Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873

Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873

The Delegate failed to comply with the obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making the s 75 decision, as she did not actively consider whether threats of serious or irreversible environmental damage to the Tasmanian Masked Owl existed, nor did she genuinely engage with the first condition precedent required for the application of the principle.

Parties
Applicant: Bob Brown Foundation Inc; First Respondent: Minister for the Environment; Second Respondent: MMG Australia Limited
Jurisdiction
Australia
Judgment Date
25 July 2022
Procedural Posture
Judicial Review Application / Judgment on Substantive Application
Outcome
Application succeeds on ground 1; matter to be listed for mention for submissions as to appropriate orders.
Legal Topics
Judicial Review, Precautionary Principle, Threatened Species, Controlled Action Decision, Environmental Impact
Administrative Law Environmental Law Human Rights Judicial Review Precautionary Principle Threatened Species Controlled Action Decision Environmental Impact

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Parties

Bob Brown Foundation Inc

Applicant

Minister for the Environment

First Respondent

MMG Australia Limited

Second Respondent

Procedural Posture

Judicial Review Application / Judgment on Substantive Application

Legal Issues

  1. 1 Whether the delegate failed to comply with the obligation to take account of the precautionary principle under s 391(1) of the EPBC Act in making the controlled action decision
  2. 2 Whether the delegate failed to consider the first condition precedent to the application of the precautionary principle

Ratio Decidendi

The Delegate failed to comply with the obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making the s 75 decision, as she did not actively consider whether threats of serious or irreversible environmental damage to the Tasmanian Masked Owl existed, nor did she genuinely engage with the first condition precedent required for the application of the principle.

Court Disposition

Application succeeds on ground 1; matter to be listed for mention for submissions as to appropriate orders.

Orders

  • The matter be listed for mention on a date to be fixed.