Norvill v Chapman

CATCHWORDS

ADMINISTRATIVE LAW )
ABORIGINAL AND TORRES STRAIT ISLANDER )
HERITAGE PROTECTION ACT ) - Judicial review of Minister's decision under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - whether Minister had "considered" representations - meaning of "considered" - effect of claim that certain representations related to matters which aboriginal tradition required to be kept secret from men - consideration of public interest in preservation of aboriginal traditions requiring confidentiality in relation to the requirement that a representation be considered and that relevant questions be able to be debated by all those interested, whether aboriginals or other persons - discussion of the scope and purpose of the Act - significance of representations in the statutory scheme - whether statutory requirements as to notice were fulfilled - meaning of requirements to give notice of "the purpose of the application" and "the matters required to be dealt with in the report" - meaning of "specified area" - consideration of Minister's duty upon receipt of an application from aboriginals - nature of application - nomination of a reporter - whether later representations amounted to a fresh application requiring a fresh nomination and notice thereof -construction of s 9.

CONSTITUTIONAL LAW - whether if a representation was required to be kept secret from a male Minister, a female Minister could have acted pursuant to a decision of the Prime Minister.

WORDS AND PHRASES - "considered" - "specified"

Aboriginal and Torres Strait Islander Heritage Protection Act
1984, ss 3, 4, 7, 9, 10, 11, 13, 22, 23, 24, 25, 27, 30 and
31
Administrative Decisions (Judicial Review) Act 1977, ss 3(3)
and 13

Chapman v Tickner (1995) 55 FCR 316 Affd
Tickner v Bropho (1993) 40 FCR 183 Cons
Scurr v Brisbane City Council (1973) 133 CLR 242 Refd
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986)
162 CLR 24 Refd
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Refd
In Re Golden Chemical Products Ltd [1976] Ch 300 Refd
Walters v Essex County Board of Education (1973) 38 DLR (3d)
693 Refd
Abalos v Australian Postal Commission (1988) 171 CLR 167 Refd

Seager v Copydex Limited (1967) 84 RPC 349 Refd
Smith, Kline & French Laboratories (Australia) Ltd & Ors v
Secretary, Department of Community Services and Health &
Anor (1991) 99 ALR 679 Refd
Jeffs v New Zealand Dairy Production and Marketing Board
[1967] 1 AC 551 Refd
Aboriginal Sacred Sites Protection Authority v Maurice; Re The
Warumungu Land Claim (1986) 10 FCR 104 Refd
GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 338-343 Refd
Gantry Acquisition Corp v. Parker & Parsley Petroleum
Australia Pty Ltd (1994) 51 FCR 554 Refd

THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS AND ISABELLA ALICE NORVILL AND DOUGLAS MILERA v THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN AND ANDREW LINCOLN CHAPMAN AND GRAHAM FRANCIS BARTON AND GARY STEPHEN KNOTT
SG 13 of 1995
SG 14 of 1995
SG 15 of 1995
SG 16 of 1995

Black CJ, Burchett and Kiefel JJ.
Adelaide
7 December 1995

IN THE FEDERAL COURT OF AUSTRALIA       )
  )          SG 13 of 1995
SOUTH AUSTRALIAN DISTRICT REGISTRY    )          SG 14 of 1995
  )          SG 15 of 1995
GENERAL DIVISION  )          SG 16 of 1995

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA
Appellants

AND:THOMAS LINCOLN CHAPMAN, WENDY CHAPMAN and ANDREW LINCOLN CHAPMAN
First Respondents
THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Second Respondent

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA
Appellants

AND:GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT
First Respondents
THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Second Respondent

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Appellant

AND:THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN and ANDREW LINCOLN CHAPMAN
First Respondents
ISABELLA ALICE NORVILL and DOUGLAS MILERA
Second Respondents

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Appellant
GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT
First Respondents

ISABELLA ALICE NORVILL and DOUGLAS MILERA
Second Respondents

CHERYL ANNE SAUNDERS
Third Respondent

CORAM: Black C.J., Burchett and Kiefel JJ.
PLACE OF HEARING: Adelaide
DATE : 7 December 1995

ORDER OF THE COURT

THE COURT ORDERS THAT the appeals be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA        )   SG 13 of 1995
SOUTH AUSTRALIA DISTRICT REGISTRY        )   SG 14 of 1995
GENERAL DIVISION  )   SG 15 of 1995

SG 16 of 1995

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA
Appellants

AND:THOMAS LINCOLN CHAPMAN, WENDY CHAPMAN and ANDREW LINCOLN CHAPMAN
First Respondents

THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Second Respondent

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA
Appellants

AND:GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT
First Respondents

THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Second Respondent

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Appellant

AND:THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN and ANDREW LINCOLN CHAPMAN
First Respondents

ISABELLA ALICE NORVILL and DOUGLAS MILERA
Second Respondents

CHERYL ANNE SAUNDERS
Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Appellant

AND:GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT
First Respondents

ISABELLA ALICE NORVILL and DOUGLAS MILERA
Second Respondents

CHERYL ANNE SAUNDERS
Third Respondent

CORAM:Black CJ, Burchett and Kiefel JJ.
PLACE OF HEARING: Adelaide
DATE:7 December 1995

REASONS FOR JUDGMENT

BLACK CJ

Introduction:

These are appeals against orders made by O'Loughlin J in proceedings seeking judicial review of a declaration made by the Honourable Robert Tickner, the Minister for Aboriginal and Torres Strait Islander Affairs, under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Act"). Judicial review was also sought of a report prepared by Professor Cheryl Anne Saunders pursuant to s.10(3) of the Act and submitted to the Minister.

The Minister's declaration, which was dated 9 July 1994, recited that he had received
an application under s.10(1)(a) of the Act, that he was satisfied that the area described in Schedule 1 to the declaration was a "significant Aboriginal area" and that it was under threat of injury or desecration. The Minister declared that, for the preservation and protection of the area from injury or desecration, an act of the kind specified in Schedule 2 must not be carried out in the area without the Minister's written consent during a period of 25 years, commencing on the day the declaration was published in the Gazette. The area in respect of which the declaration was made was described with precision in Schedule 1 and delineated on a map comprising Schedule 3; it is land on the shore of the lower reaches of the Murray River at Goolwa and on the opposite shore on Hindmarsh Island, or Kumarangk as it is known by Aboriginal people in the region, and it includes the waters of the Murray River between the areas on land.

The acts prohibited by the declaration include bulldozing, grading, drilling or excavating and any act done for the purpose of constructing a bridge in any part of the area. The effect of the declaration is to prohibit work for the construction of a proposed bridge over the lower Murray River between Goolwa and Hindmarsh Island (Kumarangk) for 25 years, except with the Minister's written consent.

The report referred to in the declaration was that of Professor Cheryl Saunders, which was forwarded to the Minister in its final form, together with the written representations, on Friday, 8 July 1994. Professor Saunders' report and the Minister's declaration were "decisions" for the purposes of the Administrative Decisions (Judicial
Review) Act 1977 (Cth) (the "ADJR Act"), pursuant to which the proceedings for judicial review were brought: see s.3(2)(e) and s.3(3) of the ADJR Act.

After a lengthy hearing, in the course of which argument was presented by the parties on many issues, O'Loughlin J concluded that the requirements of s.10 of the Act had not been complied with in two respects and he ordered that the decision of Professor Saunders be quashed with effect as of 8 July 1994 and that the decision of the Minister also be quashed, with effect from 9 July 1994. It is from those orders that these appeals are brought by Ms Norvill and Mr Milera and by the Minister.

The relevant facts are set out in detail in the reasons for judgment of O'Loughlin J, whose decision is now reported: Chapman v Tickner (1995) 55 FCR 316. The facts and the course of the litigation are also described in the judgments of the other members of this Full Court and I shall therefore turn directly to the issues with which this appeal is concerned, after first making brief reference to the scheme of the Act concerning the long-term protection of significant Aboriginal areas.

The scheme of the Act:
Section 4 contains an express statement of the purposes of the Act, as follows:

"4.The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition."

The methods adopted to achieve those purposes include the making of a declaration
by the Minister in relation to an area in respect of which he has received an application, by or on behalf of an Aboriginal person, or a group of Aboriginal people, seeking the preservation or protection of a specified area from injury or desecration. Such a declaration is provided for by s.10 and substantial penalties, which may include imprisonment for a period of up to five years, may be imposed upon a person convicted of contravening a provision of such a declaration. In addition, s.26 confers wide powers on this Court to grant injunctions to restrain conduct that would constitute a contravention of a provision of a declaration. As I observed in Tickner v Bropho (1993) 40 FCR 183, at 191, the Act is powerful in the provision it makes for the achievement of its purposes.

The Parliament has made its intention clear, however, that there are preconditions to the exercise by the Minister of the wide and important power conferred by s.10(1). These preconditions appear in s.10 itself, the relevant parts of which read as follows:

"10.(1) Where the Minister:

(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b)is satisfied:

(i)that the area is a significant Aboriginal area; and
(ii)that it is under threat of injury or desecration;

(c)has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

(d)has considered such other matters as he thinks relevant;

he may make a declaration in relation to the area.

(2)...

(3)Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:

(a)publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i)stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
(ii)inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and
(iii)specifying an address to which such representations may be furnished; and

(b)give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4)..."

It will be seen that before the Minister may make a declaration in relation to an area, he must receive a report in relation to the area from a person he has nominated and must consider that report and, as well, any representations attached to it: see s.10(1)(c). Another requirement of s.10 is that before a person submits a report to the Minister for the purposes of s.10(1)(c), that person must publish a notice in the Gazette and in a local newspaper, if any, stating "the purpose of the application" made under s.10(1). The reporter must give "due consideration" to any representations furnished in accordance with the notice and must attach them to the report when submitting it to the Minister.

In the present case, O'Loughlin J held that an essential precondition to the exercise of the Minister's power had not been satisfied in that, although the Minister had received Professor Saunders' report, what occurred did not amount to the Minister having "considered" the representations forwarded to him with the report, as required by s.10(1)(c). His Honour also held that an essential part of the reporting process was flawed because the notice published did not, in several respects, state the purpose of the application, as required by s.10(3)(a)(i).

Whether the notice stated the purpose of the application:
The notice published in the Gazette of 26 May 1994 and in the Adelaide Advertiser of 28 May 1994 recited that the Minister had "received an application made under s.10 .... [of the Act] ... on behalf of Aboriginals seeking the preservation and protection from further injury or desecration of significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia ...". The notice did not otherwise purport to state the purpose of the application.

O'Loughlin J held that to state the "purpose of the application" it was necessary to identify in the notice three things: the specific area for which preservation or protection was sought, the apprehended injury or desecration and the identity of the applicant(s). His Honour held that the notice was deficient in all three respects.

In considering the content of the requirement to state the purpose of the application it is important to recognise that the notice required by s.10(3)(a) is intended to do
more than merely inform interested persons about an application. The notice is required to invite interested persons to furnish representations in connection with the report, and to facilitate this, it must specify the address to which those representations are to be furnished. At least fourteen days after the date of publication of the notice in the Gazette must then be allowed for representations to be furnished.

As well as stating the purpose of the application, the notice must state "the matters required to be dealt with in the report." The evident function of this requirement is to direct the attention of those who are invited to furnish representations to the particular matters the reporter will be covering, so as to enable useful representations to be made.

The reporting process also requires the reporter to give "due consideration" to any representations "so furnished" and, when submitting a report to the Minister, to attach the representations to the report. The Minister, having received a report, is obliged to consider not only the report but any representations attached to it. As I shall point out when addressing the other main issue in this appeal, the obligation to "consider" the representations is an obligation to give personal consideration to them.

The legislative intention revealed by this scheme is that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an informed application under s.10(1). The intention is that the Minister should make an
decision on all relevant questions, with input from interested persons: see Tickner v Bropho at 194. The Parliament no doubt intended that the "interested persons" would include those who might oppose the making of a declaration as well as those who might support it. In all these circumstances, it would be contrary to the legislative intention to interpret narrowly the requirement imposed by s.10(3)(a)(i) that the notice must state the purpose of the application made under s.10(1): cf. Scurr v Brisbane City Council (1973) 133 CLR 242 at 252 per Stephen J.

I now turn to consider whether the requirement to state the purpose of the application involves, as O'Loughlin J held, a requirement to identify the specific area for which preservation or protection is sought.

In considering this question it is desirable to commence with an examination of s.10(1)(a) because it is only when the Minister receives an application in accordance with s.10(1)(a) that the process under s.10 can begin. An application under s.10(1)(a) must, according to the terms to the sub-section, seek the preservation or protection of a specified area from injury or desecration. It is that area, the specified area, about which the Minister must be satisfied before he may make a declaration in relation to it and it is in relation to that specified area that the Minister must receive a report. When s.10(4) refers to "a report in relation to an area" it refers back to s.10(1)(c) which in turn refers to "the area", that is to say, the specified area for which preservation or protection is sought in the application made under s.10(1). Thus, the various references in s.10(4) to "the area" in the description of the matters with which
the report must deal, are references to a specified area that is the subject of the application that enlivened the process. None of this means that a valid application under s.10(1)(a) must describe the area sought to be protected with the degree of detail that one would expect in a declaration, the breach of which is punishable by fine or imprisonment or both. But the area must be "specified". Section 10(1)(a) requires that the area be a specified area and this requirement is not satisfied by vague generalities. There must be some reasonable identification of the area.

This conclusion, which follows from the ordinary meaning of the expression "a specified area", taken in its context, is confirmed by reference to the policy of the section. This requires that members of the public should have an effective opportunity to make a contribution to the decision-making process. If an application could be quite general about the area for which protection was sought it might well be difficult for interested persons to know what was in issue. It should also be noted that the words "specifying" and "specified" are used elsewhere in the same section to indicate a requirement of clarity and precision; in s.10(3)(a)(ii) there is a reference to a "specified date" and in s.10(3)(a)(iii) the operative expression is "specifying an address".

It was submitted on behalf of the appellants that the circumstance that applications under s.9(1) for emergency declarations and applications under s.10(1) for declarations of potentially long duration may in either case be made orally, as well as in writing, suggests that no great degree of formality is required for a valid

application. It was argued that for this reason a general description of the area in the application will be sufficient and, consequently, only a general description of the area need be given in the notice. I agree that the fact that an application may be made orally points, along with other circumstances, to the conclusion that an application seeking preservation or protection need not involve any great degree of formality but there is no getting away from the fact that the application must be for "a specified area" and the circumstance that the application may be made orally, and without formality, does not provide a reason to deprive the expression "specified area" of its ordinary content. This is because there is no necessary inconsistency between a genuine application that is oral and informal and the requirement that it be for the protection of a specified area. Of course, grid references and the like would not be expected in an oral application, but it is not inconsistent with there being an oral application to require identification of the location of the area sought to be protected and its outer boundaries.

It was also argued that since one of the matters with which the report must deal is the extent of the area that should be protected (see s.10(4)(c)) it cannot have been intended that the area for which protection was sought should be closely defined. The answer to this submission, however, is that the report must, in terms, be a report in relation to "the area", which is the specified area for which protection is sought and it is quite reasonable to suppose that the area for which protection should actually be granted might be less in extent than the area specified in the application seeking protection.

If, as I conclude, the expression "a specified area" in s.10(1)(a) has its ordinary meaning, a valid application will require a reasonable identification of the area sought to be protected. Generalities will not be sufficient because they will not result in an application that is for "a specified area". Since a valid application is one for a specified area and since the requirement to state the purpose of the application should not be narrowly construed, the requirement to state "the purpose of the application made under sub-section (1)" must be taken to involve a requirement to identify the area sought to be protected. Of course, once there has been sufficient identification of the area in the application to justify the conclusion that the application is for the protection of a specified area, no additional burden is imposed on those responsible for publishing the notice by the need to identify the area when stating the purpose of the application. In that way people will know one of the basic things that the application is about - the protection of the area that is actually specified.

It was said that identification in a public notice of an area sought to be protected might lead to further injury of the area or to a violation of traditional beliefs and that this would be contrary to the purposes of the Act. It must be recognised though, that the protection afforded by the Act ultimately does involve public identification of the areas being protected. This is so in all cases, including when an authorised officer makes an emergency declaration in relation to an area under s.18. An authorised officer must, as soon as practicable after making an emergency declaration, take reasonable steps to give notice of it to persons likely to be substantially affected and
the declaration must describe the area with sufficient particulars to enable it to be identified: see s.19(1)(b) and s.18(2)(c)(i). No prior public notice is, however, required. Likewise, under s.9, an emergency declaration may be made without prior public notice, so that protection is possible before the public generally knows about an area's connection with Aboriginal beliefs and traditions; but the declaration itself must describe the area with sufficient particulars to enable it to be identified: s.11(a). Such a declaration must be published and the Minister must take reasonable steps to give notice of the declaration, in writing, to persons likely to be substantially affected by it: s.14(2). So, whilst the dangers of revealing the location of an area can readily be appreciated, there are mechanisms in the Act for emergency protection without prior notification. Protection does involve, in all cases, publication of the location. It would therefore be wrong to conclude that considerations derived from the purposes of the Act lead to the conclusion that a statement of the purpose of the application need not include the location of the land sought to be protected.

In the present case, the Minister treated as the application under s.10(1) a letter to him from the solicitor for the Aboriginal Legal Rights Movement Inc. dated 23 December 1993. It was in respect of the application contained in that letter that he appointed Professor Saunders and she did not receive an appointment in respect of any other application. The letter dated 23 December 1993 referred to particular sites. They were described in the letter itself as "the two major campsite areas adjacent to the bridge approaches, and the sites on Hindmarsh Island as a whole" and those sites were further described in a letter to the State Minister for Aboriginal Affairs, a copy
of which was attached to the letter sent to the Commonwealth Minister.

There is a marked contrast between the identification of the area sought to be protected in the document that was treated as the application under s.10(1) and the notice published pursuant to s.10(3)(a). That notice referred only to "significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia". This is far too general a description and I agree with O'Loughlin J that the notice did not state the purpose of the application made under s.10(1) for the reason that it did not adequately identify the area for which protection was sought.

The appellants relied upon letters from ALRM dated 7 and 12 April 1994 as enlarging the area adjacent to the proposed bridge described in the original application and submitted that the notice did, in the circumstances, sufficiently identify the enlarged area with which Professor Saunders' report was to be concerned. In her report, Professor Saunders points to the discrepancies between the areas described in the application of 23 December 1993 and the letters of 7 and 12 April 1994. Professor Saunders noted in particular that the 23 December 1993 application, the only application to which her instrument of appointment referred, made no mention of the Goolwa channel, and the potential significance of the channel had not begun to be fully understood until April 1994. This, she commented, presented some difficulties for the preparation of the report and she suggested that the letters of 7 and 12 April 1994 might be seen as supplementary to the application of 23 December 1993. But even taking this view, the notice published in the Gazette does not give any
reasonable indication of the area or areas to be dealt with in the report. Whilst the ALRM letters of 7 and 12 April 1994 were careful to address the need for the application to be for the protection or preservation of a "specified area", a matter about which the ALRM was quite correctly concerned, the notice that was specified would convey little to any person without special knowledge of the relevant facts. The purpose of the notice under s.10(3) is not to inform people with special knowledge, but to invite representations from interested persons in the public at large.

Although it is not necessary to decide the point I should also mention the course of events is open to the interpretation that the letter of 7 April amounted to an entirely new application in respect of a much larger specified area adjacent to the site of the proposed bridge, and involving the Goolwa channel. If this be correct, then that application should have been dealt with separately and a reporter appointed for that purpose. There would, of course, have been no reason why the same reporter should not, in the circumstances, have been appointed to consider both applications. If, in truth, the facts were that the Minister had received a second application for the protection of a different specified area then, in the absence of a nomination of a reporter to prepare a report in relation to that area, and the receipt and consideration of such a report and the representations attached to it, there would simply be no power to make a declaration in relation to the different specified area. Had the reporter who was appointed to deal with an earlier application perceived that there had been a later application in respect of a different specified area, that reporter would have had no mandate to publish an advertisement in respect of an application
for which she had not been nominated as the reporter. The point is that the procedure under s.10 is directed to a particular application in respect of a specified area. The original application defines the scope of the Minister's powers with respect to that application and likewise defines the scope of the reporter's function.

It is less clear whether, to satisfy the obligation to state the purpose of the application, it is necessary for the notice to identify the apprehended injury or desecration against which the application seeks protection. There are two aspects of the concept of injury or desecration that could be involved here: first, the activity or activities that are regarded as constituting injury or desecration and, secondly, the reasons why such activities are regarded as constituting injury or desecration.

As a practical matter, however, it is to be expected that an application for protection will indicate very clearly the nature of the activity constituting the threat against which the protection of the Minister's declaration is being sought. The range of the possible injury and the wide extent of the Act's capacity to protect can be seen from some of the definition provisions in s.3. Thus, in s.3(1) it is provided that unless the contrary intention appears:

"'Aboriginal tradition' means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships".

The definition of "Aboriginal tradition" applies to the definition of injury or desecration in s.3(2) which provides that for the purposes of the Act an area should
be taken to be injured or desecrated if:

"(i)it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii)by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
(iii)passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition".

The wide range of activities that could amount to injury or desecration, and in respect of which an application might be made, together with the practical likelihood that an application to the Minister will identify the apprehended injury or desecration, leads me to conclude that to state the purpose of the application in conformity with the requirement of s.10(3)(a)(i), it is necessary to state, at least, the activities that constitute the perceived threat of injury or desecration.

If, as would seem most unlikely, an application seeking the preservation or protection of a specified area did not, either specifically or by necessary inference, reveal the nature of the activities constituting the apprehended threat of injury or desecration then, obviously, the content of the notice would be limited in that respect. The validity of an application made in such circumstances might be in doubt, but that is not a question that needs to be considered in this case. However, where an application does reveal the nature of activities that constitute the perceived threat of injury or desecration then, in my view, it reveals part of its purpose and this in turn needs to be stated as part of the statement of the purpose of the application required by s.10(3)(a)(i). In the present case, the notice did no more in this respect than repeat the words of s.10(1) and, however the application is viewed, this was an
insufficient statement of its purpose.

In this, and in other respects, any suggestion that "everyone knew" what the matter was all about is quite beside the point. Carried to its logical conclusion, such an approach would render almost redundant the requirement, intended by the Parliament, that there should be published a notice having particular characteristics. In my view, the language of s.10(3) and the important purpose of the notice in the process of reporting and decision-making provided for by the section, requires the conclusion that a failure to state the purpose of an application invalidates the s.10 process. Before turning to the next aspect of this question, I should say that I have not found it necessary to go further and to determine whether the statement of purpose need reveal anything about the traditions and beliefs affected by the activities against which protection is sought. In considering that matter one would need to be particularly mindful of the policy of the Act with respect to preservation, and the danger of offending traditions of Aboriginal people by disclosing beliefs of a particular character to the world at large, balanced against the policy of the Act with respect to the reporting process.

It remains for me to consider whether the requirement to state the purpose of the application involves a requirement to identify the person or persons by whom, or on whose behalf, the application has been made. There may be very good reasons why, as a matter of policy, it would be desirable for people to know by whom, or on whose behalf, an application under the Act was made in respect of a specified area. But
desirable though it might be to let people know by whom or on whose behalf an application has been made, I think it is stretching the meaning of "purpose" to conclude that a requirement to state the purpose of an application involves a requirement to state by whom the application is made, particularly when there is no statutory requirement for the applicant to have any greater connection with the area sought to be protected other than to be, or to act on behalf of, an Aboriginal person or a group of Aboriginal people.

In the last respect, therefore, I do not agree with the learned primary judge but nothing turns on that because I agree that the notice was deficient in the other respects that I have mentioned.

Whether the representations were considered:
Section 10(1)(c) of the Act requires the Minister to consider both the report under s.10(4) in relation to the area received from a person nominated by him, and any representations attached to the report. In the context of the Act, given the policy of public involvement in the process and the potential gravity of the consequences of granting or withholding a declaration, it is clear that the Minister's duty to consider under s.10(1)(c) is a provision compliance with which is a necessary step in the exercise of power under s.10: cf. Hunter Resources Ltd v Melville (1988) 62 ALJR 88 at 94-5 per Dawson J. There is no distinction made by the Act between the report and the representations for this purpose. The treatment of the representations under the Act is different from the treatment of material upon which the report was based
in Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 because in that case there was no legislative requirement that the decision-maker consider background material upon which the report was based. The reporter, for his or her part, is required by s.10(3)(b) to give "due consideration" to any representations furnished under s.10(3)(a) in connection with the report and he or she is under a statutory duty, when submitting the report, to attach such representations to it.

The Minister must personally consider the report and any representations attached to it. This is because the powers and functions of the Minister under s.10 (and under ss.9, 12, 13(2), Part IIA and s.26) are specifically excluded from the power of delegation conferred by s.31(1). The exclusion is, in terms, quite general and it was not suggested that the exclusion from the power of delegation of the Minister's powers and functions under s.10 was confined to the making of a declaration and that the Minister could nevertheless delegate the consideration of the report and any attached representations to anyone else.

The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s.10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act - the explicit requirement that the Minister consider the representations - that removes the process under s.10 from the general rule that a Minister is not expected to do everything personally: see the observations of Brennan J in FAI Insurances Ltd v. Winneke (1982) 151 CLR 342 at 416 adopting Lord Reid's comments in Ridge v. Baldwin [1964] AC 40 at 72; cf. O'Reilly v. State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11-12 per Gibbs CJ. The express requirement that the Minister consider the representations also gives rise to a more precisely defined duty binding on the Minister than the Minister's duty to consider matters in connection with satisfying himself or herself that a grant of land should be made under s.11 of the Aboriginal Land Rights (Northern Territory) Act 1976: cf. Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 at 30-1 per Gibbs CJ, at 37-9 per Mason J and at 63-5 and 65-6 per Brennan J.

The requirement of substantial and non-delegable personal ministerial involvement is consistent with the evident intention of s.10, as I have described it earlier in these reasons, that interested persons will have an effective opportunity to provide information and to express opinion concerning important issues involved in the consideration of an application under s.10(1) and that the decision-maker, the
Minister, shall make an informed decision on the questions in issue, having considered the representations of interested persons.

It must also be remembered that the obligation to consider, imposed separately upon both the reporter and the Minister, is an obligation to consider each representation. The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.

It was argued that the obligation to consider the representations should be construed in such a way as to take account of the urgency with which such consideration might have to be given. This, in effect, meant that the obligation to consider should be read down. The short answer to this submission is that there is no reason to suppose that the urgency in this matter will be present in every case. The fact that there was difficulty here provides no warrant for reading down the content of the very important obligation to give personal consideration to the report and the representations.

During the hearing before the O'Loughlin J it was not suggested that the Minister had "considered" all the representations by reading them. Indeed, it was apparently submitted on behalf of the Minister that he had no such responsibility. Rather, it was submitted that the Minister had considered the representations:

"... by a combination of reading the Saunders report which itself reflected the representations as well as discussing the representations which Ms Kee had read and obtaining her advice that the representations which she read were adequately reflected in the Saunders report."

O'Loughlin J examined this issue on the footing that there needed to be "substantial personal involvement" on the part of a person who was required "to consider" the written material. This did not mean that the person must read every word of every document; a busy Minister was entitled to receive assistance from his staff. The judge concluded, however, that the Minister did not give any "consideration" to the representations at all. He came to this conclusion because of a combination of factors, which he set out.

One of those factors involved a finding of fact - which was not in issue - that the representations were not available to the Minister or his staff until the day preceding the making of the s.10 declaration on Saturday, 9 May 1994. His Honour went on to say that the evidence of the Minister's adviser, Ms Kee with respect to the Minister's commitments in the critical 24 hour period preceding the making of the declaration, together with the time taken by her to consider the representations, justified the finding that the Minister's busy schedule could not have given him sufficient time to "consider" the representations to the requisite degree. I pause here to note that the relevant pages of the Minister's diary were tendered in evidence and they do indeed show that the Minister had a very busy schedule on the day before the making of s.10 declaration. I should also note at this point that it is clear that the Minister did not have physical access to the representations, other than some that were sent to him by facsimile, because they were in his Canberra office and the Minister was in or near Sydney for the whole of Friday, 8 May 1994.

Before us, counsel for the Minister submitted that the Minister had considered the representations by a process that involved discussion of them with Ms Kee, she having read the representations, and obtaining Ms Kee's advice as to whether or not the representations were adequately reflected in the Professor Saunders' report. This submission was based to a very substantial extent on Ms Kee's evidence. She swore an affidavit upon which counsel for the Minister relied. Ms Kee was cross-examined at length before the trial judge; in fact she was in the witness box for some three days and the transcript of her evidence occupies almost 200 pages. Even accepting, for the moment, that a representation can be "considered" in the manner suggested, the success of the submission in this case was critically dependent upon the evidence of Ms Kee. The trial judge discussed that evidence and he found that under cross-examination it became apparent that the extent and description of the discussion Ms Kee had had with the Minister was "vague and nebulous". His Honour then said that he rejected the submission by counsel for the Minister that the Minister's reading of Professor Saunders' report coupled with his discussions with Ms Kee constituted a "consideration" by the Minister of the representations.

Having read the transcript of the whole of Ms Kee's evidence as reproduced in the appeal books, I can see no basis upon which the trial judge's finding about her discussions with the Minister can be successfully challenged.

Counsel for the Minister sought to make something of the failure of the judge to mention, in his reasons, the statement made by the Minister in a television interview
in which he said that his decision was based upon Professor Saunders' report and "all the other representations that were made to me". This out of court statement by the Minister does not seem to me to add anything to the Minister's case having regard to the way in which it was put, in reliance on the evidence of Ms Kee. She gave detailed evidence about the process by which it was said that the Minister's decision was based on all the representations and the judge's failure to mention what the Minister said in the television interview does not reveal any error in his approach to this issue.

In any event, the process that counsel on behalf of the Minister sought to put forward as the Minister's "consideration" of the representations was, in my view, flawed. As I have said, the consideration of a representation involves an active intellectual process directed at that representation and again the point must be made that s.10 is explicit in its requirement that not only must the reporter give consideration to the representations but the Minister must do so as well. A report, written after due consideration of the representations by the reporter, might or might not, "reflect" them. In either event, the section makes it clear that the Minister must personally consider the representations and it is the representations that must be contemplated, not another document which is thought by someone else "adequately to reflect" the representations.

This does not mean that the Minister is denied the assistance of a staff member in the process of considering the representations. A staff member might, for example, sort the representations into categories. He or she might put together all the
representations that are in common form so that they can be considered together. In some cases, a summary of technical supporting material, such as legal and financial documents, might be provided and it would certainly be in order, in my view, for a competent staff member to assist the Minister by making sure that supporting technical documents were what they purported to be. I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it.

Examples of the sort of representation that would need to be read personally may be found amongst the 400 or so representations forwarded with, and notionally attached to, Professor Saunders' report. Some of these make important points by the use of photographs and the form of some representations conveys meaning in other ways. Such representations need to be seen to be "considered".

Whilst, then, a Minister may certainly have assistance for the purpose of considering representations, they must be truly considered and the process adopted in the present case, relying as it did upon Ms Kee's opinion about the adequate "reflection" of the representations, was insufficient. I therefore conclude that the trial judge was correct in holding that the obligation imposed by s.10(1)(c) of the Act to consider the representations had not been fulfilled.

O'Loughlin J also examined the Minister's role with respect to two confidential
appendices to the report of Dr Fergie which was furnished to Professor Saunders with the supplementary submission of the ALRM. The appendices were placed in sealed envelopes bearing the notation that the contents should not be read by men. His Honour concluded that it was essential that the Minister have full details of the claims so that he might appropriately consider them and the weight he should give them. I do not understand his Honour to have concluded that the contents of the envelopes should have been shown to any other man - only to the Minister, who was the decision-maker.

It must be recognised that there is an inevitable tension between the need for a decision-maker to know the relevant facts in accordance with the requirements of administrative decision-making or in accordance with the requirements of the judicial process on the one hand and, on the other hand, a system of beliefs and traditions originating in times when such external elements were entirely absent.

Successive Aboriginal Land Commissioners appointed under the Aboriginal Land Rights (Northern Territory) Act 1976, all five of whom have been men, have had to deal with problems of this nature. Secret knowledge has been made known to them with the authority of those who are custodians of it. Published practice directions and reasons for decision show that the Commissioners have been concerned to develop procedures to respect and uphold, as far as possible, the traditions and beliefs of Aboriginal people with respect to secret matters. The publication of such directions underlines the desirability for there to be a very clear understanding of the procedures
that are available. The questions involved are discussed in the Law Reform Commission's Report No 31 The Recognition of Aboriginal Customary Laws chapter 25, especially at pp 483-491, where some examples are given of the procedures adopted.

Section 27 of the Act recognises that circumstances may arise in which it will be desirable, having regard to the interests of justice and the interests of Aboriginal tradition, to order the exclusion of the public from a proceeding in a court arising under the Act and to make orders preventing or limiting the disclosure of secret matters. Section 27 does not, however, touch upon the question whether or not the Minister may deny himself access to material submitted to him by way of representation. The section must, in my opinion, be taken to proceed upon the footing that the decision-maker - the judge who constitutes the court in which the proceedings under the Act are heard - will be made aware of secret matters that the interests of justice and Aboriginal tradition may require to be kept secret from other people.

In the present case there can, in my view, be no doubt that the obligation imposed upon the Minister by the Act to consider any representations attached to a report submitted to him for the purposes of s.10(1)(c) is not subject to any implied exception to the effect that the Minister need not consider them if, according to Aboriginal tradition, the matters contained in them are only to be disclosed to a person of the opposite sex. The Act proceeds upon the clear basis that the actual decision-maker,
the Minister, must consider the report and the representations attached to it.

It is of great importance that all concerned know what the requirements of the Act are in this respect. If Aboriginal people and those advising them have a clear understanding that the obligation to consider all representations is part of the process of protection, then they can make an informed decision about whether, and to what extent, information should be given in support of an application. It may be that this did occur in the present case and I note that in paragraph 4.4 of Dr Fergie's report there is reference to the deep concerns of women about the disclosure of information "in a process which could lead to it becoming known by a man, the Minister for Aboriginal and Torres Strait Islander Affairs". It is not, however, clear what occurred in this regard.

It was submitted that the confidential appendices were not representations for the purposes of the Act and for this reason did not have to be considered by the Minister. I am unable to accept that submission because the confidential appendices to Dr. Fergie's report were very much part of the report, which in turn was an important part of the supplementary submission submitted by the ALRM to the reporter. In my view, Professor Saunders was correct in treating the whole ALRM submission, including the supporting material, as a representation and "attaching" the documents comprising that representation to her report when she submitted it to the Minister.

In these circumstances, the remaining question is, again, whether the Minister considered the part of the representations comprising the confidential appendices to Dr. Fergie's report.

The Minister did not look at the confidential appendices himself but Ms Kee did read them and she assured the Minister that there was nothing in the confidential appendices that did not support what was said in Professor Saunders' report. For the reasons given earlier concerning the issue of consideration generally, I conclude that what occurred did not amount to the required consideration of these representations.

Before leaving this topic, I should point out that the judgment appealed from did not turn on this point, in the sense that when O'Loughlin J moved to this aspect in his reasons for judgment he had already found that the Minister's decision involved reviewable error in that the representations as a whole had not been considered. He had also already found that proper notice had not been given.

Conclusion:
A failure, such as occurred in this matter, to comply with the notice provisions of the Act is a defect in the statutory process that cannot be cured except by the publication of a further notice. This rules out the possibility of referring the matter to the Minister for consideration of the representations.

It follows from what I have said about the two main issues that I would dismiss the appeals, with costs.

In these circumstances it is not necessary to consider the alternative contentions of the respondents.

I certify that this and the preceding 30 pages are a true copy of the Reasons for Judgment of the Honourable Chief Justice Black.

Associate:

Dated: 7 December 1995

IN THE FEDERAL COURT OF AUSTRALIA       )
  )          SG 13 of 1995
SOUTH AUSTRALIAN DISTRICT REGISTRY    )          SG 14 of 1995
  )          SG 15 of 1995
GENERAL DIVISION  )          SG 16 of 1995

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA

Appellants

AND:THOMAS LINCOLN CHAPMAN, WENDY CHAPMAN and ANDREW LINCOLN CHAPMAN

First Respondents
THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Second Respondent

CHERYL ANNE SAUNDERS

Third Respondent

BETWEEN:ISABELLA ALICE NORVILL and DOUGLAS MILERA

Appellants

AND:GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT
First Respondents
THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Second Respondent

CHERYL ANNE SAUNDERS

Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Appellant

AND:THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN and ANDREW LINCOLN CHAPMAN

First Respondents

ISABELLA ALICE NORVILL and DOUGLAS MILERA

Second Respondents

CHERYL ANNE SAUNDERS

Third Respondent

BETWEEN:THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Appellant

GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT

First Respondents

ISABELLA ALICE NORVILL and DOUGLAS MILERA

Second Respondents

CHERYL ANNE SAUNDERS

Third Respondent

CORAM: Black C.J., Burchett and Kiefel JJ.
PLACE OF HEARING: Adelaide
DATE : 7 December 1995

REASONS FOR JUDGMENT

BURCHETT J.:

Considerable controversy surrounds the events that led up to this litigation. They are the subject of an inquiry, by a Royal Commissioner appointed by the Government of the State of
South Australia, into allegations of the fabrication of a secret folklore, which a small group of Aboriginal women have claimed to hold by tradition as peculiarly their own. On the basis, in large measure, of this claim, the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs ("The Minister") issued declarations that were the subject of applications to the Court under the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act"). Then, from the orders made in those matters, the Minister brought the present appeals.

Applications under the Judicial Review Act do not involve reconsideration by the Court of the facts of the decisions under review, but supervision by the Court of the legality of those decisions. Often it is necessary to recount the facts in order to make clear the legal issues in question; however, the limitations on the Court's role must always be borne in mind. In the present cases, the continuing investigation into the facts and the extent of the dispute about them make it doubly desirable that I should confine myself to a bare outline of what is essential for an understanding of the points of law I must decide. I shall take as my source, in the main, the judgment of the learned Judge at first instance, which is reported as Chapman v Tickner (1995) 55 FCR 316.

Some years ago, in about 1989, residential development and the provision of services on Hindmarsh Island (known in a local Aboriginal tongue as "Kumarangk"), in the delta of the river Murray, led to the conception of a project to build a bridge across the channel between the mainland and the island. About 320 marina berths and 170 allotments on the island had been sold by companies in which the applicants, Mr and Mrs Chapman and their son ("the Chapmans"), were interested; and services had been established, including a licensed tavern, general store and ships' chandlery, fuel outlet, and workshops. Water and sewerage and other works had been undertaken. An archaeological report had been compiled for the location, recording, and assessment of Aboriginal sites on the island. All this had taken place over a period in excess of ten years. For the future, the provision of at least a further 600 allotments on the island was contemplated.

There is a cable-drawn vehicular ferry which links the island to the mainland at the town of Goolwa, and about the island there are a number of barrages built to control water flows in Lake Alexandrina. The local government authorities responsible for the region including Goolwa and Port Elliott appear to have considered that the ferry had become inadequate to meet the growing requirements of the population. In 1989, as Professor Saunders later wrote in a report to which further reference will be made, the

"proposal for the bridge originally emerged as a condition of planning approval for the construction of a Marina complex on Hindmarsh Island by Binalong Pty Ltd [one of the companies associated with the Chapmans]. The then State Government appears to have taken the view that greater use of the island in consequence of construction of the Marina would necessitate more ready access to it than the current ferry service, already subject to criticism, could provide."

Ownership of the bridge was to vest in the local council, but it was to be built by the company Binalong Pty Ltd. There was to be a contribution from the State of half the capital cost or three million dollars, whichever was the lesser amount, a contribution that recognized the saving of ferry operating costs, and presumably also the public gain in efficient transport. Indeed, the Government's involvement was such that later, in March 1993, it agreed, as Professor Saunders reported, "to replace Binalong Pty Ltd as the party with overall responsibility for financing the bridge".

The marina development proceeded between 1989 and 1993, by when a substantial portion of it had been completed. Preliminary site works started on the bridge in October 1993, but were stopped following protests by various groups. It was at about this time that a body called the Lower Murray Aboriginal Heritage Committee called on the Minister to intervene. On 23 December 1993, a letter was written on its behalf to the Minister by the Aboriginal Legal Rights Movement Inc. It applied to him to consider the use of his powers under s. 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Act"), in order to protect certain aboriginal sites should the new State Minister for Aboriginal Affairs fail to exercise his powers. A copy of a detailed letter of the same date to the State Minister was enclosed. That letter complained of the processes involved in the making of the original decision of the State Government, but it also raised particular objections to the bridge works continuing at that time. The letter stated:

"I understand that the archaeological team currently conducting the survey at Goolwa and Hindmarsh Island have very recently discovered two major Aboriginal camp Sites, of critical significance to Aboriginal people. One runs along the foreshore at Goolwa either side of the current ferry for in excess of 1 kilometre, thought to originally extend for 3 - 4 kilometres continuously. The other Site is on the Island immediately adjacent to the ferry causeway and running continuously for a half kilometre north. I understand that the proposed bridge approaches `go through the middle' of at least the Goolwa camp Site, and that the bridge would destroy the physical and visual amenity of both Sites. The camp Sites represent the primary and traditional home for several Aboriginal clans and family groups to which several Aboriginal people living today can directly relate. For these Aboriginal people these camp Sites represent a living association with country and culture. Clearly the construction of the bridge as proposed will damage, disturb and interfere with at least these two major Aboriginal Sites of significance, ...

. . .

At the very least, I urge you to exercise your powers giving directions prohibiting the construction of the Hindmarsh Island Bridge whilst the comprehensive archaeological survey is completed in relation to Aboriginal Sites on the Island, and until a report is produced on the likely impact of increased visitor traffic and development on Hindmarsh Island in relation to those Sites should the bridge be built. Consideration with respect to the protection provisions of the Act, could then be given to the overall impact of the bridge, (a) directly upon the two major camp Sites by the construction process, and its visual impact, in conjunction with (b) the impact on Sites by the greater visitor traffic and development as a result of the bridge."

In the letter to the Commonwealth Minister, having enclosed the letter to the State Minister, the writer contented himself with formulating the application as follows:

"I ask that you consider making declarations pursuant to Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to protect the two major camp Site areas adjacent to the bridge approaches, and the Sites on Hindmarsh Island as a whole, which are significant to Aboriginal persons, and, which are under the threat of injury and desecration, by the construction of the proposed Hindmarsh Island Bridge, should the State Minister for Aboriginal Affairs fail to enforce the provisions of Section 23 Aboriginal Heritage Act 1988 (South Australia), and, or exercise his powers under Section 24(1)(d) of the said Act.

I look forward to your reply with respect to this matter at your earliest convenience."

It will be observed that the letters are concerned with the archaeological investigation of camp sites which might be directly affected by the bridge, and with the possibility of indirect effects upon other sites on the island through the facilitation of access to the island generally. There was no suggestion of any ritual taboos associated with the island, or that the sites were actually known to be other than general camp sites requiring archaeological investigation, nor was there any reference to current use of or resort to the area by Aboriginals for any purpose. What was said was simply that the sites "represent the primary and traditional home" for clans "to which several Aboriginal people living today can directly relate". So far were the letters from alleging any effect upon presently existing activities or beliefs cherished by Aboriginals that the two major camp sites said to be "of
critical significance" were referred to as "very recently discovered". I do not point this out to diminish the importance of archaeological sites, which may be very great and is in any case not for me to assess, but because what is for me to assess is the legal nature of the application made and of the issues raised by it.

Neither the State Minister nor the Commonwealth Minister acted on either of the applications made in these letters. On 6 April 1994, the State Minister informed the Commonwealth Minister that the South Australian Government had been advised it was bound by obligations undertaken by the previous Government, so that the bridge would proceed. On 7 April 1994, the Aboriginal Legal Rights Movement wrote to the Minister, asking him to act under s. 9 of the Act, and on 20 April the Movement wrote again, in part as follows:

"In the course of the past four days my client's [sic] have reluctantly divulged some secret/sacred information about the Hindmarsh Island, the Lakes and Coorong area including the sea, in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition. They have given me instructions to disclose this information to you to assist your assessment of the importance of this matter for aboriginal people and in particular the Ngarrindjeri people.

`Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong. The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life. The Goolwa Channel is the "Meeting of the Waters", and is of crucial importance in these terms.

Consequently, the bridge proposal is culturally destructive. It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People.

The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the "meeting of the waters". The bridge would also create a permanent physical connection between Kumarangk and the Mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture'."

This was the first claim of its kind made to the Minister in the matter. When it was made, there was then no assertion that the "secret/sacred information" was "women's business" (as it was later called), that could not be revealed to men.

On 12 May 1994, the Minister made a declaration under s. 9 of the Act, and on 9 June under s. 9(3) he extended it. As extended, it operated to prevent work proceeding upon the construction of the bridge until 10 July 1994. It was in the context of these events that, on 23 May 1994, the Minister nominated Professor Cheryl Saunders to submit a report to him under s. 10 of the Act. He did so in the following terms:

"Whereas on 23 December 1993, I Robert Edward Tickner, Minister for Aboriginal and Torres Strait Islander Affairs, received an application made under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) seeking the preservation or protection of a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island, on behalf of Aboriginal people.

I now appoint Professor Cheryl Anne Saunders to report to me in accordance with section 10(4) of the Act to enable me to consider whether under section 10(1) I may make a declaration in relation to the area."

Several things should be noted about this nomination or appointment. It states that the purpose is "to enable me to consider whether ... I may make a declaration". By virtue of s. 10(1) of the Act, the Minister "may make a declaration" only where he has (inter alia) received the report, but the purpose of the report is not to enable him to consider whether he is empowered to make a declaration, but whether he should do so. Whether he should do so, in a particular case, is a question involving the weighing of conflicting interests, which may be very serious. The next thing to notice is that the application under s. 10, to which the report is to relate, is the application made by the letter of 23 December 1994. That application said nothing about "women's business". The third thing to notice is the extreme vagueness of the indication of the area involved. The letter of 23 December 1993 is quite clear in its references to identifiable camp sites near the bridge works that are of archaeological interest, and to other sites, that cannot be identified without further archaeological investigation, on the island itself. But the Minister refers to "a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island". Which of the sites is the significant area in question?

Professor Saunders seems to have attempted to overcome the last problem, in the advertisement inviting interested persons to furnish representations which she was required by
s. 10(3) of the Act to publish. She simply changed "a significant Aboriginal area ... " to "significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia". But what were people who might, had they understood the advertisement, have been "interested persons" to gather from that? Which areas were said to be "significant"? As a matter of ordinary English (see Shorter Oxford English Dictionary (3rd ed., 1980) under "vicinity"), the phrase "in the vicinity (of)" means "in the neighbourhood (of), near or close (to)". It does not mean "at", "on" or "within". A reasonable reader would certainly not necessarily conclude that the advertisement embraced areas actually on Hindmarsh Island - still less that it referred (inter alia) to the whole of the island and its adjacent waters. As the compliance of the advertisement, which appeared in the Commonwealth Government Gazette of 26 May 1994 and the Adelaide Advertiser two days later, with the requirements of the statute is one of the issues in the appeals, I set out the version contained in the Gazette:

"ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984

SECTION 10(4) REPORT:

Significant Aboriginal Areas in the Vicinity of

Goolwa and Hindmarsh (Kumarangk) Island, South Australia

I, Professor Cheryl Saunders, hereby give notice that:

(1)the Minister for Aboriginal and Torres Strait Islander Affairs, the Honourable Robert Edward Tickner, (the Minister) has received an application made under section 10 of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (the Act) on behalf of Aboriginals seeking the preservation and protection from further injury or desecration of significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia; and

(2)the Minister is considering whether to make a declaration under section 10 of the Act; and

(3)the Minister has nominated me to prepare a report under section 10(4) of the Act in relation to the areas.

The report will deal with:

(a)the particular significance of the areas to Aboriginals;

(b)the nature and extent of the threat of injury to, or desecration, of the areas;

(c)the extent of the areas that should be protected;

(d)the prohibition and restriction to be made in respect of the areas;

(e)the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f)the duration of any declaration;

(g)the extent to which the areas are or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

Interested persons are invited to make representations on any or all of the above matters to:

Professor Cheryl Saunders
             Faculty of Law
             University of Melbourne
             PARKVILLE VIC 3052

Representations should be made by 11 June 1994, but an earlier indication of interest would be appreciated.

Any representations to me will be attached to the report.

Information about the application can be obtained from the following offices of the Aboriginal and Torres Strait Islander Commission:

Adelaide (08) 233 6700
Canberra (06) 289 3349

Professor Cheryl Saunders
26 May 1994"

At this point, it is also convenient to set out the text of ss. 9, 10 and 11 of the Act which, as the Judge noted (supra, at 320), are contained in a division headed "Protection of significant Aboriginal areas and objects", and should be read in the light of the purposes of the Act disclosed in s. 4. So I set out s. 4 first.

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

. . .

(1) Where the Minister:

(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and
(b)is satisfied:
(i)that the area is a significant Aboriginal area; and
(ii)that it is under serious and immediate threat of injury or desecration;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.

(3) The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.

10. (1) Where the Minister:

(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;
(b)is satisfied:
(i)that the area is a significant Aboriginal area; and
(ii)that it is under threat of injury or desecration;

(c)has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and
(d)has considered such other matters as he thinks relevant;
he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3)Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:
(a)publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:
(i)stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
(ii)inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and
(iii)specifying an address to which such representations may be furnished; and
(b)give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4)For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:
(a)the particular significance of the area to Aboriginals;
(b)the nature and extent of the threat of injury to, or desecration of, the area;
(c)the extent of the area that should be protected;
(d)the prohibitions and restrictions to be made with respect to the area;
(e)the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
(f)the duration of any declaration;
(g)the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
(h)such other matters (if any) as are prescribed. [None has been prescribed.]

11.A declaration under subsection 9(1) or 10(1) in relation to an area shall:
(a)describe the area with sufficient particulars to enable the area to be identified; and
(b)contain provisions for and in relation to the protection and preservation of the area from injury or desecration."

Since the question of the long delayed construction of the bridge had become an issue of some notoriety, and a large number of persons had very real interests at stake, Professor Saunders received over 400 representations, notwithstanding the shortness of the notice given. Hers was a most onerous task, for the Minister required the report before 10 July. The reason for such haste was the running out of the duration of the declaration made under s. 9, as extended. It will be seen that the terms of s. 9 do not permit a declaration under that section to be extended for more than a total period of 60 days. Unfortunately, nothing was done about the nomination of a reporter within any reasonable time after the receipt of the application of 23 December 1993. The view seems to have been taken that the matter could be left to the State Government, and that no report was at that stage required. But s. 10(4)(g) makes it clear that one of the purposes of a report is to ascertain the extent to which State protection is available. The assumption that nothing need be done seems to me to have been in conflict with the Minister's duty under the Act, as then quite recently declared in Tickner v Bropho (1993) 40 FCR 183. For if the application was a valid application (and plainly the Minister accepted it as such, since eventually he nominated Professor Saunders in pursuance of it), the Minister was obliged to treat it as requiring him to proceed with due expedition to perform the statutory task. The application itself requested, in my opinion quite properly, a reply at his "earliest convenience". In his judgment in Tickner v Bropho at 195, Black C.J. makes it clear that the obligation to obtain a report on a valid application is "a general obligation", not to be set aside in the interests of mere "administrative inconvenience". If steps had been taken to obtain a report at the proper time, the haste which the Minister later imposed on the processes would have been avoided. That haste was so great as almost necessarily to have impaired the proper consideration of the matter. It was quite inconsistent with the due performance of the purposes of the Act as discussed by Black C.J. in Tickner v Bropho at 194.

For the Minister, it was suggested that the short duration of a declaration under s. 9 indicates a legislative intention to authorize a hasty inquiry under s. 10. This view is not only inconsistent with the purposes of a s. 10 report as expounded in Tickner v Bropho; it is contrary to the whole scheme of the Act. The Act takes as its starting point that there are particularly significant Aboriginal areas and objects which it is in the national interest to preserve. Depending on the nature and extent of the particular significance, that interest may require the subordination both of other governmental interests and of private interests. These are grave issues, and it is not reasonable to suppose that Parliament intended a decision upon them to be tossed off at short notice. Rather, as Tickner v Bropho indicates, they were to be the subject of a full and careful report, made after there had been a true opportunity for participation by all those affected, and involving a personal and informed decision by the Minister. There is no reason at all to suppose that s. 9 was intended to be availed of, as a precursor to a s. 10 declaration, in other than a minority of urgent and special cases. For a matter such as the present, the course contemplated by the Act would have been the nomination of a reporter promptly after receipt of the application. One of the matters the reporter would (by s.10(4)(g)) have been required to deal with would have been the adequacy of the State procedures, and in the light of the report, the Minister could have chosen his course after full opportunity for consideration.

suggests that the process provided by the Act is of the nature of an enquiry and, consistently with that and the need for the maintenance of confidentiality, that information and comment by the wider community is to be upon a general subject.

There is no doubt that the purposes of preservation and protection of Aboriginal heritage are beneficial. It has been said that the Act is "clear in its purposes, broad in its application and powerful in the provision it makes for the achievement of its purposes": Black CJ. in Tickner v. Bropho190. But the purposes of the Act, pursuant to s.4, are not to apply restrictions and prohibitions upon request, nor is it intended that a declaration be made with respect to any area of some significance, but to those of "particular" significance. The question of its particular significance, amongst other matters which may influence the Minister, is to be addressed in the report and may be included in the representations received from the wider community. It was obviously considered by the legislature that information and views upon the need for protection on the one hand, and the effects it may have on the other, from a wider community perspective was necessary before the Minister made the final decision.

The process set up by s.10 is not that of an enquiry, which in any event may give rise to complex questions of procedural fairness. It provides for representations and a report on a nominated and specific topic. This is provided in the application itself which, in my view, reading the meanings given in s.3 with the phrases in s.10(1)(a), would require the identification of the tradition, the belief, custom or observance said to be associated with the land or waters. It would also identify those who held them or to
whom the maintenance of them was of importance, and it would require an explanation of how it is apprehended they would be impacted upon. The need for identification of the land or waters making up the area is clear enough. The sub-section requires it to be "specified" which at least requires that those receiving and commenting upon the application are able to understand what land and waters are spoken of, even if in some cases reference is made to large tracts of land or, as emerged here, whole islands and the waters between them.

The reporter, it may be seen from s.10(4)(a), (b), (c), (d) and (g), is to deal with matters concerning "the area", which is to say that already nominated. Whilst the reporter may advise the Minister, pursuant to s.10(4)(g), that only some part of it needs protection, the starting point is the area specified in the application. The process just described does not assist the submission made on behalf of the Minister that the reporter is to undertake a general investigation of what might be an area of significance. It was also submitted, on behalf of the Minister, that the reference in s.3(2)(a)(ii) to anything done "in, on or near the area ..." would permit an applicant to point to a wider area than that which was truly associated with the tradition, for instance a type of "buffer zone" around a sacred ceremonial site. This would support the argument for initial generality of description and of secrecy. It seems to me however that s.3(2) is simply providing for the circumstance where something might be taking place away from the area which needs to be protected, but it is having an impact within the area. An example might be blasting. In such a case, whilst the declaration would still specify the area subject to the tradition and to be protected, it might under s.11(6) limit or prohibit activity elsewhere.
The reporter is not prevented from making enquiries, although the Act does not provide for it. But the section does not predict that a reporter will be nominated until after an application containing the descriptions and explanations required by s.10(1)(a) is received. The reporter must then give notice to the public of what is the "purpose" of that application and what the report will be dealing with. Comment is thereby invited on the particular application and the matters referred to in s.10(4), and there would seem to be little point to doing so if the public were simply advised that a claim was made to protect lands in or about a widely described area which were said to be "of significance" to Aboriginal people generally.

The place the representations are given in the process, and the obligation on the Minister to consider them, show the importance given to them by the legislation. The intention of the Act, as Black CJ. in Tickner v. Bropho, 194 said, is that "interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application of s.10(1)" and that "the Minister shall make an informed decision on all questions, with input from interested persons". So stated, the two goals are similar to those of the notice provisions considered by Stephen J. (as he then was) in Scurr v. Brisbane City Council(1973) 133 CLR 242, 251-2, which, his Honour held, could only be attained by the provision of adequate information. It followed there (252) that the phrase "particulars of the application" in the statutory provision in question ought not be given a narrow meaning. Like reasoning should apply here with respect to what is said of "the purpose of the application".
Counsel for the Minister sought to distinguish the reasoning in Scurr because it was concerned with matters of town planning which necessarily require greater precision, particularly as to the description of the land the subject of an application. I accept that the specification of an area under the Commonwealth Heritage Act will not require the same degree of precision. It remains the case however that the objects of the section require sufficient information to permit an understanding of what the application concerns and to enable facts to be put forward and views expressed upon it and the making of any declaration. The wider community could not in my view be regarded as informed of the topic for their comment without a description of the land or waters and the tradition, the very matter sought to be protected by the declaration. As to the identification of the applicants, it seems to me that the explanation of the tradition will connect it with a group of people and that is the essential information.

The other matter raised in support of a more limited, less detailed, disclosure to the public, the need for confidentiality, is not addressed in the Act save for the provision as to Court proceedings, s.27, to which I have earlier referred. The declaration itself must specify the area to be protected which, if it is less than that applied for, will serve not only to identify, but to focus upon that part of it which is of greater importance, as may the provisions for protection contained in the declaration. The notice calling for public comment which preceded any such declaration would be illusory if it did not advise what the applicants sought and why. The importance, within Aboriginal society or groups, of the retention of secret knowledge only by those in whom it is intended to reside is well known and has been for some time. One may accept that the Parliament
was aware of it. But one must also accept, as provisions in the Act make clear, that it was also conscious of the effects upon the interests of others a declaration may have. In the result it has chosen to extend protection to those areas which are nominated, for which a reason is ascribed and which may be made known to the public for comment.

The reference in the notices here published to "areas" in the vicinity of Goolwa and Hindmarsh ("Kumarangk") Island was about as wide as could be, but it did not serve as a sufficient, nor even accurate, identification of the area if, as the Instrument of Appointment stated, the application under consideration was that of 23 December 1993. That letter referred to "the two major camp site areas adjacent to the bridge approaches and the sites on Hindmarsh Island as a whole", and whilst the bridge approaches were no doubt well known to many and able to be described in greater detail, those on the island were not. Further, no description of the tradition in question, which would suffer injury or desecration was adverted to. The Minister might have regarded the letters which followed as providing further information with respect to the earlier, incomplete, application or as a fresh application. The terms of the letter of 7 April 1994 suggest that the ALRM was applying for both s.9 and s.10 declarations on the basis of what was set out in it. By 20 April 1994 the areas in question, on each side of the Goolwa Channel and including the Channel, had been identified and the cultural meaning and beliefs associated with them advised, although on a confidential basis. Perhaps that made it unclear to the Minister or his advisers whether they were intended to be acted upon. The other letter received prior to the appointment of Professor Saunders, that from the Ngarrindjeri women, was unclear as to the areas in question but at this point appeared to
refer, in a general way, to the same set of cultural meanings referred to in the letter of 20 April 1994. After Professor Saunders' meetings and the receipt of Dr. Fergie's report, however, differences were apparent, in the wider, spiritual or cosmological meaning which the women associated with the area. In a sense they thereby constituted a separate group, even though they were part of a wider group of peoples and their concerns included the effect the bridge would have on all Aboriginal peoples. It seems to me, subject to one qualification, that a further application for protection by declaration had been received. This is a situation which Lockhart J. in Tickner v. Bropho209 thought possible and I respectfully agree with his Honour's observation that it would be necessary to commence the process with respect to the later application afresh, although some efficiencies might be realised, for instance in the nomination of the same reporter. The qualification here arises from the Ngarrindjeri women's request for confidence. Whilst that may not prevent their submissions amounting to a representation, it renders unclear whether they wished the matter to be treated as an application, with attendant necessary public disclosures and an enquiry of them would be necessary.

It follows, in my view, that his Honour was right to hold that the notice was deficient and failed to satisfy the requirements of s.10(3)(a)(i). The defect could not, in my view, be cured by making some documents relevant to the various claims put forward for inspection, nor by the Chapmans and others having been advised, in a general way, that the women had themselves raised matters which affected the application. One could not know what further representations might have been received if the public had been properly advised of either of the bases put forward: see Scurr v. Brisbane City Council
247, 251-2, which is to say that the purpose to be served by the notice cannot be seen as fulfilled.

Whether the Minister "considered" the Representations
Both the reporter and the Minister are required by s.10 to consider the representations, although the reporter is required to give "due" consideration to them. The scheme of the Act is such that it is only after a consideration of both the report and the representations that the Minister may proceed to make a declaration. Matters contained in them may influence whether the Minister is satisfied as to the matters in s.10(1)(b) or whether they should be accepted by him as relevant matters when undertaking the balancing process of which Lockhart J. spoke in Tickner v. Bropho, 209. In either event, the consideration of the representations is expressed as a precondition to the making of any declaration: as Tickner v. Bropho194, 209 makes clear.

The importance of the decision not only to the Aboriginal applicants but to the public at large, the effect it has in relation to potential liability for breach of it and which it might have on third parties or public interests, is recognised in the requirement that the Minister, himself in this case, consider the representations. The obligation is clearly personal to the Minister. It is expressly made non-delegable: see s.31(1). It may be contrasted with legislation considered in the cases to which Mason J. referred in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24, 38 such as Carltona Ltd v. Commissioner of Works [1943] 2 All ER 560 and In Re Golden Chemical Products Ltd. [1976] Ch 300 where the nature scope and purpose of the
function to be undertaken by the Minister made it unlikely that it was to be undertaken by the Minister and where the statute did not prohibit the Minister exercising the power through the agency of others. That is not to say that the Minister here could not seek the assistance of his staff, but he must himself consider the report and representations. The question which then arises is what that process involves.

O'Loughlin J. held that it required a substantial personal involvement on the part of the Minister, a concentration upon the contents of the representations and in this respect referred to Walters v. Essex County Board of Education (1973) 38 DLR (3d) 693. The Minister had read the report of Professor Saunders and likely also the representation of the State Minister. It was not clear whether he had read the report of Dr Fergie and the various letters provided to him. The evidence disclosed that this was the extent of documents physically provided to him. It was not suggested that he had actually read the representations. There were over four hundred of them. They had only arrived on 8 July, the day before the Minister signed the declaration, and the Minister had a busy schedule. The emergency declarations would expire on 10 July 1994. A member of his staff had however gone through them and said in evidence that she had discussed the subject and contents of them with the Minister. His Honour found, however, that her description of the discussion was "vague and nebulous". With respect to the written submission from the Ngarrindjeri women, Professor Saunders provided a general, but not detailed, account of it in her report and provided an opinion upon it. The Minister did not read the contents of the envelope which was sealed and marked with the caution that the contents were not to be read by men. The process then undertaken was one whereby
the female staff member read the contents of it and advised the Minister that there was nothing in Professor Saunders' report which did not have a basis in the detailed representation. The issues raised by the Ngarrindjeri women were elevated to importance in Professor Saunders' report and they were, his Honour found, relied upon heavily by the Minister in the exercise of his power to make the declaration.

There were other matters which led his Honour to conclude that there was no concentration upon the contents of the representations as a whole. There was no reference to them at all in the first set of reasons provided by the Minister pursuant to s.13 of the ADJR Act 1977 nor had there been in the declaration itself, which merely recited the receipt and consideration of the report. Further, in his Honour's view, there was a misconception by the Minister's advisers about his responsibilities, which could be seen from the ministerial brief from ATSIC of 8 July 1994 which advised only that the "submissions" had to be "received and acknowledged", although it elsewhere appears in his Honour's Reasons that Professor Saunders had correctly drawn attention to the Minister's obligations. Counsel for the Minister submitted that his Honour failed to take into account that the Minister was overseas when the first set of reasons were prepared and that the evidence did not suggest that the Minister always followed the advices of ATSIC. In the former respect however the preparation of the reasons by the Minister's staff, which made no reference to the representations, would be consistent with his Honour's finding of misconception on the part of those advising the Minister. I do not in any event understand his Honour to suggest that, individually, these factors were conclusive as to what had taken place. They tended to confirm what otherwise appeared
to be an error in the process, which derived from a misunderstanding of what the Minister was required to do under this particular Act and which the Minister, by his Counsel, continues to contend for. Then it was submitted that his Honour overlooked what amounted to the evidence of the Minister directly upon the point. In a statement to the media after the making of the declaration, which was tendered without objection at the hearing before his Honour, the Minister said that his decision "was based" upon the report of Professor Saunders "and all the other representations that were made to me". The statement was made in the context of a denial by the Minister that he had read the Ngarrindjeri women's submission contained in the envelope. In its own terms it does not lead one to infer that the Minister necessarily turned his mind to each representation. His Honour was entitled to determine the question as to the extent of the Minister's involvement with the representations by reference to the more detailed account of events by the female staff member. In this respect his Honour did not accept, as this witness tended to imply, that there was any detailed discussion as to the contents of all of the representations. There was evidence to permit such a finding including that regarding the limited time available for the task and other work being done. Indeed the transcript permits doubt as to the extent to which that person had actually read the representations and in so far as his Honour rejected part of this witness' account, he did so after hearing and observing her give evidence. The transcript reveals a witness who answered simple questions at some length and was prone to qualify her answers. At an important point in cross-examination of her, she spoke of having ascertained whether the information contained in the representations was "adequately" reflected in Professor Saunders' report but shortly afterwards elevated it to having determined whether they were "accurately" so reflected. Whilst I do not think that in every case a Judge is advantaged by observations of a witness, by the immediacy of oral evidence and the impressions thereby created, in this case one could not underestimate the advantage which his Honour had with respect to this witness, an advantage which this Court does not have. The position of disadvantage of an appeal court in such a circumstance has been a subject of discussion on many occasions : see Devries v. Australian National Railways Commission (1993) 177 CLR 472, 479, and Abalos v. Australian Postal Commission(1988) 171 CLR 167, 178-9. In Abalos (178-9) McHugh J. pointed out that an acknowledgment of the position of the trial judge may mean that where a decision does not accord with the evidence of a particular witness, but no express finding has been made as to that witness's evidence, the trial judge may be taken to have rejected it. Here, in any event, whilst his Honour's findings may not have been directed in a personal way to the staff member, his description of the evidence given shows clearly enough doubts about its reliability in critical respects. It follows in my view that the findings must stand.

To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

The obligation upon the reporter is stated in different terms. It is to give "due" consideration, which suggests, it was submitted, that the Minister's task was less onerous. It is not clear to me that the reporter's task will necessarily be more burdensome, for "due" consideration may be seen as importing some flexibility so that what is an adequate consideration by the reporter might depend on the circumstances of a particular application. But whatever the reporter's task, whose role in any event is quite different from the Minister's, I cannot see that it can reduce the task of the Minister to anything less than what a consideration involves.

It was also submitted that given the time constraints imposed where a s.9 declaration has been made, but which s.9(2)-(3) only permit to remain in force for sixty days, it could not have been intended by the legislature that a full consideration of numerous representations could always be undertaken by the Minister personally and that it might then be seen as a function which could be undertaken through staff members. As I have said, I am not sure the evidence would in any event support a conclusion that the staff member did properly consider them. In the present case, it must be observed that the practical difficulties created by a shortage of time available to complete the task were largely brought about by the late appointment of a reporter. Accepting that the letter of 23 December did not provide sufficient detail to amount to an application under s.10(1), by 20 April or even earlier that month the Minister did have this information. The
appointment was not made until 23 May 1994 and then eleven days after the making of the declaration under s.9. The statute itself does not prevent the s.10 process being undertaken prior to an emergency declaration being made. Clearly it can be put in train as soon as a valid application is received. I am unable to conclude that the sections in question need be read in a background where time will usually be short.

It follows from the conclusion I have reached that, in my view, the Minister was obliged to have a full appreciation of the matters put forward as the representation of the Ngarrindjeri women, and it would seem to follow from a reading of Professor Saunders' and Dr Fergie's reports that the substance and detail of what was sought to be conveyed was contained in the envelopes. Counsel for the Minister submitted that, because of the restriction placed upon the persons who might read the material, Professor Saunders became subject to a duty not to impart the material to men. It is to be recalled however that Professor Saunders accepted the restriction only "so far as it lay within my power" and how any such obligation could be maintained or enforced in the face of statutory duties and in particular those affecting the Minister, was not the subject of detailed submissions. Although I do not consider what, if any, obligation of confidence arose is the relevant enquiry here, it seems to me in any event that a Court in equity could not be asked to prevent it being understood and appreciated by the person to whom it was, in reality, directed - the Minister. The broad principle upon which the jurisdiction to restrain it being imparted rests is that equity will not permit unfair or unconscientious advantage to be taken of information received in confidence: Seager v. Copydex Limited (1967) 84 RPC 349, 368; Smith, Kline & French Laboratories (Australia) Ltd & Ors v.
Secretary, Department of Community Services and Health & Anor (1990-91) 99 ALR 679, 691-2; rather than it arising from some expressed limitation of the purpose to which it may be put by the person giving the information: Smith, Kline (690-2). Here the information was provided to the reporter, Professor Saunders, so that she might take account of it and be influenced by it in her report to the Minister, as indeed she was. In turn it was no doubt hoped that the Minister's decision would be influenced. It was provided following a notice issued to the public which advised that all representations made would be attached to the report to the Minister who, it must have been realised, would be informed of the contents even if he did not actually read them. It may have been prudent to advise the group that material submitted to the reporter must be considered by the Minister and to give them the opportunity to decide whether that course of action should be followed, although the advices of Professor Saunders as to the limits of her power to retain their secrecy likely conveyed something of this to the group if the ALRM, who appear to have had some connection with them, had not already advised.

The real question which arises is whether the material submitted was a representation or formed part of one. If it did there can in my view be no doubt that the Minister must have a full appreciation of what was contained in it as part of his consideration. There is nothing which detracts from a conclusion that the material was a representation, submitted to the reporter for her consideration and for that of the Minister in arriving at a decision to make the declarations, although the group hoped that this could be achieved in some way without the Minister receiving the detailed contents of the submission.
I have earlier said that the Minister may seek the assistance of his staff. A "consideration" of the representations does not in my view require him to personally read each representation. But it may be as well for him to do so, for if his staff are to convey what is contained within them, they must do so in a way which provides a full account of what is in them. If they do not, the Minister will not have considered something he is obliged to, and in this respect the observations of Gibbs CJ. in Peko-Wallsend, 30 as to what results are apposite. It may vitiate his decision.

Conclusion
The failure of the Minister to consider the representations might have been remedied by remitting the matter to him for consideration of the representations and further decision. The failure to notify the public of the basis for the application put forward by the ALRM and the area it was concerned with cannot however be rectified save by re-commencement of the process from public notice onwards. The later submission by the Ngarrindjeri women which as I have said was tantamount to an application itself because of the different area and tradition relied upon, might also be the subject of a statutory process if that is the wish of that group having regard to the matters which they wish to retain as secret.

The problems which were here later encountered had their beginnings in a lack of understanding as to what was necessary to be included in a request for a declaration so as to constitute it an application. Sufficient had been provided by the ALRM to amount to one, but it no doubt appeared that further information would become available and the
further construction of the bridge was imminent. In those circumstances it was determined to refer generally to a broad area and await the receipt of further information. The later submission from the Ngarrindjeri women, of which the public had no meaningful notice, compounded the difficulties in the notice which ought to have advised of the application submitted by the ALRM for the Ngarrindjeri people. I do not consider in the circumstances that any course other than commencement of the statutory procedures afresh can suffice.

In my view the appeals should be dismissed with costs.

I certify that this and the preceding thirty two pages are a true copy of the reasons for judgment of the Honourable Justice Kiefel.

Associate

Date:7 December 1995

Appearances in SG 13 of 1995:
Counsel and Solicitors for

the appellants: Ms Layton QC with Mr Collett instructed by Aboriginal Legal Rights Movement

Counsel and Solicitors

for the first respondents: Mr Jackson QC with Mr Meyer instructed by Michell Sillar Lynch & Meyer

Counsel and Solicitors

for the second respondents: Mr Willheim with Mr Muecke instructed by Australian Government Solicitor

Appearances in SG14 of 1995:
Counsel and Solicitors for

the appellants: Ms Layton QC with Mr Collett instructed by Aboriginal Legal Rights Movement

Counsel and Solicitors for

the first respondents: Mr Kourakis instructed by von Doussas

Counsel and Solicitors for

the second respondents: Mr Willheim with Mr Muecke instructed by Australian Government Solicitor

Appearances in SG 15 of 1995:
Counsel and Solicitors for

the appellants: Mr Willheim with Mr Muecke instructed by Australian Government Solicitor

Counsel and Solicitors

for the first respondents: Mr Jackson QC with Mr Meyer instructed by Michell Sillar Lynch & Meyer

Counsel and Solicitors

for the second respondents: Ms Layton QC with Mr Collett instructed by Aboriginal Legal Rights Movement

Appearances in SG 16 of 1995
Counsel and Solicitors for

the appellants: Mr Willheim with Mr Muecke instructed by Australian Government Solicitor

Counsel and Solicitor for

the first respondent: Mr Kourakis instructed by von Doussas

Counsel and Solicitor for

the second respondents: Ms Layton QC with Mr Collett instructed by Aboriginal Legal Rights Movement

Date of Hearing: 8,9,10 May 1995

Place of Judgment: Adelaide

Date of Judgment: 7 December 1995

[1995] FCA 987

7 DECEMBER 1995