Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 21 September 2022
• Neutral Citation: [2022] FCA 1121
• Date: 21 September 2022

Federal Court of Australia

Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121

File number:	VID 306 of 2022
Judgment of:	BROMBERG J
Date of judgment:	21 September 2022
Catchwords:	ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – s 39B of the Judiciary Act 1903 (Cth) – judicial review of decision of Regulator to accept an environment plan under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) – where a precondition of the valid acceptance of the environment plan is that the Regulator be reasonably satisfied that the plan meets the criteria specified in the Regulations including the criteria requiring the proponent of the plan to consult with each person whose functions, interests or activities may be affected by the activities to be conducted pursuant to the environment plan (“relevant persons”) – where applicant claims that he and other traditional owners of the Tiwi Islands were relevant persons and not consulted – whether the Regulator was lawfully satisfied that the environment plan met the criteria specified in the Regulations – applicable principles as to reasonable satisfaction as a jurisdictional precondition discussed – whether the Regulator performed the task it was required by the Regulations to perform of considering whether the environment plan demonstrated that each relevant person was consulted as required by the Regulations – whether insufficient information before the Regulator to have enabled the performance of that task – whether in the purported performance of that task the Regulator failed to consider material it was bound to consider – whether non-compliance, as an objective fact, with the consultation criteria in the Regulations could engage s 5(1)(b) of the ADJR Act or constitute a mistake of fact by the Regulator – principles relating to the admissibility of evidence on a judicial review application discussed – Regulator’s decision set aside
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth) Judiciary Act 1903 (Cth) Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) Offshore Petroleum and Greenhouse Gas Storage (Environment) Amendment (Consultation and Transparency) Regulations 2019 (Cth)
Cases cited:	Australian Workers’ Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671; 168 ALD 11 BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532 BPV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 157 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 Ellis v Central Land Council (2019) 267 FCR 339 Goldie v Commonwealth (2002) 117 FCR 566 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 Holmes v Deputy Commissioner of Taxation (NSW) (No 2) (1988) 16 ALD 51 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 Mackenzie v Head, Transport for Victoria and Minister for Planning [2021] VSCA 100 Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union and Another (2018) 262 FCR 527 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority [2022] FCA 838
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	292
Date of hearing:	22-26 August 2022
Counsel for the Applicant:	C Harris KC with R White and N Baum
Solicitor for the Applicant:	Environmental Defenders Office
Counsel for the First Respondent:	N Wood SC with F Gordon
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	S Free SC with G Del Villar KC and A Sharpe
Solicitor for the Second Respondent:	Allens

ORDERS

		VID 306 of 2022
BETWEEN:	DENNIS MURPHY TIPAKALIPPA Applicant
AND:	NATIONAL OFFSHORE PETROLEUM SAFETY AND ENVIRONMENTAL MANAGEMENT AUTHORITY First Respondent ; SANTOS NA BAROSSA PTY LTD (ACN 109 974 932) Second Respondent

order made by:	BROMBERG J
DATE OF ORDER:	21 September 2022

THE COURT ORDERS THAT:

1. The decision made by the First Respondent on 14 March 2022 pursuant to reg 10(1)(a) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to accept the Barossa Development Drilling and Completions Environment Plan (Document No: BAD-200-0003 Revision 3, dated 11 February 2022) is set aside.

2. On the basis that on or before 5 pm on 22 September 2022 the Second Respondent extends to 6 October 2022 the undertaking provided to the Court and referred to at [19] and [20] of the Court’s Reasons for Judgment, order 1 shall not take effect until 6 October 2022.

3. Costs are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

INTRODUCTION	[1]
LEGISLATIVE/REGULATORY FRAMEWORK & APPLICABLE PRINCIPLES	[21]
The ADJR Act, the Judiciary Act and the Relief Claimed	[22]
The Act and the Regulations	[29]
The Key Events in the Assessment Process of the Drilling EP	[54]
Reasonable Satisfaction as a Jurisdictional Precondition – Applicable Principles	[65]
The Relevant Regulatory Tasks	[79]
THE DRILLING EP	[90]
Overview of the Drilling EP	[90]
The...