Federal Court of Australia

Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for mention on a date to be fixed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Bob Brown Foundation Inc, seeks judicial review of a decision of a delegate (the Delegate) of the first respondent (the Minister) made on 6 January 2022 that certain design and assessment works proposed to be undertaken by the second respondent (MMG) do not constitute a “controlled action” for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) (the Decision).

2    The proposed works are described in a referral made by MMG pursuant to the provisions of the EPBC Act, namely referral 2021/9079 dated 19 October 2021 (the Referral). In brief outline, the proposed action involves geotechnical works and investigation activities and ancillary activates to enable access (eg, development of tracks and vegetation removal). The geotechnical works and investigation activities are designed to inform the design and assessment of a proposed tailings storage facility (TSF) at South Marionoak, near Rosebery in western Tasmania. The proposed TSF would form part of the MMG Rosebery mine operations and would allow for the management and storage of tailings waste material. It should be noted that the decision that is the subject of the present proceeding concerns preliminary design and assessment works in relation to the TSF and not the actual construction of the TSF, which is the subject of a separate referral.

3    On 6 January 2022, the Delegate decided that the proposed action is not a controlled action provided it is undertaken in the manner set out in the Decision. The Decision was made under ss 75 and 77A of the EPBC Act, which are set out later in these reasons. The notification of the Decision set out certain measures that were required to be taken to avoid significant impacts on listed threatened species and ecological communities These measures specifically related to the following:

(a)    the Tasmanian Wedge-tailed Eagle;

(b)    Tasmanian Forests and Woodlands dominated by black gum or Brookers gum ecological community;

(c)    the Tasmanian Devil; and

(d)    the Scrambling Ground-fern.

4    Of significance for present purposes is the fact that the Decision did not require any specific measures to be taken to protect the Tasmanian Masked Owl, which is a listed threatened species under the EPBC Act. This was in a context where North Barker Ecosystem Services (NBES), consultants engaged by MMG to undertake a flora and fauna habitat assessment, had recommended that certain measures be adopted in relation to the Tasmanian Masked Owl. The report in which that recommendation was contained was before the Delegate at the time of the Decision.

5    The Delegate provided a statement of reasons for the Decision, dated 7 February 2022 (the Statement of Reasons).

6    By its amended originating application for judicial review dated 29 April 2022, the applicant applies to the Court under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the Decision. The applicant relies on three grounds of review, which may be summarised as follows:

(a)    In making the Decision, the Delegate:

(i)    made a decision that was not authorised by the EPBC Act;

(ii)    failed to take a relevant consideration into account in the exercise of the power; and/or

(iii)    erred in law,

in that she failed to comply with her obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making her decision under s 75 of the EPBC Act (ground 1).

(b)    Further or alternatively to ground 1, the exercise of power under s 75 of the EPBC Act by the Delegate was so unreasonable that no reasonable person could have so exercised the power in that:

(i)    there was no basis in the materials before the Delegate upon which she could reasonably conclude that the Tasmanian Masked Owl was not likely to be significantly impacted by the proposed action;

(ii)    further or alternatively, the Delegate failed to apply the precautionary principle in deciding whether the proposed action was likely to have a significant impact on the Tasmanian Masked Owl,

                     (ground 2).

(a)    In the alternative to grounds 1 and 2, in making the Decision, the Delegate erred in law in that the Delegate failed to comply with her obligation under s 77A of the EPBC Act to identify:

(i)    the “component decision”; and

(ii)    the particular manner in which she believed the action would be taken,

(ground 3).

7    Earlier in this proceeding, the applicant applied for an interlocutory injunction. In light of certain undertakings proffered by MMG, I dismissed the application for an interlocutory injunction: Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498.

8    At the hearing of the proceeding, the applicant relied on the following evidence and material:

(a)    annexures RAB-1, RAB-3, RAB-4 and RAB-5 to the affidavit of Roland Browne, a partner of Fitzgerald and Browne, the solicitors for the applicant, dated 13 April 2022;

(b)    an affidavit of Mr Browne dated 20 May 2022;

(c)    a document titled “Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl)”, which was approved by the Minister on 13 July 2010 (the Approved Conservation Advice);

(d)    a document titled “Matters of National Environmental Significance – Significant impact guidelines 1.1 – Environment Protection and Biodiversity Conservation Act 1999”, published by the Department of the Environment of the Australian Government in 2013; and

(e)    a bundle of documents marked “Material relied upon by the Delegate”, comprising Court Book pp 608-3056.

9    The Minister relied on an affidavit of Grace Ng, a lawyer employed by the Australian Government Solicitor, the solicitors acting for the Minister, dated 21 June 2022. This affidavit relates to a request made by the applicant for reconsideration of the Decision, and the process of that reconsideration. As at the time of the hearing, a decision on the reconsideration had not yet been made.

10    MMG relied on an affidavit of Jeffrey Lynn, a partner at Ashurst, the solicitors acting for MMG, dated 9 June 2022. The affidavit annexes an article by David Young, Phil Bell and Nick Mooney titled “Home-range, habitat use and diet of the Tasmanian Masked Owl Tyto novaehollandiae castanops” (2020) 37 Australian Field Ornithology 132. This material was admitted subject to a ‘limited use’ order under s 136 of the Evidence Act 1995 (Cth), that the use of the document is limited to the fact that it contains the statements and opinions that it contains, but not the correctness of those statements and opinions.

11    There was no cross-examination at the hearing.

12    At the hearing, the Minister made submissions to assist the Court consistently with the principles outlined in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

13    For the reasons that follow, I have concluded that ground 1 is established. In these circumstances, it is unnecessary to consider grounds 2 and 3.

Applicable provisions and principles

14    The key legislative provisions for present purposes are as follows.

15    Section 75 of the EPBC Act provides in part:

75    Does the proposed action need approval?

Is the action a controlled action?

(1)    The Minister must decide:

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

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

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

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

Minister must consider public comment

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

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

(b)    within the period specified in the invitation.

Considerations in decision

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

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

(i)    has or will have; or

(ii)    is likely to have;

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

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

(i)    has or will have; or

(ii)    is likely to have;

on the matter protected by each provision of Part 3.

Note:    Impact is defined in section 527E.

16    Sections 77 and 77A provide:

77    Notice and reasons for decision

Giving notice

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

   (a)    give written notice of the decision to:

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

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

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

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

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

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

Notice must identify any applicable controlling provisions

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

Reasons for decision

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

(a)    has been given the notice; and

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

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

77A    Action to be taken in a particular manner

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

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

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

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

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

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

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

Civil penalty:

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

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

17    Section 391(1) and (2) provides:

391    Minister must consider precautionary principle in making decisions

Taking account of precautionary principle

(1)    The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.

Precautionary principle

(2)    The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

It is to be noted that the obligation to take account of the precautionary principle (to the extent this can be done consistently with other provisions) is mandatory.

18    The table in s 391(3) includes a decision made under s 75 as to whether an action is a controlled action.

19    The precautionary principle was the subject of detailed consideration by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 (Telstra). While the judgment in that case concerned different legislation, the precautionary principle was expressed in substantially similar terms as in s 391 of the EPBC Act: see Australian Conservation Foundation Inc v Minister for the Environment (2016) 251 FCR 308 (ACF) at [177] per Griffiths J. In ACF, Griffiths J adopted significant parts of Preston CJ’s analysis of the precautionary principle: see ACF at [177]-[183]. In the present case, each party relied on aspects of the discussion of the precautionary principle in Telstra and no party submitted that Telstra should not be followed. Accordingly, I proceed on the basis that Preston CJ’s discussion of the precautionary principle is equally applicable to the EPBC Act. I note, in particular, the following aspects of Preston CJ’s discussion of the precautionary principle.

20    As stated in Telstra at [128], the application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds:

(a)    a threat of serious or irreversible environment damage; and

(b)    scientific uncertainty as to the environmental damage.

21    The two conditions precedent appear in the above order in the legislation under consideration in Telstra, but appear in the reverse order in s 391(2) of the EPBC Act. Nevertheless, it is convenient to refer to them in the above order, and thus the condition in (a) as the “first condition precedent” and the condition in (b) as the “second condition precedent”, both for consistency of expression with the discussion in Telstra and because this sequencing appears to reflect the logic of the principle.

22    The two conditions precedent are cumulative: Telstra at [128].

23    In relation to the first condition precedent, as stated in Telstra at [129], it is not necessary that serious or irreversible environmental damage has already occurred; it is the threat of such damage that is required. Further, the environmental damage threatened must attain the threshold of being serious or irreversible.

24    The threats that should be addressed “include direct and indirect threats, secondary and long-term threats and the incremental or cumulative impacts of multiple or repeated actions or decision”: Telstra at [130]. Assessing the seriousness or irreversibility of environmental damage involves consideration of many factors, as discussed in Telstra at [131]. The assessment of whether the threats are serious or irreversible will be enhanced by broadening the range of professional expertise consulted and seeking and taking into account the views of relevant stakeholders and right-holders: Telstra at [132].

25    The assessment of the first condition precedent involves ascertaining whether scientifically reasonable scenarios or models of possible harm have been formulated: Telstra at [133]. The threat of environmental damage must be adequately sustained by the scientific evidence: Telstra at [134].

26    Determining the existence of a threat of serious or irreversible environmental damage does not involve, at the stage of assessing the first condition precedent, any evaluation of the scientific uncertainty of the threat: Telstra at [137]. If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate: Telstra at [138]; see also ACF at [182].

27    In relation to the second condition precedent, as stated in Telstra at [140], the uncertainty is as to the nature and scope of the threat of environmental damage. Assessing the degree of scientific uncertainty involves a process of analysis of many factors, and may include the factors set out in Telstra at [141].

28    If both conditions precedent are satisfied, the precautionary principle will be triggered: Telstra at [150].

29    As Preston CJ explained in Telstra at [151], the precautionary principle is designed “to ensure preventative anticipation; to act before scientific certainty of cause and effect is established”. As his Honour explained, “[i]t may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it.”

30    The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness or irreversibility of the threat, and the degree of uncertainty: Telstra at [161].

31    The notion of proportionality is relevant, in the sense that the measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question: Telstra at [166].

32    The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, programme, or project until full scientific certainty is attained: Telstra at [179].

33    In the present case, the parties made submissions about the meaning of the requirement in s 391(1) of the EPBC Act that the Minister “take account” of the precautionary principle in making a decision listed in the table in s 391(3) to the extent he or she can do so consistently with the other provisions of the Act. In my view, the requirement to “take account” in s 391(1) is interchangeable with a requirement that a decision-maker “consider” a particular matter: see Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 at [58]-[61] per Gordon J; He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [53] per Siopis, Kerr and Rangiah JJ. This requires the Minister to consider, at least, whether the first condition precedent is satisfied. The decision-maker must bring an active intellectual process to this matter: see He at [52]-[53]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], [47] per Griffiths, White and Bromwich JJ. If the first condition precedent is not satisfied, it is not necessary to consider the second condition precedent. If the first condition precedent is satisfied, it will be necessary to consider whether the second condition precedent is satisfied. If both conditions precedent are satisfied, this triggers the application of the precautionary principle and the concomitant need to take precautionary measures: Telstra at [128]. As already noted, however, the obligation to take account of the precautionary principle in making a decision listed in the table in s 391(3) is qualified by the words “to the extent he or she can do so consistently with the other provisions of this Act” in s 391(1).

The Decision and Statement of Reasons

34    On 6 January 2022, the Delegate made the Decision, namely that the proposed action set out in the Referral is not a controlled action provided it is undertaken in the manner set out in the Decision. The notification of the Decision set out a series of measures that were required to be taken to avoid significant impacts on certain listed threatened species and ecological communities. The measures related to the listed threatened species and ecological communities set out in the Introduction to these reasons. The measures did not relate specifically to the Tasmanian Masked Owl.

35    The Statement of Reasons is a substantial document, comprising 270 paragraphs. The first part of the document sets out the background. The statement then describes: comments from the public; comments from Commonwealth Ministers; and comments from State/Territory Ministers.

36    Commencing at [33], the Statement of Reasons sets out the Delegate’s findings on material questions of fact. The Delegate made findings in relation to a number of listed threatened species and ecological communities. For example, the Delegate considered the Tasmanian Wedge-tailed Eagle at [51]-[75], concluding that the proposed action is not likely to significantly impact the Tasmanian Wedge-tailed Eagle provided that the action is undertaken in the particular manner specified in the Decision.

37    The section dealing with the Tasmanian Masked Owl is at [177]-[196]. As this part of the Statement of Reasons is critical for present purposes, I set it out in full:

Tasmanian Masked Owl (Tyto novaeholland[i]ae castanops) – vulnerable

177.    I noted that the Tasmanian Masked Owl is a large owl that occurs throughout mainland Tasmania, and that the species inhabits a range of forests and woodlands, generally favouring habitats with a relatively open understorey, and is dependent on large hollow-bearing trees to breed.

178.    The November Flora and Fauna Habitat Assessment details several hollow-bearing trees that may be suitable nesting habitat for Tasmanian Masked Owl have been identified in the proposed action area.

179.    Song meters were used to survey for this species in the proposed action area in September-October 2020 and again in July-September 2021, and Tasmanian Masked Owl vocalisations were detected on 14 and 17 July 2021.

180    I noted that this species is elusive, and that further survey effort would be needed to understand the species’ usage of the site.

181.    A study titled Home-range, habitat use and diet of the Tasmanian Masked Owl Tyto novaehollandiae castanops, published in Australia[n] Field Ornithology in 2020, found that two individuals of this species elsewhere in Tasmania occupied home ranges over 1800 ha, with a core home range of more than 150 ha, indicating that Tasmanian Masked Owl present within the proposed action area would likely utilise habitat in the surrounding landscape as well as the proposed action area.

182.    I noted that that study was conducted in a more fragmented agricultural landscape than the proposed action area.

183.    Based on the information available to me, I considered that the Tasmanian Masked Owl may utilise the site for foraging and for breeding.

184.    The Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl) (2010) details that threats to the Tasmanian Masked Owl include habitat clearing and fragmentation from agriculture, forestry, and residential development, loss of nesting habitat through tree dieback, collision mortality and secondary poisoning.

185.    The Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl) (2010) does not describe important populations for this species.

186.    I considered that the scale of the clearing and wide area across which the impacts are distributed, large home range of this species, and surrounding available habitat meant that vegetation clearance is unlikely to substantially reduce habitat available to the local population, and is therefore unlikely to cause a decrease the size of, or reduce the area of occupancy of, the local population.

187.    I noted that disturbance of an active breeding hollow resulting in a failed breeding attempt may impact the local population of Tasmanian Masked Owl, however, further considered that it is unlikely these impacts will affect the population over the long-term, considering the impact is not persistent and the large areas of similar habitat present in the surrounding landscape that will likely provide similar breeding opportunities.

188.    Further, I noted the likelihood that an active nest within the larger 240 ha site will occur within the 14.83 ha of proposed vegetation clearance is low.

189.    Therefore, on the basis of the information available to me, I considered that significant impact as a result of disturbance to an active breeding hollow is unlikely.

190.    The referral states in undertaking the action, impacts to eucalypt trees >1 m diameter at breast height or trees with hollow entrances >15 cm) must be avoided, including any direct clearing or felling of such trees or their root protection zones, and that no vegetation clearance or ground disturbance will occur within 15 m of a Masked Owl habitat tree.

191.    I considered that this measure will likely be adequate to protect any potential breeding trees.

192.    However, I further considered that the proposed action is unlikely to significantly impact Tasmanian Masked Owl regardless of this measure, and that therefore this measure should not be a requirement.

193.    Public comments cited personal experience that the Tasmanian Masked Owl has been regularly heard in the proposed action area, and that, contrary to the referral documentation, an abundance of suitable prey is present on site.

194.    I have taken account of the fact there is limited information available regarding this species’ usage of the site and have taken a conservative approach to ensure impacts have been appropriately considered.

195.    I noted a document titled Tree Hollows in Tasmania – A Guide prepared by the Tasmanian Forest Practices Authority was submitted attached to a public comment.

196.    In consideration of the nature of the proposed action and its impacts, and the habits of the Tasmanian Masked Owl, the department advised, and I agreed, that a significant impact to the Tasmanian Masked Owl was unlikely.

38    The Delegate set out her conclusion in relation to ss 18 and 18A of the EPBC Act at [216]-[217]. The Delegate concluded that significant impacts on listed threatened species and ecological communities are not likely to occur, provided that the proposed action is undertaken in the particular manner set out in the Decision. (As noted above, these manner requirements related to the listed threatened species and ecological communities identified in the Introduction to these reasons, which did not include the Tasmanian Masked Owl.) The Delegate therefore found that ss 18 and 18A were not controlling provisions for the proposed action.

39    The Delegate referred specifically to the precautionary principle in a section of the Statement of Reasons headed “Other matters for decision making”. The Delegate stated at [260]-[262]:

Precautionary principle

260.    Under sections 3A(b) and 391(2) of the EPBC Act, I must take into account the precautionary principle in making a decision on whether an action was a controlled action.

261.    The precautionary principle provides that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation where there are threats of serious or irreversible environmental damage.

262.    In making my decision I took account of the precautionary principle as required by sections 3A(b) and 391(2) of the EPBC Act.

40    In the concluding section of the Statement of Reasons, the Delegate stated, at [267], that in making her decision she took account of the precautionary principle as required by s 391 of the EPBC Act.

Consideration

Ground 1

41    By ground 1, the applicant contends that the Delegate made a decision that was not authorised by the EPBC Act, failed to take a relevant consideration into account in the exercise of the power, and/or erred in law, in that she failed to comply with her obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making her decision under s 75 of the EPBC Act.

42    The applicant’s submissions in support of this ground include submissions as to the correct construction of the EPBC Act and factual submissions relating to the Delegate’s decision and reasoning in the present case. The applicant’s factual submissions can be summarised as follows. The applicant submits that: the Statement of Reasons reveals that the Delegate did no more than refer to the obligation in s 391 and assert that she had taken the principle into account; the Delegate did not address any of the components of the definition; for example, there is no consideration of the relevant “threat” of environmental damage or if that threat is serious or irreversible; not only is there no consideration of, or engagement with, the content of the definition, the Delegate does not consider any of the material before her which might bear on those matters.

43    The applicant further submits that the Delegate failed to genuinely engage in the process called for by s 391(2). The applicant submits that this is apparent by the Delegate’s failure – evident on the face of the Statement of Reasons, viewed as a whole – to exercise caution (as she was required to do) in determining that the proposed action would not, or was not likely to, significantly impact the Tasmanian Masked Owl. The applicant submits that the Delegate concluded that the Tasmanian Masked Owl was unlikely to be significantly impacted by the proposed action despite: (a) the acknowledged gaps in the information available to the Delegate on the Tasmanian Masked Owl (both in the information produced by the Department, but also because of the fact that NBES’s analysis was incomplete); (b) the detection by NBES of the Tasmanian Masked Owl within the TSF project site; and (c) the fact that the decision materials (i.e. the materials before the Delegate), by the submissions from the applicant, alerted the Delegate to data that indicated a higher abundance of the species within the TSF project site than suggested by NBES’s data. The applicant submits that this is especially apparent in the Delegate’s dismissal of protective measures MMG itself considered appropriate to mitigate against the risk of harm to the Tasmanian Masked Owl (i.e. the measures proposed by NBES in its November 2021 report).

44    MMG’s submissions in relation to ground 1 can be summarised as follows.

45    First, MMG submits that the Delegate did not find that there are threats of serious or irreversible environmental damage with respect to the Tasmanian Masked Owl, with the consequence that the precautionary principle was not triggered. MMG submits that the Delegate noted that, based on the scale, nature and location of the proposed action, and likely habitat present in the area of the proposed action, the Department advised that impacts to the Tasmanian Masked Owl potentially may arise (Statement of Reasons, [50]). MMG submits that, properly construed as a whole, the Statement of Reasons at [177]-[196] reveals that the Delegate made no finding that there was any threat of serious or irreversible damage to the species of Tasmanian Masked Owl that would be caused by the proposed action. MMG submits that this is apparent from the Statement of Reasons as a whole and the Delegate’s conclusion that a significant impact to the Tasmanian Masked Owl was unlikely given the nature of the proposed action and its impacts, and the habits of the Tasmanian Masked Owl.

46    Secondly, MMG submits that, if and to the extent that the precautionary principle was triggered, the Delegate took account of the precautionary principle as required by the EPBC Act. MMG notes that, under s 391(1), the Minister is obliged to take account of the precautionary principle only to the extent that this can be done consistently with the other provisions of the EPBC Act. MMG relies on the observations of Tracey J in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 165 LGERA 203 (Lawyers for Forests) at [36] that the Minister is not obliged to accord pre-eminence to the precautionary principle when making decisions under the EPBC Act, and that, so long as the Minister takes account of the precautionary principle, it is a matter for the Minister to determine what weight is to be accorded to the principle having regard to the range of other considerations which the delegate is also required to take into account. MMG submits that: the Delegate stated at [260]-[262] that she took account of the precautionary principle as required by ss 3A(b) and 391(2) of the EPBC Act; written reasons may, and generally are, to be taken to be a statement of those matters averted to, considered and taken into account (subject to a contrary finding of fact); the reasons of an administrative decision-maker are meant to inform; they are not to be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). MMG submits that, contrary to the applicant’s submissions, the Delegate did bring an active intellectual process to the relevant matters; the Delegate addressed the components of the definition of the precautionary principle (see [183], [184], [186], [187], [194]).

47    The Minister’s submissions in relation to ground 1 were confined to the construction of the precautionary principle. The Minister did not make submissions as to the factual question of whether or not the Delegate complied with the obligation in s 391(1) to take account of the precautionary principle in making the decision under s 75.

48    In my view, it is apparent from the Statement of Reasons that the Delegate did not comply with the obligation in s 391(1) to take account of the precautionary principle. As set out above, to comply with this obligation, it is necessary for the Minister (or, in this case, the Delegate) to consider, at least, whether the first condition precedent (namely, if there are threats of serious or irreversible environmental damage) is satisfied. This requires the decision-maker to bring an active intellectual process to this matter. Having reviewed the section of the Statement of Reasons dealing with the Tasmanian Masked Owl (being [177]-[196]), and the Statement of Reasons as a whole, I am satisfied that the Delegate failed to do this. The Delegate did not expressly refer to the first condition precedent in the section of the reasons dealing with the Tasmanian Masked Owl. Nor did the Delegate make a finding in terms that correspond to the first condition precedent. While the Delegate, at [184], identified a number of “threats” to the Tasmanian Masked Owl (by reference to the Approved Conservation Advice), the Delegate did not go on to discuss, or make a finding as to, whether those threats, or the threats posed by the proposed action, were serious or irreversible. In the absence of any discussion or finding about this matter, I infer that the Delegate failed to consider it.

49    I note that at [186]-[189] the Delegate made a number of findings about the impact of the proposed action on the Tasmanian Masked Owl. These findings perhaps suggest that the threats posed to the Tasmanian Masked Owl were not serious or irreversible. However, in the absence of any reference in these paragraphs to the first condition precedent, or to whether the threats were serious or irreversible, I infer that this was not considered. Rather, what seems to have happened is that the Delegate jumped straight to the question of whether the proposed action would have a significant impact on the Tasmanian Masked Owl (as indicated by the reference to “significant impact” in [189]). However, it was necessary for the Delegate first to consider whether there were “threats of serious or irreversible environmental damage”, being the first condition precedent to the application of the precautionary principle. It appears to me that the Delegate did not do so.

50    In the course of submissions for MMG, some reliance was placed on the judgment of Griffiths J in ACF at [184]. In that paragraph, his Honour referred to the fact that the Minister “made no finding that there was any threat of serious or irreversible damage to the [Great Barrier] Reef which would be caused by the combustion emissions”. In these circumstances, his Honour held that an essential precondition to the application of the precautionary principle did not exist, and that no error had been shown in the Minister’s decision. This paragraph might support an argument in the present case that, in the absence of a finding that the first condition precedent was satisfied, the precautionary principle was not triggered and no error is established. If and to the extent that MMG makes such a submission, I do not accept it. First, there are material differences between the Minister’s reasons for decision in ACF and those in the present case. In ACF, at least in relation to “scope 1” and “scope 2” emissions, the Minister did expressly consider the first condition precedent to the application of the precautionary principle: see ACF at [59]. In relation to the “combustion emissions”, which were the subject of the relevant ground of review (ground 3), although the Minister did not expressly refer to the first condition precedent, the Minister made detailed findings of fact at [138]-[141] of those reasons (set out in ACF at [58]). These findings were referred to by Griffiths J at [184] of ACF. Secondly, in light of those aspects of the Minister’s reasons for decision in ACF, there does not appear to have been the same basis to suggest that the Minister failed to consider the first condition precedent to the application of the precautionary principle. Thirdly, the reasons of Griffiths J at [184] were not addressed to a contention that the Minister had failed to consider the first condition precedent. Thus, although Griffiths J referred at [184] to the absence of a finding that there were threats of serious or irreversible damage to the Great Barrier Reef which would be caused by the combustion emissions, I do not consider there to be any inconsistency with the approach I have taken above.

51    I note also that in Lawyers for Forests at [41], Tracey J referred to the fact that the Minister “made no express finding” to the effect that there was a threat of serious or irreversible damage. However, this statement needs to be read in the context of the judgment as a whole. The essential basis of decision was that the Minister had applied the precautionary principle: see at [36], [38], [39]-[40]. The statements at [41] were additional observations that were not necessary for the decision in the case.

52    If and to the extent that MMG submits that the Delegate did, in any event, apply the precautionary principle in respect of the Tasmanian Masked Owl, I do not accept that submission. The section of the Statement of Reasons dealing with the Tasmanian Masked Owl does not refer to the precautionary principle. It is difficult to accept that the Delegate did in fact apply the precautionary principle in circumstances where the consultants engaged by MMG – NBES – recommended that certain measures be taken to protect the Tasmanian Masked Owl, but the Delegate did not require the proposed action to be undertaken in accordance with those measures. Thus, while it is true that the Delegate stated at the end of the Statement of Reasons (at [262] and [267]) that she had taken account of the precautionary principle, I do not accept that the precautionary principle was applied in the case of the Tasmanian Masked Owl.

53    The obligation to take account of the precautionary principle in making a decision listed in the table in s 391(3) (to the extent this can be done consistently with the other provisions in the Act) is an important obligation that requires active intellectual engagement with, at least, the first condition precedent to the application of the principle. In the circumstances of this case, for the reasons given, I am satisfied that that did not take place in relation to the Tasmanian Masked Owl.

54    For these reasons, I conclude that ground 1 is made out.

Grounds 2 and 3

55    In these circumstances, it is not necessary to consider grounds 2 and 3.

Conclusion

56    As discussed at the hearing, I will give the parties the opportunity to make submissions as to the appropriate orders, having regard to the fact that a reconsideration process is currently underway.

Associate:

Dated:    26 July 2022