Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs

The Toomelah Boggabilla Local Aboriginal Land Council sought an interlocutory injunction against the Minister for Aboriginal and Torres Strait Islander Affairs to compel the Minister to make a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that the Boobera Lagoon was a "significant Aboriginal area" and was under serious and immediate threat of injury or desecration from water-skiing activities. The Council claimed the Lagoon was a significant Aboriginal area and that water-skiing activities threatened it with serious injury or desecration. The Minister had received a report recommending a declaration and a ban on water-skiing for ten years, but had not yet made a decision on the application for a declaration. The Council also sought a declaration under s 9 of the Act for a 30-day ban on water-skiing, which was refused by the Minister.

The court had to determine whether it had the power to make an order compelling the Minister to make the declaration at an interlocutory hearing. The court considered the relevant provisions of the Act and previous cases on the issue. The court found that the power under s 9 of the Act was discretionary, not mandatory, and that the court could only set aside an unlawful decision, not compel the Minister to make a declaration. The court also found that 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) did not empower the court to make the order sought at an interlocutory stage. The court dismissed the application for interlocutory relief.

The court ordered that the application for interlocutory relief be dismissed. This decision was based on the court's finding that it did not have the power to make the order sought at an interlocutory stage, and that the order could not be made at a final hearing. The court certified that the reasons for judgment were a true copy.