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Hancock, Nathan --- "Crocodile Farm: Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia" [1996] AboriginalLawB 47; (1996) 3(82) Aboriginal Law Bulletin 12


Crocodile Farm: Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia

Full Federal Court

Black CJ, Burchett and Kiefel JJ

Unreported

28 May 1996

Casenote by Nathan Hancock

On 6 April 1994 the Minister for Aboriginal and Torres Strait Islander Affairs ('the Minister') made a declaration for a period of 5 years over a site for a proposed crocodile farm near Broome, Western Australia. The claim had been lodged under s10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Act') by members of the local Yaruwu Aboriginal community. Among other things, the area in the claim contains an initiates' track linking two ceremonial grounds that involve secret men's business.

Successful challenges were lodged in the Federal Court by the Western Australian Government and by Mr. and Mrs Douglas, the crocodile farm developers. Justice Carr on 7 February 1995 delivered a judgment finding that the decision making process failed to comply with the requirements of procedural fairness, and that in making his decision the Minister had not 'considered' the representations attached to the report on the matter created pursuant to s10(1)(c) of the Act.

On appeal, the Full Bench of the Federal Court agreed in substance with Justice Carr's findings. The Court held that the duty to afford procedural fairness requires a Minister to give parties 'a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests' including 'proper notice of the case they have to meet' (page 24). In the circumstances, this required that the Minister disclose relevant details of the secret men's business to the respondents, Mr and Mrs Douglas and the Western Australian Government.

In addition, the Court held that the representations attached to the s10(4) report required the Minister's personal consideration. Evidence suggested that the representations, received with the s10(4) report on Good Friday 1994 (that year falling on 1 April), had not been received by the Minister until 5 April 1994, the day before the declaration was made. In the circumstances, the Court held that the Minister had failed to adequately consider the representations, a statutory precondition to the exercise of the his power to make a permanent declaration.

Natural justice or procedural fairness

The outcome in relation to the representations may not be altogether surprising, considering the approach taken by the Court in Norvill & Miles v Chapman & Ors, Tickner v Chapman & Ors ((1995) [1995] FCAFC 1726; 133 ALR 226 at 237-8, 253 and 268), and Tickner v Bropho ((1993) [1993] FCA 208; 114 ALR 409). However, the Court's view of the requirements of procedural fairness may raise concerns for the future operation of the Act. It suggests that the decision making process established under the Act may not be able to maintain the confidentiality of traditional secrets. For this reason, it is important to understand why the Court arrived at its conclusion in relation to procedural fairness.

In part, the Court's view was based on their Honours' understanding of the purpose of the consultation process established under the Act. Before making a permanent declaration, the Minister must appoint a reporter, who is required to give public notification of the claim, seeking representations from any interested parties (see sl0(1)(c)). In Tickner v Bropho Black CJ commented that this process was intended to provide members of the public with 'an effective opportunity to provide information and express opinion concerning the important issues involved' (at 194). This formulation left open the question of whether the Act had displaced the obligation to accord procedural fairness.

In considering this issue O'Loughlin J held in Chapman v Tickner that procedural fairness did not require disclosure of confidential information to persons who might be affected by the Minister's decision:

'It was for the legislature to decide, as a matter of social justice, whether there should be legislation that preserves and protects areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition. But it was also for the legislature to resolve how that preservation and protection would be implemented' ((1995) 133 ALR 74 at 90).

In His Honour's view, the Commonwealth Parliament had addressed the procedural fairness issue by making provision for public notification and consultation in the reporting process. In the circumstances, the duty to accord procedural fairness did not involve a duty to disclose confidential information.

Public consultation

The Full Bench adopted the view that the public consultation process offered 'no substitute for what natural justice would require to be given to those who might be directly affected by a declaration' (page 23). In the opinion of the Court the provisions were designed to ensure wide public involvement and to elicit the fullest extent of community knowledge. By contrast, the aim of procedural fairness is to 'focus on those particular individuals whose interests or legitimate expectations may be affected by the making of a declaration' (page 23).

In this respect, it was significant that the Act explicitly requires the report to canvass (and the Minister to consider) the detrimental effect of a declaration on other interests (ss10(4)(e) and (g)). This was implicit recognition of the importance of these considerations in the overall statutory scheme and inevitably of the need to ensure procedural fairness in the circumstances. The Court concluded that:

'to afford [directly affected parties] the opportunity to contradict or comment upon issues raised which have the potential to influence the Minister's decision is consistent with and not at odds with the reporting and decision making process envisaged by the statute' (emphasis added, page 25).

This statement is significant because it raises a question as to the relevance of the public consultation in assessing the content of procedural fairness. Clearly the statutory process does not displace the common law obligation to afford procedural fairness, but can it be used to indicate the value placed on information gathering in the decision making process?

In this respect note the conclusion of justice Carr in the initial case that 'the procedure prescribed by the Commonwealth Act is intended to ensure ... that the Commonwealth Minister is provided with comprehensive information on both sides before a declaration is made', and that 'for that intention to be fulfilled the material on each side should be disclosed to the other side' (at 88). On such a view, it is easy to see that disclosure to persons directly affected is consistent with the public consultation process. Otherwise the issue might not be open to challenge, with the result that the Minister might not receive 'comprehensive information'.

In assessing the content of procedural fairness, it may be important to distinguish considerations based on efficient administrative decision making and those based on detriment to individuals. While the information gathering role of the reporter might be significant, it is arguable whether it should affect the implication of a duty to disclose confidential information. Clearly, persons who may directly be affected should be given the right to challenge the information before the Minister. But is that because a declaration would cause them detriment, or because given the opportunity, they might improve the quality of information before the Minister?

Limitations?

While the decision may seem to pose a threat to the confidentiality of secret or sensitive traditional information, it is important to note that disclosure will not be required in all cases. The content of natural justice, or the particular requirements of procedural fairness, will vary according to the circumstances of each particular case (Salemi v MacKellar [No. 2] [1977] HCA 26; (1977) 137 CLR 396; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J (as he then was) at 585; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 per Deane J at 652). In this respect there are some limitations in the facts of the case which tend to confine the implications of the Full Bench decision.

The first limitation relates to the fact that the reporter had made an undertaking that created a legitimate expectation that he would reveal further information to Mr and Mrs Douglas as it arose. Clearly, this sort of undertaking provides a strong foundation for requiring disclosure of material subsequently received (Annetts v McCann (1990) 170 CLR 596 at 599; South Australia v O'Shea (1987) 163 CLR 378 at 387).

The second limitation is that there were allegations in parts of. the relevant material that were personal to the State and Mr and Mrs Douglas. In previous cases, this consideration has been central to the implication of a duty to afford procedural fairness and to disclose information (FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; South Australia v O'Shea). It is reflected in the Court's comment that the duty to disclose will not extend to every 'interested' person, but only to those who are directly and immediately affected (pages 25-26).

The third limitation is the Court's view that, notwithstanding the secretive nature of the traditional material, the respondents could have been expected to have information that could affect the decision of the Minister. In relation to at least part of the secret men's business, the Court envisaged that the respondents could have 'consulted anthropologists and more importantly other aboriginal persons' in order to address the adverse material (page 31).

Perhaps the most important limitation is that, in relation to claims of confidentiality, the Court considered the relevant report to be 'expressed in careful terms so as not to reveal any more than is necessary to convey the importance of the myth' (page 34). Moreover, the Court was convinced that the reporter could have devised a solution to the problem, either with the consent of the parties, or by imposing strict conditions on the use of confidential information (pages 35-36).

Conclusion

In the future it may still be open to the reporter or the Minister to conclude that confidential information should be withheld from persons who may be directly affected by a decision. In part, this possibility reflects a view that 'in some circumstances the content of [procedural fairness] may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred' (Kioa v West per Brennan J (as he then was) at 615, also Deane J at 633). But, essentially it depends on the weight which the Minister has placed on the traditional information in reaching his or her decision, and the ability of the reporter or the Minister to convey the meaning or substance of the traditional information without betraying the confidence of the Aboriginal claimants.

Until amendments are introduced to correct the problem raised in these cases, the solution depends on the particular procedure adopted. The key might be to seek the agreement of parties to the handling of information at the reporting stage, as suggested in the Court's decision, thereby minimising the possibility of a challenge on grounds of access to relevant information and procedural fairness.


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