FEDERAL COURT OF AUSTRALIA

Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 532

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    On or by 5 pm on 29 May 2025, the respondents file and serve submissions on the question of costs (to the extent that the respective respondents seek their costs of the proceedings) with any such submissions not to exceed 5 pages.

3.    On or by 5 pm on 5 June 2025, the applicant file and serve submissions in reply on the question of costs with such submissions not to exceed 5 pages.

4.    On or by 5 pm on 12 June 2025, the respondents file and serve submissions in reply to any submissions filed by the applicant under order 3 with such submissions not to exceed 5 pages.

5.    The question of costs be determined on the papers unless one or more of the parties indicate to the court by 12 pm on 16 June 2025 that they wish to be heard on the question of costs.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The second respondent (the Proponent) sought the approval of the first respondent (the Minister) for the construction, operation and decommissioning of up to 69 wind turbine generators (WTGs) and ancillary infrastructure as part of the project known as the Gawara Baya Wind Farm (Wind Farm).

2    The Wind Farm is to be located 65 km south-west of Ingham in North Queensland within Kilclooney Station which is currently used for cattle grazing. It is to be located adjacent to but outside the UNESCO-listed Wet Tropics World Heritage Area. This area is made up largely of tropical rainforests and is home to rare and unique marsupials and other animals including a number of protected or endangered species of birds and bats.

3    On 17 June 2024, a delegate of the Minister made a decision to grant approval to the Proponent (the Approval Decision) to construct, operate and decommission the Wind Farm pursuant to ss 130(1) and 133(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) but subject to certain conditions specified in Annexure A of the decision (the Conditions).

4    The applicant is a not-for-profit environmental charity. It holds concerns that the operation of the WTGs at the proposed Wind Farm will kill, injure or disturb endangered or protected species of birds and bats. It says, amongst other things, that the approval of the Wind Farm amounts to the “taking” of migratory bird species in a manner that is inconsistent with Australia’s obligations under specified international treaties which are protected by the EPBC Act. By a further amended original application, the applicant seeks relief pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

5    By the time of the hearing before me, the applicant narrowed its case such that it raised the following issues for determination:

(a)    whether the Approval Decision is inconsistent with Australia's international obligations for the purposes of s 140 of the EPBC Act and, therefore, invalid because s 140 gives rise to a jurisdictional fact that must be established as a matter of objective fact or because that provision is otherwise jurisdictional such that non-compliance with it gives rise to invalidity: Ground 1 (the Migratory Species Ground);

(b)    whether the “action” that was approved went beyond the action that was referred to the Minister by the Proponent: Ground 3 (the Baseline Measures Ground); and

(c)    whether certain Conditions make the Approval Decision uncertain (the Uncertainty Grounds), specifically:

(i)    whether the "impact trigger threshold" definitions and conditions contained in the Approval Decision are uncertain: Ground 5 (the Impact Trigger Threshold Issue); and

(ii)    whether certain other conditions contained in the Approval Decision that provide for further Ministerial approval to be obtained are uncertain in that they give rise to a “secondary consent” process: Grounds 6 and 7 (the Further Ministerial Approval Issues).

6    For the reasons set out below, the further amended originating application should be dismissed and I will hear the parties on the question of cost. For convenience, I have structured my reasons as follows:

(a)    Part 2 sets out the salient aspects of the applicable statutory scheme;

(b)    Part 3 summarises the relevant facts;

(c)    Part 4 addresses the Migratory Species Ground;

(d)    Part 5 addresses the Baseline Measures Ground;

(e)    Part 6 address the Uncertainty Grounds; and

(f)    Part 7 sets out my conclusion.

2.    THE SALIENT ASPECTS OF THE STATUTORY SCHEME

7    The objects of the EPBC Act are identified in s 3(1) and relevantly include the protection of the environment, especially matters of national environmental significance (MNES) (s 3(1)(a)), the promotion of ecologically sustainable development (s 3(1)(b)), the promotion of a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples (s 3(1)(d)) and assisting in the co-operative implementation of Australia’s international environmental responsibilities (s 3(1)(e)).

8    In order to promote these objects, the EPBC Act enacts prohibitions on specified conduct aimed at protecting the environment. It also enacts a sophisticated scheme whereby the Minister may approve of actions that would otherwise contravene or offend the prohibitions. The relevant aspects of this scheme have been considered in a number of previous decisions of this Court: see Australian Conservation Foundation Inc v Minister for the Environment and Energy [2017] FCAFC 134; 251 FCR 359 (ACF Adani FFC) at [2]–[28], [52]–[53] (Dowsett, McKerracher and Robertson JJ); Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 260 FCR 1 at [64]–[94] (Mortimer J, as her Honour then was); Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60; 270 FCR 267 (Triabunna FC) at [93]–[94] (Mortimer J); Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139; 299 FCR 236 (Gelorup FFC) at [10]–[31] (Jackson and Kennett JJ) and [100]–[102] (Feutrill J).

9    What follows below is a summary of the key parts of the EPBC Act which are relevant to the present proceedings.

2.1    Prohibitions on certain actions

10    Division 1 of Pt 3 of the EPBC Act contains prohibitions on undertaking any action that has, will have or is likely to have a “significant impact” on particular matters. Each such prohibition is made up of companion provisions: one that gives rise to a civil penalty and the other that creates a criminal offence (see eg ss 12 and 15A, ss 16 and 17B, ss 18 and 18A and ss 20 and 20A). However, each such provision is also subject to exceptions where relevant approvals are in place.

11    Relevantly, for the purposes of the present proceedings, the prohibitions are those contained in ss 20 and 20A of Subdiv D of the EPBC Act. Section 20 provides as follows:

Subdivision D—Listed migratory species

20     Requirement for approval of activities with a significant impact on a listed migratory species

(1)    A person must not take an action that:

(a)     has or will have a significant impact on a listed migratory species; or

(b)     is likely to have a significant impact on a listed migratory species.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(2)     Subsection (1) does not apply to an action if:

(a)     an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)     Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c)     there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d)     the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

12    Section 20A of the EPBC Act creates strict liability offences subject to certain exceptions. It provides as follows:

20A    Offences relating to listed migratory species

(1)     A person commits an offence if:

(a)     the person takes an action; and

(b)     the action results or will result in a significant impact on a species; and

(c)     the species is a listed migratory species.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(1A)     Strict liability applies to paragraph (1)(c).

Note: For strict liability , see section 6.1 of the Criminal Code.

(2)     A person commits an offence if:

(a)     the person takes an action; and

(b)     the action is likely to have a significant impact on a species; and

(c)     the species is a listed migratory species.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2A)     Strict liability applies to paragraph (2)(c).

Note: For strict liability , see section 6.1 of the Criminal Code.

(3)     An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.

(4)     Subsections (1) and (2) do not apply to an action if:

(a)     an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)     Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c)     there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d)     the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

13    Sections 20 and 20A both focus on “listed migratory species”. For the purposes of the EPBC Act, the phrase “migratory species” has the meaning given in Art I of the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention): s 209(8) of the EPBC Act. Article I provides:

“Migratory species” means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries;

14    A “listed migratory species” is a migratory species that is included in the list established by the Minister pursuant to s 209 of the EPBC Act.

15    As is evident from these provisions, the prohibitions contained in ss 20 and 20A do not apply if, relevantly, there is an approval in operation under Pt 9 or there is in force a decision of the Minister under Div 2 of Pt 7 that the provision is not a controlling provision for the action.

2.2    The process of referral, assessment and approval

16    The EPBC Act enacts a process for approvals to be obtained in respect of particular actions. As the Full Court explained in ACF Adani FFC (at [52]–[53]), generally, the process of approval involves “three phases” of decision-making:

... The [EPBC] Act identifies three phases in the process leading to a decision to approve or not approve an action. First, the Minister must decide whether the proposed action needs approval. If he or she so decides, then he or she must identify the relevant controlling provisions. Second, an assessment report will be prepared pursuant to s 47(4), s 84(3) or s 87(4). See s 136(2)(b) and s 130(2). In each case, the assessment report must address the relevant impacts which are, as we have observed, impacts on the protected matters identified by the Minister pursuant to s 75. Third, the Minister makes his or her decision, based upon the matters identified in s 136 and, perhaps, elsewhere in the [EPBC] Act.

    The Minister is directed by s 136 to consider, "matters relevant to any protected matter". He or she is not required to decide, at that stage, whether or not a particular event or circumstance is an "impact" or "relevant impact", save for the purpose of deciding whether s 136(2)(e) has been engaged: that is, for the purpose of deciding whether there is material identified by that provision, which material, he or she must consider The identification of controlling provisions and relevant impacts are primarily steps designed to provide a structure within which the assessment of the relevant action may be conducted. Those concepts will generally be irrelevant to the Minister's decision pursuant to s 130…

17    It is necessary to examine each of these three processes.

2.2.1    Phase 1: Referral and initial assessment by the Minister of controlled actions

18    The first phase involves a determination of whether an action requires approval. This is governed by Part 7 of the EPBC Act. The first provision in this Part is s 67, which provides that a proposed “action” is a “controlled action” if the taking of the action without approval under Pt 9 of the EPBC Act would be prohibited by a provision of Pt 3. The provision is described as a “controlling provision” for the action. Section 67A prohibits the taking of a controlled action without approval being obtained.

19    It is relevant that the word “action” is defined broadly in s 523(1) to include a project, a development, an undertaking, an activity or series of activities and an alteration of any of these things.    

20    Section 68 of the EPBC Act provides a mechanism for a person to seek Ministerial approval for the controlled action. It provides that a “person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister” for a decision on “whether or not the action is a controlled action”: s 68(1). A person proposing to take an action that “the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action”: s 68(2). In either situation, the person must state whether the person thinks the action that is proposed to be taken is a controlled action. As a result, whether “an action is ‘controlled’ or not is therefore a matter for assessment by the Minister”: Gelorup FFC at [12] (Jackson and Kennett JJ).

21    Where there is a referral to the Minister, s 75(1) of the EPBC Act provides that the Minister must decide whether the action that is the subject of the proposal is a controlled action and, if so, which provisions of Pt 3 are controlling provisions for the action. This aspect of the Minister’s functions has been described as an “initial clearing house” or “triage system” which does not “fix in stone all the details of a proposed ‘action’ for the subsequent approval process”: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211 at [22] (Heerey J) citing Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; 243 ALR 784 at [70] (Stone J).

22    If the Minister believes on reasonable grounds that the referral of a proposal to take an action does not include sufficient information, the Minister may request the person proposing to take the action to provide specified information relevant to making the decision: s 76. However, if the Minister considers that the action is not a controlled action (that is, there are no controlling provisions), then, subject to the operation of s 77, the proponent can take the action and the prohibitions in Pt 3 will not apply as a result of this decision. However, if the Minister considers that the action is a controlled action then further assessment of the action and its impact will be required as set out in Pt 8.

23    The EPBC Act contains a mechanism for the variation of proposals following a referral, which can permit variations until the point of approval: s 156A(2)(d). A person may request that the Minister accept a variation of the original proposal: s 156A(1). The Minister must decide whether or not to accept such a request: s 156B. If a varied proposal is accepted, anything done in relation to the original proposal is taken to be done in relation to the varied proposal: s 156D(1)(b).

2.2.2    Phase 2: Assessment of proposed action by reference to relevant impacts

24    If the Minister decides that an action is a controlled action, the Minister must then proceed to the second phase. This involves an assessment of the “relevant impacts” of the action under Pt 8 of the EPBC Act. The “relevant impacts” of the action are identified in s 82(1) as the impacts that the action has or will have (or is likely to have) on the matter protected by each provision of Pt 3 that the Minister has decided is a controlling provision.

25    The EPBC Act is prescriptive as to how this assessment is conducted. Section 87 requires the Minister to decide on an assessment approach as follows:

87    Minister must decide on approach for assessment

    Minister must choose one assessment approach

(1)    The Minister must decide which one of the following approaches must be used for assessment of the relevant impacts of an action that the Minister has decided is a controlled action:

(a)     assessment by an accredited assessment process;

(aa)     assessment on referral information under Division 3A;

(b)     assessment on preliminary documentation under Division 4;

(c)     assessment by public environment report under Division 5;

(d)     assessment by environmental impact statement under Division 6;

(e)     assessment by inquiry under Division 7.

26    As specified in s 87(1)(c), one of the available approaches involves an assessment by way of a “public environment report” (PER). Where this assessment approach is selected, Div 5 of Pt 8 provides that a draft PER must be prepared by the proponent in response to written guidelines issued by the Minister (s 96A), public comment must then be sought on the draft PER (s 98), a final report must then be prepared (s 99) and the Secretary must then prepare a recommendation report to the Minister (s 100).

2.2.3    Phase 3: Ministerial approval and decision-making

27    Once an assessment has been made as to the relevant impacts of an action, the third phase of the decision making process requires the Minister to decide whether to approve the taking of action. Part 9 of the EPBC Act governs the approval process.

28    Section 130(1) of the EPBC Act provides that the Minister “must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.” Relevantly, the decision cannot be made until the Minister has, amongst other things, received the Secretary’s recommendation report.

29    Section 133(1) provides that “[a]fter receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.” Section 133(2) relevantly provides that an approval must be in writing, specify the action that may be taken, specify each provision of Pt 3 for which the approval has effect, specify the period for which the approval has effect, and set out the conditions attached to the approval.

30    Sections 134(1) and (2) provide generally for the kinds of conditions that may be imposed. Section 134(3) provides “[e]xamples of kinds of conditions that may be attached” to an approval. In Gelorup FFC, Jackson and Kennett JJ observed (at [28]) that:

Section 136(1) also indicates that the decision as to what conditions should be imposed is at least very closely related to the decision whether approval should be given. Sections 134(1) and (2) reinforce that point: the conditions that may be imposed are those which the Minister thinks are "necessary or convenient" for protecting, or mitigating or repairing damage to, the matters protected by the particular controlling provisions that are in play. At least implicitly, if the Minister is not satisfied that approval of the proposed action as presented is appropriate, they must consider whether an approval subject to identified conditions is appropriate.

31    The EPBC Act contains a series of provisions which govern the considerations relevant (or irrelevant) to the making of a decision under ss 130 and 133. These are located in Subdiv B of Div 1 of Pt 9, which commences with an overarching general provision and is followed by a range of provisions specific to particular circumstances and controlling provisions from Pt 3.

32    The first provision in this subdivision is s 136, which is entitled “General considerations”. It sets out the general matters the Minister must, may and must not consider in deciding whether to approve the taking of an action and what conditions to attach to an approval. Section 136(1) specifies certain “mandatory considerations”. This includes matters relevant to any matter protected by a controlling provision for the action as well as “economic and social matters”. Section 136(2) identifies a number of further factors that the Minister must take into account when considering the matters identified in s 136(1), including the principles of ecologically sustainable development, the PER (if any) and any other information the Minister has as to the relevant impacts of the action: s 136(2)(a), (c) and (e). Section 136(4) identifies permissible considerations to which regard may be had in approving and conditioning an action. These permissible considerations pertain to a person’s suitability by reference to that person’s “environmental history”. And, s 136(5) provides that, 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” (emphasis added).

33    Sections 137, 137A, 138, 139 and 140 then focus on particular requirements. Each section specifies a number of matters which are each expressed as being matters that the Minister must not do “[i]n deciding whether or not to approve” the taking of an action. Specifically, these provisions state in each respect that “the Minister must not act inconsistently” with particular instruments or relevant plans and obligations pertaining to discrete matters of national environmental significance. As I will return to below, in the present case, s 140 was central to the applicant’s case. It provides as follows:

140     Requirements for decisions about migratory species

In deciding whether or not to approve for the purposes of section 20 or 20A the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval, the Minister must not act inconsistently with Australia’s obligations under whichever of the following conventions and agreements because of which the species is listed:

(a)     the Bonn Convention;

(b)     CAMBA;

(c)     JAMBA;

(d)     an international agreement approved under subsection 209(4).

34    Relevantly for the purposes of ss 140(b) and (c), s 428 of the EPBC Act defines CAMBA and JAMBA as follows:

CAMBA means the Agreement between the Government of Australia and the Government of the People’s Republic of China for the protection of Migratory Birds and their Environment done at Canberra on 20 October 1986, as amended and in force for Australia from time to time.

JAMBA means the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment done at Tokyo on 6 February 1974, as amended and in force for Australia from time to time.

35    Also relevant is the Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds, which was signed on 6 December 2006 and entered into force on 13 July 2007. This agreement (ROKAMBA) was approved under s 209(4) and is therefore relevant to a decision under s 140(d).

36    For convenience, in these reasons, I have referred to CAMBA, JAMBA and ROKAMBA collectively as the “Specified Bilateral Treaties”.

3.    THE RELEVANT FACTS

37    The relevant facts were not in dispute. What follows is a brief summary of them.

38    On 11 October 2021, the Proponent submitted to the Minister’s Department (the Department) a referral pursuant to s 68 of the EPBC Act.

39    The referral proposed the construction, operation and decommissioning of up to 136 WTGs, which was later amended to involve 69 WTGs (the Proposed Action). The details of the Proposed Action were set out in the referral form prescribed by the Department (the Referral Form).

40    The Referral Form attached a number of documents (that were referred to in the body of the referral) including the Significant Impact Assessment for Matters of National Environmental Significance, an Ecological Assessment, and a Biodiversity Management Framework (the BMF). As expanded upon below:

(a)    section 4.1 of the Referral Form contained a general description of the measures that the Proponent would undertake to avoid or reduce the impacts from the Proposed Action including avoidance and mitigation measures that would be delivered by the implementation of the BMF and associated management plans; and

(b)    in turn, the BMF contained a “Preliminary Bird & Bat Management Plan” (the Preliminary BBMP) which identified four measures to be implemented to address the risk of bird and bat injury and mortality being:

(i)    low wind speed curtailment at wind speeds of 0 to 3 ms-1;

(ii)    the provision of a collision free zone above the vegetated canopy;

(iii)    limitations to the lighting of turbines; and

(iv)    the implementation of a fauna injury protocol.

41    On 23 November 2021, a delegate of the Minister decided that the Proposed Action was a controlled action and decided pursuant to s 75(1)(b) that the controlling provisions were: listed threatened species and ecological communities (ss 18 and 18A), listed migratory species (ss 20 and 20A); world heritage values (ss 12 and 15A); and national heritage values (ss 15B and 15C).

42    The delegate determined pursuant to s 87(1) that the proposed action was to be assessed by PER.

43    On 26 April 2022, the Department issued “PER Guidelines” to the Proponent.

44    On 25 July 2022, the Proponent submitted a request to the Department to vary the proposed action under s 156A(1)(b) so as to reduce the number of WTGs from 136 to 82. That request was accepted on 15 August 2022.

45    The Proponent then provided a draft PER to the Department, which was reviewed and commented upon. A revised draft was submitted and found to satisfy the PER Guidelines. It was published and public comment was invited.

46    The applicant commented on the draft PER.

47    On 24 July 2023, following the public consultation period, the Proponent submitted a second request to vary the Proposed Action under s 156A(1)(b) so as to reduce the number of WTGs from 82 to 69, and that variation was accepted on 21 August 2023.

48    On 4 September 2023, the Proponent submitted its final PER. The final PER was prepared with the benefit of updates resulting from the Department’s review and public comment. The final PER reflected the reduction to 69 WTGs and their layout, which followed “further targeted ecology studies, continued public consultation and feedback received on the draft PER”. The final PER attached an “Environmental Management Plan” and a draft “Bird & Bat Management Plan” (the draft BBMP). The draft BBMP that was attached to the final PER identified a range of measures to be implemented to address the risk of injury and mortality to bird and bat species arising from turbine collision along the lines of the measures that had been outlined in the Preliminary BBMP. These measures were referred to as “baseline measures”.

49    Following the publication of the final PER, there were further requests for information from the Department and responses given before a proposed decision (and proposed conditions) were published for comment on 12 April 2024.

50    On 23 May 2024, the Proponent submitted a third request to vary the proposed action under s 156A(1)(b) so as to revise the “Development Corridor” as a result of the proposed conditions. That variation was accepted on 17 June 2024, immediately prior to the delegate’s decision in relation to the proposed action on the same day.

51    On 17 June 2024, the delegate made the Approval Decision, granting approval to take the proposed action subject to conditions. Specifically, the approval imposed 128 conditions which were set out in Annexure A to the Approval Decision (the Conditions). The Conditions were divided into “Part A – Avoidance, mitigation, monitoring and compensation conditions”, “Part B – Administrative conditions” and “Part C – Definitions”.

52    Following the Approval Decision, the applicant requested a written statement of reasons in relation to the decision pursuant to s 13(1) of the ADJR Act. Those reasons were provided to the applicant on 8 November 2024 (the Delegate’s Reasons).

4.    THE MIGRATORY SPECIES GROUND

4.1    Overview of the Applicant’s Contentions

53    The applicant’s contentions in support of the Migratory Species Ground rested upon three central submissions.

54    First, the applicant submitted that s 140 of the EPBC Act creates a jurisdictional fact, the existence of which is an essential condition to the exercise of the Minister’s power under ss 130(1) and 133(1) to grant an approval of controlled action. The applicant contended that the relevant jurisdictional fact is that the Minister cannot (as a matter of objective fact) act “inconsistently with” the Specified Bilateral Treaties. The applicant submitted that, as this was a jurisdictional fact, the question of whether the Minister had acted inconsistently with the Specified Bilateral Treaties was not merely a matter in respect of which the Minister’s opinion or satisfaction was sufficient to enliven the exercise of power, but was required to be established as a matter of objective fact and that this was as an essential condition to the exercise of that power.

55    Second, the applicant submitted that s 140 is jurisdictional in the sense that non-compliance with that provision gives rise to invalidity. The applicant submitted that this was the case by reason of the imperative nature of the text of s 140 which indicated a Parliamentary intention that non-compliance with that provision would result in invalidity.

56    Third, the applicant submitted that, as a matter of objective fact, the Minister acted inconsistently with the Specified Bilateral Treaties in that each of those treaties prohibit the “taking” of migratory birds and, on the proper construction of the word “taking”, the Approval Decision has the effect of permitting the “taking” of migratory birds by lifting the prohibitions contained in ss 20 and 20A of the EPBC Act.

57    The Proponent and the Minister (collectively referred to as the “respondents”) disputed the applicant’s contentions.

4.2    Does s 140 of the EPBC Act create a Jurisdictional Fact?

58    It was central to the applicant’s case that s 140 of the EPBC Act created a jurisdictional fact in that it was said to be a necessary condition to the exercise of the Minister’s power to make the Approval Decision. The term “jurisdictional fact” is elusive and complex. In Enfield City Corporation v Development Assessment Commission [2002] HCA 5; 199 CLR 135, Gleeson CJ, Gummow J, Kirby J and Hayne J stated at 148 [28]:

The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

59    The relevance to the distinction between a jurisdictional fact and a fact or matter that falls for the formation of an opinion by the decision-maker is that it affects the content of judicial review and informs the validity of the relevant exercise of power. In Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636; 267 FCR 126, Mortimer J (as her Honour then was) adopted (at 165 [166]) the following description of this distinction as stated by Weinberg J in Cabal v Attorney-General (Cth) [2001] FCA 583; 113 FCR 154 at 166 [50]:

The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. “Jurisdictional fact” enables such review whenever the court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person’s determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist.

60    Whether a particular fact is a jurisdictional fact is a matter that is to be resolved by applying the ordinary processes of statutory construction. As Mortimer J said in Country Carbon, “usually”, it will be easy to identify whether a fact is or is not intended to be a jurisdictional fact as there “will be a clear indication by Parliament that it is the repository’s state of mind which is to be decisive, rather than the objective existence of the alleged fact”: [167]. Ordinarily, this will be the case where the exercise of power is conditioned by the formation of an opinion or state of satisfaction of the relevant decision-maker. As Latham CJ stated in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430:

[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist…

61    As his Honour further said at 432:     

It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

See also Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 16; 78 CLR 353 (Dixon J).

62    However, the distinctions are not always clear cut. As Gummow J stated in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [130]:

The “jurisdictional fact”, upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term. The precondition or criterion may consist of various elements… the phrase “jurisdictional fact” is an awkward one…

63    The decision of Spigelman CJ (with whom Mason P and Meagher JA agreed) in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 remains seminal on the issue of jurisdictional fact: see Country Carbon at 164 [165]; see also Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at 736–7 [153]. As his Honour there stated at 63–64 [37]–[42]:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.

“Objectivity” and “essentiality” are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of “essentiality” will often suggest “objectivity”.

Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes “jurisdictional fact” as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion — the result of a process of statutory construction.

Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — “opinion”, “belief”, “satisfaction” — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.

64    Spigelman CJ then stated at 65 [44]:

The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

65    His Honour further stated at 66 [52]:

One formulation of the relevant distinction is whether the fact referred to is “a fact to be adjudicated upon in the course of the inquiry” as distinct from an “essential preliminary to the decision making process”: Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443.

66    In Country Carbon, Mortimer J distilled Spigelman CJ’s reasons to the following core propositions (164–5 [165]):

(a)    Parliament may make any fact a jurisdictional fact and where it does so, the consequence is that the fact “must exist” objectively (at [37]);

(b)    To find that a fact is a jurisdictional fact, the Court must conclude, as a matter of statutory construction, that Parliament intended the presence (or absence) of the fact to invalidate the exercise of power (at [37]);

(c)    Both “objectivity” and “essentiality” (Spigelman CJ’s terms) are inter-related elements in the determination of whether a matter is a jurisdictional fact (at [38]), albeit that the ordinary principles of statutory construction are to be applied (at [39]);

(d)    A determination that a matter is not a jurisdictional fact involves a conclusion, after the process of construction is completed, that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, subject to judicial review of that determination (at [41]);

(e)    Where “a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker —“opinion”, “belief”, “satisfaction”— the construction is often, although not necessarily, against a conclusion of jurisdictional fact” (at [42]);

(f)    The location in the statutory structure of the alleged jurisdictional fact may be critical. Where the alleged fact is located in a provision conferring power, or arises in the course of the consideration by that repository of a power of its exercise, then this may suggest the fact is not intended to be jurisdictional. In contrast, if the fact is located as a preliminary or ancillary matter to the exercise of power, it may indicate Parliament intended the existence of the fact, objectively, to condition the exercise of power (at [44], [51]);

(g)    Another way to put this factor is by asking the question whether the fact is “a fact to be adjudicated upon in the course of the inquiry” as distinct from an “essential preliminary to the decision making process” (at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443). Spigelman CJ then lists a number of other authorities dealing with this factor (at [53]–[54]);

(h)    Other aspects of a given statutory scheme may inform the characterisation the Court must make: see generally [67]–[81], where Spigelman CJ analyses a number of features of the Environmental Planning and Assessment Act 1979 (NSW) and the related Threatened Species Conservation Act 1995 (NSW).

67    As the authorities make plain, the question as to whether a particular statutory provision creates a jurisdictional fact is a matter to be ascertained by the ordinary processes and techniques of statutory construction.

68    Here, it is necessary, as a starting position, to identify the relevant power that was being exercised by the Minister’s delegate. The exercise of that power must be viewed in the context of the particular scheme enacted under the EPBC Act involving the referral and assessment of proposed actions for approval as provided for in Part 9 (Approval of actions) of Chapter 4 (Environmental assessments and approvals) of the EPBC Act.

69    It is relevant that Div 1 of Pt 9 is entitled “Decisions on approval and conditions” and Subdiv A is entitled “General”. The first section of Subdiv A is s 130, which is entitled “Timing of decisions on approval”. Section 130(1) provides (as a “basic rule”) that “the Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.” The exercise of that power must be read in the context of the period of time within which the Minister must make the decision (s 130(1A)) which, relevantly, is dependent upon when the Minister receives prescribed materials, whether that be the “assessment report”, a PER or otherwise (subject to extensions of time and the like).

70    Sections 133(1) and (1A) empower the Minister to grant an approval as follows:

133     Grant of approval

Approval

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

(1A)     If the referral of the proposal to take the action included alternative proposals relating to any of the matters referred to in subsection 72(3), the Minister may approve, for the purposes of subsection (1), one or more of the alternative proposals in relation to the taking of the action.

71    Section 133(2A) provides that an approval that is granted “is an approval of the taking of the action specified in the approval by” either “the holder of the approval” or “a person who is authorised, permitted or requested by the holder of the approval, or by another person with consent or agreement of the holder of the approval, to take the action”.

72    Section 133 outlines other requirements including as to:

(a)    the content of an approval: sub-s (2);

(b)    the notice to be given by the Minister: sub-s (3);

(c)    the limitations on publication: sub-s (4); and

(d)    importantly, notice of a refusal of approval: sub-s (7).

73    Pausing here, it is plain that it is the combination of ss 130 and 133 that empowers the Minister (or the Minister’s delegate) to grant or refuse an approval of controlled action. So much was not in dispute between the parties.

74    Section 134(1) empowers the Minister to attach a condition to the approval of the action if the Minister is “satisfied” that “the condition is necessary or convenient for” either the protection of a matter protected by Pt 3 or “repairing or mitigating damage to a matter protected by a provision of Part 3” for which the approval has effect “whether or not the damage has been, will be or is likely to be caused by the action”. Amongst other things, s 134(3)(e) provides that an example of a condition that the Minister may attach includes (if certain elections have been made) the requirement for an “action management plan to be submitted to the Minister for approval” and the “implementation of the plan so approved”.

75    Further, as set out above, Subdiv B of Pt 9 sets out the matters to be considered in the exercise of that power; they are not conditions that are a predicate to the exercise of that power. In this regard, s 136 sets out “General considerations” including “Mandatory considerations” (s 136(1)), “Factors to be taken into account” (s 136(2)) and a relevant person’s “environmental history” (s 136(4)). Section 136(5) states that in deciding whether or not to approve the taking of an action, and what conditions to attach to it, the Minister “must not consider any matters that the Minister is not required or permitted” by the Division of Part 9 to consider.

76    Sections 137 to 140 are styled as “Requirements” for particular types of decisions. These provisions are not identical to each other as they relate to different subject matter, but the text of each section specifies that, in deciding whether or not to approve particular types of actions, the Minister “must not act inconsistently with” particular obligations. The general subject of each of sections 137 to 140 is as follows:

(a)    s 137 provides “in deciding whether or not to approve” for the purposes of ss 12 or 13A the taking of an action and what conditions to attach to it, the Minister “must not act inconsistently” with Australia’s obligations under the World Heritage Convention or the Australian World Heritage management principles or a plan that has been prepared for the management of a declared World Heritage property under ss 316 and 321;

(b)    s 137A provides that “in deciding whether or not to approve” for the purposes of ss 15B or 15C the taking of an action and what conditions to attach to it, the Minister “must not act inconsistently” with the National Heritage management principles or an agreement to which the Commonwealth is a party in relation to a National Heritage place or a plan that has been prepared for the management of a National Heritage place under ss 324S and 324X;

(c)    s 138 provides that “in deciding whether or not to approve” for the purposes of ss 16 or 17B the taking of an action and what conditions to attach to it, the Minister “must not act inconsistently” with Australia’s obligations under the “Ramsar wetlands”;

(d)    s 139 provides that “in deciding whether or not to approve”, for the purposes of ss 18 or 18A the taking of an action and what conditions to attach to it, the Minister “must not act inconsistently” with Australia’s obligations under particular International Conventions or a recovery or abatement plan; and

(e)    as noted above, s 140, which is central to the applicant’s case, relevantly provides that for the purposes of ss 20 or 20A the taking of an action and what conditions to attach to it, the Minister “must not act inconsistently” with Australia’s obligations under the Bonn Convention and the Specified Bilateral Treaties.

77    Section 140A is cast in different terms to ss 137 to 140. It provides that the Minister “must not approve an action consisting or involving the construction or operation of” particular nuclear installations.

78    Division 2 of Pt 9 imposes requirements upon approval holders to comply with the conditions attaching to an approval and creates both civil penalty and criminal offences in respect of contraventions and breaches of those conditions. Division 3 of Pt 9 empowers the Minister to vary, revoke or suspend conditions attaching to an approval and for variations to action management plans. Division 4 of Pt 9 makes provision for the transfer of approvals between persons. And, Div 5 makes provision for the extension of the period of effect of an approval.

79    Stepping back from these provisions, and looking at them as a whole, it is apparent that the text, context and structure of Pt 9 reveals the following central components to the power conferred upon the Minister to grant or not grant an approval:

(a)    first, the Minister must decide whether or not to grant approval and must do so within a prescribed period of time;

(b)    second, the Minister “may” decide to approve or not approve the taking of a proposed action after receiving the assessment documentation;

(c)    third, in deciding whether to approve the taking of a proposed action, the Minister may attach conditions to an approval that are “necessary or convenient”;

(d)    fourth, in deciding whether to approve the taking of a proposed action:

(i)    the Minister must take into account certain mandatory considerations;

(ii)    the Minister may take into account other factors; and

(iii)    the Minister must not take into account other matters;

(e)    fifth, in deciding whether to grant approval, the Minister must comply with other requirements as to the content of the decision, the notice that is to be given in relation to the approval or decision not to approve the taking of the proposed action, and limits on the publication of a decision to approve the proposed action;

(f)    sixth, in deciding whether to grant approval, the Minister must not act inconsistently with particular obligations that Australia has under international or domestic law; and

(g)    finally, the Minister must not approve an action relating to particular nuclear installations.

80    This analysis is consistent with what the Full Court stated in ACF Adani FFC at 368 [26]–[28] that:

In summary, in making a decision concerning a proposed action, the Minister:

•    must or may consider identified matters;

•    must not consider any other matters;

•    must not act inconsistently with World Heritage obligations, principles and management arrangements; and

•    must not act inconsistently with National Heritage management principles, agreements and plans.

The Minister must also consider the precautionary principle set out in s 391.

There are no criteria as to which the Minister must be satisfied in order to grant approval. By definition, the approval is of an action which has, will have or is likely to have a significant impact upon the protected matters identified by the controlling provisions.

(Emphasis added.)

81    The third and fourth bullet points in the extract above reflect ss 137 and 137A of the EPBC Act but apply equally to s 140.

82    In determining whether s 140 gives rise to a jurisdictional fact, it is relevant but not determinative that the text of s 140 does not expressly refer to words that are indicative that it is a provision that requires the Minister to form an opinion, belief or state of satisfaction as to whether the proposed action is not inconsistent with the Specified Bilateral Treaties: cf Timbarra at 65 [42] (Spigelman CJ). However, in my view, it is more relevant that s 140 is not situated in a “provision conferring power” on the Minister and is instead located within the structure of the EPBC Act which specifies the considerations and requirements that the Minister must take into account in the exercise of the power to grant or refuse to grant an approval: Timbarra at 65 [44] and 66 [51]. The relevant provisions that confer power upon the Ministers are ss 130(1) and 133(1). Neither s 130(1) nor s 133(1) specify that the exercise of power by the Minister in those provisions is conditional upon s 140 as a factual predicate or essential preliminary.

83    In this respect, it is significant that the empowering provisions are located in Subdiv A of Ch 4, Pt 9, Div 1 of the EPBC Act whereas s 140 is located within Subdiv B of the same Division which deals with “Considerations for approvals and conditions” (emphasis added). As noted above, Subdiv B specifies a range of considerations that the Minister must consider and take into account in deciding whether or not to approve the taking of the relevant action. This is reinforced by the specific text of s 140 that is expressed as applying to the Minister “In deciding whether or not to approve for the purposes of section 20 or 20A the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval…”. That text is more consistent with the subject matter of s 140 being a matter that the Minister must consider in deciding whether or not to approve the relevant action and what conditions to attach to such a decision as opposed to it being an essential preliminary or predicate to the exercise of the relevant power. Together, the text of s 140 and its location in the legislative scheme point towards it being one factor of many that must be evaluated in the decision-making process and points away from it being an essential preliminary that must be satisfied before the power in ss 130 and 133 is enlivened.

84    Further, the subject matter of s 140, which involves the Minister “not acting inconsistently with” Australia’s obligations under the Specified Bilateral Treaties, is consistent with it being a matter that requires the formation of an opinion by the Minister as opposed to it being a matter of objective fact as an “essential preliminary to the decision making process”: Timbarra at [52]. The requirement that, in deciding whether or not to approve the taking of the relevant action, the Minister must “not act inconsistently with” Australia’s relevant international obligations is consistent with a task that requires the Minister to form an opinion that the relevant action will not have that effect, as opposed to it being an objective fact that the relevant action is not in accordance with the relevant obligations. As a matter of substance, whether the decision to approve the relevant action is not inconsistent with a legal instrument such as a treaty requires the interpretation of the relevant instrument and its application, which lends itself to being a matter that requires the formation of an opinion, about which reasonable minds may differ. The present matter provides a case in point where, irrespective of the legally correct conclusion, reasonable minds might differ in their view as to whether the relevant action amounts to a “taking” of the protected migratory bird species and, if so, whether that conduct is or is not inconsistent with the Specified Bilateral Treaties.

85    This is especially the case given that the subject matter of s 140 involves an examination of whether the Minister has “not act[ed] inconsistently with” Australia’s obligations under particular legal instruments. As Mortimer J noted in Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178; 260 FCR 1 at 54 [215], in the context of a similarly worded provision of the EPBC Act, “a statutory imperative to act ‘not inconsistently with’ is intended by Parliament to be to some extent a softer requirement than an imperative to act ‘in accordance with’” and is intended “to give the responsible Minister more flexibility to impose conditions” which are not the subject of but nevertheless “not inconsistent with” Australia's relevant international obligations. Again, whether the Minister has not acted inconsistently with particular legal instruments lends itself to being a matter of opinion and impression, as opposed to an objective fact.

86    These conclusions are consistent with those reached by Griffiths J in Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042; 251 FCR 308 (Adani), whose conclusions were not the subject of the appeal in ACF Adani FFC (which was, in any event, dismissed). In Adani, Griffiths J considered an argument that a decision by the Minister to approve the construction of a coal mine was affected by error, because, contrary to s 137 of the EPBC Act, the Minister's decision was inconsistent with Australia's obligations under the World Heritage Convention (WHC): at 308 [65]. The Minister's position regarding the proper construction of Art 4 of the WHC was contended by the applicant to be “plainly wrong”: at 336 [85]. Griffiths J stated at 357 [201]–[202]:

The ACF did not suggest that the prohibition imposed by s 137 had the effect of making inconsistency with Australia’s obligations under the WHC a jurisdictional fact. It was a matter for the Minister to form a view, on proper legal grounds, whether or not giving approval to the taking of an action and any conditions which are attached would have the effect of creating an inconsistency with Australia’s obligations under the WHC.

The Minister was mindful of the prohibition imposed by s 137 when he made his decision. It is expressly referred to in [168] to [171] of his statement of reasons and is identified in Annexure A to that statement as one of the statutory provisions he took into account.

87    Although Griffiths J observed that it had not been suggested that s 137 gave rise to a jurisdictional fact, his Honour’s conclusion that the subject matter of the provision was one that required the Minister to “form a view, on proper legal grounds” was dispositive of the contentions that had been advanced by the applicant in that case. In the present case, the applicant contended that Griffiths J’s decision was not on point as it related to a different provision of the EPBC Act and is therefore not binding on me. I accept that contention. Nevertheless, Griffith J’s reasoning is persuasive and accords with the conclusion that I have independently reached as to proper construction of s 140.

88    As Spigelman CJ observed in Timbarra at [38], both “objectivity” and “essentiality” are inter-related elements in the determination of whether a matter is a jurisdictional fact. For the reasons, stated above, viewed within the structure and context of the Pt 9 of Ch 4 of the EPBC Act, s 140 is neither an objective nor essential preliminary or factual predicate to the exercise of power contained in ss 130(1) and 133(1) such that it does not give rise to a jurisdictional fact.

89    It follows that this aspect of the applicant’s challenge to the Approval Decision fails.

4.3    Invalidity

90    The applicant next contended that s 140 was jurisdictional in the sense that non-compliance with that provision leads to invalidity. In support of this contention, the applicant submitted that the text of s 140 was expressed in imperative terms which indicated a Parliamentary intention that non-compliance would result in invalidity. It was further submitted that this was consistent with the structure of the EPBC Act and its objects which included the protection of migratory bird species (ss 3(a)–(c)) and the honouring of international commitments (s 3(e)) such that s 140 was fundamental to these purposes. It was submitted that in view of these matters, it was unlikely that Parliament intended to “permit a scenario where the Minister can misunderstand or ignore the treaties, or even deliberately breach them, and yet produce a valid decision”.

91    I do not accept the applicant’s contentions. The fact that the language of s 140 is expressed in imperative terms (ie, that the Minister “must not act inconsistently with…”) is not determinative as to the question of invalidity. As was explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ):

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

(Emphasis added; citations omitted.)

92    More recently, in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628, Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ stated at 638 [27]–[29]:

Two other aspects of the principle of statutory construction expounded in Project Blue Sky are of present significance.

The first is that mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity. That is not to deny that juxtaposition of an imperative term (“must”) with a permissive term (“may”) to express different requirements of the one statutory scheme might in an appropriate statutory context indicate that the imperative term is used to express a legislative intention that non-compliance is to result in invalidity whilst the permissive term is used in contradistinction to express a legislative intention that non-compliance is not to result in invalidity.

The second is that identical imperative language might be used in a particular statutory scheme to express a suite of requirements, some of which will admit of one answer to the Project Blue Sky question and some of which will admit of another answer…

(Emphasis added; citations omitted.)

93    In the context of the text and structure of Pt 9 of Ch 4 of the EPBC Act, it is in my view significant that there is a distinction drawn between those obligations that are expressed to be mandatory considerations (as specified in s 136) and others that form part of the balance of matters that the Minister is required to consider including s 140 and which are not framed as mandatory considerations. Moreover, as addressed above, the subject matter and language of s 140, which is cast in terms of a “softer requirement” (than the language of “in accordance with”) and involves the formation of a legal opinion do not lend themselves to matters about which it can be said that there is an objectively ascertainable conclusion from which invalidity will follow.

94    That is not to say that the legality of the Approval Decision may not be challenged on other grounds relating to s 140, for example, if it was contended that the Minister or her delegate had failed to consider s 140. In Adani, Griffiths J did not decide the point whether non-compliance with s 137 of the Act would lead to invalidity but rejected the Minister’s contention “that the issue of compliance with s 137 is non-justiciable in this Court”: at 357 [205]. However, as noted above, Griffiths J concluded that the Minister had given consideration to the matters required by s 140 and the error alleged by the applicant in that case was not established.

95    In the present case, there was no issue taken that the Minister’s delegate had in fact turned his mind to the matters required by s 140 of the EPBC Act (other than that an issue was pressed that the delegate had misdirected himself as to the meaning of the word “taking”, which is dealt with below). The true substance of the applicant’s contention was that the Minister’s delegate had reached the objectively wrong conclusion. However, for the reasons already stated, I do not accept the premise upon which the applicant’s argument was based. That being the case, there was little more to the applicant’s argument as to invalidity than those which were advanced in support of its argument that the provision gave rise to a jurisdictional fact.

96    Accordingly, I am not satisfied as to this aspect of the applicant’s case.

4.4    The Approval Decision was not inconsistent with the Treaties

97    In any event, I am not satisfied that in making the decision to approve the relevant action, the Minister’s delegate acted inconsistently with Australia’s obligations under the Specified Bilateral Treaties.

98    All parties agreed that as a general rule, the Specified Bilateral Treaties were to be construed in accordance with general principles of treaty interpretation, as set out in Art 31 of the Vienna Convention on the Law of Treaties 1969. Relevantly, Arts 31 and 32 provide as follows:

Article 31

General rule of interpretation

1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)     any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b)     any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3.     There shall be taken into account, together with the context:

(a)     any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)     any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)     any relevant rules of international law applicable in the relations between the parties.

4.     A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

    Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a)     leaves the meaning ambiguous or obscure; or

(b)     leads to a result which is manifestly absurd or unreasonable.

99    The applicant’s contentions focussed on Art II(1) of each of the Specified Bilateral Treaties.

100    Article II(1) of JAMBA provides as follows:

Article II

1.    Each Government shall prohibit the taking of migratory birds or their eggs. However, exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations in force in each country in the following cases:

(a)     for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement;

(b)     for the purpose of protecting persons and property;

(c)     during hunting seasons established in accordance with paragraph 3 of this Article; and

(d)     to allow the hunting and gathering of specified birds or their eggs by the inhabitants of certain regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that adequate preservation of the species is not prejudiced.

101    Article II(1) of CAMBA provides as follows:

Article II

1.     Each Contracting Party shall prohibit the taking of migratory birds and their eggs. However, exceptions to that prohibition may be permitted in accordance with the laws and regulations in force in each country in the following cases:

(a)     for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement;

(b)     for the purpose of protecting persons or property;

(c)     during hunting seasons established in accordance with paragraph 3 of this Article; and

(d)     to allow the hunting and gathering of specified migratory birds or their eggs by the inhabitants of specified regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that adequate preservation of the species is not prejudiced.

102    Article 2(1) of ROKAMBA provides as follows:

ARTICLE 2

1.    Each Party shall prohibit the taking of migratory birds and their eggs except in the following cases and in accordance with the laws and regulations in force in each country:

(a)     for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement;

(b)     for protecting persons or property;

(c)     for hunting during hunting seasons or on hunting grounds established in accordance with paragraph 3 of this Article; and

(d)     for hunting and gathering of specified migratory birds or their eggs by the inhabitants of specified regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that the adequate preservation of the species is not prejudiced.

103    The applicant contended that for the purpose of each of the Specified Bilateral Treaties, the word “taking” means the removal of birds from the environment or their destruction including by way of unintentional, innocent, accidental, reckless or negligent killings. In support of this contention, the applicant submitted that the ordinary meaning of the word “take” is to “carry away, remove; extract; deprive or rid a person or thing”: citing the Shorter Oxford Dictionary (6th ed, 2007) “take” (def 51). The applicant relied upon two features of the definition: the first being that the word “take” connotes either the act of removing or destroying a thing, and the second feature being the focus upon the consequence (ie, the removal or destruction of the thing) regardless of the mental state of the person doing the taking. Relying upon these matters, the applicant submitted that the meaning of the word “taking” encompasses the unintentional, innocent, accidental, reckless or negligent removal, destruction and killing of the migratory species of birds that would be brought about by the approval of the Proposed Action.

104    The applicant submitted that three matters of context supported the conclusion that each of the Specified Bilateral Treaties prohibited unintentional, innocent, accidental, reckless or negligent death of the relevantly protected species of birds.

105    First, the applicant relied upon the surrounding text in Art II(1)(d) of each of the Specified Bilateral Treaties which used the word “hunting” which it was said intended to refer to intentional killing by contradistinction to use of the word “taking” in Art II(1)(a) which it was said was consistent with the latter word encompassing the innocent killing of birds encompassed by the word “taking”.

106    Second, the applicant relied upon the history of bilateral treaties between other nation-states as informing the content of the Specified Bilateral Treaties. It was submitted that early treaties between the United States of America (US) and Canada in 1916 (see Art 2 of the Convention Between the United States and Great Britain for the Protection of Migratory Birds, signed 16 August 1916 (entered into force 7 December 1916)) and with Mexico in 1936 (see Art 2 of the Convention for the Protection of Migratory Birds and Game Mammals, signed 7 February 1936 (entered into force on 15 March 1937)) required the US to prohibit the hunting, taking and killing of migratory birds leading to domestic legislation making it unlawful to “pursue, hunt, take, capture [or] kill” those birds. The applicant submitted that by 1939, domestic legislation in the US was understood as imposing strict liability such that “even accidental killings were unlawful”: Migratory Bird Treaty Act 1918, 16 USC § 703. In 1972, the US and Japan made a treaty prohibiting the “taking” of migratory birds, which the applicant submitted gave rise to the “overwhelming inference” that the parties to that treaty intended to “preserve the prevailing position” in the US: see Art 3(1) of the Convention Between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment, signed 4 March 1972 (entered into force 19 December 1974) (Japan–US MBTA).

107    It was submitted that JAMBA was entered into in 1974 against the background of these other bilateral treaties, and the same position applied when CAMBA and ROKAMBA were entered into at a later time. The applicant acknowledged that the Bonn Convention (which was entered into in 1979) referred to “deliberate killing” but submitted that this should be given no weight as the wording of JAMBA, CAMBA and ROKAMBA were each in substantially identical terms to the treaty between the USA and Japan. The applicant submitted that the “overwhelming inference is that the parties intended ‘taking’ to have the same meaning across the different treaties descended from the 1972 United States-Japan treaty”.

108    Third, the applicant submitted that its contention as to the meaning of the word “taking” was consistent with the evident purpose of the Specified Bilateral Treaties which was to protect migratory birds. It submitted that this purpose would be undermined by permitting reckless, negligent and accidental killings of migratory birds. It further submitted that imposing strict liability by giving the word “taking” an expanded meaning to include innocent killings served the objects of protection and deterrence promoted by the Specified Bilateral Treaties because it encouraged the parties to be cautious when engaging in or permitting activities which posed a risk to migratory birds.

109    The applicant submitted that, taking each of the abovementioned textual and contextual matters into account, the Minister’s approval of the Proposed Action by making the Approval Decision was inconsistent with Australia’s obligations under the Specified Bilateral Treaties because it approved action that involved the “taking” of migratory birds. Specifically, the applicant submitted that there were five species of migratory birds in the vicinity of the proposed Wind Farm which were protected by the Specified Bilateral Treaties that would be affected by the operation of the Wind Farm including the White-throated Needletail, the Fork-tailed Swift, the Barn Swallow, the Latham’s Snipe and the Oriental Cuckoo. It submitted that the approval of the Proposed Action in relation to the Wind Farm exposed these species to the risk of being innocently, negligently or recklessly killed and therefore involved a “taking” of them in way that offended the prohibitions in the Specified Bilateral Treaties.

110    The applicant also faintly submitted in its written submissions that ss 20 and 20A of the EPBC Act also offended the Specified Bilateral Treaties in that these provisions only prohibited “significant” impacts to the listed species. This argument was not further developed and was not addressed in oral submissions. It was not central to the applicant’s arguments and was not pressed as such, and, accordingly, it is not necessary to address it in these reasons. The central argument advanced by the applicant was that the Approval Decision “lifts” the prohibitions contained in ss 20 and 20A and thereby removed the protections for the five relevant migratory species of birds protected by one or more of the Specified Bilateral Treaties.

111    I do not accept the applicant’s contentions.

112    As a starting point, the applicant’s submissions proceeded on the incorrect basis that Art II(1) in each of CAMBA, JAMBA and ROKAMBA give rise to absolute or blanket prohibitions. This is not correct. In order to explain why, it is necessary to examine the terms of the Specified Bilateral Treaties in their context and in the light of their objects and purpose: Art 31(1) of the Vienna Convention.

113    It is significant that, for example, Art II(1) of JAMBA (signed in 1974) provides that “[e]ach Government shall prohibit the taking of migratory birds or their eggs” but “exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations in force in each country …” in particular cases (emphasis added). Relevantly, Art II(1)(a) of JAMBA specifies that an exception applies to the prohibition on the “taking” of migratory species for “for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement” (emphasis added). Although not explicitly identified as such, the objects identified in the preamble of JAMBA include the “protection of migratory birds and birds in danger of extinction” and co-operation between the treaty parties in “taking measures for the management and protection of migratory birds and birds in danger of extinction and also for the management and protection of their environments.” Articles IV(3), V and VI of JAMBA respectively provide that each Government shall “encourage the conservation of migratory birds and birds in danger of extinction”, “endeavour to establish sanctuaries and other facilities for the management and protection of migratory birds” and “endeavour to take appropriate measures to preserve and enhance the environment of birds protected under the provisions of this Agreement”.

114    CAMBA (signed in 1986) contains similar provisions. Article II(1) provides that “[e]ach Party shall prohibit the taking of migratory birds and their eggs except in the following cases and in accordance with the laws and regulations in force in each country …” in particular cases (emphasis added). Article II(1)(a) specifies that an exception applies to the prohibition on the “taking” of migratory species for “for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement” (emphasis added). The evident objects of CAMBA are broadly similar to those of JAMBA. Although the preamble to CAMBA is shorter than the counterpart in JAMBA, it nevertheless recognises “the existence of special international concern for the protection of migratory birds and” and identifies the desire “to co-operate in the protection of migratory birds and their environment”. Like Arts IV(3), V and VI of JAMBA, Arts III(3) and IV(a)–(b) of CAMBA provides that each Contract Party shall “encourage the conservation of migratory birds” and “endeavour, in accordance with its laws…” to “[e]stablish sanctuaries and other facilities for the management and protection of migratory birds” and “[t]ake appropriate measures to preserve and enhance the environment of migratory birds”.

115    ROKAMBA (signed in 2006) also contains similar provisions. Article 2(1) provides that “[e]ach Party shall prohibit the taking of migratory birds and their eggs except in the following cases and in accordance with the laws and regulations in force in each country…” (emphasis added). Article 2(1)(a) of ROKAMBA specifies that an exception applies to the prohibition on the “taking” of migratory species for “for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement” (emphasis added). The ostensible objects of ROKAMBA are similar to those of JAMBA and CAMBA. They include the “protection of migratory birds and their habitats” and co-operation between the treaty parties in “taking measures for the management and protection of migratory birds and their habitat and the prevention of the extinction of certain birds.” Articles 4, 5 and 6 of ROKAMBA require the parties to endeavour to take “appropriate measures to conserve and improve the environment of [the protected] birds”, “seek means to prevent damage to such birds and their environment” and “take measures necessary to serve the purposes of this Agreement”.

116    Thus, a close examination of the Specified Bilateral Treaties demonstrates that there are exceptions to the prohibitions contained in Art II(1) of each Treaty. As the Proponent correctly submitted, the exceptions contained in each Treaty, and the other provisions to which I have drawn attention, contemplate that “domestic legislation and regulations will be passed that prohibit taking, subject to appropriate exceptions that are embodied in domestic laws and regulations”. Viewed in this context, it is not correct that the Specified Bilateral Treaties impose absolute prohibitions.

117    Turning now to the first of the applicant’s three primary strands of submissions on this ground of review, I am not satisfied that the applicant’s contentions as to the ordinary meaning to be given to the word “taking” for the purpose of the Specified Bilateral Treaties is correct as a matter of text, context or purpose.

118    The applicant’s submissions as to the meaning of the word “taking” proceeds from one of many dictionary meanings ascribed to the word “take” in but one of several authoritative dictionaries: see Provincial Insurance v Consolidated Wood (1991) 25 NSWLR 541 at 561 (Mahoney JA) where his Honour observed that “there is no single authoritative dictionary and the court would, I think, improperly restrict itself if it had reference to one dictionary and not to another”; cf 552–3 where Kirby P, having regard to the nuances of language, observed that it is generally safer to rely on the Macquarie Dictionary in preference to overseas dictionaries in the Australian context. The applicant’s contention that the word “take” includes “innocent killings” or “reckless, negligent and accidental killings” is based on the dictionary meaning of the word “take” as being to “carry away, remove; extract; deprive or rid a person or thing”. However, in its ordinary English usage and meaning, the word “take”, as a transitive verb, has other meanings. For example, the word is also defined as meaning, “To catch or capture (a wild beast, bird, fish, etc.)” or “To deprive a person of or remove (something) unlawfully; to steal”. The ordinary meaning of the word “taking” (according to the Oxford English Dictionary, 3rd Edition) is “seizure, capture; apprehension, arrest; the action of catching fish, game, etc. (noun)” or “to catch or capture (a wild beast, bird, fish, etc.). Also of an animal: to seize or catch (prey)”. None of the various defined meanings are consonant with “innocent” or “reckless, negligent and accidental killings”. Rather, each of the meanings of the word “take” indicates positive and intentional acts of removal and deprivation, such as seizing, catching, stealing or unlawfully harvesting, hunting, intentional killing, capturing or trapping.

119    The rival meanings that might be ascribed to the words “take” or “taking” have been a feature of litigation in the USA including under the Migratory Bird Treaty Act 1918, 16 USC § 703 (MBTA). As one author has observed (Waeckerle LA, A Murder Most Fowl: United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) and Incidental Killings Under the Migratory Bird Treaty Act (2018) 96 Nebraska Law Review 742 at 744–745):

Since its implementation, however, application of the MBTA has been polluted by conflicting judicial interpretations. Specifically, a federal circuit split has developed regarding the proper interpretation of the word “take” under § 703(a) of the MBTA for purposes of misdemeanor violations. Some circuit courts have held that under the Act, taking a bird only includes a direct, affirmative action by a human, like hunting. In contrast, others have interpreted take to mean not only direct interaction but also incidental interference with the birds. These inconsistent rulings result in widely different judicial outcomes depending on where the violator injured the MBTA-protected bird.

120    The rival interpretations were canvassed by the US Court of Appeal for the Fifth Circuit in US v CITGO Petroleum Corp 801 F3d 477 (5th Cir 2015) at 479. There, the Fifth Circuit Court of Appeal reversed convictions for indirectly “taking” migratory birds where those birds died due to a company’s failure to cover its oil tanks, causing migratory birds to fall in and drown in them. It was accepted that the company’s conduct was an unintentional omission. The Court held that, based on the text of the MBTA, its common law origins and examination of other statutes, the word “taking” is “limited to deliberate acts done directly and intentionally to migratory birds”: at 488–9.

121    The decision in CITGO demonstrates that the “ordinary meaning” of the word “taking” is contestable and must be given a meaning that accords with its context and purpose. The task of interpreting international treaties is akin to the task of statutory construction that the Court is accustomed to undertaking when ascertaining the meaning of a particular provision of domestic law: see NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52 at 69 [55] (Callinan, Heydon and Crennan JJ) referring to (with approval) the decision of Stone J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60; 150 FCR 522 at 553 [122] that: “it is difficult to see a material difference between the principles governing the interpretation of international treaties and those ordinarily adopted in respect of domestic legislation”. The requirements of the latter task are settled: see eg CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 4; 239 CLR 27 at 31 [4] (French CJ), 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 at 368 [14] (Kiefel CJ, Nettle and Gordon JJ). In this regard, the observations of Mason J in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 are particularly instructive:

Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.

122    To focus on dictionary definitions is to ignore that the task of interpreting a particular treaty provision is aimed at arriving at an “ordinary meaning” that accords with context and purpose: Art 31(1) of the Vienna Convention. The danger of preoccupation with dictionary definitions has been recognised domestically and internationally. As Judge Learned Hand said in Cabell v Markham 148 F2d 737 (2d Cir 1945) at 739 [3,4] (quoted with approval by French CJ, Heydon, Crennan and Bell JJ in General Commissioner of Taxation v BHP Billiton Ltd [2011] HCA 17; 244 CLR 325 at 340 [49]):

But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

123    As I return to below, it is also important to bear in mind that the words being construed here are contained in a legal instrument that is a treaty between nation-states that not only have different legal systems and judicial techniques to each other, but also have differences in conventions of language and its usage (including in the written expression of the language and rules of grammar) such that there may not be a “perfect linguistic equivalence” between the nation-states: see eg Margiotta Broglio C and Ortino F, “Treaty interpretation, multilinguism, and the WTO dispute settlement system: towards the comparative translation paradigm?” (2024) 15(1) Journal of International Dispute Settlement 487 at 490. It should not be assumed that the meaning of words drawn from English based dictionaries necessarily reflect the (at times) subtle and nuanced differences in the so-called “ordinary meaning” of words across languages and cultures as may be applicable to the construction of multilingual treaties: see eg Kingdom of Spain v Infrastructure Services Luxembourg Sàrl [2021] FCAFC 3; 284 FCR 319 at [81]-[89] (Perram J, Allsop CJ and Moshinsky J agreeing). The parties here assumed, without addressing the point, that the ordinary English meaning and usage of the word “taking” would govern the outcome and that this meaning is to be presumed to be the same in each of the other languages in which the Specified Bilateral Treaties have been authenticated.

124    Whilst one starts with the text, one does not end there. In Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225, McHugh J stated at 251–252 that Art 31(1) of the Vienna Convention contained three separate but related principles:

First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanta. Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties’ intentions. This principle has been described as the “very essence” of a textual approach to treaty interpretation. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose.

125    It is also not to be forgotten that, as Lord Lloyd of Berwick said in Adan v Secretary of State for Home Department [1999] 1 AC 293 at 305:

Inevitably the final text [of a Treaty] will have been the product of a long period of negotiation and compromise. One cannot expect to find the same precision of language as one does in an Act of Parliament drafted by parliamentary counsel…It follows that one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language.

126    Applying these principles, in my view, the meaning of the word “taking” which encompasses positive and intentional acts of removal and deprivation, such as intentional killing, hunting, catching, stealing or unlawfully harvesting, capturing or trapping, etc, sits more conformably with the obligations assumed inter se by the nation-state parties to the Specified Bilateral Treaties. The starting position here is that the Specified Bilateral Treaties record an agreement reached between nation-states. The practical purpose of the Treaties is to record promises made as between the relevant nation-states as to what they will do by way of domestic enactment. The language of the Treaties is consistent with this fact. For example, as set out above, language such as “endeavour to” and “co-operate to take measures” are indicative of promises made inter se to attend to matters by way of domestic regulation through (where relevant) co-operative measures. The text of Art II(1) of each of the Specified Bilateral Treaties also gives an indication that the relevant nation-states have agreed to do what they will do by way of domestic regulation. The words “shall prohibit” are instructive in that they record that each nation-state has agreed that it will do something to bring about the promised prohibition. This accords with the generally accepted position in the Australian legal tradition that the rights and obligations contained in treaties are not incorporated into Australian law unless and until valid domestic legislation is passed implementing the specific provisions: see eg Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 305 (Mason CJ and McHugh J); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286–7 (Mason CJ and Deane J); Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 at 481–2 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at 9 [19] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at 597 [20] (Kiefel CJ, Keane, Gordon and Steward JJ).

127    Viewed in this context, a question arises as to whether the respective nation-state parties to the Specified Bilateral Treaties intended that they would be committing to enact domestic regulation that prohibits the unintended, accidental, negligent or reckless death of migratory birds. One can conceive innumerable acts or omissions – whether innocent, accidental, negligent or reckless – which may bring about the unintended and regrettable death of birds. These types of matters were considered in CITGO at 492–3:

There is no doubt that a hunter who shoots a migratory bird without a permit in the mistaken belief that it is not a migratory bird may be strictly liable for a ‘‘taking’’ under the MBTA because he engaged in an intentional and deliberate act toward the bird. Cf. Sweet Home, 515 U.S. at 722, 115 S.Ct. at 2425 (Scalia, J., dissenting) (hunter’s mistaken shooting of an elk is a ‘‘knowing’’ act that renders him strictly liable under the ESA); United States v. Kapp, 419 F.3d 666, 673 (7th Cir.2005) (holding Kapp liable under the ESA over objection that the exotic cats he killed were unprotected hybrids). A person whose car accidentally collided with the bird, however, has committed no act ‘‘taking’’ the bird for which he could be held strictly liable. Nor do the owners of electrical lines ‘‘take’’ migratory birds who run into them. These distinctions are inherent in the nature of the word ‘‘taking’’ and reveal the strict liability argument as a non-sequitur.

128    As further explained at 493–4:

The scope of liability under the government’s preferred interpretation is hard to overstate. The MBTA protects approximately 836 species of birds. Brigham Oil & Gas, L.P., 840 F.Supp.2d at 1202. According to the U.S. Fish and Wildlife Service, between 97 and 976 million birds are killed annually by running into windows. U.S. FISH & WILDLIFE SERV., MIGRATORY BIRD MORTALITY, MANY HUMAN–CAUSED THREATS AFFLICT OUR BIRD POPULATIONS 2 (2002). Communication towers kill an additional four to five million birds each year, though the government estimates the number may be closer to forty or fifty million. Id. Cars may kill approximately 60 million birds each year. Id. Even domesticated cats are serial violators of the MBTA. In Wisconsin alone, the government estimates that domesticated cats killed 39 million birds. Id. The government refused to speculate on the number of birds that cats kill nationwide, though it would certainly be ‘‘much higher.’’ Id.

If the MBTA prohibits all acts or omissions that ‘‘directly’’ kill birds, where bird deaths are ‘‘foreseeable,’’ then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA. This scope of strict criminal liability would enable the government to prosecute at will and even capriciously (but for the minimal protection of prosecutorial discretion) for harsh penalties: up to a $15,000 fine or six months’ imprisonment (or both) can be imposed for each count of bird ‘‘taking’’ or ‘‘killing.’’ Equally consequential and even more far-reaching would be the societal impact if the government began exercising its muscle to prevent ‘‘takings’’ and ‘‘killings’’ by regulating every activity that proximately causes bird deaths. The absurd results that the government’s interpretation would cause further bolsters our confidence that Congress intended to incorporate the common-law definition of ‘take’ in the MBTA.

129    The observations made in CITGO are compelling.

130    I do not accept that, as a matter of context and purpose, the nation-state parties to each of the Specified Bilateral Treaties were, upon entering into them, agreeing to regulate by domestic law the many and innumerable ways in which birds may come to die by unintentional acts or omissions. In my view, the meaning of the word “taking” which encompasses positive and intentional acts of removal and deprivation, such as intentional killing, hunting, catching, stealing or unlawfully harvesting, capturing or trapping, etc, sits more conformably with the obligations assumed by the nation-states inter se. These are forms of conduct that are certain and able to be more readily regulated by domestic law than the myriad of unintentional, innocent, accidental, reckless or negligent acts or omissions that may indirectly result in the death of migratory birds. I am not persuaded that the nation-state parties to the Treaties intended the word “taking” to apply to such conduct such that they were obliged to enact domestic laws to regulate the innumerable and indirect means by which migratory birds may come to die. Accordingly, I do not accept the applicant’s contentions on this point.

131    Nor do I accept that adopting and applying a meaning of the word “taking” as excluding innocent, accidental, unintended, reckless or negligent acts or omissions that indirectly lead to the death of migratory birds is inconsistent with the objects and purpose of the Specified Bilateral Treaties. The objects of the Specified Bilateral Treaties are also promoted by reading the prohibition as applying in respect of positive and intentional acts of removal and deprivation, such as killing, catching, stealing or unlawfully harvesting, capturing or trapping. As set out above, reading the obligations contained in the Specified Bilateral Treaties in this way enables the nation-state parties to enact by way of domestic regulation prohibitions on conduct in a more certain and concrete way than seeking to regulate forms of conduct that may have the indirect effect of causing death to the relevant species of birds.

132    Contrary to the applicant’s submissions, the use of the word “hunting” in Arts II(1)(d) of each of the Specified Bilateral Treaties does not point to a distinction with the word “take”, but indicates that it is a form of “taking” which falls within one exception to the prohibition in the limited circumstances agreed to by the parties to the Specified Bilateral Treaties. I do not accept the applicant’s submissions as to the significance of the use of the word “hunting” in Art II(1)(d) of each of the Specified Bilateral Treaties. In essence, the applicant contended that the word “hunting” is used in contradistinction to the word “taking” to draw a distinction of intentionality, with the word “hunting” denoting intentional acts of killing while the word “taking” denotes all direct acts of killing, whether intentional or not. There are several difficulties with this interpretation. The first difficulty is that the English meaning of the word “hunting” may readily be interpreted as one form of “taking” which falls within one exception to the prohibition in the limited circumstances agreed to by the parties to the Specified Bilateral Treaties. A further difficulty is that it fails to appreciate that the prohibition in Art II(1) applies not only to migratory birds but also to their eggs. In the ordinary sense of the word, hunting involves the pursuit and killing of living animals. It would be inapt to proscribe the “hunting” of bird eggs. Furthermore, the applicant failed to grapple with the fact that the text of the relevant exception does not refer to “hunting” in isolation. It also refers to “gathering”. For example, Art II(1) of each of the Specific Bilateral Treaties provides (with minor immaterial differences) that:

1.     Each Government shall prohibit the taking of migratory birds or their eggs. However, exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations in force in each country in the following cases:

    …

(d)     To allow the hunting and gathering of specified birds or their eggs by the inhabitants of certain regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that adequate preservation of the species is not prejudiced.

133    This illustrates the nuance of the ordinary English meaning of the word “taking”, which is capable of being utilised to express the prohibition in relation to both birds and their eggs.

134    Further, as noted above, the applicant’s focus upon the dictionary definition of the word “taking”, and the nuanced distinctions as to the different meanings that can be attributed to that word, conceals other matters that were not explored by the parties, such as the inherent biases towards the adoption of Western conventions as to language and its usage and meaning. The parties did not address Art 33 of the Vienna Convention, which provides as follows:

Article 33

Interpretation of treaties authenticated in two or more languages

1.     When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2.     A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3.     The terms of the treaty are presumed to have the same meaning in each authentic text.

4.     Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

135    As can be seen, Art 33(1) of the Vienna Convention provides that the text of a multilingual treaty is equally authoritative in each language in which it has been authenticated. However, there are certain exceptions, including where the treaty provides (or the parties otherwise agree) that a particular text shall prevail or where a comparison of the authentic texts discloses a difference of meaning: Art 33(1) and (4). The latter exception is engaged only where an application of the primary rules of treaty interpretation – ie, those set out in Arts 31 and 32 – does not resolve the difference in meaning. However, other than in these instances, the terms of the treaty are presumed to have the same meaning in each authentic text: Art 33(3).

136    The Specific Bilateral Treaties disclose that they were each “equally authentic” in two languages, being English and either Chinese, Japanese or Korean (as applicable). The applicant’s argument assumed the multilingual meaning of the word “take” was the same in each language (presumably relying upon Art 33(3)). It is not clear to me that these assumptions can be readily made. For example, an examination of the authenticated Korean text of ROKAMBA reveals that Art II(1) utilises two verbs rather than a single verb such as “taking”. For ROKAMBA, the word “포획” (which roughly translates to seizure or capture) is used in relation to migratory birds (“철새”) whereas the word “채취하다” (which roughly translates to collect, gather or take) is used in relation to the eggs of the migratory birds (“그 알”): see 표준국어대사전, Standard Korean Language Dictionary (1st ed, National Institute of Korean Language, 1999) being an official dictionary published by the National Institute of Korean Language; see further 국립국어원한국어-영어학습사전 (National Institute of Korean Language Korean-English Learners’ Dictionary). An examination of the authenticated Chinese text of CAMBA is to a similar effect: the prohibition (“禁止”) is relevantly against both the hunting (“猎捕”) of migratory birds (“候鸟”) as well as the picking up, collecting or gathering (“拣”) of their eggs (“其鸟蛋”): see现代汉语词典, Contemporary Chinese Dictionary (7th ed, Commercial Press, 2016), being an official dictionary for Modern Standard Chinese that is authoritative in Mainland China; see also 新世纪汉英大词典, A New Century Chinese-English Dictionary (Foreign Language Teaching and Research Press, 2004) at pp 666 (候鸟), 768 (拣 and 剑), 826 (禁止) 1002 (猎捕), 1251 (其). Facially at least, the authenticated text of the Treaties in these other languages suggests that the prohibition in Art II(1) is aimed at preventing deliberate acts which are intended to directly interfere with migratory birds or their eggs. However, the parties did not address these matters and did not address whether it would be as legitimate for the Court to have regard to foreign text and foreign dictionaries as it would be to have regard to English text and English dictionaries, even though the relevant instruments are multilingual and authenticated as such. As the parties did not address these matters, it is unnecessary to further consider them. They do, however, point to assumptions made in the applicant’s submission that occasion a need for caution in the rigid application of one particular meaning of the word “taking” drawn from one English dictionary.

137    Nor do I consider that the meaning of the word “taking” should be informed by the content of treaties between the US and other countries which preceded entry into JAMBA. As is made plain in the Vienna Convention, the meaning of the treaty is to be ascertained from its history, not the history of the treaties between other countries. The apparent exceptions to this are twofold: first, where the ordinary meaning is established as a matter of settled international law; and second, as a matter of context for the purpose of interpretation where one or more of the parties have made another treaty in connection with the treaty and the other parties accept this other treaty as being related to the treaty: Art 31(2)(b) of the Vienna Convention. As for the latter matter, this may permit consideration of the Japan–US MBTA when interpreting the ordinary meaning of provisions of JAMBA. By contrast, this would not be permissible when interpreting CAMBA or ROKAMBA. In any event, no such argument was advanced. Nor is there any evidence before me that “taking” has a settled ordinary meaning in international law or that Australia (as the other party for the purposes of Art 31(2)(b)) accepted that the Japan–US MBTA was related to JAMBA.

138    Further, the applicant adduced no evidence to suggest that the parties to the bilateral treaties at issue in this case intended the term “taking” to be given a special meaning that diverges from its ordinary meaning and instead accords with the meaning ascribed to it in other bilateral treaties involving different parties, as ascertained by reference to some US domestic law cases interpreting or implementing those other treaties. This is a fundamental shortcoming in the applicant's reframed argument on this ground because:

(a)    a general rule of treaty interpretation is that the interpretation of a term in one treaty has no direct bearing on the same term in a different treaty. In particular, Art 34 of the Vienna Convention (titled 'General rule regarding third States') provides that “[a] treaty does not create either obligations or rights for a third State without its consent.”

(b)    further, Art 31.4 of the Vienna Convention provides that “[a] special meaning shall be given to a term if it is established that the parties so intended.” The applicant has not “established” the predicate to this argument.

139    There was no suggestion that the word “taking” had such a meaning as a matter of settled international law. Further, as noted above, there is by no means a uniform view that has been adopted in the US as to the meaning of the word “taking”.

140    It is also to be noted that Australia is a signatory and party to the Bonn Convention. Article 5 of the Bonn Convention provides that:

5.     Parties that are Range States of a migratory species listed in Appendix I shall prohibit the taking of animals belonging to such species. Exceptions may be made to this prohibition only if:

(a)     the taking is for scientific purposes;

(b)     the taking is for the purpose of enhancing the propagation or survival of the affected species;

(c)     the taking is to accommodate the needs of traditional subsistence users of such species; or

(d)     extraordinary circumstances so require;

provided that such exceptions are precise as to content and limited in space and time. Such taking should not operate to the disadvantage of the species.

141    The Bonn Convention defines the word “taking” to mean “…taking, hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct”. This definition, having regard to the types of conduct that are caught by the definition (all of which involve intentional, direct acts relative to the animals), suggests that the word “taking” does not have the breadth of meaning advanced by the applicant. However, ultimately, little assistance can be gained by pointing to other treaties as bearing upon the meaning of the words of the Specified Bilateral Treaties.

142    Finally, the applicant’s submission that the Minister’s approval of the proposed action was inconsistent with the Specified Bilateral Treaties because it gave rise to the “taking” of the protected migratory species of birds was far too general and lacking in specificity. The starting position for such an analysis is that, in conformance with its obligations, Australia has enacted a regime of environmental regulation by way of the EPBC Act which includes extensive protections including in relation to “listed migratory species”. Sections 20 and 20A prohibit a person from taking action that has, will have or is likely to have significant impacts on “listed migratory species”. Further, as set out above, where an action is proposed that may have these possible effects, it requires Ministerial approval but only after a process of assessment, including opportunities for public comment, and which requires the relevant Minister not to act inconsistently with the Specified Bilateral Treaties.

143    The approval of the proposed action needs to be seen in the context of the conditions which attach to it. In the reasons given for making the Approval Decision, the delegate observed that a number of particular migratory bird species were known, or had the potential, to occur in the project area and specifically identified the treaties that applied to the birds. The delegate identified that there were risks that could arise to these species, but was satisfied that the imposition of conditions would minimise those risks. The approval of the proposed action does not authorise the taking of birds. Rather, it seeks to implement a series of measures designed to control and eliminate or minimise the risk of death, injury or other harm to the birds. In my view, the Minister’s approval of the Proposed Action on the basis of these Conditions was not tantamount to conduct that was inconsistent with the obligations contained in the Specified Bilateral Treaties.

144    Accordingly, I am not satisfied that in deciding to approve the Proposed Action, the Minister acted inconsistently with the Specified Bilateral Treaties for the purposes of s 140 of the EPBC Act.

4.5    Conclusion as to the Migratory Species Ground

145    For the foregoing reasons, the Migratory Species Ground fails.

5.    THE BASELINE MEASURES GROUND

146    The applicant’s case in relation to the Baseline Measures Ground relates to the "baseline measures" which formed part of the Proponent's initial referral of its proposed action under the EPBC Act.

147    The essential point made by the applicant is that there is a “mismatch” or disconformity between the mitigatory measures specified in the Referral Form (specifically, in the Preliminary BBMP) and the action that was approved by the Approval Decision. The applicant contends that this disconformity means that the “action” approved by the Minister in the Approval Decision is beyond power because the Minister has not approved the “particular action” that was referred by the Proponent.

148    I do not accept the applicant’s contentions but to explain why it is first necessary to step out the applicant’s arguments.

149    As noted above, by way of the Referral Form that the Proponent submitted to the Department, the Proponent identified the Proposed Action as well as the measures that would be taken to mitigate its impact. Section 4 of the Referral Form set out the “Measures to avoid or reduce impacts” and Section 4.1 outlined a description of those measures as follows:

Measures to avoid or reduce impacts

4.1 Describe the measures you will undertake to avoid or reduce impact from your proposed action

The Proposed Action will implement the environmental mitigation hierarchy of avoid, minimise and mitigate impacts to relevant MNES during the detailed design phase of the Proposed Action and will continue to implement this throughout the life of the Proposed Action. Details of the range of measures that will be implemented to avoid and reduce potential impacts is provided in Section 6 of the MNES Report (Att A-MNES_Impact Assessment). These are summarised below.

…

A comprehensive avoidance and mitigation measures will be delivered via the implementation of the Upper Burdekin Biodiversity Management Framework (BMF – provided as Att C - Biodiversity Mgmt Framework) and associated management plans. The BMF establishes suitable controls to eliminate or minimise the risks to the environment to a level that is low, negligible or reduced to as low as reasonably practicable. It provides the overview for the environmental management of the construction and operation phases of the UBWF.

The framework is comprised of:

-    The overarching BMF, which sets out relevant statutory requirements; Windlab’s environmental policy and commitments; and implementation and compliance requirements across all environmental management plans.

-     A Vegetation Management Plan (VMP), which details the environmental management requirements for managing impacts on vegetation during the construction stage of the Proposed Action.

-     A Fauna Management Plan (FMP), which details the environmental management requirements for managing impacts on fauna during the construction stage of the Proposed Action.

-     A Bird and Bat Management Plan (BBMP), which details the environmental management requirements for managing impacts associated with collisions risk during the operational stage of the Proposed Action.

-     Additional avoidance and mitigation measures specific to MNES species are highlighted within the VMP and FMP.

There will be ongoing opportunities to further reduce the impacts to MNES as the final …

150    The BMF was attached to the Referral Form and that document stated that the BBMP was attached to the BMF as Appendix C. Appendix C contained the Preliminary BBMP. Section 4.1 of the Preliminary BBMP included “good practice management and mitigation measures” to “reduce the likelihood of turbine collisions for birds and bats”. These were later referred to as the “baseline measures”. The base line measures that were specified in Section 4.1 of the Preliminary BBMP included “[l]ow wind speed curtailment”, “[p]rovision of a collision free zone above the vegetated canopy” and limitations on the light emitted by the turbines.

151    The applicant contended that the “action” that was referred to the Minister for approval was the particular action specified in the Referral Form including on the terms set out in the Preliminary BBMP. It submitted that this was “a single proposal, and no alternatives were put forward…[i]t was certainly not suggested that operation of the Wind Farm without the baseline measures in place was sought”. Whilst the applicant acknowledged that the Proponent was able to, and did, make variations to its proposed action, it submitted that there were no changes made to the Preliminary BBMP and the baseline measures that it contained. Accordingly, the applicant contended that the Minister was required to “approve” the action as proposed in the Referral Form, but did not do so.

152    It is necessary to refer to the Approval Decision to make sense of the applicant’s contention. The first page of the Approval Decision stated as follows:

153    The applicant focussed upon the text appearing in the table under the heading “Approved Action”. It submitted by reference to this table that the “action” that was approved was “To construct, operate and decommission” the Wind Farm. The applicant’s primary contention was that the “headline approval [was] simply to ‘operate’ the Wind Farm, subject to various conditions” and that “none of the conditions require the ‘baseline conditions’ to be implemented” such that the Approval Decision read as a whole does not require those measures to be taken. The applicant submitted that, “[a]ccordingly, it follows that the Minister simply approved the ‘operation’ of the Wind Farm, on an unrestricted basis, and without the baseline measures” (emphasis in original).

154    The applicant submitted that it was beyond power for the Minister to make a decision that did not conform with the action proposed in the Referral Form. It submitted that the text of s 133(1) compels that conclusion because it speaks of the Minister approving “the” action and the use of the definite article clearly referred to the particular action specified by the Proponent in the Referral Form, subject to any alternative proposals put forward by the applicant under s 133(1A). The applicant further contended that the structure and context of the approval process also compelled this conclusion because the process of assessment, public comment and other steps were linked to that which had been proposed in the Referral Form.

155    In response to these contentions, the respondents submitted that the applicant’s characterisation of the Approval Decision was “artificial”. The respondents pointed out that the text of the “Approved Action” included the notation “[See EPBC Act referral 2021/9066 …].” The respondents submitted that this notation made it plain that the Minister was approving the action that had been specified in the Referral Form including in its attachments (which attached the Preliminary BBMP). In response to these submissions, the applicant submitted that, if the Court accepted this characterisation, then, the Court should make a declaration that the Approval Decision was one that approved the operation of the Wind Farm subject to the baseline measures specified in the Preliminary BBMP as contained in the BMF that was attached to the Referral Form. The respondents opposed such declaratory relief being granted in circumstances where it was not pressed as a formal prayer for relief in the proceedings.

156    The respondents further submitted that the applicant’s contentions failed to pay proper regard to the specific conditions that were imposed on the approval of the Proposed Action as set out in the Conditions at Annexure A of the Approval Decision. The respondents contended that the Conditions were consistent with the subject matter of the Preliminary BBMP and provided a direct answer to the contention that the delegate approved the “unconstrained” operation of the Wind Farm. In this respect, it was submitted that Conditions 68 to 81 as set out in Annexure A of the Approval Decision contemplate the preparation of a BBMP prior to the commissioning of the turbines. Particular emphasis was placed on Condition 78(d) which provides that “[t]o avoid, mitigate and manage harm to relevant EPBC Act listed bird and bat species, the BBMP must include an adaptive management framework…The adaptive management framework must, at a minimum …detail avoidance and mitigation measures to be implemented”.

157    The respondent’s submissions should be accepted.

158    The applicant’s contentions proceed on a narrow characterisation and reading of the Approval Decision which do not accord with a fair reading of the Decision when read together with the Conditions. The Approval Decision not only specified the Referral Form in the identification of the “Approved Action”, it also expressly stated that the approval was subject to the “Conditions of approval” as set out in Annexure A to the Approval Decision. A fair reading of these parts of the Approval Decision and the Conditions makes it plain that the Minister did not approve the operation of the Wind Farm on an unrestricted basis and without the requirement for there to be conditions directed to the elimination or minimisation of relevant risks by way of mitigation measures to be implemented (which were referred to by the parties as baseline measures). As the respondents pointed out, that this was the effect of the Approval Decision is plain from Conditions 68 to 81 set out in Annexure A of the Approval Decision.

159    As there was no prayer for relief seeking declarations, none should be made. What I have said above is in my view obvious from the face of the Approval Decision and the Conditions.

160    Accordingly, the Baseline Measures Ground fails.

6.    THE UNCERTAINTY GROUNDS

161    The applicant’s case in relation to the Uncertainty Grounds raised two issues: the Impact Trigger Threshold Issue and the Further Ministerial Approval Issues. Both of these Issues focussed upon the Conditions contained in the Approval Decision.

6.1    The Applicant’s contentions

6.1.1    Impact Trigger Threshold Issue

162    The Impact Trigger Threshold Issue relates to the relevant bird and bat fatality thresholds that, in the operation of the Wind Farm, are intended to operate as triggers for the stoppages of turbines.

163    In advancing its proposal to the Minister, the Proponent acknowledged that the operation of WTGs could give rise to a risk of bird and bat fatalities. It proposed measures in mitigation to seek to avoid or minimise this risk. The relevant measures were outlined in the Preliminary BBMP which was attached to the Referral Form. The measures included mortality thresholds for specified bird and bat species which would trigger the stoppage of turbines. Specifically, the following thresholds were proposed:

164    After the Referral Form had been submitted to the Minister, the Proponent prepared further revised drafts of the BBMP that were submitted to the Department.

165    Although the Approval Decision does not approve a specific version of the BBMP (as elaborated upon further below), it does address “Turbine Impacts” and “impact trigger thresholds”. In this regard, Conditions 44 to 52 of the Approval Decision provide as follows:

Turbine Impacts

44.     To avoid harm to protected matters, the approval holder must ensure no wind turbine generators are located within 4.7 kilometres of the Wet Tropics World Heritage boundary.

45.     If it is detected or estimated that either impact trigger threshold 1 or impact trigger threshold 2 for any EPBC Act listed bird and bat species has been, or will be, met or exceeded in any given financial year, the Approval Holder must notify the department within 5 business days from when it became aware that either impact trigger threshold 1 or impact trigger threshold 2 for any EPBC Act listed bird and bat species has been, or will be, met or exceeded.

46.     The Approval Holder must cease rotation of the wind turbine generator blades in the Final Development Footprint that were, or are estimated to be, responsible for collisions with protected matters within 5 business days of it becoming aware that impact trigger threshold 1 has been, or will be, met or exceeded during any given financial year.

47.     To mitigate harm to protected matters, the Approval Holder must cease rotation of all wind turbine generator blades in the Final Development Footprint within 5 business days of it becoming aware that impact trigger threshold 2 has been, or will be, met or exceeded during any given financial year.

48.     To mitigate harm to protected matters, if impact trigger threshold 1 or impact trigger threshold 2 has been, or will be, met or exceeded in a given financial year, the Approval Holder must submit to the department, for the Minister’s approval, an Impact Trigger Avoidance Review.

49.     The Approval Holder must not recommence rotation of wind turbine generator blades in the Final Development Footprint that ceased operation under conditions 46 or 47 unless the Minister has approved in writing the Impact Trigger Avoidance Review required under condition 48.

50.     The Impact Trigger Avoidance Review required by condition 49 must:

a)     be undertaken by a suitably qualified ecologist,

b)     include consideration of sightings of the relevant EPBC Act listed bird and bat species in the Development Corridor and surrounding area within 60km of the Development Corridor,

c)     include updates to the impact assessment of the project operation on the EPBC Act listed bird and bat species and propose proactive measures to avoid and mitigate the risk of further Impact trigger threshold 1 or Impact trigger threshold 2 exceedance events for the relevant EPBC Act listed bird and bat species,

d)     include updates to the risk assessment for the relevant EPBC Act listed bird and bat species, and

e)     be submitted to the Minister within 90 business days of the Approval holder detecting or estimating the Impact trigger threshold 1 or Impact trigger threshold 2 has been, or will be, met or exceeded.

51.     If the Minister is not satisfied with the Impact Trigger Avoidance Review required by condition 48, including the efficacy of the proposed measures to avoid and mitigate the risk of further Impact trigger threshold 1 or Impact trigger threshold 2 exceedance events for the relevant EPBC Act listed bird and bat species, the Minister may require the Approval Holder to implement monitoring and management measures consistent with best practice and relevant scientific evidence as prescribed by the Minister.

52.     The Approval Holder must implement any measures required by the Minister in accordance with condition 51 until the completion of decommissioning.

(Emphasis in original.)

166    The impact trigger thresholds referred to in the conditions above are defined in the Part C of Annexure A of the Approval Decision as follows:

Impact trigger threshold 1 means the number of individual mortalities of EPBC Act listed bird and bat species that are equal to 0.1 percent of the total population of that EPBC Act listed bird and bat species total population, as estimated in commonwealth statutory documents or peer reviewed research papers, that are a result of barotrauma or turbine collision. This impact trigger threshold is applicable to all EPBC Act listed bird and bat species except for the Red Goshawk.

Impact trigger threshold 2 means…the number of individual mortalities of EPBC Act listed bird and bat species that are equal to 1 percent of the total population of that EPBC Act listed bird and bat species, as estimated in commonwealth statutory documents or peer-reviewed research papers, that are a result of barotrauma or turbine collision. For the Red Goshawk, one mortality as a result of barotrauma or turbine collision automatically triggers Impact trigger threshold 2.

(Emphasis in original.)

167    The applicant submitted that the “impact trigger thresholds” were uncertain for a number of reasons.

168    First, it was submitted that there was uncertainty as to whether the relevant thresholds were fixed by the Approval Decision by reason of the defined terms “Impact trigger threshold 1” and “Impact trigger threshold 2”. Second, it was submitted that the thresholds (as defined) were uncertain because they were to be determined by reference to an estimate based on “commonwealth statutory documents” or “peer-reviewed research papers” such that there was an inherent ambiguity arising by reason of the “competing possibilities” as to the thresholds that would apply depending on the documents relied upon. It was submitted that this gave rise to further ambiguities as to which source information is to prevail: the most recent or the most comprehensive. Third, it was submitted that the reference to the threshold being set by reference to an “estimate” of “the population” gave rise to uncertainty as the relevant thresholds would be based on estimates of a population which may be expressed as a range or by reference to some other metric that did not produce a specific quantifiable threshold.

169    In an Annexure to the applicant’s Outline of Factual and Legal Propositions filed on 20 December 2024, the applicant sought to identify the population estimates for each species based on its review of “commonwealth statutory documents or peer-reviewed researched papers”. It claimed that fixed and reasonably contemporaneous estimates only existed for the Eastern Osprey and Latham’s Snipe. The applicant further submitted that all of these matters were not theoretical but real in the sense that for eight species there were presently no estimates as to their population size, and some species had estimates only for adult populations. It was submitted that, in light of these matters, the relevant triggers had no certain or concrete meaning.

6.1.2    Further Ministerial Approval Issues

170    As to the Further Ministerial Approval Issues, the applicant submitted that there were two broad areas of uncertainty which were tantamount to “secondary consents”.

171    The first was that in relation to Conditions 46 to 50 (as set out above at [165]), there was no certainty as to the basis upon which the Minister would approve the restarting of turbines following an “impact threshold” being triggered. The applicant submitted that there were no clear criteria for the making of such a decision in the exercise of Executive power by the Minister in determining when and upon what basis the wind turbines could recommence operating such that these conditions were uncertain.

172    The applicant’s second contention related to uncertainty arising from the requirement in Conditions 68 to 78 for the Proponent to submit a BBMP for approval by the Minister. These conditions provide as follows:

Bird and Bat Management Plan (BBMP)

68.     The Approval Holder must, prior to commissioning, submit to the department for the approval of the Minister, a Bird and Bat Management Plan (BBMP). The Approval Holder must not commence commissioning until the BBMP has been approved by the Minister in writing. The Approval Holder must implement the approved BBMP for the remaining duration of the approval.

69.     The BBMP must be prepared by a suitably qualified bird and bat ecologist.

70.     The Approval Holder must undertake the pre-commissioning surveys to inform the results required under condition 72 prior to commissioning.

71.     The BBMP must demonstrate how implementation of the BBMP will avoid and mitigate harm to EPBC Act listed bird and bat species during construction and operation.

Pre-commissioning surveys and site characterisation

72.     The BBMP must include the results of 24 months of surveys undertaken prior to the commissioning to characterise EPBC Act listed bird and bat species movement through, presence in and use of the Development Corridor.

73.     The surveys required under condition 72 must be taken over relevant seasons and be of an appropriate duration and spatial coverage to adequately evaluate site utilisation by EPBC Act listed bird and bat species.

74.     Preliminary site characterisation must be undertaken to identify all drivers of EPBC Act listed bird and bat species presence in, and utilisation of, the Development Corridor. This must consider and describe:

a)    site characteristics including key habitat features, topography, prevailing wind (including likely locations of updrafts) and weather patterns, wetlands (including in the broader region of the Development Corridor) and distance to potential nesting, roosting and foraging areas, and

b)     species characteristics including flight and demographic factors, behaviour in the Development Corridor, flight paths (including migratory flight paths), flight heights and characteristics (e.g. soaring or flocking) and population size.

75.     The BBMP must not be inconsistent with relevant departmental policies and guidelines, including:

a)     the information about relevant species in SPRAT and other sources endorsed by the department, and

b)     relevant approved conservation advice and recovery plans.

Site-wide risk assessment

76.     The BBMP must identify each EPBC Act listed bird and bat species at risk of injury and/or mortality associated with the Action, based on a single Development Corridor-wide assessment. This impact risk assessment must include consideration of, but is not limited to:

a)     the site utilisation surveys results required under condition 72 and the preliminary site characterisation required under condition 74,

b)     potential changes in Development Corridor utilisation by the EPBC Act listed bird and bat species during construction and operation,

c)     the distribution of potential and known habitat for the EPBC Act listed bird and bat species in the Development Corridor and the surrounding region, and d) the characteristics of the EPBC Act listed bird and bat species such as feeding and migratory behaviour and expected frequency, flight behaviour and likely periods of presence in the Development Corridor.

Initial post-commissioning monitoring

77.     The BBMP must specify and commit to undertake site utilisation surveys for each EPBC Act listed bird and bat species considered likely to enter the Development Corridor following commissioning. The site utilisation surveys must:

a)     commence within 3 months after commissioning,

b)     be undertaken over a period of at least 24 months,

c)     be undertaken in each of at least 2 wet seasons and 2 dry seasons in succession,

d)     be designed to support a Before-After, Control-Impact (BACI) monitoring framework,

e)     be conducted by a suitably qualified field ecologist,

f)     implement a methodology and timings which are consistent with the methodology of the baseline pre-commencement Development Corridor site utilisation surveys,

g)     ensure observed species behaviour changes, including any avoidance of turbines and altered Development Corridor utilisation, is recorded, and

h)     be designed to inform the adaptive management framework and enable timely implementation of corrective actions.

Adaptive management framework

78.     To avoid, mitigate and manage harm to relevant EPBC Act listed bird and bat species, the BBMP must include an adaptive management framework. The adaptive management framework must, at a minimum:

a)     detail carcass detection surveys, including timing, frequency and search areas. Surveys must take account of the results of searcher efficiency trials, new techniques and technologies to maximise carcass detection resulting from turbine collision and barotrauma during commissioning and operation,

b)     specify the nature, timing and frequency of ongoing monitoring programs to detect injury and mortality over the duration of the Action for each EPBC Act listed bird and bat species identified as being at risk of injury and/or mortality associated with the Action,

c)     specify additional survey effort in for each EPBC Act listed bird and bat species identified as at risk under condition 76 at a temporal and spatial resolution justified to address the level of risk to the species.

d)     detail avoidance and mitigation measures to be implemented,

e)     specify impact trigger threshold 1 and impact trigger threshold 2 for each EPBC Act listed bird and bat species identified as at risk under condition 76 and the management measures that will be implemented if these thresholds are met or exceeded,

f)     propose alternative mitigation and corrective measures supported by scientific literature if monitoring activities detect any of the specified triggers, and

g)     specify processes for periodic re-evaluation of site utilisation surveys, monitoring programs, risk assessments and mitigation and corrective measures.

…

173    The applicant submitted that uncertainty arose from the fact that the Approval Decision and its Conditions did not provide any guidance or criteria by which the Minister was to determine whether to approve a BBMP as required by Condition 68 such that these conditions were uncertain. It was submitted that, as a result, there was no clarity and certainty as to the precise “avoidance and mitigation measures” that were required to be implemented by the Proponent.

6.2    Consideration of Uncertainty Grounds

174    The Uncertainty Grounds rely upon ss 5(1)(e) and s 5(2)(h) of the ADJR Act, as well as the common law conception of uncertainty as a ground of judicial review. The applicant did not seek to differentiate how the ADJR Act of review would be different to the common law conception and the matter was not addressed: see eg Randwick City Council v Minister for the Environment (1998) 54 ALD 682 at 730 (Finn J) cited in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403 at [37] (Besanko J) (Buzzacott); cf Television Corporation Ltd v Commonwealth; Amalgamated Television Services Pty Ltd v Postmaster-General (Cth) [1963] HCA 30; 109 CLR 59 at 70–71 (Kitto J).

175    Section 5(1)(e) provides that a person aggrieved by a relevant decision may apply to the Court for a review on the ground that “the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made”. For this purpose, s 5(2)(h) provides that an improper exercise of power includes “an exercise of a power in such a way that the result of the exercise of the power is uncertain”.

176    It will be apparent from the text of s 5(2)(h) of the ADJR Act that the “uncertainty” ground of review relates to the exercise of a power and, specifically, the result of that exercise of power. As such, the reference to uncertainty in s 5(2)(h) is a reference “to uncertainty as to what the result is, or in the case of s 6(2)(h) what the result will be” (emphasis in original): see Patrick v Australian Information Commissioner (No 2) [2023] FCA 530 at [63] (Wheelahan J) citing Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 at [288] (Bond J). Ultimately, the exercise of the power in this way is an improper exercise of power: see Patrick at [62] and the authorities there cited.

177    In so far as the common law conception of uncertainty is concerned, as Gordon J stated in Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; 274 CLR 325 at 332 [19], “There is no general principle that uncertainty in an instrument made pursuant to power given by an Act spells legal invalidity”. However, as her Honour there further reasoned, the “fact that there is no void-for-vagueness doctrine in Australia is not inconsistent with the proposition that there may be a failure to exercise power pursuant to a statutory provision if, properly construed, the statutory provision requires that the exercise of the power possess certainty in some respect in order for there to be a valid exercise of power.” In Television Corporation, the High Court considered whether certain conditions could lawfully be imposed on commercial television station licences. Kitto J stated at 70:

In this context it seems to me a necessary conclusion that what the Act means by a ‘condition’ is a specification of acts to be done or abstained from by the licensee company — a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister’s power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain — that is to say … conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred. Such certainty includes both certainty of expression and certainty in operation.

178    Irrespective of whether the ground of review advanced by the applicant is based on the common law or the ADJR Act, the extent or degree of certainty required for a lawful exercise of power “depends very much on the statutory context”: Buzzacott at [43]; Patrick at [19]; Sunland Group (supra). Where a decision is made that contains conditions, they must convey to the recipient “with reasonable clarity, what [they are] required to do. Put another way: the conditions must, on a fair reading, make it reasonably clear to [the recipient] what action is required of it”: Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCA 330; 165 LGERA 203 at [79] (Tracey J) (citations omitted). However, it is well to bear in mind that “Courts try to avoid uncertainty by adopting a construction which gives statutory instruments and decisions practical effect”: Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; 160 LGERA 20 at [66] (Preston J), referred to in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; 215 FCR 301 (Buzzacott FFC) at [176] (Gilmour, Foster and Barker JJ).

179    The applicant’s arguments as to uncertainty require close attention to the statutory context. In Buzzacott FFC, the Full Court considered the application of s 5(2)(h) of the ADJR Act to a decision made under the EPBC Act at [130] ff. That case involved an approval granted under s 133 of the EPBC Act relating to the operation of a uranium mine in South Australia together with a rail line and infrastructure for electricity, water and gas, which was subject to a large number of conditions. One of the arguments advanced by an opponent to the approval was that the content and effect of the conditions depended on later determinations to be made by the Minister such that the approval decision was uncertain and amounted to no more than a provisional or preliminary approval rather than an approval as envisaged in s 133.

180    Having reviewed relevant authorities, the Full Court in Buzzacott FFC observed at [179] that:

…under the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. [The authorities] also confirm that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency.

181    Their Honours further stated at [187]–[188] that the resolution of this question requires attention to be given to the power being exercised:

What is immediately obvious about s 134, is that care has been taken not to empower the Minister to impose conditions generally…but to structure the circumstances in which the Minister may attach a condition to an approval under s 133 and to identify the nature or types of conditions that may be attached. The effect of s 134(1) is two-fold. First, no condition, including those that may be imposed under subs (3), can be attached unless the Minister is satisfied that the condition is “necessary or convenient” for protecting a matter or repairing or mitigating damage to a matter protected as described by subs (1)(a) or (b). Secondly, subs (1) is also a source of the power of the Minister to attach a condition where the Minister is satisfied that that condition is necessary or convenient in terms of subs (1)(a) or (b). This is clear from the statement in subs (3), that subs (3) does not limit the kinds of conditions that may be attached to an approval. This non-limitation provision necessarily means that by subs (1) the Minister is authorised to attach a condition which meets the description provided in subs (1)(a) or (b). In a case such as the present, therefore, an impugned condition may possibly be authorised by s 134(1)(a) or (b) alone, or in combination with one of the subparagraphs of subs (3).

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

182    That the scheme of the EPBC Act envisages the need for retention of flexibility was also addressed in Gelorup FFC. There, Jackson and Kennett JJ, having considered Buzzacott FFC and Lawyers for Forests, stated at [52]–[53]:

Arguments of the kind raised here point to a tension between what appears (from the text of ss 130 and 133) to be a requirement for a yes or no answer to be given to a proposed action and the scope and complexity of some of the actions requiring approval under the EPBC Act. Attempting to break a large and long term project into smaller components, and seek approval under the EPBC Act for each component as it arises, has obvious problems. The imposition of conditions requiring monitoring, review and the submission of plans for approval — in effect providing for ongoing supervision of the proposed action as it unfolds — is a mechanism by which proponents and decision-makers seek to manage that tension.

The proposed action in Buzzacott is an example. It was a large open cut mining operation expected to operate for 40 years. One of the conditions imposed on the approval (discussed at [227]–[230]) required development and implementation of a “mine closure plan”. The particular steps that would be required at the end of the mine’s life to avoid or mitigate ongoing environmental effects were impossible to predict in an assessment and approval process undertaken before mining was even begun. If approval required matters of that kind to be ascertained beforehand and set out in objective, inflexible conditions, approval of a project of that scale would likely be impossible. That is clearly not the intention of the EPBC Act. Counsel for the appellant accepted, therefore, that Pt 9 must contain some scope for a proposed action to be approved subject to conditions that allow for decisions to be made on particular issues at later times. Section 134(3)(d) to (f) envisage conditions of that kind, in that they allow the imposition of requirements for auditing, monitoring and the development of plans (things which would be of limited relevance without additional provisions for the Minister to make decisions in response to the information provided).

183    As these authorities demonstrate, the question of whether the result of the relevant exercise of power is uncertain is to be determined by a process of statutory construction. It is therefore necessary to consider each of the applicant’s arguments on the Uncertainty Grounds by reference to these principles.

6.2.1    Consideration of Impact Trigger Threshold Issue

184    In assessing whether the “impact trigger thresholds” involve an exercise of power that results in uncertainty, it is necessary not only to consider the relevant power in question but also to properly construe the Conditions relating to these thresholds.

185    Section 134(1) empowers the Minister to attach a condition to the approval of action if the Minister is satisfied that the condition is “necessary or convenient” for, amongst other things, “repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect…”. The Conditions relating to the “impact trigger thresholds” were such conditions, which the Minister’s delegate was satisfied should be imposed. For example, in relation to the Red Goshawk, the Delegate’s Reasons disclose (at [215]) that the delegate considered the measures proposed in the draft BBMP were appropriate by way of risk management and that conditions should be imposed to that effect:

215.     I considered that the proponent’s proposed adaptive management approach in the draft BBMP would adequately manage the impacts of WTG collision, and should the significant impact threshold be reached, appropriate measures to compensate would be implemented. To ensure such, I agreed to impose specific conditions relating to the requirements of the final BBMP, as well as conditions to limit turbine impacts.

186    The delegate was further satisfied that such conditions were necessary and convenient for the reasons set out at [222]–[223]:

222.    I agreed that these conditions were necessary, and appropriately reflected and applied the precautionary principle given the threat or serious damage to the species by way of reduction of the population, and the lack of scientific certainty as to the presence and extent of the species in the project area and the use of the habitat by the species.

223.     The department also recommended, and I accepted, including conditions that require the proponent to cease the rotation of the WTG blades if 1 or more red goshawk individuals are estimated to be killed by collision with the WTGs in a given year. I noted that the trigger for the red goshawk had been clarified to be just 1 individual due to the small population number, vulnerability of the species and feedback from DESI. The conditions also required the proponent to promptly report any exceedance to the department and undertake an ‘Impact Trigger Avoidance Review’…

187    In relation to the other species, the Delegate’s Reasons disclose a similar process of reasoning. For example, in relation to the Bare-rumped Sheathtail, the delegate reasoned that:

248.    For similar reasons that I gave at paragraphs [223]–[226] above relating to the red goshawk, I considered conditions relating to managing impacts from WTG collision, including the preparation of a BBMP which I considered would adequately address such impacts and offsets, were necessary for the protection of the bare-rumped sheathtail bat. I also considered that the impact trigger thresholds which strengthened the additional measures were appropriate.

249.     In relation to the bare-rumped sheathtail bat the department specifically recommended, and I accepted, a condition as follows:

a)     To avoid impacts to Bare-rumped Sheathtail breeding, the Approval Holder must not clear bare-rumped sheathtail bat habitat in any period commencing on 1 December and ending on 31 January in the same financial year.

250.     The department considered and I agreed that this condition is necessary and convenient to protect bare-rumped sheathtail bats during breeding season when the species is most vulnerable to disturbance.

188    Whilst the delegate was satisfied that impact trigger thresholds should be imposed, the delegate was conscious that a final BBMP would need to be prepared and approved prior to commissioning of the Wind Farm. This is reflected in the Conditions. Read as a whole, the Conditions require the Proponent to, prior to commissioning, submit to the Department for the approval of the Minister, a BBMP. This is reinforced by the fact that the Proponent is not permitted to commence commissioning until the BBMP has been approved by the Minister in writing: Condition 68 (see [172]). Further, Condition 69 requires the BBMP to be prepared by “a suitably qualified bird and bat ecologist”. The BBMP is required to reflect and include the results of 24 months of surveys undertaken prior to commissioning including identification of the listed bird and bat species movement through, presence in and use of the “Development Corridor”: Conditions 70 to 72. The BBMP is also required to identify by way of a site-wide risk assessment each EPBC Act listed bird and bat species at risk of injury and mortality associated with the approved action: Condition 76. Condition 78 requires that the BBMP must include an “adaptive management framework” which must, at a minimum, specify “impact threshold trigger 1” and “impact threshold trigger 2” for each of the “EPBC Act listed bird and bat species” including the management measures that will be implemented if those thresholds are met or exceeded.

189    In other words, the Conditions require there to be impact trigger thresholds, and with one exception relating to the Red Goshawk, they provide for the parameters within which the specific thresholds are to be set for each species and stop short of fixing these in a definitive way at present. Consistent with the definitions in Part C of Annexure A of the Approval Decision, the parameters are defined by reference to a prescribed percentage of the total population for the relevant species. As stated there, “Impact trigger threshold 1” will be exceeded where individual mortalities for a relevant species are equal to 0.1 per cent of that species’ total population and “Impact trigger threshold 2” will be exceeded where individual mortalities are equal to 1 per cent. What is left for determination is the population of each species. These are to be “estimated” by reference to Commonwealth statutory documents or peer-reviewed research papers but which (as discussed below) will come to be determined by a subject matter expert following extensive surveys. The position is different in respect of the species, Red Goshawk, in respect of which the relevant threshold is not a percentage but a "fixed number" (that is, one individual mortality) as the impact trigger threshold.

190    The determination of the estimated population for each species is not at large, and this too is to be determined within parameters prescribed by the Conditions. The Conditions require the Proponent to submit a BBMP for approval that has been prepared by a bird and bat ecologist (Condition 69) that also requires the BBMP to include an adaptive management framework which specifies the relevant threshold triggers (Condition 78(e)) and to do so by reference to a comprehensive period of survey and review (Condition 72).

191    Having regard to these matters, I do not accept that the exercise of the Minister’s power (by the delegate) in imposing the Conditions results in uncertainty. The applicant’s contention that there is an inherent ambiguity arising from the competing possibilities of the population estimates being derived from Commonwealth statutory documents or peer-reviewed research papers pays insufficient regard to the fact that this determination is to be undertaken by a qualified bat and bird ecologist and on the basis of a period of 24 months of pre-commissioning surveys to, amongst, other things identify the movement and presence of the listed species through the “Development Corridor”. That expert assessment is intended to result in the determination of a population estimate prepared by a qualified expert and approved by the Minister. The function of specifying the relevant estimate is left in the hands of a specialist ecologist who is well-placed to undertake the relevant specification, having regard to the criteria addressed in the Conditions. There is no indeterminacy that arises from the range of information from which the expert is to make that determination.

192    Nor is there any indeterminacy that arises by reason of the impact trigger thresholds being set by reference to “estimates” of the relevant populations. The Conditions make clear that the outcome of the process to be undertaken by the expert assessment includes the identification of an estimate of the relevant populations. The fact that the relevant determination is to be an estimate does not make the operation of the threshold uncertain. The impact trigger thresholds expressed as a percentage of an estimated population are capable of certain operation. The applicant’s contention that this process leaves it open for “population ranges” misses the point that what is required is a determination of an estimate to which a percentage is to be applied. This supplies, and gives a clear indication, that the outcome of the process is to be a percentage of that estimate.

193    The applicant’s reliance upon its own determination of the relevant estimates (in the attachment to its Outline of Factual and Legal Proposition) is also beside the point as the determination of the estimate is to be ascertained by the qualified ecologist following surveys and by reference to Commonwealth and statutory documents and peer-reviewed documents. The BBMP that is to be approved by the Minister must have estimates. It is not to the point that the applicant has been unable to ascertain estimates based on its review of materials.

194    It follows that the Conditions thereby identify how the relevant determination is to be undertaken, by whom it is to be undertaken and the object of the determination. I am satisfied that the criteria are clear and sufficient to enable thresholds to be determined and applied that are certain in operation.

6.2.2    Consideration of Further Ministerial Approval Issues

195    In substance, the applicant’s contention was that there is an “absence of clear criteria” as to the basis upon which the Minister may approve the recommencement of the operation of turbines following an impact threshold being triggered. I do not agree.

196    The applicant’s submissions relied upon Feutrill J's reasons in Gelorup FFC (at 268 [122]) to assert that “[t]o be certain, a secondary consent must specify the criteria which are to guide the Minister's future decision-making”. This submission assumed that the Conditions gave rise to a process of “secondary consent” to the approval of the proposed action. By using the language of “secondary consent”, the applicant intended to convey that the Minister had deferred to a later stage essential aspects of the decision to approve the Proposed Action. As Feutrill J reasoned in Gelorup FFC (at 266 [114]) a decision of this kind may involve an unauthorised exercise of power:

Broadly, it can be accepted that if the Minister were to defer all or part of the evaluative task that must be performed to make a decision to approve (with or without conditions attached) or not to approve an action that would not be an authorised exercise of the decision-making power conferred by ss 130, 133 and 134 of the EPBC Act. Difficult questions about whether there has been such a deferral can arise where, as here, a condition is attached to an approval that provides for the Minister to be ‘satisfied’ of something after the approval of an action is granted. Conditions of that nature necessarily require the Minister to evaluate the subject matter of the condition and form a state of mind (‘be satisfied’) that the condition has been met.

197    To a similar effect, Jackson and Kennett JJ stated in Gelorup FFC (at 253-4 [57]–[58]) that:

…the effect of a condition may be that the scope or nature of the proposed action remains to be fixed at a later time, with the final form of the action to be approved by a decision-making process outside Pt 9. To take an extreme example, a road authority might propose to build a freeway through an area that includes threatened ecological communities but provide no specificity about the proposed route. In practice, that would no doubt be dealt with by the proponent being urged to refine the proposal before any decision was made under s 75. In our view it could not properly be dealt with by granting approval under s 133, with a condition requiring the detailed route to be submitted later for approval by the Minister. A decision of that kind would provide no clarity as to what action was able to be undertaken without breaching s 18 of the EPBC Act.

Although members of the Court in Triabunna Investments Pty Ltd v Minister for Environment and Energy (2019) 270 FCR 267; [2019] FCAFC 60 noted that the scheme of the EPBC Act permits flexibility, including modification of a proposed action between referral and approval (at [43] (Flick J)) and some scope for judgment in how a “proposed action” is identified at the s 75 stage (at [191]–[193] (Mortimer J)), the proposed action must nevertheless have some degree of stability, as it is the subject of a sequence of decisions and assessments that the EPBC Act envisages as applying to the same subject-matter. At least when it is approved, the “action” needs to be identifiable because its boundaries are the boundaries of an exemption from one or more statutory prohibitions in Pt 3.

198    The decision of the Full Court in Buzzacott FFC provides an example of a condition (“Condition 71”) that was found to have left the proposed action unknowable, but it was also found that Condition was severable from other conditions (which had been unsuccessfully challenged on the ground of uncertainty). Conditions 70 and 71 at issue in that case provided as follows:

70.    The rail line, water pipeline and electricity transmission lines must be constructed on the alignments shown in Figures N1.4 (a) — (f) of the Olympic Dam expansion, Draft environmental impact statement 2009, Appendix N — Terrestrial ecology, unless otherwise approved by the Minister under condition 71.

71.    If the Approval Holder proposes to construct the rail line, water pipeline or electricity transmission lines on a different alignment to that specified above, or if the Approval Holder proposes to construct the gas pipeline, the Approval Holder must prepare an infrastructure plan detailing the proposed alignment and submit the plan to the Minister for approval…

199    As will be apparent from the above, by Condition 70 the Minister had approved of the construction of particular infrastructure lines on particular alignments but Condition 71 envisaged that significant aspects of the proposed action might take a different form and affect different areas of land from what had been assessed. The vice with Condition 71 was that it permitted the Minister to alter critical aspects of the action that had been approved. The Full Court reasoned that the effect of Condition 71 was to create in the Minister “an infrastructure approval power … to approve the identified infrastructure but on a new alignment without any reference to the particular requirements and mechanisms specified in the EPBC Act that would otherwise apply in relation to such a fresh infrastructure proposal”: at 351 [251]. The Full Court further reasoned that Condition 71 was not authorised under s 134 because it was not for the “protection of the environment or the management of environmental impacts identified by the proposed activity, but provides for the assessment and approval of some other potentially fresh gas pipeline alignment proposal: at 351 [252] (Emphasis in original).

200    A condition such as Condition 71 considered in Buzzacott FFC is of a different character to the conditions considered in Gelorup FFC. There, the relevant conditions in issue required the proponent to submit management plans, including as to “offset” strategies, and it was contended that these were uncertain and invalid because they impermissibly deferred the substantive evaluative task the Minister was required to undertake and lacked specificity or detail as to the criteria by which the Minister would approve those plans and strategies: at [32]. Relevantly, as set out in the reasons of Jackson and Kennett JJ, the “offset” conditions were to the following effect (at 249 [42]):

(a)    Condition 14 requires the approval holder to submit an offset strategy to the Department within six months of commencing the action. It provides that within nine months of commencement of the action the offset strategy must meet the requirements of the Offsets Policy to the satisfaction of the Minister. It further provides that the approval holder must implement the offset strategy approved by the Minister.

(b)    Condition 15 sets out matters that must be identified and described in the offset strategy.

(c)    Condition 16 provides that, if the offset strategy has not been submitted for approval within the time allowed by condition 14, “all clearing and/or construction must cease immediately”. In that event, work may restart only after the strategy is submitted or with the Minister’s written agreement.

(d)    Condition 17 provides that, if (more than six months after work has commenced) the Minister refuses to approve the offset strategy because they are not satisfied that it meets the requirements of the Offsets Policy, clearing and construction must cease immediately. In that event, work may restart only once the offset strategy is approved or otherwise with the Minister’s written agreement.

201    Jackson and Kennett JJ reasoned that these conditions did not “create any indeterminacy in the scope of the “action” that is the subject of the approval decision” and did not envisage “any alteration or revision of that action”: at 254 [61]. As their Honours further reasoned, these conditions instead:

…deal with compensatory measures that, the delegate has determined, need to occur in order to make the environmental impacts of the action acceptable. There is therefore no indeterminacy as to the scope of what has been approved, and no deferral of assessment of the proposed action.

202    Feutrill J arrived at the same conclusion at 268 [120]–[121].

203    As noted above, the applicant placed considerable reliance upon Feutrill J’s reasons at 268 [122], where his Honour stated:

Although unsuccessful on the facts of Buzzacott, the Full Court appears to have accepted that a condition attached to an approval that lacks certainty may result in an unauthorised approval or condition of an approval. A condition may lack certainty in the relevant sense where the “assessment criteria” by which the Minister is to be “satisfied” are unclear, ambiguous or non-specific. The imposition of a condition calling for the Minister to be “satisfied” of something may also reveal that the Minister has failed to consider a matter required to be considered and evaluated under s 136. I would add that a condition that requires the Minister (or a delegate) to be satisfied of something after approval may be so denuded of content that it is not a “condition” attached to the approval and, in substance, defers a decision on the terms of the condition to be attached until after the approval. That would also involve an impermissible deferral of the evaluative task or imposition of a condition that is not authorised.

204    However, his Honour proceeded to state at 268–9 [123]:

Nonetheless, as was made clear in Buzzacott, deferral of a decision as to the terms or content and, in effect, the condition to be attached to an approval is to be distinguished from deferral of a decision as to the manner in which a condition attached to an approval will be satisfied. Given the nature of an approval of action under the EPBC Act it is necessary that there be power to attach conditions that confer on the Minister flexibility as to the manner in which those conditions will be fulfilled.

205    These decisions and the reasoning upon which they are based do not assist the applicants.

206    First, as the reasons in Buzzacott FFC and Gelorup FFC demonstrate, there is a distinction between conditions that have the effect of deferring for later determination the substance or critical aspects of the proposed action, and those which are involved in the implementation of the approved action.

207    Second, as the reasons in Buzzacott FFC further demonstrate, a “condition will not necessarily be considered invalid because [it] retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity”. However, such a condition may lack certainty where the assessment criteria by which the Minister is to be satisfied are unclear, ambiguous or non-specific.

208    In the present case, none of the Conditions relating to the recommencement of turbines or the approval of the BBMP are of a character that defers the determination of the Proposed Action or its scope and nature. The Proposed Action that was referred for approval related to the construction, operation and decommissioning of up to 69 WTGs as part of the Wind Farm. That Proposed Action has been approved and is not subject to any further approval or determination to be made by the Minister.

209    The Conditions relating to the recommencement of the turbines after an impact trigger threshold has been exceeded do not defer for subsequent determination the nature and scope of the action that was proposed and now approved. Rather, they relate to the effects of the mitigatory measures that have been approved in a broadly thematic way as a condition of the approval of the Proposed Action and which require implementation in specific ways. The effect of those measures is that one or more turbines are to cease operating if the relevant impact thresholds are triggered and one or more of those turbines were, or are estimated to have been, responsible for relevant collisions: see Condition 46 at [165]. As in Gelorup FFC, these are the types of conditions that, like the offset measures, relate to the “compensatory” or mitigatory measures that, the delegate has determined, need to occur in order to make the environmental impacts of the action acceptable. This does not involve a deferral of assessment of the Proposed Action.

210    Nor are the criteria in relation to circumstances in which the Minister may authorise the recommencement of the turbines unclear, ambiguous or non-specific. Condition 48 requires the Proponent to submit an “Impact Trigger Avoidance Review”. Condition 49 prohibits the Proponent from recommencing the turbine unless the Minister has approved in writing the Impact Trigger Avoidance Review. Condition 50 specifies the content of the Impact Trigger Assessment Review, which is to be prepared by a qualified ecologist, and must address various matters including the proposed proactive measures to avoid and mitigate the risk of further impact trigger threshold exceedance events. Condition 51 provides that if the Minister is not satisfied with the Impact Trigger Avoidance Review, including as to the efficacy of mitigatory measures, the Minister may require the Proponent to implement other measures consistent with best practice and relevant scientific evidence as prescribed by the Minister. These Conditions disclose that the criteria upon which the turbines may be recommenced is subject to the satisfaction of the Minister as to the contents of the Impact Trigger Avoidance Review. As a result, the Conditions are clear as to who is to make the decision, the information upon which that decision is to be based and the matters which the Minister is to have regard in exercising an evaluative judgment as to whether the affected turbines should recommence in operation. I do not accept that there is any uncertainty or indeterminacy in this regard.

211    As to the Conditions relating to approval of the BBMP, again, none of these defer to subsequent determination the approval of the Proposed Action. Rather, they impose conditions upon the commencement of the commission work to be undertaken in relation to the Proposed Action that require the Proponent to submit a BBMP for the approval of the Minister and prohibit commissioning until the BBMP has been approved by the Minister in writing: Condition 68. There are a series of Conditions that inform the preparation and content of the BBMP including that it must be prepared by a qualified ecologist, must include the results of extensive surveys and risk assessments undertaken prior to commissioning, and must include an adaptive management framework that, amongst other things, specifies the impact trigger thresholds. As with the other Conditions discussed above in relation to the recommencement of the turbines, these Conditions also relate to the “compensatory” or mitigatory measures that the delegate has determined need to occur in order to make the environmental impacts of the Proposed Action acceptable. There is no deferral of assessment of the Proposed Action but flexibility being retained to ensure that the mitigatory measures are best suited and adapted to the purposes for which they are directed.

212    Nor are the relevant Conditions unclear, ambiguous or non-specific. The criteria and conditions upon which the Minister will approve the BBMP are spelled out in the Conditions. The Conditions specify what must be submitted for approval, the matters that the BBMP must address, by whom it must be prepared, and, in doing so, it thereby identifies the basis upon which the Minister will make a decision to approve the BBMP.

213    For these reasons, I am not satisfied that the Uncertainty Grounds are made out. The applicant’s case in relation to these Grounds must fail.

214    As a result of the conclusions I have reached, it is unnecessary to address the further argument raised by Senior Counsel for the Minister during oral argument as to the prospect that, by its conduct, the Proponent had made an election under s 132B of the EPBC Act. Section 132B of the EPBC Act provides that at any time before an approval of the taking of the action is granted under s 133, the proponent may elect to submit an action management plan for approval by the Minister on the basis that such a plan will be approved after the Minister has approved the proposed action. The Minister submitted that the Proponent had made such an election by agreeing to the Conditions that it had received in draft form before the Approval Decision was made. It may well be the case that the Proponent had exercised such an election, but the argument was raised by the Minister for the first time during oral submissions as a further answer to the Uncertainty Grounds. It was not an argument raised by the Proponent and the Proponent did not contend that it had exercised an election under s 132B. The matter was not addressed by the applicant. In these circumstances, it is not necessary to decide this question given that I have separately concluded that there is no uncertainty in the Approval Decision.

7.    CONCLUSION

215    For the foregoing reasons, the amended originating application should be dismissed. The parties wished to be heard on the question of costs, and, accordingly, I will make orders for the exchange of submissions. I will then determine the question of costs on the papers unless one or more of the parties wishes to be heard.

Associate:

Dated:    22 May 2025