Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550

Federal Court of Australia

Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550 File number(s): NSD 293 of 2020

Judgment of: PERRY J

Date of judgment: 25 May 2021

Catchwords: ADMINISTRATIVE LAW – statutory construction – application for judicial review – where proposed action for construction of and operation of infrastructure to harvest and supply water to a coal mine by a different but related company – where proposed action intended to provide an alternative source of water from that approved in the initial proposal for the construction and operation of the coal mine – where the delegate of the Minister for the Environment decided under s 75(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) that ss 24D and 24E (the water trigger controlling provisions) were not controlling provisions for the proposed action (the controlled action decision) – whether the delegate erred in construing the phrase involves large coal mining development in ss 24D and 24E and definition of "large coal mining development" in s 528 as encompassing only an activity which forms part of the process of extracting coal from a mine – where so-called definition enacts substantive criteria – whether delegate's construction supported by the penal nature of the controlling provisions – where contrary to the delegate's construction an action will involve a large coal mining development if the action is so closely associated with the mining of coal as to be integral to it – application for judicial review granted – controlled action decision to be remitted to the Minister for determination according to law

Legislation: Acts Interpretation Act 1901 (Cth) ss 13(1), 15AA, 15AB Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 7, 18, 18A, 24D, 24E, 69–73, 74, 74A, 75, 76, 87, 133, 143, 170A, 304–306, 391, 505C, 527E, 528, Pt 3, Div 1, Pt 19, Div 2B Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 (Cth) Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth) Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Water Act 2007 (Cth) s 4(1) Interpretation Act 1987 (NSW) s 33 Water Act 2000 (Qld) Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2013 (Tony Burke)