Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs
[1996] FCA 924
•17 OCTOBER 1996
CATCHWORDS
INTERLOCUTORY INJUNCTION - application for mandatory order compelling Minister for Aboriginal & Torres Strait Islander Affairs to make declaration under s 9 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) - use of lagoon for water-skiing purposes - lagoon claimed to be "significant Aboriginal area" - water-skiing threatened lagoon with serious injury or desecration - whether Court has power to make such an order at a final hearing - whether Court has power to make such an order at an interlocutory hearing.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) - s 9, s 9(1), s 9(1)(b)(i), s 9(1)(b)(ii), s 10, s 10(1)(c), s 10(4)
Federal Court of Australia Act 1976 (Cth) - s 23
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 16(1)(d)
Migration Act 1958 (Cth) - s 93, s 93(9)
Wamba Wamba Local Aboriginal Land Council & Anor v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 & Anor (1989) 23 FCR 239
Minister for Immigration, Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169
Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 4712
Bond Corporation Holdings Limited and Ors v Australian Broadcasting Tribunal (1988) 84 ALR 669
TOOMELAH BOGGABILLA LOCAL ABORIGINAL LAND COUNCIL v MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS
No. NG 828 of 1996
CORAM: FOSTER J
DATE: 17 OCTOBER 1996
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 828 of 1996
)
GENERAL DIVISION )
BETWEEN:TOOMELAH BOGGABILLA LOCAL ABORIGINAL LAND COUNCIL
Applicant
AND:MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS
Respondent
JUDGE MAKING ORDERS: FOSTER J
DATE: 17 OCTOBER 1996
PLACE: SYDNEY
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1.The application for interlocutory relief be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 828 of 1996
)
GENERAL DIVISION )
BETWEEN:TOOMELAH BOGGABILLA LOCAL ABORIGINAL LAND COUNCIL
Applicant
AND:MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS
Respondent
CORAM: FOSTER J
DATE: 17 OCTOBER 1996
PLACE: SYDNEY
REASONS FOR JUDGMENT
(Extempore)
HIS HONOUR: These proceedings relate to the use, for water-skiing, of a body of inland water in Northern New South Wales known as the Boobera Lagoon ("the Lagoon"). The Lagoon is claimed by the applicant, Toomelah Boggabilla Local Aboriginal Land Council ("the Land Council"), to be a "significant Aboriginal area" within the meaning of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Act"). The Land Council also claims that the use of the Lagoon for the purpose of water-skiing threatens it with serious injury or desecration within the meaning of the Act.
By letter of 19 July 1994 the Land Council made application under s 10 of the Act to the respondent, the Minister for Aboriginal & Torres Strait Islander Affairs ("the Minister"), for a declaration in respect of the Lagoon, which would have the effect of preserving it and protecting it from injury and desecration by preventing water-skiing activity upon it. In accordance with s 10(1)(c) of the Act, the Minister has received a report from Mr Hal Wootten QC dealing with the matters referred to in s 10(4). The report has recommended the making of a declaration, inter alia, for the banning of water-skiing on the lagoon for a period of 10 years from 1 May 1996. This report was received by the Minister on 20 April 1996. The Minister, however, has not yet made a decision in relation to the Land Council's application. That failure to make such a decision is the subject of application in these proceedings for appropriate relief.
A further application was made to the Minister under s 9 for an emergency declaration as defined in that section. The section reads as follows:
"9. (1) Where the Minister:
(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and
(b)is satisfied:
(i)that the area is a significant Aboriginal area; and
(ii)that it is under serious and immediate threat of injury or desecration;
he may make a declaration in relation to the area.
(2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.
(3) The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specific in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect."
That application was refused by the Minister on 14 October 1996. That refusal is also the subject of an application for review in these proceedings, it being asserted that there was no rational basis for the refusal, and that the decision was vitiated by error of law.
The aspect of the proceedings that comes before the Court today is a claim by the Land Council for interlocutory relief pending the determination of the proceedings. The Land Council seeks, in effect, that the Court make a mandatory order directing the minister to make an emergency declaration under s 9 of the Act which would prevent water-skiing activities on the Lagoon for a period of 30 days, with the possibility of a further 30 day extension.
There is, however, a necessary threshold question in this aspect of the proceeding, namely whether the Court has power to make such an order. I have heard submissions on this question this morning, and this decision is directed to that question only.
Section 9 of the Act was considered by Lockhart J in Wamba Wamba Local Aboriginal Land Council & Anor v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 & Anor (1989) 23 FCR 239 ("Wamba Wamba"). In that case it was submitted to his Honour that the word "may" in the phrase "may make a declaration" meant "shall", with the result that once the Minister was satisfied that the relevant area was "a significant Aboriginal area" and that it was "under immediate and serious threat of injury or desecration", he or she came under a duty to make a relevant protective declaration. His Honour rejected this submission, holding (at 248) that the power conferred upon the Minister by s 9(1) to make an emergency declaration was facultative and not imperative. I respectfully agree with this construction of the section.
His Honour, after making reference to the particular facts of the case before him, observed that the circumstances that arose were "almost insoluble" and led to a "difficult and delicate situation". It is likely that cases under the Act will frequently involve such situations. In this context his Honour remarked (at 250):
"It is not for this Court to enter into the merits of the dispute between the parties. The juridical function is to ensure that any actions of the first
respondent which may be contrary to law (including any failure to observe the rules of natural justice) are corrected. In my opinion it has not been shown that the first respondent acted contrary to law or failed to observe the rules of natural justice or that this Court is otherwise entitled to intervene in this matter."
It is, in my view, quite clear that the Court, at a final hearing in these proceedings, would have no power to order the Minister to make a declaration under s 9(1). It could only set aside a decision making or refusing a declaration and then remit the matter to the Minister for a fresh decision in accordance with law. In this regard it must be borne in mind that the Minister may, in his discretion, refrain from making a declaration even though he is satisfied as to the matters referred to in ss 9(1)(b)(i) and (ii).
Is it possible, then, for the Court at an interlocutory level to order the Minister to make the declaration sought in these proceedings? Reliance has been placed by the Land Council in this regard on s 23 of the Federal Court of Australia Act 1976 (Cth) and s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").
The operation of s 23 of the Federal Court of Australia Act 1976 (Cth) was considered in Minister for Immigration Local Government & Ethnic Affairs v Msilanga (1992) 34 FCR 169, a case relied upon by the applicants. In that case the respondent had been arrested and taken into
custody pursuant to s 93 of the Migration Act 1958 (Cth) as a prelude to his deportation from Australia. Under s 93(9) of the Migration Act the relevant minister had power, at his discretion, to order the respondent's release. An application by the respondent to the appellant Minister for his release pending the review by the Court of the deportation order made against him was refused. A judge of this Court made an interlocutory order that the respondent be released on bail conditions pending a hearing. It was held on appeal against this order that, inter alia, s 23 gave power to make that order. However, Beaumont J (at 177) referred to the decision of Gummow J in Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 4712, that:
"... s 23 does not operate at large or in a general way. In Jackson v Sterling Industries Limited (1987) 162 CLR 612 ... Deane J, with the agreement of the Chief Justice, Wilson and Dawson JJ said:
`Section 23 of the Federal Court of Australia Act confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it "thinks appropriate". Wide though that power is, it is subject to both jurisdictional and other limits. It exists only "in relation to matters" in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the "kinds" of orders, whether final or interlocutory, which are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction.'"
At page 179 Beaumont J said further, in relation to the section and its operation, that:
"It is true that an interim order under s 23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s 16 of the ADJR Act or s 39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate."
In my view, having regard to these observations, s 23 cannot, in the present case, empower me to make an order at an interlocutory stage which could not, for the reasons given in Wamba Wamba, be made at a final hearing.
Similarly, s 16(1)(d) of the ADJR Act cannot have this effect. I am satisfied that the decision of Gummow J in Bond Corporation Holdings Limited and Ors v Australian Broadcasting Tribunal (1988) 84 ALR 669, relied upon by the Land Council, does not give the section this wide operation. That case was very different from the present one. There, final orders had in fact been made setting aside decisions of the Tribunal and, because of the general urgency of the circumstances, Gummow J acted under the section. His Honour said (at 683):
"In its discretion, the court may make an order directing the tribunal to do any act or thing, the doing of which the court considers necessary to do justice between the parties: ADJR Act, s 16(1)(d). In an appropriate case where a decision is set aside, an order under this provision may be made compelling a decision of a particular kind."
His Honour then referred to authority. In the present case no final orders have of course been made, and I can see no basis for the application of s 16(1)(d).
Accordingly, I am satisfied that I do not have the power to make the order sought. This must result in the decision that I dismiss this aspect of the application and I so order.
I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.
Associate:
Date: 17 OCTOBER 1996
A P P E A R A N C E S
FOR THE APPLICANT: DR J. GRIFFITHS
INSTRUCTED BY: WARWICK BAIRD, LEGAL CONSULTANT
FOR THE RESPONDENT: G. PEEK
INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING: 17 OCTOBER 1996
DATE OF JUDGMENT: 17 OCTOBER 1996
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