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Federal Court of Australia - Full Court Decisions |
Last Updated: 11 February 2005
FEDERAL COURT OF
AUSTRALIA
Mees v David Kemp in his capacity as
Minister for the Environment
and Heritage [2005] FCAFC
5
ADMINISTRATIVE LAW – judicial review – reasons for decision
– Administrative Decisions (Judicial Review) Act 1977 (Cth) -
sufficiency of reasons – whether reasons incomplete – whether time
for filing application began to run –
discretionary refusal to extend time
unchallenged – statutory provision for reconsideration of impugned
decision – contingent
upon satisfaction of availability of substantial new
information – requirements of state of satisfaction – whether
information
– whether new
ENVIRONMENT LAW –
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
– referral of proposed action – decision that proposed action not
controlled action – reasons for decision
– adequacy – freeway
project – no reference to likelihood of consequential decision to
construct additional link
– no reference to Minister’s view that
likelihood of consequential decision irrelevant – whether reasons
misleading
– reconsideration of decision – requirement for
satisfaction of substantial new information – satisfaction of Minister
– whether information – whether new
WORDS AND PHRASES
– ‘information’
Environment Protection and Biodiversity Conservation Act 1999
(Cth) s 3, s 523, s 67, s 68, s 75, s 78
Administrative Decisions
(Judicial Review) Act 1977 (Cth) s 11, s 13, s 3(1)
Acts
Interpretation Act 1901 (Cth) s 25D
Shorter Oxford English
Dictionary, 5th Edition OUP 2002
Mees v Roads
Corporation [2003] FCA 306 cited
Mees v Roads Corporation [2003] FCA 410 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR
344 cited
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
cited
Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 cited
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177
ALR 491 cited
ARM Constructions Pty Ltd v Commissioner of Taxation
(1986) 10 FCR 197 cited
Australian Institute of Marine and Power Engineers
v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 cited
Ansett
Transport Industries (Operations) Ltd v Secretary, Department of Aviation
(1987) 73 ALR 193 cited
Minister for Immigration and Ethnic Affairs v
Taveli [1990] FCA 169; (1990) 23 FCR 162 cited
Queensland Conservation Council Inc v
Minister for the Environment and Heritage [2003] FCA 1463
cited
Minister for the Environment and Heritage v Queensland Conservation
Council Inc [2004] FCAFC 190 cited
WA Pines Pty Ltd v Bannerman [1980] FCA 79;
(1980) 41 FLR 175 cited
Goldie v The Commonwealth [2002] FCA 433; (2002) 117 FCR 566
cited
Lobo v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 168; (2003) 132 FCR 93 cited
Minister for Immigration and Ethnic
Affairs v Wu Shan Ling [1996] HCA 6; (1996) 185 CLR 259 cited
Minister for
Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
cited
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17;
(2001) 205 CLR 507
cited
PAUL
ANDREW MEES v DAVID KEMP in his capacity as Minister for the Environment and
Heritage and SOUTHERN AND EASTERN INTEGRATED TRANSPORT
AUTHORITY
V 641
OF 2004
FRENCH, MERKEL and FINKELSTEIN JJ
11
FEBRUARY 2005
MELBOURNE
|
PAUL ANDREW MEES
APPELLANT (Applicant) |
|
|
AND:
|
DAVID KEMP in his capacity as Minister for the Environment and
Heritage
FIRST RESPONDENT SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY SECOND RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
MELBOURNE
|
THE COURT ORDERS THAT:
1. The time limited for filing the
notice of appeal is extended to 21 May 2004.
2. The appeal be dismissed.
3. The appellant pay the respondents’ costs of the
appeal.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
|
AND:
|
DAVID KEMP in his capacity as MINISTER FOR THE ENVIRONMENT AND HERITAGE
FIRST RESPONDENT SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY SECOND RESPONDENT |
REASONS FOR JUDGMENT
THE COURT
Introduction:
1 In February 2002, the Commonwealth Minister for the Environment and Heritage was asked by the State of Victoria to determine whether two sections of a proposed new freeway known as the Scoresby Freeway, required approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The proposals were formally referred to the Minister who determined that one of them was not a ‘controlled action’ within the meaning of the EPBC Act and did not require approval. This was on the basis that the project would be unlikely to have adverse impacts on listed animal and plant species protected under Pt 3 of the EPBC Act. The other section of the proposed freeway was determined to be a ‘controlled action’.
2 The appellant, who is a university lecturer and who was President of the Public Transport Users Association, was concerned that the determination that the northern section of the proposed freeway was not a ‘controlled action’ did not reflect the real likelihood that once the two sections of the freeway were constructed the Government of Victoria would, at some future date, construct an additional section which would have adverse impacts on various protected species of plants and animals.
3 In the light of findings made by Gray J in 2003 in earlier litigation relating to the project the appellant asked the Minister to reconsider his decision on the basis that there was available substantial new information about the impact of the proposed action on various plants and animals protected under the EPBC Act. The new information relied upon was a finding by Gray J that a further freeway link was likely to be undertaken as a result of the construction of the northern section which was the subject of the Minister’s original decision. The Minister declined to reconsider his original decision. He did so on the basis that there was no substantial new information. The existence of such information was a necessary condition of his power to revoke the original decision.
4 In response to a request from the appellant the Minister had, in 2002, provided reasons for his original decision. He mentioned in those reasons that he had taken account of public submissions including those made by the appellant. In a letter sent to the appellant in May 2003, following the request for reconsideration, the Minister referred to his view, not expressed in the earlier reasons for decision, that the environmental impacts of a future freeway link were not relevant impacts of the proposed northern section of the Scoresby Freeway.
5 In June 2003, the appellant commenced proceedings seeking judicial review of the original decision of the Minister and also of his failure to reconsider and revoke that decision. Weinberg J dismissed his application. He did so on the basis that the appellant was out of time to bring an application for review in relation to the first decision having regard to the provisions of s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The section, in substance, requires that an application for an order of review be commenced within 28 days after the provision of reasons for the decision unless time is extended by the Court. Over a year had elapsed between the Minister providing his reasons for decision and the commencement of the proceedings. His Honour declined to extend time. He also refused the application for review of the Minister’s refusal to reconsider the original decision. He did this on the basis that the findings of Gray J in the earlier litigation did not constitute ‘substantial new information’ enlivening the Minister’s power to revoke his earlier decision.
6 The appellant contends that the present proceedings were commenced within time as the Minister’s reasons were incomplete and did not comply with s 13 of the ADJR Act. He did not challenge the refusal by his Honour to extend time but maintained that no extension was necessary as no reasons complying with the Act had been delivered. The appellant also contended that his Honour erred in holding that the findings made by Gray J in the earlier litigation did not amount to ‘substantial new information’.
7 For the reasons which follow, none of these grounds succeeds and the appeal will be dismissed with costs.
Factual and Procedural History
8 On 19 February 2002, the State of Victoria made two referrals to the Commonwealth Minister for the Environment and Heritage pursuant to the EPBC Act. The referrals related to two sections of the proposed Scoresby Freeway. The referral directly relevant to these proceedings concerned the proposed construction, operation and maintenance of a freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood to the interchange with the Monash Freeway in Dandenong North. The proposal, described as a ‘road upgrade’, involved the creation of about 15 kilometres of a new freeway. It was to be a six-lane freeway with an additional one or two auxiliary lanes in some sections and bicycle/pedestrian pathways within or adjacent to the freeway reserve.
9 The referral was made pursuant to s 68 of the EPBC Act for a decision by the Minister on whether the proposed work was a ‘controlled action’ within the meaning of s 67. A ‘controlled action’ is one which would require approval under Pt 9 of the EPBC Act. In deciding whether the proposed work was a controlled action the Minister was required to consider all adverse impacts (if any) the action had or would have or would be likely to have on matters protected by the provisions of Pt 3 of the EPBC Act. These ‘matters’ include World and National Heritage Properties, wetlands of international importance, listed threatened species and communities and listed migratory species.
10 The Minister sought comments from Commonwealth and State Ministers and from the public on the question whether the proposed action was a ‘controlled action’. He received a number of submissions from members of the public including a submission from the appellant dated 27 February 2002. The appellant is a lecturer in the Faculty of Architecture, Building and Planning at the University of Melbourne and was at the time of his submission President of the Public Transport Users Association.
11 In his submission the appellant observed that the public name of the Scoresby Freeway was the ‘Eastern Ring Road (Scoresby Section)’, a name which appeared on signs erected by Vicroads along the freeway reservation and in the current Melway Street Directory. He saw this as giving rise to two questions. If the Scoresby Freeway was only a section of the Eastern Ring Road, where was the remainder? Why had that fact not been disclosed in the referral? He mentioned a meeting which he had attended in October 2001 of a Community Reference Group for the Melbourne Metropolitan Strategy at the Department of Infrastructure. He said that the meeting was held in a room used for seminars about the Strategy which had maps on the walls showing elements of the Strategy. One of those maps showed a link from the Scoresby Freeway to the Metropolitan Ring Road which appeared to go through Bulleen and the Banyule Flats. He contended that the Victorian Government planned to construct such a link but feared a community backlash about it and was therefore keeping quiet about its plans. He asserted that the intention was to build the Scoresby Freeway creating a ring road with a ‘hole’ in the middle ensuring that the final link was a fait accompli.
12 The appellant submitted that the preferred route for the final link would affect Bolin Bolin Billabong at Bulleen and Banyule Flats at Heidelberg. Bolin Bolin is a site for River Swamp Wallaby Grass listed as a threatened plant species in the vulnerable category under the EPBC Act. Banyule Flats is a site for two plant species also listed as threatened in the vulnerable category. The Flats were also said to be a habitat for four migratory bird species listed under International Treaties and protected under the EPBC Act. The appellant submitted:
‘The effects of the whole ring road project must be assessed. As the first of the Principles of ecologically sustainable development listed in s 3A of the EPBC Act states: "decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations".’
13 On 21 March 2002, Gerard Early, the First Assistant Secretary of the Approvals and Wildlife Division of the Department of the Environment and Heritage (Cth), sent a minute to the Minister which stated, inter alia:
‘Many of the public submissions also argued that the Scoresby Freeway project would facilitate the future construction of a link between Greensborough (the present terminus of the Northern Ring Road) and the Eastern Freeway via Heidelberg, to complete the Melbourne Ring Road ... and that this would adversely affect the important habitat areas.
When deciding, under section 75 of the EPBC Act, whether a referred action is a controlled action, you are required to consider all adverse impacts that the referred action has, will have, or is likely to have on the matter protected by each provision of Part 3. In this context, it is not open to you to take into account the potential impacts of actions that might possibly be taken at some future time, and might in some way be related to, or facilitated by, the referred action – such as, in this case the hypothetical Greensborough-Eastern Freeway link. If the Victorian Government were at some future point to propose construction of such a link, that proposal would need to be separately referred and considered under the EPBC Act.’
14 On 21 March 2002, the Minister decided that the proposed action in relation to the northern section was not a ‘controlled action’ within the meaning of the EPBC Act. The text of the decision was thus:
‘DECISION THAT ACTION IS NOT A CONTROLLED ACTION
Pursuant to section 75 of the Environment Protection and Biodiversity Conservation Act 1999, I, DAVID ALASTAIR KEMP, Minister for the Environment and Heritage, decide that the proposed action, set out in the Schedule, is not a controlled action.
SCHEDULE
The proposed action by the Victorian Government to construct, operate and maintain the Scoresby Freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood (City of Maroondah) to the interchange with the Monash Freeway in Dandenong North (City of Greater Dandenong), and as described in the referral received under the Act on 21 February 2002 (EPBC 2002/580).
Dated this 21st day of March 2002
David Kemp
Minister for the Environment and Heritage’
On
the same day the Minister decided that the proposed action in relation to the
southern section was a ‘controlled action’
and would require
approval.
15 The Director of the Referrals Section of the Department of the Environment and Heritage sent a letter to the appellant on 25 March 2002 advising him of the Minister’s decision. He also advised him of the Minister’s decision about the proposed action to construct the southern section.
16 On 16 April 2002, the appellant sent a letter to the Minister requesting reasons for each of the decisions pursuant to s 13 of the ADJR Act. The Minister responded on 29 May 2002 with a letter attaching the reasons for decision. In the reasons for decision the Minister set out the relevant provisions of the EPBC Act, being ss 68, 74 and 75. He described the proposed action in the terms set out in the referral from the Victorian Government. The evidence upon which he relied, and which he identified in the reasons, comprised the brief from the Department of the Environment and Heritage dated 21 March 2002 which included the referral, an Assessment of the proposed Scoresby Freeway in relation to Commonwealth and State biodiversity legislation dated February 2002, advice from his Department concerning the potential impacts of the action on matters protected under the EPBC Act and copies of public comments. Other documents referred to included assessments of environment effects and hydrological and water quality impacts.
17 The Minister identified listed threatened animal and plant species known to occur in the vicinity of the proposed area. He referred in particular to the plant known as Dwarf Galaxias and found that it could be affected by changes to water quality and hydrology. However he also found that the freeway would be constructed using sediment controls outlined in the Victorian Environment Protection Authority Guidelines and that any discharge into the waterways would meet State Environment Protection Policy for water quality. He found that a significant impact on the Dwarf Galaxias was unlikely. He referred to the bird species known as the Swift Parrot and the Regent Honeyeater known to occur along the relevant road reservation. No habitat critical to their survival was known to occur along the reservation. Because the native vegetation of the freeway road reservation had been substantially modified there were no suitable habitats for other threatened species being the Southern Brown Bandicoot, the Spot-tailed Quoll, the Southern Bell Frog, the Australian Grayling and the Yarra Pygmy Perch. The proposed action was therefore unlikely to have a significant impact on these species.
18 The Minister considered the impact of the proposal on migratory species and found that the road reservation was not known to contain any important habitat for any migratory species listed under the EPBC Act. He concluded (at pars 19 and 20) of his reasons for decision:
‘19. In light of my finding that the proposed action is not likely to have a significant impact on listed threatened species or listed migratory species, I found that the proposed action is not a controlled action.
20. In making the decision, I took account of comments received from the public. I also took account of the precautionary principle.’
19 On 26 October 2001, the appellant had commenced proceedings in the Federal Court against the Roads Corporation, a Victorian statutory authority, and Mr Peter Batchelor, the Minister for Transport of the State of Victoria. The relief sought in the application was an injunction under s 475 of the EPBC Act restraining the respondents from taking any further action relating to the construction of the Scoresby Freeway or Eastern Ring Road. The original basis for the application was that the environmental effects of the freeway and any link between it and the end of the Western Ring Road at Greensborough were such as to require the decision of the Commonwealth Minister for the Environment as to whether approval should be given for the project pursuant to Pt 7 of the EPBC Act. The application was evidently commenced on the assumption that the project was not going to be referred to the Minister. This assumption was falsified by the State’s referral of the project to the Minister in February 2002.
20 On 4 March 2002, the appellant was granted leave to file an amended application and add the State of Victoria as a respondent. The basis upon which the application was then put was that the respondents had provided misleading information in relation to the construction of the freeway and that they should be restrained from further disseminating such information and from taking any further action relating to the project until such time as the misleading information had been corrected. The amended application was filed on 6 March 2002. It was heard by Gray J on 29, 30 and 31 October 2002. On 8 April 2003, his Honour gave judgment – Mees v Roads Corporation [2003] FCA 306. He rejected a contention by the appellant that there was a secret plan or intention on the part of the respondents to build a freeway link between the Eastern Freeway and its interchange with Bulleen Road and the Metropolitan Ring Road at Greensborough. He was, however, of the view that the referral of the proposal for the northern section of the Scoresby Freeway was misleading in one respect. He said:
‘It failed to inform the Environment Minister of the strong chance that a freeway link would be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough, as a consequence of the building of the northern section of the Scoresby Freeway.’
His Honour accepted that it might be that the Minister was able to discern the truth because of the obvious gap and the obvious inadequacy of an incomplete Ring Road. It may be that he was in fact fully informed. Certainly the appellant had taken steps to inform him that it was likely that a Bulleen Freeway link would be developed and of its environmental significance. His Honour said:
‘These facts, however, cannot have a bearing on the question whether the document itself was misleading.’
The characterisation of the referral as misleading was the resolution of a preliminary issue determined by his Honour. The question of what, if any, relief should be awarded, was stood over. On 23 April 2003, after hearing submissions on the question of relief, his Honour ordered that the application be dismissed and that the appellant pay the respondent’s costs of the proceedings on and after 17 April 2003 – Mees v Roads Corporation [2003] FCA 410.
21 On 2 May 2003, the appellant wrote to the Minister referring to the judgment of Gray J given on 8 April 2003 and enclosing a copy of the reasons. He said in his letter that a week after the judgment was given the Victorian Government announced that a freeway would be built as a toll road and that construction would not commence until 2004. On this basis the appellant had decided not to pursue his original application for an injunction, which was accordingly dismissed by the Court. He had applied for a declaration but that had been declined. He said in his letter:
‘In my submission, the effect of the Court’s decision which is summarised most succinctly in paragraph 118, is to activate your power under section 78 of the EPBC Act to reconsider your 2002 decision that the northern section of the freeway (referral no 2002/580) was not a controlled action. The new information required pursuant to s 78(1)(a) has been provided by the Court’s finding that the proponents provided you with misleading information by not disclosing the high likelihood of the freeway causing the construction of a further road through Bulleen and Heidelberg. This road would affect endangered species and migratory birds. (See Dr Buxton’s Affidavit for details)’
22 The Minister responded to the appellant’s letter on 7 May 2003. In his response he said:
‘The traffic assessment reports, on which the Court finding that the referral was misleading in one respect was based, were available to me at the time of my decision that the northern section of the Scoresby Freeway was not a controlled action. I have been aware of the possibility of the future need for a freeway link as a consequence of the Scoresby Freeway and have considered concerns about this matter when making decisions about the Scoresby Freeway.
As such the Court findings, and your submissions in relation to the Court proceedings, do not provide a basis for reconsideration, as they are not substantial new information. Further, in my view the environmental impacts of a future freeway link are not relevant impacts of the northern section of the Scoresby Freeway.
I note that the Victorian Government has clearly stated that there is no plan to build a freeway link at this time. If in the future the Victorian Government decides to build a freeway link that is likely to affect matters of national environmental significance, I would expect the proposal to be referred under the EPBC Act for a decision on whether environmental assessment and approval is required.
I would also like to take this opportunity to advise you that I have granted approval, subject to conditions, for the southern section of the Scoresby Freeway, following a rigorous assessment and approval process under the EPBC Act. A copy of the approval and conditions is attached for your information.’
23 On 10 June 2003, the appellant filed the application under which the present proceedings were instituted. He sought review under the ADJR Act of the Minister’s decision of 21 March 2002 that the proposed construction of the northern section of the freeway was not a ‘controlled action’. The appellant also sought review of the Minister’s ‘decision’ on 7 May 2003 which he characterised as ‘a decision not to reconsider the substantive decision’. In each case the ground upon which the appellant claimed that the decision should be set aside was as follows:
‘The Minister failed to take into account a relevant consideration, namely, the "strong chance" that a freeway link will be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough (an Eastern Freeway-Greensborough link), as a consequence of the building of the action proposed in the northern section referral.’
The Minister filed an objection to the competency of the application on 14 July 2003. The basis of the objection was that the decision made on 7 May 2003 was not a decision under the EPBC Act.
24 The application came on for hearing before Weinberg J on 17 February 2004 and on 31 March 2004 his Honour dismissed the application, upheld the objection as to competency and gave directions for the filing and serving of written submissions on costs on or before 23 April 2004. On 3 May 2004, his Honour made further orders requiring the appellant to pay 50% of the Minister’s costs of and incidental to the substantive application.
25 On 1 June 2004, the appellant filed an application for an extension of time to file and serve a notice of appeal against the judgment of Weinberg J. The proposed notice of appeal had been filed on 21 May 2004. When the appeal came on for hearing, the extension of time was granted and argument proceeded on the merits of the appeal. Although, as appears below, his Honour dismissed the application on the basis that it was brought outside the time limited by the ADJR Act and although there might be some argument therefore that the orders made by his Honour were interlocutory, the parties were content to treat them as final. On the basis that the judgment below was final, which would seem to have been correct, no leave to appeal was required. Had it been required it would have been granted as the practical effect of the judgment below was finally to dispose of the appellant’s claim for relief.
Reasons for Judgment of the Primary Judge
26 In his reasons for judgment the learned primary judge set out the factual and procedural background leading up to the application under the ADJR Act. He identified the substantive decision as that made by the Minister on 21 March 2002 that the proposed action by the Victorian Government to construct, operate and maintain the northern section of the Scoresby Freeway was not a ‘controlled action’. His Honour also referred to the statement of reasons which were provided by the Minister on 29 May 2002 under s 13 of the ADJR Act and observed:
‘In schedule (sic) to the statement of reasons, the Minister referred specifically to the applicant’s submission. However, the Minister made no reference whatever in those reasons to the possibility of an Eastern Freeway-Greensborough link being built. Notwithstanding that fact, the applicant took no steps, at that stage, to challenge the substantive decision. His explanation for his inaction is contained in an affidavit sworn 30 June 2003, in which he said at par 6:
"The respondent’s reasons made no reference to the submission I made about the Bulleen-Heidelberg Freeway. I believed at the time that this was because the respondent had no capacity under the EPBC Act to investigate the truth of my allegations about the issue."’
27 His Honour then referred to the second decision notified to the appellant on 7 May 2003 in which the Minister concluded that the Court findings and the appellant’s submissions in relation to them did not provide a basis for reconsideration as they were not ‘substantial new information’.
28 The learned primary judge referred to submissions made by the appellant identifying the critical issue in the case as the advice given by the Department to the Minister on 21 March 2002 that it was not open to the Minister to consider the secondary or indirect effects of a referred proposal when carrying out his duties under s 75. The appellant contended that the advice was incorrect and that the Minister was obliged to consider such effects subject to commonsense standards of remoteness and relevance.
29 His Honour referred to Australian and overseas authorities relied upon by the appellant to support his contention that the Minister was required to consider direct and indirect effects of the proposed actions.
30 The appellant faced the difficulty, before his Honour, that he had instituted the proceedings on 10 June 2003. The Minister had given his reasons for decision on 29 May 2002. The relevant time limit for bringing proceedings under the ADJR Act was before the expiry of 28 days after the provision of reasons under s 13. The appellant argued that the statement of reasons did not disclose the true basis upon which the Minister made his substantive decision and so did not comply with the requirements of s 13. He claimed that at the time he read the reasons he had not appreciated that the Minister had disregarded his submission and ignored the secondary effects that the proposed action would bring about. He said that he did not discover that the Minister had approached the matter in this way until he received the Minister’s letter of 7 May 2003. He said he had assumed when he read the statement of reasons that the Minister had given consideration to the secondary effects but had decided on the facts that the weight to be accorded to them did not warrant the conclusion that the proposed action was a ‘controlled action’. On this basis, he submitted, that the relevant reasons for the substantive decision were not provided until 7 May 2003 and that the application before Weinberg J had therefore been brought within the 28 day time limit. In the alternative the appellant submitted to his Honour that time should be extended pursuant to s 11(1)(c) of the ADJR Act. He relied upon essentially the same matters as he advanced in support of the argument that time had not commenced to run at all until 7 May 2003.
31 His Honour rejected the appellant’s primary submission that the statement of reasons provided by the Minister in May 2002 was defective. His Honour said:
‘Anyone reading that statement would immediately appreciate that it said nothing about any possible future freeway link, or the secondary effects that might eventuate from such a link.’
He found the appellant to be a highly intelligent, articulate and well-informed proponent of environmental protection. The quality of his written and oral submissions demonstrated that he had a comprehensive awareness of the operation of the EPBC Act and the general principles governing environmental assessments and approvals. His Honour said:
‘In my opinion, any person of reasonable intelligence would have appreciated, upon reading the Minister’s statement of reasons, that when making his substantive decision the Minister had not taken into account the possibility that an Eastern Freeway-Greensborough link might eventually be built, and that such a link might result in harm to the environment.’
32 His Honour considered whether the appellant should be granted an extension of time. He referred to the principles governing applications for extensions of time set out in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and in particular the following propositions:
1. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is fair and equitable in the circumstances to extend time.
2. Action taken by the applicant, other than making an application for review, is relevant to determining whether an acceptable explanation for the delay has been furnished.
3. Prejudice to the respondent including prejudice in defending proceedings occasioned by delay is a material factor militating against the grant of an extension.
4. The mere absence of prejudice is not enough to justify the grant of an extension. Public considerations often intrude.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion.
His Honour referred to other cases in which the principles have been applied and also to their qualification by the Full Court in Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441. There the Court referred to the proposition that it is a pre-condition for success in an application to extend time that an acceptable explanation for the delay must be given. The Court said (at 444):
‘Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition.’
His Honour referred also to Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 and Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491. He then said:
‘Applying to the present case the principles laid down in Hunter Valley (as modified by Comcare v A’Hearn), I am satisfied that the application for an extension of time should be refused. The delay of almost twelve months is, in my view, inordinate and inadequately explained. The applicant, having been provided with the Minister’s statement of reasons on 29 May 2002, elected not to challenge that decision. The fact that he may have been labouring under a misapprehension as to why the Minister had not referred specifically to his earlier submission may explain, but does not justify, the delay that then resulted. It was not until more than a year later that he instituted this proceeding, claiming that time did not begin to run until 7 May 2003 when he first appreciated that he had been mistaken. As noted earlier, the second respondent described that claim as "disingenuous". I would not, myself, use such language. It is sufficient for me to say, as I have done, that the applicant’s contention cannot be accepted.’
33 His Honour went on to consider the merits of the case. These turned upon the question whether Gray J’s findings could be used in some way to vitiate the decision made by the Minister in 2002. His Honour saw a real question as to whether a finding of such a nature made in proceedings to which the Minister was not a party, and in which he was not represented, could be so used. Even assuming that they could be, his Honour was not persuaded that the merits of the case warranted the grant of an extension of time. He considered the possible construction of an Eastern Freeway-Greensborough link to fall within the concept of a hypothetical possibility. In any case he said there was an important difference between conjecture as to whether a proposed action was ‘likely’ to endanger a particular threatened species but a far greater conjecture involved in considering whether a proposed action might, in turn, lead to some other action, which might in turn ultimately have that effect.
34 His Honour then moved to the final issue raised in the application that the Minister’s decision not to reconsider the first decision involved jurisdictional error. His Honour observed that the decision impugned was described as a decision not to reconsider the first decision. As the respondents had submitted however, the Minister did not make any decision in those terms. He simply concluded that there was no ‘substantial new information’ upon which he could act pursuant to s 78 of the EPBC Act. His Honour held that the Minister did not decide that he would not reconsider the first decision. He decided instead that he could not reconsider that decision because a prerequisite to the exercise of his power to do so was not met. If there were no ‘substantial new information’ then there was no scope for the Minister to reconsider his earlier decision. The appellant was either correct in his contention that the prerequisite was met or he was not.
35 His Honour referred to what Gray J said and observed that none of the material upon which Gray J based his observations was in any relevant sense ‘new’. The Traffic Assessment Reports to which Gray J had referred were all available to the Minister at the time he made the substantive decision. It was difficult to see how a judge’s conclusion, however sound it might be, could of itself amount to ‘substantial new information’. Weinberg J upheld the objection to competency on the ground that the purported decision made on 7 May 2003 was not a decision under the EPBC Act.
The Grounds of Appeal
36 The grounds of appeal as set out in the notice of appeal are as follows:
‘1. The Learned Judge erred in holding that the First Respondent’s statement of reasons dated 29 May 2002 satisfied the requirements of section 13 of the Administrative Decisions (Judicial Review) Act 1977.
2. The Learned Judge erred by interpreting the First Respondent’s reasons for decision as being based on a finding that the possibility of an Eastern Freeway – Greensborough link was only a hypothetical possibility.
3. The Learned Judge erred by holding that the judgment of Gray J in Mees v Roads Corporation [2003] FAC (sic) 306 did not amount to "substantial new information" in accordance with section 78 of the Environment Protection and Biodiversity Conservation Act 1999.
4. The Learned Judge erred by not holding that the Second Respondent’s consideration of the matters referred to in paragraph 3 above was tainted by error of law regarding the relevance of secondary, or indirect, environmental impacts.’
Statutory Framework – The Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
37 Section 3 of the EPBC Act sets out its objects in the following terms:
‘(1) The objects of this Act are:
(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and
(b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and
(c) to promote the conservation of biodiversity; and
(ca) to provide for the protection and conservation of heritage; and
(d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and
(e) to assist in the co-operative implementation of Australia’s international environmental responsibilities; and
(f) to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and
(g) to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.’
In order to achieve its objects the EPBC Act is said, in s 3(2)(d), to adopt:
‘...an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; ...’
38 The provisions of Div 1 of Pt 3 of the EPBC Act prohibit ‘actions’ that have, will have, or are likely to have a significant impact on a matter of national and environmental significance. A person must not take an action that may have such an impact on ‘listed threatened species’ (s 18). Civil penalties apply to both individuals and bodies corporate contravening the prohibition. Similar protection is provided with respect to ‘listed migratory species’ (s 20).
39 The EPBC Act sets out a number of definitions in Ch 8 which include the definition of ‘action’. The term ‘action’ is defined in s 523 thus:
‘(1) Subject to this Subdivision, action includes:
(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).’
40 Chapter 2 of the EPBC Act which comprises Pts 3 and 4, is summarised by way of outline in s 11 which states that the chapter provides a basis for the Minister to decide whether an action that has, will have, or is likely to have a significant impact on certain aspects of the environment should proceed. The chapter does this by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed. Part 9 of the EPBC Act deals with the giving of approval. Part 4 deals with cases in which environmental approvals are not needed. These include cases in which there is a bilateral agreement between the Commonwealth and the State or Territory in which the action is taken which declares that the action does not need approval. Approval is not needed where the Minister so declares.
41 Chapter 4 of the Act deals with environmental assessments and approvals. In simplified outline, set out in s 66, a person proposing to take an action, or a government body aware of the proposal, may refer the proposal to the Minister. The Minister can then decide:
‘(a) whether his or her approval is needed to take the action; and
(b) how to assess the impacts of the action to be able to make an informed decision whether or not to approve the action.’
42 Section 67 defines the term ‘controlled action’ thus:
‘An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be prohibited by the provision. The provision is a controlling provision for the action.’
43 Section 68 provides for referral by a person proposing to take an action as follows:
‘(1) A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
(2) A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
(3) In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.’
Subsections (4) and (5) are not material for present purposes.
44 There is provision for States, self-governing Territories and agencies of States and self-governing Territories to refer proposals by persons to take actions to the Minister for decision on whether or not the proposed action is a ‘controlled action’. This arises where the State, Territory or agency has administrative responsibilities relating to the action. It does not apply in relation to a proposal by the State or Territory itself (s 69(2)). In such a case s 68 applies.
45 Where a proposed action is referred to the Minister, s 75 applies and provides in the relevant parts:
‘Does the proposed action need approval?
Is the action a controlled action?
(1) The Minister must decide:
(a) whether the action that is the subject of a proposal referred to the Minister is a controlled action; and
(b) which provisions of Part 3 (if any) are controlling provisions for the action.
...
Minister must consider public comment
(1A) In making a decision under subsection (1) about the action, the Minister must consider the comments (if any) received:
(a) in response to the invitation (if any) under subsection 74(3) for anyone to give the Minister comments on whether the action is a controlled action; and
(b) within the period specified in the invitation.
Considerations in decision
(2) If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:
(a) the Minister must consider all adverse impacts (if any) the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3; and
(b) must not consider any beneficial impacts the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3.’
Subsections (3) to (7) of s 75 are not material for present purposes.
46 Section 74 requires the Minister to seek any relevant information or comments from other Commonwealth Ministers with administrative responsibilities relating to the proposal, from ATSIC, from appropriate State or Territory Ministers and from the public.
47 Section 77 requires that within ten business days after deciding whether an action is a ‘controlled action’, the Minister must give written notice of the decision to the proponent and publish notice of the decision in accordance with the regulations (s 77(1)). The Minister is also required to give reasons for decision to a person who has been given the notice and within 28 days of being given the notice has requested the Minister to provide reasons (s 77(4)).
48 There is provision for reconsideration of decisions and this is set out in s 78 which provides, inter alia:
‘Reconsideration of decision
Limited power to vary or substitute decisions
(1) The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:
(a) the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(aa) the Minister is satisfied that the revocation and substitution is warranted by a substantial change in circumstances that was not foreseen at the time of the first decision and relates to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3;....’
Statutory Framework – Administrative Decisions (Judicial
Review) Act 1977 (Cth)
49 Applications under the ADJR Act must be made in accordance with the requirements of s 11 of the Act which provides, inter alia:
(1) An application to the Federal Court or the Federal Magistrates Court for an order of review –
(a) shall be made in such manner as is prescribed by:
(i) in the case of an application to the Federal Court – Federal Court Rules; or
(ii) in the case of an application to the Federal Magistrates Court – Federal Magistrates Rules; and
(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
...
(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision was made and ending on the twenty-eighth day after –
(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision – the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b) in a case to which paragraph (a) does not apply –
(i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under sub-section 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant – the day on which the statement is so furnished;
(ii) if the applicant, in accordance with sub-section 13(1), requests the person who made the decision to furnish a statement as mentioned in that sub-section – the day on which the statement is furnished, the applicant is notified in accordance with sub-section 13(3) of the opinion that the applicant was not entitled to make the request, the Federal Court or the Federal Magistrates Court makes an order under sub-section 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with sub-section 13A(3) or 14(3) that the statement will not be furnished; or
(iii) in any other case – the day on which a document setting out the terms of the decision is furnished to the applicant.’
50 Section 13 of the ADJR Act relating to the provision of reasons provides, in the relevant parts:
‘(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
...
(7) If the Federal Court or the Federal Magistrates Court, upon application for an order under this sub-section made to it by a person to whom a statement has been furnished in pursuance of a request under sub-section (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.
...
(11) In this section, "decision to which this section applies" means a decision that is a decision to which this Act applies, but does not include –
(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;
(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or
(c) a decision included in any of the classes of decision set out in Schedule 2.’
51 Section 3(1) of the ADJR Act defines the term ‘decision to which this Act applies’ as:
‘... a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cd) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decision set out in Schedule 1.’
The term ‘enactment’ is defined, inter
alia, to include an Act.
Ground 1 – Whether the Minister’s
Statement of Reasons Complied with the Requirements of Section 13 of the ADJR
Act
52 There are two sources of obligation upon the Minister to give reasons for a decision, under the EPBC Act, that a proposed action is not a ‘controlled action’. The first arises out of s 77 of that Act. The Minister is obliged by that section to give written notice of his decision to the proponent (inter alia) and to publish notice of the decision in accordance with the regulations. The Minister is also obliged to give reasons for the decision to any person who has been given the notice and who, within 28 days of being given it, has requested the Minister to provide reasons (s 77(4)). This requirement is elaborated by s 25D of the Acts Interpretation Act 1901 (Cth) as including a statement of the findings on material questions of fact and the evidence or other material on which the findings were based. However the obligation imposed by s 77(4) applies only in respect of persons to whom the Minister is required to give notice by s 77(1)(a). The appellant was not such a person.
53 It was not submitted that the specific obligation imposed by s 77(4) displaces the general obligation imposed by s 13 of the ADJR Act. The sufficiency of the Minister’s reasons turned entirely upon their compliance with the requirements of s 13 of the ADJR Act.
54 Sections 13(1) and (2), read together, require a decision-maker who has been requested to give reasons for a decision to provide:
1. A statement in writing.
2. Setting out the findings on material
questions of fact.
3. Referring to the evidence or other material on which
those findings were based.
4. Giving the reasons for the decision.
The section requires that reasons be furnished ‘which make
intelligible the true basis of the decision’ – ARM Constructions
Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 204 (Burchett J).
It is remedial and supplies the deficiency of the common law –
Australian Institute of Marine and Power Engineers v Secretary, Department of
Transport [1986] FCA 443; (1986) 13 FCR 124 at 130 (Gummow J). It is designed to provide
persons affected by a decision with sufficient information to decide
whether to
accept it or to pursue the matter further with the administrative process or
through the Court – Ansett Transport Industries (Operations) Ltd v
Secretary, Department of Aviation (1987) 73 ALR 193 at 197 (Lockhart J).
55 The section does not require that the reasons are set out with the degree of precision or detail which might be appropriate to a judicial decision:
‘But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment.’ – Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 179 (French J)
56 The appellant submits that the reasons provided by the Minister on 29 May 2002 stated that he had taken account of comments received from members of the public including the appellant. However the reasons made no reference to the issue of the further freeway link through Heidelberg or to the matters raised in the Department’s advice to the Minister.
57 The appellant says in his written submission that he assumed at the time of receiving the reasons that the Minister had not addressed the question of the freeway link because he was not empowered to question the information supplied about that in the referral document. It was not until the Minister’s letter to the appellant in May 2003 that he became aware of the Minister’s view that ‘... the environmental impacts of a future freeway link are not relevant impacts of the northern section of the Scoresby Freeway’. In oral argument at the hearing of the appeal the appellant said he assumed that his submission to the Minister had been rejected on its merits. These contentions, with respect, are not tenable. There was no reference to the possibility of a future freeway link in the Minister’s reasons. The appellant was entitled to infer from that the Minister had either considered that the possibility of that link was irrelevant or had overlooked it. The reasons did not convey, and could not be read as conveying, any view on the part of the Minister that he would not go behind the factual aspects of the referral.
58 The statement in the reasons that the Minister ‘took account of comments received from the public’ is consistent with the view that if he did not mention them specifically in his reasons he regarded them as irrelevant or had failed to consider them. In either event, if the matters raised were relevant and required to be considered as an adverse impact the failure to do so would arguably give rise to a ground for review.
59 As counsel for the Minister submits it was not incumbent on the Minister to set out in his reasons for decision why it is that he had not taken into account the possibility of a future link. That he had not taken it into account was apparent from the reasons. It cannot be said therefore, on the basis advanced by the appellant, that the reasons were deficient or did not comply with s 13. In so saying we should not be taken to accept, as a factual generalisation, his Honour’s observation that ‘anyone’ reading this statement would immediately appreciate that it said nothing about any possible future freeway link or the secondary effects that might eventuate from such a link. That might well depend upon whether a reader of the reasons had the question in mind at all. It is sufficient to say that those, including the appellant, who were aware that a submission about the possibility of a future freeway link had been made would appreciate that the reasons said nothing about it.
60 The appellant did not challenge the exercise of his Honour’s discretion not to extend time for the filing of an application for review of the decision of 21 March 2002. It is therefore not necessary to canvass his Honour’s view of the merits of the appellant’s challenge which went to the exercise of that unchallenged discretion. The first ground of appeal therefore fails.
Ground 2 – The Learned Primary Judge’s Characterisation of the Apprehended Consequential Freeway Link as ‘Hypothetical’
61 The second ground of appeal refers to his Honour’s finding at [107] that the construction of an Eastern Freeway-Greensborough link was an hypothetical possibility which could not amount to an adverse impact which the Minister was required to take into account in exercising his powers under s 75. As appears from [105] of his Honour’s judgment this aspect of his reasons was directed to the question whether the merits of the case warranted the grant of an extension of time.
62 His Honour referred to the decision of Kiefel J in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 in which her Honour said of the words ‘all adverse impacts’ in s 75 that they suggested the ‘widest possible consideration limited only by ‘considerations of likelihood’. She added (at [39]):
‘By that means the Environment Minister will exclude from further consideration those possible impacts which lie in the realms of speculation.’
An appeal against her Honour’s decision was dismissed on 30 July 2004 – Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190. The Full Court (Black CJ, Ryan and Finn JJ) said (at [61]):
‘We do not consider that the learned primary Judge adopted a construction of s 75 which imposes on the Minister an obligation to conduct an excessively wide enquiry. For the reasons which we have endeavoured to explain, the width of the enquiry in each case will depend on its facts and on what may be inferred from the description of the "action" which the Minister is required to consider at the threshold of the process that leads to the permitting or proscribing of the action. We do not understand her Honour to have taken a different view when she focussed in [39] of her reasons ... on the words "likely" and "significant". That focus led her Honour to conclude that the Minister can exclude from further consideration only those potential impacts "which lie in the realm of speculation." When it is understood that those remarks are predicated on the "impacts" (with the connotation we have ascribed to that expression) of "actions" as defined in s 523, they are unexceptionable.’
63 The learned primary judge in characterising the apprehended Eastern Freeway-Greensborough link as ‘hypothetical’ and, by inference from his reference to the judgment of Kiefel J as ‘speculative’, was addressing the merits of the claim that the Minister had failed to take into account a mandatory relevant consideration. That is, his Honour was addressing the question whether the hypothesised further link was an ‘adverse impact’ of the proposed action for the purposes of s 75(2)(a). That consideration went to the merits of the contention that the Minister had erred in making his first decision. It did not go to the question whether the Minister’s reasons complied with s 13 of the Act. On that matter the learned primary judge found, correctly, that they did comply. The consideration by his Honour of the legal merits of the Minister’s reasoning went only to the question whether, as a matter of discretion, an extension of time should be allowed under the ADJR Act. The exercise of his Honour’s discretion on the extension question was not challenged on this appeal. The appellant’s submission, in oral argument, was that the time limited for bringing an application under the ADJR Act commenced running on the day ‘the minister first informed me of what was really going on and therefore I don’t need an extension and therefore there’s no question of discretion in relation to that’. The appellant was asked expressly by the Court whether he was challenging his Honour’s decision on any discretionary basis or simply on the basis that he had mischaracterised the adequacy of the reasons. The appellant accepted that that was his position and said:
‘Indeed, I specifically said in my written submissions that I wasn’t seeking to challenge discretionary basis.’
The second ground is therefore of no assistance to the appellant in this case. It takes his appeal nowhere because it relates to the exercise of a discretion by his Honour which is not challenged on the appeal.
Ground 3 – The Second Decision – Whether the Judgment of Gray J constituted ‘substantial new information’
64 Section 78 of the EPBC Act empowers the Minister to revoke a decision about an action made under s 75(1) and to substitute a new decision for it. It was a necessary condition of that power, as invoked by the appellant in the present case, that the Minister be ‘satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts’ that the action would have or be likely to have on a matter protected by Pt 3.
65 The appellant in his application for review sought an order for review of what he described as:
‘The decision of the [Minister] made on or about 7 May 2003 (‘the second decision’) not to reconsider the first decision pursuant to section 78 of the Environment Protection and Biodiversity Conservation Act 1999.’
The single ground of review which applied to that decision as to the first decision was:
‘The [Minister] failed to take into account a relevant consideration, namely the strong chance that a freeway link will be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough, as a consequence of the building of the northern section of the Scoresby Freeway – ss 5(2)(b) and 6(2)(b), Administrative Decisions (Judicial Review) Act 1977.’
As may be seen the application did not raise the question now raised on appeal whether the relevant necessary condition for the exercise of the Minister’s power under s 78 was fulfilled.
66 In his letter to the Minister of 2 May 2003, the appellant defined the ‘new information’ required pursuant to s 78(1)(a) as ‘provided by the Court’s finding that the proponents provided you with misleading information by not disclosing the high likelihood of the freeway causing the construction of a further road through Bulleen and Heidelberg. This road would affect endangered species and migratory birds ...’. The new information was the Court’s finding. It was not put to the Minister that the Court’s finding was based on additional material. No additional material, which itself might constitute ‘substantial new information’, was referred to in the letter.
67 The Minister, in his reply of 7 May 2003, referred to traffic assessment reports which had been available to him when he made his original decision and his awareness of ‘the possibility of the future need for a freeway link as a consequence of the Scoresby Freeway ...’. He determined that the Court findings and the appellant’s submissions in relation to them did not constitute ‘... substantial new information’.
68 The question whether the Minister is satisfied or not satisfied that there is ‘substantial new information’ for the purposes of s 78(1)(a) of the Act is not to be answered solely by reference to the nature of the information tendered. Nor is it to be answered solely by reference to the subjective state of the Minister’s mind. Statutory powers are not infrequently conditioned upon their repositories having a particular state of mind such as suspicion, belief, reasonable cause to suspect or believe, satisfaction or reasonable satisfaction. Such words limit what might otherwise seem to be arbitrary powers – WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 186 (Lockhart J, Bowen CJ agreeing). In the case of a power conditioned upon the existence of a belief, its exercise may be challenged for want of reasons for the specified belief – at 181 (Brennan J). A recent example of the application of this principle appeared in Goldie v The Commonwealth [2002] FCA 433; (2002) 117 FCR 566 where an officer who had detained a person under s 189 of the Migration Act 1958 (Cth) without a reasonable basis for his belief that the person was an unlawful non-citizen, was held to have detained the person unlawfully.
69 Where an official, required to be satisfied of certain matters, reaches a state of satisfaction based upon an error of law concerning what it is that he or she must be satisfied about then the requisite state of satisfaction conditioning the power has not been attained. One example is the case in which the Minister for Immigration or a delegate misconstrues the criterion for the grant of a visa and is satisfied on the basis of that misconstruction that the criterion is or is not met – Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 at 106 – [43]. When an official fails to be satisfied of certain matters because he or she has misconstrued the criteria for a requisite state of satisfaction, the official’s failure or refusal to exercise a power because of that want of satisfaction may be reviewable. It may be reviewable at least to the extent of requiring reconsideration of the question whether the condition for its exercise has been fulfilled.
70 The bases upon which the exercise or refusal to exercise a power, contingent upon official satisfaction of certain matters, is reviewable have been discussed in numerous authorities – see the authorities considered and the discussion in Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-276. The formation of the relevant opinion or state of satisfaction is a jurisdictional fact so that the power is not validly exercised if it does not exist – Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 653-657 – Gummow J.
71 In the context of a ministerial power to cancel a visa upon satisfaction that the visa holder is not of good character, Gleeson CJ and Gummow J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532:
‘Such provisions are construed as requiring the decision-maker reasonably to be so satisfied. The question then on judicial review is whether the decision-maker could have attained that satisfaction reasonably, in the sense explained in numerous authorities in this Court. In Foley v Padley [(1984) [1984] HCA 50; 154 CLR 349 at 370], Brennan J emphasised that the question on judicial review is not whether the court would have formed the opinion in question, and that an allegation of unreasonableness in the formation of the opinion by the decision-maker may prove to be no more than an impermissible attack on the merits of the decision.’
72 It should be borne in mind that the Minister’s power to vary or substitute a decision under s 78 is discretionary. When all the conditions for the exercise of the power are satisfied he or she ‘may revoke ... and substitute’. There is no duty to do so. No doubt a refusal to do so made in bad faith or for purposes extraneous to the objects of the statute or based upon irrelevant considerations or some error of law would be reviewable under the ADJR Act.
73 The ministerial satisfaction which is the prerequisite to the exercise of the power under s 78(1)(a) involves consideration of evaluative and quasi discretionary elements. The questions which the Minister must address in determining whether he or she is satisfied include:
1. Whether information is available about the impact that the proposed action has or will have or is likely to have on matters protected by a provision of Pt 3.
2. Whether the information is ‘substantial’.
3. Whether the information is ‘new’.
4. Whether revocation and substitution of the previous decision is ‘warranted’ by the availability of the information.
74 The present case turns entirely upon the character of the material put before the Minister as ‘information’. The subject matter of the information required under s 78(1)(a) is necessarily ‘about the impacts’ the proposed action will have or is likely to have on protected matters. The relevant ordinary meaning of ‘information’ in this context is:
‘Knowledge or facts communicated about a particular subject, event etc.; intelligence, news ...
An item of news; (in early use) an account (of something);’
Shorter Oxford English Dictionary, 5th Edition OUP 2002
The opinion of Gray J in his reasons for judgment that there is a strong chance that an outcome of the proposed action will be the construction of a further freeway link is not ‘information’ about the impacts that the action has or will have, or is likely to have, on a matter protected by Pt 3 of the Act. Thus, the material relied upon as constituting ‘new information’ did not satisfy the requirements of s 78(10(a). While some of the material before Gray J may have constituted such information the appellant has not claimed that that information is new information for the purposes of s 78(1)(a) of the Act.
75 Accordingly, the Minister’s refusal to reconsider his first decision under s 78(1)(a) cannot be impugned for error of law. What was put before him was not information of the kind required to engage the power under s 78(1)(a). The third ground of appeal therefore fails.
Ground 4 – Whether the Minister’s decision not to revoke his first decision was affected by error of law in relation to indirect environmental impacts
76 The question whether secondary or indirect impacts of a proposed action are within the class of adverse impacts to be considered by the Minister was canvassed at the hearing of the appeal. It had however no bearing on the validity of the Minister’s refusal to reconsider his original decision. That refusal, for the reasons already explained, could not be vitiated for error of law as what was put before the Minister was not information of the kind necessary to engage the revocation power.
Conclusion
77 For the preceding reasons, the appeal should be dismissed.
I certify that the preceding seventy
seven (77) numbered paragraphs
are a true copy of the Reasons for
Judgment herein of the Court.
Associate:
Dated: 11 February 2005
Dr PA Mees appeared on his own behalf
Counsel for the
First
Respondent: Mr P Hanks QC and Ms R Orr
Solicitors for the
First Respondent: Australian Government Solicitor
Counsel for the
Second
Respondent: Mr M Dreyfus QC and Dr KL Emerton
Solicitors for
the Second
Respondent: Phillips Fox
Date of Hearing: 25 August
2004
Date of Judgment: 11 February 2005
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