The Wilderness Society (Tasmania) Inc v Minister for the Environment

The Wilderness Society (Tasmania) Inc challenged the Minister for the Environment's delegate's decision that a proposed small-scale tourist operation on Halls Island, Lake Malbena in Tasmania, was not a "controlled action" under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The applicant sought judicial review on multiple grounds, including the delegate's reliance on the Tasmanian Parks and Wildlife Service's assessment, the consideration of mitigation measures, and potential non-compliance with statutory requirements. The court had to determine whether the delegate's decision involved an error of law or misdirection and whether the delegate was required to consider specific statutory powers before making the decision.

The Federal Court found that the delegate's decision involved errors of law, primarily due to an erroneous view of the Act's requirements and the task under section 75. The delegate had adopted the Departmental brief as his reasons for the decision, but this method was problematic as it included documents not accessible to the applicant. The court highlighted that the delegate should not have referred to documents that were not publicly available when providing reasons for the decision. Additionally, the court determined that the delegate failed to properly consider whether to exercise the power under section 74A of the Act before making the decision under section 75, which was a statutory requirement. These errors led to the conclusion that the decision was flawed and needed to be set aside.

The Court set aside the notice given under section 77 of the Act and ordered the respondent to pay the applicant's costs. The Court also directed the parties to submit a proposed form of order for the new notice to be published under section 77 of the Act, reflecting the Court's reasons for judgment. Furthermore, the Court instructed the parties to confer and attempt to agree on any further appropriate relief in respect of the third ground of the application for judicial review. If the parties could not agree, they were to submit their proposed form of order and submissions by specified dates, with the final determination of any further relief to be made on the papers. The respondent was also ordered to pay the applicant's costs, with a provision for referring the question of an appropriate lump sum to a Registrar in case of disagreement.