the Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, Isabella Alice Norvill and Douglas Milera v Thomas Lincoln Chapman, Wendy Jennifer Chapman, Andrew Lincoln Chapman, Graham Francis Barton, Gary Stephen Knott and Che [1995] FCA 1726

the Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, Isabella Alice Norvill and Douglas Milera v Thomas Lincoln Chapman, Wendy Jennifer Chapman, Andrew Lincoln Chapman, Graham Francis Barton, Gary Stephen Knott and Che [1995] FCA 1726 - FCA 1995 case summary — Zoe

[113]

"ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT

1984

SECTION 10(4) REPORT:

Significant Aboriginal Areas in the Vicinity of

Goolwa and Hindmarsh (Kumarangk) Island, South Australia

I, Professor Cheryl Saunders, hereby give notice that:

(1) the Minister for Aboriginal and Torres Strait Islander

Affairs, the Honourable Robert Edward Tickner, (the

Minister) has received an application made under

section 10 of the Aboriginal and Torres Strait

Islander Heritage Protection Act 1984 (the Act) on

behalf of Aboriginals seeking the preservation and

protection from further injury or desecration of

significant Aboriginal areas in the vicinity of Goolwa

and Hindmarsh (Kumarangk) Island in South Australia;

and

(2) the Minister is considering whether to make a

declaration under section 10 of the Act; and

(3) the Minister has nominated me to prepare a report

under section 10(4) of the Act in relation to the

areas.

The report will deal with:

(a) the particular significance of the areas to

Aboriginals;

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

desecration, of the areas;

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

(d) the prohibition and restriction to be made in respect

of the areas;

(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 areas are 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;

Interested persons are invited to make representations on

any or all of the above matters to:

Professor Cheryl Saunders

Faculty of Law

University of Melbourne

PARKVILLE VIC 3052

Representations should be made by 11 June 1994, but an

earlier indication of interest would be appreciated.

Any representations to me will be attached to the report.

Information about the application can be obtained from the

following offices of the Aboriginal and Torres Strait

Islander Commission:

Adelaide (08) 233 6700

Canberra (06) 289 3349

Professor Cheryl Saunders

26 May 1994"

[115]

"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.

. . .

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.

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.

(None has been prescribed.)

11. A declaration under subsection 9(1) or 10(1) in

relation to an area shall:

(a) describe the area with sufficient particulars to

enable the area to be identified; and

(b) contain provisions for and in relation to the

protection and preservation of the area from injury or

desecration."

[116]

11. Since the question of the long delayed construction of the bridge had become an issue of some notoriety, and a large number of persons had very real interests at stake, Professor Saunders received over 400 representations, notwithstanding the shortness of the notice given. Hers was a most onerous task, for the Minister required the report before 10 July. The reason for such haste was the running out of the duration of the declaration made under s. 9, as extended. It will be seen that the terms of s. 9 do not permit a declaration under that section to be extended for more than a total period of 60 days. Unfortunately, nothing was done about the nomination of a reporter within any reasonable time after the receipt of the application of 23 December 1993. The view seems to have been taken that the matter could be left to the State Government, and that no report was at that stage required. But s. 10(4)(g) makes it clear that one of the purposes of a report is to ascertain the extent to which State protection is available. The assumption that nothing need be done seems to me to have been in conflict with the Minister's duty under the Act, as then quite recently declared in Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183. For if the application was a valid application (and plainly the Minister accepted it as such, since eventually he nominated Professor Saunders in pursuance of it), the Minister was obliged to treat it as requiring him to proceed with due expedition to perform the statutory task. The application itself requested, in my opinion quite properly, a reply at his "earliest convenience". In his judgment in Tickner v Bropho at 195, Black CJ makes it clear that the obligation to obtain a report on a valid application is "a general obligation", not to be set aside in the interests of mere "administrative inconvenience". If steps had been taken to obtain a report at the proper time, the haste which the Minister later imposed on the processes would have been avoided. That haste was so great as almost necessarily to have impaired the proper consideration of the matter. It was quite inconsistent with the due performance of the purposes of the Act as discussed by Black CJ in Tickner v Bropho at 194.

[119]

14. 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.

[121]

"But, in my opinion, the evidence that has been placed

before the court in these proceedings has shown, as a matter

of probability, that the Minister did not give any

'consideration' to the representations at all. I have come

to this conclusion because of a combination of factors.

First, there is the absence of any reference to the subject

of the representations in the first set of s13 reasons. It

is also of some significance that there is no reference to

them in the s10 declaration - it merely recited '... having

received and considered a report under paragraph 10(1)(c)

...'; secondly, the evidence makes it clear that the

representations were not available to the Minister or his

staff until the day preceding the making of the s10

declaration. The evidence of Ms Kee with respect to the

Minister's commitments in this critical twenty four hour

period, coupled with the time taken by her to consider the

representations, justify a finding that the Minister's busy

schedule would not have given him sufficient time to

'consider' the representation to the requisite degree. Ms

Kee said in evidence that she had discussed the subject and

the contents of the representations with the Minister but

under cross-examination it became apparent that the extent

and description of that discussion was vague and nebulous.

I reject the submission by counsel for the Minister that the

Minister's reading of the Saunders Report coupled with his

discussions with Ms Kee about the representations and her

advice on their contents constituted a 'consideration' by

the Minister of the representations. Finally, it is

apparent from a ministerial brief to the Minister from ATSIC

dated 8 July 1994 that there was a misconception by the

Minister's advisers about his responsibilities. In that

brief the Minister was merely advised that the

representations (referred to as submissions) had to be

'received and acknowledged'. He was not advised of his

obligation to 'consider' them nor was he advised of what

measure of personal involvement on his part would be

necessary to constitute a proper consideration. The

relevant passage from the brief was:

'The original report, Appendices A-H and the 400

written submissions are to be delivered by

overnight courier. While there is a coverage in

the report of the issues raised by the written

submissions, it is nonetheless important for

these submissions to be received and

acknowledged by you as an integral part of the

reporting process.'

The consequence of these findings is the conclusion

that there has been a fundamental failure by the Minister to

comply with the statutory obligation that he consider the

representations before deciding whether to exercise his

power to make a declaration under s10 of the Commonwealth

Heritage Act."

[161]

13. Professor Saunders received over 400 written representations. Additionally, she travelled to Adelaide in the week beginning 19 June 1994 and spoke with several persons. On 20 June 1994 she met for the first time with some women of the Ngarrindjeri people. Neither the letter to the Minister from the women nor the confidential letter of 20 April 1994 from ALRM was referred to in the Professor's later report and his Honour found that she did not have prior notice of the special interest of the women. Further meetings were held with them and their account of the significance of "Kumarangk", amongst a wider area, was set out in a report of an anthropologist commissioned by the ALRM, Dr Deane Fergie and provided to Professor Saunders. Two appendices to the report, which contained the detail of what the women had advised, were sealed in an envelope. This information, which had also been imparted orally to Professor Saunders, was said to be sacred to women and such that it ought not be revealed to men. Professor Saunders accepted the request for confidentiality, as she said, so far as it lay within her power. Dr Fergie's report and the envelopes were forwarded, as were the other representations, with the Professor's report to the Minister. The report explained the basis upon which the Professor had received the information in the envelopes. In her report Professor Saunders, in discussing the extent of the area necessary for protection, advised that "the largest area for which significance is claimed is the entire Lower Murray lakes region including the whole of Hindmarsh and Mundoo Islands and their surrounding waters" but explained that any bridge in the area would be destructive. This area is that referred to by the Ngarrindjeri women. The report, as his Honour observed, placed emphasis upon the knowledge of the Ngarrindjeri women and Dr Fergie's conclusion from it that cosmological effects, which formed part of the women's set of beliefs, were dependant upon the physical separation of the islands and foreshore.

[197]

34. The reference in the notices here published to "areas" in the vicinity of Goolwa and Hindmarsh ("Kumarangk") Island was about as wide as could be, but it did not serve as a sufficient, nor even accurate, identification of the area if, as the Instrument of Appointment stated, the application under consideration was that of 23 December 1993. That letter referred to "the two major camp site areas adjacent to the bridge approaches and the sites on Hindmarsh Island as a whole", and whilst the bridge approaches were no doubt well known to many and able to be described in greater detail, those on the island were not. Further, no description of the tradition in question, which would suffer injury or desecration was adverted to. The Minister might have regarded the letters which followed as providing further information with respect to the earlier, incomplete, application or as a fresh application. The terms of the letter of 7 April 1994 suggest that the ALRM was applying for both s.9 and s.10 declarations on the basis of what was set out in it. By 20 April 1994 the areas in question, on each side of the Goolwa Channel and including the Channel, had been identified and the cultural meaning and beliefs associated with them advised, although on a confidential basis. Perhaps that made it unclear to the Minister or his advisers whether they were intended to be acted upon. The other letter received prior to the appointment of Professor Saunders, that from the Ngarrindjeri women, was unclear as to the areas in question but at this point appeared to refer, in a general way, to the same set of cultural meanings referred to in the letter of 20 April 1994. After Professor Saunders' meetings and the receipt of Dr. Fergie's report, however, differences were apparent, in the wider, spiritual or cosmological meaning which the women associated with the area. In a sense they thereby constituted a separate group, even though they were part of a wider group of peoples and their concerns included the effect the bridge would have on all Aboriginal peoples. It seems to me, subject to one qualification, that a further application for protection by declaration had been received. This is a situation which Lockhart J in Tickner v. Bropho 209 thought possible and I respectfully agree with his Honour's observation that it would be necessary to commence the process with respect to the later application afresh, although some efficiencies might be realised, for instance in the nomination of the same reporter. The qualification here arises from the Ngarrindjeri women's request for confidence. Whilst that may not prevent their submissions amounting to a representation, it renders unclear whether they wished the matter to be treated as an application, with attendant necessary public disclosures and an enquiry of them would be necessary.

[203]

39. There were other matters which led his Honour to conclude that there was no concentration upon the contents of the representations as a whole. There was no reference to them at all in the first set of reasons provided by the Minister pursuant to s.13 of the ADJR Act 1977 nor had there been in the declaration itself, which merely recited the receipt and consideration of the report. Further, in his Honour's view, there was a misconception by the Minister's advisers about his responsibilities, which could be seen from the ministerial brief from ATSIC of 8 July 1994 which advised only that the "submissions" had to be "received and acknowledged", although it elsewhere appears in his Honour's Reasons that Professor Saunders had correctly drawn attention to the Minister's obligations. Counsel for the Minister submitted that his Honour failed to take into account that the Minister was overseas when the first set of reasons were prepared and that the evidence did not suggest that the Minister always followed the advices of ATSIC. In the former respect however the preparation of the reasons by the Minister's staff, which made no reference to the representations, would be consistent with his Honour's finding of misconception on the part of those advising the Minister. I do not in any event understand his Honour to suggest that, individually, these factors were conclusive as to what had taken place. They tended to confirm what otherwise appeared to be an error in the process, which derived from a misunderstanding of what the Minister was required to do under this particular Act and which the Minister, by his Counsel, continues to contend for. Then it was submitted that his Honour overlooked what amounted to the evidence of the Minister directly upon the point. In a statement to the media after the making of the declaration, which was tendered without objection at the hearing before his Honour, the Minister said that his decision "was based" upon the report of Professor Saunders "and all the other representations that were made to me". The statement was made in the context of a denial by the Minister that he had read the Ngarrindjeri women's submission contained in the envelope. In its own terms it does not lead one to infer that the Minister necessarily turned his mind to each representation. His Honour was entitled to determine the question as to the extent of the Minister's involvement with the representations by reference to the more detailed account of events by the female staff member. In this respect his Honour did not accept, as this witness

[204]

tended to imply, that there was any detailed discussion as to the contents of all of the representations. There was evidence to permit such a finding including that regarding the limited time available for the task and other work being done. Indeed the transcript permits doubt as to the extent to which that person had actually read the representations and in so far as his Honour rejected part of this witness' account, he did so after hearing and observing her give evidence. The transcript reveals a witness who answered simple questions at some length and was prone to qualify her answers. At an important point in cross-examination of her, she spoke of having ascertained whether the information contained in the representations was "adequately" reflected in Professor Saunders' report but shortly afterwards elevated it to having determined whether they were "accurately" so reflected. Whilst I do not think that in every case a Judge is advantaged by observations of a witness, by the immediacy of oral evidence and the impressions thereby created, in this case one could not underestimate the advantage which his Honour had with respect to this witness, an advantage which this Court does not have. The position of disadvantage of an appeal court in such a circumstance has been a subject of discussion on many occasions : see Devries v. Australian National Railways Commission (1993) 177 CLR 472, 479, and Abalos v. Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167, 178-9. In Abalos (178-9) McHugh J pointed out that an acknowledgment of the position of the trial judge may mean that where a decision does not accord with the evidence of a particular witness, but no express finding has been made as to that witness's evidence, the trial judge may be taken to have rejected it. Here, in any event, whilst his Honour's findings may not have been directed in a personal way to the staff member, his description of the evidence given shows clearly enough doubts about its reliability in critical respects. It follows in my view that the findings must stand.

[208]

43. It follows from the conclusion I have reached that, in my view, the Minister was obliged to have a full appreciation of the matters put forward as the representation of the Ngarrindjeri women, and it would seem to follow from a reading of Professor Saunders' and Dr Fergie's reports that the substance and detail of what was sought to be conveyed was contained in the envelopes. Counsel for the Minister submitted that, because of the restriction placed upon the persons who might read the material, Professor Saunders became subject to a duty not to impart the material to men. It is to be recalled however that Professor Saunders accepted the restriction only "so far as it lay within my power" and how any such obligation could be maintained or enforced in the face of statutory duties and in particular those affecting the Minister, was not the subject of detailed submissions. Although I do not consider what, if any, obligation of confidence arose is the relevant enquiry here, it seems to me in any event that a Court in equity could not be asked to prevent it being understood and appreciated by the person to whom it was, in reality, directed - the Minister. The broad principle upon which the jurisdiction to restrain it being imparted rests is that equity will not permit unfair or unconscientious advantage to be taken of information received in confidence: Seager v. Copydex Limited (1967) 84 RPC 349, 368; Smith, Kline and French Laboratories (Australia) Ltd and Ors v. Secretary, Department of Community Services and Health and Anor [1991] FCA 150; (1990-91) 99 ALR 679, 691-2; rather than it arising from some expressed limitation of the purpose to which it may be put by the person giving the information: Smith, Kline (690-2). Here the information was provided to the reporter, Professor Saunders, so that she might take account of it and be influenced by it in her report to the Minister, as indeed she was. In turn it was no doubt hoped that the Minister's decision would be influenced. It was provided following a notice issued to the public which advised that all representations made would be attached to the report to the Minister who, it must have been realised, would be informed of the contents even if he did not actually read them. It may have been prudent to advise the group that material submitted to the reporter must be considered by the Minister and to give them the opportunity to decide whether that course of action should be followed, although the advices of Professor Saunders as to the limits of her power to retain their secrecy likely conveyed something of this to the group if the ALRM, who appear to have had some connection with them, had not already advised.

At a glance

Court

Decision date

Before

Source

Judgment (213 paragraphs)

the Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, Isabella Alice Norvill and Douglas Milera v Thomas Lincoln Chapman, Wendy Jennifer Chapman, Andrew Lincoln Chapman, Graham Francis Barton, Gary Stephen Knott and Che [1995] FCA 1726 (7 December 1995)

Parties

Legislation Cited (8)

Cases Cited (19)