Requirement to 'take account of' the precautionary principle
149 The appellant contends that the primary judge was wrong to construe s 391 of the EPBC Act as not imposing a mandatory relevant consideration. The appellant further contends that the Minister failed to 'take account of' the precautionary principle in that the approval decision was made without an approved offset strategy and offset management plan to address significant residual impacts on the Black Cockatoos, Western Ringtail Possum and Tuart and Banksia Woodlands and without considering that the approval had the potential to result in the destruction of all species or ecological communities intended to be the subject of the offsets.
150 The appellant's argument appears to be that while the delegate considered the impacts of the proposed action on each 'matter protected' and concluded that the impacts were significant and that there would also be significant residual impacts for which offsets were necessary, the delegate had not considered if there were 'threats of serious or irreversible environmental damage' with respect to each 'matter protected' and, thereby failed to 'take account of' the precautionary principle. The failure to take account of the precautionary principle is to be inferred, so the appellant submits, from the absence of any mention in the delegate's reasons of any consideration of threats of serious or irreversible environmental damage in a context in which it was clear that that consideration was required having regard to the nature and extent of the identified significant impacts.
151 Section 391(1) provides that the Minister must take account of the precautionary principle in making a decision listed in the table in s 391(3), to the extent he or she can do so consistently with the other provisions of the EPCB Act. A decision whether or not to approve the taking of an action under s 133 is listed in the table.
152 Section 391(2) defines the precautionary principle in familiar terms.
The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
153 As is observed in the joint reasons, the precautionary principle is also introduced into a decision whether or not to approve the taking of an action under s 133 through s 136(2)(a). Section 136(2)(a) provides that in considering the matters referred to in s 136(1) (the matters the Minister must consider in deciding whether or not to approve the taking of an action and what conditions to attach to an approval), the Minister must 'take into account' the principles of ecologically sustainable development. Section 3A provides that those principles include that 'if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation'.
154 The manner in which it may or may not be consistent with s 136(2)(a) and s 136(5) for the Minister to 'take account of' the precautionary principle under s 391(1) in making a decision under s 133 need not be explored. No party in the appeal suggested that there was any issue of significance arising from the dual sources of the requirement for the Minister to 'take account of' (s 391(1)) or 'take into account' (s 136(2)(a)) the precautionary principle as expressed separately in s 391(1) or within the principles of ecologically sustainable development in ss 136(2)(a) and 3A. Thus, the real issue is how the Minister is to 'take account of' or 'take into account' the precautionary principle in deciding whether or not to approve the taking of action under s 133 and any conditions attached to an approval.
155 The primary judge approached the construction from the perspective that s 391 should be given 'contextual meaning', that is, 'the text of the statute should be considered whilst at the same time having regard to its context and purpose': J at [52]. He then considered the relevant context and purpose of the EPBC Act applicable to the contextual meaning of s 391. The primary judge noted and had regard to the following features of the Act.
(1) The decision-making scheme under the Act as described in the primary judge's reasons for decision on the application for interlocutory injunction: J at [53]; IJ at [7]-[20].
(2) Approval of a controlled action under s 133(1) must specify the action the subject of the approval and any conditions: s 133(2). 'Speaking broadly the conditions that may be attached are those that are necessary or convenient to protect, repair or mitigate environmental damage: s 134': J at [53].
(3) Section 136 'refers to matters that 'the Minister must consider' and describes matters that the Minister 'must take into account' in considering those matters. It then refers to matters that 'the Minister may consider' in deciding whether to approve. Finally, it provides that 'the Minister must not consider any matters that the Minister is not required or permitted by the Division to consider': J at [53]-[54].
(4) The provisions following s 136 specify matters that 'the Minister must not act inconsistently with' in deciding whether to approve the taking of action: ss 137-140: J at [55].
(5) It is significant that s 391 is not referred to in Pt 9 of the Act, 'nor is there any reference to s 391 in the provisions that identify the matters that the Minister must or may consider, those which the Minister must not consider and the matters that the Minister must 'take into account' in deciding whether to approve.' Instead, s 391 is in Chapter 6 of the Act which is concerned with 'administration and enforcement of compliance with its provisions': J at [56].
(6) Section 391 uses a different form of wording to the provisions that specify the matters the Minister must or may consider. It uses 'take account of', not 'consider' or 'take into account'. 'Further, s 391 describes a 'principle' not a 'matter'. It is concerned with a way of reasoning not with a particular topic or subject matter that might be considered in evaluating whether to approve.': J at [57]
(7) Additionally, the list of decisions to which s 391 applies is extensive and not confined to decisions whether or not to approve the taking of action. 'It includes decisions about whether to make various types of plans which will have legislative significance and about whether an action is a 'controlled action' (and therefore subject to the provisions of the Act requiring approval). Decisions of that kind require assessment that affect the scope of the regulation effected by the Act. It is understandable that the Act would ensure that decisions of that kind are guided by a particular view as to the degree of scientific certainty that is required to support the decision': J at [57].
156 The primary judge concluded that '(a) the language used in s 391 when compared to the provisions about approval; (b) the particular context of s 391 within the overall scheme of the Act; and (c) the range of the decisions to which s 391 is applied, all support the position [that s 391 should not be seen as providing for a matter which must be considered as if it were a factor or thing that may count for or against approval or inform whether there should be particular conditions and, if so, in what terms. Rather, the precautionary principle is a way of describing how to approach risk and uncertainty in undertaking the evaluative process].' 'It is not a principle of general application in the sense that it is not taken account of unless there is scientific uncertainty': J at [50], [58].
157 Further, the primary judge considered that 'the authorities as to the manner in which the precautionary principle is to be applied in environmental decision making support the conclusion that s 391 is imposing an obligation as to how evidence of serious environmental damage must be treated where there is a lack of scientific certainty and that it only applies where it has been determined that there is a lack of scientific certainty in respect of a particular matter': J at [58]. He then set out relevant passages from the regularly cited decision of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 at [128]-[141]: J at [59].
158 In these passages, Preston CJ explains that the precautionary principle is triggered by the satisfaction of two conditions precedent or thresholds: (1) a threat of serious or irreversible environmental damage; and (2) scientific uncertainty as to the environmental damage. The conditions or thresholds are cumulative. Once satisfied 'a precautionary measure' may be taken to avert the anticipated threat of environmental damage, but it should be proportionate. That is, the precautionary principle operates where the conditions or thresholds are met in relation to a third element; namely, 'a precautionary measure'. Assessing the seriousness or irreversibility of environmental damage involves consideration of many factors. Determining the existence of a threat of the requisite kind, at the stage of assessing the first condition, does not involve any evaluation of scientific uncertainty. If there is no threat of the requisite kind there is no basis for the principle to operate. The second condition is that there be 'a lack of full scientific certainty' as to the nature and scope of the threat of environmental damage. Again, the precautionary principle has no operation in the absence of a lack of scientific certainty about a threat of the requisite kind.
159 The primary judge observed that ultimately Preston CJ explained the precautionary principle as a principle of evidence that shifts the burden of proof: J at [60].
60 … Preston CJ described the manner of its operation in the following way (at [150]-[152]):
If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.
The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.
The function of the precautionary principle is, therefore, to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists …
160 The primary judge went on to observe that 'the precautionary principle does not operate as a factor that will affect the outcome … it applies where there is a basis to conclude that there is a threat of serious or irreversible environmental damage and scientific uncertainty as to the nature and scope of the threat. In order for it to operate there must be material to be evaluated. The principle does not provide a basis for a decision in and of itself.': J at [61].
161 Relying on the manner in which the Full Court approached the construction of a provision of the Great Barrier Reef Marine Park Act 1975 (Cth) calling for application of the precautionary principle in Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310 at [120]-[121], the primary judge reasoned that 'the question of whether there were threats of serious or irreversible environmental damage was largely a matter of evaluative fact … So, the question whether there was material that gives rise to the [threat of serious or irreversible environmental damage] was a within jurisdiction adjudicative task entrusted to [the decision-maker]. It was a matter to which the Minister was required to have regard by reason of the terms of the provisions concerned with the matters which the Minister must consider or to which the Minister must have regard. Section 391(1) was not the source of that requirement.' Therefore, 'the question whether there was material that gave rise to a need to apply the precautionary principle was a matter for the Minister's delegate. Further, there could be no relevant error unless the delegate failed to bear in mind (perhaps actually deploy to the extent there was no inconsistency with another provision in the Act) the precautionary principle if there was a risk of the requisite kind about which there was scientific uncertainty.': J at [64].
162 The primary judge also considered the manner in which Moshinsky J approached the interpretation of s 391 in its application to s 75 of the EPBC Act in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 at [33]. There, Moshinsky J considered that the meaning of the requirement in s 391(1) to take account of is interchangeable with a requirement that a decision-maker "consider" a matter. That requires the Minister to "consider", at least, whether the first condition precedent is satisfied. The decision-maker must bring an active intellectual process to that matter.
163 The primary judge first referred to Bob Brown Foundation when considering the extent to which, if the preconditions for application of the precautionary principle were satisfied, the Minister was required 'to deploy the principle (save where such a course would be inconsistent with another provision in the Act) because [the terminology of s 391(1) 'must take account of'] may require regard to a matter as a fundamental element in the decision making process'. He concluded that it was 'not necessary to reach a precise conclusion as to this aspect'. However, the primary judge noted that 'take account of' may be interchangeable with 'consider' as Moshinsky J had said in Bob Brown Foundation at [33]. The primary judge also noted that Tracey J had expressed the view in Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330; (2009) 165 LGERA 203 at [36] that: 'So long as the Minister, as he did in the present case, takes account of the precautionary principle, it is a matter for him to determine what weight is to be accorded to the principle having regard to the wide range of other considerations which he is also required to take into account': J at [62].
164 The primary judge later referred to Bob Brown Foundation as an example of a decision in which it had been found that the Minister had failed to 'take account of' the precautionary principle. By reference to Bob Brown Foundation at [19]-[33], [39] and [48], the primary judge observed that Moshinsky J 'found as a matter of fact (by a process of inference) that there was a failure to consider the precautionary principle' in that case.
165 The primary judge also observed that there is a tension between the approach of Moshinsky J in Bob Brown Foundation and that of the Full Court in Queensland v Humane Society. The primary judge was of the view that consistently with the Full Court's reasoning in Queensland v Humane Society it is not the precautionary principle that is the source of the obligation to consider if there are threats of the requisite kind. The tension arises because the reasons of Moshinsky J in Bob Brown Foundation suggest that s 391(1) contains a separate and independent obligation 'to consider, at least, whether the first conditions precedent … is satisfied': Bob Brown Foundation at [33], [48].
166 The appellant contends that the approach of Moshinsky J in Bob Brown Foundation was correct and the primary judge was in error for not adopting that approach. The appellant submits that the difference in the two constructions is as follows:
(a) Moshinsky J held that s 391 necessitates (by implication) that the decision-maker consider the material before them insofar as it might engage with the precautionary principle, and depending on the quality of the material, might need to engage directly with that material and make express findings on the topic.
(b) The primary judge held s 391 operates only where the decision-maker has in fact (already) made a finding that there is a threat of serious or irreversible environmental damage. Even then, s 391 is relevant only if there is some measure in contemplation to prevent degradation of the environment, and only at that point, s 391 bites to direct the decision-maker to take account of a principle that the lack of full scientific certainty should not be used as a reason for postponing that measure.
167 Bob Brown Foundation concerned a decision of a delegate to the effect that the proposed action in that case was not a controlled action provided it was undertaken in the manner set out in the decision. The delegate's decision was made under ss 75 and 77A of the EPBC Act. The proposed action involved geotechnical works and investigations for the purpose of informing the design and assessment of a proposed tailings storage facility for a mine operation on the west coast of Tasmania. The delegate found that there would not be significant impacts on the Tasmanian Masked Owl notwithstanding that consultants engaged by the proponent had recommended that certain measures be adopted in relation to the Tasmanian Masked Owl. The delegate identified that there were threats to the Tasmanian Masked Owl including habitat clearing and fragmentation from agriculture, forestry, and residential development, loss of nesting habitat through tree dieback, collision mortality and secondary poisoning. The delegate also noted the species is elusive, and that further surveying efforts would be needed to understand the species' usage of the site. The delegate also indicated that in making the decision account was taken of "limited information available regarding the species' usage of the site". Therefore, materials before the delegate and the delegate's reasons suggested that both conditions precedent of the precautionary principle may have been satisfied in the circumstance of that case. In that context, Moshinsky J said at [48]:
In my view, it is apparent from the Statement of Reasons that the Delegate did not comply with the obligation in s 391(1) to take account of the precautionary principle. As set out above, to comply with this obligation, it is necessary for the Minister (or, in this case, the Delegate) to consider, at least, whether the first condition precedent (namely, if there are threats of serious or irreversible environmental damage) is satisfied. This requires the decision maker to bring an active intellectual process to this matter. Having reviewed the section of the Statement of Reasons dealing with the Tasmanian Masked Owl (being [177]-[196]), and the Statement of Reasons as a whole, I am satisfied that the Delegate failed to do this. The Delegate did not expressly refer to the first condition precedent in the section of the reasons dealing with the Tasmanian Masked Owl. Nor did the Delegate make a finding in terms that correspond to the first condition precedent. While the Delegate, at [184], identified a number of "threats" to the Tasmanian Masked Owl (by reference to the Approved Conservation Advice), the Delegate did not go on to discuss, or make a finding as to, whether those threats, or the threats posed by the proposed action, were serious or irreversible. In the absence of any discussion or finding about this matter, I infer that the Delegate failed to consider it.
(Emphasis original.)
168 It follows that on the facts of Bob Brown Foundation the delegate was required by operation of Pt 7 of the EPBC Act and s 75 to consider if the proposed action would have a significant impact on a protected matter (the Tasmanian Masked Owl) and that, in turn, may have triggered the operation of the precautionary principle if impacts were considered to result in serious or irreversible environmental damage and there was a lack of scientific certainty about the nature of that threat. The delegate's reasons revealed the existence of threats and an evident lack of information (scientific certainty) about the extent of those threats. It is implicit that Moshinsky J considered, on the findings of the delegate in that case, that the preconditions for engagement of the precautionary principle were satisfied and, therefore, he inferred from the absence of any specific consideration of the seriousness or irreversibility of the threats to the Tasmanian Masked Owl that the delegate had not applied the precautionary principle in the process of reasoning that resulted in the conclusion that the impact on the owl would not be significant. Therefore, I do not consider that the observations of Moshinsky J at [33] and [48] of Bob Brown Foundation on the operation of s 391(1) express an interpretation of that provision that is necessarily of general application. Those observations are to be read in the context of the facts of that case and the nature of the delegate's failure to 'take account of' the precautionary principle inferred from those facts.
169 In my view, largely for the reasons given by the primary judge, his construction of s 391(1) and its application to a decision whether to approve an action under s 133 is correct. As noted earlier, there is a nuance to be added to those reasons given that, through s 136(2)(a), the precautionary principle is something that must be 'taken into account' in consideration of the matters that must be considered under s 136(1). That nuance affects the primary judge's reasons insofar as he relied on s 136 as a 'closed list' of matters that were required or permitted to be considered in a decision under s 133 and that s 391(1) sits in Chapter 6 and is expressed such that account is to be taken of the principle 'to the extent [it can be done so] consistently with the other provisions of this Act.' That reasoning is, with respect, sound and remains so regarding the interpretation and application of s 391(1) to a decision under s 133. Insofar as it is not applicable to s 136(2)(a), it does not detract from the other reasons the primary judge gave for considering that the 'precautionary principle' is a 'principle' rather than a 'matter' nor that the structure of Pt 9 and s 136, in particular, identify the 'matters' which must or may be considered in making a decision under s 133 to approve and the conditions to attach under s 134.
170 Section 136(2)(a) identifies a 'principle' that must be 'taken into account' 'in considering' the matters referred to in s 136(1) that must be considered in deciding whether or not to approve the taking of an action (under s 133). Section 391(1) identifies a 'principle' that must be 'taken account of' in making a decision under s 133. The primary judge's observations that the precautionary principle operates as a way of making decisions and as a principle of evidence apply equally to s 391(1) and s 136(2)(a). Further, the necessity to consider threats of environmental damage arises from a consideration of the matters that the Minister is required or permitted (must or may) consider in making a decision in accordance with the 'closed list' of s 136.
171 The question of whether there are threats of the requisite kind for which there is a lack of full scientific certainty is within the evaluative jurisdiction of the Minister in the exercise of decision-making power under ss 130, 133 and 134. Put another way, s 391(1) (and s 136(2)(a)) are to be understood as providing that where applicable the Minister must 'take account of' (or 'take into account') the precautionary principle. The applicability of the precautionary principle, in turn, depends on the findings (or conclusions) the Minister makes (or reaches) in the performance of the evaluative task. Those findings (or conclusions) may or may not reveal a failure to 'take account of' (or 'take into account') the precautionary principle in the Minister's process of reasoning. A bare statement to the effect that 'the precautionary principle has been taken into account' may or may not, depending on the circumstances, be of assistance to a court on review of a decision in which it is asserted that the Minister has failed to 'take account of' or 'take into account' the principle.
172 The primary judge was correct to observe that the precautionary principle is, of its nature, an evidentiary principle. It concerns a way of approaching environmental decision-making that treats environmental damage as certain where there is scientific uncertainty as to that damage. Consequently, a measure that is capable of preventing or mitigating that damage should be implemented before any environmental damage actually takes place. Therefore, what is 'taken account of' or 'taken into account' by the decision-maker where the principle applies is the assumed certitude of serious or irreversible environmental damage as a factor that is to inform the nature and extent of any precautionary measure intended to avoid or mitigate that damage.
173 The precautionary principle does not necessarily operate as a means of refusing a proposal that will lead to environmental damage. It permits the taking of preventative measures without having to wait until the reality of the seriousness of the threats becomes fully known. As Preston CJ explained in Telstra at [154], [156].
154 It should be recognised that the shifting of the evidentiary burden of proof operates in relation to only one input of the decision-making process - the question of environmental damage. If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. This assumed factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation (such as s 79C(1) of the Environmental Planning and Assessment Act). There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed: "Factoring biodiversity conservation into decision-making processes: The role of the precautionary principle" at 108.
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156 The precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known: Pfizer Animal Health SA v Council of the European Union [2002] ECR II-3305 at [139]; Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri (at [111]). This is the concept of preventative anticipation: T O'Riordan and J Cameron, "The History and Contemporary Significance of the Precautionary Principle" in T O'Riordan and J Cameron (eds), Interpreting the Precautionary Principle (1994) London, Earthscan Publications at 17; and Principles of International Environmental Law, at 269.
174 As is identified in the joint reasons at [85], there is a degree of inelegance in the literal application of the text of the precautionary principle as expressed in s 391(2) (and s 3A) to a decision to approve the taking of action. Approval of an action that is a controlled action, by definition, will result in environmental damage (significant impacts on a matter protected). Nonetheless, having regard to its nature as a 'principle' and an approach to decision-making, there is no real difficulty applying the principle or concept to a decision whether or not to approve an action under s 133. A decision not to approve may be made as a consequence of the application of the precautionary principle where the threat of serious or irreversible environmental damage is sufficiently great having regard to the lack of scientific certainty about that threat. A decision not to approve in those circumstances may be characterised as a measure to prevent degradation of the environment. Where a decision is made to approve an action, conditions attached to an approval may also be measures intended to avoid, mitigate or offset environmental damage that will flow from the approval of the action. Therefore, in making a decision to approve an action, the precautionary principle may be invoked in decisions about the nature and extent of conditions attached to the approval.
175 It follows that in order to succeed on the application below, it was necessary for the appellant to demonstrate that the delegate made findings or reached conclusions that expressly or by inference or implication triggered application of the precautionary principle and there was a failure to 'take account of' that principle with respect to a preventative measure of some kind. Relevantly, there was a failure to take account of the precautionary principle in deciding to approve the taking of the action as a whole or a failure in deciding to attach or not to attach a particular condition to the approval that would have been a preventative measure to address a threat about which there was a lack of full scientific certainty.
176 The manner in which the appellant asserted that the delegate had failed to take account of the precautionary principle were particularised in paras [47]-[50] of the amended originating application. These grounds are incorporated by reference into ground 3 of the grounds of appeal which plead, in effect, that the threat of serious or irreversible environmental damage as regards the significant impacts on the Black Cockatoos, Western Ringtail Possums and Banksia and Tuart Woodlands were mandatory relevant considerations of the delegate's decision. The threat was alleged to be the potential destruction of all species intended to be the subject of offsets before there was an approved offset strategy or offset management plan in accordance with the offset conditions. The failure to take account of or consider the threat of serious or irreversible environmental damage is alleged to arise by way of inference from the delegate's reasons.
177 As to these matters, the primary judge considered the delegate's reasons and concluded that he was not able to infer that the delegate had overlooked the possible application of the precautionary principle in this case: J at [73]-[76].
73 As to the delegate's decision, the first aspect to note is that the decision made was to agree with the department's recommendation to approve the proposed action. The basis for that recommendation was set out in detail in the recommendation report. Reflecting that course, the reasons identify the respects in which the delegate agreed with the matters in the recommendation report and where the delegate took a different view. In a number of significant respects, the recommendation report identified environmental impacts. Much of the report dealt with assessing the significance of those impacts and compensatory offsets. It identified species and communities that were unlikely to be impacted by the proposed action. The report addressed the factors that were required by s 136 to be taken into account. It addressed the conditions and identified respects in which the proposed conditions, in the view of the department, did not fully manage or resolve the residual impacts.
74 The recommendation report referred to the precautionary principle in the context of considering the impact of the proposed action on the western ringtail possum, but not otherwise. The report stated (para 80) that:
The Department considers it appropriate to apply the precautionary principle and is of the view that an unknown proportion of the 49-72 WRP displaced by clearing will suffer mortality as a result of the action. The recovery plan and conservation advice for WRP identifies that WRP display naivety towards introduced predators, compete with the Common Brushtail Possum for hollows and habitat, and that intra-species territoriality for home ranges occurs (Attachments F2 and F15). The Department also notes that the recovery plan indicates high mortality experienced by translocation sites, and low rehabilitation success rates experienced by unregulated wildlife volunteers (Attachment F2).
75 As has been noted, the reasons engaged with the views expressed in the recommendation report. When it came to significant environmental impacts, the reasons were as follows:
(1) as to banksia woodlands, the identified threats were described and the significant impacts described in the recommendation report were accepted (paras 43 47);
(2) as to tuart woodlands and forests, there was a similar approach was adopted accepted the threats and impacts described in the recommendation report (paras 57 63);
(3) as to black cockatoos, the reasons identified the relevant recovery plan and other conservation advice for the cockatoos. Again the threats and impacts described in the recommendation report were accepted (paras 74 80);
(4) as to the western ringtail possum, the reasons identified the relevant recovery plan and other conservation advice (paras 100 101). They then expressed the view that 'threats to the [possums] are complex, interactive and often population specific' (para 102). The primary threats were identified (para 102). They observed that the area in which the proposed action was to be undertaken was within a key management zone set out in the recovery plan for the western ringtail possum (para 103). They set out the long-term vision of the recovery plan (para 104). They noted the limited success of population translocation as a means to preserve the western ringtail possum (para 105). They addressed in some detail the impacts in terms that had regard to the precautionary principle (paras 112, 114, quoted below);
(5) as to the black-stripe minnow, the reasons noted the threats and impacts described in the recommendation report (paras 134, 136);
(6) as to other species, the reasons expressed agreement with the department that the proposed clearing was not likely to result in a significant impact to other species that were identified as being likely to be affected because they were not present within the proposed action are (para 147); and
(7) in dealing with 'Other Relevant Matters', the reasons began as follows:
In deciding whether or not to approve the taking of the proposed action, I took into account (amongst other matters) the principles of ecologically sustainable development as required under section 391 of the [Act]. In particular, as discussed above, I accepted the Department's recommendation that the principle applied to the Western Ringtail Possum.
76 Having regard to the form of the reasons and the manner in which they identified and engaged with serious threats I am unable to infer (as I was invited to by FOGC) that the delegate overlooked the possible application of the precautionary principle to aspects of the reasons that concerned impacts on species other than the western ringtail possum. Rather, the reasons as a whole indicate a considered view by the delegate as to where the precautionary principle might be appropriately applied and the application of the principle in that case where there was identified uncertainty as to the likely impact. In all other respects, the delegate approached the matter on the basis that the impacts had been established. No issue arose as to the certainty with which that conclusion may be reached, particularly no issue as to whether by reason of a lack of full scientific certainty the refusal of the approval should be 'postponed' (to use the language of the principle as stated in s 391(2)). Therefore, there was no occasion for any lack of scientific certainty to be used as a reason for allowing the approval in accordance with the precautionary principle.
178 No error has been demonstrated in that reasoning of the primary judge with which, with respect, I agree. I would add that, after invitation, the appellant was unable to identify any evidence or material before the delegate involving a lack of scientific certainty (other than with respect to the Western Ringtail Possum) that could have brought into operation the precautionary principle with respect to any of the matters protected. Therefore, there were no findings or conclusions of the delegate from which it could be inferred that she failed to 'take account of' or 'take into account' the precautionary principle. Further, the offset conditions require Main Roads to submit to the Minister's satisfaction an offset strategy that meets the requirements of the Offsets Policy. Therefore, preventative measures in the form of offsets intended to counterbalance the residual impacts of the approved action have been attached to the approval. The residual environmental damage that will be caused by the approved action will be offset by preventing environmental damage elsewhere. That suggests that, if and to the extent there is any lack of scientific certainty about the threat of environmental damage, the delegate has taken into account that threat in her decision to approve and attach the offset conditions (in the terms upon which they were attached).
179 Thus, irrespective of whether or not the construction of s 391(1) for which the appellant contends is correct, the appellant has failed to demonstrate, as a matter of fact, that the delegate overlooked the precautionary principle as alleged.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.