Commonwealth of Australia (As Represented BY the Department of Infrastructure and Regional Development) v Kenney (No.2)

The Commonwealth of Australia, represented by the Department of Infrastructure and Regional Development, brought proceedings against Mr. Kenney in the Federal Court of Australia. The dispute concerned the validity of a decision made by the Minister for Infrastructure and Regional Development to refuse to grant a permit under the *Environment Protection and Biodiversity Conservation Act 1999* (Cth) (EPBC Act) for the construction of a residential development. Mr. Kenney sought judicial review of this decision.

The primary legal issue before the Court was whether the Minister's decision to refuse the permit was vitiated by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to take into account a relevant consideration or had taken into account an irrelevant consideration when making the decision, thereby exceeding or misconstruing the power conferred upon him by the EPBC Act.

Smith J found that the Minister had indeed committed a jurisdictional error. The Court reasoned that the Minister's decision had been influenced by a consideration that was not a relevant consideration under the EPBC Act, namely, the potential impact of the development on the reputation of the Commonwealth. The Court held that the EPBC Act requires the Minister to consider specific environmental matters and that the Minister's focus on reputational concerns, rather than the prescribed environmental criteria, meant that the decision was not made in accordance with the statutory requirements.

Consequently, Smith J made orders quashing the Minister's decision to refuse the permit and remitted the matter to the Minister for reconsideration according to law.