Greentree v Minister for the Environment and Heritage

Federal Court of Australia (Full Court)|1971-02-02|Before: Sackville J, Edmonds JJ, Kiefel J

REASONS FOR JUDGMENT KIEFEL J: 1 On 14 October 2004 Sackville J made orders restraining the first and second appellants from carrying out activities, including farming activities, in connexion with a portion of the declared wetlands known as the Ramsar Gwydir Wetlands located within a property known as 'Windella' and requiring them to undertake certain remedial works in the nature of tree planting in the wetlands. His Honour ordered that the first appellant pay to the Commonwealth a pecuniary penalty of $150,000 and the second appellant a penalty of $300,000. These orders followed his Honour's reasons published on 11 June 2004 [(2004) 138 FCR 198; [2004] FCA 741] and 14 October 2004 ([2004] FCA 1317). The appellants appeal from those orders. 2 The Commonwealth contended before his Honour that the appellants had contravened s 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)('the EPBC Act'). That subsection prohibits the taking of action which has, will have or is likely to have a significant impact on a declared Ramsar Wetland. A 'declared Ramsar Wetland' is defined by s 17(1) to refer to wetlands designated by the Commonwealth under Article 2 of the Ramsar Convention (Convention on Wetlands of International Importance especially as Waterfowl Habitat (signed at Ramsar, Iran on 2 February 1971)). 3 The Ramsar Gwydir Wetlands comprise four areas totalling 823 hectares and are located in northwest New South Wales, west of Moree. The claims of contravention of the EPBC Act concern an area in the wetlands of about 100 hectares referred to as the 'Windella Ramsar site'. The site was located within the boundaries of the property 'Windella' which is about 2000 hectares in size. The appellants were alleged to have damaged the site by clearing and ploughing it sometime between 27 June 2002 and 30 July 2003. 4 The property Windella was at the relevant time farmed by a partnership known as Greentree Farming. Since 1 July 2002 the partners included the second appellant. The company's shareholders were the first appellant and another company of which the first appellant was the sole shareholder. It is not necessary to detail the other respondents to the proceedings below, his Honour having held that they had not contravened the Act and there being no appeal from those determinations. 5 The principal issue on the appeal concerns the question whether the Ramsar Gwydir Wetlands and therefore the Windella Ramsar site were designated within the meaning of s 17(1) of the EPBC Act, given the extent of mapping and description provided for that purpose. Two further issues are raised: whether the actions of the appellants fell within s 16 of the EPBC Act, having regard to the level of their impact; and whether the penalties imposed are excessive. Another issue dealt with by his Honour, as to whether a defence of specific authorisation under State law referred to in s 16(2) was available to the appellants, was not pursued on the appeal.

the ramsar Convention 6 The Ramsar Convention was signed by Australia on 8 May 1974 and entered into force on 21 December 1975. The Convention provisions of relevance for the purposes of s 17(1) are those which were in force immediately before the date of commencement of the EPBC Act: see s 528. The recital and articles 1 to 3 inclusive of the Convention are as follows [see Australian Treaty Series 1975, No 48]: 'THE CONTRACTING PARTIES, RECOGNIZING the interdependence of man and his environment; CONSIDERING the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl; BEING CONVINCED that wetlands constitute a resource of great economic, cultural, scientific and recreational value, the loss of which would be irreparable; DESIRING to stem the progressive encroachment on and loss of wetlands now and in the future; RECOGNIZING that waterfowl in their seasonal migrations may transcend frontiers and so should be regarded as an international resource; BEING CONFIDENT that the conservation of wetlands and their flora and fauna can be ensured by combining far-sighted national policies with co-ordinated international action; HAVE AGREED as follows: ARTICLE 1 1. For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. 2. For the purpose of this Convention waterfowl are birds ecologically dependent on wetlands. ARTICLE 2 1. Each Contracting Party shall designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance, hereinafter referred to as "the List" which is maintained by the bureau established under Article 8. The boundaries of each wetland shall be precisely described and also delimited on a map and they may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands, especially where these have importance as waterfowl habitat. 2. Wetlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology. In the first instance wetlands of international importance to waterfowl at any season should be included. 3. The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated. 4. Each Contracting Party shall designate at least one wetland to be included in the List when signing this Convention or when depositing its instrument of ratification or accession, as provided in Article 9. 5. Any Contracting Party shall have the right to add to the List further wetlands situated within its territory, to extend the boundaries of those wetlands already included by it in the List, or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List and shall, at the earliest possible time, inform the organization or government responsible for the continuing bureau duties specified in Article 8 of the any such changes. 6. Each Contracting Party shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl, both when designating entries for the List and when exercising its right to change entries in the List relating to wetlands within its territory. ARTICLE 3 1. The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory. 2. Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the continuing bureau duties specified in Article 8.' 7 Article 6 of the Convention provides for a Conference of the Contracting Parties to review and promote implementation of the Convention. The Bureau established under Article 8 is to convene these meetings. Additionally, it has continuing duties. Article 8(2) provides that they include the following: '… (b) to maintain the List of Wetlands of International Importance and to be informed by the Contracting Parties of any additions, extensions, deletions or restrictions concerning wetlands included in the List provided in accordance with paragraph 5 of Article 2; (c) to be informed by the Contracting Parties of any changes in the ecological character of wetlands included in the List provided in accordance with paragraph 2 of Article 3; (d) to forward notification of any alterations to the List, or changes in character of wetlands included therein, to all Contracting Parties and to arrange for these matters to be discussed at the next Conference. …' 8 His Honour detailed a number of conferences held between the Contracting Parties following the entering into of the Ramsar Convention. They encouraged the provision of information about and mapping of wetlands. At the 4th Meeting of the Conference of Contracting Parties (27 June-4 July 1990) the parties recommended that any Contracting Party that had not provided a precise description and maps of the boundaries of the wetlands designated for inclusion in the List should do so as soon as possible. The meeting also recommended improvements to the information sheet which was to be completed for each Ramsar wetland ('Ramsar Information Sheet' or 'RIS'). Contracting Parties were urged to complete as much of the form as possible. At the 6th Meeting (19-27 March 1996) it was determined that Contracting Parties be urged to give priority to providing the Bureau, by 31 December 1997, with maps and completed information sheets for all sites designated and to revise the data at least every six years. At the same meeting it was decided that the boundaries of each additional site designated subsequently be precisely described and delimited on a map. A General Objective was agreed upon regarding the regular updating of information. It included the Parties ensuring that the maps and descriptions of Ramsar sites at the time of designation were complete. On 29 June 1997 the Scientific and Technical Review Panel and the Bureau amended the RIS. An 'ideal' Ramsar site was said to be one clearly showing the boundaries of the Ramsar site, scale, latitude, longitude and compass bearing together with other information. A further revision of the RIS was approved at the 8th Meeting (18-26 November 2002). At the 7th Meeting (10-18 May 1999) the Conference expressed deep concern that there remain a number of Ramsar sites for which an official description has not been provided or for which a suitable map had not been submitted. Australia was not named as one of the Contracting Parties that had defaulted.

the EPBC Act 9 As Sackville J pointed out, the EPBC Act came into force on 16 July 2000, some thirteen months after the purported designation of the Ramsar Gwydir Wetlands. Its objects include (s 3(1)): '(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and (b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and (c) to promote the conservation of biodiversity; and (d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and (e) to assist in the co-operative implementation of Australia's international environmental responsibilities…' 10 In order to meet these objects it was said that the EPBC Act (s 3(2)): '(a) recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and (b) strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements; and … (e) enhances Australia's capacity to ensure the conservation of its biodiversity by including provisions to: (i) protect native species…; …; (iv) identify processes that threaten all levels of biodiversity and implement plans to address these processes; and (f) includes provisions to enhance the protection, conservation and presentation of world heritage properties and the conservation and wise use of Ramsar wetlands of international importance…' 11 Sub-division B of Division 1 of Part 3 of the EPBC Act deals with 'Wetlands of international importance'. Section 16 provides: '(1) A person must not take an action that: (a) has or will have a significant impact on the ecological character of a declared Ramsar wetland; or (b) is likely to have a significant impact on the ecological character of a declared Ramsar wetland. Civil penalty: (a) for an individual - 5,000 penalty units; (b) for a body corporate - 50,000 penalty units.' 12 Subsection (3) of the section gives 'ecological character' the same meaning as in the Convention. This term is not defined in the Convention. However at the 7th Meeting of the Conference of Contracting Parties (10-18 May 1999) the following definitions of 'ecological character' and 'changes in ecological character' were adopted: 'Ecological character is the sum of the biological, physical, and chemical components of the wetland ecosystem, and their interactions, which maintain the wetland and its products, functions, and attributes. Change in ecological character is the impairment or imbalance in any biological, physical, or chemical components of the wetland ecosystem, or in their interactions, which maintain the wetland and its products, functions and attributes.' 13 The definition of a penalty unit in s 4AA(1) of the Crimes Act 1914 (Cth)means that the maximum civil penalty for a breach of s 16 is $550,000 for an individual and $5,550,000 for a body corporate. 14 Section 17(1) of the EPBC Act provides the answer to the question posed in its heading 'What is a declared Ramsar Wetland?' as follows: 'A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not: (a) excluded by the Commonwealth from the boundaries of a wetland in the List under that Article; or (b) deleted by the Commonwealth from the List under that Article.' 15 Section 17(2) also makes provision for the Minister declaring a wetland to be a declared Ramsar Wetland, but this is not a process which has been undertaken with respect to the Ramsar Gwydir Wetlands. 16 Section 326(1) of the EPBC Act provides that the Commonwealth 'may designate for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention', a wetland containing an area owned or occupied by others in the Ramsar list so long as the Minister is satisfied that the Commonwealth has used its best endeavours to secure agreement on the proposed designation and the management of the wetlands. Notification in the Gazette is required in the event that the Commonwealth, designates a wetland for inclusion in the List; extends the boundaries of a wetland in the List; restricts or deletes the boundaries of a wetland included in the List: s 327(1). The notice 'must specify the area included in, or excluded or deleted from, the List as a result of the event': subs (2). A failure to comply with the section does not however affect the status of an area as a declared Ramsar wetland: subs (3).

THE DESIGNATION PROCESS FOR THE WINDELLA RAMSAR SITE 17 On 2 June 1999 the Commonwealth Minister for the Environment and Heritage forwarded to the Ramsar Convention Bureau a request that the Ramsar Gwydir Wetlands be added to the list along with some other sites. The letter enclosed a completed RIS of the type formulated by the Bureau and copies of three maps which had been produced, following the execution of a Memorandum of Understanding between the Commonwealth, the State of New South Wales, the proprietors of the four affected properties and others. 18 The facts leading to the provision of the maps and information which were forwarded by the Minister were not in dispute. The RIS gave geographical co-ordinates for each of the four sites. They permitted the ascertainment of the approximate centre of the site. It contained information relating to ecological features and noteworthy flora, together with the required justification of the criteria selected to support the nomination. The maps prepared by the Nation Parks and Wildlife Service of New South Wales ('NPWS') were drawn using four co-ordinates for the boundaries. The fourth had been estimated. The information was stored electronically. Other files of data were available to overlay onto the map. 19 His Honour found that the maps: · show the boundaries of the Windella Ramsar site in the sense that the quadrilateral-shaped area of the site is drawn on the maps in accordance with an identified scale; · do not show latitude and longitude readings and do not provide coordinates for the four corners of the site; · show the Australian Map Grid coordinates on the axes; · show some water bodies in the vicinity of the Windella Ramsar site; · do not show the boundaries of Windella itself. 20 His Honour had earlier referred to the maps also showing some basic topographical features such as roads as well as watercourses. 21 The electronic file of the information 'drawn' by the NPWS officer, Mr Bowen, was forwarded to Environment Australia, as the Commonwealth Department was called. It was then stored in its database which was accessible by the public through its website. A witness, Ms McDonald, was able to show how the co-ordinates of latitude and longitude for the four corners of the Windella Ramsar site could be ascertained from the database. 22 The Ramsar Gwydir wetlands were included on the List maintained by the Bureau and remain on it.

THE DESIGNATION ISSUE 23 Before his Honour it was submitted that the Windella Ramsar site had not been designated in accordance with Article 2 of the Ramsar Convention because no precise description had been given of the boundaries of it nor was it delimited on a map. It followed that the site was not a 'declared Ramsar Wetland' as defined in s 17(1) of the EPBC Act. 24 His Honour proceeded to construe the EPBC Act against the background of the Ramsar Convention. Pursuant to it, each Contracting Party has an obligation to designate at least one wetland and the right to add others to the List or, in special circumstances, delete them. A Contracting Party has obligations to promote the conservation of wetlands in its territory. His Honour observed that the limited role of the Bureau, to maintain the List and be informed of changes, is consistent with each Contracting Party's right under Article 2(5) to add or remove wetlands from the List. 25 His Honour held that a designation by the Commonwealth for the purposes of s 17(1) of the EPBC Act requires the Commonwealth to provide material which indicates or specifies the subject site. The expression itself does not require the giving of precise geographical coordinates or the provision of a map in the nature of a survey. It is sufficient to designate a site by providing information to enable its approximate boundaries to be determined. Sufficient information was provided in the RIS and in maps with it. The site was, in his Honour's view, designated within the meaning of the section. 26 His Honour rejected the submission that to be designated under Article 2(1) required strict compliance with the Article. In his Honour's view, s 17(1) of the EPBC Act was not intended to incorporate any particular requirement derived from Article 2 as a pre-condition for the valid designation of a wetland for inclusion in the List. Given the obligation on the part of the Commonwealth to designate at least one wetland, and the limited function of the Bureau in maintaining the List, his Honour reasoned that the expression in s 17(1) 'under Article 2 of the Ramsar Convention for inclusion in the List' was intended only to identify the source of the Commonwealth's obligation or right to designate a wetland of international significance. 27 His Honour considered that there was an underlying, but incorrect, assumption in the appellants' argument about the requirements of Article 2(1) in any event. Whilst a Contracting Party is obliged to provide the information specified, that does not mean that a failure to do so meant that the rights and duties flowing from the inclusion in the List were not to be obtained. The Convention does not give expression to this. To give it this effect would cut across its object and purposes. This view of the Convention was supported by the practice of the Contracting Parties. Whilst repeatedly urging parties to complete maps and description of wetlands, there had been no suggestion that a failure to do so means that a wetland was not to remain listed. 28 In conclusion his Honour added that, had it been necessary to determine whether there was in fact a precise description of the Windella Ramsar site, he would have been prepared to so find. In his Honour's view the information supplied by the Minister was sufficient for an interested person to ascertain, albeit with the application of some skill, the coordinates for each of the four corners of the site. 29 Neither s 17(1) nor the EPBC Act imports the Ramsar Convention into domestic law. Nevertheless regard may be had to the terms of a Convention where there is ambiguity in the domestic legislation: Dietrich v The Queen (1992) 177 CLR 292at 305-6; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273at 315; on the footing that, prima facie, Parliament should be taken as intending to legislate in conformity with international law: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298at 304. Section 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth)also permits reference to a treaty to assist in the ascertainment of the meaning of a statutory provision. 30 The appellants made reference at various points in their submissions to the need for conformity between Article 2 of the Ramsar Convention and s 17(2) of the EPBC Act, referring to cases such as Commonwealth v Tasmania (1983) 158 CLR 1at 123-131; 232 and Koowarta v Bjelke Petersen (1982) 153 CLR 168at 260-261. I understood these references to be in aid of a general submission concerning the construction of conventions and domestic statutes and not to suggest some disconformity which might spell invalidity of the section. No such issue had been raised in the proceedings. 31 It does not seem to me that there is any uncertainty attending the meaning of that part of s 17(1): '… designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article … .' In particular the ordinary meaning of the word 'designated' is plain. It means to nominate, specify, indicate, describe or identify. Of itself it does not have a meaning which requires precision in description. Nothing in the section or the EPBC Act suggests that it needs to be read as if it required precise boundary identification or mapping. 32 The appellants submitted that it was likely that more was required by the act of designation, and in particular mapping which might follow a survey and show the boundaries of the wetlands. This was because the EPBC Act intersects with a number of State regulations where this precise identification is required. The purpose of these various regulations was not however gone into. It is not obvious why their requirements are relevant to an interpretation of s 17(1). In any event the point, not raised before his Honour, is met by the evidence that, with the application of some skill, the boundaries of the sites can be ascertained. 33 It was further submitted that the requirement of public notice suggests that the public be informed of what land is involved, particularly since pecuniary penalties may be imposed for contravention and those whose property interests may be affected have a right to know. In the ordinary course the property owner affected would have been party to the negotiations which s 326(1) of the EPBC Act requires towards an agreement about the future of the wetlands. That occurred in the present case regarding the Windella Ramsar site and maps produced. In the case of successive landowners, they would be able to access or have someone skilled access the database as mentioned above. 34 The EPBC Act does provide a mechanism for notifying the public about wetlands. It does not however require that the areas be notified prior to or even at the time of designation. Section 327(2) envisages that the notice specifying an area of land that has been included in the List be given after the event of designation occurs. It cannot be read as a requirement of designation. It may be, to take up the appellants' point, that these notices require a specification sufficient for an understanding of what areas are involved. It is not necessary to decide that point, save to observe that s 327(3) confirms that a failure to comply with the section does not affect the status of an area as a declared Ramsar wetland. 35 Section 17(1) of the EPBC Act, as the appellants rightly conceded, does not expressly import that part of Article 2 which contains the requirements of a precise description of a site's boundaries and mapping. There appears to be no basis for their implication. The word 'under' [Article 2] does not, in the context of s 17(1), mean 'in accordance with the requirements of the Article'. I respectfully agree with Sackville J that the expression is intended only to identify the source of the Commonwealth's obligation or right to designate wetlands. 36 Section 17(1) does however borrow from the Convention the words 'designated … for inclusion in the List of Wetlands of International Importance' and refers to the List kept under that Article. The meaning of the word 'designate' in Article 2 then assumes some importance. Where a provision of a treaty is transposed, the legislature discloses a prima facie intention that they have the same meaning: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225at 230-1; 240 ('Applicant A'). The question which then arises is whether that word derives a different meaning in the context of Article 2 and the treaty; and in particular whether it incorporates the requirements of the second sentence of the Article into its meaning. 37 Treaties are interpreted in Australia in accordance with the requirements of the Vienna Convention on the Law of Treaties Article 31 (the Vienna Convention): Applicant A at 251-252 and the cases there cited. Article 31 of that Convention provides the leading general rule to interpretation. It requires: '1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' 38 Article 31(3)(b) provides that there shall be taken into account, together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. 39 McHugh J in Applicant A explained the approach to be taken in applying Article 31. His Honour's approach has been described as 'holistic but ordered' (per Brennan CJ at 231). It is necessary, his Honour held, that interpretation be according to the ordinary meaning of the treaty's terms and the context, object and purpose of the treaty (at 256). Both McHugh J and Gummow J would give primacy to the ordinary meaning (at 254 and 277). I have referred to the ordinary meaning of the term to 'designate'. It does not have the meaning for which the appellants would contend. 40 The appellants sought to derive the requirements of a precise description of boundaries and of mapping from the purposes of the Ramsar Convention. They submitted that if the carrying out of the purpose of the Convention requires the protection of wetlands of international importance, the proper identification of those wetlands must be seen as part of that purpose. The case relied on for that proposition, Richardson v Forestry Commission (1988) 164 CLR 261at 290 ('Richardson'), is not however a case in point. Not only did the relevant Convention (Convention for the Protection of World Cultural and Natural Heritage) oblige each State Party to 'identify and delineate' properties having the requisite values (see at 263), the legislation in question reiterated that obligation as part of the Act's purposes. The purpose of protection of wetlands nominated by a Contracting Party to the Ramsar Convention cannot be said to require precise description as a precondition to listing. To do so would mean protection was not available because of a shortfall in information. 41 The functions of the Bureau set up under the Ramsar Convention do not suggest that the information required by Article 2 is necessary for its purposes in connexion with Listing. The Bureau does not have to determine whether wetlands should be included. It maintains the List and ensures it is kept up to date. The operation of the Convention may be contrasted, as Sackville J pointed out, with the function of the World Heritage Committee under the Convention for the Protection of the World Cultural and Natural Heritage, referred to in cases such as Queensland v Commonwealth (1989) 167 CLR 232and Richardson above. Under that arrangement, a state party not only had an obligation to identify and delineate properties, it was also a matter for the Committee to determine whether the property had the necessary values to warrant listing. It may be seen that precise and detailed description of land, water and other features may be necessary for such a purpose. 42 There is no doubt that Article 2 seeks to create an obligation on the part of Contracting States to provide a precise description of boundaries and a map of the wetlands. It is in that sense a requirement of the Article, but that does not mean it is a requirement of designation or a precondition to listing. Designation has a different meaning and is an act of a Contracting Party separate from the provision of information. Put another way, there is no suggestion in the Convention that a failure to provide the information required by Article 2 would result in a site not being listed or being removed from the List. Reference to the many considerations of the Contracting Parties at their meetings over the years confirms such an interpretation. 43 Article 31(3)(b) of the Vienna Convention regards subsequent practices and agreements of Contracting Parties which reflect upon the interpretation of a treaty as part of its context. This approach is of particular importance in this case. The history of the meetings of the Contracting Parties discloses a concern to have the information required by Article 2(1), and more, provided. At no point however has it ever been suggested that if it were not done at the time of designation, that designation is taken not to have occurred or that a listing would be regarded as invalid. The requirement is seen as something which should be attended to as soon as possible. 44 It follows in my view that s 17(1) of the EPBC Act does not require a precise description of the boundaries of a wetland nor its mapping for there to be a designation. In my respectful view, his Honour was plainly correct in so determining.

whether a significant impact 45 The appellants conceded before his Honour that the actions of clearing, ploughing and sowing carried out on the Windella Ramsar site between 27 June 2002 and 16 August 2003 had an impact on the ecological character of the site. They disputed that there had been a significant impact. The question is, as his Honour observed, one of fact. 46 His Honour accepted the submission that in determining the impact these activities undertaken in February and March 2003 had, it was necessary to consider the character of the site immediately before those activities were carried out. His Honour found that the habitat value of the site had been diminished by the construction of a dam, by a fire, the spread of noxious weed and the dredging of a nearby channel. However the evidence showed that native wetland plants were present on the site together with some native trees. Dead trees and fallen logs in particular provide a habitat critical to some species of birds. The site therefore still retained some important attributes and had the ability to regenerate relatively quickly. 47 Given the attributes the site possessed, his Honour considered the conclusion that the activities had made a significant impact upon the ecological character of the site inevitable. The site was virtually sterilised. There was evidence from an expert about the significance of the loss of vegetation from the site on plants and for the habitat or life cycle of species dependent upon the Windella Ramsar wetlands. 48 The appellants submitted that the site was degraded prior to the clearing of the land. It seems to me however that the factors to which the appellants point in this regard are those already taken into account by his Honour - the extent of clearing which had already occurred and the other factors which diminished it somewhat. It was after determining the features of the site as a wetland that his Honour considered the impact of the appellants' activities. As the respondent pointed out in argument, whether there is or has been a significant impact does not depend upon the wetlands being 'natural' or 'pristine' prior to the activities. 49 The appellants submitted that the only attributes of the wetlands lost as a result of the activities was the dead timber and the capacity for regeneration being reduced from 'fairly swiftly' to 'over time'. The submission overlooks the evidence of Mr McCosker to which his Honour referred. Clearly a significant aspect of the ecology of the site prior to the clearing was the extent of the fallen dead timber and standing dead trees. When Mr McCosker later saw the site there was no habitat except for micro-organisms in the soil. It was unfortunate, in his view, that the timber and trees had been removed because they were an integral component of habitat for waterbirds and as roosting sites. An imbalance in the soil had been caused and when the site regenerated it would have a different, though slightly different, ecological character. 50 Mr McCosker's evidence, set out in his Honour's reasons, also included reference to the effects which would follow if cropping continued. His Honour did not however make a finding about future effects. The contravention upon which the penalties were based was the act of clearing in February and March 2003 together with subsequent cultivation.

PENALTY 51 In further reasons on penalty, his Honour took into account a number of factors including those listed in s 481(3) of the EPBC Act. In particular his Honour found that the contravention was deliberate; that the first appellant was well aware that he was not entitled to clear the land; and that he would contravene the EPBC Act. Further he had showed no contrition. His Honour rejected an argument that the first appellant had laboured under an honest mistake about the status of the land. The appellants co-operated only when they had to. The actions took place over a period of time. On the other hand there was no prior conduct of this kind on the part of the appellants to which his Honour was referred and this was an important factor in their favour. They had not made any great profit from their actions, but they were undertaken for commercial considerations. The appellants had assets and would not suffer financial hardship from the imposition of the penalties. His Honour considered whether the first appellant could be said to have been punished twice, because he would in effect bear the burden of the company's penalty, but concluded that the company should be penalised because it had been involved in a deliberate contravention. His Honour said, however, that he would bear in mind the total of the two penalties. The extent provided for maximum penalties was indicative of the seriousness of the offence. His Honour held that this contravention was serious but not in the worst category. 52 The appellants listed a number of errors in his Honour's approach. None of them appear to me to be well-founded. It was said that his Honour failed to take into account that the land was already degraded. His Honour was clearly aware of this when determining whether the impact of the activities was significant. The appellants are really contending that the land was overvalued in this process, they pointed out that its monetary value was only some $120,000 and that it was not a very important wetland. The latter contention is met by the expert evidence. Further in assessing penalty the Court is not meant to consider the utility of protecting the site. That has been determined by its designation for the purposes of the EPBC Act. 53 It was submitted that his Honour used the appellants' lack of contrition as an aggravating factor. His Honour did not say so and there is nothing to suggest that his Honour did otherwise, than to reject the prospect of discounting an approach which might have been taken if contrition had been shown. 54 It was submitted that the total penalty was imposed de facto on the first appellant. However, as his Honour's reasons show, his Honour was concerned about this and took into account what the effect of the total penalties would mean for the first appellant. This accords with the approach taken by Weinberg J in Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd (1999) ATPR 41-716at 43,249 where his Honour made allowance when penalising both the company and a shareholder. This consideration does not amount to the first appellant being punished twice for the same conduct. The second appellant is a separate entity and has its own liability now to meet the penalty imposed. It was clearly correct to impose a penalty upon it, given its part in a deliberate contravention. And it was clearly correct to impose a penalty on the first appellant who directed the actions. The fact that he did so also as an agent of the company is beside the point. No nominal penalty would have been appropriate. 55 The total of the fines were said to be manifestly excessive, but the contention was not made out. The penalties are well below the maximum allowable and properly reflect the deliberate nature of the contravention. The appellants contend that his Honour did not place the conduct on a scale of seriousness and that the most serious offence would be repeated conduct. Here the conduct took place only over one month. But his Honour did consider this issue and found that the conduct was not the most serious, but it was serious. His Honour referred to the period of time over which the actions occurred. 56 The appellants submitted that his Honour failed to give credit for the fact that they did not dispute essential facts; that they gave undertakings to rehabilitate the site; and did not take into account the costs that they had incurred as a result of the proceedings. The latter factor can be dismissed as largely irrelevant. It is a matter for the appellants whether to contest proceedings on largely technical grounds and raise, by way of defence or mitigation, a state of mind which was held not to be credible. The other matters do not stand out as warranting any substantial discounting. In particular the giving of undertakings is often responsive and has to do with avoiding unnecessary costs. 57 The appeal should be dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1591 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR THE ENVIRONMENT AND HERITAGE

REASONS FOR JUDGMENT WEINBERG J: 58 I have had the advantage of reading in draft the reasons for judgment prepared by Kiefel J. I agree entirely with those reasons, and with the orders proposed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1591 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR THE ENVIRONMENT AND HERITAGE

REASONS FOR JUDGMENT EDMONDS J 59 I have had the advantage of reading in draft the reasons for judgment of Kiefel J. I agree with her Honour's analysis of the issues raised on this appeal, and also with the orders proposed. I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 13 July 2005 Counsel for the Appellants Mr S M Littlemore QC with P M Lane

Solicitors for the Appellants PriceWaterhouseCoopers Legal

Solicitors for the Respondent: Australian Government Solicitor

Environment Protection and Biodiversity Conservation Act 1999(Cth)ss 16, 17(1), 528, 3(1), 3(2), 17(2), 326(1), 327, 481(3)

Crimes Act 1914(Cth)s 4AA(1)

Statutes Acts Interpretation Act 1901(Cth)s 15AB(2)(d)

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (4)

Cases Cited (12)

Cited By (6)