Phillips & Ors v Commonwealth of Australia & House [2003] ACTSC 4 (4 February 2003)

Last Updated: 21 February 2003

JANNETTE KAYE PHILLIPS & ORS v COMMONWEALTH OF AUSTRALIA and MATILDA HOUSE [2003] ACTSC 4 (3 February 2003)

CATCHWORDS

INJUNCTION - application to restrain Commonwealth of Australia from removing structure at Aboriginal Tent Embassy - no cause of action identified - structure not part of property on heritage register - inappropriate to fetter Commonwealth's administer land and enforce laws - application refused.

Australian Heritage Commission Act 1975 (Cth), ss 23, 30(2), 33

Environment Protection and Bio-Diversity Conservation Act 1999 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

National Land Ordinance 1989 (ACT)

Trespass on Commonwealth Land Ordinance 1932, subs 8A(2)(b), subs 5

EX TEMPORE JUDGMENT

No 690 SC of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 3 February 2003

IN THE SUPREME COURT OF THE )

) No. SC 690 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JANNETTE KAYE PHILLIPS & ORS

Plaintiffs

AND: COMMONWEALTH OF AUSTRALIA

First Defendant

AND: MATILDA HOUSE

Second Defendant

ORDER

Judge: Crispin J

Date: 3 February 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The present application arises from an incident that occurred during last month, when a group of supporters made a gift of an A frame structure to people associated with the Aboriginal Tent Embassy, apparently to celebrate the 31st anniversary of the Embassy.

2. The A frame structure, described as a Goonji, has been called the `Crow Williams Goonji'. It is said that it meets a long standing and pressing need for a place where people can meet and be protected from the extremes of the weather and that it also served the purpose of providing safe storage for documents.

3. There is hearsay evidence before me to the effect that the National Capital Authority has expressed an intention to remove the structure.

4. There is further evidence before me of various incidents involving altercations at the site, which for present purposes need not be recounted in any detail.

5. The notice of motion is filed in proceedings number SC 690/2002, which were commenced by an originating application that has subsequently been amended as a result of an order that I granted earlier today. The nature of the action is described as being an action brought pursuant to the Australian Heritage Commission Act 1975 (Cth) and the Environment Protection and Bio-Diversity Conservation Act 1999 (Cth). It is alleged that the Aboriginal Tent Embassy site is listed in the Register of the National Estate pursuant to s 23 of the Australian Heritage Commission Act and that it is an integral part of the cultural environment of Australia and attracts the additional statutory protection afforded by various provisions of the Environment Protection and Bio-Diversity Conservation Act. A copy of a report dealing with the registration of the site of the National Estate database is in evidence before me and it contains a description of the site.

6. Ms Gillespie, who appears for the applicants, submits that the court is empowered to grant the relief sought because s 30(2) of the Australian Heritage Commission Act provides that an action of the kind referred to in subs (1) of that section, that being an "action that adversely affects, as part of the national estate, a place that is in the Register", shall not be taken by the Commonwealth unless the relevant authority -

"is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken."

7. Ms Gillespie also relies upon subs (3) of that section, which provides that -

"[b]efore a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission [that is of course the Commission established under that Act] of the proposed action and give the Commission a reasonable opportunity to consider and comment on it."

8. These provisions, of course, impose a duty upon the relevant Commonwealth authorities. They do not, of themselves, create a right of judicial review. In the present proceedings, despite some discussion of this incident, no relevant cause of action that would support the relief claimed has been identified. It does not appear, despite my reference to this possibility, that a review is sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and no other cause of action was suggested in argument.

9. Furthermore, as Mr O'Donovan, who appears for the respondent, points out, the relief sought in the notice of motion does not seem to be related to the issues raised in the amended originating application, which seeks declaratory relief in relation to incidents that occurred in October 2002 and does not, of course, advert to the new structure. More fundamentally, Mr O'Donovan submits that the relief sought could not be granted because it would effectively restrain the Commonwealth from lawfully administering what is national land.

10. As Mr O'Donovan points out, the National Land Ordinance 1989 (ACT) retains the effectiveness of a number of earlier ordinances including the Trespass on Commonwealth Land Ordinance 1932 subs 8A(2)(b) of which provides that "a person shall not erect a structure on unleased land". Subsection (5) of that section also provides a statutory mechanism for the removal of structures on unleased land.

11. I accept Mr O'Donovan's submission that there are no grounds for the injunction sought by the applicants. It seems to me that it would be quite inappropriate for me to seek to fetter the power of the Commonwealth to administer land that it lawfully controls in accordance with the laws that it is obliged to enforce. No cause of action, as I have indicated, has been identified which would authorise the court to grant the relief sought.

12. There are other difficulties in the path of the application. The first is that the structure identified has been present for only a month and the entry on the Register was made in 1995. Despite the reference in the description in the Register to the site being a `living site', it does not seem to me that the registration would be interpreted to extend to structures that were not then in existence. Ms Gillespie submitted that the description left the door open to further development as needed. I am unable to accept that submission. The purpose of heritage legislation is to ensure the preservation of property in existence at the time the order is made. It is not to ensure the preservation of property not yet constructed and it is certainly not the purpose of heritage legislation to grant to occupants of a site carte blanche to erect any further structures that they may wish, without the consent of the relevant planning authorities or, in this case, the Commonwealth which administers the land.

13. Furthermore, there is no evidence before me and I have no reason to believe that the National Capital Authority has not satisfied itself of the matters of which it is required to be satisfied by s 30(2) of the Australian Heritage Commission Act, or that it has failed to inform the Commission as required by s 33. In short, I simply cannot be satisfied that there is any viable cause of action that would authorise the court to make the order sought. And for that reason, the applications must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin

Associate:

Date: 3 February 2003

Counsel for the plaintiffs: R Gillespie

Counsel for the first defendant: D O'Donovan

Solicitor for the first defendant: The Australian Government Solicitor

Date of hearing: 3 February 2003

Date of judgment: 3 February 2003