The High Court is set to determine whether New Acland Coal’s (NAC) application for an extension of the New Acland open-cut coal mine (Mine) (Stage 3 Project) must be determined afresh as a result of bias on the part of the Land Court of Queensland.
Snapshot
- The Mine is running out of coal and mining jobs are set to be lost unless the Stage 3 Project is approved.
- A community group has been granted special leave to argue before the High Court that the Land Court has to re-determine the Stage 3 Project afresh because the Land Court’s decision was affected by bias.
- This case is significant not only for the local community and mine workers, but also raises important legal questions about the effects of a finding of bias on the part of a decision-maker.
Background
The Mine is located about 20 km north of Oakey in southern Queensland, about 130 km west of Brisbane.
The Mine has operated continuously since 2002. In 2007, NAC sought approval for the Stage 3 Project to extend the life of the Mine. However, the future of the Mine remains unclear without approval for the Stage 3 Project.
Land Court (Smith) recommended refusal
A number of interested parties objected to NAC’s application for two mining leases and an amendment to an environmental authority (Applications) for the Stage 3 Project, including the Oakey Coal Action Alliance Inc (Alliance).
The Land Court heard the matter from March 2016 to April 2017. At a hearing in February 2017, Member Smith warned NAC that the comments NAC had reportedly made to the media about the Land Court causing delays could be a contempt of court. In May 2017, Member Smith recommended that the Minister refuse the Applications on the grounds of noise, groundwater and intergenerational equity (Substantive Issues).
Supreme Court returned matter to Land Court on Substantive Issues
NAC commenced judicial review proceedings in the Supreme Court, relevantly alleging that Member Smith’s decision contained errors regarding the Substantive Issues and was affected by bias.
In May 2018, Justice Bowskill published reasons and made orders allowing the appeal and remitting the matter to the Land Court to reconsider the Substantive Issues only. Her Honour dismissed NAC’s ground of appeal based on bias.
Reconstituted Land Court (Kingham) recommended approval
The Alliance appealed against Justice Bowskill’s decision to the Court of Appeal relevantly on a Substantive Issue. NAC cross-appealed on the basis that, if the Alliance’s appeal succeeded, Justice Bowskill erred on the bias issue relating to Member Smith.
Meanwhile, pursuant to Justice Bowskill’s order, the matter came back to the Land Court. In November 2018, reconsidering the Substantive Issues only, President Kingham recommended that the Applications be granted. Subsequently, the Department of Environment and Science granted NAC’s application to amend its environmental authority.
Court of Appeal found Member Smith biased
In reasons published in September 2019 and orders made in November 2019, the Court of Appeal allowed NAC’s cross-appeal and declared that Member Smith had breached the requirements of procedural fairness.
The Court of Appeal did not remit the matter to the Land Court because President Kingham had already re-determined the matter, and there was no appeal from that decision.
High Court granted Alliance special leave to appeal
On 5 June 2020, the High Court granted the Alliance special leave to appeal from the relief granted by the Court of Appeal. The transcript of the oral hearing indicates that the issue will be whether President Kingham’s decision was legally void given the uncontested fact that Member Smith’s decision was legally void because of bias.
Next steps
The matter will be heard by the full bench of the High Court.
If the Alliance succeeds, the matter is likely to be remitted to the Land Court to be re-determined afresh. If NAC succeeds, this will clear a major road block to the Stage 3 Project going ahead.
This matter is not only significant for the local community and mine workers. It also raises important legal questions as to the interaction between a decision affected by bias and subsequent decisions. We will follow this matter and provide updates as it develops.
By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Zhongwei Wang, Solicitor.
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.