SECTION 75(2B)
95 The Wilderness Society submits that the Minister misunderstood s 75(2B) of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ("the Act"), and incorrectly found that it precluded him from considering the adverse impacts of those RFA forestry operations which harvest the timber necessary for the operation of the pulp mill. As a consequence, it is said, both the controlled action decision under s 75 and the assessment approach decision under s 87 are based on an error of law and are invalid.
96 The Minister and Gunns submit that, because the forestry operations which will supply wood to the mill are covered by a regional forest agreement ("RFA"), the Minister, pursuant to s 75(2B), must not consider any adverse impacts relating to those forestry operations when considering the referral of the proposal to construct and operate the mill.
97 In his reasons for the controlled action decision, the Minister stated that "as required by s 75(2B) of the EPBC Act, I did not consider any adverse impacts of forestry operations before 2017 for the supply of wood chips to the proposed mill." In his reasons for the assessment approach decision, the Minister based his findings on, inter alia, a brief from his Department of 24 April 2007, which gave advice in relation to s 75(2B) to the same effect.
98 To understand the obligation arising under s 75(2B), it is necessary to consider several other provisions of the Act, especially ss 75(2)(a), 38 and 42.
99 Section 75(2)(a) requires that the Minister, when making a controlled action decision, must take into account alladverse impacts which the controlled action is likely to have on certain environmental matters protected under Part 3 of the Act. Section 75(2)(a) is subject to the exception in s 75(2B)(a), which obliges the Minister not to consider any adverse impacts of "any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply". The words "under Division 4 of Part 4, Part 3 does not apply" are important in this case because they limit those RFA forestry operations which fall outside the scope of the obligation in s 75(2). Notably, there is no reference to them in the Minister's reasons for decisions or in the Departmental briefing on which he acted.
100 Sections 38 and 42 are in Division 4 of Part 4 of the Act, which deals with forestry operations in areas covered by RFAs. Section 38 provides that Part 3 of the Act does not apply to RFA forestry operations undertaken in accordance with an RFA. Part 3 is important in this case because it sets out requirements which must be satisfied before an action can commence. In this case, the relevant "controlling provisions", as they are called, are those relating to listed threatened species and communities, listed migratory species and the marine environment. The effect of s 38 is to provide that these selected Part 3 prohibitions do not apply to RFA forestry operations that are undertaken in accordance with an RFA. RFA forestry operations include the planting and management of trees before they are harvested and the harvesting of timber for commercial purposes, which includes any associated land clearing or preparation, burning-off or transport operations: see s 38(2) of the Act, which incorporates s 4 of the Regional Forest Agreements Act 2002 (Cth), which in turn incorporates the definition from clause 2 of the Tasmanian RFA. This definition is relevant here because the Tasmanian RFA covers all forestry operations in Tasmania and consequently applies to any forestry operations necessary to supply wood for the operation of the pulp mill.
101 However, s 38 is subject to s 42, which provides that s 38 does not apply in three specified instances. The first and second are where the RFA forestry operations take place "in a property included in the World Heritage List" or "in a wetland included in the List of Wetlands of International Importance kept under the Ramsar Convention": see s 42(a) and (b). These are sites which, by reason of their sensitivity and international significance, have been singled out for special treatment. Neither of these provisions is relevant in this case.
102 The third exception in s 42(c) excludes the application of s 38 where RFA forestry operations are "incidental to another action whose primary purpose does not relate to forestry" (emphasis added). The operation of this exception is central to this appeal. If it applies, the consequence is that, contrary to his express finding, the Minister was bound by s 75(2)(a) to take into account the adverse impacts of the RFA forestry operations occasioned by the need to supply timber to the pulp mill. This is because s 42(c) renders inapplicable s 38, which in turn means that the relevant RFA forestry operations are not covered by Division 4 of Part 4, and consequently are not RFA forestry operations to which s 75(2B) applies. With the application of s 75(2B) thereby excluded, s 75(2)(a) remains a blanket mandate that the Minister must consider "all adverse impacts" which the pulp mill will have or is likely to have on those matters prohibited in Part 3 of the Act.
103 The Minister and Gunns submit that s 42(c) does not apply in this case because the forestry operations which supply the pulp mill are not "incidental" to it. The Minister submits that to construe s 42(c) in a way that requires the Minister to consider the impact of RFA forestry operations which will supply timber to the mill would deprive the exemption in s 38 of any meaningful operation. This is because most large-scale harvesting of forest products relate to and supply some form of subsequent industrial use. The Minister suggests that an example of forestry operations which are "incidental" to another action falling within the scope of s 42(c) would be the clearing of land carried out as preparation for the construction of a residential subdivision.
104 The Minister also refers to the Explanatory Memorandum to the Environment and Heritage Legislation Amendment Bill (No 1) 2006 (Cth) ("the Bill"), s 189 of which introduced s 75(2B) into the Act. That Explanatory Memorandum refers to s 75(2B) as clarifying the position that "in making a controlled action decision, in relation to a proposed development, such as, afactory which will use timber from as (sic) RFA region, the Minister must not consider any adverse impacts of any RFA forestry operation". The example given by the Explanatory Memorandum, it is said, is analogous to the present the case and supports the conclusion that s 75(2B) applies to the present situation and requires the Minister to disregard the adverse impacts of any RFA forestry operation.
105 There are two difficulties with this argument. The first is that the Explanatory Memorandum expressly states that, if s 38 does not apply because of the operation of s 42, then the application of s 75(2B) will also be excluded.
106 The second difficulty is that the example of "afactory which will use timber from as (sic) RFA region" is inapt because the mere use of timber by a factory is not necessarily coextensive with the undertaking of a forestry operation incidental to the construction and operation of a factory which will use timber. The expression "use" can include a situation where the timber required for the operation of the factory was sourced at a time or in a way which demonstrates that it was not intended for or associated with a particular factory or process of manufacture. In such a situation, the factory would "use" timber from an RFA region, but the forestry operation which was necessary to supply that timber cannot be said to be connected or "incidental" to the operation of the factory. Accordingly, the example given in the Explanatory Memorandum is expressed at a broader level of generality than the specific circumstances contemplated by s 42(c). It is therefore unhelpful to rely on it as an indication that the use of timber by a proposed action, such as the construction and operation of a factory, excludes the more specific circumstances to which s 42(c) is directed.
107 In addition, counsel for Gunns submits that the effect of s 38 is that forestry operations conducted in accordance with an RFA are not subject to the prohibitions contained in Part 3 of the Act. It is said that, if the forestry operations are to be undertaken in accordance with the Tasmanian RFA, those operations cannot becomeprohibited under Part 3 simply because they are related to an action for which approval is sought. If the operations were legal before the proposal, they cannot become illegal as a result of that proposal.
108 The difficulty with this submission is that no forestry operations have yet begun. This is not a situation where what was originally a "lawful" operation is transformed into an "unlawful" operation. It is not to the point to consider whether forestry operations which at one point in time are not prohibited may become prohibited at a later point in time because of the effects which the operation of the pulp mill may have. Given that no forestry operations for the pulp mill have yet begun, no appraisal of the effects of pulp mill in conjunction with the effects of forestry operations has been conducted, and therefore the suggested pre-existing legality of one (the forestry operations) has no bearing on a determination of the legality of the other (the proposed construction and operation of the pulp mill).
109 I turn to consider the terms of s 42(c).
110 The expression "incidental" is a word of wide import. In ordinary usage, the term can mean "liable to happen in connection with" or "naturally attaching to" or "naturally appertaining to". These are meanings for which The Wilderness Society contends, saying that the forestry operations in this case are related to or necessary for the operation of the pulp mill, and therefore are incidental to it. However, the word can also mean "following upon as a subordinate circumstance". This is the construction for which counsel for Gunns contends, arguing that the forestry operations cannot be said to be subordinate to the operation of the pulp mill, and thus are not incidental to it. There is no force in this latter contention because something can be both subordinate and incidental; there is no mutual exclusion of the two concepts.
111 In my view, the meaning of the word "incidental" in s 42(c) is sufficiently wide to include the relationship between the operation of the pulp mill and the RFA forestry operations which will supply the necessary timber. Included in each of the definitions canvassed above is a presumption that some relationship exists between the operation of the pulp mill and the forestry operations supplying the wood.
112 Whether a particular forestry operation is in fact "incidental" to a particular action will require consideration of the proposed action and its degree of dependence and closeness of association with the relevant forestry operations. In my view, the RFA forestry operations relevant to this case may be characterised as incidental to another action, namely the construction and operation of the mill.
113 The interpretation of "incidental to" favoured by the majority in this case could produce the odd result whereby fortuitous or subordinate logging on a relatively small scale, such as a one-off activity to clear part of a forest to make space for the construction of a road or school or playing field, would be covered by s 42(c) as incidental, yet other essential forestry operations on a very large scale and having much greater adverse impacts over several decades in relation to many millions of tonnes of harvested timber would be regarded as not incidental. In my view, this anomalous consequence points strongly against the interpretation favoured by the majority.
114 Furthermore, an interpretation of s 42(c) that limits the application of the provision to fortuitous small scale logging which is not essential to an action does not, in my view, accord with the purpose to which s 42 is directed. Section 42 lists three specific exceptions to the requirement in the Act that Part 3 is not to apply to an RFA forestry operation conducted in accordance with an RFA. Two of these exceptions arise where important matters of international environmental significance are at stake, namely sites on the World Heritage List or the List of Wetlands of International Importance. In this context, it would be incongruous to construe the third exception in s 42(c) in a way which confines its application to fortuitous or subordinate forestry operations which, because they comprise only one-off and relatively small scale related logging with limited adverse impacts on matters of national environmental concern, may be of much less significance. The preferable interpretation in my view is one which treats the third exception set out in s 42(c) as having a level of importance and significance proportionate with the other exceptions in s 42.
115 The second question of construction relates to the meaning of "primary purpose" in s 42(c). It is important to note the use of the adjective "primary". Although a proposed action may have several purposes, the task of the decision-maker is to ascertain the purpose which is dominant, as opposed to other secondary, subordinate or collateral purposes. In this case, there is no real dispute that the proposed pulp mill is an action which does not have the primary purpose of forestry. The Minister conceded this, and counsel for Gunns, although previously suggesting otherwise, adopted the Minister's submissions.
116 The term "forestry" in s 42(c) is not defined in the Act, the Tasmanian RFA or any Commonwealth legislation to which I have been referred. In my view, the primary meaning of the term denotes the science or practice of studying, managing, growing and caring for forests and forest plantations. This interpretation is supported by both the definition of "RFA forestry operation" in the Tasmanian RFA, which refers to the "management" and "harvesting" of trees, and the description given by The Macquarie Dictionary (2nd edition), which is "the science of planting and taking care of forests" and "the act of establishing and managing forests". Therefore, the expression "forestry", understood in context, does not cover the processing of wood into pulp after the wood has been chipped. Such a secondary processing is two stages removed from the process of managing and harvesting forests.
117 Taking into account all of the above, I am of the view that s 42(c) is sufficiently broad to permit a conclusion that the RFA forestry operations contemplated in the present case can be regarded as incidental to another action, namely the construction and operation of the pulp mill, which has as its primary purpose the processing of wood in a way that does not relate to forestry.
118 The above conclusion is supported by reference to the purpose for which the Act was created. As is evident from its title, from its objects as expressed in s 3, and from the Explanatory Memorandum to the Environmental Protection and Biodiversity Conservation Bill 1998 (Cth), the purpose of the Act is to ensure the protection of the environment, while promoting ecologically sustainable development and conserving biodiversity through the responsible exercise by the Commonwealth of its obligations and powers to consider proposed actions in an efficient and timely manner.
119 As noted above, neither the operation and effect of s 42(c), nor the impact which the RFA forestry operations necessary to source wood for the pulp mill will have on the matters protected by Part 3, were considered by the Minister when making his controlled action and assessment approach decisions. Having intentionally excluded consideration of these matters, the Minister erred in law in relation to his decisions under ss 75 and 87 of the Act. Specifically, when considering the mandate in s 75(2B) that he must not consider any adverse impact of "any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply", the Minister erred in law by not considering whether and how Division 4 of Part 4 applied in these circumstances. The failure to address a relevant and clearly significant statutory question, and the resulting misconception of the nature of the statutory power to be exercised and the relevant considerations to be taken into account, constitutes an error of law, and as a consequence the decisions are invalid: see Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 (per McHugh, Gummow and Hayne JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 (per Gaudron J).
120 In my view, to discharge the statutory obligations arising in this case, the Minister was required to consider (i) whether the RFA forestry operations undertaken to supply wood to the pulp mill were "incidental to another action whose primary purpose does not relate to forestry" (see s 42(c)), and if they were, (ii) whether the RFA forestry operations have any "adverse impacts" on matters protected by Part 3 of the Act (see s 75(2)(a)). If this process of consideration had been followed, then on the proper construction of the relevant provisions it may have been open to the Minister to reach a different conclusion. Therefore, the failure to address s 42(c) means that it would not be futile for the question to be reconsidered by the Minister according to law. Accordingly, I am of the view that the decisions under ss 75 and 87 of the Act in this case are invalid because they are based on an error of law.
121 I agree with the observation of the majority that the approval process was progressed by the Minister with "studied haste". In circumstances where it was seen as expedient to comply, so far as possible, with the schedule urged by Gunns, it is not difficult to see how consideration of s 42(c) was overlooked both by the Minister and his advisors when he decided to exclude from consideration the impacts of the pulp mill on the matters protected by Part 3 of the Act.
122 Accordingly, the decisions of the Minister should be set aside, and the declaratory relief sought by The Wilderness Society should be granted.