FEDERAL COURT OF AUSTRALIA

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113

Citation:

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113

Parties:

BAT ADVOCACY NSW INC v MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS and ROYAL BOTANIC GARDENS AND DOMAIN TRUST

File number:

NSD 884 of 2010

Judge:

COWDROY J

Date of judgment:

17 February 2011

Catchwords:

ADMINISTRATIVE LAW – Application for judicial review under s 5(1) of the ADJR Act of an approval granted by the Minister under the EPBC Act – Whether the Minister failed to take into account relevant considerations – Whether the Minister’s decision was unreasonable.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 13

Associations Incorporation Act 2009 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3(1), 3(2), 16, 17B, 18, 18(4), 18A, 18B, 19, 67, 67A, 68, 75, 78, 80, 82, 96A, 98, 99, 130(1A), 131AA, 133, 136, 139(1), 267, 268, 269, 269A, 270, 527E

Royal Botanic Gardens and Domain Trust Act 1980 (NSW)

Threatened Species Conservation Act 1995 (NSW)

Cases cited:

Alexander and Others v Australian Community Pharmacy Authority and Others (2010) 265 ALR 424

ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 65 ALR 343

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353

Blue Wedges Inc v Minister for Environment, Heritage and the Arts and Others (2008) 167 FCR 463

Booth v Bosworth (2001) 117 LGERA 168

Brown v Forestry Tasmania and Others (No 4) (2006) 157 FCR 1

Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368

Dodds v Comcare Australia (1993) 31 ALD 690

Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675

Minister for Environment and Heritage v Queensland Conservation Council Inc and Anor (2004) 139 FCR 24

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Taveli and Others (1990) 23 FCR 162

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

Parramatta City Council v Hale (1982) 47 LGRA 319

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212

Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126

Traill v McRae (2002) 122 FCR 349

Zhang v Canterbury City Council (2001) 51 NSWLR 589

Dates of hearing:

11 & 12 November 2010

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

167

Counsel for the Applicant:

Mr Lazarus

Solicitor for the Applicant:

Environmental Defenders Office

Counsel for the First Respondent:

Ms Mitchelmore

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Mr Mallon

Solicitor for the Second Respondent:

Department of Environment and Climate Change

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 884 of 2010

BETWEEN:

BAT ADVOCACY NSW INC

Applicant

AND:

MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS

First Respondent

ROYAL BOTANIC GARDENS AND DOMAIN TRUST

Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

17 february 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    Subject to Orders 3 and 4, the Applicant is to pay the costs of the Respondents.

3.    Any party applying for an order for costs different to that provided by Order 2 is to notify the Court within 14 days in which event Order 2 will be vacated and in lieu costs will be reserved.

4.    If any application for costs is made as provided in Order 3 the parties are to consult and prepare consent directions for the filing of submissions and, if required, for a hearing on costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 884 of 2010

BETWEEN:

BAT ADVOCACY NSW INC

Applicant

AND:

MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS

First Respondent

ROYAL BOTANIC GARDENS AND DOMAIN TRUST

Second Respondent

JUDGE:

COWDROY J

DATE:

17 February 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1    These proceedings challenge the validity of a decision made by the Minister for Environment Protection, Heritage and the Arts, the Hon Peter Garrett AM MP (‘the Minister’) on 13 May 2010 (‘the decision’). The decision granted approval to the proposal of the Royal Botanic Gardens and Domain Trust (‘the BGT’), to disperse a colony of Grey-headed Flying-foxes (Pteropus Poliocephalus) (‘GHFF’) from the Royal Botanic Gardens in Sydney (‘the proposal’). The decision was made in the exercise of the Minister’s powers provided by ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the EPBC Act’) and the approval was granted subject to conditions imposed on the BGT.

2    The BGT is a body incorporated by the Royal Botanic Gardens and Domain Trust Act 1980 (NSW).

3    Bat Advocacy NSW Inc (‘BA NSW’ or ‘the applicant’) is an association incorporated on 16 July 2010 pursuant to the provisions of the Associations Incorporation Act 2009 (NSW). The objects of BA NSW are to advocate for the protection, conservation and welfare of animals within the order of Chiroptera (bats) and other associated activities.

4    BA NSW had existed as an unincorporated group since approximately June 2008 and was formed for the purpose of monitoring and responding to all actions which might have an impact upon bats, particularly those which inhabit New South Wales. BA NSW has concentrated its efforts upon the protection and conservation of GHFF. BA NSW engages with government and other interested parties with the aim of achieving optimal outcomes for bat populations which might be affected by government or similar decisions.

5    BA NSW, by Amended Application for an Order of Review filed 17 September 2010, applies to this Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). Section 5(1) of the ADJR Act relevantly provides:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

    (a)    

    (b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

    (c)    

6    BA NSW makes four principal challenges to the Minister’s decision-making process. Such challenges were identified by the parties in an Agreed Statement of Issues as follows:

Did the Minister fail to consider a mandatory relevant consideration, namely any of the following:

a.    the impact of the removal of the GHFF from a ‘critical habitat’ would have on the species;

b.    social matters associated with moving the GHFF to areas outside of the Botanic Gardens, in particular conflict with humans associated with their relocation;

c.    the adverse impacts that the decision would have on the GHFF, being a matter protected by Part 3 of the EPBC Act, due to the duration of the approval; and

d.    information in relation to previous attempts to disperse the GHFF from an area, in particular contained in public submissions responding to [BGT]’s Public Environment Report and in the independent expert report commissioned by the Department.

7    The respondents do not challenge the standing of BA NSW as a ’person… aggrieved’ as referred to in s 5(1) of the ADJR Act. Accordingly the only issue for determination in this application is whether the Minister correctly observed the required procedures under the EPBC Act prior to arriving at his decision.

8    This Court is not empowered to reconsider the merits of the BGT’s proposal, nor is it any part of this Court’s function to reconsider the Minister’s decision. Rather, the issues are confined to the question whether, as a matter of law, the correct processes were followed by the Minister in making his decision.

BACKGROUND

9    The Royal Botanic Gardens (‘the Gardens’) are located within the City of Sydney, 800m east of the Sydney General Post Office. The Gardens are bounded by the Sydney Harbour to the north, Macquarie Street to the west, the Cahill Expressway to the south and Woolloomooloo Bay to the east. The Gardens cover an area of approximately 30 ha.

10    The Gardens are a significant cultural and botanic icon for Australia and the world. The Gardens contain numerous historic and State Heritage Listed specimens which are of cultural, scientific, horticultural and educational value.

11    As early as the mid-1800s, GHFF were recorded as being present in the Gardens. In 1900 they were extensively culled. GHFF returned to the site in 1916 and 1920 until further culling again saw their removal. No further records exist until 1989 when 200 GHFF were recorded as being present. By mid-1992 approximately 3,200 GHFF were recorded in the Gardens and attempts were then made to have them dispersed. Those measures which included the use of plastic bags, lights, sound and sonic deterrence have been of varying effectiveness. Removal attempts, primarily through the use of noise, continued throughout the 1990s. Such removal attempts were of limited effectiveness and the numbers of GHFF have steadily increased since 2000 and peaked in May 2007 when 34,980 GHFF were recorded. The numbers have thereafter fluctuated but in the 12 months following such recording, estimates range from 4,256 in July 2007 to 21,993 in February 2008.

12    The BGT considers that substantial damage is being caused to highly important species of trees located in the Gardens, particularly in the vicinity of an area known as the Palm Grove. The Palm Grove has been described as the oldest and most significant planted area of the Gardens and is approximately 3.5 ha in size. The Gardens are also described as having one of the greatest tree collections in the world, some of which are both difficult to collect and rare. For example, the Gardens has a collection of Kauris and of the Palm Pritchardia maideniana, which are the only known mature specimens anywhere in the world and which has been critical in identifying and rediscovering the Hawaiian population of such species. The Kauris have been greatly affected by the presence of the GHFF colony and certain specimens (including a specimen from the critical ‘type collection’ of an Agathis Moorei) have died. It is estimated that since 1995, 18 State Heritage Listed trees have died and 135 have sustained serious damage to all or part of their canopies. The BGT estimates that 40 trees are unlikely to survive should the GHFF remain in the Gardens.

13    The GHFF also possess ecological significance. The GHFF are listed pursuant to the provisions of both the EPBC Act and the Threatened Species Conservation Act 1995 (NSW) as ‘vulnerable’.

14    According to the information contained on the website (www.environment.gov.au) the GHFF is Australia’s only endemic flying-fox and is present only in the coastal belt from south-east Queensland to Melbourne, Victoria. Occasional sightings have been recorded in specific locations in South Australia and on the islands of Bass Strait and Tasmania. The distribution is confined mainly to the east of the Great Dividing Range.

15    The GHFF is described as one of the largest bats in the world, ranging from 600 g to 1,000 g and having a head and body length of between 230 cm and 289 cm. The head is covered by light grey fur and it has a collar of orange/brown fur fully encircling its neck. The GHFF is described as being important to the health and maintenance of many ecosystems in eastern Australia and performs pollination and seed dispersal for a wide range of native trees, including commercially important hardwood and rainforest species. The GHFF is also said to contribute directly to the reproduction, regeneration and evolutionary processes of forest ecosystems.

16    A national count undertaken in 1989 estimated that between 15 and 23 known GHFF camps were in existence with a combined population of approximately 566,000 Australia-wide.

17    The GHFF requires foraging, resources and roosting sites. A primary food source for the GHFF is blossom from Eucalyptus and related genera. For their foraging needs, the GHFF relies upon a wide range of rainforest fruits. The GHFF also requires roosting sites which are usually located within 15 km of foraging areas. The GHFF are capable of nightly flights of up to 50 km and can cruise at speeds in excess of 35 km per hour for extended periods. They are usually located in camps.

18    The BGT proposed to relocate the colony currently roosting in Palm Grove in the Gardens, and for this purpose identified several alternative locations, although it was acknowledged by the BGT that it could not be certain whether the GHFF would relocate and settle in any specific location. Those possible sites were located in the Sydney metropolitan area and included Ku-ring-gai Flying-fox Camp, the Cabramatta Creek Flying-fox Camp located in the Cabramatta Creek Flying-fox Reserve, the Parramatta Park Flying-fox Camp, the Kareela Flying-fox Camp, the Clyde Flying-fox Camp and the Wolli Creek Flying-fox Camp. The Ku-ring-gai Flying-fox camp is located approximately 13 km to the north and adjoins a larger bushland area known as the Garigal National Park. This site was the preferred relocation area because of its history of integrated management and revegetation and it is comparatively larger (14.6 ha) than the other proposed sites.

19    Other potential sites were identified including the Garigal National Park, Ku-ring-gai Chase National Park, Botany Bay National Park – Kurnell, Lane Cove National Park and the Royal National Park.

STATUTORY APPROVAL PROCESS

20    Section 3(1) of the EPBC Act relevantly defines its objects as follows:

(1)    The objects of this Act are:

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

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

    (c)    to promote the conservation of biodiversity; and

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

    (d)    

21    Section 3(2) of the EPBC Act relevantly provides:

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

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

    (b)    

22    To achieve such objects, the EPBC Act seeks to regulate acts that impact upon threatened species. Section 18(4) relevantly provides:

Vulnerable species

(4)    A person must not take an action that:

    (a)    has or will have a significant impact on a listed threatened species included in the vulnerable category; or

    (b)    is likely to have a significant impact on a listed threatened species included in the vulnerable category.

Civil penalty:

    (a)    for an individual--5,000 penalty units;

    (b)    for a body corporate--50,000 penalty units.

23    Section 18A of the EPBC Act also makes it an offence, with strict liability, for a person to take an action which results in, or will result in, a significant impact upon a species listed as a threatened species.

24    Section 67A of the EPBC Act prohibits a person taking a ‘controlled action’ unless approval has been granted under Part 9 for the purpose of the relevant provision of Part 3 of the EPBC Act. Part 9 of the EPBC Act makes provision for approvals by the Minister to be granted in respect of ‘controlled actions’. Section 67 of the EPBC Act defines a ‘controlled action’ as follows:

What is a controlled action?

An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28AB, be) prohibited by the provision. The provision is a controlling provision for the action.

25    Part 3 of the EPBC Act outlines the statutory requirements for environmental approvals. Section 19 thereof relevantly provides:

Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited

(1)    A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of any subsection of that section that relates to a listed threatened species.

26    Section 68 of the EPBC Act requires that a person who is proposing to take action which ‘the person thinks may be or is a controlled action’ refer the proposal to the Minister for determination whether the action is a ‘controlled action’.

27    Section 75 of the EPBC Act requires the Minister to decide whether the action which is the subject of the proposal referred to him/her is a ‘controlled action’ and determine the relevant controlling provisions.

APPLICATION OF THE LEGISLATIVE FRAMEWORK TO THE FACTS

28    The BGT recognised that its proposed action in undertaking dispersal measures might require approval of the Minister under Part 9 of the EPBC Act. Accordingly on 3 November 2008 the BGT made an application under s 68 of the EPBC Act for such approval. However, the application was withdrawn on the basis that it was considered to be incomplete. A second application, being the proposal which is the subject of the matter currently before the Court, was forwarded to the Minister by the BGT on 11 December 2008.

29    On 11 January 2009 a delegate of the Minister (‘the Minister’s delegate’) within the Commonwealth Department for Environment, Water, Heritage and the Arts (‘DEWHA’) determined that the proposal constituted a ‘controlled action’ under s 75(1)(a) of the EPBC Act (‘the initial decision’). The controlling provisions of the actions were identified as ss 16 and 17B (Wetlands of international importance) and ss 18 and 18B (Listed threatened species and communities). The relevant wetlands to the action were identified as the Towra Point Nature Reserve.

30    As a consequence of the initial decision, the provisions contained in Part 8 of the EPBC Act came to operation. Pursuant to Part 8, the Minister was authorised to choose an appropriate method of assessment for the proposal from the various alternatives listed in s 80 of the EPBC Act. In this instance the Minister’s delegate determined that a Public Environment Report (‘PER’) was the appropriate method.

31    Part 8 of the EPBC Act concerns the assessment of the impacts of controlled actions for the purposes of approval by the Minister. The word ‘impact’ is relevantly defined in s 527E of the EPBC Act as follows:

Meaning of impact

(1)    For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:

    (a)    the event or circumstance is a direct consequence of the action; or

    (b)    for an event or circumstance that is an indirect consequence of the action - subject to subsection (2), the action is a substantial cause of that event or circumstance.

REQUIREMENTS OF A PUBLIC ENVIRONMENT REPORT (‘PER’)

32    Section 96A of the EPBC Act required the Minister to give the BGT written guidelines for the preparation of a draft PER. Such guidelines, known in the EPBC Act as the ‘PER guidelines’, are provided in order to ensure that a draft PER will provide the Minister with sufficient information concerning the action to make an informed decision regarding its approval. Such guidelines were issued on 17 March 2009.

APPLICATION FOR RECONSIDERATION OF CONTROLLED ACTION DECISION BY THE MINISTER

33    Section 78 of the EPBC Act empowers the Minister to reconsider his decision made under s 75(1), namely the decision to deem the proposed action a ‘controlled action’.

34    On 27 April 2009, the BGT approached the Minister and requested a reconsideration of the initial decision under s 78 of the EPBC Act on the basis that substantial new information had come to light following the initial decision. A period of public consultation followed.

35    On 22 June 2009, exercising the Minister’s power pursuant to s 78 of the EPBC Act, a delegate of the Minister revoked the initial decision. The initial decision was substituted with a decision which found that the action was a ‘controlled action’ with ss 18 and 18A as controlling provisions (Listed threatened species and communities). Such decision effectively removed the Towra Point Wetlands from the consideration of the Minister. A PER was again determined to be the appropriate standard for such approval.

36    On 30 June 2009 the PER guidelines were issued by the Minister to the BGT. Thereafter the BGT prepared a draft PER and public submissions were invited between 12 November 2009 and 23 December 2009. Submissions were provided by BA NSW.

37    On 27 January 2010 DEWHA received the BGT’s PER together with a summary of the responses to the public submissions. DEWHA provided its comments on the final PER to the BGT on 5 and 9 February 2010. The BGT then resubmitted an updated PER to DEHWA on 17 February 2010.

38    On 18 February 2010 pursuant to s 130(1B)(d) of the EPBC Act, a 40 day approval period of the PER commenced with the final approval of the PER due on 16 April 2010. On 12 April 2010 DEWHA, pursuant to s 131AA of the EPBC Act, forwarded the Minister’s proposed decision approving the dispersal action with conditions (‘draft approval decision’) to the BGT for comment.

39    In arriving at his proposed decision, the Minister had before him 14 documents as follows:

(a)    Recommendation Report, Relocation of the Grey-headed Flying-Fox colony from the Royal Botanic Gardens, Sydney (EPBC 2008/4646) (‘Draft Recommendation Report’);

(b)    Draft approval decision;

(c)    Finalised PER, public comments and summary of public submissions;

(d)    Correspondence between DEWHA and BGT;

(e)    Re-referral documentation;

(f)    Reconsideration documentation;

(g)    DR G.C. Richards, Department of Environment, Water, Heritage and the Arts ‘An Independent Expert Review of the Public Environmental Report for the Proposal to Relocate Grey-headed Flying Foxes form the Sydney Botanical Gardens’ (March 2010);

(h)    Department of Agriculture, Fisheries and Forestry Australia and Department of Health and Aging, Communicable Diseases Network Australia, ‘Information Leaflet on Australian Bat Lyssavirus’ (2001) ;

(i)    Department of Climate Change and Water NSW, ‘Draft National Recovery Plan for the Grey-headed Flying Fox Pteropus poliocephalus July 2009’ (2009);

(j)    Species Profile and Threats Database Information (SPRAT Profile) of Pteropus poliocephalus – Grey-headed Flying-Fox;

(k)    NSW Department of Environment and Climate Change Flying-fox Camp Management Policy (2007);

(l)    Letter to Robyn Kruk, Secretary, DEWHA from Associate Professor Robert J.S. Beeton AM FEIANZ, Chair, Threatened Species Scientific Committee, Species Listing Section (6 April 2009);

(m)    Various Recovery Plans for listed threatened species and ecological communities across Sydney;

(n)    Department of Environment and Heritage EPBC Act Administrative Guidelines on Significance: Supplement for the Grey-headed Flying fox (2003).

40    Due to the complexity of the draft approval decision, the 16 April 2010 due date for the decision was twice extended pursuant to s 130(1A) of the EPBC Act, during which period DEWHA received comments from the BGT in respect of its draft approval decision. On 16, 22 and 23 April and 5, 6 and 7 May 2010 pursuant to s 131AA of the EPBC Act further submissions were received by DEWHA from the BGT.

41    On 13 May 2010 the Minister approved the BGT’s proposal with conditions. The relevant detailed conditions are discussed in depth later in this judgment.

42    The Minister’s Statement of Reasons (‘the Reasons’) was made available on 11 June 2010 and the BGT received them on 18 June 2010.

GROUND 1: FAILURE TO CONSIDER THAT THE GARDENS ARE A CRITICAL HABITAT FOR THE GHFF

Applicant’s Submissions

43    The applicant submits that the Minister failed to take into account a relevant consideration when exercising his power of approval. That consideration was the impact on the GHFF resulting from their removal from their critical habitat in the Gardens.

44    In support of such claim the applicant submits that the Minister failed to consider a plan entitled the Draft National Recovery Plan (‘the Draft Recovery Plan’) for the GHFF.

45    The Draft Recovery Plan was published in July 2009 pursuant to s 269A of the EPBC Act and was prepared by Dr Peggy Eby in conjunction with the Department of Environment, Climate Change and Water (NSW). Such plan was one of the documents before the Minister when he arrived at his decision.

46    Section 270(1) of the EPBC Act provides:

Content of recovery plans

(1)    A recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species or listed threatened ecological community concerned so that its chances of longterm survival in nature are maximised.

47    Section 270(2) of the EPBC Act relevantly provides:

(2)    In particular, a recovery plan must (subject to subsection (2A)):

    (a)    state the objectives to be achieved (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community); and

    (b)    

    (c)    

    (d)     identify the habitats that are critical to the survival of the species or community concerned and that are under particular pressure of survival and the actions needed to protect those populations; and

    (e)     

48    The applicant submits that the Gardens are a critical roosting habitat, and that the Draft Recovery Plan characterises the loss of a roosting habitat as a high priority threat.

49    The applicant submits that the Minister considered the potential loss of critical habitat to be a relevant matter since the Draft Recovery Plan was included in the materials upon which the Minister’s approval was based. However, the applicant asserts that the Minister did not refer to the Draft Recovery Plan in the decision, nor give any consideration to that document nor to the possible loss of the critical habitat. Furthermore, the applicant submits that the Reasons do not address the critical habitat issue nor do they acknowledge whether the removal of the GHFF would have a significant impact on the species.

50    The applicant further asserts that:

it was impossible for the Minister to form any informed view about whether or not to approve the action without first undertaking an analysis of the impact of the loss of habitat caused by the dispersal.

51    The Minister submits that it cannot be inferred that he did not pay due regard to the Draft Recovery Plan pursuant to s 136(1)(a) of the EPBC Act (set out in paragraph [81] below). However, by such submission the Minister implicitly acknowledges that the Draft Recovery Plan was a relevant consideration. By virtue of s 136(5) the Minister is prohibited from paying regard to any matter which the Minister was not required to consider.

Consideration

52    To resolve the issues raised it is necessary to consider the extensive material which was before the Minister during the approval process.

53    The Executive Summary contained in the PER, which the BGT prepared in October 2009, indicated that there would not be a major adverse impact on the GHFF as a result of the proposed dispersal. It stated:

The loss of the RBGS as a roosting site for the GHFF is unlikely to threaten the species or local population. GHFF are a highly mobile species, regularly changing camps throughout the year in response to food availability, climate and stages of the reproductive cycles. Therefore, it is likely that most GHFF have roosted in multiple camps and know of their locations (Tidemann and Nelson 2004). The proposed relocation has also been tied to coincide with the period when large numbers of GHFF normally leave the RBGS as part of their annual migrations, thus also reducing the number of GHFF likely to be directly affected by the relocation.

54    At 5.2.5 the PER addresses the question whether the Gardens comprise a critical habitat as follows:

5.2.5. Adversely affect habitat critical to the survival of GHFF

The 3.5 ha of habitat currently occupied with the RBGS is not considered to be critical to the survival of this species or its population at a local or national level. Numerous alternative sites within the Sydney metropolitan area have been assessed as providing potential roosting and breeding habitat for the GHFF (see Section 2). Continual consultation with land managers will be undertaken to ensure relocated GHFF settle in site/s that provide long-term habitat and are acceptable to surrounding land users. Existing camps also provide potential habitat, and some camps such as KFFR, CCFFR and Parramatta Park include monitoring of the GHFF camp and continual revegetation in their management plans in order to ensure long-term sustainability of the species and their habitat.

55    By letter dated 22 December 2009 BA NSW forwarded its submissions to the BGT in response to the invitation under s 98 of the EPBC Act to comment upon the draft PER. Such response challenged the statements of the BGT as follows:

In attempting to justify the dispersal of the flying-fox colony, BGT have failed to give due regard to the colony being critical roosting habitat for the survival of the species. Worse, BGT have attempted to minimise the significance of the camp and suggest that it is a poor location for the flying-foxes to roost. In making these claims BGT are apparently unable to cite any references to support their position. We suggest that the Draft National Recovery Plan for Pteropus Poliocephalus, a mature document that has been endorsed by NSW Department of Environment, Climate Change and Water of which BGT is a part, is the most credible reference for a determination of the sites significance and can be cited as an absolute rejection of BGT’s convenient categorisation of the colony.

56    The Draft Recovery Plan under the heading ‘2.4 Habitat critical to the survival of the species’ states:

In order to survive, Grey-headed Flying-foxes require a continuous sequence of productive foraging habitats, the migration corridors or stopover habitats that link them, and suitable roosting habitat within nightly commuting distance of foraging areas (Fleming and Eby 2003).

57    In its above letter dated 22 December 2009, BA NSW drew attention to the significance of the colony stating as follows:

Significance of the colony

The Royal Botanic Gardens Sydney (RBGS) colony of grey-headed flying-foxes is one of the largest of the camps in the Sydney metropolitan area. Occupancy varies seasonally and annually. The recorded peak occupancy of nearly 35,000 (Smith, 2007) presents approximately 8.5% of the total species population. The most recent figure, 21,993, cited by the BGT (Draft PER, page 6) represents in excess of 5% of the total population based on the figure of 400,000 that BGT acknowledge (Draft PER, page 49) to be the upper range of the current total population estimate.

The Draft National Recovery Plan for the Grey-headed Flying-fox Pteropus poliocephalus (Eby, 2008), which has been endorsed by all range states including NSW, indicates that camps meeting at least one of the following criteria should be considered “critical to survival for Grey-headed Flying-foxes” (Draft National Recovery Plan for P. poliocephalus, page 15):

1.    a camp either continuously or seasonally in >50% of years;

2.    has been used as a camp at least once in ten years (beginning in 1995) and is known to have contained >10,000 individuals;

3.    has been used at least once in ten years (beginning in 1995) and is known to have contained > 2,500 individual, including reproductive females during the final stages of pregnancy, lactation or the period of conception (ie. September – May)

It is a matter of record, acknowledged by BGT in the Draft PER, that the RBGS camp has been used continuously for more than 20 years, regularly contains more than 10,000 individuals and is a successful maternity camp. It should also be recognised that the Draft National Recovery Plan notes that “Camps that are critical to the survival of the species may consist of introduced plants (Draft National Recovery Plan for P. poliocephalus, page 15).

On this basis, the RBGS camp clearly falls within the category of a colony that is critical to the survival of the species notwithstanding that it is largely planted with exotic, introduced, species of flora.

58    BA NSW’s letter also argued that the GHFF’s habitat in the Gardens was critical, stating:

Whilst the draft PER cites the Draft National Recovery Plan as a reference on other matters (Draft PER, page 147), it fails to mention, or give due regard to the classification of the camp as of critical importance to the survival of the species.

The Executive Summary of the draft PER states (Draft PER, viii) that:

“The loss of the RBGS as a roosting site is unlikely to threaten the species…”

How does BGT explain the gross inconsistency between their position that the loss of RBGS as roosting habitat does not constitute a threat to the species when the Draft National Recovery Plan for the species, endorsed by NSW DECCW of which GBT is a part, clearly indicates that the camp should be classified as critical to the survival of the species and that loss of roosting habitat is a high priority threat?

Flying-foxes choose camp sites, including RBGS, which will give them maximum access to resources while meeting their other needs.

BGT state (Draft PER, page 29) that:

“We consider that if the flying-foxes choose to roost in a site, then it is reasonable to assume that they consider that site to meet their needs at that particular point in time”.

This statement first appeared in the proposal (reference MEPA034 amended) submitted to DECC, in December 2008, for approval under Section 91 of the NSW Threatened Species Conservation Act. The statement is repeated verbatim in the Draft PER. On this basis, it is reasonable to assume that BGT firmly believes in the validity of this statement.

The contradiction is that BGT use the statement to justify the selection of suitable alternative sites but ignore its relevance to the RBGS camp itself. Based on BGT’s own logic, it is also reasonable to assume that the bats that roost in RBGS “consider that site to meet their needs at that particular point in time” (Draft PER, page 39).

59    BA NSW’s letter disagreed with the BGT’s claim that the GHFF’s post-dispersal location was likely to constitute a ‘provision’ of similar habitat. The letter continued:

In fact, the BGT intend to deny the GHFF a roost in RBGS, 3.5ha of roosting habitat that is critical to the survival of the species, and no new habitat will have been created to offset that loss. The BGT have made no attempt to prepare habit [sic] that has the same micro climate or the same close access to the same excellent foraging areas as exists in RBGS.

The loss of this habitat has a number of direct and indirect impacts on the population of GHFF that will be denied the roosting habitat currently afforded by RBGS.

60    The letter then provided examples of unsuccessful attempted relocations in the Maclean Rainforest Reserve and in Singleton, NSW. BA NSW stated that in both situations, the GHFF eventually re-colonised the initial habitat as there were no credible alternative roost sites available.

Summary Report

61    A Summary Report was prepared by the BGT in January 2010 in answer to the public invitation to comment on the PER. The Summary Report addresses the loss of critical habitat as follows:

Whilst the RBGS meets the need of the camp at present, it cannot sustain continual occupation in perpetuity. Firstly, the camp already occupies 3.5 ha of the densest planted area in the Gardens (i.e. the Palm Grove, Rainforest Walk, and the Begonia beds), and there is no scope for the expansion of the planted area as this would encroach on lawns and other amenities essential to the enjoyment of visitors to the RBGS. There is little opportunity for the RBGS camp to move within the Gardens to allow degraded/damaged trees and understorey to regenerate. BGT cannot plant a comparable area without dramatically altering the current layout. Even if the BGT were to disregard historic, scientific and aesthetic factors in future plantings, as well as State Heritage legislation such as the NSW Heritage Act 1977 or the Royal Botanic Gardens and Domain Trust Act 1980, any planting would take at least 20 years to be mature enough to support flying foxes. Secondly, many of the figs in the Eastern Suburbs such as Woollahra, and the figs in Centennial Park, Hyde Park and the Domain, were planted in the 19th and early 20th centuries, and are near the end of their lifespan, and may be removed in the near future. Figs are a reliable source of food for the RBGS camp (Smith, 2007). The availability of reliable food for the flying foxes is likely to decrease with time.

62    In accordance with s 99 of the EPBC Act, the final PER which included the Summary Report, was duly forwarded to DEWHA on 27 January 2010. DEWHA then decided to seek advice from an independent expert Dr Greg Richards who was instructed on 12 February 2010 to prepare a report in respect of the proposal.

Report of Dr GC Richards

63    In his report submitted to DEWHA on 22 March 2010 Dr Richards referred to limitations upon his instructions, stating:

My brief, however, was to review the procedures that have been proposed in the Public Environmental Report (PER) to ensure that any potential impacts likely to occur in relation to the relocation of Grey-headed Flying-Foxes are minimized, or do not occur.

64    Dr Richards cautioned against the proposal, stating as follows:

Likelihood of repeated disturbance

There is a high probability hat [sic] the first sites that the RGBS colony occupy will not satisfy a successful final outcome that would be desired, for example the colony relocating to a prime location in a national park. The initial response when a flying fox colony in the Melbourne Botanic Gardens was relocated through disturbance, was to fragment into smaller groups throughout the city and beyond. Repeated disturbance was required to remove bats from these unsuitable locations.

65    Dr Richards made no explicit conclusions which suggest that he regarded the GHFF habitat within the Gardens as vital to the species and summarised his findings as follows:

I am of the opinion that this proposal will not be totally successful, and will create a number of issues that will impact upon this Grey-headed Flying Fox population. These include:

    A significant loss of the reproductive output of the colony through stress-induced abortion and the abandonment of mother-dependent young

    Disruption to other colonies to which relocation has not been approved by land managers, resulting in that entire colony having to be relocated, hence having the potential to affect a greater population that has been assessed in the PER

    Disruption to residents adjacent to a new camp formed by the RBGS colony or parts thereof, which will result in further relocation being required; that is, multiple relocations are possible

66    Significantly Dr Richards referred to the fact that the PER made no assessment of failed relocation attempts at Maclean and at Singleton and only assessed the positive experience of the Melbourne Botanic Gardens relocation.

Proposed Decision Brief

67    On 31 March 2010 DEWHA prepared a Decision Brief and draft Approval for the Minister. The Decision Brief specifically referred to the Draft Recovery Plan, and contained the following advice to the Minister:

There is a draft national recovery plan for the GHFF dated July 2009. (Attachment 1). Section 139(1) of the EPBC Act requires, among other things, that 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, you must not act inconsistently with a recovery plan. However, this plan has not yet been made or adopted by you under section 269A of the EPBC Act and therefore, at the time of recommending this action be approved with conditions, the requirement for you to not act inconsistently with it under section 193(1) is not a relevant consideration in relation to your decision on whether to approve the taking of the action. However, it is appropriate for your to consider the draft plan as part of the decision making process.

68    On 12 April 2010 the draft Approval was forwarded to the BGT for comment. Comments were received which related to the process of dispersal of the GHFF colony.

Recommendation Report

69    Having drawn the attention of the Minister to the desirability of considering the Draft Recovery Plan as part of his decision making process, a draft Recommendation Report was prepared for the Minister. The draft Recommendation Report made reference to the Draft Recovery Plan as follows:

5.5 Draft national recovery plan for GHFF

47. The overall objectives of the draft recovery plan (Attachment I) are to reduce the impact of threatening processes, to arrest decline throughout their range, conserve their functional roles in seed dispersal and pollination of native plants, and to improve the comprehensiveness and reliability of information to guide recovery.

48. Specific objectives aim to identify, protect and enhance key foraging habitat, substantially reduce deliberate destruction associated with commercial fruit crops, reduce negative public attitudes and conflict with humans, and to involve the community in recovery actions where appropriate.

49. Actions to meet these objectives incorporate principles of sustainable development and promote procedures to minimise significant adverse social and economic impacts, such as the use of environmental incentive schemes and equitable cost-sharing arrangements.

50. Conservation advice does not exist for GHFF. A 2003 policy statement has been prepared for GHFF, which mainly covers commercial crops and quotas for culling.

70    The final Recommendation Report prepared for the Minister referred to the dispersal method adopted by the Royal Botanic Gardens in Melbourne and at other locations such as Maclean. It drew attention to the fact that both attempted dispersals enjoyed only mixed success.

71    Under paragraph 6.6 of the Recommendation Report, reference was made to the Draft Recovery Plan for GHFF. The Recommendation Report repeated the identical advice contained in the Decision Brief concerning the Draft Recovery Plan, but omitted the last sentence contained in the Decision Brief, namely: ‘However, it is appropriate for you to consider the draft plan as part of the decision making process’. Paragraph 6.6 of the final Recommendation Report relevantly states:

However, this plan has not yet been made or adopted by you under section 269A of the EPBC Act and therefore, at the time of recommending this action be approved with conditions, the requirement for you to not act inconsistently with it under section 139(1) is not a relevant consideration in relation to your decision on whether to approve the taking of the action.

Summary of the Minister’s Approval

72    The Minister’s approval was granted for the following action:

Relocation of Grey-headed Flying-foxes (Pteropus poliocephalus) from the Royal Botanic Gardens, Sydney and follow up disturbance.

73    The approval was granted subject to conditions and was stated to have effect until 2039. Condition 1 provided:

The person taking the action must undertake the action in accordance with the conditions of this approval and as described in the final Public Environment Report. Where the final Public Environment Report and these conditions are contradictory, these conditions shall prevail to the extent of the contradiction.

74    The conditions accompanying the approval were categorised as being relevant to one of the four stages of the dispersal process: prior to dispersal, during dispersal, during re-dispersal and subsequent to the successful relocation of the GHFF colony. A close analysis of such conditions demonstrates the Minister’s consideration of the impact of the relocation on the GHFF from the Gardens.

75    In respect of the period prior to dispersal the conditions imposed an obligation upon the BGT to establish an independent observer group which is to provide an estimate to an independent expert panel of the number of GHFF in the Gardens two weeks prior to any dispersal activity commencing, to ensure that all appropriate and necessary animal ethics approvals are received and to ensure that in the two weeks prior to the commencement of the dispersal, to require 1% of the entire GHFF colony in the Gardens are fitted radio-tags and thumb-banded. The conditions also require that at least 60% of those are to be female and in the event that the total colony estimate changes by more than 10% in the two weeks prior to the commencement of action, any associated changes to the number of GHFF to be radio tagged are to be approved by the panel.

76    The conditions further require either 10% of the total GHFF colony in the Gardens or 400 GHFF to be banded, 60% of which must be female. Such conditions are contained in Condition 2.

77    Conditions 3 to 11 of the Approval restrict any action to disperse and re-disperse the GHFF to a period between 1 May and 31 July in any given year. Conditions also apply in relation to reporting to the Minister. In particular, condition 5 provides:

The person taking the action must ensure daily counts of the GHFF colony to be dispersed or re-dispersed are undertaken between 1 May and 31 July, every year for the life of the action. Once a week during this period the count must be overseen, and verified for accuracy, by a member of the independent observer group.

78    Condition 12 envisages that the new colony or colonies of GHFF formed as a result of the dispersal from the Gardens may need to be re-dispersed. Thereafter conditions apply in relation to the re-dispersal. For example, condition 13 imposes rules which must be observed in the event of certain occurrences, for example if activities took place on days of extreme heat (exceeding 40°C).

79    The Approval also contained conditions (namely conditions 13 and 14) to assist in determining whether the relocation of the GHFF colony was successful (such conditions are reproduced in full in paragraph [111] hereunder).

80    Definitions are contained at the conclusion of the approval. For present purposes, the Court notes the following definitions:

Dispersal: refers to actions taken to disperse GHFF from the Botanic Gardens during 1 May – 31 July 2010 using the noise disturbance measures as described in the final PER.

Re-dispersal: refers to actions taken to disperse GHFF (a) from the Botanic Gardens in years after 2010 and/or (b) at the sites outside of the Botanic Gardens, in a new colony or colonies of GHFF formed as a result of dispersal or redispersal activity from the Botanic Gardens.

Life of the action: Until condition 14 is met or on the expiry date of this approval.

Legislative Framework

81    Section 136(1) of the EPBC Act relevantly provides:

General considerations

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.

82    The above requirements are stated to be ‘mandatory considerations’.

83    Section 136(2) refers to the factors that need to be considered and relevantly provides:

2)     In considering those matters, the Minister must take into account:

    (a)    the principles of ecologically sustainable development; and

    (b)    the assessment report (if any) relating to the action; 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

    

84    The principles of ‘ecologically sustainable development’ are defined in s 3A of the EPBC Act, relevantly as follows:

Principles of ecologically sustainable development

The following principles are principles of ecologically sustainable development:

(a)    decisionmaking processes should effectively integrate both longterm and shortterm 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 intergenerational 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 decisionmaking;

(e)     improved valuation, pricing and incentive mechanisms should be promoted.

85    With regard to threatened species and endangered communities, s 139(1) of the EPBC Act relevantly provides:

Requirements for decisions about threatened species and endangered communities

(1)    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)    

    (b)    a recovery plan or threat abatement plan.

86    Chapter 5, Part 13, Division 5 of the EPBC Act contains provisions in Subdivision A entitled ‘Recovery Plans and Threat Abatement Plans’. The simplified outline of the subdivision contained in s 267 of the EPBC Act explains the purpose of such plans as follows:

Recovery plans for listed threatened species and ecological communities and threat abatement plans for key threatening processes bind the Commonwealth and Commonwealth agencies.

The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed. The Minister may, at any other time, decide whether to have such a plan.

The Minister need ensure a threat abatement plan is in force for a key threatening process only if the Minister decides that a plan is a feasible, effective and efficient way of abating the process. The Minister must consult before making such a decision.

A recovery plan or threat abatement plan can be made by the Minister alone or jointly with relevant States and Territories, or the Minister can adopt a State or Territory plan. There must be public consultation and advice from the Scientific Committee about the plan, regardless of how it is made or adopted.

87    Section 268 of the EPBC Act provides:

Compliance with recovery plans and threat abatement plans

A Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan.

88    Section 269 of the EPBC Act provides for the implementation of a Recovery Plan and requires the Commonwealth to seek the co-operation of any State or Territory with a view to implementing the plan on land outside Commonwealth areas. The making or adopting of a Recovery plan is contained in s 269A of the EPBC Act.

Was there an obligation to consider the Draft Recovery Plan?

89    Pursuant to s 136(1)(a) of the EPBC Act the Minister was required to consider any matter protected by a provision of Part 3 ‘that the Minister has decided is a controlling provision for the action’. Pursuant to s 139(1)(b) of the EPBC Act, the Minister was only required to ‘not act inconsistently with’ a Recovery Plan. However, s 139(1)(b) would not prohibit the Minister from acting inconsistently with a draft of such plan since it remains a draft only until its adoption under s 269A(7) of the EPBC Act.

90    Significantly, pursuant to s 136(5) of the EPBC Act the Minister is prohibited from considering any matter which he is not required or permitted to consider under Division 1 Part 9 of the Act.

91    The advice provided to the Minister in the proposed Decision Brief prepared under s 131AA of the EPBC Act drew his attention to the existence of the draft and correctly advised him that:

the requirement for you to not act inconsistently with it under s 139(1) is not a relevant consideration in relation to your decision on whether to approve the taking of the action. However it is appropriate for you to consider the draft plan as part of the decision making process.

92    The Court notes again that the final Recommendation Report omitted the last sentence, namely that it was appropriate for the Minister to consider the Draft Recovery Plan.

Legal Principles

93    In making a decision under the provisions of the ADJR Act, the Administrative Appeals Tribunal is not under an obligation to ‘isolate in its reasons every issue of fact and record a specific finding in respect of each of them’: see Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 per Foster J at 370. His Honour continued (at 370):

It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.

94    To similar effect, see Alexander and Others v Australian Community Pharmacy Authority and Others (2010) 265 ALR 424 at [75]-[76]; Minister for Immigration and Ethnic Affairs v Taveli and Others (1990) 23 FCR 162 at 178-179.

95    In Dodds v Comcare Australia (1993) 31 ALD 690 Burchett J said at 690:

So far as the argument is based on the proposition that the tribunal failed to take relevant matters into account, the court should not ignore the consideration that a matter which has been passed over in silence in the tribunal's reasons is not therefore to be assumed to have been overlooked. Of course, in a particular case it may be inferred that the matter was overlooked, or perhaps that it was thought to be unimportant. But a court or tribunal may omit to mention something it has nevertheless had well in mind in reaching its decision. This proposition was emphatically asserted by Lord Simonds in Watt or Thomas v. Thomas [1947] AC 484 at 492 in a passage cited in Westpac Banking Corporation v Spice (1990) 12 ATPR 51,386 at 51,398.

96    Although the above authorities apply to the decisions of a tribunal, they may be applied by analogy to ministerial decisions. In Blue Wedges Inc v Minister for Environment, Heritage and the Arts and Others (2008) 167 FCR 463, North J said at [123]:

The mere fact that not every issue was addressed in the statement of reasons or in departmental advice contained in departmental briefs does not prove that the material was not considered by the Minister. There are other explanations for the absence of mention of the matters in the statement of reasons. The Minister may have excluded some on the basis that they were not sufficiently important, or that the environmental concern was not sufficiently in question to warrant express mention.

97    Whether the inference can be drawn that the Minister in this instance overlooked the impact of the dispersal upon the GHFF and more particularly omitted to consider the Draft Recovery Plan will depend upon an analysis of the Minister’s decision. In ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 65 ALR 343, Burchett J, considering a decision made under s 13 of the ADJR Act said (at 349):

Section 13 is a crucial provision designed to ensure that the basis upon which a decision is made is able to be seen, so that its legality can be determined. It should not be viewed by any decision-maker as a threat to be evaded by a camouflage of obscurity. All it requires to be set out is a statement of the matters the administrator must have considered in making the decision in the first place - what he found the facts to be, what material he considered in arriving at those findings, and the reasons for his ultimate decision.

It would be wrong for courts to construe reasons in any overly critical spirit, forgetful that they are the reasons of an administrator, not of the draftsman of an Act. But it would be as bad to betray the aims of the Administrative Decisions (Judicial Review) Act, by ignoring what has been required by the Parliament to be disclosed in the interests of just and lawful (and not merely unassailable) administration.

98    In Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126, Fox J at 127 observed that:

It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that has escaped his attention.

99    In Kentucky Fried Chicken Proprietary Limited v Gantidis and Another (1979) 140 CLR 675 at 685 Stephen J referred to the circumstances in which the decision was made and whether the decision maker was required to provide reasons. That is, as observed in Alexander and Others v Australian Community Pharmacy and Others, ‘the nature and content of the obligation is to be considered’ (see Bromberg J at [62]).

100    Where a statement exists to the effect that the decision maker reviewed all of the material put before it, such statement tends to suggest that the decision maker did so: see Kentucky Fried Chicken at 686; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 and Traill v McRae (2002) 122 FCR 349. Yet ‘mere advertence to a matter required to be taken into consideration is not sufficient’ with regard to a decision made under the Environmental Planning and Assessment Act 1979 (NSW): see Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [64]; Parramatta City Council v Hale (1982) 47 LGRA 319.

Assessment of Critical Habitat

101    Significantly the Minister stated in his Reasons that his findings were based on evidence provided to him in the Decision Brief which specifically included the Draft Recovery Plan. While the Minister did not otherwise expressly refer to the Draft Recovery Plan in his Reasons, or state that the Gardens constituted a ‘critical habitat’, the numbers of GHFF located in the Gardens were known to the Minister, as well as the deteriorating condition of their habitat. The Summary Report to the PER also records that the camp in the Gardens is but part of a wider Sydney population.

102    The PER referred to the findings of a Sydney tree expert, Judy Fakes, made in 2005 that the heritage trees in Palm Grove would continue to die unless action was taken, and that the loss of the 3.5 ha habitat from the Gardens would be compensated by the provision of similar habitat which is available for long-term management. The Summary Report included the following:

The proposed action would not decrease or adversely affect the overall quality of habitat for this species, and is therefore not considered to cause a significant population decline.

103    A ‘key threatto the GHFF identified by DEWHA in the Recommendation Report was ‘loss and fragmentation of habitat which results in the decrease of food sources and roosting sites’. Based upon such evidence, it was open to the Minister to conclude that unless action was taken to relocate the GHFF, the continued deterioration of their habitat within Palm Grove would result in potentially severe decreases in food sources and suitable roosting sites.

104    Additionally, the Executive Summary to the PER referred to the migratory nature of the GHFF. The relevant portion of the Executive Summary is reproduced in [53] above.

105    The Recommendation Report stated that ‘dispersal may result in fragmentation of the GHFF population into 2 or more populations elsewhere and it is also possible that the population may join other GHFF colonies’. However such potential adverse impacts were to be managed by the BGT as proposed in 6.1.1.7.2 of the Recommendation Report which provided, inter alia:

113. The BGT have proposed a research, monitoring and management program which involves monitoring the movement, population, stress levels and reproductive output of a sample of GHFF at the Royal Botanic Gardens to determine the impact of the dispersal on the colony. Various measures have been proposed that will be undertaken prior, during and after dispersal. The BGT have proposed a number of measures to monitor increased stress levels as a result of the dispersal including observed behaviour, observation of aborted foetuses, abandoned young, and injured and dead GHFF.

114. The proponent has established a steering committee to oversee the dispersal. The role of the steering committee is to guide the dispersal proposal through the planning, implementation, and evaluation phases, in order to ensure the best chances of success, and to maintain transparency throughout the entire process. The functions that the committee members are to perform include: provide advice and stakeholder input, review and provide feedback on the content of documents, ensure the process follows relevant procedures for dispersal, consultation and reporting to the director and executive director of the BGT.

115. The original method proposed by the BGT was to include static and fly-out counts and radio-tracking movement by fitting 50 adult GHFF with radio trackers and 400 adults with bands. This represents 1% and 8% of the population of based on the population being 5,000 to 7,000 GHFF, this however may not be adequate is [sic] there is an influx of GHFF prior to dispersal. As a result of the negotiation of the draft conditions of approval, this has been revised which is discussed below and at Attachment A.

106    The Recommendation Report also referred to the identification by the BGT of potential sites to which the GHFF may relocate. Some 213 sites were suggested, each being identified by patches of vegetation that would be potentially suitable for the GHFF and each site was assessed according to criteria known to influence their roost selection.

107    The Minister also had before him the Report of Dr GC Richards. Such report was to provide recommendations to ensure that any potential impacts likely to occur in relation to the relocation of Grey-headed Flying Foxes are minimalised, or do not occur’. While the report did identify previous failed relocation attempts of GHFF, Dr Richards did not suggest that the loss of the Gardens would be, of itself, a matter which would be destructive to the GHFF.

108    Section 82(1) of the EPBC Act defines the ‘relevant impacts’ of an action. Section 82(1) relevantly provides:

(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.

109    An action has a ‘significant impact’ if the impact is ‘important, notable, or of consequence having regard to its context or intensity’: see Booth v Bosworth (2001) 117 LGERA 168 at [99]. As was stated by Marshall J in Brown v Forestry Tasmania and Others (No 4) (2006) 157 FCR 1 at [300], the EPBC Act requires a construction ‘which views protection of the environment as an act of not merely keeping threatened species alive, but actually restoring their populations so that they cease to be threatened’.

110    In his Reasons the Minister describes the mitigation measures to be taken during implementation of the proposal, as contained in conditions 2 and 3. Those matters include limiting the dispersal period to the ‘safe window’ between May and July and the fitting of 100 radio and satellite tags to monitor the movements of a representative sized sample of the GHFF colony.

111    The conditions require that 60% of such tags be fitted to females to ensure efficiency in monitoring breeding of successfully relocated colonies and stipulate that dispersal action must cease if the colony has not dispersed within 31 days. Cessation of the dispersal action is to occur in the event that deaths and/or multiple injuries to GHFF are found within one kilometre of the dispersal or redispersal sites. Further, the approval conditions impose on the BGT a rigorous regime of monitoring post-dispersal. Such is evident from conditions 13 and 14 which are set out in full hereunder:

13. In the event that GHFF disperse from the Botanic Gardens to a site from which they need to be re-dispersed, the person taking the action must:

a)    ensure that on days when temperatures are predicted to reach 40°C or more, at sites where adequate vegetation cover is not present, as determined by the panel, and GHFF may consequently be exposed to heat-stress and/or death, water tankers and operators must be present to mist spray the GHFF; and

b)    in that local council area where GHFF have established, the person taking the action must undertake a public awareness campaign which must include information on:

(i)    the action and where the GHFF originated;

(ii)    the status of the GHFF as a nationally threatened species and the associated protection afforded under the Environment Protection and Biodiversity Conservation Act 1999;

(iii)    information on what should be done if members of the public come across GHFF, including injured and dead GHFF; and

(iv)    identifying the associated potential human health issues and risks to people, including Hendra Virus and Lyssavirus and appropriate preventative measures.

Successful re-location of the Botanic Gardens GHFF colony

14. The person taking the action must act in accordance with these conditions of approval, until such time as the successful re-location of the Botanic Gardens GHFF colony can be demonstrated in a report. The report must be accompanied by written and signed support from the panel, submitted to and approved by the Minister.

Successful re-location can be demonstrated if, for each year that dispersal or re-dispersal activity is undertaken in the Botanic Gardens;

a)    80% of the colony present at the commencement of dispersal or re-dispersal activity in that year, as determined by the monitoring of GHFF as per conditions of this approval, are residing in habitat:

(i)    of a sufficient area, nature and quality to support the permanent occupation by the GHFF colony present; and

(ii)    that is located within 50km of foraging habitat of a sufficient area, nature and quality to support the foraging requirements of the GHFF colony present; and

(iii)    with canopy, mid and under-storey vegetation sufficient to ensure that minimal GHFF will die from heat stress during days of air temperatures above 40°C; and

(iv)    that is located in an area where the (human) community will not require the new GHFF colony or colonies to be re-dispersed as determined by the panel; and

(v)    where more than 70% of adult GHFF females in each new colony are breeding each year for a minimum of 3 consecutive years – a member of the independent observer group must oversee and verify the collection of this data; and

b)    the person taking the action has prepared and committed funding for the implementation of a vegetation rehabilitation plan for the necessary sites (as determined by the panel) of the new GHFF colony or colonies from the Botanic Gardens within the Sydney region. The vegetation management plan must detail commitments as to the provision of expert advice in seed collection, horticulture and ecology at the sites. The person taking the action must provide for up to $10,000 per year (including in kind contributions) for a period of 5 years to fund activities implemented under the vegetation rehabilitation plan.

112    The Court also notes that the Minister had before him the material contained in paragraph 5.2.5 of the PER (reproduced at paragraph [54] above) which informed him that the existing Palm Grove habitat was ‘not considered to be critical to the survival of this species or its population at a local or national level’. The PER further stated at paragraph 5.2.7 that the Gardens ‘is not a sustainable habitat for the GHFF and the animals would eventually leave when the Palm Grove is too degraded’.

113    However, counsel for the Minister submitted that:

So there’s no dispute that this is critical habitat, and that loss of that area is a significant impact. The question then was, well, given that it is a significant impact, look at what is proposed and consider whether or not what is proposed will be sufficient to address that impact. If it’s not, can further conditions be imposed to address that impact? If not, to the satisfaction of the Minister, the action won’t be approved. So it’s a fundamental part of the consideration process, in my submission.

Finding

114    The issue for determination is whether the Court is satisfied that the Minister did in fact consider the potential impact on the GHFF due to their removal from the Gardens and the Draft Recovery Plan under s 136(1) as relevant considerations to the matter protected by Part 3 of the EPBC Act.

115    There are indicia which suggest that the Minister did consider the Draft Recovery Plan. The Minister was expressly referred to the Draft Recovery Plan at 5.5 of the final Recommendation Report prepared for the Minister. The Draft Recovery Plan itself was also attached to the Recommendation Report.

116    Further, the Reasons relevantly state:

27.    Evidence or other material on which my findings were based consists of the final approval decision brief prepared by the Approvals and Wildlife Division of my department and signed by me on 13 May 2010, which included the following:

a.    The proposed approval decision brief, signed on 12 April 2010 by me, including:

    

viii.    the document titled ‘Draft National Recovery Plan for the Grey-headed Flying-fox (2009)’;

117    The absence of any further express reference in the Reasons to the Draft Recovery Plan and the advice to the Minister that he need not consider the Draft Recovery Plan (as referred to in the final Recommendation Report) raises the question whether the Minister in fact paid any regard to the Draft Recovery Plan. What is clear is that the Draft Recovery Plan was part of the material presented to the Minister, and the Minister acknowledged that such plan was relevant to his ultimate decision.

118    The Minister was required to consider ‘matters relevant’ under s 136(1)(a) of the EPBC Act. Based upon the above evidence and the numerous and detailed conditions which the Minister formulated to protect the GHFF, the inference can be drawn that the Minister did consider the criticality of the Palm Grove habitat to the GHFF.

119    Further, the extensive requirements for monitoring the GHFF colony post-dispersal demonstrate that the Minister was fully aware of the potential adverse impacts upon the GHFF, and illustrates his concerted effort to minimise such impacts.

120    The fact that the Draft Recovery Plan was not expressly referred to in the Reasons, other than by inclusion in the list of documents upon which the Minister based his decision, does not satisfy the Court that the Minister did not pay regard to the loss of the existing critical habitat of the GHFF in the Gardens: see Blue Wedges Inc at [123] as reproduced in paragraph [96] above.

121    The inference can also be drawn that the Minister did give adequate consideration to the Draft Recovery Plan since the loss of the Gardens as a roosting site was specifically referred to in the Recommendation Report.

122    The Draft Recovery Plan did not constitute a ‘Recovery Plan’ as referred to in s 139(1)(b) of the EPBC Act, since it remained purely a draft. Accordingly, the constraint imposed by s 139(1) did not apply. Nevertheless, the Minister was entitled to have regard to the Draft Recovery Plan pursuant to s 136(1) as a matter relevant to his consideration. Such consideration was not prohibited by s 136(5) of the EPBC Act.

123    The Minister concluded that the proposed action should be attempted if the GHFF could be acceptably and safely dispersed in order to prevent ongoing damage being occasioned to the internationally significant trees within the Gardens.

124    In view of the above findings, the Court rejects the submission that the Minister failed to consider the loss of the GHFF habitat in the Gardens and the draft Recovery Plan in making his decision.

GROUND 2: FAILURE TO CONSIDER CONFLICT WITH HUMANS AND OTHER SOCIAL CONFLICTS

Applicant’s Submissions

125    The applicant submits that the Minister failed to take into account a relevant consideration, namely the social matters and the associated community conflicts resulting from the dispersal of the GHFF to areas outside the Gardens. The applicant refers to the provisions of s 136(1)(b) of the EPBC Act which requires the Minister when making a decision to consider ‘economic and social matters’.

126    The applicant submits that the conflict between humans and the GHFF is an ongoing and increasing problem; that the dispersal is likely to create a situation of conflict with the human community and to exacerbate ongoing community conflicts at existing NSW GHFF camps at Ku-ring-gai, Kareela and Oakley. The applicant acknowledges that the Minister has considered the social matters in terms of the impact of the GHFF on the Gardens and the social benefits of the relocation to the Gardens’ collection of plants and upon tourism, but claims that the Minister has not considered the negative conflicts that will occur upon relocation of the GHFF. The applicant also submits that the Minister has not considered the communities which currently experience conflict as a result of GHFF camps.

127    The applicant submits that since redispersal from undesirable sites can only be undertaken between 1 May and 31 July in any given year, social conflicts may remain unresolved for a significant period of time should the GHFF relocate to an unsustainable location. It is submitted that such conflicts might result in unregulated and illegal action taking place during the birthing, raising and mating and would pose an ongoing threat to the GHFF.

128    The applicant’s submissions made on 22 December 2009 to the BGT refer in detail to conflicts already existing in the Sydney metropolitan area between residents and GHFF camps at Kareela. The submissions also emphasise the potential risk to the GHFF if their foraging habitat is relocated towards the Hawkesbury River area where fruit crops exist and licences have been issued to cull them.

Finding

129    The portion of the Reasons under the heading ‘Social and Economic Matters’ demonstrates that the Minister has given due regard to information on social matters identified in the PER and in public submissions.

130    In his Reasons, the Minister referred to the itemised concerns based on public submissions and letters received by him. One of such concerns was: ‘c) relocation of GHFF to inappropriate sites such as backyards and/or commercial fruit crops’.

131    In the Recommendation Report prepared for the Minister, DEWHA referred to the conflict between the GHFF and land owners. Such report noted that as provided in the PER, the BGT will be required to undertake continual consultation with land managers at future GHFF relocation sites and provide long-term habitat at such sites to ensure that the relocation is acceptable to existing land users.

132    The Recommendation Report also specifically referred to this subject-matter when it stated (at 6.1.1.3):

In urban and peri-urban areas conflict between the habitat and foraging needs of GHFF and land owners is a wide spread and ongoing issue.

133    Conditions 13 and 14 of the approval (set out in paragraph [111] above) are directed to this very issue. Condition 13 provides, inter alia, that in the event that the GHFF disperse to a site from which they need to be then re-dispersed, the BGT must implement and abide by certain safeguards. Condition 14 requires that the BGT will not be taken to have successfully undertaken the action unless it can be shown that 80% of the colony present at the commencement of the dispersal or re-dispersal in any given year is located in an area ‘where the (human) community will not require the new GHFF colony or colonies to be re-dispersed as determined by the panel’.

134    The proposed continual monitoring and consultation measures were before the Minister. The PER (clause 5.2.5) refers to the following:

Continual consultation with land managers will be undertaken to ensure relocated GHFF settle in site/s that provide long-term habitat and are acceptable to surrounding land users.

135    In these circumstances the Court is unable to accept the applicant’s submission that economic and social matters were not considered by the Minister.

GROUND 3: FAILURE TO CONSIDER IMPACTS RESULTING FROM THE TIME PERIOD OF APPROVAL

Applicant’s Submissions

136    The applicant submits that the Minister failed to take into account all adverse impacts, present and throughout the duration of the approval, that the approval would have on matters protected by Part 3 of the EPBC Act. The approval is stated to remain effective until 2039.

137    The applicant submits that the time period of the approval was a mandatory consideration. BA NSW relies upon s 133(2) of the EPBC Act which relevantly provides:

(2)    An approval must:

    (a)    be in writing; and

    (b)    specify the action (including any alternative proposals approved under subsection (1A)) that may be taken; and

    (c)    name the person to whom the approval is granted; and

    (d)    specify each provision of Part 3 for which the approval has effect; and

    (e)    specify the period for which the approval has effect; and

    (f)     

138    Since the approval was required to ‘specify the period for which the approval has effect’, the applicant submits that it was necessary for the Minister to consider the impact on the GHFF population throughout the duration of the approval. The applicant relies upon the fact that the Reasons contain no discussion of the duration of the approval nor do the Reasons illustrate whether the Minister took into account the impact on the GHFF over such a prolonged period.

139    The applicant submits that the PER also fails to address such issue, stating only that ‘… ongoing disturbance within the (Royal Botanic Gardens) may also be required in perpetuity to prevent the GHFF from re-establishing a camp at this site’. The applicant refers to the PER which recognises the need for ongoing ‘pre-dawn dispersal from 1-3 hours before sunrise until there are no signs of re-establishment’.

140    The applicant acknowledges that condition 14 in the final Recommendation Report defines successful ‘relocation of the Botanic Gardens’ GHFF colony’. The applicant refers to the final Recommendation Report which foreshadows that the BGT would continue ongoing dispersal when required to prevent re-establishment of the colony within the Gardens. However, the applicant submits that the term of 29 years is not referred to in the final Recommendation Report, leading to the implication that such Report recommends that the action be approved indefinitely.

141    The applicant relies upon Minister for Environment and Heritage v Queensland Conservation Council Inc and Anor (2004) 139 FCR 24 which held that the Minister was required to consider ‘indirect’ impacts which the applicant refers to as ‘cumulative impacts’ of an action, as well as the direct impacts. The applicant considers that the ‘cumulative impacts’ relevant to the GHFF are the clearing of native vegetation for agriculture, forestry operations, plantation plantings and development, resulting in a scarcity of foraging and roosting habitat.

142    Accordingly, the applicant submits that the Minister should have considered these ‘cumulative impacts’ during the approval process.

Finding

143    Although the approval is stated to have effect until 2039, the definition of the ‘Life of the action’ refers to the expiry date or ‘until Condition 14 is met’. Condition 14 defines the criteria to be used to assess the success of the action, stipulating acceptable levels of relocation of GHFF to appropriate sites and a mandatory commitment to fund those sites to ensure their ongoing maintenance for up to five years. Until such time that the terms of condition 14 are shown to be satisfied, the BGT remains subject to onerous conditions of approval including the funding of an independent observer group and expert panel, and continued monitoring and maintenance of the GHFF dispersed from the Gardens.

144    The approval requires all dispersal action to cease if the GHFF remain in the Gardens 31 days after the commencement of the dispersal activities or if within any calendar week there are GHFF deaths or multiple injuries found within one kilometre of the dispersal or re-dispersal sites. Further, if the Minister is not satisfied with a report to be provided to him in April 2011 by the BGT, he may request that redispersal not commence until the BGT makes specified revisions to its submission.

145    The conditions recommended by DEWHA and accepted by the Minister impose a rigorous additional burden on the BGT with respect to the dispersal. The reference in the Recommendation Report to ‘ongoing dispersal’ to prevent the colony from re-establishing is contained in the BGT’s original proposal. The Recommendation Report noted that the methodology proposed by the BGT for the dispersal was altered as a result of the conditions of approval. Predawn dispersal was not permitted, nor were activities outside the ‘safe window’, namely May to July in any year.

146    In Minister for Environment and Heritage v Queensland Conservation Council Inc and Anor, the Full Court said of the word ‘impact’ as used in s 75(2) of the EPBC Act at [53]:

As a matter of ordinary usage that influence or effect may be direct or indirect. “Impact” in this sense is not confined to direct physical effects of the action on the matter protected by the relevant provision of Pt 3 of Ch 2 of the EPBC Act. It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter.

147    The Full Court was answering a claim that the ‘adverse impacts’ as referred to in s 75(2) of the EPBC Act were not confined to those resulting from the person who takes the action. Rather, the impact referred to any effect, from whatever cause, resulting from the action for which approval is sought under the EPBC Act.

148    The applicant does not identify the impacts which have allegedly been disregarded by the Minister. Rather, the submission merely suggests that there may be cumulative impacts which will adversely affect the GHFF.

149    Based upon the precise nature of the monitoring, which will continue throughout the life of the approval, and upon which the life of the approval is contingent, it could not be said that the Minister failed to consider how the approval would operate to the date of expiry.

GROUND 4: FAILURE TO CONSIDER INFORMATION RELATING TO PREVIOUSLY ATTEMPTED GHFF DISPERSALS

Applicant’s Submissions

150    The applicant submits that the Minister failed to take into consideration under s 136(2)(e) of the EPBC Act other information in the Minister’s possession concerning similar GHFF dispersals which had been raised in public submissions and referred to in the Independent Expert Report of Dr Richards. The applicant also submits that such dispersals were mandatory considerations pursuant to ss 136(1)(a) and 136(2)(e) of the EPBC Act.

151    Conversely the applicant submits that should the Court conclude that it was for the Minister to determine the matters which were relevant to the GHFF, his failure to consider previous dispersal attempts as relevant considerations was manifestly unreasonable.

152    The applicant submits that the Minister had been provided with a substantial amount of credible information relating to previous unsuccessful GHFF dispersal attempts as contained in the applicant’s submission dated 22 December 2009 and in Dr Richards’ report dated March 2010. Dr Richards’ report recommended that the BGT conduct an assessment of the unsuccessful GHFF relocation attempts. The applicant’s submissions referred to unsuccessful attempts at Maclean and at Singleton, where the GHFF roosted within a few kilometres of the original camp site after being dispersed, then recolonised on the original site as no suitable alternative roost site was available.

153    The information available to the Minister stated that in Maclean Rainforest Reserve (‘the Reserve’) in 1999 disturbances of the GHFF led to the formation of new camps within 300 metres of the Reserve before a new camp was established at Iluka, NSW in 2004. The GHFF dispersed from the Reserve did not move to existing local camps.

154    The applicant asserts that the Iluka camp site established five years after the initial dispersal action significantly reduced the number of GHFF in the Maclean area, but once the dispersal of Maclean had stopped in 2007, the GHFF returned to the Reserve which resulted in public conflict. The applicant also submits that the formation of a colony of GHFF at Kareela is highly relevant as it demonstrates the possible unpredictable outcomes from deliberate or accidental dispersal. The applicant submits that the GHFF, if dispersed from the Gardens, might form small colonies in metropolitan Sydney thereby resulting in conflict with local communities.

155    The applicant submits that the Minister failed to consider any of the above issues and that the PER only refers to the dispersal of the GHFF from the Royal Botanic Gardens in Melbourne. Accordingly, the applicant submits that the Minister failed to consider other dispersals which was a mandatory and relevant consideration.

Finding

156    When making the Decision, the Minister had Dr Richards’ report before him which identified previous unsuccessful dispersal actions. Further DEWHA had indicated in its Recommendation Report that such actions had met with ‘mixed success’. It stated:

The method proposed by the BGT is based on the relocation of GHFF from the Royal Botanic Gardens in Melbourne and other locations such as Maclean in NSW which both have had mixed success. The Melbourne Botanic Gardens relocation was undertaken in 2003 where approximately 30,000 GHFF were relocated to Yarra Bend Park and a small proportion of the colony relocated to Easter Park in Geelong. Since the relocation occurred in March 2003, the GHFF colony has not re-established in the Melbourne Botanic Gardens.

157    Accordingly, the Minister was aware of the potential for the proposed action to be unsuccessful. In these circumstances, the Court cannot conclude that the Minister failed to consider previous unsuccessful attempts to disperse colonies of GHFF in Australia.

Further issues

158    As an additional issue the applicant submitted that the decision of the Minister was unreasonable. However, the applicant did not suggest that the decision was unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) and expressly disavowed any such basis of unreasonableness.

159    In Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Crennan and Bell JJ at [94] considered whether an ‘“illogicality, irrationality or lack of articulation in a finding of jurisdictional fact could constitute jurisdictional error’. This concept was also considered by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [4].

160    At [104] in SZMDS, Crennan and Bell JJ referred to the observations of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 in which his Honour said of a decision maker:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review ... If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

161    In SZMDS, Crennan and Bell JJ concluded at [131]:

the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

162    In the present circumstances, if the submissions of BA NSW are based upon similar grounds referred to in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, the Court can find no support for the assertion that the challenged decision is manifestly unreasonable either in the Wednesbury sense, or upon the grounds that the decision is illogical, irrational or based on finding or inferences of fact not supported by logical grounds.

163    Reasons should be informative and s 13 of the ADJR Act is designed to ensure that a safeguard for administrative decisions exists. In SZMDS at [32], Gummow ACJ and Kiefel J said:

Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws, notably s 13 of the ADJR Act and its progeny in State legislation, for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision. Its operation in the present dispute is to lay out, more clearly than otherwise would be the case, the field upon which these operate the considerations mentioned, for example, by Lord Wilberforce in Tameside and Latham CJ in Connell. [Footnotes omitted]

164    The Court also observes, for completeness, that in the decision of Kirby J (dissenting but on a different issue) in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [102] his Honour considered the consequences following from a failure to provide reasons for a decision. At [105] his Honour stated the rationale for reasons:

Rationale for reasons: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a “salutary discipline for those who have to decide anything that adversely affects others”. They encourage “a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the Courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases “public confidence in, and the legitimacy of, the administrative process. [Footnotes omitted]

165    The Minister has provided reasons which satisfy his statutory obligation. Reasons are not to be scrutinised in an over-zealous fashion’: see SZMDS at [35]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Reasons do not attempt to refer to every item of material before the Minister during the decision-making process in detail, but the Minister was not required to do so.

ORDERS

166    Since each of the applicant’s challenges fail, the Court accordingly dismisses the application.

167    Costs have not been argued. Accordingly, the Court will make the usual order that the unsuccessful party, namely the applicant, pay the costs of the respondents. Such order is however subject to an application by any party for a different order.

I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:    17 February 2011