Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Editors --- "Norvill And Anor V. Chapman And Ors, Tickner, And Saunders; Norvill And Anor V. Barton And Anor, Tickner, And Saunders; Tickner V. Chapman And Ors, Norvill And Anor, And Saunders; Tickner V. Barton And Anor, Norvill And Anor, And Saunders - Case Summary" [1996] AUIndigLawRpr 50; (1996) 1(2) Australian Indigenous Law Reporter 238

Norvill And Anor v. Chapman And Ors, Tickner, And Saunders;

Norvill And Anor v Barton And Anor, Tickner, And Saunders;

Tickner v Chapman And Ors, Norvill And Anor, And Saunders;

Tickner v. Barton And Anor, Norvill And Anor, And Saunders

Federal Court of Australia (Black CJ, Burchett and Kiefel JJ)

7 December 1995, Adelaide

Aborigines and Torres Strait Islanders -- Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) -- Declaration by Minister under s. 10 -- Appeal from orders of Federal Court under Administrative Decisions (Judicial Review) Act 1977 (Cth) quashing the report to the Minister and the Minister's declaration -- Whether notice of the reporter's inquiry had been adequate -- Whether Minister had given consideration to representations made to the reporter.

On 9 July 1994 T, the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, made a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that he was satisfied that an area in South Australia was a "significant aboriginal area" and that it was "under threat of injury or desecration". The effect of the declaration was to prohibit, for twenty five years, the construction by C of a bridge connecting Goolwa and Hindmarsh Island (Kumarangk) near the mouth of the Murray River.

C and B sought review of the Minister's declaration, and of S's report to the Minister, under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was successful on two grounds:

(1) the inadequacy of the published notice of the inquiry by S;

(2) the Minister's failure to consider representations, including materials in a sealed envelope marked that they should not be read by men, attached to S's report.

(See Chapman v. Tickner (1995) 55 FCR 316; (1995) 133 ALR 74, noted in (1996) 1(1) AILR 31.)

The present cases are appeals to the Full Federal Court from that decision. In separate judgments the three members of the Full Court dismissed the appeals with costs.

On the inadequacy of the published notice, their Honours made the following observations:

Burchett J

[28] ... [N]either the nomination of Professor Saunders to furnish her report nor the advertisement published by her contains any reference to a "specified area".

[29] ... Parliament could hardly have contemplated that an area of particular significance would be incapable of being ascertained so as to be identified in an application. Contemplating a matter of great importance, with the potentiality of greatly [30] affecting a number of people, Parliament used the word "specified", and it seems to me it did so advisedly.

The requirement that the notice should state "the purpose of the application" involves more than the definition of the area to be specified. It refers to the nature of the threat apprehended and the protection required. Again, when an area is said to be of particular significance, it almost goes without saying that this significance would be expected to be capable of some clear statement, so as to show how the anticipated harm could occur, and how it should be prevented. The notice published in the present matter is absolutely silent about these questions. A citizen who read it would not know whether the concern related to camp sites, burial places, dreaming tracks, or whatever else might have some great (or, possibly, some lesser) significance to Aboriginals in accordance with Aboriginal tradition. It follows that he would not know that what was in question involved the possibility of an absolute ban for many years on the construction of the planned bridge, rather than, for instance, measures to protect particular relics, while permitting construction to proceed.

Apart from the requirement to state the purpose of the application, and obviously overlapping with it, is the provision made by s.10(3)(a) that the notice is to state "the matters required to be dealt with in the report". In the present case, the notice stated that the report "will deal with" certain matters which are simply listed in the language of the Act itself. I have no doubt that the Act does not contemplate such a useless formality. When it requires the notice to state these matters, it refers to the particular issues raised by the application under them. The Act is expressed in general language, but it does not contemplate either an [31] application or a notice that merely repeats that general language. ... It is necessary that the notice inform persons, who may wish to make representations, about the questions raised in the particular case in respect of the various statutory issues. So deficient was the notice in this regard that the trial Judge was compelled to find (supra [Chapman v. Tickner (1995) 55 FCR 316], at 367):

"Large as women's business loomed in Professor Saunders' report and in the Minister's decision-making process, no formal announcement to the public of its existence was ever made."

The potentiality for inadequate investigation is obvious. In such a situation, competing Aboriginal traditions, quite apart from competing anthropological or historical views about the tradition alleged, might easily go unheard. Parliament's clear purpose of ensuring an adequate public ventilation of the issues inevitably foundered.

Indeed, it seems plain that when the "women's business" was raised, and assuming those who raised it intended to pursue it notwithstanding the difficulties of confidentiality in which it was enmeshed, the Minister was required to deal with a fresh application under s.10(1). The grounds were quite different from those put forward in the application of 23 December 1993, in relation to which the nomination of Professor Saunders had been made. [32] The area concerned was, of course, different too. What was in question was no longer a matter of camp sites and sites of archaeological interest, but involved the entire region the subject of the beliefs asserted as part of the "women's business". In my opinion, an application so far removed from that originally made required a new nomination under s.10(1)(c) and a new notice under s.10(3).

Black CJ

[8] ... The legislative intention revealed by this scheme is that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application under s.10(1). The intention is that the Minister should make an informed decision on all relevant questions, with input from interested persons: see Tickner v. Bropho [(1993) [1993] FCA 208; 40 FCR 183] at 194. The Parliament no doubt intended that the "interested persons" would include those who might oppose the making of a declaration as well [9] as those who might support it. In all these circumstances, it would be contrary to the legislative intention to interpret narrowly the requirement imposed by s.10(3)(a)(i) that the notice must state the purpose of the application made under s.10(1): cf. Scurr v. Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 252 per Stephen J.

... [I]t is only when the Minister receives an application in accordance with s.10(1)(a) that the process under s. 10 can begin. An application under s.10(1)(a) must, according to the terms to the sub-section, seek the preservation or protection of a specified area from injury or desecration. ... None of this means that a valid application under s.10(1)(a) must describe the area sought to be protected with the degree of detail that one would expect in a declaration, the breach of which is punishable by fine or imprisonment or both. But the area must be [10] "specified". Section 10(1)(a) requires that the area be a specified area and this requirement is not satisfied by vague generalities. There must be some reasonable identification of the area.

... [T]here is no getting away from the fact that the application must be for "a specified area" and the circumstance that the application may be made orally, and without formality, does not provide a [11] reason to deprive the expression "specified area" of its ordinary content. This is because there is no necessary inconsistency between a genuine application that is oral and informal and the requirement that it be for the protection of a specified area.

[15] ... It is less clear whether, to satisfy the obligation to state the purpose of the application, it is necessary for the notice to identify the apprehended injury or desecration against which the application seeks protection. There are two aspects of the concept of injury or desecration that could be involved here: first, the activity or activities that are regarded as constituting injury or desecration and, secondly, the reasons why such activities are regarded as constituting injury or desecration.

As a practical matter, however, it is to be expected that an application for protection will indicate very clearly the nature of the activity constituting the threat against which the protection of the Minister's declaration is being sought.

[16] ... The wide range of activities that could amount to injury or desecration, and in respect of which an application might be made, together with the practical likelihood that an application to the Minister will identify the apprehended injury or desecration, leads me to conclude that to state the purpose of the application in conformity with the requirement of s.10(3)(a)(i), it is necessary to state, at least, the activities that constitute the perceived threat of injury or desecration.

[17] ... In my view, the language of s.10(3) and the important purpose of the notice in the process of reporting and decision-making provided for by the section, requires the conclusion that a failure to state the purpose of an application invalidates the s. 10 process. Before turning to the next aspect of this question, I should say that I have not found it necessary to go further and to determine whether the statement of purpose need reveal anything about the traditions and beliefs affected by the activities against which protection is sought. In considering that matter one would need to be particularly mindful of the policy of the Act with respect to preservation, and the danger of offending traditions of Aboriginal people by disclosing beliefs of a particular character to the world at large, balanced against the policy of the Act with respect to the reporting process.

It remains for me to consider whether the requirement to state the purpose of the application involves a requirement to identify the person or persons by whom, or on whose behalf, the application has been made. There may be very good reasons why, as a matter of policy, it would be desirable for people to know by whom, or on whose behalf, an application under the Act was made in respect of a specified area. But desirable though it might be to let people know [18] by whom or on whose behalf an application has been made, I think it is stretching the meaning of "purpose" to conclude that a requirement to state the purpose of an application involves a requirement to state by whom the application is made, particularly when there is no statutory requirement for the applicant to have any greater connection with the area sought to be protected other than to be, or to act on behalf of, an Aboriginal person or a group of Aboriginal people.

In the last respect, therefore, I do not agree with the learned primary judge but nothing turns on that because I agree that the notice was deficient in the other respects that I have mentioned.

Kiefel J

[21] ... [T]he objects of the section require sufficient information to permit an understanding of what the application concerns and to enable facts to be put forward and views expressed upon it and the making of any declaration. The wider community could not in my view be regarded as informed of the topic for their comment without a description of the land or waters and the tradition, the very matter sought [22] to be protected by the declaration. As to the identification of the applicants, it seems to me that the explanation of the tradition will connect it with a group of people and that is the essential information.

The other matter raised in support of a more limited, less detailed, disclosure to the public, the need for confidentiality, is not addressed in the Act save for the provision as to Court proceedings, s.27, to which I have earlier referred. The declaration itself must specify the area to be protected which, if it is less than that applied for, will serve not only to identify, but to focus upon that part of it which is of greater importance, as may the provisions for protection contained in the declaration. The notice calling for public comment which preceded any such declaration would be illusory if it did not advise what the applicants sought and why. The importance, within Aboriginal society or groups, of the retention of secret knowledge only by those in whom it is intended to reside is well known and has been for some time. One may accept that the Parliament was aware of it. But one must also accept, as provisions in the Act make clear, that it was also conscious of the effects upon the interests of others a declaration may have. In the result it has chosen to extend protection to those areas which are nominated, for which a reason is ascribed and which may be made known to the public for comment.

On the question whether the Minister had failed to consider representations:

Burchett J

[17] ... Although it is clear that the Minister did not see the [18] representations, apart from the two documents sent to him by facsimile, Ms Kee (she says) "advised the Minister that the report of Professor Saunders reflected the matters which were raised in the representations attached to the report". She also told him that "there was nothing contained within [the confidential annexures to the report of Dr Fergie] which did not support the information contained in the Saunders Report concerning the nature of the significance of the area to the Ngarrindjeri women". In addition to giving this evidence, Ms Kee told the Court that the Minister's handwriting appeared on his copy of the report of Professor Saunders and the representation from the State Minister for Transport.

In cross-examination, it became clear that Ms Kee had not herself read all of the representations, and there was some vagueness as to just what she had read.

[19] ... Having reviewed the evidence for myself, as it appears in the appeal books, I respectfully express my unhesitating concurrence in the Judge's finding that the representations were not considered. They were certainly not seen, with the exceptions I have already indicated; and the evidence makes it plain that such information about them as the Minister received by telephone was wholly inadequate to enable it to be said, as a matter of fact, that he had, in any reasonable sense of the word, "considered" the representations. On many matters, it was Ms Kee who considered them, to the extent that she did so, and [20] what she communicated to the Minister was her own value judgment about them, and about the validity of the conclusions Professor Saunders had reached in relation to them.

In my opinion, it was not open to the Minister to hand over to Ms Kee his responsibility to consider the representations. His task under s.10, the Act makes clear (by s.31), is not to be delegated. Undoubtedly, he may receive the assistance of staff, but ultimately it is for him, in a case involving s.10, to fulfil the requirement expressed in the statute by the words "has considered the report and any representations attached to the report". Those representations are there because the Act imposes a duty upon the reporter, by s.10(3)(b), not only herself to "give due consideration to any representations", but also "when submitting the report, [to] attach them to the report". So the Act makes provision to ensure that the Minister will receive the representations. That is not an idle formality, but in order that he may consider them. His obligation to do so is expressed in the very same form of words which requires him to consider the report itself -- he is required to consider "the report and any representations". The one verb "has considered" has equally for its objects both the report and the representations; it can hardly have a different meaning with respect to the representations from that which it has with respect to the report.

What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s.10, he can be assisted in ascertaining the facts and [21] contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 A.C. 551 at 568-569.

[22] ... If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasize that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task; although s.10(1)(b)(i) refers to the Minister's satisfaction "that the area is a significant Aboriginal area", this expression actually means, as its definition in s.3(1) shows, an "area of particular significance to Aboriginals in accordance with Aboriginal tradition". The purposes of the Act, according to s.4, relate to "areas and objects that are of particular significance" in the same respect. It is consistent with the serious purpose of the Act in relation to objects and [23] areas of a special kind that the consideration given to the report and the representations is required to be at a high level.

In relation to the specific written material about "women's business":

Burchett J

[23] ... Unlike the other representations, except that from the State Transport Minister, the report of Dr Deane Fergie was, as I have said, made available to the Minister. This report raised the claim in respect of the "women's business". However, annexures which formed part of the representation on this subject were deliberately withheld from the Minister. This was because these annexures recorded details of the claimed significance of areas including Hindmarsh Island which, it was said, the relevant Aboriginal tradition required to be hidden from men. The Minister is a man. Secret religious practices are of course not unknown to traditions other than those of Aboriginals. A familiar line in the Aeneid contains an adjuration to the effect: "Keep away, keep away, you uninitiated!" But here it is said the obligation of secrecy goes further, and extends to any detailed information about a tradition. One answer to so wide a claim is simply that a representation is either made or not made. If it is made, the making of it involves a disclosure of the matters put forward as justifying a particular decision. ...

[25] There is no doubt about the public interest in the preservation of confidentiality, where Aboriginal tradition holds sacred a particular site, or information about a particular area, in a sense that would exclude certain persons from the site or from the possession of the information. But Aboriginals, just like all their fellow members of the community, if they wish to avail themselves of legal remedies, must do so on the law's terms. To take away the rights of other persons on the basis of a claim that could not be revealed to the maker of the decision himself would be to set those rights at nought in a way not even the Inquisition ever attempted. ...

The argument about the effect of the Minister's failure to consider the confidential portion of the representations concerning "women's business" proceeded on the assumption that the practical alternatives were limited to his taking the course which he in fact took, or his making himself aware of the secret information. It seems to me that the Minister had available to him a third course. If he thought the Aboriginal women's claim to confidentiality [26] required a departure from the normal way of dealing with the matter, it did not follow that the ordinary rights of other citizens, protected by the express provisions of the Act, had to be jettisoned. He could have asked the Prime Minister to appoint a female Minister or member of the Executive Council to act for the time being on his behalf during the consideration of the report and recommendations. ...

Before the learned trial Judge turned to the matter of the secret "women's business", his Honour had already held the Minister's decision vitiated on two major grounds, one of which was his failure to consider the representations generally. So the additional failure to consider the representation regarding the "women's business" was not the ground of the decision. It does, however, raise important questions, and it demonstrates a further error in the Minister's making of the declaration under s.10.

Black CJ

[18] ... Section 10(1)(c) of the Act requires the Minister to consider both the report under s.10(4) in relation to the area received from a person nominated by him, and any representations attached to the report. In the context of the Act, given the policy of public involvement in the process and the potential gravity of the consequences of granting or withholding a declaration, it is clear that the Minister's duty to consider under s.10(1)(c) is a provision compliance with which is a necessary step in the exercise of power under s.10: cf. Hunter Resources Ltd v. Melville [1988] HCA 5; (1988) 62 ALJR 88 at 94-5 per Dawson J. There is no distinction made by the Act between the report and the representations for this purpose.

[19] ... The Minister must personally consider the report and any representations attached to it. This is because the powers and functions of the Minister under s. 10 (and under ss.9, 12, 13(2), Part IIA and s.26) are specifically excluded from the power of delegation conferred by s.31(1). ...

It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s.10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act -- the explicit requirement that the [20] Minister consider the representations -- that removes the process under s. 10 from the general rule that a Minister is not expected to do everything personally: see the observations of Brennan J in FAI Insurances Ltd v. Winneke [1982] HCA 26; (1982) 151 CLR 342 at 416 adopting Lord Reid's comments in Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40 at 72; cf. O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 11-12 per Gibbs CJ.

[23] ... In any event, the process that counsel on behalf of the Minister sought to put forward as the Minister's "consideration" of the representations was, in my view, flawed. As I have said, the [24] consideration of a representation involves an active intellectual process directed at that representation and again the point must be made that s. 10 is explicit in its requirement that not only must the reporter give consideration to the representations but the Minister must do so as well. A report, written after due consideration of the representations by the reporter, might or might not, "reflect" them. In either event, the section makes it clear that the Minister must personally consider the representations and it is the representations that must be contemplated, not another document which is thought by someone else "adequately to reflect" the representations.

This does not mean that the Minister is denied the assistance of a staff member in the process of considering the representations. A staff member might, for example, sort the representations into categories. He or she might put together all the representations that are in common form so that they can be considered together. In some cases, a summary of technical supporting material, such as legal and financial documents, might be provided and it would certainly be in order, in my view, for a competent staff member to assist the Minister by making sure that supporting technical documents were what they purported to be. I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it.

Examples of the sort of representation that would need to be read personally may be found amongst the 400 or so representations forwarded with, and notionally attached to, Professor Saunders' report. Some of these make important points by the use of photographs and the form [25] of some representations conveys meaning in other ways. Such representations need to be seen to be "considered".

Whilst, then, a Minister may certainly have assistance for the purpose of considering representations, they must be truly considered and the process adopted in the present case, relying as it did upon Ms Kee's opinion about the adequate "reflection" of the representations, was insufficient. I therefore conclude that the trial judge was correct in holding that the obligation imposed by s.10(1)(c) of the Act to consider the representations had not been fulfilled.

O'Loughlin J also examined the Minister's role with respect to two confidential appendices to the report of Dr Fergie which was furnished to Professor Saunders with the supplementary submission of the ALRM [Aboriginal Legal Rights Movement]. The appendices were placed in sealed envelopes bearing the notation that the contents should not be read by men. His Honour concluded that it was essential that the Minister have full details of the claims so that he might appropriately consider them and the weight he should give them. I do not understand his Honour to have concluded that the contents of the envelopes should have been shown to any other man -- only to the Minister, who was the decision-maker.

It must be recognised that there is an inevitable tension between the need for a decision-maker to know the relevant facts in accordance with the requirements of administrative decision-making or in accordance with the requirements of the judicial process on the one hand and, on [26] the other hand, a system of beliefs and traditions originating in times when such external elements were entirely absent.

Successive Aboriginal Land Commissioners appointed under the Aboriginal Land Rights (Northern Territory) Act 1976, all five of whom have been men, have had to deal with problems of this nature. Secret knowledge has been made known to them with the authority of those who are custodians of it. Published practice directions and reasons for decision show that the Commissioners have been concerned to develop procedures to respect and uphold, as far as possible, the traditions and beliefs of Aboriginal people with respect to secret matters. ...

[27] In the present case there can, in my view, be no doubt that the obligation imposed upon the Minister by the Act to consider any representations attached to a report submitted to him for the purposes of s.10(1)(c) is not subject to any implied exception to the effect that the Minister need not consider them if, according to Aboriginal tradition, the matters contained in them are only to be disclosed to a person of the opposite sex. The Act proceeds upon the clear basis that the actual decision-maker, the Minister, must consider the report and the representations attached to it.

Kiefel J

[25] ... The importance of the decision not only to the Aboriginal applicants but to the public at large, the effect it has in relation to potential liability for breach of it and which it might have on third parties or public interests, is recognised in the requirement that the Minister, himself in this case, consider the representations. The obligation is clearly personal to the Minister. It is expressly made non-delegable: see s.31(1).

[26] ... The Minister had read the report of Professor Saunders and likely also the representation of the State Minister. It was not clear whether he had read the report of Dr Fergie and the various letters provided to him. The evidence disclosed that this was the extent of documents physically provided to him. It was not suggested that he had actually read the representations. There were over four hundred of them. They had only arrived on 8 July, the day before the Minister signed the declaration, and the Minister had a busy schedule. The emergency declarations would expire on 10 July 1994. A member of his staff had however gone through them and said in evidence that she had discussed the subject and contents of them with the Minister. His Honour found, however, that her description of the discussion was "vague and nebulous". With respect to the written submission from the Ngarrindjeri women, Professor Saunders provided a general, but not detailed, account of it in her report and provided an opinion upon it. The Minister did not read the contents of the envelope which was sealed and marked with the caution that the contents were not to be read by men. The process then undertaken was one whereby the female staff member read the contents of it and advised the Minister that there was nothing in Professor Saunders' report which did not have a basis in [27] the detailed representation. The issues raised by the Ngarrindjeri women were elevated to importance in Professor Saunders' report and they were, his Honour found, relied upon heavily by the Minister in the exercise of his power to make the declaration.

[29] ... To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

[31] ... It follows from the conclusion I have reached that, in my view, the Minister was obliged to have a full appreciation of the matters put forward as the representation of the Ngarrindjeri women, and it would seem to follow from a reading of Professor Saunders' and Dr Fergie's reports that the substance and detail of what was sought to be conveyed was contained in the envelopes. Counsel for the Minister submitted that, because of the restriction placed upon the persons who might read the material, Professor Saunders became subject to a duty not to impart the material to men. It is to be recalled however that Professor Saunders accepted the restriction only "so far as it lay within my power" and how any such obligation could be maintained or enforced in the face of statutory duties and in particular those affecting the Minister, was not the subject of detailed submissions.

[33] ... A "consideration" of the representations does not in my view require him to personally read each representation. But it may be as well for him to do so, for if his staff are to convey what is contained within them, they must do so in a way which provides a full account of what is in them. If they do not, the Minister will not have considered something he is obliged to, and in this respect the observations of Gibbs CJ. in Peko-Wallsend [Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24], 30 as to what results are apposite. It may vitiate his decision. ...

The failure of the Minister to consider the representations might have been remedied by remitting the matter to him for consideration of the representations and further decision. The failure to notify the public of the basis for the application put forward by the ALRM and the area it was concerned with cannot however be rectified save by re-commencement of the process from public notice onwards. The later submission by the Ngarrindjeri women which as I have said was tantamount to an application itself because of the different area and tradition relied upon, might also be the subject of a statutory process if that is the wish of that group having regard to the matters which they wish to retain as secret.

The judgments of the Full Court contain useful observations on the scheme of the Act, and referred to discussion in the Federal Court in the earlier case of Tickner v. Bropho [1993] FCA 208; (1993) 40 FCR 183; 114 ALR 409.

On 19 December 1995 a fresh application under s. 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was lodged with the aim of achieving protection of the area from construction of the proposed bridge. The applicants were a number of Ngarrindjeri women and some men, and the grounds were similar to those relied on in the earlier application.

The application specifically sought the appointment of a female Minister to handle the application on behalf of the Commonwealth Government. In response to the request, Senator Rosemary Crowley, Minister for Family Services, was designated to act for and on behalf of the Minister for Aboriginal and Torres Strait Islander Affairs for the purpose of determining the application. The Minister, in accordance with the Act, on 16 January 1996 nominated Justice Jane Mathews, President of the Administrative Appeals Tribunal, to prepare a report in relation to the application.

See also (1996) 3(78) Aboriginal Law Bulletin 24.