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Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (6 May 2011)

Last Updated: 9 May 2011

FEDERAL COURT OF AUSTRALIA


Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59


Citation:
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59


Appeal from:
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113


Parties:
BAT ADVOCACY NSW INC v MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS and ROYAL BOTANIC GARDENS AND DOMAIN TRUST


File number(s):
NSD 262 of 2011


Judges:
EMMETT, MCKERRACHER AND FOSTER JJ


Date of judgment:
6 May 2011


Catchwords:
ADMINISTRATIVE LAW – whether the decision-maker failed to take into account mandatory relevant considerations when dealing with a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – whether the ‘Draft Recovery Plan’ was a mandatory relevant consideration – whether the Minister took into account the impact of the removal from a critical habitat on the ‘species’ as a whole – consideration of requirement that the decision-maker engage in an active intellectual process when considering mandatory relevant matters – it is for the decision-maker to determine the weight to be given to matters – conditions imposed demonstrated that the matters had been taken into account – appeal dismissed


Legislation:


Cases cited:
ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 274 ALR 438
Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465
Tickner v Chapman (1995) 57 FCR 451


Date of hearing:
8 April 2011


Place:
Sydney


Division:
GENERAL DIVISION


Category:
Catchwords


Number of paragraphs:
61


Counsel for the appellant:
G. R. Kennett SC, J. E. Lazarus


Solicitor for the appellant:
Environmental Defender’s Office


Counsel for the first respondent:
A. Mitchelmore


Solicitor for the first respondent:
Australian Government Solicitor


Counsel for the second respondent:
B. Mallon


Solicitor for the second respondent:
Department of Environment, Climate Change and Water

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 262 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
BAT ADVOCACY NSW INC
Appellant
AND:
MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS
First Respondent

ROYAL BOTANIC GARDENS AND DOMAIN TRUST
Second Respondent

JUDGES:
EMMETT, MCKERRACHER AND FOSTER JJ
DATE OF ORDER:
6 MAY 2011
WHERE MADE:
SYDNEY

THE COURT ORDERS THAT:


  1. The appellant file and serve any submissions on costs within 10 days.
  2. The respondents file and serve any submissions in reply on costs within a further 10 days.

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 Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 262 OF 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
BAT ADVOCACY NSW INC
Appellant
AND:
MINISTER FOR ENVIRONMENT PROTECTION, HERITAGE AND THE ARTS
First Respondent

ROYAL BOTANIC GARDENS AND DOMAIN TRUST
Second Respondent

JUDGES:
EMMETT, MCKERRACHER AND FOSTER JJ
DATE:
6 MAY 2011
PLACE:
SYDNEY

REASONS FOR JUDGMENT


EMMETT, MCKERRACHER AND FOSTER JJ:

  1. This appeal is concerned with the validity of a decision made by the first respondent, the Minister for Environment Protection, Heritage and the Arts (the Minister), to give approval for the second respondent, Royal Botanic Gardens and Domain Trust (the Trust), to take action for the relocation of a colony of grey-headed flying foxes from the Royal Botanic Gardens in Sydney (the Gardens). The appellant, Bat Advocacy NSW Inc (the Appellant), claims that the decision was an improper exercise of power. Its principal assertion is that the Minister failed to take into account a relevant consideration, namely, the impact that the removal of the colony from the Gardens would have on the grey-headed flying foxes as a species.
  2. The Appellant accepts that the issues raised in the appeal are essentially factual, namely, whether the Minister did in fact fail to take into account any of the considerations that the parties accept were mandatory relevant considerations. Before examining the Minister’s decision and the circumstances surrounding the decision, it is necessary to say something about the statutory context in which the decision was made.

STATUTORY SCHEME

  1. The impugned decision was made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Environment Act). The objects of the Environment Act include providing for the protection of the environment, promoting ecologically sustainable development through conservation, and promoting the conservation of biodiversity. In order to achieve its objects, the Environment Act recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas.
  2. Part 3 of the Environment Act deals with requirements for environmental approvals. Section 18(4), which is in Part 3, provides, relevantly, that a person must not take an action that:

However, under s 19(1), that prohibition does not apply if an approval of the taking of the action by the person is in operation under Part 9. Under s 67, an action is a controlled action if the taking of the action without approval under Part 9 for the purposes of a provision of Part 3 would be prohibited by that provision. Such a provision is a controlling provision for that action.

  1. Part 8 of the Environment Act deals with assessing the impacts of controlled actions. Division 5 of Part 8 applies to an action if the Minister decides under s 87 that the relevant impacts of the action must be assessed by a public environment report. Under s 97, which is in Division 5, the Minister must prepare tailored guidelines for the preparation of a draft public environment report about the relevant impacts of an action, if the Minister decides that standard guidelines are not appropriate. Under s 98, the proponent of the action must prepare a draft public environment report in accordance with the guidelines about the relevant impacts of the action, give the draft report to the Minister, obtain the Minister’s approval for publication of the draft report and publish the draft report together with an invitation for anyone to give comment relating to the draft report or the action. After the end of the period specified in the invitation to comment under s 98, the designated proponent must finalise the draft public environment report pursuant to s 99. The finalised report must take account of any comments received and contain a summary of any such comments and how those comments have been addressed. As soon as practicable, the designated proponent must give the Minister the finalised report and a copy of any comments received. The designated proponent must then publish the finalised report. Under s 100, the Secretary of the Department of the Environment, Water, Heritage and the Arts (the Department) must prepare and give to the Minister a recommendation report relating to the action. The report must include recommendations on whether the taking of the action should be approved under Part 9 and, if approval is recommended, any conditions that should be attached to the approval. Section 100 provides time limits within which the recommendation report must be given to the Minister.
  2. Part 9 of the Environment Act deals with the approval of actions. Under s 130, which is in Part 9, the Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action. Under s 133, the Minister may approve, for the purposes of a controlling provision, the taking of the action by a person. Subdivision B of Division 1 of Part 9 deals with considerations relevant to approvals and conditions of approvals. Under s 136(1)(a), in deciding whether or not to approve the taking of an action, the Minister must consider matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action. In considering such matters, the Minister must take into account the considerations described in s 136(2). Under s 34, a listed threatened species in the vulnerable category is a matter protected by s 18(4).
  3. The considerations in s 136(2) that must be taken into account include the following:
  4. In deciding whether or not to approve the taking of an action by a person, and what conditions to attach, the Minister may, under s 136(4), consider whether the person is a suitable person, having regard to the person’s history in relation to environmental matters. However, in deciding whether or not to approve the taking of an action, the Minister must not consider any matters that the Minister is not required or permitted by Division 1 to consider. Under s 139, in deciding whether or not to approve the taking of an action, the Minister must not act inconsistently with, relevantly, a recovery plan.
  5. Section 270 provides that a recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species concerned, so that its chances of long-term survival in nature are maximised. In particular, under s 270(2)(b), a recovery plan must state criteria against which achievement of the objectives is to be measured.
  6. Under s 270(2) a recovery plan must also, inter alia:

PROCESS LEADING TO THE MINISTER’S DECISION

  1. Grey-headed flying foxes are listed under the Environment Act as a listed threatened species in the vulnerable category. The Trust proposes to take action for the relocation of the colony of grey-headed flying foxes presently residing in the Gardens, by using non-lethal methods such as noise and visual dispersal techniques. The Trust is proposing to undertake that action to protect trees of state heritage value in the Gardens that have been damaged by the roosting of the animals. Since 1995, it is estimated that 18 state heritage listed trees have died and 135 trees have sustained serious damage to part or all of their canopies. Approximately 40 trees are unlikely to survive if the flying foxes remain in the Gardens.
  2. The proposed action was initially referred under s 68 of the Environment Act to the Department in November 2008, but the application was subsequently withdrawn because the referral did not encompass the entire action. In December 2008, the proposed action was referred to the Department again, and a delegate of the Minister determined that the proposed action was a controlled action because of the likelihood that the proposal would have significant impacts on the animals in the colony.
  3. In February 2009, pursuant to Part 8 of the Environment Act, a delegate of the Minister determined that the proposal would be assessed by a public environment report, and draft guidelines for such a report were issued in March 2009. This report (the Public Environment Report) was finalised for public exhibition in November 2009 and was available for public exhibition from 12 November 2009 to 23 December 2009. The key issues raised through the public exhibition process were the importance of the state heritage listed trees within the Gardens and the damage that is occurring to those trees as a result of the flying fox colony roosting within the Gardens, together with the potential impact on flying foxes as a result of the proposed action by the Trust.
  4. In July 2009, a draft national recovery plan (the Draft Plan) was prepared for the Department. The Draft Plan identified the grey-headed flying fox as one of the largest bats in the world. It stated that since the time of the European settlement of Australia, grey-headed flying foxes have been subjected to ongoing loss of foraging habitat. As a result, there has been an ongoing decline in abundance of the animals. For those reasons, the grey-headed flying fox was listed as vulnerable under the Environment Act.
  5. The Draft Plan stated that grey-headed flying foxes occupy the coastal lowlands and slopes of south-eastern Australia from Bundaberg to Geelong. Areas of repeated occupation extend inland to the tablelands and western slopes in northern New South Wales and the tablelands in southern Queensland. The grey-headed flying fox is a highly mobile, migratory species that relies on food sources with largely irregular patterns of production. Patterns of occurrence and relative abundance within its distribution vary widely between seasons and between years.
  6. The Draft Plan stated that grey-headed flying foxes are partial migrants. Some individuals migrate whereas others are sedentary. A small number of local areas support a continuous presence and others are associated with regular, annual patterns of use. In order to survive, grey-headed flying foxes require a continuous sequence of productive foraging habitats, migration corridors or stopover habitats that link them, and suitable roosting habitat within nightly commuting distance of foraging areas. The majority of plants in the diet of grey-headed flying foxes flower within a defined season but are not annually reliable, and the location of productive foraging habitat provided by such plants varies.
  7. The Draft Plan also stated that grey-headed flying foxes roost in large aggregations in the exposed branches of canopy trees. The locations of camps are generally stable through time. Camps provide resting habitat, sites of social interaction, and refuge for animals during significant phases of their annual cycle, such as birth, lactation and conception. Roosting habitat that meets at least one of the following criteria was identified in the Draft Plan as habitat critical to survival, or essential habitat, for grey-headed flying foxes, namely:
  8. The Draft Plan stated that loss of foraging habitat is consistently identified as the primary threat to grey-headed flying foxes. Clearing of native vegetation for agriculture, forestry operations, plantation plantings and development has reduced food production from native species in the diet of grey-headed flying foxes. In addition, the Draft Plan stated that the loss of roosting habitat has also been identified as a threat. Camp vegetation has been exposed to the same historical patterns of clearing and degradation as has foraging habitats. The Draft Plan stated that the roosting requirements of grey-headed flying foxes are not known, and that the impact on the species of loss of long term sites is also not known. The Draft Plan stated that the degradation of vegetation in small remnants threatens longevity and may also reduce the suitability of sites as camps.
  9. The Draft Plan listed actions for recovery of grey-headed flying foxes. One proposed action is to identify and protect roosting habitat critical to the survival of the animals. That includes enhancing and sustaining the vegetation in camps that are critical to their survival.
  10. On 31 March 2010, the Department provided a decision brief to the Minister, which recommended the grant of approval subject to certain conditions. The decision brief, which was signed by the Minister on 12 April 2010, attached the following:
  11. After summarising issues and sensitivities, the decision brief said that, since the Draft Plan had not yet been made or adopted under s 269A of the Environment Act, the requirement under s 139 that the Minister not act inconsistently with the Draft Plan was not a relevant consideration in deciding whether to approve the taking of the relevant action by the Trust. The decision brief stated, however, that it was appropriate for the Minister to consider the Draft Plan as part of the decision making process.
  12. After the Trust had been given time to comment on the proposed conditions, a final decision brief was provided to the Minister by the Department. That brief included the following:
  13. The Recommendation Report contained a recommendation that the proposed action to relocate grey-headed flying foxes from the Gardens be approved subject to the conditions set out. Section 3 of the Recommendation Report set out the material on which the Minister’s findings were to be based. That material included the Draft Plan and the Public Environment Report, as well as other relevant materials.
  14. Section 5 of the Recommendation Report set out the assessment process and referred, in particular, to the Draft Plan. Section 5.5 stated that the overall objectives of the Draft Plan, which was attached, were to reduce the impact of threatening processes, to arrest decline throughout their range, conserve their functional roles in seed dispersal and pollination of native plants, and to improve the comprehensiveness and reliability of information to guide recovery. The Recommendation Report stated that specific objectives aimed to identify, protect and enhance key foraging habitat, to substantially reduce deliberate destruction associated with commercial fruit crops, to reduce negative public attitudes and conflict with humans, and to involve the community in recovery actions where appropriate. The Appellant draws attention to the fact that there is no reference to the roosting habitat of grey-headed flying foxes in that context.
  15. Section 6 of the Recommendation Report stated that the grey-headed flying fox is listed as vulnerable under the Environment Act and describes its habitat and life cycle, and its reproductive cycle. The Recommendation Report then stated that the key threat to the grey-headed flying fox is the loss and fragmentation of habitat that results in a decrease in food sources and roosting sites. It said that in urban and peri-urban areas conflict between the habitat and foraging needs of the flying fox and land owners is a widespread and ongoing issue. The Recommendation Report also referred to other threats, such as shooting due to the destruction of commercial fruit crops in New South Wales, where permits are issued to allow such shooting. Another threat is competition with other flying foxes because of the reduction of available habitat and food resources.
  16. The Recommendation Report then described the status of grey-headed flying foxes in the Sydney metropolitan region and in the Gardens in particular, and dealt with possible relocation sites as described in the Public Environment Report. The Recommendation Report identified possible relocation sites across Sydney where approval for relocation has been given and other possible relocation sites for which approval has not yet been given. The Recommendation Report said that it is difficult to predict where the flying foxes will relocate. Accordingly, the Department recommended in the proposed conditions that the Trust be responsible for managing welfare of the flying foxes until it can be demonstrated that they have been relocated to a site that ensures a viable population. The conditions require the Trust to monitor and assess reproductive output.
  17. Next, the Recommendation Report dealt with a range of potential direct and indirect impacts associated with the proposed dispersal. The impacts related to increased levels of stress that can be difficult to attribute or detect, and also related to problems associated with where the animals go after they have been dispersed. In particular, the Recommendation Report stated that the dispersal from the Gardens may result in a reduction in the availability of roosting habitat, because the flying foxes will have to find alternative habitat across Sydney. The Recommendation Report recorded that the Trust has stated that the colony would not be prevented from continuing to use the Gardens as foraging habitat.
  18. The Recommendation Report also stated that the flying foxes in the Gardens are destroying their own habitat to the point where, during times of high heat, the colony has to move to other areas of the Gardens to seek relief from heat stress, as sufficient vegetation cover is not present on the roosting trees. It said that despite the fact that the Gardens are both a maternal and roosting colony, the site is unsustainable and the quality of habitat will continue to decline, especially once the Trust removes dead trees and branches to minimise occupational health and safety issues.
  19. The Recommendation Report stated that, in order to minimise impacts on flying foxes that join another colony, the conditions of approval ensure that the Trust is responsible for managing the entire colony to which the flying foxes relocate. Another condition requires monitoring the successful relocation of the flying foxes. The Recommendation Report stated that, with the proposed mitigation measures as well as the recommended conditions of approval, the Department considers that impacts on the flying foxes are at an acceptable level. The Recommendation Report stated that the Department considers that the impacts on the grey-headed flying fox have been adequately compensated for and adequately minimised.
  20. The Recommendation Report also referred specifically to the Draft Plan and repeated the statement that, since the Draft Plan has not yet been made or adopted by the Minister, the requirement for the Minister not to act inconsistently with it under s 139 is not a relevant consideration in relation to the decision whether or not to approve the taking of the proposed action. The Appellant complains that the Recommendation Report omitted the advice contained in the original decision brief that it was appropriate for the Minister to consider the Draft Plan as part of the decision making process.
  21. The Recommendation Report ended with a recommendation from the Department that the dispersal proposal be approved with conditions. It stated that, although there are some uncertainties surrounding the proposed dispersal, there is an extensive monitoring and management programme being implemented to keep impacts on the grey-headed flying fox to an acceptable level. The Department recommended a number of conditions of approval that will restrict the way the action is to be undertaken, which should also keep impacts on the grey-headed flying fox to an acceptable level. The Recommendation Report stated that it is recognised that, should the action proceed, short term impacts would be realised on the grey-headed flying fox. However, given the measures that the Trust will undertake to mitigate impacts, as well as the recommended conditions of approval, the Department recommended the proposed action be approved.

THE DECISION

  1. On 13 May 2010, the Minister approved the action proposed by the Trust, subject to a number of conditions. Condition 1 was that the Trust must undertake the action in accordance with the conditions of the approval given by the Minister and as described in the Public Environment Report. Further conditions are stated under a number of headings, as follows:
  2. The conditions of approval proposed by the Minister prior to dispersal included conditions that the Trust:

(a) establish an independent observer group;

(b) establish an independent expert panel, to be fully funded and resourced by the Trust for the life of the action, and to be available to oversee and advise on all components of the action;

(c) provide in writing to the panel the estimated number of flying foxes located in the Gardens;

(d) ensure that all appropriate and necessary animal ethics approvals are received;

(e) ensure that a minimum of 100 flying foxes located at the Gardens are fitted with tags;

(f) ensure that a minimum of 400 flying foxes located at the Gardens are banded; and

(g) ensure that all banding and tagging activity is overseen and verified by a member of the independent observer group.

  1. The conditions to be observed during dispersal included conditions that:
  2. The conditions applicable during re-dispersal included a condition that, should new colonies formed as a result of the dispersal need to be subject to re-dispersal activity, the Trust fund such re-dispersal activity. Further conditions were imposed to protect the animals during such re-dispersal.
  3. Finally, conditions relevant to the successful relocation of the colony from the Gardens included a condition that the Trust must continue to act in accordance with the conditions until such time as the successful relocation of the colony can be demonstrated in a report supported by the independent expert panel. In particular, condition 14(a) stated that successful relocation can be demonstrated only if, for each year that dispersal or re-dispersal activity is undertaken in the Gardens, 80 percent of the colony present at the commencement of dispersal or re-dispersal activity in that year are residing in habitat:

(i) of a sufficient area, nature and quality to support the permanent occupation by the colony present;

(ii) that is located within 50 kilometres of foraging habitat of a sufficient area, nature and quality to support the foraging requirements of the colony;

(iii) with canopy, mid- and under-storey vegetation sufficient to ensure that a minimal number of animals will die from heat stress;

(iv) that is located in an area where the human community will not require the new colony to be re-dispersed; and

(v) where more than 70% of adult females in each new colony are breeding each year for a minimum of 3 consecutive years.
In addition, successful relocation will be demonstrated only if the Trust has prepared and committed funding for the implementation of a vegetation rehabilitation plan for the necessary sites of the new colony or colonies.

  1. On 11 June 2011, at the request of the Appellant, the Minister provided a statement of his reasons for granting the approval (the Statement of Reasons). After referring to the evidence and other material on which the Minister’s findings were based, the Statement of Reasons set out the Minister’s findings on material questions of fact under several headings.
  2. The findings in the reasons included the following:
Listed threatened species and communities (sections 18 and 18A)
Grey-headed Flying fox (GHFF) (Pteropus poliocephalus)
...
  1. The proposed action to relocate the colony of GHFF at the [Gardens], and follow up dispersal if required could potentially impact on GHFF directly and indirectly including:
    1. abortion of young;
    2. dropping of dependent pups;
    1. desertion of semi-dependent young;
    1. excessive stress;
    2. possible death;
    3. sleep deprivation;
    4. disruption of breeding cycle of an important population;
    5. reduction of habitat (including critical habitat);
    6. fragmentation;
    7. increased competition;
    8. other potential impacts relating to handling of GHFF; and
    1. potential exposure to heat as a result of unsuitable habitat.
  2. The [Trust] designed their proposed action to have a minimal impact on GHFF. They had committed to a number of measures to reduce these impacts to an acceptable level.
  3. The [Trust] proposed to undertake dispersal at the [Gardens] between May and July which is considered by experts as a "safe time" to disperse GHFF. However, the [Trust] also proposed on-going and follow up dispersal outside of this period if required.
  4. The [Trust] proposed a research, monitoring and management program which involves monitoring the movement, population, stress levels and reproductive output of a sample of GHFF at the [Gardens]. Approximately 50 GHFF would be fitted with radio-tags and 400 GHFF fitted with bands.
  5. The [Trust] committed to measuring the reproductive output of GHFF to determine whether the dispersal has had a negative impact on the breeding success of GHFF. The [Trust] will compare reproductive data that has been collected in the 2009/2010 season with data in the 2010/2011 season to determine whether there has been an increase or decline in reproductive success. This research will be continued for a period of 3 years.
  6. The [Trust] identified a number of thresholds/indicators throughout the dispersal proposal to assist in determining whether the dispersal is impacting GHFF, and if it is, what measures can be put in place to reduce the impact to an acceptable level.
  7. The [Trust] committed to the establishment of a hotline where members of the public can contact the [Trust] to report any injured GHFF, the establishment of a colony of GHFF at a site that is inappropriate as well as to discuss general concerns.
  8. The [Trust] have committed to supporting land managers with resources such as interpretative signage or other management priorities for new camps. They have committed to the provision of expertise, advice and monetary contributions in seed collection, horticulture and ecology, assistance in revegetation through nursery production and bush regeneration.
  9. Despite the proposed mitigation measures from the [Trust] and the detailed methodology of the proposal outlined in the PER, my department contracted a GHFF expert to provide an independent expert review of the PER, the proposed methodology and the mitigation and management measures. As a result of the complexity of the proposal and the direct action targeting a protected species, and in order to further minimise impacts to GHFF, I considered it necessary to attach stringent conditions of approval which will further limit the proposed action and ensure impacts to GHFF are at an acceptable level.
...

Conclusion on matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action:

  1. The potential impacts on listed threatened species have been avoided where possible and minimised through mitigation measures where unavoidable. I was satisfied that the measures imposed would reduce the impacts to the GHFF to an acceptable level.
Social and economic matters
...

  1. Based on public submissions and letters received by me, there is both opposition and support to relocate GHFF from the ... Gardens. These concerns include:
    1. the importance of the state heritage listed trees within the [Gardens] and the damage that is occurring to these trees as a result of the GHFF colony roosting within them;
    2. exposure to droppings, smell and noise from GHFF which detract from the amenity of the [Gardens];
    1. the relocation of GHFF to inappropriate sites such as backyards and/or commercial fruit crops;
    1. possible increased human exposure to diseases; and
    2. the welfare of the GHFF colony, and the potential adverse impacts to GHFF as a result of the proposed dispersal.
  2. The concerns raised by the public were taken into account throughout the assessment process.
  3. I considered that the final decision is one which balances the economic and social benefits with the concerns raised during the public consultation process.
  4. The reasons ended with the Minister stating that, in light of his findings, he concluded that the potential impacts of the actions on threatened species and ecological communities were acceptable, if taken in accordance with the conditions of the approval.

JUDICIAL REVIEW

  1. The Appellant commenced a proceeding in the Court seeking judicial review of the Minister’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Review Act). The Appellant claimed that the making of the decision by the Minister was an improper exercise of the power conferred by s 130 and s 133 of the Environment Act, because the Minister failed to take a relevant consideration into account in the exercise of the power. The Appellant asserted that, under s 136(1)(a) of the Environment Act, the impact that removal of the grey-headed flying fox from critical habitat would have on the species was a mandatory consideration. The Appellant particularised its complaint as follows:

(i) The Draft Plan states that habitat critical to the survival of the grey-headed flying fox includes foraging habitat and roosting habitat.

(ii) The Gardens are critical roosting habitat for the grey-headed flying fox.

(iii) Loss of critical roosting habitat for the grey-headed flying fox in the Gardens is likely to have various significant impacts on the species.

(iv) The loss of critical roosting habitat and its impact on the species was a matter relevant for consideration in making a decision.

(v) The Minister failed to take that relevant consideration into account in making his decision.
The Appellant also relied on other grounds that were not pursued on appeal.

  1. For reasons published on 17 February 2011, a judge of the Court ordered that the proceeding be dismissed and ordered the Appellant to pay the costs of the Minister and the Trust. By notice of appeal filed on 10 March 2011, the Appellant appealed from those orders. Because of the desirability that dispersal action be commenced no later than 1 May 2011, the hearing of the appeal was expedited. The appeal was heard on 8 April 2011, on which date the Full Court ordered that the appeal be dismissed. The Court indicated that it would publish its reasons as soon as practicable. These are the reasons for making the orders of 8 April 2011.

THE APPEAL

  1. In its notice of appeal, the Appellant asserts that the primary judge erred in failing to find that the Minister failed to take mandatory relevant considerations into account in making the decision to approve the dispersal of grey-headed flying foxes from the Gardens, namely:

While the failure to take into account the Draft Plan was not particularised as a ground of review in the amended application to the Court, no objection was taken by the Minister or the Trust to the grounds of appeal as being outside the scope of the application for review.

  1. The complaint of the Appellant is that, in making the findings and reaching the conclusion referred to in the Statement of Reasons, the Minister failed to take into account the impact that the proposed dispersal would have on the species of grey-headed flying fox, as distinct from the particular colony presently located in the Gardens. The Minister was advised by the Department that the Gardens met the definition of critical roosting habitat under the Draft Plan. Accordingly, the Minister accepted, for the purpose of the proceeding, that the Gardens are critical habitat of the grey-headed flying fox. The Minister also accepted that the loss of the Gardens as roosting habitat would have a significant impact. The Trust accepted the Minister’s concessions.

Relevant Legal Principles

  1. The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 274 ALR 438 at [58]–[59]).
  2. Once a matter has been identified as a mandatory relevant consideration, it is the salient facts that give shape and substance to the matter that must be brought to mind. These are the facts which are of such importance that, if they are not considered, it could not be said that the matter has been properly considered (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61).
  3. A statement of reasons given by a decision maker can constitute evidence of the material put before the decision maker, the way in which that material has been dealt with and the reasons for which the decision was made. A failure to include reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account. Thus, a statement of reasons may be accepted as evidence of the truth of what it says, namely, that the findings made and the evidence referred to and the reasons set out are as stated in the statement of reasons. It can be accepted as evidence that no finding, evidence or reason that was of any significance to the decision has been omitted (see Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 179 and 182).
  4. A statement of reasons under s 13 of the Review Act does not require a decision-maker to pass comment on all of the material to which his attention has been drawn and to which he has had regard. What the provision requires is that the decision-maker set out his or her findings on ‘material questions of fact’. While a failure to include a matter in a statement of reasons may justify a court inferring, as a matter of fact, that the matter was not taken into account, such an omission is not necessarily conclusive (see Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 485). Whether that inference will be drawn in a particular case will depend on all the circumstances (see ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 205).
  5. The Appellant’s complaint is that the Minister failed to participate in any ‘active intellectual engagement’ with the loss of critical habitat or the Draft Plan. It complains that there was a failure to give weight to those matters as fundamental elements in making a determination: there was mere advertence to the matters, which were then discarded as irrelevant, and a failure to consider the salient facts that give shape and substance to the matter, being facts of such importance that, if they were not considered, it could not be said that the matter had been properly considered. If there were any such failures there would be jurisdictional error.

The Appellant’s Contentions

  1. The Appellant points out that the Statement of Reasons listed “reduction of habitat” among the potential impacts on the grey-headed flying fox that were at least implicitly accepted as requiring consideration. However, that matter was not mentioned again in the reasons. In addition, while the Draft Plan was noted among the documents that the Minister had considered, the Draft Plan was not mentioned further. The Appellant says that, in those circumstances, the inference is inescapable that the Minister merely adverted to those matters, and put them to one side, not taking them into account in the relevant sense.
  2. The Appellant relies on the fact that, in the Recommendation Report, the Minister was expressly advised that the Draft Plan was not a relevant consideration in relation to the decision. However, that complaint ignores the substance of what is said in the Recommendation Report. A fair reading of the relevant passage indicates that the author was doing no more than pointing out that, under s 139, the Minister, in deciding whether or not to approve the taking of an action, must not act inconsistently with a recovery plan. A draft recovery plan is not a recovery plan within the meaning of s 139. The statement is that the requirement under s 139 for the Minister not to act inconsistently with a recovery plan is not a relevant consideration in the present circumstances, because the Draft Plan had not yet been made or adopted under s 269A. Therefore it had not become a recovery plan.
  3. The principal complaint by the Appellant is that the Minister failed to take into account the impacts that removal of the colony of grey-headed flying foxes from the Gardens would have on the species. The Appellant complains that, while the Recommendation Report considers in very general terms the reduction in the availability of roosting habitat, there is no consideration of whether the Gardens are critical habitat and there is no consideration of the impact that removal from that critical habitat might have on the species. It complains that there was no consideration of the Draft Plan in the context of the discussion of the issue of reduction of habitat.
  4. The Appellant asserts that the mere fact that an issue had been discussed in a departmental briefing established no more than that the Minister’s advisers identified the issue as relevant and invited him to consider it. The Appellant says that no inference can be drawn about whether the Minister himself regarded the issue as important, unimportant or irrelevant. Still less, it says, can any inference be drawn from statements by an interested party or an independent expert that are contained in the large volume of documents annexed to the briefing given to the Minister by the Department. Thus, the Appellant contends, the material does not establish that the Minister took into account, in the requisite sense, the impact of habitat loss on the species as a whole. If anything, the Appellant says, when a briefing paper raises an issue but the decision-maker does not discuss it in a statement of reasons, the inference is strengthened that the decision maker did not treat the issue as a relevant one.
  5. The Appellant accepts that the conditions imposed by the Minister demonstrate that the Minister was aware that the dispersal had potential adverse impacts on the grey-headed flying fox species and that he was concerned to minimise such impacts. The Appellant also accepts that the conditions of the approval address, at least to some extent, the survival and welfare of the individual animals comprising the colony in the Gardens. For example, there is provision for minimising trauma to individual animals during the dispersal and re-dispersal processes, and for promoting their survival until they are settled in suitable alternative locations.
  6. However, the Appellant says, the conditions do not address any impact on the species as a whole. Specifically, the Appellant complains, the conditions do not address the consequences of the loss of the Gardens as critical habitat of the grey-headed flying fox. The conditions do not contemplate permitting the return of grey-headed flying foxes to the Gardens, or the provision of alternative roosting sites in the Sydney region, if studies were to show that the loss of the Gardens as a roosting habitat affected the distribution of the species. Therefore, the Appellant says, the conditions imposed by the Minister do not support any inference that the Minister gave any active intellectual consideration to the impact on the species of the loss of the Gardens as critical habitat. More specifically, the conditions do not, the Appellant says, support an inference that the Minister gave any active intellectual consideration to the content of the Draft Plan.
  7. In the Statement of Reasons, the Minister outlined some of the mitigation measures to which the Trust was committed. Further conditions were imposed to ensure that impacts to grey-headed flying foxes as a result of the proposed action would be acceptably minimised. A close analysis of the conditions demonstrates that the Minister gave consideration to the impact of relocation from the Gardens, including the loss of the Gardens as a site of roosting habitat. For example, condition 14 requires the Trust to continue acting in accordance with the conditions of the approval until such time as the successful relocation can be demonstrated in a report from the independent expert panel.
  8. The Statement of Reasons was required to set out the Minister’s findings on material questions of fact. However, the Minister was not required to pass comment on all of the material to which his attention had been drawn and to which he had had regard. While failure to include a matter in the Statement of Reasons may justify the Court drawing an inference, as a matter of fact, that the matter was not taken into account, such a failure is not necessarily conclusive. The Minister did not have to say anything further about the Draft Plan in the Statement of Reasons in order to demonstrate positively that he had considered it.
  9. The detailed conditions that were formulated to protect the flying foxes were designed to minimise the impact of any reduction in critical habitat that resulted from the proposed action. The imposition of the onerous standard for success in condition 14 demonstrated the Minister’s concern to ensure that any reduction in critical habitat resulting from the loss of the Gardens as a roosting habitat would not impact on the species. Condition 14 demonstrated a concern to ensure that animals relocating from the Gardens would not settle in an area that could not permanently support them, including by reason of a pre-existing colony in the area. Condition 14 also demonstrated that the Minister was fully aware of the potential adverse impacts upon the grey-headed flying fox species and made a concerted effort to minimise those impacts.
  10. The Statement of Reasons and the documents attached to the Minister’s decision brief make clear that the primary concern of the Minister in deciding whether to grant or withhold approval and whether to impose or not impose conditions and if so, their content, was the effect on the loss of critical habitat and whether that could be justified in the circumstances. The Minister had to weigh that concern with the terminal damage the flying foxes in the Gardens were causing to their own, also vulnerable, critical habitat, such that it would, in any event, no longer exist for their benefit unless they were moved. The expert advice taken prior to imposition of the onerous, prescriptive conditions makes clear that the entire examination of the Minister was directed to the consequence of the loss of critical habitat and content of the Draft Plan.
  11. The total process culminating in the conditional approval was directed substantively to these issues. The number of times the expressions ‘critical habitat’ and ‘Draft Plan’ were repeated in the Statement of Reasons was immaterial. Those concepts were at the core of a highly deliberative evaluation of a somewhat precarious balancing exercise.
  12. The Appellant has not established that there was an improper exercise of power by the Minister in making his decision. That was the conclusion reached by the primary judge. There was no error in his Honour’s conclusion.

CONCLUSION

  1. For the reasons indicated above, the Full Court concluded that the appeal should be dismissed. The Appellant foreshadowed a desire to be heard on the question of costs even if the appeal were dismissed. Accordingly, the Court will give directions for the parties to make further submissions as to the question of the costs of the appeal and of the proceeding at first instance.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, McKerracher and Foster.

Associate:


Dated: 6 May 2011


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