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[1996] FCA 1509
General information, not legal advice.
Federal Court of Australia
1996-05-28
Black CJ, Kiefel JJ
Original judgment source is linked above.
The application of the rule requires, as the passage from Pincus J's judgment discloses, that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel, 308. The question then is what inferences were open on the evidence.
51. Mr McLaughlin was unable to say from his knowledge whether the Minister had read the representations. The evidence disclosed that a copy of the report was sent by facsimile transmission to the home of the Minister on the evening of 31 March 1994, and the original report, together with the representations, was collected by Mr McLaughlin on the following day, Good Friday, and placed in the Minister's office. Mr McLaughlin read them from 1 April "through to 5 April", but not on Sunday 4 April. The representations were voluminous, being contained in five lever arch files. There was no evidence as to the Minister's whereabouts until at least 5 April when, it appears to have been assumed, he was in his office, available to attend to correspondence with the parties.
52. As a step in the resolution of the question whether the Minister had read the representations, his Honour looked to those parts of the s13 reasons we have set out above. On one view these reasons might be taken to assert that the Minister had considered the representations. This, in the absence of assistance from his staff, would mean that he had actually read them. But, as his Honour found, Mr McLaughlin's evidence showed that one could not place any weight on the s13 reasons, for he had said:
"I think the section 13 statement was generated
on the basis of - this is material that the
Minister has seen at some stage in his
consideration of the decision. But not all of
that material would have been physically in
front of him in the period immediately up to 6
April."
His Honour also observed that the Minister had little opportunity or time in fact to have undertaken what was a large task, one which had occupied Mr McLaughlin for most of the Easter period.
53. Of the other factors which Carr J referred to, it was submitted that his Honour was in error as regards one, and accorded too much weight to another. His Honour referred to the fact that "the Chaney report was separated from the representations and forwarded separately both by fax and courier to the Commonwealth Minister". The evidence of Mr McLaughlin was that a copy had been sent by facsimile on 31 March, but not that the original was also sent direct to the Minister without the representations. The original was not separated from the representations, and was received by Mr McLaughlin and conveyed to the Minister's office. His Honour did not say what he drew from the fact, as he understood it, that the representations had been separated from the report, although it may be that he understood it to bear upon the likelihood of the representations being read. But what the evidence did in any event disclose was that the Minister did not himself ever receive the representations, and there was no evidence which placed the Minister where they were located. His Honour also placed some reliance upon what he saw as the "very careful manner" in which Mr McLaughlin, in his affidavit, distinguished between the Minister having made the first emergency declaration "after having received and considered the material described above" and the Minister simply having "made his decision" to make the final declaration. It was submitted that all that could be gleaned from this is that Mr McLaughlin was unable, with respect to the latter occasion, to say what the Minister had done, for, as he explained in oral evidence, he simply did not know.
54. If that is all which can fairly be drawn from the language chosen by the witness, what then was the state of the evidence? 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. The s13 reasons did not, given the evidence of Mr McLaughlin, deserve any weight. The conclusion for which Mr and Mrs Douglas contended was persuasively open. That the Minister had insufficient time and did not read the representations gained further support from his failure to adduce further evidence. His Honour was in our view correct in holding that there had not been the necessary consideration of the representations.
55. His Honour ordered that the decision of the Commonwealth Minister made on 6 August 1994 be set aside. That is clearly the course which must follow the failure to comply with the requirements of procedural fairness and the requirement of s10(1)(c) of the Commonwealth Heritage Act that the representations be considered. His Honour postponed the effect of that order to allow time for the State and Mr and Mrs Douglas to make representations and for a decision to be made whilst the land remained undisturbed. The parties are now familiar with the materials, save perhaps for the contents of Dr Sullivan's report, which ought to be provided. No doubt arrangements to preserve any confidentiality properly claimed for it will be made as, of course, they should be. On a similar basis we would hold that whilst the appeals should be dismissed with costs, his Honour's order should now be varied so that the order setting aside the Minister's decision should take effect six weeks from the date of this judgment. It is not necessary to deal with the arguments of counsel for the State in support of the notice of contention.
Minister of Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia
Malcolm Mcdonald Douglas and Valerie Anne Douglas and Francis Djaigween, Frank Sebastian, Mathew Gilbert and Joe Bernard [1996] FCA 1509
Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 Cons
Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 Cons
Norvill v Chapman [1995] FCA 1726; (1995) 133 ALR 226 Cons
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Cons
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Refd
Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 Refd
Mobil Oil Australia Proprietary Limited v Commissioner of Taxation (1963)
[1963] HCA 41; 113 CLR 475 Refd
Chapman v Tickner (1995) 55 FCR 316 Not Foll
South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 Cons
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Refd
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342 Refd
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Cons
Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 Refd
Hot Holdings Pty Ltd v Creasy (1996) 70 ALJR 286 Refd
Kentucky Fried Chicken Proprietary Limited v Gantidis [1979] HCA 20; (1978) 140 CLR 675
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Cons
Lebanese Moslem Association v the Minister for Immigration and Ethnic
9. On 14 February 1994, the Commonwealth Minister had appointed the Honourable Frederick Chaney to report to him with respect to the application, and to meet with the parties with a view to resolving the dispute, a process for which s13(3) of the Commonwealth Heritage Act makes provision. The nomination of a reporter was an essential step, if a declaration was to be made (see s10(1)(c) of the Commonwealth Heritage Act), but it was also required of the Commonwealth Minister as a duty under the Act: Tickner v Chapman (473) (Norvill v Chapman 249); Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183. Mr Chaney subsequently, on 3 March 1994, published a notice inviting interested persons to furnish representations with respect to an application "on behalf of aboriginals seeking the preservation and protection from further injury of a significant aboriginal area in the vicinity of a proposed crocodile farm near Broome in Western Australia". In the meantime he had met with the solicitors for the State and Mr and Mrs Douglas. At this meeting, his Honour found, it was agreed that Mr Chaney was to attempt mediation, and if that was unsuccessful he was to proceed to the report stage. Material submitted by one party would be made available to the other party, as would any information provided in confidence during the mediation if the party providing it had asked it to be taken into account for the purposes of the report.
28. It could scarcely be doubted that both the State and Mr and Mrs Douglas had interests such that a duty to afford natural justice arose before the Minister exercised the power under the Commonwealth Heritage Act to make a declaration having the effect of severely limiting the uses to which the land could be put for a substantial period. It would only be if the statute clearly excluded the common law requirements that the duty could be held not to arise: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584; Annetts v McCann (1990) 170 CLR 596, 598. Mr Willheim, counsel for the Minister, submitted that where a statute makes provision for the procedures to be followed, including the right to make representations following public notice, as s10 does, no further requirements can be engrafted on the statutory scheme. But, as was pointed out by Mason CJ, Deane and McHugh JJ in Annetts v McCann at 598, an intention to exclude is not to be inferred merely from the presence in the statute of some rights which may be considered to be commensurate with some of the rules of natural justice (and see also Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, there referred to). The question, as their Honours explained, is not whether the rules of natural justice require an extension of the rights already conferred by the statute, but whether its terms display a legislative intention to exclude, relevantly, the common law right to be heard in opposition to a potential decision prejudicial to a party's interests. Moreover, the intention to exclude must be disclosed by "plain words of necessary intendment" and is not to be assumed from "indirect references, uncertain inferences or equivocal considerations": Annetts v McCann at 598 and the cases there cited.
(This comment was referred to with approval in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578). And it is of note that his Honour went on to add this qualification:
"...If the decision-maker intends to take
account of some new matter, not appearing in the
report of the recommending body, and the party
has had no opportunity of dealing with it, the
decision-maker should give him that opportunity:
Minister for Aboriginal Affairs v Peko-Wallsend
Limited [1986] HCA 40; (1986) 162 CLR 24".
In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 it was observed that not every departure from the rules of natural justice would result in a new trial being ordered. One may also conclude that a decision subject to review will not be quashed on proof of breach of the rules if it would be futile to quash it. In the context of litigation, their Honours in Stead (145) cautioned against too ready a denial of a new trial on a basis which assumed that the result must inevitably be the same. In their Honours' view it is not easy for an appellate Court to satisfy itself that what appears to be a plain denial of natural justice could have had no bearing on the outcome of a trial on issues of fact. In the context of many administrative decisions, often involving value judgments and policy considerations, any useful assessment of such a question would in our view be impossible.
It is not necessary to comment in any detail upon the unsatisfactory nature of this document. His Honour did so. It does not provide that which s13 requires. It amounts to little more than an incantation of the words in s10, combined with a general reference to a bundle of material. And it states the Minister's conclusions, not his reasons: cf Kentucky Fried Chicken Proprietary Limited v Gantidis [1979] HCA 20; (1978) 140 CLR 675.
(1990) 170 CLR 596
(1986) 5 NSWLR 338
(1987) 163 CLR 378
(1986) 162 CLR 24
(1982) 151 CLR 342
(1986) 161 CLR 141
(1996) 70 ALJR 286
(1986) 67 ALR 195
(1986) 10 FCR 197
(1963) 113 CLR 475
(1997) 149 ALR 78
(1993) 40 FCR 183
(1995) 133 ALR 226
(1995) 57 FCR 451
(1985) 159 CLR 550
(1995) 55 FCR 316
(1992) 175 CLR 564
(1988) 15 NSWLR 1
(1978) 140 CLR 675
(1959) 101 CLR 298