Clark v Minister for the Environment (No 2) - [2019] FCA 2028

FEDERAL COURT OF AUSTRALIA
Clark v Minister for the Environment (No 2) [2019] FCA 2028

File number: VID 885 of 2019

Judge: ROBERTSON J

Date of judgment: 6 December 2019

Catchwords:
ADMINISTRATIVE LAW – proceedings for judicial review of a refusal by the Minister for the Environment to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in respect of an area and in respect of objects – whether, where the Court sets aside the decision of the Minister, the Court has power to issue an injunction to restrain a third party from taking any actions that would have the effect of causing injury to or desecration of the area or objects until the Minister makes a further decision according to law

ABORIGINAL HERITAGE – proceedings for judicial review of a refusal by the Minister for the Environment to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in respect of an area and in respect of objects – whether, where the Court sets aside the decision of the Minister, the Court has power to issue an injunction to restrain a third party from taking any actions that would have the effect of causing injury to or desecration of the area or objects until the Minister makes a further decision according to law

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

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules 2011 (Cth) r 9.05

Cases cited:
Bropho v Tickner (1993) 40 FCR 165

Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380

Carter v Minister for Aboriginal Affairs [2005] FCA 667; 143 FCR 383

Clark v Minister for the Environment [2019] FCA 2027

Dates v Minister for the Environment, Heritage and the Arts [2009] FCA 1156; 180 FCR 368

Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408

Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 503

Patrick Stevedores Operations v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

Williams v Marac Australia Ltd (1985) 5 NSWLR 529

Williams v Minister for the Environment and Heritage [2003] FCA 535; 74 ALD 124

Williams v Minister for the Environment and Heritage [2003] FCA 627; 199 ALR 352

Williams v Minister for the Environment and Heritage [2004] FCAFC 58; 132 LGERA 368

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: 27

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

Solicitor for the Applicants: Michael I Kennedy & Associates

Counsel for the State of Victoria: Mr CM Caleo QC with Mr S Goubran

Solicitor for the State of Victoria MinterEllison

ORDERS

VID 885…

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.

Keep reading for free

Create a free CaseChat account to read Clark v Minister for the Environment (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCA 2028
Decision Date: 6 December 2019

CaseChat Overview and Summary

The case of Clark v Minister for the Environment (No 2) involved an application for judicial review of a decision by the Minister for the Environment not to make declarations under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) regarding a specific area and objects. The applicants sought an injunction to prevent a third party from taking actions that could harm or desecrate the area or objects until the Minister made a lawful decision. The case was heard in the Federal Court of Australia.

The central legal issue in this case was whether the Court had the authority to issue an injunction to a third party when setting aside the Minister’s decision. The applicants argued that the Court should have the power to issue such an injunction to protect the cultural heritage until the Minister made a lawful decision. The Minister contended that the Court's jurisdiction was limited to reviewing the decision and not to issuing injunctions against third parties.

The Court found that the primary jurisdiction to make declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act lies with the Minister, and that the Court’s role is limited to reviewing the legality of the Minister’s decisions. The Court held that it did not have the power to issue an injunction to a third party when setting aside the Minister's decision. The Court also noted that the legislative scheme provided alternative mechanisms for the protection of the area and objects, including the possibility of seeking relief from the Federal Court under the Federal Court Act or the Federal ICAC Act.

The orders of the Court dismissed the applicants’ interlocutory application and required the applicants to pay the costs of the State of Victoria in relation to the interlocutory application. The applicants were ordered to pay the costs as agreed or assessed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicants’ interlocutory application dated 8 November 2019 be dismissed.

2. The applicants pay the State of Victoria’s costs of and incidental to the applicants’ interlocutory application, 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 885 of 2019
Judge:	ROBERTSON J
Date of judgment:	6 December 2019
Catchwords:	ADMINISTRATIVE LAW – proceedings for judicial review of a refusal by the Minister for the Environment to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in respect of an area and in respect of objects – whether, where the Court sets aside the decision of the Minister, the Court has power to issue an injunction to restrain a third party from taking any actions that would have the effect of causing injury to or desecration of the area or objects until the Minister makes a further decision according to law ABORIGINAL HERITAGE – proceedings for judicial review of a refusal by the Minister for the Environment to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in respect of an area and in respect of objects – whether, where the Court sets aside the decision of the Minister, the Court has power to issue an injunction to restrain a third party from taking any actions that would have the effect of causing injury to or desecration of the area or objects until the Minister makes a further decision according to law
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 10, 12 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16 Federal Court of Australia Act 1976 (Cth) s 23 Federal Court Rules 2011 (Cth) r 9.05
Cases cited:	Bropho v Tickner (1993) 40 FCR 165 Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 Carter v Minister for Aboriginal Affairs [2005] FCA 667; 143 FCR 383 Clark v Minister for the Environment [2019] FCA 2027 Dates v Minister for the Environment, Heritage and the Arts [2009] FCA 1156; 180 FCR 368 Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408 Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009] QB 503 Patrick Stevedores Operations v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 Williams v Marac Australia Ltd (1985) 5 NSWLR 529 Williams v Minister for the Environment and Heritage [2003] FCA 535; 74 ALD 124 Williams v Minister for the Environment and Heritage [2003] FCA 627; 199 ALR 352 Williams v Minister for the Environment and Heritage [2004] FCAFC 58; 132 LGERA 368
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:	27
Counsel for the Applicants:	Mr AT Strahan QC with Mr JJ Whelen
Solicitor for the Applicants:	Michael I Kennedy & Associates
Counsel for the State of Victoria:	Mr CM Caleo QC with Mr S Goubran
Solicitor for the State of Victoria	MinterEllison