FEDERAL COURT OF AUSTRALIA

Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226

THE COURT ORDERS THAT:

1.    The Reconsideration Decision referred to in paragraph [1] of these Reasons for Judgment be quashed.

2.    The matter to which the Reconsideration Decision relates be referred back to the respondent for reconsideration according to law.

3.    The respondent have regard to these Reasons for Judgment in affording the applicant natural justice.

4.    The parties have liberty to apply on the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant by its further amended application seeks an order for review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), of the decision of the respondent’s delegate dated 7 October 2010 (Reconsideration Decision) under s 78 and s 78C of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) or alternatively pursuant to s 39B of the Judiciary Act 1903 (Cth).

2    The Reconsideration Decision confirmed the respondent’s delegate’s earlier decision that the applicant’s proposal to develop Lot 5001, Allnut Street, Mandurah (the Land) for the purposes of residential, retail and office development (the Proposal) is a “controlled action” under the EPBC Act. That decision, in particular, concluded that the Proposal was likely to have a “significant impact” on listed species protected by the EPBC Act, namely Carnaby’s Black Cockatoo.

Background

3    On 22 April 2010, the respondent’s delegate, Ms Vicki Middleton made her initial decision pursuant to s 75 of the EPBC Act on referral that the Proposal was a “controlled action” and subject to the EPBC Act and as such required assessment and approval by the respondent under the EPBC Act before it could proceed (Controlled Action Decision).

4    The basis of the Controlled Action Decision was that the Proposal was likely to have a “significant impact” on listed threatened species and communities (ss 18 and 18A EPBC Act) protected by the EPBC Act, namely:

(a)    the foraging and breeding habitat of three species of Black Cockatoo (Forest Red-Tailed Black Cockatoo, Carnaby’s Black Cockatoo and Baudin’s Black Cockatoo); and

(b)    the clearing of native vegetation may impact on other threatened species such as the Graceful Sun Moth.

5    By letter dated 5 July 2010 the applicant requested a reconsideration of the Controlled Action Decision pursuant to s 78A EPBC Act on the basis that there was “substantial new information” regarding the potential impacts on the Graceful Sun Moth and Black Cockatoo habitats.

6    The “substantial new information” relied upon by the applicant included a report prepared by R E & C Johnstone and T Kirkby, entitled “Assessment of Significant Habitat for Black Cockatoos at Proposed Housing Development Lot 5001 Mandurah” (the Johnstone Report) , which concluded, relevantly:

A total of 6 trees with hollows possibly suitable for black cockatoos (one other large hollow with feral bees) were located. ... Most of these hollows were probably used by Galahs and Corellas. We found no evidence of black cockatoos breeding at this site. Judging from our surveys and information in the Storr-Johnstone Bird Data Bank it is evident that flocks of Carnaby’s Cockatoos occasionally forage over this area during their autumn – winter migration onto the Swan Coastal Plain.

...

We believe that the clearing of sections of the project area will not have an impact on Carnaby’s Cockatoo, Baudin’s Cockatoo or the Forest Red-tailed Black Cockatoo. The project area is small and contains very little foraging habitat for cockatoos. The clearing of some sections could impact on the local availability of feeding habitat for Carnaby’s Cockatoo but should not adversely affect habitat critical to the survival of this species in the region or lead to a decrease in the size of the population.

7    Pursuant to s 78B(6) of the EPBC Act, the applicant’s reconsideration request was exhibited for public comment on the website of the Department of Sustainability, Environment, Water, Population and Communities (the Department) for 10 business days from 16 July 2010 until 30 July 2010, but no public comments were received.

8    On 7 September 2010, the respondent informed the Western Australian Minister for the Environment of the applicant’s reconsideration request and invited that Minister to provide comments pursuant to s 78B(5) of the EPBC Act, but the only response received was advice from the Western Australian Environmental Protection Authority that it had not received any referral related to the proposal.

9    The Department prepared a briefing package for the delegate to assist the delegate in making her decision on the reconsideration request (the Reconsideration Brief). The package comprised a decision brief and various attached documents, including the applicant’s reconsideration request and supporting documents and the initial referral documentation.

10    In the notification of Reconsideration Decision dated 7 October 2010, the respondent’s delegate confirmed the original decision that the Proposal was “controlled action” pursuant to ss 78 and 78C(1) of the EPBC Act.

11    The delegate, in accordance with s 78C(2) of the EPBC Act, gave written notice of the Reconsideration Decision to the applicant by letter dated 8 October 2010.

12    The letter enclosing the Reconsideration Decision advised that “this decision to confirm my original decision means that I believe a significant impact on s 18 matters, and on the Carnaby’s Black Cockatoo in particular, is likely as a result of the project”.

13    The applicant requested a statement of reasons for the Reconsideration Decision pursuant to s 13(1) of ADJR Act; and, in response to that request, the delegate prepared a statement of reasons and furnished it to the applicant on 9 November 2010 (the Statement of Reasons).

14    As is set out in the Statement of Reasons at para [12], the Reconsideration Decision was to the effect that the Proposal was unlikely to have a significant impact on the Forest Red-Tailed Black Cockatoo, Baudin’s Black Cockatoo or the Graceful Sun Moth. The respondent’s delegate’s decision that the applicant’s proposal is a “controlled action” is therefore confined to her conclusion in relation to Carnaby’s Black Cockatoo.

The statutory scheme

15    The objects of the EPBC Act, which are set out in s 3, include providing for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance.

16    Chapter 2, Part 3 of the EPBC Act sets out a number of matters of national environmental significance for which assessment and approval under the EPBC Act is required, including world heritage properties, national heritage places, protection of environment from nuclear actions, Ramsar wetlands of international importance and, relevant to the present case, listed threatened species and ecological communities.

17    Section 18(3)(b) of the EPBC Act, in particular, provides that a person must not take an action that “is likely to have significant impact on a listed threatened species included in the endangered category”. Similarly, pursuant to s 18A, a person is guilty of an offence if that person takes an action and the action results or will result in a significant impact on a species and the species is a listed threatened species.

18    Carnaby’s Black Cockatoo is such a species.

19    Sections 18 and 18A of the EPBC Act will not apply when one of various provisions of s 19 apply. These include there being an approval in place for the action under Part 9 of Chapter 2 (s 19(1) and (2)) or where there is a decision of the Minister that the relevant subsection of s 18 or s 18A is not a “controlling provision” (s 19(3)(b)).

20    The assessment and approval of proposed actions that might otherwise contravene a provision of Chapter 2, Part 3 is determined by whether the action is a “controlled action” within the meaning of s 67 of the EPBC Act. Generally, a person must not take a controlled action without approval and, conversely, an action which has been the subject of a decision that it is not a controlled action, may be taken without contravening the EPBC Act.

21    Accordingly, Chapter 4, Part 7 of the EPBC Act, provides a mechanism whereby, upon referral, the Minister must, under s 75, decide whether a proposed action is, or is not, a controlled action. In determining whether or not a proposed action is a controlled action, the Minister must decide whether or not the action that is the subject of a proposal referred to the Minister is a controlled action and which provisions of Part 3 (if any) are controlling provisions for that action (s 75(1)).

22    Pursuant to s 75(2), where it is relevant for the Minister to consider the impacts of an action the Minister:

(a)    must consider all adverse impacts (if any) the action has, will have or is likely to have on the matter protected by each provision of Part 3; and

(b)    must not consider any beneficial impacts that the action has, will have or is likely to have on a matter protected by Part 3.

23    The Controlled Action Decision was a decision under s 75 of the EPBC Act.

24    Section 78 of the EPBC Act enables the Minister to revoke or substitute a decision made under s 75(1), inter alia, where the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impact that the action has, will have, or is likely to have on a matter protected by Part 3.

25    Where a request is made, pursuant to s 78A, for reconsideration of a decision on the grounds set out in s 78, certain procedural requirements apply (see s 78B) and, pursuant to s 78C, as soon as practicable after the end of the time within which the information or comments may be given under s 78B, the Minister must:

(a)    reconsider the decision; and

(b)    either:

(i)    confirm the decision; or

(ii)    revoke the decision in accordance with s 78(1), and substitute the new decision for it.

26    The Reconsideration Decision of the respondent’s delegate challenged in the present case was such a decision. Insofar as there was a jurisdictional requirement under s 78(1) for the delegate to be satisfied that there was “substantial new information about the impacts of the action”, that requirement was met.

27    The reconsideration request was made on the basis of substantial new information including the Johnstone Report, about the impacts of the proposed action. Accordingly, the question that the delegate had to decide was whether she was satisfied that the substantial new information warranted the revocation of the Controlled Action Decision and the substitution of a new decision: s 78(1)(a) of the EPBC Act. If the delegate was not so satisfied, she was bound to confirm the referral decision.

28    It follows, in effect, that in order for the delegate to revoke the referral decision and substitute a new decision to the effect that the proposed action was not a controlled action, the delegate relevantly had to be satisfied on the basis of the substantial new information that the proposed action would not likely have a significant impact on the species Carnaby’s Black Cockatoo (s 18).

29    Significantly, that is a determination to be made as to a state of fact. It is a jurisdictional fact. It is not a “state of mind formed at the (delegate’s) discretion”. The Minister (by the Minister’s delegate) may revoke a decision made under s 75(1) but only if the Minister is “satisfied” that revocation and substitution is warranted: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 per Lee and Moore JJ at [22]-[23]. It does not follow that a decision-maker who is so “satisfied” then has a discretion whether or not to revoke and substitute a new decision. The word “may” in s 78(1) is used to confer power and not to give a discretion: see by analogy Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274.

30    The fact that a decision is required to be based upon the reaching of a state of satisfaction, does not mean that the decision is immune from judicial review; and if, for example, the state of satisfaction was reached by taking into account an irrelevant consideration, or by misconstruing the terms of the relevant legislation, or the opinion is shown to be arbitrary, capricious, irrational or not bona fide, then the necessary state of satisfaction will not have been reached: see e.g. Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

31    The meaning of “impact” is defined in s 527E of the EPBC Act to include:

(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, the action is a substantial cause of that event or circumstance.

32    The phrase “significant impact”, is not defined in the EPBC Act. The Department has, nevertheless, prepared guidelines to assist in determining whether an action is likely to have a significant impact on a matter of national environmental significance; namely the Matters of National Environmental Significance: Significant Impact Guidelines 1.1 (Significant Impact Guidelines 1.1). The Significant Impact Guidelines 1.1 at p 3 state that a “significant impact” is an “impact which is important, notable, or of consequence, having regard to its context or intensity.” Particular guidelines in relation to endangered species refer to actions which adversely affect habitat critical to the survival of a species or lead to a long-term decrease in the size of the population.

Grounds of the review

33    The grounds of the review are:

1.    Section 5(1)(a) of the ADJR Act: ‘a breach of the rules of natural justice occurred in connection with the making of the decision’;

2.    Section 5(1)(e) of the ADJR Act: ‘the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to have been made’;

3.    Section 5(1)(f) of the ADJR Act ‘the decision involved an error of law, whether or not the error appears on the record of the decision’;

4.    Section 5(2)(a)-(b) of the ADJR Act: ‘the reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power; and

(b)    failing to take a relevant consideration into account in the exercise of a power’;

5.    Section 5(2)(g) of the ADJR Act ‘an exercise of power that is so unreasonable that no reasonable person could have so exercised the power’.

34    A number of the grounds for review involve consideration of the use, in the course of the making of the decision, of internal documentation of the Department consisting of “guidelines” and “judgments” documents: namely the Guidelines for Proponents on three threatened Western Australian black cockatoos dated June 2009 (2009 Draft Guidelines), the Significant impact guidelines for three threatened black cockatoos: dated July 2010 (2010 Draft Guidelines) and the ‘Carnaby’s Black Cockatoo Basis for Significant Impact Judgments’ (Judgments Document).

35    While the Statement of Reasons provided by the respondent pursuant to s 13(1) of the ADJR Act does not refer, in terms, to the 2009 Draft Guidelines, the 2010 Draft Guidelines or the Judgments Document, the applicant submits that those documents (and their contents) formed part, and indeed a decisive part, of the making of the Reconsideration Decision. Dr Andrew Weavers, the officer of the Department who prepared the Reconsideration Brief to the respondent’s delegate confirmed the use of those documents in assessing the applicant’s proposal. Moreover, the Statement of Reasons contains references to content that appears to be derived from those documents.

36    The reasons for the conclusion in relation to Carnaby’s Black Cockatoo are set out in the Statement of Reasons from para [15]-[41]. Those paragraphs, unsurprisingly, closely mirror the supporting advice of the Department forwarded to the delegate by Dr Weavers on the day of the Reconsideration Decision. The applicant submits that there is reference in the supporting advice and the Statement of Reasons to the following matters:

(a)    the existence of “breeding habitat” on the Land by reference to the advice of the “black cockatoo recovery team”. No “advice” of the black cockatoo recovery team is appended to either the supporting advice or the Statement of Reasons, although the reference accords with certain passages in the 2009 Draft Guidelines and 2010 Draft Guidelines;

(b)    references to the Johnstone Report’s conclusions as to “foraging habitat”, but not the conclusions in relation to “breeding habitat”;

(c)    unresolved queries in relation to the Johnstone Report in relation to whether the experts “considered the project in isolation” and as to the impact upon certain recommendations on the experts’ conclusions. These references, in context, are to be understood as undermining the views expressed in the Johnstone Report; and

(d)    the fact that the Minister had approved clearing of strands of Cockatoo habitat in other areas and was considering other applications to do so.

37    Save for references to the Department’s “definition” of breeding habitat, there is no evidence that any of the four matters referred to in the preceding paragraph were communicated to the applicant prior to the making of the Reconsideration Decision.

38    Nor were the existence, or detailed provisions, of the 2009 Draft Guidelines, the 2010 Draft Guidelines or the Judgments Document made known to the applicant for its comment prior to their being utilised by the Department and respondent in making the Reconsideration Decision.

39    Accordingly, the applicant submits that the 2009 Draft Guidelines, the 2010 Draft Guidelines or the Judgments Document are, for the purposes of the application for order for review, to be regarded as considerations and material taken into account in the exercise of the power under the EPBC Act. Insofar as the Statement of Reasons might be interpreted to suggest otherwise, the applicant submits that the present case is one where the presumption of the completeness of the Statement of Reasons has been rebutted: Phosphate Resources Ltd v Minister for Environment Heritage and the Arts (No 2) (2008) 251 ALR 80 at [162].

40    The applicant submits that the delegate’s decision was attended by the following errors:

(a)    the 2009 Draft Guidelines, the 2010 Draft Guidelines or the Judgments Document were irrelevant to the exercise of the power;

(b)    the fact that the Minister had approved clearing of strands of Cockatoo habitat in other areas and was considering other applications to do so was irrelevant to the exercise of the power;

(c)    if contrary to the above submissions, the matters in paras (a) and (b) above were relevant considerations, the applicant was denied natural justice in being unable to address those matters;

(d)    the respondent’s delegate had identified as relevant matters to be considered the provisions of s 87(3)(a), (b) and (c) of the EPBC Act, which were irrelevant to the exercise of the power;

(e)    the Reconsideration Brief from the Department to the respondent’s delegate did not accurately convey the content of the referral documentation submitted by the applicant such that those considerations were not given real and conscientious consideration; and

(f)    the decision was otherwise so unreasonable that no reasonable decision maker could have exercised the power in the way that it was.

Relevant and Irrelevant considerations

Irrelevant Considerations

41    Just as a relevant consideration, for the purposes of judicial review, is a consideration that, according to the relevant statute, the decision-maker must take into account, an irrelevant consideration is one that, according to the relevant statute, the decision-maker must not take into account.

42    As I mentioned, the underlying question which confronted the respondent’s delegate under s 78 of the EPBC Act was whether, as a matter of fact, the adverse impacts (if any) of the applicant’s proposal were not “likely to have a significant impact” on the species Carnaby’s Black Cockatoo. That fact either existed or it did not. The answer could not involve the application of policy or the exercise of discretion.

43    The fact to be determined by the respondent’s delegate, the applicant submits, was to be determined by reference to evidence as to the impact of the Proposal itself. That is, the material relevant to the decision was material that specifically addressed the applicant’s proposal. The material provided by the applicant and in particular the Johnstone Report met that description. It specifically addressed the impact of the Proposal by reference to the actual conditions existing on the Land. Moreover those conclusions were expressed in accordance with the criteria set out in Significant Impact Guidelines 1.1; namely whether the proposed action would adversely affect habitat critical to the survival of a species or lead to a long-term decrease in the size of the population.

44    The Johnstone Report was, relevantly, the only material specifically addressing the Proposal as it related to Carnaby’s Black Cockatoo.

45    Against that evidence, which, plainly enough, was significantly discounted in the Reconsideration Brief provided to the respondent’s delegate, the Proposal was assessed by reference to what Dr Weavers describes as the “systematic understanding” reflected in the 2009 and 2010 Draft Guidelines and the Judgments Document.

46    Those documents include presumed impacts on the basis of “defined” criteria. For example, the 2010 Draft Guidelines “define” breeding habitat as being 3 or more trees within any patch of woodland or forest greater than 0.5 ha in size, with a diameter at breast height of 500mm or greater, and then presume that an action affecting the “defined” breeding habitat is likely to have a significant impact on the species in the relevant area. This presumption would appear to apply regardless of any actual evidence in relation to the proposal in question and, indeed, in the face of evidence to the contrary, such as that in the Johnstone Report.

47    However, the applicant says that there is nothing to suggest precisely how these definitions or presumptions were arrived at or whether they are scientifically correct. In that regard, it says that the 2009 Draft Guidelines and the 2010 Draft Guidelines contain what appear to be substantial amounts of “background information” about the Black Cockatoos, some of which is referenced to scientific research, much of which is not.

48    The applicant submits that whether any of the contents of the “systematic understanding” (or the documents forming part of it) are sufficiently reliable so as to support a finding of fact in any particular case that a proposal is likely to have a significant impact upon a species of Cockatoo cannot therefore be determined.

49    The applicant submits that in the absence of some basis for determining whether the “systematic understanding”, or the documents forming part of it, has, or is capable of having, any application to a particular proposal, the “systematic understanding” is irrelevant to the decision required to be made under the EPBC Act.

50    The respondent submits that the delegate did not take into account the 2009 and 2010 Draft Guidelines and the Judgments document.

51    The respondent then contends that even if, as a result of the inclusion in Attachment A to the Reconsideration Brief of certain matters that are part of the Department's “systematic understanding” and “systematic approach”, the delegate could thereby be said to have taken into account the 2009 and 2010 Draft Guidelines and the Judgments document, those documents were not a “factor”, and the delegate cannot be said to have taken an irrelevant consideration into account.

52    This submission is based in what Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 in the context of judicial review on the ground of taking into account irrelevant considerations, that the High Court:

… has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. (Emphasis added)

53    As the respondent submits this ground is only made out if some irrelevant factor was taken into account, and that the ground does not apply to particular pieces of evidence: by analogy see Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J, with whom Sheppard and Gummow JJ agreed at 227.

54    I accept these submissions. The 2009 and 2010 Draft Guidelines and the Judgments document in my view contained various pieces of evidence and material bearing on the factor of whether the Proposal would have a significant impact on any of the matters protected by Part 3 of the EPBC Act and relevantly Carnaby’s Black Cockatoo. This finding does not affect the views to which I have come on the question of natural justice.

55    As the respondent described them the 2009 and 2010 Draft Guidelines and the Judgments document reflected the Department’s accumulated knowledge (“systematic understanding”) and the approach it developed to assessing proposed actions in light of that knowledge (“systematic approach”) in relation to Black Cockatoo species, and those documents similarly contained evidence and material that reflected the Department’s accumulated knowledge and approach in assessing proposed actions in relation to Black Cockatoo species. They were, therefore, not legally irrelevant to the consideration of the delegate.

56    The respondent likewise, says, correctly in my opinion, that the clearing of other areas undertaken, or approved to be undertaken pursuant to approvals issued under the EPBC Act, and other proposed actions for other areas currently being assessed by the Department or the subject of pre-referral discussions for the clearing of other areas of Black Cockatoo habitat, were not legally irrelevant to assessing whether the proposed action would have a significant impact on Carnaby’s Black Cockatoo. As the delegate found, those matters are part of the context in which the direct impacts of the clearing of Black Cockatoo habitat as a result of the proposed action are to be considered.

57    The applicant further observes that the Department’s advice to the delegate as set out in the Reconsideration Brief was that s 87(3)(a)-(c) of the EPBC Act were relevant considerations.

58    This, the applicant submits is incorrect as s 87(3) subs (a)-(c) are relevant to the Minister’s consideration of the assessment approach on approval, a later stage in the process prescribed under the EPBC Act, but are not relevant to the Minister’s consideration of whether an action is ‘controlled’ under s 78. Rather the applicant submits that the test under s 87(3)(a)-(c) is broader than that under s 78 as it invites the consideration of adverse and beneficial impacts of an action, whereas the test under s 78 prescribes consideration of adverse impacts only: see s 75(2) of the EPBC Act.

59    The respondent submits that the delegate did not take irrelevant considerations into account by reason of the references to s 87(3)(a)-(c) of the EPBC Act. The respondent acknowledges that the reference to these paragraphs of the EPBC Act was in error, but submits that it did not result in the delegate taking irrelevant considerations into account because:

(a)    the reference to s 87(3)(a)-(c) of the EPBC Act is not an error that had any material effect on the delegate’s decision;

(b)    the Statement of Reasons demonstrates that the delegate took into account the “substantial new information” provided by the applicant;

(c)    as a result of that new information the delegate concluded that the proposed action was not a controlled action for two of the three listed species of Black Cockatoo, and was not a controlled action for the listed Graceful Sun Moth;

(d)    the Statement of Reasons also shows that the delegate took into account other relevant information about the impacts of the proposed action. There were no irrelevant considerations taken into account, and the reference to s 87(3)(b) had no affect on the matters considered by the delegate; and

(e)    similarly, the delegate was bound to take into account any comments from the Western Australian Minister for the Environment pursuant to s 78B(5) of the EPBC Act, and the reference to s 87(3)(c) had no material effect on the delegate’s decision.

60    I accept the respondent’s submissions in these respects.

Relevant Considerations

61    The applicant’s ground of review in this respect is that the delegate failed to take relevant considerations into account in the exercise of the power:

(a)    by failing to give any or any due weight to the Significant Impact Guidelines 1.1 in making the referral decision and the Reconsideration Decision;

(b)    in relation to the original decision, the Reconsideration Brief effectively disregarded the expert advice submitted in the referral documents and thus failed to have regard to relevant and material matters and considerations; and

(c)    the Department’s advice “discounted” the information contained in the reconsideration request with the effect that the delegate “effectively ignored” the additional information concerning Carnaby’s Black Cockatoo and failed to have regard to that information in making the Reconsideration Decision.

62    The first of these complaints is without foundation. Attachment A to the Reconsideration Brief noted that the Department had reviewed the information in the referral against the Significant Impact Guidelines 1.1. Accordingly, it cannot be said that the delegate did not take into account the Significant Impact Guidelines 1.1.

63    As to the second complaint, paras 14.2 and 14.3 of the amended application refer to matters in relation to the Controlled Action Decision. The grounds of review relate to the application to review the Reconsideration Decision. Accordingly, any failure to take into account these matters has no bearing on the challenge in the current proceeding.

64    The applicant’s final complaint is that the respondent’s delegate did not give real and genuine consideration to the Johnstone Report which specifically addressed the necessary criteria relevant to the decision by reference to the Significant Impact Guidelines 1.1 and was, taken as a whole, relevant material that was critical to the issue, the subject of decision. The failure by the delegate to do this resulted, says the applicant, in a failure to give consideration to it in a “real” sense or “in a real and conscientious way”.

65    While the Johnstone Report is referred to in the Statement of Reasons, the applicant submits that the clear inference to be drawn is that the respondent’s delegate was entirely dependent upon the summary provided in the supporting advice from the Department as to the content of the Johnstone Report. It says that this may be inferred from the following matters:

(a)    the Reconsideration Decision was made on the same day as the supporting advice from the Department;

(b)    the instructions from the Department specifically recommended consideration of Attachment A (the supporting advice) but not Annexure G of Attachment B (the Johnstone Report);

(c)    the Statement of Reasons in relation to Carnaby’s Black Cockatoo (paras [15]-[41]) closely corresponds to the supporting advice of the Department;

(d)    no aspect of the Johnstone Report not referred to in the supporting advice appears in the Statement of Reasons.

66    Further, the summary in Attachment A referred to the conclusions in the Johnstone Report as to “foraging habitat”, but not in relation to “breeding habitat” and in particular the authors’ statement that “found no evidence of black cockatoos breeding at this site”. The applicant submits that the importance of this material was such that its absence from the summary and the Statement of Reasons lead to the conclusion that the Johnstone Report was not given real consideration, beyond the summary.

67    The subject-matter, scope and purpose of the EPBC Act indicate that whether proposed action will have, relevantly, a significant impact on the Carnaby’s Black Cockatoo, a listed threatened species, is a relevant factor for consideration by the Minister. Consideration of that factor by implication requires that it be based on accurate and, where necessary, full information available.

68    It is apparent that the Minister’s delegate did not read the Johnstone Report. Rather, she made her decision by accepting the reasoning in the Reconsideration Brief which had been prepared by Dr Weavers, and other Departmental officers. She acknowledged this in terms by her annotation made at item 3 under the heading “Recommendations” on the first page of the Reconsideration Brief. This of itself is neither surprising or remarkable.

69    As I said, the complaint is that when summarising the Johnstone Report there is no mention of that part of the report which states that there is no evidence on the Land of actual breeding. Whilst that is the case in relation to Attachment A to the Reconsideration Brief, it is nonetheless a matter addressed and referenced on page 2 of that brief under the heading “Key Issues” were it is stated:

The proponent has also provided a report from Ron Johnstone of the WA Museum, a recognised expert in Black Cockatoos, who has stated his belief that the action is unlikely to have an impact on Black Cockatoos based on the low amount of foraging resources on site compared to the region, and based on the fact that black cockatoos are not known to breed in this area. (Emphasis added)

70    I am satisfied that this important fact was drawn to the delegate’s attention as a “key issue” even if not repeated when the Reconsideration Brief summarised the Johnstone Report later in the document and even although it was not expressly set out in the Reasons. The delegate was neither misinformed nor mislead in this respect. The relevant fact was before her for her consideration.

71    The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

72    That well-settled principle of administrative law extends, in my view, to a case such as this where not every fact relied upon is expressly contained in the written reasons of the decision-maker. The delegate was aware that breeding habitat both potentially into the future and actually as at the time of the decision was important. The former was expressly referred to variously in the delegate’s reasons. The latter was not, but as I mentioned, was before the delegate as a key issue. There is no reason, in those circumstances, to conclude that she did not take this into account when reaching her decision.

73    In any event, the applicant accepted the delegate’s conclusion that the site contains 1.5 hectares of breeding habitat (that is, potential but not necessarily actual breeding habitat). In an email from the applicant's Ben McCarthy, Senior Project Manager to the applicant’s Sergio Famiano and the respondent’s Jacqueline Pulkkinen, Assistant Director, WA and SA Section, Environment Assessment Brnch, DEWHA, sent on 23 August 2010, Mr McCarthy noted that breeding habitat at the site was assessed in Section 3.1.2 of the report (Supporting Information document), based on the Department’s definition of “breeding habitat” for Black Cockatoos, as a total of 2.72 hectares of potential breeding habitat, and that the proposed action would result in the removal of approximately 1.5 hectares of potential on-site breeding habitat. The delegate referred to the applicant’s calculations, accepting that the proposed action would clear 1.5 hectares of Black Cockatoo breeding habitat at para 25 of the Statement of Reasons.

Denial of natural justice

The 2009 and 2010 Draft Guidelines

74    The applicant claims that there was a breach of the rule of natural justice requiring procedural fairness in connection with the making of the decision because, in making the Reconsideration Decision, the delegate relied on the 2009 and 2010 Draft Guidelines and the Judgments document and the applicant was not offered the opportunity to be heard on the reliability of those documents or their application to its proposal.

75    The applicant submits that it is not enough that some of the Department’s “definitions” and “thresholds” were communicated to officers of the applicant at various times. Rather, in circumstances in which those definitions were intended to be applied despite the expert evidence provided by the applicant, it submits that natural justice required that the applicant have an opportunity to be made aware of both the existence and content of the 2009 and 2010 Draft Guidelines and the Judgments documents themselves.

76    The respondent contends that procedural fairness in the making of the Reconsideration Decision did not require that the applicant be provided with copies of those documents, and have the opportunity to make comments about them before the making of the Reconsideration Decision. It makes this submission for a number of reasons.

77    First, it says that the 2009 and 2010 Draft Guidelines and the Judgments document were not relied on by the delegate, in making her Reconsideration Decision, because they were not documents that were provided to her as part of the Reconsideration Brief. Further, in para [8] of her reasons for decision dated 9 November 2010, the delegate listed the evidence or other material on which her findings were based, and she only listed the documents that comprised the Reconsideration Brief. As matters of fact both these matters are correct.

78    Nonetheless it is necessary to understand the provenance of these documents. According to Dr Weavers the Department had developed over a number of years, starting from about 2005, a “systematic understanding” or “systematic approach” on how to apply the EPBC Act to the three listed threatened species of Black Cockatoo, and had applied that “systematic understanding” for more than one hundred projects in relation to the EPBC Act. Dr Weavers also deposes that part of the Department’s consideration of the proposed action included that “systematic approach” or “systematic understanding”, and that several documents have been produced aimed at establishing the “systematic approach”, including the 2009 Draft Guidelines and the Judgments document.

79    Accordingly, the respondent submits that while aspects of the Department’s accumulated knowledge in relation to Carnaby’s Black Cockatoo, as also reflected in its “systematic understanding” and “systematic approach”, may have been included in Attachment A to the Reconsideration Brief, it does not follow from this that the delegate relied upon the 2009 and 2010 Draft Guidelines and the Judgments document. Rather, the delegate relied on matters that were included in Attachment A to the Reconsideration Brief, many of which were also reflected in the Department’s “systematic understanding” and “systematic approach”.

80    I accept that it is unsurprising that, in assessing proposed actions over a number of years involving the destruction of breeding and foraging habitat for the three listed threatened species of Black Cockatoos, the Department had accumulated a bank of knowledge in relation to those three species, and an appreciation of the effects of the destruction of their habitat and the mitigation measures that might alleviate those effects, resulting in the Department’s “systematic understanding” and “systematic approach” in assessing proposed actions to determining whether or not they amount to controlled actions within the meaning of the EPBC Act.

81    The respondent submits that it is not reasonable for the applicant to expect that the Department would assess the applicant’s reconsideration request, for the purposes of preparing its Reconsideration Brief to the delegate, by only having regard the material put forward by the applicant in support of its reconsideration request, and would not take into account the Department’s accumulated knowledge in relation to the three listed threatened species of Black Cockatoo (its “systematic understanding”) and its approach developed as a result of such knowledge to assessing the significant impacts of proposed actions involving those species (its “systematic approach”), being an understanding and an approach developed over several years and in relation to many previous applications, including several other projects by the applicant, that affect Black Cockatoos.

82    I did not understand the applicant to contend otherwise. The question however remains as to whether those documents ought, in order to afford procedural fairness, have been provided to the applicant.

83    A person whose interests are likely to be affected by an exercise of power must be given the opportunity to deal with relevant matters adverse to their interest which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550 at 584, 629. As McHugh J pointed out, concerning Kioa, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [140] this does not mean that all material which comes before the decision-maker must be disclosed: only adverse information.

84    It cannot be doubted that the rights and interests of the applicant are affected by the Reconsideration Decision. The documents together, as I mentioned above, reflected the Department’s accumulated knowledge (“systematic understanding”) and the approach it developed to assessing proposed actions in light of that knowledge (“systematic approach”) in relation to Black Cockatoo species, and those documents similarly contained evidence and material that reflected the Department’s accumulated knowledge and approach in assessing proposed actions in relation to Black Cockatoo species.

85    It was this “systematic understanding” and “systematic approach” which underpinned the Reconsideration Decision adversely to the applicant and in the face of a contrary conclusion reached by the leading expert in this area, Mr Johnstone.

86    Given that this understanding and approach had been reduced to written form, albeit described as drafts, those documents, or at least the parts of each of them adverse to the applicant’s contentions which were, in effect, taken into account should have been disclosed to the applicant as a matter of fairness, to enable it to make submissions in respect of their relevant content to the delegate. The applicant, in this respect, was denied procedural fairness.

Other areas

87    The other basis for the applicant’s claim of a denial of procedural fairness is that the delegate took into account the clearing of other areas undertaken or approved, and other proposed actions for other areas that were being assessed by the Department or the subject of pre-referral discussions.

88    The respondent does not dispute that the delegate had regard to those matters in making the Reconsideration Decision. However, the respondent submits that these are not matters which were irrelevant to the making of the Reconsideration Decision, and are matters of which the respondent could expect the applicant to have been aware, given the undisputed substantial growth of Mandurah in recent years and the applicant’s role as a State-owned major land developer.

89    Such presumed knowledge on the part of the applicant in this respect is mere assertion on the part of the respondent.

90    Paragraphs [35]-[38] and [40] of the delegate’s Statement of Reasons were as follows:

[35]    I considered the impacts of this project as they directly contributed to the decline of habitat for this species in the context of other projects in this area. The project area is one of the few remaining undeveloped stands of black cockatoo habitat in Mandurah. There has already been approval to clear many of the undeveloped stands of black cockatoo habitat in Mandurah.

[36]    Delegates to the Minister have approved clearing of stands of black cockatoo habitat for the Mandurah entrance road (2009/4692), which is across the road from this development, Hungerford Avenue urban development (2009/4789), Bridgewater North urban development (2008/3984), Port Bouvard Canal Estate urban development (2007/3737), Florida Partnerships Shopping Centre (2006/3155) and Old Coast Road sand quarry (2008/4326).

[37]    We are currently assessing Greenfields Mandurah (2009/4919) which is also across the road from this development, Point Grey Marina (2010/5515) and Halls Head Shopping Centre (2010/5636).

[38]    The Department is also currently in pre-referral discussions for clearing of an additional woodland stand to the north of this project in Mandurah, the Point Grey urban development, and are aware that another large stand of habitat to the south of the Mandurah cut associated with the Florida Partnerships Shopping Centre is also scheduled for clearing.

[40]    The current and proposed clearing events, if approved, will result in a reduction in the resources available for black cockatoos in Mandurah to the extent that flocks of black cockatoos may be unable to utilise this part of the landscape. The direct impacts of black cockatoo habitat clearing arising from this project proposal are considered in that context.

91    There is, on the evidence, no reasonable basis to support the assertion of presumed knowledge and I, without more, would not accept it. Indeed in the Reconsideration Brief, repeated at para [33] of the Statement of Reasons it is stated that “… it was not clear that the experts and consultants engaged by the proponent … were aware of the details of, or are considering this project in the context of, current clearing patterns in the area”. This observation runs directly counter to the asserted knowledge. The information set out above describes not only projects where clearing of stands of Black Cockatoo habitat has been approved but also other projects then only under consideration. Indeed the conclusion at [40] of the Statement of Reasons takes into account a hypothetical circumstance, namely that proposed clearing events are approved. The question of the direct impact of Black Cockatoo habitat clearing from the applicant’s project were considered “in that context”. There is no evidence to sustain a conclusion that the applicant knew of these proposals or their assumed approval. Such information adverse to the applicant’s interests and employed in arriving at an adverse decision ought, as a matter of fairness to have been provided to the applicant for comment. It was not. Senior counsel for the respondent conceded that it was critical that a person such as the applicant who is going to be affected by a decision knows the terms in which the decision will be reasoned. This did not occur here.

92    However, the respondent goes further and submits that the applicant was actually advised of those terms by the Department’s officer, Ms Jacqueline Pulkkinen, during a phone conversation she had with the applicant’s officers Sergio Famiano and Ben McCarthy on 19 August 2010. A telephone conversation did occur between those persons on that day however the applicant denies that such advice was given. I will now consider this factual question.

93    I have generally preferred the submissions of the respondent as to this factual question which I have considered although, as I will explain, this is not determinative of this ground of review.

94    There was, in evidence, a contemporaneous file note made by Ms Pulkkinen dated 19 August 2010 and which was attached to her email of 20 August 2010 which she sent to Dr Weavers and others in the Department. Ms Pulkkinen was not called to give oral evidence. Relevantly, Ms Pulkkinen’s note records that:

(a)    she said that the Department did not view Mr Ron Johnstone as an 'alleged' expert, but recognised that he had a bona fide expert knowledge on the species (referring to black cockatoos);

(b)    she said that ‘[her] understanding was that [Mr Johnstone’s] assessment of significance was based on site specific issues, whereas the delegate makes decisions in the context of the pressure on the species across their range, and the delegate’s view in the past had been that in that context 1 ha was significant’;

(c)    Mr McCarthy and Mr Famiano “responded that they did not feel assessing for cumulative impacts (i.e. consideration of pressure across the range in looking at individual projects) was legitimate, and they were prepared to seek judicial review to test both this and the 1 ha threshold that the Department applies”: para.

95    Mr Famiano in his affidavit sworn 23 November 2011 (Mr Famiano’s second affidavit), does not depose explicitly that the statements set out in Ms Pulkkinen’s file note were not made, but states that it is his recollection that ‘the discussion in this regard was general in nature and did not refer to any specific proposals by the applicant’. I accept that Ms Pulkkinen was speaking in general terms when she said that ‘the delegate makes decisions in the context of the pressure on the species across the range’. However, that comment followed upon discussions about the applicant’s Mandurah Junction project and, although the response of Mr Famiano and Mr McCarthy is also recorded by Ms Pulkkinen in general terms, it is clear enough that Ms Pulkkinen’s statements were applicable to the Department’s assessment of the Mandurah Junction project, which was being discussed immediately prior to those statements. His recollection was that the conversation primarily related to the applicant’s frustrations at the application of specific thresholds to determine significance rather than the expert advice obtained from Mr Johnstone and other consultants. Mr Famiano agreed in his oral evidence, that he had a recollection of a general discussion about the question of cumulative impacts. Otherwise, Mr Famiano had little recollection of the telephone conference on 19 August 2010.

96    Mr McCarthy, in his oral evidence, accepted that Ms Pulkkinen had said that the delegate who would make the reconsideration decision does so in the context of the pressure of the species across their range. Mr McCarthy also recalled Ms Pulkkinen saying that the delegate’s view in the past had been that in that context one hectare was significant

97    As to the Landcorp representatives’ response as recorded by Ms Pulkkinen (that they did not feel assessing for cumulative impacts was legitimate), Mr McCarthy said that he did not recall the response ‘in that context’, and that it was in the context that “the project needs to be assessed on its own merits”. He later said that he did not recall “anything like that” as a response on behalf of Landcorp. He again confirmed that Ms Pulkkinen had raised the issue of cumulative impacts in the following exchange during cross-examination:

‘Yes. It was my understanding that an earlier answer that you gave but you had no recollection of was Ms Pulkkinen having raised the issue of cumulative impacts. Is that right? No, not correct. She did talk about species in the wider region.

Yes? That’s correct.

And you understood that to mean, did you not, that ---? --- Whenever we consider significant impact we’re always considering it in the wider region.

Thank you – and did you understand that to mean that the impact of this project would be assessed in the context of the wider region, correct? One would hope so. You would – definitely.

And one of the matters that would be relevant in the assessment would be what other clearings of habitat had taken place in the wider region? That’s correct, without a doubt.’

98    This evidence is such that I am left wondering whether in relation to earlier evidence on the same topic, Mr McCarthy may have been at cross-purposes with the questioner.

99    Whether that is correct or not, whilst I regard the applicant’s witnesses as having honestly attempted to recall what was discussed, I prefer the evidence of the discussion as revealed by the file note. This is no reflection adverse to the honesty of the applicant’s witnesses.

100    There was a further telephone conference on 8 September 2010, again between Ms Pulkkinen, Mr Famiano and Mr McCarthy, but also including the Department’s officer, Dr Weavers, and Mr Brent Carter, an environmental consultant employed by Environmental Resources Management Pty Ltd, a company engaged by the applicant to assist it with its submissions to the Department.

101    Dr Weavers deposed in his affidavit sworn on 29 November 2011 that during the telephone conference, he discussed the situation in Mandurah and said that there were several developments in Mandurah that were having an adverse impact on foraging and breeding habitat for black cockatoos. Dr Weavers further deposed that:

4.    I also said that when the Minister’s delegate makes decisions on the significant impact of projects, she would take into account all clearing events in the local area (if they are over the threshold that the Department is using) due to the impact they were having on the species and the availability of resources for black cockatoos in the local area. I said that the Mandurah Junction project would also be considered in the context of the development going on in the Mandurah area, actual and intended. This was a direct reference to cumulative impacts.

5.    My recollection is that prior to this conversation, I had similar discussions with representatives of Landcorp, including Ben McCarthy, about other Landcorp projects, which also involved clearing black cockatoo foraging and breeding habitat.

6.    I have a clear recollection that in the course of those conversations, I explained that the assessment of significant impact would take into account the cumulative effect of the relevant proposed action and other actions affecting black cockatoos.

7.    On those occasions, I explained to the representatives of Landcorp that considering the effect of a particular proposed development in the context of other developments was part of the logic of how the Department made its significant impact judgements. This cumulative impact approach formed part of the “systematic understanding” I referred to in my earlier affidavits.

102    Mr Famiano, in his affidavit sworn 29 November 2011, deposed that he does not have an independent recollection of the telephone conference on 8 September 2010, and that it is only by reference to the email exchange at annexures “SF7” and “SF8” to his affidavit sworn 11 February 2011 (Mr Famiano’s first affidavit) that he is able to confirm that he was present during that conversation.

103    Mr Famiano deposes that the usual practice after such telephone conferences was for an email to then be circulated outlining those issues discussed and the responses required in order to progress the reconsideration, and that there was nothing in the emails at annexures “SF7” and “SF8” to his first affidavit which caused him to think that the usual process was not followed, so that the telephone conference on 8 September 2010 was accurately summarised in those emails. He then said that whilst he did not have a clear recollection of the conversation on that date he could state, generally, that he did not recall that officers of the Department ever raised with him the issue of cumulative impacts in relation to the site which was the subject of the Mandurah Junction project in the context of the wider Mandurah area.

104    However, as the respondent submits correctly, one has only to look at Ms Pulkinnen’s File Note of the telephone conference of 19 August 2010 and her email to Mr Famiano and Mr McCarthy sent on 20 August 2010 to see that there was no such invariable practice.

105    I accept that Ms Pulkinnen’s email merely sought confirmation on a number of issues in the reconsideration, and that she did not set out all of the matters discussed on 19 August 2010 as recorded in her File Note.

106    Similarly, I accept that in her email of 8 September 2010, Ms Pulkinnen simply sought confirmation/information on three issues, and that the email does not purport to be a record of everything that was discussed during the telephone conference held on that day.

107    Mr Famiano confirmed in cross-examination that, although he believed there was a conversation on 8 September 2011, he could not recall any details about the conversation, and his belief that there was a conversation was based on the subsequent emails at annexures “SF7” and “SF8” of his first affidavit.

108    Mr Carter, in his affidavit sworn 29 November 2011, deposed that he had a specific recollection of the telephone discussion on 8 September 2010; that the matters that were discussed related to the mapping of the potential breeding and foraging habitat at the site; that it was his recollection that, at no point during the conversation, was the issue of cumulative impact raised in relation to the site in the context of the wider Mandurah area or other developments in that area; that his recollection accorded with Ms Pulkkinen’s email at annexure “SF7” to Mr Famiano’s first affidavit, as that email made no mention of cumulative impact in relation to the Mandurah Junction project or in the context of the wider Mandurah area; and that his experience was that important points discussed between the Department and the applicant during telephone conversations were afterwards addressed in writing by the Department.

109    I accept the respondent’s submission that Mr Carter’s recollections of the telephone conference on 8 September 2010 are likely based on the matters that Ms Pulkkinen set out in her email of the same date and that, like Mr Famiano, he has erroneously concluded that Ms Pulkkinen’s email included all of the matters discussed.

110    I so find because Mr Carter:

(a)    had no recollection of matters discussed during the telephone conference other than the matters set out in Ms Pulkkinen’s email which is borne out by his evidence in cross-examination;

(b)    when asked whether it was his evidence that Dr Weavers must be mistaken about what occurred during that conversation, and he replied ‘[m]y evidence is that I don’t recall any discussion on the matters that Andrew Weavers mentions in the affidavit’; and

(c)    confirmed this by responding “that’s correct”, when asked to confirm that he did not recall those matters being discussed.

111    Mr McCarthy, in his affidavit sworn 29 November 2011, also deposed that he did not have a clear recollection of the details discussed during the telephone conference on 8 September 2010. Mr McCarthy recalls that the topic of conversation was the calculations of Black Cockatoo habitat in the information provided by the applicant, and that at no point was the issue of cumulative impact raised in relation to the site or the context of the Mandurah area. Mr McCarthy further deposes that the usual process following telephone discussions between the Department and the applicant requiring new additional information was for an email to be circulated to the individuals involved outlining the issues discussed and the responses required in order to progress the assessment; that the email exchanges are identified in annexures “SF7’ and “SF8” to Mr Famiano’s first affidavit: and that those emails accord with his recollection of the discussion.

112    As with Mr Carter, Mr McCarthy’s recollections of the telephone conference on 8 September 2010 are based on the subsequent email from Ms Pulkinnen and his email in response; and, I find that, like Mr Famiano and Mr Carter, he erroneously concluded that Ms Pulkkinen’s email included all the matters discussed.

113    I so find because:

(a)    under cross-examination, Mr McCarthy’s recollection of the matters discussed at that telephone conference is confined to the matters in Mr Pulkkinen’s email;

(b)    when asked whether it was his evidence that Dr Weavers was mistaken in his recollection, Mr McCarthy merely said that with regards to cumulative impact, he did not recall anything of that nature being discussed; and that, if it had, they would have requested an email; and

(c)    Mr McCarthy agreed that, during the telephone discussion on 19 August 2010, Ms Pulkinnen had raised the issue of cumulative impact by talking about the pressure on the species in the wider region. Ms Pulkinnen did not refer to that issue in her email of 20 August 2010 and yet Mr McCarthy did not make any reference to that issue not being raised by Ms Pulkkinen in his email reply to her on 23 August 2010.

114    Accordingly, I prefer Dr Weaver’s evidence as to the content of the telephone conference on 8 September 2010.

115    However, such findings require to be considered further in this context.

116    The Statement of Reasons at paras [36] and [37] specifically refers to six separate developments and three pending developments that were taken into account as part of the “cumulative impact” of the applicant’s proposal.

117    It is not in dispute that notice of those nine developments or the issue of “cumulative impacts” were never addressed in writing in any of the extensive communication between the applicant and the Department advising the respondent’s delegate. Indeed, this was the evidence of Mr Famiano. So much appears to have been accepted by Dr Weavers.

118    While under cross-examination, Dr Weavers did not regard the email following the 8 September 2010 telephone conversation to be a recollection of what was discussed, he did describe it as “more of a to-do list”. That the applicant should address or comment upon any alleged cumulative impacts of other developments specified or at all was not on the “to-do list”.

119    The respondent submits that the fact that, in written communications between the Department and the applicant, the Department did not specifically seek the applicant’s comments on the cumulative impacts of other developments provides no basis for asserting that the applicant was not aware of that issue.

120    It contends there was no reason why the Department needed to seek any comments from the applicant about the relevance of the cumulative aspects of the proposed development and other developments, as the applicant was well aware that the Department and the delegate assessed individual projects in the context of cumulative impacts, and the applicant could make submissions about that issue if the applicant wished.

121    I find, even accepting as I do, the evidence of Dr Weavers that the references to “cumulative impacts” was only raised in the most general terms, that it was not raised in a way so as to adequately direct the applicant’s mind as to what, in that context, needed to be addressed by it.

122    I find that the particular developments referred to and relied upon by the respondent’s delegate in the Statement of Reasons at paras [35]-[38] were not brought to the applicant’s attention. Dr Weavers, in effect, accepted that, mainly, this was the case. This was information peculiarly within the knowledge of the respondent. Mr Famiano gave evidence under cross-examination, that he knew of the existence of only one of the other developments referred to and, even in that case, not as a result of any communication with the Department. Mr Carter’s evidence was that the developments were not referred to at any time. That evidence was not challenged. Nor was there any challenge to the evidence to the same effect from Mr McCarthy. There can be little doubt that the applicant could not have known about “intended development … in the Mandurah area” referred to by Dr Weavers.

123    If the respondent did not inform the applicant as to those developments, actual and intended, which were to be taken into account and which were central to the decision-making process how could the applicant inform itself in order to make reasoned submissions. Such matters should not be a guessing game. Fairness, in my opinion, required the respondent to disclose with specificity what other developments, actual and intended, were to be taken into account. It was not sufficient merely to raise cumulative impact as a topic. The ventilation by a decision-maker of a particular topic or factor might be sufficient in some cases in affording procedural fairness. It was not so in this case.

124    The parties accept that the rule of natural justice that procedural fairness be afforded to the applicant applies in the context of this case and the relevant legislation. I think that they are correct in that view: Annetts v McCann (1990) 170 CLR 596 at 598.

125    However, the requirements of natural justice are neither absolute (R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J; nor rigid (R v The Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552).

126    As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah at [143]:

The rules of natural justice are flexible and adaptable to the particular circumstances of each case.

127    Once it is accepted that a person’s interest may be seriously affected by the exercise of a statutory power an opportunity ought ordinarily be given to that person concerned to respond to adverse information that is credible, relevant and significant to the decision to be made: Kioa v West 159 CLR 550 at 629; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah at [191] per Kirby J).

128    The delegate relied on information which went to the core of the issue for determination. This information should have been disclosed to the applicant and an opportunity given to respond: (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah at [147] per McHugh J).

129    The relevant information here was not merely the fact that the delegate would take other developments into account: it was what those developments were, both actual and intended, and what was said to be their likely cumulative impact on the foraging and breeding habitat of the Black Cockatoo. The applicant did not have that information. The respondent did but did not provide it to the applicant. Thereby, the applicant was denied procedural fairness which is the relevant rule of natural justice relied upon by it.

The cumulative impacts and the Johnstone Report

130    In addition to the general failure to put the applicant on notice of the substance of the cumulative impact to be relied upon by the respondent’s delegate, there is a particular relevance of those matters to the assessment of the Johnstone Report.

131    This arises out of the fact that the Reconsideration Brief and the Statement of Reasons at para [33] stated that “it is not clear if the experts ... [are considering] this project in isolation or if they are aware of the details of, or are considering this project in the context of, current clearing patterns in the local area”, and then proceeded upon the assumption, adverse to the applicant, that they had not considered the broader context. This was a reference to the several other projects detailed in ensuing paragraphs of the Reconsideration Brief, repeated in paras [36]-[38] of the Statement of Reasons.

132    This approach, ultimately characterised by senior counsel for the respondent as an “assumed deficiency” in the Johnstone report was readily accepted by Dr Weavers:

Now, and you settled that form of words in relation to this proposal?---I did.

And do I understand the effect of that to be that the conclusion of Mr Johnstone that the clearing in the project will not have a significant impact on the species of black cockatoos is called into question by what you have said is not clear from the reports?---Yes.

So it poses a question about the report, but it doesn’t answer it, does it?---It does not answer it, no.

But it assumes on what follows, that the answer is that the experts have not taken into consideration current clearing patterns in the local area or the context?---Yes, it does that.

133    Accordingly, the respondent posed for itself a question, answered it without reference to the applicant, and did so in a way which was adverse to the applicant and which was central to the reasoning of the delegate in reaching the Reconsideration Decision.

134    That this “assumed deficiency” was not brought to the applicant’s attention was confirmed by Dr Weavers in cross-examination.

And you cannot point to one written communication in which an officer of the Department, prior to that statement being settled by you, said to anybody at LandCorp that it is not clear whether Mr Johnstone considered the project in isolation or took into account the current clearing patterns?---No. There was no written evidence of that, no.

In fact, you cannot point to any occasion upon which there’s a record of that having been said to anybody from the Department?---There’s no record of that being raised, no.

...

And the purpose of that email was to identify the matters which the department and the delegate would need to take into account for the purposes of making the decision as to whether it was a controlled action?---Yes.

And it only refers to matters as to the department's logic and how the - what hectarage would be cleared and how the boundaries were determined and in relation to certain other outcomes to be achieved?---Yes.

It does not say anything about either one of the things being useful or important, the effect of any other development on the impact of this project?---No, it does not.

And so not only it doesn't refer to that topic generally but it certainly doesn't identify the particular developments which were then referred to in the advice to the delegate?---No, it does not.

Nor does it refer in any way to what is regarded as either a contradiction or a lack of clarity in what Mr Johnstone has said?---No, it does not.

Seeking clarification as to what the answer the question posed in the brief to the minister might be?---Yes.

That would have been a simple question to ask, would it not? Did Mr Johnstone take into account the clearing patterns in the area?---That would have been a simple question to pose, yes.

Yes. And you wouldn't have had to then assume that he didn't if you had asked that question if you were intending to rely upon that as an issue?---Yes.

135    Self-evidently, if the assumption drawn by the Department was wrong then the Reconsideration Decision may very well have been in line with the opinion of Mr Johnstone who was accepted by the Department as an expert on the issue for reconsideration.

136    However, it is not necessary to determine what the answer from the applicant would or was likely to have been. The respondent did not contend that any putative answer would have made no difference to the delegate’s decision.

137    It is apparent that the delegate assumed that these other projects and their cumulative effect were not taken into account in the Johnstone Report. I accept that, if it were otherwise, it is difficult to see how the delegate could reasonably have arrived at a conclusion, upon the statutory question, directly opposite to that of the experts in the Johnstone Report.

138    This “assumed deficiency” was a matter which, in the circumstances, fairness required be put to the applicant for comment. It was not simply a matter going to the reasoning process of the respondent’s delegate, but rather went to the identification, as a matter of fact, of what was Mr Johnstone’s actual view. Given the importance of the Johnstone report, as part of the “substantial new information about the impacts of the action”, the assumed deficiency in this report was a matter about which the delegate should, as a matter of fairness, have raised her concerns as to the basis upon which the report rested, and afforded the applicant an opportunity to be heard as to those concerns.

139    Finally, it is apparent that the views expressed in the Johnstone Report were discounted, at least in part, because of concerns regarding whether the authors “considered the project in isolation” and as to the impact upon certain recommendations on the authors’ conclusions. The first matter in particular has added significance, given that the Reconsideration Brief and the Statement of Reasons relied upon the fact that the Minister had approved clearing of strands of Cockatoo habitat in other areas and was considering other applications to do so.

140    The respondent’s delegate therefore relied upon a notion of “cumulative impact” of the applicant’s proposal both as:

(a)    a reason, in itself, for concluding that the proposal would have a significant impact upon Carnaby’s Black Cockatoo; and

(b)    a reason for doubting the findings of the Johnstone Report as to the effect of the proposal itself.

Unreasonableness

141    There remains a question as to whether the ground of Wednesbury unreasonableness applies to grossly unreasonable fact finding, as opposed to exercises of discretion: Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143 at [107]-[110]. The applicant submits that it does so apply in a case such as the present.

142    The applicant submits that to have found that the adverse impacts (if any) of the applicant’s proposal were “likely to have a significant impact” on the species Carnaby’s Black Cockatoo in the face of the Johnstone Report, and in circumstances where the finding as to the habitat of those cockatoos was contrary to the Department’s own guidelines was unreasonable in the Wednesbury sense. This last submission refers to the fact that the Departmental “definition” of breeding habitat is 3 or more trees with a diameter at breast height of 500mm or greater. However, when the 2009 Draft Guidelines are considered, it is apparent that the rationale for this definition does not apply to Carnaby’s Black Cockatoo, which require trees at least 680mm diameter at breast height.

143    The respondent submits that this challenge is in effect, an attack on the merits of the decision. The respondent argues that the delegate did have regard to the views expressed in the Johnstone Report; and, as a result, found that there was not a likely significant impact of the proposed action on two of the three listed species of Black Cockatoo, but reached a different conclusion in relation to Carnaby’s Black Cockatoo and was unable to be satisfied that the proposed action would not be likely to have a significant impact on Carnaby’s Black Cockatoo, notwithstanding the contrary view in the Johnstone Report.

144    It seems to me, in light of my conclusions as to a denial of natural justice that this ground of appeal sits in a context which is deficient. The question of whether there was unreasonableness ought not be judged in circumstances where the decision was made without the input of the applicant on the issue of cumulative effect. There is often an overlapping, albeit unclear, relationship between unreasonableness, natural justice and error of law: Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 427. I find myself, in the context of this deficiency, unable to conclude that unreasonableness has been established.

Orders

145    It is sufficient to resolve this application by reference to the provisions of the ADJR Act. There will be orders under s 16(1)(a) and (b) of that Act quashing the Reconsideration Decision and referring the matter to which that decision related to the respondent for reconsideration according to law and taking into account these reasons in affording the applicant natural justice. I will hear the parties on the question of costs and they have liberty to apply in that respect.

Associate:

Dated:    15 March 2012