Anderson v Minister for Environment, Heritage and the Arts

Case [2010] FCA 57

FEDERAL COURT OF AUSTRALIA

Anderson v Minister for the Environment, Heritage and the Arts [2010] FCA 57

Citation: Anderson v Minister for the Environment, Heritage and the Arts [2010] FCA 57
Parties: DOUGLAS ANDERSON and SUSAN ANDERSON v MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS
File number: NSD 1701 of 2008
Judge: FOSTER J
Date of judgment: 10 February 2010
Catchwords: ADMINISTRATIVE LAW – principles pursuant to which decisions made by persons who must be satisfied of factual matters may be reviewed – such decisions are only reviewable if perverse or not supported by probative material or logical grounds – application for an order for review refused  
Legislation: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 4, 9, 10, 11, 13, 14 and 16
Acts Interpretation Act 1901 (Cth) s 15AE
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act 1903 (Cth) s 39B
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 156 followed
Broadbridge v Stammers (1987) 16 FCR 296 followed
Buck v Bavone (1976) 135 CLR 11 applied
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 applied
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 applied
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied
Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325 cited
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 followed
Puhlhofer v Hilingdon London Borough Council [1986] AC 484 followed
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 followed
RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 followed
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 followed
Date of hearing: 9 April 2009
Date of last submissions: 15 April 2009
Place: Sydney
Division: GENERAL DIVISION
Category: CATCHWORDS
Number of paragraphs: 110
Mr A Oshlack of Indigenous Justice Advocacy Network appeared on behalf of the Applicants
Counsel for the Respondent: Mr S Free
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1701 of 2008
BETWEEN:

DOUGLAS ANDERSON
First Applicant

SUSAN ANDERSON
Second Applicant
AND:

MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

10 FEBRUARY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The applicants pay the respondent’s costs of and incidental to the Application.  

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1701 of 2008
BETWEEN:

DOUGLAS ANDERSON
First Applicant

SUSAN ANDERSON
Second Applicant
AND:

MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS
Respondent

JUDGE:

FOSTER J

DATE:

10 FEBRUARY…

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Anderson v Minister for Environment, Heritage and the Arts [2010] FCA 57
Case
[2010] FCA 57
Decision Date

CaseChat Overview and Summary

In the case of Anderson v Minister for Environment, Heritage and the Arts, the applicants sought judicial review of two decisions made by the Minister for Environment, Heritage and the Arts. The applicants contested the Minister's refusal to make an emergency declaration under section 9 of the Act and a subsequent refusal to make a declaration under section 10 of the Act. They argued that the Minister failed to consider relevant evidence, took into account irrelevant considerations, and made a manifestly unreasonable decision.

The primary legal issues the court had to address were whether the Minister adequately considered the evidence presented by the applicants and whether he erred in his application of the relevant statutory provisions. The court had to examine if the Minister’s decisions were made in accordance with the statutory requirements and whether they were rational and reasonable in light of the evidence provided.

The court found that the Minister’s decisions were not flawed in the manner alleged by the applicants. The court held that the Minister had properly considered the relevant evidence and had not taken into account any irrelevant considerations. The court also determined that the Minister’s decisions were reasonable and not manifestly unreasonable. The applicants' arguments regarding the alleged fraud and the mislocation of the massacre site were not substantiated. The court concluded that the Minister’s decisions were within the bounds of his statutory authority and were not subject to judicial review.

The final orders of the court were that the applications for judicial review be dismissed, and the decisions of the Minister be upheld. The court found no merit in the applicants' claims and therefore rejected their requests for the decisions to be set aside and remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants’ seek judicial review of two decisions made by the Minister. The first decision challenged by the applicants is the decision made on 19 August 2008 by which the Minister declined to make an emergency declaration pursuant to s 9 of the Act (the s 9 decision). The second decision under challenge is that made by the Minister on 19 January 2009 by which the Minister declined to make a declaration pursuant to s 10 of the Act (the s 10 decision). The applicants seek to set aside both decisions and to have the matters remitted to the Minister for further consideration by him. In their Amended Application for an Order of Review filed on 16 February 2009, the applicants rely upon the following grounds in support of the relief which they have claimed:(a)In respect of the s 9 decision, the Minister failed to consider at all or failed to give adequate consideration to the following matters:(i)The views of the Bundjalung Elders recorded in a video made in the 1980s to the effect that Angels Beach was part of an area where the massacre occurred;(ii)The contents of Dr Weiner’s second report viz the report dated May 2003. In particular, the applicants relied upon Dr Weiner’s assertion that, during and/or after the massacre, local Aboriginal people fled across the land at Angels Beach and undoubtedly died there; (iii)The contents of the report dated 2000 made by Ms Inge Riebe; and(iv)The archaeological claims made by the applicants in their letter of claim dated 16 June 2008; (b)In respect of the s 9 decision, the Minister took into account irrelevant considerations when he took into account: (i)The contents of a letter dated 24 May 2007 from the Jali Local Aboriginal Land Council to the developer in which the author said that:(A)Claims to the effect that persons who had been killed by consuming poisoned flour were buried on Lot 208 were not generally supported by the Bundjalung people; and(B)Not all Aboriginal people in the Angels Beach area see Lot 208 as significant from an archaeological point of view;(ii)A report dated 27 September 2007 made by Michael Hood, an officer of the NSW Department of Conservation and Climate Change, made for the purpose of consideration being given by that department to issuing an Aboriginal Heritage Impact Permit.(c)The s 9 decision was vitiated by fraud. This allegation was based upon the applicants’ assertion that the Jali Local Aboriginal Land Council letter to which I have referred in subpar (b)(i) above was not a genuine letter and had not been authorised by that Council.(d)In respect of the s 10 decision, the Minister: (i)Erred in law: … by not applying the test on the balance of probabilities to reach his finding that there was no reliable evidence that identifies the specified area as a place where Aboriginal people died as a result of a massacre;(ii)Erred in fact and law in mislocating the area where the first attack which led to the massacre occurred and in concluding that nothing pointed directly and unequivocally to Lot 208 having any connection to the massacre or its aftermath;(iii)Erred in law by failing to consider that every Aboriginal person alive or dead identified Lot 208 as being associated with the massacre and thus as being a significant Aboriginal area; and(iv)Made a manifestly unreasonable decision when he refused to make a s 10 declaration.

Ratio Decidendi

Legal Principle Established

Sections 9(1), 10 and 11 of the Act are in the following terms:s 9 Emergency declarations in relation to areas(1)Where the Minister:(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and(b) is satisfied:(i)that the area is a significant Aboriginal area; and(ii)that it is under serious and immediate threat of injury or desecration;he or she may, by legislative instrument, make a declaration in relation to the area.s 10 Other declarations in relation to areas(1)Where the Minister:(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;(b) is satisfied:(i)that the area is a significant Aboriginal area; and(ii)that it is under threat of injury or desecration;(c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and(d) has considered such other matters as he or she thinks relevant;he or she may, by legislative instrument, make a declaration in relation to the area.(2)Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.(3)Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:(i)stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;(ii)inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and(iii)specifying an address to which such representations may be furnished; and(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.(4)For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:(a) the particular significance of the area to Aboriginals;(b) the nature and extent of the threat of injury to, or desecration of, the area;(c) the extent of the area that should be protected;(d) the prohibitions and restrictions to be made with respect to the area;(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);(f) the duration of any declaration;(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;(h) such other matters (if any) as are prescribed.s 11 Contents of declarations under section 9 or 10A declaration under subsection 9(1) or 10(1) in relation to an area shall:(a)describe the area with sufficient particulars to enable the area to be identified; and(b)contain provisions for and in relation to the protection and preservation of the area from injury or desecration.