First, was the Minister required to personally consider all of the material without assistance by officers of the department?
47 As has been noted, where the Minister personally (and not by delegate) forms the required state of satisfaction for the purposes of s 501CA(4), the statutory scheme requires the Minister himself 'to consider and understand the representations received': Viane at [13]. The submission advanced for Mr McQueen on the present application was to the effect that the Minister had to himself read the materials and form a personal view concerning their significance. It may be accepted that the Minister had a duty to engage in an active intellectual process with respect to the representations in order to perform his statutory task: Omar at [34]-[41]. It may be further accepted that where the Minister considered that he should have regard to particular matters in the representations in forming the required state of satisfaction and those matters depended upon factual claims then the Minister was required to make findings as to those factual matters: Viane at [14]. However, the submission advanced for Mr McQueen was to the effect that if the Minister did not delegate the making of the decision under s 501CA by forming the required state of satisfaction then personal performance of that task meant that the Minister could not be aided in undertaking that task by the Submission from his department and he had to undertake the whole deliberative task himself.
48 In Tickner v Chapman (1995) 57 FCR 451, a Full Court of this Court was concerned with an application for judicial review of a decision made by a Minister acting personally under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) which required the Minister to consider a report and any representations attached to the report as well as such other matters as the Minister thinks relevant before making a decision.
49 Black CJ observed that the Minister must personally consider the report and any representations attached to it: at 462. His Honour then reasoned as follows at 462-463:
It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s 10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act - the explicit requirement that the Minister consider the representations - that removes the process under s 10 from the general rule that a Minister is not expected to do everything personally: see the observations of Brennan J in FAI Insurances Ltd v. Winneke [1982] HCA 26; (1982) 151 CLR 342 at 416 adopting Lord Reid's comments in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 at 72; cf. O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 11-12 per Gibbs CJ. The express requirement that the Minister consider the representations also gives rise to a more precisely defined duty binding on the Minister than the Minister's duty to consider matters in connection with satisfying himself or herself that a grant of land should be made under s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976: cf. Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 30-1 per Gibbs CJ, at 37-9 per Mason J and at 63-5 and 65-6 per Brennan J.
The requirement of substantial and non-delegable personal ministerial involvement is consistent with the evident intention of s 10, as I have described it earlier in these reasons, that interested persons will have an effective opportunity to provide information and to express opinion concerning important issues involved in the consideration of an application under s 10(1) and that the decision-maker, the Minister, shall make an informed decision on the questions in issue, having considered the representations of interested persons.
It must also be remembered that the obligation to consider, imposed separately upon both the reporter and the Minister, is an obligation to consider each representation. The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.
50 Then, dealing with the facts, his Honour said at 464-465:
… As I have said, the consideration of a representation involves an active intellectual process directed at that representation and again the point must be made that s 10 is explicit in its requirement that not only must the reporter give consideration to the representations but the Minister must do so as well. A report, written after due consideration of the representations by the reporter, might or might not, 'reflect' them. In either event, the section makes it clear that the Minister must personally consider the representations and it is the representations that must be contemplated, not another document which is thought by someone else 'adequately to reflect' the representations.
This does not mean that the Minister is denied the assistance of a staff member in the process of considering the representations. A staff member might, for example, sort the representations into categories. He or she might put together all the representations that are in common form so that they can be considered together. In some cases, a summary of technical supporting material, such as legal and financial documents, might be provided and it would certainly be in order, in my view, for a competent staff member to assist the Minister by making sure that supporting technical documents were what they purported to be. I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it.
Examples of the sort of representation that would need to be read personally may be found amongst the 400 or so representations forwarded with, and notionally attached to, Professor Saunders' report. Some of these make important points by the use of photographs and the form of some representations conveys meaning in other ways. Such representations need to be seen to be 'considered'.
Whilst, then, a Minister may certainly have assistance for the purpose of considering representations, they must be truly considered and the process adopted in the present case, relying as it did upon Ms Kee's opinion about the adequate 'reflection' of the representations, was insufficient. I therefore conclude that the trial judge was correct in holding that the obligation imposed by s 10(1)(c) of the Act to consider the representations had not been fulfilled.
51 Burchett J summarised with the evidence concerning the way in which the report and representations were considered by the Minister at 474-475 of his Honour's reasons in the following manner:
The report of Professor Saunders was received in draft form at the office of the Minister in Canberra during the evening of Thursday 7 July 1994. The Minister was not there, and the draft was transmitted by facsimile to him at his electoral office in Sydney. This copy of the draft included a representation received from the State Minister for Transport and an anthropological report prepared by Dr Deane Fergie which formed part of the representations of the Aboriginal Legal Rights Movement, but without the confidential annexures to that anthropological report. It was not until the following day, that is Friday 8 July 1994, at about 9.45 am, that a complete copy of the report of Professor Saunders, together with the accompanying representations, was delivered by courier to the Minister's Canberra office. These facts appear clearly enough from the affidavit of the Minister's adviser, Ms Kee. This affidavit does not suggest that any copy of the representations received on 8 July was forwarded to the Minister, who remained in Sydney up to the time when he made the decision on Saturday 9 July 1994 at about 11.15 am. Ms Kee indicates that it was necessary to send a declaration in the appropriate terms to him by facsimile, and to receive a return facsimile with his signature for her to take to the Government Printer at about midday for gazettal. The declaration was in fact published in the Commonwealth Gazette on Sunday 10 July 1994. Although it is clear that the Minister did not see the representations, apart from the two documents sent to him by facsimile, Ms Kee (she says) 'advised the Minister that the report of Professor Saunders reflected the matters which were raised in the representations attached to the report'. She also told him that 'there was nothing contained within (the confidential annexures to the report of Dr Fergie) which did not support the information contained in the Saunders Report concerning the nature of the significance of the area to the Ngarrindjeri women'. In addition to giving this evidence, Ms Kee told the Court that the Minister's handwriting appeared on his copy of the report of Professor Saunders and the representation from the State Minister for Transport.
In cross-examination, it became clear that Ms Kee had not herself read all of the representations, and there was some vagueness as to just what she had read.
52 His Honour then set out the finding of the primary judge to the effect that the Minister had not complied with the statutory obligation to consider the representations. As to that finding his Honour concluded at 476-477:
Having reviewed the evidence for myself, as it appears in the appeal books, I respectfully express my unhesitating concurrence in the Judge's finding that the representations were not considered. They were certainly not seen, with the exceptions I have already indicated; and the evidence makes it plain that such information about them as the Minister received by telephone was wholly inadequate to enable it to be said, as a matter of fact, that he had, in any reasonable sense of the word, 'considered' the representations. On many matters, it was Ms Kee who considered them, to the extent that she did so, and what she communicated to the Minister was her own value judgment about them, and about the validity of the conclusions Professor Saunders had reached in relation to them.
In my opinion, it was not open to the Minister to hand over to Ms Kee his responsibility to consider the representations. His task under s 10, the Act makes clear (by s 31), is not to be delegated. Undoubtedly, he may receive the assistance of staff, but ultimately it is for him, in a case involving s 10, to fulfil the requirement expressed in the statute by the words 'has considered the report and any representations attached to the report'. Those representations are there because the Act imposes a duty upon the reporter, by s 10(3)(b), not only herself to 'give due consideration to any representations', but also 'when submitting the report, (to) attach them to the report'. So the Act makes provision to ensure that the Minister will receive the representations. That is not an idle formality, but in order that he may consider them. His obligation to do so is expressed in the very same form of words which requires him to consider the report itself - he is required to consider 'the report and any representations'. The one verb 'has considered' has equally for its objects both the report and the representations; it can hardly have a different meaning with respect to the representations from that which it has with respect to the report.
What is it to 'consider' material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to 'consider' a report, Laskin J, speaking for the Supreme Court of Canada, said: 'Certainly, the board must have the report before it': Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged 'to read for himself all the relevant papers', and that it 'would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department', he also made it plain that the summary must 'bring to his attention' all material facts 'which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial'. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
53 Kiefel J (as the Chief Justice then was) found the factual position to be as follows (at 494):
The Minister had read the report of Professor Saunders and likely also the representation of the State Minister. It was not clear whether he had read the report of Dr Fergie and the various letters provided to him. The evidence disclosed that this was the extent of documents physically provided to him. It was not suggested that he had actually read the representations. There were over four hundred of them. They had only arrived on 8 July, the day before the Minister signed the declaration, and the Minister had a busy schedule. The emergency declarations would expire on 10 July 1994. A member of his staff had however gone through them and said in evidence that she had discussed the subject and contents of them with the Minister. His Honour found, however, that her description of the discussion was 'vague and nebulous'. With respect to the written submission from the Ngarrindjeri women, Professor Saunders provided a general, but not detailed, account of it in her report and provided an opinion upon it. The Minister did not read the contents of the envelope which was sealed and marked with the caution that the contents were not to be read by men. The process then undertaken was one whereby the female staff member read the contents of it and advised the Minister that there was nothing in Professor Saunders' report which did not have a basis in the detailed representation. The issues raised by the Ngarrindjeri women were elevated to importance in Professor Saunders' report and they were, his Honour found, relied upon heavily by the Minister in the exercise of his power to make the declaration.
54 Her Honour then deal with what was required by the obligation to consider and found at 495:
To 'consider' is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
55 Later, at 497 her Honour said:
I have earlier said that the Minister may seek the assistance of his staff. A 'consideration' of the representations does not in my view require him to personally read each representation. But it may be as well for him to do so, for if his staff are to convey what is contained within them, they must do so in a way which provides a full account of what is in them. If they do not, the Minister will not have considered something he is obliged to, and in this respect the observations of Gibbs CJ in Peko-Wallsend at 30 as to what results are apposite. It may vitiate his decision.
56 It can be seen that all members of the Court found that the Minister was required to consider the representations personally. Although the Minister could be assisted to a degree, ultimately he could not act upon a summary of that which he was required to consider because he was required to form his own view of the representations. Further, where the representations that he was required to consider depended upon factual matters, the task of considering the representations required him to form his own view of the facts.
57 Each member of the Court in Tickner v Chapman referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. In that case it was claimed that the Minister was bound to take into account certain material in reaching his decision where that material showed that the position had changed since the provision of a report as to matters which the Minister was required to consider. The Minister was said to have failed to take that material into account. In that context, Gibbs CJ (in adding a few remarks to his general agreement with the reasons of Mason J) said at 30-31:
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
58 As to the same point, Mason J said at 37-38:
During argument, counsel for the Minister sought to raise an additional point, the effect of which was to deny that the Minister had failed to take into account the respondents' submissions. It was argued that where submissions are made to a Minister and summarized by his departmental officers in a way that omits certain details, and the Minister then makes a decision on the basis of that summary, it cannot be said that the Minister has failed to take those omitted details into account. He is entitled to delegate to his staff the function of deciding what weight, if any, should be given to a particular fact, and in the present case there was no evidence that the departmental officers had failed to consider those facts.
This submission, which was neither raised in the courts below nor listed as a ground of appeal in the Notice of Appeal to this Court, proceeds on the assumption that the Minister had power to delegate part of his decision-making function under s 11 to his Department and that he exercised this power by splitting the function, leaving his staff to decide what facts or matters would be taken into account. Section 76(1) of the Act authorizes the Minister, by an instrument of delegation signed by him, to delegate to a person any of his powers under the Act, other than those in Pt IV and the power of delegation. A power, when so delegated and exercised by the delegate, shall, for the purposes of the Act, be deemed to have been exercised by the Minister (s 76(2)). The Act contains no other express power of delegation. The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others …
However, there is nothing in the nature, scope and purpose of the power conferred by s 11, or in the context in which it is to be found, that makes it susceptible to this treatment. The Minister's function under the section is a central feature of the statutory scheme … [The features of the Minister's power] combine to compel the conclusion that the Minister's function under s 11 is to be exercised by him personally unless he delegates it pursuant to s 76.
There is no evidence that the Minister delegated his decision-making function under s 76 or otherwise. And in any event the appellants should not be permitted to raise for the first time in this Court an argument which, if raised at first instance, might have been answered by evidence. Accordingly, the submission must be rejected.
59 Brennan J dealt with the role that may be performed by departmental officers in the following way at 65-66:
The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision.
60 As to the other two members of the Court, Deane J generally agreed with Brennan J and Dawson J agreed with Mason J. As was observed in Williams v Minister for Justice and Customs of the Commonwealth of Australia [2007] FCAFC 33; (2007) 157 FCR 286 at [27] (Gyles, Allsop and Buchanan JJ), the 'most influential statement in Peko-Wallsend is contained in the judgment of Mason J'.
61 It can be seen that the extent to which the Minister might draw upon assistance from departmental officers in making his personal decision was not part of what the Court was required to determine in Peko-Wallsend. The issue in that case concerned the significance of the fact that the department did not draw to the attention of the Minister matters that the Court found the Minister was required to take into account (even though they were not to be found in the report on which the Minister might otherwise act in making his personal decision). It was not suggested that the Minister had done so by relying on some form of briefing from his department. Therefore, the Court was not dealing with the issue that arose in Tickner v Chapman and arises in the present case which concerns the extent to which an obligation to consider the contents of particular documents (and make findings based upon those contents) which the Minister must undertake personally can be assisted by officers from the Minister's department.
62 There is a further important distinction evident from the reasoning in Viane. It is between the source of factual material that the Minister may bring to bear in undertaking any fact finding that may be required in order to undertake the personal deliberative task entrusted to the Minister (on the one hand) and the making of those findings, the consideration of their significance and the attribution of weight to matters arising from those findings (on the other hand). In Peko-Wallsend at 66, Brennan J cited the following from Bushell v Secretary of State for the Environment [1981] AC 75 at 95:
To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise.'
63 Therefore, it is entirely appropriate for officers of the Minister's department to brief the Minister as to technical and factual matters known to the Department. However, there is an important line to be drawn when a decision-making power is being exercised by the Minister personally. In such cases, Parliament has seen fit to allow or require the deliberative task to be performed by the Minister. A statutory power of that kind is exceeded if the Minister delegates all or any of that deliberative responsibility. In a case like the present, that has particular significance because an exercise of the power under s 501CA(4) by a delegate of the Minister is amenable to merits review, but a personal exercise of the power is not. In either case reasons are required. Plainly, where the Minister acts personally, it is the Minister who is to be accountable for the performance of the responsibility to consider the representations in order to undertake the particular deliberative task required by s 501CA(4).
64 Other judges have dealt with the role of departmental officers in the making of decisions by Ministers in a range of contexts.
65 In Minister of Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia v Douglas (1996) 67 FCR 40, a Full Court comprising Black CJ, Burchett and Kiefel JJ dealt with a claim that the Minister had failed in fact to adequately consider relevant representations in making a personal decision under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Applying the decision in Tickner v Chapman it was observed that the Minister had a duty to consider the representations that had been made and that duty was 'a personal non-delegable task, and a failure to carry it out may result in the Minister's decision being set aside': at 60.
66 Their Honours concluded at 63 that the state of the evidence was as follows:
It showed that there was a task which would take some days to complete, and that there were available only a few days, if that, for the Minister to do so. His adviser had been working on the one set of the representations over Easter, and there was nothing to indicate the Minister was in his office, where the representations were located, until 5 April, the day before the declaration was made. There was no discussion with the adviser who had read them, and no other apparent means by which the Minister could have informed himself of their content. In these circumstances, a conclusion that the Minister most likely did not have access to the representations, and had no time to consider them was open. The critical factor, it seems to us, which emerges from the evidence is the strong suggestion that the Minister simply had insufficient opportunity to read the representations. And there was no cogent evidence to suggest otherwise.
67 In Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521, Buchanan J differentiated between cases where the decision was required to be made personally and instances where there was permitted delegation (at [98]-[99]), placing the decision in Tickner v Chapman in the former category.
68 In Williams v Minister for Justice and Customs of the Commonwealth of Australia, the members of the Full Court said by reference to Peko-Wallsend that reliance upon a departmental summary 'is clearly not inconsistent with a requirement for personal knowledge but, where attention to the facts is a necessary element in the performance of a Minister's administrative decision-making role, the necessary facts must be sufficiently disclosed': at [24]. It was said that the reasons of Gibbs CJ, do not support any proposition that 'the Minister may be left in ignorance of relevant facts or may simply rely on the advice or recommendations of others where relevant facts are not revealed': at [25].
69 To like effect is the reasoning of Rares J in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 at [28]-[29] where his Honour said (referring to Peko-Wallsend):
A full and accurate summary of all material matters and facts ordinarily would enable a minister to discharge a function which legislation required be performed personally by the minister. A minister who acted on such a full and accurate summary would not have delegated any part of the decision-making process to the officials who prepared the summary. If, on the other hand, the summary or other material provided by the department or the minister's advisers omitted a material fact, then the minister would not make a decision on the basis of what parliament required him or her to take into account. Thus the minister would not perform the very function which parliament intended be performed … Indeed, depending on the volume of material, a full and accurate, but succinct, summary of material may assist a minister properly to perform the function of exercising the discretion personally confided upon him or her by the statute.
Where a statute requires a minister to exercise a discretion personally and the material put before him or her by the department fails to draw to his or her attention a relevant fact which is not insignificant or insubstantial, a valid decision cannot be made because the minister will not have before him or her all relevant material … If a department were to determine which facts or matters are provided to the minister for him or her to take into account to exercise such a discretion, then the decision-making function will be bifurcated impermissibly, because the department will have assumed a delegation of power which the statute did not permit: namely, the power to decide what facts and matters the minister may take into account. That bifurcation is not permitted where the statute requires the minister personally to exercise the discretion …
(citations omitted)
70 In ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569, Stewart J expressed a similar view at [59]:
It would not be unreasonable for the Minister to rely on a summary of the relevant facts furnished by the officers of their Department. No complaint could be made if the departmental officers, in this summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to their attention a material fact which they are bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that they will have failed to take that material fact into account and will not have formed their satisfaction in accordance with the law.
71 In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, the Minister argued that in respect of his personal exercise of a similar power to that exercised in the present case that he was entitled to rely upon the department's summaries of underlying material and also that he had some familiarity with the cases having made previous decisions. For those reasons he submitted that the time that he had spent considering whether or not to cancel the visas of the applicants 'could not be determinative': at [30] (Griffiths, White and Bromwich JJ). As to that submission, the Full Court held at [61]:
In addition to the features of the statutory scheme just identified, it may be accepted that, despite the personal nature of the power, the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including have them prepare summaries of information for review by him. There are, however, at least three qualifications to that proposition:
(a) any such summary which is materially deficient may give rise to an inference that the decision-making process was not properly conducted by the Minister …;
(b) the use of a departmental summary may not be appropriate when what is sought to be summarised is a substantive argument (as opposed to an assertion of fact). Attempts to summarise material of this kind may be fraught, because the manner of the summary may cause some of the substantive force which the document may otherwise have had to be lost; and
(c) the Minister's entitlement to have regard to a summary or submission prepared by his Department must take into account any statement or indication in such a document which advises the Minister of the need for him or her personally to consider relevant information in a document which is summarised, as is the case here in respect of the Department's submissions concerning both [applicants].
(citations omitted)
72 In that case, it appears that the Minister was presented with documents that had some similarity to the brief provided to the Minister in the present case. However, in that case, the time available to the Minister to consider the materials was extremely limited: at [123]-[127]. The Full Court concluded that the Minister had 'insufficient time to engage in the requisite active intellectual process'. In doing so, the Full Court made an assessment that 43 minutes was available to the Minister to make the decision and 'that 43 minutes represents an insufficient time for the Minister to have engaged in the active intellectual process which the law required of him in respect of both the cases which were before him': at [129].
73 Drawing these authorities together, it appears that in a case like the present the extent of assistance that may be obtained from departmental officers is confined. There appear to be five relevant propositions that can be derived from the cases. First, there is a material distinction between the kind of assistance that may be obtained from departmental officers in undertaking the required deliberation and the kind of assistance that may be provided in preparing draft reasons. There can be no delegation of the deliberative task itself. It must be undertaken by the Minister personally. The nature and extent of the deliberation that must be undertaken will depend upon the particular statutory provision. However, whatever the legislation specifies as to the nature and extent of deliberation, a personal exercise of the power requires the Minister to perform the whole of the deliberative task. Second, when it comes to the expression of the reasons of the Minister, the Minister may adopt as the Minister's own reasons a draft prepared by an officer of his department provided the draft reflects the Minister's own reasons. Third, where the Minister's task requires the consideration of representations made, the Minister must consider the representations personally and in most instances that will require a consideration of the representations themselves (either because the deliberative obligation requires their personal consideration or because the detail and nuance of such representations is apt to be lost through any attempt to summarise them with the consequence that the Minister would not be personally informed by the actual content of the representations in undertaking the required deliberation). Fourth, where it is necessary to make findings as to factual matters relied upon to support representations, the Minister may rely upon a summary of those factual matters provided that it is materially complete and accurate. Fifth, unless the Minister is confined to only considering the representations (which is not the present case), the Minister may rely upon his department as the source of additional technical and factual information that the Minister may then bring to account in undertaking his personal consideration.
74 There is consistency in these propositions because they all reflect the need for the Minister to personally perform the whole of the deliberative task.