ROBERT TICKNER v. ROBERT BROPHO Nos. WAG21-22 of 1993 FED No. 306 Number of pages - 60 Aboriginals - Administrative Law - Statutory Interpretation (1993) 114 ALR 409 (1993) 40 FCR 183
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION Black CJ(1), Lockhart(2) and French(3) JJ
CATCHWORDS
Aboriginals - significant Aboriginal areas - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - s.9 application for interim declaration - whether failure to grant was unreasonable given Minister could have obtained information indicating State protection had been withdrawn - whether Minister obliged to seek information - s.10 application for "permanent" declaration - statutory interpretation - implied obligation to consider whether area is significant aboriginal area and is under threat of destruction - implied obligation to seek report.
Administrative Law - judicial review - error of law - failure to take into account relevant considerations - whether failure to comply with preconditions for exercise of discretion - unreasonableness - whether duty to inquire
Statutory Interpretation - language, structure and purpose of Act - implied obligation - reference to extrinsic materials - beneficial legislation - Aboriginaal and Torres Strait Islander Heritage Protection Act 1984
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr G. McIntyre
Solicitors for the Respondent: Corser and Corser
ORDER
THE COURT ORDERS:
1. The appeals be dismissed.
2. The appellant pay the repondents costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BLACK CJ The appellant, Robert Tickner ("the Minister"), is the Minister for Aboriginal and Torres Strait Islander Affairs. The respondent, Robert Bropho, applied to the Court for orders of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). He sought judicial review of a decision made by the Minister under s. 9(1) of…
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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Details
AGLC
Tickner, R. v Bropho, R. [1993] FCA 306 ((1993) 114 ALR 409; (1993) 40 FCR 183)
Case
[1993] FCA 306
Decision Date
CaseChat Overview and Summary
Tickner v Bropho is a significant case involving the protection of Aboriginal heritage sites in Australia. The appellant, Tickner, sought to protect certain areas of land against proposed developments by making applications under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The respondents, Bropho, were those proposing the developments and were seeking to proceed with their projects. The case reached the High Court of Australia, which had to determine whether the Federal Court was correct in its interpretation of the Act and the obligations of the Minister under it.
The primary legal issues the court had to address were the interpretation of the Act and the obligations of the Minister in relation to applications made under it. Specifically, the court had to determine whether the Minister was required to seek additional information before deciding on applications for declarations under sections 9 and 10 of the Act. The court also needed to decide whether the Minister's failure to obtain information that might have influenced their decision was unreasonable. Furthermore, the court had to clarify the scope of the Minister's obligations in considering whether an area is a significant Aboriginal area and whether it is under threat of destruction.
The High Court found that the Minister was not required to seek additional information before making a decision on an application for an interim declaration under section 9 of the Act, as the Minister was not bound by evidence or required to make an independent assessment of the evidence. However, the court held that the Minister had an implied obligation to consider whether an area was a significant Aboriginal area and whether it was under threat of destruction before making a decision on an application for a permanent declaration under section 10 of the Act. The court also found that the Minister had an implied obligation to seek a report from an appropriate authority if necessary to make an informed decision. The court held that the Minister's failure to obtain information indicating that State protection had been withdrawn was not unreasonable as the Minister was not required to seek such information.
The court dismissed the appeals and ordered that the appellant pay the respondents' costs. The case highlights the importance of the Minister's role in protecting Aboriginal heritage sites and the need for careful consideration of applications made under the Act. The decision also clarifies the scope of the Minister's obligations in relation to such applications and the importance of considering all relevant information before making a decision.
Orders
Orders of the court
THE COURT ORDERS:
1. The appeals be dismissed.
2. The appellant pay the repondents costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.