The Expanding Role of Human Rights Law in Public Law Proceedings: Chief Executive, Dept of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians [2026] QCA 7
Hannah Bowcock
14.9.2026
If a practitioner does not self-identify as a ‘human rights lawyer’, it is tempting to disregard developments in human rights jurisprudence as irrelevant to legal practice. A working understanding of the human rights legislation in force in the Australian Capital Territory, Victoria, and Queensland is, nonetheless, an important part of the legal practitioner’s toolkit.
The decision of the Queensland Court of Appeal in Chief Executive, Department of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians [2026] QCA 7 (Appeal) provides a recent example of a case in which the rights given statutory expression in human rights legislation were considered to be relevant to the question of an applicant’s standing to seek relief under judicial review legislation.
The decision confirms that, notwithstanding that the rights set out in human rights legislation are not capable of freestanding operation, they may be relied upon in proceedings other than those commenced under human rights legislation, such as in judicial review proceedings.
The subject of the Appeal
The Appeal concerned a challenge to a decision of the Chief Executive of the Department of Environment, Science and Innovation to not take action under the Environmental Protection Act 1994 (Qld) to secure Adani Mining Ltd’s compliance with an Environmental Protection Order when conducting open cut mining at the Carmicheal Coal Mine. One of the central questions on appeal was whether the Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd – representing ‘a self-determined Wangan and Jagalingou Group’ (at [15]) – had standing to seek a statutory order of review or other relief under the Judicial Review Act 1991 (Qld).
Background to the Appeal
In February 2023, the Chief Executive granted Adani a conditional approval to conduct mining for black coal at the Mine. On 2 March 2023, an Environmental Protection Order was issued by the Chief Executive requiring Adani to pause the commencement of mining until it could demonstrate, to the satisfaction of the Department, that the mining could be ‘conducted in a way that does not exceed the approved impacts’ (at [7]). The decision by the Chief Executive to issue the EPO was itself the subject of a challenge by Adani, which does not yet appear to have been the subject of a judicial decision.
On 23 November 2023, Nagana wrote to the Department on behalf of the Wangan and Jagalingou Group in relation to the effect of Adani’s mining on Doongmabulla Springs, which it was alleged would be impacted by open-cut mining activities at the Mine. Nagana called on the Chief Executive to urgently exercise the statutory powers available to it under the EPA to prevent any further open cut mining activity by Adani until the Chief Executive could ‘be satisfied with sufficient scientific certainty that there is not, and is no threat of, environmental harm to the Springs from that activity’ (at [10]).
In its response to Nagana, the Chief Executive declined to exercise its powers under the EPA in the manner requested. The Chief Executive acknowledged that the Springs have ‘spiritual significance’ to Nagana (at [11]–[12]). The correspondence indicated, further, that the Department had turned its mind to the Human Rights Act 2019 (Qld) and determined that any limitation on rights ‘is likely to be reasonable and justified’ (at [11]). The consideration of rights appeared to be confined to ‘the impact of the grant of the original approval and the mining conducted [by Adani] pursuant to it’ (at [12]).
On 16 February 2024, Nagana commenced proceedings in the Supreme Court of Queensland against the Chief Executive seeking a statutory order of review under the Judicial Review Act. The decision under review was characterised as a decision of the Chief Executive to fail to act under the EPA to ensure the protection of the Springs from the impact of Adani’s mining operations. To establish its standing to seek the relief sought, Nagana relied upon ss 28(1)–(2) of the Human Rights Act as the primary source of its interests adversely affected by the decision.
Sections 28(1)–(2) of the Human Rights Act provide:
(1) Aboriginal people and Torres Strait Islander peoples hold distinct cultural rights.
(2) Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community –
(a) to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and
(b) to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and
(c) to enjoy, maintain, control, protect and develop their kinship ties; and
(d) to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and
(e) to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources.
The Chief Executive applied to set aside Nagana’s application for a statutory order of review, principally on the basis that the decision under review was not a decision that ‘confers, alters or otherwise affects’ any legal right or obligation of Nagana (applying the test articulated in Griffith University v Tang (2005) 221 CLR 99 at 130–131 [89]). This submission was accepted, and Nagana’s application was set aside on that basis. The primary judge was not satisfied that Nagana had any legal right to the exercise of powers under the EPA and, further, held that the non-exercise of powers could have no effect on any rights held by Nagana under the Human Rights Act. It was not necessary to determine whether the decision was, on its face, reviewable.
In addition to its application for a statutory order of review, Nagana sought declaratory relief under the Civil Proceedings Act 2011 (Qld). While Nagana’s application for relief under the Judicial Review Act was dismissed, its application for relief under the Civil Proceedings Act was permitted to proceed. The Chief Executive appealed from the primary judge’s decision to permit the proceedings to continue in part. Nagana cross-appealed from the primary judge’s decision to set aside its application under the Judicial Review Act. One of the primary questions on appeal was whether the primary judge erred in determining that Nagana did not have standing to seek the relief sought under the Judicial Review Act.
The Relevance of the Human Rights Act to Standing under the Judicial Review Act
The Court of Appeal accepted that the decision of the Chief Executive to not exercise its powers under s 358 of the EPA to issue an EPO was a decision of an administrative character authorised under an enactment (at [60]). The critical question, for present purposes, was whether Nagana was a person aggrieved whose interests were adversely affected by the decision, such that Nagana had standing to seek the relief sought under the Judicial Review Act. This, relevantly, required consideration of the rights given statutory expression in the Human Rights Act.
The Court of Appeal held that, notwithstanding that the rights expressed in the Human Rights Act can generally be described as not having freestanding operation, those rights are relevant in assessing whether a decision itself confers, alters or affects them (at [101]). It was, therefore, appropriate to have regard to the Human Rights Act in determining whether Nagana was a person aggrieved for the purposes of establishing standing under the Judicial Review Act.
The Court of Appeal rejected the submission that adopting this approach would cause the rights contained in the Human Rights Act to become ‘untethered’. The Court of Appeal concluded that it would not be a proper construction of the Human Rights Act to treat the rights given statutory expression therein as irrelevant ‘save where the right arises for consideration under another section’ of that instrument, such as ss 58–59, which set out the (limited) circumstances in which proceedings may be commenced under that Act against a public entity (at [127]).
The rights given statutory expression in the Human Rights Act were regarded as eligible for consideration as rights for the purposes of satisfying the second limb of Tang (that ‘the decision itself confer, alter or otherwise affect legal rights or obligations, and in that sense … derive from the enactment’ (at 130-131 [89])). It was not necessary for Nagana to rely upon s 48 of the Human Rights Act, which relevantly provides that ‘[a]ll statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights’ (see [116]). The Court of Appeal rejected (at [114]) the proposition that s 48 was relevant to the interpretation of the word ‘decision’ in s 4(a) of the Judicial Review Act.
The Court of Appeal considered the possible practical implications of a decision to not exercise statutory powers upon Nagana’s full enjoyment of the rights contained in s 28 of the Human Rights Act. Notwithstanding that the non-exercise of powers under the EPA does not necessarily confer, alter or affect rights per se, the Court observed (at [132]) that the rights given expression in s 28 of the Human Rights Act ‘may be altered in a practical sense if the nature of the land or waters is so affected so as to prevent or impair the strength of that relationship’. The question as to whether the right was so affected was a factual enquiry. The Court held (at [132]) that:
[t]he right may be affected by any conduct which causes harm (as alleged) to the land and the waters, not because the right itself is diminished but because the quality of its enjoyment or fulfilment is or may be diminished.
Ultimately, it was not necessary for the Court of Appeal to finally determine the question as to whether the decision, in fact, affected Nagana’s rights under the Human Rights Act. The question as to whether the primary judge erred in his decision to dismiss Nagana’s application for relief under the Judicial Review Act could be determined without forming a concluded view as to whether the application would ultimately succeed. Further, and as noted above, final determination of the issue would involve a factual enquiry on matters before the Court. The Court nonetheless recognised as arguable the proposition that a decision not to exercise a power may impair cultural rights recognised by s 28 of the Human Rights Act and, accordingly, confer standing on Nagana to seek a statutory order of review under the Judicial Review Act.
Significance of the Court of Appeal’s decision and a path forward
The Court of Appeal’s decision confirms that the rights recognised in the Human Rights Act may be relied upon as a source of rights or obligations for the purposes of establishing standing in the context of a judicial review application. More broadly, the decision supports the proposition that the Human Rights Act may become relevant in legal proceedings even if those proceedings are not expressly fashioned as an application for relief under that Act.
This is particularly significant in circumstances where, in Queensland and Victoria, the circumstances in which relief or remedy may be sought in relation to an act or decision of a government authority under the human rights legislation is quite limited. In both jurisdictions, legal proceedings may only be commenced against a government authority if the claimant otherwise has standing to seek the same relief or remedy in relation to the same act or decision, colloquially referred to as the ‘piggyback’ provision. The remedial provision in the Australian Capital Territory, by contrast, creates a standalone cause of action.
As expressly noted in the text of s 59(4) of the Human Rights Act (and the analogous s 39(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)), the remedial provisions contained in the Human Rights Act do not affect a right a person has, otherwise than under that Act, to seek any relief or remedy in relation to an act or decision of a government authority. This includes, relevantly, a right to seek judicial review under the Judicial Review Act. The Human Rights Act 2004 (ACT) makes similar provision, and further notes that a person may ‘rely on the person’s rights under [the Act] in other legal proceedings’ (s 40C(2)(b)).
While, as noted above, it was not necessary for the Court of Appeal to finally determine the question of standing in the context of the appeal, the decision leaves open the possibility that the rights given expression in human rights legislation may provide an additional source of rights or obligations for the purposes of establishing standing in judicial review proceedings. Putting to one side the vexed question as to whether the rights contained in the various human rights instruments are otherwise protected at common law (engagement with which is beyond the scope of this piece), this case represents a significant jurisprudential development.
The decision confirms that it is not necessary for legal proceedings to be fashioned as a claim under human rights legislation – whether as a piggyback action or as a standalone claim – for the rights contained therein to become legally relevant. The principal application made by Nagana was for a statutory order of review and prerogative relief pursuant to the Judicial Review Act. The Court considered that the rights contained in the Human Rights Act were relevant to the determination of that application, without there necessarily being a need to fashion the claim as one for relief under the piggyback provision in s 59 of the Human Rights Act.
The decision signals to practitioners that the relevance of the Human Rights Act (and analogous legislation in the Australian Capital Territory and Victoria) is not restricted to proceedings commenced under that Act. In addition to presenting an opportunity for greater creativity in the formulation of legal claims, it also serves as a reminder of the need for broader awareness of the operation and effect of human rights legislation within the legal profession, particularly for those practicing in the Australian Capital Territory, Queensland, and Victoria.
Hannah Bowcock is a PhD candidate at the UNSW Faculty of Law & Justice. Her doctoral research examines the extent to which the judiciary should defer to the executive's assessment as to what constitutes a reasonable limit on a right under an Australian Human Rights Act. She holds a Bachelor of Laws and a Bachelor of Arts from the University of Queensland and a Master of Law from the University of Cambridge. She practices as a Senior Solicitor at the Office of the ACT Government Solicitor and has previously held positions as the Solicitor Assisting the Solicitor-General for the ACT, Judicial Associate to a Judge of the District Court of Queensland and the ACT Supreme Court, and as a Visiting Professional at the International Criminal Court. Her research interests include public law, constitutional law, human rights law, and public international law. The views expressed in this article are the author's own and are not attributable to any other persons except as expressly acknowledged.
Suggested citation: Hannah Bowcock, ‘The Expanding Role of Human Rights Law in Public Law Proceedings: Chief Executive, Dept of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians [2026] QCA 7’ (14 September 2026) <https://www.auspublaw.org/blog/2026/9/expanding-role-of-human-rights-law-in-public-law-proceedings>