Cohen v Peko-Wallsend

[1986] HCA 70

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason and Wilson JJ.

THE HONOURABLE BARRY COHEN, MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT AND OTHERS v. PEKO-WALLSEND LIMITED AND OTHERS

26 November 1986

Decision

GIBBS C.J., MASON AND WILSON JJ.: The present proceedings relate to a decision made on 16 September 1986 by the Government of the Commonwealth to take immediate steps to seek the listing in the World Heritage List of an area in the Northern Territory known as Kakadu Stage II. On 17 September 1986 the Commonwealth submitted that area for inclusion in the World Heritage List as an extension to the existing listing of an area in the same vicinity known as Kakadu Stage I. The submission was made to the World Heritage Committee under Article 11 of the Convention for the Protection of the World Cultural and Natural Heritage and was due to be considered at a meeting of that Committee to be held from 24 to 28 November 1986 in Paris.

2. The present respondents, four companies, have certain mining interests in Kakadu Stage II. Those interests exist in twenty or thirty small areas which together make up about one per cent of the total area of Kakadu Stage II. The respondents claim that if Kakadu Stage II is listed in the World Heritage List a consequence will be that their mining interests will be liable to be extinguished. They further claim that the government, in making its decision to apply for the listing of the area, failed to take into account material considerations and that the decision was manifestly unreasonable. They further claim that they were entitled to be heard, or had a legitimate expectation that they would be heard, before the decision was made and that they have been denied natural justice. On 20 November 1986 they moved before Beaumont J. in the Federal Court for an interlocutory injunction directed to the present applicants, who are respectively the Minister for Arts, Heritage and Environment, the Attorney-General of the Commonwealth and the Commonwealth. The orders sought included a mandatory injunction requiring the Minister for Arts, Heritage and Environment to take all steps reasonably open and available to him to cause the application for listing to be withdrawn or deferred. On 24 November Beaumont J. made an order that the present applicants should forthwith inform the World Heritage Committee that the Federal Court had directed them to inform the committee of the following:

"(a) that the applicants (that is, the present respondents) claim to be entitled to certain mining rights over an area of approximately 65 square kilometres situated within the boundaries of the Stage II extension which area is described in the schedule hereto;

(b) that the applicants (the present respondents) have recently commenced proceedings in the Federal Court of Australia seeking to restrain the consent of the Commonwealth of Australia to the listing and to require that consent to be withdrawn;

(c) that the proceedings have been fixed for a final hearing to commence on 8 December 1986;

(d) that it is anticipated that the proceedings will conclude on 12 December 1986 and that the judgment of the Court will be given shortly thereafter;

(e) that with a view to preserving the status quo until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of Australia has directed the respondents (the present applicants) to request the World Heritage Committee to defer until further notice its consideration of so much of the application for the listing as includes the area described in the schedule."

3. On the same day the present applicants applied to the Full Court of the Federal Court for leave to appeal from the interlocutory judgment of Beaumont J. The application was heard that day and the Full Court dismissed it. Because of the urgency of the matter - the World Heritage Committee was scheduled to commence its sitting on 24 November at 8.00 p.m. Sydney time - when we heard argument in this Court on 25 November 1986 the formal reasons, if any, of Beaumont J. and of the Full Court were not available.

4. The applicants now seek special leave to appeal from the decision of the Full Court and a stay of the order made by Beaumont J. Mr Bennett, who appeared for the applicants, developed two main submissions. First, he submitted that the actions of the Commonwealth Government, done under the prerogative towards other states or international organizations pursuant to a treaty, are not amenable to judicial review of any kind and that, as a corollary, there can be no obligation to accord natural justice before such action is taken and there can be no legitimate expectation that consultation will take place or that the interests of particular persons will be taken into account before such action is taken. Secondly, he submitted that the respondents would not suffer any material detriment if the areas were listed because under the Convention the listing would have no effect on the obligations of the Commonwealth and under the World Heritage Properties Conservation Act 1983 (Cth) the listing would have no operative effect, although the making of the submission would fulfil one of the conditions precedent to the making of a proclamation under s.6 of the Act, and the effect of such a proclamation would be, inter alia, to render it unlawful for the respondents to carry out mining operations on the land without the consent of the Minister (see s.10). He further contended that on an application for an interlocutory injunction it is the duty of the Court finally to determine any question which is one of law, rather than to inquire whether there is a serious question to be tried. Finally, in relation to the question of detriment, he pointed to material which showed that for Australia to seek to defer or withdraw its submission to the World Heritage Committee would have a potential seriously to embarrass Australia and would deleteriously affect Australia's high reputation with international environmental and heritage bodies and would call into question present and future Australian nominations to the World Heritage List. He said further that if the submission is not considered by the World Heritage Committee at its present sitting, it will probably not be considered for another twelve months, since the Committee meets only once a year.

5. Mr Conti, who appeared for the respondents, controverted both of Mr Bennett's main submissions. He submitted that modern authority favours the view that an exercise of the prerogative is susceptible to review, particularly in a case where rights of property will be affected. He submitted that under the Convention, the duty of a state party to take appropriate measures necessary for, inter alia, the conservation and protection of the heritage under art.5(d) crystallizes only when the heritage is listed under art.11. Further, he submitted that the fact that the international obligation had crystallized might itself defeat an attack, based on grounds of want of natural justice, on the decision to submit the area in question for listing. In relation to the exercise of discretion, he submitted that no detriment could result from a delay in considering the listing of the area and that mere embarrassment is not a sufficient reason for the Court to refuse relief to the respondents when the listing of the area may have the result that the value of their interest is destroyed.

6. The questions raised by these arguments are complex and profound and have ramifications far beyond the confines of the present case. The principles which govern the question whether and when a person affected by an exercise of the prerogative is entitled to natural justice or judicial review are in a developing state, and the result of applying those principles to the present case is far from clear. The construction of the Convention presents difficulties which it would be wrong to attempt to resolve without first inquiring whether there are available aids to interpretation, such as travaux preparatoires, which ought to be considered. It is not right to say that it is always the duty of the Court on an interlocutory application to decide a question of law upon which the decision of the case depends. No doubt if the question is one susceptible of resolution without further evidence, and the urgency of the matter does not render it impracticable to give proper consideration to the question, the desirable course will be to decide it. Ultimately, however, the course which the Court takes lies within its discretion. It cannot be doubted that Beaumont J. was justified in refraining from attempting finally to resolve the questions of law in the present case.

7. Obviously there are serious and important questions to be tried in the proceedings. In those circumstances it became necessary for Beaumont J. to consider whether the balance of convenience favoured the grant or refusal of an interlocutory injunction. It is quite impossible to say that his Honour could not reasonably have reached the conclusion that on the balance of convenience an injunction should be granted. Indeed, the only arguments advanced by Mr Bennett in relation to the exercise of the discretion were based on the suggestion that the Commonwealth would suffer embarrassment and that there might be a year's delay in considering the submission. Embarrassment can rarely be a reason for refusing relief to a party otherwise entitled to it, and there was no evidence that delay would have any detrimental effect on Kakadu Stage II. It lay within the discretion of Beaumont J. to decide that matters should be preserved in statu quo pending the determination of the serious issues raised in the proceedings and there is nothing to show that he fell into any error in exercising his discretion. Mr Bennett objected to the form of the order which Beaumont J. made, but once the learned judge had decided to grant an injunction the form of his order also lay within his discretion.

8. It is rare indeed for this Court to grant special leave to appeal from an order dismissing an application for leave to appeal from an interlocutory order. In the present case there is no reason to doubt the correctness of the refusal by the Full Court of the Federal Court to grant leave to appeal. It is hardly necessary to add that we do not express any view on the substantive questions which will fall for decision when the action is heard in the Federal Court on 8 December 1986.

9. Special leave to appeal must be refused and it follows that the application for a stay, which is merely ancillary to the application for special leave, must also be refused.

Orders

Refuse application for special leave and for a stay with costs.

Dissolve the interim order for a stay made by Gibbs C.J.