Consideration
33 There are a number of provisions of the Act which deal with the question of how the Minister is to give effect to the precautionary principle when exercising his powers under the Act. These provisions are not entirely consistent.
34 Section 391(1) (when read with sub-section (3)) stipulates that the Minister "must take account of the precautionary principle" in making decisions under s 133 to the extent he "can do so consistently with the other provisions of [the] Act." Section 136(1) provides:
"In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;
(b) economic and social matters."
35 Subsection 136(2) provides that, in considering the matters identified in subsection (1) "the Minister must take into account" various considerations including "the principles of ecologically sustainable development." These principles are identified in s 3A. They include, in para (b), a different formulation of the precautionary principle:
"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 environment degradation;"
36 Neither s 391(1), nor s 136(2) requires the Minister to "take account of" or "take into account", the precautionary principle in isolation. Under s 391(1) the Minister is obliged to take into account the precautionary principle only to the extent that this can be done consistently with the other provisions of the Act. Under s 136 the Minister is required to take into account the precautionary principle together with the other principles of ecologically sustainable development and a variety of other matters including economic and social matters. The Minister is not obliged to accord pre-eminence to the precautionary principle when making decisions under ss 133 and 136. 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.
37 It is in this statutory context that LFF's complaint that the Minister failed to give proper, genuine or realistic consideration to the precautionary principle falls to be considered. The requirement that a decision maker must give "proper, genuine and realistic consideration" to the matters which he is required to have regard can be traced to the decision of Gummow J in Khan v Minister for Immigrationt and Ethnic Affairs (1987) 14 ALD 291 at 292. This dictum has been applied in a number of immigration cases heard by this Court: see, for example, Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586; Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77. This approach to judicial review has attracted a good deal of academic criticism: see, for example, J McMillan, "Judicial Restraint and Activism in Administrative Law" (2002) 30 Federal Law Review 335 at 361-364; M Aronson, B Dyer and M Groves, "Judicial Review of Administrative Action" (3rd ed), Lawbook Co. 2004, at 254. One element of this criticism has been that such a requirement cannot be superimposed on the "failure to have regard to relevant considerations" ground of judicial review. To do so would be inconsistent with the analysis of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, where his Honour held that, if a decision maker failed to give adequate weight to a relevant factor of great importance when coming to a decision, the preferred ground of review was manifest unreasonableness, not failure to have regard to relevant considerations. More importantly, however, is the concern that the "proper, genuine or realistic consideration" requirement operates as an invitation to Courts to enter on the merits of administrative decision making. Later curial decisions have echoed this concern: see, for example, Bruce v Cole (1998) 45 NSWLR 163 at 186 (per Spigelman CJ). In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 442 a Full Court of this Court observed that the formula "creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any … decision can be scrutinised".
38 There may be cases in which a decision maker can be shown to have done no more than pay lip service to an obligation to have regard to a particular matter which he is obliged to take into account. These will be rare cases. The present is not one of them.
39 The Department's recommendation report (which was prepared under s 95C of the Act and to which the Minister was required by s 136(2)(bc)(ii) to have regard) gave careful attention to the precautionary principle. It advised the Minister that:
"There is clearly a lack of full scientific certainty about the proposal but the Department recommends a range of measures to prevent degradation of the environment."
These measures included the attaching of conditions to the grant of approval. This recommendation led the Minister to conclude:
"that any lack of certainty related to the potential impacts of the effluent discharge on the Commonwealth marine environment … would be satisfactorily addressed by conditions that restrict the discharge of pollutants to prescribed levels, impose strict monitoring of the effluent and the receiving environment and adopt trigger points and maximum limits which, if exceeded or reached, require the application of remedial management responses in a timely manner to avoid adverse impacts."
This was, plainly, an application of the precautionary principle.
40 It led the Minister to impose the conditions which prescribe maximum levels of discharge, impose a monitoring regime and mandate trigger points at which remedial management responses are required. LFF attacks the efficacy of the conditions which give effect to the Minister's decision. It seeks to suggest that they cannot be characterised as provisions which provide protection to the environment in accordance with the precautionary principle: rather, it is said, they are temporary restrictions which reflect the lack of scientific information available to the Minister on the environmental impact of the proposed effluent discharges. This attack is founded on the same selective analysis of the evidence and recommendations which have been dealt with under Ground 1. It is, in my view, but a thinly veiled attack on the merits of the Minister's decision insofar as it involved the imposition of conditions. LFF has failed to establish that the Minister failed to give adequate consideration to the precautionary principle. On the contrary, the Minister, in imposing Conditions 31, 32 and 42 and those which put in place the monitoring regime, sought to give effect to that principle: cf Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [55]-[56]. These conditions were designed to deal with any unexpected adverse outcomes of the decision to approve the mill.
41 I have, thus far, assumed that the Minister was required, by either or both ss 136(2) and 391(1) of the Act, to have regard to the precautionary principle when exercising his powers under ss 133 and 134. It may, however, be doubted that, having regard to the material before him, he was under any such obligation. The precautionary principle, as expressed in both ss 3A(b) and s 391(2) of the Act, is called into play where there exist "threats of serious or irreversible environmental damage": see Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510 at 521. The findings made and the conclusions reached by the Minister, which are recorded above at [24] and [25] strongly suggest that he did not identify any threat of serious or irreversible damage to the Commonwealth marine environment which would be caused by the proposed discharge of effluent. Certainly he made no express finding to this effect.
42 Some of the arguments advanced by LFF in relation to this ground turn on the question of whether the Minister has the power to vary the discharge limits which he has imposed should the results of monitoring suggest that this is necessary. On the view I take of the issues raised by Ground 2, nothing turns on this point. The matter was, however, fully argued and was also pressed in the context of Grounds 6 and 9. I will, therefore, venture some short observations. All parties accepted that the Minister had power, under s 143(1) and, in particular under paras (b) and (ba), to revoke, vary or add conditions if it is found that approved action has had (or the Minister believes will have) "a significant impact" on the environment. Para (b) deals with the situation where that impact was not identified at the time at which approval was given. Para (ba) applies where the impact is substantially greater than the anticipated impact which was identified prior to approval.
43 LFF argued that these provisions were "not apt to deal with impacts which, although foreseen, were not assessed adequately at the time of approval." The power conferred on the Minister by s 143(1) is not conditioned on a test of what was or was not foreseen at the time at which approval was given under s 133. Paras (b) and (ba) confer power on the Minister by reference to whether the relevant impact or the effect of the impact had been identified during the assessment process leading to approval. In a case such as the present where the potential for some damage to the environment was recognised but, after the action had been taken, it was found to have been underestimated, para (ba) would enable the Minister to add more stringent conditions if he was satisfied that the impact of the action on the environment was substantially greater than that earlier identified.
44 Ground 2 must be rejected.