Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175

Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175

Withdrawal of an earlier referral under s 170C(4) does not preclude a further referral for the same action. The Minister was correct in excluding consideration of adverse impacts of RFA forestry operations under s 75(2B), as they were not 'incidental' within the meaning required for s 42(c) to apply. The public comment period of 20 business days was not unreasonably short in the statutory context and did not deny procedural fairness. No improper purpose was established in the Minister's decisions. The appeal was therefore dismissed.

Parties
Appellant: The Wilderness Society Inc; First Respondent: Hon Malcolm Turnbull, Minister for the Environment and Water Resources; Second Respondent: Gunns Limited
Jurisdiction
Australia
Judgment Date
22 November 2007
Procedural Posture
Appeal / On Appeal From a Judge of the Federal Court of Australia
Outcome
Appeal dismissed (by majority)
Legal Topics
Environment Protection and Biodiversity Conservation Act 1999 (cth), Judicial Review of Ministerial Decisions, Interpretation of Powers to Refer, Withdraw, And Assess Actions Under Environmental Law, Procedural Fairness in Public Comment Periods, Regional Forest Agreements and Exemptions Under the EPBC Act
Administrative Law Environmental Law Statutory Interpretation Environment Protection and Biodiversity Conservation Act 1999 (cth) Judicial Review of Ministerial Decisions Interpretation of Powers to Refer, Withdraw, and Assess Actions Under Environmental Law Procedural Fairness in Public Comment Periods Regional Forest Agreements and Exemptions Under the EPBC Act

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Parties

The Wilderness Society Inc

Appellant

Hon Malcolm Turnbull, Minister for the Environment and Water Resources

First Respondent

Gunns Limited

Second Respondent

Procedural Posture

Appeal / On Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether s 170C(4) of the EPBC Act precludes a further referral after withdrawal of an earlier referral for the same action
  2. 2 Whether the Minister misconstrued ss 75(2B) and 42(c) of the EPBC Act by not considering adverse impacts of RFA forestry operations in the decision-making process
  3. 3 Whether procedural fairness was denied due to a 20 business day period for public comment under s 95(2)(c)

Ratio Decidendi

Withdrawal of an earlier referral under s 170C(4) does not preclude a further referral for the same action. The Minister was correct in excluding consideration of adverse impacts of RFA forestry operations under s 75(2B), as they were not 'incidental' within the meaning required for s 42(c) to apply. The public comment period of 20 business days was not unreasonably short in the statutory context and did not deny procedural fairness. No improper purpose was established in the Minister's decisions. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed (by majority)

Orders

  • The appeal be dismissed.