Starkey v State of South Australia

The plaintiffs, Robert John Starkey and Vince Coulthard, appealed to the Full Court of the Supreme Court of South Australia against a decision of a single judge who had dismissed their application for judicial review. The original application sought to challenge an authorisation granted by the Minister for Aboriginal Affairs and Reconciliation to Straits Exploration (Australia) Ltd. This authorisation permitted Straits to damage, disturb, or interfere with Aboriginal sites, objects, or remains within a specified exploration licence area for the purpose of mineral exploration. The plaintiffs, representing Aboriginal people with interests in the area, had requested the Minister to delegate her powers under the Act, a request they argued was not properly considered.

The central legal issues before the Full Court were whether the Minister was legally required to determine the request for delegation before granting the authorisation, whether the Aboriginal Heritage Act 1988 (SA) mandated a specific procedural step under section 12 prior to authorisations, if the terms of the granted authorisation were excessively broad and uncertain, and if the authorisation was invalid due to the Minister failing to satisfy herself of certain pre-conditions or for failing to consult with the first plaintiff. The plaintiffs contended that the Minister's failure to accord procedural fairness in relation to their delegation request invalidated the authorisation.

The Court, comprising Stanley, David, and Gray JJ, allowed the appeal. Stanley J, with whom David J agreed, held that while the Minister was not required to make a determination under section 12 before granting an authorisation, the exercise of the power to grant an authorisation was nonetheless conditioned on the observance of procedural fairness. As this condition had been breached by the failure to properly consider the delegation request, the authorisation was invalidated. David J further clarified that the terms of the authorisation itself were not impermissibly broad. Gray J, while agreeing with the outcome, also found the authorisation to be invalid on the separate ground that its terms were too broad.

Consequently, the Full Court set aside the dismissal of the judicial review application, made a declaration that the authorisation granted by the Minister on 7 July 2010 was contrary to law, and ordered that the authorisation be quashed by certiorari. The Court also confirmed the single judge's order in the nature of mandamus.