Margarula v Minister For Environment

THE LEGISLATION 3 It will conduce to a better understanding of the facts that give rise to the application if I first set out the legislative background. Section 5(1) of the EPIP Act provides: "The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to: (a) the formulation of proposals; (b) the carrying out of works and other projects; (c) the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States); (d) the making of, or the participation in the making of, decisions and recommendations; and (e) the incurring of expenditure; by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person." 4 Section 6 empowers the Governor‑General to approve administrative procedures for the purpose of achieving the object of the Act. Section 8 provides: "Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister: (a) for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures; and (b) for ensuring that any final environmental impact statement or public environment report formulated in accordance with those procedures, and any suggestions or recommendations made in accordance with those procedures, are taken into account, in matters to which they relate, in the Department administered by the Minister and by any authority of Australia in respect of which the Minister has ministerial responsibilities." Section 11(1) provides: "For the purposes of procedures approved under this Act or for achieving the object of this Act, the Minister may direct that an inquiry be conducted in respect of all or any of the environmental aspects of a matter referred to in any of the paragraphs of section 5, whether or not an environmental impact statement or public environment report has, in accordance with procedures under this Act, been furnished to the Minister." If the Minister directs that an inquiry be conducted, he must appoint the members of a Commission to conduct it: sub‑s (2). A Commission is not subject to directions by the Minister, or otherwise by or on behalf of the Australian Government, in or in relation to the conduct of an inquiry. 5 Section 112 of the Customs Act 1901 empowers the Governor‑General to prohibit, by regulation, the export of goods from Australia. Regulation 11 of the Customs (Prohibited Exports) Regulations ("the Regulations") together with Sch 9 prohibits the export of uranium without a written approval issued by the Minister for Primary Industries and Energy or by a person authorised by him to approve the export of goods specified in Schedule 9. THE PROCEDURES 6 Paragraph 1.1A of the Procedures requires the "action Minister" in relation to a "Commonwealth action" to consider whether an action that is proposed to be taken is one for which a "proponent" should be designated under par 1.2.1. The expression "action Minister" means the Minister who is, or will be, responsible for the action. A "Commonwealth action" is an action of a kind referred to in any of pars 5(1)(a) to (e) of the EPIP Act that is proposed to be taken by or on behalf of the Commonwealth or an authority of Australia. A "proposed action" is a Commonwealth action in respect of which a proponent has been designated under par 1.2.1. If the action Minister is satisfied that the action is an environmentally significant action, or that for other reasons it is desirable to designate a proponent in order to achieve the object of the Act, he must designate an appropriate person or Department as the proponent of the proposed action, and notify the Environment Department of the proposed action and the name of the proponent: par 1.2.1. The proponent of a proposed action must do all things necessary to enable the Procedures to be complied with in relation to the proposed action: par 1.3. The proponent must supply to the Environment Minister or the Environment Department such information as is required by the Procedures so as to enable the Environment Minister to determine whether an environmental impact statement ("EIS") or a PER is necessary in relation to the proposed action: par 2.1. Paragraph 2.2 sets out the required information. After the required information has been provided, the Environment Department is required either to determine on behalf of the Environment Minister that the preparation of an EIS or a PER in relation to the proposed action is not required, or to refer to the Environment Minister for determination the question whether an EIS or a PER should be prepared: par 3.1.1. As soon as possible after the Environment Minister directs the preparation of an EIS or PER, he must inform the proponent of the direction and publish notice of it in the Gazette: par 3.4. Paragraph 4 deals with the contents of an EIS and a PER. An EIS and a PER must be made available for public comment: par 6.2.1. Paragraph 7 deals with the matters to be taken into account by the Environment Minister in deciding whether to direct that an inquiry be conducted in relation to the environmental aspects of a proposed action. Paragraph 8 enables the proponent to revise an EIS. Paragraph 9.1 requires the Environment Department to examine the final EIS or the PER and written comments received in relation to the PER under par 6.3.1(d) or par 6.4, and report to the Environment Minister. Paragraph 9.2 provides: "For the purposes of paragraph 9.1.1., the Minister, may, within 21 days after the receipt of the final environmental impact statement under subparagraph 8.2(a) or the public environment report and written comments received in relation to the public environment report under subparagraph 6.3.1.(d) or paragraph 6.4., require the proponent to provide, within a reasonable period, such other information as is specified and is necessary for the purpose of examining the environmental impact statement or the public environment report." Paragraph 9.3.1 provides: "The Minister shall, within the relevant period under paragraph 9.4., make any comments, suggestions or recommendations to the action Minister and other relevant Ministers concerning the proposed action, whether or not contained in the report prepared by the Department under paragraph 9.1.1., including suggestions or recommendations concerning conditions to which the proposed action should be subject, that the Minister thinks necessary and desirable for the protection of the environment, and the Minister, and the Department on behalf of the Minister, shall inform the proponent accordingly." THE FACTS 7 ERA proposes to mine and export uranium ore by underground operations from an area of land in the Northern Territory over which it holds a mineral lease, known as the Jabiluka mineral lease. The site is approximately 230 kilometres east of Darwin, and approximately 20 kilometres to the north of the existing Ranger uranium mine, which is also operated by ERA. The lease area is adjacent to but has never been part of the Kakadu National Park or the Kakadu World Heritage Area. Uranium ore has been mined and milled at the Ranger mine since the early 1980s. ERA's acquisition of the Jabiluka mineral lease enables the ore body to be jointly developed with the existing Ranger infrastructure. Jabiluka ore could be taken by road train to Ranger, and because of the similarity of Jabiluka and Ranger ore, they could be combined for processing through the mill at Ranger, and tailings waste deposited in the existing pits at Ranger. By an agreement between ERA and the Northern Land Council ("the NLC") in December 1991 ERA agreed that it would not mill Jabiluka ore at Ranger without the NLC's consent, which was to be given in accordance with the direction of the traditional Aboriginal owners of the Ranger Project Area. 8 In his letter to the Environment Minister dated 14 May 1996 the Resources Minister designated ERA as proponent "in relation to prospective decisions to grant approvals for uranium exports from the Jabiluka mine under reg 11 of the Customs (Prohibited Exports) Regulations". On 23 June 1996 the Environment Minister agreed that the appropriate level of environmental assessment was an EIS. No inquiry was directed. On 17 October 1996 ERA released a draft EIS for public comment. The draft EIS was on display until January 1997. Public submissions were received. The draft EIS repeated the proposal to truck all ore from the Jabiluka mine site to the Ranger mine for milling, but said that if approval was denied or delayed, an alternative was to mill and process Jabiluka ore and dispose of tailings within the Jabiluka lease. On 17 June 1997, after taking into account the public comments and government reports, ERA prepared a "Supplement to Draft Environmental Impact Statement". 9 On 12 August 1997 the Environment Protection Group in the Environment Department assessed the EIS and recommended to the Environment Minister that "the risks to the bio‑physical, historical, cultural and social environments from the Jabiluka proposal going ahead are acceptable, provided that the mine operates under stringent environmental controls". On 22 August the Environment Minister agreed with the Department's recommendations. By letter of the same date he informed the Resources Minister that "On the evidence available to me, there does not appear to be any environmental issue which would prevent the preferred Jabiluka proposal from proceeding". However the Minister went on to say that he had made a number of recommendations which he requested be taken into account in accordance with the EPIP Act. One of the recommendations was that if an alternative to the preferred proposal contained in the final EIS was to be implemented, further environmental assessment would be required before any export approval could be given by the Commonwealth. By letter of 8 October the Resources Minister informed ERA that he had no reason to disagree with the recommendations of the Environment Minister. The Resources Minister required ERA to undertake certain studies as identified in the recommendations of the Environment Minister, and to provide other reports and information. The letter also referred to the possibility of ERA milling Jabiluka ore at the minesite. The Resources Minister stated that there would be no environmental impediment to prevent ERA commencing work on elements that were common to both the Ranger Mill Alternative and the JMA, subject to compliance with conditions which were common to both proposals. He said he would be in a position to consider the issue of an export permit after all requirements had been met and any other considerations raised by the Environment Minister had been dealt with. 10 On 24 October 1997 the NLC informed ERA that as a result of consultations with the traditional Aboriginal owners, the NLC refused to consent to Jabiluka ore being milled at Ranger. By letter dated 22 April 1998 the Resources Minister informed the Environment Minister that he designated ERA as the proponent for the JMA in relation to prospective decisions to grant approvals for uranium exports. On 24 April the Environment Department recommended to the Environment Minister that he conduct an assessment of the JMA by means of a PER, a recommendation which the Environment Minister adopted on 25 April. On that day the Environment Minister made a determination under par 3.1.1 of the Procedures requiring a PER for the purposes of a decision to be made by the Resources Minister in relation to the approval of uranium exports that might result from ERA's proposal to mine, mill and process uranium ore at the site of the Jabiluka mine. The Environment Minister informed the Resources Minister that the assessment of the PER would be conducted jointly with the Northern Territory. He said that the information contained in the EIS previously prepared for the Ranger Mill Alternative would be sufficient to address a number of areas of the JMA, so that the PER should concentrate on impacts associated with the proposed milling operation at Jabiluka. Nevertheless, work carried out by ERA was required to be consistent with conditions previously specified. 11 ERA prepared a PER for the JMA. It was available for public comment, and many submissions were received. The JMA proposed to adopt cemented paste‑fill technology for the disposal of the tailings. Tailings would be treated with cement additives to form a paste that would harden into a solid mass when placed in the cavities of the underground mine. It was also proposed to build tailings disposal pits of a size to accommodate all tailings that could not be disposed of in the underground mine void. On 27 July 1998 the Environment Department advised the Environment Minister that there were uncertainties about the use of the cemented paste technology for the long‑term disposal of tailings, and a real but low risk of contamination of ground water. A report was prepared which contained a series of recommendations concerning further investigations, analysis, research, testing and plans. 12 On 12 August 1998 the Department engaged Unisearch Ltd to provide an independent review of the available scientific information, to assist the Environment Minister to determine whether or not the JMA was environmentally acceptable. Unisearch was asked to address the hydrogeology of the site prepared for the tailing pits at Jabiluka and the long‑term efficacy of the proposed cemented paste method. A report entitled "Review of Jabiluka Mine Alternative Tailings Management Proposal" was prepared by Unisearch and was released on 19 August. Later in August ERA submitted to the Minister a report entitled "Jabiluka Mill Alternative - Synopsis of Key Issues and Processes". In essence the principal environmental question was not the technology of placing cemented paste into the underground mine void, but the disposal of some of the tailings using conventional slurry tailings disposal in pits that were not underground. ERA presented an alternative of placing 100% of the tailings back underground into the mine void. 13 By letter of 25 August the Environment Minister informed the Resources Minister that he had been advised that, provided the recommendations set out in the letter were complied with, the proposal to mill uranium ore at Jabiluka could proceed with no significant threat to the environmental and world heritage values of Kakadu National Park. One of the recommendations set out in the letter was that "the milling of uranium ore at Jabiluka will be environmentally acceptable if 100% of the tailings are placed back underground in the mine void and the recommendations in Attachment A are complied with". However, the Environment Minister went on to say that "On the basis of advice from the Supervising Scientist, I believe there is every prospect that further assessment can identify design amendments which ensure that tailings can be adequately managed and disposed of without the need to return all tailings underground". 14 By letter of 27 August the Resources Minister informed ERA that he had no reason to disagree with the recommendations of the Environment Minister, and he stipulated numerous requirements for ERA to meet before he would be in a position to consider the issue of an export permit for uranium produced from mining conducted under the JMA. The letter recited the Environment Minister's indication that the milling of uranium ore at Jabiluka would be environmentally acceptable if 100% of the tailings were placed back underground subject to "ERA preparing an amended proposal, to the satisfaction of the Supervising Scientist and the supervising authority, under which 100% of the tailings are placed back underground in the mine void". The letter also noted the Environment Minister's belief that there was every prospect that further assessment could identify design amendments to ERA's preferred option which would ensure that tailings could be adequately managed and disposed of without the need to return all tailings underground, and referred to the Environment Minister's recommendation for a process to consider options other than placing 100% of the tailings in the mine void. THE APPLICABLE PRINCIPLES Section 5 15 The parties were in agreement as to the principles relevant to applications under s 5 of the ADJR Act, in particular as to what amounts to a "decision", and when a decision is made "under an enactment". A "decision" within s 5 will generally be final or operative and determinative, at least in a practical sense, of the issue of fact calling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision, unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision, can be described as a decision under an enactment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337. The reviewable intermediate decision is the qualification to which the word "generally" is directed. A "decision" must also be a substantive as distinct from a procedural determination: Bond at 336‑337. A decision is made "under an enactment" only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect: Salerno v National Crime Authority (1997) 75 FCR 133 at 143. It follows that there will be no "decision" made "under an enactment" where there is only · a decision that is neither expressly nor impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way: Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 273, 278; Knuckey v Federal Commissioner of Taxation (1997) 97 ATC 4911 at 4917‑4918 (affirmed (1998) 98 ATC 4903); Schokker v Commissioner of Taxation (1998) 82 FCR 113; Salermo at 143 · the making of a finding of fact or the formation of a view as to fulfilment of a statutory criterion prior to the exercise of a statutory power: Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 107 · a policy decision or an "in principle" decision made in advance of the exercise of a statutory power: Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 548‑550; Randwick City Municipal Council v Minister for the Environment [1998] FCR 1376. Section 6 16 Except upon one issue the parties were in agreement as to the principles relevant to applications under s 6, in particular as to the meaning of "conduct" and when conduct is engaged in for the purpose of making a decision. Section 6(1) refers to "conduct for the purpose of making a decision to which this Act applies". The word "conduct" is defined in s 3(5) to include "the doing of any act or thing preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry". Conduct is essentially procedural and not substantive in character, and does not include intermediate acts forming the basis of final decisions: Bond at 342; Minister for Immigration v Ozmanian (1996) 71 FCR 1 at 21‑22. In Aboriginal Land Council v Aboriginal and Torres Strait Island Commission (1995) 59 FCR 369 at 380‑381 Hill J said: "In my view, and consistently with what the Chief Justice said in Bond, the conduct which … is reviewable is the procedure which the decision‑maker engages in for the purpose of making the relevant decision. This has two implications for the present case. The first is that it is necessary, before there can be review of conduct under s 6(1) …, that there be able to be identified decisions of the relevant kind, not yet made, in circumstances where the Tribunal has embarked upon, or proposes to embark upon, the decision‑making process leading up to the making of these decisions. The second matter is that the review must be concerned with the procedure adopted by the decision‑maker as the decision‑making process leading up to the making of the relevant decision, the making of a decision in the course of the process not being, conformably with Bond, relevant conduct." 17 For the respondents it was submitted that s 6(1) conduct must be that of the decision‑maker. This was the issue upon which the parties were at odds. The respondents relied on Century Metals and Mining NL v Yeomans (1988) 85 ALR 29 at 46‑47 where French J drew attention to the opening words of s 6(1): "Where a person has engaged, is engaging or proposes to engage in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on one or more of the following grounds …", and to par (c) of the grounds of review: "that the person who has engaged, is engaging or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision". French J said that the opening words of s 6(1) ‑ "conduct … for the purpose of making a decision" and the language of ground (c) "strongly suggest that the person engaging in the conduct in question is the decision‑maker". 18 For the applicant it was submitted that French J's observation is inconsistent with Chan v Minister for Immigration (1989) 169 CLR 381 at 386 where Mason CJ said: "The refusal by the delegate of the application for refugee status was a decision made in the context that Mr Chan was there applying for a temporary entry permit and would apply for a permanent entry permit under s 6A(1) if his application for refugee status succeeded. There is a strong case for saying that in this setting the delegate's decision amounted to a decision under s 6A(1) and, if not, to 'conduct engaged in for the purpose of making a decision' to which the AD(JR) Act applies …. Refusal by the delegate of the application for refugee status was conduct engaged in as part of procedures leading to the ultimate unavailability of a permanent entry permit. It matters not that the antecedent decision was not made by the person who makes the decision to which the Act applies: see Gundeela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 556‑557." A perusal of the passage cited from Gundeela discloses that in the last sentence Mason CJ was espousing a more limited proposition than that "conduct" in s 6 need not be that of the decision‑maker. The Full Court in Gundeela said: "The respondents submitted that in order to fall within the terms of s 6, the person engaged in the anterior or preparatory conduct must be the person who has made or will make the decision to which s 5 of the Judicial Review Act applies. … As a matter of first impression, there is much force in the respondents' submissions. To speak of a person engaging in conduct for the purpose of making a decision would ordinarily be read as identifying antecedent conduct by the decision‑maker. On the other hand, it is undoubtedly true that much preparatory 'conduct' will be engaged in by administrators other than the individual upon whom the ultimate power of decision is conferred. To read the legislation as the respondents urge might deprive it of the utility which as remedial legislation it might be expected to have." This passage is concerned with the familiar case of departmental and other administrative conduct being attributed to ministerial decision‑makers. See, for example, Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 65‑66 per Brennan J. 19 In Merman v Comptroller‑General of Customs (1988) 16 ALD 88 at 94‑95 Lee J considered a suggestion that s 6 is limited to conduct engaged in by the person authorised to make the decision under the enactment. His Honour said: "If the scope of the section were so limited that section …. would have the effect of excluding a substantial area of conduct from judicial review. In view of the fact that a great range of conduct will be carried out by persons other than the decision‑maker preparatory to and for the purpose of the formation of that decision by the decision‑maker and the fact that such conduct may in itself create aggrieved persons, a narrow construction of s 6 may deny the process of review that would otherwise appear to be appropriately provided within the scheme and intent of the Judicial Review Act." His Honour then set out the passage from Gundeela at 556‑557, and continued: "In the present case the Minister issued a policy statement or guidelines setting out how he intended to obtain information for the making of a decision under s 8 of the Anti‑Dump Act. The Minister has made it clear that preparatory to making a decision and for the purpose of making such a decision he would have an inquiry conducted by officers of his Department and receive a recommendation as a result of that inquiry. It is difficult to conclude that the conduct of an inquiry by Departmental officers expressly authorised by the decision‑maker is other than the doing of an act or thing preparatory to the making of a decision including the taking of evidence or the holding of an inquiry or investigation as defined in s 3(5) of the Judicial Review Act and referred to in s 6. Having regard to the provisions of s 3(5), it is appropriate to read s 6 as extending to such acts or things done under the authority of or adopted by the decision‑maker to be used by him for the purposes of exercising his power to make a decision under an enactment." 20 The position in my view is that s 6 is limited to conduct engaged in by the person who makes the decision. But the acts of another person which have been authorised or adopted by the decision‑maker are to be attributed to the decision‑maker. If a responsible officer of a Minister's Department is acting in his capacity as such, his acts are authorised by the Minister and can be treated as the acts of the Minister. See Carltona Ltd v Commissioner of Works [1943] 2 All E R 560. OBJECTION TO COMPETENCY 21 The respondents have objected to the competency of the application on the ground that the "matters" sought to be reviewed are neither "decisions" nor "conduct" to which the ADJR Act applies. Environment Minister's failure to direct an inquiry 22 What is sought to be reviewed is the Environment Minister's decision "not to direct that an inquiry be conducted pursuant to s 11" of the EPIP Act. The advice given to the Environment Minister on 24 April 1998 was that "further consideration of an inquiry is not required, given the past assessment actions associated with the proposal". The Department went on to recommend that the Minister agree to a PER. The Minister accepted that recommendation, and must therefore have accepted the advice about an inquiry. For the applicant it was submitted that although the action pleaded was expressed as "not to direct that an inquiry be conducted", it could equally well have been expressed in the positive form - "to direct that a PER be conducted". It was then said that the Environment Minister's action was a substantive decision because s 11 provided for the making of an election or choice as to the level of assessment required, and this election or choice had significant consequences for the rest of the assessment process. It was thus an "intermediate" decision of the type contemplated by Mason J in Bond at 337. This submission involves a misunderstanding of s 11. Sub‑section (1) does not require the Minister to select a level of assessment. It simply empowers him to direct that an inquiry be conducted. The words "whether or not an environmental impact statement or public environment report has … been furnished" do not provide alternatives to an inquiry. They are intended to make clear that the Minister may direct an inquiry even if an EIS or a PER has been furnished to him. Whether an EIS or a PER is to be prepared is a matter for the Minister under the Procedures and not under s 11. Accordingly, I reject the choice or election submission, which is not consistent with the way the decision attacked is pleaded, a plea which accords with the proper construction of the section. 23 For the respondents it was contended that the Environment Minister had acted on the Department's advice that it was not necessary or appropriate to consider whether to exercise the power in s 11. It was said that there is a distinction between a decision not to exercise a statutory power, which may be reviewed, and no decision to exercise or not exercise a statutory power, which is in fact no decision at all. I do not think it correct to treat the Department as having advised the Environment Minister that there was no occasion for him to consider whether to exercise the power conferred by s 11. The reason given for the advice is based on the "past assessment actions associated with the proposal". In that context, the words "further consideration of an inquiry is not required" should not be read as "it is not necessary to consider whether to direct an inquiry". Rather they should be taken to mean that in view of the past assessment action an inquiry is not necessary. By accepting that advice the Environment Minister decided that there should not be an inquiry. 24 The question then is whether the decision not to hold an inquiry is a "decision" within the meaning of the ADJR Act. In my view it is not. The decision not to hold an inquiry did not determine any issue of fact falling for consideration. That is made clear by the fact that a different form of environmental assessment was directed. An inquiry is but one form of assessment available to the Environment Minister to enable him in due course to make recommendations to the Resources Minister. The contention that the decision not to hold an inquiry is an "intermediate" decision was put only as part of the choice or election construction of s 11, and falls with the rejection of that construction. Nor could it have stood as an independent submission. The decision not to hold an inquiry is not a finding or ruling for which s 11 provides. Section 11 and the Procedures provide for a range of procedures by which the environmental impact of a proposal can be assessed. To decide in a particular case that an inquiry under s 11 is not necessary, and that an alternative mode of assessment under the procedures is the appropriate course, is no more than a choice between the available procedural steps for the making of an assessment. 25 Paragraph 3.3 of the Procedures provides that "for the purposes of assisting in the making of a determination under paragraph 3.1.1 …, the Minister … may consult with any Department or authority of Australia, … any local authority or any other person or body". In Randwick City Council v Minister for the Environment [1998] FCA 1376 one of the "decisions" attacked was the Environment Minister's failure to consult the applicant and others pursuant to the power in par 3.3. Finn J held that the failure to consult was not reviewable. His Honour said: "The second decision, such as it was, amounted to no more than a choice by the Minister not to avail of a procedural step allowed to him by the Procedures. That decision may well have foreclosed an opportunity in the applicants and others (if selected for consultation) to further participate in the decision‑making process. It did not for the purpose of prerogative relief have legal consequence or effect; it did not affect legal rights. … And for the purposes of the ADJR Act, though it may have been a decision under an enactment, it was not a decision that was final or operative and determinative in relation to a substantive, as opposed to a procedural matter. At best the second decision involved a choice as to the way forward to be taken in the making of the first decision." The "first decision" was the Minister's determination pursuant to par 3.1.1(b) that neither an EIS nor a PER was required in regard to a proposal to adopt a plan for Sydney (Kingsford Smith) Airport aimed at putting in place procedures for the more equitable sharing of noise generated by the Airport. Finn J's observations are apposite to the present case. The decision not to hold an inquiry under s 11, but instead to assess the environmental impact of the proposal in a different manner under the Procedures, was a choice between the options available to the Environment Minister so that, if so advised, he could in due course make recommendations or comments to the Resources Minister. 26 For the applicant reliance was placed on Botany Bay City Council v Minister for Transport (unreported, 30 November 1998) in which, without argument, jurisdiction was assumed in relation to a determination by the Environment Minister under par 3.1.1(b) of the Procedures that neither an EIS nor a PER was required in regard to a proposal to adopt a long‑term operating plan for Sydney (Kingsford Smith) Airport. The fact that jurisdiction was not challenged makes the case of little assistance. But in any event, par 3.1.1(b) is quite unlike s 11. The former requires the Department to refer to the Minister the question whether there is to be an EIS or a PER in relation to the proposed action, and requires the Minister to "forthwith determine the question and … make a direction accordingly". The paragraph poses a distinct question for the Environment Minister and requires an answer. It may well be that in those circumstances the determination was as an "intermediate decision", since par 3.1.1(b) provides for a ruling on the question referred. 27 The applicant then sought to review the action of the Environment Minister as "conduct" engaged in either for the purpose of making a decision under par 9.3.1 of the Procedures or for the purpose of making a decision whether to grant an export licence under reg 11 of the Regulations. By letter of 25 August 1998 the Environment Minister wrote to the Resources Minister as follows: "In accordance with paragraph 9.3.1. of the Administrative Procedures under the EPIP Act, I now provide the following recommendations in relation to the JMA and the taking of Commonwealth actions (including export approval decisions) in relation to the JMA. I am advised that, provided these recommendations are complied with, the proposal to mine uranium ore at Jabiluka could proceed with no significant threat to the environment and world heritage values of Kakadu National Park." Then follow four recommendations, the first of which is that the "milling of uranium ore at Jabiluka will be environmentally acceptable if 100% of the tailings are placed back underground in the mine void and the recommendations in Attachment A are complied with". The attachment contains 15 recommendations. In reliance on s 3(3) of the ADJR Act the applicant contended that the Environment Minister's recommendations amounted to a reviewable decision. The Environment Minister's action was not otherwise claimed to be a reviewable decision. 28 Section 3(3) provides that "Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision." In Ross v Costigan (1982) 41 ALR 319 at 332 Ellicott J expressed the view that s 3(3) contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that or some other enactment. His Honour's view was approved by Northrop and Lockhart JJ in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70. See also Steiner v Attorney‑General (Cth) (1983) 52 ALR 148. 29 Counsel for the applicant submitted that these decisions put an unjustified gloss upon s 3(3). The sub‑section does not use the words "condition precedent", and it was said that to substitute them for the words of the sub‑section is unwarranted. In view of the comments in Edelsten, it is not for me to form my own view about the propriety of describing the report or recommendation as a "condition precedent". But even if one avoids that expression, s 3(3) does not assist the applicant. The provision plainly deals with the case where an enactment requires that a report or recommendation be made before a decision is made. See Lloyd v Costigan (1983) 48 ALR 241 at 248 per Toohey J. Paragraph 9.3.1 does not require the Environment Minister to make a recommendation before the Resources Minister can make a decision. The context shows that the word "shall" is directed to the time within which any comments etc must be made, and does not require the making of comments etc. See the words "any comments … that the Minister thinks necessary or desirable", and the opening words of par 9.3.2. Further, the phrase "any comments, suggestions or recommendations" denies an obligation to make a recommendation. Accordingly, the Environment Minister's recommendations to the Resources Minister did not amount to a "decision" for the purposes of s 6 of the ADJR Act, and conduct engaged in for the purpose of making the recommendations is not reviewable. The decision whether to grant an export licence is for the Resources Minister. The conduct relied on is that of the Environment Minister. For the reasons I have given, the conduct that is reviewable under s 6 is that of the decision‑maker, and includes the conduct of officers whose actions have been authorised or adopted by the decision‑maker. The conduct of a Minister that has been engaged in for the purpose of the making of a decision by another Minister is not reviewable under s 6. The case was argued on the unexpressed assumption that the Resources Minister was an authorised person for the purposes of s 11 of the Regulations. Environment Minister's request of Unisearch 30 On 5 August 1998 the Minister informed his Department that an independent review should be conducted of the tailings management issues in relation to which scientific uncertainty had been identified. The Department engaged Unisearch to conduct the review. The evidence does not disclose a request by the Department that Unisearch provide a report, though the contract with Unisearch is in evidence. I am prepared to infer that the contract was preceded by a request that Unisearch undertake the work. The request is sought to be reviewed as conduct pursuant to s 8 of the EPIP Act or pursuant to par 9.2 of the Procedures. It was submitted that the conduct was preparatory to the making of a decision by the Environment Minister under par 9.3.1 or by the Resources Minister under reg 11 of the Regulations. 31 Paragraph 9.2 of the Procedures empowers the Minister, within 21 days after receipt of a PER, to require the proponent to provide further information necessary for the purpose of examining the PER. The request that Unisearch provide a report was not made under this paragraph. Section 8(b) requires the Minister to ensure that a PER is taken into account, in matters to which it relates, in the Department. The Minister's request of Unisearch was not of this character. Section 8(a) requires the Minister to ensure that the Procedures are given effect to in and in connection with matters dealt with by his Department. On the assumption that the request of Unisearch was something done by the Minister to ensure that the Procedures were given effect to in the Department, it was not done for the purpose of making a reviewable decision. For the reasons I have given under the previous heading, s 3(3) of the ADJR Act does not deem the Environment Minister's recommendations to be a reviewable decision. A decision under reg 11 is not that of the Environment Minister, and accordingly conduct by that Minister that has been engaged in for the purpose of the making of a decision by another Minister is not reviewable. Environment Minister's receipt of further information 32 On 11 August 1998 ERA wrote to the Environment Minister enclosing a paper entitled "A Synopsis of Key Issues and Processes". This was shortly after the Environment Minister had commissioned Unisearch to carry out an independent review. ERA's paper was supplied "to assist this review". In the Environment Minister's letter to the Resources Minister of 25 August he noted that ERA had supplied its Synopsis in which it identified an option of returning all tailings underground to the mine void. He said that his Department had advised that this option would avoid the uncertainties associated with ERA's preferred option. He then said that so long as his recommendations were complied with, the proposal to mill at Jabiluka could proceed with no significant threat to the Park. The first of the recommendations was that 100% of the tailings be placed back underground in the mine void. 33 For the applicant it was contended that the Environment Minister's acceptance of the Synopsis was "conduct" under s 6, in that it was a procedure adopted in relation to the Environment Minister's decision under s 8 in combination with par 9.3.1 of the Procedures and the decision of the Resources Minister under reg 11. Reliance was placed on s 3(5) of the ADJR Act. It was submitted that the Environment Minister's acceptance of the Synopsis amounted to the taking of evidence. I need not decide whether it did, because the receipt of the Synopsis was in my view "the doing of an act or thing preparatory to" the Environment Minister's recommendations to the Resources Minister of 25 August. However, for the reasons I have given, s 3(3) of the ADJR Act does not deem the recommendations to be a reviewable decision. When it is made, the decision of the Resources Minister under reg 11 will be a final decision. But the conduct engaged in by the Environment Minister for the purpose of the making of a decision by the Resources Minister is not reviewable.

Environment Minister's recommendations of 25 August 1998 34 The applicant seeks to review the Environment Minister's "advice" to the Resources Minister that provided the recommendations in the former's letter of 25 August 1998 were complied with, the proposal could proceed with no significant threat to the Park. She also seeks to review the making of the 15 recommendations. The Environment Minister made the comments and recommendations set out in the letter pursuant to par 9.3.1 of the Procedures. As I have already said, s 3(3) of the ADJR Act does not deem the recommendations to be a reviewable decision. The applicant did not otherwise seek to characterise the Environment Minister's action as a reviewable decision. 35 In the alternative, it was contended that the giving of the advice and making of the recommendations was conduct engaged in by the Environment Minister for the purpose of the making of a decision by the Resources Minister whether to grant export approval for Jabiluka ore. For the reasons I have given, the "conduct" to which s 6 refers is the conduct of the decision‑maker. Here the conduct is that of the Environment Minister and the decision‑maker is the Resources Minister.

Resources Minister's acceptance of Environment Minister's recommendations 36 In his letter to ERA of 27 August 1998 the Resources Minister said: "I am writing to advise you of the outcome of my 22 April 1998 designation of Energy Resources of Australia Ltd (ERA) under the Environment Protection (Impact of Proposals) Act 1974 … as the proponent for the prospective development of the Jabiluka Mill Alternative …. The Minister for the Environment provided his recommendations on the JMA to me on 25 August 1998 …. … I have no reason to disagree with the intent of any of the Minister for the Environment's recommendations and have developed requirements for your company accordingly. These are requirements 1 to 16 set out in the Attachment to this letter. Once ERA has met the requirements identified in this document, I will be in a position to consider the issue of an export permit for uranium concentrate produced from the Jabiluka Mill Alternative. … I note in conclusion that both options to mill Jabiluka ore at the Jabiluka mine or to mill the ore at existing facilities at Ranger have now received Commonwealth environmental approval subject to ERA satisfying requirements specified for the respective options." Requirements 1 to 16 of the 17 requirements set out in the Attachment are the 15 recommendations in the Attachment to the Environment Minister's letter and two of the recommendations contained in that letter (the latter recommendations becoming one requirement). 37 Although the way in which the application describes the matter for review, namely the Resources Minister's acceptance of the Environment Minister's advice and recommendations, and the imposition of the 16 requirements, is not suggestive of a final decision, the Resources Minister's letter was in my view a substantive determination of ERA's ability to mill uranium at Jabiluka. The letter advises ERA of the "outcome" of its designation as proponent under the EPIP Act, and concludes by stating that ERA has now received Commonwealth environment approval subject to satisfaction of the requirements. The determination was made under s 8 of the EPIP Act. The Minister observed the requirements of s 8. He took into account the Environment Minister's recommendations, and acted on them by announcing the outcome of his designation, namely that ERA had obtained Commonwealth environmental approval. The fact that the approval was subject to conditions does not deprive it of the quality of finality. 38 In the alternative it was argued that what the Resources Minister had done amounted to the making of a final decision because it was determinative of a significant aspect of the ultimate decision to be made under reg 11, namely whether to grant export permits. It was said that the Resources Minister had substantively determined that ERA had satisfied him about the environmental impact and effect of exporting Jabiluka ore. It was contended that the reg 11 decision‑making process had already begun. As I understood the argument, it was that since a permit under reg 11 could not be issued unless the Environment Minister had made a determination under par 9.3.1 of the Procedures, the decision‑making process under reg 11 started when the Environment Minister began to consider whether to make suggestions or recommendations to the Resources Minister under that paragraph. I do not accept this submission. The decision‑making process under reg 11 does not, in my view, begin until an applicant applies for a permit. In Aboriginal Land Council at 381 Hill J, referring to the decision of Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516, said: "His Honour was clearly right to conclude that the grant of "in principle approval" in respect of periods for which applications had not yet been made, could not constitute conduct engaged in for the purpose of making a decision. The reason why his Honour is right is that the Minister had not yet embarked upon any decision‑making process, for there had not as yet even been any application in respect of the subsequent years. Thus, there was no identifiable decision to which the conduct could relate. It seems to me quite clear that an act could only constitute conduct engaged in for the purpose of making a decision, if there can be identified a decision to be made." 39 In support of its submission that the decision‑making process had begun, the applicant contended that approval in principle had been given to export contracts between ERA and purchasers. Reliance was placed on a departmental minute to the Resources Minister of 25 August 1998 recommending that certain contracts be taken to "form an acceptable basis for export approval for Jabiluka sourced uranium". The purpose of the minute was to clarify to ERA the position regarding supply of Jabiluka uranium under certain previously approved contracts. The minute recommended that the Resources Minister agree that the contracts listed "form an acceptable basis for export approval for Jabiluka sourced uranium". But the minute contained this passage: "It is important to note that you are not being requested to consider the issue of an export permit for uranium sourced from Jabiluka. This will not arise until after Jabiluka is developed." The Resources Minister accepted the recommendations, and on the same day wrote to ERA as follows: "As you are aware, export approval for uranium is granted on a shipment by shipment basis. I would not, therefore, anticipate your company seeking approvals to export Jabiluka sourced uranium until after the project is developed. The granting or refusal of approvals will be a matter for consideration at the time with respect to the satisfactory prior completion of all the necessary environmental processes and issue of the necessary Commonwealth and Northern Territory Government approvals and any other matters relevant to the exercise of my discretion at that time. As with all uranium shipments, approvals would also be subject to prior confirmation by the Australian Safeguards Office and Department of Foreign Affairs and Trade that shipments met all safeguard requirements. Acknowledging the above considerations, I am pleased to advise that these contracts form an acceptable basis for export approval, and in particular that the contracts comply with current nuclear safeguard obligations." It was common ground that it was "morally certain" that export permits would be sought by ERA when it had satisfied all relevant requirements and the Jabiluka project had been developed. But that does not establish that the decision‑making process had in fact commenced. I find that as at 25 August 1998 it had not commenced. 40 The applicant submitted that what the Resources Minister did on 27 August was conduct preparatory to the making of a decision whether to grant or refuse an export permit in the future. It was common ground that in order for conduct to be "for the purpose of making a decision to which this Act applies" the decision‑making process must have commenced. See the Aboriginal Land Case at 381. For the reasons I have given, the reg 11 decision‑making process had not commenced as at 27 August, and accordingly what the Resources Minister did was not preparatory to the making of a reviewable decision.

CONCLUSION 41 The objection to competency succeeds in relation to all "matters" sought to be reviewed other than the Resources Minister's acceptance of the Environment Minister's recommendations. Only a small part of the hearing time was devoted to the issue upon which the applicant has been successful. Further, the application also sought review of four other "matters", but these were abandoned at the hearing. In all the circumstances, the applicant should pay two thirds of the respondents' costs. I certify that the preceding forty‑one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicant: K H Bell QC and D S Mortimer

Solicitors for the Applicant: Howie & Maher

Counsel for the First and Second Respondents: B Walker SC and S Gageler

Solicitor for the First and Second Respondents: Australian Government Solicitor

Counsel for the Third Respondent: J Karkar QC, N Mukhtar and R S Hay

Solicitors for the Third Respondent: Freehill Hollingdale & Page

Date of Hearing: 22 April 1999