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Court and Tribunal Decisions - Australia
Federal Court of Australia (Wilcox J)
30 May 2003
Administrative law — decision of Minister refusing application for interim protection declaration under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) — application related to area of proposed mining lease being part of a lakeshore — material indicating significance of the lake itself and also of archaeological relics in the subject land — decision concentrated attention on the wider area rather than the proposed mining area — whether Minister failed to take into account a relevant consideration — whether decision was unreasonable — Minister's decision set aside — whether Court should make an interim order restricting on-site work pending reconsideration by Minister
Barrick Australia Ltd was granted a mining lease for a specified area at Lake Cowal in central New South Wales. An exploratory drilling program was underway and arrangements had been made to commence a program of identifying Aboriginal artefacts and removing them to protective storage. Neville Williams applied to the Minister (the first respondent) to make a declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which permits the Minister to make a declaration in relation to an area if he is satisfied that the area is a significant Aboriginal area that is under serious or immediate threat of injury or desecration.
The Minister was not satisfied that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition. The Minister stated that, while the wider Lake Cowal area might be of particular significance, the evidence presented regarding the specified area was not satisfying.
Williams filed an appeal for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘AD(JR) Act’). Two grounds were pressed. First, failure to take into account a relevant consideration under s 5(2)(b) and second, Wednesbury unreasonableness under s 5(2)(g).
1. The law, consistent with the insistence of substance over form, requires that, if a decision-maker is to avoid the reproach of having failed to take into account a relevant consideration, it must appear he or she has given ‘proper, genuine and realistic’ (and not merely token) consideration to all material available and relevant to the decision. Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 followed [29].
2. There are occasions on which a failure to take into account a relevant consideration overlaps with unreasonableness. However, a court is not entitled to strike down an administrative decision on the ground of unreasonableness simply because the judge would have decided the issue differently. Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 followed [33].
3. The Minister had two alternatives in coming to the conclusion that the specified area did not share the particular significance that he thought might attach to the whole. Both alternatives required detailed analysis of the material, as it relates to the specified area. The reasoning process in the Minister's statement of reasons indicates he took neither of the courses indicated. The statement of reasons failed to indicate how the Minister came to the conclusion that the specified area did not share the particular significance that he thought might attach to the whole [41]–[42].
4. The Minister did not take into account the material relating to artefacts in consideration of the specified area [43].
5. The Minister failed to give proper, genuine and realistic consideration to the significance of the specified area, as distinct from the wider Lake Cowal area. Thus, he failed to take a relevant consideration into account and s 5(2)(b) of the AD(JR) Act was made out [44].
6. The Minister’s refusal to make a declaration is invalid. The decision is to be set aside and remitted to Minister for consideration and determination according to law [48].
7. Pending further determination by the Minister, the second respondent is to be restrained from carrying out any work on the land, with the exception of certain specified work (Order 5) [51].
8. In an Ex Tempore Addendum to Reasons for Judgment, after an application by the second respondent, Wilcox J revoked order 5 on the basis that he did not have the power to make such an order under s 16(1)(d) of the AD(JR) Act. The Court only has the power to make orders under s 16(1)(d) where there is a right under the general law against a party. Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 applied [55].
9. Order 5 was revoked and a new Order 5 issued, directing the Minister to determine the remitted application and notify his decision to the relevant parties by not later than 13 June 2003 [63].
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17. The Minister concluded:
24. Most of the evidence relating to significance in Mr Williams' application did not relate to the specified area, but rather the broader Lake Cowal area, with the exception of several sites previously registered by the New South Wales National Parks and Wildlife Service (‘NSW NPWS’). It was clear that Mr Williams, in his application, provided detailed information on the significance of the broader Lake Cowal area in accordance with Aboriginal tradition. It was not clear whether these assertions of significance related to the specified area.
25. In my consideration of the application, I recognised that the wider Lake Cowal area might be of particular significance to Aboriginals in accordance with Aboriginal tradition. However, the evidence presented in the application did not satisfy me that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition.
26. On the basis of the evidence before me, I was not satisfied that the specified area was of particular significance to Aboriginals in accordance with Aboriginal tradition.
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27. During the course of oral submissions, mention was made of some principles underlying judicial review of administrative decisions. In view of their importance, I should refer to them.
28. First, the essential difference between judicial review and merits review is that, in merits review cases, but not judicial review cases, a court may substitute its own view about the facts of the case for that of the original decision maker. In judicial review cases, determination of the relevant facts is solely for the original decision-maker. In the course of considering a ground of review that is made available to an aggrieved party by common law or statute – for example, by s 5 of the ADJR Act – it may be necessary for a Court to consider carefully the decision-maker's reasoning which led to the findings of fact. However, under the guise of doing this, it should not substitute its own view of the facts for that taken by the original decision-maker. The rationale of this rule was explained by Spigelman CJ, of the New South Wales Supreme Court, in Bruce v Cole (1998) 45 NSWLR 163 at 184-185. His Honour said:
it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society such conduct transgresses the proper limits of judicial intervention. It will, if often repeated, undermine the basis for judicial independence and the fundamental role which judicial impartiality plays in the social stability of the nation and the maintenance of personal freedom of its citizens.
29. On the other hand, and consistently with this insistence on substance over form, the law requires that, if a decision-maker is to avoid the reproach of having failed to take into account a relevant consideration, it must appear he or she has given ‘proper, genuine and realistic’ (and not merely token) consideration to all material available and relevant to the decision. The word ‘relevant’, in this context, was explained in Peko-Wallsend.
30. The need for proper consideration has been pointed out in many cases. They are collected in the reasons for judgment of Spigelman CJ in Bruce v Cole at 185–186. Some of the cases arose under the ADJR Act, some under the common law; but the test is much the same. It was expressed by Gummow J, in an ADJR context, in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291:
what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ... (Citations omitted.)
31. There are also cases, at least under the ADJR Act, in which administrative decisions have been held to be vitiated by the circumstance that the decision-maker made the decision under a misapprehension of material matters of fact: see Minister for Immigration and Ethnic Affairs v Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341 at 348 (Bowen CJ and Franki J) and 365 (Davies J), Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561 at 573 (Smithers J) and Akers v Minister for Immigration and Ethnic Affairs [1988] FCA 459; (1988) 20 FCR 363 at 373 (Lee J).
32. There are occasions on which failure to take into account a relevant consideration overlaps with unreasonableness. A court is not entitled to strike down an administrative decision on the ground of unreasonableness simply because the judge would have decided the issue differently. Section 5(2)(g) of the ADJR Act refers to ‘an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power’.
33. In Council of Civil Services Unions v Minister for Civil Service [1985] AC 374 at 410, Lord Diplock spoke of unreasonableness requiring a decision "so outrageous in its deficiency of logic or of accepted moral standards that no reasonable person who had applied his mind to the question could have arrived at it". In Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 87, Sheppard J disassociated himself from that formulation. He cited the then recent decision of the High Court of Australia in Chan Yee Kim v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; 87 ALR 412 as a case not falling within Lord Diplock's description in which manifest unreasonableness was found. Chan was a case in which the decision-maker had apparently misunderstood some of the facts and had made a finding (that the appellant did not have a well-founded fear of persecution) that was both unexplained and at odds with accepted evidence.
34. Notwithstanding the difference between the language used by Lord Diplock and that of Sheppard J, it is not enough, either in the United Kingdom or Australia, that the judge disagrees with the decision under review. In Re Minister for Immigration and Multicultural Affairs; ex parte Eshetu [1999] HCA 21; 197 CLR 611 at para 137, Gummow J said:
where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
35. In para 17 above, I set out the critical part (paras 24 and 25) of the Minister's statement of reasons. As mentioned, Mr Oshlack [appearing on behalf of the Respondent] criticised the opening and closing sentences of para 24. He asserted it was incorrect for the Minister to say, first, that ‘[m]ost of the evidence relating to significance in Mr William’s application did not relate to the specified area, but rather the broader Lake Cowal area’ and, second, that it was not clear whether the assertions of significance related to the specified area.
36. The first sentence in para 24 might puzzle anyone who had read the evidence put by Mr Williams before the Minister. That evidence fell into two categories. First, there was evidence about the significance of Lake Cowal, considered as a whole. This involved the Dreaming story of the Rainbow Snake, the reputed massacre (the exact location of which is apparently unknown) and the significance of the lake as a traditional ceremonial site and source of food. It was certainly correct for the Minister to regard this evidence as relating to ‘the broader Lake Cowal area’, but it seems also to have related to the specified area, as part of the whole.
37. The second category of evidence, which was preponderant in terms of volume, was archaeological evidence. Overwhelmingly, the identified archaeological sites and artefacts were within the specified area. The probable reason for this is that the proposal for a mining lease had caused this area to be subjected to particular scrutiny. Whatever the reason, there is no doubt that, in terms of volume, the bulk of Mr Williams' material (and Barrick's response to it) concerns the specified area, rather than the broader Lake Cowal area.
38. Notwithstanding my reaction to the first sentence of para 24, I am not able to find it a source of invalidity. The sentence expresses a judgment by the Minister about the evidence. It was for the Minister to determine the facts relevant to his decision. That task necessarily required him to evaluate the evidence, including by making qualitative judgments about it. If I were to substitute my view for that of the Minister, in relation to that matter, I would commit the error that Spigelman CJ warned against in Bruce v Cole.
39. Although it was a matter of competing submissions, I think the meaning of the final sentence of para 24 of the Minister’s reasons is clear and that, in itself, the sentence is unexceptional. The words ‘these assertions of significance’ refer back to the preceding sentence’s reference to ‘detailed information on the significance of the broader Lake Cowal area’. In his final sentence in the paragraph, the Minister is simply saying it is not clear whether the asserted matters of general significance in respect of Lake Cowal (the Rainbow Snake, the massacre, the function of the lake in providing food and ceremonial sites) were applicable to the specified area. The Minister is not saying that Mr Williams asserted that only the ‘broader Lake Cowal area’, as distinct from the specified area, had particular significance to Aboriginals in accordance with Aboriginal tradition.
40. On that reading of para 24, the Minister is accepting that Mr Williams had asserted that the broader Lake Cowal area had particular Aboriginal significance. In the opening sentence of para 25 the Minister recognised this might be the case. If that was so, the question would naturally arise whether that part of the broader Lake Cowal area that was within the specified area might share that particular Aboriginal significance. It would not necessarily do so. Speaking hypothetically, there might be material indicating the specified area was different in kind to the generality of the area; for example, it might be shown not to have been a place of traditional Aboriginal resort. If there was such material before him, it would have been open to the Minister to say that, notwithstanding that the broader Lake Cowal area might be a place of particular Aboriginal significance, he was satisfied this was not true of the specified area, the area with which he was directly concerned.
41.The difficulty about the Minister's statement of reasons, as it seems to me, is that it goes directly from the first sentence of para 25 to the second, without indicating how the Minister came to the conclusion that the specified area did not share the particular significance that he thought might attach to the whole. Logically, there are two alternative ways in which this might have been done:
(i) having reached a tentative conclusion about the wider Lake Cowal area, the Minister might have investigated the matter further in order to reach a definite decision, and have concluded, first, that in fact the wider ara did not have particular Aboriginal significance and, second, that there was nothing about the specified area that put it into a different category; or
(ii) retaining the tentative conclusion about the wider area, the Minister might have focussed particular attention on the specified area and satisfied himself that it did not share the characteristics of the whole.
Both of these alternatives would have required detailed analysis of the material, as it relates to the specified area.
42. The Minister's statement of reasons was required, under s 13 of the AD(JR) Act, to be ‘a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision’. So it is reasonable, and not unfair to the Minister, for me to approach the case on the basis that the statement fully reveals his reasoning process and the evidence that he took into account. It will be apparent that he took neither of the courses indicated in the preceding paragraph. Nowhere did the Minister indicate that he had considered whether the particular significance that might attach to the broader Lake Cowal area might also attach to the substantial portion of it that fell within the specified area. There was nothing in Mr Williams’ material that suggested it did not. Indeed, the abundance of archaeological material discovered in the specified area would tend to suggest it did. Although there was dispute between the experts about the rarity and significance of many of the artefacts, it seems to have been common ground between them that the artefacts indicated a substantial Aboriginal connection with the specified area. Why did this not suggest the specified area at least shared whatever significance attached to the lake as a whole? The Minister did not say.
43. The Minister did make a claim to have taken into account the material relating to artefacts. In the opening words of para 23 he said:
‘In summary, I considered the significance values of Lake Cowal according to Mr Williams, with support from other Wiradjuri people and consulting archaeologists to be as follows’.
The Minister then listed numerous items. He included ‘Aboriginal stone artefacts including: density, diversity and possible subsurface artefacts (identified by Neville Williams, William Shawcross and David Johnston)’. However, the Minister said he had taken account of the listed material in consideration of ‘the significance values of Lake Cowal’ – that is, Lake Cowal as a whole, not the specified area. Nowhere did the Minister relate this material to the issue he had to determine: the significance of the specified area.
44. In the second sentence in para 25, the Minister said he was not satisfied about the particular significance of the specified area. That was a matter for him to determine. If he had reached that conclusion without legal error or manifest unreasonableness, it would not be vulnerable to attack in this Court. However, when the Minister's statement of reasons for decision is read as a whole, it seems to me clear that he failed to give proper, genuine and realistic consideration to the significance of the specified area, as distinct from the wider Lake Cowal area. Accordingly, he failed to take a relevant consideration into account; indeed, he failed to address the very issue he was required to consider. The ground identified in s 5(2)(b) of the AD(JR) Act is made out.
45. I make clear that, in finding Mr Williams has made out a case for relief, I am not expressing any view about some contentious surrounding issues.
46. First, my decision does not indicate any view about the merits of the contest between the Mooka Traditional Owners Council and the Wiradjuri Council of Elders (or any other group) to be recognised as the proper representative of the traditional owners of the land. Unless that issue is resolved by agreement, it may have to be addressed in one or more of the native title proceedings that are now pending before the Court. It does not arise in this case. Mr Williams’ entitlement to make an application arose out of the undisputed fact that he is an Aboriginal, within the definition of that word in s 3 of the Act, and accordingly is entitled to seek a declaration under s 9 of the Act. Because his application was refused, he was entitled to seek review of the Minister's decision in this Court; he is a ‘person who is aggrieved’ by the Minister's decision: see the opening words of s 5(1) of the AD(JR) Act. His standing in this Court has nothing to do with his position in the Mooka Traditional Owners Council or the status or activities of that body.
47. Second, my finding that the Minister's decision is legally flawed does not reflect any view about the degree of Aboriginal significance that attaches to the specified area. That is a matter for the Minister to determine, not for me. Similarly, it is for the Minister to determine whether it is appropriate for him to make a declaration under s 9 of the Act. I intend to indicate no view about that.
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53. Earlier this morning, I set aside a decision made by the first respondent, the Minister for the Environment and Heritage (‘the Minister’), in which he refused to make a declaration pursuant to s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act. I held the Minister's decision was invalid, for reasons that I gave. I directed the matter be remitted to the Minister for consideration and determination according to law. I also made an order that, pending further determination by the Minister of the applicant's application for a declaration, or further order of a judge of the Court, the second respondent, Barrick Australia Limited, be restrained from carrying out any work on the land, the subject of the s 9 application, with the exception of certain specified work.
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55. Unfortunately, in taking that course, I overlooked the decision of the High Court of Australia in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408. This decision was not drawn to my attention in submissions at the hearing. In saying that, I offer no criticism of counsel. Counsel for Barrick on that occasion, Mr Neil Williams SC, attended court at short notice and probably without any prior awareness of the possibility of a restraining order being made against his client. Having now read Johns, I am satisfied it is not open to me to make a restraining order under s 16(1)(d), however convenient that might be, at least from the applicant's point of view.
56. Mr Oshlack, on behalf of the applicant, contended that Johns is not an authority standing in his way. He emphasised the factual differences between the two cases. Indeed, they are factually different. There were probably also other circumstances in Johns, other than lack of power, which militated against a s 16(1)(d) order. However, it seems to me the language used in the judgments admits of little doubt about the Court's lack of power in the present case; with perhaps the exception of the judgment of Gaudron J. Her Honour took a somewhat wider view of the scope of the paragraph, which arguably might cover the present case. However, if her view differed from that of the other members of the Court, it was a minority view.
57. It is sufficient for me to refer to some passages in the judgment of Brennan J, the presiding judge. At 433, his Honour said:
The relief which may be ordered under s 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an unchartered course without legal reference points by which to steer.
His Honour then referred to the decision of the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637, at 644-645, which had been argued by counsel for Mr Johns to interpret s 16(l)(d) in a manner sufficiently wide to permit the grant of relief to his client. That argument is similar to the view which I formed when I decided to make the orders. However, Brennan J thought Park Oh Ho did not assist Mr Johns. At 434, his Honour said:
However, s 16(1)(d) applies only when the making of an order is ‘necessary to do justice between the parties’. That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an enforceable obligation of confidence.
His Honour then pointed out that, in the case before the Court, that was not the factual situation. He said:
If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(l)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act.
58. The other members of the Court, with the possible exception of Gaudron J, expressed views consonant with this.
59. The interpretation given to s 16(1)(d) in Johns severely restricts its scope. It seems to result in a situation that the paragraph can be used against a person (other than the decision maker himself or herself) who is affected by an impugned statutory decision only if the applicant in the ADJR Act proceeding already had some other cause of action against that person. If that is right, s 16(1)(d) adds little to rights which are already held.
60. However this may be, I am bound by Johns. I think it leads to the conclusion that, contrary to my first impression, I do not have power to make an order under that paragraph in the present case. Accordingly, I propose to revoke order 5 made by me this morning.
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