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Federal Court of Australia, Full Court
Black CJ, Buchett and Keifel JJ
Unreported, 7 December 1995
Appeal SG 13-15 of 1995
Casenote by Ernst Wilheim[1]
The decision of the Full Federal Court in this case has important implications for the making of applications for declarations under ss9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Act') and the processing of those applications. In particular, it is now clear that, in construing the procedural requirements of the Act, courts will give substantial weight not only to the purposes of the Act (the preservation and protection of areas and objects that are of particular significance to Aborigines - s4), but also to protection of property and other interests that would be adversely affected by the making of a declaration under the Act. Applications for declarations will need to be prepared with care, preferably with the benefit of expert legal advice, as will the notice required to be published by the person nominated to prepare a report pursuant to s10 of the Act.
The Hindmarsh Bridge controversy arose out of proposals to build a marina complex on Hindmarsh (Kumarangk) Island, to subdivide and sell allotments on the island, and to improve access to it by the building of a bridge between the island and the mainland (replacing an existing cable-drawn ferry).
On 23 December 1993, the Aboriginal Legal Rights Movement Inc ('the ALRM') wrote to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs asking him to consider the use of his powers under s10 of the Act to protect certain Aboriginal sites, should the South Australian State Minister for Aboriginal Affairs fail to enforce State protection laws or fail to exercise his powers. The 'application' related primarily to two archaeological sites which might have been affected by the proposed bridge.
On 6 April 1994, the State Minister informed the Commonwealth Minister that the bridge would proceed.
On 7 April, the ALRM asked the (Commonwealth) Minister to take action under the Act. The ALRM wrote again on 12 and 20 April. The 20 April letter advised that its clients had reluctantly divulged some 'secret/sacred information ... in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition'. This information went well beyond the archaeological sites referred to in the letter of 23 December 1993.
The configuration of certain features was said to bear a specific set of cultural meanings to the Ngarrindjeri people concerning the creation and renewal of life. The channel between the island and the mainland was said to be of crucial importance. A physical link created by the bridge would be profoundly disruptive. A subsequent letter, received in the Minister's office on 9 May, entitled 'Women's Business' and signed by eleven women, advised that the 'site' was very sacred to Ngarrindjeri women.
On 3 May 1994, acting under s23 of the Aboriginal Heritage Act 1988 (SA), the Minister for Aboriginal Affairs issued an authorisation to the Department of Road Transport 'to damage, disturb and interfere with any Aboriginal sites and objects within the confines of the Bridge construction'. In a statement to the South Australian Parliament on the same day, the Minister said:
'I recognise that Aboriginal sites will be damaged by the construction and that this fact causes great distress to the Aboriginal community. It is clear that it is not practicable both for the sites in the proposed bridge alignment to be protected and preserved and for the bridge to be constructed' (Parliamentary Debates (Hansard), House of Assembly, 3 May 1994, page 949).
On 12 May the (Commonwealth) Minister made an 'emergency' declaration, under s9 of the Act, prohibiting works which might be associated with the construction of a bridge being carried out without his consent. The s9 procedure, which has been compared to an interlocutory injunction (see Re Wamba Wamba Land Council, (1989) 86 ALR 161 at 170), does not require the preparation of a report. That emergency declaration was subsequently extended, for the maximum allowable period, to 10 July 1994. Professor Cheryl Saunders was nominated to prepare a report under s10 of the Act. The nomination recited the letter of 23 December 1993. It referred to 'a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island'. Statutory notices subsequently published by Professor Saunders, inviting interested persons to make representations, substantially repeated this description of the area.
Professor Saunders received over 400 representations. An advance copy of her report ('the Saunders Report') was faxed to the Minister on 7 July 1994. The full report, together with the representations to Professor Saunders, was delivered on 8 July 1994,2 days before the expiry of the s9 emergency declaration.
The Saunders Report dealt extensively with cultural beliefs conveyed orally to Professor Saunders by Ngarrindjeri women. These matters had not been identified in the statutory notice published by Professor Saunders. An account of the cultural significance of the area was also set out in a report by an anthropologist commissioned by the ALRM, Dr Deane Fergie, which was part of the ALRM representation to Professor Saunders. Two attachments to Dr Fergie's report were sealed and marked not to be read by men. Professor Saunders reported to the Minister that it was open to him to conclude that the area has particular significance for Aboriginal people within the meaning of the Act without reading these attachments.
On 10 July 1994, the Minister made a declaration under s10 of the Act preventing construction of the bridge.
The Saunders Report and the Minister's declaration were challenged in the Federal Court, under the Administrative Decisions (Judicial Review) Act 1977 (Cth), on numerous grounds ('it was suggested that there were in excess of 150 complaints about the way in which Professor Saunders and the Minister had performed or failed to perform their respective duties under the Act'; see Chapman v Tickner (1995) 55 FCR 316 at 338). O'Loughlin J rejected the overwhelming majority of the complaints, in terms unusually critical of the applicants (at 344), but ordered that the Saunders Report and the Minister's declaration be quashed on two key grounds: first, that the notice Professor Saunders was required to publish was deficient, and second, that the Minister's handling of the representations attached to the report did not constitute 'consideration' under the Act.
The Minister appealed to the Full Court. The main proponents of the bridge, the Chapmans, contended that O'Loughlin J's orders should be upheld on grounds on which he had found against them, viz, that they had been denied procedural fairness. In this respect they relied on the earlier, inconsistent, decision of Carr J in the Broome Crocodile Farm Case (WA v Minister for Aboriginal and Torres. Strait Islander Affairs (1995) 37 ALD 633), that procedural fairness applies to the s10 reporting procedure.
The appeal was dismissed, the Court substantially upholding O'Loughlin J.[2] Each member of the Court wrote a separate judgment. On some important points of detail it is not easy to discern a majority for any particular view. The Court did not deal with the procedural fairness issue, so the conflict between the decisions of Carr J and O'Loughlin J remains unresolved.
This question is important in light of the decision of the Full Court in Tickner v Bropho ((1993) [1993] FCA 208; 114 ALR 409) that, on receipt of a valid application, the Minister must nominate a person to report to him pursuant to s10 of the Act (unless the application is frivolous or vexatious, in which case it seems it would not be a valid application).
Also, an application is the source, and presumably the only source, for the notice required to be published by the person nominated by the Minister to prepare a s10 report. As explained below, the Court requires the notice to include a high level of information. It appears to be a necessary consequence that the application must provide a corresponding level of information, this notwithstanding that an application may be made 'orally or in writing' (s10).
Some of the practical difficulties that can arise are well illustrated by the facts of this case. As described above, the Minister had received a series of letters, progressively providing additional information, enlarging the basis upon which protection was sought. Black CJ said the events were open to the interpretation that one of the subsequent letters amounted to an entirely new application which should have been dealt with separately and a reporter appointed (page 15). Kiefel J similarly considered that (subject to clarification with the Ngarrindjeri women) the raising of wider cultural beliefs in subsequent letters of 20 April and 12 May constituted a further application, and it would have been necessary to commence the process with respect to the later application afresh (page 23). The same reporter could have been nominated, but separate public notification would have been required, and possibly also a separate report.
Where different applicants make applications in relation to the same area, the same result would seem to follow.
Burchett J was critical of the view apparently taken by the Minister, that the letter of 23 December 1993 (in the form 'I ask that you consider making declarations ... should the State Minister ... fail to enforce') did not require a report. In his view, the Minister should have nominated a reporter promptly after receipt of this letter. One of the matters the reporter would have been required to deal with would have been the adequacy of the State procedures (pages 16, 17). If this view be correct, the kind of letter which in the past has been construed as merely foreshadowing the likelihood of an application, should certain events occur, must be treated as an application triggering the requirement to nominate a person to prepare a report. Kiefel J, on the other hand, appears to accept that the letter of 23 December did not provide sufficient detail to amount to an application (page 9). Black CJ did not deal with the point. It is therefore unresolved. Kiefel J's view seems preferable. The practical answer may be for the Minister to seek clarification from applicants.
The Act does not, in terms, require that an application include any particular matter - s10 refers to an application seeking the preservation or protection of a specified area from injury or desecration. As noted above, the application may be made orally or in writing. It is now clear from the judgments that, to avoid dispute and possible invalidity, it is desirable that an application:
(i) identify the 'specified area' in respect of which protection is sought with as much precision as possible;
(ii) identify the Aboriginal tradition said to be under threat;
(iii) identify the nature of the activity constituting the threat.
The three members of the Court did not each deal with all these points.
Black CJ held that there must be some reasonable identification of the area. This does not mean that an application must describe the area with the degree of detail one would expect in a declaration (page 10). While agreeing with the submissions on behalf of the Minister that the fact an application may be made orally points to the conclusion that an application need not involve any great degree of formality, it has to be for 'a specified area', which has its ordinary meaning. Grid references are not expected, but there must be a reasonable identification of the area and its outer boundaries. Generalities will not suffice (pages 11, 12). It is to be expected that an application for protection will indicate very clearly the nature of the activity constituting the threat against which the protection of a declaration is sought (page 16). The validity of an application that does not do so is in doubt (page 17). He did not find it necessary to determine whether applicants need to reveal anything about the traditions and beliefs affected by the activities against which protection is sought (page 18).
Burchett J did not deal separately with the requirements for an application.
Kiefel J said an application must identify the tradition, belief, custom or observance said to be associated with the land or water, those who hold them or to whom the maintenance of them is important, and an explanation of how it is apprehended they would be impacted upon. The area must be 'specified' (pages 18-19). The reporter is not to be nominated until after an application containing the descriptions and explanations required by s10 is received (page 20). This view (which was not further developed in the, judgment) would have important implications for the processing of s10 applications by the Minister. Whereas the Full Court's decision in Tickner v Bropho suggests that on receipt of an application the Minister must (except for rare cases where an application is not bona fide or is made frivolously or vexatiously) always nominate a person to prepare a s10 report (Tickner v Bropho at 234), it may now be necessary for the Minister first to determine whether an application is a valid application. Central to that determination will be the question whether it contains the matters s10 is said to require. Bearing in mind that Black CJ and Kiefel J expressed different views on what is required to constitute a good application, and that Burchett J did not address the matter at all, the judgments create uncertainty which may well lead to further litigation.
O'Loughlin J held that the notice was deficient because the description of the area ('significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island') was too vague, and because the notice did not address what was said to be the likely threat of injury or desecration which, he found, emerged only after Professor Saunders met with the women. Although Professor Saunders had explained the 'women's business' to the Chapmans and others, the public had not been made aware of it by published notice.
On appeal, it was submitted on behalf of the Minister:
The Full Court agreed substantially with O'Loughlin J. All three judges held that the notice published by Professor Saunders was defective, because it did not sufficiently identify the area for which protection was sought.
Black CJ held that the description of the area was 'far too general' (page 14). It did not give any reasonable identification of the area to be dealt with in the report (page 15).
Burchett J held that neither Professor Saunder's nomination, nor the statutory notices published by her, contained any reference to a 'specified area' (page 31). 'Specified' requires precision (page 32). Emphasising the far-reaching effect a declaration may have on third parties, he said it is entirely probable that Parliament demands a precise claim which can be adequately investigated and debated (page 33).
Kiefel J referred more generally to the need for identification of, and description of, the land or waters making up an area (pages 19, 21). The requirement that an area be 'specified' at least requires that those receiving and commenting upon an application are able to understand what are the lands and waters to which they are referred (page 19). The reference in the notice to areas in the vicinity of Goolwa and Hindmarsh was not a sufficient nor an accurate identification (page 22).
Differing views were expressed concerning the content of the requirement that notices state the purpose of an application. No member of the Court accepted the submission made on behalf of the Minister, that the statement the application sought a declaration under the Act protecting the specified area from injury or desecration was sufficient. The following five matters were identified (although no member of the Court specifically required all five matters to be included in the notice):
(i) the activity constituting the threat, against which protection is sought;
(ii) the reasons why such activity is regarded as constituting injury or desecration, i.e. the tradition, custom or observance said to be associated with the land or waters, or how the anticipated harm would occur;
(iii) the identity of the persons making the application;
(iv) the protection required;
(v) the matters required to be dealt with in the report.
Burchett J put the obligation at its highest. He appears to hold that the notice must cover matters (i), (ii), (iv) and (v). He said the requirement that the notice should state 'the purpose of the application' refers to the nature of the threat apprehended and the protection required. The particular significance of the area would be expected to be capable of some clear statement so as to show how the anticipated harm could occur and how it should be prevented (pages 33-34).
Further, the notice is to state 'the matters required to be dealt with in the report' (s10(3)(a)(i)). It is not enough to identify matters in the language of the Act. When the Act requires the notice to state these matters, it refers to the particular issues raised by the application under them. It is necessary that the notice inform persons about the questions raised in the particular case in respect of the various statutory issues (page 35). This interpretation appears to require the person nominated to prepare the s10 report to undertake a substantive evaluation process prior to publication of the notice (a priori, prior to receipt of submissions).
Consistent with her view as to the requirements for a valid application, Kiefel J required matters (i), (ii) and (iii) (and possibly (iv)) to be dealt with (pages 21, 22). Black CJ took a much less onerous view of the notice requirements. He held that it is necessary to state, at least, matter (i) (page 17).
Black CJ did not find it necessary to determine whether the statement of purpose need reveal anything about the traditions and beliefs affected by the activities against which protection is sought (matter (ii)). He noted that in considering this matter, one would need to be particularly mindful of the policy of the Act with respect to preservation, and the danger of offending traditions of Aboriginal people by disclosing beliefs of a particular character to the world at large, balanced against the policy of the Act with respect to the reporting process (page 18). He did not think it necessary that the notice state by whom the application is made (matter (iii) - page 19), and he did not deal with matters (iv) and (v).
Two other points were made. In relation to the Aboriginal tradition sought to be protected (matter (ii)), Burchett J held that, as Professor Saunders was nominated only in respect of the 23 December 1993 application, she was not authorised to report on matters raised in the later letters, including the 'women's business' (page 30). Section 10 revolves around a particular application received by the Minister in respect of 'a specified area' (page 31).
Burchett f said that when the 'women's business' was raised, the Minister was required to deal with a fresh application under s10(1). The grounds were different from those put forward in the application of 23 December 1993, as was the area. A new nomination under s10(1)(c) and a new notice under s10(3) were required. It was not sufficient that Professor Saunders provided information individually to the respondents (pages 35-36). This view gives rise to real practical difficulties in circumstances where knowledge of the relevant Aboriginal traditions is confined to a small group of elders and, consistent with Aboriginal reluctance to disclose that knowledge, relevant information is disclosed progressively.
Kiefel J said deficiencies in the notice could not be cured by making documents available for inspection or by informing the Chapmans and others, since one could not know what further representations might have been received if the public had been properly advised (page 23).
Again, the difference of view gives rise to uncertainty. It may be expected that a cautious and prudent s10 reporter will seek to include in the s10 notice at least matters (i) - (iv). Matter (v), referred to only by Burchett J, is more problematic. To the extent that the Aboriginal tradition sought to be protected is culturally sensitive, the applicants clearly face a dilemma: failure to disclose at least some information about the tradition may put the application and the notice at risk.
O'Loughlin J held that the Minister's handling of the representations attached to the Saunders Report did not constitute consideration of the representations as required by s10. It had not been suggested that the Minister had considered the representations in the sense of reading them. Rather, it had been claimed that the statutory responsibility was discharged by a combination of reading the Saunders Report, which reflected the representations, and discussing the representations and obtaining advice from a member of his staff who had read them. O'Loughlin held that 'consider' requires a higher level of personal involvement. He also found, on the basis of the evidence of the Minister's adviser, that 'the extent and description of that discussion was vague and nebulous'. O'Loughlin J referred also to a misconception in a brief to the Minister from ATSIC which advised that the representations had to be 'received and acknowledged'.
On appeal, it was submitted on behalf of the Minister that the obligation to consider the representations required the Minister to turn his mind to the issues raised in the representations. The Saunders Report evaluated and analysed the representations. In these circumstances, the Act did not require that the Minister physically examine each representation. Further, the Minister was entitled to rely on assistance from his staff. Reliance was placed on the evidence that a member of the Minister's staff had read the representations and discussed them with him. Further, it was submitted that the context of the obligation to consider the representations is to be determined having regard to the factual circumstances, in particular the tight timetable within which the Minister had to make his decision. The Minister received the representations on 8 July. Interim protection expired on 10 July. O'Loughlin J had found that the Minister would have been derelict in his duty if he had allowed a gap between the expiry of the interim declaration and his decision (at 333).
All 3 members of the Court found that O'Loughlin J was correct in holding that the obligation to consider the representations had not been fulfilled.
Black CJ noted that because the powers and functions of the Minister under s10 are specifically excluded from the power of delegation, the Minister must personally consider the representations (page 20).
It is the explicit requirement that the Minister consider the representations that removes the process from the general rule that a Minister is not expected to do everything personally (page 21). The Act requires a substantial and non-delegable personal Ministerial involvement.
Some staff assistance could be provided, eg sorting representations into categories, and summarising technical supporting material such as legal and financial documents. But in some cases nothing short of personal reading of a representation will constitute a proper consideration of it (page 26). The obligation is personally to consider each representation (pages 22, 25). An element in his Honour's reasoning was the capability of affecting very seriously the interests of third parties. The obligation cannot be read down because of urgency (page 22).
Burchett J's judgment relied on the evidence (pages 18-21). It is not open to Ministers to hand over to their advisers the responsibility to consider representations (page 22). Ministers may receive the assistance of their staff, but ultimately Ministers must apply their own minds to the issues raised. Although they can be assisted in ascertaining the facts, ultimately they themselves must ascertain them; Ministers cannot simply rely on an assessment of their work by others (page 23). Like Black CJ, Burchett J relied heavily on the fact that the decision may adversely affect other interests. He described the power as 'vast' and 'special', and referred to the 'severe consequences of its application'. These factors supported the view that consideration of the representations must be at the highest level, and cannot be replaced by the evaluation of an assistant (page 25). If this imposes a heavy burden on a Minister, it is one imposed by Parliament (page 24).
Kiefel J also held that the obligation is personal to the Minister. She was the only member of the Court to refer to the importance of the decision to the Aboriginal applicants as well as to other persons (page 24). Kiefel J held that O'Loughlin J's
findings on the evidence had to stand. In relation to the meaning of 'consider', she held that a summary of the representations cannot suffice, for the Minister would not then be considering the representations, but someone else's view of them.
The consequences for administration of the Act are clear: Ministers must personally consider each representation, although they may be assisted in relation to, for example, sorting representations into categories and in obtaining summaries of technical supporting material. In future, it will be essential that the person nominated by the Minister to prepare a s10 report furnish that report to the Minister in sufficient time to enable the Minister to comply with this obligation.
The so-called 'secret envelopes' have attracted much attention. They were two confidential appendices to the report of an anthropologist (Dr Deane Fergie) attached to a supplementary submission from the ALRM. These appendices were placed in sealed envelopes bearing the notation that the contents should not be read by men.
Professor Saunders in her report emphasised that the appendices should be read by women only (Saunders Report, page 35).
It was not in dispute that the Minister, being a man, had not read them. Professor Saunders had reported to the Minister that it was open to him to conclude that the area has particular significance for Aboriginal people within the meaning of the Act, even without reading the confidential appendices.
The appendices had been read by the Minister's female adviser, who informed him there was 'nothing contained within [them] that did not support the information contained in the Saunders Report concerning the nature of the significance of the area to the Ngarrindjeri women'.
On behalf of the Minister, it was submitted that the provision in s10(1)(c) requiring consideration of representations by the Minister was to be construed as a provision for the benefit of the 'interested persons' who made the representations. It did not require the Minister to read representations which those who made them did not want him to read, and which were put forward on the basis that they were not to be read by him. Further, since the Saunders Report specifically said that even without the confidential appendices it was open to the Minister to conclude that the area had particular significance for Aboriginal people, and the general contents of the appendices were described in the report, the Act did not require that the Minister read them.
At a broader level, it was submitted on behalf of the Minister that, by analogy with principles relating to public interest privilege and the protection of confidential information, Australian law should recognise and respect Aboriginal cultural traditions and spiritual beliefs. The Act should not be construed as requiring the Minister to read the envelopes contrary to Aboriginal cultural tradition and belief, absent clear and unambiguous indication that this was required. Reference was made to Foster v Mountford ((1976) 29 FLR 233), Aboriginal Sacred Sites Protection Authority v Maurice & Ors ((1986) 65 ALR 247), and Jacobsen v Rogers ((1995) [1995] HCA 6; 182 CLR 572).
Reference was also made to the statutory protection afforded to religious confessions (Evidence Act 1995 (Cth), s127). It was submitted that Aboriginal cultural and spiritual beliefs should be treated no less favourably than mainstream beliefs.
Finally, reference was made to the provisions of the International Convention on Civil and Political Rights, to which Australia is a party. Article 27 provides that persons belonging to ethnic minorities should not be denied the right to enjoy their own cultures. It was submitted that 'international law is a legitimate and important influence on the development of the common law' (see Mabo v Queensland [No. 2][1992] HCA 23; , (1992) 175 CLR 1 at 42). In reliance on the High Court's recent decision in Minister for Immigration and Ethnic Affairs v Teoh ((1995) [1995] HCA 20; 183 CLR 273), it was submitted that the Aboriginal applicants were entitled to a legitimate expectation that, in processing their application, the Minister would not act contrary to the requirements of this Convention.
On behalf of the Aboriginal applicants, it was submitted that Professor Saunders was subject to an equitable obligation not to impart the material to men, and that the material was not a representation.
Black CJ held that the obligation imposed on the Minister to consider any representations attached to a report is not subject to any implied exception. The submission that the confidential appendices were not representations was rejected (pages 28-29).
Burchett J at one point in his judgment said a representation is either made or not made. If it is made, the making of it involves a disclosure of the matters put forward (page 26). Later in his judgment, he indicated there is some doubt whether those who applied to the Minister on the basis of the 'women's business' were in fact willing to put before him the basis of their application (page 28). If Aborigines wish to avail themselves of legal remedies, they must do so on the law's terms: 'To take away the rights of other persons on the basis of a claim that could not be revealed to the maker of the decision himself would be to set those rights at nought in a way not even the Inquisition ever attempted' (pages 27-28). Burchett J noted that the Minister could have sought the appointment of a female Minister to act on his behalf (page 29), a course subsequently followed in relation to a fresh application made on 19 December 1995.
Kiefel J considered the real question was whether the material was a representation or formed part of one. If it did, the Minister must have a full appreciation of what was contained in it. There was nothing which detracted from a conclusion that the material was a representation (page 31).
No member of the Court addressed the arguments based on the protection afforded to religious confessions and the Convention. In an accompanying explanatory statement the Court made it clear, however, that the case did not turn on the secret envelopes point.
The effect of the Court's decision is to impose onerous burdens on those involved at each stage of the process; on applicants in relation to the matters to be included in applications for protection, on reporters in the preparation of the notice, and on the Minister in relation to consideration of the report and the representations. The Court's construction of the legislation is influenced, in large part, by the effect the making of a declaration may have on persons other than the applicants. Whether the Act as so construed strikes the right balance between protection of Aboriginal culture and heritage and the interests of other persons will no doubt be considered by Elizabeth Evatt in her review of the Act (currently being conducted).
Because there is no clear majority on a number of important points, and the conflict between Carr J in the Broome Crocodile Farm Case and O'Loughlin J on the application of requirements of procedural fairness to the s10 reporter also remains unresolved, those involved with administration of the Act face considerable uncertainty.
[1] This casenote is submitted in a personal capacity. It does not purport to reflect the views of the Commonwealth Attorney-General’s Department or of the Commonwealth Government.
[2] ED’s Note:
Unless otherwise indicated in the text, the page numbers given refer to those in the transcripts of their Honours’ judgments.
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