Lansen v Minister for Environment and Heritage [2008] FCAFC 189

FEDERAL COURT OF AUSTRALIA

Lansen v Minister for Environment and Heritage [2008] FCAFC 189

ADMINISTRATIVE LAW – application for approval of "controlled action" under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – whether assessment of the proposal was properly made under a Bilateral Agreement between Commonwealth and Northern Territory when Bilateral Agreement came into force after decision of Minister that proposal was controlled action – whether assessment of proposal should have been made under Part 8 of EPBC Act – whether the primary judge was correct in holding that assessment of proposal was properly made under the Bilateral Agreement

ADMINISTRATIVE LAW – whether the pre-condition to the grant of approval under Part 9 of the EPBC Act is satisfied where the Minister receives a report that there is not enough information – whether the Minister received an assessment report as required by s 133 –whether the primary judge was correct in concluding there was an assessment report in existence within the meaning of s 133 of the EPBC Act

ADMINISTRATIVE LAW – whether the Minister breached s 134(4)(a) of the EPBC Act – whether any breach of s 134(4)(a) rendered the approval invalid - whether the primary judge erred in concluding that any breach of s 134(4)(a) did not render the Minister's decision invalid PRACTICE AND PROCEDURE – whether the appellants should be permitted to raise an issue not argued before the primary judge

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16 Judiciary Act 1903 (Cth)s 39B Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 11, 19,18A, 33, 47, 67, 75, 81, 83, 84, 87, 131, 132, 133, 134, 136, 143, 523, 528 Mining Management Act 2001 (NT) Environmental Assessment Act 1982 (NT)

Church of Scientology v Woodward (1982) 154 CLR 25 Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 Craig v State of South Australia (1995) 184 CLR 163 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 House v The King (1936) 55 CLR 499 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 Martincevic v The Commonwealth (2007) 164 FCR 45 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 Sutherland Shire Council v Finch (1970) 123 CLR 657 The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSW LR 55