Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs

In Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs, the applicants challenged the Australian Government's proposed actions regarding the Alice Springs town camps, specifically the Minister's intent to give a notice under the Northern Territory National Emergency Response Act 2007 (Cth) and the subsequent sub-leasing of land within the town camps. The applicants, who included residents and tenants of the town camps, argued that the Minister's actions would breach the principles of natural justice by not providing adequate notice and opportunity for submission. The Minister, on the other hand, contended that the Act expressly excluded any obligation to observe natural justice, particularly due to the urgency and exceptional circumstances surrounding the national emergency response.

The primary legal issue before the court was whether the Minister's power under the NER Act to issue a notice that would vest all rights and interests in the Commonwealth was subject to a duty to observe procedural fairness or natural justice. The court needed to determine if the Minister was required to inform the tenants of the potential impact on their rights and provide them with an opportunity to make submissions before issuing the notice, or if the legislative framework expressly excluded such obligations. The Minister argued that the Act's provisions, particularly s 50(1) and (2), excluded both written and unwritten obligations to natural justice.

In its reasoning, the court found that the applicants had established a serious question to be tried and that they would suffer irreparable harm without the injunction. The court held that the balance of convenience favoured the grant of the injunctive relief sought. The court concluded that the Minister's power under s 47 of the NER Act was indeed subject to a duty to observe procedural fairness, notwithstanding the express exclusions in s 50(1) and (2) of the Act. This was because the court found that the exclusions did not fully encompass the unwritten obligations of natural justice, particularly in the context of the significant impact on the tenants' rights. The court thus granted the interlocutory injunctions as sought by the applicants, restraining the Minister and the relevant parties from proceeding with the proposed actions until the trial or further order.