Bob Brown Foundation Inc v Commonwealth of Australia

The Bob Brown Foundation Inc sought a declaration that the Tasmanian Regional Forest Agreement (RFA) was not properly characterised as an RFA for the purposes of the Regional Forest Agreements Act 2002 (Cth) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Commonwealth of Australia opposed the application, arguing that the Tasmanian RFA was properly characterised as an RFA. The Full Court of the Federal Court of Australia was required to determine whether the Tasmanian RFA was properly characterised as an RFA for the purposes of the RFA Act and the EPBC Act. The Court held that the deletion of clause 65, and the insertion of clauses 71A-73, did not effect any material change to Tasmania’s commitment to “provide for” an ESFM and a CAR Reserve System such that the Tasmanian RFA cannot meet the definition of the RFA for the purposes of the RFA Act. The Court concluded that the separate question must be answered “yes” and dismissed the applicant’s application for declaratory relief. The Court also ordered that the parties file and serve submissions on the question of costs of the hearing and determination of the separate question, unless agreement was reached between the parties. The Court emphasised that it was for the primary judge to determine the further conduct of the substantive proceeding.