FEDERAL COURT OF AUSTRALIA

Estates 77 Pty Ltd v Minister for the Environment [2019] FCA 1427

ORDERS

THE COURT ORDERS THAT:

1.    The respondent prepare a minute to reflect these reasons.

2.    Costs be reserved.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicants apply under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) seeking review of a decision of the Minister for the Environment pursuant to s 75(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), that the residential development (the Proposed Action) of Lots 635, 739 and 740 on Deposited Plan 202751, Baldivis Road, Baldivis, Western Australia (the Subject Land) is a ‘controlled action’ under the EPBC Act and will require assessment and approval under the EPBC Act before it can proceed.

2    The hearing is listed on 4 September 2019. After the filing of written submissions it became clear that there was a significant disagreement as to the nature of the present proceeding. The disagreement, in short, concerns whether, in this application, it is a question of jurisdictional fact (for the Court to decide afresh on the evidence before the Court) whether the Proposed Action is likely to have a ‘significant impact’ on listed threatened species of cockatoo.

3    It was resolved between the parties and the Court that, with allowance being made for further written submissions to be filed, this discrete legal issue would be determined on the papers with short written reasons to be published, if possible, prior to hearing. These are those reasons.

THE DISAGREEMENT

4    The disagreement between the parties centres on whether the Court may consider for itself whether the Proposed Action has, or will have, or is likely to have, a ‘significant impact’ upon at least some of the three species of black cockatoo that are purported to inhabit the Subject Site.

5    Paragraph 2 of the originating application asserts:

The Proposed Action is not a controlled action within the meaning of the EPBC Act (as the Proposed Action will not have significant impact on a protected matter under sections 18 and 18A EPBC Act).

(Emphasis added.)

STATUTORY FRAMEWORK

6    The objects of the EPBC Act, which came into statutory effect on 16 July 2000, include provision for the protection of the environment, especially those aspects of the environment that are ‘matters of national environmental significance’. Part 3 of Ch 2 of the EPBC Act sets out a number of such matters for which assessment and approval is required. These include world heritage properties, national heritage places, wetlands of international importance and listed threatened species and communities.

7    By s 18(3)(b) of the EPBC Act, a person must not take an action that ‘is likely to have a significant impact on a listed threatened species included in the endangered category’. By s 18(4)(b) of the EPBC Act, a person must not take an action that ‘is likely to have significant impact on a listed threatened species included in the vulnerable category’.

8    Section 67 of the EPBC Act provides:

67    What is a controlled action?

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

9    For the purpose of s 18 of the EPBC Act, the issue of whether or not a proposed action is a controlled action depends on whether the action is likely to have a ‘significant impact’ on a listed threatened species. ‘Significant impact’ is undefined in the EPBC Act. The Department of the Environment and Energy has published guidelines to assist in determining whether or not an action is likely to have a significant impact. Though, by the glossary on the Department’s website under the ‘About the EPBC Act’ pages, it is defined as follows:

A significant impact is an impact which is important, notable, or of consequence, having regard to its context or intensity. Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted, and upon the intensity, duration, magnitude and geographic extent of the impacts. You should consider all of these factors when determining whether an action is likely to have a significant impact on the environment.

10    Approval is required before taking controlled action.

11    In the present situation, the Minister’s delegate acted on advice from the Department that the Department considered the Proposed Action was:

likely to result in significant impacts to Black Cockatoos as there is a real chance or possibility that it will adversely affect habitat critical to the survival of Black Cockatoo species.

12    The Departmental advice to the delegate did note that two public submissions from Murdoch University and the City had been received. The advice recorded that in the Department’s view, the information in the referral documentation was sufficient to reach the conclusion that the Proposed Action was a controlled action. Reliance was placed, in part, on a report of ‘Western Wildlife Black Cockatoo habitat assessment’, an RPS environment assessment report and a report from Bamford Consulting Ecologist entitled ‘Black Cockatoos nest tree survey’.

13    The various reports relied upon by the Minister have been reviewed by an environmental consultant, Mr Jack Hick, who the applicants would seek to call to give evidence in support of the applicants’ application. Objection is taken by the Minister to Mr Hick’s affidavit on the basis that it is not for this Court to conduct a merits review as to the question of ‘significant impact’.

14    The process concerning approvals is set out in Pt 7 of the EPBC Act. Section 68 provides for a self-referral process by a 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.

15    By s 69 a State or Territory may refer a proposal to the Minister.

16    Section 70 provides for the Minister to request referral of a proposal:

(1)    If the Minister believes a person proposes to take an action that the Minister thinks may be or is a controlled action, the Minister may request:

(a)    the person; or

(b)    a State, self-governing Territory or agency of a State or self-governing Territory that the Minister believes has administrative responsibilities relating to the action;

to refer the proposal to the Minister within 15 business days or a longer period agreed by the Minister and the requested person, State, Territory or agency (as appropriate).

Note 1:    If the proposal to take the action is not referred, the person cannot get an approval under Part 9 to take the action. If taking the action without approval contravenes Part 3, an injunction could be sought to prevent or stop the action, or the person could be ordered to pay a pecuniary penalty.

Note 2:    Section 156 sets out rules about time limits.

(2)    In making a request, the Minister must act in accordance with the regulations (if any).

Deemed referral of proposal

(3)    If:

(a)    the Minister has made a request under subsection (1); and

(b)    the period for compliance with the request has ended; and

(c)    the requested person has not referred the proposal to the Minister in accordance with the request;

the Minister may, within 20 business days after the end of that period, determine in writing that this Act has effect as if:

(d)    if paragraph (1)(a) applies—the requested person had referred the proposal to the Minister under subsection 68(1) at the time the determination was made; or

(e)    if paragraph (1)(b) applies—the requested person had referred the proposal to the Minister under subsection 69(1) at the time the determination was made.

(4)    A determination under subsection (3) has effect accordingly.

(5)    A copy of a determination under subsection (3) is to be given to the requested person.

(6)    Subsection 68(3) and section 72 do not apply to a referral covered by subsection (3) of this section.

(8) [sic]    Subsection 74(3) applies to a referral covered by subsection (3) of this section as if the reference in paragraph 74(3)(a) to the referral were a reference to the determination concerned.

17    Section 75 concerns when Ministerial approval is required:

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.

…

BACKGROUND

18    As the applicants note, on 29 March 2019, the Minister decided under s 75 and s 87 of the EPBC Act that the Proposed Action was a ‘controlled action’ under the EPBC Act and that the Proposed Action would require assessment and approval under that Act before it could proceed (the Controlled Action Decision). The Minister further notified that the Proposed Action would need to be assessed by preliminary documentation.

19    The applicants are aggrieved by the Minster’s decision. They commenced this proceeding for judicial review in respect of the decision under s 5 and s 6 of the ADJR Act. The applicants say, in particular, they are aggrieved by:

(a)    the Minister’s delegate’s Deemed Referral Decision (referred to below);

(b)    the Minister’s delegate’s Controlled Action Decision; and

(c)    the Minister’s delegate’s conduct in deciding to proceed with an assessment of the Proposed Action purportedly under the EPBC Act.

The first ground of review is that the Minister did not have jurisdiction to make the decision (in that the Proposed Action is not a controlled action under the EPBC Act). The second ground is that the decision involved an error of law (in that it was not a controlled action as it is exempt under the EPBC Act). These reasons only deal with the first ground. There are further matters in relation to the proposal to conduct an assessment. Again, these matters are not dealt with in these reasons, finalised on an urgent basis.

20    In addition to the ADJR Act grounds, there is an application pursuant to s 39B of the Judiciary Act for a writ of prohibition against the Minister to take no further action or steps in respect of the Minister’s proposed assessment of the Proposed Action. The grounds in support of the writ are the same as those relied upon under the ADJR Act. Accordingly, it is sufficient to consider only the jurisdiction ground under the ADJR Act.

21    There are some matters of background which are desirable to flesh out. I adopt the substance of the applicants’ recitation of facts for present purposes to give context to these reasons, but the facts have not at this stage been formally proved. By the same token, it does not appear that any issue is taken with the applicants’ account of the facts by the Minister, certainly for present purposes. Although the direct involvement of the Minister does not occur until May 2017 in this account.

The applicants’ background to the Proposed Action

22    The Subject Land was rezoned ‘Urban Deferred’ pursuant to MRS Amendment 937/33 (South West Corridor Stage B) to the Metropolitan Region Scheme, which amendment became effective on 10 December 1994. Its purpose was to give effect to the proposals in the South West Corridor Structure Plan within the City of Rockingham. At the same time, and as part of the process of MRS Amendment 937/33, the Environmental Protection Authority for the State of Western Australia (the EPA) set a level of ‘Public Environmental Review’ (Assessment Number 838) for certain aspects of proposed MRS Amendment 937/33 and produced EPA Bulletin 746 dated July 1994. The other land use changes proposed by the proposed MRS Amendment 937/33 (including the proposed Urban Deferred zoning for the Subject Land) were to be considered by the EPA at the level of ‘informal review with public advice’.

23    The advice of the EPA was contained in a letter of 5 May 1994 (also annexed as Appendix 5 to EPA Bulletin 746 stated to be ‘not subject to appeal’), included the following:

The [EPA] considers that decisions on the use of bushland areas outside Systems Recommendation areas and conservation areas should be made through the planning process, both at the State and local level.

24    The then State Minister for the Environment determined to approve MRS Amendment 937/33, subject to conditions (which did not relate to the Subject Land) by Ministerial Statement 368, dated 11 October 1994: ‘Statement That A Proposal May Be Implemented (pursuant to the provisions of the Environmental Protection Act 1986)’.

25    The structure planning for the Baldivis area was progressed by the City, which adopted the South Baldivis District Structure Plan (the SBDSP) in 2001. The Subject Land was located within Precinct 4 of the SBDSP (constituting approximately 70% of Precinct 4) and planned for a predominant zoning of ‘Urban’ for an ultimate planned population of 4,290 people.

26    The Subject Land was zoned ‘Development’ in the City’s Town Planning Scheme No 2 (the TPS2), as entered into the (State) Government Gazette on 19 November 2004. Clause 4.2.4 of the TPS2 required a local structure plan to be prepared to support the development or subdivision of any land within the Development zone.

27    Planning consultants for the applicants lodged a draft proposed Local Structure Plan (the LSP) with the City on 18 March 2010, setting out a proposed design for 870 residential lots. In April 2010, the planning consultants also lodged with the West Australian Planning Commission (the WAPC) a request (with supporting information) for the lifting of the Urban Deferment zoning to Urban zoning.

28    The draft proposed LSP was revised a number of times in October 2011. A fourth version was submitted by the applicants’ planning consultants to the City. It enclosed an Environmental Assessment Report dated September 2011, prepared by RPS Environmental Consultants. It advised, amongst other things, that due to the topography there was a need to reduce the levels across the site to a maximum of approximately 28-30 metres AHD which ‘will result in very little ability to retain native trees across most of the site’. RPS had earlier commissioned a tree survey from Bamford Consulting Ecologists dated 2 March 2011, which had been required by the City as a requirement for advertising the draft proposed LSP.

29    The WAPC had referred the proposed lifting of Urban Deferment (draft MRS Amendment 1262/27) to the EPA by a letter of 31 May 2010. The EPA responded on 20 July 2010, noting that the environmental issues raised included Carnaby’s Black Cockatoo and advised it was expected that the identified environmental factors would be adequately managed where possible through detailed planning processes.

30    The WAPC resolved on 10 December 2013 to proceed with MRS Amendment 1262/27 for the transfer of the Subject Land from the Urban Deferred zone to the Urban zone.

31    On 2 September 2014, the applicants applied to the WAPC for the approval of the proposed subdivision of lots 635, 739 and 740, including 868 single residential lots, seven grouped housing lots and three duplex lots. The WAPC issued an approval of the proposed subdivision, subject to a number of conditions on 27 February 2015. The conditions required compliance with a fire management plan. On 24 March 2015, the WAPC advised the Chief Executive Officer of the City that modifications to the LSP had been satisfactorily undertaken and the WAPC had resolved to endorse the modified LSP.

32    By an application of 21 July 2016, the applicants applied to the WAPC for the approval of the proposed subdivision of portions of lots 635 and 739 (first stage), including 247 residential lots. The WAPC approved the subdivision, subject to various conditions. The conditions included a condition requiring the applicants to implement a fire management plan with such a plan to be implemented during the subdivision works. The works for the approved subdivision are deposed to have proceeded accordingly.

Commonwealth involvement

33    The Department wrote to the applicants on 23 May 2017 advising of matters of national environmental significance under the EPBC Act that were known to occur included Carnaby’s Black Cockatoos (listed endangered under the EPBC Act) and the Forest Red-Tailed Black Cockatoos (listed vulnerable under the EPBC Act) and that the proposed residential development of the Subject Land may have potential to have significant effect on Carnaby’s Black Cockatoos and the Forest Red-Tailed Black Cockatoos.

34    On 14 June 2017, the applicants’ project manager, Spatial Property Group (SPG) wrote to the Department advising that the landowners had determined it was highly unlikely that there was any significant impact to matters of national environmental significance and as a result determined that referral under the EPBC Act was not necessary. The Department advised by letter of 5 July 2017 that local and/or state approvals did not extinguish the requirements under the EPBC Act and that the Departmental officers would carry out an inspection on the site under a monitoring warrant.

35    The delegate of the Department made the Deemed Referral Decision under s 70(3) of the EPBC Act on 17 December 2018, to deem that the EPBC Act had effect in respect of the Proposed Action as if the Proposed Action had been referred under the EPBC Act by the applicants.

36    The delegate gave notification on 29 March 2019 that the Proposed Action was a ‘controlled action’ for the purposes of the EPBC Act and would require assessment and approval before it could proceed.

THE APPLICANTS’ CONTENTIONS

37    The applicants’ contention remains that the Proposed Action would not have any significant impact on matters of national environmental significance and, in particular, on the Carnaby’s Black Cockatoos and on the Forest Red-Tailed Black Cockatoos. The applicants contend that referral under the EPBC Act is not and was not necessary as a matter of law.

38    The applicants contend that they are entitled to proceed with the subdivision works approved by the WAPC as being subject to the exemption of a prior ‘environmental authorisation’ under s 43A of the EPBC Act, in particular, the EPA Bulletin No 746 of July 1994 and the Ministerial Statement No 368 of 11 October 1994.

39    The applicants contend there has been no valid and reasonable basis for the Deemed Referral Decision by the Minister under s 70(3) of the EPBC Act or for the Controlled Action Decision under s 75 of the EPBC Act. The Controlled Action Decision and the delegate of the Minister’s decision to conduct and undertake an assessment of the Proposed Action is causing further prejudice to the applicants by frustrating the implementation of the Proposed Action, in particular, the subdivision works authorised under the WAPC subdivisions approvals.

40    As to the present disagreement, the applicants accept that the Minister must make a decision under s 75(1) of the EPBC Act as to whether the action that is the subject of a proposal referred to the Minister is a ‘controlled action’, but argues that the clear statutory language suggests that the controlled action decision is a ‘yes’ or ‘no’ proposition and in that sense cannot be construed as a process on which reasonable minds may differ.

41    Subsection 75(1) can be distinguished, the applicants argue, from those statutory provisions requiring a decision-maker to undertake an evaluative exercise and reach a state of satisfaction about a jurisdictional point in the manner discussed, for example, in Sanders v City of South Perth [2019] WASC 226 per Quinlan CJ (at [97]-[108]).

42    The applicants argue that if the materials available for the Minister do not disclose an objective likelihood that an action will have a significant impact on matters of national environmental significance under s 75(1) of the EPBC Act, the Minister must determine that there is no controlled action. The likelihood in this regard, according to the applicants, must refer to something more than mere chance or possibility.

43    According to the evidence which the applicants would call from Mr Hicks no such likelihood arises such that the applicants submit that the Minister did not have jurisdiction to make the decision that the Proposed Action was a ‘controlled action’.

THE MINISTER’S CONTENTIONS

44    The Minister says that in the context of a decision under s 75(1) of the EPBC Act, the question of whether the taking of an action has, will have, or is likely to have, a ‘significant impact’ on matters of national environmental significance is a question of fact for the Minister: Greentree v Minister for Environment and Heritage (2005) 144 FCR 388 per Kiefel J (as her Honour then was) (at [45]), with whom Weinberg J agreed (at [58]) and Edmonds J agreed (at [59]). The Court, on judicial review, is concerned with the legality of the decision and whether it is within the authority of the statute, rather than with its underlying merits or mere errors of fact.

45    A jurisdictional fact has been said to be a fact the existence of which is a criterion which enlivens the power in question: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ (at [28]). In some cases, the existence of a state of mind, such as a state of satisfaction, will be a jurisdictional fact: Tsvetnenko v United States of America [2019] FCAFC 74 per Besanko, Banks-Smith and Colvin JJ (at [28]-[29] and the authorities therein cited).

46    In Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities (2012) 291 ALR 52, Gilmour J held that the requirement for the Minister to be ‘satisfied’ under s 78(1), that substantial new information warranted the revocation and substitution of a new decision under s 75(1), was a jurisdictional fact: see Landcorp (at [29]). The satisfaction had to be formed by the Minister before his consequential power would be enlivened and, as such, the Minister’s satisfaction (as opposed to the fact of which he was required to be satisfied) was a jurisdictional fact.

47    The Minister argues that s 75(1) of the EPBC Act provides that it is ‘the Minister’ who ‘must decide … whether the action that is the subject of a proposal referred to the Minister is a controlled action’ and ‘which provisions of Pt 3 (if any) are the controlling provisions for the action’. The Minister decided, as part of the Controlled Action Decision that s 18 and s 18A of the EPBC Act are the controlling provisions for the Proposed Action. Section 18A(1) and s 18A(2) are offence provisions that come to apply where a person takes an action that results, or will result, or is likely to result, in a significant impact on (relevantly) a listed threatened species. The need for the Minister to form a view about whether s 18 and s 18A are controlling provisions when making a decision under s 75(1) will involve some determination of the likelihood of significant impact arising from the Proposed Action. However, the Minister argues, that does not make likelihood of ‘significant impact’ a jurisdictional fact for this Court to decide when reviewing a decision under s 75(1) of the EPBC Act. It is a question reserved for the Minister.

CONSIDERATION

48    In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527, the Full Court (Bromberg, Katzmann and O’Callaghan JJ) recently summarised the principles concerning to jurisdictional facts (at [98]-[102]):

98    A jurisdictional fact is a condition precedent to the exercise of jurisdiction or a criterion the satisfaction of which enlivens a statutory power or discretion; unless the condition is fulfilled or the criterion satisfied, a decision purportedly made in the exercise of the jurisdiction or the power or discretion conferred by the relevant statute will have been made without authority: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (R v Connell) at 429-430; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [43]. A decision will be tainted by jurisdictional error if the Court finds that there was no such fact at the time the decision was made: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (Timbarra) at [37].

99    If the exercise of power is expressly conditioned on the formation of an opinion or belief by the decision-maker, however, the existence of the requisite opinion or belief is a jurisdictional fact: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] (French CJ). This principle is not restricted to the exercise of powers as distinct from duties. Section 65(1) of the Migration Act 1958 (Cth), for example, imposes an obligation on the responsible Minister to grant a visa the subject of a valid application if he or she is satisfied of a number of matters, and an obligation to refuse to grant it if not so satisfied. The satisfaction of the Minister is a condition precedent to the discharge of the obligation and a jurisdictional fact, reviewable under s 75(v) of the Constitution of the Commonwealth (the Constitution): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131] (Gummow J); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12.

100    Not all conditions precedent or criteria for the exercise of a statutory power or discretion are jurisdictional facts. That depends on whether, as a matter of statutory construction, Parliament intended that the question of satisfaction of the conditions or criteria be left to the administrative decision-maker or, in the final instance, to a court on judicial review: Public Service Association and Professional Offıcers’ Association Amalgamated Union (NSW) v New South Wales (2014) 242 IR 338 at [75] (Basten JA); Australian Commercial Catering Pty Ltd v Fair Work Commission (2015) 235 FCR 441 (ACC v FWC) (Tracey, Barker and Katzmann JJ) at [42].

101    Where the exercise of statutory construction leads to the conclusion that Parliament intended that the relevant criterion can only be met if the relevant fact or facts objectively exist, “the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts”: Timbarra at [40] (Spigelman CJ, Mason P and Meagher JA agreeing at [123] and [124] respectively).

102    In ACC v FWC the Full Court addressed the exercise of statutory construction at [43]-[44]:

43    To properly construe the statute, it is necessary to examine both the language in which the relevant provision is cast and “the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional”: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [6] (Spigelman CJ) …

44    His Honour also observed (at [89]) that where the criterion is a matter upon which reasonable minds may differ it is less likely that Parliament intended the criterion to be an objective fact. Similarly, in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] French CJ said that “[w]hen a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court”.

49    In my view, the point the subject of the current disagreement was authoritatively determined by a Full Court in Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54. There the Full Court (Tamberlin, Finn and Mansfield JJ) stated (at [26]):

Section 75(1) of the Act imposes a duty on the Minister to decide whether a proposed action is a controlled action. In making this decision, the Minister must take into account the elements of a controlled action as defined by s 67, which in turn involves a determination whether the proposed action would be prohibited by a provision of Pt 3 of the Act, including those provisions which give rise to what the appellant asserts is the condition precedent of s 75(1). The determination of this latter question involves a duty to determine whether there would be a prohibition under Pt 3 of the Act which applies to the proposed action because the action has, will have or is likely to have a significant impact on a relevant aspect of the environment. The duty to make this determination is assigned to the Minister. It is not given to a court or tribunal, and is not expressed as an objective matter. As a result, the performance of this duty is not properly to be regarded as a condition precedent to the exercise of the power in s 75(1).

(Emphasis added.)

See also Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60 per Flick J (at [44]).

50    Further, in Anvil Hill, the Full Court explained why it would be inconsistent with the scheme of the EPBC Act for this question of significant impact to be a jurisdictional fact as follows (at [33]):

As a matter of practical consequence, if the question of significant impact was considered to be a jurisdictional fact, then, according to the scheme of the Act, a challenge could be made before a court as to whether there was actually and objectively a significant impact on the matters protected by Pt 3 of the Act. Accordingly, the decision of the Minister on this point could be challenged immediately after it was made, and many months might elapse until a final resolution was reached. Such a legal challenge in many cases could involve very substantial delays to the approval process established by the Act, which would be inconsistent with its purpose of adopting an efficient and timely environmental assessment and approval process.

51    The applicants rely on Landcorp in support of the proposition that the question of whether a proposed action is or is not likely to have a significant impact on a species is a ‘jurisdictional issue capable of being reviewed under the ADJR Act’. There Gilmour J said (at [42]):

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

52    Landcorp concerns s 78 of the EPBC Act and not s 75, which is the provision under which the Controlled Action Decision was made.

53    Section 78 deals with the Minister’s power to revoke an earlier decision, materially providing:

78    Reconsideration of decision

Limited power to vary or substitute decisions

(1)    The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:

(a)    the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:

(i)    has or will have; or

(ii)    is likely to have;

on a matter protected by a provision of Part 3; or

…

54    As explained above, Landcorp held that a ‘state of satisfaction’ by the Minister was a precondition to an exercise of power under s 78 and was thus a jurisdictional fact. However, the ‘significant impact’ determination made under s 75(1) is not a jurisdictional fact for the reasons explained by the Full Court in Anvil Hill. Section 75(1) does not specify a state of satisfaction which the Minister is to attain before performing the duty in s 75(1).

55    The applicants submit that Anvil Hill can be distinguished. The circumstances in Anvil Hill involved the proponent of the proposed action referring the proposed action to the Minister under s 68 of the EPBC Act which, as noted, deals with self-referral by a person proposing to take action. The decision of the Minister’s delegate under s 75(1) of the EPBC Act that the proposed action was a controlled action is what is challenged by the applicants.

56    The applicants contend that there is a clear distinction between the nature of a process commenced by a proponent’s self-referral under s 68 of the EPBC Act and that of a deemed referral decision under s 70(3), where the proponent has not referred the proposed action after being notified to do so by the Minister. The process under s 70(1) of the EPBC Act is commenced when the Minister ‘thinks’ the proposed action ‘may be or is a controlled action’, but may make a deemed referral decision without input from the proponent.

57    It is argued for the applicants that the Minister therefore makes the decision under s 75(1) of the EPBC Act following a deemed referral decision on a distinctly different basis to that applying where a proponent has self-referred under s 68 of the EPBC Act. The applicants contend that the process commenced under s 70 of the EPBC Act leading to a ‘controlled action decision’ under s 75 of the EPBC Act involves different jurisdictional tests, namely, that the proposed action objectively ‘has or will have’ or ‘is likely to have’ a significant impact on a listed threatened species. That assessment in the circumstances of this matter, the applicants say, included a consideration of the referral documentation from which there was no support for the decision reached.

58    The reference in Anvil Hill to a ‘duty’ of the Minister to decide whether a proposed action is a controlled action only arises, the applicants say, where there has been a self-referral under s 68 of the EPBC Act, which obliges the Minister to make a decision and is premised on referral documentation provided by the self-referrer. In the case of a deemed referral decision, the applicants say, the Minister is in fact exercising the power to invoke the controlling provisions of the EPBC Act and the power to make the decision under s 75(1) of the EPBC Act is in furtherance of that decision. The applicants contend these powers are subject to a condition precedent in their exercise, namely, that as a jurisdictional fact the proposed action is likely to have significant impact on a listed threatened species and evidenced by the further requirement for environment advice from its own consultants.

59    The applicants say that the statutory context in Anvil Hill is distinguishable from the considerations in this case. The question as to whether a decision-maker has erred as to a jurisdictional fact has to be answered by the court in which it is litigated upon the evidence before that court: cf City of Enfield (at [22]). In that regard, the evidence of Mr Hick is argued to be relevant and should be admitted and any evidence relied upon by the Department is argued to be insufficient or inadequate to demonstrate a significant impact.

60    In particular, the applicants rely upon the observations of Gilmour J in Landcorp, where his Honour said (at [29]):

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

61    Put another way, the applicants’ contend that the question of whether the Minister can act under s 75 of the EPBC Act in furtherance of the Deemed Referral Decision under s 70(3) of the EPBC Act is subject to the existence of the condition precedent that the Proposed Action is likely to have a significant impact on a listed threatened species. This condition precedent is required to be assessed on an objective basis by the Court considering appropriate evidence.

62    I am unable to accept the distinction the applicants draw as being relevant for the purposes of distinguishing Anvil Hill. In whatever way the requirement to decide arose, the Minister was required under s 75(1) of the EPBC Act in Anvil Hill to decide whether the subject of a Proposed Action was a ‘controlled action’ (amongst other matters). I am unable to accept the applicants’ submission that where the Minister makes a decision under s 75(1) of the EPBC Act following a deemed referral, then the Minister makes the decision on ‘a distinctly different basis’ to when there is a self-referral. This submission is directly contradicted by s 70 of the EPBC Act.

63    Section 70(3) provides that if ss 70(3)(a)-70(3)(c) are satisfied, the Minister may determine in writing that:

this Act has effect as if … if paragraph (1)(a) applies – the requested person had referred the proposal to the Minister under subsection 68(1) at the time the determination was made…

Section 70(1)(a) applied in this case as it was a ‘person’ proposing to take an action rather than a polity mentioned in s 70(1)(b).

64    Section 70(4) then provides that a determination under s 70(3) ‘has effect accordingly’.

65    The application of the EPBC Act to a deemed referral is therefore not ‘distinctly different’, as the applicants contend. Instead, s 70(3) and s 70(4) expressly provide that in the case of a deemed referral, the EPBC Act ‘has effect as if’ the proponent had made the referral. This must include s 75.

66    Furthermore, there is nothing in the reasoning of the Full Court in Anvil Hill to suggest that the proper construction of s 75 of the EPBC Act would differ depending upon whether the proponent actually referred, or was deemed to have referred, a proposed action for assessment. The Full Court’s analysis of the text of s 75 (at [25]-[26]) and its consideration of the context and purpose of s 75 (at [32]-[33]) in no way depends upon whether referral was actual or deemed.

67    The Minister was performing the same statutory function under the same statutory provision as in Anvil Hill. I am bound by the Full Court decision in Anvil Hill which set out an extensive analysis for its reasoning (at [14]-[34]). In particular (at [21]-[22], [25]-[26]), the Full Court said:

21    To constitute a condition precedent, the relevant fact or circumstance must exist independently of, and be objectively determined prior to, the exercise of the power or performance of the duty by the decision-maker. The starting point for ascertaining whether a fact or circumstance is a jurisdictional fact must be the words of the statute, read in their context. Although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as “where ‘x’ exists”, or “when ‘x’ exists” or “if ‘x’ exists”, then a person is empowered or obliged to act or refrain from action. The “x” in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty. In some instances, the fact or circumstance may be subjectively expressed. Examples of this include “where in the opinion of the Minister ‘x’ exists” or, “if in the opinion of the Minister ‘x’ exists” or “when the Minister is satisfied ‘x’ exists”, then the Minister is to exercise the power or perform the duty. Such language often indicates that the Minister must form the necessary opinion as a condition precedent to the power or duty, although the correctness of this opinion, once formed, is not a matter for review by the Court.

22    The High Court considered the question of conditions precedent in Sutherland Shire Council v Finch (1970) 123 CLR 657…

…

25    In the present case, the language of s 75(1) of the Act and the related provisions referred to by the appellant does not require any objective factual determination as a condition precedent to the exercise of the power of the Minister to make a decision under s 75(1). There are no references to expressions such as “Where there is a significant impact, the Minister may …”, or “If there is likely to be a significant impact, the Minister may …” or even “Where there are grounds on which the Minister can consider whether there is likely to be a significant impact, the Minister may …”, each of which may suggest the existence of a condition precedent to the exercise of the power by the Minister.

26    Section 75(1) of the Act imposes a duty on the Minister to decide whether a proposed action is a controlled action. In making this decision, the Minister must take into account the elements of a controlled action as defined by s 67, which in turn involves a determination whether the proposed action would be prohibited by a provision of Pt 3 of the Act, including those provisions which give rise to what the appellant asserts is the condition precedent of s 75(1). The determination of this latter question involves a duty to determine whether there would be a prohibition under Pt 3 of the Act which applies to the proposed action because the action has, will have or is likely to have a significant impact on a relevant aspect of the environment. The duty to make this determination is assigned to the Minister. It is not given to a court or tribunal, and is not expressed as an objective matter. As a result, the performance of this duty is not properly to be regarded as a condition precedent to the exercise of the power in s 75(1).

(Emphasis added.)

68    Contrary to the applicants’ submission, the Court is concerned only with the legality of the decision and whether it is within the authority of the statute, rather than with underlying merits or errors of fact in the decision. The evidence of Mr Hick cannot go to the legality and is not admissible.

CONCLUSION

69    The argument that the Minister lacked jurisdiction because there was not a ‘significant impact’ is quintessentially a merits review. The Court does not have jurisdiction to entertain it.

70    It is clear that the application under the ADJR Act, insofar as it relies upon this ground, must be dismissed. It would appear that as the same ground is relied upon for the first limb of the application under s 39B of the Judiciary Act, that would also be dismissed, but I will hear the parties if there is any argument to the contrary.

Associate:

Dated:    2 September 2019