Friends of Hinchinbrook Society Inc v Minister for Environment

CATCHWORDS

STATUTORY CONSTRUCTION - whether consent under s 10 of the World Heritage Properties Conservation Act 1983 ("World Heritage Act") has the effect of a consent under s 9 of the Act - relationship between consents under each section - whether Minister has power under the World Heritage Act to give conditional consents.

ADMINISTRATIVE LAW - unreasonableness - challenge to consents issued by the Minister under ss 9 and 10 of the World Heritage Act - whether the Minister's reliance on contractual provisions and administrative arrangements was so unreasonable that no reasonable person could have given the consents.

ADMINISTRATIVE LAW - whether Minister deferred decision until preparation of State management plans - whether Minister is entitled to take account of environmental regulation to be implemented under State law in granting consents under the World Heritage Act - significance of the Convention of the Protection of the World Cultural and Natural Heritage.

ADMINISTRATIVE LAW - relevant and irrelevant considerations - whether Minister took into account social and economic factors in giving consents under s 9 of the World Heritage Act - whether Minister bound to take into account the "precautionary principle".

STATUTORY CONSTRUCTION - relationship between s.30 of the Australian Heritage Commission Act 1975 (Cth) and ss 9 and 10 of the World Heritage Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(d),(e),(f), 2(a),(b),(g)
Australian Heritage Commission Act 1975 (Cth), ss 4, 22, 30
Convention for the Protection of the World Cultural and Natural Heritage, Articles 3, 4, 5
World Heritage Properties Conservation Act 1983 (Cth), ss 9, 10, 13, 21, 22
World Heritage Properties Conservation Regulations, 3F(2)

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Commonwealth The v The State of Tasmania (1983) 158 CLR 1
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375
Country Roads Board The v Neale Ads Pty Ltd (1930) 43 CLR 126
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153
Foley v Padley (1983) 154 CLR 349

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
Luu v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Parramatta City Council v Hale (1982) 47 LGRA 319
Richardson v The Forestry Commission (1988) 164 CLR 261
South Australia v The Commonwealth (1962) 108 CLR 130
Tickner v Bropho (1993) 40 FCR 183
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180
Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68

FRIENDS OF HINCHINBROOK SOCIETY INC v MINISTER FOR ENVIRONMENT & ORS
NG 806 of 1996

Sackville J.
Sydney
14 February, 1997

IN THE FEDERAL COURT OF AUSTRALIA   )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 806 of 1996
GENERAL DIVISION   )

BETWEEN:

FRIENDS OF HINCHINBROOK SOCIETY INC

Applicant

AND:

MINISTER FOR ENVIRONMENT

First Respondent

CARDWELL PROPERTIES PTY LTD

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

Sackville J.
Sydney
14 February, 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA   )
DISTRICT REGISTRY                  ) No. 806 of 1996
GENERAL DIVISION                   )

BETWEEN:

FRIENDS OF HINCHINBROOK SOCIETY INC

Applicant

AND:

MINISTER FOR ENVIRONMENT

First Respondent

CARDWELL PROPERTIES PTY LTD

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

CORAM:    Sackville J
PLACE:    Sydney
DATE:     14 February, 1997

REASONS FOR JUDGMENT

I. INTRODUCTION

The Proceedings
In 1981, the Commonwealth nominated the Great Barrier Reef for inclusion in the World Heritage List, which is established and maintained pursuant to the Convention for the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation on 16 November 1972 (the "Convention"). The nomination was accepted by the World Heritage Committee, in accordance with the procedures laid down by Art. 11 of the Convention.

The Great Barrier Reef, as accepted for listing, extends approximately 2000 kilometres along the eastern coast of Australia, from just north of Fraser Island in the south to the latitude of Cape York in the north. It covers an area of 348,7000 square kilometres over Australia's continental shelf. The area listed includes Hinchinbrook Island and Hinchinbrook Channel, located near Cardwell in North Queensland.

The present proceedings challenge the validity of decisions made on 22 August 1996, by the first respondent (the "Minister") pursuant to ss. 9 and 10 of the World Heritage Properties Conservation Act 1983 (Cth) (the "World Heritage Act"). By those decisions, the Minister gave consent to the second respondent ("Cardwell Properties") to carry out certain acts related to the development of a proposed tourist resort at Oyster Point (the "Port Hinchinbrook development"), about half a kilometre from the town of Cardwell. The acts to which the Minister gave his consent were, in substance:

•the dredging of a marina access channel within Hinchinbrook Channel;

•the removal of fallen mangroves from defined areas; and

•the coppicing (cutting or pruning) of mangroves in defined areas to a height of not less than four metres above the seabed level.

The proceedings were brought by the applicant (the "Society"), which is an incorporated association with (according to the amended points of claim) a particular interest in the protection and conservation of the environment in and around Hinchinbrook Island and Hinchinbrook Channel. The Society contends that the Minister improperly exercised the powers conferred by ss. 9 and 10 of the World Heritage Act and committed a variety of legal errors in granting the consents. The Society seeks declaratory relief and orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"), the World Heritage Act, s.39B of the Judiciary Act 1903 (Cth), and the associated and accrued jurisdiction of the Court.

No challenge was made to the standing of the Society to seek relief. Section 13(5)(b) of the World Heritage Act provides that, for the purposes of an application under the ADJR Act in relation to a decision by the Minister to grant consent under ss. 9 or 10 of the World Heritage Act, an organisation is taken to be a "person aggrieved" if the decision relates to a matter which is within the organisation's objects and range of activities. Section 14(1) of the World Heritage Act empowers the Federal Court, on the application of an "interested person" to grant an injunction restraining a person from doing an act which is unlawful under ss. 9 or 10 of the Act. The reference to an "interested person" in s.14(1), in relation to an act that is unlawful by virtue of ss.9 or 10, includes an organisation whose objects, purposes and activities include the protection or conservation of the property in relation to which the act is unlawful: s.14(3)(b).

The Society does not seek relief against the third respondent ("Queensland"). However, prior to the hearing, Queensland applied to be joined as a respondent. On 24 October 1996, Branson J ordered, pursuant to s.12 of the ADJR Act, that Queensland be made a party to the application to the Court under that Act, on condition that it would not be entitled to seek an order for costs against any other party.

During the hearing of the claims for interlocutory relief the Minister and Cardwell Properties gave undertakings relating to the coppicing of foreshore mangroves. At the conclusion of the hearing before me, Cardwell Properties gave further undertakings relating to the mangroves, such undertakings to remain in force until 5 pm on the day judgment is delivered.

The facts were not in dispute. The evidence was exclusively documentary, a large volume of material being tendered without objection. I have been assisted by detailed written submissions from each of the parties, supplemented by oral submissions.

A Caveat
It should be stressed that the role of the Court in proceedings of this kind is not to determine the desirability or otherwise of the Port Hinchinbrook development. Nor is it to consider afresh the merits of the Minister's decision to grant the consents under the World Heritage Act. The essential issue in the proceedings is whether the Minister exceeded the powers conferred on him by the Act. The fact that not all decision-makers in the position of the Minister would necessarily have taken the same view as the Minister does not demonstrate that he committed any legal error. Whether or not he did so turns on the construction of the relevant legislation and the application to the facts of well-established principles of administrative law.

LEGISLATION

World Heritage Act
The Explanatory Memorandum accompanying the World Heritage Properties Conservation Bill 1983 identified the purpose of the legislation as follows:

"to provide for the protection of certain property that Australia has identified as 'natural heritage' or 'cultural heritage' within the meaning of an international treaty known as the Convention for the Protection of the World Cultural and Natural Heritage".

The Convention is set out in a Schedule to the World Heritage Act and some of its terms are incorporated by reference in the Act.

The constitutional validity of much of the World Heritage Act was challenged in The Commonwealth v The State of Tasmania (1983) 158 CLR 1 ("Tasmanian Dams"). The High Court, by a bare majority, upheld most of the challenged provisions. In particular, ss. 6 and 9 of the Act were upheld, subject to certain exceptions, as laws with respect to external affairs (s. 51(xxix) of the Constitution), while ss. 7 and 10 were upheld under the corporations power (s. 51(xx) of the Constitution).

The various judgments in Tasmanian Dams make observations about the scope and construction of the World Heritage Act. Since that case was decided the Act has been amended, principally by the Conservation Legislation Amendment Act 1988 (Cth). For present purposes, the relevant amendments were those altering the definition of "identified property" (now located in s. 3A) and the repeal of portions of s. 9 found to be unconstitutional in Tasmanian Dams. In general, however, the amendments do not affect the observations made by their Honours as to the construction and operation of the Act.

Section 6(3) of the World Heritage Act provides that, when the Governor-General is satisfied that any property in respect of which a proclamation may be made under the sub-section is being or is likely to be damaged or destroyed, he or she may declare, by proclamation, that property to be property to which s. 9 applies. A proclamation under s. 6(3) can be made only in relation to "identified property". That expression is defined by s. 3A(1)(a) to include property which satisfies one or more of the following conditions:

...;

the property is subject to World Heritage List nomination [by the Commonwealth under Article 11 of the Convention];

the property is included in the World Heritage List provided for in paragraph 2 of Article 11 of the Convention;

the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage."

Part of any property referred to in s. 3A(1)(a) is also "identified property": s. 3A(1)(b). A reference in the Act to damage to, or the destruction of, property or a site includes a reference to damage to, or the destruction of, any part or feature of that property or site: s. 3(4).

The expressions "cultural heritage" and "natural heritage" have the same meaning as they have in the Convention: s. 3(1). Article 2 of the Convention provides that the following shall be considered as "natural heritage":

"natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty."

The fact that property is "identified property" is not enough of itself to authorise a proclamation under s.6(3) so as to render s.9 of the Act applicable to that property. Such a proclamation can be made only in relation to identified property that:

• is not in any State (s. 6(1)); or

•is in a State and is property to which one or more of the paragraphs in s. 6(2) relate (s. 6(2)).

One of the paragraphs in s.6(2) is the following:

"(b)the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise".

Section 9(1) prohibits certain acts, subject to a Ministerial power of consent:

"(1)Where an act is prescribed for the purposes of this subsection in relation to particular property to which this section applies, it is unlawful, except with the consent in writing of the Minister, for a person to do that act, or to do that act by a servant or agent, in relation to that property."

Section 21(1)(a) confers power upon the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed.

Section 13(1), which is of considerable importance to the present case, limits the scope of the Minister's discretion to give a consent under s. 9(1):

"(1)In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property."

The World Heritage Act also sets up a protective regime for endangered identified property under ss. 7 and 10, although the parties in the present case disputed whether the regime is entirely independent from that enacted by ss. 6 and 9. The regime is directed to the activities of corporations. Section 7 provides that the Governor-General, if satisfied that any identified property is being or is likely to be damaged or destroyed, may, by proclamation, declare that property to be property to which s. 10 applies. Section 10(2) is as follows:

"(2)Except with the consent in writing of the Minister, it is unlawful for a body corporate that

...

(c)... is a trading corporation formed within the limits of the Commonwealth;

whether itself or by its servant or agent:

(d)to carry out any excavation works on any property to which this section applies;

...

(h)to kill, cut down or damage any tree on any property to which this section applies;

...

(m)if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property."

Sub-sections (3) and (4) of s.10 supplement s.10(2). Section 10(3) provides that, except with the Minister's written consent, it is unlawful for a body corporate of the kind referred to in s.10(2) to do any act (not being an act already unlawful by virtue of s.10(2)) that damages or destroys any property to which s.10 applies. Section 10(4) provides that, without prejudice to the effect of s.10(2) and (3), except with the Minister's consent, it is unlawful for a trading corporation, for the purposes of its trading activities, to do any act referred to in s. 10(2)(d)-(m), or in s. 10(3).

A consent given by the Minister pursuant to ss.9 or 10 may relate to a particular act or particular acts or a particular class or particular classes of acts: s.13(2). Where the Minister grants or refuses to give a consent pursuant to ss.9 or 10, the Minister must publish in the Gazette a notice stating that:

"the consent has or has not been given and setting out particulars of the act or acts to which the consent or the refusal to give the consent relates" (s.13(4)(a)).

A copy of the notice must also be laid before each House of Parliament within five sitting days of the giving or refusal of consent: s.13(4)(b).

Section 12 of the World Heritage Act addresses the relationship between that Act and State planning laws. Nothing in ss.9 or 10
renders it unlawful for a person to do an act that is authorised to be done by a provision, plan or scheme to which s.12(3) applies: s.12(3). If satisfied that an act that may be authorised or done pursuant to a State law, or a plan or scheme formulated under State law, would damage or destroy property to which ss.9 or 10 applies, the Governor-General may declare that s.12(3) applies to the law, plan or scheme. No such declaration has been made in the present case.

Before giving his or her consent pursuant to ss.9 and 10, in relation to a property or site within a State, the Minister must inform the appropriate Minister of that State and give the Minister an opportunity to make representations in relation to the proposed consent: s. 13(3).

The Australian Heritage Commission Act
The Australian Heritage Commission Act 1975 (Cth) (the "AHC Act") requires the Australian Heritage Commission (the "AHC") to keep a register, known as the Register of the National Estate, in which are listed places included in the Natural Estate: s.22(1). For the purposes of the AHC Act, the National Estate consists of those places, being components of the natural or cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community: s.4(1). The AHC Act lays down guidelines for determining whether a place should be included in the National Estate: s.4(2). It also establishes procedures for entering and removing places from the
Register: ss.23-24.

Section 30 of the AHC Act imposes duties on Commonwealth Ministers and authorities in relation to places in the Register:

"30.(1) Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring that the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures than can reasonably be taken to minimise the adverse effect will be taken and shall not himself take any such action unless he is so satisfied.

(2) Without prejudice to the application of subsection (1) in relation to action to be taken by an authority of the Commonwealth, an authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.

(3) Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it.

(3A) Where the Commission is informed of a proposed action by a Minister, Department or authority, the Commission shall, as soon as practicable, provide its comments on the proposed action to the Minister, Department or authority (as the case may be)".

On 21 October 1980, the Cardwell Range-Herbert River Gorge area was placed in the Register of the National Estate. That area
includes Hinchinbrook Island and Hinchinbrook Channel. On 26 April 1988, the Wet Tropical Forests of North Queensland, portion of which borders the western Hinchinbrook Channel, was placed in the Interim List of the Register. On 14 May 1991, the Great Barrier Reef region was placed in the Register of the National Estate.

III. FACTUAL BACKGROUND

The proposed Port Hinchinbrook development is located on 44 hectares of land at Oyster Point, adjacent to the Hinchinbrook Channel and opposite Hinchinbrook Island. The proposed resort complex, if and when completed, will accommodate a maximum of 1500 guests, plus day visitors. It will comprise convention and recreation centres, restaurants, shops, townhouses, condominiums and associated facilities. At least some of the townhouses and condominiums are to be sold or leased to individual buyers or lessees. The proposed resort will also include a marina, connected to Hinchinbrook Channel by a dredged channel, which will accommodate 234 vessels some of which will be up to 35 metres in length. The acts to which the Minister consented on 22 August 1996 are to be undertaken in connection with the Port Hinchinbrook development.

In order to understand the challenge made to the Ministerial consents, it is necessary to set out the factual background in some detail. Certain of the material that follows has been taken from a report to the Department of the Environment, Sport and Territories ("DEST") by Professor R J Fowler and Professor B Boer, entitled World Heritage Project, Part I: The Port Hinchinbrook Development (May, 1996). The report was in evidence.

1985-1993

In 1985, Resort Village Cardwell Pty Ltd, a subsidiary of Tekin Australia Pty Ltd ("Tekin") proposed a marina-based resort development at Oyster Point. Subsequently, the then Government of Queensland and Cardwell Shire Council granted a number of approvals for various works on the site, including the removal of mangroves. No formal environmental impact statement ("EIS") was required or obtained, there being no requirement for an EIS under Queensland law at that time. Initial work at the site commenced in 1989, including the clearing of seven hectares of mangroves and partial excavation of the proposed marina.

In 1989, Tekin applied to the Great Barrier Reef Marine Park Authority ("GBRMPA") for a permit under the Great Barrier Reef Marine Park Act 1975 (Cth) (the "GBRMP Act") to construct an access channel and breakwater into the Hinchinbrook Channel. At the time of this application, the GBRMPA received advice from the Commonwealth Attorney-General's Department that the waters of Hinchinbrook Channel fell within the boundaries of the Great Barrier Reef Marine Park, thereby making the GBRMP Act applicable to the works. The Commonwealth Minister for the Environment directed Tekin to prepare a public environment report under the Environment Protection (Impact of Proposals) Act 1974 (Cth) (the "EPIP Act") in relation to the offshore works. However, in 1990 Tekin went into provisional liquidation and the direction of the Minister ultimately lapsed.

Following Tekin's financial collapse, the site was left in a degraded state. The seven hectares of mangroves had been cleared along with other vegetation, while the marina site had been partially excavated. Work had not been commenced on the proposed access channel.

In 1991, the GBRMPA received further legal advice from the Attorney-General's Department that Hinchinbrook Channel, although part of the World Heritage listing of the Great Barrier Reef, was not within the Marine Park. This conclusion was reached because the waters of Hinchinbrook Channel were regarded as inland waters of Queensland and thus were outside the region over which the boundaries of the Park could extend. On this basis, approvals from the GBRMPA were not required for the marine works and the EPIP Act did not apply to the site. It may have been open to the GBRMPA to make regulations under s.66(2)(e) of the GBRMP Act, which allows regulations to be made for the purpose of prohibiting or regulating acts, whether inside or outside the Marine Park, that may pollute waters in a manner harmful to animals and plants in the Park. However, no such action was taken by the GBRMPA.

Cardwell Properties' Involvement and the Valentine Report
In May 1993, Cardwell Properties, a company controlled by Mr Keith Williams, purchased the land at Oyster Point and acquired the benefit of the approvals issued by the State and the Council.

In 1994, at the request of the Queensland Government, an environmental assessment of the revised Port Hinchinbrook development was undertaken. This did not produce a full EIS. However, a consultant's report was prepared, followed by an Environment Review Report prepared by the Queensland Department of Environment and Heritage. The Environment Review Report summarised the major issues, but dealt mainly with marine issues because of the approvals already in place. Both reports were made available for public comment over a four week period.

In June 1994, the DEST expressed the view that the Environmental Review Report was inadequate in relation to consideration of the Commonwealth's responsibilities for environmental protection, conservation and world heritage. The Commonwealth then commissioned a report, prepared by Dr Peter S Valentine, of the Department of Tropical Environmental Studies and Geography, James Cook University ("the Valentine Report"). The report, which was published in August 1994, is entitled Hinchinbrook Area - World Heritage Values and the Oyster Point Proposal.

Among other topics, the Valentine report addressed the World Heritage values associated with the Hinchinbrook Island area. These were identified by reference to the criteria applied by the World Heritage Committee in considering whether to accept the nomination for inclusion in the World Heritage List. Among the values identified in the report were the following:

•Hinchinbrook Island, the Channel and the adjacent mainland supported one of the largest occurrences of mangroves along the Wet Tropics coastline.

•Hinchinbrook Island and the Channel were areas of great scenic beauty and amenity.

•Hinchinbrook Channel had the third highest seagrass biomass along the coast between Cairns and Bowen. Perhaps the most important role of seagrasses was to provide essential food for dugongs and sea turtles.

•the Hinchinbrook area was a major feeding ground for dugong, which was a threatened species and was the only strictly herbivorous marine mammal.

The Valentine report concluded that there was an inadequate level of baseline environmental data on which to consider properly the proposal for development. The report recommended that a range of potential impacts on World Heritage values should be carefully investigated should the project proceed. The possible impacts included the effect of dredging on seagrasses; the impact of seagrass loss and increased boating and activity on dugongs and turtles; the impact on mangroves; and the effects of increased turbidity.

The report noted that most of the adverse impacts related to the construction of the marina. The author suggested two alternatives for consideration, namely, a large resort without a marina and a smaller resort (less than 100 rooms) also without a marina.

Subsequent correspondence between the Commonwealth Minister for the Environment and his Queensland counterpart reveals there was a difference of opinion concerning the impact of the Port Hinchinbrook development on World Heritage values. Despite a request by the Commonwealth Minister for a further environmental assessment, on 29 September 1994 a deed was executed by the State of Queensland, Cardwell Properties and Cardwell Shire Council. The effect of the deed was to allow the development to proceed, subject to conditions. The deed provided, inter alia, for the appointment of an independent monitor to conduct an environmental monitoring program, the cost of which was to be borne by the company. It also provided for an environmental site supervisor who could give reasonable and lawful directions to cease or modify the works to mitigate or eliminate adverse environmental impacts.

In late October 1994, Cardwell Properties began clearing mangroves on the site. In November 1994, the Commonwealth Minister requested Cardwell Properties to cease clearing mangroves while further investigations took place. This request did not result in the cessation of work.

The Proclamations and Regulations
On 15 November 1994, proclamations were made by the Governor-General, pursuant to s. 6(3) of the World Heritage Act in relation to areas of Hinchinbrook Channel at or near Oyster Point. The proclamations declared that the Governor-General was satisfied that the identified areas were likely to be damaged. There were some variations in the areas covered by the respective proclamations under s. 6(3), but nothing appears to turn on these variations. The proclaimed areas did not include Hinchinbrook Island itself.

Several days later, on 18 November 1994, reg. 3F was inserted into the World Heritage Properties Conservation Regulations (the "World Heritage Regulations"). This regulation prescribed certain acts for the purposes of s. 9(1) of the World Heritage Act in relation to the proclaimed areas (referred to as "the relevant property"). Regulation 3F(2) provides as follows:

"(2)For the purposes of subsection 9(1) of the Act, each of the following acts is prescribed in relation to the relevant property:

(a)performing excavating or other earth-moving works, including dredging;

(b)killing, removing or damaging a native plant;

(c)disturbing soil (including marine sediment) in such a way as to damage a native plant;

(d)constructing, establishing, maintaining or continuing to construct, establish or maintain:
(i) a breakwater; or
(ii)a revetment; or
(iii)any other substantial structure;

(e)carrying out work preparatory to an act referred to in paragraph (d);

(f)carrying out work associated with an act referred to in paragraph (d);

(g)introducing fluid into a body of water adjacent to or in the relevant property;

(h)permitting, authorising, directing or ordering, or purporting to permit, authorise, direct or order, the doing of an act of a kind referred to in paragraph (a), (b), (c), (d), (e), (f), or (g);

unless the act is so performed that no damage will occur to the relevant property or part of the relevant property, and whether the act is performed alone or in connection with another act."

The 1995 Applications

On 23 February 1995, Cardwell Properties applied under the World Heritage Act to the Commonwealth Minister for consent to several activities relating to the proclaimed uses of Hinchinbrook Channel. These activities included construction of breakwaters and an artificial beach, dredging of the marina access channel, and implementation of a beach and foreshore. DEST commissioned a consultants' report (the "NECS report") to consider the impact of the proposed activities on the proclaimed area.

The NECS report was completed in July 1995. It concluded as follows:

"On the basis of the review undertaken, it is concluded that the potential exists for significant quantities of sediment to be generated as a result of the proposed development which could affect the areas within the Proclaimed Area.

The precise nature of all these sediment types and volumes are unknown at present. The extent and effect of the alteration to the hydrodynamic regime at Oyster Point as a result of the construction of the breakwaters is not known. Hence the rate and location of the deposition of the additional sediment inputs is not known.

If the tidal and current regime were to deposit these additional sediments on or around sea grass beds, then this could have adverse effects on the sea grasses. There is not enough data available at present to estimate what the effects are likely to be. If the sea grass beds are lost temporarily or permanently, it is probable that impacts on resident and transient populations of fish, turtles and dugongs will occur. As such these impacts would adversely impact on the World Heritage Value of the Proclaimed Area."

On 15 September 1995, the Minister made decisions on Cardwell Properties' application. The Minister granted consents pursuant to ss.9(1), 10(3) and 10(4) of the World Heritage Act to the removal of fallen mangroves and the clearance or coppicing of mangroves in certain areas. Consent was refused to all other activities. The practical result was that Cardwell Properties could not proceed with the project.

The 1996 Applications
On 12 April 1996, Cardwell Properties made a fresh application for the Minister's consent under ss.9 and 10 of the World Heritage Act. The application eliminated the proposed breakwaters but sought consent inter alia, for the dredging of an access channel and a beach and foreshore management plan, the latter being a modification of the plan for which consent had been sought and refused in February 1995. The application was subsequently amended several times before it was ultimately
determined by the Minister. The amendments proposed the removal of fallen mangroves from certain areas and the coppicing of mangroves to a height of not less than four metres in parts of those areas.

Advice to the Minister
On or shortly before 9 July 1996, the Secretary of DEST provided the Minister with a briefing paper "to assist [his] decision-making on the applications by Cardwell [Properties] for consents under the [World Heritage] Act" and list the options open to him in relation to that decision-making. The paper noted that the GBRMPA had co-ordinated an exercise which sought the views of six commissioned independent scientists and about 30 "key stakeholders". Mr Williams of Cardwell Properties had been afforded the opportunity to comment on the various views expressed. In addition, about 50 unsolicited submissions and representations had been received.

The briefing paper, inter alia, made the following points:

the Minister was required to make three decisions with respect to each prescribed act, namely, a decision in relation to each activity for which consent was sought under each of ss. 9(1), 10(3) and 10(4) of the World Heritage Act;

the tests were different in relation to the s. 9(1) and s. 10 decisions;

(iii)by reason of s. 13(1), a consent could be granted under s. 9(1) only if the Minister were satisfied that the carrying out of the activity in question was consistent with the publication, conservation and preservation (within the meaning of the Convention) of the World Heritage values of the area;

the Minister could not consider under s. 9(1) economic or commercial effects or general environmental impacts unrelated to World Heritage values;

the Minister could have regard to the cumulative impact on the World Heritage values of the proclaimed area of activities which were facilitated by the acts for which the consents were sought, when considering whether the consents would be consistent with the protection, conservation or presentation of that area; and

in considering decisions under ss.10(3) and (4) of the World Heritage Act, the Minister could consider, in addition to World Heritage values, general economic, commercial and other considerations, including the impact on the National Estate.

The briefing paper addressed the approach available to the Minister on the question of granting consent:

"In considering whether carrying out each particular activity for which consent is sought is consistent with the `protection, conservation and presentation' of the proclaimed area, you are entitled to be cautious. If your mind is evenly balanced on the issue you would be entitled to refuse consent. If you are inclined toward granting a consent but are concerned about some matters relevant to the conservation, protection or preservation of the proclaimed area that you feel could be addressed by, for example, the existence of a management plan or an undertaking by the proponent, then you would be entitled to indicate that. If a relevant plan or undertaking were to be provided you would be entitled to take that into account in making a decision".

The briefing paper also considered the operation of the AHC Act:

"Decisions granting consent under s.10(3) and 10(4) of the Act will attract the operation of the AHC Act if the activities permitted under the consents adversely affect a place that is part of the national estate. By virtue of s. 30(1) of the AHC Act, if the activities permitted under the consents adversely affect a place that is part of the national estate, you must not give consent under s. 10(3) and 10(4) unless you are satisfied that there is no feasible and prudent alternative to the giving of the consent and that all measures that can reasonably be taken to minimise the adverse effect on the National Estate will be taken.

The Australian Heritage Commission ("the AHC") strongly recommended that impacts on Aboriginal heritage values should be considered (see GBRMPA stakeholders comments and letter to GBRMPA from the AHC at Attachment 11). The AHC does not specify these values but notes that they are likely to exist in the Channel and its National Estate surrounds including Hinchinbrook Island. The AHC letter also raises the potential for impact on National Estate listed places in the hinterland, particularly in the Cardwell Ranges. It is, in our view, unlikely that any consents you might consider granting would impact directly on these areas. There is an opportunity to consider management arrangements to minimise any consequential effect and we note that the draft Wet Tropics Management Plan is relevant. The protection of Aboriginal Heritage values is also an object to be met in the development of a Hinchinbrook Channel Regional Plan."

The briefing paper then considered in some detail conflicting views expressed in relation to beach and foreshore management and the dredging of the main access channel. The paper suggested that the Minister might be disposed to grant consent for initial dredging, but require Cardwell Properties to provide, by deed, a commitment to use best engineering practice and to monitor and manage further maintenance dredging.

Under the heading "Overall Impact on World Heritage Values", the briefing paper observed that perhaps the most important World Heritage issue associated with the development of the resort was the potential direct and indirect impact on dugongs because of their reliance on seabed grasses and their susceptibility to being struck by boats. After considering a report on the issue from Professor Marsh, the paper stated that the Minister might reach the view that:

"prior to providing any consents that will lead to the development of the Port and a significant associated increase in boat traffic, you wish to be assured by the Queensland Government that they will monitor dugong behaviour, and introduce management plans, including, if necessary, speed limits for all boats and key habitat zones from which boats are excluded. Any such action plan for the dugong could also address any other forms of anthropogenic threat to this creature such as gill netting or indigenous hunting."

Additional concerns relating to the scale of the resort near a sensitive region of the World Heritage area, including Hinchinbrook Island, were:

"best addressed through interim and permanent management measures to ensure that World Heritage and National Estate values are not damaged. You might consider it important to have an undertaking from the Queensland Government in relation to the development of such a plan prior to granting any consents you might be considering."

The paper identified the options open to the Minister as follows:

"In relation to each of the activities the subject of the applications for consent, the options open to you are as follows:

you may consent to the activity under ss. 9(1), 10(3) and/or 10(4); or

you may refuse consent to the activity under ss. 9(1), 10(3) and/or 10(4); or

you may defer a decision pending the provision of additional assurances."

A Tentative View

On 9 July 1996 the Minister issued a press release stating that, on the basis of advice, he was satisfied that:

"provided best practice engineering approaches are used, the activities proposed could be carried out in a manner which is consistent with the protection, conservation and presentation of the World Heritage Values of the area and without causing any significant damage to the immediate environment around Oyster Point."

The Minister further stated that he was inclined to grant consent, but wished to be satisfied that best practice engineering practices could be adequately provided for by legally binding arrangements. He also wished to finalise details of a process to develop an integrated management plan which would address the broader development issues facing the Hinchinbrook area. In addition, he would consider the representations of the Queensland Minister and the comments of the Australian Heritage Commission ("AHC").

On 10 July 1996, the Minister wrote to Mr Williams of Cardwell Properties stating that he was inclined to grant the consents, other than for the application in relation to the breakwaters, which had been withdrawn. He invited Cardwell Properties to enter discussions to put in place management practices by way of a deed or otherwise, which would make provision for:

•stabilisation of the foreshore;

•monitoring continuing erosion;

•controlling the impact of acid sulphate soil; and

•ensuring best practice dredging.

On the same date, the Minister wrote to his Queensland counterpart, expressing the view that:

"an agreement between your Government and the Commonwealth to put in place appropriate measures to develop management arrangements for the entire Hinchinbrook Channel region would be the most appropriate mechanism for dealing with concerns arising from the development pressures within the region, including concerns expressed about the long term impact of the proposed development at Oyster Point.

I envisage such a plan would address the issues raised in my Department's letter of 11 June 1996, and in particular the protection of dugong and seagrass, but may well pick up additional matters such as control of day visitors to Hinchinbrook Island and appropriate provision for the protection of Aboriginal cultural heritage. The Commonwealth has already agreed to provide financial assistance for its development."

Advice from the AHC
In a letter dated 25 July 1996, and in subsequent correspondence, the AHC expressed the view that granting consents to the proposed actions would have adverse effects on some National Estate values immediately within the proclaimed World Heritage area and potentially significant, long term adverse effects on the National Estate values in the wider region. The three national estate areas identified by the AHC as most affected by the proposal were the Great Barrier Reef area, the Cardwell Range-Herbert River Gorge area and the Wet Tropical Forests of North Queensland. The AHC acknowledged that some of the adverse impacts could be substantially lessened by appropriate measures, such as those proposed for in a deed of agreement or a Regional Management Plan. However, on balance, it considered that there would be adverse effects on the National Estate because of the scale of the development, the nature of the environment, the lack of certainty in predicting the impact of the development and difficulty of ensuring compliance with conditions and planning measures. The AHC made detailed comments as to the impact on National Estate values and suggested measures to be included in
any deed of agreement or Regional Management Plan which it considered essential to minimise the impact of the proposed development.

On 7 August 1996, the Minister wrote to the Chair of the AHC. He stated that, in view of the AHC's opinion that there would be an adverse impact on National Estate values within the proclaimed area, he formally advised the AHC, in accordance with s.30(3) of the AHC Act, that he proposed to give consent to the dredging of the marina access channel to the beach and foreshore management plan. He invited the AHC to comment on the proposed consent.

The AHC did so on 9 August 1996. The AHC repeated the view expressed in its earlier letters. It referred to the draft deed which had been prepared and noted that the deed addressed many of its concerns. However, the AHC considered that there were still potentially a number of adverse effects and suggested that amendments should be made to the deed to address its concerns. The AHC also observed that the Regional Hinchinbrook Management Plan would be prepared in accordance with Queensland law over the succeeding 12 months, but that it (the AHC) would only be able to comment once the Plan was prepared.

Advice of 14 August 1996
On 14 August 1996, the Executive Director of the Environment Strategies Directorate within DEST provided further advice to the Minister. The advice included an attachment analysing the consent applications. The attachment contained the following conclusion and advice:

"On the basis of the scientific evidence, all of the measures contained in the Deed of Variation and for which provision is made in the regional planning arrangements, it is the Department's view that the revised BFMP [beach and foreshore management plan] as described in Schedule 3 to the Deed of Variation can be implemented consistently with the protection, conservation and presentation of the World Heritage. For the purposes of your decisions under s. 9 of the Act, therefore, your consent to the acts itemised above is consistent with the protection, conservation and presentation of the World Heritage property. For the purposes of your decisions under s. 10 of the Act, taking into account all other relevant matters, including economic and commercial considerations, and matters relating to the National Estate, each of the acts for which consent is required as part of the revised BFMP could be carried out consistently with the protection, conservation and presentation of the World Heritage property and without any significant damage to the immediate environment around Oyster Point.

...

I reiterate that in relation to decisions under s.9(1) of the Act, you may consider only such evidence that is relevant to the protection, conservation and presentation of World Heritage. Under s.10(2), (3) and (4) you are also required to consider all other relevant evidence and must consider the potential social, economic and commercial impacts as well as issues arising by virtue of your responsibilities under the AHC Act relating to the National Estate."

Deed of Variation
On 20 August 1996, a deed of variation was executed by and on behalf of Cardwell Properties, Cardwell Shire Council, the State of Queensland and the Commonwealth. The purpose of the deed of variation was said to be to amend the deed of 29 September 1994 ("the 1994 deed"), which governed the development of the Port Hinchinbrook site, so as to include the Commonwealth as a party: cl.3. The deed of variation recited, inter alia, that Cardwell Properties had resolved to seek variations of certain consents and approvals it held to accommodate certain concerns of the Commonwealth and that the company had applied for Ministerial consent under the World Heritage Act to do certain acts. It recited that, before the Minister was prepared to make a decision on the grant of consents, he required the company to enter into "certain legally enforceable arrangements to ensure the protection, presentation and conservation of the world heritage values in relation to the Proclaimed Areas".

The deed provided for the site to accommodate a maximum of 1500 people (cl.20.1). The company was not to construct more than two levels of accommodation and one level of carpark (cl.20.2). However, the highest building base could be up to six metres above the highest astronomical tide (cl. 20.3). Except with consent of the Council, maximum building height measured from the base was to be 13 metres to the top of the roof, except for special purpose buildings which had a limit of 15 metres (cl.20.4, 20.5). Buildings could be constructed up to 20 metres from the seaward boundary of the site (cl.20.6).

The company was to comply with all applicable laws, regulations, management plans and draft management plans with respect to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (cl. 19.1). Clause 19.2 provided as follows:

"Any of the Company's proposed activities in regional, national or marine parks which may result in new or significantly increased impact or visitations, without limitation, must be consistent with the conservation, protection and presentation of world heritage property, and any management plan or draft management plan prepared by the Department and notified to the Company".

The deed provided that Cardwell Properties could not assign its interest under the deed or change its beneficial holding (unless it was a listed company) without the consent of the other parties (cl.25.1, 25.2). The other parties could consent to the proposed assignment if the assignee covenanted with each of those parties to comply with Cardwell Properties' obligations under the deed (cl.25.5).

Further reference will be made to the terms of the deed as varied when I consider the reasons given by the Minister for his decision to grant consents for certain activities.

The Memorandum of Understanding
On the same date as the deed of variation was executed, 20 August 1996, the Commonwealth and the State of Queensland entered into a Memorandum of Understanding (the "MOU"). By way of background, the MOU recorded that the Commonwealth and Queensland had entered into the agreement to:

"ensure that any resort or other commercial development which is approved in the Hinchinbrook region, including the proposed development at Oyster Point by Cardwell Properties Pty Ltd, is carried out in accordance with interim arrangements and final regional management plans which ensure natural and cultural values are adequately protected."

The MOU provided for the establishment of a management committee consisting of one senior official from each of the Commonwealth and the State: cl.1.1. The management committee was required to:

"agree on and use its best endeavours to implement a process to put in place:

(a)interim management arrangements for the Hinchinbrook region as soon as possible should there be a demonstrated need; and

(b)a final management plan for the Hinchinbrook region ... no later than 30 June 1998, with the parties and the Management Committee using their best endeavours to have the final plan in place by 31 December 1997 (cl. 1.2)".

The management committee was required to consult with the regional advisory committee established under the Coastal Protection and Management Act 1995 (Qld) (the "Coastal Protection Act") in relation to the interim management arrangements and final management plan: cl.1.3. In agreeing on a process the management committee was to have regard to the document entitled "Terms of Reference for the Cardwell/Hinchinbrook Regional Coastal Management Plan", attached to the MOU (the "Terms of Reference").

The MOU identified the "main broad objectives" of the interim arrangements and the final plan for the Hinchinbrook region as follows (cl.2.1):

"•protect and conserve natural and cultural values, particularly world heritage values;

•provide for management of current and future activities which may impact individually or cumulatively on the region's environment, so that they are ecologically sustainable;

•provide guidance for decision makers and stakeholders as to the acceptability or otherwise of current and proposed activities;

•provide for ongoing community involvement in the management of the region's coast through participation in plan development and review;

•provide for monitoring and reporting arrangements on effectiveness in meeting the plans' objectives; and

•identify responsibilities and resource requirements for the plans' implementation."

The MOU also identified the values which needed to be addressed "with particular attention in the arrangements and plan", including the following (cl. 2.2):

"•World Heritage, National Estate and other high conservation values including rare, threatened and endangered species;

•critical and/or sensitive habitats, such as seagrass and mangroves;

•Aboriginal sites and use values;

•scenic values;

•water quality; and

•biodiversity."

The MOU specified a number of activities which had to be addressed and controlled under the plans (cl.2.3). These included:

"•coastal development or construction;

•mangrove removal, reclamation or other foreshore modifications; and

•motorised water sports and boating operations generally, especially implementation of speed limits in areas of high dugong density".

The Commonwealth's responsibilities under the MOU were to advise the management committee on World Heritage and National Estate values to be protected and to make financial contributions to the process of developing the management plan: cl.3.1. The State's responsibilities were to advise the management committee on how the interim arrangements and the final plan would be formulated and implemented in accordance with the State's administrative and legislative framework and to meet certain costs and expenses: cl.3.2.

Clause 3.3 of the MOU was as follows:

"3.3Both the Commonwealth and the State, within their respective legislative and contractual powers, will use their best endeavours to ensure that the establishment of any resort or any other commercial development in the Hinchinbrook region is carried out in accordance with the interim arrangements and the final plan and any legislation relating to the protection of natural and cultural values for which the Commonwealth and the State are respectively responsible."

The Terms of Reference attached to the MOU noted that the development of a plan was identified as necessary during negotiations in relation to Oyster Point. The document also noted that it was proposed to expand this requirement and undertake a broader planning program for a wider area. It was said that such a program could best be achieved by developing a Regional Coastal Management Plan under the Coastal Protection Act, this being the first use of a "relatively new Act".

The Terms of Reference reproduced the objectives specified in the Coastal Management Act: ss.3, 31. They also reproduced the objectives set out in s.2.1 of the MOU and the values identified in cl.2.2 of the MOU. However, the Terms of Reference also included among the values which needed to be addressed "social and economic values". Social and economic values were not included in the list of values identified in cl.2.2 of the MOU.

The Consents
On 22 August 1996 the Minister granted the consents which are the subject of challenge in the present proceedings. The instrument of consent revoked the consents granted on 15 September 1995 and gave the following consents under the World Heritage Act:

•pursuant to s. 9(1), a consent to Cardwell Properties dredging the marina access channel;

•pursuant to s. 10(2), (3) and (4) consents to Cardwell Properties dredging the marina access channel in the marina channel area;

•pursuant to s. 9(1), a consent to Cardwell Properties removing fallen mangroves from specified areas and coppicing mangroves in some of these areas to a height of not less than four metres above average seabed level;

•pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves seaward in the specified areas and coppicing mangroves seaward in some of those areas;

•pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves landward in the specified areas and coppicing mangroves landward in some of those areas; and

•pursuant to s. 10(4), a consent to Cardwell Properties removing fallen mangroves from the specified areas and coppicing mangroves in some of those areas.

Release of Key Documents
On 11 September 1996, the Minister released "key documents" relating to the assessment process. The accompanying document contained the following paragraph:

"I wish to emphasise the Commonwealth's commitment to the regional planning process. We understand Queensland share[s] our commitment to this process. The Commonwealth, however, has particular responsibility for protection of world heritage values. Accordingly, if for any reason the regional planning process does not deliver the required protection for world heritage values then I will use all powers available to me to protect world heritage values in the Hinchinbrook area, including those values in the Hinchinbrook Channel and on Hinchinbrook Island."

Statement of Reasons
On 23 August 1996, the applicant requested the Minister to provide reasons for his decisions. On 8 October 1996, shortly after the present proceedings were instituted the Minister released a statement of reasons for his decisions under ss.9(1), 10(2), (3) and (4) of the World Heritage Act, that "consent be given for Cardwell Properties Pty Ltd to implement a revised Beach and Foreshore Management Plan and to dredge the marina access channel at Oyster Point, Queensland".

The reasons set out background information and noted that Cardwell Properties' proposed actions required consent:

under s.9(1), because they involved the company doing, in relation to areas proclaimed under the regulations, acts prescribed by reg. 3F;

under s.10(2), to the extent they involved the company, being a trading corporation, doing in the proclaimed area acts prohibited by s.10(2)(d) and (h);

(iii)under s.10(3), because they involved the company, being a trading corporation, doing acts (not already being unlawful under s.10(2)), which might damage or destroy the proclaimed area; and

under s.10(4), because the acts referred to in (ii) and (iii) were to be done by the company, being a trading corporation, for the purposes of its trading activities.

The reasons record a finding by the Minister that the proposed dredging of the marina access channel could potentially have immediate and cumulative, continuing and consequential impacts on the proclaimed area, specifically through increased turbidity and maintenance dredging, both of which could damage seagrasses (para. 24). The Minister also found that independent scientists held the view that the dredging of the marina access channel could go ahead without significant impact on the immediate environment around Oyster Point provided best engineering practices were used. In particular, he found that techniques to control dispersion could be utilised to minimise the impact of dredging (para.25).

The Minister found that the potential impacts were addressed in the amended deed as follows (para. 26):

"(a)all waters flowing from the land as a result of construction activities (which includes maintenance dredging) must, so far as turbidity is concerned, be of a quality at least equal to that of the receiving waters and, so far as pH is concerned, be within a pH range of 6 to 9 (Cl.7.1 of the Deed, as amended);

(b)Cardwell cannot commence dredging until the Commonwealth approves the Turbidity Control Plan (TCP) (Cl.7.3 of the Deed, as amended);

(c)all plans, including the TCP, are required to be prepared and implemented in accordance with best engineering practice (Clause 4.4 of the Deed as amended);

(d)the TCP will deal with a number of key issues affecting water quality in Hinchinbrook Channel, namely marina de-watering, operation of spoil ponds, stabilisation of the development site, management of stormwater and the management of acid sulphate soils (Cl. 7.1 of the Deed as amended); and

(e)the Commonwealth has various powers to ensure compliance, including certain powers of entry (clause 26 of the Deed as amended) and certain powers to remedy any default by Cardwell at the expense of Cardwell (clauses 7.8 and 24, as amended)".

The Minister further found that the parties to the amended deed had been advised that the Minister would not approve the TCP unless it provided for best practice engineering methods to be followed for the dredging of the marina access channel (para.27).

In relation to the proposed Beach and Foreshore Management Plan at Oyster Point, there was a risk that the actions under the Plan could increase turbidity and thus cause immediate and cumulative impacts on the seagrasses in the proclaimed area, which might adversely affect the dugong population (paras.29 and 30). However, the Minister found that adequate measures would be in place under the revised Plan and the amended deed to address the risk of any impacts associated with the actions under the Plan (see para. 32, where the relevant clauses of the amended deed are summarised). These included an obligation on Cardwell Properties to implement a revised Beach and Foreshore Management Plan; a requirement under the Plan that Cardwell Properties undertake new mangrove plantings in certain areas and refrain from clearing certain surviving mature mangroves; and provision for monitoring the affected areas.

The Minister found that the dredging of the marina access channel would lead to increased boating in the proclaimed area, which in turn would increase the risk of boats striking dugongs (para.
34). The Minister also found that:

"(a)the potential impact...could be adequately addressed by the development and implementation of the proposed regional plan;

(b)the proposed regional plan would provide for further studies to be undertaken into the status of dugong populations and for management arrangements to be put in place to protect, conserve and present this World Heritage value; and

(c)it was likely that the proposed regional plan would be in force before the resort was operational" (para.35).

There was an increased risk of pollution in the proclaimed area from the operation of the resort and from increased numbers of visitors. However, these impacts had been adequately addressed in the deed and would be addressed in the proposed regional plan (para 36). The Minister concluded as follows (para 38):

"Having regard to the protective arrangements which have been put in place and those that I expected would be put in place, I found that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant."

The reasons for the decisions to grant consents under s.9(1) of the World Heritage Act were expressed as follows:

In determining whether to give consents under s. 9(1) of the Act, I had regard only to the protection, conservation and preservation [sic - presentation] (within the meaning of the Convention) of the proclaimed area.

I considered the potential immediate and direct impacts of the proposed actions on the proclaimed area. I also gave consideration to potential cumulative, continuing and consequential impacts on the proclaimed area, recognising that granting consents would facilitate the construction and operation of the resort.

On the basis of the findings in paragraphs 24-38 I concluded that any such potential impacts would be limited and ameliorated by the protective measures provided for in the revised [Plan] and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought."

The Minister then addressed the reasons for granting consents under s. 10(1) of the World Heritage Act. He found that there were potential impacts flowing from the size of the proposed resort and marina, including increased boating and a large number of day visitors (para.43). There was a risk of boats striking dugongs and the Great Barrier Reef World Heritage area could be adversely affected unless appropriate management arrangements were put in place (paras.45-46). The Minister also found that the potential impacts could be adequately addressed through the development and implementation of the proposed regional plan (para.47). Other relevant findings included the following:

•management plans for the Wet Tropics World Heritage area and for Hinchinbrook Island were likely to be finalised and in place before the resort was operational; such plans would be likely to ensure the protection, conservation and presentation of the Hinchinbrook region environment (para.48);

•under the deed as varied, Cardwell Properties had to comply with laws, regulations, plans and draft management plans relating to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (para.49);

•the proposed regional plan would provide for management arrangements, including further studies, to be put in place to conserve the dugong population and it was likely that the arrangements would include the regulation of boat speeds and identification of areas from which boats would be excluded (para. 50).

The statement of reasons continued as follows:

Having regard to the protective arrangements which had been put in place and those that I expected would be put in place, I found that the risk of:

(a)adverse impacts on environmental values of the proclaimed area other than World Heritage values; or

(b)adverse impacts on environmental values of the adjacent areas and the surrounding region, including but not limited to World Heritage values,

as a result of the proposed actions and the construction and operation of the resort and the marina, was so low as in all the circumstances to be insignificant.

I found that because granting consent would facilitate the development of the resort it would accordingly deliver significant economic and commercial benefits to the Cardwell region. These benefits would be delivered principally through increased employment opportunities and through increased economic activity associated with the operation of the resort and with the growth in tourist numbers. However, I gave such considerations relatively little weight.

I accepted that the giving of consents under s. 10 of the Act would be an action that might adversely affect, as part of the national estate, a place that is in the Register of the national estate, within the meaning of s.30(1) of the AHC Act. Accordingly, for the purposes of my decisions under s.10, I gave consideration to the matters set out in s.30(1) of the Act.

I found that there was no feasible and prudent alternative to the giving of the consents and that all measures that could reasonably be taken to minimise any adverse effect on the National Estate would be taken.

...

On the basis of [previous] findings I concluded that any such potential impacts on the proclaimed area would be limited by the protective measures provided for in the revised [Plan] and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought.

In relation to the adjacent areas and the surrounding region, I concluded, on the basis of the [previous] findings that any potential adverse impacts would be limited and ameliorated to such an extent by the proposed management arrangements that granting the relevant consents would -

(a)be consistent with the protection; conservation and presentation of World Heritage values; and

(b)ensure an adequate level of protection for National Estate values and other environmental values."

The Minister accepted the AHC's view that giving consent to the proposed actions under s.10 might adversely affect each of the three listed National Estate areas (para.65). He considered that there were alternatives to giving consents, namely, to refuse all consents; to refuse consent to the dredging, thereby preventing establishment of the marina; or to refuse consent unless Cardwell Properties agreed to reduce the size of the resort (para.68). The Minister found that if any of the alternatives was adopted, Cardwell Properties would refuse to proceed with the project and that the region would lose significant commercial and economic benefits (paras.69-70). Accordingly, the Minister concluded that none of the alternatives was feasible or prudent (para.72). Moreover, having regard to the finding that each of the proposed plans was likely to be in force before the resort became operational, all measures that could reasonably be taken to minimise the adverse effects on the region would be taken (paras. 75-76).

THE ISSUES

The Applicant's Contentions
As is often the case in challenges to decisions on administrative law grounds, the applicant relied on a large number of arguments, some of which overlapped. In brief, as I understood them, the principal grounds relied on under that Act were the following:

The Minister's consent under s.9(1) of the World Heritage Act was an exercise of the power so unreasonable that no reasonable person could have so exercised it: ADJR Act, s.5(1)(e), (2)(g). Given the warnings to the Minister of adverse impacts on World Heritage values, it was unreasonable for him, in effect, to rely on the Government of Queensland to take the necessary action to eliminate or minimise those impacts.

In any event, the Minister misconstrued the statutory power under the World Heritage Act: ADJR Act, s. 5(1)(d), (f). Section 9(1) of the World Heritage Act, in the light of s.13(1), empowered the Minister to grant consent only if satisfied that there would be no material adverse impact on the protection and conservation of the proclaimed property. The Minister did not satisfy himself of these matters at the time he made the decision. Rather, he allowed others to address the issue at a later stage, in the context of management plans or other measures to be taken by State authorities. Thus the Minister had improperly deferred consideration of relevant questions: ADJR Act, s. 5(1)(e).

(iii)As a matter of construction of the World Heritage Act, the Minister was not entitled to take account of what he believed the State would or might do pursuant to State laws, plans or schemes. To do so constituted an error of law by taking into account an irrelevant consideration: ADJR Act, s.5(1)(e), (f), (2)(a). Moreover, the Minister had failed to pay regard to the provisions of the Convention in exercising his powers under ss.9 and 10 of the World Heritage Act.

The Minister erred in law because he mistakenly assumed that he had no power to impose conditions on any consent granted under ss. 9 and 10 of the World Heritage Act: ADJR Act, s. 5(1)(f). By reason of this mistake, he approached the question of controls by means of the deed as varied and the MOU, rather than conditions imposed on Cardwell Properties.

The Minister failed to give consideration to the landscaping of the development site, thereby overlooking a factor relevant to the scenic features of the proclaimed area and nearby places on the Register of the National Estate: ADJR Act, s.5(1)(e), (2)(b).

The Minister erroneously took into account the matters specified in s.30 of the AHC Act only in relation to the decision required under s.10 of the World Heritage Act and not in relation to the decision under s.9: ADJR Act, s.5(1)(e), (f), (2)(b).

(vii)The grant of consents under s.9(1) of the World Heritage Act took into account an irrelevant
consideration, because the terms of reference for the regional management plan, annexed to the MOU, specifically required social and economic values to be taken into account: ADJR Act, s.5(1)(e), (2)(a).

(viii)Although the Minister claimed not to have taken into account social and economic factors in granting consents under s.9(1) of the World Heritage Act, in fact he did so, thereby taking into account irrelevant considerations: ADJR Act, s.5(1)(e), (2)(a).

In exercising his powers under the World Heritage Act and the AHC Act the Minister failed to apply the "Precautionary Principle", that decision-makers should be careful to prevent irreversible harm to the environment in circumstances of scientific uncertainty concerning the nature and scope of environmental harm. Thus he failed to take account of a further relevant consideration: ADJR Act, s.5(1)(e), (2)(a).

The Minister failed to give proper, genuine and realistic consideration to the requirement in s.30(1) of the AHC Act to consider whether there were feasible and prudent alternatives to the granting of consent and, in any event, his determination on this question was manifestly unreasonable: ADJR Act, s.5(1)(e), (2)(g).

Common Ground
There was some common ground between the parties. That common ground related to the test applied by the Minister in order to determine whether consents should be granted under s.9(1) of the World Heritage Act.

Section 9(1) imposes a prohibition, by making it unlawful to do a prescribed act in relation to proclaimed property, except with the Minister's written consent. The most important prescribed acts in the present case were excavating (including dredging) in the relevant areas of Hinchinbrook Channel and killing, removing or damaging native plants in those areas: World Heritage Properties Conservation Regulations (as amended), reg.3F(2)(a),(b). Section 13(1) of the World Heritage Act provides that in determining whether or not to give a consent pursuant to s.9(1) in relation to any property to which s.9 applies, the Minister "shall have regard only to the protection, conservation and presentation...of the property" [emphasis added].

The reference to "property" in s.13(1) is to the particular property which forms part of the World Heritage - in this case the portions of Hinchinbrook Channel described in the proclamation under s.6(3) of the World Heritage Act. Thus, the Minister is to have regard only to the protection, conservation and presentation of that property: Tasmanian Dams, at 143, per Mason J. That leaves unresolved the meaning of the words of s.13(1) quoted in the previous paragraph.

In Tasmanian Dams, Mason J said (at 143) that the terms of s.9(1)

"may mean that the Minister is bound to refuse consent when (a) the applicant fails to satisfy the Minister that a proposed activity or development is consistent with the "protection, conservation and presentation" of the property; or (b) the Minister's mind is evenly balanced on that issue.

The scope of the Minister's discretion in s.13(1) is therefore narrower than the discretion to grant or refuse consent in regs.5(1) and (2) of the World Heritage (Western Tasmania Wilderness) Regulations which enables the Minister to take into account and balance considerations which compete against the protection and conservation of the property."

This construction of s.9(1) was described by Mr Hilton SC, who appeared with Mr Faulkner for the Minister, as imposing a stringent test, in the sense that the Minister could only grant consent if positively satisfied that a proposed activity is consistent with the protection, conservation and presentation of the relevant property.

The language of s.9(1) is open to another, less stringent, construction. In Richardson v The Forestry Commission (1988) 164 CLR 261, Mason CJ and Brennan J commented on s. 18(1) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth). The sub-section provided that, in determining whether or not to give a consent under s. 16, inter alia, to forestry operations, the Minister "shall have regard only to Australia's obligations under" the Convention. It was therefore framed in language very similar to that used in s. 13(1) of the World Heritage Act. Mason CJ and Brennan J said (at 293) that s. 18(1):

"should be understood as disentitling the plaintiff to refuse consent except when refusal is necessary for the protection of the heritage or otherwise for the satisfaction of Australia's obligations under the Convention".

Compare at 335, per Toohey J; at 348, per Gaudron J.

Clearly enough, the test suggested by Mason CJ and Brennan J in Richardson v Forestry Commission is less stringent than that proposed by Mason J in Tasmanian Dams (whose comments on this point were not referred to in the later case). This is because, on the construction adopted by Mason CJ and Brennan J, the Minister is bound to grant consent to the acts otherwise prohibited unless he or she determines that refusal is necessary to achieve the specified standard (namely, in the case of s.9(1), the protection, conservation and presentation of the relevant property).

Mr Hilton submitted that, whichever approach to s. 13(1) is correct as a matter of construction, the Minister in fact applied the more stringent test laid down by Mason J in Tasmanian Dams. This test was less favourable to Cardwell Properties, since it was less likely to result in the granting of consent to the actions otherwise prohibited by s.9(1). Mr Hilton pointed to the language used by the Minister in para.41 of the reasons, together
with the Minister's conduct in deferring the granting of consents in July 1996 until satisfied that adequate protective arrangements were in place as supporting this conclusion. Mr Tobias QC, who appeared with Dr Griffiths for the applicant, accepted that this submission was correct.

This is a matter of some importance. It means that the Minister, in determining whether or not to grant consents under s. 9(1), applied a test the correctness of which is not challenged. While the applicant contends that the Minister committed other errors of law, it is not suggested that he did otherwise than apply a test at least as stringent as that laid down by s.9(1). It is appropriate to bear in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The joint judgment (Brennan CJ, Toohey, McHugh and Gummow JJ), referred with approval (at 272) to the observation of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that the

"reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

Their Honours continued (at 272):

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin ((1990) 170 CLR 1, at 35-36):

"Minister can give or refuse consents. Can't put conditions on them".

There was no other evidence as to the advice given to the Minister. Nor was there evidence to explain why the Minister chose contractual terms rather than conditions imposed on the consents. The statement of reasons does not address these issues. In the absence of any other evidence, it seems to me that an inference must be drawn that the Minister received and acted upon the advice recorded in the minutes of the meeting of 16-17 July 1996. Compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 65-66, per Brennan J.

I do not, however, accept the second step in the applicant's argument. Mr Tobias referred to a line of authority in the High Court establishing the general proposition that, if power is given to make a by-law for the purpose of "prohibiting" an activity, the power will, in the absence of a contrary indication, enable the making of a by-law prohibiting the activity either absolutely or subject to a condition: Foley v Padley (1983) 154 CLR 349, at 358-359, per Gibbs CJ; at 380-383, per Dawson J; The Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126, at 134-135; per Knox CJ, Starke and Dixon JJ. These authorities explicitly recognise that, in the end, the question of construction will depend on the statutory language: see Country Roads Board v Neale, at 135; Foley v Padley, at 358.

In my view, the initial question is whether, as a matter of construction, the Minister's power to give consents under ss.9 and 10 authorises the Minister to give consent subject to conditions of the kind incorporated in the deed. I do not think that this question is resolved by the general proposition established by the High Court decisions. Unlike those authorities, the World Heritage Act does not confer on the Minister a power to prohibit particular activities by subordinate legislation. The Governor-General is empowered to declare by proclamation that s.9 applies to property which is being or is likely to be damaged or destroyed: s.6(3). The Governor-General may prescribe acts for the purpose of s.9: ss.9(1), 21(1)(a). Where an act is prescribed, as occurred in the present case with the making of reg.3F, s.9(1) makes it unlawful, except with the written consent of the Minister, to do that act. The prohibition is thus imposed by s. 9(1) itself rather than by subordinate legislation. The prohibition imposed by s.10(2) applies to the acts specified in that subsection, although the prohibition is attracted by a declaration, pursuant to s.7, that particular property is subject to s.10.

In my opinion, a number of factors point to the conclusion that neither s.9 nor s.10 of the World Heritage Act confers power on the Minister to grant consents subject to conditions. These factors are the following:

•Neither s.9 nor s.10 expressly confers such a power on the Minister. Had such a power been intended, it would have been easy to include it in the legislation.

•The World Heritage Act provides no explicit mechanism for enforcement of any conditions attached to a consent. It is true, as Mr Tobias pointed out, that the Court has jurisdiction under s.14(1) to grant an injunction restraining a person from "doing an act that is unlawful by virtue of" ss.9 or 10. But the act that is unlawful by virtue of s.9 is the prescribed act. The act that is unlawful by virtue of s.10 is any act specified in s.10(2)(d)-(m). The language used in s.14(1) is not apt to deal with an infringement of a condition attached to the grant of consent.

•The World Heritage Act addresses the scope of a consent given pursuant to s.9 or s.10, but does not suggest that a conditional consent can be given. Section 13(2) provides that a consent may relate to a particular act or acts, or a particular class or classes of acts. Had Parliament intended the Minister to have power to grant conditional consents, it might have been expected that s. 13 would have addressed the issue.

•Other provisions in the World Heritage Act appear to be framed on the basis that the Minister's power is either to give or refuse consent. Thus, the notice required by s. 13(4) must state "that the consent has or has not been given" and must "set out particulars of the act or acts to which the consent or the refusal to give the consent relates". Had a power to impose conditions been intended, it is curious, to say the least, that the notice required by s.13(4) need not include particulars of any conditions attached to the consents. See also s.13(3).

It is not surprising to find that the World Heritage Act does not provide for conditional consents. As Mr Hilton pointed out, the constitutional basis for the legislation prior to Tasmanian Dams was uncertain and a power to impose conditions on the consents would have exacerbated the constitutional uncertainty. The construction I have adopted is also consistent with the Minister having essentially a "means of protection of last resort", as the extract from the Second Reading Speech quoted earlier suggests. See also Mason J's reference to the "Minister's power of veto": Tasmanian Dams, at 146.

In view of this conclusion, I do not find it necessary to consider the third limb of the applicant's argument. In my opinion, no error of law has been shown by reason of the Minister acting on advice that he had no power to impose conditions on the consents granted under ss.9 and 10 of the World Heritage Act.

Mr Tobias put forward an alternative argument in the event that I concluded (as I have) that the Minister did not err by acting on advice that he could not give conditional consents. He contended that the Minister could not impose conditions "collaterally", by means of the deed. To do so amounted to an indirect attempt to do that which could not be done directly, namely, to impose conditions upon the consents.

This submission was not developed. It was therefore not made clear why the consequence of the argument, assuming it to be well-founded, was that the consents were liable to be set aside, as distinct from the "collateral" conditions being held invalid. In any event, I do not think the argument is sound.

The consents given by the Minister were not subject to any express conditions. There is no doubt that the execution of the deed of variation played an important part in the Minister's decision to give the consents. On 9 July 1996, the Minister agreed with the Secretary's recommendation that a decision should not be made on Cardwell Properties' application until he was satisfied, inter alia, that a deed had been entered into between Cardwell Properties and the Commonwealth covering such matters as best practice dredging and stabilisation of the foreshore. Nonetheless, at the time the consents were given by the Minister, the deed of variation had already been executed.

The deed, as varied, was enforceable by and against the parties to it on general law principles. As Mr Tobias pointed out when making his principal submissions, the legal effect of the deed was not the same as giving consents subject to conditions. Indeed, the gravamen of Mr Tobias' principal submission was that the Minister had incorrectly denied himself the opportunity to impose conditions on the consents.

The Minister, as he foreshadowed in July 1996, took into account the terms of the deed when giving the consents on 22 August 1996. The deed enabled him to be satisfied, inter alia, that the risk of damage to the World Heritage values of the proclaimed area was insignificant. But this does not mean that the deed of variation, already in place at the time the consents were given, was transferred into a condition, or series of conditions, ultra vires the World Heritage Act. If Cardwell Properties were to breach its obligations under the deed the Commonwealth would presumably have remedies under the deed, but the consents would not be affected. Nor could the remedies available under s. 14 of the World Heritage Act be invoked for breaches of the deed. In these circumstances, in my view, it cannot be said that the deed of variation amounted to an impermissible attempt to attach conditions to the giving of the consents.

Landscaping
The applicant contended that the Minister misdirected himself by failing to consider whether the presentation of the proclaimed area could be adversely affected by the buildings or structures proximate to that area. According to the applicant, the buildings to be erected on the development site would derogate from the World Heritage values of the proclaimed area. It was therefore necessary under s.13(1) of the World Heritage Act for the Minister to address the need for landscaping of the resort site, so as to minimise or eliminate that impact. Similarly, the applicant contended that the structures to be erected on the resort site would adversely affect the scenic features of nearby places on the Register of the National Estate. Section 3D(1) of the AHC Act required the Minister to consider the need for landscaping as a means of minimising the adverse effect on nearby National Estate areas. It will be seen that, although the applicant's written submissions suggested that this issue arose under s.30(1) of the AHC Act, the argument also invoked the provisions of the World Heritage Act.

At one stage in the argument, Mr Tobias seemed to suggest that the Minister had not given any consideration at all to the impact of the proposed resort on the scenic and wilderness values of the proclaimed area. This suggestion apparently flowed from the response of the DEST to a recommendation by the AHC that the deed should incorporate a provision requiring the landscaping of the Port Hinchinbrook development. The DEST did not support the recommendation, on the ground that the "scenic value is in Hinchinbrook Island and not the present site".

In fact, the uncontradicted evidence shows that the Minister did consider the impact of the resort on the aesthetic features of the proclaimed area. In the course of giving reasons for his decision under s.9(1) of the World Heritage Act, the Minister said this:

"37. To the extent that aesthetic features constitute a World Heritage value of the proclaimed area, and to the extent that the establishment of the resort itself might impact on such aesthetic features, I found that such impact would be insignificant, having regard to:

(a)the already degraded condition of the resort site;

(b)the previous extensive clearing of mangroves; and

(c)the restrictions imposed by the Deed on the height of the resort buildings.

I noted that the concerns had been raised about the need for landscaping of the resort site. I expected that this aspect would be adequately handled by the Queensland Government."

Similar conclusions were expressed in relation to the decision under s.10(1) of the World Heritage Act: para.51.

I do not think it is necessary to decide whether, or in what circumstances, the appearance of a place outside a proclaimed area affects the "presentation" of that area for the purposes of s.13(1) of the World Heritage Act: compare Tasmanian Dams, at 224, per Brennan J. Nor is it necessary to determine whether, or in what circumstances, the appearance of a place outside an area within a place within the National Estate adversely affects the National Estate, for the purposes of s.30(1) of the AHC Act. The fact is that the Minister did take into account the impact of the Port Hinchinbrook development on the aesthetic features of the proclaimed area and formed the view that the impact would be "insignificant". While this was expressed as a conclusion in relation to the World Heritage Act question, the conclusion was equally relevant to the issues said to arise under the AHC Act.

I do not think that the Minister's statement that he expected the landscaping of the resort to be adequately handled by the Queensland Government should be read as an assertion that landscaping was simply irrelevant to the questions to be decided. On the contrary, the Minister's expectation that this aspect could be handled by the Queensland Government reflected his view that any impact of the resort on World Heritage values of the proclaimed area would be insignificant. Accordingly, I think that this ground of attack on the Minister's decision fails.

Section 30 of the AHC Act and s.9 of the World Heritage Act
As the Minister's reasons show, he considered whether giving consents under s.10 of the World Heritage Act would have an adverse effect on the National Estate areas in the vicinity of the Port Hinchinbrook development. He also considered whether he could be satisfied of the matters specified in s.30(1) of the AHC Act, recognising that he had to be so satisfied before giving consent under s.10 of the World Heritage Act. However, the Minister did not consider separately the effect on the National Estate areas of giving consents under s.9 of the World Heritage Act. The applicant submitted that, by omitting to undertake the exercise in relation to the consents under s.9 of the World Heritage Act, the Minister erred.

The applicant's argument seems to assume that a failure by the Minister to comply with the directions in s.30(1) of the AHC Act vitiates consents granted by him under the World Heritage Act. It also assumes that the applicant has standing to challenge the validity of consents under the World Heritage Act, not by reason of a breach of that Act (for which standing is confined by s.14 of the World Heritage Act), but by reason of a breach of s.30(1) of the AHC Act. Each of these assumptions appears to be inconsistent with the reasoning of members of the Full Court in Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 (FCA/FC).

In that case, Lockhart J held (at 78) that s.30(1) of the AHC Act imposes a "public duty and is not owed to any particular person or persons". His Honour also pointed out (at 79) that the assertion of public rights and the prevention of public wrongs are the responsibility of the Attorney-General, proceeding either ex officio or at the relation of a private individual. Morling J expressed similar views (at 87-88). Pincus J expressly held (at 90-95) that, even if the Minister had breached s.30 of the AHC Act, the breach did not invalidate the relevant decision, which was the revocation of an order prohibiting acquisition of a particular property. His Honour posed the question this way (at 91-92):

"Looking at s.30 broadly, it is seen to be a provision controlling, in important respects, the procedure to be adopted within the national government when dealing with matters involving the national estate. The question is whether a licence or contract which is given or made by the Commonwealth in breach of s.30 is invalidated against the citizen, innocent of the breach, who has been granted the licence or with whom the contract has been made."

He answered that question in the negative.
Even if the breach of s.30(1) of the AHC Act could invalidate or lead to the setting aside of the consents under the World Heritage Act, other difficulties remain in the applicant's path. Section 30(1) of the AHC Act, the terms of which have been set out earlier, requires each Minister to give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him or her to ensure that the Department or authority does not take action that adversely affects, as part of the National Estate, a place that is in the Register, unless the Minister is satisfied of certain matters. Those matters are that

•there is no feasible and prudent alternative to the taking of the action; and

•all measures that can be reasonably be taken to minimise the adverse effect will be taken (see AHC Act, s.30(2)).

In addition, before the Minister takes any action that might significantly affect a place in the National Estate, the AHC must be informed of the proposed action and given an opportunity to comment: AHC Act, s.30(3).

The Minister specifically addressed the matters referred to in s.30 of the AHC Act in his reasons. He accepted the view of the AHC that giving consent to the proposed actions under s.10 of the World Heritage Act might adversely affect the three listed National Estate areas (the Cardwell Range-Herbert River Gorge area; the Wet Tropical Forest and the Great Barrier Reef region) (para.65). He also accepted the view of the AHC that, unless appropriate protective measures and management arrangements were put in place, the giving of consents under s.10 of the World Heritage Act could have certain adverse affects on National Estate values (para.66).

The Minister found that there were alternatives to the giving of consent. These were (para.68):

"(a)to refuse consent to the proposed actions;

(b)to refuse consent to the proposed dredging, thereby preventing the establishment of a marina; or

(c)to refuse consent to one or more of the proposed actions unless Cardwell agreed to reduce the size of the resort below the proposed 1500 beds."

He also found that, if consent was refused or if the size of the resort were reduced below the proposed 1,500 beds, Cardwell Properties would not proceed with the project. The Minister further found that the establishment of the resort would bring significant economic benefit to the region and that these would be lost if the resort did not proceed (para.70). Accordingly, he concluded that none of the alternative courses of action was feasible or prudent (para.71). Finally, the Minister found that the protective measures provided for in the revised beach and foreshore management plan and the deed as varied would minimise the adverse affects on the National Estate values in the immediate vicinity of the proposed resort (para.74).

In my view, s.30(1) of the AHC Act does not apply to a decision by the Minister to give or refuse consent to a prescribed act, pursuant to s.9 of the World Heritage Act. Section 13(1) of the World Heritage Act, which of course was enacted after the AHC Act, states that the Minister shall have regard only to the protection, conservation and presentation of the property to which s.9 of the World Heritage Act applies. It is clear - indeed it was common ground in this case - that s.13(1) does not permit the Minister to have regard to social and economic values in determining whether to give a consent under s.9(1) of the World Heritage Act. It would also seem clear that s.30(1) of the AHC Act does permit economic considerations to be taken into account by the Minister in determining whether he or she is satisfied of the matter specified in the sub-section. Mr Tobias did not suggest, for example, that it was not open to the Minister to take into account the economic and commercial benefits of the proposed resort, when determining whether any of the alternative courses of action was feasible or prudent.

In these circumstances, I do not think it is consistent with ss.9(1) and 13(1) of the World Heritage Act for the statutory duty imposed on the Minister by s.30(1) of the AHC Act to apply to a decision by the Minister to grant or refuse consent under s.9(1) of the World Heritage Act. The World Heritage Act applies to property that has been proclaimed because the Governor-General is satisfied under s.6(3) of the Act that the property is likely to be damaged or destroyed. Any prescribed act in relation to that property is unlawful, except with the Minister's consent.
In giving or refusing consent the only matters that the Minister may take into account are the "protection, conservation and presentation, within the meaning of the Convention, of the property". If s.30(1) of the AHC Act were to apply to the decision under s.9(1) of the World Heritage Act, the Minister would be required to have regard to considerations that s.13(1) does not permit to be taken into account in the making of the decision under s.9(1) of the World Heritage Act. The criteria specified in ss.9(1) and 13(1) of the World Heritage Act are, if anything, more protective of the environmental integrity of the proclaimed property than the criteria specified in s.30 of the AHC Act. It seems to me, therefore, that the Minister cannot be required by s.30(1) of the AHC Act, consistently with the terms of ss.9(1) and 13(1) of the World Heritage Act, to give directions in relation to property to which s.9 of the World Heritage Act applies. It follows that s.30(1) of the AHC Act (which only imposes a duty "consistently with other laws") does not apply to the Minister's consideration of whether consent should be given under s.9(1) of the World Heritage Act.

In any event, I find it hard to see how, even if s.30(1) of the AHC Act applied to the decision under s.9(1) of the World Heritage Act, this could have led the Minister in the present case to reach a different conclusion. The consents under ss.9 and 10 of the World Heritage Act, insofar as they relate to the proposed dredging of the channel, for practical purposes cover the same activities. If the Minister were to consider the matters specified in s.30(1) of the AHC Act in relation to the giving of consent under s.9(1) of the World Heritage Act, it is inevitable that he would reach the same conclusion as in relation to the giving of consent under s.10 of the World Heritage Act. In other words, he would be addressing precisely the same issues as those he has already addressed and referred to in his statement of reasons.

Section 9 Consents and Social and Economic Values
The starting point for this submission by the applicant was the proposition, which was common ground among the parties, that s.13(1) of the World Heritage Act prevented the Minister from having regard to social and economic values in deciding to give consents under s.9(1) of the Act. The only considerations to which he could lawfully have regard were the protection, conservation and presentation of the proclaimed area. The applicant submitted that, in deciding to give consents under s.9(1), the Minister had in fact taken into account social and economic values. This followed from the Terms of Reference for the regional coastal management plan, attached to the MOU, which expressly included among the values which had to be addressed "social and economic values".

Some further background is helpful in relation to this submission. On 11 June 1996, Mr Toyne of DEST wrote to his Queensland counterpart expressing the Commonwealth's keenness to

"help progress and facilitate management planning for the Hinchinbrook region, particularly to ensure that the Great Barrier Reef's World Heritage values are protected."

The letter expressed the Commonwealth's preference for a management plan covering the Hinchinbrook region, including Hinchinbrook Island and Channel, two islands near Hinchinbrook Island and the adjacent coastal strip. The letter suggested broad objectives for the plan which, with minor changes, were later adopted in cl. 2.1 of the MOU. It also formulated the values which needed to be addressed in the plan in terms adopted in cl.2.2 of the MOU.

On 13 June 1996, the Acting Director-General of the Queensland Department of Environment replied. The reply accepted the "planning process" outlined in Mr Toyne's letter, but noted that the details of the process would have to comply with Queensland legislation. The reply included the following paragraph.

"The values and activities to be addressed in the plan are agreed in principle provided that the list of values be amended to include social and economic values and the level of detail assigned to each of these will be an issue for the steering committee. In particular, I note that it is impractical to specifically consider existing harbour and port operations. Existing environmental management plans being prepared for each port should provide adequate detail in this regard."

Following this correspondence, the draft Terms of Reference for the Cardwell/Hinchinbrook regional coastal management plan incorporated a reference to "social and economic values". The Terms of Reference attached to the MOU incorporated the same reference.

The applicant's argument, at first glance, is attractive. If the Minister was foreclosed from having regard to social and economic values in giving consent under s.9(1) of the World Heritage Act, how could he place reliance on the proposed regional management plan as a means of overcoming the potential adverse impacts upon the proclaimed area, given that the Terms of Reference included social and economic values?

On closer analysis, I do not think this argument is persuasive. The Minister specifically stated (para.39 of his reasons) that in determining whether to give consents under s.9(1) of the Act he had regard only to the protection, conservation and presentation of the proclaimed area. One of the factors he had to take into account (as he said he had) was the proposed regional plan, including the statement of values which had to be addressed in formulating the plan. The conclusion he reached, expressed in para.41 of his reasons, was that the potential impacts would be limited and ameliorated by the protective measures provided for in the revised Beach and Foreshore Management Plan, the deed and the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation of the proclaimed area to give the consents sought.

In reaching this conclusion, the Minister had to weigh up a number of considerations. In assessing the significance of the proposed regional plan for the protection, conservation and presentation of the proclaimed area he had to take into account the fact that the values to be addressed in the plan included social and economic values. Doubtless this created a risk that the regional plan, as ultimately implemented, would not solely reflect World Heritage values. But the Minister was also entitled to take into account the terms of the deed, which (as the statement of reasons indicates) provided for steps to minimise the impacts in the proclaimed area in Hinchinbrook Channel of dredging the marina access channel and of actions relating to the mangroves. He was also entitled to take into account that the proposed regional plan was not confined to the proclaimed area of Hinchinbrook Channel, but included islands and areas of the mainland. Thus, the inclusion of social and economic values in the Terms of Reference did not necessarily mean that those values would be reflected in the plan as it applied to or affected the proclaimed area. See also cl.3.3 of the MOU.

In my view, the inclusion of social and economic values in the Terms of Reference does not imply that the Minister took into account social and economic values in giving the consents under s.9 of the World Heritage Act. There is no basis for concluding that the Minister did anything other than what he said he did, namely, apply the criteria specified in s.13(1) of the Act.

Decisions Under ss.9 and 10 of the World Heritage Act
The applicant advanced a separate submission that, despite the Minister's assertion in his statement of reasons that he had not taken into account social and economic factors when giving consents under s.9 of the World Heritage Act, it should be inferred that he had in fact done so. It was said that it was wholly unrealistic for the Minister to purport to take into account social and economic factors when making a decision under s.10 of the Act, but to profess to ignore those matters when making a decision under s.9. The consents related to the same activities at the same locations and the terms of the consents were identical. It was therefore artificial to suggest that in practice a distinction was drawn between the two sets of decisions.

No doubt the reasons given by a decision-maker are not necessarily conclusive of all the factors taken into account in making a decision. In Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 (FCA/Toohey J), Toohey J summarised the approach to be taken as follows (at 184):

"In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was."

See also Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (FCA/Sheppard J), at 13-15; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1994) 34
ALD 169 (FCA/Burchett J), at 178-179.

In this case, I see no reason to conclude that the Minister did not do what he said he did. The advice given to him, especially on 14 August 1996, was precise in its insistence that he could consider, in relation to the decision under s.9, only the evidence relevant to the protection, conservation and presentation of the World Heritage property. The advice made it clear that social and economic impacts could be considered under s.10, but not under s.9. The Minister's statement of reasons reflect the advice given to him. The reasons contain a detailed explanation of the Minister's reasoning process that is consistent with him having applied different criteria in making the decisions under ss.9 and 10, respectively. The mere fact that the Minister ultimately decided to give consents under both sections does not demonstrate, or even suggest, that he failed to understand or apply correctly the approach which he had earlier formulated.

Mr Tobias referred to other factors suggesting that the Minister wrongly considered social and economic factors when giving consents under s.9. In my opinion, none of them supports the applicant's contentions. For example, it was said that the giving of consents to the coppicing of the mangroves demonstrates that the Minister took account of the developer's economic interests and concessions made by the developer on such matters as the height of the development. As I have said, the question facing the Minister was whether the giving of the consents was
consistent with the protection, conservation and presentation of the proclaimed area on Hinchinbrook Channel. The Minister formed the view that the consents were consistent with these values. The fact that other decision-makers might well have reached a different conclusion does not show that the Minister, notwithstanding his unequivocal statements to the contrary, took into account the developer's commercial interests or the concessions previously made. In my opinion, a consideration of the reasons for the decision, the advice given to the Minister and the documentary evidence does not warrant a finding that the Minister did not accurately record the reasoning process that led to the giving of the consents.

The Precautionary Principle
The applicant submitted that the Minister failed to have regard to a relevant consideration, namely, the "precautionary principle", when dealing with the sensitive heritage and environmental issues presented by Cardwell Properties' applications. Mr Tobias accepted that neither the World Heritage Act nor the Convention referred to the precautionary principle, but it had been enshrined in the 1992 Inter-Governmental Agreement on the Environment, to which the Commonwealth, the States, the Northern Territory and the Australian Local Government Association were parties. He contended that, in the light of the scope and purpose of the World Heritage Act, the Minister was bound to have regard to the precautionary principle when exercising powers under that Act. He also submitted that it should be inferred from the absence of any mention of the
precautionary principle in the Minister's reasons that he failed to take it into account in making his decision.

As Stein J pointed out in Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 (NSW LEC), at 281-282, the precautionary principle has been referred to since the 1970s, but has only recently received international endorsement. Commentators have noted that the principle has been formulated in different ways in international agreements and that there is not yet an international consensus on the principle: P W Birnie and A E Boyle, International Law and the Environment (1992), at 97-98. The 1992 Convention on Biological Diversity, which Australia has ratified, states the principle as follows:

"...where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat."

The 1992 Intergovernmental Agreement on the Environment employs an expanded formulation (para.3.51):

"In the application of the precautionary principle public and private decisions should be guided by:

(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

an assessment of the risk weighed consequences of various options."

In Leatch v NPWS, Stein J (at 212) commented that

"the precautionary principle is a statement of commonsense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious."

I do not think that the precautionary principle in the form adopted by the 1992 Intergovernmental Agreement (nine years after the enactment of the World Heritage Act), is a relevant consideration that the Minister is bound to take into account in exercising the powers conferred by the World Heritage Act. There is nothing to suggest that in 1983 any particular formulation of the precautionary principle commanded international approval, let alone endorsement by the Parliament. It may be that the "commonsense principle" identified by Stein J is one to which the Minister must have regard. But this would flow from the proper construction of the relevant legislation and of its scope and purpose, rather than the adoption by representatives of Australian governments of policies and objectives relevant to a national strategy on the environment: compare Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397 (NSW LEC/Talbot J), at 419. It would be difficult, for example, for the Minister to have regard only to the protection, conservation and presentation of particular property, as required by s.13(1) of the World Heritage Act, unless he or she takes account of the prospect of serious and irreversible harm to the property in circumstances where scientific opinion is uncertain or in conflict.

To the extent that the Minister was required to take account of the need to exercise caution on the fact of scientific uncertainty, in my opinion he did so. There was a great deal of scientific material available to the Minister assessing the risks of the activities requiring Ministerial consent, much of which was summarised in a report by Dr R Reichelt of the Australian Institute of Marine Science. The Minister had before him a good deal of material suggesting a "cautious" approach to the exercise of power under the World Heritage Act. The advice provided to the Minister in July 1996 stated that, in considering whether each activity for which consent was sought was consistent with the protection, conservation and presentation of the proclaimed area, he was "entitled to be cautious". The Minister also had available the previous Minister's reasons, given on 15 September 1995, which explicitly stated that the "Precautionary Principle...suggests a cautious approach be adopted" where it cannot be concluded with certainty whether or not World Heritage values will be damaged. The AHC had argued that the uncertainty of the long term impacts of dredging "strengthen[ed] the case for a precautionary approach".

It is true that the Minister did not expressly refer to the precautionary principle or some variation of it, in his reasons. But it is equally clear that before making a final decision, he took steps to put in place arrangements designed to address the matters of concern identified in the scientific reports and other material available to him. The implementation of these arrangements, through the amended deed and the MOU, indicate that the Minister accepted that he should act cautiously in assessing and addressing the risks to World Heritage values. This is not to say that the Minister's assessment would be endorsed by all who made submissions and provided advice; clearly it would not. But he took into account the commonsense principle that caution should be exercised where scientific opinion is divided or scientific information is incomplete.

Unreasonableness and s.30 of the AHC Act
The applicant submitted that the Minister had acted unreasonably in expressing himself satisfied that there was no feasible and prudent alternative to granting the consents and that all measures that could reasonably be taken to minimise the adverse effect on the National Estate would be taken. It was submitted, without elaboration, that the Minister could and should have required Cardwell Properties to submit a documented economic appraisal of the viability of the alternative options. Further, the Minister should not have relied on the "bare assertions" of Cardwell Properties that it would not proceed with the project if the sale were reduced to fewer than 1,500 beds. It followed that he had failed to give genuine consideration to the alternatives.

I have already referred to the flaw in the assumption that a breach of s.30(1) of the AHC Act would vitiate the consents granted by the Minister. In any event, as Davies J observed in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, at 76, the question of what was a prudent and feasible alternative, was a matter of value judgment and that judgment was reposed in the Minister. See also Minister for Immigration v Wu, at 493-494; Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 (FCA/FC), at 679-680. The Minister was entitled, although not bound, to accept the assertions made by Cardwell Properties as to the minimum requirements that had to be met before the proposed resort would proceed. This was not a case where the Minister was bound to make further inquiries to ascertain that he had been told about Cardwell Properties' intentions was accurate or otherwise: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 321, per McHugh J. As far as the evidence shows, information provided was plausible and there was nothing to suggest that it was false or misleading.

CONCLUSION

In my opinion, none of the grounds advanced for challenging the Minister's decision to give consents under the World Heritage Act has been made out. Accordingly, the application should be dismissed. Subject to any submissions to the contrary, there would seem to be no need for further orders, since the undertakings given will expire once judgment is given. I shall give the parties the opportunity to make submissions on costs.

I certify that this and the preceding 103 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 14 February, 1997

Heard:16 December, 1996

Place: Sydney

Decision:14 February, 1997

Appearances: Mr M.H. Tobias QC and Dr J. Griffiths, instructed by the Environmental Defender's Office, appeared for the applicant.

Mr J.S. Hilton SC and Mr I.D. Faulkner, instructed by the Australian Government Solicitor, appeared for the first respondent.

Mr S.M. Gorry, Solicitor of Henry Davis York, agent for Hopgood & Ganim, appeared for the second respondent.

Ms D.A. Mullins and Mr E.K. Christie, instructed by the Crown Solicitor for the State of Queensland, appeared for the third respondent.

[1997] FCA 55

14 FEBRUARY 1997