Blue Wedges v Minister Garrett

Last week the Federal Court awarded costs against Blue Wedges in its case against Environment Minister Peter Garrett. PoMC and the State of Victoria joined in the case, and have also won the right to pursue their costs. 

Last week, the Federal court determined that the Federal and State governments and the PoMC have the right to pursue Blue Wedges for costs – the same outcome as our friends who oppose the De-Sal plant (YWYS) obtained recently in their Federal Court case. 


In our case, although ruling against our submission that we acted in the public interest and should not be required to pay costs, the court did make it clear that it was puzzled as to why government might wish to so strenuously pursue community groups at present and that the court was tiring of government arguing that it wants “scalps to hang on the fence” so that the next time it comes to court government could sound a warning that this is what lies ahead. 


It is worthy of note that, like YWYS, our case was against Federal Environment Minister Garrett only. That a further two QC’s and their entourages turned up to “protect the state’s vital project” was not of our doing. It seems anomalous that we could be penalised for their decision on how big they wanted to make their defence/attack?  


What’s more, in spite of the PoMC signing its contract with Boskalis in mid 2004, (before the first EES Hearings had even commenced) and the dredge turning up in the Bay this January before all the necessary approvals had been obtained, our legal action did not in any way delay the start of the project. In fact during the court case we mediated with the state and PoMC so that they could start the project when they wanted to, and they have since admitted that their timetable has not been materially delayed – in fact we think they are ahead of schedule. (Incidentally we did not get Minister Garrett’s reasons for approving the EMP until late May – long after the court case was over, and well past the statutory 28 day period from when we requested them. He didn’t even approve the EMP until 5th February- more than a week after the dredge arrived)


What has become much clearer is that our legal action has helped establish at law that the EPBC Act is of no use to achieve what its name suggests. That is of some interest and benefit to society you would think. We now know that the Environment Protection and Biodiversity Conservation Act, contrary to what its name suggests, does NOT protect the Environment and it does NOT conserve Biodiversity. It appears rather that the Act can be used to provide legal sanction for government/developers/ polluters to continue to use our environmental assets for their benefit.


If we didn’t challenge things we would still be sending kids up chimneys and engaging in slavery. In a civil society what Blue Wedges and other community groups before us have done contributes to how our law is shaped. We say we did act in the public interest. Plenty of things occur in society that as individuals we don’t approve of or support. Nevertheless, plenty of “initiatives” happen, mostly without our consent, and we mostly go along with it for the sake of a peaceful society. And in the end, some of these things turn out to be for the betterment of society….. So who should pay to shape society other than society?


It is the politicians who have devised these unsatisfactory laws that we must now target if we want any change, and any chance of protecting our natural assets. But how? Targeting them at the ballot box in a few years time is a pretty blunt instrument. Maybe, as some of our supporters say, we do need referendums for really important issues – like our future!  


We haven’t given up.


We still await with great interest the outcome of the Parliamentary Committee Inquiry into the PoMC’s business case for channel deepening and its relationship with Boskalis, due later this year.


And – thanks to the Australian Conservation Foundation we now have a truly independent monitor out on the Bay and it is already sounding alarm bells. The ACF’s Orca and its team of scientists from Australian Marine Ecosystems and Monash University have no vested interest in the project proceeding – unlike those employed by Mr. Brumby and the PoMC. With more funds, the Orca team might well be able to stop this project in its tracks before any more damage is done. See their reports to date at:


Please support their great work to save the Bay.



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