UUDGMENT NO, send Sel 5 2 eesecrecesecons eseseseasose CATCHWORDS ADMINISTRATIVE LAW - statement of reasons - decision to grant export licence for woodchips ~ access to reasons after licence expired - whether provision of statement would be of practical utility to applicant - whether forensic utility is the test. Administrative Decisions (Judicial Review) Act 1977, s.13 Export Control Act 1982 Export Control (Unprocessed Wood) Regulations 1986 United Airlines v Secretary, Department of Transport and Communications (1990) 26 FCR 598 urns v Australi ional] University (1982) 61 FLR 76. NORTH T NT IL_IN RATED v MINISTER FOR RESOURCES No. NG 614 of 1994 Sackville J. 7 October 1994 Sydney. RECEIVED 14 OCT 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 614 of 1994 GENERAL DIVISION BETWEEN: NORTH COAST ENVIRONMENT COUNCIL INCORPORATED Applicant AND: MINISTER FOR RESOURCES Respondent CORAM: SACKVILLE J. PLACE : SYDNEY DATE: 7 OCTOBER 1994 MI E F_ ORDER THE COURT ORDERS THAT: 1. The respondent's motion be dismissed. 2. The respondent pay the applicant's costs of the motion. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 614 of 1994 GENERAL DIVISION BETWEEN: NORTH COAST ENVIRONMENT COUNCIL INCORPORATED Applicant AND: MINISTER FOR RESOURCES Respondent. CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 7 OCTOBER 1994 NS FOR NT Introduction The applicant on this Notice of Motion is the Minister for Resources, who is the respondent to the principal proceedings. I shall refer to him as "the Minister". The Minister seeks an order dismissing the principal proceedings, on the ground that there is no practical utility in continuing them. The applicant in the principal proceedings (the respondent to the Notice of Motion) is North Coast Environment Council Incorporated. I shall refer to it as "North Coast". North Coast claims relief in these proceedings under s.13(4A) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD (JR) Act"). In particular, North Coast seeks a declaration in the following terms: "[Tjhat the Applicant was entitled, in respect of the decision ("the Decision") of the Respondent to grant an export licence pursuant to the Export Control Act to Sawmillers Exports Pty Limited so as to allow that company to export wood chips for a period of three months from 30 June 1994, by notice in writing dated 11 July 1994, to the Respondent to request ("the Request") the Respondent to furnish a statement ("the Statement") in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision." North Coast also seeks an order (using the language of the proposed declaration) that, within 28 days, the Minister furnish a Statement in answer to the Request in respect of the Decision, as required by Sections 13(1) and (2) of the AD (JR) Act. The Facts The evidence adduced for the purposes of the motion shows that the Minister granted Sawmillers Exporters Pty Ltd ("Sawmillers") a woodchip export licence to enable the company to export hardwood woodchips. The period of the licence was for three months, commencing on 1 July 1994 and expiring on 30 September 1994. The licence was granted under the Export Control] Act 1982 and, more particularly, regulation 9 of the Export Control (Unprocessed Wood) Regulations 1986. The licence was granted subject to a number of conditions. The nature of these is not relevant for present purposes, except to note that the licence allowed the export of up to 125,000 tonnes of woodchips, the sources for which are identified in the licence. An undated letter from the Minister to Sawmillers' parent company indicates that the licence was issued in order to permit Sawmillers to continue export operations, pending finalisation of the environmental assessment process. It appears that the Minister intended (and presumably still intends) to consider advice concerning the EIS prepared in relation to Sawmillers' proposed export activities. On 11 July 1994 the solicitors for North Coast requested the Minister for Resources, pursuant to s.13 of the AD (JR) Act, to provide a statement in writing setting out findings and giving the reasons for the decision to vary Sawmillers' export licence so as to allow the export of woodchips for a further three month period from 30 June 1994. On 9 August 1994 the solicitors for North Coast advised the Minister that the period of 28 days provided for in s.13(2) for the provision of reasons had expired. The letter requested the reasons as a matter of urgency. On 15 August 1994 the Minister replied. He indicated that he did not accept that North Coast was an agrieved party for the purposes of the AD (JR) Act and accordingly did not accept that North Coast was entitled to reasons under that Act. Nevertheless, the Minister provided certain limited information to North Coast. The letter pointed out that a former Minister for Resources had approved, in 1993, an application by Sawmillers to export up to 500,000 tonnes of hardwood woodchips during 1994. The letter stated that that licence was consistent with an earlier decision that the export of woodchips produced from sawmill and _ logging residues, from material harvested in northern New South Wales, did not have a significant environmental impact. The letter went on to say that Sawmillers had been asked to prepare an EIS on the designated operations and that the previous licence covered only the period until 30 June 1994, the then expected date for finalisation of the EIS. Following delays in the EIS process, the Minister had decided to issue Sawmillers with an export licence in June to enable the company to continue export of woodchips from designed sources until 30 September 1994. This period was required for the EIS to receive appropriate consideration. On 13 September 1994 North Coast commenced the principal proceedings. It will be noted that the licence granted to Sawmillers, in respect of which North Coast had sought relief in these proceedings, expired on 30 September 1994. Thus the licence is no longer in force. However, Mr Johnson, on behalf of the Minister, made two concessions on matters of fact relating to the possible future grant of licences to Sawmillers. These concessions were as follows: (i) Sawmillers had made application for a new woodchip export licence under the Export Control Act 1982 and the Export Control (Unprocessed Wood) Regulations 1986. (ii) The issue of a new licence was receiving consideration by the Minister. Mr Johnson indicated that no information was available as to whether a new licence had in fact been issued. The Minister's Contentions Mr Johnson contended that there was no utility in the substantive application brought by North Coast. The period of the licence granted to Sawmillers had expired. It was clear that a further application by Sawmillers was under consideration. However, if that application resulted in the grant of a fresh licence it was open to North Coast to seek reasons in respect of that decision, and, if so advised, to challenge the decision. It was not clear that North Coast would be an ""agrieved person" for the purposes of any challenge to a future decision under the AD (JR) Act. Mr Johnson also relied upon the fact that it could not be ascertained whether any future decision would result in a licence for a short or long period. The evidence showed that the Minister was awaiting the assessment of the EIS. The result might be that Sawmillers would receive a long term licence for the export of woodchips. Alternatively, a further licence might be granted for a shorter period to enable additional investigations to be undertaken. There was nothing to indicate, according to Mr Johnson, that the same considerations that applied to the decision to grant the licence for a three month period expiring on 30 September 1994 would be present in relation to any decision to grant a licence in the future. United Airlines Case Mr Johnson relied principally on United Airlines v Secretary, Department of Transport and Communications (1990) 26 FCR 598, a decision of Hill J. In that case, United applied for approval for the operation of seven services per week on a particular flight route. The Secretary approved the operation of two services only per week, instead of the seven applied for. United claimed that this constituted two decisions - that is, one to refuse the application for seven services and a second decision to approve two services. The Secretary maintained that there was only one decision. In any event, United sought judicial review of the entirety of the first decision. After commencing proceedings, United requested the Secretary to provide a statement of reasons pursuant to s.13 of the AD (JR) Act. The Secretary then decided to revoke the first decision. United sought judicial review of the second decision (that is, the revocation decision). United also sought to compel the Secretary to provide a statement of reasons, pursuant to s.13 of the AD (JR) Act, in relation to both the first and second decisions. Hill J. dismissed United's applications for statements of reasons. His Honour noted that the jurisdiction of the Court to compel the performance of the duty created by the AD (JR) Act is discretionary. His Honour attributed the source of the discretionary power to either s.23 of the Federal Court of Australia Act (Cth) 1976 or s.39B of the Judiciary Act (Cth) 1993. Whatever the source, it was common ground in the proceedings before me that there was a discretion whether or not to compel the performance of any duty. Hill J. refused to order the decision maker to furnish a s.13 statement in respect of the first decision because to do so "would appear to serve no useful purpose". Counsel for United, when asked what practical purpose the making of an order could serve said that it would permit United to tailor its approaches in future applications to the decision-maker and would arm United with evidence for the future to show that the decision maker had not acted bona fide: Ynited Airlines v Department of Transport and Communications, at 607. The key passage in his Honour's reasons is as follows: "In my view, the Court as a matter of discretion should not, except perhaps in very exceptional circumstances, which do not exist here, order a s.13 statement to be furnished where the decision to which the statement relates has been, or as in the present case inevitably will be, set aside. If, the decision being set aside, the Secretary makes a decision with which United is again dissatisfied, United may then seek reasons for that decision. It is difficult to see how a statement setting out the findings on material questions of fact and giving reasons for a decision which was admittedly vitiated by error can be of any assistance to United in such a case. If, when that decision is made, United seeks to make out a case of bad faith, orders may be made for discovery or interrogatories as may at that time be appropriate. If United now applies for the approval of another timetable, it is difficult to see how the matters required to be included in a 6.13 statement in respect of the first decision, admittedly vitiated by error, will assist it in the framing of that application. In particular it may be assumed that the Secretary will not again make the same error of law as he made in coming to the first decision." If attention is focussed upon the possible forensic utility of the s.13 statement to the person or body seeking a s.13 statement, it is clear that there are important distinctions between United Airlines and the present case. e In United Airlines the first decision had been revoked and had never been operative. Here the licence granted to Sawmillers was in force for the period 1 July 1994 to 30 September 1994 and had never been revoked. Export of woodchip products was undertaken by Sawmillers pursuant to the licence granted by the Minister. e In Ynited Airlines the revoked decision was admittedly "vitiated by error": 26 FCR at 606. The reasons for the erroneous decision were therefore considered by Hill J. not to be relevant to any fresh decision, since it was to be assumed that the same error would not be repeated. By contrast, the factors that influenced the Minister to grant the licence to Sawmillers for a three month period in June 1994 might well influence a decision to grant a fresh licence to the company. Of course, as Mr Johnson correctly pointed out, different considerations might well apply, especially if the environmental assessment process is complete. But the position by no means as clear-cut as in United Airlines. A Forensic Purpose Mr Basten QC, who appeared with Mr Williams for North Coast, contended that a s.13 statement in the present case might well serve an important forensic purpose. The evidence showed that North Coast was concerned about what it regarded as the issue of woodchip export licences without appropriate EIS statements. I make no judgment about whether this concern is or might be well founded. I do infer from the evidence, however, that North Coast would consider challenging a decision to grant a further licence if such a decision is made. One of the purposes underlying s.13 of the AD (JR) Act is to enable persons affected by a decision to see what was taken into account in order to assist in determining whether the decision should be challenged: United Airlines, at 606; Burns v Australian National University (1982) 61 FLR 76, at 85; ecretar Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77, at 87-88, per Hill J. It cannot be said with certainty that a s.13 statement will be of direct relevance to North Coast (assuming for present purposes that it has standing) in deciding whether or not to challenge a decision to grant a further licence to Sawmillers. However, the statement could well be significant for this purpose. In this connection it is relevant to observe that there may be considerable practical difficulties in challenging an export licence issued for a limited period such as three months. There is no suggestion in the present case that the Minister granted the licence for three months in order to limit the opportunities for judicial review; on the contrary the evidence shows that the period was limited because the environmental assessment process had not been completed. Nonetheless there is clearly a possibility that a fresh licence will also be granted for a limited period. The provision of a s.13 statement in respect of the decision to grant a licence from July to September 1994 may be one way of permitting North Coast to make an informed judgment as to whether a timely challenge can and should be made to a fresh licence. None of this is intended to suggest that North Coast would succeed in any challenge to a fresh licence. Nor is it intended to encourage any such challenge. The point is that, if the test of practical utility is related to the forensic use that might be made of a s.13 statement, in my view such a statement cannot be said to be of no value to North Coast. Accordingly, I think it would be inappropriate to dismiss the proceedings on discretionary grounds at this stage. tility for non-forensic pu: ses Thus far I have considered the position on the assumption that it is necessary for North Coast to show some possible forensic utility in its claim to a s.13 statement. The authorities suggest, however, that the purpose underlying s.13 of the AD (JR Act is not confined to providing reasons that may be of assistance to the forensic setting. In Burns _v_ Australian National University, at 85-86, Ellicott J. adopted as the rationale underlying s.13 the explanation that has been given by the Administrative Council in an Explanatory Memorandum. In his Honour's paraphrase the reasons included the following: "(a) to overcome the real grievance persons experience when they are not told why something affecting them has been done; (b) to enable persons affected by a decision to see what was taken into account and whether an error has been made so that they may determine whether to challenge the decision and what means to adopt for doing so." This passage was cited with approval by Hill J. in Secretary, Department of Foreign Affairs and Trade v_ Boswell, at 88. In Minister for Immigration v Taveli (1990) 94 ALR 177, at 193, French J. said that: "[ijt is too narrow a view of the policy of the section, however, to suggest, as did counsel for the respondent, that it was enacted only for the benefit of those who are affected by decisions and who may wish to challenge them. As Professor Pearce has observed, it was implicit in the recommendations of the Commonwealth Administrative Review Committee for the enactment of such a provision, that the giving of reasons will not only reveal defects in the decision but will also lead to better decision- making by requiring administrators to identify for themselves the reasons for their decisions: Pearce, Commonwealth Administrative Law (1986), para 357. This is consistent with the evident policy of the legislative scheme for review of administrative decisions reflected in the Administrative Appeals Tribunal Act 1975, the Ombudsman Act 1976, Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982. They provided significantly new opportunities for access to the processes and materials underlying official decision-making and substantially widened the bases and mechanisms for review. And although the facilities provided for redress against unlawful or unfair or erroneous decision-making are important elements of these statutes, their overreaching objective must be to improve and maintain standards of official fairness, rationality and compliance with the law. It is against that broad policy background that s.13 is to be considered." See also 94 ALR at 201, per Hill J. and at 179, per Davies J. The question of North Coast's standing as a "person aggrieved" is in dispute in the principal proceedings. Indeed, the first form of relief sought by North Coast is a declaration as to its entitlement to receive a statement of reasons. However, North Coast's standing is not in issue for the purposes of this motion. I think it appropriate to approach the question of utility on the assumption that North Coast ultimately will be able to show that it is a "person aggrieved". Of course, I express no view as to whether it will in fact be able to do so. On that assumption, it seems to me that, in the circumstances of the present case, there is utility in North Coast, as a person aggrieved by a decision to issue a woodchip export licence, in seeking reasons for the grant of the licence. The request for a statement under s.13 was made before expiration of the licence. As Mr Johnson has conceded, the question is not one of power for the purposes of the present application, but of discretion. The policy underlying s.13 reflects the principles that the giving of reasons will encourage better decision-making and will also overcome the grievances that people experience when government decisions affecting them are not explained or are not explained adequately. While the period covered by the licence has now expired, the licence was acted upon and woodchips were exported during the period of the licence. On the assumption that North Coast 1s capable of being a "person aggrieved" for the purpose of seeking a s.13 statement, it seems to me that there is or may be utility in requiring a statement of reasons. In particular, such a statement will place North Coast in a position to understand the reasons for the decision to grant an export licence in which, by hypothesis, it has an interest. I do not mean by the conclusion I have expressed to hold that € person who has standing to seek a statement of reasons under 8.13 will necessarily be entitled to such a statement, even if the relevant decision has been exhausted, in the sense that nothing remains to be done pursuant to it. However, in a case where an export licence has been acted upon for a period of three months and a request for reasons has been made within the period during which the licence was operative, it seems to me that there may well be utility in requiring the statement to be provided. To put the matter somewhat differently, in my opinion, it is not a case where I can say at this stage that no utility will be served by the proceedings. For these reasons I dismiss the Minister's motion. I order the Minister to pay North Coast's costs of the motion. I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. eo Heard: Place: Decision: Appearances: , 4 Associate: A vf Feb vo. Dated: 7 October, 1994 6 October 1994 Sydney 7 October 1994 Mr J Basten QC and Mr N J Williams instructed by Environmental Defender's Office appeared for the applicant. Mr G T Johnson instructed by Australian Government Solicitor appeared for the respondent.