FEDERAL COURT OF AUSTRALIA

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 225

THE COURT ORDERS THAT:

1.    Under section 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the State of South Australia be joined as a party to the proceeding on the condition that it not claim costs against any of the existing parties to the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The State of South Australia applies under s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) to be made a party to this application by the applicant. The applicant opposes the application. Neither of the respondents opposed the application. The facts upon which the State relies in support of its application are set out in the affidavit of Sam Walker dated 6 March 2012. The leading authorities on the meaning of a “person interested in a decision” in s 12 of the ADJR Act are Fordham v Evans (1987) 14 FCR 474 and United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520. In the latter case, the Full Court said (at 527) that to be a “person interested” a person must have a status greater than a mere intermeddler or busybody. Nevertheless, the criterion for standing is not a restrictive one and is not confined to a legal, proprietary, financial or tangible interest (at 527).

2        By way of background, I note that the South Australian Minister for Mineral Resources Development has made a decision granting a State approval under s 48 of the Development Act 1993 (SA) as modified by the Roxby Downs (Indenture Ratification) Act 1982 (SA) for the expansion of the Olympic Dam project. A number of the conditions of the State approval require significant infrastructure or management plans to be prepared within 12 months of 10 October 2011 (see, for example, conditions 8, 11, 14, 28, 39 and 51). That approval appeared in the South Australian Government Gazette of 10 October 2011. On 29 November 2011, the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 was passed by the South Australian Parliament.

3        The second respondent has also received an approval dated 10 October 2011 from the Federal Minister for Sustainability, Environment, Water, Population and Communities under ss 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) for the Olympic Dam Expansion project. That is the approval which is challenged in this proceeding by the applicant.

4        One ground of challenge by the applicant to the Federal Minister’s approval is as follows:

4.    Pursuant to sections 5(1)(e) and 5(2)(b) of the ADJR Act, the making of the Decision was an improper exercise of the power conferred by sections 130(1) and 133 of the EPBC Act because:

a.    the Respondent failed to take into account a consideration required to be taken into account by section 134(4)(a) of the EPBC Act, being conditions that were imposed, or were likely to be imposed, under South Australian law for the taking of additional groundwater from the Great Artesian Basin; and

5        Section 134(4)(a) of the EPBC Act is in the following terms:

(4)    In deciding whether to attach a condition to an approval, the Minister must consider:

(a)    any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self-governing Territory or another law of the Commonwealth on the taking of the action;

6        I agree with the State’s submission that this ground raises or potentially raises an issue about action taken or likely to be taken under State law and that this gives the State of South Australia a sufficient interest in this proceeding for the purposes of s 12 of the ADJR Act.

7        In the circumstances, I do not need to consider the extent to which the State’s rights and liabilities are directly affected by action which affects, or might affect, the second respondent’s ability to progress the expansion project. Nor do I need to consider whether a more general effect on the State’s economic interests is sufficient to make the State a person interested within s 12 of the ADJR Act.

8        I see no discretionary reason to refuse the State of South Australia’s application. The granting of the application will not delay the trial of the application and I will impose a condition that the State be joined on condition that it not claim costs against any of the existing parties to the proceeding.

Associate:

Dated:    14 March 2012