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[2026] NSWSC 1081
Supreme Court of NSW
2026-09-09
Sirtes J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Duncan v Minister for Aboriginal Affairs and Treaty [2026] NSWSC 1081
Hearing dates: 21 August 2026
Date of orders: 9 September 2026
Decision date: 09 September 2026
Jurisdiction: Common Law
Before: Sirtes J
Decision: (1) The Amended Summons is dismissed.
Catchwords: ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – where Stolen Generations Reparations Scheme established in exercise of non-statutory executive power – where scheme empowers Minister to make ex gratia payments to persons removed by, committed to, or who otherwise came into the care of the Aborigines Protection Board or the Aborigines Welfare Board – where parties agreed that Court should proceed on the basis that review was available – whether decision amenable to judicial review – not decided
ADMINISTRATIVE LAW – hearing rule – notice – particulars of case against applicant – where claim for ex gratia payment under non-statutory reparations scheme refused – where refusal letter identified the eligibility criteria and the deficiency in the applicant’s evidence – whether decision-maker obliged to disclose the path of reasoning proposed to be adopted
ADMINISTRATIVE LAW – ground of review other than procedural fairness – unreasonableness – where scheme non-statutory and guidelines not binding – where Minister purported to apply the guidelines – whether misconstruction of non-binding guidelines is reviewable absent unreasonableness – whether the intent of the scheme admits of only one correct interpretation – construction of the phrase “otherwise came to be in the care of the Board”
EVIDENCE – privileges – parliamentary privilege – where committee report and Government’s response were tabled in Legislative Council – where copy of the response in evidence was obtained from executive government website – whether Art 9 of the Bill of Rights precludes reliance on the report to identify the purpose and scope of a non-statutory scheme – whether the response so published attracts the protection of Art 9
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), s 69, Sch 2
Aborigines Act 1969 (NSW), ss 3, 4, Sch
Aborigines Protection Act 1909 (NSW), ss 3, 4, 7, 8, 8A, 11, 11A, 11B, 12, 13, 13A
Aborigines Protection Amending Act 1915 (NSW), ss 2, 3, 4
Aborigines Protection (Amendment) Act 1936 (NSW), s 2
Aborigines Protection (Amendment) Act 1940 (NSW), ss 2, 3
Apprentices Act 1901 (NSW)
Bill of Rights 1689, Art 9
Child Welfare Act 1939 (NSW), s 82
Government Information (Public Access) Act 2009 (NSW)
Imperial Acts Application Act 1969 (NSW), s 6, Sch 2
Interpretation Act 1987 (NSW), s 34
Neglected Children and Juvenile Offenders Act 1905 (NSW)
Parliamentary Privileges Act 1987 (Cth), s 16
Cases Cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
ALR17 v Minister for Home Affairs [2019] FCAFC 182
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; [2011] FCAFC 107
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23; [2021] FCAFC 213
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10
Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales (2026) 119 NSWLR 80; [2026] NSWCA 20
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5
Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Luong v Minister for Immigration, Citizenship and Multicultural Affairs (2026) 315 FCR 159; [2026] FCAFC 6
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 8
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23
MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 285; [2020] FCAFC 215
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Pepper (Inspector of Taxes) v Hart [1993] AC 593
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Po’oi v Minister for Immigration and Citizenship (2025) 314 FCR 376; [2025] FCAFC 192
Prebble v Television New Zealand Ltd [1995] 1 AC 321
Sofronoff v ACT Integrity Commission [2025] FCA 1565
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Texts Cited: Aboriginal Affairs NSW, Guidelines for the Administration of the NSW Stolen Generations Reparations Scheme (2022)
New South Wales Government, Unfinished Business: NSW Government Response to the General Purpose Standing Committee No 3 Report into Reparations for the Stolen Generations (10 December 2016)
New South Wales Legislative Council, General Purpose Standing Committee No 3, Reparations for the Stolen Generations in New South Wales: Unfinished Business (June 2016)
Category: Principal judgment
Parties: Shirley Patricia Duncan (Plaintiff)
Minister for Aboriginal Affairs and Treaty (Defendant)
President of the Legislative Council of New South Wales (Amicus Curiae)
Representation: Counsel:
JE Davidson SC / CJ Tran (Plaintiff)
PD Herzfeld SC / EC Dunlop (Defendant)
TM Wood (Amicus Curiae)
Solicitors:
Legal Aid Commission of New South Wales (Plaintiff)
Crown Solicitor’s Office (Defendant)
Corrs Chambers Westgarth (Amicus Curiae)
File Number(s): 2026/00007935
In around 1959 or 1960, Mrs Shirley Duncan (the Plaintiff), then a 16- to 17-year-old First Nations woman, was relocated from her home at Moree Mission, where she had lived from about the age of three. She was moved to a farm called “Kelvington” at Mungindi, run by the Houston family, for about three months.
In 2023, at age 80, the Plaintiff, who identifies as a member of the Stolen Generations, applied to the Minister for Aboriginal Affairs and Treaty (the Defendant) for an ex gratia payment under the New South Wales Stolen Generations Reparations Scheme (the Scheme). The Manager of the Scheme refused that application on 11 March 2025. Legal Aid NSW requested an internal review of that refusal on the Plaintiff’s behalf in June 2025. On 25 August 2025, the Defendant personally decided to refuse the Plaintiff’s application for an ex gratia payment (the Decision). On 22 September 2025, that decision was communicated to the Plaintiff by letter from the Manager of the Scheme.
By an Amended Summons filed on 30 March 2026, the Plaintiff seeks declaratory relief that the Defendant declined her application for an internal review in a manner that was procedurally unfair, unreasonable and/or illogical.
The Scheme was established by the New South Wales Government to provide reparations for survivors of the Stolen Generations. It operated from 1 July 2017 to 30 June 2023.
The origin of the Scheme was a report tabled in the Legislative Council by General Purpose Standing Committee No 3 in June 2016, titled Reparations for the Stolen Generations in New South Wales: Unfinished Business (the Unfinished Business Report). That report, which spans more than 200 pages including a number of appendices, was the subject of a voir dire in these proceedings concerning the use to which that report could be put by the Plaintiff. I granted leave for the President of the Legislative Council (the President) to appear as amicus curiae and make submissions on the issue. For reasons that shall become apparent, there is no need to resolve that issue to determine these proceedings.
More significant is what the parties described as the Response Report, formally entitled Unfinished Business: NSW Government Response to the General Purpose Standing Committee No 3 Report into Reparations for the Stolen Generations, which was tabled in the Legislative Council pursuant to Standing Order 233(1). Unlike the Unfinished Business Report, there is no controversy between the parties about the Plaintiff’s reliance on the Response Report in these proceedings.
The Response Report is detailed. Both parties drew my attention to various parts of it. There are 35 recommendations. It is not necessary to analyse the report in depth. But I will set out those parts of the Response Report to which the parties drew my attention.
Under the heading “Introduction”, the Response Report relevantly states:
“The General Purpose Standing Committee No. 3 (the Committee) report into reparations for the Stolen Generations Unfinished Business (the Report) makes 35 recommendations to address the enduring effects of past government practices in relation to the Stolen Generations. The Government accepts the majority of the recommendations.
In NSW, under the Aborigines Protection Act 1909, the Aborigines Welfare Board had wide-ranging control over the lives of Aboriginal people, including the power to remove children from their families and place them into care under a policy of assimilation.
The children removed by the Board suffered an enduring loss of culture and belonging, with many suffering severe abuse and neglect. Child removals had individual and widespread impacts on families and communities. Children separated from their parents suffered trauma, as did their parents, siblings, grandparents and extended family members. This trauma has been passed down to their descendants and continues to be felt today.
…
Forced removals disempowered Aboriginal people and trauma has further devastated community social and economic structures. Survivors believe that their removal is intrinsically linked to ongoing discrimination, social and economic disadvantage and current systemic failures in education, health, justice and welfare.
…
Due to their advancing age, the response recognises the urgent need for meaningful support for survivors.
The Government’s response will involve two significant initiatives. The first – the establishment of a Stolen Generations reparations scheme – recognises the profound impacts that removal has had on Stolen Generations survivors. …”
“It is estimated that approximately 1,079 children born after 1925 were removed by the Aborigines Welfare Board up until its abolition in 1969. These children were placed in Aboriginal Children’s Homes (such as Kinchela Aboriginal Boys’ Training Home and Cootamundra Aboriginal Girls’ Training Home), other state or non-state run homes, or were adopted or fostered.
…
The NSW Government will establish a Stolen Generations reparations scheme to enable ex gratia payments to all surviving children removed by the Aborigines Welfare Board, in recognition of their loss of connection to their family and culture.
However, the NSW Government will not reopen the Aboriginal Trust Fund Repayment Scheme. During the Scheme’s operation the majority of applicants fell outside the scope of the scheme and 80 per cent of claims were unsuccessful. A re-opened scheme would incur significant administrative cost for relatively little benefit and raise community expectations that cannot be met.”
“The NSW Government establish a reparations scheme for Stolen Generations survivors, in accordance with the principles of self-determination and doing no further harm, with the scheme to:
■ be developed in close consultation with Stolen Generation survivors
■ complement the current group action involving Stolen Generation survivors
■ provide appropriate communal and individual responses, including a personal letter of apology from the Premier and Minister for Aboriginal Affairs
■ include a right of appeal
■ consider learnings from the South Australia and Tasmanian reparation schemes.
Response: Accepted
The NSW Government will establish a Stolen Generations reparations scheme, providing ex gratia payments of up to $75,000 to those removed by the Aborigines Welfare Board up until the time the Board was repealed in 1969.”
“The scheme will be underpinned by the NSW Government Ex-Gratia Payments Policy that enables the relevant Minister, in this case the Minister for Aboriginal Affairs, to provide payment to those that have suffered a financial or other detriment as a result of the workings of government, where there is no legal recourse available to remedy the issue.
The act of removal by, or committal to, the care of the Board will be the basis for the payment and all those removed and placed in homes, fostered or adopted will be eligible.
Consistent with the Committee’s recommendation, the scheme will only be available to survivors, not descendants. The Reparations scheme will also not make payments for personal injuries as a result of physical mistreatment and sexual abuse. Compensation for physical mistreatment and sexual abuse are currently being provided through the legal action initiated by Stolen Generations survivors (Stolen Generation Group Action). …
The Stolen Generations reparations scheme will not provide payments for other types of loss and harm identified by survivors including:
■ Denial of educational opportunities and life skills by limiting training to domestic services and farm hands, which in turn limited life potential and opportunity.
■ Distress and trauma caused by the forced removal of the children of survivors while they were still wards of the Board, although the children removed by the Board would be eligible under this scheme.
…
The eligibility requirements for applicants would take into account that the Board’s records are incomplete due to loss, deliberate destruction and poor recordkeeping practices. Official Board records, and evidence in the form of statutory declarations, oral evidence and other documentary sources, including photos, and corroborative evidence from other survivors and SGOs, would be accepted.”
The Guidelines for the Administration of the NSW Stolen Generations Reparations Scheme (the Guidelines) is the central document in the dispute. Both parties took the Court to its provisions in some detail.
The presently significant provisions of that document are as follows:
“1.5 The Scheme is based on the NSW Government Ex Gratia Payments Policy. Subject to paragraph 1.8 below, there will be a standard payment of $75,000 to Stolen Generations survivors found to have been removed by, committed to, or otherwise come into the care of the Board. The amount awarded will be no more than the standard sum.
…
1.8 These Guidelines are not binding upon the Independent Assessor or the Minister and either the Independent Assessor or the Minister may depart from these Guidelines if they are satisfied that it is in the interests of justice and equity to do so.
…
2.1 The Scheme will operate for a period of 6 years commencing 1 July 2017.
…
3.1 The functions and responsibilities of the SGRS Unit in relation to the Scheme include but are not limited to:
3.1.1 receiving and processing applications made pursuant to the Scheme;
…
3.1.4 making recommendations, in accordance with Parts 9 and 11 of the Guidelines, to the Independent Assessor for the payment of claims;
3.1.5 forwarding the Independent Assessor’s recommendations to the Minister for approval; and
…
3.2 The rules of evidence do not apply to assessments of applications by the SGRS Unit, but the SGRS Unit shall only consider evidence which the relevant officer in the SGRS Unit is satisfied is relevant to the recommendation/s which the SGRS Unit shall make and which the officer is satisfied is reliable evidence.
…
4.2 The rules of evidence do not apply to determinations of the Independent Assessor, but the Independent Assessor should only consider evidence which they are satisfied is relevant to the recommendation/s which they shall make and which the Independent Assessor is satisfied is reliable evidence.
4.3 Recommendations of the Independent Assessor in relation to applications will be submitted to the Minister for consideration.
5. Lodging of applications
5.1 The following persons are eligible to apply for an ex gratia payment pursuant to the Scheme:
5.1.1 a person who was removed by, committed to or otherwise came to be in the care of the Board up until the Aborigines Protection Act 1909 was repealed on 2 June 1969;
…
9. Recommendation for payment by Independent Assessor
9.1 If the Independent Assessor is satisfied that there is certainty, strong evidence or strong circumstantial evidence that the claimant was removed by, committed to or otherwise came into the care of the Board up until the Aborigines Protection Act 1909 was repealed in 1969, they shall make a recommendation that the Minister make an ex gratia payment to the claimant.
…
10. Consideration of applications by the Minister
10.1 The Minister, on receiving the documentation referred to in clause 8.1.5 from the Independent Assessor will determine, in their absolute discretion, either to
10.1.1 make an ex gratia payment; or
10.1.2 not make an ex gratia payment.
…
11. General principles relevant to the consideration and/or determination of applications
11.1 In considering an application, regard shall be had to the following factors:
11.1.1 the length of time that has elapsed and the difficulty claimants may have in substantiating their application as a result;
11.1.2 any deficiencies in the official written record relating to the application or similar applications;
11.1.3 the importance of oral evidence in the absence of written records and in the cultural traditions of Aboriginal people;
11.1.4 the purpose of the Scheme, which is to provide reparations to Stolen Generations survivors who were removed by, committed to, or otherwise came to be in the care of the Board under the policy of assimilation; and
11.1.5 any other matter which the SGRS Unit, the Independent Assessor or the Minister considers relevant.
…
13. Definitions
…
13.11 ‘Stolen Generations’ for the purpose of these Guidelines means Aboriginal children who were removed by, committed to or otherwise came to be in the care of the Board up until the Aborigines Protection Act 1909 was repealed in 1969.”
Mr Herzfeld SC, who appeared with Ms Dunlop for the Defendant, took the Court in his oral address to the legislative background of forced removals of First Nations people which the Scheme was created to address. He contended that the reasoning impugned by the Plaintiff is intelligible when considered against that background.
The Board for the Protection of Aborigines was created in June 1883. It was established administratively and had no legislative authority. The Board managed reserves, rations and, from the 1890s, dormitories.
Statutory power was first conferred with the passage of the Aborigines Protection Act 1909 (NSW) (the Protection Act), which commenced on 1 June 1910. The Protection Act was thereafter amended several times until its repeal in 1969 by the Aborigines Act 1969 (NSW) (the Aborigines Act).
Section 4(1) of the Protection Act established a board styled “The Board for Protection of Aborigines”. Subject to the direction of the Minister, the Board was to be the authority for the “protection and care of aborigines” under the Act: s 4(2). The duties of the Board included, amongst others, “to provide for the custody, maintenance, and education of the children of aborigines” and “to exercise a general supervision and care over all matters affecting the interests and welfare of aborigines, and to protect them against injustice, imposition and fraud”: s 7(c), (e).
Section 8 of the Protection Act vested all reserves in the Board. A reserve was defined as an “area of land heretofore or hereafter reserved from sale or lease by the Governor, or given by or acquired from any private person, for the use of aborigines”: s 3.
The Defendant emphasised s 11(1), which provided:
(1) The board may, in accordance with and subject to the provision of the Apprentices Act, 1901, by indenture bind or cause to be bound the child of any aborigine, or the neglected child of any person apparently having an admixture of aboriginal blood in his veins, to be apprenticed to any master, and may collect and institute proceedings for the recovery of any wages payable under such indenture, and may expend the same as the board may think fit in the interest of the child.
Every child so apprenticed shall be under the supervision of the board, or of such person as may be authorised in that behalf by the regulations.
Any such child so apprenticed shall be liable to be proceeded against and punished for absconding, or for other misconduct, in the same way as any child apprenticed by his father with such child’s consent.
Section 11(2) provided that a “neglected child” bore the same meaning as in the Neglected Children and Juvenile Offenders Act 1905 (NSW), but only for a child above the age of 14 and under 21 years of age. The Aborigines Protection Amending Act 1915 (NSW) (the 1915 Act) amended s 11 by:
stripping the protection of the Apprentices Act 1901 (NSW) in conditioning the exercise of the Board’s discretion: s 2(1)(a);
repealing the last paragraph: s 2(1)(b); and
removing the minimum age of 14 from the definition of “neglected child”: s 2(2).
Sections 3–4 of the 1915 Act also relevantly added the following provisions to the Protection Act:
11A.
(1) Every child so apprenticed who refuses to go to the person to whom the Board has apprenticed him may be removed, for the purpose of being trained, to some home or institution as the Board may arrange.
…
11B. Any child absconding from any home or institution wherein he has been placed under order of the Board, may be dealt with as a “neglected child” under the provisions of the Neglected Children and Juvenile Offenders Act, 1905: Provided that child in this section means any person under eighteen years of age.
…
13A. The Board may assume full control and custody of the child of any aborigine, if after due inquiry it is satisfied that such a course is in the interest of the moral or physical welfare of such child.
The Board may thereupon remove such child to such control and care as it thinks best.
The parents of any such child so removed may appeal against any such action on the part of the Board to a Court as defined in the Neglected Children and Juvenile Offenders Act, 1905, in a manner to be prescribed by regulations.
The discretion reposed in the Board by this amendment was disturbingly broad. In terms of its impact on Aboriginal people, this amendment was decisive. It allowed the Board to assume full control and custody of any child of any Aboriginal person if it considered that to be in the interests of the child’s moral or physical welfare (howsoever that was applied).
In 1936, the Board’s powers were further widened by the introduction of a new s 8A(1) into the Protection Act which allowed a stipendiary magistrate or police magistrate, on the application of the Board, to order “an aborigine or a person apparently having an admixture of aboriginal blood” living “in insanitary or undesirable conditions” to be removed to a reserve or a place controlled by the Board: Aborigines Protection (Amendment) Act 1936 (NSW) s 2(1)(c).
The Aborigines Protection Board was replaced by the Aborigines Welfare Board in 1940: Aborigines Protection (Amendment) Act 1940 (NSW) (the 1940 Act) s 2. The concept of a “ward” was introduced as being “a child who has been admitted to the control of the board or committed to a home constituted and established under section eleven of [the Protection Act]”: 1940 Act s 3(a)(iv).
Section 3(b)(iii) of the 1940 Act also introduced s 7(2) in the following terms:
(2) The board may on the application of the parent or guardian of any child admit such child to the control of the board.
11. The board may constitute and establish under this Act homes for the reception, maintenance, education and training of wards and may assign a name or names to such homes.
11A.
(1) The board may, by indenture, bind or cause to be bound any ward as an apprentice or may, where apprenticeship conditions are not applicable or desirable, place any ward in other suitable employment.
…
13A.
…
(2) Any person having the care, custody or control of a child may apply to a children’s court established under the Child Welfare Act, 1939, to commit the child to the control of the board or to a home constituted or established under section eleven of this Act upon the ground that he is an uncontrollable child.
Therefore, following the 1940 Act, a child could be committed to the control of the Board on the application of their parent or guardian by s 7(2), and an “uncontrollable child” could be so committed on the application of any person having the care, custody or control of that child to a Children’s Court by s 13A(2). This marked a significant change in the Board’s operation because it no longer possessed a power of removal at large.
The Board was abolished and the Protection Act repealed in 1969: Aborigines Act ss 3–4, Sch. Aboriginal children were thereafter brought within the general child welfare regime. The Aborigines Act was ultimately repealed in 1983: Aboriginal Land Rights Act 1983 (NSW) s 69, Sch 2 (as enacted).
“Where were you sent after being taken
(Do you know the name of the Institution? Were you adopted, fostered or sent to work by the AWB? It’s OK to write ‘I don’t know’.)”
“The Scheme was established to make reparations to Stolen Generations survivors who were forcibly removed by, committed to or otherwise came to be in the care of the Aborigines Protection Board and/or Aborigines Welfare Board and placed in the Board’s children’s homes and other institutions and orphanages, or were fostered and/or adopted, prior to 2 June 1969 when the Board was abolished and the Act repealed.
The Aborigines Protection Act 1909 was responsible for many harms. However, in establishing the Scheme, the NSW Government response to Unfinished Business made it clear that the focus of the Scheme is to make reparations to those children forcibly removed from their families and placed in homes, fostered or adopted. Other harms such as living on an Aborigines Welfare Board controlled Mission, station or reserve are outside the Scheme’s eligibility criteria.
For us to proceed with your application, the Scheme requires confirmation from you that you were removed from your parents before 2 June 1969.
If you would like legal advice about this matter you can contact Legal Aid NSW … to request a meeting with their civil law team. This a free and independent service available to Aboriginal people across NSW.”
On 3 December 2024 the Plaintiff declared a range of matters concerning her life on Moree Mission, being sent to work, and the impact of being removed.
She declared that she was born in Gloucester and lived with her grandmother on Moree Mission from the age of three. She went to the Moree Mission school up to Year 6, but after that there was “no more school, unless you got an exemption”. She stated that she was not allowed to go on or off the Mission, and that the Mission Manager decided the times at which the Plaintiff could come and go. She was not allowed to go to town or up the street near any pubs and, if she misbehaved, she could have been banned from the Mission.
I set out in full pars 16 to 26 of the declaration as they are highly germane:
“Being sent to Work
- When I was about 16/17 years old, I remember having to go and work on a farm called Kelvington in Mungindi.
- The farm was run by the Houston’s, a white family.
- I do not really remember how I ended up working on the farm, but I think it was organised by the Mission Managers at Moree.
- I worked there for about three months. I would work all day, doing what they wanted. I would sleep in a different room in the house. The Houston’s would feed me
- When I was there, I was doing work, like kitchen stuff.
- I do not remember getting paid.
- I never saw any kids out there, but another Aboriginal family lived on the property, they were Naylons.
- I really did not like leaving my family behind.
- I could not contact my family while working for the Houston’s.
- When I was on the property I could not leave, I had to stay on the property. There was no way to leave, it was out in Mungindi, there was nowhere to go.
- I cannot remember how I come to leave that job; it was a long time ago.”
“I write regarding your claim to the NSW Stolen Generations Reparations Scheme. The Scheme was established to make reparations to a particular group of Stolen Generations survivors - those who were forcibly ‘removed by, committed to or otherwise came to be in the care of’ the Aborigines Welfare Board, and placed in the Board’s children’s homes and other institutions and orphanages, or were adopted and fostered before the Board was abolished and the Aborigines Protection Act 1**909 was repealed on 2 June 1969.
In assessing your application, we first searched the records of the Aborigines Welfare Board and a request was made for a copy of any records held by the Department of Communities and Justice in your name. Very few records were found for you and your family. These were considered together with your Statutory Declaration.
Apart from your attendance at a Christmas party at the age of 13, most of the records found relate to you as an adult and where not considered as part of this assessment. While it was not unusual for Aboriginal teenagers to work off missions and stations, 1940 amendments to the Aborigines Protection Act meant that the Board could only apprentice wards. Aborigines Welfare Board wards were subject to strict controls over their employment and wages. Unlike wards, the employment records for other young First Nations people in the 1950s and 1960s show that they were able to leave employment that the Board assisted them to find. We could not demonstrate that you were forcibly separated from your family or made a ward of the AWB or that the AWB organised an apprenticeship for you. There was no evidence of a Trust Account established to control your wages.”
Shortly after receiving this letter, on 16 April 2025 the Plaintiff applied under the Government Information (Public Access) Act 2009 (NSW) (GIPA) for a range of documents informing the Scheme’s decision of 11 March 2025, including documents from the Stolen Generations Reparations Scheme Unit, the Independent Assessor and the Minister for Aboriginal Affairs, to better inform herself of the reasoning process.
That information was made available from 19 May 2025, subject to certain redactions.
The parties took the Court in some detail to the Stolen Generations Reparations Scheme Claim Summary document prepared by the Scheme Unit in response to the Plaintiff’s application. It contained the “SGRS Unit Assessment” (the Unit Assessment).
In summary, the Unit Assessment found that the Plaintiff had not been removed by the Aborigines Welfare Board. It stated that the records relevantly indicated the following:
“• 8 to 22 Jan 1956, claimant attended Summer Camp at La Perouse
…
• 22 May 1963, report on overcrowding at Moree Aboriginal Station indicates claimant aged 20 and her daughter Linda (aged 2) living with her grandmother Bertha Saunders
• 1967, claimant married Peter Wayne Duncan at Moree…”
The Unit Assessment found that there was no evidence that the Plaintiff had been removed from her family. It observed that there was a gap in the records for the period when the Plaintiff states she had to go to work (1959 or 1960). It also stated that “her employment is not in question and it is likely that the Manager of Moree Aboriginal Station assisted her to find the job, even though she herself is uncertain about this”.
The Unit Assessment dealt with the Scheme’s approach to employment-related claims. In that regard it provided the following:
“Early in the Scheme, a number of employment-related applications for which there were no corroborating records were determined successful primarily on the basis of a perceived resemblance of the claimants’ characterisation of their employment to ward apprenticeships and a paragraph in the AWB’s 1941 Manual of Instructions to Managers and Matrons of Aboriginal Stations and Other Field Officers which states:
‘It is not desirable that aboriginal children remain in idleness on the Station upon attaining school leaving age. Endeavour should be made to secure suitable employment for them, preferably under the conditions of employment laid down for aboriginal children’ (p 79).
This approach assumed that the APB’s former power to remove and apprentice any Aboriginal child without Court action continued through the 1940s to the abolition of the AWB in 1969. However, as a consequence of 1940 amendments to the Aborigines Protection Act, a child had to become a ward before they could be apprenticed, either by parental consent or a Children’s Court Order and prohibited entry into employment in advance of the school leaving age of 15.
… While the Board did assist youth (and adults) to find employment, records indicate that they were generally free to leave at any time and not subject to the same restrictions and oversight experienced by apprentice wards.
…
Since 2022, employment-based claims have generally not been successful unless they have sufficient features of an indentured apprenticeship to be considered akin to a removal. …
Under this approach, claims arguing apprentice-like conditions in the absence of AWB wardship should consider: …”
(Emphasis in original.)
Thereunder was a checklist of 13 matters, such as type of employment, the issuing of uniforms or travel warrants, age of the claimant and whether schooling was interrupted, Board-supervised training prior to placement, and other matters.
The final paragraph of the Unit Assessment’s analysis concluded as follows:
“The claimant’s employment bears none of the traits of AWB ward apprenticeship. She worked on a property for three months after which she left and returned to her community. She is herself equivocal as to whether the AWB had anything to do with arranging her employment. In fact there is a lack of detail and certainty regarding many details of this employment, which is understandable given her age and the passage of time.”
“There is no evidence of Mrs Duncan being a ward of the AWB or CWD. There is no evidence of a trust fund. As there is no direct evidence of apprentice ward-like employment arranged by the Board there is a presumption against recommending a Stolen Generations Reparations payment.
Reparations are accordingly not recommended.”
(Emphasis in original.)
On 27 June 2025, Legal Aid applied to the Defendant by letter for a review of the Scheme’s refusal of 11 March 2025. The letter included extremely detailed written submissions and enclosed a range of documents, including Moree mob books, Moree Mission documentary evidence and a Department of Education file on “Moree Public School: Assimilation of Aborigines”. It is difficult to imagine a better prepared and more comprehensive submission than the one made on the Plaintiff’s behalf.
Paragraphs 6 to 10 of that submission stated as follows:
“6. Mrs Duncan had grown up living on Moree Mission which was operated by the Aborigines Welfare Board (‘AWB’).
7. Mrs Duncan lived on Moree Mission until she was approximately 16/17 years old. Given Mrs Duncan was born in 1943, she would have likely been removed in the year 1959/1960.
8. Mrs Duncan and family were required to live on the mission and at all times were under the direction and control of the Mission Manager, an employee and agent of the AWB. Mrs Duncan and her family were subject to the strictures and requirements of the Aborigines Protection Act 1909 (NSW) which only applied to Aboriginal people and not non-Aboriginal people. The Act was not repealed until June 1969.
9. The AWB and Mission Managers were still present on Missions during this time and were required to uphold the AWB Station Managers and Matrons Manual Handbook. It was a central task of the Mission Manager to place all Aboriginal children who had finished their education into employment, whether they were wards of the State or otherwise.
10. In short, Mrs Duncan applied for reparations under the SGRS on the grounds that she was removed in the following circumstances:
a. Mrs Duncan was removed from her family and forced to work on a farm called Kelvington in Mungindi.
b. the family who ran Kelvington were the Houston’s.
c. Mrs Duncan is unable to exactly remember how she ended up on the farm, but believes it was organised by the Mission Manager at Moree.
d. Mrs Duncan worked there for approximately three months and that she was required to work all day doing what they wanted. She was fed by the Houston’s and can recall another Aboriginal family called the Naylon’s living on the property.
e. Mrs Duncan was unable to contact her family and had no ability to leave the property. Mungindi is 120km from Moree, Mrs Duncan had no capacity to leave this placement, given her age she cannot recall how she ended leaving the job.
f. Mrs Duncan cannot remember if she got paid for her work.”
(Footnotes omitted.)
The submissions distil several propositions on which the Decision rests.
The first, and the one from which the rest follow, is that the assessor required the Plaintiff to show that she was a ward of the Board, or in a relationship with it akin to wardship. The other grounds claim that the expression “coming into the care of the Board” was read narrowly as confined to wards and indentured apprenticeship; the control exercised by the Board through the Mission Manager was discounted; placement with a white pastoral family was treated as not sufficiently akin to wardship; the absence of Board records was preferred to the Plaintiff’s direct evidence; and it was implicitly assumed that the Plaintiff and her grandmother agreed to the placement.
The Scheme had asserted that the Plaintiff was free to leave Kelvington Farm and that there was no direct evidence the Board organised the employment. The Legal Aid submissions criticise the reasoning on the basis that cl 5.1.1 of the Guidelines provides three alternative gateways to attract an entitlement to compensation, namely that a claimant was:
removed by;
committed to; or
otherwise came to be in the care of,
the Board.
Clause 9.1 requires a recommendation in favour of a payment where there is certainty, strong evidence or strong circumstantial evidence, whilst cll 11.1.1–11.1.5 direct attention to elapsed time, deficiencies in the written record, the importance of oral evidence in the absence of records and in Aboriginal cultural tradition, and the beneficial purpose of the Scheme. Clause 1.8 makes the Guidelines non-binding, permitting departure in the interest of justice and equity.
The Legal Aid submissions argued that one of these gateways, namely “committed to the care of the Board”, answers to formal wardship contemplated by s 7(2) of the Protection Act (as amended by the 1940 Act) and to an order made by the Children’s Court under s 82(d) of the Child Welfare Act 1939 (NSW). The Plaintiff argued that the expression “otherwise came to be in the care of the Board” must, therefore, be broader, extending to any relationship in which the Board was responsible for the care of the child, “care” bearing its ordinary sense of protection or charge. She argued that the Unit Assessment adopted an impermissibly narrow interpretation of “coming into the care of the Board” because it conflated it with “committed to the care of the Board”, when the two are distinct bases of eligibility.
The submissions criticise the decision maker for, effectively, penalising the Plaintiff for the absence of corroborative records in circumstances where the Board’s record-keeping was poor and the Decision concedes the 1959/1960 “gap”, noting that cl 30 of the Board’s “1941 Manual of Instructions to Managers and Matrons of Aboriginal Stations and Other Field Officers” obliged the Manager to keep employment records.
It also contended that the amendments made by the 1940 Act did not confine apprenticeship to wards only, even though the Board was given the power to apprentice wards. Such a narrow finding, it was argued, ignored the Mission Manager’s obligation to place children into employment. The Plaintiff mounted the affirmative case that she was either removed by the Board or came to be in the care of the Board, in that the Board, through the Mission Manager, was responsible for almost every aspect of the Plaintiff’s life; had organised her employment; was obliged to facilitate and supervise it; could inspect the station and terminate the employment; and owed her a duty to assist and maintain her while employed. Furthermore, as to the “justice and equity” catch-all under cll 1.8 and 11.1.4 of the Guidelines, the Plaintiff maintained that a narrow and technical approach to membership of the Stolen Generations would undermine the Scheme.
The Legal Aid submissions were accompanied by several annexures. The Court was not taken to these documents during oral submissions, and no party submitted that they contained material bearing upon the issues beyond the matters dealt with in submissions. I have considered them only so far as is necessary for the disposition of the grounds.
On 25 August 2025, a Briefing Note was provided to the Defendant for the purpose of seeking his approval of the Scheme’s recommendation that the Plaintiff’s application be refused, and to “consider and make determination of this claim in relation to the broader context of work placements, establishing a process with which to assess further similar claims and review requests”. This briefing was specifically in relation to the Plaintiff’s application but was submitted to the Defendant on the basis that it had broader application to further similar applications. In that regard it sought, in substance, a guideline response to be promulgated so that it would govern the treatment of like applications.
The analysis notes what is perceived, by the author of the Briefing Note, to be a difference between the legal arguments presented by the Legal Aid submission and “the Scheme’s intent”, which is “the Government’s response to recommendations from the Unfinished Business Report”.
Under the heading “Key Information” the Briefing Note confirms that a cohort of claims (including the Plaintiff’s) submitted by Legal Aid:
“are for work placements, which the Scheme does not consider as eligible for reparations unless the evidence demonstrates the Board’s coercion and enforcement of a work placement (eg formal apprenticeship, threats of committal unless a work placement was accepted, refusing parents access to their children while on placement)”.
The schedule to the Briefing Note, described as Schedule 133, is a 14-page landscape table which summarises, in the far-left column, the submissions by Legal Aid, and discloses, in the far-right column titled “Comment”, the Independent Assessor’s considered response. Both parties took me to, and emphasised, various parts of that table, in some instances referring to the same content albeit for different purposes. The far-left column, however, is plainly not limited to a summary of the Legal Aid submissions but also incorporates opinions and responses by the author of the Schedule.
The author of Schedule 133, in responding to the Plaintiff’s employment-based claim, observed:
“It is undoubted that the claimant had a terrible experience in isolated employment and being separated from her family for the first time. The point of the SGRS statement was to clarify the differences between employment such as that experienced by the claimant (where she returned home to her home and community after 3 months without penalty) and apprenticeship which was intended to sever connections to family and culture.”
“The available information has indicated to the Scheme that it is likely that the Manager assisted the claimant to find this employment, in keeping with his duties, but that employment of this nature does not come within the ambit of the Scheme, unless it has some of the features of ward apprenticeship.”
“As will be explored further below, this interpretation of the third criterion ‘otherwise came to be in the care of the Board’ ignores the operative part of the phrase ‘otherwise came to be …’ and is therefore problematic. With some reservations, the SGRS agrees with much of the Legal Aid understanding of the high degree of control the AWB and the Station Manager in particular exercised over her life. The original assessment was conducted (as are all applications to the Scheme) in the knowledge and awareness of the Board’s wide-reaching control over all aspects of the life of First Nations people in NSW. The Independent Assessors for the Scheme hold a community perspective, and they have considered the claims with their lived and researched contextual understanding. The Minister has previously considered and rejected arguments that other harms experienced under the Act such as living on an Aboriginal station or reserve under the control of an AWB manager meet the criteria of ‘otherwise came to be in the care of the Board’.”
In addressing the Plaintiff’s argument that the claim should have been approved “in the interest of justice and equity”, Schedule 133 commented that “[t]he Scheme was never designed to question a claimant’s identification as a member of the Stolen Generations”.
The final four pages of Schedule 133, under the heading “Analysis”, provided the bulk of its reasoning. Certain parts of that reasoning should be set forth in full:
“It is unfortunate that the Guidelines were not more specific in their articulation of the eligibility criteria and have not provided definitions of the terms used therein. It should be noted that the Scheme is not legislated and in formulating the Guidelines there was an emphasis on avoiding over-prescriptiveness, in recognition of the Minister’s absolute discretion under the Ex Gratia Payments Policy on which the Scheme is based. However, the Unfinished Business report and the NSW Government Response to Unfinished Business both provide useful guidance on the types of events that should be recognised under the scheme. On the issue of establishing a scheme to grant monetary reparations, the NSW Government response notes:
… The act of removal by, or committal to, the care of the Board will be the basis for the payment and all those removed and placed in homes, fostered or adopted will be eligible.
This would indicate the scheme was established to recognise the significant harms caused by the forcible removal of Aboriginal children who were taken from their families and placed into state or non-state-run institutions, or who were adopted or fostered under policies of assimilation.
Furthermore, regarding employment matters, the NSW Government rejected a recommendation in Unfinished Business to reopen the Aboriginal Trust Fund Repayment Scheme. It appears that a great many people who were unsuccessful under the ATFRS due to their claims falling outside that Scheme’s remit or who did not lodge a claim when that Scheme was operational have since sought redress for such matters through the SGRS. There has been a small number of employment-based matters which have been found successful under the SGRS. Apart from former AWB wards (for whom apprenticeship was superfluous to the assessment), these have been claimants whose records and/or compelling oral evidence indicated that that [sic] their employment took place under apprentice-like conditions.
The choice of terms in the eligibility criteria were intended to reflect the three main ways that people came to be ‘in the care of the Board’. From 1915 to 1940, the APB could legally ‘remove’ children from their families and send them to homes or to employment as apprentice wards without having to take them before a Court. This power was lost in the 1940 amendments to the Act and from that date wardship generally required a court committal (although this also happened in many cases prior to 1940). The last criterion ‘otherwise came to be in the care of the Board’ was meant to cover children who became wards through parental admission to the Board’s control or were subject to informal or illegal arrangements that mirrored the experiences of children in the first two eligibility criteria. In other the [sic] words, the important part of the criteria was not ‘in the care of’ but ‘otherwise came to be’. The focus in these differing criteria was the different paths whereby children ended up as AWB wards or ‘de facto wards’.”
“There is a qualitative and quantitative difference between employment undertaken under AWB apprentice ward conditions and casual employment such as Mrs Duncan’s where she returned to her family and community without penalty after three months. This is not to minimise Mrs Duncan’s trauma. It is simply to iterate that some harms experienced under the Aborigines Protection Act fall outside the Scheme’s intention/eligibility criteria.”
For my part, I consider the dichotomy deployed a little unhelpful, as I am not sure whether the expression “casual employment” is used as a residual category, in contradistinction to the apprenticeship of a ward. If so, it obscures, rather than assists, identifying whether there are any gradations between them and, if there are, how they are to be measured. In saying this, however, I note the 13-point list described at [43] above, which sets out the matters by which the matters by which her claim was in fact assessed.
The Defendant approved, under his own hand, the Independent Assessor’s recommendation in the “Schedule 133 Determinations Report” that the Plaintiff not receive an ex gratia payment under the Scheme.
“Unfortunately, in reviewing your request and the accompanying material, it was determined that your submission did not contain any new information or evidence, as per paragraph 12.2.1 of the Guidelines, which the Independent Assessor or Minister had not already considered. The Guidelines at paragraph 12.2.2 refer to the administrative processes of considering claims, and it was also determined the administrative processes were all undertaken correctly in assessing your claim.
Nevertheless, the Scheme considered it important that arguments put forward by Legal Aid in their submissions be fully considered by the Independent Assessor and the Minister. I regret to inform you that after consideration of these further submissions, your application remains unsuccessful under this Scheme.”
“I would also like to clarify the intent of the Scheme, particularly with regard to those who otherwise came into the care of the Board. This Scheme was established as part of the NSW Government’s response to Unfinished Business, the General Purpose Standing Committee No 3 Report into Reparations for the Stolen Generations. The Standing Committee’s Report and the NSW Government’s response both made it clear that the focus of the Scheme, and the only claims that can be considered under the Scheme, are for children who became Wards or had other similar controls placed over their lives through the powers of the Board. The Scheme is not designed to address the other harms experienced by the community such as employment placements or enforced living conditions on missions or reserves. The inability of the Scheme to acknowledge these matters will be recognised in the final report of the Scheme.”
“HIS HONOUR: Can I just order this in my mind. Am I being asked to subordinate the 22 September letter in relation to the briefing and the minister’s decisions, or to ignore it, effectively?
…
HERZFELD: We would not suggest your Honour should ignore it in the sense that it’s come into the evidence--
HIS HONOUR: Yes, it exists. It’s there.
HERZFELD: --it’s just that in deciding what weight to be given to it in making a factual finding about whether the minister had the state of mind articulated in ground 1, your Honour should give it no weight.”
“HIS HONOUR: What do you say in response to Mr Herzfeld’s submission about the relevance of the 22 September letter on the basis that it’s argued that it was authored by the manager, not the Minister, and was not reviewed by the Minister before it was sent?
DAVIDSON: Well, we accept that the question of the Minister’s reasons is necessarily a question of fact. There’s an approval of the brief that contained the assessment. We say that’s a strong indication in respect of the assessment containing or reflecting the Minister’s reasons.”
“1. The Defendant misunderstood the ‘intent of the Scheme’ in reasoning that ‘the focus of the Scheme, and the only claims that can be considered under the Scheme, are for children who became Wards or had other similar controls placed over their lives through the powers of the Board’, that ‘The Scheme is not designed to address other harms experienced by the community such as employment placements or enforced living conditions on missions and reserves’ and that the Scheme has an ‘inability’ to ‘acknowledge these matters’, and thereby denied the Plaintiff procedural fairness and/or made a decision that was unreasonable or illogical.
2. The Defendant:
a. concluded that the Plaintiff had not ‘otherwise come into the care of the Board’; and
b. in so concluding, misconstrued the expression ‘otherwise come into the care of the Board’ within the meaning of the Scheme Guidelines,
and thereby denied the Plaintiff procedural fairness and/or made a decision that was unreasonable or illogical.”
In his Response, the Defendant denies each of the assertions in these grounds. Further, in answer to the whole claim, the Defendant responds that the Decision is not amenable to judicial review.
Given that both grounds rely upon the same legal bases, I propose first to address the principles which inform the determination of the Plaintiff’s claim, and then to consider each ground seriatim.
As adverted to above, in his Response to the Amended Summons the Defendant maintains that the Decision is not amenable to judicial review. This was on the basis of his argument that judicial review is not available when dealing with the exercise of non-statutory power.
In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23; [2021] FCAFC 213, a Full Court of the Federal Court accepted that an exercise of non-statutory executive power may be susceptible to judicial review on the ground of legal unreasonableness: at [3] (Kenny J), [96] (Griffiths J, Besanko J agreeing at [50]), [118(a)] (Mortimer J), [301]–[302] (Charlesworth J).
An appeal from that decision was allowed on another ground: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10 (Davis). At [7], Kiefel CJ, Gageler and Gleeson JJ declined to answer the “very large question” of whether “any aspect of the executive power of the Commonwealth is conditioned by any requirement of reasonableness”. Edelman J proceeded on the basis that the exercise of non-statutory power could be so conditioned: at [174]–[176]. Steward J determined that it could not: at [248].
Both the Plaintiff and the Defendant in their written submissions took the Court to cases of this Court (and others) where the exercise of non-statutory power was subject to judicial review. It is unnecessary to set them out here.
The parties agreed that, sitting at first instance, I should proceed on the basis that judicial review of the Decision is available on the grounds the Plaintiff advances. I have done so. But I record here the Defendant’s formal submission that judicial review of the Decision is not available should these proceedings ultimately be determined in another place.
The Defendant also accepts that, if the Decision is amenable to judicial review, the Plaintiff has a sufficient interest to seek declaratory relief: Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5 at [32] (Kiefel CJ, Keane and Gordon JJ), [65] (Gageler and Gleeson JJ).
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
“…the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.”
“1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it.
- The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.”
(Citations omitted.)
It is necessary to say something about how these propositions are to be used. In SZBEL at [31], the High Court cautioned against elucidating the content of procedural fairness by setting up a dichotomy between conclusions not obviously open on the known material, on the one hand, and the mental processes of decision-making, on the other. First, it is “far from clear” that those two categories encompass all possible kinds of case. Secondly, there is “a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged”. I have kept that caution in mind and have employed the qualifications below as an aid to identifying what fairness required in this case.
The fundamental principle is extracted at [82] above, namely, that the party liable to be directly affected must be given the opportunity of being heard. In the present case, that principle resolves into the question posed by the first of the Somaghi qualifications, namely, was the Plaintiff’s mind directed to the critical issues or factors on which the decision was likely to turn so that she might deal with them? That is a question of fact, to which I return at [113]–[123] below.
It is uncontroversial that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”: SZBEL at [26]. Where the complaint is one of undisclosed adverse material, those circumstances “must include an appropriate identification of the material which is said to be adverse and in respect of which the person affected was denied an opportunity to comment”: ALR17 v Minister for Home Affairs [2019] FCAFC 182 (ALR17) at [36] (Nicholas, Griffiths and Gleeson JJ).
The Plaintiff relied on MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 285; [2020] FCAFC 215 (MQGT) at [27]–[28] (Jagot, Kerr and Anastassiou JJ) for the proposition that a denial of procedural fairness arises “where the plaintiff was not put on notice of the relevant path of reasoning”. In her oral address, Ms Davidson SC candidly acknowledged that the case was not on all fours with the present. I am not persuaded that MQGT stands for as broad a proposition as the Plaintiff contends.
The appellant in that case, who was unrepresented, made brief but clear representations that he would be killed if he returned to South Sudan. Nothing before or during the hearing put him on notice that those representations were doubted. But the Tribunal gave Australia’s international non-refoulement obligations only slight weight for the sole reason that it found his claims “unconvincing”. At [27], the Full Court relevantly stated:
“… The Tribunal’s general invitations to the appellant to say whatever he wished during the hearing did not discharge the Tribunal’s obligation to give the appellant procedural fairness by putting the appellant on notice that his claims in this regard were open to doubt. Nothing occurred before or during the hearing that would have put the appellant on notice that these claims were in doubt, yet the sole reason for the Tribunal giving international non-refoulement obligations only ‘some’ or slight weight was its conclusion that these claims were ‘unconvincing’.”
(Emphasis added.)
The reasoning in MQGT in this regard is an application of the second Somaghi qualification and SZBEL, because the Tribunal rejected the applicant’s account without indicating that his account was in issue. To my mind, it does not imply a free-standing obligation to put the subject on notice of the “relevant path of reasoning” a decision-maker proposes to adopt. That would in practice require a decision-maker to circulate a draft of the reasons before making the decision. Such an obligation would be inconsistent with the dictum of Lord Diplock approved in Alphaone and MAC.
But that does not answer the Plaintiff’s case, because her complaint is not that an adverse conclusion was drawn from her material without warning. She argues that her mind was never directed to the criterion upon which the Decision turned. That falls within the first Somaghi qualification and is a question of fact.
“‘[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made’ such that ‘[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.’”
(Footnotes omitted.)
The threshold to establish that a decision is unreasonable in this sense is high: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26]. It is similarly high in challenging “the exercise of an extremely broad non‑statutory executive power”: Davis at [176] (Edelman J). This threshold guards against the risk of allowing review for jurisdictional error to “slide impermissibly into merits review”: Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2025] NSWCA 49 at [79] (Payne JA, Gleeson JA and Griffiths AJA agreeing).
The bar to establish a complaint of legal unreasonableness may be higher still where “the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste”: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118–119 (Gibbs J), quoted with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 8 (Wu Shan Liang) at 276 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Much of the Plaintiff’s argument relied upon the decision of Robertson J in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452 (Jabbour). His Honour was there concerned with whether an error in construing ministerial non-statutory guidelines could constitute a species of legal unreasonableness. The following principles can be drawn from that decision:
if a decision-maker, albeit not bound to apply a policy or guideline, purports to apply it, and in so doing misconceives or misunderstands it and so does not, in fact, apply the policy or guideline, there may be an error of law. It may be an example of an illogicality in, or misapplication of, the reasoning adopted by the decision-maker: at [89];
a review of reasonableness in the exercise of non-statutory power concentrates on an examination of the reasoning process by which the decision-maker arrived at the decision. By focusing on the reasoning process, it does not depend upon the identification of statutory scope and purpose: at [102];
by reference to the relevant guidelines, which bear on the nature of the power being exercised, legal unreasonableness can be made out by reference to result, that is, that no reasonable decision-maker could have arrived at such a decision: at [102]; and
relevant guidelines may perform, in the non-statutory context, a function comparable to the scope and purpose of a statutory power: at [102].
The Plaintiff submitted that Jabbour broke no fresh ground in this respect, and pointed to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 () at 208, where French and Drummond JJ relevantly stated:
“The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.”
Two features of this passage should be noted. The first is that it proceeds upon the premise that the policy is “a relevant fact which the Tribunal is bound to consider”. The second is the consequence said to follow, where the failure to take into account a relevant factor results in an improper exercise of “the statutory power”. Consistently with that analysis, in determining the appeal their Honours remarked at 211 that it was “not necessary to go so far as to say that the Tribunal’s approach in this regard was manifestly unreasonable”. It sufficed that the Tribunal “failed to have effective regard to those factors which it was bound to take into account in the assessment process”. In other words, Gray was decided on the basis of a failure to consider a mandatory relevant consideration, not on the basis of legal unreasonableness.
The Plaintiff also relied on Po*’oi v Minister for Immigration and Citizenship (2025) 314 FCR 376; [2025] FCAFC 192 (Po**’***oi) at [65], where a majority of the Full Federal Court (Kyrou and Needham JJ) took Robertson J’s analysis in Jabbour at [89] to support the proposition that an instance of legal unreasonableness is where:
“the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it.”
“In our opinion, if the Minister expressly or impliedly states that a particular matter is sufficient in itself to dispose of the case – that is, the Minister identifies the matter as a proper basis for disposing of the case – but the Minister actually or constructively fails to consider that matter, then the Minister’s decision would be legally unreasonable and thus vitiated by jurisdictional error.”
(Emphasis added.)
“His Honour was there astute not to state any proposition in terms as definitive as those preferred by the appellant. In any given case, it might be that a decision maker’s failure properly to take account of a non-mandatory consideration that he or she has identified as material or dispositive reflects jurisdictional error in the form of legal unreasonableness or illogicality (of a kind recognised by authority). Legal unreasonableness, though, ‘…is inherently sensitive to context [and] cannot be reduced to a formulary’: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 567 [59] (Gageler J). Its chameleonic nature is such that the court should refrain from recognising the appellant’s contention as though reflective of some binding point of principle applicable in all cases.”
(Emphasis in original.)
His Honour’s remarks may be thought to carry persuasive force in circumstances where the analysis in both Gray and Jabbour proceeded on the understanding that such a failure to consider a non-mandatory matter “may” give rise to a reviewable error. In any event, a subsequent Full Court (Charlesworth, Kyrou and Neskovcin JJ) in Luong v Minister for Immigration, Citizenship and Multicultural Affairs (2026) 315 FCR 159; [2026] FCAFC 6 (Luong) at [46] approved the statement of principle in Po*’oi set out at [99] above, and I accept it. The Defendant did not submit that Luong or Po’*oi were wrongly decided, but he disputed their application to the present context.
In his oral address, Mr Herzfeld SC submitted that the line of authority emanating from Gray rests upon a statutory foundation. He submitted that the reasoning is that the statute conferring the power is to be construed as contemplating that the executive may make policies to guide those who exercise the power, and as requiring the decision-maker to consider the policy. The policy thereby becomes a mandatory relevant consideration, and a decision-maker who misconstrues to such an extent that what is considered is “not the policy but something else” has failed to consider a mandatory relevant consideration. That, he submitted, is a classical ground of review, but one which “rests on the construction of the empowering provision”, and which is “just unavailable here … because there is no statutory foundation for the decision which is being made”. On that analysis, no question of materiality arises.
There is considerable force in this submission. It is supported by the terms of the passage in Gray set out at [97] above, and by the basis upon which that appeal was in fact decided. Whether and how the reasoning in Gray can be transposed to a scheme which has no statutory foundation is unclear and I was not taken to an authority which resolves that question. However, I need not decide it because, for the reasons which follow at [144]–[150], I have concluded that the construction of the Guidelines applied by the Defendant was correct. It is therefore unnecessary to determine whether the principles in Gray and Jabbour are confined in the manner the Defendant contends.
The parties join issue on whether the Defendant misconstrued the Guidelines which he purported to apply. The Defendant submits that it will not be sufficient to make out a complaint of legal unreasonableness on the basis that the Defendant merely erred in construing the Guidelines. The error must be such that no reasonable decision-maker could have construed them in that way. In her written submissions in reply, the Plaintiff argues the question for determination is not whether the Defendant’s misconstruction was “reasonably open” because the construction of guidelines in the exercise of non-statutory executive power admits of only one right answer, which is for the Court to determine.
The Plaintiff argues that the Defendant misunderstood the “intent of the Scheme” in reasoning that the only claims for which the Scheme provides are those of children who became wards or had similar controls placed over their lives by the Board, but that the Scheme is not designed to address other harms including employment placements or enforced living conditions on missions and reserves.
Whether the Defendant reasoned in this manner is a question of fact. In her written submissions, the Plaintiff acknowledged that neither the Unit Assessment nor the 22 September letter is a formal statement of reasons, such that the Court is limited in drawing inferences from any omissions from those documents in determining the reasoning process: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [25].
The Defendant made his decision on the basis of the Briefing Note and its annexures. His approval of the recommendation was indicated on, and his signature subscribed to, the “Schedule 133 Determinations Report”. On this basis, I am prepared to accept that the Briefing Note and the Schedule 133 document, including the comments and analysis in the far-left column and the Independent Assessor’s comments in the far-right column, are the best evidence of the Defendant’s reasons for making the Decision. I am not persuaded that the 22 September letter should be given weight in determining this question in circumstances where there is no evidence the Defendant ever sighted it or approved its contents. So far as concerns the criteria which the Defendant applied, little turns on this, because the Briefing Note and Schedule 133 express substantially the same reasoning as the 22 September letter. It is significant, however, for the Plaintiff’s argument that the Defendant reasoned that the Scheme had an “inability” to “acknowledge these matters”. Those observations appear only in the letter and nowhere in the Briefing Note or Schedule 133. As I explain at [137] below, the material before the Defendant was to the contrary effect.
The Plaintiff’s submission founded on Blatch v Archer does not persuade me otherwise. That principle concerns the cogency to be attributed to the evidence before the Court and upon the inferences properly drawn where a party fails to adduce evidence which it was within its power to adduce. It does not supply a basis for attributing to a decision-maker the contents of a document which he did not author, see or approve.
At par 59 of her written submissions, the Plaintiff’s primary position was that the Defendant’s misunderstanding of the intent of the Scheme was erroneous and, because she was not put on notice that this particular understanding was to be relied upon, she was denied procedural fairness. Her alternative submission at par 60 was that the Decision was legally unreasonable because of the misunderstanding.
During exchanges between the Court and Ms Davidson SC, it became clear that the fulcrum of this argument was said to be a failure to put the Plaintiff fairly on notice of the analytical framework ultimately applied by the Defendant on the internal review. This resolves into a question of fact: was the Plaintiff on notice of the criteria to be applied?
The Defendant answers this argument by pointing to the letter sent to the Plaintiff by the Manager of the Scheme on 11 March 2025 (the relevant terms of which are extracted at [36] above) as well as the Legal Aid submissions made in support of the application for internal review. The 11 March letter is anodyne and plain-spoken. It advised the Plaintiff, whose application concerned her employment at Kelvington Farm, that:
the Scheme applied to a subset (“particular group”) of Stolen Generations survivors;
that subset included those who were forcibly:
(a) removed by; (b) committed to; or (c) otherwise came to be in the care of,
the Board and placed in a children’s home, orphanage or other institution or adopted and fostered;
in relation to employment especially, the Board could only apprentice wards over whom the Board exerted control in relation to their employment; and
unlike wards, the employment records of other young First Nations people in the 1950s and 1960s showed that they had been able to leave employment which the Board assisted them to find. The Scheme could not find that the Plaintiff had been forcibly separated from her family, made a ward of the Board or apprenticed by it, nor that any trust account had been established to control her wages.
The Plaintiff says that this was comprehensive and informative but not sufficiently so. She argues that the Defendant needed to inform her that the “third” criterion (“otherwise came to be in the care of the Board”) required the Plaintiff to demonstrate wardship or de facto wardship. The Plaintiff added that the statements concerning facts which she had not established did not illuminate the criterion to be applied.
I disagree. First, I do not consider that the Defendant was required to inform the Plaintiff that she could satisfy the so-called third criterion only by establishing wardship (de jure or de facto). The third criterion is not, in terms, concerned with employment. The Plaintiff fashioned her claim as one of employment. The 11 March letter, when read holistically, pointed out that:
a claim so framed would have to establish that the employment was attended by the care or control of the Board;
wardship was the circumstance in which such care or control was ordinarily found; and
neither wardship nor anything equivalent to it appeared from the material.
Secondly, the letter made plain why that was important. It distinguished employment undertaken by wards, whose employment and wages the Board controlled, from employment which the Board merely assisted young First Nations people to find, and which they were free to leave. That distinction identified what would take an employment-based claim within the Scheme and what would disqualify it.
Thirdly, the letter identified both the criteria for eligibility and the deficiency in the Plaintiff’s evidence in failing to meet them.
Fourthly, the 11 March letter was not the Plaintiff’s sole source of information. By the time she applied for an internal review, she also had access to the Unit Assessment obtained through the GIPA request. That document amplified the reasons why the Plaintiff’s evidence fell short of the benchmark criteria to establish Board control and compulsion.
Finally, I accept the Defendant’s submission that the comprehensive submission provided by Legal Aid put paid to any argument that the Plaintiff did not have a fair opportunity to address the criteria being applied. The question is not the source of her understanding but whether she had, and was able to take, the opportunity to meet the case against her. The Legal Aid submission demonstrated a complete mastery of the applicable criteria and how the Plaintiff was said to fall within them. It addressed not merely the third criterion but the residual “catch-all” provision, inviting the Minister to accept the claim on the basis of justice and equity.
The doctrinal crux of the Plaintiff’s argument here is that the Defendant failed properly to construe the Scheme’s intent, and that the failure amounted to legal unreasonableness. Both parties developed this argument fully in oral address.
The Plaintiff’s argument proceeded as follows:
the Defendant’s reasoning rested upon the conclusion that the Scheme was only responsive to wards (de facto and de jure);
that conclusion has no foundation in the Guidelines or the Response Report, neither of which refers to wardship;
the intent of the Scheme admits of only one correct interpretation; and
the error was jurisdictional and sufficiently material to warrant the relief being sought.
I do not consider that the intent of the Scheme, as distinct from the precise boundary of the third eligibility criterion (dealt with at [144]–[150] below), is seriously in doubt. The intent is to be inferred from what the Scheme provides, and from what it does not provide.
Clause 1.5 of the Guidelines (set out at [14] above) is clear that there will be a standard payment of $75,000 “to Stolen Generations survivors found to have been removed by, committed to, or otherwise come into the care of the Board”. Clause 11.1.4 describes the purpose of the Scheme as being “to provide reparations to Stolen Generations survivors who were removed by, committed to, or otherwise came to be in the care of the Board under the policy of assimilation” (emphasis added). Those concluding words locate the Scheme’s purpose in the severing of Aboriginal children from their families under the policy of assimilation, and not in the wider range of harms which the Protection Act inflicted.
The Response Report is to the same effect. Appendix A states that “[t]he act of removal by, or committal to, the care of the Board will be the basis for the payment and all those removed and placed in homes, fostered or adopted will be eligible”. It then enumerates the types of loss and harm for which the Scheme “will not provide payments”.
The harm which the Plaintiff describes, in being taken as a young woman from her family and community and placed in domestic service on a remote farm, is undoubtedly a serious one. But the Scheme contemplates that there will be persons who identify, correctly, as members of the Stolen Generations who will nonetheless be ineligible to receive reparations, subject only to the discretion of the Independent Assessor or the Minister to depart from the Guidelines “if they are satisfied that it is in the interests of justice and equity to do so”: Guidelines at cl 1.8.
The parties join issue on whether, as the Plaintiff urges, the Scheme admits of one correct interpretation as to its intent. In doing so, the Plaintiff aligns the Scheme to a piece of legislation. The Defendant submits that the framework fits ill with an exercise of executive power conditioned by guidelines which are not mandatory. For the reasons given at [107] above, it is unnecessary to resolve that question.
Ground 2 asserts that the Defendant concluded that the Plaintiff had not “otherwise come into the care of the Board” and, in so concluding, misconstrued the expression within the meaning of the Guidelines, thereby denying her procedural fairness or making a decision that was legally unreasonable.
This ground was addressed in a more abbreviated manner in the parties’ submissions. The Plaintiff relied on her submissions in respect of Ground 1 in support of Ground 2. Ground 2 nonetheless raises a distinct question, namely, whether the Defendant misconstrued the third criterion. My conclusions at [104], [107] and [139] above proceeded on the basis that the Defendant applied the correct construction. What follows are my reasons for that conclusion.
The central question is what work the third criterion does. Is it apt to include a child who lived on a Board-managed mission and for whom the Mission Manager arranged employment?
The Plaintiff’s construction is that the three criteria are alternatives:
“removed by” answers the exercise of the Board’s power of removal;
“committed to” answers to formal wardship, whether by parental admission under s 7(2) of the Protection Act (as amended by the 1940 Act) or by order of a Children’s Court under s 82(d) of the Child Welfare Act; and
“otherwise come into the care of the Board” must, therefore, be broader than either of the preceding criteria. It extends to any relationship in which the Board was responsible for the care of the child, that is, in the sense of protection. The Plaintiff’s contention is that to read this third criterion as requiring wardship (either de jure or de facto) collapses it into the second criterion and deprives it of independent operation.
I accept that the third criterion cannot be construed in a way which would render it otiose. It is undoubtedly less confined than the other two criteria, but it does not follow that it extends as far as the Plaintiff contends. I reject the Plaintiff’s construction for three reasons.
First, the criterion is not “was in the care of the Board” but “otherwise came to be in the care of the Board” (emphasis added). The operative words describe a transition into the Board’s care rather than a pre-existing condition of living under the Board’s administration. The analysis in Schedule 133 set out at [64] above made this point: “the important part of the criteria [sic] was not ‘in the care of’ but ‘otherwise came to be’”. In my view, that reading is correct.
Secondly, the context of the provision supports the Defendant’s reading. Each of the first two criteria describes an event by which a child was taken from their family and brought into the Board’s care. The word “otherwise” indicates that the third criterion is directed to the same subject matter, namely, how the child came into the Board’s care, but by means other than removal or committal. Clause 11.1.4 of the Guidelines confirms this by identifying the purpose of the Scheme as providing reparations to those who came within the criteria “under the policy of assimilation”.
Thirdly, the Plaintiff’s construction is too wide. Every Aboriginal child who resided at a Board-managed mission, station or reserve lived under the control of a Manager who was the Board’s officer and, in that sense, was at least indirectly under the care or charge of the Board. The Plaintiff’s reading would see every such child satisfy the third criterion by the fact of residence alone. That cannot be right, because the other two criteria would be rendered superfluous. It would be inconsistent with the statement in Appendix A to the Response Report that “[t]he act of removal by, or committal to, the care of the Board will be the basis for the payment and all those and placed in homes, fostered or adopted will be eligible” (emphasis added), which makes removal indispensable. Nor would it comport with the 22 October 2024 letter (extracted at [32] above) by which the Manager of the Scheme informed the Plaintiff that harms “such as living on an Aborigines Welfare Board controlled Mission, station or reserve are outside the Scheme’s eligibility criteria”.
“was meant to cover children who became wards through parental admission to the Board’s control or were subject to informal or illegal arrangements that mirrored the experiences of children in the first two eligibility criteria.”
(Emphasis added.)
The latter part of that sentence is fatal to Ground 2. The Schedule 133 analysis expressly contemplated that a claimant might satisfy the third criterion without formal wardship, by establishing informal or unlawful arrangements which mirrored the experience of children who had been removed or committed. Far from being a narrow construction, it is arguably a generous one, and it accords with the construction I have set out above. The Plaintiff relies on the statement in that analysis that “[t]he focus in these differing criteria was the different paths whereby children ended up as AWB wards or ‘de facto wards’”. But that sentence must be read in context. The reference to “de facto wards” is a reference to the informal arrangements described in the preceding sentence. It does not impose a requirement of wardship in disguise.
It follows that the Defendant did not misconstrue the expression “otherwise came to be in the care of the Board”. Properly construed, it requires a coming into the care of the Board in a manner which mirrors removal or committal, that is, one attended by the control or compulsion which characterises the first two criteria, though arrived at informally rather than by a formal act of removal or committal. The Defendant applied that construction. Because that construction is correct, no question of legal unreasonableness or procedural unfairness thereby arises. As stated above at [105]–[107], it is therefore unnecessary to resolve the question of whether the Guidelines admit of only one correct construction.
The Plaintiff’s alternative submission was that even if the Defendant’s construction was correct, she supplied sufficient evidence to meet the third criterion so construed. She pointed to her removal from her family, her placement in employment with a white family, and her inability to leave Kelvington.
The Defendant, with considerable justification, complains that this part of the Plaintiff’s argument falls impermissibly into merits review, and that none of the accepted grounds for impeaching a decision is engaged. I agree. It is not for me to determine whether the Plaintiff came within the Scheme. The question is whether the conclusion which the Defendant reached was one open to him.
It clearly was. His reasoning discloses no failure to address the correct question, nor any reliance upon extraneous or irrelevant matters. Whilst the view may be contestable, it cannot be said that no reasonable decision-maker could have arrived at it. Nor are the reasons of a decision-maker to be scrutinised in an over-zealous search for error, or construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 271–272.
I reach this conclusion for the following reasons:
it was open to the Defendant to find that, although the Plaintiff left Moree Mission and was transported to Kelvington, how and why that occurred was not established. Her own evidence was that she did “not really remember” how she came to work on the farm. The Scheme accepted that the Mission Manager, as an officer of the Board, had likely assisted her to find employment in accordance with his duties. But it was open to the Defendant to conclude that assistance of that kind did not, without more, amount to removal by, or a coming into the care of, the Board. The Unit Assessment recorded that young people so assisted were “generally free to leave at any time and not subject to the same restrictions and oversight experienced by apprentice wards”;
it was open to the Defendant to conclude that the Plaintiff’s inability to leave the farm was attributable to its geographical remoteness rather than to control or confinement exercised by or on behalf of the Board; and
there was no evidence as to the circumstances in which the Plaintiff left the farm. She was unable to recall them. I do not hold that against her, because the Guidelines require that the passage of time and the frailty of recollection be taken into account: at cll 11.1.1–11.1.3. But the consequence is that the Defendant did not have before him positive evidence that her departure was other than at the conclusion of a placement, or of her own volition.
The Plaintiff’s evidence rose no higher than a three-month placement on a remote farm far away from her family, in circumstances where the Board’s Manager had probably assisted her to find the work. Clause 9.1 of the Guidelines required the Independent Assessor to be satisfied of “certainty, strong evidence or strong circumstantial evidence” before recommending a payment. It was open to the Assessor, and to the Defendant, to conclude that the material supplied by the Plaintiff fell short of that standard.
Had I concluded that the Defendant erred in the manner put against him, the Plaintiff would still have had to establish that the error was material. Because I have rejected both grounds, the question does not arise. However, because the point was argued, I will briefly address it in the alternative.
Materiality asks whether the decision that was in fact made could have been different had the decision-maker complied with the condition that they had been found to have breached. The question first requires a determination of “the basal factual question of how the decision that was in fact made was in fact made”, which is determined on the balance of probabilities: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 (MZAPC) at [38]. That counterfactual then falls to be determined “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”: MZAPC at [38]. The Plaintiff bears the onus of proving the historical facts necessary to enable the Court to be satisfied of the realistic possibility that a different decision could have been made: MZAPC at [39]. The threshold is not demanding. The question is whether the decision “could, not would, ‘realistically’ have been different had there been no error”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14] (emphasis in original).
On the procedural fairness limb of each ground, the question is what could realistically have followed had the Plaintiff been given notice of the criterion said to be determinative and an opportunity to address it. The standard of reasonable conjecture is undemanding, and there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome where a party has been denied the opportunity to present evidence or make submissions upon an issue requiring consideration: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ), [127] (Edelman J). Had I found that the Plaintiff had been denied procedural fairness, I would have found it material.
In relation to the legal unreasonableness limb, the question is what a decision-maker who understood the Scheme and construed the Guidelines correctly could realistically have decided. In this regard, the Defendant submits that the Plaintiff’s evidence was equivocal about how she came to work at Kelvington and did not reach the standard required by cl 9.1 of the Guidelines, so that no different outcome was realistically available. But the discretion conferred on the Defendant by cl 10.1 of the Guidelines is expressed in absolute terms, and cl 1.8 permitted him to depart from the Guidelines altogether if satisfied that it was in the interests of justice and equity to do so. There is force in the Defendant’s characterisation of the strength of the Plaintiff’s evidence. However, given the breadth of the discretion with which the Defendant is vested, and the low bar required to establish the materiality of an error, I would have been prepared to find that the error was material.
I foreshadowed at [5] above that it is unnecessary to resolve the question of parliamentary privilege raised by the Plaintiff’s proposed reliance on the Unfinished Business Report. What follows are my reasons in that regard, and an explanation of why no corresponding difficulty arises in respect of the Response Report.
The Bill of Rights 1689 has force in New South Wales by operation of s 6 of the Imperial Acts Application Act 1969 (NSW): Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales (2026) 119 NSWLR 80; [2026] NSWCA 20 (DPP v President) at [83] (Leeming and Stern JJA and Griffiths AJA). Article 9 provides as follows:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
It is not to be read as an ordinary statute, but in light of the body of law which has built up around it, because it is a provision of “the highest constitutional importance” which “should not be narrowly construed”: DPP v President at [82], [88]–[89]; Pepper (Inspector of Taxes) v Hart [1993] AC 593 (Pepper) at 638 (Lord Browne-Wilkinson).
The prohibition against “questioning” extends generally to the drawing of inferences from a proceeding in Parliament: Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333 (Lord Browne-Wilkinson). However, the prohibition is not at large. In DPP v President at [102], the Court of Appeal observed that “[t]he question is one of substance, and not every inference that may be formulated by an imaginative lawyer amounts to questioning or impeaching contrary to Art 9”. Where material is tendered simply “to establish what was said”, that is “well removed from the impeaching or questioning to which Art 9 is directed”: at [103].
The Plaintiff accepts that the tabling of the Unfinished Business Report was a proceeding in Parliament, and that Art 9 prevents this Court from questioning it. She contends that using it to identify the purpose and scope of the Scheme does not involve questioning it, and that in any event it falls within the recognised exception permitting parliamentary material to be used in construing legislation.
The Defendant and the President contend that her proposed use requires the Court to draw inferences as to what the Committee intended, and that the exception is unavailable. It permits recourse to what was said in Parliament because Parliament has gone on to legislate, so that the Court gives effect to the parliamentary words rather than questioning them: Pepper at 638. But Parliament here made no enactment. The Scheme was established by the Executive. And in New South Wales, the legislature itself has prescribed the limits of the exception because s 34 of the Interpretation Act 1987 (NSW) sanctions reference to parliamentary material only in the interpretation of an Act or statutory rule.
The President submitted, and the Plaintiff accepted, that this question should not be determined if the proceedings can be resolved without doing so. I accept this.
It is not necessary to determine this question because in reaching my conclusions on Grounds 1 and 2, I have not relied on the Unfinished Business Report. I have not used it to construe the Guidelines or to identify the “intent of the Scheme”. Nor have I drawn any inferences from that document. The references to the Unfinished Business Report at [5] above and in the passages extracted elsewhere in these reasons do no more than record its existence and the material to which the decision-maker referred: DPP v President at [103].
The Plaintiff has failed to make out either ground for relief. The proceedings must therefore be dismissed. Both parties agreed that, whatever the outcome of the proceedings, there should be no order as to costs.
The order of the Court is:
The Amended Summons is dismissed.
**********
Coversheet, [160] - Corrected medium neutral citation to Nathanson v Minister for Home Affairs
Duncan
Minister for Aboriginal Affairs and Treaty
Both positions find support in the authorities. Gray and Jabbour proceed on the footing that a decision-maker who purports to apply a policy and misconstrues it, so that what is applied “is not the policy but something else”, may thereby fall into reviewable error. This implies that the construction of the policy is a matter for the Court. But both of those cases are careful to caution that such a misconstruction may give rise to error. Po*’*oi requires that it be such as to amount to a constructive failure to consider the matter. That imports a threshold of seriousness beyond mere error.
It is unnecessary to resolve this question because it is not dispositive of the outcome in this case. If the Plaintiff’s position is right, then the question is whether the Defendant’s construction was correct. If the Defendant is right, then the question is whether the construction was reasonably open. Because I have determined that the Defendant’s construction was not merely open but correct, the Plaintiff fails on either basis.
I also accept the Defendant’s submission on this point because the Plaintiff’s complaint is directed against the internal review. As the High Court observed in SZBEL at [35], the point at which to begin identifying the issues in relation to a decision under review will usually be the reasons given for that decision, and unless some further issue is identified, the issues will ordinarily be those which the original decision-maker identified as determinative against the applicant.
The 11 March letter disclosed as determinative the absence of evidence from the Plaintiff that she had been forcibly separated from her family or that the Board had exercised over her the control which it exercised over its wards. No different issue arose on the internal review. The Defendant refused the application on the same basis as the Scheme did. The Plaintiff was entitled to approach the review on the understanding that this was the issue upon which the decision would turn. She did so. The Legal Aid submissions are directed, at length, to wardship, de facto wardship and to the control exercised by the Board through the Mission Manager.
I am therefore well satisfied that the Plaintiff had her mind directed to “the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it”: Alphaone at 591. She dealt with them. Nor has the Plaintiff identified any material adverse to her which was taken into account and upon which she was not heard: ALR17 at [36]. There was no denial of procedural fairness in this respect. I reject this part of Ground 1.
Having considered the parties’ submissions, I have reached the following conclusions:
the Guidelines should not be treated or interpreted with the same exactitude as a piece of legislation. That is so a fortiori where, as internal ministerial documents concede, the Guidelines are neither drafted with precision nor free from interpretive difficulties;
the Defendant was not bound to follow, and was not constrained by, the Guidelines (though he purported to apply them) and could exercise his broad and seemingly unfettered discretion to make an ex gratia payment up to the uppermost limit of the Scheme; and
the Scheme, being remedial in character, attracts a beneficial construction, as the Plaintiff submits. Its beneficial purpose undoubtedly informs the way in which the eligibility criteria are to be applied, and the Guidelines expressly so provide: at cll 11.1.1–11.1.3. But a beneficial approach to the application of the criteria cannot enlarge the categories of eligibility which cll 1.5 and 5.1.1 of the Guidelines define, still less overcome the exclusions explicated in Appendix A to the Response Report. The Scheme benefits only those who pass through the gateway of familial separation effected by, or into, the care of the Board. It does not benefit every person who suffered under the Protection Act.
Having considered the Guidelines, the Briefing Note, Schedule 133 and the Schedule 133 Determinations Report (as well as the 11 March letter), I remain unpersuaded that the kind of error necessary to warrant judicial intervention exists.
The Plaintiff’s argument proceeds on a foundational proposition that the Defendant has introduced an unjustified impediment, namely, the requirement of wardship, as a precondition to finding eligibility. I do not accept that analysis.
The Plaintiff, whose case is that the touchstone of the Scheme is removal from family, says that she experienced this through the vehicle of employment. That is the paradigm through which her application was to be assessed. This invited the Defendant to consider the circumstances in which something akin to compulsory employment could have occurred, particularly in the absence of any evidence from the Plaintiff establishing that compulsion. The obvious vehicle through which such a circumstance could be established (almost as if a deeming provision) was wardship. The mere fact of wardship would, without more, supply the indicia of compulsion and meet the Scheme’s eligibility criteria.
Failing that, the Plaintiff would need to independently establish the existence of factors which demonstrated some control or compulsion which caused familial separation. I consider that the resort to the incidents of wardship was deployed as a heuristic for the existence of compulsion but did not foreclose other ways for compulsion and control by the Board to be established. It was not erected as a barrier to eligibility. Wardship was identified, correctly in my view, as the prevailing circumstance, but not to the exclusion of other circumstances.
In point of fact, the Plaintiff could establish neither wardship nor other coercive conduct. The Defendant was left with nothing other than the bare fact that the Plaintiff was on Moree Mission, she was relocated to Kelvington Farm where she worked for three months, she could not leave at will (owing to its geographical remoteness) and may or may not have been paid. There was nothing more.
Insofar as the Plaintiff’s argument is that the Defendant misconstrued the Scheme by finding that it had an “inability” to address circumstances other than those provided for in the eligibility criteria, it cannot be accepted. As the Defendant correctly submits, the only reference to the Scheme’s “inability” to “acknowledge these matters” is in the 22 September 2025 letter, which I have found carries no weight as evidence of the Defendant’s reasons. By contrast, the Briefing Note was explicit that “[c]onsistent with the Ex Gratia Payments Policy, the Minister has full discretion in determining whether a payment will be made, having regard to all of the circumstances”. This statement was consistent with cl 1.8 of the Guidelines.
There is nothing in the Briefing Note or the Schedule 133 analysis which suggests the Defendant proceeded upon a misapprehension of the Scheme’s intent. The Schedule 133 analysis in particular provided detailed reasons as to why some indicia of control or compulsion were required for an applicant to establish that they fell within the criteria established in cl 1.5 of the Guidelines.
In these circumstances, I am satisfied that the Defendant did not misunderstand the intent of the Scheme and applied the Guidelines on an interpretation which was legally open and, for the reasons given at [144]–[150] below, correct. Accordingly, I reject the balance of Ground 1.
Ground 2 also fails for an independent reason. Its premise is not made out. The Plaintiff’s complaint is that the Defendant confined the third criterion to wardship. He did not. The Schedule 133 analysis states that the third criterion:
I deal finally with the further basis upon which the Plaintiff’s application was put, namely, that if the eligibility criteria were not satisfied, the Defendant should nevertheless approve the claim in the interests of justice and equity, as cl 1.8 of the Guidelines contemplates. That submission was addressed in the Schedule 133 analysis. The Guidelines confer a discretion in the widest terms. Where the matter of which a decision-maker is required to be satisfied is “a matter of opinion or policy or taste”, it may be very difficult to show that the decision could not reasonably have been reached: Buck v Bavone at 118–119. The discretion furnished by cl 1.8 of the Guidelines is of that character. Its exercise (or non-exercise) is not impugned by the Plaintiff upon any ground known to judicial review.
Ground 2 fails.
The parties agreed that the Response Report stands in a different position. While it was also tabled in the Legislative Council pursuant to Standing Order 233(1), the copy in evidence is not the copy laid before the House. Mr Joshua Scotland, a solicitor employed by Legal Aid who acts for the Plaintiff, obtained it from a website maintained by the New South Wales Government, in contradistinction to the Unfinished Business Report, which he obtained from the website of Parliament: Affidavit, Joshua Clement Scotland, 16 April 2026 at pars 4, 5.
The subsequent publication of a document by the executive government, on a website maintained by that government, is not a proceeding in Parliament. In British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; [2011] FCAFC 107 at [51], a Full Court of the Federal Court (Keane CJ, Downes and Besanko JJ) held that such publication “cannot be regarded as ‘incidental’ to the transacting of the business of the House or of a committee”, because there is “nothing to show that the subsequent publication was not the decision of officers of the executive government taken independently of the views of the legislature”. The officers who published it were “strangers to the Senate”: at [55]. The copy so published is a separate, publicly available copy which does not attract the protection: Sofronoff v ACT Integrity Commission [2025] FCA 1565 at [59] (Abraham J). Those cases concerned s 16(2) of the Parliamentary Privileges Act 1987 (Cth), which has no analogue in this State, but because the reasoning turns upon the character of the act of publication (rather than upon the statutory text), it applies equally to Art 9.
I am satisfied that the copy of the Response Report in evidence was published by the executive government independently of the Legislative Council, and that Art 9 does not preclude the parties or the Court from having regard to it and construing it. This reflects the position agreed between the parties.
I record my gratitude to Mr Wood of Counsel, who appeared for the President, for the assistance he has provided the Court.
[2025] FCA 1565
[2006] HCA 63
(2020) 269 CLR 439
(2011) 195 FCR 123
(1976) 135 CLR 110
(1994) 49 FCR 576
(2021) 288 FCR 23
(2023) 279 CLR 1
(2026) 119 NSWLR 80
(2022) 276 CLR 519
(2019) 269 FCR 438
(2024) 280 CLR 321
(2026) 315 FCR 159
(2020) 271 CLR 550
(2013) 249 CLR 332
(1996) 185 CLR 259
(1994) 50 FCR 189
(2020) 282 FCR 285
(2021) 273 CLR 506
(2022) 276 CLR 80
(2015) 258 CLR 173
(2025) 314 FCR 376
(1991) 31 FCR 100
(2006) 228 CLR 152
(2018) 264 CLR 541