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  4. Fox Coal Pty Ltd v Minister for Resources - [2023] QSC 197

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Fox Coal Pty Ltd v Minister for Resources[2023] QSC 197

Reported at (2023) 16 QR 309

Fox Coal Pty Ltd v Minister for Resources[2023] QSC 197

Reported at (2023) 16 QR 309

SUPREME COURT OF QUEENSLAND

CITATION:

Fox Coal Pty Ltd & Anor v Minister for Resources [2023] QSC 197

PARTIES:

FOX COAL PTY LTD

(first applicant)

and

ZIMPROPS COAL PTY LTD

(second applicant)

v

SCOTT STEWART, MINISTER FOR RESOURCES

(respondent)

FILE NO:

BS 5887 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review under Judicial Review Act 1991 (Qld)

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

29 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2023

JUDGE:

Hindman J

ORDER:

The Decision is set aside.  The parties are to make submissions on the costs of the proceeding. 

CATCHWORDS:

JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent rejected an application made by the applicants for the grant of a mineral development licence under s 186(1)(b) of the Mineral Resources Act 1989 (Qld) – where the respondent’s refusal was made on the basis that granting the licence was not in the public interest due to community sentiment adverse to the grant of the licence – where the applicants contend that the respondent’s decision was vitiated by an error of law because the respondent failed to undertake a required evaluative judgment of whether granting the licence was in the public interest – where the applicants further contend that the respondent failed to take into account relevant considerations and took into account irrelevant considerations – where the applicants further contend that the decision was unreasonable in the legal sense – whether the respondent’s decision to reject the applicants’ application for a mineral development licence should be set aside

Legislation

Environment Protection (Impact of Proposals) Act 1974 (Cth)

Judicial Review Act 1991 (Qld) ss 4, 20, 23, 32

Mineral Resources Act 1989 (Qld) ss 2, 6D, 179, 181, 183, 186, 286A, 318AK, 386M and 386N

Cases

AB v Western Australia (2011) 244 CLR 390

Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124

Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Dodds v Comcare Australia (1993) 31 ALD 690

DPP v Smith [1991] VR 63

ERO Georgetown Gold Operations Pty Ltd v Cripps, Minister for Natural Resources & Mines [2015] QSC 1

Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433

Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1

Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320

O'Sullivan v Farrer (1989) 168 CLR 210

Papillon Mining & Exploration Pty Ltd (in liq) v Wilson [2010] 1 Qd R 452

Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 264 CLR 636

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

COUNSEL:

M T Brady KC with S T Lane for the applicants

J M Horton KC with K E Slack for the respondent

SOLICITORS:

McCullough Robertson for the applicants

Crown Law for the respondent

Introduction

  1. [1]
    This is an application by the applicants pursuant to s. 20 of the Judicial Review Act 1991 (Qld) (JRA) to review a decision[1] (Decision) of the respondent (Minister) made on 5 April 2022 to refuse the applicants’ application of 2 October 2019 for the grant of mineral development licence 3040 (MDL 3040) under the Mineral Resources Act 1989 (Qld) (MRA) over land within the boundaries of EPC 1523 (MDL Application).[2]  The parties agree that the MDL Application satisfied the criteria for such an application under s. 183(1) of the MRA.[3]  The Minister refused the MDL Application pursuant to s. 186(2) of the MRA.  Section 186(2) of the MRA provides that the Minister may refuse to grant an MDL application “if the Minister considers the grant is not in the public interest”.  The Minister considered that the grant of the MDL Application was not in the public interest.[4]  The Minister provided reasons for the Decision on 22 April 2022 (Reasons).[5]
  2. [2]
    It is not in dispute that:
  1. (a)
    the Decision was:[6]
  1. (i)
    of an administrative character;
  2. (ii)
    made under an enactment, the MRA; and
  3. (iii)
    a decision to which the JRA applies within the meaning of s. 4 of the JRA, and 
  1. (b)
    the applicants are persons aggrieved by the Decision to which the JRA applies within the meaning of s. 20(1) of the JRA.[7]
  1. [3]
    The applicants advance four grounds for the judicial review application:
  1. (a)
    the Minister failed to approach his task in accordance with the legislative requirements leading him into legal error (that is, the Decision involved an error of law: s. 20(2)(f) of the JRA);
  2. (b)
    the Minister failed to take account of relevant considerations (that is, the Decision involved an improper exercise of power in that the Minister failed to take into account considerations that were relevant to the making of the Decision: ss. 20(2)(e) and 23(b) of the JRA); 
  3. (c)
    the Minister took account of irrelevant considerations (that is, the Decision involved an improper exercise of power in that the Minister took into account considerations that were irrelevant to the making of the Decision: ss. 20(2)(e) and 23(a) of the JRA);
  4. (d)
    the Decision was so unreasonable that no reasonable person could have so exercised the power (that is, the exercise of power by the Minister in making the Decision was so unreasonable that no reasonable person could have so exercised the power: ss. 20(2)(e) and 23(g) of the JRA).
  1. [4]
    Central to all of the grounds advanced by the applicants is one legal issue: what did an assessment by the Minister of the “public interest” under s. 186(2) of the MRA require?  It then falls to consider whether the Minister complied with those requirements (a factual issue). 
  2. [5]
    For the reasons that follow, the application for judicial review is allowed and the Decision is set aside.  The Decision involved an error of law in that the Minister did not carry out the evaluative process of public interest required by s. 186(2) of the MRA.

The statutory regime for the Decision

  1. [6]
    Section 6D of the MRA sets out the type of authorities that are contemplated by the MRA, which are three-fold and progressive in nature.  First, is an exploration permit for coal (EPC) dealt with in Chapter 4A of the MRA.  It is issued for the purpose, inter alia, of allowing exploration work for coal.  Second, is a mineral development licence (MDL) dealt with in Chapter 5 of the MRA.  It permits more detailed investigation of minerals that are considered to have potential for economic development.  Third, is a mining lease (ML) dealt with in Chapter 6 of the MRA.  It allows the actual extraction of minerals.    
  2. [7]
    The objects of the MRA are set out in s. 2 as follows:

2  Objectives of the Act

The principal objectives of the Act are to -

  1. (a)
    encourage and facilitate prospecting and exploring for and mining of minerals;
  2. (b)
    enhance knowledge of the mineral resources of the State;
  3. (c)
    minimise land use conflict with respect to prospecting, exploring and mining;
  4. (d)
    encourage environmental responsibility in prospecting, exploring and mining;
  5. (e)
    ensure an appropriate financial return to the State from mining;
  6. (f)
    provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;
  7. (g)
    encourage responsible land care management in prospecting, exploring and mining.
  1. [8]
    For present purposes, it is the authority set out in s. 6D(d) of the MRA, a mineral development licence, that is most relevant.  An MDL is not a mining lease: the grant of an MDL does not permit mining to be undertaken.
  2. [9]
    Chapter 5 of the MRA deals with mineral development licences generally.  An eligible person may apply for an MDL: s. 179.  The requirements for the content of an application for an MDL are set out in s. 183 of the MRA.  As noted, there is no dispute that the requirements of s. 183 were met by the applicants in this case.
  3. [10]
    The Minister, under s. 186, may either: 
  1. (a)
    grant an MDL (with or without conditions, for all or part of the land the subject of the application) (s. 186(1)(a)); or
  2. (b)
    refuse the application (s. 186(1)(b)).
  1. [11]
    Section 181 of the MRA sets out the obligations and entitlements of the holder of an MDL, relevantly as follows:

181 Obligations and entitlement under mineral development licence

  1. (1)
    During the currency of a mineral development licence, the holder shall carry out or cause to be carried out such activities as are specified in the licence by the Minister.
  2. (2)
    The Minister may specify in a mineral development licence that no activity need be carried out for the term of the licence or for such period as is specified therein.
  3. (3)
    Without in any way limiting the activities that the Minister may specify in a mineral development licence, activities leading to the evaluation and economic development of an ore body by or on behalf of the holder may include -
  1. (a)
    geological, geophysical and geochemical programs and other works as are reasonably necessary to evaluate the potential for development of any mineral occurrence of possible economic potential occurring in or on the area of the mineral development licence; and
  2. (b)
    mining feasibility studies; and
  3. (c)
    metallurgical testing; and
  4. (d)
    environmental studies; and
  5. (e)
    marketing studies; and
  6. (f)
    engineering and design studies; and
  7. (g)
    such other activities as the Minister considers appropriate.
  1. (4)
    During the currency of a mineral development licence -
  1. (a)
    the holder -
  1. (i)
    may carry out or cause to be carried out any activities (including activities referred to in subsection (2)) as are appropriate for the purpose for which the licence is granted; and
  2. (ii)
    may, in relation to the area of the mineral development licence, do all such things as are authorised or were authorised, at the time of the application for the mineral development licence, under the relevant exploration permit then held by the applicant for the mineral development licence; and
  3. (iii)
    may carry out or cause to be carried out the plugging and abandoning, or otherwise remediating, of a legacy borehole and rehabilitating of the surrounding area in compliance with the requirements prescribed under a regulation; and

…

  1. [12]
    The power of the Minister to grant or refuse an application for an MDL is set out in s. 186 of the MRA, in the following terms (relevantly):

186 Minister may grant or refuse application

  1. (1)
    The Minister may -
  1. (a)
    grant a mineral development licence, with or without conditions, for all or part of the land the subject of an application (the relevant land) for the licence; or
  2. (b)
    refuse the application.
  1. (2)
    Without limiting subsection (1), the Minister may refuse to grant a mineral development licence if the Minister considers the grant is not in the public interest.
  2. (3)
    The Minister may grant the mineral development licence only if -
  1. (a)
    the Minister is satisfied -
  1. (i)
    the requirements of this Act have been complied with; and
  2. (ii)
    the applicant is an eligible person; and
  3. (iii)
    the applicant has paid rental for the first year of the term of the licence under section 193(1); and
  1. (b)
    the Minister has approved the statements that, under section 183(1), accompanied the application.
  1. [13]
    The power in s. 186(1)(a) may only be exercised if s. 186(3) is satisfied.  The refusal power in s. 186(1)(b) is not subject to any express limitation.  One express reason why the Minister may decide to refuse the application is if the Minister considers that grant is not in the public interest: s. 186(2).  Section 186(2) provides (emphasis added) - ‘Without limiting subsection (1)’ (an affirmation of how broad the discretion in s. 186(1) is), ‘…the Minister may refuse to grant a mineral development licence if the Minister considers the grant is not in the public interest’.
  2. [14]
    The breadth of the power in s. 186(1)(b) is confirmed by ss. 386M and 386N of the MRA. To the extent that s. 186(2) ‘permits or requires the Minister to consider particular criteria in deciding an application’, the Minister ‘may, in making the decision, consider any other criteria the Minister considers relevant’: s. 386M(2). Similarly, to the extent that s. 186(2) ‘provides for particular grounds on which the Minister may refuse an application’, the Minister ‘may refuse the application on another reasonable and relevant ground’: s. 386N(2).

The Decision and the Reasons

  1. [15]
    The Decision provides:

I am writing to you regarding the application for Mineral Development Licence (MDL) 3040 lodged by you on behalf of [the applicants] on 2 October 2019.

Taking into account all of the relevant material, I, as the Minister in my capacity as a decision maker under section 186 of the Mineral Resources Act 1989 (MRA) have decided that it is not in the public interest to grant MDL 3040.  As such, I have decided to refuse the MDL application pursuant to section 186(2) of the MRA.

In making my decision I have not considered all of the criteria under sections 183 and 186 of the MRA, because even if [the applicants were] able to satisfy all of the criteria under these sections, the application would still be refused on the basis of public interest.

As outlined in my previous correspondence there were a number of concerns that I had with the location of MDL 3040.  In your submission in response to this correspondence I was not satisfied that the further information demonstrated that the grant of MDL 3040 would be in the public interest.

You did not adequately address my concerns relating to the significant concerns raised by the community in the Bundaberg region.

Therefore, as the Minister, I have decided to refuse the MDL application pursuant to section 186(2) of the MRA on the basis that it is not in the public interest to grant the application.

  1. [16]
    The following day, 5 April 2022, the applicants’ solicitors sent a request to the Minister requesting the Minister provide reasons for the Decision pursuant to s. 32 of the JRA.[8]
  2. [17]
    On 22 April 2022, the Minister responded and provided the Reasons.[9]  The Reasons set out the procedural background to the Decision,[10] the legislative framework under which the Decision was made,[11] a list of the material and evidence that the Minister had considered in making the Decision,[12] and the Minister’s findings on “material questions of fact”.[13] 
  3. [18]
    I note at this juncture that neither the Decision nor the Reasons should be read pedantically or in an unduly critical manner, but instead sensibly and fairly.[14]  The decision-making process is not to be scrutinised by seeking to discern whether “some inadequacy may be gleaned from the way the reasons are expressed” or the analysis done “with an eye keenly attuned to error.”[15]

The key legal issue

  1. [19]
    As identified above, central to all of the applicants’ grounds of judicial review of the Decision is one legal issue: what did an assessment by the Minister of the “public interest” under s. 186(2) of the MRA require? 

The applicants’ position – an evaluative process was required

  1. [20]
    The applicants’ position is that a proper consideration of whether the MDL Application was in the public interest involved an evaluative process (which could include a consideration of community sentiment).  That is said to be the position by operation of the proper construction of s. 186(2) (read with ss. 2 and 183, and the MRA as a whole). 
  2. [21]
    The applicants say that no evaluative process was here undertaken.  Instead, the Minister substituted the question of what constituted the community sentiment in place of a proper consideration of whether the MDL Application was in the public interest. 
  3. [22]
    That no evaluative process was undertaken the applicants say is clear from the terms of the Decision in that it expressly says the Minister has not considered all of the criteria under ss. 183 and 186 of the MRA because even if all those criteria were satisfied, the application would still be refused on the basis of public interest.  The applicants say that those factors (along with others) ought to have been taken into account by the Minister as a part of working out what was the public interest.
  4. [23]
    The applicants say it was not sufficient that prior to the Decision being made some evaluative process may have been carried out within the Department, because that was not the approach taken by the Minister in the Decision itself.   
  5. [24]
    The applicants further say that the evaluative process should have considered whether there was a proper basis for the (negative) community sentiment.
  6. [25]
    Further, the applicants say that the evaluative process should not have had reference to the public interest beyond the grant of the MDL.  In that respect, relevantly, s. 186 limits the consideration of public interest to that in relation to an MDL – it is not concerned with whether the grant of a hypothetical future ML might be in the public interest (noting that there is a separate power engaged when dealing with an ML application).
  7. [26]
    The applicants contend that, because the Decision was “predicated entirely on [the Minister’s] view that there was ‘adverse community sentiment’ and that the applicants had not proposed measures to ‘mitigate ... community concerns’”,[16] the wrong legal test was applied by the Minister.[17]  The crux of the submission is that the Minister substituted the question of community sentiment in place of a proper consideration of whether MDL 3040 was in the public interest.[18]  The applicants submit that a proper determination of whether the MDL Application was in the public interest required:[19]
    1. an identification of, and then a consideration and determination of, the interests of the public affected (positively and negatively) by the MDL Application.  That is, a balancing exercise in respect of competing sides of the public interest issue;
    2. a consideration and determination of whether the MDL Application was consistent with the objects of the MRA; and
    3. a consideration and determination of whether or not any expressed community sentiment (positive or negative) concerning the MDL Application had a proper factual basis.
  8. [27]
    The applicants further submit that the Minister’s error of law occurred because the Minister failed to undertake the determination of public interest in accordance with the above requirements, but instead found that, because there was negative community sentiment, it was not in the public interest to grant the MDL Application.  This, the applicants submit, was notwithstanding what interests of the public might be affected – positively or negatively – by the MDL Application, and whether any factual basis existed for any expressed community sentiment.[20] 

The respondent’s position – an evaluative process was not required

  1. [28]
    The respondent’s position is that a proper consideration of whether the MDL Application was in the public interest did not need to involve any evaluative process or balancing exercise as contended for by the applicants.  All that was required was for the Minister to identify a factor determinative of the MDL Application not being in the public interest (which could be, and in this case was, community sentiment).  The respondent says that is the proper construction of s. 186(2) of the MRA, subject only to overlying issues of reasonableness/rationality and one other qualification.  That qualification is that the respondent accepts that before selecting out the determinative factor, the Minister would have to be aware of the other factors that may bear on the public interest issue to ensure that the selected factor was in fact determinative.  In that sense there seems to be an acknowledgment by the respondent that some limited type of weighing or evaluative exercise is required.      
  2. [29]
    The position was put like this for the respondent in oral submissions (T1-76, LL8-15):

(T)he Minister needs to be aware of and demonstrate awareness of all the material things that comprise the public interest – could possibly comprise the public interest and then can select out from that, what he regards as determinative.  But yes, one, I think it’s fair to say – one would need to have some satisfaction for the decision to be logically justifiable in selecting out that the Minister has made that cognisant of the wider considerations that might bear upon that in a material sense.   

  1. [30]
    The Minister submits that the power to refuse an application under s.  186(1)(b) is “unfettered”.[21]  The Minister submits that the language of s. 186(2) of the MRA is “an affirmation of how broad the discretion in s 186(1) is”.[22]  The Minister further submits that the breadth of the power in s. 186(1)(b) is confirmed by ss. 386M and 386N of the MRA.[23] 
  2. [31]
    Citing a series of cases,[24] the Minister says that he may take account of community sentiment.  The applicants concede that this is plainly true, but submit that it fails to grapple with the fundamental question in issue: can the Decision – that is, the decision to decline to grant the MDL Application on the basis that it is against the public interest – be made solely by reference to notions of community sentiment?

Is an evaluative process required as contended by the applicants; the proper construction of s. 186(2) of the MRA

  1. [32]
    Starting with a consideration of the concept of public interest.  The term ‘public interest’ is not relevantly defined in the MRA.[25]  The meaning of the phrase is to be determined by reference to the text, context, and purpose of the MRA.[26]  Derived from various case law, the following statements of principle do not appear to be controversial between the parties:
    1. ‘public interest’ ‘has no fixed and precise content and involves a value judgment often to be made by reference to undefined matters’;[27]
    2. ‘public interest’ ‘embrac[es] matters, amongst others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members’;[28]
    3. the test of ‘public interest’ is one of the widest import, particularly in the hands of a member of the senior political executive.[29]
  2. [33]
    Further in the same respect, in Harburg Investments Pty Ltd v Mackenroth [2005] Qd R 433 (Harburg) at [3] per Macpherson JA it was stated:

A statutory provision which sets up, without defining it, “public interest” as the relevant criterion for decision and vests the power of determining it in a Minister of the executive government leaves little room for challenging the decision in a court of law. The expression “in the public interest”, when used in a statute, was said in O'Sullivan v. Farrer (1989) 168 C.L.R. 210, 216, to import:

“A discretionary value to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.”

See generally Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 C.L.R. 24, at 40. Such a discretionary judgment extends to include taking account of “the likely reaction of the community” to the action proposed: South Australia v. O'Shea (1987) 163 C.L.R. 378, 388. There may, it was said in Hot Holdings Pty Ltd v. Creasy (2002) 210 C.L.R. 438, 455, be cases:

“in which a decision-maker, especially a Minister, may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office”.

The “whole object” of a statutory provision placing a power in the hands of a Minister is so that “he may exercise it according to government policy”

  1. [34]
    The High Court in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (Pilbara),[30] a case which considered a ‘public interest’ criterion, stated that “when a discretionary power of this kind is given, the power is ‘neither arbitrary nor completely unlimited’ but is ‘unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view’”.
  2. [35]
    The statements from those two cases give rise to the following.  First, the use of the phrase “neither arbitrary nor completely unlimited” in Pilbara suggests the discretion is limited in some way.  It is for the Court to decide whether a factor is beyond the scope of the public interest issue in the relevant statute.  Second, the phrasing in Harburg indicates that there are matters – albeit undefined, and thus potentially limitless – to be taken into account when making the “discretionary value judgment”.  Together those matters lightly indicate that where there is an issue of public interest to be considered that will enliven more than a single factor for consideration.  The use of plural, coupled with the reference to an expansive range of matters to be taken into account, indicate that the Minister should consider a range of factors when making the determination of whether granting the MDL is in the public interest.  The concept of deciding whether something is in the public interest naturally implies a weighing up for factors for and against to determine where the public interest lies.  The weight to be accorded to each factor is a matter for the Minister, but a substitution of “community sentiment” in place of “public interest” should not be the basis for an application refusal.
  3. [36]
    Harburg further indicates the breadth of the discretion granted to the Minister in respect of the public interest issue.  However, the language used – that there is “little room for challenging the decision” – of itself shows that there must be some limits. 
  4. [37]
    On the basis of the above, and a reading of the MRA, the Minister’s submission that the power to refuse an application pursuant to s. 186(1)(b) is unfettered cannot be sustained.  Were that to be the case, the Minister’s discretion would be at large with respect to any such applications.  The language of s. 186(3) of the MRA, for example, places a limit on what the Minister may do.
  5. [38]
    So whilst there is no doubt that the test of ‘public interest’ imports a broad discretion, the test cannot be applied in a way completely untethered to notions of the purpose of the MRA and the grant of MDL applications.  For example, a consideration by the Minister that the granting of the MDL Application would result in decreased educational outcomes might, loosely, be a relevant consideration of whether granting the application would be in the public interest.  However, arguably that would not properly be the basis of a consideration of the public interest in the context of the MRA, as the MRA is not concerned with such matters.
  1. [39]
    The terms of the MRA itself, whilst not expressly, refer to many considerations that might properly fall within the content of an assessment of public interest.  For example, all the matters in s. 2, some of the matters in s. 183(1), and matters in ss. 186(3) and (6) of the MRA.  An applicant’s compliance with the requirements of the MRA in relation to any EPC held may be relevant; the likelihood of the applicant applying for or obtaining an ML under the MRA may also be relevant.   
  2. [40]
    Turning then to consider potentially relevant case law, commencing with the decision of Fryberg J in Papillon Mining & Exploration Pty Ltd (in liq) v Wilson [2010] 1 Qd R 452 (Papillon). 
  3. [41]
    Papillon concerned a different provision of the MRA, s. 286A.  The case involved the application for the renewal of a mining lease.  The application was refused on the basis of nine findings of material facts, the last two of which concerned public opposition to the renewal.  The Minister was not satisfied that the public interest would not be adversely affected by a renewal and in that respect relied upon certain of the findings of material facts.  There were other reasons also identified as the basis for rejecting the renewal.  In considering the factor of public interest, Fryberg J, relied on Sinclair v Maryborough Mining Warden (1975) 132 CLR 473.  In that case Jacobs J at 487 said (emphasis added):

The public interest is an indivisible concept.  The interest of a section of the public is a public interest but the smallness of the section may affect the quantity or weight of the public interest so that it is outweighed by the public interest in having the mining operation succeed. 

…

The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence of the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or small section of the public. 

  1. [42]
    Similarly, Stephen J held at 485:

Any consideration of the public interest for the purposes of regulation 39(2)(a) should, I think, involve the weighing of benefits and detriments… 

In some special contexts, questions of public interest may not involve this process of weighing against each other conflicting merits and demerits.  Where, however, the concept of the public interest occurs as a factor in the grant or refusal by the Crown of a mining lease, it can, I think, have only this meaning.

  1. [43]
    After quoting those passages, Fryberg J went on at [22]–[24] in Papillon:

In my judgment, the evidence in the present case does not support a conclusion that the Minister failed to take the merits of the objections into account in that he failed to weigh them against other aspects of the public interest. 

…

It is no doubt correct that in ascertaining the ambit of any discretion vested in the Minister, close regard must be paid to the terms of the Act.  It is I think also correct that in identifying what is comprehended by the public interest in the Act, it is relevant to have regard to section 2.  But as counsel for Papillon conceded, section 2 cannot be regarded as setting out an exclusive list of factors.  Whether the existence of public objections is a relevant consideration must be determined having regard to the Act as a whole. 

  1. [44]
    From [26] Fryberg J referred to the decision in Harburg, particularly the section quoted at [33] above. 
  2. [45]
    A further case demonstrating an evaluative process when considering public interest is Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281.  In that case, the then-opposition made a pre-election promise to re-open a closed airport runway if elected.  The opposition was elected.  Fulfilling the promise required two things to happen – the first of which was the Minister for Environment issuing an exemption under the Environment Protection (Impact of Proposals) Act 1974 (Cth).  That Minister was required to take public interest into account under section 11.3.1(a)(iv).  At [12]-[13], the Minister in the statement of reasons for issuing the exemption said:

I note that in considering how the application of the administrative procedures will affect the “public interest” there may possibly be competing “public interests”.  In this regard, I’ve had regard to the following –

…

Nevertheless, any public interest in having an environmental assessment of the impact of aircraft noise in these communities is, in my view, outweighed by the need for the immediate relief of those most directly affected by the aircraft noise as a result of current arrangements.

  1. [46]
    Lehane J in the decision seemed to endorse that the decision-making exercise in deciding public interest required a balancing (or weighing) exercise to be undertaken.  At 308 he said (emphasis added):

The public interest is a term embracing matters, among others, of standards of human conduct, the functioning of government ….

Once, however it is concluded that the second respondent’s ([the Minister’s]) identification of a public interest concern cannot be impugned in these proceedings, the balancing process is pre-eminently a matter for the second respondent’s discretion.

  1. [47]
    Having regard to the terms of the MRA, its scope and purpose, and relevant case law, an assessment of public interest under s. 186(2) of the MRA requires the following steps to be undertaken by the Minister:
    1. an identification of factors relevant to the assessment of public interest having regard to the scope and purpose of the MRA;
    2. a weighing up of those identified factors; a balancing process to determine where the public interest lies.    
  2. [48]
    The discretion given to the Minister in each of those two steps can be accepted to be very wide.  But if those are not the steps actually undertaken by the Minister in an assessment of public interest under s. 186(2) of the MRA, then an error of law will have occurred. 

Was the required evaluative process undertaken?

  1. [49]
    Turning then to a consideration of whether the required evaluative process was undertaken by the Minister in this case, first by reference only to the Decision and the Reasons.
  2. [50]
    The Decision in its express terms discloses that in making the Decision the Minister did not consider all of the criteria under ss. 183 and 186 of the MRA, because even if the applicants were able to satisfy all of the criteria under those sections, the application would still be refused on the basis of public interest.  It is not disclosed which, if any, of the criteria under ss. 183 and 186 of the MRA were considered by the Minister. 
  3. [51]
    It is not necessarily the position that each and every criteria under ss. 183 and 186 of the MRA would be a factor relevant to an assessment of public interest.[31]  For example, whether the application is or is not in the approved form (s. 183(1)(a)) would not seem to have anything to do with whether the grant of the MDL Application is in the public interest.  But there are other criteria in those sections that it appears would be factors relevant to be taken into account in an assessment of whether a grant of the MDL Application is in the public interest.  For example, there is a requirement that the application be accompanied by a statement stating any activities proposed to be carried out under the MDL including work programs, amounts to be spent and studies to be performed (s. 183(m)(ii)).  The content of such a required statement would seem to include factors relevant to be considered in respect of the public interest issue (bearing in mind, for example, one of the principal objectives of the MRA is to enhance knowledge of the mineral resources of the State: s. 2(b)).
  4. [52]
    If the Decision is taken by itself, on its face, there could be no confidence that the Minister has turned his mind in any real way to identifying the factors that might be relevant to the public interest issue or that he has engaged in a process of weighing up those factors.        
  5. [53]
    Turning then to the Reasons.  There are features of the Reasons which are suggestive of no real evaluative process being undertaken by the Minister in making the Decision.  The following matters are noteworthy.
  6. [54]
    The Reasons only contain two findings on material questions of fact.  The first was:

There is significant adverse community sentiment to the granting of MDL 3040, particularly in relation to the potential negative environmental, agricultural and social impacts in the Bundaberg region, including as a precursor to mining operations.

  1. [55]
    The second was:

Fox have not proposed measures to adequately mitigate against the risks, potential negative impacts, and community concerns associated with granting MDL 3040.

  1. [56]
    In circumstances where the Reasons do not expressly make any findings as to risks or potential negative impacts, in truth the two findings seem to be different sides of the same coin.  That is, that there exists significant adverse community sentiment.  The parties appear agreed that that is the proper way to approach those findings.
  2. [57]
    Explanations for each of the two factual findings are given in the Reasons.  The first factual finding is addressed further at [27] of the Reasons; the second factual finding is addressed further at [28] of the Reasons. 
  3. [58]
    It is plain from the terms of the Reasons that the Minister, in considering community sentiment, does not make any assessment as to whether there is a reasonable basis for the identified community sentiment.  It is the fact of the public sentiment that persuades him that granting MDL 3040 is not in the public interest.  That can be seen clearly in, for example, [27](a) of the Reasons where it is stated:

While the petition does not provide evidence to support their claim of the potential impacts, the community sentiment expressed convinces me that granting MDL 3040 is not in the public interest.

  1. [59]
    Similar words are stated in [27](b)(iv) of the Reasons.      
  2. [60]
    There is some language in the Reasons suggestive of an evaluative process having been undertaken by the Minister.  At [27](b)(iii) of the Reasons it is stated (emphasis added):

He [the mayor] is entitled to bring community concerns to my attention, and I am entitled to consider those issues as part of the public interest considerations.

  1. [61]
    There is also reference to a weighing of factors in [27](e) and (f) of the Reasons – although the factors mentioned are again really only concerned with community sentiment and do not demonstrate that other relevant factors were considered and evaluated. 
  2. [62]
    At [28](g) of the Reasons it is stated:

Fox submits that I should consider Fox’s history of compliance and expenditure in relation to EPC 1523.  Fox states that it did not receive any complaints for landowners, farmers or residents whilst EPC 1523 was operational.  Fox’s expenditure on EPC 1523, past performance and rehabilitation efforts are noted however they do not balance or offset the community’s concerns with granting MDL 3040.

  1. [63]
    I consider that any suggestion that can be taken from those select extracts that an evaluative process was in fact undertaken, is overwhelmed by other language used in the Reasons.  Read as a whole, I consider that the Reasons demonstrate that the Minister did not carry out an evaluative process and did equate his finding of negative community sentiment as being sufficient, of itself, to result in the MDL Application not being in the public interest.
  2. [64]
    That was not the correct approach.  Public interest in this context is wider than a consideration of community sentiment.  Factors relevant to public interest, both for and against, ought to have been identified and then an evaluative process undertaken. 
  3. [65]
    The respondent says that it is clear that the Minister had the wider considerations before him and that is sufficient, relying upon Papillon.  The evidence that the Minister had the wider considerations before him is the fact that the Minister said he had regard to various material, which included a submission from the applicants that articulated wider considerations.  And so the respondent contends that it could not be concluded that the Minister closed his mind to the possibility of there being benefits to the community and State if the MDL Application were granted.  I do not agree.  A mere reference to the material before the Minister is not a sufficient basis from which to conclude that the Minister engaged in a practical and real way in the required evaluative process.   

The relevance of an earlier evaluative process

  1. [66]
    Both parties have urged the Court to look to pre-Decision matters to cast further light on the Decision and the decision-making process underlying same, to support their submissions.  Neither party referred me to any authority which suggested why this would be the correct approach, or what are the limits of what can be considered beyond the Decision and the Reasons.  My own research suggests that there is no clear answer to these questions.  But given the position of the parties, I will consider pre-Decision matters. 

Key pre-Decision matters

  1. [67]
    The applicants made the MDL Application in October 2019. 
  2. [68]
    In 2021 the Department prepared a Briefing Note for Preliminary View (Briefing Note).[32]  The Briefing Note contained two relevant documents: a Public Interest Assessment of Mineral Development Licence 3040 (Public Interest Assessment) and a Summary of Concerns (Summary of Concerns).[33]  These documents were provided to the Minister.  The Minister read those documents and formed a preliminary view (Preliminary View) in November 2021.[34] 
  3. [69]
    The Preliminary View said that “it would not be in the public interest to approve [the MDL Application]”, and that the Minister was “currently inclined to refuse [the MDL Application] pursuant to s 186(1)(b) of the MRA”.[35]  This, the Minister said, was due to the Minister’s concern “that the potential negative impacts of the MDL far outweigh[ed] the foreshadowed public benefits”.  The Minister continued, listing nine matters said to be of concern.[36]  Those nine matters were:
  1. (a)
    the location in proximity to significant environmental and tourism destinations in the Bundaberg area such as the Mon Repos Turtle Rookery;
  2. (b)
    the proximity to the town of Avondale and the city of Bundaberg;
  3. (c)
    the more than 200 landowners directly impacted by the area of the MDL;
  4. (d)
    the Council’s view that coal mining activities are incompatible with an area of high-value agriculture, tourism, and environmental sensitivity;
  5. (e)
    the potential impacts to privately held farmland that is used for various crops including sugar cane and other vegetables along with small scale farming;
  6. (f)
    the concerns raised by community groups in the Bundaberg Region such as the Moore Park Beach Community Association and the Bundaberg Protectors Group;
  7. (g)
    commencing development activities in a traditionally non coal mining area;
  8. (h)
    the lack of suitable infrastructure to support any potential operations that may result from MDL 3040;
  9. (i)
    whether the objectives of the MRA can be met, particularly the objectives to:
  1. (i)
    minimise land use conflict with respect to prospecting, exploring, and mining;
  2. (ii)
    encourage environmental responsibility in prospecting, exploring, and mining;
  3. (iii)
    encourage responsible land care management in prospecting, exploring, and mining; and
  4. (iv)
    ensure an appropriate financial return to the State from mining.
  1. [70]
    On 23 December 2021, the applicants’ solicitors provided a submission (First Submission) to the Minister in response to the Preliminary View.[37]  The First Submission attached material for the Minister’s consideration,[38] and made various submissions.[39]
  2. [71]
    The Department prepared an assessment of the First Submission (Assessment of Submission).[40]  Relevantly, the Assessment of Submission stated that:[41]
    1. the Minister could consider the correspondence he had received from community members was sufficient to determine that MDL 3040 is not in the public interest;
    2. the Minister had received evidence to demonstrate that the community was concerned about the environmental and social impacts of granting MDL 3040; and
    3. it was appropriate for the Minister to consider these concerns as part of the public interest and, as such, he was not required to substantiate or evaluate the concerns put forward by the community.
  3. [72]
    On 22 March 2022, the applicants’ solicitors provided a supplementary submission to the Minister (Supplementary Submission).[42]
  4. [73]
    The Department prepared an assessment of the Supplementary Submission (Assessment of Supplementary Submission).[43]  The Assessment of Supplementary Submission stated that:[44]
    1. the applicants submitted that the Minister must disregard personal opinions of the community if those opinions are not substantiated with evidence;
    2. the Minister may consider all community concerns relating to the MDL Application;
    3. the Minister was not required to substantiate the technical merits of each concern; and
    4. it was open to the Minister to refuse the MDL Application on public interest grounds.
  5. [74]
    The Department provided the Assessment of Submission and the Assessment of Supplementary Decision to the Minister at some point prior to the making of the Decision.[45]

What the parties seek to make of the pre-Decision matters

  1. [75]
    The applicants point to the distinction in the work the Department did where an evaluative process was undertaken as compared to that not being evident in the decision-making undertaken by the Minister. 
  2. [76]
    The respondent points to the Decision being made in the context of the pre-Decision matters that made it reasonable for the Minister, knowing all of the relevant considerations, to simply focus upon the factor (community sentiment) in the Decision and the Reasons that he considered determinative of the public interest issue and therefore the MDL Application. 

Conclusion about the pre-Decision matters

  1. [77]
    Having regard to the pre-Decision matters does not persuade me to reach any different conclusion than I have reached at [49] to [65] above regarding whether the required evaluative process was undertaken. 
  2. [78]
    I can accept that pre-Decision, during the decision-making process, the Briefing Note to which attachment 2 is the Public Interest Assessment (covering many public interest type considerations) was akin to the type of evaluative process that I have concluded ought to have been undertaken by the Minister in reaching the Decision.  By the Preliminary View the Minister expresses the view then reached that the potential negative impacts far outweigh the foreshadowed public benefits.  The Preliminary View was plainly communicated with a view to giving the applicants natural justice on the issue that was likely to lead to the MDL Application being rejected. 
  3. [79]
    But the evaluative process needed to be undertaken by the Minister in reaching the Decision and the Decision and Reasons do not disclose (expressly or by inference) that in fact occurred.  The respondent says that the Reasons are to be considered in the context of only dealing with the point selected out by the Minister as potentially determinative - community sentiment - even though the Minister has had regard to the applicants’ submissions in response to the Preliminary View that deals with wider issues.  The selection out then occurs in the wider context that has taken place.  But I think that is to infer too much from the terms of the Decision and Reasons that do not make that sufficiently clear, even bearing in mind what is set out at [21] above.        
  4. [80]
    The above findings are sufficient to dispose of the proceeding.   

Other issues for comment 

Whether community sentiment had a reasonable basis

  1. [81]
    The applicants accept that the mere fact of adverse community sentiment is a factor that the Minister was entitled to take into account in the assessment of whether the grant of MDL 3040 was in the public interest. 
  2. [82]
    However, the applicants also submit that it was a relevant factor to be taken into account by the Minister whether the adverse community sentiment had a proper reasonable basis.  They contend that it was also a relevant factor that the applicants had submitted that there was no proper reasonable basis for the adverse community sentiment.  Accordingly, in failing to consider whether adverse community sentiment had a proper reasonable basis, and in failing to consider the applicants’ submissions about that, the applicants allege that the Minister erred in law in failing to consider a relevant consideration. 
  3. [83]
    The applicants further submit that the failure to consider whether adverse community sentiment had a proper reasonable basis might also lead to unreasonableness in the Decision, if in fact there was no proper reasonable basis for the adverse community sentiment. 
  4. [84]
    The identification of the factors relevant to the public interest issue was for the Minister.  The discretion in that respect was very wide.  The factor the Minister considered to be most relevant to the public interest was adverse community sentiment.  The existence of that community sentiment (whether properly held or baseless) is a factor that can rationally bear on the question of public interest and the Minister was therefore entitled to consider it. 
  5. [85]
    If a proper basis existed for the adverse community sentiment, that basis might provide a separate factor that the Minister could consider relevant to the question of public interest.  Alternatively, the existence of the proper basis might rationally increase the weight that the Minister could put on the factor that there was adverse community sentiment.  Ultimately, these are matters for the Minister’s discretion. 
  6. [86]
    The proper construction of the MRA did not require that the Minister consider whether there was a proper reasonable basis for the community sentiment to which he proposed to have regard.  There was no error of law in that respect.   

Other relevant factors allegedly not taken into account

  1. [87]
    The applicants submit that certain matters in s. 183 of the MRA were inherently relevant to the assessment of the public interest and therefore ought to have been considered by the Minister (namely, ss. 183(1)(m) and (n)).
  2. [88]
    I have dealt with this allegation generally at [51] above.  Insofar as the applicants say that the factors in s. 183(1)(m) and (n) of the MRA are to be construed as mandatory factors for consideration in the assessment of public interest by the Minister, that would be to express any obligation too broadly and too definitively. 

Irrelevant factors allegedly taken into account

  1. [89]
    The applicants submit that insofar as community concerns related to matters not actually forming part of the MDL Application, those were irrelevant considerations and ought not have been taken into account by the Minister.[46]  For example, if the community concern related to actual mining or open cut mining, that would be irrelevant as MDL 3040 would not authorise actual mining and no open cut mine was in contemplation.   
  2. [90]
    In that same vein the applicants further submit that insofar as in the assessment of the MDL Application the Minister had an eye to or considered matters that might be relevant to an ML application, that was in error. 
  3. [91]
    The respondent disagrees.  It submits that the grant of an MDL can involve some assessment of it being a precursor to the possible grant of an ML. 
  4. [92]
    There is no dispute between the parties that the Minister did in fact give some consideration in the assessment of the MDL Application to the future grant of an ML.  Whether that properly occurred under s. 186(2) MRA is contentious.    
  5. [93]
    There is no error in the Minister’s approach to this issue.  The scheme of the MRA is that an applicant will generally proceed through the process of an EPC, an MDL and then an ML.  There is nothing wrong in principle with the Minister, in considering the public interest, in forward looking to the next step in the process.[47]  It is consistent with the objects of the MRA set out in s. 2 to do so (which concern prospecting, exploring and mining).

Unreasonableness

  1. [94]
    The applicants submit that the Decision was not one any reasonable decision maker could have made in circumstances where no consideration was given to whether in fact there was a proper basis for the community concerns.[48]   It appears plain from the terms of the Decision itself that the Minister specifically did not look at the underlying merits of the community concerns and was prepared to proceed simply on the basis that there were such concerns.
  2. [95]
    Insofar as the Minister referred to or relied upon other issues outside of community sentiment, namely the potential negative impacts, that is said to be unreasonable in circumstances where there was no articulation of the potential negative impacts at all in the Reasons.  
  3. [96]
    The relevant principles to be applied in respect of this ground of review are conveniently set out:
    1. by Bond J in Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 at [155]-[162] substantially confirming what his Honour said in WB Rural Pty Ltd v Commissioner of State Revenue [2018] 1 Qd R 526;
    2. by the High Court in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408.
  4. [97]
    I accept the applicants’ submissions that:
    1. where legislation contains a statutory discretionary power, the standard to be applied in the exercise of that power is derived not only from the legislation but also from a presumption of the law, namely that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably;[49]
    2. the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory regime in any given case; whether a particular exercise of power is unreasonable will “inevitably be fact dependent”.[50] 
  5. [98]
    Without detracting from the conclusion I have reached about the Minister not having undertaken the required evaluative process, I would not otherwise conclude that there has been an unreasonable exercise of power that amounts to a proper ground of challenge to the Decision. 
  6. [99]
    The Minister in considering the issue of public interest:
    1. was entitled to have regard to community sentiment both in relation to the MDL Application and an ML or mine that might be a natural next step after an MDL;
    2. was not required to delve into the factual basis for such community sentiment unless he considered it necessary or desirable to do so;
    3. was at liberty to act on the information he had before him (and was not required to examine why other material was not put before him or what other material could have been put before him). 
  7. [100]
    There is no unreasonableness in the Decision justifying the intervention of the Court, save in respect of the error of law identified.   

Conclusion

  1. [101]
    The Decision involved an error of law in that the Minister did not carry out the evaluative process of public interest required by s. 186(2) of the MRA.  The other separate grounds for challenging the Decision are not made out.  

Orders

  1. [102]
    I order that the Decision is set aside.  I will hear from the parties with respect to the costs of the proceeding.  

Footnotes

[1] Affidavit of Peter Stokes filed 20 May 2022 (Stokes affidavit), [17]; PWS-14 at p. 401.

[2] Applicants’ Statement of Facts, Issues and Contentions (ASFIC) at [3]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [3]; Stokes affidavit at [4]; PWS-1 at pp. 1-66.

[3] ASFIC at [4]; RSFIC at [4].

[4] Stokes affidavit, PWS-14 at p. 401.

[5] Stokes affidavit, PWS-16 at pp. 407-416.

[6] ASFIC at [42]; RSFIC at [42].

[7] ASFIC at [43]; RSFIC at [43].

[8] Stokes affidavit, PWS-15 at pp. 405-406.

[9] Stokes affidavit, PWS-16 at pp. 407-416.

[10] Stokes affidavit, PWS-16 at pp. 408-410.

[11] Stokes affidavit, PWS-16 at pp. 410-411. This included ss. 2, 186, 386M and 386N of the MRA.

[12] Stokes affidavit, PWS-16 at p. 411.

[13] Stokes affidavit, PWS-16 at pp. 411-412.

[14] Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

[15] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [63]; Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

[16] Applicants’ outline of submissions at [5].

[17] Applicants’ outline of submissions at [7].

[18] Applicants’ outline of submissions at [75](a).

[19] Applicants’ outline of submissions at [75](b).

[20] Applicants’ outline of submissions at [75](c).

[21] Respondent’s outline of submissions at [10].

[22] Respondent’s outline of submissions at [10].

[23] Respondent’s outline of submissions at [11].

[24] Respondent’s outline of submissions at [12]–[16] citing O'Sullivan v Farrer (1989) 168 CLR 210; Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433; Papillon Mining & Exploration Pty Ltd (in liq) v Wilson [2010] 1 Qd R 452; ERO Georgetown Gold Operations Pty Ltd v Cripps, Minister for Natural Resources & Mines [2015] QSC 1.

[25] There is a definition at s. 318AK of the MRA, but that is limited to operation in relation to Chapter 8 of the MRA.

[26] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; AB v Western Australia (2011) 244 CLR 390.

[27] Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 264 CLR 636 at 667 [99(v)] per Gummow, Hayne, Crennan and Bell JJ citing Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320 at 329 [13], 354 [82], 356 [92].

[28] DPP v Smith [1991] VR 63, 76.

[29] Harburg Investments Pty Ltd v Mackenroth [2005] Qd R 433 at [3] per Macpherson JA.

[30] (2012) 246 CLR 379 at 402.

[31] Contrary to the applicants’ submission at [80] of its written submissions, I do not accept that just because an application for an MDL must satisfy the requirements of s. 183 means that those are mandatory considerations that must be taken into account for the purpose of an assessment of public interest. This is sufficient to dispose of “issue two” identified by the applicants in the general terms in which it is drafted.   

[32] ASFIC [5]-[6]; RSFIC [5]-[6].

[33] ASFIC [7]; RSFIC [7].

[34] ASFIC [8]; RSFIC [8].

[35] ASFIC [20]; RSFIC [20].

[36] ASFIC [21]; RSFIC [21].

[37] ASFIC [27]; RSFIC [27].

[38] ASFIC [30]; RSFIC [30].

[39] ASFIC [29]; RSFIC [29].

[40] ASFIC [31]; RSFIC [31].

[41] ASFIC [32]; RSFIC [32].

[42] ASFIC [34]; RSFIC [34].

[43] ASFIC [36]; RSFIC [36].

[44] ASFIC [37]; RSFIC [37].

[45] ASFIC [38]; RSFIC [38].

[46] This is the crux of “issue three” advanced by the applicants.

[47] Including as to community sentiment in relation to mining that may ultimately occur under an ML.

[48] This is the crux of “issue four” advanced by the applicants.

[49] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63].

[50] Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 at [48].

Close

Editorial Notes

  • Published Case Name:

    Fox Coal Pty Ltd & Anor v Minister for Resources

  • Shortened Case Name:

    Fox Coal Pty Ltd v Minister for Resources

  • Reported Citation:

    (2023) 16 QR 309

  • MNC:

    [2023] QSC 197

  • Court:

    QSC

  • Judge(s):

    Hindman J

  • Date:

    29 Sep 2023

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB v State of Western Australia (2011) 244 CLR 390
2 citations
Jump To
Cite 1 - (2011) 244 CLR 390
Cite 2 - (2011) 244 CLR 390
Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
2 citations
Jump To
Cite 1 - [2019] QSC 124
Cite 2 - [2019] QSC 124
Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
2 citations
Jump To
Cite 1 - (1996) 137 ALR 281
Cite 2 - (1996) 137 ALR 281
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
Dodds v Comcare Australia (1993) 31 ALD 690
2 citations
Jump To
Cite 1 - (1993) 31 ALD 690
Cite 2 - (1993) 31 ALD 690
DPP v Smith [1991] VR 63
2 citations
Jump To
Cite 1 - [1991] VR 63
Cite 2 - [1991] VR 63
ERO Georgetown Gold Operations Pty Ltd v Minister for Natural Resources and Mines [2015] QSC 1
2 citations
Jump To
Cite 1 - [2015] QSC 1
Cite 2 - [2015] QSC 1
Harburg Investments Pty Ltd v Mackenroth[2005] 2 Qd R 433; [2005] QCA 243
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 433
Cite 2 - [2005] 2 Qd R 433
Harburg Investments Pty Ltd v Mackenroth [2005] Qd R 433
2 citations
Jump To
Cite 1 - [2005] Qd R 433
Cite 2 - [2005] Qd R 433
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
1 citation
Jump To
Cite 1 - (2002) 210 CLR 438
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1
2 citations
Jump To
Cite 1 - (2009) 112 ALD 1
Cite 2 - (2009) 112 ALD 1
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
1 citation
Jump To
Cite 1 - (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280
1 citation
Jump To
Cite 1 - (2014) 308 ALR 280
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
2 citations
Jump To
Cite 1 - (2018) 357 ALR 408
Cite 2 - (2018) 357 ALR 408
Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248
2 citations
Jump To
Cite 1 - (2010) 190 FCR 248
Cite 2 - (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
1 citation
Jump To
Cite 1 - (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
O'Sullivan v Farrer (1989) 168 CLR 210
3 citations
Jump To
Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Cite 3 - (1989) 168 CLR 210
Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320
2 citations
Jump To
Cite 1 - (2010) 241 CLR 320
Cite 2 - (2010) 241 CLR 320
Papillon Mining & Exploration Pty Ltd v Minister for Mines and Energy[2010] 1 Qd R 452; [2009] QSC 97
3 citations
Jump To
Cite 1 - [2010] 1 Qd R 452
Cite 2 - [2010] 1 Qd R 452
Cite 3 - [2010] 1 Qd R 452
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
2 citations
Jump To
Cite 1 - (2012) 246 CLR 379
Cite 2 - (2012) 246 CLR 379
Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 264 CLR 636
2 citations
Jump To
Cite 1 - (2012) 264 CLR 636
Cite 2 - (2012) 264 CLR 636
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
2 citations
Jump To
Cite 1 - (1975) 132 CLR 473
Cite 2 - (1975) 132 CLR 473
South Australia v O'Shea (1987) 163 C.L.R 378
1 citation
Jump To
Cite 1 - (1987) 163 C.L.R 378
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
2 citations
Jump To
Cite 1 - (2003) 75 ALD 630
Cite 2 - (2003) 75 ALD 630
WB Rural Pty Limited v Commissioner of State Revenue[2018] 1 Qd R 526; [2017] QSC 141
1 citation
Jump To
Cite 1 - [2018] 1 Qd R 526

Cases Citing

Case NameFull CitationFrequency
Breakwater Pacific Pty Ltd v Chief Executive, Department of Resources [2024] QSC 1072 citations
1

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