6.1 Textual and contextual considerations
80 First, it is clear that no narrow approach should be taken to the interpretation of legislation having the high public policy apparent in the objects of the Act, as Kiefel J said in Queensland Conservation Council (FCA) at [40]. That said, I accept that the task is "not [to] simply construe everything as broadly as conceivably possible because the Act is broadly about protecting things" (as Mr Lloyd SC submitted for Adani Infrastructure at T6/10/20 at p. 42.34-45; see also the Minister's submissions in chief at [34]). Rather, as Gageler J observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232:
92. The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation "rarely pursues a single purpose at all costs" and that "[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling".
(Citations omitted.)
(I note that s 33 of the Interpretation Act 1987 (NSW) to which Gageler J refers is in substantially similar terms to s 15AA of the Acts Interpretation Act.)
81 Secondly, the potentially detrimental impact on water resources (as defined under the Water Act) from large scale coal mining and coal seam gas extraction is the subject of protection under the EPBC Act because it is regarded as a matter of national environmental significance. This is apparent from the location of ss 24D and 24E in Division 1 of Part 3 which is headed "Requirements relating to matters of national environmental significance" (bearing in mind that the heading comprises part of the Act by reason of s 13(1) of the Acts Interpretation Act). This is also apparent from the objects of the EPBC Act in s 3(1)(a) and the focus of ss 24D and 24E upon "significant impact". Thus the environmental assessment and approval process applying to the subject matter of ss 24D and 24E is no less rigorous than that afforded to any other protected subject matter in Part 3 of the EPBC Act, including the requirement to take into account the precautionary principle in deciding whether an action is a controlled action (s 391, EPBC Act; see also ss 3(1) and (2)). Indeed, in the case of ss 24D and 24E, the assessment and approval processes are more rigorous insofar as the advice of the independent Expert Committee on coal seam gas and large coal mining developments must be sought and taken into account.
82 Thirdly, other provisions of Part 3 of the EPBC Act prohibit the taking of actions that may have a significant impact on a protected subject matter such as listed migratory species, listed threatened species, or the marine environment per se. However, the prohibition in ss 24D and 24E of Part 3 is not simply against taking actions that may have a significant impact on a water resource. By reason of ss 24D(1)(a) and 24E(1)(a), water resources are protected against significant harm from actions only where "the action involves", or an action is taken "involving", coal seam gas development or large coal mining development. As such, only a subset of actions which may have a significant impact on water resources are protected, the purpose of subs (1)(a) of ss 24D and 24E being to require that there is a connection between the action and specific kinds of developments. The impacts of other actions on water resources, such as the construction and operation of a new power station or a dam where no such connection exists, will fall to be assessed only insofar as another controlling provision is engaged. As, for example, Mr Lloyd SC explained for Adani Infrastructure, "[s]o, while section 18 applies to any proposed action that may have a significant impact on a list[ed] threatened species, section 24D(1) does not apply to the universe of actions that are likely to have impacts [on] water resources" (T6/10/20 at p. 42.17-20). As a consequence, as Mr Lloyd SC submitted, the task in construing ss 24D and 24E is to work out the limits of what is protected.
83 Fourthly, in Vincentia MC Pharmacy, Perry and Stewart JJ explained that:
50. … it is generally accepted that the proper course is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome": Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J). Furthermore, as Campbell JA (Beazley and Ipp JJA agreeing) explained in San v Rumble (No. 2) [2007] NSWCA 259 (Rumble) at [52]:
… substituting a definiens [i.e. words or phrases comprising the definition] for a definiendum [i.e. the word or phrase defined] is not the only way of applying a statutory definition to a provision that is being construed. As Windeyer J said in Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (at 69):
"A statutory definition may be only 'a mechanical device to save repetition' …; or it may, by explanation rather than by synonymous expansion, indicate the particular sense in which a word or phrase is used."
84 Thus, McHugh J explained in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] "the function of a definition is not to enact substantive law. It is to provide aid in construing the statute".
85 However, the so-called definitions of "coal seam gas development" and "large coal mining development" are not definitional in any of these senses, as was the case with the "definition" considered in Vincentia MC Pharmacy. Rather, they require an evaluative assessment to be made as to the extent of the impact on water resources by any coal mining activity or activity involving coal seam gas extraction alone or with any other developments, in order to determine whether the "water trigger" in ss 24D and 24E is engaged. In other words, they enact substantive law by prescribing criteria which must be met in order to determine whether ss 24D and 24E apply.
86 Leaving aside the undesirability of such a drafting approach, it follows from the so-called definitions that ss 24D and 24E are also unique in the scheme of the EPBC Act in that they require the impact on a water resource to be assessed at two levels:
(1) with respect to "the action"; and
(2) with respect to relevant "activit[ies]".
(T6/10/20 at p. 49.27-36 (Mr Lloyd SC).)
87 Thus, taking s 24D(1) as the example, if the criteria in the "definitions" of "coal seam gas development" and "large coal mining development" respectively are inserted into the text of s 24D(1) itself, the section would relevantly read as follows:
A corporation must not take an action if:
(a) the action involves;
(i) coal seam gas development, i.e., any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable; or
(ii) large coal mining development, i.e., any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable; and
(b) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
(Emphasis added.)
88 Thus, a distinction is drawn between "the action", on the one hand, and "large coal mining development" or "coal seam gas development", on the other hand. Specifically, while "the action" itself must be likely to have a significant impact on water resources under subs (b), it suffices to satisfy the criteria for a "large coal mining development" or "coal seam gas development" under subs (a) if the impact of the "development" on water resources is likely to be significant when considered with other developments. It follows that subss (a) and (b) serve distinct purposes, although this does not mean that the question of whether the development is likely have a significant impact on water resources must be considered in isolation from the impacts of the proposed action.
89 In the fifth place, as earlier explained, on the delegate's construction the connection required under subs (a) was limited to the physical extraction of lumps of coal from the ground. In support of this construction, Adani Infrastructure submitted that the two expressions, coal seam gas development and large coal mining development:
… run together through the EPBC Act. So they're always used pretty much in conjunction with each other. … We say that it - that this expressly focuses upon an activity that is extractive in nature, that involves coal seam [gas] extraction. In the other one, it is coal mining activity, and that is also activity, which is extractive in nature, but of a - of coal rather than a gas.
(T6/10/20 at p. 47.33-47; emphasis added.)
90 On this construction, there is considerable force in the submission by ACF that "all that would be left" for the water trigger controlling provisions to govern "would be ground water aquifer impacts, such as flow ingress, caused by digging the hole… And potentially, surface water quality impacts and environmental damage to surface water resulting from line [sic] storage" (T6/10/20 at p. 36.16-21). With respect, while Adani Infrastructure sought to deny these consequences of the delegate's construction, it did not satisfactorily explain why ACF's submission was incorrect.
91 In any event, the delegate's construction does not, in my view, pay sufficient regard to language and context, and creates artificial distinctions.
92 Turning first to the word "involve", while this word may mean "embrace", it can also mean (among other things) "affect" or "entail". For example, the Macquarie Dictionary meanings include "1. to include as a necessary circumstance, condition or consequence; imply; entail. 2. to affect, as something within the scope of operation. 3. to include, contain, or comprehend within itself or its scope…." The definition in the Oxford Dictionary includes similar potential meanings (see at paragraphs 6(c) and (d)). The task of statutory construction should not, of course, be a slave to dictionary definitions. However, these definitions usefully illustrate that, while the word connotes the existence of a connection, the precise nature of the connection may vary according to the context in which it is used. That being so, a constructional choice is available which must be resolved, as I have earlier explained, by reading the provisions in context. In this case, in my view the word "involves" was intended to convey that the connection between the action and the specified developments was a looser connection than might have been required if, for example, the Parliament had required that the action "be" or "be part of" a specified development, and necessitates an evaluative assessment of the closeness of the relationship or connection between the action and the development.
93 That ss 24D and 24E were intended to have a broader construction than that accepted by the delegate is supported by other textual considerations.
(1) Given that the so-called definitions of "large coal mining development" and "coal seam gas development" incorporate substantive criteria, this is not a case where the text of the "definitions" can simply be substituted for the "defined" term. As such, contrary to the respondents' submissions, it would not be circular to construe the words of the "definition" having regard to the term supposedly defined: cf The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; cf also Adani Infrastructure's submissions in chief at [43] and the Minister's submissions in chief at [16]). Rather, regard can be had to the choice of the word "development" in ss 24D and 24E in construing the scope of the water trigger controlling provisions. That word suggests in its ordinary meaning that Parliament did not intend to limit coal seam gas and large coal mining developments to the physical process of mineral or coal seam gas extraction, that is, "the detaching of lumps of material from the position in which in a state of nature they form part of the soil" (as Kitto J described mining in its narrow sense in Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 240 (Broken Hill (Kitto J)). Rather, the word "development" is suggestive of a broader concept which embraces, at a minimum, those activities which are integral to the mining of coal.
(2) Consistently with this construction, the so-called definition of large coal mining development is not limited to "coal mining". Rather it embraces "any coal mining activity". In line with orthodox principles of statutory construction, all of these words must be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. In this case, as ACF submits, to confine the phrase "coal mining activity" to "the process of extracting coal from a mine" as construed by the delegate leaves no work for the word "activity" to do. Yet the use of the word "activity", especially when combined with the word "any", is strongly indicative of an intention to capture a broad range of activities within the concept of a large coal mining development and certainly those so closely associated with the mining of coal that mining could not be undertaken without the activity in question.
(3) Equally, the phrase "any activity involving coal seam gas extraction" is suggestive of an intention to capture activities integral to coal seam gas extraction and not to limit the concept of coal seam gas development to the physical extraction of coal seam gas. Otherwise, there is no reason why the Parliament could not have simply have referred to "coal seam gas extraction" simpliciter in the definition of "coal seam gas development". It follows that the construction for which ACF contended in oral submissions does not lead to disharmony in the scheme of the provisions by introducing a significantly broader field of operation for the definition of "large coal mining development" as opposed to what Adani Infrastructure referred to as its "cognate definition" of "coal seam gas extraction" (cf Adani Infrastructure's submissions in chief at [30]-[31]). Both were, in my view, intended to have a similarly broad scope.
94 Sixthly, this construction best promotes the purposes of the EPBC Act and must therefore be preferred in accordance with s 15AA of the Acts Interpretation Act. As ACF submitted:
41. The evident object of the statutory scheme, of which the phrase "large coal mining activity" in s 528 forms a part, is to regulate large coal mining developments and their impacts on water resources.
42. This strongly suggests that the object of the statutory scheme is not limited to the process of coal mining itself. Rather, the object of the scheme is directed to the range of activities undertaken for a "large coal mining development" and which have, or are likely to have, a significant impact on water resources and prohibit any such action that has not been formally assessed and approved under the Act.
95 That purpose is confirmed by the 2013 Second Reading Speech with respect to the Bill inserting ss 24D and 24E into the EPBC Act (s 15AB, Acts Interpretation Act; see also The Bay Street Appeal at [5] (Allsop CJ)). In particular, in the 2013 Second Reading Speech, the Minister explained that:
The challenge we have had up until now is that people quite reasonably expect the minister for the environment and water to take into account, by law, the impacts of coal seam gas and large coal mining on water resources. They want to know that I am considering: if there is an irreversible depletion and contamination of our surface and groundwater resources; the impacts on the way critical water systems operate; and the related effects on our ecosystems.
(Emphasis added.)
96 While the respondents submitted that the 2013 Second Reading Speech supported their narrow construction because the Minister emphasised that the amendments were "not a broad trigger", that statement is explained by the previous paragraph where the Minister said that:
The amendment does not seek to invoke the Commonwealth in all water decisions. The trigger will not capture small projects such as farm dams. The amendments will create a new matter of national environmental significance for coal seam gas and large coalmining developments which are likely to have a significant impact on a water resource. It will provide the strong legal basis for protection that the community wants.
97 As such, the Minister was saying no more than that the water trigger controlling provisions were confined to coal seam gas and large coal mining developments. His words lend no support to the view that those developments should be narrowly construed.
98 It follows that the mischief to which ss 24D and 24E are directed does not support the narrow construction of the water trigger controlling provisions adopted by the delegate. That construction would potentially leave adverse impacts of the kind described in the 2013 Second Reading Speech unregulated by the Commonwealth in circumstances where any later, alternative water source for a coal mine was proposed.
99 This last point is particularly important. It highlights the anomalous results which would flow from the construction for which the respondents contend. In this regard, as Mortimer J said in Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1:
231. … Reasoning by reference to consequences can be seen as another way of testing various constructional choices against the identified purpose of the provision in question, read in the context of the purposes of the legislative scheme as whole. Reasoning by reference to consequences may also help elucidate the situation to which Gleeson CJ referred in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]-[6]: namely that statutes involving comprises or striking balances between competing interests may not be susceptible to an assumption that the scheme has a singular purpose. Sometimes, teasing out the consequences of various constructions can assist in determining whether the provision in issue is one of those where there are competing interests and a balance to be struck, and how the statute strikes that balance.
100 Thus, on the one hand, Adani Infrastructure accepted that where a person seeks approval for a coal mine and the referral explains that water will be sourced from a particular location and involve particular infrastructure, these aspects of the proposal would constitute part of the referred action. Adani Infrastructure also accepted that, because the referral in such a case would involve a coal mining activity, the action would constitute a "large coal mining development". As a result, Adani Infrastructure accepted on this scenario that all water resource impacts would have to be assessed as part of the initial assessment and approval processes for the mine (see eg T6/10/20 at p. 44-47, esp at p. 47.15, and p. 63.36-64.2). Indeed, Mr Lloyd SC on behalf of Adani Infrastructure submitted that "the legislature, we say, would have known that in order for an approval of a coal mine to be approved, there must have to be some kind of water supply done" and that it was unrealistic to suggest that approval would initially be given to a coal mine in the absence of this aspect of the proposed action being included in the referred action (T6/10/20 at p. 44.45 (emphasis added). In other words, he submitted that "in practice, in relation to a mine proposal, it's hard to see that a mine would ever be approved without being satisfied of water arrangements. And so, at that inception stage, that would be so." (T6/10/20 at p. 64.17-18, emphasis added).
101 On the other hand, Adani Infrastructure submitted that if an alternative or new water source and associated infrastructure was proposed later in time after the initial approval for the mine, the proposed action would not constitute a "coal mining activity" but "just a supply of water to a coal miner" (T6/10/20 at p. 64.24). As such, on its argument, in this scenario the proposed action would not engage the water trigger in ss 24D and 24E of the EPBC Act irrespective of whether or not the proponent was a different legal entity for the purposes of s 74 and irrespective of whether its impact on water was as significant, or indeed greater, than that initially assessed with the original coal mine proposal.
102 Adani Infrastructure appeared to submit that this construction was consistent with the objects of the Act because what was now sought was "just a supplemental or alternative source of water" in circumstances where the original approval of the coal mine would have assessed the impacts on water resources albeit from a different source (see eg T6/10/20 at p. 45.2-10). However, that submission cannot, with respect, be correct. Among other things the impacts must be assessed not only by reference to the volume of water extracted, but by reference to all aspects of the water resources including organisms, ecosystems, and other water systems (see the definition of "water" at [50]-[51] above). Those impacts will of their nature vary according to the location from which the water is to be extracted.
103 No other reason was given by the respondents as to why the Parliament would have intended that water impacts be assessed when approval is being sought for a coal mine, but not if it is later proposed to construct and operate infrastructure to harvest water for the mine from an alternative source. Nor is any such reason apparent. To the contrary, if the impact on water resources at the time of the original approval was regarded as a matter of national environmental significance, there is no reason why it would lose that significance merely because the issue arose subsequently in relation to an alternative water source. That would undermine the objects of the EPBC Act in s 3(1) and the purpose of the water trigger controlling provisions as elucidated by the Minister in the 2013 Second Reading Speech.
104 In the seventh place, it is clear that care must be taken in relying upon different terms construed in different statutory contexts (as the Minister submits in his submissions in chief at [26]). Nonetheless, some support for attributing a broad construction to the expression "any coal mining activity" may be derived from a similarly broad construction adopted with respect to the phrase "mining operations" in legislation giving favourable treatment to taxpayers engaged in that activity: see by analogy the reasoning in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [308] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in construing the phrase "mining purposes" in a mining lease. Thus in Broken Hill (Kitto J) at 244-245, Kitto J held that the expression "mining operations":
… is wider than "the working of a mining property". It embraces not only the extraction of mineral from the soil, but also all operations pertaining to mining: Parker v Federal Commissioner of Taxation. Thus it comprehends more than mining in the narrow sense which imports the detaching of lumps of material from the position in which in a state of nature they form part of the soil. It extends to any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the mineral … Likewise it extends to any work done on the property subsequently to the winning of the mineral (e.g. transporting, crushing, sluicing and screening) for the purpose of completing the recovery of the desired end product of the whole activity … In each case it is the close association of the work with the mining proper that gives it the character of operations pertaining to mining.
(Citations omitted and emphasis added.)
105 On appeal, Barwick CJ, McTiernan and Menzies JJ disagreed with Kitto J's second proposition insofar as Kitto J regarded the phrase "as extending to the disposal of the product mined". Importantly for present purposes, however, their Honours agreed that "mining operations" covers "any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the mineral" (Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 268 at 272-274.
106 Furthermore, this decision illustrates that to attribute such a broad meaning to the term "mining operations", and by analogy, "mining activities", does not impermissibly read words into the expressions used, as opposed to giving effect to the language which is used (cf the submissions of Adani Infrastructure in chief at [41] and the Minister's submissions in chief at [23]).