Statement re NSD33/2015 Mackay Conservation Group v Minister for Environment

19 August, 2015

The purpose of this statement is to correct media reports about the making of orders by the Court affecting the proposed Carmichael coal mine project.

On 12 January 2015 the Mackay Conservation Group filed an application for judicial review of the decision of the Minister for the Environment made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) to approve proposed action to develop an open cut and underground coal mine, rail link and associated infrastructure in central Queensland, subject to certain conditions.  

On 4 August 2015 a judge of the Court made orders setting aside the Minister’s decision.  The orders were not made after a hearing.  There was no judgment.  There were no findings.  The orders were made by consent, that is, with the agreement of the parties to the litigation.

Proposed orders were presented to the Court in a letter from the Australian Government Solicitor (AGS), who acted for the Minister and the Commonwealth.  The letter was written with the agreement of the other parties: Mackay Conservation Group and Adani Mining Pty Ltd.  

In the case of an agreement by parties to litigation to set aside a decision of the Executive, the Court’s usual practice, known to the parties, is that the Court be informed of the error sufficient to set aside the decision.  In this case that was done in the letter from the AGS.

The basis of the parties’ request and the basis upon which the orders were made was that:

  1. The Minister found that the proposed action would have a significant impact on two listed threatened species:  the Yakka Skink and the Ornamental Snake

  2. There were conservation advices approved by the Minister for those two species.

  3. Under the terms of s 139(2) of the Act, it was mandatory for the Minister to have regard to the approved conservation advices.

  4. In deciding whether or not to approve the proposed action, the Minister did not have regard to the approved conservation advices.

  5. The Minister did not have regard to the approved conservation advices because they were not included in the material that was before him at the time he made his decision.