The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178

FEDERAL COURT OF AUSTRALIA

The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178

SUMMARY

THE WILDERNESS SOCIETY INC. v THE HON. MALCOLM TURNBULL, MINISTER FOR THE ENVIRONMENT AND WATER RESOURCES AND GUNNS LIMITED TAD 15 OF 2007

MARSHALL J

9 AUGUST 2007

hobart 1 In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the Court's reasons for judgment published today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's conclusions is contained in the reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au. This summary will also be available on the internet. 2 This proceeding involves an application by The Wilderness Society Inc. (The Wilderness Society) made under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review two decisions made by the Commonwealth Minister for the Environment and Water Resources (Minister). The two decisions were made by the Minister during the assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) of a proposed action, being the proposal by Gunns Limited to construct and operate a pulp mill at Bell Bay in Tasmania. The first decision was to designate the action as a controlled action subject to certain controlling provisions. The second decision was that the relevant impacts of the proposed action be assessed on preliminary documentation under Division 4 of Part 8 of the EPBC Act. This proceeding does not involve any judgment by the Court on whether it is appropriate or not that a pulp mill be constructed at Bell Bay. 3 The Wilderness Society made the following allegations: · there is no valid referral of the proposal to support either decision; · in making the first decision, the Minister misconstrued s 75(2B) of the EPBC Act, failed to take into account a relevant consideration, being the potential adverse impact on matters of national environmental significance of sourcing timber from Tasmanian forests to supply the pulp mill, or took into account an irrelevant consideration; · in making the first decision, the Minister failed to consider whether the pulp mill would have or is likely to have a significant impact on the environment on Commonwealth land and thereby failed to take into account a relevant consideration; · the Minister misconstrued and/or misapplied s 87(5) of the EPBC Act in making the second decision; · in making the second decision, the Minister denied The Wilderness Society, and other members of the public interested in the assessment of the proposed action, procedural fairness; · the second decision is invalid because it is affected by apprehended bias in the Minister; · the second decision involved an improper exercise of power by the Minister; and · the second decision was manifestly unreasonable. 4 The hearing was expedited and took place on five days in Hobart. Proceeding TAD 17 of 2007, in which a substantially overlapping set of allegations was made by The Investors for the Future of Tasmania Inc., was heard at the same time. Judgment in that proceeding will be delivered immediately after the judgment in this proceeding. 5 The Court has rejected all grounds of review raised by The Wilderness Society. It will make a formal order dismissing the application. The question of costs is reserved and will be dealt with by written submissions.