Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18

ORDER

1. Answer the questions reserved as follows:

Question 1: No.

Question 2: Unnecessary to answer.

2. The first defendant pay the plaintiffs' costs of the questions reserved.

Cur adv vult

The following written judgments were delivered:—

6 September 1996 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

On or about 16 January 1996, the Minister for Aboriginal and Torres Strait Islander Affairs (the first defendant) nominated the Hon Justice Jane Mathews (the second defendant) to prepare a report under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth (the Act). Justice Mathews accepted that nomination. The plaintiffs seek a declaration that the nomination and/or appointment of Justice Mathews and her acceptance of the nomination are incompatible with her commission as a Judge of the Federal Court of Australia and/or with the proper performance of her judicial functions as a Judge of that Court. Two questions were reserved by the Chief Justice pursuant to s 18 of the Judiciary Act 1903 Cth for the consideration of the Full Court, namely:

1. Is the nomination and/or appointment of the second defendant by the first defendant to make a report under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth effective to authorise the second defendant to make a report to the first defendant in satisfaction of s 10(1)(c) of the Act?

If yes to question 1:

2. Is the second defendant incapable by reason of judicial office of accepting the nomination and/or appointment by the first defendant of the second defendant to make a report under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Cth?