Friends of Leadbeater's Possum Inc v VicForests
[2018] FCA 178
•2 March 2018
FEDERAL COURT OF AUSTRALIA
Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary.
This proceeding concerns forestry operations in the Central Highlands State Forest, in the north west of Victoria. The term “forestry operations” encompasses the felling of trees (or logging as it is usually called), but also includes conduct such as land clearing to prepare for logging, burning after logging and the re-planting of trees. The applicant is an organisation whose objects and purposes, and activities, are directed towards the protection and conservation of the environment. The federal legislation at the centre of this case, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), expressly permits organisations such as the applicant to bring proceedings about alleged contraventions of that legislation. The respondent, VicForests, is the statutory agency in Victoria which carries out forestry operations in State forests.
In 1998, the State of Victoria and the Commonwealth entered into an intergovernmental agreement called the Central Highland Regional Forest Agreement. The purpose of that agreement, which is often abbreviated to “RFA”, was to establish a framework for the management of the forests of the Central Highlands. The Commonwealth entered into similar RFAs with Victoria in relation to other forest regions in Victoria, and also entered into similar RFAs with other State governments. Regional Forest Agreements were intended to provide for the conservation of forests, and the flora and fauna found in them, while allowing for ecologically sustainable management and use of those forests. RFAs were concluded after a process of environmental assessment by the Commonwealth to determine that State forest management systems would provide adequate protection to the environment, including to the flora and fauna found in forests. These State systems included the areas a State sets aside as reserves to be protected from forestry operations, and the State’s forest management prescriptions regulating individual forestry operations. RFAs also dealt with other matters such as forest industry development, indigenous heritage and other forest uses.
After the Commonwealth and the States decided to pursue a national system of RFAs, the Commonwealth enacted legislation to exempt forestry operations in regions covered by RFAs from the operation of federal environmental legislation. The current legislation is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), or EPBC Act for short. It contains a series of prohibitions on conduct that has, or is likely to have, a significant impact on a matter of national environmental significance. Listed threatened species is one such matter. Others include World Heritage areas and the marine environment. People wishing to engage in conduct that is likely to have such an effect generally have to go through an approvals process under the EPBC Act, and the federal Minister may or may not approve the conduct, and if approved, may impose conditions that have to be complied with to minimise or mitigate any adverse environmental effects. The EPBC Act contains a number of exemptions from this process. One, as I have noted, relates to the conduct of forestry operations.
The decision I am handing down today is about the nature and scope of the exemption for forestry operations, which is contained in s 38(1) of the EPBC Act.
It is agreed between the parties that the Central Highlands RFA region is home to, among other species of fauna, populations of Leadbeater's Possum and Greater Glider. They are both listed as threatened species under the EPBC Act. The Leadbeater’s Possum is now listed as “critically endangered”, which is the category coming before “extinct in the wild”. The Greater Glider is listed as “vulnerable”, which recognises a lesser level of threat to its sustainability in the wild than the threat to the Leadbeater’s Possum. The applicant alleges that VicForests’ past and future forestry operations in a number of specifically identified coupes in the Central Highlands State Forest have had, will have, or are likely to have, a significant impact on the two species. The applicant seeks orders restraining VicForests from undertaking any further forestry operations in the identified coupes, as well as mitigation orders under the EPBC Act, in relation to past forestry operations.
A trial of the whole of the applicants’ allegations would have been a long and complicated process. The parties responsibly agreed that, in order to minimise costs and resources, the Court could answer a single question of law about the nature and scope of the exemption in s 38(1). If the answer were unfavourable to the applicant’s arguments, that would be the end of the proceeding. If the answer were favourable to the applicant’s arguments, there would need to be a full trial about the alleged impacts on the two species from VicForests’ forestry operations, but the central legal issue about the EPBC Act’s application would have already been answered.
The agreed procedure is called the stating of a separate question. In substance, the separate question in this proceeding asks whether VicForests’ forestry operations have the benefit of the exemption in s 38(1) of the EPBC Act. The question also refers to another piece of the federal legislation, the Regional Forest Agreements Act 2002 (Cth), where an exemption in the same terms is set out. However in my opinion it is the EPBC Act exemption in s 38(1) that is the proper focus of the arguments.
The applicant’s argument is that Victoria and the Commonwealth agreed, in the terms of the Central Highlands RFA, that there would be five yearly reviews of the performance and operation of the Central Highlands RFA, and those reviews were not carried out in the time periods required under the RFA. The result, the applicant contends, is that the exemption in the EPBC Act does not apply, and VicForests’ forestry operations are subject to the general prohibitions and federal approvals processes in the EPBC Act. It is an agreed fact that the three five yearly reviews required by cl 36 of the Central Highlands RFA were not undertaken in the periods set out in the RFA. This failure, the applicant alleges, means VicForests’ forestry operations are not being undertaken “in accordance with” the Central Highlands RFA, which is the language used in the s 38(1) exemption.
The State of Victoria and the Commonwealth were both granted leave to intervene and make arguments in the proceeding. They put forward arguments different to those of the applicant, and different to those of VicForests.
THE COURT’S DECISION
I have decided the applicant’s arguments about the scope and operation of s 38(1) should not be accepted. I have also decided that VicForests’ arguments about s 38(1) should not be accepted. I have decided that the correct construction of the exemption in s 38(1) is that put forward by the Commonwealth, with which the State of Victoria largely agreed.
In my opinion, VicForests’ conduct of forestry operations in the Central Highlands RFA region is covered by the exemption in s 38(1), notwithstanding the failure of the State of Victoria to undertake the five yearly reviews in the period set out in cl 36 of the Central Highlands RFA. I have decided that some failures to perform obligations assumed under an RFA are not intended by the EPBC Act to affect the conduct of forestry operations, but are matters between the two governments. Clause 36 and the five yearly reviews is one such matter.
However, I have also rejected the arguments of VicForests that, so long as forestry operations are conducted in a region covered by an RFA and there is no express prohibition of those forestry operations in the RFA, the s 38(1) exemption applies. I consider this gives the exemption too broad an operation, and not one intended by the EPBC Act.
I have accepted the submissions of the Commonwealth, with which the State of Victoria largely agreed, that there is, in effect, a mid-way point. Forestry operations must be undertaken in conformity with the systems of forest management accredited by the Central Highlands RFA, which is largely a State based forest management system. The system includes reserves set aside from forestry operations, restrictions called “management prescriptions” applicable to specific forestry operations, and requirements in action plans and recovery plans for different listed threatened species about where and how forestry operations must be carried out to ensure the protection of those species, and their habitat. These kinds of restrictions must be observed for forestry operations to have the benefit of the exemption in s 38(1).
As the State of Victoria submitted, this case was not about any breaches of the requirements in Victoria’s forest management system in the Central Highlands State forest, so it is no part of the Court’s decision in this matter to examine whether or not VicForests’ forestry operations in the identified coupes have complied with those requirements.
An important consequence of the conclusion I have reached is that I consider the separate question, as stated, cannot be answered with a simple “yes”. Rather, a qualified answer must be given. The applicant's arguments have failed, but to give an unqualified “yes” answer to the separate question would be to find VicForests has the benefit of the s 38(1) exemption in circumstances that have not been considered by the Court.
For that reason, no final orders will be made today. The parties and interveners will have an opportunity to consider the Court’s reasons and make proposals about how the separate question should be answered to reflect those reasons, including the fact that the applicant’s arguments have failed. The parties and interveners will also be given an opportunity to make submissions about what, if any, costs orders the Court should make.
JUSTICE MORTIMER
2 March 2018
FEDERAL COURT OF AUSTRALIA
Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178
File number: VID 1228 of 2017 Judge: MORTIMER J Date of judgment: 2 March 2018 Catchwords: ENVIRONMENT LAW – statutory interpretation of regulatory scheme established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and related legislation –non-compliance with a certain clause of a regional forest agreement – whether exemption in s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) engaged – nature of the compliance with regional forest agreement required to engage exemption – applicant’s construction rejected Legislation: Acts Interpretation Act 1901 (Cth), s 15AB
Australia Heritage Commissions Act 1975 (Cth)
Endangered Species Protection Act 1992 (Cth), s 4
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 3, 18, 19, 25, 29, 32, 33, 34, 34A, 34D, 37, 37B, 37G, 37M, 38, 39, 40, 41, 42, 43, 46, 39, 53, 70, 73, 74, 74A, 74AA, 139, 176, 178, 179, 184, 188, 189, 194, 196, 197, 304, 305, 475, 487, 502, 517A, 523, 524, 525
Environmental Protection (Impact of Proposals) Act 1974 (Cth)
Environmental Reform (Consequential Provisions) Act 1999 (Cth)
Evidence Act1995 (Cth), s 191
Export Control Act 1982 (Cth)
Fair Work Act 2009 (Cth), ss 501, 502
Federal Court Rules 2011 (Cth), rr 9.12, 30.01
Great Barrier Reef Marine Park Act 1975 (Cth)
Regional Forest Agreements Act 1999 (Cth), ss 3, 4, 6, 7, 10, Schedule 1
Regional Forest Agreements Bill 2002 (Cth), cl 6
Regional Forest Agreements Bill 1998 (Cth), cl 3
Industrial Relations Regulations 1989 (Cth), reg 98
Associations Incorporation Reform Act 2012 (Vic)
Conservation, Forests and Lands Act 1987 (Vic)
Flora and Fauna Guarantee Act 1988 (Vic)
Forests Act 1958 (Vic)
State Owned Enterprises Act1992 (Vic), s 14
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 268 IR 113
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Bass v Permanent Trustee [1999] HCA 9; 198 CLR 334
Carr v Western Australia [2007] HCA 47; 232 CLR 138
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Commonwealth v Baume [1905] HCA 11; 2 CLR 405
Connect East Management v Federal Commissioner of Taxation [2009] FCAFC 22; 175 FCR 110
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297
Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54; 92 ALJR 106
Esso Australia Resources Ltd v Federal Commissioner for Taxation [1998] FCA 1655; 83 FCR 511
Ex parte Hestelow; Re Claye (1967) 87 WN (Pt 1) (NSW) 184
Farah Constructions Pty Ltd and others v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Forestry Tasmania vBrown [2007] FCAFC 186; 167 FCR 34
Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573
MyEnvironmentInc v VicForests [2013] VSCA 356; 42 VR 456
Ramsay v Sunbuild Pty Ltd [2014] FCA 54; 221 FCR 315
Re LA (1993) 41 FCR 151
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252
Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated [2016] FCAFC 129; 244 FCR 21
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405
Tasmanian Aboriginal Centre Incorporated v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168; 337 ALR 96
Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531
Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Walker v Wilson [1991] HCA 8; 172 CLR 195
Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources (2007) FCAFC 175; 166 FCR 154
Date of hearing: 14 - 15 December 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 283 Counsel for the Applicant: Mr P J Hanks QC with Ms J D Watson and Mr M D Tehan Solicitor for the Applicant: Environmental Justice Australia Counsel for the Respondent: Mr I G Waller QC with Mr H L Redd and Ms K Chow Solicitor for the Respondent: Baker & McKenzie Counsel for the First Intervener: Mr C M Caleo QC with Ms E A Bennett Solicitor for the First Intervener: Victorian Government Solicitor’s Office Counsel for the Second Intervener: Mr T Howe QC with Mr T Goodwin Solicitor for the Second Intervener: Australian Government Solicitor
Table of Corrections 20 April 2018 In the first sentence of paragraph 1, the words “north west” have been replaced with “east”. 20 April 2018 In paragraph 27, the word “auditory” has been replaced with the word “hortatory”. 20 April 2018 In paragraphs 164 and 165, the spelling of the word “phytophthora” has been corrected. ORDERS
VID 1228 of 2017 BETWEEN: FRIENDS OF LEADBEATER'S POSSUM INC
Applicant
AND: VICFORESTS
Respondent
COMMONWEALTH OF AUSTRALIA
First Intervener
STATE OF VICTORIA
Second Intervener
JUDGE:
MORTIMER J
DATE OF ORDER:
2 MARCH 2018
THE COURT ORDERS THAT:
1.On or before 16 March 2018, the parties and interveners are to file an agreed proposed form of answer to the separate question, taking into account the Court’s reasons for judgment, together with any further or other orders the parties and interveners submit the Court should make, including as to costs.
2.In the absence of any agreement pursuant to paragraph 1 of these Orders, on or before 30 March 2018, the parties and interveners are to file submissions, each limited to five pages, concerning their respective proposed form of answer to the separate question, taking into account the Court’s reasons for judgment, together with submissions on any further or other orders the parties and interveners submit the Court should make, including as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
Introduction and summary
[1]
1 The separate question
[7]
The process adopted to determine the separate question
[10]
The agreed facts and documents
[14]
The positions of the parties and interveners
[19]
Resolution of the separate question
[42]
Making constructional choices
[43]
The use of extrinsic material
[52]
The extrinsic material in this case
[57]
The EPBC Act generally
[62]
Part 4 of Ch 2: the exemptions and exceptions to Part 3
[76]
Division 4 of Part 4 of the EPBC Act, including section 38, the RFA Act and the National Forest Policy Statement
[93]
RFAs and the Central Highlands RFA in particular
[133]
The Victorian regime in place in 1998
[187]
Key factors
[189]
Text
[191]
The focus on forestry operations in cl 38(1) and s 6(4)
[193]
The use of “in accordance with” in this legislative scheme and in s 38(1)
[197]
Context
[214]
Purpose
[216]
The scheme of the EPBC Act
[219]
Consequences
[223]
Consequences of VicForests’ construction
[227]
Consequences of the applicant’s construction
[229]
Why clause 36 is not a compliance clause
[232]
Does Brown compel a particular answer to the separate question?
[240]
Is there any different effect between s 38(1) and s 6(4)?
[266]
Conclusion
[269]
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION AND SUMMARY
This proceeding concerns forestry operations in the Central Highlands State Forest, in the east of Victoria. The respondent, VicForests, carries out forestry operations (as they are described in the Environment Protection and Biodiversity Conservation Act 1999 (Cth)) in that forest. VicForests is an entity established under s 14 of the State Owned Enterprises Act1992 (Vic). The applicant contends that forestry operations which have been carried out, and which VicForests proposes to carry out in the foreseeable future, in a number of specifically identified coupes in the Central Highlands State Forest have had, will have, or are likely to have, a significant impact on two threatened species: namely, the Leadbeater's Possum (Gymnobelideus leadbeateri) and the Greater Glider (Petauroides Volans). Each of these species is listed as a threatened species pursuant to s 178 of the EPBC Act. The applicant seeks orders restraining VicForests from undertaking any further forestry operations in the identified coupes, as well as mitigation orders pursuant to s 475(3) of the EPBC Act, in relation to past forestry operations.
The applicant is an entity incorporated under the Associations Incorporation Reform Act 2012 (Vic). Its name is indicative of its concerns. There was no submission from the respondent or the interveners that the applicant does not meet the standing requirements in s 487 of the EPBC Act. I accept the applicant has standing to seek the relief it does.
When this proceeding was filed, the applicant also sought interlocutory relief restraining the respondent from conducting forestry operations in two coupes (identified as coupes 298-502-0003 and 462-504-0009) pending the hearing and determination of the substantive application. That interlocutory relief was sought because the applicant apprehended forestry operations in those two couples were imminent. The applicant and the respondent ultimately agreed to propose a course to the Court involving the stating of a separate question. On the Court agreeing to that course, VicForests gave the following undertakings:
The respondent by its counsel undertakes that it will not, whether by itself, its servants, agents, contractors or howsoever otherwise, conduct timber harvesting operations within the meaning of s 3 of the Sustainable Forests (Timber) Act 2004 (Vic), save for the removal of any harvested timber from the Coupe landings, within the Scheduled Coupes pending the hearing and determination of the separate question.
The “Scheduled Coupes” which were the subject of the undertaking were defined as all the coupes referred to in paragraph 10 of the applicant’s statement of claim. This enabled the proposed hearing and determination of the separate question to occur in a timely manner, and the parties are to be commended for agreeing to this approach.
In summary, I have concluded the stated question should be answered unfavourably to the applicant, but that the answer needs qualification. I have concluded that on a proper construction of s 38(1) of the EPBC Act and s 6(4) of the Regional Forests Agreements Act 2002 (Cth), the operation of those exemptions is not affected by the failure to carry out reviews of the performance of the Central Highlands Regional Forest Agreement, as contemplated by cl 36 of the Central Highlands RFA. In substance, I have accepted the Commonwealth’s submissions, supported by the State of Victoria, about the proper construction and operation of these two exemptions. The consequence of adopting that approach is that, despite a conclusion unfavourable to the applicant, the separate question cannot be answered affirmatively in an unqualified way. A qualified answer is required to reflect the failure of the applicant’s particular contentions concerning cl 36 of the Central Highlands RFA, rather than an answer reflecting some broader conclusion about the application of the exemptions to all of VicForests’ forestry operations in the identified coupes.
The need to qualify the answer to the separate question is unlikely to affect the relief which I consider appropriate. The answer to the separate question must, it seems to me, still inevitably result in the dismissal of the application, because the basis for the applicant’s allegations cannot succeed.
THE SEPARATE QUESTION
On 17 November 2017, I ordered pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), that the following question be heard separately from any other questions in the proceeding:
Was the logging of the Logged coupes, and will the proposed logging of the Scheduled Coupes be, RFA forestry operations undertaken in accordance with the Central Highlands Regional Forest Agreement such that those forestry operations are exempt from the application of Part 3 of the Environment Protection Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), pursuant to either s 38(1) of the EPBC Act or s 6(4) of the Regional Forest Agreements Act 2002 (Cth)?
In its statement of claim, the applicant put forward a specific basis on which it alleged that the exemptions s 38(1) and s 6(4) did not operate or apply to the identified past or future forestry operations by VicForests. The basis was that the failure of the Commonwealth and the State of Victoria to carry out each of the first, second and third five-yearly performance reviews of the Regional Forest Agreement, as required by cl 36 of the Central Highlands RFA, meant that past and future forestry operations in the identified coupes were not being undertaken “in accordance with” the Central Highlands RFA, so that the benefit of the exemptions in s 38(1) and s 6(4) could not be claimed by VicForests.
The parties submitted, and I accepted, that on the basis of facts agreed between the parties for the purposes of s 191 of the Evidence Act1995 (Cth), if the question were answered in the affirmative, that answer would require the application to be dismissed. If the question were answered in the negative, the parties submitted, and I accepted, there would need to be a trial on the applicant’s allegations concerning the impact of past and future forestry operations in the identified coupes on each of the two listed threatened species. The possibility that a more nuanced answer might be required was not apprehended at the time the question was formulated.
The process adopted to determine the separate question
On 17 November 2017, I also made orders that the parties confer on the appropriate method for establishing the necessary facts for the determination of the separate question. The parties were initially unable to agree on a set of agreed facts, however on 8 December 2017 the parties did file an agreed statement of facts.
On 22 November 2017, the Commonwealth made an application for leave to intervene in the proceeding pursuant to rule 9.12 of the Federal Court Rules 2011 (Cth). The basis on which the Commonwealth brought its application was that it had a particular interest in the proper construction of the provisions of the EPBC and RFA Acts and sought to assist the Court in its task of construing these provisions.
On 23 November 2017, the State of Victoria also applied for leave to intervene. The basis on which leave was sought by the State was that it was a party to the Central Highlands RFA and the statement of claim filed by the applicants, amongst other things, alleged that the State has breached this agreement. The State submitted it had an interest in any allegation of fact concerning compliance with the Central Highlands RFA (about which it could lead evidence) and the legal consequences of alleged non-compliance. The State submitted that VicForests was not a party to the Central Highlands RFA and had no legal or administrative responsibility within the State for administering, and complying with clause 36 of the Central Highlands RFA.
On 29 November 2017, I granted leave for the Commonwealth and the State of Victoria to intervene in the proceeding.
Although this was a matter which occupied some time during case management, the parties submitted that they did not consider it necessary or appropriate for there to be any agreed facts about whether or not the forestry operations set out in the statement of claim had, or were likely to have, a significant impact on other or both of the Leadbeater’s Possum or the Greater Glider. It was enough, the parties submitted, for there to be an agreement on the nature of the applicant’s allegations and the fact of the absence of an approval under Pt 9 of the EPBC Act: see [16]–[18] of the agreed statement of facts. I ultimately accepted the parties’ position, although I retained some concern about this matter.
As it has turned out, the absence of agreement on facts concerning significant impact on the two species has a different consequence, given the conclusions I have reached. So too does the absence of any agreed facts about other aspects of VicForests’ forestry operations, past and proposed. I discuss this at [273]-[279] below, in the context of explaining why in my opinion there needs to be a qualified answer to the separate question.
The agreed facts and documents
The facts as agreed between the parties covered the following categories, and closely followed most of the non-contentious allegations in the applicant’s statement of claim:
·the applicant’s standing and VicForests’ relevant functions, including the preparation and publication of timber release plans for the Central Highlands RFA area;
·a list of coupes identified by the applicant that have already been clear felled by VicForests between 2004 and 2017;
·a list of coupes identified by the applicant that are proposed to be clear felled by VicForests between 2017 and 2018;
·a list of coupes identified by the applicant that are proposed to be harvested by the “seed tree retention method” by VicForests between 2017 and 2018;
·some agreed facts about the status of the two species and their likely presence in the impugned coupes;
·some agreed facts about what is involved in clear felling and seed tree retention methods of timber harvesting; and
·a series of agreed facts about the status of the Central Highlands RFA, that the forestry operations were “RFA forestry operations”, and the failure to undertake reviews of the performance of the Central Highlands RFA as contemplated by cl 36 of the Central Highlands RFA.
A number of documents were attached to the agreed statement of facts, to which I refer in these reasons as necessary.
The agreed facts concerning each of the two species, and their likely presence in the impugned coupes, should be set out:
12.The CH RFA Area is the home to, among other species of fauna, populations of Leadbeater's Possum (Gymnobelideus leadbeateri) and Greater Glider (Petauroides Volans).
Particulars
(a)Sightings of the Leadbeater’s Possum in the CH RFA Area are recorded in a Geographic Information System (GIS) file maintained by the Victorian Government Department of Environment, Land, Water and Planning carrying the filename “LBPAG_SITES_CHRFA” and which can be viewed on the internet at the Victorian Government website titled “Leadbeater’s Possum Interactive Map” located at lbp.cerdi.eq.u.au/possum_map.php.
(b)Sightings of the Greater Glider in the CH RFA Area have been recorded by observers in video footage, still photographs and by the recording of sighting locations of Greater Gliders on handheld Global Positioning System (GPS) devices, creating a point location GIS file.
Records of the sightings of the Greater Glider in the CH RFA Area may be inspected at the office of the Applicant' s solicitor during standard business hours.
(c)Some sightings of the Greater Glider in the CH RF A Area are recorded in two GIS files maintained by the Victorian Government Department of Environment, Land, Water and Planning carrying the filenames “VBA_FAUNA25” and “VBA_FAUNA100” and which can be obtained via the Victorian Government website located at 11 July 2000, the Minister for the Environment and Heritage declared Leadbeater’s Possum to be listed as a threatened species in the endangered category by declaration under s 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).'
14.On 22 April 2015, the Minister for the Environment (the Minister) approved a conservation advice and transferred the Leadbeater’s Possum to the critically endangered category under the EPBC Act, with effect from 2 May 2015.
15.On 2 May 2016, the Minister included the Greater Glider as a threatened species in the vulnerable category under the EPBC Act. On 25 May 2016, the Minister approved, by delegate, a conservation advice for the species with effect from 5 May 2016.
The agreed facts concerning the failure to undertake reviews of the performance of the Central Highlands RFA as contemplated by cl 36 were:
23. Clause 5 of the CH RFA provides that the CH RFA will remain in force for 20 years. The expiry date for the CH RFA is 27 March 2018.
24. Clause 36 of the CH RFA provides that, every five years, a review of the performance of the CH RFA will be undertaken.
25. Clause 38 of the CH RFA provides that the mechanism for the review will be determined by both Parties before the end of the five-year period and the review will be completed within three months.
26. The first five-yearly review for the CH RFA was not undertaken within the first five-year period fixed by cl 36 of the CH RFA.
27. The second five-yearly review for the CH RFA was not undertaken within the second five-year period fixed by cl 36 of the CH RFA.
28. The third five-yearly review for the CH RFA was not undertaken within the third five-year period fixed by cl 36 of the CH RFA.
THE POSITIONS OF THE PARTIES AND INTERVENERS
It is appropriate to set out the terms of s 38(1) of the EPBC Act here, although I set them out again later in these reasons. The text of s 6(4) of the RFA Act is identical to the text of s 38(1).
Division 4—Forestry operations in certain regions
Subdivision A—Regions covered by regional forest agreements
38 Part 3 not to apply to certain RFA forestry operations
(1)Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.
(2) In this Division:
RFA or regional forest agreement has the same meaning as in the Regional Forest Agreements Act 2002.
RFA forestry operation has the same meaning as in the Regional Forest Agreements Act 2002.
Note: This section does not apply to some RFA forestry operations. See section 42.
The applicant contended the EPBC Act, read with the RFA Act and the legislative history of both Acts led to two propositions:
(1)the RFA regime replaces the EPBC Act; and
(2)there must be “full compliance” with the RFA regime.
In general terms, neither VicForests nor the interveners disagreed with the first proposition. Whether the verb is “replace” or “substitute”, the contended effect is the same, and can be accepted. The applicant correctly recognises the role of s 38(1) as an exemption to a scheme otherwise involving prohibitions, and the granting of permissions to avoid the prohibitions. The constructional debate turns on the circumstances in which the exemption operates: that is, the second of the applicant’s two propositions.
At a textual level, the applicant, the Commonwealth and the State all gave the same or similar meaning to the phrase “in accordance with” in the Pt 4 exemptions, including in s 38(1). They all submitted it meant “consistently with”, “in conformity with” or “in compliance with” – whichever expression is chosen, the core element is that there was a requirement for forestry operations to conform with the terms in, and the regulatory scheme of, an RFA.
In contrast, VicForests contended the phrase was used as a reference point: that is, as a mechanism to identify a link between the forestry operations and a particular RFA. In other words, if forestry operations were being conducted in an “RFA region” and were referable to an RFA, then they were being conducted “in accordance with” an RFA. As I explain below, I reject this construction of the phrase “in accordance with”, in the context in which it appears in s 38(1) and s 6(4).
The applicant submitted the two Acts and their extrinsic materials:
…indicate that the RFA regime was intended to replace the EPBC Act and provide an alternative regime, pursuant to which forestry operations could be conducted. It follows from the fact that the RFA regime was intended to replace the operation of the EPBC Act that compliance with all terms of the RFA regime (rather than isolated provisions) is necessary.
This passage reflects the applicant’s primary contention: namely wherever the “regime” established by an RFA imposes obligations (whether in terms of conduct, performance of functions, or decision-making or all of these), those obligations must be met before any forestry operations will be exempt.
Its second, and alternative, position is that there must be “substantial compliance” with the “material” provisions of the RFA. It submits cl 36 of the Central Highlands RFA is a material provision, in respect of which there has been not even substantial compliance, and that is sufficient to render the exemption inapplicable. In oral argument senior counsel for the applicant resisted the need to pinpoint each clause in the Central Highlands RFA which could be said to fall into this category of “material” provisions. It was sufficient, he submitted, for the applicant to persuade the Court that cl 36 was in this category. He summarised the applicant’s contention about how one could make the distinction by accepting that some clauses in the Central Highlands RFA are “hortatory”, or expressions of hope. He referred to cl 48 as an example, which provides:
48. Parties agree that the current forest management system could be enhanced by further developing appropriate mechanisms to monitor and review the sustainability of forest management practices. To ensure that this occurs, Parties agree to establish an appropriate set of sustainability indicators to monitor forest changes. Any indicators established will be consistent with the Montreal Process Criteria (as amended from time to time), the current form of which is specified in Attachment 7, and will take into account the framework of regional indicators developed by the Montreal Process Implementation Group (MIG). Indicators will be practical, measurable, cost-effective and capable of being implemented at the regional level.
Clause 36, senior counsel submitted, is more definite, and the obligations it imposes are thus capable of being assessed for compliance, as the use of the phrase “in accordance with” suggests should occur. He noted the text in cl 36 is very specific, and includes timeframes. The substance of the obligation in cl 36 was also submitted to be critical because it ensures the parties will focus on whether the Central Highlands RFA is working. Senior counsel agreed with submissions by the Commonwealth that there were other parts of the RFA which imposed certain and material obligations with which compliance was required for the benefit of the s 38(1) exemption to be claimed. He agreed that cl 57 and that part of Attachment 2 dealing with the approved recovery plan for the Leadbeater’s Possum was one example; and the implementation of the CAR Reserve System as set out in Attachment 1 was another.
However, the applicant submitted that such obligations in terms really only look forward for the first five years after the Central Highlands RFA was concluded: that is, until 2003. Thereafter, the maintenance of appropriate priorities, commitments, plans and processes depends, the applicant submits, on the conduct of the five-yearly reviews and the adjustment of priorities and commitments after those reviews. The applicant submits the contents of the Central Highlands RFA demonstrate that the priorities and commitments with which the reviews are concerned are intended to provide the basis for the ongoing conduct of forestry operations in the Central Highlands RFA region.
VicForests contended, consistently with its proposed construction of the term “in accordance with” in both s 38(1) and s 6(4), that any forestry operations that:
(a)are forestry operations as defined by an RFA as in force on 1 September 2001; and
(b) are conducted in relation to land:
(i) in a region covered by the RFA; and
(ii) where those operations are not prohibited by the RFA
are exempt from the operation of pt 3 of the EPBC Act.
That is, VicForests contended the exemption would operate where there was:
·a characterisation of the conduct (whether “forestry operations” as defined in the EPBC/ RFA Act);
·identification of the geographical location of those forestry operations (whether in an RFA region); and
·an absence of any express prohibition in the RFA (I did not understand the submissions to encompass any implied prohibitions).
In oral argument, senior counsel for VicForests accepted that this approach might have the consequence that there could, in fact, be a significant impact on a listed threatened species from the conduct of forestry operations and yet the exemption would still apply if these three conditions were met. He submitted the legislative and policy protocols in existence at State level would make such a scenario unlikely, but he frankly conceded this was a consequence of the construction for which VicForests contended. He submitted Parliament’s intention was to provide a broad exemption, the State’s ongoing conduct of forestry operations having essentially been audited and approved by the Commonwealth through the RFA process, and thereafter the federal legislative scheme was not intended to reach forestry operations other than in the limited circumstances he had outlined.
The position of the Commonwealth, and the State, sat somewhere in between the parties’ positions.
The Commonwealth submits that more is required for the s 38(1) exemption to operate than simply whether the forestry operations are properly characterised as “RFA forestry operations” because they are conducted in an RFA region. That matter provides, the Commonwealth submits, the eligibility for the application of the exemption. Whether s 38(1) is engaged in respect of eligible RFA forestry operations depends on how, if at all, the particular RFA regulates the actual conduct of forestry operations in that region. Where a particular RFA does regulate the way forestry operations are to be undertaken, then any forestry operations in that RFA region must be “in accordance with” what the RFA requires. Senior counsel for the Commonwealth gave a number of examples, to which I refer below in the section of these reasons dealing with the Central Highlands RFA. To support its construction of the work to be done by the words “in accordance with”, and consistently with its broader submission that the terms of the RFA Act are the terms which should be consulted first, before the EPBC Act, the Commonwealth relies on the text of s 7 of the RFA Act.
Section 7 provides:
The termination of an RFA by the Commonwealth is of no effect unless it is done in accordance with the termination provisions of the RFA, being those provisions as in force:
(a) at the time of commencement of this section; or
(b) at the time the RFA comes into force;
whichever is later.
The Commonwealth submits it is clear that the work to be done by the words “in accordance with” is to pick up the specific terms of a particular RFA and to require compliance with those terms for there to be a valid termination of the agreement. I accept the force of this submission, although as I note elsewhere, in my opinion the phrase “in accordance with” in the EPBC Act does the same work in any event.
The State adopted a similar position to the Commonwealth.
It submits that the non-observance of the Central Highlands RFA that is alleged by the applicant is not directed to the “forestry operations” that are authorised by the Central Highlands RFA, and instead is directed to non-compliance by the State of Victoria with non-binding obligations it assumed under the Central Highlands RFA.
There were aspects of the State’s written submissions which seemed to bring its position closer to that of VicForests than the Commonwealth. For example, the following written submission:
Once the Court is satisfied that the agreement is an RFA for the particular region, the forestry operations taking place within its geographic bounds are not subject to any regulation under Part 3 of the EPBC Act.
Later however in its written submissions, the State contended:
Second, it is “forestry operations” that are exempted from the operation of the EPBC Act. To the extent that the obligation to undertake those operations “in accordance with” the relevant RFA is imposed, it is limited to obligations actually imposed by the RFA that relate to “forestry operations”. The Applicant in this case has not identified any such obligation.
In oral submissions, senior counsel for the State confirmed his client’s position was the State did not embrace the position that was put by VicForests in its written and oral submissions. He clarified that to the extent the position of the Commonwealth was distinguished from that of VicForests, the position of the State of Victoria is in accordance with the Commonwealth’s position. Senior counsel for the State placed one caveat, on behalf of the State, on its agreement with the Commonwealth submissions. This concerned some of the examples given by Mr Howe QC for the Commonwealth during oral argument. Mr Caleo QC for the State submitted that the examples given at a “granular level” from the terms of the RFA would need to be investigated where a question arose about the compliance of particular forestry operations with those “granular” provisions. There was no concession on behalf of the State that each and every example given by senior counsel for the Commonwealth would, in relation to a particular set of forestry operations, necessarily regulate the undertaking of those forestry operations so that the s 38(1) exemption would not apply if there was non-compliance.
The State’s caveat is understandable. The caveat recognises and accepts the examples as useful to illustrate the distinction in terms of constructional choice. However, any determination of how non-compliance with – for example – the Victorian Code of Practice for Timber Production – could or would render particular forestry operations in the Central Highlands RFA region outside the exemption in s 38(1) of the EPBC Act would need to await consideration and determination where such allegations were specifically made. That, with respect, must be so. It does not detract from the usefulness of the examples to which the Commonwealth referred the Court, and which I have set out later in my reasons.
RESOLUTION OF THE SEPARATE QUESTION
In this part of my reasons I set out the approach I have taken to the making of the constructional choices presented by the separate question. I then set out the scheme of the EPBC Act and my findings about that scheme as relevant to the resolution of the separate question. I undertake the same task in relation to the RFA Act, the National Forest Policy Statement and the Central Highlands RFA. I then explain what the key factors in reaching my conclusion that the construction of s 38(1) (and s 6(4) of the RFA Act) advanced by the Commonwealth, supported by the State, is the correct one.
Making constructional choices
The parties and interveners relied on a range of factors they each submitted inform the constructional choices that all accepted exist. In the end the text, context and purpose of the EPBC Act (and, in a more restricted way, the RFA Act) control the choice to be made by the Court: Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 at [44]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at 389 [24]–[25] (French CJ and Hayne J); Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23], (French CJ, Hayne, Kiefel, Gageler and Keane JJ). In Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54; 92 ALJR 106, Gageler J said at [71]:
Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are important. More important is the "purpose and policy" reasonably attributed to the provision within the statutory scheme.
(Footnotes omitted).
In other judgments dealing with the correct approach to statutory construction, and to constructional choices, I have referred to the recent decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 where, at [14], the plurality said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
(Footnotes omitted.)
Similarly, Gageler J (who was in dissent, as his Honour was in Esso Resources, but not on the principles of statutory construction) said at [37]-[39]:
Both of those passages have been “cited too often to be doubted”. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.
Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.
(Footnotes omitted.)
The choices presented by the separate question do not depend on the meaning of an individual word, although they do turn to a material extent on the meaning of the phrase “in accordance with”. Nevertheless, this is not a situation where the Court is faced with that mythical creature called the “ordinary” or “natural” meaning of a word in a statutory provision. Rather, as Gageler and Keane JJ said in SZTAL at [38] (citing Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at 557 [66], the constructional choice turns “on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.
Context and purpose are particularly important in the constructional choices to be made about s 38(1) and s 6(4), including the correct meaning to be given to the phrase “in accordance with” in s 38(1).
In making constructional choices, the nature of the provision is also important. Section 38(1) operates as an exemption not only from the controlled action approvals process in Pt 9 of Ch 4, but antecedent to this, as an exemption from the prohibitions in Pt 3 of Ch 2. In relation to each matter of national environmental significance set out in Pt 3 (World Heritage, National Heritage, wetlands of international importance, listed threatened species and communities, listed migratory species, protection of the environment from nuclear actions, marine environment and the remaining matters referred to), Pt 3 creates criminal offences and imposes civil penalties for contraventions of the prohibitions. The target of these offences and civil penalty provisions are those people or entities who take an “action”. A construction which promotes clarity and an understanding of what, practically, is required to comply with the law will generally be preferred over one which creates, or is likely to create, ambiguity or uncertainty for those whose conduct is being regulated.
In the statutory context of civil penalty provisions of the Fair Work Act 2009 (Cth), in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 268 IR 113, a Full Court of this Court (Allsop CJ, White and O’Callaghan JJ), said (at [15]):
[I]t is helpful to say something as to the approach to the provisions, in both the FW Act and the 2004 Victorian Act, and indeed in the other legislation to be mentioned. First, to the extent that a provision is a civil remedy or civil penalty provision a necessary clarity of meaning should be striven for, to the extent that is possible and conformable with the language employed and context legitimately available. Secondly, notwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.
I respectfully adopt those two observations, and consider them applicable to the circumstances of the scheme established by the EPBC Act.
As I note below, an understanding of s 6(4) and the RFA Act generally is a key component in understanding the correct construction of s 38(1). Ultimately, it is s 38(1) which must be the subject of the constructional choice, which will then flow through to s 6(4).
The use of extrinsic material
Both parties and the interveners relied substantially on extrinsic material, by way of second reading speeches and explanatory memoranda. Despite repeated judicial caution, courts are still urged to rely on statements extraneous to the text of the legislation as a starting point for constructional choices about a legislative provision, or a legislative scheme.
In Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 (French CJ, Hayne, Crennan, Bell and Gageler JJ) at [39], quoting the Court’s judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47], the Court said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
In their text, Interpretation and Use of Legal Sources (2009), Herzfeld, Prince and Tully refer (at p 85) to a rationale for the focus on statutory text and not on the text used in extrinsic material or by responsible Ministers in Parliament:
“[I]n a society living under the rule of law citizens are entitled to regulate their conduct according to what a statute has said, rather than by what it was meant to say or by what it would otherwise have said if a newly considered situation had been envisaged”. (Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231; [1978] 1 A11 ER 948 (HL), Lord Simon at 237 (WLR))
I respectfully agree. At times, the submissions of the parties and the interveners appeared to encourage the Court to resort first to the extrinsic material before or as a substitute for close examination of the legislative schemes of the EPBC Act and the RFA Act. I have not taken that approach, although in my opinion the extrinsic material confirms the construction I have reached, or at least is not inconsistent with it.
The use of extrinsic material to confirm a meaning at which the Court has arrived by reference to the text, context and purpose of a provision in its legislative scheme is a legitimate use for extrinsic material and expressly contemplated by s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).
The extrinsic material in this case
In the Explanatory Memorandum for the Regional Forest Agreements Bill 2002 (Cth), the notes to cl 6 (which became s 6(4) of the RFA Act) stated:
This clause provides that forestry operations in regions subject to RFAs are excluded from certain Commonwealth legislation. This is because the environmental and heritage values of those regions have been comprehensively assessed under relevant legislation during the RFA process and the RFAs themselves contain an agreed framework on the ecologically sustainable development of these forest regions over the next 20 years.
This passage was considered by the Full Court in Forestry Tasmania vBrown [2007] FCAFC 186; 167 FCR 34 (Sundberg, Finkelstein and Dowsett JJ) at [62]. As the Commonwealth correctly submitted, since it was the RFA Act which introduced the present text of s 38(1), it is important to have regard to the extrinsic material to this Act. However, as I have found, the original text of s 38(1) of the EPBC Act took the same form as many of the other exemptions in Pt 4 of the EPBC Act, and I do not see the changes in textual formulation in 2002 as being of any significance to the meaning of s 38(1). Rather, the original form, reflecting the form used throughout Pt 4, confirms the meaning I have preferred, and the change in language in 2002 is explained simply by the fact it was drafted separately and introduced through another piece of amending legislation.
As to the content of the extrinsic material concerning the RFA Act, I accept the following submissions by the Commonwealth, which I understood to be put by reference to the applicant's contentions concerning cl 36 of the Central Highlands RFA:
The EM [to the RFA Act] also stated that the RFA Bill ‘seeks to underpin the agreements’ by inter alia (i) ‘preventing application of Commonwealth environmental and heritage legislation as they relate to the effect of forestry operations where an RFA, based on comprehensive regional assessments, is in place (reflecting provisions already in the EPBC Act)’ (emphasis added); and (ii) ‘ensuring that the Commonwealth is bound to the termination … provisions in RFAs’. No reference was made in the EM to underpinning RFAs by tying the regulatory carve-outs in ss 38 and 6(4) to executive implementation of one or more provisions of RFAs.
….
Similarly, there is no support in the Minister’s Second Reading Speech for the Applicant’s construction. Rather, the Minister made several statements indicating that any non-compliance with the provisions of an RFA would be dealt with ‘through processes set out in the RFAs’. Again, no mention was made of parties’ non-compliance with provisions of an RFA triggering application of Part 3 of the EPBC Act.
(citations omitted).
The extrinsic material to the EPBC Act leads to no different conclusion. The applicant relied on the following extract from the Explanatory Memorandum accompanying the Bill that became the EPBC Act, describing the object of what became Div 4 of Pt 4 of Ch 2 of the EPBC Act (including s 38(1)). The extract on which the applicant relied actually referred to cl 39 of the Bill, which became s 39 of the Act. These are thus not statements directed at the terms of what was to become s 38(1). Rather they are statements directed at what was to become subdivision B, containing ss 39 to 42. It is subdivision B which has an objects clause, as I note below, while subdivision A (which only contains s 38) has no objects clause.
These variations demonstrate why reliance on extrinsic material can be inadvertently problematic. Nevertheless, since the applicant relied on it, I set out what the explanation for cl 39 (and subdivision B) was:
The object of this subdivision recognises that in each RFA region a comprehensive assessment is being, or has been, undertaken to address the environmental, economic and social impacts of forestry operations. In particular, environmental assessments are being conducted in accordance with the Environment Protection (Impact of Proposals) Act 1974. In each region, interim arrangements for the protection and management of forests are in place pending finalisation of an RFA. The objectives of the RFA scheme as a whole include the establishment of a comprehensive, adequate and representative reserve system and the implementation of ecologically sustainable forest management. These objectives are being pursued in relation to each region. The objects of this Act will be met through the RFA process for each region and, accordingly, the Act does not apply to forestry operations in RFA regions.
This is the passage considered by the Full Court in Brown at [61], to which I refer below. It also appears not to have been noted before the Full Court that this statement was directed at cl 39. Even if one reads the statement as broadly applicable to Div 4 of Pt 4 as a whole, the explanation takes the analysis no further, but it is at least not inconsistent with the Commonwealth’s submissions and the conclusions I have reached.
The EPBC Act generally
I described the scheme of the EPBC Act in Tasmanian Aboriginal Centre Incorporated v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168; 337 ALR 96 at [19]-[34]. Although the Full Court allowed an appeal from that decision (see: Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated [2016] FCAFC 129; 244 FCR 21 (Allsop CJ, Griffiths and Moshinsky JJ)), the general structure of the legislative scheme which I described was not subject to any criticism. I adopt what I said in that judgment concerning the general structure of the EPBC Act, the role of the prohibitions in Pt 3 of Ch 3 of the Act, and the corresponding approvals regime for the taking of an action, which is located in Ch 4 of the EPBC Act.
Before turning to the specific provisions which need to be considered in the context of the separate question, consideration should be given to a number of other provisions, commencing with the objects of the EPBC Act in s 3.
Section 3(1) provides:
3 Objects of Act
(1) The objects of this Act are:
(a)to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and
(b)to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and
(c)to promote the conservation of biodiversity; and
(ca)to provide for the protection and conservation of heritage; and
(d)to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and
(e)to assist in the co-operative implementation of Australia’s international environmental responsibilities; and
(f)to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and
(g)to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.
Those objects have a common focus on the policies of environmental protection and biodiversity conservation, while recognising a variety of circumstances in which those policies will need to operate. A purposive construction of the EPBC Act will take account of that common focus.
Section 3(2) then sets out a description of the way the EPBC Act seeks to achieve those objects. Prominent in the methods to be adopted are references to intergovernmental co-operation, and the minimisation of duplication, as well as a “partnership approach” to environmental protection and biodiversity conservation. These methods are reflected in the terms of Pt 4 of Ch 2 of the EPBC Act, which I discuss below.
Although it is a term used throughout the EPBC Act, including in the objects provision, the term “matters of national environmental significance” is not defined. The heading to Div 1 of Pt 3 is entitled “Requirements relating to matters of national environmental significance”. Part 3 not only contains identified “matters”, but also makes provision for further matters to be declared within this category by regulation: see s 25. Thus, the “matters” are to be extrapolated from the contents of Pt 3 itself, together with the applicable regulations.
The current matters of national environmental significance with which the EPBC Act is concerned are: World Heritage properties and areas; National Heritage Places; Wetlands of international importance; Listed threatened species and communities; Listed migratory species; nuclear actions, the marine environment, the Great Barrier Reef Marine Park and water resources affected by coal seam gas and mining.
The prohibition on conduct affecting listed threatened species as a matter of national environmental significance is contained in s 18:
18Actions with significant impact on listed threatened species or endangered community prohibited without approval
Species that are extinct in the wild
(1)A person must not take an action that:
(a)has or will have a significant impact on a listed threatened species included in the extinct in the wild category; or
(b)is likely to have a significant impact on a listed threatened species included in the extinct in the wild category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered species
(2)A person must not take an action that:
(a)has or will have a significant impact on a listed threatened species included in the critically endangered category; or
(b)is likely to have a significant impact on a listed threatened species included in the critically endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Endangered species
(3)A person must not take an action that:
(a)has or will have a significant impact on a listed threatened species included in the endangered category; or
(b)is likely to have a significant impact on a listed threatened species included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Vulnerable species
(4) A person must not take an action that:
(a)has or will have a significant impact on a listed threatened species included in the vulnerable category; or
(b)is likely to have a significant impact on a listed threatened species included in the vulnerable category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered communities
(5) A person must not take an action that:
(a)has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or
(b)is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category.
Civil penalty:
(a)for an individual—5,000 penalty units;
(b)for a body corporate—50,000 penalty units.
Endangered communities
(6) A person must not take an action that:
(a)has or will have a significant impact on a listed threatened ecological community included in the endangered category; or
(b)is likely to have a significant impact on a listed threatened ecological community included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Section 19 is the provision which then draws in both the permission regime in Pt 9 of Ch 4 of the Act, and the operation of a range of exemptions to the s 18 prohibition, for which the scheme provides. Section 19 relevantly provides:
19Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited
(1)A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of any subsection of that section that relates to a listed threatened species.
...
(3) A subsection of section 18 or 18A does not apply to an action if:
(a)Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(b)there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(c)the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(4)A subsection of section 18 or 18A does not apply to an action, to the extent that it is covered by subsection 517A(7).
The terms of s 517A are not material to the construction question before the Court. A material feature of s 19(3), consistent with the construction I adopt of s 38(1), is that it does not distinguish between the various exemptions and exceptions in Pt 4 of Ch 2. Rather it simply provides that there will be no contravention if “Part 4 lets” a person take the particular action. This is one textual and contextual indication that s 38(1) is intended to operate no differently from the other exemptions in Pt 4.
Although there are few agreed facts about the two species themselves, the relevant provisions of the EPBC Act dealing with threatened species should be noted. Listed threatened species are dealt with in Div 1 of Pt 13 of the Act. Section 178 requires the Minister to establish a list of threatened species, by descending categories of the severity of their status:
178 Listing of threatened species
(1)The Minister must, by legislative instrument, establish a list of threatened species divided into the following categories:
(a) extinct;
(b) extinct in the wild;
(c) critically endangered;
(d) endangered;
(e) vulnerable;
(f) conservation dependent.
Section 179 sets out what criteria are to be used to determine the category in which a species is to be listed. The “critically endangered” and “vulnerable” categories are defined in the following way:
179 Categories of threatened species
…
(3)A native species is eligible to be included in the critically endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria.
…
(5)A native species is eligible to be included in the vulnerable category at a particular time if, at that time:
(a)it is not critically endangered or endangered; and
(b)it is facing a high risk of extinction in the wild in the medium‑term future, as determined in accordance with the prescribed criteria.
…
In making these decisions, the Minister is required by s 189 to consider advice given by the Threatened Species Scientific Committee established under s 502 of the Act. Lists may be amended (s 184) and are to be publicly available (s 194). There is a detailed nomination and listing process set out in Subdiv AA of Pt 13, as well as a permit system relating to the killing or taking of individual members of a listed threatened species (Subdiv B). Holding a permit will avoid commission of any of the several offences created in Subdiv B (for eg, s 196 which creates an offence for taking or killing individual members of a listed threatened species, in a Commonwealth area): s 197. There will also be no offence if the action is taken “in accordance with” the arrangements, authorisations and agreements to which I refer below: see the terms of s 197.
Notably however s 38(1), and the undertaking of forestry operations in accordance with an RFA, is not an action which is set out in s 197 as one which avoids the operation of the provisions in s 196. It is a singular omission. The explanation may be that forestry operations do not occur in a “Commonwealth area” as that term is defined in s 525 of the EPBC Act, so that s 196 is unlikely to apply.
Part 4 of Ch 2: the exemptions and exceptions to Part 3
I turn now to consider the exceptions and exemptions to the combined regime of prohibitions in Pt 3 of Ch 2 and the approval regime in Ch 4.
Part 4 of Ch 2 of the EPBC Act is headed “Cases in which environmental approvals are not needed”. Section 38(1) is located in Pt 4, but to appreciate the context of s 38(1) it is necessary to look at the range of circumstances covered by Pt 4.
The exceptions or exemptions set out in Pt 4 cover a wide range of circumstances. Division 1 deals with actions covered by bilateral agreements. These are agreements between the Commonwealth and a State or Territory. The detail relating to the making of such agreements can be found in Pt 5 of Ch 3. These agreements reflect the Commonwealth’s agreement (through the Minister) to allow a State or Territory to use its own processes (of both management and authorisation) to approve conduct that would otherwise constitute the taking of an action in relation to a matter of national environmental significance.
Section 53(2) sets out specific matters concerning listed threatened species about which the Federal Minister must be satisfied before she or he can enter into a bilateral agreement:
53 Agreements relating to listed threatened species and ecological communities
…
(2)The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:
(a)the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b)the Minister is satisfied that the management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and
(c)the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and
(d)the Minister has had regard to any approved conservation advice for the species or community.
Where a bilateral agreement is “in operation” (see s 29(1)(c)), then an action “described in a provision of Part 3” (that is, actions that will or are likely to have a significant impact on one or more of the matters of national environmental significance with which Pt 3 deals) will not need approval under Pt 9. The text of s 29 provides the answer as to why that is so. Section 29(1)(b) sets out, as one of the conditions of the application of this exception, that:
[T]he action is approved in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited management process for the purposes of the bilateral agreement. (emphasis added)
As their names suggest, a “bilaterally accredited management arrangement” and a “bilaterally accredited management process” have both received accreditation from the responsible Minister. Pursuant to s 46(3)(b), the Minster may only give such accreditation if she or he is satisfied, amongst other things, that there has been or will be adequate assessment of the impacts that action approved in accordance with the management arrangement or authorisation process have or will have; or are likely to have on a matter of national environmental significance in Pt 3. The Minister must also be satisfied, pursuant to s 46(3)(c), that actions approved in this way will not have “unacceptable or unsustainable impacts” on protected matters.
In other words, the two processes of “bilaterally accredited management arrangement” and a “bilaterally accredited management process” are processes the scheme intends to be substitutes for the assessment and approvals process under Pt 9. Actions taken in accordance with these processes are, therefore, assessed in a different way, but they are still assessed by reference to the same underlying criteria as a controlled action governed by Pt 9.
Section 29(1)(e) then imposes the further condition that:
The action is taken in accordance with the bilaterally accredited management arrangement or the bilaterally accredited authorisation process. (emphasis added)
I return later in these reasons to explain the significance of the textual commonality between provisions such as s 29(1)(e) and s 38(1).
Division 2 of Pt 4 deals with actions covered by Ministerial declarations. By this Division, the responsible Minister is empowered to make declarations over a class of actions that she or he determines do not need approval under the regime in Pt 9 of the Act. The basis for such a declaration will be that the action has been “approved in accordance with an accredited management arrangement or an accredited authorisation process”: see s 32(a). If the declaration is in operation at the time the action is taken, then it can be taken without an approval under Pt 9, provided:
…the action is taken in accordance with the accredited management arrangement or accredited authorisation process.
Once again, the scheme contemplates the action is approved and regulated by a substitute regime: it is nonetheless regulated. Confirmation that approval of a class of actions by way of Ministerial declaration affords no less protection to matters of national environmental significance can be found in s 34A(a) which imposes a requirement that the Minister must be satisfied any declaration she or he makes “accords with the objects of this Act”. Subdivision C (in which s 34A is located) then also imposes a range of other preconditions on a Ministerial declaration, each of which is specific to a matter of national environmental significance. For example, s 34D(2) provides, in relation to listed threatened species:
34DDeclarations relating to listed threatened species and ecological communities
…
(2)The Minister may accredit a management arrangement or authorisation process under section 33 for the purposes of a declaration relating to a listed threatened species or a listed threatened ecological community only if:
(a)the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b)the Minister is satisfied that the management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species or community to which the declaration relates; and
(c)the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and
(d)the Minister has had regard to any approved conservation advice for the species or community.
Division 3 deals with another form of Ministerial declaration: namely, those concerning bioregional plans. These are made under s 176 of the Act. By s 37B, the same sorts of considerations (using the same language) as for Div 2 govern the making of such a declaration to exempt an action, with the addition of consideration of economic and social matters. By s 37G, which deals expressly with listed threatened species, the Minister’s power to make a declaration is constrained in the same way, and using the same language as it is under s 34D(2). Section 37 then provides that if an action is taken in a bioregion to which a declaration applies, the action does not need approval under Pt 9 if it is taken “in accordance with the plan”: (s 37(c)(ii)).
Division 3A deals with conservation agreements. This refers to agreements made under s 305 of the Act. Such agreements are not intergovernmental in nature, although s 305 may well permit the agreement to be intergovernmental. Its language refers only to agreements between the Commonwealth and “persons”. Section 304 describes the subject matter of such agreements:
304 Object of this Part
(1) The object of this Part is to provide for:
(a)conservation agreements between the Commonwealth and persons related to the protection and conservation of the following:
(i) biodiversity;
(ii)the world heritage values of declared World Heritage properties;
(iii)the National Heritage values of National Heritage places;
(iv)the Commonwealth Heritage values of Commonwealth Heritage places;
(v)the ecological character of a declared Ramsar wetland;
(vi)the environment, in respect of the impact of a nuclear action;
(vii)the environment in a Commonwealth marine area;
(viia)a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development;
(viii)the environment on Commonwealth land; and
(b)the effect of conservation agreements; and
(c)the publication of conservation agreements.
(2)Conservation agreements are agreements whose primary object is to enhance the conservation of matters referred to in paragraph (1)(a). They may relate to private or public land, or to marine areas.
Note:Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).
Of course, propositions about the usefulness of consequential reasoning are put at a level of generality, and will always involve, as Mason and Wilson JJ noted in Cooper Brookes at 321, questions of degree. In Esso Australia Resources Ltd v Federal Commissioner for Taxation [1998] FCA 1655; 83 FCR 511 at 518-519, Black CJ and Sundberg J (Finkelstein J agreeing at 565-6) cautioned about consequential reasoning in the following terms:
In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that Parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament.
This aspect of the Full Court’s reasoning was not the subject of any criticism by the High Court in overturning the Full Court’s conclusions. It was cited with approval by the Full Court in Connect East Management v Federal Commissioner of Taxation [2009] FCAFC 22; 175 FCR 110; at [41].
Accordingly the matters I set out below are not responsible for my conclusions, but they are nevertheless consistent with the view I have reached. There are consequences of VicForests’ construction which have contributed to my rejection of it, just as there are consequences of the applicant’s construction which have contributed to my rejection of that construction.
What the matters which follow also indicate is that the construction I adopt is the one which best advances the purposes of the EPBC Act, as I have set them out. Reasoning by reference to consequences can be seen as another way of testing various constructional choices against the identified purpose of the provision in question, read in the context of the purposes of the legislative scheme as whole. Reasoning by reference to consequences may also help elucidate the situation to which Gleeson CJ referred in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6]: namely that statutes involving comprises or striking balances between competing interests may not be susceptible to an assumption that the scheme has a singular purpose. Sometimes, teasing out the consequences of various constructions can assist in determining whether the provision in issue is one of those where there are competing interests and a balance to be struck, and how the statute strikes that balance. Indeed, it seems to me that s 38(1) is such a provision, as the competing arguments on the separate question reveal. Both by examination of the consequences of various arguments, as I set out below, and by recourse to the place of s 38(1) in the overall statutory scheme of the EPBC Act, read with the objects of that scheme, these consequential matters assist in confirming the construction I consider appropriate.
Consequences of VicForests’ construction
The most obvious consequence of VicForests’ contentions is that it may permit an action to be taken that has a significant impact on a listed threatened species, with the exemption in s 38(1) operating to prevent not only those persons such as the applicant with standing, but also the responsible Federal Minister, from being able to take any steps pursuant to the enforcement regime in the EPBC Act to prevent that occurring, or continuing. Senior counsel for VicForests frankly admitted as much during oral submissions.
Another consequence of VicForests’ approach is that the CAR Reserve System and management prescription systems in existence at the time an RFA was concluded, and only those expressly referred to in an RFA as imposing specific prohibitions are what VicForests says govern the conduct of forestry operations. While it is true that the State systems and processes for environmental protection and biodiversity conservation as they exist at the time an RFA is concluded are what is “accredited” by the Commonwealth, that does not render the protections static. The clauses concerning the Baw Baw Frog in the Central Highlands RFA to which I have referred above are a good example. There is no evidence whether there is now an action statement and a recovery plan for this species. It would appear VicForests’ construction suggests that any contravention of such an action plan or recovery statement in timber harvesting of particular areas within the Central Highlands RFA would have no effect on the exemption given by s 38(1), because those requirements were not expressly inserted into the Central Highlands RFA. That is, with respect, an approach which locks down the federal system of environmental protection and biodiversity conservation at a date which may already be 20 years past, as it is for the Central Highlands RFA. I do not accept that was Parliament’s intention with the EPBC Act. Rather, the scheme as I have described it earlier in these reasons is intended to be dynamic, adaptive and responsive. Threatened species as a matter of national environmental significance are a good example. As the evidence reveals about the circumstances facing the Leadbeater’s Possum, changes in habitat availability, and other impacts on a species can mean a species can move into a more threatened category and require greater levels of protection. The purpose of listing species such as the Leadbeater’s Possum and the Greater Glider, both affected by forestry operations because of their dependency on hollow bearing trees and forest habitat, could be negated if adjustments responsive to the new threat levels (in management prescriptions outside dedicated reserves and incorporating the contents of action statements and recovery plans) were not considered to form part of the controls on RFA forestry operations, through Victoria’s management prescriptions for forestry operations.
Consequences of the applicant’s construction
A matter raised by VicForests, correctly, is the bifurcation that results from the applicant’s construction in terms of the responsibilities of those undertaking forestry operations and those on whom an RFA may be said to impose obligations. What precisely is the person or entity taking the action supposed to do? The consequence of the applicant’s construction in the present case (and assuming in its favour proof of the alleged significant impact) is that VicForests, as the entity responsible for undertaking forestry operations on public land in Victoria, not only cannot undertake any further forestry operations in the identified coupes, but is exposed to the enforcement regime in respect of its past forestry operations in identified coupes. Yet, as the applicant appeared to accept, VicForests as a statutory agency with particular functions, has no control over the State’s conduct in pursuance of cl 36 of the Central Highlands RFA, even if (although it is unclear on the evidence) it could be suggested it may have some input into the cl 36 reviews. Compliance may take a period of time over which, again, the forestry operator has no control and yet it must conduct its forestry operations without certainty about the application of s 38(1) to those operations. Historical non-compliance with a clause such as cl 36 will remain a fact, no matter what is done prospectively – and on the applicant’s construction, the State’s failures to comply with obligations such as those in cl 36 would render past forestry operations that have had the requisite significant impact unlawful, even though at the time of the forestry operation VicForests were not aware of those failures and had no control over them.
These kinds of consequences do not attend the construction which I consider to be correct. On that construction, the person undertaking the action (here VicForests) must ensure that its forestry operations are compliant and consistent with the requirements of the RFA, where they exist: the prohibition on timber harvesting in rainforest areas being a straightforward example. Compliance or consistency with the requirements from time to time of management prescriptions, action statements and recovery plans being another example that would need to be understood in the concrete situation of a particular challenge. Those are matters for which VicForests as the entity undertaking the forestry operations is responsible, and can control. The environmental protection and conservation requirements are in writing, in identifiable and well-known sources such as in timber release plans, and in the Victorian Code of Practice for Timber Production: see Tate JA in MyEnvironmentInc v VicForests [2013] VSCA 356; 42 VR 456 (Warren CJ, Tate JA and Garde AJA) at [32], [36] and [42]. VicForests is not reliant on any conduct of the State of Victoria, nor the discharge of any direct responsibilities under the RFA by the State of Victoria, to ensure that in conducting its forestry operations it complies with these requirements.
I emphasise again that the specifics of what would be required for compliance in any given situation are not the subject matter of this proceeding.
Why clause 36 is not a compliance clause
I accept the applicant’s submissions about the importance of the five-yearly reviews required by clause 36 to the scheme of the Central Highlands RFA, and indeed more broadly to the scheme of RFAs. The values protected by the CAR Reserve System are not static, and any system of environmental protection and conservation needs to be responsive to new or changed threat levels, and needs also to be adaptive in the way protection and conversation objectives are achieved. A good example of the need for responsiveness and adaptation is the one given by the applicant (taken from the Conservation Advice for the Leadbeater’s Possum, which was in evidence) – the catastrophic effects of the 2009 fires in the Central Highlands region which were found to have burnt 34-36% of potential Leadbeater’s Possum habitat and 45% of the best habitat within montane ash forest. A static CAR Reserve System, including static harvesting prescriptions, would be unable to address an event like this, which on any view is likely to affect the sustainability of the population of Leadbeater’s Possum.
I also accept that Parliament has recognised the importance of the reviews through the requirement in s 10(6) of the RFA Act that they be tabled.
Finally, it is an agreed fact for the purposes of the determination of the separate question that none of the first, second or third reviews were carried out during the periods stipulated in the Central Highlands RFA. In other words, non-compliance with cl 36 is an agreed fact. As senior counsel for VicForests submitted, to admit that fact does not go so far as to admit that the State of Victoria has not undertaken any reviews of the RFA at all, outside the time periods specified in the Central Highlands RFA.
Nevertheless, for the purposes of the separate question, the important agreed factual proposition is that there is admitted, and clear, non-compliance with cl 36 of the Central Highlands RFA.
The difficulty I see in the applicant’s argument is the absence of a sufficient connection between the conduct of forestry operations and the alleged non-compliance. As I explain elsewhere in these reasons, when it is recalled that the undertaking of forestry operations is the “action” for the purposes of s 523 of the EPBC Act, and for the purpose of all the relevant provisions of the EPBC Act, the operation of s 38(1) is properly restricted to an examination of those parts of an RFA which regulate the undertaking of forestry operations. If those operations are in compliance with the scheme of regulation established by the RFA (in express terms and by picking up the Victorian regulatory scheme), then the exemption applies.
Clause 36 is a requirement imposed by the Commonwealth on the State of Victoria, and to which Victoria agreed, as part of the accreditation process of the RFA. As I have attempted to explain above, it has a critical role in preserving the currency, appropriateness and effectiveness of the measures required by the RFA to ensure that forestry operations are undertaken in a sustainable way which does not have significant impacts on any matter of national environmental significance, included listed threatened species. However it is not in itself a measure governing the undertaking of forestry operations.
It is not in the same category as the clauses of the RFA which set out, for example:
·geographical boundaries of areas in which no logging can occur;
·prohibitions on logging certain kinds of forest such as rainforest;
·the requirement for forestry operations to be regulated by management prescriptions outside CAR reserves, including by the terms of Victoria’s Code of Practice for Timber Production.
Further, I do not accept the applicant’s submission that the regulatory contents of the Central Highlands RFA only look forward five years. As I have attempted to show, by picking up a changing and adaptive system of State regulation, the Central Highlands RFA contemplates that “on the ground” prescriptions will regulate forestry operations so as to protect the environment and conserve biodiversity, and will be adaptive and responsive to changing circumstances of – for example – the protection of threatened species.
Does Brown compel a particular answer to the separate question?
All parties and interveners relied on the Full Court’s decision in Brown. The view I take of the Full Court’s decision is that advanced by the Commonwealth and the State, which in large part aligns with the submissions of the applicant.
Brown was a proceeding concerning the Tasmanian RFA and forestry operations in a state forest in Tasmanian, called Wielangta. The applicant sought to restrain the conduct of the forestry operations in certain areas of Wielangta on the basis that those operations would contravene s 18 of the EPBC Act in relation to three listed threatened species; the swift parrot, the broad tooth stag beetle and the Tasmanian wedge-tailed eagle. The appellant had contended at trial (and on appeal) that the exemption in s 38(1) did not apply to the impugned forestry operations because those operations were not “in accordance with” the Tasmanian RFA and in particular were not in accordance with cl 68 of the Tasmanian RFA. Clause 68 was contained in Pt 2 of the Tasmanian RFA, which like Pt 2 of the Central Highlands RFA, was expressed not to impose binding obligations on the parties to the RFA. At the time of trial it provided:
The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions.
All three species were listed in Attachment 2.
The Tasmanian RFA was amended after the trial judge gave judgment for the applicant at first instance and while the appeal by Forestry Tasmania was on foot. It was amended on 23 February 2007. Clause 68 was amended: see Brown at [80].
The amended cl 68, at the time the matter came before the Full Court, read:
The parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities.
There were a series of other amendments to clauses which featured in the trial judge’s reasons, but they need not be set out here.
The Full Court held at [69] and [80] that the amended cl 68 “more clearly says what we think it means in its original form”. In other words, the Full Court did not find that the amendments had changed the meaning of cl 68.
The applicant submitted, and I accept, that the Full Court’s conclusion on the arguments on the appeal about the effect of cl 68 of the Tasmanian RFA is expressed at [59] of the joint reasons for judgment:
The respondent successfully contended before the primary judge that s 38 of the Act did not exempt the appellant from the requirement to obtain an approval before taking action covered by s 18 of the Act, because cl 68 of the RFA required the State to in fact protect the three species and CAR does not in fact protect them. The question is whether cl 68 does require the State to protect the species in this way. In our view it does not. Clause 68 does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection.
VicForests and the interveners, and also the applicant, pointed to subsequent passages in the Full Court judgment as also being integral to its reasoning. All agreed that [63] was critical:
The fact that the State’s obligations under Part 2 of the RFA are expressed to be unenforceable points against the view that by cl 68 the State warrants that CAR will in fact protect the species. It follows that satisfactory performance of the State’s obligations can only be measured by the parties, the sanction for inadequate performance by the State (in the Commonwealth’s opinion) being termination of the agreement under cl 102.
VicForests also emphasised the Court’s overall conclusion at [68]:
For the foregoing reasons we are of the view that the only basis propounded in ground 8 in the amended application, namely that s 38 does not exempt the appellant from Pt 3 of the Act because in breach of cl 68 of the RFA the State has not in fact protected the species in Wielangta, fails. The second limb of cl 68 should be construed in the same manner as the first.
I accept the following propositions put by the Commonwealth in relation to the Full Court decision in Brown (using the language used in the Commonwealth’s written submissions):
(a)“The reasoning of the Full Court in Brown stands against the RFA Act being directed to the mischief of a State’s non-compliance with one or more non-binding provisions of an RFA (noting, of course, that it was Sch 1 to the RFA Act which inserted the current terms of s 38 into the EPBC Act).” (my emphasis added)
(b)“The reasoning of the Full Court in Brown stands against the proposition that, in enacting s 6(4) and s 38, the legislature overlooked, through inadvertence, expressly dealing with the legal effect of a State’s non-compliance with any non-binding provisions of an RFA. In Brown, the Full Court held that advertent features of the statutory scheme were that (i) performance of parties’ obligations under RFAs would be sorted out by them (including, potentially, by resort to termination as the only sanction for non-performance); and (ii) non-compliance by a State with any non-binding obligation under an RFA would not defeat the carve-out effected by s 38 (subject, of course, to any termination by the Commonwealth).”
(c)In Brown the Full Court at [68] rejected the argument that, if the State of Tasmania was in breach of a non-binding obligation under the Tasmanian RFA, s 38 did not exempt the operations of a third party (Forestry Tasmania) from Pt 3 of the EPBC Act.
I consider the State’s written submissions at [53] – [56] make the same points.
The applicant’s written submissions on Brown were as follows:
38.Properly understood, Forestry Tasmania is not authority for the proposition that breach of a clause of an RFA is irrelevant to whether s 38(1) of the EPBC Act or s 6(4) of the RFA Act will supply an exemption from Part 3 of the EPBC Act. Any suggestion that [63] of the Full Court’s reasons (where the Court said that “unsatisfactory performance of the State’s obligations can only be measured by the parties”) might support the respondent’s argument in this case should be rejected on the basis that the Full Court’s proposition must be read in the context of the Court’s reasons.
38.1.That context indicates that the Court was stating that the effectiveness of the CAR system in achieving protection of the protected species was a matter that could only be measured by the parties. That is to say, the effectiveness of the mechanisms chosen to protect flora and fauna were matters for the parties to determine.
38.2.The Full Court did not say that breach of a clause of an RFA was irrelevant to the operation of s 38(1) of the EPBC Act or s 6(4) of the RFA Act.
38.3.On the facts of that case, the Full Court found that there was no breach of the relevant clause of the RFA.
39.The construction of cl 68 of the Tasmanian RFA is entirely irrelevant to the present case. The applicant’s case is simply that the terms of the RFA regime, once agreed by the parties, must be complied with in full in order to attract the exemption in s 38(1) of the EPBC Act and 6(4) of the RFA Act.
40.That submission is in fact supported by Forestry Tasmania. As the Full Court said:
… the [EPBC] Act … does not apply to forestry operations in RFA regions … the regime applicable in those regions is found in the RFAs themselves.
41.The Court did not say that the individual provisions of a relevant RFA were applicable to RFA forestry operations – it said that the RFA regime was applicable in those regions.
(Footnotes omitted.)
I consider those submissions do not give appropriate weight to the Full Court’s emphasis on the importance of the identified obligation in the Tasmanian RFA being an obligation imposed on the State, which was expressed to be non-binding.
Those parts of the Full Court’s reasoning were critical to its conclusion and as a single judge I consider I should follow them, without necessarily having to spend a great deal of time exploring whether they are properly characterised as part of the ratio of the decision, or “seriously considered dicta”. There is no doubt they are well within the latter category on any view. VicForests and the Commonwealth in particular referred the Court to the High Court’s decision in Farah Constructions Pty Ltd and others v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134] and [135]. Paragraph [135] of that decision expressly concerns the obligations of intermediate appellate courts (there, the NSW Court of Appeal) not to depart from “decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong”. In Farah, the Court referred to the decision in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), which concerned the Corporations law, hence the reference to “uniform law”.
However, I accept that the High Court’s statement at [134] was more broadly expressed:
It is true that those statements were dicta in the sense that the case was decided on the second limb of Barnes v Addy. But, contrary to the Court of Appeal’s perception, the statements did not bear only “indirectly” on the matter: they were seriously considered dicta.
This statement, made in relation to dicta of the High Court and its treatment by the NSW Court of Appeal, does support the proposition put by the Commonwealth.
The core reasoning of the Full Court presents a significant impediment to the applicant’s arguments because of the nature and content of clause 36 of the Central Highlands RFA and its fundamental similarity with cl 68 of the Tasmanian RFA, in particular that neither of those clauses concerned the actual conduct of forestry operations.
In contrast, I consider that the construction of s 38(1) and s 6(4) which I prefer is not inconsistent with the Full Court’s approach in Brown. The arguments were put on a different basis in this proceeding, and as is apparent, I consider the position adopted by the Commonwealth in the current proceeding, when the Commonwealth also intervened in Brown, to be of significance.
One observation by the Full Court in Brown (at [61] of the reasons) on which VicForests in particular relied related to a passage from the Explanatory Memorandum to the Environment Protection and Biodiversity Conservation Bill 1998 (at pp 38-9 [113]):
The object of this subdivision recognises that in each RFA region a comprehensive assessment is being, or has been, undertaken to address the environmental, economic and social impacts of forestry operations. In particular, environmental assessments are being conducted in accordance with the Environment Protection (Impact of Proposals) Act 1974. In each region, interim arrangements for the protection and management of forests are in place pending finalisation of an RFA. The objectives of the RFA scheme as a whole include the establishment of a comprehensive, adequate and representative reserve system and the implementation of ecologically sustainable forest management. These objectives are being pursued in relation to each region. The objects of this Act will be met through the RFA process for each region and, accordingly, the Act does not apply to forestry operations in RFA regions.
(Emphasis added).
Having emphasised the last sentence of the explanatory memorandum, the Full Court expressed the following opinion:
In our view the emphasised passage indicates that the Act does not apply to forestry operations in RFA regions, and the way in which the objects of the Act will be met in relation to those operations is to be ascertained by reference to the relevant RFA.
That statement cannot be read literally because, of course, s 38 itself is in the EPBC Act, and must be given effect, as must s 42. There may well be other parts of the EPBC Act which still apply to forestry operations – the offence provisions in Subdiv B of Pt 13 are an example, if the forestry operations are undertaken in a Commonwealth area. This Court’s jurisdiction, arising under s 475, is still applicable.
Rather, I understand this statement of the Full Court to mean that the controlled action provisions and the entire Ministerial approval regime in Pt 9 of Ch 4 of the Act are not applicable, and further that the prohibitions in Pt 3 of Ch 2 are also not applicable, provided the exemption in s 38 is engaged. That is the way that the applicant and the interveners submitted the passage should be construed, and I agree.
Similarly, both parties and the interveners relied on the following passage from the Court’s reasons at [62], where the Court expressed its conclusion on the meaning of the Explanatory Memorandum to the RFA Act:
Again, the message is that the Act (ie the Environmental Protection and Biodiversity Conservation Act) does not apply to forestry operations in RFA regions, and that the regime applicable in those regions is found in the RFAs themselves.
For the same reasons, this statement by the Full Court cannot be read literally, or too broadly. I reject VicForests’ submissions that this passage (and the earlier one at [61] of the Full Court’s reasons) should be taken to mean that the Full Court in Brown held that the conduct of RFA forestry operations was in all circumstances immune from the provisions of the EPBC Act (including the responsible Minister’s own powers of regulation).
Both parties and both interveners agreed that this passage confirmed that the regulatory regime established by an RFA was intended to be a substitute regime for that in the EPBC Act. They differed on the extent of that substitution and its consequences. These passages from the Full Court reasons simply do not address that question, as the Full Court in Brown did not need to do so.
Is there any different effect between s 38(1) and s 6(4)?
The separate question identifies the construction issue by reference to both s 38(1) and s 6(4). Their terms are identical. For the reasons of legislative history that I have set out above, their purpose is identical. The context for the current form of s 38(1) is not entirely derived from the RFA Act, since s 38(1) existed at the time the EPBC Act was enacted. However, there is no inconsistent or different context arising from the enactment of s 6(4): rather, its effect was to recognise the full effect of the implementation of the RFA strategy across Australia, as contemplated by the NFPS.
My conclusion on the correct construction of s 38(1) of the EPBC Act applies to s 6(4) of the RFA Act. No party or intervener sought to give s 6(4) any additional or different work to do from s 38(1). The applicant’s statement of claim referred to both provisions, which is why the parties put both into the separate question. Senior counsel for VicForests explained during oral argument that this inclusion has no practical effect:
We say that they are duplicative. They stand or fall together, and that’s why it’s appropriate that the separate question has referred to both of them.
CONCLUSION
I noted at the start of these reasons that my conclusion means that the separate question cannot be answered favourably to the applicant, but that the answer needs some qualification. I now explain why that is so.
During the case management process concerning the agreed statement of facts, the applicant made the following written submission:
Central to the exercise of judicial power is that a judicial determination “includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy”. Because of the requirement that judicial power must finally determine a controversy between the parties, a Court will not answer separate questions in the absence of a sufficient factual foundation. To do so may otherwise result in the court answering a hypothetical question or providing an advisory opinion, both of which are antithetical to the exercise of judicial power.
In support of that submission, the applicant relied on Bass v Permanent Trustee [1999] HCA 9; 198 CLR 334 at [45], [47] and [51] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). VicForests did not dispute the correctness of the submission made.
I consider that the facts as agreed provided a sufficient basis to determine the controversy between the parties about whether the agreed non-compliance with cl 36 of the Central Highlands RFA, is capable of rendering the exemption in s 38(1) inapplicable to the undertaking by VicForests, in the past and in the future of forestry operations in the identified coupes within the Central Highlands RFA region. That controversy can be determined without any agreed facts about whether those forestry operations will, or are likely to have, a significant impact on the Leadbeater’s Possum or the Greater Glider. I considered the facts as agreed were also sufficient to determine the controversy between the parties on this matter as to VicForests’ past forestry operations in the identified coupes.
What I do not consider the agreed facts can support, on a proper construction of s 38(1) of the EPBC Act, is a determination that VicForests’ past and proposed forestry operations in the identified coupes have the benefit of the exemption in s 38(1) on the basis that those operations have been, and will be undertaken in conformity with the Central Highlands RFA in the sense I have explained in these reasons that s 38(1) requires. There are no agreed facts about that issue because it is not raised by the applicant in this proceeding. A determination by the Court, which purports to bind the parties, would concern a hypothetical matter. As the State submitted, it is simply not raised in this proceeding.
In Bass at [49], the majority said:
As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
An answer to the separate question which extended beyond the applicant’s reliance on cl 36 of the Central Highlands RFA as the source of non-entitlement to the exemption in s 38(1) would be incompatible with the Court’s judicial function. The Court’s answer to the separate question as stated must, in my opinion, reflect this distinction. The parties and the interveners will be given an opportunity to address how the question might be answered to reflect this conclusion.
It would seem to me, although I will hear the parties and interveners on this, that the answer to be given nevertheless means that the application must be dismissed because, with an answer to the separate question unfavourable to the applicant, the Court cannot grant any of the relief sought.
The parties will be given an opportunity to confer and, based on the Court’s reasons for judgment, to make submissions on what form a qualified answer should take.
If either party, or either of the interveners, wish to make submissions in relation to my conclusion that a qualified answer is necessary, they have leave to include those matters in the submissions that are filed.
The Court will also give the parties and the interveners an opportunity to make submissions on the question of costs, in the absence of any agreed position being put to the Court.
I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 2 March 2018
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