Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services
[2019] WASCA 102
•31 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CONSERVATION COUNCIL OF WA INC -v- THE HON STEPHEN DAWSON MLC, MINISTER FOR ENVIRONMENT; DISABILITY SERVICES [2019] WASCA 102
CORAM: BUSS P
BEECH JA
PRITCHARD JA
HEARD: 5 MARCH 2019
DELIVERED : 31 JULY 2019
FILE NO/S: CACV 26 of 2018
BETWEEN: CONSERVATION COUNCIL OF WA INC
First Appellant
SHIRLEY WONYABONG
ELIZABETH WONYABONG
VICKY ABDULLAH
Second Appellants
AND
THE HON STEPHEN DAWSON MLC, MINISTER FOR ENVIRONMENT; DISABILITY SERVICES
First Respondent
CAMECO AUSTRALIA PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MARTIN CJ
Citation: CONSERVATION COUNCIL OF WESTERN AUSTRALIA (INC) -v- THE HON STEPHEN DAWSON MLC [2018] WASC 34
File Number : CIV 2089 of 2017
Catchwords:
Planning and environment - Proposal likely to have significant effect on environment - Report by Environmental Protection Authority (EPA) - EPA report recommended that proposal not be implemented - Appeal to Minister against that recommendation - Appeal to Minister dismissed - Subsequent Ministerial Statement that it had been agreed by the relevant Ministers that the proposal may be implemented subject to stipulated conditions and procedures - Whether such a Ministerial Statement was in breach of s 45(6)(a)(ii) of the Environmental Protection Act 1986 (WA)
Legislation:
Environmental Protection Act 1986 (WA), s 44, s 45, s 100, s 101
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | B W Walker SC & J Schoombee |
| Second Appellants | : | B W Walker SC & J Schoombee |
| First Respondent | : | A J Sefton & P D Spragg |
| Second Respondent | : | S K Dharmananda SC & K A T Pederson |
Solicitors:
| First Appellant | : | Environmental Defender's Office (WA) Inc |
| Second Appellants | : | Environmental Defender's Office (WA) Inc |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises) Case [2018] FCAFC 88; (2018) 262 FCR 473
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136
Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34; (2018) 229 LGERA 43
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
Mohammadi v Bethune [2018] WASCA 98
Mount Barker Property Investments Pty Ltd v District Council of Mount Barker and Minister for Transport [2001] SASC 249; (2001) 80 SASR 449
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315
Re Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151
Registrar of Titles (WA) v Franzon [1975] HCA 41
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195
Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17
BUSS P & BEECH JA:
Introduction
On 12 November 2014, the second respondent (Cameco) referred to the Environmental Protection Authority (the EPA) a proposal to develop a uranium mine and associated infrastructure at Yeelirrie. On 3 August 2016, the EPA provided a report (the EPA report) to the Minister for Environment (the Minister). The EPA report recommended, relevantly and broadly speaking, that the proposal should not be implemented because of its potential impact on subterranean fauna. Various parties appealed to the Minister against aspects of the EPA report, including its conclusions concerning subterranean fauna. On 14 December 2016, the Minister dismissed the appeals as to the EPA's conclusions concerning subterranean fauna.
Subsequently, on 16 January 2017, the Minister issued a statement that, in effect, the relevant decision‑makers had agreed that the proposal may be implemented, subject to various stated conditions.
The appellants contended in the primary proceedings, and now contend on appeal, that the Minister's statement approving implementation of the proposal was invalid because it was issued in breach of s 45(6)(a)(ii) of the Environmental Protection Act 1986 (WA) (the Act). That section provides, relevantly, that 'if an appeal is lodged … [against an EPA report], the proposal to which that report relates shall not be implemented … otherwise than in accordance with the decision made on the appeal'. The appellants contend that, on a proper construction of the Act, a proposal may not be implemented where, as here, the Minister dismisses an appeal against an EPA recommendation that the proposal should not be implemented, because to allow implementation would be 'otherwise than in accordance with the decision made on the appeal'. In our opinion, for the reasons that follow, which substantially overlap with the reasons of the primary judge, the primary judge was correct to reject the appellants' contention. Consequently, the appeal must be dismissed.
The facts
The facts giving rise to the issues in this appeal are not, and were not, in dispute. The following outline is taken from: (1) the affidavit of Mr Sutton, an officer of the EPA, whose affidavit was tendered in the primary proceedings without cross‑examination; and (2) the primary reasons.
In May 2009, BHP Billiton Ltd, the then owner, referred a proposal to develop a mine of uranium ore from a deposit at Yeelirrie with associated mine infrastructure (the Yeelirrie Project) to the EPA for environmental impact assessment under pt IV of the Act. The EPA decided to assess the proposal. However, before that process had been completed, Cameco acquired the project from BHP Billiton.[1]
[1] Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34; (2018) 229 LGERA 43 (primary reasons) [38].
By letter dated 12 November 2014, Cameco referred a revised proposal to develop the Yeelirrie Project to the EPA, requesting termination of the earlier assessment process.[2]
[2] Primary reasons [39]; affidavit of Mr Anthony Sutton dated 22 August 2017 (Sutton affidavit) [8], annexure AS 1.
On 15 December 2014, the chairman of the EPA published a statement determining that the Yeelirrie Project would be assessed by the EPA by way of Public Environmental Review (PER).[3]
[3] Primary reasons [41]; Sutton affidavit [9], annexure AS 2.
On 8 May 2015, the EPA published the environmental scoping document for the Yeelirrie Project, determining the form, content and timing of the PER.[4]
[4] Primary reasons [42]; Sutton affidavit [10], annexure AS 3.
In September 2015, Cameco published its PER document for the Yeelirrie Project.[5]
The EPA report
[5] Primary reasons [42]; Sutton affidavit [11], annexure AS 4.
After receiving and considering public submissions concerning Cameco's PER document, and Cameco's response to those submissions, the EPA provided its report to the Minister. The EPA report was published on 3 August 2016.[6] The primary judge said, as follows, regarding the report:
In its report to the Minister the EPA described the process which had preceded the report, including the key environmental factors raised in the public submissions received in response to Cameco's PER document. The EPA reported to the Minister that nine key environmental factors were identified in the course of the assessment process, including potential impacts upon subterranean fauna as a result of loss of habitat due to de‑watering and excavation. The report concluded that it was not possible to meet the EPA's environmental objectives in relation to that factor, although it was possible to meet the EPA's environmental objectives in relation to the eight other key environmental factors identified. In particular, the report concluded that in relation to subterranean fauna, the proposal was unable to meet the EPA's environmental objectives having regard to the three principles specified in s 4A of the Act which I identified earlier [namely, the precautionary principle, the principle of the conservation of biological diversity and ecological integrity, and the principle of intergenerational equity]. As a result of that conclusion, the EPA recommended to the Minister that the proposal should not be implemented.
[6] Primary reasons [45]; Sutton affidavit [12], annexure AS 5.
The EPA report identified the EPA's environmental objective for subterranean fauna as being to 'maintain representation, diversity, viability and ecological function at the species, population and assemblage level'.[7]
[7] EPA report, page 16, GAB 504.
The EPA report said as follows concerning the subterranean fauna issue:[8]
The EPA is of the view that there remains too great a chance of a loss of species that are restricted to the Impact Area and therefore considers that the impact is such that the proposal should not be implemented.
The EPA concludes that the proposal cannot be implemented to meet its environmental objective in relation to subterranean fauna having regard for the Precautionary Principle, the Principle of the conservation of biological diversity and ecological integrity and the Principle of intergenerational equity.
[8] EPA report, page 3, GAB 491. See also EPA report, page 27, GAB 515.
Elsewhere in the EPA report, the EPA referred to, and reiterated, its view that there was too great a chance of a loss of species and, therefore, the proposal should not be implemented.[9]
[9] EPA report, pages 71 - 72, GAB 559 - 560.
The EPA report set out the following recommendations:[10]
That the Minister for Environment notes:
1.the report on the key environmental factors of Subterranean Fauna, Flora and Vegetation, Terrestrial Fauna, Human Health, Hydrological Processes, Inland Waters Environmental Quality, Heritage, Rehabilitation and Decommissioning, and Offsets, set out in Section 3;
2.that the EPA has concluded that the proposal cannot meet the EPA's environmental objectives for Subterranean Fauna, having regard to the Precautionary Principle, the Principle of the conservation of biological diversity and ecological integrity, and the Principle of intergenerational equity and therefore should not be implemented.
3.the EPA's other advice presented in Section 5 and Appendix 6 about conditions, should the Minister determine that the Proposal may be implemented. (emphasis added)
[10] EPA report, pages 78 - 79, GAB 566 - 567.
The EPA report went on, in section 5 of the report, to provide advice as to conditions which should be imposed in the event that the Minister decided that the proposal may be implemented.[11] The recommended conditions were specified in Appendix 6 of the report. The conditions recommended included conditions regarding the impacts on subterranean fauna. In that regard, the report said that uncertainty surrounding the potential for serious or irreversible damage to subterranean fauna species:[12]
may be mitigated by further scientific investigation, research and study to determine if the restricted species either extend beyond the Impact Area of the proposal, or a compelling case is made that their habitat is continuous and extensive well beyond the Impact Area.
It is the EPA's opinion that should the Minister determine that the proposal may be implemented, such investigations and research would be of value in understanding, and potentially mitigating further impacts on, these species. …
The EPA considers that an industry-funded research program with the long-term aim of reducing uncertainty surrounding the conservation of subterranean fauna species in the presence of mining may assist with improving the currently limited scientific understanding of subterranean fauna across the State and inefficient sampling methods. A commitment by the proponent to support such a program could potentially, and indirectly, offset the local impacts it might have on subterranean fauna at Yeelirrie to the broader benefit of subterranean fauna conservation state wide.
[11] EPA report, pages 77 - 78, GAB 565 - 566. See also EPA report, pages 4 - 5, GAB 492 - 493.
[12] EPA report, pages 77 - 78, GAB 565 - 566.
The EPA report listed 10 decision‑making authorities in relation to the proposal, including the Minister for State Development, Minister for Mines and Petroleum, Minister for Water, Minister for Environment and Minister for Aboriginal Affairs.[13]
Appeals against the EPA report
[13] EPA report, appendix 5, GAB 648 - 649.
Twenty appeals against the EPA report were received by the Appeals Convenor during the appeal period following publication of the EPA report.[14] Because of the manner in which the Minister expressed his decision on appeal, by reference to the Appeals Convenor's report, it is appropriate to give detailed attention to the Appeals Convenor's report.
Appeals Convenor's report
[14] Primary reasons [49]; Sutton affidavit [13].
The Appeals Convenor's report began with a brief summary. The summary outlined the process which had been followed, and the issues which had been raised by the appeals received. The summary then stated:[15]
In relation to subterranean fauna the Appeals Convenor noted the proponent's appeal submission included information related to the potential for the extension of habitat and potential management measures to mitigate impacts to subterranean fauna. However, it is considered that it does not establish that the EPA's objectives for subterranean fauna can be met and on this basis the Appeals Convenor recommended that the proponent's appeals against this factor be dismissed.
In relation to the other grounds of appeal and for the reasons outlined in this report the Appeals Convenor considered that the EPA's assessment was justified, however should it be determined that the proposal may be implemented it is recommended that conditions be amended in relation to Atriplex yeelirrie and the public availability of management plans. (emphasis added)
[15] Appeals Convenor's report, page (i), GAB 668.
The summary then set out the following recommendations:[16]
[16] Appeals Convenor's report, page (i), GAB 668.
For the reasons set out in this report, it is recommended appeals in relation to subterranean fauna be dismissed.
Should it be determined that the proposal may be implemented it is recommended that the appeals be allowed to the extent that the following conditions are amended:
•Condition 5 be amended to require that Management Plans [are] made publicly available;
•Condition 6-3 be amended to ensure that salinity is appropriately considered in the Atriplex yeelirrie Conservation Management Plan;
•Condition 14-2(5) be strengthened to include reference to investigating unintended impacts on the receiving environment from translocational activities;
•Condition 14 is amended to require review and update at regular intervals to ensure that Offset Plan remains contemporary
It is otherwise recommended that the appeals be dismissed. (emphasis added)
The report stated that two appellants submitted appeals contending that the impacts to subterranean fauna could be managed, and the proposal should be implemented. Eighteen appellants supported the EPA's recommendation that the proposal should not be implemented, but contended that other factors, considered acceptable by the EPA, provided additional reasons why the proposal should not be implemented.[17] The Appeals Convenor also noted that a third party appellant contended that the EPA's assessment underestimated the impact on subterranean fauna.[18]
[17] Appeals Convenor's report, pages 4, 21, GAB 673, 690.
[18] Appeals Convenor's report, page 21, GAB 690.
In her report, the Appeals Convenor summarised the issues raised by the various appeals as relating to 10 subject areas.[19] The Appeals Convenor added that appellants raised a number of other matters she considered to be beyond the scope of the appeal, although the appellants contended that those matters were relevant to the Minister's considerations.[20]
[19] Appeals Convenor's report, page 5, GAB 674.
[20] Appeals Convenor's report, page 5, GAB 674.
The Appeals Convenor began with the issue of subterranean fauna. She noted that the proponent (Cameco) had submitted that the EPA overestimated the proposal's impacts on subterranean fauna, and did not apply the right test to establishing the significance of the identified impacts.[21]
[21] Appeals Convenor's report, page 5, GAB 674.
The Appeals Convenor set out, in considerable detail, the proponent's submissions and the EPA's submissions in response.[22] The Appeals Convenor then gave detailed consideration to these matters.[23] The Appeals Convenor came to the following conclusion:[24]
[G]iven the uncertainties raised in the proposal around the potential threat of serious and irreversible harm, the EPA's conclusion that the proposal cannot be managed to meet its objective for subterranean fauna and therefore should not be implemented, is considered to be justifiable having regard to the object of the Act.
…
It is considered that the information provided by the proponent does not establish that the EPA's objectives for subterranean fauna can be met.
Taking into account all the information presented in relation to this ground of appeal, it is considered that the EPA's conclusions with respect to subterranean fauna were justified and appropriate. It is specifically considered that the EPA properly assessed the risks associated with the implementation of the proposal, and correctly considered the object of the Act, and the principles relevant to that object.
It is recommended therefore that appeals in relation to subterranean fauna be dismissed. (emphasis added)
[22] Appeals Convenor's report, pages 6 - 20, GAB 675 - 689.
[23] Appeals Convenor's report, pages 20 - 22, GAB 689 - 691.
[24] Appeals Convenor's report, pages 22 - 23, GAB 691 - 692.
The conclusion and recommendations in the report were expressed in the terms set out in [18] and [19] above. After setting out those recommendations, the Appeals Convenor stated:[25]
Following the determination of these appeals, the decision as to whether or not the proposal may be implemented, and the precise wording of the conditions which apply to any such implementation, is made under section 45 of the Act.
The Minister's appeal determination
[25] Appeals Convenor's report, page 50, GAB 719.
On 14 December 2016, the Minister published his appeal determination. The determination stated that the Minister's decision was to allow appeals in part with respect to flora and vegetation and public availability of plans, and to dismiss all other grounds of appeal.[26]
[26] Minister's appeal determination, page 1, GAB 725.
The Minister's reasons outlined that the appeals covered a wide range of matters including issues relating to subterranean fauna, ground and surface water, human health, Aboriginal heritage, flora and vegetation, terrestrial fauna, amenity and mine management and closure.[27]
[27] Minister's appeal determination, page 1, GAB 725.
The reasons stated that, in relation to subterranean fauna, the EPA report concluded that there remained too great a chance of a loss of 12 species that may be restricted to the impact area and therefore concluded that the proposal could not meet its objectives for this factor.[28]
[28] Minister's appeal determination, page 2, GAB 726.
After outlining the position of the proponent and the EPA, the Minister set out the following conclusion in relation to this issue:[29]
Based on the foregoing, the new and additional information provided by the proponent suggested the level of impact to some stygofauna species may be reduced or avoided from what was considered in the EPA's report, but is not considered sufficient to meet the EPA's objectives for subterranean fauna. As such, it appears the basis for the EPA's conclusions in respect to subterranean fauna remains valid. It follows that the Minister determined to dismiss the proponent's appeal in respect to subterranean fauna. (emphasis added)
[29] Minister's appeal determination, page 2, GAB 726.
The Minister then stated as follows:[30]
In relation to concerns raised by appellants on other aspects of the EPA's report, the Minister concurred with the recommendations of the Appeals Convenor in respect to strengthening some of the implementation conditions recommended by the EPA, should it be determined that the proposal may be implemented. (emphasis added)
[30] Minister's appeal determination, page 2, GAB 726.
The Minister's reasons refer to the specific conditions that had been identified in the report of the Appeals Convenor, in each case adopting the recommendations made by the Appeals Convenor as to amendment of those conditions.[31]
[31] Minister's appeal determination, page 2, GAB 726.
The Minister's reasons conclude as follows:[32]
The Minister otherwise determined the appeals in accordance with the Appeals Convenor's recommendations.
The decision as to whether or not the proposal may be implemented, and the conditions which apply to any such implementation, is made under section 45 of the Act following the determination of these appeals. The Minister noted in this regard that the final decision making process will have regard to the EPA's report and broader commercial and economic considerations relevant to the proposal. This process will be commenced as soon as possible following this appeal decision. (emphasis added)
Ministerial Statement that the proposal may be implemented
[32] Minister's appeal determination, pages 2 - 3, GAB 726 - 727.
On 16 January 2017, the Minister published a statement to the effect that the Yeelirrie Project may be implemented subject to stated conditions (the Ministerial Statement). The Ministerial Statement said that, pursuant to s 45 of the Act, it had been agreed that the proposal may be implemented subject to the conditions and procedures there set out.[33]
[33] Ministerial statement, page 1.
Legislative provisions
Because the proper construction of the Act is at the heart of this appeal, it is appropriate to provide a detailed outline of its structure and provisions.
The object of the Act
The object of the Act is to protect the environment of Western Australia, having regard to the five principles stated in s 4A. Three of those principles are relevant for present purposes, namely the precautionary principle, the principle of intergenerational equity and the principle of the conservation of biological diversity and ecological integrity.
Inconsistent law
Section 5 of the Act provides that where a provision of the Act or an approved policy is inconsistent with a provision contained in any other written law, the provision of the Act, or the approved policy, prevails.
The EPA
Part II of the Act continues the existence of the body known as the Environmental Protection Authority, which was established under earlier legislation.[34] Neither the EPA nor its Chair is subject to the direction of the Minister.[35] One of the functions of the EPA is to conduct environmental impact assessments.[36]
Environmental Impact Assessment - pt IV of the Act
[34] The Act, s 7(1).
[35] The Act, s 8.
[36] The Act, s 16(a).
Part IV of the Act is concerned with environmental impact assessment of proposals. In that Part, the term 'significant proposal' is defined to mean a proposal likely, if implemented, to have a significant effect on the environment. The term 'strategic proposal' is defined to mean: a future proposal that will be a significant proposal; or future proposals likely, if implemented in combination with each other, to have a significant effect on the environment.[37]
[37] The Act, s 37B.
Section 38 of the Act sets out various ways in which significant proposals, and other proposals, including strategic proposals, may be referred to the EPA. Included in those provisions is the imposition of an obligation upon any decision‑making authority to refer to the EPA any proposal that appears to it to be a significant proposal.[38] The expression 'decision-making authority' is defined in s 3 of the Act to mean a public authority empowered to make a decision in respect of any proposal, and includes ministers other than the Minister for Environment.
[38] The Act, s 38(5).
When a proposal has been referred to the EPA, the EPA must decide whether or not to assess the proposal.[39] Notice of the EPA's decision as to whether or not to assess the proposal must be given within 28 days of referral of the proposal to the EPA.[40] Section 100(1) confers a right of appeal to the Minister relating to a decision of the EPA that a proposal is not to be assessed.
[39] The Act, s 39A(1).
[40] The Act, s 39A(3).
By s 41, a decision‑making authority is prevented from making any decision that could have the effect of allowing a proposal referred to the EPA to be implemented until: (1) it has been definitively determined that the proposal will not be environmentally assessed, or (2) the assessment process has been completed and the Minister has given notice under s 45(7), enabling a decision to be made that could have the effect of allowing the proposal to be implemented. Section 41A provides that, where a proposal is to be assessed, a person is prohibited from doing anything to implement the proposal before the assessment process is complete.
Sections 44 and 45 are of critical significance to the issues in the appeal. Those sections provide, so far as material, as follows:
44. Report by Authority on assessment of proposal
(1)If the Authority [that is, the EPA] assesses a proposal, it is to prepare a report on the outcome of its assessment of the proposal and give that report (the assessment report) to the Minister.
(2)The assessment report must set out -
(a)what the Authority considers to be the key environmental factors identified in the course of the assessment; and
(b)the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.
(2a)The Authority may, if it thinks fit, include other information, advice and recommendations in the assessment report.
…
(3)The Minister shall, as soon as he is reasonably able to do so after receiving copies of the assessment report, simultaneously cause -
(a)that report to be published; and
(b)copies of that report to be given to -
(i)any other Minister appearing to him to be likely to be concerned in the outcome of the proposal to which that report relates; and
(ii)each decision‑making authority, if any, by which the proposal to which that report relates was referred to the Authority or which had been given notice under section 39A(3)(c) or (4) in relation to the proposal; and
(iii)if the proposal to which that report relates was referred to the Authority by the proponent or another person, to the proponent or the other person.
Division 2 — Implementation of proposals
45. Procedure for deciding if proposal may be implemented
(1)The Minister shall, after he has caused a report to be published under section 44(3) -
(a)if the decision‑making authority, or one or more of the decision‑making authorities, to which or whom a copy or copies of the report has or have been given under that section is or are another Minister or other Ministers, consult that Minister or those Ministers and, if possible, agree with him or them; or
(b)if neither the decision‑making authority, nor any of the decision‑making authorities, as the case requires, referred to in paragraph (a) is another Minister, consult that decision‑making authority or those decision‑making authorities and, if possible, agree with it or them,
on whether or not the proposal to which the report relates may be implemented and, if that proposal may be implemented, to what conditions and procedures, if any, that implementation should be subject.
(2)If the Minister and the other Minister or Ministers referred to in subsection (1)(a) cannot agree on any of the matters referred to in subsection (1), the Minister shall refer the matter or matters in dispute to the Governor for his decision, and the decision of the Governor on that matter or matters shall be final and without appeal.
(3)If the Minister and the decision‑making authority or decision‑making authorities referred to in subsection (1)(b) cannot agree on any of the matters referred to in subsection (1), the Minister shall appoint an appeals committee to consider and report to him on the matter or matters in dispute.
(4)Sections 106, 107, 108, 109 and 110 apply to and in relation to a matter in respect of which the Minister has appointed an appeals committee under subsection (3) as if that matter were the subject of an appeal from a decision of the Minister.
(5)If the implementation agreement or decision is that the proposal may be implemented, or may be implemented subject to implementation conditions, the Minister is to -
(a)cause copies of a statement setting out the implementation agreement or decision to be served on -
(i)the Authority; and
(ii)each decision‑making authority that was consulted under subsection (1); and
(iii)the proponent of the proposal; and
(iv)the person who referred the proposal (if it was not referred by a person referred to in subparagraph (ii) or (iii));
and
(b)cause the statement to be published as soon as is practicable after it is served under paragraph (a).
(6)Notwithstanding anything in this section, if an appeal is lodged under -
(a)section 100(1)(d) in respect of a report published under section 44(3), the proposal to which that report relates shall not be implemented and conditions and procedures shall not be agreed or decided under this section -
(i)while the appeal is pending; or
(ii)otherwise than in accordance with the decision made on the appeal;
or
(b)section 100(3) in respect of any conditions or procedures agreed or decided under this section, the proposal shall not be implemented -
(i)while the appeal is pending; or
(ii)subject to any conditions or procedures which are not in accordance with the decision made on the appeal.
(7)The Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under subsection (5)(b) should not be implemented, cause to be served on the decision‑making authority precluded by section 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made.
(8)If the implementation agreement or decision is that the proposal may not be implemented, the Minister shall forthwith notify the persons referred to in subsection (5)(a)(i), (ii), (iii) and (iv) in writing accordingly. (emphasis added)
Section 46 empowers the Minister to request the EPA to inquire into and report on possible changes to the implementation conditions relating to a proposal.
Section 47 imposes a number of duties upon proponents that arise upon service of a s 45 statement. Breach of each of these duties constitutes an offence. A proponent served with a statement that a proposal may be implemented who implements it other than in accordance with the implementation conditions commits an offence.[41] A proponent who refuses or fails to comply with a requirement by the chief executive officer (CEO) of the department of the Public Service through which the Act is administered to provide reports on the information concerning the implementation of the proposal or compliance with implementation conditions commits an offence.[42] A proponent served with a statement that the proposal may not be implemented who does anything to implement the proposal commits an offence.[43]
[41] The Act, s 47(1).
[42] The Act, s 47(3), read with s 47(2).
[43] The Act, s 47(4).
By s 48, the CEO may monitor, or cause to be monitored, the implementation of the proposal to determine whether the implementation conditions are being complied with.
Appeals - pt VII of the Act
Section 100 of the Act provides, relevantly, as follows:
100.Appeals against Authority's decisions etc. as to proposals and schemes
(1)Any decision‑making authority, responsible authority, proponent or other person that disagrees with -
(a)a recorded decision of the Authority that a proposal is not to be assessed, other than a decision that includes a recommendation that the proposal be dealt with under Part V Division 2; or
…
(d)the content of, or any recommendation in, the report prepared under section 44 in respect of a proposal; or
…
may lodge with the Minister an appeal in writing setting out the grounds of the appeal.
…
(3)Any proponent that disagrees with any conditions or procedures agreed under section 45(1) (or under section 45(1) as applied by section 46(8)) may lodge with the Minister an appeal in writing setting out the grounds of that appeal.
Section 101 provides for the Minister's powers on an appeal under s 100. It provides, so far as is relevant, as follows:
101. Minister's powers on appeals under s. 100
(1)When an appeal is lodged under section 100(1) or (4), the Minister may -
(a)in the case of any appeal so lodged but subject to section 109(3)(a), dismiss the appeal; or
…
(d)in the case of an appeal referred to in section 100(1)(d) -
(i)remit the proposal to the Authority for assessment, further assessment or reassessment, as the case requires, and for that purpose make a direction under section 43; or
(ii)vary the Authority’s recommendations by changing the implementation conditions;
…
(1a)When an appeal is lodged under section 100(3), sections 106, 109 and 110 apply to and in relation to the appeal as if the appeal were an appeal from a decision of the Minister.
…
(3)The lodging of an appeal
…
(b)referred to in section 100(1)(d) or (e) has the effect described in section 45(6) or 48F(3), as the case requires; or
(c)referred to in section 100(3) prevents the implementation, or continued implementation, of the proposal concerned; or
…
during the period commencing with that lodging and ending with the decision of the Minister under subsection (1) or (2d).
Where an appeal is lodged under s 100, the Appeals Convenor is to request the EPA to report to the Minister on the appeal and, if the decision appealed against is not a decision of the Minister, the Appeals Convenor is to consider and report to the Minister on the appeal.[44] On receiving such report from the Appeals Convenor, the Minister may allow or dismiss the appeal to which that report relates.[45]
[44] The Act, s 106(1).
[45] The Act, s 106(2).
By s 107B, the provisions of s 109 concerning the procedure of appeals committees apply to, and in relation to, the Appeals Convenor as if the Appeals Convenor were an appeals committee, and a report of the Appeals Convenor made under s 106 has effect as if it were a report of an appeals committee.
Section 109 provides as follows:
109. Procedure of appeals committees
(1)In considering an appeal, an appeals committee -
(a)shall consult -
(i)the CEO in the case of an appeal against a decision of the CEO; and
(ii)the Authority in the case of an appeal against a decision of the Minister or the Authority; and
(iii)the appellant;
and
(aa)may consult such other persons as it considers necessary; and
(b)shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, shall not be bound by any rules of evidence and may conduct its inquiries in whatever manner it considers appropriate.
…
(3)On completing its consideration of an appeal, an appeals committee shall, subject to subsection (4), report to the Minister on its findings and recommendations in respect of the appeal, and the Minister shall allow or dismiss the appeal -
(a)if the appeal is from a decision of the Minister, in accordance with; or
(b)if the appeal is from a decision other than a decision of the Minister, having regard to,
those recommendations and the decision of the Minister under this subsection shall be final and without appeal.
(4)An appeals committee shall not in reporting to the Minister under subsection (3) make any recommendation that conflicts with any approved policy or with any standard prescribed by or under this Act. (emphasis added)
Section 110 provides for the way in which the Minister's decision on appeal is published and given effect.
Primary proceedings
In the primary proceedings, the appellants challenged the validity of the Ministerial Statement that the Yeelirrie Project may be implemented subject to stated conditions. They sought a writ of certiorari, declarations and an injunction. They advanced two grounds, only the first of which need be outlined. Ground 1 contended, in substance, that the Ministerial Statement was issued in breach of s 45(6)(a)(ii) of the Act in that the Minister rejected an appeal against the EPA recommendation that the proposal should not be implemented, thereby, in effect, deciding that the proposal should not be implemented, and yet issued a statement that the proposal may be implemented.
The decision of the primary judge
The elements of ground 1
The primary judge considered there to be two essential elements underpinning ground 1 of the application, as follows:[46]
(1)The assertion that the Minister made a decision on the appeal, within the meaning of s 45(6)(a)(ii) of the Act, to the effect that the proposal should not be implemented. To his Honour, this involved questions of both fact and law. The question of fact was whether the Minister decided, by publication of what his Honour referred to as the Ministerial Statement, but evidently meant the Minister's appeal determination, that the Yeelirrie Project may not be implemented. The question of law was whether the Minister could lawfully make such a decision in the exercise of his power to determine appeals from the EPA report.
(2)If (1) were established, the assertion that a decision made by the Minister in determining the appeal against a report from the EPA to the Minister can, in effect, dictate the manner in which the Minister and other decision-making authorities can exercise the power to determine whether or not a proposal may be implemented and, if so, the conditions or procedures to which implementation should be subject.
[46] Primary reasons [69] - [70].
His Honour structured his reasons by reference to these two elements, and the two questions involved in the first element.
The question of fact - did the Minister decide on appeal that the proposal should not be implemented?
The primary judge concluded that there was no evidence in the Minister's appeal determination to the effect that the Minister made a decision that the Yeelirrie Project may not be implemented.[47] This was for the following reasons:
(1)The relevant documents, namely Cameco's referral, the EPA's Environmental Scoping Document, the PER prepared by Cameco, the EPA report, the Appeals Convenor's report and the Minister's appeal determination, only addressed environmental factors relevant to the Yeelirrie Project. By contrast, the Minister and other decision-making authorities can properly take into account broader economic, cultural, social and political considerations in deciding whether or not a proposal may be implemented.[48]
(2)The Appeals Convenor's report provided no advice or recommendation to the Minister on the question of whether or not the proposal should be implemented. On the contrary, the final paragraph of that report expressly stated that the decision on that question was to be made following the Minister's determination of the appeals.[49]
(3)None of the four components of the Minister's appeal determination could be construed as a decision on the part of the Minister as to whether or not the Yeelirrie Project may be implemented.[50] The first component was a decision 'to dismiss the proponent's appeal in respect to subterranean fauna'.[51] The second component was a decision to uphold the appeals relating to the strengthening of some of the implementation conditions in the event that it was determined the Yeelirrie Project may be implemented.[52] His Honour observed that such a decision would have been pointless if, and is inconsistent with a contention that, the Minister had decided that the proposal should not be implemented.[53] The third component was a decision to 'otherwise [determine] the appeals in accordance with the Appeals Convenor's report', which report made no recommendation as to whether or not the Yeelirrie Project should be implemented.[54] The fourth component was an express assertion that the decision as to whether or not the Yeelirrie Project may be implemented would be made following the Minister's appeal determination.[55]
[47] Primary reasons [82].
[48] Primary reasons [73] - [75].
[49] Primary reasons [76].
[50] Primary reasons [77].
[51] Primary reasons [77].
[52] Primary reasons [78].
[53] Primary reasons [79].
[54] Primary reasons [80].
[55] Primary reasons [81].
The primary judge then addressed the appellants' submissions in relation to ground 1 of the application. His Honour understood the appellants' argument to be as follows:[56]
[56] Primary reasons [83].
(a)in the [EPA report] the EPA concluded that the [Yeelirrie Project] could not be implemented consistently with its objectives with respect to the preservation of subterranean fauna;
(b)for that reason the EPA recommended to the Minister that the [Yeelirrie Project] should not be implemented;
(c) appeals were brought against the [EPA report];
(d) those appeals included a ground which challenged the EPA's conclusion that the [Yeelirrie Project] could not be implemented in conformity with its objectives with respect to the preservation of subterranean fauna;
(e) that ground of appeal was dismissed by the Minister;
(f) pursuant to s 109(3) of the Act the Minister must allow or dismiss an appeal;
(g) because the Minister dismissed Cameco's appeal against the [EPA report], and in particular Cameco's ground of appeal relating to the preservation of subterranean fauna, by the operation of the Act the decision took effect as a determination that the [Yeelirrie Project] should not be implemented; and
(h) the Act created this effect irrespective of the words used by the Minister, or the intention of the Minister to be derived from the words he used in determining the appeals.
His Honour held that this process of reasoning could not be accepted, for the following four reasons:
(1)The best evidence of the 'decision' which the Minister 'made on the appeal', using the terminology of s 45(6)(a)(ii) of the Act, was the [Minister's appeal determination],[57] which makes unequivocally clear, viewed in the context of all that preceded it, that the Minister was not deciding whether or not the Yeelirrie Project should be implemented.[58]
(2)The appellants' process of reasoning elides the distinction between the conclusion that the Yeelirrie Project could not be implemented in conformity with the EPA's objectives for the preservation of subterranean fauna and the broader question of whether, having regard to that conclusion, the Yeelirrie Project should be implemented.[59] The EPA's recommendation that the Yeelirrie Project should not be implemented flowed naturally from its conclusion that the proposal could not be implemented in conformity with its environmental objectives.[60]
(3)There is no provision in the Act which gives the Minister's decision made on the appeal the effect that the Yeelirrie Project should not be implemented.[61]
(4)The appellants' process of reasoning would subvert a number of important aspects of the scheme evident in the terms of the Act, having the following consequences:
(a)on any occasion upon which an appeal is brought from a report by the EPA to the Minister, the Minister would have to take into account all of the broader economic, cultural, social or political considerations which might be taken into account in the course of the decision-making process for which provision is made in s 45 of the Act, prior to his determination of the appeal, notwithstanding that the report from which the appeal is brought is limited to environmental factors;[62]
(b)the decision as to whether or not the proposal should be implemented would be made prior to the completion of the environmental assessment process and as a necessary element of any appeal forming part of that process;[63] and
(c)where an appeal is brought from a report by the EPA to the Minister, the decision as to whether or not the proposal should be implemented would be made exclusively by the Minister, with no place for consultation between the Minister and other decision-making authorities pursuant to the mechanisms specified in s 45 of the Act.[64]
The legal question - could the Minister decide that a proposal should not be implemented in deciding an appeal from an EPA report?
[57] In the primary reasons, the primary judge uses the term 'Ministerial Statement'. This is plainly a slip, as outlined in [75] below.
[58] Primary reasons [84].
[59] Primary reasons [85].
[60] Primary reasons [86].
[61] Primary reasons [88].
[62] Primary reasons [89].
[63] Primary reasons [90].
[64] Primary reasons [91].
The primary judge noted that s 101(1)(d) of the Act specifies the Minister's powers in the case of an appeal brought against an EPA report pursuant to s 100(1)(d) of the Act. Those powers are: (a) the power to remit the proposal to the EPA for assessment, further assessment or reassessment; and (b) the power to vary the EPA's recommendations by changing the implementation conditions.[65] These powers do not include a power for the Minister to vary the EPA's recommendation as to whether or not the proposal may be implemented,[66] which his Honour considered was consistent with the scheme of the Act for the following reasons:[67]
(1)a decision as to whether or not a proposal should be implemented is not made as part of the process of environmental assessment, but only after that process is complete;[68]
(2)that decision is not made by the Minister alone, but by the Minister in conjunction with other decision-making authorities in a decision-making process separate and discrete to the environmental assessment process;[69] and
(3)that decision is made by reference to broader considerations of a kind not properly included within the EPA report or within any process of appeal from that report, which incorporate only environmental considerations.[70]
[65] Primary reasons [98].
[66] Primary reasons [100].
[67] Primary reasons [101] - [102].
[68] Primary reasons [101].
[69] Primary reasons [101].
[70] Primary reasons [101].
For these reasons, his Honour considered that any decision of the Minister purporting to vary the EPA's recommendation as to whether or not the proposal may be implemented would exceed the jurisdiction conferred upon the Minister and, for that reason, be of no legal effect.[71]
[71] Primary reasons [103].
The primary judge considered that each of his conclusions on the questions of fact and law was sufficient to result in the dismissal of ground 1 of the application.[72] Nevertheless, his Honour proceeded to address what was, in his view, the second essential element underpinning the ground.[73]
Could s 45(6)(a)(ii) of the Act in effect determine the decision to be made pursuant to s 45 with respect to whether a proposal should be implemented?
[72] Primary reasons [92], [104].
[73] Primary reasons [104].
The primary judge considered the thrust of the appellants' contention in relation to this element to be as follows. Since s 45(6) of the Act qualifies everything else in that section - by the opening words 'notwithstanding anything in this section' - if a decision is made on an appeal from an EPA report to the Minister to the effect that the proposal should not be implemented, it is not lawfully possible for any agreement to be made pursuant to s 45 to the effect that the proposal may be implemented, because such an agreement would be 'otherwise than in accordance with the decision made on the appeal'.[74] The appellants' submissions on this proposition relied heavily on the decision in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc[75].[76]
[74] Primary reasons [105].
[75] Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136.
[76] Primary reasons [106].
His Honour gave detailed consideration to this decision. His Honour concluded, in summary, that the issue under consideration in the present case was not argued or squarely addressed in Coastal Waters Alliance. Malcolm CJ and Franklyn J expressed no view on the issue, and to the extent that Rowland J expressed a view, it was obiter and the meaning of his Honour's words depended significantly upon the terms of the Minister's appeal determination, the part played by the EPA report, and appeals from that report, in the overall scheme of the Act.[77]
[77] Primary reasons [115].
The primary judge held that this aspect of ground 1 of the application turned critically upon the proper construction of s 45(6)(a) of the Act and, in particular, the meaning properly given to the words 'otherwise than in accordance with the decision made on the appeal'.[78] His Honour emphasised that the process starts with the ascertainment of the natural and ordinary meaning of those words in their context.[79]
[78] Primary reasons [116].
[79] Primary reasons [119].
His Honour considered that the following matters comprised the most significant components of the context in which the words in s 45(6)(a) of the Act were to be construed:
(1)the scope of the Minister's powers in relation to appeals from an EPA report to the Minister, which powers are specified in s 101(1) of the Act to be: remission of the proposal to the EPA for assessment, further assessment or reassessment, variation of the EPA's recommendations by changing the implementation conditions, and dismissal of an appeal;[80]
(2)the scope of an EPA report to the Minister, which is confined to environmental factors relevant to the proposal, and the role of an EPA report to the Minister, which is to provide advice to the Minister and other decision-making authorities for their consideration when a decision is made as to whether the proposal should be implemented;[81]
(3)the decision as to whether a proposal should be implemented is to be made subsequent to the completion of the environmental assessment process, including the completion of any appeals forming part of that process;[82]
(4)the Minister and other decision-making authorities can take into account a broader range of considerations than those properly addressed by the EPA in its report in deciding whether or not a proposal should be implemented;[83] and
(5)the decision as to whether a proposal should be implemented is not made by the Minister alone, but by agreement between the Minister and other decision-making authorities.[84]
[80] Primary reasons [120].
[81] Primary reasons [121].
[82] Primary reasons [122](a).
[83] Primary reasons [122](b).
[84] Primary reasons [122](c).
With those components of context in mind, the primary judge proceeded to consider the meaning of the words 'otherwise than in accordance with the decision made on the appeal' in s 45(6)(a)(ii) of the Act in relation to the three possible outcomes of an appeal, being: (1) remission of the proposal to the EPA for further assessment, (2) variation of the EPA's recommendations by changing the implementation conditions, and (3) dismissal of the appeal.[85]
[85] Primary reasons [123].
His Honour considered that, in relation to outcome (1), 'in accordance with' means no decision with respect to implementation of the proposal can be made until the further assessment is complete, a revised report is provided to the Minister, and any appeals from that revised report are determined.[86] In relation to outcome (2), 'in accordance with' requires the Minister and other decision-making authorities to take into account the implementation conditions in the EPA's report as amended by the Minister when considering whether or not the proposal should be implemented.[87] In relation to outcome (3), 'in accordance with' requires the Minister and other decision-making authorities to take into account the EPA's report as it stands - that is, 'in accordance with' the Minister's decision dismissing the appeal.[88]
[86] Primary reasons [124].
[87] Primary reasons [125].
[88] Primary reasons [127].
The primary judge concluded that it would be entirely inconsistent with, and subversive of, the scheme evident in the Act to construe 'in accordance with' as requiring the Minister and other decision-making authorities to make a decision strictly in accordance with what the Minister determined on the appeal.[89] Indeed, such a construction would: convert the EPA's report from a matter which must be taken into account into a matter which would dictate the outcome of the decision about whether or not the proposal should be implemented and, if so, on what conditions; would do so at a time prior to that decision being made; by a person who is not the only decision-maker; in the course of an appellate process which is concerned with a significantly narrower range of considerations than the range of considerations properly taken into account by the Minister and other decision-making authorities when deciding whether or not the proposal should be implemented and, if so, on what conditions.[90]
[89] Primary reasons [125], [127].
[90] Primary reasons [125], [127].
The primary judge then proceeded to address what he perceived to be the strongest argument in support of this aspect of the appellants' case. That was the argument that use of the term 'in accordance with' in s 45(6)(a)(ii) of the Act should be given the same meaning as the term has in s 109(3) of the Act. In s 109(3), 'in accordance with' is used in contrast to 'having regard to'. In that context his Honour viewed 'in accordance with' as clearly requiring the Minister to allow or dismiss the appeal in the same terms as the recommendations made to him.[91] However, his Honour gave two reasons why this argument was not persuasive. First, the term 'in accordance with' appears in a very different context in s 109 from its context in s 45(6).[92] Secondly, for the legislature, the term 'in accordance with' was preferable to 'having regard to' in the context of s 45(6)(a) because only the first would make clear that, where there is a decision remitting the proposal to the EPA for further assessment, neither the Minister nor other decision-making authorities are to proceed until the processes arising from that reassessment are complete.[93]
[91] Primary reasons [128].
[92] Primary reasons [129].
[93] Primary reasons [130].
His Honour summarised his reasons for dismissing ground 1 of the application:[94]
(a)the Minister did not in fact decide on appeal that the proposal should not be implemented;
(b)the Minister had no power to decide on appeal that the proposal should not be implemented; and
(c)even if the Minister had lawfully decided on appeal that the proposal should not be implemented, that decision would not prevent the Minister and/or other decision‑makers from deciding that the proposal should be implemented having regard to the broader considerations properly taken into account pursuant to s 45 of the Act.
[94] Primary reasons [132].
It is not necessary to outline the primary judge's reasons for dismissing ground 2 of the application as there is no challenge to that aspect of his Honour's decision.
Grounds of appeal
The appellants advance seven grounds of appeal. The grounds are lengthy and repetitive. It is not necessary to set out the grounds, which may be summarised as follows.
Grounds 1, 6 and 7 challenge the primary judge's construction of the relevant provisions of the Act. Ground 1 contends that, on a proper construction of s 45(6)(a)(ii), the effect of the Minister's dismissal of an appeal against a recommendation by the EPA that the proposal not be implemented was that the Minister decided, in accordance with the EPA's recommendation, that the proposal should not be implemented. Consequently, the Minister and other decision‑makers under s 45(1) ‑ (4) were bound by that decision and could not lawfully decide or agree that the proposal may be implemented.
Ground 6 contends that the primary judge erred in law in finding that the Minister had no power to decide on appeal that the proposal should not be implemented.
Ground 7 contends that the primary judge erred in finding that the Minister had no power to vary a recommendation of the EPA as to whether or not a proposal may be implemented, in that such a power is encompassed by the Minister's power, under s 109(3), to 'allow' an appeal.
Grounds 3, 4 and 5 challenge the primary judge's conclusion of fact that, on appeal, the Minister did not decide that the proposal should not be implemented.
Ground 2 alleges that the primary judge failed to provide intelligible reasons by confusing the Ministerial Statement with the Minister's decision on the appeal. This ground may be disposed of immediately. The primary judge's references to the Ministerial Statement in [69], [80], [81] and [83] of the reasons are plainly nothing more than a slip. The context makes entirely clear that the primary judge was referring to the Minister's decision on the appeal, not to the Ministerial Statement. It is not, and could not be, suggested that this slip indicates that the primary judge in fact misunderstood the difference between the Ministerial Statement and the decision on the appeal. The contention that this evident slip renders the judge's reasons not 'intelligible' is entirely without merit.
It is convenient to begin, as the appellants' submissions suggest,[95] with the issue of the proper construction of the relevant provisions of the Act. As will be seen, in substance, the issues of construction are decisive of the appeal.
[95] Appellants' submissions [42].
Grounds 1, 6 and 7: the proper construction of the Act; the appellants' submissions
The nub of the appellants' argument on ground 1 is expressed as follows:[96]
It is submitted that by its plain and natural meaning, s 45(6)(a)(ii) (when read with s 109(3)(b)), has the following elements:
12.1The appeal process results in a distinct Ministerial decision which goes beyond simply leaving the recommendations in the [EPA report] in either the same or an altered state.
12.2The Minister's decision 'on the appeal' must be capable of positing a yardstick against which the limitation that the proposal shall not be implemented 'otherwise than in accordance with the decision made on the appeal' can be applied.
12.3While the legal effect of [dismissing] an appeal against a recommendation of the EPA that a proposal should not be implemented is not explicated in the EP Act, in the context of ss 45(6) and 109(3)(b) such dismissal results in law in an affirmation by the Minister, in his own decision, that the proposal should not be implemented.
12.4The prohibitory words 'otherwise than in accordance with' the decision made on the appeal mean that a positive implementation decision cannot be taken where the decision on the appeal has been that the proposal should not be implemented.
12.5The prohibition just mentioned has overriding effect [because] s 45(6) applies '[n]otwithstanding anything in this section'.
[96] Appellants' submissions [12].
Thus, the thrust of their argument is that the decision of the Minister on an appeal as to the EPA's implementation recommendation binds the ultimate decision as to whether the proposal may be implemented. The ultimate decision cannot allow implementation where the Minister has dismissed an appeal against a recommendation not to implement because that would not be 'in accordance with' the decision on appeal. As the appellants said in oral submissions, 'it is "otherwise than in accordance with the decision made on the appeal" to act oppositely from the recommendation that survived the appeal'.[97] As the appellants put it in written submissions, 'a "no" decision on the appeal cannot become a "yes" implementation decision'.[98]
[97] Appeal ts 45 - 46.
[98] Appellants' submissions [17]
The appellants emphasise the importance of text in the task of statutory construction.[99] They submit that the primary judge started with what he termed the 'context' and then attributed meanings to various sections in the Act with reference to this 'context', which is not in accordance with established principles.[100] By reference to the ordinary meaning of,[101] and meaning attributed to, in various statutory contexts,[102] the term 'in accordance with', the appellants submit that the phrase 'otherwise than in accordance with' cannot reasonably bear the meaning attributed to it by the primary judge, namely 'otherwise than by taking into account' the decision made on the appeal.[103] Such a meaning strays beyond the permissible scope of the meaning of the phrase and leaves no work to be done by the opening part of s 45(6): 'Notwithstanding anything in this section'.[104]
[99] Appellants' submissions [13].
[100] Appellants' submissions [16].
[101] Appellants' submissions [18] - [19].
[102] Appellants' submissions [20].
[103] Appellants' submissions [21].
[104] Appellants' submissions [21].
The appellants submit that a proper consideration of context supports their textual interpretation of 'in accordance with'.[105] They point to the following contextual factors:
(1)Even though the environmental impact assessment is grafted upon a primary process (eg an application under the Mining Act 1978 (WA) for a mining lease), if the assessment process under the Act results in a decision that the proposal may not be implemented, the proposal cannot be implemented otherwise. This gives effect to the scheme of the Act and its place in prevailing over inconsistent laws, and demonstrates that decisions made under the Act bind other decision-makers.[106]
(2)In other provisions of the Act, namely ss 109(3), 45(6)(b) and 48F(3)(b), the term 'in accordance with' is interpreted to mean, or should be interpreted to mean, in effect, 'bound by' rather than 'taking into account'.[107] In s 109(3), the terms 'in accordance with' and 'having regard to' are used in contradistinction in, respectively, paragraphs (a) and (b).[108]
(3)In s 45(6)(b), dealing with appeals under s 100(3) concerning conditions that were agreed by the Minister under s 45(1), the words 'in accordance with' must bear their ordinary meaning, so as to bind the Minister. It would be absurd if, at this last stage of the process, the Minister could depart from the result on appeal in deciding what conditions to publish. There is no basis for construing the same phrase in two paragraphs of the same subsection as having a different meaning.[109]
(4)Under s 101(1)(d), one type of 'decision made on the appeal' is a decision that the Minister may 'vary the [EPA's] recommendations by changing the implementation conditions'. It would be an absurd result if an application of the primary judge's construction of s 45(6)(a) would mean the Minister was only required to 'take into account' those conditions in deciding on the conditions to be set in the implementation decision.[110]
[105] Appellants' submissions [22].
[106] Appellants' submissions [24] - [25].
[107] Appellants' submissions [27], [31] - [34].
[108] Appellants' submissions [31].
[109] Appellants' submissions [32].
[110] Appellants' submissions [35].
In their written submissions, the appellants submit that the decision of this court's predecessor in Coastal Waters Alliance supports their construction.[111] They point to the passages in the judgment of both Rowland J[112] and Franklyn J.[113] To the extent that these passages are dicta, the appellants submit that they are carefully considered dicta and that the primary judge should not have departed from their Honours' reasoning.[114]
[111] Appellants' submissions [36] - [37].
[112] Coastal Waters Alliance (146).
[113] Coastal Waters Alliance (154).
[114] Appellants' submissions [39] - [40].
In oral submissions, the appellants accepted that Coastal Waters Alliance was not determinative, and that what was there said was not much more than a paraphrase of the statutory provisions in circumstances where the question in this appeal had not been raised before the Full Court.[115]
[115] Appeal ts 46.
Statutory construction: general principles; was the primary judge's approach erroneous?
The appellants submit that, by starting with context, and attributing meanings to various sections in the Act, the primary judge failed to act in accordance with established principles requiring the task of statutory construction to begin and end with the statutory text.[116] For the reasons below, we do not accept that the primary judge erred in this manner.
[116] Appellants' submissions [13], [16].
The context to which the primary judge gave weight was the scheme of the Act, revealed by consideration of all of its relevant provisions. There is no error in approaching the task of statutory construction in that manner. To the contrary, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.[117]
[117] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 [31].
The material provisions of the Act must be understood, if possible, as parts of a coherent whole.[118] Where the text, read in context, permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each meaning with the scheme of the statute and its identified objects or policies.[119]
[118] Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16].
[119] Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [66]; SZTAL v Ministerfor Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [38]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064 [20]; Mohammadi v Bethune [2018] WASCA 98 [34].
Further, while the task of statutory construction begins and ends with the statutory text, throughout the process, the text is construed in its context.[120] Kiefel CJ, Nettle and Gordon JJ recently explained the position in SZTAL:[121]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)
[120] Project Blue Sky [69]; SZTAL [14], [37]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 [34]; SAS Trustee [20], [41], [64].
[121] SZTAL [14].
The objective discernment of the statutory purpose is integral to contextual construction.[122] The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.[123] The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.[124]
[122] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [23]; SZTAL [38] ‑ [39].
[123] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [25].
[124] Certain Lloyd's Underwriters [26].
Grounds 1, 6 and 7: the proper construction of s 45(6)(a)(ii); disposition
The critical issue is the proper construction of s 45(6)(a)(ii) of the Act. The central questions of construction concern the phrase 'the proposal … shall not be implemented … otherwise than in accordance with the decision made on the appeal'. 'The decision made on the appeal' is the criterion or thing with which implementation of the proposal must accord. Thus, attention must be directed to what, as a matter of construction, is meant by 'the decision made on the appeal'.
The 'appeal' referred to in s 45(6)(a) is an appeal under s 100(1)(d) with respect to the content of, or any recommendation in, an EPA report prepared under s 44. Thus, the subject matter of the appeal is an EPA report. In attributing meaning to the statutory phrase 'the decision made on the appeal', regard must be had to what the Act says as to the scope and content of an EPA report, the place of an EPA report in the legislative scheme, the nature of an appeal and the range of decisions open to be made by the Minister on an appeal of this kind.
Overview of the legislative scheme for proposals
The legislative scheme for proposals likely to have a significant effect on the environment involves a series of stages in the assessment and decision‑making process. Putting aside appeals for the moment, there are three such stages.
The first stage is referral to the EPA. When a proposal has been referred to the EPA to decide whether to undertake an environmental impact assessment, the proposal is, in effect, put on hold. Decision‑makers cannot decide to permit implementation of the proposal, and persons are prohibited from taking action which would have the effect of implementing the proposal, until it has been determined that the proposal will not be assessed, or the assessment process has been completed.[125]
[125] The Act, s 41, s 41A.
The second stage involves assessment and report by the EPA. Once it has been determined that a proposal is to be assessed by the EPA, the EPA must prepare a report. That report must set out:
(1)what the EPA considers to be the key environmental factors identified in the course of the assessment; and
(2)the EPA's recommendations as to whether or not the proposal may be implemented and, if so, as to the conditions and procedures to which the implementation should be subject.[126]
In substance, the task for the EPA is to assess, in the framework of the principles of s 4A of the Act, the impact of the proposal on the environment and, in light of that assessment, to make a recommendation as to whether or not the proposal should be implemented and, if so, on what conditions and procedures. The EPA report and recommendations must relate only to environmental factors; they cannot extend to other factors such as economic or commercial ones.[127]
[126] The Act, s 44(2).
[127] Coastal Waters Alliance (140 - 141, 147 - 148, 150, 151, 157 - 158).
The EPA then provides its report to the Minister. When the Minister receives the report, the Minister must cause it to be published and cause copies to be given to any other relevant minister and any other relevant decision‑making authority.[128]
[128] The Act, s 44(3).
The third stage is the consideration and determination of whether the proposal may be implemented and, if so, to what conditions and procedures that implementation should be subject. There are two matters that must be decided at this stage: (1) whether the proposal may be implemented; and (2), if the proposal may be implemented, to what conditions and procedures that implementation should be subject.[129] (We will refer to these two matters as the s 45(1) matters.) By the express provisions of s 45(1), the s 45(1) matters must be determined in one of two ways:
(1)If at least one of the decision-making authorities relevant to the proposal is a minister, the Minister (for Environment) must consult the other minister(s) and attempt to agree on the s 45(1) matters. Failing agreement on either (or both) of those matters, such matter(s) is referred to the Governor for final decision.[130]
(2)If none of the decision-making authorities relevant to the proposal is a minister, the Minister must consult the relevant decision-making authorities to attempt to agree the s 45(1) matters. If no agreement is reached, the Minister appoints an appeals committee to consider and report to him or her on the matter(s) in dispute.[131] The appeals committee report must set out its findings and recommendations in respect of the matter(s), which matter(s) is to be treated as if it were the subject of an appeal from a decision of the Minister.[132] Upon receipt of the appeals committee report, the Minister must allow or dismiss the (notional) appeal in accordance with the appeals committee's recommendations.[133]
[129] The Act, s 45(1).
[130] The Act, s 45(1)(a), s 45(2).
[131] The Act, s 45(1)(b), s 45(3).
[132] The Act, s 45(3), s 45(4), s 109(3).
[133] The Act, s 45(4), s 109(3)(a).
Some features of the legislative scheme in s 44 and s 45 should be noticed.
First, the role of the EPA, in preparing its report, does not involve making, or purporting to make, a decision on whether the proposal may be implemented. The EPA report identifies key environmental factors and makes a recommendation as to whether or not the proposal may be implemented.
Secondly, in making its recommendation, the EPA is confined to a consideration of environmental factors and to the impact of the proposal on the environment.
Thirdly, the Minister does not have the ultimate say in whether a proposal may be implemented. Rather, where at least one of the decision-making authorities relevant to the proposal is a minister, absent agreement, the matter is referred to the Governor.[134] Where none of the decision-making authorities relevant to the proposal is a minister, absent agreement, the ultimate decision is, in a practical sense, made by the appeals committee, whose recommendations the Minister must follow.
[134] Whose decision would be made following the advice of Cabinet.
Fourthly, by contrast to the EPA in preparing its report, in determining whether the proposal may be implemented, decision‑makers are not restricted to environmental factors. Under the Act, it is for the decision‑makers, or those deciding in the absence of agreement of decision‑makers, to determine the weight to be given to environmental factors. If they so decide, the Act permits decision‑makers to reach a view that a proposal may be implemented notwithstanding harmful effects upon the environment, such as its likely impact on an endangered species. Such a decision might be reached, for example, because of economic or other social benefits. Under the Act, decision‑makers are charged with making the decision involved in balancing environmental factors with economic, social, cultural and other considerations.
Fifthly, s 45 provides for the publication and taking effect of what is referred to as 'the implementation agreement or decision'.[135]
[135] The Act, s 45(5), s 45(8).
Sixthly, at the third stage, there is no right to appeal the ultimate decision as to whether the proposal may be implemented. This will be so regardless of whether:
(1)the ultimate decision has been made by decision-makers who have agreed under s 45(1) that a proposal may be implemented, or may not be implemented;
(2)the ultimate decision has been made by the Governor under s 45(2) after decision-makers, including at least one minister in addition to the Minister (for Environment), have failed to agree under s 45(1) on whether a proposal may be implemented; or
(3)the ultimate decision has been made, in effect, by an appeals committee under s 45(3) - (4) and s 109(3) after the Minister and any other decision-makers, none of whom is a minister, have failed to agree under s 45(1) on whether a proposal may be implemented.
There is only one, narrowly confined, right of appeal at the third stage, and that is the proponent's right to appeal any conditions or procedures agreed under s 45(1).[136]
[136] The Act, s 100(3).
We note, for completeness, that s 45 does not expressly deal with the situation where there is no minister or other decision-making authority. In that situation, s 45 does not expressly authorise the Minister under the Act to issue the statement referred to in s 45(5).
As Franklyn J observed in Coastal Waters Alliance, in the context of there being no minister who is a relevant decision-making authority:[137]
The only decision provided for by the section is that of the Governor under subs (2) in respect of a lack of agreement between the relevant Ministers. If there is no Minister who is a relevant decision-making authority, there can be no agreement and no decision by the Governor in respect of lack of agreement, and consequently no fulfilment of the pre-condition for the issue and publication of the statement provided for by subs (5). Unless there is power in the Minister, in those circumstances, to himself make or refuse to make the decision that the proposal may be implemented, there is no power to make and publish the statement and no avenue to give effect to the provisions of subs (7) and subs (8).
[137] Coastal Waters Alliance (155).
Franklyn J suggested, in the context he was considering, that, to give full effect to s 45, it is necessary to imply from the wording of s 45(5), s 45(6), s 45(7) and s 45(8) a power in the Minister under the Act to make the necessary decision in the absence of a need to consult and agree with a minister who is a relevant decision-making authority, and that s 45(5) should be construed accordingly.[138]
[138] Coastal Waters Alliance (155).
It is unnecessary, in the present case, to express a view on the correctness of Franklyn J's observations.
The effect of the appellants' construction on the scheme of the Act
To recap, the relevant 'appeal' for the purposes of s 45(6)(a) is an appeal from the EPA report, which report merely contains recommendations. As described at [92] above, the EPA report is prepared in the course of the second stage of the assessment and decision-making process for proposals. The appellants submit that, in dismissing an appeal against a recommendation by the EPA that the proposal not be implemented, the Minister has power to decide, and is deciding, that the proposal may not be implemented. Put another way, the appellants submit that s 45(6)(a)(ii) operates to mean that the dismissal by the Minister of an appeal against any negative recommendation alters the non‑binding character of the recommendation so as to make it controlling.[139] The appellants submit that the Minister's dismissal of an appeal against a recommendation that the proposal not be implemented 'results in a distinct ministerial decision which goes beyond simply leaving the recommendations in the [EPA report] in the same … state'.[140]
[139] Appeal ts 45 - 47, 49.
[140] Appellants' submissions [12], [14]; see also appeal ts 39, 49.
As we will develop in more detail below, these submissions involve attributing to the Minister's decision, on an appeal from the EPA report, statutory significance and consequences fundamentally different from, and greater than, the statutory significance and consequences of the EPA report itself. In our opinion, for the reasons that follow, this critical element of the appellants' construction cannot be accepted.
In this manner, the Minister's decision on the appeal meets the criterion advanced by the appellants;[154] it posits a yardstick against which the limitation that the proposal not be implemented 'otherwise than in accordance with the decision made on the appeal', can be applied. Even if, when an appeal is dismissed, it is difficult to imagine a breach of the second prohibition, with its effect summarised in [134] above, it is sufficient that this limb of s 45(6)(a)(ii) has content and operation in one of the scenarios to which it is evidently intended to apply, namely when the Minister remits the matter to the EPA for further assessment or reassessment and report.
[154] See [115] above.
If the Minister's decision made on the appeal is to vary the EPA's recommendations by changing the implementation conditions, the fourth prohibition, being the second limb of s 45(6)(a)(ii), requires that the agreeing or deciding of conditions and procedures not be otherwise than in accordance with the decision made on the appeal. That requires those who are agreeing or deciding the s 45(1) matters to treat the implementation conditions as varied by the Minister's decision on the appeal as superseding, and thereby removing from further consideration, the implementation conditions set out in the EPA report, to the extent they were varied by the decision on the appeal. Those agreeing or determining the conditions and procedures are free to depart from the recommended conditions and procedures, as varied by the Minister on the appeal, just as, in the absence of an appeal, they are free to depart from the conditions and procedures recommended by the EPA. It is not necessary, for the purposes of this appeal, to decide whether any such departures must be concerned only with, or arise only from, non‑environmental factors.
Once the limited character and effect of the 'decision made on the appeal' is properly identified, the appellants' submissions concerning the phrase 'otherwise than in accordance with' do not assist them. The words 'in accordance with' in s 45(6)(a)(ii) are part of the composite phrase 'otherwise than in accordance with the decision made on the appeal' and must be construed accordingly. The meaning of the phrase 'in accordance with' depends upon the context including the apparent purpose or object of the provision in which the phrase appears. For the reasons and in the manner already explained, the construction set out in [131] - [137] gives full force and effect to the words 'otherwise than in accordance with' within the composite phrase in s 45(6)(a)(ii).
Moreover, the construction set out in [131] - [137] is harmonious with the proper construction and operation of the other paragraph of s 45(6), namely s 45(6)(b), which operates in the following manner. The subject matter of s 45(6)(b) is an appeal under s 100(3). Such an appeal is against conditions and procedures agreed by decision‑makers under s 45(1). The decision made on the appeal, in the case of an appeal under s 100(3), is, therefore, concerned with the final determination of the conditions and procedures agreed under s 45(1) to which implementation of the proposal is subject. In that context, s 45(6)(b)(ii) requires that the proposal not be implemented subject to any conditions and procedures which do not reflect the conditions and procedures determined on the appeal. Thus, the difference in operation of s 45(6)(a) and s 45(6)(b) reflects the different character of the relevant 'decision made on the appeal' in cases within each paragraph. It does not involve any different sense of the term 'in accordance with'.
For these reasons, grounds 1, 6 and 7 fail.
Grounds 3, 4 and 5: challenges to the finding of fact
The remaining grounds may be dealt with very briefly. The appellants' challenges to the primary judge's finding of fact - that the Minister did not decide on appeal that the proposal may not be implemented - are founded upon acceptance of the appellants' construction of the Act. The appellants did not advance any submission to the effect that, even if their construction of the Act were rejected, the judge's finding of fact should be overturned. Nor could any such submission be advanced. It is clear, from the terms of the Appeals Convenor's report, and from the terms of the Minister's decision itself, that neither the Appeals Convenor nor the Minister considered that the decision on appeal amounted to, or constituted, a decision as to whether the proposal may be implemented. The last paragraph of the Minister's decision on appeal makes clear, beyond any reasonable doubt, that the Minister considered that determination of the appeal was anterior to, and separate from, the process of decision‑making as to whether the proposal may be implemented.
The appellants' challenges to the primary judge's finding of fact in this respect rely entirely upon their construction of the Act. The appellants' construction having been rejected, the appellants' challenges to the finding of fact fail.
The primary judge's findings of fact were, with respect, correct, for the reasons he gave.
Conclusion
For these reasons, none of the grounds of appeal has been made out.
In broad summary, that is because we do not accept the appellants' central contention that the dismissal by the Minister of an appeal against a recommendation that a proposal not be implemented alters the non‑binding character of the EPA's recommendation.
The appeal must be dismissed. We would hear from the parties as to the question of costs.
PRITCHARD JA:
I have had the benefit of reading in draft the judgment of Buss P and Beech JA. I respectfully agree with their Honours' conclusion that grounds 2, 3, 4 and 5 of the appeal must be dismissed, for the reasons they give.
I also agree that grounds 1, 6 and 7 of the appeal must be dismissed. I agree with their Honours' conclusion that the appellants' construction of s 45(6)(a) must be rejected, and with their reasoning to that conclusion in [88] to [129].
I also agree with the conclusion reached by Buss P and Beech JA as to the proper construction of s 45(6)(a) of the Act. However, I wish to express my own reasons as to the proper construction of s 45(6)(a). In doing so, I have used the same abbreviations as are used in the judgment of the plurality.
As Buss P and Beech JA have explained, pt IV of the Act expressly creates a scheme of three stages, by which, on a proper construction:
(1)Proposals are referred to the EPA.
(2)An environmental impact assessment is made by the EPA, based solely on environmental factors, with recommendations as to whether the proposal may be implemented and, if so, subject to what conditions and procedures.
(3)Thereafter, the decision‑makers in relation to the proposal agree, or failing agreement, a decision is made, taking account of the environmental factors, as well as broader consideration including economic, commercial, cultural and social factors, as to whether the proposal may be implemented and, if so, subject to what conditions and procedures.
For convenience, I will refer to this third stage, which is set out in s 45 of the Act, as the 's 45 process'.
I agree with the view of the plurality that neither s 45(6)(a), nor any other provision of the Act, renders the Minister, in deciding an appeal against a recommendation in an EPA report, effectively the sole decision‑maker on the ultimate question of whether a proposal may be implemented. The Minister's 'decision made on the appeal' does not encompass a power to decide, and does not have the effect of determining, that the proposal may, or may not, be implemented.
As outlined by Buss P and Beech JA at [132], s 45(6)(a) contains four prohibitions. The first and third prohibitions apply pending determination of the appeal. This appeal raises for consideration the construction of s 45(6)(a)(ii), which concerns the second prohibition, namely that a proposal related to a report which is the subject of an appeal under s 100(1)(d), 'shall not be implemented … under this section [that is, under s 45] otherwise than in accordance with the decision made on the appeal'. The prohibition on the implementation of a proposal is thus circumscribed by two key phrases: 'otherwise than in accordance with' and 'the decision made on the appeal'.
The phrase 'in accordance with' has a range of meanings. The verb 'accord' means to be in harmony, or in correspondence, or to be consistent with another thing.[155] Consequently, the phrase 'in accordance with' can mean 'in agreement with', 'in harmony with', 'consistently with' or 'in conformity to'.[156] In this sense, use of the phrase 'in accordance with' will convey a requirement, to a greater or lesser extent, that one thing be consistent with, or compatible with, another thing. At one end of this spectrum of meaning, where the phrase 'in accordance with' means 'in harmony with,' or 'consistently with', use of the phrase may convey a requirement for broad compatibility. At the other end of this spectrum of meaning, use of the phrase may connote a requirement for complete identity between one thing and another. The phrase 'in accordance with', especially when used in legislative provisions concerned with the exercise of authority or power, may also be used synonymously with 'under', 'by', 'pursuant to' or 'by virtue of'.[157] Use in the latter sense not only identifies the source of the authority or power but necessarily imports a requirement that the power be exercised consistently or compatibly with any limits on the exercise of the power which may be contained in the grant of power itself.
[155] Oxford English Online Dictionary; Macquarie Online Dictionary. See the discussion of the meaning of this phrase in Mount Barker Property Investments Pty Ltd v District Council of Mount Barker and Minister for Transport [2001] SASC 249; (2001) 80 SASR 449 [24] (Debelle J); Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1 [202] – [203], [215] - [216]; Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195, 207- 208; Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 [251] – [253] (Stein JA); cf Re Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151, 158 (Gray J).
[156] Oxford English Online Dictionary.
[157] See, eg, the definition of 'under' in s 5 of the Interpretation Act 1984 (WA). See also, by way of example, the legislative provisions discussed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises) Case [2018] FCAFC 88; (2018) 262 FCR 473, and in Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315.
The meaning with which the Parliament used the phrase 'in accordance with' in s 45(6) must be ascertained having regard to the context in which that phrase is used. Four contextual considerations assist in discerning the meaning of the phrase 'in accordance with' in s 45(6)(a) of the Act.
First, the phrase 'in accordance with' is used on about 60 occasions in the Act, and in a variety of circumstances. While there is ordinarily a presumption that the same word will bear the same meaning wherever it appears throughout an Act, that presumption may be displaced by the context in which the word appears.[158] That presumption may be more easily displaced in so far as it applies to the use of a generic phrase such as 'in accordance with', which has a range of meanings.
[158] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618 (Mason J).
It is apparent that the phrase 'in accordance with' does not have the same meaning throughout the Act. Its meaning clearly depends on the particular context in which it appears. In some instances, the use of that phrase appears to equate to 'pursuant to', so as to identify a source of authority or power, within which the authority or power must be exercised.[159] In other instances in the Act, the phrase 'in accordance with' is used to connote a requirement that a power be exercised within the boundaries of the grant of that power, so that the meaning of the phrase equates to 'compatible with' or 'consistent with'.[160] In such instances, the phrase appears to require broad compatibility with requirements set out elsewhere in the Act. There are also a number of instances where the phrase 'in accordance with' is used to indicate that particular conduct must conform precisely to specifications set out elsewhere. For example, the phrase is used in this sense in a number of the offence provisions in the Act.[161]
[159] See, eg, s 7(4) of the Act - the Minister 'shall consider expressions of interest [in appointment of persons to the office of a member of the EPA] lodged in accordance with the notice'.
[160] See, eg, s 18(3) of the Act - 'a power or duty delegated by the Minister under this section shall, if exercised or performed by the delegate, be exercised or performed in accordance with the instrument of delegation'. Similarly, see, s 29(1) of the Act - after receiving a draft environmental protection policy, the Minister may appoint a committee of inquiry 'to hold a public inquiry into and report to the Minister on the draft policy in accordance with terms of reference determined by him'. See, eg, s 46(3) of the Act - the EPA is to 'carry out an inquiry in accordance with a request' made by the Minister.
[161] See, eg, s 47(1) of the Act - if a proponent 'does not ensure that any implementation of the proposal … is carried out in accordance with the implementation conditions, the proponent commits an offence'. See also s 51C of the Act ('a person who causes or allows clearing commits an offence unless the clearing – (a) is done in accordance with a clearing permit'). See also s 52 of the Act (an occupier who carries out certain work on a premises will commit an offence 'unless he does so in accordance with a works approval').
The surrounding context, including the nature of the subject to which the phrase 'in accordance with' applies, will assist to discern the extent to which 'in accordance with' requires broad compatibility or precise identity in outcome. For example, s 51I(2)(a) of the Act provides that the holder of a clearing permit can be required to do certain things under conditions attached to the clearing permit, including taking 'specified measures for the purpose of … controlling or abating environmental harm either generally or in accordance with specified criteria'. The fact that specified measures may be required for the purpose of controlling environmental harm 'in accordance with specified criteria' suggests that the phrase 'in accordance with' is there used to convey a requirement for precise conformity between the measures taken and the criteria specified in the clearing permit. That that is so is confirmed by the fact that, alternatively, specified measures may be required 'for the purpose of controlling or abating environmental harm generally'.
By way of further example, the specific context in which the phrase 'in accordance with' is used in s 109(3)(a) of the Act also connotes a requirement for precise conformity. That that is so is apparent from the contrasting requirement that the Minister must allow or dismiss an appeal 'in accordance with' the recommendations of an appeals committee when the appeal is from a decision of the Minister (s 109(3)(a)), whereas the Minister need only allow or dismiss the appeal 'having regard to' the recommendations of an appeals committee when the appeal is from a decision other than a decision of the Minister (s 109(3)(b)).
Consequently, it cannot be assumed that the phrase 'in accordance with' is used in s 45(6)(a) with the same meaning that it has in every other provision of the Act in which it appears. In particular, the meaning of the phrase 'in accordance with' in s 109(3) is not determinative of the meaning of that phrase in s 45(6)(a).
Secondly, and significantly, the phrase 'in accordance with' is used in the Act in a number of contexts very similar to the context in which it is used in s 45(6).[162]The common factor in each of these provisions is that the provision seeks to preclude or suspend continued conduct of some kind, while an appeal process is underway in relation to the underlying subject of, or basis for, that conduct. In each such case, the conduct is prohibited 'while the appeal is pending' and is also precluded 'otherwise than in accordance with the decision made on the appeal'. I will return to the precise meaning of the phrase 'in accordance with', as used in this context, later in these reasons. However, for present purposes, it suffices to say that in determining the meaning of the phrase 'otherwise than in accordance with the decision made on the appeal' in s 45(6)(a), it must be borne in mind that the use of that composite phrase is not confined to that section alone.
[162] See, eg, s 48F(3), s 51F(1), s 51M(8), s 54(4) of the Act.
Thirdly, s 45(6)(a) sets out certain consequences of the lodgement of an appeal under s 100(1)(d). Section 101(3)(b) of the Act imports a temporal limitation on those consequences, in that it relevantly provides that the lodging of such an appeal 'has the effect described in section 45(6) … during the period commencing with that lodging and ending with the decision of the Minister under [s 101(1) or s 101(2d)]'. One aspect of that temporal limitation reflects the terms of s 45(6), in relation to the first and third prohibitions on the implementation of a proposal, or the determination of the conditions and procedures for its implementation, while an appeal is pending. The first and third prohibitions in s 45(6), when read together with s 101(3), clearly operate as a statutory stay on the s 45 process for deciding if a proposal should be implemented, and if so, subject to what terms and conditions.
The temporal operation of s 101(3)(b) in relation to the second and fourth prohibitions in s 45(6)(a)(ii) is less obvious, given that s 45(6)(a) refers to the decision 'made on the appeal' itself. However, to my mind, the temporal limitation in s 101(3), in its application to s 45(6), tends to support the conclusion that s 45(6) is directed to, and focused on, the efficacy of the appeal process itself, culminating with the Minister's decision on the appeal. That is, the temporal limitation in s 101(3)(b), as applied to s 45(6)(a), suggests that s 45(6)(a) has a transitory effect on the s 45 process overall, rather than that s 45(6) is intended to entirely subvert that process by effecting a fundamental change in the process for deciding whether a proposal may be implemented, and if so, subject to what conditions or procedures.
That conclusion is entirely consistent with the terms of s 45(6)(a) itself. That provision prohibits a proposal from being 'implemented … under this section' otherwise than in accordance with the decision made on the appeal. In other words, s 45(6)(a) contemplates that the s 45 process will continue to apply, even after a decision is made on the appeal.
Fourthly, the phrase 'in accordance with' in s 45(6)(a) links the implementation of a proposal, or the agreement of conditions and procedures for its implementation, with 'the decision made on the appeal'. A range of decisions may be made on an appeal under s 100(1)(d). These are set out in s 101(1)(a) and (d): the Minister may dismiss the appeal; the Minister may remit the proposal to the EPA for assessment, further assessment or reassessment within a specified time; or the Minister may vary the EPA's recommendations by changing the implementation conditions. There is nothing in s 45(6)(a) to suggest that it is to operate only in respect of some of the decisions which may be made on an appeal. Consequently, whatever the meaning of the phrase 'in accordance with' in s 45(6)(a), the section must be capable of operating in relation to each of those decisions.
In my view, when these contextual considerations are taken into account, the phrase 'in accordance with' in s 45(6)(a)(ii) should be understood to mean that once the decision on an appeal has been made, the s 45 process - which leads to an agreement or decision as to the implementation of a proposal, and as to the conditions and procedures to which implementation should be made subject - should continue, but in a way which is consistent or compatible, in the broadest sense, with the decision made on the appeal. In other words, once the appeal is completed, the s 45 process cannot proceed in a way which is inconsistent, or incompatible, with the outcome of the appeal. The implications of that construction are as follows.
In the simplest case, if the decision made by the Minister on the appeal is to dismiss the appeal (under s 101(1)(a)), the EPA report, and the recommendations in it, will remain on foot, unaltered, following the appeal. The requirement in s 45(6)(a)(ii) that the proposal shall not be implemented, and conditions and procedures shall not be agreed or decided, under this section 'otherwise than in accordance with the decision made on the appeal' means that the s 45 process will resume, and the decision makers identified in s 45 must undertake the s 45 process by reference to the EPA Report, which was unaltered on the appeal. To do otherwise would be to act in a way which was not 'in accordance with' - that is, not consistent or compatible with - the decision made on the appeal.
If the decision made on the appeal is to remit the proposal to the EPA for assessment, or reassessment,[163] then it would be 'otherwise than in accordance with' - that is, not consistent or compatible with - that decision for the s 45 process to resume in relation to the EPA Report in its original form. Instead, the remittal of the proposal to the EPA for further assessment or reassessment would result in the production of a new report by the EPA, which would, in due course, be the subject of fresh consideration under s 45 of the Act.
[163] Section 101(d)(i) of the Act.
Finally, as in this case, if the decision made on the appeal is to vary the EPA's recommendations by changing the implementation conditions,[164] then it would be 'otherwise than in accordance with' - that is, not consistent or compatible with - that decision for the s 45 process to proceed on the basis of the EPA report in its original form. Instead, the decision makers identified in s 45 would be required to consider the EPA report, as varied by the Minister's variation of the EPA's recommendations concerning the conditions or procedures for implementation of the proposal.
[164] Section 101(d)(ii) of the Act.
If the phrase 'otherwise than in accordance with' is given this meaning, then it will be capable of applying equally to each of the decisions the Minister is able to make on an appeal under s 100(1)(a) and (d), in respect of a report which is the subject of consideration under s 45 of the Act.
This construction of the compound phrase 'in accordance with the decision made on the appeal' applies equally to s 45(6)(b)(ii) of the Act. If the s 45 process results in an agreement or decision that a proposal may be implemented, subject to specified conditions or procedures, the proponent is able to lodge an appeal against those conditions or procedures under s 100(3). In that event, s 106, s 109 and s 110 apply in relation to the appeal as if the appeal were an appeal from a decision of the Minister.[165]
[165] Section 101(1a) of the Act.
In an appeal against a decision of the Minister, the Minister is obliged to appoint an appeals committee to consider and report to the Minister on the appeal.[166] An appeals committee must report to the Minister on its findings and recommendations in respect of the appeal. Under s 109(3) of the Act, the Minister has only two options: to allow or dismiss the appeal. Section 109(3)(a) provides that if the appeal is from a decision of the Minister, then the Minister must allow or dismiss the appeal 'in accordance with [the] recommendations [of the appeals committee]'. In contrast, if the appeal is from a decision other than a decision of the Minister, s 109(3)(b) provides that the Minister must allow or dismiss the appeal 'having regard to [the] recommendations [of the appeals committee]'. As I have already explained (at [159] above) the context in which the phrase 'in accordance with' is used in s 109(3)(a), and particularly the contrast with the alternative requirement that the Minister merely 'have regard to' the recommendations of the appeals committee, indicates that a high degree of compatibility, amounting to a requirement that the Minister's decision correspond precisely, with the recommendations of the appeals committee, applies when the appeal is from a decision of the Minister.
[166] Section 106(2) of the Act.
In any event, under s 109(3) of the Act, an appeal against the conditions or procedures to which the implementation of a proposal is made subject will have one of two outcomes. Either the appeal will be dismissed, in which case the conditions or procedures for the implementation of the proposal will remain in place, or the appeal will be allowed. For the purposes of this appeal, it is not necessary to determine precisely what is encompassed by the power to allow the appeal. I will assume, for present purposes, that the appeals committee may recommend, and that the Minister will therefore decide, to allow the appeal and to set aside some or all of the conditions or procedures for the implementation of the proposal. There is no further appeal under the Act against that decision of the Minister.[167]
[167] Section 109(3) of the Act.
While the appeal under s 100(3) is pending, s 45(6)(b)(i) prohibits the implementation of the proposal. After the appeal has concluded, s 45(6)(b)(ii) provides that the proposal shall not be implemented subject to any conditions or procedures which are not 'in accordance with the decision made on the appeal'. As I have said, the same construction of that phrase as I preferred in relation to s 45(6)(a)(ii) applies to s 45(6)(b)(ii). If the Minister's decision made on the appeal under s 100(3) is to dismiss the appeal, then as I have explained, the conditions or procedures for the implementation of the proposal, which were agreed or decided under the s 45 process, will remain unchanged. In that case, the proposal could not be implemented subject to any conditions or procedures which are not in accordance with – that is, not consistent or compatible with - the Minister's decision. The result is that the proposal must be implemented subject to the conditions or procedures originally agreed or decided in the s 45 process and which were not disturbed on the appeal.
If the Minister's decision made on the appeal under s 100(3) is to allow the appeal, and to set aside some or all of the conditions or procedures to which implementation of the proposal was originally made subject, then s 45(6)(b)(ii) would require that the proposal not be implemented subject to any conditions or procedures not 'in accordance with' - that is, consistent or compatible with - the decision on the appeal. In a case of that kind, the proposal must be implemented subject to those conditions or procedures (if any) which continue to apply in view of the Minister's decision to allow the appeal.
Construed in this way, s 45(6)(b)(ii) operates to ensure the efficacy of an appeal under s 100(3), in the same way that s 45(6)(a)(ii) operates to ensure the efficacy of an appeal under s 100(1)(d) of the Act.
The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech31 JULY 2019
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