Friends of Leadbeater's Possum Inc v VicForests

[2021] HCATrans 215

[2021] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M37 of 2021

B e t w e e n -

FRIENDS OF LEADBEATER’S POSSUM INC

Applicant

and

VICFORESTS

Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 DECEMBER 2021, AT 9.30 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR J.K. KIRK, SC appears with MS J.D. WATSON and MR P.D. COLERIDGE for the applicant.  (instructed by Environmental Justice Australia)

MR B.W. WALKER, SC appears with MR I.G. WALLER, QC and MR H.L. REDD for the respondent.  (instructed by Baker & McKenzie).

KIEFEL CJ:   Yes, Mr Kirk.

MR KIRK:   May it please the Court.  Can I start with some context, your Honours, briefly.  As you would well appreciate, the EPBC Act protects aspects of the environment of national significance.  This case concerns the legality of timber harvesting and clearing by the respondent in the Central Highlands, just north east of Melbourne, specifically as regards its effects on two species, Leadbeater’s Possum and the Greater Glider.

By way of context, Leadbeater’s Possums are one of nine species which have been listed under the EPBC Act as critically endangered, that is to say, they are a species facing an extremely high risk of extinction in the immediate future.  At the time of trial, it was estimated that there were some two and a half thousand to 10,000 Leadbeater’s Possums left in Australia.  The Greater Glider is a large possum.  It has the ability to glide some 100 metres through the air, and it is listed as a vulnerable species, that is to say, it has been assessed as facing a high risk of extinction in the wild in the medium‑term future. 

For both species, a major threat to their existence is human destruction of their habitat.  Having been listed under the EPBC Act both species were protected under that federal Act.  The issue in this case was whether VicForests took sufficient steps to seek to protect those…..comply with its various legal obligations in relation to the habitat of those species in the Central Highlands region.  The applicant succeeded at trial in obtaining declaratory and interlocutory relief.  On appeal, VicForests raised numerous issues.  It lost or withdrew on all but one ground, which is a confined issue of statutory construction.  That issue is the subject of this application.

Can I take your Honours directly to the relevant section.  It is in volume 2 of the application book at page 813, being section 38(1) of the EPBC Act.  It is not a long section, as your Honours can see.  The competing constructions are as follows.  The construction put originally by the Commonwealth and Victoria before Justice Mortimer, and accepted by her Honour, was that what it means is an RFA forestry operation is undertaken in accordance with an RFA if it is undertaken in conformity, compliance or consistently with the RFA, that is to say with any conditions, restrictions, limits or prescriptions of an RFA that regulate the conduct of regional forestry operations, and that is the construction we are here to advocate.

The construction adopted by the Full Court, for example, without going to it at paragraph 116, is that an RFA forestry operation is undertaken in accordance with an RFA if it is conducted in a region covered by an RFA where those operations are not prohibited by the RFA.  In other words, it is fundamentally a geographic focus in the way that the Full Court put it.  I will seek to come back to some problems that we put in relation to that focus.

The starting point, of course, must be the text.  In our respectful submission, to act “in accordance with an RFA” means to act consistently with it.  The respondent implicitly accepts that its construction is not consistent with the ordinary meaning of the words.

KEANE J:   Mr Kirk, your submission is that “in accordance with an RFA” in this context means in accordance with the requirements of an RFA?

MR KIRK:   Correct.  The subject of the provision is an RFA forestry operation.  So, Part 3 of the Act, which has various prohibitions, does not apply to an RFA forestry operation and, per subsection (2), you will see that that is defined as per the RFA Act.  The relevant provision, your Honours, is at page 820 – this is of the RFA Act 2002 and your Honours will see there, about halfway down the page, it says:

RFA forestry operations means -

and there are four substantially identical paragraphs.  The relevant one for us is (b).  So, it means “forestry operations”.  Now, just pausing there, “forestry operations” is actually defined under the relevant RFA, but the notion is pretty simple, it means:

(a)      the planting of trees; or

(b)      the managing of trees . . . 

(c)      the harvesting of Forest Products -

for commercial purposes.  So again, just pausing there, “forestry operations”, unsurprisingly, are doing things.  These are actions.  It is the doing of those things which is the subject of section 38 and conditioned by the requirement to act in accordance with the RFA.  So, put simply, it is when you do these things that you must act in accordance with the RFA.  Now, then going on in the definition, and skipping over the first set of brackets, it says:

Forestry operations . . . that are conducted in relation to land in a region covered by the RFA ‑

Again, pausing there I will come back to the second set of brackets.  That identifies the area, the region, the geographic space where forestry operations are conducted.  That means the identification of geography is done by the words “RFA forestry operation” in this definition, as picked up back in section 38.  So, if your Honours go back to section 38, your Honours might keep a hand on 820 as well – so back at page 813 – the effect of the Full Court’s construction is that one could delete the words after “RFA forestry operation”, so, delete all words saying:

that is undertaken in accordance with an RFA.

That would have the same effect as the Full Court’s construction because it would then say:

Part 3 does not apply to an RFA forestry operation –

What is an RFA forestry operation?  It is a forestry operation undertaken in a geographic space.  The Full Court’s construction thus renders half of this section superfluous or, put another way, tautological, because it picks up the geographic notion from the definition in the RFA Forestry Act.  Now, the Full Court’s answer to that was to say that, and this is without going to it - paragraph 118, the words in the second part of the subsection, in accordance with an RFA, are shorthand for the list of features required for an agreement to meet the definition of an RFA.  If your Honours go back to 820 within the RFA Act, you will recall that it means:

RFA forestry operations means:

(a)forestry operations . . . conducted in relation to land in a region covered by the RFA –

An acronym.  What does the acronym mean?  It is defined on the previous page in the same section, section 4, of the RFA Act, and there are various criteria which must be met to be an RFA.  So, the Full Court’s answer, with respect, is not correct because all of the identification of what an RFA is, is done by a combination of the definition of “RFA forestry operations” which uses the acronym RFA, which is defined in turn in section 4. 

So, our first primary textual point is about superfluity and tautology.  But secondly, there is a core problem, in our respectful submission, with this notion of prohibition that the Full Court adopted.  Can I take your Honours to the judgment at page 736 in volume 2, paragraph 129.  About five lines in, their Honours say:

Consistent with the reasoning above, “land in a region covered by the RFA –

So, this is referring to the definition in the RFA Act:

means land on which forestry operations are permitted by an RFA, even if the permission is conditional.  That is to say, a contravention of a condition of permissibility . . . does not mean that the operation is prohibited –

So, their Honours have a fairly black and white view.  It is either prohibited, in which case you cannot do it, it is a geographic notion, but any kind of conditions on what you do are not encompassed.

That does not work ‑ that attempt at certainty which the Full Court is seeking is a mirage, in our respectful submission.  To illustrate why, can I take your Honours to application book 1, page 61 – this is in Justice Mortimer’s separate question reasons – paragraph 178, on page 61.  This is describing an aspect of the Central Highlands RFA.  All of the RFAs have a – a co‑ordination in them is the CAR Reserve System – that is to say, comprehensive, adequate and representative reserve system.  At 178 some of the criteria for the reserve system is set out.  Can I draw attention to subsection iii:

Values protected by Prescription.  This comprises those elements of SPZ –

Special Protection Zone:

protected by regional prescriptions, including stream buffers and rainforest with a surrounding buffer.

Can I then invite your Honours to read paragraph 180?  What that shows is that it is not as though this is a simple matter of a preordained matter.  You need to have an understanding of what is on the ground – of what is rainforest, what is not – you need to have a buffer around it.  The certainty that the Full Court seeks is thus a mirage.

Can I then make a further and related point?  Within that volume, can your Honours jump to page 489 within her Honour’s primary judgment, paragraph 1250.  There are a whole series of contraventions my client made out of various restrictions, and this is one of them.  If your Honours just look at the bottom of the page, the last sentence, there is a reference to part of the relevant instruments:

an SPZ must have a “200 m radius centred on each verified Leadbeater’s Possum colony”.

The Full Court, by its finding, found that all these sorts of requirements are outside their notion.  We would respectfully ask why?  Even on a geographic approach, why is that not a geographic notion?  Similarly, if your Honours turn to page 494, paragraph 1263 – just to give another example of one of the prescriptions – the indented quote beginning “Screen timber harvesting”.  Again, it is fundamentally geographic, but it is geographic in the sense of you need to have a sense of the environment of the actual place.  Again, it is hard to see, with respect, why that would not be covered by a geographic notion, yet their Honours held that it was not.

More generally about this notion there is a juridical problem, in a sense.  The distinction between a prohibition on the one hand and restrictions, limits, proscriptions, et cetera, on the other hand, is unsound in that a restriction is a conditional prohibition - you shall not do X if Y.  All of that may be contrasted with her Honour’s construction, which is very simple, you are free from Part 3 under section 38, free from the federal restrictions, so long as you act in accordance with the RFA in conducting your forestry operations.

That leads to our ground 2, if I can make a brief point about that.  If your Honours can go back to the second application book, and page 820.  I said I would come back to the words in the second parenthesis, so this is the definition of “RFA forestry operations”, and the words at the end in (b) are:

(being land where those operations are not prohibited by the RFA) –

The same question arises, why are not the sorts of things I have just shown your Honours prohibitions captured by that such that if it is land where those operations are prohibited, then you are not within the definition of “RFA forestry operations”.  It is a similar way to the same construction that we advocate. 

Now, against our construction, their Honours were moved by two important considerations, for their Honours:  one, some contextual matters, and two, some consequential matters.  Can I deal with those in turn?  First with contexts, can your Honours go, please, to page 813 of the second application book, so this is sections 39 to 41, starting with section 39, which is just a statement of object:

The purpose of this Subdivision is to ensure that an approval under Part 9 is not required for forestry operations in a region for which a process –

and your Honours can skip over the brackets to the end of the third‑last line:

of developing and negotiating a regional forest agreement is being, or has been, carried on.

So, put simply, did not have to comply with the relevant provisions if you were in the process of negotiating an RFA, and the Full Court relied on this at paragraph 116.  Particularly, they relied on the reference to “region”, in the second line, but to make my first point about that, if your Honours jump to page 815, section 41, there is a very clear description of the regions that they mean.  They are the regions where – which does not include the Central Highlands, by the way – the process of negotiation was underway. 

We would respectfully submit that is contrary to their Honours’ construction, because it shows where geography was meant, it was carefully delineated.  Their Honours’ next point was about section 40(1).  Your Honours will see:

A person may undertake –

consistently with the object:

operations in an RFA region . . . without approval under Part 9 . . . if there is not a regional forest agreement in force for any of the region.

So, for these identified regions where an RFA was being negotiated, you did not have to comply with Part 9.  VicForests submitted, their Honours accepted, well, it would be very strange if you are completely off the hook whilst it is being negotiated and that should lead to a broader construction of section 38.

The point we made below and here is that there were interim protections in place – it is not necessary to worry about the detail because VicForests accepts that in its special leave response at paragraph 13.  VicForests says, well the process may never have been completed, there may never have been an RFA achieved.  Possibly, but under subsection (4), the Minister could then declare that subsection (1) does not apply, thus bringing the Act back into operation.  It was a flexible process to enable evolution of the times.  Can I deal also with the consequential argument?

KEANE J:   Mr Kirk, could I just interrupt you?  Before you go on to your consequential arguments – or perhaps it is part of them ‑ looking at paragraph 115 of the Full Court’s reasons at pages 731 to 732, what do you say is wrong about that?

MR KIRK:   That is the argument I have just been seeking to address.  Their Honours said it would be a “curious” operation if:

less stringent environmental controls -

The point we were making is that they were interim controls in place, whilst there was being a negotiation.  Plainly, the Commonwealth foresaw the negotiations would be successful.  If they were not, it was the subsection (4) mechanism to bring the Act back into operation.  So, it was an interim regime.

The other point I would make about it is that, even at its highest, your Honours, let it be said, contrary to what I have just said, that is a point weighing against me.  All right, there is a point weighing against me.  There is almost no textual foundation, in our respectful submission, for the Full Court’s construction, which my friend implicitly accepts is contrary to the ordinary meaning.  So, there are factors pulling in different ways.  It cannot possibly be said ‑ ‑ ‑

KEANE J:   Well, except in relation to that there is the textual – the observance in the text of a difference between “in accordance with” and “pursuant to the requirements of” in the various provisions of the Act.

MR KIRK:   Is your Honour referring, for example, to 37M and those sorts of ‑ ‑ ‑

KEANE J:   Yes.

MR KIRK:   Let me turn to that.  That is at page 812.  There in 37M(c) it does talk about “in accordance with the conditions”.  Okay, true, it has been spelt out.  It was a provision introduced at a different time by a different drafter.  It is dealing with, if your Honours look at subparagraph (a):

a class of actions declared in a conservation agreement -

So, for that issue, the drafter thought it necessary to spell it out more clearly at a different time.  Another section relied on was section 29.  If your Honours go back to 808, that is another thing the Full Court referred to – it is another one of these exemptions.  Without getting involved in detail, the key words are subparagraph (e):

the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process.

So, governments could agree processes.  It is not clear to us, with respect, why that is inconsistent with our construction.  Why does it not raise the same sort of question about meaning “acting in compliance with the arrangement or process”?

Finally, and briefly, your Honours, as to why leave should be granted, at highest against us there are factors pulling either way, but it is certainly reasonably arguable and, with respect, it is important.  It is important to not only to these two species, not only this particular RFA, but there are 10 RFAs in operation in four States throughout Australia.

As we note in our written submissions, in the 21 years of operation of the EPBC Act, this Court has never heard a case arising under this Act.  As we also note in our written submissions, quoting Minister Kemp, it was meant to be a significant environmental reform for matters of national environmental significance.  It has not really worked out that way.  In our respectful submission, this case is an appropriate vehicle to deal with an important point and we submit that leave should be granted.  May it please the Court.

KIEFEL CJ:   Yes, thank you Mr Kirk.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  It does seem to be considerable common ground that there was a constructional choice.  What is not so clear is whether there is any familiar or straightforwardly‑understood catalogue of errors of method said by the applicant to have been committed by the Full Court.  In our submission, it is evident from the way in which their Honours directed themselves concerning the applicable principles and the air with which their Honours addressed the text to be construed, including its immediate context within the statute, that there was no such error of method.

It means that the argument for which special leave is sought is an argument which does not differ in any respect from the way in which matters were marshalled in the Full Court below.  That is not, in our submission, a hallmark of a case for special leave to appeal in relation to statutory interpretation in the absence of some widespread ramifications or other implications of the particular statute in operation. 

Now, my learned friend’s last comment concerning, as it were, the court not having given consideration to the statute as a whole simply does not answer that proposition.  The RFAs are a particular Australian federal attempt to address questions of regulation, including for the protection of environmental values, of an important industry.

There is nothing in that proposition that renders it of the kind of general public importance that would render what is, after all, a matter of statutory interpretation appropriate to be simply revisited as if it were, frankly, an appeal by way of rehearing in this Court. 

Rather, in our submission, what can be seen as a matter of looking ahead to the putative prospects of any such appeal, is that in the identification of error, a purposive approach plainly and correctly permeates the conclusion of the Full Court below in this sense.  A glance at section 38 reveals two things - what it does not do, that is, stipulate full compliance with conditions or requirements, so‑called, in an RFA; and what it does do, that is, to signify or identify cases where Part 3 of the Act applies or not.

The application of those provisions will carry in its train, depending upon conduct, facts and value judgments in a court, that is, judgments about which reasonable minds might differ until the notional jury delivers a conclusion, it brings in its train criminal consequences, penal sanctions.  In short, there is every reason why a premium value should be attached to the purpose of section 38 to indicate what will be the governing regime, and when I say “the governing regime” I mean whether Part 3 applies or not.

It is for those reasons, in our submission, that consideration of the immediate, not remote, consequences of the reading unsuccessfully sought to be defended below should indicate to this Court in a special leave application that there are insufficient prospects of success in demonstrating error in the decisions and the reasons towards their Honours’ conclusion below.

In a nutshell, it comes down to this.  The import of the argument or, as we would put it, reading in the notion of the requirements or conditions after the expression “in accordance with” amounts to saying that the RFA, not Part 3, will govern until it is breached, an outcome which is devoid of any statutory indication as to whether some problematic doctrine of substantial compliance would prevent arguable cases that may go through two stages of litigation before one knows whether Part 3 applies or not.

It is for those reasons, in our submission, that the notion which was carefully considered in the Full Court, and rejected, of Part 3 applying as soon as and whenever there is any adjudicated departure from and RFA, should be rejected.  Now, when I say, “departure from an RFA”, I mean departure from terms, or failure to comply fully with terms, of an RFA that governs.  We know that RFAs govern, first of all, geographically.  That, too, is now common ground.

KIEFEL CJ:   Mr Walker, what is the consequence of a departure or breach of an RFA under the RFA Act?

MR WALKER:   Eventually, your Honour, there can be a termination of the RFA, which is a very powerful sanction, and for obvious reasons, but that is done with clarity brought by the administrative or executive process.  The reading of 38, which is to be essayed by the applicant in any appeal, is one which will happen absent executive decision-making any policy weighing up of the nature and consequences of an alleged shortcoming under an RFA.  It will simply have happened, and it will be, of course, in nearly every case that is imaginable, only known retrospectively, whereas, the ministerial decision to terminate an RFA, of course, is one that proceeds ultimately with transparency and prospectively only.

It is for those reasons that insofar as the purpose of designating which regime is to govern can be seen in section 38 – as we earnestly submit is self‑evident – would be entirely defeated by the argument sought to be marshalled against us.

Our learned friend drew attention to aspects of the available regimes – such as special protection zones or sensitive landscape features – by referring, in her Honour’s reasons below, at first instance, paragraphs 180, 1263 to 1264.  I do not need to take you back to them.  They are, with respect – not only as their designations rather suggest, but also as the statutory provisions show – matters about which appropriately value‑laden and contestable judgments would require to be made in any litigation concerning their application, that is, concerning alleged departure from them.  They are, in our submission, rather solid indications of the anti‑purposive effect – if the purpose be designation of a governing regime – to which I have earlier referred.

By contrast, of course – as, again, my learned friend has drawn to attention – the provisions with respect to RFAs of subsection (4) of section 40 – the ministerial declaration of non‑application that my learned friend describes as flexible, we would describe somewhat differently, namely, by contrast with the operation of section 38 and the expression “in accordance with an RFA”.  The ministerial declaration of a non‑application does not admit of argument, factually, as to whether it exists, let alone as to its terms.  It does not admit of any fraught or problematic consequence of criminal liability made known only retrospectively, rather than prospectively.

It is for those reasons, in our submission, that that too is an example from the broader context for the reading of section 38 – that the bright line that becomes available with the Full Court’s reasoning is destroyed by the

argument proposed to be mounted on an appeal with consequences for the prospects, we respectfully submit, of that appeal and, thus, in favour of a refusal of special leave.

Your Honours, we have already drawn to attention in writing, but we need to emphasise that geography is not mere geography.  Once one knows the area to which an RFA applies, then one knows, with respect, by reason of section 38, where Part 3 is not the governing regime – but rather the RFA, subject to the possibilities under section 40, for example. 

It is for those reasons that when one looks at the other contextual matters to which my learned friend referred – that is, pending negotiations, what my friend called the interim position, that the anomaly identified by the Full Court also appears so as to expose the anti‑purposive nature of the argument proposed against us, that is, that there would be clear non‑application of Part 3 before an RFA is negotiated, but thereafter the obscurity of only retrospectively‑determined factual conclusions of a value judgment kind, by reason of the interpretation our learned friend proposes.

That, in our submission, is another weight indication of a scheme which is satisfying and fulfils an evident purpose, by reason of the Full Court’s interpretation, and one which, frankly, does not appear to be much of a scheme at all, under the argument sought to be raised against us.  But, of course, one sees from the definition in section 4 of the RFA Act itself, to which your Honours’ attention has been drawn, that it is simply not correct to say, as has been written against us in this application, that the word “region” is not to be found in section 38.

The short, I fear somewhat tart response is, yes, it is, when, as one is required to do, you read in the definition of an RFA found in section 4 of that Act, which, of course, as my friend correctly points out for other purposes, is entirely posited on the identification geographically of a region – and by that name, region. 

It is for those reasons, in our submission, that by reason of the nature of the nature of the considerations given by the Full Court to all the matters calling for their attention in an interpretive choice – and the, in our submission, appropriate outcome – that there is no call for a grant of special leave in this case.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Walker.  Any reply, Mr Kirk?

MR KIRK:   Yes, thank you, your Honours, briefly.  Can I start with the point my learned friend left off on, because we embrace it.  My friend said, textually, that we could not say there is no reference to “region” within section 38, and he says it because it is picked up by the definition of “RFA forestry operations”.  We absolutely agree.  But the definition of “RFA forestry operations” does pick up the notion of region, and that definition is picked up by the first half of section 38(1).

My learned friend palpably has not attempted to answer, but rather has illustrated the point we have made about tautology or redundancy.  My learned friend referred to there being a bright line in relation to geography, but my learned friend, with respect, did not actually seek to answer the submissions we have made to show that in fact there is not a bright line in practice, nor did he seek to answer the fact that in our submission the attempted distinction between prohibitions and restrictions is not a clear one, and indeed is juridically suspect.

My learned friend said at the beginning of his submissions that we had pointed to no error of method in the process of statutory construction.  As we said in our reply in writing, if this Court only took cases where someone sought to make up a new principle of statutory construction or variegate an old one, the Court would not be very busy. 

Special leave should be granted in this case, in our respectful submission, because it raises issues which are plainly arguable – my learned friend in fact conceded that there was, as I understood he made, constructional choice – and it matters.  It matters not only for the particular issues here, which are important, but for RFAs throughout Australia.  Now, as to the purposive argument ‑ ‑ ‑ 

KEANE J:   Mr Kirk, just as you are going to the purposive argument, can I ask you what you say about the extraneous materials referred to in paragraphs 119 and 120 at 733 in relation to purpose?  They seem to be quite explicit.

MR KIRK:  Thank you, your Honour.  Paragraph 119 is reasonably explicit and is about a Bill that was not passed.  Paragraph 119 is an EM for the 1998 RFA Bill, which was not enacted.  It fell by the wayside and the RFA Act was not enacted until 2002.  That indeed is an error by the Full Court, to rely on that, in our respectful submission.  At paragraph 124 on page 734, their Honours referred to the EM for the EPBC Act.  If your Honours look at those dot points, for example, the second one:

actions which may have a significant impact on matters of national environmental significance –

it is hard to see how that is contrary to the submissions we have put.  We rather embrace it.  The last dot point:

a reliance on State processes and management approaches –

again, it is hard to see how that is against our construction.  I will just make one more point very briefly, in terms of consequences.  It is very simple.  VicForests is protected from having to comply with the federal law, that is the benefit they get under the exemption, so long as they comply with what is required under the RFA.  That is a significant benefit to VicForests and to other foresters.  If they do not comply, they lose the exemption and these matters of national environmental significance are protected under the Act.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Kirk.  The Court will adjourn briefly to consider the course that it will take.

AT 10.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

KIEFEL CJ:   We see no reason to doubt the correctness of the decision of the Full Court in this matter.  Special leave is refused with costs.

The Court will now adjourn.

AT 10:12 AM THE MATTER WAS CONCLUDED