Consideration
45 For the reasons that follow, the applicant's first contention should not be accepted.
46 First, the phrase "agreement that is in force" (in the definition of "RFA" in s 4 of the RFA Act) is used in relation to an intergovernmental agreement between the Commonwealth and a State.
47 In the course of submissions, the parties referred to the judgments of Dixon CJ, Kitto and Windeyer JJ in South Australia v Commonwealth (1962) 108 CLR 130. The applicant submits that South Australia v Commonwealth is not authority for the proposition that an intergovernmental agreement is, by its nature, unenforceable. So much may be accepted: Dennis Rose, "The Government and Contract" in P D Finn (ed) Essays in Contract (Law Book Company Ltd, 1987) 240. Nor, however, is it authority for the proposition that an "agreement" is not an "agreement" unless it is legally enforceable. The applicant's written submissions accept that whether the terms of an agreement between two governments are legally binding depends on the circumstances (South Australia v Commonwealth at 154 per Windeyer J).
48 The passages in South Australia v Commonwealth referred to by the parties draw attention to the need to distinguish the classes of agreement that may be judicially enforced and of the need to ensure that "the necessary distinction can be maintained between, on the one hand, the exercise of the jurisdiction reposed in the Court and, on the other hand, an extension of the Court's true function into a domain that does not belong to it, namely, the consideration of undertakings and obligations depending entirely on political sanctions" (per Dixon CJ at 141). As Windeyer J said, at 154:
An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances may put the matter outside the realm of contract law. Undertakings that are political in character - using the word "political" as referring to promises and undertakings of governments, either to their own citizens or to other states or governments - are therefore often not enforceable by processes of law.
49 As paragraphs (a) to (e) of the definition of "RFA" indicate, an RFA is concerned with matters of environmental and economic policy. While such matters could be the subject of legally enforceable obligations, they could also be (and perhaps would more readily be) matters of a political nature, often involving compromise between competing policy considerations and interests, not intended to be the subject of adjudication by the courts.
50 Some further insight into the nature of an RFA as referred to in the RFA Act can be gleaned from the NFPS, of which "certain aspects" are the concern of the RFA Act (s 3(b)). As Mortimer J observed in Leadbeater's Possum Inc, at [122], once the relevant content and purpose of the NFPS is understood, it informs an understanding of the structure and content of RFAs themselves, the RFA Act, and the exemptions in s 6(4) of the RFA Act and s 38(1) of the EPBC Act in particular.
51 Relevantly, the foreword to the NFPS states:
The Commonwealth, State and Territory Governments attach the utmost importance to sustainable management of Australia's forests. In order to achieve the full range of benefits that forests can provide now and in the future, the Governments have come together to develop a strategy for the ecologically sustainable management of these forests. The strategy and its policy initiatives will lay the foundation for forest management in Australia into the next century.
This Statement has been jointly developed by the Commonwealth, States and Territories through the Australian Forestry Council and the Australian and New Zealand Environment and Conservation Council in consultation with other relevant government agencies, the Australian Local Government Association, unions, industry representatives, conservation organisations and the general community. The Statement was signed by all participating Governments, with the exception of Tasmania, at the Council of Australian Governments' meeting, held in Perth in December 1992. Tasmania became a signatory to the Statement on 12 April 1995. The Statement has been developed concurrently with the development of the Ecologically Sustainable Development National Strategy and the National Greenhouse Response Strategy.
In endorsing this Statement, we commit our respective Governments to implement, as a matter of priority, the policies in it for the benefit of present and future generations of Australians. We acknowledge that implementation of policies requiring funding will be subject to budgetary priorities and constraints in individual jurisdictions. (emphasis added)
52 The NFPS was also cognisant of the likely need to accommodate future change in forest management and the need for adaptive processes:
Managing Australia's forests in a sustainable manner calls for policies, by both governments and landowners, that can be adapted to accommodate change. Pressures for change may result from new information about forest ecology and community attitudes, new management strategies and techniques (such as those that incorporate land care and integrated catchment management principles), and new commercial and non-commercial opportunities for forest use. These pressures may affect the forests themselves.
53 Consideration of the NFPS assists with understanding that an RFA, as referred to in the RFA Act, is likely to contain provisions which "essentially depend on matters of principle or policy into which obviously financial and economic considerations must enter" (South Australia v Commonwealth, per Dixon CJ at 147) and that the legislative scheme contemplates the revision and development of codes of practice and management plans as knowledge changes.
54 Thus, read in the context of the whole of the definition of "RFA", the words "agreement" and "in force" are equivocal in nature; they do not necessarily suggest that the terms of the agreement, including as regards the CAR Reserve System and ESFM, must be legally enforceable.
55 Secondly, while the words "in force" are used in ss 7 and 8 of the RFA Act in a context suggesting legal enforceability, these provisions are confined in their scope and operation. Section 7 deals with termination of an RFA by the Commonwealth and provides that this is of no effect unless it is done in accordance with the termination provisions of the RFA. Section 8 provides that the Commonwealth is liable to pay compensation "in accordance with the compensation provisions of an RFA". It may be accepted that these provisions proceed on the basis that some of the terms of an RFA, namely those concerned with termination and compensation, are legally enforceable.
56 As has already been outlined above, the Tasmanian RFA is in three parts; the first two are expressed not to be intended to create legally binding obligations, the third part, however, provides for such an intention. It is the provisions within Part 3 to which ss 7 and 8 give effect. It is perfectly possible to give the phrase "in force" the same meaning in s 4 as in ss 7 and 8. The fact that every clause of an agreement may not be legally binding, or create legal obligations between the parties, does not mean that the agreement itself is not "in force". As the respondents submit, it is apparent when considering the use of the phrase "in force" throughout the RFA Act, that it is used variously, for example, to fix a reference to an agreement operative at a particular point in time (as in the definition of RFA forestry operations (s 4) and as used in ss 9(1)(b) and (2)), to constrain Commonwealth termination of an RFA by amending the RFA and then relying on those amendments (s 7), and as a counterpoint to an agreement that "may subsequently have expired or been terminated" (s 8(2)). The words "in force" are in this context neutral as to whether or not particular terms of the agreement are legally enforceable.
57 Thirdly, the legislative history, context and purpose point against the applicant's contention, its submissions to the contrary notwithstanding.
58 The applicant contends that the legislative history supports the proposition that an RFA, as defined, is legally binding. That proposition may be accepted in relation to the obligations contained in Part 3 of the Tasmanian RFA, but it does not advance the applicant's primary contention. The objects of the RFA Act articulate the purpose of the Act being, inter alia, "to give effect to certain obligations of the Commonwealth under Regional Forest Agreements" (emphasis added) (s 3(a)). The RFA Act then gives the requisite legislative support to those obligations in ss 7 and 8, as well as imposing further obligations not dealt with in RFAs (ss 9-11).
59 The applicant submits that its preferred construction is supported by the Explanatory Memorandum and the Second Reading Speech relating to the RFA Bill. However, the Explanatory Memorandum makes clear that the purpose of the Bill was that as ultimately enacted in s 3 of the Act, "The RFA Bill binds executive governments to certain Commonwealth obligations under Regional Forest Agreements [including the RFA between the Commonwealth and the Tasmanian State Government] and to implementation of the Forest and Wood Products Action Agenda through the Forest and Wood Products Council" (p 1, emphasis added). At paragraph 4, the Explanatory Memorandum states:
RFAs have now been agreed in 10 regions. The RFA Bill seeks to underpin the agreements by:
• precluding the application of controls under the Export Control Act 1982, and other Commonwealth laws which have the effect of prohibiting or restricting exports of wood from a region where an RFA is in force (supporting the current Export Control Regulations which have removed export controls where RFAs are in place);
• preventing application of Commonwealth environmental and heritage legislation as they relate to the effect of forestry operations where an RFA, based on comprehensive regional assessments, is in place (reflecting provisions already in the EPBC Act);
• ensuring that the Commonwealth is bound to the termination and compensation provisions in RFAs and cannot effectively change these provisions in the future without legislative action; and
• binding future executive governments to consider advice from the Forest and Wood Products Council on the implementation of the Forest and Wood Products Action.
60 Paragraph 7 reinforces that the purpose of the RFA Bill is to enshrine certain obligations of the Commonwealth: "The benefits of the RFAs flow from stability in forest management, access and use over 20 years. The RFA Bill reinforces those benefits by ensuring that Commonwealth governments will not materially alter the conditions negotiated in RFAs. It is open to State Governments to introduce similar legislation in their Parliaments. To date, only the Tasmanian Parliament has passed similar legislation" (emphasis added). The purpose of the RFA Act was never to be the sole source, or even the primary source, of measures to protect Tasmania's native forests, nor threatened species.
61 As STT submits, there is a broader suite of protective measures in force in Tasmania. That suite was originally described in the Tasmanian RFA as the suite as described in the Tasmanian-Commonwealth Regional Forest Agreement Background Report Part E: Assessment of Ecologically Sustainable Forest Management Systems and Processes: Independent Expert Advisory Group - Preliminary Report published by the Tasmanian Public Land Use Commission November 1996. In the 2017 variation, consistent with the periodic reviews required by the Tasmanian RFA, that suite of protective measures is that outlined in "Tasmania's Forest Management System: An Overview (2017)" as amended from time to time. Relevantly, that document explains, (p 6):
Section 38 of the EPBC Act provides that forestry operations conducted in relation to land covered by the RFA (and not prohibited by the RFA) are exempt from the assessment and approval requirements of Part 3 of the Act (except for any forestry operations in World Heritage properties or Ramsar wetland sites). This exemption is in recognition of Tasmania's Comprehensive Regional Assessment (undertaken as part of the development of the RFA), the implementation of a CAR Reserve System, and implementation of ecologically sustainable forest management. Hence, the RFA provides a framework for MNES [matters of National Environmental Significance] to be protected and managed through Tasmania's forest management system, including its reserves, and avoids duplication of environmental regulation.
62 The Overview refers (p 8) to the key Tasmanian legislation which underpins the forest management system, including: the Forest Practices Act 1985 (Tas) and Forest Practices Regulations 2007 (Tas), which provide for sustainable forest management associated with the growing and harvesting of forest on public and private land; the Forest Management Act 2013 (Tas), which prescribes the Permanent Timber Production Zone Land and the Forestry Corporation (now the STT) as the land manager; the Nature Conservation Act 2002 (Tas) and the Threatened Species Protection Act 1995 (Tas), which provide protection for listed flora, fauna and threatened vegetation communities (the latter of which includes the Swift Parrot in Sch 3); and the National Parks and Reserves Management Act 2002 (Tas), which prescribes management requirements for the majority of the Tasmanian reserve system.
63 The Overview states (p 8):
Tasmania's forest management system has, at its core, three primary elements:
• a policy for maintaining a permanent native forest estate;
• a CAR reserve system that securely protects forest conservation values; and
• a system for managing forests outside reserves in a manner that contributes to sustainable environmental, social and economic outcomes.
64 It goes on to explain (p 8):
The implementation of the Tasmanian RFA and the process of adaptive management and continuous improvement built into Tasmania's forest management system has delivered world-class sustainable forest management. As processes and knowledge evolve, the structure and delivery mechanisms within Tasmania's forest management system have also evolved, and will continue to do so to meet community expectations. As a framework agreement, the Tasmanian RFA is able to accommodate this continuous improvement and adaptive management, without requiring continual updates to the Agreement itself.
65 When construing a federal statute, s 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object. The High Court has emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 262, Kiefel CJ, Nettle and Gordon JJ said, at [14]:
Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too if its ordinary meaning is not consistent with the statutory purpose, the meaning must be rejected.
66 In the present circumstances, it is pertinent to recall Gleeson CJ's caution in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, at [5]:
That general rule of interpretation [a purposive construction], however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
67 It is from the context of the protective measures implemented by the States generally, and in this case by Tasmania in particular, together with the provisions of the EPBC Act, that one discerns the Commonwealth's legislative purpose in relation to environmental protection and the protection of the national estates as enacted in the RFA Act.
68 The applicant's submission that lack of legal enforceability (of the terms of an agreement relating to the CAR Reserve System and ESFM) would defeat the statutory purpose of the RFA Act cannot be accepted. The objects of the RFA Act, as expressed in s 3, are quite specific. Section 3(a) refers to giving effect to certain obligations of the Commonwealth under Regional Forest Agreements. Section 3(b), as originally enacted, referred to giving effect to certain aspects of the Forest and Wood Products Action Agenda and the National Forest Policy Statement. Section 3(c) refers to providing for the existence of the Forest and Wood Products Council. These objects do not provide any clear support for the applicant's first contention.
69 Accepting that environmental protection forms one of the purposes of the RFA Act (see, eg, paragraphs (a)(i), (b), (c) and (d) of the definition of "RFA"), a requirement that the agreement provide for a CAR Reserve System and ESFM (albeit not in legally enforceable terms) tends to further that statutory purpose, at least to some extent. As the judgment of Gleeson CJ in Carr explains, legislation rarely pursues a single purpose at all costs. In the present case, it is relevant to note that the RFA Act refers to (among other things) "environmental values", "indigenous heritage values", "economic values of forested areas and forest industries", "social values" and "principles of ecologically sustainable development": see paragraph (a) of the definition of "RFA". Thus, the Act deals with a number of different and potentially competing policy considerations. This tends to support the point that the RFA Act does not pursue a particular purpose (such as environmental protection) at all costs.
70 In our view, only limited assistance can be obtained from the NFPS (referred to in s 3 of the RFA Act) and the Forest and Wood Products Action Agenda (referred to in s 3 of the RFA Act as originally enacted). It is true that parts of the NFPS were expressed in mandatory rather than discretionary terms. For example, it was stated that parts of the public native forest estate "will" continue to be set aside in dedicated nature conservation reserve systems, and that the reserve system "will" safeguard endangered and vulnerable species and communities (p 7). However, these statements were not addressed to the present issue of statutory construction. Further, it is important to note that both the NFPS and the agenda referred to a number of different and potentially competing policy considerations; the documents were not solely concerned with environmental protection.
71 While it is true that s 6 of the RFA Act provides that certain Commonwealth Acts do not apply in relation to "RFA wood" and "RFA forestry operations", this does not provide any clear indication that the legal enforceability of terms was required before an agreement could qualify as an "RFA". It may be accepted that the exemptions contained in s 6 are significant. In particular, s 6(4) provides that Pt 3 of the EPBC Act does not apply to an RFA forestry operation that is undertaken in accordance with an RFA. (It is noted that the subsection does not apply to some RFA forestry operations: see s 42 of the EPBC Act). This provision is capable of operation whether or not the terms of an RFA are legally enforceable. It does not provide any clear indication that the Commonwealth Parliament intended to require that the terms of an RFA be legally enforceable. It is important to note that the Commonwealth has the power to terminate an RFA in certain circumstances, in which case the exemptions in s 6 would cease to apply.
72 Fourthly, the RFA Act was enacted in a context where agreements between the Commonwealth and several States (including Tasmania), each titled "Regional Forest Agreement", were already in place. It is safe to assume that, in enacting the RFA Act, the Commonwealth Parliament proceeded on the basis that each of the existing Regional Forest Agreements (including the Commonwealth-Tasmania agreement as it then stood) constituted an "RFA" as defined. The Explanatory Memorandum to the RFA Bill is replete with references to the existing Regional Forest Agreements. For example, it referred on p 1 to the "ten Regional Forest Agreements (RFAs) [that] have been concluded between the Commonwealth and the Victorian, Tasmanian, New South Wales and Western Australian State Governments". The existing agreement between the Commonwealth and Tasmania made clear that the terms of Part 2 (which included the terms relating to the CAR Reserve System and ESFM) were not legally binding: see cl 18. In this context, it is highly unlikely that the Commonwealth Parliament, in enacting the RFA Act, intended to require that, before an agreement could constitute an "RFA", the terms relating to the CAR Reserve System and ESFM needed to be legally enforceable. This would have meant that the existing Commonwealth-Tasmania agreement did not constitute an "RFA".
73 Fifthly, and relatedly, the definition of "RFA forestry operations" in s 4 of the RFA Act as enacted proceeded on the basis that the existing Commonwealth-Tasmania agreement constituted an "RFA". That definition relevantly picked up the definition of "forestry operations" in "an RFA as in force on 1 September 2001 between the Commonwealth and Tasmania". This was a reference to the agreement between the Commonwealth and Tasmania made on 8 November 1997, as varied on 19 July 2001. Thus, the RFA Act, in the definition of "RFA forestry operations", proceeded on the assumption that the Commonwealth-Tasmania agreement constituted an "RFA". This is a further contextual consideration that points against the applicant's first contention.
74 As noted above, the issue before the Court turns on the construction of the RFA Act rather than of the Tasmanian RFA. Accordingly, the fact that the Tasmanian RFA was varied in 2007 and 2017 does not detract from the contextual consideration referred to in the preceding paragraph.