The Environment Centre NT Inc v Minister for Resources and Water (No 2) [2021] FCA 1635

FEDERAL COURT OF AUSTRALIA

The Environment Centre NT Inc v Minister for Resources and Water (No 2) [2021] FCA 1635 File number: NSD 758 of 2021

Judgment of: GRIFFITHS J

Date of judgment: 23 December 2021

Catchwords: ADMINISTRATIVE LAW – judicial review challenge to legislative instrument and decisions arising from the Beetaloo Strategic Basin Plan – decision to prescribe the Beetaloo Cooperative Drilling Program by statutory instrument for the purposes of s 33(1) of the Industry, Research and Development Act 1986 (Cth) (IRD Act) (the Instrument) – where Program provides for up to $50 million in funding for gas exploration activities in Beetaloo sub-basin – decision by Minister to approve approximately $21 million in funding under the Program to third respondent (Approval Decision) – whether the phrase "after making reasonable inquiries" in s 71 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) is an objective jurisdictional pre-condition before making the Instrument or Approval Decision – whether Minister required to make reasonable inquiries into climate change and related risks arising from gas exploration and production – where Minister did not make inquiries into climate change or related risks – whether Minister contravened the Commonwealth Grants Rules and Guidelines 2017 in making Instrument or Approval Decision ADMINISTRATIVE LAW – whether Instrument or Approval Decision legally unreasonable – where Minister did not make inquiries into climate change and related risks – consideration of higher threshold of legal unreasonableness for delegated legislation – Instrument not legally unreasonable in appropriate legal sense – whether Approval Decision exercise of statutory or non-statutory power – Approval Decision amenable to judicial review for legal unreasonableness whether statutory or non-statutory power exercised – held: no legal unreasonableness ADMINISTRATIVE LAW – two alleged factual errors in Department's Brief to Minister before Approval Decision – held: no jurisdictional error ADMINISTRATIVE LAW – challenge to Commonwealth's decision to enter into three contracts with third respondent on 9 September 2021 (Contracts Decision) on grounds of legal unreasonableness, irrationality or illogicality – consideration of outcome-focussed unreasonableness where no reasons for decision available – where no evident and intelligible justification for timing of Contracts Decision in context of the current proceedings and correspondence between the parties – where Commonwealth did not adduce any evidence at final hearing as to the timing of the Contracts Decision – whether Court can take into account affidavit filed at interlocutory stage but not read – consideration of common law model litigant obligations – where the Commonwealth accepted that entering into the contracts with no prior notice to the applicant in the context of the proceedings and correspondence was in breach of common law model obligations – where Commonwealth accepted that its conduct denied the applicant an opportunity to seek interlocutory injunctive relief – breach of common law model litigant obligations relevant to legal unreasonableness –whether Court should refuse relief in exercise of its discretion – held: timing of Contracts Decision legally unreasonable – declaratory relief granted and Contracts Decision set aside