draft EIS referred to earlier in these reasons.  In March of that year the Trust, together with the Australian Conservation Foundation, published a report entitled Forest Industry Strategy for Tasmania, arguing for an industry plan to govern the issue and renewal of woodchip export licences.  As part of the informal alliance known as the Forest Action Network, the Trust, in 1985, participated in the preparation of a book entitled Woodchipping: The Real Impact, which considered the impact of the forestry industry on the natural environment. 

 

More recently, the Trust has made submissions to the Tasmanian Forestry Commission and the Minister for National Parks and Wildlife in relation to draft management plans for various forests in the State.  The 1992/93 annual report of the Trust showed that seven submissions had been made by the Trust in that year, of which three appear to concern forestry management issues.  The 1993/94 report identified 21 submissions, of which at least five appear to concern forest management or other forest issues.  The same report indicates that the Trust was represented at a "National Forest Summit", in which conservation groups agreed on a conservation strategy, directed in part at the preservation of forests.  The Trust has been active in promoting areas of Tasmania for World Heritage nomination and in lobbying the Commonwealth to make woodchip export licences conditional on the avoidance of high conservation value forests.

 

The Minister's Response to the Trust

On 15 June 1994 the Trust wrote to the Minister, stating that it was "shocked" and "dismayed" by his recent announcement approving the export of woodchips.  The Trust requested that the Minister provide a statement in writing of his reasons for the "decision"; pursuant to s.13 of the ADJR Act.  The Minister, in response, by a letter received on 24 August 1994, disputed that the Trust was a person aggrieved under the ADJR Act.  Nonetheless, the Minister made the following observations:

 

 

     "The Australian Heritage Commission (AHC) was consulted regarding Gunns' application and confirmed that the previously provided section 30 analysis for proposed logging operations in Tasmanian national estate areas in 1994 and the AHC comments on the analysis were applicable to Gunns' proposal.  I concluded that any adverse impacts on the national estate associated with the export of woodchips by Gunns will be minimised if proposed forest operations are carried out in accordance with the Tasmanian Forest Practices Code.

     You note that you understand Gunns' proposal has three stages, the latter two involving the export of an additional 300,000 tonnes per year and export through Stanley.  Approval has not been given for Gunns to export woodchips through Stanley.  I have made it clear to the company that any expansion of Gunns' activities involving either an increase in the volume of woodchips for export or shipment through ports other than Burnie or Bell Bay would be subject to further assessment in accordance with Commonwealth legislative responsibilities.

 

     It was not necessary to designate Gunns as a proponent under the Environment Protection (Impact of Proposals) Act 1974 as their export proposal did not raise any issues of environmental significance not already taken into account under the current environmental impact statement (EIS) on the Tasmanian woodchip industry.  The Commonwealth requirements which flow from that EIS are embodied in a Memorandum of Understanding between the Commonwealth and State (MOU) to which the export woodchip industry, including Gunns, must conform as a condition of export approval."

 

The Trust's Submissions

The steps in Mr Basten's argument were as follows:

 

(i)       The Minister for Resources was obliged, pursuant to paragraph 1.2.1 of the Administrative Procedures to designate a person as the proponent if

 

          (a)  an initiative had been taken;

          (b)  in relation to a "proposed action".

 

(ii)      The "proposed action" in the present case, having regard to the definition in paragraph 1.1, was constituted by the woodchipping activities to be undertaken by Gunns, pursuant to the licence granted to it.  These included logging and transportation of timber for woodchip exports; the construction of additional milling and chipping facilities; the transportation of woodchips; and the construction of infrastructure at the port of Stanley.  Although Mr Basten's written submissions did not identify which sub-section of the Environment Protection Act was attracted, on this interpretation presumably s.5(1)(b) would be invoked ("the carrying out of works on other projects").  Alternatively, the "proposed action" was the grant of the licence by the Minister pursuant to the Export Control (Unprocessed Wood) Regulations.  This was the making of a decision within the meaning of s.5(1)(d) of the Environment Protection Act.

 

(iii)     For the purposes of the hearing before me, Mr Basten accepted that Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 (FCA/FC) was binding.  That case, as Mr Basten acknowledged, held that a matter could be a proposed action, only if it were within one of the paragraphs of s.5(1) of the Environment Protection Act, and it affected the environment to a significant extent.  Mr Basten reserved his right to question the correctness of that decision elsewhere.

 

(iv)      The determination of whether a matter was a "proposed action" in the sense outlined above was an issue for the Minister, provided that his decision was not vitiated, for example, by failure to take into account a relevant consideration or by manifest unreasonableness.

 

(v)       The Minister's decision in the present case that there was no proposed action, and thus no occasion to designate a proponent, was vitiated by error.  In particular, the Minister misdirected himself by declining to consider whether the proposed activities of Gunns affected the environment to a significant extent.  The error arose because the Minister decided not to designate Gunns as a proponent on the ground that the export proposal did not raise any issues of environmental significance not already taken into account in the 1985 EIS, the requirements of which were embodied in the MOU.

 

(vi)      In the alternative to (iv), the determination of whether a matter was a proposed action was a question of "jurisdictional fact", which the Court had to decide for itself on the evidence presented at the hearing.  On the evidence, regardless of whether the proposed action was constituted by the physical activities to be undertaken by Gunns or the decisions made by the Minister, the evidence demonstrated that the action affected the environment to a significant extent.  Thus, on this alternative approach, there was a proposed action.

(vii)         Whether the proposed action was constituted by the activities to be undertaken by Gunns or by the Minister's decision, an "initiative" had been taken in relation to the proposed action within the meaning of paragraph 1.2.1 of the Administrative Procedures.  In submissions, the initiative was identified as Gunns' proposal made first in May 1993, amended in August 1993 and November 1993, together with the letter of October 1993 and the letter of 23 May 1994.

 

(viii)    The decision by the Minister to grant Gunns a licence to export woodchips was a "decision" to which the ADJR Act applied.  Furthermore, the grant of in-principle approval to Gunns to export up to 200,000 tonnes of woodchips until the end of 1999, subject to the issue of annual export licences was a decision of the kind reviewable under s.5 of the ADJR Act.  Alternatively, it was conduct engaged in by the Minister for the purpose of making a decision and therefore was reviewable under s.6(1)(b) of the ADJR Act.

 

(ix)      Alternatively to (viii), the Trust was entitled to relief under the general law and the Court had jurisdiction to entertain the application under s.39B(1) of the Judiciary Act 1903.

 

(x)       The Trust was a person aggrieved by the Minister's decision or, alternatively, by the Minister's conduct and thus had standing to claim relief under the ADJR Act.  Alternatively the Trust had standing under general law principles to claim relief under s.39B(1) of the Judiciary Act 1903.

 

The Respondent's Submissions

Mr Heydon's submissions on behalf of the Minister, in brief, were as follows:

 

(i)       There was an ambiguity about the "proposed action" referred to in paragraph 1.2.1 of the Administrative Procedures.  It could refer to the proposed conduct of woodchipping activities by Gunns, or to the grant of the export licences by the Minister.   It was not necessary, for the purposes of the argument, to choose between the competing interpretations.

 

(ii)      As Mr Basten had conceded, Australian Postal Corporation v Botany Municipal Council established that a proposed action was within paragraph 1.2.1, if it affected the environment to a significant extent.

 

(iii)     The question of whether the proposed action affected the environment to a significant extent was a "jurisdictional fact" to be objectively established on the evidence.

 

(iv)      On the evidence, the proposed action did not affect the environment to a significant extent, largely because the woodchips were to be derived from coupes already subject to logging and from pulpwood that otherwise would have been purchased by North Broken Hill or Boral.  In this connection, Mr Heydon submitted that the proposed action was Stage 1 of Gunns' proposal, or the contemplated approval for Stage 1.

 

(v)       If the question was one for the Minister to decide, subject to review on administrative law grounds, the Minister had not taken any irrelevant consideration into account.  The Minister's letter of 24 August 1994 was one that was "not ideally worded", but did not demonstrate any error.

 

(vi)      In any event, nothing that Gunns did in 1993 constituted an "initiative" within the meaning of paragraph 1.2.1 of the Administrative Procedures.  The application by Gunns, and indeed those made by other woodchipping companies, were all carried out under the umbrella of the 1985 EIS and the later MOU.

 

(vii)     While the decision to grant a licence was a "decision" for the purposes of s.5 of the ADJR Act, the in-principle approval granted by the Minister to Gunns to export up to 200,000 tonnes of woodchips until the end of 1999 was not.

(viii)    The Trust was not a "person aggrieved" for the purposes of the ADJR Act and did not have standing under general law principles.

 

(ix)      The Trust could not rely on s.39B(1) of the Judiciary Act 1903, as there was no application for mandamus, prohibition or an injunction against an officer of the Commonwealth.

 

Mr Heydon specifically disavowed any reliance on discretionary reconsiderations, should the Trust otherwise establish its entitlement to relief.  Mr Hale joined in that disavowal.  Also, Mr Heydon did not dispute that, if the Minister was obliged and had failed to designate a proponent under the Administrative Procedures, there had been a contravention of the procedures required by law to be observed in connection with the challenged decisions made by the Minister (assuming those decisions were otherwise amenable to review under the ADJR Act).  No point was taken about the fact that, on Mr Basten's principal argument,the Minister had failed to take into account relevant considerations in deciding not to designate a proponent in relation to Gunns' proposed action. Such a failure does not of course necessarily mean that the Minister could not properly have reached the same decision on that issue, had he considered all relevant material. Mr Heydon appeared to accept that if the Minister's decision not to designate a proponent was erroneous (because he had failed to consider relevant material), the Minister had contravened the procedures required by law to be observed in connection with the decision to grant an export licence.

 

Mr Hale, on behalf of Gunns, adopted Mr Heydon's submission.  Mr Hale helpfully elaborated on certain of those submissions, but did not raise additional issues beyond those I have identified.

 

What was the "Proposed Action"?

As the argument developed, none of the parties suggested that it made a significant difference to the analysis whether "the proposed action" (if any), for the purposes of paragraph 1.2.1, was the proposal for physically logging (or harvesting), chipping and exporting wood, or the proposal that the Minister should grant a licence to authorise the export of woodchips produced as a result of the physical activities.  Nonetheless, I think it is useful to address the issue.

 

The text of the Administrative Procedures and the Environment Protection Act contains indications supporting each view.  There was no need to consider the issue in Australian Postal Corporation v Botany Municipal Council, since the proposed physical activity in that case - the construction of a post office - was itself the action of a Commonwealth authority.  The definition of "proposed action" in the Administrative Procedures is:

 

     "a matter referred to in any of the paragraphs of s.5 of the Act".

 

If attention is confined to the sub-paragraphs of s.5(1), a proposed action could be, for example, either "the carrying out of works" (s.5(1)(b)) or "the making of decisions" (s.5(1)(d)). These might be undertaken, in a particular case, by the Commonwealth itself or by a corporation acting independently of the Commonwealth.  However, as Australian Postal Corporation v Botany Municipal Council (to which I shall return shortly) shows, the definition of "proposed action" requires reference to be made to the language of s.5(1), beyond the specific terms of sub-paragraphs (a) to (e).  Unless that were so, a "proposed action" would not have to be one that "[affects] the environment to a significant extent". 

 

The sub-paragraphs of s.5(1) are qualified by the closing words of the sub-section:

 

     "by or on behalf of the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person".

 

 

As Mr Heydon pointed out, these words tend to suggest that the "proposed action" has to be by the Commonwealth on its behalf.  He contended that, where the Commonwealth's only proposed involvement is to grant a licence, the language of s.5(1) indicates that the "proposed action" is the grant of the licence.

 

On the other hand, the Administrative Procedures employ language that, although not entirely unequivocal, suggests that a "proposed action" involves physical activities likely to have an effect on the environment.  Paragraph 2.1, for example, requires the designated proponent to supply information required by the Administrative Procedures, or that is otherwise necessary to allow consideration of whether an EIS should be prepared "in relation to the proposed action".  The information required includes summaries of planning or work undertaken in relation to the proposed action and a description of any feasible alternative to the proposed action (paragraph 2.2(a)).  The information is to describe the environment likely to be affected by the proposed action and to indicate the potential impact on the environment (paragraph 2.2(b), 2.2(c)).  In addition, the information must state any investigations or studies intended to be made of the possible impact on the environment of the proposed action (paragraph 2.2(e)).   In determining whether an EIS is required, the Minister is to take account, inter alia, whether "the proposed action may result in" the transformation of a substantial area, a substantial impact on the eco-systems of an area or an adverse effect upon an area (paragraph 3.1.2).  An EIS must state the objectives of the proposed action, analyse the need for it, describe the proposed action and include technical data adequate to permit an assessment of the impact on the environment of the proposed action (paragraph 4.1).

 

In a case where a corporation seeks Commonwealth approval for a project, the phrase "proposed action", in context, seems to me to be intended to describe the project rather than the approval for it (or for some part of it).  The grant of an approval, for example in the form of a licence to export woodchips, does not necessarily have any impact on the environment.  For example,the licensee may never act upon the approval.  But a proposal for a physical undertaking, such as logging and export of timber, if carried out, must have some effect on the environment, although not necessarily a substantial one.  A requirement that consideration be given to the extent to which a "proposed action" will transform an area, or have an impact on eco-systems, is more readily understood, in my opinion, as referring to the contemplated physical activity, rather than the contemplated approval.  Similarly, the requirement to consider "any feasible or prudent alternative" to the proposed action more naturally refers to an alternative to the physical undertaking, rather than to any licence authorising the undertaking.

 

Accordingly, I think that the better view is that, in the circumstances of the present case, if there were a "proposed action" for the purposes of paragraph 1.2.1 of the Administrative Procedures, it was the proposal by or on behalf of Gunns in its application of October 1993, identifying its intended activities in obtaining and processing logs and transporting and exporting woodchips.

 

Requirement that Proposed Action have a Significant Effect on the Environment

As I have noted, Mr Basten, while formally submitting that Australian Postal Corporation v Botany Municipal Council was incorrectly decided, accepted that I was bound by it.  In that case, the Full Court (Morling, Jenkinson and Hill JJ.) held that there could be a "proposed action" within the Administrative Procedures only if there was a matter within one of the sub-paragraphs in s.5(1) of the Environment Protection Act, and the matter affected the environment to a significant extent.

 

The case itself involved a proposal by Australia Post to build a post office.  The Council challenged under the ADJR Act the decision of Australia Post to proceed with the calling of tenders for the new post office, on the ground that the decision had been made without regard to the requirements of the Administrative Procedures.  The Court dealt with the question of "proposed action" this way (at 93):

 

     "Little, if any, attention appears to have been directed at the trial to the question whether Australia Post's proposal to build the post office fell within the definition of a "proposed action" within the meaning of par 1.1 of the Administrative Procedures Order.  Unless it fell within that definition, the provisions of the order had no application to it.  As we have indicated, a "proposed action" is a matter referred to in any of the paragraphs of s.5 of the Environment Protection  Act.  In this respect, it is critical to note that it is only "matters affecting the environment to a significant extent" which are referred to in s 5.  Thus it is not an activity of a kind referred to in par (a) to par (e) of subs 5(1) which is a "matter" for the purposes of that section or for the purposes of the definition of "proposed action".  An activity of a kind referred to in par (a) to par (e) must affect the environment to a significant extent before it comes within the purview of the section.  That this is so seems to us to appear plainly from the terms of the section.  To read the section in any other way would mean that the formulation of any proposal or environment, would be within the purview of the section and of the expression "proposed action".  This cannot have been intended by the legislature."

 

 

Mr Basten offered some criticisms of this passage, but recognised that the criticisms could be pursued if at all, only on appeal.  Accordingly, it is unnecessary to consider them further here.  It follows that a "proposed action" is within paragraph 1.2.1 of the Administrative Procedures only if the matter affects the environment to a significant extent.

 

Jurisdictional Fact?

On one view of para 1.2.1 of the Administrative Procedures, the obligation on the Minister to designate a proponent arises (assuming the other conditions are satisfied) only if the proposed action, as a matter of fact, affects the environment to a significant extent.  On another view, the question is one for the Minister to determine, but his or her determination is subject to review on the grounds provided in the ADJR Act.  Mr Heydon, supported by Mr Hale, submitted that the first approach was correct, as a matter of construction.  Mr Basten was more equivocal, but as I understood him, preferred the second approach.

 

In Australian Postal Corporation v Botany Municipal Council, the Full Court addressed the question of whether it was obligatory for Australia Post, which was treated as a person acting on behalf of the action Minister, to comply with the Administrative Procedures.  The Court did so, as Mr Basten and Mr Heydon agreed, in a manner inconsistent with that issue being one of "jurisdictional fact".  The Court said this (at 93):

 

 

     "In order to determine whether it was obligatory on Australia Post to comply with the terms of the Administrative Procedures Order it is first necessary to determine whether it was open to it, and to Mr Broadbridge on its behalf, to regard the building of the post office as a matter not affecting the environment to a significant extent.  If that view was reasonably open on an objective assessment of the matter, and was in fact taken by Mr Broadbridge, it was not obligatory on Australia Post to observe the provisions of the Administrative Procedures Order.

 

     There being no statutory indication of the weight to be given to any particular consideration, it was for Australia Post and Mr Broadbridge to determine the appropriate weight to be given to the various factors which had to be taken into account when deciding whether the post office would affect the environment to a significant extent: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.... It cannot in our opinion be said, on the facts of this case, that a decision that the building of the post office would not affect the environment to a significant extent was manifestly unreasonable or was so unreasonable that no reasonable person could have come to it...."

 

By directing attention to whether the decision was manifestly unreasonable, the Court, at least implicitly, did not accept that the Administrative Procedures required an objective assessment of the impact of constructing the post office on the environment.

 

Mr Heydon contended that no contrary argument was put in the Full Court and that, therefore, the assumption made by their Honours about the construction of the Administrative Procedures carried no weight as a precedent.  Although it is not entirely clear from the report of the case, it seems that Mr Heydon is correct in suggesting that the issue was not the subject of argument.  I am also prepared to accept that the absence of argument deprives the case of what otherwise would be its binding force on this issue. See R. Cross and J.W. Harris, Precedent in English Law, 4th ed, 158-161; Baker v The Queen [1975] AC 774, at 778; Archer v Howell (1992) 7 WAR 33 (S Ct WA) at 46, per Malcolm C.J.  Nonetheless, all members of the Full Court, having identified a question arising from the definition of "proposed action" which had not been considered at the trial, specifically approached the question in a manner inconsistent with that put forward by Mr Heydon.  I do not think that this can or should be wholly disregarded.  In my view, the assumption made by the Full Court (if that is a correct description), is of persuasive value in construing paragraph 1.2.1.

 

Nonetheless, if I were convinced by Mr Heydon's argument that the assumption made by the Full Court was wrong, I would be prepared to depart from that assumption in construing paragraph 1.2.1.  However, I think that the preferable view is that paragraph 1.2.1, when read with the definition of "proposed action", vests in the Minister the decision as to whether the proposed action affects (or, more accurately, is likely to affect) the environment to a significant extent, subject to review on administrative law grounds.

 

It is quite true, as Mr Heydon pointed out, that paragraph 1.2.1 does not specify that a proponent must be designated if, for example, in the opinion of the Minister, a proposed action affects the environment: compare Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 317 (FCA/FC), at 322-323.  But, equally, the text of the provision is much less clear cut than in cases where courts have held that legislation requires objective facts to be established.  For example, in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 (FCA/FC), the Court was concerned with s.16(1)(b)(ii) of the Migration Act 1958, as it then stood.  This provided that a person was deemed to be a prohibited immigrant if he or she produced to an officer

 

 

     "a passenger card that contains information that is false or misleading in a material particular."

 

 

 

The Court declined to read the sub-paragraph as if it included the words "in the opinion of an officer" or, alternatively, "to the knowledge of the person".  As Lockhart J. said (at 601-602), the sub-paragraph meant what it said: it applied if the statements made by the person were in fact false or misleading in a material particular.

 

In the present case, the requirement that the proposed action affect the environment to a significant extent is not specified in terms by para 1.2.1.  Rather it is incorporated, somewhat indirectly, by the cross-reference to s.5(1) of the Environment Protection Act in the definition of "proposed action".  The operative event, which enlivens the Minister's obligation under paragraph 1.2.1, is the taking of an "initiative...in relation to a proposed action".   "Proposed action" is defined to mean a matter referred to in any of the paragraphs of s.5 of the Environment Protection Act.  For present purposes Australian Postal Corporation v Botany Municipal Council decides that an activity of a kind referred to in sub-paragraphs (a) to (e) of s.5(1) must affect (or, as I have said, be likely to affect) the environment to a significant extent, before it is within the purview of the Environment Protection Act or of the
Administrative Procedures.  In my opinion, this structure and language does not compel the conclusion that the Administrative Procedures were intended to apply whenever the objective facts established that the proposed action affects the environment to a significant extent, as distinct from when the Minister makes a determination that the environment would be so affected.

 

It is to be remembered that the determination whether or not to designate must be taken as soon as possible after the initiative, suggesting that the Minister is not intended to undertake a comprehensive examination of the facts.  Indeed, the Administrative Procedures contemplate that a comprehensive examination may be undertaken through the preparation of an EIS or other processes to be set in train by the Minister for the Environment.  It seems to me that the jurisdictional fact approach would create some practical difficulties.  If, for example, the Minister determines that a proposal does not affect the environment to a significant extent, but plainly overlooks relevant material, the determination (assuming it to be reviewable under the ADJR Act) could be successfully challenged only by adducing evidence objectively establishing that the proposal does have that effect.  Such proceedings might be prolonged and complex and canvass in a judicial forum the very questions for which the Administrative Procedures specifically establish processes.  Equally, if the Minister decides that a proposal does affect the environment to a significant extent, the decision, even if based on a consideration of all appropriate material, could be challenged in the Court as factually
incorrect.  Again, this would result in the Court considering at length many of the very issues that would be taken into account by the Minister for the Environment, in determining whether an EIS is required, and, if it is, in the preparation of the EIS itself.

 

This does not seem to me a particularly sensible result, nor one in keeping with the overall framework and specialised procedures created by the Administrative Procedures.  The position in Naumovska was different since, as Lockhart J. explained (at 601), there are good policy reasons relating to the practicalities of the immigration process for the interpretation adopted in that case.  See also at 590-591, per Fox J.; Hsiao v Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330 (FCA/Einfeld J.), at 337-338.  Accordingly, in my opinion, paragraph 1.2.1 of the Administrative Procedures vests in the Minister the authority to determine whether a proposal affects the environment to a significant extent.  Such a decision is subject to review on the grounds specified in the ADJR Act.

 

Paragraph 1.2.1 - Error of Law

On the assumption that it was a matter for the Minister whether the proposed action affected the environment to a significant extent, Mr Basten submitted that the Minister's determination in this case was erroneous in law.  Mr Basten contended that the Minister's letter, received by the Trust on 24 August 1994, demonstrated that the Minister had failed to take into account relevant considerations in making his determination.  The critical paragraph (to which I have already referred) reads as follows:

 

     "It was not necessary to designate Gunns as a proponent under the Environment Protection (Impact of Proposals) Act 1974 as their export proposal did not raise any issues of environmental significance not already taken into account under the current environmental impact statement (EIS) on the Tasmanian woodchip industry.  The Commonwealth requirements which flow from that EIS are embodied in a Memorandum of Understanding between the Commonwealth and State (MOU) to which the export woodchip industry, including Gunns, must conform as a condition of export approval."

 

 

Mr Basten argued that this demonstrated that the Minister failed to consider the effect of Gunns' proposal on the environment, because he had taken the view that any such impact had previously been considered in the 1985 EIS and the 1986 MOU.  Mr Basten submitted that, while this was a factor that the Minister for the Environment could take into account in determining whether to require a further EIS, the Minister for Resources was required simply to make a judgment as to whether the proposed action affected the environment to a significant extent.  The Minister's approach, as revealed in the letter, avoidedaddressing the critical question, because he took on a function that was properly the province of the Minister for the Environment.

 

Mr Heydon accepted that the letter of 24 August 1994 was not "ideally worded", but submitted that it should be interpreted as meaning that there was no significant environmental impact, beyond that permitted by the MOU.  In other words, any environmental impact was within contemplated parameters.  However, even on that interpretation the letter shows, in my opinion, that the Minister was diverted from the relevant inquiry.  The issue was whether the proposed action (either the activities proposed by Gunns or the proposed issue of the export licence to Gunns) affected or was likely to affect the environment to a significant extent.  That is quite a different inquiry from one which investigates whether the effect on the environment of the proposed action has been sufficiently considered by an earlier assessment, or is consistent with standards laid down in an earlier document.   There was ample material before the Minister to suggest that both stages of the proposal were likely to affect the environment to a significant extent.  This material included, for example, the views expressed by CEPA in its letter of 11 February 1994, and repeated in the letter of 10 May 1994.  By taking the approach he did, the Minister did not purport to make a judgment as to whether the views expressed on this issue were or were not well founded: that is, he did not consider whether the proposed action to be undertaken by Gunns affected or would affect the environment to a significant extent.  Rather, he addressed the question whether the environmental impact of the proposed action was substantially different from that of proposals previously assessed in the course of preparing the 1985 EIS.  It follows that the Minister failed to take account of relevant matters in making his decision not to designate a proponent for the purposes of paragraph 1.2.1 of the Administrative Procedures.

 

As an alternative submission, Mr Heydon invited me to ignore the Minister's letter.  However, there would be little point in doing so, since the minute to the Minister of 1 June 1994, which preceded the Minister's decision not to designate a proponent, adopts a substantially identical approach to that in the letter.  The minute advised the Minister that he could conclude that for the first stage of the Gunns' proposal

 

     "environmental impacts would be consistent with those that have already been assessed for Tasmanian woodchip exports".

 

In other words, the Minister was advised that it was unnecessary to consider whether the environment would be affected to a significant extent, because the environmental impact had previously been assessed.  This advice explains why, in my opinion, the Minister was diverted from the correct inquiry and why the August 1994 letter accurately described the decision-making process that had taken place.

 

I therefore conclude that the Minister erred in law in determining that there was no occasion to designate a proponent of the proposed action, under the terms of paragraph 1.2.1 of the Administrative Procedures.

 

Effect on the Environment

The conclusions I have reached make it unnecessary to consider whether the proposed action, as a matter of fact, affected or was likely to affect the environment to a significant extent.  I shall, however, deal with this issue, although more briefly than otherwise would be the case.

The evidence on the effect of Gunns' proposals was documentary, mostly in the form of proposals or applications prepared by or on behalf of Gunns, and other documents available to the Minister.  There was no expert evidence of the kind that is frequently adduced in cases raising comparable issues: compare, for example, Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 (LEC NSW/Cripps J.), a case under s.112 of the Environmental Planning and Assessment Act 1979 (NSW).  As Mr Hale pointed out, expert evidence might have been expected to identify the areas of the environment affected by the proposals, the characteristics of those areas, including flora and fauna; and the relationship between the proposal and other projects already approved, particularly the export licences granted to Boral and North Broken Hill.  The evidentiary difficulties were compounded by the fact that some of the documents on which Mr Basten wished to rely to prove the likely effect on the environment of the proposals were not admitted into evidence for the purpose of proving the truth of their contents.

 

The starting point, in my view, is that the "proposed action" for the purposes of paragraph 1.2.1, is, for reasons that I have given, the physical activities proposed to be undertaken by Gunns, as outlined in its application of 4 October 1993 and the accompanying "Integrated Sawmill and Chip Proposal".  On 23 May 1994 Gunns indicated that it was "comfortable" to have an export licence issued for Stage 1 only.  While this letter was treated by the Minister as "revising certain aspects of [the] application", there was no evidence that Gunns at any stage withdrew its application for Stage 2 of the project.  The application made in October 1993 was for a licence to export 475,000 tonnes of woodchips and that application remained on foot at all material times.  In any event, even if the application is to be treated as having been subsequently modified, at the time of the initiative (which I consider to be the time when Gunns lodged the application) the proposed action involved both Stages 1 and 2 outlined in Gunns' "Integrated Proposal".  Accordingly, in assessing the impact of the proposed action on the environment, I think it is the integrated proposal that requires consideration.

 

In considering whether the proposed action would have a significant effect on the environment, it is appropriate, in my view, in the words of Cripps J. in Kivi v Forestry Commission (at 47) to

    

     "look to the whole undertaking of which the relevant activity forms a part to understand the cumulative and continuing effect of the activity on the environment."

 

However, this does not mean that the significance of a particular activity can only be assessed by reference to its impact upon the whole area in which some aspect of the activity is to take place.  Despite the broad definition of "environment" in the Environment Protection Act (which corresponds to that in s.4 of the Environmental Planning and Assessment Act 1979 (NSW)), site specific impacts can be significant, depending on the circumstances.  The impact of logging in particular forests can
have a significant impact on the environment, even though there may be other forests nearby which remain untouched: compare Jarasius v Forestry Commission of New South Wales (No. 1)  (1988) 71  LGRA 79 (LEC NSW/Hemmings J.), at 90-93.

 

Despite the deficiencies of the evidence, I think that it sufficiently established that Gunns' proposed action, as embodied in the Integrated Proposal, would have had a significant effect on the environment.  If the word "significant" needs elaboration in this context, I use it in the sense of "an important or notable effect on the environment": Drummoyne Municipal Council v Roads and Traffic Authority (1989) 67 LGRA 15 (LEC NSW/Stein J.), at 163.  In my view this is so whether one considers the proposed action as an entire undertaking or in terms of its effect on particular sites. 

 

The Gunns proposal contemplated the export of 475,000 tonnes of woodchips per annum, to be obtained from the forests of north- west Tasmania.  This volume amounts to about 12 per cent of the total volume of annual exports of woodchips from Tasmania endorsed by the MOU, as amended in 1988.  Gunns' proposal lists priorities over a ten year period embracing "fully integrated harvesting" both north and south of the Arthur River, including some areas to be cleared for plantation establishment.  This harvesting was intended to tap what was described as a "large surplus of eucalypt pulpwood".  The areas to be tapped included some (such as Dismal Swamp) designated as National Estate and others (such as parts of the Norfolk Ranges) proposed for inclusion in the National Estate.  There was evidence that some of the coupes, forming part of the North Western Wilderness Area, were environmentally significant for the high diversity of plant communities.  The evidence did not suggest that the 475,000 tonnes of woodchips proposed for export would simply replace or substantially replace, the logging or harvesting activities of other companies which had previously held export licences.  Indeed on the evidence, a licence granted to Gunns was to be in addition to the licences granted to Boral and North Broken Hill, which between them exported 2,825,000 tonnes of woodchips in 1994.

 

The draft and final versions of the EIS contain statements pointing to the adverse effect of road construction and logging operations on forests.  They also draw attention to the impact on native fauna of clearfelling of forests.  These would seem to reinforce what is tolerably clear in any event, namely, that unless there are special circumstances, the harvesting, transportation and processing of the quantity of logs required to produce 475,000 tonnes of woodchips is likely to have a significant effect on the forests in which the activities are to take place.  This is so notwithstanding that some of the woodchips might be obtained by means other than logging of timber.  Whether or not the effects on the environment are outweighed by other social or economic factors, is not the point.  Rather, it is that the test stated in paragraph 1.2.1 of the Administrative Procedures is satisfied.

 

I should add that Gunns' proposal, as formulated in October 1993, clearly would have had other environmental consequences if implemented.  Infrastructure costing in the order of $10 million would be required at the deep water port of Stanley, which is an historic town in an area designated as National Estate.  A dedicated chipping facility would be constructed, involving some 40 construction jobs.  The Integrated Proposal itself accepted that there would be concern about the movement of heavy transports in and out of Stanley, presumably over the whole of the ten year period of the proposal.  Indeed the advice to the Minister, dated 1 June 1994, acknowledged that Stage 2 would "require more detailed assessment of the higher level of harvesting and possible impacts on the town of Stanley".  This reinforces the conclusion that the Integrated Proposal must be regarded as having a significant effect on the environment.

 

I should add that both Mr Heydon and Mr Hale submitted that, on the evidence, Stage 1 of Gunns' proposal, for which a licence was ultimately obtained, did not have a significant effect on the environment.  They each relied on evidence suggesting that timber would be harvested from coupes in respect of which logging was already permitted.  They also pointed to evidence indicating that, had no licence been granted, at least some of the pulpwood to be used by Gunns would have been purchased by North Broken Hill or Boral or simply burnt or otherwise wasted.

 

For the reasons I have given, I do not think that the "proposed action", the environmental effect of which is to be assessed, can
be confined to Stage 1.  In my opinion, the proposed action was that contemplated in the Integrated Proposal.  Accordingly  I do not think it necessary to consider whether Stage 1 alone should be regarded as having a significant effect on the environmentfor the purposes of paragraph 1.2.1 of the Administrative Procedures.

 

Initiative

Mr Heydon submitted that paragraph 1.2.1 of the Administrative Procedures did not impose an obligation on the action Minister to designate a proponent, because neither of Gunns' proposals  involved any relevant "initiative" having been taken.  As Mr Heydon pointed out, paragraph 1.2.1 requires the action Minister to designate a proponent "as soon as possible after any initiative has been taken in relation to a proposed action".  In Mr Heydon's submission, an "initiative" is "an introductory act or step" (Macquarie Dictionary) or "that which initiates, begins or originates" (Oxford English Dictionary).  Specifically he defined "initiative" as a step taken by the Commonwealth, or on its behalf, in relation to a proposed action which is the first step in a new category of conduct distinct from any earlier proposed action in respect of which some antecedent initiative had been taken.  The proposal by Gunns - whether it was to be taken as having been made in 1993, or by the letter of 23 May 1994 - was not an "initiative".  Similarly, any consideration of the proposal by the Minister was not an initiative.  It was simply one of a number of steps (including consideration of applications for export licences by other woodchipping companies such as Boral and North Broken Hill) under the umbrella of the proposed action that led to the 1985 EIS.

 

Mr Heydon started with the fact that, in 1983, the then Minister had directed the members of the Tasmanian Woodchip Export Study Group to prepare an EIS.  This was done because the Commonwealth was considering whether to extend export licences for woodchips produced in Tasmania.  The initiative taken at that time was to nominate a proponent or proponents, who then went on to prepare the draft and final versions of the EIS.  In 1994 the Minister was not being asked to take any step different from that taken or contemplated in 1983.  Any action taken by the Commonwealth in relation to Gunns' proposal was not an introductory or first step, but was repetitive of earlier actions.

 

It is far from clear to me that an "initiative" for the purposes of paragraph 1.2.1 is confined to one taken by the Commonwealth or on its behalf.  However, on the assumption that it is so confined, I do not think that the fact that the Commonwealth directed the preparation of an EIS in 1983 prevented it from taking an initiative in 1993 or early 1994, in relation to an application by Gunns for an export licence.  In my view, the fact that the Minister contemplated granting an export licence to Gunns in accordance with its application, and made inquiries to this end, constituted an initiative capable of enlivening the obligations in paragraph 1.2.1 of the Administrative Procedures. As I have previously said, Gunns' application was for a licence to allow it to conduct both Stage 1 and Stage 2 of its plan.  But whether attention is focussed on both stages or only on Stage 1 I do not think that any action contemplated or taken by the Minister in relation to Gunns' proposal can be dismissed as merely repetitive of actions that had already occurred some ten or eleven years earlier.

 

There was no evidence of the circumstances in which a direction was given in 1983 for the preparation of the EIS, beyond the general statements in the draft and final versions of the EIS.  Nor was there evidence of the number and nature of the export licences granted in consequence of the process that included the 1985 EIS.  There was of course evidence of the terms of the MOU (although that document disclaimed the Commonwealth's intention of undertaking any legal obligations) and of particular export licences that had been granted to certain companies in the intervening period.

 

As far as the evidence shows, Gunns' application for an export licence was the first it had made.  Although the licence ultimately issued contained no condition specifying the source of logs, the application specifically contemplated that the supply of pulpwood would come from specified areas in the north- west of Tasmania.  The EIS addressed the sustainable aggregate quantity of pulpwood available from Tasmania as a whole.  The EIS proposed that the total volume of pulpwood available for export could be adjusted according to such factors as five yearly reviews of resource and sustainable yields, increased yields from intensification of forest management and previously unused resources becoming available.  Furthermore, the final EIS specifically stated (at 5) that, given the time frame of the proposal (that is, 15 years from 1988), it was not possible to define strictly the exact areas which would be harvested to supply the pulpwood required.   Although, as Mr Dalton's letter of 21 April 1994 observed, there was some reference to the total volume of pulpwood available from the Circular Head supply zone, the EIS did not address the volume of woodchips that should be extracted in 1994 and subsequent years from the areas of north-west Tasmania identified in Gunns' proposal, whether in its original or modified form.  Nor did the EIS address the volume of woodchips to be sourced to particular coupes within those areas.

 

I think that there may well be circumstances in which an action or contemplated action by the Minister is so closely related to a previous action, such as the grant of an earlier licence or an earlier direction to designate a proponent, that the later action cannot properly be described as "an initiative in relation to a proposed action".  In this case, however, the "proposed action" was Gunns' proposal for the production, transport and export of woodchips, as formulated in the "Integrated Sawmill and Woodchip Proposal" that accompanied the application for an export licence. No similar action had previously been proposed by Gunns nor, for that matter, by any other company.  It is true that Gunns' proposal involved obtaining logs from coupes in response to which export licences had been granted to other companies (Boral and North Broken Hill).  However, their activities were different from those contemplated by Gunns, since the quantities of woodchips covered by their licences were much larger (947,000 green tonnes and 1,878,000 green tonnes, respectively).  In any event, it was not suggested that the decision to grant a licence to Gunns merely reflected earlier decisions in 1993 by the Minister in relation to earlier applications by those companies.

 

It does not seem to me that what occurred over the period 1983 to 1985 was sufficiently related either to the specific application by Gunns in October 1993, or to the Minister's response to that application, to deprive the Minister's actions of the quality of an "initiative" in relation to Gunns' proposed action.  The fact that Gunns' proposal contemplated a quantity of woodchips for export within the overall framework suggested by the EIS and endorsed by the MOU (but without the Commonwealth undertaking a legal obligation to permit the export of woodchips), seems to me to fall short of establishing that the Minister's actions in contemplating the grant of a licence were merely repetitious of previous decisions or actions of the Commonwealth.

 

The conclusion that the Minister's actions in 1993 or early 1994 constituted an "initiative...taken in relation to a proposed action" seems to me to be consistent with the object of paragraph 1.2.1, taken in context.  The consequence of designating a proponent in relation to a proposed action is not necessarily to require an elaborate assessment of the environmental impact of the proposal.  The Minister for the Environment is to make a judgment whether an independent EIS or any other form of assessment is appropriate.  As Mr Basten recognised in argument, it is open to the Minister to take into account the existence of an environmental assessment of similar proposals.  No doubt it is also open to the Minister to take into account policy decisions previously made, such as those embodied in the MOU.  Too narrow a view of the concept of an "initiative" is likely to curtail unduly the opportunity for an assessment of a particular proposed action.  The processes provided for in the Administrative Procedures allow for judgments to be made as to whether a project warrants detailed investigation in the light of previous studies of similar proposals.

 

Thus far, I have approached Mr Heydon's argument on this issue on the assumption that an "initiative" is confined to an action taken by or on behalf of the Commonwealth.  However, I should indicate that, in my view, the better interpretation is that an initiative may be taken, not only by the Commonwealth, but by a person or corporation proposing  that the Commonwealth take action in relation to a particular proposal.  I have already given reasons for concluding that "proposed action" is a term capable of describing the physical activities to be undertaken by the applicant for a licence.  Paragraph 1.2.1 does not say that the obligation to designate a proponent is enlivened only when an initiative is taken by or on behalf of the Commonwealth.  It would have been very simple to say so.  Indeed, in context, the word "initiative" is quite apt, in my opinion, to describe a significant step taken by a corporation to promote a "proposed action".  The most obvious illustration is the making of an application for a licence to permit the "proposed action" to be undertaken.

 

Which is the correct interpretation of "initiative", as the word is used in paragraph 1.2.1, is not an issue affecting the conclusion I have reached on this aspect of the case.  However, for the reasons I have given, I think that an "initiative" in this case was taken by Gunns.  Specifically, I think that the submission of October 1993 constituted an "initiative...taken in relation to a proposed action" for the purposes of paragraph 1.2.1.  It was this initiative that brought into play the Minister's obligations under paragraph 1.2.1.

 

The In-Principle Approval

By a letter sent on 10 June 1994, the Minister for  Resources granted what was described as "in-principle approval" for the export of up to 200,000 green tonnes of hardwood chips, derived solely from sawmill residues, until the end of 1999.  The approval was expressed to be subject to the issue of annual export licences and to the requirements of the MOU.  Mr Basten submitted that the approval was "a decision to which this Act applies" within the meaning of s.5(1) of the ADJR Act.  Alternatively, he submitted that, by granting the approval, the Minister had "engaged...in conduct for the purpose of making a decision to which this Act applies", within s.6(1) of the ADJR Act.  If both of these submissions were rejected, Mr Basten relied on s.39B(1) of the Judiciary Act 1903 to confer jurisdiction to grant relief to the Trust.

A "decision to which this Act applies" is defined by s.3(1) of the ADJR Act to mean

 

     "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment..."

 

 

A reference to the making of a decision includes a reference (inter alia) to giving or refusing to give an approval or permission, to issuing or refusing to issue a licence and to doing or refusing to do any other act or thing.  Section 3(3) deals with the case of a report or recommendation:

 

     "Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

 

 

A reference in the ADJR Act to "conduct engaged in for the purpose of making a decision"

 

 

     "includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an investigation" (s.3(5)).

 

 

Australian Broadcasting Tribunal v Bond

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason C.J., with whom Brennan and Deane JJ. agreed, held that the word "decision" in the ADJR Act should be given a relatively
narrow meaning.  The Chief Justice said this (at 336-337):

 

     "...other considerations point to the word having a relatively limited field of operation.  First, the reference in the definition in s.3(1) [of the ADJR Act] to "a decision of an administrative character made...under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision.  Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue".  Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality.  Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination.  Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".

 

     ...

 

     The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations.  That answer is that a reviewable "decision" is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

 

     Another essential quality of a reviewable decision is that it be a substantive determination.  With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character.  Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s.3 point to a substantive determination.  In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power.

 

     ...

 

     If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character.  To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.  Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review."

 

 

 

The Chief Justice accepted (at 338) that review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

 

This analysis led to the conclusion that the Federal Court had jurisdiction under the ADJR Act to review a finding that certain  licensees were no longer fit and proper persons to hold broadcasting licences under the Broadcasting Act 1942.  Although the decision was an intermediate determination, made on the way to deciding whether or not to revoke or suspend the licences or to impose conditions, it was a decision on a matter of substance for which the statute provided as an essential preliminary tothe making of the ultimate decision (at 339).  However, the finding that an individual, Mr Bond, was not a fit and proper person to hold a licence was not a determination for which the Broadcasting Act 1942 provided and was merely a step in the reasoning on the way to concluding that the licensees were no longer fit and proper persons to hold licences.  Thus it was not a "decision".

 

The Chief Justice went on to deal with the distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision.  His Honour referred to the distinction as "somewhat elusive" (at 341).  He continued (at 341-343):

 

     "However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear.  In its setting s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision.  In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination.  Thus, conduct is essentially procedural and not substantive in character.  Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, "the taking of evidence or the holding of an inquiry or investigation".  It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

 

     Accordingly, there is a clear distinction between a "decision" and "conduct" engaged in for the purpose of making a decision.  A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.  It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge.  In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous.  To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct".  That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.

 

     ...

 

     Some reference must be made to s.6(1)(f) which speaks of an error of law being "committed in the course of the conduct".  On its face, this provision permits of review of any error of law made, for example, in an inquiry held for the purpose of making a "decision".  Such a review of conduct might entail a challenge to a substantive, as well as a procedural, error of law.  However, this ground of review of "conduct" does little to expand the "error of law" ground contained in s.5(1)(f) relating to errors of law "involved" in the decision.  Ordinarily, if not always, an error of law made in the course of conduct engaged in for the purpose of making a decision would be an error of law involved in the decision itself: see, e.g, Chan v Minister for Immigration.  This ground of review does not detract, therefore, from the argument that the AD(JR) Act maintains a dichotomy between reviewable decisions and reviewable conduct.

 

     It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as "conduct" unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable."

 

 

 

The finding that Mr Bond was not a fit and proper person was procedural and, being merely a step in the process of reasoning, did not amount to "conduct".  Accordingly, it did not amount to reviewable conduct under the ADJR Act.

 

Was there a Decision?

In view of the reasoning in Australian Broadcasting Tribunal v Bond, I do not think that the in-principle approval by the Minister can be characterised as a substantive determination which is "final" or "operative and determinative".  Nor do I think that the approval was a decision which the Export Control (Unprocessed Wood) Regulations require or authorise.

The Minister's in-principle approval followed the application by Gunns, in October 1993, for the issue of a licence to export 475,000 green tonnes of woodchips per annum.  This was plainly intended to be an application under reg.7 of the Export Control (Unprocessed Wood) Regulations, although the application did not specify a period of time during which the licence should remain in force.  The letter of 23 May 1994 indicated that Gunns would be "comfortable to have a licence issued" for Stage 1 only,  but requested an increase from 175,000 tonnes to 200,000 tonnes for Stage 1.

 

Under the Export Control (Unprocessed Wood) Regulations (reg. 8) the Minister was obliged either to grant the licence or to refuse to grant the licence.  He also had power, under reg.9, to impose conditions.  Clearly these powers were exercised in relation to the grant of the licence to Gunns to export up to 200,000 tonnes of woodchips during the period expiring 31 December 1994.  But the regulations do not provide for an "in-principle approval".  Moreover, the letter from the Minister specifically stated that the in-principle approval was subject to the issue of annual export licences.

 

As Mr Basten pointed out, the communication of the in-principle approval, perhaps if coupled with reliance upon that approval by Gunns, may well have consequences for Gunns and for the Minister.  The in-principle approval stated that it was subject to the requirements of the MOU.  So long as Gunns' operations were within those requirements, it is likely that Gunns would have a legitimate expectation that a licence would not be denied on other grounds, and an entitlement to procedural fairness that would flow from that expectation.  In Attorney-General for New South Wales v Quin (1990) 170 CLR 1, at 20, Mason C.J. said this:

 

     "It is the presence of a legitimate expectation which conditions  the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case.  The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle.  So, a legitimate expectation may be created by the giving of assurances (Salemi (1977) 137 CLR at 440); Kioa (1985) 159 CLR at 583; C.C.S.U. [1985] AC at 401), the consequences of denial of the benefit to which the expectation relates (F.A.I. v Winneke; Kioa) or the satisfaction of statutory conditions (In re H.K. (An Infant) [1967] 2 QB 617).  The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate."

 

See also Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648, at 679-682, per McHugh J.

 

However, (at least under existing doctrine), circumstances sufficient to create legitimate expectations do not prevent the decision-maker from exercising a statutory power or discretion in the public interest: Attorney-General (NSW) v Quin, at 35-36, per Brennan J.  In Quin, Mason C.J. alluded (at 18) to the possibility that courts might in some situations grant relief, on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by inflicting injustice than any detriment arising from narrowing the exercise of discretion.  But, as was pointed out in Roberts v Repatriation Commission (1992) 39 FCR 420 (FCA/FC), at 425, this statement needs to be understood in the context of the Chief Justice's earlier statement of principle in Quin (at 17):

 

     "The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power..."

 

For these reasons I do not think the in-principle approval had the effect of creating a substantive entitlement in Gunns beyond 31 December 1994.  In other words the approval was not an ultimate or operative determination in relation to Gunns' application for a licence under the Export Control (Unprocessed Wood) Regulations.  Furthermore, it was not authorised by those regulations.  Accordingly, I do not think it was a "decision" for the purposes of s.5 of the ADJR Act.

 

Was there Conduct for the Purpose of a Decision?

Nor do I think that the in-principle approval constituted conduct engaged in for the purpose of making a decision.  Thecritical distinction, drawn by Mason C.J. in Australian Broadcasting Tribunal v Bond, is between a final and operative determination and conduct of the proceedings leading to such a determination.  Conduct is within s.6 of the ADJR Act only if it is "essentially procedural" in character.  On the Chief Justice's formulation, a challenge to decisions made as part of the decision-making
process does not constitute a challenge to "conduct";  the complaint must be "that the process of decision-making was flawed".  In particular, "conduct" does not embrace unreviewable decisions which are only steps in the deliberative process.

 

The distinction is illustrated by the approach taken to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, in Australian Broadcasting Tribunal v Bond.  In Chan, three members of the Court were prepared to regard a refusal by a delegate to grant an application for refugee status, if not a decision, then as "conduct engaged in for the purpose of making a decision".  Mason C.J. in that case (at 386) said this was because the

 

 

     "[r]efusal by the delegate of the application for refugee status was conduct engaged in as part of procedures leading to the ultimate unavailability of an entry permit".

 

 

See also at 411-412, per Gaudron J.; at 420-421, per McHugh J.  In Bond, at 342, Mason C.J. said "it was not precise" in Chan to describe the delegate's decision as reviewable conduct, since the decision was not a matter of procedure.  Gummow J. in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 (FCA/FC), at 355, observed that Chan may have to be treated as contradicted by Bond.  I think that is correct.  The approach taken in Bond demonstrates that a decision made in the course of procedures leading to an ultimate decision is not conduct for the purposes of the ADJR Act, unless it is procedural in character.

As a practical matter the in-principle approval granted by the Minister to Gunns may have considerable significance.  Unless there is a change of policy, it provides a strong indication that further licences will be granted so long as existing guidelines are observed.  The draft EIS (at 320-321) referred to the need for companies involved in woodchipping to have an "assurance of their future" to justify commitments of capital.  It also referred to the importance of security of supply for purchasers and the requirements of charter arrangements for shipping.   In this sense the in-principle approval may be a step, if not in the reasoning process, then in the deliberative process.  But it does not seem to me to be a procedural step in the sense described by Mason C.J.  It is an outcome of the process, although not, for the reasons I have given, one that amounts to a final or operative decision.  It is true that the in-principle approval, as I have indicated, may give rise to procedural consequences.  In particular, the nature and extent of the Minister's obligation to afford procedural fairness could well be influenced by the in-principle approval.  That does not, in my opinion, transform the approval into a procedural step of thekind capable of constituting conduct for the purposes of s.6 of the ADJR Act.

 

In my view, this result is not entirely satisfactory.  Clearly, the grant of in-principle approval was intended to have some significance, despite the limitations on its legal effect.  In practice the circumstances of the approval could be reviewed in the context of the grant of a fresh export licence, as contemplated by the approval.  However, if there is any such challenge, it might not occur - let alone be heard - until a considerable period after the approval has been granted.  In this connection, some legislation provides, in effect, for in-principle approvals and their immediate review: see, for example, Environmental Planning and Assessment Act 1979 (NSW), s.91AA ("deferred commencement" consent), s.97(1), s.123.  Nonetheless, in my opinion, the in-principle approval cannot be regarded as either a "decision", or "conduct engaged in for the purpose of making a decision", within the meaning of the ADJR Act.

 

Section 39B of the Judiciary Act

As noted, the amended application sought relief both under the ADJR Act and s.39B(1) of the Judiciary Act 1903.  Section 39B(1) provides as follows:

 

 

     "The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a court of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

 

The intention of Parliament, in enacting s.39B(1) was to confer on the Federal Court "the full amplitude of the original jurisdiction of the High Court under s.75(v) [of the Constitution]":  David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484 (FCA/FC), at 497, per Morling and French JJ.

 

Mr Heydon pointed out that the relief claimed by the applicant, although sought against an officer of the Commonwealth, did not
include a writ of mandamus, a writ of prohibition or an injunction.  The applicant merely claimed an order that the Minister's decision be set aside and the matter remitted to the Minister to be determined according to law.  Even if this were to be interpreted as a claim for prerogative relief in the nature of certiorari, Mr Heydon submitted that s.39B(1) does not authorise such a claim, unless it is ancillary to a claim for prohibition (or other relief mentioned in the sub-section), brought, not merely colourably, but in good faith.   For this proposition he relied on the judgment of Gibbs J. in The Queen v Cook; Ex parte Twigg (1980) 147 CLR 15, at 25-26, with whose analysis Stephen, Mason and Wilson JJ agreed.  See also at 30-34, per Aickin J.  Mr Heydon also submitted that, if the order remitting the question of a licence to the Minister to be determined according to law was said to be the equivalent of an order for mandamus, it was not a remedy that the Trust had standing to seek, since the Trust was not the proponent of the proposal for a licence to export woodchips.  The Trust's interest, if any, was exhausted at the point at which the Minister's decision to grant the licence was set aside (although of course Mr Heydon did not accept that there were grounds for such relief).  Thus the further remedy sought by the Trust was "colourable" within the language used in The Queen v Cook.

 

Although there was a passing reference to s.39B(1) of the Judiciary Act 1903 in the Trust's written submissions, Mr Basten did not argue to the contrary of the submissions put by Mr Heydon.  Nor was there any attempt to amend the application further to claim injunctive relief of the kind that might attract the operation of s.39B(1).  In my opinion, Mr Heydon's submissions on the applicability of s.39B(1) should be accepted.  Accordingly, I take the view that the applicant cannot rely on s.39B(1) for the relief claimed in the present case.

 

Standing

In North Coast Environment Council Incorporated v Minister for Resources, 16 December 1994, unreported, I decided that the North Coast Environment Council was a "person aggrieved" for the purposes of the ADJR Act.  That case raised issues similar, if not identical to those in the present case.  Mr Basten and Mr Heydon (but not Mr Hale) argued the case, which was heard shortly after the hearing in the present case was concluded.  In the course of the judgment I considered the principal authorities, including Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; Onus v Alcoa Ltd (1981) 149 CLR 27; Ogle v Strickland (1987) 13 FCR 206 (FCA/FC); Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 (FCA/Davies J.); and Right to Life Association (NSW) Inc v Secretary of the Commonwealth Department of Human Services and Health (1994) 125 ALR 337 (FCA/Lindgren J.).

 

I do not repeat the analysis here.  As in North Coast, I think that there are a number of factors in the present case that justify the conclusion that the Trust is a person aggrieved for the purpose of challenging the Minister's decisions to grant an export licence to Gunns and to grant an in-principle approval to Gunns to export woodchips over a five year period.  These factors, to use the language of Stephen J. in Onus v Alcoa (at 42), show the importance of the Trust's concern with the subject matter of these decisions and the closeness of its relationship to that subject matter.

 

•    First, the Trust is the peak environmental organisation for Tasmania, recognised as such by the State and Commonwealth governments.  Its activities include research, advice, lobbying and consultations in relation to Tasmanian forests and to woodchipping in Tasmania.  Its areas of concern include the forests the subject of its licence and the in-principle approval.

 

•    Secondly, the Trust has been recognised by the Commonwealth as a significant and responsible environmental organisation.  This is reflected in the Trust's membership of the Peak Conservation Organisation since 1983 and in the annual administration grants provided by the Commonwealth to the Trust.  Recognition of the importance of the Trust's role is also shown by the extensive support given by Commonwealth agencies to projects undertaken by the Trust or in which it has participated.

 

•    Thirdly, the Trust is recognised by the Tasmanian Government as a body that should represent environmental interests on advisory or consultative bodies.  Its annual reports show that it is represented on a large number of committees and advisory bodies, covering a wide range of topics, including forestry issues.

 

•    Fourthly, the research and advisory activities of the Trust, although extensive, have involved detailed considerations of woodchipping and the preservation of Tasmanian forests, the very subject-matter of the present litigation.  It is of particular significance that the Trust, either alone or in combination with other conservation organisations, has received Commonwealth funding to undertake projects designed to identify forests of high conservation value and to consider their relationship with proposed woodchipping activities.

 

•    Fifthly, the Trust has made submissions and engaged in other activities (such as supporting areas for inclusion in the World Heritage) that demonstrate its commitment to conservation values.  These activities go well beyond submissions made in relation to the 1985 EIS that has been referred to earlier.

 

•    Sixthly, while, as appears from North Coast, I do not regard the size of an organisation or its resources as a critical factor, the Trust is a substantial body, in terms of membership, income and range of activities.

 

In North Coast I noted that there were differences between the position of the North Coast Environment Council and that of the Australian Conservation Foundation, an organisation considered by Davies J. in Australian Conservation Foundation v Minister.  There are also some differences between the position of the Trust in the present case and that of the Australian Conservation Foundation, although the Trust is closer to the Australian Conservation Foundation's position than was the North Coast Environment Council.  The Trust, for example, is the peak environmental organisation within Tasmania and has paid staff and a substantial budget.  To the extent that there are differences between the position of the Trust and the Australian Conservation Foundation, for the reasons given in North Coast, I do not think they disqualify the Trust from being a "person aggrieved" for the purposes of the present proceedings.

 

There is nothing to suggest that the Trust cannot act, or has not acted, effectively as a contradictor to the Minister and Gunns in the proceedings.  Nor is there anything to suggest that there is conflict with other individuals or organisations advocating or representing similar interests or values.  In these circumstances I consider that the Trust is a "person aggrieved" within the meaning of the ADJR Act.  If it were relevant, I would also consider that the Trust has standing under the general law to challenge the decision of the Minister to grant an in-principle approval to Gunns for the export of woodchips until the end of 1999.

 

Conclusion

In summary, the conclusions I have reached are as follows:

(i)       If there were a "proposed action" in the present case, for the purposes of paragraph 1.2.1 of the Administrative Procedures, it was the proposal by or on behalf of Gunns, in its application of October 1993, identifying its intended activities in obtaining and processing logs and transporting and exporting woodchips.

 

(ii)      There can be a "proposed action" for the purposes of paragraph 1.2.1 only if there is a matter within one of the sub-paragraphs in s.5(1) of the Environment Protection Act, and the matter affects the environment to a significant extent.

 

(iii)     It is for the Minister, provided that he or she acts according to law, to determine whether a particular proposal affects the environment to a significant extent, and thus whether he or she is obliged to designate a proponent under paragraph 1.2.1.  In other words, the issue is not one of jurisdictional fact.

 

(iv)      In deciding that it was not necessary to designate Gunns as a proponent pursuant to paragraph 1.2.1, the Minister erred in law.  He did so by failing to take into account a relevant issue, namely whether the proposed action affected the environment to a significant extent.  The Minister failed to direct his mind to this issue because he took the view that any adverse impact on the environment of Gunns' proposal had previously been considered by the final EIS and the 1986 MOU.

 

(v)       If (contrary to  my view) the question was one of jurisdictional fact, on the evidence the proposed action affected the environment to a significant extent.

 

(vi)      Whether or not an initiative is confined to action by or on behalf of the Commonwealth, an initiative was taken in relation to Gunns' proposed action.  The initiative was either Gunns' application of October 1993 or the Minister's response to that application in late 1993 and early 1994.

 

(vii)     While the Minister's decision to grant a licence to Gunns to export woodchips was a decision within the meaning of s.5 of the ADJR Act, the grant of in-principle approval to the export of woodchips until 1999 was not.  Nor did it constitute conduct engaged in for the purpose of making a decision within the meaning of s.6 of the ADJR Act.

 

(viii)    The Trust is not entitled to rely on s.39B(1) of the Judiciary Act 1903 to claim relief in the present proceedings.

 

(ix)      The Trust is a "person aggrieved" for the purposes of the ADJR Act.  It also has standing under the general law to challenge the decisions of the Minister to grant in-principle approval to Gunns for the export of woodchips until 1999.

 

 

The result is that I consider that the Trust is entitled to relief in relation to the export licence granted to Gunns for the period 10 June 1994 to 31 December 1994, but not in relation to the in-principle approval for the export of woodchips until 1999.  Had the Minister and Gunns not disavowed reliance on discretionary matters, it may have been necessary to consider the appropriate form of relief, having regard to the fact that the term of the licence has now expired.  However, in view of the approach taken, I think that the appropriate course is to set aside the decision of the Minister, made on or about 10 June 1994, to grant a licence to Gunns to export woodchips during the period from 10 June 1994 to 31 December 1994.

 

Since the Trust has succeeded in part of its claim, I am inclined to order the Minister and Gunns each to pay one quarter of the Trust's costs (that is, a total of one half of the Trust's costs).  However, if any party wishes to make submissions on the questions of costs, I shall provide that opportunity.

 

                   I certify that this and the preceding 78 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

 

                   Associate:

 

 

 

 

 

                   Dated:  10 January, 1995

 

Heard:             16-18 November, 1994

 

Place:             Sydney

 

Decision:          10 January, 1995

 

Appearances:       Mr J. Basten QC and Mr N. Williams, instructed by The Environmental Defender's Office appeared for the Applicant.

 

                   Mr J.D. Heydon QC and Mr C.P. Comans, instructed by the Australian Government Solicitor appeared for the First Respondent.

 

                   Mr T. Hale instructed by Dunhill Madden and Butler appeared for the Second Respondent.