Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts

REASONS FOR JUDGMENT BUCHANAN J: 1 This judgment deals with an interlocutory motion for discovery and other orders, which has been brought during the course of final submissions. The proceedings in which the motion is brought involve a challenge by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act'), to a decision by the then Minister for the Environment and Water Resources ('the Minister'). The proceedings commenced before me in Perth on 5 February 2008 and continued on the following day. By the time they were adjourned, the applicant had put the whole of its argument in chief and counsel for the respondent had made substantial progress in her submissions. The proceedings were then adjourned to 26 March 2008 in the expectation that they will conclude on that day. 2 The effect of the Minister's decision was to refuse to permit extended phosphate mining operations by the applicant on Christmas Island. The decision that was made had effect for ss 16 and 17B, 18 and 18A, 20 and 20A, 23 and 24A and 26 and 27A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the Act'). The decision was made on 27 April 2007. On 14 June 2007, the Minister provided a statement of his reasons to the applicant. Those reasons provided an explanation for the decision not to approve the taking of the proposed action for the purposes of ss 18 and 18A, 20 and 20A and 26 and 27A of the Act. It is now accepted that they did not provide any explanation of, or justification for, refusal for the purposes of sections 16 and 17B or 23 and 24A of the Act. 3 During his submissions in chief, counsel for the applicant drew attention to the lack of justification for so much of the Minister's decision as concerned ss 16 and 17B and 23 and 24A of the Act although he accepted that extended phosphate mining on Christmas Island, as sought by the applicant, could not proceed if the Minister refused permission for any of the other three purposes to which the decision and the statement of reasons referred. 4 During her submissions on 6 February 2008, senior counsel for the Minister accepted that the Minister's decision could not be sustained so far as it refused approval for the purposes of sections 16 and 17B and 23 and 24A of the Act. That concession revealed an unsatisfactory circumstance, namely that the admitted error in, and lack of support for, the Minister's decision had not been formally addressed by correction of the decision prior to the concession being made. I remain of the view, then expressed, that it would have been much more desirable if the position had been speedily addressed when the error, which is now admitted, was realised. At the latest, that must have been when the statement of the Minister's reasons was prepared in June last year. However, that is not the matter which now requires attention. 5 Following adjournment of the proceedings, the applicant on 5 March 2008, almost one month after the error was publicly admitted, filed a notice of motion seeking discovery of any departmental brief delivered to the then Minister between 28 April 2007 and 14 June 2007 and any draft statement of reasons relating to the statement of reasons delivered to the applicant on 14 June 2007, as well as a statement in writing giving reasons for the decision that the refusal had affect for ss 16 and 17B and 23 and 24A of the Act. The notice of motion was supported by an affidavit which explained that the purpose for which the additional material was sought was so that the applicant and the Court might be fully informed about what the Minister's reasons were at the time he made his decision and whether the statement of reasons provided to the applicant was the product of consideration of relevant materials after the decision was made and after the applicant had requested a statement of reasons for the decision. 6 The notice of motion seeks the following orders: '1 Within 7 days the Respondent shall give discovery by list verified by affidavit of any documents that comprise a Departmental brief delivered to the Respondent's predecessor the Hon Minister for the Environment and Water Resources between 28 April 2007 and 14 June 2007 and any draft statement of reasons relating to the statement of reasons delivered to the Applicant on 14 June 2007. 2 Within 14 days the Respondent shall make available for inspection by the Applicant any document contained in a list of discovered documents in the affidavit filed and served pursuant to order 1. 3 Within 14 days the Respondent do furnish to the Applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision made on 27 April 2007 that the refusal of the respondent's predecessor the Hon Minister for the Environment and Water Resources had effect for sections 16 and 17B of the Environment Protection and Biodiversity conservation Act 1999(Cth) (Wetlands of International Importance) and sections 23 and 24A of that Act (Commonwealth Marine Areas).' 7 The application for discovery and inspection, which is contained within proposed orders 1 and 2, depends largely on a suggestion that the Minister may not have paid any regard to an environmental impact statement which he was required to consider under the Act. Exhibit 7 in the proceedings contains a brief provided to the Minister on 2 February 2007. That brief recommended to the Minister, amongst other things, that he consider his legal obligations for decision making as set out in an attachment, marked A, that he propose to refuse approval for the operations sought by the applicant and that he advise certain Ministerial colleagues of that proposal and seek their response. Attachment A drew the Minister's attention to mandatory considerations, with respect to the decision which he would be required to take, and factors which he should take into account in that respect. His attention was drawn expressly in more than one place to an attachment G which contained the environmental impact statement in question. 8 In my view there has been no basis established, certainly not at this late state of the proceedings, for allowing the applicant to attempt to go behind the clear statements which are contained in the departmental brief. I do not see how, in any event, the errors which are now revealed concerning the provisions unnecessarily and incorrectly referred to in the decision made on 27 April 2007, bear upon the application for discovery. I am not prepared to order the discovery and inspection which is sought. 9 The third order sought is for a supplementary statement of reasons. Section 13 (7) of the AD(JR) Act provides as follows. '(7) If the Federal Court or the Federal Magistrates Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuant of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.' 10 In one sense, the statement of reasons provided by the Minister dated 14 June 2007 fails to provide an explanation for the inclusion in the decision of matters now conceded to be without adequate foundation. However, the full context of the decision must be appreciated in order to examine the possible significance of that circumstance. The decision reads: 'Pursuant to section 133 of the Environment Protection and Biodiversity Conservation Act 1999, I, MALCOLM BLIGH TURNBULL, Minister for the Department of the Environment and Water Resources, refuse approval for the taking of the following action: The proposed action to undertake surface mining, transport and off-site processing of phosphate at nine (9) sites on Christmas Island, Indian Ocean Territory, and associated rehabilitation activities, construction and infrastructure works, and operational activities (EPBC 2001/487). The action was proposed to be undertaken by Phosphate Resources Ltd. This refusal for approval has effect for: Section 16 and 17B (Wetlands of international importance) of the Environment Protection and Biodiversity Conservation Act 1999 Sections 18 and 18A (Listed threatened species and ecological communities) of the Environment Protection and Biodiversity Conservation Act 1999 Sections 20 and 20A (Listed migratory species) of the Environment Protection and Biodiversity Conservation Act 1999 Sections 23 and 24A (Commonwealth Marine Area) of the Environment Protection and Biodiversity Conservation Act 1999 Sections 26 and 27A (Protection of the environment from actions involving Commonwealth land) of the Environment Protection and Biodiversity Conservation Act 1999.' 11 The matters upon which reliance is now placed, namely the statement of the provisions for which the refusal for approval has effect, do not affect the nature of the decision itself to refuse approval for the proposed action, or the ultimate statutory consequences for the applicant which flow from the three remaining sets of controlling provisions which the Minister relied upon in his statement of reasons. 12 Another complicating factor is that the then Minister, Mr Turnbull, no longer discharges the responsibilities of that office. That would not prevent an appropriate order being made requiring the provision of supplementary reasons due to the operation of s 17 of the AD(JR) Act, which contemplates a change in the Minister administering an enactment under consideration. However, it follows necessarily that any statement of reasons provided upon advice from the current Minister's staff would be unlikely to touch very directly upon matters which were in any sense independently in the mind of the previous Minister. 13 I have considered whether, in the not altogether satisfactory circumstances which provide the foundation for the present notice of motion, I would require the provision of supplementary reasons for the decision but I have decided that such a course would have no real utility. The Minister relies upon the statement of reasons provided on 14 June 2007. It is accepted that those reasons do not sustain the decision for the purposes of ss 16 and 17B and 23 and 24A of the Act. It is accepted that, to that extent at least, the decision must in one way or another, be set aside. However, no challenge to the decision will provide a useful outcome for the applicant unless it is set aside in its entirety. In my view it would be an unnecessary distraction from the task of examining so much of the decision as is relied upon and said to be justified by the statement of reasons, to examine matters which are peripheral to the issues which remain for consideration. 14 The notice of motion will be dismissed. In the circumstances, the applicant should pay the respondent's costs associated with the notice of motion. I make the following order: 15 The notice of motion is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.