THE MEANING OF IMPACTS - THE NATHAN DAM CASE ON APPEAL

摘要

The reasons articulated by the Full Court were more limited than those of Kiefel J. The approach of the Full Court was essentially twofold. First, to ascribe to the word impacts its ordinary meaning and, second, to apply that meaning as a matter of fact to the circumstances of the case. For this purpose, an "impact" is an influence or an effect of an action. This may include the indirect consequences of a proposed action, for instance those consequences that are the result of actions other than those of the proponent of the action. It is the objectively identifiable impacts in this sense that are the subject of the clearly mandated duty in s 75(2)(a) of the Act. Much of Kiefel J's reasoning had focused upon the values protected by the legislation. This was to some extent implicit in the approach adopted by the Full Court. Their Honours nevertheless made it clear that "the ordinary English meaning of impacts' mandates an enquiry consistent with the objects" of the Act. Indeed, the objects of the Act as set out in s 3(1) were stated in detail in the second paragraph of the reasons for judgment. These make it clear that the focus of the legislation is the protection of the environment and the conservation of biodiversity, notwithstanding that different values, such as economic and social considerations, are clearly relevant in other decision-making processes under the Act. Their Honours clearly were influenced by the nature and function of the process prescribed by s 75. Thus: The consideration required by s 75(2) is a "gateway" process which does not permit or prohibit a proposed action but merely determines whether it should be subject to one of the prescribed modes of assessment, and is one of the processes to which is made applicable the "precautionary principle" defined in s 391 of the EPBC Act. So, while the objects of the Act did not play as dominant a role in the reasons of the Full Court as in the reasons of Kiefel J, there seems little doubt that the objects of the Act as stated in the legislation constituted a set of substantive boundaries within which decisions are to be made and to the achievement of which decisions are directed. Thus the decision of the Full Court - just as the decision of Kiefel J - has "ensured that the Minister was in the long run more likely than not able to achieve the objects of the Environment Protection and Biodiversity Conservation Act 1999."