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Editors --- "Chapman and Others v. Tickner, Saunders and Others; Barton and Knott v. Tickner, Saunders and Others - Case Summary" [1996] AUIndigLawRpr 10; (1996) 1(1) Australian Indigenous Law Reporter 31

Chapman And Others V. Tickner, Saunders And Others; Barton And Knott V. Tickner, Saunders And Others

Federal Court of Australia (O'Loughlin J)

15 February 1995, Adelaide

Aborigines -- Proposal to construct a bridge to Hindmarsh Island -- Aboriginal claim that the bridge would damage a significant area -- Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) -- Section 10 declaration -- Application for review under Administrative Decisions (Judicial Review) Act 1977 (Cth) -- Whether the reporter under s. 10 had given adequate notice to members of the public -- Whether the minister had given consideration to representations attached to the report.

The applicants had sought approval to build a bridge at Goolwa, South Australia, to connect the mainland to Hindmarsh Island (Kumarangk) where they had a number of residential and other developments. The State Government decided that the bridge would be built. Aboriginal people sought an order by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs under s. 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and disclosed information, not previously notified, that the area had important spiritual and cultural significance for Ngarrindjeri women, which would be threatened by construction of the bridge. The Minister made a s. 9 declaration to protect the area and subsequently extended it for a further thirty day period. He also commissioned S. to prepare a report for the purposes of s. 10(4) of the Act. S. caused a notice to be published inviting interested persons to make representations. She also visited Adelaide and Goolwa to allow interested parties to speak to her personally.

S. sent the Minister her report and attachments, including sealed envelopes marked to denote that the contents were to be read only by women. The Minister did not read the material in the sealed envelopes but had a woman member of his staff do so. He made a declaration to protect the area for twenty-five years.

The applicants sought review of the Minister's declarations under the Administrative Decisions (Judicial Review) Act 1977 (Cth). S. was added as a respondent in respect of her report.

Held, quashing the Minister's s. 10 declaration:

(1) The published notice of the inquiry by S. gave insufficient particulars of the area in question and of the likely threat of injury or desecration, particularly the "women's business".

(2) The Minister failed to consider representations attached to the report as required by s. 10(1)(c).

The decision has been taken on appeal to the full Federal Court.