Case: Mees v Roads Corporation [2003] FCA 306 ; (2003) 128 FCR 418 at [118]
Outcome: cited
Blue Wedges argued that the regime established under Ch 4 of the Act proceeds on the assumption that the nature of an action referred for assessment will remain consistent throughout the assessment process. It said the regime is predicated on a series of decisions designed to ensure that the impacts of the action which has been referred are adequately assessed for each of the designated controlling provisions. That regime, it is said, would be subverted if the action changed during the course of the referral process such that the impacts of the action were likely to be different from the impacts of the action which was originally referred for determination. It is for this reason, so the argument went, that the Act places such importance on the accuracy of the information provided for the purposes of assessment. Blue Wedges cited Mees v Roads Corporation [2003] FCA 306 ; (2003) 128 FCR 418 at [118] , where it was said the Minister has no fact-finding role in the process of examining a referral of a proposed action. The Environment Minister must make a decision on the information provided in the referral. This consideration renders it all the more important that the referral document must contain information that is truthful and complete, so as not to mislead. 33 However, the Act expressly provides for the Minister to invite comments on the referral from various persons and bodies, including the public at large (s 74) and to seek further information from the proponent (s 76). Nor is there any reason to suppose that the Minister could not seek advice on factual matters from the Department or from any other person who might be able to assist the Minister in making a decision. Further, s 78 enables the Minister to reconsider his or her decision under s 75 in various circumstances, including where new information becomes available or where there has been a substantial change in circumstances relating to the likely impacts of a proposed action. So while obtaining truthful and accurate information is without doubt important, the freedom explicitly given to the Minister to obtain information from any source suggests, amongst other things, that it was contemplated the Minister might want information about a change in the proposed action. 34 Although in the present case the Referral came for the (then) proponent of the Project under s 68, the Environment Act also provides that a referral may come from a State or Territory (s 69), or a Commonwealth agency (s 71). There is a further provision that if the Federal Minister believes a person proposes to take an action that the Minister thinks may be or is a controlled action, the Minister may request that person, or a State or Territory that has responsibilities relating to the action, to refer the proposal (s 70). 35 Thus the Environment Act contemplates that a proposed action may be referred and made subject to the Act's processes whether the proponent likes it or not. This is hardly surprising; it could not be left up to proponents to decide whether or not the Act should apply. The significance of this for present purposes is that a proposed action may be referred to the Federal Minister against the wishes of the proponent, and regardless of its stage of development, and whether or not the proponent has had the opportunity to respond to issues raised by the Minister or anybody else. It would be quite unworkable if in such circumstances the proposed action could only be assessed in its form as at the time of referral. 36 Moreover, none of the decisional steps along the way the controlled action decision, identification of controlling provisions, selection of assessment method require a detailed assessment of the proposed action. That step only comes when the assessment itself is carried out and the subsequent approval given or refused. There seems to be no point in insisting that all the details of the proposed action remain the same throughout the whole process.