Carter v Minister for Aboriginal Affairs [2005] FCA 667

Carter v Minister for Aboriginal Affairs [2005] FCA 667

The Minister’s refusal or failure to exercise an own-motion power to make a declaration under s 21D(2) or s 21E(2) is not a reviewable ‘decision’ under the AD(JR) Act, as it is only preparatory and not imposed by a statutory duty. Accordingly, there is no basis for review under ss 5, 6, or 7 of the AD(JR) Act, nor for mandamus. No cause of action lay against the Museums Board to support injunctive relief, so all applications were incompetent and dismissed.

Jurisdiction
Australia
Judgment Date
23 May 2005
Procedural Posture
Judicial Review (federal Administrative Law) / Ruling on Objection to Competency and Substantive Orders
Outcome
Objection to competency upheld, application dismissed, injunction dissolved, costs orders made
Legal Topics
['judicial Review of Administrative Decisions' 'decisions Under Aboriginal Heritage Legislation' 'availability of Mandamus or Injunction' 'standing to Seek Review' 'duty to Decide Under an Enactment']
['administrative Law'] ['judicial Review of Administrative Decisions' 'decisions Under Aboriginal Heritage Legislation' 'availability of Mandamus or Injunction' 'standing to Seek Review' 'duty to Decide Under an Enactment']

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Procedural Posture

Judicial Review (federal Administrative Law) / Ruling on Objection to Competency and Substantive Orders

Legal Issues

  1. 1 ['Whether the Minister’s decision not to exercise own-motion power under s 21D(2) or s 21E(2) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is a ‘decision to which this Act applies’ under the Administrative Decisions (Judicial Review) Act 1977 (Cth)' 'Whether mandamus can issue compelling the Minister to determine on own motion that a declaration of preservation should be made' 'Whether review is available under s 6 or s 7 of the AD(JR) Act for such decisions or conduct' 'Whether the Court has jurisdiction to grant injunctive relief against the Museums Board of Victoria']

Ratio Decidendi

The Minister’s refusal or failure to exercise an own-motion power to make a declaration under s 21D(2) or s 21E(2) is not a reviewable ‘decision’ under the AD(JR) Act, as it is only preparatory and not imposed by a statutory duty. Accordingly, there is no basis for review under ss 5, 6, or 7 of the AD(JR) Act, nor for mandamus. No cause of action lay against the Museums Board to support injunctive relief, so all applications were incompetent and dismissed.

Court Disposition

Objection to competency upheld, application dismissed, injunction dissolved, costs orders made

Orders

  • ["The first respondent's objection to competency be upheld." 'The application be dismissed.' 'The injunction granted 20 May 2005 against the second respondent be dissolved.' 'There be no order as to the costs of the first respondent.' 'The applicants pay the costs of the second respondent such costs to be taxed in...