Mr Early's further affidavit
133 Most of this affidavit described various practices and procedures within the department, many of them established by Mr Early. A number of objections were taken to Mr Early's affidavit. Some of them suggested that his evidence of departmental practice was not relevant. Some of them complained that he had stated conclusions without adequately disclosing the facts upon which the statements were based. The factual content of the affidavit, however, seemed uncontroversial even if arguably irrelevant or generally expressed. It was clear from responses made to the objections and from written submissions filed with the affidavit that the respondent wished to be in a position to invite me to conclude that the Minister had acted in accordance with the practices to which Mr Early deposed. Although the evidence fell well short of establishing what the Minister had done (except that he had received the brief dated 13 June 2007 and signed the Statement of Reasons sent to PRL on 14 June 2007) much less why he had taken any particular step I decided I would not remove from the respondent the foundation advanced, such as it was, for the suggested inferences and I therefore overruled the objections. I saw no prejudice to PRL, as it remained open to it to submit that the suggested inferences were either not available or too slender to be drawn.
134 Mr Early said, in connection with the practice of inviting a Minister to make 'modifications':
'Another administrative process which was developed and which I approved for the proper administration of the EPBC Act is to place primary responsibility upon the departmental officer who prepared the original written brief to the decision-maker to prepare the first draft of any statement of reasons for that particular decision on the basis of the original written brief, any annotations or comments by the decision-maker on the original written brief or any discussion with the decision-maker at the time of the decision, and the attachments to that brief. Under this practice, those draft reasons for decision are then put to the decision-maker to consider whether they accurately reflect the decision-maker's reasoning and can be adopted as such by the decision-maker or whether they do not accurately or completely embody the decision-maker's reasoning and require modification. The practice requires the brief to expressly state that the decision-maker is to consider the draft statement of reasons and to make any modifications the decision-maker considers necessary to ensure the statement reflects the decision-maker's reasoning.'
135 To the extent that Mr Early's evidence was intended to raise an inference that the Minister, in fact, personally verified the contents of the draft reasons provided to him on 13 June 2007, I am not prepared to draw such an inference. It would be no more than an assumption, made in the respondent's favour, unsupported by any cogent evidence. As I said earlier, the Minister was not, with the brief dated 13 June 2007, provided with the material from which the detailed reasoning in the Statement of Reasons was drawn. An assumption that he did more than simply accept the Statement of Reasons as reliable would be unwarranted. Nor am I prepared to draw an inference, much less simply assume, that the fact that the Minister made no changes to the draft reasons put before him indicated that they were matters present to his mind on 27 April 2007.
136 Another issue dealt with by the affidavit concerns what were said to have been errors in the material before the Minister when he made his decision on 27 April 2007. It is as well to set out those paragraphs in full:
'21. The Attachments A, B and C to the Brief dated 2 February 2007 and which I forwarded to the former Minister on that date (see paragraph 24 of my first affidavit and Annexure "GPE-18" thereto) contained a number of errors which I did not identify at the time that I signed the brief.
22. At paragraph (a) on the first page of Attachment A and paragraph (b) on the second page, the references to Attachment G should have been references to Attachment I (the Departmental assessment report). The designation "N/A" at paragraph (c) on page 2 of Attachment A was also incorrect, and should have stated "see Attachments G and H".
23. In the proposed refusal decision at Attachment B to the Brief dated 2 February 2007 it is stated that the refusal has effect for all five sets of the controlling provisions which, on 14 November 2001, I had determined were the controlling provisions for the proposed action (see paragraph 4 of my first affidavit). The proposed refusal decision should not have stated that the refusal for approval had effect for sections 16 and 17B (Wetlands of international importance) and sections 23 and 24A (Commonwealth Marine Area) of the EPBC Act. The heading of attachment B also refers to "Decision to approve the taking of an action" when it should have said "Decision to refuse the taking of an action".
24. The proposed letters to the Minister for Local Government, Territories and Roads and to the Minister for Transport and Regional Services at Attachment C to the Brief of 2 February 2007 should also not have referred to the controlling provisions sections 16, 17B, 23 and 24A of the EPBC Act.
25. Before I signed the Brief of 2 February 2007 I had carefully read the Departmental Assessment report at Attachment I, and I was aware that the Department had only recommended refusal of the proposed action because of its assessment in relation to controlling provisions sections 18, 18A, 20, 20A, 26 and 27A of the EPBC Act.'
137 However candid might be the admissions of error which these passages contained, and however honourable might be Mr Early's assumption of personal responsibility (which I do not intend in any sense to disparage) the matters to which he referred, taken at their highest for the respondent, confirm, rather than alter, the character of the decision made on 27 April 2007, the Minister's reliance upon and adherence to the recommendations made to him and the legal errors which result.
138 I confess that, in part at least, I find some of the explanations unconvincing. For example, it is hard to dismiss the references to the assessment report (identified as Attachment G) in Attachment A to the first brief as oversights or slips. Attachment A refers to the assessment report explicitly as Attachment G in two separate places. The environmental impact statement is referred to in two separate places as Attachment F (not Attachment G, as it was in the first brief).
139 I am also bemused by Mr Early's treatment of the 'errors' made about the controlling provisions. As Mr Early pointed out, the suggested errors were made not only in the decision offered to the Minister for approval but also in correspondence he was asked to sign. The only departure from statements to the effect that ss 16/17B and 23/24A were relevant controlling provisions for the purpose of the Minister's decision to refuse approval did not occur until six weeks after the decision was made and a comprehensive set of written reasons had been prepared and then reviewed by the Australian Government Solicitor in circumstances of 'national and international attention' to the decision.
140 The first brief to the Minister, on 2 February 2007, said, in part:
'The Department is concerned that phosphate mining on the proposed leases would impact upon various matters protected under the EPBC Act.'
141 The brief itself identified all five sets of controlling provisions nominated in Mr Early's earlier decision that the proposed mining was a 'controlled action'. The letters to other Ministers, which the Minister was asked to, and did, sign said:
'I am writing for the purposes of section 131 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in relation to the decision I am proposing to make on this matter. I intend to reject the proposal by Phosphate Resources Limited to expand phosphate mining over nine sites of vacant Crown land on Christmas Island.
I am informing you of my proposed decision, the relevant controlling provisions for which are:
• Section 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 24 A (Marine environment); and
• Sections 26 and 27A (Protection of the environment from actions
involving Commonwealth land).'
All five sets of controlling provisions were therefore again identified as ones relating to the 'proposed decision'.
142 The five sets of controlling provisions were expressed to be ones for which the proposed decision would have effect in the draft decision approved in principle by the Minister on 14 February 2007, in accordance with Mr Early's recommendation to him on 2 February 2007.
143 The five sets of controlling provisions were ones for which the decision signed on 27 April 2007 was expressed to have effect.
144 Section 130 of the Act (which I will discuss in a little more detail) required that the Minister make a decision for each of the sets of provisions that Mr Early had decided were controlling provisions. The decision was required to be 'whether or not to approve the taking' of the action. On its face, the decision made on 27 April 2007 met this requirement.
145 The statement in the Minister's decision that the decision had effect for ss 16/17B and 23/24A of the Act, and the same statement in correspondence sent to Ministerial colleagues, draws attention inevitably to the fact that the Minister's decisions and actions were based directly on the recommendations in the two briefs and were infected by any legal error or inadequacy of advice or analysis there disclosed. The respondent argued that those aspects of the decision should be regarded simply as a clerical error. In my view the matter should not be approached that way. I am convinced that the better view is that the suggested errors are, seen in their historical and proper context, further cogent evidence of the fact that the Minister's actual, and contemporaneous, reasons for decision are explained by the two briefs and the summaries and recommendations they contain, rather than in the written Statement of Reasons.
146 Finally, the statement in the last paragraph of Mr Early's affidavit which I set out earlier should be mentioned. Apart from a reference at the beginning of the assessment report that all five sets of controlling provisions had been determined to be applicable (as they had earlier by Mr Early himself), the assessment report made no further specific reference to any of the controlling provisions. It did not state any recommendation in terms which referred to the controlling provisions, much less to only three sets of such provisions. The only, even oblique, reference to the protections given by the Act in that part of the assessment report which contains the Department's recommendations occurred in the last sentence of the second last paragraph of the assessment report in the following terms:
'Further, the draft EIS has not demonstrated the impacts of the proposal on all the matters protected under the EPBC Act in relation to the proposal will be acceptable.'
147 However, the respondent submitted that it was clear from the discussion in the assessment report that the Department did not make an assessment that all five sets of controlling provisions were engaged. Reference was made to specific parts of the assessment report, which I have identified hereunder, which, it was suggested, made clear that ss 16/17B and 23/24A of the Act were not intended to be a foundation for the decision to refuse approval.
148 As to ss 16/17B, the passage identified was:
'The modified proposal in the draft EIS, covers eight rather than nine leases. PRL has withdrawn the ninth lease, MCI 70/9 (124.14ha), which contains primary rainforest, a high density of roosts of Abbott's Booby Sula abbotti, and is close to Hosnie's Spring (Ramsar site).
149 No conclusion, based on this circumstance, was stated elsewhere in the assessment report. Any conclusion about the significance of withdrawal by PRL of the ninth proposed lease requires other information which was certainly in Mr Early's knowledge but about which there was no evidence that it was within the Minister's knowledge. It was certainly within Mr Early's knowledge because, on 8 January 2002, he gave written reasons for deciding on 14 November 2001, contrary to PRL's contentions, that all five sets of provisions were controlling provisions. In those written reasons he said (in a style very similar to the later Reasons for Decision signed by the Minister):
'15. I found that Hosnie's Spring is listed as a wetland of international importance under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (the Ramsar Convention). I found that the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland make an important contribution to the ecological character of Hosnie's Spring.
16. I found that most of the rainwater that falls on Christmas Island percolates through the soils and porous limestone into groundwater systems. I found that Hosnie's Spring is located approximately one kilometre from the site of the proposed mining operations and that most of the water flowing into the wetland comes through groundwater systems.
17. I found that changes to the surface as a result of mining operations could alter the characteristics of water percolating into groundwaters. In view of the close proximity of the site of proposed mining operations to Hosnie's Spring, it is possible that the operations will result in a major change to the quality and quantity of water flowing into the wetland. This would adversely affect the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland.
18. I found that there is insufficient information about groundwater flows to provide full scientific certainty about whether or not the effects referred to in paragraph 17 will occur. Applying the precautionary principle, I decided that it is likely that the action will result in changes in the quality and quantity of water flowing into Hosnie's Spring.
19. I found that some of the phosphate-laden dust referred to in paragraph 14 is likely to be blown into Hosnie's Spring, resulting in further adverse changes in the physico-chemical status of the wetland.
20. In light of my findings in paragraphs 15 to 19 I found that the proposed action is likely to have a significant impact on the ecological character of a Ramsar wetland.'
150 Doubtless, Mr Early might have appreciated, on a careful reading of the assessment report, that no basis remained for refusal of the proposed action by PRL by reference to ss 16/17B of the Act but there was no evidence that this conjunction of events and circumstances was ever brought to the Minister's attention. Mr Early's statement of his reasons for decision of 8 January 2002 was not amongst the material placed before the Minister with any of the briefs.
151 The position regarding ss 23/24A of the Act is even more obscure. The relevant passage in the assessment report, from which, it was argued, it should be concluded that ss 23/24A was not to be the foundation for a decision to refuse approval, was identified as:
'Marine Fauna
Phosphate from stormwater can alter nutrient levels in the seawater which can impact on the algae and coral population. As the extent of coral and seagrasses is restricted around the Island, impacts can contribute to substantial alterations of the local marine biota.
It is unknown to what extent the change in nutrient levels from phosphate in stormwater runoff, will impact upon the food sources for adult and juvenile Green Turtles (Chelonia myda), Hawksbill Turtle (Eretmochelys imbricate), the spawn of Red Crabs, and migrating Whale Sharks (Rhincodon typus). However, the issues can probably be managed through appropriate mitigation measures.'
Another passage, to which my attention was not drawn, was less optimistic about stormwater runoff. It said:
'Erosion and Water quality
Areas that are cleared of vegetation are susceptible to erosion during large storm events, particularly in the "wet" season. Compaction of soils during mine site establishment and mining operations can result in preferential flow paths for water, and development of erosion channels. Sediment eroded from mine areas has the potential to impact on the marine environment.'
152 Mr Early's reasons for deciding that ss 23/24A were controlling provisions were not expressed, however, to be based on a concern about phosphate in stormwater runoff. He said he was concerned about phosphate laden dust. His reason was:
'14. I found that phosphate-laden dust will be generated by mining operations, road transport, ore-drying, and ship-loading. Some of this dust will be blown into the marine waters surrounding Christmas Island, with a consequential increase in the concentration of phosphorus and sedimentation in these waters. I found that increased phosphate concentrations and sedimentation can have a deleterious effect on marine waters. I found that these waters support coral reefs, tropical fish and turtles and are likely to be sensitive to increased phosphate concentrations and the smothering impacts of ore dust, especially upon the inshore benthic reef biota. I therefore found that the proposed action is likely to have a significant impact on the environment in the Commonwealth marine area.'
153 A further passage in the assessment report, to which my attention was not specifically drawn, said:
'Dust
In-situ mining of the proposed mining leases will generally involve creating access through primary vegetation to the rear of the ore body, and retreat mining out in panels perpendicular to the access track. Moderate slopes will be mined in a terrace fashion where the excavator will dig from the base of the slope.
During the clearing, mining and transport of ore associated with this proposal, dust will be generated both in the proposed leases, and in the transport corridors to the phosphate dryers. The dust has the potential to coat the leaves and stems of exposed vegetation in the immediate vicinity of its source. Dust generation currently occurs from existing, high-usage roads on the Island, and from current mining of stockpiles, during ore processing and during shiploading, with the latter two sources being the most significant. The vegetation and underlying soil surface immediately adjacent to these areas is often coated with dust, especially during dry periods. However, this effect is relatively localized with little evidence of major dust deposition more than 30m into the forest from major roads.'
154 This analysis does not seem to me to directly dispel Mr Early's expressed concern that phosphate-laden dust might be blown into the marine waters surrounding Christmas Island from ship-loading, and other, operations. I do not accept, therefore, that a careful reading of the assessment report by the Minister, had that occurred, would have made it apparent that the references to ss 23/24A were erroneous and inadvertent.
155 It seems to me that no real attention was given in the assessment report to the question of which of the controlling provisions should provide the statutory foundation for refusal of PRL's proposal. Rather, the assessment report dealt in its discussion, conclusions and recommendation with the larger question of whether the proposal should be accepted or rejected. The brief, however, and its various attachments which the Minister was asked either to execute or approve in principle (the correspondence to other Ministers and the draft decision) did explicitly state the controlling provisions which were at work and for which the decision should be made.
156 I do not accept the submission made by the respondent that there was a simple unintended clerical error in the terms of the decision made on 27 April 2007. In my view, the conclusion is inescapable that the inability of the Department to justify the decision refusing approval for the purposes of ss 16/17B and 23/24A only became apparent when work started on the preparation of detailed written reasons to explain the decision. However, it does not matter in the end what view is reached about this issue. Even had I accepted Mr Early's evidence about his own appreciation of the position at face value it would only have added to my conviction that the Minister's assessment was dependent upon, and he did rely upon, the specific recommendations made to him in the briefs of 2 February 2007 and 19 April 2007, including what are now said to be the errors they contained.
157 Whatever view is taken, I see no basis upon which I could conclude that the admitted deficiencies should be regarded as having no significance for an appreciation of the Minister's actual reasons at the time he made his decision. Quite clearly those reasons were not adequately, reliably or accurately expressed by the written Statement of Reasons signed on 14 June 2007. If they were the decision would not have been made in the terms it was.