In brief

The case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 concerned an application to the Land Court of Queensland brought by Waratah Coal Pty Ltd to strike-out objections made under the Mineral Resources Act 1989 (Qld) (MRA) or alternatively to obtain a declaration that the Court's jurisdiction did not extend to the consideration of objections made under the MRA and the Environmental Protection Act 1994 (Qld) (EPA) to the extent the objections relied upon the Human Rights Act 2019 (Qld) (HR Act). 

Waratah Coal Pty Ltd applied to the Minister for Natural Resources Mines and Energy for a mining lease and to the Chief Executive administering the EPA for an environmental authority to develop a thermal coal mine in the Galilee Basin (Applications). 

Youth Verdict Ltd, the Bumble Box Alliance Inc and others objected to the Applications on the ground, amongst others, that the grant of the Applications would not be compatible with section 58(1) of the HR Act. Section 58(1) of the HR Act relevantly provides as follows:

"It is unlawful for a public entity—

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision."

The Court found that the HR Act applies to it in fulfilling its function under the MRA and the EPA in making recommendations on the Applications because it is a public entity for the purpose of section 58(1) of the HR Act. Accordingly, the Court held it was satisfied it had jurisdiction to entertain the objections because it was required to comply with section 58(1) of the HR Act. 

The Court dismissed the application filed by Waratah Coal Pty Ltd. 

Court held it is a public entity under the HR Act 

The Court found, and Waratah Coal Pty Ltd conceded, that the Court is a public entity under the HR Act in fulfilling its function under the MRA and the EPA. 

The HR Act excludes certain entities as falling within the meaning of public entity. Relevantly, section 9(4)(b) of the HR Act states that a public entity does not include "a court or tribunal, except when acting in an administrative capacity". 

Section 10(1) of the HR Act relevantly states as follows:

"(1) In deciding whether a function of an entity is of a public nature for this Act, any of the following matters may be considered— 

(a) whether the function is conferred on the entity under a statutory provision."

In considering its function under the MRA and the EPA, the Court relevantly stated that where an objection has been made to an application for a mining lease under the MRA and to an application for an environmental authority under the EPA, the Court's function is to "hear the applications and the objections to them and, considering the statutory criteria, make a recommendation to the ultimate decision maker…" that the application for a mining lease be "granted or rejected in whole or in part, or … granted subject to conditions" and the application for an environmental authority be "granted, but on different conditions; or the application be refused" (see [10]-[11]). 

The Court found that in conducting the hearing the Court was performing the functions conferred on it by the MRA and the EPA. It was not disputed that the Court's function was administrative. 

Court held that the making of a recommendation by the Court is a 'decision' and an 'act' under the HR Act 

Waratah Coal Pty Ltd contended that the Court ought to interpret the word 'decision' in accord with Chief Justice Mason's (as his Honour then was) interpretation in the case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) . In Bond, his Honour construed 'decision' to mean "final, or operative and determinative" and not "merely a step taken in the course of reasoning on the way to the making of the decision". 

The Court considered the textual context of the word 'decision' in the Administrative Decisions (Judicial Review) Act 1977 (ADJR). Section 3(1) of the ADJR relevantly qualifies the word 'decision' as a decision of an administrative character made, proposed to be made or required to be made under enactment. The Court observed that in contrast, the absence of similar textual indications in the HR Act favoured a less restrictive interpretation of the word. 

The Court also observed that the "limited and prescribed consequences that attended the unlawfulness of an act or decision" under section 58(1) of the HR Act supported a generous interpretation of the word (see [45]). 

In noting the practical effect of interpreting 'decision' under the HR Act in accord with Bond, the Court relevantly stated as follows (see [53]):

"If the question of compatibility with human rights is beyond the Court's jurisdiction, the Minister and the Chief Executive of the statutory authority will not have the benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58.

The Court therefore held that 'decision' as it appears in the HR Act includes the Court's recommendation under the MRA and its objections decision under the EPA. 

Given the absence of textual and contextual factors, the Court also held that the word 'act' as it appears in the HR Act is broad enough to capture the act of making a recommendation. 

Court held it has jurisdiction to consider HR Act issues

Waratah Coal Pty Ltd contended that the Court lacked jurisdiction to hear the objections because there were no specific provisions under the MRA and the EPA in respect of human rights issues. 

The Court referred to section 108(1) of the HR Act, which applies the HR Act to "all Acts and statutory instruments, whether passed or made before or after the commencement" and held that whether or not an objector raises human rights based objections, the Court is required to consider human rights in deciding what recommendation to make on the Applications (see [72]). 

Court held section 59 of the HR Act is not applicable to the Court's hearing of the applications and objections

There is no standalone remedy for contravention of the HR Act. Section 59 of the HR Act, known as the piggyback provision, provides that a person may seek relief or remedy on the ground of unlawfulness arising under section 58 of the HR Act if the person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that that act or decision was, other than because of section 58, unlawful. 

Waratah Coal Pty Ltd contended that the unlawfulness under section 58 of the HR Act could not be raised absent any relief or remedy captured by section 59 of the HR Act. The objectors submitted, and the Court agreed, that the objectors did not rely on and were not constrained by section 59 which applies to a proceeding and not when the Court is performing its function under a recommendatory provision. 

The Court held that it was not being asked to review the validity of an act or decision made by a public entity; it was "being invited to conclude that it should not recommend the grant of the Applications because, to do so, would not be compatible with human rights and would therefore be unlawful" (at [85]).

Court held that standing was not an issue that it should address 

Waratah Coal Pty Ltd contended that the objectors, as corporate entities, did not have standing to seek relief or remedy for the unlawfulness of an act or decision under the HR Act.

The Court observed that if section 58(1) of the HR Act applies to the Court in its administrative function "there need be no mover to raise human rights issues, because that section requires the Court to properly consider engaged human rights and to not act or make a decision that is not compatible with human rights" (see [90]). Accordingly, the Court held that if standing is in contest it is appropriate for that question to be determined in the proper forum. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

Related Articles