Nettheim, Garth --- "R v Martin and Ors; Ex parte Aboriginal Sacred Sites Protection Authority and Anor (Administrative law - natural justice - mandamus - Aboriginal Sacred Sites Review Committee)" [1987] AboriginalLawB 50; (1987) 1(28) Aboriginal Law Bulletin 10

• R V Martin And Ors; Ex Parte Aboriginal Sacred Sites Protection Authority And Anor
• Administrative Law-Natural Justice – Mandamus-Aboriginal Sacred Sites Review Committee

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R v Martin and Ors; Ex parte Aboriginal Sacred Sites Protection Authority and Anor

Administrative law - natural justice – mandamus - Aboriginal Sacred Sites Review Committee

R v Martin and ors; Ex parte Aboriginal Sacred Sites Protection Authority and anor

Supreme Court of the Northern. Territory: Nader J.

25 September 1987

Casenote by Garth Nettheim

In 1986 the Chief Minister of the Northern Territory appointed the Solicitor-General, Martin, and two others to constitute the Aboriginal Sacred Sites Review Committee to inquire, report and recommend in relation to laws for the protection of sacred and significant. sites. A speech by the Chief Minister to the Legislative Assembly on 27 August 1986 made it clear that the inquiry was also concerned with the propriety of actions of the Aboriginal Sacred Sites Protection Authority and of the Director, Bob Ellis.

In correspondence with the Director on 10 September and again on 22 September 1986, Martin assured the Director that he or the Authority would be given notice and an opportunity to respond should any issue arise reflecting adversely on them. The Director sought access to certain critical submissions put to the Committee or at least to be provided with the substance of them in sufficient detail to enable them to be addressed. They were not provided. The Director and the Authority sought a writ of mandamus to compel the Committee members to disclose such material and to consider any submissions by the plaintiffs prior to publication of any report or draft report by the Committee.

Nader J rejected the application. He held that the primary function of the Committee was to inquire, report and make recommendations about possible legislative changes, and that this was not a function which could adversely affect any interests of the applicants such as to require observance of the rules of natural justice. He acknowledged that the inquiry was also concerned with the propriety of the conduct of the Director and the Authority, but that the Committee's report would not itself affect their interests. He assumed that the report would not be published other than to the Chief Minister or to someone on his behalf, and added that there was no evidence that the Chief Minister would publish the report. He went on:

Even if there were evidence that adverse findings would be published to the Parliament, I know of no authority that the mere possibility of such publication would import the rules of natural justice into the conduct of the inquiry preceding it.

And he added that if the Chief Minister published adverse material outside of Parliament he would run the risk of an action in defamation.

Nader J's conclusion was the the Committee was not subject to the rules of natural justice (procedural fairness) at all. However, he added that if they did have application to the case he would have found that they were not observed to the extent called for.

... they ought to have been given sufficient information to identify the occasions of alleged wrong-doing so that, having been afforded the opportunity to refute the allegations, they might have a fair chance to protect their reputations from damage.

However, the nature of the Committee was such that it was "entitled to be unfair, in that sense".