Bropho v Tickner

[1993] FCA 24

Re: ROBERT BROPHO
And: ROBERT TICKNER and BLUEGATE NOMINEES PTY LTD
Nos. WA G202 of 1992 and 9 of 1993
FED No. 24
Number of pages - 37
Aboriginal Heritage
(1993) 40 FCR 165

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Aboriginal Heritage - Applications for declarations for protection and preservation of area of significance to Aboriginals - Refusal of applications - Challenge to decisions - Application for emergency declaration - Whether Minister was entitled to consult Cabinet in connection with prospective decision - Whether Minister was entitled to delegate to others the question whether area under threat - Reasonableness of the conclusion - that area not under threat - Application for permanent declaration - Whether Minister concluded that area not under threat - Reasonableness - Whether Minister bound to determine question of threat and to obtain report before refusing application - Relief.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984, ss 3, 4, 9, 10, 13 and 26

HEARING

PERTH

#DATE 10:2:1993, SYDNEY

Counsel for the Applicant: G.M.G. McIntyre

Solicitors for the Applicant: Corser and Corser

Counsel for the First Respondent: C.J.L. Pullin QC

Solicitors for the First
Respondent: Australian Government Solicitor

Counsel for the Second
Respondent: N.P. Hasluck QC and P D Evans

Solicitors for the Second
Respondent: Freehill Hollingdale and Page

Amicus Curiae for the
Ballaruk People: P.J. Hannan

ORDER

THE COURT ORDERS THAT:

No. WA G202 of 1992

1. It be declared that the decision of the first respondent notified to the applicant by letter dated 11 November 1992 to refuse to make a declaration pursuant to s.9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is invalid.

2. The said decision be set aside.

3. The application of the applicant for a declaration pursuant to the said section be remitted to the Minister for consideration according to law and determination within seven days of this day.

4. The first respondent pay the applicant's costs of this proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:
No. WA G9 of 1993

1. It be declared that the decision of the first respondent notified to the applicant by letter dated 7 January 1993 to refuse to make a declaration pursuant to s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is invalid.

2. The said decision be set aside.

3. The application of the applicant for a declaration pursuant to the said section be remitted to the Minister for consideration and determination according to law.

4. The first respondent pay the applicant's costs of this proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

WILCOX J: These cases were heard in Perth last Thursday and Friday. The issues they raise are important to the parties and to the community generally. For that reason I would ordinarily have reserved…