Federal Court of Australia|1993-02-10|Before: Wilcox J

Re Robert Bropho v Robert Tickner and Bluegate Nominees Pty Ltd [1993] FCA 25; (1993) 40 FCR 165 (10 February 1993)

Aboriginal Heritage - Applications for declarations for protection and preservation of area of significance to Aboriginals - Refusal of applications - Challenge to decisions - Application for emergency declaration - Whether Minister was entitled to consult Cabinet in connection with prospective decision - Whether Minister was entitled to delegate to others the question whether area under threat - Reasonableness of the conclusion - that area not under threat - Application for permanent declaration - Whether Minister concluded that area not under threat - Reasonableness - Whether Minister bound to determine question of threat and to obtain report before refusing application - Relief.

No. WA G202 of 1992

1. It be declared that the decision of the first respondent

notified to the applicant by letter dated 11 November 1992

to refuse to make a declaration pursuant to s.9 of the

Aboriginal and Torres Strait Islander Heritage Protection

Act 1984 is invalid.

2. The said decision be set aside.

3. The application of the applicant for a declaration pursuant

to the said section be remitted to the Minister for

consideration according to law and determination within

seven days of this day.

4. The first respondent pay the applicant's costs of this

proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

No. WA G9 of 1993

1. It be declared that the decision of the first respondent

notified to the applicant by letter dated 7 January 1993 to

refuse to make a declaration pursuant to s.10 of the

Aboriginal and Torres Strait Islander Heritage Protection

Act 1984 is invalid.

2. The said decision be set aside.

3. The application of the applicant for a declaration pursuant

to the said section be remitted to the Minister for

consideration and determination according to law.

4. The first respondent pay the applicant's costs of this

proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WILCOX J: These cases were heard in Perth last Thursday and Friday. The issues they raise are important to the parties and to the community generally. For that reason I would ordinarily have reserved my judgment at the conclusion of the hearing and made formal orders when I published my reasons for judgment. But these are not ordinary cases. They require urgent determination. Building work is currently being undertaken which will soon irretrievably (except at great cost) damage the site which the applicant seeks to protect and preserve. Having regard to that fact, and (with the benefit of pertinent submissions from counsel and the opportunity of considering the matter over the course of two days) having reached the conclusion that the Minister had fallen into error of law in rejecting the applicant's claims for declarations under s.9 and s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, I felt I ought to act immediately. Accordingly, last Friday I made orders setting aside the Minister's decisions regarding applications for declarations and remitting those applications to him for further consideration and determination according to law. At that time, for the benefit of the parties, I stated in summary form my principal conclusions on the matters argued, indicating that I would publish full reasons as early as possible this week. These are my reasons.

2. There are two Applications before the Court. By consent they have been heard together. The parties are identical. The applicant in each case is Robert Bropho, a person who describes himself as "an Aboriginal elder and spokesperson". He says that he is the spokesperson for a group of about 120 people known as the "Fringe Dwellers of the Swan Valley". Mr Bropho has long had an interest in the use of the subject land, an area that lies between Kings Park and the Swan River and is bisected by Mounts Bay Road. Probably most white residents of Perth know the site as the old Swan Brewery site. For many years a building on the site, which still exists and is to be renovated as part of the present construction program, was used to manufacture Swan beer. But to Mr Bropho - and, according to him, other members of his group - the site is Goonininup, a place of particular sacred significance by reason of its association in Aboriginal customary lore with the Dreaming Track of the Waugyl, the Rainbow Serpent. Mr Bropho has known Goonininup since his childhood, when he was taken there by his parents and instructed about its significance by the tribal elders and his grandmother.

3. There have been proposals for the redevelopment of the land for several years. Mr Bropho has taken a leading role in resisting them. I need not set out all the details. In February 1989 Mr Bropho applied to the then federal Minister for Aboriginal Affairs, Gerry Hand, for an emergency declaration under s.9 of the Act. That section provides:

"9.(1) Where the Minister:

(a) receives an application made orally or in writing by or on

behalf of an Aboriginal or a group of Aboriginals seeking

the preservation or protection of a specified area from

injury or desecration; and

(b) is satisfied:

(i) that the area is a significant Aboriginal

area; and

(ii) that it is under serious and immediate

threat of injury or desecration;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has

effect for such period, not exceeding 30 days, as is specified in

the declaration.

(3) The Minister may, if he is satisfied that it is necessary to do

so, declare that a declaration made under subsection (1) shall

remain in effect for such further period as is specified in the

declaration made under this subsection, not being a period

extending beyond the expiration of 60 days after the day on which

the declaration under subsection (1) came into effect."

4. On 12 April 1989 Mr Hand made a s.9 declaration. In that document he recited his satisfaction that the area is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration. The declaration was stated to have effect for 30 days. Mr Hand required "that no excavation, or ground disturbance, be undertaken at the area during the period of the declaration". The area the subject of the declaration was described as "Significant Aboriginal area located at Perth Lot 985 being a portion of Reserve 39880 in the State of Western Australia."

5. On 21 June 1989 Mr Hand made a further declaration - this time a declaration under s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act. Section 10 is couched in these terms:

"10.(1) Where the Minister:

(a) receives an application made orally or in writing by or on

behalf of an Aboriginal or a group of Aboriginals seeking

the preservation or protection of a specified area from

injury or desecration;

(b) is satisfied:

(i) that the area is a significant Aboriginal

area; and

(ii) that it is under threat of injury or

desecration;

(c) has received a report under subsection (4) in relation to

the area from a person nominated by him and has considered

the report and any representations attached to the report;

and

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

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has

effect for such period as is specified in the declaration.

(3) Before a person submits a report to the Minister for the purposes

of paragraph (1)(c), he shall:

(a) publish, in the Gazette, and in a local newspaper, if any,

circulating in any region concerned, a notice:

(i) stating the purpose of the application

made under subsection (1) and the matters

required to be dealt with in the report;

(ii) inviting interested persons to furnish

representations in connection with the

report by a specified date, being not less

than 14 days after the date of publication

of the notice in the Gazette; and

(iii) specifying an address to which such

representations may be furnished; and

(b) give due consideration to any representations so furnished

and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an

area shall deal with the following matters:

(a) the particular significance of the area to Aboriginals;

(b) the nature and extent of the threat of injury to, or

desecration of, the area;

(c) the extent of the area that should be protected;

(d) the prohibitions and restrictions to be made with respect to

the area;

(e) the effects the making of a declaration may have on the

proprietary or pecuniary interests of persons other than the

Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f) the duration of any declaration;

(g) the extent to which the area is or may be protected by or

under a law of a State or Territory, and the effectiveness

of any remedies available under any such law;

(h) such other matters (if any) as are prescribed."

6. The declaration of 21 June repeated recitals of the Minister's satisfaction about the significance of the area and the threat of injury or desecration. It also recited that Mr Hand had received and considered a report under s.10(4) and had considered all other relevant matters. The operative part of the declaration read:

"NOW, pursuant to sub-section 10(1) of the Act, I hereby make a

permanent declaration in relation to the area specified in Schedule 2 of

this declaration for the purposes of the Act having effect from the date

of publication of this declaration in the Gazette, and further, for the

purposes of the protection and preservation of the area from injury or

desecration, I declare that during that period any digging of,

excavation on or other interference with the surface or any other part

of the land in the area is prohibited without my written permission."

The land the subject of this declaration included not only Lot 985 of Reserve 39880 but also an additional lot, No. 986.

7. Although Mr Hand described the declaration of 21 June as "permanent" it turned out not to be so. Indeed, it was remarkably short-lived. Section 13(5) of the Act permits - indeed compels - the revocation of a s.10 declaration under certain circumstances. That subsection reads:

"(5) Where the Minister is satisfied that the law of a State or of any

Territory makes effective provision for the protection of an area,

object or objects to which a declaration applies, he shall revoke

the declaration to the extent that it relates to the area, object

or objects."

8. Apparently Mr Hand became so satisfied. The materials by virtue of which he reached satisfaction are not before the Court. The validity of Mr Hand's conclusion is not an issue in these cases. Only four weeks after making the so-called "permanent" declaration, on 19 July 1989 Mr Hand wrote a letter to Mr Bropho advising that the Premier of Western Australia had given some undertakings to the Prime Minister in connection with the future protection of the site; accordingly he had decided to revoke his declaration. He did so.

9. Following this decision, Mr Bropho attempted to persuade the Western Australian government not to permit the development of the site, which at some stage became the property of the State. Mr Bropho's attempts involved at least three separate legal actions, one of which reached the High Court of Australia: see Bropho v State of Western Australia [1990] HCA 24; (1991) 171 CLR 1. He won some battles but ultimately lost the war. The State government decided to permit development of the site. On 18 June 1992 it entered into a lease with Bluegate Nominees Pty Ltd, the second respondent to these proceedings. Bluegate is a subsidiary of Multiplex Constructions Pty Ltd. The latter company also executed the lease, as guarantor of Bluegate's obligations. The land the subject of the lease was identified as Perth Town lots 1034 and 1035. Lot 1034 is the area abutting Kings Park; lot 1035 the area lying between Mounts Bay Road and the river. The total area involved is almost 2 hectares. The term of the lease is 65 years. The lease permits the site to be used for offices, retail premises, a restaurant, a boutique hotel, residential uses, car parking on lot 1034 and any other use that may be approved by the Heritage Council of Western Australia, a body established under s.5 of the Heritage of Western Australia Act 1990 (WA).

10. Following the grant of the lease, on 11 August 1992, the then State Minister for Heritage, Jim McGinty, made an order under the Heritage of Western Australia Act suspending the operation of all relevant State planning and Aboriginal heritage legislation in relation to the site. Fearing that construction work would begin immediately, Mr Bropho made an application to the present federal Minister for Aboriginal Affairs, Robert Tickner, the first respondent to these proceedings. He sought both a further emergency declaration pursuant to s.9 of the Commonwealth Act and a new "permanent" declaration under s.10. The application was made both orally, through Ron Santen of the Aboriginal and Torres Strait Islander Commission, and in a letter sent directly to the Minister on or about 18 August 1992. The letter was signed by Mr Bropho and 20 other persons.

11. On about the same day as Mr Bropho made his application, Christobel Chamarette, a Senator for Western Australia in the Federal Parliament, had a conversation with Mr Tickner in Parliament House, Canberra. According to her uncontested account, she said to Mr Tickner:

"Why can't you intervene and protect the brewery site?". He replied:

"I can't act without the approval of Cabinet." Senator Chamarette said:

"Yes, you can. You're the Minister"; to which Mr Tickner replied: "You

get 100% for law and zero for politics."

12. During the following week, on 24 August, construction work began on the site. But it did not continue very long. On 22 September 1992, the Legislative Council of Western Australia disallowed the order made by Mr McGinty suspending the operation of the State legislation. The State authorities thereupon set about the consultation process required under the Aboriginal Heritage Act 1972 (WA).

13. In the meantime, Mr Bropho was pursuing his application to Mr Tickner. According to his uncontradicted evidence, he telephoned Mr Tickner's office inquiring about the making of a declaration at least 30 times between 18 August and 15 October 1992. Obtaining no satisfaction, he wrote a further letter on the latter date asking for an immediate reply to his application for a declaration. Mr Tickner responded to this letter on 11 November 1992. His letter read:

"I refer to your letter of 15 October 1992 in which you sought a reply

to the application for an emergency declaration under the Aboriginal and

Torres Strait Islander Heritage Protection Act 1984, in relation to the

area occupied by the old Swan Brewery.

I have been following closely the recent events surrounding the Western

Australian Government's proposed re-development of the Brewery site.

As you are aware I am required to consult with Cabinet colleagues before

deciding whether to grant a declaration. Following this consultation, I

have declined the application on behalf of your clients.

I would like to place on the record my disappointment with the manner in

which this issue has been prolonged in Western Australia and the manner

in which Aboriginal issues have been addressed.

I find it doubly distressing that this situation was allowed to develop

to the stage it has, in a State where the reconciliation process has

such a long way to go to bridge the gulf in understanding between

Aboriginal and non-Aboriginal Australians."

14. On 7 January 1993 Mr Tickner sent a further letter to Mr Bropho dealing with the part of his application that concerned s.10. His letter read:

"I refer to your application, sent to me by facsimile on 18 August 1992,

for a declaration under S.10 of the Aboriginal and Torres Strait

Islander Heritage Protection Act 1984, in relation to those areas for

which you sought protection on or near the old Swan Brewery site.

I have considered the significance of the area to Aboriginal people and

the threat of injury or desecration which may occur as a result of the

development proposal. However I do not believe that Commonwealth

intervention in the form of a declaration under S.10 would be the best

way to resolve the situation to the satisfaction of the competing

interests which are involved in this contentious area.

Accordingly, I have declined your application."

15. In reliance on s.13 of the Administrative Decisions (Judicial Review) Act 1977 Mr Bropho sought reasons for Mr Tickner's decision to refuse his s.9 application. The reasons were supplied on 12 January 1993. In those reasons Mr Tickner listed the materials he had taken into account, including the following items:

"4. Disallowance by the Western Australian Legislative Council on 22

September 1992, of the Order made pursuant to S.38 of the Heritage

of Western Australia Act 1990.

5. The consequential need for the Western Australian Government to

comply with the requirements of the Aboriginal Heritage Act 1972

(WA) before any development in the area could proceed."

16. Mr Tickner stated his reasons for decision in these words:

"Following the disallowance of the order made under the Heritage of

Western Australia Act 1990, with the consequence that the Western

Australian Government was required to comply with the procedures set out

under the Aboriginal Heritage Act 1972 (WA), and particularly in view of

the requirement that the Western Australian Minister for Aboriginal

Affairs refer the development proposal for the area to the Aboriginal

Cultural Material Committee, I concluded that there was no serious and

immediate threat of injury or desecration."

17. In the meantime, construction work had recommenced. As she was legally entitled to do pursuant to s.18 of the Aboriginal Cultural Heritage Act, the then Premier and Western Australian Minister for Aboriginal Affairs, Dr Carmen Lawrence, decided to permit the development to proceed. Subsection (3) of that section gives the Minister a very wide discretion, going beyond consideration of the impact of a particular development on Aboriginal interests. The subsection reads:

"(3) Where the Trustees submit a notice to the Minister under

subsection (2) of this section he shall consider their

recommendation and having regard to the general interest of the

community shall either -

(a) consent to the use of the land the subject of the notice, or

a specified part of the land, for the purpose required,

subject to such conditions, if any, as he may specify; or

(b) wholly decline to consent to the use of the land the subject

of the notice for the purpose required,

and shall forthwith inform the owner in writing of his decision."

18. The Minister's s.18 approval was issued on 22 October. It appears that construction work recommenced about 12 November 1992.

19. The first Application (WAG 202 of 1992) was filed on 8 December 1992. The Application referred to s.10 of the Aboriginal and Torres Strait Islander Heritage Protection Act. It was subsequently amended so as to refer to s.9 as well. By a second amendment it was confined to s.9. The second Application, filed on 29 January 1993 (WAG 9 of 1993) relates to the s.10 application. It raises grounds similar to those in the earlier application. I will come to those grounds in a moment, after I mention three matters.

20. First, the applicant has made two unsuccessful applications for an interim order restraining the second respondent from proceeding with construction work until the final determination of the litigation. The earlier of these applications was heard by Lee J on 22 December 1992, on the eve of the site being closed down for the Christmas holidays. The second was heard, again by Lee J, on 26 January, after the resumption of site work but only a week before the projected final hearing.

21. The second preliminary matter is that, on 22 December, Lee J heard an application by Mr P J Hannan of counsel. Mr Hannan appeared on behalf of a client identified only as "the Ballaruk people". He sought leave for his client to become a party to the proceedings. It seems that Mr Hannan informed his Honour that the Ballaruk people disputed Mr Bropho's claim to be the proper custodian of the land under Aboriginal custom. They wished to establish their own title to that position and to use the issue of standing for that purpose. They argued that, if they were held to be the proper custodians, it would follow that Mr Bropho had no standing to seek judicial review of the Minister's decision to refuse a s.9 declaration; he would not be a "person aggrieved" by that decision. Lee J refused the application for joinder but gave leave to counsel to appear at the hearing as amicus curiae. He left until the trial the question what role counsel would then be permitted to play.

22. When the trial commenced last Thursday, Mr Hannan appeared as amicus curiae in accordance with the leave granted by Lee J. He sought leave to read two affidavits dealing with his clients' entitlement to act as custodians of the land. I inquired whether his clients wished to challenge Mr Bropho's claim to custodianship. Mr Hannan at first disclaimed this desire. I pointed out that, unless his clients' proffered evidence negated Mr Bropho's custodianship, it was irrelevant; as a matter of logic there might be more than one set of custodians, each with legal standing. Counsel then indicated that he did wish to dispute Mr Bropho's claim to custodianship. He agreed that such a dispute could only be resolved after extensive oral evidence.

23. An amicus curiae has no entitlement to lead evidence: see Corporate Affairs Commission v Bradley (1974) NSWLR 391 at 399. The role which he or she may play is a matter entirely within the discretion of the Court: see United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520 at 534-535. In Australia, as distinct from the position in the United States, the intervention of an amicus curiae is a relatively rare event; the amicus' role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked. I do not dispute that it may sometimes be appropriate to allow an amicus curiae to complete the evidentiary mosaic by tendering an item of non-controversial evidence; although I would prefer to reserve my opinion whether this should be permitted to be done over the objection of one or more of the parties. But it is another matter where the proposed evidence would be complex and controversial. To allow the tender of that type of evidence may be to allow the amicus curiae effectively to hijack the parties' case, taking it off into new factual issues which may greatly extend its length and thereby impose significant additional costs and disadvantages upon the parties. Rarely, if ever, should this course be permitted.

24. Mr G M G McIntyre, counsel for the applicant, objected to the tender of evidence by the amicus curiae. He indicated that, if admitted, that evidence would be vigorously disputed by his client. Under these circumstances it was apparent that the admission of the proffered evidence would inevitably lead to the type of situation just described. A proceeding primarily concerned with the validity of decisions made by the Minister for Aboriginal Affairs under the Aboriginal and Torres Strait Islander Heritage Protection Act would be turned into an inquiry as to the person or persons holding the primary custodial right to the subject land. That inquiry would involve much the same type of evidence as is adduced in support of claims under the Aboriginal Land Rights (Northern Territory) Act 1976, and would probably take as long to hear. In the meantime, presumably, construction work would be proceeding on the site. The second respondent would be left in a limbo of uncertainty. The applicant, if ultimately held entitled to succeed, might find that, in a practical sense, the cause had been lost because of the delay which had ensued in the resolution of the case. And this would all take place in relation to a matter about which there was little factual issue between the parties to the proceedings. The first respondent did not challenge Mr Bropho's claim to custodianship or his standing. The second respondent did challenge his standing and its counsel had read an affidavit by an Aboriginal woman claiming that Mr Bropho did not speak for all the people of South-west Australia. But even she conceded that he spoke for the people of the Swan valley.

25. For these reasons I refused the tender of the evidence. I did, however, indicate to Mr Hannan that I would welcome any submissions he might care to make upon any issue arising in the case and which were based upon the evidence adduced by the parties. Mr Hannan took up this invitation and provided me with useful written submissions on the standing issue.

26. This brings me to the third preliminary matter: the applicant's standing to seek review. As I have said, the first respondent, the Minister, did not call into question the applicant's standing. The second respondent, Bluegate, did; along with the amicus curiae.

27. The matter of standing to seek review under the Administrative Decisions (Judicial Review) Act has been examined in a number of decisions in this Court: see particularly Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421 at 437; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 132-133; Ogle v Strickland (1987) 13 FCR 306; United States Tobacco at 526-533; Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 125 at 131; Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1.

28. I see no need for a further exegesis on the subject. The decisions of the Court indicate that the criterion adopted by the Administrative Decisions (Judicial Review) Act, "person aggrieved", is closely akin to that applying under the general law. And, as it happens, the leading authority on the general law position arises out of facts akin to those of the present case. I refer, of course, to Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27. In that case the High Court accorded standing to two people who presented as tribal custodians of relics threatened with disturbance by the respondent's activities. This is a position not dissimilar to that occupied by Mr Bropho. He is the spokesperson of a small group of Aboriginals having a special association with the Dreaming Track of the Waugyl. The subject site is sacred, according to Aboriginal tradition, because it has particular significance to the Waugyl. Accordingly, Mr Bropho is a leader, if not the only leader, of the people most affected by any injury to, or desecration of, this site. Mr Bropho's evidence of his association with the site, is not unlike the evidence of association in Onus, quoted by Gibbs CJ at 32. On this evidence, it seems to me undeniable that Mr Bropho is affected by the Minister's refusal to make declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act in a manner which differs in kind, as well as in degree, from the general disadvantage suffered by all members of the community when there is a failure to comply with the law.

29. In reaching this conclusion, I do not overlook the opinion of a majority of the Full Court of Western Australia, in State of Western Australia v Bropho (1991) 5 WAR 75, that Mr Bropho's status in relation to this land was not such as to require the Western Australian Minister to give him a hearing concerning its future use. That holding is distinguishable from this case, for two reasons. First, it appears from the report that the evidence of Mr Bropho's connection with the subject site was sparser in that case than in the present. Secondly, the majority specifically held that the question whether there was an entitlement to a hearing was distinct from the issue of standing; they dealt only with the first of those questions. See per Anderson J, with whom Franklyn J agreed, at 91.

30. Mr McIntyre put an additional argument on standing, arising out of the fact that his client was the applicant to the Minister for declarations under s.9 and s.10. He said that, where a person makes a statutory applicantion pursuant to a right given by the statute itself, especially if the right is confined to people with some particular qualification, the person has standing to challenge the legal validity of the response to the application. Reference was made to Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473. I think there is merit in this argument, but I need not stay to examine it in detail or express a concluded view.

The Minister's s.9 decision

31. The filed Applications specify several grounds of review. In relation to s.9, Mr McIntyre put his argument in a number of ways. But, as it seems to me, his argument comes down to three main points: first, that the Minister misdirected himself in law in concluding that he was not satisfied that the site was under serious and immediate threat of injury or desecration because the Western Australian legislation would apply to the proposed development; second, that the Minister erred by acting in accordance with a direction of Cabinet; and, third, that the decision to refuse to make a declaration was unreasonable in the Wednesbury sense; that is, it was a decision no reasonable person could make.

32. It is convenient to deal immediately with the second matter. It may be disposed of by saying that the evidence does not show that Mr Tickner acted at the direction of Cabinet, rather than upon his own assessment of the situation. It does appear, from his conversation with Senator Chamarette, that Mr Tickner felt bound, politically, to refer the matter to Cabinet; whilst recognising that, legally, responsibility for the ultimate decision was his alone. I see no legal error in that perception of the appropriate course. Many decisions committed to Ministers by statute have political implications; no doubt that is why they are committed to Ministers rather than to public servants: see The Queen v Anderson; ex parte Ipec Air Transport [1965] HCA 27; (1965) 113 CLR 177 at 202 and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 42. The political implications of a prospective decision include not only its likely electoral consequences, a matter Mr McIntyre emphasised, but also its compatibility with the philosophy, policy and program of the government. These are matters about which a Minister is entitled to have the views of other members of the government, even though he or she has ultimate individual legal responsibility for what is decided. It seems to me that, at least where a statute empowers a Minister to make a decision relating to a matter of general community concern as distinct from determining the legal rights of a particular person and where the statute does not specify any precise procedures or criteria, the Minister is entitled to consult other members of Cabinet before determining the appropriate decision. Of course, even in such a case, the ultimate decision must be that of the Minister. And where the Minister has to find the facts, the findings must be the Minister's own findings. I take an example from the words used in s.9 of the Aboriginal and Torres Strait Islander Heritage Protection Act, without suggesting that this situation occurred in the present case. It would not be open to a Minister who was in fact satisfied that an area was of Aboriginal significance, or under threat of injury or desecration, to determine at the urging of colleagues that he or she was not so satisfied. A Minister who did this would be misstating his or her conclusions of fact and allowing consultation to become dereliction of duty.

33. In support of his argument that Mr Tickner acted at the dictation of Cabinet in refusing the s.9 application, Mr McIntyre relied on the sentence in Mr Tickner's letter of 11 November: "Following this consultation, I have declined the application on behalf of your clients". There is no reason to doubt that this was the order of events, in a chronological sense. But it does not follow that the ultimate decision was dictated by Cabinet. The sentence does not say that the refusal took place by reason of the consultation, as distinct from after consultation; that is, that Mr Tickner was caused by the consultation to make a decision that was contrary to his own judgment. The decision he made may have been the decision he would have made even in the absence of consultation. He may have been persuaded by his colleagues' arguments about policy matters; so that the consultation was decisive in his thinking, but nonetheless the decision was his own. I agree that neither the sentence nor the letter as a whole excludes the possibility of Mr Tickner having been overborne; that is forced to announce a decision conflicting with his own judgment of the appropriate course. But the applicant bears the onus of establishing that situation. He has not done so.

34. It seems to me that counsel's first s.9 point has more substance. His argument is a simple one. Counsel says that, where the Minister receives an application for a declaration under s.9 which answers the description contained in para (a) of subs.(1) of that section, he is obliged to make up his own mind on two matters: whether the area is one of Aboriginal significance; and whether it is under serious and immediate threat of injury or desecration. In determining the first matter, the Minister must bear in mind the definition in s.3(1) of the Act of "significant Aboriginal area"; that is, an area of Australian land or water that is "of particular significance to Aboriginals in accordance with Aboriginal tradition". The term "Aboriginal tradition" is also defined by s.3(1); being "the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals" and including "traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships".

35. Secondly, says counsel, the Minister is required to consider for himself whether or not the subject area "is under serious and immediate threat of injury or desecration". The interpretation of these words is assisted by reference to s.3(2) of the Act. That subsection provides that, for the purposes of the Act, an area shall be taken to be injured or desecrated if:

"(i) it is used or treated in a manner

inconsistent with Aboriginal tradition;

(ii) by reason of anything done in, on or near

the area, the use or significance of the

area in accordance with Aboriginal

tradition is adversely affected; or

(iii) passage through or over, or entry upon,

the area by any person occurs in a manner

inconsistent with Aboriginal tradition;"

36. Counsel for the applicant concedes that, even if the Minister reaches a conclusion that he is satisfied of the two matters referred to in s.9(2), he is not legally bound to make a declaration. He retains a discretion on that matter. This concession is consistent with the decision of Lockhart J in Wamba Wamba Local Aboriginal Land Council v Minister Administering the Aboriginal Torres Strait Islander Heritage Protection Act (1989) 23 FCR 239 at 246-248. With respect, it seems to me plainly correct. But counsel insists that the fact that the Minister retains an ultimate discretion does not affect his obligation first to determine the matters committed to him under para.(b). It seems to me that this also is correct. Section 9(1) provides for a three stage procedure. The first stage is the submission by a qualified person or group of persons - that is, "an Aboriginal or a group of Aboriginals" - of an application answering the description contained within para.(a) of the subsection. The second stage is for the Minister to determine whether or not he or she is satisfied of the two matters listed in para.(b). If the Minister is not so satisfied, that is the end of the matter; he or she has no power to make a declaration. These are matters about which the Minister is bound to make up his or her own mind, after making such inquiries about the facts as are needful and possible in the time available. The Minister may delegate to others the task of obtaining factual information; but not the ultimate decision as to whether he or she is satisfied of the matters listed in para.(b). The question posed by s.9(1)(b) is whether the Minister, personally, is satisfied of the stipulated matters. It follows, of course, that the Minister may not properly accept the dictation of others - even Cabinet colleagues - about these matters.

37. The third stage of the s.9(1) process arises only where the requirements of paras.(a) and (b) are satisfied. At that stage the Minister must determine whether or not to make a declaration. The Act does not specify the criteria to be taken into account. The only parameters of the discretion are the scope and purposes of the statute. However, somewhat unusually, the present Act provides some guidance on those matters. Section 4 reads:

"4. The purposes of this Act are the preservation and protection from

injury or desecration of areas and objects in Australia and in

Australian waters, being areas and objects that are of particular

significance to Aboriginals in accordance with Aboriginal

tradition."

38. It follows, in my view, that although the Minister has a wide discretion whether or not to proceed with the final s.9(1) step of making an emergency declaration and is entitled to consult with Cabinet colleagues and take into account general policy and political considerations, he or she must bear in mind that the power is conferred by Parliament for the purpose of preserving and protecting areas and objects of Aboriginal significance. In exercising the s.9 power, a major question will always be what decision is conducive, or most conducive, to the fulfilment of that purpose.

39. Mr McIntyre's point in relation to this ground of challenge is that the Minister fell into the legal error, at the second stage of the s.9(1) procedure, of remitting to someone else determination of the question whether the area would be subjected to serious and immediate threat of injury or desecration. This is not what the Minister said he was doing. Nonetheless, I think the criticism is justified. In his letter of 11 November, Mr Tickner gave no reason for declining to make a s.9 declaration. In his s.13 statement of reasons he referred to the application to the site of the Western Australian Act, an approach which left its destiny (and the existence and extent of any threat to its traditional Aboriginal use) in the hands of the relevant State Minister. Mr Tickner did not evaluate the situation for himself.

40. It is true, as counsel for the respondents point out, that the Minister is bound to consult the relevant State or Territory Minister before making any declaration: see s.13(2). The question in such a case is whether there is, under the legislation of the relevant State or Territory, "effective" protection of the relevant area. It follows that, in the present case, Mr Tickner was entitled, indeed bound, to consider the content of the relevant Western Australian legislation; that is the Aboriginal Cultural Heritage Act. If he did, he would have noted that it creates offences under s.17 in connection with damage to Aboriginal sites. But he would also have noted that there is no offence under s.17 if the person is acting with the consent of the (State) Minister under s.18. And, as I have already pointed out, consent may be given under s.18 on the basis of "general interest of the community", as evaluated by the Western Australian Minister; notwithstanding that the proposed action may have significant, even devastating, consequences to a significant Aboriginal area.

41. Mr C J L Pullin QC, senior counsel for the Minister, submitted that legislation may be "effective" for the purposes of s.13(2) even though it fails to ensure that the site will not be injured or desecrated. It is enough, he said, that there is legislation in place which deals with the general subject matter and may be expected to cover the problem in the generality of cases. It seems that the Minister himself took this view. But, with respect to him, it is clearly erroneous. The adjective "effective" requires that the protection offered by the State or Territory legislation be more than nominal or theoretical; it must be such as to ensure that the area will be protected under State or Territory law. This is consonant both with the usual meaning of the word "effective" and the scheme of the Act that, in such a case, a declaration is not to be made under the Commonwealth Act (s.13(2)) or, if made, revoked (s.13(5)). It is not to be supposed that Parliament intended that the protection of the Commonwealth Act should be denied by a statutory mirage. If, in the present case, Mr Tickner concluded that the Western Australian Act offered "effective protection of the area" he erred in law.

42. The final point raised by Mr McIntyre in relation to the s.9 application is unreasonableness. In the view I take, it is not strictly necessary to consider this issue in relation to s.9. But, on one view, it does arise in connection with s.10. I will return to it in that context but it is convenient to say immediately that, having regard to the careful formulation in s.3(2) of the concepts of injury and desecration, it is impossible rationally to conclude that this development will not injure or desecrate the subject land, considering that land as a significant Aboriginal area. The use of the land for a development costing $40 million and containing retail shops, an hotel, offices, a multi-level car park and other facilities is incontestably inconsistent with its use in accordance with Aboriginal tradition.

43. The Minister placed reliance on the Western Australian Act. But, by the time he made his decision, the Western Australian Minister had already consented under s.18 of that Act to the development proceeding. It was irrational to rely upon the Western Australian Act to ensure the protection and preservation of the site. Plainly, it would not.

44. Counsel for the Minister submitted that, if I reached the opinion that their client's decision in relation to s.9 was invalid, I ought to withhold relief on discretionary grounds. Their argument was that the s.10 decision effectively supersedes the s.9 decision and is invulnerable to attack; it is therefore pointless to make any order about the s.9 decision. In view of that submission, I will defer my conclusion about s.9 until after consideration of the arguments in the second proceeding challenging the Minister's s.10 decision.

45. Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act permits an Aboriginal or group of Aboriginals to seek a declaration in relation to a specified area. The section prescribes how such an application is to be treated. As might be expected, the first step is to determine whether the area is a significant Aboriginal area. If not, there would be no justification for proceeding further; and this is the natural interpretation of the section. If the first question is answered affirmatively, the next question arises: whether the area is under threat of injury or desecration.

46. The Minister did reach the conclusion that the subject area is a significant Aboriginal area. It is true that he announced that finding in his letter of 11 November, a letter directed specifically to the s.9 application. But, when he reached that conclusion, he had before him a valid s.10 application. It will be recalled that Mr Bropho's oral request and letter of 18 August constituted an application under both sections. It follows from the Minister's conclusion on the significance of the area that his next step was to determine whether he was satisfied that the area was under threat of injury or desecration.

47. The applicant did not obtain from the Minister a statement, under s.13 of the Administrative Decisions (Judicial Review) Act, concerning the reasons for his decision to refuse the application for a s.10 declaration. So the only explanation of the decision is that furnished in the Minister's letter of 7 January 1993. The letter is not very informative. The Minister said that he had -

"... considered the significance of the area to Aboriginal people and

the threat of injury or desecration which may occur as a result of the

development proposal".

It is not clear to me what the Minister meant by this. I doubt that the Minister was intending to convey that there was no threat of injury or desecration. As I have already noted, the Minister determined in November that there was no immediate threat of injury or desecration; s.9 makes immediacy critical. But s.10 does not; the question for the Minister is whether there is a threat, immediate or not. Moreover, since November, construction work had progressed. Major excavations had been undertaken in connection with the car park. It would be absurd for anyone to contend that the construction work for this major commercial development did not constitute a threat to the use of the land in accordance with Aboriginal tradition. If the Minister did determine, in January, that there was no threat of injury or desecration to the area his decision would have to be regarded as unreasonable in the Wednesbury sense: see Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at 230. In Bromley London Borough City Council v Greater London Council (1983) 1 AC 768 at 821 Lord Diplock described Wednesbury unreasonableness as a reference to "decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". These words would constitute an excellent description of any conclusion, on 7 January, that the use of this site in accordance with Aboriginal tradition was not threatened by what was then occurring, and proposed for the future.

48. Partly because of my unwillingness to attribute to Mr Tickner such an absurd opinion, I prefer to read his letter as not indicating a conclusion that there was no threat of injury or desecration. On the other hand, it is difficult to understand him as determining that there was in fact a threat of injury or desecration. He referred to a "threat of injury or desecration which may occur as a result of the development proposal". The word "may" is antithetical to an assertion that there is a present discernible threat. As I say, I am reluctant to conclude that the Minister found no threat. I prefer to read the letter as one which deliberately avoids the expression of any conclusion on that matter. I think that the Minister meant to convey a view, in effect, that it does not matter whether or not there is a threat of injury or desecration because a s.10 declaration "would not be the best way to resolve the situation".

49. If this is the proper interpretation of the letter, it involves an error of law. It is true that s.10(1) does not expressly impose duties on the Minister. In form, the subsection simply sets out a series of conditions precedent to the Minister making a declaration. But the procedure described by the section is one triggered by an application from a specially qualified person or group of persons; an Aboriginal or a group of Aboriginals. Moreover, the application must be one "seeking the preservation or protection of a specified area from injury or desecration". As already mentioned, it is the purpose of the Act to provide preservation and protection from injury or desecration of areas and objects that are of Aboriginal significance. It is not to be supposed that Parliament intended that the purpose of its statute could be set at nought by the Minister omitting to reach a determination upon the critical matters referred to in s.10(1)(b). I am conscious of the dangers, emphasised by counsel for the Minister, of reading into statutes words which they do not contain. But in the end the question is one of necessary intendment. That concept was explained by the High Court in Worrell Commercial Banking Company of Sydney Limited [1917] HCA 67; (1917) 24 CLR 28 at 32 in this way:

"Necessary intendment only means that the force of the language in its

surrounding carries such strength of impression in one direction, that

to entertain the opposite view appear wholly unreasonable".

It seems to me wholly unreasonable to read s.10(1) as permitting a Minister, who has received a proper application from a qualified person or persons, to decline to address the critical threshold matters specified in para.(b); in effect to ignore the application.

50. Of course, this does not mean that the Minister is bound to make a declaration under s.10, even if satisfied of the threshold matters. Parliament has quite plainly reserved to the Minister an ultimate discretion, evidenced by the word "may" in the concluding clauses of the subsection. But I think it did intend that the Minister exercise that discretion only after having addressed the issues specified in para.(b) and considered the materials mentioned in paras.(c) and (d). The ultimate decision may be against the applicant's plea for preservation or protection of the specified area, but it will then at least be an informed decision in which the case for protection or preservation is weighed carefully against any considerations militating against the making of a declaration. The values which underpin the Act will have been vindicated by the decision-making process even though, on balance, the ultimate decision is against taking steps to protect or preserve the particular area.

51. If, as I think, the Minister intended to say in his letter of 7 January that he had decided to refuse the application without determining whether or not the area was under threat of injury or desecration, this was a course not open to him.

52. There is, I suppose, a third possible interpretation of the letter of 7 January - that it indicated a determination that the subject area was under threat of injury or desecration but that the Minister had decided on discretionary grounds against intervention. As I have indicated, I find this interpretation difficult to reconcile with the Minister's use of the word "may". But if this interpretation is correct, it makes no difference to the result. The Minister's exercise of discretion is the final step in the procedure contemplated by s.10(1). The obtaining of a report under subs.(4) is an important element in that procedure. Its preparation must be advertised, members of the public being entitled to put submissions: see subs.(3). The report must address specified subjects: see subs.(4). It would be unreasonable to attribute to Parliament the intention to allow the Minister to refuse without report an application properly made and relating to an area that is of Aboriginal significance and under threat of injury or desecration.

53. It follows from the above that, whatever the proper interpretation of the Minister's letter in relation to threat of injury or desecration, the decision notified in the letter of 7 January is invalid in law.

54. I should say that Mr N Hasluck QC, counsel for the second respondent, submitted that the function of a s.10(4) report was merely to fulfil the Minister's obligation of procedural fairness towards persons having an interest in the relevant land; consequently, there was no need for a report if the application for a declaration was to be refused. Counsel referred to the inclusion in the subsection of para.(e): "the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than" the applicant or applicants. Undoubtedly this is one of the purposes of a report. But I see no warrant for concluding that the function of a report is limited to this matter. If that was the only proper subject matter of a report, it would have been enough for the statute to refer to para.(e). Several of the other paragraphs are obviously designed to elucidate information bearing on the case in favour of a declaration. It seems to me that the intention of Parliament was to ensure that the Minister was provided with comprehensive information in respect of both sides of the issue; thereby enabling him or her to make an informed decision.

55. The Minister's s.10 decision also being invalid, there is no reason to withhold relief in relation to the s.9 application on discretionary grounds. On the contrary, it is important that the s.9 application be properly and urgently reconsidered. Construction work is proceeding. Whilst the site is not yet irredeemably injured or desecrated, that position is fast approaching.

56. For the above reasons, I concluded that it was appropriate to declare each of the refusals invalid and to remit the applications to the Minister for further consideration and determination according to law. In relation to the s.9 application, I ordered that this determination take place within seven days of the order, that is by the close of business next Friday, 12 February 1993. Rarely will it be appropriate for the Court, in making an order under s.16 of the Administrative Decisions (Judicial Review) Act, to impose a deadline for reconsideration. But this course is justified where delay is likely to effectively conclude the matter adversely to the interests of an applicant or otherwise to occasion serious prejudice to a party: see Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 453.

57. The applicant sought an interim order under s.15 of the Administrative Decisions (Judicial Review) Act restraining the second respondent from proceeding with construction work pending the Minister's decision. I saw no basis for such an order. This is not a case where the action of a third party is unlawful unless and until a valid administrative decision is made; as, for example, the grant of a consent under town-planning legislation. The second respondent's activities are lawful, insofar as the Aboriginal and Torres Strait Islander Heritage Protection Act is concerned, unless and until there is a valid declaration containing provisions for the protection or preservation of the site that are inconsistent with its activities. So far, no such declaration has been made. It may be that none will ever be made. If a declaration is made, it will be open to the Minister to apply under s.26 of the Act for an injunction restraining activities inconsistent with its provisions. If he decides to make a declaration, the Minister will presumably make such an application. If he does, the Court will need to consider any discretionary matters advanced by the second respondent; although against the background that s.28 provides to affected landowners a compensation right under certain circumstances. I prefer to say nothing about these matters. They do not arise at this stage.

58. In relation to costs, I took the view that, in accordance with the usual practice, the Minister, who was wholly unsuccessful, should pay the applicant's costs. I felt that no order should be made, one way or the other, in relation to the second respondent. The second respondent succeeded in resisting the applicant's claim for an interim order. On the other hand it actively supported the Minister's unsuccessful arguments concerning the validity of the declaration.

Torres Strait Islander Heritage Protection Act 1984

Western Australia Act 1990

Islander Heritage Protection Act 1984

Decisions (Judicial Review) Act 1977

Land Rights (Northern Territory) Act 1976

Re Robert Bropho v Robert Tickner and Bluegate Nominees Pty Ltd [1993] FCA 25;

At a glance

Court

Decision date

Before

Source

Judgment (84 paragraphs)

Re Robert Bropho v Robert Tickner and Bluegate Nominees Pty Ltd [1993] FCA 25; (1993) 40 FCR 165 (10 February 1993)

Parties

Legislation Cited (6)

Cases Cited (16)