Phosphate Resources Limited v Turnbull, Minister for the Environment and Water Resources

REASONS FOR JUDGMENT ON DIRECTIONS AS TO CONDUCT OF APPLICATION 1 Phosphate Resources Limited (Phosphate) mines and exports phosphate from Christmas Island on mining leases held from the Commonwealth of Australia. The leases are said to cover phosphate reserves that may allow mining to continue for a further five years. On 27 April 2007 the Minister for Environment and Water Resources (the Minister) made a decision under s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) refusing approval for the proposed expansion by Phosphate of its mining activities. The expanded activities involved surface mining, transport and off-site processing of phosphate at nine locations on the Island. 2 It appears from the Minister's reasons for his decision that Phosphate's proposal was referred to the Department of the Environment and Water Resources on 1 November 2001 for a decision on whether it required assessment and approval under the EPBC Act. On 14 November 2001 a delegate of the Minister, acting under s 75, decided that the proposed action was a controlled action in relation to certain controlling provisions: . Sections 16 and 17B (Wetlands of international importance) . Sections 18 and 18A (Listed threatened species and communities) . Sections 20 and 20A (Listed migratory species) . Sections 23 and 24A (Marine environment) . Sections 26 and 27A (Protection of the environment from actions involving Commonwealth land) The next event was a decision by a delegate of the Minister on 21 December 2001 that the action should be assessed by environmental impact statement. A number of steps followed leading to the Minister's decision, on 27 April 2007, not to approve the taking of the action under s 133 of the EPBC Act. Phosphate was advised of the decision on 30 April 2007. 3 On 9 May 2007 the managing director of Phosphate wrote to the Minister seeking reasons for his decision. The Minister provided a Statement of Reasons for Decision under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by letter to the managing director dated 14 June 2007, which appears to have been received on 21 June 2007. 4 On 13 July 2007 Phosphate instituted proceedings against the Minister seeking an order for review of his decision under the ADJR Act. The application attached a copy of the Minister's Reasons for Decision. Filed with the application was a nine page statement of claim together with three annexures. 5 At a directions hearing on 9 August 2007 counsel for Phosphate sought directions that the application proceed on pleadings, rather than by affidavit and that the Minister give discovery. An order was made at the time that, by 31 August 2007, the Minister file and serve an indexed and paginated bundle of documents, being copies of the documents listed at [28] of his Statement of Reasons. Six volumes of documents were filed pursuant to that order. The parties were given liberty to file and serve short written submissions by 13 September 2007 on the further interlocutory directions they proposed. The matter was listed today for a ruling on those submissions and for further directions. The grounds of the application for review 6 Before turning to the interlocutory orders sought by the parties it is convenient to set out the grounds of review in the application. They are as follows: The decision involved errors of law 3.1 In making the decision the respondent erred in law in that he: 3.1.1 Failed correctly or at all to apply the statutory test of relevant impacts of the proposed action; 3.1.2 Failed to determine the extent and degree of significance of the impacts the action was likely to have on each of [sic] listed threatened species, listed migratory species, and the environment on Commonwealth land; 3.1.3 Failed to determine the extent to which the proposed action increased the risk of extinction (or reduced the prospects of survival) of a listed threatened species; 3.1.4 Made findings of fact that were not supported by evidence; 3.1.5 Failed to apply correctly the test of "precautionary principle" in that the respondent failed to make any finding on any matter that there was a relevant lack of full scientific certainty that, but for the application of the principle, would be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. An improper exercise of the power 3.2 In making the decision the respondent failed to take relevant considerations into account in the exercise of the power. 3.3 The respondent took irrelevant considerations into account in the exercise of the power. 3.4 The exercise of the power by the respondent was so unreasonable that no reasonable person could have so exercised the power or was otherwise an improper exercise of the power. Breach of the rules of natural justice 4 Breaches of the rules of natural justice occurred in connection with the making of the decision. The statement of claim 7 The statement of claim filed by Phosphate in these proceedings sets out a number of factual matters about the company, the status of the Minister, the referral of 1 November 2001 and the steps taken thereafter leading up to the decision of 27 April 2007. Many of these steps seem to replicate what is set out in the Minister's reasons for decision. 8 There are a number of paragraphs stating what are said to be the Minister's duties under the Act, followed by allegations that he erred in law ([15]), failed to take relevant considerations into account ([16]) and took into account irrelevant considerations ([17]). Wednesbury unreasonableness and breach of the rules of natural justice were raised ([18] and [19]). 9 Under the error of law ground it is said that the Minister made findings of fact not supported by evidence. These are set out in Annexure 1. It should be noted that there is no ground under s 5 of the ADJR Act which explicitly authorises judicial review on the basis of findings of fact "not supported by the evidence". That ground appears to be wider than the "no evidence" ground in s 5(1)(h). In this case, however, the relevant particular appears to be relied upon to support a finding that the Minister erred in law. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ discussed the relationship between error of law contemplated by s 5(1)(f) of the ADJR Act and the "no evidence" ground referred to in s 5(1)(h) as elucidated in s 5(3). He said (at 358): The better view, one which seeks to harmonize the two grounds of review, is to treat "error of law" in s 5(1)(f) as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act and to treat the "no evidence" ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision. The lengthy list of findings set out in Annexure 1 to the statement of claim gives rise to concern that this judicial review process may slide into merits review if not confined to its proper area. It is, however, too early in the proceedings to make any definitive observation in that regard. 10 It is, as counsel for the applicant suggests, open to the Court to give directions that the matter proceed on pleadings. I am not however convinced that this is a necessary course. The judicial review challenge is based upon the Minister's findings. Much of the statement of claim would not appear to be contentious as to background facts. It asserts legal duties and errors but a defence would not sharpen the issues in that respect. The question whether there was or was not evidence to support the findings referred to in Annexure 1 is not a question the resolution of which will be assisted by the filing of a defence. I am prepared to let the applicant's statement of claim stand as a statement of its case. Otherwise, in my opinion, the matter should proceed by way of affidavit and written submissions which may include the provision by the respondent of schedules identifying, in answer to Annexure 1, the evidence said to be supportive of the findings of fact there mentioned and in respect of Annexure 2, the material, if any, relied upon to show that the relevant matters there listed were, if mandatory relevant considerations, taken into account. 11 On the matter of discovery, having regard to the materials which have been disclosed, namely those set out in the Minister's reasons for decision, I see no utility in making any order for general discovery. Phosphate, however, submits that the Minister ought to discover: