FEDERAL COURT OF AUSTRALIA The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179 ADMINISTRATIVE LAW – application for review of two decisions made by Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) – first decision designating proposed action as controlled action and specifying controlling provisions – second decision that relevant impacts of controlled action be assessed on preliminary documentation – whether valid referral under EPBC Act to support decisions – whether in making first decision the Minister failed to take into account a relevant consideration or took into account an irrelevant consideration – s 75(2B) of EPBC Act – RFA forestry operation – Commonwealth land – whether Minister misconstrued s 87(5) of EPBC Act in making second decision – whether denial of procedural fairness in making of second decision – whether second decision affected by apprehended bias – whether second decision manifestly unreasonable – whether in making second decision Minister took into account an irrelevant consideration Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 74(2)(b)(ii), 74(3), 75, 75(1A), 75(5), 87, 87(1), 87(3), 87(3)(c), 131AA(7) Pulp Mill Assessment Act 2007 (Tas) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 applied SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 referred to The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 referred to THE INVESTORS FOR THE FUTURE OF TASMANIA INC. v MINISTER FOR THE ENVIRONMENT AND WATER RESOURCES AND GUNNS LIMITED TAD 17 OF 2007 MARSHALL J 9 AUGUST 2007 HOBART IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY TAD 17 OF 2007 BETWEEN: THE INVESTORS FOR THE FUTURE OF TASMANIA INC. Applicant AND: MINISTER FOR THE ENVIRONMENT AND WATER RESOURCES First Respondent GUNNS LIMITED Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 9 AUGUST 2007 WHERE MADE: HOBART THE COURT ORDERS THAT: 1. The application is dismissed. 2. The parties file and serve written submissions on the question of costs within 21 days of the publication of the accompanying reasons for judgment. 3. Liberty to apply is reserved on not less than 48 hours written notice to each other party. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY TAD 17 OF 2007 BETWEEN: THE INVESTORS FOR THE FUTURE OF TASMANIA INC. Applicant AND: MINISTER FOR THE ENVIRONMENT AND WATER RESOURCES First Respondent GUNNS LIMITED Second Respondent JUDGE: MARSHALL J DATE: 9 AUGUST 2007 PLACE: HOBART REASONS FOR JUDGMENT 1 This proceeding was heard at the same time as The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 (TWS proceeding). These reasons for judgment are to be read together with the reasons for judgment published in the TWS proceeding. Terms defined in the reasons for judgment in the TWS proceeding have the same meaning in these reasons for judgment. 2 The grounds of review relied on in this proceeding overlap substantially with the grounds relied on in the TWS proceeding. There is a difference between the grounds in the applications dealing with the allegation that the Minister took into account Gunns' commercial imperatives in making the 2007 assessment approach decision. 3 Ground nine of the grounds of review in this proceeding states that the 2007 assessment approach decision is invalid or is not authorised by the EPBC Act because the Minister took into account an irrelevant consideration. Ground 10 in the TWS proceeding alleges that the 2007 assessment approach decision involved an improper exercise of power in that it was made for a purpose, or included a purpose, other than that for which the power was conferred. I rejected that submission in the TWS proceeding. 4 I also reject ground nine of IFT's third amended application. The Minister was obviously aware of Gunns' preferred timeline for a decision on approval. That preference mirrored the preference of the Tasmanian Government as set down in the Pulp Mill Assessment Act 2007 (Tas) which the Minister referred to at [21] of his reasons for the 2007 assessment approach decision. But the Minister's reasons for the 2007 assessment approach decision show that Gunns' and the Tasmanian Government's preferred timeline did not guide his decision on assessment approach. The Minister selected an assessment approach which "…will provide enough information about the relevant impacts of the proposed action to allow [him] to make an informed decision on whether or not to approve the taking of the proposed action…". 5 The fact that officers of the Department and Gunns' representatives had meetings, the records of which note certain timelines, does not bind the Minister in the exercise of his choice of assessment approach under s 87 of the EPBC Act and did not form any part of his written reasons for the 2007 assessment approach decision. 6 I reject all other grounds of review raised in IFT's third amended application. Those grounds have been dealt with in the reasons for judgment in the TWS proceeding, but it is appropriate to add something on the procedural fairness ground. 7 IFT was incorporated on 9 October 2006 as a result of Gunns' proposal to build and operate a pulp mill at Bell Bay. IFT's members own, operate and/or are involved in various businesses and organisations, most of which are located in Launceston, Bell Bay and the Tamar Valley. Those businesses are in industries such as tourism, hospitality, food, agriculture, resources, public relations and training. 8 IFT appeared before the RPDC, including at the 22 February 2007 directions hearing. Before the demise of the RPDC, IFT had intended to obtain detailed expert reports on flora and fauna and social and economic issues including, but not confined to, the impact of the pulp mill on tourism. IFT also intended to seek legal, economic and other expert advice on the material that Gunns had submitted to the RPDC. IFT says that the 2007 assessment approach decision and the requirement to make comments within 20 business days of that decision, denied it the opportunity to undertake further investigations and to obtain detailed expert reports. 9 In the TWS proceeding, I held that s 131AA(7) of the EPBC Act is a complete statement of the Minister's obligation to provide procedural fairness in relation to his decision to approve, for the purposes of a controlling provision, the taking of an action and any conditions attaching to approval. If that is not correct and the obligation is wider, it is one that must be considered in the context of the EPBC Act and in the context of the facts and circumstances before the Minister (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [26]). 10 That the EPBC Act has provisions dealing with steps to be taken before a decision on approval is made suggests that the EPBC Act makes careful provision for when, and to what extent, comment from interested persons and/or the public is required. 11 Under s 74(3) of the EPBC Act, as soon as practicable after receiving a referral of a proposal to take an action, the Minister must cause to be published on the internet the referral and "an invitation for anyone to give the Minister comments within 10 business days" on whether the action is a controlled action. In making a controlled action decision under s 75, the Minister is required by s 75(1A) to consider the comments received in response to such an invitation, as long as they are received within the time specified. Under s 75(5), the Minister is obliged to make the controlled action decision within 20 business days after receiving the referral. 12 By contrast, there is no obligation on the Minister to invite comments and consider comments when making an assessment approach decision under s 87 of the EPBC Act. 13 There is no requirement in the EPBC Act to invite comments, or to consider the views of the public, on what assessment approach should be adopted. This tells strongly against the suggestion that the Minister has an obligation to accord procedural fairness to interested persons and the public concerning an assessment approach decision under s 87. 14 The Minister must consider the matters set out in s 87(3) in making an assessment approach decision under s 87(1). Those matters include, under s 87(3)(c), an obligation to consider any relevant information received in response to an invitation to the appropriate State or Territory Minister to comment on whether the action is a controlled action and to give the Minister "information relevant to deciding which approach would be appropriate to assess the relevant impacts of the action…" (see s 74(2)(b)(ii)). 15 There is no similar obligation for the Minister to invite or consider any other comments on an assessment approach decision. There is nothing to stop the Minister taking into account the views of interested persons or the public on the appropriate assessment approach, however, nothing in the EPBC Act compels the Minister to do so. 16 A further complication with IFT's procedural fairness argument, and also in the TWS proceeding, is that it is difficult to assess whether there has been any practical unfairness until the Minister makes a decision on approval. The decision on approval may attach conditions on approval which assuage the concerns of opponents of the pulp mill. It must also be remembered that the Minister's decision on approval only concerns matters that are the subject of the controlling provisions, as well as social and economic issues. Environmental matters raised in IFT's evidence which extend beyond the controlling provisions, such as noise and air pollution, are matters for Tasmania. 17 In order to establish practical unfairness, it must be shown that a person has been given an expectation by the Minister "as to a procedural step to be taken", which was not taken so that it may be said that a legitimate expectation held was disappointed (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36] per Gleeson CJ). 18 Neither IFT or any of its members or, indeed, The Wilderness Society Inc., can show it or they were misled by the Minister. The subjective expectation held by opponents of the proposed action was generated by the RPDC process. While the Minister's predecessor agreed on assessment through the RPDC jointly with Tasmania, nothing the Minister did contributed to the demise of the RPDC. Further, the number and nature of the environmental matters relevant to the Minister's decision on approval are narrower than those dealt with by the RPDC. Even in that respect, the evidence of IFT is very general. There is no evidence of what precise material would have been put to the Minister had he decided on a longer period for "comment" than 20 business days. For example, Ms Christina Holmdahl referred to "detailed expert reports" on "flora and fauna and social and economic issues including but not only the impact on tourism". 19 The kind of material which IFT wished to put to the Minister, if there was more time, largely relates to matters which are relevant to Tasmania's assessment process, rather than the Minister's. The same can be said of the matters identified by Mr Paul Oosting at [59] of his affidavit dated 16 May 2007 in the TWS proceeding, with the exception of "marine impacts (including environmental impacts and particular species impacts)", "threatened species, as it relates to the site of the pulp mill", "social impacts" and "economic impacts". The limited nature of the matters which could be addressed with respect to the controlling provisions, combined with the limited nature of the evidence that could be put forward in respect of them, does not make it clear that the 20 business day time limit for comment amounts to a denial of procedural fairness in the circumstances. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 August 2007 Counsel for the Applicant: Dr K Hanscombe SC with Ms F Gordon Solicitors for the Applicant: Coadys Counsel for the First Respondent: Dr M Perry QC with Mr G Hill Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G Uren QC with Mr T Walker Solicitors for the Second Respondent: Freehills Dates of Hearing: 4-6, 9-10 July 2007 Date of Judgment: 9 August 2007