Case: Carter v Minister for Aboriginal Affairs [2005] FCA 667
Outcome: distinguished
A further authority referred to by counsel for the Authority in the course of argument was Carter v Minister for Aboriginal Affairs [2005] FCA 667. In that case, Ryan J held, inter alia , that the Minister's refusal to exercise his power under s 21D(2) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to make a temporary declaration of preservation was not a decision for the purposes of s 3(1) of the ADJR Act. 47 Subsections 21D(1) and (2) of that particular legislation were in the following terms: '(1) If a local Aboriginal community decides, whether after an application is made to it or on its own motion, that: (a) a place or object in the community area is an Aboriginal place or Aboriginal object; and (b) that place or object is under threat of injury or desecration; the community may advise the Minister that it considers a temporary declaration of preservation should be made. (2) On receiving advice under subsection (1) or determining on his or her own motion that a temporary declaration of preservation should be made, the Minister: (a) shall, within 14 days, cause notice of the advice or determination to be given to any person who is likely to be affected by the making of a declaration; and (b) shall give any such person an opportunity to be heard.' 48 Ryan J found that the Minister there had not received advice from a local Aboriginal community in accordance with s 21D(1), and thus the issue of relevance was whether or not the Minister's decision not to determine[e] on his...own motion that a temporary declaration of preservation should be made was a reviewable decision for the purposes of s 5(1) of the ADJR Act. The Minister had informed the applicants in writing that he would 'consider' their request for a determination on his own motion, but later told the applicants that he would not do so pending the resolution of another proceeding before this Court involving the same artefacts. His Honour found that the Minister's decision was a decision to decline to determine[e]...on his own motion and was thus made 'preparatory' to the making of a decision to determine to make a temporary declaration. Alternatively, his Honour characterised the decision declining to so determine[e] as 'a conclusion reached as a step on the way to an ultimate decision', which is not reviewable, for that reason also, thereby referring to dicta to like effect at 337 of Mason CJ's reasons for judgment in Bond . 49 The applicants submitted, in my opinion correctly, that the particular statutory framework addressed in Carter featured a 'staged process of decision-making' whereby before making the ultimate decision of imposing a temporary declaration of preservation , the Minister may make a decision to proceed with such a determination on his or her own motion, such a decision being clearly 'a step along the way'. By contrast the present legislation (ie the Radiocommunications Act ) features no such stepped or staged decision-making, the power to make the ultimate or operative decision being conferred in its terms by s 111 and relevantly, s 111(1)(c). On that basis at least, Carter is distinguishable from the present case. 58 It will have been appreciated from observations that I have made in the course of my outline of these reasons for judgment that I would reject the contention of the Authority that its decision-making of 30 June 2005 merely constituted a withholding from consideration of a request of either or both of the applicants to change the site condition of the 1620 licence, whether pursuant to an exercise of a discretionary function or power generally or at large on the Authority's part, or otherwise, and in particular whether by way of exercise of a discretionary power conferred under s 111 of the Act, or otherwise. The applicants, or at least WAL on behalf of both of them, in substance and in reality, applied unambiguously to the Authority on 6 August 2004 to change the site condition for the subject apparatus licence being a change which the Authority was empowered to implement pursuant to s 111 of the Act. A statutory decision-maker does not avoid the operation of the review provisions of the ADJR Act by purporting to create, whether explicitly or implicitly, a standpoint or position involving a decliner of entry upon statutory decision-making, or for that matter of consideration of decision-making unless the statutory scheme for decision-making so provides (cf Carter ). So much however is in reality the position or standpoint which the Authority has seemingly endeavoured to adopt and maintain.