In March 2022, the firm commenced a proceeding in the Federal Court against the Commonwealth Minister for the Environment and Chinese state owned mining company MMG Australia. The firm proudly acted for Bob Brown Foundation. In January 2022, the Minister had granted approval to MMG to carry out drilling and other exploratory operations in the Tarkine, west of Rosebery, where MMG wants to establish a tailings dam. Despite the unquestioned presence of the Tasmanian Masked owl – listed as vulnerable to extinction under the Environment Protection and Biodiversity Conservation Act 1999 – the Minister made no reference to the owl in her decision to allow the project to proceed. In her reasons for the decision, while noting the possible presence of the owl in the area and the need for further studies and investigation, she said she had taken account of the precautionary principle (as the Act required her to do). But that was it; just one reference in some 2,500 pages of documents. The Minister never considered the precautionary principle and how it was to be applied in the circumstances faced by the Tasmanian Masked owl.

In late July, 2022 Justice Moshinsky in the Federal Court set the Minister’s decision aside and sent it back to her to be made again, according to law. That means, she needs to actually consider the precautionary principle and work out if there is enough information, or not, to make the decision that the Act requires her to make. And a lack of information cannot count against the Masked Owl. This decision was hailed by the Bob Brown Foundation as one of the most significant decisions made under the EPBC Act since the Act was passed in 1999. Curiously, a failure to apply the precautionary principle has not previously been the subject of a decision by the Federal Court. The Minister can no longer, in a peremptory way, say “I took account of the precautionary principle”. The Minister actually has to apply the law and do it properly.

On 20 August 2020 the Bob Brown Foundation Inc, represented by FitzGerald and Browne, commenced an action in the Federal Court of Australia seeking to have Tasmania’s Regional Forest Agreement declared invalid and of no effect. The case was against the Commonwealth of Australia, the State of Tasmania and Forestry Tasmania. The first directions hearing was in late September 2020. The Respondents to the case argued that the claim was hypothetical and as a result the Foundation made application for an urgent injunction to stop logging of Tasmania’s Swift parrot habitat in 19 identified coupes containing swift parrot habitat. At the first mention of that injunction application on 2 October 2020, Forestry Tasmania gave an undertaking to the Federal Court that it would not log or carry out any forestry operations in those coupes.

The case is important because it is based on an argument that the Tasmanian Regional Forest Agreement is not an RFA within the meaning of the Regional Forest Agreements Act 2002. Consequently, it is argued, the RFA is of no effect. This is significant, because absent the existence of a valid Regional Forest Agreement, the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 will apply to forestry operations in Tasmania and potentially provide the protection to species like the Swift parrot that the RFA process cannot and does not provide.

The case has been expedited because of its importance throughout Australia. There are 10 RFAs in force in Australia across the states of New South Wales, Victoria, Western Australia and Tasmania. The case has been listed for hearing before the Full Court of the Federal Court on 2 December 2020.

In the first case of its type in Tasmania and Australia, the Tasmanian Work Health and Safety Regulator issued a prohibition notice to the Bob Brown Foundation Inc prohibiting it from engaging in any forest protest activities in the State of Tasmania. FitzGerald and Browne, acting for Bob Brown Foundation Inc. challenged the decision in the Magistrates Court, seeking an urgent hearing on the basis that the Regulator was exceeding his powers, that his actions infringed the implied freedom under the Constitution to communicate on government and political matters and that the act did not allow the regulator to do what he had tried to do. After a hearing on 26 February 2020 before Deputy Chief Magistrate Daly the Regulator – represented by the Office of the Solicitor-General for Tasmania – agreed that the notice was too broad, was ill-defined and agreed that the Court could make an order setting aside the notice. This novel use of the Work Health and Safety Act – which is national legislation – to eliminate protest activities was a questionable use of work health and safety legislation.  More on this, soon.

Gun Control Australia

In 2018 FitzGerald and Browne Lawyers represented Gun Control Australia  in an application to the Supreme Court seeking review of a decision of the Premier of Tasmania. In April 2018 the Premier had been asked to provide, under the Right to Information Act 2009, a copy of advice that he said he received from his then Police Minister that gun law changes proposed before the March 2018 election in Tasmania would not breach the National Firearms Agreement.

The Premier, through his delegate, refused to release the information sought. He identified a number documents that were relevant to the request for information but said that they constituted internal deliberative communications and were therefore exempt from release. He referred to public interest considerations as a reason that the information was not going to be made public.

Gun Control Australia sought a review of this decision with the Ombudsman. The Ombudsman said he had no jurisdiction under the Act to review it.

Gun Control Australia took the case to the Supreme Court and was successful. Firstly, it was successful because Justice Brett held that the Right to Information Act had not been properly applied by the Premier’s delegate, and that a number of errors were made in the way the public interest test was applied – or more accurately, misapplied. The judge made reference to the need for the delegate to go through and give active consideration to each of the factors set out in the Act.

The Attorney-General intervened in the case and argued that because there was a right of review to the Ombudsman, then the application to the Supreme Court should be dismissed under the Judicial Review Act. Justice Brett rejected this argument as well, holding that the Ombudsman was right to conclude that he did not have jurisdiction. The Attorney-General, Elise Archer, was ordered to pay the costs of Gun Control Australia.

FitzGerald and Browne acted for Triabunna Investments Pty Ltd, Spring Bay Mill and Bob Brown Foundation Inc. in proceedings in the Federal Court to challenge a decision of the Minister for the Environment made in August 2017 where an approval was given for the construction and operation of a massive fish farm at Okehampton Bay near Triabunna.

The basis of the challenge was that the Minister had issued a notice under the Act to the effect that no assessment under the Commonwealth Environment Protection and Biodiversity and Conservation Act (EPBC Act) needed to occur provided the salmon farm was operated in a particular way. The permit, we argued, was flawed because it did not stipulate all of the ways the fish farm was to be operated.

This was critical to the protection of Southern Right Whales which were known to occur in the area.

FitzGerald and Browne acted for Triabunna Investments Pty Ltd, Spring Bay Mill and Bob Brown Foundation Inc. in proceedings in the Federal Court to challenge a decision of the Minister for the Environment made in August 2017 where an approval was given for the construction and operation of a massive fish farm at Okehampton Bay near Triabunna. The basis of the challenge was that the Minister had issued a notice under the Act to the effect that no assessment under the Commonwealth Environment Protection and Biodiversity and Conservation Act (EPBC Act) needed to occur provided the salmon farm was operated in a particular way. The permit, we argued, was flawed because it did not stipulate all of the ways the fish farm was to be operated.  This was critical to the protection of Southern Right Whales which were known to occur in the area.

The trial was held in early 2018 before Justice Kerr. The case was unsuccessful. An appeal was brought to the Full Court of the Federal Court in October 2018 and judgment was given in April 2019. The appeal was allowed in part and the Minister was ordered to reissue the notice so as to specify the precise method by which the fish farm was to be operated.

This was an important case because the Full Court of the Federal Court for the first time analysed the provisions in the EPBC Act that permit a project to proceed – which is going to have an impact on a threatened species – where the Act allows the Commonwealth to opt out of assessment and protection. The Federal Court identified the need for these notices to be precisely drafted because:

1. the method of operation is critical in protecting endangered species; and

2. a breach of the notice is a criminal offence.

Larissa Waters and Scott Ludlam

In 2017 this firm represented former Senators Larissa Waters and Scott Ludlam in proceedings in the High Court arising from their citizenship status. Each of Scott Ludlam and Larissa Waters resigned from the Senate in July 2017 upon learning that they were entitled to Canadian citizenship (Larissa Waters) or New Zealand citizenship (Scott Ludlam). This set off a chain reaction with the citizenship of a number of other Senators and Members of the House of Representatives being called into question and then eventually referred by the Parliament to the High Court for determination. Referred to the High Court were Senators Nash, Roberts, Canavan, and Xenophon and Mr Joyce MHR.
Judgment was given by the High Court on 27 October 2017, with the parliamentary seats of Roberts, Nash and Joyce being declared vacant due to them being citizens of another country. The seats of Scott Ludlam and Larissa Waters were already vacant, in that they had previously resigned.
FitzGerald and Browne instructed barristers Brian Walters SC, Elizabeth Bennett and Adam McBeth.

We acted for The Wilderness Society Inc. in proceedings in the Federal Court against the Minister for Environment and Water Resources, Malcolm Turnbull, and Gunns Limited in relation to the process to be adopted for the approval of the proposed Gunns’ pulp mill in the beautiful Tamar Valley. In 2008, we represented Environment Tasmania Inc.  and three Tamar Valley landholders in further proceedings in relation to the proposed pulp mill, this time in the Supreme Court of Tasmania.

These proceedings were unsuccessful, with the Supreme Court finding that s.11 of the Pulp Mill Assessment Act 2007 precluded any court challenge to any issue arising out of the decision to grant the permit for the construction of the pulp mill.

The firm represented the Triabunna 13, who were sued for trespass arising out of a protest in January 2009 at Gunns’ woodchip mill at Triabunna. The Triabunna 13, or at least 11 of them, counterclaimed against Gunns, alleging that Gunns Limited and its employee, Calton Frame, engaged in misleading and deceptive conduct in asserting that no old growth tree or no old growth forests will be used in the construction of the proposed pulp mill. That litigation settled out of court.

In 2005, FitzGerald and Browne represented Senator Bob Brown in the Wielangta case, which was commenced in the Federal Court of Australia. That case involved proceedings against Forestry Tasmania for breach of the federal Environment Protection and Biodiversity Conservation Act 1999, as a result of logging and proposed logging operations in Wielangta State Forest near Hobart, which is a key habitat of rare and threatened species.

The case was run on the basis that the forestry operations were likely to have a significant impact upon three listed threatened species: the Wedge Tailed Eagle, the Wielangta Stag Beetle and the Swift Parrot. Senator Brown was successful in those proceedings and obtained injunctions preventing any further logging in the Wielangta area by Forestry Tasmania. That case was argued on the basis of the terms of the Regional Forest Agreement 1997 (“RFA”), between Tasmania and the Commonwealth.

Immediately after the announcement of the judgment, the Federal Government and the State of Tasmania amended the terms of the RFA and then filed an appeal against the judgment of the trial judge. The Full Court of the Federal Court ultimately found in favour of Forestry Tasmania, but this case helped to bring community attention to the management of our state forests.

In 2012 we took on a case for a girl who, although meant to be under the supervision of her guardian, the Secretary of the Department of Health and Human Services, at the age of 12 was sexually exploited by her mother and another. We launched a public fund to raise her legal costs and we raised over $5,000. The claim against the Secretary of the Department and the State of Tasmania was in negligence for failing to discharge its duties as her guardian and to protect her from the predatory actions and exploitation of others.

Proceedings were commenced and these settled in 2017. The case settled on terms that were very satisfactory to the Plaintiff.

FitzGerald and Browne instructed Ken Read SC.

Roland proudly represented Save Ralphs Bay Inc. in a long running case about a $250 million canal estate development in Ralphs Bay near Hobart. The proposal by Walker Corporation for the development attracted strong opposition from the local community due to concerns it would destroy native wildlife habitats and reduce public access to the foreshore.

The proposal was thrown out by the Tasmanian Resource Planning and Development Commission as being “unsustainable”.

Gunns proposed pulp mill

In October 2011 FitzGerald and Browne launched proceedings in the Supreme Court against Gunns Limited on behalf of the Tasmanian Conservation Trust Inc. (TCT) alleging the permit issued to Gunns under the Pulp Mill Assessment Act 2007 was invalid, as there had been no substantial commencement of the project by Gunns.

An application by Gunns that TCT pay security for its costs was dismissed by the Court in April 2012. Gunns’ appeal to a Judge was dismissed in August 2012. Gunns went into administration and receivership in September 2012.