The Third Ground
108 Section 136(1)(a) of the Act required the Minister in deciding whether or not to approve the channel deepening project to consider matters relevant to the matters protected by the provisions in Part 3 by virtue of a decision of the Minister, namely, listed threatened species, listed migratory species, Ramsar wetlands of international importance and Commonwealth land.
109 The applicant argued that the Minister failed to consider three matters which were relevant, namely, the impact of maintenance dredging, the impact of oil or chemical spills, and the impact of the removal and disposal of toxic sediment in the north of Port Phillip.
110 Further, it was contended that the Minister failed to consider the protected matters taking into account the principles of ecologically sustainable development contrary to s 136(2)(a) of the Act. These failures were said to give rise to rights of review under s 5(1)(e) with s 5(2)(b) (failing to take a relevant consideration into account) and s 5(1)(b) (procedures required to be observed were not observed) of the ADJR Act.
111 As to the first limb of the ground, it was necessary for the applicant to establish that s 136(1)(a) bound the Minister to take into account the three allegedly relevant matters. The proper approach was explained by Mason J in Peko-Wallsend Ltd at 39 - 40 as follows:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233.
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(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion… If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) HCA 62; (1979) 144 CLR 45 at 49-50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning[1947] HCA 21; (1947) 74 CLR 492 at 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
112 And in Elias v Commissioner of Taxation (2002) 123 FCR 499 at 511;[2002] FCA 845 at [57], Hely J said:
Where, as here, a discretion is conferred in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not. It is largely for the decision-maker, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the compliant is that the decision-maker paid either too little or too much attention to a relevant factor: Aronson & Dyer, Judicial Review of Administrative Action (2nd ed, 2000), p 225.
113 The applicant sought to make a case that the Minister was bound to take into account the impact of maintenance dredging, the impact of oil or chemical spills, and the impact of the removal and disposal of toxic sediment in the north of Port Phillip by implication from the subject matter, scope and purpose of the Act. The subject matter, scope and purpose of the Act was approached in the following way. The Act employs an assessment process to inform the Minister's decision. The process requires an assessment of relevant impacts of the action contemplated (s 87(1)). Relevant impacts are impacts which the action has, will have, or is likely to have, on the protected matters (s 82(1)). An impact is defined as an event or circumstance which is a direct consequence of the action, or where the event or consequence is an indirect consequence of the action, the action is the substantial cause of the event or circumstance (s 527E(1)). Certain secondary actions are within the definition of impacts if they are the foreseeable consequence of a primary action, and within the contemplation of the person undertaking the primary action (s 527E(2)). The applicant's written supplementary submissions then contended at [39]:
It can be discerned from the scope and purpose of the EPBC Act that:
a) a subsequent action made necessary by the action and the impacts of the subsequent action; and
b) a risk assessed as overall significant (or as not insignificant or negligible) by reference to both the terms of likelihood of occurrence and in terms of the magnitude of consequences
ought to be taken into account.
114 In order to establish this ground, the applicant presumably intended that the words "ought to" be read as "must".
115 Section 136(1)(a) left it to the Minister to decide what were the matters relevant to the protected matters which he should take into account. The section does not suggest that there was a defined set of specific matters to be taken into account such as might be intended if the section had referred to "all matters relevant" or "the matters relevant".
116 In his statement of reasons, the Minister discussed each of the protected matters, namely, the listed threatened species, the listed migratory species, the Ramsar wetlands of international significance, and the environmental impact on Commonwealth land in the area. In this discussion he considered matters which he had determined to be relevant to those protected matters.
117 There is nothing in the subject matter, scope or purpose of the Act which required the Minister to take into account the impact of maintenance dredging, the impact of oil or chemical spills or the impact of the removal and disposal of toxic sediment in the north of the Bay. The Act required him to be provided with an assessment report with sufficient information on the impacts of the project to allow him to make an informed decision, and required him to make his decision within a very short timeframe. The assessment report synthesised the material from the EES, SEES, the 2005 and 2007 inquiry reports and the IEG report. In these circumstances, the subject matter, scope and purpose of the Act justified the Minister placing considerable reliance on the assessment report.
118 In relation to maintenance dredging, this was to occur in the future and was excluded from the channel deepening project under consideration by the Minister. It was not the subject of the approval decision. It would be subject to separate referral and assessment in the future. There was no certainty that such maintenance dredging would be necessary in the future. The purpose of the Act was served by the requirement for approval under the Act in the future when further maintenance dredging was to be undertaken. The applicant contended that it was not open to the Minister to defer consideration of the impact of maintenance dredging, and relied upon the reasoning of the majority (Sheppard and Ryan JJ) in Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65. In that case, the Pharmaceutical Benefits Tribunal deferred consideration of labour costs when fixing the way in which pharmaceutical benefits payable by the Commonwealth were to be calculated. The majority held that the Tribunal had failed to take into account a relevant consideration, namely, the impact of labour costs. However, the majority held that the scope and purpose of the legislation governing the fixing of pharmaceutical benefits indicated that labour costs had to be taken into account. As I have said, the scope and purpose of the Act in this case does not indicate that the impact of maintenance dredging had to be taken into account. The case does not assist the applicant.
119 In relation to the possibility of oil and chemical spills, the risk assessment in the SEES rated the risk of a major oil spill from collision with the dredger in the Bay as almost impossible, and the chance of a collision with the dredger in the entrance to the Bay leading to an oil spill as around 3 in 1 million. In these circumstances it cannot be said that the subject matter, scope or purpose of the Act implicitly required this matter to be taken into account by the Minister when considering whether or not to approve the channel deepening project.
120 In relation to the impact of the removal and disposal of toxic sediment in the north of Port Phillip, the Minister expressly referred to the impacts from contaminated sediments in relation to the wetlands of international importance. He said at [38]:
I found, having particular regard to the SEES, that impacts from contaminated sediments are not likely within the wetlands, given the limited extent to which contaminants could be mobilised.
121 There was voluminous material before the Minister, including the 2007 inquiry report, which expressed the expert view that the risk from contaminated sediments had been properly and adequately addressed. The 2007 inquiry report was part of the assessment documentation before the Minister which was intended by the Act to give the Minister a basis for determining his approach to the approval decision. For example, on the issue of management of the dredged material, the 2007 inquiry report included the following:
2.4 Dredged Material Management
The Inquiry considers that the risks of dredging the Bay sediments have been characterised adequately against relevant guidelines.
The contamination risks and potential bioaccumulation, stemming from the Yarra River arises principally from unconsolidated silts carried in runoff from the catchment into the Bay, affecting it and users. This runoff, often associated with flooding events, will continue, irrespective of whether the CDP [channel deepening project] goes ahead.
Accordingly, the Inquiry finds implications for bioavailability and bioaccumulation in Port Phillip Bay are generally low at present although evidence indicates some issues of concern (such as eels). The additional risks due to the CDP will therefore be minimal. Management of these materials should aim to minimise the risk. The decision to contain unconsolidated material (assumed to be unsuitable for unconfined marine disposal based on the National Ocean Disposal Guidelines (NODG) classification), and localised consolidated sediment volumes classified as unsuitable, is endorsed by the Inquiry. Moreover, the IEG [independent expert group] advised that the technology used to manage these sediments is best practice.
To provide assurance to the community, the IEG advised that the EMP should monitor the additional risk to human consumption of disturbing sediment during dredging. The Inquiry concurs with this advice.
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The NODG are recognised best practice for classifying sediment chemical and toxicological characteristics, while Best Practice Environmental Management Guidelines apply to dredge material management and other matters.
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2.5 Inquiry Finding
The Inquiry is satisfied that based on the SEES, peer reviews and IEG advice, the proposed design complies with relevant policy. The Inquiry concludes the proposed CDP design (including for the Channels, dredged material grounds and navigational aids) is safe, suitable and technically feasible to implement using the proposed dredging technologies.
(original emphasis.)
122 Such information indicated that there was no significant environmental impact from the proposed process for dealing with toxic sediments. The subject matter, scope or purpose of the Act therefore did not require the Minister to consider this as a relevant matter. He was free to do so if he chose, as he did in the case of the wetlands where he indicated in the statement of reasons that they were not likely to be affected.
123 Even if, contrary to the view just expressed, the Minister was required to consider these three matters, the question arises whether the applicant has shown that the Minister did not consider them. The evidence from the Minister's notation on the departmental briefs of 7 December 2007 and 20 December 2007 demonstrates that he considered the assessment documentation. The submissions of the second and third respondents in particular set out in great detail the discussion of each of these matters in the various environment effects statements and inquiry reports. It is not necessary to traverse that material now. Rather it is sufficient to observe that the material shows that each of these matters was dealt with in detail in the assessment documentation which was before the Minister. Some of the matters were expressly referred to in the statement of reasons, such as the impact of contaminated sediment on the wetlands referred to in [38]. The mere fact that not every issue was addressed in the statement of reasons or in the departmental advice contained in the departmental briefs does not prove that the material was not considered by the Minister. There are other explanations for the absence of mention of the matters in the statement of reasons. The Minister may have excluded some on the basis that they were not sufficiently important, or that the environmental concern was not sufficiently in question to warrant express mention. There is no reason to doubt in the circumstances of this case that the Minister did as he noted on the departmental briefs, namely, that he considered the assessment documentation provided to him. The applicant has thus not established that the Minister's assertion in the departmental briefs did not represent the fact. Consequently, the first part of the challenge to the Minister's decision in ground three has not been made out.
124 The second part of the challenge to the Minister's decision under ground three argues that the Minister failed to take into account the principles of ecologically sustainable development when considering matters relevant to the protected matters under s 136(1)(a). This argument is the same as that raised in ground one regarding social matters under s 136(1)(b). As discussed in [71] of these reasons there is no reason to doubt the Minister's statement in [60] of his statement of reasons that he took into account the principles of ecologically sustainable development when considering his approval decision. As stated in [78] of these reasons, the Minister was entitled to consider the matters together and take a global approach to the application of the principles of ecologically sustainable development referred to in s 3A. The applicant has not pointed to any matter of substance which demonstrates that the Minister's statement of reasons does not reflect the true position. There was little scope to apply the principles of ecologically sustainable development to the consideration of the protected matters because in nearly all instances the Minister made an express finding that the protected matter would not be significantly affected by the channel deepening project.
125 Again, as found in [89] of these reasons regarding social matters, there is evidence in the statement of reasons apart from the assertion in [60] that the Minister applied the principles of ecologically sustainable development to the consideration of protected matters as well. For instance, in [43] he required the PMC to fund measures concerning the wetlands and migratory birds and hence applied the principle referred to in s 3A(e). The assessment documentation, considered by the Minister, examined in depth the environmental effects on the protected matters and the assessment report found that principles of ecologically sustainable development had been given careful consideration throughout the assessment process. The second part of the challenge under ground three must also be rejected.