Tasmania appears to be a focal point for Federal Court decisions with respect to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). A recent decision of the Full Court of the Federal Court has considered the definition of an ‘action’ as it relates to State Government decisions regarding works where it is also the proponent or where, as a result of the decision, it is required to actively monitor those works.
The definition of ‘action’ is important, because only proposed ‘actions’ may require environmental assessment and approval under the EPBC Act.
Section 524 of the EPBC Act excludes certain government authorisations from being an ‘action’. In determining the extent of such a government ‘authorisation’, the Full Court made a distinction between the deliberative steps leading up to a decision and the decision itself, and actions consequential on the decision. According to the Full Court, the decision and the deliberative steps leading up to a decision are not an ‘action’. However, the physical works or other activities or undertakings that are consequential upon the decision could be ‘actions’ for the purpose of the EPBC Act. For example, carrying out works to implement conditions of consent.
Whilst this might seem straight forward, the facts in Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated  FCAFC 129suggest otherwise.
On 7 February 2013 a coastal strip of land known as the Western Tasmania Aboriginal Cultural Landscape was included in the National Heritage List made under the EPBC Act because, in summary:
during the late Holocene, Aboriginal people on the west coast of Tasmania and the southwestern coast of Victoria developed a specialised and more sedentary way of life based on a strikingly low level of coastal fishing and dependence on seals, shellfish and land mammals; this way of life is represented by Aboriginal shell middens, which lack the remains of bony fish but contain ‘hut depressions’; the area has ‘the greatest number, diversity and density of Aboriginal hut depressions in Australia’; and the ‘hut depressions together with seal hunting hides and middens lacking fish bones …are a remarkable expression of the specialised and more sedentary Aboriginal Way of life.
In 2014, the Secretary of the Tasmanian Department of Primary Industries, Parks, Water and Environment and the Parks and Wildlife Service developed a proposal to open three tracks in the Western Tasmanian Aboriginal Cultural Landscape to recreational vehicles. The three tracks are identified in the following map:
The proposal included:
the Secretary designating parts of the land as a ‘designated vehicle area’ in accordance with the National Parks and Reserved Land Regulations 2009 (Tas); the Secretary attaching three conditions to the designation, including:
a fee being levied on each driver; each driver attaching a GPS device to their vehicle; and a Recreational Driver – Special Pass being issued to each driver;
carrying out actions to implement the conditions in relation to individual drivers; and carrying out, or directing others to carry out, works in and around the tracks to facilitate recreational vehicles being driving on the tracks including:
constructing new sections of track; spreading gravel over Aboriginal cultural heritage; placing rubber matting over Aboriginal cultural heritage with star pickets or other means of fastening the rubber matting in place; installing culverts, fencing or track markers; and carrying out rehabilitation works.
Was Tasmanian Government’s proposal an ‘action’ for the purposes of the EPBC Act?
The initial decision
The Tasmanian Aboriginal Centre sought a declaration from the Federal Court that the Secretary’s proposal constituted an ‘action’ under the EPBC Act that was likely to have a significant impact on the National Heritage Value of the Place.
An ‘action’ is defined in section 523 of the EPBC Act as including:
(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).
The matter was initially considered by Justice Mortimer in the Federal Court. She identified that the definition of ‘action’ in section 523 is deliberately broad. She said:
It may… be constituted by a series of steps, conduct and processes that are properly to be considered as a whole rather than individually and in isolation from one another.
For that reason Justice Mortimer concluded that the correct characterisation of the Secretary’s proposal was an ‘undertaking’ (and therefore an ‘action’), having regard to:
the physical works to be carried out; the change in status or character of the three tracks under the National Parks and Reserved Land Regulations 2009 (Tas); and the ongoing administration and management of the area.
She referred to these steps, stages or activities as forming a ‘connected series…of smaller activities or instances of conduct that form the greater whole’.
Justice Mortimer then considered whether the exemption from the definition of ‘action’ in section 524 of the EPBC Act applied to the Secretary’s conduct. Section 524(2) states:
A decision by a government body [including a State, Territory and an agency of a State or Territory] to grant a governmental authorisation (however described) for another person to take an action is not an action.
Justice Mortimer concluded that the exemption did not apply for two reasons:
A designation under the National Parks and Reserved Land Regulations 2009 (Tas) is not an ‘authorisation’ as referred to section 524 of the EPBC Act. Rather, by exercising an executive power, the Secretary was changing the character of the area from ‘reserved land’ on which a prohibition against driving vehicles operates to ‘reserved land’ which is a ‘designated vehicle area’. Section 524 only applies to a governmental authorisation ‘for another person to take an action’. Because the designation is not the grant of permission to an individual driver, it is not a decision that authorises an action of another person. In this regard, Justice Mortimer said:
s524 assumes a clear line can be drawn between a decision to grant permission to a person to do something, and the doing of that thing by the person. No such clear line exists with the respondent’s conduct here: rather their conduct is a series of steps beginning with the change of the character of reserved land, involving regulation of vehicle drives but also involving a series of activities by or on behalf of the respondents to manage the area in which the tracks are located, and to attempt to mitigate the effects of the conduct of those vehicle drivers.
Justice Mortimer’s reasoning was appealed to the Federal Court of Australia Full Court. The Full Court found that Justice Mortimer’s interpretation of section 524(2) was ‘overly narrow’. It said that the designation, and attaching of conditions, by the Secretary under the National Parks and Reserved Land Regulations 2009 (Tas), was in fact a decision by a government body to grant a governmental authorisation for other people to take an action. The Full Court reasoned that:
the singular reference to ‘another person’ in section 524(2) should be read as including the plural ‘other people’; and the action in these circumstances which is taken by ‘other people’ is the action of driving a vehicle in the given area.
In this respect the Full Court had difficulty with a government decision being an ‘action’ in the context of the EPBC Act.
However, the Full Court made a distinction between a government decision and deliberative steps leading up to the decision (which were held not to be an action), and the physical works or other activities or undertakings consequential on the decision (which were held to be an action, depending on the circumstances).
Whereas the Secretary’s decision and the steps leading up that decision were held not to be an ‘action’, the Full Court held that the physical works and activities to implement the Secretary’s conditions of consent and the carrying out of works in and around the tracks to facilitate recreational vehicles driving on the tracks, would comprise an ‘action’ or ‘actions’ for the purposes of the EPBC Act (being a coherent ‘project’ or ‘undertaking’ or ‘activity or series of activities’).
This blog was written with the assistance of Joshua Same and Greg Badcock.