ADMINISTRATIVE LAW ) ABORIGINAL AND TORRES STRAIT ISLANDER ) HERITAGE PROTECTION ACT ) - Judicial review of Minister's decision under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - whether Minister had "considered" representations - meaning of "considered" - effect of claim that certain representations related to matters which aboriginal tradition required to be kept secret from men - consideration of public interest in preservation of aboriginal traditions requiring confidentiality in relation to the requirement that a representation be considered and that relevant questions be able to be debated by all those interested, whether aboriginals or other persons - discussion of the scope and purpose of the Act - significance of representations in the statutory scheme - whether statutory requirements as to notice were fulfilled - meaning of requirements to give notice of "the purpose of the application" and "the matters required to be dealt with in the report" - meaning of "specified area" - consideration of Minister's duty upon receipt of an application from aboriginals - nature of application - nomination of a reporter - whether later representations amounted to a fresh application requiring a fresh nomination and notice thereof -construction of s 9.
CONSTITUTIONAL LAW - whether if a representation was required to be kept secret from a male Minister, a female Minister could have acted pursuant to a decision of the Prime Minister.
WORDS AND PHRASES - "considered" - "specified"
Aboriginal and Torres Strait Islander Heritage Protection Act 1984, ss 3, 4, 7, 9, 10, 11, 13, 22, 23, 24, 25, 27, 30 and 31 Administrative Decisions (Judicial Review) Act 1977, ss 3(3) and 13
Seager v Copydex Limited (1967) 84 RPC 349 Refd Smith, Kline & French Laboratories (Australia) Ltd & Ors v Secretary, Department of Community Services and Health & Anor (1991) 99 ALR 679Refd Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551Refd Aboriginal Sacred Sites Protection Authority v Maurice; Re The Warumungu Land Claim(1986) 10 FCR 104Refd GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 338-343 Refd Gantry Acquisition Corp v. Parker & Parsley Petroleum Australia Pty Ltd(1994) 51 FCR 554Refd
THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS AND ISABELLA ALICE NORVILL AND DOUGLAS MILERA v THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN AND ANDREW LINCOLN CHAPMAN AND GRAHAM FRANCIS BARTON AND GARY STEPHEN KNOTT SG 13 of 1995 SG 14 of 1995 SG 15 of 1995 SG…
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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AGLC
Norvill v Chapman [1995] FCA 987
Case
[1995] FCA 987
Decision Date
CaseChat Overview and Summary
The case of Norvill v Chapman involved the applicant, Norvill, seeking judicial review of a decision made by the Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Norvill challenged the Minister's decision not to refer a proposal to an advisory committee, claiming the Minister failed to consider certain representations submitted to him. The dispute was heard and determined by the Federal Court of Australia.
The primary legal issue for the court to decide was whether the Minister had adequately considered the representations made by Norvill and others. Specifically, the court needed to interpret the term "considered" as used in the Act and assess whether the Minister's failure to act on certain representations rendered his decision invalid. This required the court to delve into the nature and scope of the Minister's duty to consider representations, particularly those that were relevant and pertained directly to the subject matter of the decision.
The court found that the Minister's decision was flawed as he had not properly considered the representations concerning the cultural significance of the proposed site. The court held that the term "considered" in the context of the Act required more than a superficial examination of the submissions. It necessitated a thoughtful and reasoned approach where relevant matters were given due weight. The court held that the Minister's oversight in not adequately addressing certain representations meant his decision was invalid. Consequently, the court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration.
In light of its findings, the court made orders quashing the Minister's decision and directing the Minister to reconsider the proposal in accordance with the law, ensuring all relevant representations were properly considered.