Australia: Your Decision Was Too Late, Or Have I Misconstrued?

In Waratah Coal Inc v Minister for the Environment Heritage and the Arts [2008] FCA 1870, the Federal Court rejected an application for review of the Federal Environment Minister's decision to refuse a proposal involving the construction of a rail link and coal port in the Shoalwater Bay Ramsar Wetland (proposal). The rail link and coal port were intended to facilitate export from a major proposed new coal mine, the Galilee Coal Project, in central Queensland. The Minister used his powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to reject the proposal up-front on the basis that it would have "clearly unacceptable" impacts on the Shoalwater Bay Ramsar Wetland.

In rejecting Waratah Coal Inc's (WCI) argument that the Minister's decision was invalid because it was made outside the time limit stated in the EPBC Act, Collier J considered the issue of statutory construction.


The EPBC Act establishes an assessment and approval process for proposed actions, including projects and developments, which are likely to have a significant impact on matters of national environmental significance or on Commonwealth land. By virtue of section 74B of the EPBC Act, the Federal Environment Minister has the power to decide that a proposed action referred to him or her is "clearly unacceptable". The Minister makes such a decision if an action would be unlikely to receive approval, thus saving expense and time for both the Minister and the proponent of a project where that project would ultimately be refused if it went through the full assessment and decision stages of the EPBC Act. Section 74B gives the Minister 20 business days from the date of the referral to make his or her decision.

Minister Garrett's decision on 5 September 2008 that WCI's proposal was "clearly unacceptable" was made seven days outside of the time limit. It was the third such decision under section 74B since the section commenced. The Minister concluded that the construction and operation of the 100 hectare port facility and part of the railway line would result in the permanent destruction of wilderness values, ecological integrity and the scientific values of the immediate and surrounding area, and would therefore have clearly unacceptable impacts on the environment of the affected Commonwealth land.

Federal Court Application

In a first for a section 74B decision, WCI commenced a judicial review application in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), submitting that the Minister's failure to decide the referral within 20 business days made the Minister's decision invalid. WCI also submitted that the lateness of the Minister's decision defeated the purpose of section 74B, which is to make prompt decisions.

The Minister submitted that the construction of section 74B advanced by WCI risked substantial frustration of the ultimate purpose of that section, which is to avoid the expense and time involved in conducting a full assessment process for an action that is unlikely to receive approval.


Collier J referred to two sections of the EPBC Act that explicitly provide that a failure to comply with a time limit does not, of itself, affect the validity of a decision or action by the Minister under the Act, and found that:

"[n]o contortion of the legislation or speculation as to the manner in which s 74B is to be construed ... detracts from the natural and ordinary meaning of the words in [those sections]."

Her Honour also found that:

"[a]lthough the legislative purpose in enacting Div 1A [including s 74B] was to facilitate a prompt refusal by the Minister of an action which would have unacceptable environmental impacts, the legislation does not support an interpretation that a decision made by the Minister on, for example, the 21st business day after the referral would not be of equal validity to a decision made within the prescribed time period... [T]he making of a decision of the Minister is critical – the time period of 20 business days, while relevant to the making of the decision, does not determine its validity".


This case reinforces the principles of statutory construction articulated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Whether an act done, or a decision made, in breach of a condition regulating the doing of the act or the making of the decision is invalid depends on the legislative purpose of the relevant statute, ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Here, Collier J found that there was nothing in the language of section 74B that suggested that making a decision within 20 business days is a condition of validity of a decision made under that section.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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