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The precautionary principle in EPBC Act referrals

Last Monday, 25 July 2022, Justice Moshinsky of the Federal Court handed down the Court’s decision in Bob Brown’s legal challenge concerning the protection of Masked Owls in the Tarkine[i].

The application for judicial review concerned the application of the precautionary principle to decision-making under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in relation to a population of Tasmanian Masked Owl at MMG Australia Pty Ltd’s proposed tailings storage facility near Rosebery in Tasmania.

Justice Moshinsky found that consideration of the precautionary principle (namely, if there are threats of serious or irreversible environmental damage) requires the decision-maker to bring ‘an active intellectual process to this matter‘[ii]. In this case, the decision-maker merely stated ‘In making my decision I took account of the precautionary principle as required by sections 3A(b) and 391(2) of the EPBC Act.’[iii]

Kellehers is actively monitoring this case and will report in further detail on the consequences of Justice Moshinsky’s decision.

29 July 2022

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[i] Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 (25 July 2022)

[ii] Ibid, [33]-[48].

[iii] Ibid, [39].