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[2026] QCA 7
respondent. Appeal dismissed; leave to bring the cross-appeal granted and the cross-appeal allowed except as to the certiorari relief; specified primary-court orders set aside, the Chief Executive’s...
The Court of Appeal restored most of Nagana’s case for a hearing. It held that the reviewability question is not limited to whether the decision affected Nagana’s own legal rights. On the assumed facts, the refusal to issue an environmental protection order could itself affect the practical enjoyment of cultural rights connected with the Springs. A refusal to commence court proceedings under s 505 was different and did not itself affect rights. The declaration claim could proceed because the Chief Executive had communicated a then-final decision and the alleged statutory duty to consider protective powers was arguable. The Court did not decide whether the claimed cultural rights were in fact impaired or whether the Chief Executive ultimately had a duty to act.
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2,254 words · generated 08/10/2026
8 cited instruments linked from this judgment.
The appeal concerned a Department decision communicated on 22 December 2023. Nagana had asked the Chief Executive to use powers under the Environmental Protection Act 1994 (Qld), including ss 358 and 505, to prevent further open-cut mining until the Department was sufficiently satisfied there was no threat of environmental harm to Doongmabulla Springs [9]-[10].
Adani’s environmental authority for the Carmichael Coal Mine had been granted in February 2023 [5]. An Environmental Protection Order issued on 2 March 2023 required Adani to pause the start of underground mining until it could demonstrate that activity could be conducted without exceeding approved impacts, and to complete a further groundwater model review [7]. The Department had also obtained a technical report from CSIRO and Geoscience Australia which raised concerns about confidence in the groundwater modelling [8].
In its response to Nagana, the Department acknowledged the Springs’ ecological value and spiritual significance to Nagana’s clients. It stated that it could not recommend that Adani cease open-cut mining or that proceedings under s 505 be brought, while saying it would take appropriate action if circumstances changed and it became aware of potential risks [11]-[12]. The Court treated this as a decision not to exercise the identified powers at that time [60].
Nagana sought judicial review, declarations and other relief, relying on alleged errors under the Environmental Protection Act and alleged failures to comply with the Human Rights Act 2019 (Qld), including its recognition of Aboriginal and Torres Strait Islander cultural rights in s 28 [14]-[17]. The Chief Executive applied to have the proceeding dismissed or set aside. The primary judge struck out the JRA review and prerogative relief claims but left the claim for a declaration [19].
The Court of Appeal dismissed the Chief Executive’s appeal and allowed Nagana’s cross-appeal, except for the particular wording seeking certiorari [185]. It did not decide the ultimate merits of Nagana’s allegations. Its decision was that the principal issues were not suitable for summary disposal.
Doyle JA began with the two-limb test in Griffith University v Tang. A decision must be expressly or impliedly required or authorised by an enactment, and it must itself confer, alter or otherwise affect legal rights or obligations [56], [61]. The first point was not controversial: the Chief Executive had made a decision about whether to exercise powers under the Environmental Protection Act [60].
The first important disagreement with the primary judge concerned whose rights must be affected. The Court held that the relevant rights or obligations need not be those of the person seeking review. The JRA separately deals with whether a decision falls within the Act and whether the applicant is a person aggrieved [62]-[69]. Treating these as distinct questions avoids adding a limitation not expressed in s 4(a).
The harder question was whether a refusal to exercise a power itself affects rights. Doyle JA did not accept that a refusal is reviewable merely because exercising the power would affect rights. He noted that a decision to issue an EPO could impose additional obligations on Adani and expose it to sanctions or proceedings [76]-[77]. But the decision in this case was not to issue an EPO. The Court therefore considered whether the refusal itself affected rights, rather than relying only on the hypothetical effects of an EPO.
On the assumed facts, the Court reasoned that the alleged environmental harm could affect the practical enjoyment of the s 28 cultural rights. A right to maintain a relationship with land and waters may remain formally recognised while its enjoyment is impaired by changes to the land or water [131]-[133]. The relevant effect was not merely that a legal right existed in name, but that the substance of the relationship with the Springs might be affected. On that basis, the decision concerning s 358 could be reviewable, provided the relevant facts were established [135].
The decision under s 505 was treated differently. That section permits proceedings to be brought in court to remedy or restrain an offence or threatened offence. The decision whether to commence proceedings invokes the Court’s jurisdiction; it does not itself determine the underlying controversy or affect rights. Any effect on rights would arise from the Court’s substantive determination [96]-[100], [137]-[141]. Thus, if the challenged decision had been limited to declining to commence s 505 proceedings, it would not satisfy Tang.
The Court also held that Nagana’s declaration claim could proceed independently. A declaration requires a real legal controversy, a sufficient interest and utility, not merely a request for an answer to an abstract question [151]-[155]. The Chief Executive’s letter was a decision not to act at that time, even though it contemplated future action if circumstances changed [163]. Whether the Environmental Protection Act required the Chief Executive to consider exercising s 358 powers was plainly arguable, in light of the statutory objects and the requirement in s 359 to consider standard criteria before deciding whether to issue an EPO [161]-[163].
The judgment applies the established Tang test but clarifies two points about its operation in this context. First, the rights affected by a decision under an enactment need not belong to the applicant seeking review [62]-[69]. The applicant’s standing and the character of the decision are separate requirements under the JRA.
Second, the judgment distinguishes between an unexercised power’s potential effect and the actual effect of a refusal. Doyle JA considered that a refusal should not qualify under Tang merely because an alternative decision, had it been made, would have affected rights [92]-[95]. But the decision may qualify where the refusal itself has an impact on rights. On the assumed facts, not issuing an EPO could permit environmental harm that impaired the practical enjoyment of s 28 cultural rights [131]-[136].
The judgment also addresses the status of human rights recognised by the HRA. The rights in s 28 may not be independently enforceable in every context, because the Act provides specific mechanisms for their operation. But that does not make the recognised rights irrelevant when deciding whether a statutory decision affects legal rights for Tang purposes [124]-[127]. The Court did not hold that s 28 creates an unconditional or freestanding right to a particular regulatory response.
For declaratory relief, the judgment reaffirms that a declaration may be available even where prerogative relief is unavailable, provided the applicant has the required interest and the case concerns a real controversy with useful consequences [151]-[155]. It also explains that s 59 of the HRA requires an arguable independent basis for relief before an s 58 claim can be added. An independent claim need not ultimately succeed, but an unarguable claim is insufficient [171]-[173].
The judgment leaves the general Tang test in place. It does not establish that every refusal to exercise a statutory power is reviewable, or that every alleged cultural impact is enough. The actual effect on the asserted rights remains a factual matter.
At [63], Doyle JA said that the JRA’s requirements concerning the nature of the decision and the applicant’s standing are both necessary, “not that they be the same”. In plain English, a decision can affect someone else’s legal rights while a different person, with sufficient standing, seeks review.
At [92]-[95], the Court addressed the argument that a refusal could qualify because exercising the power would affect rights. Doyle JA said the High Court’s formulation in Tang requires the decision itself to affect rights, and an intermediate appellate court could not depart from that formulation. The judgment therefore did not treat the unexercised power’s potential effects as enough.
At [133], the Court explained that the relevant concern was the “actual benefit or enjoyment” of the substantive relationship with the land and waters. In practical terms, the Court considered that the alleged harm to the Springs might impair the lived enjoyment of cultural rights, even if the abstract right remained recognised.
At [136], Doyle JA added that, at the least, the view that the decision was reviewable was arguable and not foreclosed by Tang. This matters because the case was about summary dismissal, not a final determination after evidence.
At [162], the Court said the possible obligation to consider exercising s 358 powers was “plainly arguable”. It did not decide that obligation existed. It found that the issue should not be disposed of summarily.
At [163], the Court described the Department’s communication as a “then final decision”. The possibility of revisiting the issue if circumstances changed did not necessarily make the existing decision provisional or hypothetical.
The judgment is most relevant where a public decision-maker has expressly considered, and declined at that time, a request to exercise a statutory power intended to prevent or control harm. The statutory scheme matters. The effect of a refusal cannot be assessed in the abstract: the Court stressed that the particular enactment must be examined [75].
The case may be relevant where a refusal to use a preventive regulatory power is alleged to have a direct practical impact on legally recognised rights. Here, the asserted connection was between the condition of the Springs and the ability of the represented Aboriginal peoples to maintain and enjoy a distinctive relationship with land and waters under s 28 [131]-[135]. The Court assumed the pleaded facts for the strike-out application; it did not find them proven.
It is also relevant where an applicant’s interests are affected by a decision that changes or affects another person’s rights or obligations. The applicant’s rights do not necessarily have to be the rights affected under Tang, although the applicant must independently meet the JRA’s standing requirements [62]-[69].
By contrast, the judgment cautions against treating a decision not to commence court proceedings as automatically reviewable. The Court viewed the s 505 decision as a choice about invoking the Court’s jurisdiction, not as a decision that itself altered rights [99]-[100]. A separate statutory decision with direct regulatory consequences may require a different analysis.
Finally, the case concerns a strike-out setting. It is not a final ruling that the Chief Executive acted unlawfully, that the alleged rights were impaired, or that a duty to exercise or consider a power existed. It identifies issues that were sufficiently arguable to proceed.
The judgment was delivered on 28 January 2026. The supplied judgment contains no account of later judicial treatment of this decision, so no conclusion about subsequent cases can be drawn from the available material.
The Court itself considered a range of earlier authorities. It applied Tang and Fuller v Lawrence in explaining the reviewability framework [56]-[58], and discussed Right to Life, Australian National University v Lewins and Agriwealth in relation to decisions not to exercise statutory powers [81]-[87]. It also acknowledged authorities taking a narrower approach to refusals [91]. Doyle JA did not resolve that wider disagreement by holding that every refusal can satisfy Tang. Instead, he distinguished a refusal that merely leaves a possible effect unrealised from a refusal alleged to have itself affected the s 28 rights [134]-[136].
For declaratory relief, the Court applied Ainsworth and Australian Conservation Foundation on justiciability, utility and sufficient interest [151]-[155]. It applied the Queensland Court of Appeal’s explanation in Brisbane City Child Care v Kadell concerning the breadth of the JRA s 48 power [177], and relied on Hunt v Gerrard in addressing appellate review and the scope of s 48 [176], [179].
The judgment discussed BZN and Innes on whether HRA rights have freestanding operation, but did not treat either as determinative of the issue before it [120]-[125]. It also referred to Hunt v Gerrard on the scope of s 48 and the standard of appellate review [176], [179]. These references describe the Court’s reasoning at the date of this judgment, not later treatment of the present decision.
Several questions were expressly left for later determination. First, the Court did not decide what cultural rights the represented group held in fact, or whether mining-related environmental effects impaired those rights. The content of the asserted cultural relationship and the factual effects on the Springs remained to be examined [105]-[107], [117], [135].
Second, the Court did not finally decide whether the Environmental Protection Act imposes a duty on the Chief Executive to consider exercising s 358 powers. It identified features that could support such an argument, including the Act’s objects, the standard criteria and s 359’s direction about what must be considered before an EPO is issued [161]-[162].
Third, the judgment did not settle the general question whether a refusal to exercise a power can satisfy Tang solely because exercising the power would affect rights. Doyle JA considered that the High Court’s formulation constrained an intermediate appellate court, and resolved this case on the asserted actual effect of the refusal on cultural rights [92]-[95], [134]-[136].
Fourth, the Court did not finally determine whether the Department’s decision contravened s 58 of the HRA. It held that an s 58 claim could accompany the arguable declaration claim under s 59, but did not decide the merits of the human-rights allegations [164]-[173].
Finally, the Court left open the ultimate availability of mandamus and injunction relief. It held only that those claims should not have been summarily dismissed because the asserted duty to consider the powers remained arguable [175], [182].
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Chief Executive, Department of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd [2026] QCA 7
PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT, SCIENCE AND INNOVATION / (appellant/cross-respondent) / v / NAGANA YARRBAYN WANGAN AND JAGALINGOU CULTURAL CUSTODIANS LTD / ACN 668 011 872 / (respondent/cross-appellant) / ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND / (first intervenor) / QUEENSLAND HUMAN RIGHTS COMMISSION / (second intervenor)
FILE NO/S: Appeal No 2558 of 2025 / SC No 1902 of 2024
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 132 (Burns J)
DELIVERED ON: 28 January 2026
DELIVERED AT: Brisbane
HEARING DATES: 19 November 2025; 20 November 2025
JUDGES: Mullins P, Boddice JA, Doyle JA
ORDERS: The appeal is dismissed. Leave is given to bring the cross appeal. The cross appeal is allowed (save as to the words “or s 43(1)(a) (in the nature of certiorari)” in paragraph 4(1) of the respondent’s application filed 16 February 2024). Paragraphs 1 and 3 of the Orders made on 6 June 2025 are set aside. It be ordered that: The relief claimed by the words “or s 43(1)(a) (in the nature of certiorari)” in paragraph 4(a) of the respondent’s application filed 16 February 2024 is struck out;The appellant’s application filed 5 March 2024 is dismissed;The appellant pay the respondent’s costs of that application. The appellant pay the respondent/cross appellant’s costs of the appeal and cross appeal.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS OF AN ADMINISTRATIVE CHARACTER – where the respondent claims to represent Aboriginal peoples with a close cultural connection to certain Springs and the surrounding land – where the Department of the appellant had issued an environmental authority to Adani Mining Pty Ltd (Adani) to enable the conduct of a mine subject to conditions – where the respondent requested the appellant exercise its statutory powers in particular under s 358(d)(iii) and s 505(1)(b) of the Environmental Protection Act 1994 (Qld) to prevent further mining activity near the Springs – where the appellant communicated by letter its decision not to exercise the powers in s 358 and s 505 of the Environmental Protection Act – where the respondent commenced proceedings by application for a statutory order of review and other relief – where the appellant filed an application that the respondent’s application be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) (JRA) or set aside pursuant to r 16 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where the primary judge set aside the application under s 20 of the JRA and for prerogative orders – where the primary judge did not set aside that part of the application seeking a declaration – where the appellant appeals from the refusal to strike out the whole of the application – where the respondent cross appeals from the primary judge’s decision to strike out the relief other than the claim for a declaration – where the appellant otherwise seeks to affirm the decision on a basis rejected by the primary judge, namely that the decision was not a final substantive decision – where the appellant also seeks to affirm the decision on the basis that the cultural rights under s 28 of the Human Rights Act 2019 (Qld) (HRA) do not satisfy the second limb in Tang – whether the appellant’s refusal to exercise its statutory powers was of the kind defined in s 4(a) of the JRA – whether the rights or obligations conferred, altered or affected must be those of the respondent – whether a decision not to exercise a power itself confers, alters or affects rights or obligations / ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – where the appellant did not exercise its power under s 505 of the Environmental Protection Act to commence proceedings against Adani – whether a decision not to commence a proceeding is a reviewable decision / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the peoples the respondent claims to represent hold distinct cultural rights recognised by s 28 of the HRA – where the primary judge found that the non-exercise by the appellant of the power to issue an environmental protection order does not of itself affect those human rights – where the respondent and second intervenor urge that s 48 of the HRA is relevant to the Environmental Protection Act and the JRA – where the first intervenor contends that s 48 is an interpretative provision directing the outcome of a constructional choice otherwise available under the statute being interpreted – whether s 48 of the HRA assists in determining if the decision falls within the meaning of the second limb of Tang / ADMINISTRATIVE LAW – DECLARATIONS – where the appellant contends there is no justiciable controversy and the decision lacked the necessary finality to be made the subject of a declaration – whether the appellant was obliged to consider the exercise of its powers under s 358 of the Environmental Protection Act – whether declaratory relief was available to the respondent pursuant to s 43 of the JRA or s 10 of the Civil Proceedings Act 2011 (Qld) / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where this Court must consider the impact of s 58 and s 59 of the HRA on the claim for declaratory relief – where by reason of s 59, s 58 can only be relied on by piggybacking on some other basis for relief – where the respondent contends that s 59(1) is a requirement of standing – where the second intervenor contends that the requirement is satisfied so long as there is a bona fide claim for relief other than under s 58 regardless of whether that claim is arguable – whether the respondent may piggyback on its claim for relief by way of declaration its claim based on contravention of s 58(1) of the HRA / ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – GENERALLY – where the primary judge dismissed the application for prerogative orders and injunctions under s 43 of the JRA – whether the primary judge was correct to dismiss the claims for prerogative orders / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the primary judge found that it was inappropriate for the proceedings for a statutory order for review under the JRA to be continued – where the respondent seeks leave of this Court under s 48(5) of the JRA in respect of the cross appeal – whether it was inappropriate for the proceedings for a statutory order for review to be continued / Civil Proceedings Act 2011 (Qld), s 9, s 10 / Environmental Protection Act 1994 (Qld), s 3, s 5, s 6, s 14, s 16, s 17, s 319, s 358, s 359, s 493A, s 505 / Human Rights Act 2019 (Qld), s 4, s 8, s 13(1), s 11(2), s 15, s 24, s 28, s 48, s 58, s 59 / Judicial Review Act 1991 (Qld), s 4, s 7, s 20, s 30(1), s 41(1), s 43, s 44, s 48 / Agriwealth Capital Ltd v Commissioner of Taxation (2019) 163 ALD 541; [2019] FCA 56, considered / Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, applied / Aurukun Bauxite Development Pty Ltd v State of Qld (2016) 222 LGERA 107; [2016] QSC 263, considered / Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, applied / Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, applied / Australian National University v Lewins (1996) 68 FCR 87; [1996] FCA 594, considered / Bourne v Queensland Building and Construction Commission [2018] QSC 231, cited / Brisbane City Child Care Pty Ltd v Kadell (2020) 5 QR 367; [2020] QCA 181, applied / BZN v Chief Executive the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266, considered / Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16, considered / Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15, cited / Fuller v Lawrence (2024) 99 ALJR 103; [2024] HCA 45, applied / Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied / Guss v Deputy Commissioner of Taxation (2006) 152 FCR 88; [2006] FCAFC 88, considered / Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165, cited / Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126, considered / Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623; [2020] QSC 293, considered / Joel v Migration Agents Registration Authority (2000) 110 FCR 202; [2000] FCA 1919, considered / Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; [2005] FCA 1528, cited / McKechnie v Secretary to the Department of Justice and Community Safety [2023] VSC 542, considered / Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34, applied / Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority (2008) 169 FCR 483; [2008] FCA 828, cited / Murphy v Legal Services Commissioner [2016] QSC 174, cited / Nona v Barnes [2013] 2 Qd R 528; [2012] QCA 346, considered / Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412; [2008] FCAFC 186, cited / Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, applied / Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2011) 86 ATR 108; [2011] FCA 1231, cited / Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50; [1995] FCA 33, considered / Scott v Steritech Pty Ltd [2025] FCAFC 110, cited / Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2019] 2 Qd R 82; [2018] QSC 170, cited / Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 145, cited
COUNSEL: J M Horton KC, with W A Isdale, for the appellant/cross-respondent / E N Nekvapil SC, with K M McAuliffe-Lake and C E M Viney, for the respondent/cross-appellant / G J D Del Villar KC SG, with K J E Blore, for the first intervenor / P Morreau KC, with H A R Edwards, for the second intervenor
SOLICITORS: C E Christensen, Crown Solicitor for the appellant/cross-respondent / Ninox Law for the respondent/cross-appellant / C E Christensen, Crown Solicitor for the first intervenor / Queensland Human Rights Commission for the second intervenor
MULLINS P: I agree with Doyle JA.
BODDICE JA: I agree with Doyle JA.
DOYLE JA: This appeal arises from a decision made by the appellant (the Chief Executive) under the Environmental Protection Act 1994 (Qld). It concerns whether that decision is amenable to a statutory order for review or other relief under the Judicial Review Act 1991 (Qld) (the JRA), or the Civil Proceedings Act 2011 (Qld) and in particular having regard to certain provisions of the Human Rights Act 2019 (Qld) (the HRA).
For the reasons which follow, in my view it was wrong for the primary judge to determine that it was inappropriate for the application for a statutory order of review and prerogative orders to proceed and accordingly to strike those parts of it out. The application by the respondent (Nagana) did involve a decision to which the JRA applied and in any event involved sufficiently arguable issues which could not be disposed of in a summary way, which were so interrelated with the declaratory relief sought by Nagana that all of the grounds of challenge to the Chief Executive’s decision would, in any event, and should be considered at a trial.
The Background
“This environmental authority authorises the environmental harm referred to in the conditions. Where there is no condition or this environmental authority is silent on a matter, the lack of a condition or silence does not authorise environmental harm.”
There were numerous other conditions including some affecting groundwater and the monitoring of groundwater quality: conditions E1 to E20; with other conditions concerning surface waters: conditions F1 to F29.
By an Environmental Protection Order (EPO) issued on 2 March 2023 by the Chief Executive under the Environmental Protection Act, as later varied, Adani was required to pause the commencement of underground mining until it “can demonstrate to the satisfaction of the department that the activity can be conducted in a way that does not exceed the approved impacts”; and for this purpose to undertake a second groundwater model review by 30 May 2024. That review was to address the findings and recommendations to be provided by the independent peer-reviewers. The decision to issue that EPO is the subject of challenge by Adani in the Planning and Environment Court, which proceedings remain unresolved.
The Department requested and obtained from independent peer-reviewers, CSIRO and Geoscience Australia, a technical advice report on the groundwater reports required under the environmental authority to which I have referred. That report, dated 28 April 2023, cast doubt upon the confidence which could be held in the groundwater modelling which had to that time been implemented. It recommended, inter alia, the development of an improved groundwater modelling report given the view it expressed that the current modelling report did not meet the requirements of one of the conditions of the approval.1
On 23 November 2023 solicitors acting for Nagana wrote to the Minister and the Department concerning aspects of Adani’s mining activities. A particular aspect of the concern was the effect of mining on Doongmabulla Springs (the Springs).
That letter was accompanied by reports of independent experts (Associate Professor Currell and Professor Adrian Werner). I shall return to aspects of one of those reports later in these reasons. The letter stated as follows:
“The purpose of this letter is for [Nagana] to request a decision by the administering authority under the EP Act… to urgently exercise available statutory powers under the EP Act to prevent any further open cut mining activity, until it can be satisfied with sufficient scientific certainty that there is not, and is no threat of, environmental harm to the Springs from that activity.
Available statutory powers include those conferred on the administering authority by s 358(d)(iii) or s 505(1)(b) of the EP Act.”
“Human rights
I have considered the matters in your letter, and sought advice, particularly in regard to the Human Rights Act 2019 (HR Act) about the matters you have raised.
First, the department accepts that the springs have exceptional ecological value and that they have spiritual significance to your clients. The department also acknowledges your statements about your clients’ obligations under the First Law.
…
Having regard to the matters in your letter, the department considers that any limitation of rights is likely to be reasonable and justified. This is owing to the objection process and the numerous court decisions which define the rights and entitlements of the various parties. This includes a full objection hearing in the Land Court with the result being a closely conditioned arrangement for the conduct of the mining activities.
Request for exercise of statutory power
Given the above, to the extent that any rights have been limited by the grant of the environmental authority and associated mining leases and the operation of the mine (including some limited impacts to the springs), the limitation is reasonable and justified.
I note that the precautionary principle is not engaged by s505 of the Environmental Protection Act 1994 (EP Act).
It follows that I cannot recommend that Adani cease open cut mining. Nor can I currently recommend that proceedings seeking orders under section 505 of the EP Act be brought. However, I note that your client may seek to bring proceedings itself if it is not content with the department’s decision.
Current environmental protection order (EPO)
You are aware that the department has issued an EPO to Adani Mining Pty Ltd (Adani) to require a second groundwater model review be completed and a report submitted by 30 May 2024.
…
The department will review the expert reports and the issues raised by Associate Professor Currell and Professor Werner to determine if there are any matters additional to those already identified by it, CSIRO and Geoscience Australia.
Next steps
…
If circumstances change and the department becomes aware of potential risks to the springs as a result of open cut mining, it will take appropriate action.”
It will be noted that:The cultural significance of the Springs to those who Nagana claims to represent is acknowledged;It would seem from the use in the letter of the language of the limitation of rights being reasonable and justified (language employed in the HRA to define a decision which is compatible with human rights), that the consideration of the HRA was itself confined to the impact of the grant of the original approval and the mining conducted pursuant to it;The letter was written before the Department had considered the Expert Reports submitted by Nagana; andIt was stated if the Department became “aware of potential risks to the Springs” it would take action. That at least implies that the Department proceeded on the basis that the material then available to it and considered by it did not identify a potential risk to the Springs.
The solicitors for Nagana sought reasons for the decision made by the Chief Executive but that request was declined by letter dated 19 January 2024.
Nagana commenced these proceedings by application for Statutory Order of Review filed 16 February 2024. The application was said to be made under s 20 and s 43(1)(a) of the JRA:
“… to review a decision, made by the [Chief Executive]… on 22 December 2023… to not exercise powers available under the [Environmental Protection Act] including the powers conferred by s 358, s 505, or both, to ensure the protection of [the Springs] from the impact of open cut mining operations undertaken on [the mining leases].”
“(3) [Nagana] is and represents a self-determined Wangan and Jagalingou group (the Group) with authority, connection and obligations under culture, laws and customs, in respect of the Springs.
The Group holds ‘distinct cultural rights’ within the meaning of s 28(1) of the [HRA], and has the ‘right’ referred to by that term in s 28(2) of the [HRA], including in respect of the Springs.
…
The Decision adversely affects the interests of the Group, and of [Nagana].”
“(2) In making the Decision, the [Chief Executive], a public entity, failed to give proper consideration to one or more human rights relevant to the decision, being the rights in ss 28, 15 and 24 of the [HRA].
The [Chief Executive] acted and made the Decision in a way that was not compatible with the human rights in ss 28, 15 and 24 of the [HRA].”
“(1) An order under s 30(1)(a) or s 43(1)(a) (in the nature of certiorari) of the [JRA] that the Decision be set aside.
An order under s 30(1)(b) or s 43(1)(a) (in the nature of mandamus) of the [JRA] that the [Chief Executive] make a new decision on the matter to which the Decision relates, in accordance with law, and subject to such directions as the Court may determine.
A declaration under s 30(1)(c) of the [JRA], or s 10 of the Civil Proceedings Act 2011 (Qld) (the CP Act), that the Decision was unlawful.
An injunction under s 43(1)(b) of the [JRA], or s 9 of the CP Act, to compel the [Chief Executive] to make a new decision on the matter to which the Decision relates, in a manner that is lawful.
…”
“a) is not a decision that creates, alters or otherwise affects any legal right or obligation of [Nagana];
b) does not comprise a final and operative or substantive determination constituting a decision amenable to review;
c) the purported decision not to commence a proceeding under s 505 is not a decision amenable to judicial review as amounting to either a judicial command to the Executive to commence proceedings, or so as to concern the courts with decisions as to who is to be prosecuted and for what.”
“To the extent the application for statutory order of review and for review filed on 16 February 2024… seeks a review or other relief under the [JRA], it is dismissed pursuant to s 48 of that Act.”
The Proceedings on Appeal
The Chief Executive appealed from the primary judge’s refusal to strike out the whole of the application (meaning the application for the declaration) so as to bring the proceedings to an end.
Nagana on the other hand cross appealed from the primary judge’s decision to strike out the relief other than the claim for a declaration. The Chief Executive filed a Notice of Contention seeking to support the strike out on a basis rejected by the primary judge, namely that the Decision was not capable of review under the JRA because it was not a substantive determination with any quality of finality. The amended Notice of Contention also contended that the strike out was correct as cultural rights under s 28 of the HRA cannot “satisfy Tang’s second criterion”.
Both the Attorney-General of Queensland and the Queensland Human Rights Commission intervened and have addressed submissions directed to both the appeal and the cross appeal but principally with respect to the impact of the HRA on the outcome in those appeals.
The Issues
I propose addressing the issues raised in the appeal and cross appeal in the following order even though this does not follow the sequence of the grounds of appeal, the grounds of cross appeal or the notice of contention.
The first is whether the Decision is a “decision to which this Act applies” within the meaning of the JRA? This only directly affects the application for the statutory order of review.
The second issue concerns the role, if any, of the HRA in determining the first issue.
The third issue is whether, quite apart from that part of Nagana’s application which depended upon there being a decision reviewable under s 20 of the JRA, relief by way of a declaration was available to Nagana pursuant to s 43 of the JRA or s 10 of the Civil Proceedings Act?
The fourth issue is to consider, again, the impact if any of the HRA in connection with the determination of the third issue.
Fifth, was it correct to dismiss the claims for the prerogative orders?
The final topic is to identify the test to be applied in determining an application under s 48 of the JRA or r 16 of the UCPR and that to be applied in this Court on appeal.
Before going to these issues, it is appropriate to set out some further background matters and some, but by no means all, of the relevant statutory provisions.
The Role of Nagana
In 2021 a determination was made by the Federal Court that native title did not exist in relation to any land or waters of the claim area (which included the Springs). That determination was made in respect of a claim made by a group calling itself the Wangan and Jagalingou People.2 Despite that, on the Chief Executive’s application to strike out Nagana’s application there was no examination of the merits of the claim by Nagana that it represented Aboriginal peoples with a close cultural connection with the Springs and the surrounding land. As already mentioned, the Decision itself was communicated in a letter which acknowledged that connection. Nor was any issue taken with the applicant being Nagana rather than the represented Group.3
In written submissions responding to the cross appeal, the Chief Executive at [16] stated that:
“…
d. Fourthly, at [38] Nagana vaguely suggests there were other ‘affected rights or obligations’ apart from its cultural rights under the [HRA]. However, apart from suggesting where such other rights may be ‘derived from’, it is not actually identified what these other rights or obligations were, let alone how they were affected. To the extent it is now suggested that a ‘system of Aboriginal law and custom’ is a source of any legally recognised rights (apart from cultural rights under the [HRA]), that cannot be accepted in circumstances where no native title is held by Nagana or the people it represents in areas which include the… Springs (where native title has been held not to exist).”
Environmental Protection Act4
The Environmental Protection Act has as its object to “protect Queensland’s environment while allowing for development which improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends…”: s 3. The expression “environment” is defined in s 8 in an expansive way to include the social, economic, aesthetic and cultural conditions that affect or are affected by, amongst other things, ecosystems and their constituent parts, including people and communities. “Environmental harm” is defined also in very broad terms in s 14, with s 16 containing a definition of “material environmental harm” which may be summarised as referring to non-negligible environmental harm. Serious environmental harm is defined in s 17 as including harm that is irreversible, of a high impact or widespread.
The Environmental Protection Act imposes various duties which preclude an activity which causes or is likely to cause environmental harm unless the person undertaking the activity takes all reasonable and necessary precautions to prevent or minimise the harm (referred to as the general environmental duty): s 319. It is an offence to do an act that causes serious or material environmental harm but a defence arises if that act is done under an environmental authority: s 493A(1) and (2).
Section 358 provides:
“358 When order may be issued
The administering authority may issue an order (an environmental protection order) to a person—
…
to secure compliance by the person with—
the general environmental duty; or
an environmental protection policy; or
a condition of an environmental authority; or
a development condition of a development approval; or
…
359 Standard criteria to be considered before issue of order
Before deciding to issue an environmental protection order, the administering authority must consider the standard criteria.”
“…
the character, resilience and values of the receiving environment; and
…
the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—
an environmental authority;
a transitional environmental program;
an environmental protection order;
a disposal permit;
a development approval; …”
“505 Restraint of contraventions of Act etc.
A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by—
the Minister; or
the administering authority; or
someone whose interests are affected by the subject matter of the proceeding; or…”
Judicial Review Act
“(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.”
“4 Meaning of decision to which this Act applies
In this Act—
decision to which this Act applies means—
a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)…
…
7 Meaning of person aggrieved
In this Act, a reference to a person aggrieved by a decision includes a reference—
to a person whose interests are adversely affected by the decision…”
“43 Application for review
An application for—
a prerogative order; or
a prerogative injunction;
must be made by way of an application for review.
An application for a declaration or injunction (other than a prerogative injunction)—
may be made by way of an application for review if it would be appropriate to do so having regard to—
the nature of the matters in relation to which relief may be sought; or
the nature of the persons against whom relief may be sought;
in an application for a prerogative order or prerogative injunction; and
may be made by way of an application for review, whether or not a prerogative order or prerogative injunction is sought in the application.
…”
“44 Who may make application
A person is entitled to make an application for review if the person’s interests are, or would be, adversely affected in or by the matter to which the application relates.”
“48 Power of the court to stay or dismiss applications in certain circumstances
The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—
it would be inappropriate—
for proceedings in relation to the application or claim to be continued; or
to grant the application or claim; or
no reasonable basis for the application or claim is disclosed; or
the application or claim is frivolous or vexatious; or
the application or claim is an abuse of the process of the court.
…”
Human Rights Act
There are a number of provisions of the HRA which are directly relevant to these proceedings. In particular the parties addressed the operation of s 58 and s 59. I will defer consideration of those sections until later in this judgment. However, other provisions should be referred to at this stage.
By the preamble the HRA recites that the Parliament of Queensland in enacting the Act recognised amongst other things that:
“… human rights have a special importance for the Aboriginal peoples and Torres Strait Islander peoples of Queensland… with their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition…”
The main objects of the HRA are to be achieved by, amongst other things: “requiring public entities to act and make decisions in a way compatible with human rights” (s 4(b)); and by requiring Courts to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights: (s 4(f)).
Human rights are defined to mean those rights stated in Part 2 Divisions 2 and 3: s 7. Those divisions, relevantly, include s 28 (but not s 48, s 58 or s 59). Section 8 provides:
“8 Meaning of compatible with human rights
An act, decision or statutory provision is compatible with human rights if the act, decision or provision—
does not limit a human right; or
limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”
Section 13(1) provides that a human right “may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.” Only individuals have human rights: s 11(2). Nagana does not itself therefore have human rights under the HRA. But again no issue was taken before the primary judge or on appeal as to its relevant standing as representing individuals who would have human rights under the HRA.
Sections 15 and 24 provide:
“15 Recognition and equality before the law
Every person has the right to recognition as a person before the law.
Every person has the right to enjoy the person’s human rights without discrimination.
Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
Every person has the right to equal and effective protection against discrimination.
Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
24 Property rights
All persons have the right to own property alone or in association with others.
A person must not be arbitrarily deprived of the person’s property.”
“28 Cultural rights—Aboriginal peoples and Torres Strait Islander peoples
Aboriginal peoples and Torres Strait Islander peoples hold distinct cultural rights.
Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community—
to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and
to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and
to enjoy, maintain, control, protect and develop their kinship ties; and
to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and
to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources.
Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture.”
“48 Interpretation
All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
This section does not affect the validity of—
an Act or provision of an Act that is not compatible with human rights; or
a statutory instrument or provision of a statutory instrument that is not compatible with human rights and is empowered to be so by the Act under which it is made.
This section does not apply to a statutory provision the subject of an override declaration that is in force.”
Issue 1 – Is it a decision to which the JRA applies?
There are two broad topics which arise under this issue. The first is whether there was a decision at all; and the second is whether if there was, it was one which meets the description of a decision to which the Act applies in s 4(a) of the JRA.
It is appropriate to commence with Griffith University v Tang (2005) 221 CLR 99. In that case a committee of the University had made a decision to exclude Ms Tang from her PhD candidature for academic misconduct. While the University was established pursuant to a statute, and derived capacity to manage its own affairs in that way, it was held that the decision was not one made under an enactment at all. The relationship between the University and Ms Tang was voluntary and her exclusion took place under the University’s Academic Misconduct Policy which was formulated as an internal policy for the operation of the University.
The question was whether that decision had the character of being of an administrative one made or proposed to be made or required to be made under an enactment (the language employed in s 4(a)).
In this regard Gummow, Callinan and Heydon JJ stated:
“[79] The decision so required or authorised must be ‘of an administrative character’. This element of the definition casts some light on the force to be given by the phrase ‘under an enactment’. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
[80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
…
[85] The legal rights and obligations which are affected by the authority of the decision derived from the enactment in question may be those rights and obligations founded in the general or unwritten law….
[86] However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations…
…
[89] The determination of whether a decision is ‘made . . . under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise…” (citations omitted).
Ms Tang could not establish that any decision was made under an enactment which affected her (or anyone’s) rights or obligations.
In Fuller v Lawrence (2024) 99 ALJR 103, a prisoner had been released from custody subject to a supervision order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). That supervision order (as it was required to do) required the prisoner to comply with every reasonable direction of a corrective services officer. A direction was given which allowed some form of contact with, but precluded in person contact with, a named person. The issue arose whether that direction was a decision within the scope of s 4(a) of the JRA. It was held that it was such a decision. Neither party sought to challenge the application of the test from Tang: [15]. It was cited in the unanimous reasons of the Court with apparent approval. The Court did not accept the contention that the second limb of the test in Tang had not been met, which was argued to be on the basis that the decision did not itself confer, alter or affect the rights of the prisoner, the source of which was and remained the court order; namely the supervision order. The direction decision was held to derive from the enactment, even if not solely from the Act. That was sufficient.
Primary Judge’s Reasons
“[27] … Prior to any request being made of the Minister, [Nagana] did not have any legal right to the exercise of any powers under the [Environmental Protection Act]. As such, even accepting as I do for at least the purpose of this application that the applicant holds the ‘distinct cultural rights’ recognised by s 28 of the [HRA], the non-exercise of powers by the [Chief Executive] under the [Environmental Protection Act] could have no effect on those rights. To the point, the so-called ‘inaction’ on the part of the [Chief Executive] of which [Nagana] complains could not limit [Nagana’s] rights under s 28 of the [HRA], whether substantially or at all. As such, the decision ‘did not create any liability for [Nagana]; nor did it affect any existing right of [Nagana] or create any right or obligation in [Nagana] going forward.’ To be clear, I do not accept [Nagana’s] contrary arguments based in part on what was said in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health, a case which was of course decided before Griffith University v Tang. Nor was I persuaded that the principle laid down in Griffith University v Tang should be confined in the way suggested in Agriwealth Capital Ltd v Commissioner of Taxation.
[28] It follows in my view that the decision of the [Chief Executive] under consideration was not a decision to which the [JRA] applies…” (citations omitted).
Was There Any Decision?
Is it a Decision of the Kind Defined in s 4(a)?
Affected Rights or Obligations, not the Aggrieved Person’s Rights etc.
In my view it is wrong to confine consideration to whether the applicant’s (aggrieved person’s) rights are conferred, altered or affected, and the primary judge to that extent was in error.
The JRA itself differentiates between the nature of the decision (in s 4(a)) and the standing of the persons entitled to bring proceedings to have the decisions reviewed (in s 7(a)). The entitlement to apply for a statutory order of review requires that both these features be present (not that they be the same): s 20(1).
The second limb of Tang, when discussing what amounted to a decision to which the JRA applies, draws upon the language of s 4(a) to characterise the decision as being one which is administrative (not legislative or judicial) made under an enactment and which “confers, alters or otherwise affects legal rights or obligations”. It does not state that the rights or obligations conferred, altered or affected must be those of the applicant (though in that case they were).
Moreover, there is authority which suggest that this is not the intended effect of either Tang or the JRA.7
In Aurukun Bauxite Development Pty Ltd v State of Qld [2016] QSC 263 Jackson J stated:
“[35] … In my view, there is no requirement that the relevant rights and obligations flowing from a decision made under an enactment must be the rights or obligations of the applicant. Judicial review under pt 3 of the JRA is a public law remedy. The standing of an applicant is dealt with by the requirement in s 20 that an applicant be ‘a person aggrieved’.
[36] In part, s 7 of the JRA provides:
In this Act, a reference to a person aggrieved by a decision includes a reference—
to a person whose interests are adversely affected by the decision; or…
There is no additional qualification that the legal rights or obligations affected by a decision made under an enactment must be those of the applicant...”
“Gummow, Callinan and Heydon JJ expressly acknowledge that a decision affecting the obligations of a decision-maker potentially fall within this second criterion:
…
Thus, provided that there is an effect, deriving from an enactment, on a decision-maker’s obligations, it matters not whether the decision only affects an applicant’s interests... To the extent that the second criterion set out above focuses on the obligations of decisions-makers, it appears to be irrelevant whether the challenged decision affects the rights, interests, or, indeed, privileges of an applicant.”8
“There is nothing in the Tang test which requires that the rights and duties affected be those of the applicant. They may be those of a third party. … [A] person whose interests are affected by the decision has standing to challenge it no matter whose rights and duties the decision affects, as long as it affects the rights and duties of someone.”9
It would greatly diminish the scope of the entitlement to seek a statutory order of review if the decision itself had to be one which confers, alters or otherwise affects legal rights or obligations of the aggrieved person. The definition of “a decision to which this Act applies”, in my view, is not to be construed in that way.
The primary judge referred to the reasons of Edmonds J in Guss v Commissioner of Taxation (2006) 152 FCR 88 for the view he adopted that the rights affected must be those of the aggrieved person.10 In this respect however, Edmonds J differed from the other member of the court.
Gyles J considered that the giving of the notice pursuant to s 222APE of the Income Tax Assessment Act 1936 (Cth) “affected” legal rights or obligations of both the commissioner and the recipient: at [5], [8]. Greenwood J proceeded on a similar basis: at [65]-[66].
Edmonds J referring to Tang suggested:
“[41] …When their Honours [Gummow, Callinan and Heydon JJ] said: ‘the decision must itself confer, alter or otherwise affect legal rights or obligations’, they could only be speaking from the point of view of the person who is ‘aggrieved by [the] decision’, not the decision-maker.”
Were Rights or Obligations Conferred, Altered or Affected?
It then becomes necessary to consider whether the decision affected rights (Adani’s or Nagana’s)? I will consider rights under the HRA separately in Issue 2 below, and so for practical purposes this present discussion only concerns Adani’s rights (though the approach discussed will be relevant in relation to Issue 2).
No generalised answer can be given, and whether a decision is one to which the JRA applies will require an examination of the particular statute under which it is made.
Under the Environmental Protection Act an EPO may be issued to “secure compliance” with the general environmental duty (s 358(d)(i)) or a condition of an environmental approval (s 358(d)(iii)) amongst other circumstances. The language employed shows that the person to which the EPO might be directed is already under an obligation to do something, but the EPO is made in order to secure compliance with that obligation. In one sense, therefore, the decision even if made to issue an EPO, will not itself confer, alter or affect rights or obligations of that person and accordingly, it could be argued the decision not to issue such an EPO could not itself confer, alter or affect rights or obligations of that person.
But the decision to issue an EPO will expose the recipient to a criminal sanction: s 361. It also exposes the person to the risk of proceedings under s 505 arising from the commission of an offence or threatened offence, not only at the behest of the Minister or Department but someone whose interests are affected by the subject matter of the EPO. This is a “new legal jeopardy”: Fuller at [22]. Such a decision would, in my view, satisfy the second limb of Tang. If a decision to issue an EPO was made the decision would confer, alter or affect obligations (imposing an additional one on Adani).
But that is not sufficient for the purposes of the appeal because the decision made was to not issue the EPO. Does that make a difference?
The JRA itself does not use language that directly answers this. It is necessary to return to the test in Tang. There the plurality said (as to the second limb) “the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.”11
Some authority can be found for the proposition that this second limb of Tang will be met in respect of a decision not to exercise a power which though not itself affecting rights would, if exercised in a different way, confer, alter or affect rights or obligations. The primary judge discussed this issue at R [27].
“… If the Secretary had reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor would clearly be a person aggrieved and would in my view be entitled to seek a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case? The answer does not lie in my opinion in the mere form of condition (e)(i) as to absence of awareness on the part of the Secretary and the absence of a direction under condition (e)(ii). By saying in the letter received on 31 August that ‘I have been presented with no evidence that this condition is not being met’ (3rd par, last sentence) and ‘You have raised nothing which would warrant my acting to stop the trials’ (4th par, last sentence), he made a decision refusing to give a direction under condition (e)(ii) of Item 3. In the ADJR Act, a reference to the making of a decision includes a reference to doing or refusing to do a relevant act or thing (ADJR Act, s 3(2)(a), (b) and (g)). It was a decision which had ‘the character or quality of finality’; it was an ultimate or operative decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336 and 338. See also General Newspapers Pty Ltd v Telstra Corporation at 170 per Davies and Einfeld JJ.”
“… I agree with [the primary judge] that a decision to exercise that power would be a ‘decision’ within the meaning of the AD(JR) Act. That is not, of course, the present case. No such decision was made here. But again I agree with the primary judge that a final refusal to give such a direction also constituted such a ‘decision’. There can be no doubt that in its letter dated 16 August 1994, Right to Life requested such direction. The reply dated 31 August made it clear that it had been decided not to give it. That decision was not expressed to be provisional only or to be otherwise qualified. It was a final and ultimate decision not to give the direction. In my opinion, as an administration decision under the Regulations it fell within the scope of s 5(1) of the AD(JR) Act as a decision under the ‘enactment’. (The latter term is defined by s 3(1) to include a decision under ‘an instrument (including ... regulations ...) made under ... an Act ...’.)”
“The terms of condition (e) are not expressed so as to confer any power upon the Secretary to direct that the trial not be conducted or be stopped. The condition for the continuance of the exemption is that the Secretary has not given such a direction. However, I am prepared to construe the Regulations on the footing that a grant of power to give such a direction necessarily is implicit in condition (e): see Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303. However, what is implied is power to give the direction, if the Secretary has become aware that to conduct or to continue the trial would be contrary to the public interest.
It follows that a decision to direct that a trial not be conducted or be stopped is made under the Regulations. Likewise, a refusal to make such a direction is, relevantly, a decision under that enactment for the purposes of s 5(1) of the ADJR Act.”
“There is also no doubt or dispute that the decision not to recommend the appellant for promotion (which in practical terms amounted to a decision that he would not be promoted) was a decision of an administrative character. The issue between the parties is, thus, whether it was a decision made under an enactment. ‘Enactment’ means, among other things (s 3(1)) an Act (again, with certain exceptions that do not matter) or ‘an instrument (including rules, regulations or by-laws) made under such an Act’.”
“[60] Tang did not concern a decision not to exercise a power. In my opinion, the High Court did not intend to qualify the approach in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357. In that case, Lockhart J, Beaumont J and Gummow J held that the Secretary’s letter, received on 31 August 1994, refusing to exercise his authority under the Regulations to direct that the use of a drug for clinical trials should cease, was a reviewable decision under the ADJR Act...”
“[62] In my opinion, the better view is that Tang does not decide that where an administrative decision to exercise a statutory power is ‘made… under an enactment’ a decision not to exercise that statutory power is not ‘made… under an enactment’ because it cannot be said to have generated new rights or affected existing rights...”
“[60] … That question was whether the particular decision of the university to exclude Ms Tang, derived from the enactment (that is, Griffith University Act), the capacity to affect legal rights and obligations so as to lead logically to the conclusion that the decision was ‘made under an enactment’. The conjunction of the ‘affect upon legal rights and obligations’ (or the capacity to so affect) and the derivation of that affect from an enactment under which the decision is made, gives rise to the justiciable significance contemplated by their Honours that merits a right of judicial review in those aggrieved.”
In Nona v Barnes [2012] QCA 346, Fraser JA (at [21]-[23]) discussed whether a decision is one to which the JRA applies where, if exercised it would confer, alter or affect rights or obligations, even if the decision was to not exercise that power. His Honour left the question unresolved as it was not necessary to do so in that case. The issue was, however, sufficiently arguable to be mentioned and reserved.
In Joel v Migration Agents Registration Authority (2000) 110 FCR 202, Conti J noted at 229-30 “that it is not necessary for a reviewable decision for the purposes of s 5 that it directly affect legal rights, so long as it has some real or practical effect (Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 142), cited with approval by the Full Federal Court in Salerno v National Crime Authority (1997) 75 FCR 133 at 137; 144 ALR 709 at 713.”
There is however, a body of authority which would be inconsistent with the approach above and which requires that the decision itself confer, alter or affect legal rights such that a decision not to exercise a power generally will not meet that description: e.g. Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority (2008) 169 FCR 483 at [25]; Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412 at [21]; Eastman v Besanko (2010) 244 FLR 262 at [13], [227]; Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2019] 2 Qd R 82, Ryan J at [133], [137]-[138]; Murphy v Legal Services Commissioner [2016] QSC 174 at [74]-[75].
There are a number of reasons why it is arguable that the proper construction of s 4(a) of the JRA would recognise, as a decision to which the JRA applies, a decision not to do the thing which, if done, would confer, alter or affect rights or obligations. That is, that the focus is on the nature of the capacity of the decision, if made in a particular way, to affect rights and not whether the decision made does so.Such a view is supported by the remarks in each of Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health; Australian National University v Lewins; and Agriwealth Capital Ltd v Commissioner of Taxation referred to above.It is consistent with the explanation offered by Greenwood J in Guss v Deputy Commissioner of Taxation.The language of s 4(a) that a decision can be one within s 4(a) made or proposed to be made shows that the JRA can be engaged before the decision is made. It accordingly contemplates that something can (or might) be a decision captured by s 4(a) before it is known whether it will in fact be exercised in a way that will directly confer, alter or affect rights or obligations. The same can be said of s 21 which refers to conduct engaged in for the purposes of making a decision, in terms referred to in that section as a proposed decision.The test in (and ) was expressed in a context where the question now being addressed did not arise for consideration. In both cases decisions adverse to the applicant had been made and the issue was only whether that decision could be said to be made under an enactment. In the decision was not made under any enactment. In , the decision and its ability to affect Mr Lawrence were said to derive from the (Qld) even if the mechanics of it affecting Mr Lawrence involved the obligation to comply with the supervision order and directions contemplated by it.
Is the s 505 Decision Different?
The further issue arises whether s 505 is in a different category? I have set out the section above, but it states that a proceedings may be brought in Court for an order to remedy or restrain an offence or threatened offence, and that those proceedings may be commenced by the Minister, the administering authority or relevantly by someone whose interests are affected by the subject matter of the proceeding. There was a decision made by the Chief Executive not to commence those proceedings.
The Chief Executive contended below, and on appeal, that a decision not to commence a proceeding under s 505 of the Environmental Protection Act is not amenable to judicial review because it is not one which confers, alters or affects rights, and has no finality. It is, it was submitted, a decision merely to approach a court which affects no rights. This is consistent with the observations in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Mason CJ suggested at 337-8 that a reviewable decision is generally one which is “final or operative”, unless that statute provides for the making of a decision, and a “substantive determination.”
It is arguable that the Chief Executive had an obligation to consider the exercise of this power and having given it consideration to make a decision whether or not to do so: Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at [72], [74]-[75], [79]. It is a power conferred in order to protect the environment against conduct which the Environmental Protection Act identified as offences and to exercise that power would appear to be consistent with the object of that Act.
But does it satisfy the second limb of Tang? If that question is approached without regard to the HRA the answer in my view is that it does not.
In my view the primary judge was correct in finding that a decision made under it does not confer, alter or otherwise affect legal rights or obligations: R [30]. The decision is whether or not to invoke the Court’s jurisdiction to vindicate pre-existing rights and liabilities.12 Even if proceedings had been commenced, it is the substantive determination of the Court, not the decision to commence proceedings, that is capable of affecting rights or obligations.13
Issue 2: The Impact of the HRA on the Issue of Affecting Rights?
What Are the Rights?
“3 Main objects of Act
The main objects of this Act are—
to protect and promote human rights; and
to help build a culture in the Queensland public sector that respects and promotes human rights; and
to help promote a dialogue about the nature, meaning and scope of human rights.
4 How main objects are primarily achieved
The main objects are to be achieved primarily by—
stating the human rights Parliament specifically seeks to protect and promote; and
requiring public entities to act and make decisions in a way compatible with human rights; and
requiring statements of compatibility with human rights to be tabled in the Legislative Assembly for all Bills introduced in the Assembly; and
providing for a portfolio committee responsible for examining a Bill introduced in the Legislative Assembly to consider whether the Bill is compatible with human rights; and
providing for Parliament, in exceptional circumstances, to override the application of this Act to a statutory provision; and
requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights; and
conferring jurisdiction on the Supreme Court to declare that a statutory provision can not be interpreted in a way compatible with human rights; and
providing for a Minister and a portfolio committee to report to the Legislative Assembly about declarations of incompatibility; and
providing for how to resolve human rights complaints; and
providing for the Queensland Human Rights Commission to carry out particular functions under this Act, including, for example, to promote an understanding and acceptance of human rights and this Act in Queensland.”
As a general proposition it can be seen that the objects and the means of achieving them are directed to legislative, executive or judicial action, and not the wider community. The human rights recognised by the HRA have been described as not freestanding, and that is not an inapt, albeit general, characterisation. The application of the recognition of human rights is governed by other provisions of the HRA, namely as to: what must be stated when introducing a Bill into Parliament and the scrutiny to be given to it (ss 38-41); the rules to be applied by Courts when interpreting other statutes and procedural matters in Court (ss 48-52); the obligations on public entities (ss 58-59); and complaints to the Commission (s 64 and following) for example. The most directly relevant of these for present purposes are s 48, s 58 and s 59.
Section 7 defines human rights to mean the rights ‘stated’ in Part 2 Division 2 (relevantly in s 28).14 What are the rights stated in that section?
Section 28(1) recites that Aboriginal peoples and Torres Strait Islander peoples “hold distinct cultural rights”. What those rights are is not defined in the HRA though some context is provided by paragraph 6 of the Preamble to which I have referred, and by s 28(2). I do not however read s 28(1) as defined by s 28(2). Just what are the distinct cultural rights of any group of Aboriginal peoples or Torres Strait Islander peoples is a factual enquiry. That enquiry has yet to be undertaken. The holding of those rights is, however, included as a human right being a right ‘stated’ in s 28.
The same can be said of each of the enumerated rights referred to in s 28(2). The Explanatory Notes for the Human Rights Bill, when discussing clause 28, state that it is modelled on the United Nations Declaration of the Rights of Indigenous Peoples, articles of which recognise that Indigenous peoples have the right “to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas (article 25); to conserve and protect the environment and the productive capacity of their lands, territories and waters (article 29); and to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions (article 31).” In respect of s 28(2) the Explanatory Notes state:
“Subclause (2) recognises the rights of Aboriginal peoples and Torres Strait Islander peoples to live life as an Aboriginal or Torres Strait Islander person who is free to practise their culture. The practise of culture includes, for example: the right to enjoy and maintain identity and culture; to maintain and use Indigenous languages; to maintain kinship ties; a freedom to teach cultural practices and educations to their children; the right to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.”
Again the nature and content of the cultural heritage, practices and relationship with the land and waters is a factual enquiry which has yet to be undertaken.
Additionally, s 28(2) not only refers to the series of enumerated rights, but itself states that Aboriginal peoples or Torres Strait Islander peoples must not be denied those rights. At least arguably the directive that they must not be denied those rights is itself a human right (a protective right) stated in Part 2 Division 2 within the meaning of s 7 (albeit not identified using the noun “right”).15
Primary Judge’s Reasons
“…As such, even accepting as I do for at least the purpose of this application that [Nagana] holds the ‘distinct cultural rights’ recognised by s 28 of the [HRA], the non-exercise of powers by the [Chief Executive] under the [Environmental Protection Act] could have no effect on those rights. To the point, the so-called ‘inaction’ on the part of the [Chief Executive] of which [Nagana] complains could not limit [Nagana’s] rights under s 28 of the [HRA], whether substantially or at all. As such, the decision ‘did not create any liability for [Nagana]; nor did it affect any existing right of [Nagana] or create any right or obligation in [Nagana] going forward’...” (bold added; citations omitted).
Section 48 of the HRA
It was urged by Nagana and the Queensland Human Rights Commission that s 48 of the HRA was relevant to the consideration of both the operation of the JRA and the Environmental Protection Act.
Section 48(1) of the HRA contains a direction that all statutory provisions must to the extent possible that is consistent with their purpose be interpreted in a way that is compatible with human rights. If that is not possible, then s 48(2) states that the provision is to be interpretated to the extent possible that is consistent with its purpose, to be most compatible with human rights.
The Attorney-General submitted that s 48 is to be applied as an interpretive provision directing the outcome of a constructional choice otherwise available under the statute being interpreted, and not additionally in a way which furthers the protection of human rights (in argument referred to as a remedial approach to interpretation) where such an outcome is not open as a constructional choice from the language of the statute being construed. The former approach has the attraction of being consistent with the language used in s 48(1) and (2) that a provision is to be interpreted in a particular way (suggestive of a construction of the provision) rather than that the provision is to have effect in a particular way (which is more suggestive of the desired outcome). It is the construction I would adopt recognising that context may lead to a construction which does not mirror the literal meaning of the words used. This is consistent with Momcilovic v The Queen (2011) 245 CLR 1 per French CJ at [46], [50], Gummow J at [146], [170]-[171], Hayne J at [280], Crennan and Kiefel JJ at [565]-[566], Bell J at [684]; Athwal v Queensland (2023) 16 QR 218 at [91].
It has not been made apparent how s 48 might affect the interpretation of the JRA in any material way. The present concern is whether the Decision is one within the scope of s 4(a) of that Act as a “decision to which this Act applies”. I do not accept the submission made for Nagana that s 48 somehow informs the interpretation of the word ‘decision’ in s 4(a). But the operation of that section of course depends on the terms of the other enactment, in this case the Environmental Protection Act.
Section 48 of the HRA may have a role to play in relation to the Environmental Protection Act.Whether a particular power conferred is wholly discretionary, or one which carries with it an obligation to consider its exercise (and then decide whether to exercise it) might be affected by the operation of s 48 of the HRA. Section 358 appears to be a discretion to exercise a power which would have as its objective avoiding adverse impacts on the environment. Whether that is a non-compellable discretion or one which the Chief Executive can be required to consider exercising is in issue between the parties and involves a constructional choice. A construction that required the Chief Executive to at least properly consider and decide upon its exercise would seem both consistent with the purposes of the and also compatible with the human rights stated in s 28 of the .Further, the Standard Criteria include the character resilience and values of the receiving environment: subparagraph (e). The environment is defined in s 8 in the way referred to above. If otherwise there was some doubt about it, s 48 of the would require interpretation of these provisions (and the reference to the values of the environment) in a way compatible with human rights which include those identified in s 28 of the . Such a construction may be appropriate in any event having regard to s 6 of the which states:
“6 Community involvement in administration of Act
This Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests of, industry, Aborigines and Torres Strait Islanders under Aboriginal tradition and Island custom, interested groups and persons and the community generally.”
The Chief Executive, under s 359 before deciding to issue an EPO, would have to consider as part of the standard criteria the values of the social, economic and cultural conditions of the receiving environment. Section 48 would properly be used in the interpretation of those values as including the human rights recognised under s 28 of the HRA.
Moreover, s 359 gives no explicit direction as to the purpose of considering the standard criteria. No doubt as a matter of construction of the Environmental Protection Act the object of any consideration would be to arrive at a decision in furtherance of that Act’s purposes. Section 48(1) would direct that the provisions of the Environmental Protection Act be interpreted to the extent possible consistent with those purposes, in a way “compatible with” the s 28 human rights.
Are Human Rights Affected by the Decision Not to Issue an EPO?
Not Freestanding Rights
There was only one reason given for the contention that they were not eligible for consideration as rights for the purposes of the second limb of Tang, and that was the contention that the HRA does not establish them as freestanding rights.
The Attorney-General (whose submissions in this respect were adopted by the Chief Executive) urged that the rights recognised under s 28 of the HRA were not freestanding and the circumstance that their enjoyment may be affected cannot satisfy the second limb in Tang. The principal reason for this was that otherwise the right would become ‘untethered’ from the operation of the HRA and in particular s 8 and s 13.16 Nagana in its submissions seemed to accept that no freestanding human right was created by the HRA.17 Counsel for the Queensland Human Rights Commission urged a different approach. It was submitted, in substance, that the HRA recognises and protects rights and the rights cannot be dismissed as irrelevant unless by operation of s 59 a question relying on s 58 can be brought before the court.18
The Attorney-General relied on BZN v Chief Executive the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266. In that case a social worker sought review under the JRA of a determination by the Chief Executive (purportedly acting under a section of the Child Protection Act 1999 (Qld)) that allegations of harm caused by the applicant to a young person at a care home had been established. Part of BZN’s case was that the decision was unlawful under s 58 of the HRA. But additionally, it was argued that BZN’s human rights were affected by the decision: at [62]. It is not clear what right was referred to. In any event Crowley J states:
“[64] BZN relies upon this statement as authority for the proposition that, for the purposes of the second limb of Tang, legal rights which may be affected by a decision include the human rights set out in the HRA.
[65] I do not accept that submission…
[66] Moreover, BZN’s argument cannot be accepted because the HRA does not create legal rights that have free-standing operation. Rather, it identifies certain human rights that are to be protected and promoted by public entities. It does so by operation of s 58, which makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or to make a decision which fails to give proper consideration to human rights relevant to the decision. The Act then further provides, by s 59, that a person may seek a declaration of unlawfulness in respect of an act or decision of a public entity which affects their recognised human rights under the Act, but only if they may seek relief or a remedy in respect of the act or decision other than because of s 58. In other words, the human rights recognised by the Act do not establish legal rights that may be independently vindicated or enforced, but a declaration of unlawfulness in respect of an act or decision that affects those human rights may be ‘piggybacked’ on another claim for relief or a remedy that arises independently of the HRA.” (citations omitted).
“[197] The [HRA] does not give the human rights stated in it any free-standing operation. Rather, the [HRA] sets out the human rights which Parliament seeks to protect and promote, and contains operative provisions by which those human rights may be protected and promoted.”
In a later paragraph of her Honour’s reasons it appeared that this was to be understood as her Honour’s preferred and not solid conclusion: at [202].
The same issue arose in Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126 where relief was sought declaring various directions made by the chief health officer to be unlawful to the detriment of rights including under the HRA. Bond JA considered that the statutory conferral of jurisdiction by s 10 of the Civil Proceedings Act to hear an application for declaratory orders was, by force of s 48 of the HRA, to be construed in a context which includes the statutory recognition of human rights set out in the HRA: at [104]. The other members of the Court expressly reserved their acceptance of that approach as unclear: Brown JA at [128], Ryan J at [129].
None of these cases is determinative of the present issue. Section 28 declares those rights to exist. Many of those rights referred to in s 28 do not owe their origin to the HRA (save for perhaps the protective right) but their recognition in the HRA cements them as rights recognised by our law. They are rights Parliament specifically seeks to protect and promote: s 4(a). The HRA provides specified means of applying the recognition of those rights in the various situations to which I have referred, such that in that sense the rights are said to not be freestanding rights capable of independent enforcement.
However, the circumstance that application of the identified human rights occurs under the HRA and are in that sense not freestanding does not deprive the recognised rights of their significance as rights, if that is otherwise material, as it is to the application of the second limb of Tang.
Nor do I accept the submission that to recognise them as rights is incompatible with the proper construction of the HRA because of the provisions of s 8 and s 13. The former provides that a decision is compatible with human rights if it limits the human rights only to the extent that is reasonable and demonstrably justified under s 13. Section 13 further elucidates when the human rights may be limited. Neither would on its face appear directed to the abrogation of the human rights, but in any event provide criteria for determining the scope for legitimate limiting of human rights. As a matter of construction they are not incompatible with the rights in s 28 being recognised as rights subject to that legitimate limitation.
Accordingly:The rights recognised by s 28 are (assumed to be) rights of those who Nagana claims to represent.In my view it is not the proper construction of the HRA to deny that recognition or treat the rights as irrelevant save where the right arises for consideration under another section of the (and in this case s 58 and s 59).
Second Limb of Tang
The remaining and important question is whether that is sufficient to make the Decision one to which the JRA applies having regard to the second limb in Tang.
As already mentioned, the second limb of Tang requires that “the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.”19 It does not follow from the inclusion of the term ‘itself’ that the conferral, alteration or affect must emanate solely or derive its force solely from the enactment: Fuller v Lawrence [2023] QCA 257 at [24].
I will not repeat my discussion above of the scope of this second limb. Unlike the discussion above concerning whether a decision not to exercise a power which did not affect rights and would not satisfy the second limb of Tang, the position with respect to the rights enjoyed by Nagana (or those it claims to represent) is, in my view for the reasons below, at least arguably different.
In one sense it may be accepted that the non-exercise by the Chief Executive of the powers under s 358 (or other provisions of the Environmental Protection Act) does not confer, alter or affect those rights of Aboriginal peoples recited in and recognised by s 28; at least if the rights are expressed as an abstract notion. The right, for example, to maintain and strengthen the Aboriginal peoples’ relationship with the land and waters might be said to persist as a right if the decision is taken not to exercise the power to issue an EPO where, and even though, the mine activities (as is alleged) prejudicially affect the Springs.
But, that right may be altered in a practical sense if the nature of the land or waters is affected so as to prevent or impair the strength of that relationship. Whether that is so is a factual enquiry. The right may be affected by any conduct which causes harm (as alleged) to the land and the waters, not because the nature of the right itself is diminished but because the quality of its enjoyment or fulfilment is or may be diminished.
The position then is that under s 358 (after considering the standard criteria in s 359) the Chief Executive made a decision not to issue an EPO which would, had it issued, it is to be assumed gone at least some material way towards preventing the erosion of the enjoyment of the human rights recognised by s 28. That decision is of an administrative character and is a decision which itself alters or affects, other than in mere name, the rights held by those Nagana claims to represent. It is true that the cause of the impairment of those rights is the alleged environmental harm caused by others. But the very nature of the enactment under consideration is directed to the prevention of environmental harm by others. Where the nature of the rights enjoyed are described as distinct cultural rights, the enjoyment (and maintenance) of cultural heritage, and spiritual practices, and the maintenance of a distinctive spiritual, material and economic relationship with land and waters, it is not the mere veneer of the legal right to those things being referred to, but the actual benefit or enjoyment of the substantive relationship with the land and waters.
Is the Decision as to Section 505 Different?
As before, it is necessary to separately consider the decision made not to exercise the power under s 505 and the impact if any of the HRA on whether that decision satisfies the second limb of Tang.
The issue of an EPO can stop the alleged conduct impairing the human right, such that the non-exercise of that power can, in the sense described above, affect human rights. On the other hand, the non-exercise of the power under s 505 to commence proceedings lacks that relationship. The exercise of that power would invoke the court’s jurisdiction to decide a controversy but would not itself or in any way affect human rights.
One answer to this, as contended for by Nagana and the Queensland Human Rights Commission, was that the effect of the HRA when read with the Environmental Protection Act might be to impose on the State a duty of some character to protect human rights and thus a duty to commence proceedings under s 505.20
I do not agree that this can be achieved by a reading of s 505 with the benefit of the interpretive provision, s 48 of the HRA. The submissions made seek to give the rights recognised under the HRA a freestanding operation (beyond merely recognising them as rights) which they do not have.
On the view I have expressed the Decision, if it had been confined merely to a decision not to commence proceedings under s 505 of the Environmental Protection Act, would not be reviewable. It would have been correct for the primary judge to carve out of the relief sought in the application that part concerning s 505 and to strike out the application in so far as it refers to that section.
Issue 3: The Declaration Relief
The Chief Executive’s application relied on both s 48 of the JRA and r 16 of the UCPR to dismiss the claim for declaratory relief.
As to that the primary judge at R [33] correctly expressed the view that the power ought to be used only in the clearest of cases. His Honour continued as follows:
“[34] As to this, [Nagana] submitted that, whatever may be the position under the [JRA], there was a clear case for declaratory relief under the CP Act which should be allowed to go to trial. In that regard, it was claimed [Nagana] has a ‘special interest’ of sufficient strength to support the grant of declaratory relief. This was said to be founded on several propositions which, when gathered together, may be summarised as follows.
[35] First, the [Chief Executive] accepted in their 22 December 2023 letter that the Springs have ‘spiritual significance’ to [Nagana]. Second, [Nagana] has obligations to care for the Springs which are protected by s 28(2) of the [HRA]. Third, the non-exercise of powers by the [Chief Executive] in this instance was unlawful within the meaning of s 58(1) of the [HRA], albeit not invalid. Fourth, this question of lawfulness gives rise to a justiciable controversy, that is to say, a legal controversy ‘concerning rights, liabilities and interests of a kind which are protected or enforced in the courts’. Fifth, the question is real, not hypothetical. Sixth, a declaratory order will produce foreseeable consequences for the parties.
[36] Most of these propositions are of course disputed by the [Chief Executive] but, assuming [Nagana] has standing and that a satisfactory case can be made out regarding the proposition that the non-exercise of powers by the [Chief Executive] was unlawful within the meaning of s 58(1) of the [HRA], there can be no doubt a declaration is the appropriate remedy. However, the [Chief Executive] submitted in this regard there could be no, or limited, utility in the grant of declaratory relief in the absence of an order in the nature of certiorari or mandamus which, for reasons already discussed, are not available. It was also submitted that [Nagana] would not be entitled to declaratory relief because such relief would not determine a legal controversy concerning rights, liabilities or interests of a kind protected by the courts. Whilst considerations such as these, if made good, might very well be influential to the exercise of the discretion whether to make a declaration, I would not be prepared at this stage to deny [Nagana] the right to proceed to that ultimate determination…” (emphasis added; citations omitted).
The Form of the Application
The Chief Executive’s submissions on appeal were: (i) that the application for statutory order for review having been dismissed, there was no separately identified basis remaining in the application filed by Nagana for the making of any declaration; or alternatively (ii) any such claim would fail because there was no justiciable issue or the decision lacked the required element of finality to be made the subject of a declaration.
Nagana submitted, and with some justification, that the issue as to the form of Nagana’s application is not one urged by the Chief Executive at first instance and should not be considered on appeal.21 However, I do not need to discuss that further. On a fair reading of it, the form of the application, in my view, shows that Nagana relied, for its declaration, upon each of the grounds that it relied upon for its challenge of the decision under s 20 and s 22 of the JRA. It is open, in my view, on the form of that application for Nagana to seek a declaration that the decision by the Chief Executive not to exercise powers under the Environmental Protection Act was contrary to the scope of those powers properly construed under the Environmental Protection Act and, if necessary, the HRA and was unlawful.
Public Law Right to Challenge and Seek a Declaration
Subject to the resolution of any question of standing, the law recognises that a sufficiently interested party can approach the Court and obtain a declaration as to improper administrative actions taken or failed to be taken by the executive.
For the purposes of this appeal it is necessary to refer to only two authorities.
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 the Criminal Justice Commission had prepared a report concerning the poker machine industry in Queensland. The report was furnished to the various Parliamentary officers or members and in due course tabled in Parliament. The report was highly critical of the Ainsworth Group and contained a recommendation that members of that group not be permitted to participate in the gaming machine industry in Queensland. The report had been prepared without any enquiry being made of the Ainsworth Group and without informing it of the Commission’s interest or its intention to report with respect to them.
The Court was critical of the way in which the report was prepared and in particular that it was prepared in breach of the obligation of procedural fairness imposed upon the Commission in discharge of its statutory functions.
There was no doubt as to the standing of the Ainsworth Group to seek relief and the discussion in that case focused upon what, if any, remedy would be available to it given that the report had already been finalised, tabled and as a result published to the world. For reasons which it is unnecessary here to explore mandamus and certiorari were not available to Ainsworth.
But at 581-82 the Court stated:
“It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy…
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties.’” (citations omitted).
In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 a developer required approval for overseas funding of the development of a resort in Queensland. The required approval was granted and the Conservation Foundation commenced an action seeking declarations, injunctions and other orders to challenge the approval granted.
It is sufficient for these purposes to refer to the reasons of Gibbs J (as his Honour then was).22 Having construed the relevant legislation Gibbs J concluded that the action was not brought by the Conservation Foundation to assert a private right. His Honour continued, at 526-27:
“It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.
The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction. In Boyce v. Paddington Borough Council, Buckley J. stated the effect of the earlier authorities as follows:
‘A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with ...; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.’
…
Although the general rule is clear, the formulation of the exceptions to it which Buckley J. made in Boyce v. Paddington Borough Council is not altogether satisfactory. Indeed the words which he used are apt to be misleading. His reference to ‘special damage’ cannot be limited to actual pecuniary loss, and the words ‘peculiar to himself’ do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression ‘special damage peculiar to himself’ in my opinion should be regarded as equivalent in meaning to ‘having a specia1 interest in the subject matter of the action’…” (citations omitted).
“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”
From these two decisions (and many others) it follows:The relief of a declaration is available even if prerogative relief is not, provided there is a justiciable controversy and utility in the remedy;That relief can be sought by someone having sufficient standing, namely someone having a special interest in the subject matter of the action, which at least means something beyond mere intellectual or emotional concern, or concern for compliance with the law.
It is not contested that Nagana (or at least those it claims to represent) has a sufficient and special interest. Apart from the contention as to the form of the application for relief, the basis of the challenge is that the Decision lacks finality, that there is no justiciable controversy and no utility in the declaration.
The primary judge (in the passage emphasised in the quote from his Honour’s reasons above) only found that there was a justiciable controversy because of the operation of s 58 of the HRA. A difficulty with that approach is that s 58 is only available if a claim for relief in respect of it can be piggybacked onto a claim otherwise arising: s 59(2). This is a matter to which I shall return below. On the primary judge’s reasoning, there was no other relief available to Nagana under the application for statutory order of review or the prerogative orders.
Given the view I have taken above, I do not agree with the primary judge’s conclusion as to there being no other relief available to Nagana under the application for statutory order of review. But if my view as to that does not prevail, nonetheless in my view the claim for declaratory relief arises out of a justiciable controversy independently of s 58 of the HRA.
The primary judge stated at R [31]:
“…. Although it was submitted in writing on behalf of [Nagana] that the [Chief Executive] was ‘under obligations at least akin to a duty of the kind that might be imposed by equity, or [a] duty of care, to the Custodians, in respect of the exercise of available powers to protect the Springs’, that submission was not greatly developed at the hearing. It would in any event be surprising if the [Chief Executive] owed [Nagana] a duty to consider the exercise of what are clearly expressed to be discretionary powers under the [Environmental Protection Act], and even more surprising if an order for mandamus could be called in aid to compel it to do so…” (citing Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, [12]).
In my view his Honour’s remarks should be understood as doubting whether there was some private duty owed by the Chief Executive to Nagana to consider the exercise of the power under s 358. That is, as doubting Nagana had a private right to vindicate. But the Chief Executive relies on this passage as amounting to a finding that the Chief Executive has a discretionary power (in submissions it was referred to as a “true administrative discretion”) which did not give rise to any duty to consider the exercise of the power.23 From that it is said there can be no justiciable controversy because to consider it would be not to determine legal controversies but to answer an abstract question: Ainsworth v Criminal Justice Commission, supra at 582: Chief Executive’s appeal reply submissions at [13(b)].
I do not accept this submission. The issue whether the Environmental Protection Act itself properly construed required the Chief Executive to consider the exercise of (and then to decide whether to exercise) the powers conferred on the Chief Executive is an open and plainly arguable one. The decision cited by the primary judge for the view his Honour expressed in R [31] is in relation to provisions which are substantially different from the Environmental Protection Act. For example, s 195A(4) of the Migration Act 1958 (Cth) discussed in Minister for Immigration and Border Protection v SZSSJ explicitly stated (relevant to the decision there under consideration) that:
“The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.”
There are some powerful reasons to imply an obligation on the Chief Executive to consider the exercise of the powers conferred under s 358. Parliament specified what had to be considered before deciding to issue an EPO: s 359. This at least suggests that consideration was to be given, and in a guided way, to achieve some evident objective. The object of the Environmental Protection Act would also be better served if there was such an obligation: s 3 and s 5. It is however unnecessary for me to express a concluded view as to this. The point is plainly arguable.
None of the contentions advanced on behalf of the Chief Executive (that there was no justiciable issue or the decision lacked the required element of finality to be made the subject of a declaration) can be accepted. There is in my view a justiciable controversy. The Chief Executive had made a decision not to act. It is true that the letter communicating the Decision suggested that if things changed the Chief Executive would act. But that could be said of most administrative decisions. Moreover, it amounts to a contention that something must change before the Chief Executive would act. What was communicated was a then final decision. The nature of Nagana’s contention is that that Decision is unlawful for various reasons set out in paragraph 1 of its application. There is utility in declaring that it is an irregularly made decision at least (as is arguable) if there is an obligation on the Chief Executive to properly consider the exercise of the powers conferred under s 358, whether or not things change.
Issue 4: The Impact of s 58 and s 59 of the HRA in the Declaration Relief
“58 Conduct of public entities
It is unlawful for a public entity—
to act or make a decision in a way that is not compatible with human rights; or
in making a decision, to fail to give proper consideration to a human right relevant to the decision.
…
To remove any doubt, it is declared that—
an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
59 Legal proceedings
Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
…
A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
…”
By s 58(1)(a) and (b) the Chief Executive (it is argued) would act unlawfully in certain situations. One (a substantive provision) is if the Chief Executive (as public entity) acts or makes a decision in a way not compatible with human rights. The other (procedural) is if in making a decision the Chief Executive fails to give proper consideration to a human right relevant to the decision.
However, s 59 ensures that s 58 can only be relied on by ‘piggybacking’ on some other basis for seeking relief or a remedy. The limits of this were the subject of submissions by the parties.
The parties on the appeal focused on the scope of the expression ‘may seek’ when used in s 59(1) and s 59(2). Senior Counsel for Nagana submitted that s 59(1) was merely a requirement of standing: that the person seeking relief has standing to seek relief or remedy other than because of s 58. Senior Counsel for the Queensland Human Rights Commission contended that the requirement was satisfied if the person had or could bona fide bring a claim for relief or remedy other than because of s 58 even if the claim to the remedy itself was not arguable. The analogy, it was said, is to be drawn with decisions as to the jurisdiction of Federal Courts where a non-federal claim is joined with a federal one, where the latter is dismissed or abandoned.
Allsop J in Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773 stated at [36]:
“… It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction…”
An exception to this arises where the federal claim is “colourable”. In other words, it has been “made for the improper purpose of ‘fabricating’ jurisdiction”: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212 at 219.
The High Court recently addressed the issue in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216. Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ at observed:
“[35] … for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
[36] That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction.
[37] Thus… the federal jurisdiction of… [a court] under s 77(i) … of the Constitution is not engaged, by the assertion of a claim or defence that amounts to ‘constitutional nonsense’ or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.”24
I do not believe this is an apt analogy or that it is the correct construction of s 59(1). The section provides that a person may seek ‘something’. It is not directed to the jurisdiction of the court to hear an application. The ‘something’ is not merely to commence proceedings, however flawed, but to seek relief or remedy. It is sufficient that the relief or remedy is arguably available, and so much is made clear by s 59(2). But that sub-section affirms that a person may rely on s 58 even if that person “may not be successful in obtaining relief or remedy on the ground” other than s 58. The reference is to another basis for claim that ‘may not’ succeed; not one that ‘will not’ succeed. This language in my view ensures that an arguable other claim for relief or remedy will suffice. What it does not say is that unarguable claims for relief or remedy will suffice. In my view the other basis for relief must be bona fide and arguable. It is unnecessary for this appeal to consider the question (raised by some commentators) whether it is sufficient if such a claim could be made or whether it must have been made in the relevant proceedings which seek also to rely on s 58.
There have been a number of cases where the meaning of ‘may seek’ has been discussed but there is no authoritative determination of its meaning contrary to that expressed above. In McKechnie v Secretary to the Department of Justice and Community Safety [2023] VSC 542 at [30] Ginnane J (on an application for preliminary discovery) expressed the requirement of the Victorian analogue of the HRA to be that the applicant:
“… is not entitled to seek relief or remedy on the ground that the defendants have acted incompatibly with his Charter rights unless he has at least an arguable case that he otherwise may seek relief or remedy in respect of an unlawful act or decision of the defendants...” (emphasis added).
Issue 5: Prerogative Orders
The primary judge also dismissed the application for prerogative orders or injunctions made under s 43 of the JRA.
The primary judge’s reasons for his dismissal of the application for the prerogative orders and injunctions are set out in R [31].As to certiorari, his Honour rightly concluded that it was inappropriate for this relief to proceed to trial because the “function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights” referring to Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [28]. The Decision in this case did not foreclose the Chief Executive making a decision to issue an EPO or take any other steps.As to mandamus and the injunctions, Nagana contended the Environmental Protection Act required the Chief Executive to consider the exercise of (and to decide whether to exercise) the powers conferred on the Chief Executive. It was not contended that had not been done. But as set out above, the Chief Executive had stated that further consideration would only be given to the exercise of powers if circumstances changed. On one view this might be said to be a statement of a refusal to exercise the obligation to consider the exercise of the power. It is not necessary to express a concluded view as to this, it being sufficient (as discussed below) that the question is fairly arguable. In those circumstances, it cannot be said there is nothing to compel the Chief Executive now to do (namely to give proper consideration to the exercise of the powers on the known circumstances) and accordingly the relief by prerogative order in the nature of mandamus or an injunction should not be summarily dismissed.
Issue 6: The Tests for Strike Out
Section 48 of the JRA confers upon the Court the power to stay or dismiss an application under either s 20 or s 43 “or a claim for relief in such an application” in four situations which the section lists. The power conferred by this section would extend to the whole of Nagana’s application including the claim for relief by way of declaration: Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126 at [113].
This Court in Brisbane City Childcare Pty Ltd v Kadell (2020) 5 QR 367 explained the operation of s 48(1)(a), at [55] as follows:
“These authorities suggest that the circumstances in which the power should be exercised to dismiss summarily an application under the Act on the ground set out in s 48(1)(a) should not be read down by reference to paras (b), (c) and (d) of s 48(1). Instead s 48(1)(a) should operate fully according to its terms which makes it subject only to the constraint that the inappropriateness relates either to the continuation of the proceeding or the granting of the application. Paragraphs (b), (c) and (d) of s 48(1) are more likely to apply where there is unlikely to be any error demonstrated on the part of the decision-maker, although lack of any error is not an essential pre-condition to the application of those paragraphs. Because of the breadth of the power under s 48(1)(a), that provision is not confined to cases where error is demonstrated. The authorities show that s 48(1)(a) can be used, however, even if error on the part of the decision-maker could be shown, where there is good reason for otherwise not allowing the proceeding to continue or not granting the relief sought. That may include that no practical consequences would flow from the outcome or there is an alternative practicable or preferable means for addressing an applicant’s complaint which may not fall strictly within s 12 or s 13 of the Act. As the granting of any relief in respect of an application for judicial review is discretionary, it may be that where the Court foresees that in a particular case it would exercise the discretion to refuse the relief, that may also be an appropriate case for summary dismissal under s 48(1)(a). The test of ‘inappropriate’ makes the power under s 48(1)(a) ‘a broad one’. It is not necessary for the purpose of this application to identify all the categories of cases to which it could apply. It is sufficient to say that it will include the category of case where there may have been an error, but the circumstances in which the decision was made and/or the subsequent events or the circumstances of the parties’ ongoing relationship do not warrant addressing in a proceeding under the Act whether there was error by the decision-maker.”
The only basis upon which it was contended that it would be inappropriate for the proceedings to continue was because the Decision was not one which was amenable to a Statutory Order for review or relief by way of declaration. The application was confined to a contention based upon the terms of the JRA, the Environmental Protection Act and in so far as is material, the HRA without consideration of any factual matters.
In relation to the appeal to this Court, it has been determined in Hunt v Gerrard at [89] that:
“The proper application of each criterion specified in ss 48(1)(a), 48(1)(b), 48(1)(c) and 48(1)(d) demanded an evaluative judgment which would give rise to a unique outcome (namely whether the relevant text of the statute had, on its proper construction, been met), an outcome to which there was only one legally permissible answer. Accordingly, the applicable standard of appellate review is the ‘correctness standard’ as explained in Warren v Coombes...”
Pursuant to s 48(5) of the JRA an appeal (in this case the cross appeal) from an order made under that section can only be brought with the leave if this Court. Having regard to the significance of the issues involved, quite apart from my view as to merits of the cross appeal, that leave should be granted.
In my view the primary judge was wrong to conclude it was inappropriate for the proceedings for a statutory order for review under the JRA to be continued. The cross- appeal ought to succeed. This is for a variety of reasons.For the reasons I have given it was wrong to conclude that the Decision was not one to which the JRA applied (within the scope of s 4(a)). That is sufficient to allow Nagana success on the cross appeal. On the view I have expressed the Decision if it had been confined merely to a decision not to commence proceedings under s 505 of the Environmental Protection Act, would not be reviewable.At the very least, there are a number of reasonably arguable contentions (discussed above) as to the operation of the second limb of Tang, and the effect of the HRA which bear upon that issue which made it not inappropriate to have the proceedings proceed.That is all the more so when the same grounds were (as determined by the primary judge) able to be agitated in connection with the claimed relief of a declaration.
As to the prerogative relief claimed, only the proposed order for certiorari is something which in my view is not potentially available. The primary judge was in my view in error in determining that the relief by way of mandamus and injunction ought to be struck out.
As to the appeal itself, it ought to fail.This is in part because Nagana’s application for a statutory order of review should not have been struck out.But as well, the declaratory relief is properly claimed by Nagana (representing the Group) and involves a justiciable controversy from a decision having the required element of finality.
Costs should follow the event.
Conclusion
The appeal is dismissed.
Leave is given to bring the cross appeal.
The cross appeal is allowed (save as to the words “or s 43(1)(a) (in the nature of certiorari)” in paragraph 4(1) of the respondent’s application filed 16 February 2024).
Paragraphs 1 and 3 of the Orders made on 6 June 2025 are set aside.
It be ordered that: The relief claimed by the words “or s 43(1)(a) (in the nature of certiorari)” in paragraph 4(a) of the respondent’s application filed 16 February 2024 is struck out; The appellant’s application filed 5 March 2024 is dismissed;The appellant pay the respondent’s costs of that application.
The appellant pay the respondent/cross appellant’s costs of the appeal and cross appeal.
CSIRO/GA report at “Summary”. ↩
Malone v Queensland (No 5) (2021) 397 ALR 397. ↩
In so far as the issue of Nagana’s standing was discussed below, the Chief Executive accepted it was arguable: T 1-7 line 8 to T 1-8 line 13. ↩
All references are to the Act as it was at the time of the Decision by the Chief Executive (that is current as at 22 November 2023). ↩
Since repealed. ↩
Since repealed. ↩
Conversely, in Halsbury’s Laws of Australia, Nathan Moshinsky QC suggests at [10-11205] ‘Construction’ that the decision in Tang “emphasised the requirement that for a decision to be justiciable under the ADJR Act, the decision must impact on the legal rights of the applicant” (emphasis added). ↩
Page 71. ↩
Page 101 at 5.6.8. ↩
R [27] at footnote 11. ↩
Griffith University v Tang (2005) 221 CLR 99, 130 at [89] (Gummow, Callinan and Heydon JJ). ↩
Holzinger v Attorney-General (2020) 5 QR 314 at [50].
Chief Executive, Department of Environment, Science and Innovation
Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd [2026] QCA 7
(1992) 175 CLR 564
(2016) 222 LGERA 107
(1990) 170 CLR 321
(1980) 146 CLR 493
(1996) 68 FCR 87
(2022) 276 CLR 216
(2010) 244 FLR 262
(2024) 99 ALJR 103
(2005) 221 CLR 99
(2006) 152 FCR 88
(2000) 110 FCR 202
(2005) 226 ALR 773
(2011) 245 CLR 1
(2008) 169 FCR 483
(2008) 172 FCR 412
(2018) 264 CLR 1
(1995) 56 FCR 50
(2015) 236 FCR 169
(1985) 157 CLR 290
(1990) 25 FCR 125
(1997) 75 FCR 133
(2016) 259 CLR 180
(1987) 18 FCR 212
(2021) 397 ALR 397
Appeal dismissed; leave to bring the cross-appeal granted and the cross-appeal allowed except as to the certiorari relief; specified primary-court orders set aside, the Chief Executive’s application dismissed, and the Chief Executive ordered to pay the respondent’s costs of that application and the appeal and cross-appeal.
The first is Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50. The proceedings concerned a decision made by the Secretary of the Department not to prevent some medical institutions trialling a drug for the termination of early pregnancy.
The relevant Act permitted the trialling of therapeutic goods on conditions, one of which (imposed by Item 3 of the Regulations) was “the Secretary must not, at any time… have directed that the trial not be conducted, or be stopped…”. The applicant had approached the Secretary to give a direction pursuant to that item of the Schedule of the Regulations but the Secretary refused to do so. In discussing whether the refusal to give a direction, which, if given would have altered the status quo, the Secretary can be said to have made a decision which was reviewable under the Commonwealth equivalent of the JRA, Lockhart J said, at 62:
If free to do so, I would hold that s 4(a) of the JRA would capture such a decision (to not issue an EPO where the nature of the enactment was that a decision if made to issue the EPO would affect rights).
However, in both Tang and Fuller the High Court adopted language describing the nature of a decision which is captured by s 4(a) of the JRA. Even recognising that each enactment must be considered according to its own terms, the test for determining whether a decision is of an administrative character made or required to be made under an enactment so as to fall within s 4(a) of the JRA is settled by the reasoning in the High Court. The test articulated by the High Court requires, inter alia, that “the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.” It is not for an intermediate appellate court to depart from that test formulation.
A contention that a decision not to issue an EPO is to be treated as satisfying the second limb of Tang merely because a decision had it been made to issue an EPO would affect rights, ought to be rejected. But as discussed, when considering the impact of the HRA under Issue 2 below, it is not necessary to express a concluded view on this in the present case.
While for the reasons I have given the authoritative position is that it is likely a decision not to exercise a power will not satisfy the second limb of Tang merely because of the capacity of the power to affect rights (namely that if exercised it would affect rights), the contention being advanced by Nagana and the Queensland Human Rights Commissioner goes further. It is contended that the decision not to exercise the power itself had an impact on the human rights. This is not a situation of an untapped capacity to affect rights, but the rights being affected.
In my view that is correct. Accordingly, assuming that facts are made out at a trial relevant to the nature of the cultural rights and that they are impaired by the alleged environmental impact on the Springs of the conduct of the mine, in my view the Decision is one for which a statutory order of review can be sought under the JRA and that it therefore ought not to have been struck out.
At the least this is an arguable view not foreclosed by the discussion in Tang. For that reason (as an alternative to the view expressed in the preceding paragraph) I would have held that it was not inappropriate for the application for a statutory order of review to proceed to trial.
Bourne v Queensland Building and Construction Commission [2018] QSC 231 at [18]-[19] (Douglas J); Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2011) 86 ATR 108 at [24] (Foster J). ↩
Nagana’s application also referred to the rights in s 15 and s 24 of the HRA but those provisions were not specifically addressed. In any case, consideration of them would not add materially to consideration of the rights identified in s 28. ↩
Senior Counsel for the Human Rights Commission submitted it was a right to protection from denial of rights. ↩
Appeal transcript T1-50 lines 9-21; T1-51 lines 7-20. ↩
Appeal transcript T1-47 lines 36-44. ↩
Appeal transcript T2-21 lines 1-16. ↩
Griffith University v Tang (2005) 221 CLR 99, 130 at [89] (Gummow, Callinan and Heydon JJ). ↩
For Nagana it was advanced by way of drawing an analogy (or metaphor) to equity and the common law such that by granting the original environmental approval there was an assumption of responsibility on the State to act to prevent harm: Appeal transcript T 1-36 lines 10-20. For the Commission it was put equivocally as invoking s 58 “at least’: Appeal transcript T 2-9 lines 20-34. ↩
Appeal transcript T1-14 lines 25-35. ↩
The other members of the Court, other than Murphy J, expressed reasons to like effect. ↩
Appeal transcript T1-8 line 44 – T1-9 lines 4-30. ↩
Applied more recently in Scott v Steritech Pty Ltd [2025] FCAFC 110, Banks-Smith, Meagher and Kennett JJ at [52]. ↩