Lansen v Minister for Environment and Heritage [2008] FCAFC 189 (17 December 2008)

ADMINISTRATIVE LAW – application for approval of "controlled action" under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – whether assessment of the proposal was properly made under a Bilateral Agreement between Commonwealth and Northern Territory when Bilateral Agreement came into force after decision of Minister that proposal was controlled action – whether assessment of proposal should have been made under Part 8 of EPBC Act – whether the primary judge was correct in holding that assessment of proposal was properly made under the Bilateral Agreement

ADMINISTRATIVE LAW – whether the pre-condition to the grant of approval under Part 9 of the EPBC Act is satisfied where the Minister receives a report that there is not enough information – whether the Minister received an assessment report as required by s 133 –whether the primary judge was correct in concluding there was an assessment report in existence within the meaning of s 133 of the EPBC Act

ADMINISTRATIVE LAW – whether the Minister breached s 134(4)(a) of the EPBC Act – whether any breach of s 134(4)(a) rendered the approval invalid - whether the primary judge erred in concluding that any breach of s 134(4)(a) did not render the Minister's decision invalid

PRACTICE AND PROCEDURE – whether the appellants should be permitted to raise an issue not argued before the primary judge

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16
Judiciary Act 1903 (Cth) s 39B
Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 11, 19,18A, 33, 47, 67, 75, 81, 83, 84, 87, 131, 132, 133, 134, 136, 143, 523, 528
Mining Management Act 2001 (NT)
Environmental Assessment Act 1982 (NT)

Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; (2000) 63 ALD 43
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346
Martincevic v The Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Sutherland Shire Council v Finch [1970] HCA 49; (1970) 123 CLR 657
The Queen v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSW LR 55

HARRY LANSEN, PETER ELLIS, JERRY ANDERSON, DEREK ANDERSON, RONNY RAGGETT, NANCY KUNOTH, ROGER WILSON, SWEENY SWANSON, BRUCE JOY AND BILLY COOLIBAH ON BEHALF OF THE KURDANJI PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6020/98), LES HOGAN ON BEHALF OF THE GARAWA AND GURDANJI PEOPLE (IN HIS CAPACITY AS REGISTERED NATIVE TITLE CLAIMANT IN FEDERAL COURT PROCEEDINGS NTD 6020/00), DINAH NORMAN ON BEHALF OF THE RRUMBURRIYA PEOPLE (IN HER CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6014/00), WENDY ROPER, GORDON LANSEN, PHILLIP TIMOTHY, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE RRUMBURRIYA BORROLOOLA GROUP (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6003/03), LEONARD NORMAN, WAILO MCKINNON, NORMA TIMOTHY, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE ANTHAWIRRIYARRA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6024/98) and BILLY COOLIBAH,AND ROY DIXON ON BEHALF OF GURDANJI AND GARAWA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6031/00) v COMMONWEALTH MINISTER FOR ENVIRONMENT AND HERITAGE and MCARTHUR RIVER MINING PTY LTD
NTD 12 OF 2008

MOORE, TAMBERLIN AND LANDER JJ
17 DECEMBER 2008
SYDNEY

BETWEEN:

HARRY LANSEN, PETER ELLIS, JERRY ANDERSON, DEREK ANDERSON, RONNY RAGGETT, NANCY KUNOTH, BILL DODD, ROGER WILSON, SWEENY SWANSON, BRUCE JOY AND BILLY COOLIBAH ON BEHALF OF THE KURDANJI PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6020/98)
First Appellant

LES HOGAN ON BEHALF OF THE GARAWA AND GURDANJI PEOPLE (IN HIS CAPACITY AS REGISTERED NATIVE TITLE CLAIMANT IN FEDERAL COURT PROCEEDINGS NTD 6020/00)
Second Appellant

DINAH NORMAN ON BEHALF OF THE RRUMBURRIYA PEOPLE (IN HER CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6014/00)
Third Appellant

WENDY ROPER, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE RRUMBURRIYA BORROLOOLA GROUP (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6003/03)
Fourth Appellant

LEONARD NORMAN, WAILO MCKINNON, NORMA TIMOTHY, GRAHAM FRIDAY, MAVIS TIMOTHY ON BEHALF OF THE ANTHAWIRRIYARRA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6024/98)
Fifth Appellant

BILLY COOLIBAH, AND ROY DIXON ON BEHALF OF GURDANJI AND GARAWA PEOPLE (IN THEIR CAPACITY AS REGISTERED NATIVE TITLE CLAIMANTS IN FEDERAL COURT PROCEEDINGS NTD 6031/00)
Sixth Appellant

2. Order 2 of the orders made on 13 June 2008 be set aside, and in lieu thereof the Court:

(a) Declares that the approval granted by the First Respondent on 20 October 2006 under s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for the Second Respondent to construct an open cut lead and zinc mine at McArthur River, in the Gulf Country of the Northern Territory, is invalid;

(b) Orders that there be granted an order in the nature of certiorari to quash the approval granted by the First Respondent on 20 October 2006 under s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for the Second Respondent to construct an open cut lead and zinc mine at McArthur River, in the Gulf Country of the Northern Territory;

(c) Orders that the Second Respondent’s application pursuant to s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for approval to take an action to construct an open cut lead and zinc min at McArthur River, in the Gulf Country of the Northern Territory, be remitted to the First Respondent for determination according to law.

3. The Order made on 5 September 2008 that the Appellants pay the First and Second Respondent 25 per cent of their costs of the proceedings, such costs to include the costs of and incidental to the Appellants’ Notice of Motion of 29 April 2008, be set aside, and in lieu thereof Order that the First and Second Respondents pay the Appellants’ costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

BETWEEN:

AND:

COMMONWEALTH MINISTER FOR ENVIRONMENT AND HERITAGE
First Respondent

MCARTHUR RIVER MINING PTY LTD
Second Respondent

1 We have had the advantage of reading the reasons for judgment of Tamberlin J in draft form. We gratefully adopt his account of the factual background. We agree with his Honour's conclusion and generally with his reasoning on the second issue whether the Minister was provided with an assessment report within the meaning of s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

3 The grounds raised by the appellant before the primary judge were set out in a second further amended application dated 18 February 2008. The grounds of appeal repeat several of those grounds. However one issue the appellant seeks to raise in the appeal was not raised before the primary judge. It is that if AR 51 was an assessment report, the Minister acted beyond power in seeking further information which he requested. Indeed it was a matter the primary judge expressly identified in his reasons as a point that had not been raised. Perhaps this intimation prompted the appellant to pursue it in the appeal. The respondents submit that the appellant should not be permitted to raise this new point.

4 The question of whether an appellant, in the context of judicial review proceedings, should be allowed to raise a point that was not argued before the primary judge, was considered comparatively recently by the Full Court in Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50. The Full Court said at [27] – [29]:

5 However it is not only the potential of injustice to a party that is relevant. As a Full Court in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; (2000) 63 ALD 43 at 44-45 noted:

6 It is now no longer sufficient, if it ever was, to say that a respondent to an appeal in which a fresh point is raised is protected from injustice by the way in which costs might be awarded. Injustice can arise in many and varied ways. The present case is a good example. If the fresh point is a good one and might alter the way in which the proceedings are resolved, there is a risk that at least the second respondent might suffer material injustice. It may suffer injustice by having been denied the opportunity of considering the point when it should have been first raised (before the hearing by the primary judge), taking legal advice and, if appropriate, approaching the litigation on the basis that the point was a good one. Consent orders might have been negotiated and the proceedings resolved many months ago, perhaps on the basis that the second respondent would then pursue a course of action designed to repair, in whole or in part, the effect of a defect in the decision-making process. In our opinion, the appellant should not be permitted to argue the new point.

7 In the introduction to these reasons we have identified the first issue raised on the appeal. It is to be recalled that a delegate of the Minister decided on 4 March 2003 that the proposed action needed approval, which was a decision made under s 75 of the EPBC Act, and the bilateral agreement with the Northern Territory Government came into effect on 19 March 2003. The gist of the appellant's argument was that once the decision is made under s 75, Part 8 is engaged and that remains so even if a bilateral agreement comes into effect while the proposed action is being assessed under that Part. The submission was that a bilateral agreement only renders Part 8 inapplicable if it was in effect at the time Part 8 would otherwise have been engaged. Indeed the appellant went further and submitted that it was necessary for the assessment of the proposed action to have been made under the bilateral agreement to render Part 8 inapplicable.

The respondents supported this reasoning. In our view, s 81 together with s 83 and s 84 do operate in this way. Of central importance is whether s 81 determines whether Part 8 is engaged immediately following a decision under s 75 and, if it is engaged, whether the Part can later be disengaged by the further operation of s 81. Put slightly differently, the question is whether s 81 has an ongoing operation once it has operated to engage the remainder of Part 8.

9 Part 8 establishes a number of mechanisms for assessing the impact of controlled actions. If the Part is to apply fully, the first step entails the Minister exercising the power conferred by s 87 to select the mechanism for assessment. Depending on the choice made, one of the disparate Divisions (each establishing in detail a mechanism for assessment) of the Part then applies. However, whether the selection of the mechanism and its application occurs at all depends on the operation of s 81, which is the first substantive section in Part 8 and operates as a gateway to the remainder of the Part.

10 A convenient starting point in explaining our construction of the relevant provisions are the observations in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294. It is unnecessary to refer to the particular legislative provisions that the High Court was considering in that matter. It is sufficient to note that the Court had to determine whether a particular provision of the Migration Act 1958 (Cth) had work to do only at one particular point in the review process established by that Act or whether it had work to do during a longer period of that process. Kirby J made the following general observations about when such a provision might have effect at [155] – [158]:

11 A significant part of the EPBC Act is directed to identifying whether activities proposed to be undertaken would or might have a deleterious effect on, amongst other things, places, property, species or environments the Commonwealth is committed to protecting and whether those activities should be permitted or permitted on terms. To that end, the EPBC Act provides for a process of notification of proposed activities, determination of whether it is necessary to assess the effect of those activities and, if so, a process of assessment and decision-making after, and having regard to, the assessment. Section 3(2)(d) declares that the EPBC Act, to achieve its object, adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have a significant impact on the environment are properly assessed. This is reflected in the approval process itself which, at various points, provides that certain steps in the process must be undertaken within specified times.

12 Of course, as the primary judge noted, s 3 also declares that to achieve its objects, the EPBC Act strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements (s 3(2)(b)) and provides for the intergovernmental accreditation of environmental assessment and approval processes (s 3(2)(c)). However, in terms of process, timeliness is important in the overall scheme of the EPBC Act. The operation of s 81 arising from the construction advanced by the appellant might serve to secure timely assessment more so than the construction advanced by the respondents. We return to this question later after considering the language actually used in establishing the contentious gateway to part of the overall scheme, namely the gateway to Part 8 created by s 81.

13 In our opinion, there can be no doubt that once a decision is made under s 75 that the proposed action that has been referred to the Minister is a controlled action, the process of assessment prescribed by Part 8 must be undertaken. An exception to this statutory requirement arises if s 81(2) operates with either s 83 or s 84 to render inapplicable the remainder of Part 8 to that action. The language used in these controlling sections might be thought to be consistent with the question of whether the process of assessment embodied in Part 8 need be followed, as arising at the point when Part 8 would otherwise commenced to operate. This is most obvious from the language of s 84. That section renders Part 8 inapplicable save, of course, for s 81 and s 84, which are contained in Part 8. Section 84 operates if two conditions are satisfied. The first is that the Minister has made a declaration of the specified type and the second is that the declaration is in operation. This formulation is expressed in terms that might be thought to signify that these preconditions need to exist at the time consideration is first given to s 84 immediately following a decision under s 75. Consideration of s 84 arises because of s 81(2). The expression "is in operation" tends to focus attention on the existence of that precondition at the outset rather than at some time after the processes in Part 8 have begun to operate.

14 However, the source of the power to make a declaration disengaging Part 8 (on the footing that "the action need not be assessed under" that Part) is found in the section itself (s 84), which also identifies the preconditions for the exercise of the power. This is to be contrasted with a declaration that might be made under s 33 that actions in a class of actions do not require approval under Part 9. It is apparent that once s 81 has been enlivened by a decision under s 75, steps can then be taken under Part 8 to render inapplicable the remainder of the Part. Accordingly, s 81 does not have an immediate operation when the decision under s 75 has been made, such that the section is spent if it does not (together with either s 83 or s 84) immediately render inapplicable the remainder of Part 8. Events can occur after s 81 is initially engaged to alter the way in which it operates. That is, s 81 can initially operate to render applicable Part 8 and later operate to render the remainder of that Part inapplicable. If s 81 and s 84 can operate this way, it follows that there is no basis for treating the combined operation of s 81 and s 83 as any different in the sense that the condition precedent enlivening s 83 (the existence of an operative bilateral agreement) can come into existence after s 81 has begun to operate to render applicable Part 8.

15 In relation to s 83, the appellant argued that Note 2A signifies that this section, when operating in conjunction with s 81(2), renders inapplicable the remainder of Part 8 only when there has already been an assessment under a bilateral agreement at the time Part 8 would otherwise commenced to apply. Necessarily the bilateral agreement must have been in force at this time. This is also apparent, it was submitted, from the way in which s 47(1) identifies the actions in a class of actions that a bilateral agreement may declare need not be assessed under Part 8. They are identified as "actions in a class of actions... that... have been assessed in a specified manner" (emphasis added) The remainder of s 47 indicates that the specification will be found in the bilateral agreement. The appellant argued that the expression "have been assessed" fixes only on assessments that have been made at the time that the declaration in the bilateral agreement would operate, by virtue of s 83, to render inapplicable Part 8 and the process of assessment that would otherwise arise from the operation of the Part.

16 We accept that the use of the present perfect ("have been assessed") might be thought to signify that the declaration in a bilateral agreement that disengages Part 8 could only relate to actions that had been assessed where the process of assessment was complete at the time the declaration took effect. However, such a construction imposes a significant limitation on the statutory scheme based, in part, on bilateral agreements. Indeed it is a limitation at odds with the fundamentals of the scheme. The statutory scheme contemplates assessment under the EPBC Act, but equally under a State or Territory mechanism of assessment acceptable to the Minister that operates by virtue of the bilateral agreement. It is a scheme based on cooperation between the States, Territories and the Commonwealth. There is no reason to believe that the EPBC Act was drafted so as to render inapplicable assessment under Part 8 only when there had already been a completed assessment under a State or Territory mechanism countenanced by the particular bilateral agreement. To the contrary, it would be consistent with the scheme that the assessment which would otherwise take place after the decision under s 75 could occur, prospectively, under either the EPBC Act (and Part 8 in particular) or a State or Territory mechanism of assessment rendered applicable by the bilateral agreement. The use of the expression "have been assessed" is more likely to have been intended to address the state of affairs at the conclusion of the State or Territory mechanism of assessment under the bilateral agreement that would have supplanted a mechanism of assessment under Part 8.

17 We referred earlier to s 81 operating in a way that secured timely assessment. It is to be recalled that the primary judge did not conclude that the continued operation of Part 8 would be displaced if a bilateral agreement began to operate after a decision about a mechanism of assessment directly under the EPBC Act had been made under s 87. We, likewise, do not have to address this question as it does not arise on the facts of this matter. It may be the case that once a decision is made by the Minister under s 87, then impliedly s 81(2) and s 83 can no longer operate to engage a process of assessment under a bilateral agreement that then came into operation. However to treat s 81(2) and s 83 as disengaging Part 8 before a decision is made under s 87 would have, at most, only a minimal impact on the timeliness of the assessment to be made.

18 In our opinion, the primary judge was correct in concluding that no error attended the assessment of the controlled action in this case merely because it was under a mechanism contemplated by the bilateral agreement with the Northern Territory.

19 We agree with Tamberlin J's analysis at [261]-[277] of the second issue on the appeal whether AR 51 was an "assessment report" within the meaning of s 133 of the Act and we have nothing to add on that issue. We agree that the primary judge was correct in holding that there was an assessment report in existence within the meaning of s 133 at the time of the decision.

20 It is on the third issue that we differ with both Tamberlin J and the primary judge. The third issue requires a closer consideration of the provisions of the EPBC Act.

22 Section 134 is only engaged if the Minister has decided to approve the taking of the action by the person under s 133.

23 Section 134(1) permits the Minister to attach a condition to the approval of the action if the Minister is satisfied that the condition is necessary or convenient for either of the reasons in s 134(1) or (2). Section 134(3) provides examples of the conditions which may be attached to any approval of an action. Section 134(3) permits the Minister to impose other conditions but does not of itself limit the kinds of conditions that may be attached to the approval. The conditions which may be attached to an approval are those types of conditions which are consistent with the objects contained in s 3 of the EPBC Act.

24 Clearly, not all of the conditions will be relevant or necessary in any given case to achieve the objects of the EPBC Act.

25 Section 134(4) is couched in imperative language. The Minister, in considering whether to attach any condition to an approval, whether of the kind in s 134(3) or for the purposes in s 134(1) or (2), must consider the three matters in s 134(4). In particular, the Minister is obliged to consider "any relevant conditions that have been imposed under a law of ... a self-governing Territory". A relevant condition would be a condition that is relevant for the purposes of s 134(1) or (2).

26 Section 134(5) explicitly provides that a failure by the Minister to consider information provided by the person proposing to take the action or by the designated proponent of the action does not invalidate the Minister’s decision about attaching a condition to the proposal.

27 One of the questions for this Court which was also a question for the primary judge is whether the failure by the Minister to consider the other paragraphs of s 134(4) and, in particular, paragraph (a) has the effect of invalidating the Minister’s decision to attach conditions to the approval.

28 Section 134(5) rather treats the Minister’s decision to attach a condition to the approval as a separate decision to the decision to approve the taking of an action by a person under s 133. However, the Minister accepted, rightly in our view, that if the decision to attach a condition to the approval was quashed the decision to approve the taking of an action could not stand. Clearly, the decision to give approval would, if conditions were to be attached, depend upon the conditions attaching.

29 The Northern Territory Government in approving the action required the second respondent to commit to a Mining Management Plan which was annexed as Schedule 1 to the amended mining authorisation. The Mining Management Plan imposed conditions including independent monitoring assessment conditions because of the impact on the effect of the mine’s operation on threatened or migratory species. The primary judge found, and we agree, that the Northern Territory conditions imposed were relevant and mandatory considerations for the Commonwealth Minister under s 134(4).

30 The primary judge found, as a matter of fact, that the Commonwealth Minister did not consider the relevant conditions imposed by the Northern Territory on the taking of the controlled action and, in particular, the relevant conditions which were included in the Mining Management Plan. He said at [151]:

31 The Minister does not challenge that finding on this appeal. Rather, the Minister argues that the primary judge was right to conclude that the failure to consider those conditions did not have the effect of invalidating the approval decision.

32 The appellants contended that the consequences of the Minister’s failure to consider the conditions under s 134(4) gives rise to invalidity on two separate bases; first, the Minister failed to comply with a statutory obligation; secondly, the Minister failed to take into account a relevant consideration. The first proposition requires a consideration of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 and the second proposition a consideration of Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1985) 162 CLR 24.

33 The question as to whether a decision made in breach of a condition regulating the exercise of a statutory power is invalid involves a question of statutory construction to determine whether the purpose of the legislation is to invalidate any act done in breach of the condition.

34 Not all acts done in breach of a legislative requirement which require the prior performance of a condition are invalid. The validity of any act done in breach of a statutory condition will depend upon whether it was intended by the legislature that such an act would be invalid. Sometimes the intention of the legislature will be evident from the language of the provision providing the power. However, the intention of the legislature is not ascertained merely because the legislature has couched the doing of the condition precedent in imperative language. It is not a useful test to determine the purpose of the legislation by asking whether compliance with the condition precedent is mandatory or directory. Such an approach may "deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid": Project Blue Sky [1998] HCA 28; 194 CLR 355 at 390. Moreover, little assistance can be obtained from a consideration of other statutes.

35 The test for determining whether an act done in breach of a condition is answered by determining whether the purpose of the legislation that an act done in breach of a condition should be invalid: Project Blue Sky [1998] HCA 28; 194 CLR 355 at 390; Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32. The purpose of the legislation will be gleaned from the scope and object of the EPBC Act which gives the power to do that act. The ascertained purpose will determine whether the act done in breach of a condition precedent in the EPBC Act is valid or invalid.

36 The question this Court must determine is whether the purpose of the EPBC Act is to render invalid any decision of the Minister to grant approval because of a failure by the Minister to consider the matters in paragraphs (a) and (b) of s 134(4) or whether, notwithstanding the Minister’s failure to consider those matters, the Minister’s decision remains valid.

37 To answer that question the EPBC Act, and in particular Part 9 of the Act, must be examined in some detail. The EPBC Act is "An Act relating to the protection of the environment and the conservation of biodiversity ...". The objects of the EPBC Act are identified in s 3 of the EPBC Act. There are three relevant objects for the purpose of this appeal. The first object of the EPBC Act is to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance: s 3(1)(a). The environment, for the purpose of the EPBC Act, relevantly includes ecosystems and their constituent parts, natural and physical resources and the qualities and characteristics of location, places and areas. An ecosystem means "a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit": s 528.

38 The second relevant object of the EPBC Act is to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources: s 3(1)(b). Ecologically sustainable development is not itself defined, but a corresponding phrase "ecologically sustainable use of natural resources" means "use of the natural resources within their capacity to sustain natural processes while maintaining the life support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations": s 528.

39 The third relevant object to which reference should be made is to promote the conservation of biodiversity: s 3(1)(c). Biodiversity is defined to mean "the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes (a) diversity within species and between species; and (b) diversity of ecosystems": s 528.

40 The objects recognise the need to protect the environment and the need to conserve biodiversity against an action taken by a person or developer. An "action" is defined in s 523 of the EPBC Act:

41 The purpose of the legislation is to control an action by a person or developer to achieve the objects of the EPBC Act. Projects, developments and undertakings (actions) must be controlled so as to protect the environment and conserve biodiversity.

42 Part 3 of the EPBC Act provides the basis for the Minister to decide whether an action which has or will have a significant impact on certain aspects of the environment should proceed: s 11. The EPBC Act recognises, in particular, areas which may be adversely affected by actions, being places of World heritage, National heritage and Wetlands of international importance. The EPBC Act also recognises that actions could have a significant impact on threatened species and ecological communities, migratory species, and the marine environment.

43 The scheme of the EPBC Act is to render unlawful an action that will have a significant impact on the areas and on the species and communities to which reference has been made. The EPBC Act provides for civil penalties and criminal offences in respect of that conduct. In that way, Part 3 of the EPBC Act provides for the categories which must be protected.

44 A "controlled action" is defined in s 67 of the EPBC Act. A controlled action is one which, but for an approval under Part 9 of the EPBC Act, would be prohibited by a provision of Part 3 (a "controlling provision": s 67).

45 If a person proposes to take an action that the person thinks may be a controlled action, that person must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action: s 68(1). The Minister must decide whether the action which is the subject of the proposal is a controlled action: s 75(1). When the Minister makes such a decision, the Minister must consider relevantly all adverse impacts that the action has or will have on any matter protected by Part 3: s 75(2). When the Minister makes a decision under s 75 that an action is a controlled action, the Minister must designate a person as a proponent of the action: s 75(3). Usually, but not invariably, that person will be the person who proposes to take the action: s 75(4).

46 Once a determination is made under s 75 the provisions of either Part 8 or Part 9 apply. As already observed, Part 8 will not apply if a bilateral agreement is in place and satisfies s 47: s 83. It also does not apply if the action is covered by a declaration: s 84. If the provisions of Part 8 do apply, then the Minister must decide on an approach for assessment of the relevant impacts of an action which the Minister has decided is a controlled action: s 87(1). The relevant impacts are those impacts that the action has or will have or is likely to have on the matter protected by each provision of Part 3 that the Minister has decided (under s 67) is the controlling provision: s 82.

48 The different forms of assessment process are diverse but are each designed to provide the Minister with sufficient information for the Minister to make an informed decision. Probably the most searching process would be an inquiry under Division 7 of Part 8. In every case the assessment process concludes by a report (of different kinds) being provided to the Minister.

49 Section 134(4) forms part of Part 9. It is necessary to consider the contents of the whole of that Part in order to determine the construction of the subsection.

50 Part 9 applies in all cases where a s 75 decision has been made. Part 8, as already mentioned, does not apply where ss 83 and 84 so provide. However, where Part 8 does apply and once Part 8 is complied with, that is, the assessment is made in accordance with the Minister’s determination under s 87(1), Part 9 applies.

51 Part 9 empowers the Minister to approve an action which the Minister has previously determined is a controlled action (i.e. those where the Minister has made a decision that an action is a controlled action under s 75 of the EPBC Act).

52 Section 130(1) requires the Minister to approve or not approve the taking of an action for the purposes of each controlling provision (i.e. a provision under Part 3) for a controlled action (an action which the Minister has decided to be a controlled action under s 75). In other words, the Minister’s approval requires a consideration of each relevant impact on each controlling provision.

53 Before doing so, the Minister must inform any other relevant Minister of the decision that the Minister proposes to make and invite the other Minister to comment: s 131.

54 In this case, the Minister was supplied with the AR 51 in February 2006 with a recommendation that the proposal as currently outlined in the draft EIS and its supplement does not proceed.

55 The Minister responded by proceeding under s 132 and requested the second respondent to provide the specified information referred to in the Minister’s letter of 16 March 2006.

56 The Minister was, at that stage, in a position where he did not have enough information to make an informed decision otherwise he would not have proceeded under s 132. In response to the Minister’s request of the second respondent, the Northern Territory Minister requested the second respondent to lodge an amended proposal directed towards additional information required to satisfy the Territory as to the impacts of the action. The Territory Environment Minister decided that the amended proposal would be assessed under the Environmental Assessment Act 1982 (NT) by a Public Environment Report (PER).

57 Eventually AR 54 was presented to the Minister which was, in its terms, equivocal.

58 On 13 October 2006 the Northern Territory Minister for Mines and Energy granted Authorisation 0059-02 under the Mining Management Act 2001 (NT) (the Mining Management Act) to approve the open-cut mining operation. On 17 October 2006 the Northern Territory Minister for Mines and Energy informed the Minister that approval had been given for the open-cut proposal under the Mining Management Act and that a copy of the authorisation and letter of approval to the second respondent of 13 October 2006 had been emailed to the Commonwealth Minister’s Department. It was received on 17 October 2006. On 20 October 2006 the Minister granted an approval under s 133 of the EPBC Act subject to conditions for the second respondent to conduct the open-cut mine. The Minister’s approval followed a brief of the Minister which included a statement of the Minister’s obligations for decision-making under Part 9 of the EPBC Act.

59 Section 132 empowers the Minister, when the Minister believes that he or she does not have enough information to make an informed decision whether or not to approve the taking of an action, to request the persons mentioned in s 132 to provide sufficient information relevant to the making of the decision. Section 132 is not engaged before the Minister is called upon to make a decision whether or not to approve the taking of an action under s 130. Section 132 is limited in its terms to requesting information which would allow the Minister to make an informed decision whether or not to approve the taking of an action. It does not empower the Minister to request specified information relating to the conditions which might attach to the approval. Whilst s 132 is not engaged until the Minister is called upon to make a decision whether the Minister would approve the taking of an action, it would allow the Minister to obtain that specified information before the Minister invited comments under s 131.

60 If the Minister has reached a decision which the Minister proposes to make, the Minister would not be in the position predicated in s 132 of not having enough information to make an informed decision whether or not to approve the taking of an action. For those reasons, we think s 132 is engaged prior to the invitations which must be issued under s 131.

61 Section 133 empowers the Minister to approve for the purposes of a controlling provision the taking of an action by a person. Whilst it does not say so in its terms, s 133 assumes that the Minister would have complied with s 131 and may have utilised s 132. Section 133 does not address the question of conditions which may attach to the approval. However, s 134 deals with the conditions.

62 We have already discerned in [21]-[28] the elements of s 134, but it is now necessary to show how s 134 interacts with the other provisions in Part 9.

63 It seems to us that the Minister must have considered at least the matters in s 134(4)(a) and (b) prior to the Minister complying with his or her statutory obligation in s 131 if the Minister is proposing to approve the taking of an action. The Minister must know what conditions he or she is proposing to attach to the approval and can only know that if the Minister has first considered the relevant conditions referred to in s 134(4)(a). Moreover, the Minister must have considered the conditions which the Minister may attach to an approval under s 134 generally. The fact that the Minister must consider the conditions which will attach under s 134 before complying with s 131 indicates that the sections in Part 9 are not to be considered sequentially. That is in accord with our previously expressed opinion that s 132 is engaged prior to the Minister complying with s 131.

64 It is not as clear that the Minister must discharge the obligations in s 134(4)(aa) prior to discharging the Minister’s obligations under s 131. In some cases, of course, the person proposing to take the action or the designated proponent of the action would have provided information to the Minister prior to the Minister exercising the powers under s 131. For example, the person proposing to take the action or the designated proponent of the action might have provided information to the person or body carrying out the assessment process which, in turn, is provided to the Minister. Moreover, the person proposing to take the action or the designated proponent of the action are both persons referred to in s 132 of the EPBC Act and therefore might be persons who the Minister has requested provide the Minister with specified information under that section. There will be circumstances therefore where the persons in s 134(4)(aa) have given information to the Minister prior to the Minister discharging his or her obligations under s 131.

65 Section 134(5) treats s 134(4)(aa) differently from s 134(4)(a) and (b), and specifically provides that a failure by the Minister to comply with s 134(4) does not invalidate the Minister’s decision about attaching a condition to the approval. We think that to be powerful indicator that the legislature intended that the Minister should strictly comply with s 134(4)(a) and (b) before the Minister could make a valid decision under s 133 and s 134. It was put by the Minister that the fact that s 134(5) only applies to s 134(4)(aa) may be explained by the history of the Bill in the Parliament. The original Bill did not contain paragraph (aa) in s 134(4) or (5). That paragraph and that subsection were later added "to ensure that the proponent has an opportunity to comment on what conditions would be appropriate and effective".

66 The supplementary Explanatory Memorandum to which the primary judge referred said:

67 It was contended that because paragraph (aa) of s 134(4) and s 134(5) were introduced at the same time no inference would arise that non-compliance with paragraphs (a) and (b) of s 134(4) leads to invalidity. When s 134(4) was enacted no guidance was given in the EPBC Act as to the effect of a decision which was made by the Minister relating to the attaching of conditions without the Minister first considering paragraphs (a) and (b) of s 134(4). Whether the decision would be invalid if no consideration had been given to those paragraphs would fall to be decided by reference to an examination of the EPBC Act generally. The inclusion of s 134(4)(aa) meant that the Minister had to consider information provided by the person proposing to take the action or by the designated proponent of the action before deciding the conditions which must be attached. We think that at the time that s 134(4) was enacted the legislature intended that the Minister’s decision would be invalid if the Minister did not comply with s 134(4)(a) or (b). We think Parliament recognised that to be the consequence of that failure when it amended s 134(4) to include (aa). By at the same time enacting s 134(5), Parliament intended that s 134(4)(aa) should be treated differently from s 134(4)(a) and (b). If it were otherwise, it would not have enacted s 134(5) simultaneously with s 134(4)(aa).

68 There are other reasons that we think support the conclusion at which we have arrived.

69 Section 136 of the EPBC Act requires the Minister to have regard to matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action and economic and social matters. Specifically, the Minister is obliged to take into account the matters in s 136(2) which include the principles of ecologically sustainable development and whatever report has been provided to the Minister pursuant to Part 8 or the report of the Commissioners of Inquiry pursuant to Part 8, and any relevant comments given to the Minister in accordance with an invitation under s 131.

70 Sections 137, 137A, 138, 139 and 140 deal with the particular provisions of Part 3. Relevantly, s 137 deals with World Heritage, s 137A with National Heritage places, s 138 Wetlands, s 139 threatened species and endangered communities, and s 140 migratory species. Those sections require the Minister to not act inconsistently with Australia’s obligations; for example, in s 137 under the World Heritage Convention; in s 137A an agreement to which the Commonwealth is a party in relation to National Heritage; in s 138 the Ramsar Convention; in s 139 Australia’s obligations under the Biodiversity Convention or the Apia Convention; and in s 140 the Bonn Convention.

72 The only provision in Part 9 relating to the imposition of conditions which is couched in mandatory language but which is said by the EPBC Act itself not to lead to invalidity if breached is s 134(4)(aa). It is our view that is further evidence that Parliament intended paragraphs (a) and (c) of s 134(4) to be observed for the validity of a decision under s 134.

73 We therefore are of the opinion that Parliament intended to treat s 134(4)(aa) differently from s 134(4)(a) and (b), and, when the EPBC Act is understood as we have attempted to explain it, for good reasons.

74 For all of those reasons, in our opinion, the Minister was obliged to have regard to the matters in s 134(4)(a) and (b), and, if the Minister failed to do so, the Minister’s decision was invalid.

75 It was contended by the first respondent that Division 3 of Part 9 which deals with the variation of conditions and the suspension and revocation of approvals was evidence of Parliament’s intention that failure to comply with s 134(4)(a) did not render the Minister’s decision invalid.

76 Section 143 of the EPBC Act empowers the Minister to revoke, vary or add to any conditions attached to an approval under Part 9 in certain conditions. The primary judge concluded that because s 143(1)(c) of the EPBC Act allows conditions attached to an approval to be varied, the apparent purpose of s 134(4)(a) can be achieved without invalidating a departure from it. With respect, we do not agree.

77 The circumstances in which the Minister may revoke, vary or add to any condition to an approval by reason of s 143(1)(c) are limited. Section 143(1)(c) is only engaged where the holder of the approval agrees to the proposed revocation, variation or addition.

78 We do not understand s 143(1)(c) to provide any support for the proposition that a failure by the Minister to comply with s 134(4)(aa) does not render his or her decision invalid.

79 That would be enough to dispose of this appeal but because the parties may wish to have the matter reconsidered we should also deal with the second proposition advanced by the appellants which, as we have already noted, requires an examination of Peko-Wallsend [1986] HCA 40; 162 CLR 24.

81 The relevant consideration must be one that the decision-maker is bound to take into account. The considerations which a decision-maker is bound to take into account are discerned from a reading of the statute. Those considerations may be stated expressly in the statute or may arise by implication. In this case, the consideration not taken into account is expressly stated in s 134(4)(a) and is a consideration that the Minister was bound to take into account. There was no dispute about that on this appeal. However, that is not an end of the matter.

83 The parties disagreed as to the effect of Mason J’s dicta. The appellant contended in the dicta referred to that Mason J was addressing the question of remedy. On the other hand, the respondents contended, and in particular the Minister contended, that Mason J was there addressing whether a particular consideration needed to be taken into account.

84 The proceedings with which the Court were concerned in Peko-Wallsend [1986] HCA 40; 162 CLR 24 were brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by Peko-Wallsend Limited (Peko-Wallsend). Peko-Wallsend claimed that the Minister’s decision was vitiated by error in failing to take into account a relevant consideration, being matters previously advanced by Peko-Wallsend, and that, as a result, the decision at which he arrived was an improper exercise of power conferred by the EPBC Act under which the Minister was acting.

85 The judge at first instance found that the Minister was not obliged to take into account the matters relied on by Peko-Wallsend and that his decision therefore was not in error. In those circumstances, the primary judge did not have to consider whether he ought to exercise his discretion under s 16(1) of the ADJR Act.

86 Peko-Wallsend appealed to the Full Court of the Federal Court which held that the Minister had failed to take into account additional material which had been supplied by Peko-Wallsend and that his failure to do so constituted an improper exercise of power. A majority of the Full Court exercised their discretion in favour of Peko-Wallsend and quashed the Minister’s decision.

87 Justice Mason identified the two questions which arose in the proceedings before the High Court. He said at 37:

88 The discretion to which Mason J was there referring is the discretion given the Court by s 16 of the ADJR Act attending the grant of relief on an application for an order of review. His Honour was not addressing the discretion which rests in the Court in considering whether to issue the constitutional writs after determining a want or excess of jurisdiction in the sense understood in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; The Queen v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 194 per Gibbs CJ; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 106.

89 His Honour then dealt with the first question and it was during his consideration of that question that Mason J made the remarks to which reference has been made above. When the cases which Mason J relied upon for the proposition stated are examined it may be thought that the question he was considering when he made those remarks is whether a consideration must be taken into account, not as to whether relief should be withheld on discretionary grounds. He dealt with that second question commencing on p 47 by following the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504. These observations are subject to what we say in para [94].

90 There are, as Mason J said, two questions. The first question is in two parts: first, did the Minister fail to have regard to a consideration he was bound to take into account; and secondly, was the consideration which the Minister failed to take into account so insignificant that the failure to take that consideration into account could not have materially affected his decision.

91 The second question, which is whether the relief should be refused on discretionary grounds, only arises if the two parts of the first question are respectively answered "yes" and "no".

92 That this is what Mason J meant is actually reflected in his Honour’s reasoning relating to the facts of the case. Briefly stated, the Minister for Aboriginal Affairs had made a grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). The Minister’s decision had been preceded by a report of the Aboriginal Land Commissioner which contained a recommendation. Certain matters were identified in s 50(3) of the Land Rights Act as matters to be commented on by the Commissioner in preparing a report. One matter was the detriment to others if the claim was acceded to and a grant made. In an earlier case, the High Court had decided that the Commissioner was not bound nor entitled to have regard to detriment to others in making the recommendation to the Minister. As Mason J noted in Peko-Wallsend [1986] HCA 40; 162 CLR 24, the only opportunity for a third party to have detriment to them considered was when the Minister was deciding whether the grant should be made. Mason J noted that while the Land Rights Act did not state expressly that the Minister was bound to take into account detriment to a third party, it was to be necessarily implied. Moreover the consideration of that factor had to be on the most recent and accurate information. On the facts of that case the Minister was unaware of critical information concerning the location of an ore body in the claimed area that had been made known to the Minister’s predecessor (as a result of submissions by a third party which had an interest in the ore body) after the Commissioner’s report had been furnished. Mason J considered the significance of this information and concluded at 46:

93 It is apparent from this passage that Mason J evaluated the significance of the factor that had to be considered in determining whether there had been a failure to consider a relevant consideration such as to establish the ground that there had been an improper exercise of power.

94 We shortly discuss authorities in this Court which have considered the observations of Mason J and, in due course, we apply the principles derived from them to the facts of this case. However, what we say should be viewed as subject to a qualification or reservation. It arises from the fact that Peko-Wallsend [1986] HCA 40; 162 CLR 24 concerned a consideration that was not express. It may be more difficult to approach the question of whether the failure of a decision maker to consider a matter expressly required to be considered, on the footing that the significance or insignificance of the matter informs the answer to the question whether there has been a failure to consider it. On one view, if Parliament expressly requires a matter to be considered, then if it is not, there has been a failure satisfying the ground of review. However, we proceed on the basis that the observations of Mason J apply equally to considerations which are expressed in an Act and those which are implied. In view of our ultimate conclusion nothing turns on whether this approach is correct.

95 The appellant contended that the decision of the Full Court of this Court in Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 supported its submission that Mason J was referring in his dicta to remedy. We disagree.

96 In Lu [2004] FCAFC 340; 141 FCR 346 the Full Court was concerned with an appeal from a judge of this Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) for judicial review of a decision made by the respondent Minister under s 501A of the Migration Act 1958 (Cth) (the Migration Act) to set aside a decision of the Administrative Appeals Tribunal and to cancel the appellant’s Transitional (Permanent) visa. No application was made under the ADJR Act. An order in the nature of certiorari was sought to quash the Minister’s decision on the ground of jurisdictional error: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 543.

97 In the Full Court, Sackville J (with whom Black CJ agreed on this point) referred to Mason J’s dicta in Peko-Wallsend [1986] HCA 40; 162 CLR 24 and said at [40]:

98 Justice Sackville then referred in some detail to the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 which was a case involving a consideration of the rules of procedural fairness. The applicant in that case applied for a protection visa which was refused by the delegate of the Minister, which refusal was affirmed by the Refugee Review Tribunal (the RRT). An application for a review of that decision was dismissed by a judge of this Court but the Full Court allowed an appeal from that order of dismissal and remitted the matter to the RRT for determination according to law.

99 After the Full Court of the Federal Court had given its decision, the applicant sent to the Court four handwritten statements which dealt with an alleged agreement with a former business associate of the applicant in Iran. After the matter was remitted to the RRT, the applicant gave evidence before the Tribunal and, during that hearing, the member who constituted that Tribunal told him that the member had read a number of documents including the Federal Court papers. The Tribunal affirmed the Minister’s decision to refuse a protection visa and, in doing so, made a finding inconsistent with the facts which were dealt with in the four handwritten statements which had been submitted to the Federal Court. His application for judicial review of that decision was dismissed by a judge of this Court and an appeal to the Full Court was also dismissed on the ground that the Court had no jurisdiction to set aside the RRT’s decision on the ground that the applicant had been denied natural justice. The applicant thereafter applied to the High Court under s 75(v) of the Constitution for declarations and the for the issue of the constitutional writs claiming that he had been denied a fair hearing because the RRT had represented to him that it would take the explanations given to the Federal Court into account but had not. It was conceded on the application that the four handwritten statements were not before the Tribunal.

100 A judge of the High Court granted orders nisi and the matter came before the Full Court of the High Court for consideration as to whether the orders ought to be made absolute. The prosecutor argued that he had been denied a full and fair hearing by reason of the RRT’s failure to take into account matters which were on the Federal Court file in circumstances where the RRT represented that it would do so. The Minister argued that the prosecutor was not entitled to relief unless the RRT’s error was sufficiently serious to allow the process to be characterised as beyond power.

101 One of the arguments in Ex parte Aala [2000] HCA 57; 204 CLR 82 which was not relevant to the decision in Lu [2004] FCAFC 340; 141 FCR 346 or on this appeal was whether prohibition could issue where a decision-maker had denied a person procedural fairness, the argument being that was an error within jurisdiction, not an error going to jurisdiction.

102 In the alternative, the Minister argued that the Court in the exercise of its discretion should refuse the relief sought which, as we have said, was for declarations and the issue of the constitutional writs. Neither party relied upon the decision in Peko-Wallsend [1986] HCA 40; 162 CLR 24. Chief Justice Gleeson, who agreed with Gaudron and Gummow JJ in relation to the remedies available under s 75(v) of the Constitution, said that the prosecutor had been misled by the RRT’s statement and that he had lost the opportunity to correct the RRT’s view as to his credibility. He said that it could not be concluded that a denial of the opportunity made no difference to the outcome of the proceeding.

103 Justices Gaudron and Gummow identified the threshold questions which were raised by the application respecting the meaning and scope of prohibition in s 75(v) of the Constitution. They said at [17]:

104 On the issue of the discretionary relief, their Honours approved the statement of Gibbs CJ in Ross-Jones [1984] HCA 82; 156 CLR 185 where his Honour said at 194:

106 Their Honours then discussed the private law rights that might apply to a prosecutor who has been refused relief in the exercise of the Court’s discretion.

107 Their Honours said that the Court in considering whether to exercise its discretion must have regard to the principle identified by Gaudron J in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 157 where her Honour explained why the Court gave remedies directed to persons exercising executive or administrative powers.

108 Their Honours pointed out that the statutory obligation which requires a decision-maker to accord a person procedural fairness is based upon a different rationale to that which underpins the doctrine of excess of power or jurisdiction. Their Honours concluded that the prosecutor had been denied the possibility of a successful outcome and prohibition should go notwithstanding the lengthy delay in the bringing of the application.

109 Whilst McHugh J was of the opinion that the prosecutor was denied a fair hearing, he concluded that the prosecutor was not denied the possibility of a successful outcome and concluded that the application to make the orders absolute should be refused.

110 Justice Kirby agreed with McHugh J that the prosecutor was misled by the statement made by the member of the Tribunal and was thereby denied a fair hearing, and had made out a breach of procedural fairness. As such, Kirby J said the prosecutor would ordinarily be entitled to relief. He said that relief would only be withheld if it could be affirmatively established that compliance with the requirements of procedural fairness "could have made no difference". He also agreed with Gibbs CJ’s dicta in Ross-Jones [1984] HCA 82; 156 CLR 185.

111 Justice Hayne agreed with Gaudron and Gummow JJ that whilst prohibition would go for a breach of procedural fairness the issue of the writ is discretionary. He agreed that it ought to issue for the reasons given by Gaudron and Gummow JJ. Justice Callinan was of the opinion that prohibition should issue but not certiorari.

112 It can be seen that Ex parte Aala [2000] HCA 57; 204 CLR 82 was concerned with, as Gaudron and Gummow JJ pointed out, the question whether the denial of procedural fairness was an error made in excess of jurisdiction so that the constitutional writs might issue. The majority was of the opinion if there be a breach the respondent may not gainsay the issue of the writs on the ground that the breach was trivial. However, a discretion reposes in the Court as to whether the writs will be issued in a particular case.

113 It must be noted that Ex parte Aala [2000] HCA 57; 204 CLR 82 was not concerned with the test which Mason J had identified in Peko-Wallsend [1986] HCA 40; 162 CLR 24 as applying where a party is seeking relief under the ADJR Act. Indeed, none of the judges in Ex parte Aala [2000] HCA 57; 204 CLR 82 in their reasons, nor counsel in their arguments, referred to Peko-Wallsend [1986] HCA 40; 162 CLR 24. Ex parte Aala [2000] HCA 57; 204 CLR 82 stands for the proposition that a party seeking the issue of the constitutional writs under s 75(v) of the Constitution is, if a denial of natural justice is established, ordinarily entitled to the issue of the constitutional writs but that a discretion remains in the Court to refuse their issue.

115 We do not understand Black CJ and Sackville J to be saying that the question of the materiality of the breach by the decision-maker to consider a relevant consideration is relevant only to the question of discretion. It must be remembered that Sackville J was addressing the circumstances in which the constitutional writs might issue where a statutory obligation has been proved to have been breached by a decision-maker.

116 More recently, the Full Court of this Court has considered Mason J’s dicta in Martincevic v The Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45, a case involving the discharge of a soldier from Army service. In that case, the applicant applied for judicial review pursuant to the ADJR Act and, in the alternative pursuant to s 39B of the Judiciary Act, for a review of the decision to dismiss him. He claimed that the decision-maker within the Army made his decision without considering a relevant matter which he was bound to consider. The Court said at [59]:

117 It is clear that the Court was there addressing a question of the improper exercise of power. That is clear by reference to s 5(2)(b) and the reference to Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40. The Court went on to say at [67]:

118 Again, we think that the Court was there considering the question as to whether or not the decision-maker has failed to have regard to a relevant matter and had thereby improperly exercised the decision-maker’s power.

120 We think the Full Court approached its decision in conformity with the approach that we have suggested is appropriate and as contended for by the Minister. The first question as to whether or not there has been an improper exercise of power requires a consideration of the two factors to which we have referred: first, whether the decision-maker has failed to take into account a relevant consideration; and secondly, whether the consideration which was overlooked could materially have affected the decision-maker’s decision. The second question involves the exercise of the Court’s discretion.

121 In our view, where in an application under the ADJR Act it is established that the decision-maker has failed to take into account a relevant consideration which he or she was bound to take into account, the next question to be determined is whether the consideration was so insignificant that the failure to take it into account could not have materially affected the decision.

122 If it be concluded that the failure was of that kind, then the application for review must fail. If on the other hand it be concluded that the decision-maker failed to take into account a relevant consideration which was not insignificant and there is a possibility that it could have affected the decision-maker’s decision, the applicant for judicial review under the ADJR Act will be entitled to ask the Court for a remedy under s 16(1) of the ADJR Act. The appropriate remedy is in the discretion of the Court.

123 In every case where a person who is aggrieved by a decision to which the ADJR Act applies makes out any of the grounds for a review in s 5 of the ADJR Act the question of remedy arises and, because of the provisions of s 16, that is always in the exercise of the Court’s discretion.

124 Similar considerations apply when the Court is exercising jurisdiction under s 39B of the Judiciary Act. If the Court concludes that the relevant decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account but the relevant consideration was so insignificant that it could not have materially affected the decision-maker’s decision, the application for the issue of the constitutional writs must be dismissed. If on the other hand the Court concludes that the decision-maker has failed to take into account a relevant consideration which the decision-maker was bound to take into account and the consideration was not so insignificant that the failure to take it into account could not have materially affected the decision-maker’s decision, the applicant seeking relief under s 39B will be entitled to the issue of the constitutional writs subject to the exercise of the Court’s discretion in that regard. The Court will exercise its discretion in accordance with the principles in the cases to which reference has been made: Ross-Jones [1984] HCA 82; 156 CLR 185; Ex parte Aala [2000] HCA 57; 204 CLR 82.

125 It follows, therefore, that the question of materiality as explained by Mason J in Peko-Wallsend [1986] HCA 40; 162 CLR 24 is relevant in a consideration as to whether or not error has been demonstrated on the part of the decision-maker rather than on the exercise by the Court of its discretion in relation to the relief which might be granted under s 16(1) of the ADJR Act or the issue of the constitutional writs under s 39B of the Judiciary Act.

126 The question of discretion is both relevant and important whether relief is to be granted under s 16(1) of the ADJR Act or whether the constitutional writs should issue.

127 Because it is accepted that the Minister was bound to take into account any relevant conditions which had been imposed by the Northern Territory Minister under the law of the Northern Territory in accordance with his obligations pursuant to s 134(4) of the EPBC Act and had failed to do so, the question to be determined on appeal is whether that failure was so insignificant that there is no possibility that it could have affected the Minister’s decision.

128 The Minister was bound to take into account relevant conditions which had been imposed by the Northern Territory Minister for Mines and Energy under s 38(2) of the Mining Management Act. The conditions which were imposed are contained in Schedule 1 to the Conditions of Authorisation issued by the Northern Territory Minister for Mines and Energy. The purpose of the conditions was to establish and set out the operational requirements for an independent monitoring assessment of the environmental performance of the mine.

129 The conditions required the appointment of an independent monitor to undertake the independent monitoring assessment who, after carrying out his or her duties as a monitor, was to report to the operator, the second respondent and the Department any urgent issues requiring investigation and report.

130 The relevant conditions to which the Minister did not have regard are those contained in paragraph 6, 7 and 8 of the Conditions of Authorisation:

131 The conditions which were imposed by the Commonwealth Minister attached to the approval were:

132 It was contended by the second respondent, which contentions were adopted by the first respondent, that the differences in the conditions were so insignificant that there was no possibility that the failure to consider the conditions imposed by the Northern Territory Minister for Mines and Energy could have affected the Minister’s decision. We reject that contention.

133 The conditions imposed by the Minister require the second respondent within six months of the approval to submit to the Minister a Management Monitoring Plan with respect to the freshwater sawfish which must include the matters in the various paragraphs of the condition 2. The conditions imposed by the Minister do not require the appointment of an independent monitor of the kind imposed in the Conditions of Authorisation by the Minister for Mines and Energy. Nor do the Minister’s conditions require the second respondent to cooperate with the independent monitor as the conditions of authorisation imposed by the Northern Territory Minister for Mines and Energy do.

134 It is right as the second respondent has contended that the Minister’s conditions do require monitoring programs. However, what they lack is the obligation imposed by the Conditions of Authorisation on the part of the second respondent to cooperate with the independent monitor as required in condition 6.2 and the obligation contained in condition 6.4.

135 There are very many similarities in the conditions but it is not possible to say, as the respondents must establish, that the difference in the conditions was so insignificant that it could not possibly have materially affected the Minister’s decision.

136 In our opinion, the appellants have succeeded in establishing the first limb of the Peko-Wallsend test.

137 Because the Minister has failed to take into account a matter which the Minister was bound to take into account, the Minister has constructively failed to exercise the jurisdiction given the Minister under the EPBC Act. A failure to take into account a relevant consideration means that the decision was made in circumstances of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 339-340.

138 The question which remains is the remedy that the Court should provide under s 16 of the ADJR Act and whether the constitutional writs should issue on the application under s 39B of the Judiciary Act.

140 Although the grounds for review in s 5(1), (2) and (3) may be declaratory of the common law, the remedies which are available under s 16 of the ADJR Act are much broader than those available at common law. Section 16 allows the Court to quash a decision or part of a decision with effect from the date of the order or from an "earlier or later date". Such flexibility is not known to the common law. Moreover, the remedies which are available under s 16 of the ADJR Act do not recognise any distinction between decisions involving jurisdictional error and decisions made in error within jurisdiction.

141 In Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 at 256, Sheppard and Wilcox JJ (with whom Fox J agreed) said:

142 The differences in the remedies available at common law and under the ADJR Act are relied upon by the respondents who have invited this Court in considering a remedy to provide a remedy under s 16 of the ADJR Act at the date of the Court’s order.

143 The question of remedy has to be addressed in the light of the two findings which we have made. We have found that the Minister has failed to take into account a statutory precondition to the grant of approval under s 133 of the EPBC Act. We have also found that the Minister has failed to take into account a relevant matter which was not so insignificant that there was no possibility that the failure to consider that matter could have affected the Minister’s decision. We have found therefore that the grant of approval and the conditions which issued were made in circumstances of jurisdictional error. The remedy must reflect those findings.

144 The appellants contended that a declaration should be made that the decision was invalid and a writ for certiorari should issue and the decision quashed. A writ of mandamus should issue requiring the Minister to further consider the application according to law. If certiorari issued then the quashing of the decision would mean that the decision was never made which would effectively mean that the decision was void ab initio. The appellants contended in the alternative, if the Court was not prepared to issue a writ of certiorari and the constitutional writs if appropriate and the Court proceeded to a consideration of s 16 of the ADJR Act and quashed the decision at a date subsequent to the making of the decision, the decision should be quashed as at 13 May 2008 which was the date when the second respondent gave an undertaking to the primary judge that it would restore the natural course of the McArthur River in the event that the Court gave judgment in favour of the appellants.

145 The respondents both contended that a declaration should not be made, certiorari should not issue and the constitutional writs should also not issue, but that instead an order should be made under s 16 of the ADJR Act quashing the Minister’s decision as at the date of the order.

146 The second further amended application for an order of review upon which the appellants proceeded before the primary judge was brought pursuant to the ADJR Act and s 39B of the Judiciary Act.

148 No order for certiorari or the issue of the constitutional writs was sought in that application although, clearly enough, the issue of the writ of certiorari would follow a declaration of the kind sought in paragraph (aa) and an application for the issue of that writ is implicit in paragraphs (a) and (b). No order could be made in paragraph (b) without first quashing the decision. So that whilst it is true as the respondents have contended there is no express request for the issue of a writ of certiorari, such a request is implicit in the relief sought.

149 The power to issue certiorari, although not stated in s 39B of the Judiciary Act (or in Chapter III of the Constitution), is implied to complement the express power to issue prohibition and mandamus which is given in s 39B of the Judiciary Act (and Chapter III of the Constitution): Ex parte Aala [2000] HCA 57; 204 CLR 82 at [14].

150 There was no suggestion that the respondents were misled into thinking that the appellants were seeking otherwise than to have the decision quashed and the matter remitted to the Minister for further consideration according to law.

151 Indeed, on the appeal, what was implicit in the second further amended application was put expressly. In the notice of appeal the appellant sought a declaration and the issue of a writ in the nature of certiorari. The orders sought are:

152 On the appeal the appellants have not sought the issue of a writ of mandamus. The appellants have not sought any relief under the ADJR Act.

153 Judicial review is the means by which the rule of law may be enforced over executive action. There is a need to ensure that the executive does not exceed the power given to it by the law at the expense of the interests of an individual. The individual’s rights must be protected: Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 per Brennan J at 70.

155 That statement was approved and adopted by Gaudron and Gummow JJ in Ex parte Aala [2000] HCA 57; 204 CLR 82 at [55].

156 What is the status of an administrative decision which has been made in circumstances of jurisdictional error? In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, Gaudron and Gummow JJ said at [51]:

157 In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at [76]:

158 A majority in the High Court in Plaintiff S157/2002 211 CLR 476 endorsed the dicta of Gaudron and Gummow JJ that a decision which involves jurisdictional error is no decision at all. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, Gummow and Hayne JJ described the dicta at [76] in Plaintiff S157/2002 211 CLR 476 as settled. It can be taken therefore that a decision which involves jurisdictional error has no legal foundation and is no decision at all.

159 It is right, as the respondents contend, that in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 at [42] Gray and Downes JJ said:

161 In Jadwan [2003] FCAFC 288; 145 FCR 1 the Full Court accepted that if a decision is infected by jurisdictional error and the statute under which the decision was made has the purpose that the breaching action should invalidate the decision, the legal consequence is that the decision is void ab initio.

162 In Jadwan [2003] FCAFC 288; 145 FCR 1 the Full Court which made the order which was the subject of consideration by the second Full Court did not make a finding of jurisdictional error. The second Full Court refused to entertain an argument that the decision which was the subject of a s 16 order was infected by jurisdictional error. In those circumstances, the first Full Court’s quashing order operated from the date of the order. The members of the Full Court did not indicate what legal consequences might attach to a decision which has been made in circumstances of jurisdictional error. Nor did they indicate how a particular statute could validate a decision which has been made in circumstances of jurisdictional error.

163 In Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 which was cited with apparent approval by Gleeson CJ in Bhardwaj [2002] HCA 11; 209 CLR 597, Finkelstein J spoke of an invalid administrative decision having operational effect because no one has sought to have it set aside or the Court has refused to declare it invalid for a discretionary reason. He also suggested that the invalid decision may have effect because the statute under which it was made may indicate that it is to have effect even though it is invalid or that it will have effect until set aside.

164 It would seem that the Full Court was referring to that dicta in Jadwan [2003] FCAFC 288; 145 FCR 1. The courts have always recognised that a decision made by an administrative decision-maker which is ultra vires the power reposing in the decision-maker lacks any legal effectiveness. It was often said that the decision was a nullity or void, although these descriptions are neither necessary nor helpful: Bhardwaj [2002] HCA 11; 209 CLR 597 at 613. If the Court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will in conformity with the rule of law treat the decision as having no legal force or effect. Although the decision always lacked any legal effect, the decision-maker was not required to treat it so until the Court so declared. There was no legal obligation on the decision-maker to treat an ultra vires decision as legally ineffective and of no consequence.

165 In other words, even though a decision infected by jurisdictional error was always of no legal effect, a person affected by the decision could not compel the decision-maker to so treat the decision without the Court’s declaration. In a practical sense, therefore, a person who claims that a decision has no legal effect will usually need the Court’s assistance to require the decision-maker to so treat the decision. But simply because the Court’s assistance is required does not make the decision any more effective.

166 The same analysis applies where the Court, having found that a decision-maker has made a decision infected by jurisdictional error, refuses in the exercise of its discretion to issue the constitutional writs. The refusal to issue the constitutional writs means that the Court will not compel the decision-maker to treat the decision as no decision at all. The non-issue of the constitutional writs does not mean that the decision is intra vires or that it has legal effect. If the Court in the exercise of its discretion refuses to issue the constitutional writs, that does not necessarily mean that the person affected by the impugned decision could not bring other proceedings to vindicate that person’s private law rights. In Ex parte Aala [2000] HCA 57; 204 CLR 82 at [53], Gaudron and Gummow JJ said:

167 It is a fact that a flawed decision will usually have a practical effect until the Court declares it to be a decision made in circumstances of jurisdictional error or quashes it. However, because both the decision-maker and any persons affected by the decision so treat it, that does not mean that the decision was ever a valid decision or ever had any legal foundation.

168 We must proceed upon the clear understanding that a decision infected by jurisdictional error is no decision at all as indeed the Full Court of this Court did in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 at 106-107.

169 It was accepted by the Minister that ordinarily where jurisdictional error is established the affected decision is quashed or declared invalid from the date when it was made. However, it was contended that the EPBC Act indicates an intention that an approval decision which is affected by jurisdictional error is not intended to be void for all purposes. The Minister argued that, for example, s 18A of the EPBC Act creates a criminal offence for carrying out certain actions having an impact on threatened species. However, that provision does not apply by virtue of s 19(1) if an approval under Part 9 is in operation. A similar contention was put in relation to ss 20A and 20A(4).

170 We do not accept that because s 19(1) provides that s 18A does not apply to an action if an approval for the taking of the action by the person is in operation under Part 9 of the EPBC Act there is therefore an indication in the EPBC Act that an approval decision infected by jurisdictional error is not void ab initio. The assumption in s 19 is that the approval to which reference is made is itself a valid approval.

171 We do not accept the respondent’s contention that the Act evinces an intention or discloses a purpose that an approval decision tainted by jurisdictional error is to be treated as valid until such time as the Court declares it to be otherwise. There is nothing in the EPBC Act which would allow a decision which has been made in circumstances of jurisdictional error to stand as a valid decision or to stand as a decision which has some legal consequences.

172 It follows that the impugned decision is a decision which lacks legal foundation and is in law no decision at all.

173 Although a jurisdictional error is no decision at all, it does not follow that in all circumstances where jurisdictional error is established the Court will issue a writ of certiorari or the constitutional writs.

174 The remedy of the issue of the writ of certiorari and the constitutional writs is a discretionary remedy. In Ex parte Aala [2000] HCA 57; 204 CLR 82, Gaudron and Gummow JJ (with whom Gleeson CJ agreed) accepted that the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution was stated by Gibbs CJ in Ross-Jones [1984] HCA 82; 156 CLR 185 where his Honour said at 194:

175 The Court will consider whether the constitutional writs should not issue having regard to any delay or waiver or acquiescence or other conduct in the application for judicial review, including any conduct such as bad faith on the part of the applicant in relation to the decision made or in relation to the application for judicial review itself: Ex parte Aala [2000] HCA 57; 204 CLR 82 at [53]- [57]. The Court will also have regard to the availability of any other remedy which may be more convenient or appropriate: Re Heerey; Ex parte Heinrich [2000] HCA 37; (2000) 173 ALR 145. The Court would ordinarily not issue the constitutional writs if the relief would not provide any utility: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; The Queen v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 201.

176 Whilst the constitutional relief is discretionary, a decision to refuse to grant the relief will not be arrived at lightly: Ex parte Aala [2000] HCA 57; 204 CLR 82 at [55]; Ross-Jones [1984] HCA 82; 156 CLR 185. That is particularly so where the applicant is seeking relief by way of judicial review of an administrative decision. There is public interest in ensuring that executive and administrative decision-makers only exercise their statutory powers in accordance with the law which invests them with those powers: Enfield City Corporation [2000] HCA 5; 199 CLR 135.

177 The second respondent put a number of arguments in support of the overall contention that this Court ought in the exercise of its discretion refuse to issue the writ of certiorari or the constitutional writs and instead fashion an order under s 16(1) of the ADJR Act to operate from the date of the order.

178 The second respondent contended that the decision which was arrived at by the Minister was no fault of the second respondent. As such, it was said the second respondent should not be put to the draconian consequences that would follow if the decision were quashed as at the date the decision was made. We are prepared to accept that the second respondent did nothing that led the Minister into error. However, it seems to us that the absence of fault on the part of the second respondent is barely a relevant matter in considering what orders should be made. The point of the remedy is to correct the error made by the decision-maker who failed to make the decision in accordance with his statutory obligations.

179 The second respondent contended the writs should not issue because the applicant should have sought an injunction at an early stage. That contention must be rejected.

180 The applicants moved with appropriate speed in relation to their application for judicial review.

181 On 20 October 2006 the Minister released a media statement in which he said that he had approved the McArthur River Open Cut Mine Proposal. Six days later, the appellants, through the Northern Land Council, requested the Minister to provide a Statement of Reasons for the approval decision. A complete copy of the Statement of Reasons was not provided to the Northern Land Council until 17 January 2007. On 13 February 2007 the appellants filed an application for review seeking orders setting aside the decision of the Minister made on 20 October 2006 and remitting the matter to the Minister for further consideration according to law. The matter came before the Court on 13 March 2007 when directions were given to the parties in relation to the provision of evidence and the hearing of the application listed for 3 May 2007.

182 On the morning of the hearing the application was adjourned until the afternoon pending the passage of the McArthur River Project Amendment (Ratification of Mining) Authority Bill 2007 (NT) which was introduced to negate the decision made by Angel J in the Supreme Court of the Northern Territory declaring the decision of the Territory’s Minister for Mines and Energy to accept the Mining Management Plan and to grant authorisation invalid and quashing the decision.

183 The next day, the appellants provided an amended application and completed their case in chief. On 14 May 2007 the appellants filed a further amended application which abandoned a ground and added a prayer for a declaration that the approval decision of the Minister given on 20 October 2006 was invalid and of no effect. Further directions were made by the Court on 29 May 2007 and the hearing of the matter was resumed on 1 August 2007. The hearing concluded that day. In January 2008 the Court requested further written submissions from the parties and the exchange and presentation of those submissions was completed on 29 February 2008.

184 On 31 January 2008 the appellants’ solicitor wrote to the second respondent’s solicitor seeking confirmation that the second respondent would not commission the diversion channel whilst judgment remained reserved. On 5 February 2008 the second respondent’s solicitor wrote to the appellants’ solicitor and advised that the partially completed works would remain isolated from the existing channel flows during the 2007/2008 wet season and the existing river channel would be kept open during that wet season. The second respondent’s solicitor advised that because the wet season was expected to last until April 2008, there was no reason to mention the matter before the primary judge advising "such a step would be premature and a waste of time and resources".

185 On 18 April 2008 the second respondent’s solicitor advised the appellants’ solicitor that the second respondent could not commit to holding works to commission the diversion channel beyond 9 May 2008. On 29 April 2008 the appellants filed a notice of motion returnable on 6 May 2008 seeking an order restraining the second respondent from commissioning the McArthur River diversion channel. The hearing of that notice of motion was adjourned to 13 May 2008 upon the second respondent giving an undertaking until that date not to further excavate the diversion channel or interfere with the existing course of the McArthur River.

186 On 13 May 2008 the primary judge heard argument on the notice of motion. In his ex tempore reasons his Honour said that "the applicants had acted very promptly upon becoming aware of the stage of the work being undertaken by the second respondent in an endeavour to protect what they regard as a necessary position to preserve their rights." However, he refused the application because the second respondent gave an undertaking in the following terms:

187 The appellants made their position clear from a very early stage. They made it clear that they did not accept the Minister’s decision and they wished to have it judicially reviewed. They prosecuted the judicial review proceedings appropriately and during the period when the judgment was reserved sought an interlocutory injunction when it appeared that such an injunction might become necessary. The second respondent was prompted by that application to give the undertaking to which we have referred.

188 In our opinion, the contention that the appellants should have sought an earlier interlocutory injunction must be rejected.

189 Next it was argued that the Mining Management Act required the second respondent to comply with the authorisation given by the Territory Minister and provided for penalties if it did not comply: s 39. Therefore, once the Commonwealth Minister’s approval was given, the second respondent was obliged to continue with the project. The second respondent, of course, sought the decision which was made by the Minister under the EPBC Act and once it was made carried out work in accordance with the decision. It did not carry out the work because of the obligations imposed upon it by the Mining Management Act but did so because it wanted to expand the mine and that could only be done by diverting the McArthur River.

190 Both respondents contended that if this decision was void ab initio certain consequences could be visited upon the second respondent. The second respondent might be subject to criminal prosecution or subject to claims for a civil penalty. It was said that, in those circumstances, this Court should make an order under s 16(1) of the ADJR Act to quash the decision as from the date of the Court’s order so as to protect the second respondent from those possible consequences.

191 A civil penalty can only be imposed by this Court on an application made by the Minister: s 481 of the EPBC Act. It would be most unlikely that the Minister would seek a civil penalty in respect of actions by the second respondent in accordance with the Minister’s own decision. The likelihood of the second respondent being exposed to civil penalties is very remote. It would also be unlikely that the Commonwealth Director of Public Prosecutions would seek to prosecute the second respondent in respect of actions carried out prior to the judgment of this Court. Whilst some of the offences are offences of strict liability, it is highly unlikely that the Director would prosecute the second respondent in respect to actions taken in accordance with the decision of the Minister.

192 Lastly, the second respondent argued that there was no useful purpose to be served by making the orders retrospective. It coupled this submission with its more general submission that the writ of certiorari and the constitutional writs should not issue because the ADJR Act provides adequate remedies. It contended that the relief under the ADJR Act was "more convenient and satisfactory as it is flexible; rather than simply granting or refusing all or nothing relief, it enables the Court to tailor the relief to the circumstances of the case in a manner that will do justice between the parties".

193 In our opinion simply because the ADJR Act allows a court to fashion an order from a particular date other than the date upon which the decision was made is no reason to refuse to issue the writ of certiorari and the constitutional writs.

194 If the Court made an order that spoke only from the date of the order that would have the effect, it may be assumed, that the McArthur River would remain diverted. The Court can assume by reason of the application for an interlocutory injunction heard by the primary judge on 13 May 2008 that the diversion works are complete. The application at that time was to restrain the second respondent from further excavation at the diversion end to effect a connection between the diversion channel and the McArthur River. It would appear having regard to the undertaking given that the diversion channel has been opened. That being the case, if this Court’s order only operates as from the date of the order, the diversion of the McArthur River would remain complete. There would be no obligation to restore the river to its natural state. No undertaking of the kind given to the primary judge has been given to this Court. In those circumstances, there would be no obligation upon the second respondent to restore the natural flow of the river or remediate the area. The consequence in law would be that the legally ineffective decision has become practically effective. The appellants would be denied any practical relief. That, in our opinion, would not be a just result.

195 It has not been put to us that if the decision were held to be legally ineffective from the date that it was made that the second respondent could not restore the natural flow of the river and remediate the area. The second respondent’s contention, if accepted, would have the practical effect of denying the appellants any relief. The contention is rejected.

196 There is no suggestion that any of the other factors which might prompt a court to exercise its discretion against a party who has successfully established that a decision has been made in circumstances of jurisdictional error exist or have been made out.

197 In those circumstances, it is our view that a declaration ought to be made and an order in the nature of certiorari also ought to be made. There should also be an order remitting the second respondent’s application for approval to the Minister for further consideration according to law.

198 The primary judge made an order on 5 September 2008 that the applicants pay the first and second respondents 25 per cent of their costs of the proceeding but not to include the costs of the applicants' notice of motion of 29 April 2008. That order should also be set aside and in lieu thereof there be an order that the respondents pay the applicants' costs of the proceeding.

BETWEEN:

AND:

COMMONWEALTH MINISTER FOR ENVIRONMENT AND HERITAGE
First Respondent

MCARTHUR RIVER MINING PTY LTD
Second Respondent

200 This is an appeal from a decision of a Judge of the Court dismissing an application made, under the Administrative Decisions (Judicial Review) Act 1977(Cth) and s 39B of the Judiciary Act 1903 (Cth), to challenge the validity of a decision of the Commonwealth Minister for Environment and Heritage ("the Minister") under s 133 of the Environment Protection and Bio-Diversity Conservation Act 1999 (Cth) ("the EPBC Act"). That decision was made on 20 October 2006 when the Minister approved a proposed action by McArthur River Mining Pty Ltd ("MRM") to convert an underground lead and zinc mine to an open-cut mine with associated works including diversion of the McArthur River ("the decision").

201 The underground mine as operated prior to the decision is adjacent to the McArthur River about 740 kilometres south-east of Darwin in the Gulf region of the Northern Territory. It is upstream of the town of Borrolwola. It is 100 kilometres inland from the mouth of the Bing Bong Creek on the Gulf of Carpentaria, and all concentrate recovered from the mine is shipped from a port at the mouth of that creek. The McArthur River flows across the site of the proposed open-cut mine and the proposed expansion of the mine and conversion approved by the decision includes a proposal to divert the course of the river 5 kilometres around the site of the open-cut mine.

202 The applicants are several Native Title Claim Groups with Native Title determination applications under the Native Title Act 1993 (Cth) ("Native Title Act") over land in the vicinity of the mine and over land through which the McArthur River flows. The claims include a claim over the McArthur River Project area and areas upstream and downstream of it. The town of Borrolwola is surrounded by Aboriginal land granted under the Aboriginal Land Rights (Northern Territory) Act 1976 and includes land which abuts on the north-eastern boundary of the McArthur River pastoral lease, and which also abuts the western boundary of that lease. In addition, the island in the Gulf of Carpentaria at the mouths of the McArthur River and the Bing Bong Creek is also Aboriginal land. The beds and banks of the McArthur River from its mouth to the land grant around Borrolwola and the inter-tidal zone of the Bing Bong Creek have been recommended for grant by the Aboriginal Land Commissioner. The applicants have strong concerns over the potential environmental impacts of the proposed action, in particular arising from the diversion of the McArthur River, which includes possible impacts on fish and migratory bird species in the region.

204 The following factual background is taken from the submissions of the applicants on appeal which is not in dispute.

205 McArthur River Mining Pty Ltd (MRM) is the operator of a lead and zinc mine site adjacent to the McArthur River, which runs through the town of Borroloola in the Gulf Region of the Northern Territory. The project area is the subject of mineral leases granted under the McArthur River Project Agreement Ratification Act 1992 (NT) to which, under s 46 of the Native Title Act, the non-extinguishment principle applies. The Appellants, on behalf of certain groups, claim native title to the project area and other upstream and downstream areas.

206 The Commonwealth and the Northern Territory entered a bilateral agreement under Part 5 of the EPBC Act to provide that actions need not be assessed under Part 8 if assessed in the manner specified in Schedule 1 to that agreement. The agreement is expressed to commence upon amendment to the assessment processes prescribed by the Environmental Assessment Administrative Procedures 1984 (NT), under the Environmental Assessment Act 1982 (NT), relating to the making and consideration of public comments on assessment documentation.

207 In February 2003 a proposal was referred to the Commonwealth Minister for the Environment and Heritage (the Minister) under s 68 of the EPBC Act for a decision on whether a change from underground to open pit mining at McArthur River, which includes diversion of the river, is a "controlled action" for the purposes of the Act.

208 On 4 March 2003 a delegate of the Minister decided under s 75 of the EPBC Act that the proposal is a controlled action and that ss 18-18A (listed threatened species and communities) and 20-20A (listed migratory species) are the controlling provisions of Part 3 of the Act for the proposed action. The s 75 decision followed consideration of the adverse impacts the action would have or was likely to have on the matters protected by Part 3 of the Act, relating to impacts on the threatened freshwater sawfish and on the downstream and estuarine habitats of listed migratory birds.

209 On that date the Minister’s delegate, pursuant to s 77 of the EPBC Act, gave the Northern Territory Minister for the Environment and Heritage notice of the s 75 decision, and sought advice as to whether the bilateral agreement was applicable. The Commonwealth Minister’s delegate informed the Territory Minister that if the agreement was not applicable, an assessment approach required under the EPBC Act would be determined, which might include one-off accreditation of the processes under the Environmental Assessment Act 1982 (NT).

210 On 2 April 2003 the Territory Minister notified the Commonwealth Minister that the bilateral agreement had commenced on 19 March 2003, upon amendment to Environmental Assessment Administrative Procedures 1984 (NT), and advised that it was the Territory’s intention that the action be assessed under Territory assessment processes accredited by the bilateral agreement. The Commonwealth Minister accepted that position.

211 In August 2005 MRM released a draft environmental impact statement (the draft EIS) for public comment which (i) noted the presence of threatened species in and near the project area; (ii) considered possible fauna impacts of the project; and (iii) in respect of migratory bird species, suggested that none of those species are likely to be significantly affected by the project.

212 In respect of aquatic ecology, the draft EIS noted that, in most dry seasons, stretches of the Macarthur River dry to a series of large isolated pools that provide refuge for aquatic ecology. These pools include Eight Mile Waterhole, about 8 kilometres upstream of the mine project area, and Djirrinmini Waterhole, about 1 kilometre upstream of the proposed river realignment. The draft EIS noted that freshwater sawfish had been recorded in the McArthur River system in the past. It identified possible impacts on that species from river and creek realignments, downstream water degradation, drawdown effects on permanent refuge pools, and changes in stream flow volumes. The draft EIS concluded that:

213 In December 2005 MRM released a supplement to the draft EIS, taking into account public comments. The supplement proposed a survey of sawfish populations and the formulation of a detailed management and monitoring plan based on the results.

214 On 23 February 2006 a notice under s 130(1B) of the EPBC Act and Assessment Report 51 (AR 51) were sent to the Commonwealth Minister by the Territory Environment Minister, pursuant to the bilateral agreement. AR 51 reported that there was not sufficient information to assess the impacts of the proposed action on freshwater sawfish and migratory birds, and contained a single recommendation from the NT government: that the proposal as currently outlined in the draft EIS and its Supplement does not proceed. (Emphasis added.)

215 The notice from the NT Minister records the detailed process undertaken, and the sources of information accessed to obtain information as to the likely impacts of the proposed action. There was notification by the NT Minister that the impacts were assessed based on an environmental impact statement (EIS) submitted by the proponent, and assessed pursuant to the NT Environmental Assessment Act 1982 and the administrative procedures made under the Environmental Assessment Act 1982. The notification records that draft guidelines were prepared by the former Office of Environmental Heritage and advertised for a two week period to enable the public and government to provide comment on the issues to be addressed.

216 The notification also records that the draft EIS document and all information supplied by the Applicant on environmental characteristics were advertised for public comment and provided to those in the relevant areas of expertise within the NT government agencies for comment over a ten week period. Further information was gathered by site visits to assess the proposal, and meetings were held with the proponent. Submissions were received from government departments and from the Northern Land Council, the Environment Centre of the Northern Territory, the Amateur Fisherman’s Association of the Northern Territory, and other groups.

217 After these submissions were obtained the proponent prepared a supplement to the EIS to address comments contained in the submissions. The supplementary EIS was distributed to NT governmental agencies and other respondents to the draft EIS, and they were advised on the proponent’s response to the submissions. Information was received in relation to the draft EIS and in respect of the supplementary EIS and this was taken into consideration in preparing the Assessment Report for the proposal.

218 The Northern Territory Environment Protection Agency (TEPA) commissioned a review of the proposal to divert the Macarthur River and associated creeks from an independent expert Geo Morphologist and that advice was taken into account in preparing the report. All information from these sources was collectively used to facilitate the Northern Territory Government’s assessment. The Minister then approved the Assessment Report’s recommendation that the proposed action should not be approved.

219 On 16 March 2006 a delegate of the Minister informed MRM that, having considered AR 51 and the supporting documentation, there was insufficient information to make an informed decision on whether or not to approve the action under Part 9 of the EPBC Act. Pursuant to s 132 of the Act, the Minister requested that MRM provide:

MRM was advised that the statutory time for an approval decision was suspended and would restart once the requested information was received.

220 In March 2006 the Northern Territory Minister for Mines and Energy requested that MRM lodge an amended proposal directed toward additional information required to satisfy the Territory as to the impacts of the proposed action. The Territory Environment Minister decided that the amended proposal would be assessed under the Environmental Assessment Act 1982 (NT) by a public environment report (PER).

221 On 4 July 2006 MRM informed the Commonwealth Minister that a PER had been lodged with the Territory and would be available to the public for 28 days, and that the information sought by the Minister’s delegate in the s 132 request had been covered in parts of the PER dealing with the river diversion and freshwater sawfish assessment.

222 The PER noted that a survey of freshwater sawfish was undertaken which included the capture of one sawfish at Eight Mile Waterhole. An appended survey report noted that the capture supported the theory that juveniles migrate upstream during the wet season and highlighted the importance of upstream refuge pools. In respect of Djirrinmini Waterhole, the report considered that:

223 In respect of proposed monitoring programs for aquatic ecology, riparian birds and migratory birds, the PER stated that:

224 On 1 September 2006 the Territory Environment Protection Agency (TEPA) informed the Commonwealth Minister’s Department that assessment of the project was concluded. TEPA provided a copy of Assessment Report 54 (AR 54), which contained the findings of the assessment of the PER, and concluded that the additional information provided by MRM in the PER and the receipt of AR 54 meant that under s 130(5)(b) of the EPBC Act the time for the Commonwealth Minister to grant approval under Part 9 of the Act had recommenced.

225 AR 54 records that comments on the PER were received from the public, and that additional information sought by the Minister under s 132 of the EPBC Act had been included in the PER. No supplement to the PER was prepared to take into account public comments. AR 54 reported that:

226 AR 54 noted that the approach adopted by the company required a heavy reliance on rigorous monitoring, and a clear and agreed understanding of trigger points for action (which in turn requires a good understanding of ecological implications of any impacts of the mining operation). The PER, it was said, did not demonstrate that this approach is backed up with appropriate levels of knowledge and understanding.

227 The document also reported that the absence of a baseline study of dispersal of freshwater sawfish in the McArthur River system was "a notable limitation in the material presented" and that a dispersal study could serve as a baseline against which use of the diversion channel could be monitored. In addition to impacts on the migration of the freshwater sawfish from the river realignment, AR 54 considered the impacts of water drawdown in Djirrinmini Waterhole, particularly during the late dry season, and the risk of downstream estuarine delta contamination, and reported that:

228 Noting that uncertainty about possible risks to biodiversity values in the coastal and marine environments around the lower McArthur River meant that the project should include a substantially enhanced monitoring program, the report said that:

229 It further said that shortcomings relating to the design of the river diversion contained in the EIS and supplement had been addressed.

230 On 13 October 2006 the Northern Territory Minister for Mines and Energy granted authorisation 0059-02 under the Mining Management Act 2001 (NT) to approve the open cut mining operation. The authorisation required MRM to comply with the commitments contained in a mining management plan and imposed independent monitoring assessment conditions for the mine’s environmental impacts.

231 On 17 October 2006 the Territory Mines Minister informed the Commonwealth Minister that, being satisfied that MRM’s mining management plan addresses environmental issues, the Territory Minister had approved the open cut proposal under the Mining Management Act and that a copy of the mining authorisation and letter of approval to MRM of 13 October 2006 had been emailed to the Commonwealth Minister’s Department.

232 On 17 October 2006 the Commonwealth Minister’s Department received a copy of the mining management plan for the period October 2006 to October 2007 (the MMP). It contains a table of commitments made by MRM that includes a section titled "Biology" dealing with proposed monitoring and surveys of migratory birds and of fish distribution, and aimed at establishing the effects of the river diversion.

233 On 20 October 2006 the Minister granted an approval under s 133 of the EPBC Act, subject to conditions, for MRM to conduct the open cut mine. That followed a briefing to the Minister which included a statement of the Minister’s obligations for decision making under Part 9 of the EPBC Act, which identified the materials considered in the approval decision by reference to requirements of the Act.

234 The briefing stated that, following the EIS and AR 51, to address outstanding issues "a second round of assessment was conducted", based on a PER and that "assessment under the [EPBC Act] was stopped in the approvals stage," and MRM asked to provide further information. The briefing stated that the PER was "the mechanism by which the additional information for EPBC approval consideration was provided", and that its conclusion that the action will not have a significant adverse impact on the freshwater sawfish was "supported in the second NT Assessment Report."

235 The briefing recommended the Minister approve the taking of the action, subject to conditions. The conditions attached to the approval include:

236 On 19 December 2006 the Minister gave reasons for his decision, which included the statement that:

237 In his reasons, the Minister states that in order to satisfactorily respond to the s 132 request, MRM had provided a copy of the MMP to his Department, and that the approval briefing included a Supplementary PER and a copy of the MMP.

238 Part 3 of the EPBC Act, in particular ss 18, 18A, 20 and 20A prohibit actions which are likely to have significant impacts on threatened species and migratory species unless the approval process under Part 9 of the Act has been undertaken. That Part sets out a process for making decisions on approvals and the imposition of conditions in relation to "controlled actions."

239 A "controlled action," as defined in s 67 of the Act, is any action prohibited under Part 3 without approval. Under s 68 where a person thinks that an action might be a "controlled action" it must be referred to the Minister for decision as to whether it is a "controlled action".
Section 75 of the Act requires the Minister to decide whether an action which is the subject of a proposed operation is a controlled action and which provisions of the Act are controlling provisions. On 4 March 2003 the Minister decided that the action proposed by MRM was a "controlled action," and designated sections 18, 18A, 20 and 20A of the Act as the controlling provisions. He found that 31 listed migratory bird species and 6 listed threatened species were likely to be in the vicinity of the site and affected by the works.

240 As a consequence of the designation of the MRM action, Part 8 of the Act, which provides for impact assessment of controlled actions, was enlivened. The purpose of Part 8 is to enable the Minister to obtain information on which he may make a decision whether to approve the controlled action. Section 132 recognises that the Minister may reasonably believe he has not enough information and can therefore seek further information in supplement, without following the public participation process. On the approach taken by the appellants, s 132 must be read as applicable only to Assessment Reports which are not required to obtain enough information to enable the Minister to make a decision. This is an unnatural construction and sits uncomfortably with the overall statutory scheme. Section 136 provides that, in considering the approval of the taking of an action, the information in the Assessment Report is only part of the information which the Minister takes into account for the purpose of making a decision.

241 Section 81 of the Act provides that the assessment powers under Part 8 apply to the assessment of relevant impacts of actions which the Minister has decided are controlled actions. That section is subject to s 83, which provides an exception, namely that the assessment process under Part 8 does not apply to an action if:

242 The effect of s 83 is central to the determination of the first issue on appeal, namely whether the provision has an ambulatory operation such that it can displace the operation of the Part 8 process after the assessment process under that Part has been engaged.

243 Section 47 is important in relation to this first issue because it provides for agreements between the Commonwealth and a Territory which have the effect of declaring that certain classes of actions do not need further assessment. It provides that a bilateral agreement may declare that a class of action, identified by the fact that it has been assessed in a specified manner, need not be assessed under Part 8 (see ss 47(1)). The section also provides (ss 47(4)) that a bilateral agreement must provide for the Minister to receive a report including or accompanied by enough information about the "relevant impacts" of the action to let the Minister make an informed decision whether or not to approve under Part 9.

244 Section 45 gives the Minister power to enter into a bilateral agreement with a State or Territory. The relevant bilateral agreement was in this case made between the Commonwealth and the Northern Territory on 31 May 2002. Clause 10(1) of the agreement provides that any action assessed in the manner set out in the agreement does not require assessment under Part 8. That agreement came into force on 19 March 2003, which was 15 days after the Minister had decided that there was a "controlled action" when he also specified the controlling provisions pursuant to s 75.

245 The applicants say in substance that there has been no valid assessment by the Minister of the "controlled action" in this case because an impact assessment should have been made under Part 8 of the Act, whereas it was made pursuant to the Bilateral Agreement. They say that Part 8 was engaged on 4 March 2003 and that the process under that Part could not be displaced as a consequence of the later entry into effect of the Bilateral Agreement on 19 March 2003.

246 In response the Minister and MRM submit that, as at 19 March 2003, the effect of s 83 was to remove the approval process from Part 8 and substitute the process to be carried out in accordance with the Bilateral Agreement.

247 The second issue is whether Assessment Report 51 (AR 51) was an "assessment report" within the meaning of s 133 of the Act, which provides that the Minister after receiving an assessment report relating to a controlled action may approve the taking of an action. An assessment report is relevantly defined (in s 130(2)) to be a report given to the Minister as described in s 47(4). As noted earlier in par [243], that provision refers to a report which must include or be accompanied by "enough information" about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve, under Part 9, the taking of the action for the purpose of each controlling provision.

248 It is said for the applicants that AR 51 did not, on its face, provide "enough information" and that therefore the condition precedent to the Minister’s approval power had not been satisfied.

249 Section 132 is concerned with obtaining further information and provides that if the Minister, on reasonable grounds, believes that he or she does not have sufficient information to make an informed decision whether to approve he or she may request specific information from (i) the proponent; (ii) the persons proposing to take the action; or (iii) a Commission of Inquiry. In this case the Minister sought and received further information from MRM before granting approval.

250 The applicants contend that s 132 has no application and cannot cure an information deficiency in AR 51 where there is, in the Minister’s view, insufficient information. They submit that to apply s 132 where there is a failure to comply with s 47(4) is not open because it could circumvent the detailed public participation in the Assessment Report process. They contend that the subsequent information furnished in what has been described as Assessment Report 54 did not cure the insufficiency and the approval was inoperative because it did not comply with the mandatory requirements for an assessment report.

251 Section 134(4) requires the Minister, when deciding whether to attach a condition to an approval, to consider:

252 Section 134(5) provides that a failure to consider information, provided by the person proposing to take the action, or by the designated proponent of the action, does not invalidate a decision about attaching a condition to the approval. However, this provision only relates in consideration to sub-paragraph 5(aa) and not to either of the other two conditions (a) and (b) set out in [251] above.

253 One submission made for the applicants is that, because it is established that the Minister did not take into account relevant conditions imposed under a law of the Northern Territory on the application, the decision is ineffective, and they submit that ss (5) does not cure this because it only relates to information provided by a person proposing to take the action or by the proponent. Indeed, they say that the express reference to only one of the three relevant matters indicates that, without such a saving clause in respect of paragraph (a), the purpose of the legislature in enacting s 134(4) was to invalidate the decision about attaching a condition to the approval in the event of failure to comply. If that decision as to conditions is held to be ineffective then it is common ground that the approval also is ineffective.

254 The argument is that on 4 March 2003 Part 8 of the Act was applicable but that on 19 March 2003, when the bilateral agreement was pronounced to have commenced (letter from the Northern Territory of 2 April 2003), the effect under s 83 of the Act was to suspend the operation of Part 8 and bring the proceedings under Part 9. The challenge is that this cannot be done and there can be no displacement or disengagement of Part 8 once it has been enlivebed by reason of a bilateral agreement coming into operation.

255 On this point the reasoning of Hanks QC, counsel for the first respondent, is persuasive He submits that, having regard to the definitions of relevant Acts and the need to assess the relevant impacts and having regard to the literal wording of s 83, there is no room to imply restrictions of the type foreshadowed. It is only after a decision of the Minister under s 75 that an action is a controlled action and controlling provisions are specified that it is possible to begin assessing the relevant impact. The controlling provisions in ss 18, 18A, 20 and 20A, once designated, call for investigation, and these constitute the federal element in the exercise. It will undoubtedly take a considerable time before that assessment has been completed.

256 Accordingly, the submission that s 83 did not apply because it only applies where there has been an assessment made in a manner specified in the bilateral agreement, should be rejected.

257 The question is essentially one of timing. If the bilateral agreement had come into effect before 2 March 2003 then the applicants concede they would have no case. It is only the fact that it came into operation after 4 March 2003, on 19 March 2003, that there is a case. The inconvenience that may be caused is that a Part 8 investigation may be underway and then displaced or dislocated – but the benefits of the investigation would not be lost entirely. Moreover, this is what the Commonwealth and Northern Territory Government contemplated by the bilateral agreement, and the Minister under the Federal Act has committed himself to this position.

258 Accordingly, on the first point I would find for the respondent Minister and the second respondent.

REASONING ON SECOND ISSUE – S 133 – WHETHER THE MINISTER RECEIVED AN ASSESSMENT REPORT

259 The appellants submit that there was no "assessment report" as required by s 133 of the Act because, objectively considered, there was not "enough" information in the report received by the Minister described as AR 51. They say that the existence of an assessment report with "enough information" to let him make an "informed decision" was a condition precedent to the exercise of the Minister’s power and because this requirement was not satisfied there was no operative decision. Any insufficiency of information, they say, could not be cured by using the procedure provided by s 132, and the question whether there was enough information was an objective one for the Court to examine.

260 The appellants refer to the letter from the Minister to MRM of 16 March 2006, in which the Minister states that there is insufficient information to enable an adequate assessment of the impacts on the freshwater sawfish, and seeks information as to the potential impacts associated with the realignment of the McArthur River and Borney Creek together with an assessment of the potential impacts on the vulnerable freshwater sawfish. The Minister observes that the statutory time for a decision as to approval would be suspended in accordance with s 130(5) EPBC Act. This subsection provides that where the Minister has requested more information in order to make a decision whether or not to approve, time for the purpose of making a decision to approve an action which is the subject of an assessment report is suspended after the day of the s 132 request up to the time when the Minister receives the last of the information. Under s 130(1) the time period for a decision to approve runs from the first business day after the day when the Minister receives the assessment report.

261 At the time when the decision was made in this case the appellants submit that the Minister, even with the additional material, did not have an assessment report as required by s 133. They submit that after receiving AR 51, in circumstances where the Minister has accepted that not all the relevant impacts could be assessed, it was not open to the Minister to use s 132 to supplement the information because, in doing so, he obtained further information without the public participation provided for in Part 8, which requires public comment and responses, and this was not a procedure open to remedy deficiencies in a report which did not satisfy either s 47(4) of the Act or the Bilateral Agreement, particularly cl 10 and Schedule 1 cl 6 thereof.

262 The appellants say that because in this case the decision to approve was made using s 132 EPBC Act, the objectives set out in ss 3(2)(g) of the Act, particularly involving the community in management planning, have been circumvented, and the requirements of the Bilateral Agreement have not been met.

263 In response, the Minister says that the question whether a report includes or is accompanied by "enough" information about the relevant impacts of the action to make an informed decision as to whether to approve or disapprove under Part 9, is a question of fact and degree for the Minister, and is not an objective question which is reviewable by the Court on its merits. The Minister accepts that it must be reasonably open to him after considering the information in the report to form a view whether he has enough information to make a decision and says that the decision to approve was open.

264 In this case the Minister reasonably formed the view that he did not have enough information on some impacts but has since taken steps to obtain further information and after considering the initial report together with the further information he has made a decision to approve the action on 20 October 2006. The Minister says it is apparent that after seeking further information and using s 132 he must be taken to have concluded at the time of the decision that AR 51, together with or accompanied by the additional information, was "enough" to make an informed decision.

265 The relevant principles concerning the difference between an objective fact which can be reviewed by a Court and an opinion of the Minister as to the existence of a fact, as a condition precedent to the exercise of a power under the EPBC Act, was recently considered by the Full Court in Anvil Hill Project Watch Association Ltd v Minister for Environment and Water Resources [2008] FCAFC 3; (2008) 166 FCR 54 at [14]- [32]. The Court concluded in that case that the Act did not require an objective determination as to the existence of the fact in question such as would be capable of giving rise to jurisdictional error. See also Sutherland Shire Council v Finch [1970] HCA 49; (1970) 123 CLR 657 at [666]; and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSW LR 55 at [31].

266 In this case the information on which the Minister made his decision was the initial AR 51, which had been the subject of public participation, and included the further supplementary information received as a result of the Minister’s use of s 132. The Minister treated AR 51 as an assessment report in respect of which he required further information. When he received such further information as he considered sufficient to enable him to make an informed decision he proceeded to make the decision, so that any initial deficiency was remedied by the further information.

267 The information on which the Minister is required to make the decision is nowhere expressly limited to that in an assessment report which has undergone the public process. Other information, for example, which is not subject to the assessment report process, can be taken into account under ss 131 and 136. It is to be noted that the Minister under s 136 must take into account comments from other Ministers under s 131. Section 136 further contemplates that a Minister may obtain and take into account additional information beyond that contained in the assessment report as to the decision proposed. This supports a conclusion that a decision to approve or not approve can be based on further information not in the assessment report and which has not been the subject of assessment procedure or public participation. In particular, s 136(2) reinforces the view that there can be a decision which takes into account material not contained in the assessment report: see 136(2)(a), (c), (d) and (e) EPBC Act. It is not therefore correct to contend that s 132 is not available because it does not provide for public participation in circumstances where the Act provides for further information without such involvement.

268 Furthermore, the language used in the above provisions does not in terms or impliedly require that an assessment report cannot be supplemented by further information as under s 131 or s 132. Nor is there any provision which prevents the Minister seeking such further information as considered necessary. There is no apparent reason why the Minister should be prohibited from obtaining such further information as he considers appropriate to perform his statutory duty of deciding whether to approve. The Minister is the person best placed to know whether he has "enough information" to make an informed decision. It is fitting, given the wide range of the Minister’s powers and discretions, to adopt a liberal and expansive view as to the range of information the Minister can consider necessary or appropriate. In the present case he obviously formed the view that he initially did not have enough information, and then proceeded to obtain it before making his further informed decision.

269 I do not accept the submission that, because the initial report itself included an assertion that there was not enough information, it must therefore be concluded that the report could not be properly characterised as an "assessment report" as referred to in s 133. Such a statement in the report cannot be determinative of the question of whether the proper characterisation of the report, as supplemented and on which the decision was eventually made, was an "assessment report".

270 Counsel for MRM has provided the court with detailed references to documentation in the Appeal Books which record the extensive information referred to in AR 51 and in the documents used in its preparation. In particular AR 51, while finding there was not sufficient information, states that it cannot make a more informed decision on the nature of the potential impacts associated with the river diversions. The report also refers to the freshwater sawfish and notes that it is endangered. In relation to the sawfish, the conclusion reached in the report was that there were insufficient details as to managing, monitoring and mitigating potential impacts, and concludes that, in the absence of base line surveys and monitoring, an adequate assessment of the potential impacts on the sawfish could not be made at this point in time.

271 The report also discusses other threatened and near-threatened species and deals with migratory species, in particular the white-browed Robin. In respect of these a conclusion is reached that the EIS does not provide adequate information to assess potential impacts on migratory species as a result of, for example, the Bing Bong Port operation. The report is critical of the EIS and refers to concerns as to potential contamination of the coastal areas, an issue which the report says was poorly addressed in the EIS. The report also says that there was inadequate sampling performed, and refers to the sampling that did occur which indicated an uptake of ore-derived lead in sediments immediately to the west of the facility and in molluscs and seagrass. It also refers to a monthly seawater and marine sediment sampling program, and to the fact that the monitoring program would need to consider migratory birds.

272 It is evident from this material that the impacts on the sawfish and the migratory birds in this case were not simply ignored or overlooked. The possible impacts were raised and initially it was considered there was not enough information to reach a conclusion on the impacts. In my view s 132 is directed to these circumstances where there is an assessment report but the report is considered by the Minister to have insufficient information with the consequence that the Minister is enabled to seek the information considered necessary to make the decision without further public participation.

273 As counsel for the respondents points out, s 47(4) of the Act, which describes an "assessment report", provides for the Minister to receive a report which includes or is accompanied by enough information as to the impacts to let the Minister make a decision. This supports the view that it is possible to have an assessment report supplemented by other material which is not part of the "body" of the report. The provisions contemplate a report which may not initially have all the relevant information but which at the time of the decision is accompanied by enough further information for the Minister to make the decision on the report and the material which accompanies it at the time of the decision. When he made his decision, it can properly be said that the Minister had considered that he had an assessment report accompanied by sufficient information to let him make the decision.

274 It is true, as counsel for the appellants observed, that information obtained pursuant to s 132 is not subject to the public participation process required under the Bilateral Agreement for an assessment report. In principle public participation is generally a desirable step, but it is not one for which s 132 provides. Section 132 does not refer to or require public consultation as a step in the process of obtaining or using the further information. Counsel for the respondents points out that the appellants’ argument, in substance, is based on dissatisfaction with the statutory scheme in not providing for public participation in s 132 rather than with its application in the present case. The appellants say that s 132 should not be read to allow supplementary information without public input. However, in terms, the section provides the means of obtaining supplementary information independently of and apart from the implementations of a new or further public assessment report process.

275 In my view, the primary judge was correct in concluding that there was an assessment report in existence within the meaning of s 133 at the time of the decision and I do not accept the appellants’ submissions on this point.

276 Section 134(4)(a) EPBC Act relevantly requires the Minister, when making a decision whether to attach a condition to an approval, to consider ‘any relevant conditions’ imposed under a law of a self-governing Territory on the taking of the action. It is common ground that the Minister did not do so in this case. The question raised is whether the consequence of this failure is that the decision to approve is invalid on the ground (i) that it is contrary to the Act and/or (ii) on the basis that there has been a failure to take into account a relevant consideration. If the decision is declared invalid or ineffective for either reason, a further question arises as to the date from which any order should operate.

277 Section 143 empowers the Minister to attach conditions to an approval of an action if he or she sees fit. It confers on the Minister a discretion to attach such a condition if satisfied that the condition is necessary or convenient for the purposes specified in ss (1) and (2). Subsection (3) provides that other specified types of conditions may be imposed but expressly "does not limit the kinds of conditions that may be attached to an approval". In other words, the Minister has a broad discretion to attach any type of condition which he or she is satisfied may be considered relevant or appropriate.

278 Section 134(5) was inserted into the Act at the same time as s 134(4)(aa). As Moore and Lander JJ state in their reasons on this appeal, the broad issue for this Court is whether it is a purpose of the Act to render invalid any decision of the Minister to grant approval where the Minister fails to consider the conditions set out in par 4(a) of s 134, or whether notwithstanding the Minister’s failure to consider these matters, the Minister’s decision remains valid. This involves a question of statutory interpretation.

279 The controlling principles relevant in relation to a claim of invalidity for breach of a legislative requirement are found in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that case the question was whether failure to comply with s 160(d) of the Broadcasting Services Act 1992 (Cth) had the consequence that the decision to grant the licence was thereby rendered invalid. The case related to "Australian content" and the subsection required the Australian Broadcasting Association (the "ABA") to "perform its functions in a manner consistent with Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country". The Court held that it was not a purpose of this provision that breach should invalidate any act involving that breach, and that actions taken under the licence were not thereby invalid. At [97] McHugh, Gummow, Kirby and Hayne JJ said:

280 At [99]-[100] their Honours, after referring to the functions of the ABA in relation to allocation and renewal of licences and the administration of price-based systems for allocation of broadcasting licences, said:

281 In support of the above proposition in Project Blue Sky concerning inconvenience, their Honours cite the decision of the Privy Council in Montreal Street Railway Co v Normandin [1917] AC 170 at 175 where the Privy Council said:

282 This well-settled principle has been adopted and applied in Australia in many cases including: Attorney General v J. N Perry Constructions Pty Ltd (1961) 71 WN (NSW) 235; Attorney General (NSW) Ex Rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 at 964; 978, and 989 and T V W Enterprises Ltd v Duffy (No.3) [1985] FCA 382; 1985 8 FCR 93.

283 Although some of these decisions refer to the concepts of ‘mandatory’ and ‘directory’, the decisions proceed on the basis that it is a question of statutory interpretation in each case whether the legislation discloses a purpose to nullify the decision or actions carried out pursuant to the challenged decision.

284 In applying those principles to the present case the Court is informed by the Objects of the Act. Among the Objects of the EPBC Act set out in s 3 are the promotion of a co-operative approach to protection and management of the environment involving governments, and assistance in co-operative implementation of Australia’s international environmental responsibilities. The section refers to the strengthening of inter-governmental co-operation and minimized duplication through bilateral agreements and refers to inter-governmental accreditation of environmental assessment and approval processes.

285 The appellant submits that it is necessary to keep these general objectives in mind when considering the significance of the requirement that conditions imposed under a Territory law be considered. However, those broad general objectives and strategies as to expectation and accreditation are not determinative of this appeal.

286 The proponent and the person taking the action have no way of controlling the way in which the Minister proceeds, or the matters which are considered by the Minister when making a decision as to whether to attach a condition of approval, nor as to the terms of any condition which may be attached to such approval. Moreover, consideration of conditions imposed by other authorities cannot be said to promote the main object of the legislation: see Montreal State Railway Case at [1917] AC at [175]. An obligation to ‘consider’ in no way can be said to control or impose any requirement in relation to the Minister’s discretion.

287 The discretion of the Minister under s 134 in relation to conditions is directed to ensure that all convenient, appropriate and necessary conditions are attached to the approval. This obligation under s 134 is free-standing and is independent of any conditions which may have been imposed by another entity under another law. In that context, a consideration of other conditions imposed by another body can be seen as providing a background or context against which the Minister can exercise the discretion. It is in that sense a peripheral or collateral obligation when considered against the context of the main objectives of the Act. The obligation cannot be described as going to any main purpose of the Act.

288 Section 134(4)(a) is not directed to limit or control the terms or content of any condition which should be attached, but rather provides a collateral checking point or reference guide to be looked at in deciding whether to attach a condition, and if so, the extent of the condition and its terms. The consideration of other relevant conditions imposed under other laws on or related to the taking of the action can be seen as directed to avoidance of inessential duplication and/or inconsistency. Those conditions do not serve to lessen or expand the independent duty of the Minister under the Federal Act of ensuring that all appropriate conditions on the application under consideration are imposed. For example, if the Minister decides that a particular condition be imposed and it turns out to be inconsistent with or in duplication of a condition imposed by another body that conflict or duplication does not define or affect in any way the duty imposed on the Minister under s 134, to attach those conditions which he or she is satisfied as necessary, convenient or appropriate to the application before the Minister. In the final analysis, the obligation to ensure that all appropriate or relevant conditions attached to the consent is imposed on the Federal Minister. Other conditions imposed by other bodies only provide a point of reference and it is difficult to conclude that failure to consider such conditions is intended to invalidate approval of the action given by the federal Minister.

289 Non-compliance with the obligation to consider other conditions does not go to the validity of the condition or the consent but rather means that the Minister has failed to perform a public duty. The fact that a condition under another law has not been considered does not therefore affect the outcome or the extent of the Minister’s duty. The Minister has the ultimate say as to what he or she considers appropriate. The conditions imposed by another body do not control this in any way. Section 134(4)(a) is, in my view, directed to guide the manner in which the Minister considers the question of conditions. That is to say, whether conditions should be imposed and if so as to their terms.

290 It can be accepted that if a condition is invalidly imposed then generally, dependent on the essentiality or importance of the condition, the consent which is made on the basis of that condition may be invalid. An obligation to consider a condition of another governmental body does not mean of course that the Minister must accept, follow, or act on it. The fact that there may be duplication of the same condition in two consents does not give rise to a significant problem. Any inconsistency between conditions will only arise where the Minister imposes a condition which he or she considers is relevant, necessary or appropriate under s 134 on the Commonwealth approval to ensure that, for example, the environment is protected. Because, in so doing, he or she may not have considered a condition imposed by another entity, and that there is thereby inconsistency or duplication, was not intended to mean that either the condition falls or the decision to which it is attached is invalid. In particular, having regard to the serious general inconvenience which would be caused in the event of invalidity in this case, the requirement should not be read so as to lead to invalidity for breach.

291 As the trial judge noted, invalidation of the approval would give rise to substantial inconvenience and uncertainty as to the status of the legal action and would result in delay together with expense especially in relation to work which had been carried out. These are substantial adverse consequences arising from the Minister’s actions over which the proponent had no control.

292 As to the extent of the work taken following the approval, the evidence is that the second respondent has carried out extensive work following the approval granted by the Minister on 4 March 2003, under s 75 of the Act.

293 In reliance on the approval, the second respondent began work rechannelling Barney Creek, involving the excavating and armouring of the bank, the creation of a diversion channel, and the revegetation of the river banks. The second respondent also commenced rechannelling the McArthur River, work which involved:

294 Additionally, a new mine levee wall (80-100m wide by 6-60m high) was commenced, using the excavated soil from the McArthur River diversion channel. Construction of this levee wall is to date almost complete, but no works have been undertaken in areas which will impact directly on the McArthur River. Sediment ponds and rock armouring for the mine levee on the McArthur River have also been constructed, following the Minster’s approval.

295 The second respondent has outlined considerable additional work required to be carried out in the area, due to the present state of the McArthur River diversion channel, in order to protect the environment during the 2008-2009 wet season. These works include:

• the installation of rock lining at the upstream and downstream ends of the channel to ensure the integrity of the batters;

• the installation of boulders and large woody debris to reduce the velocity of the water flow in the channel and create habitat;

• the installation of rock lining in the channel to allow tube stock or seeding to be undertaken, and the planting of approximately 35,000 seedlings towards the end of 2008;

• the placement of large upright poles at the intersection of the downstream end of the channel, providing traps for vegetation and seeds;

• the removal of both road crossings presently over the existing McArthur River to prevent scouring of the banks; and

• the construction of a 17 kilometre fence around the channel to reduce the amount of cattle movement in the area, and there reduce erosion.

296 The second respondent says that, if delayed or restrained from proceeding with the above works, it will incur costs in the range of approximately $2.85 million. The second respondent also points out that, if restrained, the effectiveness of any of the environmental management procedures put in place will be diminished. This evidence substantiates that substantial and serious inconvenience will ensue if the approval is invalidated for breach of s 134.

297 The insertion of s 134(5) in the EPBC Act provides that failure to consider information provided does not invalidate a decision about attaching a condition. It does not assist the applicant. It cannot be taken to imply that breach of the other provisions in ss 134(4)(a) and 134(4)(b) result in invalidity. It is apparent from the Explanatory Memorandum that s 134(5) was directed to making it clear that invalidity was not a consequence. It cannot be inferred that the insertion of these provisions requires the conclusion that the other two subsections for either breach of s 134(4)(a) and/or s 134(4)(b) results in invalidity.

298 I do not accept ss 137 to 140 are relevant as contended by the appellants. These provisions are in a similar class of provisions as those considered in Project Blue Sky which the High Court decided would not lead to invalidity in the event of non-compliance. In my view, no inference either way as to validity in the event of a breach of s 134 can be drawn from these provisions.

299 The second ground on which the challenge to validity of the approval is based involves a consideration of the decision of the High Court in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24, concerning failure to have regard to a relevant matter. Of particular relevance are the remarks of Mason J at [39]-[42] where his Honour said:

301 This latter observation contemplates that failure to take into account a matter which the decision maker is bound expressly or impliedly to take into account may not invalidate the decision. His Honour is concerned with the importance of the consideration on the ultimate decision.

302 I do not consider that Peko-Wallsend can be distinguished because, in the present case, the requirement was an ‘express’ statutory requirement. In my view, the principles in Peko-Wallsend set out by Mason J at [39] and [40] apply in the present circumstances, the consequence being in my opinion that there was no possibility that the outcome would have been different, or that a properly considered determination had not been made, or that the main object of the Act was not advanced.

303 These principles have been applied in a number of subsequent cases, a recent example of which is the Full Court decision in Martincevic v Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45 at [68] where the Court considered that it was enough to give rise to invalidity if the failure to have regard to the report could not be said to be so insignificant that it could not have materially affected the decision. In that case their Honours decided that it was not for the Court to second guess what the decision-maker would have made of a report if it had been taken into account. In the present case, on the other hand, it can be said that consideration of the conditions imposed by the Territory law were so insignificant that failure to have regard to them could not have materially affected the decision.

304 The appellant refers to the earlier Full Court decision of Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 346 to support its submission that failure to take into account any relevant consideration constitutes jurisdictional error. The Court there considered that it was necessary to address two questions in relation to jurisdictional error. The first was whether the omission could be characterised as a failure to take relevant considerations into account and thereby give rise to jurisdictional error, the second, if this were the case, whether relief should be withheld on the ground that the failure could not have affected the decision. Their Honours in that case decided that the Minister had committed jurisdictional error by the failure to give proper consideration to the criminal record of the appellant as required by the Migration Act 1958 (Cth). On the issue of relief, the question addressed was whether the appellant should be refused relief on the basis that he was deprived of the possibility of a successful outcome, not whether the decision-maker would probably reach the same result if the ignored consideration had been taken into account. The Court held that, due to the errors of the Minister, the appellant could have been deprived of the possibility of a favourable outcome because the correct details of his sentencing could possibly have led the Minister to take a different view of the risk of recidivism by the appellant if the visa were not cancelled. If the correct record had been taken into account, the Court considered the Minister may not have cancelled the visa.

305 In my view, Lu v Minister is readily distinguishable from the present case, bearing in mind the important fact that a central element when assessing the character of the appellant was his more recent criminal record, which had been grossly misstated, and could have affected the outcome to the significant disadvantage of the appellant. It was not merely a case of omission but rather the existence of a misleading report which was central to the decision. Moreover, that case involved the cancellation of a visa resulting in a change in status of the person and went directly to the formation of an informed decision. The consequences of such an adverse decision coupled with the failure to take accurate account of the more recent conduct of the appellant could clearly have operated to his severe detriment.

306 By contrast to the circumstances in Lu, in the present case s 134(4)(a) requires the Minister only to consider conditions which may go to assist or guide the Minister to avoid duplication or inconsistency. Those conditions do not go directly to the main objectives of the Act to protect the environment and conserve biodiversity. As noted earlier, the Minister has an independent obligation under the Act to consider all relevant conditions and attach those he or she thinks appropriate, and a consideration of the conditions under the law of the Territory was insignificant.

307 For the above reasons and those given by the primary judge, I do not consider there has been jurisdictional error in this case by reason of the failure by the Minister to consider the conditions imposed by the Northern Territory.

308 Moreover, on the premise that it is not a purpose of s 134(4)(a) to invalidate decisions where there was non-compliance, it would be an odd result if such non-compliance could be regarded as invalidating the approval on the further ground that there was a failure to take into account a consideration no matter how insignificant. Such a result would be contrary to the purpose of the provision and such a conclusion should therefore not be adopted.

Counsel for the Appellants:	N Williams SC with S Glacken

Solicitor for the Appellants:	Northern Land Council

Counsel for the First Respondent:	P Hanks QC with K Bean

Solicitor for the First Respondent:	Australian Government Solicitor

Counsel for the Second Respondent:	G Gibson QC with K Barlow

Solicitor for the Second Respondent:	Cridlands Lawyers

Date of Hearing:	18 - 19 August 2008

Date of Judgment:	17 December 2008

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 12 OF 2008

JUDGES:	MOORE, TAMBERLIN AND LANDER JJ
DATE OF ORDER:	17 DECEMBER 2008
WHERE MADE:	SYDNEY

JUDGES:	MOORE, TAMBERLIN AND LANDER JJ
DATE:	17 DECEMBER 2008
PLACE:	SYDNEY

Federal Court of Australia - Full Court

Lansen v Minister for Environment and Heritage [2008] FCAFC 189 (17 December 2008)