FEDERAL COURT OF AUSTRALIA
Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421
File number: VID 907 of 2023 Judgment of: CHARLESWORTH J Date of judgment: 15 November 2023 Date of publication of reasons: 17 November 2023 Catchwords: PRACTICE AND PROCEDURE – application for injunction restraining works for the construction of a gas export pipeline – respondent a titleholder under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) – applicant alleging the respondent is in breach of an obligation under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) to prepare and submit a revised environment plan – whether a matter arises under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – whether the applicant has standing to apply for the final relief sought on the originating application – whether a regulation creating a legal duty enforceable at the suit of any person would be ultra vires the regulation-making powers of the statute – serious question to be tried as to the respondent’s obligation – balance of convenience favouring the applicant in some areas but not others – injunction granted in respect of some but not all of the area that may be affected by the pipeline Legislation: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3A
Judiciary Act 1903 (Cth) s 39B
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 571, 574, 576, 688C, 781, 790A, 790B, 790C, 790D
Regulatory Powers (Standard Provisions) Act 2014 (Cth)
Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) regs 3, 4, 6, 7, 8, 9, 10, 10A, 11A, 13, 17, 18, 21, 22, 23
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 399 ALR 214
Lucisano v Westpac Banking Corporation [2015] FCA 243
Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365
Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348
Onus v Alcoa of Australia Limited (1981) 149 CLR 27
Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 105 Date of hearing: 13 November 2023 Counsel for the Applicant: Ms K O’Gorman SC with Mr P Coleridge Solicitor for the Applicant: Environmental Defenders Office Counsel for the Respondent: Mr J Thomson SC with Ms V Whitaker SC, Mr J Waters SC, Mr N Landis, Ms H Lenigas and Mr L Nicholls Solicitor for the Respondent: Quinn Emanuel Urquhard & Sullivan ORDERS
VID 907 of 2023 BETWEEN: SIMON MUNKARA
Applicant
AND:
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- Case
- [2023] FCA 1421
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the matter arose under a law of the Commonwealth, thus conferring jurisdiction on the court under section 39B(1A)(c) of the Judiciary Act 1903 (Cth). Another issue was whether Munkara had standing to seek the final relief on the originating application. Furthermore, the court needed to determine if a regulation creating a legal duty enforceable at the suit of any person would be beyond the regulation-making powers of the statute. The court also had to consider whether there was a serious question to be tried regarding Santos's obligation and weigh the balance of convenience in favour of either party.
The court found that the regulation in question did indeed create an offence, which was significant to the proceeding. The court examined the criteria for the acceptance of an environment plan under the Regulations and noted the obligations of consultation imposed on the titleholder. It held that the matter arose under a law of the Commonwealth, thus conferring jurisdiction. The court determined that Munkara had standing to apply for the final relief sought, and it found that the regulation was within the regulation-making powers of the statute. The court also concluded that there was a serious question to be tried regarding Santos's obligation and found that the balance of convenience favoured Munkara in some areas but not in others.
Consequently, the court granted an injunction in respect of some but not all of the area that may be affected by the pipeline. The court revoked the previous injunction order and restrained the respondent from undertaking certain activities south of Kilometre Point 86 on the pipeline route until 15 January 2024 or an alternate date determined by the trial judge. The court also granted permission for members of the public to record the oral reasons given for the proceedings, to be used solely for the purpose of preparing a fair and accurate report of the proceedings.
Orders
Orders of the court
1. The order with injunction made on 2 November 2023, as varied on 13 November 2023, is revoked.
2. The respondent is restrained from undertaking any activity as described in the Barossa Gas Export Pipeline Installation Environment Plan (BAA-100 0329) (Revision 3, February 2020) in any place south of the point referred to in submissions as Kilometre Point (KP) 86 on the pipeline route, being the location situated at coordinates Latitude: 10° 31’ 31.9” S, Longitude: 130° 17’ 4.7” E, or alternatively described as Geocentric Datum of Australia 1994 (GDA 94), MGA Zone 52, being:
1. Easting: 640, 568
2. Northing: 8,836,194
3. The restraint in paragraph 2 is to remain in force until 15 January 2024, or such alternate date as the trial judge may determine.
4. Members of the public are granted permission to take a recording of the oral reasons given today, such recording to be used solely for the purpose of preparing a fair and accurate report of the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Regulation 8(1) creates an offence that assumes some significance in the proceeding. It provides:Operations must not continue if new or increased environmental risk identified (1) A titleholder commits an offence if: (a) the titleholder undertakes an activity after the occurrence of:(i)any significant new environmental impact or risk arising from the activity; or(ii)any significant increase in an existing environmental impact or risk arising from the activity; and(b)the new impact or risk, or increase in the impact or risk, is not provided for in the environment plan in force for the activity. The words “occurrence”, “significant”, “new” and “risk” are not defined. Division 2.2 of Pt 2 of the Regulations establishes a scheme for the submission and acceptance of environment plans. Before commencing an activity, the titleholder must submit an environment plan for the activity to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), defined as the “Regulator”: reg 9. The criteria for an environment plan are set out in reg 10A. It provides:Criteria for acceptance of environment planFor regulation 10, the criteria for acceptance of an environment plan are that the plan:(a)is appropriate for the nature and scale of the activity; and(b)demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and(c)demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and(d)provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and(e)includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and(f)does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and(g)demonstrates that:(i)the titleholder has carried out the consultations required by Division 2.2A; and(ii)the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and(h) complies with the Act and the regulations. The Regulations confer functions and powers on NOPSEMA with respect to an environment plan submitted to it, including obligations of publication and a discretion to request the provision of further information. Regulation 10 relevantly provides that if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, the Regulator must accept the plan. If not reasonably satisfied, it must provide the titleholder with an opportunity to resubmit the environment plan, and then accept the resubmitted plan if satisfied that the criteria in reg 10A are fulfilled in respect of it. For the purposes of reg 10A(g)(i), reg 11A imposes obligations of consultation on a titleholder in respect of the preparation of an environment plan, and those obligations extend to the preparation of a revised environment plan. It provides:Consultation with relevant authorities, persons and organisations, etc(1)In the course of preparing an environment plan, or a revision of an environment plan, a titleholder must consult each of the following (a relevant person):(a)each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;(b)each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant;(c)the Department of the responsible State Minister, or the responsible Northern Territory Minister;(d)a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan;(e)any other person or organisation that the titleholder considers relevant.(2)For the purpose of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person.(3)The titleholder must allow a relevant person a reasonable period for the consultation.(4)The titleholder must tell each relevant person the titleholder consults that:(a)the relevant person may request that particular information the relevant person provides in the consultation not be published; and(b)information subject to such a request is not to be published under this Part.