COURTCWDS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION SACKVILLE J
HRNG STATUTORY CONSTRUCTION - whether consent under s 10 of the World Heritage Properties Conservation Act 1983 ("World Heritage Act") has the effect of a consent under s 9 of the Act - relationship between consents under each section - whether Minister has power under the World Heritage Act to give conditional consents. ADMINISTRATIVE LAW - unreasonableness - challenge to consents issued by the Minister under ss 9 and 10 of the World Heritage Act - whether the Minister's reliance on contractual provisions and administrative arrangements was so unreasonable that no reasonable person could have given the consents. ADMINISTRATIVE LAW - whether Minister deferred decision until preparation of State management plans - whether Minister is entitled to take account of environmental regulation to be implemented under State law in granting consents under the World Heritage Act - significance of the Convention of the Protection of the World Cultural and Natural Heritage. ADMINISTRATIVE LAW - relevant and irrelevant considerations - whether Minister took into account social and economic factors in giving consents under s 9 of the World Heritage Act - whether Minister bound to take into account the "precautionary principle". STATUTORY CONSTRUCTION - relationship between s.30 of the Australian Heritage Commission Act 1975 (Cth) and ss 9 and 10 of the World Heritage Act.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(d),(e),(f), 2(a),(b),(g) Australian Heritage Commission Act 1975 (Cth), ss 4, 22, 30 Convention for the Protection of the World Cultural and Natural Heritage, Articles 3, 4, 5 World Heritage Properties Conservation Act 1983 (Cth), ss 9, 10, 13, 21, 22 World Heritage Properties Conservation Regulations, 3F(2) Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 Commonwealth The v The State of Tasmania (1983) 158 CLR 1 Council of Civil Service Unions v Minister for the Civil Service (1985) AC 375 Country Roads Board The v Neale Ads Pty Ltd (1930) 43 CLR 126 Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153 Foley v Padley (1983) 154 CLR 349 Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 Luu v Renevier (1989) 91 ALR 39 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Parramatta City Council v Hale (1982) 47 LGRA 319 Richardson v The Forestry Commission (1988) 164 CLR 261 South Australia v The Commonwealth (1962) 108 CLR 130 Tickner v Bropho (1993) 40 FCR 183 Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 ORDER SYDNEY, 16 December 1996 #DATE 14:2:1997 #ADD 19:2:1997
Appearances: Mr M.H. Tobias QC and Dr J. Griffiths, instructed by the Environmental Defender's Office, appeared for the applicant. Mr J.S. Hilton SC and Mr I.D. Faulkner, instructed by the Australian Government Solicitor, appeared for the first respondent. Mr S.M. Gorry, Solicitor of Henry Davis York, agent for Hopgood and Ganim, appeared for the second respondent. Ms D.A. Mullins and Mr E.K. Christie, instructed by the Crown Solicitor for the State of Queensland, appeared for the third respondent. JUDGE1 THE COURT ORDERS THAT: 1. The application be dismissed.
SACKVILLE J 1. The Proceedings In 1981, the Commonwealth nominated the Great Barrier Reef for inclusion in the World Heritage List, which is established and maintained pursuant to the Convention for the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation on 16 November 1972 (the "Convention"). The nomination was accepted by the World Heritage Committee, in accordance with the procedures laid down by Art. 11 of the Convention.
2. The Great Barrier Reef, as accepted for listing, extends approximately 2000 kilometres along the eastern coast of Australia, from just north of Fraser Island in the south to the latitude of Cape York in the north. It covers an area of 348,7000 square kilometres over Australia's continental shelf. The area listed includes Hinchinbrook Island and Hinchinbrook Channel, located near Cardwell in North Queensland. 3. The present proceedings challenge the validity of decisions made on 22 August 1996, by the first respondent (the "Minister") pursuant to ss. 9 and 10 of the World Heritage Properties Conservation Act 1983 (Cth) (the "World Heritage Act"). By those decisions, the Minister gave consent to the second respondent ("Cardwell Properties") to carry out certain acts related to the development of a proposed tourist resort at Oyster Point (the "Port Hinchinbrook development"), about half a kilometre from the town of Cardwell. The acts to which the Minister gave his consent were, in substance: . the dredging of a marina access channel within Hinchinbrook Channel; . the removal of fallen mangroves from defined areas; and . the coppicing (cutting or pruning) of mangroves in defined areas to a height of not less than four metres above the seabed level. 4. The proceedings were brought by the applicant (the "Society"), which is an incorporated association with (according to the amended points of claim) a particular interest in the protection and conservation of the environment in and around Hinchinbrook Island and Hinchinbrook Channel. The Society contends that the Minister improperly exercised the powers conferred by ss. 9 and 10 of the World Heritage Act and committed a variety of legal errors in granting the consents. The Society seeks declaratory relief and orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"), the World Heritage Act, s.39B of the Judiciary Act 1903 (Cth), and the associated and accrued jurisdiction of the Court. 5. No challenge was made to the standing of the Society to seek relief. Section 13(5)(b) of the World Heritage Act provides that, for the purposes of an application under the ADJR Act in relation to a decision by the Minister to grant consent under ss. 9 or 10 of the World Heritage Act, an organisation is taken to be a "person aggrieved" if the decision relates to a matter which is within the organisation's objects and range of activities. Section 14(1) of the World Heritage Act empowers the Federal Court, on the application of an "interested person" to grant an injunction restraining a person from doing an act which is unlawful under ss. 9 or 10 of the Act. The reference to an "interested person" in s.14(1), in relation to an act that is unlawful by virtue of ss.9 or 10, includes an organisation whose objects, purposes and activities include the protection or conservation of the property in relation to which the act is unlawful: s.14(3)(b). 6. The Society does not seek relief against the third respondent ("Queensland"). However, prior to the hearing, Queensland applied to be joined as a respondent. On 24 October 1996, Branson J ordered, pursuant to s.12 of the ADJR Act, that Queensland be made a party to the application to the Court under that Act, on condition that it would not be entitled to seek an order for costs against any other party. 7. During the hearing of the claims for interlocutory relief the Minister and Cardwell Properties gave undertakings relating to the coppicing of foreshore mangroves. At the conclusion of the hearing before me, Cardwell Properties gave further undertakings relating to the mangroves, such undertakings to remain in force until 5 pm on the day judgment is delivered. 8. The facts were not in dispute. The evidence was exclusively documentary, a large volume of material being tendered without objection. I have been assisted by detailed written submissions from each of the parties, supplemented by oral submissions. A Caveat 9. It should be stressed that the role of the Court in proceedings of this kind is not to determine the desirability or otherwise of the Port Hinchinbrook development. Nor is it to consider afresh the merits of the Minister's decision to grant the consents under the World Heritage Act. The essential issue in the proceedings is whether the Minister exceeded the powers conferred on him by the Act. The fact that not all decision-makers in the position of the Minister would necessarily have taken the same view as the Minister does not demonstrate that he committed any legal error. Whether or not he did so turns on the construction of the relevant legislation and the application to the facts of well-established principles of administrative law. LEGISLATION World Heritage Act 10. The Explanatory Memorandum accompanying the World Heritage Properties Conservation Bill 1983 identified the purpose of the legislation as follows: "to provide for the protection of certain property that Australia has identified as 'natural heritage' or 'cultural heritage' within the meaning of an international treaty known as the Convention for the Protection of the World Cultural and Natural Heritage". 11. The Convention is set out in a Schedule to the World Heritage Act and some of its terms are incorporated by reference in the Act. 12. The constitutional validity of much of the World Heritage Act was challenged in The Commonwealth v The State of Tasmania (1983) 158 CLR 1 ("Tasmanian Dams"). The High Court, by a bare majority, upheld most of the challenged provisions. In particular, ss. 6 and 9 of the Act were upheld, subject to certain exceptions, as laws with respect to external affairs (s. 51(xxix) of the Constitution), while ss. 7 and 10 were upheld under the corporations power (s. 51(xx) of the Constitution). 13. The various judgments in Tasmanian Dams make observations about the scope and construction of the World Heritage Act. Since that case was decided the Act has been amended, principally by the Conservation Legislation Amendment Act 1988 (Cth). For present purposes, the relevant amendments were those altering the definition of "identified property" (now located in s. 3A) and the repeal of portions of s. 9 found to be unconstitutional in Tasmanian Dams. In general, however, the amendments do not affect the observations made by their Honours as to the construction and operation of the Act. 14. Section 6(3) of the World Heritage Act provides that, when the Governor-General is satisfied that any property in respect of which a proclamation may be made under the sub-section is being or is likely to be damaged or destroyed, he or she may declare, by proclamation, that property to be property to which s. 9 applies. A proclamation under s. 6(3) can be made only in relation to "identified property". That expression is defined by s. 3A(1)(a) to include property which satisfies one or more of the following conditions: "(i) ...; (ii) the property is subject to World Heritage List nomination (by the Commonwealth under Article 11 of the Convention); (iii) the property is included in the World Heritage List provided for in paragraph 2 of Article 11 of the Convention; (iv) the property forms part of the cultural heritage or natural heritage and is declared by the regulations to form part of the cultural heritage or natural heritage." 15. Part of any property referred to in s. 3A(1)(a) is also "identified property": s. 3A(1)(b). A reference in the Act to damage to, or the destruction of, property or a site includes a reference to damage to, or the destruction of, any part or feature of that property or site: s. 3(4). 16. The expressions "cultural heritage" and "natural heritage" have the same meaning as they have in the Convention: s. 3(1). Article 2 of the Convention provides that the following shall be considered as "natural heritage": "natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." 17. The fact that property is "identified property" is not enough of itself to authorise a proclamation under s.6(3) so as to render s.9 of the Act applicable to that property. Such a proclamation can be made only in relation to identified property that: . is not in any State (s. 6(1)); or . is in a State and is property to which one or more of the paragraphs in s. 6(2) relate (s. 6(2)). 18. One of the paragraphs in s.6(2) is the following: "(b) the protection or conservation of the property by Australia is a matter of international obligation, whether by reason of the Convention or otherwise". 19. Section 9(1) prohibits certain acts, subject to a Ministerial power of consent: "(1) Where an act is prescribed for the purposes of this subsection in relation to particular property to which this section applies, it is unlawful, except with the consent in writing of the Minister, for a person to do that act, or to do that act by a servant or agent, in relation to that property." 20. Section 21(1)(a) confers power upon the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed. 21. Section 13(1), which is of considerable importance to the present case, limits the scope of the Minister's discretion to give a consent under s. 9(1): "(1) In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property." 22. The World Heritage Act also sets up a protective regime for endangered identified property under ss. 7 and 10, although the parties in the present case disputed whether the regime is entirely independent from that enacted by ss. 6 and 9. The regime is directed to the activities of corporations. Section 7 provides that the Governor-General, if satisfied that any identified property is being or is likely to be damaged or destroyed, may, by proclamation, declare that property to be property to which s. 10 applies. Section 10(2) is as follows: "(2) Except with the consent in writing of the Minister, it is unlawful for a body corporate that ... (c) ... is a trading corporation formed within the limits of the Commonwealth; whether itself or by its servant or agent: (d) to carry out any excavation works on any property to which this section applies; ... (h) to kill, cut down or damage any tree on any property to which this section applies; ... (m) if an act is prescribed for the purposes of this paragraph in relation to particular property to which this section applies, to do that act in relation to that property." 23. Sub-sections (3) and (4) of s.10 supplement s.10(2). Section 10(3) provides that, except with the Minister's written consent, it is unlawful for a body corporate of the kind referred to in s.10(2) to do any act (not being an act already unlawful by virtue of s.10(2)) that damages or destroys any property to which s.10 applies. Section 10(4) provides that, without prejudice to the effect of s.10(2) and (3), except with the Minister's consent, it is unlawful for a trading corporation, for the purposes of its trading activities, to do any act referred to in s. 10(2)(d)-(m), or in s. 10(3). 24. A consent given by the Minister pursuant to ss.9 or 10 may relate to a particular act or particular acts or a particular class or particular classes of acts: s.13(2). Where the Minister grants or refuses to give a consent pursuant to ss.9 or 10, the Minister must publish in the Gazette a notice stating that: "the consent has or has not been given and setting out particulars of the act or acts to which the consent or the refusal to give the consent relates" (s.13(4)(a)). 25. A copy of the notice must also be laid before each House of Parliament within five sitting days of the giving or refusal of consent: s.13(4)(b). 26. Section 12 of the World Heritage Act addresses the relationship between that Act and State planning laws. Nothing in ss.9 or 10 renders it unlawful for a person to do an act that is authorised to be done by a provision, plan or scheme to which s.12(3) applies: s.12(3). If satisfied that an act that may be authorised or done pursuant to a State law, or a plan or scheme formulated under State law, would damage or destroy property to which ss.9 or 10 applies, the Governor- General may declare that s.12(3) applies to the law, plan or scheme. No such declaration has been made in the present case. 27. Before giving his or her consent pursuant to ss.9 and 10, in relation to a property or site within a State, the Minister must inform the appropriate Minister of that State and give the Minister an opportunity to make representations in relation to the proposed consent: s. 13(3). The Australian Heritage Commission Act 28. The Australian Heritage Commission Act 1975 (Cth) (the "AHC Act") requires the Australian Heritage Commission (the "AHC") to keep a register, known as the Register of the National Estate, in which are listed places included in the Natural Estate: s.22(1). For the purposes of the AHC Act, the National Estate consists of those places, being components of the natural or cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community: s.4(1). The AHC Act lays down guidelines for determining whether a place should be included in the National Estate: s.4(2). It also establishes procedures for entering and removing places from the Register: ss.23-24. 29. Section 30 of the AHC Act imposes duties on Commonwealth Ministers and authorities in relation to places in the Register: "30. (1) Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring that the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures than can reasonably be taken to minimise the adverse effect will be taken and shall not himself take any such action unless he is so satisfied. (2) Without prejudice to the application of subsection (1) in relation to action to be taken by an authority of the Commonwealth, an authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken. (3) Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it. (3A) Where the Commission is informed of a proposed action by a Minister, Department or authority, the Commission shall, as soon as practicable, provide its comments on the proposed action to the Minister, Department or authority (as the case may be)". 30. On 21 October 1980, the Cardwell Range-Herbert River Gorge area was placed in the Register of the National Estate. That area includes Hinchinbrook Island and Hinchinbrook Channel. On 26 April 1988, the Wet Tropical Forests of North Queensland, portion of which borders the western Hinchinbrook Channel, was placed in the Interim List of the Register. On 14 May 1991, the Great Barrier Reef region was placed in the Register of the National Estate. FACTUAL BACKGROUND 31. The proposed Port Hinchinbrook development is located on 44 hectares of land at Oyster Point, adjacent to the Hinchinbrook Channel and opposite Hinchinbrook Island. The proposed resort complex, if and when completed, will accommodate a maximum of 1500 guests, plus day visitors. It will comprise convention and recreation centres, restaurants, shops, townhouses, condominiums and associated facilities. At least some of the townhouses and condominiums are to be sold or leased to individual buyers or lessees. The proposed resort will also include a marina, connected to Hinchinbrook Channel by a dredged channel, which will accommodate 234 vessels some of which will be up to 35 metres in length. The acts to which the Minister consented on 22 August 1996 are to be undertaken in connection with the Port Hinchinbrook development. 32. In order to understand the challenge made to the Ministerial consents, it is necessary to set out the factual background in some detail. Certain of the material that follows has been taken from a report to the Department of the Environment, Sport and Territories ("DEST") by Professor R J Fowler and Professor B Boer, entitled World Heritage Project, Part I: The Port Hinchinbrook Development (May, 1996). The report was in evidence. 33. 34. In 1985, Resort Village Cardwell Pty Ltd, a subsidiary of Tekin Australia Pty Ltd ("Tekin") proposed a marina-based resort development at Oyster Point. Subsequently, the then Government of Queensland and Cardwell Shire Council granted a number of approvals for various works on the site, including the removal of mangroves. No formal environmental impact statement ("EIS") was required or obtained, there being no requirement for an EIS under Queensland law at that time. Initial work at the site commenced in 1989, including the clearing of seven hectares of mangroves and partial excavation of the proposed marina. 35. In 1989, Tekin applied to the Great Barrier Reef Marine Park Authority ("GBRMPA") for a permit under the Great Barrier Reef Marine Park Act 1975 (Cth) (the "GBRMP Act") to construct an access channel and breakwater into the Hinchinbrook Channel. At the time of this application, the GBRMPA received advice from the Commonwealth Attorney-General's Department that the waters of Hinchinbrook Channel fell within the boundaries of the Great Barrier Reef Marine Park, thereby making the GBRMP Act applicable to the works. The Commonwealth Minister for the Environment directed Tekin to prepare a public environment report under the Environment Protection (Impact of Proposals) Act 1974 (Cth) (the "EPIP Act") in relation to the offshore works. However, in 1990 Tekin went into provisional liquidation and the direction of the Minister ultimately lapsed. 36. Following Tekin's financial collapse, the site was left in a degraded state. The seven hectares of mangroves had been cleared along with other vegetation, while the marina site had been partially excavated. Work had not been commenced on the proposed access channel. 37. In 1991, the GBRMPA received further legal advice from the Attorney-General's Department that Hinchinbrook Channel, although part of the World Heritage listing of the Great Barrier Reef, was not within the Marine Park. This conclusion was reached because the waters of Hinchinbrook Channel were regarded as inland waters of Queensland and thus were outside the region over which the boundaries of the Park could extend. On this basis, approvals from the GBRMPA were not required for the marine works and the EPIP Act did not apply to the site. It may have been open to the GBRMPA to make regulations under s.66(2)(e) of the GBRMP Act, which allows regulations to be made for the purpose of prohibiting or regulating acts, whether inside or outside the Marine Park, that may pollute waters in a manner harmful to animals and plants in the Park. However, no such action was taken by the GBRMPA. 38. Cardwell Properties' Involvement and the Valentine Report In May 1993, Cardwell Properties, a company controlled by Mr Keith Williams, purchased the land at Oyster Point and acquired the benefit of the approvals issued by the State and the Council. 39. In 1994, at the request of the Queensland Government, an environmental assessment of the revised Port Hinchinbrook development was undertaken. This did not produce a full EIS. However, a consultant's report was prepared, followed by an Environment Review Report prepared by the Queensland Department of Environment and Heritage. The Environment Review Report summarised the major issues, but dealt mainly with marine issues because of the approvals already in place. Both reports were made available for public comment over a four week period. 40. In June 1994, the DEST expressed the view that the Environmental Review Report was inadequate in relation to consideration of the Commonwealth's responsibilities for environmental protection, conservation and world heritage. The Commonwealth then commissioned a report, prepared by Dr Peter S Valentine, of the Department of Tropical Environmental Studies and Geography, James Cook University ("the Valentine Report"). The report, which was published in August 1994, is entitled Hinchinbrook Area - World Heritage Values and the Oyster Point Proposal. 41. Among other topics, the Valentine report addressed the World Heritage values associated with the Hinchinbrook Island area. These were identified by reference to the criteria applied by the World Heritage Committee in considering whether to accept the nomination for inclusion in the World Heritage List. Among the values identified in the report were the following: . Hinchinbrook Island, the Channel and the adjacent mainland supported one of the largest occurrences of mangroves along the Wet Tropics coastline. . Hinchinbrook Island and the Channel were areas of great scenic beauty and amenity. . Hinchinbrook Channel had the third highest seagrass biomass along the coast between Cairns and Bowen. Perhaps the most important role of seagrasses was to provide essential food for dugongs and sea turtles. . the Hinchinbrook area was a major feeding ground for dugong, which was a threatened species and was the only strictly herbivorous marine mammal. 42. The Valentine report concluded that there was an inadequate level of baseline environmental data on which to consider properly the proposal for development. The report recommended that a range of potential impacts on World Heritage values should be carefully investigated should the project proceed. The possible impacts included the effect of dredging on seagrasses; the impact of seagrass loss and increased boating and activity on dugongs and turtles; the impact on mangroves; and the effects of increased turbidity. 43. The report noted that most of the adverse impacts related to the construction of the marina. The author suggested two alternatives for consideration, namely, a large resort without a marina and a smaller resort (less than 100 rooms) also without a marina. 44. Subsequent correspondence between the Commonwealth Minister for the Environment and his Queensland counterpart reveals there was a difference of opinion concerning the impact of the Port Hinchinbrook development on World Heritage values. Despite a request by the Commonwealth Minister for a further environmental assessment, on 29 September 1994 a deed was executed by the State of Queensland, Cardwell Properties and Cardwell Shire Council. The effect of the deed was to allow the development to proceed, subject to conditions. The deed provided, inter alia, for the appointment of an independent monitor to conduct an environmental monitoring program, the cost of which was to be borne by the company. It also provided for an environmental site supervisor who could give reasonable and lawful directions to cease or modify the works to mitigate or eliminate adverse environmental impacts. 45. In late October 1994, Cardwell Properties began clearing mangroves on the site. In November 1994, the Commonwealth Minister requested Cardwell Properties to cease clearing mangroves while further investigations took place. This request did not result in the cessation of work. The Proclamations and Regulations 46. On 15 November 1994, proclamations were made by the Governor- General, pursuant to s. 6(3) of the World Heritage Act in relation to areas of Hinchinbrook Channel at or near Oyster Point. The proclamations declared that the Governor-General was satisfied that the identified areas were likely to be damaged. There were some variations in the areas covered by the respective proclamations under s. 6(3), but nothing appears to turn on these variations. The proclaimed areas did not include Hinchinbrook Island itself. 47. Several days later, on 18 November 1994, reg. 3F was inserted into the World Heritage Properties Conservation Regulations (the "World Heritage Regulations"). This regulation prescribed certain acts for the purposes of s. 9(1) of the World Heritage Act in relation to the proclaimed areas (referred to as "the relevant property"). Regulation 3F(2) provides as follows: "(2) For the purposes of subsection 9(1) of the Act, each of the following acts is prescribed in relation to the relevant property: (a) performing excavating or other earth-moving works, including dredging; (b) killing, removing or damaging a native plant; (c) disturbing soil (including marine sediment) in such a way as to damage a native plant; (d) constructing, establishing, maintaining or continuing to construct, establish or maintain: (i) a breakwater; or (ii) a revetment; or (iii) any other substantial structure; (e) carrying out work preparatory to an act referred to in paragraph (d); (f) carrying out work associated with an act referred to in paragraph (d); (g) introducing fluid into a body of water adjacent to or in the relevant property; (h) permitting, authorising, directing or ordering, or purporting to permit, authorise, direct or order, the doing of an act of a kind referred to in paragraph (a), (b), (c), (d), (e), (f), or (g); unless the act is so performed that no damage will occur to the relevant property or part of the relevant property, and whether the act is performed alone or in connection with another act." The 1995 Applications 48. On 23 February 1995, Cardwell Properties applied under the World Heritage Act to the Commonwealth Minister for consent to several activities relating to the proclaimed uses of Hinchinbrook Channel. These activities included construction of breakwaters and an artificial beach, dredging of the marina access channel, and implementation of a beach and foreshore. DEST commissioned a consultants' report (the "NECS report") to consider the impact of the proposed activities on the proclaimed area. 49. The NECS report was completed in July 1995. It concluded as follows: "On the basis of the review undertaken, it is concluded that the potential exists for significant quantities of sediment to be generated as a result of the proposed development which could affect the areas within the Proclaimed Area. The precise nature of all these sediment types and volumes are unknown at present. The extent and effect of the alteration to the hydrodynamic regime at Oyster Point as a result of the construction of the breakwaters is not known. Hence the rate and location of the deposition of the additional sediment inputs is not known. If the tidal and current regime were to deposit these additional sediments on or around sea grass beds, then this could have adverse effects on the sea grasses. There is not enough data available at present to estimate what the effects are likely to be. If the sea grass beds are lost temporarily or permanently, it is probable that impacts on resident and transient populations of fish, turtles and dugongs will occur. As such these impacts would adversely impact on the World Heritage Value of the Proclaimed Area." 50. On 15 September 1995, the Minister made decisions on Cardwell Properties' application. The Minister granted consents pursuant to ss.9(1), 10(3) and 10(4) of the World Heritage Act to the removal of fallen mangroves and the clearance or coppicing of mangroves in certain areas. Consent was refused to all other activities. The practical result was that Cardwell Properties could not proceed with the project. The 1996 Applications 51. On 12 April 1996, Cardwell Properties made a fresh application for the Minister's consent under ss.9 and 10 of the World Heritage Act. The application eliminated the proposed breakwaters but sought consent inter alia, for the dredging of an access channel and a beach and foreshore management plan, the latter being a modification of the plan for which consent had been sought and refused in February 1995. The application was subsequently amended several times before it was ultimately determined by the Minister. The amendments proposed the removal of fallen mangroves from certain areas and the coppicing of mangroves to a height of not less than four metres in parts of those areas. Advice to the Minister 52. On or shortly before 9 July 1996, the Secretary of DEST provided the Minister with a briefing paper "to assist (his) decision-making on the applications by Cardwell (Properties) for consents under the (World Heritage) Act" and list the options open to him in relation to that decision-making. The paper noted that the GBRMPA had co-ordinated an exercise which sought the views of six commissioned independent scientists and about 30 "key stakeholders". Mr Williams of Cardwell Properties had been afforded the opportunity to comment on the various views expressed. In addition, about 50 unsolicited submissions and representations had been received. 53. The briefing paper, inter alia, made the following points: (i) the Minister was required to make three decisions with respect to each prescribed act, namely, a decision in relation to each activity for which consent was sought under each of ss. 9(1), 10(3) and 10(4) of the World Heritage Act; (ii) the tests were different in relation to the s. 9(1) and s. 10 decisions; (iii) by reason of s. 13(1), a consent could be granted under s. 9(1) only if the Minister were satisfied that the carrying out of the activity in question was consistent with the publication, conservation and preservation (within the meaning of the Convention) of the World Heritage values of the area; (iv) the Minister could not consider under s. 9(1) economic or commercial effects or general environmental impacts unrelated to World Heritage values; (v) the Minister could have regard to the cumulative impact on the World Heritage values of the proclaimed area of activities which were facilitated by the acts for which the consents were sought, when considering whether the consents would be consistent with the protection, conservation or presentation of that area; and (vi) in considering decisions under ss.10(3) and (4) of the World Heritage Act, the Minister could consider, in addition to World Heritage values, general economic, commercial and other considerations, including the impact on the National Estate. 54. The briefing paper addressed the approach available to the Minister on the question of granting consent: "In considering whether carrying out each particular activity for which consent is sought is consistent with the `protection, conservation and presentation' of the proclaimed area, you are entitled to be cautious. If your mind is evenly balanced on the issue you would be entitled to refuse consent. If you are inclined toward granting a consent but are concerned about some matters relevant to the conservation, protection or preservation of the proclaimed area that you feel could be addressed by, for example, the existence of a management plan or an undertaking by the proponent, then you would be entitled to indicate that. If a relevant plan or undertaking were to be provided you would be entitled to take that into account in making a decision". 55. The briefing paper also considered the operation of the AHC Act: "Decisions granting consent under s.10(3) and 10(4) of the Act will attract the operation of the AHC Act if the activities permitted under the consents adversely affect a place that is part of the national estate. By virtue of s. 30(1) of the AHC Act, if the activities permitted under the consents adversely affect a place that is part of the national estate, you must not give consent under s. 10(3) and 10(4) unless you are satisfied that there is no feasible and prudent alternative to the giving of the consent and that all measures that can reasonably be taken to minimise the adverse effect on the National Estate will be taken. The Australian Heritage Commission ("the AHC") strongly recommended that impacts on Aboriginal heritage values should be considered (see GBRMPA stakeholders comments and letter to GBRMPA from the AHC at Attachment 11). The AHC does not specify these values but notes that they are likely to exist in the Channel and its National Estate surrounds including Hinchinbrook Island. The AHC letter also raises the potential for impact on National Estate listed places in the hinterland, particularly in the Cardwell Ranges. It is, in our view, unlikely that any consents you might consider granting would impact directly on these areas. There is an opportunity to consider management arrangements to minimise any consequential effect and we note that the draft Wet Tropics Management Plan is relevant. The protection of Aboriginal Heritage values is also an object to be met in the development of a Hinchinbrook Channel Regional Plan." 56. The briefing paper then considered in some detail conflicting views expressed in relation to beach and foreshore management and the dredging of the main access channel. The paper suggested that the Minister might be disposed to grant consent for initial dredging, but require Cardwell Properties to provide, by deed, a commitment to use best engineering practice and to monitor and manage further maintenance dredging. 57. Under the heading "Overall Impact on World Heritage Values", the briefing paper observed that perhaps the most important World Heritage issue associated with the development of the resort was the potential direct and indirect impact on dugongs because of their reliance on seabed grasses and their susceptibility to being struck by boats. After considering a report on the issue from Professor Marsh, the paper stated that the Minister might reach the view that: "prior to providing any consents that will lead to the development of the Port and a significant associated increase in boat traffic, you wish to be assured by the Queensland Government that they will monitor dugong behaviour, and introduce management plans, including, if necessary, speed limits for all boats and key habitat zones from which boats are excluded. Any such action plan for the dugong could also address any other forms of anthropogenic threat to this creature such as gill netting or indigenous hunting." 58. Additional concerns relating to the scale of the resort near a sensitive region of the World Heritage area, including Hinchinbrook Island, were: "best addressed through interim and permanent management measures to ensure that World Heritage and National Estate values are not damaged. You might consider it important to have an undertaking from the Queensland Government in relation to the development of such a plan prior to granting any consents you might be considering." 59. The paper identified the options open to the Minister as follows: "In relation to each of the activities the subject of the applications for consent, the options open to you are as follows: you may consent to the activity under ss. 9(1), 10(3) and/or 10(4); or you may refuse consent to the activity under ss. 9(1), 10(3) and/or 10(4); or you may defer a decision pending the provision of additional assurances." A Tentative View 60. On 9 July 1996 the Minister issued a press release stating that, on the basis of advice, he was satisfied that: "provided best practice engineering approaches are used, the activities proposed could be carried out in a manner which is consistent with the protection, conservation and presentation of the World Heritage Values of the area and without causing any significant damage to the immediate environment around Oyster Point." 61. The Minister further stated that he was inclined to grant consent, but wished to be satisfied that best practice engineering practices could be adequately provided for by legally binding arrangements. He also wished to finalise details of a process to develop an integrated management plan which would address the broader development issues facing the Hinchinbrook area. In addition, he would consider the representations of the Queensland Minister and the comments of the Australian Heritage Commission ("AHC"). 62. On 10 July 1996, the Minister wrote to Mr Williams of Cardwell Properties stating that he was inclined to grant the consents, other than for the application in relation to the breakwaters, which had been withdrawn. He invited Cardwell Properties to enter discussions to put in place management practices by way of a deed or otherwise, which would make provision for: . stabilisation of the foreshore; . monitoring continuing erosion; . controlling the impact of acid sulphate soil; and . ensuring best practice dredging. 63. On the same date, the Minister wrote to his Queensland counterpart, expressing the view that: "an agreement between your Government and the Commonwealth to put in place appropriate measures to develop management arrangements for the entire Hinchinbrook Channel region would be the most appropriate mechanism for dealing with concerns arising from the development pressures within the region, including concerns expressed about the long term impact of the proposed development at Oyster Point. I envisage such a plan would address the issues raised in my Department's letter of 11 June 1996, and in particular the protection of dugong and seagrass, but may well pick up additional matters such as control of day visitors to Hinchinbrook Island and appropriate provision for the protection of Aboriginal cultural heritage. The Commonwealth has already agreed to provide financial assistance for its development." Advice from the AHC 64. In a letter dated 25 July 1996, and in subsequent correspondence, the AHC expressed the view that granting consents to the proposed actions would have adverse effects on some National Estate values immediately within the proclaimed World Heritage area and potentially significant, long term adverse effects on the National Estate values in the wider region. The three national estate areas identified by the AHC as most affected by the proposal were the Great Barrier Reef area, the Cardwell Range-Herbert River Gorge area and the Wet Tropical Forests of North Queensland. The AHC acknowledged that some of the adverse impacts could be substantially lessened by appropriate measures, such as those proposed for in a deed of agreement or a Regional Management Plan. However, on balance, it considered that there would be adverse effects on the National Estate because of the scale of the development, the nature of the environment, the lack of certainty in predicting the impact of the development and difficulty of ensuring compliance with conditions and planning measures. The AHC made detailed comments as to the impact on National Estate values and suggested measures to be included in any deed of agreement or Regional Management Plan which it considered essential to minimise the impact of the proposed development. 65. On 7 August 1996, the Minister wrote to the Chair of the AHC. He stated that, in view of the AHC's opinion that there would be an adverse impact on National Estate values within the proclaimed area, he formally advised the AHC, in accordance with s.30(3) of the AHC Act, that he proposed to give consent to the dredging of the marina access channel to the beach and foreshore management plan. He invited the AHC to comment on the proposed consent. 66. The AHC did so on 9 August 1996. The AHC repeated the view expressed in its earlier letters. It referred to the draft deed which had been prepared and noted that the deed addressed many of its concerns. However, the AHC considered that there were still potentially a number of adverse effects and suggested that amendments should be made to the deed to address its concerns. The AHC also observed that the Regional Hinchinbrook Management Plan would be prepared in accordance with Queensland law over the succeeding 12 months, but that it (the AHC) would only be able to comment once the Plan was prepared. Advice of 14 August 1996 67. On 14 August 1996, the Executive Director of the Environment Strategies Directorate within DEST provided further advice to the Minister. The advice included an attachment analysing the consent applications. The attachment contained the following conclusion and advice: "On the basis of the scientific evidence, all of the measures contained in the Deed of Variation and for which provision is made in the regional planning arrangements, it is the Department's view that the revised BFMP (beach and foreshore management plan) as described in Schedule 3 to the Deed of Variation can be implemented consistently with the protection, conservation and presentation of the World Heritage. For the purposes of your decisions under s. 9 of the Act, therefore, your consent to the acts itemised above is consistent with the protection, conservation and presentation of the World Heritage property. For the purposes of your decisions under s. 10 of the Act, taking into account all other relevant matters, including economic and commercial considerations, and matters relating to the National Estate, each of the acts for which consent is required as part of the revised BFMP could be carried out consistently with the protection, conservation and presentation of the World Heritage property and without any significant damage to the immediate environment around Oyster Point. ... I reiterate that in relation to decisions under s.9(1) of the Act, you may consider only such evidence that is relevant to the protection, conservation and presentation of World Heritage. Under s.10(2), (3) and (4) you are also required to consider all other relevant evidence and must consider the potential social, economic and commercial impacts as well as issues arising by virtue of your responsibilities under the AHC Act relating to the National Estate." Deed of Variation 68. On 20 August 1996, a deed of variation was executed by and on behalf of Cardwell Properties, Cardwell Shire Council, the State of Queensland and the Commonwealth. The purpose of the deed of variation was said to be to amend the deed of 29 September 1994 ("the 1994 deed"), which governed the development of the Port Hinchinbrook site, so as to include the Commonwealth as a party: cl.3. The deed of variation recited, inter alia, that Cardwell Properties had resolved to seek variations of certain consents and approvals it held to accommodate certain concerns of the Commonwealth and that the company had applied for Ministerial consent under the World Heritage Act to do certain acts. It recited that, before the Minister was prepared to make a decision on the grant of consents, he required the company to enter into "certain legally enforceable arrangements to ensure the protection, presentation and conservation of the world heritage values in relation to the Proclaimed Areas". 69. The deed provided for the site to accommodate a maximum of 1500 people (cl.20.1). The company was not to construct more than two levels of accommodation and one level of carpark (cl.20.2). However, the highest building base could be up to six metres above the highest astronomical tide (cl. 20.3). Except with consent of the Council, maximum building height measured from the base was to be 13 metres to the top of the roof, except for special purpose buildings which had a limit of 15 metres (cl.20.4, 20.5). Buildings could be constructed up to 20 metres from the seaward boundary of the site (cl.20.6). 70. The company was to comply with all applicable laws, regulations, management plans and draft management plans with respect to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (cl. 19.1). Clause 19.2 provided as follows: "Any of the Company's proposed activities in regional, national or marine parks which may result in new or significantly increased impact or visitations, without limitation, must be consistent with the conservation, protection and presentation of world heritage property, and any management plan or draft management plan prepared by the Department and notified to the Company". 71. The deed provided that Cardwell Properties could not assign its interest under the deed or change its beneficial holding (unless it was a listed company) without the consent of the other parties (cl.25.1, 25.2). The other parties could consent to the proposed assignment if the assignee covenanted with each of those parties to comply with Cardwell Properties' obligations under the deed (cl.25.5). 72. Further reference will be made to the terms of the deed as varied when I consider the reasons given by the Minister for his decision to grant consents for certain activities. The Memorandum of Understanding 73. On the same date as the deed of variation was executed, 20 August 1996, the Commonwealth and the State of Queensland entered into a Memorandum of Understanding (the "MOU"). By way of background, the MOU recorded that the Commonwealth and Queensland had entered into the agreement to: "ensure that any resort or other commercial development which is approved in the Hinchinbrook region, including the proposed development at Oyster Point by Cardwell Properties Pty Ltd, is carried out in accordance with interim arrangements and final regional management plans which ensure natural and cultural values are adequately protected." 74. The MOU provided for the establishment of a management committee consisting of one senior official from each of the Commonwealth and the State: cl.1.1. The management committee was required to: "agree on and use its best endeavours to implement a process to put in place: (a) interim management arrangements for the Hinchinbrook region as soon as possible should there be a demonstrated need; and (b) a final management plan for the Hinchinbrook region ... no later than 30 June 1998, with the parties and the Management Committee using their best endeavours to have the final plan in place by 31 December 1997 (cl. 1.2)". 75. The management committee was required to consult with the regional advisory committee established under the Coastal Protection and Management Act 1995 (Qld) (the "Coastal Protection Act") in relation to the interim management arrangements and final management plan: cl.1.3. In agreeing on a process the management committee was to have regard to the document entitled "Terms of Reference for the Cardwell/Hinchinbrook Regional Coastal Management Plan", attached to the MOU (the "Terms of Reference"). 76. The MOU identified the "main broad objectives" of the interim arrangements and the final plan for the Hinchinbrook region as follows (cl.2.1): ". protect and conserve natural and cultural values, particularly world heritage values; . provide for management of current and future activities which may impact individually or cumulatively on the region's environment, so that they are ecologically sustainable; . provide guidance for decision makers and stakeholders as to the acceptability or otherwise of current and proposed activities; . provide for ongoing community involvement in the management of the region's coast through participation in plan development and review; . provide for monitoring and reporting arrangements on effectiveness in meeting the plans' objectives; and . identify responsibilities and resource requirements for the plans' implementation." 77. The MOU also identified the values which needed to be addressed "with particular attention in the arrangements and plan", including the following (cl. 2.2): ". World Heritage, National Estate and other high conservation values including rare, threatened and endangered species; . critical and/or sensitive habitats, such as seagrass and mangroves; . Aboriginal sites and use values; . scenic values; . water quality; and . biodiversity." 78. The MOU specified a number of activities which had to be addressed and controlled under the plans (cl.2.3). These included: ". coastal development or construction; . mangrove removal, reclamation or other foreshore modifications; and . motorised water sports and boating operations generally, especially implementation of speed limits in areas of high dugong density". 79. The Commonwealth's responsibilities under the MOU were to advise the management committee on World Heritage and National Estate values to be protected and to make financial contributions to the process of developing the management plan: cl.3.1. The State's responsibilities were to advise the management committee on how the interim arrangements and the final plan would be formulated and implemented in accordance with the State's administrative and legislative framework and to meet certain costs and expenses: cl.3.2. 80. Clause 3.3 of the MOU was as follows: "3.3 Both the Commonwealth and the State, within their respective legislative and contractual powers, will use their best endeavours to ensure that the establishment of any resort or any other commercial development in the Hinchinbrook region is carried out in accordance with the interim arrangements and the final plan and any legislation relating to the protection of natural and cultural values for which the Commonwealth and the State are respectively responsible." 81. The Terms of Reference attached to the MOU noted that the development of a plan was identified as necessary during negotiations in relation to Oyster Point. The document also noted that it was proposed to expand this requirement and undertake a broader planning program for a wider area. It was said that such a program could best be achieved by developing a Regional Coastal Management Plan under the Coastal Protection Act, this being the first use of a "relatively new Act". 82. The Terms of Reference reproduced the objectives specified in the Coastal Management Act: ss.3, 31. They also reproduced the objectives set out in s.2.1 of the MOU and the values identified in cl.2.2 of the MOU. However, the Terms of Reference also included among the values which needed to be addressed "social and economic values". Social and economic values were not included in the list of values identified in cl.2.2 of the MOU. The Consents 83. On 22 August 1996 the Minister granted the consents which are the subject of challenge in the present proceedings. The instrument of consent revoked the consents granted on 15 September 1995 and gave the following consents under the World Heritage Act: . pursuant to s. 9(1), a consent to Cardwell Properties dredging the marina access channel; . pursuant to s. 10(2), (3) and (4) consents to Cardwell Properties dredging the marina access channel in the marina channel area; . pursuant to s. 9(1), a consent to Cardwell Properties removing fallen mangroves from specified areas and coppicing mangroves in some of these areas to a height of not less than four metres above average seabed level; . pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves seaward in the specified areas and coppicing mangroves seaward in some of those areas; . pursuant to s. 10(3), a consent to Cardwell Properties removing fallen mangroves landward in the specified areas and coppicing mangroves landward in some of those areas; and . pursuant to s. 10(4), a consent to Cardwell Properties removing fallen mangroves from the specified areas and coppicing mangroves in some of those areas. Release of Key Documents 84. On 11 September 1996, the Minister released "key documents" relating to the assessment process. The accompanying document contained the following paragraph: "I wish to emphasise the Commonwealth's commitment to the regional planning process. We understand Queensland share(s) our commitment to this process. The Commonwealth, however, has particular responsibility for protection of world heritage values. Accordingly, if for any reason the regional planning process does not deliver the required protection for world heritage values then I will use all powers available to me to protect world heritage values in the Hinchinbrook area, including those values in the Hinchinbrook Channel and on Hinchinbrook Island." Statement of Reasons 85. On 23 August 1996, the applicant requested the Minister to provide reasons for his decisions. On 8 October 1996, shortly after the present proceedings were instituted the Minister released a statement of reasons for his decisions under ss.9(1), 10(2), (3) and (4) of the World Heritage Act, that "consent be given for Cardwell Properties Pty Ltd to implement a revised Beach and Foreshore Management Plan and to dredge the marina access channel at Oyster Point, Queensland". 86. The reasons set out background information and noted that Cardwell Properties' proposed actions required consent: (i) under s.9(1), because they involved the company doing, in relation to areas proclaimed under the regulations, acts prescribed by reg. 3F; (ii) under s.10(2), to the extent they involved the company, being a trading corporation, doing in the proclaimed area acts prohibited by s.10(2)(d) and (h); (iii) under s.10(3), because they involved the company, being a trading corporation, doing acts (not already being unlawful under s.10(2)), which might damage or destroy the proclaimed area; and (iv) under s.10(4), because the acts referred to in (ii) and (iii) were to be done by the company, being a trading corporation, for the purposes of its trading activities. 87. The reasons record a finding by the Minister that the proposed dredging of the marina access channel could potentially have immediate and cumulative, continuing and consequential impacts on the proclaimed area, specifically through increased turbidity and maintenance dredging, both of which could damage seagrasses (para. 24). The Minister also found that independent scientists held the view that the dredging of the marina access channel could go ahead without significant impact on the immediate environment around Oyster Point provided best engineering practices were used. In particular, he found that techniques to control dispersion could be utilised to minimise the impact of dredging (para.25). 88. The Minister found that the potential impacts were addressed in the amended deed as follows (para. 26): "(a) all waters flowing from the land as a result of construction activities (which includes maintenance dredging) must, so far as turbidity is concerned, be of a quality at least equal to that of the receiving waters and, so far as pH is concerned, be within a pH range of 6 to 9 (Cl.7.1 of the Deed, as amended); (b) Cardwell cannot commence dredging until the Commonwealth approves the Turbidity Control Plan (TCP) (Cl.7.3 of the Deed, as amended); (c) all plans, including the TCP, are required to be prepared and implemented in accordance with best engineering practice (Clause 4.4 of the Deed as amended); (d) the TCP will deal with a number of key issues affecting water quality in Hinchinbrook Channel, namely marina de- watering, operation of spoil ponds, stabilisation of the development site, management of stormwater and the management of acid sulphate soils (Cl. 7.1 of the Deed as amended); and (e) the Commonwealth has various powers to ensure compliance, including certain powers of entry (clause 26 of the Deed as amended) and certain powers to remedy any default by Cardwell at the expense of Cardwell (clauses 7.8 and 24, as amended)". 89. The Minister further found that the parties to the amended deed had been advised that the Minister would not approve the TCP unless it provided for best practice engineering methods to be followed for the dredging of the marina access channel (para.27). 90. In relation to the proposed Beach and Foreshore Management Plan at Oyster Point, there was a risk that the actions under the Plan could increase turbidity and thus cause immediate and cumulative impacts on the seagrasses in the proclaimed area, which might adversely affect the dugong population (paras.29 and 30). However, the Minister found that adequate measures would be in place under the revised Plan and the amended deed to address the risk of any impacts associated with the actions under the Plan (see para. 32, where the relevant clauses of the amended deed are summarised). These included an obligation on Cardwell Properties to implement a revised Beach and Foreshore Management Plan; a requirement under the Plan that Cardwell Properties undertake new mangrove plantings in certain areas and refrain from clearing certain surviving mature mangroves; and provision for monitoring the affected areas. 91. The Minister found that the dredging of the marina access channel would lead to increased boating in the proclaimed area, which in turn would increase the risk of boats striking dugongs (para. 34). The Minister also found that: "(a) the potential impact...could be adequately addressed by the development and implementation of the proposed regional plan; (b) the proposed regional plan would provide for further studies to be undertaken into the status of dugong populations and for management arrangements to be put in place to protect, conserve and present this World Heritage value; and (c) it was likely that the proposed regional plan would be in force before the resort was operational" (para.35). 92. There was an increased risk of pollution in the proclaimed area from the operation of the resort and from increased numbers of visitors. However, these impacts had been adequately addressed in the deed and would be addressed in the proposed regional plan (para 36). The Minister concluded as follows (para 38): "Having regard to the protective arrangements which have been put in place and those that I expected would be put in place, I found that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant." 93. The reasons for the decisions to grant consents under s.9(1) of the World Heritage Act were expressed as follows: "39. In determining whether to give consents under s. 9(1) of the Act, I had regard only to the protection, conservation and preservation (sic - presentation) (within the meaning of the Convention) of the proclaimed area. 40. I considered the potential immediate and direct impacts of the proposed actions on the proclaimed area. I also gave consideration to potential cumulative, continuing and consequential impacts on the proclaimed area, recognising that granting consents would facilitate the construction and operation of the resort. 41. On the basis of the findings in paragraphs 24-38 I concluded that any such potential impacts would be limited and ameliorated by the protective measures provided for in the revised (Plan) and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought." 94. The Minister then addressed the reasons for granting consents under s. 10(1) of the World Heritage Act. He found that there were potential impacts flowing from the size of the proposed resort and marina, including increased boating and a large number of day visitors (para.43). There was a risk of boats striking dugongs and the Great Barrier Reef World Heritage area could be adversely affected unless appropriate management arrangements were put in place (paras.45-46). The Minister also found that the potential impacts could be adequately addressed through the development and implementation of the proposed regional plan (para.47). Other relevant findings included the following: . management plans for the Wet Tropics World Heritage area and for Hinchinbrook Island were likely to be finalised and in place before the resort was operational; such plans would be likely to ensure the protection, conservation and presentation of the Hinchinbrook region environment (para.48); . under the deed as varied, Cardwell Properties had to comply with laws, regulations, plans and draft management plans relating to the conduct of commercial activities in regional, national and marine parks adjacent to the development site (para.49); . the proposed regional plan would provide for management arrangements, including further studies, to be put in place to conserve the dugong population and it was likely that the arrangements would include the regulation of boat speeds and identification of areas from which boats would be excluded (para. 50). 95. The statement of reasons continued as follows: "52. Having regard to the protective arrangements which had been put in place and those that I expected would be put in place, I found that the risk of: (a) adverse impacts on environmental values of the proclaimed area other than World Heritage values; or (b) adverse impacts on environmental values of the adjacent areas and the surrounding region, including but not limited to World Heritage values, as a result of the proposed actions and the construction and operation of the resort and the marina, was so low as in all the circumstances to be insignificant. 53. I found that because granting consent would facilitate the development of the resort it would accordingly deliver significant economic and commercial benefits to the Cardwell region. These benefits would be delivered principally through increased employment opportunities and through increased economic activity associated with the operation of the resort and with the growth in tourist numbers. However, I gave such considerations relatively little weight. 54. I accepted that the giving of consents under s. 10 of the Act would be an action that might adversely affect, as part of the national estate, a place that is in the Register of the national estate, within the meaning of s.30(1) of the AHC Act. Accordingly, for the purposes of my decisions under s.10, I gave consideration to the matters set out in s.30(1) of the Act. 55. I found that there was no feasible and prudent alternative to the giving of the consents and that all measures that could reasonably be taken to minimise any adverse effect on the National Estate would be taken. ... 58. On the basis of (previous) findings I concluded that any such potential impacts on the proclaimed area would be limited by the protective measures provided for in the revised (Plan) and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought. 59. In relation to the adjacent areas and the surrounding region, I concluded, on the basis of the (previous) findings that any potential adverse impacts would be limited and ameliorated to such an extent by the proposed management arrangements that granting the relevant consents would - (a) be consistent with the protection; conservation and presentation of World Heritage values; and (b) ensure an adequate level of protection for National Estate values and other environmental values." 96. The Minister accepted the AHC's view that giving consent to the proposed actions under s.10 might adversely affect each of the three listed National Estate areas (para.65). He considered that there were alternatives to giving consents, namely, to refuse all consents; to refuse consent to the dredging, thereby preventing establishment of the marina; or to refuse consent unless Cardwell Properties agreed to reduce the size of the resort (para.68). The Minister found that if any of the alternatives was adopted, Cardwell Properties would refuse to proceed with the project and that the region would lose significant commercial and economic benefits (paras.69-70). Accordingly, the Minister concluded that none of the alternatives was feasible or prudent (para.72). Moreover, having regard to the finding that each of the proposed plans was likely to be in force before the resort became operational, all measures that could reasonably be taken to minimise the adverse effects on the region would be taken (paras. 75-76). THE ISSUES 97. The Applicant's Contentions As is often the case in challenges to decisions on administrative law grounds, the applicant relied on a large number of arguments, some of which overlapped. In brief, as I understood them, the principal grounds relied on under that Act were the following: (i) The Minister's consent under s.9(1) of the World Heritage Act was an exercise of the power so unreasonable that no reasonable person could have so exercised it: ADJR Act, s.5(1)(e), (2)(g). Given the warnings to the Minister of adverse impacts on World Heritage values, it was unreasonable for him, in effect, to rely on the Government of Queensland to take the necessary action to eliminate or minimise those impacts. (ii) In any event, the Minister misconstrued the statutory power under the World Heritage Act: ADJR Act, s. 5(1)(d), (f). Section 9(1) of the World Heritage Act, in the light of s.13(1), empowered the Minister to grant consent only if satisfied that there would be no material adverse impact on the protection and conservation of the proclaimed property. The Minister did not satisfy himself of these matters at the time he made the decision. Rather, he allowed others to address the issue at a later stage, in the context of management plans or other measures to be taken by State authorities. Thus the Minister had improperly deferred consideration of relevant questions: ADJR Act, s. 5(1)(e). (iii) As a matter of construction of the World Heritage Act, the Minister was not entitled to take account of what he believed the State would or might do pursuant to State laws, plans or schemes. To do so constituted an error of law by taking into account an irrelevant consideration: ADJR Act, s.5(1)(e), (f), (2)(a). Moreover, the Minister had failed to pay regard to the provisions of the Convention in exercising his powers under ss.9 and 10 of the World Heritage Act. (iv) The Minister erred in law because he mistakenly assumed that he had no power to impose conditions on any consent granted under ss. 9 and 10 of the World Heritage Act: ADJR Act, s. 5(1)(f). By reason of this mistake, he approached the question of controls by means of the deed as varied and the MOU, rather than conditions imposed on Cardwell Properties. (v) The Minister failed to give consideration to the landscaping of the development site, thereby overlooking a factor relevant to the scenic features of the proclaimed area and nearby places on the Register of the National Estate: ADJR Act, s.5(1)(e), (2)(b). (vi) The Minister erroneously took into account the matters specified in s.30 of the AHC Act only in relation to the decision required under s.10 of the World Heritage Act and not in relation to the decision under s.9: ADJR Act, s.5(1)(e), (f), (2)(b). (vii) The grant of consents under s.9(1) of the World Heritage Act took into account an irrelevant consideration, because the terms of reference for the regional management plan, annexed to the MOU, specifically required social and economic values to be taken into account: ADJR Act, s.5(1)(e), (2)(a). (viii) Although the Minister claimed not to have taken into account social and economic factors in granting consents under s.9(1) of the World Heritage Act, in fact he did so, thereby taking into account irrelevant considerations: ADJR Act, s.5(1)(e), (2)(a). (ix) In exercising his powers under the World Heritage Act and the AHC Act the Minister failed to apply the "Precautionary Principle", that decision-makers should be careful to prevent irreversible harm to the environment in circumstances of scientific uncertainty concerning the nature and scope of environmental harm. Thus he failed to take account of a further relevant consideration: ADJR Act, s.5(1)(e), (2)(a). (x) The Minister failed to give proper, genuine and realistic consideration to the requirement in s.30(1) of the AHC Act to consider whether there were feasible and prudent alternatives to the granting of consent and, in any event, his determination on this question was manifestly unreasonable: ADJR Act, s.5(1)(e), (2)(g). Common Ground 98. There was some common ground between the parties. That common ground related to the test applied by the Minister in order to determine whether consents should be granted under s.9(1) of the World Heritage Act. 99. Section 9(1) imposes a prohibition, by making it unlawful to do a prescribed act in relation to proclaimed property, except with the Minister's written consent. The most important prescribed acts in the present case were excavating (including dredging) in the relevant areas of Hinchinbrook Channel and killing, removing or damaging native plants in those areas: World Heritage Properties Conservation Regulations (as amended), reg.3F(2)(a),(b). Section 13(1) of the World Heritage Act provides that in determining whether or not to give a consent pursuant to s.9(1) in relation to any property to which s.9 applies, the Minister "shall have regard only to the protection, conservation and presentation...of the property" (emphasis added). 100. The reference to "property" in s.13(1) is to the particular property which forms part of the World Heritage - in this case the portions of Hinchinbrook Channel described in the proclamation under s.6(3) of the World Heritage Act. Thus, the Minister is to have regard only to the protection, conservation and presentation of that property: Tasmanian Dams, at 143, per Mason J. That leaves unresolved the meaning of the words of s.13(1) quoted in the previous paragraph. 101. In Tasmanian Dams, Mason J said (at 143) that the terms of s.9(1) "may mean that the Minister is bound to refuse consent when (a) the applicant fails to satisfy the Minister that a proposed activity or development is consistent with the "protection, conservation and presentation" of the property; or (b) the Minister's mind is evenly balanced on that issue. The scope of the Minister's discretion in s.13(1) is therefore narrower than the discretion to grant or refuse consent in regs.5(1) and (2) of the World Heritage (Western Tasmania Wilderness) Regulations which enables the Minister to take into account and balance considerations which compete against the protection and conservation of the property." 102. This construction of s.9(1) was described by Mr Hilton SC, who appeared with Mr Faulkner for the Minister, as imposing a stringent test, in the sense that the Minister could only grant consent if positively satisfied that a proposed activity is consistent with the protection, conservation and presentation of the relevant property. 103. The language of s.9(1) is open to another, less stringent, construction. In Richardson v The Forestry Commission (1988) 164 CLR 261, Mason CJ and Brennan J commented on s. 18(1) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth). The sub- section provided that, in determining whether or not to give a consent under s. 16, inter alia, to forestry operations, the Minister "shall have regard only to Australia's obligations under" the Convention. It was therefore framed in language very similar to that used in s. 13(1) of the World Heritage Act. Mason CJ and Brennan J said (at 293) that s. 18(1): "should be understood as disentitling the plaintiff to refuse consent except when refusal is necessary for the protection of the heritage or otherwise for the satisfaction of Australia's obligations under the Convention". 104. Compare at 335, per Toohey J; at 348, per Gaudron J. 105. Clearly enough, the test suggested by Mason CJ and Brennan J in Richardson v Forestry Commission is less stringent than that proposed by Mason J in Tasmanian Dams (whose comments on this point were not referred to in the later case). This is because, on the construction adopted by Mason CJ and Brennan J, the Minister is bound to grant consent to the acts otherwise prohibited unless he or she determines that refusal is necessary to achieve the specified standard (namely, in the case of s.9(1), the protection, conservation and presentation of the relevant property). 106. Mr Hilton submitted that, whichever approach to s. 13(1) is correct as a matter of construction, the Minister in fact applied the more stringent test laid down by Mason J in Tasmanian Dams. This test was less favourable to Cardwell Properties, since it was less likely to result in the granting of consent to the actions otherwise prohibited by s.9(1). Mr Hilton pointed to the language used by the Minister in para.41 of the reasons, together with the Minister's conduct in deferring the granting of consents in July 1996 until satisfied that adequate protective arrangements were in place as supporting this conclusion. Mr Tobias QC, who appeared with Dr Griffiths for the applicant, accepted that this submission was correct. 107. This is a matter of some importance. It means that the Minister, in determining whether or not to grant consents under s. 9(1), applied a test the correctness of which is not challenged. While the applicant contends that the Minister committed other errors of law, it is not suggested that he did otherwise than apply a test at least as stringent as that laid down by s.9(1). It is appropriate to bear in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The joint judgment (Brennan CJ, Toohey, McHugh and Gummow JJ), referred with approval (at 272) to the observation of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that the "reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." 108. Their Honours continued (at 272): "These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin ((1990) 170 CLR 1, at 35-36): The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 109. See also at 291-292, per Kirby J. A Preliminary Question: The Relationship between Consents given under ss. 9 and 10 of the World Heritage Act 110. The Commonwealth, supported by Queensland, submitted that, if the Minister validly granted consent to an act pursuant to s. 10 of the World Heritage Act, that consent is sufficient to authorise the act even if the Minister's purported consent to the same act under s. 9 is invalid or liable to be set aside. Mr Hilton pointed out that the Minister had consented to the dredging of the marina access channel under ss. 9(1), 10(2), 10(3) and 10(4) of the Act. Similarly, he had consented to the coppicing of mangroves pursuant to each of those sub- sections (although the consents under s.10(2) and (3) covered different areas). It was enough to make the acts of dredging and coppicing lawful that the Minister had validly consented under s.10, regardless of whether the consents granted under s.9 were invalid or liable to be set aside. It followed that if there were any defects in the consents under s.9, they had no legal significance provided the relevant acts had been the subject of valid consents under s.10. 111. The starting point for the argument was that the World Heritage Act had been drafted in reliance upon distinct heads of Commonwealth legislative power. Sections 6 and 9, as Tasmanian Dams showed, were enacted pursuant to the external affairs power (Constitution, s.51(xxix)), while ss.7 and 10 were supported by the corporations power (Constitution, s.51(xx)); see Tasmanian Dams at 142-144, 146- 153, per Mason J; 170-179, 179-180, per Murphy J; 235-239, per Brennan J; 253-268, 268-272, per Dean J; Richardson v Forestry Commission at 289-290, per Mason CJ and Brennan J. The legislative intention, according to Mr Hilton's argument, was that the Commonwealth should be able to prohibit acts likely to damage or destroy World Heritage values unless the Minister granted consent to those acts. If consent was given, the source of the statutory power was immaterial; the effect was to remove the prohibition on the acts covered by the consent. 112. In my view, this submission is not consistent with the language and structure of the World Heritage Act. It is undoubtedly correct that Parliament invoked different heads of constitutional power when enacting, respectively, ss.6 and 9 and ss.7 and 10 of the Act. It may also be, although this is less clear, that s. 13 was enacted because the drafter took a more limited view of the scope of the external affairs power than was ultimately adopted by the High Court. These factors do not, however, lead to the conclusion that the Minister's consent to an act, granted under s.10, suffices also to authorise that act under s.9. It remains necessary to pay close attention to the statutory language. 113. Section 9(1), in its amended form, provides that, when an act is prescribed, it is unlawful except with the Minister's written consent. The Minister, in deciding whether or not to give a consent pursuant to s.9, must have regard only to the criteria specified in s.13(1). Those criteria, as the Minister expressly accepted in his reasons for the decision to give the consents, are narrower than those that can be taken into account in deciding whether or not to give consent under s.10 of the Act. Whatever the historical reasons for the drafting of ss.9, 10 and 13, the fact is that the giving of consent under s.9 is governed by different statutory standards than the giving of consent under s.10. This suggests very strongly that the expression "consent in writing" used in s.9(1) is intended to mean a consent granted pursuant to that sub-section and not one granted under some other provision of the Act. 114. A further consideration is that s.9(1) prohibits "an act prescribed for the purposes of (the) subsection", while s.10(2) prohibits specified acts on property to which the section applies if carried out by a corporation. It is true that in the present case reg.3F prescribed acts for the purposes of s.9(1) which correspond, albeit not precisely, to some of the acts expressly prohibited by s.10(2). However, there is no necessary connection between acts prohibited by s.10(2) and acts prescribed for the purposes of s.9(1). This reinforces the conclusion that the prohibition in s.9 is intended to operate independently from that imposed by s.10 and that a consent granted under s.10 does not have the effect of a consent under s.9. Were it otherwise, the restrictive criteria stated in s.13(1) would have no practical effect where the Minister gives consent, pursuant to the broader discretion conferred by s.10, to acts to be carried out by a corporation. 115. It follows that it is necessary to consider the challenges made by the applicant to the Minister's consents given under s.9 of the World Heritage Act, even if the Minister's consents under s.10 are not liable to be set aside. V REASONING Unreasonableness 116. Mr Tobias placed the issue of unreasonableness at the forefront of his challenge to the Minister's decision to grant the consents under ss.9 and 10 of the World Heritage Act. It will be recalled that s.5(2)(g) of the ADJR Act provides that the reference in s.5(1)(e) to the "making of a decision (being) an improper exercise of the power conferred by the enactment" includes a reference to an exercise of power "that is so unreasonable that no reasonable person could have exercised it". 117. There is a tension between the principle, most recently re-stated in Minister v Wu, that courts should avoid intruding into the merits of administrative decisions and the grounds of review embodied in ss.5(1)(e) and (2)(f) of the ADJR Act. The tension arises because the unreasonableness ground is "inescapably concerned with the substantive quality of the impugned decision": M Aronson and B Dyer, Judicial Review of Administrative Action (1996), at 365. In Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24, at 42, Mason J saw the tension as requiring that: "a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits". 118. Mason J's warning is reflected in may other judicial observations. In Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, Lord Diplock said that irrationality, which he equated with Wednesbury unreasonableness, applied to a decision (at 410): "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at". 119. Lord Diplock was concerned to establish or confirm rationality as an independent ground of judicial review, so that his comments are not necessarily to be read as intended to limit the scope of that ground. See also Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 (FCA/Einfeld J), at 140. 120. Be that as it may, there is other powerful support for the proposition that great care should be taken before applying the Wednesbury unreasonableness ground of judicial review. In Attorney- General for New South Wales v Quin (1990) 170 CLR 1, at 36, Brennan J characterised the ground as "extremely confined" and emphasised that courts must resist the temptation to draw the bounds of legal reasonableness too tightly, merely according to their own opinions. He cited the observation of Professor Wade (Administrative Law (6th ed. 1988), at 407) that courts "must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislation is presumed to have intended." 121. His Honour added this observation (at 37): "If the courts were to assume a jurisdiction to review administrative acts or decisions which are 'unfair' in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ". 122. See also Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 (FCA/Lehane J) at 303-304. 123. Despite the manifestations of judicial caution, Gummow J has discerned a greater willingness in recent times to grant review of administrative decisions on the unreasonableness ground: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153 (FCA/Gummow J) at 166. In Luu v Renevier (1989) 91 ALR 39 (FCA/FC), one of the examples cited by Gummow J, the Court concluded as follows (at 50): "One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained." 124. Apart from Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, to which Gummow J also referred, other cases support the suggestion that a more generous view has been taken of the ground: Tickner v Bropho (1993) 40 FCR 183 (FCA/FC), at 197- 199, per Black CJ (applying Luu v Renevier); Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (FCA/FC) (allocation of catch quotas was "capricious and irrational" as it was based on a statistical fallacy); Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 (FCA/Burchett J) (factual conclusions so at variance with the material before the decision-maker as to be unreasonable). In Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 (FCA/FC), Sheppard J expressed (at 87) a preference for a test of unreasonableness which used less "vehement and extreme" language than that employed by Lord Diplock in CCSU v Minister, although his Honour did not put forward an alternative formulation. 125. The unreasonableness ground has been invoked by Australian courts sufficiently often that it is difficult to regard the ground as available only in the very rarest of cases. Even so, it is necessary to bear in mind the cautionary principles stated in the High Court, reflecting the importance (in Brennan J's phrase) of the courts not placing their own "legitimacy at risk": Quin, at 38. In the present case, the World Heritage Act entrusted the Minister with the authority to grant consents to acts prescribed for the purposes of s.9(1) or specified in s.10(2). The Minister was, of course, bound to apply the criteria laid down by the Act and otherwise to act lawfully. I deal elsewhere with the challenges to the legality of the consents on grounds other than unreasonableness. But it is not lightly to be concluded that he acted so unreasonably that no reasonable person could have granted the consents. 126. Mr Tobias based the applicant's argument on the Minister's acceptance that the dredging of the marina access channel could have an adverse impact on the seagrasses in the proclaimed area and would lead to increased boating in the area, as well as leading to visits by larger numbers of people. The Minister acknowledged that the activities to which he was granting consent created a risk of death and injury to marine animals, including dugongs and turtles. He also acknowledged, more generally, a risk of pollution in an area with fragile eco-systems. Mr Tobias contended that it was manifestly unreasonable for the Minister to rely on the deed and the MOU (which contemplated the preparation and implementation of a regional management plan under State law) as adequately addressing the identified potential adverse impacts. 127. Mr Tobias put forward a number of criticisms of the proposed management regime. First, the MOU did not purport to create legally enforceable rights and obligations between the Commonwealth and Queensland. The management committee was merely to use "its best endeavours to implement a process to put in place" interim management arrangements and a final management plan. Interim arrangements were dependent upon a "demonstrated need". Secondly, there was no assurance or requirement that interim arrangements would be agreed to or that a plan would come into force before the resort was operational. Thirdly, the Minister had effectively entrusted the preparation and implementation of interim and final arrangements for a plan to Queensland, taking the matter out of the hands of the Commonwealth. Further, the Minister was relying on Queensland to provide the resources and expertise to enforce any managements that might ultimately be put in place. Fourthly, it was unrealistic for the Commonwealth to suggest (as the Minister did when releasing the key documents) that if the regional planning process did not deliver the required protection for World Heritage values, the Minister would use all powers open to him to protect those values in the Hinchinbrook area. By that time, according to Mr Tobias, the pressures to allow a substantial commercial development to proceed would be irresistible. Finally, the deed only created contractual rights and obligations. It did not, for example, allow the Commonwealth to take steps directly against third parties whose actions might threaten World Heritage values.