Did the Minister "have regard to" the approved conservation advice?
35 The approved conservation advice was not contained in the proposed decision brief provided to the Minister in November 2012 or in the final decision brief provided to the Minister in December 2012. It was not provided to the Minister at all for the purposes of making his decision and he did not have a copy of the document before him for any such purpose.
36 The Minister referred to the approved conservation advice in two places in his statement of reasons for decision under the heading, "Miscellaneous considerations".
37 First, at [56], the Minister said:
In deciding whether or not to approve the taking of the proposed action, I took into account (among other matters) the conditions imposed on the proposed action under Tasmanian legislation, principles of ecologically sustainable development as required under section 136(2)(a) of the EPBC Act, any relevant conservation advice, threat abatement and recovery plans as required by section 139, and the precautionary principle as required under section 391 of the EPBC Act.
The Minister's reference to "any relevant conservation advice" may reflect the fact that the action had the potential to affect listed threatened species other than the Tasmanian devil.
38 Second, at [61], the Minister said:
Likely impacts, as well as avoidance, mitigation and offset measures have been considered in light of recovery plans, threat abatement plans and conservation advices where relevant.
39 Counsel for TNC submit that the Minister did no more than pay lip service to his obligation under s 139(2) of the Act. They submit that, as the Minister did not have the approved conservation advice before him when he made his decision, he cannot be said to have had regard to it for the purpose of making that decision.
40 Counsel for the Minister and Shree contend that the Minister had information before him for the purpose of making his decision which referred to all of the material which is contained in the approved conservation advice with some few exceptions. Those exceptions are the matters set out at [48] below and discussed at [31] to [33] above.
41 Counsel for TNC submit that s 139(2) requires the Minister to give weight to the approved conservation advice as a fundamental element in making his decision. They contend that, at the very least, it required the Minister to turn his mind to the document and give it genuine consideration.
42 In Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57], the Full Court referred to the expression "have regard to" for the purposes of s 109(1)(c) of the Migration Act 1958 (Cth). At [61], the Full Court observed that the expression is capable of having different meanings depending on its statutory context. Sometimes the statutory context will require that the matter to which a decision-maker is to have regard is a fundamental element in the decision-making process. On other occasions the matter will require mere consideration by the decision-maker, not being a fundamental element in the decision-making process.
As the Full Court said in Khadgi at [58]:
In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J).
43 In Lansen v Minister for Environment and Heritage (2008) 174 FCR 14, a Full Court considered the consequences of the Minister's failure to consider matters in s 134(4) of the Act in deciding to attach a condition to an approval. At [33], the majority (Moore and Lander JJ) said:
The question as to whether a decision made in breach of a condition regulating the exercise of a statutory power is invalid involves a question of statutory construction to determine whether the purpose of the legislation is to invalidate any act done in breach of the condition.
At [34], their Honours continued:
Not all acts done in breach of a legislative requirement which require the prior performance of a condition are invalid. The validity of any act done in breach of a statutory condition will depend upon whether it was intended by the legislature that such an act would be invalid. Sometimes the intention of the legislature will be evident from the language of the provision providing the power. However, the intention of the legislature is not ascertained merely because the legislature has couched the doing of the condition precedent in imperative language. It is not a useful test to determine the purpose of the legislation by asking whether compliance with the condition precedent is mandatory or directory. Such an approach may "deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid": Project Blue Sky 194 CLR 355 at 390. Moreover, little assistance can be obtained from a consideration of other statutes.
At [35], their Honours summarised the effect of relevant High Court authority by concluding:
The test for determining whether an act done in breach of a condition is answered by determining whether the purpose of the legislation that an act done in breach of a condition should be invalid: Project Blue Sky 194 CLR 355 at 390; Commissioner of Taxation v Futuris Corporation Ltd (2008) 82 ALJR 1177. The purpose of the legislation will be gleaned from the scope and object of the EPBC Act which gives the power to do that act. The ascertained purpose will determine whether the act done in breach of a condition precedent in the EPBC Act is valid or invalid.
44 In Lansen, the majority carefully considered the relevant statutory context and concluded that the Minister was obliged to have regard to the matters referred to in s 134(4)(a) and (b). In arriving at their decision, the majority took into account the provisions of s 134(5) which provided that "a failure to consider information as required by para (4)(aa) does not invalidate a decision about attaching a condition to the approval". The absence of such provision with reference to s 134(4)(a) and (b) was noted. At [72], the majority said:
The only provision in Pt 9 relating to the imposition of conditions which is couched in mandatory language but which is said by the EPBC Act itself not to lead to invalidity if breached is s 134(4)(aa). It is our view that is further evidence that Parliament intended paragraphs (a) and (c) of s 134(4) to be observed for the validity of a decision under s 134.
45 In the current matter, counsel for TNC pointed to a lack of indication from the terms of s 139(2) that failure to have regard to an approved conservation advice would not lead to invalidity. That is one consideration which supports the view that failure to comply with s 139(2) leads to the decision being invalid.
46 There are other indications from the legislative scheme which support that view. The approved conservation advice is given an important status in the Act. It is a document which is approved by the Minister after advice from a scientific committee. Such an advice, prepared specifically in relation to a threatened species, would ordinarily be expected to be a significant document to take into account in making a decision which has the capacity to affect that species.
47 Section 139(2) in mandatory language requires that, in deciding whether to approve the taking of the action, the Minister must have regard to any approved conservation advice for the species. Given the significance of the approved conservation advice in the context of the Act, it is not enough that the vast majority of the material provided to the Minister by his department overlapped with material in the approved conservation advice. The Minister was obliged to give genuine consideration to the document. Simply to say in a statement of reasons that he took into account "any relevant conservation advice" does not answer the question whether he considered that the approved conservation advice in relation to the Tasmanian devil was relevant to his decision. As noted at [37] above, there were other threatened species considered by the Minister in making his decision to approve the taking of the action.
48 Counsel for each of the Minister and Shree highlight the fact that most of the material contained in the conservation advice was before the Minister by other means. The exceptions are:
the timetable for possible extinction;
the lack of effective cures for devil facial tumour disease; and
research priorities.
These matters were referred to in the approved conservation advice but not in any of the materials provided to the Minister prior to the making of the decision.
49 Given the Court's view of the significance of the approved conservation advice in the Minister's decision-making process in the statutory scheme, it is irrelevant for the purposes of s 139(2) that most of the material in the advice was before the Minister by other means. The Act requires the Minister to have regard to the conservation advice. This means that genuine consideration must be given to the document. The Minister's failure to have regard to the document for the purpose of making his decision is fatal to its validity.
50 The failure may be characterised as a failure to comply with a statutory obligation in the sense described in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [92] and [93] per McHugh, Gummow, Kirby and Hayne JJ. In accordance with Project Blue Sky, it is the intention of the provisions of the Act dealing with the protection of threatened species that an act done in breach of the requirement imposed by s 139(2) should be invalid.
51 Apart from the matters already referred to, there are several indicators in the Act which point to the protection of protected species as being a matter of considerable importance.
52 Section 3 is headed, "Objects of the Act". Those objects include s 3(1)(a) which is "to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance…". In s 3(2)(d) and (e), reference is made to achieving the objects of the Act, by, among other things, adopting an environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; and enhancing Australia's capacity to ensure the conservation of its biodiversity by including provisions to:
(i) protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species…
53 Section 18(3) prohibits the taking of an action which will have significant impact on a listed threatened species or is likely to have such an impact. It creates a civil penalty for breach of that provision.
54 Section 18A creates offences for the taking of an action that has or will have a significant impact on a listed threatened species. Section 19 makes ss 18 and 18A inapplicable to certain action which is the subject of an approval under Part 9. Such approvals are not lightly given and are subject to the complicated statutory process referred to in the introductory paragraphs of these reasons. This is a further indication of the importance of the concept of the protection of threatened species in the legislation.
55 Section 34 identifies a listed threatened species as a matter protected by the provisions of Part 3 referable to s 18(3). Under s 34D, the Minister is entitled to make declarations relevant to a listed threatened species to promote its survival and enhance its conservation status. Section 53 empowers the Minister to enter into a bilateral agreement containing a provision concerning a listed threatened species to promote its survival and enhance its conservation status, among other things.
56 Given the foregoing provisions, it is unsurprising that Parliament would require the Minister to have regard to any approved conservation advice from a scientific committee concerning a threatened species before approving an action which will have, or is likely to have a significant impact on that species.
57 In addition, Part 13 of Chapter 5 deals with the process of listing threatened species and ecological communities. Section 179 is headed "Categories of threatened species" and creates the following categories:
extinct;
extinct in the wild;
critically endangered;
endangered;
vulnerable; and
conservation dependent.
58 The criteria for native species to be classified in the critically endangered or vulnerable categories are set out in part of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth). Under Item 1 of reg 7.01, an "endangered species" will have undergone, is suspected to have undergone, or is likely in the immediate future to undergo a severe reduction in numbers. Under Item 5, its probability of extinction in the wild is at least 20 per cent in the near future.
59 The important characteristic of each category of threatened species referred to in s 179 is, with the exception of the extinct category, that the species requires protection from actions which may significantly impact on it. The Minister has a duty to keep such matters in the forefront of his or her mind in the decision-making process, in addition to other objects of the Act including sustainable development. The requirement to have regard to any approved conservation advice relevant to a threatened species before approving action which may have impact on that species is a pivotal element of that system of protection.
60 Another way of characterising the failure of the Minister to comply with s 139(2) of the Act is to regard it as evidencing the Minister's failure to take into account a relevant consideration that he was bound to take into account; see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 42 per Mason J.