7.2 Disposition of Issue 1
59 In my view, the respondents' construction of s 4 of the RFA Act must be accepted. Properly construed, Condition (a) of the definition of an RFA does not impose any requirement to have regard to new "assessments" of the specified matters relevant to the region(s) in circumstances where an RFA is being amended by way of an extension, substantial or otherwise, to its duration in order that the agreement continue to meet the definition of an RFA.
60 First, in terms of the general approach to construction, I note that this issue focuses on what is described in the legislation as a "definition". In this regard, it is generally accepted that "a legislative definition should not be framed as a substantive enactment": Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [51] (Perry and Stewart JJ), citing Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 (Barwick CJ, McTiernan and Taylor JJ). However, a statutory definition may, upon its proper construction, impose substantive requirements or criteria. As Pearce explains, "Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb's case": Pearce D, Statutory Interpretation in Australia at [6.14]; see also Herzfeld P and Prince T, Interpretation at [3.10].
61 Despite being described as a definition, the so-called definition of an "RFA" in s 4 is an example in point. It plainly has a substantive operation because it prescribes "conditions" (i.e. substantive criteria) with which an agreement must comply in order to be an RFA for the purposes of the RFA Act and thereby attract the prescribed statutory consequences: see, e.g., by analogy, San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492 at [52] (Campbell JA, Beazley and Ipp JJA agreeing); ACCC v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [113]-[114] (the Court); and Vincentia at [50]-[51]. As in Vincentia, to so construe the definition in issue here best gives effect to the purpose of the RFA Act and does not give rise to the kinds of difficulties which might arise where a so-called definition applies potentially to a number of different statutory provisions: see by analogy Rumble at [55]; and Yazaki Corporation at [113]-[114] (the Court). Nonetheless, it is convenient, given the location of the "definition" of RFA in s 4 headed "Definition", to refer to it as such.
62 Secondly, applying the principles explained above, the task of construction must commence and end with a consideration of the statutory text: see also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (the Court). In this case, paragraph (a) of the statutory definition expressly requires that the agreement only be "entered into" having regard to assessments of the matters specified in subparagraphs (i) to (v). In its natural and ordinary meaning, those words are apt only to cover the execution of an RFA; they are not apt to encompass variations or amendments to an existing RFA, including extensions to the term of the intergovernmental agreement. As such, bearing in mind that the text of the provision is the surest guide to its purpose, the evident purpose of paragraph (a) is to require that regard be had to assessments of specified values and principles in order to inform the decision as to whether an intergovernmental agreement intended to be an RFA should be "entered into".
63 Thirdly, that Parliament intended to distinguish between entering into an RFA and amending an RFA is supported by s 10 of the RFA Act. That section relevantly provides that:
(1) The Minister must cause a copy of an RFA to be tabled in each House of the Parliament within 15 sitting days of that House after:
(a) the commencement of this section; or
(b) the RFA is entered into;
whichever is later.
…
(3) The Minister must cause a copy of an amendment of an RFA to be tabled in each House of the Parliament within 15 sitting days of that House after:
(a) the commencement of this section; or
(b) the amendment is made;
whichever is later
(Emphasis added.)
64 Hence, s 10 distinguishes between "enter[ing] into" an RFA, on the one hand, under s 10(1)(b), and the "mak[ing]" of "an amendment" to an RFA, on the other hand, under s 10(3)(b)). That distinction, in turn, accords with the ordinary meaning of entering into an agreement as distinct from subsequent amendments to that agreement.
65 Furthermore, that Parliament intended the phrase "entered into" an RFA in Condition (a) of the definition of an RFA and in s 10(1) to bear the same meaning is apparent from the relationship between the two provisions. Specifically, once an RFA is "entered into" in accordance with Condition (a), the obligation in s 10(1), as opposed to s 10(3), is triggered. By contrast, where an amendment is made to an agreement, it is the obligation in s 10(3) which is enlivened. That relationship between the conditions for entering an RFA Agreement and the obligation in s 10(1) militates, in my view, a consistent construction of words "entered into" in both provisions. This approach accords with the principles of statutory construction requiring that the meaning of a provision must be determined by reference to the language of the instrument as a whole and on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky at [69]-[70]. The applicant's construction, however, would create a conflict between Condition (a) of the definition of an RFA on the one hand, and the operation of ss 10(1) and (3), on the other hand, despite their obvious interrelationship.
66 Understood in this light, with respect, the applicant asks the Court to "make an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'": Taylor v Owners - Strata Plan No 1564 [2014] HCA 9; 253 CLR 531 at [38] (French CJ, Crennan and Bell JJ). As the second respondent submits:
Neither the text nor the context of s 4 of the RFA Act should be construed as providing that [as the applicant submits]:
an RFA that was in force when the RFA Act was enacted ceases to be an RFA for the purposes of the Act after expiry of the original terms of the RFA, unless any agreement that materially extends the term of the RFA (or alternatively extends the term by at least 20 years and potentially in perpetuity) was entered into having regard to assessments of the matters identified in paragraph (a) of the definition that are relevant to the region or regions.
(Second Respondent's Written Submissions (R2S) at [2].)
67 There is nothing in the text of the RFA Act to suggest that the Parliament intended to impose any requirement for new "assessments" to be undertaken in order for an RFA to remain an RFA for the purposes of the Act where it is proposed to extend the term of the RFA or otherwise to amend it. Had the Parliament intended to impose any such limitations, it would have been a simple matter for it to have so provided expressly.
68 Fourthly, the applicant placed considerable weight on extrinsic materials, and the purpose of the RFA, as supporting its construction. The following two contextual features, in particular, were said to support the applicant's construction:
(1) the legislation was enacted with an expectation that assessments would cover a twenty-year period only; and
(2) the legislation was designed to ensure that RFAs were based on comprehensive assessments of the particular regions in question.
69 However, with respect, those extrinsic considerations provide no warrant for departing from the language actually used in the provision.
70 With respect to the first point, it is true that the secondary materials refer to the ordinary duration of RFA Agreements being twenty years. Hence, the Explanatory Memorandum to the RFA Bill described the RFAs as having "a 20-year life", and they were said to have delivered "20-year certainty in resource supply": at p 2; see also pp 3 and 6. Those references reflect the original lifespan of the ten RFAs in existence when the RFA Act was enacted, all of which were said to "remain in force for 20 years": see, e.g., NE RFA clauses 6 and 40.
71 However, those extrinsic materials do not necessarily support the applicant's construction. As the respondents submit, whilst the NE RFA had an initial lifespan of 20 years, clause 8 of the NE RFA expressly envisaged that the RFA could be amended with the written consent of the parties and, in particular, provided in clause 6 that the parties were to determine the process for extending the agreement for a further period as part of the third five yearly review. While the Eden and Southern RFAs were not in evidence before me, the clear inference from the materials before the Minister, including the Assessment Report, is that each of these RFAs included essentially the same mechanisms for amendments to be made them, including extensions to their term.
72 In line with this, in enacting the RFA Act, the Parliament recognised in s 10(3) of the RFA Act that RFAs could be amended, but did not expressly limit the amendments which could be made (save for certain express limits imposed on the Commonwealth concerning compensation in s 8 of the RFA Act, and also by implication that the amendments could not have the consequence that the amended agreement no longer met the definition of an RFA in s 4 of the RFA Act). In particular, the RFA Act did not make it a condition that an RFA be in force for a specified or maximum duration only; nor did it otherwise exclude amendments to the duration of an RFA. To the contrary, the capacity to extend the agreements is consistent with and promotes the purpose of the RFA Act in reinforcing the long-term certainty which the RFAs were intended to provide for forestry management in the RFA regions as against a historical background of conflict between industry and environmental and conservation interests. The absence of any constraints on the capacity to amend and extend such agreements, therefore, must be taken to manifest the purpose of the Act: Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] (French CJ and Hayne J).
73 This is particularly so given that the RFA Act is concerned with attaching certain legal consequences to intergovernmental agreements which may and do contain unenforceable obligations, and are intended to further the broadly expressed objectives stated in paragraphs (b), (c) and (d) of the RFA definition. The balancing of those objectives must occur, furthermore, having regard to the potentially conflicting, broadly expressed values in paragraph (a). In that sense, the RFAs of their nature represent a compromise or balancing of the competing interests of conservation and the environment on the one hand, and "forest and forest products industry operators and their workforces [and] recreational forest users" on the other hand, regarding the use, management and conservation of forests and forest resources: Explanatory Memorandum at 4.
74 Those contextual matters render highly unlikely any implied intention by the Parliament to fetter the means by which the Commonwealth and other federal entities might seek to resolve the potentially conflicting values and interests over time through the negotiation of amendments to existing RFAs. In line with this view, the Full Court in Bob Brown Foundation held at [49] that:
As paras (a) to (e) of the definition of "RFA" indicate, an RFA is concerned with matters of environmental and economic policy. While such matters could be the subject of legally enforceable obligations, they could also be (and perhaps would more readily be) matters of a political nature, often involving compromise between competing policy considerations and interests, not intended to be the subject of adjudication by the courts.
75 Similarly, in endorsing the NF Policy Statement, the Commonwealth, State and Territory governments stated that they committed their respective governments "to implement, as a matter of priority, the policies in it for the benefit of present and future generations of Australians". However, at the same time they acknowledged that "implementation of policies requiring funding will be subject to budgetary priorities and constraints in individual jurisdictions".
76 Furthermore, as the Full Court accepted in Bob Brown Foundation at [52], the NF Policy Statement was also cognisant of the likely need to accommodate future changes in forest management and the need for adaptive processes, stating that:
Managing Australia's forests in a sustainable manner calls for policies, by both governments and landowners, that can be adapted to accommodate change. Pressures for change may result from new information about forest ecology and community attitudes, new management strategies and techniques (such as those that incorporate land care and integrated catchment management principles), and new commercial and non-commercial opportunities for forest use. These pressures may affect the forests themselves.
77 In short, therefore, as the Full Court in Bob Brown Foundation at [53] held:
Consideration of the [National Forest Policy Statement] assists with understanding that an RFA, as referred to in the RFA Act, is likely to contain provisions which "essentially depend on matters of principle or policy into which obviously financial and economic considerations must enter" (South Australia v Commonwealth (1962) 108 CLR 130], per Dixon CJ at 147) and that the legislative scheme contemplates the revision and development of codes of practice and management plans as knowledge changes.
78 These contextual considerations lend strong support to the view that the Parliament intended to leave open the possibility that the Commonwealth and State or Territory parties to an RFA could negotiate amendments to existing RFAs, including to extend their duration, without imposing constraints upon that process, save relevantly that an RFA must continue to meet the definition of an RFA. The fact that the RFAs were originally negotiated on the basis that they would endure for a period of 20 years, subject to agreed extensions, affords in my view no basis for inferring that the Parliament intended to fetter the process by which they might be extended.
79 Similar issues affect the applicant's reliance on the second contextual factor, namely, that the legislation was designed to ensure that RFAs were based on comprehensive assessments of the particular regions in question. As the applicant submits, the purpose of paragraph (a) of the definition of RFA in s 4 is plainly to ensure that a decision of government parties to enter into an RFA is made on an informed basis insofar as the necessary assessments must address the values and principles specified in paragraph (a). However, that does not provide any support for effectively reading into the text a requirement for such assessments to be undertaken again, in whole or in part, where it is proposed materially to extend the duration of an RFA or otherwise to amend it. Instead the implication is that the Parliament left it to the government parties to decide what assessments, if any, might be undertaken before agreeing to amend an RFA.
80 In the fifth place, the applicant contends that the effect of construing the term "entered into" according to its ordinary meaning would be to give precedence to form over substance, because it would open the possibility that the government parties could avoid undertaking new assessments if the form of a change is to extend an existing RFA, rather than entering a new RFA altogether. That submission should not be accepted.
81 It is clear that if an RFA were amended so that it no longer met the conditions in the statutory definition of an RFA, it would no longer constitute an RFA for the purposes of the RFA Act. Approvals for forestry actions impacting on matters of national environmental significance would therefore have to be obtained in accordance with the EPBC Act and relevant export control laws. Furthermore, while it is unnecessary to decide the issue, an argument might be made that the amendments to an RFA are so extensive that, as a matter of substance, the agreement is plainly a new RFA. However, that was not the contention put in this case, and indeed the applicant expressly disavowed the making of that case: T20.29-31.
82 Absent these possibilities, however, to recognise a distinction between entering an agreement and varying an agreement for the purposes of s 4 of the RFA Act does not prioritise form over substance but gives effect to Parliament's clear intention to impose conditions upon the entry into an RFA which it has not seen fit to impose when an RFA is amended.
83 Finally, the NE RFA and other RFAs in place when the RFA Act was enacted form part of the context against which the RFA Act falls to be construed. That is so given, as I have earlier explained, that the purpose of the RFA Act was to give effect to certain obligations of the Commonwealth under the RFAs and to preclude the Commonwealth from terminating an RFA otherwise than "in accordance with the termination provisions of the RFA": s 7 of the RFA Act. It is therefore significant that, for example, clause 6 of the NE RFA provides that "the process for extending the Agreement for a further period will be determined jointly by the parties as part of the third five-yearly review" (emphasis added). The fact therefore that the RFA Act did not require that any amendment to extend the duration of an RFA have regard to fresh assessments of the kind referred to in Condition (a) in order to continue to be an RFA for the purposes of the RFA Act therefore assumes significance. It can be assumed that the Parliament was aware of these terms, and the possibility that RFAs might be substantially extended, but intentionally chose not to impose limits on the government parties' ability to make those extensions.
84 For all of these reasons, the applicant's construction of the RFA Act must be rejected. Given that the applicant's case depended on its success on this first issue, this conclusion is sufficient to dispose of the application for declaratory relief. The remainder of these reasons address issues 2 and 3 on the alternative basis that the applicant correctly submits that an assessment was required.