FEDERAL COURT OF AUSTRALIA
Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No. 2) [2008] FCA 1521
WORDS AND PHRASES – ‘presumption of regularity’
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, 16
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3A, 16, 17B, 18, 18A, 20, 20A, 23, 24A, 26, 27A, 67, 68, 75, 82, 87, 102, 103, 104, 105, 130, 131, 133, 136, 139, 140, 391, 515, 523, 524, 524A, 525, 527
Bushell v Environment Secretary [1981] AC 75
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Kingham v Sutton [2002] FCAFC 107; 114 IR 137
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Aboriginal and Torres Strait Island Affairs v State of Western Australian (1996) 67 FCR 40
Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162
Minister for Immigration and Multicultural Affairs v Singh (2000)98 FCR 469
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723
Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2003) 133 FCR 190
Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548
Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363
Tickner v Chapman (1995) 57 FCR 451
United Airlines v Secretary, Department of Transport and Communication (1990) 26 FCR 598
PHOSPHATE RESOURCES LIMITED v MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS
WAD 135 OF 2007
BUCHANAN J
13 OCTOBER 2008
SYDNEY (PART-HEARD IN PERTH)
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 135 OF 2007 |
| BETWEEN: | PHOSPHATE RESOURCES LIMITED Applicant
|
| AND: | MINISTER FOR MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Respondent
|
| BUCHANAN J | |
| DATE OF ORDER: | 13 OCTOBER 2008 |
| WHERE MADE: | SYDNEY (PART-HEARD IN PERTH) |
THE COURT ORDERS THAT:
The decision of the Minister for the Environment and Water Resources, dated 27 April 2007, refusing approval to the applicant for expanded mining on Christmas Island, which was referred for consideration pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 1 November 2001 and identified as EPBC 2001/487, is set aside.
THE COURT DIRECTS THAT:
1. The applicant is to file any application for costs within 14 days, supported by a written submission.
2. The respondent is to file any written submission in opposition within a further 14 days.
3. The applicant may file a written submission in reply, if necessary, within a further 7 days.
4. The question of costs will be decided on the basis of the written submissions unless a party expressly seeks a further oral hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 135 OF 2007 |
| BETWEEN: | PHOSPHATE RESOURCES LIMITED Applicant
|
| AND: | MINISTER FOR MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Respondent
|
| JUDGE: | BUCHANAN J |
| DATE: | 13 OCTOBER 2008 |
| PLACE: | SYDNEY (PART-HEARD IN PERTH) |
REASONS FOR JUDGMENT
BUCHANAN J:
PHOSPHATE MINING ON CHRISTMAS ISLAND
1 According to evidence given in the present case by Lai Ah Hong, the Managing Director of the applicant, Phosphate Resources Limited (‘PRL’), phosphate mining began on Christmas Island over 100 years ago, in the late 1890s. It was a business operation of the Clunies Ross and Murray families. In 1948 the British Phosphate Commissioners took over the management of mining on Christmas Island as agent for the Australian and New Zealand governments. In 1982 the Phosphate Mining Company of Christmas Island, wholly owned by the Australian government, took over the mining operations from the British Phosphate Commissioners. The mining operations were closed in 1987 and a liquidator was appointed but the local union, the Union of Christmas Island Workers, was instrumental in the re-establishment of mining operations in 1990.
2 PRL was incorporated, under the name of Phosphate Resources NL, on 12 June 1989. Its initial shareholders were members of the union. In a joint venture with one of its subsidiaries and Cluff Engineering, PRL acquired the assets of the previous operator. PRL subsequently bought out Cluff Engineering’s interest. PRL was granted a mining lease in 1998 for 21 years. Although the current mining lease therefore expires in 2019 PRL’s assessment is that ‘there are insufficient high grade phosphate resources in this lease to last for the balance of the term of the lease’.
THE APPLICATION FOR NEW MINING LEASES
3 PRL approached the Australian government about an extension to its mining operations early in the current lease term, in 2001. It proposed mining in nine additional areas on Christmas Island. Modifications were subsequently made to the proposal, particularly to avoid identified environmental effects, with the result that the area directly encompassed by the original additional mining proposal of 403.7 hectares was reduced to 256.3 hectares. PRL emphasised that an area of this size represented less than 2% of the Christmas Island land mass.
4 PRL estimated that approving its application would extend export operations, from a projected three to five years, to ten years. It said, in support of the proposal:
‘If the mining proposal does not proceed and the current mining operations are required to close within three to five years, there will be catastrophic effects on the economic and social environment of Christmas Island. There will also be significant impacts on the Australian economy.’
and:
‘The unemployment and subsequent population loss that will flow from the cessation of mining will make the maintenance of the metaphysical and built elements of Christmas Island’s cultural heritage untenable. As a result the unique cultural heritage of the Island will be seriously impacted. The loss of population is likely to lead to the collapse of the vibrant religious and cultural activity. Similarly depopulation will result in the loss of the inputs of CIPs employees into the social fabric and social cohesion of the Island.’
(CIP is Christmas Island Phosphates, the name under which PRL trades.)
5 The proposal required assessment against the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Act’), which obliged detailed attention to the environmental impact of the mining proposal. PRL contended in an environmental impact statement prepared for that purpose that ‘the impacts of the modified proposal are within the limits of environmental acceptability and will have a number of positive benefits for the whole environment of Christmas Island including both the natural and social and economic environment’. It said:
‘In the proponent’s view the proposal in its final form represents a balanced and justifiable outcome. The proposal is firmly based on the proponent’s extensive experience in its current mining and rehabilitation operations, a comprehensive research program and sound scientific principles. It offers a balance of beneficial socio-economic security for the Island’s unique community, benefits for the broader Australian economy and enhanced outcomes for the conservation of the Island’s biodiversity.’
6 A decision refusing approval was made on 27 April 2007 by Mr Turnbull, who was then Minister for the Environment and Water Resources and had portfolio responsibility for the administration of the Act. (Substitution of the Minister who now has portfolio responsibility for the administration occurred by consent for the purpose of the proceedings – s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). The decision made on 27 April 2007 had significant consequences for businesses and people on Christmas Island.
7 The way in which the proposal was to be assessed, and the matters which the Minister was required to take into account, were directed by the Act. An assessment of, and a decision about, the application for extended mining operations on Christmas Island required judgments to be made about a range of factors, some of which needed to be balanced against others. One of the matters which the Minister was required to take into account concerned the environmental impact statement produced by PRL in accordance with guidelines provided by the Department. The environmental impact statement advanced a case, on balance, in support of the proposal, particularly having regard to its social and economic benefits; matters which the Minister was directed by the Act to consider.
8 The Minister refused approval in accordance with recommendations made to him in two departmental briefs and an assessment report which was required by the Act to be made by the Department and provided to him. The economic and social benefits of the proposal were there said to be outweighed by considerations concerning the environment and biodiversity.
THE CHALLENGE TO THE MINISTER’S DECISION
9 After the Minister made his decision PRL asked for a written statement of his reasons. On 14 June 2007, about six weeks after the decision was made, the Minister signed a Statement of Reasons for his decision. That written Statement of Reasons set out a long series of explicit factual findings and judgments said to have been made by the Minister in the course of coming to his final decision. At the outset, and until quite late in the proceedings, PRL accepted that the Statement of Reasons should be accepted as identifying the factual conclusions reached by the Minister and explaining his reasons for decision based on those conclusions. It mounted its case, and presented its submissions in chief, both in writing and orally, on that important premise.
10 The ADJR Act permits a review in this Court of the decision made by the Minister. The grounds upon which such a decision may be challenged are set out in s 5 of the ADJR Act. They involve challenges on legal grounds. They do not include challenges merely to findings of fact or the assessment of merits. Those distinctions and limitations are ones which were largely ignored in the challenges which PRL initially sought to make to the Minister’s decision.
11 It would be tedious, unproductive and unnecessary to attempt to illustrate, much less discuss in detail, all the ways in which the limitations upon the scope of the proceedings, and hence the matters which the Court may take into account, were not observed by PRL as it originally formulated its arguments. Many of the challenges which PRL sought to make initially were, in truth, challenges to the findings of fact set out in the Statement of Reasons and to the explanation there given about the merits of PRL’s application. Later in this judgment I will explain in broad outline the challenges which were made to the decision, based on an acceptance of the Statement of Reasons as an accurate description of the basis for the decision.
12 During the course of oral submissions for the respondent, and after the respondent had put its case in chief by both written and oral submissions, PRL changed its position. It withdrew its acceptance that the written Statement of Reasons should be regarded as accurately stating the Minister’s actual reasons for decision. That change of position was of considerable significance. It required attention, in the first instance, assuming it was to be permitted, to whether the parties should have an opportunity to supplement their cases. I shall explain in more detail how the change in position came about, the procedural steps taken in response to it and the additional issues which were thereby generated.
THE EVIDENCE
13 The proceedings were commenced by application and statement of claim. However, the respondent successfully resisted PRL’s proposal that the proceedings should continue on the pleadings. Instead French J decided on 27 September 2007, in accordance with the respondent’s desires, that ‘the matter should proceed by way of affidavit and written submissions’ (Phosphate Resources Limited v Turnbull, Minister for Environment and Water Resources [2007] FCA 1507 at [10]).
14 Before the hearing commenced the respondent filed a large number of documents. PRL later filed two affidavits sworn by Lai Ah Hong, the Managing Director of PRL. The respondent filed two affidavits sworn by Gerard Patrick Early, Deputy Secretary of the Department of the Environment and Water Resources. The first of Mr Early’s affidavits also attached a further number of documents.
15 The evidence filed to that point disclosed the material which was before the Department when it assessed PRL’s application, the briefs which were given to the Minister before he made his decision on 27 April 2007 and the written Statement of Reasons provided to PRL on 14 June 2007. That was the evidentiary material on which the case went to a hearing.
16 Later, in circumstances to which it will be necessary to refer in greater detail, further evidence was filed. It consisted of a further brief given to the Minister shortly before he signed the Statement of Reasons and a third affidavit by Mr Early sworn on 6 August 2008. That affidavit sought to identify certain elements of departmental practice and to explain some ‘errors’ in the material provided to the Minister before he made his decision on 27 April 2007.
THE STATUTORY SCHEME
17 A number of amendments were made to the Act shortly before the Minister’s decision was made. Some, due to the operation of transitional provisions, did not apply to the decision. Further, some aspects of the assessment process were also governed by earlier provisions which applied when those aspects required attention. Those complexities can largely be put to one side because no change of substance, which might affect the outcome of the case, occurred with respect to matters which require attention. I will endeavour, where complications of this kind arise, to set out the statutory provisions operative for the purpose of the proceedings.
18 There were a number of provisions in the Act which prohibited the taking of certain ‘actions’ that would have a ‘significant impact’ unless approval was first sought and given under Part 9 of the Act. The term ‘action’ was defined and limited by ss 523, 524 and 524A. What was proposed by PRL was an ‘action’. The meaning of ‘impact’ was given by s 527E. It included both direct consequences and a range of indirect consequences. The term ‘significant impact’ was not defined. The prohibiting sections which required consideration in the present case were ss 16/17B (significant impact on the ecological character of a declared RAMSAR wetland – the RAMSAR Convention is the convention on wetlands of international importance, especially as waterfowl habitat, ‘done’ at RAMSAR Iran on 2 February 1971), ss 18/18A (significant impact on a listed threatened species included in the extinct in the wild category); ss 20/20A (significant impact on a listed migratory species); ss 23/24A (significant impact on the environment in a Commonwealth marine area – Commonwealth marine area was defined in s 24) and ss 26/27A (significant impact on the environment on Commonwealth land – Commonwealth land was defined in s 27 - see also s 525).
19 Section 67 of the Act designated an action, which would be prohibited by, inter alia, ss 16/17B, 18/18A, 20/20A, 23/24A or 26/27A, as a ‘controlled action’. The prohibiting provisions were each designated a ‘controlling provision’. Section 68 required that a person who proposed to take such an action refer the proposal to the Minister for decision whether or not the action was a controlled action. Referral of such a question to the Minister by PRL in 2001 commenced the chain of decisions and assessments that preceded the present proceedings.
20 If the Minister decided that an action was a controlled action, s 82 of the Act applied a series of legislative provisions to the assessment of the ‘relevant impacts’. The term ‘relevant impacts’ was defined by s 82 and extended to past as well as future and probable impacts. Section 87 required the Minister to decide on an approach for the assessment of the relevant impacts. One of those approaches was ‘assessment by environmental impact statement under Division 6’ (s 87(1)(d)). That was the approach chosen. A series of further statutory directions (in Chapter 4, Part 8, Division 6 of the Act) were thereby engaged. The Minister was required to ‘prepare written guidelines for the content of a draft statement about the action and its relevant impacts’ (s 102). After a period for comment and finalisation of the environmental impact statement, the Secretary of the Minister’s Department was also required to provide an ‘assessment report’ (s 105).
21 The first two stated objects of the Act were as follows:
‘(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.’
22 The ‘principles of ecologically sustainable development’, which the Act directed must be taken into account in considering whether to approve certain actions (see s 136(2)(a)) were stated in s 3A of the Act in the following way:
‘The following principles are principles of ecologically sustainable development:
(a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;
(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
(c) the principle of inter-generational equity – that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
(d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;
(e) improved valuation, pricing and incentive mechanisms should be promoted.’
23 Reconciliation of potentially conflicting objectives within these ‘principles’ required a balance to be struck between avoiding damage to the environment and social, economic and equitable considerations. Provided the Minister took into account matters identified for that purpose by the Act, and did not take into account irrelevant or extraneous matters, it was left to the Minister to strike the necessary balance and come to an ultimate conclusion. The central thrust of PRL’s representations to the Minister was that the risks of environmental damage could be satisfactorily contained and that the social and economic factors to which it drew attention should have prevailed over those risks. It contended, in effect, that the balance should have tipped in the other direction.
24 Section 130 of the Act required the Minister to decide whether or not to approve the taking of the action for the purpose of each of the controlling provisions. Section 136 set out the conditions governing the Minister’s consideration of whether or not to approve the taking of an action. It is as well to set it out in full in the form it took as it applied to the Minister’s decision which was challenged in the present case.
‘136. Mandatory considerations
(1) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;
(b) economic and social matters.
(2) In considering those matters, the Minister must take into account:
(a) the principles of ecologically sustainable development; and
(b) the assessment report relating to the action; and
(c) if the action was assessed under Division 5 or 6 of Part 8 (which deal with public environment reports and environmental impact statements) – the report or statement about the action finalised by the designated proponent; and
(d) if any inquiry was conducted under Division 7 of part 8 in relation to the action – the report of the commissioners; and
(e) any other information the Minister has on the relevant impacts of the action (including information in a report on the impacts of actions taken under a policy, plan or program under which the action is to be taken that was given to the Minister under an agreement under Part 10 (about strategic assessments)); and
(f) any relevant comments given to the Minister by another Minister in accordance with an invitation under section 131.
Person’s environmental history
(4) In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval having regard to:
(a) the person’s history in relation to environmental matters; and
(b) if the person is a body corporate – the history of its executive officers in relation to environmental matters; and
(c) if the person is a body corporate that is a subsidiary of another body or company (the parent body) the history in relation to environmental matters of the parent body and its executive officers.
Minister not to consider other matters
(5) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Subdivision to consider.’
(Emphasis added.)
(There was no s 136(3).)
25 Relevantly for present purposes, the Minister was expressly required, when considering matters relevant to matters protected by the controlling provisions and economic and social matters, to take into account the principles of ecologically sustainable development, the assessment report provided by the Secretary and the environmental impact statement prepared by PRL in accordance with the guidelines prepared by the Minister.
ASSESSMENT OF PRL’S APPLICATION
Identification of the controlling provisions
26 PRL referred its proposal for additional mining to the Department of the Environment and Heritage (then the relevant Department) on 1 November 2001. It identified ss 18/18A, 20/20A and 26/27A as controlling provisions relevant to its proposal. It said ss 16/17B and 23/24A were not relevant and were therefore not controlling provisions. On 14 November 2001 Mr Gerard Early, Deputy Secretary of the Department, decided, as a delegate of the Minister, that the proposed action was a controlled action and that the controlling provisions were each of: ss 16/17B; 18/18A; 20/120A; 23/24A; and 26/27A. Reasons for that decision were provided on 8 January 2002 at the request of PRL. In due course the Minister’s decision on 27 April 2007 to refuse approval for the action (the additional mining) proposed by PRL was expressed to have effect for each of the provisions identified by Mr Early. That was also what the Department recommended at the time the decision was made.
27 It is worth noting, at this point, a defect in the decision of the Minister which was admitted during the course of the proceedings. When the Minister provided written reasons for his decision, the Statement of Reasons explained only why the decision had effect for ss 18/18A, 20/20A and 26/27A, the provisions accepted as relevant by PRL in its referral. Despite the failure to explain why the decision had been stated to have effect also for ss 16/17B and 23/24A, no amendment of the decision was made. The lack of justification for the decision having effect for those latter provisions was referred to in written submissions by PRL. That part of PRL’s written submissions drew no response until the hearing when, for the first time, it was conceded that to the extent that the decision was stated to have effect for ss 16/17B and 23/24A it could not be sustained.
28 That concession prompted an application by PRL for discovery, which I rejected (Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385). The concession also contributed to PRL’s change of position about the reliability of the Minister’s written Statement of Reasons. Evidence advanced by the respondent in answer to the application for discovery revealed an offer to consent to an order setting aside the decision to the extent that it was said to have effect for ss 16/17B and 23/24A. I will deal later with whether that would be an appropriate and sufficient response to the error which was somewhat belatedly admitted.
The environmental impact statement
29 Under the statutory scheme PRL’s proposal required initial assessment in one of five ways set out in ss 85 and 87(1) of the Act which provided:
‘85. Simplified outline of this Division
The following is a simplified outline of this Division:
| The Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action:
(a) an accredited assessment process; (b) an assessment on preliminary documentation; (c) a public environment report; (d) an environmental impact statement; (e) a public inquiry. |
…
87 Minister must decide on approach for assessment
Minister must choose one assessment approach
(1) The Minister must decide which one of the following approaches must be used for assessment of the relevant impacts of the action:
(a) assessment by an accredited assessment process;
(b) assessment on preliminary documentation under Division 4;
(c) assessment by public environment report under Division 5;
(d) assessment by environmental impact statement under Division 6;
(e) assessment by inquiry under Division 7.’
30 On 21 December 2001 a delegate of the Minister decided, under s 87 of the Act, that the proposed action should be assessed by environmental impact statement. That decision engaged the provisions of Division 6 of Part 8 of Chapter 4 of the Act. The Act then required (s 102) in the first instance, that ‘written guidelines for the content of a draft statement about the action and its relevant impacts’ be prepared. Draft guidelines dated January 2000 were issued for public comment. Final guidelines for the draft environmental impact statement, dated August 2002 were later published.
31 In accordance with s 103 of the Act, PRL provided a draft environmental impact statement to the Minister on 5 September 2002. Publication was approved by a delegate of the Minister on 23 September 2005. The draft environmental impact statement (and an erratum dealing with some printing errors) was made available for public review. PRL received 413 submissions about the draft environmental impact statement.
32 Section 104 required PRL to finalise the draft environmental impact statement, taking account of comments received and ‘give the finalised statement to the Minister’. Section 104(2) provided:
‘(2) The designated proponent may give the finalised statement to the Minister in the form of:
(a) a revised version of the draft statement; or
(b) the draft statement and a supplement to the draft statement.’
33 On 11 June 2006, PRL provided to the Department a draft of a supplement to the draft environmental impact statement addressing public comment in accordance with s 104 of the Act. The Department required further information. In the meantime, the Department had commissioned an independent report from Dr Libby Mattiske. The Department of Transport and Regional Services also commissioned a report from the Centre for Mined Land Rehabilitation. Those two reports were provided to the Department late in 2006 and then provided to PRL.
34 On 22 September 2006 an officer of the Department, Ms Dickman, wrote to PRL in the following terms:
‘I would like to take this opportunity to update you on progress of the assessment of the above controlled action.
You will no doubt be aware that two reports on aspects of the proposal have been commissioned by the Department of the Environment & Heritage (DEH), and the Department of Transport and Regional Services (DOTARS) respectively. I have received a draft copy of the ‘Independent Review of the Environmental Impact Statement (EIS)’ commissioned by DEH, and I’m currently reviewing it. I understand that the DOTARS report on the rehabilitation of mine sites is progressing, and a workshop on the matter is due to be scheduled soon.
Given the relevance of both reports in assessing your proposal, I am keen to get your comments on them prior to accepting your response to the matters raised in public submissions to the draft EIS. This will ensure that your comments can be taken into account in writing the assessment report on the proposal. At this stage I would expect to send you a copy of the final DEH report within the next two weeks.’
35 PRL provided a response to the draft report of Dr Mattiske and the draft report from the Centre for Mined Land Rehabilitation in October 2006. It was relatively short. It concluded in the following way:
‘Conclusion
PRL believes that there has been no information presented in either the CLMR or Mattiske report that has not already been discussed at length throughout the draft EIS. Whilst PRL strongly agrees that Christmas Island is unique and will need to be carefully managed into the future to preserve the ecological characteristics for which it is famous, nothing presented in either the Mattiske or CLMR report link the proposed new leases to significant long-term impacts on the Island’s ecological integrity or biodiversity.
PRL asserts that the socio-economic environment of Christmas Island is also unique. The phosphate resource is limited, and PRL has made the commitment not to apply for any more leases. A transition from an economy based on phosphate mining to a more diverse economy based on industries like eco-tourism is therefore necessary. Nevertheless, studies conducted as part of the draft EIS suggest that many on the Island feel tentative that an abrupt end to mining will leave their futures uncertain. A continuation of mining in the short to mid term will alleviate these concerns, and give Christmas Island the “breathing space” required to build upon the foundling tourism industry and other potential economic activities and move towards a more sustainable economic future for the Island’s residents.
The proposal we have set out in the draft EIS provides for a balanced outcome that will provide for a well managed continuation of mining, an orderly transition to a post mining economy and an increase in the size of Christmas Island National Park which will enhance the management of the Island’s biodiversity and threatening processes.’
36 On 27 October 2006 Ms Dickman wrote again seeking further information. Her letter said, in part:
‘The Department has reviewed the public submissions on the draft Environmental Impact Statement (EIS) of the above proposal, the Phosphate Resources Limited (PRL) response to those submissions, and your letter of 16 October 2006. As discussed, we have outlined the Department’s information requirements to finalise the supplementary EIS in the following attachment.’
37 The attachment to which she referred sought further specific information about the following matters: ‘Impacts of mining activity on species and habitat’; ‘Environmental record of Christmas Island Phosphate (trading as PRL)’; and ‘Decommissioning of facilities’. Apparently a response was provided, although it is not in evidence. There were further exchanges of correspondence during November 2006. On 21 November, 2006 Ms Dickman wrote advising PRL that the information provided ‘met the requirements of the finalised environmental impact statement required under s 104’ of the Act although, on 29 December 2006, PRL made further representations to Ms Dickman after receipt of an updated report by Dr Mattiske.
38 Although the Secretary’s assessment report and the Minister’s later written Statement of Reasons for decision referred frequently to the ‘draft’ environmental impact statement, in view of the fact that it was finalised as required by the Act, I shall refer to it as the environmental impact statement.
The Department’s Assessment Report
39 Finalisation of the environmental impact statement engaged an obligation on the Secretary of the Department under s 105 of the Act to provide an ‘assessment report’ to the Minister about PRL’s proposal. The assessment report required by s 105 was dated January 2007. It recommended against PRL’s proposal.
40 Section 136(2)(b) of the Act explicitly required the Minister to take account of the assessment report. The assessment report referred at an early stage to the environmental impact statement prepared by PRL as follows:
‘On 21 December 2001, a delegate for the Minister decided that the assessment approach would be by Environmental Impact Statement (EIS). From 14 December 2002[sic] to 22 March 2002, draft guidelines for the EIS were published for public comment. The final guidelines were accepted on 15 November 2002.
The proponent published the draft EIS as required under section 93(1)(a), on 18 November 2005, and invited public comments until 30 December 2005. Advertisements were placed in The Australian newspaper, and in English, Mandarin and Malay in the “Islander”. The proponent notified DEH that 413 public submissions were received, and provided copies and a summary of the comments.
The revised Supplementary Report, taking into account the comments received, was accepted by a delegate for the Minister on 21 November 2006.’
and:
‘PRL advertised the draft EIS on the mainland, locally in multiple languages, and conducted 2 public forums on Christmas Island. A total of 413 submissions were received. Submissions were made by current and former Island residents, scientists, wildlife experts, tourists, Australian and overseas residents, the Shire, commercial businesses, and the peak business body on Island. Most submissions opposed the proposal (approximately 75%), concentrating on the removal of primary rainforest for mining. The Christmas Island Chamber of Commerce, which represents the majority of businesses on the Island, supported PRL’s mining operation, however, it also voiced concern that PRL does not threaten Christmas Island’s unique natural biodiversity, or clear rainforest.
Other issues raised in the public submissions included:
• Loss of forest vegetation and soil, with a number of comments comparing mining on Christmas Island with that which occurred on Nauru;
• Habitat loss for EPBC listed and endemic species. Birds Australia in particular claimed that the listed Hawk-Owl and Goshawk would have an increased risk of extinction;
• The impacts upon water quality and volume, and the fauna of karst systems near and within the proposed mines;
• Dust impacts upon the natural environment. Dust produced by the dryers impacts on the forest below and the marine environment in Flying Fish Cove, and coral from stormwater runoff and silt; and
• The removal and destruction of the land crab populations.
Submissions in favour of the proposal concentrated on the socio-economic benefits for the Island. The Shire of Christmas Island stated the need to maintain and support the Island’s community “while steps are taken to diversify the Christmas Island economy in an environmentally sustainable manner.”’
41 Thereafter the assessment report described the proposed action, described the environment on and of Christmas Island (sometimes by reference to matters stated in the environmental impact statement) and then proceeded to make an assessment of impacts and mitigation measures; finally stating a number of conclusions. Those later sections of the assessment report referred frequently to the environmental impact statement, as well as to Dr Mattiske’s report and the report from the Centre for Mined Land Rehabilitation.
42 There can be no doubt that, in the assessment report, the environmental impact statement was treated as advancing, overall, a case for the proposed action. That case was moderated by the contents of the other reports. The purpose of the assessment report was clearly to provide the Minister with a recommendation that took account of all the available information. The information extended to the social impact of accepting or refusing the proposal. There was also a discussion of the principles of ecologically sustainable development. An extensive bibliography was included.
43 Amongst the important conclusions distilled from the discussion in the assessment report were the following:
‘PRL has stated in correspondence dated 2 November 2006 that it would not be making any more applications to mine on vacant land, and that the current mining proposal would only allow current operations to extend from 3-5 years, to up to 10 years. Approximately 2/3 (78) of the PRL fulltime workforce is 50 or more years of age. Therefore approval of the proposal would probably enable most of those workers to retire in their current jobs, although the mining industry on mainland Western Australia is currently experiencing a shortage of skilled workers.
On the information provided to date it is not possible to determine whether the proposal is economically sustainable, given the uncertainty about the costs and scope of decommissioning, although it would have short-term economic and social benefits for existing workers. However, the proposal would cause certain and significant irreversible environmental damage. Therefore, on balance, the proposal to continue short-term mining on Christmas Island at the cost of the high likelihood of further loss of rainforest habitat, and the consequent facilitation of the extinction of species, is inconsistent with the principles of ecologically sustainable development.’
and:
‘One of the principles of Ecologically Sustainable Development is that “the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making.” Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, it would be in the interests of the long term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed.’
(Emphasis added.)
44 Two matters should be mentioned as a further introduction to issues later discussed. First is the discussion of the environmental impact statement. There can be no doubt that the environmental impact statement was at the forefront of attention in the assessment report provided to the Minister by the Department, and that as a matter of substance the recommendation to the Minister which it contained proceeded from a consideration, and rejection, of the case made by PRL through the environment impact statement. On the other hand, the assessment report did not attempt any summary of the environmental impact statement. The references to it were for the purpose of advancing the analysis in the assessment report.
45 The second matter concerns the operation of the Act. Although each of the controlling provisions of the Act was mentioned, along with the matter each protected, there was no discussion, as such, of statutory prohibitions. In particular, there was no suggestion that approval of the proposal was prohibited by the Act for any reason. The conclusions and recommendation were reached, as the extract above shows, ‘on balance’.
PRL’S INITIAL ATTACKS ON THE DECISION
46 At the outset of the case, PRL accepted that the Minister’s reasons for decision were those stated in the written Statement of Reasons signed on 14 June 2007. By the end of the case PRL’s position had been significantly modified. It will be necessary to give further detailed attention to the reasons attributed to the Minister in the written Statement of Reasons, but it is possible to deal in a more general way with PRL’s original case in the light of the statutory scheme I have outlined. Initially the challenge to the Minister’s decision fell principally into six broad categories. In each category of suggested legal error the argument depended heavily on conclusions to be drawn from contested facts. In many cases the argument involved little more than debate about the soundness of conclusions expressed in the written Statement of Reasons. In some cases it depended upon a wrong view of the statutory scheme.
47 When PRL withdrew its acceptance that the Statement of Reasons represented the Minister’s actual reasons for decision, that removed the foundation of most of its original arguments, which were heavily dependent on debating the justification for, and accuracy of, various ‘findings’ expressed in the Statement of Reasons. Nevertheless, I shall explain why the matters which were originally relied upon did not, in my view, provide any basis for the relief which was sought.
Likely impacts
48 PRL contended that the Minister did not take into account, as the Act required, the ‘likely impacts’ of the action which it proposed on listed threatened species, listed migratory species and the environment on Commonwealth land.
49 Once a decision was made that the proposed action was a controlled action (s 75) and that the action should be assessed, in the first instance, by environmental impact statement (s 87) PRL was required to prepare an environmental impact statement that dealt with ‘the relevant impacts of the action’. Section 82(1) defined ‘relevant impacts’ in the following way:
‘(1) If the Minister has decided under Division 2 of Part 7 that an action is a controlled action, the relevant impacts of the action are the impacts that the action:
a. has or will have; or
b. is likely to have;
on the matter protected by each provision of Part 3 that the Minister has decided under that Division is a controlling provision for the action.’
(Bold in original)
50 Assessment of likely impacts was, therefore, a matter required to be addressed by the environmental impact statement. Under s 136(2) the Minister was required to take the environmental impact statement into account. The Act did not impose any further express or independent obligation upon the Minister to take likely impacts into account but it is clear he could not simply disregard them because he had an obligation to consider ‘matters relevant to any matter protected by a provision … that the Minister has decided is a controlling provision for the action’.
51 One way PRL sought to make good its contention that the Minister did not ‘consider likely impacts’ was to draw attention to passages in the Statement of Reasons which PRL contended were concerned only with the discussion of possibilities. The submission was highly selective and ignored the plain language of relevant parts of the Statement of Reasons. For so long as the Statement of Reasons was accepted as stating the Minister’s reasons for decision (as it was when these arguments were advanced) the argument was, in my view, without substance.
52 Another aspect of the argument was that the Minister did not give attention, as the Act required, to the likely effect on species as a whole but was diverted by an examination of the effect on individual members or populations of species. It is true that examination, in the various reports including the environmental impact statement, frequently began with the identification of known populations of particular species of flora and fauna and the likely effect on them of the proposed action but I am satisfied that, at least so far as the Statement of Reasons is concerned, the stated findings made about loss of habitat and other threats sufficiently concerned the endangered and critically endangered species as such that they cannot be dismissed as matters affecting only individual members or confined populations of the species. Once it is clear that attention was given to the effects and potential effects upon species the debate becomes one about whether the judgments made were correct or not. That is a different issue which does not involve a debate about legal error. I might, however, permit myself the observation that it is difficult to dismiss discussion of even individual populations of a critically endangered species upon the basis that it is remote from a discussion of the effect upon the species as a whole.
Significant impacts
53 It was argued that, for the purpose of the Minister’s decision, an impact was required to be established as a ‘significant impact’ in order for the Minister to act upon it. PRL contended that the Statement of Reasons demonstrated that the Minister had failed to apply the correct test (significant impact) but had used other, incorrect, tests. The notion of ‘significant impact’ was imported by PRL from the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A, and 26/27A) but in those provisions the concept of ‘significant impact’ had different work to do.
54 Under the statutory scheme, an action that ‘has or will have a significant impact’ in a relevant respect was one which might not be taken without approval. That was the matter to which all of the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A and 26/27A) were directed. When a decision was to be made whether a controlling provision was engaged by the action or proposed action it was only the adverse impacts, and not the beneficial impacts, which might be taken into account (s 75(2)). When the Minister came to consider whether or not to approve an action (ss 130 and 133) or to approve an action subject to conditions (s 134) the Minister was not directed to, or confined by, a consideration of ‘significant impacts’. The existence of such impacts was assumed. His consideration of whether or not to grant approval could, and should, take into account beneficial, as well as adverse, impacts and he was also expressly required to take into account economic and social matters (s 136(1)(b)). In my view, this line of argument was misconceived. It did not point to any failure to apply the correct statutory tests.
No evidence
55 PRL argued that the Minister had no evidence for many of the factual findings stated by the written Statement of Reasons.
56 In one way or another all the matters relied upon for the proposition that the Minister had no evidence for the findings set out in the Statement of Reasons were derived from the proposition that he either ignored or gave insufficient weight to the environmental impact statement. One variant of the argument (dealt with below) was that, although he was not legally obliged to personally read the environmental impact statement, any summary of it which was provided to him was misleading and inaccurate.
57 As earlier mentioned, the Statement of Reasons made frequent reference to the environmental impact statement. For so long as the Statement of Reasons was accepted as an explanation of the Minister’s reasons for decision it was impossible to successfully contend, as PRL attempted to do, that the environmental impact statement had been ignored altogether. On the other hand, if the environmental impact statement had been taken into account, PRL’s argument amounted simply to a contention that the representations in the environmental impact statement about a wide range of matters deserved more weight than they had been given or, in some cases, deserved acceptance rather than rejection. The argument was bolstered by a submission that the environmental impact statement should be regarded as the primary source of facts. That contention had no support in the statutory scheme. The environmental impact statement was an important, but only one, source of information. It had no presumptive weight, whether with regard to factual statements or value judgments.
58 The arguments advanced suggesting there was no evidence to support a range of findings really sought to invoke an impermissible review of the merit of those findings. For so long as the Statement of Reasons was accepted as stating the Minister’s reasons then, unless it could be shown independently that he did not, as he asserted, take into account the environmental impact statement, PRL’s argument really amounted to a contention that he should have given it greater weight. That is not an argument about legal error.
Precautionary principle
59 The fourth attack suggested that the Minister had failed to apply the ‘precautionary principle’ as required by the Act (s 391). Section 391(1) and (2) provide:
‘(1) the Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.
(2) The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.’
(Bold in original)
60 The decision was one to which the precautionary principle applied. The precautionary principle was also incorporated in the principles of ecologically sustainable development (see s 3A(b)). PRL’s submission was to the effect that although the Minister referred to the principle he made no finding that, in any area under consideration, there was a ‘lack of full scientific certainty’. This submission did not accord with the operation of s 391. The Minister was directed not to delay action to protect the environment if there was a lack of full scientific certainty. He did not do so. In my view, there was no substance in the argument.
Natural justice
61 Fifthly, PRL argued it was denied natural justice. It said it should have been provided with a copy of the Secretary’s assessment report made under s 105. Section 105(2) obliged the Secretary to provide a copy of the report to PRL if asked for it. It was conceded that no such request was made. The submission was untenable. It was also argued that PRL was misled by statements attributed to a former Minister, Senator Campbell, that reassured PRL that there would be an opportunity for further submissions if there was any concern about the environmental impact statement. Neither the evidence specifically relied upon (a letter from PRL attributing remarks to Senator Campbell), nor the evidence generally, supported the factual foundation for this assertion. It also had no substance.
Incomplete and misleading summary
62 The remaining matter raised, although not very persuasively at first in light of PRL’s acceptance that the Minister’s reasons were those set out in the written Statement of Reasons, was the suggestion that the Minister had not taken the environmental impact statement into account as required by the Act but, instead, had relied inappropriately on a Departmental summary which was misleading and inaccurate.
63 The argument was supplementary to the argument suggesting the Minister acted without evidence. This variant suggested that the assessment report was the summary relied upon and it was an inaccurate summary. The argument mistook, and misstated, the effect of the assessment report, which did not, in any event, purport to be a summary of the environmental impact statement. Under the Act, the assessment report was required to be taken into account in its own right (s 136(2)). So far as it suggested conclusions which departed from the representations in the environmental impact statement that was because the Department did not share the views advanced by PRL, not because it was a misleading summary.
64 Some of the argument about the assessment report descended into a debate about whether it was correct to attribute responsibility to PRL for remediation of past mining activities. It was alleged that attribution of responsibility in that respect demonstrated incorrect findings of fact and that therefore irrelevant matters were taken into account. The matters referred to did not involve findings of fact at all. They involved opinions and judgments about who should bear the financial burden for past damage and final decommissioning of plant. Such matters were not within the scope of the present proceedings which are concerned only with the identification of legal error and not a debate about the merits of the Minister’s decision, much less about who does, or should, carry present responsibility for the environmental damage done in the past.
PRL’S CHANGE OF POSITION
65 A major plank in PRL’s challenge to the Minister’s decision was, at all times, the contention that an inference should be drawn that the Minister did not, as he was required by the Act to do, take account of the environmental impact statement. For so long as PRL accepted that the Statement of Reasons was a reliable statement of the actual reasons for the Minister’s decision, the contention faced almost insuperable difficulties as the Statement of Reasons referred in a number of places to the environmental impact statement and the case presented by it. During an adjournment, before submissions for the respondent were complete, PRL changed its position. As a result of the concession made by counsel for the respondent, during her oral submissions, that aspects of the decision could not be supported (namely, that the decision had effect for ss 16/17B and 23/24A) and the suggestion that they had been included in error, PRL during the adjournment filed a notice of motion seeking discovery and other orders.
66 PRL then led evidence, in support of the notice of motion, without relevant objection, that after the respondent’s concession it had reviewed its position. PRL’s submissions in relation to the notice of motion made it clear that it no longer necessarily accepted, as it had earlier, ‘that the reasons for the Decision are set out in the Statement of Reasons’. The concession by the respondent has some significance in its own right as I will later indicate. Its significance for the change in PRL’s position was, however, that it suggested to PRL’s legal advisers, apparently for the first time, that there were reasons to doubt whether the written Statement of Reasons could be adequately reconciled with the advice and explanations which were, on the evidence, before the Minister at the time he made his decision.
67 PRL’s change of position was a significant one. As the case did not proceed on the basis of pleadings there was no formal barrier to PRL’s change of position. I decided the parties should have a further opportunity to deal with that issue.
68 In further written submissions PRL confirmed that it no longer accepted the Statement of Reasons. It said:
‘3 The applicant now submits that the Statement of Reasons does not set out the reasons of the Minister at the time he made the Decision. Earlier submissions, to the extent that they rely on the Statement of Reasons, are now put in the alternative.’
69 Apart from the challenges originally advanced, the issues which arose from, or were refocussed by, PRL’s change of position may be summarised as follows:
- was the Minister correctly advised, before he made his decision on 27 April 2007, about the matters he was required to take into account?;
- what weight, if any, should be given to the written Statement of Reasons upon a consideration of the whole of the evidence?;
- should it be concluded that the Minister took into account the environmental impact statement prepared by PRL?;
- what is the significance of the fact that aspects of the decision were admittedly not sustainable?
THE DECISION-MAKING PROCESS
70 I will need to deal later, in the course of discussion about this subject, with the affidavit sworn by Mr Early on 6 August 2008. In that affidavit, Mr Early described the processes followed within the Department to submit matters for consideration and decision by the Minister and identified a number of ‘errors’ in material supplied to the Minister before he made his decision on 27 April 2007. Before I give his evidence about those matters further attention, I propose to deal with the material by reference to its own terms. Then I will return to Mr Early’s explanations when a fuller context is available.
The first Ministerial brief
71 On 2 February 2007 Mr Early sent a brief to the Minister recommending that, in the first instance, he ‘propose to refuse approval’ for the proposal. That interim step was required because before he made a decision it was necessary, under s 131 of the Act, that the Minister inform other Ministers, whose portfolio responsibilities might be affected, of his proposed decision and invite their comments. Under s 136 such comments had to be taken into account also when making the decision.
72 The Minister who made the decision under challenge, Mr Turnbull, assumed his responsibilities on 23 January 2007. The first evidence of any provision to him of material relating to the proposal by PRL was the brief from Mr Early dated 2 February 2007. The brief to the Minister gave only short reasons for the Department’s recommendation that he reject the proposal. It referred to PRL’s environmental impact statement, the report of the Centre for Mined Land Rehabilitation, Dr Mattiske’s report, PRL’s responses to that report, additional information provided by PRL and the Department’s own assessment report. It should be set out in full. The brief said (omitting formal parts):
‘Recommendations:
We recommend that you:
2. consider your legal obligations for
decision-making at Attachment A. 1. Noted / Please discuss
3. propose to refuse approval, as
reflected in the proposed decision
at Attachment B. 2. Agreed / Not agreed
4. sign the letters at Attachment C to
the Prime Minister and Ministerial
colleagues in relation to the proposed
decision. 3. Signed / Not signed
MINISTER
14/2/2007
Key Issues;
• Phosphate Resources Limited (PRL) initially proposed to expand phosphate mining by 403.7 hectares over nine sites of vacant Crown land on Christmas Island. PRL subsequently revised the proposal to 256.3 hectares over eight sites. The proposal has been assessed under the environment Protection and Biodiversity Conservation Act 1999 (the ‘EPBC’ Act). It is controversial locally, nationally and has also gained international attention. More than 400 submissions were made during the public comment period, of which more than 75 per cent opposed the proposal.
• The proposal includes the clearing of 197.3 hectares of (primary) evergreen closed tall rainforest. A moratorium on rainforest clearing for mining was declared on Christmas Island in 1988, and current leases issued in 1990 and 1998 (expiring in 2019) specifically prohibit the clearance, degradation or damage of any primary rainforest, restricting mining activities to previously mined areas.
• Christmas Island contains a large number of endemic species (ie found only on Christmas Island), and 16 threatened and migratory species listed under the EPBC Act. The proposal to clear primary rainforest would directly impact 11 of these species. It would also inhibit the annual Christmas Island Red Crab migration, important for the maintenance of the Christmas Island rainforest ecosystem.
• There are long-term environmental impacts from mining on the integrity of the Christmas Island ecosystem. The independent review of mined land rehabilitation (Attachment D) found that of the approximately 3,000 hectares of previously mined land, 220 hectares have been rehabilitated. Due to the finite reserves of topsoil available, only 14% of the remaining 2,780 hectares may ever have scope for rehabilitation back to rainforest.
• PRL proposes to replace the original closed forest with another vegetation type. This would result in the permanent loss of 6% of the remaining closed canopy rainforest. PRL’s rehabilitation programme does not intend to progress to secondary or primary rainforest.
• The Department is concerned that phosphate mining on the proposed leases would impact upon various matters protected under the EPBC Act. In addition to the loss of primary rainforest and the general concerns about rehabilitation, there would be impacts on native vegetation and listed flora through edge effects (ie making a longer boundary for the remaining intact areas); loss of habitat for native, endemic and listed mammals, birds, and crabs; and a likely spread of introduced flora and fauna that may prey upon, compete with, or displace native species.
• Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, the Department considers it would be in the interests of the long-term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed.
• Independent analysis (Attachment E) has suggested that the clearing of primary rainforest for further mining is likely to contribute to the extinction of a number of listed threatened and migratory species in the long term. PRL was given a copy of the report and responded to the issues raised (Attachment F). In essence, PRL disputes that the report provides any new information that had not been adequately addressed in the draft environmental impact statement (Attachment G) or in additional information provided by PRL (Attachment H). In particular, PRL disputes there is any evidence to suggest that well managed semi-deciduous mesophyll vine forest (as proposed in its rehabilitation plans) would necessarily be less diverse than closed evergreen rainforest. The Department notes that even the success of the more limited rehabilitation proposed by PRL is not guaranteed.
• The Department believes that, based on the information provided by PRL, a decision to approve the proposal would be inconsistent with Australia’s obligations under international treaties, and recovery plans for listed threatened and migratory species (Attachment A). Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment J).
Handling:
• You are required to make a decision on whether or not to approve the proposal by 20 February 2007. The assessment report prepared by the Department (Attachment I) recommends that you reject the proposal.
• Under PRL’s currently approved leases, the Department understands there are phosphate reserves for a further five years mining. The Department of Transport and Regional Services (DOTARS) has actively lobbied this Department for EPBC approval of the proposal on economic and social grounds. DOTARS and PRL believe that 10 years is needed to transition workers into new economically viable employment, or to reach retirement age. DOTARS has been aware since August 2001, however, that this Department has had grave reservations about the acceptability of the proposal.
• While the continued operation of the mining company is seen by some as a substantial contributor to the ongoing viability of Christmas Island, the further loss of rainforest may impact adversely on future business options for the Island, including eco-tourism. The economic benefit of the proposed additional mining may also be significantly outweighed by the true cot of proper rehabilitation.
• You have a legal obligation under section 131 to consult with the Minister for Transport and Regional Services and the Minister for Local Government, Territories and Roads on your decision, and given the broad Government interest in the future of the Island, you may wish to consult with the Prime Minister. Draft letters for your consideration are at Attachment C.
Background:
• Over sixty percent of Christmas Island is under formal protection through the Christmas Island National Park. The Park contains the last remaining nesting habitat in the world for the EPBC listed endangered Abbott’s booby. It also supports the world’s largest remaining Robber crab population, and probably contains the largest and most diverse land crab community anywhere. The World Wildlife Fund, the Duke of Edinburgh and Sir David Attenborough have written to the Australian Government about the impacts of phosphate mining upon the higher number of endemic and iconic species, such as land crabs on Christmas Island. The Island has been referred to as Australia’s “Galapagos Island”.
• On 14 November 2001, the Assistant Secretary, Environmental Assessment Branch, as your delegate, decided that the above action is a controlled action. The controlling provisions are:
Section 16 and 17B (Wetlands of international importance);
Sections 18 and 18A (Listed threatened species and communities);
Sections 20 and 20A (Listed migratory species);
Sections 23 and 24A (Marine environment); and
Sections 26 and 27A (Protection of the environment from actions involving Commonwealth land).
Legal and Technical Issues:
• Your legal obligations on decision-making under Part 9 of the EPBC Act are set out at Attachment A together with additional material relevant to this action. Based on this information and the other material presented in this brief, we have prepared a draft refusal decision at Attachment B.’
(Emphasis added).
73 The outcomes of the recommendations (as the emphasis shows) were: 1. - Noted; 2. – Agreed; and 3. – Signed. The Minister’s signature appeared thereunder, with a date ‘14/2/2007’. The ‘draft refusal decision’ was not relevantly distinguishable from the decision signed on 27 April 2007. It contained the same (admittedly unsustainable) references to ss 16/17B and 23/24A of the Act. Both documents were entitled (incorrectly) ‘Decision to Approve the Taking of an Action’. Adoption by the Minister of these errors on 14 February 2007, and later on 27 April 2007, is a strong indicator, apart from his formal endorsement of the recommendations, that he acted on, and relied upon, the advice to him and the reflection of that advice in the formal instrument executed by him. It should be noted, for later reference, that the brief signed by Mr Early contained a clear statement that all five sets of controlling provisions were engaged in relation to the matters before the Minister for his decision.
74 Three further particular matters should also be noted about the nature of the decisions which the Minister was asked to make on 2 February 2007. First, he was obliged to consult with some Ministerial colleagues before making a final decision. It was for that reason it was recommended (and he agreed) that he ‘propose to refuse approval’. Secondly, he was advised that it was the Department’s view that approval of the proposal would be ‘inconsistent with’ (presumably therefore prohibited by) the Act although, as noted earlier, there was no such conclusion stated in the assessment report and there was no detailed case to that effect argued in the brief. Thirdly, the Minister’s attention was drawn directly to his ‘legal obligations’ in connection with the decision to be made. That was done in recommendation 1 which the Minister noted. It also appeared in the brief in the final passage emphasised. The detailed obligations were set out in Attachment A.
75 Attachment A was not a very satisfactory document. It betrayed a lack of care. In addition, attachments to which it referred were not given the same designation (e.g. G, H, etc) as the brief itself. The draft environmental impact statement was described as Attachment F, whereas in the brief it was referred to as Attachment G. The assessment report by the Department was referred to in the brief as Attachment I but in Attachment A was referred to as Attachment G. Attachment A identified the matters the Minister was obliged to consider under s 136(1) of the Act and set out a number of factors to be taken into account as follows:
‘Mandatory Considerations
In accordance with Section 136 the Minister must consider the following, so far as they are not inconsistent with any other requirement of Subdivision B, Division 1 of Part 9 of the EPBC Act:
(a) matters relevant to any matter protected by the controlling provisions:
• See Assessment Report at Attachment G, and independent analysis report at Attachment E.
(b) economic and social matters:
• Information on economic and social matters was obtained from the Environmental Impact Statement and public comment submissions – phosphate mining is the major economic activity on the island, contributing approximately $10 million annually to employees. Phosphate Resources Limited (PRL) states that it contributes approximately $7.5 million to the Australian economy through taxes, royalties and levies. The company employs 127 permanent and 76 casual staff, comprising approximately 19% of the Island’s workforce. It constitutes 16% of the islands annual economy.
• Preliminary costing of the total demolition of all infrastructure was undertaken by consultants in 2005/6 for PRL, who stated that provision of $5 568 000 has been made in their current accounts for this purpose. A guarantee of $1 million has been provided to the Commonwealth for demolition by the company for the existing lease. However, total cost of rehabilitation of land, and the ongoing long-term costs of managing weeds on mined land, is unknown.
• The proposal is supported by the Department of Transport and Regional Services (DOTARS) on economic and social grounds. That Department claims it needs 10 years to transition workers into new economically viable employment or to reach retirement age, although DOTARS has been cognisant since August 2001 that the Department has “grave reservations” about the acceptability of the proposal.
• The WA Indian Ocean Territories Environmental Performance audit found that “Christmas Island Phosphates represents a medium to high risk to the environment and the health and welfare, convenience, comfort or amenity of the community due to air emissions from their site, conveyance system and loading operations”.
Factors to be taken into account
In considering those matters, the Minister must take into account:
(a) the principles of ecologically sustainable development (set out in Section 3A of the EPBC Act);
• The Independent Review (Mattiske 2006) notes that there is a high likelihood that several species will become extinct from the Island within the net 25 years unless biodiversity conservation strategies are adopted (Attachment E).
• The independent review on mined land rehabilitation (Attachment D) found that of the approximately 3000ha of previously mined land, 220ha have been rehabilitated. Due to the finite reserves of topsoil available, only 400ha of the remaining 2780ha will be able to be rehabilitated back to rainforest. The proposal for further mining recognises that it will result in the permanent loss of more primary rainforest.
• The proposal to continue short-term mining on Christmas Island at the cost of the high likelihood of further loss of rainforest habitat, and the consequent facilitation of the extinction of species, is inconsistent with the principles of ecologically sustainable development.
(b) the assessment report relating to the action;
• See Attachment G.
(c) if the action was assessed under Division 5 or 6 of part 8 – the report or statement about the action finalised by the designated proponent;
• N/A
(d) if an inquiry was conducted under Division 7 of Part 8 in relation to the action, the report of the commissioners;
• N/A
(e) any other information the Minister has on the relevant impacts of the action; and
(f) any relevant comments given to the Minister by another Minister in accordance with an invitation under section 131.
• The letter to the Prime Minister (Attachment C) inviting comments from relevant Ministers through the Cabinet process.’
(Emphasis added.)
76 The passages I have emphasised reveal two errors – one important, the other less so. Attachment A indicated, contrary to the Act, that there was no applicable factor to be considered arising from an environmental impact statement. This effectively dismissed as irrelevant a mandatory statutory factor to be taken into account. Later, Attachment A said:
‘Minister not to consider other matters
In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted, by Subdivision B, Division 1, Part 9 of the EPBC Act, to consider.’
In effect, the Minister was told he did not need to take the environmental impact statement into account and should not do so.
77 The second, less important, error is disclosed by the final passage emphasised. It was contradicted by the brief itself which proposed that the Minister sign individual letters to his Ministerial colleagues (as he did) rather than consult them ‘through the Cabinet process’.
78 Attachment A also referred to, but did not discuss the effect of, ss 138 – 140 of the Act and the separate statutory prohibitions there contained on proposals which were inconsistent with obligations under international treaties or recovery plans for listed threatened and migratory species. I shall discuss this issue separately. It is enough to record, at the moment, that no effective case was made to support the opinion stated in Mr Early’s brief that approval of the proposal was, for that reason, prohibited.
79 The summary of the Minister’s legal obligations was erroneous. It was contrary to the Act. I do not doubt that those errors were the product of carelessness at some level. They may not reveal any misunderstanding by Mr Early, for example, of the need for the Minister to have taken into account the environmental impact statement. However, as at 14 February 2007, what may fairly be concluded is that, although the environmental impact statement was one of a number of attachments to the Ministerial brief, the Minister was told by Attachment A that an assessment under Division 6 of Part 1 of the Act (i.e. by environmental impact statement) was not applicable to the decision he should in due course make, a draft of which was attached for his approval in principle. There was no evidence of any oral advice to the Minister, then or later (before the decision was taken), inconsistent with the written brief.
An error in the earlier judgment
80 As I earlier explained, when PRL’s position changed during the course of oral submissions it sought additional interlocutory orders. They were refused (Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385) but the refusal was based in part, on an erroneous view of the content and effect of the first brief.
81 One reason (although not the only one) for refusing the orders sought was expressed as follows (at [7]):
‘The application for discovery and inspection, which is contained within proposed orders 1 and 2, depends largely on a suggestion that the Minister may not have paid any regard to an environmental impact statement which he was required to consider under the Act. Exhibit 7 in the proceedings contains a brief provided to the Minister on 2 February 2007. That brief recommended to the Minister, amongst other things, that he consider his legal obligations for decision making as set out in an attachment, marked A, that he propose to refuse approval for the operations sought by the applicant and that he advise certain Ministerial colleagues of that proposal and seek their response. Attachment A drew the Minister’s attention to mandatory considerations, with respect to the decision which he would be required to take, and factors which he should take into account in that respect. His attention was drawn expressly in more than one place to an attachment G which contained the environmental impact statement in question.’
(Emphasis added.)
82 In that earlier judgment I mistakenly thought that Attachment A to the brief to the Minister dated 2 February 2007 (which advised him of the legal requirements concerning the decision to be made by him) specifically drew his attention to the environmental impact statement prepared by PRL. I did so because Attachment A advised the Minister that ‘Attachment G’ was relevant to mandatory considerations for his attention. However, the Attachment G referred to in Attachment A was not the environmental impact statement (in fact Attachment F to Attachment A) but the assessment report prepared under s 105 (which was identified as Attachment I to the brief). As earlier discussed, Attachment A to the brief did not draw the Minister’s attention to the environmental impact statement but, on the contrary told him that such a statement was ‘N/A’ (not applicable).
83 Although I accept without reservation my own share of the responsibility for not detecting the differences and incongruity between the brief to the Minister and Attachment A to the brief at the time of the earlier judgment, the following should also be noted:
(a) Mr Early’s first affidavit, to which the documents were attached, drew no attention to the discrepancies or offered any explanation for the erroneous information to the Minister to the effect that an environmental impact statement was not applicable to his decision.
(b) Neither an affidavit filed in support of the notice of motion or any submission of PRL, written or oral, drew attention to the discrepancies.
(c) Neither an affidavit filed in opposition to the notice of motion or any submission of the respondent, written or oral, drew attention to the discrepancies.
84 When the true position became clear to me, as a result of my own study of the material, a further opportunity was afforded to the parties to give consideration to the error in the earlier judgment. PRL’s change of position, that it did not accept the written Statement of Reasons as reliable, also took on added significance in the light of the advice to the Minister in the first brief that an environmental impact statement was not a relevant factor to take into account. Although PRL had not earlier drawn attention to it, the content of that advice is not easily reconciled with the assertions made in the written Statement of Reasons. The parties were asked to consider whether further evidence or submissions were necessary.
The second Ministerial brief
85 On 19 April 2007 the Acting Assistant Secretary of the Environment Assessment Branch, Mr Kahn, sent another brief to the Minister. Again this brief should be set out in full. It said (excluding formal parts):
‘Timing:
The statutory timeframe for your decision was 20 February 2007, however, as a result of consultation with your Commonwealth colleagues we have delayed submitting the decision for your final consideration until the completion of the Governor General’s tour of Christmas Island on 5 March 2007.
Purpose:
You are required to make a decision to refuse or approve, for the purposes of a controlling provision, the taking of an action under Part 9 of the Environment Protection and Biodiversity conservation Act 1999 (the EPBC Act).
Background:
• On 14 February 2007 you agreed to a brief recommending the draft decision to refuse the above proposal. That brief outlined your legal obligations in making your decision under the EPBC Act (Attachment A), and had a copy of the Department’s assessment report. Given the magnitude of impacts on the matters of national environmental significance outlined in that brief, and the legislative requirement that you must not act inconsistently with the relevant environmental international conventions, the Department recommended that you refuse the proposal.
• In making the above draft decision, you also wrote to the Minister for Transport and Regional Services, and the Minister for Local Government, Territories and Roads, as required under section 131 of the EPBC Act. You also wrote to the Prime Minister advising him of your proposed decision. The Minister for Local Government, Territories and Roads, the Hon Jim Lloyd MP, and the Minister for Transport and Regional Services, the Hon Mark Vaile MP, responded to your letter (Attachment B). The Prime Minister and has not replied.’
Issues/Sensitivities
• Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, the Department considers it would be in the interests of the long-term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed. In signing the draft approval brief at Attachment A, you considered the impacts of mining on Christmas Island ecosystems, as outlined under the key issues heading.
• The Minister for Local Government, Territories and Road, the Hon Jim Lloyd MP, notes the need to shift the economic reliance of Christmas Island from mining however he is concerned about the reaction of the mining company and the community to your decision.
• Minister Lloyd is seeking your support with the development of the Government’s strategy to transition the Island’s economic future. Depending on the intentions of the mining company he may seek your early support to obtain the agreement of senior Ministers to make an announcement indicating the Government commitment to the future of the Island. He has also indicated he will seek your support for a joint Cabinet submission to follow the release of the Commonwealth Grants Commission report on funding required for the Indian Ocean Territories in October 2007. A letter (Attachment E) has been drafted replying to Minister Lloyd agreeing to support his proposed approach.
• Parks Australia, will take the lead on the interests of your Department in the development of a strategy for Ministers’ consideration in October 2007. Parks Australia North is actively engaged on the Island and has responsibility for managing existing rehabilitation arrangements under a memorandum of understanding with the Department of Transport and Regional Services.
• A campaign is currently underway supporting the refusal of the release of new areas of land for phosphate mining on Christmas Island. A refusal decision is therefore likely to be supported by environmentalists. However, miners on the Island would be expected to respond adversely.
• A refusal decision does not set a precedent for other EPBC proposals. On three other proposals have been refused under the EPBC Act to date, not counting the Bald Hills wind farm that was subsequently approved. Each proposal is considered on its merits, and ecologically sustainable developments would still be expected to be approved.
• In discussion with the Department of Prime Minister and Cabinet we have been advised that the Prime Minister may wish to write to HRH the Duke of Edinburgh informing him that the Australian Government is not allowing further mining on the Island. His Royal Highness has taken an active interest in the environmental protection of Christmas Island.
• An instrument for the refusal of the action is provided at Attachment C. No information has been provided to support the reconsideration of your draft refusal decision since you considered the proposal on 14 February 2007.
• Given the public interest in your decision, a media release and briefing notes are provided at Attachment F.
Recommendations
1. Note the brief and assessment report
at Attachment A 1. Noted / Please discuss
2. Note the letter from the Minister of
Local Government, Territories and Roads
and the Minister for Transport and Regional
Services at Attachment B 2. Noted / Please discuss
3. Refuse the proposed action by signing
The decision instrument at Attachment C 3. Signed / Not signed
4. Sign the letter at Attachment D informing
PRL of your decision 4. Signed / Not signed
5. Sign the letter at Attachment E to the Hon
Jim Lloyd, Minister for Local Government 5. Signed / Not signed
Territories and Roads, copying the Prime
Minister, supporting his approach to
Developing a transition strategy for
Christmas Island.
6. Issue the media release at Attachment F 6. Agreed/Please discuss’
Attachments:
A Draft decision brief and Assessment Report
B Letterfrom the Minister of Local Government, Territories and Roads
C Refusal decision instrument
D Letter of decision to PRL and consultants
E Letter to the Minister of Local Government, Territories and Road
F Media release and media briefing notes’
(Emphasis added.)
86 The recommendations were endorsed: 1 – Noted; 2 – Noted; 3 – Signed; 4 – Signed; 5 – Signed; and 6 – Agreed and were signed by the Minister and dated 27/4/2007.
87 Attachment A to the second brief was not the same as Attachment A to the first brief. Rather, it consisted of copies of the first brief and the assessment report, each of which recommended refusal of approval. Reference was again made in the second brief to the requirement to comply with international obligations. No reference was made to the environmental impact statement. The decision to be made was Attachment C. It was signed, therefore, in circumstances where the Minister was reminded only about the earlier advice to him from the Department, which was attached again – i.e. the first brief and also the assessment report.
88 A further issue arises potentially from the content of the second brief if it is accepted as a faithful part of the record of the decision-making process. The second brief recorded that the Minister’s earlier consideration of the impacts of the proposal proceeded ‘as outlined under the key issue heading’. That statement casts doubt on whether the Minister, before 14 February 2007, ever considered for himself the assessment report, rather than the summary in the brief. The only evidence that he did so are statements which appear in the later written Statement of Reasons. However, PRL made no argument to this effect and the possibility may be put aside.
The written record up to 27 April 2007
89 In the present case, s 136(2) required the Minister to take into account at least three particular matters when considering the issues raised by s 136(1) (i.e. matters relevant to protected matters and social and economic matters): the principles of ecologically sustainable development; the assessment report prepared by the Department; and the environmental impact statement finalised by PRL. There was no contention by PRL that the Minister did not take into account the principles of ecologically sustainable development or the assessment report. The Minister was expressly advised by Attachment A to the first brief that he was required to take these into account. He was also told by Attachment A that Dr Mattiske’s report was relevant to matters under s 136(1) and was to be taken into account under s 136(2) in considering the principles of ecologically sustainable development. The report by the Centre for Mined Land Rehabilitation was also identified as a matter to be taken into account in relation to the principles of ecologically sustainable development. There can be no doubt, therefore, that the Minister was advised, and noted, the requirement to take into account the principles of ecologically sustainable development, the assessment report, Dr Mattiske’s report and the report by the Centre for Mined Land Rehabilitation. PRL’s case was that the Minister did not take into account the environmental impact statement. As I have said a number of times, for so long as PRL accepted that the written Statement of Reasons, signed by the Minister and provided on 14 June 2007, was a reliable statement of the Minister’s reasons for the decision he made on 27 April 2007 its case to that effect faced very great obstacles. Once PRL withdrew its acceptance that the written Statement of Reasons was a true statement of reasons the argument came into focus.
90 The factors that suggest that the Minister took into account the environmental impact statement finalised by PRL are: it made the principal case for approval; it was an attachment to the first brief; it was referred to in Attachment A; it was discussed in the assessment report. It was also later mentioned a number of times in the written Statement of Reasons for decision, which requires separate consideration. The factors that suggest (as at 27 April 2007, when the decision was made) that it might not have been taken into account are: neither brief nor the assessment report advanced any summary of the environmental impact statement; the Minister was not told he should read it or otherwise take it into account; although Attachment A to the first brief referred to it as one source of information about social and economic matters it did not say (as the Act did) that it was required to be taken into account in its own right; the first brief, through Attachment A, told the Minister (expressly in connection with the legal requirements applying to his decision) that an environmental impact statement was not a factor to be taken into account; the Minister was told by Attachment A that he should not take into account matters he was not required to consider.
Ministerial decision-making
91 In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (‘Peko-Wallsend’) Gibbs CJ said (at 30-31):
‘Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.’
92 Brennan J (with whom Deane J was in general agreement) said, to similar effect (at 65-66):
‘The Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister’s appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.’
93 Brennan J cited the following passage from Bushell v Environment Secretary [1981] AC 75 (per Diplock LJ at 95):
‘To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.’
94 Earlier, Deane J sitting as a member of this Court in Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363 said (at 372-3):
‘… the Minister was, in my view, fully entitled to decide to accept and adopt the report and recommendations of the Committee without examining for himself the evidence and the factual material upon which that report and those recommendations were based. He was also, as I see the matter, entitled to accept, as the basis for his decision, particular conclusions and recommendations of the Committee established to inquire into, and report upon applications for increases in fees.’
95 The consequence of the approach which these passages exemplify is that a Minister is not obliged to attempt personal detailed analysis of matters which, in some cases, may require a high level of expertise, as they did in the present case. He is entitled to rely upon the advice and analysis of officers of his department. That is so whether expressly permitted by statute or not. In the present case the Minister was also expressly directed to take into account, amongst other things, the assessment report prepared by the Department. However, when a Minister relies upon advice, as he is entitled to do, and the advice is materially inadequate or misleading, any such failing may introduce legal error into the Minister’s decision. Whether it does so will depend upon the significance of the error or omission in the advice tendered.
96 As Brennan J said in Peko-Wallsend (at 61):
‘A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.’
97 The decision under challenge in the present case was made by the Minister himself. A number of other decisions were made by officers of the Department, although under the Act they were nominally entrusted to the Minister. For example, on 14 November 2001 Mr Early decided, pursuant to s 75 of the Act, that the proposal by PRL was a controlled action. In reasons for that decision, which were published by him on 8 January 2002, he described himself as ‘a delegate for the purposes of section 75’ of the Act. Similarly, on 21 December 2001, Ms Parsons, who described herself as a delegate of the Minister, decided under s 87 of the Act that the proposed action should be assessed by environmental impact statement.
98 Section 515 of the Act expressly permitted delegation of their respective functions by the Minister, the Secretary and the Director of National Parks. The power of delegation was unconfined. That is an important circumstance to bear in mind when considering the effect of some of the authorities. Section 515 provided:
‘(1) The Minister may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Minister.
(2) The Secretary may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Secretary.
(3) The Director may, by sealed instrument, delegate all or any of the Director’s powers or functions under this Act to a person. The delegate is, in the exercise of a delegated power or function, subject to the directions of the Director.’
99 There is no basis, therefore, for any contention that the decision in the present case was required, under the Act, to be made personally by the Minister or was ‘non-delegable’.
100 A number of cases have emphasised the quality of attention required when a Minister is required to decide a matter personally. A requirement of that kind may arise because a statute expressly excludes any power of delegation or it may arise from the nature and importance of the decision or, perhaps, the context in which it is to be made.
101 For example, in Tickner v Chapman (1995) 57 FCR 451 (‘Tickner’) the Court viewed as important the fact that the powers and functions of the relevant Minister under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) were specifically excluded from the power of delegation conferred by s 31(1) of that Act (see per Black CJ at 462, per Burchett J at 476 and per Kiefel J at 493; see also Minister for Aboriginal and Torres Strait Island Affairs v State of Western Australian (1996) 67 FCR 40 at 60). That statutory context did not apply in the present case but, as Mason J pointed out in Peko-Wallsend (at 38-39), the importance of a matter to be decided may, in its statutory setting, suggest that a particular decision is to be made by a Minister personally. One circumstance which might require a personal decision by a Minister is when the decision to be made involves review of a decision of the permanent head of a department (see e.g. Sean Investments at 369). In the present case the Minister was required to take into account an assessment report by the Secretary but, as already noted, the Secretary’s function was able to be delegated and clearly was. The assessment report was prepared by the Environment Assessment Branch of the Wildlife Division of the Department.
102 There is therefore no basis to conclude, in the present case, that the decision was, by its character either, one to be made personally, or was non-delegable, and that therefore the general principles stated in Peko-Wallsend either did not apply or required supplementation by some stricter test. The position was not confined, for example, by the stricter test posed by Kiefel J in Tickner (at 495-6) as follows:
‘To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.’
103 However, the decision taken by the Minister was required to be an informed decision. Furthermore, the Act required that it be informed in certain specified ways and that particular matters and documents be taken into account. Any advice to the Minister about the matters he was required to take into account had to be accurate. Any summary of those matters had to be relevantly accurate and complete.
Conclusions about the written record up to 27 April 2007
104 So far I have not taken into account the assertions made in the written Statement of Reasons signed by the Minister on 14 June 2007. Before turning to the significance of that document I propose to state my conclusions about the evidence concerning the decision making process up to the point at which the Minister’s decision was actually made. Then it will be necessary to turn attention to the written Statement of Reasons and decide what weight and significance should be accorded to it when it indicates (as it does in various ways) that the Minister took into account the environmental impact statement. I shall also need to deal with some matters arising from the further evidence that PRL’s change of position prompted.
105 The strongest indicators, up to 27 April 2007, that the environmental impact statement might have been ‘taken into account’ by the Minister when he made his decision are, as earlier indicated, that it was an attachment to the first brief, it was referred to in Attachment A to the first brief as a source of information on social and economic matters and it was discussed in the assessment report.
106 Although it was attached to the first brief the Minister was told it was not applicable. It was not suggested that he read it or give it any attention. In my view it is not possible to conclude from its attachment that it was taken into account. The reference to it in Attachment A as a source of information takes the matter no further. It was Attachment A that declared that an environmental impact statement was not relevant as a factor to be taken into account.
107 Was the discussion in the assessment report sufficient for it to be said that the Minister took into account the environmental impact statement in its own right? Could a rejection, by the assessment report, of the position taken in the environmental impact statement suffice to conclude that the Minister had paid independent regard to it?
108 An affirmative answer to those questions would be contrary to the approach taken by the High Court in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. In that case the High Court considered the significance of a statutory requirement which obliged a mining warden to provide a recommendation about whether an exploration licence or a mining lease should be granted under the Mining Act 1978 (WA), to allow consideration of it by the responsible Minister. The High Court held that the statutory context required that the Minister have regard to the recommendation and take it into account in its own right. The majority judgment (Brennan CJ, Gaudron and Gummow JJ) said (at 174):
‘Here, the legislature provided no other means for the Minister to be informed of matters specific to the individual applicants. It is apparent that the Minister is bound to consider the information which the warden transmits under s 58(3) and s 75(3). The Minister may not exercise the discretion to grant or refuse applications until the warden’s recommendation and report, expressing as it must the warden’s decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the “right in priority”, the warden’s decision has a discernible legal effect upon the Minister’s exercise of discretion.
That conclusion is not affected by those provisions which make clear that the Minister is in no way bound by the recommendation of the warden (ss 59(4), 75(4)). These provisions are but a statutory indication that the weight of those considerations need not be decisive. They do not go to show that the consideration is other than one which the Minister is bound to consider.’
(Footnotes omitted)
109 The Minister, in the present case, was required to take the environmental impact statement directly into account, together with, but independently of, the assessment report. In my view, the assessment report could not be regarded in this case as fulfilling the role of a sufficient summary of the environmental impact statement, as well as a departmental assessment of the proposal. It is apparent from the assessment report that it was a response to, and a critique of, conclusions advanced by the environmental impact statement but it did not even purport to attempt a summary of it and nor did either of the briefs to the Minister.
110 Nothing in the second brief altered the earlier advice that the environmental impact statement was not applicable. No reference at all was made to it in the second brief. A conclusion that the environmental impact statement was taken into account on 27 April 2007 would require preceding conclusions, for which there is no evidentiary support in the period before the decision was made, that contrary to the advice to the Minister conveyed with the brief of 2 February 2007, he took into account, in the requisite legal sense, something he was told was legally not applicable, in a context where he was informed he should not take into account matters not required or permitted by the Act to be taken into account. I am not prepared to make any such finding based only on the evidence about the position so far discussed. The significant issue which is therefore exposed by PRL’s change of position is whether a contrary conclusion is required by reason of the content of the written Statement of Reasons. Necessarily, that requires a judgment about the weight to be given to that document.
THE MINISTER’S WRITTEN REASONS FOR DECISION
111 On 27 April 2007 the Minister wrote to the Managing Director of PRL, Mr Lai Ah Hong to advise of his decision to refuse approval for the proposal. He attached a copy of his decision and the assessment report provided by the Department. On 9 May 2007 PRL requested a formal Statement of Reasons for decision. A Statement of Reasons was provided on 14 June 2007.
112 The only direct suggestion that the Minister did take the environmental impact statement into account is to be found in that written Statement of Reasons furnished as required by s 13 of the ADJR Act. The suggestion implies, necessarily, that the Minister did not act in accordance with the advice he was given in the first brief.
The Ministerial brief of 13 June 2007
113 When PRL withdrew its acceptance that the written Statement of Reasons represented a true statement of the Minister’s contemporaneous reasons for the decision he made on 27 April 2007 it began to press for disclosure of any brief provided to the Minister relating to the provision of written reasons. It is not necessary to trace the various exchanges, in and out of court, on that issue. In due course the respondent filed a bundle of documents informally discovered to PRL consisting of a brief to the Minister dated 13 June 2007 (with attachments) which led to his acceptance, on 14 June 2007, of the recommendations it contained and his execution of the written Statement of Reasons sent to PRL on that date.
114 The brief was also attached to the later affidavit of Mr Early sworn on 6 August 2008. As will become clear, Mr Early’s evidence did not provide a basis upon which to reach conclusions about the Statement of Reasons which were inconsistent with conclusions which followed from consideration of the terms of the Statement of Reasons and the content of the brief dated 13 June 2007. For that reason I may defer discussion of Mr Early’s affidavit for the moment.
115 The brief dated 13 June 2007 was provided to the Minister by the Assistant Secretary of the Environment Assessment Branch, Ms Middleton. It was relatively short and was, in part, directed to an issue that has no significance for the present proceedings – a statutory requirement to provide written reasons, when requested, within 28 days. However, one practical significance of the pressure of time thereby identified was that the Minister gave himself very little time for consideration of the complex issues which this brief put before him in the form of the written Statement of Reasons he was being asked to consider and sign.
116 I shall set out the brief in full. It said as follows:
‘Timing: As soon as possible. 06-Jun-2007 Statutory Deadline.
Purpose: To provide you with a draft statement of reasons for the above decision.
Background:
• On 27 April 2007, you decided to refuse to approve the expansion of phosphate mining on Christmas Island (see covering brief at Attachment A). The decision has received national and international attention.
• On 9 May 2007, Phosphate Resources Limited (PRL) requested a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 (Attachment B).
• The enclosed statement of reasons (Attachment C) has been reviewed by the Australian Government Solicitor (AGS) and suggested changes incorporated.
Issues/Sensitivities:
• The 28 day statutory deadline commenced on 9 May 2007, when it was faxed to your Office, however, the Department did not receive the request until 15 May 2007. We have worked to produce the document as quickly as possible, while ensuring that it is a true and accurate statement of reasons for your decision.
• On 17 May 2007, PRL requested that the statement of reason [sic] be issued by 23 May 2007 or they may commence proceedings in the Federal Court of Australia under section 13 of the ADJ(JR) Act, (Attachment E). We advised PRL that the statutory deadline was actually 6 June 2007.
• Should PRL wish to challenge the decision, the late issue of the statement of reasons would not increase the success of any legal challenge.
Recommendation/s:
1. consider the attached draft statements of 1. Noted/Please discuss
reasons at Attachment C and make any
modifications you consider necessary to
ensure the statement reflects your reasoning
2. sign the statement of reasons at Attachment C 2. Signed/Not signed
3. sign the letter to the proponent to advise of 3. Signed/Not signed
Your reasons at Attachment D
…
Attachments: A Brief on approval decision
B Letter from proponent requesting Statement of
Reasons dated 9 May 2007
C Statement of Reasons
D Letter to proponent
E Letter from proponent requesting Statement of
Reasons dated 16 May 2007’
(Emphasis added)
117 The three passages I have emphasised are unremarkable in their own right. If the document the Minister was asked to consider and sign was a reliable indication of his own reasons it would not suffer from reference to legal advisers or being produced over a period of almost a full month on those accounts alone. However, as the more detailed discussion which follows will illustrate, the document produced to the Minister, for his eventual consideration between 13 and 14 June 2007 only, was complex and, in parts, highly technical. The suggestion that he should modify it to render it an accurate reflection of his own reasons cannot easily be reconciled with the position disclosed by the evidence of the earlier advice to him when he was asked to act on the recommendations made in the two briefs I have discussed. Mr Early’s later evidence was that a statement to this effect was part of a ‘template’ to be used as standard practice. Apart from the observance of this formality by Ms Middleton, there is no other basis to conclude that the Minister, in fact, gave the document independent consideration. No changes were made. The draft reasons were adopted in all their complex entirety.
118 While it may have been open to the Minister to adopt the reasons put before him on 13 June 2007 as a statement of reasons which he, acting on advice, might rely upon if he was making the decision on that day, the suggestion that they could be adopted after the event must be tested by some reference to the purpose for which written reasons are required to be provided, when sought, by s 13 of the ADJR Act. It will be necessary to examine this question more closely after the written Statement of Reasons is described in more detail.
Structure and content of the written reasons
119 I do not regard the document provided to PRL on 14 June 2007 as a reliable statement of the decision making process actually followed by the Minister up to and including 27 April 2007. In part that view is based upon the history I have already recounted. In part it is based on the terms of the document itself.
120 The first 27 (of 134) paragraphs contained an uncontroversial statement of the relevant legislative provisions and the history of procedural events concluding with the decision of 27 April 2007. Paragraph 28 listed the evidence and other material upon which the Minister’s findings were said to be based. That evidence and material was described as follows:
‘Briefs from the Department of the Environment and Water Resources with the following attachments:’
The documents listed were: the draft environmental impact statement with supplementary documents and public comments; PRL’s responses to requests for further information; Ministerial responses under s 131 of the Act; the report of the Centre for Mined Land Rehabilitation, Dr Mattiske’s report; PRL’s comments on those two reports; the assessment report by the Department; and nine recovery plans for particular flora and fauna. There was no separate mention of the advice given to the Minister in Attachment A to the first brief about the requirements for decision-making. Presumably it was regarded simply as part of the first brief.
121 Paragraphs 29 – 71 (which dealt with ‘Previous mining’, ‘Current rehabilitation of previously mined areas’, ‘Proposed action’, ‘Clearing of rainforest required for proposed action’, ‘Christmas Island Flora’ and ‘General impacts on flora from clearing and processing of phosphate’) each commenced with the statement: ‘I found that’ followed by a statement or conclusion of some kind. The technique employed suggested that the Minister had personally made detailed individual findings, sometimes about matters at a high level of scientific or technical detail. I find the technique unconvincing so far as it suggests detailed personal resolution by the Minister of the whole range of debated issues. Neither is there any evidence that a set of conclusions to the effect stated in those paragraphs was ever articulated before 27 April 2007, much less placed before the Minister before he made his decision.
122 The suggestion to the Minister, that he make modifications to the document ‘to ensure the statement reflects your reasoning’ may now be examined a little more closely. According to the brief to the Minister on 13 June 2007, which presented the Statement of Reasons to him for his consideration, the Minister was not provided with any of the material upon which the detailed findings were said to be based except the briefing document which was part of the second brief which I earlier set out. No doubt those other documents (including the environmental impact statement) had been studied in great detail by whoever prepared the Statement of Reasons but the suggestion to the Minister that he should make modifications seems, with respect, a hollow one.
123 Paragraphs 72 to 75 stated more general conclusions or findings (based on the earlier particular findings) in relation to impacts on flora. Those conclusions were expressed as follows:
‘72. In the light of my findings in paragraphs 31, 34, 36, 41 and 42, I concluded that it is likely that existing mined sites will not be rehabilitated to the original rainforest. I also found that the rehabilitation of existing mine sites is likely to be less effective as a consequential impact of the proposed action.
73. In the light of my findings in paragraphs 43 and 45, I concluded that the proposed lease sites will not be rehabilitated to the original rainforest. I also found that the proposed action will result in a long-term change in the vegetation type present on mined areas, and consequently, the habitat values of the rehabilitated mine fields. I therefore found that the action would result in a significant permanent loss of rainforest.
74. In the light of my findings in paragraphs 43 to 46, 48 to 52, 55, 56, 58 to 60, I found that the clearing will result in the loss, and potential loss, of endemic flora of conservation significance, including the listed threatened flora, Tectaria devexa and Asplenium listeri. However, there was insufficient information to quantify the magnitude of the impacts on all of the species mentioned.
75. In the light of my findings in paragraphs 41, 42, 62 to 66, 69 and 71, I found that the consequential impacts of the action will result in a larger impact footprint than the immediate area cleared for mining.’
124 Paragraphs 76 – 113 resumed the technique of individual findings about a large range of matters concerning impacts on fauna, followed by conclusions expressed in paragraphs 114 – 117 as follows:
‘114. In the light of my findings in paragraphs 82, 87, 90, 91 and 95, I found that the clearance of primary rainforest, secondary forest, and canopy and emergent trees will result in loss of nesting and foraging habitat for a number of listed threatened endemic birds. I also found that the loss of habitat will likely be long-term or permanent, given the conclusions reached in paragraph 72.
115. In the light of my findings in paragraphs 99 and 100, I found that the removal of habitat for the critically endangered Christmas Island Pipistrelle, and the Christmas Island flying Fox will contribute to the decline of both species. In the light of my findings in paragraphs 101 and 102, I also found that the removal or fragmentation of Christmas Island Blind Snake and Lister’s Gecko habitat will contribute to their decline.
116. I found the proposal to mine the large area of crab habitat noted in paragraph 106 will add to the stress on crab species, and given their important role in recycling nutrients in the Christmas Island ecosystem, as noted in paragraph 103, this will result in further degradation of the rainforest.
117. I found that phosphate mining has contributed to the decline of species through habitat loss. I found that without effective biodiversity conservation strategies, such as the preservation of primary rainforests, there is a high likelihood of species becoming extinct within the next twenty years.’
125 Then paragraphs 118 – 120, 121 – 123 and 124 - 127 stated further particular ‘findings’ about ‘Social and Economic Aspects’, ‘Environmental Record’ and ‘Ecologically Sustainable Development’ respectively.
126 The ‘findings’ I have identified cannot be explained as intended to suggest acceptance or adoption of material placed before the Minister in either of the briefs or the assessment report. None of those documents advanced this catalogued resolution of issues referred to and debated across the range of reports which were finally in the Department’s possession more than five years after PRL put its proposal and request for additional mining leases. The detailed list of findings advanced in the Statement of Reasons is obviously the result of careful assessment by a person (or persons) with a detailed knowledge of the factual and scientific issues involved. The process of articulating the ‘findings’ took some time as the brief of 13 June 2007 disclosed, even when done ‘as quickly as possible’. It is clear that the Minister did not personally perform the task, either before his decision was made or later. Nor is it open to conclude that, on or before 27 April 2007, he accepted and adopted an analysis to the effect represented by the ‘findings’ which had been prepared by somebody else. There is no evidence to that effect.
127 The Minister’s ‘Reasons for decision’ were then set out in paragraphs 128 – 134 in the following terms:
‘Reasons for decision
128. In making the decision on whether to approve the taking of the proposed action, I took into account (among other matters listed above) the principles of ecologically sustainable development, and the precautionary principle as discussed in paragraphs 124 to 127.
129. I considered that the proposed action would have significant adverse consequences for the achievement of the recovery objectives in the recovery plans of a range of listed threatened species as noted in paragraph 46.
130. In the light of my findings in paragraphs 42 to 46, 72 to 75, and 114 to 117 and 129, I concluded that the likely impacts of the action on the environment are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval.
131. In the light of my findings in paragraphs 71, 81, 82, 86 to 95, 98, 99, 101, 102, 114, 115, 117 and 129, I concluded that the likely impacts of the action on listed threatened species are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval.
132. In the light of my findings in paragraphs 88 to 96, 114, 117 and 129, I concluded that the likely impacts of the action on listed migratory species are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval.
133. In light of my findings in paragraphs 118 to 120 I concluded that the likely impacts of the proposed action on the environment, listed threatened species and listed migratory species are unacceptable, even after taking account of the economic and social benefits. In the light of my findings in paragraphs 124 to 127 I concluded that the action is not ecologically sustainable.
134. I therefore decided on 27 April 2007 not to approve the taking of the proposed action for the purposes of sections 18 and 18A (Listed threatened species and ecological communities), 20 and 20A (Listed migratory species) and 26 and 27A (protection of the environment from actions involving Commonwealth land) of the EPBC Act.’
128 I do not accept that the Minister set out to, or did, personally make the detailed series of findings which this document suggested. Contrary to one submission advanced by PRL, it was not a requirement of the Act or the general law that he do so. Neither of the briefs to him before the decision was made on 27 April 2007 suggested it was necessary or asked him to do so. Apart from the Statement of Reasons itself which, although signed, was not verified by the Minister, or otherwise, for the purpose of the proceedings there is no evidence that he did so. Nor, as I said before, is there any basis to conclude that the Minister had earlier (i.e. on or before 27 April 2007) adopted or approved any analysis of that kind.
129 It is clear that the written Statement of Reasons was prepared for the Minister, and reviewed, over a period of about four weeks. It made detailed reference to an extensive series of factual circumstances, scientific arguments and conclusions offered by various reports, including the environmental impact statement. None of the material in which those facts and arguments were stated, or any of the reports, including the environmental impact statement, was put before the Minister with the brief on 13 June 2007. Obviously, whoever prepared the Statement of Reasons made frequent and detailed reference to that material but there is no satisfactory evidence to support an inference that the Minister did so.
130 The Minister’s letter to Mr Lai Ah Hong, dated 14 June 2007, read as follows:
‘Thank you for your letter received on 9 May 2007, requesting reasons for my decision of 27 April 2007, to refuse approval to expand phosphate mining on Christmas Island (EPBC2001/487) under the Environment Protection and Biodiversity Conservation Act 1999.
I have enclosed the statement of reasons, signed under section 13 of the Administrative Decisions (Judicial Review) Act 1977. You should note that if you wish to apply for a review of the approval decision under the ADJR Act, you should make an application to the relevant court within 28 days of this statement being furnished to you.’
131 The ‘reasons for my decision’, were without doubt the Department’s explanation for the decision it had earlier recommended be made but, in my view, the Minister’s adoption of the explanation six weeks or so after the decision was made, does not establish that they were his reasons at that time.
132 Indeed, they did not, as was later conceded, adequately explain some aspects of the decision which the respondent has been obliged to concede were not justified by, or able to be sustained by reference to, the Statement of Reasons ultimately prepared.
Mr Early’s further affidavit
133 Most of this affidavit described various practices and procedures within the department, many of them established by Mr Early. A number of objections were taken to Mr Early’s affidavit. Some of them suggested that his evidence of departmental practice was not relevant. Some of them complained that he had stated conclusions without adequately disclosing the facts upon which the statements were based. The factual content of the affidavit, however, seemed uncontroversial even if arguably irrelevant or generally expressed. It was clear from responses made to the objections and from written submissions filed with the affidavit that the respondent wished to be in a position to invite me to conclude that the Minister had acted in accordance with the practices to which Mr Early deposed. Although the evidence fell well short of establishing what the Minister had done (except that he had received the brief dated 13 June 2007 and signed the Statement of Reasons sent to PRL on 14 June 2007) much less why he had taken any particular step I decided I would not remove from the respondent the foundation advanced, such as it was, for the suggested inferences and I therefore overruled the objections. I saw no prejudice to PRL, as it remained open to it to submit that the suggested inferences were either not available or too slender to be drawn.
134 Mr Early said, in connection with the practice of inviting a Minister to make ‘modifications’:
‘Another administrative process which was developed and which I approved for the proper administration of the EPBC Act is to place primary responsibility upon the departmental officer who prepared the original written brief to the decision-maker to prepare the first draft of any statement of reasons for that particular decision on the basis of the original written brief, any annotations or comments by the decision-maker on the original written brief or any discussion with the decision-maker at the time of the decision, and the attachments to that brief. Under this practice, those draft reasons for decision are then put to the decision-maker to consider whether they accurately reflect the decision-maker’s reasoning and can be adopted as such by the decision-maker or whether they do not accurately or completely embody the decision-maker’s reasoning and require modification. The practice requires the brief to expressly state that the decision-maker is to consider the draft statement of reasons and to make any modifications the decision-maker considers necessary to ensure the statement reflects the decision-maker’s reasoning.’
135 To the extent that Mr Early’s evidence was intended to raise an inference that the Minister, in fact, personally verified the contents of the draft reasons provided to him on 13 June 2007, I am not prepared to draw such an inference. It would be no more than an assumption, made in the respondent’s favour, unsupported by any cogent evidence. As I said earlier, the Minister was not, with the brief dated 13 June 2007, provided with the material from which the detailed reasoning in the Statement of Reasons was drawn. An assumption that he did more than simply accept the Statement of Reasons as reliable would be unwarranted. Nor am I prepared to draw an inference, much less simply assume, that the fact that the Minister made no changes to the draft reasons put before him indicated that they were matters present to his mind on 27 April 2007.
136 Another issue dealt with by the affidavit concerns what were said to have been errors in the material before the Minister when he made his decision on 27 April 2007. It is as well to set out those paragraphs in full:
‘21. The Attachments A, B and C to the Brief dated 2 February 2007 and which I forwarded to the former Minister on that date (see paragraph 24 of my first affidavit and Annexure “GPE-18” thereto) contained a number of errors which I did not identify at the time that I signed the brief.
22. At paragraph (a) on the first page of Attachment A and paragraph (b) on the second page, the references to Attachment G should have been references to Attachment I (the Departmental assessment report). The designation “N/A” at paragraph (c) on page 2 of Attachment A was also incorrect, and should have stated “see Attachments G and H”.
23. In the proposed refusal decision at Attachment B to the Brief dated 2 February 2007 it is stated that the refusal has effect for all five sets of the controlling provisions which, on 14 November 2001, I had determined were the controlling provisions for the proposed action (see paragraph 4 of my first affidavit). The proposed refusal decision should not have stated that the refusal for approval had effect for sections 16 and 17B (Wetlands of international importance) and sections 23 and 24A (Commonwealth Marine Area) of the EPBC Act. The heading of attachment B also refers to “Decision to approve the taking of an action” when it should have said “Decision to refuse the taking of an action”.
24. The proposed letters to the Minister for Local Government, Territories and Roads and to the Minister for Transport and Regional Services at Attachment C to the Brief of 2 February 2007 should also not have referred to the controlling provisions sections 16, 17B, 23 and 24A of the EPBC Act.
25. Before I signed the Brief of 2 February 2007 I had carefully read the Departmental Assessment report at Attachment I, and I was aware that the Department had only recommended refusal of the proposed action because of its assessment in relation to controlling provisions sections 18, 18A, 20, 20A, 26 and 27A of the EPBC Act.’
137 However candid might be the admissions of error which these passages contained, and however honourable might be Mr Early’s assumption of personal responsibility (which I do not intend in any sense to disparage) the matters to which he referred, taken at their highest for the respondent, confirm, rather than alter, the character of the decision made on 27 April 2007, the Minister’s reliance upon and adherence to the recommendations made to him and the legal errors which result.
138 I confess that, in part at least, I find some of the explanations unconvincing. For example, it is hard to dismiss the references to the assessment report (identified as Attachment G) in Attachment A to the first brief as oversights or slips. Attachment A refers to the assessment report explicitly as Attachment G in two separate places. The environmental impact statement is referred to in two separate places as Attachment F (not Attachment G, as it was in the first brief).
139 I am also bemused by Mr Early’s treatment of the ‘errors’ made about the controlling provisions. As Mr Early pointed out, the suggested errors were made not only in the decision offered to the Minister for approval but also in correspondence he was asked to sign. The only departure from statements to the effect that ss 16/17B and 23/24A were relevant controlling provisions for the purpose of the Minister’s decision to refuse approval did not occur until six weeks after the decision was made and a comprehensive set of written reasons had been prepared and then reviewed by the Australian Government Solicitor in circumstances of ‘national and international attention’ to the decision.
140 The first brief to the Minister, on 2 February 2007, said, in part:
‘The Department is concerned that phosphate mining on the proposed leases would impact upon various matters protected under the EPBC Act.’
141 The brief itself identified all five sets of controlling provisions nominated in Mr Early’s earlier decision that the proposed mining was a ‘controlled action’. The letters to other Ministers, which the Minister was asked to, and did, sign said:
‘I am writing for the purposes of section 131 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in relation to the decision I am proposing to make on this matter. I intend to reject the proposal by Phosphate Resources Limited to expand phosphate mining over nine sites of vacant Crown land on Christmas Island.
I am informing you of my proposed decision, the relevant controlling provisions for which are:
• Section 16 and 17B (Wetlands of international importance);
• Sections 18 and 18A (Listed threatened species and communities);
• Sections 20 and 20A (Listed migratory species);
• Sections 23 and 24 A (Marine environment); and
• Sections 26 and 27A (Protection of the environment from actions
involving Commonwealth land).’
All five sets of controlling provisions were therefore again identified as ones relating to the ‘proposed decision’.
142 The five sets of controlling provisions were expressed to be ones for which the proposed decision would have effect in the draft decision approved in principle by the Minister on 14 February 2007, in accordance with Mr Early’s recommendation to him on 2 February 2007.
143 The five sets of controlling provisions were ones for which the decision signed on 27 April 2007 was expressed to have effect.
144 Section 130 of the Act (which I will discuss in a little more detail) required that the Minister make a decision for each of the sets of provisions that Mr Early had decided were controlling provisions. The decision was required to be ‘whether or not to approve the taking’ of the action. On its face, the decision made on 27 April 2007 met this requirement.
145 The statement in the Minister’s decision that the decision had effect for ss 16/17B and 23/24A of the Act, and the same statement in correspondence sent to Ministerial colleagues, draws attention inevitably to the fact that the Minister’s decisions and actions were based directly on the recommendations in the two briefs and were infected by any legal error or inadequacy of advice or analysis there disclosed. The respondent argued that those aspects of the decision should be regarded simply as a clerical error. In my view the matter should not be approached that way. I am convinced that the better view is that the suggested errors are, seen in their historical and proper context, further cogent evidence of the fact that the Minister’s actual, and contemporaneous, reasons for decision are explained by the two briefs and the summaries and recommendations they contain, rather than in the written Statement of Reasons.
146 Finally, the statement in the last paragraph of Mr Early’s affidavit which I set out earlier should be mentioned. Apart from a reference at the beginning of the assessment report that all five sets of controlling provisions had been determined to be applicable (as they had earlier by Mr Early himself), the assessment report made no further specific reference to any of the controlling provisions. It did not state any recommendation in terms which referred to the controlling provisions, much less to only three sets of such provisions. The only, even oblique, reference to the protections given by the Act in that part of the assessment report which contains the Department’s recommendations occurred in the last sentence of the second last paragraph of the assessment report in the following terms:
‘Further, the draft EIS has not demonstrated the impacts of the proposal on all the matters protected under the EPBC Act in relation to the proposal will be acceptable.’
147 However, the respondent submitted that it was clear from the discussion in the assessment report that the Department did not make an assessment that all five sets of controlling provisions were engaged. Reference was made to specific parts of the assessment report, which I have identified hereunder, which, it was suggested, made clear that ss 16/17B and 23/24A of the Act were not intended to be a foundation for the decision to refuse approval.
148 As to ss 16/17B, the passage identified was:
‘The modified proposal in the draft EIS, covers eight rather than nine leases. PRL has withdrawn the ninth lease, MCI 70/9 (124.14ha), which contains primary rainforest, a high density of roosts of Abbott’s Booby Sula abbotti, and is close to Hosnie’s Spring (Ramsar site).
149 No conclusion, based on this circumstance, was stated elsewhere in the assessment report. Any conclusion about the significance of withdrawal by PRL of the ninth proposed lease requires other information which was certainly in Mr Early’s knowledge but about which there was no evidence that it was within the Minister’s knowledge. It was certainly within Mr Early’s knowledge because, on 8 January 2002, he gave written reasons for deciding on 14 November 2001, contrary to PRL’s contentions, that all five sets of provisions were controlling provisions. In those written reasons he said (in a style very similar to the later Reasons for Decision signed by the Minister):
‘15. I found that Hosnie’s Spring is listed as a wetland of international importance under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (the Ramsar Convention). I found that the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland make an important contribution to the ecological character of Hosnie’s Spring.
16. I found that most of the rainwater that falls on Christmas Island percolates through the soils and porous limestone into groundwater systems. I found that Hosnie’s Spring is located approximately one kilometre from the site of the proposed mining operations and that most of the water flowing into the wetland comes through groundwater systems.
17. I found that changes to the surface as a result of mining operations could alter the characteristics of water percolating into groundwaters. In view of the close proximity of the site of proposed mining operations to Hosnie’s Spring, it is possible that the operations will result in a major change to the quality and quantity of water flowing into the wetland. This would adversely affect the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland.
18. I found that there is insufficient information about groundwater flows to provide full scientific certainty about whether or not the effects referred to in paragraph 17 will occur. Applying the precautionary principle, I decided that it is likely that the action will result in changes in the quality and quantity of water flowing into Hosnie’s Spring.
19. I found that some of the phosphate-laden dust referred to in paragraph 14 is likely to be blown into Hosnie’s Spring, resulting in further adverse changes in the physico-chemical status of the wetland.
20. In light of my findings in paragraphs 15 to 19 I found that the proposed action is likely to have a significant impact on the ecological character of a Ramsar wetland.’
150 Doubtless, Mr Early might have appreciated, on a careful reading of the assessment report, that no basis remained for refusal of the proposed action by PRL by reference to ss 16/17B of the Act but there was no evidence that this conjunction of events and circumstances was ever brought to the Minister’s attention. Mr Early’s statement of his reasons for decision of 8 January 2002 was not amongst the material placed before the Minister with any of the briefs.
151 The position regarding ss 23/24A of the Act is even more obscure. The relevant passage in the assessment report, from which, it was argued, it should be concluded that ss 23/24A was not to be the foundation for a decision to refuse approval, was identified as:
‘Marine Fauna
Phosphate from stormwater can alter nutrient levels in the seawater which can impact on the algae and coral population. As the extent of coral and seagrasses is restricted around the Island, impacts can contribute to substantial alterations of the local marine biota.
It is unknown to what extent the change in nutrient levels from phosphate in stormwater runoff, will impact upon the food sources for adult and juvenile Green Turtles (Chelonia myda), Hawksbill Turtle (Eretmochelys imbricate), the spawn of Red Crabs, and migrating Whale Sharks (Rhincodon typus). However, the issues can probably be managed through appropriate mitigation measures.’
Another passage, to which my attention was not drawn, was less optimistic about stormwater runoff. It said:
‘Erosion and Water quality
Areas that are cleared of vegetation are susceptible to erosion during large storm events, particularly in the “wet” season. Compaction of soils during mine site establishment and mining operations can result in preferential flow paths for water, and development of erosion channels. Sediment eroded from mine areas has the potential to impact on the marine environment.’
152 Mr Early’s reasons for deciding that ss 23/24A were controlling provisions were not expressed, however, to be based on a concern about phosphate in stormwater runoff. He said he was concerned about phosphate laden dust. His reason was:
‘14. I found that phosphate-laden dust will be generated by mining operations, road transport, ore-drying, and ship-loading. Some of this dust will be blown into the marine waters surrounding Christmas Island, with a consequential increase in the concentration of phosphorus and sedimentation in these waters. I found that increased phosphate concentrations and sedimentation can have a deleterious effect on marine waters. I found that these waters support coral reefs, tropical fish and turtles and are likely to be sensitive to increased phosphate concentrations and the smothering impacts of ore dust, especially upon the inshore benthic reef biota. I therefore found that the proposed action is likely to have a significant impact on the environment in the Commonwealth marine area.’
153 A further passage in the assessment report, to which my attention was not specifically drawn, said:
‘Dust
In-situ mining of the proposed mining leases will generally involve creating access through primary vegetation to the rear of the ore body, and retreat mining out in panels perpendicular to the access track. Moderate slopes will be mined in a terrace fashion where the excavator will dig from the base of the slope.
During the clearing, mining and transport of ore associated with this proposal, dust will be generated both in the proposed leases, and in the transport corridors to the phosphate dryers. The dust has the potential to coat the leaves and stems of exposed vegetation in the immediate vicinity of its source. Dust generation currently occurs from existing, high-usage roads on the Island, and from current mining of stockpiles, during ore processing and during shiploading, with the latter two sources being the most significant. The vegetation and underlying soil surface immediately adjacent to these areas is often coated with dust, especially during dry periods. However, this effect is relatively localized with little evidence of major dust deposition more than 30m into the forest from major roads.’
154 This analysis does not seem to me to directly dispel Mr Early’s expressed concern that phosphate-laden dust might be blown into the marine waters surrounding Christmas Island from ship-loading, and other, operations. I do not accept, therefore, that a careful reading of the assessment report by the Minister, had that occurred, would have made it apparent that the references to ss 23/24A were erroneous and inadvertent.
155 It seems to me that no real attention was given in the assessment report to the question of which of the controlling provisions should provide the statutory foundation for refusal of PRL’s proposal. Rather, the assessment report dealt in its discussion, conclusions and recommendation with the larger question of whether the proposal should be accepted or rejected. The brief, however, and its various attachments which the Minister was asked either to execute or approve in principle (the correspondence to other Ministers and the draft decision) did explicitly state the controlling provisions which were at work and for which the decision should be made.
156 I do not accept the submission made by the respondent that there was a simple unintended clerical error in the terms of the decision made on 27 April 2007. In my view, the conclusion is inescapable that the inability of the Department to justify the decision refusing approval for the purposes of ss 16/17B and 23/24A only became apparent when work started on the preparation of detailed written reasons to explain the decision. However, it does not matter in the end what view is reached about this issue. Even had I accepted Mr Early’s evidence about his own appreciation of the position at face value it would only have added to my conviction that the Minister’s assessment was dependent upon, and he did rely upon, the specific recommendations made to him in the briefs of 2 February 2007 and 19 April 2007, including what are now said to be the errors they contained.
157 Whatever view is taken, I see no basis upon which I could conclude that the admitted deficiencies should be regarded as having no significance for an appreciation of the Minister’s actual reasons at the time he made his decision. Quite clearly those reasons were not adequately, reliably or accurately expressed by the written Statement of Reasons signed on 14 June 2007. If they were the decision would not have been made in the terms it was.
The presumption of regularity
158 When PRL first indicated its change of position the respondent suggested that a presumption of regularity applied to shield the written Statement of Reasons from collateral attack.
159 The written Statement of Reasons gains no additional evidentiary value from any application of this ‘presumption’. The authors of Cross on Evidence (loose-leaf edition) observe that: ‘in truth the presumption is merely a principle of expediency whereby it falls upon the impinging party to assert and justify the grounds of his attack’.
160 In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA said (at 164):
‘The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’
161 The principle can have no application here. The question here is not whether a condition necessary to the exercise of power has been fulfilled but whether the reasons for the exercise of power are as described in a document brought into existence after the power was exercised or should be distilled from an examination of the material before the Minister at the time the power was exercised. The presumption of regularity cannot prevent an examination of the issue by reference to the available evidence and it does not give evidentiary priority to an explanation brought into existence after the power is exercised.
162 In any event the presumption is rebuttable (Kingham v Sutton [2002] FCAFC 107; 114 IR 137 at [58]). In the present case there was rebutting evidence. That evidence was put forward in the respondent’s own initial case. The later provision of the Ministerial brief of 13 June 2007, if anything, confirmed what was already apparent, namely that the reasons for decision carefully crafted in the Department after they were requested by PRL were not the reasons present to the mind of the Minister, or adopted by him, when he signed the decision on 27 April 2007. In my view there is no room for the operation of the presumption in those circumstances (see also Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548 at 558-9).
The weight to be given to the Statement of Reasons
163 The respondent argued that PRL had not discharged the onus of showing that the written Statement of Reasons was not a true statement of the Minister’s reasons. Reference was made, by way of analogy, to Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 (‘W157/00A’) and Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 (‘Navarrete’). I shall discuss those cases shortly.
164 In the present case, the written Statement of Reasons signed by the Minister, and provided to PRL on 14 June 2007, was admitted into evidence without objection. It was not verified. The Statement of Reasons was, initially, simply identified by Mr Early and attached to his affidavit which said:
‘28. On 27 April 2007, the Minister made a decision pursuant to section 133 of the Environment Protection Act refusing approval of the Applicant’s proposed action. A copy of the Minister’s decision forms part of Annexure “GPE-22” hereto.
29. The Applicant subsequently requested that the Minister provide a statement of reasons for his decision of 27 April 2007 pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Minister provided the Applicant with his statement of reasons on 14 June 2007. Annexed hereto and marked “GPE-23” and “GPE-24” respectively are copies of the Minister’s letter to the Applicant’s Managing Director, Mr Lai Ah Hong, dated 14 June 2007 and his signed statement of reasons.’
165 In his later affidavit Mr Early described the procedural steps which were taken in the period between the request by PRL for a formal statement of reasons and when the Minister signed the draft statement of reasons prepared for him by the Department. He confirmed that:
‘19. On 14 June 2007 the former Minister signed the Brief, and signed the draft statement of reasons at Attachment C to the Brief without making any modifications to the draft statement of reasons. A copy of the draft statement of reasons at Attachment C to the Brief dated 13 June 2007 which was signed by the former Minister on 14 June 2007 is Annexure “GPE-24” to my first affidavit.’
166 Mr Early was not cross-examined. There was, therefore, no further exploration through him of the mechanism by which the Statement of Reasons was constructed and the basis, so far as Mr Early could have given evidence about it, for the categorically stated findings which were represented as the Minister’s own. There was no reason why Mr Early could not have been cross-examined about those matters (see e.g. Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61-62) and I must also bear in mind the fact that no objection was taken to Mr Early’s introduction of the Statement of Reasons (cf. Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 (‘Taveli’) and Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 (‘Nezovic’). However, although those matters must be taken into account they are far from conclusive.
167 In W157/00A a Full Court examined the decision-making processes arising under s 501 of the Migration Act 1958 (Cth) (‘the Migration Act’). Section 501G of the Migration Act required that a notice cancelling a visa on character grounds set out the reasons for cancellation. Those reasons were to be stated, however, in the same notice that set out the decision to cancel. There is, as a result, no parallel with the present case. Branson J (with whom Goldberg and Allsop JJ agreed) pointed out (at [39]) that it was not necessary that the reasons be drafted by a Minister personally. She said:
‘In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision.’
168 In Navarrete (another case concerning s 501 of the Migration Act) Allsop J said (at [40]), after referring to Branson J’s observation in W157/00A:
‘40 If the Minister gave no consideration to the terms of the draft, for instance because the author was known to be reliable and she was prepared to sign a memorandum from that person without giving it consideration, it might be said that there was jurisdictional error for the failure by the Minister to make the decision personally. However, there was no evidence here upon which I could conclude otherwise than that the draft reasons were adopted by the Minister as her own reasons after due consideration and that she made the decision for herself and adopted the draft reasons therefor.’
169 In the present case the respondent relied on those observations to suggest that there was no reason not to accept that the Minister had adopted as his own the draft reasons put before him on 13 June 2007. The difficulty this argument faces is that, unlike the position discussed in W157/00A and Navarrete, any such adoption of the reasons occurred after, and not contemporaneously with, making the decision. A conclusion that the Minister adopted the draft reasons as his own, some six weeks after the decision was actually made, does not resolve the present case in the respondent’s favour. On the contrary, it highlights the problem which PRL has, somewhat belatedly but nonetheless sufficiently, now identified and relied upon.
170 Another response made by the respondent was to suggest that PRL’s new arguments amounted to an allegation of lack of good faith on the part of the Minister which imposed a further heavy onus on PRL. In my view this argument proceeds, at least in part, on a false premise. Uncritical adoption of ‘reasons’ prepared by departmental officers need not involve any lack of good faith. It may proceed from honest reliance upon the capacity, integrity and diligence of the officers in question. Courts have repeatedly emphasised that Ministers of the Crown are entitled to rely upon advice and are not expected to be equipped, or able, to give detailed personal attention to every facet of matters which inform a final decision. As I pointed out earlier, however, errors made in the advice provided to a Minister may become incorporated in the Ministerial decision. Such errors are not excused legally by the suggestion that the Minister acted in good faith.
171 In Taveli, (although dissenting on the question of admissibility of an unverified statement of reasons to which objection was taken) French J made, with respect, an important statement about the statutory objectives of s 13 of the ADJR Act and the character of written statements of reasons which s 13 requires. His Honour said (at 178-9):
‘It is too narrow a view of the policy of the section however to suggest, as did counsel for the respondent, that it was enacted only for the benefit of those who are affected by decisions and who may wish to challenge them. As Professor Pearce has observed, it was implicit in the recommendations of the Commonwealth Administrative Review Committee for the enactment of such a provision, that the giving of reasons will not only reveal defects in the decision but will also lead to better decision making by requiring administrators to identify for themselves the reasons for their decisions –C D Pearce - Commonwealth Administrative Law (1986) - para.357. This is consistent with the evident policy of the legislative scheme for review of administrative decisions reflected in the Administrative Appeals Tribunal Act 1975 (Cth), TheOmbudsman Act 1976 (Cth), Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982 (Cth). They provided significantly new opportunities for access to the processes and materials underlying official decision making and substantially widened the bases and mechanisms for review. And although the facilities provided for redress against unlawful or unfair or erroneous decision-making are important elements of these statutes, their overarching objective must be to improve and maintain standards of official fairness, rationality and compliance with the law. It is against that broad policy background that s 13 is to be considered.
Importantly, the obligation imposed by the section is not satisfied by the provision of an ex post facto justification for the decision under challenge. It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s 13 is clear. It is to set out “the findings on material questions of fact” and “the reasons for the decision”. That does not require the degree of precision or detail which may be appropriate to a judicial decision. But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment. If an official or his or her advisers discover error when asked to provide a s 13 statement, the appropriate course may be to concede that the decision requires reconsideration. It is not appropriate to draft a statement from which the error is censored. The Court is sufficiently aware of the pressures associated with administrative responsibilities for high volume and urgent decision-making to accept that mistakes will occur which can and should be redressed without any personal reflection upon the competence or integrity of the officials whose decisions are under challenge. But the statute requires that a statement provided under s 13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court.
And it is that statutory context that lays a foundation for the acceptance of a properly authenticated statement of reasons under s 13 as evidence of the truth of what it says, namely, that the findings made, the evidence referred to and the reasons set out were those actually made, referred to and relied upon in coming to the decision in question and that no finding, evidence or reason which was of any significance to the decision has been omitted. That the statement may be used in evidence to support such an inference does not exclude the possibility that a contrary inference may be drawn from its form and contents considered alone or against other evidence in the case. Absent any such contra-indication, the inference that it is an accurate account of the findings and reasons actually relied upon is no more than a piece of circumstantial reasoningnot dissimilar in character from that which underlies the so called presumption of regularity or presumption against fraud – P Gillies - Law of Evidence in Australia (1987) pp.85-88. To the extent that evidentiary effect is given to the s 13 statement by a process of inferential reasoning, the term “presumption” may mislead. The inferences which may be drawn about its accuracy as a true account of findings and reasons are derived from the facts implicit in its authentication and that it was prepared by the decision-maker in the exercise of a statutory duty to give such an account of his decision.’
(Emphasis added.)
172 His Honour repeated the second paragraph quoted above (excepting the first sentence) in Nezovic at [56]. His Honour’s views in Taveli were also referred to with approval by a Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000)98 FCR 469 at [31] (see also [44]). What is required is a faithful and reliable statement of the reasons that were actually (not ostensibly) present to the mind of the decision-maker at the time the decision was made. For reasons earlier explained, having regard to the material before the Minister at the time the decision was made, the context in which it was made, the matters to which his attention was drawn (and not drawn) and the absence of any other direct evidence concerning the matter, I do not accept that the Statement of Reasons meets the requirements distilled by French J. I am not precluded from concluding, on the whole of the evidence, that the stated reasons deserve no weight (Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 63). Having regard to the matters discussed earlier concerning the structure and content of the Statement of Reasons, and the evidence about what had been put before the Minister before the decision was made, that is the view to which I have come.
173 That conclusion leaves the defects in the decision making process earlier discussed exposed and unprotected. On that analysis it should be concluded on the evidence that the Minister failed to take into account the environmental impact statement prepared by PRL. Accordingly, I conclude on the balance of probabilities that the Minister, acting on the advice of his Department, failed to observe a mandatory statutory requirement. The decision must for that reason alone be set aside.
OTHER DIFFICULTIES
International obligations
174 In the first brief the following was said:
‘The Department believes that, based on the information provided by PRL, a decision to approve the proposal would be inconsistent with Australia’s obligations under international treaties, and recovery plans for listed threatened and migratory species (Attachment A). Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment I).’
(Attachment A was ‘Information on legal obligations for decision-making’. Attachment I contained a number of recovery plans for listed threatened species).
175 As I earlier pointed out, neither of the two briefs to the Minister advanced any case in support of the Departmental opinion that refusal of the proposal was required by s 139 and/or s 140.
176 Attachment A to the first brief to the Minister contained the following:
‘Requirements for decisions about threatened species and endangered communities under Section 139
Insert relevant information about any listed threatened species and endangered communities – eg. Recovery Plans etc.’
177 This suggests that the document was incomplete when provided to the Minister. Thereunder ss 138, 139 and 140 were set out, with some commentary. No conclusion was expressed about the question of possible inconsistency. That is not surprising as the author(s) of Attachment A had not yet provided any factual foundation on which any conclusion could be drawn.
178 Section 139 and 140 of the Act provided:
‘139 In deciding whether or not to approve for the purposes of a subsection of section 18 or section 18A the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with:
(a) Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; or
(b) a recovery plan or threat abatement plan.
140 In deciding whether or not to approve for the purposes of section 20 or 20a the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval, The Minister must not act inconsistently with Australia’s obligations under whichever of the following conventions and agreements because of which the species is listed:
(a) The Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement approved under subsection 209(4).’
179 In the second brief the Minister was reminded:
‘Given the magnitude of impacts on the matters of national environmental significance outlined in that brief, and the legislative requirement that you must not act inconsistently with the relevant environmental international conventions, the Department recommended that you refuse the proposal.’
180 The assessment report prepared by the Department did not mention ss 139 or 140 of the Act. However, it made frequent reference to recovery plans for particular listed species. The recovery plans which were later said, in the Statement of Reasons, to have been provided to the Minister concerned: Christmas Island Spleenwort; Tectaria devexa; Abbott’s Booby; Christmas Island Frigatebird; Christmas Island Hawk-owl; Christmas Island Goshawk; Christmas Island Pipistrelle; Lister’s Gecko and Christmas Island Blind Snake; and Christmas Island Shrew. Although the assessment report expressed concern about possible or likely impacts or ‘additional pressure’ on those species of flora and fauna, there was no statement to the effect that rejection of the proposal was required by s 139 or s 140 of the Act. Rather, the assessment report concluded upon the following note:
‘The proposed phosphate mining on the proposed leases will impact upon various matters protected under the EPBC Act. The key issues include:
• Loss of primary rainforest and regrowth vegetation;
• Impacts on native vegetation and listed flora through edge effects;
• Inability to rehabilitate the majority of mine sites to original primary rainforest;
• Loss of habitat for native, endemic and listed mammals, birds, and crabs;
• The role of clearing rainforest as a contributing factor in the long-term decline and extinction of species; and
• Spread of introduced flora and fauna that may prey upon, compete with, or displace native species.’
181 Undoubtedly, the most detailed explanation of the Department’s reasons for recommending refusal of PRL’s proposals (even if not the Minister’s own reasons at the date of the decision) is that contained in the Statement of Reasons. For that reason it is instructive to test the statements in the first two briefs suggesting that the proposal was directly inconsistent with international obligations or recovery plans by reference to it.
182 In the written Statement of Reasons the issue was addressed (although not by reference to ss 139 or 140 of the Act) as follows (at paragraph 129):
‘129. I considered that the proposed action would have significant adverse consequences for the achievement of the recovery objectives in the recovery plans of a range of listed threatened species as noted in paragraph 46.’
183 If that conclusion engaged the operation of either s 139 (which refers to ss 18/18A) or s 140 (which refers to ss 20/20A) the Minister would have been, for that reason alone, obliged to refuse approval. No direct statement to that effect was made. Was the matter dealt with indirectly? I think not.
184 Paragraph 46 (which was referred to in paragraph 129) said:
‘46. I found that land clearance, including for mines and roads, is listed as a key threatening process under the EPBC Act. I found that land clearance affects listed threatened species, mentioned in paragraphs 56, 58, 82, 87, 90, 95 and 102 and could cause unlisted species to become eligible for listing as threatened. I also found that habitat loss from land clearance was listed as a threat in the recovery plans for listed threatened species noted in paragraphs 56, 58, 82, 87, 90, 95 and 102.’
185 Paragraphs 56, 58, 82, 87, 90, 95 and 102 were as follows:
‘56. I found that as stated in the recovery plan for Tectaria devexa, “removal of actual or candidate habitat by phosphate mining or by construction of roads or other developments” and “weed invasion arising from rehabilitation of mined areas or from construction” are potential threats for the species. I found that PRL proposes to clear vegetation from a number of proposed leases with potential habitat for the species, as noted in paragraph 55, and this would have an adverse impact on Tectaria devexa.
…
59. I found that as stated in the recovery plan for Christmas Island Spleenwort, “removal or modification of actual or potential habitat by phosphate mining or by construction of roads or other developments” and “weed invasion arising from rehabilitation of mined areas” are potential threats for the species.
…
82. I found that as stated in the recovery plan for the Christmas Island Goshawk, habitat loss from clearing is a threat to the species. I found that PAN survey data in the recovery plan suggests that most Christmas Island Goshawks (approximately 95%) are located within rainforest areas, and are likely to require rainforest habitat containing suitable trees to breed. I found as stated by PRL’s consultant EWL Sciences Pty ltd, the significance of the loss of habitat from clearing “will depend upon how rapidly the areas regenerate to a stage when the goshawk can occupy them for hunting and ultimately territory establishment.” I further found as stated by PRL, that “the re-establishment of potential nest trees might take 20 years or more.”
…
87. I found that as stated in the Hawk-owl recovery plan, habitat loss is a threat to the species. I found that although the Christmas Island Hawk-owl forages in all habitats, the sparse data collected so far suggests that the owl requires mature rainforest trees with hollows for nesting. I found that revegetation after mining on nesting sites would be long term. I found that the clearing of some proposed mining leases would result in the loss of some Hawk-owl territories.
90. I found that as stated in the recovery plan for the Abbott’s Booby, the modification and destruction of the species breeding habitat is a threat. Modification and destruction of breeding habitat includes mining and rehabilitation practices for mined areas. I found that clearing for the PRL action will result in the loss of many canopy and emergent canopy trees, as noted in paragraph 45, that the species may be able to use. I found that the recovery plan for Abbott’s Booby states that “wind turbulence is exacerbated downwind from clearings, with negative impacts on breeding boobies and their habitat.” I found that the clearing of areas would therefore facilitate the loss of further nest site adjacent to proposed lease areas, due to exposure to wind, and would also reduce the potential for the species to recover.
…
95. I found that as stated in the Christmas Island Frigatebird recovery plan, wind turbulence around nesting sites is a cause for concern, and as such, I found that areas adjacent to nesting sites need to be carefully managed. I found that some research suggests that clearance of vegetation within 300m of nesting sites may have deleterious impacts on the species. I found that PRL’s consultant EWL Sciences Pty ltd noted that “MCI 70/11, 12 and 13 are about 195 to 300m from these colonies”, but a part of MCI 70/12 “was too steep to survey”. However, I also found that, based on more recent data from PAN, MCI 70/11 is within 280m of Christmas Island frigatebird nests to the north and 190m to the east. MCI 70/12 is within 110m of nests to the east. MCI 70/13 is within 190m of nests to the north. I found that as stated in the Christmas Island Frigatebird recovery plan, all nesting sites should be considered habitat critical to the survival of the Christmas Island Frigatebird.
…
102. I found that as stated in the recovery plan for the Christmas Island Blind Snake and Lister’s Gecko, habitat loss, fragmentation and degradation are listed as threats to both species. I found that PRL did not find either of those species in surveys. I found that the reduction in reptile populations has occurred across all different habitat types. However, I also found that this decline in species populations enhances the value of any remaining habitat for those species.’
186 In none of those paragraphs was any conclusion expressed that approval of the proposed action would be inconsistent with a nominated recovery plan or any of the international obligations arising from conventions referred to in ss 139 or 140 of the Act.
187 Upon the assumption that the written Statement of Reasons provided the most considered and detailed analysis by the Department (even if not the Minister’s own reasons for his decision) there was, therefore, no apparent justification for the assertion in the first brief to the Minister that refusal of the proposal was, in effect, proscribed by the Act itself.
188 That circumstance suggests that the Minister’s attention was directed by the brief to an irrelevant consideration – namely the unsupported assertion that Australia would breach its international obligations if the proposal was approved. However, that possibility was not identified by PRL. No submissions were addressed to it by either party. In the circumstances I will not give it any weight.
The controlling provisions
189 As earlier indicated, it was conceded on the second day of hearing that there was no basis for a decision that refusal of PRL’s proposals should have effect for ss 16/17B of the Act or ss 23/24A of the Act. In the case of ss 16/17B that was because PRL had abandoned a proposal to mine within about one kilometre of a Ramsar wetland. In the case of ss 23/24A of the Act the position was less clear but the admission of error in the decision was not.
190 Section 130(1)(a) of the Act provided:
‘(1) Within whichever of the following periods is relevant, the Minister must decide for the purposes of each controlling provision whether or not to approve the taking of a controlled action:
(a) 30 business days, or such longer period as the Minister specifies in writing, if the action is the subject of an assessment report;’
191 Mr Early’s evidence that ss 16/17B and 23/24A were nominated in correspondence to other Ministers, in the draft decision for the Minister’s consideration and in the decision which the Minister finally made, all in error, supports a conclusion that until the written Statement of Reasons was drafted no real thought had been given to which of the controlling provisions identified in 2001 by Mr Early provided statutory support for a decision to reject the proposal. Rather, until that time, the matter had proceeded upon the footing determined by Mr Early, namely that there were five sets of relevant controlling provisions. As I said earlier, it does not appear to me that the assessment report gave any specific attention to the question of which statutory provisions underpinned a decision to reject the proposal.
192 One way of looking at the situation, although not one upon which PRL relied, is that neither the Department nor the Minister took into account the necessity to give the matter further attention until after the decision was actually made. On that view the Department, and the Minister, failed to have regard to a relevant consideration and failed to act in accordance with the Act. Even though that was not the way the case was argued by PRL the question remains how the admitted (indeed asserted) errors may be accommodated, if they can be at all.
193 The respondent submitted, relying upon s 16(1)(a) of the ADJR Act, that the ‘errors’ which were made could be addressed by the Court itself without the whole decision being set aside as erroneous or legally flawed.
194 Section 16(1)(a) of the ADJR Act provides:
‘(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;’
195 It was suggested by the respondent that I could simply set aside the decision made on 27 April 2007 in part – i.e. to the extent that it had effect for ss 16/17B and 23/24A of the Act. I am not satisfied that would be a correct approach to the issue. As the Minister’s delegate had earlier decided that the action was a controlled action (i.e. required approval) and that five sets of provisions were controlling provisions (see s 67 of the Act) the Minister was required by s 130 to decide whether or not to give approval for each of the controlling provisions and not just for some only of them. Any amendment by the Court to delete a reference to some only of the controlling provisions would leave the statutory duty under s 130 unperformed with respect to those provisions.
196 The power in s 16 of the ADJR Act to set aside part of a decision has not received much attention. However, in United Airlines v Secretary, Department of Transport and Communication (1990) 26 FCR 598, Hill J said (at 605):
‘It is true that s 16 of the ADJR Act authorises the Court to make an order quashing or setting aside part of a decision, but that would, in my view, only be in a case where the remaining part of the decision could stand alone if the part set aside were to be severed. Where the consequence of setting aside part of a decision is, as here, that the remaining part of the decision must likewise fall, with the consequence that the whole decision should be set aside, the only proper order of the Court can be that the entire decision be set aside.’
197 The second aspect of the passage arose from the particular facts in that case. The first aspect does not arise directly in the present case but, on one view, does so by analogy. If reference in the decision of 27 April 2007 to ss 16/17B and 23/24A was deleted, could the remaining part of the decision stand alone? The respondent argued that it could. The respondent contended that it would be pointless and inconvenient to require a decision ‘approving’ the proposal for some controlling provisions when the practical effect of refusal for even one set only would be to prevent the proposal going ahead. The respondent pointed to s 133(7) which provides:
‘133 (7) If the Minister refuses to approve for the purposes of a controlling provision the taking of an action by the person who proposed to take the action, the Minister must give the person notice of the refusal.’
and suggested that the statutory obligation would be fully satisfied by modification of the decision so that only the controlling provisions for which the refusal should have been stated to have effect were identified.
198 In my view, this suggested approach pays insufficient regard to the whole of the statutory scheme. Mr Early had decided that the actions proposed by PRL were controlled actions for five sets of controlling provisions including two sets of provisions which PRL had argued were not engaged. The effect of that decision was to expose PRL to statutory sanctions under each of the sets of provisions if it acted without approval. The Minister’s obligation was to make a decision whether or not to refuse approval for each of the controlling provisions which Mr Early had decided were applicable. I do not accept that it was unnecessary to resolve the matter explicitly for each of the controlling provisions. The whole scheme of the Act was directed to providing resolution of PRL’s application with respect to each one of the prohibitions, and not just some of them. I think PRL was entitled to removal of the statutory sanctions which were in place to the extent that refusal of its proposal was not based upon any of the sets of controlling provisions earlier nominated.
199 In my view therefore, if the Court was to edit or re-write the decision in the fashion suggested it would convert it into a decision which did not conform to the Act and which represented a failure to perform a statutory duty. I am not persuaded that the Court has such a power.
200 Moreover, the incorrect reliance on ss 16/17B and 23/24A of the Act in the decision strikes at the whole of the decision and not simply part of it. Once the concession was made that the decision was erroneously made with respect to two sets of controlling provisions, legal error in both the decision and the decision-making process was admitted. That is because the identification of the error also revealed a fundamental defect in the process which was followed, whether discovery of the error revealed a failure to take into account a relevant consideration or, alternatively, simply revealed an error with respect to the application of s 130 of the Act. In those circumstances the power in s 16 of the ADJR Act to set aside part of a decision does not appear to me to be available as was suggested. Whatever view is taken of the status of the Statement of Reasons the decision under challenge should be set aside for that reason independently.
201 In any event, I would not, in the present case, make such an order as the respondent sought as a matter of discretion. Here, the decision was intended to be one which conformed to s 130(1) of the Act. It was affected by admitted legal error so far as it was expressed to have effect for ss 16/17B and 23/24A of the Act. In place of that decision one should be made that has effect one way or the other for each of the controlling provisions. PRL is entitled to know, and have a decision by the Minister about, the extent to which it faces statutory sanctions if it acts without approval and the provisions of the Act under which those sanctions might be imposed. That would not be the result if I was to edit or re-write the decision in the way suggested by the respondent, even assuming power to do so.
SUMMARY OF LEGAL ERRORS IDENTIFIED
202 For the reasons I have explained, the decision of 27 April 2007 must be set aside. The matters I have identified as legal error are:
1. On the evidence, the Minister, in acting upon the advice and recommendations in the briefs dated 2 February 2007 and 19 April 2007, failed to observe a mandatory statutory requirement because it should be concluded that he failed to take into account the environmental impact statement prepared by PRL.
2. In deciding that the decision made on 27 April 2007 took effect for ss 16/17B and 23/24A of the Act the Minister failed to apply the correct statutory tests under the Act.
DISCRETION
203 Even though legal error has been established the remedies sought by PRL are discretionary. It would have been open to the Minister to have accepted a realistically expressed analysis of the kind contained in the Statement of Reasons had it been before him at the time the decision was made. An analysis of that kind might still be accepted if the decision must be made again. However, since the decision was made on 27 April 2007 both the Minister and the political complexion of the Government have changed. The two principal documents which the Minister was required to take into account, the environmental impact statement and the assessment report, stated a final position ‘on balance’. I cannot exclude the possibility that further attention to the matter might result in a different view of where the balance should be struck between the competing priorities which require consideration. Accordingly, I see no reason to withhold relief in the exercise of any discretion, on the basis that it would necessarily be futile.
ORDERS
204 Legal error has been established and the decision made on 27 April 2007 should be set aside in its entirety.
COSTS
205 PRL has not yet made any application for costs. I will hear the parties on costs, if necessary. Normally costs would follow the result, but having regard to the reasons expressed above I have real doubt whether PRL is entitled to all its costs and some doubt whether it is entitled to any order for costs. PRL is to file any application for costs, with a written submission in support, within 14 days. The respondent will have 14 days to respond and PRL will have a further 7 days to reply, if necessary. That issue will be decided on the basis of the written submissions unless a party expressly seeks a further oral hearing.
| I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
Dated: 13 October 2008
| Counsel for the Applicant: | Mr G R Hancy Ms F C Davis |
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| Solicitor for the Applicant: | Kevin Edwards |
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| Counsel for the Respondent: | Dr M Perry QC Mr P Macliver |
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| Solicitor for the Respondent: | Australian Government Solicitor |
| Dates of Hearing: | 5 and 6 February 2008 19 March 2008 26 March 2008 1 May 2008 26 June 2008 20 August 2008 |
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| Date of Final Submissions: | 18 September 2008 |
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| Date of Judgment: | 13 October 2008 |
