Federal Court of Australia

Jam Land Pty Ltd v Minister for the Environment [2022] FCA 1058

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The applicant, Jam Land Pty Ltd (Jam Land), seeks judicial review of two determinations made by delegates of the respondent (Minister). The first of those determinations concluded that Jam Land had taken action likely to have a significant impact on a “critically endangered ecological community”, in contravention of the civil penalty provision in s 18(5) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The second determination reaffirmed the first, following an application for reconsideration by Jam Land.

2    Each of the three grounds of review turns on the proper construction of the EPBC Act.

3    In brief, each ground fails for its attempt to read into the EPBC Act conditions and implications that might appear, at least superficially, logical or expedient, but require conjectural conclusions as to the slippery notion of legislative intent: Salomon v Salomon & Co Ltd [1897] AC 22 (at 38 per Lord Watson); Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 (at 418 [8] per Gleeson CJ). Be that as it may, to the extent that purpose can be ascertained as part of the legitimate process of construction, when properly understood, it favours the Minister’s contentions.

B    THE RELEVANT FACTS

4    Orders were made for the preparation of a document entitled “Agreed Background Facts” for the purposes of s 191 of the Evidence Act 1995 (Cth). With the benefit of that document, my factual findings are as follows.

5    Jam Land is the registered proprietor of land in Corrowong, in the Snowy Monaro region of New South Wales.

6    The Minister administers the EPBC Act, s 181 of which requires the Minister to establish a list of threatened ecological communities (List) divided into the following categories: (a) critically endangered; (b) endangered; and (c) vulnerable.

7    In July 2000, the Minister made an instrument entitled “Declaration under s 178, s 181, and s 183 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)” which, among other things, listed the Natural Temperate Grassland of the South Eastern Highlands of New South Wales and the Australian Capital Territory (NTG-SEH) in the “endangered” category. This instrument was effective from 16 July 2000.

8    In March 2016, the Minister made a further instrument entitled “Amendment to the lists of threatened species, threatened ecological communities and key threatening processes under sections 178, 181 and 183 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EC 152)” (Amending Instrument). The Amending Instrument was effective from 6 April 2016, and, relevantly: (1) deleted NTG-SEH from the “endangered” category; and (2) included NTG-SEH “as described in the Schedule to this Instrument” (Schedule) in the “critically endangered” category.

9    The Schedule is a one-page document that provides, among other things:

The Natural Temperate Grassland of the South Eastern Highlands ecological community occurs in and around the South Eastern Highlands bioregion, as defined by version 7 of the Interim Biogeographic Regionalisation of Australia (2012).

10    The Interim Biogeographic Regionalisation of Australia (IBRA) is a key tool for identifying land for conservation, first developed in 1993–1994 and published in Thackway R and Cresswell I D (eds) An Interim Biogeographic Regionalisation for Australia: a framework for establishing the national system of reserves (Australian Nature Conservation Agency, 1995).

11    As might be expected, the IBRA is updated from time to time. The current version (IBRA7) classifies Australia’s landscapes into 89 large, geographically distinct so-called “bioregions”, one being the South Eastern Highlands. The 89 bioregions are further refined into 419 subregions.

12    The Schedule also describes the physical constitution and dominant characteristics of the ecological community.

13    Under s 266B(1) of the EPBC Act, the Minister must ensure that there is an “approved conservation advice” for each listed threatened ecological community at all times while the community continues to be listed. Such an advice is to be a document which sets out: (1) the grounds on which each community is eligible for inclusion in the category in which it is listed; (2) the main factors causing its eligibility; and (3) either information about what could appropriately be done to stop the decline, or support the recovery, of the community, or a statement to the effect that there is nothing that may be done: s 266B(2)(a)–(b) of the EPBC Act.

14    In 2016, the Minister approved a document entitled “Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (s 266B) Approved Conservation Advice (including listing advice) for the Natural Temperate Grassland of the South Eastern Highlands (EC 152)” (Conservation Advice). The Conservation Advice is a 57-page document, which includes a description of the NTG-SEH ecological community of some 13 pages.

15    On 28 April 2020, a delegate of the Minister (First Delegate) issued a determination to Jam Land under s 480D(1) of the EPBC Act (Remediation Determination). At the time of issue, the First Delegate considered that:

(1)    on or about 30 October 2016, Jam Land undertook spraying of herbicide (Spraying) on Lots 16 and 44 of DP756859 and Lot 1 of DP740077, in Corrowong (Sprayed Lots);

(2)    before the Spraying, the Sprayed Lots contained a “listed threatened ecological community”, namely NTG-SEH;

(3)    the Spraying caused the removal of NTG-SEH;

(4)    the total amount of NTG-SEH removed was between 0 and 28.5 hectares (which I take to be a clumsy way of expressing a conclusion that it was up to 28.5 hectares); and

(5)    the removal of NTG-SEH has had a significant impact on the wider NTG-SEH ecological community.

16    The Remediation Determination required Jam Land to take the action detailed in a schedule to the Remediation Determination to mitigate the damage caused. It also stated that Jam Land may apply to the Minister for reconsideration pursuant to s 480J of the EPBC Act within 20 days. Further annexures included a satellite image of the “Corrowong mitigation area – mapped boundary and associated vegetation types” and a copy of the relevant provisions of the EPBC Act. The material considered by the First Delegate included expert advice commissioned in 2017.

17    On 18 May 2020, Jam Land applied to the Minister for reconsideration of the Remediation Determination, relying on an ecology report of Dr David Robertson.

18    On 10 December 2021, another delegate of the Minister (Second Delegate) affirmed the Remediation Determination pursuant to s 480J(2) of the EPBC Act (Affirmation Determination). The Affirmation Determination stated that the Second Delegate considered a range of information in coming to a decision, including two reports prepared by Dr Robertson and additional expert advice.

C    THE EPBC ACT

19    Next, it is useful to outline in more detail the statutory scheme under which the impugned determinations were made.

20    Division 14B, in Ch 6 Pt 17 (which relevantly includes ss 480D and 480J), provides for the making of remediation orders by the Minister. It was inserted into the EPBC Act by Sch 1 of the Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) (Amendment Act), which was intended to “extend” and “enhance” the pre-existing enforcement provisions in the EPBC Act: Explanatory Memorandum, Environment and Heritage Legislation Amendment Act (No 1) 2006 Bill (Cth) (at [478]–[488]).

21    Section 480D(1) states:

If:

(a)    the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3; and

(b)    the Minister considers it desirable to make an order under this section in relation to the action;

the Minister may make a written determination (a remediation determination) requiring the person to take action to repair or mitigate damage that may or will be, or that has been, caused by the contravention, to the matter protected by the provision of Part 3.

(Emphasis in original).

22    Part 3 of the EPBC Act is contained in Ch 2 and relevantly includes s 18, the civil penalty provision in relation to which the Remediation Determination was made. Section 18(5) provides that a person must not take an action that has, will have or is likely to have a significant impact on a “listed threatened ecological community included in the critically endangered category”.

23    A “listed threatened ecological community”, per its definition in s 528, is an ecological community included in a list created under ss 178, 181 or 183. Section 181(1) provides for the establishment of the “critically endangered category” List, and s 184 for its amendment. Section 184 is in the following terms:

184    Minister may amend lists

Subject to this Subdivision, the Minister may, by legislative instrument, amend a list referred to in section 178, 181 or 183 by:

(a)    including items in the list in accordance with Subdivision AA …

(b)    deleting items from the list …

24    The Amending Instrument included NTG-SEH in the List pursuant to s 184.

D    THE EXPERT EVIDENCE

25    A controversy emerged at the hearing relating to adduction of expert evidence.

26    Both parties filed expert evidence in the field of ecology. Jam Land filed a report of Dr David Robertson dated 26 April 2022, and the Minister a report of Mr Robert Speirs dated 10 June 2022. In the course of case managing the proceedings, I made orders for the provision of joint expert evidence pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth). I did this, in part, because I had some difficulty in understanding why opinion evidence would be relevant; so if it was proposed to be adduced, I considered that it should at least be directed towards agreed questions and be provided in the most convenient and least partisan form. Questions were settled upon, and both experts then participated in a joint expert conference. Out of this process, the experts usefully produced a joint report dated 30 June 2022 (Joint Report).

27    The controversy has two aspects. First, Jam Land sought to tender the individual reports of Dr Robertson and Mr Speirs on the basis that the Joint Report was pitched at a “fairly high level of generality”, and senior counsel intended to identify purportedly relevant detail in the individual reports. I questioned this course and indicated that I would be inclined to accept the tender of the Joint Report only. The whole point of the expert conference process was for the parties to identify the facts in issue in respect of which Jam Land asserted opinion evidence was necessary. Those issues were reflected in a document titled “Factual Issues for Determination”, which the parties prepared jointly by order of the Court.

28    Secondly, the Minister objected to the reception of any expert evidence on the basis that the three grounds of judicial review did not call for or permit the admission of expert evidence.

29    In any event, I determined to receive into evidence only the Joint Report, which synthesises the opinions of the experts in relation to the matters which are said to be relevant, and to allow the concurrent cross-examination of both witnesses with respect to any additional issues of relevance. I also resolved to hear later any submissions as to whether the Joint Report had any place in determining the objective exercise to be undertaken with respect to each ground of review. As will become evident, the expert evidence was immaterial to my conclusions (and even if all expert material served had been received, my conclusions would have been unaltered).

30    It is convenient now to turn to the grounds of review.

E    GROUNDS OF REVIEW

31    Jam Land contends that the Remediation Determination and Affirmation Determination were invalid on the following three grounds:

(1)    NTG-SEH was not validly listed as a threatened ecological community because the Amending Instrument does not identify the community the subject of the listing with “sufficient certainty and precision” (Ground One).

(2)    The delegates erred in law by asking the wrong question: the question posed by ss 480D and 480J, read with s 18(5)(b), was whether there was a significant effect on NTG-SEH as described in the Amending Instrument. The delegates did not turn their mind to the Amending Instrument and instead looked at another document, the Conservation Advice (Ground Two).

(3)    The determinations failed to specify the action to be taken to repair or mitigate the damage with sufficient precision (Ground Three).

32    Each ground must fail for the following reasons.

E.1    Ground One

33    Ground One rests upon a central, underlying proposition: it is a condition of the validity of the exercise of power to amend a List pursuant to s 184 that each listed ecological community is described with “sufficient certainty” or, put another way, the identification of a listed ecological community “must enable a citizen to decide whether a specific location falls within it”: VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297; (2003) 58 NSWLR 631 (at 635 [7] per Spigelman CJ).

34    This contention assumed two colours over the course of submissions. First, Jam Land put forward (but did not substantially develop) the contention that satisfaction of the condition of certainty is a jurisdictional fact. Secondly, Jam Land submits that the statutory power in s 184 is subject to an implied condition of certainty of the kind identified by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 (at 35–36).

35    I will deal with each in turn.

Jurisdictional Fact

36    Whether s 184 creates a jurisdictional fact is a question of statutory construction: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (at 149–150 [32]–[34] per Gleeson CJ, Gummow, Kirby and Hayne JJ). In Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ pithily reflected (at 139 [32]) that the expression “jurisdictional fact”:

… is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

37    The expression was, as in Gedeon, “used somewhat loosely” over the course of Jam Land’s submissions: Gedeon (at 139 [32] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ). Jam Land did not identify any fact or criterion which must exist to amend a list pursuant to s 184(a), other than that vague proposition that items must be identified with “sufficient certainty”. Senior counsel for Jam Land sought to clarify his position in oral reply, stating (at T112.19–35):

… the point we were making in relation to jurisdictional facts and the evidence is that what we say is there is a constraint on the validity of the – of an insertion of an item under section 184 that goes to validity if that item is not sufficiently certain or reasonably certain or reasonably practicable. Now, our point is that the question of reasonable certainty is something for the court to determine, not something for the Minister to be satisfied about. That was our point … And that’s why we say that the court could hear evidence on that point.

38    I am unable to see how this justification goes any way to establishing the existence of a jurisdictional fact. Section 184 constitutes an element of the wider practical apparatus provided for by the EPBC Act. It provides only that the Minister’s action is “subject to” Subdiv A of Div 1 of Pt 13, and that the Minister may amend a List in ss 178, 181 or 183. The word “may” is permissive on its face, and is here not coupled with any duty, so as to render the action mandatory rather than discretionary: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [32]–[33] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). As such, s 184 does not provide for any precursory event or the arrival at any state of satisfaction as a precondition for exercising the power.

39    This submission is, in substance, a frail variation of the argument (addressed below) that s 184 is subject to an implied condition of certainty. That is, of course, something different from a jurisdictional fact.

40    This conclusion affects the admissibility of the expert evidence discussed above in Section D. Evidence that was not before the original decision-maker is usually inadmissible: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 (at 564–565 [454]–[456] per Weinberg J). Expert evidence may, however, be admissible in proving the existence of a jurisdictional fact: Mackenzie v Head, Transport for Victoria and Minister for Planning [2021] VSCA 100 (at [171]–[175] per Tate, Kyrou and Kennedy JJA); Bates G, Environmental Law in Australia (LexisNexis, 10th ed, 2019) (at 877 [13.31]). For completeness, though not relevant here, I note that expert evidence has also been admitted in cases of judicial review in limited circumstances to establish legal unreasonableness: see, for example, Australian Retailers Association v Reserve Bank of Australia (at 566 [457]–[460] per Weinberg J).

41    The question which falls to be determined in Ground One is one of statutory interpretation. Although I received the expert evidence, it was of little or no assistance in the consideration of, let alone in the resolution of disputed questions about, the interpretation of a statute or legislative instrument. This is because there was no contention that words or phrases were used otherwise than in their ordinary English meaning: see the summary of principles in Uber BV v Federal Commissioner of Taxation [2017] FCA 110; (2017) 247 FCR 462 (at 487–488 [104]–[105] per Griffiths J).

Implied Condition of Certainty

42    At the oral hearing, senior counsel for Jam Land conceded that no requirement of “sufficient certainty” is expressly provided for in s 184. As such, the thrust of Jam Land’s case as to Ground One is that s 184 is subject to an implied condition of certainty.

43    In developing this argument, Jam Land’s written and oral submissions said little of the text and context of s 184. In summary, Jam Land agitates that the implication is drawn from the severity of the penalties in ss 18 and 18A, the statutory object of protecting the environment in s 3(1)(a), and the definition of “ecological community” in s 528, as “the extent in nature […] of an assemblage of native species that (a) inhabits a particular area in nature” (emphasis added).

44    Beyond these discrete points, references to the statute more generally were made not in order to conduct an attentive reading of the text itself, but rather to draw inferences about what an “ordinary reasonable citizen” would make of the List and the Schedule to the Amending Instrument. At the hearing, I questioned the cogency of positing such a hypothetical in circumstances that inherently involve jargon and technical concepts used in the field of ecology rather than in the course of everyday life. In any event, this hypothetical had no bearing on the constructional task before the Court.

45    It is necessary first to contextualise the precise species of implication for which Jam Land agitates; secondly to canvass relevant principles of statutory interpretation more generally; and thirdly to apply both bodies of principle to s 184.

Implied conditions on statutory power

46    In Attorney-General v Quin (at 36), Brennan J stated the following:

the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

47    But care must be taken to ensure the concept of an “implied limitation on the extent or the exercise of statutory power” does not distract. It is no freestanding principle. At the oral hearing, both parties raised Comcare v Lilley [2013] FCAFC 121; (2013) 216 FCR 214 (at 234–235 per Kerr, Farrell and Mortimer JJ), the Minister doing so to emphasise precisely that point:

86.    … it is more important to pay attention to the observation of principle by Dixon J in King Gee. His Honour held (at 194, 196) there is no “doctrine” that certainty is a separate requirement that all forms of subordinate legislation must fulfil, a proposition endorsed by Kitto J in Television Corporation Ltd at 71; see also Cann’s Pty Ltd at 227. Rather, if uncertainty can be a test of validity it is only because of the nature of the particular rule-making power under consideration, and the “meaning and operation” of the authorising provisions themselves.

87.    The point is, uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case and in our opinion it is not the case in respect of the Guide.

(Emphasis added).

48    The question of whether s 184 is subject to an implied condition turns on whether there is a “requirement of certainty inherent in the provision pursuant to which the power is exercised”, and whether, as a result, the Amending Instrument complies with this requirement: Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 394 ALR 385 (at 390 [20] per Gordon J), citing Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 (at 71 per Kitto J).

Relevant principles of statutory interpretation

49    It is with the foregoing in mind that attention is now turned to more general principles of statutory construction.

50    Statutory words should be given their “natural and ordinary meaning”: Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 (at 572–573 [26] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The former describes the “grammatical” meaning of a word in the context in which it appears: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 305 per Gibbs CJ); Mills v Meeking (1990) 169 CLR 214 (at 223 per Mason CJ and Toohey J). “Context” here is used in a narrow sense, directed to the subject matter and collocation of the words in question: Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 (at 302–303 per Isaacs J). The latter refers to the “ordinary usage” of the word: Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 (at 560 per Mahoney JA).

51    It follows that a word may have several ordinary meanings, yet only one natural meaning: Herzfeld P and Prince T, Interpretation (Lawbook Co, 2nd ed, 2020) (at 26).

52    However, questions of statutory construction cannot be resolved merely by resorting to the literal meaning of statutory language: see, recently, Sydney Sea Planes Pty Ltd v Page [2021] NSWCA 204; (2021) 106 NSWLR 1 (at 10–11 [26]–[31] per Bell P, 33 [135] per Leeming JA, 40 [169] per Emmett AJA). The modern approach to statutory interpretation, as Sir Anthony Mason observed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (at 315), “insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise” (emphasis added).

53    Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy: see, for example, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (at 368 [14] per Kiefel CJ, Nettle and Gordon JJ).

54    As such, text, purpose, and context are revealing of one another. In this case, each points away from the view of s 184 taken by Jam Land.

Consideration

55    First, as a matter of language, s 184(a) confers a generally expressed power to “amend a list” of threatened ecological communities by “including items in the list in accordance with Subdivision AA”. The word to which the dispute is really directed is “items”. An item is “a separate article or particular”: Macquarie Dictionary Online. Its collocation with the word “list” might say something about the intended constitution of “items” within the meaning of s 184: for further discussion of the need to read and understand words together, and the role of dictionaries in statutory interpretation more generally, see Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 (at 78 per Isaacs J) and Provincial Insurance v Consolidated Wood Products (at 560 per Mahoney J). In its ordinary English meaning, “including an item in a list” is something that can validly be done, no doubt, in several ways. However, there is nothing in the ordinary or natural meaning of “items” or “list”, or in their appearance together in s 184, that requires a full description of the ecological community to appear in the Amending Instrument.

56    Secondly, and following, the existence or non-existence of such a requirement is clarified by the wider statutory context of s 184. Subdivision AA (ss 194A–194T), referenced in s 184, is immediately relevant. It outlines the nomination and listing process, and tends against Jam Land’s construction in two key ways.

57    The first is that it distinguishes between an “item” and a “description of an item”. Section 194G(1) provides for the creation of a “proposed priority assessment list”, and its cognate s 194H sets out the matters to be included for each “item” in a proposed priority assessment list, relevantly including “a description of the item”: s 194H(1)(a). The demarcation between an “item” and a “description” of an item in Subdiv AA tends against a conclusion that for the purposes of s 184, “item” necessarily means a detailed “description of the item”. It has long been presumed that a word or phrase has the same meaning throughout an Act: Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 (at 466–467 [21] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). There is no cause to depart from that presumption here, not least where Pt 13, Div 1, Subdiv A (which includes ss 181 and 184 and Subdiv AA) is simply titled “Listing”. This suggests a single, holistic process, as does the “simplified outline” of the subdivision in s 194A.

58    The second is that where a description of an ecological community is required in the listing process, Subdiv AA expressly provides for as much. This is less an expressio unius argument, as Jam Land characterised it, and more a further observation as to the intended meaning of “item” across Pt 13 as a whole. By way of example, the Minister must invite the nomination of items for inclusion in the List: s 194E(1). Such nominations must be by way of a comprehensible public document setting out information about the ecological community, including a description of the components, features, key species, and national distribution of the community: s 194E(3)(b).

59    More broadly, the statutory requirement for an approved conservation advice at all times while an ecological community continues to be listed (s 266B(1)) is also inconsistent with Jam Land’s case. It negates Jam Land’s contention that a sufficiently precise description of the relevant ecological community must be apparent from the List itself (and thus apparent from any item subsequently included in the List pursuant to s 184). The statutory regime, understood as a whole, envisages both the List and conversation advice being published, the latter being detailed, and the former being instructive in a general sense.

60    The contextual operation of those provisions is sufficient to reject the implied condition for which Jam Land contends. But I also accept the Minister’s alternate argument that even if s 184(a) required by implication a description of the ecological community with “sufficient certainty” or “precision”, that standard would apply to the Amending Instrument in its statutory context, that is, taken together with the Conservation Advice and other relevant extrinsic materials: s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).

61    Before concluding, it is worthwhile addressing directly Jam Land’s reliance on VAW (Kurri Kurri) in respect of the level of specificity required in the Amending Instrument. The “requirement of reasonable certainty” to which Spigelman CJ referred in that case was not and is not a requirement at large, applicable in any statutory setting; it was a requirement that emerged from a consideration of the relevant provisions of the relevant act in that case. The provision in question was s 23(1) of the Threatened Species Conservation Act 1995 (NSW), which provided that the committee in question “must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from [the relevant listing instrument], and must give reasons for the determination”. Section 23(1) involves a statutory task different from that in s 184 of the EPBC Act.

62    Further, and in support of the Minister’s position, VAW (Kurri Kurri) recognised that a degree of “vagueness and imprecision” in the definition of such a community is inevitable. The Approved Conservation Advice itself makes this point: see, for example, at p 4 [1.2]. Although there might be more apposite metaphors, as I said at the hearing, a grassland community is a moveable feast. Such imprecision must be tolerated if the object of the EPBC Act, namely, per s 3(1)(a), protecting vulnerable and changing ecological communities, is to be achieved: VAW (Kurri Kurri) (at 671–672 [231]–[234] per Hodgson JA, Spigelman CJ agreeing at 634 [4]).

Conclusion

63    In the light of the above, the Remediation Determination and, by extension, the Affirmation Determination, insofar as they relate to s 184, were validly made. Accordingly, Ground One must fail.

E.2    Ground Two

64    With respect to Ground Two, Jam Land contends that the delegates fell into jurisdictional error “by asking the wrong question”: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (at 351 [82]). It is said that the question posed by ss 480D and 480J, read with s 18(5)(b), was whether there was a significant effect on NTG-SEH as described in the Amending Instrument.

65    Two elements to this argument emerged: first, the contention that the delegates failed to consider the Schedule to the Amending Instrument; and second that the delegates placed inappropriate weight upon a “non-legislative document”, being the Conservation Advice, in lieu of looking at the Amending Instrument. Senior counsel for the Minister helpfully described these two limbs as “two sides of the same coin”. Indeed, the legal basis of Ground Two is difficult to discern, as Jam Land conceded, by way of the Agreed Background Facts (at [14]), that there was no contest as to whether either delegate had the state of mind required by ss 480D(1) and 480J(1) respectively. Furthermore, no “irrelevant consideration” ground was put. As such, the question is whether the delegates properly executed the statutory task before them by going beyond the description of NTG-SEH in the Amending Instrument.

Consideration

66    This is, once again, a matter of statutory construction. The construction of the statute in Section E.1 above is a complete answer to Ground Two. There is no warrant to read into s 480D a restriction to consideration of only the Amending Instrument.

67    Even if I am wrong as to Ground One, Ground Two must also fail for the following reasons.

68    First, it is not correct that the delegates did not have regard to the Schedule to the Amending Instrument when making the Remediation Determination and in making the Affirmation Determination. The Amending Instrument is referred to in the footnotes to [12] of the brief provided to both delegates. As I said recently in the context of judicial review in Roberts v Attorney-General (Cth) [2022] FCA 574 (at [43]), a cynic may speculate that such briefing documents and records of executive decision-making may sometimes suggest that what was going on was some sort of kabuki dance. But such an inference should not be drawn lightly, not least where the statute does not bestow upon any one source greater credence than another.

69    Secondly, and in any event, it was not necessary for a copy of the Amending Instrument to be included in and specifically referred to in the delegates’ respective briefs. In Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2007] FCA 1480; (2007) 243 ALR 784 (at 798 [54]), Stone J rejected an argument that a delegate had not considered the relevant legislative instrument in the following terms:

The applicant correctly points out that what constitutes a listed community must be determined by reference to the legislative instrument that included it in the list established under s 181 … The applicant points to the documents listed by the delegate … and notes that the instrument is not mentioned. One cannot, in my view, support the conclusion that the delegate did not consider the legislative instrument from that list. It is merely a list of the evidence and materials on which she based her finding of fact and which were included in the brief from the Department. It was no more necessary for the delegate to include the instrument in that list than it was necessary for her to include to [sic] the Act.

70    Thirdly, if there was any doubt, s 480J(3) of the EPBC Act is definitive. The section expressly states that, in deciding what action to take in relation to an application for reconsideration of a remediation determination, the Minister may “take account of information and comments from any source the Minister considers appropriate”. Jam Land has not attempted to explain why or how it was not a matter for each delegate to sift through the material and determine the useful sources.

71    In other words, a delegate of the Minister would not be acting inconsistently with the description in the Schedule to the Amending Instrument if that delegate also considered the Conservation Advice when identifying an ecological community. Even if it is the case that the listing itself comprises only the name of the community and the words in the Schedule, no violence is done to the statutory regime if a delegate prioritises the approved conservation advice when, as senior counsel for the Minister put it, walking across a plot of land, and wondering: “Is that part of the paddock included or not?”

Materiality

72    Finally, the threshold of materiality was raised during oral submissions with respect to Ground Two. This is, in my view, the only element of Ground Two in respect of which the expert evidence could provide guidance to the Court. This is of no moment, however, given my finding that there was no jurisdictional error. As such, it is unnecessary to engage with the submissions of the parties on materiality beyond the following brief remarks.

73    An error is material if the decision that was in fact made could have been different had the relevant condition been complied with as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined: Nathanson v Minister for Home Affairs [2022] HCA 26 (at [32] per Kiefel CJ, Keane and Gleeson JJ, Gageler J agreeing). In other words, materiality is established if the error deprived the applicant of a realistic possibility of a different outcome: Nathanson (at [1] per Kiefel CJ, Keane and Gleeson JJ, Gageler J agreeing).

74    The High Court had not yet handed down Nathanson at the time of the hearing, and as such Jam Land primarily relied on MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (at 454 [37]–[38] per Kiefel CJ, Gageler and Keane JJ) to assert that, on the counterfactual before the Court, a different decision could have been reached if the delegates had looked at the Schedule to the Amending Instrument instead of the Conservation Advice. The difference is said to lie in a “default clause” which appears in the Conservation Advice but not in the Amending Instrument, and provides as follows:

Sites that are difficult to determine as natural or derived grassland should be considered to be part of NTG–SEH, if they otherwise meet the Description and Key Diagnostic Characteristics.

75    Even if I were to consider the expert evidence on this point, both experts agreed during cross-examination that applying the “default clause” is consistent with the Schedule to the Amending Instrument (T29.11–27), and agreed in the Joint Report (at [27(a)]) that:

If a particular assemblage of species meets any description of NTG-SEH in the NTG-SEH Conservation Advice, then it will also meet the description of NTG-SEH in the Schedule to the Listing Instrument.

76    As such, to the extent it matters, I am not satisfied a different decision could have been made.

E.3    Ground Three

77    Finally, Ground Three arises out of s 480E(1), which provides that a remediation determination must “specify”, inter alia, the impugned action (s 480E(1)(b)) and the remediation action required to be taken (s 480E(1)(d)). It is said that the Remediation Determination is invalid because it did not comply with s 480E, and that the Affirmation Determination is also invalid as a consequence. Jam Land’s statement of claim organises this alleged failure into seven discrete “condition[s] on validity”.

78    Jam Land submits that the verb “specify”, in the context of statutory notices, requires that the matters be specified with “clarity and precision”: Vanstone v Clark [2005] FCAFC 198; (2005) 147 FCR 299 (at 306 [13] per Black CJ). It is said that “vague generalities” and articulation “by inference” rather than “direct statement” are insufficient: Tickner v Chapman (1995) 57 FCR 451 (at 457 per Black CJ); Jolly v Yorketown District Council (1968) 119 CLR 347 (at 352 per McTiernan J).

79    Further, it is asserted that because contravention of a remediation determination is itself a civil penalty offence under s 480M, and because the Court can compel someone to comply with a remediation determination pursuant to s 480L(2), precision is to be expected.

Consideration

80    The conditions on validity advocated for by Jam Land cannot be accepted because s 480E provides only that a remediation determination must specify: (1) the responsible person; (2) the impugned action; (3) the applicable civil penalty provision; and (4) the action that the responsible person is required to take to remedy the misconduct: s 480E(1)(a)–(d). The Remediation Determination did each of these things. The responsible person was specified (Jam Land), as was the action (the spraying activities referred to in [1]), the applicable civil penalty provision (s 18(5)), the required remediation action (in “Schedule 1”, in particular at [3]); and the “damage”, namely the removal of “up to 28.5 hectares of the grasslands on 30 October 2016 which formed part of the NTG-SEH” (as explained in the Remediation Determination (at [3]):

(3)    The spraying activities referred to in paragraph (1) caused the removal of up to 28.5 hectares of grasslands within the property forming part of the Natural Temperate Grassland of the South Eastern Highlands ecological community, being a listed threatened ecological community included in the critically endangered category for the purposes of section 18(5) of the EPBC Act.

81    I am unconvinced by Jam Land’s contention that the phrase “up to 28.5 hectares” is necessarily a vice. While a peculiar expression, what was meant is sufficiently plain, and as explained in the context of Ground One, some degree of vagueness and imprecision is to be expected in cases of this kind.

82    Moreover, if there was any doubt, the Remediation Determination provided further detail by providing for “the preparation, and submission to the Minister for approval, of a plan for taking action, and require action to be taken in accordance with the plan as approved by the Minister” pursuant to s 480E(2)(e). The Minister has the discretion as to whether to do so. Jam Land’s submission that the requirement for a “Mitigation Management Plan” is “inherently vague” founders upon a close reading of the relevant provisions, which provide that such a plan may but need not be provided.

83    The further two points raised by Jam Land and reproduced at [79] above are of no moment. The first contention is neither here nor there, as the unequivocal statutory language in s 480E(1) sets the compulsory metes and bounds of a remediation determination. The second contention, being the invocation of s 480L, also does not provide contextual support for the reading of s 480E urged by Jam Land. Section 480L evidently is a power that would only be exercised by this Court in a way that involved the fashioning of relief as was appropriate in the particular circumstances of the case, but there is no reason to think an order would be made in terms that would not comply with the usual requirements of specificity.

84    As such, Ground Three must be rejected.

85    I should note for completeness an issue with respect to Ground Three that was the cause of some distraction. That issue arose in the Minister’s written submissions served on the evening of 25 July 2022, just over two days before the hearing.

86    In her written submissions, the Minister contended that the determinations “were in fact understood by Jam Land”, by reference to events after the making of each determination. The argument was to the effect that Jam Land had a particular state of mind, and in fact understood the true meaning of the Remediation Determination. This point had not previously been raised.

87    Jam Land asserted, correctly, that conditions of mind like knowledge should be pleaded and particularised pursuant to r 16.43 of the Federal Court Rules 2011 (Cth), and that it had not addressed the point in its evidence. However, as I made clear at the hearing, this case would not be decided on an arid pleading point when any asserted evidentiary problem could be rectified. To this end, I invited Jam Land to file an affidavit as to the state of its knowledge and foreshadowed leave to reopen to allow it to be read would be granted. No such affidavit was filed.

88    But this was all inconsequential. It suffices to say that the question before the Court is whether the Remediation Determination specified the identified matters as required by s 480E(1). The determination was either valid or invalid when it was issued, and it either specified the matters when it was issued, or it did not. The fact that it was received by Jam Land and understood in a particular way has no bearing on this matter.

F    CONCLUSION

89    Jam Land’s application for judicial review of the Remediation Determination and the Affirmation Determination should be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    12 September 2022