Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority

947. 74 CLR 492 Texts Cited: Climate Change 2021: The Physical Science Basis Contribution of Working Group 1 to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change Paris Agreement, opened for signature 22 April 2016 [2016] ATS 24 (entered into force 4 November 2016) Category: Principal judgment Parties: Bushfire Survivors for Climate Action Incorporated (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: Mr R Beasley SC, with Mr D Hume (Applicant) Mr S Free SC, with Mr O Jones (Respondent)

Solicitors: Environmental Defenders Office (Applicant) Environment Protection Authority (Respondent) File Number(s): 2020/106678 Publication restriction: Nil

The dispute in a nutshell

1. A climate action group, Bushfire Survivors for Climate Action (BSCA), seeks an order in the nature of mandamus to compel an environmental regulatory agency, the Environment Protection Authority (EPA), to perform a statutory duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change. The duty on the EPA is imposed by s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act). In its terms, the provision requires the EPA to "develop environmental quality objectives, guidelines and policies to ensure environment protection".
2. BSCA's primary argument is that the purpose of environment protection includes protection of the environment from significant threats. BSCA argues one of the most significant threats, BSCA referred to it as "existential" and "grave", is climate change. The environmental quality objectives, guidelines and policies to ensure environment protection that the EPA is required by s 9(1)(a) to develop should therefore include instruments of this kind to protect the environment in New South Wales from this threat of climate change. BSCA contends for a specific content of the duty. The duty requires developing not only instruments to ensure protection of the environment from climate change as a general proposition but more particularly to do so in ways that are "consistent with limiting global temperature rise to 1.5 degrees Celsius above pre-industrial levels."
3. BSCA contends that the EPA has failed to develop such instruments to protect the environment in New South Wales from climate change. Whatever instruments the EPA has developed to ensure environment protection do not in fact ensure, and were not developed for the purpose of ensuring, the protection of the environment in New South Wales from climate change. In this respect, the duty imposed on the EPA by s 9(1)(a) of POEA Act remains unperformed.
4. BSCA seeks an order of the Court compelling the EPA to perform its duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment in New South Wales from climate change.
5. BSCA's primary argument raises three issues: What is the nature and content of the duty imposed on the EPA by s 9(1)(a) of POEA Act? Is the EPA in breach of the duty under s 9(1)(a)? If so, what order should be made to remedy the breach of duty?
6. The EPA defends its conduct and contests BSCA's claim. As to the first issue of the nature and content of the duty, the EPA contends that the duty under s 9(1)(a) is to develop environmental quality objectives, guidelines and policies to ensure environment protection generally and not any particular aspect of environment protection, such as the protection of the environment from climate change. As a consequence, the EPA is not under a duty to develop instruments of the kind described in s 9(1)(a) to ensure the protection of the environment from climate change.
7. As to the second issue of the breach of duty, the EPA contends that if the duty in s 9(1)(a) does require the EPA to develop instruments to ensure the protection of the environment from climate change, it has done so. The EPA has developed numerous instruments to ensure environment protection in many ways, some of which incidentally regulate greenhouse gas emissions, such as methane from landfill. More directly, the EPA has developed a regulatory strategy, which identifies climate change as one of the regulatory challenges for the EPA and outlines the role the EPA foreshadows it will play in the solution to the challenge. The EPA contends that the development of these instruments is sufficient to perform its duty under s 9(1)(a).

The Court's findings in a nutshell

1. Dealing with BSCA's primary argument, I find that the duty under s 9(1)(a) of the POEA Act to develop environmental quality objectives, guidelines and policies to ensure environment protection, in the current circumstances, includes a duty to develop instruments of the kind described to ensure the protection of the environment in New South Wales from climate change, although this does not demand that such instruments contain the level of specificity contended for by BSCA, such as regulating sources of greenhouse gas emissions in a way consistent with limiting global temperature rise to 1.5°C above pre-industrial levels. The EPA has a discretion as to the specific content of the instruments it develops under s 9(1)(a) to ensure the protection of the environment from climate change.
2. I find that the EPA has not fulfilled this duty under s 9(1)(a) to develop instruments of the kind described to ensure the protection of the environment from climate change. None of the documents on which the EPA sought to rely is an instrument for the purposes of s 9(1)(a) to ensure the protection of the environment from climate change.
3. An order in the nature of mandamus should therefore be made to compel the EPA to perform its duty. The terms of the order should reflect the content of the duty that I have found, so that the EPA should be ordered to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.
4. This resolution of BSCA's primary argument makes it unnecessary to decide BSCA's secondary arguments, which were put in the alternative to the primary argument. Nevertheless, aspects of the proper construction of s 9(1)(a) raised by BSCA's secondary arguments and the EPA's defence to these arguments are addressed in my determination of the primary argument.

The duty under s 9(1)(a) of the POEA Act

1. The nature and scope of the duty imposed by s 9(1)(a) of the POEA Act, and any discretion to perform the duty, are to be construed by reference to the text of s 9(1)(a), considered in light of its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], [41], [64]. Where the Court is undertaking judicial review of administrative conduct, this task of statutory construction is "to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less": Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [56] and see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [55].
2. In the present case, the administrative function the subject of judicial review is a duty not a power and the focus of the review is on the performance or non-performance of the duty. In question are the action that the duty requires to be taken and the legal effect that is given to that action by the statute. An administrative decision or action only has such force and effect as is given to it by the statute pursuant to which it was made or taken: Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [46]. Thus, action taken in accordance with a statutory provision imposing a duty will have the legal effect given to that action by the statute. But action taken otherwise than in accordance with the statutory provision imposing the duty will not have legal effect or consequence under the statute.
3. I will begin the task of statutory interpretation by construing the terms by which s 9(1)(a) imposes the duty: first, the duty "to develop"; second, "objectives, guidelines and policies"; third, with the character of "environmental quality"; and fourth, for the purpose "to ensure environment protection". I will next examine the nature and scope of the discretion to perform this duty, and the controls on the exercise of the discretion. I will finally examine the legal application of the meaning of the statutory provision imposing the duty and conferring the discretion to perform the duty, as interpreted, to the facts of this case to determine whether the duty requires the EPA to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.

The duty to develop

1. The POEA Act has three objects: "(a) to constitute the Environment Protection Authority, (b) to provide integrated administration for environment protection, (c) to require the Authority to perform particular tasks in relation to the quality of the environment, environmental audit and reports on the state of the environment" (s 4).
2. The particular tasks the EPA is required to perform, referred to in the third object, relate to three matters: the quality of the environment, environmental audit and reports on the state of the environment. The first task relating to environmental quality is required by s 9(1); the second task relating to environmental audit is required by s 9(2); and the third task relating to reports on the state of the environment is required by s 10. This case is concerned with the EPA's performance of the first task relating to environmental quality, required by s 9(1).
3. Section 9(1) requires the EPA to perform two tasks in relation to the quality of the environment: first, to develop certain instruments to ensure environment protection and, secondly, to monitor the state of the environment for the purpose of assessing trends and the achievement of the instruments it has developed. Section 9(1) provides: "The Authority is required to - (a) develop environmental quality objectives, guidelines and policies to ensure environment protection, and (b) monitor the state of the environment for the purpose of assessing trends and the achievement of environmental quality objectives, guidelines, policies and standards."
4. The subsection imposes a duty on the EPA - the EPA "is required" - to perform the particular tasks in paragraphs (a) and (b). The task in paragraph (a) is to "develop" objectives, guidelines and policies of a particular character, "environmental quality", and for a particular purpose, "to ensure environment protection". To "develop" such objectives, guidelines and policies is "to bring into being or activity; generate" (Macquarie Dictionary) these instruments.
5. The object of the action to develop is the particular objective, guideline or policy that is developed. The subject of the action to develop is the EPA who develops the objective, guideline or policy. The EPA cannot delegate the duty to develop objectives, guidelines and policies to any other person or body. This means that objectives, guidelines or policies developed by a person or body other than the EPA cannot be objectives, guidelines or policies for the purposes of s 9(1)(a) of the POEA Act.

The instruments of objectives, guidelines and policies

1. The instruments that the EPA is required to develop under paragraph (a) are threefold: objectives, guidelines and policies. I refer to these collectively as instruments as they need to be in writing. This flows not only from the nature of the class of "objectives, guidelines and policies" and the nature of each individual member of the class, but also from the power of the EPA under s 8(f) of the POEA Act to invite and consider public submissions when it develops objectives, guidelines and policies under s 9, as public notice and comment needs to be in relation to written instruments.
2. The instruments that the EPA is required to monitor under s 9(1)(b) include the three instruments that the EPA is required to develop under s 9(1)(a) together with another type of instrument, "standards". Standards will also be in writing. The EPA is not required by s 9(1)(a) to develop standards, but one of the objectives of the EPA is to reduce the risks to human health and prevent the degradation of the environment by means such as "adopting minimum environmental standards prescribed by complementary Commonwealth and State legislation and advising the Government to prescribe more stringent standards where appropriate" (s 6(1)(b) of the POEA Act. Standards can be adopted by this process.
3. The nature and content of each of the instruments referred to in paragraphs (a) and (b) are not defined in the POEA Act. They will bear their ordinary meaning. An objective is "an end towards which efforts are directed; something aimed at" (Macquarie Dictionary). A guideline is "a statement which defines policy or the area in which a policy is operative" (Macquarie Dictionary). A policy is "1. a definite course of action adopted as expedient or from other considerations. 2. a course or line of action pursued by a government, ruler, political party, or the like" (Macquarie Dictionary). A content requirement common to all three instruments is the need for specification of some outcome, standard or course of action to achieve the instrument.
4. This content requirement is confirmed by the requirement of paragraph (b) for the EPA to monitor the achievement of the objectives, guidelines and policies developed under paragraph (a). The EPA can only monitor what it can measure, whether quantitatively or qualitatively. Outcomes, standards and courses of action are able to be measured and monitored, so as to enable an assessment of whether the objectives, guidelines, policies and standards are being achieved.

The character of environment quality

1. The objectives, guidelines and policies developed under s 9(1)(a) must be of a certain character, that of relating to "environmental quality". As noted, s 9(1) is the source of the requirement on the EPA to perform the particular tasks stated in the subsection "in relation to the quality of the environment", being the third object of the POEA Act stated in s 4. Although the expressions "environmental quality" or "the quality of the environment" are not defined in the POEA Act, the word "environment" is defined: "environment means components of the earth, including - (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c)." (s 3(1)).
2. Environmental quality or the quality of the environment refers, therefore, to the quality of these components of the earth, including interacting natural ecosystems that include the components referred to in paragraphs (a) to (c).
3. The adjectival phrase "environmental quality" in s 9(1)(a) and (b) qualifies each of the nouns that follow the phrase and not merely the first noun in the collocation. Hence, each of the objectives, guidelines and policies in paragraph (a) and each of the objectives, guidelines, policies and standards in paragraph (b) need to be in relation to "environmental quality" or "the quality of the environment".

The purpose to ensure environment protection

1. The duty under s 9(1)(a) is to develop objectives, guidelines and policies not only of a particular character, being of "environmental quality", but also for a particular purpose, "to ensure environment protection". This phrase, "to ensure environment protection", is normative, that is to say, it establishes an evaluative standard or norm for the objectives, guidelines and policies. There are two components: the action "to ensure" and the object of the action "environment protection".
2. The verb "ensure" bears its ordinary meaning of "2. to make sure or certain to come, occur, etc 3. to make secure or safe, as from harm" (Macquarie Dictionary). BSCA referred to Muir J's observation that the word "ensure" "has its normal everyday meaning of 'make certain' or 'make sure'": Mount Isa Mines Ltd v Peachey [1998] QCA 400 at [15]. BSCA relied on Edelman J's statement that "a duty to 'ensure' compliance is a duty to strict liability": ASIC v Cassimatis (No 8) (2016) 336 ALR 209; [2016] FCA 1023 at [529]. The EPA contested that the duty can be classified as one of strict liability, citing Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd (2011) 282 ALR 167; [2011] NSWCA 204 at [121].
3. The object of the action to ensure is "environment protection". "Environment protection" is defined in s 3(1) of the POEA Act to include "anything which furthers the objectives of the Authority as set out in section 6." Two points should be noted about this definition. First, it is an inclusive not an exhaustive definition. The ordinary meaning of the words "environment protection" is extended by the definition to include anything which furthers the objectives of the EPA, but the meaning of the words is not limited to doing those things. The ordinary meaning of "environment protection" is simply the protection of the environment. As I have earlier noted, "environment" is defined widely in s 3(1) of the POEA Act to include all the abiotic and biotic components of the earth. Importantly, for this case, the abiotic components include the "air" and "any layer of the atmosphere". "Environment protection" is necessarily therefore a wide concept, referring to any action to protect the environment by such means as conserving the environment, preventing and remedying harm to the environment, and restoring the quality of the environment. Secondly, this extended definition refers to environment protection as being anything that "furthers" the objectives of the EPA, rather than being the objectives of the EPA as such.

The discretion in performing the duty

1. I have explained in the previous sections the nature and scope of the duty imposed by s 9(1)(a) of the PEOA Act. The performance of the duty involves discretion. I now will explore the nature and scope of this discretion. The discretion to perform the duty is limited by the terms in which the duty is imposed. There is no discretion as to whether or why the duty is to be performed. There is no discretion as to whether any environmental quality objectives, guidelines and policies to ensure environment protection need to be developed because there is a duty on the EPA to do so, and there is no discretion as to why environmental quality objectives, guidelines and policies need to be developed because the duty requires such instruments to be developed to ensure environment protection.
2. There is a limited discretion as to when, what and how the duty is to be performed. When do the circumstances demand that the EPA must develop particular environmental quality objectives, guidelines and policies to ensure environment protection? What type of instrument - an environmental quality objective, guideline or policy - should be developed? What should be the subject matter of environment protection in respect of which such an instrument should be developed? How should the selected instrument address the selected subject matter?
3. The answers to such questions are within the discretion of the body on whom the duty is imposed, the EPA. As the EPA submitted, "the number, content and nature of the particular objectives, guidelines and policies to be developed was intended to be a matter for the EPA to determine in the exercise of its discretion" (Respondent's Written Submissions at [16]).

The controls on the exercise of the discretion

1. There are controls on the discretion afforded to the EPA in its performance of the duty. The primary controls on the discretion derive from the terms in which the duty is imposed, as I have earlier explained. These operate to ensure that any action taken in purported exercise of the duty will only have legal effect for the purposes of the statutory provision if the action is in accordance with the statutory provision imposing the duty. Thus, a document that does not answer the statutory description of being "objectives, guidelines and policies", with the character of "environmental quality" and for the purpose "to ensure environment protection" will have no legal effect or consequence under s 9(1)(a).
2. There is one further control that operates to prevent an abuse of the discretion to perform the duty under s 9(1)(a), which relates to administrative competence. Instruments of the nature, character and purpose required by s 9(1)(a) must be developed by the EPA, a specialist statutory body constituted with objectives and functions to protect the environment. I have earlier explained the objectives of the EPA. The EPA has the functions conferred or imposed by the POEA Act, the environment protection legislation and other legislation (s 7(1) POEA Act). The EPA has the general responsibility for the functions conferred by s 7(2), including "(a) ensuring that best practicable measures are taken for environment protection in accordance with the environment protection legislation and other legislation". The powers of the EPA include the general powers conferred by s 8 of the POEA Act, such as to formulate and create plans for environment protection (s 8(a)). The EPA has the duties relating to environmental quality imposed by s 9(1), the duty for environmental audit imposed by s 9(2) and the duty to report on the state of the environment imposed by s 10 of the POEA Act. The EPA has the power to advise public authorities on performance targets relating to environment protection (s 11) and to direct authorities to do anything within the power of the public authority which will contribute to environment protection (s 12).
3. These objectives and functions of the EPA vest it with expert administrative competence in environment protection. Section 9(1) seeks to employ this expert administrative competence by imposing on the EPA the duty to develop environmental quality objectives, guidelines and policies to ensure environment protection. This requirement for expert administrative competence is a positive control on the discretion to perform the duty in s 9(1)(a). The discernible legislative intention is that the discretion to perform the duty is less likely to be abused if it is exercised by a public authority who has expertise in environment protection.

Environment protection from climate change

1. BSCA contends that the duty under s 9(1)(a) to develop environmental quality objectives, guidelines and policies "to ensure environment protection" includes a duty to develop such instruments to ensure environment protection from climate change. BSCA refers to the evidence of Professor Penny Sackett, and the reports of the Intergovernmental Panel on Climate Change (IPCC), including the recently released Climate Change 2021: The Physical Science Basis. Contribution of Working Group 1 to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change. Professor Sackett described climate change as "the greatest threat to the environment and people of New South Wales". BSCA submits that "environment protection" necessarily includes protection of the environment in New South Wales from climate change. This follows not only from the ordinary meaning of "environment protection" but also from the extended meaning of "environment protection" in s 3(1) of the POEA Act. Actions to protect the environment in New South Wales from climate change meet the description of being anything which furthers the objectives of the EPA set out in s 6(1).
2. Such actions further the first objective "to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development". The environment is defined to include the "air" and "any layer of the atmosphere", both of which are adversely affected by the cause of climate change of the anthropogenic emissions of greenhouse gases. Professor Sackett's evidence, and the IPCC Reports and scientific articles to which she refers, establish that the emission of greenhouse gases is a grave threat to the atmosphere and climate systems. The atmosphere and climate systems interact with, support, and impact on other components of the earth and its natural ecosystems, including land, air and water; organic or inorganic matter and any living organism; and human-made or modified structures and areas. Protection of the environment against the threat of greenhouse gas emissions must entail mitigation of the sources of greenhouse gas emissions; adaptation to climate change is insufficient as it is not directed to protection of the atmosphere. Protection of the environment from climate change implements the principles of ecologically sustainable development, including the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and the polluter pays principle, thereby enabling the achievement and maintenance of ecologically sustainable development: Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 at [488], [498].

The specificity of the duty to ensure environment protection from climate change

1. BSCA argues that the environmental quality objectives, guidelines and policies that need to be developed must not only ensure environment protection from climate change generally, but more particularly such instruments must: "(a) address the topics of greenhouse gas emissions and climate change; (b) address the environmental impacts of greenhouse gas emissions; (c) regulate sources of direct and indirect greenhouse gas emissions consistent with limiting global temperature rise to 1.5°C above pre-industrial levels; (d) are adapted to reducing direct and indirect sources of greenhouse gas emissions consistent with limiting global temperature rise to 1.5°C above preindustrial levels; (e) are calculated to keep greenhouse gas levels at a level which is appropriate having regard to the best available science; (f) ensure environment protection; (g) are adapted to ensuring environment protection." (paragraph 37 of the Points of Claim).
2. The foundation for BSCA's argument that the environmental quality objectives, guidelines and policies to ensure environment protection, which the EPA is required to develop, must contain these specific matters lies in the evidence of Professor Sackett, and the IPCC reports and scientific articles to which she referred.
3. BSCA relies firstly on the evidence of the causes of climate change to establish the object of the actions that the environmental quality objectives, guidelines and policies require to be taken, in particular, to reduce the amount of greenhouse gas emissions by sources. Professor Sackett in her first report of 5 March 2021 summarised the causes of climate change in the executive summary as follows: "7) Greenhouse gases (GHGs) trap some of the radiation from the Sun warming the surface of the Earth. Human activities are upsetting a long-standing balance in these gases, adding energy via global warming that fuels changes in the global climate. 8) The primary greenhouse gases driving current anthropogenic (human-caused) climate change are carbon dioxide (CO2), methane (CH4), and nitrous oxide (N2O). Most of the carbon dioxide that is not absorbed quickly by ocean and land 'sinks' will remain in the atmosphere for thousands of years. This means that the full effect of past and present emissions is yet to be felt. 9) Current levels of CO2, CH4 and N2O in the atmosphere are 146%, 257% and 122%, respectively, of their pre-industrial levels around 1850. Increased concentration of CO2 in the atmosphere caused by human activity is the most important contributor to global warming and climate change. Carbon dioxide levels are higher now than any other time our species has inhabited the Earth. At present, 85-90% of the additional CO2 emitted per year is from the burning of fossil fuels: coal, gas, and oil; all of these major sources of emissions continue to rise. 10) Nearly all of the warming experienced in past 160 years is due to human activities. Since 1970, the average global surface temperature has been changing at a rate 200times faster than anytime in the last 7,000 years. 11) Reducing net anthropogenic GHG emissions to zero and maintaining them at that level is the only way that humans can stabilize the climate. The primary determinant of future climate change, is the trajectory of world emissions, especially the path between now and 2030. Restrictions imposed in response to COVID-19 will have negligible impacts in terms of climate change. " (see for a fuller explanation section 3.1 and 3.2).

Breach of duty

1. BSCA contends that the EPA has failed to perform the duty under s 9(1)(a) of the POEA Act. Although the EPA has prepared hundreds of documents that might be said to relate to environment protection, BSCA contends that none of these documents meet the statutory description of being an instrument required to be developed by s 9(1)(a) to ensure environment protection from the environmental impacts of greenhouse gas emissions and climate change. The EPA contests this, submitting that a number of the documents do address the topics of greenhouse gas emissions and climate change, whether directly or indirectly.
2. Both BSCA and the EPA adduced evidence regarding the documents that might potentially be considered to be instruments of the kind described by s 9(1)(a) and engaged persons, being Professor Sackett for BSCA and Mr Fowler for the EPA, to assess whether, in their opinion, the documents did in fact meet the statutory description of instruments required to be developed by s 9(1)(a). Whilst the tender of the documents was helpful, the opinion evidence of the persons assessing the documents was less helpful. The question of whether the documents meet the statutory description of the instruments required to be developed by s 9(1)(a) is not one on which the persons could give evidence. This is a question for the Court to decide.
3. Nevertheless, the persons' assessments of the documents did have the benefit of reducing the potential documents from a set of 426 documents, which were initially produced by the EPA, to 14 documents, on Professor Sackett's assessment, but then with refinement by the EPA in closing submissions, to seven documents that referred or were relevant in some way to greenhouse gas emissions or climate change. Five of the seven documents were prepared by the EPA: Changing Behaviour Together, NSW Waste Less, Recycle More Education Strategy 2016-21; Environmental Guidelines Solid Waste Landfills (2nd ed, 2018); NSW Energy from Waste Policy Statement; Methane fact sheet; and the EPA Regulatory Strategy 2021-24. Two of the seven documents were prepared by persons other than the EPA: NSW Climate Change Policy Framework for NSW, prepared by the Office of Environment and Heritage (2016) and Net Zero Plan Stage 1: 2020-2030, prepared by the Department of Planning, Industry and Environment (2020).
4. The EPA also referred to the direction given by the Minister for Energy and Environment under s 13(2)(b) of the POEA Act that the EPA include in the State of the Environment reports published between 2020 and 2030, including the next report due in late 2021, an assessment of the NSW Net Zero Plan Stage 1: 2020-2030 setting out: "Statewide context 1. a description of the status of the policies set out in the Plan; 2. the State's projected annual emissions reductions on 2005 levels by 2030 expressed in percentage terms; The Plan's impacts 3. the emissions reductions expected by 2030 on 2005 levels as a result of the totality of the Plan and other NSW Government policies; 4. the extent to which the Plan is setting the State up to achieve its aspiration to have net zero carbon emissions by 2050; 5. an analysis of the economic impacts of the Plan; 6. an analysis of the other environmental impacts of the Plan."

Orders to be made

1. Although the EPA argued that it had developed instruments in ostensible performance of its duty, I have found that those instruments did not meet the statutory description of the instruments required by s 9(1)(a) of the POEA Act to ensure environment protection from climate change. In law, therefore, the duty on the EPA under s 9(1)(a) to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change remains unperformed. In these circumstances, a mandamus should issue to compel the EPA to discharge its duty: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504; [1947] HCA 21.
2. The EPA did contest the appropriateness of issuing a mandamus, but this contest was limited to the terms in which BSCA had sought for the mandamus to issue. BSCA had claimed that the Court should order the EPA to develop the instruments required by s 9(1)(a) so as to address all of the specific matters claimed in [37] of the Points of Claim. The EPA disputed that the duty imposed by s 9(1)(a) required any instrument developed to have that specific content. The EPA submitted that the Court would not, therefore, order the EPA to develop instruments under s 9(1)(a) with that specific content.
3. The EPA submitted that where a decision maker is afforded a discretion as to how to discharge a duty, the Court may not order that the discretion be discharged in any particular way. The EPA cited the statement of Latham CJ in Cuming Campbell Investments Pty Ltd v Collector of Imposts (1938) 60 CLR 741 at 749; [1938] HCA 53: "When it is the duty of a public officer to exercise a discretion, the court may order the officer to perform his duty by exercising his discretion, but it will not control the exercise of the discretion by directing that it be exercised in a particular manner not expressly required by law. 'A mandamus goes to set a party in motion to do a thing, but not to prescribe the way in which it shall be done.'"
4. BSCA responded that mandamus issues to "compel the performance of a public duty when there has been a refusal or failure to perform the duty": Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 515; [1989] HCA 41. Section 9(1)(a) of the POEA Act does impose a duty on the EPA, which the EPA has failed to perform. Mandamus can issue to compel performance of the duty. BSCA accepted that the terms in which the mandamus should issue will need to be consistent with the Court's findings as to the content of the duty. A mandamus to perform the duty in the terms found by the Court is orthodox and does not constrain the discretion of the EPA as to how to discharge the duty.

Amendments 22 September 2021 - Amendment to description of Figure 1 in [127]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021