Federal Court of Australia

Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 5 August 2022 be dismissed.

2.    Costs of and incidental to the interlocutory application be reserved.

3.    There be a first case management hearing in the proceeding 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

COLVIN J:

1    The Commissioner for Main Roads in Western Australia is proposing to construct and operate a 10 km section of freeway near Bunbury, a city to the south of Perth in Western Australia. The proposed freeway works include the clearing of habitat for the Western Ringtail Possum, which is listed as critically endangered, and the Black Cockatoo and the Black-strip Minnow both of which are listed as endangered.

2    Section 18 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (Protection Act) prohibits a person from taking action that will have a significant impact upon a listed threatened species including those in the critically endangered or endangered category. Section 18A creates strict liability criminal offences for persons engaging in such action. The Protection Act then provides that the relevant provisions of s 18 and s 18A do not apply to an action 'if an approval of the taking of the action by the person is in operation under Part 6': s 19.

3    The Commissioner sought and obtained an approval under the Protection Act (Approval). It was given by a delegate of the responsible Minister. It was expressed to be subject to a number of conditions. They included conditions that required the Commissioner to submit certain plans to the Minister for approval, namely a fauna management plan, a habitat fragmentation plan and a vegetation management plan. The Approval specified the matters to be addressed by each plan. In respect of each plan, there is a condition to the effect that the Commissioner must not commence the freeway works unless the Minister has approved the plan in writing (and also that the Commissioner must implement the approved plan).

4    The Commissioner submitted plans for approval. The plans were approved by a delegate of the Minister on 28 July 2022. The delegate who approved the plans was not the same delegate who gave the Approval in respect of the proposed action, namely the construction and operation of the freeway section. The Commissioner commenced work on the freeway section. An interim injunction restraining the continuation of the work was granted on 5 August 2022. The injunction was obtained on the application of Friends of the Gelorup Corridor Inc (FOGC), a community based, non-profit association run by volunteers.

5    FOGC sought an extension of the injunction and an early hearing of the case. After an urgent hearing, I determined that the application for injunctive relief should be refused. These are my reasons for that decision.

The claims made by FOGC to support the application

6    At the hearing, four claims were advanced to support the application for an interlocutory injunction. In essence, they were as follows:

(1)    Although s 134(1)(e) of the Protection Act provides for a condition which may take the form of requiring an action management plan to be submitted to the Minister for approval at a later time, it required an election to have been made by the Commissioner before the approval to accept such a condition and there had been no such election.

(2)    The conditions requiring the approval of the plans were beyond power in that they deferred all or part of the substantive evaluative task required to be undertaken in deciding whether to approve the freeway works to the later stage of considering the plans at which time material aspects of the statutory scheme for approval did not apply.

(3)    The approval of the plans was undertaken by a delegate of the Minister who had not been delegated the authority to approve the plans.

(4)    The decision to give the Approval and the decision to approve the plans were undertaken by different people which was not permissible given the nature of the evaluative task required by the conditions concerning the plans.

Relevant aspects of the legislative scheme

7    The legislation proscribes a detailed process. First, the Protection Act defines the concept of a 'controlled action': s 67. A controlled action is an action that a person proposes to take that would be prohibited under the Protection Act if undertaken without an approval. If a person thinks that a proposed action may be a controlled action (or that it is not a controlled action) then the person must refer the proposal to the Minister who then decides whether the proposed action is a controlled action. It may be noted that the focus is upon the action which is proposed to be undertaken and whether the action would be prohibited if not approved. It entrusts to the Minister the task of evaluating whether a proposal to take action is a controlled action.

8    The Minister must then invite comment from any other Minister with administrative responsibilities relating to the proposal and from the public: s 74. There are also particular circumstances in which comment must be invited from the Australian Heritage Council or the Minister of a State or Territory. The Minister must then make a decision as to whether the proposed action is a controlled action and must comply with certain statutory requirements as to how that decision is to be made: s 75. There is a statutory procedure for reconsideration of such decisions: s 78.

9    If the Minister decides that an action is a controlled action then there is a detailed procedure to be followed to consider the 'relevant impacts' of the proposed action: see Part 8. The Minister must decide the assessment approach to be used to assess those relevant impacts: s 87(1). In the present case, the assessment approach adopted was assessment on preliminary documentation. According to that approach, after the end of a period for comment and the provision of an information document by the proponent (s 95B), a recommendation report was required to be prepared by the Secretary and given to the Minister. The recommendation report was required to include a recommendation on whether the taking of the proposed action should be approved and any conditions that should be attached: s 95C.

10    Where the assessment is undertaken on preliminary documentation, the Minister has 40 business days from the receipt of the information document to decide whether or not to approve the taking of the action: s 130.

11    An approval must be in writing and must specify the action, the person to whom the approval is granted, the prohibition in Part 3 in respect of which the approval has effect, the period for the approval and the conditions that attach to the approval: s 133(2).

12    Section 136 specifies in some detail matters to be taken into account and matters that the Minister is not to consider when deciding whether to grant an approval and what conditions to attach to the approval.

13    As to the conditions of an approval, s 134(1) provides:

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).

14    There is a further provision in s 134(2) to similar effect that provides that the Minister may attach conditions to protect from the approved action or repair or mitigate damage protected by a provision of Part 3 for which the approval has effect.

15    Then, s 134(3) lists conditions that may be attached to an approval. The list is not exhaustive. So much is clear from the final sentence of s 134(3) which says: 'This subsection does not limit the kinds of conditions that may be attached to an approval'. Therefore, it is the general language of s 134(1) and (2) that proscribes the nature and extent of conditions that may be attached to an approval.

16    Of particular significance in the present case is s 134(3)(e) which provides that 'if an election has been made, or is taken to have been made, under section 132B in respect of the approval' then a condition may be attached to an approval which requires:

(i)    an action management plan to be submitted to the Minister for approval, accompanied by the fee (if any) prescribed by the regulations; and

(ii)    implementation of the plan so approved;

As has been explained, FOGC claimed that a condition that required an action management plan to be submitted to the Minister for approval could only be attached to the Approval if there had been such an election before the Approval was granted.

17    As to election, s 132B(1) provides that a person proposing to take an action 'may, at any time before an approval of the taking of the action is granted under section 133, elect to submit an action management plan for approval'. Then s 132B(2) provides that such an election must be in writing and given to the Minister before the grant of an approval under s 133. As to the possibility of a person being taken to have made an election, s 143(1A) provides that a holder of an approval who agrees, after an approval has been granted, to the addition of a condition that requires an action management plan to be approved by the Minister is taken to have made an election under s 132B before the approval was granted.

18    There are other provisions that deal with action management plans. Section 134A(1) provides that before approving an action management plan the Minister may publish the plan and invite written comments on the plan. It may be noted that it does not impose an obligation to invite comments. In this respect that position is different to earlier aspects of the process where the Protection Act requires an opportunity for public comment.

19    Section 143A provides that '[i]f an action management plan is a condition of an approval' then the holder of the approval may apply to the Minister to vary the action management plan.

20    The term 'action management plan' is defined, in relation to an action, to mean 'a plan for managing the impacts of the action on a matter protected by a provision of Part 3, such as a plan for conserving habitat of a species'.

Statutory power to grant injunction

21    If any of the claims made by FOGC are upheld then the Approval is not valid. If there is no approval then the action that the Commissioner has commenced undertaking in carrying out the works on the freeway section will constitute an offence or contravention of the Act. Section 475 confers an express statutory jurisdiction upon this Court to grant injunctive relief to restrain conduct constituting an offence or contravention of the Protection Act upon the application of an interested person. Further, there is express power to grant interim relief pending the determination of an application for injunctive relief under the provision: s 475(5). The provision specifies those organisations that are interested persons. There was evidence on the application to support a claim that FOGC was such an organisation and there was no submission to the contrary.

General principles concerning the grant of interlocutory injunctive relief

22    I gratefully adopt the summary of the general principles that are applicable to the grant of interlocutory injunctive relief as set out by Jackson J in Frigger v Trenfield [2019] FCA 1746 at [6]. Save possibly for an issue concerning the need for an undertaking as to damages that was financially meaningful (as to which, see below), the parties proceeded on the basis that the general principles as to applications for interlocutory injunctions were applicable. A similar approach was adopted before Moshinsky J in Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498. His Honour there summarised the ordinary principles. Of particular relevance to the present case is the following statement at [44]:

The strength of the applicant's case is not considered in isolation from the balance of convenience … . In considering where the lower risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant's case and their chances of success may be a relevant matter when assessing the balance of convenience.

The precise nature of the relevant conditions

23    The submissions for FOGC were developed principally by reference to conditions 8 and 9 of the Approval which were expressed in the following terms:

Management Plans

Matters of National Environmental Significance (MNES) Fauna Management Plan

8.    The approval holder must submit a MNES Fauna Management Plan to the Department for the Minister's approval. The MNES Fauna Management Plan must specify, to the Minister's satisfaction, measures to avoid, mitigate and manage impacts of the action on listed threatened species during clearance, construction and operation and be consistent with the Environmental Management Plan Guidelines. The MNES Fauna Management Plan must:

a.    be prepared by a suitably qualified ecologist

b.    specify the low risk clearing timeframe for Western Ringtail Possum applicable to clearing in Western Ringtail Possum Habitat

c.    specify Western Ringtail Possum receival sites adjacent the areas to be cleared into which resident Western Ringtail Possum displaced by clearing can be safely relocated and which have capacity for them to survive

d.    specify clearing protocols to be implemented prior to clearing and daily during construction including:

i.    passive relocation management actions to be implemented prior to and during clearing that ensures Western Ringtail Possum can freely and safely move from locations of clearing and into adjacent clearing exclusion areas and receival sites

ii.    ensures any tree occupied by Western Ringtail Possum within the area being cleared is not disturbed for 48 hours or until a fauna-spotter catcher has confirmed that the animal has vacated the tree.

e.    specify monitoring that includes a baseline survey, based on advice of DBCA, to be undertaken within 30 days prior to clearing (or if clearing is to be staged, prior to each clearing stage) to determine the number of Western Ringtail Possum individuals present within the proposal area and at receival sites

f.    detail measures that will be undertaken in the proposal area to avoid, mitigate and manage impacts to protected matters and their habitat during clearance, construction and operation, including but not limited to:

i.    ensuring there is no mortality or injury of Black Cockatoos and Western Ringtail Possum as a result of clearing or construction

ii.    completing within 5 business days prior to clearing (or if clearing is staged, prior to each clearing stage) a pre-clearance survey to confirm the number of Western Ringtail Possum and Black Cockatoo within the areas to be cleared

iii.    ensuring that clearing and any movement and/or disturbance of clearing stockpiles is restricted to daylight hours

iv.    ensuring that a fauna spotter-catcher is present during all clearing, with the authority to cease clearing if the fauna spotter-catcher considers that one or more listed threatened species may be injured or killed.

g.    specify monitoring that records whether any listed threatened species is encountered during clearing, and reports to the Department within 20 business days after clearing (or each clearing stage) on the number of Western Ringtail Possum in the proposal area and at receival sites

h.    require evaluation of the suitability, adequacy and effectiveness of passive relocation management actions at reducing impacts to Western Ringtail Possum individuals displaced by clearing from Western Ringtail Possum habitat

i.    require evaluation of impacts to resident Western Ringtail Possum individuals at receival sites after clearing

j.    use monitoring methods including, but not limited to, radio telemetry with robust sample sizes (the minimum number of tagged animals to be determined in consultation with DBCA)

k.    identify and spatially define the study area(s) and reference sites proposed for monitoring and evaluation and provide rationale for the selection of these sites

l.    specify management actions; management targets; monitoring locations, methodologies, indicators and timing; and actions and investigations in the event of any failure to meet a management target

m.    specify measures to reduce, to below baseline survey levels, the number and prevalence of weeds and feral animals recognised as threats to Black Cockatoos and Western Ringtail Possum

n.    specify monitoring capable of detecting, within 24 hours, any reduction in habitat quality for Black-stripe Minnow habitat outside of the proposal area resulting from any clearing and construction.

9.    The approval holder must not commence the action unless the Minister has approved the MNES Fauna Management Plan in writing. The approval holder must implement the approved MNES Fauna Management Plan from the date of its approval until the completion of the action.

(original emphasis)

24    The Approval also had other conditions which followed a similar form which required the approval of a habitat fragmentation plan and a vegetation management plan. There was no suggestion that any claim depended upon the particular terms of the conditions relating to these other plans. However, there was a submission to the effect that the extent of the matters to be addressed by all three plans was relevant to a claim to the effect that the consideration whether to approve the controlled action comprising the proposed freeway works had been split between approval on the conditions that required the subsequent approval by the Minister of the plans (on the one hand) and the later evaluation required by those conditions as to whether to approve the plans (on the other hand) and that too much had been deferred to the point when the plans would be considered pursuant to the conditions.

Contention (1): Alleged failure by Commissioner to elect in writing to accept conditions requiring action management plans to be approved by the Minister

25    The first contention advanced by FOGC depended upon the merits of two propositions. First, the conditions requiring the submission of plans for approval could only be attached to the Approval if, before the Approval was issued, the Commissioner elected to submit an action management plan for later approval. Second, there was no evidence of such an election being made in writing given to the Minister before the Approval.

26    As to the first proposition, it was submitted that the express terms of s 134(3)(e) manifested an intention that it was only where the requisite election had been made that the Minister was authorised to impose a condition requiring an action management plan to be submitted for approval. Reliance was placed upon what was submitted to be the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1. In that case Gavan Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

27    Though expressed in terms that might be described as a statement of principle, it is a principle that must submit to the modern approach to statutory construction with its focus upon the text of the particular statute whilst at the same time having regard to its context and purpose.

28    When regard is had to context, this is not a case where the terms of s 134(3)(e) manifest an intention to state exhaustively the circumstances in which a condition may be imposed which takes the form of requiring an action management plan to be provided for subsequent approval. Section 134(3)(e) is included within a provision that provides immediate context that firmly indicates it was not intended to have that character for three reasons. First, s 134(3) is preceded by provisions that state the extent of the Minister's power to attach a condition to the approval of an action by reference to what is 'necessary or convenient' for achieving certain specified outcomes. There is no suggestion by the language used that the extent of the power thereby conferred is somehow qualified by what follows. Second, the opening words to s 134(3) are: 'The conditions that may be attached to an approval include'. The sub-section then sets out a list. Plainly, these words manifest an intention that the list which includes s 134(3)(e) is not exhaustive. Third, as has been noted, s 134(3) concludes by saying that the sub-section does not limit the kinds of conditions that may be attached to an approval.

29    In addition, the terms of s 134(3)(e) were amended after the decision in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301. In that case, the Court was concerned with an approval given under the Protection Act that was subject to conditions that required, amongst other things, the subsequent approval of various plans to be submitted by the party who was granted the approval. The Court considered a submission to the effect that conditions of that kind (together with other conditions) were invalid because they constituted an extensive purported use of conditions 'to define, assess and mitigate impacts of the proposal later': at [144]. In a detailed consideration of the authorities concerned with conditions attaching to approvals, the Court found that such conditions were within power. As appears at [186], at that time, s 134(3)(e) provided (including the chapeau):

The conditions that may be attached to an approval include … conditions requiring the preparation, submission for approval by the Minister, and implementation of a plan for managing the impacts of the approved action on a matter protected by a provision of Part 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community …

The language at the end of the sub-section to the effect that it does not limit the kinds of conditions that may be attached to an approval was also present.

30    As to the terms in which s 134(3)(e) was expressed, their Honours concluded at [188]:

It may be seen that by s 134(3)(e) conditions of the type that involve some retention of flexibility in relation to continuing decision-making in relation to the implementation of an activity, are expressly authorised. But, as noted, any condition relying on subs (3)(e) must meet the character of conditions requiring the preparation, submission for approval by the Minister and implementation of a plan for managing the impacts of the approved action on a matter protected by a provision of Pt 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community. However, the final phrase in subs (3)(e), 'such as a plan for conserving habitat of a species or ecological community', should be understood as providing merely an example of and not limiting the type of conditions that may be imposed under subs (3)(e), if they otherwise meet the primary requirements of such conditions.

(emphasis added)

31    Then, at [204], their Honours said:

In general terms, the environmental protection management program envisaged and required by conditions 4, 5 and 7 fall within the statutory language of s 134(3)(e) of a 'plan for managing the impacts of the approved action on a matter protected by a provision of Part 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community'. The fact that there is an apparent lack of specificity about what must be done when the condition is imposed does not make the approval uncertain, especially in the circumstances where s 134(3)(e) authorises such a condition. The program will, when approved, manage the potential impacts identified.

32    As to the required environmental protection management program and a separate condition that required a regional groundwater monitoring and managing program, the Court said that in each case the management program 'is no doubt complex and extensive' but found nevertheless that it was supported by s 134(3)(e): at [214]. In that context, no reason was advanced as to why the amendment to s 134(3)(e) was intended to alter the legislative scheme in a way that would confine conditions requiring action management plans to instances where there had been an election to submit to such a condition before the approval was granted.

33    The current form of s 134(3)(e) was introduced as part of a number of amendments effected by the Environmental Protection and Biodiversity Conservation Amendment (Cost Recovery) Act 2014 (Cth). The Explanatory Memorandum for the Bill to introduce the amending act referred to the Protection Act as the EPBC Act and said (relevantly for present purposes):

The purpose of the Bill is to allow for cost recovery for environmental impact assessments, including strategic assessments, under the EPBC Act, consistent with the Australian Government Cost Recovery Guidelines … The Bill will also allow the Regulations to specify administrative requirements for applications, processes for payment, and for refunds, exemptions and waivers.

The Bill also allows for cost recovery for the assessment and approval of action management plans submitted after the Minister has granted an approval under the EPBC Act, and for the variation of those plans. The Bill achieves this by allowing a person to elect to submit a management plan for approval after the decision is made approving the action. The Regulations can then specify that a fee can be charged for the assessment and approval of the plan when it is submitted.

Action management plans are plans for managing the impacts of the action on a matter protected by a provision of Part 3 of the EPBC Act, such as a plan for conserving habitat of a species. The preparation of and approval of action management plans by the Minister is a common requirement of conditions of approval under the EPBC Act. Action management plans allow the Minister to have ongoing oversight of an action, and more flexibility to specify required environmental outcomes or management strategies as more data becomes available or new technologies develop for environmental management. By setting out a formal process for developing, submitting and varying action management plans, the amendments allow for cost recovery for activities associated with approving these plans.

34    The above purpose is manifested by the terms of s 134(3)(e) and other amendments made at the time. They make clear that conditions can be imposed that will give rise to an obligation to pay a further fee for assessment of an action management plan. There is no suggestion that such conditions could not be imposed in other circumstances (where, by reason of an absence of any election, a fee could not be charged for subsequent evaluation of the plan). No plausible explanation was advanced as to why a condition requiring an approved action management plan might only be appropriate where the proponent had elected to submit to such a condition.

35    Significantly, the explanatory memorandum identifies action management plans as a common requirement of approvals. Therefore, there are considerable contextual obstacles in the way of the claim that the amendment was intended to confine the power to impose conditions so that a requirement for an action management plan to be provided and approved could only be attached as a condition of an approval if an election had been made by the party seeking the approval.

36    In any event, even if the contention to that effect was to be accepted, for the following reasons the evidence provides strong support for a conclusion that there was an election by the Commissioner in the present case.

37    Before the Approval was granted, an assistant director of the Minister's department sent a copy of the proposed conditions to an employee of the Commissioner under cover of an email dated 21 June 2022. The email said that the proposed conditions had been updated in response to comments and further consultation. It then said:

It is important that Main Roads, as the … person proposing the action, and designated proponent for the proposed action, carefully review the attached proposed conditions.

To enable the final decision on the project to be made within a timely manner, we request that you provide the Department with written confirmation of your agreement and acceptance of the proposed conditions via return email …

38    The enclosed draft conditions were substantially in the terms of the conditions to the Approval as subsequently granted.

39    An email response was sent from a manager within Main Roads which said:

While Main Roads has identified a number of minor concerns, given the very urgent nature of this approval and that none of the concerns will delay the commencement of the proposal, we accept these conditions.

40    After the Approval was given, the Commissioner submitted plans for approval and paid the fees required for their consideration as prescribed.

41    On the basis of that evidence it may be concluded that for the purposes of s 132B that an election was made in writing which was given to the Minister before the grant of the Approval. The contention to the contrary could only succeed if a highly technical approach was adopted to what was required by s 132B.

42    Finally, FOGC did not accept that the plans required by the conditions to the Approval to be submitted to the Minister for approval were action management plans. However, the submission was not developed in any significant respect beyond matters that were advanced to support contention (2) (addressed separately below). Having regard to the broad terms of the definition of the term action management plan and the matters that the Approval required each of the plans to address, no arguable case was advanced to support a conclusion that some aspect of what were required by the plans might support the conclusion that they are not action management plans for the purposes of the Protection Act.

43    For those reasons, I concluded that contention (1) had little merit.

Contention (2): Alleged deferral of the substantive evaluative task

44    There were also two propositions advanced to support contention (2). The first was a claim that the legislative scheme contemplated that the decision whether to approve was made according to a process that culminated in the approval of the controlled action. Therefore, so it was claimed, a deferral (until after the approval had been granted) of all or part of the substantive evaluative task to form part of later consideration as to whether to approve an action management plan would take that process outside the statutory requirements for the Approval and for that reason be invalid. The second was a claim that the nature of the conditions of the Approval that required the subsequent approval of the plans was, in substance, a deferral of all or part of the substantive evaluative task.

45    The two propositions were put in various ways. It was said that there was a splitting of the decision. It was also said that the Minister had not really given the required approval at the time of the granting of the Approval but had left the substantive assessment or a significant part of it until the point where there was to be evaluation as to whether the conditions requiring the plans to be approved had been met. It was said that there was a question of degree as to how much of the evaluative process could be deferred to a consideration of action management plans but in the present case too much had been left for later consideration. It was said that the terms of condition 8 in particular required access to the same material for the purpose of making nearly the same decision that the Minister was required to make in deciding whether to grant the Approval, namely whether the impact on threatened species could be ameliorated in a manner that was sufficient to justify the grant of the Approval.

46    As to the first proposition, it has considerable merit. The statutory process in a case like the present ensures that a decision to approve is made by reference to the information document and the recommendation report. In other cases where there is a different assessment process, the Protection Act will require regard to the outcome of the particular assessment process that the Minister has determined must be followed. In short, the detail of the scheme supports an interpretation of the legislation that would require the approval decision to be completed when the instrument of approval was issued and not deferred in whole or in part to some later point in time by use of 'conditions'.

47    In the present case, the relevant documents must be prepared after a consultation process that obtains input from other Ministers and from the public. The same applies to other types of assessment. If the evaluative process as to whether an approval should be given is not completed when the approval of the controlled action is given then there is the very real possibility that any subsequent evaluation of action management plans would not be undertaken by reference to the relevant documents and recommendations (or other assessment outcomes) that are prepared under the scheme of the legislation in order to inform the decision whether to approve the action. Significantly, the considerations to be taken into account by the Minister in deciding whether or not to approve are exposed by the assessment process and the information garnered through consultation as part of that process (not by some later process undertaken pursuant to conditions).

48    Further, it may be expected that reasons formulated for the required decision to approve or not approve the controlled action would expose fully the basis for the decision and not depend upon some later evaluation to be made in the course of considering whether to give an approval required by conditions.

49    Therefore, there is a strong argument that the Minister must conclude the substantive task of evaluating whether to approve the controlled action for the purposes of allowing conduct that would otherwise be prohibited by the Protection Act at the time of any decision to grant the Approval. It is not open to the Minister to defer any evaluation as to whether to approve the controlled action or the formulation of the content of the conditions to the stage when compliance with conditions is determined.

50    So, for example, if the Minister was uncertain as to whether it was possible to formulate a fauna management plan that could conform to the detailed requirements specified in condition 8 of the Approval in the present case and nevertheless approved the controlled action on the basis that the Minister would wait and see what was proposed and then consider whether, in light of that proposal, whether to approve then there would be a strong basis to claim that the decision was not of the kind required. The same problem would arise if the Minister approved controlled action on the basis that the Minister may or may not approve a plan required by a condition on the basis, in effect, that approval of the particular controlled action should be refused. In either case, even though the assessment process did not produce information that satisfied the Minister (having regard to matters to which the Minister was required to have regard in deciding whether to approve) that the terms of a fauna management plan of the kind required by the contemplated condition would result in the action being taken in a way that the Minster was prepared to approve, nevertheless approval of the controlled action is given. It would also mean that those who are required to be consulted as part of the assessment process may not be able to provide input into any deferral of the evaluation undertaken at the time of considering whether to approve for the purposes of a condition even though the material before the Minister at the time of the approval decision was insufficient to persuade the Minister to approve the controlled action. In that regard, I note that although there is power for the Minister to allow further public consultation concerning any action management plan, there is no requirement to do so (whereas the assessment process required to be followed for any approval of a controlled action must involve public consultation). Similarly, there is no reference to the consultation of other Ministers.

51    For FOGC, reliance was placed upon a kind of invalidity that was exposed by the reasoning in Buzzacott in dealing with a submission concerning condition 71 in that case. It allowed for a variation to the action that was the subject of the Approval. In deciding that the condition was beyond power, the Court said at [217]:

Condition 62 further provides that a plan 'satisfying State requirements and addressing the matters set out in this condition will be deemed to have been submitted and approved by the Minister'. While this, at one level, might suggest a degree of abdication of satisfaction of the condition to the approval holder or the State, properly construed the provision merely requires the environmental management plan to satisfy State requirements and address the matters set out in the condition. If that occurs then the Minister by this condition has indicated in advance that he will treat the plan as one approved by him following submission. If the plan does not meet those requirements then it may be taken that the Minister would consider conditions 61 and 62 not to have been satisfied. The specification of 'State requirements' (which should be construed as a reference to relevant State laws and not executive, ministerial or administrative directions) provides a certain external source of regulation and does not make the Decision uncertain. It does not delegate any decision-making authority to the State.

52    Significantly the above reasoning rests upon an analysis to the effect that condition 71 purported to confer authority to approve a different action. The claim advanced in the present case is not of that character. Nor is it analogous. The claim in the present case concerned whether there had been an approval of the freeway works not whether there could, by the conditions, be approval of some other works.

53    However, it was not sufficient for FOGC to show that the first proposition supporting contention (2) had considerable merit. It was necessary to show also that on the material before the Court there was at least an arguable basis to support a conclusion that the Minister had deferred part or all of the required evaluation (being the second proposition).

54    In the course of argument, FOGC relied upon the following aspects of the conditions, namely:

(1)    the conditions provided for subsequent approval of each of the three plans by the Minister;

(2)    the conditions required certain specified matters to be met to the Minister's satisfaction and thereby required an evaluative assessment;

(3)    the conditions stated that the Commissioner 'must not commence the action unless the Minister has approved' each of the plans;

(4)    approval of the plans required consideration as to whether certain specified outcomes could be achieved and whether detailed requirements were met by the plans; and

(5)    in the case of condition 8, the requirement to specify to the Minister's satisfaction that the measures in the fauna management plan would 'avoid, mitigate and manage impaction of the action on listed threatened species during clearance, construction and operation' (which was said to be the nature of the substantive evaluative task to be undertaken in deciding whether to approve the controlled action).

55    For the following reasons, save for point (5), I was not satisfied that any of the above aspects either separately or together provided an arguable basis for the claim that, in effect, the Minister deferred part or all of the required evaluation to the point when the content of the plans was to be considered. As to point (5), it was arguable but there were reasons why it was not likely to succeed. In my view, to sustain a claim of that kind it would be necessary to show that the Minister remained in a state of uncertainty as to whether plans which met the conditions would be a sufficient basis for the grant of the Approval and was waiting to see the terms of the plans before reaching that view or was deferring part or all of the approval decision until that later point in time.

56    On my assessment, the form of the conditions is entirely consistent with the Minister having determined that provided there were plans of the kind described in the conditions and those plans were carried into effect then it was appropriate for the Approval to be granted. Indeed, the detailed nature of the conditions and the extent to which they specify what is required to be included in the plans supports that conclusion. The conditions specify precisely what is required by the plans. For example, the fauna management plan must identify adjacent receival sites for possums and passive relocation management actions and steps to ensure that a tree occupied by a possum is not disturbed for 48 hours or until confirmation that the possum has vacated the tree before the tree is felled and requires monitoring by methods that include radio telemetry of tagged possums. Other aspects deals with requirements to re-establish habitat. The detail in the conditions indicates that there has been close consideration given to precisely what must occur as a condition of the Approval.

57    Having regard to the nature of the conditions, the requirement that the Minister approve each of the plans on the basis of the Minister's satisfaction that the plan ensures the matters specified is not a deferment of the evaluative task. Rather, it is a means by which to afford the Commissioner an opportunity to finalise a plan that contains all that the Minister contemplated at the time that the Approval was given.

58    As to the form of the evaluation required by condition 8, it may be accepted that the satisfaction is expressed in terms that reflect the nature of the substantive evaluation to be undertaken by the Minister in considering whether to grant the approval of the fauna management plan. It is arguable that the expression of a condition in that form indicated that the Minister had not reached a view that there could be a habitat management plan of a kind that would justify an approval. However, it is equally consistent with such a view having been formed and a decision to require a form of evaluation as to whether the particular contents of the plan as specified in the condition will do what was the basis for the Approval. The fact that condition 8 is not confined to the language of the chapeau but includes the detailed list of matters that must be contained in the plan and the form in which matters in the list are expressed (as specified requirements manifesting a considered view as to what must be in place as part of the plan before it would be approved) counts substantially against the aspect of the claim that relied upon the terms of condition 8.

59    FOGC has sought the provision by the Minister of reasons for the decision relying upon s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The statutory time limit for the provision of those reasons had not expired by the time of the hearing. The Minister has indicated that the reasons will be provided. FOGC did not seek a stay under s 15 of that Act of the taking of any action to implement the approval decision pending the provision of those reasons. The case depended upon what might be concluded from the conditions as expressed.

60    As to the fact that the conditions provide that the action not commence until the plans have been approved, a condition in that form does not necessarily indicate that there has been some deferral of the evaluative decision. A conclusion to that effect was reached in Buzzacott at [179]. It is entirely consistent with the completion by the Minister of the substantive evaluation as to whether to approve for the Minister when granting the Approval to nevertheless require that certain things be done (and approved as meeting specified requirements) before the controlled approved action is commenced.

61    For those reasons, whilst it might be said that the claim advanced by contention (2) was arguable insofar as it relied upon the opening language of condition 8, I was not persuaded that the claim had sufficient merit to support the grant of the injunction. In part that reflects a view that the point is a legal one that depends upon a consideration of the terms of the conditions and not upon the evidence and in part a consideration of the likely consequences if the relief sought had been granted but the claim by FOGC had ultimately been unsuccessful (see below).

Contention (3): Alleged absence of delegated authority

62    The relevant conditions required the Minister's approval of the three plans. The conditions to the Approval defined the term 'Minister' to mean 'the Australian Government Minister administering the [Protection Act] including any delegate thereof'. Before the Court on the hearing of the application for injunctive relief were instruments of delegation by which the Minister had delegated powers and functions under the Protection Act pursuant to the express power to do so under s 515 of the Protection Act. The decision to approve the plans was made by a person who was a delegate of the Minister who was entrusted by instrument of delegation with the delegated authority to grant the Approval in the present case (but was a different person to the delegate of the Minister who had granted the Approval).

63    It was submitted that to be a delegate for the purposes of the condition to the Approval, the person needed to be delegated that authority by the Minister. It was further submitted that the instruments of delegation under the Protection Act could not be the source of that authority because the express terms of those instruments confined the delegation to powers or functions under the Protection Act which did not extend to having delegated authority for the purposes of the instruments of delegation.

64    Accepting that there is considerable merit in an argument that the instruments of delegation did not confer authority to give the approval for the purposes of the conditions, the question turns upon the proper construction of the approval conditions. The conditions identify those persons who may make the decision to 'approve' each of the plans as being the Minister administering the Protection Act including any delegate thereof. In my view, in the context of the statutory scheme, a condition expressed in those terms is referring to the class of persons who have delegated authority under the Protection Act to give the Approval. There is no dispute that the person who approved the plans was such a person.

65    It was further submitted that such a construction would improperly purport to authorise a delegate of the Minister who granted the statutory approval of a controlled action to further delegate that authority upon any person who made the decision as a delegate of the Minister for the purposes of the conditions requiring approval of the plans. I did not accept that submission. The terms of the conditions do not involve the conferral of statutory authority to approve a controlled action. Rather they identify, as a matter of fact, the category of persons who are able to give the approval required by the conditions. The person who then gives the approval as required by the conditions does not exercise any statutory authority to approve the controlled action under the provisions of the Protection Act. The exercise of that power is spent with the making of the decision to approve the controlled action on the specified conditions. It is possible for a condition of the approval of a controlled action to require the approval of a third party or their delegate. A condition in that form does not purport to delegate any statutory authority to approve (or any other power or function under the Protection Act that has been delegated by the instruments of delegation). In the present case, the requirement in the conditions for approval by the Minister or delegate confers authority by operation of the conditions of approval. No issue of sub-delegation of the power to approve a controlled action arises.

66    A different question would arise as to whether the decision to approve or not approve a plan for the purposes of the conditions would be reviewable according to public law principles on the basis that it is an exercise of statutory power. A different question again would arise as to whether such a decision would be amenable to review as a decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act. However, having regard to the matters raised on the application it is sufficient to say that I concluded that there was little merit in the claim that the decision to approve the plans had been made by a person without the required delegated authority. In any event, it was a short point of law which, having been argued with the opportunity to advance written submissions, I concluded should be determined against FOGC for the reasons that have been stated.

Contention (4): Alleged significance of different decision-makers

67    The final contention advanced by FOGC relied upon the undisputed fact that the decision to approve the controlled action was made by a delegate of the Minister and the decision to approve the plans was made by a different delegate. In my view, the involvement of different decision-makers only had significance if some part of the deliberative task was deferred until after the decision to approve the controlled action of undertaking the freeway works was made. For reasons given in relation to contention (2) that was not the case.

68    Further, for reasons given in relation to contention (3), the question whether to approve the plans for the purposes of the conditions was a separate and subsequent decision. The decision to approve the plans was a decision to be guided by the terms of the condition, particularly the detailed list in the conditions of the matters that must form part of each plan. No arguable case was demonstrated as to why the delegate who gave the Approval was the only person who could be authorised by the conditions to decide whether to approve the plans.

Balance of convenience

69    On the evidence, there were matters to be weighed for and against the grant of relief.

70    Clearing works by the Commissioner had commenced. On the evidence, in the space of a week or so the works that would affect the habitat of the Western Ringtail Possum would be completed.

71    For FOGC it was submitted that the injunction could be granted for a short period until there was a final hearing on the merits. It was emphasised that the Western Ringtail Possum is critically endangered and it was submitted that the works might seriously contribute to the possum becoming extinct.

72    For the Commissioner, there was evidence to the effect that the clearing works that would affect the habitat of the Western Ringtail Possum were on the critical path for the freeway works and delay in those works would have consequences for all the works. Further, the approved fauna management plan only allowed those works to be carried out between 1 March and 30 August to avoid disturbance of the possums when they have young of a particular size and weight in their pouches. The August date was not firm and might be brought forward based upon observations by fauna spotter-catchers on site as to whether there were baby possums in the vicinity. Therefore, there was the possibility that from as early as mid-August the works would have to be deferred until March 2023 if not completed by then. Also, under the plan the relevant part of the works which involved clearing of possum habitat could only progress at the rate of one hectare per day up to a maximum of 5 hectares in a week. On that basis, it was said that continuation of the interim injunction even for a short period would risk substantial delay to the freeway works.

73    There was evidence of detailed steps that were being taken in accordance with the plan to avoid death or injury of the possums. Most of the possums in the vicinity of the proposed works had been radio collared. Using radio tagging and night time observation the location of the daytime resting location for every collared and non-collared possum within the corridor was being identified and the tree marked. Ropes were provided to enable possums to relocate. If after two days they did not do so then each marked tree was to be soft felled in order to safely remove the possum so that it could be relocated to nearby habitat. It was said that there had been no death or injury caused by the works to date (carried out before the interim injunction). It was also said that there were multiple populations of Western Ringtail Possums in Western Australia across three very large management zones.

74    It was also submitted that there had been significant public consultation prior to the Approval being granted and that the Approval had been in place since 30 June 2022, a matter that was publicly known. An alternative route (with environmental impacts) had been examined and discarded.

75    As to the public interest in the freeway works being allowed to proceed, it was submitted for the Commissioner that there were significant economic and other benefits including reducing congestion, the creation of a safer road system and the generation of substantial job opportunities to be provided by the proposed works.

76    Finally, it was submitted that there had been unexplained delay by the applicant because the prospect of the works proceeding had been known since 30 June 2022 when the Approval had been given and publicly announced. Yet, FOGC had waited until the clearing works pursuant to the Approval had commenced before bringing proceedings.

77    Significantly, there was no evidence in support of the application as to why the steps being taken to give effect to the approve fauna management plan would not be effective in protecting the Western Ringtail Possum. The opinion evidence advanced for the Commissioner to the effect that it was very likely that the habitat for the possums can be re-established and that Western Ringtail Possums have been observed in rehabilitated road reserves and Western Ringtail Possums and Black Cockatoos had been observed in other rehabilitated areas was disputed. However, that did not mean that the evidence should be disregarded particularly in circumstances where the process undertaken by the Minister under the Protection Act was directed to considering such questions. Even though the application for injunctive relief had been brought on at short notice, the question whether the proposed works might have adverse consequences for the possums and other endangered wildlife in the vicinity of the works had been a matter of concern and interest for members of FOGC for a considerable period of time. However, there was no explanation of any basis for concern that the measures being taken would not avoid, mitigate and manage impacts of the freeway works on the listed threatened species.

78    It was submitted by FOGC that any delay to the freeway works is unlikely to be a great prejudice in the context of a lengthy project and that the public understands that there may be delays. I did not accept the submission to the effect that the consequences of delays are inherent. The question is whether this particular cause of delay to the construction of a substantial piece of infrastructure in the public interest is justified.

79    In my view, in all the circumstances, there needed to be much more than arguable merit in the claims being made in order to support the continuation of the injunction. That was particularly so where, on the evidence, any continuation of the injunction was likely to result in considerable delay in the Commissioner being able to undertake the freeway works in the wider public interest, there was no basis before the Court to conclude that there would not be adherence to the terms of the approved fauna management plan and there was no basis before the Court to conclude that the fauna management plan was itself inadequate or inappropriate. In those circumstances, the likely outcome of an injunction for sufficient time to enable a final determination of the claims on an urgent basis was that the construction of a substantial piece of infrastructure would be delayed by a considerable period only to result in the claims being unsuccessful. On the other hand, if the works proceeded there was no evidence to support the claims that death or injury to the possums was likely.

Undertaking as to damages

80    Had I held a different view then it would have been necessary to consider whether the injunction should have been continued on the basis of an undertaking as to damages proffered by FOGC in circumstances where it accepted that the association had very little financial resources to support an undertaking.

81    The provision of an undertaking as to damages has been described as the 'price' of an injunction. It is better seen as a mechanism by which the Court ensures that a person who seeks the protection of an interlocutory restraint affords reciprocal protection from any adverse consequence of the grant of the relief if the person is ultimately unsuccessful. It thereby prevents injustice that might otherwise flow from the grant of the interlocutory injunction: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249. Where an undertaking from a party will not afford such protection due to the financial circumstances of the party proffering the undertaking then the Court may require those who stand behind the party (and who will benefit from the injunctive relief) to provide an undertaking: Targus Australia Pty Ltd v Targus Group (UK) Ltd [2019] NSWCA 9 at [12] (Basten and Macfarlan JJA).

82    A former provision in s 478 of the Protection Act provided that the Court could not require an undertaking as to damages where an application was brought under the statutory provision empowering the grant of injunctive relief: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425 at [18]-[24] (Black CJ and Finkelstein J). The provision was repealed in 2006. Therefore, the ordinary principles apply.

83    Where, as here, the application is brought in the public interest and invokes principles of public law, the Court may grant injunctive relief without conditioning the relief upon a requirement to provide an undertaking as to damages: see the authorities considered in Humane Society International Inc at [18]-[24]; and Environment East Gippsland Inc v VicForests (No 2) [2009] VSC 421 at [16]-[21] (Forrest J); the reasoning in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256; and the explanation of the limits of the principle in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 1702 (Stewart J). However, such an approach may not be appropriate where the relief will be of particular private benefit to the applicant: see Mackenzie v VicRoads [2016] VSC 698 at [60] (Emerton J).

84    In the result, it was not necessary to reach any concluded view concerning the undertaking as to damages.

Conclusion

85    Cases of this kind are difficult because of the competing priorities and considerations that are at stake and the need to address important matters urgently. However, the orders sought can only be granted if there is sufficient legal merit in the legal arguments advanced.

86    In all the circumstances, I was not satisfied that the contentions advanced to support the application had sufficient legal merit to support the grant of the relief sought in all the circumstances. It followed that the application must be dismissed.

87    I determined that the costs of and incidental to the application should be reserved. I did so to enable the parties to consider their respective positions as to costs and to enable submissions to be received in due course if costs were sought.

Associate:

Dated:    15 August 2022