Attorney-General for the N.T. Re Matter for an application against Maurice, M. (Warumungu Land Claim)

CATCHWORDS

I . -=--Administrative.Law	- prohibition - Aboriginal -.	Land	- Commissioner	.	-
I

I	- . __
I
!

inquiry into-&original

land claims - writ of-prohibition against

Commissioner on grounds

of bias in the legal sense

- test to

statutory	commission.	to	apply	_ _ -	_ -	. .
I
I
I

I _

-L.

- -Piborie.lnal Land Riqhts (Northern Territory)

Act :1-976-~Ct&&-s.50. .

- - -

No. G119 of 1987 No. G120 of 1987

.- _ .

B O W C.J.,	LOCKHART and SHEPPARD JJ.
SYDNEY

13 APRIL 1987

L	FEDERAL COURT OF AUSTRALIA )

-NEW SOUTH W E S

DISTRICT REGISTRY

)

No. G120 of 1987

GENEF!AL DIVISION

)

BETWEEN

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF

AUSTRALIA

First Applicant

-	AND
THE NORTHERN TERRITORY LAND
CORPORATION

Second Applicant

-	AND
THE HONOURABLE MICHAEL DAVID
ANDEM MAURICE, ABORIGINAL
LAND coMMIssIoNER

i	First Respondent
l

THE NORTHERN LAND COUNCIL and

THE CENTRAL LAND COUNCIL

Second Respondents

AND

THE MUNICIPALITY OF TENNANT

CREM

Third Respondent

AND

THE COMMONEIEALTH

Fourth Respondent

COURT :	Bowen, C.J., Lockhart and Sheppard JJ.
DATE :	13 April 1987
PLACE:	Sydney.

E	MINUTE OF ORDER

THE COURT ORDERS THAT:

I . 1

The application for a Writ of Prohibition against the

- _

-Honourable Mr

Justice Michael David Andrew Maurice,

Aboriginal Land Commissioner prohibiting him from

-	=. :.-‘-further proceeding with the hearing of the Warumunqu

. . Land Claim and from exercising any of

his powers-or

. .

-. .	- - - I - - -	-L-	- functions under section 50 of the Aborioinal Land Rishts	- -	- .
I
I

- -

- . .

::(Northern Territorv) Act 1976 (Cth) in relation30 .that

- - . . . . -

- -

I . -

.- -=-claim

be dismissed and the order to show cause

made in

discharged.

relation

thereto

_ _

m _ :

I .	.2.-- - -	- - The-order to show cause why	a Writ of Prohibition :should	-	:- -
I

l - _ = _ i 1

not issue prohibiting the said Aboriginal

Land::

- _

= Commissioner from further proceeding with the hearing

the Kenbi (Cox Peninsula) Land

Claim and from exercising

any of his powers or functions under section

50-of the

-Aborisinal Land

Ricrhts (Northern

Territorv)

Act

1976

._ -

(Cth) in relation

to that claim be made absolute.

Note :

Settlement and entry

of orders is dealt with

in Order 36

of the Federal Court Rules.

YN trHE

COURT OF AUSTRALIA

, . : NEqrSOUTH WALES DISTRICT REGISTRY

I	GENERAL DIVISION
I

IN THE "ER of an

Application for a Writ of

First Respondent

AND

THE NORTHERN LAND COUNCIL

and THE CENTRAC LAND

COUNCIL

Second Respondents

THE MUNICIPALI!lY OF

TENNANT CXEEK

Third Respondent

I -

Fourth Respondent

IN THE MATER OF THE

WARUMLJNGU LANI) CLAIM and

the KENBI (COX PENINSULA)

LAND CLAIM

Prosecutors

l	COURT :	Bowen, C.J., Lockhart and Sheppard JJ.
i	DATE :	13 April 1987
PLACE:	Sydney .

MINUTE OF ORDER

THE COURT ORDERS THAT:

The application be

dismissed.

I _ : - -

-m:

Settlement and entry of orders is dealt with in Order 36

of the Federal Court

Rules.

, .

, -

1 I N THE FEDERFL COTJRT OF ATJSTRALIA

I	I
i

NO. G119 12f 1987

NEW SOUTH WALES DISTRICT REGISTRY

G R E R A L

D I V I S I O N

I I

BETKEEN:

THE

HONOURABLE

MICHAEL

DAVID

MiDREW

MAURICE.

ABORIGINAL

LAND

CoMMIssrom

F i r s t

R e s p o n d e n t

-m:

THE NORTHERN

LAND COTJNCIL and THE

CENTRFL LAND COUNCIL

Second

R e s p o n d e n t s

Prosecutor

No.	G 1 2 0 nf 1387

BETPEEN :

THE

ATTORNEY-GENERAL

FOR

THE

NOFTHERN TERRITORY OF AUSTRALIA

A p p l i c a n t

THE

HOMOTJPABLE

M I C W L

DAVID

APTDREW

MAURICE.

ABORIGINAL

LAND

COMMISSIO~TER

First. R e s p o n d e n t

THE NORTHERN LANE COTJNCIL and THE

CENTRAL LAND COrJNCIL

Semnd R e s p o n d e n t s

r - P

- CORAM:

BOWEN, C.J., LOCKHART and SHEPPARD JJ.

: 13 APRIL 1987

THE COURT:

This

a most

regrettable

case.

involves

assertions bp Australia that one of the judges of its

the

Government

the

Northern

Territory

own	Supreme Court is

disqualified from continuinu to hear two land claims in his

capacity

as have so conducted himself durinq the hearing

Aboriginal

Land

Commlssioner.

The

judge

said

of one of the claims

that he failed to observe both the appearance and the substance

of fairness and impartiality. It is said that he expressed views

so critical of the Northern Territory Government, a participant

in the bearing

of the land claims, that

a reasonable apprehension

entertained

that

he might

not

bring

an impartial and

unpre]udiced mind to the resolution of the issues involved in the

inquiries.

The first of the matters (G119 of 1987) is the return of an order to show cause made

27 March last. The relief whlch the

Prosecutor. the Attorney-General for the Northern Territorv of

Australia

( "the

Attorney-General" ) , claims, is

order

prohibiting

the

first Aboriginal Land Commissioner, from proceeding to hear evidence or

respondent,

(Maurice

# J . ) , who

the

submissions.

from

making

a report

and

from

maklng

final

recommendations pursuant

to the provisions

50 of the

Aborluinal Land Rishts (Northern Territory) Act 1976 ("the Act") in relation to either or both of two land claims known as "the

S- .

3 .

Warulnunqu Land Claim" and "the Kenbi (Cox Peninsula) Claim". The

application (No. G120 of 1987)

is an application for an order of

review seeking the review of the conduct of the Commissioner for

the purpose of making a decision in relation to the making of	a
report and final recommendations in relation to the two land

claims, and also the decisions of the Commissioner to proceed

with the hearing of evidence and submissions and the making of

l	l	report	and	final	recommendations	in	relation	to	those	claims	and
I
1

the

Commissioner's

decisions

not

disqualify

himself

relation

to evldence was adduced and submissions made in the proceedinq

the

hearing

the

two

land

claims.

However.

for

prohibition (G119

of 1987) and not in the proceeding under

the

Judicial Review Act primarily because there

is a question whether

there is any decision or conduct of the Comissimer revievabls

under

Act.

that

Both proceedings came before the Court as urgent matters on Monday, 3l'March last. At the request of the parties, the Court

heard the matter on

a final basis and on Wednesday,

2 April 1987

reserved its decision. The Attorney-General was supported by the

Northern Territory Land Corporation, a

body corporate continued

in existence by the Northern Land Corooration Act

1986 (N.T.).

the function

o€ which is to acquire, hold and dispose

of real

property.

The

members

of the

Corporation

are

senior

public

servants of

the Northern Territory Government and are appointed

by the relevant Minister

of that Government.

The Commissioner appeared by counsel and submitted to such

order as this Court should make except

an order as t o costs.

. I

3 .

I ,

.c.

The	ground upon which each application is based is that.

I	because	of	things	said	and	done	by	him, the	Commissioner	had
I

created a situation in which a fair-minded member of the public might entertain a reasonable apprehension that he miuht not bring

an impartial and unprejudiced mind to the resolution of questions involved in the Inquiry; see The Oueen

the

v. Matson; Ex

parte Armstroncr (1976) 136

C.L.R. 248 at pp. 258-263 and Livesev

I	v. The N . S . N . Bar Association	(1983) 151 C.L.R. 288 at pp. 293-4.
I

It is to be emphasized

that

actual bias is not alleged and that

the bias alleued is in the nature of

a pre-determined attitude

towards a party, but not a bias based on interest.

The Commissioner is exercising jurisdicticn pursuant to

50 of the Act.

The jurisdiction is administrative in character.

The proceedings are

inquisitorial, not adversarial. Sub-section

50(l) of the Act provides	for the Commisslnner’5 functions. The
function the Commissioner	is exercisinq in relation to the two

claims is that provided for in para.

(a) of the sub-section which

requlres the Commissioner to ascertain whether the Aboricrinals.

on whose behalf the claims are made or any other Aboriginals,

are

the traditional .Aboriginal owners of the land and to report his

flndings to the Minister for Aboriginal Affairs and to

tine

Administrator of the Northern Territory. Where

he finds that

there are .?&originals

who are the traditional Aboriqinal owners

of the land, the Commissioner

is requlred to make recommendations

t o the Minister far the granting

of the land o r of any part, of it

in accordance with s s . 11 and 12 of the Act.

By sub-sec. 5 0 ( 3 )

the Commlssioner,

making

report

connection

with

- .

1 ,

: .

n traditional

land

claim,

strength or otherwise of the traditional attachment by the

claimants to the land and to comment on a number of specified

required

hdve

regard

the

matters.

The relevant matters of comment for present purposes

are those specifled in paras.

(b) and (c) of the sub-section.

which refer to the detriment to persons or communities. including

other Aboriginal groups, that might result if the claim were

1	acceded to, and the effect which acceding	to the claim would have
I

i	on the existing or proposed patterns of land usage	In the region.
I
I
I

The claims are being made

on behalf of F-boriuinals.

in the

I	case	of	the	FIarumunqu	Land	Claim, by the	Central	Land	Council.
I

and,

in the case of the Kenbi claim,

the bTorthern Land

Council. The two Land Councils have

been joined as respondents

in these applications. Both have opposed the Attorney-General’s

application. It was also opposed by the Municipality of the Town

of Tennant Creek, which

interested only in the Warumungu

claim, and by the Commonwealth of Australia. Each

these

parties was separately represented.

In conslderation, it is necessary to refer to the backqround of the

order

understand

the

issues

which

arise

for

matter at some length. The Harumuncru land claim is

a traditional

land claim

t o unalienated Crown land in the vicinity of Tennant

Creek.

The application for the land was made on behalf

of the

FLboriginal

claimants

ths then

Commissioner

(Toohey

J.) on 20

November 1978. The inquiry commenced on

1 November 1982 before

Sir

William

Kearney

who

had

replaced

Toohey

J. as Commissioner.

On 3 November 1982 counsel for the Attorney-General informed the

(

.' .

n Commissioner that on 28 October

1982, 11 areds under claim had

been alienated Commissioner's jurisdiction to hear the claim

by the Crown. This raised

questions

the

to	those areas.

The questions were determined by the Hiqh Court in

1984; see ThX

Queen v. Kearnev; Ex parte Japananqka

( 1 9 8 4 ) 158 C.L.R. 395.

was	held that, except for one area which had been alienated

before the applications were made, all the land, the subject of

the applications, was open to claim and the Commissioner had not

been deprived of jurisdiction in respect of it.

fresh inquiry commenced before Maurice

J..

the present

I	Commissioner. on 4 March 1985.	In passing	it should be mentioned
I

that his appointment as Aboriginal Land Commissioner expires

on 3

October 1987.	a little less that? six months hence. Kaurice J.
has indicated	that it is unlikely that he will accept a further
appointment.

The hearing proceeded on days in March. April. May, June and

July 1985.

Some 4 2 days' hearing were involved.

The hearing in

March and early April took place

at Tennant Creek when Maurice

heard evidence from many Aboriginal claimants.

Two of these have

since died. Maurice

visited a number of areas which were

included

the claim and took evidence at these places. He

visited

large number of sacred sites and attended several

performances

ceremonial

activity

and

displays

ritual

objects.

inspected

a number

camps

and

places

where

Aboriginal

people

resided

and

also

heard

evidence

from

representatives of the Tennant Creek

Town

Council, which is

represented at the hearinqs before

him and on these applications,

A some of the townspeople

of Tennant Creek, representatives

recreation groups, mining companies, pastoralists, the Northern Territory Development Corporation, which is a statutory

corporation, and

number of Government departments.

A large

number of written proofs

of evidence were received and read.

The

transcript of the proceedings now numbers almost

6,000 pages.

Amongst the witnesses called in the

1985 hearings on behalf

of the claimants were six anthropological researchers. Questions

I	arose about production of documents which they had prepared and	a
I

claim for privilege from inspection which was made in respect

them.

Rulings

given

Maurice

J. about

these

matters

were

challenged

unsuccessfully

this

Courr:

and

the

High

Court:

Attornev-General for the Kccthern Territorv

Maurice

( 1 9 8 6 ) 65

A.L.R. 230: (1986) 61 A.L.J.R.

92.

The Hiqh Court gave judginent

I	on 16 December last.

On 12 December 1986, Maurice J. had given directions for the

resumption of included a timetable for the completion

the

hearing

the

Inquiry.

The directions

of all evidence, other

than that in support of the claim. on

23 to 27 February 1987. and

final addresses on jurisdictional questions, the impact on land usage and other issues on 2 to 6 March 1987. At a further

directions hearing held

9 February 1987. the Commissioner

fixed the week commencing

16 March 1987. at Alice Springs for the

inspection

certain

the

documents

produced

by the

anthropologists.

The Commissioner said that he would attend at

Alice Springs to supervise the inspection and resolve any issues arising because of it.

c	.	3 . .	R.
n

In accordance with the directions given on

13 December 1986.

l	the hearing recommenced on
continued until 6 March 1987 when the hearing was adjourned to 21

February

1987

in Darwin and

April 1987.

It is because of statements made by the Commissioner

during

the

resumed

hearing.

particularly

statements

made

and 25 February 1987, that

the

Attorney-General

brings

these

proceedings. If the

Attorney

General

successful,

the

Commissioner will be prohibited from continuing with the hearing.

We shall come to the matters which are relied upon in

a moment.

but before we do

so, it is necessary to say something

of the

history of the Kenbi Land Claim.

The hearins

of the Kenbi Land Claim is not nearly

so far

advanced as the hearinu of the Warumunqu Land Claim.

It tco has

been the subject of proceedings

the Hiqh Court. The claim is

in respect of an area of land in the Cox Peninsula near Darwin.

The claim was made by the Northern Land Council

behalf of

certain Aboriginals on

20 March

1979.

"hi! land to which claim

under the Act may be made does not include land in

a "town".

"Town" has the same meaning "as in the Territory relating to the planning and developing of towns and

law

of the Northern

the use

of the land in

or near towns"; see S .

3(1) of the Act.

Regulation

the

Plannina

Reuulations

made

the

Administrator of

the Northern Territory

under the Plannina Act

1979 (N.T.) provides that the areas

of land specified in Schedule

3 to

the requlations were to

be treated as towns. Those areas

included most

the land in the

Cox

Peninsula which was the

subject of the claims.

The reaulation came into operation on 3

August

1979.

The matter

came

before

the

then

Commissioner.

I .

n Toohey J.,

on 20 December 1979.

He held that that part of the

I	peninsula specified in the Schedule was not available to be
claimed.

The critical question which arose for his decision was

whether it was permissible

to inquire into the reason why the

Administrator made the regulations under the Plannincr Act,

or to

impute bad faith to hi~n. It was submitted that the Commissioner.

contrary to his decision, should have inquired into the question

whether regulation

5 of the Planninq Resulations was made for the

purpose of defeating the claim by the Aboriginals to the land

described in

Schedule 3 ,

or of converting that land into land

which was

not within the description contained in S.

50 of the

Act. It was

submittec?

thzt

the

?natter

should

rez-itted

the

Commissioner with

a direction that he inquire into these matters.

The High Court held that the Commissioner was bound to embark on

such an inquiry; see The Oueen v. Toohev;

Ex parte Northern Land

Council (1981) 151 C.L.R. 170.

I	It	may	be	observed	in passing	that	in	the	judgments	of	the
I

High Court are to be found some further detail of the facts which

underlie this "tom" of Darwin occupies

matter.

Gibbs

C.J. said (pp. 175-6) that the

an area

of about 142 square kilometres.

The Cox Peninsula

is separated from Darwin by an arm

of the sea.

Although the

kilometres from Darwin by sea, access by road is much longer and

more difficult. Much of the Peninsula is vacant land. Its area

nearest

point

the

Peninsula

only

six

about

800

square kilometres.

fact the effect of the

reuulation was

to specify land adjacent to the "town" of Darwin

. .

10.

to be subject to the provisions of the Planninu Act

as if it were

I	part of that town. The area of land involved, including the	Cox
I I

Peninsula, was

4,350 square kilometres.

Maurice J. gave directions for the resumption of the hearing

of the Kenbi claim. It was to

have recommenced on 30 March 1987.

The issue which he was to determine initially was the issue which

had been the subject of the proceedings in the High Court, that

is, the validity of the regulation. In order to facilitate the

hearing. he directed the filing of a statement of the claimants’

claim.

This

statement

was

filed

9 October 1986. It

unnecessary to refer to the detail

of it.

is enough to say

that, amongst regulation was not made bona fide and for the purposes of the

other

things,

there

are

allesations

that

the

Plannins

Act, pursuant to the Act. It is likely that the hearing of this

but

for

the

ulterior

purpose

defeating

claim

aspect of the claim will involve some of the members

the

Ministry of the Northern

Territory, who were in office at the

time the regulation was made, being called to give evidence.

At all material times the political party

in power in the

Northern Territory has been the Country Liberal Party. On 18

February 1987, shortly before the Warumungu Land Claim hearings

were t o

resume, it was announced that there would be

a general

election in the Territory on

7 March 1987. The election campaign

had

therefore

commenced

when

the

Commissioner

resumed

the

Warumungu Land Claim hearings on

23 February 1987.

is now appropriate to come to the specific matters

I . .

11.

c evidence upon which the Attorney-General relies in support

of his

case. Although the events before and afterwards have their

importance,

a principal strength which the Attorney-General's

case has derives from

what the Commissioner said on 25 February

1987

in relation to the evidence of

Mr. Hockey, who is

pastoral inspector in the employ of the Department

of Lands in

the Northern Territory.

The

evidence was given on

25 February

1987. Towards the end of Mr. Hockey's evidence, the Commissioner

said :

"There are a couple of remarks

I want to make.

First of

all, if what you

(Mr. Hockey) have said

fair account of what has transpired in

relation to this station over the past few gears, then you have shown some considerable courage in coming here and speaking as frankly as you have.

I do not

make

these

remarks

without

any

background.	I	have heard during the course of
this inquiry	a	lot of evidence about Singleton

station,

including

evidence

from

Mr. Heaslip

himself and I

have seen other pastoral

mspection

reports from previous years. Pastoral inspectors

perform an important

public

function.

The

pastoral holdings in the Northern Territory belong

to the people of the Northern Territory. They are

leased on

interest in the enforcement of those conditions

and as well in the matters of land degradation and

conditions.

The

community has an

disease

control,

which

the

inspectors

the

ordinary

performance

their system of policing covenants

duties

concern

themselves with.

The

by stock inspectors and oversighting the use and

management of the land because

the public

interest and the other matters

have mentioned

through the appointment

of pastoral inspectors and

inspection by

them

the

various

stations

throughout

the territory and the preparation of

reports by them is

a very important matter. It is

quite

wrong

for

anyone

interfere

with

pastoral inspector in preparing his reports either

by creating circumstances where

he feels

he is

under pressure or may feel he

is under pressure,

as seems to have .been the case

here, or by asking

him to make changes to his report. These reports

should not be vetted.

The inspectors should feel

uninhibited in the free and frank expression of

their observations and opinions. They should be

expressed without fear or favour.

If Mr.

Hockey

..-,

12.

were a police officer

in uniform, then there would

be considerable outrage at

what he has

said has

occurred in the

way

of interference with the

my view to require 3 months notice and the joke becomes a giant farce

preparation of pastoral inspectors' reports in the of pastoral inspection in

the

inspection

can

cancelled

the

pastoralists at the last minute.

I must sav that

the

evidence

which

vou

have

qiven

seriouslv

disturbs

me and it raises questions about some

form of patronaae aoinq on in this Territorv.

You

are in a sense under my protection now. If you feel at any time after today that you are being discriminated against in the course of your employment as a result of the evidence you gave and the views you have expressed, then do not

hesitate to bring that to the attention of

Mr.

Reeves who is counsel assisting in this matter and

I shall treat it as a potential contempt and deal

with it	accordingly. Thank you for coming,	Mr.
Hockey?"

The emphasis is added. We shall say something of

Mr. Heaslip and

Singleton Station in

a moment.

The important sentence in emphasized, namely, "I must say that the evidence which you have

that passage is that

which we have

given seriously disturbs me and

it raises questions about some

form of patronaae going on in this Territory"

It is qualified. They open with the proviso,

observed

that

his

Honour's

comments

are

' I . . .

if what

you

(Mr.

Hockey) have said is

fair account of what has transpired

.. .

The critical sentence goes no further than to say that

Mr.

Hockey's

evidence

"raises

questions

about

some

form

patronage

'I .

In Grder to comprehend fully the significance of what the

7%.

Commissioner said one must have

an understanding of the nature

and purpose of

Mr.

Hockey's evidence. He was called by the

Singleton Pastoral Co. Pty Limited, which owns

the lease of the

land occupied by the Singleton Station,

in connection

with the

case it was making based on detriment it would suffer if the

claim were granted, not because of any

loss of land over which it

has a lease, but because it would be likely to lose the right to

graze cattle on a commonage adjacent to its own land.

The claim

that the company would suffer detriment in turn gave rise to

questions whether the company might not be in danger of losing

its lease for failure to comply with some of the conditions of

it.

In the course of his evidence,

Mr.

?!ockeg

described an

inspection

the

property

had made.

said

that

the

inspection was

routine one for the purpose of ascertaininq

whether a

"default notice" had been complied with. Mr. Hockey

was accompanied by his superior.

Mr.

Gargan, and by

Mr.

Buckley, who is the solicitor for the company, Singleton Pastoral

Mr.

Secretary, South, in the Northern Territory Department of Lands.

He is in charge of the Slice Springs region which encompasses the

whole of the southern region of the Northern Territory including

Tennant Creek.

Gargan

holds

the

office

Assistant

Co. Pty

Limited.

Mr. Hockey described the presence of

Mr.

Gargan and

Mr.

Buckley as unusual in that it had never happened before. He said that Mr. Heaslip. who apparently controls the company, Singleton

Pastoral Company Pty Limited, did not want

him on tine property.

. .

; . "\,

14.

'1-

It was his fourth attempt to

go there.

Mr. Heaslip was also

present with his manager.

At all material times Mr. Heaslip has

been the President of the Country Liberal Party in the Northern

Territory.

Mr.

Heaslip and his manager followed

Mr. Hockey's

car in

which were Mr. Gargan and Mr. Buckley. Counsel asked Mr. Hockey whether he felt under any pressure. He said that it was at the back of his mind that it was an unusual sort of inspection "with

all those people around".

He said that it had never happened

before, although he had been on every property in the Northern

Territory.

The Commissioner intervened by asking the following

question, "Not only unusual - extraordinary and unprecedented

your experience. Would not that be so?"	Fr. Hockey said t h t it
would.

Mr. Hockey was asked whether

was requested to tone his

report down after it had been compiled. He said,

"A couple of

minor points, yes". He

said that such requests had become "more

frequent in the last couple of

months than it used to be".

said he

repairs and improvements to the property must be given to Its

manager, mentioning him by name. This statement was not approved

had written in the report that full credit for the

by Mr. Gargan, but only to the extent of deleting the reference

to the manager's name. After the report was altered, it still

contained a statement giving credit, but to the company rather

than to the manager himself. Mr. Hockey could point to

no other

alteration

what

he had

originally

written.

he said

himself, the correction was

a minor one.

15.

Mr. Hockey then referred to

a code of conduct

which required

pastoral inspections to be notified property owners three months

in advance

of the date fixed

for inspection.

Mr. Hockey gave extensive evidence of

his inspection of the

Singleton

Station,

none

which

appears

have

been

contentious. He was

asked

whether

he had

considered

the

property

in the context

of a grant of a perpetual lease. He said that the

lessee had applied to convert the title to perpetual tenure and

that he had hoped to

there on

12 and 13 March, but that his

Inspection had been cancelled by

Mr.

Gargan.

Mr.

Hockey said

that Mr. Gargan gave as his reason for the cancellation that

“would not insult Mr. Heaslip by asking would

it be permissible

to do an

inspection of his prcperty at that time when there was

an election".

The Commissioner then asked a series of questions

which included the following:-

“Was Mr.

Gargan the one who asked you

to change

your

report? ---That is correct. He was also at

the Inspection.

And he	was present at the inspection? ---That is
correct.

He was

the person whose presence

you found

little intimidating?

---No,

no, not him. It was

the solicitor Mr. Buckley.

I see? --- And having Mr. Heaslip trailing along in another vehicle behind when there was probably no

need for it.

Who was it who gave you

the instruction that you

were to give

months notice before you carried

out any pastoral inspection? ---That was

a result

the

discussion

between

the

Cattlemen‘s

Association and the then Minister

for Lands. Mr.

Hatton. following the report

I prepared on Bond

Springs for the perpetual tenure. The Cattlemen‘s Association took it up that, you know, the reports were - some of them were probably not the way they

: .

1 .

16.

should have been and then this was brought

in".

Mr.

Hockey went on to explain

what

he meant.

His

Honour's

questions continued:-

"That was following an inspection of Bond Springs?

---For perpetuity, which I recommended against.

And that is also Mr.

Heaslip's property? --- That

is correct.

I have hardly ever spoken

- - -

Has that come out in writing?

--- Not that it was

the result of Bond Springs but it all flowed

on,

yes.

Yes, we have got

a code of conduct.

You can put two and two together, but this code

conduct that came out came out in writing? ---Yes,

and it has proved to be unworkable".

After some further questioning, Mr. Hockey said that

he did

not think that the property had reached the standard required

under the relevant legislation to enable it to be eligible to

converted to perpetual tenure.

He developed reasons

f o r this.

His evidence in chief then concluded. There is nothing in

his

cross examination which bears on the matter

now in question.

The points made by the Commissioner in what February 1987 may be summarized as follows:-

said on 25

(a) If

what

Mr.

Hockey

said

were

correct,

he had shown

considerable courage "in coming here and speaking as frankly

as you have".

(b) the

Commissioner

did

not

make

the

remarks

without

any

background. He had heard

a lot of evidence in the Inquiry

17.

about Singleton Station including evidence from

Mr. Heaslip

himself and

had seen other pastoral inspection reports

about it from previous years.

an important public function.

(d) The

community has

an interest

the

enforcement

conditions

leases as well as in the matters

land

degradation and disease control.

(e) It is wrong for anyone to interfere with

a pastoral inspector

in preparing his reports either by creatlng circumstances

where he feels he is under pressure or may feel he is under

pressure, "as seems to havs beer. the case here", cr by asking

him to make changes to

his report.

(f)	Inspectors should feel uninhibited in the free and frank

expression of their observations and opinions.

(g)

If Mr. Hockey were a police officer in uniform, there would of a report.

(h) It makes

joke of the system of pastoral inspection

require three months' notice to be given. The joke becomes

giant farce if the inspection	can	be cancelled by the
pastoralists at the last minute.

l	(i) There then followed the statement that the evidence which Mr.

a	-
. \

18.

Hockey gave seriously disturbed the Commissioner and raised

questions about some form

patronage going on in the

Territory.

Cj) Mr. Hockey

was

a sense

under

the

Commissioner's

protection. If he felt at any time thereafter, that he was being discriminated against in the course of his employment as the result of the evidence he gave and the views he expressed, he was not to hesitate to bring that matter to the

attention

counsel

assisting

the

Tribunal.

the

Commissioner would treat it as potential contempt and deal with it accordingly.

Upon the basis

of ths whole of this material. counsel

fc~r

the

Attorney-General has submitted

that

ordinary fair minded

observer,

with

full

knowledge

the

facts.

would

have

reasonable apprehension that

the Commissioner was biased against

the Government of the Northern Territory. But counsel did not rely only on what transpired on 25 February 1987. In his

submission it was relevant,

in determining whether

case of

reasonable apprehension of bias had been made out, to take into

account events, both before and after	25 February 1987, which
bore on the subject.

The principal event which occurred prior

to 2 5 February 1987

was the making of another statement by the Commissioner

the

previous day, 24 February 1987.

The Commissioner began that

statement with the words. "Now. before we begin

I have got some

remarks I

want to make. Perhaps they amount to two and a half

, S

19.

years' frustration", repeated requests

The

Commissioner

mentioned

length

he	had made for information concerning what

counsel

assisting him

had

described

the

socio-economic

implications for the town of

Tennant Creek of a

grant of title

under the Aboriqinal Land Rights Act

up to the

1970

town

boundaries. Amongst other things,

said that

it had been

apparent to him since before the claim began back in March

1985

that the effect of acceding to parts of it might have dramatic implications f o r the future growth and development of Tennant

Creek. He ringed on its already inadequate boundaries by land the title to

continued, "The picture sprang to mind of

a town

which was governed by the provisions of the Lands

Rlcrhts Act".

The important Territory town and then posed

Commissioner

also

said

that

Tennant

Creek

was

a number of questions

concerning the effect on the town's economy, and that of the

Territory

generally, if

the

claim

were

acceded

its

entirety. He said that, apart from the evidence of

town

planner, which was of little, if any value, practically

no effort

had been directed to assisting him on these matters. He added:-

"No approach to the resolution of the myriad of

competing interests involved in this claim has	so
far been offered. We shall have to consider it

piece by piece, every little culvert and

drain,

every borrow, pit

and bore; every possible future

requirement of

town of

3800

will have to be

considered separately. There is no hope

that the

pieces in this jigsaw will fall nicely into place

so that at the end a harmonious pattern emerges".

He said that his concern about these matters should have been

obvious from the pleas

he had made for the participants to

try to

, -

20.

reach some compromise. He then said:-

"There is

one blueprint for Tennant Creek which is

arguably very bleak. The Northern Territory has

offered no

alternative, at least none that

I am

aware of. Still, that is typical of its approach

to all

of the claims under the Land Rights Act in

which I have been involved. It has pretensions to new society, yet its actions consistently betray an underlying hostility to the basic principle of land rights for a dispossessed people. It does nothing to acknowledge the moral strength of any

be a government for all the people in the Northern

of their claims. It is this head in a

hole in the

ground attitude which continues to divide the

community and which accounts for the absence

policies

directed

towards

accommodatinq

the

special

needs

and

aspirations

Aboriginal

territorians.

Why have not we been able to strike some balance?

Because with the

possible

exception

the

Warumungu people, nobody is seriously looking for

it. Brinkmanship

anrl

delay is the name of the

game.

So be it, people get the uovernments they

deserve.

I am not

now going to extend the time

€or

completion of evidence and submissions

t o

allow the Northern Territory time to redress what

I am	sure has been obvious to it throughout this

inquiry.

has had every opportunity to present an alternative blueprint to that which the claim

itself

proposes

behalf

the

claimants.

Apparently it has none.

As I have said, that

suspect

because

has no

vision

for

incorporating

Aboriginals

into

the

Northern

Territory of the future except on its terms, and

will

not

searching

amongst

the

materials

accumulated

during

this

inquiry

prepare

comments for the Minister".

The emphasis is added.

It may be said the Commissioner felt a sense of frustration.

passing that there is little wonder that

The	transcript

does not disclose any reaction whatever to his remarks by any

counsel, including counsel for the Northern Territory Government.

, .

21.

Instead, counsel proceeded to get

on with the business for the

day. The reaction to what the Commissioner said to Mr. Hockey the following day was similar. Immediately he

I I

said what he did

Mr.

Hockey, counsel for the Northern Territory Government

asked Mr.

Hockey a question about some aspect of the detail of

his	evidence. Mr. Hockey then departed. No objection to what

the Commissioner had said was raised by counsel

for the Northern

Territory Government. There was thus absolutely

no reaction to

either statement by counsel for any party.

On 26 February 1987, Mr. Gargan was called to give evidence. His evidence continued over until 27 February 1987.

He referred

to a draft Tennant Creek plan which was not

"a finished product".

He said that

it was correct to say that there was still no plan

or	strategy about where Tennant Creek was going. He said the

matter could drag on for some time. but that was

nor;

his

intention.

He added that

he was sure the Government would be

disappointed if

he did not proceed to finalize that

as a matter

of some priority. He had been told by the Chief Minister to get

it done as soon as

he reasonably could. Mr. Gargan said that the

day

he gave his evidence was the first day he had heard

requests for information about Tennant Creek which were then

almost two years old.

He did not

know whether a report of an

earlier discussion about the matter before the Tribunal had been

communicated to the Government

or not.

The	press became aware of what the Commissioner had said

about patronage on

25 February.

On 26 February 1987 a report of

it appeared in the daily newspaper circulating in the Territory,

22.

.	the Northern Territory News. The matter was also the subject	of
reports in television and radio news broadcasts. Against the

background of the coming election. the natter was soon well out

of	hand. The Leader of the Opposition called upon the Chief

Minister, Mr.

Hatton, to stand down pending an inquiry into the

system of pastoral inspections

in the Northern Territory.

This

was widely publicised. On

March

1987,

the Chief Minister

responded in a statement in which he was reported as saying that

the Commissioner had allowed the Warumungu Land Claim to be

turned into "an election beat-up".

Mr.

Hatton said that he

found it strange that the Commissloner had called f o r an urgent

response (about plans for Tennant Creek) soon after the election

was called.

He also drew attention to the fact that counsel

assisting the Cominissior.er was

a Labor Party

candidate

in the

election. The same issue of the newspaper reported

a statement

by the Commissioner in which	he said that the Chief Minister had
been impudent and unfair.

Counsel assisting the Commissioner is

a Mr. Reeves.

He is

the President of the Northern Territory Branch

of the Australian

Labor Party and was the candidate who stood against the Minister

for Lands at the election.

On 3 March 1987 the Commissioner called

a meetins of counsel

for the parties in the Warumungu Land Claim in his chambers.

Counsel were handed an

aide-memoire which the Commissioner had

prepared in advance. It said that the Commissioner was not

prepared to go on with the Inquiry with the cloud left hanging over him by the Chief Minister and the newspaper.

He referred to

, .

2 3 .

a number of imputations which he

said were open as a result of

what the Chief Minister had said and dealt with some other

matters. He said

that neither he, nor any member of his staff.

had called in the media to report what

he had said after Mr.

Hockey's evidence. This was

a reference to the playing back to

the media of the official tape recording made

of the proceedings

February. Some of the media had requested this

so that

their reporting of the day's proceedings would be more accurate.

The Commissioner Attorney-General a letter or statement "made in open session.

then

said

that

he wanted

from

the

generous, fulsome" and to the

ef€ect O C

a draft which contained

statements in which the Attorney-General dissociated himself from

comments in the

newspaper

referring

t o his conduct

the

Inquiry, accepted unreservedly that neither the Commissioner nor

his staff sought the attendance of the press to hear evidence,

stated that he did not believe that anything the Commissioner had

said or

done in the course of the Inquiry had been in any way

influenced by the fact that there was an election at the end of the week and that he had confidence in the Commissioner fairly

and impartially to perform	his functions in relation to the
Inquiry.

On 4 March 1987. Mr.

Reeves was interviewed on television.

Mr.

Reeves said that the Attorney-General had abrogated

his

responsibilities because

he had the responsibility to defend the

judiciary in the Territory. He said, "I think this Government is

l	trying to cover up the whole issue. that they have got	a
responsibility to defend the judiciary and they have got	a

responsibility to withdraw the remarks because they

know, as

everybody does, that they are untrue".

went on to say

how

difficult it was for the Inquiry to proceed when the head of the said that. if the Attorney-General were unwilling to dissociate himself from the remarks, the Attorney-General should show cause

Government, which was one of the parties, was attacking the

why the Government thought the Judge

"was politically biased and

therefore unable neither; they didn't put up and they didn't shut up. They shut

continue

act".

added, "They did

the Judge

up".

Mr. Reeves said that the Attorney-General had

done that assisting the Tribunal, he was pursuing political ends. He said

suygesling

that, in his capacity

counsel

that he

had discussed Mr.

'dockey's evidence vith the Leader of

the

Opposition.

He denied

that

there

was

any

conflict

interest.

The interview concluded

with

a statement that the

matter could be resolved by Mr.

Hatton withdrawing his remarks.

He suggested that he could say that they were made

in the heat of

an election campaign and,

if he wanted to answer the allegatlons

made by

Mr.

Hockey, he could simply have his counsel appear

before the Commissioner to do

s o .

What was said been as relevant

by Mr. Reeves durmg the interview may not

have

as it appears to us to be, if it were not for a

statement made by the Commissioner during the course of the

proceedings on

23 March 1987 in whlch he said, "I did authorize

counsel assisting to take part in

radio interview for the

purpose of trying to remedy the damage done to this Inquiry by scandalous public remarks made by the Chief Minister and other

1 -

25.

remarks attributed to him in the Northern Territory News on the

Monday

before".

The Commissioner

did

not

seek

correct,

qualify or disown anything that Mr. Reeves had said during the

interview.

We shall refer to other matters in the Commissioner's

statement a little later.

The election was held on Saturday, Government was returned. In

7 March

1987 and the

a letter dated

9 March

1987, the

Attorney-General wrote to the Commissioner

with reference to what

he had said in his aide-memoire of

3 March 1987.

The Attorney

said that

he regretted that

he could not meet his Honour's

requests and could not provide him with

response in the terms

which

had

been

requested.

said

that

the

issue

the

integrity of Commissioner was of the utmost importance to him. He said that

the

ju.'i,ciitry and of the

Aboriginal

La?lCi

he rjished to study the transcript carefully, consider all the circumstances and seek the advice of one

or more senior counsel.

He would then provlde

a considered reply.

On 9 March 1987 the Commissioner wrote to the Attorney saying

that the Commlssioner, to stand down from active participation in the work

only

proper

course

was

for

him,

that

is, the

of the Supreme Court pending the Attorney's consideration	of the
Chief Minister's allegations. He said the Chief Minister had been notified accordingly.

On saying, amongst other things:-

13 March

1987,

the Attorney wrote to the Commissioner

2 6 .

" 2 .

that

neither

you, nor

your

associate

nor

your

secretary

sought

the

attendance of the media representatives to

hear evidence.

3 .

accept your assurance that nothing

you

have said or done

was influenced by the fact

that there was

an election pending.

It is with great regret that

I must inform

you that I have

instructed

those

representing me to ask

you

to stand down

from

the Waramungu Land Claim. Upon the

advice

have

received,

the

public

can

hardly

fail

entertain

reasonable

apprehension that

you might not bring

unprejudiced mind to the resolution of the

questions involved in this matter".

So far as the evidence discloses, no further mention was made

anyone of the Commissioner standing aside

from the Supreme Court.

On solicitor for

16 March the Northern Territory in which he said that

1987 the Commissioner wrote

letter to the

would determine, as soon as possible,

a date

for the hearing of

the

application

that

he not

sit. He also

said that, to

facilitate the proper discussion

the issues involved in

the

application. he

directed the Attorney-General, no later than

March, to have delivered to him, and served on the solicitors for

all other parties,

a statement in writing of the facts upon which

the Attorney relied

In support of his application.

During the week of

16 March 1987

the Inquiry had moved to

Alice Springs where the inspection of the notes made by the anthropologists was conducted. The Commissioner was not sitting,

but was available in his Chambers. On the morning

of 17 March

senior counsel for the Attorney-General made an attempt to see

27.

the Commissioner for the purpose of having a date fixed for the

hearing of the application. There is on the face of the evidence

a conflict as to what precisely happened in the Alice Springs

Court House

on that day.

There is sworn evidence given by the

solicitor

for

the

Northern

Territory

Government.

There

are

statements made in

letter written by the Commissioner on

March which are in conflict necessary to attempt to resolve this conflict.

with

that evidence. It is not

If it were, such

resolution could only come about after

a hearing in which those

present were called to give evidence and cross-examined,

hasten to add that we

do not include the Commissioner as being

amongst those who could qive relevant evidence. He was not

present. The

statements

his

letter

are plainly

made

information conveyed

to hin by others, particularly counsel

assisting him,

Mr. Reeves.

The next matter

of consequence occurred on

March 1987.

There was then a sitting of the Inquiry at which

all parties were

represented. The proceedings opened with

statement by the

Commissioner in which

made reference to the history of the

matter, to a number of letters and to what had been said about

the controversy in the press. Eventually the Commissioner said

that he did not intend to allow the occasion to be used to create

public misapprehension about the integrity of the Inquiry where

none existed.

He said that he intended strictly to control what

I	occurred. He added:-

"I take the view that the Attorney-General

has no

right

make

the

application,

that

unsatisfactory that I

should be put in

a position

where I am seen to be

sitting as

a Judge in

my own

28.

cduse, and that counsel for the Attorney should be

very

wary

what

he says

publicly

this

occasion".

The Commissioner then took appearances. Counsel assisting

the Inquiry submitted that counsel for the Attorney-General

should be required to state in what precise respect it was

alleged the public might apprehend that the Commissioner was

biased and in respect of precisely what questions it was alleged

that that Commissioner directed counsel

bias

might

operate.

After

some

discussion

the

for the Attorney-General to provide

the particulars as soon	as	possible.	He stood the matter over
until 2p.m.

The following statement:-

particulars

were

furnished.

They

opened

with

the

' ' . . .

in the circumstances of certain comments

which have been made by the Commissioner

in the

conduct of the Inquiry,

fair minded observer

might entertain a reasonable apprehension that the

Commissioner

may

not bring an impartial and

unprejudiced mind to all of the questions involved

in the Inquiry".

There followed detailed reference to the transcript at pages

which have been referred to earlier in these reasons and the

remarks made by the Commissioner set out in his aide memoire

of 3

March 1987. Reference was made to the fact

that the remarks were

made

during

the

course

of an election

campaign.

Also

particularized were questions in the Inquiry which involved the Covernment

the

Attorney-General's

view

relevant

the

I	Northern Territory. These included detriment suffered by the

Northern Territory generally, the people

of Tennant Creek and the

proprietor of the Singleton pastoral lease. Reference was made

also to the bona fides of the Northern Territory Government in

number of respects. These concluded

with a general reference to

the bona fides of the submissions of

the Government in relation

to all issues

the Inquiry.

The statement said that the

Attorney-General did not concede that the reasonable apprehension

needed to relate

to an "issue" in the strict sense.

When proceedings resumed after 2p.m.. the Commissioner made further statement.

He said, without hearing counsel, that the

particulars given did not comply

with the direction

he had given.

He went on to give reasons

for this view. He then referred to

the fact that the application was

??et made by a private litfgant

but by the Attorney-General for the Northern Territory. He said that the Attorney-General did not allege actual bias, only an apprehension of bias. He continued:-

"He (the Attorney-General) is uniquely placed

the First

Law Officer of the Northern Territory

and as

an Important participant in this Inquiry

representing interests other than those

the

claimants

dispel

once

any

public

apprehension of bias.

This he can do by asserting

emphatically

and

publicly

that

has

every

confidence in me

to brlng an impartial mind to

bear on the issues which it is for me to resolve

in the course of this land claim Inquiry. Indeed,

as he alleges no actual bias on my part, he has a

clear duty to

do just this and. I think it may be

assumed,

that

the public

he represents will be

most receptive to such reasurrances".

The Commissioner referred to the statement

he had made about

requiring further information concerning the Government's plan

, .

30.

f o r Tennant parties to the Inquiry wished him to remain. He dealt with

Creek.

referred

;he fact that all other

his

remarks made in relation to Mr. Hockey's evidence. He said the

evidence was "at most a side wind in the whole Inquiry".

He said

it was unlikely to have the slightest effect on any comments he

might make in relation to the use by the Singleton Station of

commonage reserve.

He said it would

be for the Minister for

Aboriginal Affairs to resolve that matter, not for

him.

added, "I

do not resile from the concerns I expressed about the

code of

conduct, but as it

turns out it has nothing to do with

the issues that confront me in this Inquiry".

The Commissioner then referred to some further matters and to

private

correspondence

between

himszlf

and

either

the

Attorney-General or the solicitor for the Northern Territory.

said that these letters were irrelevant. but offered them	for
inspection.

He concluded his remarks as follows:-

"I dismiss the Attorney-General's application. I

have the utmost confidence in his ability as the

First Law Officer in the Northern Territory,

with

all the resources available to

him, to dispel any

concern about my impartiality in this Inquiry.

the

Inquiry

will

adjourn

complete

the

anthropological evidence on 21st April

of this

year. I thank you for attending".

The Commissioner then adjourned.

is apparent that

he had

dismissed the application without hearing any submissions at all

from counsel for the Attorney-General.

31.

The following day;24 March

1987, there was delivcred to the

Commissioner

a letter from the Attorney-General.

The

letter

referred to

particulary to that part of it in which the Commissioner had said

that the Attorney-General had not made the appliction on the

basis of actual bias and ought to dispel any public apprehension

what

the

Commissioner

had

said

on 23 March,

by a public statement.

The letter continued:-

"If

I were satisfied that there was

no actual

bias, I would

have considered adopting the course

which your Honour suggested that

I make a public

statement

to dispel concern about your Honour's

impartialilty

this

Inquiry.

I were

satisfied that there was conclusive evidence of

bias on the

part

your

Honour,

dif€erent

questions

would

have

arisen.

However,

overriding concern has

been to protect the public

esteem

respect

and

the

for

judiciary.

Consequently, I have taken the view that it would be unseemly for me publicly to pry into the mind

of any judicial officer

as to whether

he or she is

in fact biased.

respectfully refer you to de

Smith: Judicial Review of Administrative Action.

4th edition, 261

and.the cases there cited. Even

if	the evidence conclusively established actual

bias,

I consider it proper and fitting that

should confine myself to the submission that

reasonable

apprehension

bias

had

been

established.

decision.

therefore,

not

pursue the questionof actual bias does not either logically or in fact involve a conclusion that actual bias does not exist.

The objective evidence available to me is set out in the Statement of Facts filed in support of my

application and that which has been said and done

since the document was filed.

I remain

the

view

that

all

that

evidence

including

your

Honour's refusal to hear my Counsel on the matter

constitutes a basis

for reasonable apprehension

bias.

I cannot,

therefore,

accede

your

Honour's

suggesLia1

Lhat

I make

public

declaration to the contrary.

I have not felt It appropriate in this letter to

address the other matters raised by

you

which

relate to

actions as a litigant rather than to

my actions as first law officer".

3 2 .

That concludes the account

of the evidence. Me turn to the

resolution of the questions which arise for decision.

There is no suggestion in this case that the Commissioner disqualified from hearing the land claims because

of some direct

pecuniary or personal interest in their outcome. The case is one of reasonable apprehension of a bias by reason of a pre-judgment

of an issue or of a generally adverse attitude towards a party.

The	relevant principles governing disqualiflcation have been

expounded in principle was stated in Livesev

many

cases

and

are

variously

expressed.

The

The !I.S.bl.

Bar Association

(151 C.L.R. at pp. 293-94) as follows:

"That principle is that

a Judge should not sit

to hear a case if in

all the circumstances the

parties

the

public

might

entertain

reasonable

apprehension that he might

not

bring

an impartial and unprejudiced mind to

the resolutlon of the question involved in

it. "

See also The Queen v .

Watson Ex parte: Armstronq

136 C.L.R. at

pp. 262-4 and Murphv v. Lush (1986) 60 A.L.J.R. 523.

The principle in question has been applied in the past, to

commissions or tribunals

which were not courts.

See, for example,

The

Queen

v Commonwealth Conciliation and

Arbitration

Commissioner: Ex

Parte The Anqliss Group (1969) 122 C.L.R. 546

and

Murphv v Lush

(supra).

the

case

of commissions of

inquiry, however, the application of the principle will of course

depend upon somewhat different considerations from those which

apply in legal proceedings with definite parties and defined

issues. In The Queen

v Commonwealth Conciliation and Arbitration

33.

Commissioner:

Ex Parte

The Anqliss Group (supra) it was said

(p.553)

"It is plain that

when it is necessary to consider a

question of fairness in relation to

tribunal the

whole of the circumstances in the field

inquiry

are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its

exercise

are

amongst

those

circumstances.

therefore

important

bear

mind

that

the

Commission does not sit to enforce existing private rights. Amongst other things, it is its function to

develop and apply broad lines of action in matters

public concern resulting in

the creation

new

rights and in the modification

of existing rights."

The impugned conduct of the Commissioner must be vlewed in the context of all the relevant backsround and facts earlier

narrated by us. The Marumungu claim is of long standing. It was

made as long ago as 1978. The Commissioner's association with

this claim commenced in

March 1985. As our earlier narrative of

facts discloses, the inquiry is well advanced.

From

March to

July

1985 there were some

days of hearing.

The hearing

recommenced on

2 3 February 1987 and continued until

6 March when

it was adjourned to

21 April.

The comments of the Commissioner on

February plainly

reflect the perceived to be the absence of assistance from the Northern

Commissioner's

sense

of frustration at

what he

Territory Government inqulry, including the prospective boundaries and expansion

adducing

evidence

relevant

the

the Municipality of Tennant Creek and questions of water supply,

public

recreation,

roads,

stock

and

pastoral

leases

and

conservation. The Commissioner had been requesting assistance

. . . ~ .

3 -

j	.	I
I

34.

from the Northern Territory Government since

31 March 1985 as the

body best able.

in his view, to give it and in his opinion it was

nut, being given. It is not for this Court to say whether the Commissioner's sense of frustration was

or was not justified; but

in participant in the inquiry, whether the Government

our

view,

clearly

open

him

criticise

is,

or some other

body, if provided the criticism is within acceptable limits.

in his view proper assistance was not being given,

The Commissioner's remarks made on 25

February were made in

the context of evidence concerning Singleton Pastoral Co. Pty. Limited, the lessee of Singleton Station. As we mentioned

earlier,

the principal of that company,

Mr.

Heaslip, was the

President of the Country Liberal Party

of the Northern Territory

which has been in government since self-government in

1978. The

Commissioner's reference to patronage carries with it overtones

of impropriety

and suggests that because of his connection wlth

the party in political power,

Mr.

Heaslip and others may have

been given lenient treatment in relation to the inspection of

their properties by pastoral inspectors.

February 1987. it had been announced that an election for the Northern Territory Parliament was

t o be held on Saturday,

On 18

7 March and it was shortly after that announcement that the first

of the impugned statements of the Commissioner was made.

The

statements were made, therefore, at

a tlme when an election was

pending.

It could not be susgested that the Commissioner should

have conducted campaign was pending, but if he felt the need to make statements

the

Inquiry

differently

because

election

I '. .

. .

3 5 .

about the Government which was standing for re-election. it would

have been

wise

to the delicate situation which would prevail until the election

choose

his remarks

with

some

care

because

was

over, a situation which itself might lead to remarks

he made

either being misunderstood

exaggerated or distorted when

reported in the press. His remarks of

24 February culminating

with the words "people get the governments they deserve" is the

invocation of a well-known expression of somewhat ambivalent

meaning. What the Commissioner there said needs to be read in

the context of the

remarks

which

have

earlier

set

out.

The

like must be done in relation to what

said the following day

I I

about patronage.

I	There are some other matters that ought to be recalled.

Counsel assisting the Commissioner,

Mr. Reeves, was the President

of the Northern Territory branch of the Australian Labor Party

and a

candidate standing against the Minister for

Lands in the

pending

election.

Then

came

the

publicity

the

press

certain

the evidence of

M r .

Hockey and the Commissioner's

remarks in relation to it. The Leader of the Opposition publicly called upon the Chief Minister to stand down pending an inquiry

into the Territory.

system

pastoral

inspections

in the

Northern

This demand gained wide publicity and was undoubtedly

significant event during the election campaign.

The

Chief

Minister himself then made a statement of

2 March 1957 to which

we referred earlier.

This was followed by the Commissioner's

summoning counsel

to chambers and making

a statement to them on

March as set out in the document headed "Aide Nemoire".

Mr.

Reeves gave an interview on

radio on 4

March 1987, a few days

36.

before the election was held. The events at the Court House at

Alice Springs of 16 March and thereafter then occurred to	which
we have already referred.

The statements and conduct of the Commissioner impugned by

the Attorney-General in these proceedings must be viewed overall with respect to the future hearing of the land claims that is relevant.

and their likely effect considered as a whole. The whole of the

It is as plain what the Commissioner had

as can be that once the media ??came aware of

saiil

about patronage on

25 February,

and published

a report about the matter in the press. the whole

matter got out

of hand.

An election issue of

a high order had

arisen involving assertion and counter assertlon by the Chief

Minister and the Leader

of the Opposition, public statements by

counsel assisting politically involved in the election, and statements by the

the

Commissioner,

counsel

himself

being

Commissioner to counsel and in public during the Inquiry and	in
correspondence. The whole affair is most unfortunate.

as it may, whether the Commissioner is disqualified from further hearing the land claims must be considered in the context of the issues arising in those claims. As the issues

Be that

differ in

each

claim

necessary

consider

the

Commissioner's conduct with reference to each of the two claims.

First. we turn to the Warumungu claim.

3 7 .

The only definitive findings required to be made under the Statute by the Commissioner in the course of

his

inquiry are

those referred to

in para. 50 (l)(a). He has to ascertain whether

Aboriginal claimants

o r

any other Aboriginals are traditional

Aboriginal owners

of the land which is the subject of the claim

and he has

to report his findings to the Minister and to the

Administrator of the Northern Territory

and, where

he finds there

are Aboriginals

other traditional owners,

he is obliged

make recommendations to the Minister. This particular issue

one in respect of which any comments by the Commissioner, which

are here complained of, would appear

to have no relevant bearing.

addition to making findings,

howeoer,

the Cu!nmiszioner

required, in making his report, to have regard to the strength or

otherwise of the traditional attachment by

the claimants to the

land claimed and is required

by the Act to comment on several

matters. Two of the matters on which he is required to comment

are set forth in paragraphs (b) and (c) of sub-S. 5 0 ( 3 ) . They are

as Follows:-

"(b) the detriment to persons or communlties including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;

acceding to the claim either in

whole or

in part would have on the existing

proposed patterns of land usage in the region;"

So far

as para. (b)

is concerned, there is some suggestion

that there

was a right in Singleton Station to run cattle on

commonage which was within the land

claim and that this might

adversely affected.

As regards para.

(c), although the

claim

might affect existinq or proposed patterns of

land usage in the

38.

region, the complaint of the Commissioner which he was voicing. when he made the comments complained of, was rather that he had not been given assistance as to what land usage was proposed for

the region. One burden of the complaint made by the Commissioner

was that he had not been given the assistance that

he felt he was

entitled to expect

from the Government of the Northern Territory.

However, no particular issue emerges

in relation to the Warumungu

land claim on which

he would have to make

a findinq or indeed on

which he would

have

do anything

than

make

recommendation. Furthermore, what

he said on 25 February 1987

when read as

a whole,

indicates that the Commissioner was

acutely aware of the need to balance carefully,

on the one hand.

the

interests of

the Aboriginal claimants and. on the other,

those of the townspeople of Tennant Creek and	also their. and the
public interest, in its future development.

In all those circumstances, it is difficult to see that he said would lead the participants

what

or the public to entertain

reasonable apprehension that he might not bring

an impartial and

unprejudiced mind to the formation of his comments

these

matters when he reported to the Minister. It should also be noted

that there Commissioner and his comments have no opercltlve effect as to any

are

no parties

the

strict

sense

before

the

legal rights. He was holding

an inquiry in accordance with the

Act and in this Inquiry there are participants-including the Land

Counclls representing claimants and the Attorney-General	for the
Northern Territory representing that Government.

If, following

the report of the Commissioner to the Minister

39.

pursuant

to S.

50 of the

Act, the Minister recommends to

the

Governor-General that land the subject of the claim be granted

for an estate in fee simple to the relevant Land Trust, then the

Commonwealth is not liable to pay to the Northern Territory

Government any compensation by reason of the making of that grant

(sub-S. 3A(2) of the Act). If, on the vestinq

in a Land Trust of

an estate in fee simple in any of the land that is the subject

the Warumungu claim, it is being occupied

or used by the Northern

Territory Government or with its licence or permission, it is

entitled to continue that occupation

or use for such period as

the land is required by it

( S .

14).

Although some of the Commissioner's statements and conduct

could

reasonably be regarded

severely

critical

of the

competence of

the Northern Territory Government and

as casting

aspersions upon its integrity concerning its policies in relation

to pastoral leases in the Northern Territory, it could not, in

our opinion. be reasonably apprehended that the Commissioner might not resolve the issues before him in the Warumungu claim in

a fair and unbiased way. The Commissioner will, if

he continues

with the Warumungu inquiry, deal with the issues

which we have

briefly summarised above. The resolution of those issues would

not be affected by any evident attitude

the Commissioner's

disaffection with the Northern Territory Government and its

policies in relation to land tenure. Questions of disaffection

with the Northern Territory Government and other matters that are

relied

upon

constituting

the

impugned

conduct

of the

Commissioner cannot in our view reasonably be said to call for his disqualiflcation in respect of the Warumunqu land claim.

4 0 .

It is not necessary for us to consider whether, if the case

for disqualification

respect of the further hearing of the

Warumungu land claim had been made out, the Court could in the exercise of its discretion nevertheless decline to make an order

of prohibition. All we need say about this is

that. considering

the history of this land claim and the fact that it is in its

closing stages following very extensive hearings, views and

submissions, these

may provide powerful reasons why

in the public

interest the Commissioner should continue to hear this claim.

Ne turn to the Xenbi Land Claim. This claim is now over

eight years old but to date there has not been

a hearing of it.

There have questions and the s%atus of certain of the land included within

been

various

applications

concerning

procedural

%he claim. As we said

earlier, the High Court held

in The Queen

V. Toohey Ex parte

Northern

Land

Council

(supra) that the

Commissioner was bound to embark upon

an inquiry into the reasons

why the Administrator made

the

planning regulations under

the

Plannina Act. If the regulations are valid, most of the land in

the Cox Peninsula. the subject of the claim. would not be

available for claim under the Act. It falls to the Commissioner

to determine whether the relevant regulation (reg.

5 )

was made

€or the purpose

of defeating the claim by the Aboriginals

t o the

land described in Schedule

of the regulations.

The issues

arising in this claim will involve %he Commissioner Inquiring

into the reasons why the regulations were made and into any

question of bad faith of the Northern Territory Government in

recommending to the Administrator of the Northern Territory	that
the regulations be made.

__	~	~	_ _	-	- _ _ I _ - __	..-
l	. -	..

, .

41.

Thus, the Commissioner will be required to determine the bona

fides of

members of

the Government in the making of

a Cabinet

decision which

statement of the claimants claim makes clear, the essential

question in the Kenbi claim is whether the regulations were made

led

the

making

regulations.

As the

bona fide or for the ulterior purpose of defeating

or impeding

claim.

Members

of the

Ministry of the

Northern

the

land

Territory Government may be called to give evidence and the their evidence.

The Commissioner's statements and conduct. especially on

and

February, election which was to take place on Saturday,

must be considered in

the

contest of the

7 March having been

announced as recently as 18 February. His Honour's remarks were

critical of the Government

the Northern Territory. On

February he said of the Government:

"It has pretensions to be a government f o r all the people in the Northern Territory, to be about the

business of building

a new society, yet its actions

consistently betray an

underlying hostility to the

basic principle of land rights for a dispossessed

people.

The Cornmissioner said during the evidence

of Mr. Hockey, "it lust

makes a

joke of the whole system of pastoral inspection" and "a

joke apparently endorsed by

Mr.

Hatton when

he was Minister"

(i.e. Minister for Lands).

little later these comments were

followed by particular matters, but they must be read

the

remark

about

patrorlaqe.

Fle mention

these

in	the context of the

events as a whole.

G The issue

the

bona

fides of

the

Northern

Territory

Government is difrerent

from

the

questions

arising

under

paragraphs (b) and

sub-S. 50(3) in the Warumungu claim.

It is an issue upon

which the Commissioner,

if he hears it, will

have to make a decision as to the bona fides

in the legal sense

the Government. It

not simply that he has

make a

comment which a Minister may or may not act upon.

The remarks

made by the Commissioner

which

have been objected to relate

closely to the question of the good

faith of the Government which

is raised in the Xenbi Land Claim before

him.

It was submitted by the counsel for the respondents

that any

problem should be

overcome by the making

by the Attorney-General

a public statement

that he

himself had confidence in the

i	Commissioner's	integrity	and	that,	in	his	view, there	was no
I

reason why the Commissioner should not continue with

t'ne hearing.

This

is something which

the

Commissioner himself said in the

statement he made on 23 March 1987.

TJntil his

letter of

24 March

1987, the essential parts of

which have been earlier quoted. the Attorney had not made any suggestion of actual bias. He had not referred to that matter

one way or the other. His letter of

March 1987 was written

after the Commissioner's statement made on

23 March

1987.

which the Commissioner had said, with

a good deal of emphasis,

1 that, upon the basis that neither the Attorney nor the Government

i in fact considered him to be biased, it was for the Attorney to

make a public statement to this effect. In this way there could

be dispelled any anxiety by those members of the public

who

miqhhr:

--______

44.

is said that there is probably no rule of

law which absolutely

precludes a

court from holding that an adjudicator was In fact

biased.

The matter is left in

that wag.

The Attorney's approach, reflected in his

lett-er, was

. - that it

was not

for him

t o say whether the Commissioner was biased

o r

not.

A l l he

could do

was t o look

at the objective facbs and

conclude that

a fair-minded member of the public

wuuld have a

. .

-reasonable

apprehension of bias if he considered

them.

It was

not, therefore, appropriate for him

t o take it

upon hinself to

make public statenents

abcut confid2nce

the Ccmmizsioner's

ability to proceed.

It shrluld be mentioned that the P.ttorl.reg had. morP than one

. .

€unction. He did have the obligations, ?c Tdhich both the

Commissioner and

he himself referred,

mainkxining public

confidence i n

the integrity gf the judiciary.

But-.

he also had

obligations to tender to the Government.

which

he was

member, proper advice in relation to the

land-claims 3enerxllg

and in relation

the problems

xhich the Commissioner's

remarks had given rise.

He had this latter

duty in the context-

s i t u a t i o n in which the Commissicner, in the statemcnt made

him or.

March 1987,

almost

a mgnth after the impugned

statements had been made. had said that he did

nclt resile from

the criticism he had made of the "code of conduct" in relation

inspections.

He had made that criticism in the same statement

which he referred to patronage.

P. fair-minded rlbserver aculd be

justifled in thinking that the Commissioner. havinq reflected on

the matter. remained

the view

khat there were questions

4 5 .

patronage in the Territory.

all these circumstances

.have reached the conclusion

that it was

an over simplification of the matter to say that it

would be properly solved by

appropriate statement by the

Attorney saying that

had confidence in the Commissioner's

abillty to continue with the hearing.

If the Attorney had chosen

to take this course, that may have been one thing;

bu t he was not

bound to do so'and his failure in

this regard is

no answer to the

claim which lie makes here.

The submission mz4e by courlsel for

the respondents is therefore rejected.

Having considered all the iiiatet-ial before as, it is nur.

op-inion tBat

-ft miqht reasonably bt apprehended

bp a fair-ainded

person

tKdt the Commissioner might

not

resolve %he questions

before him

in the Kenbi claim relating

to the validity of the

planning regulations with

fair and unprejudiced mind.

The

question of actual bias or prejudice 1s

not the question before

1.1s. That is

not a relevant

matter for inquiry. The only

question befoce

1-15

is the application of

the

objective test to

rJhlch we have referred.

'315 remarks of the Commissioner which

led to these procetdings w~3rt

made at ?. time when a political

czmpaign

was

being fought for the

e l e c t i n n

of the Northern

Territcry Government. Personalities invnlved in the land claims

themselves

included

personalities

different

2olitical

sllegiances.

The

public's

awareness

the

Commissioner's

remarks was heightened by the publicity necessarily atcached to the election. The remarks related to questions t,hilt, became

politically

sensitive

the

milieu

of Northern

Territory

46.

politics. Sitting on this application.

in this Court

are

-removed

from

the

fray

and

the

heat

of the. moment,

thus

- - facilitating the proper application of the objective test

of the

fair-minded person's reasonable apprehension of pre-judgment.

Having reflected

on the matter, we have reached Yne clear

conclusion that, in

a l l the circumstances the Commissioner should

be prohibited from proceedinq

fl-irther with the Kenbi Claim.

In %he -result

the

writ

prohibition

which the

Attorney-General has sought will go, but only. in respect of the

.:Kenhi..Claim.

The proceedings under the Judicial

F.PVL?GI. A r t xill,

for the reasons earlier

given, be dismissed.

It follows that bhe

parties have had mixed success.

In those circumstances

;e think

it better if- we do not

deal now with costs. We shall

bear

argument about that matter on

.% date to be fixed.

Counsel-for Applicants:

h-. D.M.J. Eennett, Q.C., with

Mr. J .0 .

Earrett and Mrs. $.C.

Eennett

Solicitors for Applicants:

Solicitors for the Northern Territory of Rustralia,

Freehill Hollingdale

& Page

Counsel for Northern Territory

Development Land Corporation:	Mr. J. Splqelrnan, Q.C. with Ms.
4. Eowne

!	Solicitors	for	Northern
I

Tezritory Development Land

Sorporm3tion:

Freehill Hollinqiale

& Page

Counsel for Northern Land

Counci	l :	Howie
Mr. J. Sher, Q.C. with Mr. R.

47 .

Solicitors f o r Northern

Land

Council :

Northern Land :%auncil bp their

Sydney agents, Dawson Haldron

1 Counsel for the Commonwealth

of Australia:	Mr. D. Grieve. -Q.C. with Mr.
T.S. Riley

Solicitors f o r the Commonwealth

of Australia:

Australian Gavernment Solicitor

I	Counsel €or Municipality qf

Tennant Creek-:

Hr. P. Webb ,. -Q.

C. with Mr. P.

:	Brachter

Solicitors for Municipality of

Tennant, Creek:

Messrs. Aldqrmans of Allce

Springs by their Sydney auents,

Tress Cocks and Maddo:<

j	Dates n f hearing:	30, 31 March m d 1 F.pri1	1987
i
i
i

[1987] FCA 197

13 Apr 1987