Clark v Minister for the Environment (No 2)

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.