Local Democracy Matters Incorporated v Infrastructure NSW (No 3)

Local Democracy Matters Incorporated brought an application against Infrastructure NSW in the Federal Court of Australia, challenging the constitutional validity of the Infrastructure Sustainability and Assessment Act 2018 (NSW). The Applicant argued that the Act improperly delegated the power to determine sustainability assessment to Infrastructure NSW, contrary to the Constitution. They further contended that the Act was inconsistent with the Commonwealth's power to regulate interstate and foreign trade and commerce. The case arose from the Applicant's concern that the Act allowed Infrastructure NSW to make decisions on significant infrastructure projects, potentially bypassing local government scrutiny and participation.

The primary legal issue before the Court was whether the NSW Act unconstitutionally delegated legislative power to Infrastructure NSW. The Court also had to determine whether the Act was valid under the Commonwealth's powers, specifically the corporations power and the trade and commerce power. The Applicant contended that the Act contravened the separation of powers doctrine by improperly delegating legislative functions to Infrastructure NSW. Additionally, they argued that the Act was inconsistent with the Commonwealth's power to regulate interstate and foreign trade and commerce, as it affected projects with interstate and foreign implications.

The Court dismissed the Applicant's notice of motion, holding that the NSW Act did not unconstitutionally delegate legislative power to Infrastructure NSW. The Court found that the Act was a valid exercise of the NSW Parliament's legislative power and did not infringe upon the Commonwealth's powers. The Court concluded that the Act was consistent with the Commonwealth Constitution, as it did not improperly delegate legislative functions or contravene the Commonwealth's powers. The Court reserved costs and listed the matter for further mention.