Bropho & Anor v The State of Western Australia

[1992] HCATrans 152

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P34 of 1991

B e t w e e n -

ROBERT BROPHO and GRAEME MERRIT

Applicants

and

THE STATE OF WESTERN AUSTRALIA,
THE WESTERN AUSTRALIAN
DEVELOPMENT CORPORATION, THE
MINISTER FOR ABORIGINAL

AFFAIRS, THE MINISTER FOR WORKS

AND SERVICE and THE MINISTER

FOR PLANNING

Respondents

Application for special leave

to appeal

DEANE J

Bropho 1 8/5/92

DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 MAY 1992, AT 1.29 PM

Copyright in the High Court of Australia

MR s.c. CHURCHES:  If it please the Court, I appear with

Mr G.M.G. McINTYRE, for the applicants.

(instructed by Corser & Corser)

MSC.A. WHEELER: If it please the Court, I appear for the

respondents. (instructed by the Crown Solicitor

for Western Australia)

DEANE J: Yes, you proceed, Mr Churches.

MR CHURCHES:  Your Honours, I understand, have copies of the

applicants' outline of argument in which we set out

the three particular headings which, in our

submission, attract special leave in this matter.

Those matters cover issues which are peculiarly and

importantly relative to the Aboriginal community of

this country while other issues, in particular the

relationship of a subordinate reporting body and an

ultimate political deciding body, that issue, in

our submission, is important to the entire

Australian community.

Your Honours, if the decision of the Full

Court of the Supreme Court of Western Australia in

this matter is allowed to remain uncontroverted,

then a number of very serious issues or legal

principles will remain on foot which, in our

submission, are most unsatisfactory. Binding law

in Western Australia, particularly on a basis of

the majority decision in the Full Court, and

strongly persuasive in the rest of Australia, will

be a number of matters, the first of which is that

Aborigines will not have a recognizable legal interest in their heritage unless, on the basis of

the High Court's decision in Onus, they have

physical use or involvement with that heritage

issue, and that is referred to in the majority

decision, the decision of Justice Anderson in the

Full Court, at application book pages 74 and 81,

where His Honour refers to the failure of the

applicants to actually use the site which is the

question of this application. If I can just refer

Your Honours to Justice Anderson, at page 74,

speaking of the applicant, he says:

He does not, and the group which he represents

does not, habitually camp there or hunt or fish there or take children there to teach them culture, or hold ceremonies there, or

otherwise frequent the area.

And, similarly, at page 81:

There is no suggestion that the respondent in

an individual capacity will be deprived of any

right, privilege, benefit, expectation,

Bropho 2 8/5/92

advantage or opportunity by the carrying out

of these works.

In our submission, Your Honours, that raises the

very issue of what it is that sets out persons

aggrieved as separate from the rest of the

community in general, when we are talking about

issues - in this case Aboriginal heritage -

compared with, for example, the decision of the

Full Federal Court in Ogle v Strickland, which is

cited at No 2 on the applicants' list of

authorities, where the Full Federal Court

unanimously found standing - that is a specially

aggrieved position separate from that position of

the other general members of the community - to

vest in, in the case of Ogle, he was an Anglican

Minister, his ally in that matter was O'Neill, a

catholic priest, and the court unanimously found

that they had standing to make allegations of

breach of law with respect to the import of a

blasphemous film.

DEANE J:	Mr Churches, if you go on in Justice Anderson's
judgment to page 78, His Honour says:

This case is not about standing. Indeed,

the appellants are prepared to concede that
the respondent's "interest" is sufficient to

give him standing. The appellants are also

prepared to concede, for the purposes of the
case, that the carrying out of the works would
be "deeply offensive to the feelings of" the

respondent.

His Honour's decision did not turn on standing.

MR CHURCHES: Indeed, Your Honour, but we draw analogy

between the strict issue of locus standi standing

and that which attracts the necessity for

procedural fairness, Your Honour, and in our

submission, fundamentally both issues go to being a

person separate from the general run-of-the-mill

community. And we submit that in this case the

applicants are not general members of the

community. The Crown has submitted throughout that

the Aboriginal Heritage Act (WA) applies for the
benefit of all West Australians for the

preservation of - - -

DEANE J:  Assume for the sake of the argument that your

client has got standing because he is in a special

position and a special interest. What this case

turns on is whether, under a statutory scheme,

where a committee examines and hears submissions

and recommends to the Minister, someone interested

who has, for reasons which are unexplained, not

bothered to make submissions to the committee, can

Bropho 8/5/92

then come along and say, "I am entitled to make

submissions to the Minister." Well now, it may be

that he is or he is not, but that is the question

in the case.

MR CHURCHES:	Your Honour, if we can turn to that issue of the failure of the applicants to make submissions
on their -

DEANE J:  I was not suggesting the case turns on that. The

case seems to me to turn on whether, in the context
of a statutory scheme such as this, a party who is

interested is entitled to make submissions at both
levels. Well now, do you agree or disagree with

that?

MR CHURCHES:  Your Honour, in our submission, that is very

much the second plank in this issue. But in our

submissions, Your Honour, Justice Anderson, writing

the majority judgment, did not simply remove the
necessity for natural justice or procedural
fairness with respect to the Minister on the basis

that the applicants had failed to go before the

initial committee.

DEANE J:  I was not suggesting that he did. What I was

suggesting was that the central question in the

case is whether, under a legislative scheme which

provides for consideration by a committee which

hears submissions, recommendation to the Minister

and decision by the Minister, an interested party

is entitled to be heard at the level of the

Minister.

MR CHURCHES:  Your Honours, we could only concede that as a

second but, of course, extremely important issue in

the case because of the words of Justice Anderson

at page 82 about point 2, where His Honour said:

For most of the same reasons -

and we will come to them in a moment -

that I have already mentioned, I doubt that

he -

the applicant -

did have that right as a matter of procedural

fairness -

and that right is just above point 2 -

the right to be heard by the committee.

In other words, His Honour, writing the majority decision in the Full Court, has doubted the right

Bropho 4 8/5/92

of the applicants to even be involved in the

primary determination stage.

DEANE J: But he has said at page 78 that that is not what

the case is turning on.

MR CHURCHES:  None the less, Your Honours, there is now a

serious, dare I say, assertion on the part of a
Full Court that a person in the applicants'

position, concerned for his own heritage issues, an

Australian Aborigine has no right to be heard by a

fundamental fact-finding body who later report to a

Minister. That is the import of page 82.

DEANE J: That is exactly what it does not say. What it

says is, "I doubt that he did have that right".

There is no finding that he did not have that right.

MR CHURCHES:  Yes, Your Honour. With regard to the matters

on page 78, we saw them as going off on concession

by the now respondents.

DEANE J:  The only thing I was pointing out to you is that

Justice Anderson has neither found nor held that

your client did not have the right. What he has

said at page 78 is that the case is not about that;

it is conceded that the respondent did have

sufficient interest, but that he doubts whether

that concession was properly made. I follow in
that context that you may well say that His Honour

should not have had those doubts, but that is all

he says.

MR CHURCHES:  Yes, Your Honour. With regard to the matter

raised by Your Honour with respect to the failure

by the applicants to have made their

representations to the primary body, which is in
this case the committee standing in place as

delegate for the museum trustees, if I could turn

Your Honours to the application book, page 11, the	decision of Justice Rowland is set out there where
His Honour there refers to other members of the
association to which the applicant, in particular
Mr Bropho, belongs, the fringe dwellers of the Swan
Valley. Other members of that association are
referred to as having made representations to the
committee.

In the book of supplementary documents, which

I hope Your Honours have, containing the affidavits

relevant to this matter, at page 22 there is

annexed to one of the affidavits, at about line

40 - that is the report of the committee to the

relevant Minister, at about line 40 there is

reference to reports having been made by Aboriginal people, two in particular, to that committee. Then

Bropho 8/5/92

on page 23 of that book of supplementary documents

is set out the story which is also backed up in the

affidavit of Mr Bropho, the first applicant

himself.

That is at, in particular, page 2 of the book

of supplementary documents, in particular line 30

and onwards, where the applicant discusses the fact

that he actually did appear with other Aborigines

before the committee. It is quite plain from that

affidavit evidence, Your Honours, that there was

dissatisfaction with the composition of the

committee. That was the issue, and in our

submission the primary point that we need to

address Your Honours on is the difference in

function of the primary fact-finding body - in this

case, the committee - acting under section 18(2) of
the Act, compared with that function ultimately

carried out by the Minister under subsection (3) of

that section.

DEANE J:  I follow that point. The reason why I referred to

the fact that he had not appeared before the

committee is that the position of somebody who

appears before a committee and succeeds in getting

a favourable recommendation may, in some

circumstances, be arguably stronger as regards a

right to be heard before the Minister overrides the

recommendation, than a person who has not appeared,

but it was only in that context that I was

referring to it.

MR CHURCHES:  Thank you, Your Honour. We would submit that

the fact that there is evidence that members of the

applicant's body - the incorporated body to which

they belong - had made representations, goes some

way to the - I think it is the issue raised by Your

Honour Justice Deane in Haoucher's case, going to additional traction of legitimate expectations by virtue of a positive recommendation. Yes,

Your Honour, we will not take it further than that,

but I think that, as indicated by the Court, your

interest is in the functions of the primary body

and the ultimate political deciding body, and in

our submissions, Your Honour, they are sufficiently

different and indeed, in our submissions, quite

different, so that the requirement of procedural

fairness at the second level - if you like, the

political level - is not excluded at all.

The primary case, in our submission, relating

to this area - certainly as submitted in the

respondent's outline of argument - is O'Shea where,

of course, the majority of the High Court found

that the functions of, in that case, the medical

practitioners under the South Australian Criminal

Law Act, were so sufficiently identical with that

Brophi 6 8/5/92

final governmental decision to keep incarcerated a

sex offender that there was no requirement of

further procedural fairness to be afforded to the

prisoner.

Your Honours, if we could just look at the

wording of the South Australian Criminal Law Act as

relevant in O'Shea. It is set out in 163 CLR 393

to 394. The crucial matter there, in our

submission, Your Honours, is that the medical

practitioners are to assess the mental condition of

the prisoner to see whether:

he is incapable of exercising proper control

over his sexual instincts.

That is in subsection (1) of the relevant section.

Then in subsection (3) they are to report as to

that incapacity and then in subparagraph (3)(b)(i),

he is not to be released unless:

the Governor is satisfied ..... that he is fit

to be at liberty -

Now, in our submission, the function of the medical

practitioners there goes a very long way indeed to

covering, encompassing that which is required of
the ultimate political body compared with the
function in the Aboriginal Heritage Act under

section 18(2), where the finding of fact by the

primary body, the committee, is just that, a

factual finding of Aboriginality of a site, how

sacred is it, how important is it to the particular

Aboriginal community. They are to evaluate the

importance and significance to the Aboriginal

community and then they are to inform the Minister

of their evaluation and to recommend regarding a

proposed use. And, in our submission, that

recommendation would go to whether the proposed use

of the land would be physical destructive; whether

some or all of the particular sacred areas of a

site might be preserved. As Your Honours would be

aware, sometimes a site might contain a particular

area of higher importance than others; there might

be a sacred cave, a particular midden, whatever. That recommendation goes to, in our

submission, whether the proposed use will be

entirely destructive; whether it can encompass

reasonably the retention of the site in a form

which leaves its sanctity intact for the Aboriginal

community, whereas, on the other hand, the function

of the Minister under subsection (3) is firstly to
consider that recommendation, but then, having
regard to the community interest, to consent or

decline "to the use of the land".

Bropho 7 8/5/92

Now the reference to the community interest,

in our submission, attracts a quite wider function,

a political function if you like, but not one which

was the function for the recommending committee.

Now, in our submission those medical practitioners

in O'Shea's case have a function which goes to, for

example, not merely quantifying the sexual drive of

the prisoner; giving, perhaps, a statistical

analysis on percentage points of the likelihood of

him offending again; they report on, in their

opinion, whether he is incapable of controlling his
sexual instincts. That goes to the very heart of
the sort of issue that the governmental body, in

that case the Cabinet, through the Governor, have

to determine.

But in the instant case, Your Honours, the

recognition, or the regard to be paid to community
interest is quite a separate thing from the

peculiarly and solely fact-finding function of the

committee. Community interest might, for example,

go to the Government's estimation of whether the

tourist potential of a development or, indeed a

refusal to develop might be in the wider community

interest.

Community interest also, in our submission,

would go to an assessment of how the Aboriginal

community in particular would feel about the use,

or indeed the failure to utilize, land. That is a

particular political estimation and one which, in

our submission, the applicant should be heard on in

particular; not just whether a bulldozer or a

development might impact, but their particular

interest as representatives of the Aboriginal

community.

We note also, Your Honours, that there is a

particular additional fact at issue here, that the

land which is the subject of this litigation is, of

course, not land at large owned by any landowner

over which the relevant Minister is then given

control under the Aboriginal Heritage Act, this

happens - it is, of course, only a happenstance -

but it happens to be land owned by the Crown and,

in our submission, that is an additional factor

which goes to the importance of recognizing and

giving due weight to the necessity of procedural

fairness to the applicants because the Government,

inevitably, in determining community interest, is -

we impute no mala fides through this, but

inevitably community interest here reflects to some

extent the Government's involvement in the fact

that it is the owner of the land. It is not merely

determining this at arm's length and, in our

submission, that is a further reason for requiring

a hearing to be given to the applicants.

Bropho 8/5/92

We note further, Your Honours that, as to any argument that the reference in subsection (3) to

"general interest of the community" in our

submission does not preclude a requirement of

procedural fairness, we refer to O'Shea's decision,

particularly to the Chief Justice at pages 388 to

389 and to Justice Deane at pages 416 and 418,

noting that the mere fact that a political decision

is to be taken ultimately is not itself necessarily

exclusive of the right to procedural fairness.

Your Honours, in concluding, with reference to

the matters which have been raised by the

respondents in their outline, going to the failure,

as they put it, by the applicants to have appeared

before the committee, and we note that they did
physically appear but obviously took objection to
the composition of the committee, we note that on
our submissions of the difference in function of
Minister and committee, that the failure to be
heard at the first instance is, in fact, irrelevant
to a hearing being afforded to the applicants by
the Minister as the final decision maker, taking on

board not merely the recommendation of the

committee below, but making reference to community

interests which, in our submission, the applicants

would have important submissions to make, in

particular with regard to impact on their heritage

in general, and how any use of the land would be

acceptable, or otherwise, to their community. That

concludes the submissions for the applicants,

Your Honour.

DEANE J: Thank you, Mr Churches. The Court need not

trouble you, Ms Wheeler.

The Court has, in a number of recent cases,

examined the principles relating to the

requirements of common law procedural fairness

under a legislative scheme which provides for a

decision by a Minister or Cabinet, after a

recommendation by a statutory board, tribunal or committee which is empowered or required to hear

submissions from interested parties (see, for

example, Minister for Aboriginal Affairs

v Peko-Wallsend Limited (1986) 162 CLR 24; South

Australia v O'Shea (1987) 163 CLR 378; Haoucher

v Minister for Immigration & Ethnic Affairs (1990)

169 CLR 648).

The present case involves the application of

established by the Aboriginal Heritage Act 1972 of

those principles to such a legislative scheme provisions of that particular Act and does not, in our view, involve any question of general principle appropriate to attract a grant of special leave to

Bropho 8/5/92

appeal to this Court. Accordingly, special lea~e

to appeal is refused.

MS WHEELER:	May it please Your Honours, I seek an order for the respondents' costs of the application.
DEANE J:	Mr Churches, is there anything you can say about

that?

MR CHURCHES:  I have nothing to add, Your Honours, thank

you.

DEANE J:  The application is refused with costs.

AT 1.55 PM THE MATTER WAS ADJOURNED SINE DIE

Bropho 10 8/5/92