Bob Brown Foundation Inc v Minister for the Environment (No 2)

The Bob Brown Foundation Inc sought judicial review of a decision made by a delegate of the Minister for the Environment, challenging the validity of the delegate's determination that a proposed action was not a "controlled action" under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Foundation argued that the delegate failed to properly consider the precautionary principle as required by section 391 of the EPBC Act, and that the decision was thus invalid. The Foundation further contended that the delegate's decision did not require specific measures to be taken to protect the Tasmanian Masked Owl, despite the acknowledged gaps in the information available regarding this species.

The primary legal issue before the court was whether the delegate properly applied the precautionary principle when determining that the proposed action was not a controlled action. The Foundation argued that the delegate did not genuinely engage with the precautionary principle as mandated by section 391(2) of the EPBC Act, and that the decision was thus flawed. The delegate, on the other hand, maintained that the decision was made in accordance with the requirements of the EPBC Act, and that the precautionary principle had been properly considered.

In its judgment, the court found that the delegate's decision did not adequately address the precautionary principle as required by section 391(1) of the EPBC Act. The court held that the delegate's decision was not supported by the proper consideration of the components of the precautionary principle, including the potential for serious or irreversible environmental damage. The court found that the delegate had not exercised the required caution when concluding that the proposed action would not significantly impact the Tasmanian Masked Owl, and that the decision was therefore invalid.

The court ordered that the matter be listed for mention on a date to be fixed. This decision underscores the importance of rigorous application of the precautionary principle in environmental decision-making, and the necessity for decision-makers to thoroughly consider all relevant factors when determining whether an action is a controlled action under the EPBC Act.