Federal Court of Australia

Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be liberty to apply in relation to any order concerning the costs of the application.

3.    The liberty to apply reserved by these orders shall be exercised by a party providing on or before 31 January 2023, a short outline of submissions of no more than three pages stating the orders that are sought and any submissions in support of the application together with any affidavit in support. If the party seeks to be heard orally on the application the submissions shall so indicate.

4.    Within 14 days of any application pursuant to the liberty reserved by these orders any party against whom the orders are sought shall file any submissions in opposition of no more than three pages and any affidavit in opposition. If the party seeks to be heard orally on the application the submissions shall so indicate.

5.    Unless otherwise ordered, any application for cost orders shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    As part of a regulatory scheme to protect the environment and conserve biodiversity, the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) prohibits the taking of certain types of action without approval. The approval process commences with the referral of proposed action to the responsible Minister by the proponent. If the Minister decides that the proposed action is a 'controlled action' then there is a detailed procedure to be followed to consider the 'relevant impacts' of the controlled action. There are alternative pathways for assessment. Under the provisions of the Act, it is up to the Minister to decide the assessment approach to be used. One permitted approach is described as assessment on preliminary documentation. It results in the preparation of a recommendation report which is given to the Minister. The report must recommend whether or not the proposed action should be approved and any conditions that should be attached to the approval. The Minister then decides whether or not to approve.

2    In addition to specifying matters that the Minister must (and must not) consider in deciding whether or not to approve proposed action (see s 136), the Act provides that the Minister must 'take account of the precautionary principle in making' various decisions under the Act (including whether to approve proposed action) (see s 391(1)). 'The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage': s 391(2). It will be necessary to return to what is meant by the statutory requirement to take account of the precautionary principle.

3    The Act also provides that in deciding whether or not to approve proposed action and what conditions to attach to any approval the Minister 'must not act inconsistently with … a recovery plan': s 139(1)(b). A recovery plan is made by the Minister under particular provisions of the Act. It is made for the purposes of the protection, conservation and management of 'a listed threatened species' or 'a listed threatened ecological community'.

The proposed action in the present case

4    For some time, the Commissioner for Main Roads has planned to construct and operate 10 km of new freeway near Bunbury to the south of Perth in Western Australia. The proposed action was referred to the Minister who determined it to be controlled action. An assessment on preliminary documentation was undertaken. A recommendation report was prepared and provided to the Minister. On 29 June 2022, a delegate of the Minister approved the proposed action on conditions. Subsequently, the delegate provided reasons for the decision.

The challenge to the approval

5    The Friends of the Gelorup Corridor Inc (FOGC) challenge the validity of the approval. The substantive relief sought by FOGC is (a) an injunction under s 475(2) of the Act or prohibition restraining any action pursuant to the approval; and (b) orders quashing the approval.

Key aspects of the reasons and conditions

6    The reasons given by the Minister's delegate for the approval accepted that the proposed action was likely to have a significant impact on a number of ecological communities and species. It addressed the respects in which the proposed action would clear banksia woodlands (endangered), tuart woodlands (critically endangered), black-stripe minnow habitat (endangered), foraging habitat and potential breeding habitat for three species of black cockatoo (vulnerable and endangered) and western ringtail possum habitat (critically endangered). The reasons explained why, in the view of the delegate, the proposed action if approved subject to certain conditions, would not have an unacceptable impact on the communities and species as described above. The reasons accepted the view of the department expressed in the recommendation report that the proposed clearing was not likely to result in a significant impact to other listed species because they were not present within the proposed action area.

7    For present purposes, the following conditions of the approval assume significance:

(1)    conditions to the effect that the Commissioner must submit various management plans which must specify certain matters to the Minister's satisfaction; and

(2)    conditions requiring the Commissioner to submit to the Minister an offset strategy which meets the requirements of a published departmental policy entitled the Environmental Offsets Policy 2012 (Offsets Policy) and to implement that strategy.

The basis for the challenge to the approval

8    In written submissions, FOGC identified a number of bases upon which the approval was challenged. They were put in the following terms:

(1)    the conditions requiring the submission and approval of the management plans are invalid as they impermissibly defer the substantive evaluative task to be undertaken by the Minster's delegate until after the approval was given;

(2)    the conditions requiring the offset strategy and offset management plans are likewise invalid. They also lack any specificity or detail and consequently do not have the necessary certainty to be valid conditions;

(3)    the Minister's delegate did not lawfully consider the precautionary principle as required by the Act;

(4)    the Minister's delegate failed to consider lawfully the Commissioner's environmental history or failed to make any necessary inquiry to enable the decision whether to approve to be made on a probative basis or both; and

(5)    the decision to approve is inconsistent with a recovery plan for the western ringtail possum.

9    A separate basis for the application to the effect that the decision by the delegate not to publish the proposed approval decision and conditions before proceeding to grant the approval was legally unreasonable or infected with an improper purpose was abandoned at the commencement of the hearing.

10    Each basis for the challenge to the approval (listed as (1) to (5) of above) was advanced as supporting alternative claims of error for the purposes of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), alternatively s 39B of the Judiciary Act 1903 (Cth). As has been noted, the claim to injunctive relief was also advanced under s 475(2) of the Act. It confers jurisdiction on this Court to grant an injunction restraining a person from engaging in conduct constituting an offence or other contravention of the Act.

11    It was claimed that each basis for challenge, if upheld, would demonstrate invalidity in the approval by reason of jurisdictional error or a basis for relief under the Administrative Decisions (Judicial Review) Act. It appeared that the injunction under the Act was sought on the basis that acting in reliance upon an invalid approval could be prevented by an injunction under s 475(2) of the Act. Therefore, the principal question for determination is whether any of the five articulated bases for the challenge should be upheld.

Outcome

12    For the following reasons each of Claims (1) to (5) has not been established and the application by FOGC should be dismissed. The parties are yet to provide submissions as to any costs orders. There will be orders to provide for any submissions as to costs and, unless otherwise ordered, any issue as to costs will be dealt with on the papers.

Claim 1: The management plans impermissibly deferred the substantive evaluative task

13    Claim 1 was one of the matters previously advanced by FOGC in support of an interlocutory application for injunctive relief. On 15 August 2022, I determined that the application for an interlocutory injunction should be dismissed: Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944. Save as to one aspect, I concluded that the nature of the conditions as to the management plans did not provide an arguable basis for the claim that the Minister deferred part or all of the required evaluation to the later point in time when the content of the plans was to be considered. I remain of that view for the reasons I expressed in refusing the interlocutory application: at [53]-[57].

14    However, as to one aspect, I concluded that the claim was arguable. It concerned the aspect of condition 8 of the approval which required the Commissioner to specify to the Minister's satisfaction that the measures in the required fauna management plan would 'avoid, mitigate and manage impaction of the action on listed threatened species during clearance, construction and operation'. It had been contended for FOGC that consideration as to whether such a plan could 'avoid, mitigate and manage' such 'impaction' was a matter that formed part of the evaluative task to be undertaken in considering whether to approve the controlled action. Further, so it was submitted, it could be inferred from the form of the condition that no such evaluation had been undertaken. As to that claim, on the interlocutory application I found as follows (at [58]):

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.

15    I note that the reference to 'habitat management plan' was in error and should have been a reference to the fauna management plan (which was the plan the subject of condition 8).

16    Since the hearing of the interlocutory application, the delegate of the Minister has provided reasons for the approval. It is apparent from those reasons that the delegate had regard to the views expressed by officers of the Minister's department in the recommendation report concerning the management measures proposed by the Commissioner and had made amendments to the conditions concerning aspects of what was required by the fauna management plan. In short, the reasons demonstrate consideration of what the fauna management plan would deliver and the matters that needed to be stated in condition 8 in order for the delegate's expectations to be reflected in the content of the plan when approved. Though delivered subsequently, they are expressed to be the reasons for the delegate's decision on 29 June 2022 to approve the proposed action by the Commissioner. They are evidence of those reasons.

17    At the final hearing it was submitted that a deferral of the required evaluation might also be demonstrated if the conditions are 'generalised or vague, perhaps doing little more than parroting statutory language'. In other words, it was said that a decision by the Minister to approve on the basis of conditions the content of which was so uncertain or nebulous that it could be inferred that the evaluative aspects of the deliberative task had not been performed would provide a separate pathway to demonstrating that the statutory deliberative task had not been completed at the point of giving an approval. In effect, the contention was that the generality or vagueness of the conditions would reveal that the required deliberation as to what kind of condition would be sufficient had not been undertaken. Put another way, due deliberation would manifest in conditions that were sufficiently particular to expose an engagement with the issues.

18    I am not persuaded that this contention exposes a different pathway to demonstrating error to that which I determined had not been established at the time of the application for an interlocutory injunction. What must be shown in order to demonstrate deferment of the deliberative task is that the nature of the conditions is such that it may be inferred that the Minister has made a decision without having formed a view as to precisely what must be done in order for the approval to be given. If a view has not been formed as to what will be required by the conditions (and a satisfaction that the requirement can and will be met) then it cannot be the case that the approval has been informed by the amelioration that might be effected by the management plans. There will be an unlawful deferment of that part of the task such that the required deliberation is not undertaken until a plan is presented for approval under the condition. The generality with which a condition is expressed will be one aspect of considering whether there has been a deferment of the evaluative task. It is not a separate pathway. Nor does it bespeak a different kind of error.

19    For those reasons, Claim 1 does not demonstrate reviewable error.

Claim 2: The offset strategy impermissibly deferred the substantive evaluative task

20    Claim 2 was based upon similar contentions to those which founded Claim 1 save that those contentions were applied to the delegate's approach to the conditions of the approval that were concerned with offsets.

21    The Offsets Policy published by the Minister's department is dated October 2012. It defines offsets as 'measures that compensate for the residual adverse impacts of an action on the environment'. It explains that 'where appropriate' offsets are considered during the assessment stage of an environmental impact assessment under the Act and that they are used to 'counterbalance' the impacts of action that remain after the adoption of the primary strategies of avoidance and mitigation measures. Offsets 'compensate for any residual significant impact'. The Offsets Policy explains how the suitability of a proposed offset is considered. It explains that:

Offsets should align with conservation priorities for the impacted protected matter and be tailored specifically to the attribute of the protected matter that is impacted in order to deliver a conservation gain. For instance, if the proposed action is likely to have impacts on foraging habitat for a particular protected matter, then the offset should create, improve, protect and/or manage foraging habitat.

22    The Offsets Policy describes how 'direct offsets' must deliver measurable conservation gains that account for a minimum of 90% of the offset requirements. It states that:

A conservation gain may be achieved by:

•    improving existing habitat for the protected matter

•    creating new habitat for the protected matter

•    reducing threats to the protected matter

•    increasing the values of a heritage place, and/or

•    averting the loss of a protected matter or its habitat that is under threat.

23    The Offsets Policy also describes other 'compensatory measures' that are not direct offsets.

24    There are provisions of the Offsets Policy that describe how and when to raise the possibility of offsets. They refer to the 'decision stage' in the following way:

Following assessment, the decision maker considers the offset proposal in deciding whether the proposed action should be approved. In some cases, a suitable offset may not be proposed or available and a decision on the overall acceptability of the project will need to be made.

…

Offset requirements are included as a condition of approval under section 134 of the EPBC Act.

25    The Offsets Policy also refers to the 'post-approval stage', stating:

If an approval has been granted that incorporates offsets into the conditions of approval, the proponent is responsible for ensuring that the offsets are delivered in accordance with the approved conditions. The department has an active monitoring and audit program to ensure that conditions of approval are implemented. Where a proponent becomes aware that they may not be able to fulfil a condition of approval, they should approach the department in the first instance to discuss the matter and see what options are available to remedy the situation. Breaches of approval conditions, including those relating to offsets, can incur significant penalties.

26    The Offsets Policy refers to a separate guide by which the requirements of the policy are given effect. The expression of those requirements begins in the following way:

Offsets must directly contribute to the ongoing viability of the protected matter impacted by the proposed action, and deliver an overall conservation outcome that improves or maintains the viability of the protected matter as compared to what is likely to have occurred under the status quo, that is if neither the action nor the offset had taken place.

Offsets should be tailored specifically to the attribute of the protected matter that is impacted in order to deliver a conservation gain. For example, if the impact is the removal of foraging habitat for a listed threatened bird species, then an appropriate offset would be creating new similar habitat through re-vegetation works, improving the quality of existing foraging habitat for the species, and/or protecting existing foraging habitat though putting a conservation covenant on the title of the land. If an impact decreases the nesting success of a listed threatened turtle species due to light pollution, then an appropriate offset may be increasing the birth rate of that same species in a nearby location through threat abatement activities such as reducing feral pig predation on turtle nests.

(original emphasis)

27    As to the offsets that are required for actions that may have a significant impact on protected matters with a higher conservation status, the Offsets Policy says:

Due to the higher risk involved with protected matters of greater conservation status, the offsets required for those protected matters with higher conservation status must be greater than those with a lower status. For listed threatened species and ecological communities, this is calculated in the Offsets assessment guide by using International Union for Conservation of Nature data on the probability of annual extinction for different categories of threatened species.

28    The Offsets Policy describes the approach to risk in the following terms:

The use of offsets as a compensatory measure through the assessment and approval process involves two levels of risk. The first, and highest, level of risk is that the impact on the protected matter will be too great and that an offset will not be able to compensate for the impact. This risk is addressed through the assessment process.

The second level of risk relates to whether individual offsets are likely to be successful in compensating for the residual impacts of a particular action over a period of time. It is this risk that is considered in determining a suitable offset and has direct bearing on the scale of the offset required. The magnitude of a suitable offset will increase proportionately to the risk posed to the protected matter by the proposed action. The relationship between risk and the scale of offset required is demonstrated in Figure 3 above.

29    There are other requirements expressed in the Offsets Policy for the offsets (a) to be additional to what is required by other regulation; (b) to be efficient, effective, timely, transparent, scientifically robust and reasonable; and (c) to have transparent governance arrangements including being able to be readily measured, monitored, audited and enforced.

30    There is a necessary degree of generality to all of these requirements because the precise action that may be sufficient to meet the Offsets Policy will depend upon the particular circumstances. In particular, assessment as to whether the requirement for measured direct gains is met could not be undertaken without appropriate scientific study and assessment of the habitat, species and ecological communities likely to be affected by the proposed action. The likely effectiveness of the direct action will also require assessment. In that respect, the terms of the offsets assessment guide (referred to in the Offsets Policy) require detailed information that is scientifically supported to justify the conclusion in a particular case that the requirements of the Offsets Policy have been met. Even so, the nature of the concept that there may be a direct compensatory offset for a significant environmental impact that cannot be prevented or ameliorated requires evaluative and predictive judgments concerning complex and interactive processes that may not be well understood. The Policy provides only the most general guidance as to how such assessments are to be undertaken.

31    Further, it is clear from the terms of the Offsets Policy that it outlines a process by which a proponent will develop from the early stages any proposal for offsets, that any such proposal will be considered in the departmental assessment process and that the matters in the proposal will be brought to bear, in accordance with the Offsets Policy, at the point of deciding whether to approve the proposed action. The Offsets Policy is not expressed as a form of industry standard or guideline against which compliance with a requirement for offsets may be measured. Rather, it is expressed in terms that contemplate the bringing to bear of an evaluative decision-making process at the time of deciding whether to approve the proposed action to determine whether the specific offset proposal offers adequate compensation having regard to the risks and uncertainties and the level of statutory protection that should be afforded.

32    No part of the Offsets Policy contemplates that a condition may be imposed whereby the nature of the offsets (and in particular direct offsets) are identified (or supplemented or expanded in some way) after the approval process with the necessary consequence that the assessment as to whether the offsets proposed meet the policy is deferred.

33    FOGC claims that the course that was adopted in the present case simply deferred the evaluation of the offsets until after the provision of both the offset strategy and the offset management plans as outlined in the conditions. The conditions were said to do little more than repeat at the highest level of generality the steps to be taken without the conditions revealing the particular ways in which offsets may be provided. In short, it was claimed that the conditions of the approval concerning offsets do not specify what kind of offsets might be provided to meet the conditions. All the work was said to be left to the Offsets Policy. The general terms in which the policy was expressed were said to mean there could be no expectation as to what compliance with the policy might look like (and therefore no ability on the part of the delegate to evaluate whether the approval should be given on the basis of offsets).

34    It is not in dispute that the offset conditions were imposed in circumstances where the reasons make plain that the delegate had determined that there were residual significant impacts that required compensatory measures to be implemented by the Commissioner by way of offsets. The Commissioner had prepared and submitted to the Minister's department a detailed proposal as to offsets. The Commissioner's proposal set out the basis upon which the Commissioner sought to demonstrate that there were measurable direct offsets to compensate for the residual significant effects of the proposed action. Further, in the recommendation report provided to the delegate, the department had analysed the proposed offsets and identified a number of respects in which the offsets proposed by the Commissioner were not considered to be sufficient.

35    The reasons of the delegate found that the compensatory measures proposed by the Commissioner did not meet the Offsets Policy in the following respects:

(1)    the proposed compensatory measures in respect of banksia woodlands 'did not include details of an offset package in accordance with the Offsets Policy' (para 54):

(2)    the proposed compensatory measures in respect of black cockatoos 'did not meet the Offsets Policy' and 'did not … provide a 100% direct offset … and that further development was required', with the delegate finding specifically (para 90) that it:

a.    did not meet principles 1, 3, 4 and 5 concerning:

i.    the delivery of a conservation outcome proportionate to the size and scale of the residual impacts on protected matters

ii.    the level of protection that applies to a protected matter, and

iii.    the risks of the offset not succeeding.

b.    did not meet principle 8, in that governance arrangements for the future offset were not clear.

c.    did not meet principle 9, in that the scientific basis for the proposed offsets was not, I agreed, fully justified.

(3)    the proposed offset management activities to support western ringtail possums into the future had not been proposed to manage residual impacts due to mortality of an unknown proportion of the 49 to 72 possums displaced by clearing which will or was likely to occur (para 124), the offset strategy proposed was not consistent with the Offsets Policy' and the proposed offset would require 'further development to adequately resolve residual impacts of the type outlined in conservation advices, including potential mortality' (para 125).

36    The conditions that were imposed concerning offsets were as follows:

Environment Offset Requirements

Offset Strategy

14.    To compensate for the residual significant impact on Black Cockatoos, Western Ringtail Possum, Banksia Woodland TEC and Tuart Woodlands and Forests TEC, the approval holder must submit to the Department, for approval by the Minister, an Offset Strategy within 6 months of commencement of the action. The Offset Strategy must, within 9 months of commencement of the action, meet the requirements of the Environmental Offsets Policy to the satisfaction of the Minister. The approval holder must implement the Offset Strategy approved by the Minister.

15.    The Offset Strategy must:

a.    identify a suitable environmental offset(s) for the impacts on listed threatened species and listed ecological communities

b.    include summary information on the impacted areas and detailed baseline information on the proposed offset(s) and commit to achievable ecological benefits, and timeframes for their achievement, for the proposed offset(s)

i.    for Black Cockatoos, this must include the total number suitable nest hollows identified during the pre-clearance survey specified in condition 7 and the number of suitable nest hollows and trees with a diameter at breast height of greater than 500 mm cleared.

c.    describe the monitoring program(s) to be implemented that will determine progress towards, attainment of and maintenance of the ecological benefits for the Black Cockatoos, Western Ringtail Possum, Banksia Woodland TEC and Tuart Woodlands and Forests TEC at the proposed offset(s)

d.    specify how and at what frequency offset(s) management results, monitoring program findings and assessments of ecological benefits will be reported to the Department and the public

e.    detail how the offset(s) will be protected, and ecological benefits maintained, in perpetuity.

16.    If the Offset Strategy has not been submitted for approval by the Minister within 6 months of commencement of the action, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Offset Strategy is submitted for approval by the Minister, or with the Minister's written agreement.

17.    If, at least 6 months after commencement of the action, the Minister notifies the approval holder, in writing, that the Minister refuses to approve the Offset Strategy because the Minister is not satisfied that it meets the requirements of the Environmental Offsets Policy, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Minister notifies the approval holder that the Minister approves the Offset Strategy, or otherwise with the Minister's written agreement.

Offset Management Plan(s)

18.    The approval holder must, within 12 months of commencement of the action, submit to the Department for approval by the Minister, an Offset Management Plan for each of the offset sites specified in the approved Offset Strategy. Each Offset Management Plan must, to the satisfaction of the Minister, meet the requirements of the Environmental Offsets Policy within 15 months of commencement of the action. Each Offset Management Plan must meet the requirements of the Environmental Management Plan Guidelines and include the following:

a.    a summary of the residual impacts to protected matters that will be compensated for by the offset. This summary must include the area(s) of habitat for protected matters and its condition and quality at all impact sites which the particular offset is to address

i.    for Black Cockatoos, this must include the total number suitable nest hollows identified during the pre-clearance survey specified in condition 7 and the number of suitable nest hollows and trees with a diameter at breast height of greater than 500 mm actually cleared.

b.    the relevant protected matters and a reference to the EPBC Act approval conditions to which the particular Offset Management Plan refers

c.    management actions, and the timing of those actions, that will be implemented to achieve the ecological benefits for relevant protected matters

i.    for Black cockatoos, this must include details of the design, location and methods of installation and maintenance for 10 years following installation, of artificial hollows totalling at least 3 times the number of suitable nest hollows cleared under condition l(a)(ii.).

d.    a table of commitments made in the Offset Management Plan to achieve the ecological benefits for relevant protected matters, and a reference to where the commitments are detailed in the Offset Management Plan

e.    reporting and review mechanisms, and documentation standards that will be implemented to inform others annually regarding compliance with management and environmental commitments, and attainment and maintenance of the ecological benefits as specified in the Offset Management Plan

f.    an assessment of risks to achieving the ecological benefits and what risk management strategies will be applied to address these

g.    a monitoring program, which must include:

i    evaluating evidence that effectively determine progress towards, attainment of and maintenance of the ecological benefits for the protected matters

ii.    measurable performance indicators to monitor attainment of the ecological benefits for the protected matters

iii.    trigger values for corrective actions

iv.    the timing and frequency of monitoring to detect trigger values and changes in the performance indicators.

h.    proposed corrective actions to ensure ecological benefits for the protected matters are attained or maintained if trigger values are reached or performance indicators not attained

i.    links to referenced plans and applicable conditions of approval (including State approval conditions) if any.

19.    The approval holder must implement each approved Offset Management Plan for the life of the approval.

Note: A single Offset Management Plan providing the above in respect of all offset sites specified in the approved Offset Strategy may be submitted in place of separate Offset Management Plans.

20.    If the Offset Management Plan has not been submitted for approval by the Minister within 12 months of commencement of the action, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Offset Management Plan is submitted for approval by the Minister, or with the Minister's written agreement.

21.    If, at least 12 months after commencement of the action, the Minister notifies the approval holder, in writing, that the Minister refuses to approve the Offset Management Plan because the Minister is not satisfied that it meets the requirements of the Environmental Offsets Policy, all clearing and/or construction must cease immediately. Clearing and/or construction may only restart after the Minister notifies the approval holder that the Minister approves the Offset Management Plan, or otherwise with the Minister's written agreement.

[original emphasis]

37    The Act makes no express reference to offsets nor does it provide for the making of an offsets policy. Therefore, the Offsets Policy has no statutory character. However, it was accepted by FOGC that a requirement for offsets could be imposed as a valid condition of an approval. This position properly reflects the provisions of the Act, particularly s 133 and s 134.

38    The Minister has no power to impose conditions generally. The Act structures the circumstances in which the Minister may attach a condition to an approval and 'identifies the nature or types of conditions that may be attached': Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301 at [187].

39    In the above circumstances, the contentions advanced by FOGC to support Claim 2 may be summarised as follows:

(1)    the delegate decided that there were residual significant impacts that required compensatory measures by way of offsets and that the direct offsets proposed by way of compensation by the Commissioner were insufficient;

(2)    the conditions did not specify with any precision what was required by way of offsets;

(3)    the Offsets Policy was itself a very general document which did not provide adequate direction as to what was required by way of offsets in order to satisfy the policy;

(4)    in circumstances where the particular offset measures and requirements for management of the offsets had not been specified in the conditions it could not be said that the decision to approve was informed by an understanding on the part of the delegate of what the offsets would be and therefore the substantive evaluative task (which required a consideration as to whether the offsets were sufficiently compensatory) had not been undertaken; and

(5)    the ultimate evaluation and decision to be made by the Minister as to whether the offsets are sufficient will take place outside (and after) the approval process specified in the Act because it will be undertaken when the Minister decides whether to approve the offsets policy and offset management plans of the Commissioner to be submitted under the offset conditions imposed in the present case.

40    Each of the above matters was relied upon to support the claim that the delegate had not completed the statutory task which required the delegate to evaluate whether the particular direct offsets that were proposed were sufficient to justify a decision to approve. As has been noted, it was claimed that the decision had to be made with an understanding of the offsets because they were an essential part of what had to be evaluated when considering whether the opposed action would have a significant environmental impact. The gravamen of the claim was that the terms of the Offsets Policy were too general for the delegate to be able to know with any particularity what the offsets might be and therefore a key part of the evaluative task was improperly deferred.

41    As I have explained, the Offsets Policy itself required the evaluation as to whether there were compensatory offsets to be undertaken at the time of considering whether to approve the proposed action. The Offsets Policy outlined a process by which the proponent was required to submit the proposed offsets for evaluation as part of the approval process.

42    In considering whether there was a deferment of the part of the task that involved consideration of the adequacy of the proposed offsets it is necessary to focus upon the reasoning process of the delegate and the context in which the decision was made to impose the conditions concerning offsets (particularly that aspect which provided for later evaluation by the Minister whether the proposals by the Commissioner satisfied the Offsets Policy).

43    Importantly, this was not a case where offsets had been proposed by the Commissioner and the whole of the evaluation of offsets was deferred for evaluation under a process set out in the conditions. Nor was it a case where the requirement for offsets was introduced for the first time as a condition of the approval (without any proposal from the Commissioner). Rather, as has been observed, the Commissioner prepared a very detailed offsets proposal. It included the information required by the offsets assessment guide as referred to in the Offsets Policy. The Commissioner's proposal was evaluated by the department and was the subject of the recommendation report received by the delegate. All relevant materials including the Commissioner's offset proposal were before the delegate and were considered by the delegate. The delegate's reasons explained the particular respects in which the Commissioner's proposal was deficient. Necessarily implicit in the reasoning was a determination that if adjustments were made to meet the concerns identified then, in the considered view of the delegate, there would be an offsets proposal that would provide compensatory measures that would ensure that the objectives of the Act were met. This was not a case where all or much of the offsets proposed were rejected as not providing any compensatory direct offset. Nor was it a case where there was no real offsets proposal and the whole question of offsets was deferred by imposing conditions.

44    In those particular circumstances, I am not persuaded that there was a deferment by the delegate of the deliberative task or that the terms in which the Offsets Policy are expressed would deprive the conditions as to offsets of sufficient certainty as to their operation. In circumstances where there was an offsets proposal from the Commissioner and much of that proposal was accepted as providing an adequate measurable compensation gain, it is evident that the conditions were directed towards ensuring identified improvements to the proposed offsets. The scope of those required improvements was confined and described in the reasons. Therefore, it could not be concluded that the delegate did not have in mind the nature and extent of the particular direct actions that would be undertaken by way of offset when deciding to approve the proposed action.

45    In written submissions for FOGC it was said that there was significance in the fact that the conditions were based upon reasoning by the delegate to the effect that there was confidence that the Commissioner would develop a satisfactory offsets strategy, yet (despite that confidence) conditions were included that required the Commissioner to stop work under the approval if the conditions were not satisfied. This was said to indicate that the delegate was not satisfied (or could not be satisfied as a matter of legal reasonableness) that the conditions would be met. I do not accept those submissions. Even in circumstances where conditions are expected to be met, it is prudent to establish a mechanism by which to secure compliance with the conditions. The conditions in the present case that provided that work must stop if the offsets strategy and offset management plans have not been submitted and approved were of that character. They do not provide a foundation for an inference that the delegate expected the Commissioner to be unable or unwilling to comply.

46    FOGC also sought to contrast the form of the offset conditions in the present case with those considered by Cowdroy J in Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; (2013) 218 FCR 491. They were quoted at [34] of the reasons in that case and were as follows:

9.    The person taking the action must register a legally binding conservation covenant over offset areas of no less than:

a.    9,334 ha of an equivalent or better quality of habitat for the regent honeyeater, swift parrot and greater long-eared bat; and

b.    5,532 ha of an equivalent or better quality of the White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community.

Note: the 5,532 ha of White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community may be included within the 9,334 ha of offset area for the threatened species if it meets the listing criteria for the EPBC-listed critically endangered ecological community as defined in the EPBC listing advice for that community and the requirements of condition 9.

10.    The person taking the action must verify through independent review the quantity and condition class of White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community and the quantity and quality of habitat for the regent honeyeater, swift parrot and grater long-eared bat within all proposed offset areas including those proposed in the Environmental Assessment, as defined at Attachment C of these conditions, and any additional offsets as required at condition 9. Details of all independently verified offset areas must be submitted to the Minister for approval by 30 December 2013. The findings of the independent review must be published on the proponent's website.

11.    If the independent review finds that the offset areas do not meet the requirements of conditions 9, 12 a and 12 b, then additional areas must be included in the offset areas until all relevant criteria under these conditions are met.

12.    The offset area must be of an overall equivalent or better quality than the areas being cleared. This means:

a.    for White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland ecological community, offset areas must meet the definition of the ecological community described in the listing advice, and must be of an overall equivalent or better condition class than the areas being cleared, based on the proportion of each condition class represented and other relevant ecological attributes;

b.    for the threatened species, the quality of the habitat for the species, taking account of its ecological requirements, must be equivalent to or better than the areas being cleared.

13.    The mechanisms for registering a legally binding covenant must provide protection for the offset areas in perpetuity and be registered within 5 years of the date of this approval.

[original emphasis]

47    A challenge to the above conditions on the basis of uncertainty was unsuccessful. However, there is no sense in which the decision in that case determined that the form in which those conditions were imposed was required to be adopted in order for there to be sufficient certainty. The decision in that case does not assist in the resolution of Claim 2.

Claim 3: The delegate did not lawfully consider the precautionary principle

48    The claim made by FOGC concerning the precautionary principle was to the effect that the delegate only considered the principle when addressing the threat to the western ringtail possum if the proposed action was approved. This was said to be deficient because the Act required the precautionary principle to be considered as a factor that applied to each part of the delegate's evaluation and that regard to the reasons demonstrated that there had been no such consideration by the delegate.

49    FOGC's submission was based upon a particular view about the proper construction of the language used in s 391(1) when it required the Minister to 'take account of the precautionary principle in making a decision listed [in the table set out in s 391(3)]'.

50    For the Minister and the Commissioner, it was submitted that s 391 should not be seen as providing for a matter which must be considered as if it were a factor or thing that may count for or against approval or inform whether there should be particular conditions and, if so, in what terms. Rather, the precautionary principle was said to be a way of describing how to approach risk and uncertainty in undertaking the evaluative process. It directed the decision maker as to how to approach a particular type of deficiency in the available material, namely where there was scientific uncertainty as to whether the proposed action threatened serious or irreversible environmental damage. In such a case, the principle to be applied was to the effect that uncertainty should not be used as a reason to postpone a measure to prevent degradation of the environment.

51    So, FOGC saw the provisions in the Act concerning the precautionary principle as identifying a factor or matter to be considered. The Minister and the Commissioner saw those provisions as requiring the observance of a particular approach to the level of proof, particularly the degree of scientific certainty, that may be required before a risk of serious or irreversible environmental damage might be brought to account in the decision making process.

52    As the divergence in views reflects different positions as to what is meant by s 391, I will consider first the proper construction of s 391 and its role within the legislative scheme, particularly that part which concerns decisions of the kind made by the delegate in the present case. The principles to be applied are well known. The meaning to be given to statutory instruments is their contextual meaning; that is, the text of the statute should be considered whilst at the same time having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J).

53    I explained the relevant decision making scheme under the Act in my reasons on the application for an interlocutory injunction: at [7]-[20]. In the present instance we are concerned with an approval of a controlled action under s 133(1). Amongst other things, the approval must specify the action the subject of the approval and any conditions: s 133(2). Speaking broadly, the conditions that may be attached are those that are necessary or convenient to protect, repair or mitigate environmental damage: s 134. Section 136 then provides:

General considerations

Mandatory considerations

(1)    In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:

(a)    matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;

(b)    economic and social matters.

Factors to be taken into account

(2)    In considering those matters, the Minister must take into account:

(a)    the principles of ecologically sustainable development; and

(b)    the assessment report (if any) relating to the action; and

(ba)    if Division 3A of Part 8 (assessment on referral information) applies to the action - the finalised recommendation report relating to the action given to the Minister under subsection 93(5); and

(bc)    if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:

(i)    the documents given to the Minister under subsection 95B(1), or the statement given to the Minister under subsection 95B(3), as the case requires, relating to the action; and

(ii)    the recommendation report relating to the action given to the Minister under section 95C; and

(c)    if Division 5 (public environment reports) of Part 8 applies to the action:

(i)    the finalised public environment report relating to the action given to the Minister under section 99; and

(ii)    the recommendation report relating to the action given to the Minister under section 100; and

(ca)    if Division 6 (environmental impact statements) of Part 8 applies to the action:

(i)    the finalised environmental impact statement relating to the action given to the Minister under section 104; and

(ii)    the recommendation report relating to the action given to the Minister under section 105; and

(d)    if an inquiry was conducted under Division 7 of Part 8 in relation to the action - the report of the commissioners; and

(e)    any other information the Minister has on the relevant impacts of the action (including information in a report on the impacts of actions taken under a policy, plan or program under which the action is to be taken that was given to the Minister under an agreement under Part 10 (about strategic assessments)); and

(f)    any relevant comments given to the Minister in accordance with an invitation under section 131 or 131A; and

(fa)    any relevant advice obtained by the Minister from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in accordance with section 131AB; and

(g)    if a notice relating to the action was given to the Minister under subsection 132A(3) - the information in the notice.

Note: The Minister must also take into account any relevant comments given to the Minister in response to an invitation under paragraph 131AA(1)(b). See subsection 131AA(6).

Person's environmental history

(4)    In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval, having regard to:

(a)    the person's history in relation to environmental matters; and

(b)    if the person is a body corporate - the history of its executive officers in relation to environmental matters; and

(c)    if the person is a body corporate that is a subsidiary of another body or company (the parent body) - the history in relation to environmental matters of the parent body and its executive officers.

Minister not to consider other matters

(5)    In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider.

54    It can be seen that s 136 refers to matters that 'the Minister must consider' and describes matters that the Minister 'must take into account' in considering those matters. It then refers to matters that 'the Minister may consider' in deciding whether to approve. Finally, it provides that 'the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider'.

55    The provisions that follow s 136 specify matters that 'the Minister must not act inconsistently with' in deciding whether to approve the taking of action: see s 137 to s 140.

56    Significantly, s 391 is not included in this part of the legislation nor is there any reference to s 391 in the provisions that identify the matters that the Minister must or may consider, those which the Minister must not consider and the matters that the Minister must take into account in deciding whether to approve. Rather, s 391 is the opening provision in Chapter 6 of the Act which is concerned with the Act's administration and the enforcement of compliance with its provisions.

57    Section 391 also adopts a different form of wording to the provisions concerned directly with identifying the matters to be considered or taken into account in making a decision whether to approve. It uses the terminology: 'The Minister must take account of the precautionary principle in making a decision' (emphasis added). It does not refer to the precautionary principle as something that must be taken into account or to which there must be regard in making the decision. Further, s 391 describes a 'principle' not a 'matter'. It is concerned with a way of reasoning not with a particular topic or subject matter that might be considered in evaluating whether to approve. Finally, the list of decisions to which s 391 applies is extensive. It is not confined to decisions about whether or not to approve particular action. It includes decisions about whether to make various types of plans which will have legislative significance and about whether an action is a 'controlled action' (and therefore subject to the provisions of the Act requiring approval). Decisions of that kind require assessments that affect the scope of the regulation effected by the Act. It is understandable that the Act would ensure that decisions of that kind are guided by a particular view as to the degree of scientific certainty that is required to support the decision.

58    Therefore, (a) the language used in s 391 when compared to the provisions about the approval; (b) the particular context of s 391 within the overall scheme of the Act; and (c) the range of the decisions to which s 391 is applied, all support the position advanced by the Commissioner and the Minister. Indeed, the authorities as to the manner in which the precautionary principle is to be applied in environmental decision making support the conclusion that s 391 is imposing an obligation as to how evidence of serious environmental damage must be treated where there is scientific certainty and that it only applies where it has been determined that there is a lack of scientific certainty in respect of a particular matter. It is not a principle of general application in the sense that it is not taken account of unless there is scientific uncertainty.

59    The careful and detailed observations of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 concerning the precautionary principle are often cited when considering claims that there has been a failure to conform to a statutory requirement that incorporates the principle in some form. Reliance was placed upon those observations by FOGC. Relevantly for present purposes, they were as follows (at [128]-[141]):

The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate …

Two points need to be noted about the first condition precedent that there be a threat of serious or irreversible environmental damage. First, it is not necessary that serious or irreversible environmental damage has actually occurred - it is the threat of such damage that is required. Secondly, the environmental damage threatened must attain the threshold of being serious or irreversible.

Assessing the seriousness or irreversibility of environmental damage involves consideration of many factors …

…

Determining the existence of a threat of serious or irreversible environmental damage does not involve, at the stage of assessing the first condition precedent, any evaluation of the scientific uncertainty of the threat. That evaluation comes in the following steps of analysis.

If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate. The precautionary principle does not apply, and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage …

…

The second condition precedent required to trigger the application of the precautionary principle and the necessity to take precautionary measures is that there be 'a lack of full scientific certainty'. The uncertainty is as to the nature and scope of the threat of environmental damage …

Assessing the degree of scientific uncertainty also involves a process of analysis of many factors …

[original emphasis]

60    Ultimately, the precautionary principle was explained as a principle that shifted the burden of proof. Preston CJ described the manner of its operation in the following way (at [150]-[152]):

If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.

The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.

The function of the precautionary principle is, therefore, to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists …

61    Importantly for present purposes, the precautionary principle does not operate as a factor that will itself affect the outcome. Rather, it applies where there is a basis to conclude that there is a threat of serious or irreversible environmental damage and scientific uncertainty as to the nature and scope of the threat. In order for it to operate there must be material to be evaluated. The principle does not provide a basis for a decision in and of itself. It is properly seen as being directed to the quality of proof that is needed concerning a risk of environmental damage that might bear upon a particular decision. It operates in a similar manner to the direction to a jury to be satisfied beyond reasonable doubt. It sets a standard as to the level of certainty on which a decision may be based.

62    Further, it is important to consider the manner in which the precautionary principle is deployed in the Act. It is a matter that the Minister 'must take account of' in making a decision, to the extent that the Minister can do so consistently with the other provisions of the Act. Both the terminology requiring account to be taken of the principle and the recognition of the possibility that taking account of the principle may be inconsistent with a specific provision indicate that s 391(1) is doing more than requiring the Minister to advert to the possible relevance of the principle for the matter at hand. Indeed, Parliament may be directing the Minister to do more than understand and evaluate the way the precautionary principle may apply, leaving the Minister free to then choose whether to apply it or not. It may be requiring the Minister to deploy the principle (save where such a course would be inconsistent with another provision in the Act) because such terminology may require regard to a matter as a fundamental element in the decision making process: see Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [50]‑[56] (Parker J, Malcolm CJ and Anderson J agreeing); Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [60]-[62]; and Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [216]-[231]. For reasons which will emerge, it is not necessary to reach a precise conclusion as to this aspect. However, it may be noted that Moshinsky J has expressed the view that the requirement to take account is interchangeable with a requirement that a decision maker consider a particular matter: Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 at [33]. And in Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330 at [36], Tracey J expressed the view that: 'So long as the Minister, as he did in the present case, takes account of the precautionary principle, it is a matter for him to determine what weight is to be accorded to the principle having regard to the wide range of other considerations which he is also required to take into account'.

63    In State of Queensland (Department of Agriculture and Fisheries) v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310, Allsop CJ, Greenwood and Robertson JJ considered the use of the precautionary principle in the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMP Act). In that legislation, the precautionary principle was expressed as one of the 'principles of ecologically sustainable use' for the purposes of the legislation. The principles were deployed in a provision that stated: 'In managing the Marine Park and performing its other functions, the Authority must have regard to, and seek to act in a way that is consistent with … the principles of ecologically sustainable use'. On an appeal on a question of law in respect of a decision made by the Administrative Review Tribunal, it was claimed that the Tribunal erred in its application of the precautionary principle. As to that claim, the Court said (at [120]-[121]):

Although we agree, with respect, with the observations of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council … at [129] that it is not necessary that serious or irreversible environmental damage has actually occurred - it is the threat of such damage that is required - in the context of the present legislation we do not regard it as apposite in relation to the GBRMP Act to say, as his Honour said at [128] in relation to … different language …, that the precautionary principle 'is triggered by the satisfaction of two conditions precedent or thresholds'. Certainly, in our opinion, the decision-maker under the GBRMP Act, before applying the principle, must form the view that there are threats of serious environmental damage or that there are threats of irreversible environmental damage and that in those circumstances lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment. However, we regard the issue of whether there are threats of serious environmental damage as largely a matter of evaluative fact for the decision-maker, and not as a jurisdictional fact the correctness of which we may independently evaluate.

In our opinion, no error on the part of the Tribunal in this respect has been established. The relevant principle was considered by the Tribunal at [78]-[87] of its reasons and it proceeded on the basis that there was a threat of serious environmental damage but lack of full scientific certainty. …

64    It may be noted that the nature of the claim made in State of Queensland v Humane Society was that there had been error in understanding and applying the precautionary principle. It was not a claim that there was a failure to have regard to the principle. Therefore, it was not necessary for the Court to consider the character of the principle for the purpose of a claim of that kind. Nevertheless, it is of significance for present purposes that the Court approached the issue on the basis that the underlying question as to whether there were threats of serious or irreversible environmental damage was largely a matter of evaluative fact. Such an approach is consistent with the principle itself not being a factor to be brought into account but rather that it has a role to play where there is material which gives rise to its application. So, the question whether there was material that gives rise to the requisite risk was a within jurisdiction adjudicative task entrusted to the Tribunal. It was a matter to which the Minister was required to have regard by reason of the terms of the provisions concerned with the matters which the Minister must consider or to which the Minister must have regard. Section 391(1) was not the source of that requirement. Likewise, in the present case, the question whether there was material that gave rise to a need to apply the precautionary principle was a matter for the Minister's delegate. Further, there could be no relevant error unless the delegate failed to bear in mind (perhaps actually deploy to the extent there was no inconsistency with another provision in the Act) the precautionary principle if there was a risk of the requisite kind about which there was scientific uncertainty.

65    Recently, in Bob Brown Foundation Inc v Minister for the Environment (No 2), Moshinsky J considered a claim that a delegate of the Minister had failed to comply with her obligation under s 391(1) of the Act to take account of the precautionary principle, alternatively failed to apply the precautionary principle in deciding whether the proposed action was likely to have significant impact on the Tasmanian masked owl.

66    His Honour referred to the consideration of the precautionary principle by Preston CJ at [19]-[32]. Then, as has been noted, his Honour concluded that the requirement to 'take account' in s 391(1) is used interchangeably with a requirement that a decision-maker 'consider' a particular matter: at [33].

67    The decision under review in Bob Brown Foundation was a decision that the proposed action was not a 'controlled action'. The consequence was that an approval was not required and the regulatory oversight expressed in the Act did not apply. The delegate identified the precautionary principle and said that she 'took account of the precautionary principle' in making her decision: at [39]. In finding reviewable error, Moshinsky J, reasoned as follows (at [48]):

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

(original emphasis)

68    It can be seen that his Honour found as a matter of fact (by a process of inference) that there was a failure to consider the precautionary principle. His Honour went on to explain that there was a failure by the delegate to consider whether there were threats and that this was a failure to address the first condition precedent to the precautionary principle.

69    It seems to me, with respect, that there is some tension between his Honour's approach and the reasoning by the Full Court in State of Queensland v Humane Society. It may be accepted that the precautionary principle described in s 391(1) may only apply where there are threats of serious or irreversible environmental damage. However, it is not the principle itself that is the source of an obligation to consider whether there are such threats. Rather, the principle is that a lack of scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there is the requisite threat. If the decision to be made requires consideration as to whether there is a threat of serious or irreversible environmental damage then a lack of full scientific certainty cannot be used as a reason not to take a measure to prevent that outcome. If a particular decision to be made under the Act requires there to be regard to whether there is a threat of the requisite kind then it is largely a matter of evaluative fact for the delegate as to whether there is such a threat. If there is such a threat, then scientific uncertainty 'should not be used' to postpone a measure that would prevent that degradation (in the present case that measure being refusing to approve the proposed action).

70    In the present case, there is no issue between the parties as to whether the delegate was required to consider and evaluate the nature and extent of the adverse impacts that the proposed action was likely to have on the identified ecological communities and species. Nor is it suggested that there was a failure to consider those impacts. Rather, what is said is that irrespective of the nature of the findings made by the delegate as to the likely risk of impact, the delegate was required to consider the application of the precautionary principle. The contention advanced was to the effect that the reasons as to the impact on each and every community and species under consideration should have included a consideration of the precautionary principle. However, for reasons that have been given, it was a matter for the delegate to consider whether there was the requisite threat and only if there was such a threat was the delegate to take account of the precautionary principle and then only by putting to one side the lack of full scientific certainty as a reason why the proposed action should not be approved.

71    As has been noted, s 391 operated as an evidentiary principle not as an articulation of a substantive mater to which the decision-maker was required to have regard. The precautionary principle itself could not be a reason why a decision might be made to refuse to give an approval. Rather, the precautionary principle could only be the basis upon which material that demonstrates the requisite threat may be used as a reason for a decision made in order to prevent degradation to the environment even though there is a lack of full scientific certainty that the damage is likely to occur.

72    The distinction assumes significance in the present case because of the manner in which the delegate approached the precautionary principle in deciding to approve the proposed action.

73    As to the delegate's decision, the first aspect to note is that the decision made was to agree with the department's recommendation to approve the proposed action. The basis for that recommendation was set out in detail in the recommendation report. Reflecting that course, the reasons identify the respects in which the delegate agreed with the matters in the recommendation report and where the delegate took a different view. In a number of significant respects, the recommendation report identified environmental impacts. Much of the report dealt with assessing the significance of those impacts and compensatory offsets. It identified species and communities that were unlikely to be impacted by the proposed action. The report addressed the factors that were required by s 136 to be taken into account. It addressed the conditions and identified respects in which the proposed conditions, in the view of the department, did not fully manage or resolve the residual impacts.

74    The recommendation report referred to the precautionary principle in the context of considering the impact of the proposed action on the western ringtail possum, but not otherwise. The report stated (para 80) that:

The Department considers it appropriate to apply the precautionary principle and is of the view that an unknown proportion of the 49-72 WRP displaced by clearing will suffer mortality as a result of the action. The recovery plan and conservation advice for WRP identifies that WRP display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs (Attachments F2 and F15). The Department also notes that the recovery plan indicates high mortality experienced by translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers (Attachment F2).

75    As has been noted, the reasons engaged with the views expressed in the recommendation report. When it came to significant environmental impacts, the reasons were as follows:

(1)    as to banksia woodlands, the identified threats were described and the significant impacts described in the recommendation report were accepted (paras 43-47);

(2)    as to tuart woodlands and forests, there was a similar approach was adopted accepted the threats and impacts described in the recommendation report (paras 57-63);

(3)    as to black cockatoos, the reasons identified the relevant recovery plan and other conservation advice for the cockatoos. Again the threats and impacts described in the recommendation report were accepted (paras 74-80);

(4)    as to the western ringtail possum, the reasons identified the relevant recovery plan and other conservation advice (paras 100-101). They then expressed the view that 'threats to the [possums] are complex, interactive and often population specific' (para 102). The primary threats were identified (para 102). They observed that the area in which the proposed action was to be undertaken was within a key management zone set out in the recovery plan for the western ringtail possum (para 103). They set out the long-term vision of the recovery plan (para 104). They noted the limited success of population translocation as a means to preserve the western ringtail possum (para 105). They addressed in some detail the impacts in terms that had regard to the precautionary principle (paras 112, 114, quoted below);

(5)    as to the black-stripe minnow, the reasons noted the threats and impacts described in the recommendation report (paras 134, 136);

(6)    as to other species, the reasons expressed agreement with the department that the proposed clearing was not likely to result in a significant impact to other species that were identified as being likely to be affected because they were not present within the proposed action are (para 147); and

(7)    in dealing with 'Other Relevant Matters', the reasons began as follows:

In deciding whether or not to approve the taking of the proposed action, I took into account (amongst other matters) the principles of ecologically sustainable development as required under section 391 of the [Act]. In particular, as discussed above, I accepted the Department's recommendation that the principle applied to the Western Ringtail Possum.

76    Having regard to the form of the reasons and the manner in which they identified and engaged with serious threats I am unable to infer (as I was invited to by FOGC) that the delegate overlooked the possible application of the precautionary principle to aspects of the reasons that concerned impacts on species other than the western ringtail possum. Rather, the reasons as a whole indicate a considered view by the delegate as to where the precautionary principle might be appropriately applied and the application of the principle in that case where there was identified uncertainty as to the likely impact. In all other respects, the delegate approached the matter on the basis that the impacts had been established. No issue arose as to the certainty with which that conclusion may be reached, particularly no issue as to whether by reason of a lack of full scientific certainty the refusal of the approval should be 'postponed' (to use the language of the principle as stated in s 391(2)). Therefore, there was no occasion for any lack of scientific certainty to be used as a reason for allowing the approval in accordance with the precautionary principle.

77    It was submitted by FOGC that application of the precautionary principle required identification of the proportionate precautionary measures that needed to be taken in order to guard against the threat of serious or irreversible damage. For reasons that I have given this is not the correct approach. It involves giving the precautionary principle a kind of role that is not to be found expressed in the Act. The principle is not to be treated as a statement of a consideration to which there must be regard in making the evaluative decision whether to approve. Those matters are stated in the provisions that deal with the making of the decision. They include the principles of ecologically sustainable development and regard to environmental impacts of the proposed action. As has been explained, those matters were addressed by the delegate.

78    For those reasons, Claim 3 has not been made out.

Claim 4: The Minister failed to consider lawfully the Commissioner's environmental history

79    Section 136(4) (quoted above) permitted the Minister to consider whether a proponent was a suitable person to be granted an approval 'having regard to … the person's history in relation to environmental matters'. The permissive terms of the provision read in the context of s 136(2) which specifies matters to which there must be regard means that the proponent's environmental history could not be characterised as a mandatory consideration.

80    In the present case, the delegate did have regard to the Commissioner's environmental history in two respects.

81    Firstly, the delegate had regard to environmental history in considering the offset strategy that had been provided by the Commissioner concerning the black cockatoos, in the following way (reasons, para 96):

In light of the Offset Strategy not providing 100% direct offset for impacts to Black Cockatoos, I agreed to require the proponent to submit a revised Offset Strategy and Offset Management Plans which would identify suitable environmental offsets for Black Cockatoos. This would require the proponent to negotiate the quantum of offset they will provide to meet the Offsets Policy requirements, which includes the security and implementation of a 100% direct environmental offset for Black Cockatoos. The Department has taken this approach with similar Main Roads projects. Noting the proponent's prior history in securing suitable offsets, I agreed that there was, and is, a high degree of confidence that the final offsets package, once negotiated by the proponent with relevant third parties and the Department, will provide a 100% environmental offset for Black Cockatoos.

82    As to the above reasoning, it was submitted for FOGC that there was no evidence of any history of the Commissioner securing suitable offsets. Before the delegate was the following statement in the recommendation report (para 55):

The Department has taken this approach with similar Main Roads projects. Noting the proponent's prior history in securing suitable offsets, the Department has a high degree of confidence that the final offsets package, once negotiated by the proponent with relevant third parties and the Post Approvals Section, will provide 100% environmental offset for Black Cockatoos.

83    The above passage formed part of the delegate's reasons as to the conditions that may be appropriate in relation to impacts on the black cockatoos of the proposed action. Read in context and without an eye attuned to error (as is required), the delegate was considering whether a condition of the kind proposed might be expected to be met. It was not reasoning about prior history of compliance in general. Rather, it was reasoning about whether the Commissioner had been able to bring forward suitable offsets to comply with conditions requiring compensation by way of offset. Whether that was so depended upon the history of dealings by the Minister's department with the Commissioner. In those circumstances, the delegate was entitled to act upon the statement in the recommendation report as evidence of those past dealings.

84    Therefore, the submission by FOGC to the effect that there was no evidence to support the reasoning of the delegate at para 96 must be rejected.

85    Secondly, after dealing with the conditions that would apply to the approval, the reasons of the delegate addressed the environmental history of the Commissioner in the following terms (para 170):

On 26 April 2022, the Department's Compliance Branch provided an environmental history check on the proponent that demonstrated a number of minor issues and investigations. I did not consider any of these to be substantial, and noted that the majority of entries were finalised with no further action required. …

86    As to the history check, the recommendation report referred to s 136(4) and then stated (paras 227-228):

On 27 April 2022, the Office of Compliance provided advice (Attachment E10 of the proposed approval brief) and has identified some adverse history relating to the proponent that relate to contraventions of national environmental law. The Triage and Wildlife section is not aware of any contraventions of state laws associated with this entity.

The Department has considered comments from the Post Approvals Section and Environmental Compliance Section in the assessment of the proposal and in the recommended decision and conditions. The comments are at Attachments E10 and E11 of the proposed approval brief. Based on the available information the Department considers that the proponent is a suitable person to be granted an approval under the EPBC Act.

87    For FOGC, it was submitted that regard to Attachment E10 might lead a reader to conclude that reasonable searches had been undertaken concerning the environmental history of the Commissioner. Further, it was said that the suggestion in that material that there was a need for urgency in making the inquiries was unexplained in circumstances where the relevant inquiries were undertaken in April 2022 for an approval given in late June 2022.

88    It is not in dispute that the information provided with the recommendation report did not include certain publicly available information about failures by the Commissioner to conform to state environmental laws contained in audit report summaries published by the Commissioner and reports published by the Office of the Appeals Convenor. However, there is no suggestion that these facts were matters that were before the delegate.

89    It was submitted for FOGC that the deficiencies were unexplained. They were said to lead to the consequence that the attempted consideration of the Commissioner's actual environmental history miscarried. It was contended that there was, in fact, no real consideration of that history by reason of the failure to present to the delegate the publicly available information.

90    As to whether the failure to refer to the publicly available information concerning the Commissioner's history could be a basis for the relief claimed, there can be no jurisdictional error for the purposes of the claim under the Judiciary Act nor any ground of review under the Administrative Decisions (Judicial Review) Act simply on the basis that there was material in existence at the time of the delegate's decision that was not before the delegate that was not considered by the delegate. Further, to the extent that the complaint raised by Claim 4 is to the effect that the delegate should have considered other publicly available material not before the delegate the claim is not made out.

91    The alternative claim advanced as part of Claim 4 as to the reasoning of the delegate at para 170 is that there was a failure to make an obvious inquiry about a critical fact which manifested as jurisdictional error, relying on statements in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. It was accepted by the Minister that there was power for the delegate to seek further information if the view was formed that there was insufficient information to make an informed decision. However, what was not explained by FOGC was any basis upon which the delegate might have formed such a view. It was not explained nor is it apparent why it was obvious that further inquiry was needed in circumstances where the recommendation report dealt with the topic.

92    Therefore, Claim 4 has not been made out.

Claim 5: The decision to approve is inconsistent with the recovery plan for the western ringtail possum

93    Section 139(1) provides that in deciding whether to approve the taking of controlled action, 'the Minister must not act inconsistently with … a recovery plan'. There are other matters specified within the section that the Minister 'must not act inconsistently with'. There are also provisions as to other matters in s 137, s 137A, s 138, and s 140 which adopt the same wording. The group of provisions may be contrasted with the terms of s 136 (quoted above) which identifies matters which the Minister 'must consider', 'must take into account', 'may consider' and 'must not consider'.

94    Claim 5 is to the effect that proposed action in the present case would result in an outcome that was contrary to the outcomes stated in the recovery plan concerning the western ringtail possum. Therefore, so it is submitted, when the delegate approved the proposed action the delegate acted inconsistently with that plan contrary to s 139(1).

95    As has been explained, a recovery plan is an instrument that is prepared under relevant provisions of the Act. Section 139(1) gives every recovery plan significance for the making of a decision whether to approve proposed action. It does not require compliance with the recovery plan or for any approval to be made 'in accordance with' the recovery plan. Rather, it requires that the Minister 'not act inconsistently' with the plan.

96    FOGC framed its case by reference to the following aspects of the recovery plan for the western ringtail possum:

(1)    the summary at the beginning of the plan states that: 'Habitat critical to survival for western ringtail possums is not well understood';

(2)    the stated 10 year goal of the plan is to:

slow the decline in population size, extent and area of occupancy through managing major threatening processes affecting the subpopulations and their habitats, and allowing the persistence of the species in each of the identified key management zones: Swan Coastal Plain, southern forests and south coast.

(3)    the plan describes the long term goals of the recovery program outlined in the plan and identifies specific recovery objectives for the next 10 years; and

(4)    the plan lists 'criteria for success' and 'criteria for failure' the latter of which states:

This recovery plan will be deemed unsuccessful if, within a 10 year period, any of the following occur:

there is loss of habitat that results in localised extinction or contraction of western ringtail possums in any of the key management zones;

threatening processes result in localised extinction or contraction of western ringtail possums in any of the key management zones;

an evidence-based management approach is not applied to populations in any of the key management zones;

displaced and rehabilitated western ringtail possums do not contribute to the recovery of the species; or

there is no increased community support for western ringtail possum conservation.

[emphasis added]

97    It is common ground that the Commissioner's proposed action the subject of the approval is to take place in a key management zone identified in the recovery plan.

98    The submission advanced by FOGC was developed by reference to the first of the criteria (as emphasised above) for failure, namely 'loss of habitat that results in localised extinction or contraction of western ringtail possums in any of the key management zones.' It was submitted that the delegate's reasons contemplated that there would be mortality for an unknown number of western ringtail possums if the proposed works were allowed to be undertaken. Therefore, so it was submitted, the approval would result in an outcome that would involve localised extinction or contraction of western ringtail possums in the key management zone where the proposed action was to take place.

99    The relevant part of the reasons of the delegate was as follows (para 112):

I particularly noted that the recovery plan for the Western Ringtail Possum indicates high mortality at translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers. I therefore accept the Department's advice that an unknown proportion of the displaced Western Ringtail Possums will or are likely to suffer mortality as a result of the action given that Western Ringtail Possum display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs.

100    In short, the submission was that approval of proposed action that was likely to result in mortality of western ringtail possums would involve the Minister acting inconsistently with the recovery plan.

101    The submission failed to engage with the terms of the recovery plan. It described what would amount to a failure of the plan measured after a 10 year period of giving effect to the plan. The plan described 'localised extinction or contraction' of western ringtail possums in any of the key management zones. Those zones were described in the recovery plan as 'Swan Coastal Plain, southern forests and south coast'. They are identified more specifically as follows (page 7):

1.    Swan Coastal Plain zone: the peppermint woodlands and peppermint/tuart forests on the southern extremity of the Swan Coastal Plain, extending from north of Bunbury to Augusta, but principally around Busselton.

2.    Southern Forest zone: Jarrah forests near Manjimup where peppermint is generally absent (Jones 2004, Wayne et al. 2005a, 2005c, 2006).

3.    South Coast zone: a diverse range of vegetation types between Walpole and Cheynes Beach, but principally in near-coastal limestone heath, jarrah marri thicket woodland and forest, riparian, peppermint woodland and karri forest vegetation.

102    The recovery plan refers to the highest densities of western ringtail possum occurring on the Swan Coastal Plain and in south coast areas. It refers to the population in the Ludlow-Busselton area 'as the last substantial stronghold for western ringtail possums left on the Swan Coastal Plain'. The recovery plan states that: 'From existing survey data, the population in the Bunbury to Dunsborough region is possibly between 2,000 and 5,000 animals'.

103    The Swan Coastal Plain management area is an area of 3,123.18 km2. The proposed action is to be undertaken in respect of 60.9 hectares.

104    Assuming favourably to the submission advanced for FOGC that the obligation 'not to act inconsistently' meant not to act incompatibly with the criteria for failure in the recovery plan, the plan itself was not identifying any mortality of western ringtail possums in an area as a measure of failure. Rather, the recovery plan was referring to loss of habitat that resulted in 'localised extinction or contraction' in respect of a very large area evaluated at the end of a 10 year period.

105    The delegate's reasons explained the extent of avoidance, mitigation and management measures to be taken. They included timing any clearing to avoid the breeding season, staged clearing moving from edge lines towards retained areas of habitat, specific arrangements to locate and tag possums and precautions to be taken in the felling of trees to facilitate relocation. As has been discussed, they included requirements to undertake compensatory offsets to set aside habitat. The conditions also required steps to be taken to restore habitat in the area of the proposed action over a 15 year period. All these steps are directed towards ensuring that there is no localised extinction or contraction over the duration of the plan. There was no suggestion that they would be ineffective or would otherwise mean that the recovery plan would fail.

106    In those circumstances, it has not been demonstrated that the approval will mean that a criteria for failure as stated in the recovery plan will be met. The premise for the legal argument has not been established. Accordingly, it is not necessary to reach a firm view as to the meaning of the requirement that the Minister 'not act inconsistently with a recovery plan in deciding whether to approve proposed action'.

107    It was also said that 'the department misled the delegate about what the recovery plan wanted'. The submission to that effect relied upon the following passage from the recommendation report (para 98):

The Department has also considered the goals and objectives set out in the Recovery Plan, as well as the risks to [western ringtail possums]. The Department is of the view that the proposed action would not be inconsistent with this plans it is unlikely to interfere with the listed objectives or introduce risk of failure by resulting in localised extinctions or large-scale contraction of areas of occupancy.

(emphasis added)

108    The submission advanced was to the effect that the emphasised language in the quote did not reflect the terms of the recovery plan itself. As has been noted, the recovery plan referred to 'localised extinction or contraction of western ringtail possums in any of the key management zones'. However, the zones themselves were very large tracts of land.

109    It may be noted that the terminology of the department in the recommendation report was not adopted by the delegate. One reference to the recovery plan by the delegate has already been noted. There were a number of others, namely:

(1)    the delegate 'noted that information on the characteristics, status and habitat requirements' for the western ringtail possum were available in the recovery plan (and other instruments) (para 100);

(2)    significantly, the delegate acknowledged the statement in the recovery plan that '[a]ny habitat where western ringtail possums occur naturally are considered critical and worthy of protection' (para 101);

(3)    it was said that having regard to instruments that included the recovery plan, the delegate 'considered that identified threats to the Western Ringtail Possum are complex, interactive and often population specific' and the primary threats were described (para 102);

(4)    the following statements were made (paras 103-105):

I noted that the Swan Coastal Plain is identified as a key management zone for Western Ringtail Possum, and that the 10-year goal of the recovery plan is to:

a.    Slow the decline in population size, extent and area of occupancy through managing major threatening processes affecting the subpopulations and their habitats and allowing the persistence of the species in each of the identifies key management zones: Swan Coastal Plain, southern forests and south coast.

I also noted that the long-term vision of the recovery plan is:

a.    To improve the population status, leading to a reduction in the threat status, or the future removal of the Western Ringtail Possum from the threatened species list of the EPBC Act and the Wildlife Conservation Act 1950; and

b.    To ensure that threatening processes do not compromise the ongoing viability of the Western Ringtail Possum population.

I also noted the limited success of population translocation as a means to preserve Western Ringtail Possum.

(5)    in the conclusion to the section of the reasons concerning the western ringtail possum it was said that overall, having regard to 'the recommendation report, recovery plan, conservation advice, relevant threat abatement plans, significant impact guidelines and the [preliminary documentation provided by the proponent]' the delegate was satisfied that an approval on the proposed conditions would not have an unacceptable impact on the western ringtail possum (para 131); and

(6)    also in the conclusion, the delegate agreed with the department that the 'proposed management measures would protect the Western Ringtail Possum from threatening processes of the type described in recovery plans and conservation advices, and that the proposal is not inconsistent with these plans and advices'.

110    Also, in dealing with 'Other Relevant Matters', the delegate said (para 160):

I agreed with the Department’s view that the conditions will ensure that significant impacts are avoided and mitigated to an acceptable level, and provide for compensatory measures where there is likely to be a residual significant impact, thus ensuring viable habitat. Accordingly, I did not consider that the proposed action, was inconsistent with a recovery plan or threat abatement plan under section 139 of the EPBC Act.

111    Having regard to the above aspects of the reasoning, I do not accept that it has been established the delegate acted upon a misunderstanding of what the recovery plan required. The statement quoted immediately above was concerned with the conditions. The earlier statements in the reasons (including those concerning the significance of high mortality at translocation sites and low rehabilitation success rates) manifest a concern about any mortality that might arise and the need to require by way of conditions detailed measures in the form of the management plans. Likewise, the conditions requiring the restoration of habitat and offsets. The reasoning process of the delegate does not indicate the adoption of any view that it was only large-scale contraction of the areas of occupation by the species that was the subject of the recovery plan. In that regard, it is significant that the delegate expressly acknowledged the statement in the recovery pan to the effect that any habitat where western ringtail possums occur naturally is considered critical and worthy of protection.

112    For those reasons Claim 5 has not been made out.

113    It is not necessary to consider the submission for the Minister that a failure to comply with s 139 would not lead to invalidity of the approval because it is a requirement that sits outside the mandatory considerations described in s 136.

Conclusion and orders

114    It follows that none of the five bases for the application has been established and the application must be dismissed. There should be orders that provide for an application for cost orders if that is considered to be appropriate. Unless otherwise ordered, I will deal with any such application on the papers.

Associate:

Dated:    22 December 2022