President’s Message

The law as a tool to drive action on climate change

REBECCA SANDFORD, PRESIDENT

Growing up, one of my favourite poems was Dorothea Mackellar’s “My Country”. It is undeniably true that we live in a “sunburnt country”, full of beauty and terror (the latter especially so if you are, like me, an arachnophobe!) - but it’s also becoming hard to ignore that the “droughts and flooding rains” that sweep across this “wide brown land” now do so with increasing severity and frequency. Our horrendous bushfire season in 2020 was a clear signal that climate change is an issue significantly affecting Australia, which it seems is only going to get worse - and to be frank, time is running out for us to address it.

Recent reports1 indicate it is almost certain that average global temperature rise over the next century will exceed 1.5C, and that this may even occur as soon as the 2030s. Focus is now shifting to trying to keep the rate of temperature rise this century to less than 2C, but Australia is being left behind when it comes to cutting greenhouse gas emissions, and in some quarters we are now regarded as the “global laggard” of developed countries in this respect - meaning we have further to go to even catch up, let alone lead, in this area. Quite apart from our global reputation, increased warming will specifically and seriously impact Australia, which is more susceptible to certain climate change impacts than other places in the world; already, at an average global temperature rise of 1.1C, we have experienced increased megafires, more powerful storms and increasingly severe droughts and heatwaves. Current research suggests that should global warming reach 3C (an outcome which looks increasingly possible even if serious action on climate change is taken now), we can expect far more megafires, over 250,000 Australian properties at risk of inundation from the rising of our “jewel-sea”, the death of the Great Barrier Reef, increasing tropical diseases in southern cities and skyrocketing rates of death from heat stress. And that’s the optimistic position…!

Of course, whilst Australia has particular vulnerabilities to bear in mind, the issue is a global one affecting everyone on the planet. From a legal perspective, concerned citizens are taking increasingly creative steps to ensure governments take the issue seriously - in Ireland, for example, environmental advocacy group ‘Friends of the Irish Environment’ (FIE) recently won a climate change lawsuit (known as Climate Case Ireland) against the Irish Government. The case alleged that Ireland had failed to take “adequate action” on climate change, and sought to hold the government accountable “for its role in knowingly contributing to dangerous levels of climate change” and failing to meet targets set in its National Mitigation Plan. It was the first case of its kind in Ireland and only the second in the world where a court held a government accountable to its greenhouse gas emissions targets, and as a result, the Irish government is now revising its national climate policy. In doing so, it could look to its neighbour Scotland, which has some of the most ambitious climate targets in the world after the Scottish parliament passed the Climate Change Bill in 2019, setting out a legally binding target of reaching net-zero emissions by 2045. Scottish ministers have committed to a target of at least 50% of energy demand for electricity, heat and transport across the country to be met by renewable energy generation by 2030. Though ambitious, this nonetheless seems achievable given that Scotland met 90.1% of its equivalent electricity consumption from renewables in 2019.

Coming back home to our own “wilful, lavish land”, in mid-2020 Katta O’Donnell followed in FIE’s footsteps and is now leading a Federal Court class action against the Australian Federal Government, asserting that investors trading in Australian government bonds face material risks from climate change which have not been disclosed by the Government, meaning it has breached its duty of disclosure and misled and deceived investors. The case is ongoing, but is the first of its kind in Australia, and certainly one to watch.

Though Australia currently has a goal to reduce greenhouse gas emissions to 26–28 per cent below 2005 levels by 2030 and to achieve net zero emissions “preferably by 2050”, the rate of change to achieve this goal is slow and increasingly likely to be insufficient, given emissions have actually risen in Australia over the last 10 years. Comparatively, the US, UK and many European countries have reduced emissions over the last decade, and have publicly committed to much bolder targets going forward. Business is in many sectors moving ahead with net zero targets irrespective of government stances, and it is becoming progressively more likely that countries which are prioritising this issue will factor climate policies into trade arrangements into the future.

The Law Council has “climate change” as one of its strategic policy focus areas for 2021, and has a working group which is currently considering the legal implications of climate change and developing a Law Council policy position about them. I’m closely following developments in this area - ultimately, legislation and regulation will be what drives change, and the role of lawyers in developing that framework is more critical than ever. Our “opal-hearted country” is far too precious for us to simply stand by. B

Endnotes 1 Climate Council of Australia, Aim High, Go

Fast: Why Emissions Need to Plummet This

Decade, (Report, 2021)

What is the role of climate change policy under the Planning, Development and Infrastructure Act and how relevant is it in determining development applications?

PAUL LEADBETER, ADJUNCT SENIOR LECTURER, ADELAIDE LAW SCHOOL, DAVID COLE ENVIRONMENTAL LAWYER, MICHAEL DOHERTY PLANNING AND ENVIRONMENTAL LAWYER

South Australia has implemented a major change in its system of land use planning regulation and policy with the replacement of the Development Act 1993 by the Planning, Development and Infrastructure Act, 2016 (PDI Act).

The PDI Act commenced, in part, in March 2017. Following the gazettal of Phase 3 of the Planning and Design Code on 19 March 2021 the Act is in operation throughout South Australia.

The purpose of the Act is to regulate the use, development and management of land and buildings in South Australia.1 The objects of the Act are set out in detail in section 12 and include supporting and enhancing “the State’s liveability and prosperity in ways that are ecologically sustainable”.

The Act establishes the State Planning Commission (SPC) which is “the State’s principal planning advisory and development assessment body”.2 In the latter respect, the Commission has established the State Commission Assessment Panel (SCAP) under the Act to undertake that assessment function.3

Community participation in the preparation of statutory instruments under the Act (including State Planning Policies (SPPs) and the Planning and Design Code (the Code) is facilitated by the preparation and maintenance of the Community Engagement Charter.4

The Code is the principal document that must be taken into account by relevant authorities when determining development applications under the Act.5 SPPs establish planning direction for the State and also inform the content of the Code.

Relevant authorities established under the Act are responsible for assessing development applications with respect to specified classes of development. Relevant authorities comprise assessment panels, assessment managers and accredited professionals. In some instances, the Minister is the relevant authority.6

Categories of Development are specified by the Act as follows: • Accepted development (s 104); • Code Assessed Development which is further categorised as “deemedto-satisfy” assessment (s 106) or

“performance assessed development” (s 107); and • Impact assessed development (see

Subdivision 4).

Accepted development requires no planning consent. Code assessed development is subject to an assessment for that class of development against the relevant Code provisions. Performance assessed development and impact assessed development require assessment on the merits against the requirements of the Code.

HOW WILL CLIMATE CHANGE AFFECT SOUTH AUSTRALIA?

It is now generally accepted that climate change is occurring and that if the current trend continues there are serious implications for the southern part of the Australian continent, particularly South Australia. The most recent State of the Environment Report for South Australia7 has noted that climate change will result in a significant decline in annual and spring rainfall across the state by 2050, and a projection of higher maximum temperatures and more days above 40 degrees each year. Sea Levels are rising and are projected to continue to do so.

The Report notes that the Paris Agreement on Climate Change8 seeks to limit average global temperature rise to below 2 degrees above pre-industrial levels. A rise above that will have ‘dangerous and potentially irreversible impacts for humans and ecosystems’9. Furthermore, if immediate action is not taken to contain and reduce greenhouse gas emissions by 2060-70 temperature rises of 3-4 degrees are likely. If there is an average global warming of 4 degrees, the consequences for Australian cities and the Australian environment will be significant and their management extremely challenging and costly.

The South Australian Government has recently adopted an ambitious climate change mitigation target of reducing GHG emissions by more than 50% below 2005 levels by 2030 and achieving net zero emissions by 2050. It has also announced a plan to transition to 100%-net renewable energy. Meeting such targets will require significant efforts across various sectors and policy areas within the next decade.

There are two key strategies that address global warming, namely ’mitigation’, which involves actions to reduce the overall volume of emissions, and ‘adaptation’, which necessitates an acceptance that the climate will change and the implementing of strategies to prepare for and minimise the impact of the inevitable changes. The land use planning system is important for implementing both strategies.

WHY IS IT IMPORTANT TO CONSIDER THE IMPACTS OF CLIMATE CHANGE IN DEVELOPMENT ASSESSMENT PROCESSES?

Planning law and policy responses are needed in a range of areas to address climate related issues such as sea level rise and coastal hazards, bushfire hazards, heatwaves, intense rainfall and storm events and the consequential flooding and associated destruction, the reduction in the quality and quantity of water supply and increased vector activity from mosquitoes and the resulting spread of disease.

How might land use planning policy and development assessment assist in addressing some of the climate change related issues

South Australia will experience? Land use planning responses might include: • Changes to land zoning and policy requirements and directives • More climate sensitive building and design standards10 • Restrictions on minimum ground levels for buildings and other development in low lying flood prone areas • Restrictions and specifications for development in bushfire prone areas11 • The prohibiting of development in certain areas such as those where land is flood prone, a bushfire hazard area or a coastal strip likely to be subject to inundation from higher tides or during storm events because of increases in sea level. • The facilitation of greener transport options12 • A focus on reducing the urban heat effect through design and vegetation • A general emphasis on sustainability measures

In the case of urban development, addressing climate change is urgent in two fundamental respects. First, as mentioned above, the State Government has adopted GHG emission targets to be achieved in the relatively near future. Second, hardly any of the currently constructed 70% of the 2050 city is carbon neutral. An enormous amount of effort is required over the next thirty years to retrofit and adapt these already existing infrastructure and buildings so that they become carbon neutral by 2050.

Under the Development Act there was support in some Council development plans to justify having regard to climate change impacts when undertaking an assessment of a development proposal, particularly re coastal development13 A ministerial amendment was also made to all development plans to facilitate and promote wind farm development across the state making it almost impossible for third party challenges to such proposals14 . There was no direct reference to climate change in the Development Act itself.

Notwithstanding the paucity of references to climate change in Australian planning legislation, climate change has nevertheless been a factor previously considered as a relevant consideration in a number of development assessment processes across Australia. These have included development proposals for coal mines(NSW)15 , a coal fired boiler(SA)16 and coastal land divisions(SA and Victoria)17 .

While there is climate change policy being developed at various levels of the State Government there appears to be a lack of coordination and synchronicity in some areas. In 2013 the Premiers Climate Change Council (PCCC) published ’South Australia’s climate change vision-Pathways to 2050’18. Recommendation 7 of that report seeks to ‘ensure that consideration of climate change is integrated into the South Australian land-use planning system by embedding climate change into the Objects of the relevant Act.’19 That object has not been directly achieved with the PDI Act as will be shown below. A similar situation appears to exist with the State Government’s Climate Action Plan 2021-2025, released in 2020.20 There are references in the Action Plan to the planning regulatory and policy system but there is little apparent evidence of actual coordination with those responsible for drafting the new planning legislation and key policy documents.

WHAT DOES THE PLANNING, DEVELOPMENT AND INFRASTRUCTURE ACT 2016 SAY ABOUT CLIMATE CHANGE?

The Act

Disappointingly, given its recent initiation, the well understood implications of climate change for the State of South Australia and the recommendations of the Climate Change Vision report21, the PDI Act contains no direct and substantive criteria in the Act or its objects clause requiring that climate change be addressed in policy formulation or the determination of development proposals. It does, however, contain a machinery provision requiring the preparation by the Minister of a State Planning Policy on Climate Change (see below).

Objectives

The significance of climate change is implicit in the objects of the Act22. Section 12(1) states that ‘the primary object of this Act is to support and enhance the State’s liveability (sic) and prosperity in ways that are ecologically sustainable’. Given that climate change is a consequence of unsustainable land use, that object justifies putting climate change measures in planning policy and requiring that they be considered as part of the development assessment process.

This argument is supported by the Act’s “Principles of Good Planning’ which are intended to assist in furthering the objects of the Act. These Principles emphasise that cities and towns being should be planned, designed and developed so as to be sustainable23 and that ‘particular effort should be focused on achieving energy efficient urban environments that address the implications of climate change24 .

The objects of the Act also require cooperation, collaboration and policy integration between state and local government bodies25 which arguably with respect to climate change, has not occurred as effectively as it might, given the disparity between the planning legislation and policy and the State’s climate change policies.

The Act imposes a mandatory requirement on those involved in “the administration of this Act” (which would include policy makers and those responsible for making development assessment decisions) to further the Act’s objects26. If, as noted above, sustainability is an object of the Act, then policy and decision makers must have regard to it as a means of achieving sustainable development and thus consideration of the climate change impacts of a proposal should be taken into account.

The Role of the Code

Development assessment decisions under the PDI Act must be made by assessing a proposal against the Code27 . Therefore, if there is to be consideration of climate change as a relevant factor in development assessment, there must be policies within the Code which make it a relevant consideration. Under the Act, the Code is the key development assessment policy. Above it sits the SPPs which cannot be taken into account for purposes of any development assessment28 but are to be given effect through other instruments, particularly the Code.29

State Planning Policy 5

As noted above, Section 62 of the Act requires that Minister ensure there is a specific Climate Change SPP specifying policies and principles that are to be applied with respect to minimizing adverse effects of decisions made under the Act on the climate and promoting development that is resilient to climate change. Accordingly, ‘State Planning Policy 5: Climate Change’ (SPP 5) has been developed with the objective of providing for development that is ‘climate ready’ so that the economy, community and environment will be resilient to climate change impacts30. SPP 5 is a four-page document comprising the topic headings Purpose, Objective, Policies, Principles for Statutory Instruments and Related State Planning Policies.

There is only one objective in the Policy and it refers to adaptation, not mitigation, yet s62 of the Act contemplates that there would be mitigation strategies as well. However, the policies under the Objective actually contain a mix of mitigation and adaptation strategies.

THE PLANNING AND DESIGN CODE

Given that development proposals must be assessed against it, the Code is the means by which SPPs are to be given effect. Therefore, it is imperative that the Code reflects the objectives, principles and policies of SPP 5 to ensure that climate change is a relevant and important consideration in the development assessment process.

The Principles for Statutory Instruments in SPP 5 include the following for the purposes of the Planning and Design Code: • ‘The Planning and Design Code

should include a range of overlays that identify both the hazards that need to be considered when proposing new development and the features that should be protected due to their contribution to climate resilience, e.g. coastal dunes and natural environments that store carbon. • Policies should allow for innovative adaptation technologies; promote climate-resilient buildings; improve the public realm; and identify areas suitable for green industries and carbon storage’

Section s66(3)(f) of the Act provides that the Code must comply with any principle prescribed by an SPP. The wording of s66(3)(f) is mandatory, adopting the term ‘must’ whereas the principle quoted above uses the word ‘should’, arguably lessening its strength. Does the principle in SPP 5 meet the statutory requirements of the Act? The Minister must ensure that an SPP on climate change is prepared but whether the mandatory obligations extend to the terms of the policy itself is uncertain.

What is clear is that development proposals must be assessed essentially against the Code and that the Code is the main means by which the Principles in SPPs are to be given effect. It is imperative, therefore, not only that the Code should reflect the Principles included in SPP 5 but that the Principles themselves are sufficiently detailed and clear that they can be meaningfully reflected in the Code thus ensuring that climate change is a relevant consideration in the assessment of a development proposal. In this respect SPP 5 is deficient.

If the Code31 is required to be the means by which climate change policies and principles in SPP 5 are to be implemented, what do the provisions in the Code currently provide regarding climate change? The specific words, “climate change” are only used nine times in the Code32. There is no general development policy for climate change nor any statement of desired outcomes for climate change mitigation and adaptation. Climate change is addressed implicitly in various Overlays particularly the Hazards Overlays (bushfire and flooding) and the Water Protection Overlay. This is important but does not represent a comprehensive set of provisions in the Code directed to ensuring that climate change mitigation and adaptation is considered in the widest possible range of developmental circumstances and in a way that is meaningfully directed to achieving a climate-sensitive environment.

Where inconsistencies exist in the Code a hierarchy exists for addressing them.33 Overlays prevail over all other policies, Subzones prevail over Zone policy or general development policy and a zone policy prevails over a general development policy. This setting of priorities argues for careful consideration of where climate change provisions are to be included in the Code.

WHERE THERE IS CLIMATE CHANGE RELATED POLICY WITHIN THE PLANNING AND DESIGN CODE, TO WHAT EXTENT CAN THAT POLICY BE TAKEN INTO ACCOUNT IN THE DEVELOPMENT ASSESSMENT PROCESS?

Any climate policy which is part of the Code has to be one of the matters against which development is assessed.34 However, if previous authority is followed, in the absence of any statutory direction to the contrary, climate related matters are just one of a range of factors to be considered in the assessment process. A planning assessment is a ‘balancing process’ in which the planning authority must weigh up the factors both for and against a proposal when making its planning judgment35. Unless the legislation or Code specifies otherwise climate change issues will not be given any greater weight than any other factors. Many would argue that, given the dire predictions of the impacts of climate change, it perhaps should be given more weight than other factors in the development assessment process.

The ‘planning balance’ approach is relevant largely to Performance and Impact Assessed development where a determination is made on the merits. Accepted development and Deemed-to- Satisfy development are less likely to include climate related criteria. However, concerns exist as to how the cumulative climate change impact of allowing many relatively minor forms of development to be treated and assessed as Accepted and Deemedto-Satisfy development (meaning planning consent must be granted) is to be addressed. Should there be some form of climate related approval criteria included in the Accepted and Deemed-to-Satisfy tables?

WHERE COULD THERE BE IMPROVEMENTS?

Climate Change Action Plan 2021-202536 is a government document prepared with input from the Premier’s Climate Change Council and also economist Professor Ross Garnaut37. It describes government led objectives and actions to help build ‘a strong, climate smart economy, further reduce greenhouse gas emissions and support South Australia to adapt to a changing climate’. It sets out seven Focus Areas under which are set out Key Objectives. Focus Area 5 dealing with ‘Climate Smart built and urban environments’ sets out three key objectives, namely: • Provide for development that is low emissions and climate resilient • Accelerate strategic urban greening • Understand and reduce climate change risks to infrastructure

The Climate Change Action Plan refers to the South Australian planning system and recognises the importance of using it to implement climate smart practices but considerably more could be done in the Code to implement these actions. As things presently stand there seems to be sigificant disconnect between the Climate Change Action Plan and the Code. Greater cooperation between the entities responsible for the two areas is needed. The Code does indeed have in place a number of policies that can be seen to be relevant to implementing Climate Change strategies but more could done.

Improvements to the machinery that drives the land use planning system in South Australia could include the following:

Revision of SPP 5: Climate Change to ensure that it addresses climate change mitigation as well as adaptation;

An elaboration of the Principles for Statutory Instruments in SPP 5 as they relate to the Planning and Design Code so that they provide greater direction to policy makers and facilitate the meaningful inclusion of climate change provisions in the Code;

The use of the mandatory term “must” in the relevant Principles in SPP 5 to provide consistency between the intention of section 62 of the Act, the SPP and the Code;

The inclusion of clearly identified and comprehensive climate change assessment provisions in the Code including Desired Outcomes that reference the need for carbon neutrality across all zones;

The issuing of a practice direction (a procedural tool) or the use of other relevant statutory machinery that assigns an appropriate weighting and priority to the application of climate change provisions in the development assessment process.

FINAL OBSERVATIONS

Climate change issues, particularly those related to bushfires, water supply and use and the energy efficiency of buildings, are relevant development assessment factors under the Planning and Design Code. There is, however, no real guidance in the Code or the legislation as to the weight that should be given to climate change issues in the development approval process. It is just one of a number of considerations to which the planning authority must have regard.

The predicted impacts of climate change on South Australia are highly significant. It is of prime importance that the State implements measures to try and minimize those impacts on South Australia’s environment, infrastructure and its society.

Climate change issues must become a priority issue in policy formulation and in development assessment and determination. Greater coordination and cooperation is required between planning authorities and other government agencies responsible for addressing the State’s climate change strategy. In particular the State Planning Commission and the Premier’s Climate Change Council need to coordinate and synchronise their response strategies to the concerns about climate change and its predicted impacts for South Australia. B

Endnotes 1 PDI Act, long title. 2 Ibid, s 22(1). 3 Ibid, s 29. 4 Ibid, s 44. 5 Ibid, s 102. 6 Ibid, s 95. 7 Government of South Australia, Environment

Protection Authority ,7th State of the Environment report for South Australia,2018 http://www.epa. sa.gov.au/soe-2018 8 The Paris Agreement on Climate Change, FCCC/

CP/2015/10/Add.1, November 2015, https:// unfccc.int/process-and-meetings/the-parisagreement/the-paris-agreement 9 Government of South Australia, n.7 Key Messages 10 E.g. Building placement on site, window and room orientation, materials of construction, insulation requirements etc. Some of these matters are more a matter of requirements under the building rules and National Construction Code but can be driven through appropriate planning policies also. 11 E.g. sometimes built development may be excluded altogether in very hazardous areas. 12 Such as tramways, light rail, cycle pathways, and other mass transit options 13 E.g. the District Council of Yorke Peninsula had an extensive set of policies in its Development

Plan https://www.dit.sa.gov.au/__data/assets/ pdf_file/0015/250026/Yorke_Peninsula_Council_

Development_Plan.pdf designed to ensure that new development along coastal areas was sufficiently set back to provide for a buffer against the anticipated effects of coastal land inundation by rising sea water over the next 100 years. This

Plan has now been replaced by the Planning and

Design Code under the new legislation. 14 Statewide Wind Farms DPA (Minister of Planning) 18

October 2012 15 Gray v The Minister for Planning and Others (2006) 152

LGERA 258 16 Thornton v Adelaide Hills Council (2006) 151 LGERA 1 17 Northcape Properties v District Council of Yorke

Peninsula [2008] SASC 57, Gippsland Coastal Board v

South Gippsland Shire Council [2008] VCAT 1545 18 Government of South Australia, Premier’s Climate

Change Council,2013. Can be found at: https:// www.environment.sa.gov.au/files/sharedassets/ public/climate-change/sa-climate-change-visionpathways-to-2050.pdf 19 Govt of South Australia, Premiers Climate Change

Council,n18, p.24 20 Government of South Australia, Climate Action

Plan 2021-2025 https://www.environment.sa.gov. au/news-hub/news/articles/2020/12/climatechange-action-plan 21 Govt of South Australia, n18, Recommendation 7 on page 24. 22 PDI Act, s 12. 23 PDI Act, s14(e)(i) Note that there is no definition in the Act of ecological sustainability- unlike in the

Environment Protection Act 1993-that of itself leaves issues as to what is encompassed in the term open to debate. 24 PDI Act, s14(e)(ii) 25 PDI Act, s12(1)(g). This means the Minister and

State Planning Commission , State Climate Change

Council, all government departments and local councils should all liaise cooperate and coordinate whenever developing climate change related policies. 26 PDI Act, s13 27 PDI Act, s102(1)(a) 28 PDI Act, s58(4) 29 PDI Act, s58(2) 30 State Planning Policy 5: Climate Change see: https://plan.sa.gov.au/__data/assets/pdf_ file/0005/552884/State_Planning_Policies_for_

South_Australia_-_23_May_2019.pdf 31 The Code is an online document designed to be used in that format with a wide range of interactive tools. It came fully into operation on 19 March 2021. It can be accessed from here: https://code.plan.sa.gov.au/ It applies across the whole state doing away with the previous set of 72 separate development plans applying to individual council areas which applied under the

Development Act,1993. 32 The specific references to climate change occur principally in relation to bushfire risk, Ramsar

Wetlands and water resource protection. 33 Planning and Design Code Part 1, Clause 4 34 PDI Act,s102(1) 35 City of Mitcham v Freckman[1999] SASC 234 36 Government of South Australia, n20 ,p.36 37 Professor Ross Garnaut is the author of the major

Garnaut Climate Change Review commissioned by the Federal Government and released in

September 2008.

“We are fighting to maintain and preserve what we have left”: Onus v Minister for the Environment and Aboriginal cultural heritage protection

SOPHIE HOWE, ASSOCIATE, LIPMAN KARAS

In the wake of the destruction of the 46,000 year old caves at Juukan Gorge, the recent case of Onus v Minister for the Environment [2020] FCA 1807 highlights the roles played by the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Act’) and judicial review in protecting Aboriginal cultural heritage.

Facts

Two traditional owners of Djab Wurrung Country applied for judicial review of the Environment Minister’s 6 August 2020 decision not to make declarations under ss 10 and 12 of the Act. The decision related to applications by nine traditional owners for declarations to protect and preserve from injury or desecration a significant Aboriginal area and significant Aboriginal objects. The Applicants were concerned with the effect on the area and trees by the construction of a section of the Western Highway between Ararat and Buangor in Victoria.

Relevant Provisions

The Minister may make a declaration under s 12 if they are satisfied that the objects (in this case Trees E1-E6) are significant Aboriginal heritage objects and are under threat of injury or desecration, have considered the declaration’s effects on the pecuniary interests of third parties, and have considered such other matters as they think relevant. The Minister may make a declaration under s 10 if they are satisfied that the Specified Area (in this case the “Maximum Construction Footprint”) is a significant Aboriginal area and is under threat of injury or desecration, have received and considered a report under s 10(4), and have considered such other matters as they think relevant.

Procedural History

On 17 June 2018, an application was made to the then Minister (Josh Frydenberg) seeking declarations under ss 9, 10, and 12. A reporter was appointed and provided a report on 13 September 2018 (‘Philips Report’). On 12 September 2018, the then Minister (Melissa Price) refused to make the s 9 declaration, and on 19 December 2018 refused to make the ss 10 and 12 declarations. This decision was quashed by consent and remitted to the Minister for redetermination.1 On 16 July 2019, the current Minister (Sussan Ley) refused to make the ss 10 and 12 declarations. This decision was quashed by Robertson J and the Minister was again directed to redetermine the matter.2 On 6 August 2020, the Minister again refused to make the ss 10 and 12 declarations. This was the third time the application had been refused.

The 6 August 2020 Decision3

The Minister was not satisfied that Tree E1 is a significant Aboriginal object. Whilst the Minister was satisfied that Trees E2-E6 are significant Aboriginal objects, based upon Major Road Projects Victoria’s 29 May 2019 commitment that Trees E2-E6 were not at risk of injury or desecration (‘MRPV’s Commitment’), the Minister was not satisfied that Trees E2-E6 are under threat of injury or desecration.

Whilst the Minister was satisfied that the Specified Area is a significant Aboriginal area and that it is under threat of injury or desecration, the Minister considered other factors relevant under s 10(1)(d), namely the effects of pecuniary interests of third parties (the Victorian Government if construction was delayed), that community road safety would benefit from the upgrade, and the extent that the area is protected under State legislation, and concluded that the considerations against making a declaration outweighed those in favour.

Appeal Determination

Griffiths J held that the Minister’s decision not to make a s 12 declaration should be set aside, and that the application insofar as it relates to s 12 be remitted to the Minister with a direction to refer the application to another Minister with responsibility for administering the Act for reconsideration and determination according to law.4 Griffiths J dismissed the Applicants’ challenge to the Minister’s refusal to make a s 10 declaration.5 In reaching these conclusions, Griffiths J considered the following grounds of review:

1: Failure to commission and receive a report under s 10(1)(c) of the Act relating to the application

The Applicants claimed that whilst the Philips Report was a valid report when provided to the then Minister in 2018, the current Minister put it aside in light of the MRPV’s Commitment in 2019.6 Thus the Phillips Report was no longer relevant

and ceased to be valid under s 10(1)(c).7 Griffiths J rejected this claim, holding that responses were provided subsequent to the Phillips Report, that the Minister consulted with various persons albeit unsuccessfully, that the legislation is silent on whether the Minister can direct the reporter to provide an updated report, and that s 10’s terms indicate that a report deals with the matters at the time of provision to the Minister.8

2: Unreasonable failure to exercise the power to obtain an up-to-date report

Alternatively to ground 1, the Applicants claimed that even if the Phillips Report constituted a report per s 10(4), it was unreasonable for the Minister not to have obtained an updated report.9 Griffiths J rejected this claim, determining the Act did not require the Minister to obtain an updated report,10 and that even if so, the Minister’s failure was not unreasonable having regard to the matters relied upon in rejecting ground 1.11

3: Error in the treatment of the MRPV draft Framework

The Applicants claimed the Minister’s assessment of the MRPV Commitment was flawed in its reasoning because the Minister treated the non-removal of Trees E2-E6 as entirely removing the threat of injury or desecration without appreciating that Trees E2-E6’s significance extended more broadly.12 Griffiths J held that the Minister’s state of satisfaction as to whether Trees E2-E6 are significant Aboriginal objects and are under threat of injury or desecration was attained unreasonably and/or without a correct understanding of the law.13 Section 12 requires the Minister to be satisfied whether the trees would likely be used or treated in a manner inconsistent with Aboriginal tradition, even if the trees were not destroyed.14 The Minister erred because material before her clearly described how the trees were under threat of injury or discretion with reference to Aboriginal tradition,15 there were no materials or maps before her which identified the physical proximity of the highway to the trees, and she failed to appreciate that the trees’ cultural significance extended to the area beyond the Specified Area.16 Griffiths J held that it was unnecessary to resolve the grounds 4-6 due to the Applicant’s success in ground 3, and indicated such grounds would be rejected:17

4: Failure to take into account relevant considerations, namely submissions

The Applicants claimed the Minister should not have dismissed representations regarding biodiversity and conservation issues as irrelevant.18 This would be rejected as the Minister is not required to consider representations not relevant to the Minister’s statutory task (deciding whether to make a declaration).19

5: Erroneous finding that an alternative route would have similar Aboriginal heritage protection issues

The Applicants claimed that based on the information before the Minister, it was not rationally open for her to find no evidence that an alternative route would not have similar impacts on Aboriginal cultural heritage.20 This would be rejected as the Minister’s finding of “no evidence” was a peripheral comment which was not a finding of fact but an identification of a possibility and does not attract a “no evidence” ground of review.21

6: Error in the treatment of cost estimates

The Applicants claimed the Minister’s conclusion that declarations would significantly detrimentally impact the Victorian Government’s pecuniary interests took into account irrelevant considerations by being based upon a costs estimate for an alternative route that was by then not possible.22 This would be rejected as the Minister did not make any findings about an alternative route’s construction costs, and her findings were instead based on assessment, termination, and wasted planning costs.23

CONCLUSION

Reforming the Act was recommended in a 1996 independent review which noted that “Aboriginal people are critical of the Act because the power to protect areas and objects is discretionary. The Minister is not obliged to act, even if an area is of significance to Aboriginal people”.24 Reforms were discussed again in a 2009 Government discussion paper which noted the Act “has not proven to be an effective means of protecting traditional areas and objects. Few declarations have been made: 93 per cent of approximately 320 valid applications received since the Act commenced in 1984 have not resulted in declarations”.25 As recently as December 2020, the Act was described as “virtually moribund” in Parliament’s Never Again interim report.26 Never Again recommended that ministerial responsibility for the administration of the Act “revert to the Minister for Indigenous Australians”, and that the Australian Government “urgently review the adequacy” of the Act.27 It is notable that Griffiths J commented similarly in Onus that “[s]trangely, the Minister for Aboriginal Affairs is not one of the Ministers with responsibility for administering the Act, despite its subject matter”.28 With the decision in Onus having been remitted now for the third time, it is perhaps more pertinent than ever to review the Act’s effectiveness and adopt appropriate reforms to ensure the protection of Aboriginal cultural heritage into the future. B

Endnotes 1 Quashed by the Court’s orders dated 12 April 2019 in VID 168 of 2019. See Onus (n 1) 5-6 [11]. 2 Clark v Minister for the Environment [2019] FCA 2027 (‘Clark’). See Onus (n 1) 6 [12]. 3 See Onus (n 1) 6-10 [17]. 4 Order of Griffiths J in Onus v Minister for the

Environment (Federal Court of Australia, VID 599 of 2020, 17 December 2020). 5 Onus (n 1) 3 [5]. 6 Ibid 13 [20]. 7 Ibid 28 [79]. 8 Ibid 29 [80]-[82]. 9 Ibid 14 [25]. 10 Ibid 30 [85]. 11 Ibid 29-30 [84]. 12 Ibid 14-15 [27]-[28]. 13 Ibid 31 [92]. 14 Ibid 37-39 [103]-[106]. As identified by

Robertson J in Clark (n 3) at 48-50 [146]-[151]. 15 Onus (n 1) 40-41 [115]. 16 Ibid 39 [107]. 17 Ibid 47-48 [144]-[147], 48-49 [148]-[151], & 49-50 [152]-[156]. 18 Ibid 16-17 [34]. 19 Ibid 47-48 [144]-[147]. 20 Ibid 10-12 [18]. 21 Ibid 49 [151]. 22 Ibid 10-12 [18] & 18-19 [41]-[43]. 23 Ibid 49-50 [155]-[156]. 24 Elizabeth Evatt, Review of the Aboriginal and Torres

Strait Islander Heritage Protection Act 1984 (Report

No 170, 1996) 15 [2.33] (citations omitted). See also Wamba Wamba Local Aboriginal Land Council v

Minister Administering the Aboriginal and Torres Strait

Islander Heritage Protection Act 1984 (1989) 86 ALR 161, 170. Further, in Onus (n 1) 27 [74], Griffiths

J noted that the Minister has ultimate discretion and that this is reflected by the use of the word

“may” in ss 10 and 12. 25 Department of Environment, Water, Heritage and the Arts (Cth), Indigenous Heritage Law Reform (Discussion Paper, August 2009) 4. 26 Joint Standing Committee on Northern Australia,

Parliament of Australia, Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan

Gorge in the Pilbara region of Western Australia (Interim Report, December 2020) vii. 27 Ibid xix [1.64] & [1.66]. 28 Onus (n 1) 50 [158].