In the recent decision of Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139, the Full Federal Court provides an updated consideration of the application of the precautionary principle under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The precautionary principle is a principle of ecologically sustainable development, defined in s 3A (and, in similar terms, in s 391) of the EPBC Act as follows:

If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Applying the principle to NSW environmental laws, Chief Justice Preston of the NSW Land and Environment Court has explained that the precautionary principle only applies if two pre-conditions are satisfied:

1. a threat of serious or irreversible environmental damage

2. scientific uncertainty as to the environmental damage.^[1]

The joint judgment of Jackson and Kennett JJ in Friends v Minister for the Environment and Water suggest that a third condition should be added to this list – namely:

3. that the decision in question be the ‘postponement’ of measures to prevent environmental degradation.

Background

Friends v Minister for the Environment and Water concerned an appeal of judicial review proceedings, challenging the EPBC Act approval for the construction of the Bunbury Outer Ring Road in Western Australia.

The project proposed works to approximately 300ha, roughly one third of which comprised native vegetation. Construction of the ring road was considered likely to impact on a number of listed species and threatened ecological communities protected under the EPBC Act. Approval was granted for the project under s 133 of the Act, subject to conditions.

The statement of reasons for the approval decision stated that the decision-maker:

• accepted that the precautionary principle applied to one of the protected species (there being a lack of certainty as to the projected effects on that species)
• took the principle into account in deciding to approve the action and impose the relevant conditions.

The approval decision was challenged by Friends of the Gelorup Corridor Inc, on grounds including that, by applying the precautionary principle only to one of the protected species, the decision-maker failed to properly consider the precautionary principle as required by the EPBC Act. The proceedings were dismissed at first instance and again on appeal to the Full Federal Court. While all three Justices agreed that the proceedings should be dismissed, the joint judgment of Jackson and Kennett JJ apply a restrictive interpretation of the precautionary principle, which departs from the common use and application of that principle.

The precautionary principle in the EPBC Act

The EPBC Act requires consideration of the precautionary principle when determining whether to grant an approval under s 133 by two means:

1. specifically requiring that the decision-maker “take into account” the principles of ecologically sustainable development (which includes the precautionary principle) when considering the mandatory considerations that apply to decisions of whether or not to approve the taking of an action, and what conditions to attach to an approval (see s 136(2))
2. more generally requiring that the decision-maker “take account of” the precautionary principle when making specified decisions under the EPBC Act, which relevantly includes a decision of whether or not to approve the taking of an action under s 133 of the Act (see s 391).

Findings of the Federal Court

The joint judgment delivered by Jackson and Kennett JJ applies a literal approach in interpreting ss 136(2) and 391 of the Act, focusing on:

1. what it means to “take account of” and “take into account” the precautionary principle
2. the relevance of the words in the principle: “postponing a measure to prevent degradation of the environment”.

In this context, Jackson and Kennett JJ made the following findings:

• The precautionary principle is not a mandatory relevant consideration or factor (in itself) that is to be weighed up by the decision-maker against other relevant considerations. Rather, it is an evidentiary principle or approach to decision-making which concerns how the evidence presented to a decision-maker is to be acted on.

• The precautionary principle technically has no direct application to a decision as to whether to approve the taking of an action and what conditions to attach to an approval. This is because a decision to grant or refuse an approval, or a decision to impose or not impose a particular condition, would not “postpone” a measure to prevent environmental degradation.

• This means that a decision-maker does not need to consider, as a separate step, whether the precautionary principle applies to each protected matter (i.e. whether there is a threat of serious and irreversible damage and a lack of full scientific certainty as to that damage).

• Rather, the obligation to “take account of” and “take into account” the principle requires that the decision-maker is “aware of the precautionary principle and mindful of its place in the statutory scheme.” This includes weighing up the impacts of a proposed action “consistently with the value embodied in the precautionary principle”.

• In this instance, it was sufficient that the decision-maker had noted in the statement of reasons that they had taken the precautionary principle into account. The application of the principle to one of the species demonstrated that the decision-maker appreciated “the need to keep the principle in mind and reason consistently with it”. However, an analysis of the specific application of the principle for each protected matter was not required by the EPBC Act.

While Feutrill J also dismissed the appeal, His Honour takes a more conventional approach to the precautionary principle. In particular:

• Noting that while there is an “inelegance” in the application of the principle to a decision of whether or not to approve an action, there is “no real difficulty” in its application.

• Where the preconditions to the precautionary principle are met (i.e. where there is a threat of serious and irreversible damage and a lack of full scientific certainty as to that damage), then the application of the principle requires that:
  • the serious or irreversible damage, in relation to which there is scientific uncertainty, be treated as if it is certain
  • the certain damage be taken into account as a factor informing any precautionary measures required to avoid or mitigate that damage.

• A decision refusing to grant an approval could be characterised as a measure to prevent degradation of the environment. Although the precautionary principle does not necessarily require that a proposal which leads to environmental damage must be refused in every instance, refusal of an application could result from the application of the principle.

• Whether a general statement in a decision stating that the precautionary principle has been taken into account would be sufficient for the purposes of the EPBC Act would depend on the circumstances.

The future of the precautionary principle

The restrictive, literal approach applied by Jackson and Kennett JJ departs from the common use and application of the precautionary principle, including the approach in the significant impact guidelines published by the Department of Climate Change, Energy and the Environment and Water.

It also differs from the approach of the NSW Land and Environment Court, which has often applied the precautionary principle in the determination of development applications without regard as to whether the grant or refusal of a development consent would technically result in the “postponing” of a measure to prevent environmental degradation.

Following the review of the EPBC Act carried out by Professor Samuel in 2020, the Commonwealth has committed to reforming the Act, including the establishment of National Environmental Standards to frame decision-making under the Act. It may be that the application of the precautionary principle changes again with these reforms. In the interim, it will be interesting to see whether this decision is picked up by other Courts, and whether it will impact on the application of the precautionary principle in other environmental legislation.