Tickner v Bropho

ROBERT TICKNER v. ROBERT BROPHO
Nos. WAG21-22 of 1993
FED No. 306
Number of pages - 60
Aboriginals - Administrative Law - Statutory Interpretation
(1993) 114 ALR 409
(1993) 40 FCR 183

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Black CJ(1), Lockhart(2) and French(3) JJ

CATCHWORDS

Aboriginals - significant Aboriginal areas - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - s.9 application for interim declaration - whether failure to grant was unreasonable given Minister could have obtained information indicating State protection had been withdrawn - whether Minister obliged to seek information - s.10 application for "permanent" declaration - statutory interpretation - implied obligation to consider whether area is significant aboriginal area and is under threat of destruction - implied obligation to seek report.

Administrative Law - judicial review - error of law - failure to take into account relevant considerations - whether failure to comply with preconditions for exercise of discretion - unreasonableness - whether duty to inquire

Statutory Interpretation - language, structure and purpose of Act - implied obligation - reference to extrinsic materials - beneficial legislation - Aboriginaal and Torres Strait Islander Heritage Protection Act 1984

Words and Phrases - "effective protection"

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ss. 3, 4, 9, 10

Administrative Decisions (Judicial Review) Act 1977 s.13, s.5(2)(g)

Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 s. 33

Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987

Interpretation Act 1984 (WA)

Heritage of Western Australia Act 1990 (WA) ss.38, 39

Aboriginal Heritage Act 1972 (WA) ss.5, 18

Bropho v. State of Western Australia (1990) 171 CLR 1

Birch v. Allen (1942) 65 CLR 621

The Commonwealth v. State of Tasmania (1983) 158 CLR 1

Wamba Wamba Local Aboriginal Land Council v. Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 86 ALR 161

Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Luu v. Renevier (1989) 91 ALR 39

Bropho v. State of Western Australia (1990) 21 ALD 730

State of Western Australia v. Bropho (1991) 5 WAR 75

Attorney-General v. Great Eastern Railway Company (1880) 5 App Cas 473

Chorlton v. Lings (1868) LR 4 CP 374

HEARING

PERTH, 18-19 March 1993

#DATE 30:4:1993

Counsel for the Appellant: Mr E. Willheim

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr G. McIntyre

Solicitors for the Respondent: Corser and Corser

ORDER

THE COURT ORDERS:

1. The appeals be dismissed.

2. The appellant pay the repondents costs.

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

JUDGE1

BLACK CJ The appellant, Robert Tickner ("the Minister"), is the Minister for Aboriginal and Torres Strait Islander Affairs. The respondent, Robert Bropho, applied to the Court for orders of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). He sought judicial review of a decision made by the Minister under s. 9(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Act") that an emergency declaration not be made in respect of an area in Perth known as the old Swan Brewery site. He claimed that the decision under s. 9(1) was made on 11 November 1992. Mr Bropho also sought judicial review of a decision by the Minister that a declaration not be made pursuant to s. 10(1) of the Act to provide for the preservation or protection of the area from injury or desecration. Mr Bropho claimed that this decision was made on 7 January 1993.

The two applications were heard together by Mr Justice Wilcox, who made orders in favour of Mr Bropho in each case. His Honour declared that the Minister's decision not to make a declaration pursuant to s. 9 of the Act, notified by letter dated 11 November 1992, was invalid and he ordered that the decision be set aside. The judge also ordered that Mr Bropho's application for a declaration pursuant to s. 9 of the Act be remitted to the Minister for consideration according to law. On the second application the judge declared that the Minister's decision to refuse to make a declaration pursuant to s. 10 of the Act, notified to Mr Bropho by letter dated 7 January 1993, was invalid. He ordered that the decision be set aside and that Mr Bropho's application for a declaration pursuant to s. 10 of the Act be remitted to the Minister for consideration and determination according to law.
These appeals, which were heard together, are from those declarations and orders.

The Facts:
4. The relevant facts can be stated shortly and in the following paragraphs I have reproduced much of what his Honour said about them in his reasons for judgment.

Mr Bropho, described in his affidavit in support of the application as an Aboriginal elder and spokesperson and as the spokesperson for a group of about 120 people known as "the Fringe Dwellers of the Swan Valley", has long had an interest in the use of the subject land, an area that lies between Kings Park and the Swan River and is bisected by Mounts Bay Road. Most of the land is generally known as the old Swan Brewery site, there being a building on the site that was once used to manufacture Swan beer. To Mr Bropho, however, the site is Goonininup, a place of particular significance by reason of its association in Aboriginal customary lore with the Dreaming Track of the Waugyl, the Rainbow Serpent.
I depart for a moment from this recital of his Honour's findings to note that in Mr Bropho's affidavit he swore that he was born on the Dreaming Track of the Waugyl and had never ceased to live on that Dreaming Track. He said that the Dreaming Track of the Waugyl is to be found in the Swan Valley and associated waterways. He said too that the Waugyl is of the greatest possible religious significance to the Aboriginal people of the Swan Valley and, indeed, to the Nyunga people of the south-west of Western Australia and that it is the focus of Aboriginal religious life and experience in the Swan Valley; it is the summation of the relationship of the Aboriginal people in the Swan Valley to their physical environment and to Aboriginal life.
The judge found that Mr Bropho had known Goonininup since his childhood, when he was taken there by his parents and instructed about its significance by the tribal elders and by his grandmother.
There have been proposals for the redevelopment of the Swan Brewery site for several years and Mr Bropho has taken a leading role in resisting them. In February 1989, he applied to the then federal Minister for Aboriginal Affairs, the Hon. Gerry Hand, for an emergency declaration under s. 9 of the Act and on 12 April 1989 Mr Hand made a declaration under that section. In that document Mr Hand recited his satisfaction that the area was a significant Aboriginal area and that it was under serious and immediate threat of injury or desecration. The declaration was stated to have effect for 30 days and it required "that no excavation, or ground disturbance, be undertaken at the area during the period of the declaration". On 21 June 1989 Mr Hand made a declaration under s. 10 of the Act. That declaration repeated the recitals of Mr Hand's satisfaction about the significance of the area and the threat of injury or desecration. It also recited that Mr Hand had received and considered a report under s. 10(4) of the Act and had considered all relevant matters. The declaration was expressed to be a permanent declaration and it prohibited, without Mr Hand's written permission, excavation on or other interference with the surface or any part of the land in the defined area. The area that was the subject of the s. 10 declaration was larger than that covered by the earlier declaration under s. 9.
Later in these reasons I examine the Act in some detail but it is convenient at this point to set out ss. 9 and 10. They are in the following terms:

"9. (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."

Less than a month after the declaration under s. 10 was made, Mr Hand wrote to Mr Bropho telling him that the Premier of Western Australia had given undertakings to the Prime Minister in connection with the future protection of the site and that he had decided to revoke his declaration.
Mr Bropho then attempted to persuade the Western Australian government not to permit the development of the site, which at some stage had become the property of the State. Mr Bropho's attempts involved at least three separate legal actions, one of which reached the High Court of Australia: see Bropho v State of Western Australia (1991) 171 CLR 1.
But, as the judge put it, Mr Bropho won some battles but ultimately not the war. The State government decided to permit the development of the site and on 18 June 1992 entered into a lease of the land, or of part of it, with Bluegate Nominees Pty Ltd, the second respondent to the proceedings before the primary judge but not a party to these appeals. The lease was for a term of 65 years and permitted the site to be used for offices, retail premises, a restaurant, a boutique hotel, residential uses, car parking and any other use that might be approved by the Heritage Council of Western Australia, a body established under s. 5 of the Heritage of Western Australia Act 1990 (WA). Following the grant of the lease, on 11 August 1992, the then Western Australian Minister for Heritage, the Hon. Jim McGinty, made an order under the Heritage of Western Australia Act suspending the operation of all relevant State planning and Aboriginal heritage legislation in relation to the site. The suspension was subject to a proviso requiring the written approval of the Heritage Council of Western Australia to the use of the site and to compliance with any condition on which approval was given.
Fearing that construction work would begin immediately, Mr Bropho made an application to the Federal Minister, Mr Tickner. He sought both a further emergency declaration pursuant to s. 9 of the Act and a new declaration under s. 10. The application was made orally, through Mr Santen of the Aboriginal and Torres Strait Islander Commission, and in a letter sent directly to the Minister on or about 18 August 1992. The letter was signed by Mr Bropho and twenty other persons.
On 24 August 1992 construction work began on the site but on 22 September 1992 the Legislative Council of the Parliament of Western Australia disallowed the order made by Mr McGinty suspending the operation of the State legislation. Section 17 of the Aboriginal Heritage Act 1972 (WA), which makes it an offence to, amongst other things, excavate an Aboriginal site unless acting with an authorisation under s. 16 of that Act or with the consent of the Minister under s. 18, was therefore revived in its potential operation as a protection of the site, the High Court having held in Bropho v. State of Western Australia that s. 17 applies to employees and agents of the Crown acting in the course of their duties, and that it is beyond the power of the Crown to authorise a servant or agent to conduct activities of the type proscribed.
In the meantime, Mr Bropho was pursuing his application to the Minister. He telephoned the Minister's office inquiring about the making of the application many times between 18 August and 15 October 1992, on which date he wrote a further letter asking for an immediate reply to his application for a declaration. On 11 November 1992, the Minister wrote a letter to Mr Bropho as follows:

"I refer to your letter of 15 October 1992 in which you sought a reply to the application for an emergency declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, in relation to the area occupied by the old Swan Brewery. I have been following closely the recent events surrounding the Western Australian Government's proposed re-development of the Brewery site.

As you are aware I am required to consult with Cabinet colleagues before deciding whether to grant a declaration. Following this consultation, I have declined the application on behalf of your clients. I would like to place on the record my disappointment with the manner in which this issue has been prolonged in Western Australia and the manner in which Aboriginal issues have been addressed.

I find it doubly distressing that this situation was allowed to develop to the stage it has, in a State where the reconciliation process has such a long way to go to bridge the gulf in understanding between Aboriginal and non-Aboriginal Australians."

On 7 January 1993 Mr Tickner sent a further letter to Mr Bropho dealing with the part of his application that concerned s. 10. The letter read:

"I refer to your application, sent to me by facsimile on 18 August 1992, for a declaration under S. 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, in relation to those areas for which you sought protection on or near the old Swan Brewery site. I have considered the significance of the area to Aboriginal people and the threat of injury or desecration which may occur as a result of the development proposal. However I do not believe that Commonwealth intervention in the form of a declaration under S. 10 would be the best way to resolve the situation to the satisfaction of the competing interests which are involved in this contentious area. Accordingly, I have declined your application."

Mr Bropho then sought reasons pursuant to s. 13 of the ADJR Act for the Minister's decision to refuse his s. 9 application but he did not seek reasons pursuant to s. 13 for the Minister's decision to refuse the s. 10 application. The reasons for the s. 9 decision were supplied on 12 January 1993. In his statement in response to the request under s. 13 of the ADJR Act, the Minister listed the materials he had taken into account, including the following:

"4. Disallowance by the Western Australian Legislative Council on 22 September 1992, of the Order made pursuant to S. 38 of the Heritage of Western Australia Act 1990.

5. The consequential need for the Western Australian Government to comply with the requirements of the Aboriginal Heritage Act 1972 (WA) before any development in the area could proceed."

The Minister stated his reasons for decision as follows:

"Following the disallowance of the order made under the Heritage of Western Australia Act 1990 with the consequence that the Western Australian Government was required to comply with the procedures set out under the Aboriginal Heritage Act 1972 (WA), and particularly in view of the requirement that the Western Australian Minister for Aboriginal Affairs refer the development proposal for the area to the Aboriginal Cultural Material Committee, I concluded that there was no serious and immediate threat of injury or desecration."

In the meantime, construction work on the site had recommenced. As she was legally entitled to do pursuant to s. 18 of the Aboriginal Heritage Act, the Western Australian Minister decided to permit the development to proceed. Sub-section (3) of s. 18 gives the Minister a very wide discretion, going beyond consideration of the impact of a particular development on Aboriginal interests. The sub-section reads:

"(3) Where the Trustees submit a notice to the Minister under subsection (2) of this section he shall consider their recommendation and having regard to the general interest of the community shall either -

(a) consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or

(b) wholly decline to consent to the use of the land the subject of the notice for the purpose required,

and shall forthwith inform the owner in writing of his decision."

The Western Australian Minister's s. 18 approval was issued on 22 October. Construction work recommenced on about 12 November 1992.
His Honour found that having regard to the careful formulation in s. 3(2) of the Act of the concepts of injury and desecration it was impossible rationally to conclude that the development would not injure or desecrate the subject land, considering that land as a significant Aboriginal area. He concluded that the use of the land for a development costing $40 million and containing retail shops, an hotel, offices, a multi-level car park and other facilities was incontestably inconsistent with its use in accordance with Aboriginal tradition. Although the use made of that conclusion by his Honour was challenged by counsel for the Minister on this appeal, the conclusion itself was not challenged.

The Minister's decision under section 10:
22. I have set out earlier the text of the letter Mr Tickner sent to Mr Bropho on 7 January 1993 dealing with Mr Bropho's application for a declaration under s. 10. That letter contains the only explanation of the decision not to make a declaration under s. 10. Although the Minister's letter was very short and no request was made to him pursuant to s. 13 of the ADJR Act to furnish a statement giving the reasons for his decision, I think it clear that the letter was intended to state the essential reasons for the decision not to make a declaration under s. 10 and that it was appropriate for the judge to interpret the letter to ascertain what the reasons were. The letter does more than merely refer to the application and state that it has been declined. The first paragraph identifies the application, the second paragraph states what the Minister has considered and concludes with a sentence about the Minister's belief concerning the desirability of Commonwealth intervention and the third paragraph is simply: "Accordingly, I have declined your application". The use of the word "accordingly" at the beginning of the third paragraph makes it plain that the second paragraph was intended to reveal the Minister's essential reasons for his decision. The second paragraph is nevertheless not easy to interpret.

Partly because of his unwillingness to attribute to the Minister an absurd opinion, the judge read the letter as not indicating a conclusion that there was no threat of injury or desecration. Noting the Minister's reference to a "threat of injury or desecration which may occur as a result of the development proposal" and that the word "may" is antithetical to an assertion that there is a presently discernible threat, the judge read the letter as one that deliberately avoided the expression of any conclusion about the threat. He concluded that the Minister meant to convey a view, in effect, that it did not matter whether or not there was a threat of injury or desecration for the reason that a s. 10 declaration would not "be the best way to resolve the situation to the satisfaction of the competing interests".
The judge held that if this was a proper interpretation of the letter it involved an error of law because, whilst s. 10(1) did not expressly impose duties on the Minister and in form simply set out a series of conditions precedent to the Minister making a declaration, it could not be supposed, having regard to the purpose of the Act, that the Parliament intended that the Minister could decline to address the critical threshold matters specified in s. 10(1)(b) and in effect to ignore the application. The judge considered there was a third possible interpretation, namely that the letter indicated a determination that the area was under threat of injury or desecration but that the Minister had decided on discretionary grounds against intervention. He concluded, however, that if this interpretation was correct it made no difference to the result because it would be unreasonable to attribute to the Parliament the intention to allow the Minister to refuse to make a declaration upon an application properly made, and relating to an area that is of Aboriginal significance and under threat of injury or desecration, without obtaining and considering a report under s. 10(4). On either interpretation, the decision notified in the letter of 7 January was, his Honour concluded, invalid.
On the appeal, counsel for the Minister submitted that the correct interpretation of the letter was that in the exercise of his discretion under the Act the Minister had decided not to make a declaration because he did not believe that Commonwealth intervention in the form of declaration under s. 10 would be the best way to resolve the situation to the satisfaction of the competing interests. He contended that the letter did not say, and did not imply, that it did not matter whether or not there was a threat of injury or desecration, but in any case, he contended, an application for a s. 10 declaration may be refused without first making a conclusive determination of the matters referred to in s. 10(1)(b) of the Act and without first obtaining a report.
Section 10 is not expressed in the form of obligation and counsel for the Minister submitted that there was no point in requiring the resolution of complex issues for the purpose of making a determination on the matters referred to in s. 10(1)(b) in a case in which, for example, it was the Minister's view that because of an overwhelming national interest a declaration must be refused. For similar reasons, it could not be supposed that a report must always be obtained. As well as possible cases in which the Minister might decide that because of overwhelming policy considerations the application must be refused, counsel drew attention to the administrative inconvenience and expense that would be involved in obtaining a report where an application had been made frivolously or where, following the refusal of an application, another application was made in respect of substantially the same area.
I do not consider that there should in the circumstances be attributed to the Minister any indifference to a threat of injury or desecration to the area, particularly in view of his satisfaction, expressed in his s. 13 statement in relation to the related application under s. 9 of the Act, that the area was, or included, a "significant Aboriginal area" within the meaning of the Act. I agree with the conclusion of the primary judge, that the letter deliberately avoided expressing any conclusion on the question of the threat of injury or desecration and I conclude that it did so because the decision was made, as the letter revealed, on the discretionary ground that a s. 10 declaration would not be the best way to resolve the situation. This involved the Minister putting the question of threat of injury or desecration to one side and not addressing the question whether he was satisfied that there was a threat of injury or desecration.
It is, of course, perfectly true that s. 10(1) is structured in such a way that the matters in paragraphs (a) to (d) are each preconditions to the making of a declaration in relation to an area and that the Act does not, in express terms, require those matters to be considered unless a declaration is to be made. Does, however, a consideration of the purposes of the Act reveal an intention that those matters must be considered in any case in which a valid application has been made?
The Act is clear in its purposes, broad in its application and powerful in the provision it makes for the achievement of its purposes.
The long title of the Act is: "An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes." The purposes of the Act are spelt out in s. 4. They are:

"...the preservation and protection from injury 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."

Expressions of central importance in the Act such as "Aboriginal tradition", and "significant Aboriginal area" are broadly defined and there is, in s. 3(2), an extended definition of injury or desecration. By s. 5 the Act extends to every external Territory and by s. 6 it binds the Crown in the right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island. The Act has a very wide area of application; by s. 8(1) it applies according to its tenor to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters. "Australian waters" are broadly defined in s. 3(1).
Moreover, it is an indictable offence to contravene a provision of a declaration made under Part II in relation to a significant Aboriginal area and substantial penalties, including imprisonment for up to five years, are provided. Lesser, but still substantial, penalties are provided for contraventions of a provision of a declaration in relation to a significant Aboriginal object: see ss. 22 and 23. Wide power is conferred on this Court to grant, on the application of the Minister, an injunction restraining conduct that constitutes or would constitute a contravention of a provision of a declaration made under Part II or IIA and to restrain related conduct: see s. 26.
Provision is made for the grant of legal or financial assistance to various classes of person, including a person who wishes to apply for a declaration under ss. 9, 10 or 12.
As well as providing for declarations by the Minister, Part II of the Act also provides for emergency declarations by authorised officers in certain circumstances: s. 18. An emergency declaration of this nature may not be for a period exceeding 48 hours and may be revoked by the Minister, but contravention of a provision of a s. 18 declaration is a serious criminal offence and s. 18 serves to underline the determination of the Parliament to provide an effective regime of protection.
It is clear, having regard to the purposes of the Act, that although the Minister is not bound to accede to an application for a declaration, he cannot simply ignore such an application and fail to consider it at all. It would frustrate the whole object of the Act if the Minister were not under an obligation to give some consideration to an application that satisfies the requirements of s. 10(1)(a). The question then is to what extent the Minister must consider the application and whether the Act obliges him, as part of the process of dealing with the application, to consider whether the subject area is a significant aboriginal area and whether it is under threat of injury or desecration.
It would be surprising if an Act that has as its stated purpose the preservation from injury of areas that are of particular significance to Aboriginals did not require the Minister to consider, on receipt of a valid application for a declaration, whether the subject of the application was in fact a significant Aboriginal area. In my view, to interpret the Act in such a way as to impose no such requirement would frustrate its purpose and an interpretation that has such an effect should be rejected. The purpose of preservation could hardly be advanced if there were no requirement even to consider whether an area had the characteristics that it is an expressed purpose of the Act to preserve and protect. In contrast, an interpretation that requires the Minister's consideration to include a consideration of whether the subject area is a significant Aboriginal area and is under threat of injury or desecration would further the purposes of the Act and for that reason is to be preferred.
As I have noted, it was suggested in argument that there might be cases in which there would be no point in resolving the issues raised by s. 10(1)(b), issues that might be complex and difficult to resolve, for the reason that the Minister might validly take the view that because of an overwhelming national interest or because of financial considerations a declaration must in any event be refused. This argument should be rejected because it too fails to accord with the purposes of the Act. The history of the settlement of Australia by people who were not Aboriginals reveals countless instances in which the significance of areas and objects of profound cultural and spiritual significance to Aboriginals was simply not appreciated. Even when there was some appreciation of the significance of such areas and objects it was considered that the interests of the settlers should prevail, without any proper or informed consideration of the interests of Aboriginals.
I cannot accept that an Act described in the then Minister's second reading speech (H of R Deb. 9.5.84 p 2133) as beneficial legislation, remedying social disadvantage of Aboriginals and Islanders, and of having the effect, by preserving and protecting an ancient culture from destructive processes and of enriching the heritage of all Australians, could have been intended to allow for the rejection of applications for protection without proper consideration being given to the significance of the area sought to be protected. To conclude that the Act contemplates cases in which the national interest is so overwhelming that no protective declaration should be made irrespective of any consideration of the particular significance of the area sought to be protected would be to ignore the purposes of the Act and to assume, wrongly, that the Act reflects the prevailing attitudes of earlier times.
Although it is clear that the Minister may refuse to make a declaration in the exercise of the discretion the Act confers upon him, and that the exercise of that discretion may well involve the consideration of competing interests, the proper exercise of the discretion requires, in my view, that the Minister consider the matters to which s. 10(1)(b) directs attention. It may be that considerations that lead a Minister to conclude in a particular case that no declaration should be made will properly be described as matters of the national interest, but it should not be forgotten that the purpose of the Act reflects the Parliament's identification of another element of the national interest. The Act does not, in my view, allow for an assumption that one aspect of the national interest may prevail without any consideration of the element of the national interest that the Act reflects.
The final question is whether, when a valid application has been made to him, the Minister must also receive and consider a report under s. 10(4) in relation to the area it is sought to protect, and any representations attached to the report. It is common ground that the Minister did not receive a report under s. 10(4) in relation to the application and the answer to this question would therefore be decisive of the appeal concerning to the s. 10 decision if, as the judge thought possible, the Minister's letter of 7 January 1993 revealed that he had in fact determined that the area was under threat of injury or desecration but had decided on discretionary grounds against making a declaration.
Section 10(1) does not in express terms make the receipt of a report obligatory except as a precondition to the exercise of the power to make a declaration. If a similar provision were contained in town planning or local government legislation providing for the granting of permission to use land or for the grant of a licence it might well be that the form of the provision would lead to the conclusion that a report was not required if the decision-maker decided, as a threshold matter, that the power was not appropriate for exercise in the particular case. But the purpose of the present Act is quite different; its purpose is preservation and protection.
One of the purposes of the scheme established by ss. 10(1)(c), 10(3) and 10(4) with respect to the provision of a report to the Minister is to provide the Minister with information about the particular significance of the subject area to Aboriginals and about the nature and extent of the threat of injury to the area. He is thus to be provided with fact and opinion about the matters that, for the reasons I have given, he is obliged to consider by reason of s. 10(1)(b) when he has received a valid application for a declaration. A report is also required to deal with other matters that would be relevant to consider before deciding to make a declaration and that would, obviously, also be relevant to any decision not to make a declaration.
Moreover, the process of reporting to the Minister involves the prior notification to the public of the purpose of the application under s. 10(1) and an invitation to interested persons to furnish representations in connection with the report: s. 10(3). Before submitting a report to the Minister, the maker of the report must give due consideration to any representations furnished to him or her and must attach them to the report: s. 10(3). The Minister must himself consider the representations attached to the report as a precondition to the making of any declaration. It is thus the intention of the Act 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 under s. 10(1). There is nothing to suggest that the class of "interested persons" from whom representations are to be invited is confined to those who would oppose the making of a declaration, although it would obviously include those who have an interest that would be adversely affected by a declaration. The use of the expression "interested persons" in s. 10(3)(a)(ii) may be contrasted with the expression "persons likely to be substantially affected' in s. 14(2)(a). Having obtained a report and considered it, and the representations attached to it, the Minister may in the exercise of his discretion decide not to make a declaration, or he may decide not to make a declaration because, having considered the report and the representations, he is not satisfied that both or either of the preconditions in s. 10(1)(b) exist. But the intention of the Act is that the Minister shall make an informed decision on all such questions, with input from interested persons.
If, as I have concluded, the Act requires the Minister to consider whether an area that is the subject of a valid application is a significant Aboriginal area and whether it is under threat of injury or desecration, I consider that it must also be concluded that there is, in all such cases, an obligation to obtain a report under s. 10(4) and to consider the report and any representations attached to it. The provisions of s. 10(1)(b) and s. 10(1)(c) are closely linked, in that the report referred to in s. 10(1)(c) inevitably bears directly upon the questions the Minister is required to address by virtue of s. 10(1)(b), as well as upon matters going to the exercise of his discretion. Also, the information to be provided to the Minister by the report and its attachments has an important quality by reason of the requirements of s. 10(3) for publication and the inviting of representations from interested persons. The report is part of the mechanism provided by the Act by which the Minister is to be informed in a particular way when considering an application for a declaration, including his consideration of the two critical matters referred to in s. 10(1)(b). The obligation to consider those matters therefore carries with it an obligation to activate the mechanism provided by the Act for informing the Minister about those and other relevant matters and to consider, as part of the treatment of a valid application, the report and any attached representation.

I do not consider that the administrative inconvenience that the existence of a general obligation of this nature might possibly cause provides a sound reason for concluding that it was not intended that there should be such an obligation. It may be accepted that it would be inconvenient and wasteful if a report were required when an application turned out to be frivolous or was no more than a repetition, on precisely the same grounds, of an application that had been rejected a short time earlier. But there is no reason to assume that, if this were to occur at all, it would occur with such frequency and to present a problem of such magnitude that the Parliament could not have intended that there should be a general obligation to obtain a report.
It follows that on either possible view of the Minister's reasons for his decision to refuse to make a declaration under s. 10 of the Act a ground of review was made out. If the Minister did not address the question of the threat of injury or desecration his decision involved an error of law in that he did not do what the Act required him to do. He also failed to take into account a relevant consideration that he was bound to take into account. In any event, by making the decision without having obtained and considered a report, he erred in law and the procedures required by the Act were not observed. I would therefore dismiss the appeal in the proceeding that challenged the Minister's decision under s. 10.

The Minister's decision under section 9:
47. The primary judge concluded that the Minister had fallen into legal error in his consideration of the application for an emergency declaration under s. 9(1) of the Act in that he had failed to evaluate for himself the question whether the area was subject to a serious and immediate threat of injury or desecration and had, in effect, left the matter in the hands of the relevant Western Australian Minister for determination under the Aboriginal Heritage Act. His Honour also concluded that if Mr Tickner had decided that the Aboriginal Heritage Act offered "effective protection of the area" he had erred in law.

It was argued on behalf of Mr Bropho before the primary judge that the Minister's decision to refuse to make a declaration under s. 9 was so unreasonable that the ground provided for by s. 5(2)(g) of the ADJR Act was made out. Although recognising that it was not strictly necessary to consider that issue having regard to the conclusion he had already reached in relation to s. 9, the judge found that by the time the Minister had made his decision in relation to the s. 9 application, the Western Australian Minister had already consented to the development proceeding under s. 18 of the Aboriginal Heritage Act and he concluded that it was irrational to rely upon the Western Australian Act to ensure the protection and preservation of the site, because plainly it would not do so.
Counsel for the Minister argued before us that the judge was in error in concluding that the Minister had remitted the question of the threat of injury to someone else and that the judge was also in error in concluding that the Minister's decision was unreasonable in the sense used in s. 5(2)(g) of the ADJR Act. His argument was that the issue before the Minister on the application s. 9(1) was whether the area was under serious and immediate threat of injury or desecration and that the Minister's statement pursuant to s. 13 of the ADJR Act showed that he had directed his mind to that very issue and had correctly concluded that following the disallowance of the order made under the Heritage of Western Australia Act, and the consequent requirement for the Western Australian government to comply with the procedures under the Aboriginal Heritage Act, there was no serious and immediate threat of injury or desecration. He argued that the judge had based his conclusion on an assessment of subsequent developments, including subsequent action by the Western Australian Minister and subsequent activities on the site and that there was no evidence that any information about these subsequent developments was before the Minister at the time he made his decision.
In my view these submissions are correct although, for reasons I shall explain shortly, they do not resolve the appeal in favour of the Minister.
The Minister's letter to Mr Bropho of 11 November 1992, made no reference to any protection being afforded to the site by Western Australian legislation. The only reason for the refusal of the declaration given in the Minister's letter was in the third paragraph, in which the Minister referred to the requirement to consult with his Cabinet colleagues and in which he said that following that consultation he should decline the application. The s. 13 statement, however, which was put in evidence by counsel for Mr Bropho, stated the Minister's position very precisely. An emergency declaration cannot be made under s. 9 unless the Minister is satisfied that, amongst other things, the area is under serious and immediate threat of injury or desecration. It was open to the Minister to conclude, as he did, that while s. 17 of the Aboriginal Heritage Act applied to the site and the procedures for obtaining the Western Australian Minister's consent under s. 17 were still in train, the site was not under immediate threat of injury or desecration.
As I have noted, the judge found that by the time the Minister made his decision under s. 9, the Western Australian Minister had already consented under s. 18 of the Aboriginal Heritage Act to the development proceeding. It was open to the judge to so find having regard particularly to the urgency with Mr Bropho obviously regarded the matter, the Minister's own concern about the situation as revealed by his letter of 11 November 1992 and the Minister's obligation under s. 16 of the Act to take reasonable steps to notify an applicant of his decision where he refuses to make a declaration under Division I of Part II, a division that includes ss. 9 and 10.
At the time the Minister made his decision, therefore, the ground for it, as revealed by his statement pursuant to s. 13 of the ADJR Act, was unsustainable as a matter of objective fact because, permission having been given pursuant to s. 18 of the Aboriginal Heritage Act to proceed with the development, it could not be concluded, consistently with the findings made by the judge, that there was no serious and immediate threat of injury or desecration. The very foundation for the Minister's decision not to exercise his discretion under s. 9 to make an emergency declaration had in fact been removed.
Having regard to the terms of the Minister's s. 13 statement it certainly should not be concluded that the Minister knew that consent had been given for the development to proceed at the time he made his decision under s. 9. The conclusion that must be drawn, however, is that the Minister and the officers of his Department failed, between 22 October 1992 (when the s. 18 approval was given by the Western Australian Minister) and the time when the Minister made his decision, to make any inquiry of the Western Australian Minister about the progress of the procedures under the Aboriginal Heritage Act.
It was argued on behalf of Mr Bropho on the hearing of the appeal that in these circumstances, even if the Minister's decision was otherwise unaffected by error, the exercise of the power was so unreasonable as to make out the ground provided for by s. 5(1)(e) of the ADJR Act, as construed by reference to s. 5(2)(g), because the Minister had failed to obtain information, readily available to him, that was of critical importance to his decision.
The information that the Western Australian Minister had consented to the development could no doubt have been readily obtained by Mr Tickner or by officers of his Department at any time after the Western Australian Minister made her decision on 22 October. It cannot be imagined, and it was not suggested, that the Western Australian Minister would have kept her decision secret from Mr Tickner had he, or his departmental officers, inquired about the matter. This, it was argued, was critical information, readily available to the Minister.
In support of the submission that the Minister acted unreasonably, observations made by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 were relied upon. In that case a question arose during the hearing of an application for judicial review under the ADJR Act about the relevance to the issue of reasonableness of certain material that was not before the decision-maker, actually or constructively. Wilcox J expressed the tentative view that a decision is an improper exercise of a power if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example, by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. His Honour said (at 169-170):

"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the courts find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision being made, it seems to me to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information."

The observations of Wilcox J in Prasad were considered by a Full Court of this Court in Luu v Renevier (1989) 91 ALR 39. The Court (Davies, Wilcox, and Pincus JJ) noted that the underlying rationale of the approach suggested in Prasad was that the ground of unreasonableness in the context of the ADJR Act may be related to the manner in which power is exercised. The Court observed (at 50) that unreasonableness, like each of the other grounds stated in s. 5(2) of the ADJR Act, is an example of the ground of review set out in s. 5(1)(e), namely that the making of the decision was an improper exercise of the power. Their Honours concluded (at 50):

"One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained."

The Full Court then applied that reasoning to determine the appeal before them; it is also applicable in this case. See also: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 176, per Toohey J; Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 373, per Lee J; GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 337, per Burchett J.
The history of the proposal to develop the old Swan Brewery site was evidently known to the Minister who, in his letter of 11 November 1992 to Mr Bropho, said that he had been:

"...following closely the recent events surrounding the Western Australian Government's proposed re-development of the Brewery site."

On the evidence before the primary judge there was nothing in the recent events surrounding the Western Australian Government's proposed re-development of the site that suggested that the issue would go away and nothing in the Minister's letter to Mr Bropho to suggest that he thought it would. On the contrary, the Minister used the letter to place on record his "disappointment with the manner in which (the) issue has been prolonged in Western Australia and the manner in which Aboriginal issues have been addressed."
The basis of the Minister's decision was that he was not satisfied that the area was under serious or immediate threat. But it must have been obvious that the processes under the Western Australian Act would not last indefinitely, particularly as construction work had begun on the site and had been brought to a stop consequent upon the Legislative Council's disallowance of Mr McGinty's order, and that if consent were given under the Aboriginal Heritage Act the threat would become immediate and the foundation for the Minister's decision removed. The Minister had followed closely recent events surrounding the Western Australian Government's proposal to re-develop the site and when he made his decision in ignorance of what had actually occurred, it nevertheless must have been apparent to him that there was a serious prospect that the state of affairs he believed to exist on the basis, obviously, of information as to the position before 22 October, might suddenly change. The prospect was that the situation would change from one of protection under Western Australian law so that there was no immediate threat, to one in which there was no protection and an immediate threat.
It should be inferred that up to date information about a matter that went directly to the fundamental basis for the Minister's decision was readily available to him for the asking. Given the crucial importance of that information and the serious prospect of a fundamental change in the situation with regard to the protection of the site under State law, the making of the decision to refuse the s. 9 application without obtaining up to date information was, I conclude, an improper exercise of the Minister's power. It was improper because the making of the decision involved an exercise of the power that was unreasonable in the sense used in s. 5(2)(g) of the ADJR Act.
It follows that although my reasons differ from those of the learned primary judge I would dismiss the appeal in the proceedings challenging the Minister's decision under s. 9.
I should note that in unusual circumstances of urgency, the primary judge made an order requiring the Minister to reconsider his decision within a limited time. That time was later extended. By the time this appeal came on for hearing, although only some weeks after the orders by the primary judge were made, the Minister had, within the extended time, reconsidered the matter and made a fresh decision. That decision was not before us. A question therefore arose whether the Court should hear the appeal in the proceeding concerning s. 9. The Minister desired to proceed with the appeal and the respondent did not oppose that course. The appeal raised important questions about the validity of the original decision, the Minister of course maintaining his contention that the original decision was valid. As well, the question of the costs of the proceedings before the primary judge remained as a live issue, the primary judge having ordered the Minister to pay Mr Bropho's costs on the ordinary basis. In these circumstances it is appropriate that the Court should determine the appeal.
The Minister should pay Mr Bropho's costs of both appeals.

JUDGE2

LOCKHART J These two appeals, being heard together by consent, are part of what has become a curial saga concerning the fate of the old Swan Brewery site on the foreshores of the Swan River in Perth ("the land"). The land lies between Kings Park and the Swan River and is divided by Mounts Bay Road. It has an area of almost two hectares. Since the commencement of European settlement of Western Australia, the land has been used for many purposes including limestone quarrying, a shipyard, a government feeding depot for Aboriginal people, a flour mill and a brewery. Brewing operations on the site were discontinued in 1966, and the land was used for storage until the mid 1970s. The land then fell into disuse and in due course was revested in the Crown in right of the State of Western Australia.

By lease dated 18 June 1992 the Minister for Lands for the State of Western Australia granted a lease of the land to Bluegate Nominees Pty Limited ("Bluegate"), a subsidiary of Multiplex Constructions Pty Limited. Bluegate was a party to the proceeding at first instance, but is not a party to these appeals. The term of the lease is 65 years. The lease permits the land to be used for offices, retail premises, a restaurant, a boutique hotel, residential uses, carparking on one of the lots (covering a substantial area) and any other use that may be approved by the Heritage Council of Western Australia, a body established under s. 5 of the Heritage of Western Australia Act 1990 (WA).
This is the history of the land to most Australians; but to Aboriginal Australians the land has fundamentally different significance. For Aboriginals, the Dreamtime is the beginning of time and knowledge. This was the period when the ancestral supernatural beings, who were part creature or plant and part human and who behaved as human personalities with all the strengths and frailties associated with people, broke through the crust of what is perceived in Aboriginal religion as the flat surface of the earth in darkness. They moved across the surface changing the form of the land, creating mountains, rivers, trees, waterholes, plains and sandhills, and making all living things: people, animals, birds and plants. They made all the natural elements: water, air and fire. They also made all the celestial bodies: the sun, the moon and the stars. When their work of creation was completed, the ancestral beings sank back into the earth and returned to their state of sleep. Aboriginal dreamings are the ancestral beings, they continue to reside in the living generations of Aboriginal people. Their spirits are passed on to their descendants. Groups of people who share the same dreamings constitute what are called totemic corporations, sets of people bonded by a common link to the particular dreaming. Dreamings that function as signs of totemic corporations provide corporate and local identity to the Aboriginal people and furnish much of the spiritual foundation of traditional communal title to land. All male Aboriginals, after full tribal initiation, own a dreaming in the sense of an explanation of the world and its creation, and are the custodians of the stories and songs that are associated with the dreaming, and are passed down by their spirit ancestors. In return for this privilege, they bear a sacred responsibility to preserve and pass on the story to their own people.
One of the ancestral beings is the Waugyl: an immense winged serpent which, according to Aboriginal religion, lived on the high ground near the foot of Kings Park, embarked on a great mythic journey starting at the sources of the Swan River and followed a serpentine route to the sea. Its path rested at places where specific activities occurred. These places became imbued with particular significance and vested by the Waugyl with special potency or power which may be either beautiful or harmful depending on how the power is used. The Waugyl is of religious significance to the Aboriginal people of the Swan Valley and to the Nyungah people of the south-west of Western Australia. The old Swan Brewery site is of sacred significance to the Waugyl as the brewery was built on top of the dreaming track of the Waugyl. The site is known according to Aboriginal custom as Goonininup. Evidence was given by the respondent, Robert Bropho (an Aboriginal elder and spokesperson for the Fringe Dwellers of the Swan Valley, a group consisting of about 120 Aboriginal people). Mr Bropho gave evidence that:

"the Waugyl is the focus of Aboriginal religious life and experience in the Swan Valley and is the summation of the relationship of the Aboriginal people in the Swan Valley to their physical environment and to Aboriginal life. Without belief in the Waugyl, Aboriginal people are like an empty shell."

His evidence is that he was born on the dreaming track of the Waugyl and has never ceased to live on it. The dreaming track of the Waugyl is to be found in the Swan Valley and associated waterways. He says that he has known of the Waugyl and of the dreaming track from experience gained from the time of his birth, and from the teachings of his father and mother, and other older Aboriginal people, including his grandmother. The experience derived by him from the teaching "moves with one at all times. It is in the sun and the wind and the rain and the flow of the river".
Mr Bropho has been aware since 1988 of the intentions of the Government of the State of Western Australia to rebuild the derelict buildings on the old Swan Brewery site. There have been proposals for the redevelopment of the land for several years. Mr Bropho has taken a leading role in resisting them. It is unnecessary to recount all the steps taken by him. He seeks to have the Old Swan Brewery demolished and the land returned to parkland which may be used by all members of the community, white and black alike.
In February 1989 he applied to the then Federal Minister for Aboriginal Affairs, the Honourable Gerry Hand, for an emergency declaration under s. 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Act"). That section provides:

"9.(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 a 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."

On 12 April 1989 the Minister made a s. 9 declaration. In that document he recited that he was satisfied that the area is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration. The declaration was stated to have effect for 30 days. The Minister required:

"that no excavation, or ground disturbance, be undertaken at the area during the period of the declaration. The area the subject of the declaration described as Significant Aboriginal area located at Perth, Lot 985 being portion of Reserve 39880 in the State of Western Australia".

On 29 June 1989 the Minister made a declaration under s. 10 of the Act. That section provides:

"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."

The declaration of 21 June repeated recitals made in the s. 9 declaration that the Minister was satisfied about the significance of the area and the threat of injury or desecration. It also recited that the Minister had received and considered a report under s. 10(4) and had considered all other relevant matters. The operative part of the declaration reads:

"NOW, pursuant to sub-section 10(1) of the Act, I hereby make a permanent declaration in relation to the area specified in Schedule 2 of this declaration for the purposes of the Act having effect from the date of publication of this declaration in the Gazette, and further, for the purposes of the protection and preservation of the area from injury or desecration, I declare that during that period any digging of, excavation on or other interference with the surface or any other part of the land in the area is prohibited without my written permission."

The learned primary Judge from whose judgment this appeal is brought (Wilcox J) said in his reasons that the declaration of 21 June, although described in its own terms as "permanent", turned out to be remarkably short lived. The reason is to be found in the terms of s. 13(5) of the Act, which requires the revocation of a s. 10 declaration under certain circumstances. Sub-section (5) reads:

"(5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he shall revoke the declaration to the extent that it relates to the area, object or objects."

The Minister apparently became so satisfied. As the learned primary Judge pointed out, the material by virtue of which he reached a state of satisfaction was not before the Court. The validity of the Minister's conclusion is not an issue in these appeals. Only four weeks after making the "permanent" declaration, the Minister, on 19 July 1989, wrote a letter to Mr Bropho stating that the Premier of Western Australia had given some undertakings to the Prime Minister in connection with the protection of the site; and that accordingly he had decided to revoke the declaration, which he did.
Mr Bropho then attempted to persuade the Western Australian Government not to permit the development of the site. The Government had in the meantime become the owner of the site. As the primary Judge pointed out, Mr Bropho's attempts involved at least three separate legal actions, one of which went to the High Court of Australia: see Bropho v State of Western Australia (1991) 171 CLR 1. Wilcox J said "he won some battles but ultimately not the war". The Western Australian government decided to permit development of the site. On 18 June 1992 it entered into the lease with Bluegate to which reference has already been made. Following the grant of the lease, on 11 August 1982 the then Western Australian Minister for Heritage, the Honourable Jim McGinty, made an order under s. 38 of the Heritage of Western Australia Act 1990 suspending the operation of all relevant State planning and Aboriginal heritage legislation in relation to the site, thus allowing construction work to begin immediately.
Mr Bropho then made an application to the present Federal Minister for Aboriginal Affairs, the Honourable Robert Tickner, the first respondent to this proceeding. He sought both a further emergency declaration pursuant to s. 9 of the Act and a new permanent declaration under s. 10. The application was made both orally and in a letter sent directly to the Minister on or about 18 August 1992. The letter was signed by Mr Bropho and twenty other persons.
On about the same day as Mr Bropho made this lastmentioned application, a Senator for Western Australia in the Federal Parliament, Senator Christabell Chamarette, had a conversation with Mr Tickner in Parliament House, Canberra. According to her uncontested account she said to Mr Tickner:

"Why can't you intervene and protect the brewery site?"

Mr Tickner replied:

"I can't act without the approval of Cabinet."

Senator Chamarette said:

"Yes, you can. You're the Minister"

To which Mr Tickner replied:

"You get 100 per cent for law and zero for politics."

During the following week, on 24 August, construction work began on the site. On 22 September 1992 the Legislative Council of Western Australia disallowed the order made by Mr McGinty suspending the operation of the State legislation. The State authorities thereupon set upon the consultation process required under the Aboriginal Heritage Act 1972 (WA).
In the meantime Mr Bropho was pursuing his application to Mr Tickner. Between 18 August and 15 October 1992 he telephoned Mr Tickner's office at least thirty times enquiring about the making of a declaration. He obtained no satisfaction and wrote a further letter on 15 October 1992 asking for an immediate reply to his application for a declaration. Mr Tickner responded to this letter by letter dated 11 November 1992 which reads:

"I refer to your letter of 15 October 1992 in which you sought a reply to the application for an emergency declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, in relation to the area occupied by the old Swan Brewery.

I have been following closely the recent events surrounding the Western Australian Government's proposed re-development of the Brewery site. As you are aware I am required to consult with Cabinet colleagues before deciding whether to grant a declaration. Following this consultation, I have declined the application on behalf of your clients.

I would like to place on the record my disappointment with the manner in which this issue has been prolonged in Western Australia and the manner in which Aboriginal issues have been addressed.

I find it doubly distressing that this situation was allowed to develop to the stage it has, in a State where the reconciliation process has such a long way to go to bridge the gulf in understanding between Aboriginal and non-Aboriginal Australians."

On 7 January 1993 Mr Tickner sent a further letter to Mr Bropho dealing with the part of his application that concerned s. 10. This letter reads:

"I refer to your application, sent to me by facsimile on 18 August 1992, for a declaration under S10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, in relation to those areas for which you sought protection on or near the old Swan Brewery site. I have considered the significance of the area to Aboriginal people and the threat of injury or desecration which may occur as a result of the development proposal. However I do not believe that Commonwealth intervention in the form of a declaration under S10 would be the best way to resolve the situation to the satisfaction of the competing interests which are involved in this contentious area.

Accordingly, I have declined your application."

Mr Bropho then sought reasons pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act"), for Mr Tickner's decision to refuse his s. 9 application. The reasons were furnished on 12 January 1993. In those reasons Mr Tickner listed the matters which he had taken into account as follows:

"Findings on material questions of fact I was satisfied that the area, was or included, a 'significant Aboriginal area' within the meaning of the Act.

I was not satisfied that the area was under serious and immediate threat of injury or desecration.

Evidence or other material on which findings were based

1. Correspondence from the applicant, Mr Robert Bropho, dated 18 August 1992.

2. Correspondence from the Hon Dr Judyth Watson MLA, Western Australian minister for Aboriginal Affairs, dated 21 August 1992.

3. Ministerial briefs prepared by the Aboriginal and Torres Strait Islander Commission, dated 19 August and 22 August 1992, which amongst other things, made reference to a declaration under S.10 of the Act by my predecessor Minister Hand in relation to the area.

4. Disallowance by the Western Australian Legislative Council on 22 September 1992, of the Order made pursuant to S.38 of the Heritage of Western Australia Act 1990.

5. The consequential need for the Western Australian Government to comply with the requirements of the Aboriginal Heritage Act 1972

(WA) before any development in the area could proceed.

The reasons for my decision Following the disallowance of the order made under the Heritage of Western Australia Act 1990, with the consequence that the Western Australian Government was required to comply with the procedures set out under the Aboriginal Heritage Act 1972 (WA), and particularly in view of the requirement that the Western Australian Minister for Aboriginal Affairs refer the development proposal for the area to the Aboriginal Cultural Material Committee, I concluded that there was no serious and immediate threat of injury or desecration."

In the meantime, construction work had recommenced on the site.
The State Minister decided, pursuant to s. 18 of the Aboriginal Heritage Act 1972 (WA), to permit the development to proceed.
Section 17 of that Act provides that a person who excavates, destroys, damages, conceals or in any way alters any Aboriginal site or in any way alters, damages, removes, destroys, conceals or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site shall commit an offence unless he is acting with authorization of the Trustees (that is the Trustees of the Museum appointed under the Museum Act 1969) or the consent of the Minister under s. 18.
Section 18 permits the Minister to give consent to the use of the land for a purpose which, unless the Minister gives consent, would be likely to result in a breach of s. 17. Sub-section (3) of s. 18 gives the Minister a very wide discretion, going beyond consideration of the impact of a particular development on Aboriginal interests. It reads:

"(3) Where the Trustees submit a notice to the Minister under subsection (2) of this section he shall consider their recommendation and having regard to the general interest of the community shall either -

(a) consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or

(b) wholly decline to consent to the use of the land the subject of the notice for the purpose required, and shall forthwith inform the owner in writing of his decision."

The Minister's approval under s. 18 was given on 22 October 1992. Construction work recommenced about 12 November 1992.
Two proceedings were commenced in this Court. The first, proceeding, WAG 202 of 1992, was commenced on 8 December 1992 by Mr Bropho which relates to the s. 9 application. The second proceeding, WAG 9 of 1993, was commenced on 29 January 1993 by Mr Bropho and relates to the s. 10 application.
There was an issue at the trial concerning Mr Bropho's standing to seek review under the ADJR Act. His Honour found that Mr Bropho did have the requisite standing. This finding was not challenged on appeal.
The primary Judge considered the Minister's decision under s. 9 of the Act and dealt with three points.
First, his Honour rejected the argument that the Minister erred by acting in accordance with the direction of Cabinet and found that he acted on his own assessment of the situation.
Second, his Honour agreed with the argument of counsel for Mr Bropho that the Minister misdirected himself in law in concluding that he was not satisfied that the land was under serious and immediate threat of injury or desecration because the Western Australian legislation applied to the proposed development. His Honour found that, upon the proper construction of s. 9, the Minister is obliged to determine the matters committed to him under s. 9(1)(b) and that these are matters about which the Minister is bound to make up his or her own mind. The Minister may delegate to others the task of obtaining facts or information, but not the ultimate decision as to whether he or she is satisfied of the matters listed in paragraph (b). His Honour found that the Minister had remitted the determination of the question whether the land would be subjected to serious and immediate injury or desecration to the Government of the Western Australia, in particular the relevant State Minister, and that the Minister did not evaluate the situation for himself.

The Second Reading Speeches for the 1984 interim bill and the 1986 amendment bill both contemplated that the legislation would only be invoked as a last resort where State or Territory laws were ineffective or not in force. In 1986 it was said that the Act could not and would not be used where a State or Territory Government had given assurances or taken action to protect a heritage area. Commonwealth protection is of course unnecessary where State law has been applied to provide actual protection to a site. The question remains whether the Commonwealth Act contemplates that a State law which provides for discretionary protection of an area is a law which provides "effective protection of the area from threat of injury or desecration" (s.13(2)). Given that the Commonwealth Act itself provides at best a mechanism for conferring protection on heritage sites which is subject to competing public and private interests, it could not be said that a State law which provides a like mechanism fails for that reason to provide effective protection. None of the State laws in force at the time the Commonwealth Act was passed provided absolute or unqualified protection for such sites. In this regard I respectfully differ from the view expressed by the learned trial judge when he held that the reference to effective protection under State or Territory law requires that the law must "ensure that the area will be protected". The reality is, I think, that it was intended by the legislation to allow the Commonwealth Minister to intervene to protect a site in a case in which he or she took a view of the relevant public and private interests different from that taken by the State or Territory Minister. A State or Territory Minister might, for example, decide that the economic benefits of a proposed mining development would outweigh the public interest in protecting an area of significance to Aboriginals which would be adversely affected by that development. The Commonwealth Minister, on the other hand, could take a different view placing a higher value on the heritage area than on the proposed development. Or the Commonwealth Minister might take a lesser position that the mining development could proceed subject to restrictions imposed by a s.10 declaration. In either event, he could conclude that in an operational sense the State or Territory law did not provide effective protection to the relevant area. The decision of the Commonwealth Minister in such a case, while made within a statutory framework, is of a political character and, subject to compliance with the requirements of lawfulness, fairness and rationality, is not amenable to judicial intervention. The duty imposed by s.13(5) to revoke a declaration "where the Minister is satisfied that the law of a State or of any Territory makes effect provision for the protection of an area" depends upon whether the Minister is "satisfied". That involves an evaluative judgment of the content and operation of the State or Territory law. Although it is not necessary for this case to decide the point, it may be open to the Minister to be satisfied that there are effective provisions for protection of an area where there is a statutory process of assessment and proper recognition of the value of the area under State law even if in the end legitimate and competing public interests might outweigh that value.
As appears later in these reasons, constructional issues arising under s.9 of the Act which provides for temporary protective orders are similar to those arising under s.10. As in s.10, the power to make a declaration under this section is discretionary even if it be established that the area in question is one of significance and subject to threat of immediate injury or desecration - Wamba Wamba Local Aboriginal Land Council v. Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 86 ALR 161 at 170 (Lockhart J). The temporary or emergency nature of s.9 declarations necessarily allows the Minister in deciding whether to make such a declaration, to take into account the time that may be gained while assessment procedures under State law are undertaken. The refusal of a s.9 declaration does not preclude the grant of a s.10 declaration in the event that the relevant State government is not prepared to protect the subject area.

The Political Context
33. The disposition of this appeal turns on questions related to the proper construction of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the scope of the Minister's duties under that Act. It does not depend upon a consideration of the value of the Swan Brewery site as an element of Aboriginal or wider community heritage. Nevertheless reference to the basis for the heritage claim, and the nature of the controversy of which it is an element, is appropriate to ensure that the review process is not artificially divorced from the context of the decision. It was accepted by the former Minister, Mr Hand, when he made his declarations under ss.9 and 10 of the Act that the site was a "significant Aboriginal area" within the meaning of the Act, that is to say an area of particular significance to Aboriginals in accordance with the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals. Mr Hand was also satisfied when he made his s.10 declaration that the area was under threat of injury or desecration. In the context of this case, that implies that it was under threat of being used or treated in a manner inconsistent with Aboriginal tradition (s.3(2)(a)(i)). When the present Minister came to consider the application for a s.9 declaration, he too was satisfied that the area was a significant Aboriginal area within the meaning of the Act. And the learned trial judge found him to be again so satisfied for the purposes of the s.10 declaration.

In the present case, the context of the decisions which confronted the Minister was apparent from the materials which were before him. The long convoluted and litigious history of the controversy surrounding the Swan Brewery site was apparent from a chronology supplied to him by Mr Bropho and, no doubt, would have been apparent from his own departmental advice. It was also clear to him that the principal and longstanding protagonists in that controversy were the State of Western Australia which wanted the redevelopment to proceed and Mr Bropho's group which did not want it to proceed. On 20 March 1990 the High Court had delivered judgment in Bropho v. State of Western Australia (1990) 171 CLR 1 allowing an appeal against a decision of the Full Court of the Supreme Court of Western Australia, upholding a decision of a Master, striking out a statement of claim in proceedings between Mr Bropho and the State. In those proceedings, as the judgment discloses, Mr Bropho claimed injunctive relief on the ground that the State as owner of the brewery site had commenced and was carrying out the redevelopment of that site through the agency of the Western Australian Development Corporation. Relief was claimed on the basis that the work constituted a breach of s.17 of the Aboriginal Heritage Act 1972 (WA). The State supported its contention that no reasonable cause of action was disclosed by submitting that the statute did not bind the Crown in right of the State. This contention was rejected by the High Court.
The conflict between the State Government and those who opposed the redevelopment of the brewery site has since that time been a matter of public notoriety in Western Australia. On 19 December 1990, Rowland J made a declaration, in proceedings which had been instituted on 7 December, that a decision by the State Minister for Aboriginal Affairs giving consent to the proposed development under s.18 of the Aboriginal Heritage Act 1972 (WA) was void. The owner's notice of proposed use pursuant to s.18(2) of that Act had been given to the trustees of the museum by the State Minister for Works and Services and the Minister for Lands respectively. Rowland J declared the decision to have been void for failure by the Minister for Aboriginal Affairs to accord natural justice to the Aboriginal objectors to the development - Bropho v. State of Western Australia (1990) 21 ALD 730. The judgment at first instance was reversed by the Full Court on 14 October 1991 - State of Western Australia v. Bropho (1991) 5 WAR 75. The High Court refused an application for special leave to appeal on 8 May 1992. Attachments to Mr Bropho's submission to the Minister included materials indicating that on 18 June 1992 the State had entered into a lease agreement with a subsidiary of Multiplex Constructions Pty Ltd, Bluegate Nominees Pty Ltd, under which that company would undertake redevelopment of the site. Among the materials before the Minister was evidence that the proposed redevelopment includes provision for an additional three storey building on the site extended from the original brewery buildings. It will involve the construction of a 300 bay carpark to serve the buildings. The carpark is to be constructed at the foot of the Mt. Eliza escarpment in Kings Park on the roadside opposite the renovated and extended brewery building. It will be linked by a pedestrian overpass to the buildings. The ground floor of the development will be open to the public and will include restaurants, specialty shops, a museum, an art gallery and a 150 seat theatrette. The first and second floors will be able to be used for office space save for another restaurant on the second floor. The Minister therefore had before him in August 1992 material which indicated a substantial development of the site in which the State was directly involved. He was also told in Mr Bropho's submission of 18 August of the order made by the Minister for Heritage for the State of Western Australia on 11 August 1992 to the effect that the relevant State Planning and Aboriginal Heritage legislation would not apply to the brewery site. Although that order was subsequently disallowed, the commitment of the State Government and the relevant State Ministers to the redevelopment of the site was plain. The Minister's knowledge of the State's involvement was reflected in his letter to Bropho of 11 November 1992 in which he said he had been "following closely the recent events surrounding the Western Australian Government's proposed redevelopment of the brewery site."

The Waugyl Tradition
36. There was material before the Minister relating to the content of Aboriginal traditions about the site and its environs. It indicated that the significance of the brewery site is to be seen in the context of the wider tradition of the Dreamtime. According to the evidence of that tradition which Mr Bropho presented to the Minister, the Swan River and associated landscape features are part of a complex of myths centred upon an ancestral being called the Waugyl which created the river and its tributaries during epic journeys in the Dreamtime. The Waugyl is one of a number of ancestral beings responsible for physical creation. It is akin to the great Rainbow Serpent which figures in Aboriginal legends throughout Australia. There are creative and punitive aspects of the Rainbow Serpent. According to Aboriginal mythology, the Waugyl commenced its journey to the sea at the sources of the Swan River. Along the way there were particular sites at which it rested or engaged in activities. These are regarded as sacred places of special power which may be beneficial or harmful according to the behaviour of those who approach them. Many such sites were well established points where Aboriginal people traditionally met to trade and where inter-group meetings took place. Such sites might be used for the settlement of disagreements, the establishment of alliances and the teaching of initiates in the responsibilities of manhood. The teaching included the transmission of the mythology associated with particular places and the rituals necessary to pay due respect to the Waugyl. The medium for the transmission of the mythology was song.

European recognition of a linkage in Aboriginal mythology between the Waugyl and Mt. Eliza, including the Swan Brewery environs dates back to 1836. There is a number of later documented references which indicate that the association is one of long standing. A water source in Kings Park on the slopes of Mt. Eliza is said to have been created by the Waugyl which then went underground and emerged at the base of the escarpment to create a spring now known as Kennedy Fountain. This is located not far from the brewery site on the other side of Mounts Bay Road. There was evidence also of oral tradition of an Aboriginal spring on the brewery site, although whether such a spring actually existed or whether the tradition referred to a near surface aquifer was not clear. Overall the material indicated a close association in Aboriginal tradition between the brewery site and its environs and the dreaming track of the Waugyl.
The site was used by European settlers from the early days of the colony. In 1831 buildings were constructed for a proposed shipyard. That project was abandoned and in 1833 a government feeding depot was established on the site. It became known as the Mount Eliza Native Institution and operated until 1838. Subsequent constructions on the site included a flour mill and the brewery itself which operated from the latter part of the nineteenth century until its operations were discontinued in 1966. It was used for storage purposes up to the mid 1970's. The State of Western Australia acquired it from a private owner in the 1980's and the site was revested in the Crown in right of the State of Western Australia which remains its owner today.

The Emergency Declaration Decision
39. In construing s.9, the learned trial judge held that it involved a three stage process:

1. Receipt of an application from a qualified person or persons (s.9(1)(a)).

2. Determination by the Minister whether he or she is satisfied:

(i) that the area is a significant Aboriginal area

(s.9(1)(b)(i));

(ii) that it is under serious and immediate threat of injury (s.9(1)(b)(ii)).

3. If so satisfied, exercise by the Minister of the discretion to make a declaration.

The second stage of the process, so his Honour found, requires the Minister to determine the relevant facts after making such inquiries as are reasonable and possible in the time available. Factual aspects of the inquiry may be delegated but not the determination as to whether the Minister is satisfied of the matters in s.9(1)(b). One ground of the amended grounds of appeal asserts that his Honour erred in law in holding that the discretion vested in the Minister under s.9 could not be exercised until after he had determined the threshold matters. It was submitted in support of that ground that the Minister has a wide discretion and where the considerations against making a declaration are overwhelming and the application gives rise to complex and contested questions of fact, it is not necessary to resolve the matters raised by s.9(1)(b) before refusing a declaration.

Section 9 in terms conditions the Minister's power to make an emergency declaration upon a determination, to his satisfaction, that the area the subject of the application is a significant area and that it is under serious and immediate threat of injury. The declaration cannot be made if the Minister is not so satisfied and may be refused even if he is so satisfied. There is no express obligation upon the Minister, seized of an application for an emergency declaration, to inquire into those questions. Any implied obligation must reflect legislative intention. In discerning that intention, regard may be had to the language and purpose of the provision under consideration:

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task, the Courts look to the operation of the statute according to its terms and to legitimate aids to construction." - Cooper Brookes (Woollongong) Pty Ltd v. Federal Commissioner of Taxation (1981) 35 ALR 151 at 169-170

Where implication is open the Court may have regard to the reasons underlying the enactment of the legislation - Pearce - Statutory Interpretation in Australia - 3rd Edition Butterworths (1988) para.2.21. Implication of powers or duties in a statute is to be approached cautiously as are all implications. It may be justified if necessary to the operation of the legislation. Thus ancillary powers are implied in aid of express statutory power - Attorney-General v. Great Eastern Railway Company (1880) 5 App Cas 473. On a like basis, duties necessary to the discharge of a statutory function by a public official may also be implied. It has been said necessity is too narrow a base for statutory implication. In Chorlton v. Lings (1868) LR 4 CP 374 at 387, Willes J said that the legal meaning of an enactment includes "what is necessarily or properly implied". The learned author of Bennion - Statutory Interpretation 2nd Ed., Butterworths (1992) at p 367 proposes that while the implications intended are a matter of inference it is often psychological rather than logical inference that is involved:

"The question of whether an implication should be found within the express words of an enactment depends on whether it is proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention. It is for the Court to decide whether a suggested implication is "proper". This may involve a consideration of the rules of language or the principles of law, or both together. Where the point is doubtful it will, as always in interpretation, call for a weighing and balancing of the relevant factors."

"Need", it has been said, is merely an emphatic form of want. And it is true that there are inescapable elements of evaluation in a "necessity" test for implication. The frank adoption of the concept of "proper implication" which considers statutory language context and purpose is to be preferred.

The stated purpose of the Act supports the submission that the Minister, when faced with a bona fide application under s.9(1)(a), is bound to consider whether it relates to a significant Aboriginal area and whether, if so, that area is under serious and immediate threat of injury or desecration. The obligation would be discharged by a determination that one of those conditions is not satisfied. If the area is not of significance in the relevant sense, then the question whether there is a serious and immediate threat to it does not arise. If there be no serious and immediate threat, then the question whether the area is one of significance need not be determined. This analysis extends beyond the two conditions in s.9(1)(b). For it may be that the Minister consults with the appropriate State Minister as required by s.13(2) and concludes that there is, under a law of the State, effective protection of the area from the threat of injury or desecration. As already observed, the nature of "effective protection" under State law can extend to the application of mechanisms under State law which allow for evaluation and discretionary protection of heritage areas. If the Minister considers that there is effective protection under State law, then depending upon the nature of the case, he or she may thereby be satisfied that there is, for the purpose of a. s.9 declaration, no threat of immediate injury or desecration. That is so notwithstanding that the State law provides, as State laws generally do, for a mechanism for assessment of the heritage area and for a discretionary determination on the question whether any or some protection should be afforded to it. For it is to be expected that at least during the predetermination process, the status quo will be maintained.

Where the Minister is not satisfied that there is effective protection under State law in this minimal and temporary sense then, in my opinion, the high value accorded by the Act to areas of significance to Aboriginal people and its clear protective purpose would require a determination whether the conditions under s.9(1)(b) were satisfied. This analysis differs from that of the learned trial judge only to the extent that it would accept that a finding on the part of the Minister that there is effective protection (albeit temporary) under State law will avoid the requirement for an independent determination of significance and threat under s.9(1)(b).
The learned trial judge held that the Minister had left the destiny of the site and the existence and extent of any threat to its traditional Aboriginal use in the hands of the relevant State Minister. This conclusion was attacked on the ground that there was no or no sufficient evidence to support it. In connection with this finding, the learned trial judge referred to the Minister's letter to Mr Bropho of 11 November 1992 and his statement of reasons for the s.9 decision provided under s.13 of the Administrative Decisions (Judicial Review) Act 1977. He did not rely upon the letter because in it the Minister gave no clear reason for declining to make the s.9 declaration. In the reasons for decision however, the Minister referred to the disallowance of the order made under the Heritage of Western Australia Act 1990 and the resulting requirement that the Western Australian Government comply with procedures set out under the Aboriginal Heritage Act 1972 (WA). He concluded that there was no serious and immediate threat of injury or desecration. The learned trial judge's reasoning in part seems to find error by the Minister in this respect independently of the question whether or not the State Minister had already given consent to the development under s.18 of the Act and whether or not the Minister knew of that consent. Absent such consent there would, in my opinion, have been no error in the Minister concluding that for the purpose of averting the threat of immediate injury or desecration to the area the invocation of the State law was sufficient. That is not to say that such a conclusion would have carried over to the question whether a declaration should be made under s.10.
The learned trial judge, having found the Minister to be in error in the way I have described however, went a step further in his reasons and held the Minister to have acted irrationally. This conclusion turns on his Honour's express finding that by the time the Minister made his decision, the State Minister had already consented to the development under s.18 of the State Act. By that time his Honour concluded, it was irrational to rely upon the Western Australian Act to ensure the protection and preservation of the site. His Honour's finding of irrationality was attacked upon the basis that the case before him was to be determined in the light of the grounds set out in the application for review and the information that was before the Minister. It was submitted that the finding that the Minister's decision was irrational was based upon events which occurred after he had made the decision. These events included the Minister's consent to development and the subsequent activities at the brewery site. There is no evidence, it was said, that any information on the subsequent developments was before the Minister.
Although the State Minister's consent to the development was given nearly three weeks before the letter of 11 November 1992, counsel for the Minister informed the Court from the bar table that the Minister had made a decision and instructed his staff to prepare the letter conveying that decision and that it took "a lot of time" for that letter to be finalised. This did not appear in the evidence. Nor did the date of the Minister's decision. On the other hand, none of the grounds set out in the application for review of the Minister's decision in relation to the s.9 declaration alleged that the consent given by the State Minister was known to the Minister when he made his decision. The thrust of the unreasonableness ground as particularised seems to have been that the position of the State Minister was clear and that in deferring, albeit temporarily, to the mechanism provided for under the State Act, the Minister was in effect deferring to what was a predetermined decision to proceed with the development. In my opinion, the factual basis for the finding of irrationality namely that a consent had been given at the time of the Minister's decision was not within the general framework of that ground. Certainly, there was no suggestion in the grounds that the Minister knew of the consent. That would have been a most serious allegation which would have made a sham of the reasons for decision subsequently provided.
A finding that the Minister believed that the outcome of the State Minister's consideration was a foregone conclusion would not necessarily have supported a conclusion of unreasonableness in the refusal of an emergency declaration. The assessment process under State law in delaying the continuance of works on the site would have removed the threat of immediate injury that is essential to the invocation of s.9. It is difficult to imagine however in the context of the public history of this controversy that the Minister could have formed any belief other than that the State Minister's consideration was a foregone conclusion. In my opinion therefore, the Minister's decision in relation to the emergency declaration was not shown to have involved either error of law or irrationality. In the circumstances of the case and having regard to the policy underlying the legislation, it would have been a sensible and appropriate course to allow processes available under State law to be exhausted before giving consideration to the question of any declaration under the Commonwealth Act. In respect of the s.9 declaration, I would allow the appeal against his Honour's judgment.

The Section 10 Declaration Decision
47. In relation to the application for a declaration under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Minister found, as was apparent from the statement of reasons in relation to the s.9 declaration, that the area was or included a significant Aboriginal area within the meaning of the Act. As indicated in his letter of 7 January 1993 to Mr Bropho the Minister also considered "...the threat of injury or desecration which may occur as a result of the development proposed". He did not disclose the result of that consideration but went on to say that he did not believe that Commonwealth intervention in the form of a s.10 declaration would be the best way "to resolve the situation to the satisfaction of the competing interests which are involved in this contentious area". As to that, it may perhaps be said immediately that it is not a requirement of the Act that a declaration under s.10 should satisfy competing interests. The Act plainly contemplates the possibility that some interests adverse to a heritage area may be affected by a protective declaration.

His Honour held that the letter of 7 January indicated that the Minister had avoided any conclusion on the question whether there was a threat of injury or desecration to the area. He held that the Minister meant to convey a view that it did not matter whether there was such a threat because a s.10 declaration "would not be the best way to resolve the situation". This finding was attacked as involving speculation about the reasons for the Minister's decision. The purpose of the letter, it was said, was to fulfil the requirements of s.16 of the Act, namely to notify Mr Bropho of the Minister's decision. It did not purport to be and was not a comprehensive statement of reasons for refusing the declaration. The letter, it was submitted, did not say and did not imply that it did not matter whether there was a threat of injury or desecration. The fact that the letter was not and did not purport to be a statement of reasons for the purposes of the Administrative Decisions (Judicial Review) Act 1977 does not invalidate his Honour's construction of it. There is no doubt that the Minister regarded the area as one of significance to Aboriginal people. He said so in his reasons for the s.9 decision. He could not rationally have concluded that there was no threat of injury or desecration to it having regard to the facts of which he was aware. What then was the role of the word "may" in the letter when he spoke of a threat of injury or desecration which may occur? (emphasis added) I respectfully agree with his Honour that what the text conveys is that the threatened injury or desecration may or may not occur but in any event a declaration would not be the best way to resolve the situation. His Honour put what in my opinion was the most reasonable construction available on the letter.
The question then arises whether or not the Minister being seized of Mr Bropho's application was required to determine whether or not he was satisfied of the matters referred to in s.10(1)(b). His Honour found such an obligation to arise as a matter of necessary intendment. He said:

"It seems to me wholly unreasonable to read s.10(1) as permitting a Minister who has received a proper application from a qualified person or persons, to decline to address the critical threshold matters specified in para.(b); in effect to ignore the application.

Of course, this does not mean that the Minister is bound to make a declaration under s.10, even if satisfied of the threshold matters. Parliament has quite plainly reserved to the Minister an ultimate discretion, evidenced by the word "may" in the concluding clauses of the sub-section. But I think it did intend that the Minister exercise that discretion only after having addressed the issues specified in para.(b) and considered the materials mentioned in paras. (c) and (d). The ultimate decision may be against the applicant's plea for preservation or protection of the specified area, but it will then at least be an informed decision in which the case for protection or preservation is weighed carefully against any considerations militating against the making of a declaration. The values which underpin the Act will have been vindicated by the decision- making process even though, on balance, the ultimate decision is against taking steps to protect or preserve the particular area."

It was submitted on behalf of the Minister that an application for a s.10 declaration may be refused without a conclusive determination of the matters under s.10(1)(b). The making of such a determination, it was said, may involve the resolution of complex factual matters. There would be no point in so doing where it is the Minister's view that because of overwhelming national interest or financial considerations a declaration must be refused.

In my opinion, the reasoning applicable on this issue in relation to a s.9 declaration applies to s.10. It may be that the Minister is informed from the outset that the State Minister proposes to act under State law to ensure that the relevant area would not be disturbed. That would found a conclusion that the area is not under threat of injury or desecration. The question of its significance would not have to be addressed. It may be that the Minister is satisfied for other reasons that there is no threat of injury or desecration. No consideration of the particular significance of the site would then be required. And of course if the area were found not to be of particular significance to Aboriginals, then there would be no need to consider questions of injury or desecration. At first blush, similar logic seems to support the Minister's submission that where overwhelming national interest or financial considerations would mandate discretionary refusal of a declaration, there is no need to embark upon a consideration of the matters of significance and threat under s.10(1)(b). But that logic fails to recognise that the s.10 declaration may be crafted in a variety of ways extending from full protection of an area to partial or conditional protection. A declaration may "contain provisions for and in relation to the protection and preservation of the area from injury or desecration" (s.11(1)(b)). The scope and content of declarations which the Minister is authorised to make under the section is not limited by that provision. Sections 10(3) and 10(4) and s.13 of the Act contemplate a consultative process involving persons who may be affected by a declaration and the relevant State or Territory Minister. They also contemplate a weighing of competing interests. The possibility may be accepted that a situation could arise in which there is a public or private interest of such weight that it would take priority over the public interest in the preservation of an area of significance to Aboriginals. That possibility does not support the proposition that the Minister could ever conclude, without investigation of the matters arising under s.10(1)(b), that no form of partial or conditional protection were possible. The balancing of interests which the Act contemplates allows for the possibility of compromise which involves recognition if not satisfaction of all relevant interests. The Second Reading Speech to the 1986 amendment described the Act as giving the Commonwealth authority to bring affected parties together to conciliate, mediate and negotiate to remove a threat of injury to a significant Aboriginal area or object. The balancing process could not be embarked upon without an appreciation of the public interest in the preservation and protection of the area in question. In my opinion that consideration requires a determination by the Minister of the question whether the area is one of significance and if so, whether it is under any and if so, what kind of threat. Alternatively, it requires a determination that the area is under threat and if so, whether it is an area of significance. On his Honour's finding, the Minister has failed to discharge that obligation and erred in law in so doing.
The question remains whether in the exercise of his functions under s.10 the Minister is required, before refusing a declaration, to obtain a report of the kind mentioned in sub-s.10(4). His Honour, after considering the provisions of s.10 relating to the report, concluded that:

"It would be unreasonable to attribute to Parliament the intention to allow the Minister to refuse without report an application properly made and relating to an area that is of Aboriginal significance and under threat of injury or desecration."

The Minister's submissions on this point were similar to those advanced upon the operation of s.10(1)(b). There is, it was submitted, no obligation to obtain a report. The report is merely a precondition to the making of a declaration. The point was made that to obtain a report is time-consuming and expensive. The procedure for the making of representations gives rise to burdens on other people. If a report were required in every case then, it was argued, there would be numerous instances in which it would serve no useful purpose. These would include cases of frivolous or vexatious applications, a fresh application by one group following refusal of an application by another in respect of the same area, overwhelming national interest considerations mandating refusal and the absence of funds for compensation which would be payable if a declaration were to be made.
The case of the frivolous and vexatious application is resolved upon the basis that s.10 is only enlivened by a bona fide application which answers the description in s.10(1)(a). Where there is a bona fide repeat application, albeit by a different person or group, there is no reason why consistently with the existence of an obligation to obtain and consider a report, the Minister could not consider a report previously provided "in relation to the area from a person nominated by him". Where a report had been obtained in respect of a prior application, then no doubt the advertising requirements would also have been met. If there were some substantial lapse of time since the previous report had been obtained or some change in the boundaries of the area under consideration then there is no reason to suppose that a report obtained in relation to the area under consideration could not incorporate by reference the findings of an earlier report.
The arguments about overwhelming national interest and compensation are, I think, to be met in the same way as those in relation to overwhelming national interest affecting the duty to make a determination of the kind contemplated by s.10(1)(b). The decision to make or refuse a declaration does not involve a choice between no protection and complete protection of the entire area claimed. A partial or conditional protection may represent an appropriate balance of interests. In a case in which there is a bona fide application for a declaration relating to an area of significance to Aboriginals which is under threat of injury or desecration and in which State law does not provide effective protection in the sense previously discussed, the Minister cannot refuse a declaration without considering the competing interests using the procedures for which the Act has provided. That is, in my opinion, a proper implication having regard to the statutory purpose and the policy which is apparent from the language of the Act and the background to its enactment. In my opinion the appeal against the decision in relation to the s.10 determination must be dismissed.

CONCLUSION
55. For the reasons stated above, I would allow the appeal against his Honour's decision in respect of the emergency declaration but dismiss the appeal against the decision in respect of the Minister's refusal to make a declaration under s.10.

[1993] FCA 306

30 APRIL 1993