Posted on October 28, 2022 by Liam Mulligan 11

Federal Court confirms interpretation of the precautionary principle

The Federal Court of Australia in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 has confirmed how the precautionary principle is to be interpreted and applied under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act‘).

This case was an application by the Bob Brown Foundation to challenge the validity of a decision under the EPBC Act made by a delegate of the Commonwealth Environment Minister. The delegate had decided that preliminary design and assessment works in relation to a proposed tailing storage facility in western Tasmania were not a ‘controlled action‘ under the EPBC Act, provided that certain measures were taken to avoid significant environmental impacts. The significance of the action not being ‘controlled‘ was that it did not require assessment and approval by the Environment Minister under the EPBC Act.

The measures specified in the decision were to be taken by the proponent to avoid significant impacts to various threatened species and ecological communities. However, the decision did not require any measures to be taken for a particular threatened species, the Tasmanian Masked Owl. This was despite the delegate of the Environment Minister having before her a flora and fauna habitat assessment that recommended certain measures be adopted for the Tasmanian Masked Owl.

Relevantly, the Foundation claimed that the Minister’s delegate had failed to comply with her obligation under section 391(1) of the EPBC Act to take account of the precautionary principle.

The precautionary principle, under section 391(2) of the EPBC Act, is that ‘lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage‘. Section 391(1) of the EPBC Act requires the Environment Minister to take account of the precautionary principle in making certain decisions, including a decision as to whether an action is a controlled action, to the extent he or she can do so consistently with the other provisions of the Act.

In respect to the precautionary principle, the Federal Court has previously relied upon decisions of the NSW Land and Environment Court, and in particular, the judgment of Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 (‘Telstra‘). In this case, citing Telstra, Moshinsky J held (at [19]–[33]):

• the application of the precautionary principle under the EPBC Act, and the need to take precautionary measures, is triggered by the satisfaction of two (cumulative) conditions:
  • a threat of serious or irreversible environmental damage (‘first condition precedent‘); and
  • scientific uncertainty as to the environmental damage (‘second condition precedent‘).
• In relation to the first condition:
  • it is concerned with the threat of environmental damage, not the actual occurrence of damage;
  • the environmental damage threatened must be serious or irreversible;
  • the threats to assess include direct, indirect, secondary, and long-term threats, as well as the incremental or cumulative impacts of multiple repeated actions or decisions;
  • the assessment of threats requires consideration of many factors and will be enhanced by broadening the range of expertise, stakeholders, and right-holders consulted; and
  • the threat of damage must be adequately sustained by scientific evidence.
• In relation to the second condition:
  • the relevant “uncertainty” is about the nature and scope of the threat of environmental damage, and
  • assessing the degree of scientific uncertainty involves an analysis of many factors.
• The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development until full scientific certainty is attained.
• The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness or irreversibility of the threat, and the degree of uncertainty.  Measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question.

Applying this reasoning, Moshinsky J found that the delegate of the Minister failed to meet her obligation to take account of the precautionary principle. His Honour inferred this failure from the Statement of Reasons given by the delegate, both in general and about the Tasmanian Masked Owl in particular. His Honour said in relation to the delegate’s reasons (at [48]–[53]) that:

• the section about the Tasmanian Masked Owl did not refer to the precautionary principle;
• the delegate did not refer to the first condition precedent in that section, nor did she make a finding in terms that correspond with that condition precedent; and
• while the delegate discussed threats to the Tasmanian Masked Owl, the delegate did not discuss or make a finding about whether those threats were serious or irreversible.

Instead, his Honour found, the delegate appeared to jump straight to the question of whether the proposed action would have a significant impact on the Tasmanian Masked Owl. The Court therefore found that the delegate (and thereby, the Minister) did not take account of the precautionary principle.

This decision confirms that Preston CJ’s analysis of the precautionary principle in Telstra is authoritative in EPBC Act decisions. It also illustrates the care that needs to be taken by decision-makers in giving written reasons about how they have applied the precautionary principle when considering a proposed action.

If you have any questions about this blog post, please contact Liam Mulligan on (02) 8235 9715 or Lachlan Penninkilampi on (02) 8235 9719.