Federal Court of Australia

Harris v The Honourable Sussan Ley MP, Minister for the Environment [2021] FCA 1621

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Kingvale Station is located near the town of Laura in the central region of the Cape York Peninsula in Far North Queensland. The station is held under a pastoral lease. It has a land area of about 55,000 hectares. It was acquired by the applicant, Mr Scott Alexander Harris as a holding property integral to a wider pastoral and grazing business in Cape York controlled by him.

2    Mr Harris proposes to clear land in the north-east corner of Kingvale Station known as Areas A3, A4, A5 of native vegetation (the proposed action) for high value agriculture (sorghum cropping).

3    On 16 April 2014, Mr Harris was given notice under Queensland’s Sustainable Planning Act 2009 (Qld) (since repealed) that an assessment manager had approved the proposed action, subject to conditions. It is not necessary to detail those conditions.

4    There was a time, and it is within living memory, when the obtaining by a pastoralist or grazier under State legislation of approval to undertake land clearing on a rural property would have been both necessary and sufficient for such work lawfully to proceed. But that was a time prior to the commencement of the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Also these days, the use of pastoral or grazing land may be affected by the Native Title Act 1993 (Cth) but that subject is not presently relevant.

5    One will look in vain at the heads of Commonwealth legislative power set out in s 51 of the Constitution for any reference to “environment protection and biodiversity”. However, the EPBC Act seeks to implement Australia’s responsibilities under a number of international environmental, biodiversity and heritage agreements to which the executive has, or may come to, subscribe. Evidently, in light of the outcome in Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam Case), the EPBC Act has been enacted with the external affairs power found in s 51(xxix) of the Constitution in mind as a source of legislative competence. The EPBC Act is not intended to exclude the operation of State law, save where it manifests a contrary intention. Further, elaborate provision is made in Ch 3 of the EPBC Act for bilateral agreements between the Commonwealth and the several States and self-governing Territories in relation to approvals of proposed actions and for the adoption by the Commonwealth of State or Territory assessments and approvals.

6    It is not necessary, in order to resolve this proceeding, to delve into how it was that Mr Harris came to be enmeshed in a need to secure both State and Commonwealth approvals for the proposed action, only to resolve one controversy that has yielded.

7    On 24 November 2020, the respondent, the Honourable Sussan Ley MP, in her capacity as Minister for the Environment (Minister), decided, pursuant to s 130(1) and s 133 of the EPBC Act, to refuse to approve the proposed action, which was controlled action, as described in a notification of referral under that Act.

8    Mr Harris has sought the judicial review of that decision under either or each of s 5(1) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

9    The validity of the EPBC Act, either generally or in relation to the proposed action, is not an issue in the proceeding.

10    The particular bases of challenge to the Minister’s decision underwent a metamorphosis in the course of oral submissions. As they have come to be identified in Mr Harris’ further amended originating application, the grounds of review are:

(a)    The decision involved an error of law because it was premised upon a determination pursuant to s 18 and s 18A of the EPBC Act that was illogical and/or irrational based upon the evidence before the Minister.

(b)    The Minister took an irrelevant consideration into account in the exercise of the power namely, Mr Harris’ refusal to consent to the imposition of proposed offset conditions, which are alleged to be irrelevant and unlawful to the extent that they extended to matters not permitted by s 134 of the EPBC Act.

11    There is a further allegation that the Minister’s reasons are inadequate but this allegation is really an adjunct to the irrationality or illogicality grounds in that inadequacy of the reasons is said to demonstrate why the decision was irrational or illogical.

12    Before considering the merits of these grounds, it is first necessary to detail the course of Mr Harris’ dealings with the Minister and her department in relation to the proposed action. Therein lies a lengthy saga, noteworthy for lassitude by the Minister and her department in relation to deadlines envisaged by the EPBC Act. The following events in that saga are not controversial.

13    On 8 August 2016, pursuant to a decision made under s 70(3) of the EPBC Act, the proposed action was deemed to be referred to the Minister as if Mr Harris had referred the proposal to the Minister under s 68(1) of the EPBC Act, as at that date.

14    On 21 December 2017, pursuant to s 77 and s 91 of the EPBC Act, a delegate of the Minister gave Mr Harris, inter alia, written notice of, and reasons for, her decision (the 21 December 2017 assessment approach decision):

(a)    pursuant to s 75 of the EPBC Act, that the proposed action, deemed to be referred to the Minister, was a controlled action; and

(b)    pursuant to s 87 of the EPBC Act, that the proposed action would be assessed on referral information.

15    On 26 November 2018, this Court set aside the 21 December 2017 assessment approach decision by consent.

16    On 19 December 2018, pursuant to s 91(1)(a) and s 95 of the EPBC Act, a delegate of the Minister, gave Mr Harris, inter alia:

(a)    pursuant to s 87 of the EPBC Act, written notice of her decision on the assessment approach, namely that the proposed action would be assessed on preliminary documentation, with no further information required;

(b)    pursuant to s 95 of the EPBC Act, a written direction to publish referral information and invitation to comment within a period of not less than 20 days to commence not before 11 January 2019 (Direction).

17    On 23 January 2019, the Applicant complied with the Direction. The period specified in the Direction ended on 22 February 2019.

18    On 5 March 2019, pursuant to s 95B(1) of the EPBC Act, Mr Harris, through his legal representatives, gave the Minister:

(a)    a copy of a document he prepared that:

(i)    set out the information given to the Minister previously in relation to the action, with any changes or additions needed to take account of the comments; and

(ii)    contained a summary of the comments received and how those comments have been addressed; and

(b) a copy of the comments received by Mr Harris within the period for comment.

19    The prescribed date for consequential making of a decision by the Minister was on or about 6 May 2019, being 40 business days commencing on 6 March 2019, excluding the Good Friday, Easter Monday and Anzac Day public holidays.

20    Pursuant to s 95C of the EPBC Act, the Secretary to the Minister’s department is obliged to prepare, and give to the Minister, a recommendation report relating to the controlled action, which must be given after the Minister receives the documents under s 95B(1) of the EPBC Act and before the end of the period applicable under s 130(1B)(c) in relation to the action.

21    The date for the Secretary to give the recommendation report to the Minister was before 6 May 2019.

22    In September 2019, the Minister visited Kingvale Station in order personally to consult with Mr Harris and to gain a better understanding of the locale and proposed action.

23    The recommendation report was given to the Minister on the 31 October 2019.

24    On 31 October 2019, a delegate of the Minister provided Mr Harris with a proposed approval decision and conditions the Minister proposed to attach to the approval, for comment pursuant to s 131AA of the EPBC Act.

25    On the 7 February 2020, Mr Harris instituted proceedings in the Court (QUD 36/2020) in which he sought an order in the nature of a mandamus that the Minister make a decision pursuant to (as he saw it) s 130 of the EPBC Act.

26    Initially, those proceedings were referred to mediation. When they did not resolve at mediation, they were listed for hearing by the Court at Cairns on 27 November 2020 with interlocutory directions adapted to that end made accordingly. The Court’s jurisdiction being national, although usually exercised at Commonwealth Law Courts established in the capital cities, Cairns was identified as the preferable place of hearing, because of the relative ease of access that afforded to Mr Harris from his residence on another pastoral property in Cape York in order to attend proceedings, by comparison with Brisbane. Like considerations attended the fixing of Cairns as the place of hearing for the present application.

27    The hearing date in November 2020 became imminent without any firm indication by the Minister by her legal representatives as to by when her decision might be expected. In light of this and the expense that might be visited on the public purse (via the Court’s budget) and the parties if the issue in the proceeding were rendered academic by a Ministerial decision made either very shortly before the hearing or thereafter but before delivery of judgement, I was persuaded, on 20 November 2020, of a need to make an order requiring the Minister to file and serve, daily, a report as to whether a decision had been made and, if not, by when a decision might be expected.

28    It was in these circumstances that the Minister made the subject refusal decision on 24 November 2020. Mr Harris was notified of this decision by the Minister on 25 November 2020. Later that day, Mr Harris filed a notice of discontinuance in the Court in respect of the then proceeding.

29    On 27 November 2020, pursuant to the ADJR Act, Mr Harris sought from the Minister reasons in writing for the refusal decision.

30    The Minister provided Mr Harris with reasons in writing for her refusal decision on 24 December 2020.

31    I shall now address each of the grounds of review.

The determination of significant impact

32    The Minister’s reasons reveal that her refusal decision ultimately turned on her conclusion (reasons, [48]) that the proposed action “would result in the loss, fragmentation and degradation of suitable habitat for these species, and this would be likely to have a significant impact on those species” pursuant to s 18 and s 18A of the EPBC Act. Those species and their related level of threat in accordance with levels specified in the EPBC Act were (as identified in [46] of the Minister’s reasons):

(a)    the Bare-rumped Sheathtail Bat (Saccolaimus saccolaimus nudicluniatus) – Vulnerable;

(b)    the Northern Quoll (Dasyurus hallucatus) – Endangered;

(c)    the Golden-shouldered Parrot (Psephotus chrysopterygius) – Endangered;

(d)     the Antbed Parrot Moth (Trisyntopa scatophaga) – Endangered; and

(e)    the Red Goshawk (Erythrotriorchis radiatus) – Vulnerable.

33    In conjunction with the impact on threatened species, the Minister addressed other subjects concerning the impact of the proposed action. A brief account of those subjects, derived from the Minister’s reasons and detailing the related provisions of the EPBC Act is set out below.

(a)    the Great Barrier Reef (GBR) World Heritage Area (s 12 and s 15A, EPBC Act)

The Minister concluded at [34] – [35], that the area “proposed to be cleared and subsequently used for cropping and other agricultural activities drains via several watercourses to the Hann and Kennedy rivers, which in turn drain into the GBR World Heritage Area at Princess Charlotte Bay, 200km downstream”. She further concluded that “the proposed action would be likely to result in increased run-off of pollutants into Princess Charlotte Bay. This would adversely affect the water quality in Princess Charlotte Bay, and thereby have a significant impact on the natural heritage of the GBR World Heritage Area.”

(b)    Great Barrier Reef National Heritage Place (s 15B and s 15C, EPBC Act)

The GBR was placed on the National Heritage list in 2007 on the basis that it met the national heritage criteria. The heritage values that caused the GBR to meet those criteria were the same values that caused it to be declared a World Heritage Area. Accordingly, the Minister’s findings about the likely impact of the proposed action on the natural features of the GBR World Heritage Area corresponded with those in respect of the impact of the proposed action on the GBR National Heritage place.

(c)    Great Barrier Reef Marine Park (s 24B and s 24C, EPBC Act)

The GBR Marine Park comprises approximately 98% of the GBR World Heritage Area. Princess Charlotte Bay forms part of the Marine Park. The Minister’s findings about the likely impact of the proposed action on the GBR World Heritage Area corresponded with those in respect of the impact of the proposed action on the GBR Marine Park.

34    In respect of each of these other subjects, the Minister concluded that, in light of her findings about listed threatened species, it was not necessary for her to determine, for the purposes of this refusal decision, the precise, final form of conditions that would need to be attached to any approval to reduce the impacts on the GBR in its various guises. This explains why the Minister’s refusal decision ultimately turned on her conclusion that the “proposed action will have, or is likely to have a significant impact on listed threatened species”, at [46].

35    Paragraphs 48 and 49 of the Minister’s reasons summarise why she concluded that the “proposed action will have, or is likely to have a significant impact on listed threatened species”:

48    I was satisfied that the clearing of 1,846 ha on Kingvale would result in the loss, fragmentation and degradation of suitable habitat for these species, and that this would be likely to have a significant impact on these species.

49    Certainty as to the presence of any listed threatened species on the proposed action area is not an essential precondition for determining that a proposed action is likely to have a significant impact on a listed threatened species. To the contrary, in deciding whether to approve the taking of the action, I was required under s 136(2)(a) to take into account the principles of ecologically sustainable development, which include the precautionary principle: ‘if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’.

36    Against such an analysis of on what the Minister’s refusal decision ultimately turned, the foundational premise of Mr Harris’ irrationality/illogicality ground was that, in order to make that decision, the Minister was required to reach a conclusion that the proposed action will have, or is likely to have, a “significant impact” upon a listed threatened species. In turn, it was submitted that it was incumbent upon the Minister to make a determination under the EPBC which is based on findings or inferences of fact that are grounded upon probative material and logical grounds.

37    So stated, the foundational premise looks to be that determination of whether the proposed action will have, or is likely to have, a “significant impact” upon a listed threatened species was a matter for the Minister’s subjective assessment, rather than a jurisdictional fact amenable to objective determination. However, somewhat inconsistently, with respect, Mr Harris’ submission was that the requirement for the Minister to reach such a conclusion was apparent from s 18 and s 18A of the EPBC Act.

38    There is a common theme in the elements of the prohibitions found in s 18 of the EPBC Act – “has” or is likely to have a significant impact on”, for example, a listed threatened species (s 18(1), EPBC Act). Similarly, there is a common there in the elements of the prohibitions in s 18A, for example, “the action results or will result in a significant impact on … a species” (s 18A(1)(b)(i), EPBC Act). These sections respectively proscribe, under pain of civil penal sanction, the taking of actions with significant impact on listed threatened species or endangered ecological community is prohibited without approval and taking action that results or will result in a significant impact on a threatened species. It is tolerably clear from their text that “significant impact” or as the case may be likelihood is an element of the contraventions for which these sections provide which must be proved as a matter of fact. The prohibitions for which these sections provide operate only where that fact exists, not where the Minister considers that it does.

39    The effect of s 19 of the EPBC Act is that neither s 18 nor s 18A is applicable to an action if an approval of the taking of the action by the person is in operation under Pt 9 of that Act. The approval which the Minister refused to grant Mr Harris was an approval under Pt 9 of the EPBC Act.

40    This case is concerned not with an alleged taking of prohibited action but rather with an assertion that grounds of review or jurisdictional errors as pleaded attended the refusal of the Minister to approve the proposed action. In these circumstances, it is essential to identify exactly to whom for this purpose the EPBC Act consigns the function of determining “significant impact” or likelihood thereof.

41    Within Pt 9 of the EPBC Act, s 130(1) provides:

130    Timing of decision on approval

Basic rule

(1)    The Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.

42    Within s 130(1), “controlling provision” and “controlled action” are each defined terms. “Controlled action” is defined in s 67 of the EPBC Act as an action, the taking of which would be prohibited by a provision of Pt 3 if a relevant approval was not in place under Pt 9. A “controlling provision” is a provision of Pt 3 that would prohibit the action: s 67. Sections 18 and 18A are each provisions of Pt 3. Accordingly, if s 18 or s 18A would prohibit taking an action but for an approval under Pt 9, the action is a controlled action for which s 18 or s 18A is a controlling provision.

43    The “Basic rule” set out in s 130(1) of the EPBC Act is descriptive of a power found in Part 9, rather than a source of the power. The end to which s 130 is directed is the specification of by when a Ministerial approval decision must be made.

44    The better view is that, within Pt 9, the source of a power to grant approval is found in s 133(1), which provides:

Section 133    Grant of Approval

Approval

(1)    After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.

Although s 133(1) is titled “approval”, the exercise of the discretionary power conferred by that subsection extends to “refusal”. This is clear enough from the subsection itself but confirmed by the requirement in s 133(7) for the giving of notice of refusal. The exercise of the power conferred by s 133(1) is pre-conditioned by a number of procedural fairness and consultation requirements found in Pt 9. It is not necessary to detail these. It is also affected by other provisions in Pt 9. Such of these as are relevant to the present application are best highlighted once the riposte made by the Minister to what seemed to be Mr Harris’ foundational premise has been detailed.

45    The Minister’s submission was that it did not follow that whether an action would be prohibited by a Pt 3 provision (such as s 18 or s 18A) – and is therefore a controlled action – is a jurisdictional fact for a decision under s 130(1). While I consider that the better view is that it is s 133(1), rather than s 130(1), of the EPBC Act which is the source of the discretionary approval power, that in no way adversely affects the submission which the Minister advanced. That same submission can be grounded in s 133(1).

46    The Minister submitted, and it may be accepted, that whether a fact is a jurisdictional fact depends on whether, as a matter of statutory construction, the objective existence of that fact is a precondition to the exercise of the relevant power or discretion: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, at 179 – 180, [57] – [58] (French CJ), 194 [107] – [109] (Gummow, Hayne, Crennan and Bell JJ).

47    The Minister further submitted that s 130(1) should not be construed in that way, “because that construction is inconsistent with the terms of s 130(1) when construed in the context of the legislative scheme for the approval process under the EPBC Act”. That submission was developed in the following way.

48    It was put that a decision on whether or not to approve a controlled action under s 130(1) is at the end of a process that commences in Pt 7 of the EPBC Act. The first step in that process is for a proposed action to be referred, or deemed to be referred, to the Minister: s 68. Once a proposed action has been (or is deemed to be) referred, s 75(1) requires the Minister to decide whether the action is a controlled action and which provisions of Pt 3 (if any) are controlling provisions for it (controlled action decision). Pt 7, Div 2 sets out a process for this to occur, including mandatory considerations (s 75(1A), (2)), a process for requesting more information (s 76), and a requirement to give notice of and reasons (on request) for the decision (s 77). There is also a specific power for the Minister to vary, substitute, or revoke a controlled action decision, at any time before a decision is made under s 130(1) (or the action is taken): s 78. The designated proponent (among others) has an express right to request that this power be exercised: s 78A.

49    The Minister submitted that it followed that whether or not a proposed action is a controlled action, and what are the controlling provisions (if any) for that action, is the subject of a separate decision under s 75(1) of the EPBC Act, made prior to the approval process, with its own procedures and power of review. The making of a controlled action decision, and the taking of steps consequent upon the subsequent assessment approach decision (under s 87(1)), enliven the Minister’s power to make a decision under s 130(1). This was said to be confirmed by the “relevant period” for making that decision commencing upon specified steps being carried out pursuant to the assessment approach decision, which in turn depends on the controlled action decision having been made: s 130(1B).

50    The Minister then submitted that, in this case, the controlled action decision had been made on 21 December 2017. She noted that Mr Harris had not sought the judicial review of the controlled action decision, nor had he requested reasons for it. It was put that it was “not open to the Applicant, through a back door and out of time, to seek to review the controlled action decision insofar as it determined that the proposed action was a controlled action with s 18 and s 18A controlling provisions”.

51    The Minister’s submission was that s 130(1) by its terms is not subject to a factual criterion, satisfaction of which is necessary to enliven the power to approve or refuse an approval. It was put that it “merely requires the Minister to make a certain type of decision: whether or not to approve for the purposes of each controlling provision identified in the controlled action decision”.

52    Support by analogy for this submission was said by the Minister to be found in the Full Court’s judgment in Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54 (Anvil Hill). Anvil Hill concerned not the making of a decision under Pt 9 of the EPBC Act as in the present case but rather an anterior, controlled action decision under s 75 within Pt 3 of that Act. A delegate of the Minister had decided under s 75(i) that the project in question was not a controlled action. That meant that the project could proceed without further approval being required under the EPBC Act. The appellant in that case, whose objects included protection of the environment, advanced on judicial review of the Minister’s decision, and pressed on appeal to the Full Court, a contention that the Minister’s decision under s 75(1) as to whether an action was a controlled action involved a jurisdictional fact to be objectively determined, namely, whether the proposed action “has, will have or is likely to have” a significant impact on a matter protected by Pt 3 of the Act. The existence of that fact was said to be a precondition to the Minister’s exercise of discretion under s 75(1).

53    Upholding a like conclusion reached in the original jurisdiction, the Full Court, Anvil Hill, at [26], concluded that s 75(1) imposed a duty on the Minister, not the Court, 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 involved a determination of whether the proposed action would be prohibited by a provision of Pt 3 of the EPBC Act, including those provisions which gave rise to what the appellant asserted was the condition precedent of s 75(1). The Full Court held that the determination of this latter question involved 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 that determination was, the Full Court concluded, neither assigned to the Court nor was it an objective matter. The duty fell to the Minister. The consequence was that the performance of this duty was not properly to be regarded as a condition precedent to the exercise of the power in s 75(1).

54    The Minister submitted that the reasoning in Anvil Hill applied a fortiori to the making of a decision under s 130(1) of the EPBC Act because, within that subsection, “approve, for the purpose of each controlling provision” described “the nature and content of the approval or refusal, rather than a factual precondition” This was said to be consistent with:

(a)    the fact that the operation of the exemption provisions in Pt 3 (relevantly, s 19) depends on there being an approval of the taking of that action for the purposes of the relevant subsection of s 18 or s 18A – that is, an operative approval under Pt 9 is one that addresses each of the provisions found in the controlled action decision to be a controlling provision;

(b)    the fact that the Minister, in making a s 130(1) decision, must have regard to “matters relevant to any matter protected by a provision of Pt 3 that the Minister has decided is a controlling provision for the action” (s 136(1)(a)). This was said to presuppose a prior decision that a provision is a controlling provision for the action, and to be inconsistent with the notion that the proposed action having or being likely to have a significant impact on listed threatened species (or the Minister being satisfied of that) is a factual precondition of the s 130(1) decision; and

(c)    the stages of the decision-making, information gathering and consultation processes set out in the EPBC Act that must precede a s 130(1) decision, each of which is completed in “studied haste”, adopting an observation by Branson and Finn JJ in Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154, at 176 – 177, [84]. It was submitted that this was “not indicative of a s 130(1) decision being subject to an objective assessment or a re-visiting of the factual premises of the controlled action decision”.

55    Further support for such an approach to the construction of the Minister’s approval power was said by the Minister to be found in the reasoning of Cowdroy J in Northern Inland Council for the Environment Inc v Minister for the Environment (2013) 218 FCR 491 (Northern Inland Council), at 511 – 513, [81] – [86], in rejecting a contention that s 139(2) of the EPBC Act was dependent on a jurisdictional fact that a controlled action will have or is likely to have a significant impact on a particular listed threatened ecological community. Subsection 139(2) of the EPBC Act provides:

139    Requirements for decisions about threatened species and endangered communities

…

(2)    If:

(a)    the Minister is considering whether to approve, for the purposes of a subsection of section 18 or section 18A, the taking of an action; and

(b)    the action has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community;

the Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community.

56    The reasoning of Cowdroy J in Northern Inland Council, at [81] – [83] is indeed important for the resolution of the present case. His Honour stated:

81.    As was submitted by the respondents, s 139(2) does not permit the Minister to consider any additional matters to those contained in s 136 in order to determine whether a controlled action has, will have, or is likely to have a significant impact on a listed threatened species so as to require him or her to consider any applicable approved conservation advices. If s 139(2) does depend on a jurisdictional fact, a Court exercising judicial review of the decision would not be so restricted; rather, the Court would consider any admissible evidence: Anvil Hill 166 FCR 54 at [16]; Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2007) 159 LGERA 8; 243 ALR 784, at [66]. Such a result would undermine the manifest intent of s 136 and Subdiv B of the Approval Division; that is to limit and direct the considerations to be taken into account in deciding whether to approve a controlled action.

82.    Secondly, s 130 makes clear that the timing of the Minister’s decision is predominantly a matter for the Minister. …

83.    Accordingly, where a controlled action is the subject of an assessment report under s 87(4) …, the Minister must decide whether or not to approve the action within 30 days. Should the Minister feel that he or she needs more time to consider a project, an unfettered discretion is afforded to the Minister to extend the decision-making period under s 130(1A). This astutely balances the objects of the EPBC Act. The brevity of the 30-day period prescribed by s 130(1B)(a) reflects the “efficient and timely” assessment process which the EPBC Act seeks to establish: s 3(2)(d). On the other hand, one reason why the discretion of the Minister to extend such period is unfettered is presumably to allow the Minister further time to consider potential environmental impacts of a controlled action where necessary. This accords with other objects of the EPBC Act that, stated broadly, concern the protection and conservation of the environment: s 3(1)(a) to (e). Should the question of whether the Minister is required to consider an approved conservation advice under s 139(2) be contingent upon the Court’s subsequent determination of the likelihood of an impact on a threatened species or ecological community, the benefit of an “efficient and timely” assessment process would be unreasonably diminished. It would also result in substantial inconvenience for not only the applicant for the approved action, but also the government and other businesses that will be connected to the relevant project.

57    The submission made and developed by the Minister in relation to the determination of “significant impact” for the purposes of an approval decision should be accepted. As already observed, the Minister’s submission holds good even if, as I consider to be the position, it is s 133(1) which is the source of the Ministerial approval power. If anything, that subsection further strengthens the position for which the Minister contends. In empowering the Minister to approve for the purposes of a controlling provision the taking of the controlled action, s 133(1) proceeds on the basis that the existence of a “controlled action” is a given. And Anvil Hill establishes that the determination of whether a proposed action is “controlled action” is a matter for the Minister (or a delegate), not for the Court. It would be antithetical to that position if, in the context of the judicial review of a decision under s 133(1) to refuse to grant approval, it were possible for the Court to determine whether the proposed action “has or will have, or is likely to have, a significant impact” on, materially, a particular listed threatened species. I am bound by Anvil Hill to conclude that the anterior determination of that question is consigned by s 75 of the EPBC Act to the Minister.

58    The wording of s 139(2)(b) of the EPBC Act is awkward. Read in isolation it looks to be posited on an objective fact. However and with respect, Cowdroy J in Northern Inland Council persuasively demonstrates why, read in context, the issue of whether a proposed action “has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community” is not one which may be revisited on the merits in any challenge to a Ministerial decision made for the purposes of Pt 9.

59    As already mentioned, there is a place for the determination on the merits by an exercise of judicial power of whether an action has or will have a significant impact on a listed threatened species or results or will result in a significant impact on a species. The EPBC Act makes that place a civil penalty proceeding in respect of an alleged contravention of s 18 or, as the case may be s 18A of that Act. If there is no such impact, there is, textually, no such prohibition, irrespective of whether the Minister has or has not given an approval.

60    Perhaps oddly, and only as a matter of initial impression, even if, for the reason given, there is no such prohibition, where there is an approval subject to conditions for the taking of such action a person may yet contravene one or more of the requirements found in Div 2 of Pt 9 by a failure to comply with conditions of that approval. One might have thought that, if the prohibition were not applicable to the taking of an action, compliance or otherwise with any approval would be irrelevant. The intent seems to have been to address the position that, by s 19 an operative approval renders s 18, or, as the case may be s 18A, inapplicable to the taking of the action concerned by penalising a breach of a condition of approval. It may be that that intention has been achieved at the price of additionally subjecting a person who needed no approval in the first place to the prospect of penalisation for breaching a condition of an approval which was not needed but perhaps sought out of an abundance of caution.

61    As it is, in making her refusal decision in the exercise of the power conferred by s 133(1) of the EPBC Act, the Minister made no decision for the purposes of either s 18 or s 18A of that Act. Insofar as she had to form a view about a significant impact or likelihood of the same, she had already done that at the anterior stage of determining that the proposed action was a controlled action. On the face of her reasons, she did so again with the benefit of further information, including, notably, the recommendation report from her department. Her charter for making that decision was laid out in Pt 9, especially in s 136. Amongst other things, s 136 required the Minister to consider that recommendation report.

62    Reading, as one must, the Minister’s reasons fairly and as a whole, it is apparent that the Minister has been persuaded by the recommendation report that impacts there identified and assessed were significant such that the proposed action ought only to be approved subject to identified conditions which addressed that impact. In particular, this is made apparent in [53] to [55]:

53.    On the basis of the Department's advice in the current 2019 recommendation report, I was satisfied that the quality and nature of the habitat that would be lost, and the scale of the clearing to be undertaken, mean that the listed threatened species identified in paragraph 46 above could not be effectively protected, and the impact on those species could not be adequately repaired or mitigated, without the imposition of conditions requiring the management of an ‘offset area’ to provide a commensurate ‘conservation gain’ consistent with the EPBC Act Environmental Offsets Policy (2012) and calculated using the Department's publicly available 'Offsets Assessment Guide'.

54.    The proposed conditions in the recommendation report, which I proposed to attach when I proposed to decide to approve the action on 31 October 2019, included other measures including clearing limits, buffer zones around watercourses or wetlands and the protection of nest sites. These conditions could be attached to any approval without Mr Harris’s consent. The applicable recovery plans also require measures to be taken in relation to particular listed threatened species. While these measures would go some way to reducing the impact on particular listed threatened species, the scale and location of the proposed clearing mean that the proposed action would be likely to have a residual significant impact which could only be addressed by appropriate offset conditions.

55.    I considered that the proposed offset conditions were necessary or convenient to protect, or to repair or mitigate damage to, those listed threatened species referred to in paragraph 46 above, and that the likely adverse impact of this loss of habitat could not be appropriately addressed by other measures.

Some of the conditions considered “necessary or convenient” by the Minister could only be imposed with Mr Harris’ consent. This he was not disposed to give. In these circumstances, the Minister refused to give approval for the proposed action.

63    Section 136 of the EPBC Act also obliged the Minister to consider, amongst other things, “economic and social matters”: s 136(1)(b). It also obliged her to consult with other Ministers having relevant portfolio responsibilities: s 136(2)(f) and s 131 refer. Amongst these were the Minister for Resources, Water and Northern Australia, who described the proposed refusal decision as “disappointing since the project would provide for sustainable economic opportunities, and importantly local employment opportunities, in the North”. The effect of the feedback offered by the Minister for Agriculture, Drought and Emergency Management in respect of the proposed refusal decision was summarised by the Minister’s department for her in this way:

Proposed decision is disappointing as the proponent has good intentions to manage the land appropriately now and for future generations of his family. The Minister noted that significant effort has been undertaken to come to a mutually agreeable solution but ultimately the proposal will not go ahead. He also noted that he struggles to understand the reasons for the refusal. The Minister hopes lessons learned from this experience can aid in streamlining future EPBC Act assessments.

64    The Attorney-General, who had the relevant portfolio responsibility for the Native Title Act, responded that the proposed decision did not raise native title concerns. On the other hand, the Minister for Indigenous Australians, who was also consulted, reported that “comment from the National Indigenous Australians Agency supports the proposed refusal decision and notes that there are unresolved issues relating to the concerns of Traditional Owners raised by the Minister”.

65    None of the views of these other Ministers bound the Minister, one way or the other. That they had to be taken into account highlights the breadth of the multi-factorial value judgement entailed in an approval decision. In the end however, as the Minister’s reasons reveal, it was the recommendation report which was decisive, as was the absence of consent by Mr Harris to proposed conditions.

Illogical or Irrational?

66    The authorities relied upon by Mr Harris in his challenge on the basis of illogicality or irrationality, principally Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), were each cases where the exercise of a statutory power was conditioned upon a state of administrative satisfaction. That reliance made for some confusion, and the lengthy discourse above, given the reference by Mr Harris in submissions to s 18 and s 18A of the EPBC Act, which prohibitions entail not administrative satisfaction as to a fact but the existence of an objective, “significant impact” or likelihood fact. There is thus a certain irony in that the acceptance at the conclusion of that discourse of the construction of s 130 and s 133 for which the Minister contended means that Eshetu and SZMDS are indeed relevant authorities.

67    A difficulty for Mr Harris is that satisfaction as to what is a “significant impact” (or likelihood) and as to what conditions are “necessary or convenient” (s 134) are each, par excellence, a “matter of opinion or policy or taste”. The latter phrase was employed by Gibbs J (as his Honour then was) in Buck v Bavone (1976) 135 CLR 110 (Buck v Bavone) so as to sound a cautionary note in relation to the judicial review of satisfaction based administrative decisions. His Honour stated, at 118 – 119:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

[Emphasis added]

68    In Eshetu, at [137], having set out this passage from Buck v Bavone, Gummow J expanded on why it was difficult for an applicant to succeed in the judicial review of an administrative decision which entailed satisfaction in relation to a “matter of opinion or policy or taste”:

This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

69    Like sentiments to those expressed by Gummow J in Eshetu about the difficulty of challenging on judicial review an expressed satisfaction as to facts in respect of which reasonable minds might reasonably differ are to be found in the course of the discussion by Crennan and Bell JJ in SZMDS, at [131] in relation to judicial review on the basis of illogicality or irrationality:

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

[Emphasis added]

70    In his submissions, Mr Harris was astute to eschew any endeavour just to promote a different view of the facts about “significant impact”. His point was that although the Minister had professed to accept and act on the recommendation report in reaching her conclusions as to “significant impact” and related remedial conditions, when one looked to that recommendation report it contained bald conclusory statements about a significant impact on particular species without exposed reasoning by reference to supporting materials as to why that was so. For this reason, it was submitted, that there was no panacea in the conclusion at [206] of the recommendation report that, “the Department considers that the proposed action is likely to have significant impacts on” listed threatened species including those identified in [46] of the Minister’s reasons.

71    Other criticisms were made of the Minister’s reasons to the end of demonstrating illogicality or irrationality. It was put that, even though the Minister’s department had developed “Significant Impact Guidelines”, it was not evident from the Minister’s reasons that these had been relied upon. Particular criticism was made of the Minister’s significant conclusion in relation to one of the threatened species, the Norther Quoll. It was put that, even if one read that conclusion in conjunction with the related conclusion in [236] of the recommendation report, no logical or rational foundation for the Minister’s significant impact conclusion was revealed. In that paragraph of that report it is stated:

236.    Based on the site specific information available to the Department summarised at paragraph 8 and discussed above, and the species’ known range and preferred habitat as described in SPRAT and in other scientific sources, the Department considers the proposed action is likely to impact the species by removing up to 1,846 ha of suitable foraging habitat and movement habitat for the species, which will:

a.    Reduce the area of occupancy of the species

b.    Interfere with the recovery of the species.

72    The attendant illogicality or irrationality grounded in any reliance upon the conclusion found in this paragraph was, seemingly, the absence of the adjective, “significant”.

73    The Minister’s response to this was that she was entitled to act upon the advice tendered to her by her department, which included as the EPBC Act required, the recommendation report. She further submitted that Mr Harris’ had adopted an unacceptable, piecemeal approach to her reasons and related adoption of the recommendation report when the discharging of the onus of proving illogicality or irrationality required a much more comprehensive engagement with her reasons and, through them with the recommendation report and the related supporting materials.

74    Section 64 of the Constitution authorises, and envisages that, the Governor General in Council will establish departments of State of the Commonwealth and that the Governor General will appoint officers, termed “the Queen’s Ministers of State for the Commonwealth”, to administer them. The Honourable Sussan Ley MP is one such Minister. Section 64 also requires that those Ministers sit in one or the other of the Houses of Parliament.

75    Thus, ever since Federation, our system of national executive government has been premised on the basis that Ministers may permissibly act on the advice of officers of the departments they administer. Even on 1 January 1901 when the Constitution came into force this feature was not an Australian idiosyncrasy. It reflected the Westminster system of government which had by then evolved and developed in the United Kingdom and which was by then also being practised in self-governing Dominions and colonies throughout the then British Empire.

76    These propositions are trite but understanding and applying them is essential to the resolution of this proceeding.

77    Also trite is that so acting does not, on judicial review of a Minister’s decision, absolve that Minister from the invalidation of that decision on the basis of proved jurisdictional error. If, for example and relevantly, in adopting the advice of his or her department, a Minister does no more than adopt advice that is illogical or irrational then so, too, is the Minister’s resultant decision.

78    An important purpose served by s 13 of the ADJR Act, in creating an obligation, on request, to furnish reasons in respect of administrative decisions to which that section applies, is that it facilitates the proof of any such jurisdictional error by exposing the reasoning process. However, reasons so furnished are not to be read narrowly and with an eye attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is important that the familiarity of encounter with that case not diminish the force of the proposition for which it stands and translate into a principled restraint by the judicial branch in judicial review cases in scrutinising any administrator’s reasons, especially those of a Minister. Were it otherwise, the conduct of executive government as envisaged by s 64 of the Constitution would become impossible.

79    With respect and for all his protestations to the contrary, Mr Harris has not shown such restraint in his endeavour to demonstrate illogicality or irrationality on the part of the Minister. The Minister’s reasons confirm that, in making her decision, she adopted the recommendation report. The latter is not a standalone document. It draws together and analyses underlying research and other information concerning, materially, the threatened species identified by the Minister at [46] of her reasons.

80    One way of highlighting the vice in Mr Harris’ submission is just to quote the paragraph in the recommendation report, [237], which immediately follows that offered as an example by Mr Harris, [236]:

237.    The Department’s consideration of the conditions that could be attached to any approval is at paragraph 535 – 584 below. The Department considers that if the action were undertaken in accordance with proposed conditions, this would reduce impacts to the northern quoll to the extent that the impacts would not be unacceptable.

[Emphasis added]

81    Approaching the reading of the Minister’s reasons fairly and as a whole, it is just not possible to read the concluding, emphasised portion of [237] of the adopted, supporting recommendation report as anything other than premised on the identified impacts being “significant”.

82    “Significant” is an adjective which is inherently imprecise in its delineation of the metes and bounds of whatever noun it qualifies. As a matter of ordinary English it means “Sufficiently great or important to be worthy of attention; noteworthy; consequential, influential” (Oxford Dictionary). It is also just not possible to read the adopted recommendation report, in the context of the related supporting materials, as other than supplying a reasoned, logical and rational basis as to why identified impacts are “significant” and, in turn, why particular conditions are “necessary and convenient”. Reading the scientific materials summarised at [47] of the recommendation report and the conditions discussed at [535] to [584] of that report underscores this.

83    It is not for the Court on an application such as this to reach its own conclusion on whether particular impacts are “significant” or whether particular conditions are “necessary and convenient”, only to consider whether an applicant has proved an absence of logicality or irrationality on the part of the Minister in reaching her conclusions.

84    Mr Harris has not done this. It is nothing to the point in this proceeding that he or others may disagree, perhaps emphatically, with the Minister’s conclusions. In theory, it would have been possible for the parliament to make assessment of significance and related determination of whether to grant approvals and, if so, on what conditions subjects for objective determination by an exercise of Commonwealth judicial power. Parliament has chosen to adopt a different process. Mr Harris’ remedy in respect of his dissatisfaction with the outcome and with a related regime that has layered the EPBC Act and the imprecision of its subjective, Ministerial satisfaction based criteria in respect of approvals and conditions over State law in respect of land use management lies in the political arena, not in the courtroom. That, too, is a feature of government as established by the Constitution.

Unlawful proposed conditions?

85    On 31 October 2019, the delegate of the Minister provided Mr Harris with a proposed approval decision and conditions the Minister proposed to attach to the approval. These included conditions which required that:

(a)    Mr Harris engage a suitably qualified and independent expert ecologist to conduct pre-clearance surveys to survey and map the vegetation communities present, and identify, quantify and determine the habitat quality of habitat for listed threatened species, in accordance with the methodology in specified guidelines, or another methodology to be approved by the Department;

(b)    a report be provided to the Department detailing the methodology and results of the pre-clearance surveys;

(c)    Mr Harris offset the loss of habitat for specific listed threatened species and any other listed threatened species potentially occurring in the area of land use change identified by pre-clearance surveys, and submit an Offset Management Plan consistent with the principles of the EPBC Act Environmental Offsets Policy for the Minister’s approval that (among other things):

(i)    describes the management actions that would be implemented to improve the quality of the habitat for listed threatened species in the offset area, and

(ii)    includes a risk analysis of the potential risks to the successful implementation of the offset;

(d)    the offset areas required in the approved offset management plan be legally secured within five years of commencement of the action; and

(e)    the Offset Management Plan be implemented from the date of its approval and for at least a period for which the approval of the action has effect.

86    Mr Harris declined to consent to these conditions. It was these conditions and Mr Harris’ absence of consent to them which led to the refusal decision.

87    Mr Harris submitted that these conditions were “unlawful to the extent that they extended to matters not permitted by s 134 of the EPBC Act to which the applicant could not reasonably provide consent under s 134(3A) of the EPBC Act to permit the conditions to attach to the land, it not being a condition referred to in s 134(3)(aa) where those activities specified by those conditions are not reasonably related to the action”. In effect, his submission was that the conditions had reasonably to relate to the identified significant impacts.

88    One response made by the Minister to this ground of review was that the specification of conditions was not under review because it was a decision separate from the approval decision. That submission is erroneous. It may very well be that the error lies in the misidentification of the source of the Minister’s power as s 130, rather than s 133 of the EPBC Act. Regard to s 133 discloses that one of the matters which must be set out in an approval is “the conditions attached to the approval”: s 133(2)(f). Section 133 contemplates that occasion for an approval may be found in the imposition of conditions absent which approval would not be granted. The imposition of conditions therefore falls for consideration in the context of the approval decision itself.

89    The Minister also submitted that the generality of language in s 134(1) of the EPBC Act was such that it did “not require conditions to be restricted to matters upon which the Minister is satisfied that the action will have or is likely to have a significant impact”. Instead, so the submission went, it is “sufficient that the Minister is satisfied that the condition is necessary or convenient for protecting, repairing or mitigating damage to any matter protected by a provision of Pt 3 for which the approval has effect”. That was said to be because “Matter protected” by a provision of Pt 3 is defined in s 34 of the EPBC Act as being, for s 18 and s 18A, any listed threatened species (other than one in the extinct or conservation dependent categories, to which s 18 and s 18A do not apply in any event). It was put consequentially that, if the controlled action were approved, it would have effect “for the purposes of each controlling provision for a controlled action”: that is, for the purposes of the whole of s 18 and s 18A. Thus, so the Minister’s submission went, the effect of an approval is not limited to particular listed threatened species on which the controlled action might have a significant impact. This was said to be confirmed by s 19(1) of the EPBC Act, which disapplies the civil penalty provisions and offences in s 18 and s 18A “if an approval of the taking of the action by the person is in operation under Part 9”.

90    Subsections 134 provides, materially:

Generally

(1)    The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:

(a)    protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or

(b)    repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage has been, will be or is likely to be caused by the action).

Conditions to protect matters from the approved action

(2)    The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:

(a)    protecting from the action any matter protected by a provision of Part 3 for which the approval has effect; or

(b)    repairing or mitigating damage that may or will be, or has been, caused by the action to any matter protected by a provision of Part 3 for which the approval has effect.

This subsection does not limit subsection (1).

Examples of kinds of conditions that may be attached

(3)    The conditions that may be attached to an approval include:

(aa)    conditions requiring specified activities to be undertaken for:

(i)    protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or

(ii)    repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage may or will be, or has been, caused by the action); and

…

Certain conditions require consent of holder of approval

(3A)    The following kinds of condition cannot be attached to the approval of an action unless the holder of the approval has consented to the attachment of the condition:

(a)    a condition referred to in paragraph (3)(aa), if the activities specified in the condition are not reasonably related to the action; …

91    With respect, the submissions of both Mr Harris and the Minister left a good deal unsaid as to the meaning and effect of the phrase, “necessary or convenient” which appears in s 134 of the EPBC Act.

92    The meaning of the phrase “necessary or convenient” has a lengthy provenance in Australian jurisprudence, in turn reflecting its lengthy employment in parliamentary drafting. The root Australian authority is Carbines v Powell (1925) 36 CLR 88 (Carbines v Powell), where the phrase fell for consideration in the context of a power to make regulations. In that case, Isaacs J, at 91 – 92, accepted that the phrase was “general” but nonetheless did not extend to permitting the Executive to “enlarge legislatively” at discretion a field already delineated by Parliament. To like effect, Rich J, at 96, observed of the phrase, “There is, no doubt, a considerable deal of elasticity in the words ‘necessary or convenient’ on account of the discretion always given to the Executive. But that discretion is limited to carrying out or giving effect to this Act. [The section] does not give carte blanche to enact independent legislation.” Thus, a statutory authority to make regulations “necessary or convenient” for carrying into effect the Act was held not to authorise the prohibition by regulation of the manufacture of wireless receiver transmitters in circumstances where the limit by statute of a prohibition was on the receiving or broadcasting of messages without a licence.

93    In Shanahan v Scott (1957) 96 CLR 245, at 250, Dixon CJ, Williams, Webb and Fullagar JJ summarised the effect of views expressed in Carbines v Powell and later authorities concerning a general power to make regulations which were “necessary or convenient” (or “expedient”) in this way:

The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

94    In the EPBC Act, the Minister’s power to impose conditions in an approval is circumscribed not just by the general purposes of that Act but by the very particular terms of s 134 itself. Thus, Ministerial satisfaction based though it is, in order to impose a condition that satisfaction must, materially, be that the condition is “necessary or convenient” for protecting a matter protected by a provision of Part 3 for which the approval has effect” (emphasis added): s 134(1) and s 134(2). The emphasised subject, “protecting a matter protected by a provision of Part 3” is repeated in 134(2)(a) with the additional qualification, not present in s 134(1) or s 134(3(aa)(i), “from the action”. And a condition referred to in s 134(3)(aa) cannot be attached without the consent of the holder of the approval if the activities specified in the condition are not reasonably related to the action: s 134(3A)(a).

95    It may be accepted that, such is the generality of language in s 134(1)(a) of the EPBC Act, the Minister is indeed authorised to impose a condition on an approval if satisfied the condition is “necessary or convenient” for the purpose of protecting a “matter protected by a provision of Part 3” for which the approval has effect, whether or not the protection is protection from the action for which the approval was sought. But all that does is to direct attention to what is a “matter protected by a provision of Part 3”. The definitions section, s 528, of the EPBC Act instructs that this has the meaning given by s 34. A “matter protected” is one listed in the table which appears in that section. Regard to the items in that table discloses various categories of listed threatened species – “extinct in the wild”, “critically endangered”, “endangered” and “vulnerable”.

96    Presently materially and in the context of s 134(1), and having regard to authorities concerning the meaning of “necessary or convenient”, what is “necessary or convenient” can only be that which is ancillary to the protection of one or more of the categories of listed threatened species. The protection for which Pt 3 of the EPBC Act provides in relation to such threatened species, found in s 18 and s 18A, is not absolute. It is not protection from any impact. The protection is in respect of a “significant impact” or a likely “significant impact”. Nothing in satisfaction as to what is “necessary or convenient” permits the Minister to depart from or vary by a conditioned approval the protection Parliament has ordained in Pt 3. To take up the observation made by Rich J in Carbines v Powell, the Minister is not, by s 134, given “carte blanche to enact independent legislation”.

97    More particularly, and contrary in this respect to the submissions made on her behalf, the Minister’s reasons reveal that her view is that s 134(1) is not the source of the power to impose the controversial conditions. Her view (Reasons, [23]) is that, “These proposed offset conditions could not be attached to an approval without Mr Harris’ consent under s 134(3A)(a) of the EPBC Act.”

98    Thus, the Minister is, necessarily, of the view that it is s 134(3)(aa) of the EPBC Act is the source of the power to impose these “offset conditions” and that they not “reasonably related” to the proposed action; hence the reference to s 134(3A)(a) in her reasons and the apprehended need for Mr Harris’ consent. “Necessary or convenient” is not expressly mentioned in s 134(3)(aa) of the EPBC Act. Yet the Minister has nonetheless stated in her reasons that she considered that the offset conditions were “necessary or convenient”.

99    Paragraph 134(3)(aa) of the EPBC Act is expressed, as with the other paragraphs in that subsection, not to “limit the kinds of conditions that may be attached to an approval”. It is thus not intended to limit that which might lawfully be imposed pursuant to s 134(1), where “necessary or convenient” does appear. The power conferred by s 134(3)(aa) is likewise ancillary in character with respect to the protection of one or more of the categories of listed threatened species. There is thus no error (and none was asserted) in the Minister’s employment of “necessary or convenient” to inform the making of her decision in respect of the imposition of the offset conditions.

100    The Minister’s reasons also reveal ([27]) that her reasons for imposing these offset conditions were that she “considered that to protect, or repair or mitigate damage to listed threatened species, it was necessary to attach conditions to any approval to offset the loss of listed threatened species' habitat from the site of the proposed action”. The Minister is not to be criticised, and jurisdictional error is not to be found, in her use here and in [55] of “damage”, rather than the language of the statute, “impact” in her reasons.

101    The Minister’s reasons ([55]) further reveal that, ultimately, in respect of the listed threatened species identified in [46] as to which she was satisfied that the proposed action was likely to have a significant impact ([48]), she “considered that the proposed offset conditions were necessary or convenient to protect, or to repair or mitigate damage to, those listed threatened species referred to in paragraph 46 above, and that the likely adverse impact of this loss of habitat could not be appropriately addressed by other measures”. Reading the reasons fairly and as a whole, the “damage” and “adverse impact” mentioned in this paragraph are one and the same as the “residual significant impact” referred to in [54] of the Minister’s reasons.

102    At the heart of the Minister’s reasons, grounded in the material before her, is therefore the straightforward, logical proposition that a way of protecting the listed protected species identified in [46] of her reasons from the identified residual significant impact of the proposed action is by “the imposition of conditions requiring the management of an 'offset area' to provide a commensurate ‘conservation gain’ consistent with the EPBC Act” (Reasons, [53]). Such a gain is, undoubtedly, a form of protection for such a species. The Minister has considered it “necessary or convenient” to offset a residual significant impact by a conservation gain. Given their significant impact on threatened species protective focus, the proposed offset conditions do not, in my view, depart from or vary the purpose of Pt 3 of the EPBC Act. They relate to a matter protected by Pt 3. They are truly but ancillary to the statutory protection.

103    Mr Harris was not therefore being asked by the Minister and the officers of her department to consent to conditions which went beyond those which might be imposed.

104    It follows that the other ground upon which the Minister’s decision came to be challenged fails.

105    The application must therefore be dismissed, with costs.

Associate:    

Dated:    21 December 2021