Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth)

The case involved the Secretary, Department of Sustainability and Environment (Vic) as the applicant and the Minister for Sustainability, Environment, Water, Population and Communities (Cth) as the respondent. The dispute arose from the respondent’s refusal to approve a proposed research trial by the Department to assess the effectiveness of strategic cattle grazing as a tool for fuel and bushfire risk management in Victoria’s high country. This trial was planned to take place in several sites within the Australian Alps National Parks and Reserves, which are listed as National Heritage. The applicant sought judicial review of the respondent's decision, arguing that it exceeded the respondent's powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) by relying on criteria that were not necessary or adapted to give effect to an obligation under the Convention on Biological Diversity.

The court had to determine whether the respondent's decision was lawful, particularly whether it correctly applied the criteria for determining the impact of the proposed action on matters of national environmental significance. The core issue was whether the respondent's reliance on National Heritage values of an aesthetic and recreational kind, which were not protected by the Convention on Biological Diversity, was valid. The applicant contended that the respondent’s decision was flawed because it considered criteria that were not necessary or adapted to meet the obligations under the Convention. The court needed to assess whether the respondent's reliance on these criteria was permissible under the EPBC Act and if it appropriately balanced the interests involved.

In ruling on the matter, the court examined the respondent's decision and found that the findings regarding the unacceptable impact on the National Heritage values were independent of the specific criteria applied. The court held that the respondent's decision was valid because it was based on the clearly unacceptable impact on the ecology and species diversity of the alpine national parks, which are protected under the EPBC Act. The court also noted that the reasons provided by the respondent were sufficient and did not need to be scrutinized minutely. The court concluded that the respondent did not exceed their powers and that the decision was not flawed as argued by the applicant. Therefore, the court dismissed the application for judicial review.