(4) The briefing notes and attachments do not identify any decision of, or other manifestation of political will by, the Executive that the claimed land be used for the purpose of nature conservation (national park) when the claim was made. For example, paragraph 2.8 of the first briefing note referred to a report of senior executives of NPWS in 1985. This can only be a reference to Mr Hitchcock's report of 1985. Paragraph 2.8 said this report demonstrated that senior executives of NPWS had identified the claimed land as part of an area needed for a national park, which was said to evidence a "future likely need" when the claims were made culminating in the Jervis Bay REP 1996. First, the reference to "future likely need" indicates that the author (and thus the Minister) did not consider that Mr Hitchcock's report of 1985 could sustain a conclusion that the claimed land was needed for the purpose when the claims were made. Secondly, where a decision-maker relies on a summary of a document material to a decision then it is necessary that the summary accurately reflect the salient matters contained in the document ( Peko Wallsend at 30-31 and 66 and Tickner v Chapman (1995) 57 FCR 451 at 476F - 477B and 497D). This report did not involve senior executives of NPWS in identifying a need for a national park at Jervis Bay in 1985. The report identified the possibility of the reference of a proposal for a national park (which proposal had not been formulated at the time) as one of five options to improve conservation in the area. Mr Hitchcock was the sole author of the report.
137 The indications against this characterisation of the second briefing note are insufficient to lead to a contrary view. The references to "a Government decision" about, and the Executive not having determined, likely need or need, construed in context, are not concerned with the potential distinction between a decision of the Executive and a manifestation of political will by the Executive or, for that matter, any aspect of the process of finding facts for the purpose of s 36(1)(c) and, thus, s 36(8). Nor can the paragraphs be construed as meaning that an investigation after a claim has been lodged may or may not disclose the existence of a need or likely need in existence when the claims were lodged. That would be unexceptionable and must occur under s 36(5) for each and every land claim involving s 36(1)(c). Such a meaning could not be characterised as inconsistent with anything said by the Court of Appeal. The reference to the "process" having commenced before the claims were made follows immediately on a paragraph referring to the pivotal decision being made ten years after the claims were made. This, as noted, is in circumstances where the certificates relate only to the assertion of need, not likely need.
138 These conclusions do not involve converting mere questions of fact for the Minister to determine into jurisdictional error. The misdirection concerned the meaning and operation of s 36(8)(b) in a manner directly relevant to the issue of the certificates. Nor do they involve reading the second briefing note with an "an eye keenly attuned to the perception of error" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). They fairly construe the second briefing note as a whole, recognising the key role this briefing note played in the Minister's decision to issue the certificates as disclosed by the third briefing note and the Minister's letter to the Minister for Aboriginal Affairs.
139 The propositions in the second briefing note about the meaning and operation of s 36(8)(b) are inconsistent with the statutory scheme contained within s 36 of the ALR Act as explained above. If applied, they would disengage s 36(8) from the essential temporal restriction in the definition of claimable Crown lands in s 36(1). They would make the result of any land claim dependent on an opinion by the Minister about the status of the claimed land at any time, rather than the time when the claim was made. Parliament, however, weighed up the potentially competing interests of the State and land councils and chose to establish a scheme in which the progressive reduction of the amount of land set aside for Aborigines caused by past government decisions would be redressed. The propositions do not recognise that Parliament, through the ALR Act, established a scheme of redress the very purpose of which was to ensure that land would be transferred to a land council if within the definition of claimable Crown lands when the claim was made. The purpose of s 36(8) is to enable the Minister conclusively to certify the status of the land if so satisfied by reference to s 36(1)(b1) or (c). Under this scheme it would be wrong for such land not to be transferred by reason of a need or likely need that arose only after the claim was made. Section 42 of the ALR Act, referred to in paragraph 5.2 of the second briefing note Minister's letter to the Minister for Aboriginal Affairs in support of the propositions, supports the opposite conclusion. Lands vested in an Aboriginal Land Council cannot be resumed or appropriated (even with compensation) because the statute expressly recognises in its long title that land is of "spiritual, social, cultural and economic importance to Aborigines". The statutory scheme is not consistent with the purpose of s 36(8) being to ensure that any claimed land could be made immune from the risk of transfer if the Minister decided the land was needed or likely to be needed for an essential public purpose at any time.
140 The character of this error in the exercise of the actual function under s 36(8)(b) was such that, as noted, it does not matter whether the Minister could or did conclude at any time that the claimed lands were needed for the essential public purpose of nature conservation when the claims were made. The function under s 36(8)(b) miscarried because the Minister issued the certificates on the basis of an incorrect premise about the relevant power. It is not possible precisely to identify how that error affected each aspect of the decision-making process other than to observe that the error was fundamental to the power and must be inferred to have materially affected its exercise. Part of the problem with the misdirection is that, when making the decision under s 36(5), the first briefing note (and thus the Minister in signing it) expressly contemplated the issue of certificates under s 36(8)(b). As there is no challenge to the validity of the Minister's refusal under s 36(5) it is sufficient to observe that there are at least two reasons why the Minister's state of satisfaction under s 36(5) cannot protect the certificates under s 36(8)(b). First, because the certificates were the immediate product of jurisdictional error in the exercise of the function under s 36(8)(b). Secondly, because s 36(8)(b) and thus the misdirections associated with it were in contemplation when the Minister refused the claims under s 36(5). The particular way in which the function miscarried was conducive to reliance on material that could not be logically probative of the substance of a statement in accordance with s 36(8)(b).
141 Although the Land Council characterised the misdirection of the statute found above as taking into account an irrelevant consideration, it correctly submitted that these jurisdictional errors overlap ( Yusuf at [82]). This error was fundamental to the decision-making process under s 36(8)(b). It is neither necessary nor possible to deal meaningfully with the balance of the Land Council's claims about asking the wrong questions, failing to consider relevant matters and considering irrelevant matters, as I have found that the statutory function miscarried in an essential respect. It is appropriate, however, to deal with some of the other claims made by the Land Council, albeit as briefly as possible.