FEDERAL COURT OF AUSTRALIA
Mees v Roads Corporation [2003] FCA 306
ENVIRONMENT LAW – environment protection – approval of proposals by Minister for the Environment – referral of proposals for approval – requirement for provision of information – information to be provided includes whether action is related to other actions or proposals in the region – statutory offences of recklessly or negligently providing false or misleading information – power to restrain by injunction offence or contravention of Act – referral of proposal to build freeway – failure to refer to further freeway link that would result in complete ring road – whether secret plan to construct further link – whether construction of proposed freeway would lead inevitably to construction of link – whether failure to inform Minister for the Environment of strong chance of construction of future link misleading – context of statements about absence of proposal for link – whether in context silence can be misleading
PARLIAMENTARY PRIVILEGE – statements made to parliament – tender to court of Hansard records of statements – what constitutes breach of parliamentary privilege – application of State parliamentary privilege to Federal Court proceeding – whether court can receive evidence of statement – whether maker of statement can rely on its truth – whether other party can contest its truth – whether court can examine statement’s clarity
WORDS AND PHRASES – “actions or proposals”
Bill of Rights 1689 1 Wm & M Sess 2 c 2, Art 9
Acts Interpretation Act 1901 (Cth) s 22(1)(a)
Criminal Code Act 1995 (Cth) ss 5.4, 5.5, 12.3, 12.4, ch 2, Sch
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 4, 68, 72, 75, 475, 489(1), (2A), 523
Evidence Act 1995 (Cth) s 10(1)
Judiciary Act 1903 (Cth) s 79
Parliamentary Privileges Act 1987 (Cth) s 16(3)
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) items 4, 5, 6 Sch 2
Constitution Act 1975 (Vic) s 19(1)
Environment Effects Act 1978 (Vic) s 9
Transport Act 1983 (Vic) ss 30, 31
R v Murphy (1986) 5 NSWLR 18 referred to
Prebble v Television New Zealand Ltd [1995] 1 AC 321 followed
Sankey v Whitlam (1978) 142 CLR 1 followed
Hamsher v Swift (1992) 33 FCR 545 at 564 followed
Pepper v Hart [1993] AC 593 discussed
Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 followed
Buchanan v Jennings [2002] 3 NZLR 145 followed
R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696 followed
Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 followed
Hamilton v Al Fayed [2001] 1 AC 395 followed
R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 discussed
Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 referred to
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 discussed
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 applied
Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 22nd ed. 1997 at pp. 68 – 81 referred to
Campbell Parliamentary Privilege and Admissibility of Evidence (1999) 27 Federal Law Review 367 referred to
PAUL ANDREW MEES v ROADS CORPORATION, PETER BATCHELOR AND STATE OF VICTORIA
V 1135 of 2001
GRAY J
8 APRIL 2003
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | V 1135 of 2001 |
| BETWEEN: | PAUL ANDREW MEES APPLICANT
|
| AND: | ROADS CORPORATION FIRST RESPONDENT
PETER BATCHELOR SECOND RESPONDENT
STATE OF VICTORIA THIRD RESPONDENT
|
| GRAY J | |
| DATE OF ORDER: | 8 APRIL 2003 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. On or before 14 April 2003, the parties file and serve minutes of the orders they propose should be made to resolve the proceeding, consequent upon the reasons for judgment published this day.
2. If those orders are not agreed, the proceeding be listed for further hearing on 23 April 2003, to enable the parties to make submissions concerning:
(a) the orders that should be made consequent upon the reasons for judgment; and
(b) the question of the costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | V 1135 of 2001 |
| BETWEEN: | PAUL ANDREW MEES APPLICANT
|
| AND: | ROADS CORPORATION FIRST RESPONDENT
PETER BATCHELOR SECOND RESPONDENT
STATE OF VICTORIA THIRD RESPONDENT
|
| JUDGE: | GRAY J |
| DATE: | 8 APRIL 2003 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
The nature of the proceeding
1 The major issue in this proceeding is whether information provided to the Minister for the Environment of the Commonwealth of Australia (“the Environment Minister”) in relation to the proposed Scoresby Freeway is false or misleading.
2 The proceeding was commenced on 26 October 2001, by the filing of an application in which Paul Andrew Mees was named as applicant and the Roads Corporation and Peter Batchelor were named as respondents. The applicant is a lecturer in the Faculty of Architecture, Building and Planning at the University of Melbourne and a former president of the Public Transport Users Association (“the PTUA”). The Roads Corporation (“VicRoads”) is a statutory corporation, established by the Transport Act 1983 (Vic), with statutory responsibility for the construction of major new roads in the State of Victoria. Mr Batchelor is the Minister for Transport of the State of Victoria. By s 31 of the Transport Act 1983 (Vic), the Minister for Transport may give directions to VicRoads, which “must exercise its powers and discharge its duties subject to” such directions.
3 The relief sought in the original application was an injunction, pursuant to s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”), restraining the respondents from taking any further action relating to construction of the Scoresby Freeway or Eastern Ring Road in Melbourne. The affidavits accompanying the original application disclosed that the ground for it was that the environmental effects of the Scoresby Freeway, and of any link between it and the end of the Western Ring Road at Greensborough, were such as to require the decision of the Environment Minister as to whether approval should be given for the project, pursuant to Pt 7 of the EPBC Act. On 19 February 2002, the State of Victoria referred to the Environment Minister two proposals, each for a separate section of the Scoresby Freeway, for the Environment Minister’s decision as to whether approval was needed pursuant to Pt 7 of the EPBC Act. The ground on which the original proceeding had been commenced was therefore undermined.
4 The applicant then sought, and on 4 March 2002 was granted, leave to file an amended application and to add the State of Victoria as a respondent. The amended application was filed on 6 March 2002. The applicant now seeks injunctions, pursuant to
s 475 of the EPBC Act, restraining the respondents from further disseminating alleged misleading information, requiring them to correct the alleged misleading information and restraining them from taking any further action relating to construction of the Scoresby Freeway until such time as the alleged misleading information has been corrected and the Environment Minister has made a further determination as to whether approval is necessary for the Scoresby Freeway to proceed.
5 In this way, the major issue in the proceeding has been defined. If the applicant succeeds on that issue, there are other issues as to the nature of the relief, if any, that should be granted.
The legislation
6 Section 4 of the EPBC Act provides:
“This Act binds the Crown in each of its capacities.”
7 Fundamental to the provisions of the EPBC Act is the definition of the word “action”, appearing in s 523 (see also s 528). Section 523(1) provides:
“Subject to this Subdivision, action includes:
(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a),
(b), (c) or (d).”
The provisions of ss 524 and 524A, excluding certain decisions from the definition of “action”, are not relevant to the present proceeding.
8 Part 3 of the EPBC Act contains provisions prohibiting actions having, or likely to have, a significant impact on: the world heritage values of a declared World Heritage property (s 12); the ecological character of a declared Ramsar wetland (s 16); a listed threatened species included in one of the extinct in the wild, the critically endangered, the endangered, or the vulnerable categories (s 18); a listed migratory species (s 20); or the environment in a Commonwealth marine area (s 23). There is also a provision relating to nuclear actions that have, or are likely to have, a significant impact on the environment
(s 21).
9 All such actions may be carried out without the approval of the Environment Minister if they are carried out in accordance with a bilateral agreement made between the Commonwealth and a State or Territory, pursuant to ch 3 of the EPBC Act. Otherwise, they may require the approval of the Environment Minister under Pt 9, if they are controlled actions. A controlled action is defined in s 67 as an action that a person proposes to take if the taking of the action by the person without approval under Pt 9 for the purposes of a provision of Pt 3 would be prohibited by the provision.
10 Pt 7 contains a scheme for decision by the Environment Minister on whether an action is a controlled action or not. Section 68(1) provides that a person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Environment Minister for the Environment Minister’s decision whether or not the action is a controlled action. Section 68(2) provides that a person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Environment Minister for the Environment Minister to decide whether or not the action is a controlled action. There are provisions for referral of a proposal by a State, a self-governing Territory or an agency of a State or self-governing Territory (s 69) or by a Commonwealth agency (s 71). By s 70, the Environment Minister may request referral of a proposal that the Environment Minister thinks may be or is a controlled action.
11 Section 72 requires that a referral of a proposal to take an action must be made in a way, and include the information, prescribed by the regulations.
12 By s 75, the Environment Minister must decide whether the action that is the subject of a proposal referred to the Environment Minister is a controlled action. The decision must be made within ten or twenty business days of the referral, depending upon whether the person proposing to take the action stated in the referral that the person thought the action was a controlled action.
13 Part 8 of the EPBC Act contains provisions relating to the assessment of the impacts of controlled actions. Part 9 provides for the approval of actions. The Environment Minister may approve the taking of a controlled action subject to conditions (s 134).
14 In accordance with s 72 of the EPBC Act, provisions have been made in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (“the EPBC Regulations”) for the way in which a referral must be made and for the information that must be included in it. The provisions are found in Pt 4 of the EPBC Regulations and Sch 2. The information required by Sch 2 includes the following:
“4 Description of the proposal
4.01 A description of the proposed action, including:
(a) details of the location of the project area;
(b) the latitude and longitude of the action;
(c) the timeframe in which the action is proposed to be taken;
(d) activities proposed to be carried out in the action;
(e) an explanation of the context, including any relevant planning
framework, in which the action is proposed;
(f) whether the action is related to other actions or proposals in
the region.
5 Nature and extent of the likely impacts of the action
5.01 A description of the affected area that refers, as appropriate, to
relevant maps.
5.02 The nature and extent of likely impacts on any of:
(a) the World Heritage values of a World Heritage property;
(b) the ecological character of a Ramsar wetland;
(c) the members of a listed threatened species (except a
conservation dependent species) or any threatened ecological
community, or their habitat;
(d) the members of a listed migratory species or their habitat;
(e) part of the Commonwealth marine area;
(f) Commonwealth land.
5.03 The nature and extent of the likely impact on the environment, and
whether the action is:
(a) a nuclear action; or
(b) an action by the Commonwealth or a Commonwealth agency;
or
(c) to be taken in a Commonwealth marine area; or
(d) to be taken on Commonwealth land.
5.04 A map of the affected area on which the following features (if
relevant) are marked:
(a) the location of the action;
(b) the approximate boundary of the areas and habitat mentioned
in item 5.02;
(c) to the extent practicable and relevant, the information
mentioned in item 5.06.
5.05 A description of important features of the project area and the affected
area, including (if relevant to the project area or affected area)
information about:
(a) soil and vegetation characteristics;
(b) water flows, including rivers, creeks and impoundments;
(c) the presence of outstanding natural features, including caves;
(d) gradient;
(e) any buildings or other infrastructure;
(f) any marine areas;
(g) kinds of fauna in the area; and
(h) the current state of the environment in the area, including
information about the extent of erosion, whether the area is
infested with weeds or feral animals and whether the area is
covered by native vegetation or crops.
5.06 Whether the project area is held under freehold, leasehold or any
other tenure.
5.07 Current or proposed land uses for the project area.
6 Information sources
6.01 For information given under item 5:
(a) the source of the information; and
(b) how recent the information is; and
(c) how the reliability of the information was tested; and
(d) what uncertainties (if any) are in the information.”
15 Section 489 of the EPBC Act provides relevantly as follows:
“(1) A person is guilty of an offence if:
(a) the person provides information in response to a requirement
or request under Part 7 ... and
(b) the person is reckless as to whether the information is false or
misleading in a material particular.
...
(2A) A person is guilty of an offence if:
(a) the person provides information in response to a requirement
or request under Part 7 ... and
(b) the person is negligent as to whether the information is false
or misleading in a material particular.”
16 By s 22(1)(a) of the Acts Interpretation Act 1901 (Cth), the expression “person” includes a body politic or corporate as well as a natural person. Chapter 2 of the Criminal Code (Cth) (“the Criminal Code”), found in the schedule to the Criminal Code Act 1995 (Cth), contains principles as to criminal responsibility. By s 5.4 of the Criminal Code, the element of recklessness is established if a person is aware of a substantial risk that the circumstance exists or will exist, or is aware of a substantial risk that the result will occur, and, having regard to the circumstances known to the person, it is unjustifiable to take the risk. The element of recklessness can be satisfied by proof of intention, knowledge or recklessness. By s 5.5, the element of negligence is established if the conduct in question involves such a great falling short of the standard of care that a reasonable person would exercise in the circumstances and such a high risk that the element concerned exists or will exist that the conduct merits criminal punishment for the offence. Division 12 of the Criminal Code contains provisions as to the criminal responsibility of bodies corporate. Of particular relevance are the following sections:
“12.3 Fault elements other than negligence
(1) If intention, knowledge or recklessness is a fault element in
relation to a physical element of an offence, that fault element
must be attributed to a body corporate that expressly, tacitly or
impliedly authorised or permitted the commission of the
offence.
(2) The means by which such an authorisation or permission may
be established include:
(a) proving that the body corporate’s board of directors
intentionally, knowingly or recklessly carried out the
relevant conduct, or expressly, tacitly or impliedly
authorised or permitted the commission of the offence;
or
(b) proving that a high managerial agent of the body
corporate intentionally, knowingly or recklessly
engaged in the relevant conduct, or expressly, tacitly or
impliedly authorised or permitted the commission of the
offence; or
(c) proving that a corporate culture existed within the body
corporate that directed, encouraged, tolerated or led to
non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and
maintain a corporate culture that required compliance
with the relevant provision.
(3) Paragraph (2)(b) does not apply if the body corporate proves
that it exercised due diligence to prevent the conduct, or the
authorisation or permission.
(4) Factors relevant to the application of paragraph (2)(c) or (d)
include:
(a) whether authority to commit an offence of the same or a
similar character had been given by a high managerial
agent of the body corporate; and
(b) whether the employee, agent or officer of the body
corporate who committed the offence believed on
reasonable grounds, or entertained a reasonable
expectation, that a high managerial agent of the body
corporate would have authorised or permitted the
commission of the offence.
...
(6) In this section:
board of directors means the body (by whatever name called)
exercising the executive authority of the body corporate.
corporate culture means an attitude, policy, rule, course of
conduct or practice existing within the body corporate
generally or in the part of the body corporate in which the
relevant activities takes [sic] place.
high managerial agent means an employee, agent or officer of
the body corporate with duties of such responsibility that his or
her conduct may fairly be assumed to represent the body
corporate’s policy.
12.4 Negligence
(1) The test of negligence for a body corporate is that set out in
section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical
element of an offence; and
(b) no individual employee, agent or officer of the body
corporate has that fault element;
that fault element may exist on the part of the body corporate if
the body corporate’s conduct is negligent when viewed as a
whole (that is, by aggregating the conduct of any number of its
employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited
conduct was substantially attributable to:
(a) inadequate corporate management, control or
supervision of the conduct of one or more of its
employees, agents or officers; or
(b) failure to provide adequate systems for conveying
relevant information to relevant persons in the body
corporate.”
17 Section 475 of the EPBC Act provides relevantly as follows:
“Applications for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct
consisting of an act or omission that constitutes an offence or other
contravention of this Act or the regulations:
(a) the Minister; or
(b) an interested person (other than an unincorporated
organisation); or
(c) a person acting on behalf of an unincorporated organisation
that is an interested person;
may apply to the Federal Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in
conduct constituting an offence or other contravention of this Act or
the regulations, the Court may grant an injunction restraining the
person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging
in conduct and in the Court’s opinion it is desirable to do so, the Court
may make an order requiring the person to do something (including
repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail to do an act, and the refusal or failure did,
does or would constitute an offence or other contravention of this Act
or the regulations, the Court may grant an injunction requiring the
person to do the act.
...
Meaning of interested person―individuals
(6) For the purposes of an application for an injunction relating to
conduct or proposed conduct, an individual is an interested person if
the individual is an Australian citizen or ordinarily resident in
Australia or an external Territory, and:
(a) the individual’s interests have been, are or would be affected
by the conduct or proposed conduct; or
(b) the individual engaged in a series of activities for protection
or conservation of, or research into, the environment at any
time in the 2 years immediately before:
(i) the conduct; or
(ii) in the case of proposed conduct―making the
application for the injunction.
Meaning of interested person―organisations
(7) For the purposes of an application for an injunction relating to
conduct or proposed conduct, an organisation (whether incorporated
or not) is an interested person if it is incorporated (or was otherwise
established) in Australia or an external Territory and one or more
of the following conditions are met:
(a) the organisation’s interests have been, are or would be
affected by the conduct or proposed conduct;
(b) if the application relates to conduct―at any time during the
2 years immediately before the conduct:
(i) the organisation’s objects or purposes included the
protection or conservation of, or research into, the
environment; and
(ii) the organisation engaged in a series of activities
related to the protection or conservation of, or research
into, the environment;
(c) if the application relates to proposed conduct―at any time
during the 2 years immediately before the making of the
application:
(i) the organisation’s objects or purposes included the
protection or conservation of, or research into, the
environment; and
(ii) the organisation engaged in a series of activities
related to the protection or conservation of, or research
into, the environment.”
The applicant’s standing
18 There is no dispute that the applicant has standing to bring the proceeding. The respondents concede that the applicant falls within the definition of “interested person” in
s 475(6)(b) of the EPBC Act because of his activities for the protection of, or research into, the environment within two years immediately before the conduct of which he complains. In his affidavit filed with the original application, the applicant deposed that these activities were undertaken in the course of his employment as a lecturer in transport and land use planning at the University of Melbourne and in an honorary capacity as president of the PTUA.
19 The applicant’s activities include a study of the environmental effects of the proposed Eastern Ring Road, the environmental assessment process for it and possible alternatives to it. This study began in 1995 and was continuing at the date of commencement of the proceeding. Some of the conclusions from the study were published in December 1999. In July 2002, the applicant was invited to discuss them with the team reviewing environmental assessment procedures for the third respondent. A principal field of the applicant’s research in the course of his employment is the practice of metropolitan planning with the objective of environmental sustainability. The applicant teaches courses devoted to this subject and is frequently invited to speak at conferences. He is a member of the community reference group for the third respondent’s Melbourne Metropolitan Strategy. In his honorary role, the applicant has been actively involved in public debate over the proposed Eastern Ring Road, has given media interviews and spoken at public meetings, and has met with municipal councillors, members of parliament, local environment groups and local communities during the two years prior to the commencement of the proceeding and before that. From his affidavit, it appears that the applicant is ordinarily resident in Australia.
20 For these reasons, I find that the applicant has standing to bring the proceeding.
Existing freeways in Melbourne
21 The existing freeway or motorway system in the metropolitan area of Melbourne can be described broadly as consisting of a series of radial freeways and a partial outer ring freeway. Beginning in the south, there is the Frankston Freeway, which runs from the outer suburb of Frankston at its south end and terminates to the east of another outer suburb, Edithvale, at its north end. The Monash Freeway (formerly called the South-Eastern Freeway) runs from Richmond, close to the Central Business District of Melbourne (“the CBD”) to connect with the Princes Highway and the South Gippsland Highway east of Dandenong, an outer south-eastern suburb. To the south of the CBD are the City Link tunnels, connecting the Monash Freeway to the West Gate Freeway, which crosses the lower Yarra River by the West Gate Bridge and connects to the Geelong Freeway, which runs south-west to Geelong. The West Gate Freeway is also connected by City Link with the Tullamarine Freeway, which leads to the Melbourne Airport, near the outer north-western suburb of Tullamarine, and also connects with the Calder Freeway, heading north-west towards Bendigo. There is also the Eastern Freeway, running in an easterly direction from the inner suburb of Clifton Hill and currently being extended to the outer eastern suburb of Ringwood. The Western Ring Road describes an arc in the outer western and northern suburbs, linking the West Gate Freeway with the Calder Freeway, the Tullamarine Freeway and the Hume Highway, and currently terminates in the northern outer suburb of Greensborough. There is currently no outer freeway linking the Frankston, Monash and Eastern Freeways. The only link between any of those freeways is the City Link system, which I have described above. City Link requires payment of tolls by those using its various sections.
The referral of the proposed Scoresby Freeway
22 The proposed Scoresby Freeway is intended to provide a link between the northern end of the Frankston Freeway and the Monash Freeway at Scoresby and thence a link between the Monash Freeway and the Eastern Freeway at Ringwood. The section of the proposed Scoresby Freeway between the Frankston Freeway and the Monash Freeway is referred to as the southern section. The section between the Monash Freeway and the Eastern Freeway is referred to as the northern section. Each of these sections was the subject of a separate referral to the Environment Minister by the Victorian Government. In preparing the referrals, the Victorian Government made use of a referral guide, placed on the internet by Environment Australia, and intended to assist those making referrals to supply all of the information required by the EPBC Regulations.
23 In relation to the referral of the northern section of the proposed Scoresby Freeway,
cl 2.6 of the referral guide was intended to elicit information, required by item 4.01(f) in
Sch 2 to the EPBC Regulations. It requested the person completing the referral to “Indicate whether, and in what way, the action is related to other actions or proposals in the region.” (Emphasis in original.) For this purpose, the referral stated:
“The proposed Scoresby Transport Corridor between the Eastern Freeway and Ringwood Bypass at Ringwood and the Monash Freeway at Dandenong North is part of a wider range of transport improvements planned or being implemented by the Victorian Government in Melbourne’s eastern and south-eastern suburbs.
Related transport projects are:
· Eastern Freeway extension between Springvale Road, Nunawading North and Ringwood Bypass / Scoresby Freeway. The former Commonwealth Minister for Environment and Heritage advised VicRoads that this was not a controlled action in relation to the EPBC on 8 December 2000. This road is currently under construction. The proposed Scoresby Freeway that is the subject of this EPBC referral will have an interchange with the Eastern Freeway extension at Ringwood.
· Scoresby Freeway from Monash Freeway at Dandenong North to Frankston Freeway at Seaford. This section of the Scoresby Freeway was included in the 1998 EES and 1999 Minister’s assessment under the Victorian Environment Effects Act (1978). This section of proposed freeway is a continuation south of the Monash Freeway of the section of freeway described in this EPBC referral. A separate EPBC referral has been submitted in relation to this section of the Scoresby Freeway.
· A number of heavy rail, light rail and bus improvement projects in the corridor, some of which are yet to be fully defined.
· Provision for possible future public transport services (either heavy freight rail, heavy passenger rail, light rail or busway) in the median of the Scoresby Freeway between Maroondah Highway, Ringwood and Frankston Freeway, Seaford.
Other projects underway or planned in the area that cross the Scoresby Transport Corridor include :
· High Street Road Duplication
· Widening parts of Burwood Highway from four to six lanes.
A reservation exists for a new freeway to Healesville. This reservation crosses the Scoresby Transport Corridor, near its interchange with Boronia Road. However, there are no plans to construct this freeway in the foreseeable future.
It should be noted that there have been references to an investigation of routes linking the Eastern Freeway with the Metropolitan Ring Road in some previous government strategies and/or reports. However, the current Government has clearly stated that there is no proposal for a new freeway linking Scoresby Freeway/Eastern Freeway with the Metropolitan Ring Road. Unlike the Scoresby Freeway, there is no planning scheme reservation for any such road. Hence, there is no State level planning and environmental clearance for a road in this corridor. The independent Panel investigating the Scoresby Transport Corridor was advised that there would be very little traffic impact from a Scoresby Freeway on routes crossing the Yarra River. As a result of all of the above, the proposed road, that is ‘the action’, as described in sections 2.1 and 2.4, that is the subject of this referral would have no effect on national environmental values in the Bulleen/Banyule Flats area.”
24 The applicant contends that the breach of s 489, by the provision of misleading information, is to be found in the last paragraph of the passage quoted, and particularly in the sentence that reads, “However, the current Government has clearly stated that there is no proposal for a new freeway linking Scoresby Freeway/Eastern Freeway with the Metropolitan Ring Road.” To understand the way in which the applicant puts the case, it is necessary to examine the history of road planning in relation to the south-eastern and eastern suburbs of Melbourne.
The history of road planning
25 As early as 1963, there was a planning scheme containing a reservation of land for the construction of a main road following the proposed alignment of the Scoresby Freeway (“the Scoresby corridor”). Between 1969 and 1975, detailed investigation, planning and design work in relation to the Scoresby corridor was performed. No further action was taken at that time.
26 In the late 1970s, there was an investigation of the possibility of a link between the Scoresby corridor and the Western Ring Road at Greensborough. The proposed link was to pass through Warrandyte and Eltham, two rural outer suburbs. The proposal became very controversial and was abandoned in 1981. It has not been revived. In a letter dated 31 July 2000, the second respondent informed the Chief Executive Officer of the Nillumbik Shire Council (which covers areas to the east of Greensborough) that the policy of the government was “that an eastern extension of the Metropolitan Ring Road beyond Greensborough will not be built.”
27 After 1981, the focus shifted to a possible link between Greensborough and the Eastern Freeway at Bulleen, using a reservation of land for a proposed freeway designated as the F18. The F18 reservation no longer exists as a reservation, but the strip of land that was its subject is still wholly or largely vacant land, running north-south through suburban areas from a point adjacent to the Yarra River north of the Banksia Street Bridge. On an aerial photograph tendered by counsel for the respondents, it is possible to see this strip of land to the north of the Yarra River. It appears to align broadly with the section of Bulleen Road running north from its interchange with the Eastern Freeway towards the river and with the Greensborough Highway, which runs from Lower Plenty Road, where the strip of land ends, north to Greensborough. Close to the section of Bulleen Road I have described, on its western side, is an oxbow lake in the flood plain of the Yarra River, known as the Bolin Bolin Billabong. North of the Yarra River, the former F18 freeway reservation also comes close to the area of the flood plain known as the Banyule Flats.
28 In February 1994, the Victorian Government and VicRoads produced a publication entitled Linking Melbourne. A number of its pages bore a logo depicting a map of Melbourne. It showed an outline of Port Phillip Bay, with a small circle at its northern end, apparently intended to suggest the CBD. From this small circle radiated six lines, apparently intended to represent major radial roads. There was also a loop-line linking all of those six radial roads, apparently intended to show the existence of a complete ring road. In an introduction to the document, the then Minister for Roads and Ports referred to a “road network strategy”. He described the document as setting “a clear course for the future management and development of Melbourne’s major roads”. The document described one element of its strategy as being to “Link and upgrade strategic roads to provide a continuous principal road network which contributes to trade, economic and metropolitan development.” A map in the document depicted a link between Ringwood and Greensborough by means of a curved line with an arrow at each end, which the legend to the map described as representing “Missing Links (no reservation)”. One of the “key actions” described in the document was:
“Determine the most appropriate means of joining the Western Ring Road and the Eastern Ring Road to improve access between the eastern and south-eastern suburbs, and the northern suburbs, Hume Highway and Melbourne Airport.”
29 Each year, the Victorian Government produces a document containing its strategic plans for major roads for the ensuing few years. Those documents are produced as part of the process of negotiating with the Federal Government for the provision of funds for the development of roads in Victoria. The 1994 document was entitled National Highways Forward Strategy Report Victoria 1994/95 – 1996/97. Under the heading “Strategies for Proposed National Highways”, the document contained the following:
“The Eastern Ring Road
The objective is to provide an Eastern leg to Melbourne’s outer Ring Road, linking to the Western Ring Road at Greensborough and providing access to Westernport and the Mornington Peninsula in the South.
This section of the Ring Road will link high value manufacturing areas in Melbourne’s rapidly growing eastern and south-eastern suburb [sic] to ports, rail and air terminals and to the National Highway network via the Southern Bypass of Melbourne, and the northern section of the Ring Road.
A study to refine project scope and timing options for the Ringwood to Frankston section will be completed by mid 1994 and detailed investigations to obtain necessary planning approvals will proceed in 1994/95. Construction is programmed to commence in 1995/96.
Further studies will be undertaken in 1994/95 to define route location options for the final Ring Road link between Greensborough and Ringwood.”
30 The document further described the “proposed strategy for development” as to “resolve planning and environmental issues by late 1995”. The document included a map showing the then existing Western Ring Road between the Western Freeway and the Hume Freeway, with its then proposed extension eastwards to Greensborough, the proposed Eastern Ring Road from the Frankston Freeway to Ringwood and a dotted line arching between Ringwood and Greensborough, showing a link between those two places, but not defining a route.
31 The equivalent document produced by the Victorian Government in January the following year was entitled National Highways Forward Strategy Report Victoria 1995/1996 – 1999/2000. It made no reference to any study or proposed study of the kind described in the 1994 document, to define route location options for the final ring road link between Greensborough and Ringwood. It did contain a reference to additions to the national highway network in Victoria that:
“will provide a continuous outer ring road for Melbourne, linking the existing national highways, the Port of Melbourne, the Tullamarine international airport, the major transport corridors to Geelong, Ballarat, Bendigo, Wangaratta and the Latrobe Valley, and the trade exposed [sic] manufacturing industries in the Metropolitan area. The Ring Road will also provide excellent access to national and international tourism activities by linking Tullamarine with all major regional highways and tourism areas including the Mornington Peninsula, South Gippsland and the Yarra Valley.”
32 The document also said:
“The declared National Highway section of the Western Ring Road links the Hume and Western Highways. This section forms only part of the vital Ring Road development required to ensure efficient operation of interstate and international freight, to provide adequate access to national and international tourism activities, and to improve amenity and access in Central Melbourne by removing through traffic. It will not operate effectively without the adjoining Ring Road sections. The whole metropolitan Ring Road must be developed to provide effective linking and integration of other roads and other transport modes.”
33 It included the statement that Victoria:
“is considering the development of a series of possible options for community discussion for linking the Eastern and Western sections of the Ring Road.”
34 Under the heading “Strategies for Proposed National Highways”, the 1995 document contained the following:
“The Eastern Ring Road
The objective is to provide an Eastern leg to Melbourne’s outer Ring Road, ultimately linking to the Western Ring Road at Greensborough and providing access to Westernport, the Mornington Peninsula in the south and the Latrobe Valley and Gippsland.
This section of the Ring Road will link high value manufacturing areas in Melbourne’s rapidly growing eastern and south-eastern suburbs to key state highways, the port, rail and air terminals and to the National Highway network via the Southern Bypass of Melbourne, and the northern section of the Ring Road.
A study to refine project scope and timing options for the Ringwood to Frankston section was completed in 1994. This study concluded that a high standard road incorporating express bus between Ringwood and Frankston is the most appropriate facility to meet future transport and regional needs. Detailed investigations to obtain necessary planning and environmental approvals will commence in 1994/95. Construction is programmed to commence in 1996/97.
Further studies are being undertaken to identify the major national and regional economic development benefits resulting from investment in constructing a Metropolitan Ring Road for Melbourne.”
35 The 1995 document contained a map similar, but not identical, to the map in the 1994 document, with the same dotted line shown between Ringwood and Greensborough.
36 By memorandum dated 1 August 1995, the Chief Executive of VicRoads provided to the then Minister for Roads and Ports information on “Metropolitan Ring Road – Ringwood to Greensborough”, for the purpose of providing background material for a member of parliament who proposed to attend a public meeting in Warrandyte on that day. The meeting had been called to discuss the possible ring road connection between Ringwood and Greensborough. The memorandum identified as issues:
“3. Previous preliminary studies in the late 1970s for a road link in the area between Greensborough and Ringwood were highly contentious.
4. There have been several recent newspaper reports speculating on whether a road will be built, and if so, where it might be located.
5. There are currently no plans to commence a study in 1995/96.”
37 Attached to the memorandum was a document headed “Metropolitan Ring Road – Ringwood to Greensborough Status 1ST August 1995”. The document read as follows:
“The ‘Linking Melbourne’ road network strategy, which was released in February 1994, identified the strategic importance to Melbourne of improving road access from the eastern suburbs to the north. The strategy stated that the Government would commission a study on how best to provide for circumferential metropolitan traffic and regional traffic needs through the north-east of Melbourne.
Recently there have been several newspaper reports speculating on whether a road will be built joining Ringwood and Greensborough, and if so, where it might be located. These reports have increased over the last 1 – 2 months followed publication of details from an internal VicRoads discussion paper which identified the possible scope of a study, if and when it were to be undertaken. This scoping paper contained no recommendations, has not been endorsed and has no status.
Contrary to the newspaper reports there are no preferred routes currently being considered. The routes shown in the local papers were indicative of the possible range of options which may need to be included in a study. These showed a range of possibly [sic] scenarios such as the use of existing roads or the construction of new links, and the potential area for a study ranging from Rosanna Road in the west to the north-east of Warrandyte in the east.
At this stage, the Government has not considered when such a study should be undertaken. Such an investigation will entail detailed and careful consideration of many complex issues and consultation with the community.”
38 Also attached to the memorandum of 1 August 1995 was a draft of a proposal for a “North East Transport Link Study”, dated 17 October 1994. The draft timeline had the study commencing at the beginning of November 1994 and being completed in the middle of 1996. Included was a map entitled “Indicative Route Options”. One of the options shown involved the use of Springvale Road from its interchange with the Eastern Freeway, an east-west road labelled “Northern Route”, linking the existing Fitzsimmons Lane Bridge over the Yarra River, Eltham Road, Lower Plenty Road and the Greensborough Highway. Another option showed a line running east from Greensborough and then turning south through Eltham and Templestowe, with alternative links either to Springvale Road or further east to the Eastern Freeway at Ringwood. A third option was from the Eastern Freeway interchange with Bulleen Road and Thompsons Road, following the Bulleen Road alignment to the north and the old F18 freeway route, crossing the Yarra near the Banyule Flats. Part of this option was represented by a dotted line labelled “Possible Tunnel”.
39 On 24 July 1995, the Premier of Victoria received a letter from Alan Baker, Convenor of a body called Anti Ring Road Organisation. The letter expressed concern about the possible revival of the proposal, abandoned in 1981, for a freeway link between Ringwood and Greensborough and asking for information as to the position of the government. The response to this letter was from the then Minister for Roads and Ports. A draft prepared for his signature referred to Linking Melbourne and to the need to investigate a range of possible road links, including a link between the Western Ring Road at Greensborough and the Scoresby corridor beyond Ringwood. The draft said:
“The Government has not considered when such a study should be undertaken.”
The minister made changes to the letter before signing it. The changes involved the deletion of the sentence quoted above. The final version, signed by the minister on 26 September 1995 and sent to Mr Baker, contained the following:
“The ‘Linking Melbourne’ road network strategy which was released in early 1994 referred to the need to investigate a range of possible road links to serve Melbourne and environs. Naturally, the list of possible options included the north east region because of its geographic importance. However, there are no investigations being carried out or contemplated at this time. At the opening of the Maribyrnong section of the Western Ring Road on 14 July 1995, I made it clear that, for the foreseeable future, existing roads and the Eastern Freeway extension and Ringwood Bypass, presently under construction, would be utilised.”
40 In December 1995, the Victorian Government published a booklet entitled Living Suburbs A Policy for Metropolitan Melbourne into the 21st Century. Among other subjects, this booklet dealt with transport issues. In a draft of this booklet, there was shown a link between the Eastern Freeway and the Western Ring Road, following Bulleen Road and the route of the former F18 freeway proposal. The reference to such a link was removed from Living Suburbs before publication. Instead, in a map of metropolitan transport corridors, a dotted line appeared between the Eastern Freeway and the Western Ring Road, designated by the legend of the map as “North east access – using existing transport links for the foreseeable future”. Living Suburbs also said:
“The Government is also weighing up the advantages of establishing an orbital corridor integrating transport with transport-intensive land uses as part of its metropolitan transport strategy, Transporting Melbourne, which will be released shortly. The Western Ring Road – already well advanced – would constitute the orbital route’s western arc. Environmental studies are currently being undertaken along what would be its eastern arc – the northern part of the Scoresby bypass reservation. The South Eastern Freeway, City Link and Westgate Freeway would connect these two sectors and form the orbital route’s southern arc. Existing transport connections would provide the link between the Western Ring Road at Greensborough and the Eastern Freeway for the foreseeable future.”
41 In 1995, VicRoads commissioned consultants to identify the economic and urban impacts of a Metropolitan Ring Road for Melbourne. The result was a brochure, summarising the major findings of the study and other investigations carried out on the ring road. On the first page of the brochure, there is a map. The map shows various major roads around Melbourne, each of which is designated by a letter of the alphabet. According to the legend, the “Ringwood and Greensborough connection” is designated by the letter “C”. No letter “C” appears on the map and no road is shown connecting Ringwood and Greensborough. Instead, in the gap between those two places, there is a green shaded area. It appears to be the case that a draft of the map showing a road linking Ringwood and Greensborough has been altered to remove that road, but the legend has not been altered to match it. A second version of the map appears in the brochure, with the same green shaded area, but without the legend. The brochure contains estimates of construction costs for three elements of the ring road, the Western Ring Road, the Eastern Ring Road and “Ringwood to Greensborough”. The brochure says:
“Costs for the Western Ring Road are based on current construction estimates. The costs for the Eastern Ring Road were developed in a feasibility study completed in 1994 … The form and location of the Ringwood to Greensborough link has not yet been determined. The cost for this section is an upper bound estimate reflecting the possibility that high cost facilities such as tunnels may be required.”
42 The brochure contains estimates of savings in travel time from a ring road, including estimates of journeys from Knoxfield (in the outer eastern suburbs) to Melbourne Airport, north-west of the CBD, and from Dandenong to the Hume Highway, which runs northward out of Melbourne and is the main road to Sydney. Under the heading “Current Status”, there appears the following:
“Ringwood to Greensborough link. The most appropriate future connection between Ringwood and Greensborough has not been established. At this stage the Government has not considered when a study for this part of the ring road should be undertaken. Such an investigation will entail detailed and careful consideration of many issues and consultation with the community.”
43 In 1995, the Department of Transport, with the agreement of various ministers including the Minister for Roads and Ports, began making arrangements for the preparation of an environmental effects statement for the Scoresby corridor between Ringwood and Frankston. In a memorandum from the Secretary of Transport to the then Minister for Roads and Ports dated 4 May 1995, the question of a link between the proposed Scoresby Freeway and the Western Ring Road was dealt with as follows:
“A major and potentially controversial issue likely to arise during the EES is the possible future connection of a major road to the northern section of the Scoresby corridor. Extension of the Eastern Freeway east of Springvale Road to link up with the Scoresby is a possible option. While this section of the Eastern Freeway has a Planning Scheme reservation and environmental clearance (under the previous Government) road construction would have major environmental effects. The Minister for Roads and Ports has requested VicRoads for an internal review of options between Springvale Road and Ringwood. It is understood that this report will be available shortly.
Another option is a connection between the Scoresby corridor and the Western Ring Road at Greensborough (this was the subject of a very controversial study which was abandoned by the then Government in 1981). Previous schemes between Greensborough and Bulleen were based on a conventional freeway. Impacts would be significantly reduced if a part tunnel solution was considered for the Banyule area. This whole question is a matter for separate examination.”
44 An examination of the annual submissions to the Federal Government in respect of road funding from 1997 onwards shows changes in terminology and approach. The submission prepared in May 1996 is entitled National Roads in Victoria Forward Strategy 1996/1997 – 2000/2001. It contains frequent references to the Metropolitan Ring Road. According to the document:
“The major inter-regional freight corridors to these centres, and the primary linkages between these corridors in the metropolitan area … make a vital contribution to the national economy and should be recognised as Roads of National Importance. These include:
· the remainder of the Metropolitan Ring Road linking the existing National Highways to the Port of Melbourne, the Tullamarine International Airport, the major transport corridors to Geelong, Bendigo, the Latrobe Valley, and the trade exposed manufacturing industries in the metropolitan area.”
45 The document refers to the 1995 study of the economic impacts of the completed Metropolitan Ring Road. It refers to reduced travel times, including a specific mention of a saving of twenty-four minutes from Dandenong to the Hume Highway. It states that an ongoing program will be required to construct the Eastern Ring Road. The document expresses the view that:
“High priority must be given to completion of the Metropolitan Ring Road to realise the enormous economic and social benefits [referred to elsewhere in the document].”
Despite this statement, the document does not propose any specific link between the proposed Scoresby Freeway and the Western Ring Road at Greensborough. On a map entitled “National Roads in Victoria”, there appears a dotted line with the words “Existing roads for foreseeable future”.
46 The 1997 submission to the Federal Government for funding for roads in Victoria, entitled National Roads in Victoria Forward Strategy 1997 – 98 to 2001 – 02, carries similar references. The term “Metropolitan Ring Road” is used repeatedly. The words “Existing roads for foreseeable future” again appear in the gap between Ringwood and Greensborough. There is a reference to the proposed “commencement of the eastern section of the Ring Road”. There is also a reference to the need for immediate funding for the remainder of the Metropolitan Ring Road and a reference to a consultant’s analysis of the benefits of a completed ring road.
47 In 1998, National Roads in Victoria Forward Strategy 1998 – 99 to 2002 – 03 refers variously to “the Metropolitan Ring Road” and the “Eastern leg” of it, “Metropolitan Ring Road (Eastern Section)” and “Eastern Ring Road”. The diagrammatic representations of the roads show a gap between Ringwood and Greensborough. In each of three diagrams, the gap bears no label. In National Roads in Victoria Forward Strategy 1999 – 00 to 2003 – 04, the term “Metropolitan Ring Road” is still used, but the term “Eastern Ring Road” is used, in one case in juxtaposition with “Western Ring Road”. Again, there is an unlabelled gap between Ringwood and Greensborough. In National Roads in Victoria Forward Strategy 2000 – 01 to 2004 – 05, the term “Metropolitan Ring Road” still appears. The unlabelled gap between Ringwood and Greensborough is still shown. Reference is made to the “Western Ring Road” and to the “Scoresby Freeway” between Ringwood and Frankston. In a caption to a photograph of traffic on a freeway appear the words:
“The benefits seen through the development of the western sections of the Ring Road would be duplicated through development of the eastern section.”
48 A similar mix of terminology is found in National Roads in Victoria Forward Strategy 2001 – 02 to 2005 – 06, although the equivalent passage to that I have quoted from the previous year uses the words “Scoresby Freeway” in place of the words “eastern section”. Finally, in National Roads in Victoria Forward Strategy 2002 – 03 to 2006 – 07, the reference to “Metropolitan Ring Road” no longer appears. The “Western Ring Road” and the “Scoresby Freeway” are terms that continue to be used. Thus, the use of the term “Metropolitan Ring Road” seems to have subsided, and there is no longer any indication in the forward strategy documents as to the manner in which any gap between the linked Eastern Freeway and Scoresby Freeway and the Western Ring Road at Greensborough is to be dealt with.
49 In the meantime, some other relevant events occurred. By a memorandum dated 1 May 1996, the Chief Executive of VicRoads advised the then Minister for Roads and Ports in relation to an article that had apparently appeared in a local Healesville newspaper, concerning “the ring road connection between Ringwood and Greensborough.” The memorandum referred to Linking Melbourne, Living Suburbs and the then forthcoming Transporting Melbourne studies. It indicated that the latter two documents had narrowed the area for possible investigation of a link to “generally along the Rosanna Road corridor.” It commented that this was “unlikely to be practical as a basis for carrying out a genuine study of competing options.” The memorandum said:
“Current and anticipated commitments in the eastern suburbs, including the Eastern Arterial and the Eastern Ring Road, mean that funds are unlikely to be available for any new work in the northern corridor for the next decade. Thus it is not necessary to undertake any further investigation at this time.”
50 The Victorian Government released a publication entitled Transporting Melbourne in September 1996. It was described as a strategic framework for an integrated transport system in Melbourne. It contained references to a “metropolitan orbital transport corridor”, which was advanced as a proposal for consideration. The proposal was envisaged as a high-standard road. The following comment appeared:
“To be most effective, a Metropolitan Orbital Transport Corridor needs to be a continuous corridor fully circumscribing the metropolitan area.”
A map in Transporting Melbourne showed broken shading in a broad area between Greensborough and the Eastern Freeway and Scoresby Freeway, with the legend:
“North east access – using existing transport links for the foreseeable future: any future study to encompass all relevant issues and community consultation.”
The text of the document confirms that the use of existing roads and the Eastern Freeway is proposed for a link.
51 In 1997, in the light of submissions received on Transporting Melbourne, the Department of Infrastructure prepared a draft update report. By letter dated 18 December 1997, the Deputy Secretary, Strategic Planning and Economic Services, of the Department of Infrastructure sought from the Chief Executive of VicRoads comments as to the draft update report. In a letter dated 15 January 1998, accompanying comments on behalf of VicRoads, the Chief Executive of VicRoads said:
“The report should make greater reference to the positive economic benefits to Melbourne that have come from the completion of the Western Ring Road and clearly indicate the importance of completing the ring road around Melbourne. In this regard the preliminary results from the Scoresby Transport Corridor work could be used to indicate the importance of the Eastern Ring Road. In regard to the section between Greensborough and Ringwood, the report should indicate that, while the existing roads will be used for the foreseeable future, the most appropriate means of joining the two sections needs to be determined.”
52 The environmental effects statement in respect of the Scoresby Freeway was prepared between February 1996 and June 1998. It was then exhibited to the public for two months and an independent panel, appointed pursuant to s 9 of the Environment Effects Act 1978 (Vic), produced a report, which was submitted to the then Minister for Planning and Local Government in April 1999. In July 1999, that minister issued an assessment of environmental effects, which was accepted by the then Minister for Roads and Ports.
53 By letter dated 3 February 1998, the then Minister for Roads and Ports wrote to a resident of Greensborough. The letter included the following:
“The Government’s transport and planning policies recognise the importance of circumferential travel around the city and the need for an integrated transport and land-use corridor to serve this demand (refer to the enclosed copy of Transporting Melbourne).
However, there are currently no proposals or plans for a continuation of the Ring Road between Greensborough and Ringwood. For the foreseeable future, traffic between the Ring Road at Greensborough and the Eastern Freeway will be accommodated on existing roads.
While it is recognised that a study of options for future links will need to be undertaken at an appropriate time, the timing of such a study has not been determined. Any study which might occur some time in the future will entail detailed and careful consideration of all relevant issues and close consultation with the community.”
54 In early October 2000, the Royal Automobile Club of Victoria (RACV) Ltd, a motoring organisation, published a report entitled Roads to the Future: A Vision for Victoria’s Strategic Highway Network. The report identified fourteen projects which it said could be responsibly funded over a ten year period, with the following object:
“The aim is to create a travel environment that fosters economic growth by supporting trade routes, encouraging regional development, relieving traffic congestion and reducing death and injury.”
55 Two of the projects related to “Metropolitan Ring Road”. The first was “Scoresby Corridor (Ringwood to Frankston)”. The second was “Link between Metropolitan Ring Road at Greensborough and the Eastern Freeway”. After a discussion about the Scoresby Corridor project, the document records that:
“RACV considers that Melbourne’s orbital route is vital to Victoria’s economic future.”
56 The detail of the view expressed in the report about the orbital route was as follows:
“Project: Greensborough – Eastern Freeway Link
Apart from the Scoresby Freeway, the only remaining gap in Melbourne’s orbital corridor is between the Metropolitan Ring Road at Greensborough and the Eastern Freeway. No commitments have been made for this connection, much less a decision about its alignment. RACV believes that this gap must be completed with a new or significantly upgraded road. Determination of the appropriate alignment will require an appropriate planning study, although it might be reasonably expected that a significant part of any such route would be in tunnels.
RACV believes that this planning study should start soon, so that community views about the optimum alignment, the amount of tunnelling and the best route can be determined.
As there are no firm proposals, this report includes a nominal indicative cost of $500 million. The actual figure may be significantly different to that,
depending on the community’s decision about alignment and configuration, and the amount of tunnelling.
With the completion of these two links, Melbourne will have its 360° orbital corridor. These projects are as important on the national scale as the proposed $3 billion Western Sydney Orbital Corridor, a project which is also a candidate for federal funding. RACV argues that the Scoresby Corridor is equally a candidate.”
57 On 3 October 2000, the second respondent, who had become Minister for Transport for the State of Victoria, issued a media release, headed “Batchelor Welcomes RACV Report on Road Network”. The media release contained the following:
“The Minister for Transport, Mr Peter Batchelor, today welcomed a report prepared by the RACV that unveils a 10 year program to restore the status of Victoria’s road network.
Mr Batchelor said proposals in the report had significant economic benefits for Victoria and Australia.
...
Mr Batchelor said some of the proposals identified in the report have already been submitted to the Federal Government for funding submissions. Other proposals required further planning and evaluation.
‘It is pleasing to note that the need for integrated transport solutions has been identified the [sic] report,’ said Mr Batchelor.
...
Mr Batchelor said the RACV was to be congratulated for taking a long-term approach to Victoria’s transport infrastructure needs.”
58 On the following day, 4 October 2000, the PTUA posted on its website a media release in the following terms:
“Another Backflip from Batchelor: Freeway through Yarra Valley back on agenda
The Public Transport Users Association has condemned today’s revelation by Transport Minister Peter Batchelor that the State Government supports a new freeway through Eltham and Warrandyte.
PTUA Secretary Vaughan Williams said that Mr Batchelor’s pledge to support the RACV’s plan Roads to the Future had exploded the fiction that the Government would protect the Yarra Valley ‘Green Wedge’.
Mr Batchelor has recently visited the area assuring local residents and councils that the Government does not support the ring-freeway through the area.
The RACV yesterday released its ten-year plan for road construction, Roads to the Future, which includes a proposed link between the Northern Ring Road at Greensborough and the Eastern (and Scoresby) Freeways at Ringwood at an estimated cost of $500 million. The RACV has acknowledged that Vicroads assisted in the preparation of this plan.
The Herald Sun today reported Mr Batchelor pledging to support the RACV plan.
‘For years the promoters of the Scoresby Freeway have been pretending that there were no plans for the final link across the environmentally sensitive Yarra Valley,’ said Mr Williams
‘Todays [sic] announcement betrays the Scoresby Freeway for what it is – part of a multi-billion dollar ring freeway around Melbourne which would do Los Angeles proud. The fears of many organisations like the PTUA, so recently dismissed by Mr Batchelor, are about to be vindicated.’
‘Mr Batchelor is clearly prepared to throw billions of dollars at roads without any justification while at the same time there is no progress on the planning processes for transport that we were promised before the last election.’
‘Residents and councils in the Yarra Valley have every reason to be concerned by this revelation. It has once again been made perfectly clear that the RACV and Vicroads will never rest until every piece of open space in Melbourne has been asphalted and that Mr Batchelor is their most enthusiastic supporter,’ concluded Mr Williams”.
59 On 5 October 2000, Lachlan McDonald, an adviser to the second respondent, telephoned the office of the PTUA and spoke to Dr Anna Morton. He complained to her that the PTUA’s media release was inaccurate. It is common ground that he complained that the suggestion that the second respondent favoured a freeway through Eltham and Warrandyte was inaccurate. Dr Morton said that she asked Mr McDonald where the freeway link would go and that Mr McDonald said that it would be through Bulleen, not through the green wedge. Counsel for the respondents cross-examined Dr Morton by suggesting that Mr McDonald’s concern was to get accuracy as to what the RACV was recommending. Dr Morton’s response was “either what the RACV was recommending or what the government was supporting or both.” On the face of it, it seems improbable that Mr McDonald would be concerned to persuade anybody at the PTUA as to the precise contents of the RACV report. It is likely that his concern was to convey the attitude of the second respondent, on whose behalf he was telephoning. Although he is still employed in the second respondent’s office, Mr McDonald was not called to give evidence. I infer from this that he would not be able to swear that it was not then the second respondent’s intention that there should be a freeway link through Bulleen. I find that he did say to Dr Morton words to the effect that the link between the Eastern Freeway and the Western Ring Road at Greensborough would be a freeway link through Bulleen.
60 In early October 2001, the Director, Strategic Planning and the Executive Director, Strategic Planning of the Department of Infrastructure forwarded a ministerial briefing to the then Minister for Planning. The document states its purpose to be:
“To advise the Minister of the current position regarding the extension of the Metropolitan Ring Road eastwards from Greensborough, current thinking associated with the developing Metropolitan Strategy and requests that an Integrated Transport Strategy be undertaken in the area.”
61 The bulk of the document advises the Minister in relation to a public acquisition overlay, in favour of VicRoads, which had existed for a number of years, for the purpose of a possible extension of the Metropolitan Ring Road from Greensborough to the east. Such an extension would have facilitated a link with the Eastern Freeway through Eltham and Warrandyte. The document advises the Minister that the overlay should be removed as it is unlikely to be required. In the course of the document, the two officers said:
“Planning investigations associated with the development of the draft Metropolitan Strategy have indicated that the extension of the Metropolitan Ring Road eastwards is not justified. As a consequence it will not be recommending the reintroduction of the Greensborough to Ringwood link. It may however recommend that a road be considered on a southern alignment, constructed partially in tunnel, to link the eastern end of the Metropolitan Ring Road at Greensborough to Bulleen Road. (see Attached Sketch)”
62 The attached sketch, to which reference was made, was a map showing a broad dark line following the current alignment of Bulleen Road from its interchange with the Eastern Freeway to a point a little to the north of Manningham Road and a dotted line from there to the southern end of the Greensborough Highway. The dotted line was labelled “Possible Southern Alignment In Tunnel”.
63 Shortly after that, a document entitled Draft Metropolitan Strategy, dated 16 October 2001, was circulated. It contains the following:
“The need to complete the Metropolitan Ring Road must be resolved. Construction of the Ring Road will not occur through the Eltham area and therefore an alternative route must be considered. This review will be undertaken using the Strategy’s sustainability principles that consider the value of the project in terms of economic, social and environmental benefits.
Action 5.30: A review will be undertaken of the need and options for completion of the Metropolitan Ring Road.”
64 As I have said, the original application in this proceeding was filed on 26 October 2001. Three days later, on 29 October 2001, the applicant filed an affidavit of Michael Buxton. In this affidavit, Dr Buxton advanced the contention that an assessment of the likely environmental effects of the Scoresby Freeway must take account of the effects of the whole Eastern Ring Road, including those in relation to the Bolin Bolin Billabong and the Banyule Flats. Dr Buxton referred to threatened plant species in both locations and to four migratory bird species, protected under international instruments, present in the Banyule Flats. Service of the original application, of the affidavit of the applicant in support of it, and of Dr Buxton’s affidavit was effected on the first and second respondents on 29 October 2001.
65 As was intended, the Draft Metropolitan Strategy was the subject of comment by several officers in VicRoads. On 29 October 2001, one such officer, Ken Russell, made the comment with respect to the recommendation numbered 5.30, “REWORD – Should match Minister’s latest statements”. The Manager, Planning Investigations, Clive Mottram, made his comments on 15 November 2001. They included the following:
“Draft Strategy – lines 2514 to 2519 – this section refers to the need to complete the Metropolitan Ring Road.
Comment
The Minister for Transport has very strongly stated in Parliament the Government’s position that it has no proposals for a road from Bulleen to Greensborough. It would be most unfortunate if the strategy went out saying this, in terms of the Court case. I understand that this issue may have already been addressed.
I note also that Dr Michael Buxton alleges in his court affidavit that reference to a possible link in this area was deleted from the final version of the previous government’s ‘Living Suburbs’ policy. If Dr Buxton is aware of this reference in the draft Metropolitan Strategy (and you may know better than I if he is) and he then refers to its recent deletion (a hypothetical matter at this time as he hasn’t [sic] referred to this yet) then that is an issue we will have to deal with in the Federal court also, namely that the final document represents the Government’s policy, not earlier drafts prepared in Deparments [sic].”
66 Murray Cullinan also made a relevant comment, on 20 November 2001:
“1. Raising this potential study at this location seems odd
2. Current court case by PTUA claims that Scoresby Freeway will force a link through Melbourne’s NE. This could appear to support the PTUA case despite work having been done to show that it is not correct Review location
Reconsider inclusion of this study”.
67 A further draft of the Metropolitan Strategy was produced, omitting entirely the passage I have quoted above from the earlier draft. The omission appears not to have been influenced by the comments of Mr Mottram and Mr Cullinan, because the draft was produced on 29 October 2001, the day of service of the court documents. The final version of the Metropolitan Strategy was published on 8 or 9 October 2002 without the passage I have quoted.
The statements to Parliament
68 On 9 October 2001, the second respondent, who is a member of the Legislative Assembly, made a statement to that house of the Victorian Parliament in the following terms:
“The honourable member for Ivanhoe raised with me an issue that has been circulating in his electorate and surrounding electorates: a fear campaign, a smear campaign, that is being run by a number of people.
There is a very wrong suggestion that the government has a proposal to build a freeway through the Yarra Flats to link the Eastern Freeway with the northern metropolitan ring-road. I put on the record that the government has no such proposal under consideration. Funding for such a freeway is not provided for in this year’s budget or in the forward estimates of the Victorian government. The project is not part of the Bracks government’s very successful Linking Victoria strategy, which has set about revitalising the state’s roads, rail and ports.
It is not on our radar. It is a proposal in the minds of people like the federal member for Menzies and the president of the Public Transport Users Association (PTUA), who is an adviser to the Liberal Party and the shadow Minister for Transport. It has even been raised by an honourable member for Templestowe in the other place and the honourable member for Bulleen.
There is no truth in the suggestion. It is a campaign designed to get people to join the PTUA or to put fear into people living in the area. It is a tragic and sleazy attempt by a conspiracy of the deluded to try to frighten people living and working in this area. I need to set the record straight once and for all, and these people will have no basis for making the suggestions in the future.”
69 After the proposals for the Scoresby Freeway had been submitted to the Environment Minister, on 19 March 2002, in the course of the proceedings of the Legislative Council, a member of that house of the Victorian Parliament asked a question of the Minister for Energy and Resources, representing the second respondent as Minister for Transport. The question was:
“Does the Government support a freeway link between the Eastern Freeway and the Greensborough bypass.”
70 The answer given was:
“The Victorian Government is not considering any proposal in relation to a freeway link between the Eastern Freeway and the Greensborough Bypass.”
71 Counsel for the respondents sought to tender in evidence the Hansard reports of the statement of 9 October 2001 and the question and answer of 19 March 2002. He sought to rely on what was said in parliament to establish the truth of the proposition, contained in the referral to the Environment Minister, that the current government had clearly stated that there was no proposal for a new freeway linking Scoresby Freeway/Eastern Freeway with the Metropolitan Ring Road. Having tendered the statements for this purpose, counsel for the respondents then contended that it was not open to the applicant to argue, or for the Court to find, that either statement was untrue or misleading. These issues raise questions of the effect of parliamentary privilege.
72 Section 19(1) of the Constitution Act 1975 (Vic) provides:
“The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.”
73 To ascertain what were the relevant privileges immunities and powers enjoyed and exercised by the House of Commons on 21 July 1855, it is necessary to start with the Bill of Rights 1689 1 Wm & M Sess 2 c 2 (“the Bill of Rights”), Art 9 of which provided:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
74 Although there have been many authorities on the question of the extent of the privilege thus given to a parliament in a Westminster-style democracy, the extent of the privilege remains unclear in some respects. Most of the cases have been concerned with issues arising in defamation proceedings. It is possible that cases may continue to arise for a long time with fact situations making it difficult to determine whether evidence of what has been said or done in parliament is admissible, or can be used in a particular way, in court proceedings. The present case may be one such case. The Commonwealth Parliament was apparently so dissatisfied with the narrow ambit given to parliamentary privilege in R v Murphy (1986) 5 NSWLR 18 that it enacted the Parliamentary Privileges Act 1987 (Cth). In that Act, the Commonwealth Parliament codified its privileges. Whether in so doing it extended parliamentary privilege beyond that created by Art 9 of the Bill of Rights may be a question that has some relevance to this proceeding. Otherwise, this proceeding is not concerned with the terms of that Commonwealth Act.
75 An Act of the Victorian Parliament would not ordinarily have a direct effect on the exercise of the judicial power of the Commonwealth by this Court. Section 79 of the Judiciary Act 1903 (Cth) provides:
“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
No provision of the Constitution, or of any Commonwealth Act, having the effect of preventing s 79 operating to make s 19 of the Constitution Act 1975 (Vic) applicable in this proceeding was raised in argument. Indeed, s 10(1) of the Evidence Act 1995 (Cth) expressly provides that that Act does not affect the law relating to the privileges of any Australian parliament or any house of any Australian parliament. There appears, therefore, to be no constitutional or other difficulty about the recognition by this Court of the privileges of the two houses of the Victorian Parliament. The question in the present case is what is meant by impeaching or questioning the freedom of speech and debates or proceedings in parliament?
76 Aside from its historical context, which was a doctrinal struggle for supremacy between absolute monarchy and parliamentary democracy (see Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 22nd ed. 1997 at pp. 68 – 81), the privilege has a modern rationale in the constitutional separation of powers (see Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332). A member of parliament, must be able to participate in debates and other proceedings in parliament, safe in the knowledge that he or she will not be called to account in a court in respect of the truth or content of what is said (see Prebble at 334 and Sankey v Whitlam (1978) 142 CLR 1 at 35 per Gibbs ACJ). Only parliament has the right to discipline its members for their conduct in its affairs. The courts must refrain from anything which would interfere with or usurp this function of parliament (see Prebble at 334). Further, the privilege attaches to parliament, and not to its members (see Sankey at 36 – 37 per Gibbs ACJ). An individual member cannot waive it by participation in a court proceeding in which it might be considered useful, or desirable, to put in issue what was said in parliament (see Hamsher v Swift (1992) 33 FCR 545 at 564).
77 At the same time, Art 9 of the Bill of Rights cannot be taken absolutely literally. It is a fundamental tenet of a Westminster-style democracy that there be debate in the community about political issues. People are free to challenge and criticise what is said in parliament and to do so publicly, vociferously and stringently. Any suggestion that Art 9 now precludes media debate about the proceedings of parliaments, including vigorous debate about whether a member has misled parliament, would now be greeted with derision (see Pepper v Hart [1993] AC 593 at 638 per Lord Browne-Wilkinson, with whom Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Griffiths, Lord Ackner and Lord Oliver of Aylmerton agreed). No doubt the original purpose of Art 9 was to constrain the executive arm of government, in the form of the monarch (see Pepper at 638 per Lord Browne-Wilkinson). In Westminster-style democracies, however, the executive has come to dominate the legislature, so that, through the party system, individual members of parliament can face effective discipline by the executive in respect of their roles in proceedings in parliament. In the case of non-government members, party discipline is also relevant in constraining the conduct of members of modern parliaments and is effective, even in cases where it might be thought to make members accountable other than to parliament itself for what they say in the course of parliamentary proceedings.
78 As a result of these developments, Art 9 seems to be construed now as a constraint on the judicial arm of government. The fundamental rationale of a court is the resolution of legal disputes through the exercise of impartial decision-making power and the ability to enforce the resulting decisions. Courts have a duty to resolve the disputes that are brought to them. There is therefore obvious scope for conflict between the duty of a court to decide a particular case according to law and the privilege of parliament to retain control over its own proceedings in a case which raises, or has the potential to raise, an issue about what has occurred in parliamentary proceedings.
79 This conflict has been resolved in part by the development by courts of rules limiting the extent to which courts can examine and take account of proceedings in parliament. The development of such rules is far from complete and the content of some that have been developed is not altogether clear.
80 It appears to have been established that a court is able to receive evidence, by way of the tender of the records of parliamentary proceedings in Hansard, that a particular member addressed the House on a particular date at a particular time, because this is nothing other than historical record. At one time, there was a controversy as to whether the court could receive evidence of the words spoken, as distinct from evidence that something was said, but this appears to have been resolved in favour of the view that the words spoken can be tendered in evidence. See Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 451 – 453 and Buchanan v Jennings [2002] 3 NZLR 145 at 158 – 159. The English courts do not appear to have found it difficult to examine the content of a statement to parliament in one circumstance. That is where the statement contains a minister’s reasons for a decision of which judicial review is sought. Apparently, examination of the content of such a statement, even for the purpose of considering whether the decision is so unreasonable that no reasonable decision-maker could have made it, is not considered to be impeaching or questioning the statement. See R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696. With this exception, it seems that any form of critical examination of the content of what has been said to parliament will not be undertaken by a court. It is certainly not permissible to tender the content of a statement to parliament for the purpose of proving that it was false or misleading. See Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223, a case decided under the Parliamentary Privileges Act 1987 (Cth), and Hamilton v Al Fayed [2001] 1 AC 395 at 403 per Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed.
81 One possibly controversial question is whether it is permissible for a court to rely on the content of a statement to parliament as evidence of the truth of a fact stated. On one view, this would be far removed from impeaching or questioning the statement. It would be accepting the correctness of the statement. The difficulty is that such a use of a statement to parliament would operate to the disadvantage of the party against whom it was used. That party would be unable to contend for the absence of the truth of the facts stated without impeaching or questioning the statement itself. It is difficult to find clear authority on this question. In R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233, a Divisional Court refused to allow a Hansard report of a proceeding in parliament to be tendered to support a ground for judicial review of a decision made outside parliament. In doing so, the court relied on Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, a defamation case in which the plaintiffs had not been permitted to rely on statements by the defendant in parliament in order to demonstrate malice. In the judgment of the Divisional Court in Anderson Strathclyde at 239, Dunn LJ said:
“In my judgment there is no distinction between using a report in Hansard for the purpose of supporting a cause of action arising out of something which occurred outside the House, and using a report for the purpose of supporting a ground for relief in proceedings for judicial review in respect of something which occurred outside the House. In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament.”
82 Subsequently, in Pepper at 639, Lord Browne-Wilkinson expressed the view that Anderson Strathclyde had been wrongly decided. Pepper was a case in which the House of Lords decided that the use of clear ministerial statements as an aid to the construction of ambiguous legislation did not amount to questioning or impeaching the proceedings in parliament and did not contravene Art 9 of the Bill of Rights. The House of Lords seems to have refrained from grappling with the question whether the resolution of an ambiguity in a ministerial statement, or embarking on an inquiry as to whether the statement is clear or ambiguous, would amount to impeaching or questioning the statement. There may well be circumstances in which the expression of a view that a statement made to parliament is not clear will be tantamount to a finding that the maker of a statement has misled parliament.
83 It should be noted that, in its codification of parliamentary privilege, the Commonwealth Parliament has adopted the view that relying on the truth of a statement to parliament in a court proceeding amounts to a breach of the privileges of the parliament. Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) provides:
“In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of
anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention
or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly
or partly from anything forming part of those proceedings in
Parliament.”
84 In the light of the view expressed in Pepper as to the incorrectness of Anderson Strathclyde, there must be some doubt as to whether s 16(3) is merely a codification of the law, or effects a change in the law by enlarging the privileges of parliament. One learned author has expressed the view that s 16(3) goes beyond mere codification (see Campbell Parliamentary Privilege and Admissibility of Evidence (1999) 27 Federal Law Review 367 at p. 381).
85 The proposition that a statement made to parliament can be tendered to a court to prove the truth of its contents, but that the truth of its contents cannot be the subject of any contest in the court, is fraught with difficulty. If accepted, it would have the effect of enabling a member of parliament to create unchallengeable truth with respect to a factual situation, simply by making a statement to parliament containing assertions of fact. The notion of manufactured truth is irreconcilable with the duty and function of a court to find the facts relevant to the issues in dispute in a case before it. Issues would arise as to the length of time for which a statement to parliament could be considered operative to compel acceptance by a court of the facts stated. The unacceptability of the proposition is demonstrated by postulating the existence of more than one statement to parliament, when there is a conflict between the statements. Plainly, a court could not be placed in the situation in which opposing parties tender the conflicting statements and the court is obliged to accept the truth of each of them. There are therefore many sound reasons for taking the view that it is not open to a party to tender a statement made to parliament as evidence of the truth of the facts stated.
86 I am therefore of the view that it is open to the respondents in the present case to tender the Hansard reports of the statements made to the Victorian Parliament on 9 October 2001 and 19 March 2002. Those records can only be tendered for the purpose of establishing that those words were said to parliament. The Court is not able to accept the truth of anything stated in them for the purpose of determining the issue before it, namely whether the referral to the Environment Minister contains misleading information. The Court cannot entertain a dispute as to whether the statement of 9 October 2001 satisfies the description of a clear statement, found in the referral to the Environment Minister. To the extent to which this view might be thought to hamper the respondents in resisting the applicant’s case, that is the result of the requirements of parliamentary privilege. The respondents are in no way constrained from leading evidence as to the actual intention of the Victorian Government at the relevant time. I should also note that, having regard to the view I take, it seems that the
statement of 19 March 2002, coming as it did after the referral to the Environment Minister, has no relevance to the present proceeding.
87 The central issue before the Court is whether the respondents, or any of them, provided misleading information to the Environment Minister in the referral relating to the northern section of the Scoresby Freeway. The Court has a clear duty to resolve that issue. If it does so in a way that leads to the conclusion or the inference that anyone making a statement to parliament has misled parliament, there is no breach of parliamentary privilege. As long as the Court refrains from making a finding, or drawing an inference, to the effect that parliament has been misled, it commits no breach of parliamentary privilege and does not trespass upon the area for which parliament alone has responsibility, namely control of its own proceedings. To hold otherwise would be to abdicate the Court’s responsibility to decide the issue before it.
The alleged misleading
88 In [23] above, I have quoted the relevant passage from the referral of the northern section of the proposed Scoresby Freeway to the Environment Minister. It is the last paragraph of the passage quoted that the applicant alleges is misleading. The paragraph preceding it provides a context for the crucial paragraph.
89 The applicant does not allege that the impugned paragraph contains any literal falsehood. As the history set out above shows, it is true that there have been references to an investigation of routes linking the Eastern Freeway with the Metropolitan Ring Road in previous government strategies and reports. The second respondent said the words reported in Hansard on 9 October 2001. I am therefore bound to accept the proposition that the current government has stated that there is no proposal for a new freeway linking Scoresby Freeway or the Eastern Freeway with the Metropolitan Ring Road. For reasons given above, the applicant cannot contest this proposition. Also for reasons I have given above, the question whether the government has clearly so stated is not justiciable. It is true that there is no planning scheme reservation for any link road and no state level planning and environmental clearance for a road in the relevant corridor. It is true that the independent panel investigating the Scoresby transport corridor was advised that there would be very little traffic impact from the Scoresby Freeway on routes crossing the Yarra River (although the applicant contends that this advice was incorrect). It is also true that the action the subject of the referral, ie the northern section of the Scoresby Freeway, by itself, would have no effect on national environmental values in the Bulleen and Banyule Flats areas.
90 The applicant contends that the literal truth, as stated in the paragraph, is misleading because it fails to reveal the full situation. He seeks a finding that there is a secret plan within the bureaucracies of VicRoads and the Victorian Government to construct a freeway link from the Eastern Freeway at its Bulleen Road interchange to the Greensborough Highway. The plan is secret because it would be unpopular and the government is unwilling to risk a public backlash by announcing it. In conjunction with this contention, and in the alternative, the applicant alleges that the construction of the Scoresby Freeway will create inevitable demand for the completion of the last link in the Metropolitan Ring Road. A route through Eltham and Warrandyte having been ruled out, the only viable way to satisfy this inevitable demand will be to construct a freeway link from the Eastern Freeway at its Bulleen Road interchange to the Greensborough Highway. This inevitability so closely connects the northern section of the Scoresby Freeway with the risk to the environment, especially the Bolin Bolin Billabong and the Banyule Flats, that it should have been mentioned in the referral document, to give the Environment Minister all the information he needed to determine whether the northern section of the Scoresby Freeway is a controlled action. It is necessary to determine whether these contentions are borne out by the evidence. Before turning to that question, however, it is necessary to look at the context in which the crucial paragraph appears in the referral document.
91 The opening paragraph of the information supplied under item 2.6 in the referral form refers to “a wider range of transport improvements planned or being implemented”. These are referred to as “related transport projects”. The references to the extension of the Eastern Freeway to Ringwood and to the southern section of the Scoresby Freeway are obviously references to transport improvements planned or being implemented, and obviously references to projects. What is not so obvious is what follows. A somewhat vague reference is made to a number of heavy rail, light rail and bus improvement projects in the Scoresby corridor, “some of which are yet to be fully defined.” Reference is also made to provision for “possible future public transport services” in the median of the Scoresby Freeway. This is followed by reference to two other “projects underway [sic] or planned”, crossing the Scoresby corridor. Then there is a statement of the absence of plans to construct a freeway in an existing reservation leading to Healesville, outside the metropolitan area to the east. The list of “transport improvements planned” and “related transport projects” thus includes unspecified and undefined public transport projects. To suggest that something unspecified and undefined can be “planned” is obviously to give a wide meaning to the term “planned”. If it were the case that the first and third respondents had an intention to construct a freeway link, even though that freeway link was not yet fully defined and was perhaps only a “possible future” project, failure to mention it in the context of item 2.6 in the referral document might be said to be misleading.
92 The applicant also drew attention to the variations in language between the last paragraph of item 2.6 in the referral and the earlier paragraphs. After dealing with “transport improvements planned”, including those “yet to be fully defined” and those which are “possible future public transport services”, the document then becomes more specific. It deals in more concrete notions of the absence of a proposal for a new freeway, and the absence of a planning scheme reservation and of planning and environmental clearance for a road in the relevant corridor. The applicant says that this change from the vague to the specific supports the view that there is a secret intention to construct a freeway link.
93 The secret plan contention also draws support from the history of road planning set out above. Plainly, at the time of the publication of Linking Melbourne in February 1994, there was an actual intention to construct such a link. Although, after 1994, expressions of an intention to construct such a link, or to explore options for a route for such a link, became less firm and eventually disappeared from the official documents, their disappearance was not accompanied by any positive statement that such a link would not be built. Instead, at first there were statements to the effect that there was no timeframe fixed for the necessary study. Then the phrase “foreseeable future” came to be used with reference to the use of existing roads as a link. The propensity of references to the need for a link to appear in drafts of documents, and then to be eliminated before the final versions are published, is at least consistent with the existence of a secret intention to build a link. Mr McDonald’s statement to Dr Morton in October 2000 to the effect that there would be a freeway link through Bulleen also suggests the existence of such an intention at that time. It is on the accumulated evidence of this nature that the applicant’s case for the existence of a secret plan rests.
94 Against that case, the respondents rely on express evidence of the absence of any plan or intention to construct a freeway link. It is now necessary to review that evidence.
95 On behalf of VicRoads, the referral of the northern section of the Scoresby Freeway to the Environment Minister was signed by Clive Mottram, who holds the position of Manager, Planning Investigations with VicRoads. He and those responsible to him in the Planning Investigations Department of VicRoads are responsible for seeking environmental and planning approvals for proposed road projects. Mr Mottram swore an affidavit filed in this proceeding. In that affidavit, Mr Mottram swore:
“VicRoads is not presently considering the construction of a larger project called the Eastern Ring Road that would incorporate a freeway connection between Ringwood and Greensborough.
...
In order for VicRoads to fulfil its statutory obligations, it is necessary for it to consider a very wide range of road proposals and examine their associated benefits and detriments. The fact that VicRoads has given consideration to a particular proposal does not mean that the proposal will be developed.
Additionally, VicRoads’ spending is subject to control by the State. A proposal of the kind the Applicant alleges would require a significant level of funding if it were to be acted upon. Preliminary funding would also be required to enable the concept to be developed sufficiently for the relevant development approvals to be obtained and for a decision to be made about whether the construction should be financed. Currently no funds have been allocated for either project development or construction of a link between the Metropolitan Ring Road and the Scoresby Freeway. VicRoads is not doing any work in relation to the link referred to by the Applicant, either at the strategic or project planning levels.
...
There is no plan presently being developed by VicRoads for the construction of the road described ... as ‘the remainder of the Eastern Ring Road’.”
96 In cross-examination, Mr Mottram said that he was not aware of a link between the Eastern Freeway at Bulleen and the Western Ring Road at Greensborough having been ruled out altogether by a previous government, otherwise than by the use of the expression “the foreseeable future”, which Mr Mottram conceded to be ambiguous. Mr Mottram was also unaware of any document within VicRoads containing a statement to the effect that such a link should not be pursued further. His view was that the policy of the current government had been stated by the second respondent in parliament on 9 October 2001 and VicRoads was bound to apply, and was applying, that policy. He did say that, among officers of VicRoads with whom he had discussed the matter, there are some who support the link and there are some who are against it. Although Mr Mottram was guarded in a number of his answers in cross-examination, and reluctant to answer some questions, I do not take the view that he was attempting to mislead the Court. I regard his evidence as being against the proposition that there is a secret plan or intention within VicRoads to build a freeway link in the area of concern.
97 On behalf of the third respondent, the referral to the Environment Minister in respect of the northern section of the Scoresby Freeway was signed by Peter Sammut. He is an employee of VicRoads, seconded to the third respondent as Project Director, Scoresby Integrated Transport Corridor, in the Department of Infrastructure. Mr Sammut swore two affidavits filed in this proceeding. One dealt with the procedures in relation to the lodging of the referrals in respect of the Scoresby Freeway with the Environment Minister. The other dealt with the manner in which the question whether the southern section of the Scoresby Freeway, which the Environment Minister determined to be a controlled action, should proceed was to be determined. Apart from denying that the referral in relation to the northern section was in any way misleading, Mr Sammut did not deal with the question whether there exists any plan or intention to build the remaining link. He was not cross-examined.
98 Kevin Hadingham is employed by VicRoads as Manager Road System Strategies. He is responsible for monitoring the state of the Victorian road network and identifying ways in which it may need to be changed in order to respond to traffic demand. He swore an affidavit in which he confirmed a number of statements in Mr Mottram’s affidavit. In particular, Mr Hadingham confirmed that VicRoads is not presently considering the construction of a larger project called the Eastern Ring Road, that currently no funds have been allocated for either project development or construction of a link between the Western Ring Road and the Scoresby Freeway, that VicRoads is not doing any work in relation to the road the applicant alleges, either at the strategic or project planning levels, and that there is no plan presently being developed by VicRoads for the construction of the road described as the remainder of the Eastern Ring Road. Mr Hadingham was not cross-examined.
99 Rudy Kohut holds the position of Senior Project Manager in the Strategic Planning Division of the Department of Infrastructure. He affirmed two affidavits, dealing with the process whereby the Metropolitan Strategy, published on 8 or 9 October 2002, was produced. This was the document a draft of which is relied on by the applicant as evidence of the existence of a secret plan or intention to build a freeway link through Bulleen. In neither of his affidavits did Mr Kohut refer to the question whether there existed any plan or intention to construct that link. He was cross-examined, but the applicant did not ask him any questions on this issue.
100 In his submissions, the applicant drew attention to the fact that a number of people who might have been in a position to know whether a secret plan or intention existed did not make affidavits and were not called to give evidence. As well as Mr McDonald, to whom I have referred in [59], the applicant referred to the principal authors of the draft Metropolitan Strategy, John Collins and Geoff Anson, as well as Eric Keys, who drafted the part of the Metropolitan Strategy that referred to the need to complete the Metropolitan Ring Road, which was deleted before the final document was published. Failure to call a witness who might be able to give relevant evidence can be a ground for drawing an inference otherwise
available from evidence before a court. It cannot be a substitute for the lack of such evidence.
101 On the evidence before me, the applicant has failed to establish that there is a secret plan or intention on the part of the respondents to build a freeway link between the Eastern Freeway and its interchange with Bulleen Road and the Metropolitan Ring Road at Greensborough. I cannot be satisfied on the balance of probabilities that such a secret plan existed at the time of the referral. If I were to find that there was such a plan, it would be necessary to find that Mr Mottram was giving evidence that was deliberately false, and to find so on the basis of evidence that, apart from the conversation between Mr McDonald and Dr Morton, was entirely circumstantial and consistent with other explanations. Even if, at the time when Mr McDonald spoke to Dr Morton, it was the intention of the second respondent that a freeway link should be constructed, it does not follow that he remained of that view at the time of the referral. If there had been a secret plan, Mr Mottram would be expected to know of it. I am not prepared to draw an inference that such a plan existed in the face of his evidence to the contrary. It is therefore necessary to turn to the question whether the construction of the Scoresby Freeway, joining the Eastern Freeway near Ringwood, makes the construction of such a link inevitable.
102 The applicant conceded that the statement in the referral of the northern section of the Scoresby Freeway to the Environment Minister, to the effect that the independent panel investigating the Scoresby Corridor was advised that there would be very little traffic impact from the Scoresby Freeway on routes crossing the Yarra River, was literally true. The independent panel had been so advised, at least in relation to motor car traffic, apparently on the basis that most journeys using a ring road involve the use of small sections of such a road. Most people will take a direct route, rather than using the ring road to reach a destination on the opposite side of the city that the ring road circumscribes. The applicant did suggest that the independent panel had been misled by such advice, but that is not a question falling within the issues that the Court must determine in this case. It may be accepted that those who use a freeway network from starting points nearer to the centre of the city concerned will often use a radial freeway, and then a small section of a ring road to transfer to another route away from the city. Ready examples are provided at present by those who use the Western Freeway and then the Western Ring Road to transfer to the freeway leading to Ballarat, or those who use the Tullamarine Freeway and then the Western Ring Road to transfer to the Hume Highway.
103 In [28], I have referred to Linking Melbourne. That document identified as a purpose of joining the Western Ring Road and the Eastern Ring Road the improvement of access between the eastern and south-eastern suburbs and the northern suburbs, Hume Highway and Melbourne Airport. In other words, that document specifically contemplated that an Eastern Ring Road link would be used by significant numbers of people over long distances for those purposes. Similarly, the 1995 forward strategy document, to which I have referred in [31] – [35], identified linking manufacturing areas in the eastern and south-eastern suburbs of Melbourne to, among other things, air terminals and the national highway network as an objective. In other words, it recognised that there would be a desire to move significant numbers of commercial vehicles over long sections of a ring road, to provide access to Melbourne Airport and the Hume Highway, among other destinations.
104 These documents were written prior to the construction of the City Link system. It is possible now for traffic from the south-eastern suburbs of Melbourne to use the Monash Freeway, City Link and the Tullamarine Freeway to reach the airport and, by travelling east along the Western Ring Road, to transfer from the Tullamarine Freeway to the Hume Highway. A journey using City Link involves the payment of tolls for various sections of the roads part of that system.
105 A question therefore arises whether the construction of the northern section of the Scoresby Freeway is likely to result in the diversion of significant amounts of traffic that would otherwise have used the Monash Freeway, City Link and the Tullamarine Freeway onto the Eastern Freeway and thence north to Greensborough. The answer to such a question would depend upon how particular drivers or operators, particularly of commercial vehicles, viewed the trade-off between the payment of tolls on City Link and, in some cases, the travelling of additional kilometres on the existing system, against the need to spend some time on ordinary roads to get from the Eastern Freeway to Greensborough. The applicant stated that the advice given to the independent panel was in terms of car journeys, not of truck journeys. The subject of commercial traffic was dealt with briefly by the National Institute of Economic and Industry Research (“the NIEIR”) in a report dated May 1996, which became part of the documents making up the environmental effects statement. That report contained the following passage:
“5.4 Traffic related matters
Moving to more specific transport matters, with the survey of Corridor firms identifying freight improvements to the South East Arterial as the major strategic road priority for the Corridor, followed by upgrading of access to/from the north of Melbourne, the scale of possible road upgrading in the corridor to the north and the selection of the most appropriate southern commencement point for such upgrading become important economic efficiency issues for the study. Whether upgrading of existing Corridor and nearby north-south arterials, to deal with peak congestion concerns, supported by improvements to the north-east to complete access to/from the north, can meet medium to longer term needs must be investigated, compared to higher standard solutions. Any such package of arterial upgrading (e.g. duplication) needs to encompass consideration of construction of some new routes, such as a Dandenong Bypass.
The analysis of freight movement patterns in Section 4 has raised the issue of prospective freight diversion away from the inner Melbourne area if a major new eastern ring route is built. While the estimates of potential diversion tonnages presented in that section can be taken as no more than first guesstimates, they do suggest that this issue is one of importance for the study, in both traffic/economic terms and in terms of environmental and social impacts. By way of example, if 9 million tonnes of freight traffic was contestable between the central route to/from the north and an eastern route and if all this traffic diverted to an eastern route, this would represent a significant level of traffic diversion. If one assumes (say) 18 tonnes per truck and 250 work days per year, some 2,000 trucks per day would be involved (more if average loadings were less), which would represent a significant proportion of truck traffic on City Link (if that was the central route to be used). This estimate of potentially divertable traffic seems high at first glance but it indicates the need for much more careful analysis of this issue in the context of the Corridor study.”
106 The figure of nine million tonnes of freight traffic, used as the basis for the calculation in this passage, is a “very cautious estimate” reached in the section of the NIEIR report numbered 4.1 as freight that might potentially switch from a central corridor to an eastern ring corridor to or from Melbourne’s north, if such a route were available. The calculation in the passage I have quoted is based on the assumption of 100 per cent diversion from a central route to an eastern route. Even if the assumption were made of only 50 per cent diversion, on the figures given by the NIEIR, this would result in 1,000 trucks per day using the eastern route. If, instead of the eastern route being a complete freeway ring road, it was one that involved using ordinary roads, with traffic lights and bottlenecks at river crossings, a lower diversion rate could be expected. It is impossible for me to calculate what such a rate might be, as it would be dependent on the sort of trade-off to which I have referred. The longer the delays in crossing the river, waiting at traffic lights and mingling with other traffic, the more drivers and operators are likely to prefer to pay the tolls and take the long way round on City Link, assuming that there will not be significant delays on that system. The time of day of a journey, and the consequent state of other traffic, would also be a factor.
107 The arguments in favour of the completion of a ring road spoke of substantial economic benefits that would be expected to flow from linking the outer south-eastern suburbs of Melbourne with the Hume Highway and the Melbourne Airport. It is impossible to accept that such economic benefits would flow if there were a complete ring road but that there would be no economic benefits from a partial ring road involving a link using existing roads. It is therefore impossible to accept that all commercial traffic will continue to use the Monash Freeway, City Link and the Tullamarine Freeway once the Frankston Freeway and the Monash Freeway are linked to the Eastern Freeway by the Scoresby Freeway. It must therefore be the case that there would be some increase in commercial traffic using a link involving existing roads, up to the point at which the congestion on those roads became severe enough to lead operators and drivers to take the view that their costs were increased by using that route, as against the payment of tolls and taking the long way round, using City Link. What might be an acceptable level of congestion cannot be predicted accurately on the evidence before me. It is a safe assumption, however, that some commercial transport operators, faced with the choice, will at least try out the route using the northern section of the Scoresby Freeway, the Eastern Freeway and the Western Ring Road from Greensborough, using a link involving existing roads. Of those who experiment, some will be turned away by the experience but it is likely that others will persist and that experimentation will continue.
108 In my view, it is probable that there will be an increase in traffic levels, particularly commercial traffic levels, on the existing roads which, for the foreseeable future, are intended to constitute the link between the Eastern Freeway and Greensborough. As crossing points over the Yarra River are limited in number, the choice of routes is not great. Some traffic might use the Fitzsimmons Lane Bridge, but the greatest pressure is likely to be on the Banksia Street crossing. The shortest distance for a link will involve leaving the Eastern Freeway at its interchange with Bulleen Road and Thompsons Road, proceeding north along Bulleen Road to its intersection with Manningham Road, turning west to cross the river by the Banksia Street Bridge and then north again along Rosanna Road, to link with Lower Plenty Road and the Greensborough Highway. As I have said, the numbers of vehicles using this route will depend upon the level of congestion on those roads that is acceptable to persons faced with the choice, in the light of the other option to use City Link. In my view, it is probable that such a level of congestion will be significantly higher than the level presently caused by traffic using those existing roads. Indeed, it would hardly be surprising if, having designated those existing roads to be the link between freeways for the foreseeable future, the respondents were to find that people used those roads as such a link. In a sense, it is the very thing intended. Although it might have been literally true that the independent panel was advised that there would be very little traffic impact from a Scoresby Freeway on routes crossing the Yarra River, it is probable that a significant number of vehicles, including commercial vehicles, will use the “link” provided by “existing roads”.
109 If such a development should occur, it will have a significant effect on the process of determining whether a freeway link is to be built in the future. Existing users of the roads that will become the link, as well as those who live and work on and near those roads, will be affected adversely by any significant increase in traffic volumes on them. Even if modifications are to be made to those roads to facilitate the flow of traffic from one freeway to the other, such modifications will only be a factor in determining how much traffic will be on the roads until its volume reaches the level of congestion that is found to be unacceptable. Disaffection with traffic volumes on existing roads will lead to an increase in support for the construction of a freeway link, as a means of alleviating the situation for those who need to use the existing roads. In this way, there is the prospect that there will come to be a division of opinion in the community between those who might be adversely affected by a freeway
link and those who are adversely affected by the absence of one. Such a division increases the likelihood that a government in the future will decide that a link can, and should, be built.
110 In my view, such a course of events is far from fanciful. In his evidence, Mr Mottram referred to the advice provided to the independent panel, which suggested the likelihood of a two and a half per cent maximum increase in traffic at several locations crossing the Yarra River as a consequence of the construction of the Scoresby Freeway. He referred to the fact that people wishing to travel from the outer-eastern suburbs of Melbourne to the north do not have a lot of choices now and suggested it was not surprising that transport modelling done by expert consultants found that there would not be much impact. He also referred to a study for a possible future connection between the Eastern Freeway and the Tullamarine Freeway. When I pressed him for his view, he said that, as a resident of the East Ivanhoe area, travelling from time to time along the Eastern Freeway and leaving it at Bulleen Road, he did not detect enormous amounts of traffic leaving the Eastern Freeway at Bulleen Road at present. He found it hard to see enormous change in that. He failed to grapple with the proposition that the high level of industrial activity in the south-east of the metropolitan area, and the desire of people engaged in that activity to send and receive goods by road, would have a significant impact. In my view, in this respect, Mr Mottram was simply unwilling to admit the obvious – that a Scoresby Freeway linked with the Eastern Freeway near Ringwood will attract significant traffic, including commercial traffic, proceeding from the outer south-eastern metropolitan area towards the Hume Highway and Melbourne Airport, at least up to whatever level of congestion is regarded as making the use of City Link a preferable alternative. In my view, there is a probability that a significant increase in traffic using the Banksia Street Bridge route that I have described will occur, with the consequent boost to the impetus for a freeway link in the way I have described.
111 There can be little doubt that there is a body of opinion in favour of a freeway link between the Eastern Freeway at its Bulleen Road interchange and Greensborough within VicRoads and the Department of Infrastructure. Mr Mottram’s evidence was that he has discussed the matter with a number of officers of VicRoads and there are some who support the link, as well as some who are against it. Mr Mottram’s own view was that, if such a link were to be built, a Bulleen route would be a more likely place than a route through Warrandyte. Clearly, there is opinion within the Department of Infrastructure that a link is necessary. This view was expressed by the authors of the draft Metropolitan Strategy, who are senior officers of that department.
112 In addition, Terry Laidler, a member of the Roads Corporation Board, has that view. The Roads Corporation Board is appointed by the Minister for Transport, pursuant to s 30 of the Transport Act 1983 (Vic). Its function is to advise the Chief Executive of VicRoads. Mr Laidler swore an affidavit, filed in this proceeding, in which he stated that his personal opinion is that the construction of a ring freeway would be beneficial for Melbourne, that the obvious way to complete such a ring freeway would be to construct the Scoresby section first and then construct the balance. Mr Laidler deposed to a discussion with the applicant, in which he discussed how the Scoresby Freeway could be connected to the ring road and canvassed possible routes and methods, including tunnels, by which this could be achieved. He conceded that there are environmental constraints that would affect any route through Bulleen and Heidelberg and that these would need to be responded to appropriately.
113 It is not surprising that there would be persons within the Department of Infrastructure and VicRoads who hold personal opinions in favour of the construction of a freeway link and that at least some of them would take the view that a link from the Eastern Freeway at Bulleen to Greensborough would be an appropriate route for such a link. There is no evidence of the numbers of such persons. Irrespective of the size of such a body of opinion, however, its presence is a factor strengthening the likelihood that a freeway link will be built.
114 For all of these reasons, I am of the view that the construction of the Scoresby Freeway, linked to the Eastern Freeway, with a link between the Eastern Freeway and the Western Ring Road at Greensborough being left to existing roads, creates a strong chance that a freeway link will be built in the future. Whether such a strong chance can be described as an inevitability may involve an argument of semantics. I prefer to describe it as a strong chance, because it cannot be said that it is a certainty. In my view, however, the construction of such a freeway link is highly likely. If it is constructed, a route using the current alignment of Bulleen Road north of the Eastern Freeway, passing close to the Bolin Bolin Billabong, crossing the Yarra near the Banyule Flats and perhaps using a tunnel instead of the former F18 freeway reservation, to link with the Greensborough Highway, is the most likely route. It is therefore necessary to determine whether the existence of this strong chance made what was said in the referral to the Environment Minister in relation to the northern section of the Scoresby Freeway misleading.
115 This question can be characterised as whether a failure to refer to the strong chance of a future freeway link through Bulleen, in the context of what was said about the relationship of the proposal for the northern section of the Scoresby Freeway to other actions or proposals in the region, amounts to misleading. The question whether silence about a particular matter can amount to misleading conduct has been the subject of examination in the context of s 52 of the Trade Practices Act 1974 (Cth). In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 a Full Court took the view that the question whether silence about a matter could amount to misleading conduct depended upon whether the particular facts gave rise to a duty to disclose. See the judgment of Lockhart J at 557. A subsequent Full Court took a different view in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. At 32, Black CJ said:
“Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of ‘mere silence’ or of a duty of disclosure can divert attention from that primary question. Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.”
Gummow J, with whose reasons for judgment Black CJ and Cooper J expressed agreement, referred to numerous authorities at 38 – 41. At 41, his Honour said:
“the question is whether in the light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive.”
116 I see no reason not to apply this analysis in the context of the EPBC Act and the EPBC Regulations. If a duty to disclose were required, it plainly arises in the context of ss 72 and 489 of the EPBC Act and items 4, 5 and 6 in Sch 2 to the EPBC Regulations. In my view, the preferable view as to whether silence can be misleading is that expressed in Demagogue. The omission of any reference to the likelihood of a future freeway link, if the northern section of the Scoresby Freeway should be built, must be viewed in the context of what was said in the referral. As I have said, the context was that of “related transport projects” that included projects not yet fully defined and provision for possible future transport services. The notion of projects was therefore very wide. The referral did inform the Minister about references to an investigation of routes linking the Eastern Freeway with the Metropolitan Ring Road in previous government strategies and reports. It then resorted to the very specific statement that the current government has clearly stated that there is no proposal for such a link and to the absence of various concrete indications of such a proposal. In my view, to provide the complete picture, it was necessary to say that the construction of the northern section of the Scoresby Freeway would itself bring about a strong chance that a freeway link would be constructed in the future. Such a consideration may well have been relevant to the Minister’s deliberations as to whether the northern section of the Scoresby Freeway was itself a controlled action.
117 It may be that it was unnecessary for those preparing the referral to mention these other inchoate “projects” at all. Item 4.01(f) in Sch 2 to the EPBC Regulations requires a referral to state whether the action that is its subject is “related to other actions or proposals in the region”. Having regard to the definition of the word “action” in s 523(1) of the EPBC Act, it is likely that the phrase “actions or proposals” has a fairly narrow meaning. A proposal is probably intended to mean no more than a firm intention to do something that, if done, would be an action. This construction is consistent with advice given to Mr Mottram by officers of Environment Australia in the course of the preparation of the referral. That advice included the proposition that the referral need only relate to actions currently proposed and that any implications of other actions that may occur in the future would either be assessed at the time they were referred to the Environment Minister or undertaken without referral. The absence of a need to mention a wider range of possible future developments is not conclusive. The fact is that VicRoads and the third respondent chose to do so. Having so chosen, they took on the risk that a failure to reveal the full picture would render the document misleading. In my view, it did so.
118 I am therefore of the view that the passage quoted above from the referral to the Environment Minister of the proposal for the northern section of the Scoresby Freeway was misleading in one respect. It failed to inform the Environment Minister of the strong chance that a freeway link would be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough, as a consequence of the building of the northern section of the Scoresby Freeway. It may be that the Environment Minister was capable of discerning the truth, because of the obvious gap and the obvious inadequacy of a ring road that is incomplete. It may be that the Environment Minister was in fact fully informed. Certainly, the applicant took steps to inform him that it was likely that a Bulleen freeway link would be developed and of its environmental significance. These facts, however, cannot have a bearing on the question whether the document itself was misleading. As the applicant pointed out in his submissions to the Court, the Environment Minister has no fact-finding role in the process of examining a referral of a proposed action. The Environment Minister must make a decision on the information provided in the referral. This consideration renders it all the more important that the referral document must contain information that is truthful and complete, so as not to mislead. The purpose of the EPBC Act, to protect the environment, would be subverted if the Environment Minister were to be called upon to make determinations in relation to proposals without full information of the kinds required by the EPBC Act and the EPBC Regulations.
Consequences
119 At the trial of this proceeding, the parties were content that I should first determine the issue whether the referral document was misleading and then permit them to make submissions as to the consequences that should follow. Although no formal order was made pursuant to O 29 r 2(a) of the Federal Court Rules for the determination of a separate question, to save time and expense, I acceded to this proposal. Questions will therefore arise as to what follows from the finding that the document was misleading in one respect. The consideration of these questions will involve a number of issues.
120 In the first place, there is the difficulty caused by the construction of the legislation. The powers given by the Court to grant injunctions do not include a simple power to restrain the provision of misleading information. They are limited to the grant of injunctions restraining threatened or impending conduct that would constitute an offence or other contravention of the EPBC Act or the EPBC Regulations. The Court may restrain persons from engaging in such conduct. If it does so, it may require the person enjoined to do something positive. It may require the doing of an act where a refusal or failure did, does or would constitute an offence or other contravention. It may be that s 475(4) would support the grant of an injunction requiring the correction of misleading information that constituted a complete offence, but the bulk of s 475 deals with prospective offences or contraventions and not with the correction of offences or contraventions already committed. Further, in the present case, the relevant offence or contravention is that found in s 489 of the EPBC Act, which creates offences that have elements other than the simple provision of misleading information. In particular, recklessness or negligence must be proved before an offence can be found to have been committed.
121 It would be unlikely that the State of Victoria could be found guilty of an offence against s 489, because of the doctrine of Crown immunity. Because the second respondent is sued as a Minister of the Crown, and VicRoads is bound to obey directions of the relevant Minister, Crown immunity might well extend to all respondents. The relationship between immunity in respect of an offence and a power to grant injunctions to restrain the commission of an offence, or to require that conduct amounting to an offence be undone, would need to be examined. The trial was conducted without any concentration on the requisite mental elements or how they might be proved, and without reference to the provisions of the Criminal Code, quoted above, in relation to the proof of recklessness or negligence, particularly in relation to a corporation. I note the absence from the Criminal Code of any provision about the proof of the requisite mental element on the part of a body politic, probably as a result of an assumption that Crown immunity will render such a provision unnecessary. The question may arise whether an injunction can be granted in respect of conduct amounting to an offence in the absence of proof of all elements of the offence. It may be that there is a deficiency in the EPBC Act. It does not provide for a straightforward method whereby an interested person can compel the correction of misleading information supplied inadvertently.
122 Other considerations might also be relevant, not the least of them discretionary considerations. At the forefront of these would be the fact that, if a concrete proposal to construct a freeway link between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough were to emerge, there would be little doubt that it would be a controlled action for the purposes of the EPBC Act and would itself require referral to the Environment Minister. Given that the applicant’s aim seems to be to protect the environmental values of the Bolin Bolin Billabong and the Banyule Flats, this aim would be achieved to the extent to which the EPBC Act permits it to be achieved. It would still be possible for the Environment Minister to refuse to allow such a freeway link to proceed because of its environmental impact. Other discretionary considerations might be facts that I have already mentioned. Among them would be the fact that the applicant himself acquainted the Environment Minister with the significance of the northern section of the Scoresby Freeway in relation to the environmental values of the Bolin Bolin Billabong and the Banyule Flats.
123 In the result, it is appropriate to fix a date by which the parties are to file and serve minutes of orders they propose should be made to resolve the proceeding, consequent upon these reasons for judgment. In case the orders are not agreed, a date will be fixed on which the parties are to make submissions as to the orders that should be made. The submissions will include submissions on the question of the costs of the proceeding.
| I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. |
Associate:
Dated: 8 April 2003
| Counsel for the Applicant: | The applicant appeared in person |
| | |
| Counsel for the First, Second and Third Respondents: | Mr M A Dreyfus QC with Dr K L Emerton |
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| Solicitor for the First, Second and Third Respondents: | Phillips Fox |
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| Date of Hearing: | 29, 30 and 31 October 2002 |
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| Date of Judgment: | 8 April 2003 |
