Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809

FEDERAL COURT OF AUSTRALIA

Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809 File number: SAD 224 of 2021

Judgment of: CHARLESWORTH J

Date of judgment: 18 July 2023

Catchwords: ADMINISTRATIVE LAW – two consolidated applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – decision under s 14 of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) to declare a parcel of land known as Napandee as the site for the establishment and operation of a facility for the management of radioactive waste and to declare certain rights in that land to be extinguished – where the decision-maker made statements in the course of promoting a policy for the amendment of the NRWM Act to repeal the decision making power and instead directly provide for the identification and acquisition of the site – where attempts to amend the legislation were ultimately unsuccessful – whether in the course of promoting the policy for reform the decision-maker made statements that might cause a fair-minded lay observer to apprehend that the decision-maker might not bring an open mind to bear on the issues to be decided in the later exercise of the statutory power – whether the decision-maker made errors of law in his conclusions as to the operation of the statute conferring the power and other legislation that continued to apply – where the rules of procedural fairness were expressly limited – whether the decision was affected by legal unreasonableness by reason of a failure to provide the applicants with an opportunity to comment on adverse material – interrelation between principles for the implication of an obligation to afford procedural fairness and the implication of a condition that a statutory power be exercised reasonably CONSTITUTIONAL LAW – provisions of the NRWM Act supported by the legislative power of the Commonwealth to make laws with respect to defence and external affairs – allegation that the law was supported by neither power or alternatively that the law could not be read down so as to be supported by either of them – law having a stated object to implement Australia's obligations under an international convention – whether the law was reasonably capable of being considered appropriate and adapted to that purpose – whether the radioactive waste management facility authorised by the decision under review could be supported by the defence power even if a very small proportion of the radioactive waste to be located there was related to military activities