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

Editors --- "Minister For Aboriginal And Torres Strait Islander Affairs Of The Commonwealth Of Australia v Malcolm McDonald Douglas - Case Summary" [1997] AUIndigLawRpr 15; (1997) 2(1) Australian Indigenous Law Reporter 64

Minister For Aboriginal And Torres Strait Islander Affairs Of The Commonwealth Of Australia v Malcolm McDonald Douglas

Melbourne (heard in Perth), 28 May 1996

Aborigines and Torres Strait Islanders -- Cultural heritage -- application for protection under s. 10 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) -- Role of reporter

Administrative law -- Whether procedural fairness required -- Content of procedural fairness -- Approach where reporter receives "confidential" or traditionally restricted information

Administrative law -- Minister's duty to "consider" personally a report and representations

Administrative law -- Report challengeable via challenge to Minister's ultimate decision

Evidence -- rule in Jones v Dunkel -- Minister's failure to give evidence permits an inference that he failed to consider a report

Mr and Mrs Douglas sought a special lease of land for a crocodile farm. The area was a traditional camping ground of the Yawuru people. On 3 February 1994 the Commonwealth Minister made a 30-day emergency declaration under s. 9 following a letter from the Kimberley Land Council (KLC) referring to an anthropologist's report evidencing a mythological site on the land. The Commonwealth Minister appointed Mr Chaney to report under s. 10 of the Commonwealth Heritage Act. Mr Chaney received a written submission from the Goolarabooloo Aboriginal Corporation (GAC) which referred to a "two snakes" dreaming sites. The KLC submitted a further comprehensive anthropological report by Dr Sullivan, referring to the land containing a site from which mythic heroes commenced a journey.

Before forwarding his report to the Minister Mr Chaney advised the Douglas' solicitors of the general nature of the GAC's submission but did not provide them with copies of the submissions. Mr Douglas wrote to Mr Chaney indicating his ignorance of the land's significance. Mr Chaney informed the State's solicitor of the GAC submission by reading out extracts quickly. The solicitor made numerous requests to see the submission and to be heard on the new allegations that it had previously not adequately investigated. The Commonwealth Minister received the report on 1 April 1994, which recommended the making of a declaration for a substantial period and noting that the State and the Douglas contested some of the claims as to the area's significance. On 5 April 1994 (one day before the expiration of the emergency declaration) the Commonwealth Minister wrote to the State Minister and the Douglas' solicitor informing them of the recommendation and stating his willingness to provide copies of the GAC submission for responses by the following day. The Minister made his decision on 6 April without receiving a response from Mr and Mrs Douglas or the State.

Held:

Decision of Commonwealth Minister set aside for failure to comply with the requirements of procedural fairness and the requirement of s. 10(1)(c) of the Commonwealth Heritage Act that the representations be considered. Parties permitted to examine the KLC's anthropological report and make arrangements to preserve any confidentiality.

Black CJ, Burchett, Kiefel JJ

Whether procedural fairness was denied

[21] ... a common law duty to afford natural justice arose before the Minister exercised the power under the Commonwealth Heritage Act to make a declaration having the effect of severely limiting the uses to which the land could be put for a substantial period ... [22] Individuals whose interests or legitimate [23] expectations may be affected by the making of a declaration ... are entitled, unless the statute excludes the right, to a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests.

[23] ... The content of natural justice or procedural fairness are to be derived in part from a consideration of "the particular statutory framework": Mobil Oil Australia Proprietary Limited v Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-4 ... [24] The object of the Commonwealth Heritage Act is to preserve and protect land and objects which have particular significance in accordance with aboriginal [sic] tradition. And paragraphs (e) and (g) of s. 10(4) recognise that the effect a declaration may have on other persons' interests and the extent to which land or objects might already be considered as the subject of protection are important matters for the Minister's consideration... So understood, to afford them the opportunity to contradict or comment upon issues raised which have the potential to influence the Minister's decision is consistent with and not at odds with the reporting and decision-making process envisaged by the Statute.

[25] ... fairness would demand that they be made aware of and be given an opportunity to deal with information which comes to hand and which is against their interests, at least where it is credible, relevant and of likely significance: Brennan J, Kioa v West (1985) 159 CLR 628.

[27] ... the process undertaken by the reporter is likely to prove a fluid one ... there was no real practical difficulty which prevented the reporter providing the (fresh) material in some form for comment, and in that way affording a hearing. That the nature of such a hearing can be adapted to particular circumstances was a matter stated by Gibbs CJ in FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342, 350.

[28] ... with respect to the aboriginal [sic] groups pressing claims that the land had some particular significance for them, the State and Mr and Mrs Douglas would have expected that the groups' later statements and submissions to the reporter would be provided to them before the report and that material was forwarded to the Minister... There would of course be no obligation to disclose the materials listed above if the State and Mr and Mrs Douglas had earlier been put in a position, by sufficient information, to enable them to make their answer ... [29] the later report of Dr Sullivan was ... of considerable importance ... .

[31] ... it is impossible to conclude that if an opportunity for comment had been afforded the State and Mr and Mrs Douglas they could not have usefully availed themselves of it ... it was not necessary for the State and Mr and Mrs Douglas to demonstrate the effect in fact of the material that was not disclosed to them. [32] The Courts, when faced with a denial of natural justice, do not undertake an evaluation of the chance that it may not, in any event, have altered the outcome.

[33] ... As to a submission that the case involved confidential material ... the question of disclosure here is limited to whether the reference to the myth ought to have been disclosed to Mr and Mrs Douglas and the State's representatives... [34] in our view there should have been disclosure by the reporter in some appropriate way ... it fell to the reporter to give disclosure for the purpose of satisfying the requirements of natural justice, those requirements might well permit disclosure by the reporter subject to strict conditions designed to preserve confidentiality to the greatest extent possible in all the circumstances.

[35] ... urgency cannot generally be allowed to exclude the right to natural justice: Kioa v West, 615; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, 15.

Whether the Minister Considered the Representations

[37] Section 10(1)(c) of the Commonwealth Heritage Act requires that the Minister "consider" both the report and the representations which have been received by the reporter and which are required to be attached to the report. This ... is a statutory pre-condition to the Minister exercising the power to make a declaration: Tickner v Chapman (1995) 57 FCR 461-2, 478, 493, (Norvill v Chapman, 133 ALR 237-8, 253, 268), Tickner v Bropho 40 FCR 209, Hot Holdings Pty Ltd v Creasy (1996) 70 ALJR 286 at 298 et seq ... The Minister's duty in this respect is a personal non-delegable task, and a failure to carry it out may result in the Minister's decision being set aside, as such a failure did in the first mentioned case.

[37] ... The Minister here had, in the statement of reasons given under s. 13 Administrative Decisions Judical Review Act , listed the representations ... [as] `Evidence and other material on which [38] findings were based' ... unsatisfactory nature of this document ... It does not provide that which s. 13 requires.

[40] ... Whilst it may be possible for a Minister to have the contents of representations conveyed to him (cf Tickner v Chapman 464-5, 476-7, 494; Norvill v Chapman, 240-1, 251, 268), there was no evidence here that they were the subject of any discussion with Mr McLaughlin, and no summary of them had been prepared for the Minister.

[40] ... applied the rule of evidence in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ... the failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts ... The question then is what inferences were open on the evidence.

[43] ... that the Minister had insufficient time and did not [44] read the representations gained further support from his failure to adduce further evidence.