Federal Court of Australia

Cooper v Minister for Environment and Water [2025] FCA 1009

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have liberty to apply after 12 September 2025 for further relief in the event that the respondent has not by that date determined the applicant’s application pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) made on 9 February 2022.

2.    The proceeding be listed for case management on 19 September 2025.

3.    The respondent advise the Court when the determination referred to in order 1 has been made.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    Murujuga (Burrup Peninsula), of which the applicant, Ms Raelene Cooper, is a traditional custodian, is part of the Dampier Archipelago in the Pilbara region of Western Australia. The area contains one of the densest concentrations of rock engravings in Australia, with some sites comprising thousands or tens of thousands of images. The rock engravings comprise images of avian, marine and terrestrial fauna, schematised human figures, figures with mixed human and animal characteristics and geometric designs. Murujuga also contains a high density of stone arrangements, including standing stones, stone pits and more complex circular stone arrangements, which are exceptional by Australian standards.

2    On 9 February 2022, Ms Cooper, together with another traditional custodian, Ms Josie Alec, applied in writing to the respondent (the then Commonwealth Minister for the Environment but now the Minister for the Environment and Water) for, inter alia, a declaration pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) seeking the protection of Murujuga from injury and desecration, primarily arising from existing and future natural gas extraction by Woodside Energy Group Ltd, a proposed urea plant development by Perdaman Chemicals and Fertilisers Pty Ltd, and existing and future ammonia and hydrogen production by Yara Australia Pty Ltd and related companies. The injury and desecration are said in the application to relate to, among other things, the removal of sacred sites and rock engravings, degradation of rock engravings from industrial emissions and chemical discharge, inappropriate location of industrial developments, degradation of cultural heritage values from visual and noise pollution, loss of amenity and lighting impacts and restricting access to sacred sites.

3    More than three and a half years have now passed since the application was made, a time during which there have been two federal elections and three different Ministers for the Environment. Despite that passage of time, the Minister has not determined the s 10 application.

4    Ms Cooper contends that the Minister has a duty under the Act to determine the application and there has been unreasonable delay in doing so. Ms Cooper commenced this proceeding on 22 May 2025 seeking relief in her originating application in the following terms:

1.     A writ of mandamus under section 39B of the Judiciary Act 1903 (Cth), requiring the Respondent to determine according to law and as soon as reasonably practicable the Applicant’s application made pursuant to section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) on or around 9 February 2022 (the Application).

2.     Alternatively, an order under ss 7(1) and 16(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) directing the Respondent to determine the Application according to law and as soon as reasonably practicable.

3.     Costs.

5    The proceeding was initially listed for hearing on 17 July 2025. However, in early July, evidence and submissions filed by the Minister indicated that “a decision [was] expected on the s 10 application by September 2025”. On my invitation, the parties then agreed that the hearing be re-listed for 20 August 2025, with the Minister required to put on further evidence closer to that date showing what progress had been made on the s 10 application. That was done.

6    On the hearing of the application and based on the most recent affidavit evidence, Ms Cooper sought slightly different relief, namely that the Minister be compelled to make the decision on her s 10 application by 12 September 2025, or such other date as soon thereafter as the Court might deem appropriate.

7    By way of overview, the Minister’s position is as follows.

8    First, the Minister accepts that once a s 10 application is made, he has a duty to decide it, and to do so within a reasonable time.

9    Secondly, the Minister submits that when regard is had to the nature and complexity of the decision contemplated by ss 10, 11 and 13 of the Act, the procedural history of the application, and the competing responsibilities of the First Nations Heritage Protection Branch of the Department of Climate Change, Energy, the Environment and Water, there has not been unreasonable delay in making a decision on the s 10 application. He submits that the evidence discloses that the Department has progressed the s 10 application in a prudent, reasonable and fair manner that is consistent with affording proper consideration both to Ms Cooper’s interest in seeking protection of a culturally significant area and the interests of third parties (including industrial operators who have invested tens of billions of dollars in existing projects, and those whose work and lives could potentially be affected by the making of a declaration under s 10).

10    Thirdly, the Minister submits that even if it is found that the delay has been unreasonable, the Court should refuse the relief sought by Ms Cooper in the exercise of its discretion on the basis that a decision is expected on the s 10 application “by September 2025”, or in any event within weeks of the hearing, and the relief would therefore lack utility.

11    For the reasons that follow, I have concluded that there has been unreasonable delay in determining the s 10 application; it has not been progressed with the level of purposefulness and resoluteness required by the legislation in all the circumstances of the case. However, it is highly likely that there will be a decision very shortly, probably within the next few weeks, and there is currently an appropriate level of commitment and determination to progress the application to a decision within that time-frame. For that reason, I accept that there is little utility in ordering the Minister to make a decision by a particular date, and there are some dangers in doing so. Consequently, in the exercise of my discretion, I will not make an order of that nature, but I will give Ms Cooper the liberty to apply for further relief if the decision has not been made by 12 September 2025.

The statutory scheme

12    The stated purposes of the Act are “the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition” (s 4).

13    The place and significance of the Act in contemporary Australia was explained more than 30 years ago by French J in Tickner v Bropho [1993] FCA 306; 40 FCR 183 at 211 in a way that is equally applicable today and on which I could not possibly improve:

The preservation of human cultural heritage as a public duty is recognised in the laws of many nations. The concept is said to have originated in 19th century France: Sax, “Heritage Preservation as Public Duty: The Abbe Gregoire and the Origins of an Idea (1990) 88 Michigan Law Review 1142. The duty is recognised at international law by the Convention for the Protection of the World Cultural and Natural Heritage to which Australia is a party. The cultural heritage of any country extends to the language, traditions, customs, stories and religions of its peoples past and present. The drive to preserve that heritage sometimes conflicts with other perceived public interests which involve its destruction or impairment. In Australia these conflicts in respect of Aboriginal heritage are complicated by the existence of State and Commonwealth Governments which may have differing perspectives and priorities in their resolution. Each of the States and the Northern Territory has its own Aboriginal Heritage legislation. The relevant Commonwealth legislation is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). It was enacted with the express purpose of preserving and protecting from injury or desecration areas and objects in Australia that are of particular significance to Aboriginals in accordance with Aboriginal tradition. Informing its enactment however, was the idea that it would be used as a protective mechanism of last resort where State or Territory legislation was ineffective or inadequate to protect heritage areas or objects. The stated purpose and the underlying policy may have generated some ambivalence in the objectives of those administering the Commonwealth legislation. Both State and Commonwealth laws provide protection on a discretionary basis only. It seems that the Commonwealth law is likely to be applied when the assessment by the Commonwealth Government of competing public interests involved in the protection of Aboriginal heritage differs from that of a State or Territory.

14    Justice French also observed (at 223-224) that:

[The Act] was enacted for the benefit of the whole community to preserve what remains of a beautiful and intricate culture and mythology. Its protection is a matter of public interest. There will, however, be occasions on which that objective will conflict with other public interests. The public interest in the provision of safe, convenient and economic utilities may in some cases only be advanced at the expense of areas of significance to Aboriginals. The question whether a declaration should be made which would adversely affect the public or private interests is a matter within the discretion of the Minister who is required to evaluate the competing considerations and make a decision accordingly. It follows that the statutory purpose does not extend to unqualified protection for areas of significance to Aboriginals. The Act provides a mechanism by which such protection can be made available. Over and above that it accords a high value to such protection for heritage areas threatened with injury or desecration. That high statutory value is a factor required to be given substantial weight in the exercise of ministerial discretion under s 10.

15    Section 3(1) of the Act contains a number of definitions, including the following. “Aboriginal” means “a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands”. “Significant Aboriginal area” means an area of land or waters “of particular significance to Aboriginals in accordance with Aboriginal tradition”. “Aboriginal tradition” means “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships”.

16    Part II of the Act is entitled “Protection of significant Aboriginal areas and objects”.

17    Within Pt II, s 9 provides for applications to be made for emergency declarations in relation to identified significant Aboriginal areas. One of the requirements for the making of such a declaration is that the Minister is satisfied that the significant Aboriginal area “is under serious and immediate threat of injury or desecration” (s 9(1)(b)(ii)). A declaration under s 9 “has effect for such period, not exceeding 30 days, as is specified in the declaration”, save that that period can be extended for a further period up to a maximum of 60 days from the original declaration (ss 9(2) and (3)).

18    Also within Pt II, s 10, which is at the heart of the case, is in the following terms:

10     Other declarations in relation to areas

(1)     Where the Minister:

(a)     receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b)     is satisfied:

(i)     that the area is a significant Aboriginal area; and

(ii)     that it is under threat of injury or desecration;

(c)    has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and

(d)    has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, make a declaration in relation to the area.

(2)     Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3)     Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:

(a)     publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i)     stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii)     inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii)     specifying an address to which such representations may be furnished; and

(b)     give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4)     For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a)     the particular significance of the area to Aboriginals;

(b)     the nature and extent of the threat of injury to, or desecration of, the area;

(c)     the extent of the area that should be protected;

(d)     the prohibitions and restrictions to be made with respect to the area;

(e)     the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f)     the duration of any declaration;

(g)     the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

(h)     such other matters (if any) as are prescribed.

19    Pursuant to s 3(2)(a), an area is “injured or desecrated” if (i) it is used or treated in a manner inconsistent with Aboriginal tradition; (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition. An area is “under threat” of injury or desecration if it is, or is likely to be, injured or desecrated: s 3(3).

20    Notably, unlike in s 9, there is no requirement in s 10 that the area be under “serious and immediate” threat.

21    Section 11 requires that a declaration under ss 9 or 10 describe the relevant area with sufficient particulars to enable it to be identified and “contain provisions for and in relation to the protection and preservation of the area from injury or desecration”. Such provisions in the declaration are obviously critical to its efficacy; they can give normative effect to a declaration by stipulating the way in which protection is ensured including by proscribing what can and cannot be done in or adjacent to the specified area.

22    The Minister shall not make a declaration in relation to an area in a State unless they have consulted with the appropriate Minister of that State as to whether there is, under a law of that State, “effective protection of the area ... from the threat of injury or desecration” (s 13(2)), although a failure to comply with that requirement does not invalidate the making of a declaration (s 13(4)). With reference to that provision, it has been said that the Act is “a protective mechanism of last resort where State or Territory legislation is ineffective or inadequate to protect the heritage areas or objects”: Chapman v Luminis (No 4) [2001] FCA 1106; 123 FCR 62 at [256] per von Doussa J. See also Tickner v Bropho at 211 in the passage quoted at [13] above.

23    The Minister may, at any time after receiving an application for a declaration, conduct consultations with any person with a view to resolving to the satisfaction of an applicant and the Minister any matter to which the application relates (s 13(3)). Accordingly, the Act contemplates that an application may be resolved without the necessity for the Minister to make a declaration: Onus v Minister for the Environment [2020] FCA 1807 at [60] per Griffiths J.

24    The Minister has the power to revoke or vary a declaration at any time (s 13(6)).

25    A declaration must be published in the Gazette and in a local newspaper, if any, and comes into operation on the day after the day of its registration under the Legislation Act 2003 (Cth) or such later date as is specified in the declaration (s 14(1)).

26    Where the Minister refuses to make a declaration, they shall take reasonable steps to notify the applicant or applicants of their decision (s 16).

27    A declaration under ss 9 or 10 has the force of law and contravention of the terms of such a declaration is an indictable offence carrying substantial penalties (see ss 22 and 23 respectively). The Court has a broad power under s 26 to grant, on the Minister’s application, an injunction restraining conduct that constitutes or would constitute a contravention of a declaration made under Pt II and to restrain related conduct.

28    A decision on whether or not to make a declaration under s 10 is, or can be, a complex one; it may need to take many different matters into account, including conflicting public and private interest. Such a decision does not affect only one person, or even an identifiable group of people – a s 10 declaration can operate normatively to affect anyone and everyone.

Applicable principles

29    As mentioned, it is common ground that on its proper construction s 10 of the Act imposes on the Minister a duty to make or decline to make a declaration in respect of an application. Once the Minister has considered the matters in ss 10(1)(b) and (c), while they are “not bound to accede to an application for a declaration, [the Minister] cannot simply ignore such an application and fail to consider it at all”: Tickner v Bropho at 192 per Black CJ, and see also 208-209 per Lockhart J. Thus, the Minister’s acceptance that he is under a positive duty to decide the s 10 application is entirely proper.

30    There is no express provision in the Act requiring the Minister to make a decision on an application under s 10 within a certain time. However, as mentioned, the Minister accepts that the power and duty on him under s 10 is subject to an implied condition that a decision be made within a reasonable time. That acceptance is also entirely proper: Plaintiff S279/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 at [37] per Crennan, Bell, Gageler and Keane JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [102] per Gageler J.

31    As to what constitutes unreasonable delay, the applicable standard of reasonableness is a matter of statutory construction: Li at [67] per Hayne, Kiefel and Bell JJ. Regard must be had “to the circumstances of the particular case within the context of the decision-making framework established by the Act”: Plaintiff S297/2013 at [37].

32    The “authoritative statement” of the relevant inquiry is:

whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.

(ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372 at [21]-[23] per Robertson, Griffiths and Bromwich JJ, quoting Fisher J in Thornton v Repatriation Commission [1981] FCA 71; 35 ALR 485 at 492, and also adopted in Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1 at [37] per Bromwich, Abraham and McEvoy JJ.)

33    The Minister submits, with reference to KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1 at [193] per O’Callaghan and Steward JJ, that “oversight” in this context means “intentional oversight”. In the cited paragraph it was said that “criticisms directed at showing that the Minister’s staff were too slow, or took steps that another person might consider were unnecessary ... are not to the point, unless they show the presence of perversity, capriciousness, intentional oversight or neglect” (emphasis added). No authority was cited for the qualification of “oversight” with “intentional”, and their Honours had earlier said (at [176]) that “in determining whether there has been an unreasonable delay, we have applied the test, about which there was no issue between the parties, in Thornton”. The phraseology of “neglect, oversight or perversity” from Thornton was quoted, and it was noted that that had been cited with approval in ASP15. I can also find no authority prior to KDSP which uses the expression “intentional oversight”, which is not surprising in view of it being difficult to understand what can be meant by “intentional” oversight – oversight refers to a failure to notice or a mistake by inadvertence (Macquarie Dictionary Online) which cannot, therefore, be intentional. In those circumstances, there is little basis to conclude that their Honours intended to express any different test or inquiry than that that was expressed in Thornton and which has been adopted and applied on innumerable occasions. In any event, as a judge at first instance I consider myself bound by the more recent Full Court authority of Patrick (at [37]) which adopts the Thornton phraseology without qualifying “oversight” with “international”. I reject the submission that “oversight” in this context means “intentional oversight”.

34    I have considered whether the possible point of difference between KDSP and the other Full Court authorities in this area should be resolved by referring this proceeding for decision by a Full Court. In view of the urgency of a decision in this proceeding, that is not a practical course. Moreover, for the reasons given in the previous paragraph, I do not consider that there was any intended departure in KDSP from prior authority. I am aware of the position of a first instance judge when faced with conflicting Full Court authority. It is not my place to say that KDSP is wrong or per incuriam. See Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 282 FCR 580 at [188] per Allsop CJ, White and Wigney JJ, Besanko and Bromwich JJ agreeing at [226] (overturned on appeal but not on this point: Australian Building and Construction Commissioner [2022] HCA 13; 274 CLR 450).

35    Insofar as the burden of proof is concerned, it is for the applicant to show that there is unreasonable delay affecting the jurisdiction to make the decision; if the applicant establishes a delay which calls for explanation, then the persuasive onus shifts to the Minister to establish what that explanation is: AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424 at [59] per Besanko and Thawley JJ; see also MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [109(1)] and [118] per Gordon and Steward JJ. In considering whether the applicant has discharged the onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969; see Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [36].

36    The parties accept that with respect to the applicable principles as to unreasonableness of delay, there is no material difference between the approach to be taken under s 39B of the Judiciary Act 1903 (Cth) and ss 7 and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The witnesses

37    Ms Cooper relied on two affidavits of her solicitor to which various documents are exhibited. They essentially document the process of the s 10 application from the perspective of Ms Cooper, ie what she knows or was party to.

38    The Minister relied on two affidavits by Ms Michelle Dumazel, the Head of the Heritage Division of the Department. Ms Dumazel essentially documents the process of dealing with the s 10 application within the Department leading to a recommendation to the Minister. Ms Dumazel was not cross-examined. The Minister also relied an affidavit, deposed to the day before the hearing, of a solicitor acting for the Minister. Exhibited to that affidavit is the covering submission of a recommendation to the Minister which was signed by the Minister the day before the hearing, and emails to interested parties later that day seeking further submissions from them. I will return to the details of those matters.

The material facts

39    The Department has different divisions. One of those is the Heritage Division. Within the Heritage Division is the First Nations Heritage Protection Branch. That branch is primarily responsible for processing applications under the Act. Between May 2023 and the present, the number of staff in the branch has fluctuated between 11 and 20.

40    As mentioned, the s 10 application was made on 9 February 2022. At the same time, Ms Cooper and Ms Alec lodged a s 9 application seeking an emergency declaration to protect a specified area from “serious and immediate threat of injury or desecration”. The application sought to detect petroglyphs within the Perdaman urea plant development footprint. The application was on the basis that it was expected that Perdaman would remove the petroglyphs “imminently”.

41    Between 22 February and 31 March 2022, the Department dealt principally with the s 9 application. It was refused by the then Minister for the Environment, the Hon Sussan Ley MP, on 31 March 2022. That was on the basis that Perdaman had undertaken not to remove the subject petroglyphs within 60 days thereby placing the perceived threat beyond the maximum possible operative period of a s 9 declaration.

42    Other than initial letters by the then Minister to the Western Australian Ministers for Aboriginal Affairs and the Environment seeking submissions on the ss 9 and 10 applications, nothing appears to have been done by the Department in relation to the s 10 application until June 2022. In the meanwhile, there was a change of government on 21 May 2022 and a new Minister, the Hon Tanya Plibersek MP, with effect from 1 June 2022.

43    The result is that nothing meaningful was done on the s 10 application for nearly four months.

44    On 6 June 2022, Ms Cooper made a further application under s 9 seeking an emergency declaration in relation to petroglyph features within the Perdaman works footprint on the Burrup Peninsula. That was dealt with by the Department between then and 22 August 2022 when it was refused by the Minister. Although the Minister was satisfied that the sites in respect of which protection was sought are of particular significance in accordance with Aboriginal tradition, the petroglyphs were not under threat of injury or desecration because the proposal was to appropriately remove and conserve them prior to relevant construction being undertaken.

45    From June to July 2022, the Department worked on identifying a suitable person to be appointed as a s 10 reporter (as required by s 10(1)(c)) and preparing a brief to the Minister for the appointment of that reporter.

46    On 18 July 2022, Ms Cooper wrote to the Minister requesting the immediate nomination of a reporter under s 10. On 28 July 2022, the Department provided a brief to the Minister’s office recommending that the Minister point Ms Alison Stone as the s 10 report. Ms Stone has over 40 years’ experience in the public sector, working with both First Nations people and private industry. Ms Stone holds the degrees of Bachelor of Economics (1982) from the Australian National University and Master of Environmental Studies (1989) from the University of Melbourne.

47    On 19 August 2022, Minister Plibersek appointed Ms Stone to prepare a report in relation to the s 10 application. It took more than six months from the s 10 application being made to appointing a reporter.

48    On 19 October 2022, following consultation with the Ms Cooper, Ms Stone published a notice in the Government Gazette outlining the s 10 application and inviting submissions as required by s 10(3)(a) of the Act.

49    Ms Stone made two site visits to Murujuga and Perth, on 16-21 September 2022 and 15-25 November 2022. Between October 2022 and March 2023, four rounds of submissions and representations were made to Ms Stone. Those included 60 first round submissions, 10 second round submissions, 7 third round submissions and 7 fourth round submissions. In short, the consultation process embarked on by Ms Stone was extensive.

50    In March and April 2023, Minister Plibersek wrote to the Ministers for Aboriginal Affairs and the Environment of Western Australia seeking their views on the application, and she received submissions from them which were updated from those that they had provided to Ms Stone in November 2022.

51    On 27 June 2023, Ms Stone provided her final report to Minister Plibersek. The Stone Report is 159 pages in length (including a 19-page executive summary), and its attachments (including the many submissions referred to above) are 1,971 pages in length. With reference to the table of contents, it can be seen that most of the report consists of summaries of different interested parties’ submissions and “positions” on different issues followed, on each issue, by a short discussion and conclusion. The report itself is not a demanding or onerous document, and the length of its attachments – at least by every-day litigation standards – is modest.

52    On 22 November 2023, Ms Cooper and Ms Alec made a further 6-page submission to the Minister regarding developments that had arisen since the conclusion of their earlier submissions to Ms Stone.

53    Ms Dumazel’s evidence is that “[f]rom July 2023” she and other officers of the Department reviewed the Stone Report. Later she said that “[f]rom November 2023”, she and other officers of the Department considered the November 2023 submission by Ms Cooper and Ms Alec “and the Stone Report”. She said that the Department “was preparing a Ministerial Brief to support a decision on the section 10 Application, however, a draft was not sent in anticipation of new information being incorporated in the brief”. She said that, in particular, the Department “considered that interested persons should be invited to comment on Ms Stone’s findings and recommendations” and on the November 2023 submission.

54    On 5 December 2023, the Department responded to Ms Cooper and Ms Alec to request permission to send their November 2023 submission to other interested persons. The Department’s letter also noted that the next steps would be to proceed with procedural fairness in early 2024 by providing an executive summary of the Stone Report to affected parties.

55    On 19 April 2024, more than four months later, the Department provided Ms Cooper and other interested parties with the 19-page executive summary of the Stone Report and invited them to read and respond to the summary. The Department also invited comments from interested parties on the November 2023 submission by Ms Cooper and Ms Alec, a report of the Western Australian Environmental Protection Authority and the judgment and documents filed in a separate Federal Court proceeding initiated by Ms Cooper which culminated in Colvin J’s judgments in Cooper v National Offshore Petroleum Safety and Environmental Management Authority [2023] FCA 1112 and Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158. That proceeding concerned a proposed seismic survey by Woodside subsidiaries off the Burrup Peninsula coast.

56    It is to be noted that the Stone Report was received by the Department on 27 June 2023, yet the executive summary was not sent to interested parties with an invitation for submissions in response to it until 19 April 2024. That is a period of nearly 10 months of essentially no progress on dealing with the s 10 application other than to decided to provide the executive summary of the Stone Report and other documents received by the Department to interested parties for comment. That period of time is unexplained in the Department’s evidence. I will return to this.

57    In late May 2024, responses to the invitation to make submissions were received by the Department from the Murujuga Aboriginal Corporation (MAC), the State Government of Western Australia, Perdaman, Woodside, Yara Pilbara and Ms Cooper.

58    On 12 July 2024, the Department wrote to interested parties to provide an opportunity to comment on new information received in response to the April 2024 invitation to comment. In other words, the interested parties were given the opportunity to respond to each other’s responses to Ms Stone’s executive summary.

59    From 29 July 2024 to 2 August 2024, submissions were received from Ms Cooper, Yara Pilbara, MAC, Woodside, Perdaman and the WA Government in response to the July invitation to comment.

60    The period from when the last of those submissions was received, 2 August 2024, to May 2025 is the second period of apparent inactivity. I will return to discuss this period in detail.

61    In September 2024, the Department requested further information from the WA Government, which was provided in October 2024. In November 2024, Ms Cooper made a further supplementary 5-page submission to the Department.

62    Ms Dumazel said that “[s]ince November 2024”, officers in her Division “have been reviewing the material provided by the interested parties through the invitations to comment in April 2024 and July 2024, and [Ms Cooper’s] further supplementary submissions, to prepare a brief to the Minister to support a decision being made”. She explained that that is a time-consuming and complex process because of the voluminous material and the due diligence required in making a considered assessment in accordance with the Act.

63    On 21 January 2025, the Department wrote to the WA Government to invite further comments on whether there is effective state protection for the specified area.

64    On 28 March 2025, the Prime Minister called an election to be held on 3 May 2025. A new government was elected on that date, and a new Minister, Senator the Hon Murray Watt, was sworn in on 13 May 2025. During the period from the calling of the election until the election result was clear on 3 May 2025, there was a caretaker period during which, by convention, the government restricts its activities and the Public Service adopts practices to protect its apolitical nature in accordance with the Guidance on Caretaker Conventions published by the Australian Government Department of the Prime Minister and Cabinet. The Caretaker Conventions would not affect the work of the Department in continuing to progress the s 10 application towards a decision by the Minister after the election.

65    In April and May 2025, representatives of Ms Cooper and the Department twice exchanged correspondence in which Ms Cooper complained of the long time that was being taken to make a decision and urged a decision as soon as possible while foreshadowing her willingness to take legal action, and the Department sought to reassure her that the matter was under consideration.

66    On 22 May 2025, Ms Cooper commenced the present proceeding.

67    On 23 May 2025, the Murujuga Rock Art Monitoring Program: Monitoring Studies Report 2024 (MRAMP Report) was published. The MRAMP Report was prepared by WSP and Curtin University for the Western Australian Government Department of Water and Environmental Regulation and MAC. The report presents the results from the second year of the MRAMP, which examines the impact of industrial air emissions on the rock art engravings of Murujuga.

68    On 10 June 2025, the Department wrote to Ms Cooper and MAC to provide an opportunity to them to comment on the MRAMP Report. It received a letter from the Pilbara Ports Authority dated 25 July 2024 in response to the Stone Report’s key recommendations. On 18 June 2025, Ms Cooper provided a response to the invitation to comment. On 20 June 2025, MAC provided a response to the invitation to comment.

69    In her first affidavit, ie on 24 June 2025, Ms Dumazel said that she considered that making a full assessment of the s 10 application would require “until September 2025”. The steps that she identified as still to be taken included the formulation of appropriate conditions/restrictions to apply to any s 10 declaration as well as inviting interested parties to comment on the terms of any draft declaration. She said that a “final decision briefing package” for the Minister would have to be drafted, including any required documentation should the Department propose to recommend to the Minister to make a declaration over some or all of the proposed area. She said that she anticipated that a minimum of 20 days, depending on the Minister’s other commitments at the relevant time, would be required for the Minister to review all the relevant material.

70    In the light of that further action required to make a decision, Ms Dumazel said: “I anticipate that a decision could be made by September 2025, subject to any further rounds of procedural fairness.”

71    In her second affidavit, ie on 8 August 2025, Ms Dumazel said that since 24 June 2025 the Department had continued to work towards the presentation of a formal ministerial brief to the Minister to support a decision being made on the s 10 application. She set out the then current resource allocation to the matter, and said: “I anticipate a formal brief will be provided to the Minister next week subject to the contents of the information received in response to the current procedural fairness requests.” She also said that she remained of the opinion “that a decision could be made by September 2025”.

72    On 14 August 2025, the Department submitted a Ministerial Brief to the Minister. The Minister signed the brief on 19 August 2025, the day before the hearing, in which he separately “noted” each of four recommendations that were made to him by the Department. Those recommendations were as follows:

1. That you note that, based on the information in this submission and its attachments including the departmental analysis at Attachment A, the department considers:

a.     you can be satisfied that the specified area is a significant Aboriginal area for the purposes of sub-paragraph 10(1)(b)(i) of the ATSIHP Act, and

b.     you can be satisfied that the specified area is under threat of injury or desecration for the purposes sub-paragraph 10(1)(b)(ii) of the ATSIHP Act.

2. That, given recommendation 1, you note that the department considers that you may be able to:

a.     decide to make a declaration over parts of the specified area under section 10 of the ATSIHP Act, which would include the prohibitions and restrictions in relation to that area as specified in Attachments G, H and I, and

b.     decide to decline to make a declaration with respect of the remaining parts of the specified area.

3. That, in light of recommendation 2, you note that the department will consult with the applicants and interested parties regarding the potential form of a recommended declaration, including the potential prohibitions and restrictions as specified in Attachments H, I and J.

4. That you note that the department will, following consultation with relevant parties, provide you with any supplementary information necessary to enable you to make a final decision for the purposes of s 10(1) of the ATSIHP Act.

73    The Ministerial Briefing accompanying the recommendations set out some of the history of the process adopted by the Department since receipt of the s 10 application on 9 February 2022. That included summarising some of the key conclusions of the Stone Report, including that:

(1)    there is consensus among all parties that the specified area is of high cultural importance to the Ngarda-Ngarli people and that the area is a significant Aboriginal area in accordance with Aboriginal tradition;

(2)    the information provided supports a finding that part of the specified area is under threat of injury or desecration and recommends that the Minister make a declaration over part of the specified area; and

(3)    the balance of the specified area is not under threat of injury or desecration as the information provided did not substantiate potential threats, or alternatively, that the claimed threats do not fall within the definitions of the Act.

74    The Ministerial Briefing stated that the Department agrees with Ms Stone’s conclusion regarding the significance of the specified area and recommends that the Minister can be satisfied that the whole of the specified area is a significant Aboriginal area for the purposes of s 10(1)(b)(i) of the Act. The Department stated that it partially agrees with Ms Stone’s findings relating to threat, and considers that the Minister can be satisfied that parts of the specified area are under threat of injury or desecration for the purposes of s 10(1)(b)(ii) of the Act.

75    The Department recommended that the Minister make a declaration in relation to certain parts of the specified area under s 10(1) of the Act, and that the Minister decline to make a declaration over the remaining parts of the specified area. However, the Department noted that there are likely to be impacts on industrial activities as a result of a partial declaration so it recommended that officials undertake a period of procedural fairness and engage with relevant stakeholders in order to identify such impact, including on any proprietary or pecuniary interests. The Minister was advised that if he agreed with the recommendations, a final round of consultation on the form of the proposed prohibitions and restrictions will occur in the week of 25 August 2025.

76    The Ministerial Brief also noted that there was an application (ie this proceeding) before the Federal Court seeking “to compel [the Minister] to make a decision on this matter” and that the next hearing was scheduled for 20 August 2025.

77    Later the same day, ie 19 August 2025, emails were sent to a number of interested parties inviting consultations with them on the proposed declaration and, in particular, any impacts that the recommended declaration may have on their interests, by way of meetings in Western Australia during the week of 25 August. Those parties are: Ms Cooper and Ms Alec, Perdaman, Pilbara Ports Authority, Karratha Council, WA Government, MAC, Woodside and Yara.

Consideration of delay

Introduction

78    The statutory context outlined above indicates that there is considerable importance attached by the Parliament to a s 10 declaration. Such a declaration is aimed at protecting important public interests which, if not protected, may be lost forever. The Act “accords a high value” to such protection (Tickner v Bropho at 224 quoted at [14] above). The basis for the protection of those interests is that they are “under threat of injury or desecration” (s 10(1)(b)(ii)). Unless such a threat was able to be identified as likely to materialise only sometime in the distant future, by its nature an application for a declaration to protect against such a threat has an inherent degree of urgency. That is because if a declaration is justified but is not made before the threat materialises, the injury or desecration would have occurred and the purpose of the application defeated.

79    Aside from that generalised urgency, there was always a particular level of urgency that attended Ms Cooper’s s 10 application. The application stated that relevant damage had already occurred, that there was continuing damage caused by “ongoing industrial activity” and that there was a threat of further damage from various proposed identified developments. Thus, from the outset it was clear to the Department that the position was not static; if there was a proper basis for a declaration because the area is a significant Aboriginal area and it was under threat of injury or desecration, that injury or desecration was said to be already occurring.

80    As I observed at the outset, during the period in which Ms Cooper’s s 10 application has been under consideration, there have been two federal elections and three different Ministers responsible for the Act. The electoral cycle in Australia is three years: Constitution, s 28. It is hard to imagine that it might be reasonable for the Executive to take more than three years to make a decision that it is under a duty to make pursuant to legislation passed by the Parliament (which is itself subject to a maximum three-year lifespan).

81    Standing back from all the detail, the still continuing period of three and a half years to decide Ms Cooper’s application is on the face of it unreasonable. What is required is a decision in respect of one identified area that has a confined number of immediate stakeholders: the WA Government, Woodside, Perdaman, Yara, MAC, Pilbara Ports, Karratha Council and, of course, Ms Cooper and Ms Alec. The area is in a very remote part of the country, which contributes to there being so few immediately affected interests. I acknowledge that it is a complex, multifactorial decision with normative consequences, but a declaration can also be revoked or varied at any time (s 13(6) of the Act); it is not set in stone.

82    To my mind, the delay of more than three and a half years calls for an explanation; it calls for an explanation of why such a long time has passed and not merely a chronological documenting of each of the steps that have been taken. The point is that the mere length of time to make the decision calls for an explanation of why it has taken so long. The fact of regular and timely steps being taken along the way – which is not this case, as I will come to – is not an explanation of why so much time was taken; regular activity that does not purposefully advance the process towards a determination is not on its own an explanation for delay.

83    Descending now into some of the detail, there are two periods in the chronology of material events that I have outlined above that particularly call for an explanation. I shall refer to them as periods of apparent inactivity.

The first period of apparent inactivity: June 2023 to April 2024

84    The first period of apparent inactivity is from when Ms Stone provided her report to the Department (27 June 2023) to when the Department provided the executive summary of Ms Stone’s report to Ms Cooper and other interested parties and invited comment (19 April 2024). That is a period of nearly 10 months.

85    Ms Stone took approximately the same period to undertake four rounds of submissions, investigate the various matters required by s 10(4) and produce her report – she was appointed on 19 August 2022 and she provided her report to the Department on 27 June 2023. The report included a 19-page executive summary.

86    On 19 April 2024, the Department sent that executive summary to interested parties and invited comment on the report’s recommendations and whether a declaration providing heritage protection for the area should be made or not. The covering email requested responses by 13 May 2024 and stated that after receiving responses from interested parties, the Department would finalise its analysis and recommendations and put them to the Minister. Notably, the Department did not produce its own summary or analysis of the Stone Report for provision to interested parties – it simply extracted Ms Stone’s executive summary and provided that to the parties.

87    Turning now to Ms Dumazel’s evidence of what was happening during the first period of apparent inactivity, she refers to changes to the Western Australian legislation. That legislation is significant to the decision-making process because, as explained above, s 10(4)(g) of the Act requires that the independent report deal with the extent to which there may be relevant protection under a law of the State and s 13(2) requires the Minister to consult with the appropriate Minister of the State as to whether there is effective protection under a law of the State. Ms Dumazel explained the legislative changes as follows.

88    The relevant State legislation was initially the Aboriginal Heritage Act 1972 (WA). However, on 22 December 2021, a replacement Act, the Aboriginal Cultural Heritage Act 2021 (WA) was assented to and passed into law by the Western Australian Parliament. However, the substantive provisions of the new Act did not commence then, and initially no date was set for their commencement. On 19 May 2023, the WA Government proclaimed that the new Act, subject to some exceptions, would commence on 1 July 2023. Thus, during the time that Ms Stone was preparing her report the 1972 Act applied and it was not until a month before she provided her report to the Department that it was promulgated that the 2021 Act would commence on 1 July 2023, after the provision of her report – although the 1972 Act was to continue to operate with a six-month transitional period and to be formally repealed on 1 January 2024.

89    The result of the above is that it can be expected that after having received Ms Stone’s report, it would have been necessary for the Department to consider what effect, if any, the commencement of the 2021 Act might have on Ms Stone’s conclusions and recommendations. However, on 8 August 2023, only a little over a month after the Stone Report was provided to the Department, the WA Government announced its intention to repeal the 2021 Act and restore the 1972 Act with amendments. That was followed up on 15 November 2023 by the repeal of the 2021 Act and the reinstatement of an amended 1972 Act.

90    After detailing this history, Ms Dumazel then said that the legislative changes “affected the assessment of the section 10 Application, including consideration of the Stone Report”. She said that the Department “analysed the effect of these legislative changes on the application and engaged in further correspondence with interested parties, as discussed below”.

91    Ms Dumazel stated that from July 2023, she and other officers of the Department reviewed the Stone Report and its attachments of approximately 2130 pages. She said that on 22 November 2023, Ms Cooper made a further submission to the Department regarding recent developments. She then stated that from November 2023, she and other officers of the Department considered the November 2023 submission and the Stone Report. As mentioned, she said that the Department was preparing a Ministerial Brief to support a decision on the s 10 application but that it was not completed in anticipation of new information being incorporated in the brief. In particular, the Department considered that interested persons should be invited to comment on Ms Stone’s findings and recommendations.

92    That is the total of the Department’s evidence of what it was doing during the first period of apparent inactivity. Notably, Ms Cooper’s November 2023 submission is only six pages of double-spaced type plus some annexures. About half a page deals with the changes to the Western Australian legislation. It is not an onerous or complicated document. Also, despite the prominence given by Ms Dumazel in her affidavit to the changes to the Western Australian legislation, in its 19 April 2024 invitation for comment on the executive summary of the Stone Report, the Department did not seek any comments from interested parties on those legislative changes or how they might affect the situation other than by way of seeking responses to Ms Cooper’s November 2023 submission.

93    There is very limited reference to the 1972 Act in relevant parts of the Stone Report, and there is a reference to it in only one of the recommendations. Ms Dumazel does not explain in what way the legislative changes affected the assessment of the report or how much time was taken up in considering the legislative changes. In short, other than to identify the changes and say that their effect on the s 10 application was considered, she does not seek to explain the period of delay under consideration with reference to those changes.

94    There is an area within which a decision-maker has a genuinely free discretion, including as to the process that it will follow in reaching a decision; it is not for the Court to identify what could or even should have been done differently; it is not for the Court to put itself into the position of the Executive and judge what was done with reference to what it would have done: Li at [66] per Hayne, Bell and Kiefel JJ; see also Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 37-38 per Brennan J. The boundary between the role and function of the Court and that of the Executive is a fundamental one. Nonetheless, the nearly 10-month delay is not adequately explained. It is not clear what the Department was doing in that period when, at the end of it, all there is to show for the passage of time is an email to interested parties requesting comments on the executive summary of the Stone Report and Ms Cooper’s November 2023 submission. The decision-making process appears not to have been meaningfully advanced in that period. That is an important contributing factor to the overall assessment of the reasonableness of the delay.

The second period of apparent inactivity: August 2024 to May 2025

95    The second period of apparent inactivity is from when the Department received the last of the responses to its invitation of 12 July 2024 to interested parties to comment on other parties’ responses to the Stone Report (2 August 2024) to when it received the MRAMP Report (23 May 2025). That is another period of nearly 10 months.

96    It is necessary to pay close attention to what Ms Dumazel says was occurring in that period.

97    On 20 September 2024, the Department made a request of the WA Government to provide copies of the approvals granted under s 18 of the 1972 Act, and on 1 October 2024 the WA Government provided them. Those approvals were referred to by Ms Stone in her recommendation 1 that had been received back in June 2023 – indeed, the impact, effect or reach of the recommendation could only have been properly understood with those approvals in hand. In any event, writing one letter of request of that nature is immaterial progress.

98    On 20 November 2024, Ms Cooper made a further supplementary submission. It was five pages of double-spaced type and not at all demanding in its content.

99    Ms Dumazel explained that between July 2023 and November 2024, the Minister made decisions on 12 applications under the Act, which required “considerable resources from the Branch to assist in that decision-making process”. She did not say that those demands meant that resources were taken away from progressing Ms Cooper’s application, or what effect they had on such progress.

100    Ms Dumazel said in her first affidavit, ie on 24 June 2025, that “[s]ince November 2024, officers in my Division have been reviewing the material provided by the interested parties through the invitations to comment in April 2024 and July 2024, and the Applicant’s further supplementary submissions, to prepare a brief to the Minister to support a decision being made”. She said that that is a time-consuming and complex process because of the voluminous material and the due diligence required in making a considered assessment in accordance with the Act.

101    She also explained that the Division has competing priorities. Once again, she did not say what impact those competing priorities had on progressing the application in question.

102    Some further correspondence passed between the Department and the WA Government in January 2025, and on 16 April 2025 and 19 May 2025 Ms Cooper wrote to the Minister urging that her application be decided.

103    There is no other evidence as to what took place during the second period of apparent inactivity. The s 10 application seems to have been essentially dormant except for Ms Dumazel and officers of the Department considering the materials and preparing a brief. More than 10 months is a very long time for that to take place, particularly considering that once the brief was prepared – being the brief presented to the Minister on 14 August 2025 – it turned out to be six pages consisting mostly of high-level summaries and little analysis.

104    As with the first period, the decision-making process was not meaningfully advanced in the second period.

Other matters

105    There are a number of other matters that I take into account.

106    First, Ms Cooper rightly draws attention to the fact that Ms Stone’s recommendation 3 was that locations of parts of the specified area relating to the proposed Perdaman development were under threat of injury or desecration consistent with s 3(2) of the Act. She identified the need to protect the tangible and intangible cultural heritage on two specific sites, one of them being the Thalu site that would be impacted by the proposed Perdaman development. Ms Stone recommended that a declaration should be made that would, amongst other things, prohibit construction of an identified causeway linking Perdaman’s operational plant infrastructure to its non-process infrastructure. It was found that the threat to the Thalu site arose from the location of the proposed construction of the causeway across the Thalu which would further fragment and harm the cultural significance of the site and the passing on of knowledge and traditions. It is also apparent from the report that the Perdaman development was relatively imminent – in the report itself it was said that Perdaman was close to finalising the engineering, procurement and construction project for the development as a whole and that any delays would risk its finance for the project.

107    The position was therefore that from the end of June 2023, or as soon thereafter as the Department’s officers read the Stone Report – Ms Dumazel said that she and other officers of the Department “reviewed” the report from July 2023 – the Department was aware that Ms Stone had concluded that there was a site that should be protected by a declaration and that the site faced imminent threat from the development of the causeway. Those facts appeared from one of three recommendations recorded in the executive summary of the report. The Department should therefore have been immediately aware of some urgency in dealing with the application – certainly, reasonably, it was required to be decided before the causeway was constructed. Ms Cooper was not made aware of Ms Stone’s recommendation in relation to the Thalu site until she was sent the executive summary of the report in April 2024, so she was not in a position to act on it by bringing yet another s 9 application.

108    Those facts contribute to the assessment that the Department’s delay in progressing the s 10 application was unreasonable in the relevant sense.

109    As it happens, Ms Cooper recorded in her 27 May 2024 response to the Stone Report executive summary that recommendation 3 had come too late because the causeway had been built in the meantime and the threat had materialised. Perdaman also wrote in response to the Stone Report, on 24 May 2024, that the causeway had already been constructed – the completed causeway was inspected on 30 April 2024. Perdaman produced photographs of the causeway that were taken on 16 May 2024.

110    Secondly, as an observation that applies generally to the process adopted by the Department, each time it wrote to interested parties and invited submissions or further comments it imposed a deadline measured in weeks, and almost invariably it received responses within the time stipulated, or shortly thereafter. However, a much longer time was then allowed to pass before the Department took the next step, which was usually to seek further submissions or comments on those previously received. In other words, the Department regularly adopted what can fairly be described as a “hurry up and wait” approach – it hurried the interested parties up to respond, and then made them wait for long periods before the next step was taken.

111    Thirdly, it is submitted on behalf of the Minister that since none of Ms Dumazel’s evidence was challenged it should be accepted and that that places “a significant hurdle” to the criticisms of the decision-making process made by Ms Cooper. I accept Ms Dumazel’s evidence. The problem is that in certain respects it does not go far enough and in other respects it is silent.

112    For example, Ms Dumazel says quite a lot about resourcing within the Department and also about the number of s 9 and s 10 applications that were received and dealt with at different times. But she does not say that under-resourcing in the Department was a reason for the delay, or explain how or in what way the present application was delayed by the other demands on the Department. In Patrick, it was explained that as part of the usual process of determining whether any particular delay is unreasonable, resourcing can be treated as one relevant consideration, “provided that resourcing is an, or the, explanation for the delay” (at [29]-[30]). That proviso is not met in this case.

113    As a further example, as detailed above, at several places Ms Dumazel states that she and officers of the Department were considering or reviewing the relevant documents. I accept that they were, but in the periods already dealt with there is no explanation of why so much time was taken or required for such review, or what that review involved. Bald and generalised statements applicable over long periods of time that documents were being “reviewed” or “considered” are relatively meaningless. The ability to give a proper and convincing explanation of what was actually being done during those periods of time lies entirely with the Department, not the applicant.

Conclusion on delay

114    I consider that the delay in the Minister making a decision in this case is unreasonable in the legal sense, and it has not been adequately explained. It is perverse that the decision should have taken as long as it has; no considered reason has been given for the delay. The delay is the consequence of oversight and neglect. Those conclusions are not based on criticisms of the individuals in the Department directed at showing that they were too slow, or took steps that another person might consider were unnecessary. The process as a whole was not progressed at the pace that the standard of reasonableness in the relevant context and in all the circumstances required; long periods of relative inactivity with little to no progress occurred.

115    Looked at differently, the point is that more than three and a half years for a decision on the s 10 application is, on the face of it, unreasonably long. That cast a burden on the respondent to explain why the decision has taken so long. Setting out the various steps that were taken merely shows what has been done; it does not explain why those particular steps took so long, let alone why the whole process has taken so long. There is no adequate explanation for the delay. It is not said that there was some extraordinary or unforeseen event that delayed matters. It is not said, for example, that some third party over whom the Department has no control caused significant time to be lost. It is not said that the competing demands on the Department made it impossible, or impractical, for it to progress matters to a decision more quickly. It is not said that some key decision-maker was ill or incapacitated. In short, the Department has not progressed the decision-making process with the purposefulness and resoluteness that is required.

Relief

116    As mentioned, Ms Cooper seeks an order requiring the Minister to make the decision within a specified time. As a matter of discretion, I am not satisfied that such an order should be made. That is principally for two reasons.

117    First, I am satisfied on the evidence that despite the long delays in the past as a consequence of oversight and neglect in the past, the Department is now progressing the decision-making process to finality with the degree of purposefulness that it deserves. There is a resoluteness to what they are doing, and they are doing it to identified timeframes. It appears that the fact of this proceeding is a major driver of that purposefulness, and so it should be in the light of the delay in the past.

118    Secondly, the decision is now imminent. Although it seems that it is not likely to be made “by September”, which is only a few days away, it is likely to be made within a week or two thereafter.

119    Those two reasons lead me to the conclusion that an order of mandamus is not necessary; it is not needed in order to ensure that a decision is made within a reasonable time from now. There is also the difficulty that it is not beyond reasonable possibility that there will be some properly justifiable albeit presently unforeseen delay beyond a period of time that I might set and the setting of such a time limit may therefore distort the proper decision-making process.

120    In the circumstances, I propose to take the course adopted by Flick J in AFX17 v Minister for Home Affairs [2020] FCA 807 at [66]. His Honour declined to order mandamus because it was expected that the relevant decision would shortly be made, but against the possibility of those expectations not coming to pass he reserved to the applicant the liberty to apply for further orders, including an order that a decision be made within a specified time.

121    I will also list the proceeding for case management in a few weeks’ time for the Court to be updated on progress and, if the decision has been made, to case manage any remaining issues including costs. Because of the unreasonableness of the delay and that I have exercised my discretion against making a mandatory order because of the progress in the decision-making that has come about because of this proceeding, my prima facie view is that the respondent should pay the applicant’s costs of the proceeding but I will hear the parties on that question in due course.

Associate:

Dated:    25 August 2025