Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1

FEDERAL COURT OF AUSTRALIA

Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1 Citation: Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1

Parties: SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT (VIC) v MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES (CTH)

File number: VID 180 of 2012

Judge: KENNY J

Date of judgment: 4 January 2013

Catchwords: ADMINISTRATIVE LAW — Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister erred in considering material not included in referral — meaning of "on the basis of the information in the referral" — Consideration of text, purpose and context of provision — Information in referral is the foundation for the decision — Minister not restricted from taking into account his and his Department's knowledge in scrutinising a referral — No error — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c), (d), (f). ADMINISTRATIVE LAW — Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister erred in failing to provide opportunity to comment on materials considered — Provisional nature of s 74B decision — Where procedural fairness is provided by s 74D reconsideration process — No error — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), (c). ADMINISTRATIVE LAW — Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister failed to exercise two separate discretions — Statutory interpretation of s 74B(1) — Where context of provision supports only one discretion — No separate requirement to consider whether Division 1A of Part 7 should apply once satisfied of clear unacceptable impacts— No error — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c), (d), (f). ADMINISTRATIVE LAW — Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister erred by relying on National Heritage values not protected by art 8 of the Biodiversity Convention — Where primary and independent basis for decision was clear unacceptable impacts on ecology and species diversity in a National Heritage place — Where Minister also considered unacceptable impacts on recreational value and aesthetic characteristics of the National Heritage place — No error — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c), (d), (f) — Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 10.01A(2). STATUTORY INTERPRETATION — Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Meaning of "matter protected by a provision of Part 3" — Where action regulated by ss 15B(5) and 15C(9)–(10) — Minister not required to apply ss 15B(6) or 15C(14) proportionality test in decision-making under s 74B(1) — Minister could consider impacts on any National Heritage values of the National Heritage place — Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 15B, 15C, 34, 74B, 528.