Mirboo Ridge v Minister for Resources - [2018] VSC 557

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2016 001288

MIRBOO RIDGE PTY LTD (ACN 060 663 934) AND OTHERS	Plaintiffs
v
MINISTER FOR RESOURCES	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 & 15 March 2018
DATE OF JUDGMENT:	21 September 2018
CASE MAY BE CITED AS:	Mirboo Ridge & Ors v Minister for Resources
MEDIUM NEUTRAL CITATION:	[2018] VSC 557

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STATUTORY INTERPRETATION — Construction — Reconciliation of conflicting provisions — Amendments to Petroleum Act 1998 introduced by enactment of Resources Legislation Amendment (Fracking Ban) Act 2017 — Provision creating statutory moratorium to prohibit onshore petroleum activities — Plaintiff resource companies holders of existing authorities to carry out activities prohibited by moratorium — Provision that moratorium does not affect existing requirements or obligations under the conditions of existing authorities — Meaning of ‘requirement’ and ‘obligation’ — Whether provision creating moratorium should be read down — Whether resource companies are permitted to conduct any onshore petroleum activities during the moratorium — Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 applied — Declaratory relief refused.

ADMINISTRATIVE LAW — Wednesbury unreasonableness — Whether purported variations to permits by Minister invalid — Minister given broad discretionary power under s 102 of the Petroleum Act 1998 to vary conditions of permits issued — Purported variations required permit holders to carry out work at future, unspecified time at which time the permit would not authorise the work — Purported variation contains obligation to carry out work illegal under the conditions of permit — Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332, considered — Order made quashing variations.

ADMINISTRATIVE LAW — Implementation of executive policy — Non-statutory moratorium prohibiting onshore petroleum activities — Whether alleged decisions made by the Minister in an administrative capacity to implement the moratorium until March 2017 were unlawful ― Discretionary nature of declaratory relief ― Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 considered ― Declaratory relief refused on the basis relief lacked utility.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Sullivan QC with Mr S Free	Piper Alderman
For the Defendant	Mr P Gray QC with Ms C van Proctor	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

Implementation of executive policy (or non-statutory moratorium).................................... 5
Legislative amendment (statutory moratorium)...................................................................... 6
December 2017 variations............................................................................................................ 8
Issues............................................................................................................................................. 10

The statutory scheme....................................................................................................................... 12

Purpose and objectives.............................................................................................................. 12
Authorities under the Act.......................................................................................................... 13
Exploration permit, work program and key objects............................................................. 13
Retention lease............................................................................................................................ 14
Production licence...................................................................................................................... 15
Conditions.................................................................................................................................... 15
Variation, suspension, extension and cancellation................................................................ 16
Section 138 consent..................................................................................................................... 16
Section 161 acceptance of operation plan................................................................................ 16

Proper construction of s 17A.......................................................................................................... 17

Text and structure....................................................................................................................... 19
Purpose and objects.................................................................................................................... 21
Right or requirement?................................................................................................................ 23
‘Subject to’.................................................................................................................................... 24
Taking away and giving back?................................................................................................. 29
Sections 251A and 251B..............................................................................................................…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 557
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the matter of Mirboo Ridge and others versus the Minister for Resources, the plaintiffs, resource companies with existing authorities to conduct onshore petroleum activities, challenged the legality of statutory amendments introduced by the Resources Legislation Amendment (Fracking Ban) Act 2017. The plaintiffs sought a declaration that the moratorium created by the amendments was unlawful and that they were entitled to conduct their activities during the moratorium period. The Federal Court of Australia was tasked with interpreting the statutory provisions and determining the validity of the Minister's actions.

The court had to decide whether the statutory moratorium could be reconciled with the existing authorities held by the plaintiffs, specifically examining the meaning of ‘requirement’ and ‘obligation’ under the Petroleum Act 1998. The court also needed to assess whether the moratorium provision should be read down to avoid conflict with existing authorities, and if the plaintiffs were permitted to conduct onshore petroleum activities during the moratorium. Additionally, the court considered whether the Minister's purported variations to the permits were lawful under the broad discretionary power conferred by section 102 of the Petroleum Act 1998, and if these variations were Wednesbury unreasonable.

The court concluded that the moratorium provision should not be read down and that the plaintiffs were not permitted to conduct onshore petroleum activities during the moratorium. The court held that the term ‘requirement’ and ‘obligation’ in the Petroleum Act 1998 did not include the condition that the moratorium did not affect existing authorities. Regarding the variations, the court found them to be Wednesbury unreasonable as they required the permit holders to carry out work at an unspecified future time when the permit would not authorise such work. The court quashed the variations. Furthermore, the court refused to declare the Minister's decisions to implement the moratorium until March 2017 unlawful, finding that declaratory relief lacked utility.

The court's final orders were that the moratorium created by the Resources Legislation Amendment (Fracking Ban) Act 2017 was lawful, the plaintiffs were not permitted to conduct onshore petroleum activities during the moratorium, and the purported variations to the permits were quashed. The court also refused to make a declaration regarding the Minister's decisions to implement the moratorium.

Orders