Bleathman v Taylor
[2007] TASSC 82
•8 November 2007
[2007] TASSC 82
CITATION: Bleathman v Taylor [2007] TASSC 82
PARTIES: BLEATHMAN, Ann
v
TAYLOR, Bruce
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 11/2006
DELIVERED ON: 8 November 2007
DELIVERED AT: Hobart
HEARING DATE: 16 October 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Aboriginals – Other matters – Aboriginal Land Council of Tasmania Electors Roll – Proof of Aboriginality – Statutory guidelines – Role of Electoral Commissioner – Right of appeal.
Aboriginal Lands Act1995 (Tas), ss3A(2), 9(3), 10(4A), (7).
Aust Dig Aboriginals [54]
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Existence of obligation – Particular cases – Aboriginal Land Council of Tasmania Electors Roll – Objection asserting person not Aboriginal – Right of objector to be informed of evidence of Aboriginality.
Aboriginal Lands Act1995 (Tas), s10.
Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596, applied.
Aust Dig Administrative Law [1050]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC
Respondent: L J Neasey
Solicitors:
Appellant: Page Seager
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 82
Number of paragraphs: 46
Serial No 82/2007
File No LCA 11/2006
ANN BLEATHMAN v BRUCE TAYLOR
REASONS FOR JUDGMENT BLOW J
8 November 2007
This is an appeal pursuant to the Aboriginal Lands Act 1995 ("the Act"), s10(7). It concerns a dispute as to whether a number of individuals are Aboriginal persons. Only Aboriginal persons are entitled to vote in elections for the Aboriginal Land Council of Tasmania ("the Council"). The respondent is the Electoral Commissioner appointed under the Electoral Act 2004, s14. Under the Act, s8(1)(a), he is responsible for preparing and maintaining the Aboriginal Land Council of Tasmania Electors Roll ("the roll"). The appellant lodged objections in respect of applications by a large number of individuals who sought enrolment on that roll. The respondent rejected many of her objections. This appeal relates to the decision of the respondent in relation to dozens of objections. On 18 September 2007 it was ordered that this appeal, insofar as it concerns Tony William Brown, was to be set down for hearing before a judge. Mr Brown is one of the individuals in respect of whom the appellant lodged an objection that was rejected by the respondent. He has been served with notice of the proceedings, but has taken no part in them. The appeal, insofar as it concerns him, has been fully argued.
The legislation
Under the Act, s9(1)(a), a person is entitled to have his or her name entered on the roll only if he or she is an Aboriginal person. Criteria as to Aboriginality are set out in the Act, s3A, which reads as follows:
"3A (1) An Aboriginal person is a person who satisfies all of the following requirements:
(a) Aboriginal ancestry;
(b) self-identification as an Aboriginal person;
(c) communal recognition by members of the Aboriginal community.
(2) The onus of proving that a person satisfies the requirements referred to in subsection (1) lies on that person."
The steps required and permitted by the Act in compiling the roll, and in determining any disputes that arise as to whether individuals are Aboriginal persons or not, are as follows:
(i)The Electoral Commissioner, in consultation with such persons as he or she considers necessary, is required by s9(3) to prepare "guidelines" concerning the requirements referred to in s3A.
(ii)The Electoral Commissioner is required to make those guidelines available to any person who requests them: s9(4).
(iii)A person who wishes to have his or her name entered on the roll must lodge with the Electoral Commissioner an enrolment form in a form approved by him: s9(5).
(iv)At least 120 days before nominations are called by him for the election of members of the Council, the Electoral Commissioner is required to cause notices to be published in the Gazette and three daily newspapers seeking applications for enrolment on the roll, and specifying the date and time at which applications close, the vacancies in the membership of the Council to be filled, details of entitlement to vote at the election, and any other matters that he considers appropriate: s10(2).
(v)The Electoral Commissioner is required to prepare a "Preliminary Roll", listing the names of all persons who have lodged properly completed enrolment forms, and whom he determines to be resident in the electoral area in respect of which they have applied for enrolment, and to have attained the age of 18 years: s10(2A) and (2B).
(vi)At least 60 days before he calls nominations for the election, the Electoral Commissioner is required to cause a second notice to be published in the Gazette and three daily newspapers, this time advertising that a Preliminary Roll has been prepared for the purpose of the election, stating when and where the Preliminary Roll may be inspected, and stating that objections to the transfer of the name of a person from the Preliminary Roll to the roll, on the basis that the person is not an Aboriginal person, may be lodged with him before a specified date, which must be no earlier than 28 days after the publication of that notice: s10(3)(a), (b) and (c).
(vii)Within the time specified in that notice, persons may lodge with the Electoral Commissioner objections to the transfer of the name of any person from the Preliminary Roll to the roll, on the basis that that person is not an Aboriginal person. (The Act does not expressly say that, but that is implicit. There is no statutory restriction as to who may lodge an objection.)
(viii)In order to properly consider each objection, the Electoral Commissioner must give the person to whom the objection relates an opportunity to make submissions to him in relation to "the matter", ie the question whether that person is Aboriginal: s10(4)(b).
(ix)In order to properly consider any objection, the Electoral Commissioner may also request the advice of such persons as he considers necessary: s10(4)(a).
(x)No later than 21 days before nominations are called for the election, the Electoral Commissioner must either accept or reject each objection: s10(5). He may not reject an objection unless he is satisfied that the person to whom the objection relates has satisfied the three requirements referred to in s3A(1)(a), (b) and (c): s10(4A).
(xi)No later than 21 days before nominations are called for the election, the Electoral Commissioner must serve notice in writing on all objectors and all persons to whom objections related, notifying them of his decisions: s10(5)(b).
(xii)Within seven days after service of such a notice, an objector or a person to whom an objection related, if aggrieved by a decision of the Electoral Commissioner, may appeal to this Court, but only on the ground that "procedures that are required by law to be observed relating to the making of the decision have not been observed": s10(7). No other form of proceeding may be brought to challenge such a decision: s10(6).
What the Electoral Commissioner did
The respondent published guidelines under s9(3) concerning the statutory criteria relating to Aboriginal ancestry, self-identification, and communal recognition. Those guidelines specified the sorts of evidence that a person seeking enrolment would ordinarily need to produce if an objector contended that he or she was not an Aboriginal person.
Mr Brown completed and lodged an enrolment form in which he declared that he was eligible to enrol on the roll. There is no evidence that he was ever given a copy of the guidelines under s9(3), or made aware of their contents. However the enrolment form does set out the definition of "Aboriginal person" in s3A. Mr Brown did not submit any material in support of his application.
On 24 October 2005, the appellant objected to Mr Brown's enrolment. Her objection stated:
"This person does not have Aboriginal ancestry and cannot provide authentic evidence that shows a direct line of ancestry back to traditional Aboriginal society also is not know [sic] to my community".
By letter dated 19 October 2005, which was apparently mailed after the receipt of the appellant's objection, the respondent wrote to Mr Brown pursuant to s10(4)(b), inviting him to make a submission to him by 5pm on 4 November 2005. Mr Brown did not respond to that letter.
By letter dated 28 October 2005, the respondent wrote to the appellant inviting her to make submissions in support of her objections. Her solicitors wrote back on 4 November 2005 saying that they should first have an opportunity to consider and comment upon any evidence that the respondent received. The respondent wrote back on 9 November 2005 asserting that he was unable to provide any such material "as this is not provided for in the Act".
The respondent set up an advisory committee comprising eight individuals who claimed on various bases to have knowledge and expertise in relation to Aboriginal genealogy and history. He sought their advice, as he was entitled to do under s10(4)(a). On 15 and 16 November 2005, he met with the advisory committee, the State Archivist, and a senior archivist from the Archives Office of Tasmania. He asked the members of the advisory committee collectively, with respect to each of the persons who were the subject of objections, whether they could offer him any advice as to whether each such person satisfied the requirements of s3A(1)(a), (b) and (c). They advised him that they knew Mr Brown to be a person who satisfied the requirements of those provisions. They provided him with two documents, each containing a list of names. They recommended that the objections relating to the individuals on one list, including Mr Brown, should be rejected, and that the objections relating to those on the other list should be accepted. The respondent also invited the two archivists to inform him of any evidence or records that tended to contradict the advisory committee's advice, but they did not offer any such advice. He did not seek advice from the archivists as to any available evidence or records tending to support the advisory committee's advice.
I received evidence at the hearing in the form of a statement of agreed facts. It is not clear from that statement whether the advisory committee provided the respondent with any information relating to Mr Brown apart from its assertion that he was a person who satisfied the requirements of s3A(1) and its recommendation that the objection relating to him should be rejected.
After consulting the advisory committee and the archivists, the respondent determined that Mr Brown satisfied the requirements of the Act, and rejected the appellant's objection in relation to him. The only evidence that he had as to Mr Brown being an Aboriginal person comprised Mr Brown's assertion in his enrolment form that he was eligible to enrol, which amounted to an implied assertion that he was an Aboriginal person, and the comments of the advisory committee.
The grounds of appeal
The appellant's grounds of appeal were amended at the hearing. Some grounds were abandoned, but some new grounds were added. Essentially, her contentions are as follows:
·The respondent ignored the guidelines that he had prepared under s9(3). (Grounds 1 and 11.)
·The respondent had no evidence that Mr Brown was an Aboriginal person, and Mr Brown failed to discharge the onus of proof that he was Aboriginal which was imposed by s3A(2). (Grounds 4 and 10.)
·The respondent denied the appellant natural justice, in that he did not provide her with the material on which he based his decision, and did not afford her an opportunity to comment with respect to that material. (Grounds 5 and 6.)
·The respondent did not give adequate reasons for his decision. (Ground 3.)
The guidelines — Grounds 1 and 11
The guidelines prepared by the respondent pursuant to s9(3) set out at length the sort of evidence that he would ordinarily require as to an individual's Aboriginal ancestry, self-identification as an Aboriginal person, and recognition as such by members of the Aboriginal community. The appellant contends that the evidence that the respondent acted on in rejecting the objection concerning Mr Brown fell short of what the guidelines said would ordinarily be required; that it did so in every respect; and that it did not comply with the guidelines to the slightest degree. The appellant contends that the respondent was obliged to require at least some degree of compliance with the guidelines, but that instead there was a wholesale disregard of the guidelines which amounted to a non-observance of a procedure required by law to be observed by him in relation to the making of the relevant decision.
"Guidelines" and similar instruments, whatever they are called, can constitute various different species of quasi-legislation. Their status depends upon the wording and intended effect of the legislation that provides for them. Thus, sometimes, guidelines prepared pursuant to a statute will amount to delegated legislation that is absolutely inflexible: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287; Minister for Human Services and Health v Haddad (1995) 58 FCR 378. But at other times there will be no legislative intention for precise or inflexible rules to be created: Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 (Ministerial "directions"); Laker Airways v Department of Trade [1977] QB 643 ("guidance" given by the Secretary of State in writing to the Civil Aviation Authority).
Counsel for the appellant relied on a number of comments made by the Premier, Mr Lennon, in his second reading speech in relation to the Aboriginal Lands Amendment Bill 2005, which introduced the provisions of s9 relating to guidelines, and in the Parliamentary debate that followed (9 June 2005). In the second reading speech, the Premier said the following:
"… whether a person is or is not an Aboriginal person will be decided by the Electoral Commissioner, in accordance with guidelines developed in consultation with the Aboriginal community."
It appears that the guidelines had already been drafted in anticipation of the enactment of s9(3). The Premier read from them in the course of the debate and said, "That is the process that the Electoral Commissioner will use."
Despite those comments, I do not see any reason to read into the legislation a requirement that a decision to reject an objection must be based, at least in part, upon evidence provided in accordance with the guidelines. According to the Macquarie Dictionary, the primary meaning of "guideline" is "an official recommendation indicating how something should be done or what sort of action should be taken in a particular circumstance". (My emphasis.) The word "guideline", as ordinarily used, does not refer to a mandatory requirement. In my view the s9(3) guidelines are intended to amount only to statements of policy as to what evidence of Aboriginality should ordinarily be provided when necessary, and it was always intended that the Electoral Commissioner should have the power to depart from the guidelines in the course of his decision-making. The purpose of the guidelines is to facilitate the process of compiling the roll by encouraging individuals to provide appropriate evidence of Aboriginality in a timely manner. But in individual cases there are likely to be a great variety of circumstances relating to the availability or unavailability of evidence of Aboriginality. It would therefore be unjust for there to be an inflexible requirement that there be some evidence relating to an individual that in some way complied with the guidelines before the Electoral Commissioner could be satisfied that an individual was an Aboriginal person. Such a requirement would frustrate, rather than promote, the purpose or object of the legislation. An interpretation of the legislation that promotes its purpose or object is to be preferred: Acts Interpretation Act 1931, s8A.
Further, I think it is significant that the guidelines were intended to relate to the nature and quality of evidence of Aboriginality, rather than the source of that evidence or the burden of proof. The obligation on the respondent under s9(3) was "to prepare guidelines concerning the requirements referred to in section 3A". The word "requirements" must have been a reference to the three requirements listed in s3A(1), namely Aboriginal ancestry, self-identification as an Aboriginal person, and communal recognition by members of the Aboriginal community. There is no reason to think that Parliament intended the guidelines to limit in some way the class of persons from whom the Electoral Commissioner might receive evidence as to an individual's Aboriginality.
When the advisory committee decided what to tell the respondent about Mr Brown, there is no reason to think that their reasoning was inconsistent with the guidelines.
Ground 1 asserts that a procedure required by law to be observed was not observed, in that the respondent failed to require Mr Brown to provide evidence or information as referred to in the guidelines that would affirmatively establish the matters required in the Act, s3A. Since the guidelines were no more than guidelines, and since it was not part of their intended role to limit the sources of information that the Electoral Commissioner could rely on, ground 1 must fail.
Ground 11 asserts that the respondent erred in failing to fulfil a "legitimate expectation" held by the appellant that he would apply the guidelines in determining her objections, and in failing to give her an opportunity to be heard as to whether or not he should require compliance with the guidelines. It is an agreed fact that at all material times the appellant expected that, in considering her objection, the respondent would at least require substantial compliance by Mr Brown with the guidelines. It is also agreed that the respondent did not advise the appellant that he did not, in considering her objection, intend to at least require substantial compliance by Mr Brown with the guidelines, and that he did not invite the appellant to make submissions as to whether or not he should at least require Mr Brown to substantially comply with the guidelines.
The existence of a legitimate expectation can result in a decision-maker owing an individual a duty of procedural fairness that requires him or her to act in accordance with the legitimate expectation: R v Liverpool Corporation; ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299; Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629. A legitimate expectation may be created by the existence of a regular practice: Kioa v West (1985) 159 CLR 550 at 583; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20.
However, on the facts of this case, I do not think the preparation of the guidelines by the respondent gave rise to any sort of legitimate expectation as contended for by the appellant. For one thing, the guidelines were no more than guidelines, and did not lay down an invariable practice. There is no suggestion that the respondent represented or suggested that he would adhere to the guidelines in every case. There is no evidence that the appellant refrained from submitting material to the respondent as a result of expecting that he would adhere to the guidelines in relation to her objections in general, or that relating to Mr Brown in particular. There is no evidence that the advisory committee did not act consistently with the guidelines in providing the information and recommendation on which the respondent acted in making the decision now impugned. The ground of appeal relating to the suggested legitimate expectation, ground 11, must therefore fail.
Grounds 4 and 10 – Evidence and onus of proof
Counsel for the appellant made a submission to the following effect:
·Section 10(4A) prohibited the respondent from rejecting the objection relating to Mr Brown unless he was satisfied that Mr Brown satisfied the three requirements listed in the definition of "Aboriginal person" in s3A(1).
·Mr Brown bore the onus of proving that he satisfied those three requirements because of s3A(2).
·As Mr Brown sent the respondent no material that tended to prove his Aboriginality, and as s10(5) compelled the respondent to make a decision in relation to the objection, the respondent's duty was to accept the objection.
·Because Mr Brown had provided no material relating to the question of his Aboriginality, it was not appropriate for the respondent to request any advice about him from the advisory committee under s10(4)(a). Such a course is appropriate only when there is something in the nature of a "case to answer".
·Because there was no material before the respondent that could have justified the decision that he made, it follows that what he did was something different from making a decision in accordance with the Act, and that his purported decision is a nullity.
In my view the provisions of s3A(2) and s10(4A) do not indicate an intention on the part of Parliament that the Electoral Commissioner should never base a decision to reject an objection solely on material from sources other than the person seeking enrolment. It is important to bear in mind the object or purpose of the legislation: Acts Interpretation Act, s8A. Obviously the object of this legislation was to create a workable system for the enrolment of Aboriginal persons, and not others, for the purpose of electing the Council. The responsibility for making decisions in relation to objections was given to an administrator — the Electoral Commissioner — and not to a court or tribunal. As a general rule, administrators have no duty to ignore material available to them from sources that have some degree of reliability. It was appropriate for Parliament to enact provisions so that, in the event of the Electoral Commissioner ending up in a state of indecision as to whether a particular individual was Aboriginal, that question was required to be resolved in the negative. Such a requirement facilitates the preparation of the roll, and thus promotes the object or purpose of the legislation. However it would frustrate, rather than promote, the object of the legislation if s3A(2) and s10(4A) were regarded as having any greater effect than that.
By enacting s10(4)(a), Parliament gave the Electoral Commissioner a discretion, but not a duty, to obtain information from appropriate sources in relation to questions as to individuals' Aboriginality. It would facilitate the preparation of the roll if the Electoral Commissioner had the power to seek the assistance of others under s10(4)(a) at an early stage after receiving an objection disputing an individual's claim to be an Aboriginal person. It would not facilitate the preparation of the roll for the Electoral Commissioner to have to wait for the individual in question to respond, and respond appropriately, to a request for information. It is significant that, because of the timing provisions in s10(3) and (5), the Electoral Commissioner may have a very limited time within which to make decisions in relation to a large number of objections.
The respondent had an enrolment form from Mr Brown asserting that he was an Aboriginal person and an objection form from the appellant asserting the contrary. Without additional material, the respondent was not in a position to prefer Mr Brown's document to that of the appellant. As far as I know, the only additional material weighing in favour of Mr Brown comprised the advisory committee's advice that they knew Mr Brown to be a person who satisfied the requirements of s3A(1)(a), (b) and (c), and their recommendation that the objection relating to Mr Brown should be rejected. Having regard to the expertise claimed by the members of the advisory committee, I think that that material was sufficient for it to be reasonably open to the respondent to make a decision in favour of Mr Brown. I do not think it can be said that he impermissibly delegated the decision-making role to the advisory committee since he checked to see whether the archivists had any contradictory information before making a determination in Mr Brown's favour.
It follows that the respondent did not err by rejecting the objection relating to Mr Brown solely on the basis of information from the advisory committee, and without any evidence of Aboriginality having been submitted by Mr Brown. Grounds 4 and 10 must therefore fail.
Procedural fairness — Grounds 5 and 6
These grounds allege that the respondent denied the appellant natural justice by failing to provide her with the submissions and material upon which his decision was based (ground 5), and by not allowing her an adequate opportunity to be heard with respect to the matters that were the subject of his decision (ground 6).
The respondent's letter to the appellant dated 28 October 2005 resulted in her having some opportunity to provide evidence suggesting that Mr Brown was not an Aboriginal person, and to make submissions. The essence of the appellant's contentions in relation to these grounds is that the respondent, before making his decision, should have told her what information he had as a result of consulting the advisory committee and the two archivists, and should have given her a reasonable opportunity to make submissions in the light of that information. She could then have submitted that, on the information available, the respondent could not or should not reject her objection.
The respondent contends that he had no common law obligation to afford procedural fairness to the appellant. The common law obligation to afford procedural fairness attaches to the exercise of public power, subject to any statutory modification or exclusion of that obligation: Kioa v West (supra) at 576 - 584, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574 – 575; Attorney-General (NSW) v Quin (supra) at 57. A decision which attracts the duty to afford procedural fairness is one which directly affects one or more persons or corporations individually, as distinct from a policy or political decision that affects individuals or corporations only as members of the public or a class of the public: Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 452; Kioa v West (supra) at 584; Annetts v McCann (supra) at 598; Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281. Since the Electoral Commissioner is required by s10(5)(b) to notify an objector in the position of the appellant of his decision in relation to each objection, and since an objector aggrieved by such a decision has a right of appeal under s10(7), I think it follows that a decision of the Electoral Commissioner accepting or rejecting an objection should be regarded as one that affects an objector individually, with the result that the common law duty to afford procedural fairness applies unless it has been excluded or modified by statute.
In Annetts v McCann (supra) at 598, Mason CJ, Deane and McHugh JJ said:
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment".
There are no "plain words of necessary intendment" in the Act that indicate any exclusion or modification of the rules of procedural fairness or natural justice in respect of objectors. Counsel for the respondent emphasised that s10(4)(b) expressly requires the Electoral Commissioner to give a person to whom an objection relates an opportunity to make submissions, and that there is no corresponding express requirement for the Electoral Commissioner to give any sort of opportunity to an objector. However, it is well established that it must not be inferred from the presence of some statutory provisions concerned with natural justice that Parliament intended to exclude natural justice in all other respects: Baba v Parole Board (NSW) (1986) 5 NSWLR 338 at 349; Annetts v McCann (supra) at 598; R v Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96. There is nothing in the Act to indicate, expressly or by implication, that the common law rules of natural justice have not been excluded or modified by the Act in relation to objectors.
One aspect of the common law requirement of procedural fairness is a duty of disclosure on the part of the decision-maker. The basic principle was stated by Brennan J in Kioa v West (supra) at 628 as follows:
"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise".
The respondent's common law duty did not necessarily require him to afford the appellant an opportunity to be present at his discussions with the advisory committee or the archivists, nor to be informed of every word spoken between them in relation to Mr Brown. But I think he was obliged at least to acquaint her with the source and substance of the material or information upon which he ultimately based his decision.
Situations can arise in which a need for urgent decision-making results in a duty of procedural fairness being excluded, or the scope of the duty being reduced. See Aronson, Dyer and Groves Judicial Review of Administrative Action, 3rd ed, at 436 – 438, 483 – 484. However, although the Act imposes a series of time restrictions on the Electoral Commissioner, I do not think that the need to make a decision in respect of the appellant's objection concerning Mr Brown was sufficiently urgent for the common law duty of procedural fairness to be excluded or modified as a result. The respondent proposed to call for nominations for the Council on 31 December 2005. He was required by s10(5) to make a decision accepting or rejecting each objection no later than 21 days before doing that. The objection in question is dated 24 October 2005. The respondent must have received it on or before 27 October 2005, that being the date specified by him under s10(3)(c) as the closing date for objections. He could make a decision in relation to the objection as late as 10 December 2005 without having to revise his plans as to when he would call for nominations. He therefore had over six weeks in which to make a decision accepting or rejecting the objection. His consultations with the advisory committee and the archivists ended on 16 November 2005, leaving him more than three weeks in which to make a decision. He had ample time to acquaint the appellant with the material adverse to her objection, and to give her an opportunity to present evidence and/or argument in relation to that material. By not doing so, he breached the common law duty requiring him to afford her procedural fairness.
The respondent contends that the right of appeal conferred by s10(7) is limited to grounds concerning procedures required by the Act to be observed. However that is not what s10(7) says. It allows an objector to appeal "on the ground that procedures that are required by law to be observed relating to the making of the decision have not been observed". (My emphasis.)
Counsel for the respondent made a submission to the effect that the words "by law" in s10(7) should not be read as referring to the common law. He relied heavily on a passage in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. That passage relates to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), s5(1)(b), which provides for judicial review upon the ground "that procedures that were required by law to be observed in connection with the making of the decision were not observed". Their Honours said at 390 – 391:
"The first question raised by the argument is whether there was any requirement on the part of the Tribunal to consider the imposition of conditions or the acceptance of suitable undertakings. On the basis that there was such a requirement, the respondents argued that the decision concerning the sixth to ninth respondents must be set aside as one involving an error of law (s5(1)(f) of the ADJR Act) or as one in connection with which procedures that were required by law were not observed (s5(1)(b) of the ADJR Act). It may be doubted whether, assuming such a requirement, a failure to consider the imposition of conditions or the acceptance of suitable undertakings is properly described as a failure to observe procedures required by law within the terms of s5(1)(b), although, clearly, it would constitute an error of law."
On the basis of that passage, the learned authors of Halsbury's Laws of Australia have written (vol 1(2), par10-2983):
"A failure to take action which is not specifically required by the statute may constitute an error of law upon some other basis but it is to be doubted whether it is properly described as a failure to observe 'procedures … required by law to be observed', within section 5(1)(b) of the ADJR Act."
Not surprisingly, there are numerous reported cases in which procedures whose observance was required by statutes have been held to be "procedures that were required by law to be observed" within the meaning of the ADJR Act, s5(1)(b). However, it does not necessarily follow that procedures whose observance is required by the common law do not fall within the words of s5(1)(b). Certainly that was suggested, but only suggested, by Toohey and Gaudron JJ in the passage I have quoted. That suggestion is perhaps not surprising, given that the ADJR Act provides separately in s5(1)(a) for judicial review upon the ground "that a breach of the rules of natural justice occurred in connection with the making of the decision". One could legitimately regard s5(1)(a) as covering the common law's requirements in relation to natural justice or procedural fairness, and s5(1)(b) as covering statutory procedural requirements.
Although the words used by the Act in s10(7) ("procedures that are required by law to be observed relating to the making of the decision have not been observed") are almost identical with the words of the ADJR Act, s5(1)(b) ("procedures that were required by law to be observed in connection with the making of the decision were not observed") (my emphasis), that is not necessarily the end of the matter. For one thing, s10(7) does not immediately follow a specific provision relating to natural justice similar to the ADJR Act, s5(1)(a). Further, the Acts Interpretation Act, s8A, requires an interpretation of s10(7) that promotes the purpose or object of the legislation to be preferred to one that does not. The evident purpose or object of s10(7) is to confer a right of appeal in relation to procedural matters, as distinct from matters relating to the merits of a dispute as to an individual's Aboriginality.
That subsection was also referred to by the Premier in his second reading speech relating to the Aboriginal Lands Amendment Bill 2005. He said the following:
"This objection process remains unchanged, but there is a right of appeal to the Supreme Court limited to the grounds that the Electoral Commissioner has not complied with the procedures required by law to be observed in making a decision. This means that, as far as possible, whether a person is or is not an aboriginal person will be decided by the Electoral Commissioner, in accordance with guidelines developed in consultation with the aboriginal community. The Supreme Court will only be able to consider whether the Electoral Commissioner has complied with proper procedures in making a decision."
That comment related to procedures generally, and was not expressly confined to statutory procedures. Similarly, the words "procedures that are required by law to be observed", in their ordinary literal meaning, would refer not just to procedures whose observance is required by legislation, or by a particular Act, but also to procedures whose observance is required by the common law. There is no reason to think that Parliament intended any common law rights to procedural fairness to be unenforceable. Having regard to the evident purpose of s10(7), the ordinary meaning of its wording and the difference between its statutory context and that of the similar provision in the ADJR Act, I conclude that a procedure whose observance is required by the common law for the purpose of affording procedural fairness to an individual is a procedure that can be the subject of a ground of appeal pursuant to that subsection.
The respondent was required by the common law to afford the appellant procedural fairness by giving her an opportunity to provide evidence and/or argument in relation to the matters that he proposed to take into account following his consultations with the advisory committee and the archivists. In that respect, the procedures whose observance was required by the common law were not observed by him in relation to the making of the decision in relation to the objection concerning Mr Brown. Grounds 5 and 6 must therefore succeed.
Ground 3 — Adequacy of reasons
This ground asserts that procedures that were required by law to be observed relating to the making of the decision were not observed, in that the respondent failed to provide adequate reasons for his decision. He had no statutory duty to provide reasons for the decision. As an administrative decision-maker, he had no common law duty to provide reasons for the decision either: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. That is the end of the matter. This ground was misconceived. It must fail.
Conclusion
This appeal must succeed. No express power to remit the objection to the Electoral Commissioner is conferred by the Act or by the Supreme Court Rules 2000. However the Act, s10A(3), contemplates that a successful appeal can result in a decision "that the Electoral Commissioner reconsider the objection in relation to a name". Even if the Act were silent as to the possibility of remitting a matter, there is authority that such a power exists in a situation like this: Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366. It is more appropriate for the Electoral Commissioner to reconsider the objection than for this Court to adjudicate upon it. Accordingly, my orders are as follows:
1 That the appeal be allowed.
2That the decision of the respondent rejecting the appellant's objection in respect of Tony William Brown be set aside.
3That that objection be remitted to the Electoral Commissioner and reconsidered by the Electoral Commissioner or his delegate.
4That the further hearing of the appeal, concerning individuals other than Tony William Brown, be adjourned sine die.
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