07 February 2023
20 min read
Published by:
The recent judgement in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 (Waratah Coal) sends a clear message that human rights, specifically when informed by climate change, are a salient factor to be considered by administrative decision-makers.
The judgment, handed down by the President of the Land Court (the Court), was a recommendation that neither a mining lease (ML) nor an environmental authority (EA) be approved with regard to Waratah Coal Pty Ltd’s (Waratah) applications to acquire the relevant approvals to mine thermal coal in the Galilee Basin (the Project).
While the Court was at pains to explain that its reasons for not recommending the approval were specific to Waratah’s mine in the Galilee Basin, rather than guidance on the approval of new mines in general, the judgment nonetheless sets a new tone regarding the consideration of human rights in an administrative decision-making context.
The case concerned applications for an ML and an EA by Waratah to allow it to mine thermal coal in the Galilee Basin, without which the Project could not proceed. The Court’s function in the approval process was to make recommendations, but not the final decision, on each of the applications (the Minister for Resources and the Chief Executive of the Department of Environment and Science would decide the ML and EA, respectively).
Relevantly, the Project was proposed to encompass open cut and underground thermal coal mining on several properties in central Queensland, including one property in a protected area under the Nature Conservation Act 1992 known as the Bimblebox Nature Refuge (Bimblebox Refuge). The Bimblebox Refuge comprises a significant protected area estate in Queensland and Waratah proposed to underground mine two-thirds of the refuge. The Court accepted that the evidence suggested the refuge would likely be lost and the ecological values of Bimblebox Refuge seriously and possibly irreversibly damaged.
Following the Court’s determination on each of the matters raised by the parties, the prescribed factors required under the Mineral Resources Act 1989 and the Environmental Protection Act 1994, and the Court’s obligations under the Human Rights Act 2019 (Qld) (HRA), the Court decided to recommend both applications be refused.
The impact on Bimblebox Refuge greatly informed the Court’s final recommendation considering the active parties to the case were key stakeholders in Bimblebox Refuge. However, in the end it was the human rights implications of the Project, both as they related to Bimblebox Refuge and to climate change more generally, which determined the Court’s final recommendation.
The Court’s judgment dealt with how the HRA relates to the Court’s function in a mining objection hearing.
The Court confirmed (as it previously had) that it was a public entity within the meaning of the HRA when making recommendations on applications for MLs or EAs. And further confirmed that it must therefore fulfil the obligations imposed on a public entity, making it unlawful for the Court under section 58 of the HRA to either:
The Court, being obliged to properly consider human rights, expounded on when this obligation may be fulfilled, stating at [84]:
“An act or decision is compatible with human rights if it does not limit a human right or, if it does, the limit is only to the extent that it is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom".[1]
The HRA outlines the 23 human rights that are protected and section 13 of the HRA (subsequently referenced as the proportionality test) gives guidance on when those human rights may be limited.
The Court determined the following rights would be limited on climate change grounds by the Project:[2]
While Waratah accepted that the above human rights would be ‘engaged’ by the Project, it disputed those rights would be ‘limited,’ arguing there was not a sufficient causal relationship between the granting of the ML and EA and the harm said to limit the human right.
In other words, Waratah argued it had no control over the emissions because approving the ML and EA applications did not actually approve the ‘combustion’ of the coal, rather that would be a decision made in the countries to which the coal would be exported (here being Southeast Asia). That argument was rejected by the Court who said that granting permission to mine the coal could not be logically separated from the coal being used to generate electricity because the justification for the mine was to export coal for that very purpose.
As a matter of law, the Court decided they could take the emissions into account in applying the principles of ecologically sustainable development (for the EA application) and in considering whether the applications are in the public interest (on both the ML and the EA applications).
The Court accepted and was not in dispute that human-induced climate change is caused by greenhouse gas (GHG) emissions, most importantly carbon dioxide, which is emitted when thermal coal is combusted. The Court also noted that there was clear evidence that the long-term global temperature goal set by the Paris Agreement was, globally, a real challenge to achieve.
As the Project’s economic viability and very existence depended on GHG, the Court did not have any trouble making a causal connection between the approval of the Project and the Project’s contribution to future climate change.
Under the HRA, an act or decision can limit a human right if the limit is no more than is justified in a free and democratic society, based on human dignity, equality and freedom.[3] That test requires the decision maker to balance the purpose and importance of both the limit and the right, taking into account the nature and extent of the limit and whether there are less restrictive alternatives.
The Court, having determined what human rights would be limited by the mining of coal that would be combusted to generate electricity, applied the proportionality test:[4]
The Court found that the nature of the purpose of the above limitation was to:
It was determined by the Court that the above purposes were legitimate and could be advanced by the Project, stating:
“The purpose of generating economic and other benefits and providing energy security is consistent with a free and democratic society based on human dignity, equality and freedom”.[8]
Acknowledging the economic benefits to be ‘considerable’,[9] President Kingham stated, “developing the mineral resources of the state is an important source of revenue for the Queensland Government and is applied for the benefit of the people of Queensland”.[10]
Ultimately however, the Court determined there were less restrictive and more reasonably available ways to achieve the aforementioned purposes, citing renewable sources, nuclear and less carbon-intensive fossil fuels such as gas as being able to provide energy security and economic benefit to Queenslanders.[11]
Therefore, in respect of each human right, considered individually, the Court decided the importance of preserving the right, given the nature and extent of the limitation, weighed more heavily in the balance than the potential economic benefits of the mine and the benefits of contributing to energy security for Southeast Asia.
In response to the ecological impacts of the Project, Waratah submitted offsets were the answer to any unavoidable impacts of the Project.[12] However, the Court, informed by offset experts, determined Waratah’s offset plan to be inadequate when assessed against current requirements.[13] Further, while the Court agreed an adequate offset plan was not impossible for addressing the biodiversity offset, it determined that no offset could address the “cultural and spiritual values associated with a place and its history.” [14] Specifically, there was no offset that could counterbalance the 22 years the owners of Bimblebox Refuge had invested in their custodianship of the refuge.
Another factor that weighed against recommending approval was that any attempts at offsetting the impact of the Project would affect the Project’s economic viability. President Kingham spoke to the relevance of viability regarding the Project, stating, “viability matters because the economic benefits are only fully realised if the mine is viable”.[15]
The Waratah decision provides insight into the Court’s interpretation and ultimate operation of the HRA as it applies to proposed projects with far-reaching ecological and social impacts, despite the promise of those same projects delivering substantial economic benefits to the State.
This case demonstrates how climate change must be at the forefront of administrative decision-making and that relevant stakeholders to a decision have expanded to include the global community as a whole. Specifically, the Court, in citing global and national goals of reducing emissions that contribute to climate change, made clear that impacts of any project must be assessed with an increased understanding of interconnectivity and foresight.
It should be noted that Waratah has, following judgment, since filed for an application for a statutory order of review to quash the Land Court’s decision under the Judicial Review Act 1991, with a directions hearing scheduled for February. Watch this space for updates on the outcomes of this judicial review application and further insights into administration decision-making as a result of the outcome of Waratah’s application.
Reach out to our government team if you require assistance navigating the human rights regime in relation to your administrative decision-making processes. Our local team has extensive experience applying the HRA to matters ranging from privacy disputes to complex statutory decision-making processes.
[1] HRA, sections 8 and 13.
[2] Waratah Coal at [1298].
[3] HRA, section 13(1).
[4] Waratah Coalat [1425]-[1451].
[5] HRA, section 13(2)(b).
[6] HRA, section 13(2)(d).
[7] HRA, section 13(2)(e).
[8] Waratah Coal at [1430].
[9] Ibid at [1446].
[10] Ibid at [1445].
[11] Waratah Coal at [1437].
[12] Ibid at [453].
[13] Ibid at [456].
[14] Ibid at [569].
[15] Ibid [34].
Queensland medical bodies warn of escalating costs to visit GPs due to payroll tax clash
Queensland's peak medical bodies are warning the cost of going to the doctor could skyrocket as general practice comes under more strain due to a clash over tax law. The Queensland Revenue Office put out a ruling in December confirming that GPs are employees for payroll tax purposes and that the fees they receive from patients via the medical clinics should be taxable (1 February 2023). Read more here.
Submissions open for review to safeguard whistle-blowers
Retired Supreme Court judge, the Honourable Alan Wilson KC, is calling for submissions to his review of the Public Interest Disclosure Act 2010. Mr Wilson has published an issues paper and called for public submissions to the review, which will strengthen Queensland’s public interest disclosure laws and consider further safeguards for whistle-blowers (30 January 2023). Have your say here.
Independent chairs appointed to Forensic Science Queensland’s Interim Advisory Board
Eminent retired judges Julie Dick SC and Walter Sofronoff KC will co-chair Forensic Science Queensland’s new interim advisory board. The interim advisory board will provide strong accountability, transparency, and governance oversight to support the establishment and operations of Forensic Science Queensland (23 January 2023). More information here.
New laws to increase hate crime penalties
The Queensland Government will introduce new laws this year to increase penalties for hate crimes and serious vilification offences. Following consideration by the Queensland Parliament’s Legal Affairs and Safety Committee last year, it was recommended that increased penalties were necessary due to the seriousness of this offending, which seeks to harm and intimidate fellow Queenslanders (23 January 2023). Details here.
Queensland’s Inaugural First Nations Justice Officer Appointed
The Queensland Government has appointed Stephen Tillett as the state’s inaugural First Nations Justice Officer. The office will lead development of a whole-of-government and community strategy to reduce the representation of Indigenous people in Queensland’s criminal justice system, improve the cultural capability of the justice system and engage with First Nations communities about their experiences in the justice system (16 January 2023). More here.
Voluntary assisted dying laws come into effect today in Queensland, so how does it work?
Voluntary assisted dying (VAD) is now legal in Queensland — the fourth state to have a scheme in operation – 15 months after laws passed state parliament. Modelling by Queensland Health projects about 400 terminally ill adults could use Queensland's voluntary assisted dying laws to legally end their lives during the first 12 months of the new laws coming into effect (1 January 2023). Details here.
Child Death Review Board Annual Report 2021-22 tabled
The Queensland Government has tabled the 2021-22 Annual Report of the Child Death Review Board. The report makes six recommendations focusing on workforce, continuity of care, responding to domestic and family violence, promoting the safety of infants and unborn children, and promoting the safety of children with a disability. Read the report here.
First progress report on domestic and family violence reforms
The first independent progress report of the Queensland Government’s Women’s Safety and Justice Taskforce reforms to end domestic and family violence and criminalise coercive control has been released. The progress report prepared by Ms Linda Apelt, the interim Independent Implementation Supervisor, showed considerable work had been achieved to date. More here.
2023 Report on Government Services released
The 2023 Report on Government Services has been released by the Productivity Commission. The Report provides important information to help governments and the community understand the efficiency and effectiveness of key services to the community across a broad range of indicators relating to services including education, justice, community services, health, emergency management, housing and homelessness. Read the report here.
Australia's climate in 2022: warmer and wetter than average overall
The Bureau has published climate data for the full 2022 calendar year, along with a summary of the key statistics which show 2022 was wetter and warmer than average for Australia overall. The national mean temperature was 0.50°C warmer than the 1961–1990 average, making 2022 the equal 22nd warmest year on record since national temperature records began in 1910. Read more here.
Queensland Audit Office releases latest Major Projects report
Queensland needs infrastructure that is effective, well-maintained, and in place when and where it is needed. It is important for the economy, standard of living, and communities. The Queensland Audit Office’s report on Major Projects 2022-23 provides details on Queensland’s major infrastructure projects and analyses expenditure by the state government. See more here.
AAT Bulletin Issue No. 2/2023 30 January 2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.
Changes to Supreme Court Commercial List in 2023
The new Supreme Court Practice Direction 1 of 2023 aims to improve the conduct of commercial litigation by an enhanced Commercial List from 30 January 2023. The practice direction applies to existing and future proceedings on the Commercial List commenced in, or transferred to, the Brisbane Registry. Read the Practice Direction and more information here.
Federal Court rules amended
The Federal Court Legislation Amendment Rules 2022 commenced on 13 January 2023. The Amendment Rules update references to regulations and the Federal Circuit and Family Court of Australia, clarify the transfer of proceedings to and from the Federal Circuit and Family Court of Australia (Division 2) and provide for greater rule harmonisation between courts. Details here.
Karam Group Pty Ltd as Trustee for Karam (No. 1) Family Trust v HCA Queensland Pty Ltd & Ors [2022] QSC 290
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE A STATUTORY PROCEDURE – where the adjudicator decided an adjudication application on 25 August 2022 – where the adjudicator did not notify the parties that they had reached a decision until 26 August 2022 – where the time for making a decision under the BIF Act was midnight on 25 August 2022 – whether the purported decision of the adjudicator is made out of time and therefore void and should be set aside
Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QCA 263
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where the Chief Health Officer made a decision to make directions under the Public Health Act 2005 (Qld) – where the appellants requested a statement of reasons under the Judicial Review Act 1991 (Qld) – where the appellants are entitled to a statement of reasons if the decision is of administrative character – where the judge determined that the decision was legislative rather than administrative in character– whether the decision was of a legislative character
Kerr & Anor v Member Traves of QCAT [2022] QSC 289
ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS - where the applicants’ filed an application for a minor civil dispute with the Queensland Civil and Administrative Tribunal (QCAT) relating to observed waterflow coming from a neighbouring property – where the QCAT registry rejected the application on the basis that QCAT did not have jurisdiction – where the applicants’ filed a Form 40 application for miscellaneous matters to review the decision to reject their application – where the application were rejected by QCAT for lack of jurisdiction – where QCAT gave reasons for the rejection - where the applicants’ applied to the Supreme Court for statutory order of review of QCAT’s decision on claims of jurisdictional error – whether the applicants’ have established jurisdictional error.
Morgan v Parole Board Queensland [2022] QSC 280
ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JUDICIAL REVIEW – ERROR OF LAW - Where the applicant applied for a review of various decisions of Parole Board Queensland: namely, granting him parole “on conditions”; revoking that decision; and ultimately refusing his application for a parole order – whether a valid decision to grant the applicant’s application for a parole order was ever made – whether, in later refusing his application for a parole order, the Board failed to take relevant considerations into account, including the applicant’s efforts at rehabilitation and his completion of a substance abuse program.
Campbell v Queensland Building and Construction Commission [2022] QCAT 403
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – applicant made claim under statutory insurance scheme in respect of incomplete work – Queensland Building and Construction Commission disallowed the claim – applicant applies to review decision – whether building contract ended within 2 years after the day the work started – when work physically started at site – whether applicant validly terminated contract – whether contractual right to terminate for delay in recommencing construction works – whether builder renounced contract by reason of defective work
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21
HUMAN RIGHTS – Human Rights Act 2019 ss 8, 13, 15(2), 16, 24, 25(a), 26(2), 28, 58 – where the Court required to properly consider human rights relevant to its decision - where the meaning of a ‘limit’ to a human right considered - whether there is a sufficient causal connection between the approval of the applications, the combustion of the mined coal and the harm resulting from climate change to constitute a limit - where the meaning of the right to life, the cultural rights of First Nations peoples, the rights of children, the right to property, the right of privacy and home, and the right to equal enjoyment of human rights considered - where the Court considered whether the limit to each of those rights was demonstrably justified
Steven v Borrill & Ors [2022] QIRC 459
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – application in existing proceedings for legal representation – where respondent has filed an application for leave to be legally represented – where complainant objects to the application – factors to be considered by Commission in determining whether to allow legal representation – circumstances of the case – where leave is granted for legal representation
Acts assented to
Animal Care and Protection Amendment Act 2022 No. 35 - Assent 12 December 2022
Integrity and Other Legislation Amendment Act 2022 No. 33 - Assent 12 December 2022
Public Sector Act 2022 No. 34 - Assent 12 December 2022
Proclamations commencing Acts made
Proclamation No. 1—Inspector of Detention Services Act 2022 (commencing certain provisions)
Subordinate legislation notified
Public Trustee (Interest Rate) Amendment Regulation 2023
Work Health and Safety (Codes of Practice) (Stevedoring and Other Matters) Amendment Notice 2022
Planning Amendment Regulation 2022
Fisheries Legislation Amendment Declaration 2022
Forestry (State Forests) and Other Legislation Amendment Regulation (No. 4) 2022
Major Sports Facilities (Major Concerts at Brisbane Stadium (Lang Park)) Amendment Regulation 2022
Petroleum and Gas (Safety) and Other Legislation Amendment Regulation 2022
Proclamation No. 1—Inspector of Detention Services Act 2022 (commencing certain provisions)
Public Trustee (Interest Rate) Amendment Regulation (No. 4) 2022
Right to Information and Other Legislation Amendment Regulation 2022
Superannuation (State Public Sector) Regulation 2022
Supreme Court (Admission) Amendment Rule 2022
Water Plan (Barron) (Postponement of Expiry) Notice 2022
Subordinate legislation expired
Water Plan (Barron) 2002
Water Plan (Pioneer Valley) 2002
Disclaimer
The information in this bulletin is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this bulletin is accurate at the date it is received or that it will continue to be accurate in the future.
Published by:
