In this alert, Partner Sarah Macoun and Law Clerk Leia Brook discuss the case of Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 in relation to a judicial review of a decision that a delegate to the Minister for the Environment made earlier this year.

Overview

  • Focused on the application of the precautionary principle and the basis of consideration for the decision-maker
  • Justice Moshinsky found the Delegate failed to consider this principle

Background

The above proceeding concerned an application to the Court seeking judicial review of a decision that a delegate (the Delegate) to the Minister for the Environment (the Minister) made on 6 January 2022.

The Delegate found that certain design and assessment works, including geotechnical works and investigation activities, proposed to be undertaken by MMG Australia Limited (MMG) to inform a planned tailings storage facility at South Marionoak in western Tasmania, did not constitute a “controlled action” for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) (the Decision).

The Delegate decided the proposed action was not a controlled action provided it was undertaken in the manner set out in the Decision, made under ss 75 and 77A of the EPBC Act. The notification of the Decision set out measures to be taken to avoid significant impacts on listed threatened species and ecological communities.

Of significance was that the Decision did not require any specific measures to be taken to protect the Tasmanian Masked Owl, which is listed as a threatened species under the EPBC Act, despite consultants engaged by MMG recommending certain measures be adopted.

The statement of reasons for the Decision dated 7 February identified that the Delegate did consider the Tasmanian Masked Owl, but concluded that, as the scale of the clearing and wide area across which the impacts are distributed, the large home range of this species, and surrounding available habitat, the vegetation clearance proposed was unlikely to cause a decrease in the size, or reduce the area of occupancy of the local population. Therefore, a significant impact as a result of disturbance to an active breeding hollow was unlikely.

Issues

The applicant applied to the Court for review of the Decision, relying on three grounds of review. Justice Moshinsky concluded that ground 1 was established, and grounds 2 and 3 were dismissed.

Ground 1 is as follows: “In making the Decision, the Delegate:

  1. made a decision that was not authorised by the EPBC Act;
  2. failed to take a relevant consideration into account in the exercise of the power; and/or
  3. erred in law, in that she failed to comply with her obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making her decision under s 75 of the EPBC Act (ground 1).”

Under s 391(1), the decision-maker has a mandatory obligation to consider the precautionary principle in making a decision. The subsequent need to take precautionary measures is triggered by the cumulative satisfaction of two conditions precedent. First, requiring a threat of serious or irreversible environment damage and secondly, a requirement of scientific uncertainty as to the environmental damage. His Honour referred heavily to the detailed consideration of the precautionary principle in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 (‘Telstra’). If both conditions precedents are satisfied, the precautionary principle will be triggered.

His Honour held the requirement in s 391(1) of the EPBC Act that the Minister “take account” of the precautionary principle in making a decision was interchangeable with a requirement to “consider” a particular matter. This requires the decision-maker to consider, at least, with active intellectual processes, whether the first condition precedent is satisfied. If so, the decision-maker must necessarily consider whether the second precedent condition is satisfied.

Findings

Justice Moshinsky held it was apparent from the Statement of Reasons, that the Delegate did not comply with her obligations under s 391(1). To comply, the Delegate would have had to consider whether the first condition precedent was satisfied – she failed to do this. His Honour said:

“The Delegate did not expressly refer to the first condition precedent in the section of the reasons dealing with the Tasmanian Masked Owl. Nor did the Delegate make a finding in terms that correspond to the first condition precedent. While the Delegate, at [184], identified a number of “threats” to the Tasmanian Masked Owl (by reference to the Approved Conservation Advice), the Delegate did not go on to discuss, or make a finding as to, whether those threats, or the threats posed by the proposed action, were serious or irreversible. In the absence of any discussion or finding about this matter, I infer that the Delegate failed to consider it.”

His Honour concluded that ground 1 was made out.

Conclusion

The parties were given the opportunity to make submissions as to appropriate orders, having regard to the fact that a reconsideration process is currently underway.