Anderson v Minister for the Environment, Heritage and the Arts

Federal Court of Australia|2010-02-10|Before: Advocacy Network J, Foster J

The Application be dismissed.
The applicants pay the respondent's costs of and incidental to the Application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

GENERAL DIVISION NSD 1701 of 2008

Introduction 1 The applicants are siblings. They are indigenous Australians who are Senior Elders of the Numbahjing Clan within the Bundjalung Nation. 2 For some years, they have opposed any residential development in an area on the North Coast of NSW known as North Angels Beach. Angels Beach is situated between Black Head and Angels Flat Rock near East Ballina. North Angels Beach is that part of Angels Beach which is closest to Angels Flat Rock. 3 Approximately 650 metres due west of Angels Flat Rock is a 10.52 hectare parcel of land known as Lot 208 in Deposited Plan 851318 (Lot 208). 4 Lot 208 is owned by North Angels Beach Development (Ballina) Pty Limited (the developer). 5 The developer wishes to develop Lot 208 for residential use. The proposed development comprises 67 housing lots, some cluster housing and associated works. 6 The applicants have consistently and persistently opposed the development of Lot 208. They have attempted to do so in a number of ways including by bringing several actions in the Land and Environment Court of NSW and at least one proceeding in the NSW Court of Appeal in an endeavour to overturn various Development Approvals granted in respect of Lot 208 by the NSW Government. 7 On 16 June 2008, the applicants lodged with the respondent (the Minister) claims under s 9 and s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) in which they sought an emergency declaration and a permanent declaration protecting Lot 208 from desecration. Although the applicants did not specify the precise terms of the declarations which they requested the Minister to make, it is a fair inference from the terms of their letter of claim that they wished the Minister to prohibit all development on Lot 208 on the grounds that Lot 208 is an area of particular significance to Indigenous Australians in accordance with their tradition and is under threat of injury or desecration. 8 In their letter of claim, the applicants advanced two bases upon which they contended that Lot 208 was of particular significance to Indigenous Australians and thus should be protected by declarations made under the Act. 9 First, they submitted that North Angels Beach was where a recorded massacre of Bundjalung people took place in the nineteenth century, probably in 1854 or 1855 (the massacre). When referring to the massacre, the applicants said that although the first attack occurred at or around Shaws Bay, survivors from the initial attack fled to the north across land near North Angels Beach, and, along with others camped in that area, were hunted down and slaughtered there. Shaws Bay is approximately 2 km south of Lot 208. 10 Second, the applicants contended that a significant Aboriginal archaeological site was located under the land at North Angels Beach at a point deeper than subsurface testing had, up to June 2008, been carried out. 11 Mention was also made in the applicants' letter of claim of a poisoning of Bundjalung people at Angels Beach some years after the massacre. The applicants did not appear to be relying upon this poisoning incident in support of their claims for declarations under the Act. 12 The Minister declined to make either of the declarations sought by the applicants. 13 In the present proceeding, the applicants seek judicial review of the Minister's decisions pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). 14 They also rely upon s 39B(1A) of the Judiciary Act 1903 (Cth) (s 39B).

15 The applicants' seek judicial review of two decisions made by the Minister. The first decision challenged by the applicants is the decision made on 19 August 2008 by which the Minister declined to make an emergency declaration pursuant to s 9 of the Act (the s 9 decision). The second decision under challenge is that made by the Minister on 19 January 2009 by which the Minister declined to make a declaration pursuant to s 10 of the Act (the s 10 decision). The applicants seek to set aside both decisions and to have the matters remitted to the Minister for further consideration by him.

16 In their Amended Application for an Order of Review filed on 16 February 2009, the applicants rely upon the following grounds in support of the relief which they have claimed:

(a) In respect of the s 9 decision, the Minister failed to consider at all or failed to give adequate consideration to the following matters: (i) The views of the Bundjalung Elders recorded in a video made in the 1980s to the effect that Angels Beach was part of an area where the massacre occurred; (ii) The contents of Dr Weiner's second report viz the report dated May 2003. In particular, the applicants relied upon Dr Weiner's assertion that, during and/or after the massacre, local Aboriginal people fled across the land at Angels Beach and undoubtedly died there; (iii) The contents of the report dated 2000 made by Ms Inge Riebe; and (iv) The archaeological claims made by the applicants in their letter of claim dated 16 June 2008; (b) In respect of the s 9 decision, the Minister took into account irrelevant considerations when he took into account: (i) The contents of a letter dated 24 May 2007 from the Jali Local Aboriginal Land Council to the developer in which the author said that: (A) Claims to the effect that persons who had been killed by consuming poisoned flour were buried on Lot 208 were not generally supported by the Bundjalung people; and (B) Not all Aboriginal people in the Angels Beach area see Lot 208 as significant from an archaeological point of view; (ii) A report dated 27 September 2007 made by Michael Hood, an officer of the NSW Department of Conservation and Climate Change, made for the purpose of consideration being given by that department to issuing an Aboriginal Heritage Impact Permit. (c) The s 9 decision was vitiated by fraud. This allegation was based upon the applicants' assertion that the Jali Local Aboriginal Land Council letter to which I have referred in subpar (b)(i) above was not a genuine letter and had not been authorised by that Council. (d) In respect of the s 10 decision, the Minister: (i) Erred in law: … by not applying the test on the balance of probabilities to reach his finding that there was no reliable evidence that identifies the specified area as a place where Aboriginal people died as a result of a massacre; (ii) Erred in fact and law in mislocating the area where the first attack which led to the massacre occurred and in concluding that nothing pointed directly and unequivocally to Lot 208 having any connection to the massacre or its aftermath; (iii) Erred in law by failing to consider that every Aboriginal person alive or dead identified Lot 208 as being associated with the massacre and thus as being a significant Aboriginal area; and (iv) Made a manifestly unreasonable decision when he refused to make a s 10 declaration. 17 In his submissions, Mr Oshlack, who appeared for the applicants by the leave of the Court, concentrated on the proposition that, in his decision making, the Minister had applied a standard of proof which was too demanding and which required a level of satisfaction which it was impossible to meet. Mr Oshlack also paid particular attention to his contention that the s 10 decision was manifestly unreasonable. Mr Oshlack also advanced some of the s 9 grounds of challenge in support of the applicants' challenge to the s 10 decision. 18 The applicants relied upon s 5 of the ADJR Act and s 39B. 19 I am not minded to entertain the applicants' challenge to the s 9 decision for reasons which I will explain later in these Reasons. But, even if I were minded to do so, I think that some of the grounds advanced by the applicants are clearly unsustainable. 20 I will refer later in these Reasons to the Statements of Reasons provided by the Minister to the applicants in respect of both decisions under challenge in this proceeding. It is, in my judgment, plain on the face of those Statements of Reasons that the Minister did give consideration to the matters referred to in subpars (a)(i) to (iv) in par [16] above when making his decisions. It is also clear that the report of Michael Hood referred to in subpar (b)(ii) in par [16] above was relevant to the Minister's deliberations. The grounds for challenging either decision, based upon the Minister's alleged failure to take into account relevant matters and upon the allegation that he took into account Michael Hood's report when he should not have done so, must be rejected. It must also be remembered that the Minister has a very broad and perhaps unfettered discretion to determine what is relevant for the purposes of his s 10 decision (see s 10(1)(d) of the Act). 21 There is no evidence to support the fraud allegation. It too must be rejected. 22 The Minister took into account the letter dated 24 May 2007 from the Jali Local Aboriginal Land Council to the developer in making his s 9 decision but, in my view, he was entitled to do so. It contained material which was relevant to that decision. I therefore also reject the applicants' contention that, in taking that letter into account in making his s 9 decision, the Minister took into account an irrelevant consideration. There is no suggestion that he paid any regard to that letter when he made his s 10 decision. 23 This leaves two grounds advanced by the applicants which were developed more fully in submissions by Mr Oshlack and which require more detailed consideration. They are: (a) The Minister was too demanding in the level of proof required and thereby committed an error of law; and (b) The s 10 decision was manifestly unreasonable. 24 These grounds are related and will be considered together. 25 The Minister objected to the competency of the applicants' challenge to the s 9 decision. The ground of that objection was that the s 9 decision was legislative and not administrative in character with the consequence that it could not be attacked under the ADJR Act. 26 As I have already mentioned, the applicants also relied upon s 39B. That section provides a foundation for the applicants' case directed to both decisions made by the Minister. Accordingly, even if the Minister's contention were correct, the objection to competency would not bring the matter to an end. 27 The Minister ultimately pressed his contention that the decisions under challenge were legislative in character and not administrative in character not for the purposes originally advanced but rather to support his contention that, when considering the applicants' challenges, I should apply different and more stringent tests than would be the case were those decisions properly characterised as administrative in character. 28 The Minister also contended that I should reject the applicants' challenge to the s 9 decision because there would be no utility in setting aside that decision whether or not the challenge to the s 10 decision was also successful.

The Relevant Provisions of the Act 29 The Act came into force on 25 June 1984. In s 4 of the Act, the purposes of the Act are described as follows: s 4 Purposes of Act

The purposes of this Act are the preservation and protection from injury or desecration 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. 30 Sections 9(1), 10 and 11 of the Act are in the following terms: s 9 Emergency declarations in relation to areas

(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

(i) that the area is a significant Aboriginal area; and

(ii) that it is under serious and immediate threat of injury or desecration;

he or she may, by legislative instrument, make a declaration in relation to the area.

(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;

(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 or her and has considered the report and any representations attached to the report; and

(d) has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, 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 or she 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;

(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);

(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. s 11 Contents of declarations under section 9 or 10

A declaration under subsection 9(1) or 10(1) in relation to an area shall:

(a) describe the area with sufficient particulars to enable the area to be identified; and

(b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration. 31 Section 3(1) contains the definition of various expressions used in the Act which are to be applied, unless the contrary intention appears. Of present relevance are the following definitions: Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands. Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships. area includes a site. significant Aboriginal area means:

(a) an area of land in Australia or in or beneath Australian waters;

being an area of particular significance to Aboriginals in accordance with Aboriginal tradition. 32 Section 3(2) provides: (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:

(i) it is used or treated in a manner inconsistent with Aboriginal tradition;

(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or

(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or

(b) in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition;

and references in this Act to injury or desecration shall be construed accordingly. 33 Section 13 requires the Minister to consult with the appropriate Minister of the State or Territory before making any declaration under s 9 or s 10 of the Act. Under s 14 of the Act, a declaration made under s 9 or under s 10 must be published in the Gazette and in a local newspaper and comes into operation on the day after the day of its registration under the Legislative Instruments Act 2003 (Cth) or such later date as is specified in the declaration. 34 Section 16 of the Act provides as follows: s 16 Refusal to make declaration

Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision. 35 It is an offence to engage in conduct which contravenes a provision of a declaration made under s 9 or under s 10. 36 Thus, for the purposes of s 9(1)(a) and s 10(1)(a) it is the applicants for the declaration who must identify with particularity the specified area which he or she seeks to preserve or protect. The expression, specified area, is not defined in the Act. It is directed to that area which the applicant for a declaration identifies as the area the subject of that person's application. In the present case, the applicants identified the specified area in their letter of claim. It is Lot 208. 37 In s 10(1)(b), (1)(c) and (1)(d), several preconditions to the exercise of the Minister's power to make a declaration under that section are set out. The prerequisites specified in s 10(1)(b)(i) and (ii) are matters in respect of which the Minister must be satisfied. The prerequisites in s 10(1)(c) and s 10(1)(d) are not in the same category. These latter prerequisites constitute facts or circumstances which must exist before the Minister is empowered to make a declaration under s 10. 38 When the Minister is called upon to consider making an emergency declaration pursuant to s 9, he or she is not required to address the prerequisites specified in s 10(1)(c) and s 10(1)(d). Nonetheless, he or she must be satisfied that the area under consideration is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration. A declaration made under s 9 can only have effect for a period not exceeding thirty days, subject to the Minister's power to extend that period for a further period not exceeding an additional thirty days, provided that the Minister is satisfied that it is necessary to do so (see subs (2) and (3) of s 9). 39 Section 10(4) specifies a number of matters with which the report contemplated by s 10(1)(c) must deal and s 10(3) prescribes a procedure which must be followed by the reporter prior to submitting his or her report to the Minister. At the present time, there are no matters prescribed for the purposes of s 10(4)(h) of the Act. 40 In the report, the reporter must address and make appropriate observations about the topics listed in s 10(4). He or she must do so after giving due consideration to all representations furnished to him or her as a result of the publications contemplated by s 10(3). Representations is not defined for the purposes of the Act. It is, however, a word of wide import and should be construed as encompassing all submissions, statements, evidence and material furnished to the reporter pursuant to his or her requests for information made in the publications contemplated by s 10(3) of the Act.

Are the Decisions Under Review Legislative or Administrative in Character? 41 The Minister's primary submission was that both decisions are legislative in character. Two broad consequences were said to flow from that submission. First, if both decisions are legislative in character, neither of them would be amenable to review under the ADJR Act because they are not "of an administrative character" (see the definition of "decisions to which this Act applies" in s 3 of the ADJR Act). Second, if the decisions are purely legislative in character, the grounds of review which may be properly invoked are narrower than those which might be relied upon in a challenge based upon the ADJR Act. 42 The true characterisation of the decisions under challenge in the present case has to be determined by the application of ordinary principles. The mere fact that a s 9 declaration and a s 10 declaration are both to be made by legislative instrument is not determinative (see s 15AE of the Acts Interpretation Act 1901 (Cth)). 43 In Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325 at 331, the Full Court said that the essential distinction between legislative and administrative acts is that legislative acts create or formulate new rules of law having general application whereas administrative acts comprise the application of those general rules of law to particular cases. 44 Another factor often referred to in support of the proposition that a particular act is legislative rather than administrative is the circumstance that the particular act is subject to disallowance by Parliament and, in that way, is controlled by Parliament. This aspect was discussed in some detail in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 at [51]-[56]. 45 In Chapman v Luminis Pty Ltd (No 4) (2001) FCR 62 at [233]-[263] Von Doussa J gave detailed consideration to the proper characterisation of declarations made under s 9 and s 10 of the Act. At [257]-[263], Von Doussa J concluded that: (a) The interaction of State and Commonwealth protective laws in relation to significant Aboriginal areas raises sensitive and important issues of policy; (b) Declarations made under s 9 and s10 have the force of law. Contravention of the terms of such declarations constitute an indictable offence; (c) These declarations are akin to a regulation. They are subject to disallowance by either House of Parliament. The ultimate fate of a declaration is likely to be decided after consideration of political and policy matters; (d) In making a declaration under either s 9 or s 10, the Minister is exercising a delegated legislative power; he is entitled to exercise that power in accordance with Government policy. The decision is essentially political in nature; (e) The declaration determines the content of the law which is of general application to everyone; and (f) Not only must the declaration identify the area which is to be protected, but the declaration prescribes the way in which that protection is to be afforded, whether by outright prohibition of conduct as specified in the declaration or by other regulation of conduct. The content of the rule of law of general application is to be found in the declaration itself. 46 At [263], his Honour said: 263 In my opinion, the making of a declaration under ss 9 or 10 is legislative in nature. The exercise of the discretionary power involves matters of national interest and is likely to require the weighing of important matters of policy and the division of power between the Commonwealth and a State or Territory. In my opinion, to impose a private law duty upon the Minister in the exercise of that power would be to distort the public focus of the HPA in favour of individual interests of a few members of the community: cf Hayne J in Crimmins at 101 - 102 [292] - [295] cited above. 47 I agree with Von Doussa J that the making of a declaration under s 9 or s 10 is legislative in character. I also agree with the reasons which he gave in support of that conclusion. 48 The next question which arises is whether a refusal by the Minister to make a declaration under s 9 or s 10 of the Act should be regarded as having the same character as a decision to make a declaration under those sections. In Minister for Industry and Commerce v Tooheys Ltd 60 FLR 325the Full Court held that the determinations made by the Minister under consideration in that case under s 273 of the Customs Act 1901 were administrative in character and not legislative in character. In that context, the Full Court said (at 334): It is important to bear in mind that the decision, the subject of these proceedings, is not a decision to make a determination under s. 273; rather it is a refusal to make such a determination. It is difficult to conceive of cases where a refusal to make such a determination under s. 273 would not assume the same character as a decision to make such determination; but it does not necessarily follow that there are no such cases. However, in the present case, the refusal of the Minister's delegate, embodied in the letter of 18th March, 1981, to make a determination in respect of the particular goods the subject of the respondent's application, was a decision of an administrative character. 49 In Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 (at 635) Gummow J, when sitting as a judge of this Court, suggested that a decision not to make a legislative determination pursuant to s 4A(8) of the Health Insurance Act 1973 would be a decision of an administrative character, including for the purposes of the ADJR Act. At 635-636, his Honour said: In this setting, it may be true to say that if the Minister decides not to make a determination, he is executing or administering a law of the Commonwealth. His consideration of the subject is one which he would not have entertained but for the presence of s 4A(8) of the Act. If he decides not to make a determination, then the matter stops there and it may be accurate to say that his decision was of an administrative character; cf Minister for Industry and Commerce v Tooheys Ltd, supra. And it has to be borne in mind that there may be review under s 6 of the ADJR Act in respect of conduct for the purpose of making a decision to which the Act applies: Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263 at 276-7. Nevertheless, in my view, when the Minister makes a determination that the table specified in the determination be substituted for the pathology services table then set out in Sch 1 a of the Act, he is making a decision of a legislative rather than an administrative character. This is because, to adapt the expression of Dixon J, s 4A(8) has reposed in him an authority of an essentially legislative character: Dignan's case supra. The Minister is in a sense executing a law of the Commonwealth because were it not for s 4A(8), he would lack competence to make the determination. But that law was a permitted delegation by the Parliament of legislative authority and to decide to exercise the power conferred by the law is to act as delegate of the Parliament and thus to act legislatively. 50 The observations made by Gummow J in the first paragraph extracted from Queensland Medical Laboratory v Blewett 84 ALR 615 at [49] above were, strictly speaking, obiter dicta. However, the reasoning commands respect, and should, in my view, be followed. 51 A decision to refuse to make a declaration under s 9 or s 10 of the Act leaves the declaration applicant without a result and the citizenry without any rule of law of general application. Furthermore, a refusal is not required to be made the subject of a legislative instrument. All that has to be done is that that Minister must take reasonable steps to notify the applicant of the Minister's refusal to make the declaration. 52 In my judgment, the s 9 and the s 10 decisions are both administrative in character and are therefore both amenable to review pursuant to the ADJR Act and under s 39B. 53 In the present case, the Minister accepted, in any event, that there is a proper jurisdictional basis for the present application, irrespective of whether the decisions under review are characterised as legislative or administrative. It was submitted on behalf of the Minister (correctly, I think) that s 39B constituted a sound basis for the exercise of the Court's jurisdiction in the circumstances of the present case even if I were to hold that the two decisions were both legislative in character (see Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 398). 54 Because I have held that both of the decisions in the present case are administrative in character, I do not need to consider the additional submissions made on behalf of the Minister directed to establishing the different and particular grounds that might be available in respect of judicial review of delegated legislation.

The Applicants' Protection Application 55 Each of the applicants is an Aboriginal within the meaning of the Act. 56 As mentioned at [7] above, by letter dated 16 June 2008 sent to the Minister, the applicants made application to the Minister for an emergency declaration under s 9 of the Act and for a permanent declaration under s 10 of the Act. In that letter, the applicants said: The area we seek to protect consists of a 10.58 hectare[s] block of land subject to development by North Angels Beach (Ballina) Ltd who have obtained a reissued approval from the NSW Minister for Planning to construct a 57 block subdivision for around a 108 [sic] dwellings. 57 The applicants claimed that the matter was urgent because the commencement of construction was imminent. 58 In their application, under the heading Massacre, the applicants said: The site at North Angels Beach was an area where a recorded massacre of Bundajalung people took place in the nineteenth century. The area was traditionally part of a huge camp and ceremonial site. There was plenty of fishing, oysters and bush food. Many tribes and clans from all over the Bundjalung Nation would come there to camp and perform ceremonies. When the massacre of the 1854/5s occurred there were tribes from up and down the coast camped around Angels Beach and the East Ballina area for the ceremonial season. Although it is stated in the historical record that dozens of people were slaughtered we have strong knowledge within our community that the numbers may have been many times more. Survivors from the first wave of attack believed to be around Shaws Bay escaped through the North Angels site. There they were hunted down with others camped along there. Many of the bodies were dumped into a pond near the North Angels Beach land. Others were dumped of Black Head in the adjacent ocean. 59 As a matter relevant to their application, the applicants also asserted that the site had archaeological significance and that the subsurface testing carried out up to that point in time had been inadequate. 60 In their application, the applicants claimed to have knowledge concerning the land at North Angels Beach passed down to them by their ancestors. In particular, they made mention of their grandfather, Baba John Jack Cook, who lived to be 106 years of age. Reference was also made to a video made by the applicants' deceased aunties and a report by an anthropologist, Dr Weiner. 61 Towards the end of their application, the applicants said: We say it is important for true reconciliation that this significant remaining site at East Ballina containing stone, shell, ochre and bone artefacts, burials and a site of one of the most horrific massacres against Aboriginal [sic] be protected for future generations as a healing and memorial of the unspeakable crimes committed against our old people.

The Minister's Section 9 Decision 62 By letter dated 19 August 2008, the Minister informed the applicants that he was not prepared to make an emergency declaration pursuant to s 9 of the Act. In that letter, he said: I have carefully considered the evidence that you and others have provided for my consideration and decision. Based on this evidence I am not satisfied that Lot 208 is a significant aboriginal area within the meaning of the Act, and have therefore decided not to make a declaration under section 9. Aggrieved parties may request a statement of reasons for this decision. You also made [sic] section 10 application under the Act seeking longer term protection for the same area. I will appoint a reporter to prepare a report dealing with the matters prescribed in that section of the Act. 63 On 1 October 2008, the Minister issued a Statement of Reasons for his s 9 decision. 64 In his Statement of Reasons, the Minister identified the area in respect of which the protection declaration was sought by the applicants as: Lot 208 on DP 851318 of Angels Beach, Ballina, New South Wales (NSW). 65 After referring to various sections in the Act, the Minister set out certain background facts. In this section of his Statement of Reasons, he referred to a prior s 10 application made by Mr Troy Anderson on 25 October 2002. In this section, he also referred to various challenges made by the applicants to several NSW Government approvals for the proposed housing subdivision. 66 In par 14 of his Statement of Reasons, the Minister set out the evidence and material which he had before him and which he considered in making the decision which he made. In that paragraph, he referred to three anthropological reports on Lot 208 prepared by Dr James Weiner in 2003, affidavits sworn by the applicants in relation to Land and Environment Court proceedings which had been furnished to him by the applicants' solicitor and a further report on heritage issues submitted to him by the applicants' solicitor. 67 At pars 15 to 44 of his Statement of Reasons, the Minister set out his findings on material questions of fact. At par 16, the Minister correctly noted that the applicants made two claims relating to the significance of the specified area. The first concerned the massacre which took place in the middle of the nineteenth century and the second concerned the treatment of archaeology below the surface of the specified area. At par 18, the Minister recorded the first applicant's assertion in an affidavit furnished to him that, after the massacre had commenced, Aboriginals had fled to the North in an endeavour to escape the attack and that many were wounded and died in the bush and in the forest to the north. The first applicant had said that his grandfather, Baba Cook, had told him that people had died on the lands that are now Lot 208 and that people died all over Angels Beach. The Minister also made reference to other assertions that the massacre had occurred at Angels Beach. At pars 24, 25 and 26 of his Statement of Reasons, the Minister said: 24. I considered the Department's advice that there is no doubt that a massacre occurred in East Ballina in 1853-54. However, the available evidence indicates that the massacre occurred to the south of the specified area. In addition, there is no available evidence of any Aboriginal victims dying in the specified area. The summaries of previous heritage reports on the massacre indicate that in the early 1990s it was Lots 222 and 407 about 1.5 km to the South of Lot 208 that were significant to the Bundjalung people. 25. I also noted that in a letter to the developer the Chairman of the Jali Local Aboriginal Land Council stated:

'I'd like to confirm, for the record, that the opposition to your proposal is only from a small minority of the local aboriginal community. For those within the community who are genuinely wishing to ensure that our cultural heritage is preserved for further generations, our time is better spent on areas that actually can be demonstrated as having high cultural significance to our people.' 26. On the basis of the evidence provided I found that a massacre of Bundjalung people occurred in East Ballina in 1853-54. The letter from Jali Local Aboriginal Land Council indicates that there is disagreement amongst the Bundjalung people today on the relationship between Lot 208 and this massacre. Information collected during the 1980s and 1990s indicates that at this time an area to the south of Lot 208 is considered by Bundjalung people to be the location of the massacre. On this basis I could not be satisfied that the link between the specified area and the 1853-54 massacre is sufficient to make the area of particular significance as part of Aboriginal tradition within the meaning of the Act. 68 The Minister also considered the poisoned flour claim and concluded that there was insufficient evidence for him to be satisfied that Lot 208 was of particular significance because of Aboriginal persons having been killed there by poisoned flour. 69 Finally, in the last section of his Statement of Reasons, the Minister explained why he rejected the claim based on archaeological material under Lot 208. 70 At pars 39-42 of his Statement of Reasons, the Minister said: Finding on Significance

I found that here is insufficient evidence for me to be satisfied there is a link between the specified area and the 1853-54 massacre and I was not satisfied that the area is of particular significance as part of Aboriginal tradition within the meaning of the Act. 40. I found that there is insufficient evidence for me to be satisfied that the specified area is of particular significance as part of Aboriginal tradition within the meaning of the Act for its association with the burial of Aboriginal people killed with poisoned flour. 41. I found that I could not be satisfied that the archaeological material in the specified area is of particular significance as part of Aboriginal tradition within the meaning of the Act. 42. For these reasons, I was not satisfied, based on the material before me, that the specified area is "a significant Aboriginal area" within the meaning of the Act. 71 Because of the findings to which I have referred, the Minister ultimately stated that he was not satisfied that the specified area was a significant area within the meaning of the Act and that, for those reasons, he declined to make a declaration under s 9 of the Act. The Minister said: 44. On the basis of all the information and submissions before me, I was not satisfied that the specified area was a significant Aboriginal area within the meaning of the Act and I declined to make a declaration under s 9 of the Act. 72 The Minister found that the attack which led to the massacre upon which the applicants rely took place on Lots 222 and 407 which are located approximately 1.5-2 km to the south of Lot 208. Although he was aware of assertions that, once the attack commenced, the Aboriginal people who had gathered to meet at East Ballina were dispersed from the attack area and fled to the North, he was not satisfied that there was a sufficient link between Lot 208 and the massacre to make the area of particular significance as part of Aboriginal tradition within the meaning of the Act.

Subsequent Events 73 On 19 August 2008, the Minister appointed Mr John Waters, Barrister, to be the reporter required to report to him pursuant to s 10(1)(c) and s 10(4) of the Act. In a report dated 30 November 2008, Mr Waters reported to the Minister as he was required to do. 74 The report delivered by Mr Waters to the Minister is lengthy. On the face of the report, he has addressed all of the matters which he was required to address by s 10(4) of the Act. He also attached to his report all representations furnished to him as required by s 10(3)(b) of the Act. 75 In par 11 of his report, Mr Waters said, in relation to the massacre: (a) There is ample evidence that, in about 1853 or 1854 a massacre of Aboriginal people took place in the area east of Ballina; (b) There is no satisfactory evidence of the precise location of the massacre. The evidence that does exist does not suggest that it is likely that the massacre occurred on Lot 208. it is more probable than not that it occurred about 1.5 to 2 km to the south of Lot 208; and (c) It is possible that Aboriginal people fleeing the massacre passed over and/or retreated to Lot 208. Wounded victims may even have died on Lot 208. This potential connection between Lot 208 and the massacre draws support from the relative proximity of Lot 208 to the probable site of the massacre, its elevated position and its location relative to a possible escape route to the north which the Aboriginal survivors may have taken. There is no reliable evidence that identifies Lot 208 (as distinct from other parcels or tracts of land in the vicinity) as a place upon which these events in the early aftermath of the massacre are especially likely to have been focused. 76 It is clear from the evidence before me that the applicants were given every opportunity to produce evidence and material both to Mr Waters and to the Minister in support of their claims. It is also clear that the applicants took advantage of that opportunity and brought to the attention of both Mr Waters and the Minister all of the material which they considered to be important and relevant to their claims.

The Minister's Section 10 Decision 77 By letter dated 19 January 2009, the Minister informed the applicants that he had declined to make a s 10 declaration as sought by them. In his letter, the Minister said: I have carefully considered your application, the report prepared by Mr John Waters dealing with the matters prescribed in s 10 of the Act and the representations made to Mr Waters. Based on this evidence I am not satisfied that Lot 208 is a significant Aboriginal area within the meaning of the Act, and therefore I cannot make a declaration under s 10 of the Act. I am currently preparing a Statement of Reasons for this decision and will provide this to you as soon as possible. 78 The Minister subsequently furnished a Statement of Reasons for this decision to the applicants. The Minister's Statement of Reasons for his s 10 decision is dated 4 February 2009. 79 In his Statement of Reasons, the Minister considered the applicants' claim based upon the massacre which took place in the middle of the nineteenth century. At pars 20-42 of his Statement of Reasons, the Minister referred to a number of reports and accounts of what occurred. In particular, he said that he had considered a video transcript of an interview of Cabbage Tree Island Elders, the report of Ms Inge Riebe, an anthropologist, made in 2000 and the three reports prepared in 2003 by Dr James Weiner, also an anthropologist. The Minister made specific reference to a change in view expressed by Dr Weiner as between his first and second reports, the second of which had been prepared only three months after the first report. In his first report, Dr Weiner had said that fleeing Aboriginal people had possibly lost their lives on spots very close to Lot 208. In his second report, he said that those persons had fled across the land of Angels Beach and undoubtedly died there. 80 The Minister recorded some observations made by Mr Waters in respect of this change of view as follows: 34. Mr Waters states that Dr Weiner does not specifically identify the additional information that caused him to shift his view, held in February 2003, that Aboriginal people had "possibly" lost their lives "on spots very close to the development area", to the conclusion, reached in May 2003, that Aboriginal people had "undoubtedly" died on "the land of Angels Beach". Mr Waters acknowledges that Dr Weiner did undertake additional interview and research before drafting the second report, however he notes that the material parts of the interview included in the report are in his view, an unsound basis upon which to base the May 2003 conclusion. 81 After referring to other accounts of the massacre which had been given to Mr Waters, the Minister said, at pars 39 and 40: 39. I noted that in support of their application the applicants submitted a petition signed by 19 people who identify as Aboriginal persons of the Bundjalung nation. This petition states that the area of Angels Beach and particularly North Angels Beach is a significant place for Bundjalung and that the land is sacred to them in accordance with the traditions "because it is a place where many of our old people were hunted down and massacred during the 19th century." 40. Mr Waters considered the applicants statements on the massacre and the petition. He also provides a summary of the accounts the applicant have given in relation to the places associated with the massacre. After considering these accounts Mr Waters concludes that the various descriptions of the places where people are said to have died, the places to which people fled, where they fell and where they are buried or disposed of are not entirely uniform and, cumulatively if not individually cover a very large area. 82 The Minister found that the alleged poisoning of Aboriginal people by giving poisoned flour to them on Lot 208 was not established. 83 At par 44 of his Statement of Reasons, the Minister quoted par 11 of Mr Waters' report. He then said, at pars 45 and 46: 45. Mr Waters reasoning sets out that Aboriginal people may have fled across the specified area and people may have died there but nowhere does he conclude there is reliable evidence that this happened. I also noted that Mr Waters concluded that he was not satisfied that lot 208 was of particular significance in accordance with Aboriginal tradition. 46. On the basis of the evidence provided I concluded that the focus of the massacre was located some two kilometres south of the specified area and that there is no reliable evidence that identifies the specified area as a place where Aboriginal people died as a result of a massacre. I found, therefore, that I could not be satisfied that the specified area is a significant Aboriginal area within the meaning of the Act for its association with a massacre. 84 At par 47, the Minister commenced his consideration of the second basis for the applicants' claim, namely that based upon the value of archaeological remains under the surface of Lot 208. 85 The Minister's ultimate findings are found at pars 74-78 and are in the following terms: Findings on Significance

On the basis of the evidence provided I concluded that there is no reliable evidence that identifies the specified area as a place where Aboriginal people died as a result of a massacre. 75. On the basis of the evidence provided I concluded the physical evidence of Aboriginal inhabitation of the specified area does not make it of particular significance in accordance with Aboriginal tradition. 76. On the basis of the evidence provided I concluded there is insufficient evidence for me to be satisfied that the specified area is a significant Aboriginal area because of the presence of a bora ring. 77. On the basis of the evidence provided I concluded that there was insufficient evidence for me to be satisfied that the specified area includes a goanna increase site. I also concluded that there was insufficient evidence for me to be satisfied that the specified area is a significant Aboriginal area because of an association with the Four Brothers story. 78. On the basis of the evidence provided I was not satisfied that the specified area is a significant Aboriginal area because of its association with two ceremonies conducted by the applicants.

The Utility of the Challenge to the Section 9 Decision 86 The proceedings were commenced on 28 October 2008. That was after the date upon which the s 9 decision was made and after the Minister provided his Statement of Reasons in respect of that decision but before the s 10 decision was made. 87 The Minister submitted that there was no utility in the applicants' challenge to the s 9 decision. He submitted that the s 9 decision in the present case had been effectively overtaken by the s 10 decision. He then submitted: If the Court found that there was no error in the Minister's decision under s 10, then there would be no utility in granting relief in respect of any error in the s 9 decision. That is, if the Minister has lawfully decided not to make a declaration under s 10 in respect of the application, there would be no rational basis for the Minister to make an emergency declaration in respect of the same matter. … Conversely, if the Court were to find that there was error in the s 10 decision, and remitted the matter to the Minister for redetermination under s 10, there would be no utility in also granting relief in relation to the s 9 decision (even if that decision were found to be infected by error). In such circumstances it would be open to the applicants to seek an emergency declaration pending redetermination of the s 10 decision, in which case such an application would stand to be determined in light of the Court's findings. 88 Mr Oshlack, on behalf of the applicants, pressed the applicants' challenge to the s 9 decision. However, he was unable to provide a cogent or satisfactory answer to the Minister's submissions which I have extracted at [87] above. 89 I think that the Minister's submissions are correct. There is now no utility in the applicants' challenge to the s 9 decision and I do not propose to give that challenge further consideration in light of that finding. 90 Of course, were the s 10 decision set aside, as sought by the applicants, it would be open to them to make a fresh s 9 application which, as the Minister has conceded, would fall for consideration in light of these Reasons for Judgment and any other relevant circumstances in play at the time when such application is made.

The Applicants' Challenge to the Section 10 Decision 91 It is apparent from the Statement of Reasons in respect of his s 10 decision furnished by the Minister to the applicants that the applicants failed to satisfy the Minister that Lot 208 is a significant Aboriginal area (within the meaning of the Act) and thus failed at the outset to meet the first precondition for action by the Minister mandated by s 10. By the time the Minister made the s 10 decision, he had received a s 10(1)(c) report from Mr Waters, had considered that report and the representations attached to it and had considered such other matters as he thought relevant. Further, it may be assumed that, had it become necessary to consider the matter, the Minister would probably have been satisfied that Lot 208 was under threat of desecration within the meaning of the Act. 92 Significant Aboriginal area is defined in the Act. Lot 208 is an area of land in Australia. Of that, there can be no doubt and, of that, the Minister was satisfied. The difficulty for the applicants, insofar as the Minister's s 10 decision is concerned, is that the Minister was not satisfied that Lot 208 was … an area of particular significance to Aboriginals in accordance with Aboriginal tradition. 93 The critical conclusion reached by the Minister is found in par 46 of his Statement of Reasons provided in respect of the s 10 decision. In that paragraph, he stated that he accepted that a massacre had occurred, that it had commenced approximately 2 km south of Lot 208 and that persons who were attacked south of Lot 208 may have fled to the north and may have died in the general vicinity of Lot 208 along with others who had camped in that general area. In earlier paragraphs of his Statement of Reasons, the Minister had referred to various observations made by Mr Waters in his report and, after considering the contents of that report and the documents attached to it, broadly accepted the conclusions stated in that report. At par 11(c) of his report, Mr Waters explained why it was that there was no reliable evidence that pinpointed Lot 208 (as distinct from other parcels or tracts of land in the vicinity) as a place upon which Aboriginal people were hunted down and slaughtered in the early aftermath of the massacre. 94 There is no doubt that the Minister had before him the video referred to in [16(a)(i)] above, Dr Weiner's three reports and the applicants' letter of claim. There is also no evidence to suggest that the Minister did not read and consider all of the attachments to Mr Waters' report, as he was bound to do under the Act. 95 Mr Oshlack manfully submitted that, in effect, the evidence which was before the Minister could lead a reasonable decision-maker acting honestly and reasonably to make only one decision, that is to say, to make a s 10 declaration. In support of that proposition, Mr Oshlack took me to all of the evidentiary material which he submitted made good his fundamental proposition. Mr Oshlack submitted that the Minister's refusal to make the requested s 10 declaration manifested an error of law because that decision could only have been arrived at by the application of a standard of proof higher than the balance of probabilities. Mr Oshlack relied upon the same material to demonstrate that the s 10 decision was manifestly unreasonable. 96 The Act does not require the Minister to apply any particular standard of proof in deciding whether or not he is satisfied that the area is a significant Aboriginal area within the meaning of the Act. Nor is there any principle which requires the application of a particular onus of proof or standard of proof in administrative decision making (see Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288). The Minister may approach the finding of facts in such manner as he thinks fit subject to the principles to which I refer at [98]-[105] below. In his Statement of Reasons provided in support of the s 10 decision, the Minister did not state that he was applying any particular standard of proof. 97 In the present case, the obligation imposed upon the Minister to be satisfied that Lot 208 is a significant Aboriginal area required the Minister to act in good faith and not arbitrarily or capriciously. The Minister must consider all matters that he is required to consider and must not take into account irrelevant matters. A decision reached by the Minister which is so unreasonable that no reasonable decision-maker could properly have arrived at that decision may be set aside. These principles may be extracted from the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. 98 In recent times, the High Court has said that the opinion or satisfaction required by provisions of the sort with which the present case is concerned must be formed reasonably upon the material before the decision-maker (Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [33] (per Gummow, Hayne, Heydon and Keifel JJ)). 99 The difficulty for the applicants in the present case is that the subject matter of the Minister's satisfaction under s 10(1)(c)(i) of the Act is essentially factual. The Minister must gain an appreciation of relevant Aboriginal tradition, must discern and consider the basis upon which Lot 208 is claimed by the applicants to be an area of particular significance to Aboriginals in accordance with that tradition, must evaluate that evidence and ultimately come to a view as to whether he is satisfied that Lot 208 is a significant Aboriginal area within the meaning of the Act. 100 In Broadbridge v Stammers (1987) 16 FCR 296 at 301, the Full Court, when dealing with a challenge to a decision which involved evaluation by the decision-maker of factual matters, cited, approved and relied upon the following passage from the speech of Lord Brightman in Puhlhofer v Hilingdon London Borough Council [1986] AC 484 at 518: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. 101 Gummow J, when sitting as a judge of this Court, cited Lord Brightman's speech in Puhlhofer v Hilingdon London Borough Council [1986] AC 484 with approval in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 156 at 165-166. His Honour said that the substance of Lord Brightman's speech was consistent with the approach taken by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 102 In Bienke v Minister for Primary Industries and Energy 125 ALR 156 at 166, his Honour went on to say: Further, great caution must be shown in judicial review under s 39B of determinations resting upon factual matters where (i) the determinations in question were made after prolonged public debate, and (ii) being legislative in character, the determinations were subject to disallowance by either House of Parliament, and (iii) the disputed matters of fact turn upon expert knowledge and opinion, there is dispute between the experts, and there was no cross-examination upon that conflict. 103 Although these latter remarks made by his Honour are not directly applicable, the sentiments which underpin them certainly are. The thrust of the legislative scheme in the Act is to transfer to the reporter who must be appointed pursuant to s 10 of the Act the investigative role and to provide to the Minister the benefit of the reporter's investigations, the evidentiary material gathered by him or her and the recommendations made by him or her. Ordinarily, it will be the case that all relevant evidentiary material and points of view will be gathered by the reporter and made available to the Minister. 104 In the present case, the Minister had the benefit of all evidentiary material, the considered views of Mr Waters, the benefit of the applicants' views and opinions and all of the attachments to Mr Waters' report. 105 For the applicants to succeed in their contentions, they must demonstrate either that the Minister has acted perversely or that his findings or inferences of fact are simply not supported by any probative material or logical grounds (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] (per Gummow J)). 106 At bottom, Mr Oshlack's submissions come to this: the applicants disagree with the ultimate conclusion reached by the Minister to the effect that there was no reliable evidence establishing that any Aboriginal people died on Lot 208 in the aftermath of the massacre. The applicants disagree with that decision because they firmly and genuinely believe that Aboriginal people did die on Lot 208 in significant numbers after the initial attack and that there was a great deal of evidence to support that conclusion. 107 It is, of course, always difficult to prove with any significant degree of precision facts and circumstances which occurred so long ago where records are unreliable and inadequate and this factor has to be taken into account in the present case. However, I am unable to conclude that, in making the decision which he did, the Minister acted perversely or based his decision on findings or inferences of fact which were not supported by any probative material and which were not made on logical grounds. The Minister has explained his reasoning process. That process, and the findings which he made, cannot be criticised on the bases to which I have just referred. He had Mr Waters' report and he had Mr Waters' views. He had all of the material attached to that report. In the end, I am driven to conclude that it was fairly open to the Minister to make the decision which he did. In a matter such as this, it would not be enough to justify the relief which has been claimed for me to decide that I would have come to a different view. In the end, whilst the applicants' submissions were supported by a careful analysis of the evidentiary material in an endeavour to persuade me that a different decision from that which had been made by the Minister was warranted, I have not been persuaded that the Minister's decision discloses reviewable error. 108 The conclusions to which I have come and which I have expressed at [106] and [107] above also deal with the applicants' contention that the s 10 decision was manifestly unreasonable. 109 The challenge to the way in which the Minister dealt with the archaeological claim advanced by the applicants in their letter dated 16 June 2008 was only faintly supported in submissions made at the hearing. I have been unable to discern any reviewable error in the way in which the Minister dealt with that matter. The ground of review based upon the potential for important archaeological material to be found on Lot 208 also fails.

Conclusion 110 For all of the above reasons, the applicants' application must be dismissed with costs. There will be orders accordingly. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Legislative Instruments Act 2003(Cth)

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Judgment (57 paragraphs)

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