The Environment Centre NT Inc v Minister for Resources and Water (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 December 2021
• Neutral Citation: [2021] FCA 1635
• Court: Federal Court
• Date: 23 December 2021

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
Legislation:	Constitution s 61 Administrative Decisions (Judicial Review) Act 1977 (Cth) Financial Framework Legislation Amendment Act 2008 (Cth) Financial Management and Accountability Act 1997 (Cth) s 44 Industry Research and Development Amendment (Innovation and Science Australia) Act 2016 (Cth) Industry, Research and Development Act 1986 (Cth) ss 33, 34 Judiciary Act 1903 (Cth) ss 39B, 55ZG Public Governance, Performance and Accountability Act 2013 (Cth) ss 8, 15, 50, 71, 105C Financial Management and Accountability Amendment Regulations 2010 (No 3) (Cth) Financial Management and Accountability Regulations 1997 (Cth) reg 9 Commonwealth Grants Rules and Guidelines 2017 cll 2.3, 2.4, 3.3, 3.11, 4.6, 4.10 ; Environment Protection Act 2019 (NT) Petroleum Act 1984 (NT) s 20 Petroleum (Environment) Regulations 2016 (NT)
Cases cited:	Athavle v State of New South Wales [2021] FCA 1075 Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 Auckland Harbour Board v R [1924] AC 318 Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; 202 FCR 200 Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; 166 CLR 454 Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 Barristers’ Board (WA) v Tranter Corporation Pty Ltd [1976] WAR 65 Bechara v Bates [2021] FCAFC 34; 338 ALR 414 Caporale v Deputy Commissioner of Taxation [2013] FCA 427; 212 FCR 220 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] 78 NSWCA 190; 78 NSWLR 393 Chattaway v Minister for Health and Ageing [2020] SASCFC 63; 136 SASR 347 City of Brunswick v Stewart [1941] HCA 7; 65 CLR 88 Clements v Bull [1953] HCA 61; 88 CLR 572 Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) [2010] FCA 1224; 190 FCR 11 Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1 Elston v Commonwealth [2014] FCA 704 EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 Ilic v City of Adelaide [2010] SASC 139; 107 SASR 139 Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 Kingston v Australian Capital Territory [2011] ACTSC 165 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 386; 276 FCR 388 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 Plaintiff M96A v Commonwealth [2017] HCA 16; 261 CLR 582 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Scott v Handley [1999] FCA 404; 58 ALD 373 Sealed Air Australia Pty Ltd v Aus-lid Enterprises Pty Ltd [2020] FCA 29; 375 ALR 324 Secretary, Department of Social Services v Cassaniti (No 2) ...