The Honourable Cohen, B v. Peko-Wallsend Ltd & Ors [1987] FCA 478

The Honourable Cohen, B v. Peko-Wallsend Ltd & Ors [1987] FCA 478

The Cabinet decision to nominate Stage II of Kakadu National Park for inclusion in the World Heritage List was not justiciable. It involved complex policy considerations and was an exercise of prerogative power in the realm of international relations, an area considered inappropriate for judicial review. Furthermore, the decision did not directly alter or deprive the respondents of legal rights or legitimate expectations, nor did it impose a duty to accord natural justice.

Parties
First Appellant: The Honourable Barry Cohen, Minister for Arts Heritage and Environment; Second Appellant: The Honourable Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia; Third Appellant: The Commonwealth of Australia; First Respondent: Peko-Wallsend Limited; First Respondent: Peko Exploration Limited; First Respondent: Peko-Wallsend Operations Limited; First Respondent: Electrolytic Zinc Company of Australasia Limited; Second Respondent: Attorney-General for the Northern Territory of Australia
Jurisdiction
Australia
Judgment Date
07 September 1987
Procedural Posture
Appeal From Judgment of a Single Judge of the Federal Court of Australia / Full Court Judgment on Appeal
Outcome
Appeal allowed. Orders of the primary judge set aside. Order nisi discharged. Respondents ordered to pay appellants' costs.
Legal Topics
Justiciability of Cabinet Decisions, Natural Justice in Executive Decision Making, Prerogative Powers and Judicial Review, Intergovernmental Relations, Mining and Environmental Law
Administrative Law Constitutional Law Justiciability of Cabinet Decisions Natural Justice in Executive Decision Making Prerogative Powers and Judicial Review Intergovernmental Relations Mining and Environmental Law

Case Brief

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Parties

The Honourable Barry Cohen, Minister for Arts Heritage and Environment

First Appellant

The Honourable Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia

Second Appellant

The Commonwealth of Australia

Third Appellant

Peko-Wallsend Limited

First Respondent

Peko Exploration Limited

First Respondent

Peko-Wallsend Operations Limited

First Respondent

Electrolytic Zinc Company of Australasia Limited

First Respondent

Attorney-General for the Northern Territory of Australia

Second Respondent

Procedural Posture

Appeal From Judgment of a Single Judge of the Federal Court of Australia / Full Court Judgment on Appeal

Legal Issues

  1. 1 Whether Cabinet decisions exercising prerogative power are subject to judicial review
  2. 2 Whether the principles of natural justice apply to Cabinet decisions affecting private interests
  3. 3 Whether the Cabinet decision to nominate Stage II Kakadu National Park for World Heritage Listing was justiciable

Ratio Decidendi

The Cabinet decision to nominate Stage II of Kakadu National Park for inclusion in the World Heritage List was not justiciable. It involved complex policy considerations and was an exercise of prerogative power in the realm of international relations, an area considered inappropriate for judicial review. Furthermore, the decision did not directly alter or deprive the respondents of legal rights or legitimate expectations, nor did it impose a duty to accord natural justice.

Court Disposition

Appeal allowed. Orders of the primary judge set aside. Order nisi discharged. Respondents ordered to pay appellants' costs.

Orders

  • The appeal be allowed.
  • The orders made by the learned primary Judge on 22 December 1986 be set aside and in lieu thereof it be ordered that the order nisi be discharged with costs including reserved costs.