THE APPEAL
46 The grounds of appeal are as follows:
1. The primary judge:
a. erred by interpreting the Statement of Reasons as including a determination by the Minister as to whether or not the physical effects of climate change on the Great Barrier Reef were an "impact" of the action within the meaning of s 527E of the [Conservation] Act;
b. should have found that the Minister failed to apply s 527E when considering the physical effects of climate change on the Great Barrier Reef.
2. Alternatively, if, on a proper interpretation of the Statement of Reasons, the Minister did purport to determine whether or not the physical effects of climate change on the Great Barrier Reef were an "impact" of the action within the meaning of s 527E of the [Conservation] Act, then the primary judge:
a. erred by failing to hold that the Minister misdirected himself as to the correct question under, or that he misapplied, ss 82(1), 136(2)(e) and 527E of the [Conservation] Act; or
b. erred by failing to hold that, on the facts as found by the Minister in paragraphs 131-141 of the Statement of Reasons, it was not open to the Minister to determine that the physical effects of climate change on the Great Barrier Reef were not an "impact", within the meaning of ss 82(1) and 527E, properly construed.
47 In its written submissions on appeal at paras 6 and 7, ACF asserted that the Minister had found that:
6. [T]he harmful effects of climate change (increased ocean temperature and acidification) are the most serious threat to the Great Barrier Reef; (b) these effects will get worse, and their extent and persistence depends on how effectively the issue of rising levels of greenhouse gases is addressed worldwide (that is, the Minister accepted the effects were caused by greenhouse gas emissions); (c) it was possible to determine a possible total quantity of greenhouse gas emissions from transport and combustion of the coal from the mine, being 4.64 billion tonnes of carbon-dioxide-equivalent greenhouse gas emissions (CO2-e) over the life of the mine.
7. These three findings were sufficient for, and necessitated, the conclusion that future harmful effects of climate change on the Great Barrier Reef were potential "impacts" (within the meaning of s 527E(1)(b) and (2) of the Act) of the action. Had the Minister appreciated this, he would then have had to consider whether the impacts were "likely", and therefore "relevant impacts" (Footnotes omitted.)
48 At paras 8 and 9, ACF then submitted:
8. Instead, the Minister considered "[t]he actual quantity of emissions that is likely to be additional to current global GHG emissions" or "the actual net emissions", after taking into account the following "variables": (a) "whether the coal replaces coal currently provided by other suppliers"; (b) "whether the coal is used as a substitute for other energy sources"; and (c) "the efficiency of the coal burning power plants".
9. The apparent relevance of (c) is that the amount of emissions might be less than 4.64 billion tonnes CO2-e, but the Minister did not suggest that the resultant amount would be so reduced that climate change effects from the emissions would be insubstantial. The relevance of (a) and (b) is that, if the mine did not proceed, the same amount of greenhouse gas emissions might be produced from other sources instead. This is what the Minister meant by the "actual quantity of emissions that is likely to be additional to current global GHG emissions" and "the actual net emissions": the harm to the Great Barrier Reef might be the same, but be caused by someone else.
49 Curiously, ACF does not assert, as a ground of appeal, that the Minister failed to take account of relevant matters, or took into account irrelevant matters. Rather, it asserts that the Minister did not have regard to the definition of the term "impact" in s 527E, and so did not identify the effects of the overseas emissions as being impacts. ACF submits that the primary Judge adopted an unduly generous approach to the adequacy and/or effect of the Minister's reasons. His Honour gave close consideration to decisions concerning the proper judicial approach to reasons for administrative decisions. We have previously set out his Honour's understanding of the effect of the Minister's reasons. We see no reason to conclude that his Honour in any way misconstrued them. It follows that we consider ACF's submission to be without merit.
50 In considering the Minister's reasons, one must keep in mind the fact that the decision authorised by s 130 is, by definition, a decision to allow, or not to allow a proposed action which will, or is likely to, have a significant impact on a matter protected by a provision in Pt 3. It cannot be a valid criticism of any such decision that it permits an action which will, or is likely to, produce such an impact. Whilst the matters relevant to the decision are prescribed, primarily in Pt 9, there is no particular matter of which the Minister must be satisfied. The Minister is not required to make intermediate decisions concerning "impacts" or the causes of impacts. The decision may well have political consequences. That is a matter for the Minister and the government. We make these observations simply because much of ACF's case seems to be based on the proposition that the decision cannot be correct because the Proposal will, or is likely to, cause some damage to the Reef.
51 The Minister's reasons are relatively short but are obviously based on extensive evidence, which evidence had been assessed pursuant to the Queensland Bilateral Agreement. An important aspect of the Minister's reasoning concerned the existence in Australia of governmental measures which would regulate the anticipated Scope 1 and Scope 2 emissions. Similarly, the Minister understood that the provisions of the United Nations Framework Convention on Climate Change and the Kyoto Protocol, place responsibility for dealing with the overseas emissions upon the countries consuming the coal. Paragraph 141 of the reasons demonstrates that the Minister considered that those national and international arrangements would manage and mitigate emissions in Australia and the overseas emissions. In its submissions, ACF largely overlooks that aspect of the reasons.
52 We consider that ACF's focus on ss 82, 136(2)(e) and 527E has led it into error. The Conservation Act identifies three phases in the process leading to a decision to approve or not approve an action. First, the Minister must decide whether the proposed action needs approval. If he or she so decides, then he or she must identify the relevant controlling provisions. Second, an assessment report will be prepared pursuant to s 47(4), s 84(3) or s 87(4). See s 136(2)(b) and s 130(2). In each case, the assessment report must address the relevant impacts which are, as we have observed, impacts on the protected matters identified by the Minister pursuant to s 75. Third, the Minister makes his or her decision, based upon the matters identified in s 136 and, perhaps, elsewhere in the Conservation Act.
53 The Minister is directed by s 136 to consider, "matters relevant to any protected matter". He or she is not required to decide, at that stage, whether or not a particular event or circumstance is an "impact" or "relevant impact", save for the purpose of deciding whether s 136(2)(e) has been engaged: that is, for the purpose of deciding whether there is material identified by that provision, which material, he or she must consider. In this case the new information was such material. The identification of controlling provisions and relevant impacts are primarily steps designed to provide a structure within which the assessment of the relevant action may be conducted. Those concepts will generally be irrelevant to the Minister's decision pursuant to s 130. Of course, the likely consequences of the overseas emissions had to be considered, but that exercise did not necessarily involve applying either s 82 or s 527E. However, as the primary Judge found, the Minister adopted some of that statutory language.
54 ACF's submissions contain two anomalous aspects.
55 The primary Judge observed at [68] that ACF had submitted that the Minister's erroneous approach involved certain steps, including:
...
(b) the harm to the Reef caused by the combustion emissions is a relevant impact in respect of the Reef unless:
• it is not likely to occur (as Kiefel J found in Nathan Dam at first instance at [39]); and
• it did not meet the test in any of ss 527E(2)(e), (f), (g), and the Minister's characterisation of the determination of combustion emissions as "speculative at this stage" did not involve an application of these criteria ...
...
56 Although that proposition is said to be evidence of the Minister's error, we think it more likely that ACF meant that the Minister's reasons were inconsistent with it. For the reasons that we have given, we do not consider that the Minister needed to have specific regard to those provisions. However the effects of the Proposal were to be considered pursuant to s 136. We do not understand the relevance of ss 527E(e), (f) and (g) for present purposes. They prescribe some of the circumstances necessary in order that an event or circumstance be an impact. We doubt very much that there could have been any dispute concerning these matters. We readily infer that the Minister assumed that those conditions were satisfied for the purposes of his consideration of the new information.
57 In ACF's submissions on appeal, at paras 38 and 39, it seems to submit, at least tacitly, that the overseas emissions should have been "referred" for "assessment". It is not clear to us whether the submission is that the matter should have been referred for assessment pursuant to the Queensland Bilateral Agreement, or whether the submission is that the Minister should have, himself, assessed the matter. The former course would be authorized by s 132. In our view, the Minister took the latter course. There is no attack upon his failure to proceed pursuant to s 132.
58 Section 136(1)(a) required the Minister to consider matters relevant to any protected matter. Section 136(2)(e) limited the "other information" to be considered by requiring that it be "on" the relevant impacts, namely impacts on the protected matters. In this case, it was not necessary that the Minister decide whether the overseas emissions were relevant impacts. He rather had to consider whether the new information was "on the relevant impacts" of the Proposal. In our view he accepted, or perhaps assumed, that the new information was "on the relevant impacts", and so he addressed it in his consideration of matters relevant to the protected matters. Whilst ss 82 and 527E(2) were part of the statutory framework pursuant to which the Minister granted the approval, there was no need, in this case, for a detailed consideration of those provisions in connection with the process prescribed in ss 130 and 136. Further, nothing in the reasons suggests that the decision was based on any erroneous view of the effects of those provisions. We find it difficult to avoid the conclusion that ACF's submissions are based on the proposition that the Minister could not reasonably have reached the decision which he did, absent some misunderstanding. Its submissions concerning ss 82 and 527E seem to be little more than an attempt to characterise as a procedural error, criticism concerning the merits of the decision.
59 Consideration of the new information concerning the overseas emissions involved evaluation by the Minister of the likely impact of such emissions upon the protected matters. That is the process which the Minister undertook at paras 131-141. The outcome of the evaluation is set out in paras 140 and 141. No doubt, that outcome formed part of the basis upon which he decided to grant the approval. It follows that both grounds of appeal must fail.
60 In any event, we consider that the primary Judge correctly outlined the Minister's reasons. In effect the Minister found that:
greenhouse gas emissions pose an existential threat to the Reef;
the extent and persistence of such impacts depend to a large degree on how effectively the issue of rising levels of greenhouse gases is addressed worldwide;
the transportation and combustion overseas of the coal to be mined, would produce substantial quantities of greenhouse gasses;
those overseas emissions would be indirect consequences of the Proposal;
any increase in greenhouse gas emissions in excess of current emissions, caused by the overseas emissions would depend upon a number of variables including:
• whether the mined coal would replace coal currently provided by other suppliers;
• whether the burning of the mined coal would be a substitute for other energy sources;
• the efficiency of coal burning power plants; and
• the international obligations of coal burning countries to address the emissions within their respective borders;
it is not possible to draw robust conclusions as to the likely extent to which the Proposal would contribute to increased global temperatures as a result of the overseas emissions; and
it is therefore difficult to identify a relationship between the Proposal and any impacts on relevant matters of national environmental significance which may occur as the result of any increase in global temperature.
61 It is important to note that the Minister's understanding of the material before him was that the "issue" was rising levels of greenhouse gasses. That understanding of the material has not been challenged. The Minister was not satisfied that the overseas emissions would contribute to increased levels of greenhouse gases and, therefore, further rises in temperature. He did not say that the overseas emissions would not contribute to the maintenance of current levels of greenhouse gas emissions and present temperature levels. There may be good grounds for disagreeing with the Minister's decision, but that is not our concern in an appeal limited to the lawfulness of that decision. We see no justification for the assertion that he did not take into account the possible impacts of the overseas emissions on the level of greenhouse gases in the atmosphere, the consequences thereof and their impact on the Reef and on the protected matters. In our view the Minister's reasons reflect a proper discharge of his statutory duty.