Federal Court of Australia|1994-05-05|Before: Carr J

Malcolm Mcdonald Douglas and Valerie Anne Douglas v the Hon Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs Western Australia, Minister of Lands of Western Australia and Minister of Aboriginal Affairs [1994] FCA 1066 (5 May 1994)

MALCOLM McDONALD DOUGLAS AND VALERIE ANNE DOUGLAS v. THE HON ROBERT TICKNER,

MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

AUSTRALIA AND MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN

AUSTRALIA v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE

Administrative Law - judicial review - Aboriginal heritage - preservation and protection of significant Aboriginal area - two consecutive ministerial decisions prohibiting development of land for 30 day periods - periods expired - permanent prohibition subsequently imposed - whether applicants persons aggrieved by first two decisions prohibiting development - whether jurisdiction exists to review - assuming jurisdiction exists, whether applications futile and should be stayed or dismissed - discretionary considerations.

Australian Institute of Marine and Power Engineers v. Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124

Perry v. Director of Public Prosecutions [1985] FCA 182; (1985) 6 FCR 578

La Roche v. Cormack [1991] FCA 627; (1991) 33 FCR 414

Beitseen v. Johnson (1989) 29 IR 336

Ogle v. Strickland (1987) 13 FCR 306

Park Oh Ho v. Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637

W H Broadbridge v. Stammers (1987) 16 FCR 296.

Tooheys Ltd v. Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64

Davis v. Commonwealth [1986] HCA 66; (1986) 68 ALR 18

Sherritt Gordon Mines Ltd v. Federal Commissioner of Taxation [1977] VicRp 42; (1976) 10 ALR 441

General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Webster v. Lampard [1993] HCA 57; (1993) 116 ALR 545

Robinson v. Western Australia (1977) 138 CLR 283

Victoria v. The Commonwealth (the AAP Case) [1975] HCA 52; (1975) 134 CLR 338

Solicitors for the Applicants: Mallesons Stephen Jaques

Solicitors for the Respondent: Australian Government Solicitor

Solicitors for the Applicants: Crown Solicitor for the State of

Western Australia

Counsel for the Respondent: Mr P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

1. The objections to competency filed by the respondent on 15 March

1994 and 6 April 1994 respectively be disallowed at this stage on

the basis that the issue raised therein be determined at the hearing

of the respective applications.

2. The motions filed by the respondent on 15 March 1994 and 6 April

1994 respectively be dismissed.

3. Costs in respect of those objections and motions be reserved.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

CARR J It is possible that this is the first matter in which an Australian State has applied pursuant to s.5 of the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act") to a Court for judicial review of a decision made by a Minister of the Commonwealth of Australia. I have not been referred to any previous instance, nor have I been able to find one. However, that is not the point which is at present before the Court. No question has been raised at this stage of the proceedings as to whether a State is a "person" for the purposes of the Judicial Review Act.

2. In each of these applications the respondent has filed notices of objection to competency pursuant to Order 54 Rule 4 of the Federal Court Rules and has also filed notices of motions to dismiss or alternatively to stay indefinitely each application.

3. The point raised, which is common to each objection and each motion is whether, in respect of each application, the respective applicant is a "person who is aggrieved" by the respective decision sought to be reviewed judicially. The right to apply for judicial review is conferred by s.5 of the Judicial Review Act on "A person who is aggrieved by a decision".

4. There are four separate applications. The applicants in two of the applications (WAG 26 and WAG 39) are the State of Western Australia ("the State"), Minister for Lands of the State of Western Australia ("the Minister for Lands") and Minister for Aboriginal Affairs of the State of Western Australia ("the State Minister for Aboriginal Affairs"). The applicants in the other two applications, Malcolm McDonald Douglas and Valerie Anne Douglas are the lessees named in a special lease granted to them by the Minister for Lands on 31 January 1994 of approximately 22 hectares of land near Broome in Western Australia ("the Land"). The terms of that special lease require Mr and Mrs Douglas (who own and operate a crocodile park near the Land) to commence construction of a crocodile park on the Land within nine months of the commencement of the lease, to complete construction of those works within two years from the commencement of the lease and not to use the Land for any purposes other than as a crocodile park, without the prior approval of the lessor.

5. On 3 February 1994 the respondent (whom I shall also describe as "the Commonwealth Minister for Aboriginal Affairs") made a declaration under s.9(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Commonwealth Aboriginal Heritage Act"). I shall refer to the decision to make that declaration as "the First Decision". That declaration recited the fact that the Commonwealth Minister for Aboriginal Affairs being satisfied:

(a) that the Land is a significant Aboriginal area; and

(b) is under serious and immediate threat of injury or

desecration;

declared that for the preservation and protection of the Land from injury or desecration certain acts (specified in Schedule 2 to the Declaration) must not be carried out without the Minister's consent during the period of thirty days beginning on the day on which the declaration was published in the Gazette. The prohibited acts were described as:

"1. Bulldozing, grading, drilling or excavating, or any other act

that will, or is likely to, injure or desecrate the area or

part of the area described in Schedule 1.

2. Deliberately killing, cutting down, damaging or removing any

vegetation within the area described in Schedule 1."

The area described in Schedule 1 was the Land.

6. That declaration was published in the Commonwealth Gazette of 4 February 1994.

7. In the Commonwealth Gazette of 4 March 1994 the Commonwealth Minister for Aboriginal Affairs published another declaration, this time under s.9(3) under the Commonwealth Aboriginal Heritage Act, which omitting formal parts read as follows:

"I ROBERT EDWARD TICKNER, Minister for Aboriginal and

Torres Strait Islander Affairs, being satisfied that

it is necessary to do so, declare under sub-section

9(3) of the Aboriginal and Torres Strait Islander

Heritage Protection Act 1984 that the declaration I

made on 3 February 1994 under subsection 9(1) of the

Act, which came into effect on 4 February 1994, shall

remain in effect for the further period of 30 days

commencing on 6 March 1994."

8. I shall refer to the decision to make that declaration as "the Second Decision".

9. On 3 March 1994 the State, the Minister for Lands and the State Minister for Aboriginal Affairs filed in this Court an application for an order of review of the First Decision and a decision by the respondent not to revoke the declaration which formed the subject matter of the First Decision. The grounds of that application were stated as being failure to observe the rules of natural justice and procedural fairness, error of law, that the declaration was not authorised by the Commonwealth Aboriginal Heritage Act, that there was no evidence to justify making the declaration, failure to take relevant matters into account and Wednesbury unreasonableness (that is, unreasonableness to the requisite degree). On 29 March 1994 the same applicants filed an application to review the Second Decision on similar grounds.

10. On 3 March 1994 and 31 March 1994 Mr and Mrs Douglas filed applications to review the First Decision and the Second Decision respectively on grounds substantially similar to those described above.

11. On 15 March 1994 the respondent filed notices of objection to competency and notices of motions to dismiss or alternatively stay indefinitely the two applications in respect of the First Decision. On 6 April 1994 the respondent filed similar notices of objections to competency and notices of motion in respect of the two further applications. The four motions and objections were heard together on 12 April 1994.

12. It was common ground that on 6 April 1994 the respondent made a declaration under s.10 of the Commonwealth Aboriginal Heritage Act prohibiting, in similar terms to the First Decision, development of the Land for a period of five years.

13. Section 5(1) of the Judicial Review Act relevantly provides as follows:

"5(1) A person who is aggrieved by a decision to

which this Act applies that is made after the

commencement of this Act may apply to the Court for

an order of review in respect of the decision on any

one or more of the following grounds:

(a) that a breach of the rules of natural justice

occurred in connection with the making of the

decision;

(b) that procedures that were required by law to be

observed in connection with the making of the

decision were not observed;

(c) that the person who purported to make the

decision did not have jurisdiction to make the

decision;

(d) that the decision was not authorized by the

enactment in pursuance of which it was

purported to be made;

(e) that the making of the decision was an improper

exercise of the power conferred by the

enactment in pursuance of which it was

purported to be made;

(f) that the decision involved an error of law,

whether or not the error appears on the record

of the decision;

(g) . . .

(h) that there was no evidence or other material to

justify the making of the decision;

(j) that the decision was otherwise contrary to

law."

14. It is unnecessary to set out s.5(2) which lists a number of matters which subsection 5(1)(e) is to be construed as including.

"(4) In this Act:

(a) a reference to a person aggrieved by a decision

includes a reference:

(i) to a person whose interests are adversely

affected by the decision; or

(ii) . . ."

16. Sections 7(1), 9, 10, 11 and 13(1), (2) and (4) of the Commonwealth Aboriginal Heritage Act are in the following terms:

"Application of other laws

7(1) This Act, except Part IIA, is not intended to

exclude or limit the operation of a law of a State or

Territory that is capable of operating concurrently

with this Act.

Emergency declarations in relation to areas

9. (1) Where the Minister:

(a) receives an application made orally or

in writing by or on behalf of an

Aboriginal or a group of Aboriginals

seeking the preservation or protection

of a specified area from injury or

desecration; and

(b) is satisfied:

(i) that the area is a significant Aboriginal area;

and

(ii) that it is under serious and immediate

threat of injury or desecration;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration

under subsection (1) has effect for such period, not

exceeding 30 days, as is specified in the

declaration.

(3) The Minister may, if he is satisfied

that it is necessary to do so, declare that a

declaration made under subsection (1) shall remain in

effect for such further period as is specified in the

declaration made under this subsection, not being a

period extending beyond the expiration of 60 days

after the day on which the declaration under

subsection (1) came into effect.

Other declarations in relation to areas

10. (1) Where the Minister:

(a) receives an application made orally or in

writing by or on behalf of an Aboriginal or a

group of Aboriginals seeking the preservation

or protection of a specified area from injury

or desecration;

(b) is satisfied:

(i) that the area is a significant

Aboriginal area; and

(ii) that it is under threat of injury or

desecration;

(c) has received a report under subsection (4) in

relation to the area from a person nominated

by him and has considered the report and any

representations attached to the report; and

(d) has considered such other matters as he

thinks relevant;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration

under subsection (1) has effect for such period as is

specified in the declaration.

(3) Before a person submits a report to

the Minister for the purposes of paragraph (1)(c), he

shall:

(a) publish, in the Gazette, and in a

local newspaper, if any, circulating

in any region concerned, a notice:

(i) stating the purpose of the application

made under subsection (1) and the

matters required to be dealt with in the

report;

(ii) inviting interested persons to furnish

representations in connection with the

report by a specified date, being not

less than 14 days after the date of

publication of the notice in the

Gazette; and

(iii) specifying an address to which such

representations may be furnished;

and

(b) give due consideration to any

representations so furnished and, when

submitting the report, attach them to

the report.

(4) For the purposes of paragraph (1)(c), a

report in relation to an area shall deal with the

following matters:

(a) the particular significance of the area

to Aboriginals;

(b) the nature and extent of the threat of

injury to, or desecration of, the area;

(c) the extent of the area that should be

protected;

(d) the prohibitions and restrictions to be

made with respect to the area;

(e) the effects the making of a declaration

may have on the proprietary or pecuniary

interests of persons other than the

Aboriginal or Aboriginals referred to in

paragraph (1)(a);

(f) the duration of any declaration;

(g) the extent to which the area is or may

be protected by or under a law of a

State or Territory, and the

effectiveness of any remedies available

under any such law;

(h) such other matters (if any) as are

prescribed.

Contents of declarations under section 9 or 10

11. A declaration under subsection 9(1) or 10(1)

in relation to an area shall:

(a) describe the area with sufficient

particulars to enable the area to be

identified; and

(b) contain provisions for and in relation

to the protection and preservation of

the area from injury or desecration.

Making of declarations

13. (1) In this section:

"declaration" means a declaration under this

Division;

. . .

(2) The Minister shall not make a

declaration in relation to an area, object or objects

located in a State, the Northern Territory or Norfolk

Island unless he has consulted with the appropriate

Minister of that State or Territory as to whether

there is, under a law of that State or Territory,

effective protection of the area, object or objects

from the threat of injury or desecration.

(3) . . .

(4) Any failure to comply with subsection (2)

does not invalidate the making of a declaration."

17. The respondent's contentions can be stated very simply. In respect of each application the respondent says that Court has no jurisdiction to hear the application because the applicants are not presently "persons aggrieved" by either decision since each of the decisions is no longer an operative one. As the applicants are not presently "persons aggrieved", so it is submitted, they are not entitled to have that decision reviewed by the Court.

18. Alternatively, it is submitted by the respondent that, as a matter of discretion, the Court should either dismiss the applications or order that they be stayed permanently because the first declaration continued only in force after 6 March 1994 by reason of the Second Decision and the Second Decision now no longer has any operative effect. In respect of the alternative submission the respondent submitted that the Court should exercise its power pursuant to s.23 of the Federal Court of Australia Act and Order 20 Rule 2 of the Federal Court Rules either to dismiss all of the applications or order that they be permanently stayed.

19. In the application which they filed on 3 March 1994, the State, the Minister for Lands and the State Minister for Aboriginal Affairs allege that they are aggrieved by the respondent's decision constituted by the First Decision and the respondent's decision not to revoke the declaration made on 3 February 1994 because the First Decision:

"(a) puts into issue the rights of Malcolm Douglas under (the

special lease);

(b) puts into issue the validity and effect of (the special

lease);

(c) is in conflict with the decision of the (State Minister

for Aboriginal Affairs) made under section 18 of the

Aboriginal Heritage Act ("the State Aboriginal Heritage

Act") in July 1993 to approve the development of a

crocodile farm on the lease area upon condition that an

initiates track claimed to be of significance to the

Yawuru People be excised from the lease area and

protected by Malcolm Douglas against disturbance caused

by crocodile farming activities."

20. The same applicants, in their application filed on 29 March 1994 state that they are aggrieved by the Second Decision (to extend the period of the original declaration) because that decision continues, for the period of the extension, those matters by reason of which the applicants were aggrieved in relation to the original declaration.

21. The respondent submitted that even if the applicants may have been persons aggrieved at the time of making the respective decisions nevertheless, in respect of the First Decision they ceased to be persons aggrieved because that decision was overtaken by the Second Decision and furthermore because the period limited by the declaration expired. In respect of the second decision, it was put that the applicants ceased to be persons aggrieved because the period referred to in the declaration which resulted from the Second Decision had expired. Reliance was placed on the judgment of Fisher J in Perry v. Director of Public Prosecutions [1985] FCA 182; (1985) 6 FCR 578.

22. In Perry a magistrate had made an order under s.18(6) of the Service and Execution of Process Act 1901 (Cth) that Mrs Perry be returned to Victoria to face a charge of murder. Mrs Perry applied to the Federal Court of Australia for orders of review under the Judicial Review Act and also applied to the Supreme Court of South Australia for review of the magistrate's order under s.19 of the Service and Execution of Process Act. Bollen J of the Supreme Court of South Australia dismissed that application for review, and one of the questions raised in the Federal Court application by way of preliminary argument was whether Mrs Perry was a "person aggrieved". Fisher J held that, in the circumstances of Bollen J's decision, Mrs Perry was no longer a person aggrieved. His Honour observed at p.583:

"She is without doubt aggrieved and her interests are

adversely affected by the fact that she is directed

to return to Victoria. She was aggrieved by the

decision of the magistrate at least up to the time

that Bollen J pronounced, after a rehearing, upon

her application to him. In my opinion, however, she

is at present aggrieved not by the decision which she

seeks to have reviewed under the Judicial Review Act

but by the decision of Bollen J confirming and

varying in part the decision of the magistrate. The

operative decision now is the decision of Bollen J,

which has at least, for practical purposes,

superseded that of the magistrate."

23. Mr Macliver, counsel for the respondent in each of these applications sought to draw an analogy between Bollen J's decision in that case and the making by the respondent of the Second Decision and the decision of 6 April 1994 in these matters.

24. The respondent submitted that even if that submission were not accepted and somehow the Second Decision had the effect of extending the operation of the First Decision over the life of the Second Decision then when the Second Decision ceased to have any operative effect as at midnight on 4 April 1994 the applicants ceased to be persons aggrieved in respect of either decision.

25. Alternatively, if it were held that the applicants were "persons aggrieved" and thus the Court had jurisdiction, it was submitted that the applications should be dismissed or stayed permanently on the grounds of futility. It was said that there would be no useful benefit flowing from a review by the Court of the First Decision because it was the Second Decision which caused the original declaration to be extended and then only until 4 April 1994. Similar arguments were advanced in respect of the Second Decision and reliance was placed on the decisions of this Court in La Roche v. Cormack [1991] FCA 627; (1991) 33 FCR 414 and Beitseen v. Johnson (1989) 29 IR 336.

26. In La Roche, judicial review was sought in respect of a decision appointing two persons to positions of a temporary nature. The terms of appointment expired on 24 December 1991 and the application for review, which was filed on 24 July 1991 came before Olney J on 13 December 1991, eleven days prior to expiry of the period of the temporary appointments.

27. Olney J referred to Beitseen v. Johnson (a decision of the Full Court of this Court) as authority for the principle that this Court does have power (by implication from s.23 of the Federal Court of Australia Act and Order 20 Rule 2 of the Federal Court Rules) not to proceed with an application for judicial review notwithstanding that the statutory pre-conditions for a grant of relief are satisfied. As the two temporary positions would for practical purposes cease to exist after 24 December 1991 and in the absence of any other circumstances justifying the matter proceeding to hearing, it was futile to proceed with the application. Accordingly the proceedings were stayed.

28. Beitseen's case involved an appointment of an assistant secretary to a union for a term which would expire less than two months after the matter was before the Full Court. The Full Court decided not to proceed with the appeal stating (at p.338):

"We have been persuaded to exercise that power (not

to proceed further with the appeal) in this case

primarily because the passage of time has, in the

circumstances, deprived the issues in controversy of

real practical significance. However, the Court has

been influenced as well by an indication that the

costs of at least some parties to this appeal may

fall on the public purse by virtue of Part XII of the

Industrial Relations Act 1988. Any course which

minimizes those costs without doing violence to

genuine and substantial rights of the parties is to

be favoured."

29. By way of emphasising that there is no point in pursuing the applications, Mr Macliver referred to the relief sought in applications WAG 26 and WAG 39 respectively, namely orders quashing the declaration or alternatively an injunction restraining the respondent from taking action to implement the declaration. Similarly the relief sought by Mr and Mrs Douglas was simply that the decisions be quashed and set aside and that was described as being "equally futile".

30. The submissions put on behalf of the State, the Minister for Lands and the State Minister for Aboriginal Affairs rested broadly on two bases. The first was that even if:

. all of the submissions made by the respondent as to practical

utility were accepted; and

. the presently operative decision is the one which was made under

s.10 of the Act; and

. no effective relief of benefit to Mr and Mrs Douglas could be

obtained by review of the first decision or the second decision;

then nevertheless the State was a "person aggrieved". It was said that the sorts of principles which arise in litigation at the suit of a private party do not necessarily apply in an issue arising between two governments in a federation.

31. The second, alternative, submission was that it was unrealistic in a course of decision-making involving four decisions to separate out those decisions and dissect them to say which part of which decision is presently operative.

32. As to the first basis, reference was made to the fact that at the time the Commonwealth Aboriginal Heritage Act came into force there had already been within Western Australia a regime dealing with matters of Aboriginal heritage for twelve years pursuant to the State Aboriginal Heritage Act. It was said that both the Commonwealth Aboriginal Heritage Act and the State Aboriginal Heritage Act dealt broadly with the protection of matters of Aboriginal heritage but with a number of differences of emphasis. The State Aboriginal Heritage Act, so it was put, is a more wide-ranging regime of protection which sets up a specific body dealing with Aboriginal cultural materials, vests protection of Aboriginal sites in various departments and a Minister with particular responsibility, and recognises the role of Aboriginal traditional custodians. Most importantly, so it was submitted, the substantial difference between the two Acts was that by virtue of the State Aboriginal Heritage Act, every Aboriginal site is protected unless the State Minister for Aboriginal Affairs, pursuant to an application made under that Act, dispenses with that protection. That was contrasted with the Commonwealth Aboriginal Heritage Act under which it is said that there was no protection for an area unless the Commonwealth Minister for Aboriginal Affairs makes an emergency declaration under s.9 or another declaration under s.10. Further, reference was made to s.7 of the Commonwealth Aboriginal Heritage Act (set out above) which provides that the Act is not intended to exclude or limit the operation of a law of a State capable of operating concurrently with it, as indicating that the Commonwealth did not intend to cover the field.

33. It was said that a failure to comply with the consultation procedures provided for in the Commonwealth Aboriginal Heritage Act formed a very large part of the State's complaint in relation to these decisions.

34. Furthermore, the State sought revocation of the First Decision on the basis that the State Aboriginal Heritage Act made effective provision for the protection of the Land - see s.13(5) of the Commonwealth Aboriginal Heritage Act, and judicial review was sought in respect of the respondent's decision not to revoke the first declaration made by him. Ms Wheeler, counsel for the State, the Minister for Lands and the State Minister for Aboriginal Affairs, referred to the fact that prior to the making of the First Decision, the Aboriginal Cultural Materials Committee created by the State Aboriginal Heritage Act had considered and reported on the significance of the Land and the State Minister for Aboriginal Affairs had given conditional consent to the development of the Land pursuant to that Act. There had also been proceedings in the Supreme Court of Western Australia directly raising the issue of whether development on the Land should be permitted to proceed. All this was the subject of affidavit evidence filed in support of the four applications.

35. It was said that the interest of these applicants which it is sought to protect in these proceedings is "the preservation of an appropriate area of operation for the laws of the State in the protection of Aboriginal heritage, and in ensuring that due weight is given, by the respondent, to the State's responsibilities in this area, and that due respect is accorded to the decisions of its officers, its Ministers, and its Courts." Ms Wheeler described this interest as not one "which involves necessarily any direct loss or disadvantage to the State in a practical or a financial sense. The interest which it has sought to protect is the preservation of the area of operation of the State law which is recognised by the Commonwealth (Aboriginal Heritage) Act." An analogy was drawn with constitutional litigation and the interest of a State in ensuring that the Commonwealth does not exceed its powers in enacting legislation which extends to the State. Reliance was placed, by analogy, to the decision of the Full Court of the High Court in Victoria v. The Commonwealth (the AAP Case) [1975] HCA 52; (1975) 134 CLR 338 in which the majority of the High Court held that a State of the Commonwealth has standing to institute an action to challenge the validity of an appropriation made by the Commonwealth Parliament. In that case the Commonwealth had argued that the Act in question in those proceedings (the Appropriation Act (No. 1) 1974-1975 (Cth)) imposed no duties upon and created no rights in the Citizens of the State of Victoria and did not conflict with any legislation of that State or affect the exercise by the State of any of its powers. Ms Wheeler made particular reference to passages in the judgments of Gibbs J at p.381:

"In my opinion it is involved in the very nature of

the Constitution that either the Commonwealth or a

State should have standing to institute legal

proceedings when the other has exceeded its

constitutional authority."

"The real interest of the States, so it seems to me,

is that they are constituent elements in the

federation and that the federation is one in which

there is a division of powers and a consequential

allocation of responsibilities between the

Commonwealth and the States. As such they have an

interest in the observance of the Constitution and in

ensuring that the Commonwealth keeps within the

bounds assigned to it by the Constitution. Ultra

vires acts on the part of the Commonwealth, that is,

acts exceeding constitutional power, whether

legislative or executive, are in truth intrusions

into the area of responsibility left to the States by

the Constitution and are in this sense prejudicial to

the interests of the States under the Constitution

and as constituent elements of the federation."

See also Barwick CJ at p.336 and Stephen J at 387-9. It was submitted that what is at issue, so far as the State is concerned and what makes the State a "person aggrieved" is the lack of recognition of that State responsibility and the invasion of that field which is expressly preserved to the State by the Commonwealth Aboriginal Heritage Act. It followed from that, so it was said, that it would not matter if the decision had expired and had not been extended or no permanent declaration had been made. The State had an interest in a "continuity of dealing ... a maintenance of precedent in this area ... a maintenance of the principles of the legislation". There were going to be future dealings which must occur under the Commonwealth Aboriginal Heritage Act which meant that no ministerial decision of this kind can be treated as isolated and at an end once it has expired. Taking the respondent's proposition to its extreme, it was said that for example, a Commonwealth Minister might adopt an improper policy of always making emergency declarations in relation to the State of Western Australia because he thought the Western Australian Minister was not to be trusted. It would be wrong that those decisions could not be reviewed simply because they were emergency decisions and expired before the State could get to this Court to have the matter fully argued and determined.

36. It was conceded that apart from the fact that the decisions effectively nullify the decision of the Minister of Lands to grant a lease to Mr and Mrs Douglas, there was nothing in a practical sense for the State in its application for review, but it was submitted that it was always the principle referred to above which makes the State a "person aggrieved". The principle continued notwithstanding that the decision is no longer operative. It was put that it would not matter one way or the other whether the "invasion" was temporary or was still continuing.

37. Alternatively it was submitted that in each of the decisions pursuant to s.9 and the decision pursuant to s.10, a central element was the requirement that the Commonwealth Minister for Aboriginal Affairs be satisfied that an area is a significant Aboriginal area and that there is a threat of injury or desecration and that at each stage a decision was made without affording the applicants natural justice, without due regard to the effectiveness of the laws of the State and without proper regard to all of the available material. Each decision, so it was argued, was cumulative upon, and infected by the errors of, earlier decisions. The applicants, it was said, are "aggrieved" by the whole course of decision-making which since 3 February 1994 had rendered futile the granting of the special lease by the Minister for Lands to Mr and Mrs Douglas. The situation was different to that in Perry. Here the decision not to revoke the first declaration came just before the declaration was due to expire. The decision to extend came at, immediately upon or immediately prior to the expiry of the first declaration and then again when the period of the second declaration was due to expire, there was a decision to make a permanent declaration. The First Decision was still operative, so it was submitted, in the sense that the materials and considerations which were before the respondent and the errors of principle which were made by the respondent continued on to infect his later decisions.

38. As a final alternative submission on behalf of the State it was suggested that if I were not satisfied as to the inter-relationship in practical terms of all of the decisions (including the decision to make the permanent declaration) then it might be appropriate to hold that it was not possible to say that the State was not aggrieved until the decision to make a permanent declaration was reviewed and all the facts were before the Court. Ms Wheeler referred to Robinson v. Western Australia (1977) 138 CLR 283 at pp 302-303 where Gibbs J stated:

"The question whether a plaintiff has a sufficient

interest to challenge the validity of legislation - an

interest greater than that of any ordinary member of

the public - may sometimes depend upon the resolution

of controverted questions of law or fact. It may be

clear enough that if the plaintiff has the right or

interest which he claims, and if the legislation has

the effect which he ascribes to it, the legislation,

if valid, will so affect the plaintiff as to give him

standing to sue, but it may be disputed that he has

such a right or interest, or that the legislation has

such an effect. In such a case it will be a matter

for decision whether the court proceeds to determine

the disputed questions whose only immediate relevance

is to establish whether the plaintiff has standing to

sue, or whether it will be satisfied to accord

standing to the plaintiff on the ground that he

asserts, not implausibly, that his interests are

threatened by the operation of the legislation in

question. The court has a discretion: it is not bound

to take one course rather than the other. If the

plaintiff's claim to have a locus standi is merely

colourable, and can easily be exploded, the court will

no doubt proceed immediately to decide the question of

standing and, having decided it against the plaintiff,

will dismiss the action. But if the investigation of

the claim requires the consideration of weighty and

complex questions which may never fall for decision if

the issue of validity is decided against the

plaintiff, it may be more convenient to proceed

immediately to determine the validity of the

challenged statute."

39. Mr Stevenson, counsel for Mr and Mrs Douglas submitted that there was nothing in the Judicial Review Act which suggests that a decision which is open to review in accordance with the provisions of that Act at a particular point of time suddenly becomes no longer open to review. It was not correct, so it was submitted, to suggest that any decision made by the Minister under s.9(1) of the Commonwealth Aboriginal Heritage Act was somehow subsumed or beyond review simply because the Minister at a later time made a decision under s.9(3) of the Act to extend his original decision. The interests of Mr and Mrs Douglas were adversely affected during the period in which the First Decision operated and the further period in which the Second Decision operated and were thus persons aggrieved. Alternatively Mr Stevenson adopted the submission put forward by the other applicants that there was a building upon the First Decision when the subsequent decisions were made and thus those subsequent decisions were infected by the earlier decisions. It was submitted that Mr and Mrs Douglas might have a claim for compensation in respect of the restraint imposed upon them during each of the two 30-day period when they were prevented from developing their crocodile farm.

40. In essence, the respondent is asking the Court to dismiss summarily these four sets of proceedings on the basis that the applicants are not "persons aggrieved" and thus the applications cannot succeed. I deal below with the respondent's alternative argument that even if the applicants are persons aggrieved then because the period covered by the two decisions has expired, it would be futile to proceed to a hearing of the applications, but there too the respondent, in effect, seeks summary judgment against the applicants by way of dismissal or stay of the applications.

41. The High Court of Australia has fairly recently re-endorsed the principles laid down in General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at p 129 and Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at p 91 in the case of Webster v. Lampard [1993] HCA 57; (1993) 116 ALR 545 at p 548.

42. Those principles are that the power to order summary judgment must be exercised with "exceptional caution" and "should never be exercised unless it is clear that there is no real question to be tried". In Webster as part of their reference to those decisions Mason CJ, Deane and Dawson JJ at p.548 gave the following caveat:

"Nowhere is that need for exceptional caution more

important than in a case where the ultimate outcome

turns upon the resolution of some disputed issue or

issues of fact. In such a case, it is essential that

'great care ... be exercised to ensure that under the

guise of achieving expeditious finality a plaintiff is

not improperly deprived of his (or her) opportunity

for the trial of his (or her) case by the appointed

tribunal'."

43. Section 3(4) of the Judicial Review Act, in its definition of the expression "person aggrieved" (who I shall assume, for the present, is the same as "A person who is aggrieved ..." as referred to in s.5) uses the word "includes" when referring to a person whose interests are adversely affected by the decision. By doing so it is, in my opinion, intending to enlarge the ordinary meaning of the word "person aggrieved" rather than providing an exhaustive definition: Sherritt Gordon Mines Ltd v. Federal Commissioner of Taxation [1977] VicRp 42; (1976) 10 ALR 441 at p 455.

44. In a similar fashion to the definitions section in that case, the definitions in s.3 of the Judicial Review Act have consistently distinguished (by using the word "means") those definitions which are conclusive and exhaustive from those definitions which are inclusive.

45. In Tooheys Ltd v. Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at p 79 Ellicott J observed:

"The question whether an applicant is a person

aggrieved is one of mixed law and fact and in many

cases would best be determined at a final hearing when

all the facts are before the court and the court has

the benefit of a full argument on the matter."

The question here is whether this is so in these matters. See also Gibbs CJ in Davis v. Commonwealth [1986] HCA 66; (1986) 68 ALR 18 at p 23-24:

"As at present advised, although I agree that the

plaintiffs, as Aboriginals, are members of a class

which may have a special interest in challenging the

validity of the Act, I find difficulty in accepting

that the interest is other than emotional or

intellectual. Having regard to the principles which

govern applications of this kind it is not necessary

for me to express any concluded view whether the

plaintiffs have an interest sufficient to give them

standing; it is enough to say that it seems to me that

the plaintiffs' argument cannot be dismissed as

frivolous or hopeless - opinions may differ upon its

acceptability and it is not plain and beyond debate

that it must fail."

46. Gummow J in Australian Institute of Marine and Power Engineers v. Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at pp 130-132 reviewed many of the authorities on the meaning of the expression "person aggrieved" and concluded by adopting the observations of Ellicott J in Tooheys case to the effect that the meaning of "a person aggrieved" is not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.

47. In Ogle v. Strickland (1987) 13 FCR 306 at p 314 the Full Court of this Court referred to the importance of not giving the expression "a person who is aggrieved" a narrow meaning. See also another Full Court decision W H Broadbridge v. Stammers (1987) 16 FCR 296.

48. As a result of the decisions sought to be reviewed in these applications the Minister for Lands as lessor and Mr and Mrs Douglas as lessees have been substantially denied rights flowing from the special lease for two consecutive periods of thirty days each. Mr and Mrs Douglas have, for those periods, lost the right to carry out development works and, on the assumption that those works would have proceeded during that period, the Minister for Lands as lessor has had postponed by those periods any benefits which he would have derived from the expeditious development of the Land. Similarly, in my view it may well emerge at the hearing of these applications that the State has sufficient interest to have been aggrieved by the two decisions. First there is its interest in the expeditious development of the Land and, at this stage, I do not think that the other arguments put forward on behalf of the State and the State Minister for Aboriginal Heritage can be dismissed as not raising any real question to be tried.

49. In my view, Perry's case can be distinguished on the basis that the magistrate's decision had ceased to be operative once Bollen J gave his decision and that any prejudice to Mrs Perry by being required to return to Victoria resulted from the latter decision and not the former. In this case whatever prejudice the applicants sustained during the two 30-day periods still remains.

50. In my view this is not a case where it is sufficiently clear that the applications should not be permitted to go to trial in the ordinary way because it is apparent that they must fail on the "person aggrieved" point.

51. I now turn to the question of discretion. Would it be, as the respondent argued, futile for these applications to proceed to trial?

52. In my view it is not sufficiently clear at this stage that it would be futile.

53. If the applicants are successful then they may be entitled to any one or more of the range of orders set out in s.16(1) of the Judicial Review Act. These include orders quashing or setting aside the decisions but in particular they also include declaratory relief. For example, there could be declarations as to the lawfulness of the restraints in respect of construction works during the two periods. This is analogous to the declaration relating to the unlawfulness of the period of forced imprisonment referred to in Park Oh Ho v. Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at pp 644-645.

54. If the State's arguments in respect of the matters of principle, described above, are successful a declaration of right might be particularly useful.

55. Finally, it is necessary to consider the respondent's submission that public funds might be uselessly expended in this exercise. In my view the case, being one of first impression, is sufficiently important for it not to be obvious at this stage that public funds are likely to be wasted. In those circumstances, it is for the responsible parties concerned to decide whether they wish to continue with their approach to the Court. Furthermore, since these motions were heard, applications have been filed seeking review of the respondent's decision made on 6 April 1994. I propose to order that all of these applications be heard together which should have the result of a substantial lessening of any burden on the public purse by way of wasted legal costs.

56. For the above reasons I propose to dismiss the objections as to competency and the motions.

Torres Strait Islander Heritage Protection Act 1984

Heritage Protection Act 1984

Service and Execution of Process Act 1901(Cth)

Decisions (Judicial Review) Act 1977

Malcolm Mcdonald Douglas and Valerie Anne Douglas v the Hon Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs Western Australia, Minister of Lands of Western Australia and Minister of Aboriginal Affairs [1994] FCA 1066

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Malcolm Mcdonald Douglas and Valerie Anne Douglas v the Hon Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs Western Australia, Minister of Lands of Western Australia and Minister of Aboriginal Affairs [1994] FCA 1066 (5 May 1994)

Parties

Legislation Cited (6)

Cases Cited (16)