ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND
CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES –
GENERALLY – where the applicant was a self-determined entity which claimed
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS ANDCONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATIONAPPLIES –GENERALLY – where the applicant was a self-determined entity which claimedto have cultural authority to giveeffect to their connection with, andobligations to, the Doongmabulla Springs and associated groundwaters in CentralQueensland –where the respondent Department was the administeringauthority under the Environmental Protection Act 1994 (Qld) and vestedwith a range of powers under that statute – where the applicant requestedthe respondent to exercise one ormore of its powers under the EnvironmentalProtection Act 1994 (Qld) to protect the Doongmabulla Springs and associatedgroundwaters from actual or potential environmental harm from mining activitiesbeing conducted by a third party – where the Department for variousreasons declined the applicant’s request –where the applicantapplied to the court for a statutory order of review and other relief under ss
20 and 43(1)(a) the Judicial Review Act 1991 (Qld) – where the
applicant also sought relief under ss 9 and 10 of the Civil Proceedings Act
2011 (Qld) – where the Department made application pursuant to s 48 of
the Judicial Review Act 1991 (Qld) to stay or dismiss the principal
application as it concerned the review and the relief claimed under the
Judicial Review Act 1991 (Qld) – where the Department also made
application pursuant to r 16(e) of the Uniform Civil Procedure Rules
1999 (Qld) to set aside the principal application as it concerned the relief
claimed under the Civil Proceedings Act 2011 (Qld) – whether the
decision made by the Department to decline the applicant’s request was a
decision to which the Judicial Review Act 1991 (Qld) applies –
whether the decision made by the Department to decline the applicant’s
request conferred, altered or
otherwise affected any right or obligation on the
part of the applicant – whether the principal application should be
dismissed
pursuant to s 48 of the Judicial Review Act 1991 (Qld) to the
extent it concerns any review or relief claimed under that statute –
whether the principal application should
be set aside pursuant to r 16(e) of the
Uniform Civil Procedure Rules 1999 (Qld) to the extent it concerns relief
claimed under the Civil Proceedings Act 2011 (Qld)
30(1), 32, 43(1), 48, 48(1), Part 3, Part 5, Schedule 2
Uniform Civil
Procedure Rules 1999 (Qld), r 16
Agriwealth Capital Ltd v
Commissioner of Taxation (2019) 163 ALD 541
Ainsworth v Criminal
Justice Commission [1992] HCA 10
(1992) 175 CLR 564
Australian Broadcasting Tribunal
v Bond (1990) 170 CLR 321
Bateman’s Bay Local Aboriginal Land
Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR
247
Chibanda v Chief Executive, Queensland Health & Anor [2020]
QCA 144
Eastman v Australian Capital Territory [2008] ACTCA 7
(2008) 2 ACTLR
180
Egan v Willis [1998] HCA 71
(1998) 195 CLR 424
Gardner v Dairy Industry
Authority (NSW) (1977) 52 ALJR 180
General Steel Industries Inc v
Commissioner for Railways (NSW) [1964] HCA 69
(1964) 112 CLR 125
Griffith University
v Tang [2005] HCA 7
(2005) 221 CLR 99
Guss v Deputy Commissioner of Taxation
[2006] FCAFC 88
Holzinger v Attorney-General [2020] QCA 165
(2020) 5 QR
314
Johnston & Ors v Carroll [2024] QSC 2
Leadpoint Pty Ltd
v Legal Services Commissioner [2015] QSC 254
Lewis v Minister for
Police and Corrective Services and Minister for Fire and Emergency Services
& Ors [2022] QSC 70
Minister for Immigration and Border Protection
& Anor v SZSSJ & Ors (2016) 259 CLR 180
Murphy v Legal
Services Commissioner [2016] QSC 174
Onus v Alcoa of Australia Ltd
[1981] HCA 50
(1981) 149 CLR 27
Plaintiff M61/2010E v Commonwealth of Australia &
Ors [2010] HCA 41
(2010) 243 CLR 319
Probuild Constructions (Aust) Pty Ltd v Shade
Systems Pty Ltd (2019) 264 CLR 1
Project Blue Sky Inc v Australian
Broadcasting Authority [1998] HCA 35
(1998) 194 CLR 355
Right to Life Association
(NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060
(1995) 56 FCR
50
Sica v Attorney-General for the State of Queensland (2021) 9 QR
543
Smethurst v Commissioner of Police [2020] HCA 14
(2020) 272 CLR 177
Smith
v Fonterra Co-Operative Group Ltd & Ors [2024] NZSC 5
Trask
Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2018] QSC 170
(2019) 2
Qd R 82
Judgment (111 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - GENERALLY - where the applicant was a self-determined entity which claimed to have cultural authority to give effect to their connection with, and obligations to, the Doongmabulla Springs and associated groundwaters in Central Queensland - where the respondent Department was the administering authority under the Environmental Protection Act 1994 (Qld) and vested with a range of powers under that statute - where the applicant requested the respondent to exercise one or more of its powers under the Environmental Protection Act 1994 (Qld) to protect the Doongmabulla Springs and associated groundwaters from actual or potential environmental harm from mining activities being conducted by a third party - where the Department for various reasons declined the applicant's request - where the applicant applied to the court for a statutory order of review and other relief under ss 20 and 43(1)(a) the Judicial Review Act 1991 (Qld) - where the applicant also sought relief under ss 9 and 10 of the Civil Proceedings Act 2011 (Qld) - where the Department made application pursuant to s 48 of the Judicial Review Act 1991 (Qld) to stay or dismiss the principal application as it concerned the review and the relief claimed under the Judicial Review Act 1991 (Qld) - where the Department also made application pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the principal application as it concerned the relief claimed under the Civil Proceedings Act 2011 (Qld) - whether the decision made by the Department to decline the applicant's request was a decision to which the Judicial Review Act 1991 (Qld) applies - whether the decision made by the Department to decline the applicant's request conferred, altered or otherwise affected any right or obligation on the part of the applicant - whether the principal application should be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) to the extent it concerns any review or relief claimed under that statute - whether the principal application should be set aside pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999 (Qld) to the extent it concerns relief claimed under the Civil Proceedings Act 2011 (Qld)
E Nekvapil SC, with K McAuliffe-Lake and C Viney, for the applicant
[34]
C E Christensen, Crown Solicitor, for the respondent
[35]
[1] On 16 February 2024, the applicant, Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd, filed an application for a statutory order of review and prerogative relief pursuant to ss 20 and 43(1)(a) of the Judicial Review Act 1991 (Qld) (JR Act) as well as orders pursuant to ss 9 and 10 of the Civil Proceedings Act 2011 (Qld) (CP Act). I shall refer to that originating process in these reasons as the principal application.
[2] By the principal application, the applicant seeks to call into question a decision which it maintains was made by the respondent Department on 22 December 2023 (and reiterated on 19 January 2024), to not exercise powers available to it under the Environmental Protection Act 1994 (Qld) (EP Act) to protect Doongmabulla Springs (Springs) and associated groundwaters from alleged impacts (or potential impacts) from open‑cut mining activities at the Carmichael Coal Mine in Central Queensland. Declaratory and injunctive relief concerning essentially the same subject matter is also sought pursuant to the CP Act.
[3] Subsequently, the Department brought an interlocutory application to stay or dismiss the principal application pursuant to s 48 of the JR Act and, to the extent the applicant seeks relief outside the JR Act, an order was sought to set the process aside pursuant to r 16(e) of the (Qld) (). It is this interlocutory application about which these reasons are concerned.
[36]
[4] On 23 November 2023, the solicitors for the applicant as well as Mr Adrian Burragubba forwarded a letter to the Minister then responsible for the Department. Its purpose was stated to be to "request a decision by the [Department] to urgently exercise available statutory powers under the EP Act to prevent any further open-cut mining activity [at the Springs], 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". The letter explained that Mr Burragubba is "a First Nation leader and direct descendant of the Wangan and Jagalingou People and carries authority under the laws and customs of his people". The applicant was described as a "self‑determined Wangan and Jagalingou Group with cultural authority to give effect to their connection with, and obligations to, the ... Springs". It was claimed that the Springs are located on Jagalingou Country and are "sacred to their people and central to their cultural beliefs and practices". Reference was also made to the holding by Aboriginal and Torres Strait Islander peoples of the distinct cultural rights recognised by s 28(1) of the Human Rights Act 2019 (Qld) (HR Act) and the prohibitions contained in paragraphs (a), (d) and (e) of 28(2) were emphasised.[1]
[5] The statutory powers which the applicant and Mr Burragubba, through their solicitors, called on the Department to exercise were said to include "those conferred on the [Department] by s 358(d)(iii) or s 505(1)(b)" of the EP Act. In that regard, it is important to an understanding of the issues engaged by this application to appreciate that, although the focus of much of the argument at the hearing was on the powers conferred by ss 358 and 505 of the EP Act, neither the request made by the 23 November 2023 letter nor the principal application was so limited. At the time of the request at least, the Department was vested with arrange of other powers under the EP Act.[2] Indeed, during the course of submissions, senior counsel for the applicant agreed that the letter should be construed broadly, that is to say, as a "request to the Department to do something". It is useful, though, to make some brief observations about ss 358 and 505 of the EP Act.
[37]
"[The Department] must exercise its powers and perform its functions in a way that best achieves the object of the EP Act: s 5. The object of the EP Act is to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development): s 3.
[38]
The Custodians ask that you exercise appropriate statutory powers to conform with the obligation in s 5 of the EP Act."
[39]
[10] The letter then descended into considerable detail regarding what were alleged to be the respects in which various conditions of the EA had, or were likely to have, been contravened by the miner. To the extent there was a "scientific uncertainty" about any of those matters, the applicant asserted this could not be used as "a reason for postponing urgent measures to protect the Springs".
[11] On 28 November 2023, the Minister's chief of staff acknowledged receipt of the 22 November 2023 letter and advised it had been forwarded to the Department for consideration.
[12] On 22 December 2023, the Department responded by letter which, relevantly, included the following:
[40]
"Your letter requests that the Department ... exercise statutory power to prevent further open cut mining activity at the Carmichael Coal Mine until it can be satisfied with sufficient scientific certainty that there is not, and is not a threat of, environmental harm to the [Springs] from that activity.
[41]
I have considered the matters in your letter, and sought advice, particularly in regard to the Human Rights Act 2019 ... about the matters you have raised.
[42]
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.
[43]
However, as I understand matters, your clients do not have property rights (recognised by Australian law) to occupy the land in the manner they do. Mr Burragubba has, I understand, been ordered to vacate land in the vicinity of the mine, by the Supreme Court of Queensland.
[44]
I am also aware of the Federal Court's decision in the Clermont-Belyando area native title claim.
[45]
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 objections hearing in the Land Court with the result being a closely conditioned arrangement for the conduct of the mining activities.
[46]
Given the above, to the extent that any rights have been limited by the grant of the [EA] and associated mining leases and the operation of the mine (including some limited impacts to the [Springs]), the limitation is reasonable and justified.
It follows that I cannot recommend that [the miner] 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.
[49]
You are aware that the [Department] has issued an EPO to [the miner] to require a second groundwater model review be completed and a report submitted by 30 May 2024.
[50]
The EPO was issued after the [Department] received [the miner's] groundwater model review report earlier this year and considered the modelling presented in that report. Contrary to the assumption in your letter, the [Department] has not taken the view that the extent of harm from open cut mining activities remains unknown. That modelling did not demonstrate actual exceedance of the authorised impacts to the [Springs] from the planned open cut mining.
[51]
To ensure that the [Department's] review of the groundwater model report was based on best available science, the [Department] sought independent advice from CSIRO and Geoscience Australia. Based on the review, the [Department] made the decision to not approve [the miner's] groundwater model report.
[52]
[The miner] has appealed this EPO to the Planning and Environment Court and therefore I cannot comment further on this matter.
[53]
Your letter also states that the source aquifer is unknown. This is incorrect. As was made clear by Minister Enoch at the time, the [Department] approved the Groundwater Dependent Ecosystem Management Plan (GDEMP) in June 2019 and was satisfied that the GDEMP sufficiently establishes the main source aquifer of the springs to be the Clematis Sandstone.
[54]
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.
[55]
Your letter requests a response from the [Department] about next steps. I note that your correspondence is marked confidential and legally privileged. I request your permission to provide your letter and the two attached experts reports to [the miner] so that it can respond to your allegations.
[56]
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." [Emphasis in original]
[57]
[13] On the same day, the solicitors for the applicant and Mr Burragubba forwarded a letter to the Department in which they requested a statement of reasons under s 32 of the JR Act for what was described as "your failure to make a decision on or by 21 December 2023 to urgently exercise available statutory powers under the ... EP Act to prevent any further open-cut mining activity by [the miner] until it can be satisfied with sufficient scientific certainty that there is not, and there is no threat of, environmental harm to the Springs from that activity under s 358(d)(iii) or s 505(1)(b) of the EP Act". The solicitors then set out an extensive argument why the applicant and Mr Burragubba were "persons aggrieved by the decision" made by the Department.
[14] On 19 January 2024, the Department replied, relevantly, in the following terms:
[58]
Your letter requests a statement of reasons under section 32 of the Judicial Review Act 1991 (Qld) ... regarding the [Department's] exercise of statutory powers to prevent any further open cut mining activity by [the miner] at the Carmichael Coal Mine.
[59]
Your letter requests a statement of reasons for a failure to make a decision under s358 or s505 of the Environmental Protection Act 1994 (Qld) ... to prevent open-cut mining until it can be satisfied with sufficient scientific certainty that there is not, and is not a threat of, environmental harm to the [Springs] from that activity.
[60]
I disagree with your characterisation that I failed to make a decision, as outlined in my letter dated 22 December 2023, at this time, I have decided not to recommend commencing proceedings under s505 of the EP Act. The letter also outlines the steps taken with respect to the current environmental protection order issued to [the miner] under s358 of the EP Act.
[61]
Decisions in relation to the commencement of civil proceedings, or the issue statutory notices that may result in the bringing of proceedings, are ones for which reasons need not be given, pursuant to Schedule 2 of the JR Act. The same applies to decisions in relation to the administration of criminal justice.
[62]
Given the above, it would not be appropriate for me to comment any further on those decisions. 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." [Emphasis in original]
[63]
[15] On 16 February 2024, the applicant filed the principal application. As earlier mentioned, under it, the applicant seeks a statutory order of review and other relief pursuant to ss 20 and 43(1)(a) of the JR Act, as well as orders pursuant to ss 9 and 10 of the CP Act. So far as the principal application concerns the JR Act, its purpose was stated to be to review the decision made by the Department "to not exercise powers available under the EP 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 relevant mining leases.
[16] One of the reasons set out in the principal application for why the applicant is aggrieved by this decision is that it "adversely affects the interests" of "a self‑determined Wangan and Jagalingou group ... with authority, connection and obligations under culture, laws and customs, in respect of the Springs" and which "holds 'distinct cultural rights' within the meaning of s 28(1) of the HR Act ... and has the 'right' referred to by that term in s 28(2) of the HR Act, including in respect of the Springs". The applicant, it is claimed, "is and represents" this group.
[17] The following orders and other relief are sought in the principal application:
[64]
"(1) An order under s 30(1)(a) or s 43(1)(a) (in the nature of certiorari) of the JR Act that the [decision] be set aside.
[65]
(2) An order under s 30(1)(b) or s 43(1)(a) (in the nature of mandamus) of the JR Act that the [Department] 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.
[66]
(3) A declaration under s 30(1)(c) of the JR Act, or s 10 of the [CP Act] that the [decision] was unlawful.
[67]
(4) An injunction under s 43(1)(b) of the JR Act, or [s 9] of the CP Act, to compel the [Department] to make a new decision on the matter to which the [decision] relates, in a manner that is lawful.
[68]
(5) An order that the [Department] pay the Applicant's costs of and incidental to the application.
[69]
(6) Such further or other order as the Court considers appropriate to make."
[70]
[18] Subsequently, the Department filed the subject application to stay or dismiss the principal application pursuant to s 48 of the JR Act and, to the extent necessary, to set it aside pursuant to r 16 of the UCPR.
[19] The main contention advanced by the Department to justify such a course is that the decision relied on by the applicant is not a decision that confers, alters or otherwise affects any legal right or obligation of the applicant and, for this reason, is not a decision that is reviewable under Part 3 of the JR Act or capable of attracting relief under Part 5. In support of that contention, the applicant advanced two subsidiary arguments: first, that the decision "does not comprise a final and operative or substantive determination" so as to constitute a decision amenable to review; and second, insofar as the decision "concerns a decision not to commence a proceeding under s 505 of the EP Act, [it] would concern the courts with decisions as to who is prosecuted and for what".
[20] If the main contention at least is accepted, then the decision will not be amenable to review or other relief under ss 20 or 43(1)(a) of the JR Act. Put another way, the decision would not be one to which the JR Act applies. This would, in turn, mean "it would be inappropriate" for the "proceedings in relation to the application or claim to be continued" within the meaning of s 48(1)(a) and, as such, the court may stay or dismiss the principal application, at least so far as it is claimed to concern the JR Act.
[21] In Sica v Attorney-General for the State of Queensland,[5] I said this about the power conferred by s 48(1)(a) of the JR Act:
[71]
"Section 48(1)(a) of the Judicial Review Act confers a general power on the court to stay or dismiss an application if the court considers it inappropriate to permit a proceeding to continue or to grant the application. The power has been described as a broad one, and may be exercised by the court on its own motion. It has been called in aid to, amongst other things, end a proceeding which concerned a decision that was not subject to the Judicial Review Act and where the court determined that the application was 'doomed to fail'. The provision is not to be read down by reference to paragraphs (b), (c) and (d) of s 48(1). Instead, it should fully operate according to its terms, subject only to the constraint that the inappropriateness must relate either to the continuation of the proceeding or to the granting of the application. The power is not confined to cases where error is demonstrated; s 48(1)(a) can be pressed into service even if error on the part of the decision-maker is shown, for example, where there is good reason for otherwise not allowing the proceeding to continue or for not granting the relief sought. Plainly, a clear case will be required before the court may conclude that an application should be stayed or summarily dismissed, but this is one such case."[6] [Citations omitted]
[72]
[22] I proceed accordingly. I also remain of the same view as I expressed in that case that, because this is in essence an application to summarily dismiss an originating process, I should not only take the material filed in support of the application at its highest, I should adopt the most favourable view of the applicable law when considering that material.[7]
[23] It is useful to commence with a consideration whether the decision is amenable to review under Part 3 of the JR Act. By s 20 of that statute, 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". In that regard, a decision to which the JR Act applies is defined to mean "a decision of an administrative character made, or proposed to be made, or required to be made, under an enactment".[8]
[24] In Griffith University v Tang,[9] Gummow, Callinan and Heydon JJ observed:
[75]
"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?
[76]
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?
[77]
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."[10] [Citations omitted, emphasis added]
[78]
[25] For the Department, it was contended that the decision here did not confer, alter or otherwise affect any legal right or obligation of the applicant. Regardless of whether the Department did or did not decide to exercise one or more powers under the EP Act, the applicant's rights and obligations remained unaffected. The applicant may or may not have an interest in the exercise of the powers, but that does not mean a decision by the executive not to exercise any of the powers conferred, altered or affected the applicant's rights or obligations. As counsel for the Department put it, they remained "exactly the same afterwards".
[26] For the applicant, lengthy written submissions were devoted to careful analysis of various provisions of the EP Act and the HR Act, as well as the interaction between each, with particular emphasis on the prohibitions contained in s 28(2) of the HR Act, a provision to which reference has already been made (at [4]). It was submitted that the applicant's rights under s 28 of the HR Act were protected by the EP Act. It was then argued that the decision under consideration "substantially limits the [applicant's] right to not be denied their rights under traditional law and custom, including to enjoy, protect and maintain cultural heritage, strengthen spiritual connection to Country, and to protect Country". It was further contended that the "s 28 rights and [obligations] to care for and protect Country, and the cultural expression bound up with the Springs, are profoundly affected by the inaction" of the Department. Reliance was also placed on s 58(1) of the HR Act which provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights (s 58(1)(a)) or in making a decision, to fail to give proper consideration to a human right relevant to the decision (s 58(1)(b)). It was these rights, the applicant argued, which were affected by the decision under consideration.
[27] I cannot accept the applicant's arguments in this regard. Prior to any request being made of the Minister, the applicant did not have any legal right to the exercise of any powers under the EP 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 HR Act, the non-exercise of powers by the Department under the EP Act could have no effect on those rights. To the point, the so-called "inaction" on the part of the Department of which the applicant complains could not limit the applicant's rights under s 28 of the HR Act, whether substantially or at all. As such, the decision "did not create any liability for the [applicant]; nor did it affect any existing right of the [applicant] or create any right or obligation in the [applicant] going forward". To be clear, I do not accept the applicant's contrary arguments based in part on what was said in , a case which was of course decided before . Nor was I persuaded that the principle laid down in should be confined in the way suggested in .
[79]
"A decision ... not to prosecute does not change the position of any party. It does not confer any immunity or right upon the person who is subject to a complaint ... It takes away no right of the complainant to make a complaint. It does not render the respondent functus officio. The respondent can review the decision or make it again."[19]
[80]
[31] The conclusion I have reached that the decision of the Department in this case was not a decision to which the JR Act applies also disposes of the question whether it is capable of attracting relief under Part 5 and, in particular, relief in the form of prerogative orders in the nature of certiorari and mandamus under s 43(1)(a) of the JR Act; it cannot. In any event, 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".[20] A decision by the Department not to exercise powers available to it under the EP Act cannot have had any "discernible or apparent legal effect" on the applicant's rights under s 28 of the HR Act, for the reasons already expressed. As for mandamus, such an order will only be made in the presence of a duty to perform a function or exercise a power.[21] Although it was submitted in writing on behalf of the applicant that the Department 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 Department owed the applicant a duty to consider the exercise of what are clearly expressed to be discretionary powers under the EP Act, and even more surprising if an order for mandamus could be called in aid to compel it to do so.[22] Equally, to the extent the applicant is to be taken as having sought an injunction under s 43(1)(b) of the JR Act or, for that matter, under s 9 of the CP Act, such an order is in substance an order for mandamus and any claim to it will face the same fundamental obstacles. Also, in the case of the power conferred by s 9 of the CP Act, the jurisdiction to grant an injunction is limited to injunctions to restrain a threatened or apprehended breach of contract or other wrongful conduct; it is not available to compel the performance of discretionary statutory powers.
[32] In the result, I am satisfied that it would be inappropriate for the principal application to be continued within the meaning of s 48(1)(a) of the JR Act and that, so far as it is claimed to concern the JR Act, it should be dismissed. For reasons I shall come to next, the claim for declaratory relief under the CP Act should be allowed to proceed, but I am not persuaded this circumstance alone justifies not dismissing the part of the principal application which pertains to the JR Act. The contrary approach urged upon me by senior counsel for the applicant was to stay the court's hand with respect to the whole of the principal application if part of it survives the Department's challenge, but the Department has made out its case for dismissal of the applicant's primary case and there would need in my view to be good reason not to exercise the discretion in its favour, especially where not doing so might needlessly add to the costs of litigating what remains. In this regard, I do not accept that the evidence necessary to support an application for a declaration - once properly, and precisely, formulated - will be anything like the breadth of evidence that might have been required had the applicant's case under the JR Act proceeded.
[33] This part of the challenge by the Department depends on the exercise of the power conferred by s16(e) of the UCPR to set aside an originating process. As I have said on a previous occasion, this power will only be exercised in the clearest of cases.[24] The Department must positively demonstrate why the applicant should be deprived of "the customary tribunal which deals with actions of the kind [it] brings".[25]
[34] As to this, the applicant submitted that, whatever may be the position under the JR Act, there was a clear case for declaratory relief under the CP Act which should be allowed to go to trial.[26] In that regard, it was claimed the applicant has a "special interest" of sufficient strength to support the grant of declaratory relief.[27] This was said to be founded on several propositions which, when gathered together, may be summarised as follows.
[35] First, the Department accepted in their 22 December 2023 letter that the Springs have "spiritual significance" to the applicant. Second, the applicant has obligations to care for the Springs which are protected by s 28(2) of the HR Act. Third, the non-exercise of powers by the Department in this instance was unlawful within the meaning of s 58(1) of the HR Act, albeit not invalid.[28] 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".[29] Fifth, the question is real, not hypothetical.[30] Sixth, a declaratory order will produce foreseeable consequences for the parties.[31]
[36] Most of these propositions are of course disputed by the Department but, assuming the applicant has standing and that a satisfactory case can be made out regarding the proposition that the non-exercise of powers by the Department was unlawful within the meaning of s 58(1) of the HR Act, there can be no doubt a declaration is the appropriate remedy.[32] However, the Department 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 the applicant 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 the applicant the right to proceed to that ultimate determination. Much will depend on the terms of the declaration the applicant seeks and a proper articulation of the legal basis for the claim to unlawfulness, among other things.
[83]
[37] For these reasons, to the extent the principal application seeks a statutory order of review or other relief under the JR Act, it must be dismissed pursuant to s 48(1)(a) of the JR Act. However, to the extent the principal application seeks a declaration under the CP Act, it will stand.
[38] The parties will also be directed to bring in minutes of directions to facilitate the hearing of the claim for declaratory relief. Plainly, directions will be required for the applicant to identify with precision the terms of the declaration sought and the basis for it along with the Department's response, and this will perhaps be best achieved through an exchange of Points of Claim and Points of Defence. Consideration will of course also need to be given to joining the miner to the proceeding and the interlocutory processes which will need to be engaged once the issues are satisfactorily defined.
[39] Orders will be made accordingly.
[84]
[1] Section 28(2) of the HR Act provides that "Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community:
[85]
(a) to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and
[86]
(d) 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
[87]
(e) to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources."
[88]
[2] See, for example, ss 507 - 513 (enforceable undertakings), ss 363A - 363E (directions notices, but since repealed), ss 363F - 363L (clean-up notices, but since repealed), ss 465 and 466 (coercive information-gathering powers) and s 467 (emergency powers).
[20]Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd(2019) 264 CLR 1, [28]. And see Sica v Attorney-General for the State of Queensland(2021) 9 QR 543, [15].
[6] Section 358 of the EP Act empowers the Department as the administering authority under that statute to issue an environmental protection order to require a person to do one or more of the various things specified in that provision. Those things relevantly include securing compliance with "a condition of an environmental authority": s 358(d)(iii). By s 360 of the EP Act, an environmental protection order may "impose a reasonable requirement relevant to" such a matter and, further, require the recipient to "not start, or stop, a stated activity indefinitely, for a stated period or until further notice from the Department": s 360(2)(a). It is an offence for a recipient to wilfully contravene an environmental protection order: s 361.
[7] Section 505 of the EP Act enables a proceeding to be brought in the Planning and Environment Court for "an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act". Such a proceeding may be brought by the responsible Minister, the Department, "someone whose interests are affected by the subject matter of the proceeding" (s 505(1)(c)) or "someone else with the leave of the Court (even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding)" (s 505(1)(d)). In deciding whether to grant leave to a person under s 505(1)(d), the court must be satisfied about a number of things, including that "environmental harm has been or is likely to be caused" (s 505(2)(a)). Plainly, a proceeding may be commenced by the Minister, the Department or a person whose interests are affected by the subject matter of the proceeding as of right. On the hearing of a proceeding, the court is vested with a range of powers, including the power to make orders in the nature of injunctions to stop an activity that is or will be a contravention of the EP Act, or to do anything required to comply with, or to cease a contravention of, the EP Act.[4] Furthermore, the court is empowered by s 506 of the EP Act to make an interlocutory order to the same effect, pending determination of the proceeding.
[8] That explained, in the letter of 22 November 2023 the solicitors for the applicant and Mr Burragubba referred to a significant body of prior correspondence commencing on 21 April 2021, and attached two expert reports prepared by Professor Matthew Currell from the School of Engineering at RMIT University and Professor Adrian Werner from the College of Science and Engineering at Flinders University. A copy of both reports was tendered on the hearing of this application and, in each, opinions are expressed regarding actual or potential environmental harm to the Springs. Reference was also made to an environmental protection order (EPO) issued by the Department on 2 March 2023 to the miner which prevents it from undertaking underground mining. The point was made that, under the environmental authority (EA) which governs the mining activities (a copy of which was also placed before the court), open-cut mining was being carried out by the miner. In other words, the EPO did not affect continued operations in that respect. Those activities, it was claimed, were causing (or were likely to cause) environmental harm to the Springs, a conclusion which was said to be supported by the opinions expressed by the experts.
[9] Thus, when properly construed, the request made to the Department was for it to consider the exercise of its available statutory powers, including those conferred by ss 358 and 505 of the EP Act, to act in light of what was disclosed in the experts' reports, as the following passages from the 22 November 2023 letter make plain:
[28] It follows in my view that the decision of the Department under consideration was not a decision to which the JR Act applies, and this conclusion makes it unnecessary to discuss at any great length the subsidiary arguments advanced on behalf of the Department. It is sufficient instead to make the following summary observations.
[29] Under the first of the subsidiary arguments, the Department submitted that the decision could not amount to a "final and operative or substantive determination" capable of review. As to this, the Department relied on what was said in Australian Broadcasting Tribunal v Bond[14] about there generally needing to be a determination bearing those qualities before a decision was amenable to review.[15] Some of the language used in the Department's response of 22 December 2023 - the Department could not "currently recommend that proceedings seeking orders under section 505 of the EP Act be brought" - and the further letter of 19 January 2024 - "at this time, I have decided not to recommend commencing proceedings" - was submitted to mean the Department had not finally decided against, for example, the bringing of a proceeding against the miner. Similarly, other portions of both letters were highlighted to support a submission that the Department would continue to consider the substantive issues raised by the applicant in relation to the Springs and might take action of the kind requested at some time in the future. I was unimpressed by this argument. The Department was asked to exercise powers available to it under the EP Act in light of what was disclosed in the experts' reports. For the reasons expressed in the letters to which I have just referred, it decided not to do so and this decision was twice communicated to the applicant. Any equivocation in the language used in those communications cannot sensibly be regarded as detracting from the proposition that the decision was accompanied by the essential qualities discussed in Bond. The Department made a final decision on the applicant's request based on the material available to it.
[30] In contrast, the second subsidiary argument may be accepted, although it only goes in answer to that part of the applicant's complaint which concerns the Department deciding not to commence a proceeding under s 505 of the EP Act. To be clear, this argument does not bear on the decision not to exercise the other powers available to the Department under that statute. As to the argument, the exercise of a "power to commence litigation" does not, without more, "confer, alter or otherwise affect legal rights or obligations".[16] Rather, the exercise of such a power does no more than "invoke the jurisdiction of a court to vindicate pre‑existing rights and liabilities".[17] That is well-established to be the position where the power to commence a proceeding is actually exercised and it must follow that the position will be no different if the relevant decision was to not exercise the same power. As Jackson J said in Murphy v Legal Services Commissioner:[18]