Friends of Hinchinbrook Society Inc v Minister for Environment and ORS S99/1997 [1998] HCATrans 66 (13 March 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S99 of 1997

B e t w e e n -

FRIENDS OF HINCHINBROOK SOCIETY INC

Applicant

and

MINISTER FOR ENVIRONMENT

First Respondent

CARDWELL PROPERTIES PTY LTD

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 9.34 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear in this matter for the applicant with MR N.J. WILLIAMS and MR T. REILLY. (instructed by Environmental Defenders Office)

MR B. WALKER, SC: May it please the Court, I appear with my learned friend, MS N.E. ABADEE, for the first respondent, the Minister. (instructed by the Australian Government Solicitor)

MR S.M. GORRY: May it please the Court, I appear for the second respondent. (of Henry Davis York)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with MRS D.A. MULLINS for the third respondent. (instructed by the Crown Solicitor for the State of Queensland)

GAUDRON J: Yes, Mr Basten.

MR BASTEN: Your Honours, Australia, as a party to the World Heritage Convention, has undertaken to do all that it can, in the words of the Convention, to the utmost of its resources to ensure protection, conservation, presentation and transmission to future generations of cultural and natural heritage to which the Convention applies, of which the Hinchinbrook channel is a part. That is an emphatic obligation which finds an emphatic statutory response in the World Heritage Properties Conservation Act.

Your Honours, we start with the proposition that the consents which Cardwell Properties sought and obtained from the Minister were consents to acts which would cause damage to that world heritage property.

GAUDRON J: They would not need consent otherwise, would they?

MR BASTEN: That is so, indeed. It is a short point. The first question which is raised by our application involves an argument that the grant of the consents constituted an improper exercise of the power conferred on the Minister and particularly because of the specific and exclusive identification of limited criteria in section 13 of the Act. That argument appears at page 303 of the second volume of the appeal papers.

May we take that argument a step further by reference to the manner in which this Act deals with the interrelationship of consents under it and State laws. Your Honours will recall that the Minister was not satisfied initially that it was appropriate to grant Cardwell Properties' application because of immediate, cumulative, continuing and consequential impacts on the world heritage values of the proclaimed area and especially on seagrasses and dugong populations. That appears expressly in paragraph 24 of the statement of reasons which is set out in volume 1 of the appeal papers at page 25 or, helpfully, in Justice Northrop's judgment at page 259.

I need not go back to that immediately, but I would simply say that some of the impacts the Minister considered would be ameliorated by conditions imposed by a deed entered into by each of the respondents. That is a matter to which we return. But he also deferred reaching a decision until a memorandum of understanding had been entered into with the State of Queensland for the development of a regional plan and management arrangements for that region.

On the protection of the dugong population, which was one of the key elements of the world heritage values, the Minister largely relied on the arrangements he expected would be put in place. He states that expressly in paragraphs 34 to 36 of his statement of reasons. In so doing, the Minister relied for the fulfilment of Australia's obligations under the Convention upon the future exercise of a statutory discretion by a State Minister.

Now, the World Heritage Properties Conservation Act recognises that Australia's compliance with the Convention obligations may give rise to issues which are regulated by State laws or planning instruments. In section 12 of that Act there is express provision for the framework for ensuring that nevertheless there is compliance with the Convention. According to section 12 the Governor-General may by regulation declare a plan made under State law, and acts done under such a declared plan, not to infringe the prohibitions in the federal Act. Subsection (3) then removes them from the prohibitions in the Act. But to ensure compliance with the obligations, the Governor-General may only make such a declaration where satisfied that nothing that is or may be authorised to be done under such a plan would damage or destroy property to which section 9 or section 10 applies. Of course, as it is done by way of regulation, there is parliamentary scrutiny of the Governor-General's decision.

Needless to say, no such declaration was made here in relation to the Queensland plan, not least because the Queensland plan had not then been formulated.

GAUDRON J: But is this not a bit of a red herring? Section 12 applies where there would be no damage.

MR BASTEN: Yes, certainly, your Honour.

GAUDRON J: Section 13 applies where there will be some damage.

MR BASTEN: Yes.

GAUDRON J: And in this case the Minister found that there would be some, but that it was minimal.

MR BASTEN: Yes, in reliance upon, amongst other things, that State law and its application - - -

GAUDRON J: Why do we bother about section 12?

MR BASTEN: For this reason, your Honour, that once the Minister addressed his mind to the question of what might be done under a future State law, it would be inevitably a future State law which authorised, no doubt subject to condition, certain activities. Now, the question of whether or not activities which were authorised by that law could be done with or without damage was not, under the structure of this Act, a question for this Minister at all. It was a question for the Governor-General, subject to parliamentary scrutiny.

GAUDRON J: That was not the question that he asked himself.

MR BASTEN: No, it was not the question that he asked himself.

GAUDRON J: And it was not the question he had to ask himself.

MR BASTEN: No, it was not - it was not a question that he asked himself in those terms, your Honour, but what we are saying is that in taking account of a State law, he was in effect saying that it was his decision, and those indeed of the Queensland authorities responsible for the plan, which were sufficient to satisfy him that the damage done would be insignificant. Yet if there is still damage done, which by definition there will be, or no consent is required, then that is not the sort of State law which could authorise such damage unless, of course, the Governor-General takes a different view.

GAUDRON J: There is a dichotomy surely, Mr Basten, between acts which would cause no damage, which come within section 12, and those which would cause some damage, which come within section 13.

MR BASTEN: By definition, your Honour, if an act is permitted under a State law, then it should be the subject of consideration by the Governor-General if it would cause damage.

GAUDRON J: That is not what section 12 says.

MR BASTEN: Yes, but on the assumption that that is the case, and the Minister appears to have made that assumption, it is not appropriate for him, in making a determination in relation to an act under section 9, to take into account what may or may not happen under that State law, simply from the structure of the Act.

I am not putting that as an absolute answer to the way in which the matter was put below, but what was put below by both the trial judge and the Full Court was that the existence of this memorandum of understanding about a future plan was simply a fact, a fact which the Minister could take into account. We say that was in error because it was a fact which related to a State law and plan and those had particular significance under the Act and cannot be simply dismissed as a fact. That does not derogate from the argument we put in relation to the futurity and the fact that other consideration than those prescribed by section 13 are required to be taken into account under the State law. It is merely an additional point we sought to make in relation to that first ground.

In relation to the way it is put by the court, may I simply take your Honours to one passage at page 287 in the judgment of Justice Hill where, at line 40, he makes the point that:

In the present case the decision-maker relied upon the Memorandum of Understanding as an existing fact at the time he made the decision.

That is the difficulty we have with the approach.

GAUDRON J: It was a fact, was it not?

MR BASTEN: The existence of a memorandum of understanding was a fact, but it did not mean that it was a fact which could not be looked at to identify what it was about the fact which the Minister was entitled or not entitled to take into account. We say by stopping short of the existence of the memorandum, which simply obliged the State and Commonwealth to use their best endeavours to do certain things under their own laws, and not investigating as to the way in which it could be taken into account, his Honour omitted - and the court omitted - to consider the way in which it should properly have been taken into account and the limitations upon the way in which it should have been taken into account.

Of course, that is significant, both in relation to the section 13 considerations, because the State authorities were not restrained to those, and also in relation to the additional point I seek to make, merely by way of supplementing the argument at 303. Your Honours, I need not add anything more to that ground.

I think I need not add much to our second ground which is set out in some detail in the written argument. The Act, as your Honour Justice Gaudron noted, requires consent if it will cause damage. The dredging and the other activities clearly would cause damage and the Minister considered them on that basis. The damage would be minimised, as the Minister held, by carrying out acts, the dredging acts for example with silk curtains and shrouds, and the many conditions which are prescribed in the deed. But the damage would not be prevented entirely, otherwise no consent would be needed. But analysing it in that way, in our submission, illustrates the point. The act approved was not dredging but dredging carried out in a very carefully and precisely defined way. Yet none of that detail is found in the consents which define the acts to which consent is given. Similarly, with respect, the absence of a proper description of the acts renders the enforcement provisions of section 14 of this Act largely nugatory.

Your Honours, the third question which is raised by the argument involves the appropriate test to be applied by the Minister in considering these acts. The Convention, as we noted before, says that Australia must do its utmost to undertake protection and conservation, amongst other things, of identified properties. The statute implements that requirement and the passage from the judgment of Justice Brennan in the Tasmanian Dam Case at page 224, which is set out and discussed by Justice Hill at pages 284 to 285 in the appeal papers is, in our respectful submission, correct.

GAUDRON J: How does this arise, given the finding that the damage would be negligible?

MR BASTEN: It arises in this way, we say, your Honour. If one goes to page 285 of the application book, line 34, what his Honour says is that:

None of the objects of "presentation", "protection" or "conservation" is subordinate to the other. What is required in a particular case will be a balancing of the obligations of "protection" and "conservation" as well as "presentation", each given equal weight.

The consequence of that balancing exercise, as his Honour notes at page 286 at line 40, a short paragraph, particularly at line 43, is that:

the task for the Minister will be to weigh the damage on the one hand which presentation may bring with it, against the need to protect and conserve the world heritage value on the other.

Now, if that is not the correct test, it is nevertheless, in our submission, clearly the approach which the Minister has adopted. When he says, in the statement of reasons, that something is consistent with each of those elements, it may mean something different, depending upon which you give primacy to.

McHUGH J: Yes. But did you not concede at first instance, before Justice Sackville, that the Minister had applied the most stringent test?

MR BASTEN: The test which was conceded before Justice Sackville was to that effect, but the question which was raised on the appeal, and argued on the appeal, was the extent to which that test applied in relation to presentation as an equal value with protection. In other words, to say that something is consistent with protection presumably means that it will not do damage to something. You cannot protect something and damage it.

GAUDRON J: You say all that, but you are talking in a context where consent may be given to acts which damage. You have to start with that. Here you have a case where the opinion is formed that the damage will be negligible. What difference does it make whether you are giving primacy to protection or preservation in those circumstances?

MR BASTEN: Because, your Honour, what we say is that the consequence of a finding that the damage is insignificant flows from a consideration which involves a balancing. In other words, whether or not it is significant may depend upon whether or not presentation - damaging presentation is a value and a factor which can be taken into account in making this decision. If it is not, then one would assume that a different approach would be taken to the question of protection. All that one can say in this case is that the Minister has adopted a view, as Justice Hill identifies in the passages to which I referred, which gives equal weight and requires a weighing of the consequences of the act, both with respect to protection and presentation.

Now, if it is correct to say that presentation is a subordinate value, then the question of whether or not there will be damage resulting from presentation is a very different one because, inevitably, the question then is whether any damage should be allowed, as long as it is not damage which is for the purpose of protection or conservation.

GAUDRON J: In which event, surely, section 13 would be differently formulated.

MR BASTEN: With respect, no, your Honour. It really depends upon reading section 13 in its statutory context, we would say, and if it is correct to say that presentation - and this, as I read it, is the view that the present Chief Justice took in that passage in Tasmanian Dam - presentation is not an element which is to be - protection and conservation are not elements which are to be sacrificed at the feet of presentation. So that presentation is certainly a matter which can be taken into account but not in so far as it involves damage which is inconsistent with protection and conservation.

GAUDRON J: There is no finding of inconsistency here.

MR BASTEN: No, there is not.

McHUGH J: In any event, I do not know that that is the correct construction of the Chief Justice's judgment in the Tasmanian Dam Case anyway. In the passage upon which you rely he says no more than that you just cannot sacrifice conservation and protection to presentation. That does not - he seems to be dealing with an issue where the decision maker was relying on presentation as, so the speak, the exclusive criterion for giving consent. He is saying nothing as to what weight is to be given to each of the respective elements in any particular case.

MR BASTEN: Your Honour, that is one possible reading of it and it must be conceded that his Honour's discussion in that context is obviously - is in the context, a very different consideration from the present circumstances. The argument, though, that we sought to derive from that passage - and which we can put without reliance upon his Honour, if his Honour does not go so far - is simply that, that the primacy of the protection and conservation obligations should be accorded, on a proper reading of the Act, in the light of the Convention and that one is not entitled, under this Convention and under this Act, to consent to acts which involve, perhaps, some presentation of a property if the effect is to damage it and hence impair its transmission to future generations. That is the proposition for which we seek to argue.

GAUDRON J: It may, but for my part, I still do not see how it arises once you have a finding that the damage will, in any event, be negligible.

MR BASTEN: I am really only repeating what I said before, your Honour, namely that the question of significance was the issue which was before the Minister and if he adopted a balancing approach, one could readily see that he might treat something as insignificant where there were conflicting principles to be weighed up but might have reached a different conclusion had he been of the view that one particular principle was given primacy.

Your Honours, those are the additional matters in relation to those issues. If the issues do arise, we would say that it is clearly a matter which gives rise to questions of general importance for the interpretation of the Act and Australia's obligations under the Convention. If your Honours please.

GAUDRON J: Thank you. We need not trouble the respondents.

We are of the opinion that the proposed appeal does not enjoy sufficient prospects of success to justify a grant of special leave. Accordingly, special leave is refused.

MR WALKER: Costs, your Honour?

MR KEANE: We would seek an order for costs as well, your Honour.

MR BASTEN: We made a submission as to the public interest nature of the litigation in our written submissions.

GAUDRON J: Whatever might be the position in other courts with respect to public interest litigation, why should it apply in this Court where special leave is a very different consideration from the actual mounting of legal proceedings?

MR BASTEN: I accept the distinction, your Honour. We would submit that the same principle should apply, but I have nothing I can add to what was put in written submissions.

McHUGH J: You had a good win in Oshlack; now you are seeking to extend it.

MR BASTEN: Your Honour, I am happy to do that if I may but I do not know that there was anything in Oshlack which would allow me to extend the submission that was made in any event.

GAUDRON J: Special leave is refused with costs.

AT 9.54 AM THE MATTER WAS CONCLUDED