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Jacob v Save Beeliar Wetlands (Inc)

Jacob v Save Beeliar Wetlands (Inc)

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126

CORAM: McLURE P
BUSS JA
NEWNES JA

HEARD: 2 MAY 2016

DELIVERED : 15 JULY 2016

FILE NO/S: CACV 3 of 2016

BETWEEN: THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT
First Appellant
ENVIRONMENTAL PROTECTION AUTHORITY
Second Appellant
COMMISSIONER OF MAIN ROADS
Third Appellant
AND
SAVE BEELIAR WETLANDS (INC)
First Respondent
CAROLE DE BARRE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482
File No  :CIV 2445 of 2015

Catchwords:

Judicial review - Jurisdictional error - Proper construction of Environmental Protection Act 1986 (WA) - Whether EPA's published policies implied mandatory relevant considerations - Whether administrative procedures required EPA to consider its published policies - Whether failure to consider published policies without giving reasons is legal unreasonableness - Whether EPA failed to ask a required question

Legislation:

Environmental Impact Assessment (Part IV Division 1) Administrative Procedures 2002 (WA), cl 5, cl 6, cl 7, cl 9
Environmental Protection Act 1986 (WA), s 3, s 4A, s 5, s 15, s 26, s 27, s 28, s 29, s 30, s 31, s 37B, s 38, s 39A, s 40, s 44, s 45, s 100, s 101, s 106, s 107, s 108, s 109, s 110, s 122, s 123

Result:

Appeal allowed
Notice of contention dismissed

Category: A

Representation:

Counsel:

First Appellant               :     Mr G T W Tannin SC & Mr C S Bydder
Second Appellant          :     Mr G T W Tannin SC & Mr C S Bydder
Third Appellant             :     Mr G T W Tannin SC & Mr C S Bydder
First Respondent           :     Mr M D Howard SC & Mr H H Jackson
Second Respondent      :     No appearance

Solicitors:

First Appellant               :     State Solicitor for Western Australia
Second Appellant          :     State Solicitor for Western Australia
Third Appellant             :     State Solicitor for Western Australia
First Respondent           :     Castledine Gregory Law and Mediation
Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

McLURE P: This is an appeal from the decision of the Chief Justice quashing the report and recommendation of the Environmental Protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASCA 126
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

In the case of Jacob v Save Beeliar Wetlands (Inc), the appellant sought judicial review of a decision made by the Environmental Protection Authority (EPA). The EPA had declined to designate certain wetlands as protected areas under the Environmental Protection Act 1986 (WA). The appellant argued that the EPA's decision was legally unreasonable because it failed to consider published policies without providing reasons. The High Court of Australia was tasked with determining whether the EPA's failure to consider its published policies constituted a legally unreasonable decision.

The legal issues before the court involved whether the EPA's published policies implied mandatory relevant considerations and whether the EPA was required to consider those policies as part of its administrative procedures. The court also needed to determine if the failure to consider the published policies without providing reasons amounted to legal unreasonableness, specifically if it constituted a failure to ask a required question. The appellant contended that the EPA's omission to explain why it did not consider the published policies rendered the decision legally unreasonable.

The court held that the EPA's failure to consider its published policies without providing reasons did not necessarily render the decision legally unreasonable. The court found that the EPA was not obligated to consider the published policies, and therefore, there was no requirement for the EPA to provide reasons for not considering them. The court emphasised that the EPA's decision was not rendered unreasonable simply because it did not consider the published policies without explanation. The court concluded that the EPA's decision was not legally unreasonable, and the appeal was dismissed.

In summary, the High Court of Australia held that the EPA's failure to consider its published policies without providing reasons did not amount to legal unreasonableness, as the EPA was not obligated to consider the published policies. The court found that the EPA's decision was not legally unreasonable, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process‑related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision‑maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67]. Although s 44 of the EPA Act imposes a duty on the EPA not a statutory discretionary power, that may not be a complete answer, as explained by Gageler J in Li as follows:[R]easonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed [92]. The proper course is to focus on the particular condition for which the first respondent contends. The complaint is not that the EPA failed to have regard to the Policies. The complaint as formulated in the ground is that 'without a reason' it did not have regard to its Policies. That is, in effect, a claim that it is an implied condition (of validity) of the exercise of the duty in s 44(2) that the EPA give reasons for why it did not have regard to its Policies. There can be no obligation to give an explanation about why it did not take into account something it was not obliged to. Mindful of the obstacle presented by a conclusion that the Policies were not mandatory relevant considerations, the first respondent further developed its argument in oral submissions as follows. Its starting point is selective reliance on parts of Position Statement 9. In particular, the first respondent relies on the EPA's statement in Position Statement 9 that critical assets must be fully protected and conserved to fulfil the EPA's statutory and policy requirements (G67) and says the statutory requirements to which the EPA refers are those in s 4A and s 15 of the EPA Act (ts 19). The first respondent's broader proposition is that when the EPA takes the view that there are some environmental assets which must be fully protected and conserved, it is making express what is required by s 4A and s 15 of the EPA Act.