Australian Deer Association Inc v Attorney-General for the State of Victoria
[2008] VSC 204
•13 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5057 of 2008
| AUSTRALIAN DEER ASSOCIATION INC | Plaintiff |
| v | |
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 21 April 2008 | |
DATE OF JUDGMENT: | 13 June 2008 | |
CASE MAY BE CITED AS: | Australian Deer Association Inc v Attorney-General for the State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 204 | |
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ADMINISTRATIVE LAW – Governor in Council – Order in Council to add item to the Processes List under the Flora and Fauna Guarantee Act 1988, Part 3 – Potentially threatening process – Amendment of nominated item – Whether power to amend – Whether nomination should have been rejected as not stating a process – Whether item as amended stated a process – Application for declaration of invalidity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Pizer | Ross Millen Lawyers Pty Ltd |
| For the Defendant | Dr K L Emerton SC | John Cain, Victorian Government Solicitor |
HIS HONOUR:
By amended originating motion the plaintiff, Australian Deer Association Inc, seeks a declaration that the addition of “Reduction in biodiversity of native vegetation by Sambar (Cervus Unicolor)” to the list of potentially threatening processes, by the Governor in Council on 18 December 2007, was not authorised by s 10(2) of the Flora and Fauna Guarantee Act 1988 (“the Act”) and was thus invalid and of no force and effect. The defendant to the proceeding is the Attorney-General who is the proper defendant in the case of a challenge to the validity of a decision of the Governor in Council.[1]
[1]FAI Insurances Ltd v Winneke (1982) 151 CLR 342, and see Shire of Beechworth v The Attorney-General [1991] 1 VR 325.
The impugned item concerns Sambar deer which were introduced into Victoria in the 19th century and have established themselves widely in Australia, particularly in Victoria.
The defendant accepts that the plaintiff has standing to bring the proceeding.[2] There are about 2,500 members of the plaintiff in Victoria. In an affidavit sworn in support of the application by the Victorian State President of the plaintiff it is stated that the plaintiff represents the widest possible deer interests in Australia, and that its members comprise the most experienced deer hunters and deer conservationists in the country. There are other types of deer but the Sambar is the largest and most difficult species of deer to hunt. For a long time the plaintiff has had dialogue with government in Victoria about deer, the deer population and other matters.
[2]See The Constitution of the plaintiff as at August 2006, cl 2.
The Act
It is useful to commence by noting the purpose and objects of the Act.
Section 1 states that the purpose of the Act is:
“… to establish a legal and administrative structure to enable and promote the conservation of Victoria’s native flora and fauna and to provide for a choice of procedures which can be used for the conservation, management or control of flora and fauna and the management of potentially threatening processes.”
Section 3(1) defines a number of words and phrases. Of these, “fauna” and “flora” mean any animal-life or plant-life respectively which is indigenous to Victoria. The phrase “potentially threatening process” is defined to mean “a process which may have the capability to threaten the survival, abundance or evolutionary development of any taxon or community of flora or fauna”. “Taxon” is defined to mean “a taxonomic group of any rank into which organisms are categorised”.
Section 4(1) states that the flora and fauna conservation and management objectives are:
“(a)to guarantee that all taxa of Victoria's flora and fauna other than the taxa listed in the Excluded List can survive, flourish and retain their potential for evolutionary development in the wild; and
(b) to conserve Victoria's communities of flora and fauna; and
(c) to manage potentially threatening processes; and
(d)to ensure that any use of flora and fauna by humans is sustainable; and
(e)to ensure that the genetic diversity of flora and fauna is maintained; and
(f) …
(g)… .”
Part 2 of the Act is concerned with Administration. Section 7(1) provides that the Act is to be administered by the Secretary. Under s 8(1) there is established a body called the Scientific Advisory Committee (“the Committee”). Section 8(2) provides that the functions of the Committee are to advise the Minister (a) on the listing of taxa or communities of flora and fauna and potentially threatening species, and (b) on any other flora and fauna conservation matters. The word “community” is defined in s 3(1) to mean “a type of assemblage which is or which is wholly or substantially made up of taxa of flora or fauna existing together in the wild”. Matters such as the composition and qualifications for membership of the Committee are provided for in the balance of s 8; among other things “All members of the Committee must be knowledgeable and experienced in the sciences of flora or fauna conservation or ecology” (sub-s (4)). Finally, s 9(1) provides that the Conservation Advisory Committee[3] and the Victorian Catchment Management Council[4] may provide advice to the Minister on any matter arising from the administration of the Act; a similar provision is contained in s 9(2) in relation to the provision of advice to the Secretary.
[3]This committee was established under the Conservation, Forests and Lands Act 1987 but no longer exists.
[4]Established under the Catchment and Land Protection Act 1994.
The Act makes provision for an Excluded List (s 5(1)), a Threatened List (s 10(1)) and a Processes List (s 10(2)). Placement on such lists is effected by order of the Governor in Council on the recommendation of the Minister, and publication of the order in the Government Gazette.
Part 3 of the Act contains provisions relating to listing. It commences with s 10, sub-s (1) of which is concerned with the Threatened List, and sub-s (2) of which is concerned with the Processes List. These lists are to specify:
(a)“any taxon or community of flora and fauna which is threatened” [the Threatened List], and
(b)“any potentially threatening process” [the Processes List].
The lists may be amended or repealed in whole or in part.[5] Section 10(3) provides that the Minister may make a recommendation under sub-s (1) or (2) only after considering a recommendation of the Committee. Subsection (6) provides that the Committee may recommend to the Minister that (among other things) “an eligible process” be added to or repealed from the Processes List. Subsection (7) provides that each of the Minister and the Committee in making a recommendation, and the Committee in preparing the list of criteria for eligibility, must have regard only to nature conservation matters.
[5]The Excluded List also may be amended or repealed in whole or in part (s 5(1)).
The present case is concerned with the addition of the one impugned item to the Processes List. For this reason, from this point I restrict references to the Act to those provisions relevant to an addition to the Processes List.
Section 11 is concerned with eligibility for listing. As to the listing of a potentially threatening process it provides that:
“(3)A potentially threatening process is eligible for listing if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna.
(4)The Committee is responsible for preparing and maintaining a set of criteria by which the eligibility of taxa or communities of flora or fauna or processes for listing can be determined.
(5)The set of criteria referred to in subsection (4) is of no effect unless it is included in regulations.”
Criteria for the purpose of s 11(4) is prescribed by primary criteria 5.1 and 5.2 in Schedule 1 to the Flora and Fauna Guarantee Regulations 2001 (“the Regulations”).
Section 12 provides for the making of a nomination for listing. It provides (omitting immaterial parts) that:
“(1)A person may nominate any … potentially threatening process to be added to or … repealed from the … Processes List.
(2)A nomination must be made to the Committee and must include any prescribed information and must be in writing addressed to the Secretary to the committee.”
It is to be noted that a nominator is not required to possess any qualification, scientific or otherwise.
The “prescribed information” referred to in s 12(2) is stated in Schedule 2 to the Regulations. It is convenient to interpolate reference to the relevant provisions of Schedule 2. Schedule 2 commences with the statement “INFORMATION WHICH MUST BE PROVIDED IN A NOMINATION UNDER SECTION 12(2) OF THE ACT” and specifies that information in 15 clauses. Clause 1 provides that in all cases the information must include the name, address, and if available telephone number of the nominator. Passing on to the relevant clauses, the requirements are:
“11. In the case of any potentially threatening process
(1)A statement identifying the potentially threatening process.
(2)The statement must-
(a)specify the potentially threatening process in accordance with a relevant text or reference; or
(b)describe the potentially threatening process in such a way that it is distinguishable from all other potentially threatening processes.
(3)The potentially threatening process must be described as a process and not as a cause or a symptom of a process.
12.In the case of a potentially threatening process nominated for addition to the Processes List
(1)Evidence showing that primary criterion 5.1 or 5.2 in Schedule 1 is satisfied by the potentially threatening process.
(2)The evidence must indicate-
(a)the range of flora or fauna affected or potentially affected; and
(b)the significance of the threat which the potentially threatening process poses or has the potential to pose.”
The next step, of consideration of a nomination, is dealt with in s 13. The Committee is required to consider a nomination as soon as possible after it has been made (sub-s (1)). The Committee may reject a nomination if (among other things) it is not accompanied by the prescribed information (sub-s (3)(c)). If a nomination is rejected the committee must so notify the Minister and nominator and give reasons (sub-s (4)).
Section 14 is addressed more particularly to the consideration process. After considering a nomination the Committee must make a preliminary recommendation that the nomination be supported or not supported (sub-s (1)), and as soon as possible notify the nominator, advertise the preliminary recommendation, and publish notice of the making of the preliminary recommendation in the Government Gazette (sub-s (2)). After so advertising the Committee must allow 30 days to elapse for public comment to be made and must consider any public comments made in that time (sub-s (3)).
The next stage is the making of a final recommendation by the Committee. This is dealt with in s 15 which provides that after considering any public comments the Committee must make a recommendation to the Minister that the nomination be supported or not supported and give reasons therefor (sub-s (1)). When the recommendation is made the Committee must notify the nominator, the Conservation Advisory Committee and the Victorian Catchment Management Council thereof, advertise the recommendation and publish notice thereof in the Government Gazette (sub-s (3)).
The penultimate stage in this process is the decision of the Minister on the recommendation. Section 16 deals with this. It provides that after considering the Committee’s recommendation and any comments of the Conservation Advisory Committee and the Victorian Catchment Management Council, the Minister must within 30 days of receiving the Committee’s recommendation decide whether or not to recommend to the Governor in Council that the potentially threatening process be added to or repealed from the Processes List (sub-s (1)). The decision must be advertised and published in the Government Gazette. The final stage is the decision of the Governor in Council on the recommendation.
The Act then moves to the matter of the consequence of a potentially threatening process being added to the Processes List. This is dealt with in Divisions 2 and 3 of Part 4 of the Act. In Division 2, s 19 provides that as soon as possible after listing a potentially threatening process the Secretary must prepare an “action statement” for that process (s 19(1)). The action statement must set out what has been done to conserve and manage the process and what is intended to be done and may include information on what needs to be done (s 19(2)). In preparing or amending an action statement the Secretary must consider:
(a)any management advice given by the Committee, the Conservation Advisory Committee and the Victorian Catchment Management Council, and
(b)any other relevant nature conservation, social or economic matters (s 19(3)).
Division 3 provides that the Secretary may make a management plan for a potentially threatening process (sub-s (1)). Before making a plan the Secretary must prepare a draft management plan, consult with any landowner or water manager whose interests may be affected, publish notice of the plan and receive submissions. After considering any submissions the Secretary may make the management plan with or without changes following which he or she must give notice thereof (sub-ss (3)-(7)). Section 23(1)(a)-(d) requires that a management plan state the potentially threatening process to which it relates, the way in which the flora or fauna management objectives are to be implemented or promoted for the benefit of the management of that process and the method by which progress towards achieving those objectives can be assessed, the nature conservation and the social and economic consequences of the plan and the date by which the plan should be reviewed. In making or amending a management plan the Secretary must consider any relevant nature conservation, social or economic matters and any other relevant matter (s 23(2)).
Evidence
The evidence was given by affidavit, there being two deponents for the plaintiff and two for the defendant, none of whom were cross-examined. The plaintiff’s deponents were William Maxwell Rheese, the Victorian State President of the plaintiff, and Ross Kenneth Millen, the plaintiff’s solicitor. The defendant’s deponents were Kimberley Dripps and Martin O’Brien.
Ms Dripps is the Executive Director of Biodiversity and Ecosystem Services in the Department of Sustainability and Environment (“DSE”). She is also responsible for the administration of the Act and other areas related to Biodiversity and Ecosystem Services. Mr O’Brien is employed in the DSE where he has a dual role. One role is that of a policy officer in the Biodiversity and Ecosystem Services section of the DSE which involves working on threatened species issues under the Act. The other role is that of Executive Officer providing secretarial and scientific support to the Committee; he has had that role since March 1997.
Facts
In or about early November 2005 the Committee received a written nomination that “Degradation and loss of terrestrial habitats caused by Sambar (Cervus unicolor)” be considered for listing as a potentially threatening process under s 10(2) of the Act (“the Nomination”). The Nomination document was entitled with that description and ran to eight pages including over a page of bibliographical references. It referred to the introduction of Sambar in Victoria, their distribution and habitat, and conservation status. It then discussed the ecological impacts of Sambar and other deer species. As Mr O’Brien deposed, the Nomination pointed to the threat to Threatened, Rare, Vulnerable and Endangered plant species, and to other plant communities as a result of browsing by, and antler damage caused by, Sambar deer. There was also said to be damage caused by trampling. Threatened plant species are listed under Schedule 2 of the Act. Rare, Vulnerable and Endangered plant species are listed in an Advisory List maintained by the DSE. The purpose of the Advisory List is to list vascular plants, bryophytes and fungi that are considered extinct, endangered, vulnerable, rare or poorly known in Victoria. The Nomination also addressed the primary criteria 5.1 and 5.2. Among other things, it was stated that Sambar seriously threatened 12 Threatened, Rare, Vulnerable and Endangered plant species, numerous other plant species, and were highly likely to threaten other species not yet identified. It was further stated that by threatening the long-term survival of numerous species and communities Sambar deer were threatening the evolutionary development of numerous flora and fauna species.
On 3 November 2005 the Committee wrote to the nominator acknowledging receipt of the Nomination. Thereafter the Committee considered the Nomination at meetings on 8 November 2005 and 14 February 2006.
On 17 February 2006 the Committee wrote to the nominator requesting further information. The nominator duly provided further information.
The Nomination was further considered at a meeting on 13 June 2006 at which the Committee made a preliminary recommendation under s 14(1) of the Act that “Reduction in biodiversity of native vegetation by Sambar (Cervus unicolor)” be added to the Processes List. The difference between that description of the item and that stated in the Nomination is to be noted. That difference founds one of the defendant’s grounds of attack on the listing.
Mr O’Brien deposed that the reason why the summary description (or title) of the nominated threatening process was changed in the preliminary recommendation was that the description “Reduction in biodiversity of native vegetation by Sambar (Cervus unicolor)” was thought by the Committee to better describe the process identified as threatening in the Nomination than did the summary description (or title) of the process given by the nominator. Mr O’Brien stated that in his experience it was not unusual for the Committee, in consultation with the nominator, to change the summary description (or title) of a process to better reflect or describe the substance of the nominated threatening process. In effect, Mr O’Brien deposed, the threatening process identified and described in the body of the Nomination was the threatening process that was described in the preliminary recommendation.
On 14 June 2006 Mr O’Brien emailed the nominator with advice that the Committee had decided there was sufficient evidence to support the nomination of Sambar as a threat but would like to alter the title of the nomination to “Reduction in biodiversity of native vegetation by Sambar (Cervus unicolor)”. Once the nominator accepted that title the Committee would go ahead with compiling the preliminary recommendation for that item. On or about 14 June 2006 the nominator telephoned Mr O’Brien and advised agreement with the suggested summary description or title of the process identified in the Nomination. The preliminary recommendation is a six page document which reflects independent consideration of the Nomination by the Committee. In July 2006 notice of the preliminary recommendation was advertised and published in the Government Gazette. A number of submissions were received including two from the plaintiff.
On 13 March 2007 the Committee resolved on a final recommendation that “Reduction in biodiversity of native vegetation by Sambar (Cervus unicolor)” be added to the Processes List under s 10(2). On 2 May 2007 the final recommendation was endorsed by the convenor of the Committee. Thereafter the final recommendation was notified to the nominator and advertised.
The final recommendation is a five page document and evidently the work of the Committee. The structure and content varies somewhat from the preliminary recommendation but the substance remained the same, being damage to plant species and evolutionary processes resulting from the browsing and grazing activities of Sambar deer. It was stated, among other things, that the range of flora and fauna affected or potentially affected was adequately stated in the Nomination. It was further stated that the significance of the threat which the potentially threatening process posed or had the potential to pose was adequately stated in the Nomination. It referred to a number of sources of information and to 44 submissions having been received none of which warranted a review of the Committee’s preliminary recommendation that the process was eligible for listing. It then stated as its decision that:
“The SAC has assessed the information provided with the nomination, the published literature, unpublished data, public submissions and additional expert advice and has found uniform agreement that Sambar numbers in Victoria are high and increasing and that the species continues to extend its range. All available evidence suggests the impact Sambar are having on native vegetation in Victoria is increasing.
The Committee therefore makes the following conclusions. The Committee believes there is currently sufficient scientific evidence to demonstrate that:
(a)reduction in biodiversity of native vegetation by Sambar poses or has the potential to pose a significant threat to the survival of two or more taxa;
(b)the process operates at a landscape level;
(c)Sambar are the key species contributing to this threat;
(d)the threat is distinguishable, additional and distinct from any threat posed by native herbivores.”
The Committee then found that sub-criteria 5.1.1 and 5.1.2 were satisfied and concluded with a final recommendation that the nominated item be supported for listing in Schedule 3 of the Act.
On 28 June 2007 Mr Rheese wrote to the Chief of Staff of the Minister raising the plaintiff’s concerns about the final resolution. Ms Dripps responded by letter on 6 August 2007.
On 23 October 2007 the convenor of the Committee wrote to the Minister formally advising the final recommendation.
On 12 November 2007 the Minister decided to recommend to the Governor in Council that the recommended item be added to the Processes List.
On 29 November 2007 the Minister’s decision was published in the Government Gazette. It was also duly published in newspapers. In view of the plaintiff’s express concern about the listing, on 29 November 2007 the Minister wrote to the plaintiff to inform it in advance of the public announcement of his decision.
On 3 December 2007 an officer of the DSE wrote to the plaintiff inviting it to participate in a Working Group to draft the Flora and Fauna Action Statement in relation to the recommended item.
On 18 December 2007 the Governor in Council made the order adding “Reduction in biodiversity of native vegetation by Sambar (Cervus unicolor)” to the Processes List, and on 20 December 2007 the order was duly published in the Government Gazette. The Processes List dated December 2007, and including the added entry, is Exhibit RKM 2 to Mr Millen’s affidavit sworn on 11 April 2008.
On 7 March 2008 the plaintiff filed the originating motion.
The consequence of the listing is that an action statement must be prepared under s 19. The DSE has formed a working group to provide direction for the action statement, the participants in which include peek deer hunting organisations, relevant land management agencies and other interests. The plaintiff is a member of the group. The group had met on 20 February 2008 and 26 March 2008. Ms Dripps stated that the practical effect of the listing will be the implementation of the management objective to reduce the impact of Sambar deer on the biodiversity of vegetation in specific areas where rare and threatened plant populations are particularly at risk. In the first instance a draft action statement will be prepared and released for public comment. Ms Dripps deposed that, without pre-empting what the final action statement might contain, in its development all viable methods for addressing the reduction in biodiversity of native species identified will be investigated. This could include exclusion, deterrence or reduction of the numbers of Sambar deer. Reduction may require the active assistance of recreational hunters in areas where it is presently not permitted.
Grounds in the originating motion
In the amended originating motion the grounds upon which declaratory relief is sought are:
(a)The power to add a potentially threatening process to the Processes List under s 10(2) may only be exercised in respect of a process that has been nominated under s 12(1). As the process nominated was not that placed on the list the impugned item was not authorised by s 10(2).
(b)The addition of the impugned item to the Processes List was not authorised by s 10(2) because the item was not a “process”.
Decision
As to these grounds, counsel for the plaintiff submitted as follows.
In his initial address I understood counsel, in relation to the first ground, to distinguish between that which is nominated and the text or reference material which accompanies the nomination. The nomination in this sense is the statement which is to be placed on the Processes List, and is that which is required by cl 11(1) of Schedule 2 to the Regulations. As to the Nomination in this case, counsel submitted that its amendment to the impugned entry was ineffective as there was neither express nor implied power under the Act to amend a nomination. As to a power to amend, counsel conceded the existence of an implied power to amend, but submitted that such power was limited to “a slip or typographical error or something like that”. He submitted that no broader power to amend could be implied. In the course of these submissions counsel also submitted that the initial nomination was not a “process” as required by the Act.
In his reply counsel raised the question as to what constituted the Nomination. He conceded that it was the whole document, not merely the title. Thus the description of the process may be in the title or within the text of the document. In this case the only proper reading of the document was that the title stated the process. But in fact the title (and the text) did not state a process as required by cl 11 of the Regulations. Rather, the text contained “a description of Sambar deer”.
The second ground is founded on the requirement that that which is to be added to the Processes List be itself a process and not, as stated in cl 11(3) of Schedule 2 “a cause or a symptom of a process”. Noting that the Act did not define the word “process”, counsel for the plaintiff referred to dictionary meanings for assistance. The Macquarie Dictionary defined “process” to mean “1 a systematic series of actions directed to some end: the process of making butter. 2 a continuous action, operation, or series of changes taking place in a definite manner: the process of decay“. The Shorter Oxford Dictionary defined process to mean:
“4.A thing that goes on or is carried on; a continuous series of actions, events, or changes; a course of action, a procedure; esp. a continuous and regular action or succession of actions occurring or performed in a definite manner; a systematic series of actions or operations directed to some end, as in manufacturing, printing, photography etc.”
It was submitted that the entry did not specify what actions of the Sambar deer – whether systematic, continuing, regular or performed in a definite manner – were said to be occurring that led to the alleged reduction in biodiversity of native vegetation. Rather than describe a process the entry described a symptom, effect or outcome of either an undefined process or unspecified actions that did not constitute a process. Accordingly, the addition of the item to the Processes List was not authorised by s 10(2) and was invalid.
Counsel for the Attorney-General advanced a number of reasons why the plaintiff’s grounds must fail. I agree that that is the result and that the proceeding should be dismissed. The reasons for that conclusion, which lie in understanding the effect and operation of the Act, the Nomination and the final recommendation, may be shortly stated.
It is important to bear in mind the statement of purposes in s 1 of the Act. The statement explains that the Act establishes “a legal and administrative structure to enable and promote the conservation of Victoria’s native flora and fauna”. The statement of objectives in s 4(1) sheds light on the statement of purposes, and their attainment. Each statement is expressed in broad terms. The Act then establishes structures for the purpose of identifying, and placing on a list, a taxon or community of flora and fauna or a potentially threatening process. The effect of placing on a list is to require the preparation of an action statement, and possibly a management plan, as the means for achieving the object of nature conservation or, more particularly in the present case, of managing a potentially threatening process. The listing of a potentially threatening process does not otherwise involve the imposition of a legal obligation or penalty on any person. Rather, the consequence is to trigger the next step of an action statement for the purpose of managing the process in question.
Central to the system of listing is the role of the Committee. It is an expert committee “knowledgeable and experienced in the sciences of flora or fauna conservation or ecology”, evidently constituted as such in order that it may bring its expertise to bear in the consideration of a matter nominated for listing.
As mentioned earlier, there is no requirement on a nominator to possess any qualification. Hence a nomination may include a greater or lesser degree of scientific or other relevant information. Provided that the information supplied was not so insufficient as to lead the Committee to reject it under s 13(3)(c), and as to which the Committee has a discretion in any event, the nomination will be considered by the Committee bringing to bear the expertise of its members.
Then, after considering the nomination the Committee must make a preliminary recommendation that the nomination “either be supported or not be supported”. The same expression is used in s 15 in respect of a final recommendation. The Act does not define the word “support” in its use in s 14 and s 15. Counsel for the Attorney-General submitted that “supported” did not mean “accepted” and that “not be supported” did not mean “rejected”. I accept that submission, the correctness of which is evident on a consideration of the role of the Committee. The Committee is an independent body of experts established for the purpose of appraising, and supporting or not supporting, a nomination. To a greater or lesser extent the Committee’s support may be found in its own developed reasons. It is an administrative consideration and not a curial answer to a defined issue. Moreover, correctly and inevitably counsel for the plaintiff conceded that the Committee did not act as a mere cipher or a post box to receive and accept or reject a nomination. It brings its mind to bear upon the nomination, being limited of course to nature conservation matters (s 10(7)).
Furthermore, the Committee cannot make a final recommendation without considering any public comments made in response to the advertising of the preliminary recommendation.
There is thus established a scheme in which there is to be considered the information provided by the nominator, the views and opinions of the members of the Committee in considering the nomination, and any public comments, before a final recommendation is made.
In the present case the nominator provided further information to the Committee at its request. In my view it is readily understandable that the Committee might desire to be assisted by further information whether overlooked or inadequately covered in the initial nomination document or otherwise of or in relation to a matter that arose in the course of the Committee’s consideration. It was not suggested that it was not open to the Committee to have sought further information. Indeed, in my view, the absence of an express power in the Committee to seek further information is not to be considered as excluding the power to do so. To so interpret the Act, and restrict the ability of the Committee to be better informed as to the nomination, would be to fetter the ability of the Committee to perform its role. Such an interpretation would also be inconsistent with the existence of the discretion in s 13(3). That is because s 13(3) contemplates that a nomination need not be rejected even if it is not accompanied by the prescribed information. In that event the Committee would presumably revert to the nominator for the provision of the prescribed information.
These considerations emphasise the central role of the Committee as the filter between receipt of a nomination and making a final recommendation. It is apparent that in performing this role the Committee brings its expertise to bear in arriving at a formulation of a recommendation based upon the nomination. It may occur, and it did in this case, that the ultimate formulation of that found in the final recommendation differs in some respects from the Nomination, and from the preliminary recommendation. The fact of such differences reflected no more than the consequence of the performance of its role by the Committee.
The operation of the Act as I have sought to describe it is consistent with the attainment of the purposes and objectives of the Act.
I turn then to the question whether there was power to amend the title to the Nomination. The change was not merely to the title to the nominating document but was intended to change the description of the process to be listed in the Processes List. In my view it was open to the Committee to suggest the change as better reflecting the processes described in the Nomination. In my view it was also open to the nominator to agree to the change, and for the Nomination to proceed to consideration with that changed description. Apart from the nominator providing further information, the Nomination document, and thus the statement of the processes, did not change. In my view there is nothing in the Act which precluded the change in description as occurred in this case. Indeed I consider that to infer (from the absence of express provision to amend) a construction that amendment was prohibited, would be contrary to the sensible facilitation of the attainment of the purposes and objectives of the Act. It could or would result in a nomination failing simply because the suggested description or title was considered more or less inapt to describe the potentially threatening process stated in the nomination. How such a result could be considered sensible, let alone intended by the legislature, when a fresh nomination could be made to cure the situation, was not explained. All that counsel for the plaintiff could suggest was the existence of an implied power to amend for slips and typographical errors or the like, but the basis on which such a limited – and not a wider - power was to be found by implication, was not suggested. I reject the submission.
For these reasons the plaintiff’s first ground must fail. I do not overlook that in his submissions on that ground counsel also said that the initial description or title in the Nomination did not describe a process. As, however, I am of the view that the description or title was amended the question is whether the amended description or title described a process. That question is covered by the second ground to which I now turn.
The point raised by the second ground is that the impugned item added to the Processes List does not state a process. Rather, the plaintiff submits that it states a symptom, effect or outcome of either:
(a)An undefined process; or
(b)Unspecified actions that do not constitute a process.
As to what constitutes a “process”, for this purpose both counsel referred to the dictionary meanings referred to earlier. In essence they refer to a course of action or actions with a continuing effect. But the word “process” is not to be considered in the abstract. It is to be considered in its usage in the Act. That is as part of the expression “potentially threatening process” which s 4 defines to mean “a process which may have the capability to threaten the survival, abundance or evolutionary development of any taxon or community of flora or fauna”. The expression being thus defined s 11(3) provides that a potentially threatening process “is eligible for listing if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna”. The difference here is that while the definition refers to the “capability to threaten”, eligibility for listing requires the process to have the potential to pose “a significant threat”.
The plaintiff’s submission seemed to concentrate attention on the description or title in the final recommendation, or in the initial Nomination, as though it could properly be considered separate from the accompanying text. In his submissions in reply, however, counsel for the plaintiff took a broader approach that permitted reading the title and the text together to ascertain whether a process was identified. This was also the approach of counsel for the Attorney-General. For reasons referred to below, I accept this as the correct approach. However counsel for the plaintiff went on to submit that on so reading the document, no “process” was disclosed. Rather, all that was discerned was a reference to the browsing and grazing habits of Sambar deer without identification of a defined “process”. I do not accept this submission.
My reasons in relation to the first of the above submissions are these. In the first place neither the Act nor the Regulations differentiates in the way counsel initially did between the description or title which is added to the Processes List and the balance of the information making up the nomination. All that s 12(2) requires is a nomination which includes the prescribed information. Consistently with s 12, cl 11(1) of Schedule 2 requires a statement that identifies the potentially threatening process. There is no reason why this identification or description may not be found in the body of the nominating document.
In the end, in my view, the plaintiff’s submission comes down to an assertion that the final recommendation (or, for that matter, the initial Nomination) did not identify or describe a potentially threatening process eligible for listing.
In my view it is apparent on the plain reading of the final recommendation that it does identify or describe such a process, namely the browsing and grazing activities of Sambar deer and the consequences thereof on taxa and communities of flora as stated in the final recommendation. The browsing and grazing activities cannot be characterised as some sort of once-off action unrelated to the identified consequences. That is because there is an ongoing relationship or nexus between the actions and the consequences all of which are an ongoing and inter-related continuum.
These reasons render it unnecessary to consider whether the description in the final recommendation, which was duly added to the Processes List, was itself, and without reference to the text, sufficient to describe a “process”. Counsel for the Attorney-General submitted that it was, seeking aid in this respect from the expression of items in the Processes List in Schedule 3 to the Act. As to this I merely record my view that the item was apt to describe a process. I would also have so concluded in respect of the description or title in the Nomination.
For these reasons I am of the view that the application for declaratory relief must fail.
It remains to mention some points made by counsel for the Attorney-General concerning cl 11(3) of Schedule 2 which requires that a process be described as such and not as a cause or a symptom of a process. First, it was difficult to know what it means. She submitted that it could only mean that the process had to be described in terms of both cause and effect. I would be disposed to accept that submission. Secondly, she submitted that cl 11(3) pertained to the description of the process in a nomination but not to the description of the process in a final recommendation. On that basis the identification of a process in a final recommendation would not be restricted by cl 11(3), even if narrowly construed. Thirdly, she submitted that it is doubtful whether cl 11(3) can be called in aid in the construction of the word “process” in the Act, as the earlier form of the Regulations which included cl 11(3) was not made contemporaneously with the Act but in 1999 three years after the Act came into force; see Blue Wedges Inc v Minister for the Environment, Heritage and the Arts[6]. In the absence of developed argument on these points, and it being unnecessary to do so in view of the conclusions I have already reached, I do not undertake consideration of them.
[6][2008] FCA 8, [31].
The proceeding will be dismissed with costs.
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