Friends of Hinchinbrook Society Inc v Minister for Environment & Ors [1997] FCA 55 (14 February 1997)

CATCHWORDS

STATUTORY CONSTRUCTION - whether consent under s 10 of the World Heritage Properties Conservation Act 1983 ("World Heritage Act 1975 ") has the effect of a consent under s 9 of the Act - relationship between consents under each section - whether Minister has power under the World Heritage Act to give conditional consents.

ADMINISTRATIVE LAW - unreasonableness - challenge to consents issued by the Minister under ss 9 and 10 of the World Heritage Act - whether the Minister's reliance on contractual provisions and administrative arrangements was so unreasonable that no reasonable person could have given the consents.

ADMINISTRATIVE LAW - whether Minister deferred decision until preparation of State management plans - whether Minister is entitled to take account of environmental regulation to be implemented under State law in granting consents under the World Heritage Act - significance of the Convention of the Protection of the World Cultural and Natural Heritage.

ADMINISTRATIVE LAW - relevant and irrelevant considerations - whether Minister took into account social and economic factors in giving consents under s 9 of the World Heritage Act - whether Minister bound to take into account the "precautionary principle".

STATUTORY CONSTRUCTION - relationship between s.30 of the Australian Heritage Commission Act (Cth) and ss 9 and 10 of the World Heritage Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(d),(e),(f), 2(a),(b),(g)

Australian Heritage Commission Act 1975 (Cth), ss 4, 22, 30

Convention for the Protection of the World Cultural and Natural Heritage, Articles 3, 4, 5

World Heritage Properties Conservation Act 1983 (Cth), ss 9, 10, 13, 21, 22

World Heritage Properties Conservation Regulations, 3F(2)

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65

Commonwealth The v The State of Tasmania [1983] HCA 21; (1983) 158 CLR 1

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375

Country Roads Board The v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126

Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139; (1990) 96 ALR 153

Foley v Padley [1984] HCA 50; (1983) 154 CLR 349

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515

Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270

Luu v Renevier (1989) 91 ALR 39

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1966) 185 CLR 259

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381

Parramatta City Council v Hale (1982) 47 LGRA 319

Richardson v The Forestry Commission [1988] HCA 10; (1988) 164 CLR 261

South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130

Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183

Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 55 FLR 180

Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68

FRIENDS OF HINCHINBROOK SOCIETY INC v MINISTER FOR ENVIRONMENT & ORS

NG 806 of 1996

Sackville J.

Sydney

14 February, 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 806 of 1996

GENERAL DIVISION )

BETWEEN:

FRIENDS OF HINCHINBROOK SOCIETY INC

Applicant

AND:

MINISTER FOR ENVIRONMENT

First Respondent

CARDWELL PROPERTIES PTY LTD

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

Sackville J.

Sydney

14 February, 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA )

DISTRICT REGISTRY ) No. 806 of 1996

GENERAL DIVISION )

BETWEEN:

FRIENDS OF HINCHINBROOK SOCIETY INC

Applicant

AND:

MINISTER FOR ENVIRONMENT

First Respondent

CARDWELL PROPERTIES PTY LTD

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

CORAM: Sackville J

PLACE: Sydney

DATE: 14 February, 1997

REASONS FOR JUDGMENT

I. INTRODUCTION

The Proceedings

In 1981, the Commonwealth nominated the Great Barrier Reef for inclusion in the World Heritage List, which is established and maintained pursuant to the Convention for the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation on 16 November 1972 (the "Convention"). The nomination was accepted by the World Heritage Committee, in accordance with the procedures laid down by Art. 11 of the Convention.

The Great Barrier Reef, as accepted for listing, extends approximately 2000 kilometres along the eastern coast of Australia, from just north of Fraser Island in the south to the latitude of Cape York in the north. It covers an area of 348,7000 square kilometres over Australia's continental shelf. The area listed includes Hinchinbrook Island and Hinchinbrook Channel, located near Cardwell in North Queensland.

The present proceedings challenge the validity of decisions made on 22 August 1996, by the first respondent (the "Minister") pursuant to ss. 9 and 10 of the World Heritage Properties Conservation Act 1983 (Cth) (the "World Heritage Act 1977 "). By those decisions, the Minister gave consent to the second respondent ("Cardwell Properties") to carry out certain acts related to the development of a proposed tourist resort at Oyster Point (the "Port Hinchinbrook development"), about half a kilometre from the town of Cardwell. The acts to which the Minister gave his consent were, in substance:

* the dredging of a marina access channel within Hinchinbrook Channel;

* the removal of fallen mangroves from defined areas; and

* the coppicing (cutting or pruning) of mangroves in defined areas to a height of not less than four metres above the seabed level.

The proceedings were brought by the applicant (the "Society"), which is an incorporated association with (according to the amended points of claim) a particular interest in the protection and conservation of the environment in and around Hinchinbrook Island and Hinchinbrook Channel. The Society contends that the Minister improperly exercised the powers conferred by ss. 9 and 10 of the World Heritage Act and committed a variety of legal errors in granting the consents. The Society seeks declaratory relief and orders under the Administrative Decisions (Judicial Review) Act (Cth) (the "ADJR Act 1903 "), the World Heritage Act, s.39B of the Judiciary Act (Cth), and the associated and accrued jurisdiction of the Court.

No challenge was made to the standing of the Society to seek relief. Section 13(5)(b) of the World Heritage Act 1983 provides that, for the purposes of an application under the ADJR Act in relation to a decision by the Minister to grant consent under ss. 9 or 10 of the World Heritage Act, an organisation is taken to be a "person aggrieved" if the decision relates to a matter which is within the organisation's objects and range of activities. Section 14(1) of the World Heritage Act empowers the Federal Court, on the application of an "interested person" to grant an injunction restraining a person from doing an act which is unlawful under ss. 9 or 10 of the Act. The reference to an "interested person" in s.14(1), in relation to an act that is unlawful by virtue of ss.9 or 10, includes an organisation whose objects, purposes and activities include the protection or conservation of the property in relation to which the act is unlawful: s.14(3)(b).

The Society does not seek relief against the third respondent ("Queensland"). However, prior to the hearing, Queensland applied to be joined as a respondent. On 24 October 1996, Branson J ordered, pursuant to s.12 of the ADJR Act, that Queensland be made a party to the application to the Court under that Act, on condition that it would not be entitled to seek an order for costs against any other party.

During the hearing of the claims for interlocutory relief the Minister and Cardwell Properties gave undertakings relating to the coppicing of foreshore mangroves. At the conclusion of the hearing before me, Cardwell Properties gave further undertakings relating to the mangroves, such undertakings to remain in force until 5 pm on the day judgment is delivered.

The facts were not in dispute. The evidence was exclusively documentary, a large volume of material being tendered without objection. I have been assisted by detailed written submissions from each of the parties, supplemented by oral submissions.

A Caveat

It should be stressed that the role of the Court in proceedings of this kind is not to determine the desirability or otherwise of the Port Hinchinbrook development. Nor is it to consider afresh the merits of the Minister's decision to grant the consents under the World Heritage Act. The essential issue in the proceedings is whether the Minister exceeded the powers conferred on him by the Act. The fact that not all decision-makers in the position of the Minister would necessarily have taken the same view as the Minister does not demonstrate that he committed any legal error. Whether or not he did so turns on the construction of the relevant legislation and the application to the facts of well-established principles of administrative law.

II. LEGISLATION

World Heritage Act

The Explanatory Memorandum accompanying the World Heritage Properties Conservation Bill identified the purpose of the legislation as follows:

"to provide for the protection of certain property that Australia has identified as 'natural heritage' or 'cultural heritage' within the meaning of an international treaty known as the Convention for the Protection of the World Cultural and Natural Heritage".

The Convention is set out in a Schedule to the World Heritage Act 1988 and some of its terms are incorporated by reference in the Act.

The constitutional validity of much of the World Heritage Act was challenged in The Commonwealth v The State of Tasmania [1983] HCA 21; (1983) 158 CLR 1 ("Tasmanian Dams"). The High Court, by a bare majority, upheld most of the challenged provisions. In particular, ss. 6 and 9 of the Act were upheld, subject to certain exceptions, as laws with respect to external affairs (s. 51(xxix) of the Constitution), while ss. 7 and 10 were upheld under the corporations power (s. 51(xx) of the Constitution).

The various judgments in Tasmanian Dams make observations about the scope and construction of the World Heritage Act. Since that case was decided the Act has been amended, principally by the Conservation Legislation Amendment Act (Cth). For present purposes, the relevant amendments were those altering the definition of "identified property" (now located in s. 3A) and the repeal of portions of s. 9 found to be unconstitutional in Tasmanian Dams. In general, however, the amendments do not affect the observations made by their Honours as to the construction and operation of the Act.

Section 6(3) of the World Heritage Act 1975 provides that, when the Governor-General is satisfied that any property in respect of which a proclamation may be made under the sub-section is being or is likely to be damaged or destroyed, he or she may declare, by proclamation, that property to be property to which s. 9 applies. A proclamation under s. 6(3) can be made only in relation to "identified property". That expression is defined by s. 3A(1)(a) to include property which satisfies one or more of the following conditions:

"(i) ...;

(ii) the property is subject to World Heritage List nomination [by the Commonwealth under Article 11 of the Convention];

(iii) the property is included in the World Heritage List provided for in paragraph 2 of Article 11 of the Convention;

(iv) the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage."

Part of any property referred to in s. 3A(1)(a) is also "identified property": s. 3A(1)(b). A reference in the Act to damage to, or the destruction of, property or a site includes a reference to damage to, or the destruction of, any part or feature of that property or site: s. 3(4).

The expressions "cultural heritage" and "natural heritage" have the same meaning as they have in the Convention: s. 3(1). Article 2 of the Convention provides that the following shall be considered as "natural heritage":

"natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty."

The fact that property is "identified property" is not enough of itself to authorise a proclamation under s.6(3) so as to render s.9 of the Act applicable to that property. Such a proclamation can be made only in relation to identified property that:

* is not in any State (s. 6(1)); or

* is in a State and is property to which one or more of the paragraphs in s. 6(2) relate (s. 6(2)).

One of the paragraphs in s.6(2) is the following:

"(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise".

Section 9(1) prohibits certain acts, subject to a Ministerial power of consent:

"(1) Where an act is prescribed for the purposes of this subsection in relation to particular property to which this section applies, it is unlawful, except with the consent in writing of the Minister, for a person to do that act, or to do that act by a servant or agent, in relation to that property."

Section 21(1)(a) confers power upon the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed.

Section 13(1), which is of considerable importance to the present case, limits the scope of the Minister's discretion to give a consent under s. 9(1):

"(1) In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property."

The World Heritage Act also sets up a protective regime for endangered identified property under ss. 7 and 10, although the parties in the present case disputed whether the regime is entirely independent from that enacted by ss. 6 and 9. The regime is directed to the activities of corporations. Section 7 provides that the Governor-General, if satisfied that any identified property is being or is likely to be damaged or destroyed, may, by proclamation, declare that property to be property to which s. 10 applies. Section 10(2) is as follows:

"(2) Except with the consent in writing of the Minister, it is unlawful for a body corporate that

...

(c) ... is a trading corporation formed within the limits of the Commonwealth;

whether itself or by its servant or agent:

(d) to carry out any excavation works on any property to which this section applies;

...

(h) to kill, cut down or damage any tree on any property to which this section applies;

...

(m) if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property."

Sub-sections (3) and (4) of s.10 supplement s.10(2). Section 10(3) provides that, except with the Minister's written consent, it is unlawful for a body corporate of the kind referred to in s.10(2) to do any act (not being an act already unlawful by virtue of s.10(2)) that damages or destroys any property to which s.10 applies. Section 10(4) provides that, without prejudice to the effect of s.10(2) and (3), except with the Minister's consent, it is unlawful for a trading corporation, for the purposes of its trading activities, to do any act referred to in s. 10(2)(d)-(m), or in s. 10(3).

A consent given by the Minister pursuant to ss.9 or 10 may relate to a particular act or particular acts or a particular class or particular classes of acts: s.13(2). Where the Minister grants or refuses to give a consent pursuant to ss.9 or 10, the Minister must publish in the Gazette a notice stating that:

"the consent has or has not been given and setting out particulars of the act or acts to which the consent or the refusal to give the consent relates" (s.13(4)(a)).

A copy of the notice must also be laid before each House of Parliament within five sitting days of the giving or refusal of consent: s.13(4)(b).

Section 12 of the World Heritage Act addresses the relationship between that Act and State planning laws. Nothing in ss.9 or 10 renders it unlawful for a person to do an act that is authorised to be done by a provision, plan or scheme to which s.12(3) applies: s.12(3). If satisfied that an act that may be authorised or done pursuant to a State law, or a plan or scheme formulated under State law, would damage or destroy property to which ss.9 or 10 applies, the Governor-General may declare that s.12(3) applies to the law, plan or scheme. No such declaration has been made in the present case.

Before giving his or her consent pursuant to ss.9 and 10, in relation to a property or site within a State, the Minister must inform the appropriate Minister of that State and give the Minister an opportunity to make representations in relation to the proposed consent: s. 13(3).

The Australian Heritage Commission Act

The Australian Heritage Commission Act (Cth) (the "AHC Act 1985 ") requires the Australian Heritage Commission (the "AHC") to keep a register, known as the Register of the National Estate, in which are listed places included in the Natural Estate: s.22(1). For the purposes of the AHC Act, the National Estate consists of those places, being components of the natural or cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community: s.4(1). The AHC Act lays down guidelines for determining whether a place should be included in the National Estate: s.4(2). It also establishes procedures for entering and removing places from the Register: ss.23-24.

Section 30 of the AHC Act imposes duties on Commonwealth Ministers and authorities in relation to places in the Register:

"30. (1) Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring that the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures than can reasonably be taken to minimise the adverse effect will be taken and shall not himself take any such action unless he is so satisfied.

(2) Without prejudice to the application of subsection (1) in relation to action to be taken by an authority of the Commonwealth, an authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.

(3) Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it.

(3A) Where the Commission is informed of a proposed action by a Minister, Department or authority, the Commission shall, as soon as practicable, provide its comments on the proposed action to the Minister, Department or authority (as the case may be)".

On 21 October 1980, the Cardwell Range-Herbert River Gorge area was placed in the Register of the National Estate. That area includes Hinchinbrook Island and Hinchinbrook Channel. On 26 April 1988, the Wet Tropical Forests of North Queensland, portion of which borders the western Hinchinbrook Channel, was placed in the Interim List of the Register. On 14 May 1991, the Great Barrier Reef region was placed in the Register of the National Estate.

III. FACTUAL BACKGROUND

The proposed Port Hinchinbrook development is located on 44 hectares of land at Oyster Point, adjacent to the Hinchinbrook Channel and opposite Hinchinbrook Island. The proposed resort complex, if and when completed, will accommodate a maximum of 1500 guests, plus day visitors. It will comprise convention and recreation centres, restaurants, shops, townhouses, condominiums and associated facilities. At least some of the townhouses and condominiums are to be sold or leased to individual buyers or lessees. The proposed resort will also include a marina, connected to Hinchinbrook Channel by a dredged channel, which will accommodate 234 vessels some of which will be up to 35 metres in length. The acts to which the Minister consented on 22 August 1996 are to be undertaken in connection with the Port Hinchinbrook development.

In order to understand the challenge made to the Ministerial consents, it is necessary to set out the factual background in some detail. Certain of the material that follows has been taken from a report to the Department of the Environment, Sport and Territories ("DEST") by Professor R J Fowler and Professor B Boer, entitled World Heritage Project, Part I: The Port Hinchinbrook Development (May, 1996). The report was in evidence.

-1993

In 1985, Resort Village Cardwell Pty Ltd, a subsidiary of Tekin Australia Pty Ltd ("Tekin") proposed a marina-based resort development at Oyster Point. Subsequently, the then Government of Queensland and Cardwell Shire Council granted a number of approvals for various works on the site, including the removal of mangroves. No formal environmental impact statement ("EIS") was required or obtained, there being no requirement for an EIS under Queensland law at that time. Initial work at the site commenced in 1989, including the clearing of seven hectares of mangroves and partial excavation of the proposed marina.

In 1989, Tekin applied to the Great Barrier Reef Marine Park Authority ("GBRMPA") for a permit under the Great Barrier Reef Marine Park Act 1975 (Cth) (the "GBRMP Act 1974 ") to construct an access channel and breakwater into the Hinchinbrook Channel. At the time of this application, the GBRMPA received advice from the Commonwealth Attorney-General's Department that the waters of Hinchinbrook Channel fell within the boundaries of the Great Barrier Reef Marine Park, thereby making the GBRMP Act applicable to the works. The Commonwealth Minister for the Environment directed Tekin to prepare a public environment report under the Environment Protection (Impact of Proposals) Act (Cth) (the "EPIP Act 1995 ") in relation to the offshore works. However, in 1990 Tekin went into provisional liquidation and the direction of the Minister ultimately lapsed.

Following Tekin's financial collapse, the site was left in a degraded state. The seven hectares of mangroves had been cleared along with other vegetation, while the marina site had been partially excavated. Work had not been commenced on the proposed access channel.

In 1991, the GBRMPA received further legal advice from the Attorney- General's Department that Hinchinbrook Channel, although part of the World Heritage listing of the Great Barrier Reef, was not within the Marine Park. This conclusion was reached because the waters of Hinchinbrook Channel were regarded as inland waters of Queensland and thus were outside the region over which the boundaries of the Park could extend. On this basis, approvals from the GBRMPA were not required for the marine works and the EPIP Act did not apply to the site. It may have been open to the GBRMPA to make regulations under s.66(2)(e) of the GBRMP Act, which allows regulations to be made for the purpose of prohibiting or regulating acts, whether inside or outside the Marine Park, that may pollute waters in a manner harmful to animals and plants in the Park. However, no such action was taken by the GBRMPA.

Cardwell Properties' Involvement and the Valentine Report

In May 1993, Cardwell Properties, a company controlled by Mr Keith Williams, purchased the land at Oyster Point and acquired the benefit of the approvals issued by the State and the Council.

In 1994, at the request of the Queensland Government, an environmental assessment of the revised Port Hinchinbrook development was undertaken. This did not produce a full EIS. However, a consultant's report was prepared, followed by an Environment Review Report prepared by the Queensland Department of Environment and Heritage. The Environment Review Report summarised the major issues, but dealt mainly with marine issues because of the approvals already in place. Both reports were made available for public comment over a four week period.

In June 1994, the DEST expressed the view that the Environmental Review Report was inadequate in relation to consideration of the Commonwealth's responsibilities for environmental protection, conservation and world heritage. The Commonwealth then commissioned a report, prepared by Dr Peter S Valentine, of the Department of Tropical Environmental Studies and Geography, James Cook University ("the Valentine Report"). The report, which was published in August 1994, is entitled Hinchinbrook Area - World Heritage Values and the Oyster Point Proposal.

Among other topics, the Valentine report addressed the World Heritage values associated with the Hinchinbrook Island area. These were identified by reference to the criteria applied by the World Heritage Committee in considering whether to accept the nomination for inclusion in the World Heritage List. Among the values identified in the report were the following:

* Hinchinbrook Island, the Channel and the adjacent mainland supported one of the largest occurrences of mangroves along the Wet Tropics coastline.

* Hinchinbrook Island and the Channel were areas of great scenic beauty and amenity.

* Hinchinbrook Channel had the third highest seagrass biomass along the coast between Cairns and Bowen. Perhaps the most important role of seagrasses was to provide essential food for dugongs and sea turtles.

* the Hinchinbrook area was a major feeding ground for dugong, which was a threatened species and was the only strictly herbivorous marine mammal.

The Valentine report concluded that there was an inadequate level of baseline environmental data on which to consider properly the proposal for development. The report recommended that a range of potential impacts on World Heritage values should be carefully investigated should the project proceed. The possible impacts included the effect of dredging on seagrasses; the impact of seagrass loss and increased boating and activity on dugongs and turtles; the impact on mangroves; and the effects of increased turbidity.

The report noted that most of the adverse impacts related to the construction of the marina. The author suggested two alternatives for consideration, namely, a large resort without a marina and a smaller resort (less than 100 rooms) also without a marina.

Subsequent correspondence between the Commonwealth Minister for the Environment and his Queensland counterpart reveals there was a difference of opinion concerning the impact of the Port Hinchinbrook development on World Heritage values. Despite a request by the Commonwealth Minister for a further environmental assessment, on 29 September 1994 a deed was executed by the State of Queensland, Cardwell Properties and Cardwell Shire Council. The effect of the deed was to allow the development to proceed, subject to conditions. The deed provided, inter alia, for the appointment of an independent monitor to conduct an environmental monitoring program, the cost of which was to be borne by the company. It also provided for an environmental site supervisor who could give reasonable and lawful directions to cease or modify the works to mitigate or eliminate adverse environmental impacts.

In late October 1994, Cardwell Properties began clearing mangroves on the site. In November 1994, the Commonwealth Minister requested Cardwell Properties to cease clearing mangroves while further investigations took place. This request did not result in the cessation of work.

The Proclamations and Regulations

On 15 November 1994, proclamations were made by the Governor-General, pursuant to s. 6(3) of the World Heritage Act in relation to areas of Hinchinbrook Channel at or near Oyster Point. The proclamations declared that the Governor-General was satisfied that the identified areas were likely to be damaged. There were some variations in the areas covered by the respective proclamations under s. 6(3), but nothing appears to turn on these variations. The proclaimed areas did not include Hinchinbrook Island itself.

Several days later, on 18 November 1994, reg. 3F was inserted into the World Heritage Properties Conservation Regulations (the "World Heritage Regulations"). This regulation prescribed certain acts for the purposes of s. 9(1) of the World Heritage Act in relation to the proclaimed areas (referred to as "the relevant property"). Regulation 3F(2) provides as follows:

"(2) For the purposes of subsection 9(1) of the Act, each of the following acts is prescribed in relation to the relevant property:

(a) performing excavating or other earth-moving works, including dredging;

(b) killing, removing or damaging a native plant;

(c) disturbing soil (including marine sediment) in such a way as to damage a native plant;

(d) constructing, establishing, maintaining or continuing to construct, establish or maintain:

(i) a breakwater; or

(ii) a revetment; or

(iii) any other substantial structure;

(e) carrying out work preparatory to an act referred to in paragraph (d);

(f) carrying out work associated with an act referred to in paragraph (d);

(g) introducing fluid into a body of water adjacent to or in the relevant property;

(h) permitting, authorising, directing or ordering, or purporting to permit, authorise, direct or order, the doing of an act of a kind referred to in paragraph (a), (b), (c), (d), (e), (f), or (g);

unless the act is so performed that no damage will occur to the relevant property or part of the relevant property, and whether the act is performed alone or in connection with another act."

The 1995 Applications

On 23 February 1995, Cardwell Properties applied under the World Heritage Act to the Commonwealth Minister for consent to several activities relating to the proclaimed uses of Hinchinbrook Channel. These activities included construction of breakwaters and an artificial beach, dredging of the marina access channel, and implementation of a beach and foreshore. DEST commissioned a consultants' report (the "NECS report") to consider the impact of the proposed activities on the proclaimed area.

The NECS report was completed in July 1995. It concluded as follows:

"On the basis of the review undertaken, it is concluded that the potential exists for significant quantities of sediment to be generated as a result of the proposed development which could affect the areas within the Proclaimed Area.

The precise nature of all these sediment types and volumes are unknown at present. The extent and effect of the alteration to the hydrodynamic regime at Oyster Point as a result of the construction of the breakwaters is not known. Hence the rate and location of the deposition of the additional sediment inputs is not known.

If the tidal and current regime were to deposit these additional sediments on or around sea grass beds, then this could have adverse effects on the sea grasses. There is not enough data available at present to estimate what the effects are likely to be. If the sea grass beds are lost temporarily or permanently, it is probable that impacts on resident and transient populations of fish, turtles and dugongs will occur. As such these impacts would adversely impact on the World Heritage Value of the Proclaimed Area."

On 15 September 1995, the Minister made decisions on Cardwell Properties' application. The Minister granted consents pursuant to ss.9(1), 10(3) and 10(4) of the World Heritage Act to the removal of fallen mangroves and the clearance or coppicing of mangroves in certain areas. Consent was refused to all other activities. The practical result was that Cardwell Properties could not proceed with the project.

The 1996 Applications

On 12 April 1996, Cardwell Properties made a fresh application for the Minister's consent under ss.9 and 10 of the World Heritage Act. The application eliminated the proposed breakwaters but sought consent inter alia, for the dredging of an access channel and a beach and foreshore management plan, the latter being a modification of the plan for which consent had been sought and refused in February 1995. The application was subsequently amended several times before it was ultimately determined by the Minister. The amendments proposed the removal of fallen mangroves from certain areas and the coppicing of mangroves to a height of not less than four metres in parts of those areas.

Advice to the Minister

On or shortly before 9 July 1996, the Secretary of DEST provided the Minister with a briefing paper "to assist [his] decision-making on the applications by Cardwell [Properties] for consents under the [World Heritage] Act" and list the options open to him in relation to that decision-making. The paper noted that the GBRMPA had co-ordinated an exercise which sought the views of six commissioned independent scientists and about 30 "key stakeholders". Mr Williams of Cardwell Properties had been afforded the opportunity to comment on the various views expressed. In addition, about 50 unsolicited submissions and representations had been received.

The briefing paper, inter alia, made the following points:

(i) the Minister was required to make three decisions with respect to each prescribed act, namely, a decision in relation to each activity for which consent was sought under each of ss. 9(1), 10(3) and 10(4) of the World Heritage Act;

(ii) the tests were different in relation to the s. 9(1) and s. 10 decisions;

(iii) by reason of s. 13(1), a consent could be granted under s. 9(1) only if the Minister were satisfied that the carrying out of the activity in question was consistent with the publication, conservation and preservation (within the meaning of the Convention) of the World Heritage values of the area;

(iv) the Minister could not consider under s. 9(1) economic or commercial effects or general environmental impacts unrelated to World Heritage values;

(v) the Minister could have regard to the cumulative impact on the World Heritage values of the proclaimed area of activities which were facilitated by the acts for which the consents were sought, when considering whether the consents would be consistent with the protection, conservation or presentation of that area; and

(vi) in considering decisions under ss.10(3) and (4) of the World Heritage Act, the Minister could consider, in addition to World Heritage values, general economic, commercial and other considerations, including the impact on the National Estate.

The briefing paper addressed the approach available to the Minister on the question of granting consent:

"In considering whether carrying out each particular activity for which consent is sought is consistent with the 'protection, conservation and presentation' of the proclaimed area, you are entitled to be cautious. If your mind is evenly balanced on the issue you would be entitled to refuse consent. If you are inclined toward granting a consent but are concerned about some matters relevant to the conservation, protection or preservation of the proclaimed area that you feel could be addressed by, for example, the existence of a management plan or an undertaking by the proponent, then you would be entitled to indicate that. If a relevant plan or undertaking were to be provided you would be entitled to take that into account in making a decision".

The briefing paper also considered the operation of the AHC Act:

"Decisions granting consent under s.10(3) and 10(4) of the Act will attract the operation of the AHC Act if the activities permitted under the consents adversely affect a place that is part of the national estate. By virtue of s. 30(1) of the AHC Act, if the activities permitted under the consents adversely affect a place that is part of the national estate, you must not give consent under s. 10(3) and 10(4) unless you are satisfied that there is no feasible and prudent alternative to the giving of the consent and that all measures that can reasonably be taken to minimise the adverse effect on the National Estate will be taken.

The Australian Heritage Commission ("the AHC") strongly recommended that impacts on Aboriginal heritage values should be considered (see GBRMPA stakeholders comments and letter to GBRMPA from the AHC at Attachment 11). The AHC does not specify these values but notes that they are likely to exist in the Channel and its National Estate surrounds including Hinchinbrook Island. The AHC letter also raises the potential for impact on National Estate listed places in the hinterland, particularly in the Cardwell Ranges. It is, in our view, unlikely that any consents you might consider granting would impact directly on these areas. There is an opportunity to consider management arrangements to minimise any consequential effect and we note that the draft Wet Tropics Management Plan is relevant. The protection of Aboriginal Heritage values is also an object to be met in the development of a Hinchinbrook Channel Regional Plan."

The briefing paper then considered in some detail conflicting views expressed in relation to beach and foreshore management and the dredging of the main access channel. The paper suggested that the Minister might be disposed to grant consent for initial dredging, but require Cardwell Properties to provide, by deed, a commitment to use best engineering practice and to monitor and manage further maintenance dredging.

Under the heading "Overall Impact on World Heritage Values", the briefing paper observed that perhaps the most important World Heritage issue associated with the development of the resort was the potential direct and indirect impact on dugongs because of their reliance on seabed grasses and their susceptibility to being struck by boats. After considering a report on the issue from Professor Marsh, the paper stated that the Minister might reach the view that:

"prior to providing any consents that will lead to the development of the Port and a significant associated increase in boat traffic, you wish to be assured by the Queensland Government that they will monitor dugong behaviour, and introduce management plans, including, if necessary, speed limits for all boats and key habitat zones from which boats are excluded. Any such action plan for the dugong could also address any other forms of anthropogenic threat to this creature such as gill netting or indigenous hunting."

Additional concerns relating to the scale of the resort near a sensitive region of the World Heritage area, including Hinchinbrook Island, were:

"best addressed through interim and permanent management measures to ensure that World Heritage and National Estate values are not damaged. You might consider it important to have an undertaking from the Queensland Government in relation to the development of such a plan prior to granting any consents you might be considering."

The paper identified the options open to the Minister as follows:

"In relation to each of the activities the subject of the applications for consent, the options open to you are as follows:

you may consent to the activity under ss. 9(1), 10(3) and/or 10(4); or

you may refuse consent to the activity under ss. 9(1), 10(3) and/or 10(4); or

you may defer a decision pending the provision of additional assurances."

A Tentative View

On 9 July 1996 the Minister issued a press release stating that, on the basis of advice, he was satisfied that:

"provided best practice engineering approaches are used, the activities proposed could be carried out in a manner which is consistent with the protection, conservation and presentation of the World Heritage Values of the area and without causing any significant damage to the immediate environment around Oyster Point."

The Minister further stated that he was inclined to grant consent, but wished to be satisfied that best practice engineering practices could be adequately provided for by legally binding arrangements. He also wished to finalise details of a process to develop an integrated management plan which would address the broader development issues facing the Hinchinbrook area. In addition, he would consider the representations of the Queensland Minister and the comments of the Australian Heritage Commission ("AHC").

On 10 July 1996, the Minister wrote to Mr Williams of Cardwell Properties stating that he was inclined to grant the consents, other than for the application in relation to the breakwaters, which had been withdrawn. He invited Cardwell Properties to enter discussions to put in place management practices by way of a deed or otherwise, which would make provision for:

* stabilisation of the foreshore;

* monitoring continuing erosion;

* controlling the impact of acid sulphate soil; and

* ensuring best practice dredging.

On the same date, the Minister wrote to his Queensland counterpart, expressing the view that:

"an agreement between your Government and the Commonwealth to put in place appropriate measures to develop management arrangements for the entire Hinchinbrook Channel region would be the most appropriate mechanism for dealing with concerns arising from the development pressures within the region, including concerns expressed about the long term impact of the proposed development at Oyster Point.

I envisage such a plan would address the issues raised in my Department's letter of 11 June 1996, and in particular the protection of dugong and seagrass, but may well pick up additional matters such as control of day visitors to Hinchinbrook Island and appropriate provision for the protection of Aboriginal cultural heritage. The Commonwealth has already agreed to provide financial assistance for its development."

Advice from the AHC

In a letter dated 25 July 1996, and in subsequent correspondence, the AHC expressed the view that granting consents to the proposed actions would have adverse effects on some National Estate values immediately within the proclaimed World Heritage area and potentially significant, long term adverse effects on the National Estate values in the wider region. The three national estate areas identified by the AHC as most affected by the proposal were the Great Barrier Reef area, the Cardwell Range-Herbert River Gorge area and the Wet Tropical Forests of North Queensland. The AHC acknowledged that some of the adverse impacts could be substantially lessened by appropriate measures, such as those proposed for in a deed of agreement or a Regional Management Plan. However, on balance, it considered that there would be adverse effects on the National Estate because of the scale of the development, the nature of the environment, the lack of certainty in predicting the impact of the development and difficulty of ensuring compliance with conditions and planning measures. The AHC made detailed comments as to the impact on National Estate values and suggested measures to be included in any deed of agreement or Regional Management Plan which it considered essential to minimise the impact of the proposed development.

On 7 August 1996, the Minister wrote to the Chair of the AHC. He stated that, in view of the AHC's opinion that there would be an adverse impact on National Estate values within the proclaimed area, he formally advised the AHC, in accordance with s.30(3) of the AHC Act, that he proposed to give consent to the dredging of the marina access channel to the beach and foreshore management plan. He invited the AHC to comment on the proposed consent.

The AHC did so on 9 August 1996. The AHC repeated the view expressed in its earlier letters. It referred to the draft deed which had been prepared and noted that the deed addressed many of its concerns. However, the AHC considered that there were still potentially a number of adverse effects and suggested that amendments should be made to the deed to address its concerns. The AHC also observed that the Regional Hinchinbrook Management Plan would be prepared in accordance with Queensland law over the succeeding 12 months, but that it (the AHC) would only be able to comment once the Plan was prepared.

Advice of 14 August 1996

On 14 August 1996, the Executive Director of the Environment Strategies Directorate within DEST provided further advice to the Minister. The advice included an attachment analysing the consent applications. The attachment contained the following conclusion and advice:

"On the basis of the scientific evidence, all of the measures contained in the Deed of Variation and for which provision is made in the regional planning arrangements, it is the Department's view that the revised BFMP [beach and foreshore management plan] as described in Schedule 3 to the Deed of Variation can be implemented consistently with the protection, conservation and presentation of the World Heritage. For the purposes of your decisions under s. 9 of the Act, therefore, your consent to the acts itemised above is consistent with the protection, conservation and presentation of the World Heritage property. For the purposes of your decisions under s. 10 of the Act, taking into account all other relevant matters, including economic and commercial considerations, and matters relating to the National Estate, each of the acts for which consent is required as part of the revised BFMP could be carried out consistently with the protection, conservation and presentation of the World Heritage property and without any significant damage to the immediate environment around Oyster Point.

...

I reiterate that in relation to decisions under s.9(1) of the Act, you may consider only such evidence that is relevant to the protection, conservation and presentation of World Heritage. Under s.10(2), (3) and (4) you are also required to consider all other relevant evidence and must consider the potential social, economic and commercial impacts as well as issues arising by virtue of your responsibilities under the AHC Act relating to the National Estate."

Deed of Variation

On 20 August 1996, a deed of variation was executed by and on behalf of Cardwell Properties, Cardwell Shire Council, the State of Queensland and the Commonwealth. The purpose of the deed of variation was said to be to amend the deed of 29 September 1994 ("the 1994 deed"), which governed the development of the Port Hinchinbrook site, so as to include the Commonwealth as a party: cl.3. The deed of variation recited, inter alia, that Cardwell Properties had resolved to seek variations of certain consents and approvals it held to accommodate certain concerns of the Commonwealth and that the company had applied for Ministerial consent under the World Heritage Act to do certain acts. It recited that, before the Minister was prepared to make a decision on the grant of consents, he required the company to enter into "certain legally enforceable arrangements to ensure the protection, presentation and conservation of the world heritage values in relation to the Proclaimed Areas".

The deed provided for the site to accommodate a maximum of 1500 people (cl.20.1). The company was not to construct more than two levels of accommodation and one level of carpark (cl.20.2). However, the highest building base could be up to six metres above the highest astronomical tide (cl. 20.3). Except with consent of the Council, maximum building height measured from the base was to be 13 metres to the top of the roof, except for special purpose buildings which had a limit of 15 metres (cl.20.4, 20.5). Buildings could be constructed up to 20 metres from the seaward boundary of the site (cl.20.6).

The company was to comply with all applicable laws, regulations, management plans and draft management plans with respect to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (cl. 19.1). Clause 19.2 provided as follows:

"Any of the Company's proposed activities in regional, national or marine parks which may result in new or significantly increased impact or visitations, without limitation, must be consistent with the conservation, protection and presentation of world heritage property, and any management plan or draft management plan prepared by the Department and notified to the Company".

The deed provided that Cardwell Properties could not assign its interest under the deed or change its beneficial holding (unless it was a listed company) without the consent of the other parties (cl.25.1, 25.2). The other parties could consent to the proposed assignment if the assignee covenanted with each of those parties to comply with Cardwell Properties' obligations under the deed (cl.25.5).

Further reference will be made to the terms of the deed as varied when I consider the reasons given by the Minister for his decision to grant consents for certain activities.

The Memorandum of Understanding

On the same date as the deed of variation was executed, 20 August 1996, the Commonwealth and the State of Queensland entered into a Memorandum of Understanding (the "MOU"). By way of background, the MOU recorded that the Commonwealth and Queensland had entered into the agreement to:

"ensure that any resort or other commercial development which is approved in the Hinchinbrook region, including the proposed development at Oyster Point by Cardwell Properties Pty Ltd, is carried out in accordance with interim arrangements and final regional management plans which ensure natural and cultural values are adequately protected."

The MOU provided for the establishment of a management committee consisting of one senior official from each of the Commonwealth and the State: cl.1.1. The management committee was required to:

"agree on and use its best endeavours to implement a process to put in place:

(a) interim management arrangements for the Hinchinbrook region as soon as possible should there be a demonstrated need; and

(b) a final management plan for the Hinchinbrook region ... no later than 30 June 1998, with the parties and the Management Committee using their best endeavours to have the final plan in place by 31 December 1997 (cl. 1.2)".

The management committee was required to consult with the regional advisory committee established under the Coastal Protection and Management Act (Qld) (the "Coastal Protection Act 1987 ") in relation to the interim management arrangements and final management plan: cl.1.3. In agreeing on a process the management committee was to have regard to the document entitled "Terms of Reference for the Cardwell/Hinchinbrook Regional Coastal Management Plan", attached to the MOU (the "Terms of Reference").

The MOU identified the "main broad objectives" of the interim arrangements and the final plan for the Hinchinbrook region as follows (cl.2.1):

"
* protect and conserve natural and cultural values, particularly world heritage values;

* provide for management of current and future activities which may impact individually or cumulatively on the region's environment, so that they are ecologically sustainable;

* provide guidance for decision makers and stakeholders as to the acceptability or otherwise of current and proposed activities;

* provide for ongoing community involvement in the management of the region's coast through participation in plan development and review;

* provide for monitoring and reporting arrangements on effectiveness in meeting the plans' objectives; and

* identify responsibilities and resource requirements for the plans' implementation."

The MOU also identified the values which needed to be addressed "with particular attention in the arrangements and plan", including the following (cl. 2.2):

"
* World Heritage, National Estate and other high conservation values including rare, threatened and endangered species;

* critical and/or sensitive habitats, such as seagrass and mangroves;

* Aboriginal sites and use values;

* scenic values;

* water quality; and

* biodiversity."

The MOU specified a number of activities which had to be addressed and controlled under the plans (cl.2.3). These included:

"
* coastal development or construction;

* mangrove removal, reclamation or other foreshore modifications; and

* motorised water sports and boating operations generally, especially implementation of speed limits in areas of high dugong density".

The Commonwealth's responsibilities under the MOU were to advise the management committee on World Heritage and National Estate values to be protected and to make financial contributions to the process of developing the management plan: cl.3.1. The State's responsibilities were to advise the management committee on how the interim arrangements and the final plan would be formulated and implemented in accordance with the State's administrative and legislative framework and to meet certain costs and expenses: cl.3.2.

Clause 3.3 of the MOU was as follows:

"3.3 Both the Commonwealth and the State, within their respective legislative and contractual powers, will use their best endeavours to ensure that the establishment of any resort or any other commercial development in the Hinchinbrook region is carried out in accordance with the interim arrangements and the final plan and any legislation relating to the protection of natural and cultural values for which the Commonwealth and the State are respectively responsible."

The Terms of Reference attached to the MOU noted that the development of a plan was identified as necessary during negotiations in relation to Oyster Point. The document also noted that it was proposed to expand this requirement and undertake a broader planning program for a wider area. It was said that such a program could best be achieved by developing a Regional Coastal Management Plan under the Coastal Protection Act, this being the first use of a "relatively new Act".

The Terms of Reference reproduced the objectives specified in the Coastal Management Act: ss.3, 31. They also reproduced the objectives set out in s.2.1 of the MOU and the values identified in cl.2.2 of the MOU. However, the Terms of Reference also included among the values which needed to be addressed "social and economic values". Social and economic values were not included in the list of values identified in cl.2.2 of the MOU.

The Consents

On 22 August 1996 the Minister granted the consents which are the subject of challenge in the present proceedings. The instrument of consent revoked the consents granted on 15 September 1995 and gave the following consents under the World Heritage Act:

* pursuant to s. 9(1), a consent to Cardwell Properties dredging the marina access channel;

* pursuant to s. 10(2), (3) and (4) consents to Cardwell Properties dredging the marina access channel in the marina channel area;

* pursuant to s. 9(1), a consent to Cardwell Properties removing fallen mangroves from specified areas and coppicing mangroves in some of these areas to a height of not less than four metres above average seabed level;

* pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves seaward in the specified areas and coppicing mangroves seaward in some of those areas;

* pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves landward in the specified areas and coppicing mangroves landward in some of those areas; and

* pursuant to s. 10(4), a consent to Cardwell Properties removing fallen mangroves from the specified areas and coppicing mangroves in some of those areas.

Release of Key Documents

On 11 September 1996, the Minister released "key documents" relating to the assessment process. The accompanying document contained the following paragraph:

"I wish to emphasise the Commonwealth's commitment to the regional planning process. We understand Queensland share[s] our commitment to this process. The Commonwealth, however, has particular responsibility for protection of world heritage values. Accordingly, if for any reason the regional planning process does not deliver the required protection for world heritage values then I will use all powers available to me to protect world heritage values in the Hinchinbrook area, including those values in the Hinchinbrook Channel and on Hinchinbrook Island."

Statement of Reasons

On 23 August 1996, the applicant requested the Minister to provide reasons for his decisions. On 8 October 1996, shortly after the present proceedings were instituted the Minister released a statement of reasons for his decisions under ss.9(1), 10(2), (3) and (4) of the World Heritage Act, that "consent be given for Cardwell Properties Pty Ltd to implement a revised Beach and Foreshore Management Plan and to dredge the marina access channel at Oyster Point, Queensland".

The reasons set out background information and noted that Cardwell Properties' proposed actions required consent:

(i) under s.9(1), because they involved the company doing, in relation to areas proclaimed under the regulations, acts prescribed by reg. 3F;

(ii) under s.10(2), to the extent they involved the company, being a trading corporation, doing in the proclaimed area acts prohibited by s.10(2)(d) and (h);

(iii) under s.10(3), because they involved the company, being a trading corporation, doing acts (not already being unlawful under s.10(2)), which might damage or destroy the proclaimed area; and

(iv) under s.10(4), because the acts referred to in (ii) and (iii) were to be done by the company, being a trading corporation, for the purposes of its trading activities.

The reasons record a finding by the Minister that the proposed dredging of the marina access channel could potentially have immediate and cumulative, continuing and consequential impacts on the proclaimed area, specifically through increased turbidity and maintenance dredging, both of which could damage seagrasses (para. 24). The Minister also found that independent scientists held the view that the dredging of the marina access channel could go ahead without significant impact on the immediate environment around Oyster Point provided best engineering practices were used. In particular, he found that techniques to control dispersion could be utilised to minimise the impact of dredging (para.25).

The Minister found that the potential impacts were addressed in the amended deed as follows (para. 26):

"(a) all waters flowing from the land as a result of construction activities (which includes maintenance dredging) must, so far as turbidity is concerned, be of a quality at least equal to that of the receiving waters and, so far as pH is concerned, be within a pH range of 6 to 9 (Cl.7.1 of the Deed, as amended);

(b) Cardwell cannot commence dredging until the Commonwealth approves the Turbidity Control Plan (TCP) (Cl.7.3 of the Deed, as amended);

(c) all plans, including the TCP, are required to be prepared and implemented in accordance with best engineering practice (Clause 4.4 of the Deed as amended);

(d) the TCP will deal with a number of key issues affecting water quality in Hinchinbrook Channel, namely marina de-watering, operation of spoil ponds, stabilisation of the development site, management of stormwater and the management of acid sulphate soils (Cl. 7.1 of the Deed as amended); and

(e) the Commonwealth has various powers to ensure compliance, including certain powers of entry (clause 26 of the Deed as amended) and certain powers to remedy any default by Cardwell at the expense of Cardwell (clauses 7.8 and 24, as amended)".

The Minister further found that the parties to the amended deed had been advised that the Minister would not approve the TCP unless it provided for best practice engineering methods to be followed for the dredging of the marina access channel (para.27).

In relation to the proposed Beach and Foreshore Management Plan at Oyster Point, there was a risk that the actions under the Plan could increase turbidity and thus cause immediate and cumulative impacts on the seagrasses in the proclaimed area, which might adversely affect the dugong population (paras.29 and 30). However, the Minister found that adequate measures would be in place under the revised Plan and the amended deed to address the risk of any impacts associated with the actions under the Plan (see para. 32, where the relevant clauses of the amended deed are summarised). These included an obligation on Cardwell Properties to implement a revised Beach and Foreshore Management Plan; a requirement under the Plan that Cardwell Properties undertake new mangrove plantings in certain areas and refrain from clearing certain surviving mature mangroves; and provision for monitoring the affected areas.

The Minister found that the dredging of the marina access channel would lead to increased boating in the proclaimed area, which in turn would increase the risk of boats striking dugongs (para. 34). The Minister also found that:

"(a) the potential impact...could be adequately addressed by the development and implementation of the proposed regional plan;

(b) the proposed regional plan would provide for further studies to be undertaken into the status of dugong populations and for management arrangements to be put in place to protect, conserve and present this World Heritage value; and

(c) it was likely that the proposed regional plan would be in force before the resort was operational" (para.35).

There was an increased risk of pollution in the proclaimed area from the operation of the resort and from increased numbers of visitors. However, these impacts had been adequately addressed in the deed and would be addressed in the proposed regional plan (para 36). The Minister concluded as follows (para 38):

"Having regard to the protective arrangements which have been put in place and those that I expected would be put in place, I found that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant."

The reasons for the decisions to grant consents under s.9(1) of the World Heritage Act were expressed as follows:

"39. In determining whether to give consents under s. 9(1) of the Act, I had regard only to the protection, conservation and preservation [sic - presentation] (within the meaning of the Convention) of the proclaimed area.

40. I considered the potential immediate and direct impacts of the proposed actions on the proclaimed area. I also gave consideration to potential cumulative, continuing and consequential impacts on the proclaimed area, recognising that granting consents would facilitate the construction and operation of the resort.

41. On the basis of the findings in paragraphs 24-38 I concluded that any such potential impacts would be limited and ameliorated by the protective measures provided for in the revised [Plan] and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought."

The Minister then addressed the reasons for granting consents under s. 10(1) of the World Heritage Act. He found that there were potential impacts flowing from the size of the proposed resort and marina, including increased boating and a large number of day visitors (para.43). There was a risk of boats striking dugongs and the Great Barrier Reef World Heritage area could be adversely affected unless appropriate management arrangements were put in place (paras.45-46). The Minister also found that the potential impacts could be adequately addressed through the development and implementation of the proposed regional plan (para.47). Other relevant findings included the following:

* management plans for the Wet Tropics World Heritage area and for Hinchinbrook Island were likely to be finalised and in place before the resort was operational; such plans would be likely to ensure the protection, conservation and presentation of the Hinchinbrook region environment (para.48);

* under the deed as varied, Cardwell Properties had to comply with laws, regulations, plans and draft management plans relating to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (para.49);

* the proposed regional plan would provide for management arrangements, including further studies, to be put in place to conserve the dugong population and it was likely that the arrangements would include the regulation of boat speeds and identification of areas from which boats would be excluded (para. 50).

The statement of reasons continued as follows:

"52. Having regard to the protective arrangements which had been put in place and those that I expected would be put in place, I found that the risk of:

(a) adverse impacts on environmental values of the proclaimed area other than World Heritage values; or

(b) adverse impacts on environmental values of the adjacent areas and the surrounding region, including but not limited to World Heritage values,

as a result of the proposed actions and the construction and operation of the resort and the marina, was so low as in all the circumstances to be insignificant.

53. I found that because granting consent would facilitate the development of the resort it would accordingly deliver significant economic and commercial benefits to the Cardwell region. These benefits would be delivered principally through increased employment opportunities and through increased economic activity associated with the operation of the resort and with the growth in tourist numbers. However, I gave such considerations relatively little weight.

54. I accepted that the giving of consents under s. 10 of the Act would be an action that might adversely affect, as part of the national estate, a place that is in the Register of the national estate, within the meaning of s.30(1) of the AHC Act. Accordingly, for the purposes of my decisions under s.10, I gave consideration to the matters set out in s.30(1) of the Act.

55. I found that there was no feasible and prudent alternative to the giving of the consents and that all measures that could reasonably be taken to minimise any adverse effect on the National Estate would be taken.

...

58. On the basis of [previous] findings I concluded that any such potential impacts on the proclaimed area would be limited by the protective measures provided for in the revised [Plan] and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought.

59. In relation to the adjacent areas and the surrounding region, I concluded, on the basis of the [previous] findings that any potential adverse impacts would be limited and ameliorated to such an extent by the proposed management arrangements that granting the relevant consents would -

(a) be consistent with the protection; conservation and presentation of World Heritage values; and

(b) ensure an adequate level of protection for National Estate values and other environmental values."

The Minister accepted the AHC's view that giving consent to the proposed actions under s.10 might adversely affect each of the three listed National Estate areas (para.65). He considered that there were alternatives to giving consents, namely, to refuse all consents; to refuse consent to the dredging, thereby preventing establishment of the marina; or to refuse consent unless Cardwell Properties agreed to reduce the size of the resort (para.68). The Minister found that if any of the alternatives was adopted, Cardwell Properties would refuse to proceed with the project and that the region would lose significant commercial and economic benefits (paras.69-70). Accordingly, the Minister concluded that none of the alternatives was feasible or prudent (para.72). Moreover, having regard to the finding that each of the proposed plans was likely to be in force before the resort became operational, all measures that could reasonably be taken to minimise the adverse effects on the region would be taken (paras. 75-76).

IV THE ISSUES

The Applicant's Contentions

As is often the case in challenges to decisions on administrative law grounds, the applicant relied on a large number of arguments, some of which overlapped. In brief, as I understood them, the principal grounds relied on under that Act were the following:

(i) The Minister's consent under s.9(1) of the World Heritage Act was an exercise of the power so unreasonable that no reasonable person could have so exercised it: ADJR Act, s.5(1)(e), (2)(g). Given the warnings to the Minister of adverse impacts on World Heritage values, it was unreasonable for him, in effect, to rely on the Government of Queensland to take the necessary action to eliminate or minimise those impacts.

(ii) In any event, the Minister misconstrued the statutory power under the World Heritage Act: ADJR Act, s. 5(1)(d), (f). Section 9(1) of the World Heritage Act, in the light of s.13(1), empowered the Minister to grant consent only if satisfied that there would be no material adverse impact on the protection and conservation of the proclaimed property. The Minister did not satisfy himself of these matters at the time he made the decision. Rather, he allowed others to address the issue at a later stage, in the context of management plans or other measures to be taken by State authorities. Thus the Minister had improperly deferred consideration of relevant questions: ADJR Act, s. 5(1)(e).

(iii) As a matter of construction of the World Heritage Act, the Minister was not entitled to take account of what he believed the State would or might do pursuant to State laws, plans or schemes. To do so constituted an error of law by taking into account an irrelevant consideration: ADJR Act, s.5(1)(e), (f), (2)(a). Moreover, the Minister had failed to pay regard to the provisions of the Convention in exercising his powers under ss.9 and 10 of the World Heritage Act.

(iv) The Minister erred in law because he mistakenly assumed that he had no power to impose conditions on any consent granted under ss. 9 and 10 of the World Heritage Act: ADJR Act, s. 5(1)(f). By reason of this mistake, he approached the question of controls by means of the deed as varied and the MOU, rather than conditions imposed on Cardwell Properties.

(v) The Minister failed to give consideration to the landscaping of the development site, thereby overlooking a factor relevant to the scenic features of the proclaimed area and nearby places on the Register of the National Estate: ADJR Act, s.5(1)(e), (2)(b).

(vi) The Minister erroneously took into account the matters specified in s.30 of the AHC Act only in relation to the decision required under s.10 of the World Heritage Act and not in relation to the decision under s.9: ADJR Act, s.5(1)(e), (f), (2)(b).

(vii) The grant of consents under s.9(1) of the World Heritage Act took into account an irrelevant consideration, because the terms of reference for the regional management plan, annexed to the MOU, specifically required social and economic values to be taken into account: ADJR Act, s.5(1)(e), (2)(a).

(viii) Although the Minister claimed not to have taken into account social and economic factors in granting consents under s.9(1) of the World Heritage Act, in fact he did so, thereby taking into account irrelevant considerations: ADJR Act, s.5(1)(e), (2)(a).

(ix) In exercising his powers under the World Heritage Act and the AHC Act the Minister failed to apply the "Precautionary Principle", that decision-makers should be careful to prevent irreversible harm to the environment in circumstances of scientific uncertainty concerning the nature and scope of environmental harm. Thus he failed to take account of a further relevant consideration: ADJR Act, s.5(1)(e), (2)(a).

(x) The Minister failed to give proper, genuine and realistic consideration to the requirement in s.30(1) of the AHC Act to consider whether there were feasible and prudent alternatives to the granting of consent and, in any event, his determination on this question was manifestly unreasonable: ADJR Act, s.5(1)(e), (2)(g).

Common Ground

There was some common ground between the parties. That common ground related to the test applied by the Minister in order to determine whether consents should be granted under s.9(1) of the World Heritage Act.

Section 9(1) imposes a prohibition, by making it unlawful to do a prescribed act in relation to proclaimed property, except with the Minister's written consent. The most important prescribed acts in the present case were excavating (including dredging) in the relevant areas of Hinchinbrook Channel and killing, removing or damaging native plants in those areas: World Heritage Properties Conservation Regulations (as amended), reg.3F(2)(a),(b). Section 13(1) of the World Heritage Act provides that in determining whether or not to give a consent pursuant to s.9(1) in relation to any property to which s.9 applies, the Minister "shall have regard only to the protection, conservation and presentation...of the property" [emphasis added].

The reference to "property" in s.13(1) is to the particular property which forms part of the World Heritage - in this case the portions of Hinchinbrook Channel described in the proclamation under s.6(3) of the World Heritage Act. Thus, the Minister is to have regard only to the protection, conservation and presentation of that property: Tasmanian Dams, at 143, per Mason J. That leaves unresolved the meaning of the words of s.13(1) quoted in the previous paragraph.

In Tasmanian Dams, Mason J said (at 143) that the terms of s.9(1)

"may mean that the Minister is bound to refuse consent when (a) the applicant fails to satisfy the Minister that a proposed activity or development is consistent with the "protection, conservation and presentation" of the property; or (b) the Minister's mind is evenly balanced on that issue.

The scope of the Minister's discretion in s.13(1) is therefore narrower than the discretion to grant or refuse consent in regs.5(1) and (2) of the World Heritage (Western Tasmania Wilderness) Regulations which enables the Minister to take into account and balance considerations which compete against the protection and conservation of the property."

This construction of s.9(1) was described by Mr Hilton SC, who appeared with Mr Faulkner for the Minister, as imposing a stringent test, in the sense that the Minister could only grant consent if positively satisfied that a proposed activity is consistent with the protection, conservation and presentation of the relevant property.

The language of s.9(1) is open to another, less stringent, construction. In Richardson v The Forestry Commission [1988] HCA 10; (1988) 164 CLR 261, Mason CJ and Brennan J commented on s. 18(1) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act (Cth). The sub- section provided that, in determining whether or not to give a consent under s. 16, inter alia, to forestry operations, the Minister "shall have regard only to Australia's obligations under" the Convention. It was therefore framed in language very similar to that used in s. 13(1) of the World Heritage Act 1979 . Mason CJ and Brennan J said (at 293) that s. 18(1):

"should be understood as disentitling the plaintiff to refuse consent except when refusal is necessary for the protection of the heritage or otherwise for the satisfaction of Australia's obligations under the Convention".

Compare at 335, per Toohey J; at 348, per Gaudron J.

Clearly enough, the test suggested by Mason CJ and Brennan J in Richardson v Forestry Commission is less stringent than that proposed by Mason J in Tasmanian Dams (whose comments on this point were not referred to in the later case). This is because, on the construction adopted by Mason CJ and Brennan J, the Minister is bound to grant consent to the acts otherwise prohibited unless he or she determines that refusal is necessary to achieve the specified standard (namely, in the case of s.9(1), the protection, conservation and presentation of the relevant property).

Mr Hilton submitted that, whichever approach to s. 13(1) is correct as a matter of construction, the Minister in fact applied the more stringent test laid down by Mason J in Tasmanian Dams. This test was less favourable to Cardwell Properties, since it was less likely to result in the granting of consent to the actions otherwise prohibited by s.9(1). Mr Hilton pointed to the language used by the Minister in para.41 of the reasons, together with the Minister's conduct in deferring the granting of consents in July 1996 until satisfied that adequate protective arrangements were in place as supporting this conclusion. Mr Tobias QC, who appeared with Dr Griffiths for the applicant, accepted that this submission was correct.

This is a matter of some importance. It means that the Minister, in determining whether or not to grant consents under s. 9(1), applied a test the correctness of which is not challenged. While the applicant contends that the Minister committed other errors of law, it is not suggested that he did otherwise than apply a test at least as stringent as that laid down by s.9(1). It is appropriate to bear in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. The joint judgment (Brennan CJ, Toohey, McHugh and Gummow JJ), referred with approval (at 272) to the observation of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, at 287, that the

"reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

Their Honours continued (at 272):

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin ((1990) 170 CLR 1, at 35-36):

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

See also at 291-292, per Kirby J.

A Preliminary Question: The Relationship between Consents given under ss. 9 and 10 of the World Heritage Act

The Commonwealth, supported by Queensland, submitted that, if the Minister validly granted consent to an act pursuant to s. 10 of the World Heritage Act, that consent is sufficient to authorise the act even if the Minister's purported consent to the same act under s. 9 is invalid or liable to be set aside. Mr Hilton pointed out that the Minister had consented to the dredging of the marina access channel under ss. 9(1), 10(2), 10(3) and 10(4) of the Act. Similarly, he had consented to the coppicing of mangroves pursuant to each of those sub- sections (although the consents under s.10(2) and (3) covered different areas). It was enough to make the acts of dredging and coppicing lawful that the Minister had validly consented under s.10, regardless of whether the consents granted under s.9 were invalid or liable to be set aside. It followed that if there were any defects in the consents under s.9, they had no legal significance provided the relevant acts had been the subject of valid consents under s.10.

The starting point for the argument was that the World Heritage Act had been drafted in reliance upon distinct heads of Commonwealth legislative power. Sections 6 and 9, as Tasmanian Dams showed, were enacted pursuant to the external affairs power (Constitution, s.51(xxix)), while ss.7 and 10 were supported by the corporations power (Constitution, s.51(xx)); see Tasmanian Dams at 142-144, 146-153, per Mason J; 170-179, 179- 180, per Murphy J; 235-239, per Brennan J; 253-268, 268-272, per Dean J; Richardson v Forestry Commission at 289-290, per Mason CJ and Brennan J. The legislative intention, according to Mr Hilton's argument, was that the Commonwealth should be able to prohibit acts likely to damage or destroy World Heritage values unless the Minister granted consent to those acts. If consent was given, the source of the statutory power was immaterial; the effect was to remove the prohibition on the acts covered by the consent.

In my view, this submission is not consistent with the language and structure of the World Heritage Act. It is undoubtedly correct that Parliament invoked different heads of constitutional power when enacting, respectively, ss.6 and 9 and ss.7 and 10 of the Act. It may also be, although this is less clear, that s. 13 was enacted because the drafter took a more limited view of the scope of the external affairs power than was ultimately adopted by the High Court. These factors do not, however, lead to the conclusion that the Minister's consent to an act, granted under s.10, suffices also to authorise that act under s.9. It remains necessary to pay close attention to the statutory language.

Section 9(1), in its amended form, provides that, when an act is prescribed, it is unlawful except with the Minister's written consent. The Minister, in deciding whether or not to give a consent pursuant to s.9, must have regard only to the criteria specified in s.13(1). Those criteria, as the Minister expressly accepted in his reasons for the decision to give the consents, are narrower than those that can be taken into account in deciding whether or not to give consent under s.10 of the Act. Whatever the historical reasons for the drafting of ss.9, 10 and 13, the fact is that the giving of consent under s.9 is governed by different statutory standards than the giving of consent under s.10. This suggests very strongly that the expression "consent in writing" used in s.9(1) is intended to mean a consent granted pursuant to that sub-section and not one granted under some other provision of the Act.

A further consideration is that s.9(1) prohibits "an act prescribed for the purposes of [the] subsection", while s.10(2) prohibits specified acts on property to which the section applies if carried out by a corporation. It is true that in the present case reg.3F prescribed acts for the purposes of s.9(1) which correspond, albeit not precisely, to some of the acts expressly prohibited by s.10(2). However, there is no necessary connection between acts prohibited by s.10(2) and acts prescribed for the purposes of s.9(1). This reinforces the conclusion that the prohibition in s.9 is intended to operate independently from that imposed by s.10 and that a consent granted under s.10 does not have the effect of a consent under s.9. Were it otherwise, the restrictive criteria stated in s.13(1) would have no practical effect where the Minister gives consent, pursuant to the broader discretion conferred by s.10, to acts to be carried out by a corporation.

It follows that it is necessary to consider the challenges made by the applicant to the Minister's consents given under s.9 of the World Heritage Act, even if the Minister's consents under s.10 are not liable to be set aside.

V REASONING

Unreasonableness

Mr Tobias placed the issue of unreasonableness at the forefront of his challenge to the Minister's decision to grant the consents under ss.9 and 10 of the World Heritage Act. It will be recalled that s.5(2)(g) of the ADJR Act provides that the reference in s.5(1)(e) to the "making of a decision [being] an improper exercise of the power conferred by the enactment" includes a reference to an exercise of power "that is so unreasonable that no reasonable person could have exercised it".

There is a tension between the principle, most recently re-stated in Minister v Wu, that courts should avoid intruding into the merits of administrative decisions and the grounds of review embodied in ss.5(1)(e) and (2)(f) of the ADJR Act. The tension arises because the unreasonableness ground is "inescapably concerned with the substantive quality of the impugned decision": M Aronson and B Dyer, Judicial Review of Administrative Action (1996), at 365. In Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at 42, Mason J saw the tension as requiring that:

"a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits".

Mason J's warning is reflected in may other judicial observations. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock said that irrationality, which he equated with Wednesbury unreasonableness, applied to a decision (at 410):

"which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at".

Lord Diplock was concerned to establish or confirm rationality as an independent ground of judicial review, so that his comments are not necessarily to be read as intended to limit the scope of that ground. See also Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 82; (1993) 41 FCR 117 (FCA/Einfeld J), at 140.

Be that as it may, there is other powerful support for the proposition that great care should be taken before applying the Wednesbury unreasonableness ground of judicial review. In Attorney-General for New South Wales v Quin (1990) 170 CLR 1, at 36, Brennan J characterised the ground as "extremely confined" and emphasised that courts must resist the temptation to draw the bounds of legal reasonableness too tightly, merely according to their own opinions. He cited the observation of Professor Wade (Administrative Law (6th ed. 1988), at 407) that courts

"must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislation is presumed to have intended."

His Honour added this observation (at 37):

"If the courts were to assume a jurisdiction to review administrative acts or decisions which are 'unfair' in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ".

See also Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 (FCA/Lehane J) at 303- 304.

Despite the manifestations of judicial caution, Gummow J has discerned a greater willingness in recent times to grant review of administrative decisions on the unreasonableness ground: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139; (1990) 96 ALR 153 (FCA/Gummow J) at 166. In Luu v Renevier (1989) 91 ALR 39 (FCA/FC), one of the examples cited by Gummow J, the Court concluded as follows (at 50):

"One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision- maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained."

Apart from Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, to which Gummow J also referred, other cases support the suggestion that a more generous view has been taken of the ground: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 (FCA/FC), at 197-199, per Black CJ (applying Luu v Renevier); Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 (FCA/FC) (allocation of catch quotas was "capricious and irrational" as it was based on a statistical fallacy); Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 (FCA/Burchett J) (factual conclusions so at variance with the material before the decision-maker as to be unreasonable). In Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 (FCA/FC), Sheppard J expressed (at 87) a preference for a test of unreasonableness which used less "vehement and extreme" language than that employed by Lord Diplock in CCSU v Minister, although his Honour did not put forward an alternative formulation.

The unreasonableness ground has been invoked by Australian courts sufficiently often that it is difficult to regard the ground as available only in the very rarest of cases. Even so, it is necessary to bear in mind the cautionary principles stated in the High Court, reflecting the importance (in Brennan J's phrase) of the courts not placing their own "legitimacy at risk": Quin, at 38. In the present case, the World Heritage Act entrusted the Minister with the authority to grant consents to acts prescribed for the purposes of s.9(1) or specified in s.10(2). The Minister was, of course, bound to apply the criteria laid down by the Act and otherwise to act lawfully. I deal elsewhere with the challenges to the legality of the consents on grounds other than unreasonableness. But it is not lightly to be concluded that he acted so unreasonably that no reasonable person could have granted the consents.

Mr Tobias based the applicant's argument on the Minister's acceptance that the dredging of the marina access channel could have an adverse impact on the seagrasses in the proclaimed area and would lead to increased boating in the area, as well as leading to visits by larger numbers of people. The Minister acknowledged that the activities to which he was granting consent created a risk of death and injury to marine animals, including dugongs and turtles. He also acknowledged, more generally, a risk of pollution in an area with fragile eco- systems. Mr Tobias contended that it was manifestly unreasonable for the Minister to rely on the deed and the MOU (which contemplated the preparation and implementation of a regional management plan under State law) as adequately addressing the identified potential adverse impacts.

Mr Tobias put forward a number of criticisms of the proposed management regime. First, the MOU did not purport to create legally enforceable rights and obligations between the Commonwealth and Queensland. The management committee was merely to use "its best endeavours to implement a process to put in place" interim management arrangements and a final management plan. Interim arrangements were dependent upon a "demonstrated need". Secondly, there was no assurance or requirement that interim arrangements would be agreed to or that a plan would come into force before the resort was operational. Thirdly, the Minister had effectively entrusted the preparation and implementation of interim and final arrangements for a plan to Queensland, taking the matter out of the hands of the Commonwealth. Further, the Minister was relying on Queensland to provide the resources and expertise to enforce any managements that might ultimately be put in place. Fourthly, it was unrealistic for the Commonwealth to suggest (as the Minister did when releasing the key documents) that if the regional planning process did not deliver the required protection for World Heritage values, the Minister would use all powers open to him to protect those values in the Hinchinbrook area. By that time, according to Mr Tobias, the pressures to allow a substantial commercial development to proceed would be irresistible. Finally, the deed only created contractual rights and obligations. It did not, for example, allow the Commonwealth to take steps directly against third parties whose actions might threaten World Heritage values.

As I have said, ss.9 and 13 of the World Heritage Act conferred upon the Minister the task of determining whether granting consent to the relevant acts was consistent with the protection, conservation and presentation of the proclaimed area. It is true that the Act does not make the granting of consents depend upon the Minister forming a particular "opinion" or being "satisfied" as to a particular state of affairs: compare Minister v Wu at 272-277; Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484, at 518. Even so, it is the Minister, and not the Court, who is responsible for determining whether, in the circumstances of the case, the statutory criteria for the grant of consents have been satisfied. So, too, with the grant of consents under s.10 of the World Heritage Act, bearing in mind that the restrictions imposed by s.13 do not apply to a decision under s.10.

Mr Tobias ultimately accepted that the Minister could take into account management arrangements in place under State law when determining whether a consent pursuant to s.9 is consistent with the protection and conservation of a proclaimed area. I think that this concession was well founded. Following Tasmanian Dams and subsequent authorities, it is clear that the Commonwealth has constitutional power to legislate in order to give effect to Australia's treaty obligations. But this does not mean that, before granting a consent under s.9 of the World Heritage Act, the Minister must ensure that "protective arrangements" designed to prevent damage to World Heritage values in the proclaimed area (see para. 38 of the Minister's reasons) are in place under Commonwealth law. Similarly, I do not think that in considering whether or not to grant consent under s.10, the Minister is limited to taking account of protective arrangements in force under Commonwealth law.

It must be remembered that, at the time Parliament enacted the World Heritage Act, there was considerable uncertainty as to the scope of the Commonwealth's powers to give effect to Australia's international treaty commitments. As the Second Reading Speech confirms, it was contemplated that State and Territory law would play an important part in protecting Australia's heritage:

"Given a commitment by a State Government to heritage protection and an awareness by the State of the international importance of such protection, the Commonwealth Government would foresee no need to exercise its own powers. This Bill is to provide a means of protection of last resort. Its provisions are to be invoked when it appears that other means are not available or are inadequate or unsuitable to meet a threat of damage or destruction to heritage property. It is the Government's intention that the procedures under the Bill would not be resorted to if effective action can and will be taken under State or Territory law. It follows that there would normally be consultation with the State or Territory."

Parl. Deb., HR, 21 April 1983, at 52 (the Hon B Cohen). The World Heritage Act itself provides for a State to be informed of proposed consents under ss.9 and 10, in relation to property situated in that State, and to have the opportunity to make representations: see s.13(3). This suggest that the legislation contemplated co- operative arrangements between the Commonwealth and the States and Territories and that the exercise of Commonwealth powers would pay regard to State or Territory law.

The fundamental criticism made by Mr Tobias of the Minister's decision was that at the time the Minister granted the consents, the proposed protective arrangements had not been implemented by State law. It is quite true that different decision-makers might have formed different views as to the effectiveness of the arrangements embodied in the deed and the MOU. Some might well have regarded the proposed process as too uncertain to justify concluding that the arrangements rendered insignificant any risk of damage to World Heritage values in the proclaimed area. That, however, is not the question. The issue is whether the Minister's conclusion, that the arrangements would have this effect and that the granting of consent under s.9 of the World Heritage Act was consistent with the protection and conservation of the relevant portions of Hinchinbrook Channel, was so unreasonable that no reasonable person could have come to that conclusion.

It was not suggested that the arrangements incorporated in the MOU were entered into otherwise than in good faith. Certainly, it was not unreasonable for the Minister to act on the basis that, whatever the legal status of the MOU, Queensland would work diligently and in good faith towards achieving the objectives of the interim arrangements and final plan specified in cl. 2.1. As Windeyer J observed in South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130, at 154- 155, the fact that an inter-Governmental agreement does not give rise to legally enforceable obligations does not mean that it "is merely a scrap of paper". Undertakings to which the law cannot give its aid do not "all lack weight or meaning". Similarly, it was not unreasonable for the Minister to act on the basis that the process would effectively address the values specified in cl.2.2 of the MOU. It may be - although the evidence did not deal with the point directly - that the Minister's approach to the establishment of a regulatory regime was influenced by views as to the appropriate sharing of responsibility between the Commonwealth and States for the protection of World Heritage values that not all decision-makers would necessarily adopt. But the legislation entrusts the relevant decisions to a Minister who might be expected to give effect to a judgment on precisely this question. The fact that other decision-makers might have chosen to defer the granting of consent until a management regime was already in place does not demonstrate that the determination made by the Minister in this case was so unreasonable that no reasonable person would have so exercised the power.

The criticisms made by Mr Tobias of the processes put in place by the MOU and the deed might be thought to have some force. But it was not suggested that the Minister failed to appreciate, for example, that a deed does not have the same legal effect as conditions imposed under a valid planning law or that the MOU of itself did not necessarily ensure that a final management plan would come into place by the time the resort was operational. The Minister stated, when releasing key documents in the planning process, that if the regional planning process did not deliver the required protection for World Heritage values, he would use all powers available to him to protect those values in the Hinchinbrook area including the Channel. Mr Tobias expressed scepticism about whether this residual power would be exercised, but there is nothing in the evidence to suggest that the Minister's statement should be taken otherwise than at face value. The Minister's residual power, and his expressed willingness to exercise it, was a factor for him to consider in determining whether the statutory criteria for the giving of consents had been fulfilled.

Mr Tobias pointed out that the advice given to the Minister in July 1996 suggested that, prior to providing consents, the Minister might "wish to be assured by the Queensland Government" that they would introduce management plans including, "if necessary", establishing speed limits for all boats and designating habitat zones from which boats would be excluded. Mr Tobias also pointed out that the MOU did not amount to an assurance that the Queensland Government would take these steps. Nevertheless, the Minister found (para.35 of the reasons) that the development and implementation of the proposed regional plan would adequately address the potential impacts of the increased boating, including the greater risk of death and injury to dugongs. This finding took account of the nature and limitations of the process set in train by the MOU and the fact that the Queensland Government had not unequivocally undertaken to introduce the measures suggested (if necessary) in the advice to the Minister. The finding clearly reflected the Minister's view that the process was likely to produce satisfactory outcomes and that, in any event, the reserve power was available should his confidence in the process prove to be misplaced. As I have already said, the fact that other decision-makers might not have adopted the same view does not demonstrate that the Minister's determination was unreasonable.

The management arrangements embodied in both the deed and the MOU were the product of protracted negotiations and discussions, in the course of which the AHC and others made extensive representations to the Minister. The deed imposed extensive and detailed obligations on Cardwell Properties, including a requirement that its proposed activities in regional, national or marine parks which might result in new or significantly increased impact or visitations had to be consistent with the conservation, protection and presentation of World Heritage properties (cl.19.2). The deed also gave the Commonwealth, as well as Cardwell Shire Council and the State of Queensland, the right to enter the development site for a variety of purposes, including inspecting the site, making good any breach of the company's obligations and exercising the Commonwealth's rights under the deed (cl.26.1). It is true that the deed did not incorporate some of the proposals put forward by the AHC in its submission to the Minister. But the AHC did not suggest that reliance upon the deed as a means of protecting World Heritage values was an approach doomed to failure.

This is not a case where the Minister acted in disregard or breach of all the available evidence or advice (compare Fuduche v Minister) or in a manner that was demonstrably irrational (compare Minister v Austral Fisheries). Different decision-makers may have reached different conclusions about the adequacy of the arrangements embodied in the deed and the MOU to protect and preserve World Heritage values from the threats identified by the Minister. In my opinion, however, the applicant has not made out its case that the Minister's grant of consents under ss. 9 and 10 of the World Heritage Act were unreasonable in the sense required by s.5(2)(g) of the ADJR Act.

Deferral of Relevant Questions

The second argument put forward by the applicant is very closely related to the first. It rests on the proposition that the Minister was obliged, when giving consents under ss. 9 and 10 of the World Heritage Act, to take into account all considerations relevant to his determination and not to defer critical issues for later consideration. In effect, so Mr Tobias submitted, the Minister postponed the question of whether restrictions should be imposed on the activities of Cardwell Properties and on visitors to the area until preparation and implementation of management plans under Queensland legislation.

The applicant cited a number of authorities in support of this submission. Mr Tobias placed greatest reliance on Parramatta City Council v Hale (1982) 47 LGRA 319 (NSWCA). In that case, the majority (Street CJ and Moffitt P, Reynolds JA dissenting) held that the Council had failed to take into account matters it was obliged to consider on a development application, pursuant to s.90 of the Environmental Planning and Assessment Act (NSW). Parramatta v Hale was, however, a very different case to the present.

The key circumstance in Parramatta v Hale was that the Council resolved at a special meeting, by a majority of nine to eight, to grant development consent to an application for the use of land within Parramatta Park for a stadium, with a seating capacity of 40,000 spectators. In granting consent, the Council substituted brief conditions relating, inter alia, to parking facilities and pedestrian access for very detailed conditions proposed by the Council's chief town planner. The substituted conditions were proposed for the first time at the meeting and dissenting councillors, so it was found, had little opportunity to compare the competing sets of conditions. A motion to obtain further information on the effect of the proposed substituted conditions was defeated. Street CJ characterised (at 327, 332) some of the substituted conditions as "vacuous". For example, in place of comprehensive stipulations for the construction of pedestrian accessways, the Council resolution simply substituted a requirement that the applicant discuss with the city engineer and the trustees "means of providing improved pedestrian access to the stadium".

Moffitt P (at 343-344) made the following observations:

"As the requirement is of consideration of relevant s.90(1) matters in making the determination, the authority will not discharge that obligation if it adopts the attitude that it will grant the consent and will defer consideration of the environmental matters, including how likely harm may be mitigated, until later or for consideration by others. The legislative policy is to require, as a condition of the validity of the decision, that the environmental questions be taken into consideration at the time the development is approved. Although no requirement or restraint is imposed as to the decision to be come to upon taking the matters into consideration, the very requirement of contemporaneity in s.90(1) shows some expectation, as commonsense and a sound exercise of discretion under s.91(1) taken with s.90(1) will usually dictate, that such decisions as are to be taken to protect the environment or to mitigate the likely harm to it, will be taken concurrently with the decision to approve the development.

Of course it would be possible, to take into consideration the means of minimising harm to the environment, by taking no present step to or toward the adoption of means to mitigate, leaving this open to be done in the future by some voluntary act of the developer or in consequence of some later agreement hoped to be negotiated with or extracted from the developer. Again it may be possible, in the face of obvious environmental harm and means of minimising it, that nevertheless such matters had been considered and a wise or unwise decision come to not to do anything at the time by way of condition to enforce the means to minimise the harm. As before, there may be such a degree of unreasonableness in such a determination that it will go to support an inference that the means of minimising harm was not considered in granting a consent and not at the same time dealing with the relevant s.90(1) matter. Thus where there are means of mitigating obvious and serious harm of a particular class to the environment and the authority consents to a development, so a structure of enormous proportion can be commenced and completed free of any precondition and it is left to the future to work out the problems of mitigation of the harm by some agreement with the developer or by the developer with others, which of course leaves open the willingness of such persons to agree and the terms on which they will agree, support of some substance will be provided for an inference, particularly if assisted by other circumstances, that, although the authority may have adverted to the way the harm might be mitigated, it did not take it into consideration in its decision to consent without any relevant condition to mitigate the harm."

These observations recognise that the absence of conditions addressing a particular environmental impact does not necessarily lead to the conclusion that the decision-maker has failed to consider that impact, or that the issue has been improperly deferred for later determination.

In the present case, the Minister applied the criteria he was required to take into account by the World Heritage Act at the time he made his determination. One of the factors he took into account was the process, set in train by the MOU, for the preparation and implementation of management plans. While that process had not been completed at the time the Minister gave his consents, unlike Parramatta v Hale, critical issues were not simply left unresolved by "vacuous" conditions. The Minister specifically found that the environmental impacts flowing from the consents would be insignificant having regard, inter alia, to the process established by the MOU. As I have already said, the Minister was clearly well aware that the management plan contemplated by the MOU had not been implemented, but he nonetheless concluded that the giving of consents was consistent with the criteria laid down by the World Heritage Act. None of the factors identified in Parramatta v Hale as demonstrating that the Council had not taken into account the relevant statutory criteria was present in this case.

I should add that the other authorities cited by the applicant do not seem to me of particular assistance on this aspect of the case. See Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (NSWCA); Scott v Wollongong City Council (1992) 75 LGRA 112 (NSWCA).

State Arrangements

The third argument put by the applicant was also closely related to the first. It was said that the Minister was not entitled to take into account arrangements that might be put into place under State law, when deciding whether or not to give consents under ss.9 or 10 of the World Heritage Act. It was also said that the Minister was bound to take into account Australia's obligations under the Convention and that these did not permit the Minister to take account of the provisions of a State law or scheme in determining whether or not to give consent. It was to "abrogate" or "relinquish" the obligations of the Commonwealth under the Convention for the Minister to rely on the Queensland Government to ameliorate potentially adverse effects on the proclaimed area by the acts to which the Minister gave his consent. Reliance was evidenced by the terms of the MOU and of the deed, both of which envisaged that the Queensland Government would take action in order to protect the proclaimed area.

Section 13(1) of the World Heritage Act specifically provides that, in determining whether or not to give a consent pursuant to s.9(1), the Minister is to have regard "only to the protection, conservation and presentation, within the meaning of the Convention, of the property". I have already indicated that, in the course of argument, Mr Tobias accepted - in my view correctly - that the Minister could take into account management arrangements under State law in determining whether the giving of consent to prescribed acts under s.9(1) is consistent with the protection and conservation of the proclaimed area. I see no reason why the Minister may not also take into account arrangements adopted or proposed to be adopted by a State, whether in the form of legislation or otherwise, that is designed to advance the protection and conservation of the relevant area. The weight to be accorded any such arrangements will no doubt depend upon the nature of the proposals and the safeguards they are likely to provide for the area. But I do not think that the World Heritage Act limits the Minister's consideration to protective measures in force under Commonwealth law.

In view of the mandatory language of s.13(1), it is not clear that there is any room for the Minister to take into account the terms of the Convention, except to the extent contemplated by s.13(1) itself. In any event, it must be remembered that the language of the Convention is heavily qualified. It is true that a majority of the High Court in Tasmanian Dams rejected the view that arts. 3, 4 and 5 of the Convention amounted to no more than a statement of general political accord; rather, they imposed obligations upon Australia: Richardson v Forestry Commission, at 289. By art.4 each State Party recognised that the duty of ensuring the identification, protection, conservation and presentation of the natural heritage situated in its territory belongs primarily to it. The second sentence of art.4 provides that the State "will do all it can to this end, to the utmost of its own resources". Article 5 states that, to ensure that effective and active measures are taken for the protection conservation and presentation of the heritage, each State Party

"shall endeavour, in so far as possible, and as appropriate for each country:

...

(d) to take the appropriate legal [and administrative]...measures for the identification, protection [and] conservation of the heritage". [Emphasis added.]

This language, while sufficient to impose obligations under international law, in my opinion cannot be read as imposing an obligation on the Commonwealth itself to take all the appropriate legal and administrative measures. Nor is any other conclusion suggested by art.34, which provides that State Parties with a federal system have the same obligations in relation to the Convention as do State Parties with a unitary constitutional system. The position was summarised by Mason CJ and Brennan J in Richardson v Forestry Commission, at 289-290:

"The terms of Art.3, together with the second sentence of Art.4 and the qualifications in the opening words of Art.5 are entirely consistent with the acknowledgment of State sovereignty in Art.6 and with the recognition that each State, in giving effect to the obligations imposed by the Convention, with respect to the heritage situated on its territory will naturally have to take account of competing considerations, economic and otherwise. Thus though each State has a duty to identify and delineate the heritage in its territory, the performance of this duty will depend in many respects on the judgment of that State."

In short, it is open, under the Convention, for Australia to discharge its obligations by ensuring that appropriate legal and administrative measures are taken to protect and conserve the natural heritage, whether those measures are implemented under Commonwealth or State laws or administrative arrangements or a combination of both.

The exercise of the Minister's powers under s.10 of the World Heritage Act is not confined by the criteria specified in s.13(1) of the Act. As with the Minister's powers under s.9(1) of the Act, it seems to me that in the exercise of the powers under s.10, the Minister may take into account existing or proposed arrangements under State law or to which the State is a party, if they relate to property to which s.10 applies. For the reasons I have given, I do not think that the Convention, as a matter of construction, imposes obligations on the Commonwealth itself to enact all legislation or take all other measures necessary to protect and conserve the nation's natural heritage. It is enough that the Commonwealth ensures that the appropriate legal and administrative measures, necessary for the protection and conservation of the nation's heritage, are taken. It follows that the fact that the Minister, in exercising his powers under s.10, took account of arrangements to be effected under State law or with the co-operation of the Government of Queensland does not indicate that he failed to have regard to the terms of the Convention.

Mr Tobias relied on s.12 of the World Heritage Act as dealing exhaustively with the relevance of State laws in the discharge of the Commonwealth's duties under the Convention and the Act. He submitted that the Act permitted State laws or schemes to operate, but only if the regulations specifically declare such a law or scheme to be applicable in relation to a particular property. Section 12 of the Act provides that acts authorised under a declared State law or scheme are not rendered unlawful by the prohibitions (inter alia) in ss.9 or 10 of the Act. In other words, s.12 exempts certain acts from the prohibitions contained in ss.9 and 10, independently of the Minister giving or refusing consents to those or other acts under ss.9 or 10 of the Act. In my opinion, there is no basis for reading s.12 as impliedly preventing the Minister from taking account of State laws or schemes in determining whether or not to give consents under ss.9 or 10. State laws or schemes may be relevant for reasons other than the fact that they authorise particular acts. They may be relevant, for example, because they prohibit acts or impose restrictive conditions in conduct that otherwise would be lawful. I therefore do not think that s.12 supports the applicant's construction of the World Heritage Act.

Conditional Consent

The applicant submitted that the Minister had erred by giving consents under ss.9 and 10 of the World Heritage Act on the basis of contractual commitments made by Cardwell Properties, as distinct from imposing conditions on the consents. The steps in the argument were the following:

(i) The Minister was advised by his Departmental officers that protective measures could not be implemented by means of conditional consents. It should be inferred that the Minister acted upon that advice.

(ii) The advice was wrong. On its proper construction, the World Heritage Act permits the Minister to give consents upon conditions.

(iii) Because the Minister was wrongly advised, he failed, when making his decision, to take into account a relevant consideration, namely, his power to give consents subject to conditions. That failure led him to accept a weaker regime than he would or might otherwise have done, thereby limiting the Commonwealth to contractual remedies against Cardwell Properties and its successors (assuming the successors entered into the arrangements contemplated by the deed).

The Commonwealth and Queensland disputed each of those steps.

I think that, on the evidence, the first step in the applicant's argument is correct. The minutes of a two day meeting held on 16-17 July 1996, at which a number of Departmental officers were in attendance, record that the Minister was inclined to give consents "but needs comfort on certain issues that are not yet resolved to his satisfaction". The notes also record the following:

"Minister can give or refuse consents. Can't put conditions on them".

There was no other evidence as to the advice given to the Minister. Nor was there evidence to explain why the Minister chose contractual terms rather than conditions imposed on the consents. The statement of reasons does not address these issues. In the absence of any other evidence, it seems to me that an inference must be drawn that the Minister received and acted upon the advice recorded in the minutes of the meeting of 16-17 July 1996. Compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 65-66, per Brennan J.

I do not, however, accept the second step in the applicant's argument. Mr Tobias referred to a line of authority in the High Court establishing the general proposition that, if power is given to make a by-law for the purpose of "prohibiting" an activity, the power will, in the absence of a contrary indication, enable the making of a by-law prohibiting the activity either absolutely or subject to a condition: Foley v Padley [1984] HCA 50; (1983) 154 CLR 349, at 358- 359, per Gibbs CJ; at 380-383, per Dawson J; The Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126, at 134-135; per Knox CJ, Starke and Dixon JJ. These authorities explicitly recognise that, in the end, the question of construction will depend on the statutory language: see Country Roads Board v Neale, at 135; Foley v Padley, at 358.

In my view, the initial question is whether, as a matter of construction, the Minister's power to give consents under ss.9 and 10 authorises the Minister to give consent subject to conditions of the kind incorporated in the deed. I do not think that this question is resolved by the general proposition established by the High Court decisions. Unlike those authorities, the World Heritage Act does not confer on the Minister a power to prohibit particular activities by subordinate legislation. The Governor-General is empowered to declare by proclamation that s.9 applies to property which is being or is likely to be damaged or destroyed: s.6(3). The Governor-General may prescribe acts for the purpose of s.9: ss.9(1), 21(1)(a). Where an act is prescribed, as occurred in the present case with the making of reg.3F, s.9(1) makes it unlawful, except with the written consent of the Minister, to do that act. The prohibition is thus imposed by s. 9(1) itself rather than by subordinate legislation. The prohibition imposed by s.10(2) applies to the acts specified in that subsection, although the prohibition is attracted by a declaration, pursuant to s.7, that particular property is subject to s.10.

In my opinion, a number of factors point to the conclusion that neither s.9 nor s.10 of the World Heritage Act confers power on the Minister to grant consents subject to conditions. These factors are the following:

* Neither s.9 nor s.10 expressly confers such a power on the Minister. Had such a power been intended, it would have been easy to include it in the legislation.

* The World Heritage Act provides no explicit mechanism for enforcement of any conditions attached to a consent. It is true, as Mr Tobias pointed out, that the Court has jurisdiction under s.14(1) to grant an injunction restraining a person from "doing an act that is unlawful by virtue of" ss.9 or 10. But the act that is unlawful by virtue of s.9 is the prescribed act. The act that is unlawful by virtue of s.10 is any act specified in s.10(2)(d)-(m). The language used in s.14(1) is not apt to deal with an infringement of a condition attached to the grant of consent.

* The World Heritage Act addresses the scope of a consent given pursuant to s.9 or s.10, but does not suggest that a conditional consent can be given. Section 13(2) provides that a consent may relate to a particular act or acts, or a particular class or classes of acts. Had Parliament intended the Minister to have power to grant conditional consents, it might have been expected that s. 13 would have addressed the issue.

* Other provisions in the World Heritage Act appear to be framed on the basis that the Minister's power is either to give or refuse consent. Thus, the notice required by s. 13(4) must state "that the consent has or has not been given" and must "set out particulars of the act or acts to which the consent or the refusal to give the consent relates". Had a power to impose conditions been intended, it is curious, to say the least, that the notice required by s.13(4) need not include particulars of any conditions attached to the consents. See also s.13(3).

It is not surprising to find that the World Heritage Act does not provide for conditional consents. As Mr Hilton pointed out, the constitutional basis for the legislation prior to Tasmanian Dams was uncertain and a power to impose conditions on the consents would have exacerbated the constitutional uncertainty. The construction I have adopted is also consistent with the Minister having essentially a "means of protection of last resort", as the extract from the Second Reading Speech quoted earlier suggests. See also Mason J's reference to the "Minister's power of veto": Tasmanian Dams, at 146.

In view of this conclusion, I do not find it necessary to consider the third limb of the applicant's argument. In my opinion, no error of law has been shown by reason of the Minister acting on advice that he had no power to impose conditions on the consents granted under ss.9 and 10 of the World Heritage Act.

Mr Tobias put forward an alternative argument in the event that I concluded (as I have) that the Minister did not err by acting on advice that he could not give conditional consents. He contended that the Minister could not impose conditions "collaterally", by means of the deed. To do so amounted to an indirect attempt to do that which could not be done directly, namely, to impose conditions upon the consents.

This submission was not developed. It was therefore not made clear why the consequence of the argument, assuming it to be well-founded, was that the consents were liable to be set aside, as distinct from the "collateral" conditions being held invalid. In any event, I do not think the argument is sound.

The consents given by the Minister were not subject to any express conditions. There is no doubt that the execution of the deed of variation played an important part in the Minister's decision to give the consents. On 9 July 1996, the Minister agreed with the Secretary's recommendation that a decision should not be made on Cardwell Properties' application until he was satisfied, inter alia, that a deed had been entered into between Cardwell Properties and the Commonwealth covering such matters as best practice dredging and stabilisation of the foreshore. Nonetheless, at the time the consents were given by the Minister, the deed of variation had already been executed.

The deed, as varied, was enforceable by and against the parties to it on general law principles. As Mr Tobias pointed out when making his principal submissions, the legal effect of the deed was not the same as giving consents subject to conditions. Indeed, the gravamen of Mr Tobias' principal submission was that the Minister had incorrectly denied himself the opportunity to impose conditions on the consents.

The Minister, as he foreshadowed in July 1996, took into account the terms of the deed when giving the consents on 22 August 1996. The deed enabled him to be satisfied, inter alia, that the risk of damage to the World Heritage values of the proclaimed area was insignificant. But this does not mean that the deed of variation, already in place at the time the consents were given, was transferred into a condition, or series of conditions, ultra vires the World Heritage Act. If Cardwell Properties were to breach its obligations under the deed the Commonwealth would presumably have remedies under the deed, but the consents would not be affected. Nor could the remedies available under s. 14 of the World Heritage Act be invoked for breaches of the deed. In these circumstances, in my view, it cannot be said that the deed of variation amounted to an impermissible attempt to attach conditions to the giving of the consents.

Landscaping

The applicant contended that the Minister misdirected himself by failing to consider whether the presentation of the proclaimed area could be adversely affected by the buildings or structures proximate to that area. According to the applicant, the buildings to be erected on the development site would derogate from the World Heritage values of the proclaimed area. It was therefore necessary under s.13(1) of the World Heritage Act for the Minister to address the need for landscaping of the resort site, so as to minimise or eliminate that impact. Similarly, the applicant contended that the structures to be erected on the resort site would adversely affect the scenic features of nearby places on the Register of the National Estate. Section 3D(1) of the AHC Act required the Minister to consider the need for landscaping as a means of minimising the adverse effect on nearby National Estate areas. It will be seen that, although the applicant's written submissions suggested that this issue arose under s.30(1) of the AHC Act, the argument also invoked the provisions of the World Heritage Act.

At one stage in the argument, Mr Tobias seemed to suggest that the Minister had not given any consideration at all to the impact of the proposed resort on the scenic and wilderness values of the proclaimed area. This suggestion apparently flowed from the response of the DEST to a recommendation by the AHC that the deed should incorporate a provision requiring the landscaping of the Port Hinchinbrook development. The DEST did not support the recommendation, on the ground that the "scenic value is in Hinchinbrook Island and not the present site".

In fact, the uncontradicted evidence shows that the Minister did consider the impact of the resort on the aesthetic features of the proclaimed area. In the course of giving reasons for his decision under s.9(1) of the World Heritage Act, the Minister said this:

"37. To the extent that aesthetic features constitute a World Heritage value of the proclaimed area, and to the extent that the establishment of the resort itself might impact on such aesthetic features, I found that such impact would be insignificant, having regard to:

(a) the already degraded condition of the resort site;

(b) the previous extensive clearing of mangroves; and

(c) the restrictions imposed by the Deed on the height of the resort buildings.

I noted that the concerns had been raised about the need for landscaping of the resort site. I expected that this aspect would be adequately handled by the Queensland Government."

Similar conclusions were expressed in relation to the decision under s.10(1) of the World Heritage Act: para.51.

I do not think it is necessary to decide whether, or in what circumstances, the appearance of a place outside a proclaimed area affects the "presentation" of that area for the purposes of s.13(1) of the World Heritage Act: compare Tasmanian Dams, at 224, per Brennan J. Nor is it necessary to determine whether, or in what circumstances, the appearance of a place outside an area within a place within the National Estate adversely affects the National Estate, for the purposes of s.30(1) of the AHC Act. The fact is that the Minister did take into account the impact of the Port Hinchinbrook development on the aesthetic features of the proclaimed area and formed the view that the impact would be "insignificant". While this was expressed as a conclusion in relation to the World Heritage Act question, the conclusion was equally relevant to the issues said to arise under the AHC Act.

I do not think that the Minister's statement that he expected the landscaping of the resort to be adequately handled by the Queensland Government should be read as an assertion that landscaping was simply irrelevant to the questions to be decided. On the contrary, the Minister's expectation that this aspect could be handled by the Queensland Government reflected his view that any impact of the resort on World Heritage values of the proclaimed area would be insignificant. Accordingly, I think that this ground of attack on the Minister's decision fails.

Section 30 of the AHC Act and s.9 of the World Heritage Act

As the Minister's reasons show, he considered whether giving consents under s.10 of the World Heritage Act would have an adverse effect on the National Estate areas in the vicinity of the Port Hinchinbrook development. He also considered whether he could be satisfied of the matters specified in s.30(1) of the AHC Act, recognising that he had to be so satisfied before giving consent under s.10 of the World Heritage Act. However, the Minister did not consider separately the effect on the National Estate areas of giving consents under s.9 of the World Heritage Act. The applicant submitted that, by omitting to undertake the exercise in relation to the consents under s.9 of the World Heritage Act, the Minister erred.

The applicant's argument seems to assume that a failure by the Minister to comply with the directions in s.30(1) of the AHC Act vitiates consents granted by him under the World Heritage Act. It also assumes that the applicant has standing to challenge the validity of consents under the World Heritage Act, not by reason of a breach of that Act (for which standing is confined by s.14 of the World Heritage Act), but by reason of a breach of s.30(1) of the AHC Act. Each of these assumptions appears to be inconsistent with the reasoning of members of the Full Court in Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 (FCA/FC).

In that case, Lockhart J held (at 78) that s.30(1) of the AHC Act imposes a "public duty and is not owed to any particular person or persons". His Honour also pointed out (at 79) that the assertion of public rights and the prevention of public wrongs are the responsibility of the Attorney-General, proceeding either ex officio or at the relation of a private individual. Morling J expressed similar views (at 87-88). Pincus J expressly held (at 90-95) that, even if the Minister had breached s.30 of the AHC Act, the breach did not invalidate the relevant decision, which was the revocation of an order prohibiting acquisition of a particular property. His Honour posed the question this way (at 91-92):

"Looking at s.30 broadly, it is seen to be a provision controlling, in important respects, the procedure to be adopted within the national government when dealing with matters involving the national estate. The question is whether a licence or contract which is given or made by the Commonwealth in breach of s.30 is invalidated against the citizen, innocent of the breach, who has been granted the licence or with whom the contract has been made."

He answered that question in the negative.

Even if the breach of s.30(1) of the AHC Act could invalidate or lead to the setting aside of the consents under the World Heritage Act, other difficulties remain in the applicant's path. Section 30(1) of the AHC Act, the terms of which have been set out earlier, requires each Minister to give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him or her to ensure that the Department or authority does not take action that adversely affects, as part of the National Estate, a place that is in the Register, unless the Minister is satisfied of certain matters. Those matters are that

* there is no feasible and prudent alternative to the taking of the action; and

* all measures that can be reasonably be taken to minimise the adverse effect will be taken (see AHC Act, s.30(2)).

In addition, before the Minister takes any action that might significantly affect a place in the National Estate, the AHC must be informed of the proposed action and given an opportunity to comment: AHC Act, s.30(3).

The Minister specifically addressed the matters referred to in s.30 of the AHC Act in his reasons. He accepted the view of the AHC that giving consent to the proposed actions under s.10 of the World Heritage Act might adversely affect the three listed National Estate areas (the Cardwell Range-Herbert River Gorge area; the Wet Tropical Forest and the Great Barrier Reef region) (para.65). He also accepted the view of the AHC that, unless appropriate protective measures and management arrangements were put in place, the giving of consents under s.10 of the World Heritage Act could have certain adverse affects on National Estate values (para.66).

The Minister found that there were alternatives to the giving of consent. These were (para.68):

"(a) to refuse consent to the proposed actions;

(b) to refuse consent to the proposed dredging, thereby preventing the establishment of a marina; or

(c) to refuse consent to one or more of the proposed actions unless Cardwell agreed to reduce the size of the resort below the proposed 1500 beds."

He also found that, if consent was refused or if the size of the resort were reduced below the proposed 1,500 beds, Cardwell Properties would not proceed with the project. The Minister further found that the establishment of the resort would bring significant economic benefit to the region and that these would be lost if the resort did not proceed (para.70). Accordingly, he concluded that none of the alternative courses of action was feasible or prudent (para.71). Finally, the Minister found that the protective measures provided for in the revised beach and foreshore management plan and the deed as varied would minimise the adverse affects on the National Estate values in the immediate vicinity of the proposed resort (para.74).

In my view, s.30(1) of the AHC Act does not apply to a decision by the Minister to give or refuse consent to a prescribed act, pursuant to s.9 of the World Heritage Act. Section 13(1) of the World Heritage Act, which of course was enacted after the AHC Act, states that the Minister shall have regard only to the protection, conservation and presentation of the property to which s.9 of the World Heritage Act applies. It is clear - indeed it was common ground in this case - that s.13(1) does not permit the Minister to have regard to social and economic values in determining whether to give a consent under s.9(1) of the World Heritage Act. It would also seem clear that s.30(1) of the AHC Act does permit economic considerations to be taken into account by the Minister in determining whether he or she is satisfied of the matter specified in the sub-section. Mr Tobias did not suggest, for example, that it was not open to the Minister to take into account the economic and commercial benefits of the proposed resort, when determining whether any of the alternative courses of action was feasible or prudent.

In these circumstances, I do not think it is consistent with ss.9(1) and 13(1) of the World Heritage Act for the statutory duty imposed on the Minister by s.30(1) of the AHC Act to apply to a decision by the Minister to grant or refuse consent under s.9(1) of the World Heritage Act. The World Heritage Act applies to property that has been proclaimed because the Governor-General is satisfied under s.6(3) of the Act that the property is likely to be damaged or destroyed. Any prescribed act in relation to that property is unlawful, except with the Minister's consent. In giving or refusing consent the only matters that the Minister may take into account are the "protection, conservation and presentation, within the meaning of the Convention, of the property". If s.30(1) of the AHC Act were to apply to the decision under s.9(1) of the World Heritage Act, the Minister would be required to have regard to considerations that s.13(1) does not permit to be taken into account in the making of the decision under s.9(1) of the World Heritage Act. The criteria specified in ss.9(1) and 13(1) of the World Heritage Act are, if anything, more protective of the environmental integrity of the proclaimed property than the criteria specified in s.30 of the AHC Act. It seems to me, therefore, that the Minister cannot be required by s.30(1) of the AHC Act, consistently with the terms of ss.9(1) and 13(1) of the World Heritage Act, to give directions in relation to property to which s.9 of the World Heritage Act applies. It follows that s.30(1) of the AHC Act (which only imposes a duty "consistently with other laws") does not apply to the Minister's consideration of whether consent should be given under s.9(1) of the World Heritage Act.

In any event, I find it hard to see how, even if s.30(1) of the AHC Act applied to the decision under s.9(1) of the World Heritage Act, this could have led the Minister in the present case to reach a different conclusion. The consents under ss.9 and 10 of the World Heritage Act, insofar as they relate to the proposed dredging of the channel, for practical purposes cover the same activities. If the Minister were to consider the matters specified in s.30(1) of the AHC Act in relation to the giving of consent under s.9(1) of the World Heritage Act, it is inevitable that he would reach the same conclusion as in relation to the giving of consent under s.10 of the World Heritage Act. In other words, he would be addressing precisely the same issues as those he has already addressed and referred to in his statement of reasons.

Section 9 Consents and Social and Economic Values

The starting point for this submission by the applicant was the proposition, which was common ground among the parties, that s.13(1) of the World Heritage Act prevented the Minister from having regard to social and economic values in deciding to give consents under s.9(1) of the Act. The only considerations to which he could lawfully have regard were the protection, conservation and presentation of the proclaimed area. The applicant submitted that, in deciding to give consents under s.9(1), the Minister had in fact taken into account social and economic values. This followed from the Terms of Reference for the regional coastal management plan, attached to the MOU, which expressly included among the values which had to be addressed "social and economic values".

Some further background is helpful in relation to this submission. On 11 June 1996, Mr Toyne of DEST wrote to his Queensland counterpart expressing the Commonwealth's keenness to

"help progress and facilitate management planning for the Hinchinbrook region, particularly to ensure that the Great Barrier Reef's World Heritage values are protected."

The letter expressed the Commonwealth's preference for a management plan covering the Hinchinbrook region, including Hinchinbrook Island and Channel, two islands near Hinchinbrook Island and the adjacent coastal strip. The letter suggested broad objectives for the plan which, with minor changes, were later adopted in cl. 2.1 of the MOU. It also formulated the values which needed to be addressed in the plan in terms adopted in cl.2.2 of the MOU.

On 13 June 1996, the Acting Director-General of the Queensland Department of Environment replied. The reply accepted the "planning process" outlined in Mr Toyne's letter, but noted that the details of the process would have to comply with Queensland legislation. The reply included the following paragraph.

"The values and activities to be addressed in the plan are agreed in principle provided that the list of values be amended to include social and economic values and the level of detail assigned to each of these will be an issue for the steering committee. In particular, I note that it is impractical to specifically consider existing harbour and port operations. Existing environmental management plans being prepared for each port should provide adequate detail in this regard."

Following this correspondence, the draft Terms of Reference for the Cardwell/Hinchinbrook regional coastal management plan incorporated a reference to "social and economic values". The Terms of Reference attached to the MOU incorporated the same reference.

The applicant's argument, at first glance, is attractive. If the Minister was foreclosed from having regard to social and economic values in giving consent under s.9(1) of the World Heritage Act, how could he place reliance on the proposed regional management plan as a means of overcoming the potential adverse impacts upon the proclaimed area, given that the Terms of Reference included social and economic values?

On closer analysis, I do not think this argument is persuasive. The Minister specifically stated (para.39 of his reasons) that in determining whether to give consents under s.9(1) of the Act he had regard only to the protection, conservation and presentation of the proclaimed area. One of the factors he had to take into account (as he said he had) was the proposed regional plan, including the statement of values which had to be addressed in formulating the plan. The conclusion he reached, expressed in para.41 of his reasons, was that the potential impacts would be limited and ameliorated by the protective measures provided for in the revised Beach and Foreshore Management Plan, the deed and the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation of the proclaimed area to give the consents sought.

In reaching this conclusion, the Minister had to weigh up a number of considerations. In assessing the significance of the proposed regional plan for the protection, conservation and presentation of the proclaimed area he had to take into account the fact that the values to be addressed in the plan included social and economic values. Doubtless this created a risk that the regional plan, as ultimately implemented, would not solely reflect World Heritage values. But the Minister was also entitled to take into account the terms of the deed, which (as the statement of reasons indicates) provided for steps to minimise the impacts in the proclaimed area in Hinchinbrook Channel of dredging the marina access channel and of actions relating to the mangroves. He was also entitled to take into account that the proposed regional plan was not confined to the proclaimed area of Hinchinbrook Channel, but included islands and areas of the mainland. Thus, the inclusion of social and economic values in the Terms of Reference did not necessarily mean that those values would be reflected in the plan as it applied to or affected the proclaimed area. See also cl.3.3 of the MOU.

In my view, the inclusion of social and economic values in the Terms of Reference does not imply that the Minister took into account social and economic values in giving the consents under s.9 of the World Heritage Act. There is no basis for concluding that the Minister did anything other than what he said he did, namely, apply the criteria specified in s.13(1) of the Act.

Decisions Under ss.9 and 10 of the World Heritage Act

The applicant advanced a separate submission that, despite the Minister's assertion in his statement of reasons that he had not taken into account social and economic factors when giving consents under s.9 of the World Heritage Act, it should be inferred that he had in fact done so. It was said that it was wholly unrealistic for the Minister to purport to take into account social and economic factors when making a decision under s.10 of the Act, but to profess to ignore those matters when making a decision under s.9. The consents related to the same activities at the same locations and the terms of the consents were identical. It was therefore artificial to suggest that in practice a distinction was drawn between the two sets of decisions.

No doubt the reasons given by a decision-maker are not necessarily conclusive of all the factors taken into account in making a decision. In Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 55 FLR 180 (FCA/Toohey J), Toohey J summarised the approach to be taken as follows (at 184):

"In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was."

See also Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (FCA/Sheppard J), at 13-15; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1994) 34 ALD 169 (FCA/Burchett J), at 178-179.

In this case, I see no reason to conclude that the Minister did not do what he said he did. The advice given to him, especially on 14 August 1996, was precise in its insistence that he could consider, in relation to the decision under s.9, only the evidence relevant to the protection, conservation and presentation of the World Heritage property. The advice made it clear that social and economic impacts could be considered under s.10, but not under s.9. The Minister's statement of reasons reflect the advice given to him. The reasons contain a detailed explanation of the Minister's reasoning process that is consistent with him having applied different criteria in making the decisions under ss.9 and 10, respectively. The mere fact that the Minister ultimately decided to give consents under both sections does not demonstrate, or even suggest, that he failed to understand or apply correctly the approach which he had earlier formulated.

Mr Tobias referred to other factors suggesting that the Minister wrongly considered social and economic factors when giving consents under s.9. In my opinion, none of them supports the applicant's contentions. For example, it was said that the giving of consents to the coppicing of the mangroves demonstrates that the Minister took account of the developer's economic interests and concessions made by the developer on such matters as the height of the development. As I have said, the question facing the Minister was whether the giving of the consents was consistent with the protection, conservation and presentation of the proclaimed area on Hinchinbrook Channel. The Minister formed the view that the consents were consistent with these values. The fact that other decision-makers might well have reached a different conclusion does not show that the Minister, notwithstanding his unequivocal statements to the contrary, took into account the developer's commercial interests or the concessions previously made. In my opinion, a consideration of the reasons for the decision, the advice given to the Minister and the documentary evidence does not warrant a finding that the Minister did not accurately record the reasoning process that led to the giving of the consents.

The Precautionary Principle

The applicant submitted that the Minister failed to have regard to a relevant consideration, namely, the "precautionary principle", when dealing with the sensitive heritage and environmental issues presented by Cardwell Properties' applications. Mr Tobias accepted that neither the World Heritage Act nor the Convention referred to the precautionary principle, but it had been enshrined in the 1992 Inter-Governmental Agreement on the Environment, to which the Commonwealth, the States, the Northern Territory and the Australian Local Government Association were parties. He contended that, in the light of the scope and purpose of the World Heritage Act, the Minister was bound to have regard to the precautionary principle when exercising powers under that Act. He also submitted that it should be inferred from the absence of any mention of the precautionary principle in the Minister's reasons that he failed to take it into account in making his decision.

As Stein J pointed out in Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 (NSW LEC), at 281-282, the precautionary principle has been referred to since the 1970s, but has only recently received international endorsement. Commentators have noted that the principle has been formulated in different ways in international agreements and that there is not yet an international consensus on the principle: P W Birnie and A E Boyle, International Law and the Environment (1992), at 97-98. The 1992 Convention on Biological Diversity, which Australia has ratified, states the principle as follows:

"...where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat."

The 1992 Intergovernmental Agreement on the Environment employs an expanded formulation (para.3.51):

"In the application of the precautionary principle public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii) an assessment of the risk weighed consequences of various options."

In Leatch v NPWS, Stein J (at 212) commented that

"the precautionary principle is a statement of commonsense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious."

I do not think that the precautionary principle in the form adopted by the 1992 Intergovernmental Agreement (nine years after the enactment of the World Heritage Act), is a relevant consideration that the Minister is bound to take into account in exercising the powers conferred by the World Heritage Act. There is nothing to suggest that in 1983 any particular formulation of the precautionary principle commanded international approval, let alone endorsement by the Parliament. It may be that the "commonsense principle" identified by Stein J is one to which the Minister must have regard. But this would flow from the proper construction of the relevant legislation and of its scope and purpose, rather than the adoption by representatives of Australian governments of policies and objectives relevant to a national strategy on the environment: compare Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397 (NSW LEC/Talbot J), at 419. It would be difficult, for example, for the Minister to have regard only to the protection, conservation and presentation of particular property, as required by s.13(1) of the World Heritage Act, unless he or she takes account of the prospect of serious and irreversible harm to the property in circumstances where scientific opinion is uncertain or in conflict.

To the extent that the Minister was required to take account of the need to exercise caution on the fact of scientific uncertainty, in my opinion he did so. There was a great deal of scientific material available to the Minister assessing the risks of the activities requiring Ministerial consent, much of which was summarised in a report by Dr R Reichelt of the Australian Institute of Marine Science. The Minister had before him a good deal of material suggesting a "cautious" approach to the exercise of power under the World Heritage Act. The advice provided to the Minister in July 1996 stated that, in considering whether each activity for which consent was sought was consistent with the protection, conservation and presentation of the proclaimed area, he was "entitled to be cautious". The Minister also had available the previous Minister's reasons, given on 15 September 1995, which explicitly stated that the "Precautionary Principle...suggests a cautious approach be adopted" where it cannot be concluded with certainty whether or not World Heritage values will be damaged. The AHC had argued that the uncertainty of the long term impacts of dredging "strengthen[ed] the case for a precautionary approach".

It is true that the Minister did not expressly refer to the precautionary principle or some variation of it, in his reasons. But it is equally clear that before making a final decision, he took steps to put in place arrangements designed to address the matters of concern identified in the scientific reports and other material available to him. The implementation of these arrangements, through the amended deed and the MOU, indicate that the Minister accepted that he should act cautiously in assessing and addressing the risks to World Heritage values. This is not to say that the Minister's assessment would be endorsed by all who made submissions and provided advice; clearly it would not. But he took into account the commonsense principle that caution should be exercised where scientific opinion is divided or scientific information is incomplete.

Unreasonableness and s.30 of the AHC Act

The applicant submitted that the Minister had acted unreasonably in expressing himself satisfied that there was no feasible and prudent alternative to granting the consents and that all measures that could reasonably be taken to minimise the adverse effect on the National Estate would be taken. It was submitted, without elaboration, that the Minister could and should have required Cardwell Properties to submit a documented economic appraisal of the viability of the alternative options. Further, the Minister should not have relied on the "bare assertions" of Cardwell Properties that it would not proceed with the project if the sale were reduced to fewer than 1,500 beds. It followed that he had failed to give genuine consideration to the alternatives.

I have already referred to the flaw in the assumption that a breach of s.30(1) of the AHC Act would vitiate the consents granted by the Minister. In any event, as Davies J observed in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, at 76, the question of what was a prudent and feasible alternative, was a matter of value judgment and that judgment was reposed in the Minister. See also Minister for Immigration v Wu, at 493-494; Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 (FCA/FC), at 679-680. The Minister was entitled, although not bound, to accept the assertions made by Cardwell Properties as to the minimum requirements that had to be met before the proposed resort would proceed. This was not a case where the Minister was bound to make further inquiries to ascertain that he had been told about Cardwell Properties' intentions was accurate or otherwise: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, at 321, per McHugh J. As far as the evidence shows, information provided was plausible and there was nothing to suggest that it was false or misleading.

V. CONCLUSION

In my opinion, none of the grounds advanced for challenging the Minister's decision to give consents under the World Heritage Act has been made out. Accordingly, the application should be dismissed. Subject to any submissions to the contrary, there would seem to be no need for further orders, since the undertakings given will expire once judgment is given. I shall give the parties the opportunity to make submissions on costs.

I certify that this and the preceding 103 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 14 February, 1997

Heard: 16 December, 1996

Place: Sydney

Decision: 14 February, 1997

Appearances: Mr M.H. Tobias QC and Dr J. Griffiths, instructed by the Environmental Defender's Office, appeared for the applicant.

Mr J.S. Hilton SC and Mr I.D. Faulkner, instructed by the Australian Government Solicitor, appeared for the first respondent.

Mr S.M. Gorry, Solicitor of Henry Davis York, agent for Hopgood & Ganim, appeared for the second respondent.

Ms D.A. Mullins and Mr E.K. Christie, instructed by the Crown Solicitor for the State of Queensland, appeared for the third respondent.