FEDERAL COURT OF AUSTRALIA

Mees v Kemp [2004] FCA 366

ADMINISTRATIVE LAW – application for review of Minister’s decision that proposal by Victorian Government to construct, operate and maintain northern section of Mitcham-Frankston Freeway not a “controlled action” – application for review of purported decision of Minister not to reconsider first decision – application for extension of time under s 11(1)(c) of Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Minister bound to take into account that, as a consequence of construction of northern section, “strong chance” Eastern Freeway-Greensborough link would be built and result in harm to environment – whether Minister made purported decision – whether “substantial new information” before Minister – whether Minister’s reasons for substantive decision satisfied requirements of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Court should extend time

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11(1)(c) and 13

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 67, 75 and 78

Mees v Roads Corporation [2003] FCA 306 discussed

Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205 at 208-211 referred to

Swain v Brinegar 542 F.2d 364 (1976) at 368-369 referred to

Indian Lookout Alliance v Volpe 345 F. Supp. 1167 (1972) at 1170 referred to

Indian Lookout Alliance v Volpe 484 F.2d 11 (1973) referred to

Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 referred to

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

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

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 referred to

Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 referred to

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 referred to

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 followed

Soldatow v Australia Council (1991) 28 FCR 1 at 2 referred to

Brackenreg v Comcare Australia (1995) 56 FCR 335 referred to

Comcare Australia v Mathieson [2004] FCA 212 referred to

Preston v Secretary, Department of Family and Community Services [2004] FCA 300 referred to

Marsden v The Queen [2002] FCAFC 229 at [16] referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10] referred to

Parker v The Queen [2002] FCAFC 133 at [6]–[7] referred to

Goldie v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 383 at 393-4 referred to

Comcare v A’Hearn (1993) 45 FCR 441 followed

Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 considered

Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at [16] considered

PAUL ANDREW MEES v DAVID KEMP (in his capacity as Minister for the Environment and Heritage) and SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY

V456 of 2003

WEINBERG J

31 MARCH 2004

MELBOURNE

THE COURT ORDERS THAT:

1.             The application for an order of review of the decision, made by the first respondent under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 21 March 2002, be dismissed. 

2.             The objection to competency, filed by the first respondent on 14 July 2003, be upheld.

3.             The applicant and the first respondent each file and serve written contentions regarding the question of costs, on or before 23 April 2004.

4.             As between the applicant and the second respondent, there be no order as to costs.

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

REASONS FOR JUDGMENT

1                     By an application filed on 10 June 2003, the applicant, Dr Paul Mees, seeks review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of two decisions of the first respondent, the Minister for the Environment and Heritage (“the Minister”).  Those decisions relate to the construction by the Victorian Government of a freeway that will run from the Eastern Freeway at Mitcham to Frankston.  The freeway has generated enormous controversy because of the decision by the Government that it be tolled.  The correct title of the freeway is “the Mitcham-Frankston Project”.  However, it is more commonly described as “the Mitcham-Frankston Freeway”, and sometimes as “the Scoresby Freeway”.  In reality, the Mitcham-Frankston Project consists of the former Scoresby Freeway, and what is known as the Eastern Freeway Project.  For convenience, in these reasons for judgment, I will refer to the project as the “Mitcham Frankston Freeway”.

2                     The Minister made the first decision (“the substantive decision”) on 21 March 2002 under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”).  The Minister decided that a proposal to construct, operate and maintain the northern section of the Mitcham-Frankston Freeway, from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood to the interchange with the Monash Freeway in Dandenong North, was not “a controlled action”.

3                     According to the applicant, the Minister made the second decision on 7 May 2003, pursuant to s 78 of the EPBC Act.  The applicant characterised that decision as “a decision not to reconsider the substantive decision”. 

4                     The applicant also seeks review of the conduct of the Minister in relation to both decisions. 

5                     The applicant seeks an extension under s 11(1)(c) of the ADJR Act of the time for lodging the application for an order of review in respect of the substantive decision. 

6                     The sole ground upon which the applicant claims that each decision should be set aside is as follows:

“The Minister failed to take into account a relevant consideration, namely, the “strong chance” that a freeway link will be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough (an Eastern Freeway-Greensborough link), as a consequence of the building of the action proposed in the northern section referral.”

7                     In substance, the applicant contends that once the northern section of the Mitcham-Frankston Freeway has been constructed, it is almost inevitable that an Eastern Freeway-Greensborough link will be built to complete the ring road around Melbourne.  He contends that this will have dire consequences for the environment and, in particular, that it will endanger various protected species located close by that link.

8                     The applicant claims that the construction of the Eastern Freeway-Greensborough link would have “secondary effects” upon the surrounding environment, and that the Minister was required to these effects into account when considering whether to approve the northern section of the Mitcham-Frankston Freeway.  He contends that s 75(1) of the EPBC Act requires the Minister to consider such “secondary effects”, limited only by “common sense standards of remoteness and relevance”. 

9                     The Minister accepts that the applicant is a person aggrieved for the purposes of ss 5(1) and 6(1) of the ADJR Act.  However, he rejects the applicant’s contention that, when considering whether the proposal to construct the northern section of the Mitcham-Frankston Freeway involved “controlled action” under s 75(1), he was required to take into account the theoretical possibility that a Eastern Freeway-Greensborough link might be built.

background

10                  Each decision relates to the approval sought by the Victorian Government under the EPBC Act to enable the “Mitcham-Frankston Freeway” (a freeway from the Eastern Freeway at Mitcham to Frankston), to be constructed. 

11                  Most of the facts surrounding this matter are not in dispute.  They are set out in the affidavits of the applicant sworn 30 June 2003, and Mr Gerard Early sworn 4 September 2003. 

12                  In substance, what occurred was as follows.  On 19 February 2002, the Victorian Government submitted to the Minister two referrals under s 68 of the EPBC Act.  The first referral covered the segment of the Mitcham-Frankston Freeway from Ringwood to the Monash Freeway interchange in Dandenong North (“the northern referral”).  The second referral covered the segment of the freeway from the Monash Freeway interchange in Dandenong North to the Frankston Freeway at Seaford (“the southern referral”). 

13                  Attached to the referrals was a large body of supplementary information.  It included an environmental effects statement that had been conducted in relation to the project in June 1998 under the Environment Effects Act 1978 (Vic), as required under Victorian planning law.  In late February 2002, as part of the consultation process under the EPBC Act, the applicant made a submission in which he set out his belief that the Mitcham-Frankston Freeway comprised part of a larger “ring road”, and that it committed the Victorian Government to constructing a new freeway linking the Mitcham-Frankston Freeway with the Metropolitan ring road (“the Eastern Freeway-Greensborough link”).  The applicant attached to his submission an affidavit sworn by Dr Michael Buxton, setting out the likely effects that such a new freeway link would have on threatened and migratory species in the nearby Bolin Bolin Billabong and the Banyule Flats. 

14                  On 21 March 2002, the Minister made the substantive decision.  He decided that the construction of that part of the Mitcham-Frankston Freeway dealt with in the northern referral was not “a controlled action” within the meaning of s 67 of the EPBC Act.  A “controlled action” is an action that would be prohibited by a controlling provision if taken without approval under Pt 9.  In other words, once a proposed action is found to be a “controlled action”, it is prohibited unless the various procedures for approval contained in the Act are followed.  At the same time, he decided that the construction of that part of the freeway dealt with in the southern referral was “a controlled action”. 

15                  Prior to the making of the substantive decision, by application made on 26 October 2001, the applicant sought an injunction, pursuant to s 475 of the EPBC Act, restraining the Roads Corporation of Victoria, and the Victorian Minister for Transport, from commencing the construction of the Mitcham-Frankston Freeway pending the submission of amended referrals, and further consideration of the project by the Minister.  In that proceeding, the applicant alleged that the referrals contained misleading information in that they failed to disclose that the Victorian Government intended to construct what he described as “the complete Ring Road”, which included “the new freeway link”, and that the construction of that new link would be an inevitable consequence of the construction of the Mitcham-Frankston Freeway. 

16                  Gray J heard that application.  His Honour concluded that the applicant had failed to establish that there was a secret plan, or intention, to build a new freeway link between the Eastern Freeway and the Metropolitan Ring Road:  Mees v Roads Corporation [2003] FCA 306.  He also found that the action that was the subject of the northern referral would, by itself, have no effect on environmental values in the Bulleen and Banyule Flats areas.  However, he concluded that the referral had been misleading in one respect.  According to his Honour at [114]:

“… 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.”  (emphasis added)

17                  It was in response to what his Honour said in this passage that the applicant wrote to the Minister requesting him to exercise his power under s 78 of the EPBC Act to revoke the earlier decision made under s 75(1).  By letter dated 7 May 2003, the Minister responded to the applicant’s request by stating that the Court findings, and the applicant’s submissions in relation to those findings, did not amount to “substantial new information” within the meaning of that expression in s 78(1)(a).  Accordingly, the Minister stated, the findings did not provide a basis for reconsideration of the substantive decision.  It was that letter that gave rise to what the applicant described as the second decision. 

18                  Finally, it should be noted that evidence was led during the course of the proceeding before me that, since the substantive decision was made, the Victorian Government had taken significant steps in the development of the Mitcham-Frankston Freeway proposal.  The extent of the work that had been done was outlined in an affidavit sworn by Mr Peter Sammut on 9 September 2003.  According to Mr Sammut, some $53 million had been spent, and it was submitted that there would be enormous prejudice to the second respondent if the applicant were to succeed in this application. 

the legislation

19                  Section 3 of the EPBC Act sets out the objects of the Act in the following terms:

“(1) The objects of this Act are:

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

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

(c)        to promote the conservation of biodiversity; and

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

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

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

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

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

20                  Section 3(2)(d) provides that, in order to achieve its objects, the Act:

“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.”

21                  Division 1 of Pt 3 prohibits “actions” that have, will have, or are likely to have a significant impact on a matter of national environmental significance.  Relevantly, s 18 provides that a person must not take an action that may have such an impact on “listed threatened species”.  It provides for civil penalties of up to 5,000 penalty units for an individual, and 50,000 penalty units for a body corporate.  Section 20, which deals with “listed migratory species”, is to the same effect. 

22                  Section 525 defines “an action” as including a project, a development, an undertaking, an activity, or series of activities, and an alteration of any of these things.  However, decisions by Commonwealth, State or Territory governments, or government bodies, to grant a governmental authorisation for another person to take “an action” are not themselves “actions”. 

23                  The prohibitions, penalties and offences contained in Pt 3 do not apply to an action if:

·               the Minister has approved the action under Pt 9;

·               Pt 4 permits the action to be taken without an approval under Pt 9; or

·               the Minister has decided under Pt 7 that the relevant section of Pt 3 is not a controlling provision for the action. 

24                  As noted earlier, pursuant to s 67, a controlling provision is a provision of Pt 3 that would otherwise prohibit the taking of the action.  Under s 68, a person proposing to take an action may refer the proposal to the Minister for a decision as to whether or not the action is a “controlled action”. 

25                  A referral of a proposed action brings s 75 into operation.  That section provides as follows:

“75   Does the proposed action need approval?

                Is the action a controlled action?

(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.

(1AA)       To avoid doubt, the Minister is not permitted to make a decision under subsection (1) in relation to an action that was the subject of a referral that was not accepted under subsection 74A(1).

                Minister must consider public comment

(1A)         In making a decision under subsection (1) about the action, the Minister must consider the comments (if any) received:

(a)        in response to the invitation (if any) under subsection 74(3) for anyone to give the Minister comments on whether the action is a controlled action; and

(b)        within the period specified in the invitation.

                Considerations in decision

(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.

                Designating a proponent of the action

(3)            If the Minister decides that the action is a controlled action, the Minister must designate a person as proponent of the action.

                Consent to designation

(4)            The Minister may designate a person who does not propose to take the action only if:

                (a)        the person agrees to being designated; and

                (b)        the person proposing to take the action agrees to the designation.

                Timing of decision and designation

(5)            The Minister must make the decisions and designation:

                (a)        within 20 business days of the referral; or

                (b)        if the person proposing to take the action referred the proposal and stated in the referral that the person thought the action was a controlled action—within 10 business days of the referral.

Note:   Section 156 sets out rules about time limits.

                Time does not run while further information being sought

(6)            If the Minister has requested more information under section 76 for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:

                (a)        on or after the day the Minister requested the information; and

                (b)        on or before the day on which the Minister receives the last of the information requested.

                Running of time may be suspended by agreement

(7)            The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.”

26                  The Minister must invite comments, including public comment on whether the proposed action is a controlled action, as soon as practicable after receiving a referral of a proposal to take an action.  If the Minister decides that the referred action is a controlled action, Pt 8 requires an assessment to be made of the impact that the action has, or will have, or is likely to have on the relevant matter of national environmental significance.

27                  Section 78(1)(a) provides a limited power to reconsider an earlier decision.  It is in the following terms:

“(1)         The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:

(a)        the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:

(i)      has or will have; or

(ii)     is likely to have;

on a matter protected by a provision of Part 3; …”

28                  There is also a helpful explanation by Kiefel J of the statutory scheme under the EPBC Act in Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205 at 208-211.

the substantive decision

29                  As noted earlier, the Minister made the substantive decision under s 75 on 21 March 2002.  That decision was in the following terms:

“COMMONWEALTH OF AUSTRALIA

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999

DECISION THAT ACTION IN NOT A CONTROLLED ACTION

Pursuant to section 75 of the Environment Protection and Biodiversity Conservation Act 1999, I, DAVID ALASTAIR KEMP, Minister for the Environment and Heritage, decide that the proposed action, set out in the Schedule, is not a controlled action.

SCHEDULE

The proposed action by the Victorian Government to construct, operate and maintain the Scoresby Freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood (City of Maroondah) to the interchange with the Monash Freeway in Dandenong North (City of Greater Dandenong), and as described in the referral received under the Act on 21 February 2002 (EPBC 2002/580).

Dated this 21^st day of March 2002

(David Kemp)

MINISTER FOR THE ENVIRONMENT AND HERITAGE”

30                  In making that decision, the Minister acted upon a minute from Mr Early, also dated 21 March 2002.  In his affidavit, Mr Early deposed as follows:

“6.       On 21 March 2002, the Division prepared a minute to the Minister in relation to the Minister’s decision on whether the proposed action identified in the northern section referral was a controlled action (the northern section referral minute).  I signed the northern section referral minute and caused it to be provided to the Minister.  The northern section referral minute contained the following paragraphs relevant to the grounds of Dr Mees’ application in the current proceeding:

            “Many of the public submissions also argued that the Scoresby Freeway project would facilitate the future construction of a link between Greensborough (the present terminus of the Northern Ring Road) and the Eastern Freeway via Heidelberg, to complete the Melbourne Ring Road … and that this would adversely affect the important habitat areas.

            When deciding, under section 75 of the EPBC Act, whether a referred action is a controlled action, you are required to consider all adverse impacts that the referred action has, will have, or is likely to have on the matter protected by each provision of Part 3.  In this context, it is not open to you to take into account the potential impacts of actions that might possibly be taken at some future time, and might in some way be related to, or facilitated by, the referred action – such as, in this case the hypothetical Greensborough-Eastern Freeway link.  If the Victorian Government were at some future point to propose construction of such a link, that proposal would need to be separately referred and considered under the EPBC Act.”

31                  On 16 April 2002, the applicant wrote to the Minister on the letterhead of the Public Transport Users Association requesting reasons for his decision pursuant.  The request was made pursuant to s 13 of the ADJR Act.  The applicant said, inter alia:

“I rely for my entitlement to make the request on s 487(2) of the EPBC Act, and refer you to the Affidavit material enclosed with my earlier letter for material on this question.”

32                  On 29 May 2002, the Minister wrote to the applicant attaching a statement of reasons for the substantive decision.  The Minister’s letter was in the following terms:

“Dear Dr Mees

Thank you for your letter of 16 April 2002, requesting reasons for the decisions that the proposed action to construct and operate the Scoresby Freeway from the interchange with the Eastern Freeway and Ringwood Bypass to the interchange with the Monash Freeway, (EPBC 2002/580) is not a controlled action, and the proposed action to construct and operate the Scoresby Freeway from the interchange with the Monash Freeway to the Frankston Freeway, (EPBC 2002/581) is a controlled action under the Environment Protection and Biodiversity Conservation Act 1999.

A number of the public comments received in relation to the referrals of these actions submitted that the construction, operation and maintenance of the entire proposed Scoresby Freeway should be treated as a single action for the purposes of the Act.  However, the Eastern Freeway to Monash Freeway segment and the Monash Freeway to Frankston Freeway segment of the Scoresby Freeway were referred to me under the Act as separate proposed actions.  I was not satisfied that either referral failed to identify a proposed action for the purposes of the Act.

I have attached the reasons for the decisions in accordance with section 13 of the Administrative Decisions (Judicial Review) Act 1977.  I apologise for the delay in responding to your request. 

Yours sincerely

DAVID KEMP”

33                  The statement of reasons began by summarising ss 68, 74 and 75 of EPBC Act.  It then set out the background to the proposed action in the following terms:

“4.      The proposed action was referred by Mr Peter Sammut and Mr Clive Mottram on behalf of the Victorian Government and received by the Department of the Environment and Heritage (the Department) on 21 February 2002.  The referral indicated that, in the view of the Victorian Government, the action is not a controlled action.

5.                 The Victorian Government proposes to construct, operate and maintain a 15 km freeway, and bicycle/pedestrian pathways adjacent to or within the freeway reserve.  The freeway will generally comprise six lanes, but parts may have one or two auxiliary lanes.  The proposed freeway will run from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood (City of Maroondah) to the interchange with the Monash Freeway in Dandenong North (City of Greater Dandenong).

6.         In accordance with subsection 74(1) of the EPBC Act, the Minister for Transport and Regional Services was informed of the referral on 21 February 2002, and invited to provide information relevant to deciding whether or not the action is a controlled action.  No comments were received.

7.         In accordance with subsection 74(3) of the EPBC Act, the referral, together with an invitation for public comment, was published on the Department’s web site on 21 February 2002.  Comments were received from the people and organisations listed at Attachment A.

8.         The Victorian Minister for Planning was also informed of the referral on 21 February 2002, and invited to provide comment on whether the action is a controlled action.  No comments were received.

9.         On 21 March 2002 I decided, in accordance with section 75 of the EPBC Act, that the action is not a controlled action.”

34                  The statement of reasons set out the evidence or other material on which the Minister’s decision had been based.  It then set out his findings on material questions of fact.  These included his finding that various threatened species were known to exist in the vicinity of the proposed action, and also his findings relating to migratory species.  The Minister explained why he had concluded that the proposed action was unlikely to have a significant impact on any of these species.  He explained that in the light of that finding, he had concluded that the proposed action was not a controlled action.  He said that in making the decision he had taken comments received from the public into account, and had also taken into account what he described as “the precautionary principle”.  I interpolate to note that this principle is defined in s 528 as having the meaning given by s 391(2), namely that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

35                  In schedule to the statement of reasons, the Minister referred specifically to the applicant’s submission.  However, the Minister made no reference whatever in those reasons to the possibility of an Eastern Freeway-Greensborough link being built.  Notwithstanding that fact, the applicant took no steps, at that stage, to challenge the substantive decision.  His explanation for his inaction is contained in an affidavit sworn 30 June 2003, in which he said at par 6:

“The respondent’s reasons made no reference to the submission I made about the Bulleen-Heidelberg freeway.  I believed at the time that this was because the respondent had no capacity under the EPBC Act to investigate the truth of my allegations about the issue.”  (emphasis added)

The second decision

36                  On 2 May 2003, the applicant again wrote to the Minister.  He submitted that there was “substantial new information” within the meaning of that expression in s 78(1)(a) regarding the impact of the proposed action.  He contended that the Minister’s power to reconsider the substantive decision was thereby enlivened. 

37                  The “substantial new information” upon which the applicant relied consisted of the finding made by Gray J in Mees v Roads Corporation that the northern section referral, by not disclosing the high likelihood that the proposed action would lead to the construction of an Eastern Freeway-Greensborough link, was misleading. 

38                  On 5 May 2003, Mr Early provided the Minister with a minute prepared by the Department in response to the applicant’s submission that the substantive decision should be reconsidered.  The minute contained the following paragraphs:

“Dr Mees has provided you with a copy of the Court judgment and submitted that the Court findings provide grounds for you to reconsider your decision under paragraph 78(1)(a) of the EPBC Act that the northern section of the Scoresby Freeway, from the Eastern Freeway to the Monash Freeway, is not a controlled action.

Paragraph 78(1)(a) provides that a decision made under s 75 may be reconsidered and a new decision substituted where you are satisfied that reconsideration is warranted by the availability of substantial new information about the impacts of the action on a matter protected by Part 3 of the EPBC Act.

As outlined above, the two traffic assessment reports on which the Court based the finding that the referral was misleading in one respect, had already been considered by you, to the extent that they were relevant, in the context of making the decision that the northern section was not a controlled action.  As such the Court findings do not provide a basis for reconsideration, as they are not substantial new information.  Further, the environmental impacts of a future freeway are not relevant impacts of the northern section of the Scoresby Freeway as referred.”

39                  On 7 May 2003, the Minister wrote to the applicant in the following terms:

“Dear Dr Mees

Thank you for your letter of 2 May 2003 about the recent Federal Court proceedings regarding the Scoresby Freeway.

I have carefully considered the Court findings and orders, and your submission that the Court findings provide grounds for a reconsideration of my decision of 21 March 2002 that the northern section of the Scoresby Freeway is not a controlled action.

The traffic assessment reports, on which the Court finding that the referral was misleading in one respect was based, were available to me at the time of my decision that the northern section of the Scoresby Freeway was not a controlled action.  I have been aware of the possibility of the future need for a freeway link as a consequence of the Scoresby Freeway and have considered concerns about this matter when making decision about the Scoresby Freeway.

As such the Court findings, and your submissions in relation to the Court proceedings, do not provide a basis for reconsideration, as they are not substantial new information.  Further, in my view the environmental impacts of a future freeway link are not relevant impacts of the northern section of the Scoresby Freeway.

I note the Victorian Government has clearly stated that there is no plan to build a freeway link at this time.  If in the future the Victorian Government decides to build a freeway link that is likely to affect matters of national environmental significance, I would expect the proposal to be referred under the EPBC Act for a decision on whether environmental assessment and approval is required.

I would also like to take this opportunity to advise you that I have granted approval, subject to conditions, for the southern section of the Scoresby Freeway, following a rigorous assessment and approval process under the EPBC Act.  A copy of the approval and conditions is attached for your information.”

The applicant’s case

40                  The applicant described the advice given by Mr Early to the Minister on 21 March 2002, as set out in par 6 of Mr Early’s affidavit, as the “critical issue” in this case.  His primary contention was that Mr Early’s advice that it was not open to the Minister to consider the “secondary”, or “indirect”, effects of a referred proposal, when carrying out his duties under s 75, had been incorrect.  He submitted that the Minister was obliged to consider these effects, subject of course to commonsense standards of remoteness and relevance. 

41                  The applicant submitted that the plain words of s 75(2) suggested that the Minister was obliged to conduct the widest possible inquiry.  He supported that contention by referring to what he described as “the scheme of the EPBC Act”.  He submitted that the protection afforded under the Act proceeded upon the basis that a series of steps had to be taken in relation to any proposed action.  That series would begin with a referral to and initial assessment by the Minister.  Many proposals would be excluded at that stage.  The next step was the Minister’s decision about the manner in which proposals found to be “controlled actions” were assessed, with a range of options available from the most simple (preliminary documentation) to the most complex (full environmental impact statement under s 85(d), or public inquiry under s 85(e), of the EPBC Act).  The final step was the Minister’s decision to grant or withhold approval, possibly with conditions.  The applicant submitted that, in effect, the Act provided for a series of filters narrowing down to a small number the projects that were required to undergo rigorous assessments.  As the first of those filters, it made sense that a s 75 inquiry should be wide ranging, and not unduly constrained. 

42                  The applicant submitted that Australian and overseas authorities, dealing with analogous legislation, all supported his contention that the Minister was required to consider both the direct and indirect effects of proposed actions.  He referred to an article by Mr Murray Raff, titled “Ten Principles of Quality in Environmental Impact Assessment” (1997) 14 Environmental and Planning Law Journal 207-221 as support for that proposition. 

43                  The applicant also referred to various United States authorities involving the interpretation of s 102 of the National Environmental Policy Act of 1969 (42 USC 4332) (“the NEPA”).  He argued that these cases had established that highway projects should not be segmented when their environmental impact was being assessed.  He cited, for example, Swain v Brinegar 542 F.2d 364 (1976) at 368-369 in support of that proposition. 

44                  The applicant also relied upon Indian Lookout Alliance v Volpe 345 F. Supp. 1167 (1972) at 1170.  He acknowledged that this case had been reversed on appeal, but pointed out that the appellate court had decided that an even greater length of road needed to be examined:  see 484 F.2d 11 (1973).

45                  The applicant contended that the New Zealand Court of Appeal had adopted a similar approach to the interpretation of environmental protection legislation, albeit in a non-transport context.  He referred to Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 (“Environmental Defence Society Inc”).  In that case, the statute merely required a proponent to “forward to the Commissioner of the Environment an environmental impact report on the proposed work”.  The Court of Appeal said at 534:

“It is not unfair to counsel to remark that in the present case extreme positions have been taken up on the one side and the other.  A claim that the report need not go beyond discussion of direct consequences referable to the immediate site of the proposed work stands in contrast to the argument advanced … that secondary and even indirect consequences must always be included.  We do not accept either of these submissions in their unqualified form.  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.”

46                  The applicant submitted that the Minister ought to have adopted a similar approach when he made the substantive decision under s 75.  He accepted that there had to be “a real and sufficient link between the project referred and the secondary effect” (in this case, construction of the further road link) rather than a remote or fanciful connection.  He submitted, however, that it was not permissible to do as the Minister had done, and simply treat all such effects as irrelevant. 

47                  The applicant further submitted that, in the present case, the necessary “real and sufficient link” had been provided by the finding of Gray J that construction of the Mitcham-Frankston Freeway would be “highly likely” to lead to construction of the Eastern Freeway-Greensborough link. 

48                  The applicant acknowledged that the Minister might well conclude that secondary effects carried less weight than primary effects.  However, he submitted that secondary effects could not, for that reason, simply be disregarded. 

49                  Finally, the applicant called in aid the recent judgment of Kiefel J in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 (“Queensland Conservation Council”).  That case concerned the extent of the inquiry necessary to be undertaken by the Minister of the impact which a proposed development or activity may have upon the Great Barrier Reef World Heritage Area. 

50                  A proposal to construct a dam on the Dawson River in Queensland had been referred to the Minister.  The applicants, and others, expressed concern that a dam would enable cotton farming (which uses irrigation) to be undertaken.  Chemicals used during the course of that farming might travel downstream, and flow into the World Heritage Area. 

51                  The Minister considered that s 75 of the EPBC Act only required him to consider the effects of the operation of the dam by the entity proposing its construction, and did not extend to consequences that might follow the decision by others to use chemicals.  Kiefel J held that the necessary inquiry was a wider one than this, and that the Minister was therefore obliged to reconsider the matter. 

52                  It should be noted that, unlike the present case, the Minister’s decision in Queensland Conservation Council was that the proposed action was a “controlled action” under s 75.  He found that the construction and operation of the dam was likely to have a significant impact on certain listed threatened species, and on certain listed threatened ecological communities.  However, he did not consider that there would be any significant impact upon heritage values in the Great Barrier Reef World Heritage Area.  Accordingly, he did not nominate the controlling provisions of s 15A.  It was the Minister’s refusal to nominate those provisions that triggered the proceeding in that case. 

53                  Kiefel J noted that the Minister submitted that the ordinary and natural meaning of the phrase “all adverse impacts … the action … is likely to have” in s 75(2) was limited to the impacts that were likely to arise from the construction of the dam, and from its operation.  The Minister submitted that it did 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.  In short, the Minister contended that the phrase did not comprehend environmental consequences arising 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. 

54                  After referring to the decision of the New Zealand Court of Appeal in Environmental Defence Society, and also to various United States authorities, her Honour considered three Australian cases:  Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 per Cripps J; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 per Sackville J; and Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 per Davies J.  Her Honour said at [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 Environment Minister 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.”  (emphasis added)

55                  Her Honour then rejected the Minister’s submission that the legislative precursor to the EPBC Act, namely the Environment Protection (Impact of Proposals) Act 1974 (Cth), applied in a different statutory context, and was therefore likely to have had a wider operation.  She referred to the Explanatory Memorandum to the EPBC Act, noting its suggestion that the Act had been framed in such a way as to overcome a particular difficulty, namely that the former Act had been triggered by approvals made by the Government, or governmental authorities.  She said at [34]:

“…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.”

56                  Her Honour continued at [36]-[41]:

“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.”

57                  Having completed his submissions regarding the substantive decision, the applicant turned to the question whether he required an extension of time in order to proceed with his challenge to that decision.  His primary submission was that the statement of reasons provided by the Minister on 29 May 2002 did not disclose the true basis upon which the Minister made the substantive decision, and therefore did not comply with the requirements of s 13 of the ADJR Act.  He claimed that, at the time he read the reasons, he had not appreciated that the Minister had disregarded his submission, and ignored the “secondary effects” that the proposed action would bring about.  He further claimed that he did not discover that the Minister had approached this matter in this way until he received the Minister’s letter dated 7 May 2003, informing him that the Minister had acted upon Mr Early’s advice that “secondary effects” were irrelevant.  He maintained that he had assumed, when he read the statement of reasons, that the Minister had given consideration to the “secondary effects”, but had decided on the facts that the weight to be accorded to these effects did not warrant the conclusion that the proposed action was a controlled action. 

58                  It followed, so it was submitted, that the relevant reasons for the substantive decision were not provided until 7 May 2003, and that the present application, challenging the validity of that decision, had been brought within the 28-day time limit provided under the ADJR Act. 

59                  In the event that this submission was not accepted, the applicant submitted that time should be extended, pursuant to s 11(1)(c) of the ADJR Act.  In support of that submission, he relied essentially upon the same matters as were advanced in support of his argument that time did not commence to run until 7 May 2003. 

60                  The applicant noted that the second respondent, in particular, opposed any extension of time.  It relied upon the affidavit of Mr Sammut as demonstrating that it would suffer irremediable prejudice if time were enlarged.  The applicant responded to that argument by submitting that the only prejudice that the second respondent had identified was the expense and inconvenience to it if the applicant were successful in requiring the Minister to reconsider the substantive decision.  He contended that prejudice of this nature was not relevant, and that the only basis upon which prejudice could be taken into account was if it could be shown by one or other of the respondents that they would be disadvantaged, by reason of the delay, in presenting their case to the Court. 

61                  The applicant also argued that time should be extended because Gray J had found that the Minister had been “misled” by the original referral, and this finding, of itself, warranted a benevolent exercise of the Court’s discretion.

62                  As noted earlier, the applicant put forward a completely separate case in relation to what he described as the Minister’s second decision.  That decision was made on the basis of Mr Early’s advice, as reflected in the Minister’s letter of 7 May 2003.  The applicant submitted that Gray J’s finding that there was a “strong chance” that the Eastern Freeway-Greensborough link would be built amounted to “substantial new information” within the meaning of that expression in s 78(1).  He therefore submitted that the Minister had erred in law in refusing to reconsider his substantive decision. 

the first respondent’s case

63                  Mr Hanks QC, who appeared with Ms Orr, on behalf of the first respondent, began by submitting that the application for review of the substantive decision was filed well out of time.  The substantive decision was made on 21 March 2002, and the statement of reasons had been sent to the applicant a little over two months later, on 29 May 2002.  The time for filing an application for an order of review in respect of the substantive decision therefore expired at the end of June 2002.  The application was not filed until 10 June 2003, approximately twelve months late. 

64                  Mr Hanks submitted that the applicant’s attempt to overcome this fundamental difficulty by complaining about the adequacy of the statement of reasons should be rejected.  He submitted that s 13 of the ADJR Act required only that a statement of reasons set out in clear and unambiguous language the decision-maker’s understanding of the relevant law, any findings of fact on which his or her conclusions depended, and the reasoning processes which led to those conclusions:  Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (“Ansett”).  He further submitted, as is now almost routinely done, that the reasons of an administrative decision-maker are meant to inform, and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy might be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 

65                  Mr Hanks submitted that the statement of reasons satisfied all of the relevant statutory criteria.  It contained a concise statement of the relevant provisions of the EPBC Act, an explanation of the factual background to the substantive decision, a list of the evidence and other material upon which the Minister based that decision, his findings on material questions of fact, and a concise statement of his reasons for those findings. 

66                  Mr Hanks acknowledged that the statement of reasons did not include any reference to the possibility that an Eastern Freeway-Greensborough link might be built.  He submitted that this omission made it abundantly clear that the Minister did not regard that possibility as being relevant to the making of the substantive decision.  He argued that the Minister had acted correctly in approaching the matter in that way because the possibility that such a link might be constructed was nothing more than speculation and conjecture.  Accordingly, he submitted, the statement of reasons complied with the requirements of s 13, and the time for filing the application in respect of the substantive decision ran from the time that the applicant was furnished with that document on 29 May 2002.

67                  Mr Hanks then submitted that the applicant’s request for an extension of time should be refused.  He put forward two arguments in support of that submission.  First, he submitted that the application for review of the substantive decision had no real prospects of success.  Next, he submitted that the applicant had failed to provide an adequate explanation for the delay of almost a year in filing the application.  He submitted that the applicant’s claim, in his affidavit of 30 June 2003, that he believed at the time that the reasons were provided, on 29 May 2002, that the Minister had no capacity under the EPBC Act to investigate the truth of his allegations, was a wholly inadequate explanation for that delay. 

68                  Mr Hanks further submitted that the 28-day period prescribed in the ADJR Act for the filing of an application for review was intended to be taken seriously.  It indicated that the legislature viewed the public interest in the finality of decision-making as being of overriding importance. 

69                  Mr Hanks contended that if, contrary to his primary submission, the application were either within time, or time were extended, the application should nonetheless be dismissed.  He submitted that the applicant’s broad interpretation of s 75(2) was incorrect.  There was nothing in the section that required the Minister to consider the secondary or indirect effects of the proposed action, whether subject to “commonsense standards of remoteness and relevance”, or otherwise.  He contended that the applicant was wrong in arguing that the plain words of s 75(2) suggested “the widest possible inquiry”, or that the inquiry conducted by the Minister should not be “constrained by limitations read into the broad words of the Act”. 

70                  Mr Hanks developed his argument in the following way.  He submitted that, contrary to the applicant’s contention, the EPBC Act did not prescribe “a series of filters” that narrowed down to a relatively small number the projects that must undergo the most rigorous form of assessment.  Section 75(2) was the only filter in the assessment process established by the Act.  If the Minister decided that a proposed action was a controlled action, all of the relevant impacts of the action had to be assessed under Pt 8, and the entire action subjected to the approval processes contained in Pt 9.  If the Minister decided that a proposed action was not a controlled action, it was exempted from the need to undergo such assessment and approval procedures. 

71                  Mr Hanks submitted that the key expression in s 75(2), namely, “all adverse impacts (if any) the action has or will have or is likely to have on the matter protected by each provision of Part 3” should be given its ordinary and natural meaning.  He submitted that the words should be understood in their statutory context.  Part 3 prohibited certain action, attaching both civil and criminal sanctions, and establishing a multi-stage process for the assessment, and possible clearance, of those actions.  He submitted that in each case, the EPBC Act focussed upon the impacts, definite or likely, of the particular proposed action, and not on the impacts of other actions that were not the subject of the referral.  He contended that it was inconceivable that Parliament would have required hypothetical and speculative impacts to be taken into account. 

72                  Mr Hanks submitted that when the Minister decided that the impacts of a hypothetical Eastern Freeway–Greensborough link could not be taken into account in making a decision on the proposed action under s 75(1), the Minister was not, of course, endorsing or approving the construction, operation or maintenance of any such link.  The northern section of the Mitcham-Frankston Freeway did not require the construction of an Eastern Freeway–Greensborough link in order to enable the northern section to be used.  Any such link would be subject to the requirements of the EPBC Act independently of the proposed action.  If any such link were proposed, and it had a potential impact on a matter of environmental significance, the proponent would face civil and criminal liabilities unless the process of referral, assessment, and approval, was followed.  To require the Minister to consider the hypothetical future construction of an Eastern Freeway–Greensborough link as an “impact” of the proposed action would involve speculation and conjecture that would render administration of the Act utterly impracticable.

73                  Mr Hanks challenged the applicant’s reliance upon various United States authorities which, he submitted, dealt with the NEPA, environmental legislation that differed significantly from the EPBC Act.  He made the same point about the decision of the New Zealand Court of Appeal in Environmental Defence Society Inc.  He also challenged the applicant’s reliance upon the article written by Mr Raff.  He submitted that the article had been written before the enactment of the EPBC Act and was therefore of limited, if any, assistance in construing s 75(2).

74                  Mr Hanks submitted that the application for an order of review in respect of the substantive decision should therefore be dismissed on the basis that it was devoid of any merit.  In making the substantive decision, the Minister did not fail to take into account a relevant consideration.  The so-called “strong chance” that an Eastern Freeway–Greensborough link would be built as a consequence of the construction of the Mitcham-Frankston Freeway was not a relevant consideration in relation to the substantive decision. 

75                  Mr Hanks then submitted that the applicant’s challenge to the so-called “second decision” was incompetent.  He contended that no such “second decision” had ever been made.  All that the Minister had done was to act upon advice that was plainly correct that there was no “substantial new information”, within the meaning of that expression is s 78(1)(a) of the EPBC Act, arising out of the observations of Gray J in Mees v Roads Corporation.  Accordingly, there was simply no basis upon which the Minister could exercise the power, under that section, to reconsider his earlier substantive decision. 

the second respondent’s case

76                  Mr Dreyfus QC, who appeared with Dr Emerton, on behalf of the second respondent, largely adopted Mr Hanks’ submissions.  However, he went on to emphasise some points, and added several additional arguments.  He noted, for example, that the Minister’s decision “not to reconsider the first decision pursuant to s 78 of the EPBC Act” had been based upon the conclusion that there was no “substantial new information” within the meaning of that expression in s 78(1)(a), as explained in the Minister’s letter to the applicant dated 7 May 2003.

77                  Mr Dreyfus also submitted that the applicant’s description of Minister’s “second decision” was inaccurate.  In fact, the Minister had simply decided that he had no power to make a decision to revoke the substantive decision, and not, as the applicant contended, that he would not do so.  The actual decision taken by the Minister was not the subject of the application for review, and accordingly, the Court could not entertain a challenge to that decision. 

78                  Mr Dreyfus submitted that the Minister had complied with all of the requirements of specified by the EPBC Act.  In his letter of 7 May 2003, he made it plain that he had considered the Court findings in Mees v Roads Corporation, and concluded that they were based on traffic assessment reports that had been available to him at the time he made the substantive decision.  Mr Dreyfus submitted that the Minister had correctly concluded that those findings did not add to the information that he previously had. 

79                  Mr Dreyfus joined with Mr Hanks in submitting that the statement of reasons provided to the applicant on 29 May 2002 met all of the requirements of s 13 of the ADJR Act.  The statement of reasons made it abundantly clear that the Minister had not taken the environmental impacts of a “new freeway link” into account.  The possible impact upon the environment of such a link had been the very issue addressed by the applicant in his detailed submission to the Minister.  Yet, not a single word had been directed to that issue in the statement of reasons. 

80                  Mr Dreyfus submitted that the statement of reasons was both clear and unequivocal.  A fair reading of the statement enabled the applicant to decide whether, in his view, the substantive decision involved an unwarranted finding of fact, or an error of law, that was worth challenging.  The statement met all of the requirements laid down by Woodward J in Ansett.  The applicant did not need to be told of the advice provided to the Minister by Mr Early, as set out in par 6 of Mr Early’s affidavit, in order to understand the reasons underlying the substantive decision. 

81                  Mr Dreyfus also noted that under s 13(7) of the ADJR Act, a person who has requested reasons may apply to the Court for further and better particulars in relation to those reasons.  The applicant had not sought any such particulars.  Rather, he had attempted, a year later, to argue that the statement of reasons did not satisfy the requirements of s 13.  Perhaps somewhat unkindly, Mr Dreyfus described the applicant’s submission as “disingenuous”. 

82                  Mr Dreyfus then turned to the applicant’s explanation as to why he had not instituted proceedings under the ADJR Act within the prescribed period after receiving the Minister’s statement of reasons.  As noted earlier, the applicant had claimed that he had believed that the Minister’s failure to refer to his submission “about the Bulleen–Heidelberg freeway” was the result of the Minister having had no power under the EPBC Act to investigate the truth of his allegations regarding that issue.  Mr Dreyfus submitted that even if what the applicant claimed were true, it would be entirely irrelevant.  It was plain from the statement of reasons that the Minister had not taken the possibility that the construction of the Mitcham-Frankston Freeway might lead to a further freeway link into account when making the substantive decision.  Thus, the applicant knew by 29 May 2002 that the Minister had not taken the “secondary effects” of the proposed action into account. 

83                  Mr Dreyfus then turned to the issue of prejudice.  He submitted that any further delay in the decision-making process would lead to significant prejudice to the Victorian Government, which had expended more than $50 million on the freeway project to date.  Any delay, based on a need to have the Minister reconsider his substantive decision, would be costly.  Given the size, complexity and cost of the project, the applicant ought not now be permitted to challenge that decision.  Had he wished to do so, he could have instituted proceedings more than a year ago.  The fact that he had not done so was a matter of choice.

84                  Finally, Mr Dreyfus joined with Mr Hanks in submitting that the Minister had not been obliged, under the Act, to have regard to the possible “secondary effects” of the proposed action.  He submitted that s 75 in no way contemplated a broad ranging environmental impact analysis, that included the theoretical possibility, whether described as a “strong chance”, or not, that a new freeway link might be built. 

consideration

85                  Much of the argument in this case turned upon the proper construction of s 75(1) of the EPBC Act.  However, the matter can be resolved on a much narrower basis.  Unless the applicant can make good his contention that the statement of reasons provided by the Minister did not satisfy the requirements of s 13 of the ADJR Act, his application is plainly well out of time. 

86                  The statement of reasons is a detailed document that runs for six pages.  It sets out, in clear and unequivocal language, the Minister’s understanding of the relevant law, his findings of fact, and the reasoning process that led to his conclusions.  It contains a comprehensive explanation of why the Minister decided that the proposed action was not a controlled action.  As Mr Hanks submitted, it contains a concise summary of the relevant provisions of the EPBC Act, an explanation of the factual background to the substantive decision, a list of the evidence and other material upon which the Minister based that decision, and his findings on material questions of fact.  Importantly, it contains his finding that the proposed action was unlikely to have a significant impact on either listed threatened species, or listed migratory species.  The statement of reasons therefore satisfies all of the requirements of s 13, in accordance with the test formulated by Woodward J in Ansett, and the many cases that have endorsed that test.  See, for example, Soldatow v Australia Council (1991) 28 FCR 1 at 2; Brackenreg v Comcare Australia (1995) 56 FCR 335; Comcare Australia v Mathieson [2004] FCA 212; and Preston v Secretary, Department of Family and Community Services [2004] FCA 300.

87                  The applicant submitted that the absence of any reference to an Eastern Freeway–Greensborough link in the statement of reasons left him uncertain as to whether the Minister had taken the possibility that such a link might be built into account when making the substantive decision, but rejected it as a decisive factor, or had simply declined to consider it at all.  He claimed that it was not until he received the Minister’s response to his application to have the substantive decision reconsidered, on 7 May 2003, that he discovered that the Minister, acting on advice from Mr Early, had treated that possibility as irrelevant. 

88                  I am unable to accept the applicant’s submission.  I do not think that the statement of reasons provided by the Minister was in any way defective.  Anyone reading that statement would immediately appreciate that it said nothing about any possible future freeway link, or the secondary effects that might eventuate from such a link. 

89                  The applicant is a lecturer in the Faculty of Architecture, Building and Planning at the University of Melbourne.  According to the judgment of Gray J in Mees v Roads Corporation, he is also a former President of the Public Transport Users’ Association.  He is highly intelligent, articulate, and a well-informed proponent of environmental protection.  Indeed, the extraordinary quality of his written and oral submissions demonstrates that he has a comprehensive awareness of the operation of the EPBC Act, and of the general principles governing environmental assessments and approvals. 

90                  In my opinion, any person of reasonable intelligence would have appreciated, upon reading the Minister’s statement of reasons, that when making his substantive decision the Minister had not taken into account the possibility that an Eastern Freeway–Greensborough link might eventually be built, and that such a link might result in harm to the environment.  If there were any doubt about that matter, it was open to the applicant to seek clarification from the Minister.  It was also open to him to invoke the formal procedures available under s 13(7) of the ADJR Act. 

91                  The applicant conceded in argument that, in hindsight, it would have been better if he had adopted either or both of these courses.  He is, of course, entitled to credit for his candour.  However, that does nothing to assist his primary submission that the statement of reasons was defective.  His mistaken belief that the Minister had taken his submission into account does not help him in that regard. 

92                  Accordingly, the applicant, having brought this challenge to the Minister’s substantive decision almost twelve months out of time, now requires an extension of time in order to pursue it.

93                  The applicant’s arguments in support of an extension of time are not, in my view, sufficiently persuasive to warrant the adoption of that course.  The principles that govern applications for extensions of time are well established.  They are set out in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.  In that case, his Honour said at 348-9:

“Section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not set out any criteria by reference to which the court’s decision to extend time for an application for review under s 5 is to be exercised.  Already there have been a number of decisions of judges of this Court, all sitting at first instance, dealing with the approach proper to be taken.  They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:

1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The “prescribed period” of twenty-eight days is not to be ignored…  Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained …  It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time…

2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”…) and a case where the decision-maker was allowed to believe that the matter was finally concluded.…  The reasons for this distinction are not only the “need for finality in disputes”… but also the “fading from memory” problem referred to in Wedesweiller v Cole(1983) 47 ALR 528.

3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension…

4. However, the mere absence of prejudice is not enough to justify the grant of an extension…  In this context, public considerations often intrude…  A delay which may result, if the application is successful, in the unsettling of other people… or of established practices… is likely to prove fatal to the application.

5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted…

6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion…”

94                  These principles have been applied consistently in many cases since they were first laid down in Hunter Valley.  Some recent examples include Marsden v The Queen [2002] FCAFC 229 at [16]; Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10]; Parker v The Queen [2002] FCAFC 133 at [6]–[7]; and Goldie v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 383 at 393-4.

95                  However, in Comcare v A’Hearn (1993) 45 FCR 441, a Full Court proposed a qualification to the first of Wilcox J’s principles that “[i]t is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay"”.  In A’Hearn, the Court said at 444:

“We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given.  Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition: see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen(1984) 3 FCR 344 at 348 and Maric v Comcare(1993) 40 FCR 244 at 247-249.”

96                  Recently in Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153, Conti J summarised Wilcox J’s principles, and went on to discuss the qualification established in Comcare v A’Hearn.  His Honour said at [29]:

“The qualification to the foregoing longstanding dictum of Wilcox J, which I have foreshadowed, was made by Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 reading as follows:

‘The comment of his Honour in respect of the first guideline, that it is a pre-condition to the exercise of discretion that the applicant show an acceptable explanation of a delay might, if seen as a statement of law, require some modification having regard to the decision of the full court in Comcare v A’Hearn (1993) 119 ALR 85 at 88.  Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered.  So, too, would failure to give any explanation at all.  But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant for review.

In the present case no explanation at all has been given.  The failure to give an explanation is a matter to be taken into account.  It does not, however, in my view, lead to the conclusion that the application should automatically be disallowed.’”

97                  Conti J proceeded to set out other examples of cases that have addressed the issue of onus of proving that time should be extended.  His Honour said at [30]–[31]:

“In Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541, the High Court discussed the operation of the principle concerning the grant of extensions of time in which to bring proceedings prima facie barredby time limitation.  Justice Dawson said at 544 that he agreed with McHugh J that ‘once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation’.  Justice McHugh said at 553-554 that ‘[t]he discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question’, and that therefore an applicant for leave ‘has the positive burden of demonstrating that the justice of the case requires that extension’.  Justice McHugh earlier cited at 551 the well known observation of Lord Hailsham in R v Lawrence [1982] AC 510 at 517 the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.  Moreover in the joint judgment of Toohey and Gummow JJ at 547, their Honours observed that ‘[t]he discretion conferred by the subsection is to order an extension of the limitation period.  It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour.  There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion.  But the ultimate onus of satisfying the court that time should be extended remains on the applicant’. 

Moreover as Branson J observed in Vel v Human Rights and Equal Opportunity Commission (1997) 47 ALD 219, it is possible that the justice of a particular situation may require an extension of time within which to seek administrative review, even when the applicant fails to give an explanation for the delay.  That observation was in the context of an applicant’s limited command of the English language and his limited understanding of the workings of the Australian legal system.  Her Honour found herself compelled nevertheless to conclude that the discriminatory conduct, having occurred more than ten years earlier, did not justify the exercise of a discretion in favour of an applicant for administrative review, given the prejudice to the Commonwealth if the decision of the Commissioner there involved was to be set aside.”

98                  In Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491, McHugh J said at [16]:

“Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.  As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”.  The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court.  In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.” (footnotes omitted)

99                  Applying to the present case the principles laid down in Hunter Valley (as modified by Comcare v A’Hearn), I am satisfied that the application for an extension of time should be refused.  The delay of almost twelve months is, in my view, inordinate and inadequately explained.  The applicant, having been provided with the Minister’s statement of reasons on 29 May 2002, elected not to challenge that decision.  The fact that he may have been labouring under a misapprehension as to why the Minister had not referred specifically to his earlier submission may explain, but does not justify, the delay that then resulted.  It was not until more than a year later that he instituted this proceeding, claiming that time did not begin to run until 7 May 2003 when he first appreciated that he had been mistaken.  As noted earlier, the second respondent described that claim as “disingenuous”.  I would not, myself, use such language.  It is sufficient for me to say, as I have done, that the applicant’s contention cannot be accepted. 

100               The applicant submitted that the Court was not entitled to have regard to any prejudice that might be suffered by the grant of an extension of time except prejudice that related to the actual conduct of the proceeding.  That submission cannot be accepted.  It is squarely at odds with the third principle formulated by Wilcox J in Hunter Valley.  His Honour made it clear that “any prejudice to the respondent”, includingany prejudice in defending the proceedings occasioned by the delay, was a material factor militating against the grant of an extension.  Plainly, no limitation of the kind contended for by the applicant should be read into the exercise of the Court’s discretion. 

101               I have also had regard to the fifth of the principles set out at [93] above.  That requires “the merits of the substantial application” to be taken into account in considering whether an extension of time should be granted. 

102               There is a genuine question regarding the scope of the matters that the Minister must take into account when exercising the powers conferred upon him by s 75.  Mr Hanks submitted that the section did not require or permit the Minister to have regard to anything other than the direct effects of the proposed action stemming from the proponent’s own conduct.  He submitted that to the extent that Kiefel J, in Queensland Conservation Council, had held to the contrary, her Honour’s decision was plainly incorrect.  I was informed that her Honour’s judgment is the subject of an appeal that will be heard by the Full Court in May of this year. 

103               Mr Hanks’ contention that Queensland Conservation Council was wrongly decided was, in substance, put as an alternative submission.  He contended that even on the approach taken by Kiefel J, the applicant’s argument in the present case would fail.  He drew attention her Honour’s observation at [39] that even though, in her view, the language used in s 75 supported a wider inquiry than the Minister had undertaken, and might indeed require a “wide ranging inquiry”, the Minister would still exclude from his consideration “those possible impacts which lie in the realms of speculation”.  Mr Hanks submitted that it was open to the Minister, when he made the substantive decision, to conclude that the possibility that an Eastern Freeway–Greensborough link would be built was wholly speculative.  It would therefore fall outside the bounds of what he was required, under the EPBC Act, to take into account. 

104               The applicant based much of his attack upon the Minister’s decision to disregard the possible construction of the link upon Gray J’s finding in Mees v Roads Corporation that there was a “strong chance” that it would be built.  It should be noted, however, that Gray J did not deliver judgment in that matter until 8 April 2003, almost a year after the Minister had made the substantive decision. 

105               There is a real question as to whether a finding of that nature, made in proceedings to which the Minister was not a party, and in which he was not represented, can be used to vitiate his earlier decision.  I am prepared, for present purposes, to assume that such a finding can be used in that way.  Nonetheless, and notwithstanding the support that the applicant claims to derive from Queensland Conservation Council, I am not persuaded that the merits of this case warrant the grant of an extension of time. 

106               In arriving at that conclusion, I should not be taken to be expressing any view regarding the correctness of the decision in Queensland Conservation Council.  Ultimately, that will be a matter for the Full Court.  It is sufficient, for my purposes, to note that Kiefel J specifically excluded hypothetical possibilities from the range of matters that the Minister was required to take into account when exercising his powers under s 75. 

107               I consider the possible construction of an Eastern Freeway–Greensborough link to fall within her Honour’s concept of a hypothetical possibility.  I note, for example, the Victorian Government’s strenuous denials that any such link is intended.  Any case involving environmental assessment and approval will always involve some element of conjecture.  However, there seems to me to be an important difference between the conjecture as to whether a proposed action (itself certain to occur if approval is granted) is “likely” to endanger a particular threatened species, and the far greater conjecture involved in considering whether a proposed action might, in turn, lead to some other action, which might, in turn, ultimately have that effect. 

108               This takes me to the final issue raised in this application.  The applicant submitted that even if his challenge to the substantive decision were dismissed, the Minister’s decision not to reconsider that first decision involved jurisdictional error. 

109               There are several answers to the applicant’s contention.  The decision that is impugned is described as a decision not to reconsider the first decision.  In fact, as the respondents correctly note, the Minister did not make any decision in those terms.  Instead, he simply concluded that there was no “substantial new information” upon which he could act, pursuant to s 78 of the EPBC Act. 

110               The respondents’ contentions in this regard must be accepted.  Without wishing to be too technical about the matter, the Minister did not decide that he would not reconsider his first decision.  He decided instead that he could not reconsider that decision because a prerequisite to the exercise of that power was not met.  If there were no “substantial new information”, then there was no scope for the Minister to reconsider his earlier decision.  The applicant is either correct in his contention that this prerequisite was met, or he is not. 

111               The only material upon which the applicant relied in support of his request to the Minister under s 78 was the judgment of Gray J in Mees v Roads Corporation.  It will be recalled that his Honour was concerned, in that case, with the question whether information provided to the Minister in relation to the proposed Scoresby Freeway was false or misleading.  The three respondents to that proceeding, namely the Roads Corporation, the Victorian Minister for Transport, and the State of Victoria, were accused by the applicant of having a “secret plan” to construct a further freeway link that would result in a complete ring road.  After hearing extensive evidence over a period of several days, his Honour entirely rejected that allegation. 

112               Gray J went on to hold that the Victorian Government’s failure to inform the Minister that there was what his Honour described as a “strong chance” that a future road link would be built rendered its referral of the proposal for the northern section of the Mitcham-Frankston Freeway “misleading in one respect”.  His Honour noted, at [118], that it may have been that the Minister was capable of discerning the truth, because of the “obvious gap” and the “obvious inadequacy” of a ring road that was incomplete.  He also noted that the Minister might well, in fact, have been fully informed.  Certainly the applicant had taken steps to convey to him that it was likely that a future link would be developed, and to inform him of its potential environmental significance.  However, in his Honour’s view, these facts could not have a bearing on the question whether the document itself was misleading. 

113               Gray J’s reasoning rested, in part, upon an observation that Mr Hanks attacked as incorrect.  His Honour said:

“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.”

Mr Hanks submitted that it was plain that the Minister was entitled to obtain information from sources other than the party responsible for the referral, and act upon that information.  It is unnecessary for me to express any opinion on this issue. 

114               None of the material upon which Gray J based his observation was, in any relevant sense, “new”.  The traffic assessment reports to which his Honour referred, and upon which he based the conclusion that there was a “strong chance” that the Eastern Freeway-Greensborough link would be built, were all available to the Minister at the time he made the substantive decision.  Admittedly, Gray J went on to draw certain inferences from those traffic assessment reports.  The Minister may, or may not, have drawn similar inferences.  Nonetheless, it is difficult to see how a Judge’s conclusion, however sound it may be, can, of itself, amount to “substantial new information”.  A finding, based entirely upon inferences drawn from documents that were already before the Minister, is not easily characterised as “information”, still less “new” information. 

115               The Minister filed a notice of objection to competency, on 14 July 2003, in relation to the challenge to his second decision.  The Minister objected to the jurisdiction of this Court to try the application for an order under the ADJR Act on the ground that the second decision, made on 7 May 2003, was not a decision under the EPBC Act.  In my opinion, the objection to competency should be upheld. 

116               The applicant has failed in his challenge to the substantive decision.  An objection to competency has been upheld in relation to his challenge to the second decision.  The application for an order of review must therefore be dismissed.  Mr Hanks indicated that, in the event that the application were to be dismissed, the first respondent would seek costs.  Mr Dreyfus, however, indicated that the second respondent would not seek costs. 

117               I informed the applicant and the first respondent that I would not deal with any question of costs, as between those parties, until after I had delivered my judgment in this matter.  Accordingly, I propose to give directions for the filing of written contentions by those parties regarding that issue.  I will determine the matter of costs on those written submissions.

Associate:

Dated:              31 March 2004