Failure of the Board to Assess Proposal in Accordance with Bilateral Agreement
88 One of Tarkine National's alternative arguments was that Venture Minerals' proposed mining development was not assessed in the manner prescribed by the bilateral agreement. This was because any assessment of cumulative impacts which had been undertaken by the Board had not occurred under s 25 of the EMPC Act and because certain of the requirements of item 6.3 of Part B of Schedule 1 had not been satisfied.
89 Tarkine National's complaint, in so far as it relates to s 25 of the EMPC Act, fails at a number of levels. The first is that it is founded on the premise that the Board was required to assess the cumulative impact of the Riley Creek mine and a range of other projects in the Tarkine area when making an assessment under s 25 of the EMPC Act. For reasons already given, no such obligation was imposed on the Board.
90 In any event there is an air of unreality about the submission that the Board failed to conduct its assessment, to the extent that it involved consideration of cumulative impacts, under s 25 of the EMPC Act. There can be no doubt that the Board conducted the assessment process under s 25. As part of the assessment process it promulgated guidelines which required Venture Minerals to provide information and submissions relating to the cumulative impact of the mine development and other adjacent projects on aspects of environmental concern. Venture Minerals responded by providing extensive information and comment.
91 It is true that, when the Board came to prepare its report, it took the view, mistakenly in my opinion, that it was not able to have regard to such considerations for the purpose of making its assessment for the purposes of the EMPC Act. As a result it did not do so. Nonetheless, it undertook an assessment of the cumulative impact of the Riley Creek mine and two other proposed and adjacent mines. It did so because, as had been anticipated in the guidelines, this was information which the Board knew the Minister would need to take into account when he made his decision under the EPBC Act.
92 In NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277 at 288 Gleeson CJ dealt with competing contentions as to what considerations a statutory body was required to take into account in making a particular decision. The question, his Honour said (at 288), was "what, if anything, the Act requires, or permits, or forbids [the authority] to take into account in giving effect to its role in the system." On its proper construction s 25 of the EMPC Act neither required nor forbad the Board from having regard to cumulative impacts of the proposed mines on matters of environmental concern. The Board was, therefore, permitted, had it wished to do so for the purposes of its assessment, to have regard to these matters. Although it chose not to do so it, nevertheless, included in its assessment report an analysis of the combined impact of three proposed mines including that at Riley Creek. It did so to assist the Minister in making his decision under Part 9 of the EPBC Act. It could also have done so for the purposes of reaching its decision under the EMPC Act. The fact that it did not does not mean that assessment was not carried out under s 25. It was. The resultant report was provided to the Minister in accordance with the provisions of the bilateral agreement. The Board's mistaken view as to the extent of its powers under s 25 could have no bearing on the efficacy of the Minister's decision to approve the development.
93 In order to understand Tarkine National's submissions relating to Item 6.3 of Part B of Schedule 1 it is necessary to refer first to some of the earlier provisions of the bilateral agreement. By Clause 14.1(b) of the agreement the State of Tasmania undertook that, when an action was being assessed under the EMPC Act, it would provide a copy of the assessment report to the Commonwealth Minister not more than 10 days after the Board had accepted the report. The State also undertook to provide the Minister with "copies of any other assessment documentation" no later than 10 days after the assessment report had been provided. An "Assessment Report" is defined, in Clause 38, to mean, relevantly, the Report prepared by the Board in accordance with Item 6 in Part B of Schedule 1. The definition of Assessment Report in Part 9 of the EPBC Act is broader than the definition in the bilateral agreement. Section 130(2)(a) relevantly defines such a report as one "given to the Minister as described in … subsection 47(4) …". As already noted s 47(4) refers to a "report including, or accompanied by, enough information about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve … the action."
94 The term "[a]ssessment documentation" is broadly defined, in Clause 37, to mean "any formal report, study, agreement, submission or correspondence prepared by or received by the Board as part of the formal assessment processes set out in Schedule 1."
95 Item 6 in Part B of Schedule 1 deals with assessment reports. It provides that:
"6.1 The Board prepares an Assessment Report (or a document that includes an Assessment Report) and submits the Report to the Commonwealth Environment Minister."
96 Item 6.2 stipulates that the report is to take into account public submissions, the DPEMP and "any other relevant information available to the Board." Item 6.3 then provides that:
"6.3 The Assessment Report contains enough information about the relevant impacts of the proposed action to enable the Commonwealth Environment Minister to make an informed decision whether or not to approve the taking of the action under the EPBC Act, including:
(a) a description of:
(i) the action; and
(ii) the places affected by the action; and
(iii) any matters of national environmental significance that are likely to be affected by the action; and
(b) a summary of the relevant impacts of the proposed action; and
(c) a description of feasible mitigation measures, changes to the action or procedures to prevent or minimise environmental impacts on relevant matters of national environmental significance proposed by the proponent or suggested in public submissions; and
(d) to the extent practicable, a description of any feasible alternatives to the action that have been identified through the assessment process, and their likely impact on matters of national environmental significance; and
(e) a statement of conditions for approval of the action that may be imposed to address identified impacts on matters of national environmental significance; and
(f) a statement of State approval requirements and conditions that apply, or are proposed to apply, to the action when the report is prepared, including a description of the monitoring, enforcement and review procedures that apply, or are proposed to apply, to the action."
97 Tarkine National contended that the Board's report did not contain enough information about the relevant impacts of the proposed development (including cumulative impacts) to enable the Minister to make an informed decision. Specifically, it alleged that the Board's report failed to contain sufficient detail relating to the matters identified in sub-paragraphs (b), (c), (d) and (e).
98 Tarkine National did not submit that the Board's report did not deal with the matters identified in sub-paragraphs (b), (c), (d) and (e) of item 6.3. This is unsurprising given that the report contained passages (some of them extensive) which related to these matters. What it did challenge was the sufficiency of the information provided in the report. Nor did Tarkine National submit that the Minister did not have adequate information relating to these matters before him at the time he made his decision. Again, this is unsurprising given that, in addition to the assessment report, the Minister had available to him and considered a large volume of material including departmental advice, the DPEMP (including the supplementary information provided in March 2013) and a range of surveys relating to threatened fauna in the area.
99 Even if the report was deficient in one or more of the ways alleged, it does not necessarily follow that the Minister's decision was thereby rendered errant. The EPBC Act provided a number of processes whereby the Minister was able to obtain additional information which informed his decision making.
100 A similar point was taken in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. The appellant in that case argued that the Minister did not have an "assessment report" before him as required by s 133 of the EPBC Act because, on an objective assessment, there was not "enough" information in the document that purported to be the assessment report. Tamberlin J (with whom Moore and Lander JJ agreed on this point) rejected the contention. His Honour said (at 64-65) that:
"267 The information on which the Minister is required to make the decision is nowhere expressly limited to that in an assessment report which has undergone the public process. Other information, for example, which is not subject to the assessment report process, can be taken into account under ss 131 and 136. It is to be noted that the Minister under s 136 must take into account comments from other Ministers under s 131. Section 136 further contemplates that a Minister may obtain and take into account additional information beyond that contained in the assessment report as to the decision proposed. This supports a conclusion that a decision to approve or not approve can be based on further information not in the assessment report and which has not been the subject of assessment procedure or public participation. In particular, s 136(2) reinforces the view that there can be a decision which takes into account material not contained in the assessment report: see s 136(2)(a), (c), (d) and (e) of the EPBC Act. …
268. Furthermore, the language used in the above provisions does not in terms or impliedly require that an assessment report cannot be supplemented by further information as under s 131 or s 132. Nor is there any provision which prevents the Minister seeking such further information as considered necessary. There is no apparent reason why the Minister should be prohibited from obtaining such further information as he considers appropriate to perform his statutory duty of deciding whether to approve. The Minister is the person best placed to know whether he has 'enough information' to make an informed decision. It is fitting, given the wide range of the Minister's powers and discretions, to adopt a liberal and expansive view as to the range of information the Minister can consider necessary or appropriate. In the present case he obviously formed the view that he initially did not have enough information, and then proceeded to obtain it before making his further informed decision."
His Honour continued (at 66):
"273 As counsel for the respondents points out, s 47(4) of the EPBC Act, which describes an 'assessment report', provides for the Minister to receive a report which includes or is accompanied by enough information as to the impacts to let the Minister make a decision. This supports the view that it is possible to have an assessment report supplemented by other material which is not part of the 'body' of the report. The provisions contemplate a report which may not initially have all the relevant information but which at the time of the decision is accompanied by enough further information for the Minister to make the decision on the report and the material which accompanies it at the time of the decision. …" (Emphasis in original).
101 It was for the Minister to evaluate the Board's assessment report and to determine whether or not it provided him with sufficient information about the relevant impacts of Venture Minerals' proposed development to enable him to make an informed decision on whether or not to approve the development. He did not, in his reasons, expressly state that he considered that the Board's report contained enough information about relevant impacts to enable him to make an informed decision. It may, however, be inferred from the fact that he felt able to proceed to a decision that he considered that he had adequate material before him, if not exclusively from the report, from a combination of the report and the supplementary material which was provided to him. Even if it be assumed, in Tarkine National's favour, that the Minister may have taken the view that he required information, in addition to that provided in the Board's report, in order to make a decision, it does not follow that his decision to approve the project can be impugned for that reason. The requirement in paragraph 6.3 of Part B of the Schedule 1 of the bilateral agreement that any assessment report prepared under Tasmanian legislation contain enough information about the relevant impacts of a proposal as to enable the Minister to make an informed decision, must be understood as being aspirational rather than prescriptive. During the currency of the agreement it might reasonably be expected that multiple projects might be referred to the Minister for approval and that different persons might hold the office of Minister. Different Ministers might well take different views about what impacts were "relevant" for the purposes of their decision making under Part 9 of the EPBC Act. One Minister might consider that the report contained sufficient information for him or her to make a decision; another might not. In the event of any perceived deficiency s 47(4) of the EPBC Act contemplates that the bilateral agreement will ensure that the Minister will be provided with additional material such as a DPEMP in order to rectify that deficiency. The agreement complied with s 47(4) by requiring the State of Tasmania to provide the Minister, not just with an assessment report, but also with assessment documentation. Such additional material was supplied to the Minister and was considered by him for the purpose of making his decision. What has not been established is that he had regard to this additional material because he considered that the assessment report had not provided him with all the information which he needed in order to make an informed decision.
102 Even if it be assumed that the effect of Item 6.3 was to require that there be sufficient information in the assessment report, standing alone, to enable the Minister to make an informed decision and that that requirement had not been satisfied in the present case, this would not, necessarily, lead to the conclusion that the Minister's decision to approve the proposal was affected by reviewable error.
103 In Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4 the New South Wales Court of Appeal discussed the correct approach to determining the consequences which should flow from a failure to comply with a statutory duty. It said that:
"(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance. …(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement …"
Such an approach has been endorsed in this Court: see Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 36 FCR 478 at 494; Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 278. Generally speaking public duties have been treated as being directory in nature and, if not complied with, as not giving rise to invalidity. Another factor which is influential in ascertaining the legislative intention is the weighing of the consequences of holding the ultimate decision to be invalid: see SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 237-8.
104 There is no reason, in principle, why a similar approach should not be applied to the construction of a bilateral agreement entered into by the Minister pursuant to ss 45 and 47 of the EPBC Act. The consequences of there being any material deficiencies in the contents of an assessment report are to be assessed having regard to the bilateral agreement as a whole and the legislative purpose which it serves. The objects of the EPBC Act include protection of the environment, the promotion of ecologically sustainable development and the promotion of the conservation of biodiversity. In order to protect the environment, matters of national environmental significance are identified and actions which might prejudice the achievements of these objectives may only proceed with ministerial approval. As assessment of the proposed action is required in order that the Minister might be put in a position to make an informed decision. That assessment will normally be made under Part 8 of the EPBC Act. An alternative course, which was adopted in the present case, is that the assessment be made under State legislation pursuant to a bilateral agreement. The bilateral agreement required the State of Tasmania to provide the Minister not only with an assessment report but also with "assessment documentation" which had been prepared or received by the Board in the course of its assessment process under the EMPC Act.
105 Item 6.3 is concerned only with the Board's assessment report. Although it does not use mandatory language it does contemplate that any assessment report prepared by the Board will contain "enough information about the relevant impacts of the proposed action" to enable the Minister to "make an informed decision…". The critical question is what is the consequence if a report comprehended by Item 6.3 fails to contain "enough" information to facilitate the making of an informed decision. I do not consider that it was the intention of the ministerial parties to the agreement that any such deficiency would give rise to the invalidity of any decision of the Commonwealth Minister under Part 9 of the EPBC Act which was based in part on the deficient report. The legislative objective is to have in place a regime under which the Minister has what he or she considers to be sufficient information to make an informed decision at the time at which the decision is made. The provision of an assessment report is an important element of the scheme. Such a report is not, however, to be the exclusive source of information for the Minister. Section 47(4) of the EPBC Act and the terms of the bilateral agreement combine to ensure that the Minister also has before him or her a considerable amount of documentary material which was received and considered in the course of the assessment process. Furthermore, as was held in Lansen, it is open to the Minister, in the course of his or her deliberative processes to seek and obtain additional information. In this way any perceived deficiencies in the information contained in the assessment report can be remedied. Given the availability of alternative sources of information to which the Minister has access in order to be sufficiently informed I am unable to discern any intention that any such deficiency should cause any decision, made by the Minister under Part 9, to be invalid. This is particularly so given that the Minister is not responsible for any deficiency in the assessment report prepared pursuant to the bilateral agreement and that the objects of the Act are served if the Minister's decision is (as it was in the present case) able to be informed by material which formed part of the assessment documentation. I am not prepared to attribute to the authors of the bilateral agreement an intention that, merely because the Minister found it necessary (if he did) to draw on sources other than the assessment report in order to make an informed decision under Part 9, that rendered the approval decision invalid. Unnecessary cost (both in terms of money and time) would be caused to the Minister and the project proponent were the Minister to be required to reconsider the decision after the Board had remedied the deficiency in the assessment report by incorporating in it the assessment documentation which the Minister had already read and taken into account.