Humane Society International Inc v Minister for the Environment & Heritage [2003] FCA 64 (12 February 2003)

Last Updated: 12 February 2003

FEDERAL COURT OF AUSTRALIA

Humane Society International Inc v Minister for the Environment & Heritage [2003] FCA 64

ADMINISTRATIVE LAW: declarations and orders sought under Administrative Decisions and Judicial Review Act 1977 (Cth) (ADJR) - where Minister advised holders of state permits that need not apply for approval under Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) - where objection to competency of proceedings under ADJR - whether Minister's actions "decision", "of an administrative character", and "made under an enactment" - whether Minister's action "conduct" for purpose of ADJR

ADMINISTRATIVE LAW: relief sought under s 39B Judiciary Act 1903 (Cth) - whether mandamus appropriate - whether public duty remains unperformed - whether refusal of minister to perform statutory duty

ADMINISTRATIVE LAW: - whether policy - content of policy - whether invalid - whether prevents Minister from undertaking statutory duty

ADMINISTRATIVE LAW: whether Minister's actions created purported exemption - whether concerns legal obligations of persons proposing action - whether exemption authorised by EPBC - whether in breach of conditions regulating statutory power - whether legislative purpose to invalidate action

DECLARATORY RELIEF - whether declaration appropriate - whether determination of issue between the parties - whether declaration as to lack of statutory authorisation for purported exemption

STATUTES

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 6(1)

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 178, 189, 18, 681, 18A, 18(4), 19, 67, 75(1), 158, 33(1), 158(4)

Environmental Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (No 82)

Federal Court of Australia Act 1976 (Cth) ss 21, 23

Judiciary Act 1903 (Cth) ss 39B, 39B(1A)(c)

Migration Act 1958 (Cth)

CASES

Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162 Refd to

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Cited

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Applied

Australian National University v Lewins (1996) 138 ALR 1 Cited

Blurton v Commonwealth Minister for Aboriginal Affairs (1991) 29 FCR 442 Cited

General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164 Cited

Gilbert v State of Western Australia [1962] HCA 7; (1962) 107 CLR 494 Cited

Green v Daniels (1977) 13 ALR 1 Cited

Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 Applied, Cited

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

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Cited

R v Metropolis Police Commissioner; Ex parte Blackburn sub nom R v Commissioner of Metropolitan Police; Ex parte Blackburn [1968] 2 QB 118 Cited, Discussed

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Applied, Cited

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Cited

Tasmanian Conservation Trust Inc v Minister for Resources and Gunn Ltd (1995) 55 FCR 516 Cited

Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 Cited

HUMANE SOCIETY INTERNATIONAL INC v MINISTER FOR THE ENVIRONMENT AND HERITAGE

Q 191 of 2002

KIEFEL J

12 FEBRUARY 2003

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q191 OF 2002

BETWEEN:	HUMANE SOCIETY INTERNATIONAL INC APPLICANT
AND:	MINISTER FOR THE ENVIRONMENT AND HERITAGE RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	12 FEBRUARY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The objection to the competency of the proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is upheld.

2. The application for an order for mandamus is dismissed.

THE COURT DECLARES:

3. That the exemption purported to be given in the Administrative Guidelines on Significance: Supplement for the Grey-headed Flying-fox dated November 2002 and the Administrative Guidelines on Significance: Supplement for the Spectacled Flying-fox dated November 2002, to persons proposing action with respect to those species, from their obligations under s 68(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to consider the effect of those actions and, if they think the actions are controlled by the Act, to refer them to the Commonwealth Environment Minister, is not authorised by law.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q191 OF 2002

BETWEEN:	HUMANE SOCIETY INTERNATIONAL INC APPLICANT
AND:	MINISTER FOR THE ENVIRONMENT AND HERITAGE RESPONDENT

JUDGE:	KIEFEL J
DATE:	12 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 The objects of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the Act") include the conservation of biodiversity, the promotion of a co-operative approach to the protection and management of the environment and the implementation of Australia's international environmental responsibilities. The respondent, the Minister for the Environment and Heritage ("the Minister"), administers the Act pursuant to an Administrative Arrangements Order. Chapter 5 of the Act deals with conservation of biodiversity. Section 178 provides that the Minister must establish a list of threatened species, divided into six categories, and publish the list in the Commonwealth Gazette. A "vulnerable" species is one of the categories. The list is amended after consideration of advice from the Scientific Committee: s 189(1). Chapter 2, Part 3, Subdivision C, s 18 is entitled "Actions with significant impact on listed threatened species or endangered community prohibited without approval". Section 18(4), provides:

"Vulnerable species

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

(a) has or will have a significant impact on a listed threatened species included in the vulnerable category; or

(b) is likely to have a significant impact on a listed threatened species included in the vulnerable category."

The subsection goes on to prescribe civil penalties. Section 18A creates an offence if a person takes such an action. The word "action" includes an activity or a series of activities. The action the focus of this application is the culling of the Grey-headed Flying-fox and the Spectacled Flying-fox by fruitgrowers, in order to protect their crops. Sections 18 and 18A do not apply to an action if there is in force an approval with respect to the action under Part 9 of the Act: s 19.

2 On 6 December 2001, the Grey-headed Flying-fox (Pteropus poliocephalus) was listed as a vulnerable species under the Act. The "Administrative Guidelines on Significance: Draft Supplement for the Grey-headed Flying-fox" were published on the website of Environment Australia on 11 December 2001 for public comment. They attracted comments from some State government agencies, and a number of conservation organisations and individuals. The applicant provided a submission.

3 On 7 and 8 May 2002, a workshop of representatives from the Commonwealth and from governmental agencies in Victoria, New South Wales and Queensland responsible for environmental management and regulation was held concerning the Grey-headed Flying-fox. Its purpose was to discuss a national approach to the management of the animal, given that crop protection activities, such as shooting them, may have an impact on the species. A consensus was reached among the participants that a mortality of 1.5 per cent of the current population of the species, as a result of crop-protection activities, would not prejudice the survival or recovery of the species in the longer term. At an informal meeting between government representatives a similar approach was considered to be appropriate in relation to the Spectacled Flying-fox.

4 On 14 May 2002, the Spectacled Flying-fox (pteropus conspicillatus) was listed as a vulnerable species under s 178. The Administrative Guidelines on Significance: Draft Supplement for the Spectacled Flying-fox were published on the Environment Australia website and comments were sought and received.

5 On 17 June 2002, the Minister wrote to the Ministers responsible for Environment and Conservation in Victoria, New South Wales and Queensland, seeking endorsement for a national approach to the management of the Grey-headed Flying-foxes. It was proposed to remove the need for individual growers who held a valid State permit to cull the flying-foxes to also refer their proposed action to the Minister under the Act. The total number to be taken under State permits in the 2002-2003 fruit season was not to exceed 1.5 per cent of the agreed national population estimate for the species. The Minister went on to say:

"I believe that this level of controlled culling will not affect the long-term survival or recovery of the Grey-headed Flying-fox, and would not be considered to have a significant impact on the species. The States would continue to be responsible for the management of their permitting process and growers operating under a valid State permit to control Grey-headed Flying-foxes would not need to refer their activity to the Commonwealth. This approach should be considered an interim measure only, and I would like to encourage the ongoing investigation of viable, cost-effective, non-lethal control methods.

I understand that the total allowable take for the 2002/2003 fruit season will be distributed between Queensland, New South Wales and Victoria based on historical and anticipated permitting.

The national approach will be valid until June 2003, at which time a review will be conducted to determine the requirements for the 2003/2004 fruit season ..."

6 The State Ministers agreed with the approach. The Queensland Minister for the Environment sought a similar agreement with respect to the Spectacled Flying-fox. In his letter of 22 October 2002, the Minister agreed that a similar approach should be taken to that species.

7 On 22 October 2002 the Minister wrote to the State Ministers and enclosed a copy of the final Administrative Guidelines for Significance: Supplement for the Grey-headed Flying-fox. That document, and the final Guidelines with respect to the Spectacled Flying-fox, were published in November 2002, after a media release by the Minister. The Guidelines with respect to the Grey-headed Flying-fox included the following statements:

"If you are complying with a current State permit or licence to shoot a specific number of Grey-headed Flying-foxes you do not need to make a referral under the EPBC Act for this activity. This will be in effect until June 2003 when the policy will be reviewed ...

Consultations between the Commonwealth and the relevant States (Queensland, New South Wales and Victoria) have resulted in agreement that the total number of Grey-headed Flying-foxes to be killed in accordance with State permits/licences in the 2002-2003 season will not exceed 1.5 per cent of the lowest agreed national population estimate for the species...

Therefore, under this agreement, if you have a valid State permit or licence to shoot a specific number of Grey-headed Flying-foxes you do not need to make a referral under the EPBC Act. Provided you do not kill more than the number of Grey-headed Flying-foxes on your permit, your action would not have a significant impact on the species.

If you have a valid State permit or licence to shoot a specific number of Grey-headed Flying-foxes you do not need to make a referral under the EPBC Act, provided you do not kill more than your permitted number."

8 The applicant, the Humane Society International Inc ("the Society"), sought a statement of reasons from the Minister. By letter dated 13 December 2002 the Minister informed the Society that the Guidelines were not made under any provision of the Act. They were intended, it was said, to "provide specific guidance to assist persons determine whether an action is likely to have a significant impact on the listed threatened Grey-headed Flying-fox. The guidelines help persons decide whether they should refer a proposed action under s 68 for a decision whether approval under the EPBC Act is required."

THE STATUTORY SCHEME

9 An action proposed to be taken by a person, such as killing animals of a listed species, may come before the Minister for decision in a number of ways. Chapter 4, Part 7 is entitled "Deciding whether approval of actions is needed". Division 1 of Part 7 contains provisions concerning referral of proposals to take such an action. Section 68(1), which is in the Division, provides for a referral by a person proposing the action. It provides:

"Referral by person proposing to take action

(1) A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action."

10 Section 67 explains what is a "controlled action":

"An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be prohibited by the provision. The provision is a controlling provision for the action."

11 On the other hand if a person does not think that the proposed action is one controlled by Part 3 they have a choice as to whether to refer the proposal to the Minister. Section 68(2) provides:

"A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action."

12 It will be observed that a person, such as a fruit grower, proposing action with respect to a listed species must form an opinion. A combination of s 68(1), the definition of "controlled action", and the provisions of Part 3 requires them to consider the impact that their action will have or is likely to have on the listed species in question. They are required to consider whether it is likely to be significant. The Act does not provide further guidance as to how that assessment is to be undertaken. One might expect that not many persons would have the requisite information or scientific knowledge to determine an effect upon a species, accepting that there may be cases where the action proposed can readily be discerned as not having an adverse effect. Senior Counsel for the Minister pointed out in argument that the report of the Senate Committee on the preceding Bill (the Report on Environment Protection and Biodiversity Conservation Bill 1988 and Environment Reform (Consequential Provisions) Bill 1998) had accepted that there would be a need to provide guidance on the meaning of "significant impact" but that detailed definitions were not considered to be practicable. The Act did contain a reference to matters which were prescribed by the regulations as necessary to be considered in determining the significance of the impact of an action (s 524B) but it was removed by the Environmental Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (No 82). The regulations do not, in any event, contain any provisions which might be of assistance. It is the Minister's case that the Guidelines fulfil that function.

13 If a person proposing action forms an opinion that their actions will have or are likely to have a significant impact on the species, they are obliged to refer the proposal to the Minister under s 68(1). If they do not, and the impact is such as to come within the prohibition of s 18(4), they are subject to penalties, injunctions and prosecution under the Act. The Minister may seek orders for a pecuniary penalty where a civil penalty is contravened (s 481(1)) and both the Minister or an "interested person" may apply for an injunction restraining a person from engaging in prohibited conduct: s 475(1).

14 A State or Territory may also refer a proposal to the Minister for a decision as to whether it is a controlled action (s 69), as may a Commonwealth agency (s 71), and the Minister may request a referral of a proposal from a person proposing action or from the State or Territory the Minister believes has administrative responsibilities relating to the action (s 70).

15 When a proposed action is referred the Minister is required to consider whether it requires approval. Section 75(1) provides for the first step in that process:

"Is the action a controlled action?

(1) The Minister must decide:

(a) whether the action that is the subject of a proposal referred to the Minister is a controlled action; and

(b) which provisions of Part 3 (if any) are controlling provisions for the action."

16 This subsection, the definition of controlled action, and the provisions of Part 3, on this occasion require the Minister to consider whether the proposed action will have or is likely to have a significant impact on the species. Before coming to a conclusion on that question the Minister is obliged to seek other information and comments.

17 Prior to considering the impact that the proposed action may have, and as soon as practicable after receiving a referral, the Minister is obliged to inform any other Commonwealth Minister whom the Minister believes has administrative responsibilities relating to the proposal and invite them to give information relevant to the determination whether the proposed action is a controlled action: s 74(1). The Minister is also obliged to inform State or Territory Ministers of the proposal and invite their comment, and to invite public comment by publishing the referral on the internet: s 74(2) and (3). These provisions do not apply if the proponent of the action has stated that the action is a controlled action: s 74(4). In making a decision under s 75(1), as to whether the action is one controlled by a provision of Part 3, the Minister must consider any comments raised in response to any invitation given under s 74. In considering the impacts of an action the Minister must consider only the adverse impacts it has, will have, or is likely to have, on the matter protected under Part 3: s 75(2).

18 Notice of the decision as to whether an action is a controlled action is required to be given: s 77(1). Where it is decided that it is a controlled action, the controlling provision is to be identified and a person designated as a proponent of the action: s 77(2) and s 75(3). That appointment is also notified. If the Minister decides that a particular provision in Part 3 is not a controlling provision, because the Minister believes the action will be undertaken in a particular manner, for example that it is not likely to have an adverse impact, this aspect of the decision must also be given: s 77(3). The Minister is to give reasons for the decision upon request under s 77(4).

19 Part 8 provides for the assessment of impacts of an action which the Minister has decided is a controlled action: s 81(1). The Minister considers what are the relevant impacts of the action (s 82) by choosing a method of assessment referred to in Division 3: s 85, s 87(1). They range from assessments on preliminary documentation and accredited assessment processes to environmental impact statements and public inquiries. Part 8 does not apply if an action is covered by a bilateral agreement or by a declaration made by the Minister: ss 83 and 84.

20 Section 45(1) provides that the Minister may enter into a bilateral agreement on behalf of the Commonwealth. A bilateral agreement is a written agreement that provides for one or more of the following:

"(i) protecting the environment;

(ii) promoting the conservation and ecologically sustainable use of natural resources;

(iii) ensuring an efficient, timely and effective process for environmental assessment and approval of actions;

(iv) minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (or vice versa)."

and is expressed to be a bilateral agreement: s 45(2).

21 A bilateral agreement between the Commonwealth and a State or Territory may declare:

"...that actions in a class of actions identified wholly or partly by reference to the fact that they have been assessed in a specific manner need not be assessed under Part 8".

(Part 5, s 47(1)). The Minister may enter into such an agreement only if:

"he or she is satisfied that assessment of an action in the specified manner will include assessment of the impacts the action:

(a) has or will have; or

(b) is likely to have;

on each matter protected by a provision of Part 3".

22 Subdivision B of Part 5 lists other prerequisites to a bilateral agreement.

23 A bilateral agreement may declare actions do not need approval under Part 9 where they are approved in accordance with an accredited management plan. Section 46(1) provides:

"Declaration of actions not needing approval

(1) A bilateral agreement may declare that actions in a class of actions specified in the agreement wholly or partly by reference to the fact that their taking has been approved by:

(a) the State or self-governing Territory that is party to the agreement; or

(b) an agency of the State or Territory;

in accordance with a management plan that is a bilaterally accredited management plan for the purposes of the agreement do not require approval under Part 9 for the purposes of a specified provision of Part  3."

24 The Minister may only accredit a management plan if satisfied that it meets criteria prescribed by the regulations, that there will be an adequate assessment of the impacts and that actions approved under the management plan will not have unacceptable or unsustainable impacts on a matter protected by a provision of Part 3: s 46(3). The Minister is required to lay a copy of the proposed management plan before each House of Parliament (s 46(4)) and it is subject to a motion for disallowance: s 46(5).

25 A person may take an action described in a provision of Part 3 without an approval under Part 9 if the action is one of a class of actions declared by the Minister to require approval and the action is in accordance with an operative accredited management plan: s 32. Section 33(1) provides for the making of the declaration. In this case the management plan is subject to a motion to oppose accreditation in either House of Parliament: s 33(4)- (8). The Minister also has power to exempt a specified person from the application of Part 3 of Chapter 4 if the Minister is satisfied that it is in the national interest: s 158(3) and (4).

26 There is presently no bilateral agreement or declaration made by the Minister which is relevant to actions affecting the two species of flying-fox, nor is there an accredited management plan.

THE APPLICATIONS

27 The Society seeks declarations and orders with respect to the Minister's "decisions, conduct and actions in entering into agreements" with the three States "to the effect that a person who holds a State permit or licence to take Grey-headed Flying-foxes during the 2002-2003 fruit season does not need to refer the taking under the [EPBC] Act". The orders are sought under the Administrative Decisions (Judicial Review) Act (1977) (Cth) "the ADJR Act") or s 39B Judiciary Act 1903 (Cth) and the Federal Court of Australia Act 1976 (Cth), ss 21 and 23. There is no challenge to the Society's standing to bring these proceedings.

28 The Society identifies three grounds for judicial review under s 5(1) and s 6(1) of the ADJR Act:

* That the procedures that were required by law to be observed in connexion with the making of the decisions or taking of the actions were not observed;

* That the respondent's decisions, conduct and actions were not authorised by the enactment in pursuance of which they were purported to be made;

* That the decisions, conduct and actions were otherwise contrary to law. In this respect the Society points to the fetter imposed by the Minister upon his considerations under the Act.

The Society seeks orders that the decision to enter into agreements with the States and the Minister's conduct in entering into the agreement are invalid and orders setting the decisions or agreements aside. Declarations are sought to the effect that the entry into the agreements and the statements made in the guidelines are of no legal force and effect. The Society also seeks an order of mandamus directing the Minister to exercise his statutory powers under the Act according to law and without reference to the agreements and the statements made in the Guidelines.

29 The Minister has filed a Notice of Objection to Competency as to both the ADJR proceedings and those brought under the Judiciary Act. At an earlier hearing on the Minister's motion in this regard I was not persuaded to rule the applications incompetent summarily and without further, more detailed, argument.

THE ADJR ACT REQUIREMENTS

30 Applications for review may be made under the ADJR Act where a person is aggrieved by "a decision to which this Act applies": s 5(1). Section 3(1) provides that a:

"decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be ... under an enactment ..."

31 The Minister submits that the Court does not have jurisdiction under the ADJR Act because his actions were not "decisions" to which that Act applies, they were not of "an administrative character" and they were not made "under an enactment". The questions whether there is a decision and whether it is one made under an enactment are necessarily inter-related and were treated as such by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. His Honour observed (at 336) that a reviewable "decision" is one for which provision is made by or under a statute and that a decision will generally be "final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration" (at 337). His Honour held that a decision is "made" under an Act if it is "a decision which a statute requires or authorizes" (336) or "for which provision is made by or under a Statute" (337). A reviewable decision was described by Lehane J as one made "in pursuance of" or "under the authority of" the statute: Australian National University v Lewins (1996) 138 ALR 1, 14. It has also been held that a decision is one made under an enactment where the statute, or a principle of law applicable to it, gives the decision legal force or effect: General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164, 169, 170, 172.

32 It is necessary first to identify the decisions made by the Minister. He has clearly decided that the taking of a certain percentage of the population of each of the species will not have a significant impact upon the viability of the species. The agreement with the three States reflects a decision that the numbers to be culled be allowed on a co-operative basis. He has decided that holders of a State permit, permitted to cull a specific number of the species, do not need to refer that proposed action to him.

33 It may be observed that the Act does not refer to a decision of the first kind, except that it poses the question, for both the Minister and the person proposing the action, whether the action will have a significant impact on the species. The agreements with the States are not of a kind envisaged by the Act, although they would not appear to be contrary to the statutory object of co-operation. They are of a more limited kind than a bilateral agreement. The last mentioned decision, that a referral of actions to the Minister will not be necessary, is not one required or authorised by the Act. Insofar as it purports to provide an exemption from a statutory obligation, not being an exemption provided for by the Act, is a matter to which I shall return.

34 The Society did not identify particular statutory provisions under which the decisions could be said to have been made, nor did the Society suggest that the decisions purported to be made in reliance upon powers contained in the Act, and to be reviewable on that basis: Blurton v Commonwealth Minister for Aboriginal Affairs (1991) 29 FCR 442, 448. Its principal contention was that the decisions should be taken to have been made under the Act.

35 In Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290, it was held (at 302-303) that a legislative provision operating upon a determination made by a Minister can be construed as impliedly conferring the statutory function of making the particular determination. Their Honours went on (303):

"...Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists."

36 In that case the Migration Act 1958 (Cth) provided that a condition of a grant of an entry permit to a "non-citizen" was that the Minister determine, in writing, that the person had the status of a refugee. The respondent applied to the Minister to be recognised as a refugee as defined in the United Nations Convention relating to the Status of Refugees of 1951. The Minister replied that he had decided that the respondent was not eligible for the grant of refugee status. The majority held (at 303) that the determination made by the Minister was made for the purposes of the statutory provision and that circumstances existed for its determination. There was no other apparent statutory source of obligation to consider whether such a determination should be made and no other authority to make it. Gibbs CJ and Brennan J dissented on the question whether the Commonwealth was the source of power, but the majority decision has been followed in Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 273.

37 It would not seem to me a sufficient connexion with a statute, for the purpose of treating a decision as made pursuant to it, to say, as the Society did, that the statute should have been the source of power. Clearly there needs to be a statutory authority but there must also be shown circumstances upon which the statutory provision was meant to operate.

38 In the present case there was statutory authority for a determination, on the part of the Minister, as to the significance of the impact on the species. Notably it is one to be made under the Act after seeking information or comment on the proposed action the subject of a referral and considering them, processes which have not been undertaken. Importantly, the determination is to be made when a reference is made to the Minister of a particular proposal. That is to say, the occasion for the exercise of s 75(1) has not arisen. The subsection cannot be taken to impliedly confer a statutory function. In these circumstances it is not necessary to consider the further question, whether that determination by the Minister would itself be a reviewable decision if it were made in connexion with a referral (see Bond, 337).

39 The other aspect of the Minister's decision in that regard, is that it could not be said to be operative or determinative, in the sense described in Bond, or to have legal effect. It might be otherwise if it were made in connexion with, or applied to, a referral. Those qualities are also absent from the decision that the holders of state permits do not need to refer action, the subject of the permits, to the Minister.

40 The Minister's decision in the latter respect, and the communication of it in the Guidelines, may have some effect. It is not however a legal effect produced by the Act. Rather the statements may have the effect that procedural fairness must be afforded to permit-holders in some circumstances. Growers holding state permits might argue that they had an expectation, because of the statements, that approval would not be denied on the ground that their actions were seen to have a significant impact on the species. That would not give them a substantive right to a decision in their favour, nor would it operate to prevent the Minister considering the facts of their case. It may however entitle them to put forward a case in the event that the Minister were minded to change his opinion (see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 20; Tasmanian Conservation Trust Inc v Minister for Resources and Gunn Ltd (1995) 55 FCR 516, 549).

41 The Society also relies upon the Minister's actions as conduct. Section 6(1) of the ADJR Act provides that conduct in which a person has engaged, is engaged, or proposes to engage "for the purpose of making a decision to which this Act applies" may be the subject of an order of review.

42 In Bond (at 341-342), Mason CJ held that "conduct" refers to actions taken rather than a decision made and to the conduct of the proceedings. Conduct is essentially procedural in character. Accordingly in Tasmanian Conservation Trust (at 550) Sackville J held that an "in-principle" approval was not conduct contemplated by s 6(1) of the ADJR Act. As his Honour also observed, the notion of conduct does not embrace unreviewable decisions which are steps in the deliberative process.

43 In the present case the Minister's decision about the numbers which might be culled might be viewed as a predetermination of a question posed by the statute, or part of a question. It is not procedural in nature. His communication of that view in the Guidelines does not convert it to conduct. The maintenance of a policy about permit-holders not being required to refer their proposed actions to him, whilst influential on procedures to be undertaken under the Act, is not itself procedural. It stands as the conclusion reached by the Minister because of his opinion about the extent of the impact which permit-holders' actions would have.

44 In my view there is not a decision under the Act, nor is there conduct capable of review under the ADJR Act. The objection to competency must be upheld in these respects.

SECTION 39B OF THE JUDICIARY ACT

45 Section 39B(1) provides that:

"...the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

46 Section 39B(1A)(c), to which reference was made in submissions, provides for jurisdiction in any matter arising under any laws made by the Parliament.

47 A writ of mandamus issues to compel the fulfilment of some duty of a public nature which remains unperformed: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 242. A refusal to perform may be implied: Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 504. In R v Metropolis Police Commissioner; Ex parte Blackburn sub nom R v Commissioner of Metropolitan Police; Ex parte Blackburn [1968] 2 QB 118, a case upon which the Society relied, the Commissioner had a policy not to enforce a provision of legislation concerning gaming clubs in London. As a result officers were instructed to seek approval to conduct observations within clubs for the purpose of detecting gaming. Whilst the Court of Appeal accepted that the Commissioner had a discretion not to prosecute, it held that he owed a duty to the public to enforce the law and that he could be compelled to perform it.

48 In Water Conservation and Irrigation Commission, the duty in respect of which an order was made, was one to consider an application for transfer of an irrigation farm licence and to exercise discretion to grant or refuse consent. The relevant duty in this case, which the Minister may be called upon to perform under the Act, is to consider referrals of proposed action, to determine whether they are "controlled" actions and, if so, to decide whether an approval should be given, after an appropriate assessment of the action is made and comments from others considered. Absent a referral, however, the occasion for the duty has not arisen and it is not possible to infer that the Minister has or will refuse to perform that duty.

49 The Minister's statement to state permit-holders, that they need not refer their actions to him, remains to be considered as one properly authorised. It does not however translate as a refusal, on his part, to undertake his duty should the advice not be accepted and a referral made. The Minister's decision on what impact permit-holders' actions might have, even if considered to be something of a predetermined view, is not a refusal to exercise his statutory duty and consider that question in light of other information or comments which are provided. Whether it operates as an impermissible fetter upon it, is a somewhat different question.

WHETHER A POLICY WITHIN DISCRETION

50 The Society submitted that what the Minister termed a general policy would be applied in every case and without regard to the circumstances of the case. The Society did not suggest that there was no evidentiary basis for a "policy" concerning the extent to which culling could be permitted without there being a significant impact on the species, or that it was irrational. It submitted that in applying it, the Minister would not be taking into account factors which might be relevant in a particular case.

51 A policy is not likely to be held invalid if it is consistent with the statute in respect of which it offers guidance, allows the decision-maker to take account of relevant circumstances and does not preclude them from considering the circumstances of a particular case and all relevant arguments which may run counter to the policy: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640-641. There Brennan J held valid a policy which was informative of the standards and values which the Minister usually applied. By contrast, in Green v Daniels (1977) 13 ALR 1, there was a general rule established pursuant to which persons who had left school prior to the end of the school year or during the vacation were to be treated as ineligible for employment benefits. So applied, it allowed for no consideration of the applicant's application and the circumstances pertaining to her.

52 In the present case, the statement made by the Minister as to the view he takes about the impact of actions to be taken by permit-holders is a strong indication that the Minister would not find their actions to be subject to Part 3. The statement is a reflection of the conclusion reached by the Minister, after the workshop discussions, as to the number of the species which might be culled in a year without significant impact upon the species. Regardless of the view held by the Minister he remains obliged by the Act to consider the views of others received as a result of the invitation he is required to extend under s 74 before he makes his decision under s 75(1). The statement made by the Minister, whilst no doubt a hurdle for a proponent of a different view, is not expressed to operate as a bar to the consideration of other facts or opinions. Whether the Minister in fact remains open to persuasion in a particular case is not something that can presently be anticipated. But the "policy" does not itself operate to cut across his statutory duty. It does not prevent him from requiring a referral or taking action against a person who acts outside their permit, or otherwise in a way which is prohibited by Part 3. The principal effect of the statement is to deter referrals, and it is that aspect of the Minister's actions which requires consideration.

WHETHER POLICY AN EXEMPTION

53 An unusual feature of this case, and one which renders less likely the prospect of judicial review of a decision by the Minister under s 75(1), is the Minister's advice to permit-holders that they need not refer their proposed actions to him. The Society submits that this purports to be an exemption from the operation of the Act, which the Minister is not authorised to give except by the means provided for. The Minister submits that he has not exercised the powers conferred by the Act. In particular he has not exercised the power to declare a class of actions to be exempt from the operation of Part 3 of the Act, as s 158 permits. Rather, it is submitted, he has merely informed permit-holders of the view he takes so as to assist them in the decision they must make about whether their action is a controlled action.

54 The Society has not suggested that the Minister has acted other than in good faith. Nevertheless, it would seem to me that the statement made in the Guidelines, to the effect that a person does not need to make a referral to him under the Act, goes rather further than advice to persons about how they might deal with the question posed by s 68(1). The statement is made by the Minister responsible for the administration of the Act and concerns the legal obligations of persons proposing action. The Minister is effectively saying that he does not require them to refer actions to him for consideration. In my view, in so doing the Minister has purported to exempt them from their statutory obligation.

55 The exemption provided is not however as extensive as the Society would contend for. It does not purport to wholly exempt persons' actions from the effect of Part 3, as s 158 would allow, nor does it render unnecessary an approval for an action which would otherwise be prohibited, as s 33(1) permits. A declaration under s 158 however may also effect an exemption of classes of action from the operation of Chapter 4, which contains s 68(1), the source of a person's obligation to consider the likely impact of their proposed action to decide whether it is controlled by Part 3, and, if so, refer it to the Minister. The procedure by which exemption from that obligation is provided by s 158 and is very limited. It requires an opinion, on the part of the Minister, that it is in the national interest that the exemption be provided. Whilst here the Minister has no doubt considered the co-operative arrangement with the States to be of advantage, there is nothing to suggest that he has addressed the question referred to in s 158(4).

56 An act done in breach of a condition regulating the exercise of statutory power is not necessarily invalid and of no effect. The question which must be addressed is whether there can be discerned a legislative purpose to invalidate the action for failure to comply with the condition. This requires consideration of the language of the relevant provision and the scope and object of the whole statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388-389.

57 The formulation of a policy about the numbers of these two species which might safely be culled and the co-operative agreement rendered with the States are within the objects of the Act. The same cannot be said of a purported exemption of a person from their obligation to consider the effects of their actions and, if necessary, to refer them to the Minister for his decision on that question. Whilst the statements made in the Guidelines were no doubt intended to provide for a more convenient and efficient course, they do not fulfil any statutory purpose. The powers of supervision and control of actions, which might impact upon vulnerable and other listed species, which are reposed in the Minister, do not extend to exemption from the possibility of their exercise except in the circumstances provided for. In my view the statements made were not authorised by the Act and cannot have the effect of granting an exemption from s 68(1).

WHETHER A DECLARATION

58 It remains to consider whether it is appropriate to make a declaration. A declaration of invalidity would not seem to be appropriate since the Guidelines, in which the purported exemption appears, do not themselves have legal force. The Minister submitted, in connexion with whether there was a "matter" for the purposes of the Judiciary Act, that there was no controversy involving a right as between the parties. It would seem to me that whilst neither the Society's rights or obligations can be the subject of a declaration, there is a real dispute between it and the Minister, as to how an aspect of the Minister's actions should be characterised and whether it required authorisation by law. A declaration would effect a resolution of those issues and should not be regarded as made in the abstract. Declarations as to the actions of Ministers not being undertaken in accordance with the law are not unknown: Gilbert v State of Western Australia [1962] HCA 7; (1962) 107 CLR 494, 519 is an example, accepting that the plaintiff's rights were also declared by the Court. A declaration that certain actions are not authorised by law inform the public of their statutory obligations. Such a declaration might be viewed as analogous to one declaring legislation invalid. Whilst it will not bind individuals, it can be seen as having utility.

59 In my view there should be a declaration that the exemption purported to be authorised by the Minister, of persons' obligations under s 68(1), namely to consider the effect of actions proposed by them and if they think it amounts to a "controlled action" within the meaning of the Act, to refer the matter to the Minister, is not authorised by the Act. Another, and perhaps a preferable course, would be for the Minister to publish a retraction of that part of the Guidelines, with a suitable explanation. If this were proposed to be undertaken I would be minded to vacate the order made.

60 I will hear from the parties as to the question of costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 12 February 2003

Counsel for the Applicant:	Mr S Keim and Mr C McGrath
Solicitor for the Applicant:	Environmental Defenders' Office
Counsel for the Respondent:	Mr P Hanks QC and Mr M Swan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 January 2003
Date of Judgment:	12 February 2003