FEDERAL COURT OF AUSTRALIA

Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463

SUMMARY

1                     In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the reasons for judgment delivered today.  The summary is intended to assist an understanding of the decision of the Court.  It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment.  The published reasons for judgment and this summary will be available on the Internet at www.fedcourt.gov.au.

2                     These proceedings concern the extent of the enquiry necessary to be undertaken by the Minister for Environment and Heritage of the impacts which a proposed development or activity may have upon the Great Barrier Reef World Heritage Area. 

3                     The Environment Minister had referred to him a proposal to construct a dam on the Dawson River in Queensland.  Concerns were expressed by the applicants and others that a dam would enable cotton farming, which uses irrigation, to be undertaken.  Chemicals used in that farming might travel downstream and into the Area.

4                     The Environment Minister considered that the relevant statutory provisions required him only to consider the effects of the operation of the dam by the entity proposing it and did not extend to consequences which might follow other persons’ decisions to use chemicals.  The Court has held that the enquiry is a wider one and the Environment Minister is therefore obliged to reconsider the matter.  It has not been part of the Court’s function to determine what impacts will follow upon construction of the dam nor whether they will be both significant in the impact upon the reef and likely to occur.  These matters are to be determined by the Environment Minister.

QUEENSLAND CONSERVATION COUNCIL INC, WORLD WIDE FUND FOR NATURE AUSTRALIA v MINISTER FOR THE ENVIRONMENT AND HERITAGE

Q203 OF 2002

KIEFEL J

BRISBANE

19 DECEMBER  2003

FEDERAL COURT OF AUSTRALIA

Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463

ADMINISTRATIVE LAW - judicial review - whether the Minister complied with administrative procedures - whether the Minister failed to take into account relevant considerations - whether the decision involved an error of law - whether the decision was an improper exercise of the power conferred by the enactment

STATUTORY INTERPRETATION - public policy  - objects of the Act

Statutes

Acts Interpretation Act 1901 (Cth) s 22(1)(a)

Administrative Decisions (Judicial Review) Act 1974 (Cth) ss 5(1)(e), 5(2)(6), 5(1)(f)

Environment Planning and Assessment Act 1979 (NSW)

Environment Protection (Impact of Proposals) Act 1974 (Cth)

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 75, 87, 12, 15A, 67, 68, 18, 18A, 69, 71, 74, 82, 87, 131, 133, 134

National Development Act 1979 (NZ)

United States National Environmental Policy Act of 1969

Cases

Atchison Topeka & Santa Fe Railway Co v Callaway 382 F Supp 610 (1974) (Discussed)

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (Discussed)

Environment Agency v Express Car Co (Abertilley) Ltd [1999] 2 AC 22 (Followed)

Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 4) (1981) 1 NZLR 530 (Discussed)

Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 (Discussed)

Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 (Followed)

Tasmania Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 (Discussed)

Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 (Discussed)

QUEENSLAND CONSERVATION COUNCIL INC, WORLD WIDE FUND FOR NATURE AUSTRALIA v MINISTER FOR THE ENVIRONMENT AND HERITAGE

Q203 OF 2002

KIEFEL J

BRISBANE

19 DECEMBER  2003

THE COURT ORDERS THAT:

1.         Those parts of the decision of the respondent made on or about 16 September 2002 by which, pursuant to s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the respondent concluded that the proposal by Sudaw Development Limited (ACN 078 021 057) to construct and operate the Nathan Dam on the Dawson River in Queensland (application EPBC No 2002/770) was not a controlled action in respect of any potential impact the proposal might have on the world heritage values of the Great Barrier Reef World Heritage Area as a listed World Heritage property and was not a controlled action in respect of any potential impact the proposal might have on listed migratory species, are set aside.

2.         The decision of the respondent dated 4 December 2002 pursuant to s 87 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) that the approach used for assessment of the relevant impacts of the proposal be assessment by way of public environment report is set aside.

3.         That part of the decision set aside by paragraphs 1 and 2 of these orders is remitted to the respondent for further consideration and decision.

4.         The respondent pay the applicants’ costs.

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

REASONS FOR JUDGMENT

1                     Sudaw Developments Limited proposed to construct a dam to be called the Nathan Dam near Taroom on the Dawson River in Central Queensland.  The locality and its connexion with the Great Barrier Reef World Heritage Area was described later in the statement of reasons of the Minister for the Environment and Heritage (‘The Environment Minister’) in terms which are not controversial:

‘12.      The proposed construction of Nathan Dam is to take place near Taroom on the Dawson River.  The Dawson River has a catchment area of 50,830 km.  The Dawson River joins the Mackenzie River to become the Fitzroy River, which has other major tributaries, and which flows east to the coast entering the Great Barrier Reef World Heritage Area (GBRWHA) near Rockhampton, about 500 kilometres by river from the proposed Nathan Dam.’

2                     Sudaw Developments referred the proposal to the Minister on 19 August 2002.  The ‘proposed action’ was described, in summary, in the referral form as being:

‘To construct and operate the Nathan Dam on the Dawson River in Central Queensland.  The dam will have a capacity of 880,000ML.  Once in operation it will make controlled discharges of water for agricultural, industrial, urban and environmental uses.’

The activities proposed to be carried out as part of the proposed action were identified in these terms:

‘l              Construction of a 27m high, roller compacted concrete dam

·                         Provision of road and power access

·                         Establishment of viewing and recreational facilities

·                         Environmental works including the establishment of new vegetation corridors around the ponded area

·                         Operate and maintain the dam and ponded area

·                         On-going regulation of the downstream flow.’

3                     The context for the proposed action was described in these terms:

‘The lower Dawson River Valley is a region with substantial development potential, currently constrained by the lack of increased reliable water supply.  It currently has a grazing, cropping and mining economy and in common with similar regional areas is stagnating or in decline.

Existing demand for water is provided for by a series of weirs with a combined storage capacity of 62,000ML with annual distributions for irrigation, industrial and urban use of around 50,000ML.  This system is at capacity and consequently the region is not able to attract new development.

The agricultural and industrial potential of the region is substantial.  There is 60,000ha of land identified designated as suitable for sustainable irrigation, (Theodore to Duaringa and within 5 km of the river thus avoiding the need for major channels).  Potential exists for cotton ginning, food processing, development of sustainable forests, the expansion of the existing cotton growing industry and diversified cash crops, leading to enhanced employment opportunities and improved quality of life.  Existing resource based activity includes coal mining, coal seam methane extraction, a traversing gas pipeline, high capacity rail infrastructure from the centre of the region to port and major electricity generation.  The expansion and integrated development of these activities in the region is constrained by the lack of one element:  water.

The development of the region would foster the development of new rail infrastructure to become part of an inland regional rail development, supported by minerals and produce transport revenue.  The availability of reliable water supply in the region will have a broader strategic value of allowing “Gladstone” type industry development to move 100 kilometres west, hence reducing the stresses on the Gladstone coastal region and its lack of water.

The project has been developed in close consultation and co-operation with the Queensland Government which has itself undertaken a number of the environmental impact assessments and reports together with a Water Allocation and Management Plan and environmental flow regulation regime, a Framework Environmental Management Plan and has issued Land and Water Management Guidelines for the region.  As a consequence, it is believed that this project does not constitute a controlled action.’

4                     Sudaw’s opinion, that the proposed action could not be seen to have any significant impact on the matters controlled by the Environment Protection and Biodiversity Conservation Act 1999 (Cth)‘(the EPBC Act’), was not shared by everyone.  In particular some identified the use of aerially-applied pesticides, principally endosulfan in connexion with cotton crops, in the proposed irrigation area as a potential impact.  The pesticide is toxic to a range of fauna and is especially toxic to fish.  It was said that it might be exported into the Great Barrier Reef World Heritage Area by altered river flows and pollutant run off.  Different views were stated about whether the use of pesticides could be effectively managed.  The first applicant, in its submission to the Minister, did not accept that endosulfan is presently adequately managed: 

‘The proposal to irrigate 30,000 ha of land along a 5km strip of the Dawson flood plain is probably inherently incompatible with protecting the downstream environment and the GBRWHA. … 

QCC rejects DNR’s [the Department of Natural Resources] claim that endosulfan use is adequately managed by the Queensland Department of Primary Industry and strongly concurs with the proposal by GBRMPA [Great Barrier Reef Marine Park Authority] that there be at least a 5km buffer between the river and cotton crops.  It has not proved possible, even with best practice to prevent contamination of waterways with endosulfan.  Thus, the requirement to protect the values of the GBRWHA directly conflicts with the proposal to support irrigated agriculture within the 5km strip along the Dawson River.’

5                     The second applicant raised similar concerns.

THE STATUTORY SCHEME

6                     The objects of the EPBC Act are stated in s 3(1) to be:

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

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

 (c)       to promote the conservation of biodiversity; and

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

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

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

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

7                     Those objects are to be achieved by various means.  Relevant to this matter s 3(2)(a)-(d) provides for intergovernmental co-operation:

‘(2)      In order to achieve its objects, the Act:

(a)       recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and

(b)       strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements; and

(c)        provides for the intergovernmental accreditation of environmental assessment and approval processes; and

(d)       adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; …’

8                     Part 3 of the EPBC Act contains prohibitions on activities which will have or are likely to have a significant impact on the world heritage values of a declared World Heritage property and provides for penalties and offences in that regard.  The Great Barrier Reef World Heritage Area is a property having world heritage values.  Section 12(1) of Part 3 provides:

‘(1)      A person must not take an action that:

(a)       has or will have a significant impact on the world heritage values of a declared World Heritage property; or

(b)       is likely to have a significant impact on the world heritage values of a declared World Heritage property.’

9                     An ‘action’ is defined in wide terms, by s 523, to include a project, development or undertaking and an activity or series of activities.  Section 12(1) does not apply to an action if an approval for the taking of the action is in operation under Part 9 of the Act:  see s 12(2)(a), and in certain other circumstances.  Section 15A of Part 3 provides (without the notations to it):

‘Offences relating to declared World Heritage properties

(1)       A person is guilty of an offence if:

(a)       the person takes an action; and

(b)       the action results or will result in a significant impact on the world heritage values of a declared World Heritage property.

(2)       A person is guilty of an offence if:

(a)       the person takes an action; and

(b)       the action is likely to have a significant impact on the world heritage values of a declared World Heritage property and the person is reckless as to that fact.

(3)       An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

(4)       Subsections (1) and (2) do not apply to an action if:

(a)       an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)       Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

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

(d)       the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).’

10                  Prohibitions and offences with respect to actions having significant impact upon threatened species and ecological communities are provided for in ss 18 and 18A.

11                  A proposed action is a ‘controlled’ action, if the taking of it without an approval would be prohibited by a provision of Part 3.  Such a provision is referred to as a controlling provision:  see s 67.  Section 68 requires a person proposing to take action to consider its impact: 

‘Referral by person proposing to take action

(1)       A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action.

(2)       A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action.

(3)       In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.

(4)       If the person states that the person thinks the action is a controlled action, the person must identify in the statement each provision that the person thinks is a controlling provision.

(5)       Subsections (1) and (2) do not apply in relation to a person proposing to take an action if the person has been informed by the Minister under section 73 that the proposal has been referred to the Minister.’

12                  Whilst a person has a choice whether to refer a proposed action, in circumstances where they do not think the action is one controlled by the provisions of Part 3, they may be at risk of offending.  In this case Sudaw Developments did refer the action to the Minister although its position was that it did not consider that it would have relevant impacts. 

13                  A proposed action may be brought to the attention of the Environment Minister by other means, by a State or Territory which is aware of a proposal, by a person or by a Commonwealth agency (ss 69 and 71).  The Environment Minister may also request a referral by a person, a State, Territory or agency of a State or Territory which the Environment Minister believes has administrative responsibilities relating to an action, if the Environment Minister believes a person proposes to take an action which may be a controlled action:  s 70.

14                  Information must be sought by the Environment Minister upon receipt of a proposal to take an action.  These provisions may assume some importance in this case.  Section 74(1) provides:

‘Inviting other Commonwealth Ministers to provide information

(1)       As soon as practicable after receiving a referral of a proposal to take an action, the Minister (the Environment Minister ) must:

(a)       inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the proposal; and

(b)       invite each other Minister informed to give the Environment Minister within 10 business days information that relates to the proposed action and is relevant to deciding whether or not the proposed action is a controlled action.’

Sub-section (2) makes similar provision for inviting comments from the appropriate State or Territory Minister on whether the proposed action is a controlled action, if the Environment Minister thinks it relates to matters of national environment significance.  An invitation is also to be provided to the public to provide comments:  sub-s (3).

15                  Section 75, which is the focus of this application, is entitled ‘Does the proposed action need approval?’.  Subsections (1) and (2) of it provide:

‘(1)      The Minister must decide:

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

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

…

(2)       If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:

(a)       the Minister must consider all adverse impacts (if any) the action:

            (i)         has or will have;  or

            (ii)        is likely to have;

            on the matter protected by each provision of Part 3;  and

(b)       must not consider any beneficial impacts the action:

            (i)         has or will have;  or

            (ii)        is likely to have;

            on the matter protected by each provision of Part 3.’

16                  Subsection 1A obliges the Environment Minister to consider public comment. 

17                  If the Minister decides that the action is a controlled action the ‘relevant impacts’ of it are to be assessed by one of the methods of assessment provided for in Part 8 to enable a decision as to whether the action should be approved.  The ‘relevant impacts’ of the action are:

‘the impacts that the action:

(a)       has or will have;  or

(b)       is likely to have;

on the matter protected by each provision of Part 3 that the Minister has decided under that Division is a controlling provision for the action’ (s 82(1)).

18                  The provisions of Part 8 do not apply if the Environment Minister has made a declaration that actions in a class that include the relevant action need not be assessed:  s 84.  No declaration was made in the present case.

19                  The methods of assessment which the Minister may choose from are provided for in s 87(1):

‘(a)      An accredited assessment process;

 (b)      An assessment on preliminary documentation;

 (c)       A public environment report;

 (d)      An environmental impact statement;

 (e)       A public enquiry.’

20                  It may be observed that the assessments may be very broad-ranging.  In this case the Environment Minister chose assessment by way of a public environment report.  It is not difficult to infer that the choice of the mode of assessment will be influenced by the view the Minister takes of the likely impacts of the proposal.  The Minister determined that any significant impact that the proposed action was likely to have was not upon the Great Barrier Reef World Use Heritage Area generally.

21                  The Environment Minister is again obliged to invite comments from other Ministers who have administrative responsibilities relating to the action before reaching a decision to approve the taking of the action:  s 131.  Section 133 of Part 9 provides for the grant of approval.  The Environment Minister may attach conditions to such an approval:  s 134.

THE environment MINISTER’S DECISION

22                  On 16 September 2002 the Environment Minister determined that the proposed action was a ‘controlled action’ under s 75 of the EPBC Act and that the controlling provisions were s 18 and s 18A.  The Environment Minister found that the construction and operation of the dam was likely to have a significant impact on three listed threatened species and on certain listed threatened ecological communities.  No significant impact was considered to be likely to heritage values in the Great Barrier Reef World Heritage Area.  The controlling provisions of s 15A were therefore not nominated by the Minister.  The Environment Minister provided a statement of reasons, on 20 November 2002, at the request of the applicant.  Relevant to this application is that part of the Environment Minister’s decision concerning the actions of persons other than the proponent Sudaw.  The Environment Minister’s approach did not take into account the potential impacts of farms which might be able to irrigate using water supplied by the dam.  That part which relates to the impacts on the Great Barrier Reef World Heritage Area property was in these terms:

‘11.1    I found that the Great Barrier Reef is a listed World Heritage Property and the World Heritage values for the property include the following:

·                         seagrass beds (over 5000km²) comprising 15 species, 2 endemic;

·                         mangroves (over 2070km²) including 37 species;

·                         evidence of morphological and genetic changes in mangrove and seagrass flora across regional scales;

·                         feeding and/or breeding grounds for international migratory seabirds, cetaceans and sea turtles;

·                         reef morphologies reflecting historical and on-going geomorphic and oceanographic processes;

·                         migrating whales, dolphins, dugong, whale sharks, sea turtles, seabirds and concentrations of large fish; and

·                         on going processes of accretion and erosion of coral reefs, sand banks and coral cays, erosion and deposition processes along the coastline, river deltas and estuaries and continental islands.

12.       …

13.       I considered the effect of the proposed action on the water flow from the Fitzroy River into the GBRWHA. I found that the average annual discharge from the Dawson River is 1,127,000ML and Nathan Dam will hold about 880,000ML.  Approximately 190,000ML of water stored by the Dam is proposed for annual consumption, primarily for irrigation of up to 30,000 hectares.  I considered advice provided by the Great Barrier Reef Marine Park Authority (GBRMPA) and the Executive Summary of the Literature Review and Scoping Study of the Potential Downstream Impacts of the Proposed Nathan Dam on the Dawson River, Fitzroy River and Offshore Environments that was attached to GBRMPA’s advice and reflected in my Department’s brief of 16 September 2002.

14.       I found that the natural river flows of the Dawson River are extremely variable and that the river system downstream from the proposed Dam is highly regulated.  I found that the existing Fitzroy River catchment is highly modified.  In particular, there are a number of weirs and one river barrage in the 500 km between the proposed Nathan Dam and the river mouth where the Fitzroy River flows into the GBRWHA.  I found that it was not possible to identify any likely significant impact on the GBRWHA that would be caused by modification of the water flow in the Dawson River as a result of the construction and operation of the dam.

15.       Some public submissions expressed concern about the cumulative impacts of the proposed action resulting from downstream irrigation of agricultural land.  The submissions suggested that irrigation of land adjacent to river-beds, has the potential to increase nutrient concentrations and other agricultural pollutants downstream of the dam.  However, I found that potential impacts of the irrigation of land by persons other than the proponents, using water from the dam, are not impacts of the referred action, which is the construction and operation of the dam.

16.       On the basis of my findings referred to in paragraphs 12 to 15, I found that the proposed action is unlikely to have a significant impact on the World Heritage values of the declared World Heritage property.

(I have added the emphasis)

The application

23                  The applicants seek review of the Environment Minister’s decision.  Their standing to do so is not in dispute. Essentially their case is that the Minister was obliged to have regard not just to the immediate impacts of the dam, but all of the consequences which could be predicted to follow from the dam’s operation.  One such consequence, recognised by the information provided to the Environment Minister on referral, was cotton farming conducted with irrigation.  The use of certain chemicals in connexion with such farming is known.

24                  The Environment Minister accepts that if the EPBC Act required him to consider more than the impacts from the construction and operation of the dam by Sudaw then both the decision under s 75 and that under s 87, with respect to the method of assessment, are liable to be set aside.  The application identifies as relevant in that regard the ground in ss 5(1)(e) and 5(2)(b), of the Administrative Decisions (Judicial Review) Act 1974 (Cth) namely a failure to take into account a relevant consideration in the exercise of a power.  If the applicants’ contentions are correct the decision might also be said to have involved an error of law (s 5(1)(f)) because it was based upon an erroneous view of the Act’s requirements.

25                  The Environment Minister submits that the ordinary and natural meaning of the phrase ‘all adverse impacts … the action … is likely to have’ in s 75(2) is limited to the impacts that are likely to arise from the construction of the dam and from its operation, including the modification of water flows in the Dawson River.  It does not comprehend the impacts of activities undertaken by other persons as a result of their own decisions, such as those to use pesticides on crops grown on land irrigated with water released from the dam.  The phrase does not comprehend environmental consequences that arise from decisions to engage in activities that may have adverse impacts upon the environment, when those activities are neither proposed by the development under consideration and its operation nor form an inherent or inextricable part of them.

26                  The New Zealand Court of Appeal has cautioned against site-specific limitations being applied to environmental impacts.  In Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 4) (1981) 1 NZLR 530 at 534, the Court said:

‘Obviously there must be a real and sufficient link between the less direct effects likely to flow from projected works if they are to be regarded as relevant.  But it could not be Parliament’s intention that in every context a discussion limited to site-specific environmental implications will satisfy an applicant’s responsibility to provide a realistic impact report.  If that were the case the ‘green light’ could well be given to some major industrial project which involved insignificant environment implications considered by reference only to the site itself, but manifold and adverse effects when assessed against the further construction of another undertaking which alone could give it industrial meaning and with which it would clearly be inextricably involved.’

27                  The Environment Minister submits that this decision does not hold that a proponent of an action is responsible for someone else’s action.  It was put that the environmental impact report, which was there required by the National Development Act 1979 (NZ), did not deal with the construction of an electricity generator which it was alleged was necessary to the project.  The reference to non-site-specific implications being necessary to give a realistic impact report was made in that context.  The Environment Minister adopts for the purpose of his argument a construction which would require that the activity be ‘inextricably involved’ with the proposed activity. 

28                  Some reliance was also placed by the applicants upon the United States National Environmental Policy Act of 1969 (42 United States Code 4332). It expressly provides that agencies of the Federal Government are required to consider the impact of an overall programme and not just isolated aspects of facilities because it would frustrate the vitality of the Act:  see Atchison Topeka & Santa Fe Railway Co v Callaway 382 F Supp 610 (1974) at 620-1.  It would not therefore appear to provide much guidance to what the EPBC legislation requires.

29                  In Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 Cripps J considered a provision of the Environment Planning and Assessment Act 1979 (NSW) which required the decision-maker to consider an environmental impact statement prior to final decision or approval with respect to an undertaking where it involved ‘an activity that is likely to significantly affect the environment’.  The activity in question was the logging of timber.  His Honour considered it appropriate to ‘go beyond the area in which the activity itself is being proposed and look to the whole cumulative and continuing effect of the activity on the environment …’ (at 47). 

30                  Kivi v NSW Forestry Commission was referred to with approval by Sackville J in Tasmania Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541.  His Honour was there dealing with the predecessor to the EPBC Act, the Environment Protection (Impact of Proposals) Act 1974 (Cth) (the EPIP Act).  The object of that Act was stated to be ‘to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and take into account …’ (s 5(1)).  Davies J in the later case of Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35, considered that the Act and the Administrative Procedures made under it required ‘that attention be given to all those activities which the grant of the licence would be likely to generate and the effect which those actions would have upon the environment’. 

31                  These cases strongly suggest that the question whether there are likely to be significant effects upon the environment requires a wide consideration of the consequences which will follow if a proposed activity proceeds.  The question for the Environment  Minister under the EPBC Act is to the same effect.  In considering whether an action is ‘controlled’ by a provision of Part 3 the EnvironmentMinister is to determine whether the proposed action is likely to have a ‘significant impact’ on an area or species.  One would think that when the EPBC Act was prepared it would have been known that an enquiry as to any likely significant effects of an action had been regarded by the courts as one requiring a full examination. 

32                  The Environment Minister submits that the statutory context of the EPIP Act was different and was likely to have had a wider operation.  The earlier cases are to be read in this light.  The EPIP Act was concerned with proposals by, or on behalf of, the Australian government and governmental authorities (s 5(1)) in granting approvals and the like.  The grant of an approval or licence, such as a licence to export timber could trigger an environmental impact assessment into logging.  The EPBC Act is concerned with persons undertaking particular activities.  (The references to ‘persons’ in the EPBC Act denote a body corporate or politic as well as a natural person:  s 22(1)(a) of the Acts Interpretation Act 1901 (Cth)).

33                  A point of difference between the two Tasmanian Conservation Trust cases was in the identification of the ‘proposed action’ for the purposes of the Act.  Davies J considered that the ‘proposed action’ was that of the Commonwealth.  Stephen J had observed in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 545 that the grant of executive consent is incapable of direct environmental detriment but it may be productive of that indirectly, by permitting some development.  It would follow that the EPIP Act was intended to seek out for consideration the likely consequences of the relevant governmental approval or other decision.

34                  It may be accepted that the EPBC Act focus identifies a different source of the action which might impact on the environment.  As the Explanatory Memorandum to that Act points out (at p 9), it was framed in such a way as to overcome Commonwealth legislation dealing with the environment being triggered by approvals made by the government or governmental authorities.  In my view, so far as concerns the question of the extent of the enquiry under s 75, little of consequence follows from the shift of focus under the EPBC Act to a person’s intended activity.  The objects of the two statutes remain the same.  In legislation of this kind the requirements of a provision such as s 75 fall to be determined by reference to the purposes and policy of the Act:  Environment Agency v Express Car Co (Abertilley) Ltd [1999] 2 AC 22 at 31E and  1H, and there is nothing to suggest that the considerations relevant to the enquiry whether there are effects which are significant and likely to occur will be different.

35                  The true focus of the EPBC Act in any event is on the area or species in question.  It is concerned with the prospect of damage or some other adverse impact upon them.  The Act is not so concerned with persons undertaking particular activities as it is in the consequences of them.  The assessments made by the Environment Minister at this point are not as to the extent to which a proponent should be held responsible or whether their proposed action held up.  Section 75 directs attention to areas and species and asks the question - what are likely to be the impacts upon them if the proposal proceeds?

36                  The Environment Minister submits that a wide approach, one which takes account of the actions of others, would impermissibly extend the liability of persons undertaking activities for offences under the EPBC Act.  This contention did not form part of the Environment Minister’s reasons but is advanced now in support of the construction of the subsection which he adopted.  I understand it to be submitted that if the significant impacts, which form the ultimate enquiry under s 75, extend to those caused by others the same meaning must be attributed to the prohibition provisions.  It would follow, in the Environment Minister’s submission, that a person may be guilty of an offence for the decisions and actions of others and this could not have been intended. 

37                  The Environment Minister’s submission assumes that a person has undertaken an action without referring the matter to the Minister, which is the very process under consideration.  I accept that a person would be at risk of contravening the Act if they determined not to refer an action, save in the clearest possible cases.  The legislation no doubt proceeds upon the assumption that persons will properly inform themselves as to the impacts their actions may have upon these aspects of the environment.  Importantly, in my view, submissions for the Minister overlook the nature of the process engaged in when there is a referral to the Minister, as there was in the present case.  It is one which will provide persons with protection from liability.  If the Environment Minister considers that a proposed action will not have a significant impact upon an area or upon a species one might reasonably conclude that a proponent is safe from prosecution if they proceed.  If the Environment Minister determines that it is a ‘controlled action’ assessments will be undertaken which will permit a decision as to whether to approve the action under Part 9.  If it is not it will not proceed.  If it is approved it is effectively exempt from the prohibitions.  Rather than support a view of the enquiry under s 75 as narrow, this suggests a wider enquiry as necessary.

38                  There are other indications in the EPBC Act which confirm that the enquiry undertaken by the Environment Minister is not a narrow one.  The Environment Minister is to be provided with information and comment from Commonwealth and State Ministers having responsibilities which relate to the proposal.  By this means information may be obtained about every effect a proposal might have.  Consideration could be given to existing controls or regulations.  The assessment to be undertaken of a proposed action may be very wide ranging.  None of these indicate a focus narrowed to a direct and not an cumulative effect.  The enquiry might extend properly to the ‘whole, cumulated and continuing effect’ of the activity of which Cripps J spoke in Kivi v New South Wales Forestry Commission. 

39                  The words used in s 75 and the process to be undertaken also support a wider enquiry than the Environment Minister undertook.  In arriving at the ultimate conclusion, that an action is or is not a ‘controlled action’, one which is likely to have a significant impact on an area or species, the Environment Minister is first to consider ‘all adverse impacts’ the action is likely to have. This suggests that the widest possible consideration is to be given in the first place, limited only by considerations of the likelihood of it happening.  By that means the Environment Minister will exclude from further consideration those possible impacts which lie in the realms of speculation.  The Environment Minister would then determine whether they were significant.  ‘Likely’ and ‘significant’ are sufficiently clear in their meaning.  In any event there is no issue about their meaning in the present case.

40                  That the Environment Minister’s enquiry under s 75 is a wide one, is I consider, consistent with the high public policy apparent in the objects of the Act.  No narrow approach should be taken to the interpretation of legislation having objects of this kind:  Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 515, 528, 537.

41                  In my view the Environment Minister did not undertake the full enquiry required by s 75.  The ground for review is made out.  There will be declarations in terms of the orders sought in pars 1, 2 and 3 of the application.

Associate:

Dated:              19 December 2003