CFMEU & Anor, Ex parte - Re Pacific Coal - CFMEU & Anor v Cth - [1999] HCATrans 375

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S137 of 1998

In the matter of -
An application for Writs of Certiorari, Prohibition and Mandamus against THE HONOURABLE JUSTICE ALAN J. BOULTON, a Senior Deputy President of the Australian Industrial Relations Commission and the Full Bench of the Australian Industrial Relations Commission consisting of the Senior Deputy President JOHN W. MACBEAN, Senior Deputy President COLIN G. POLITES and GREG HARRISON, Commissioner, all of the Australian Industrial Relations Commission
First Respondent
PACIFIC COAL PTY LIMITED
Second Respondent
CAPRICORN COAL MANAGEMENT PTY LTD
Third Respondent
CALLIDE COALFIELDS PTY LTD
Fourth Respondent
COLLINSVILLE COAL COMPANY PTY LTD
Fifth Respondent
ENSHAM RESOURCES PTY
Sixth Respondent
BLUFF MINING PTY LTD
Seventh Respondent
LEO AND GREEN PTY LTD
Eighth Respondent
NEWLANDS COAL PTY LTD
Ninth Respondent
OAKY CREEK COAL PTY LTD
Tenth Respondent
SOUTH BLACKWATER COAL LIMITED
Eleventh Respondent
YARRABEE COAL COMPANY PTY LTD
Twelfth Respondent
COAL OPERATIONS AUSTRALIA LIMITED
Thirteenth Respondent
WARKWORTH MINING LIMITED
Fourteenth Respondent
COALPAC PTY LTD
Fifteenth Respondent
DRAYTON COAL PTY LTD
Sixteenth Respondent
WAMBO MINING CORPORATION PTY LTD
Seventeenth Respondent
COAL AND ALLIED OPERATIONS PTY LTD
Eighteenth Respondent
ULAN COAL MINES LTD
Nineteenth Respondent
LIDDELL PREPARATION COAL PTY LIMITED
Twentieth Respondent
MUSWELLBROOK COAL CO LTD
Twenty‑first Respondent
HARTLEY VALLEY COAL CO PTY LTD
Twenty‑second Respondent
COOK RESOURCE MINING PTY LTD
Twenty‑third Respondent
CURRAGH QUEENSLAND MINING LIMITED
Twenty‑fourth Respondent
NORTH GOONYELLA COAL MINES LIMITED
Twenty‑fifth Respondent
ROCHE HIGHWALL MINING PTY LTD
Twenty‑sixth Respondent
OCEANIC COAL AUSTRALIA LIMITED
Twenty‑seventh Respondent
STRATFORD COAL PTY LTD
Twenty‑eighth Respondent
THE CORNWALL COAL COMPANY NO LIABILITY
Twenty‑ninth Respondent
CENTENNIAL COAL CO LTD
Thirtieth Respondent
BERRIMA COAL PTY LIMITED
Thirty‑first Respondent
CHARBON COAL PTY LTD
Thirty‑second Respondent
CLARENCE COLLIERY PTY LTD
Thirty‑third Respondent
IVANHOE COAL PTY LTD
Thirty‑fourth Respondent
AIRLY COAL PTY LTD
Thirty‑fifth Respondent
PEABODY COAL LIMITED
Thirty‑sixth Respondent
LEMINGTON COAL MINES LTD
Thirty‑seventh Respondent
NOVACOAL AUSTRALIA PTY LTD
Thirty‑eighth Respondent
MOUNT THORLEY OPERATIONS PTY LTD
Thirty‑ninth Respondent
and
KANDOS COLLIERIES PTY LTD
Fortieth Respondent

Ex parte -
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Prosecutor
GARRY WILLIAM BARNES

Second Prosecutor

Office of the Registry
Sydney No S138 of 1998

B e t w e e n

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Plaintiff
GARRY WILLIAM BARNES
Second Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY 9 NOVEMBER 1999, AT 10.20 AM

MR R.C. KENZIE, QC: May it please the Court, I appear with my learned friend, MR I. TAYLOR, for the prosecutors in matter 137 and the plaintiffs in 138. (instructed by R.L. Whyburn & Associates)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friends, MR I.M. NEIL and MR L.H. HARDIMAN, for the defendant in the second matter and for the Attorney-General of the Commonwealth intervening in…

CaseChat Overview and Summary

The applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and another, sought judicial review of a decision by the Minister for Industry, Science and Resources (the Minister) to grant an exploration permit to Pacific Coal Pty Ltd. The dispute concerned the validity of the Minister's decision under the *Native Title Act 1993* (Cth) and the *Administrative Decisions (Judicial Review) Act 1977* (Cth). The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision to grant the exploration permit was vitiated by a failure to comply with the procedural fairness requirements of the *Native Title Act 1993* (Cth). Specifically, the applicants contended that the Minister had failed to provide adequate notice and opportunity to be heard to the affected Indigenous groups before making the decision.

The High Court considered the nature of the Minister's duty under the *Native Title Act 1993* (Cth) in relation to the grant of exploration permits. The Court analysed the statutory framework and relevant case law concerning procedural fairness in administrative decision-making. It was held that while the Minister had a duty to consider the interests of native title holders, the specific procedural requirements of the *Native Title Act 1993* (Cth) did not mandate the same level of procedural fairness as might be expected in other administrative contexts. The Court found that the Minister had substantially complied with the statutory obligations, and therefore, the decision to grant the permit was not invalid on the grounds of a denial of procedural fairness.

The application for judicial review was dismissed.

CFMEU & Anor, Ex parte - Re Pacific Coal - CFMEU & Anor v Cth

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established