The applicant contended that the delegate erred for the purposes of s 5(1)(f) of the ADJR Act by failing to set out or identify the correct test and that "the test that the delegate should have applied was whether the action is so closely associated with the production of unconventional gas as to be integral to it": AS[47] and [48]. The applicant also submitted that "the delegate relied on the Guidelines as to the content of the statutory test" rather than the statute itself: AS[49].
Reasons of administrative decision‑makers should be read practically and in a balanced and common‑sense manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; 185 CLR 259 at 271-2.
The issue is whether - reading the reasons fairly and in context - error has been shown, not whether something could have been better expressed or was unhappily phrased. As to what inferences might be drawn from what is, and what is not, stated in the reasons, it is generally relevant to consider the nature of the decision‑making body and the particular statutory context: Stojic v Deputy Commissioner of Taxation[2018] FCA 483; 107 ATR 741 at [104]; Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia[2012] FCA 764; at . The statutory context here included that the statute addressed an issue of significant public and environmental importance. The Minister was required to take public comments into account: s 75(1A). The Minister had to decide whether the action was a controlled action, and which provisions of Pt 3 of the EPBC Act were "controlling provisions", within 20 business days of receiving the referral: s 75(5). Although required to make the decision in "studied haste" ( ; at ; at [26]), the Minister was required to provide reasons within 28 days of a request: s 77(4)(b). In the present case, the reasons were in fact provided after 28 days had elapsed.
The delegate identified ss 24D and 24E and made her decision by reference to those provisions. The delegate's conclusion was that, although the proposed action was for the movement of gas produced by the NG project (R[83]), ss 24D and 24E were not controlling provisions for the proposed action because the proposed action was not for the extraction of CSG and was not integral to the extraction of CSG: R[90] and [91].
In reaching that conclusion, the delegate was addressing the correct (amended) provisions. The reasons included references to "unconventional gas development", being a phrase used in the amended provisions, in the context of ss 24D and 24E (emphasis added):
[2]
A water resource, in relation to a large coal mining development or unconventional gas development (sections 24D and 24E)
The majority of public comments provided on the referral referred to impacts on water resources and specified that the project should be determined a controlled action due to significant impacts on a water resource, in relation to a large coal mining development or unconventional gas development (sections 24D and 24E) (referred to as the water trigger)
[3]
The delegate was not obliged to set out the statutory provisions in full as a condition to making a legally valid decision: Australian Conservation Foundation Inc v Minister for the Environment[2016] FCA 1042; 251 FCR 308 at [162].
I do not accept that the delegate failed to identify the correct statutory provisions.
As mentioned, the applicant also contended that the delegate's references to "extractive process" demonstrated that the delegate substituted the Guidelines for the statute: AS[49].
The delegate's references to CSG "extractive process" or "extraction activities" do not suggest that the delegate had the wrong provisions in mind or that she substituted the Guidelines for the statute. The NG Project was one for coal seam gas extraction and not a different form of "unconventional gas production". The definition of "unconventional gas production" refers to "extraction, recovery or intentional release". The context was that the proposed activity was one to transmit, via pipeline, gas which had been extracted and processed by the NG Project. In that context, there was nothing unusual about the delegate referring to the "extractive process". That reference, and other references to extraction, are unremarkable and to be expected. The connection of the proposed activities with the extraction process was a centrally relevant consideration and the word extraction is used in the definition of "unconventional gas production".
The delegate did not use the Guidelines as a substitute for the statute.
[4]
The delegate did not treat the examples in the Guidelines as exhaustive
[5]
Contrary to the applicant's submission, the delegate did not treat the examples in the Guidelines as "exhaustive": AS[53] and [54]. In her reasons at R[82], the delegate stated that the Guidelines "expands on activities that could be considered an integral part of the extractive process and are therefore covered by the water trigger" and referred to "[a]n example" in the Guidelines (emphasis added). The Guidelines made it clear that the relevant examples were just that and that proposals would be considered on a case by case basis. The relevant part of the Guidelines stated (CBB790):
[6]
While proposals will be considered by the department on a case-by-case basis, the following are examples of activities that are likely to be considered an integral part of the extractive process:
[7]
construction, operation and decommissioning of open-cut and underground coal mines or CSG wells
construction, operation and decommissioning of infrastructure to provide water supply for use in the extraction of CSG or coal, including the use of water in activities such as cooling cutting surfaces and mining equipment, or dust suppression
management of water generated as a result of extraction of CSG or coal, such as holding dams or water treatment facilities
disposal of water produced from coal mining or CSG extraction into streams/rivers
management of waste generated as a result of extraction of CSG or coal, such as spoil heaps
construction of infrastructure to provide power necessary for the operation of a mine, including relocated power lines
construction of infrastructure to enable mining or CSG operation inputs which are integral to coal or CSG extraction to be received, and product, equipment or waste which are integral to coal or CSG extraction to be taken off the mine‑site
[8]
The department has considered the Significant Impact Guidelines 1.3 in detail and although the proposed pipeline is for the movement of gas, the proposed action is not considered integral to the CSG extractive process given:
a) it does not provide water, electricity or other resources necessary in the extraction process;
b) it does not move equipment or waste offsite and it is not necessary for the management or movement of equipment or waste; and
c) the infrastructure required to move product from the gas wells has already been approved through the Narrabri Gas Project. Activities approved under the Narrabri Gas Project included necessary pipelines to transfer gas from the gas wells to the processing and compression facilities
[9]
Reading the reasons fairly, the delegate considered and used the Guidelines to assist in assessing the connection between the proposed action and the relevant "unconventional gas development". The delegate accepted that the proposed action had a connection with the extraction of the CSG at the NG Project because the proposed pipeline was for the movement of gas once processed, but - notwithstanding - concluded that the connection was insufficient for the purposes of ss 24D(1) and 24E(1).
[10]
The existing pipelines to move CSG from wells to processing and compression facilities
[11]
Pipelines which move extracted CSG from the wells to the processing and compression facilities within the NG Project have already been approved. The delegate referred to that fact at R[83(c)]. The applicant contended that the delegate erred by treating that fact as meaning that the proposed NL Pipeline transmitting processed natural gas away from the NG Project to the consumer market via the HG Pipeline could not be integral in the relevant sense: AS[55] and [56].
This contention does not accurately reflect the delegate's reasoning. The delegate examined the Guidelines and the examples in it and assessed the particular facts of the case before her to reach a decision. One of the matters to which the delegate had regard in assessing the connection between the proposed activity and "unconventional gas development" was the fact that the proposed activity did not transmit extracted CSG from the wells to the processing facilities within the NG Project from which the end product would be transmitted.
The fact that the NL Pipeline did not move CSG from the wells to the processing and compression facilities was plainly relevant. If the NL Pipeline was involved in moving CSG from extraction wells to processing and compression facilities within the NG Project, then the proposed activity was far more likely to "involve" "unconventional gas development" because the pipelines might be seen to be integral to the production of gas in the processing and compression facilities.
Contrary to the applicant's contention, the delegate did not reason that, because the NL Pipeline was not involved in moving CSG from extraction wells to processing and compression facilities, it could not fall within s 24D or s 24E.
[12]
The delegate did not treat existing infrastructure as excluding other pipelines as integral
[13]
The applicant contended that the delegate erred in finding that the proposed NL Pipeline "was not integral to CSG extraction because there was some existing infrastructure to move gas offsite": AS[57]. In advancing this contention, the applicant focussed on the delegate's reasons at R[87] and R[88]. It is necessary to read those paragraphs in the context of the immediately preceding paragraphs.
The delegate noted that many public comments contended that construction of the proposed pipeline was "integral" to the NG Project because the NSW Development consent for the project requires a gas transmission pipeline: R[84]. The delegate referred to condition A9 of the NSW Development consent which, amongst other things, required the Proponent not to commence Phase 2 until a planning approval had been granted for a transmission pipeline to deliver gas from the NG Project to the domestic gas network: R[84]. Phase 2 was one of four stages referred to in condition A5 and comprised construction activities for production wells and related infrastructure: R[85].
The delegate then stated at R[86] (emphasis added):
[14]
The department notes that the NSW Statement of Reasons for the Narrabri Gas Project at [17] justified the inclusion of condition A9 due to uncertainties about how the project would connect to the larger gas network. At the time of the decision, the proponent was not seeking approval for the construction of a new pipeline or extension of an existing pipeline. The department advised that this condition is inherently a planning step, designed to ensure that the construction of the Narrabri Gas project would not be undertaken without certainty for the energy market.
[15]
Paragraph 17 of the NSW Statement of Reasons in respect of the NG Project (referred to in the quote above) stated:
[16]
Prior to producing gas, the [Proponent] will need to connect the Project to a gas pipeline network, which at present is not available in proximity to the Project Area. The [Proponent] is not seeking approval for a new pipeline or an extension to an existing pipeline as part of this Project. The Department notes at ARP 72 that there are two possible options for the pipeline connection; however, there are uncertainties with both options. Therefore, the [Proponent] agreed with the Department to accept a condition on any development consent for this Project requiring it to ensure there is an approved pipeline connection to the Project prior to starting Phase 2 construction and that this connection is in place and commissioned prior to starting any gas production under Phase 3.
[17]
Returning to the delegate's reasons, the delegate then stated at R[87] and [88]:
[18]
Furthermore, the department suggested that condition A10 of the NSW development consent states that condition A9 of the NSW development consent does not prevent gas from the development being sent to the Wilga Park Power Station or any local industry. Condition A10 states:
[19]
A10. Condition A9 does not prevent gas from the development being sent to the Wilga Park Power Station or any local industry.
[20]
Given the above NSW condition is a planning step, the department advised that the proposed pipeline is not integral to extraction activities associated with the Narrabri Gas Project. In particular, the department advised that gas is already being obtained and processed from Narrabri Gas appraisal wells referred under EPBC 2013/6918 (determined to be not a controlled action if taken in a particular manner on 1 October 2013). This gas is already being supplied to the Wilga Park Power Station.
[21]
The delegate was considering the public comments to the effect that the NL Pipeline was integral because the NSW Development consent required a gas transmission pipeline. The delegate accepted the Department's view that the relevant NSW Development consent condition was in the nature of a "planning step". That view was supported by the fact that some CSG was already being extracted from NG Project appraisal wells, processed and then transmitted to the Wilga Park Power Station.
Contrary to the applicant's contention, the delegate did not conclude that the proposed NL Pipeline "was not integral to CSG extraction because there was some existing infrastructure to move gas offsite": AS[57].
[22]
The contention that the NL Pipeline was required for commercial and legal reasons
[23]
The applicant contended that the delegate erred by failing to consider that the construction and operation of the NL Pipeline under the proposed action was required for the production of gas to proceed under the NG Project, both as a practical and legal matter: AS[59]. The applicant's argument was, in essence, that the proposed action is caught by the water triggers because it is "critical to enable gas production" as "a practical commercial matter as well as a legal matter": AS[59] to [63].
The applicant contended that "transport of the gas to market is not a distinct and separate step from its extraction, but rather a necessary and critical aspect of the production process" as well as "a legal requirement under the development consent for the [NG Project] for gas production to proceed": AS[60] and [62]. In support of that submission, it referred to Harveyv Minister for Primary Industry and Resources[2024] HCA 1; 278 CLR 116 at [63] (Gageler CJ, Gordon, Steward and Gleeson JJ), in which the High Court observed that the "treatment, processing, storage and transport of a mine's product following extraction of a mineral may also constitute a part of a given mining project" (applicant's emphasis): ARS[14].
As the applicant acknowledged, reference to different terms in different statutory schemes risks distracting attention from the particular words in the statutory scheme in issue. In any event, as the Minister submitted, the reference in Harvey at [63] to "transport of a mine's product" as possibly forming part of a given mining project are not necessarily as helpful to the applicant as it submits.
The expression "mining operations" is wide and not inflexible: Parker v Federal Commissioner of Taxation[1953] HCA 80; 90 CLR 489 at 494 (Dixon CJ, Webb J agreeing). To fall within the expression, operations must pertain to mining, but the cases do not support a conclusion that transport of the end product after production falls within the phrase.
The fact that "mining operations" are generally seen to have come to an end once the end product is produced was referred to by the High Court in Harvey at [63(3)]:
[24]
Generally the mining operation will continue until there has been produced that which is the object of the particular taxpayer's operation of mining.
[25]
That proposition finds support in Federal Commissioner of Taxation v Broken Hill Pty Co Ltd[1968] HCA 16; (1969) 120 CLR 240. The High Court (Barwick CJ, McTiernan and Menzies JJ), after considering (at 272-3) what would comprise "mining operations" in various industries and circumstances, stated (at 274):
[26]
The taking away from the mining property of ore which has been mined, whether that be done by the mining company or by someone else, is a step subsequent to the conclusion of the mining operations.
[27]
In Commissioner of Taxation v Northwest Iron Co Ltd[1986] FCA 93; 9 FCR 463, the Full Court (Bowen CJ, Toohey and Lockhart JJ) held that a pipeline which was essential to producing the taxpayer's end product (pellets) fell within the taxpayer's "mining operations": at 474-5. The pipeline was "not different in essence from a necessary conveyor line conveying material from one section to another within a mining complex": at 475. The case does not support a proposition that transport of the pellets after production would form part of "mining operations".
Indeed, absent close association with extraction, or integration with the actual mining process, activities directed to improving that which is extracted often fall outside the ambit of the "mining operations". Referring to Northwest Iron¸ the High Court in Harvey stated at [63(6)]:
[28]
Activities directed to improving that which is extracted, for example pelletising, may fall outside the ambit of the 'mining operation'. However, they may form part of the mining operation where the activity is closely associated with the actual extraction of the mineral. Normally this close association may be indicated by physical proximity, but lack of physical proximity will not necessitate the conclusion that the mining operation has concluded: Northwest Iron [(1986) 9 FCR 463]. The degree of integration of the activity with the actual mining process will, obviously, thus be relevant.
[29]
In Federal Commissioner of Taxation v Reynolds Australia Alumina Ltd[1987] FCA 638; 18 FCR 29 at 35 (referred to at fn 82 in Harvey at [63]), Beaumont J emphasised the importance of the connection of the activity in question to the various activities at the mine site, especially the recovery, withdrawal and movement of the product. His Honour observed (citations omitted):
[30]
... [T]he ultimate question of characterisation ... is whether the conveyor facility may fairly be seen to be part of the activities carried on at the mine site in the sense of being ancillary to those activities or whether, on the other hand, the conveyor facility should be perceived as something which stands apart from, and is independent of, the activities at the mine site.
The conveyor facility should, I think, be seen as something ancillary to the activities at the mine site and therefore part of the mining operations conducted by the respondents. As has been said, to determine when mining operations begin and end is one of fact and degree. The considerations which, in my view, indicate a sufficient connection for present purposes between the conveyor operations and the actual process of winning the product at the mine site are as follows: First, the circumstance that the conveyor belt activity commences within the mine site area is, I think, significant. It emphasises the physical proximity between the various activities at the mine site, especially the recovery, withdrawal and movement of the mineral product. The conveyor is anchored, so to speak, in the mine site. Secondly, the conveying of the product is part of a single, integrated operation which commences at the surge pile and continues until the product is dumped and then blended at the stockpiles at the refinery. Given this proximity and this integration, any attempt to fragment the respondents' activities into a number of distinct compartments must run the risk of producing an artificial and unrealistic result.
[31]
In Robe River Mining Co Pty Ltd v Commissioner of Taxation[1990] FCA 648; 21 ATR 1068, referred to at fn 83 in Harvey at [63], Lee J accepted that railway equipment used to transport iron ore to a port where a crushing facility was located constituted the use of machinery in carrying out mining operations: at 1079.
Neither Reynolds, nor Robe River, support a proposition that transport of the final product away from the production facility constitutes a part of mining operations.
In any event, as has been mentioned, these cases concerned a quite different statutory context, and risk distracting attention away from the critical issues. It is necessary to focus on the particular terms of the EPBC Act, construed in context, including the statutory objects: Harvey at [64].
Sections 24D(1) and 24E(1) require the delegate to consider whether the action "involves" "unconventional gas development". This requires the delegate to consider whether the action involves "any activity involving unconventional gas production" (emphasis added). The definition of "unconventional gas production" refers to "extraction, recovery or intentional release ... of gas" from specified sources. The definition does not expressly refer to the transmission of gas after extraction and processing. Put another way, the definition does not expressly refer to the transmission of gas after unconventional gas production. Of course, it is necessary to keep steadily in mind that an issue raised by the definitions is whether the activity is one "involving" unconventional gas production. An activity can "involve" unconventional gas production without in fact being unconventional gas production - see [22] above. An activity can "involve" extraction or recovery of gas without in fact being an extraction or recovery activity. To take a simple example, processing and compressing extracted gas at a mine site might be seen to be an "activity involving unconventional gas production" or an activity involving extraction given its close association to, and integration in, the production process.
For practical, commercial and legal reasons, the Proponent would be required to ensure that the CSG once extracted is not released into the environment and would be required, after the extracted CSG is processed, to transmit the final product to market. None of that necessarily makes the NL Pipeline a "proposed action" which "involves" "unconventional gas development" or "unconventional gas production".
It was open for the delegate to conclude, and the applicant has not established that the delegate erred in concluding, that the "proposed action" (which included the construction and operation of the NL Pipeline to transmit gas to the market after CSG had been extracted and processed) was not an action which "involves" "unconventional gas development". It was open to conclude that the series of activities (see ss 523 and 528) comprising the NL Pipeline action (including the transmission of the extracted and processed gas from the NG Project) did not involve "unconventional gas production", and that the series of activities was not integral to the "extraction, recovery or intentional release ... of gas".
It is unnecessary to decide whether the transmission of gas after extraction and processing could never be an action which "involves" "unconventional gas development", as I understood the Minister to submit. It is sufficient for the resolution of this case to observe that the delegate's conclusions were open on the material before the delegate and that the delegate's reasons do not demonstrate any error within s 5(1)(f) of the ADJR Act.
The applicant's submission that the delegate's decision is inconsistent with the result in ACF is not sustainable. As mentioned, ACF concerned a proposed action which would involve harvesting and storing water to provide a secure and reliable alternative water supply to be used in the extractive process: ACF at [75] (quoting the relevant delegate's reasons at [100]). The delegate considered that the proposed activity was "distinct from the process of extracting coal from a mine" and that the "extraction of coal does not form part of the proposed action". Unsurprisingly, Perry J concluded that the action "involved" "large coal mining development", because it was so closely associated with the mining of coal as to be integral to it, such that the proposed action involved a coal mining activity within the definition of "large coal mining development" in s 528 of the EPBC Act: at [114]. The present case is quite different. It was uncontroversial that the proposed action (the NL Pipeline) was for transmitting the final product, after extraction and processing. The NL Pipeline would not be used in the process of extraction or processing. Transmission of gas would occur after production. The NL Pipeline would be physically connected to the NG Project, but not used within it to move CSG from extraction wells to processing and compression infrastructure. It was open to the delegate to conclude that the NL Pipeline did not involve unconventional gas production or unconventional gas development.
The applicant has not established that the delegate erred in concluding that ss 24D(1)(a)(i) and 24E(1)(a)(i) were not engaged.
[32]
Whether or not another conclusion was open, the applicant has not established that the delegate failed to identify the correct statute, or treated the Guidelines as a substitute for the statute, or otherwise erred in applying the statute. The application for judicial review must therefore be dismissed.
[33]
I certify that the preceding seventy‑three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.
Parties
Applicant/Plaintiff:
Mullaley Gas & Pipeline Accord (MGPA) Inc
Respondent/Defendant:
Minister for Environment and Water [2025] FCA 1526
Legislation Cited (5)
Decisions (Judicial Review) Act 1977
Repair (Consequential Amendments) Act 2023
Protection and Biodiversity Conservation Act 1999
Planning and Assessment Act 1979
Court Rules 2011
Cases Cited (13)
Australian Conservation Foundation Inc v Minister for the Environment[2021] FCA 550; 390 ALR 157