Onus v Minister for the Environment

• Jurisdiction: Australia Federal only
• Judgment Date: 17 December 2020
• Neutral Citation: [2020] FCA 1807
• Court: Federal Court
• Date: 17 December 2020

Federal Court of Australia

Onus v Minister for the Environment [2020] FCA 1807

File number:	VID 599 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	17 December 2020
Catchwords:	ADMINISTRATIVE LAW – application for judicial review challenging the lawfulness of the Minister’s decision dated 6 August 2020 not to make declarations under ss 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Act) in relation to the effect on an area and certain trees claimed to be of particular significance for Aboriginals relating to the construction and alignment of a section of the Western Highway between Ararat and Buangor in Victoria – six grounds of judicial review raised – challenge to the lawfulness of the Minister’s decision in relation to the application for a declaration under s 10 of the Act dismissed – Minister’s decision in respect of the application for a declaration under s 12 of the Act found to be invalid in law and set aside – whether the Minister’s decision regarding ss 10 and 12 was severable – Minister directed to refer the s 12 application for reconsideration and determination according to law by another Minister with responsibility for administering the Act
Legislation:	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 4, 7, 9, 10, 12, 13, 16, 22, 23, 26 Acts Interpretation Act 1901 (Cth), s 19(1) Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(2)(b), 5(2)(g), 5(3)(a), 5(3)(b), 16(1)(d) Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), s 501CA(4)(b)(ii) Aboriginal Heritage Act 2006 (Vic)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; 123 FCR 62 Clark v Minister for the Environment [2019] FCA 2027; 274 FCR 99 Clark v Minister for the Environment (No 2) [2019] FCA 2028 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 Thorpe v Head, Transport for Victoria [2020] VSC 804 Tickner v Bropho (1993) 40 FCR 183 Tickner v Chapman [1995] FCAFC 1726; 57 FCR 451 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Minister for Immigration v Li [2013] HCA 18; 249 CLR 332 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 21
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	164
Date of last submissions:	15 December 2020
Date of hearing:	7-8 December 2020
Counsel for the Applicants:	Mr A McBeth
Solicitor for the Applicants:	Michael I. Kennedy & Associates
Counsel for the Respondent:	Mr G Kennett SC with Ms G Wright
Solicitor for the Respondent:	Clayton Utz

ORDERS

		VID 599 of 2020
BETWEEN:	LORRAINE SANDRA ONUS First Applicant ; MARJORIE THORPE Second Applicant
AND:	MINISTER FOR THE ENVIRONMENT Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	17 DECEMBER 2020

THE COURT ORDERS THAT:

1. The decision of the respondent dated 6 August 2020 not to make a declaration under s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is set aside from the date it was made.

2. The application dated 17 June 2018, insofar as it relates to s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), be remitted to the Minister with a direction that she refer the application for reconsideration and determination according to law by another Minister with responsibility for administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

3. The respondent pay the applicants’ costs of the application, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction	[1]
Summary of procedural history	[6]
The Minister’s statement of reasons summarised	[16]
The applicants’ six judicial review grounds	[18]
The applicants’ submissions summarised	[19]
(i) Ground 1: Failure to commission and receive a report under s 10(1)(c) of the Act relating to the application	[20]
(ii) Ground 2: Unreasonable failure to exercise the power to obtain an up-to-date report	[25]
(iii) Ground 3: Error in the treatment of the MRPV draft Framework	[27]
(iv) Ground 4: Failure to take into account relevant considerations, namely submissions	[32]
(v) Ground 5: Erroneous finding that an alternative route would have similar Aboriginal heritage protection issues	[35]
(vi) Ground 6: Error in the treatment of cost estimates	[41]
The Minister’s submissions summarised	[44]
(i) Ground 1: Failure to commission and receive a report under s 10(1)(c) of the Act relating to the application	[44]
(ii) Ground 2: Unreasonable failure to exercise the power to obtain an up-to-date report	[45]
(iii) Ground 3: Error in the treatment of the MRPV draft Framework	[46]
(iv) Ground 4: Failure to take into account relevant considerations, namely submissions	[49]
(v) Ground 5: Erroneous finding that an alternative route would have similar Aboriginal heritage protection issues	[50]
(vi) Ground 6: Error in the treatment of cost estimates	[52]
Consideration and determination	[55]
(a) The relevant legislative provisions	[55]
(b) The purposes of the Act	[71]
(c) The applicants’ six judicial review grounds	[77]
(i) Ground 1: Failure to commission and receive a report under s 10(1)(c) of the Act relating to the application	[78]
(ii) Ground 2: Unreasonable failure to exercise the power to obtain an up-to-date report	[84]
(iii) Ground 3: Error in the treatment of the MRPV draft Framework	[86]
A. Judicial review of the Minister’s state of satisfaction under s 12(1)(b)(ii) of the Act	[87]
B. The Minister’s statement of reasons and...