Williams v Minister for the Environment and Heritage

Federal Court of Australia|2003-05-30|Before: Wilcox J

REASONS FOR JUDGMENT WILCOX J: 1 This application is made under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") seeking review of a decision of the Minister for the Environment and Heritage ("the Minister"). The Minister (the first respondent to the application) decided not to make a declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Act") in relation to land at Lake Cowal in central New South Wales ("the specified area").

The legislation 2 Section 9 of the Act provides: "(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 or she 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." 3 The term "significant Aboriginal area" (used in s 9(1)(b)(i)) is defined in s 3 of the Act as meaning: "(a) an area of land in Australia or in or beneath Australian waters: (b) an area of water in Australia; or (c) an area of Australian waters; being an area of particular significance to Aboriginals in accordance with Aboriginal tradition." 4 Section 11 of the Act provides: "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." 5 Section 22 makes it an offence to contravene a provision of a declaration under s 9.

Background 6 The applicant, Neville Williams, is an Aboriginal. He is a member of the Wiradjuri People and Chairman of the Mooka Traditional Owners Council, an incorporated association that purports to represent the interests of Wiradjuri People resident near Lake Cowal. The Mooka Council claims these people are the traditional owners of the specified area. The Wiradjuri Council of Elders, which purports to represent the interests of all Wiradjuri People, does not accept the Mooka Council's claim. 7 On 17 October 2003, Mr Williams applied to the Minister to make a declaration under s 9 of the Act in relation to the specified area. There was a proposal for the specified area to be the subject of a mining lease, to be granted by the State of New South Wales to Homestake Australia Ltd, now Barrick Australia Limited, the second respondent. I will use the word "Barrick" to refer to this company, whatever its name at the relevant time. I understand the mining lease has now been granted. 8 The specified area was identified on a map attached to the Minister's decision. It extends from the West Wyalong-Burcher Railway on the west to an easterly boundary that lies within the waters of Lake Cowal, when it is full. Judging by the map, approximately one-sixth of the total lake shore lies within the specified area. 9 Mr Williams supported his application by affidavits and statements, made by himself, other Aboriginal people and two archaeologists, Mr David Johnston and Dr Francis Wilfred Shawcross, and by documents concerning applications by Barrick to the New South Wales National Parks and Wildlife Service ("NPWS") for permission to remove and destroy aboriginal artefacts found within the specified area. The affidavits detail the nature and location of numerous artefacts found in and near the specified area. The two archaeologists expressed the view that these were all Aboriginal artefacts, and that many of them were significant pointers to past Aboriginal use of the land. 10 The Minister invited Barrick to respond to Mr Williams' application. Barrick did so. It included in its submission reports from three archaeologists, Dr Colin Pardoe, Dr Johan Kamminga and Dr Frederick Allen, and also an anthropological report written by Emeritus Professor Richard Wright. These reports disputed the rarity and significance of many of the artefacts identified by Dr Shawcross and Mr Johnston but, for the most part, they did not dispute their Aboriginal origin. 11 Mr Williams' application was assessed by an officer in the Minister's Department, Dr Barry Reville. He submitted a Minute to the Minister dated 4 December 2002 in which he discussed the issues and evidence. He did not make a substantive recommendation but he indicated the procedure the Minister ought to take if he decided to make, or alternatively decided not to make, a declaration under s 9 of the Act. On 9 December 2002 the Minister noted on the Minute his decision not to make a declaration. 12 Pursuant to s 13 of the ADJR Act, Mr Williams sought a statement of the Minister's reasons for decision. This was provided on 6 February 2003. 13 In his statement of reasons, the Minister noted that he had previously considered an application under s 9 of the Act for a declaration over a smaller area of the Lake Cowal Gold project area, but was "not satisfied that the area for which protection was sought was a significant Aboriginal area within the meaning of the Act". The earlier area was smaller than the specified area and partly overlapped it. The Minute identified the differences between the two areas and also referred to litigation that had ensued in the New South Wales Land and Environmental Court. 14 In para 10 of his statement, the Minister stated: "On 17 October 2002, I received a second section 9 application from Mr Neville Williams, a Wiradjuri elder, Traditional Owner and native title claimant, seeking emergency protection over the specified area, to prevent: (a) the collection of Aboriginal artefacts; and (b) the destruction of Aboriginal artefacts by Barrick Gold's exploration drill rigs." 15 The Minister then referred to consultation he had undertaken, pursuant to s 13(2) of the Act, with the New South Wales Minister for the Environment. He stated that, on the basis of information supplied to him by that Minister, "I was not satisfied that there was effective protection of the area from the claimed threat of injury or desecration under the law of New South Wales, within the meaning of the Act": see s 13(5) of the Act. 16 In para 14 of his reasons, the Minister listed the material he claimed to have considered in making his decision. In paras 16 to 23, he referred to some elements in the material put before him by Mr Williams, with special mention of the significance of Lake Cowal as a whole. One statement put before the Minister mentioned forbidden zones around the lake, its association with a Rainbow Snake legend and oral history references to the use of the lake by Aboriginal people and a massacre that had occurred there. The Minister also referred to the statements concerning discovery of particular artefacts, including tools, weapons and a scarred tree. The Minister said (in para 22) that, in considering this material, "I also considered several statutory declarations and affidavits from consulting archaeologists disputing the claims made by Mr Williams". 17 The Minister concluded: "24. Most of the evidence relating to significance in Mr Williams' application did not relate to the specified area, but rather the broader Lake Cowal area, with the exception of several sites previously registered by the New South Wales National Parks and Wildlife Service (NSW NPWS). It was clear that Mr Williams, in his application, provided detailed information on the significance of the broader Lake Cowal area in accordance with Aboriginal tradition. It was not clear whether these assertions of significance related to the specified area. 25. In my consideration of the application, I recognised that the wider Lake Cowal area might be of particular significance to Aboriginals in accordance with Aboriginal tradition. However, the evidence presented in the application did not satisfy me that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition. 26. On the basis of the evidence before me, I was not satisfied that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition." 18 On 6 March 2003, Mr Williams filed an application for review of the Minister's decision. The filed application invoked numerous grounds of review, under s 5 of the ADJR Act; but at the hearing only two grounds were pressed: failure to take into account a relevant consideration (see s 5(2)(b)) and Wednesbury unreasonableness (see s 5(2)(g)). 19 On the hearing of the application, Mr Williams was represented by Mr Alan Oshlack, a non-lawyer who appeared by leave of the Court. Ms Kate Eastman of counsel appeared for the Minister. At a late stage of the hearing, Barrick was joined as a respondent. Mr Neil Williams SC then appeared on its behalf but he did not put submissions in respect of the validity of the Minister's decision; he addressed only the question of interim relief against Barrick.

The parties' submissions (i) The applicant 20 The first submission made by Mr Oshlack in support of the first argued ground of review, failure to take into account a relevant circumstance, was that it was incorrect for the Minister to say, as he did in para 24 of his statement of reasons, that "(m)ost of the evidence relating to significance in Mr Williams' application did not relate to the specified area, but rather the broader Lake Cowal area" with the exception of sites previously registered by NPWS. In an endeavour to show error, Mr Oshlack went through the material Mr Williams had submitted to the Minister prior to the latter's decision to refuse a declaration. Mr Oshlack also criticised the last sentence of para 24: "It was not clear whether these assertions of significance related to the specified area". In his written submissions, Mr Oshlack said: "The fact is that Mr Williams, in his application, provided detailed information on the particular significance of the specified area, as well as the significance of the broader Lake Cowal area, in accordance with Aboriginal tradition. The Applicant contends that the lack of clarity was due to the Minister erroneously severing the evidence before him, in relation to the Aboriginal significance of the specified area, from the wider significance of Lake Cowal generally." 21 Mr Oshlack also said: "The Minister failed to consider that Aboriginal Tradition does not distinguish the fundamentally non indigenous view of 'the specified area' being severed from the whole. The Minister failed to consider that the threat of immediate desecration and destruction of the specified area is within the wider cultural landscape of Lake Cowal and is being 'treated in a manner inconsistent with Aboriginal tradition.' Also persons and heavy machinery are passing through and over and entering upon the specified area in a manner inconsistent with Aboriginal Tradition." 22 In relation to the second ground of review, Wednesbury unreasonableness, Mr Oshlack focussed on para 25 of the Minister's statement of reasons. He said there was a logical inconsistency between the Minister saying, on the one hand, that "the wider Lake Cowal area might be of a particular significance to Aboriginals in accordance with Aboriginal tradition" and, on the other hand, that the evidence did not establish "that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition". Mr Oshlack conceded there might be circumstances in which one could say that an area, as a whole, was of particular significance, but a particular portion of it was not. However, he contended that, in such circumstances, it would be incumbent on a decision-maker who was giving reasons for his or her decision to explain the reason why the part did not share the significance that attached to the whole. Mr Oshlack said "the Minister had evidence from a number of Wiradjuri Traditional Owners that the specific area sought to be protected is significant to Aboriginal people in accordance with Aboriginal Tradition."

(ii) The Minister 23 Ms Eastman reviewed the history of the matter and drew attention to the classic statement of Mason J, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, about failure to take into account a relevant circumstance. His Honour said: "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act." (Citations omitted) 24 Ms Eastman noted that, in his reasons for decision, the Minister said "he took into account all the matters which Mr Williams had included in his submissions and applications". She contended Mr Williams had not "identified outstanding issues or further matters which may be relevant". 25 Ms Eastman also submitted the Minister was not under a duty "to make out Mr Williams' application for him" or to "conduct inquiries generally except as required by section 13 of the Act". 26 In relation to unreasonableness, Ms Eastman submitted that "an unreasonable decision is one which no reasonable person could have reached". To uphold this ground, the Court would need to be so satisfied; yet "it is not clear whether the Applicant contends that the Minister's decision was unreasonable because the Minister's decision was perverse, that he took into account irrelevant considerations, formed an opinion which is alleged to have been arbitrary, made because of an insufficiency of evidence, or where the Minister has failed to make inquiries of material centrally relevant to the decision".

Legal principles 27 During the course of oral submissions, mention was made of some principles underlying judicial review of administrative decisions. In view of their importance, I should refer to them. 28 First, the essential difference between judicial review and merits review is that, in merits review cases, but not judicial review cases, a court may substitute its own view about the facts of the case for that of the original decision maker. In judicial review cases, determination of the relevant facts is solely for the original decision-maker. In the course of considering a ground of review that is made available to an aggrieved party by common law or statute - for example, by s 5 of the ADJR Act - it may be necessary for a Court to consider carefully the decision-maker's reasoning which led to the findings of fact. However, under the guise of doing this, it should not substitute its own view of the facts for that taken by the original decision-maker. The rationale of this rule was explained by Spigelman CJ, of the New South Wales Supreme Court, in Bruce v Cole (1998) 45 NSWLR 163 at 184-185. His Honour said: "… it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society such conduct transgresses the proper limits of judicial intervention. It will, if often repeated, undermine the basis for judicial independence and the fundamental role which judicial impartiality plays in the social stability of the nation and the maintenance of personal freedom of its citizens." 29 On the other hand, and consistently with this insistence on substance over form, the law requires that, if a decision-maker is to avoid the reproach of having failed to take into account a relevant consideration, it must appear he or she has given "proper, genuine and realistic" (and not merely token) consideration to all material available and relevant to the decision. The word "relevant", in this context, was explained in Peko-Wallsend. 30 The need for proper consideration has been pointed out in many cases. They are collected in the reasons for judgment of Spigelman CJ in Bruce v Cole at 185-186. Some of the cases arose under the ADJR Act, some under the common law; but the test is much the same. It was expressed by Gummow J, in an ADJR context, in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291: "[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: … The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: …" (Citations omitted) 31 There are also cases, at least under the ADJR Act, in which administrative decisions have been held to be vitiated by the circumstance that the decision-maker made the decision under a misapprehension of material matters of fact: see Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 at 348 (Bowen CJ and Franki J) and 365 (Davies J), Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 at 573 (Smithers J) and Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 373 (Lee J). 32 There are occasions on which failure to take into account a relevant consideration overlaps with unreasonableness. A court is not entitled to strike down an administrative decision on the ground of unreasonableness simply because the judge would have decided the issue differently. Section 5(2)(g) of the ADJR Act refers to "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power". 33 In Council of Civil Services Unions v Minister for Civil Service [1985] AC 374 at 410, Lord Diplock spoke of unreasonableness requiring a decision "so outrageous in its deficiency of logic or of accepted moral standards that no reasonable person who had applied his mind to the question could have arrived at it". In Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 87, Sheppard J disassociated himself from that formulation. He cited the then recent decision of the High Court of Australia in Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412 as a case not falling within Lord Diplock's description in which manifest unreasonableness was found. Chan was a case in which the decision-maker had apparently misunderstood some of the facts and had made a finding (that the appellant did not have a well-founded fear of persecution) that was both unexplained and at odds with accepted evidence. 34 Notwithstanding the difference between the language used by Lord Diplock and that of Sheppard J, it is not enough, either in the United Kingdom or Australia, that the judge disagrees with the decision under review. In Re Minister for Immigration and Multicultural Affairs; ex parte Eshetu [1999] HCA 21; 197 CLR 611 at para 137, Gummow J said: "… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."

Conclusions 35 In para 17 above, I set out the critical part (paras 24 and 25) of the Minister's statement of reasons. As mentioned, Mr Oshlack criticised the opening and closing sentences of para 24. He asserted it was incorrect for the Minister to say, first, that "[m]ost of the evidence relating to significance in Mr William's application did not relate to the specified area, but rather the broader Lake Cowal area" and, second, that it was not clear whether the assertions of significance related to the specified area. 36 The first sentence in para 24 might puzzle anyone who had read the evidence put by Mr Williams before the Minister. That evidence fell into two categories. First, there was evidence about the significance of Lake Cowal, considered as a whole. This involved the Dreaming story of the Rainbow Snake, the reputed massacre (the exact location of which is apparently unknown) and the significance of the lake as a traditional ceremonial site and source of food. It was certainly correct for the Minister to regard this evidence as relating to "the broader Lake Cowal area", but it seems also to have related to the specified area, as part of the whole. 37 The second category of evidence, which was preponderant in terms of volume, was archaeological evidence. Overwhelmingly, the identified archaeological sites and artefacts were within the specified area. The probable reason for this is that the proposal for a mining lease had caused this area to be subjected to particular scrutiny. Whatever the reason, there is no doubt that, in terms of volume, the bulk of Mr Williams' material (and Barrick's response to it) concerns the specified area, rather than the broader Lake Cowal area. 38 Notwithstanding my reaction to the first sentence of para 24, I am not able to find it a source of invalidity. The sentence expresses a judgment by the Minister about the evidence. It was for the Minister to determine the facts relevant to his decision. That task necessarily required him to evaluate the evidence, including by making qualitative judgments about it. If I were to substitute my view for that of the Minister, in relation to that matter, I would commit the error that Spigelman CJ warned against in Bruce v Cole. 39 Although it was a matter of competing submissions, I think the meaning of the final sentence of para 24 of the Minister's reasons is clear and that, in itself, the sentence is unexceptional. The words "these assertions of significance" refer back to the preceding sentence's reference to "detailed information on the significance of the broader Lake Cowal area". In his final sentence in the paragraph, the Minister is simply saying it is not clear whether the asserted matters of general significance in respect of Lake Cowal (the Rainbow Snake, the massacre, the function of the lake in providing food and ceremonial sites) were applicable to the specified area. The Minister is not saying that Mr Williams asserted that only the "broader Lake Cowal area", as distinct from the specified area, had particular significance to Aboriginals in accordance with Aboriginal tradition. 40 On that reading of para 24, the Minister is accepting that Mr Williams had asserted that the broader Lake Cowal area had particular Aboriginal significance. In the opening sentence of para 25 the Minister recognised this might be the case. If that was so, the question would naturally arise whether that part of the broader Lake Cowal area that was within the specified area might share that particular Aboriginal significance. It would not necessarily do so. Speaking hypothetically, there might be material indicating the specified area was different in kind to the generality of the area; for example, it might be shown not to have been a place of traditional Aboriginal resort. If there was such material before him, it would have been open to the Minister to say that, notwithstanding that the broader Lake Cowal area might be a place of particular Aboriginal significance, he was satisfied this was not true of the specified area, the area with which he was directly concerned. 41 The difficulty about the Minister's statement of reasons, as it seems to me, is that it goes directly from the first sentence of para 25 to the second, without indicating how the Minister came to the conclusion that the specified area did not share the particular significance that he thought might attach to the whole. Logically, there are two alternative ways in which this might have been done: (i) having reached a tentative conclusion about the wider Lake Cowal area, the Minister might have investigated the matter further in order to reach a definite decision, and have concluded, first, that in fact the wider ara did not have particular Aboriginal significance and, second, that there was nothing about the specified area that put it into a different category; or (ii) retaining the tentative conclusion about the wider area, the Minister might have focussed particular attention on the specified area and satisfied himself that it did not share the characteristics of the whole. Both of these alternatives would have required detailed analysis of the material, as it relates to the specified area. 42 The Minister's statement of reasons was required, under s 13 of the ADJR Act, to be "a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". So it is reasonable, and not unfair to the Minister, for me to approach the case on the basis that the statement fully reveals his reasoning process and the evidence that he took into account. It will be apparent that he took neither of the courses indicated in the preceding paragraph. Nowhere did the Minister indicate that he had considered whether the particular significance that might attach to the broader Lake Cowal area might also attach to the substantial portion of it that fell within the specified area. There was nothing in Mr Williams' material that suggested it did not. Indeed, the abundance of archaeological material discovered in the specified area would tend to suggest it did. Although there was dispute between the experts about the rarity and significance of many of the artefacts, it seems to have been common ground between them that the artefacts indicated a substantial Aboriginal connection with the specified area. Why did this not suggest the specified area at least shared whatever significance attached to the lake as a whole? The Minister did not say. 43 The Minister did make a claim to have taken into account the material relating to artefacts. In the opening words of para 23 he said: "In summary, I considered the significance values of Lake Cowalaccording to Mr Williams, with support from other Wiradjuri people and consulting archaeologists to be as follows." The Minister then listed numerous items. He included "Aboriginal stone artefacts including: density, diversity and possible subsurface artefacts (identified by Neville Williams, William Shawcross and David Johnston)". However, the Minister said he had taken account of the listed material in consideration of "the significance values of Lake Cowal" - that is, Lake Cowal as a whole, not the specified area. Nowhere did the Minister relate this material to the issue he had to determine: the significance of the specified area. 44 In the second sentence in para 25, the Minister said he was not satisfied about the particular significance of the specified area. That was a matter for him to determine. If he had reached that conclusion without legal error or manifest unreasonableness, it would not be vulnerable to attack in this Court. However, when the Minister's statement of reasons for decision is read as a whole, it seems to me clear that he failed to give proper, genuine and realistic consideration to the significance of the specified area, as distinct from the wider Lake Cowal area. Accordingly, he failed to take a relevant consideration into account; indeed, he failed to address the very issue he was required to consider. The ground identified in s 5(2)(b) of the ADJR Act is made out. 45 I make clear that, in finding Mr Williams has made out a case for relief, I am not expressing any view about some contentious surrounding issues. 46 First, my decision does not indicate any view about the merits of the contest between the Mooka Traditional Owners Council and the Wiradjuri Council of Elders (or any other group) to be recognised as the proper representative of the traditional owners of the land. Unless that issue is resolved by agreement, it may have to be addressed in one or more of the native title proceedings that are now pending before the Court. It does not arise in this case. Mr Williams' entitlement to make an application arose out of the undisputed fact that he is an Aboriginal, within the definition of that word in s 3 of the Act, and accordingly is entitled to seek a declaration under s 9 of the Act. Because his application was refused, he was entitled to seek review of the Minister's decision in this Court; he is a "person who is aggrieved" by the Minister's decision: see the opening words of s 5(1) of the ADJR Act. His standing in this Court has nothing to do with his position in the Mooka Traditional Owners Council or the status or activities of that body. 47 Second, my finding that the Minister's decision is legally flawed does not reflect any view about the degree of Aboriginal significance that attaches to the specified area. That is a matter for the Minister to determine, not for me. Similarly, it is for the Minister to determine whether it is appropriate for him to make a declaration under s 9 of the Act. I intend to indicate no view about that.

Disposition 48 I propose to make an order that the decision of the Minister of 9 December 2002 be set aside and the application for a declaration under s 9 of the Act be remitted to him for further consideration and determination according to law. 49 Mr Oshlack submitted that, if Mr Williams was successful in setting aside the Minister's decision, I ought to make an order under s 16(1)(d) of the ADJR Act directing Barrick to refrain from doing any act in the specified area until the Minister has redetermined the s 9 application. When this submission was made, I pointed out to Mr Oshlack that s 16(1)(d) permitted the Court to make an order only against a party; Barrick was not then a party. However, notice was given to Barrick and Mr Neil Williams SC attended Court at short notice. No objection being raised, I granted leave to the applicant to join Barrick as second respondent and debate ensued as to whether it would be appropriate to make a s 16(1)(d) order if the applicant were successful. 50 During the course of this debate, I was informed, first, that a program of exploratory drilling was currently underway in the mining lease area; that is, within the specified area. Second, arrangements had been made to commence a program of identifying Aboriginal artefacts in the mining lease area and removing them to protective storage. No other activity was planned for the immediate future. 51 I have given consideration to the question whether I ought to make an order under s 16(1)(d). I am satisfied I have power to do so. I am also satisfied that it would be appropriate to exercise this power, but in a qualified way. On the one hand, it is undesirable that any extensive site work occur until the Minister has made a valid determination of Mr Williams' claim for a declaration under s 9 of the Act. On the other hand, it would be unfair to Barrick to interrupt an existing program of work, which is apparently not highly invasive, in circumstances where the Minister's error was not caused by Barrick and there is a possibility that the Minister may ultimately, and validly, refuse to make a declaration. Accordingly, I think it is appropriate for me to order Barrick, pending the Minister's decision or a judge's order, to refrain from carrying out any work on the specified area other than continuation of the exploratory drilling program that was being carried out on the date of hearing and identification and removal to protective storage of artefacts found on that land. In case this order gives rise to any perceived problem, there will be liberty to apply on two days' notice. 52 The Minister must pay any costs that have been incurred by Mr Williams or Barrick in connection with the proceeding. EX TEMPORE ADDENDUM TO REASONS FOR JUDGMENT 53 Earlier this morning, I set aside a decision made by the first respondent, the Minister for the Environment and Heritage ("the Minister"), in which he refused to make a declaration pursuant to s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act. I held the Minister's decision was invalid, for reasons that I gave. I directed the matter be remitted to the Minister for consideration and determination according to law. I also made an order that, pending further determination by the Minister of the applicant's application for a declaration, or further order of a judge of the Court, the second respondent, Barrick Australia Limited, be restrained from carrying out any work on the land, the subject of the s 9 application, with the exception of certain specified work. 54 Immediately after I made these orders, Mr Beech-Jones of counsel, who appeared to take judgment on behalf of Barrick, submitted the Court had no power to make the restraining order. The Court's power had been discussed at the hearing on 21 May 2003. Reference had then been made to s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977. It seemed to me that, upon its natural construction, that paragraph allowed a restraining order to be made in the circumstances of this case. In making my order earlier today, I relied on that paragraph. 55 Unfortunately, in taking that course, I overlooked the decision of the High Court of Australia in Johns v Australian Securities Commission (1993) 178 CLR 408. This decision was not drawn to my attention in submissions at the hearing. In saying that, I offer no criticism of counsel. Counsel for Barrick on that occasion, Mr Neil Williams SC, attended court at short notice and probably without any prior awareness of the possibility of a restraining order being made against his client. Having now read Johns, Iam satisfied it is not open to me to make a restraining order under s 16(1)(d), however convenient that might be, at least from the applicant's point of view. 56 Mr Oshlack, on behalf of the applicant, contended that Johns is not an authority standing in his way. He emphasised the factual differences between the two cases. Indeed, they are factually different. There were probably also other circumstances in Johns, other than lack of power, which militated against a s 16(1)(d) order. However, it seems to me the language used in the judgments admits of little doubt about the Court's lack of power in the present case; with perhaps the exception of the judgment of Gaudron J. Her Honour took a somewhat wider view of the scope of the paragraph, which arguably might cover the present case. However, if her view differed from that of the other members of the Court, it was a minority view. 57 It is sufficient for me to refer to some passages in the judgment of Brennan J, the presiding judge. At 433, his Honour said: "The relief which may be ordered under s. 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an unchartered course without legal reference points by which to steer." His Honour then referred to the decision of the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, at 644-645, which had been argued by counsel for Mr Johns to interpret s 16(l)(d) in a manner sufficiently wide to permit the grant of relief to his client. That argument is similar to the view which I formed when I decided to make the orders. However, Brennan J thought Park Oh Ho did not assist Mr Johns. At 434, his Honour said: "However, s. 16(1)(d) applies only when the making of an order is 'necessary to do justice between the parties'. That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an enforceable obligation of confidence." His Honour then pointed out that, in the case before the Court, that was not the factual situation. He said: "If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s. 16(l)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act. 58 The other members of the Court, with the possible exception of Gaudron J, expressed views consonant with this. 59 The interpretation given to s 16(1)(d) in Johns severely restricts its scope. It seems to result in a situation that the paragraph can be used against a person (other than the decision maker himself or herself) who is affected by an impugned statutory decision only if the applicant in the ADJR Act proceeding already had some other cause of action against that person. If that is right, s 16(1)(d) adds little to rights which are already held. 60 However this may be, I am bound by Johns. I think it leads to the conclusion that, contrary to my first impression, I do not have power to make an order under that paragraph in the present case. Accordingly, I propose to revoke order 5 made by me this morning. 61 I have discussed with Mr Lloyd, the counsel who today appears for the Minister, the likely date of the Minister's further determination. I understand that, since the hearing of this matter last week, Mr Williams has made a further application under s 9 of the Aboriginal and Torres Strait Island Heritage Protection Act, and that work is already under way in connection with that application. Mr Lloyd indicated the Minister would wish to have 14 days to dispose of the application being remitted to him. He has given me a break-up of the required time. Having regard to the Minister's obligation to comply with the procedural provisions of s 13 of the Aboriginal Torres Strait Islander Heritage Protection Act, and also the obligations of natural justice, I accept that 14 days is a reasonable period. 62 I think it is desirable for me to put a time limit on the Minister's reconsideration. I propose to do this in lieu of the previous order 5. I appreciate that, from the applicant's point of view, this is a less satisfactory situation than the one I had previously intended. However, I am limited in my power, and I must act within those limits. 63 The formal order I make is to revoke order 5 of the orders made this morning and, in lieu thereof, to make a new order 5 in the following form: "5. I direct that the Minister complete his determination of the remitted application, and notify his decision thereon to the other parties to this proceeding, by not later than Friday, 13 June 2003."

64 The costs order I made this morning will not apply to any costs incurred in connection with the argument that has given rise to the orders I have just made. Having regard to the circumstances, it is appropriate that each of the parties bear their own costs in relation to that matter. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate: Dated: 30 May 2003 Mr A Oshlack appeared on behalf of the Applicant by leave

Counsel for the First Respondent: Ms K Eastman Mr S Lloyd on 30 May 2003

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr N Williams SC Mr R Beech-Jones on 30 May 2003

Solicitor for the Second Respondent Blake Dawson Waldron

At a glance

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Before

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Judgment (14 paragraphs)

Parties

Cases Cited (10)