FEDERAL COURT OF AUSTRALIA

SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT (VIC) v MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES (CTH) [2013] FCA 1

SUMMARY

1    In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au. This summary is also available there.

2    This decision relates to an amended application filed in this Court on 14 June 2012 by the Secretary to the Victorian Department of Sustainability and Environment (“the applicant”). The applicant sought judicial review of a decision of the Commonwealth Minister for Sustainability, Environment, Water, Population and Communities (“the respondent”).

3    In December 2011, the applicant referred a proposal to the respondent under s 68(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”). The Victorian Department proposed to conduct a research trial to investigate fuel and bushfire risk management in Victoria’s high country using strategic cattle grazing, and considered that this proposed action was a “controlled action” under the EPBC Act requiring referral under s 68. Nine of the 10 proposed sites for the trial were partly or wholly within Victoria’s Alpine National Park.

4    On 31 January 2012, the respondent made the challenged decision. The decision, made under s 74B of the EPBC Act, was that the proposed action would clearly have unacceptable impacts on a matter protected by Part 3 of the EPBC Act and that Division 1A of Part 7 should apply to the referral. Specifically, the respondent considered that the proposed action would clearly have unacceptable impacts on the National Heritage values of the Australian Alps National Parks and Reserves, of which Victoria’s Alpine National Park forms part. The effect of the challenged decision was that the respondent would not further consider approval of Victoria’s proposed action under the EPBC Act unless Victoria modified its proposal and resubmitted it, or sought reconsideration of the decision under s 74C(3). The applicant did not take either of these steps. Instead, the applicant brought this proceeding.

5    The applicant challenged the respondent’s decision on four grounds. First, the applicant claimed that the respondent was not permitted by s 74B of the EPBC Act to take into account material that was not in the applicant’s referral, because that section states that the decision is to be made “on the basis of the information in the referral”. In making his decision, the respondent considered one article and two reports that the applicant had not provided in his referral documents, as well as advice produced internally in the Commonwealth Department. The applicant argued that this made the decision invalid.

6    Secondly, the applicant claimed that the EPBC Act did not protect all National Heritage values, but only those whose protection was appropriate and adapted to give effect to Australia’s obligations under article 8 of the Biodiversity Convention. The applicant argued that the respondent’s decision relied on unacceptable impacts on National Heritage values including “recreation” and “aesthetic characteristics”, which he claimed were not protected in this way and that this also made the decision invalid.

7    Thirdly, the applicant submitted that if material not included in the referral could be considered by the respondent, the Victorian Department should have had an opportunity to comment on the material considered. Because the respondent provided no opportunity to comment on the article, reports and advice considered by him, the applicant argued that the decision was not validly made.

8    Fourthly, the applicant submitted that s 74B(1) of the EPBC Act required the Minister to make two separate decisions: (a) whether relevant unacceptable impacts were clear; and (b) whether Division 1A of Part 7 of the EPBC Act should apply to the referral. The applicant argued that the respondent had only made the first decision and had assumed that the second decision followed from the first, without giving the second separate consideration.

9    None of the applicant’s four grounds are successful and, accordingly, the applicant’s amended application for judicial review of the respondent’s decision is dismissed.

10    On a consideration of the text, purpose and context of s 74B of the EPBC Act, that section does not prevent the respondent from taking into account his own and his Department’s knowledge when deciding whether a proposal would clearly have unacceptable impacts on a relevant matter. The words “on the basis of the information in the referral” in that section focus the Minister’s scrutiny on the referral, but do not prevent the Minister from drawing on his own and his Department’s knowledge in conducting that scrutiny, provided that the information in the referral is treated as the foundation for the consideration. The applicant’s interpretation of those words, as requiring the Minister to consider only the information in the referral, would deny the possibility for any effective scrutiny of referrals. The respondent was entitled to consider advice from his Department. He was also entitled to take into account the article and reports in question because they were within his own or his Department’s knowledge: they were held in the Department’s information system when the referral was received.

11    As to the applicant’s natural justice argument, it is true that, in general, a person likely to be affected by a decision must be given an opportunity to comment on adverse information likely to be taken into account. It is also true that the article, reports and advice considered by the respondent in this case were of this nature. In the context of Division 1A of Part 7 of the EPBC Act, however, Parliament has provided for a reconsideration procedure in s 74D, as a part of which the applicant would have the opportunity to respond to adverse information before the decision could become final. The decision under s 74B is, in contrast, a provisional one. This undermines the applicant’s argument that he should have been given the opportunity to respond to the materials considered before the challenged decision was made. The applicant would have an opportunity to comment on those materials if he sought reconsideration under the statutory procedure set out in s 74D, but has not yet chosen to take this opportunity.

12    The applicant’s proposed interpretation of the structure of s 74B(1) is understandable on a bare grammatical reading of the text of that section, but fails when considered in the context of Division 1A of Part 7 of the EPBC Act. The language of ss 74C and 74D, and the heading to Division 1A, reveal that, where the Minister considers that a proposal would clearly have unacceptable impacts on a relevant matter, it would follow that Division 1A of Part 7 would apply to the referral. The applicant could not satisfactorily identify any factor that might lead to a decision that that Division should not apply even if unacceptable impacts on a relevant matter were clear. Even if the applicant’s interpretation of s 74B(1) were correct, there is no evidence that the respondent failed to make the second decision in this case, or that there was any matter apart from his conclusion as to clear unacceptable impacts that he ought to have taken into account in making that second decision.

13    The applicant’s argument about the relationship between the challenged decision and the Biodiversity Convention fails for two reasons. First, the statement of reasons issued by the respondent on 31 January 2012 reveals that the respondent considered that the proposed action would clearly have unacceptable impacts on the ecology and species diversity of the Alpine National Park. This basis for the decision was independent of his subsequent findings regarding impacts on recreational and aesthetic values. As the parties accepted, the protection of biodiversity is appropriate and adapted to the implemention of Australia’s international obligations under article 8 of the Biodiversity Convention and, accordingly, there was a valid basis for the decision.

14    Secondly, the applicant’s argument depends on a misinterpretation of the EPBC Act. Section 74B requires the Minister to consider whether “it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3” (emphasis added). A “matter protected by a provision of Part 3” is defined in s 34. In this case, where ss 15B(5) and 15C(9)–(10) regulated the proposed action, this expression meant “the National Heritage values of a National Heritage place”. Effectively, in making his decision under s 74B, the Minister was only required to consider whether it was clear that the proposed action would have unacceptable impacts on the National Heritage values of a National Heritage place, which is what he did. Those values include recreational and aesthetic values. The Minister did not have to make any decision about whether prohibition of the action would be appropriate and adapted to implementing article 8 Biodiversity Convention obligations, unless and until action was taken in contravention of ss 15B(5) and/or 15C(9)–(10).

15    Finally, the respondent sought to argue that even protection of recreational and aesthetic characteristics would be appropriate and adapted to implementing Australia’s obligations under article 8 of the Biodiversity Convention. Given the above conclusions, it was unnecessary to decide this matter, although, in the absence of further argument, it would appear that Australia’s obligations under article 8 of the Biodiversity Convention would not extend so far.

16    For the reasons set out in the judgment, the applicant’s amended application for judicial review of the respondent’s decision is dismissed. The parties have fourteen days to file written submissions on costs and, if no submissions are filed, there will be an order that the applicant pay the respondent’s costs of and incidental to that application.

KENNY J

4 JANUARY 2013

MELBOURNE