Clark v Minister for the Environment - [2019] FCA 2027

FEDERAL COURT OF AUSTRALIA
Clark v Minister for the Environment [2019] FCA 2027

File number: VID 885 of 2019

Judge: ROBERTSON J

Date of judgment: 6 December 2019

Catchwords:
ABORIGINAL HERITAGE – application under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to Commonwealth Minister for declarations seeking the preservation or protection of a specified area from injury or desecration and for the preservation or protection of specified objects from injury or desecration – refusal of applications – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of the Commonwealth Minister’s decision – whether error of law – whether no evidence or other material to justify the making of the decision – whether the making of the decision was an improper exercise of the power – whether decision Wednesbury unreasonable – whether failure to consult with the appropriate Minister of the State of Victoria – whether breach of the rules of natural justice

ADMINISTRATIVE LAW – aboriginal heritage – applications under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to Commonwealth Minister for declarations seeking the preservation or protection of a specified area from injury or desecration and for the preservation or protection of specified objects from injury or desecration – refusal of applications – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of the Commonwealth Minister’s decision – whether error of law – whether no evidence or other material to justify the making of the decision – whether the making of the decision was an improper exercise of the power – whether decision Wednesbury unreasonable – whether failure to consult with the appropriate Minister of the State of Victoria – whether breach of the rules of natural justice

Legislation:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 10, 12, 13

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Aboriginal Heritage Act 2006 (Vic)

Cases cited:
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1984] FCA 1074; 49 FCR 576

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

Tickner v Bropho (1993) 40 FCR 183

Tickner v Chapman (1995) 57 FCR 451

Dates of hearing: 19 and 22 November 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 205

Counsel for the Applicants: Mr AT Strahan QC with Mr JJ Whelen

Solicitor for the Applicants: Michael I Kennedy & Associates

Counsel for the Respondent: Mr CJ Horan QC with Dr L Hilly

Solicitor for the Respondent: Maddocks

ORDERS

VID 885 of 2019

BETWEEN:
JIDAH CLARK

First Applicant

MERIKI ONUS

Second Applicant

LORRAINE SANDRA ONUS (and another named in the Schedule)

Third Applicant

AND:
THE MINISTER FOR THE ENVIRONMENT

Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

6 DECEMBER 2019

THE COURT ORDERS THAT:
1.The decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 2027
Decision Date: 6 December 2019

CaseChat Overview and Summary

The applicants in Clark v Minister for the Environment sought declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for the preservation or protection of a specified area and objects from injury or desecration. The Commonwealth Minister for the Environment refused these applications. The applicants then applied for judicial review of the Minister's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), arguing that the decision was flawed due to errors of law, lack of evidence, and improper exercise of power. They further claimed that the Minister failed to consult the appropriate Minister of the State of Victoria and breached natural justice principles.

The court examined whether the Minister's decision was legally sound and whether it adhered to the required standards of evidence and consultation. The applicants contended that the Minister's errors in considering certain statutory matters could have influenced the outcome of the decision. The court found that the Minister's errors were not independent of the discretionary exercises, thus impacting the decision's validity. Consequently, the court concluded that the Minister's decision was flawed and set it aside.

In its judgment, the court determined that the applicants' application for judicial review was successful. The Minister's decision, dated 16 July 2019, was set aside from the date it was made. The applicants' application dated 17 June 2018 was referred back to the Minister for further consideration. Additionally, the court ordered the Minister to pay the applicants' costs of the application, excluding the costs of the interlocutory application.

The court's decision emphasised that the statutory provisions of the Heritage Protection Act were not followed correctly, leading to an improper exercise of discretion by the Minister. The Minister's failure to consult with the appropriate Victorian Minister and adhere to natural justice principles further compounded the error. The applicants' application was thus upheld, and the decision was annulled, with the matter being remitted for reconsideration by the Minister.

Orders

Orders of the court

1. The decision of the respondent made on 16 July 2019 not to make declarations under s 10 and s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is set aside from the date it was made.

2. The applicants’ application dated 17 June 2018 be referred to the respondent for further consideration according to law.

3. The respondent pay the applicants’ costs of the application, excluding the costs of the applicants’ interlocutory application dated 8 November 2019, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that I do not accept the submissions on behalf the Minister that any errors made in considering the matters in ss 10(1)(b) and 12(1)(b) were such that the applicants had not shown that those errors might have made a difference to the outcome, being the Minister’s refusal to make the declaration sought in respect of the area under s 10 and in respect of the objects under s 12. In short, the exercises of discretion in the present case were not independent of the error made by the Minister in considering the matters specified in ss 10(1)(b) and 12(1)(b).Conclusion and orders For these reasons, the applicants’ application for judicial review succeeds and I shall order that the decision of the respondent Minister made on 16 July 2019 be set aside from the date it was made. Consequentially, the applicant’s Application dated 17 June 2018 is to be referred to the respondent Minister for further consideration. Leaving aside the costs of the applicants’ interlocutory application, the respondent is to pay the applicants’ costs of this application, as agreed or assessed.

Ratio Decidendi

Legal Principle Established

The statutory provisions of the Heritage Protection Act are as follows: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.…12 Declarations in relation to objects(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 object or class of objects from injury or desecration;(b) is satisfied:(i)that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and(ii)that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;(c)has considered any 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); 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 object or the whole or that part of the class of objects, as the case may be.(2)Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.(3)A declaration under subsection (1) in relation to an object or objects shall:(a)describe the object or objects with sufficient particulars to enable the object or objects to be identified; and(b)contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.(3A)A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.(4)A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:(a) the Minister; or(b)an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.

File number:	VID 885 of 2019
Judge:	ROBERTSON J
Date of judgment:	6 December 2019
Catchwords:	ABORIGINAL HERITAGE – application under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to Commonwealth Minister for declarations seeking the preservation or protection of a specified area from injury or desecration and for the preservation or protection of specified objects from injury or desecration – refusal of applications – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of the Commonwealth Minister’s decision – whether error of law – whether no evidence or other material to justify the making of the decision – whether the making of the decision was an improper exercise of the power – whether decision Wednesbury unreasonable – whether failure to consult with the appropriate Minister of the State of Victoria – whether breach of the rules of natural justice ADMINISTRATIVE LAW – aboriginal heritage – applications under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to Commonwealth Minister for declarations seeking the preservation or protection of a specified area from injury or desecration and for the preservation or protection of specified objects from injury or desecration – refusal of applications – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of the Commonwealth Minister’s decision – whether error of law – whether no evidence or other material to justify the making of the decision – whether the making of the decision was an improper exercise of the power – whether decision Wednesbury unreasonable – whether failure to consult with the appropriate Minister of the State of Victoria – whether breach of the rules of natural justice
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 10, 12, 13 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Aboriginal Heritage Act 2006 (Vic)
Cases cited:	Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1984] FCA 1074; 49 FCR 576 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Tickner v Bropho (1993) 40 FCR 183 Tickner v Chapman (1995) 57 FCR 451
Dates of hearing:	19 and 22 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	205
Counsel for the Applicants:	Mr AT Strahan QC with Mr JJ Whelen
Solicitor for the Applicants:	Michael I Kennedy & Associates
Counsel for the Respondent:	Mr CJ Horan QC with Dr L Hilly
Solicitor for the Respondent:	Maddocks

JUDGE:	ROBERTSON J
DATE OF ORDER:	6 DECEMBER 2019