Minister for Aboriginal Affairs v Peko-Wallsend Ltd

[1986] HCA 40

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Brennan, Deane and Dawson JJ.

MINISTER FOR ABORIGINAL AFFAIRS v. PEKO-WALLSEND LTD.

(1986) 162 CLR 24

31 July 1986

Administrative Law—Courts

Administrative Law—Commissioner to inquire into land claims and report to Minister—Report to contain recommendation if certain facts found—Requirement to comment on detriment to others of acting on recommendation—Report made in ignorance of certain material facts—Submissions by persons who would be detrimentally affected by recommended action—Reference to material facts not known to Commissioner—Submissions not drawn to Minister's attention—Whether failure to take relevant consideration into account—Administrative Decision (Judicial Review) Act 1977 (Cth), s. 5(2)(b)—Aboriginal Land Rights (Northern Territory) Act 1976,ss. 11(1), 50(3). Courts—Practice and procedure—Discretionary judgments—Appellate court—Functions—Allegation of improper exercise of power by Minister—Discretion to refuse relief—Finding of trial judge that exercise not improper—Reversed on appeal—Exercise of discretion by appellate court—Further appeal—Grounds on which further appellate court will interfere with intermediate court's exercise of discretion.

Decisions

GIBBS C.J.: I have had the advantage of reading the reasons prepared by Mason J. and am in general agreement with them. I need add only a few remarks.

2. For the reasons given by Mason J., the Minister, in deciding whether he is satisfied for the purposes of s.11(1)(b) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Act") that land should be granted to a Land Trust to be held for the benefit of Aboriginals, is bound to take into account the matters mentioned in s.50(3) of the Act, which include the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part. In many, if not in most, cases the Minister, in considering those matters, will not need to go beyond the report of the Commissioner. However, if there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner's comments were based on an erroneous view of the facts, the Minister is bound to take that material into account. The duty of the Minister is to consider the matters mentioned in s.50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s.11(1)(b), and not on a false assumption (whether the falsity is due to a change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s.50(3). If this were not so the Minister would in some cases be obliged to reach a conclusion that would be absurd or unjust, because its basis in fact was totally unsound. The injustice might, as Wilcox J. pointed out in the Federal Court, cut either way; sometimes the error of fact might favour the Aboriginal claimants and sometimes it might work against them. It…