FEDERAL COURT OF AUSTRALIA

Triabunna Investments Pty Ltd v Minister for the Environment and Energy [2018] FCA 486

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants’ application for judicial review is dismissed.

2.    The parties have leave to file and serve submissions on costs should they contend for orders other than as indicatively proposed in these reasons, limited to 3 pages, no later than 7 days from the date of these orders.

3.    If any party files submissions pursuant to order 2, each other party has leave to file and serve responsive submissions, limited to 3 pages, no later than 14 days from the date of these orders.

4.    Any submissions on the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

KERR J:

background

1    The Second Respondent, Tassal Operations Pty Ltd (Tassal) is a marine farmer.

2    Tassal possessed an existing marine lease in Okehampton Bay in Tasmania. The lease was used to farm shellfish and harvest seaweed. Okehampton Bay is located on Tasmania’s east coast. The town closest to it is the port of Triabunna. Maria Island lies some 7 km to the south east.

3    Tassal wanted to convert the use of its marine lease at Okehampton Bay to permit it to farm Atlantic salmon. It conducted an internal assessment of the potential impact of its proposed aquaculture activities.

4    Based on its internal assessment, Tassal thought there was no need to refer its proposal for assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).

5    Tassal corresponded with the Director of Compliance of the Commonwealth Department of Environment and Energy (the Department) regarding the proposal (Ex A2). On 16 May 2017 the Department advised Tassal that its proposed action should be referred under the EPBC Act to ensure that “the range of complex matters associated with the proposal [would be] sufficiently interrogated to inform the Minister, and the broader community as to the potential, or otherwise, of the action to impact on matters [of national environmental significance which are protected under that Act]”.

6    The upshot was that, notwithstanding Tassal continued to maintain that its proposed action was not a controlled action within the meaning of the EPBC Act, Tassal decided to refer its proposal to the First Respondent (the Minister) for determination as to whether or not it was a controlled action.

7    I make the following findings of fact regarding that process from the evidence before the Court, which in large measure was uncontentious.

8    On 29 May 2017 Tassal took steps to refer its proposal to take an action which might be subject to the EPBC Act to the Minister. It sent referral documentation with a covering letter to the Department. Its covering letter of that date indicated that the company did not consider the action to be a controlled action. The EPBC Act permits a referral in such circumstances: s 68(2) of the EPBC Act. It is not suggested that there is any legal inconsistency in Tassal maintaining that position.

9    However, it appears the referral Tassal conveyed by email on 29 May 2017 was not signed. The Department asked for a signed version of the same. On receipt of that version the Department formally recorded Tassal’s referral as having been accepted on 31 May 2017. Nothing turns on the difference in dates.

10    The action that Tassal thereby told the Minister it proposed to take was set out in its referral documentation. Consistently with Sch 2 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (the Regulations), the information that Tassal provided to the Commonwealth about its proposed action was extensive and detailed.

11    What was included in Tassal’s referral of its proposed action (that is as set out in the documents conveyed to the Commonwealth by Tassal on 29 May 2017) is reproduced in the Paginated Record of Decision Making (PRDM) from pp 66-540 and is in evidence as Ex A1. Tassal’s referral incorporated ‘Appendix A’ with its associated attachments.

12    Tassal’s covering letter had drawn the Department’s attention to Attachment 17 of its referral documents as having formed the basis of its risk assessment.

13    Close examination reveals that the numbering of the attachments Tassal had listed in Appendix A does not square with the numbering referred to by Tassal in its covering letter. The risk assessment document was not referred to in Appendix A as Attachment 17. What was referred to in Appendix A as attachment 17 was a map. In the PRDM that map is reproduced as 4A.1.18. The document Tassal provided as relevant to risk assessment referred to in Tassal’s covering letter as Attachment 17 is reproduced in the PRDM as 4A.1.17. It would therefore appear that the Department re-aligned their numbering for consistency with Tassal’s letter of 29 May 2017. However it was not suggested by the Applicants or the Minister that either of those documents had not been included in, or should not be properly regarded having been as part of, Tassal’s original referral. I accept each were and should be.

14    Section 1 of Tassal’s referral of its proposed action included, under the heading ‘Summary of your proposed action’ (Ex A1 p 68) the following:

Tassal intends to stock 86 ha of MF236 with Atlantic salmon for growout. Prior to harvest these fish would potentially occupy a maximum of 28 sea cages or pens. The Okehampton Bay Zone is the only zone (out of 17 zones) within the Great Oyster Bay and Mercury Passage MFDP area that is licensed for farming of finfish – all other zones are specified for either shellfish and or seaweed only.

The proposed action in Okehampton Bay requires the construction and placement of new infrastructure along with the movement of existing infrastructure within the lease area. This infrastructure includes:

•    Mooring and grid system – comprising of 1 x 10 pen bay and 1 x 18 pen bay mooring grids to be used in conjunction with existing moorings and longline infrastructure

•    Sea pens – 168 m circumference sea pens, of approximately 54 m diameter and 15 m depth will be used at the site. Construction material will be black in colour in order to minimise loss of visual amenity and to comply with regulatory requirements.

•    Other supporting infrastructure – existing Spring Bay Seafoods land base; on water structures (e.g. vessels, permanently moored feed barge).

15    Section 4 of Tassal’s referral of its proposed action included, under the heading ‘Measures to avoid or reduce impacts’ (Ex A1 p 88) the following:

Tassal adopts a range of measures to prevent unnecessary interactions with MNES, including:

Adoption of feeding practices that maximize food conversion rations and minimize waste

Exclusion of predators (i.e. seals) and birds from entering sea cages

Dedicated wildlife management team to control wildlife interactions and design non-lethal predator control plans

Design of sea cage configurations to avoid entanglement of MNES and escape of farmed salmon

…

16    Tassal’s referral of its proposed action also included the document headed “Environmental Risk Assessment for Matters of National Environmental Significance (MNES) for Finfish Aquaculture at Okehampton Bay” (referred to by Tassal in its letter of 29 May 2017 as Appendix 17) (Ex A1 pp 518-544). In that document, proffered in support of its contention that the action it proposed was not a controlled action, Tassal provided specific details of the actions it planned to undertake with commentary as to the risks they posed to matters protected under the EPBC Act. Much of that detail was provided in tabular form.

17    In Table 4 of that document (Ex A1 p 523) Tassal advised the Minister that with respect to “nets and mooring systems”, the system Tassal proposed using met the Aquaculture Stewardship Council’s requirements: it addressed potential impacts from salmon farms on natural habitat, local biodiversity and ecosystem function (ASC Principle 2).

18    In respect of risk from ‘Escapees’ (Ex A1 p 525) Tassal advised the Minister:

Tassal has implemented protocols to prevent the escape of farmed salmon – through installation of k-grid netting systems, routine inspection of equipment by divers. Tassal’s has not had a significant escape event in the last 10 years.

19    In Table 8 (Ex A1 p 531) in respect of risk of entanglement and entrapment for shorebirds, Tassal advised the Minister, inter alia:

Possible interactions with shorebirds (such as the Hooded Plover) from the proposed action at Okehampton Bay may include a range of known impacts. Tassal’s main focus on interactions with all bird species is to maintain exclusion from farming activities (feeding fish) through aerial bird netting, and reducing the potential onshore impacts of marine debris by using K-grid nets and minimizing the use of packaged materials.

Tassal undertakes routine shoreline clean-ups (outside of shorebird breeding seasons) to ensure the potential for entanglement/habitat modification is minimized wherever possible.

20    In Table 9 (Ex A1 p 533) and Table 10 (Ex A1 p 535) Tassal provided near identical information regarding its nets with respect to the risk of entanglement and entrapment for raptors and woodland birds respectively. It thereby advised the Minister that Tassal’s main focus on interactions with all bird species was to maintain exclusion from farming activities (feeding fish) through aerial bird netting, and reducing the potential onshore impacts of marine debris by using K-Grid nets and minimizing the use of packaged materials. In the materials before the Court, the parties variously refer to the netting technology as “k-grid”, K-grid” or “K-Grid”. For consistency, unless in a direct quote, I refer to that as “K-Grid”.

21    Tassal’s referral of a proposal to take an action was published on the Department’s website on 1 June 2017. All of the documents Tassal had provided to the Department as part of its referral except attachment 1 and attachment 14 to Appendix A were included in that publication. Those two documents were not published on the Department’s website because Tassal had claimed, and the Department had accepted, them to be “commercial in-confidence”. Nothing turns on the non-publication of those documents in this proceeding.

22    In accordance with s 74(3) of the EPBC Act, the public had ten business days to provide comment. That period expired on 16 June 2017.

23     Six responses to the invitation to comment were received. One was from the three Applicants in these proceedings. Their comments are reproduced at pp 833-1600 of Ex A1. As is self-evident from the number of pages, their comment was extensive. An appendix incorporated 17 attachments.

24    It is sufficient to note that the comment of the Applicants (Triabunna Investments Pty Ltd, Spring Bay Mill Pty Ltd and the Bob Brown Foundation Inc.) drew the Minister’s attention both to the risk of entanglement of the southern right whale posed by Tassal’s proposed action and to the adverse impact that the proposed action would, on the premises they advanced, likely have on the Darlington Probation Station on Maria Island.

25    It is uncontentious that the southern right whale was and is both a listed threatened species and a listed migratory species. It is similarly uncontentious that the Darlington Probation Station was and is both a listed World Heritage Property (Australian Convict Sites) and a property on the National Heritage List. The Applicants’ comments in those regards were therefore comments in respect of issues the Minister was entitled to consider under s 75(2)(a) of the EPBC Act. They were also comments in respect of issues that the Minister, having regard to s 75(2)(b), was required to consider in both instances assuming their comments were in respect of an “adverse impact” that Tassal’s proposed action “has or will have; or is likely to have” on those protected matters.

26    On 28 June 2017 the Department sought expert advice from an external consultant, GHD, to inform it regarding Tassal’s referral of its proposed action.

27    Tassal was then asked to provide further information. The decision record does not illuminate how that request was given effect to – but it is to be inferred that on the Minister’s behalf the Department asked Tassal for the additional information – and that it requested Tassal also to provide the further information to its consultant GHD. In any event it is plain from the decision record that the additional information Tassal provided at the request of the Minister was also provided to GHD (see Ex A1 p 649 at 2.2.2). The Minister’s request for further information ‘stopped the clock’ on the 20 days the EPBC Act provided for the Minister to make a decision under s 75(1) or, if applicable, s 75(3): see s 75(5).

28    To the extent the additional information supplied by Tassal was in writing the documents containing that additional information appear in Ex A1 at pp 541-620. Those documents are listed as 4A.2.1 to 4A.2.9.

29    It is uncontentious that the further information Tassal supplied, inter alia, focussed on the risk to the southern right whale (Ex A1 p 556). Tassal provided further information in which it accepted that one to two sightings of the southern right whale occurred most years (but not every year) but advised that no interactions with the current working lease had occurred over the past decade. The further information Tassal provided included it drawing the Minister’s attention to its protocols for managing interactions with cetaceans that might arise: Ex A1 pp 597-604. Tassal also provided additional information about both the proposed mooring system it planned to use and the ‘K-Grid’ technology it had advised the Minister in its referral documentation it intended to use as netting for its fish pens: Ex A1 pp 567-568 and pp 599-600.

30    Tassal was neither asked to, nor did it, provide additional information regarding the Darlington Probation Station (see GHD Report at 1.2 Ex A1 pp 645-646).

31    GHD reported on 27 July 2017. Its report, dated on the final page, is reproduced in Ex A1 at pp 643-729.

32    No point is taken in these proceedings that it was not open to the Department and the Minister to have sought external expert advice from GHD and to have taken GHD’s advice into account in their respective roles of providing advice and decision making.

33    None of the further information supplied by Tassal or the GHD report was then, or at any time prior to the Minister’s decision, published on the Department’s website or otherwise supplied to those members of the public who had responded to the opportunity to comment on Tassal’s proposal.

34    As to the southern right whale, GHD’s report noted that additional information had been required from the respondent (see 2.2.2 at Ex A1 p 649) but having regard to that additional information GHD advised at 2.4.2 (Ex A1 pp 653-654):

The proposed action is located within Okehampton Bay, which adjoins the Mercury Passage. The Mercury Passage is identified as a hotspot for Southern right whales and their calves, and high site fidelity has been observed in returning individuals. However, the location of the proposed action is unlikely to restrict species migratory movement. The design of the proposed action, including having taught [sic] mooring lines and heavily weighted fish nets, reduce the likelihood of entanglement to the species. Risks of vessel strike to the species are reduced through management of vessel speed and staff training.

The proponent also noted there have been no known interactions with cetaceans at other finfish farms operated by the proponent in southeast Tasmania.

The GHD assessment determined that the proposed action poses a low risk to this species.

35    After it received GHD’s report the Department prepared a brief for the Minister (Ex A1 pp 48-65). Attachment H (commencing at Ex A1 p 805) noted for the Minister’s attention that one submission (which can be accepted to be a reference to the comment provided by the Applicants in these proceedings) had stated that Tassal’s referral had not acknowledged “the existence of the World Heritage and national estate values of Maria Island or the potential impacts on these areas”. It is uncontentious that the Minister was required to consider that comment: s 75(1A). The Department’s advice to the Minister in respect of that comment (Ex A1 p 805) was:

The Darlington Probation Station on Maria Island has been listed as a National Heritage place and World Heritage property under the EPBC Act as part of the Australian Convict Sites serial listing. The site has 13 intact structures set in a relatively unchanged landscape. There are no marine or maritime elements to the heritage listings. There are no direct threats to the Darlington convict site as a result of the proposed action.

As these buildings are located on land approximately 9.5 km away from the proposed aquaculture, the Department considers it is unlikely the proposed action will impinge on values, amenity and management.

36    In respect of the southern right whale, the Department advised that if the action Tassal had proposed was not taken in accordance with the specified manners the Department recommended there was a real chance that Tassal’s action would, or would be likely to have a significant impact on the southern right whale and other migratory whale species (see Ex A1 p 49). It then advised (Ex A1 pp 53-54):

Publicly available papers and reports on southern right whales do not record any deaths due to entanglement with fish farm infrastructure. Past records of entanglement have involved marine farming activities where equipment such as mussel ropes, lobster pots, and anti-predator nets had either come loose and/or were drifting. One non-fatal entanglement has been recorded in association with a Tasmanian fish farm.

The mooring and netting design proposed by the proponent aims to minimize loose ropes or netting through the use of: taut moorings; bundled feed and servicing lines; and heat and resin treated knotless woven nets (k-grid technology) that eliminate the need for anti-predator nets. The proponent has also committed to a number of mitigation measures to minimise marine debris, noise disturbance and vessel strike.

GHD stated that the design (k-grid technology) of the proposed action reduces the likelihood of entanglement, and that the proposed mitigation measures for noise attenuation and vessel strike were likely to reduce the risk of disturbance, injury or death to southern right whales to a low level. GHD also stated that the location of the proposed action is unlikely to restrict the species migration movement (Attachment D).

Given the progressive return of southern right whales to the Mercury Passage, and the likelihood that the area may increase in importance for the recovery of the species, the Department considers that the adverse impacts of the action on southern right whales will only be reduced below significant if the proposed action is undertaken in accordance with the particular manners set out in the proposed decision notice at Attachment J, and summarised below:

•    To reduce the risk of vessel strike and noise disturbance:

•    Vessels be restricted to 5 knots for vessels within the lease area.

•    Marine mammal observer on-board vessels whenever in use during daylight hours. Operations must take place in daylight hours except in emergencies or when security checks are undertaken - in these circumstances and in low visibility, a navigational sonar must be used to detect whales.

•    Operations (vessel and noise generating activities") must be shut down if a whale is observed within 1 km of vessels.

•    To reduce the risk of entanglement:

•    Moorings, ropes, nets and lines must be kept taut.

•    Fish pen nets must be inspected at least daily; and fish pen nets, ropes and lines must be inspected at least weekly below the water line.

•    Prompt repairs must be made to nets, ropes and lines.

•    In the event of entanglement, Tassal's Response Protocol For A Whale Sighting, Entanglement or Stranding, April 2017, must be implemented.

The Department's draft strategy outlines impacts of vessels strikes, including vessel speed and size of the vehicle. The strategy states that 89% of incidences where a whale was severely hurt or killed occurred at vessel travelling speeds greater than 14 knots and were most serious in large vessels (> 80 m). Furthermore, the chance of an injury being lethal increases sustainably [sic], as vessel speed increases up to 15 knots. The vessel strike measures proposed by the proponent are consistent with the draft strategy, the measures proposed reduce vessel speed to 5 knots and include whale observations and a shutdown procedure. The Department considers that provided these particular manner requirements are implemented, the likelihood of impacts on the species due to vessel strike, entanglement, or noise disturbance will be very low, and that significant impacts to the species are therefore not likely.

These particular manners form part of detailed mitigation and management measures for minimising risks to whales that were proposed by the proponent as part of additional information submitted to the Department during July 2017. The Department therefore considers the particular manners specified in the proposed decision notice for part of the proposed action.

(Footnote omitted.)

37    On 1 August 2017 a delegate of the Minister considered and signified his agreement with all of the Department’s recommendations. It will be convenient in these reasons to refer to that decision as the Minister’s decision and to the decision-maker as the Minister. It is not contended that the relevant power had been unlawfully delegated. It is not suggested that the decision making power as exercisable by the delegate differed from that conferred on the Minister – the same applies to the reasons subsequently provided by the Minister’s delegate.

38    The Minister’s notation signified that he agreed with the reasoning in the Departmental briefing and would take the action recommended. It can be accepted that he therefore decided that Migratory Species (ss 20 and 20A) and Threatened Species and Communities (ss 18 and 18A) were not controlling provisions because the action proposed by Tassal was to be taken in a particular manner. The Minister signed the draft notice at Attachment J of the Department’s briefing paper in which the relevant manner provisions he had agreed to were set out.

39    The Minister thereby also decided that World Heritage and National Heritage (and eight other potential controlling provisions not relevant to these proceedings) were not controlling provisions of the EPBC Act in respect of Tassal’s proposed action (see the boxes marked with an ‘X’ at Ex A1 p 48).

40    The Minister subsequently complied with, or purported to comply with, the obligation to give notice of his decision that Tassal’s action was not a controlled action provided it was undertaken in a particular manner, as required by ss 77 and 77A of the EPBC Act.

41    The notice, signed by the Assistant Secretary of the Assessments and Governance Branch of the Department as a “person authorised to make [the referral] decision”, was in the following terms (excluding introductory matters):

[M]anner in which proposed action must be taken

The following measures must be taken to avoid significant impacts on listed threatened species and communities (sections 18 & 18A) and listed migratory species (sections 20 & 20A), in particular but not limited to the southern right whale (Eubalaena australis):

1.    To reduce the risk of vessel strike and noise disturbance:

a.    vessel speed must not exceed 5 knots within the lease area;

b.    vessel operations must take place in daylight hours only, except during an emergency or when security checks are being undertaken;

c.    a marine mammal observer responsible for looking for and identifying whales must be on-board the vessel and during vessel operations in daylight hours;

d.    navigational sonar must be installed on all vessels and must be in use for vessel operations outside daylight hours and in low visibility; and

e.    vessel operations and noise generating activity must be shut down if a listed threatened or migratory whale species is observed within one (1) kilometre of the vessel and vessel operations and noise generating activity must not recommence until all listed threatened or migratory whales have moved more than one (1) kilometre away from the vessel.

2.    To reduce the risk of entanglement:

a.    moorings, ropes, nets and lines must be kept taut;

b.    fish pen nets must be inspected at least daily;

c.     fish pen nets, ropes and lines must be inspected at least weekly from below the water line when safe to do so; and

d.    repairs must be made to nets, ropes and lines as soon as it is safe to do so. If additional equipment is required to complete a repair, loose lines, ropes or damaged equipment must be secured to reduce the risk of entanglement until repairs can be completed.

3.    In the event of entanglement, implement the Response Protocol.

Note: To avoid any doubt, these particular manner requirements are strict requirements to be observed by Tassal including if whales, notably the southern right whale, are more frequently observed in the area.

Definitions

Daylight hours - means the time between sunrise and sunset at the location of the proposed action.

Emergency - means where repairs are required as a result of storm damage or as a result of fish health or welfare issues defined as mortality rate exceeding 0.25% per day for three consecutive days.

Lease area - means lease number MF236, Zone 4 - Okehampton Bay, as defined in the Great Oyster Bay and Mercury Passage Marine Farming Development Plan.

Low visibility - means outside daylight hours and when observations cannot extend to 3 kilometres from the vessel e.g. during fog or periods of high winds.

Marine mammal observer - means a suitably trained person who is trained in marine fauna observation, distance estimation and reporting; responsible for looking for and identifying whales immediately prior to and during vessel operations within the lease area during daylight hours except for periods of low visibility.

Navigational sonar - means a forward facing navigational sonar that is used in conjunction with a nautical chart; to be installed on all vessels and to be used to identify whales prior to and during vessel operations outside daylight hours and in periods of low visibility.

Noise generating activity(ies) - means the use of generators, pumps, vacuums or other boat-mounted apparatus that cause noise exceeding 120dB re 1 μPa to travel beyond 1 kilometre underwater from the sound source.

Observed - means whales being identified by either (1) the marine mammal observer during daylight hours or by (2) the navigational sonar outside daylight hours or in low visibility.

Repair(s) - means the mending or removal of loose lines, ropes or damaged equipment.

Response Protocol - means Tassal's Response Protocol For A Whale Sighting, Entanglement or Stranding April 2017.

Security checks - means night safety monitoring, to be undertaken in a vessel of no more than 9 metres in length.

Shut down - means noise generating activities cease and the vessel engine is placed in neutral to stop propeller movement.

Taut - means pulled tight and not slack with the exception of normal tidal, wind and wave influences.

Vessel(s) - means any sea-going vehicle used by the person taking the action to conduct any aspect of the proposed action.

Vessel Operations - means any vessel movement activity required to be undertaken at the lease area, including but not limited to inspections, net cleaning vessel movements, monitoring, and transit to and from the lease area.

(Emphasis in original.)

42    On 13 September 2017 the Minister provided a formal statement of reasons for his decision. He did so at the request of the Applicants. His statement of reasons is reproduced in Ex A1 at pp 8-47.

43    Under the heading “Background” and the subheading “Description of the proposal” the Minister referred to Tassal’s proposal as follows:

1.    The proposed action involves the installation and operation of a finfish (salmon) farm at Okehampton Bay, Tasmania, 65 km northeast of Hobart. The farm will operate in 18 month production cycles to grow up to 800 000 smolt (a fish that is around 1 year old and needs salt water to continue to grow) to harvestable size. The proposed action will replace an existing seaweed and blue mussel farm.

2.    Twenty eight pens will be arranged within the lease area, covering 86 ha of the 100 ha lease. Moorings will consist of 120 5 ton concrete mooring blocks, joined with chains kept at high tension and secured with 60 1.5 ton anchors. Pen nets will be made using 'k-grid' mesh technology: a high tenacity knotless resin-treated woven net. No antipredator nets will be used.

3.    The referral documentation states that the proposed action includes a permanently moored mobile water barge located on the lease, which will include a desalination function to be used for fish washing purposes. Fish are washed between moving from the hatchery to the sea when the fish are at smolt stage, to prevent gill disease. Waste water will be disposed of at an approved land-based disposal facility.

44    With respect to his belief that the action Tassal had proposed was not a controlled action provided it was taken in the particular manner he had given notice of, the Minister concluded:

34.    Given the progressive return of southern right whales to the Mercury Passage, and the likelihood that the area may increase in importance for the recovery of the species, the Department considered, and I agreed, that, by itself, the action will have, or is likely to have, a significant impact on an endangered species and would therefore be a controlled action for the purposes of ss 18 and 18A of the EPBC Act, due to the potential impact from entanglement, vessel strikes and noise disturbance. Specifically, the proposed action could have a significant impact by causing a long term decline in a population of southern right whales, adversely affecting habitat critical (breeding habitat) to the survival of the southern right whale or disrupting the breeding cycle of a population.

35.    However, the Department also considered, and I agreed, that the adverse impacts of the action on southern right whales will be reduced below significant if the proposed action is undertaken in the particular manner set out in the decision notice, and summarised below:

a.    To reduce the risk of entanglement:

i.    Moorings, ropes, nets and lines must be kept taut.

ii.    Fish pen nets must be inspected at least daily; and fish pen nets, ropes and lines must be inspected at least weekly below the water line.

iii.    Prompt repairs must be made to nets, ropes and lines.

b.    In the event of entanglement, Tassal's Response Protocol For A Whale Sighting, Entanglement or Stranding, April 2017, must be implemented.

c.    To reduce the risk of vessel strike and noise disturbance:

i.    Vessels must be restricted to 5 knots for vessels within the lease area.

ii.    Marine mammal observer responsible for looking for and identifying whales must be on-board vessels whenever in use during daylight hours.

iii.    Operations must take place in daylight hours except in emergencies or when security checks are undertaken - in these circumstances and in low visibility, a navigational sonar must be used to detect whales.

iv.    Operations (vessel and noise generating activities, as guided by the South Australia Department of Planning, Transport and Infrastructure's Underwater Piling Noise Guidelines, 2012) must be shut down if a whale is observed within 1km of vessels.

36.    The Department considers that, provided these particular manner requirements are implemented, the likelihood of impacts on the species due to vessel strike, entanglement, or noise disturbance will be very low, and that significant impacts to the species are therefore not likely.

37.    These particular manners were proposed by the proponent as part of additional information submitted to the Department during July 2017.

Conclusion

38.    For the reasons set out above, the Department considered, and I agreed, that, if not taken in accordance with the specified particular manners, there is a real chance that the action would, or would be likely to, result in a significant impact on the southern right whale and would therefore be a controlled action for the purposes of sections 18 and 18A. In particular, the action could have a significant impact by causing a long term decline in a population of southern right whales, adversely affecting habitat critical (breeding habitat) to the survival of the southern right whale or disrupting the breeding cycle of a population.

39.    However, as the discussion above demonstrates, if the proponent takes the action in the particular manners specified in the decision notice, the Department considered, and I agreed, that the action would not be a controlled action for the purposes of sections 18 and 18A because the action will be taken in a manner that will ensure the action will not have, and is not likely to have, a significant impact on the southern right whale, namely: entanglement; noise; and vessel impacts.

45    With respect to his decision that neither World Heritage nor National Heritage places were relevantly controlling provisions the Minister set out his reasoning as follows:

Section 12 and 15A - World Heritage properties

92.    Eleven Australian Convict Sites received World Heritage listing in 2010 for the stories that sites, including Darlington Probation Station on Maria Island in the vicinity of the proposed action, tell about the movement of people across the world, and how a new nation is formed from hardship, inequality and adversity. Collectively, the convict sites represent a time of convictism during the 18th and 19th centuries, and form part of the history of global developments in the punishment of crime in modern times.

93.    There will be no physical impacts resulting from the proposed action on the Darlington site. The proposed action will not affect the spaces, form or setting of the site's buildings or structures, or the meaning that can be found in their layout as it applies to its convict past, or the probation system.

94.    It is likely that the fish farm will be visible from the Darlington site, and the lease area has been an active commercial operation for seaweed and blue mussels for a number of years prior to this proposal. The Department considers the visual impact from the installation of 28 pens over 7 km distant from the site is unlikely to cause a substantially greater visual effect on the listed site than is already present.

95.    The Department notes that the listed values of the site do not include maritime values, such as important naval activity or stories of Australian lives at sea. The listed values also do not include the natural values of the Maria Island Marine Reserve, which runs along the west coast of Maria Island, adjacent to the site.

96.    Based on the above, the Department considers the proposed action will not substantially alter the fabric of the World Heritage site, have substantial impacts on the site's values or make any notable changes to form or setting. Therefore, the Department considered, and I agreed, a significant impact on the World Heritage values of the Darlington Probation Station Australian Convict Site is unlikely.

Sections 15B and 15C - National Heritage places

97.    The Darlington Probation Station on Maria Island is a National Heritage place and is the most outstanding representative example of Tasmania's 78 probation stations. The site's isolation and plentiful natural resources made Darlington an excellent location for a probation station from 1842, and previous penal settlement from 1825. Thirteen of the original buildings and structures remain, and together provide a unique insight into the philosophy behind the probation system.

98.    As mentioned above, the Department considered the values for which the property was listed would not be lost, degraded or altered by the establishment of a finfish farm at Okehampton Bay. While the farm is likely to be visible, the presence of pens low to the water over 7 km distant from the site is unlikely to detract from the meaning derived from the buildings and structures, and what they represent in Australia's history.

99.    The Department considered the proposed action would not substantially alter the fabric of the National Heritage place, have substantial impacts on the site's values or make any notable changes to form or setting. Therefore, the Department considered, and I agreed, a significant impact on the National Heritage values of the Darlington Probation Station is unlikely.

46    On 24 October 2017 the Applicants filed and served an amended application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in which they sought review of the referral decision that had been made by the Minister and the conduct of the Minister in relation to the making of that decision. The Minister was named as the first respondent; Tassal as the second.

47    In their amended originating application the grounds the Applicants relied on and the relief they sought were stated as follows:

Grounds of application

1.    In making the decision, the First Respondent:

a.    failed to observe the procedures that were required by law to be observed in connection with the making of the decision;

b.    improperly exercised the power conferred by the enactment in that

i.    the exercise of the power was so unreasonable that no reasonable person could have so exercised the power;

ii     the result of the exercise of the power is uncertain;

c.    erred in law;

d.    made a decision that was contrary to law,

in that he failed to comply with his obligation under s 77A (1) of the EPBC Act to identify the particular manner in which he believed the action would be taken.

Particulars

Having found that:

(a)    the action will have, or is likely to have, a significant impact on an endangered species, namely the southern right whale, due to the potential impact from, inter alia, entanglement (reasons [34]);

(b)    measures must be taken to avoid adverse impacts on the southern right whale to reduce the risk of entanglement,

(c)    the mooring and netting design proposed by the Second Respondent aimed to minimise risk to whales through, inter alia

a.    bundled feed and servicing lines; and

b.    the use of heat and resin treated knotless woven nets (K-grid technology) that eliminate the need for anti-predator nets (reasons [30]);

the First Respondent formed the belief that the action would be taken in the manner set out in (c) above.

Having formed that belief, the First Respondent failed to specify, as part of the manner in which he believed the action would be taken, that the second Respondent’s project would utilise:

(i)    bundled feed and servicing lines; and

(ii)    K-grid technology.

2.    In making the decision, the First Respondent erred in law in that he failed to consider, as required by s 75(2) of the EPBC Act, all adverse impacts the action has or will have or is likely to have on a matter protected by Part 3, namely the National Heritage values of the Darlington Probation Station

Particulars

a.    The First Respondent failed to consider the potential adverse impacts which the two (2) permanently moored barges, and any equipment on those barges, will have on the National Heritage values of the Darlington Probation Station.

b.    The First Respondent failed to consider the potential adverse impacts which noise from the action will have on the National Heritage values of the Darlington Probation Station.

c.    The First Respondent failed to consider the potential adverse impacts which light from the action will have on the National Heritage values of the Darlington Probation Station.

d.    The values include:

i.    the Darlington Probation Station is ‘With[in] a natural environment setting that has few competing elements, the precinct possesses a rare sense of place’; and

ii.    Darlington Probation Station’s ‘isolated location’

3.    The making of the decision, alternatively the conduct of the First Respondent in relation to the making of the decision, involved a denial of procedural fairness to the Applicants and to other members of the public interested in the assessment of this action

Particulars

a.    In making a decision under s 75, or alternatively in engaging in conduct for the purpose of making such a decision, the First Respondent is required to afford members of the public, and interested persons such as the Applicants, a reasonable opportunity to be heard about whether or not the action is a controlled action and which provisions of Part 3 are the controlling provisions.

b.    Procedural fairness required the First Respondent to provide to members of the public, and interested persons such as the Applicants, a copy of documents provided to the First Respondent by the Second Respondent and by any consultants or advisers retained by the First Respondent in relation to his assessment of the referral where such documents raised substantial issues as to the merits, veracity, adequacy and/or reliability of the Referral.

c.    The First Respondent did not give the Applicants, or other interested members of the public, a fair or reasonable opportunity to be heard and thus denied them procedural fairness by failing to provide to them:

I.    the additional information provided by the Second Respondent (as detailed in [19 a] and [19 b] of the statement of reasons dated 13 Sep 17);

II.    the final report by GHD (as detailed in [19 e] of the reasons); and

III.    the comments and agreement from the Second Respondent (as detailed in [19 g] of the reasons).

Orders sought

1.    A declaration that the decision is invalid and of no effect.

2.    An order setting aside the decision, effective from 1 August 2017.

3.     Such further or other orders as the Court deems fit.

4.     Costs.

48    The standing of the Third Applicant, the Bob Brown Foundation Inc., to bring these proceedings was conceded by the Respondents. The Court was advised during a case management hearing on 24 October 2017 that the Respondents did not accept the standing of the First and Second Applicants, but no point would be taken in that respect provided that their submissions were in common with those made on behalf of the Third Applicant. Save for a matter arising during the hearing that is referred to later in these reasons, the proceedings were conducted on that basis.

Ground 1

49    The submissions of the parties evolved in the course of argument. However it is convenient first to set out the respective parties’ commencing positions as stated in their written submissions.

The Applicants’ written submissions

50    The Applicants submitted that it was not contentious that Tassal’s proposed action, by itself and without mitigation measures, would have the potential to impact the southern right whale because of the risk that Tassal’s nets and mooring system would create in respect of possible entanglement.

51    The Applicants submitted that Tassal accordingly had proposed a number of specific “avoidance and mitigation measures” which the GHD report (which the Minister had had regard to) had taken account of. They submitted that the GHD report had proceeded on the following assumptions: (a) that Tassal’s proposed action would be undertaken in accordance with Tassal’s original referral submission and the additional information supplied by it; and (b) that all management and mitigation measures outlined in Tassal’s referral or the additional information it had supplied would be carried out. It was on that basis they submitted that GHD had concluded that the design of the proposed action reduced the likelihood of entanglement such that the proposed action posed a low risk to the southern right whale.

52    Referring to the decision taken by the Minister, the Applicants submitted the Minister’s reasons had adopted GHD’s assumptions; the Minister’s reasons in terms had specifically referred to the critical importance of the use of “k-grid technology” and bundled lines a number of times.

53    The Applicants then submitted:

13.    In deciding whether the proposed action is a controlled action or not, the delegate:

a.    decided that the proposed action would be a controlled action under ss 18, 18A, 20 and 20A due to the risk of entanglement (reasons [34] and [85]); and

b.    made a component decision under s 77A(1) that each of ss 18, 18A, 20 and 20A is not a controlling provision because the Minister believed the proposed action will be taken in a particular manner (reasons [35] and [85]).

14.    The applicants submit that the Court should infer that the component decision was that ss 18, 18A, 20 and 20A would not be controlling provisions because the delegate believed, among other things, that the proposed action would use k-grid technology and bundled lines to reduce the risk of entanglement.

Minister failed to observe procedures that were required by law to be observed

15.     The s 77A(1) duty to set out the component decision, identifying the provision and the particular manner in the s 77 notice, is a procedure required by law to be observed in connection with the making of the s 75 decision.

16.     Notwithstanding that the component decision was based on the delegate’s belief that the proposed action would use k-grid technology and bundled lines to reduce the risk of entanglement, the particular manner set out in the s 77A notice (and the reasons at [35] and [85]) did not include the use of k-grid technology and bundled feed lines. The applicants submit that the procedure required by s 77A(1) was not observed because the s 77 notice did not set out the use of k-grid technology and bundled lines as part of the particular manner.

Exercise of the power was unreasonable

17.     An administrative decision must not be so unreasonable that no reasonable decision-maker would have made it. The applicants submit that no reasonable decision-maker who had due regard to:

a.    the known “key threat” and high risk rating of entanglement; and

b.    the fact that the second respondent proposed k-grid mesh technology and bundled lines as specific “Avoidance and Mitigation” measures to reduce the risk of entanglement, would not include the use of k-grid technology and bundled lines as a “particular manner”.

Delegate erred in law and the decision was contrary to law

18.     In failing to set out in the notice important aspects of the particular manner in which the delegate believed the action would be taken, the delegate erred in law, and the decision was made contrary to law, because the delegate misunderstood s 77A(1). The applicants submit that the proper construction of s 77(A) is that the particular manner which must be set out in the s 77 notice is the complete particular manner on which the delegate forms his or her belief, whether that manner was ascertained from information in the referral itself or otherwise.

(Footnotes omitted.)

The Minister’s written submissions

54    The gravamen of the First Respondent’s submissions was that the Minister had sufficiently performed his functions when forming a belief that the action would not be a controlled action if carried out in the manner he had provided for. It had been open to the Minister not to require the action to be undertaken using K-Grid technology and bundled lines:

13.    This ground concerns the way in which the delegate dealt with the potential effects of the proposed action on the southern right whale. The applicants contend that the manner provisions in the decision notice did not accurately record the delegate’s belief that was the basis for his decision that relevant provisions of Part 3 were not controlling provisions for the action, in so far as it related to effects on the southern right whale. One of those potential effects was entanglement in loose ropes or netting. The proponent proposed a mooring and netting design that aimed to minimise loose ropes and netting and, more particularly, proposed a design involving “taut moorings, bundled feed and servicing lines; and heat and resin treated knotless woven nets (k-grid technology) that eliminate the need for anti-predator nets”. The applicants’ complaint is that the decision notice did not refer to “bundled feed and servicing lines” or “K-grid technology”.

14.    However, according to the Reasons, the delegate believed that the adverse impacts on the southern right whale would be reduced below significant if the proposed action were undertaken in the particular manner set out in the decision notice. That is what the key passage in the Reasons (at [35]), where the delegate explains his belief for the purposes of s 77A, says. He makes no reference here to K-Grid technology or bundled lines.

    (Footnotes omitted.)

55    The Minister also drew a distinction as between the duty of the Minister to make a decision under s 75 of the EPBC Act and his subsequent responsibility under s 77 to publish a notice regarding the manner provisions he had formed a belief would permit the action to be undertaken so as not to be a controlled action. The Minister submitted:

15.    Further, even if a decision notice under s 77 were in some way deficient, that would not make the controlled action decision liable to be set aside, because the obligation to “set out the component decision, identifying the provision and the manner” is not a “condition regulating the exercise” of the power in s 75 to make the controlled action decision. Questions of law about the notice and reasons for decision to be provided under s 77 of the EPBC Act “arise en dehors the decision and cannot be errors in the decision itself”.

    (Footnotes omitted.)

Tassal’s written submissions

56    The Second Respondent submitted, consistently with the submissions of the Minister in those regards, that it was clear from the statutory scheme that the Minister’s decision and the terms of the notice of the particular manner required to be published were distinct. Neither s 77 nor s 77A was a source of the power to make the controlled action decision.

57    Turning to the substantive issue Tassal submitted:

2.    Whilst it is correct that the departmental brief to the delegate identified a number of avoidance and mitigation measures relevant to the endangered and listed migratory Southern Right Whale, including taut moorings, bundled feed and servicing lines and heat and resin treated knotless woven nets (k-grid technology), it does not follow that the delegate was required to form his particular manner belief by incorporation of these measures. It was open to the delegate to form his belief limited to the particular manners identified in attachment J and he did not err in failing to include each particular manner as now agitated by the applicants as relevant.

3.    The Act leaves it to the Minister to form his or her belief by reference to the particular circumstances. The applicants do not complain that it was not open to the delegate to make the component decision by reference to the particular manner requirements which he did identify. Rather they contend that this Court should infer the delegate’s belief was based on other avoidance and mitigation measures that were not set out as a particular manner in the notice. The submission must be rejected for three reasons. First, it is an open invitation to this Court to embark upon an assessment of the merits of the decision. Secondly, making a component decision that a particular provision of Part 3 is not a controlling provision turns upon a belief formed on a factual question. The applicants do not contend the delegate failed to form the requisite belief, nor do they assert that it is, or involves, a question of jurisdictional fact. As the record demonstrates, the delegate formed his belief based on the particular mitigation and avoidance measures that were identified in the departmental brief. The inference which the applicants invite this Court to draw is simply not open on those facts. Thirdly, it was open to the delegate to believe that the proposed action was not controlled by s.18 for the Southern Right Whale in accordance with the risks which the department identified (with which he agreed) and the manner of undertaking the action which he in fact required. He reasoned, consistently with s.18, that the action would be controlled due to the risk of entanglement, vessel strikes and noise and upon assessing these risks, and the particular mitigation measures which he identified, he formed the belief that the adverse impacts ‘will be reduced below significant’ if the action is undertaken in the manner that he determined. He was not obliged to identify any other particular manner of undertaking the action in order to found his belief. The Act leaves it to the Minister to undertake an evaluative assessment on the significant impact issue, which is a question of fact. Regardless, the manner specified in the decision is directed at avoiding the risk of entanglement. The descriptions of the k-grid technology nets in the referral documents and reports refer to the “robust and stiff construction” and the “physical rigidity” of the nets. The use of such nets effectively addresses the requirement to keep nets taut. Further, the bundling of feed and service lines reduces the surface area of such infrastructure. The principal risk of entanglement arises, however, if they are not kept taut. The technology and methods proposed in the referral are therefore incorporated in the requirement that nets and lines be kept taut. This is the methodology which the proponent set out in the s.68 referral. It is only if the proponent undertakes the proposed action in accordance with the referral, that the benefit conferred by the Minister’s decision pursuant to s.75 is obtained.

(Emphasis in original, footnotes omitted.)

58    In reply the Applicants submitted:

1.    On 31 July and 1 August 17 communications1 between the Department and the second respondent negotiated ‘requirements’ or ‘conditions’ to be imposed on the action. These communications are referred to by the First Respondent at [8]. However s 77A is not a vehicle for the imposition of ‘conditions’ on the proposed action, such as might be imposed when conferring a licence. Rather, a component decision under s 77A requires the contemporaneous belief of the Minister that the action ‘will be taken in a particular manner’.

…

4.    Further:

a.     The use of K-Grid technology, and the bundling of lines, is not a particular manner identified in the s 77 notice, despite being repeatedly referred to in the reasons as the manner in which the action was expected to be undertaken; and

b.     keeping feed and servicing lines ‘taut’2 is different from bundling those lines.

5.     It appears the delegate assumed that K-Grid technology and bundled lines could be taken for granted, and then sought to add further conditions.

6.     If the decision stands, notwithstanding that:

a.    The Second Respondent’s referral (as ultimately submitted) proposed the use of K-Grid technology and bundled lines; and

b.     The reasons demonstrate that the First Respondent’s decision (and GHD’s review of the referral)3 was premised on the Second Respondent using K-Grid technology and bundled lines to reduce the risk of entanglement,

the Second Respondent could lawfully undertake the action without using K-Grid technology or bundled lines. Contrary to the Second Respondent’s submissions, it is the content of the s 77 Notice, and not that of the referral, which determines whether the Second Respondent will obtain the protection from prosecution from having referred the proposed action.

7.    The First Respondent’s submissions emphasise para [35] of the reasons (describing it as the ‘key passage’5). Not only does this paragraph reflect the erroneous approach of setting conditions rather than setting out the particular manner in which the Minister believed the action would be taken, the paragraph cannot be read in isolation from the reasons which lead up to it, and which demonstrate a belief that K-Grid technology and bundling of lines will be used.

(Footnotes omitted.)

Preliminary questions:

Is s 77 of the EPBC Act a source of power?

59    Before turning to how, and with what consequences, the submissions of the parties evolved in the course of argument in respect of what had been legally required of the Minister when forming his belief for the purposes of s 75 of the EPBC Act in the facts of this case, it ultimately became common ground in these proceedings that s 77 was not, nor could be, the source of the Minister’s power to make a decision that the proposed action was not a controlled action if taken in a particular manner.

60    The way Mr Kennett SC appearing for the Minister put the proposition in his carefully considered oral submission was that the manner provisions, upon their publication in a s 77 notice, by reason of s 77A became “factums” upon which significant consequences under the EPBC Act would be engaged. Those consequences applied to any person who took an action in a way that was inconsistent with the manner(s) specified in the notice.

61    Notwithstanding its legal and practical significance, the notice was, as a matter of law, distinct from, and consequential to, the Minister’s decision. The s 77 notice could be expected to accurately reflect the Minister’s belief as to the particular manner(s) the action was to be taken. However, if by mischance the notice misstated the manner in which the Minister believed that an action, if taken in a particular manner, would not be a controlled action, such a flaw would not affect the validity of the Minister’s decision. Rather, the notice might require correction. The Court could order that it be corrected by an order in the nature of the prerogative writs – certiorari or mandamus.

62    Although neither Mr Walters QC for the Applicants nor Mr McElwaine SC for Tassal expressly adopted Mr Kennett’s precise articulation of the relationship between the Minister’s decision and the subsequent notification of any manner requirements, each accepted the substance of that analysis.

Should an order be made to correct an omission or error in a s 77 notice?

63    On that premise, Mr Walters submitted that if the Court were to conclude that rather than the Minister having merely assumed Tassal’s action would be taken in a particular manner, that the Minister’s decision, properly construed, incorporated and expressed the Minister’s belief that Tassal’s action was not a controlled action because it would be taken in that manner (relevantly in this case including the use of K-Grid technology and bundled lines) then, as an alternative to the declaration of invalidity sought, the Applicants would apply for a remedy requiring the Minister to perfect the notice.

64    Mr Kennett did not contest Mr Walters’ submission that the remedies available to the Court under s 16 of the ADJR Act would extend to making such an order (or an appropriate declaration) if the decision properly was to be so construed.

65    Mr McElwaine’s position in response in oral argument was more nuanced. In one significant particular his submissions differed from those advanced on the Minister’s part.

66    Tassal did not seek to defend the Minister’s decision on the basis that it had been open to the Minister to make a decision the effect of which would be not to require the use of the K-Grid technology.

67    Mr McElwaine submitted that on the facts in evidence before the Court, Tassal’s referral of its proposed action had openly identified to the Minister that Tassal planned to use K-Grid netting in its fish pens at Okehampton Bay. That was not something which had emerged only later when further information had been sought. From inception, the use of K-Grid netting in its fish pens had been included in Tassal’s ‘action’ as had been referred by it under s 68 of the EPBC Act to the Minister for decision.

68    Accordingly, Mr McElwaine submitted, it was inherent in the scheme provided for by the EPBC Act that Tassal would be required to use the proposed technology in order to obtain the protection from prosecution or civil penalties afforded to a person carrying out an action conformably with a decision of the Minister that the action was not a controlled action. I paraphrase Mr McElwaine’s submissions as being to the effect that the Applicants were correct that the Minister had taken for granted that Tassal would use K-Grid technology, but in error to suggest that that was merely an assumption on the Minister’s part.

69    Having regard to the scheme of the EPBC Act, Mr McElwaine submitted, the Minister’s decision was required to be made on the basis that Tassal’s ‘action’ involved the use of that technology. It was upon that premise that the Minister had, unexceptionally and without error, reasoned that that action would not be a controlled action if taken in accordance with the additional manner provisions published in the notice.

70    There was thus no foundation for the Minister’s decision to be understood as having been made on the basis that the Minister believed Tassal’s action was not a controlled action because it would be conducted in that manner. Only if the Court were to reject Tassal’s primary submissions would such a question arise.

71    However, against the contingency that Tassal’s primary submission might be rejected, Mr McElwaine did not contest the proposition that if the Minister’s decision, properly construed, incorporated and expressed the Minister’s belief that Tassal’s action was not a controlled action because it would be taken in that manner (relevantly in this case including the use of K-Grid technology and bundled lines) then, as an alternative to the declaration of invalidity sought by the Applicants, the Court could require the Minister to perfect the s 77 notice which had omitted any reference to that manner provision.

Disposition of preliminary questions

72    The Court is mindful that there was no contradictor to the submissions as advanced by Mr Kennett at [59] to [62] above. That limitation acknowledged, the Court is independently satisfied that each of those propositions are sound for the reasons counsel advanced. Whether any consequences flow from the acceptance of those propositions turns on the resolution of issues yet to be addressed.

What was the ‘action’ originally referred by Tassal?

73    My reasons at [10] to [13] above incorporate my findings concerning the documents which were included in Tassal’s referral of its proposed action. There was no submission that those documents were other than as reproduced in Ex A1 at pp 66-540.

74    Having regard to those documents, I find that Tassal’s original referral submitted to the Minister (and later published on the Department’s website to solicit comment from the public) revealed that Tassal, from the outset, had identified that the action it was proposing would involve it using K-Grid nets for its fish pens (see above at [15] to [20]).

75    Tassal’s original referral specified that it would use K-Grid nets in the context of that system protecting against the risk of entanglement of species such as shore birds and raptors as well as preventing the escape of farmed salmon.

76    I am satisfied that the documentary record establishes that that fact did not emerge only later in consequence of the Minister requesting further information from Tassal.

77    For that reason I reject Mr Walters’ submission that the ‘action’ subsequently assessed by the Minister to be not a controlled action if conducted in the particular manner the Minister specified differed in substance from the action originally proposed by Tassal. That submission was contingent upon the Court accepting (contrary to the facts the Court has found) that the ‘action’ assessed by the Minister had included significant new elements (in particular the use of K-Grid nets) which had not been identified by Tassal as included within the action it proposed undertaking in its referral documents.

The history of how Tassal’s referred action was dealt with

78    In oral argument, various analogies were drawn on by counsel to describe the duty of the Minister when a proposed action was referred to him or her for decision under s 68 of the EPBC Act. Terms such as ‘triage’ were called in aid. All counsel accepted that the statutory role of the Minister under s 75 of the EPBC Act involved the Minister determining at the threshold stage which one of four potential outcomes was to apply to a proposed action.

79    Those four potential outcomes were that: (a) an action might be determined by the Minister not to be a controlled action because the action would not have a significant impact on any of the matters of national environmental significance as defined in Part 3 Division 1 of the EPBC Act; (b) an action that otherwise would be a controlled action might be determined not to be a controlled action if undertaken in a particular manner determined by the Minister; (c) the action might be determined to require approval (or otherwise) under the assessment regime provided for by Part 9 of the EPBC Act; or (d) the Minister might inform the person proposing the action pursuant to s 74C that their proposed action was clearly unacceptable.

80    While an assessment of the impacts of a controlled action under Part 8 of the EPBC Act might take into account wider economic and social factors, consistently with the more limited role of the Minister at the threshold referral stage, the Minister was required to exclude from his consideration any beneficial impacts the action might have on those matters. Instead, the Minister was commanded by s 75(2) to consider all adverse impacts that the action will have or is likely to have on each matter of national environmental significance as defined in Part 3.

81    To ensure that the Minister will have appropriate external input into his or her decision making, s 74 provides that the Minister must publish the referral on the internet to facilitate comments being received from the public. The Minister must also inform his or her ministerial colleagues having relevant administrative responsibilities about the referral. They too are given ten days to comment. State ministers must similarly be informed if a proposed action involves their state. If the Minister concludes a relevant specified provision of the EPBC Act might be a controlling provision, he or she must also seek comment from the Australian Heritage Council.

82    However, consistently with the statutory framework operating to triage referrals so that they receive the appropriate intensity of scrutiny, and to require only those which require complex assessment to follow the path provided for in Part 8 and Part 9 of the EPBC Act, when a proposed action is referred for decision under s 68, s 74 provides only a short period of ten business days for such comments to be given.

83    Subject to s 76, the Minister must make a decision within 20 business days of a referral’s receipt: s 75(5). Pursuant to s 76, the Minister can seek further information from a proponent. Time does not run for that period.

84    It is uncontentious that in the present case the Minister exercised his power to seek further information from Tassal: see Ex A1 p 649 at 2.2.2. The Department provided the additional information to GHD as is referred to at [27] to [28] above.

85    I infer that, notwithstanding Tassal having contended that the risk of entanglement was inherently low because there had been no recorded interactions between southern right whales and marine farming activities in the eastern farming zone (see Ex A1 4A.1.16 at pp 513-515), the Minister decided it was appropriate to obtain more information from Tassal about that risk.

86    Having received the additional information from Tassal referred to at [29] above, and it having been provided to GHD, GHD finalised its report addressing inter alia, the impact of Tassal’s proposed action on that species.

87    The GHD report concluded (Ex A1 pp 653-654 at 2.4.2):

…[T]he location of the proposed action is unlikely to restrict species migratory movement. The design of the proposed action, including having taught mooring lines and heavily weighted fish nets, reduce the likelihood of entanglement to the species.

88    I am satisfied that, in referring to “the design of the proposed action”, GHD intended to acknowledge Tassal’s proposed use of K-Grid net technology. That such an implication is proper to be drawn is made clear at 2.4.3 (Ex A1 p 654), where, in the immediately following paragraph, GHD referred to the potential impact of Tassal’s proposed action on the Great White Shark in the following terms:

Mercury Passage is identified as a shark nursery; as such, it is likely that sharks will frequent the area. However, the design of the proposed action, with heavily weighted fish nets (k-grid net technology) and taught [sic] mooring lines, reduce the likelihood of entanglement, and vessel speed management and staff training reduce the likelihood of vessel strike to the species.

89    After it received GHD’s report the Department prepared a briefing for the Minister (Ex A1 p 53-54, as set out at [35] to [36] above).

90    The “particular manners set out in the Department’s proposed decision notice” were those ultimately adopted by the Minister.

91    As earlier noted the Minister later provided a statement of his reasons. How the Minister himself described Tassal’s proposal as he understood it is set out at [41] above.

The contesting positions of the parties as they ultimately evolved

The Applicants

92    The Applicants’ primary submission was that Tassal’s original referral had not included the use of K-Grid nets. Only later had Tassal informed the Minister of its plans to use K-Grid technology. The Minister had accepted in his own reasons that without use of that technology Tassal’s action would be a controlled action. The Minister had wrongly assumed that Tassal’s intention to use bundled lines and K-Grid technology could be taken for granted.

93    As oral argument developed and as the potential weakness of the factual underpinnings of that submission became apparent, the Applicants’ submissions evolved. The Applicants ultimately submitted, in common with Mr Kennett, that whatever might have been included in Tassal’s original referral to describe the action it had proposed undertaking, it had been open for the proposed action to have evolved between then and the time of the Minister’s decision. The Minister’s decision in its terms demonstrated that a change had been made to exclude that requirement.

94    The Applicants’ submissions then diverged from the Minister’s. The Applicants submitted that the Court should conclude that, in those circumstances, for the Minister to then have failed to require Tassal’s changed action to be undertaken in the manner the Minister himself had recognised to be essential for Tassal’s action not to be a controlled action, was so unreasonable in its outcome that no reasonable decision-maker could have made that decision.

95    If the decision was permitted to stand, the Applicants submitted, Tassal could lawfully undertake its action without using K-Grid technology or bundled lines. It was the content of the s 77 notice, and not that of the referral, which determined whether Tassal would obtain the protection from prosecution under the EPBC Act from having referred the proposed action.

96    In the alternative Mr Walters submitted that if the notice had in fact misstated the manner in which the Minister believed that Tassal’s action, if taken in a particular manner would not be a controlled action, the Court should require the notice to be corrected by an order in the nature of the prerogative writs – certiorari or mandamus.

The Minister

97    The Minister’s written submissions at paragraph [13] acknowledged that Tassal had proposed a mooring and netting design that aimed to minimise loose ropes and netting and, more particularly, proposed a design involving “taut moorings, bundled feed and servicing lines; and heat and resin treated knotless woven nets (k-grid technology)” that eliminated the need for anti-predator nets.

98    In oral argument Mr Kennett accepted that the submissions (summarised at [67] to [69] above) advanced by Mr McElwaine on Tassal’s behalf, that the Minister had been required to address Tassal’s proposed action in the terms it had been originally advanced, might be “tempting to embrace as a way of resolving this case” (transcript p 88 lines 8-10) but urged the Court to approach that contention with caution. Mr Kennett submitted that to accept such a proposition would limit the flexibility appropriate to apply to the assessment of a proposed action under the EPBC Act. The submission should be rejected for the reasons Heerey J had found to be compelling in Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 (Blue Wedges) at [19] to [44].

99    Adopting such a submission regarding the operation of the EPBC Act would also increase the risk that unwarranted proceedings might be commenced under the open standing provisions of the EPBC Act for an injunction against a person who had sought and obtained a determination by the Minister that their action was not a controlled action if conducted in a particular manner, based on an allegation that some aspect of their subsequent conduct had been inconsistent with a trivial element of what they had stated to be their proposed action.

100    Mr Kennett submitted that it had been open to the Minister to have formed the belief that the adverse impacts of Tassal’s proposed action on the southern right whale would be reduced to below significant if its proposed action was undertaken in the particular manner set out in the decision notice, that is without the necessity for Tassal to use the K-Grid system for its nets. A key passage in the Minister’s reasons (at [35]) conveyed that to have been the Minister’s belief:

35.    However, the Department also considered, and I agreed, that the adverse impacts of the action on southern right whales will be reduced below significant if the proposed action is undertaken in the particular manner set out in the decision notice, and summarised below:

a.    To reduce the risk of entanglement:

i.    Moorings, ropes, nets and lines must be kept taut.

ii.    Fish pen nets must be inspected at least daily; and fish pen nets, ropes and lines must be inspected at least weekly below the water line.

iii.    Prompt repairs must be made to nets, ropes and lines.

b.    In the event of entanglement, Tassal's Response Protocol For A Whale Sighting, Entanglement or Stranding, April 2017, must be implemented.

c.    To reduce the risk of vessel strike and noise disturbance:

i.    Vessels must be restricted to 5 knots for vessels within the lease area.

ii.    Marine mammal observer responsible for looking for and identifying whales must be on-board vessels whenever in use during daylight hours.

iii.    Operations must take place in daylight hours except in emergencies or when security checks are undertaken - in these circumstances and in low visibility, a navigational sonar must be used to detect whales.

iv.    Operations (vessel and noise generating activities, as guided by the South Australia Department of Planning, Transport and Infrastructure's Underwater Piling Noise Guidelines, 2012) must be shut down if a whale is observed within 1 km of vessels.

101    The ‘action’ that the Minister believed would not be a controlled action if conducted in a particular manner was not required, Mr Kennett submitted, to be exactly as stated in a proponent’s referral. As envisioned by the decision in Blue Wedges, the nature of a proponent’s proposed ‘action’ could lawfully evolve during the course of its assessment without recourse to the formal variation mechanism provided for in s 156A. That the Minister had applied that principle was demonstrated by the fact that the Minister had made no reference to K-Grid technology or bundled lines in his manner determination. There was, Mr Kennett submitted, a logical basis for the Minister to have formed a belief that K-Grid nets and bundled lines were not required to reduce to below significant the adverse impacts of Tassal’s proposed action on the southern right whale. In forming such a belief and deciding accordingly, the Minister had fulfilled the task required of him under ss 75 and 77A of the EPBC Act. The Minister’s decision could not be characterised as legally unreasonable simply because he had declined to require Tassal to use a particular type of netting.

Tassal

102    Tassal’s submissions have already been summarised.

103    Mr McElwaine submitted that it had been for Tassal to identify the action it proposed to undertake. If the Minister made a declaration that that action was not a controlled action, the EPBC Act operated such that Tassal would remain at risk of prosecution (or civil penalties) if the action it subsequently undertook was other than that which it had referred. That would be so whether or not the Minister had required any additional manner requirements to be also complied with.

104    Mr McElwaine submitted that Tassal, as required of it by the EPBC Act and the Regulations, had provided the Minister with extensive details of the action it proposed to undertake at Okehampton Bay. Tassal had identified the mooring system it would use and the kind of nets it was to attach to those moorings.

105    Mr McElwaine submitted that at no time had the action Tassal had referred to the Minister changed or been varied. Tassal’s proposal to take an action had remained throughout the assessment process as it had been originally advanced to the Minister.

106    Tassal had specified in its referral that it would use K-Grid nets. It was irrelevant that Tassal had not at that time identified their use as relevant to the risk of entanglement of whales. The further information the Minister had sought confirmed the utility of such nets for that purpose, but that circumstance had added no new integer to the action Tassal had proposed; Tassal’s responses had merely involved it providing further details about the net technology it had already told the Minister its action would involve. Bundled lines were inherent in the K-Grid netting system.

107    Therefore, Mr McElwaine submitted, the Minister’s task was to consider Tassal’s proposed action against the criteria in the EPBC Act and to determine, inter alia, whether or not the action Tassal had proposed was a controlled action. The Court should reject the submission advanced on behalf of the Minister that there had been any alterations made to Tassal’s proposal.

108    Mr McElwaine submitted that the Minister’s decision that Tassal’s proposed action was not a controlled action if undertaken in the particular manner he determined was unquestionably valid once the legal foundations for its making were properly understood. Contrary to the submissions made on behalf of both the Applicants and the Minister, the Minister had not failed to require Tassal to use K-Grid nets; the Minister had simply added manner requirements to Tassal’s original proposed action which had expressly incorporated the use of K-Grid technology to ensure that that action would have no substantial impact on migrating whales.

109    Mr Walters’ submission that if the Minister’s decision was permitted to stand Tassal could lawfully undertake the action without using K-Grid technology or bundled lines was, for the same reason, he submitted, fundamentally mistaken. The EPBC Act does not make the content of a s 77 notice standing alone the determinant of whether a person who had referred a proposed action would obtain protection from prosecution in circumstances in which the Minister had determined that a proposed action would not be a controlled action if undertaken in a particular manner. It is the content of the s 77 notice, as it intersected with the ‘action’ which had been referred that provided that protection and then if, but only if, the person subsequently undertook the ‘action’ they had proposed in that manner.

Consideration

110    The Court at [19] to [20] has stated its reasons for rejecting the factual premise implicitly relied upon by the Applicants that Tassal’s original referral had not included reference to the use of K-Grid nets. Consequentially the Applicants’ primary submission as was based on that factual premise must also be rejected. For completeness I note that no submission was made on the Applicants’ part that Tassal’s references in its documentation to its proposed use of K-Grid nets did not disclose, or sufficiently disclose, what that component of its ‘action’ was to involve. It was accepted as uncontentious by counsel that ‘K-Grid’ was a trade name for a particular kind of netting. Mr Walters did not submit that the Applicants could not readily have identified the nature of the net technology Tassal referred to by reference to that trade name.

111    Mr Walters’ fall-back position was to adopt Mr Kennett’s submission that the Minister’s decision in terms demonstrated that a change had been made to Tassal’s proposed action so as to exclude that requirement. In that context the Minister’s decision was so unreasonable that no reasonable decision-maker could have made it.

112    As the applicants can succeed on that basis only if Mr Kennett’s submissions regarding the former are sound, it is convenient to address that question first.

113    To uphold the validity of the Minister’s decision on the basis submitted for by Mr Kennett would require the Court to accept two propositions. The first proposition is that the Minister, in fact, made his decision on the basis that Tassal’s proposed action had so ‘evolved’. The second is that it was open for the Minister to proceed on the basis that the content of Tassal’s ‘action’ as determined by him not to be a controlled action if undertaken in a particular manner could, as a matter of law, differ from the proposed ‘action’ as had been originally referred to him by Tassal.

114    To establish the first of those propositions, Mr Kennett submitted that the Minister’s decision, properly construed, should be understood as revealing that the Minister had dealt with Tassal’s proposed action as having been varied in the course of his assessment of it so as to remove (or at least make optional) Tassal’s reference to its intention to use K-Grid technology for its nets.

115    To establish the second of those propositions Mr Kennett relied on the reasoning of Heerey J in Blue Wedges.

116    I am comfortably satisfied that the first of those propositions is unsound.

The Minister’s reasons properly construed

117    In oral argument, Mr Kennett relied upon what had been advanced at [14] of his and Ms Gordon’s written submissions as how the Court should construe the Minister’s reasons:

…[A]ccording to the Reasons, the delegate believed that the adverse impacts on the southern right whale would be reduced below significant if the proposed action were undertaken in the particular manner set out in the decision notice. That is what the key passage in the Reasons (at [35]), where the delegate explains his belief for the purposes of s 77A, says. He makes no reference here to K-Grid technology or bundled lines.

118    However, the Minister’s omission to mention those matters is equally explicable on a different basis; that the Minister had considered manner provisions did not need to be imposed in order to require Tassal to use the technology which, from the outset, had been a component of its proposed action.

119    That the Minister’s reasons properly construed should be so understood is, in the Court’s opinion, confirmed by two textual and contextual circumstances.

120    The first of those circumstances is that in his reasons the Minister preceded his discussion of what he had to decide by setting out his understanding of Tassal’s proposal as had been before him. The Minister’s three paragraph summary of Tassal’s proposed action is set out at [41] above. In those three paragraphs, the Minister refers to Tassal’s ‘proposed action’ as including “growing up to 800 000 smolt … to harvestable size”. It refers to Tassal using 28 pens covering 86 ha of Tassal’s 100 ha lease. It refers to the ‘proposed action’ including a permanently moored mobile water barge located on the lease. It also includes the unambiguous statement that “[p]en nets will be made using ‘k-grid’ mesh technology: a high tenacity knotless resin-treated woven net. No antipredator nets will be used.”

121    No manner provisions were required of the Minister to ensure that Tassal would not exceed the number of smolt it had proposed as part of its action. No manner provisions were required to limit its number of pens to 28. That is because each of those matters were inherent components of the ‘action’ Tassal had advised the Minister it was proposing to take; the ‘action’ which the Minister ultimately concluded was not a controlled action if conducted in a particular manner.

122    In my opinion, the same logic applies with equal force in respect of that component of Tassal’s proposed action as referred to at [2] of the Minister’s summary that its pen nets would be made using K-Grid technology.

123    The Minister’s reasons, properly construed, having regard to those three introductory paragraphs, reveal that the Minister did not purport to require Tassal to use K-Grid technology. Instead, those reasons reveal that the Minister proceeded on the basis of his understanding that the use of K-Grid nets was an inherent part of Tassal’s proposed action. The omission at [35] of the Minister’s reasons (the absence of any reference to that technology when considering appropriate manner provisions) assumes misleading significance if that paragraph is read in isolation from its context as part of the Minister’s reasons understood as a whole. I reject such a reading.

124    There is a further reason for the Court not to accept a proposition that, properly understood, the Minister’s reasons demonstrate that he had dealt with Tassal’s proposed action as having been varied in the course of his assessment of it so as to remove (or at least make optional) the use of K-Grid netting.

125    There is simply no reference, explicitly or implicitly, to any such proposition in the Minister’s reasons. That is of consequence because there was nothing in the materials that were before the Minister to suggest that Tassal had requested that its proposed action be varied. There also is nothing before this Court to suggest that Tassal acquiesced to the Minister proceeding in that regard. From the bar table, Mr McElwaine on Tassal’s behalf denied Tassal had done so. Neither Mr Kennett nor Mr Walters sought to put that in issue. That Tassal did not do so is consistent with all of the evidentiary material before the Court. I accept it to be the fact.

126    The Court need not adopt the Applicants’ contention that a decision by the Minister which failed to require the use of K-Grid technology would be legally unreasonable in order to accept that the advice to the Minister from the Department was strongly premised on Tassal using K-Grid technology, inter alia, to avoid entanglement of whales. No party contests that proposition.

127    To that it may be added that the use of K-Grid technology had been expressly referred to by Tassal in its referral documents to explain why its referred action would not risk the entanglement of raptors, shore-birds and other birds. Its use was thus not only relevant to the southern right whale.

128    In that context, for the Minister to have unilaterally decided that the use of K-Grid nets was not to be required, is so improbable a proposition as to strongly suggest that it should be rejected. The Court cannot accept Mr Kennett’s invitation to construe the Minister’s reasons as revealing that, without any reference to his having decided to do so and without any reasoning in support, he made such a decision. As noted there is an equally available alternative reading that would more plausibly explain the omission of the Minister to refer to K-Grid nets at [35]. The construction urged by Mr Kennett for the Minister’s reasons is improbable rather than inescapable. I reject it.

Could Tassal’s ‘action’ be varied?

129    My finding that Tassal’s proposed action neither evolved during the course of its assessment nor was changed by the Minister in the course of his making his determination has the result that it may be strictly unnecessary for the Court to decide the question of whether, as a matter of law, it would have been open to the Minister to have proceeded on that basis.

130    However, it is within the responsibility of a judge at first instance to address alternatives as against the prospect of an appeal. On the assumption that I might be in error in holding that Tassal’s proposed action did not so evolve, I should also address the second of the propositions necessarily relied upon by Mr Kennett.

131    In my opinion, the scheme of the EPBC Act includes strong indicia to suggest that what was advanced by Tassal as the ‘action’ it had proposed to undertake could not have been altered at the referral stage of the statutory process (or to have ‘evolved’ as submitted to be possible by Mr Kennett) without recourse being had to the provisions of s 156A. Section 156A provides a formal mechanism for a person who has made a proposal to take an action to request it be varied.

132    The expression “actions” is a defined term in the EPBC Act. It has the meaning given by Subdivision A of Division 1 of Part 23. Subject to certain exceptions which are not presently relevant, s 523 defines “actions’ as follows:

(a)    a project; and

(b)    a development; and

(c)    an undertaking; and

(d)    an activity or series of activities; and

(e)    an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).

Mr Kennett accepts that the term must be construed consistently across the EPBC Act.

133    The sections of the EPBC Act that refer to an ‘action’ are too extensive for the Court to attempt to replicate in these reasons, however, the core elements of the statutory scheme as relevant to a these proceedings are as follows:

134    Section 68 of the EPBC Act provides thus:

68    Referral by person proposing to take action

(1)    A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(2)    A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(3)    In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.

(4)    If the person states that the person thinks the action is a controlled action, the person must identify in the statement each provision that the person thinks is a controlling provision.

(5)    Subsections (1) and (2) do not apply in relation to a person proposing to take an action if the person has been informed by the Minister under section 73 that the proposal has been referred to the Minister.

(6)    This section is affected by section 68A.

(The provisions of s 68A are not of relevance to this analysis.)

135    Section 72 provides for the form and content of any proposal to take an ‘action’ thus:

72    Form and content of referrals

(1)    A referral of a proposal to take an action must be made in a way prescribed by the regulations.

(2)    A referral of a proposal to take an action must include the information prescribed by the regulations.

(3)    A referral of a proposal to take an action may include alternative proposals relating to any of the following:

(a)    the location where the action is to be taken;

(b)    the time frames within which the action is to be taken;

(c)    the activities that are to be carried out in taking the action.

136    The Regulations, made pursuant to s 72(2), require a proponent to give extensive details to the Minister about any proposal to take an ‘action’.

137    Section 74 then requires the Minister to seek comment from the public and from other specified persons about any proposal to take an ‘action’:

74    Inviting provision of information on referred proposal

Inviting other Commonwealth Ministers to provide information

(1)    As soon as practicable after receiving a referral of a proposal to take an action, the Minister (the Environment Minister) must:

(a)    inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the proposal; and

(b)    invite each other Minister informed to give the Environment Minister within 10 business days information that relates to the proposed action and is relevant to deciding whether or not the proposed action is a controlled action.

Inviting comments from the Australian Heritage Council

(1A)    If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 15B or 15C could be a controlling provision for the proposed action because of National Heritage values of a National Heritage place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.

Note:    Sections 15B and 15C protect the National Heritage values of National Heritage places.

(1B)    If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 23, 24A, 24B, 24C, 26, 27A, 27B, 27C or 28 could be a controlling provision for the proposed action because of heritage values of a place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.

Note:    Sections 23, 24A, 24B, 24C, 26, 27A, 27B, 27C and 28 protect the environment, which includes the heritage values of places. See the definition of environment in section 528.

Inviting comments from appropriate State or Territory Minister

(2)    As soon as practicable after receiving, from the person proposing to take an action or from a Commonwealth agency, a referral of a proposal to take an action in a State or self‑governing Territory, the Environment Minister must, if he or she thinks the action may have an impact on a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance):

(a)    inform the appropriate Minister of the State or Territory; and

(b)    invite that Minister to give the Environment Minister within 10 business days:

(i)    comments on whether the proposed action is a controlled action; and

(ii)    information relevant to deciding which approach would be appropriate to assess the relevant impacts of the action (including if the action could be assessed under a bilateral agreement).

Note:    Subsection (2) also applies in relation to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

Inviting public comment

(3)    As soon as practicable after receiving a referral of a proposal to take an action, the Environment Minister must cause to be published on the internet:

(a)    the referral; and

(b)    an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the action is a controlled action.

Note:    If the action is also the subject of a permit application under section 200, 215, 237 or 257 and the application is made at the same time as the referral, the referral and invitation for comments that must be published under this subsection may be published together with the application and invitation for comments that must be published under section 200, 215, 237 or 257.

Non‑disclosure of commercial‑in‑confidence information

(3A)    The Environment Minister may refuse to cause to be published on the internet, under subsection (3), so much of the information included in a referral as the Minister is satisfied is commercial‑in‑confidence.

(3B)    The Environment Minister must not be satisfied that particular information included in a referral is commercial‑in‑confidence unless a person demonstrates to the Minister that:

(a)    release of the information would cause competitive detriment to the person; and

(b)    the information is not in the public domain; and

(c)    the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and

(d)    the information is not readily discoverable.

138    Section 75 then provides that the Minister is to determine whether the proposed ‘action’ requires approval thus:

75    Does the proposed action need approval?

Is the action a controlled action?

(1)    The Minister must decide:

(a)    whether the action that is the subject of a proposal referred to the Minister is a controlled action; and

(b)    which provisions of Part 3 (if any) are controlling provisions for the action.

Note:    The Minister may revoke a decision made under subsection (1) about an action and substitute a new decision. See section 78.

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

Minister must consider public comment

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

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

(b)    within the period specified in the invitation.

Considerations in decision

(2)    If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:

(a)    the Minister must consider all adverse impacts (if any) the action:

(i)    has or will have; or

(ii)    is likely to have;

on the matter protected by each provision of Part 3; and

(b)    must not consider any beneficial impacts the action:

(i)    has or will have; or

(ii)    is likely to have;

on the matter protected by each provision of Part 3.

Note:    Impact is defined in section 527E.

(2A)    For the purposes of subsection (2), if the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3), 26(1) or 27A(1), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:

(a)    has or will have; or

(b)    is likely to have;

on the matter.

(2AA)    For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:

(a)    has or will have; or

(b)    is likely to have;

on the matter.

(2B)    Without otherwise limiting any adverse impacts that the Minister must consider under paragraph (2)(a), the Minister must not consider any adverse impacts of:

(a)    any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply; or

(b)    any forestry operations in an RFA region that may, under Division 4 of Part 4, be undertaken without approval under Part 9.

Designating a proponent of the action

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

Consent to designation

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

(a)    the person agrees to being designated; and

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

Timing of decision and designation

(5)    The Minister must make the decisions under subsection (1) and, if applicable, the designation under subsection (3), within 20 business days after the Minister receives the referral of the proposal to take the action.

Note:    If the Minister decides, under subsection 75(1), that the action is a controlled action, the Minister must, unless the Minister has requested more information under subsection 76(3) or section 89, decide on the approach to be used for assessment of the relevant impacts of the action on the same day as the Minister makes the decision under subsection 75(1)—see subsection 88(2).

Time does not run while further information being sought

(6)    If the Minister has requested more information under subsection 76(1) or (2) for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:

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

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

Running of time may be suspended by agreement

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

139    Section 77 provides as follows:

77     Notice and reasons for decision

Giving notice

(1)    Within 10 business days after deciding whether an action that is the subject of a proposal referred to the Minister is a controlled action or not, the Minister must:

(a)    give written notice of the decision to:

(i)    the person proposing to take the action; and

(ii)    if the Minister has designated as proponent of the action a person who does not propose to take the action—that person; and

(iii)    if the Minister decided that the action is a controlled action because of Division 1 of Part 3 (which deals with matters of national environmental significance)—the appropriate Minister of each State or self‑governing Territory in which the action is to be taken; and

(b)    publish notice of the decision in accordance with the regulations.

Note 1:    Section 156 sets out rules about time limits.

Note 2:    Subparagraph (1)(a)(iii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

Notice must identify any applicable controlling provisions

(2)    If the decision is that the action is a controlled action, the notice must identify each of the controlling provisions.

Reasons for decision

(4)    The Minister must give reasons for the decision to a person who:

(a)    has been given the notice; and

(b)    within 28 days of being given the notice, has requested the Minister to provide reasons.

The Minister must do so as soon as practicable, and in any case within 28 days of receiving the request.

140    Section 77A provides what the Minister is to do if he or she has made a decision that an action is not a controlled action because the Minister believes it will be taken in a particular manner:

77A    Action to be taken in a particular manner

(1)    If, in deciding whether the action is a controlled action or not, the Minister has made a decision (the component decision) that a particular provision of Part 3 is not a controlling provision for the action because the Minister believes it will be taken in a particular manner, the notice, to be provided under section 77, must set out the component decision, identifying the provision and the manner.

Note:    The Minister may decide that a provision of Part 3 is not a controlling provision for an action because he or she believes that the action will be taken in a manner that will ensure the action will not have (and is not likely to have) an adverse impact on the matter protected by the provision.

(1A)    For the purposes of subsection (1), it does not matter whether or not the Minister believes that the action will be taken in accordance with:

(a)    an accredited management arrangement or an accredited authorisation process for the purposes of a declaration under section 33; or

(b)    a bioregional plan to which a declaration made under section 37A relates; or

(c)    a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of a bilateral agreement.

(2)    A person must not take an action, that is the subject of a notice that includes a particular manner under subsection (1), in a way that is inconsistent with the manner specified in the notice.

Civil penalty:

(a)    for an individual—1,000 penalty units, or such lower amount as is prescribed by the regulations;

(b)    for a body corporate—10,000 penalty units, or such lower amount as is prescribed by the regulations.

141    The EPBC Act provides a specific mechanism to permit limited changes to be made to a proposal to take an action. Section 156A permits a person to request to vary their proposal to take an ‘action’ thus:

156A    Request to vary proposal to take an action

(1)    If:

(a)    a proposal (the original proposal) by a person to take an action has been referred to the Minister under Division 1 of Part 7; and

(b)    after the referral is made, the person wishes to change the original proposal;

the person may, subject to subsection (2), request the Minister to accept a variation (a varied proposal) of the original proposal.

(2)    Subsection (1) does not apply if:

(a)    the Minister has made a decision under section 74A to not accept the referral of the original proposal; or

(b)    the Minister has made a decision under section 75 that the proposed action is not a controlled action; or

(c)    a particular manner for taking the proposed action is identified under subsection 77A(1) in the notice given under section 77 in relation to the action; or

(d)    the Minister has made a decision under section 133 approving or refusing to approve the taking of the proposed action; or

(e)    the referral of the original proposal has been withdrawn under section 170C.

(3)    A request under subsection (1) must:

(a)    be made in a way prescribed by the regulations; and

(b)    include the information prescribed by the regulations.

(4)    If a request is made under subsection (1), any provisions of this Chapter that would, apart from this subsection, have applied in relation to the original proposal cease to apply to that proposal.

Note:    Provisions that have ceased to apply in relation to the original proposal under subsection (4) will start to apply to that proposal, or to the varied proposal, after the Minister has decided whether or not to accept the varied proposal. See section 156D.

142    Subject to whether the decision in Blue Wedges might require a different outcome, the basic structure of the EPBC Act as it applies to a ‘triage’ determination made by the Minister under s 75 would appear to operate such that a person must identify the scope of whatever they might propose doing (their proposal to take an ‘action’) if it is or might be a controlled action.

143    That proposed action must then be exposed for public and other comment. Having had regard to such comment the Minister’s task is to determine whether or not the proposal to take an ‘action’ referred under s 68 and notified as required under s 74 of the EPBC Act requires approval.

144    Having regard to the structure of the EPBC Act and the specific terms of s 156A there appears to be no foundation in the EPBC Act that would permit the informal variation of a proposed ‘action’ during the referral stage of the statutory process.

145    Tassal did not ask for any changes to be made to its referred ‘action’. Therefore what Mr Kennett submitted to be possible is that the Minister might lawfully have exercised a unilateral power of dispensation. No basis for that proposition was advanced. If possible, the supposed power of dispensation in the facts of this case necessarily must have extended to an element of the ‘action’ that had been expressly identified by its proponent as relevant to why its proposed ‘action’ was not subject to a controlling provision of the EPBC Act (in this case in relation to the risk of entanglement of those birds protected as migratory species and threatened species and communities).

146    That such a proposition ought be rejected might be thought to be reinforced by the terms of s 74AA which provide that it is an offence to take an ‘action’ that has been referred to the Minister before a decision has been made in relation to whether or not that ‘action’ is a controlled action.

147    An unarticulated power of dispensation might also create difficulties in the application of the offence provisions contained in Part 3 Division 1 of the EPBC Act. There are a range of such provisions. They are not all identical but, in so far as is relevant to this discussion, they all are expressed in similar terms. As an example, s 20A provides as follows:

20A    Offences relating to listed migratory species

(1)    A person commits an offence if:

(a)    the person takes an action; and

(b)    the action results or will result in a significant impact on a species; and

(c)    the species is a listed migratory species.

…

(4)    Subsections (1) and (2) do not apply to an action if:

…

(c)    there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; …

148    Such offence provisions, as Mr McElwaine identified, operate upon the intersection of two integers; the ‘action’ and the ‘manner specified in the notice’. Their drafting assumes that whatever an ‘action’ is can be identified. That presents no difficulty if the ‘action’ referred to in s 20A must be understood to be that which was originally referred to the Minister for his determination or as formally altered pursuant to a request made under s 156A. However, if what constitutes an ‘action’ is capable of being informally exempted from that which was put forward in a referral, it might be difficult, if not impossible, for the prosecution to prove, to the required standard, what the ‘action’ that the Minister had determined to not be a controlled action was. The potential for such difficulties to arise in practice might be thought to be heightened because there is no general requirement for reasons to be provided (those supplied in this matter were provided after legal proceedings had been undertaken seeking their provision under the ADJR Act in respect of a decision taken by the Minister under s 75).

149    I am unpersuaded by Mr Kennett’s submission that a conclusion that an ‘action’ cannot evolve during the referral stages of its consideration under the EPBC Act would increase the risk that unwarranted proceedings might be commenced under the open standing provisions (s 523) of the EPBC Act.

150    Any such proceeding necessarily will be brought after the point of time of a decision under s 75. There is no capacity for retrospectivity. Mr Kennett’s submission assumes that the Minister at the time of making a decision routinely will have dealt with referrals of proposals to take actions by excluding those aspects of an action he or she assesses to be trivial as originally proposed from the action he or she might determine not to be a controlled action. There is no basis advanced for or reasons supporting the Court making such an assumption. There appears to be no statutory foundation to require or permit the Minister to cull out for exemption certain aspects of an ‘action’ the subject of a referral which the Minister has before him or her for decision, particularly, as is relevant to these proceedings, one that the proponent had itself identified as a reason why its proposed action was not a controlled action.

151    Moreover, I am satisfied that Mr McElwaine’s riposte in oral argument to Mr Kennett’s submission that such a construction of the EPBC Act would encourage litigation over trivial matters provides an adequate answer to such concerns. Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 establishes, in an analogous context, that it would require substantial non-compliance, not merely technical or impractical non-compliance with the manner requirements to be shown before a court would be persuaded to grant such an injunction.

Blue Wedges to be distinguished

152    In my opinion, Blue Wedges is relevantly distinguishable. Heerey J’s reasoning does not touch on whether the Minister might possess a unilateral power to change the nature of an action that has been referred to him for consideration. It therefore does not engage with the specific facts of this case.

153    Blue Wedges may also be distinguished because it concerned an entirely different stage of an assessment. As the Minister’s written submissions at paragraph [2] recognised, the decision making process under the EPBC Act in the present case stopped at the second step of what would otherwise have been a much longer and more intensive assessment process. It stopped because the Minster had determined at the triage stage that the action proposed by Tassal was not a controlled action if conducted in the particular manner he identified.

154    In the present case there was thus no need for any assessment of the action’s relevant impacts by one of the specified methods available to be chosen by the Minister under Part 8 of the EPBC Act, nor was there any requirement, following such an assessment for a decision to be made by the Minister regarding the action, and what conditions, if any, to attach to any approval.

155    The decision challenged in Blue Wedges was made only after the proposal had been subjected to some five years of evaluation under Parts 8 and 9 of the EPBC Act. The relevant chronology, from initial referral (15 February 2002) to approval decision (20 December 2007), is set out at [4] of that decision. Notwithstanding Heerey J’s obiter remarks suggesting his Honour may have considered there to be some capacity for an action to ‘evolve’ during the referral stages, the ratio of Blue Wedges does not compel that conclusion. As Heerey J noted at [22], the referral mechanism operates as a kind of triage system. The circumstances of the present case are entirely different to those his Honour was deciding. It is therefore unnecessary for me to choose between whether in comity I ought follow that decision or to hold it to be plainly wrong.

If in error

156    Having regard to the considerations I have discussed above, if I were to be in error as to the construction of the Minister’s reasons, the Minister must have misconceived his legal duty by purporting unilaterally to exclude the integer of Tassal’s proposed ‘action’ that it use K-Grid technology from the ‘action’ he determined not to be a controlled ‘action’ in making his decision under s 75 of the EPBC Act. Such an error is reviewable under one or more of the provisions of s 5(1)(d), (e) and (f) of the ADJR Act.

157    On that assumption, I would have published reasons and given the parties an opportunity to make submissions as to whether Ground 1 of the Applicants’ application for review, having regard to its particulars, had been established and, if so, what if any orders should be made under s 16 of the ADJR Act.

Conclusion

158    I am satisfied that Ground 1 of the Applicants’ application for review must be rejected for reasons which may be summarised as follows:

(1)    Tassal’s proposal to take an ‘action’ from the outset had incorporated the use of K-Grid nets;

(2)    Tassal never sought a variation of the ‘action’ it had referred to the Minister; and

(3)    properly construed, the Minister’s reasons reveal that the Minister did not, nor did he purport to, unilaterally vary the ‘action’ Tassal hard referred and which he determined to be not a controlled action if undertaken in the manner he specified.

There is therefore no need for submissions addressing the potential issues referred to at [157]. Those issues do not arise.

159    Whether the s 77 notice might require amendment (as discussed at [59] to [72] above) also does not arise.

160    I would dismiss Ground 1 of the Applicants’ application for review.

Ground 2

161    This ground concerns the Applicants’ contention that the Minister erred in law in failing to consider, as required by s 75(2) of the EPBC Act, all adverse impacts that Tassal’s proposed action ‘has or will have’ on a matter of national environmental significance protected by Part 3 of the EPBC Act, namely the Darlington Probation Station.

162    The relevant background can be found at [35] (the Department’s reference to the Applicants’ comment and the Department’s advice with respect to that comment); at [39] (the Minister’s assent to the Department’s advice that National Heritage was not a controlling provision of the EPBC Act in respect of Tassal’s proposed action); and at [45] (the Minister’s statement of reasons as relevant to the Darlington Probation Station) of these reasons.

163    The text of Ground 2 is at [47] of these reasons.

164    The Darlington Probation Station is located on Maria Island to the east of the Tasmanian mainland. It appears uncontentious that Okehampton Bay and more particularly Tassal’s lease site is within line of sight of Darlington. There are various statements in the documents before the Court that refer to the distance between it and the location of Tassal’s lease. The Department’s advice to the Minister (set out at [35] above) stated that distance to be approximately 9.5 km. The Geoscene Report commissioned on behalf of the Applicants and submitted as an appendix to their comment refers to the distance as ‘about 8 km’ (Ex A1 p 1595). The Minister in his reasons at [94] refers to the site as being “over 7km distant [sic]”. The Applicants’ written submissions at [19] state that “Darlington is approximately 7 km from the proposed action and the proposed action is likely to be visible from Darlington”.

165    It is unnecessary for the Court to make a finding as to which, if any, of those estimates is strictly accurate. For the purposes of these reasons, the Court will proceed on the basis that Tassal’s lease site is no less than 7 km from Darlington. I accept, subject to factors such as weather conditions, that some aspects of Tassal’s proposed action will be capable of being seen from Darlington notwithstanding that distance.

166    In their written submissions the Applicants contend:

20.    Darlington was included in the National Heritage List in May 2007 (see Gazette No S141 Paginated Record of Decision Making p2221, particularly p2231-2232). It was listed because, among other things, it has outstanding heritage value to the nation because of its importance in the course, or pattern, of Australia's natural or cultural history. The stated “values” include:

a.    with[in] a natural environment setting that has few competing elements, the precinct possesses a rare sense of place; and

b.    its isolated location.

21.    The proposed action involves 2 permanently moored barges (barges) (reasons [3]; Paginated Record of Decision Making p568). The feed barge is approximately 25m in length and sits high above the waterline (Paginated Record of Decision Making p109). The water barge is 33.35m in length and 18 m wide. It will have a reverse osmosis plant which is approximately 3.2m high (see reasons [3]; Paginated Record of Decision Making 110-111). The barges will be more visible than the fish pens because the barges (and the equipment on the barges) sit higher above the waterline, and have a larger visible mass, than the pens (Paginated Record of Decision Making p568).

22.    The reasons [94] state that it is likely that the fish farm will be visible from the Darlington site. The reasons [98] also state:

While the farm is likely to be visible, the presence of pens low to the water over 7 km distant from the site is unlikely to detract from the meaning derived from the buildings and structures, and what they represent in Australia's history

23.    Paragraphs 94, 98 and 99 of the reasons make clear that:

a.    the only matter considered by the delegate was the potential visual impact of the fish pens on Darlington;

b.    the delegate did not consider (1) the potential visual impacts of the barges or lights on Darlington or (2) the potential noise impacts on Darlington.

In their reply, the Applicants made further submissions as follows:

13.    Section 75(2)(a) requires the First Respondent to consider all adverse impacts (if any) the action has or will have or is likely to have on the matters protected by each provision of Part 3: in this case, the National Heritage values of Darlington.

14.    A Court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky, [71]. The interpretation propounded in the First Respondent’s submissions para [17] is unsustainable because that interpretation:

a.    ignores the word ‘all’ in s 75(2)(a); and

b.    fails to give meaning to every word of s 75(2)(a).

15.    Paras [94] and [98] of the reasons:

a.    recognise that the fish farm will be or is likely to be visible from Darlington; and

b.    make clear that the only impact considered was the visual impact of the fish farm pens.

16.    The threat from visual, noise, light or loss of amenity impacts of the fish farm on Darlington was raised in the comments submitted by the Applicants9. A report prepared by Geoscene International which was also included in the comments submitted by the Applicants raised concerns about visual and noise impacts from fish farm operations and barges.

17.    The First Respondent failed to consider whether the two barges and noise and light from the fish farm would have any adverse impact on the National Heritage values of Darlington.

167    The particulars of the grounds upon which the Applicants challenge the Minister’s determination on the basis that he failed to consider all adverse impacts on a matter protected by Part 3 of the EPBC Act are:

a.    The First Respondent failed to consider the potential adverse impacts which the two (2) permanently moored barges, and any equipment on those barges, will have on the National Heritage values of the Darlington Probation Station.

b.    The First Respondent failed to consider the potential adverse impacts which noise from the action will have on the National Heritage values of the Darlington Probation Station.

c.    The First Respondent failed to consider the potential adverse impacts which light from the action will have on the National Heritage values of the Darlington Probation Station.

168    I address each aspect in turn.

Visual impact

169    It is well established that the reasons of administrative decision-makers must be read without an eye to keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. When that approach is taken, Mr Walters’ attack on the Minister’s reasoning cannot be sustained. He is correct to submit that in some instances a decision-maker’s failure to refer to a particular circumstance will entitle a reviewing court to infer that that matter was not taken into consideration. However a fair reading of the Minister’s reasons, including those that preceded the paragraph the Applicants rely upon, make it tolerably clear that the Minister was well aware that Tassal’s proposed action included the use of barges and would involve vessel movements, not merely stationary fish pens. I do not accept it is open to the Court to infer that the Minister did not have regard to those features of Tassal’s proposed action as would have been part of its visual impact contrary to his duty pursuant to s 75(2) of the EPBC Act.

170    The threshold task of evaluating whether Tassal’s proposed action might have a significant impact on a matter of national heritage by reason of its visual impact was a matter for the Minister. He concluded it would not. The Court cannot review the merits of his decision; its role is supervisory and cannot be invoked in the absence of reviewable legal error.

171    Mr Walters’ written submissions in reply refer to what the Applicants had put before the Minister by way of comment. I am satisfied that nothing in that comment, or the Minister’s treatment of that comment, rises to the level that would entitle the Court to conclude that the Minister fell into reviewable error.

172    Contrary to what might be thought to be implied by the Applicants’ written reply submissions, the Geoscene Report which the Applicants included as part of their comment did not assert that the national heritage values of Darlington would be significantly detracted from by the visual impacts of Tassal’s proposed action. Geoscene’s analysis (Ex A1 p 1595) was as follows:

1.    Visual Impacts: At about 8 km from Darlington, the effects of the fish cages would likely be low, however, the impacts from the Ferry Route at 3 km could be more significant, as discussed earlier (refer to Figures 11 -13). The main areas where visual impact could potentially be significant regard the following:

a.    Adverse visual impact on Maria Island resulting from pollution washed up on shore, and/or adverse night/lighting in the bay. In this regard, it is understood that this has been a significant problem in relation to finfish operations at Macquarie Harbour and elsewhere in Tasmania, as is illustrated in images provided (refer to Figure 10);

b.    Adverse visual impact from the Ferry Route, affecting Maria Island visitors’ experience;

c.    Adverse visual impact from any critical mainland viewpoints, such as the Lookout south of Triabunna;

d.    The extent/number of pens, barges and vessels in the area be detrimental to the isolation and serenity values of Darlington and Maria Island;

e.    None of the existing environmental impact assessments have examined these issues carefully enough given the World Heritage and National Heritage values at stake. The “Commercial-in-Confidence” rule is keeping relevant information in this regard from being assessed and would appear to be unreasonable given that these types of operations are well established in Tasmania and any commercial competitors are likely to have a very good idea of the type, size and frequency of operational vessels for an development of this size.

173    In respect of the matters at (a), (b) and (c) which the Geoscene Report points to as the ‘main areas’ where the visual impact of the proposed action would be potentially of significance, all of those related to visual impacts apparent from places other than Darlington, and closer to Tassal’s leases. As such, those potential impacts were not impacts the Minister was entitled to have regard to. They were not impacts upon the protected values of the Darlington Probation Station.

174    Only (d) was relevant – the issue of whether the extent or number of pens, barges and vessels might be detrimental to the isolation and serenity values of Darlington. In that regard, Geoscene frankly conceded that, in terms of visual impacts, “at about 8 km from Darlington, the effects of the fish cages would likely be low”. There is nothing in (d) to suggest that Geoscene was qualifying that statement or to suggest that conclusion would not equally apply in respect of the other visual impacts mentioned by Geoscene at (d).

175    In my view it was open to the Minister to approach the matter from the same perspective; that at that distance, the visual impact of Tassal’s operations, including vessel movements and what might be seen of its fixed and mobile barges, was likely to be low.

176    I am satisfied that nothing submitted on the part of the Applicants establishes that the Minister’s decision that Tassal’s proposal to take an action was, with respect to its potential visual impact having regard to its distance from Darlington, not a controlled action within s 15B and 15C of the EPBC Act was made otherwise than on a rational basis and according to law.

Noise

177    As is the case with visual impacts, the Geoscene Report does no more than to raise the bare possibility that noise impacts might be relevant – but in terms conceding the unlikelihood that they would. Thus at A1 p 1596 the Geoscene Report refers to noise as “[a] possible low impact factor given the distance”. It may be accepted that that statement is later qualified by its author’s reference to not knowing more about the type and number of proposed vessels in the water and the frequency of their operation, but there is nothing at all in the materials before the Court that would suggest that the Minister fell into legal error by ignoring a material consideration: that Tassal’s operations would be audible at that distance at a level which would amount an adverse impact.

178    I thus reach the same conclusion with respect to the Applicants’ submissions concerning noise impacts as I have reached at [176] regarding visual impact.

Light

179    It is unnecessary to consider this particular of Ground 2 in any detail. In oral argument the Court drew Mr Walters’ attention to the manner requirement determined by the Minister that vessel operations must take place only in daylight hours save in emergencies. Mr Walters did not further press the submission.

180    I would dismiss Ground 2 of the Applicants’ application for review.

Ground 3

181    Ground 3 relates to the circumstance set out at [33] above that neither the further information supplied by Tassal nor the GHD report was, prior to the Minister’s decision, published on the Department’s website or otherwise supplied to those members of the public who had responded to the opportunity to comment on Tassal’s proposal in order to permit them to make further comment.

182    The Applicants’ submissions raise issues of procedural fairness on two premises: (a) that the obligation extended generally to the public at large or to a subset of those members of the public who had already provided comment; and (b) that there was a specific duty, in respect of the First and Second Applicants as persons with a special interest arising out of their direct connection with land nearby in Triabunna and Spring Bay whose interests were likely to be detrimentally affected by Tassal’s proposed action arising as an aspect of procedural fairness to reveal that material, and to give them an opportunity to be heard in relation to it.

183    The Applicants’ written submissions were as follows:

24.    The applicants contend that they were denied an opportunity to comment on documents concerning the proposed action listed below which were available to the Minister on 1 August 2017 as part of the briefing prepared by the Department (reasons [19]) (undisclosed material) which identified significant further impacts of the proposed action:

a.    the additional information which the second respondent provided to the Department on 5, 6, 11 and 25 July 2017 (reasons [19 b]);

b.    GHD’s report (reasons [19 e]; Paginated Record of Decision Making pp 643-792); and

c.    the comments and agreement from the second respondent (reasons [19 g]; Paginated Record of Decision Making pp796-802).

25.    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; Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities (2012) 291 ALR 52, [2012] FCA 226, [83]

26.    In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] the plurality of the High Court held that “the common law” usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.

27.    The applicants submit that the statutory duty in s 75 is conditioned on the observance of the principles of natural justice particularly as the duties imposed on the Minister in Ch 4 Pt 7 include:

a.    causing to be published on the internet the referral and "an invitation for anyone to give the Minister comments within 10 business days" on whether the action is a controlled action: s 74(3);

b.    considering the comments received: s 75(1A); and

c.    publishing notice of the decision.

28.    As Ch 4 Pt 7 does not specify, or indicate, what the rules of natural justice require, the Court must determine the practical requirements of fairness. The applicants contend that the rules of natural justice required that the Department publish the undisclosed material on the Department’s website so that persons such as the applicants who wished to make comment could do so having regard to all relevant material rather than just the referral because:

a.    the statutory scheme provides wide standing to community groups such as those involved in conservation;

b.    the statutory scheme contemplates input (and, by implication, informed input) from the community on decisions such as this;

c.    the statutory scheme does not provide the applicants with a right to have the decision reviewed on the merits;

d.    the Department knew that the applicants considered that the proposed action was a controlled action for the reasons set out in their submission;

e.    publishing the undisclosed material on the Department’s website in the same manner that the referral was published was an easy and practical option; and

f.    the undisclosed material, when read together with the referral, presented a significantly different project from that referred given it demonstrated, for example:

(1)    the projected output of dissolved waste (effluent) from the salmon farm would extend from 0.5 - 2 kms from the lease boundary (as opposed to “500 m from the proposed action” and/or “no adverse impacts beyond 35m from lease boundary” as asserted by the second respondent in the referral at p. 528).

(2)    the action would lead to a long term decrease in the size of the south east population of the southern right whale (p. 804) (when the second respondent had asserted “no significant impacts” to the SRW (p. 512) or “the potential for significant impact criteria to be met is low” (p. 529);

(3)    specific proposals to mitigate the impact of the project upon whales by using particular technology.

184    The Minister’s written submissions were as follows:

19.    There was no requirement, under the public comment provisions of the EPBC Act or as a matter of procedural fairness, for the Department to publish the additional information or to invite public comment on it.

20.    General principles of procedural fairness would not require that the applicants, being persons affected by the controlled action decision as members of the public or a class of the public, be afforded a hearing.

21.    The EPBC Act imposes obligations on the Minister, before making a controlled action decision, to publish and seek comments on a referral (including from the public), and to take those comments into account. The Minister relevantly complied with those obligations by publishing the referral, inviting public comment on it and considering the comments.

22.    Contrary to the applicants’ submissions, the public consultation obligations imposed by the EPBC Act, and other provisions of Part 7, are positively incompatible with the proposition that an additional obligation of procedural fairness is owed to persons such as the applicants.

    (Footnotes omitted.)

185    Tassal’s written submissions were as follows:

10.    The procedural fairness complaint is misconceived: Wilderness Society Inc –v- Turnbull [2007] FCAFC 175; (2007) 166 FCR 154 at [80-90], Branson and Finn JJ.

11.    In any event, the complaint is devoid of merit. The extent of the obligation imposed upon the Minister is to cause ‘the referral’ to be published. In this case, the referral of the second respondent pursuant to s.68. Section 72 regulates the form and content of a referral, as prescribed by the regulations. Regulations 4.02 and 4.03 apply, in conjunction with schedule 2. The referral does not include any of the information specified by the appellants at paragraph 3C of the amended application. For completeness, and although the applicants do not agitate this point, it was open to the delegate to seek assistance from GHD, as a consultant.

    (Footnotes omitted.)

186    Paragraphs [80] to [85] of the judgment of Branson and Finn JJ in Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154 (Wilderness Society) cited by Tassal in its written submissions are as follows:

80    In our view the appellant’s submission on this ground of appeal misconceives the nature and purpose of the provision for public comment in the scheme of the Act. The submission simply assumes it enshrines a statutory procedural fairness requirement of sorts. Whether this is so, indeed whether it is at all helpful to resort to the language of procedural fairness in relation to the public comment provisions, is questionable. Irrespective of whether the duty to accord procedural fairness is properly to be characterised as a common law duty subject to a contrary statutory intent or as an implied legislative qualification on a statutory discretion, it is clear that, in either case, any consideration of whether such a duty exists at all in a given instance and, if so, what is its content, depends first and foremost upon a critical examination of the statutory framework within which the statutory power in question falls to be exercised. Such an examination of the EPBC Act leads inevitably to a rejection of the appellant’s submission.

81    The first stated object of the Act is to provide for the protection of the environment, especially those aspects of the environment that are matters of “national economic significance”. Such matters provide the principal focus of the actions and activities requiring approval under Chapter 2 Part 3 Division 1 of the Act: see also Australia, Senate, Debates (1998) Vol S 193, pp 209-210. Consistent with this national focus, the text and structure of the legislation clearly acknowledges the interest the public may have in the burden of the Act itself, and in its administration, and in the likely interest members of the public may have in particular actions and activities for which approvals are required under the Act. This is reflected in the extent to which it provides for transparency and accountability (primarily through the imposition of publication requirements at various stages in the assessment and approval process, the duty to give reasons for decisions and in enhanced provisions for judicial and other review) and for public participation (particularly in its requirements for inviting public comments and for how such comments are to be dealt with).

82    Significantly, the various public comment provisions in Divisions 3A to 6 are indifferent to whether the responding members of the public support, oppose or are indifferent to, approval being given to the referred action in question. The invitation to comment, in other words, is not limited to persons who might be affected directly and adversely in their rights, interests or legitimate expectations by an exercise of the Minister’s s 133 power to approve the taking of a controlled action. This rather suggests that the public comment provisions themselves are not aimed at avoiding “practical injustice”: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]; to persons who are likely to be affected adversely by an approval decision: cf Kioa v West (1985) 159 CLR 550 at 584. Rather, as the language of s 95(2)(c) suggests, the invitation is to “anyone” to comment irrespective of any affect an approval decision may be likely to have on them. The section’s purpose in consequence appears to be to invite the participation of members of the Australian community and of interested entities to express such opinions, remarks, criticisms etc as they are minded to make on (in the case of s 95(2)(c)) the information specified in the direction and on the controlled action, those opinions etc being matter that must be published in the manner required by s 95(1) and that the Minister is obliged to take into account when making a decision under s 133: see s 136. So viewed the purpose of the public comment provisions (of which s 95(2)(c) is one) can, in the context of the provisions requiring their publication, being forwarded to the Minister etc, properly be characterised as devices intended to promote and enhance (a) public participation in the processes of the Act; (b) transparency in the Act’s administration and (c) accountability of the Minister and his Department. The comment provisions serve public purposes, not the purposes of individual members of the public who accept the invitation to comment. It is, in our view, inapt to describe them as statutory procedural fairness provisions or as having procedural fairness notions engrafted upon them.

83    This characterisation becomes the more apparent when one has regard to the second major preoccupation evidenced in the Act’s assessment and approval scheme. This relates to efficient and timely decision-making in the assessment and approval process. We have referred to aspects of this in our consideration of the Act itself and have noted, for example, the use and/or recurrence of phrases such as “on the same day”, “as soon as practicable”, etc. As the Second Reading Speeches to the 1998 Bill and the 2006 Amending Bill acknowledge, the Act employs tight statutory timeframes in all stages of the process: see ante [65].

84    The approach of the EPBC Act to assessment and approval can well be described as one of studied haste. This can create some tension between the conduct of assessment processes (including community participation therein) and securing expeditious finalisation of the approval process itself. “Efficient decision making should be well informed”: cf the comments of Mason P in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 621. But the processes of information gathering themselves are not without costs, financial and otherwise, which may have their own imperatives and which may contrive the period to be allowed for comment in the decision making scheme itself.

85    It may be accepted that a purpose of the s 95(2)(c) public comment requirement is to promote informed decision making by the Minister. The Act requires the proponent to prepare a document setting out (inter alia) changes or additions to the information he has given to the Minister which the proponent has needed to make to take account of public comments made: s 95B(1)(a); and the Minister in turn has to receive the comment and to take them into account in taking the approval decision: s 95B(1)(b) and s 136(2)(bc). This said, the scheme of the Act in providing for public comment in s 95(2) can hardly be said to privilege the time to be given for making that comment over the manifest policy of efficient and timely decision making that is otherwise evidenced in the timeframe in Parts 7 and 8 of Chapter 4. While it is the case that s 95(2), in common with s 98(1)(c) and s 103(1)(c), does not specify a period for public comment, the clear legislative intent of Division 4, in our view, is that the time specified in the s 95(2) direction will be consonant with the timeframe otherwise set for an assessment on preliminary documentation: see s 91(1), s 95(2), s 95B(1), s 95C(1) and s 130(1B)(c). We would note in passing that the 20 business day period selected in the present matter cannot reasonably be said to be otherwise than compatible with that timeframe. That no time for comment is legislatively specified for the period of comment seems to provide no more than flexibility in fixing an appropriate time in a given instance, regard being had to the timeframe otherwise fixed for assessment under Division 4. Paragraph 101 of the Explanatory Memorandum to the 2006 Amending Act clearly envisaged that s 95 would allow a proponent who provided adequate information for assessment in its referral to take advantage of a “reduced timeframe for assessment”. This at least suggests that a relatively short period for comment was envisaged for assessments on preliminary documentation.

187    In written submissions in reply the Applicants submitted:

19.    Where the legislature has intended to limit the content of procedural fairness obligations in the EPBC Act, it has done so by clear words - eg s 131AA(7).

20.    Part 7 of Chapter 4 of the EPBC Act contains no express provisions to exclude or limit the application of procedural fairness in the exercise of the s 75(1) powers. It follows that the legislature did not intend to limit procedural fairness obligations in Part 7 of Chapter 4 of the EPBC Act (provided the decision is to be made within time).

21.    It is right to equate the interest which tends to attract the protection of the principles of natural justice with the interest which, if affected, gives standing at common law to seek a public law remedy.

22.    Because of their direct connection with nearby land in Triabunna and Spring Bay, the First and Second Applicants are likely to be detrimentally affected by Second Respondent’s fish farm operations, and have a real interest in raising the questions agitated in this proceeding. That interest, and the fact that the First and Second Applicants submitted comments to the Minister under s 74(3), is sufficient to attract the protection of the principles of natural justice. Further, the Bob Brown Foundation also has an interest of a kind recognised by the EPBC Act, for the purposes of standing under that Act. Although that is a distinct question from standing under the ADJR Act, it is supportive of an obligation to provide procedural fairness in making a decision under the EPBC Act.

23.    The referral was required to contain the particulars set out in Schedule 2 to the Regulations. If any of those particulars were to be materially varied, then the procedure for doing so under the Act should have been followed, including by the simple and speedy step of providing notice of the information prescribed by r 5.08 of the Regulations.

    (Footnotes omitted.)

188    Toward the end of oral argument, Mr Walters sought leave for the First and Second Applicants to file and serve further affidavit material in order to identify with greater precision the nature of their special interests said by each of them to engage the natural justice hearing rule. The Court gave leave, subject to potential objections, for such affidavits to be filed.

Consideration

Generally

189    The Court has earlier given its reasons for concluding that the action proposed by Tassal remained unchanged during the course of the referral process.

190    For that reason, the Court does not accept the factual underpinning of the Applicants’ written submission at [28(f)] that the undisclosed material presented a significantly different proposal. Even accepting, for the sake of argument, that the Department’s and GHD’s advice to the Minister assessed the impact of Tassal’s proposed action differently, what Tassal proposed as its action remained the same throughout the referral process. The Minister’s Department’s advice could not alter it. It was for the Minister to consider whether or not that action was or was not a controlled action.

191    In undertaking that statutory duty, the Minister was entitled to rely on the advice of his Department. It is not suggested that there was any breach of procedural fairness in the Department’s briefing to the Minister not being supplied to the Applicants.

192    No point was taken in these proceedings that it was not open to the Department to have sought external expert advice from GHD to inform its briefing with respect to Tassal’s proposed action. It is clear that the Department gave GHD the further information Tassal had supplied to the Minister for that purpose. In that context, what GHD did in providing its report to the Department was neither distinct nor severable from the role ordinarily played by officers of the Department. Treated analogously, there was no breach of procedural fairness in not supplying that material, in those circumstances, to the Applicants.

193    In determining whether or not Tassal’s proposed action was a controlled action the Minister had to have regard to any comment which the Applicants had provided. He was briefed on those questions in Appendix H of the Department’s submission to him. It is not suggested in these proceedings that the Minister failed to have regard to that comment. This Court cannot review the merits of the conclusions he reached in those regards.

194    With one qualification I would accept Mr Kennett’s submission that the EPBC Act expressly limits the opportunity for members of the public to comment on a proposal to take an action provided for in s 75(3) such that it could never be a breach of procedural fairness for the Minister to fail to publish anything further.

195    Having regard to the conclusions reached by Branson and Finn JJ in Wilderness Society I accept that in the ordinary case, the EPBC Act confines the Minister’s duty to publish details of any referral to the ‘once off’ occasion provided for in s 75(3) and that, upon doing so, the Minister’s duty is fully discharged. What appears from the reasons of their Honours set out at [186] above is sufficient for the Court to conclude the position of the Third Applicant in these proceedings, and of the First and Second Applicants in so far as their interests are confined to their status as members of the public.

196    However the Court would confine its reasoning to the actual circumstances before it: that is where the proponent’s proposed action has not altered during the referral process.

197    The EPBC Act (s 156A – Request to vary proposal to take an action) expressly provides for the possibility that a person who has proposed to take an action may seek a variation of that ‘action’. By its terms, s 156B(2) permits only changes which would not significantly change the nature of the action proposed. However, if such a change was to be permitted, that may or may not provide a reason to alter the ordinary position. The decision in Wilderness Society does not compel a negative answer.

198    Different issues of statutory interpretation potentially might be relevant to the Minister’s duty in such a circumstance. Putting aside any such duty, it may be that the Minister has a discretionary power to solicit further comment from members of the public to assist his decision making in respect of the varied action pursuant to the EPBC Act. If such a power exists, a question similar to that which arose in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 might become relevant: that is whether it would be legally unreasonable for the Minister not to consider exercising the discretion. The question of whether the ordinary position would have applied had Tassal’s proposal been varied does not need to be determined.

199    Such questions are more appropriately to be reserved for determination in a matter in which they actually arise.

The special interests asserted by the First and Second Applicants

200    Mr McElwaine submits that it would have been impermissible for the Minister, in undertaking his statutory duty under s 75 of the EBPC Act, to have regard to any potential adverse impacts the proposed action might have on any matters other than the matters of national environmental significance defined in Part 3 Division 1 of the EPBC Act.

201    The EPBC Act, he submits, is supplemental to and does not displace other Commonwealth or state laws applying to a development proposal. Tassal’s proposed action was not thereby immunised by the Minister’s determination from their operation. The First and Second Applicants, however, must look to such other planning laws as might apply to provide a remedy for any adverse affectation of their private interests.

202    I accept that submission.

203    Any decision of the Minister would be liable to be set aside for legal error (taking account of an irrelevant consideration) were the Minister to make a decision under s 75 of the EPBC Act in order to protect a private interest from affectation.

204    It cannot be a breach of natural justice, or a failure to accord procedural fairness, for the Minister not to provide a hearing to a person in relation to possible adverse affectation of their private interests if the Minister by law is required to disregard such impacts.

205    I granted leave for the First and Second Applicants to file and serve further affidavits in order to identify with greater precision the nature of their special interests said by each of them to engage the natural justice hearing rule. An affidavit was filed by the First and Second Applicants. Substantial objections to the admissibility of that affidavit were notified to the Court by each of the respondents. Having regard to the conclusions the Court has reached, the content of that affidavit cannot affect the Court’s decision. There is thus no utility in descending to the detail of the more specific objections made by the Respondents to it being read. The Court rejects the tender of the affidavit because it lacks relevance.

206    In so far as the First and Second Applicants advance arguments unrelated to their private interests, they stand in no different position to any other member of the public.

207    I would reject Ground 3 of the Applicants’ application for review.

Costs

208    Having regard to my conclusions, the Applicants fail to obtain the relief under the ADJR Act they have sought.

209    However the propositions advanced by the Applicants were not without arguable merit. Indeed, the Court records its gratitude to each of Mr Walters, Mr Kennett and Mr McElwaine who appeared as senior counsel for the respective parties. Each provided considerable assistance to the Court. That the Court may not have accepted a particular submission advanced by counsel on behalf of a party is no indication to the contrary.

210    I am mindful that the standing of the Third Applicant, the Bob Brown Foundation Inc., to bring these proceedings was accepted by the Minister and Tassal on the basis that it was an organisation whose objects specifically are directed towards protection of the environment. It, together with the First and Second Applicants, clearly went to considerable effort to provide relevant comment to the Minister during the referral process.

211    In my view it would be available to the Court to accept that in doing so and then challenging the Minister’s decision on arguable, although ultimately rejected, grounds the Third Applicant should be accepted to have met the conditions for the application of the Oshlack approach to costs in public interest litigation as discussed by Heerey J in Blue Wedges at [73] to [75] of his Honour’s reasons, citing Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

212    The Oshlack principle is not available in the instance of the First and Second Applicants. The positions of the First and Second Applicants are to be distinguished from the Third Applicant in that each not only contended that as members of the public they had an interest in these proceedings, but also that they had a private interest that should be vindicated. Having failed on both bases, there is no reason why costs orders should not be made against them to the degree established as appropriate having regard to the measure of success achieved by the parties which resisted the orders they sought.

213    Tassal prima facie is entitled to a costs order in its favour as against the First and Second Applicants for the whole of its costs on a party and party basis. Its submissions have been upheld on all grounds. However I discern nothing that would entitle Tassal to have its costs other than on the ordinary basis.

214    In respect of the First Respondent I am minded to order that the First and Second Applicants meet most but not all of the Minister’s costs on a party and party basis. Some discount is appropriate because, although the Applicants’ application for review has been dismissed, the Court has rejected the submissions advanced on the Minister’s behalf in order to reach that conclusion. As noted at [157], but for the Court having accepted the alternative basis advanced by Mr McElwaine for upholding the Minister’s decision, the Court, subject to discretionary considerations, may have granted the Applicants the relief they sought.

215    However any reduction should be modest having regard both to the substantive outcome and the Minister’s success on the other grounds. The prima facie position I reach is that the Minister should have 85% of his costs met by the First and Second Applicants on a party and party basis.

216    Because the parties have not had any opportunity to examine the Court’s reasons I would give them 7 days from the date of their publication for any party to file and serve any written submissions on costs limited to no more than 3 pages should they be advised to contend for orders other as proposed in these reasons. In such an event, any other party will have a further 7 days to file and serve responsive submissions limited to 3 pages. The Court will consider any such submissions and make its final decision on the papers.

217    If no submissions are received seeking a variation to the orders the Court has indicatively proposed the Court will make final orders in those terms.

Associate:

Dated:    12 April 2018