Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2)

[2008] FCA 1521

FEDERAL COURT OF AUSTRALIA

Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No. 2) [2008] FCA 1521

ADMINISTRATIVE LAW – reliance by a Minister on Departmental advice and recommendations – whether a decision was required to be made by a Minister personally – Minister advised that a statutory requirement was not applicable – whether written reasons prepared later should be regarded as the real reasons for the decision at the time it was made – whether a presumption of regularity applies – whether the decision could or should be set aside in part – Minister wrongly advised – written reasons prepared later not the reasons present to the mind of the Minister when the decision was made – legal error established – no reason to withhold relief as a matter of discretion – decision set aside in its entirety.

WORDS AND PHRASES – ‘presumption of regularity’

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, 16
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3A, 16, 17B, 18, 18A, 20, 20A, 23, 24A, 26, 27A, 67, 68, 75, 82, 87, 102, 103, 104, 105, 130, 131, 133, 136, 139, 140, 391, 515, 523, 524, 524A, 525, 527

Bushell v Environment Secretary [1981] AC 75
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Kingham v Sutton [2002] FCAFC 107; 114 IR 137
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Aboriginal and Torres Strait Island Affairs v State of Western Australian (1996) 67 FCR 40
Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469
Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723
Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2003) 133 FCR 190
Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548
Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363
Tickner v Chapman (1995) 57 FCR 451
United Airlines v Secretary, Department of Transport and Communication (1990) 26 FCR 598

PHOSPHATE RESOURCES LIMITED v MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS

WAD 135 OF 2007

BUCHANAN J
13 OCTOBER 2008
SYDNEY (PART-HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 135 OF 2007

BETWEEN:	PHOSPHATE RESOURCES LIMITED Applicant
AND:	MINISTER FOR MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	13 OCTOBER 2008
WHERE MADE:	SYDNEY (PART-HEARD IN PERTH)

THE COURT ORDERS THAT:

The decision of the Minister for the Environment and Water Resources, dated 27 April 2007, refusing approval to the applicant for expanded mining on Christmas Island, which was referred for consideration pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 1 November 2001 and identified as EPBC 2001/487, is set aside.

THE COURT DIRECTS THAT:

1.The applicant is to file any application for costs within 14 days, supported by a written submission.

2.The respondent is to file any written submission in opposition within a further 14 days.  

3.The applicant may file a written submission in reply, if necessary, within a further 7 days.  

4.The question of costs will be decided on the basis of the written submissions unless a party expressly seeks a further oral hearing.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 135 OF 2007

BETWEEN:	PHOSPHATE RESOURCES LIMITED Applicant
AND:	MINISTER FOR MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Respondent

JUDGE:	BUCHANAN J
DATE:	13 OCTOBER 2008
PLACE:	SYDNEY (PART-HEARD IN PERTH)

REASONS FOR JUDGMENT

BUCHANAN J:

PHOSPHATE MINING ON CHRISTMAS ISLAND

1. According to evidence given in the present case by Lai Ah Hong, the Managing Director of the applicant, Phosphate Resources Limited (‘PRL’), phosphate mining began on Christmas Island over 100 years ago, in the late 1890s.  It was a business operation of the Clunies Ross and Murray families.  In 1948 the British Phosphate Commissioners took over the management of mining on Christmas Island as agent for the Australian and New Zealand governments.  In 1982 the Phosphate Mining Company of Christmas Island, wholly owned by the Australian government, took over the mining operations from the British Phosphate Commissioners.  The mining operations were closed in 1987 and a liquidator was appointed but the local union, the Union of Christmas Island Workers, was instrumental in the re-establishment of mining operations in 1990.

2. PRL was incorporated, under the name of Phosphate Resources NL, on 12 June 1989.  Its initial shareholders were members of the union.  In a joint venture with one of its subsidiaries and Cluff Engineering, PRL acquired the assets of the previous operator.  PRL subsequently bought out Cluff Engineering’s interest.  PRL was granted a mining lease in 1998 for 21 years.  Although the current mining lease therefore expires in 2019 PRL’s assessment is that ‘there are insufficient high grade phosphate resources in this lease to last for the balance of the term of the lease’.

   THE APPLICATION FOR NEW MINING LEASES

3. PRL approached the Australian government about an extension to its mining operations early in the current lease term, in 2001.  It proposed mining in nine additional areas on Christmas Island.  Modifications were subsequently made to the proposal, particularly to avoid identified environmental effects, with the result that the area directly encompassed by the original additional mining proposal of 403.7 hectares was reduced to 256.3 hectares.  PRL emphasised that an area of this size represented less than 2% of the Christmas Island land mass.

4. PRL estimated that approving its application would extend export operations, from a projected three to five years, to ten years.  It said, in support of the proposal:

   ‘If the mining proposal does not proceed and the current mining operations are required to close within three to five years, there will be catastrophic effects on the economic and social environment of Christmas Island.  There will also be significant impacts on the Australian economy.’

   and:

   ‘The unemployment and subsequent population loss that will flow from the cessation of mining will make the maintenance of the metaphysical and built elements of Christmas Island’s cultural heritage untenable.  As a result the unique cultural heritage of the Island will be seriously impacted.  The loss of population is likely to lead to the collapse of the vibrant religious and cultural activity.  Similarly depopulation will result in the loss of the inputs of CIPs employees into the social fabric and social cohesion of the Island.’

   (CIP is Christmas Island Phosphates, the name under which PRL trades.)

5. The proposal required assessment against the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Act’), which obliged detailed attention to the environmental impact of the mining proposal. PRL contended in an environmental impact statement prepared for that purpose that ‘the impacts of the modified proposal are within the limits of environmental acceptability and will have a number of positive benefits for the whole environment of Christmas Island including both the natural and social and economic environment’.  It said:

   ‘In the proponent’s view the proposal in its final form represents a balanced and justifiable outcome.  The proposal is firmly based on the proponent’s extensive experience in its current mining and rehabilitation operations, a comprehensive research program and sound scientific principles.  It offers a balance of beneficial socio-economic security for the Island’s unique community, benefits for the broader Australian economy and enhanced outcomes for the conservation of the Island’s biodiversity.’

6. A decision refusing approval was made on 27 April 2007 by Mr Turnbull, who was then Minister for the Environment and Water Resources and had portfolio responsibility for the administration of the Act. (Substitution of the Minister who now has portfolio responsibility for the administration occurred by consent for the purpose of the proceedings – s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). The decision made on 27 April 2007 had significant consequences for businesses and people on Christmas Island.

7. The way in which the proposal was to be assessed, and the matters which the Minister was required to take into account, were directed by the Act.  An assessment of, and a decision about, the application for extended mining operations on Christmas Island required judgments to be made about a range of factors, some of which needed to be balanced against others.  One of the matters which the Minister was required to take into account concerned the environmental impact statement produced by PRL in accordance with guidelines provided by the Department.  The environmental impact statement advanced a case, on balance, in support of the proposal, particularly having regard to its social and economic benefits; matters which the Minister was directed by the Act to consider.

8. The Minister refused approval in accordance with recommendations made to him in two departmental briefs and an assessment report which was required by the Act to be made by the Department and provided to him.  The economic and social benefits of the proposal were there said to be outweighed by considerations concerning the environment and biodiversity. 

   THE CHALLENGE TO THE MINISTER’S DECISION

9. After the Minister made his decision PRL asked for a written statement of his reasons.  On 14 June 2007, about six weeks after the decision was made, the Minister signed a Statement of Reasons for his decision.  That written Statement of Reasons set out a long series of explicit factual findings and judgments said to have been made by the Minister in the course of coming to his final decision.  At the outset, and until quite late in the proceedings, PRL accepted that the Statement of Reasons should be accepted as identifying the factual conclusions reached by the Minister and explaining his reasons for decision based on those conclusions.  It mounted its case, and presented its submissions in chief, both in writing and orally, on that important premise.

10. The ADJR Act permits a review in this Court of the decision made by the Minister. The grounds upon which such a decision may be challenged are set out in s 5 of the ADJR Act. They involve challenges on legal grounds. They do not include challenges merely to findings of fact or the assessment of merits. Those distinctions and limitations are ones which were largely ignored in the challenges which PRL initially sought to make to the Minister’s decision.

11. It would be tedious, unproductive and unnecessary to attempt to illustrate, much less discuss in detail, all the ways in which the limitations upon the scope of the proceedings, and hence the matters which the Court may take into account, were not observed by PRL as it originally formulated its arguments.  Many of the challenges which PRL sought to make initially were, in truth, challenges to the findings of fact set out in the Statement of Reasons and to the explanation there given about the merits of PRL’s application.  Later in this judgment I will explain in broad outline the challenges which were made to the decision, based on an acceptance of the Statement of Reasons as an accurate description of the basis for the decision. 

12. During the course of oral submissions for the respondent, and after the respondent had put its case in chief by both written and oral submissions, PRL changed its position.  It withdrew its acceptance that the written Statement of Reasons should be regarded as accurately stating the Minister’s actual reasons for decision.  That change of position was of considerable significance.  It required attention, in the first instance, assuming it was to be permitted, to whether the parties should have an opportunity to supplement their cases.  I shall explain in more detail how the change in position came about, the procedural steps taken in response to it and the additional issues which were thereby generated.

    THE EVIDENCE

13. The proceedings were commenced by application and statement of claim.  However, the respondent successfully resisted PRL’s proposal that the proceedings should continue on the pleadings.  Instead French J decided on 27 September 2007, in accordance with the respondent’s desires, that ‘the matter should proceed by way of affidavit and written submissions’ (Phosphate Resources Limited v Turnbull, Minister for Environment and Water Resources [2007] FCA 1507 at [10]).

14. Before the hearing commenced the respondent filed a large number of documents.  PRL later filed two affidavits sworn by Lai Ah Hong, the Managing Director of PRL.  The respondent filed two affidavits sworn by Gerard Patrick Early, Deputy Secretary of the Department of the Environment and Water Resources.  The first of Mr Early’s affidavits also attached a further number of documents.

15. The evidence filed to that point disclosed the material which was before the Department when it assessed PRL’s application, the briefs which were given to the Minister before he made his decision on 27 April 2007 and the written Statement of Reasons provided to PRL on 14 June 2007.  That was the evidentiary material on which the case went to a hearing.

16. Later, in circumstances to which it will be necessary to refer in greater detail, further evidence was filed.  It consisted of a further brief given to the Minister shortly before he signed the Statement of Reasons and a third affidavit by Mr Early sworn on 6 August 2008.  That affidavit sought to identify certain elements of departmental practice and to explain some ‘errors’ in the material provided to the Minister before he made his decision on 27 April 2007.

    THE STATUTORY SCHEME

17. A number of amendments were made to the Act shortly before the Minister’s decision was made.  Some, due to the operation of transitional provisions, did not apply to the decision.  Further, some aspects of the assessment process were also governed by earlier provisions which applied when those aspects required attention.  Those complexities can largely be put to one side because no change of substance, which might affect the outcome of the case, occurred with respect to matters which require attention.  I will endeavour, where complications of this kind arise, to set out the statutory provisions operative for the purpose of the proceedings.

18. There were a number of provisions in the Act which prohibited the taking of certain ‘actions’ that would have a ‘significant impact’ unless approval was first sought and given under Part 9 of the Act. The term ‘action’ was defined and limited by ss 523, 524 and 524A. What was proposed by PRL was an ‘action’. The meaning of ‘impact’ was given by s 527E. It included both direct consequences and a range of indirect consequences. The term ‘significant impact’ was not defined. The prohibiting sections which required consideration in the present case were ss 16/17B (significant impact on the ecological character of a declared RAMSAR wetland – the RAMSAR Convention is the convention on wetlands of international importance, especially as waterfowl habitat, ‘done’ at RAMSAR Iran on 2 February 1971), ss 18/18A (significant impact on a listed threatened species included in the extinct in the wild category); ss 20/20A (significant impact on a listed migratory species); ss 23/24A (significant impact on the environment in a Commonwealth marine area – Commonwealth marine area was defined in s 24) and ss 26/27A (significant impact on the environment on Commonwealth land – Commonwealth land was defined in s 27 - see also s 525).

19. Section 67 of the Act designated an action, which would be prohibited by, inter alia, ss 16/17B, 18/18A, 20/20A, 23/24A or 26/27A, as a ‘controlled action’. The prohibiting provisions were each designated a ‘controlling provision’. Section 68 required that a person who proposed to take such an action refer the proposal to the Minister for decision whether or not the action was a controlled action. Referral of such a question to the Minister by PRL in 2001 commenced the chain of decisions and assessments that preceded the present proceedings.

20. If the Minister decided that an action was a controlled action, s 82 of the Act applied a series of legislative provisions to the assessment of the ‘relevant impacts’. The term ‘relevant impacts’ was defined by s 82 and extended to past as well as future and probable impacts. Section 87 required the Minister to decide on an approach for the assessment of the relevant impacts. One of those approaches was ‘assessment by environmental impact statement under Division 6’ (s 87(1)(d)). That was the approach chosen. A series of further statutory directions (in Chapter 4, Part 8, Division 6 of the Act) were thereby engaged. The Minister was required to ‘prepare written guidelines for the content of a draft statement about the action and its relevant impacts’ (s 102). After a period for comment and finalisation of the environmental impact statement, the Secretary of the Minister’s Department was also required to provide an ‘assessment report’ (s 105).

21. The first two stated objects of the Act were as follows:

    ‘(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.’

22. The ‘principles of ecologically sustainable development’, which the Act directed must be taken into account in considering whether to approve certain actions (see s 136(2)(a)) were stated in s 3A of the Act in the following way:

    ‘The following principles are principles of ecologically sustainable development:

    (a)decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

    (b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

    (c)the principle of inter-generational equity – that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

    (d)the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

    (e)improved valuation, pricing and incentive mechanisms should be promoted.’

23. Reconciliation of potentially conflicting objectives within these ‘principles’ required a balance to be struck between avoiding damage to the environment and social, economic and equitable considerations.  Provided the Minister took into account matters identified for that purpose by the Act, and did not take into account irrelevant or extraneous matters, it was left to the Minister to strike the necessary balance and come to an ultimate conclusion.  The central thrust of PRL’s representations to the Minister was that the risks of environmental damage could be satisfactorily contained and that the social and economic factors to which it drew attention should have prevailed over those risks.  It contended, in effect, that the balance should have tipped in the other direction.

1. Section 130 of the Act required the Minister to decide whether or not to approve the taking of the action for the purpose of each of the controlling provisions. Section 136 set out the conditions governing the Minister’s consideration of whether or not to approve the taking of an action. It is as well to set it out in full in the form it took as it applied to the Minister’s decision which was challenged in the present case.

   ‘136.    Mandatory considerations

   (1)In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:

   (a)matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;

   (b)       economic and social matters.

   (2)      In considering those matters, the Minister must take into account:

   (a)       the principles of ecologically sustainable development; and
   (b)       the assessment report relating to the action; and

   (c)if the action was assessed under Division 5 or 6 of Part 8 (which deal with public environment reports and environmental impact statements) – the report or statement about the action finalised by the designated proponent; and

   (d)if any inquiry was conducted under Division 7 of part 8 in relation to the action – the report of the commissioners; and

   (e)any other information the Minister has on the relevant impacts of the action (including information in a report on the impacts of actions taken under a policy, plan or program under which the action is to be taken that was given to the Minister under an agreement under Part 10 (about strategic assessments)); and

   (f)any relevant comments given to the Minister by another Minister in accordance with an invitation under section 131.

   Person’s environmental history

   (4)In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval having regard to:

   (a)       the person’s history in relation to environmental matters; and

   (b)if the person is a body corporate – the history of its executive officers in relation to environmental matters; and

   (c)if the person is a body corporate that is a subsidiary of another body or company (the parent body) the history in relation to environmental matters of the parent body and its executive officers.

   Minister not to consider other matters

   (5)In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Subdivision to consider.’

   (Emphasis added.)

   (There was no s 136(3).)

2. Relevantly for present purposes, the Minister was expressly required, when considering matters relevant to matters protected by the controlling provisions and economic and social matters, to take into account the principles of ecologically sustainable development, the assessment report provided by the Secretary and the environmental impact statement prepared by PRL in accordance with the guidelines prepared by the Minister.

   ASSESSMENT OF PRL’S APPLICATION

   Identification of the controlling provisions

3. PRL referred its proposal for additional mining to the Department of the Environment and Heritage (then the relevant Department) on 1 November 2001.  It identified ss 18/18A, 20/20A and 26/27A as controlling provisions relevant to its proposal.  It said ss 16/17B and 23/24A were not relevant and were therefore not controlling provisions.  On 14 November 2001 Mr Gerard Early, Deputy Secretary of the Department, decided, as a delegate of the Minister, that the proposed action was a controlled action and that the controlling provisions were each of: ss 16/17B; 18/18A; 20/120A; 23/24A; and 26/27A.  Reasons for that decision were provided on 8 January 2002 at the request of PRL.  In due course the Minister’s decision on 27 April 2007 to refuse approval for the action (the additional mining) proposed by PRL was expressed to have effect for each of the provisions identified by Mr Early.  That was also what the Department recommended at the time the decision was made.  

4. It is worth noting, at this point, a defect in the decision of the Minister which was admitted during the course of the proceedings.  When the Minister provided written reasons for his decision, the Statement of Reasons explained only why the decision had effect for ss 18/18A, 20/20A and 26/27A, the provisions accepted as relevant by PRL in its referral.  Despite the failure to explain why the decision had been stated to have effect also for ss 16/17B and 23/24A, no amendment of the decision was made.  The lack of justification for the decision having effect for those latter provisions was referred to in written submissions by PRL.  That part of PRL’s written submissions drew no response until the hearing when, for the first time, it was conceded that to the extent that the decision was stated to have effect for ss 16/17B and 23/24A it could not be sustained. 

5. That concession prompted an application by PRL for discovery, which I rejected (Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385). The concession also contributed to PRL’s change of position about the reliability of the Minister’s written Statement of Reasons. Evidence advanced by the respondent in answer to the application for discovery revealed an offer to consent to an order setting aside the decision to the extent that it was said to have effect for ss 16/17B and 23/24A. I will deal later with whether that would be an appropriate and sufficient response to the error which was somewhat belatedly admitted.

   The environmental impact statement

6. Under the statutory scheme PRL’s proposal required initial assessment in one of five ways set out in ss 85 and 87(1) of the Act which provided:

   ‘85.     Simplified outline of this Division

   The following is a simplified outline of this Division:

The Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action:

(a)   an accredited assessment process;

(b)   an assessment on preliminary documentation;

(c)   a public environment report;

(d)   an environmental impact statement;

(e)   a public inquiry.

…

87Minister must decide on approach for assessment

Minister must choose one assessment approach

(1)The Minister must decide which one of the following approaches must be used for assessment of the relevant impacts of the action:

(a)       assessment by an accredited assessment process;

(b)assessment on preliminary documentation under Division 4;

(c)assessment by public environment report under Division 5;

(d)assessment by environmental impact statement under Division 6;

(e)assessment by inquiry under Division 7.’

1. On 21 December 2001 a delegate of the Minister decided, under s 87 of the Act, that the proposed action should be assessed by environmental impact statement. That decision engaged the provisions of Division 6 of Part 8 of Chapter 4 of the Act. The Act then required (s 102) in the first instance, that ‘written guidelines for the content of a draft statement about the action and its relevant impacts’ be prepared.  Draft guidelines dated January 2000 were issued for public comment.  Final guidelines for the draft environmental impact statement, dated August 2002 were later published.

2. In accordance with s 103 of the Act, PRL provided a draft environmental impact statement to the Minister on 5 September 2002. Publication was approved by a delegate of the Minister on 23 September 2005. The draft environmental impact statement (and an erratum dealing with some printing errors) was made available for public review. PRL received 413 submissions about the draft environmental impact statement.

3. Section 104 required PRL to finalise the draft environmental impact statement, taking account of comments received and ‘give the finalised statement to the Minister’. Section 104(2) provided:

   ‘(2)The designated proponent may give the finalised statement to the Minister in the form of:

   (a)       a revised version of the draft statement; or
   (b)       the draft statement and a supplement to the draft statement.’

4. On 11 June 2006, PRL provided to the Department a draft of a supplement to the draft environmental impact statement addressing public comment in accordance with s 104 of the Act. The Department required further information. In the meantime, the Department had commissioned an independent report from Dr Libby Mattiske. The Department of Transport and Regional Services also commissioned a report from the Centre for Mined Land Rehabilitation. Those two reports were provided to the Department late in 2006 and then provided to PRL.

5. On 22 September 2006 an officer of the Department, Ms Dickman, wrote to PRL in the following terms:

   ‘I would like to take this opportunity to update you on progress of the assessment of the above controlled action.

   You will no doubt be aware that two reports on aspects of the proposal have been commissioned by the Department of the Environment & Heritage (DEH), and the Department of Transport and Regional Services (DOTARS) respectively.  I have received a draft copy of the ‘Independent Review of the Environmental Impact Statement (EIS)’ commissioned by DEH, and I’m currently reviewing it.  I understand that the DOTARS report on the rehabilitation of mine sites is progressing, and a workshop on the matter is due to be scheduled soon.

   Given the relevance of both reports in assessing your proposal, I am keen to get your comments on them prior to accepting your response to the matters raised in public submissions to the draft EIS.  This will ensure that your comments can be taken into account in writing the assessment report on the proposal.  At this stage I would expect to send you a copy of the final DEH report within the next two weeks.’

6. PRL provided a response to the draft report of Dr Mattiske and the draft report from the Centre for Mined Land Rehabilitation in October 2006.  It was relatively short.  It concluded in the following way: 

   ‘Conclusion

   PRL believes that there has been no information presented in either the CLMR or Mattiske report that has not already been discussed at length throughout the draft EIS.  Whilst PRL strongly agrees that Christmas Island is unique and will need to be carefully managed into the future to preserve the ecological characteristics for which it is famous, nothing presented in either the Mattiske or CLMR report link the proposed new leases to significant long-term impacts on the Island’s ecological integrity or biodiversity.

   PRL asserts that the socio-economic environment of Christmas Island is also unique.  The phosphate resource is limited, and PRL has made the commitment not to apply for any more leases.  A transition from an economy based on phosphate mining to a more diverse economy based on industries like eco-tourism is therefore necessary.  Nevertheless, studies conducted as part of the draft EIS suggest that many on the Island feel tentative that an abrupt end to mining will leave their futures uncertain.  A continuation of mining in the short to mid term will alleviate these concerns, and give Christmas Island the “breathing space” required to build upon the foundling tourism industry and other potential economic activities and move towards a more sustainable economic future for the Island’s residents.

   The proposal we have set out in the draft EIS provides for a balanced outcome that will provide for a well managed continuation of mining, an orderly transition to a post mining economy and an increase in the size of Christmas Island National Park which will enhance the management of the Island’s biodiversity and threatening processes.’

7. On 27 October 2006 Ms Dickman wrote again seeking further information.  Her letter said, in part:

   ‘The Department has reviewed the public submissions on the draft Environmental Impact Statement (EIS) of the above proposal, the Phosphate Resources Limited (PRL) response to those submissions, and your letter of 16 October 2006.  As discussed, we have outlined the Department’s information requirements to finalise the supplementary EIS in the following attachment.’

8. The attachment to which she referred sought further specific information about the following matters:  ‘Impacts of mining activity on species and habitat’; ‘Environmental record of Christmas Island Phosphate (trading as PRL)’; and ‘Decommissioning of facilities’.  Apparently a response was provided, although it is not in evidence.  There were further exchanges of correspondence during November 2006.  On 21 November, 2006 Ms Dickman wrote advising PRL that the information provided ‘met the requirements of the finalised environmental impact statement required under s 104’ of the Act although, on 29 December 2006, PRL made further representations to Ms Dickman after receipt of an updated report by Dr Mattiske. 

9. Although the Secretary’s assessment report and the Minister’s later written Statement of Reasons for decision referred frequently to the ‘draft’ environmental impact statement, in view of the fact that it was finalised as required by the Act, I shall refer to it as the environmental impact statement.

   The Department’s Assessment Report

10. Finalisation of the environmental impact statement engaged an obligation on the Secretary of the Department under s 105 of the Act to provide an ‘assessment report’ to the Minister about PRL’s proposal. The assessment report required by s 105 was dated January 2007. It recommended against PRL’s proposal.

11. Section 136(2)(b) of the Act explicitly required the Minister to take account of the assessment report. The assessment report referred at an early stage to the environmental impact statement prepared by PRL as follows:

    ‘On 21 December 2001, a delegate for the Minister decided that the assessment approach would be by Environmental Impact Statement (EIS).  From 14 December 2002[sic] to 22 March 2002, draft guidelines for the EIS were published for public comment.  The final guidelines were accepted on 15 November 2002.

    The proponent published the draft EIS as required under section 93(1)(a), on 18 November 2005, and invited public comments until 30 December 2005.  Advertisements were placed in The Australian newspaper, and in English, Mandarin and Malay in the “Islander”.  The proponent notified DEH that 413 public submissions were received, and provided copies and a summary of the comments.

    The revised Supplementary Report, taking into account the comments received, was accepted by a delegate for the Minister on 21 November 2006.’

    and:

    ‘PRL advertised the draft EIS on the mainland, locally in multiple languages, and conducted 2 public forums on Christmas Island.  A total of 413 submissions were received.  Submissions were made by current and former Island residents, scientists, wildlife experts, tourists, Australian and overseas residents, the Shire, commercial businesses, and the peak business body on Island.  Most submissions opposed the proposal (approximately 75%), concentrating on the removal of primary rainforest for mining.  The Christmas Island Chamber of Commerce, which represents the majority of businesses on the Island, supported PRL’s mining operation, however, it also voiced concern that PRL does not threaten Christmas Island’s unique natural biodiversity, or clear rainforest.

    Other issues raised in the public submissions included:

    •Loss of forest vegetation and soil, with a number of comments comparing mining on Christmas Island with that which occurred on Nauru;

    •Habitat loss for EPBC listed and endemic species.  Birds Australia in particular claimed that the listed Hawk-Owl and Goshawk would have an increased risk of extinction;

    •The impacts upon water quality and volume, and the fauna of karst systems near and within the proposed mines;

    •Dust impacts upon the natural environment.  Dust produced by the dryers impacts on the forest below and the marine environment in Flying Fish Cove, and coral from stormwater runoff and silt; and

    •The removal and destruction of the land crab populations.

    Submissions in favour of the proposal concentrated on the socio-economic benefits for the Island.  The Shire of Christmas Island stated the need to maintain and support the Island’s community “while steps are taken to diversify the Christmas Island economy in an environmentally sustainable manner.”’

12. Thereafter the assessment report described the proposed action, described the environment on and of Christmas Island (sometimes by reference to matters stated in the environmental impact statement) and then proceeded to make an assessment of impacts and mitigation measures; finally stating a number of conclusions.  Those later sections of the assessment report referred frequently to the environmental impact statement, as well as to Dr Mattiske’s report and the report from the Centre for Mined Land Rehabilitation.

13. There can be no doubt that, in the assessment report, the environmental impact statement was treated as advancing, overall, a case for the proposed action.  That case was moderated by the contents of the other reports.  The purpose of the assessment report was clearly to provide the Minister with a recommendation that took account of all the available information.  The information extended to the social impact of accepting or refusing the proposal.  There was also a discussion of the principles of ecologically sustainable development.  An extensive bibliography was included.

14. Amongst the important conclusions distilled from the discussion in the assessment report were the following:

    ‘PRL has stated in correspondence dated 2 November 2006 that it would not be making any more applications to mine on vacant land, and that the current mining proposal would only allow current operations to extend from 3-5 years, to  up to 10 years.  Approximately 2/3 (78) of the PRL fulltime workforce is 50 or more years of age.  Therefore approval of the proposal would probably enable most of those workers to retire in their current jobs, although the mining industry on mainland Western Australia is currently experiencing a shortage of skilled workers.

    On the information provided to date it is not possible to determine whether the proposal is economically sustainable, given the uncertainty about the costs and scope of decommissioning, although it would have short-term economic and social benefits for existing workers.  However, the proposal would cause certain and significant irreversible environmental damage.  Therefore, on balance, the proposal to continue short-term mining on Christmas Island at the cost of the high likelihood of further loss of rainforest habitat, and the consequent facilitation of the extinction of species, is inconsistent with the principles of ecologically sustainable development.’

    and:

    ‘One of the principles of Ecologically Sustainable Development is that “the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making.”  Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, it would be in the interests of the long term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed.’
    (Emphasis added.)

15. Two matters should be mentioned as a further introduction to issues later discussed.  First is the discussion of the environmental impact statement.  There can be no doubt that the environmental impact statement was at the forefront of attention in the assessment report provided to the Minister by the Department, and that as a matter of substance the recommendation to the Minister which it contained proceeded from a consideration, and rejection, of the case made by PRL through the environment impact statement.  On the other hand, the assessment report did not attempt any summary of the environmental impact statement.  The references to it were for the purpose of advancing the analysis in the assessment report.

1. The second matter concerns the operation of the Act.  Although each of the controlling provisions of the Act was mentioned, along with the matter each protected, there was no discussion, as such, of statutory prohibitions.  In particular, there was no suggestion that approval of the proposal was prohibited by the Act for any reason.  The conclusions and recommendation were reached, as the extract above shows, ‘on balance’.

   PRL’S INITIAL ATTACKS ON THE DECISION

2. At the outset of the case, PRL accepted that the Minister’s reasons for decision were those stated in the written Statement of Reasons signed on 14 June 2007.  By the end of the case PRL’s position had been significantly modified.  It will be necessary to give further detailed attention to the reasons attributed to the Minister in the written Statement of Reasons, but it is possible to deal in a more general way with PRL’s original case in the light of the statutory scheme I have outlined.  Initially the challenge to the Minister’s decision fell principally into six broad categories.  In each category of suggested legal error the argument depended heavily on conclusions to be drawn from contested facts.  In many cases the argument involved little more than debate about the soundness of conclusions expressed in the written Statement of Reasons.  In some cases it depended upon a wrong view of the statutory scheme. 

3. When PRL withdrew its acceptance that the Statement of Reasons represented the Minister’s actual reasons for decision, that removed the foundation of most of its original arguments, which were heavily dependent on debating the justification for, and accuracy of, various ‘findings’ expressed in the Statement of Reasons.  Nevertheless, I shall explain why the matters which were originally relied upon did not, in my view, provide any basis for the relief which was sought.

   Likely impacts

4. PRL contended that the Minister did not take into account, as the Act required, the ‘likely impacts’ of the action which it proposed on listed threatened species, listed migratory species and the environment on Commonwealth land.

5. Once a decision was made that the proposed action was a controlled action (s 75) and that the action should be assessed, in the first instance, by environmental impact statement (s 87) PRL was required to prepare an environmental impact statement that dealt with ‘the relevant impacts of the action’. Section 82(1) defined ‘relevant impacts’ in the following way:

   ‘(1)If the Minister has decided under Division 2 of Part 7 that an action is a controlled action, the relevant impacts of the action are the impacts that the action:

   a.has or will have; or

   b.is likely to have;

   on the matter protected by each provision of Part 3 that the Minister has decided under that Division is a controlling provision for the action.’

   (Bold in original)

6. Assessment of likely impacts was, therefore, a matter required to be addressed by the environmental impact statement. Under s 136(2) the Minister was required to take the environmental impact statement into account. The Act did not impose any further express or independent obligation upon the Minister to take likely impacts into account but it is clear he could not simply disregard them because he had an obligation to consider ‘matters relevant to any matter protected by a provision … that the Minister has decided is a controlling provision for the action’.

7. One way PRL sought to make good its contention that the Minister did not ‘consider likely impacts’ was to draw attention to passages in the Statement of Reasons which PRL contended were concerned only with the discussion of possibilities.  The submission was highly selective and ignored the plain language of relevant parts of the Statement of Reasons.  For so long as the Statement of Reasons was accepted as stating the Minister’s reasons for decision (as it was when these arguments were advanced) the argument was, in my view, without substance.

8. Another aspect of the argument was that the Minister did not give attention, as the Act required, to the likely effect on species as a whole but was diverted by an examination of the effect on individual members or populations of species.  It is true that examination, in the various reports including the environmental impact statement, frequently began with the identification of known populations of particular species of flora and fauna and the likely effect on them of the proposed action but I am satisfied that, at least so far as the Statement of Reasons is concerned, the stated findings made about loss of habitat and other threats sufficiently concerned the endangered and critically endangered species as such that they cannot be dismissed as matters affecting only individual members or confined populations of the species.  Once it is clear that attention was given to the effects and potential effects upon species the debate becomes one about whether the judgments made were correct or not.  That is a different issue which does not involve a debate about legal error.  I might, however, permit myself the observation that it is difficult to dismiss discussion of even individual populations of a critically endangered species upon the basis that it is remote from a discussion of the effect upon the species as a whole.

   Significant impacts

9. It was argued that, for the purpose of the Minister’s decision, an impact was required to be established as a ‘significant impact’ in order for the Minister to act upon it.  PRL contended that the Statement of Reasons demonstrated that the Minister had failed to apply the correct test (significant impact) but had used other, incorrect, tests.  The notion of ‘significant impact’ was imported by PRL from the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A, and 26/27A) but in those provisions the concept of ‘significant impact’ had different work to do.

10. Under the statutory scheme, an action that ‘has or will have a significant impact’ in a relevant respect was one which might not be taken without approval.  That was the matter to which all of the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A and 26/27A) were directed.  When a decision was to be made whether a controlling provision was engaged by the action or proposed action it was only the adverse impacts, and not the beneficial impacts, which might be taken into account (s 75(2)).  When the Minister came to consider whether or not to approve an action (ss 130 and 133) or to approve an action subject to conditions (s 134) the Minister was not directed to, or confined by, a consideration of ‘significant impacts’.  The existence of such impacts was assumed.  His consideration of whether or not to grant approval could, and should, take into account beneficial, as well as adverse, impacts and he was also expressly required to take into account economic and social matters (s 136(1)(b)).  In my view, this line of argument was misconceived.  It did not point to any failure to apply the correct statutory tests.

    No evidence

11. PRL argued that the Minister had no evidence for many of the factual findings stated by the written Statement of Reasons.

12. In one way or another all the matters relied upon for the proposition that the Minister had no evidence for the findings set out in the Statement of Reasons were derived from the proposition that he either ignored or gave insufficient weight to the environmental impact statement.  One variant of the argument (dealt with below) was that, although he was not legally obliged to personally read the environmental impact statement, any summary of it which was provided to him was misleading and inaccurate.

13. As earlier mentioned, the Statement of Reasons made frequent reference to the environmental impact statement.  For so long as the Statement of Reasons was accepted as an explanation of the Minister’s reasons for decision it was impossible to successfully contend, as PRL attempted to do, that the environmental impact statement had been ignored altogether. On the other hand, if the environmental impact statement had been taken into account, PRL’s argument amounted simply to a contention that the representations in the environmental impact statement about a wide range of matters deserved more weight than they had been given or, in some cases, deserved acceptance rather than rejection.  The argument was bolstered by a submission that the environmental impact statement should be regarded as the primary source of facts.  That contention had no support in the statutory scheme.  The environmental impact statement was an important, but only one, source of information.  It had no presumptive weight, whether with regard to factual statements or value judgments.

14. The arguments advanced suggesting there was no evidence to support a range of findings really sought to invoke an impermissible review of the merit of those findings.  For so long as the Statement of Reasons was accepted as stating the Minister’s reasons then, unless it could be shown independently that he did not, as he asserted, take into account the environmental impact statement, PRL’s argument really amounted to a contention that he should have given it greater weight.  That is not an argument about legal error.

    Precautionary principle

15. The fourth attack suggested that the Minister had failed to apply the ‘precautionary principle’ as required by the Act (s 391). Section 391(1) and (2) provide:

    ‘(1)the Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.

    (2)The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.’

    (Bold in original)

16. The decision was one to which the precautionary principle applied. The precautionary principle was also incorporated in the principles of ecologically sustainable development (see s 3A(b)). PRL’s submission was to the effect that although the Minister referred to the principle he made no finding that, in any area under consideration, there was a ‘lack of full scientific certainty’. This submission did not accord with the operation of s 391. The Minister was directed not to delay action to protect the environment if there was a lack of full scientific certainty. He did not do so. In my view, there was no substance in the argument.

    Natural justice

17. Fifthly, PRL argued it was denied natural justice. It said it should have been provided with a copy of the Secretary’s assessment report made under s 105. Section 105(2) obliged the Secretary to provide a copy of the report to PRL if asked for it. It was conceded that no such request was made. The submission was untenable. It was also argued that PRL was misled by statements attributed to a former Minister, Senator Campbell, that reassured PRL that there would be an opportunity for further submissions if there was any concern about the environmental impact statement. Neither the evidence specifically relied upon (a letter from PRL attributing remarks to Senator Campbell), nor the evidence generally, supported the factual foundation for this assertion. It also had no substance.

    Incomplete and misleading summary

18. The remaining matter raised, although not very persuasively at first in light of PRL’s acceptance that the Minister’s reasons were those set out in the written Statement of Reasons, was the suggestion that the Minister had not taken the environmental impact statement into account as required by the Act but, instead, had relied inappropriately on a Departmental summary which was misleading and inaccurate. 

19. The argument was supplementary to the argument suggesting the Minister acted without evidence.  This variant suggested that the assessment report was the summary relied upon and it was an inaccurate summary.  The argument mistook, and misstated, the effect of the assessment report, which did not, in any event, purport to be a summary of the environmental impact statement.  Under the Act, the assessment report was required to be taken into account in its own right (s 136(2)).  So far as it suggested conclusions which departed from the representations in the environmental impact statement that was because the Department did not share the views advanced by PRL, not because it was a misleading summary.

20. Some of the argument about the assessment report descended into a debate about whether it was correct to attribute responsibility to PRL for remediation of past mining activities.  It was alleged that attribution of responsibility in that respect demonstrated incorrect findings of fact and that therefore irrelevant matters were taken into account.  The matters referred to did not involve findings of fact at all.  They involved opinions and judgments about who should bear the financial burden for past damage and final decommissioning of plant.  Such matters were not within the scope of the present proceedings which are concerned only with the identification of legal error and not a debate about the merits of the Minister’s decision, much less about who does, or should, carry present responsibility for the environmental damage done in the past.

    PRL’S CHANGE OF POSITION

21. A major plank in PRL’s challenge to the Minister’s decision was, at all times, the contention that an inference should be drawn that the Minister did not, as he was required by the Act to do, take account of the environmental impact statement.  For so long as PRL accepted that the Statement of Reasons was a reliable statement of the actual reasons for the Minister’s decision, the contention faced almost insuperable difficulties as the Statement of Reasons referred in a number of places to the environmental impact statement and the case presented by it.  During an adjournment, before submissions for the respondent were complete, PRL changed its position.  As a result of the concession made by counsel for the respondent, during her oral submissions, that aspects of the decision could not be supported (namely, that the decision had effect for ss 16/17B and 23/24A) and the suggestion that they had been included in error, PRL during the adjournment filed a notice of motion seeking discovery and other orders. 

22. PRL then led evidence, in support of the notice of motion, without relevant objection, that after the respondent’s concession it had reviewed its position.  PRL’s submissions in relation to the notice of motion made it clear that it no longer necessarily accepted, as it had earlier, ‘that the reasons for the Decision are set out in the Statement of Reasons’.  The concession by the respondent has some significance in its own right as I will later indicate.  Its significance for the change in PRL’s position was, however, that it suggested to PRL’s legal advisers, apparently for the first time, that there were reasons to doubt whether the written Statement of Reasons could be adequately reconciled with the advice and explanations which were, on the evidence, before the Minister at the time he made his decision.

23. PRL’s change of position was a significant one.  As the case did not proceed on the basis of pleadings there was no formal barrier to PRL’s change of position.  I decided the parties should have a further opportunity to deal with that issue.

24. In further written submissions PRL confirmed that it no longer accepted the Statement of Reasons.  It said:

    ‘3The applicant now submits that the Statement of Reasons does not set out the reasons of the Minister at the time he made the Decision.  Earlier submissions, to the extent that they rely on the Statement of Reasons, are now put in the alternative.’

25. Apart from the challenges originally advanced, the issues which arose from, or were refocussed by, PRL’s change of position may be summarised as follows:

    -was the Minister correctly advised, before he made his decision on 27 April 2007, about the matters he was required to take into account?;

    -what weight, if any, should be given to the written Statement of Reasons upon a consideration of the whole of the evidence?;

    -should it be concluded that the Minister took into account the environmental impact statement prepared by PRL?;

    -what is the significance of the fact that aspects of the decision were admittedly not sustainable?

    THE DECISION-MAKING PROCESS

26. I will need to deal later, in the course of discussion about this subject, with the affidavit sworn by Mr Early on 6 August 2008.  In that affidavit, Mr Early described the processes followed within the Department to submit matters for consideration and decision by the Minister and identified a number of ‘errors’ in material supplied to the Minister before he made his decision on 27 April 2007.  Before I give his evidence about those matters further attention, I propose to deal with the material by reference to its own terms.  Then I will return to Mr Early’s explanations when a fuller context is available.

    The first Ministerial brief

27. On 2 February 2007 Mr Early sent a brief to the Minister recommending that, in the first instance, he ‘propose to refuse approval’ for the proposal. That interim step was required because before he made a decision it was necessary, under s 131 of the Act, that the Minister inform other Ministers, whose portfolio responsibilities might be affected, of his proposed decision and invite their comments. Under s 136 such comments had to be taken into account also when making the decision.

28. The Minister who made the decision under challenge, Mr Turnbull, assumed his responsibilities on 23 January 2007.  The first evidence of any provision to him of material relating to the proposal by PRL was the brief from Mr Early dated 2 February 2007.  The brief to the Minister gave only short reasons for the Department’s recommendation that he reject the proposal.  It referred to PRL’s environmental impact statement, the report of the Centre for Mined Land Rehabilitation, Dr Mattiske’s report, PRL’s responses to that report, additional information provided by PRL and the Department’s own assessment report.  It should be set out in full.  The brief said (omitting formal parts):

    ‘Recommendations:
    We recommend that you:

    2.consider your legal obligations for

    decision-making at Attachment A.                   1. Noted / Please discuss

    3.propose to refuse approval, as

    reflected in the proposed decision

    at Attachment B.  2. Agreed / Not agreed

    4.sign the letters at Attachment C to

    the Prime Minister and Ministerial

    colleagues in relation to the proposed

    decision.3. Signed / Not signed

    MINISTER
    14/2/2007

    Key Issues;

    •Phosphate Resources Limited (PRL) initially proposed to expand phosphate mining by 403.7 hectares over nine sites of vacant Crown land on Christmas Island.  PRL subsequently revised the proposal to 256.3 hectares over eight sites.  The proposal has been assessed under the environment Protection and Biodiversity Conservation Act 1999 (the ‘EPBC’ Act).  It is controversial locally, nationally and has also gained international attention.  More than 400 submissions were made during the public comment period, of which more than 75 per cent opposed the proposal.

    •The proposal includes the clearing of 197.3 hectares of (primary) evergreen closed tall rainforest.  A moratorium on rainforest clearing for mining was declared on Christmas Island in 1988, and current leases issued in 1990 and 1998 (expiring in 2019) specifically prohibit the clearance, degradation or damage of any primary rainforest, restricting mining activities to previously mined areas.

    •Christmas Island contains a large number of endemic species (ie found only on Christmas Island), and 16 threatened and migratory species listed under the EPBC Act. The proposal to clear primary rainforest would directly impact 11 of these species. It would also inhibit the annual Christmas Island Red Crab migration, important for the maintenance of the Christmas Island rainforest ecosystem.

    •There are long-term environmental impacts from mining on the integrity of the Christmas Island ecosystem.  The independent review of mined land rehabilitation (Attachment D) found that of the approximately 3,000 hectares of previously mined land, 220 hectares have been rehabilitated.  Due to the finite reserves of topsoil available, only 14% of the remaining 2,780 hectares may ever have scope for rehabilitation back to rainforest.

    •PRL proposes to replace the original closed forest with another vegetation type.  This would result in the permanent loss of 6% of the remaining closed canopy rainforest.  PRL’s rehabilitation programme does not intend to progress to secondary or primary rainforest.

    •The Department is concerned that phosphate mining on the proposed leases would impact upon various matters protected under the EPBC Act. In addition to the loss of primary rainforest and the general concerns about rehabilitation, there would be impacts on native vegetation and listed flora through edge effects (ie making a longer boundary for the remaining intact areas); loss of habitat for native, endemic and listed mammals, birds, and crabs; and a likely spread of introduced flora and fauna that may prey upon, compete with, or displace native species.

    •Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, the Department considers it would be in the interests of the long-term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed.

    •Independent analysis (Attachment E) has suggested that the clearing of primary rainforest for further mining is likely to contribute to the extinction of a number of listed threatened and migratory species in the long term.  PRL was given a copy of the report and responded to the issues raised (Attachment F).  In essence, PRL disputes that the report provides any new information that had not been adequately addressed in the draft environmental impact statement (Attachment G) or in additional information provided by PRL (Attachment H).  In particular, PRL disputes there is any evidence to suggest that well managed semi-deciduous mesophyll vine forest (as proposed in its rehabilitation plans) would necessarily be less diverse than closed evergreen rainforest.  The Department notes that even the success of the more limited rehabilitation proposed by PRL is not guaranteed.

    •The Department believes that, based on the information provided by PRL, a decision to approve the proposal would be inconsistent with Australia’s obligations under international treaties, and recovery plans for listed threatened and migratory species (Attachment A). Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment J).

    Handling:

    •You are required to make a decision on whether or not to approve the proposal by 20 February 2007.  The assessment report prepared by the Department (Attachment I) recommends that you reject the proposal.

    •Under PRL’s currently approved leases, the Department understands there are phosphate reserves for a further five years mining.  The Department of Transport and Regional Services (DOTARS) has actively lobbied this Department for EPBC approval of the proposal on economic and social grounds.  DOTARS and PRL believe that 10 years is needed to transition workers into new economically viable employment, or to reach retirement age.  DOTARS has been aware since August 2001, however, that this Department has had grave reservations about the acceptability of the proposal.

    •While the continued operation of the mining company is seen by some as a substantial contributor to the ongoing viability of Christmas Island, the further loss of rainforest may impact adversely on future business options for the Island, including eco-tourism.  The economic benefit of the proposed additional mining may also be significantly outweighed by the true cot of proper rehabilitation.

    •You have a legal obligation under section 131 to consult with the Minister for Transport and Regional Services and the Minister for Local Government, Territories and Roads on your decision, and given the broad Government interest in the future of the Island, you may wish to consult with the Prime Minister.  Draft letters for your consideration are at Attachment C.

    Background:

    •Over sixty percent of Christmas Island is under formal protection through the Christmas Island National Park.  The Park contains the last remaining nesting habitat in the world for the EPBC listed endangered Abbott’s booby.  It also supports the world’s largest remaining Robber crab population, and probably contains the largest and most diverse land crab community anywhere.  The World Wildlife Fund, the Duke of Edinburgh and Sir David Attenborough have written to the Australian Government about the impacts of phosphate mining upon the higher number of endemic and iconic species, such as land crabs on Christmas Island.  The Island has been referred to as Australia’s “Galapagos Island”.

    •On 14 November 2001, the Assistant Secretary, Environmental Assessment Branch, as your delegate, decided that the above action is a controlled action.  The controlling provisions are:

    Section 16 and 17B (Wetlands of international importance);
    Sections 18 and 18A (Listed threatened species and communities);
    Sections 20 and 20A (Listed migratory species);
    Sections 23 and 24A (Marine environment); and
    Sections 26 and 27A (Protection of the environment from actions involving Commonwealth land).

    Legal and Technical Issues:

    •Your legal obligations on decision-making under Part 9 of the EPBC Act are set out at Attachment A together with additional material relevant to this action.  Based on this information and the other material presented in this brief, we have prepared a draft refusal decision at Attachment B.’

    (Emphasis added).

1. The outcomes of the recommendations (as the emphasis shows) were: 1. - Noted; 2. – Agreed; and 3. – Signed.  The Minister’s signature appeared thereunder, with a date ‘14/2/2007’.  The ‘draft refusal decision’ was not relevantly distinguishable from the decision signed on 27 April 2007.  It contained the same (admittedly unsustainable) references to ss 16/17B and 23/24A of the Act.  Both documents were entitled (incorrectly) ‘Decision to Approve the Taking of an Action’.  Adoption by the Minister of these errors on 14 February 2007, and later on 27 April 2007, is a strong indicator, apart from his formal endorsement of the recommendations, that he acted on, and relied upon, the advice to him and the reflection of that advice in the formal instrument executed by him.  It should be noted, for later reference, that the brief signed by Mr Early contained a clear statement that all five sets of controlling provisions were engaged in relation to the matters before the Minister for his decision.

2. Three further particular matters should also be noted about the nature of the decisions which the Minister was asked to make on 2 February 2007.  First, he was obliged to consult with some Ministerial colleagues before making a final decision.  It was for that reason it was recommended (and he agreed) that he ‘propose to refuse approval’.  Secondly, he was advised that it was the Department’s view that approval of the proposal would be ‘inconsistent with’ (presumably therefore prohibited by) the Act although, as noted earlier, there was no such conclusion stated in the assessment report and there was no detailed case to that effect argued in the brief.  Thirdly, the Minister’s attention was drawn directly to his ‘legal obligations’ in connection with the decision to be made.  That was done in recommendation 1 which the Minister noted.  It also appeared in the brief in the final passage emphasised.  The detailed obligations were set out in Attachment A.

3. Attachment A was not a very satisfactory document. It betrayed a lack of care. In addition, attachments to which it referred were not given the same designation (e.g. G, H, etc) as the brief itself. The draft environmental impact statement was described as Attachment F, whereas in the brief it was referred to as Attachment G. The assessment report by the Department was referred to in the brief as Attachment I but in Attachment A was referred to as Attachment G. Attachment A identified the matters the Minister was obliged to consider under s 136(1) of the Act and set out a number of factors to be taken into account as follows:

   ‘Mandatory Considerations
   In accordance with Section 136 the Minister must consider the following, so far as they are not inconsistent with any other requirement of Subdivision B, Division 1 of Part 9 of the EPBC Act:

   (a) matters relevant to any matter protected by the controlling provisions:

   •See Assessment Report at Attachment G, and independent analysis report at Attachment E.

   (b) economic and social matters:

   •Information on economic and social matters was obtained from the Environmental Impact Statement and public comment submissions – phosphate mining is the major economic activity on the island, contributing approximately $10 million annually to employees.  Phosphate Resources Limited (PRL) states that it contributes approximately $7.5 million to the Australian economy through taxes, royalties and levies.  The company employs 127 permanent and 76 casual staff, comprising approximately 19% of the Island’s workforce.  It constitutes 16% of the islands annual economy.

   •Preliminary costing of the total demolition of all infrastructure was undertaken by consultants in 2005/6 for PRL, who stated that provision of $5 568 000 has been made in their current accounts for this purpose.  A guarantee of $1 million has been provided to the Commonwealth for demolition by the company for the existing lease.  However, total cost of rehabilitation of land, and the ongoing long-term costs of managing weeds on mined land, is unknown.

   •The proposal is supported by the Department of Transport and Regional Services (DOTARS) on economic and social grounds.  That Department claims it needs 10 years to transition workers into new economically viable employment or to reach retirement age, although DOTARS has been cognisant since August 2001 that the Department has “grave reservations” about the acceptability of the proposal.

   •The WA Indian Ocean Territories Environmental Performance audit found that “Christmas Island Phosphates represents a medium to high risk to the environment and the health and welfare, convenience, comfort or amenity of the community due to air emissions from their site, conveyance system and loading operations”.

   Factors to be taken into account
   In considering those matters, the Minister must take into account:

   (a) the principles of ecologically sustainable development (set out in Section 3A of the EPBC Act);

   •    The Independent Review (Mattiske 2006) notes that there is a high likelihood that several species will become extinct from the Island within the net 25 years unless biodiversity conservation strategies are adopted (Attachment E).

   •    The independent review on mined land rehabilitation (Attachment D) found that of the approximately 3000ha of previously mined land, 220ha have been rehabilitated.  Due to the finite reserves of topsoil available, only 400ha of the remaining 2780ha will be able to be rehabilitated back to rainforest.  The proposal for further mining recognises that it will result in the permanent loss of more primary rainforest.

   •    The proposal to continue short-term mining on Christmas Island at the cost of the high likelihood of further loss of rainforest habitat, and the consequent facilitation of the extinction of species, is inconsistent with the principles of ecologically sustainable development.

   (b)  the assessment report relating to the action;

   •    See Attachment G.

   (c) if the action was assessed under Division 5 or 6 of part 8 – the report or statement about the action finalised by the designated proponent;

   •    N/A

   (d) if an inquiry was conducted under Division 7 of Part 8 in relation to the action, the report of the commissioners;

   •    N/A

   (e) any other information the Minister has on the relevant impacts of the action; and

   (f) any relevant comments given to the Minister by another Minister in accordance with an invitation under section 131.

   •    The letter to the Prime Minister (Attachment C) inviting comments from relevant Ministers through the Cabinet process.’

   (Emphasis added.)

4. The passages I have emphasised reveal two errors – one important, the other less so.  Attachment A indicated, contrary to the Act, that there was no applicable factor to be considered arising from an environmental impact statement.  This effectively dismissed as irrelevant a mandatory statutory factor to be taken into account.  Later, Attachment A said:

   ‘Minister not to consider other matters
   In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted, by Subdivision B, Division 1, Part 9 of the EPBC Act, to consider.’

   In effect, the Minister was told he did not need to take the environmental impact statement into account and should not do so.

5. The second, less important, error is disclosed by the final passage emphasised.  It was contradicted by the brief itself which proposed that the Minister sign individual letters to his Ministerial colleagues (as he did) rather than consult them ‘through the Cabinet process’.

6. Attachment A also referred to, but did not discuss the effect of, ss 138 – 140 of the Act and the separate statutory prohibitions there contained on proposals which were inconsistent with obligations under international treaties or recovery plans for listed threatened and migratory species.  I shall discuss this issue separately.  It is enough to record, at the moment, that no effective case was made to support the opinion stated in Mr Early’s brief that approval of the proposal was, for that reason, prohibited.

7. The summary of the Minister’s legal obligations was erroneous.  It was contrary to the Act.  I do not doubt that those errors were the product of carelessness at some level.  They may not reveal any misunderstanding by Mr Early, for example, of the need for the Minister to have taken into account the environmental impact statement.  However, as at 14 February 2007, what may fairly be concluded is that, although the environmental impact statement was one of a number of attachments to the Ministerial brief, the Minister was told by Attachment A that an assessment under Division 6 of Part 1 of the Act (i.e. by environmental impact statement) was not applicable to the decision he should in due course make, a draft of which was attached for his approval in principle.  There was no evidence of any oral advice to the Minister, then or later (before the decision was taken), inconsistent with the written brief.

   An error in the earlier judgment

8. As I earlier explained, when PRL’s position changed during the course of oral submissions it sought additional interlocutory orders.  They were refused (Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385) but the refusal was based in part, on an erroneous view of the content and effect of the first brief.

9. One reason (although not the only one) for refusing the orders sought was expressed as follows (at [7]):

   ‘The application for discovery and inspection, which is contained within proposed orders 1 and 2, depends largely on a suggestion that the Minister may not have paid any regard to an environmental impact statement which he was required to consider under the Act.  Exhibit 7 in the proceedings contains a brief provided to the Minister on 2 February 2007.  That brief recommended to the Minister, amongst other things, that he consider his legal obligations for decision making as set out in an attachment, marked A, that he propose to refuse approval for the operations sought by the applicant and that he advise certain Ministerial colleagues of that proposal and seek their response.  Attachment A drew the Minister’s attention to mandatory considerations, with respect to the decision which he would be required to take, and factors which he should take into account in that respect.  His attention was drawn expressly in more than one place to an attachment G which contained the environmental impact statement in question.’
   (Emphasis added.)

10. In that earlier judgment I mistakenly thought that Attachment A to the brief to the Minister dated 2 February 2007 (which advised him of the legal requirements concerning the decision to be made by him) specifically drew his attention to the environmental impact statement prepared by PRL. I did so because Attachment A advised the Minister that ‘Attachment G’ was relevant to mandatory considerations for his attention. However, the Attachment G referred to in Attachment A was not the environmental impact statement (in fact Attachment F to Attachment A) but the assessment report prepared under s 105 (which was identified as Attachment I to the brief). As earlier discussed, Attachment A to the brief did not draw the Minister’s attention to the environmental impact statement but, on the contrary told him that such a statement was ‘N/A’ (not applicable).

11. Although I accept without reservation my own share of the responsibility for not detecting the differences and incongruity between the brief to the Minister and Attachment A to the brief at the time of the earlier judgment, the following should also be noted:

    (a)Mr Early’s first affidavit, to which the documents were attached, drew no attention to the discrepancies or offered any explanation for the erroneous information to the Minister to the effect that an environmental impact statement was not applicable to his decision.

    (b)Neither an affidavit filed in support of the notice of motion or any submission of PRL, written or oral, drew attention to the discrepancies.

    (c)Neither an affidavit filed in opposition to the notice of motion or any submission of the respondent, written or oral, drew attention to the discrepancies.

12. When the true position became clear to me, as a result of my own study of the material, a further opportunity was afforded to the parties to give consideration to the error in the earlier judgment.  PRL’s change of position, that it did not accept the written Statement of Reasons as reliable, also took on added significance in the light of the advice to the Minister in the first brief that an environmental impact statement was not a relevant factor to take into account.  Although PRL had not earlier drawn attention to it, the content of that advice is not easily reconciled with the assertions made in the written Statement of Reasons.  The parties were asked to consider whether further evidence or submissions were necessary.

    The second Ministerial brief

13. On 19 April 2007 the Acting Assistant Secretary of the Environment Assessment Branch, Mr Kahn, sent another brief to the Minister.  Again this brief should be set out in full.  It said (excluding formal parts):

    ‘Timing:
    The statutory timeframe for your decision was 20 February 2007, however, as a result of consultation with your Commonwealth colleagues we have delayed submitting the decision for your final consideration until the completion of the Governor General’s tour of Christmas Island on 5 March 2007.

    Purpose:
    You are required to make a decision to refuse or approve, for the purposes of a controlling provision, the taking of an action under Part 9 of the Environment Protection and Biodiversity conservation Act 1999 (the EPBC Act).

    Background:

    •On 14 February 2007 you agreed to a brief recommending the draft decision to refuse the above proposal. That brief outlined your legal obligations in making your decision under the EPBC Act (Attachment A), and had a copy of the Department’s assessment report.  Given the magnitude of impacts on the matters of national environmental significance outlined in that brief, and the legislative requirement that you must not act inconsistently with the relevant environmental international conventions, the Department recommended that you refuse the proposal.

    •In making the above draft decision, you also wrote to the Minister for Transport and Regional Services, and the Minister for Local Government, Territories and Roads, as required under section 131 of the EPBC Act. You also wrote to the Prime Minister advising him of your proposed decision. The Minister for Local Government, Territories and Roads, the Hon Jim Lloyd MP, and the Minister for Transport and Regional Services, the Hon Mark Vaile MP, responded to your letter (Attachment B).  The Prime Minister and has not replied.’

    Issues/Sensitivities

    •Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, the Department considers it would be in the interests of the long-term protection of the Island’s biological diversity and ecological integrity that the proposal does not proceed.  In signing the draft approval brief at Attachment A, you considered the impacts of mining on Christmas Island ecosystems, as outlined under the key issues heading.

    •The Minister for Local Government, Territories and Road, the Hon Jim Lloyd MP, notes the need to shift the economic reliance of Christmas Island from mining however he is concerned about the reaction of the mining company and the community to your decision.

    •Minister Lloyd is seeking your support with the development of the Government’s strategy to transition the Island’s economic future.  Depending on the intentions of the mining company he may seek your early support to obtain the agreement of senior Ministers to make an announcement indicating the Government commitment to the future of the Island.  He has also indicated he will seek your support for a joint Cabinet submission to follow the release of the Commonwealth Grants Commission report on funding required for the Indian Ocean Territories in October 2007.  A letter (Attachment E) has been drafted replying to Minister Lloyd agreeing to support his proposed approach.

    •Parks Australia, will take the lead on the interests of your Department in the development of a strategy for Ministers’ consideration in October 2007.  Parks Australia North is actively engaged on the Island and has responsibility for managing existing rehabilitation arrangements under a memorandum of understanding with the Department of Transport and Regional Services.

    •A campaign is currently underway supporting the refusal of the release of new areas of land for phosphate mining on Christmas Island.  A refusal decision is therefore likely to be supported by environmentalists.  However, miners on the Island would be expected to respond adversely.

    •A refusal decision does not set a precedent for other EPBC proposals. On three other proposals have been refused under the EPBC Act to date, not counting the Bald Hills wind farm that was subsequently approved. Each proposal is considered on its merits, and ecologically sustainable developments would still be expected to be approved.

    •In discussion with the Department of Prime Minister and Cabinet we have been advised that the Prime Minister may wish to write to HRH the Duke of Edinburgh informing him that the Australian Government is not allowing further mining on the Island.  His Royal Highness has taken an active interest in the environmental protection of Christmas Island.

    •An instrument for the refusal of the action is provided at Attachment C.  No information has been provided to support the reconsideration of your draft refusal decision since you considered the proposal on 14 February 2007.

    •Given the public interest in your decision, a media release and briefing notes are provided at Attachment F.

    Recommendations

    1.Note the brief and assessment report

    at Attachment A  1. Noted / Please discuss

    2.Note the letter from the Minister of

    Local Government, Territories and Roads

    and the Minister for Transport and Regional

    Services at Attachment B  2. Noted / Please discuss

    3.Refuse the proposed action by signing

    The decision instrument at Attachment C     3. Signed / Not signed

    4.Sign the letter at Attachment D informing

    PRL of your decision  4. Signed / Not signed

    5.Sign the letter at Attachment E to the Hon

    Jim Lloyd, Minister for Local Government      5. Signed / Not signed

    Territories and Roads, copying the Prime

    Minister, supporting his approach to

    Developing a transition strategy for

    Christmas Island.

    6.Issue the media release at Attachment F         6. Agreed/Please discuss’

    Attachments:

    A         Draft decision brief and Assessment Report

    BLetter from the Minister of Local Government, Territories and Roads

    CRefusal decision instrument

    DLetter of decision to PRL and consultants

    ELetter to the Minister of Local Government, Territories and Road

    FMedia release and media briefing notes’

    (Emphasis added.)

14. The recommendations were endorsed: 1 – Noted; 2 – Noted; 3 – Signed; 4 – Signed; 5 – Signed; and 6 – Agreed and were signed by the Minister and dated 27/4/2007.

15. Attachment A to the second brief was not the same as Attachment A to the first brief.  Rather, it consisted of copies of the first brief and the assessment report, each of which recommended refusal of approval.  Reference was again made in the second brief to the requirement to comply with international obligations.  No reference was made to the environmental impact statement.  The decision to be made was Attachment C.  It was signed, therefore, in circumstances where the Minister was reminded only about the earlier advice to him from the Department, which was attached again – i.e. the first brief and also the assessment report.

1. When PRL first indicated its change of position the respondent suggested that a presumption of regularity applied to shield the written Statement of Reasons from collateral attack.

2. The written Statement of Reasons gains no additional evidentiary value from any application of this ‘presumption’.  The authors of Cross on Evidence (loose-leaf edition) observe that: ‘in truth the presumption is merely a principle of expediency whereby it falls upon the impinging party to assert and justify the grounds of his attack’.

3. In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA said (at 164):

   ‘The natural home of the maxim is public law.  Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’

4. The principle can have no application here.  The question here is not whether a condition necessary to the exercise of power has been fulfilled but whether the reasons for the exercise of power are as described in a document brought into existence after the power was exercised or should be distilled from an examination of the material before the Minister at the time the power was exercised.  The presumption of regularity cannot prevent an examination of the issue by reference to the available evidence and it does not give evidentiary priority to an explanation brought into existence after the power is exercised.

5. In any event the presumption is rebuttable (Kingham v Sutton [2002] FCAFC 107; 114 IR 137 at [58]). In the present case there was rebutting evidence. That evidence was put forward in the respondent’s own initial case. The later provision of the Ministerial brief of 13 June 2007, if anything, confirmed what was already apparent, namely that the reasons for decision carefully crafted in the Department after they were requested by PRL were not the reasons present to the mind of the Minister, or adopted by him, when he signed the decision on 27 April 2007. In my view there is no room for the operation of the presumption in those circumstances (see also Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548 at 558-9).

   The weight to be given to the Statement of Reasons

6. The respondent argued that PRL had not discharged the onus of showing that the written Statement of Reasons was not a true statement of the Minister’s reasons.  Reference was made, by way of analogy, to Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 (‘W157/00A’) and Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 (‘Navarrete’).  I shall discuss those cases shortly.

7. In the present case, the written Statement of Reasons signed by the Minister, and provided to PRL on 14 June 2007, was admitted into evidence without objection.  It was not verified.  The Statement of Reasons was, initially, simply identified by Mr Early and attached to his affidavit which said:

   ‘28.On 27 April 2007, the Minister made a decision pursuant to section 133 of the Environment Protection Act refusing approval of the Applicant’s proposed action. A copy of the Minister’s decision forms part of Annexure “GPE-22” hereto.

   29.The Applicant subsequently requested that the Minister provide a statement of reasons for his decision of 27 April 2007 pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Minister provided the Applicant with his statement of reasons on 14 June 2007. Annexed hereto and marked “GPE-23” and “GPE-24” respectively are copies of the Minister’s letter to the Applicant’s Managing Director, Mr Lai Ah Hong, dated 14 June 2007 and his signed statement of reasons.’

8. In his later affidavit Mr Early described the procedural steps which were taken in the period between the request by PRL for a formal statement of reasons and when the Minister signed the draft statement of reasons prepared for him by the Department.  He confirmed that:

   ‘19.On 14 June 2007 the former Minister signed the Brief, and signed the draft statement of reasons at Attachment C to the Brief without making any modifications to the draft statement of reasons.  A copy of the draft statement of reasons at Attachment C to the Brief dated 13 June 2007 which was signed by the former Minister on 14 June 2007 is Annexure “GPE-24” to my first affidavit.’

9. Mr Early was not cross-examined.  There was, therefore, no further exploration through him of the mechanism by which the Statement of Reasons was constructed and the basis, so far as Mr Early could have given evidence about it, for the categorically stated findings which were represented as the Minister’s own.  There was no reason why Mr Early could not have been cross-examined about those matters (see e.g. Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61-62) and I must also bear in mind the fact that no objection was taken to Mr Early’s introduction of the Statement of Reasons (cf. Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 (‘Taveli’) and Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 (‘Nezovic’).  However, although those matters must be taken into account they are far from conclusive.

10. In W157/00A a Full Court examined the decision-making processes arising under s 501 of the Migration Act 1958 (Cth) (‘the Migration Act’). Section 501G of the Migration Act required that a notice cancelling a visa on character grounds set out the reasons for cancellation. Those reasons were to be stated, however, in the same notice that set out the decision to cancel. There is, as a result, no parallel with the present case. Branson J (with whom Goldberg and Allsop JJ agreed) pointed out (at [39]) that it was not necessary that the reasons be drafted by a Minister personally. She said:

    ‘In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision.’

11. In Navarrete (another case concerning s 501 of the Migration Act) Allsop J said (at [40]), after referring to Branson J’s observation in W157/00A:

    ‘40If the Minister gave no consideration to the terms of the draft, for instance because the author was known to be reliable and she was prepared to sign a memorandum from that person without giving it consideration, it might be said that there was jurisdictional error for the failure by the Minister to make the decision personally.  However, there was no evidence here upon which I could conclude otherwise than that the draft reasons were adopted by the Minister as her own reasons after due consideration and that she made the decision for herself and adopted the draft reasons therefor.’

12. In the present case the respondent relied on those observations to suggest that there was no reason not to accept that the Minister had adopted as his own the draft reasons put before him on 13 June 2007.  The difficulty this argument faces is that, unlike the position discussed in W157/00A and Navarrete, any such adoption of the reasons occurred after, and not contemporaneously with, making the decision.  A conclusion that the Minister adopted the draft reasons as his own, some six weeks after the decision was actually made, does not resolve the present case in the respondent’s favour.  On the contrary, it highlights the problem which PRL has, somewhat belatedly but nonetheless sufficiently, now identified and relied upon.

13. Another response made by the respondent was to suggest that PRL’s new arguments amounted to an allegation of lack of good faith on the part of the Minister which imposed a further heavy onus on PRL.  In my view this argument proceeds, at least in part, on a false premise.  Uncritical adoption of ‘reasons’ prepared by departmental officers need not involve any lack of good faith.  It may proceed from honest reliance upon the capacity, integrity and diligence of the officers in question.  Courts have repeatedly emphasised that Ministers of the Crown are entitled to rely upon advice and are not expected to be equipped, or able, to give detailed personal attention to every facet of matters which inform a final decision.  As I pointed out earlier, however, errors made in the advice provided to a Minister may become incorporated in the Ministerial decision.  Such errors are not excused legally by the suggestion that the Minister acted in good faith.

14. In Taveli, (although dissenting on the question of admissibility of an unverified statement of reasons to which objection was taken) French J made, with respect, an important statement about the statutory objectives of s 13 of the ADJR Act and the character of written statements of reasons which s 13 requires. His Honour said (at 178-9):

    ‘It is too narrow a view of the policy of the section however to suggest, as did counsel for the respondent, that it was enacted only for the benefit of those who are affected by decisions and who may wish to challenge them. As Professor Pearce has observed, it was implicit in the recommendations of the Commonwealth Administrative Review Committee for the enactment of such a provision, that the giving of reasons will not only reveal defects in the decision but will also lead to better decision making by requiring administrators to identify for themselves the reasons for their decisions –C D Pearce - Commonwealth Administrative Law (1986) - para.357. This is consistent with the evident policy of the legislative scheme for review of administrative decisions reflected in the Administrative Appeals Tribunal Act 1975 (Cth), The Ombudsman Act 1976 (Cth), Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982 (Cth). They provided significantly new opportunities for access to the processes and materials underlying official decision making and substantially widened the bases and mechanisms for review. And although the facilities provided for redress against unlawful or unfair or erroneous decision-making are important elements of these statutes, their overarching objective must be to improve and maintain standards of official fairness, rationality and compliance with the law. It is against that broad policy background that s 13 is to be considered.

    Importantly, the obligation imposed by the section is not satisfied by the provision of an ex post facto justification for the decision under challenge. It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s 13 is clear. It is to set out “the findings on material questions of fact” and “the reasons for the decision”. That does not require the degree of precision or detail which may be appropriate to a judicial decision. But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment. If an official or his or her advisers discover error when asked to provide a s 13 statement, the appropriate course may be to concede that the decision requires reconsideration. It is not appropriate to draft a statement from which the error is censored. The Court is sufficiently aware of the pressures associated with administrative responsibilities for high volume and urgent decision-making to accept that mistakes will occur which can and should be redressed without any personal reflection upon the competence or integrity of the officials whose decisions are under challenge. But the statute requires that a statement provided under s 13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court.

    And it is that statutory context that lays a foundation for the acceptance of a properly authenticated statement of reasons under s 13 as evidence of the truth of what it says, namely, that the findings made, the evidence referred to and the reasons set out were those actually made, referred to and relied upon in coming to the decision in question and that no finding, evidence or reason which was of any significance to the decision has been omitted. That the statement may be used in evidence to support such an inference does not exclude the possibility that a contrary inference may be drawn from its form and contents considered alone or against other evidence in the case. Absent any such contra-indication, the inference that it is an accurate account of the findings and reasons actually relied upon is no more than a piece of circumstantial reasoning not dissimilar in character from that which underlies the so called presumption of regularity or presumption against fraud – P Gillies - Law of Evidence in Australia (1987) pp.85-88. To the extent that evidentiary effect is given to the s 13 statement by a process of inferential reasoning, the term “presumption” may mislead. The inferences which may be drawn about its accuracy as a true account of findings and reasons are derived from the facts implicit in its authentication and that it was prepared by the decision-maker in the exercise of a statutory duty to give such an account of his decision.’
    (Emphasis added.)

15. His Honour repeated the second paragraph quoted above (excepting the first sentence) in Nezovic at [56]. His Honour’s views in Taveli were also referred to with approval by a Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [31] (see also [44]). What is required is a faithful and reliable statement of the reasons that were actually (not ostensibly) present to the mind of the decision-maker at the time the decision was made. For reasons earlier explained, having regard to the material before the Minister at the time the decision was made, the context in which it was made, the matters to which his attention was drawn (and not drawn) and the absence of any other direct evidence concerning the matter, I do not accept that the Statement of Reasons meets the requirements distilled by French J. I am not precluded from concluding, on the whole of the evidence, that the stated reasons deserve no weight (Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 63). Having regard to the matters discussed earlier concerning the structure and content of the Statement of Reasons, and the evidence about what had been put before the Minister before the decision was made, that is the view to which I have come.

16. That conclusion leaves the defects in the decision making process earlier discussed exposed and unprotected.  On that analysis it should be concluded on the evidence that the Minister failed to take into account the environmental impact statement prepared by PRL.  Accordingly, I conclude on the balance of probabilities that the Minister, acting on the advice of his Department, failed to observe a mandatory statutory requirement.  The decision must for that reason alone be set aside.

    OTHER DIFFICULTIES

    International obligations

17. In the first brief the following was said:

    ‘The Department believes that, based on the information provided by PRL, a decision to approve the proposal would be inconsistent with Australia’s obligations under international treaties, and recovery plans for listed threatened and migratory species (Attachment A). Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment I).’

    (Attachment A was ‘Information on legal obligations for decision-making’.  Attachment I contained a number of recovery plans for listed threatened species).

18. As I earlier pointed out, neither of the two briefs to the Minister advanced any case in support of the Departmental opinion that refusal of the proposal was required by s 139 and/or s 140.

19. Attachment A to the first brief to the Minister contained the following:

    ‘Requirements for decisions about threatened species and endangered communities under Section 139
    Insert relevant information about any listed threatened species and endangered communities – eg. Recovery Plans etc.’

20. This suggests that the document was incomplete when provided to the Minister.  Thereunder ss 138, 139 and 140 were set out, with some commentary.  No conclusion was expressed about the question of possible inconsistency.  That is not surprising as the author(s) of Attachment A had not yet provided any factual foundation on which any conclusion could be drawn.

21. Section 139 and 140 of the Act provided:

    ‘139   In deciding whether or not to approve for the purposes of a subsection of section 18 or section 18A the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with:

    (a)       Australia’s obligations under:

    (i)        the Biodiversity Convention; or

    (ii)       the Apia Convention; or

    (iii)      CITES; or

    (b)a recovery plan or threat abatement plan.

    140   In deciding whether or not to approve for the purposes of section 20 or 20a the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval, The Minister must not act inconsistently with Australia’s obligations under whichever of the following conventions and agreements because of which the species is listed:

    (a)       The Bonn Convention;
    (b)       CAMBA;
    (c)       JAMBA;
    (d)       an international agreement approved under subsection 209(4).’

22. In the second brief the Minister was reminded:

    ‘Given the magnitude of impacts on the matters of national environmental significance outlined in that brief, and the legislative requirement that you must not act inconsistently with the relevant environmental international conventions, the Department recommended that you refuse the proposal.’

23. The assessment report prepared by the Department did not mention ss 139 or 140 of the Act. However, it made frequent reference to recovery plans for particular listed species. The recovery plans which were later said, in the Statement of Reasons, to have been provided to the Minister concerned: Christmas Island Spleenwort; Tectaria devexa; Abbott’s Booby; Christmas Island Frigatebird; Christmas Island Hawk-owl; Christmas Island Goshawk; Christmas Island Pipistrelle; Lister’s Gecko and Christmas Island Blind Snake; and Christmas Island Shrew. Although the assessment report expressed concern about possible or likely impacts or ‘additional pressure’ on those species of flora and fauna, there was no statement to the effect that rejection of the proposal was required by s 139 or s 140 of the Act. Rather, the assessment report concluded upon the following note:

    ‘The proposed phosphate mining on the proposed leases will impact upon various matters protected under the EPBC Act. The key issues include:
    •         Loss of primary rainforest and regrowth vegetation;
    •         Impacts on native vegetation and listed flora through edge effects;

    •Inability to rehabilitate the majority of mine sites to original primary rainforest;

    •Loss of habitat for native, endemic and listed mammals, birds, and crabs;

    •The role of clearing rainforest as a contributing factor in the long-term decline and extinction of species; and

    •Spread of introduced flora and fauna that may prey upon, compete with, or displace native species.’

24. Undoubtedly, the most detailed explanation of the Department’s reasons for recommending refusal of PRL’s proposals (even if not the Minister’s own reasons at the date of the decision) is that contained in the Statement of Reasons.  For that reason it is instructive to test the statements in the first two briefs suggesting that the proposal was directly inconsistent with international obligations or recovery plans by reference to it.

1. In the written Statement of Reasons the issue was addressed (although not by reference to ss 139 or 140 of the Act) as follows (at paragraph 129):

   ‘129.I considered that the proposed action would have significant adverse consequences for the achievement of the recovery objectives in the recovery plans of a range of listed threatened species as noted in paragraph 46.’

2. If that conclusion engaged the operation of either s 139 (which refers to ss 18/18A) or s 140 (which refers to ss 20/20A) the Minister would have been, for that reason alone, obliged to refuse approval. No direct statement to that effect was made. Was the matter dealt with indirectly? I think not.

3. Paragraph 46 (which was referred to in paragraph 129) said:

   ‘46.I found that land clearance, including for mines and roads, is listed as a key threatening process under the EPBC Act. I found that land clearance affects listed threatened species, mentioned in paragraphs 56, 58, 82, 87, 90, 95 and 102 and could cause unlisted species to become eligible for listing as threatened. I also found that habitat loss from land clearance was listed as a threat in the recovery plans for listed threatened species noted in paragraphs 56, 58, 82, 87, 90, 95 and 102.’

4. Paragraphs 56, 58, 82, 87, 90, 95 and 102 were as follows:

   ‘56.I found that as stated in the recovery plan for Tectaria devexa, “removal of actual or candidate habitat by phosphate mining or by construction of roads or other developments” and “weed invasion arising from rehabilitation of mined areas or from construction” are potential threats for the species.  I found that PRL proposes to clear vegetation from a number of proposed leases with potential habitat for the species, as noted in paragraph 55, and this would have an adverse impact on Tectaria devexa.

   …

   59.I found that as stated in the recovery plan for Christmas Island Spleenwort, “removal or modification of actual or potential habitat by phosphate mining or by construction of roads or other developments” and “weed invasion arising from rehabilitation of mined areas” are potential threats for the species.

   …

   82.I found that as stated in the recovery plan for the Christmas Island Goshawk, habitat loss from clearing is a threat to the species.  I found that PAN survey data in the recovery plan suggests that most Christmas Island Goshawks (approximately 95%) are located within rainforest areas, and are likely to require rainforest habitat containing suitable trees to breed.  I found as stated by PRL’s consultant EWL Sciences Pty ltd, the significance of the loss of habitat from clearing “will depend upon how rapidly the areas regenerate to a stage when the goshawk can occupy them for hunting and ultimately territory establishment.”  I further found as stated by PRL, that “the re-establishment of potential nest trees might take 20 years or more.”

   …

   87.I found that as stated in the Hawk-owl recovery plan, habitat loss is a threat to the species.  I found that although the Christmas Island Hawk-owl forages in all habitats, the sparse data collected so far suggests that the owl requires mature rainforest trees with hollows for nesting.  I found that revegetation after mining on nesting sites would be long term.  I found that the clearing of some proposed mining leases would result in the loss of some Hawk-owl territories.

   90.I found that as stated in the recovery plan for the Abbott’s Booby, the modification and destruction of the species breeding habitat is a threat.  Modification and destruction of breeding habitat includes mining and rehabilitation practices for mined areas.  I found that clearing for the PRL action will result in the loss of many canopy and emergent canopy trees, as noted in paragraph 45, that the species may be able to use.  I found that the recovery plan for Abbott’s Booby states that “wind turbulence is exacerbated downwind from clearings, with negative impacts on breeding boobies and their habitat.”  I found that the clearing of areas would therefore facilitate the loss of further nest site adjacent to proposed lease areas, due to exposure to wind, and would also reduce the potential for the species to recover.

   …

   95.I found that as stated in the Christmas Island Frigatebird recovery plan, wind turbulence around nesting sites is a cause for concern, and as such, I found that areas adjacent to nesting sites need to be carefully managed.  I found that some research suggests that clearance of vegetation within 300m of nesting sites may have deleterious impacts on the species.  I found that PRL’s consultant EWL Sciences Pty ltd noted that “MCI 70/11, 12 and 13 are about 195 to 300m from these colonies”, but a part of MCI 70/12 “was too steep to survey”.  However, I also found that, based on more recent data from PAN, MCI 70/11 is within 280m of Christmas Island frigatebird nests to the north and 190m to the east.  MCI 70/12 is within 110m of nests to the east.  MCI 70/13 is within 190m of nests to the north.  I found that as stated in the Christmas Island Frigatebird recovery plan, all nesting sites should be considered habitat critical to the survival of the Christmas Island Frigatebird.

   …

   102.I found that as stated in the recovery plan for the Christmas Island Blind Snake and Lister’s Gecko, habitat loss, fragmentation and degradation are listed as threats to both species.  I found that PRL did not find either of those species in surveys.  I found that the reduction in reptile populations has occurred across all different habitat types.  However, I also found that this decline in species populations enhances the value of any remaining habitat for those species.’

5. In none of those paragraphs was any conclusion expressed that approval of the proposed action would be inconsistent with a nominated recovery plan or any of the international obligations arising from conventions referred to in ss 139 or 140 of the Act.

6. Upon the assumption that the written Statement of Reasons provided the most considered and detailed analysis by the Department (even if not the Minister’s own reasons for his decision) there was, therefore, no apparent justification for the assertion in the first brief to the Minister that refusal of the proposal was, in effect, proscribed by the Act itself.

7. That circumstance suggests that the Minister’s attention was directed by the brief to an irrelevant consideration – namely the unsupported assertion that Australia would breach its international obligations if the proposal was approved.  However, that possibility was not identified by PRL.  No submissions were addressed to it by either party.  In the circumstances I will not give it any weight.

   The controlling provisions

8. As earlier indicated, it was conceded on the second day of hearing that there was no basis for a decision that refusal of PRL’s proposals should have effect for ss 16/17B of the Act or ss 23/24A of the Act.  In the case of ss 16/17B that was because PRL had abandoned a proposal to mine within about one kilometre of a Ramsar wetland.  In the case of ss 23/24A of the Act the position was less clear but the admission of error in the decision was not.

9. Section 130(1)(a) of the Act provided:

   ‘(1)Within whichever of the following periods is relevant, the Minister must decide for the purposes of each controlling provision whether or not to approve the taking of a controlled action:

   (a)30 business days, or such longer period as the Minister specifies in writing, if the action is the subject of an assessment report;’

10. Mr Early’s evidence that ss 16/17B and 23/24A were nominated in correspondence to other Ministers, in the draft decision for the Minister’s consideration and in the decision which the Minister finally made, all in error, supports a conclusion that until the written Statement of Reasons was drafted no real thought had been given to which of the controlling provisions identified in 2001 by Mr Early provided statutory support for a decision to reject the proposal.  Rather, until that time, the matter had proceeded upon the footing determined by Mr Early, namely that there were five sets of relevant controlling provisions.  As I said earlier, it does not appear to me that the assessment report gave any specific attention to the question of which statutory provisions underpinned a decision to reject the proposal. 

11. One way of looking at the situation, although not one upon which PRL relied, is that neither the Department nor the Minister took into account the necessity to give the matter further attention until after the decision was actually made.  On that view the Department, and the Minister, failed to have regard to a relevant consideration and failed to act in accordance with the Act.  Even though that was not the way the case was argued by PRL the question remains how the admitted (indeed asserted) errors may be accommodated, if they can be at all.

12. The respondent submitted, relying upon s 16(1)(a) of the ADJR Act, that the ‘errors’ which were made could be addressed by the Court itself without the whole decision being set aside as erroneous or legally flawed.

13. Section 16(1)(a) of the ADJR Act provides:

    ‘(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:

    (a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;’

14. It was suggested by the respondent that I could simply set aside the decision made on 27 April 2007 in part – i.e. to the extent that it had effect for ss 16/17B and 23/24A of the Act. I am not satisfied that would be a correct approach to the issue. As the Minister’s delegate had earlier decided that the action was a controlled action (i.e. required approval) and that five sets of provisions were controlling provisions (see s 67 of the Act) the Minister was required by s 130 to decide whether or not to give approval for each of the controlling provisions and not just for some only of them. Any amendment by the Court to delete a reference to some only of the controlling provisions would leave the statutory duty under s 130 unperformed with respect to those provisions.

15. The power in s 16 of the ADJR Act to set aside part of a decision has not received much attention. However, in United Airlines v Secretary, Department of Transport and Communication (1990) 26 FCR 598, Hill J said (at 605):

    ‘It is true that s 16 of the ADJR Act authorises the Court to make an order quashing or setting aside part of a decision, but that would, in my view, only be in a case where the remaining part of the decision could stand alone if the part set aside were to be severed. Where the consequence of setting aside part of a decision is, as here, that the remaining part of the decision must likewise fall, with the consequence that the whole decision should be set aside, the only proper order of the Court can be that the entire decision be set aside.’

16. The second aspect of the passage arose from the particular facts in that case. The first aspect does not arise directly in the present case but, on one view, does so by analogy. If reference in the decision of 27 April 2007 to ss 16/17B and 23/24A was deleted, could the remaining part of the decision stand alone? The respondent argued that it could. The respondent contended that it would be pointless and inconvenient to require a decision ‘approving’ the proposal for some controlling provisions when the practical effect of refusal for even one set only would be to prevent the proposal going ahead. The respondent pointed to s 133(7) which provides:

    ‘133 (7) If the Minister refuses to approve for the purposes of a controlling provision the taking of an action by the person who proposed to take the action, the Minister must give the person notice of the refusal.’

    and suggested that the statutory obligation would be fully satisfied by modification of the decision so that only the controlling provisions for which the refusal should have been stated to have effect were identified.

17. In my view, this suggested approach pays insufficient regard to the whole of the statutory scheme.  Mr Early had decided that the actions proposed by PRL were controlled actions for five sets of controlling provisions including two sets of provisions which PRL had argued were not engaged.  The effect of that decision was to expose PRL to statutory sanctions under each of the sets of provisions if it acted without approval.  The Minister’s obligation was to make a decision whether or not to refuse approval for each of the controlling provisions which Mr Early had decided were applicable.  I do not accept that it was unnecessary to resolve the matter explicitly for each of the controlling provisions.  The whole scheme of the Act was directed to providing resolution of PRL’s application with respect to each one of the prohibitions, and not just some of them.  I think PRL was entitled to removal of the statutory sanctions which were in place to the extent that refusal of its proposal was not based upon any of the sets of controlling provisions earlier nominated.

18. In my view therefore, if the Court was to edit or re-write the decision in the fashion suggested it would convert it into a decision which did not conform to the Act and which represented a failure to perform a statutory duty.  I am not persuaded that the Court has such a power.  

19. Moreover, the incorrect reliance on ss 16/17B and 23/24A of the Act in the decision strikes at the whole of the decision and not simply part of it. Once the concession was made that the decision was erroneously made with respect to two sets of controlling provisions, legal error in both the decision and the decision-making process was admitted. That is because the identification of the error also revealed a fundamental defect in the process which was followed, whether discovery of the error revealed a failure to take into account a relevant consideration or, alternatively, simply revealed an error with respect to the application of s 130 of the Act. In those circumstances the power in s 16 of the ADJR Act to set aside part of a decision does not appear to me to be available as was suggested. Whatever view is taken of the status of the Statement of Reasons the decision under challenge should be set aside for that reason independently.

20. In any event, I would not, in the present case, make such an order as the respondent sought as a matter of discretion. Here, the decision was intended to be one which conformed to s 130(1) of the Act. It was affected by admitted legal error so far as it was expressed to have effect for ss 16/17B and 23/24A of the Act. In place of that decision one should be made that has effect one way or the other for each of the controlling provisions. PRL is entitled to know, and have a decision by the Minister about, the extent to which it faces statutory sanctions if it acts without approval and the provisions of the Act under which those sanctions might be imposed. That would not be the result if I was to edit or re-write the decision in the way suggested by the respondent, even assuming power to do so.

    SUMMARY OF LEGAL ERRORS IDENTIFIED

21. For the reasons I have explained, the decision of 27 April 2007 must be set aside.  The matters I have identified as legal error are:

    1.On the evidence, the Minister, in acting upon the advice and recommendations in the briefs dated 2 February 2007 and 19 April 2007, failed to observe a mandatory statutory requirement because it should be concluded that he failed to take into account the environmental impact statement prepared by PRL.

    2.In deciding that the decision made on 27 April 2007 took effect for ss 16/17B and 23/24A of the Act the Minister failed to apply the correct statutory tests under the Act.

    DISCRETION

22. Even though legal error has been established the remedies sought by PRL are discretionary.  It would have been open to the Minister to have accepted a realistically expressed analysis of the kind contained in the Statement of Reasons had it been before him at the time the decision was made.  An analysis of that kind might still be accepted if the decision must be made again.  However, since the decision was made on 27 April 2007 both the Minister and the political complexion of the Government have changed.  The two principal documents which the Minister was required to take into account, the environmental impact statement and the assessment report, stated a final position ‘on balance’.  I cannot exclude the possibility that further attention to the matter might result in a different view of where the balance should be struck between the competing priorities which require consideration.  Accordingly, I see no reason to withhold relief in the exercise of any discretion, on the basis that it would necessarily be futile.

    ORDERS

23. Legal error has been established and the decision made on 27 April 2007 should be set aside in its entirety.

    COSTS

24. PRL has not yet made any application for costs.  I will hear the parties on costs, if necessary.  Normally costs would follow the result, but having regard to the reasons expressed above I have real doubt whether PRL is entitled to all its costs and some doubt whether it is entitled to any order for costs.  PRL is to file any application for costs, with a written submission in support, within 14 days.  The respondent will have 14 days to respond and PRL will have a further 7 days to reply, if necessary.  That issue will be decided on the basis of the written submissions unless a party expressly seeks a further oral hearing.

I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        13 October 2008

Counsel for the Applicant:	Mr G R Hancy Ms F C Davis
Solicitor for the Applicant:	Kevin Edwards
Counsel for the Respondent:	Dr M Perry QC Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor

Dates of Hearing:	5 and 6 February 2008 19 March 2008 26 March 2008 1 May 2008 26 June 2008 20 August 2008
Date of Final Submissions:	18 September 2008
Date of Judgment:	13 October 2008