Onus v Minister for the Environment [2020] FCA 1807

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)