Australia: Ministerial Decisions And Fact Finding On The Protection Of Significant Aboriginal Areas: The Federal Court Reviews Key Principles

Public Law Report

The recent Federal Court of Australia decision, Anderson v Minister for the Environment, Heritage and the Arts (2010) 264 ALR 689, involved a challenge to the decisions of the Minister for the Environment, Heritage and the Arts (the Minister) to decline to make emergency and permanent declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act).


On 16 June 2008, the applicants (both Senior Elders of the Numbahjing Clan within the Bundjalung Nation) lodged claims with the Minister for emergency declarations under s 9 of the Act (the s 9 decision) and a permanent declaration under s 10 of the Act (the s 10 decision), to protect land at North Angel Beach from desecration by a proposed residential development.

The applicants contended that the land was of particular significance to Indigenous Australians and should be protected as the land was:

  • where a recorded massacre of Bundjalung people took place in the 19th century, and
  • near a significant Aboriginal archaeological site.

The Minister was not satisfied that the land was a "significant Aboriginal area" within the meaning of the Act and declined to make the declarations.

The applicants sought judicial review of the Minister's decisions under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The applicants' grounds of review were that:

  • regarding the s 9 decision, the Minister failed to give adequate consideration to several matters, took into account various irrelevant considerations and the decision was vitiated by fraud, and
  • regarding the s 10 decision, the Minister erred in fact and law in several instances and applied a standard of proof in determining that the land was not a "significant Aboriginal area" which was too demanding.

The Minister objected to the competency of the applicants' challenge to the s 9 decision claiming it was legislative and not administrative in character and could not be challenged under the ADJR Act. Further, the Minister contended that both the s 9 and s 10 decisions were legislative in nature to support the claim that a more stringent test should be applied to such decisions than would be the case were the decisions administrative in character. The Minister also claimed that there was no utility in setting aside the s 9 decision whether or not the challenge to the s 10 decision was also successful.


Justice Foster recognised that the essential distinction between legislative and administrative acts is that legislative acts create or formulate new rules of law having general application, whereas administrative acts comprise the application of those general rules of law to particular cases (Minister for Industry & Commerce v Toohey Ltd (1982) 60 FLR 325 at 331). Legislative decisions are often subject to disallowance by Parliament and, as such, are controlled by Parliament (RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 at [51]-[56]).

His Honour then held that a declaration under s 9 or s 10 of the Act is legislative in character (following Von Doussa J in Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62). However, the Minister's refusal to make such declarations (being the subject of the challenge) is administrative in character and, as such, amenable to review under the ADJR Act and s 39B of the Judiciary Act (following the observations of Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615). In particular, Foster J recognised that the Minister's refusal to make declarations under ss 9 and 10 of the Act does not create any general rule of law and is not required to be made the subject of a legislative instrument but merely notified to the applicant (at para [51]).

His Honour noted that even if either decision was legislative in nature, the Minister's objection to competency would fail as the applicants also relied on s 39B of the Judiciary Act and this provides a foundation for the Court's jurisdiction (Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 398).

However, in relation to the s 9 decision, Foster J rejected the applicants' grounds of review, finding that the Minister did not fail to give adequate consideration to several matters, did not consider various irrelevant considerations and that the decision was not vitiated by fraud. His Honour held that it was clear from the evidence that the applicants were given every opportunity by the Minister to produce evidence and material in support of their claims (and they took up that opportunity).

Further, his Honour accepted the Minister's submission that there was no utility in the applicants' challenge to the s 9 decision as it had been effectively overtaken by the s 10 decision. This is because the proceedings were commenced after the date upon which the s 9 decision was made and after the Minister provided his Statement of Reasons in respect of that decision but before the s 10 decision was made (this principle was followed most recently in Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256 at [14]-[15]).

In relation to the s 10 decision, after dismissing many of the applicants' grounds alleging error of fact and law, Foster J also held that the applicants' claims that the Minister was too demanding in terms of the standard of proof required to prove that the land was a "significant Aboriginal area", and that the s 10 decision was manifestly unreasonable, were also unsubstantiated. His Honour held that:

  • the Act does not require the Minister to apply any particular standard of proof in deciding whether or not he is satisfied that the site is a "significant Aboriginal area" and there is no principle that requires the application of a particular onus of proof or standard of proof in administrative decision-making (Yao-Jing Lee v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at [288]), and
  • the Minister can approach the finding of facts in any manner he thinks fit subject to:
    • acting in good faith and not arbitrarily or capriciously,
    • considering all matters required to be considered and not taking into account irrelevant matters,
    • not making a finding that no reasonable decision-maker could properly have made,
    • forming findings reasonably upon the material before him,
    • not acting, consciously or unconsciously, perversely, and
  • in refusing to make the declarations, the Minister satisfied the above principles.

Ultimately, Justice Foster held that there were no reviewable errors and dismissed the applicants' application with costs (at [109]- [110]).


In the context of the Act, this case highlights the principles for determining the characterisation of Ministerial decisions as legislative or administrative. It also confirms that while the approach to Ministerial fact finding as accepted by the courts provides wide discretion to decision makers, it is not unlimited and must be exercised subject to the principles outlined above.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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