"It is not unfair to counsel to remark that in the present case extreme positions have been taken up on the one side and the other. A claim that the report need not go beyond discussion of direct consequences referable to the immediate site of the proposed work stands in contrast to the argument advanced … that secondary and even indirect consequences must always be included. We do not accept either of these submissions in their unqualified form. Obviously there must be a real and sufficient link between the less direct effects likely to flow from projected works if they are to be regarded as relevant."
46 The applicant submitted that the Minister ought to have adopted a similar approach when he made the substantive decision under s 75. He accepted that there had to be "a real and sufficient link between the project referred and the secondary effect" (in this case, construction of the further road link) rather than a remote or fanciful connection. He submitted, however, that it was not permissible to do as the Minister had done, and simply treat all such effects as irrelevant.
47 The applicant further submitted that, in the present case, the necessary "real and sufficient link" had been provided by the finding of Gray J that construction of the Mitcham-Frankston Freeway would be "highly likely" to lead to construction of the Eastern Freeway-Greensborough link.
48 The applicant acknowledged that the Minister might well conclude that secondary effects carried less weight than primary effects. However, he submitted that secondary effects could not, for that reason, simply be disregarded.
49 Finally, the applicant called in aid the recent judgment of Kiefel J in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 ("Queensland Conservation Council"). That case concerned the extent of the inquiry necessary to be undertaken by the Minister of the impact which a proposed development or activity may have upon the Great Barrier Reef World Heritage Area.
50 A proposal to construct a dam on the Dawson River in Queensland had been referred to the Minister. The applicants, and others, expressed concern that a dam would enable cotton farming (which uses irrigation) to be undertaken. Chemicals used during the course of that farming might travel downstream, and flow into the World Heritage Area.
51 The Minister considered that s 75 of the EPBC Act only required him to consider the effects of the operation of the dam by the entity proposing its construction, and did not extend to consequences that might follow the decision by others to use chemicals. Kiefel J held that the necessary inquiry was a wider one than this, and that the Minister was therefore obliged to reconsider the matter.
52 It should be noted that, unlike the present case, the Minister's decision in Queensland Conservation Council was that the proposed action was a "controlled action" under s 75. He found that the construction and operation of the dam was likely to have a significant impact on certain listed threatened species, and on certain listed threatened ecological communities. However, he did not consider that there would be any significant impact upon heritage values in the Great Barrier Reef World Heritage Area. Accordingly, he did not nominate the controlling provisions of s 15A. It was the Minister's refusal to nominate those provisions that triggered the proceeding in that case.
53 Kiefel J noted that the Minister submitted that the ordinary and natural meaning of the phrase "all adverse impacts … the action … is likely to have" in s 75(2) was limited to the impacts that were likely to arise from the construction of the dam, and from its operation. The Minister submitted that it did not comprehend the impacts of activities undertaken by other persons as a result of their own decisions, such as those to use pesticides on crops grown on land irrigated with water released from the dam. In short, the Minister contended that the phrase did not comprehend environmental consequences arising from decisions to engage in activities that may have adverse impacts upon the environment when those activities are neither proposed by the development under consideration and its operation, nor form an inherent or inextricable part of them.
54 After referring to the decision of the New Zealand Court of Appeal in Environmental Defence Society, and also to various United States authorities, her Honour considered three Australian cases: Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 per Cripps J; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 per Sackville J; and Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 per Davies J. Her Honour said at [31]:
"These cases strongly suggest that the question whether there are likely to be significant effects upon the environment requires a wide consideration of the consequences which will follow if a proposed activity proceeds. The question for the Environment Minister under the EPBC Act is to the same effect. In considering whether an action is 'controlled' by a provision of Part 3 the Environment Minister is to determine whether the proposed action is likely to have a 'significant impact' on an area or species. One would think that when the EPBC Act was prepared it would have been known that an enquiry as to any likely significant effects of an action had been regarded by the courts as one requiring a full examination." (emphasis added)
55 Her Honour then rejected the Minister's submission that the legislative precursor to the EPBC Act, namely the Environment Protection (Impact of Proposals) Act 1974 (Cth), applied in a different statutory context, and was therefore likely to have had a wider operation. She referred to the Explanatory Memorandum to the EPBC Act, noting its suggestion that the Act had been framed in such a way as to overcome a particular difficulty, namely that the former Act had been triggered by approvals made by the Government, or governmental authorities. She said at [34]:
"…In my view, so far as concerns the question of the extent of the enquiry under s 75, little of consequence follows from the shift of focus under the EPBC Act to a person's intended activity. The objects of the two statutes remain the same. In legislation of this kind the requirements of a provision such as s 75 fall to be determined by reference to the purposes and policy of the Act: Environment Agency v Express Car Co (Abertilley) Ltd [1999] 2 AC 22 at 31E and 1H, and there is nothing to suggest that the considerations relevant to the enquiry whether there are effects which are significant and likely to occur will be different."
56 Her Honour continued at [36]-[41]:
"36. The Environment Minister submits that a wide approach, one which takes account of the actions of others, would impermissibly extend the liability of persons undertaking activities for offences under the EPBC Act. This contention did not form part of the Environment Minister's reasons but is advanced now in support of the construction of the subsection which he adopted. I understand it to be submitted that if the significant impacts, which form the ultimate enquiry under s 75, extend to those caused by others the same meaning must be attributed to the prohibition provisions. It would follow, in the Environment Minister's submission, that a person may be guilty of an offence for the decisions and actions of others and this could not have been intended.
37. The Environment Minister's submission assumes that a person has undertaken an action without referring the matter to the Minister, which is the very process under consideration. I accept that a person would be at risk of contravening the Act if they determined not to refer an action, save in the clearest possible cases. The legislation no doubt proceeds upon the assumption that persons will properly inform themselves as to the impacts their actions may have upon these aspects of the environment. Importantly, in my view, submissions for the Minister overlook the nature of the process engaged in when there is a referral to the Minister, as there was in the present case. It is one which will provide persons with protection from liability. If the Environment Minister considers that a proposed action will not have a significant impact upon an area or upon a species one might reasonably conclude that a proponent is safe from prosecution if they proceed. If the Environment Minister determines that it is a 'controlled action' assessments will be undertaken which will permit a decision as to whether to approve the action under Part 9. If it is not it will not proceed. If it is approved it is effectively exempt from the prohibitions. Rather than support a view of the enquiry under s 75 as narrow, this suggests a wider enquiry as necessary.
38. There are other indications in the EPBC Act which confirm that the enquiry undertaken by the Environment Minister is not a narrow one. The Environment Minister is to be provided with information and comment from Commonwealth and State Ministers having responsibilities which relate to the proposal. By this means information may be obtained about every effect a proposal might have. Consideration could be given to existing controls or regulations. The assessment to be undertaken of a proposed action may be very wide ranging. None of these indicate a focus narrowed to a direct and not an cumulative effect. The enquiry might extend properly to the 'whole, cumulated and continuing effect' of the activity of which Cripps J spoke in Kivi v New South Wales Forestry Commission.
39. The words used in s 75 and the process to be undertaken also support a wider enquiry than the Environment Minister undertook. In arriving at the ultimate conclusion, that an action is or is not a 'controlled action', one which is likely to have a significant impact on an area or species, the Environment Minister is first to consider 'all adverse impacts' the action is likely to have. This suggests that the widest possible consideration is to be given in the first place, limited only by considerations of the likelihood of it happening. By that means the Environment Minister will exclude from further consideration those possible impacts which lie in the realms of speculation. The Environment Minister would then determine whether they were significant. 'Likely' and 'significant' are sufficiently clear in their meaning. In any event there is no issue about their meaning in the present case.
40. That the Environment Minister's enquiry under s 75 is a wide one, is I consider, consistent with the high public policy apparent in the objects of the Act. No narrow approach should be taken to the interpretation of legislation having objects of this kind: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 515, 528, 537.
41. In my view the Environment Minister did not undertake the full enquiry required by s 75. The ground for review is made out. There will be declarations in terms of the orders sought in pars 1, 2 and 3 of the application."
57 Having completed his submissions regarding the substantive decision, the applicant turned to the question whether he required an extension of time in order to proceed with his challenge to that decision. His primary submission was that the statement of reasons provided by the Minister on 29 May 2002 did not disclose the true basis upon which the Minister made the substantive decision, and therefore did not comply with the requirements of s 13 of the ADJR Act. He claimed that, at the time he read the reasons, he had not appreciated that the Minister had disregarded his submission, and ignored the "secondary effects" that the proposed action would bring about. He further claimed that he did not discover that the Minister had approached this matter in this way until he received the Minister's letter dated 7 May 2003, informing him that the Minister had acted upon Mr Early's advice that "secondary effects" were irrelevant. He maintained that he had assumed, when he read the statement of reasons, that the Minister had given consideration to the "secondary effects", but had decided on the facts that the weight to be accorded to these effects did not warrant the conclusion that the proposed action was a controlled action.
58 It followed, so it was submitted, that the relevant reasons for the substantive decision were not provided until 7 May 2003, and that the present application, challenging the validity of that decision, had been brought within the 28-day time limit provided under the ADJR Act.
59 In the event that this submission was not accepted, the applicant submitted that time should be extended, pursuant to s 11(1)(c) of the ADJR Act. In support of that submission, he relied essentially upon the same matters as were advanced in support of his argument that time did not commence to run until 7 May 2003.
60 The applicant noted that the second respondent, in particular, opposed any extension of time. It relied upon the affidavit of Mr Sammut as demonstrating that it would suffer irremediable prejudice if time were enlarged. The applicant responded to that argument by submitting that the only prejudice that the second respondent had identified was the expense and inconvenience to it if the applicant were successful in requiring the Minister to reconsider the substantive decision. He contended that prejudice of this nature was not relevant, and that the only basis upon which prejudice could be taken into account was if it could be shown by one or other of the respondents that they would be disadvantaged, by reason of the delay, in presenting their case to the Court.
61 The applicant also argued that time should be extended because Gray J had found that the Minister had been "misled" by the original referral, and this finding, of itself, warranted a benevolent exercise of the Court's discretion.
62 As noted earlier, the applicant put forward a completely separate case in relation to what he described as the Minister's second decision. That decision was made on the basis of Mr Early's advice, as reflected in the Minister's letter of 7 May 2003. The applicant submitted that Gray J's finding that there was a "strong chance" that the Eastern Freeway-Greensborough link would be built amounted to "substantial new information" within the meaning of that expression in s 78(1). He therefore submitted that the Minister had erred in law in refusing to reconsider his substantive decision.