Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd

udgment Parties: Wollar Progress Association Incorporated (Applicant) Wilpinjong Coal Pty Ltd (First respondent) Minister for Planning (Second respondent) Representation: Counsel: Mr G Kennett SC, with Ms J Davidson, barrister (Applicant) Mr J Kirk SC, with Mr D Hume, barrister (First respondent) Submitting appearance (Second respondent)

Solicitors: Environmental Defenders Office NSW (Applicant) Ashurst (First respondent) Department of Planning and Environment (Second respondent) File Number(s): 2017/247302

A: An Introduction to the proceedings and this judgment

1. This is a judicial review challenge to a State Government approval, on conditions, of a coal mining project ("the Project"), that approval having come from the State's "Planning Assessment Commission" ("PAC") on 24 April 2017.
2. The Project involves continuation and extension of approved open cut mining operations in the Mudgee district, both in terms of time and areas.
3. The active parties to the proceedings, namely the applicant organisation and the respondent mining company, helpfully agreed upon a Court Book ("CB"), which includes the relevant consent ("DC" - tab 4), and a Statement of Agreed Facts, dated 1 February 2018 ("SAF" - tab 10).
4. They also agreed upon a schedule of relevant legislative provisions (CB tab 6), a bundle of relevant authorities, a list of "real issues" (CB tab 5), a chronology (CB tab 9), and a three-volume Evidence Book ("EB" - Exhibit A1).
5. In the end, there were two grounds of challenge, and possibly a discretion argument, to be dealt with in this judgment.

B: The Evidence Book and other exhibits

1. Items numbered 1 to 33 in the EB are said to be "documents before the PAC".
2. Of particular significance are some EIS documents (items 2 to 5), some additional materials provided by the proponent (13, 14, 17, and 23), various submissions made (6 to 12, 18, 29, 31, 33, and 43), the Secretary's Environmental Assessment Report of November 2016 (16), the PAC Review Report of 20 December 2016 (22), and the Secretary's Final Assessment Report of March 2017 (25).
3. Items 34 and 35 in the EB are documents generated by the PAC - its Determination Report, and the DC.
4. Items 36 to 42 contain various other directions, requests etc. (items 36 and 41, having been the subject of objection by the company, were withdrawn by agreement).
5. Item 43 is a USB stick of submissions, made to the Department ("DPE") or the PAC regarding the Project, which refer to the Paris Agreement or Australia's commitments under it.
6. In addition, those active parties separately tendered, but without objection, a range of other documentary exhibits (see Tpp3-4):

• Exhibit A2 is a NSW government document entitled "NSW Climate Change Policy Framework" ("NSW CCPF"), dated November 2016.
• Exhibit A3 is a United Nations document entitled "Paris Agreement", dated simply "2015".
• Exhibit A4 is an Australian Government "Report under the United Nations Framework Convention on Climate Change", dated December 2017.
• Exhibit A5 is an Australian-crested document headed "Australia's Intended Nationally Determined Contribution to a new Climate Change Agreement/August 2015".
• Exhibit R1 is a document said to have come (on 8 February 2018) from the NSW Department of Planning website, entitled "Legislative Updates to the Environmental Planning and Assessment Act ... 1979 commence on Thursday 1 March 2018".
• Exhibit R2 is a document said to have come (also on 8 February 2018) from the website of the NSW PAC, entitled "Commission Members".

1. The applicant contends that Exhibits A2 to A5 are relevant "applicable state or national policies, programs or guidelines", regarding greenhouse gas emissions, which must be considered by a consent authority (Tp8, LL37-43).

C: The parties and the Project

1. The applicant association ("the association") is a not-for-profit volunteer-based incorporated association (SAF1), concerned with the well-being of residents of, and visitors to, the village of Wollar, and surrounding district, approximately 40km north-east of Mudgee, NSW. It objected to the company's Project proposal, made a submission on the EIS, and now seeks (summons in CB tab 1): 1 ... a. a declaration that the Consent is invalid and of no effect; b. an order quashing the decision of the Second Respondent to grant the Consent; and c. an order restraining the First Respondent from undertaking any development in reliance on the Consent. 2 An order that the First Respondent and Second Respondent pay the Applicant's costs of these proceedings. 3 Such further or other orders as the Court sees fit.
2. The first respondent company ("the company") is a wholly owned subsidiary of Peabody Energy Australia Pty Ltd, and it owns and conducts an open cut coal mine (SAF2) near Wollar, pursuant to a "Part 3A" approval, dating from 1 February 2006 ("the first approval" - project approval 05-0021), as subsequently modified on five (or six) occasions, the last occurring on 21 November 2014 (see map at EB, fol 21, and summary of modifications at fols 83-84, but c.f. fol 2038).
3. The mine is located immediately south of, and adjacent to, the Sandy Hollow Gulgong Railway.
4. The approved life of the mine under that 2006 approval was 21 years from the date of mining lease 1573, i.e. until 8 February 2027 (SAF21). Open cut mining commences with clearance and removal of vegetation. So far, mining has commenced in only six of seven approved pits, pit No 6 being the one yet to be mined.
5. The 2006 approval also requires the company to lodge each year an Annual Review of the mine's environmental performance. Claims in the company's material that this mine enjoys a good environmental reputation were not disputed by the association in argument.
6. The mine presently supplies 70% of its coal to AGL Macquarie's Bayswater and Liddell Power Stations, under a contract which expires in 2026. After 2026, the coal from the mine is likely to be mid ash thermal coal, sold on the export market (SAF40 and Tpp12-13).
7. The purported 2017 consent would permit the physical extension of the mine, and the continuation of its current and expanded operations until 31 December 2033 (SAF23).

D: The company's EIS

1. The main text of the EIS is item 2 in the EB (fols 9-578), but much important supporting detail appears in the three appendices to it which were included in the EB (at items 3 to 5 - see [23] above).
2. The EIS contains (at EB fols 28-29) a helpful table (ES-1) summarising the already approved mine, and what was comprised in the "extension" Project as submitted. That table noted, e.g., the addition of an 8th open cut pit, projected increases in the production of waste rock and thermal coal, a seven year extension in mine life, and an increase in peak operational workforce from 550 to 625.
3. The EIS's "Project Summary" (at EB fols 47 to 54) amplified some of those details - the "incremental extensions" to existing open cut pits amount to approximately 500 ha, and the area of the new open cut pit (No 8, east of the present 7) is approximately 300 ha.
4. The components and stages of the Project are described in yet more detail in Section 2 of the EIS (commencing at EB, fol 63). That section notes (fol 66) the company's intention that the earlier consent be surrendered, "so that the mine operates under only one consent", with (fol 71) ongoing review and revision, in consultation with regulators, of all its environmental "strategies, plans and programmes".
5. The EIS contains many references to GHG emissions, climate change, and biodiversity matters (SAF28 to 35), and clearly addressed "cumulative impacts" of the Project (SAF35).
6. The EIS also relevantly adopted (at EB fols 279-281) an international protocol, which carefully defines three "scopes" of greenhouse gas emissions - "direct", "electricity indirect", and "other indirect" emissions (see also fols 639-643). It is acknowledged that scope 3 emissions, or "downstream" emissions, can be difficult to estimate (Tpp13-14).
7. Overall, the proponent relies upon a "conservative" estimate by Todoroski Air Sciences (at EB item 3, fol 582) that over the life of the Project it will emit 0.02% of Australian GHG emissions (see also SAF34). Todoroski states: A conservative estimate of annual average greenhouse gas emissions over the life of the Project is 0.13 million tonnes of carbon dioxide equivalent (Mt CO2-e) material (Scope 1 and 2), which is approximately 0.02 per cent (%) of the Australian greenhouse emissions for the 2013 to 2014 period. When compared to a number of mining operations in New South Wales, the Project would have a relatively low greenhouse gas emission rate per tonne of run-of-mine coal extracted, producing approximately 0.01 tonnes of carbon dioxide equivalent material per tonne of run-of-mine coal (t CO2-e/t ROM).

E: The "live" challenges remaining to be addressed

1. At the centre of Ground 1 of the challenge defined by the association's summons is cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries 2007 ("the Mining SEPP"). The association pleads that the PAC failed to consider matters required by that sub-clause.
2. The aims of that SEPP are set out in cl 2, in these terms: Aims of Policy The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries: (a) to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and (b) to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and (b1) to promote the development of significant mineral resources, and (c) to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources, and (d) to establish a gateway assessment process for certain mining and petroleum (oil and gas) development: (i) to recognise the importance of agricultural resources, and (ii) to ensure protection of strategic agricultural land and water resources, and (iii) to ensure a balanced use of land by potentially competing industries, and (iv) to provide for the sustainable growth of mining, petroleum and agricultural industries.
3. Clause 14 provides (emphasis added): Natural resource management and environmental management (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following: (a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, (c) that greenhouse gas emissions are minimised to the greatest extent practicable. (2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions. (3) Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.

F: A Chronology of major relevant events

1. I have, following my review of all the material, supplemented the agreed chronology (CB tab 9) to arrive at what is now contained in this section of the judgment.
2. The mine was approved by the then Minister for Planning, on 1 February 2006 ("05-0021" - SAF4 to 12), and mining operations apparently commenced in about September of that year.
3. On 14 September 2011, the then Minister for Planning and Infrastructure (Mr Hazzard) issued an instrument of delegation, under s 23 of the EPA Act, and a purported direction to the PAC, under sch 3 to the EPA Act, and cl 268P of the EPA Reg (SAF58 and 59).
4. On 23 October 2013, the then Minister for Planning and Infrastructure purported to issue a direction to the PAC that it be constituted by the same members, nominated by the chairperson, "in exercising review and determination functions in respect of the same proposal, including for Part 4 applications under the" EPA Act (SAF60, c.f. SAF59).
5. The fifth modification to the original consent was approved by the PAC, as delegate of the then Minister for Planning and Infrastructure, on 7 February 2014 (SAF13 to 20).
6. On 22 September 2014 (EB fols 569-570), the Division of Resources and Energy ("DRE"), in the NSW Department of Trade & Investment, Regional Infrastructure & Services, wrote to the DPE, expressing support for the Project, commenting (fol 570): DRE supports the proposed Wilpinjong Mine Extension Project as a responsible utilisation of the State's valuable coal resources and supports the project proceeding through the State's comprehensive development assessment and approval process.
7. The consideration of the Project commenced in November/December 2014, with the "Secretary's Environmental Assessment Requirements" ("SEARs") being provided to the company on 9 December 2014 (SAF25, and EB item 1).
8. In August 2015, Australia expressed its desire for the UN climate change conference in Paris "to deliver a strong and effective new global climate change agreement, applicable to all UNFCC Parties" (Exhibit A5).
9. During January 2016, the company's State Significant DA (dated 8th), and supporting EIS documents (some dated November 2015), were lodged (SAF26-27, and EB items 2 to 5).
10. The EIS went on public exhibition 27 January-10 March 2016 (SAF27), and attracted 752 submissions. (Some received after that period are also included in hard copy in the EB (see [7] and [10] above).

G: The Determination Report Considered

1. I have already quoted (at [100]) from the Executive Summary of the PAC's Determination Report of 24 April 2017, but some more of that crucial document must now be noted.
2. It specifically urges its readers (at fol 1987) to read it "in conjunction with" its December 2016 Review Report, and to do so is important. The Court cannot consider PAC's Determination Report in isolation from all that preceded it, i.e. from the material which I have closely examined, and carefully summarized, above. For example, when dealing with "downstream omissions", Mr Kirk commented (Tp50, LL2-5) that a particular point was "not picked up in the review report because the review report was the next step in the PAC process. Rather the PAC picked it up in its determination report indicating that it had carefully gone back and looked at the materials".
3. The PAC records (e.g., at fol 1980) that it had (my emphasis): ... examined the documents referred to in the Terms of Reference set out by the Minister, including the [EIS], submissions and Response to Submissions. The Commission also received written submissions, held a public hearing, visited the site and surrounds, and met with the Applicant, the Department of Planning and Environment (the Department) and Office of Environment and Heritage (OEH). The Commission notes that the preliminary Secretary's Environmental Assessment Report (SEAR) submitted as part of the review was a preliminary assessment of the merits of the project. The assessment considered the potential impacts of the project with regards to noise, blasting, air quality, social, biodiversity, water resources, heritage, final landform, rehabilitation and economic impacts. Other issues identified in the preliminary SEAR include traffic and transport and visual impacts.
4. It also records that it made 31 recommendations ([95] above) all but one of which (one concerning Aboriginal consultation) were accepted and adopted by both DPE and the company.
5. The DA, the EIS, the DPE's work, and the PAC's own work, and relevant interactions (e.g., at public meetings), are all comprehensively recorded (fols 1982-1986) before the PAC records its consideration (s 4, fols 1987-1994, and s 6, fols 1995-1996) of, and its response to, a range of community issues (s 5, fols 1994-1995). SAF50 to 52 state: 50. In the PAC's Determination Report, the PAC stated (in section 4) that it had considered carefully all information submitted by the First Respondent, DPE's PAR and FAR, the PAC Review Report, advice and recommendations from government agencies, written and verbal submissions from public agencies and from the public, and relevant matters for consideration specified in section 79C of the [EPA Act] including any relevant environmental planning instruments. 51. In Appendix 3 to the PAC's Determination Report, which is a summary of issues presented at the public meeting held on 11 April 2017 in Mudgee, the Project being contrary to the Paris Agreement and targets set by the NSW Government, and climate change impacts are listed as examples of comments made during the public meeting and in written submissions. 52. The PAC was satisfied that the impacts and mitigation methods had been appropriately assessed, that the Project would, subject to the mitigation measures proposed by the First Respondent and conditions of consent recommended by DPE, have acceptable impacts, and accepted DPE's recommendation that the Project be approved.

Ground 1

1. At the centre of the Ground 1 challenge is the Mining SEPP, cls 2 and 14 of which I have already set out ([57]-[58]).
2. The association alleges that the PAC failed to consider matters required by cl 14(2).

The association's case

1. The association claims (subs pars 3 and 4a) that, contrary to cl 14(2), "the PAC failed to consider an assessment of the [GHG] emissions of the development (including downstream emissions), including by having regard to any applicable State or national policies, programs or guidelines before it granted development consent".
2. Section 79C(1)(a)(i), at the relevant time, required a consent authority (subs par 18) to have regard to the provisions of any environmental planning instrument that applies to the land to which a development application relates. Such provisions are required to be taken into account as fundamental elements in, or focal points of, the decision-making process and are "entitled to significant weight in the decision making process", even though they may not ultimately be determinative: Zhang v Canterbury City Council ("Zhang") (2001) 51 NSWLR 589 at [75]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc ("Warkworth v Bulga") (2014) 86 NSWLR 527; 200 LGERA 375; [2014] NSWCA 105, at [215]-[216].
3. Accordingly, the PAC was required to have regard to the Mining SEPP.
4. The term "downstream emissions" is not defined, but is commonly understood to denote the greenhouse gas emissions relating to sold goods and services and thus caused by end-users' use of the product (e.g. coal) produced by a project (subs par 19).
5. Relevant to this consideration are the requirements of: 1. the Paris Agreement, in respect of which Australia adopted 2005 emissions as a baseline and a target reduction of 26-28% by 2030; and 2. the NSW CCPF's "long term aspirational objective of net zero-emissions by 2050" (subs 20, and 22-23).
6. The association submits (pars 24 and 25): 24. The obligation imposed by cl 14(2) of the Mining SEPP is not limited to considering whether to attach conditions to a development consent but applies more broadly in determining a development application for the purposes of mining. Accordingly, the PAC was required under s 79C(1)(a)(i) to consider an assessment of greenhouse gas emissions (including downstream emissions) of the Project when assessing the development itself, not simply in deciding what conditions (if any) to attach to the consent in accordance with cl 14(1). 25. It was not sufficient for the purposes of s 79C(1)(a)(i) for the PAC to simply record that it had considered the provisions of "any relevant environmental planning instruments" (Determination Report p 9). In the case of an instrument which sets out a binding requirement for decision-making, such as cl 14(2) of the Mining SEPP, having proper regard to the instrument involves complying with that requirement. By force of s 79C(1)(a)(i) and cl 14(2) of the Mining SEPP, a relevant assessment of greenhouse gas emissions (including downstream emissions) was a mandatory relevant consideration. and (par 26) that Zhang means that the requirements of the policy documents must "be treated as a 'fundamental element in' or a 'focal point' of the decision-making process": Zhang, at [70]-[77], and Warkworth v Bulga, at [192]-[226].

The company's response

1. The company's submissions, in response, on Ground 1, emphasise that the PAC has no duty to give reasons, nor to explain the weight it attributes (c.f. the situation in Warkworth v Bulga - see Tpp30ff).
2. The company submits that the association "misconstrues" cl 14(2), saying (subs 5) that it does not require "a very detailed assessment of the kind envisaged" by par 34 of its submissions, "involving consideration of broad and aspirational policy targets for overall greenhouse gas (GHG) emissions over the coming decades".
3. The policy documents adopt serious reduction targets, but do not yet prescribe policies as to how they are to be achieved, and a consent authority determining a project with a life to only 2033 cannot be expected to achieve "an aspiration for 2050" - "How is a PAC to make a decision about whether Australia's commitment to a 26 to 28% reduction by 2030 is best achieved by not allowing this coal mine in New South Wales, compared to all the other coal mines in Australia, compared to car policy, compared to electricity policy, compared to all the other issues which arise in relation to that target?" (see Mr Kirk SC, at Tp40, L10-p41, L5).
4. Mr Kirk submitted (Tp60, L48-p61, L18 - my emphasis): We dispute that the two policies identified, the Paris Agreement and the New South Wales policy, can be applicable, that is picked up by the second part of cl 14(2), because they can't meaningfully guide the task of the consent authority. They raise fundamentally policy considerations. We say that cl 14(2), what it requires first is an assessment, the commission must have before it an assessment fundamentally quantitative of greenhouse gas emissions including downstream emissions. There plainly was such an assessment. That assessment is not required to discuss policies as the respondent suggests. The applicant's three criticisms which really perhaps add up to saying it didn't discuss the policies enough, that is misguided. It didn't indicate where the coal was to be burnt, that is factually unsustainable. In any event, not required by cl 14(2). The second part of cl 14(2) requires the consent authority to consider applicable policies. As I've said, we dispute Paris and the framework of New South Wales were relevant but even if they were, even if they are applicable policies, there is ample material explained better, with respect, than my learned friend explained it in the materials before the PAC, which they said they took into account.

Ground 2

1. The scope of the extension project includes continuation of the currently approved operations, which themselves include the as yet uncommenced mining of pit No 6 of the approved 7.
2. As formulated in its submissions (at 4b and 44), the association's second ground of challenge says that (emphasis added): 4. ... b. the PAC failed to consider the likely impacts of the whole of the development the subject of the application before it, as required by s 79C(1) ... ... 44. ... when considering likely impacts of the Project on the natural environment, specifically the likely impacts of the project on White Box Yellow Box Blakeley's Red Gum Woodland (an identified endangered ecological community, EEC), the PAC considered only the impact of clearing of the stands of this EEC present in the proposed extension area for the mine's operations. In this respect, it misunderstood the scope of the Project in relation to which it was required to consider relevant matters in s 79C(1) of the [EPA Act]. The PAC thus asked itself the wrong question and constructively failed to exercise its jurisdiction, by failing to consider the likely impacts of the whole of the development the subject of the application before it on the natural environment.

The association's submissions

1. The association's submissions say (in par 43, immediately before par 44 quoted above) that the PAC: 43. ... understood generally that the scope of the Project for which development consent was sought included the continuation of operations within the area of the mine's existing approved footprint.
2. As Mr Kennett submitted (Tp24, LL42-46, and p25, LL19-21): ... what 79C(1) requires to be considered is the impact of the whole of the development, that is, here, in a case like this, the mine as proposed to be expanded, and with the proposed extended lifespan, but including - to the extent that it hasn't already been done - that which is currently approved by the existing approval. ... ... the PAC, in its consideration under s 79C, needed to have regard to the whole of the mining operation as proposed to be expanded.
3. As he noted (Tp25, LL45-47), the EIS expects "that the project would require clearance of approximately 354 hectares of native vegetation in the project open cut extension and infrastructure areas", but (Tp26, LL15-16) "is only directing itself at clearance of certain types of vegetation in the area of extension", and (LL31-32) "has not taken account of the clearing, if any, yet to be done within the existing approval area", whereas (Tp27, LL13-14) "all of it ... needed to be canvassed in order to comply with s 79C".
4. The association complains (par 46) that the PAC simply adopted the EIS's quantification of the areas of disturbance of native vegetation, including EECs, and did not even mention EECs in its Determination Report (EB item 34). It says (subs par 49) that: ... It may thus be inferred that the PAC regarded the clearing of the White Box Yellow Box Blakeley's Red Gum Woodland EEC as a relevant factor only to the extent that it was to take place in the Project's extension area. In confining its consideration in that way, the PAC failed to discharge its obligation to consider each element of s 79C(1) of the [EPA Act], as relevant, in respect of the whole of the development the subject of the development application.

The company's response

1. As Mr Kirk said (Tp62, LL46-50), this is not a "wrong question" ground, but another "failure to consider" ground, and (Tp66, LL12-14) "where you're dealing with a very complex DA for a very complex project, the EIS is going to be a formidable document, yet will always be capable of criticism as not having addressed X, or not having addressed it enough".
2. Some of the relevant woodland is covered by the existing approval and so "could (and would) be cleared anyway [before 2026] even if the new consent was not granted, and even though the conditions under the Previous Approval relating to offsets for such clearing were reiterated in the Consent" (subs 35).
3. On this ground, the company's primary submission is (subs 36): The argument is artificial, and should be rejected. The key steps in the argument are (i) that the Project was likely to have an impact on White Box Yellow Box Blakeley's Red Gum Woodland on land which had been the subject of the Previous Approval, and the PAC was legally obliged to consider this; and (ii) the PAC failed sufficiently to consider those likely impacts. The Applicant has not made out either step. Even if it had, the Court should refuse relief in its discretion, including because of the lack of utility of such relief given that the clearing of the affected area can go ahead regardless.
4. The PAC's duty under s 79C(1)(b) is to consider the likely impacts, including likely environmental impacts on the natural environment, of the development which is the subject of the DA being considered, and the company submits (par 40) that the association has not established that fulfilment of that statutory duty "required consideration of the level of detail of the effect on the identified types of woodland in the area that was already covered by the Previous Approval. It is most unlikely that the Parliament would be taken to have intended such detailed consideration".
5. The company's submissions continue (par 41): As to any uncleared woodlands that remained at the time of the PAC's decision in the area of the Previous Approval, it is hardly surprising that the EIS and related materials did not address the effect of clearing such areas with great particularity, because they would be cleared anyway, regardless of whether the new consent was granted. Time is not short in this regard - the Previous Approval ran to 2026, and any remaining woodlands could have been cleared rapidly. Condition 9 of the Consent requires surrender of the Previous Approval (EB 2009), but if the Consent is invalid, as the Applicant argues, then the Previous Approval will remain in place and the woodlands in question could be cleared.

I: Consideration

1. I have earlier referred ([130]) to Griffiths J's decision in Malek Fahd, to which both sides made reference during argument.
2. Because I am persuaded that I ought follow His Honour's approach, it is convenient now to set out in more detail what His Honour said (at [40] to [43], and [46] to [48], emphasis added): 40. First, in circumstances where the delegate has voluntarily provided a detailed statement of reasons for her decision, that statement will provide a central focus for determining whether or not the conceded mandatory relevant consideration was taken into account by her. That is not to lose sight, however, of the well-established and important need to avoid an over zealous approach in reviewing such a statement and with an eye keenly attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 1 (sic - 185 CLR 259)). Such restraint is essential to preserve the legitimacy of judicial review. 41. Secondly, in cases where a statute explicitly lists mandatory relevant considerations and also obliges the decision-maker to give reasons, it has been held that an inference might be drawn that a decision-maker has failed to consider an issue because of a failure expressly to deal with that issue in the reasons. Thus, for example, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE), at [47] the Full Court said: 47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. Although those observations were directed to a situation where a tribunal was statutorily obliged to consider particular matters and also had a statutory obligation to provide reasons for its decision, it seems to me that they are relevant and provide guidance in a case such as here, where it is conceded that the decision-maker was bound to consider a particular matter and the decision-maker has voluntarily provided a reasonably detailed written statement of reasons for her decision. 42. There is one important qualification. It relates to the need for greater caution in drawing inferences from omissions in a statement of reasons which has been voluntarily provided by a decision-maker and not in discharge of a statutory obligation to do so. The High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) highlights the importance of paying close regard to the precise terms of a statutory provision, such as s 430(1) of the Migration Act 1958 (Cth), which imposes a statutory obligation on a decision-maker to provide a written statement which sets out various matters and not just the reasons, such as a requirement to set out the findings on any material questions of fact. The precise terms of such a statutory obligation necessarily provide a critical framework in determining, for example, what legal significance should attach to the failure of such a decision-maker to make findings on every matter of fact which is objectively material to its decision. Caution is required in drawing adverse inferences from omissions in a statement of reasons which is volunteered by a decision-maker and absent any immediate legal obligation to do so because there is no detailed legal framework of the kind which operated in cases such as Yusuf and WAEE (and see also s 25D of the Acts Interpretation Act 1901 (Cth)). Having said that, however, the applicant's complaint here is not that the delegate failed to make relevant findings of fact as such, but rather that she failed to engage in an active intellectual process in relation to, relevantly, the practical effect of delaying the Commonwealth's funding in respect of the students of the School (see the observations of McHugh, Gummow and Hayne JJ in Yusuf at [75]). 43. Thirdly, in cases where a statute has an explicit list of mandatory relevant considerations and also obliges the decision-maker to give reasons, the Court has emphasised that it is not only prudent, but also desirable, for the decision-maker explicitly to address the mandatory relevant considerations in its reasons for decision (see, for example, Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 229 FCR 290 at [21]-[22] per Flick J and at [31] per Katzmann J). It is difficult to see why the position should be different in any significant respect in circumstances where it is conceded that a particular matter is a mandatory relevant consideration (even though it is not explicitly stated to be so in the enabling legislation) and the decision-maker voluntarily provides a detailed statement of reasons, as is the case here. In either scenario, if the decision-maker fails directly to address a mandatory relevant consideration in the body of the statement of reasons, there is a risk that it might reasonably be inferred that the particular consideration has not been taken in account. ... 46. Sixthly, the applicant carries the burden of proof of demonstrating, on the balance of probabilities, that an administrative decision-maker has failed to take into account a mandatory relevant consideration (see, for example, SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ). 47. Seventhly, it is relevant to note the current state of legal authorities on the issue of what amounts to "consideration" of a mandatory relevant consideration. The Full Court recently discussed many of the authorities in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [31] ff. The Court acknowledged the danger of using epithets such as give "proper, genuine and realistic consideration" to a mandatory relevant consideration (see at [34]). The Court also identified at [45] the many cases which endorse the principle that when a decision-maker is required by its statute to consider mandatory criteria, the decision-maker "must engage in an active intellectual process directed at that… criteria". In circumstances where the Minister has conceded the existence of the mandatory relevant consideration in the terms set out in [36(b)(ii)] above, it is appropriate to address the relevant question of fact on the basis that the delegate was required to engage in an active intellectual process directed at that conceded mandatory relevant consideration. 48. Eighthly, although there is no "necessary difficulty" with an assertion in a statement of reasons to the effect that the decision-maker has "considered all matters" or, as is the case here, an assertion that "[A]fter consideration of the material taken into account" (which material is identified in [13] of the 6 April 2017 letter), such an assertion does not shield from scrutiny such consideration as was in fact given to the material (see Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [32] per Flick, Barker and Rangiah JJ). Other authorities have indicated that, merely because a matter has been "touched upon" by a decision-maker, does not necessarily mean that it has been taken into account or considered in the relevant sense ... Necessarily, close attention must be given to the particular facts and circumstances of the case.

J: Conclusion and Orders

1. The association's summons should be dismissed.
2. No question of discretion or relief arises, and further argument is required only on costs, if disputed between the parties.
3. The Orders of the Court are: 1. The association's summons is dismissed. 2. The question of costs is reserved. 3. All Exhibits and the bundles of authorities provided to the Court are returned.

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