FEDERAL COURT OF AUSTRALIA
Koowarta v State of Queensland [2014] FCA 627
| IN THE FEDERAL COURT OF AUSTRALIA | |
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT DECLARES THAT:
1. The approval of the Archer Basin Wild River Declaration 2009 (Qld), the Lockhart Basin Wild River Declaration 2009 (Qld) and the Stewart Basin Wild River Declaration 2009 (Qld) by the Governor-in-Council on 2 April 2009, the subject of the gazettal notice of 3 April 2009, is invalid and of no effect.
THE COURT ORDERS THAT:
2. The first respondent pay the applicants’ costs of and incidental to the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| QUEENSLAND DISTRICT REGISTRY | |
| GENERAL DIVISION | QUD 397 of 2010 |
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
| BETWEEN: | MARTHA KOOWARTA, DOROTHY POOTCHEMUNKA, DAWN KOONDUMBIN AND SARAH WOLMBY ON THEIR OWN BEHALF AND ON BEHALF OF THE WIK PEOPLE First Applicant HORACE ROCKY, JOANNE OMEENYO, DOROTHY SHORT, GRACE WARRADOO, SAM ZARO AND PATRICK BUTCHER JUNIOR ON THEIR OWN BEHALF AND ON BEHALF OF THE UMPILA PEOPLE Second Applicant PETER PETER ON HIS OWN BEHALF AND ON BEHALF OF THE LAMA LAMA PEOPLE Third Applicant |
| AND: | STATE OF QUEENSLAND First Applicant MINISTER FOR THE ENVIRONMENT Second Applicant |
| JUDGE: | GREENWOOD J |
| DATE: | 17 JUNE 2014 |
| PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 These proceedings were commenced in the High Court and then remitted to the Federal Court of Australia. The proceedings, as framed, raised matters arising under laws of the Commonwealth Parliament, namely, the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth) (the “NT Act”), and thus the disposition of all matters in issue in the proceeding involves an exercise of federal jurisdiction, including the question of whether three declarations made under an Act of the State of Queensland are valid.
2 The applicants in the proceeding seek relief both on their own behalf and on behalf of, respectively, the Wik People, the Umpila People and Lama Lama People of Cape York Peninsula.
3 In these proceedings, the applicants seek a declaration that the Archer Basin Wild River Declaration 2009 (Qld) (the “Archer declaration”), the Lockhart Basin Wild River Declaration 2009 (Qld) (the “Lockhart declaration”) and the Stewart Basin Wild River Declaration 2009 (Qld) (the “Stewart declaration”) are invalid and of no effect. The three declarations are said to be invalid and of no effect for three reasons.
4 First, procedural errors are said to have occurred in the making of each declaration.
5 Second, each declaration is said to be so unreasonable as to constitute an invalid exercise of the power conferred under the Wild Rivers Act 2005 (Qld) (referred to in these reasons as either the “Act” or the “Wild Rivers Act”).
6 Third, each declaration is said not to be “reasonably proportionate” to the pursuit of the “enabling purpose” under the Act.
7 Apart from these three contentions, the Archer declaration is said to be invalid because it is inconsistent with the NT Act and, secondly, the declaration is said to include an area that was not the subject of a “declaration proposal” for the purposes of the Act.
The Wild Rivers Act 2005
8 Apart from ss 1 and 2 of the Act which commenced on 14 October 2005, the remaining provisions of the Act commenced on 2 December 2005. Section 3 of the Act describes the purpose of the Act in these terms:
3 Purpose of the Act
(1) The purpose of this Act is to preserve the natural values of rivers that have all, or almost all, of their natural values intact.
(2) The purpose is to be achieved mainly by establishing a framework that includes the declaration of wild river areas that will or may include the following -
(a) high preservation areas;
(b) preservation areas;
(c) floodplain management areas;
(d) subartesian management areas.
(3) Through the framework mentioned in subsection (2), this Act and other Acts achieve the purpose mentioned in subsection (1) by -
(a) providing for the regulation of particular activities and taking of natural resources in a wild river and its catchment to preserve the wild river’s natural values; and
(b) having a precautionary approach to minimise adverse effects on known natural values and reduce the possibility of adversely affecting poorly understood ecological functions; and
(c) treating a wild river and its catchment as a single entity, linking the condition of the river to the health of the catchment; and
(d) considering the effect of individual activities and taking of natural resources on a wild river’s natural values; and
(e) considering the cumulative effect of activities and taking of natural resources affecting a wild river area when further activities or taking are proposed; and
(f) if a wild river crosses a State border – working with the other State to encourage the preservation of the wild river’s natural values in the other State.
[emphasis added]
9 Section 7 of the Act provides that the Minister may declare a part of the State to be a wild river area. The Minister for the State of Queensland with portfolio responsibility for the administration of Act at the relevant time, as contemplated by s 7 of the Act, was the Honourable Mr Stephen Robertson.
10 Section 8 of the Act provides that if the Minister intends to declare a part of the State to be a wild river area, the Minister must publish a notice of the Minister’s intention to do so, described in s 8 as a “notice of intent”. The notice of intent must state the reasons for the proposed declaration, the name of the proposed wild river, the area proposed to be declared a wild river, the areas proposed to be declared the “high preservation area” and the “preservation area”, and identify where further information about the proposed declaration may be obtained. I will return to the definition attributed to a number of these terms by s 5 and the Schedule to the Act, later in these reasons.
11 Section 9 of the Act provides for a “moratorium period” to be established commencing on the date of publication of the s 8 notice of intent (or a date stated in the notice) and ending on the day the wild river declaration takes effect, or another date determined in accordance with s 9(1)(b) or s 9(2) of the Act. During the moratorium period, no application for the grant of a water entitlement or new works (as described in s 10(2)) under the Water Act 2000 (Qld) is to be decided and a moratorium operates in the proposed wild river area for the purposes of the Vegetation Management Act 1999 (Qld) and the Mineral Resources Act 1989 (Qld) as described in s 10(3) and s 10(4) of the Act.
12 Apart from the matters required to be recited in the s 8 notice of intent mentioned at [10] of these reasons, the notice must also contain a description of the moratorium that takes effect under s 10 of the Act, during the moratorium period.
13 As soon as practicable after publishing the notice of intent, the Minister must prepare a proposal called a declaration proposal for the proposed wild river area and publish a declaration proposal notice. The notice must recite the proposed wild river area to which the declaration proposal notice relates, identify where copies of the declaration proposal are available for inspection and purchase, state that written submissions may be made by any person or entity about the declaration proposal, and identify the day by which submissions must be made and the person to whom, and the place where, the submissions must be made: s 11.
14 Section 12 provides that the declaration proposal may include, but is not limited to, the information set out at s 12(1)(a) to (v). Section 12, relevantly, is in these terms:
12 Content of declaration proposal
(1) The declaration proposal may include, but is not limited to, the following information:
(a) a description of the proposed wild river and wild river area;
(b) the natural values of the proposed wild river that the proposed wild river declaration is intended to preserve (the relevant natural values);
(c) details of any special features of the proposed wild river area;
(d) the location of the proposed high preservation area and preservation area;
(e) the location of any proposed floodplain management area;
(f) the location of any proposed subartesian management area;
(g) details of the major tributaries of the proposed wild river;
(h) the location of any proposed nominated waterway in the wild river area;
(i) the location of any designated urban area;
(j) the way in which the moratorium has effect for the proposed wild river area;
(k) any carrying out of activities or taking of natural resources proposed to be prohibited or regulated in the proposed wild river area;
(l) the matters that must be considered in deciding whether to allow the carrying out of an activity or the taking of a natural resource in the proposed wild river area;
...
(q) a process for granting, reserving or otherwise dealing with unallocated water in the proposed wild river area;
(r) any plant species that has a high risk of having an adverse impact on the relevant natural values;
(s) any plant species that has a moderate risk of having an adverse impact on the relevant natural values;
(t) details of the community consultation that will take place on the declaration proposal;
(u) where a detailed map of the proposed wild river area, showing the proposed wild river and the information mentioned in paragraphs (c) to (g), may be obtained; and
(v) where further information about the proposed declaration may be obtained.
15 Section 13 of the Act identifies the matters the Minister must consider in preparing a wild river declaration.
16 Section 13 is in these terms:
13 Matters Minister must consider
(1) In preparing a wild river declaration, the matters the Minister must consider include -
(a) the results of community consultation on the declaration proposal; and
(b) all properly made submissions about the declaration proposal; and
(c) any water resource plan or resource operations plan that applies to all or part of the proposed wild river area.
(2) To the extent a water resource plan or a resource operations plan applies to all or part of the proposed wild river area, the wild river declaration must not be inconsistent with the water resource plan or the resource operations plan other than in relation to the matters mentioned in section 14(1)(k) to (p) and (3).
(3) Subsection (1) does not limit the matters the Minister may consider.
[emphasis added]
17 Section 14 sets out the information that must be included in a wild river declaration. Nineteen topics are identified in that section. The section, relevantly, is in these terms:
14 Content of wild river declaration
(1) A wild river declaration must include, but is not limited to, the following information -
(a) a description of the wild river and wild river area;
(b) the natural values of the wild river that the declaration is intended to preserve (the relevant natural values);
(c) details of any special features of the area;
(d) the location of the high preservation area and preservation area;
(e) the location of any floodplain management area;
(f) the location of any subartesian management area;
(g) the location of any designated urban area;
(h) the major tributaries of the wild river;
(i) the location of any nominated waterway;
(j) any carrying out of activities or taking of natural resources that are prohibited or regulated in the wild river area under the declaration;
(k) the matters that must be considered in deciding whether to allow the carrying out of an activity or the taking of a natural resource in the wild river area;
…
(o) information about water available for future consumptive purposes and the priorities for use or reservation of the water;
(p) any threshold limits for carrying out activities or taking natural resources in the wild river area;
(q) any plant species that has a high risk of having an adverse impact on the relevant natural values;
(r) any plant species that has a moderate risk of having an adverse impact on the relevant natural values;
(s) where a detailed map of the wild river area, showing the wild river and the areas mentioned in paragraphs (c) to (i), may be obtained.
18 Subsections (2), (3) and (4) of s 14 set out matters that may be stated or included in a wild river declaration.
19 Section 41(1) of the Act provides that the following parts of a wild river area are included in the “high preservation area”: the wild river; the major tributaries of the wild river; any special features in the wild river area; and the area, stated in a wild river declaration for the wild river area, of up to one kilometre either side of the wild river, its major tributaries and any special features. Section 41(2) provides that the remainder of the wild river area is the “preservation area”. A floodplain management area, a subartesian management area or a designated urban area may be “over all or part of the high preservation area or the preservation area”: s 41(3).
20 Section 15 of the Act provides that after considering the matters mentioned in s 13 of the Act (that is, the matters the Minister must consider in preparing a wild river declaration) and any other matters the Minister considers appropriate, the Minister may: (a) declare the area to be a wild river area; or (b) decide not to proceed with declaration of the wild river area.
21 Section 16 provides that the Governor-in-Council may, by gazette notice, approve the declaration of a wild river area. The declaration has effect when approved by the Governor-in-Council and the approval is notified in the gazette. The Minister must table a copy of the declaration in the Legislative Assembly within 14 sitting days after the declaration is approved. Section 17 sets out the effect of declaration of a wild river area in relation to identified activities which were being carried out or were authorised immediately before the declaration took effect.
22 Section 44(1) of the Act provides (apart from matters presently not relevant) that the prohibition upon, and regulation of, carrying out activities and taking natural resources, in a wild river area, is dealt with by other legislation (“other Acts”) that prohibits or regulates the relevant activity or taking. However, s 44(2) provides that a wild river declaration, in applying for the purposes of any legislation that prohibits or regulates activities contemplated by s 44(1), “can not have the direct or indirect effect under [such legislation] of limiting a person’s right to the exercise or enjoyment of native title”.
23 Section 49 provides that the Minister may delegate the Minister’s powers under the Act to “an appropriately qualified public service officer or employee”.
24 The definition of relevant terms is set out in the schedule to the Act: s 5.
25 A declaration proposal and a declaration proposal notice are those things described in s 11 of the Act: see [13] of these reasons. A high preservation area means that part of a wild river area described as the high preservation area in the wild river declaration for the area: see also s 41 and [19] of these reasons. Wild river means a river described as a wild river in a wild river declaration. Wild river area means an area declared under Pt 2 of the Act as a wild river area (particularly having regard to ss 7 to 16 of Pt 2) and a wild river declaration means a declaration approved under Pt 2 (s 16 of the Act) or (not relevant for present purposes) a declaration which, by operation of s 54 of the Act, is taken to be a wild river declaration. Sections 7 to 18 of the Act fall within Div 1 of Pt 2. That Division addresses the topic of “declaring wild river areas”.
The evidence of the Honourable Stephen Robertson
26 Before examining the evidence of Mr Robertson, these contextual matters should be noted.
27 The first respondent is the State of Queensland.
28 It is common ground between the parties that the second respondent is the Minister responsible for the administration of the Wild Rivers Act under the relevant Administrative Arrangements Order, namely, the Minister for Environment and Heritage Protection (described in the proceeding as the “Minister for the Environment”), and that the second respondent is the successor in office to Mr Robertson who was the immediate successor in office to the Honourable Craig Wallace. Mr Wallace was the former Minister for Natural Resources and Water. The relevant ministerial actors in relation to the matters presently in issue were Mr Robertson in the period between Thursday, 26 March 2009 to and including Friday, 3 April 2009, and before that period, Mr Wallace (who I will describe in these reasons as “former Minister Wallace”).
29 By para 3 of his affidavit affirmed on 9 August 2011, Mr Robertson says that he was at the relevant time the Minister for Natural Resources, Mines and Energy and Minister for Trade. As the relevant portfolio Minister with responsibility for the administration of the Wild Rivers Act, Mr Robertson had ministerial responsibility concerning the making (or not) of any wild river declaration under the Act including any procedural steps to be taken by the Minister along the path to such a declaration and, relevantly for present purposes, the Archer declaration, the Lockhart declaration and the Stewart declaration.
30 It is also common ground on the pleadings that on or about 23 July 2008, former Minister Wallace published a notice of intent under s 8(1) of the Act and published a declaration proposal notice under s 11(1)(b) of the Act, and prepared a declaration proposal under s 11(1)(a) of the Act, for each of the proposed Archer Basin Wild River Area, the proposed Lockhart Basin Wild River Area and the proposed Stewart Basin Wild River Area.
31 It is also common ground that neither former Minister Wallace nor Mr Robertson delegated the discretionary power to make a wild river declaration conferred by s 15 of the Act, to another person whether as contemplated by s 49 of the Act or otherwise.
32 As earlier mentioned, Mr Robertson affirmed an affidavit in the proceedings on 9 August 2011.
33 In that affidavit he says that on 1 April 2009 he was the Queensland Government Minister for Natural Resources, Mines and Energy and Minister for Trade. Mr Robertson says that he assumed that portfolio role when sworn into office on 26 March 2009. Prior to assuming that role, Mr Robertson had served in a range of ministerial portfolios in the Queensland Government. They were these: Minister for Health from 28 July 2005 to 26 March 2009; Minister for Natural Resources and Mines from 25 August 2004 to 28 July 2005; Minister for Natural Resources, Mines and Energy from 12 February 2004 to 25 August 2004; and Minister for Emergency Services from 16 December 1999 to 12 February 2004. Thus, Mr Robertson had served as a Minister in the Executive Government of Queensland for a period in excess of nine years before assuming on 26 March 2009 the ministerial responsibilities earlier described, including responsibility for the administration of the Wild Rivers Act.
34 At para 5 of his affidavit, Mr Robertson says that on Wednesday, 1 April 2009, he received a “Ministerial Briefing Note” regarding the proposal to make wild river declarations for the Archer, Stewart and Lockhart basins. Mr Robertson says at para 6 that the Ministerial Briefing Note was prepared by officers of the Department of Environment and Resource Management (the “Department”).
35 At para 7, Mr Robertson annexes as Annexure “SR1” to his affidavit, a copy of the Ministerial Briefing Note and attachments to that Ministerial Briefing Note described as Attachments A, B, C and D. The Ministerial Briefing Note bears the Reference Number “CTS 02637/09”. Attachments A, B, C and D are described in the Ministerial Briefing Note in these terms. Attachment A is a “discussion paper which summarises the results of the consultation process and changes to the declarations as a result of consultations and submissions”. Attachment B is a “table of issues raised during the consultation process”. Attachment C is a “media release … for the Minister’s consideration”. Attachment D is a “question and answer sheet to assist with potential media enquiries”.
36 At para 8, Mr Robertson annexes as Annexure “SR2” to his affidavit, material described as a “copy of a bundle of documents comprising the material referred to as Attachment E in the Ministerial Briefing Note”. In the Ministerial Briefing Note, Attachment E is described as a “list of all submissions and the outcomes of the consultation meetings”. Annexure “SR2” however commences with an index or list which identifies 23 organisations that made submissions in response to any one of (or all of) the notices of the proposed Archer, Lockhart and Stewart declarations. A copy of each of the 23 submissions is attached as part of Annexure “SR2”. The Ministerial Briefing Note recites that the Minister received 3,602 submissions in response to the declaration proposals published on 23 July 2008 for the Archer, Lockhart and Stewart basins. The period for lodging submissions for all three basins closed on 21 November 2008. The Ministerial Briefing Note recites that of the 3,602 submissions received, 2,826 were considered to be “properly made”. However, as already mentioned, the 23 submissions at “SR2” are described by Mr Robertson as a copy of the bundle of documents comprising the material referred to as Attachment E to the Ministerial Briefing Note.
37 At para 9 of his affidavit, Mr Robertson says that on Wednesday, 1 April 2009, he “considered the Ministerial Briefing Note and the material accompanying the Ministerial Brief” [emphasis added]. The material accompanying the Ministerial Briefing Note was Attachments A, B, C, D and E.
38 At para 10, Mr Robertson says that on Wednesday, 1 April 2009, he “approved the Wild River declarations of the Archer basin, Stewart basin and Lockhart basin and approved the progression of the requisite documents to the Governor-in-Council for final approval and gazettal” [emphasis added]. Mr Robertson says at para 10 that he noted his approval “by circling the word ‘Approved’ in the top right hand corner of the Ministerial Briefing Note and by adding [his] signature and the date 1/4/9 in the space provided”.
39 At para 11, Mr Robertson annexes to his affidavit, marked Annexure “SR3”, a bundle of documents comprising: a copy of an Executive Council Minute No. 130 which bears the date 2 April 2009 and Mr Robertson’s initials at the end of the text; a copy of an Explanatory Memorandum prepared for consideration by the Governor-in-Council bearing Mr Robertson’s signature at the end of the memorandum, the date 31/3/9, the signature of Ms Debbie Best the Deputy Director-General of the Department (for John Bradley, Acting Director-General of the Department) with a date under Ms Best’s signature of 31.03.09; and a copy of a Wild River Declaration Notice (No. 01) 2009 in a form for publication in the Government Gazette which bears the Executive Council stamp, the number 130 at the foot of the document, and, as part of the Endnotes a date stamp of 2 April 2009 next to the Endnote “Made by the Governor in Council on”.
40 So far as his affidavit is concerned, Mr Robertson’s evidence is that he considered the Ministerial Briefing Note and the attachments to that note on Wednesday, 1 April 2009. Having done so, he approved, that day, declarations under the Act of the Archer, Stewart and Lockhart basins as wild river areas. He also approved, that day, the progression of the necessary documents to enable the Governor-in-Council to approve the declaration of each wild river area by gazettal notice for the purposes of s 16 of the Act (para 10 of his affidavit). Mr Robertson does not say or suggest, in his affidavit, that any other material was considered by him in any deliberative way or as an element of his considerations, on that day or otherwise, in declaring, under s 15(1)(a) of the Act, each area “to be a wild river area”. In particular, Mr Robertson does not say that in the course of his considerations or in approving the declarations, he had regard to any material put before former Minister Wallace in support of the former Minister’s consideration of whether a declaration ought be made under s 15 of the Act.
41 A number of things should be noted about the material Mr Robertson says, in his affidavit, that he considered on Wednesday, 1 April 2009 in “approving” the three declarations on that day.
42 First, the reference “CTS 02637/09” on the top left hand side of p 1 of the Ministerial Briefing Note is a computer tracking reference number uniquely attributed to a document as part of the Department’s system for tracking the passage of a particular document through the development and approval stages within the decision-making processes within the Department, particularly by senior public service officers responsible for putting a ministerial briefing note before the Minister.
43 Second, the Ministerial Briefing Note bears an attribution Footnote in these terms:
Briefing Officer: Scott Buchanan Team Leader (Wild Rivers) Telephone: 32251023 Date: 31/03/2009
44 Third, the two page Ministerial Briefing Note is signed by the Minister in a box for that purpose endorsed at the top of p 1 and dated by him “1/4/9” in the place provided for that purpose in the box. Immediately above his signature, the box identifies three decision-making options: “Approved/Not Approved/Noted Further information required”. Mr Robertson circled the “Approved” option that day.
45 Fourth, the Ministerial Briefing Note is a departmental document addressed to the Minister and described as being from the “General manager, Water Allocation and Planning”, through the “Acting Director-General” and the “Deputy Director, General Water and Catchment Division” of the Department. Ms Best, the Deputy Director-General of the Department signed the Ministerial Briefing Note in two places (and endorsed the date “1/04/09”) next to the title of each officer of the Department identified as those department officers “through” whom the Ministerial Briefing Note passed, notwithstanding that the briefing note is from the General Manager Water Allocation and Planning.
46 Fifth, the recommendation made to the Minister was to:
• Approve the declarations of the Archer basin, Stewart basin and Lockhart basin as wild river areas, and the progression of documents to the Governor-in-Council for final approval and gazettal, and
• Note the submissions and results of consultation on the three declaration proposals for the mentioned basin areas
[emphasis in original]
47 As to these recommendations, it should be noted that the relevant statutory step on the part of the Minister contemplated by s 15(1) of the Act is the exercise, after considering the s 13 “matters” and any other “matters” the Minister considers “appropriate”, of the discretion to either declare the relevant area to be a wild river area, or decide not to proceed with declaration of the wild river area. The statutory discretion to be exercised by the Minister is not one of approving anything. The Governor-in-Council may approve under s 16(1) the Minister’s declaration made under s 15(1)(a). Nevertheless, the Ministerial Briefing Note recommends that the Minister approve the declarations. The pro forma options in the box endorsed on the briefing note use the language of “Approved” and “Not Approved”. The briefing note however draws the Minister’s attention to s 15 of the Act and the discretionary power conferred on the Minister to “declare an area to be a wild river area” after considering three categories of information. In so drawing the Minister’s attention to s 15, the briefing note uses the language of subparas (a), (b) and (c) of s 13(1) of the Act.
48 It seems plain enough from the reference to s 15 in the Ministerial Briefing Note that the recommendation to “approve” the declarations and progress the documents to the Governor-in-Council for “final approval” was, properly understood, a recommendation to the Minister to declare the Archer basin, the Stewart basin and the Lockhart basin as wild river areas under s 15(1)(a) and progress the documents to the Governor-in-Council for approval under s 16(1). That position is consistent with the text of the proposed media release put to the Minister (Attachment C to the Ministerial Briefing Note signed on 1 April 2009) which talks about “declaration” of the basins as wild river areas covering a total area of 18,641 square kilometres.
49 Other documents are mentioned in the Ministerial Briefing Note in this way:
• The following documents have been provided to Executive Council Team to progress through to Governor-in-Council approval:
- Executive Council Minute (referring to “declarations marked “B” to “D)
- Explanatory Memorandum
- Executive Council Minute Additional Information Memo
- Gazette Notice, and
- Copy of this Ministerial Briefing Note
• The Executive Council Minute Additional Information Memo is provided for the Director-General, the Minister’s Advisor[s] and the Minister. It is not for submittal to the Governor-in-Council.
• The other documents will be provided to the Governor-in-Council for approval after receiving the Minister’s approval.
50 Neither the Ministerial Briefing Note nor the accompanying material incorporates any maps showing the boundaries of the wild river areas except to say that at least one of the submissions at “SR2” contains A4 size copies of some maps forming part of the consultation process (see the submission of McCullough Robertson Solicitors on behalf of Mr and Mrs Allen, the owners of the Archer River Roadhouse, Submission No. 1 on the list of 23 submissions).
51 Attachment A to the Ministerial Briefing Note is a discussion paper of issues arising out of community consultations concerning the three declaration proposals published on 23 July 2008 and proposed changes to the Archer and Stewart basin declarations. As to the Archer River Basin amendments, the discussion paper says this:
• Archer River Basin amendments
6. The Archer Basin Wild River Declaration Proposal identified three separate coastal wetland areas as special features; these were the Lower Archer Wetland Complex; the Love River Estuarine Complex and the Kirke River Estuarine Complex. Further analysis of these areas indicated strong hydrological connectivity, and therefore the special feature has been increased to recognise this connectivity.
7. Attack Creek which was proposed as a nominated waterway, is now recognised as a major tributary, and therefore is within the high preservation area.
52 The discussion paper notes that the Department received 3,602 submissions of which 2,577 “were facilitated through The Wilderness Society’s website” (para 17). The 2,577 submissions so facilitated are described by Mr Buchanan in his evidence as essentially pro forma submissions the terms of which were very similar and apparently drawn from the Wilderness Society’s website. If an assumption is made that consideration of the content of one such submission is in real terms consideration of the content of all 2,577 such submissions, the Minister’s consideration of one such submission would arguably satisfy the mandatory requirement of s 13(1)(b) that the Minister consider “all [of those] properly made submissions about the declaration proposal”. It will be necessary to return to this issue when considering Mr Buchanan’s evidence. However, two questions that arise are these. First, are all 2,577 submissions actually in the same terms? Second, does s 13(1)(b) require the Minister to consider all properly made submissions or can the Minister rely upon the Department’s assessment put to him, of the submissions?
53 As to the submissions, the Ministerial Briefing Note, consistent with the observations in Attachment A, suggests that 3,602 submissions were received. Of those, 2,826 were considered to be properly made. Of those, 2,577 are said to be in the same terms for all practical purposes and thus 2,576 of them might arguably be discounted once one such submission is considered, leaving 250 submissions to be considered for the purposes of s 13(1)(b) of the Act. Twenty-three of those submissions are attached to Mr Robertson’s affidavit as “SR2” (being the Attachment E material to the Ministerial Briefing Note) which means, according to the raw numbers in the briefing note, there must have been another 227 submissions to be considered.
54 This matter is further addressed in examining Mr Buchanan’s evidence. Mr Robertson described the role of Mr Buchanan as one of overseeing the Wild Rivers program, undertaking work on the ground, bringing together the science, the consultations, the legal side of things and addressing other factors for progressing proposed declarations up through the Department and ultimately to the Minister (T, p 22, lns 43-46). Mr Robertson accepted that Mr Buchanan, subject to the approval of those departmental officers in the decision-making structure above him, had administrative responsibility for carriage of proposed declarations, including the three declarations in issue, through the Department and up to the Minister (T, p 23, lns 15-22).
Mr Robertson’s oral evidence
55 It is now necessary to examine Mr Robertson’s oral evidence given in cross-examination upon his affidavit.
56 Mr Robertson gave evidence that on 9 August 2011 when he affirmed his affidavit, he examined it “carefully” (particularly the body of the affidavit from “pages 2 through to 4”) and took particular care (and “certainly spent some time”) “in making sure that it was accurate”, recognising that it was an “important document” in “Court proceedings” concerning, as he understood it, an action by the Cape York Land Council (“CYLC”), and others, seeking to “strike out Wild River declarations” (T, p 11, lns 4-5; lns 12-13; lns 15-17; lns 19-20; lns 26-27; T, p 10, lns 45-46; T, p 11, lns 1-2).
57 By 9 August 2011, Mr Robertson was the Minister for Energy and Water. Mr Robertson accepted that his affidavit was “a complete picture of the events in question” so far as he could recall those events and he did not wish to add to, delete from or correct any aspect of his affidavit (T, p 11, lns 35-42).
58 As to the annexures to his affidavit, Mr Robertson accepted that, although he could not specifically recall examining the annexures to make sure they accurately contained the documents in question, he nevertheless “went through each of those three annexures to make sure that they were complete” so far as he could recall (T, p 12, lns 5-12). Mr Robertson later gave evidence that he accepted that he exercised care in checking the annexures to make sure they were correct when affirming his affidavit as a Minister of the Crown, knowing his responsibilities (T, p 13, lns 14-19). Mr Robertson accepted that there was nothing in the annexures that ought be withdrawn for them to be an accurate reflection of the material (T, p 12, lns 14-15) and as to any additions so as to render the annexures accurate, Mr Robertson gave evidence that it had been pointed out to him on the first day of the hearing that the body of the CYLC submission (one of the 23 submissions at “SR2”) had not been included within the annexure. Mr Robertson gave evidence that although the CYLC submission was not included at “SR2” on 9 August 2011 he could recall that in 2009 he read the submission as he recalled that it raised questions of racial discrimination which were matters of importance to him (T, p 13, lns 28-35).
59 As to whether there was “anything else” that was before him when he “signed the declarations in 2009” but not included in his affidavit, Mr Robertson said that there were “a couple of thousand” pro forma Wildlife Preservation Society submissions that “were all the same” and “it was deemed unnecessary by both the department and my office, myself included, that we didn’t need to look at every one of them” [emphasis added] (T, p 14, lns 9-15).
60 Mr Robertson gave evidence that he could recall “a lot of formulaic submissions” although not the “actual number” because he could “well recall them being printed out and in my inbox at the time” (T, p 14, lns 44-46). Mr Robertson said that the submissions were printed out “at the time I came into that office” (T, p 15, ln 1). Mr Robertson said that when he circled “Approved” and signed the Ministerial Briefing Note on 1 April 2009, he had before him folders, in his filing trays, full of the pro forma submissions although he could not recall whether they were all there (T, p 15, lns 16-24). Mr Robertson thought that some of the pro forma submissions may have been sent directly to the Ministerial office and others may have been delivered multiple times daily by the Department (T, p 15, lns 34-37). Mr Robertson believed that these submissions came into his office progressively over the first week he was in the new portfolio (T, p 15, lns 28-29). Mr Robertson said that he could picture the folders of formulaic submissions from the Wildlife Preservation Society. They were “big”, “pink folders” (T, p 17, lns 17-18; lns 24-25; ln 27; T, p 18, lns 32-35) and they were “all in support of the declarations” (T, p 17, lns 29-31). He said that although there may have been different versions of these formulaic submissions, they “all fundamentally said the same thing” (T, p 17, lns 36-37).
61 Mr Robertson gave evidence that, to the best of his recollection, but for the big pink folders of pro forma submissions, and the material referred to in his affidavit, there was no other material before him when he made the declarations (T, p 18, lns 32-39) and he could not recall having “recourse to anything else” when he “signed the declarations on 1 April 2009” (T, p 19, lns 18-20). Mr Robertson gave evidence, when asked about whether any large maps were before him when he made the declarations, that there “could well have [been]” maps in his office relevant to the declarations but he could “not recall for certain” (T, p 19, lns 22-23; lns 40-45).
62 Mr Robertson could not recall being provided with any electronic disks as part of the declaration process.
63 Mr Robertson gave evidence that he first turned his mind to the issue of the three declarations in question in 2003 and 2004. That consideration occurred when discussions occurred about the systems to which the prospective Wild Rivers legislation might apply. Mr Robertson was Health Minister for four years from July 2005 until 26 March 2009 when he returned to what was a substantially similar portfolio to the earlier Ministry for Natural Resources.
64 The Queensland State Election was held on Saturday, 21 March 2009. Mr Robertson gave evidence that he was sworn into office as Minister of the new portfolio on Thursday, 26 March 2009 at Government House and virtually immediately after the swearing-in ceremony, he turned his mind to the three declarations in issue during the course of that afternoon. Mr Robertson said that that afternoon at the Ministerial Office he met with the Director-General of the Department, Mr John Bradley, and the Executive Team. Mr Robertson said that he was taken through the issues before the Department at that time and was given an overall briefing about the matters that needed urgent attention. It is common ground that the meeting occurred at 1.00pm. Mr Robertson said that one of the priorities mentioned that afternoon was the new Government’s election commitment to wild river declarations (T, p 20, lns 36-43; T, p 21, lns 35-37).
65 Mr Robertson thought there were two other such meetings and that he was provided with documents and draft briefing notes on issues relating to various parts of the portfolio (T, p 21, lns 38-41).
66 Mr Robertson said that arising out of the first meeting, a schedule of further meetings or other work to be undertaken “would have been” identified “to determine whether those Wild River declarations were to be approved and, if so, to progress those approvals to Governor-in-Council” (T, p 21, lns 45-47). Although Mr Robertson accepted that his diary did not record other meetings up to 3 April 2009 concerning wild river declarations, there may have been unscheduled meetings (T, p 22, lns 21-22).
67 Mr Robertson gave evidence that Mr Bradley told him, at the first meeting, of the need to give approval to the proposed declarations (T, p 23, lns 30-38). Mr Robertson gave evidence that he “already had history” in the subject matter of the declarations and he had retained an interest in the topic during his period as Health Minister. He said he knew that making “Wild River declarations” was an election commitment of the party and he understood from the Premier directly that progressing the declarations as a matter of priority was the will of the Premier. He said that he understood that that position had been communicated to his department by the Director-General of the Department of Premier and Cabinet (T, p 23, ln 47; T, p 24, lns 1-9). Mr Robertson gave evidence that the declarations could not be “concluded in time” before the Government entered “caretaker mode” leading up to the election.
68 Mr Robertson explained the steps taken in relation to the declarations from 26 March 2009 in this way. The submissions “were brought into my office”. It was “not unusual” for a “draft of a briefing note” to be provided “at [this] time”. That step “would have allowed for any additional comments or corrections or clarifications to be made through discussions between my office, myself and the department”. Then, the “final briefing note”, with or without revisions, would have been made available for signing (T, p 24, lns 35-40). In parallel, a Minute for the Governor-in-Council is prepared (T, p 24, lns 43-44).
69 Mr Robertson does not mention taking into consideration any draft briefing note in his affidavit. Mr Robertson’s best recollection is that it was “not unusual for drafts of briefing notes to be provided for the purposes of meeting with [departmental representatives]”. Mr Robertson recalls seeing Mr Scott Buchanan at a variety of meetings during the course of “that week” (Monday, 30 March 2009 to Friday, 3 April 2009) (T, p 25, lns 15-17; lns 27-29). Mr Robertson gave evidence that a draft briefing note “if it did exist”, was probably not included in his affidavit because “in our view, what mattered was the final briefing note that contained the signature [and the] approval”. Mr Robertson accepted that he could not recall a draft briefing note although it would not have been unusual for such a note to be attached to the pink folders (T, p 26, lns 10-11; lns 2-7). Mr Robertson was taken to Executive Council Minute No. 130 at p 379 (“SR3” to his affidavit) date stamped 2 April 2009. It is initialled by him (at p 379). The Executive Council Minute records a recommendation to Her Excellency The Governor that:
… the Wild River Declaration Notice (No. 01) 2009 marked “A” declaring the Archer Basin, Lockhart Basin and Stewart Basin wild river areas, in accordance with the declarations marked “B” to “D”, be approved. (MINUTE ENDS)
70 The recommendation was approved.
71 The recommendation was supported by a five page Explanatory Memorandum signed by the Deputy Director-General, Ms Best, and dated 31 March 2009, and signed by Mr Robertson and dated by him 31 March 2009. Mr Robertson could not recall the date he initialled the Executive Council Minute (at p 379) although he said that he would not have signed the Executive Council Minute unless he had given his “approval” (T, p 27, lns 31-32) for the “legislation [the declarations] or the legislative instrument in question” (T, p 27, ln 26).
72 In this context, Mr Robertson was asked whether “you may have made your decision before you signed the approval of the briefing note [on 1 April 2009]” (T, p 27, lns 19-20). Mr Robertson gave evidence that he signed the Ministerial Briefing Note on 1 April 2009 approving the recommendation but added that it could not be taken that he approved the recommendation on that date. He put it this way (at T, p 29, lns 41-46):
The reason that that be the case is that I was always aware that at some stage in the future I may be sitting in a witness box on oath, or having affirmed when I actually signed a document, that is why the document is signed on the day I had that document in front of me. As quite – it’s quite a separate issue as to when I gave approval to the Department.
[emphasis added]
73 The Court, in framing a question for Mr Robertson, observed that he had not mentioned in his affidavit any anterior decision (that is, prior to 1 April 2009) and that his affidavit affirmatively spoke of having received the Ministerial Briefing Note on 1 April 2009 and having considered that material on 1 April 2009 resulting in an approval on 1 April 2009. The Court asked Mr Robertson whether his best recollection was that the document signed on 1 April 2009 was confirmatory of something else (T, p 30, lns 6-14). Mr Robertson explained that he would not have signed the Executive Council document on 31 March 2009 unless he had granted “approval to the Department to prepare the document and submit it to me for signing” (T, p 30, lns 15-21). Mr Robertson accepted that he signed the Explanatory Memorandum some time on 31 March 2009 (located at pp 380-384 of “SR3”) and that some time on that day he decided to approve the three declarations. He accepted that by then he “had made a decision” and “that was it” and he then moved on to “other Ministerial business” (T, p 31, lns 22-36).
74 Although Mr Robertson could not confirm that a letter of 31 March 2009 signed by him and addressed to the Premier, seeking permission for the declarations to go to Executive Council, was sent at about 1.30pm on 31 March 2009 (as that was a matter within the knowledge of the public servants), he accepted that once he had signed the Explanatory Memorandum (and sent his letter to the Premier) on 31 March 2009, his “task was done in relation to the three declarations” (Day 2 (“D 2”), T, p 3, lns 13-15). Mr Robertson’s letter to the Premier and the documents enclosed with that letter are discussed later in these reasons.
75 In view of Mr Robertson’s evidence about making the decision on 31 March 2009 rather than 1 April 2009, Mr Robertson was asked to reflect on the material that he considered in reaching his decision on 31 March 2009 and in signing the documents that day (the Explanatory Memorandum and the letter to the Premier). Mr Robertson said that he considered the submissions (made in response to the notice and the declaration proposals published on 23 July 2008) minus the pro forma submissions, and a number of departmental documents comprising the “detail of the proposal that was released for public consultation”, a “second report going to the science behind the proposal”, that may or may not have been used for the purposes of public consultation, and (there may well have been) “a report detailing the results of the consultation process” (T, p 33, lns 15-27).
76 Although Mr Robertson was pressed about why there was no reference in his affidavit to any consideration of the detail of the declaration proposal released to the public, Mr Robertson gave evidence that he was “sure” he looked at that material (T, p 34, lns 1-2).
77 Mr Robertson also gave evidence that he “definitely [had] recourse” to a report on the science. Mr Robertson could not identify the document or where it might be found (T, p 34, lns 11-19). The document was not put in evidence by the State. Mr Robertson believed that the public consultation document, science report and a report about the consultation process were provided to him by the Department.
78 Mr Robertson gave evidence that the 23 non-pro forma submissions listed at p 29 of “SR2” were provided to him by the Department in a box. Mr Robertson accepted that, to the best of his recollection, these submissions were the only submissions that he considered before signing the particular documents on 31 March 2009 (T, p 36, lns 32-34).
79 Mr Robertson gave evidence that he looked at some of the pro forma submissions in the pink folders but “when it became clear they were just repetitions” he “took it no further” (T, p 36, lns 36-43).
80 As to the Ministerial Briefing Note at “SR1”, Mr Robertson thought it likely that he received a draft of that briefing note prior to 31 March 2009 and noted that the document bears a date of 31 March 2009 at the foot of pp 1 and 2. As to the attachments, Mr Robertson thought Attachment A to the briefing note may have come to him prior to 1 April 2009 although he could not recall (T, p 38, lns 19-22). Mr Robertson accepted that if the evidence of the public service officers is that Attachment A was sent to the Ministerial Office at some time after 4.30pm on 1 April 2009, that evidence would reflect the correct position (T, p 38, lns 24-25). Mr Robertson believed that he considered Attachment A but he could not recall when (T, p 38, lns 27-29). Mr Robertson could not recall when he considered Attachment B (T, p 38, lns 34-37).
81 Mr Robertson believed that although he had said in his affidavit that he considered the briefing note and the accompanying material on 1 April 2009 and approved and signed the document that day (paras 9 and 10) he “could have well seen it before that date” and no assumption could be made that the material was not before him prior to 1 April 2009 (T, p 39, lns 8-9; lns 34-35). That followed for Mr Robertson because it was “not uncommon for drafts of briefing notes, including attachments, to be provided for discussion purposes prior to their actual formal signing” (T, p 39, lns 44-46).
82 At T, p 40, lns 36-37 and T, p 41, lns 1-4, Mr Robertson reaffirmed his earlier evidence that by 31 March 2009 he had made his decision to approve the making of the declarations.
83 Mr Robertson accepted that an email (Ex 3) from Mr Buchanan addressed to “Correspondence WAP” and copied to Mr Buchanan’s superior, Mr Tom Crothers, a senior departmental manager, on 31 March 2009 at 3.35pm attaching a draft Ministerial Briefing Note (with no CTS number allocated to it) including a discussion paper summarising submissions and responses to the draft declaration proposals (Attachment A), a summary list of submissions and submitters (Attachment B), a media release (Attachment C) and a question and answer sheet (Attachment D), for approval by Mr Crothers, appeared to suggest the Department was still then assembling a briefing note for the Minister (T, p 42, lns 20-21; T, p 41, lns 31-47; and T, p 42, lns 1-11). Mr Buchanan, by his email, asks Mr Crothers to approve the briefing note and attachments “so that Gayle [Webster] can progress through MECs to Correspondence WCD” [emphasis added]. I will return to these two terms later in these reasons.
84 Mr Robertson also accepted that a further email (Ex 4) from Mr Buchanan to “Correspondence WAP” dated 1 April 2009 at 12.16pm requesting the departmental addressee (Gayle) to ensure the Attachments A, B, C and D “are attached to the MECS cts”, appeared to suggest the Department was continuing to assemble briefing papers for him (T, p 43, lns 39-41).
85 Mr Robertson also accepted that a further email (Ex 5) from Mr Buchanan to a departmental addressee (Gayle Webster) at 12.27pm on 1 April 2009 making changes to the media release (Attachment C) appeared to suggest that documentation was still being assembled by departmental officers for his consideration (T, p 44, lns 5-19).
86 On the second day of the hearing, Mr Robertson gave evidence that the documents that were before him prior to making the decision on 31 March 2009 were those documents described in para 3 of the Ministerial Briefing Note under the heading “Background” at p 5 of the affidavit. Mr Robertson described those documents as the “public consultation document”, the “initial proposal” released to the public and any applicable “water resource plan”, although Mr Robertson observed that no such plan existed for Cape York (D 2, T, p 3, lns 26-30; ln 43). There was no “science report” as thought on Day 1 of giving evidence (D 2, T, p 3, ln 21). Mr Robertson accepted that para 3 to which he had referred, set out the s 15 matters required to be considered by the Minister and not the material which was before him but said that he “recalled documents of that type being before me” [emphasis added] (D 2, T, p 3, lns 45-48).
87 Mr Robertson gave evidence that he had no record of such documents (and rather thought the Department would produce that material) but recalled such material because it was standard practice to prepare documents of that type for Wild River declarations (T, p 4, lns 7-10).
88 Mr Robertson described such material as “foundational” documents (D 2, T, p 4, ln 32).
89 As to draft instruments of declaration, Mr Robertson could not recall whether any draft declarations existed at all (D 2, T, p 5, lns 40-45).
90 Mr Robertson thought it “highly likely” a draft briefing note such as the document attached to Mr Buchanan’s email of 31 March 2009 at 3.35pm was before him on 31 March 2009 (D 2, T, p 8, lns 20-22).
91 As to the results of community consultation, Mr Robertson understood that that was one of the documents he was “required” to consider and so “it would have been before me” (D 2, T, p 8, lns 41-42).
92 As to the boundaries of the declared wild river areas, Mr Robertson was asked about the material before him on 31 March 2009 when making his decision that indicated the boundaries for each wild river area. Mr Robertson believed that the publicly disclosed information contained maps showing, particularly, the contentious high preservation zone within the declared area. Mr Robertson gave evidence that the documentation before him “would have included the maps” released for public consultation by the Department (D 2, T, p 9, lns 27-30; lns 44-45). Mr Robertson accepted that the maps he relied upon when making his decision on 31 March 2009 were not included in the material referred to in his affidavit as material he considered and acted upon although he asserted that the relevant maps were “before me for the purposes of consideration leading to the approval of these wild river declarations” (D 2, T, p 10, lns 10-12; lns 14-15).
93 Mr Robertson could not recall if any “digital data” concerning boundaries was before him when making the decision on 31 March 2009 (D 2, T, p 10, lns 34-37).
94 Mr Robertson was emphatically of the view that it was not the role of the Minister to determine the “fine detail” or “fine grain scale” (D 2, T, p 11, ln 16) of the boundaries as that was a role for officers in the Department trained and qualified in mapping, to finalise (D 2, T, p 11, lns 6-9). The Minister had to act at “landscape scale when making these declarations” (D 2, T, p 11, lns 3-4). Mr Robertson put it this way. Ministers are provided with maps at a scale that allows the declarations to occur, and how the maps might be finalised, using on the ground evidence and conducting shareholder consultations, are a matter for the Department (D 2, T, p 11, lns 28-31). Government officers are operational people, not the Minister (D 2, T, p 11, lns 32-33). Mr Robertson gave evidence that the maps forming part of the documents released for public consultation were before him when the three declarations were made (D 2, T p 11, lns 36-43), and the advice of the Department was that drawing a boundary for each declared area at “this scale” was appropriate (D 2, T, p 12, lns 29-32) in attempting to achieve “good conservation outcomes and environmental protection” (D 2, T, p 12, ln 32).
95 As to the point of distinction between the Archer declaration on the one hand and the Lockhart and Stewart whole of basin declarations on the other, Mr Robertson could not recall the reasons for the difference in treatment concerning the Archer basin (D 2, T, p 13, lns 36-46). Mr Robertson was not able to identify any reason that might have caused the declaration concerning the Archer basin to incorporate an area that was not identified in the declaration proposal released for public comment except to say that he would not be surprised to find that the final definition of the area to be declared had changed as a result of public consultations on the declaration proposal (D 2, T, p 14, lns 6-32; T, p 15, lns 16-28).
96 As to the basis on which Mr Robertson was satisfied that making the three declarations served the statutory purpose of preserving the natural values of rivers that have all, or almost all, of their natural values intact, Mr Robertson gave evidence that he relied upon departmental advice and his own “pretty good understanding” of the values in question due to his numerous visits to Cape York. The departmental material available to him, although not mentioned in his affidavit included, he said, “scientific material that related to that issue of the preservation of material values” (D 2, T, p 16, lns 36-37; lns 42-43; lns 45-46; T, p 17, lns 1-2).
97 Mr Robertson did not accept the proposition put to him that on 31 March 2009 when he made his decision, he was acting upon an understanding that his role was simply to note the declarations and progress the matter to Executive Council (D 2, T, p 17, lns 40-43). Mr Robertson accepted that at about the time that he made the three declarations, the departmental representatives realised that former Minister Wallace had not made the declarations and Mr Robertson would now need to make them (D 2, T, p 17, lns 44-47). In response to the proposition put to him that that was the purpose of the Department putting the material put to him on 1 April 2009, Mr Robertson gave evidence that in coming into office on 26 March 2009, “the material would have been put to me, as part of the briefings for an incoming Minister, what was before the department, what required priority in terms of my attention, and from there, we would have progressed discussions, briefings, meetings on the issue of the wild river declarations” (D 2, T, p 18, lns 1-6).
98 As to the development of the documents, by the Department, ultimately put to Mr Robertson, Mr Robertson accepted that the email from the Deputy Director-General, Water and Catchment Division, Ms Best, at 3.13pm on Monday, 30 March 2009 (requesting Mr Crothers and Mr Buchanan to prepare a Ministerial briefing “re wild rivers decs – the three for Thursday [2 April 2009 when Executive Council would meet]”, together with an overview, draft media release and “Questions and answers to assist [the Minister and his staff]”), did not make any reference to the Minister “approving”, that is, making, the declarations. Mr Robertson did not accept, however, that the Department was under the impression, at the time of Ms Best’s email, that all the Minister needed to do was simply “note” existing declarations (D 2, T p 19, ln 17, lns 22-25).
99 At 4.59pm on Monday, 30 March 2009, Mr Buchanan responded to Ms Best’s email, by email, copied to Mr Crothers, in these terms:
Subject: RE: Min Brief for WR CDecs Thursday
Debbie,
Can do. What is current state of play in terms of approval, do we need to get an approval by the Minister, as it appears the previous Minister did not sign CTS 01188/09, to approve the declarations proceeding to GIC.
If this is the case, I propose that I will renew this CTS for the Minister’s information and approval. Is that okay?
100 On Tuesday, 31 March 2009 at 3.35pm, Mr Buchanan sent his email (earlier mentioned) to “Correspondence WAP” and Mr Crothers with the attachments mentioned at [83] of these reasons requesting Mr Crothers to approve each document described as Attachments A, B, C and D. The draft briefing note prepared by Mr Buchanan recommends that Mr Robertson:
Note that the wild river area Declarations for the Archer, Stewart and Lockhart River Basins follow a period of consultation and consideration of community submissions.
101 The draft Ministerial Briefing Note records that:
The previous Minister approved for the declarations to be progressed to Governor in Council for approval and gazettal.
102 Mr Robertson gave evidence that “the best people to answer these questions [concerning an understanding by departmental officers of what was required of the Minister at the dates of various departmental letters or emails] are either the officers concerned or the Director-General at the time”. Mr Robertson, however, described the proposition put to him that, at the time of Ms Best’s email the Department did not appreciate that Mr Robertson would have to approve the declarations, as “a ridiculous suggestion” (D 2, T, p 20, lns 32-40). Mr Robertson accepted that the draft briefing note attached to Mr Buchanan’s email at 3.35pm on 31 March 2009 seeking Mr Crothers’s approval, merely recommended that the Minister note the three declarations (T, p 22, lns 30-33).
103 In answer to the proposition put to him that the recommendation in the draft briefing note being developed within the Department (and the passage from the briefing note quoted at [100] of these reasons) suggested, in effect, that when he made his decision on 31 March 2009 the departmental officers thought that all Mr Robertson needed to do was note rather than make the declarations (D 2, T, p 22, lns 40-44), Mr Robertson said he accepted that that would be so but for the express reference in the briefing note to the Premier agreeing to “the Minister’s proposal to seek approval for the three Declarations by the end of February 2009” [emphasis added] (D 2, T p 22, lns 43-47).
104 The Premier’s agreement to that proposal, however, plainly concerned the earlier process engaging Minister Wallace which fell away once the Government entered caretaker mode leading up to the election. The draft media release (Attachment C to Mr Buchanan’s email of 31 March 2009 at 3.35pm) recites Mr Robertson as saying:
The previous Minister personally took into consideration each submission including various concerns raised during the consultation process.
105 Nevertheless, Mr Robertson gave this evidence (at D 2, T, p 23, lns 19-24), re-asserting his earlier evidence:
I was always aware from the afternoon of 26 March that as a matter of priority I would be required to consider those declarations and if satisfied I would have to approve them. That was the understanding of the department. That was my understanding. The understanding of my staff and the understanding of the Premier’s Office who were keen to see these matters resolved after my appropriate consideration.
106 Mr Robertson gave evidence that that understanding was given to him by either Mr Bradley, the Director-General, or Ms Best, the Deputy Director-General, or both and possibly Mr Buchanan (D 2, T, p 25, ln 8; ln 16; ln 20).
107 As to other communications between officers of the Department concerning the three declarations, Mr Robertson gave evidence that he could not “comment” on those exchanges and “knew nothing about [them]” (D 2, T, p 24, lns 24-25; ln 40).
108 The following exchange reflects some aspects of Mr Robertson’s evidence concerning the making of the declarations (D 2, T, p 26, lns 3-47; T, p 27, lns 1-46):
Question: … I’m suggesting the department was labouring under a misapprehension that the previous Minister had approved [the three declarations] and it was only on 1 April that this briefing note [at pp 5 and 6, “SR1”], is compiled and provided to you where approval is being sought.
Answer: No, I understand that, … however, it still required the matter to go before Governor-in-Council and therefore be signed by me as the new Minister and before I attached my signature to that I would have given full consideration to the matters. So, if your suggestion, … is that the department did not provide me with the information required for me to properly approve the matter then you are wrong because at the very least it required my signature to advance that Governor-in-Council minute, and that would have required me at the very least to give consideration to those matters and as we provided evidence previously. It is my recollection that from the afternoon of the 26th when I assumed the responsibility as Minister for Natural Resources this was actively in play as a matter that I needed to determine.
Question: … you’ve already given evidence that on the 31st your decision was made complete – 31 March 2009. That’s your evidence?
Answers: Yes.
Question: And you adhere to that evidence?
Answer: Yes.
Question: My suggestion is this - that it was only 1 April, the day after, that you received the documents contained in your affidavit?
Answer: Except as we previously discussed there were drafts as provided as we see in exhibit 3 – there were drafts in existence that would have been used for discussions over the course of those number of days leading up to the 1st.
Question: Mr Robertson, you knew that this case was about your decision-making process relating to these three rivers – yes, three declarations, didn’t you?
Answer: Yes.
Question: Therefore, you would have included in your affidavit in 2011 material relating to what you had before you on 31 March if what you said was correct?
Answer: No, as we’ve now been through on numerous occasions I was clearly under the misapprehension that that material would have formed part of the material submitted by departmental officers …
Question: What I’m suggesting to you is that on 31 March you did not have this material that you had before you on 1 April, before you on 31 March?
Answer: Well, you can’t make that assumption. That final briefing note is dated the 31st.
Question: But you signed it on the 1st, you said that?
Answer: Yes.
Question: And there’s a paper trail indicating it got to your office at 4.56 on the 1st?
Answer: Yes.
Question: Right. So, clearly some hours, many hours from when you had made your decision and finalised your decision in relation to these three declarations. You agree with that?
Answer: Yes.
Question: Right?
Answer: But I would also have had noting the existence of this one draft of a briefing note and the attachments to it information that I would have been able to consider in the lead up to that time.
Question: Which briefing note are you referring to?
Answer: The exhibit 3. … But I provided evidence before – you know, for the purposes of meetings draft briefing notes would be provided for the earliest consideration of matters leading up to a final version once full consideration had been given particularly when it came to approvals.
Question: You don’t recall that occurring, do you?
Answer: Look, it was standard practice … It was standard practice. There was nothing extraordinary about that. It was common practice for that to occur and as I’ve said my recollection is that from – the afternoon of the 26th these issues were in play and before me for consideration.
Question: Mr Robertson, I put it to you that you’re confused at least?
Answer: No I don’t think so.
Question: That what occurred was you made your decision as you’ve indicated on 31 March and that was your final decision. You agree with that?
Answer: Yes.
Question: But I also put to you that it wasn’t until 1 April that you had that material as outlined in that briefing note that you approved on 1 April?
Answer: I disagree with that.
Question: But you can’t take us to any document that suggests otherwise?
Answer: Well, we have here a draft briefing note and as I’ve just indicated to you it was common practice for draft briefing notes to be prepared or made available to me and my staff for the purposes of meetings with departmental officers, and the existence of that draft strongly suggests that that material would have been before me or at least in my office.
Question: Really?
Answer: Yes.
Question: Well, have a look at exhibit 3 [Mr Buchanan’s email of 31 March 2009 at 3.35pm]?
Answer: Yes.
Question: You see the email 31 March at 3.35 refers to attachments A, B, C and D?
Answer: Yes.
Question: Yet no reference to attachment E?
Answer: What’s attachment E?
Question: The submissions?
Answer: Yes.
Question: Are you saying that you could have been provided with a draft briefing note that had attachments A, B, C and D but not E?
Answer: No, as I previously provided evidence I recall the submissions being provided in a box as the part of the initial bundle of documents provided to me as an incoming Minister.
Question: Might it be the case that that box remained an unopened box until at least 1 April?
Answer: No, because these matters were under active consideration from the afternoon of the 26th.
Question: When did you open that box?
Answer: I can’t recall.
Question: So how are you emphatic that it wasn’t on 1 April when you signed it off …?
Answer: Because commencing from the afternoon of the 26th were the briefings on the range of issues that were part of my portfolio and as a priority the Premier had requested my earliest consideration of those matters.
[emphasis added]
The oral evidence of Mr Scott Buchanan
109 It is now necessary to consider the evidence of Mr Scott Buchanan concerning the departmental exchanges and the passage of documents to the Minister.
110 Mr Buchanan in April 2009 was the “Team Leader” of the unit responsible for the Wild Rivers program. Mr Buchanan oversaw the preparation of the “Wild Rivers documents” including draft declarations. He was responsible for the public consultation process and led the team that undertook the “actual public consultations” and was, in effect, the “supervisor” of that process. A part of Mr Buchanan’s duties involved advising senior departmental managers about the wild rivers process and when a decision was to be made about a “serious matter”, Mr Buchanan would prepare the briefing material and “send it up the line”. His role included briefing the Director-General and Deputies Director-General of the Department.
111 Mr Buchanan was also involved in preparing briefing notes to the Minister and was sometimes involved in face-to-face meetings with the Minister. Such briefing notes prepared by Mr Buchanan would, in accordance with normal practice, be approved by senior managers before they were put to the Minister.
112 Mr Buchanan gave evidence that he received an email from Ms Best on 30 March 2009 at 3.13pm requesting him to prepare a brief for the Minister about wild river declarations which he understood to be the Archer, Stewart and Lockhart declarations.
113 In response, that day, at 4.59pm, Mr Buchanan sent the email quoted at [99] of these reasons. Mr Buchanan asked the Deputy Director-General “what the current state of play was, in terms of approval” (D 2, T, p 39, lns 27-28) and in the email Mr Buchanan asked the Deputy Director-General whether the Department needed to “get an approval by the Minister”. Mr Buchanan notes in his email that former Minister Wallace had not signed a document (described as CTS 01188/09) to approve the declarations. Mr Buchanan said that his “recollection” was that “all the material had been before the previous Minister” (D 2, T, p 39, lns 33-34). Mr Buchanan gave evidence that his understanding was that former Minister Wallace had approved the three declarations. He said that he held that understanding because he and his team had been asked to “provide the executive correspondence material for Governor-in-Council”. Mr Buchanan said that he was confused about the approval issue because the briefing note to former Minster Wallace had not been signed, and he had assumed that it had been signed.
114 Mr Buchanan said that, by his email of 4.59pm on 30 March 2009, he was trying to make the Deputy Director-General aware that “the full approval process was required” (D 2, T, p 39, lns 43-44).
115 Mr Buchanan gave evidence that on either Friday, 27 March 2009 or Monday, 30 March 2009, he became aware that former Minister Wallace had not approved (made) the declarations (D 2, T, p 40, ln 25). Mr Buchanan in his email of 30 March 2009 proposed to the Deputy Director-General that if an approval from Minister Robertson was necessary, he would “prepare new material” (D 2, T, p 40, lns 30-31) and, in his email, he described this step as renewing “[the earlier] CTS [01188/09] for the Minister’s information and approval”. This would involve “taking the old CTS and providing that with any amendments or edits that were necessary” (D 2, T, p 40, lns 34-35), that is, “updating” the document for the new Minister (D 2, T, p 40, ln 39).
116 Mr Buchanan gave evidence that when he sent his email to Ms Best at 4.59pm on 30 March 2009 he was “quite clear in my head at this stage that approval would be required” (D 2, T, p 41, lns 3-4), although Mr Buchanan accepted that his use of the phrase “if this be the case” in his email was consistent with the idea that “it may not be the case” that approval would be required (D 2, T, p 41, lns 6-8).
117 At 4.57pm on Monday, 30 March 2009, Mr Adam Reece, Account Manager, Communications, Publications and Library Services sent an email to Mr Buchanan and others providing particular documents and asked: “Please check them through, and make sure the maps are correct for each”. Mr Reece added: “Also, Scott: Kerry Waters has asked that I make sure the Minister’s office has been made aware of the fact that they are proceeding to GIC”. At 5.26pm on Monday, 30 March 2009, Mr Buchanan sent an email (Ex 8) to two addressees advising that the “three declaration proposals are to be found at the following FTP drive, please let me know if you have any problems accessing these”. Mr Buchanan is here talking about access to the declaration proposals published in 2008 (D 2, T, p 41, lns 17-25).
118 On 31 March 2009 at 3.35pm, Mr Buchanan sent his email (Ex 3) in response to Ms Best’s request of 30 March 2009 at 3.13pm. Mr Buchanan’s email attaches a proposed Ministerial Briefing Note and also the four Attachments A, B, C and D mentioned at [83] of these reasons. It is addressed to “Correspondence WAP” and copied to Mr Crothers.
119 Mr Crothers’s role was that of General Manager, Water Allocation and Planning and he was Mr Buchanan’s direct superior. Mr Crothers reported to Ms Best, the Deputy Director-General of the Department who reported to Mr Bradley, the Director-General. Mr Crothers, Ms Best and Mr Bradley would all be required to approve a Ministerial Briefing Note prepared by Mr Buchanan before it was sent to the Minister. Mr Buchanan’s email reflects the draft of such a briefing note that he was sending to his direct manager, Mr Crothers, for approval (D 2, T, p 42, lns 4-24).
120 The reference “Correspondence WAP” has the effect of addressing the email (apart from sending it to Mr Crothers directly) to “the person who administers the correspondence items for Water Allocations and Planning” and “Correspondence WAP” stands for the section Water Allocation and Planning. The acronym “MECs” stands for “Ministerial Executive Correspondence System”. Administrators would be responsible for entering briefing notes into that system. Mr Buchanan gave evidence that he directed his email of 31 March 2009 to Correspondence WAP and Mr Crothers so as to co-ordinate a working draft of the briefing note and attachments for approval by Mr Crothers, then Ms Best and ultimately by Mr Bradley (D 2, T, p 43, lns 45-46). Mr Buchanan gave evidence that a working draft may not “get worked up together”, and it “may just go straight through because it has all the information there, but, you know, it’s not approved until it goes through the approval stages” (D 2, T, p 43, lns 40-44).
121 Mr Buchanan gave evidence that when a brief is described as being “signed off” for the Minister that means that it has been signed off by Mr Crothers, Ms Best and Mr Bradley (D 2, T, p 44, lns 1-2).
122 Mr Buchanan accepted that the briefing note attached to his email of 31 March 2009 (Ex 3) was clearly a draft that had not been signed off by these three individuals (D 2, T, p 44, ln 4).
123 Mr Buchanan gave evidence that it was not his practice to send drafts of a Ministerial briefing note to the Ministerial Office without the briefing note being “signed off” in the way described. However, Mr Buchanan added “but that doesn’t mean that it doesn’t happen, and it doesn’t mean that I don’t get asked for it to happen”.
124 However, Mr Buchanan also gave evidence that, in this case, the draft briefing note attached to his email of 31 March 2009 was “not sent to the Minister’s Office” (D 2, T, p 44, lns 6-13).
125 The draft briefing note attached to Mr Buchanan’s email of 31 March 2009 recommends that the Minister note that the three declarations follow a period of consultation and consideration of community submissions. Mr Buchanan initially accepted that that observation indicated that at the time he was drafting the briefing note he thought the Minister was merely required to note the declarations (D 2, T, p 42, lns 40-41). Mr Buchanan then gave evidence that he thought he had mistakenly put that observation in the briefing note because at that time he felt “sure” that he “would have been aware that the Minister would have needed to approve” the declarations (D 2, T, p 42, lns 45-46; T p 43, lns 1-2).
126 However, Mr Buchanan accepted that his adoption of the paragraph observing that the “previous Minister approved for the declarations to be progressed to Governor in Council for approval and gazettal” indicated that at the time he drafted the briefing note he still thought that Minister Wallace had made the declarations (D 2, T, p 43, lns 9-10) but later “found out” that “that was not the case” (D 2, T, p 43, ln 12).
127 Mr Buchanan accepted that his draft briefing note (potentially to be improved and refined with Mr Crothers, (D 2, T, p 45, lns 19-20) indicated that his understanding was that Minister Wallace had made the declarations (D 2, T, p 44, lns 36-37).
128 Mr Buchanan gave evidence that his “team” drafted the letter from Mr Robertson to the Premier date stamped 31 March 2009 and signed by Mr Robertson (D 2, T, p 46, ln 11). Mr Buchanan said he also prepared the text of the Executive Council Minute attached to that letter (which at that time was undated) (D 2, T, p 47, lns 19-20). Mr Buchanan accepted that the Minute refers to declarations marked “B” to “D” and those declarations would have been put to the Minister as part of the bundle of documents comprising the proposed briefing note and proposed attachments marked “A” to “D”.
129 The letter to the Premier is a document that bears a tracking reference number CTS 1468/09.
130 Exhibit 11 is a tracking document that records the progress of the Minister’s proposed letter to the Premier through the departmental approval process. Mr Buchanan said that the document, Ex 11, represents an “administrative, as opposed to a time-frame tracking process”. It is part of an “administrative, archival and file retrieval system” (D 2, T, p 48, lns 25-27). Exhibit 11 describes Document 1468/09 as “Late ECM – Archer Basin, Lockhart Basin and Stewart Basin Declarations” [emphasis added]. Page 2 of the document sets out a schedule bearing the headings “Date Added”, “Added by” and “Comment History”. Mr Buchanan accepted that the bottom entry in the schedule is dated 18 February 2009 at 2.00pm and tells the reader that Kerry Pratt began preparation of the document on that day (D 2, T, p 48, lns 45-46). The fourth last entry on the page shows that at 9.57am on 19 February 2009, Kerry Pratt submitted Document 1468/09 for sign-off and the document was “[w]alked to Min’s office yesterday 18.2.09 with Executive Council Minute [ECM]”. The fifth last entry suggests that the signed letter and ECM were returned to the Executive Council Team on 19 February 2009 at 9.59am.
131 The sixth last entry shows, relevantly for present purposes, that on 31 March 2009 at 12.27pm the “[l]etter had to be redone for new Minister’s signature” and “[l]etter delivered to Minister with ECM 31.3.09”. Mr Buchanan accepted that the tracking document demonstrates that Mr Robertson’s letter to the Premier and the ECM went to Mr Robertson on 31 March 2009 (D 2, T, p 49, lns 21-25).
132 The seventh last entry is dated 31 March 2009 at 1.39pm, added by Kerry Pratt, and among other things, observes: “ECM and letter submitted to Premier at approx 1:30pm” [emphasis added]. Mr Buchanan accepted that this document demonstrates that Mr Robertson’s letter to the Premier, signed by him, went to the Premier at approximately 1.30pm on 31 March 2009.
133 On 1 April 2009 at 12.16pm, Mr Buchanan sent an email (Ex 4) to Gayle Webster. She had administrative responsibility for correspondence for Water Allocations and Planning (D 2, T, p 49, lns 45-46). The subject matter of the email is “CTS 02637 09 BN Declaration approval”. Mr Buchanan asks Gayle Webster to ensure that Attachments A, B, C and D from his earlier email are attached to the document. The document, CTS 02637/09, is a Ministerial Briefing Note for Mr Robertson. The briefing note contains the recommendation set out at [46] of these reasons, to approve the three declarations and note the submissions and results of consultations on the three declaration proposals. By the time of drafting this briefing note, Mr Buchanan knew that the Minister would need to make the declarations (D 2, T, p 50, lns 10-11).
134 On 1 April 2009 at 12.27pm, Mr Buchanan sent another email (Ex 5) to Gayle Webster (the person who bears the same address reference as “Correspondence WAP” (D 2, T, p 50, lns 28-29)) attaching a proposed media release. Mr Buchanan notes that Mr Crothers has made some changes to the media release resulting in the version attached to the email. The text of the media release deletes any reference to the considerations of the “previous Minister”.
135 The tracking document that records the progress of Document CTS 02637/09, Mr Buchanan’s Ministerial Briefing Note attached to Ex 4, is Ex 10. CTS 02637/09 is described in Ex 10 as concerning the “wild river declarations for the Archer, Stewart and Lockhart Basins and Governor-in-Council documents for approval to declare three wild river areas”. The “Author (Requestor)” is recited as “Scott Buchanan/Tom Crothers/Debbie Best/John Bradley/Minister Robertson which Mr Buchanan described as accurately reflecting the chain of approval for the briefing material (D 2, T, p 52, lns 4-5). Mr Buchanan would finalise the document and then pass it up through Mr Crothers, Ms Best, Mr Bradley and then to the Minister (D 2, T, p 52, lns 7-8).
136 The document attached to Mr Robertson’s affidavit as the Ministerial Briefing Note (and attachments) which he considered (as it turns out, on 31 March 2009 rather than 1 April 2009) attached as Annexure “SR1”, is numbered CTS 02637/09 and thus it is the same document as that referred to in the tracking document, Ex 10 (D 2, T, p 51, lns 38-40).
137 Mr Buchanan explained that Ex 10 shows that the brief went out of his unit’s hands at some time after 3.21pm on 1 April 2009. The brief progressed at that time from Gayle Webster to the Deputy Director-General, Ms Best, and into the “DDG correspondence system” (D 2, T, p 52, lns 24-29). The brief then reached the Deputy Director-General sometime before 4.57pm. Because the transmission of the documents occurred electronically, the recorded transmission times of 3.21pm and 4.57pm would “pretty close[ly]” reflect the actual or “instantaneous” transmission times (D 2, T, p 52, lns 33-43).
138 Exhibit 10 also shows by an entry dated 3 April 2009 at 3.05pm that the brief was approved by the Minister on 1 April 2009 which accords with Mr Buchanan’s understanding of the date when Mr Robertson approved the documents briefed to him (D 2, T, p 52, ln 47; T, p 53, lns 1-3). Mr Buchanan explained that Ex 10 tracks the briefing documents within the departmental decision-making process and once the document enters the Minister’s Office, the tracking document does not record the “actual time” the Minister received the documents or the date that the Minister “signs on that briefing note” (D 2, T, p 53, lns 5-23) because the tracking document tracks the progress of the document within only the Department (D 2, T, p 53, lns 14-17).
139 However, Mr Buchanan accepted that Ex 10 establishes and allows one to conclude that the briefing documents entered the Minister’s Office “sometime after 4.57[pm]” on 1 April 2009 (D 2, T, p 53, ln 25). Mr Buchanan also gave evidence that the draft briefing note the subject of his earlier evidence did not go to the Minister before 4.57pm (D 2, T, p 53, lns 27-28). Mr Buchanan accepted that “[s]o really 4.57[pm] is the time the document [that is, the document comprising CTS 02637/09] left the department to go to the Minister’s office” (D 2, T, p 53, lns 27-33).
140 Mr Buchanan gave evidence that the document (commencing at p 5 of Mr Robertson’s affidavit as Annexure “SR1”) is the final version of the briefing note he prepared (D 2, T, p 54, lns 21-22). The document is described as coming from Mr Crothers and having come through both the Deputy Director and the Acting Director-General. The document is signed by Ms Best, and Mr Buchanan understood that Mr Bradley was aware of the “policy position” adopted in the document. Mr Buchanan gave evidence that Attachments A, B, C, D and E, referred to in the briefing note, were attached to the briefing note (D 2, T, p 55, lns 6-21). No other documents were attached to the briefing note and this material represents the material assembled by Mr Buchanan for submission to the Minister (D 2, T, p 55, lns 23-27). Thus, the Ministerial Briefing Note with its attachments represented the “approval brief” for the Minister (D 2, T, p 55, lns 45-46). However, at the time that Mr Buchanan wrote the briefing note and assembled the attachments he understood that the Minister had before him the letter to the Premier and the Executive Council Minute and the documents attached to that Minute (D 2, T, p 55, lns 41-43; T, p 56, lns 1-3). Mr Buchanan said that the briefing note material combined with that other material represented the material that the Department put to the Minister to enable him to make the declarations (D 2, T, p 56, lns 8-10).
141 Mr Buchanan also gave this evidence in response to the following question (D 2, T, p 56, lns 12-18):
Question: And no other material in addition to that?
Answer: Well, there was material in front of the Minister when he – and this is my understanding from the information that has been provided through the senate inquiries and parliamentary inquiries into the Commonwealth introduction of a Wild Rivers Bill but it’s my understanding that the Minister had the material when he took over office so it was provided as the early briefings. So this information and the briefings and previous information had been provided to Minister Wallace [and] was before the Minister.
142 Mr Buchanan said that this other information was the drafts of the declarations, the previous briefing notes and the previous information that had been provided to former Minister Wallace. Mr Buchanan accepted that in terms of the material he and his team had put to the Minister, through Mr Crothers and Ms Best, the material at that time was only “this briefing note and the executive council minute and letter and attachments” (D 2, T, p 56, lns 26-30).
143 Mr Buchanan accepted that no document was attached to the briefing note or to the Executive Council Minute that described the content of the declaration and no brief was prepared that summarised the content of the declarations attached to the Executive Council Minute (D 2, T, p 56, lns 35-39).
144 As to the submissions, Mr Buchanan accepted that the briefing note records that 3,602 submissions were received with 2,826 submissions considered to be properly made. A submission was regarded as properly made if made in accordance with the provisions of the Act in terms of the name of the submitter, address details and other such matters. Mr Buchanan gave evidence that he suggested that these numbers were not accurate although they certainly were numbers put to the Minister at the time of the decision (D 2, T, p 57, lns 11-15). Mr Buchanan accepted that para 17 of Attachment A makes reference to 2,577 submissions received through the Wilderness Society’s website out of the 3,602 submissions received in all. Mr Buchanan accepted that the disk he put in evidence through his affidavit is a disk described as containing the pro forma submissions. Mr Buchanan was responsible for supervising the preparation of the CD and he said that he had read a “fair number of those” on the CD and was aware of the repetitive nature of the pro forma letters and emails (D 2, T, p 54, lns 5-14). Mr Buchanan accepted that the CD contains 2,244 documents (D 2, T, p 54, ln 16). Mr Buchanan accepted that if 2,826 submissions were properly made and the CD contains 2,244 pro forma submissions, there are 582 other submissions apart from the pro forma submissions. Mr Buchanan gave evidence that this apparent anomaly led him to suggest that the numbers given to him and inserted into the Ministerial Briefing Note “are not correct” (D 2, T, p 57, lns 44-46), notwithstanding that these were the numbers given to the Minster. Mr Buchanan also accepted that at p 29 of Mr Robertson’s affidavit (Annexure “SR2”), is a list of 23 submissions and this list, together with the CD, represented Attachment E to the Ministerial Briefing Note (D 2, T, p 58, lns 15-16; lns 39-40). Mr Buchanan said that the 23 submissions at Annexure “SR2”:
… are the submissions received on the three declarations that the submitters or the individual had put so that they had written it individually. It was their own words. It was not a pro forma from the Wilderness Society so these were the only submissions we received other than the Wilderness Society submissions – pro forma submissions.
145 Mr Buchanan gave evidence that the Department provided the Minister with printout copies of all the submissions that people had made who had gone to the effort of making individual and considered submissions plus the CD of the pro forma submissions. Mr Buchanan contended that once one had read one copy of the email or letter forming part of the pro forma submissions, the reader knew all the information contained in all of them. Mr Buchanan said that “[i]t was really about the – the quality of the submission and so I would argue that the people that put the effort into these 23 submissions had put some considerable thought – forethought and – and time into them rather than going to a website and just hitting a button” (D 2, T, p 59, lns 5-8). Mr Buchanan accepted that a reader of the briefing note would have been able to identify a deficit in the number of submissions based on the numbers.
146 Mr Buchanan gave evidence that Attachment E comprising the CD and the 23 submissions was annexed to the briefing note in a folder accompanying the paper documents (D 2, T, p 61, lns 9-19). Mr Buchanan’s team assembled the folders of submissions. Mr Buchanan saw the folders and his vague recollection is that the folders containing the submissions were red. They could possibly have been pink. Mr Buchanan could not recall whether there was any material “in a box” (D 2, T, p 61, lns 38-46; T, p 62, lns 1-5).
147 Mr Buchanan accepted that the briefing note (and attachments) left the Department at 4.57pm on 1 April 2009 for the Minister’s Office and from that time the Minister had what he needed, to make the approval, from Mr Buchanan’s point of view. When pressed with the proposition that before the briefing note was sent to the Minister’s Office, the Minister did not have before him material needed to make an approval, Mr Buchanan returned to his earlier evidence that his understanding was that the Minister “did have all the material that was filed” and had the information “in front of him” (D 2, T, p 63, lns 6-9). Mr Buchanan accepted that on 1 April 2009 the Minister had, from the Department, the Executive Council Minute material and the briefing material. When pressed with the notion that the briefing material of 1 April 2009 was critical to the making of the decision to declare wild river areas, Mr Buchanan said that the briefing material was critical, he thought, to “formalising that decision”. In this context, Mr Buchanan gave further evidence that his understanding was that the material which was before former Minister Wallace was available to Minister Robertson “at that stage”. Mr Buchanan accepted that his understanding of that matter was based upon things he had heard of evidence given in front of Parliamentary committees and that he did not, himself, give the Minister any additional information (D 2, T, p 63, lns 14-27).
148 Mr Buchanan accepted, confining himself to things about which he could speak, that until Mr Robertson received the briefing note on 1 April 2009 containing the material Mr Buchanan had assembled, Mr Robertson did not have “details of the consultation” (D 2, T, p 63, lns 31-34). Nor did Mr Robertson have, from Mr Buchanan, the detail of the submissions, nor the detail that is given in the body of the briefing note (D 2, T, p 63, lns 36-39).
149 Mr Buchanan also accepted that the documents put to the Minister did not include any digital electronic data about maps. However, the maps were included in the declarations. They were indicative only and the text of the declarations describes them as indicative only. Mr Buchanan accepted that the only place for finding legally accurate data is the digital electronic data and the Minister did not receive a copy of that database.
150 As to the Archer declaration, Mr Buchanan gave evidence that he was aware that the boundary of the Archer declaration had changed between the proposal set out in the declaration proposal and the final declaration as made. Mr Buchanan was taken to a coloured map showing pink and green areas. The map shows an area shaded pink that was contained within the declared area as part of the declaration proposal but was not included in the final declaration. An area shaded in green was not identified in the declaration proposal as part of the proposed declared area but was contained in the final declaration as made. Mr Buchanan accepted that that matter was not specifically mentioned in the briefing note, although his answer in the transcript is wrongly attributed to the Court (D 2, T, p 62, lns 29-46).
151 No evidence was given in the proceeding by Mr Bradley, Ms Best or Mr Crothers.
Mr Robertson’s letter to the Premier of 31 March 2009
152 Mr Robertson gave evidence that “in parallel” with the development of a Ministerial Briefing Note by the Department and in particular by Mr Buchanan’s team, the Department was also preparing, through Mr Buchanan’s team, the documents to enable the matter of the consideration and potential approval by Governor-in-Council of the Minister’s three declarations to be urgently listed on the list of matters to be considered by Governor-in-Council on Thursday, 2 April 2009. The letter to be sent by Minister Robertson to the Premier together with enclosures was delivered to his office at 12.27pm on 31 March 2009 and the tracking document (Ex 11) describes it as a “late ECM”. The letter together with enclosures was delivered to the Premier’s office at approximately 1.30pm. Plainly, the letter was delivered to Mr Robertson, signed by him, and then delivered to the Premier, or at least the Department of Premier and Cabinet, within about an hour of Mr Robertson receiving the letter for signature, as part of the machinery of Government arrangements for listing the relevant matter on the agenda of matters to be dealt with by Governor-in-Council on Thursday, 2 April 2009.
153 The letter is date stamped 31 March 2009 and agitates for an urgent consideration by Governor-in-Council of the Minister’s making of the declarations and attaches the proposed approval Notice. The letter is in these terms:
Dear Premier
I refer to the attached Executive Council Minute titled “A Notice and Declarations” under the Wild Rivers Act 2005 (the Act) which seeks approval for the Notice declaring the Archer Basin, Lockhart Basin and Stewart Basin wild river areas.
Under section 16(1) of the Act, the Governor in Council may, by gazette notice, approve a wild river declaration. The declaration is a statutory instrument and as required I will table these declarations in the Legislative Assembly within 14 sitting days after the declarations are approved.
Notices of intent and declaration proposal notices were published and wild river declaration proposals were released for the Archer, Lockhart and Stewart River basins on 23 July 2008 in accordance with sections 8 to 12 of the Act. The public consultation period for these declaration proposals closed on 21 November 2008 with 3602 submissions being received and some 2826 submissions of these considered to be properly made.
As required under section 13 of the Act, in preparing these wild river declarations, I have considered the results of community consultation and all properly made submissions about the declaration proposals. No water resource plans or resource operations plans apply to any of the proposed wild river areas.
This matter is of an urgent nature as
There has been a commitment by government to the conservation sector to expedite the finalisation of the Archer Basin, Lockhart Basin and Stewart Basin wild river declarations.
The release of these declarations provides for the first reserves of “Indigenous water” for the purpose of helping Indigenous communities on Cape York Peninsula achieve their economic and social aspirations. This demonstrates the State’s commitment to meet its obligations under the Cape York Peninsula Heritage Act 2007.
The expeditious finalisation of these declarations provides resource certainty to affected stakeholders who have been constrained by moratorium provisions since January 2007.
These declarations demonstrate the government’s strong commitment to protecting and securing the unique biodiversity of our environment, as part of the vision for Toward Q2: Tomorrow’s Queensland.
The finalisation of these declarations will facilitate the progression of the next tranche of wild river declarations on Cape York Peninsula in accordance with the government’s announced program.
The finalisation of these declarations demonstrates the government’s continued delivery of the 2004, 2006 and 2009 wild rivers election commitments.
Accordingly, I seek your permission to submit the attached Executive Council Minute at the next Executive Council meeting on Thursday, 2 April 2009.
[emphasis added]
154 The letter attaches in an undated form a proposed Executive Council Minute in the terms quoted at [69] of these reasons. That Minute became Executive Council Minute No. 130 and it was initialled by Mr Robertson on 2 April 2009. The letter also attached an “Explanatory Memorandum” (“EM”) which became a part of the Executive Minute papers for Minute No. 130. As earlier mentioned, the EM was signed by Ms Best as Deputy Director-General for the Acting Director-General, Mr Bradley, and dated by her 31 March 2009. It was also signed by Mr Robertson and dated by him 31 March 2009. The subject of the EM is described as: “A Notice advising the approval of the declaration of the Archer Basin, Lockhart Basin and Stewart Basin wild river areas”.
155 The statutory source of the power to approve the proposed Notice is described as s 16 of the Act. The EM sets out the background to the proposed approval Notice in these terms:
Under section 16(1) of the Act, the Governor in Council may, by gazette notice, approve a wild river declaration. The declaration is a statutory instrument and it will be tabled by the Minister in the Legislative Assembly within 14 sitting days after the declaration is approved.
Notices of intent and declaration proposal notices were published and wild river declaration proposals were released for the Archer, Lockhart and Stewart River basins on 23 July 2008, in accordance with sections 8 to 12 of the Act. The public consultation period for these declaration proposals closed on 21 November 2008. Some 3602 submissions were received with 2826 submissions considered to be properly made.
Consultation on the declaration proposals occurred with a range of stakeholders from the release of the proposals until the end of the submission period. Extensive consultation had also occurred prior to the release of the declaration proposals to raise awareness of the Act and the implications of a wild river declaration.
As required under section 13 of the Act, in preparing the wild river declarations, the Minister has considered the results of community consultation and all properly made submissions about the declaration proposals. No water resource plans or resource operations plans apply to any of the proposed wild river areas.
The Archer, Lockhart and Stewart Basin wild river declarations intend to preserve the natural values of the wild rivers in each basin by managing a range of future development activity and resource use in the wild river area. Each declaration specifies:
the management areas of the respective wild river areas;
the rules for taking natural resources; and
the requirements to be imposed on future development activities.
[emphasis added]
156 The EM then sets out the annual maximum volumes of reserves of water provided for by each declaration in each basin. The EM also says this:
Purpose and Consequence
This Minute seeks approval for the Notice marked “A” declaring the Archer, Lockhart and the Stewart Basins as wild river areas, in accordance with the declarations marked “B” to “D”.
The declarations will be tabled in the Legislative Assembly within 14 sitting days after the declarations are approved.
157 The EM at pp 2, 3, 4 and 5 sets out a discussion of the consultation process “undertaken with relevant stakeholders, including Traditional Owners”, in each of the three river basins. The EM observes that letters of notification, copies of the declaration proposals and overview reports as well as maps and a variety of “relevant fact sheets” were sent to peak bodies and affected stakeholders on release of the declaration proposals. Consultation with relevant stakeholders is said to have occurred prior to and following the release of the declaration proposals including meetings with over 100 groups and 300 individuals during the submission period. The EM also observes that the Department’s consultation strategy for wild river declaration proposals on Cape York Peninsula “recognises that Indigenous communities and Traditional Owners are the most significant stakeholder groups on the Peninsula”.
158 The EM describes in more detail the representative bodies for indigenous communities consulted by the Department. Apart from indigenous representative bodies, the Department consulted “peak bodies” including Agforce Queensland, the Wilderness Society, and the Queensland Resources Council. The EM records that mining company representatives, pastoralists, business operators and community-based organisations were also consulted by the Department.
159 The EM then sets out a commentary under the heading “Results of Consultation” under various subheadings, with particular groups and organisations including conservation groups, Traditional Owners and indigenous organisations, peak indigenous bodies including representative bodies such as the Cape York Land Council and the Balkanu Cape York Development Corporation, local Government bodies, pastoralists, mining and other development bodies and other stakeholders.
160 The Executive Council Minute attaches the proposed Notice of approval described as “Wild River Declaration Notice (No. 01) 2009”. The Minute, as the EM records, attaches each declaration marked “B”, “C” and “D”.
161 Each declaration is an extensive document.
162 In the Archer Basin declaration, for example, the declaration describes the purpose of the declaration as preserving “the relevant natural values of the wild rivers in the Archer Basin Wild River Area”. The natural values are said to include, but are not limited to, five categories of values relating to: hydrologic processes including the natural flow of water in the catchment and river systems within the basin; geomorphic processes including the natural erosion, transport and deposition of sediments by water throughout the catchment; riparian function including a range of processes that occur in, or as a result of, vegetation growing adjacent to streams, estuaries, lakes, floodplains and wetlands; wildlife corridor function; and water quality including the physical, chemical and biological attributes of water in the wild rivers that support and maintain natural aquatic and terrestrial ecosystems.
163 The declaration describes the “Archer Basin Wild River Area” as an area “that is the extent of the catchments of the Archer River, the Love River and the Kirke River”. The declaration then sets out the wild rivers in the basin and the tributaries of those wild rivers. It also sets out the special features of the wild river area. As to the boundaries, the declaration says that the location of the boundaries of the Archer Basin Wild River Area, the identified wild rivers and their major tributaries and the location of the identified special features are: “(a) shown on the map in schedule 1, which is indicative only; and (b) detailed by data in digital electronic form by the department’s Spatial Information Resource which may be inspected at the department’s offices, including at …”. Each declaration follows a similar format adapted to the particular features and considerations relevant to the particular wild river area in question.
164 At para 15C of the Statement of Claim, the applicants contend that the three declarations are invalid because Mr Robertson decided to make the three declarations before considering, properly or at all, the properly made submissions about, or the results of community consultation concerning, each of the Archer, Lockhart and Stewart basin wild river area declaration proposals. The particulars of that contention are these.
165 First, on 31 March 2009, Mr Robertson signed the EM for the Executive Council Minute attaching the three declarations in their final form when Mr Robertson had not received or read the properly made submissions about each of the three declaration proposals or the briefing note setting out the results of community consultation concerning each of the three declaration proposals.
166 Second, the EM recited that Mr Robertson had considered all properly made submissions and the results of community consultation when he had not done so at the time of signing the EM.
167 Third, Mr Robertson wrote to the Premier advising her that he had considered all properly made submissions and the results of community consultation when he had not done so at the time the letter was signed by him.
168 Alternatively, the applicants contend that the three declarations are invalid because Mr Robertson did not consider, properly or at all, the properly made submissions about, or the results of, community consultation for the three declaration proposals. The particulars of that alternative contention are these.
169 First, the briefing note simply requested that Mr Robertson note the submissions and results of consultation rather than consider them.
170 Second, in any event, Mr Robertson did not note the briefing note.
171 Third, Mr Robertson did not receive the briefing note until sometime after about 5.00pm on 1 April 2009.
172 Fourth, Mr Robertson did not receive all of the properly made submissions about the three declaration proposals.
173 Fifth, Mr Robertson wrongly concluded that certain matters raised in properly made submissions were not relevant to the making of a declaration.
The state of the evidence concerning the making of the declarations
174 At this point, it is convenient to make these observations about the state of the evidence concerning the making of the three declarations by Mr Robertson and the consequent approval of the instruments by Governor-in-Council.
175 Mr Robertson gave clear, affirmative evidence, by his affidavit, that on Wednesday, 1 April 2009, he considered the Ministerial Briefing Note and Attachments A, B, C, D and E to that briefing note comprising Annexures “SR1” and “SR2” to his affidavit, and that day he made the declarations under the Act, having considered the material he so identified.
176 The evidence of Mr Buchanan is that Attachment E consisted of the 23 submissions at Annexure “SR2” and the CD containing 2,244 pro forma Wildlife Society website submissions. The evidence suggests that there were some variations to those submissions such that they were not all identical. For present purposes, I treat each of the submissions on the CD as sufficiently similar to accurately describe them as a body of pro forma submissions which were substantially in similar terms. Put another way, I proceed on the factual basis that to the extent that some of the pro forma submissions contain introductory paragraphs in different terms, those matters of differentiation are insignificant matters in the sense contemplated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at Proposition (c) on p 40.
177 Mr Robertson also gave evidence by para 10 of his affidavit that at the same time that he considered the Ministerial Briefing Note and attachments and approved the declarations, he approved the progression of the “requisite documents” to the Governor-in-Council for “final approval and gazettal”. The material recited at Annexure “SR3” consists of the Executive Council Minute (undated), an Explanatory Memorandum prepared for consideration by the Governor-in-Council which Mr Robertson signed and dated 31 March 2009, and a copy of the Wild Rivers Declaration Notice (No. 01) 2009. The evidence of Mr Buchanan is that copies of the declarations were with the Executive Council material, marked “B”, “C” and “D”.
178 Mr Robertson also signed and dated, 31 March 2009, a letter to the Premier prepared for him by Mr Buchanan’s team. That letter was delivered to the Minister’s office at 12.27pm that day and then, once signed, delivered to the Premier’s Office at about 1.30pm on 31 March 2009. That letter attached the material described at [154] and [160] of these reasons.
179 However, the particular and fundamental difficulty is that Mr Robertson gave oral evidence that he made his decision, that is, he made the declaration decisions on Tuesday, 31 March 2009. He was very clear about that and I accept his evidence in that regard and find that he made his decision to declare the three basin areas as wild river areas sometime on 31 March 2009. That being so, Mr Robertson could not have made the declarations after having considered the matters contained within the material he said he considered and relied upon in exercising the discretion conferred by s 15 of the Act because the material he identified for that purpose was not delivered to his office until 4.57pm on 1 April 2009. That material included the CD and the 23 submissions. More particularly, the totality of the material at Annexures “SR1” and “SR2” upon which he said he relied, was simply not before him on 31 March 2009.
180 Plainly enough, other material was before him on 31 March 2009 comprising the material Mr Buchanan’s team was preparing “in parallel” with the preparation of the Ministerial Briefing Note and attachments. The nature of that material bears repeating. It consisted of a draft letter to the Premier prepared by Mr Buchanan’s team submitted to Mr Robertson for signing so as to seek the urgent progression of the approval of the declarations, by Governor-in-Council on Thursday, 2 April 2009. The letter attached an undated copy of the proposed Executive Council Minute and a copy of the Explanatory Memorandum for Governor-in-Council. That document was signed by Ms Best and the Minister on 31 March 2009. The material also included a copy of the proposed gazette notice and as already mentioned, Mr Buchanan gave evidence that a copy of each declaration was attached to the Executive Council Minute.
181 However, this material was not the material Mr Robertson said he relied upon in making the declarations on 31 March 2009.
182 The briefing material comprising the briefing note and attachments expressly identified by Mr Robertson as the material he considered was not before him on 31 March 2009.
183 In his evidence, Mr Robertson suggested, and said he believed, based on experience, that because it was not uncommon for draft copies of Ministerial Briefing Notes and attachments to be provided to the Minister, it is likely that the material he identified as Annexures “SR1” and “SR2” was before him in draft on 31 March 2009. However, Mr Robertson had no actual recollection that any such draft material was before him. He simply assumes that that may have been so having regard to prior experience or practice.
184 Mr Buchanan gave evidence that a draft version of the briefing material was not provided to the Minister in relation to these declarations.
185 The material said to have been relied upon by Mr Robertson did not enter his Ministerial office until 4.57pm on 1 April 2009.
186 Mr Robertson also gave evidence that the material that had previously been assembled by the Department for former Minister Wallace’s consideration may well have been available to him for his consideration prior to receiving the departmental briefing note and attachments (Annexures “SR1” and “SR2”). However, Mr Robertson did not assert or give any evidence of a sequence of events which involved his taking up particular material which was before former Minister Wallace, considering identified material and then acting upon that material as the body of material relied upon in making the declarations.
187 Rather, he identified the material consisting of the departmental brief prepared by Mr Buchanan and approved through the departmental decision-making processes ultimately resulting in the Ministerial Briefing Note and attachments being delivered into his office late on the afternoon of 1 April 2009.
188 The material recited at [154] and [160] of these reasons was part of the machinery of Government arrangements for urgently listing matters for the consideration of the Governor-in-Council. Minister Robertson does not say that he made the declarations on 31 March 2009 in reliance upon that material. Undoubtedly, that material informed his mind in some respects but his evidence is that he made the declarations in reliance upon the material identified as Annexures “SR1” and “SR2”.
189 That makes some sense because the briefing note and attachments represent the material the Department believed Mr Robertson needed to have before him for consideration in exercising the discretionary power conferred upon him by s 15 of the Act. In answer to the proposition that he could not have relied upon the material he believed he relied upon, on 31 March 2009, as the evidence of the public servants would be that the briefing material did not enter his office until 4.57pm on 1 April 2009, he rather thought that drafts of the material “would have been” before him as that was a “not uncommon practice”.
190 The 23 declarations (and the CD) accompanying the Ministerial Briefing Note were assembled in red (or possibly pink) folders by Mr Buchanan’s team and Mr Buchanan recalled seeing those folders and thought that they were red folders. Mr Robertson gave evidence that he seemed to recall that the submissions were in pink folders. I am satisfied, and so find, that it was much more likely than not that the submissions in red (or pink) folders making up Attachment E as prepared by Mr Buchanan’s team were the pink folders that Mr Robertson recalled seeing, rather than submissions earlier provided to former Minister Wallace.
191 Section 15 of the Act provides that after considering the matters mentioned in s 13 of the Act, and any other matters the Minister considers appropriate, the Minister may declare an area to be a wild river area. Mr Robertson did not exercise the statutory discretion conferred upon him under s 15 of the Act after considering the matters that he regarded as appropriate to consider, namely, the matters contained within the material at Annexures “SR1” and “SR2” of his affidavit being the briefing note material and attachments. Mr Robertson exercised the statutory discretion before actually considering that material notwithstanding that he regarded addressing the matters contained within that material as appropriate considerations in the exercise of the discretion under s 15. The true position on the evidence is that Mr Robertson only saw the briefing material after he had made his decision and he is confused about, firstly, the possibility of seeing drafts of that material on or before 31 March 2009 as on the evidence, there were no drafts of that material sent to the Minister by departmental officers and in particular by Mr Buchanan, the leader responsible for the material. Secondly, to the extent that Mr Robertson looked at the briefing material (including the submissions), it occurred after he had made his decision.
192 There is no suggestion in the evidence of Mr Robertson that having made the decision on 31 March 2009 he then revisited or re-made that decision, in effect, by considering the briefing note material and affirming an earlier decision, in reliance upon the briefing note and attachments. Mr Robertson simply does not give that evidence. Moreover, he does not say that, as the repository of the power, the exercise of his decision-making discretion was, in any sense, a bifurcated process by which he made a decision to declare on 31 March 2009 but later made the declarations on 1 April 2009. He says he made his “decision” on 31 March 2009 and embraced the proposition that that “was it” and he then moved on to other Ministerial duties. He says he authorised the progression of the Executive Council material to the Department of Premier and Cabinet having approved the making of the declarations that day. The Executive Council material before him on 31 March 2009 was not the deliberative material relied upon by him, according to his thoughtful affidavit, for consideration in the exercise of the s 15 discretionary power. This material was developed “in parallel” with the departmental briefing note, to advance the matter as an urgent and late ECM onto the agenda for Governor-in-Council on 2 April 2009.
193 Both the letter to the Premier of 31 March 2009 seeking the urgent progression of the declarations to Governor-in-Council on 2 April 2009 for approval and the EM in support of the proposed Executive Council Minute, recite, in particular, the matters identified in italics at [153] and [155] of these reasons. Those documents signed on 31 March 2009 both attempt to recite that Mr Robertson had considered the results of community consultation on the declaration proposals and all properly made submissions about those proposals. Each quoted paragraph makes reference to the requirements of s 13 of the Act but the author of the documents is trying to convey compliance by the Minister with the pre-conditions of s 15 of the Act upon which, in part, the exercise of the discretion rests, namely, consideration of two of the s 13 “matters”. However, those two paragraphs in italics quoted at [153] and [155] are, and I find, recitations of anticipated fact by the authors of those documents as a necessary and urgent parallel part of progressing the Governor-in-Council approval process for consideration on 2 April 2009, rather than a statement of actual fact concerning the Minister’s consideration by that date of the two identified matters, which consideration had not occurred because Mr Robertson did not have the decision-making material before him until the next day.
194 Mr Robertson’s position on the evidence is that he made the decision on 31 March 2009 and “that was it”. He then moved on to other Ministerial business. He did not later turn to the departmental briefing note and attachments on 1 April 2009 and reconsider and remake his earlier decision.
195 It follows that Mr Robertson did not exercise the statutory discretionary power, according to the s 15 integers. By his evidence, Mr Robertson necessarily regarded the material comprising the briefing note and attachments as containing s 13 “matters” he had to consider and “other matters” appropriate to the exercise of the power (for example, the commentary in the briefing note and matters set out in the other attachments). However, Mr Robertson elected to decide the matter and make the declarations on 31 March 2009 before considering the Ministerial Briefing Note and attachments.
196 More fundamentally, there is no suggestion in the evidence of Mr Robertson that on 31 March 2009 he turned to the material then before him in terms of the Executive Council material described at [154] and [160] of these reasons (the Annexure “SR3” material but also the letter to the Premier and attachments) and relied upon that material as the basis of his deliberative consideration of the “matters mentioned in s 13” and “any other matters” thought appropriate to his considerations in the exercise of the discretion under s 15.
197 As to the instruments of declaration, Mr Robertson had no recollection of whether even draft declarations existed or were before him and he had no actual recollection of considering those instruments.
198 As to the s 13 matters, s 13 of the Act provides (leaving aside questions in relation to water resource plans or resource operations plans), that in preparing a wild river declaration, the “matters” the Minister must consider, include the results of community consultation on the declaration proposals, and all properly made submissions about the declaration proposals. The exercise of the discretionary power conferred upon the Minister, as the repository of the power, by s 15 requires the Minister to consider those two matters as a pre-condition to the lawful exercise of the power. Section 15, of course, also contemplates that the Minister may take into account any other matters which he or she considers appropriate to the exercise of the power to declare, or decide not to proceed. Section 15 is an example of a statutory provision that, on the face of the language of the section, prescribes an act or the occurrence of an event as a condition of the power, that is, a provision which, on its face, denies the availability of the power unless the prescribed act is done or the prescribed event occurs. It suggests that no power is available for exercise by the repository of the power unless the condition is satisfied.
199 On the face of s 15, a purported exercise of the power when such a condition has not been satisfied is not a valid exercise of the power.
200 However, the test of whether non-compliance with the condition is “attended with invalidity”, to use the phrase of Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [37], is the test identified by their Honours, McHugh, Gummow, Kirby and Hayne JJ in that case at [91], in these terms:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied [Howard v Bodington (1877) 2 PD 203 at 211, per Lord Penzance]; there is not even a ranking of relevant factors or categories to give guidance on the issue.
201 I am satisfied on the evidence that on 31 March 2009 the 23 submissions in the form of “Attachment E” were not before the Minister. I am also satisfied as a matter of construction of the clear and imperative language of s 15 of the Act that the Minister is required to consider the matters mentioned in s 13, personally.
202 Section 15 of the Act identifies the Minister as the person who must consider all properly made submissions. Although it is well recognised that a Minister of State with portfolio responsibility for particular legislation often acts in the discharge of Ministerial responsibilities through public service officers who staff departments of State which support the Minister, the question to be determined as a matter of construction of the Wild Rivers Act is whether s 15 of the Act in terms of its express language, construed in the context of the objectives and purposes of the legislation, requires the Minister to personally consider the s 13 matters and personally consider any other matters thought appropriate by him or her. Having regard to ss 15 and 13 and the purpose of the Act recited in s 3, I am satisfied that the proper construction of the provisions requires the Minister to personally consider each of the s 13 matters in exercising the power under s 15.
203 In this case, of course, the Department provided copies of the actual submissions in the form of the 23 submissions and the CD for the Minister’s consideration. That approach in providing such material to the Minister is entirely consistent with the notion that the Minister must consider the s 13 matters personally.
204 The 23 submissions (and the CD) in the form of Attachment E, were not before the Minister on 31 March 2009. Nor was the briefing note or the other attachments (A, B, C and D) all of which Mr Robertson said he had considered in exercising the discretion under s 15 of the Act. Some, perhaps all, of the material making up Attachment E was otherwise before him in “a box” as part of material that he had access to comprising material previously put to former Minister Wallace. However, two important things need to be noted about this material.
205 First, Mr Robertson could not recall when he opened the box of material put to Mr Wallace and he certainly gave no evidence of looking at and considering particular material such as a former briefing note or reading each of the individual submissions. Neither his affidavit nor his oral evidence identifies any detail concerning an analysis of that material as an essential part of his decision-making consideration of the relevant matters.
206 Secondly, Mr Robertson put particular emphasis upon the likelihood, in his view, that drafts of Mr Buchanan’s briefing note and each of the attachments would have been before him on 31 March 2009 thus informing his consideration of the s 13 matters and the other matters he says he considered. Plainly enough, Mr Robertson thought that his considerations in exercising the s 15 discretion were informed by the briefing note and the five attachments organised by Mr Buchanan, and thus Mr Robertson believed that he would have had a draft of that particular material before him on 31 March 2009. That was not so, on the evidence.
207 The actual position on the evidence is, however, clear.
208 Mr Robertson was a Minister with portfolio responsibility for a policy position on wild river declarations his party had taken to the election. Mr Robertson gave evidence that the Premier had told him personally that she wanted the declarations progressed with, obviously enough, some urgency and, according to Mr Robertson’s evidence, the Director-General of the Department of Premier and Cabinet had told his departmental representatives and presumably at a very senior level, to progress the matter in accordance with that view. Due to the urgency of placing the question of approval by Governor-in-Council of the declarations on the agenda of matters for consideration by Governor-in-Council on 2 April 2009, the machinery of Government arrangements required a request to be made of the Premier to list the matter for consideration by Governor-in-Council urgently, supported by the “requisite documents” consisting of the Executive Council Minute and other attachments.
209 That step occurred on 31 March 2009 and Mr Robertson gave evidence that he would not have implemented that step without approving the making of the declarations. When he did so on 31 March 2009, the Ministerial Briefing Note and attachments had not been completed by the Department, no doubt due to the urgency of the matter and the circumstance that the previous Minister had not made the declarations. The essential material was completed and only delivered to the Minister’s office at 4.57pm a day later.
210 The proper statutory sequence required Mr Robertson to first consider the s 13 “matters” and the other matters contained in the briefing note and attachments which Mr Robertson thought (by reason of his identifying the material in his affidavit) contained “other matters” appropriate to his consideration in the exercise of the discretion under s 15, and then exercise the statutory discretion to declare each wild river area. Because Mr Robertson has not identified particular material in the material before former Minister Wallace, nor identified in detail the content of any process of examination and consideration by him of that material, I am not satisfied that on or by 31 March 2009 Mr Robertson had relied upon the material before former Minister Wallace in considering the relevant matters required by s 15 of the Act.
211 Rather, Mr Robertson’s thoughtful affidavit of 9 August 2011 suggests nothing of the sort and identifies entirely different material as the foundation for his considerations in exercising the discretionary power under s 15.
212 Similarly, I am not satisfied that the EM attached to the Executive Council documents represents material that Mr Robertson relied upon concerning matters relating to the results of community consultation on each declaration proposal as required by s 15(1) and s 13(1)(a) of the Act. Mr Robertson did not assert that, or anything like that, in his thoughtful affidavit. Rather, he regarded Attachments A and B as the material informing his considerations on the question of matters related to “the results of community consultation on the declaration proposal” and he rather thought that he would have had a draft of that material before him on 31 March 2009.
213 In making these remarks, arising out of a detailed analysis of the documents and the oral evidence, I do not mean to suggest that Mr Robertson was doing anything other than seeking to give his best and frank recollection of the factors that informed his considerations in exercising the power to declare the three wild river areas.
214 However, once the detail of the chronology of events is analysed and, in particular, by reference to the tracking documents, it can be seen that the decision to make the declarations was a function of urgently delivering upon an election promise, and Mr Robertson’s act of purporting to exercise the power under s 15 occurred due to the urgency of seeking to have the matter of the declarations addressed by the Governor-in-Council as early as 2 April 2009, with the result that making the declarations got ahead of the formulation of the material addressing the preconditions upon which the exercise of the power rested, then being prepared for Mr Robertson for that purpose by the Department.
215 It follows that the exercise of the discretion by the repository of the power has miscarried for the procedural reasons identified having regard to the particular evidence in this case and thus the declarations were not properly made for the purposes of s 15 of the Act by Mr Robertson as Minister. The clear statutory purpose derived from the language of the section and the Act, its subject matter and objects and the contextual operation of the Act is that the exercise of the power is rendered invalid by non-compliance with the preconditions.
216 The declarations made by Mr Robertson do not constitute declarations under the Act capable of approval by the Governor-in-Council by gazette notice for the purposes of s 16 of the Act.
217 It follows that declarations are to be made by the Court that the approval of the Archer Basin Wild River Declaration 2009 (Qld), the Lockhart Basin Wild River Declaration 2009 (Qld) and the Stewart Basin Wild River Declaration 2009 (Qld) by the Governor-in-Council on 2 April 2009 the subject of the gazettal notice of 3 April 2009 is invalid and of no effect.
218 In light of the preceding conclusions, it is not necessary to deal with the alleged grounds of invalidity recited in [5] to [7] of these reasons.
219 The State of Queensland will be ordered to pay the costs of the applicants of and incidental to the proceedings.
| I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
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