Tickner v Champan - click on Original PDF Document link above to read summary [1995] FCA 987 | Case summary | Zoe

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Tickner v Champan - click on Original PDF Document link above to read summary

[1995] FCA 987

Federal Court of Australia|1995-07-01|Before: Black CJ, Kiefel JJ

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1995-07-01

Before

Black CJ, Kiefel JJ

Source

Original judgment source is linked above.

Judgment (143 paragraphs)

[1]

Tickner v Champan - click on Original PDF Document link above to read summary CATCHWORDS ADMINISTRATIVE LAW ) ABORIGINAL AND TORRES STRAIT ISLANDER ) HERITAGE PROTECTION ACT ) - Judicial review of Minister's decision under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - whether Minister had "considered" representations - meaning of "considered" - effect of claim that certain representations related to matters which aboriginal tradition required to be kept secret from men - consideration of public interest in preservation of aboriginal traditions requiring confidentiality in relation to the requirement that a representation be considered and that relevant questions be able to be debated by all those interested, whether aboriginals or other persons - discussion of the scope and purpose of the Act - significance of representations in the statutory scheme - whether statutory requirements as to notice were fulfilled - meaning of requirements to give notice of "the purpose of the application" and "the matters required to be dealt with in the report" - meaning of "specified area" - consideration of Minister's duty upon receipt of an application from aboriginals - nature of application - nomination of a reporter - whether later representations amounted to a fresh application requiring a fresh nomination and notice thereof -construction of s 9.

[2]

CONSTITUTIONAL LAW - whether if a representation was required to be kept secret from a male Minister, a female Minister could have acted pursuant to a decision of the Prime Minister.

[70]

It was said that identification in a public notice of an area sought to be protected might lead to further injury of the area or to a violation of traditional beliefs and that this would be contrary to the purposes of the Act. It must be recognised though, that the protection afforded by the Act ultimately does involve public identification of the areas being protected. This is so in all cases, including when an authorised officer makes an emergency declaration in relation to an area under s.18. An authorised officer must, as soon as practicable after making an emergency declaration, take reasonable steps to give notice of it to persons likely to be substantially affected and the declaration must describe the area with sufficient particulars to enable it to be identified: see s.19(1)(b) and s.18(2)(c)(i). No prior public notice is, however, required. Likewise, under s.9, an emergency declaration may be made without prior public notice, so that protection is possible before the public generally knows about an area's connection with Aboriginal beliefs and traditions; but the declaration itself must describe the area with sufficient particulars to enable it to be identified: s.11(a). Such a declaration must be published and the Minister must take reasonable steps to give notice of the declaration, in writing, to persons likely to be substantially affected by it: s.14(2). So, whilst the dangers of revealing the location of an area can readily be appreciated, there are mechanisms in the Act for emergency protection without prior notification. Protection does involve, in all cases, publication of the location. It would therefore be wrong to conclude that considerations derived from the purposes of the Act lead to the conclusion that a statement of the purpose of the application need not include the location of the land sought to be protected. In the present case, the Minister treated as the application under s.10(1) a letter to him from the solicitor for the Aboriginal Legal Rights Movement Inc. dated 23 December 1993. It was in respect of the application contained in that letter that he appointed Professor Saunders and she did not receive an appointment in respect of any other application. The letter dated 23 December 1993 referred to particular sites. They were described in the letter itself as "the two major campsite areas adjacent to the bridge approaches, and the sites on Hindmarsh Island as a whole" and those sites were further described in a letter to the State Minister for Aboriginal Affairs, a copy of which was attached to the letter sent to the Commonwealth Minister. There is a marked contrast between the identification of the area sought to be protected in the document that was treated as the application under s.10(1) and the notice published pursuant to s.10(3)(a). That notice referred only to "significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia". This is far too general a description and I agree with O'Loughlin J that the notice did not state the purpose of the application made under s.10(1) for the reason that it did not adequately identify the area for which protection was sought. The appellants relied upon letters from ALRM dated 7 and 12 April 1994 as enlarging the area adjacent to the proposed bridge described in the original application and submitted that the notice did, in the circumstances, sufficiently identify the enlarged area with which Professor Saunders' report was to be concerned. In her report, Professor Saunders points to the discrepancies between the areas described in the application of 23 December 1993 and the letters of 7 and 12 April 1994. Professor Saunders noted in particular that the 23 December 1993 application, the only application to which her instrument of appointment referred, made no mention of the Goolwa channel, and the potential significance of the channel had not begun to be fully understood until April 1994. This, she commented, presented some difficulties for the preparation of the report and she suggested that the letters of 7 and 12 April 1994 might be seen as supplementary to the application of 23 December 1993. But even taking this view, the notice published in the Gazette does not give any reasonable indication of the area or areas to be dealt with in the report. Whilst the ALRM letters of 7 and 12 April 1994 were careful to address the need for the application to be for the protection or preservation of a "specified area", a matter about which the ALRM was quite correctly concerned, the notice that was specified would convey little to any person without special knowledge of the relevant facts. The purpose of the notice under s.10(3) is not to inform people with special knowledge, but to invite representations from interested persons in the public at large. Although it is not necessary to decide the point I should also mention the course of events is open to the interpretation that the letter of 7 April amounted to an entirely new application in respect of a much larger specified area adjacent to the site of the proposed bridge, and involving the Goolwa channel. If this be correct, then that application should have been dealt with separately and a reporter appointed for that purpose. There would, of course, have been no reason why the same reporter should not, in the circumstances, have been appointed to consider both applications. If, in truth, the facts were that the Minister had received a second application for the protection of a different specified area then, in the absence of a nomination of a reporter to prepare a report in relation to that area, and the receipt and consideration of such a report and the representations attached to it, there would simply be no power to make a declaration in relation to the different specified area. Had the reporter who was appointed to deal with an earlier application perceived that there had been a later application in respect of a different specified area, that reporter would have had no mandate to publish an advertisement in respect of an application for which she had not been nominated as the reporter. The point is that the procedure under s.10 is directed to a particular application in respect of a specified area. The original application defines the scope of the Minister's powers with respect to that application and likewise defines the scope of the reporter's function. It is less clear whether, to satisfy the obligation to state the purpose of the application, it is necessary for the notice to identify the apprehended injury or desecration against which the application seeks protection. There are two aspects of the concept of injury or desecration that could be involved here: first, the activity or activities that are regarded as constituting injury or desecration and, secondly, the reasons why such activities are regarded as constituting injury or desecration. As a practical matter, however, it is to be expected that an application for protection will indicate very clearly the nature of the activity constituting the threat against which the protection of the Minister's declaration is being sought. The range of the possible injury and the wide extent of the Act's capacity to protect can be seen from some of the definition provisions in s.3. Thus, in s.3(1) it is provided that unless the contrary intention appears: "'Aboriginal tradition' means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships". The definition of "Aboriginal tradition" applies to the definition of injury or desecration in s.3(2) which provides that for the purposes of the Act an area should 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". The wide range of activities that could amount to injury or desecration, and in respect of which an application might be made, together with the practical likelihood that an application to the Minister will identify the apprehended injury or desecration, leads me to conclude that to state the purpose of the application in conformity with the requirement of s.10(3)(a)(i), it is necessary to state, at least, the activities that constitute the perceived threat of injury or desecration. If, as would seem most unlikely, an application seeking the preservation or protection of a specified area did not, either specifically or by necessary inference, reveal the nature of the activities constituting the apprehended threat of injury or desecration then, obviously, the content of the notice would be limited in that respect. The validity of an application made in such circumstances might be in doubt, but that is not a question that needs to be considered in this case. However, where an application does reveal the nature of activities that constitute the perceived threat of injury or desecration then, in my view, it reveals part of its purpose and this in turn needs to be stated as part of the statement of the purpose of the application required by s.10(3)(a)(i). In the present case, the notice did no more in this respect than repeat the words of s.10(1) and, however the application is viewed, this was an insufficient statement of its purpose. In this, and in other respects, any suggestion that "everyone knew" what the matter was all about is quite beside the point. Carried to its logical conclusion, such an approach would render almost redundant the requirement, intended by the Parliament, that there should be published a notice having particular characteristics. In my view, the language of s.10(3) and the important purpose of the notice in the process of reporting and decision-making provided for by the section, requires the conclusion that a failure to state the purpose of an application invalidates the s.10 process. Before turning to the next aspect of this question, I should say that I have not found it necessary to go further and to determine whether the statement of purpose need reveal anything about the traditions and beliefs affected by the activities against which protection is sought. In considering that matter one would need to be particularly mindful of the policy of the Act with respect to preservation, and the danger of offending traditions of Aboriginal people by disclosing beliefs of a particular character to the world at large, balanced against the policy of the Act with respect to the reporting process. It remains for me to consider whether the requirement to state the purpose of the application involves a requirement to identify the person or persons by whom, or on whose behalf, the application has been made. There may be very good reasons why, as a matter of policy, it would be desirable for people to know by whom, or on whose behalf, an application under the Act was made in respect of a specified area. But desirable though it might be to let people know by whom or on whose behalf an application has been made, I think it is stretching the meaning of "purpose" to conclude that a requirement to state the purpose of an application involves a requirement to state by whom the application is made, particularly when there is no statutory requirement for the applicant to have any greater connection with the area sought to be protected other than to be, or to act on behalf of, an Aboriginal person or a group of Aboriginal people. In the last respect, therefore, I do not agree with the learned primary judge but nothing turns on that because I agree that the notice was deficient in the other respects that I have mentioned. Whether the representations were considered: Section 10(1)(c) of the Act requires the Minister to consider both the report under s.10(4) in relation to the area received from a person nominated by him, and any representations attached to the report. In the context of the Act, given the policy of public involvement in the process and the potential gravity of the consequences of granting or withholding a declaration, it is clear that the Minister's duty to consider under s.10(1)(c) is a provision compliance with which is a necessary step in the exercise of power under s.10: cf. Hunter Resources Ltd v Melville (1988) 62 ALJR 88 at 94-5 per Dawson J. There is no distinction made by the Act between the report and the representations for this purpose. The treatment of the representations under the Act is different from the treatment of material upon which the report was based in Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 because in that case there was no legislative requirement that the decision-maker consider background material upon which the report was based. The reporter, for his or her part, is required by s.10(3)(b) to give "due consideration" to any representations furnished under s.10(3)(a) in connection with the report and he or she is under a statutory duty, when submitting the report, to attach such representations to it. The Minister must personally consider the report and any representations attached to it. This is because the powers and functions of the Minister under s.10 (and under ss.9, 12, 13(2), Part IIA and s.26) are specifically excluded from the power of delegation conferred by s.31(1). The exclusion is, in terms, quite general and it was not suggested that the exclusion from the power of delegation of the Minister's powers and functions under s.10 was confined to the making of a declaration and that the Minister could nevertheless delegate the consideration of the report and any attached representations to anyone else. The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission. It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s.10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act - the explicit requirement that the Minister consider the representations - that removes the process under s.10 from the general rule that a Minister is not expected to do everything personally: see the observations of Brennan J in FAI Insurances Ltd v. Winneke (1982) 151 CLR 342 at 416 adopting Lord Reid's comments in Ridge v. Baldwin [1964] AC 40 at 72; cf. O'Reilly v. State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11-12 per Gibbs CJ. The express requirement that the Minister consider the representations also gives rise to a more precisely defined duty binding on the Minister than the Minister's duty to consider matters in connection with satisfying himself or herself that a grant of land should be made under s.11 of the Aboriginal Land Rights (Northern Territory) Act 1976: cf. Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 at 30-1 per Gibbs CJ, at 37-9 per Mason J and at 63-5 and 65-6 per Brennan J. The requirement of substantial and non-delegable personal ministerial involvement is consistent with the evident intention of s.10, as I have described it earlier in these reasons, that interested persons will have an effective opportunity to provide information and to express opinion concerning important issues involved in the consideration of an application under s.10(1) and that the decision-maker, the Minister, shall make an informed decision on the questions in issue, having considered the representations of interested persons. It must also be remembered that the obligation to consider, imposed separately upon both the reporter and the Minister, is an obligation to consider each representation. The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance. It was argued that the obligation to consider the representations should be construed in such a way as to take account of the urgency with which such consideration might have to be given. This, in effect, meant that the obligation to consider should be read down. The short answer to this submission is that there is no reason to suppose that the urgency in this matter will be present in every case. The fact that there was difficulty here provides no warrant for reading down the content of the very important obligation to give personal consideration to the report and the representations. During the hearing before the O'Loughlin J it was not suggested that the Minister had "considered" all the representations by reading them. Indeed, it was apparently submitted on behalf of the Minister that he had no such responsibility. Rather, it was submitted that the Minister had considered the representations: "... by a combination of reading the Saunders report which itself reflected the representations as well as discussing the representations which Ms Kee had read and obtaining her advice that the representations which she read were adequately reflected in the Saunders report."

[72]

Before us, counsel for the Minister submitted that the Minister had considered the representations by a process that involved discussion of them with Ms Kee, she having read the representations, and obtaining Ms Kee's advice as to whether or not the representations were adequately reflected in the Professor Saunders' report. This submission was based to a very substantial extent on Ms Kee's evidence. She swore an affidavit upon which counsel for the Minister relied. Ms Kee was cross-examined at length before the trial judge; in fact she was in the witness box for some three days and the transcript of her evidence occupies almost 200 pages. Even accepting, for the moment, that a representation can be "considered" in the manner suggested, the success of the submission in this case was critically dependent upon the evidence of Ms Kee. The trial judge discussed that evidence and he found that under cross-examination it became apparent that the extent and description of the discussion Ms Kee had had with the Minister was "vague and nebulous". His Honour then said that he rejected the submission by counsel for the Minister that the Minister's reading of Professor Saunders' report coupled with his discussions with Ms Kee constituted a "consideration" by the Minister of the representations. Having read the transcript of the whole of Ms Kee's evidence as reproduced in the appeal books, I can see no basis upon which the trial judge's finding about her discussions with the Minister can be successfully challenged. Counsel for the Minister sought to make something of the failure of the judge to mention, in his reasons, the statement made by the Minister in a television interview in which he said that his decision was based upon Professor Saunders' report and "all the other representations that were made to me". This out of court statement by the Minister does not seem to me to add anything to the Minister's case having regard to the way in which it was put, in reliance on the evidence of Ms Kee. She gave detailed evidence about the process by which it was said that the Minister's decision was based on all the representations and the judge's failure to mention what the Minister said in the television interview does not reveal any error in his approach to this issue. In any event, the process that counsel on behalf of the Minister sought to put forward as the Minister's "consideration" of the representations was, in my view, flawed. As I have said, the consideration of a representation involves an active intellectual process directed at that representation and again the point must be made that s.10 is explicit in its requirement that not only must the reporter give consideration to the representations but the Minister must do so as well. A report, written after due consideration of the representations by the reporter, might or might not, "reflect" them. In either event, the section makes it clear that the Minister must personally consider the representations and it is the representations that must be contemplated, not another document which is thought by someone else "adequately to reflect" the representations. This does not mean that the Minister is denied the assistance of a staff member in the process of considering the representations. A staff member might, for example, sort the representations into categories. He or she might put together all the representations that are in common form so that they can be considered together. In some cases, a summary of technical supporting material, such as legal and financial documents, might be provided and it would certainly be in order, in my view, for a competent staff member to assist the Minister by making sure that supporting technical documents were what they purported to be. I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it. Examples of the sort of representation that would need to be read personally may be found amongst the 400 or so representations forwarded with, and notionally attached to, Professor Saunders' report. Some of these make important points by the use of photographs and the form of some representations conveys meaning in other ways. Such representations need to be seen to be "considered". Whilst, then, a Minister may certainly have assistance for the purpose of considering representations, they must be truly considered and the process adopted in the present case, relying as it did upon Ms Kee's opinion about the adequate "reflection" of the representations, was insufficient. I therefore conclude that the trial judge was correct in holding that the obligation imposed by s.10(1)(c) of the Act to consider the representations had not been fulfilled. O'Loughlin J also examined the Minister's role with respect to two confidential appendices to the report of Dr Fergie which was furnished to Professor Saunders with the supplementary submission of the ALRM. The appendices were placed in sealed envelopes bearing the notation that the contents should not be read by men. His Honour concluded that it was essential that the Minister have full details of the claims so that he might appropriately consider them and the weight he should give them. I do not understand his Honour to have concluded that the contents of the envelopes should have been shown to any other man - only to the Minister, who was the decision-maker. It must be recognised that there is an inevitable tension between the need for a decision-maker to know the relevant facts in accordance with the requirements of administrative decision-making or in accordance with the requirements of the judicial process on the one hand and, on the other hand, a system of beliefs and traditions originating in times when such external elements were entirely absent. Successive Aboriginal Land Commissioners appointed under the Aboriginal Land Rights (Northern Territory) Act 1976, all five of whom have been men, have had to deal with problems of this nature. Secret knowledge has been made known to them with the authority of those who are custodians of it. Published practice directions and reasons for decision show that the Commissioners have been concerned to develop procedures to respect and uphold, as far as possible, the traditions and beliefs of Aboriginal people with respect to secret matters. The publication of such directions underlines the desirability for there to be a very clear understanding of the procedures that are available. The questions involved are discussed in the Law Reform Commission's Report No 31 The Recognition of Aboriginal Customary Laws chapter 25, especially at pp 483-491, where some examples are given of the procedures adopted. Section 27 of the Act recognises that circumstances may arise in which it will be desirable, having regard to the interests of justice and the interests of Aboriginal tradition, to order the exclusion of the public from a proceeding in a court arising under the Act and to make orders preventing or limiting the disclosure of secret matters. Section 27 does not, however, touch upon the question whether or not the Minister may deny himself access to material submitted to him by way of representation. The section must, in my opinion, be taken to proceed upon the footing that the decision-maker - the judge who constitutes the court in which the proceedings under the Act are heard - will be made aware of secret matters that the interests of justice and Aboriginal tradition may require to be kept secret from other people. In the present case there can, in my view, be no doubt that the obligation imposed upon the Minister by the Act to consider any representations attached to a report submitted to him for the purposes of s.10(1)(c) is not subject to any implied exception to the effect that the Minister need not consider them if, according to Aboriginal tradition, the matters contained in them are only to be disclosed to a person of the opposite sex. The Act proceeds upon the clear basis that the actual decision-maker, the Minister, must consider the report and the representations attached to it. It is of great importance that all concerned know what the requirements of the Act are in this respect. If Aboriginal people and those advising them have a clear understanding that the obligation to consider all representations is part of the process of protection, then they can make an informed decision about whether, and to what extent, information should be given in support of an application. It may be that this did occur in the present case and I note that in paragraph 4.4 of Dr Fergie's report there is reference to the deep concerns of women about the disclosure of information "in a process which could lead to it becoming known by a man, the Minister for Aboriginal and Torres Strait Islander Affairs". It is not, however, clear what occurred in this regard. It was submitted that the confidential appendices were not representations for the purposes of the Act and for this reason did not have to be considered by the Minister. I am unable to accept that submission because the confidential appendices to Dr. Fergie's report were very much part of the report, which in turn was an important part of the supplementary submission submitted by the ALRM to the reporter. In my view, Professor Saunders was correct in treating the whole ALRM submission, including the supporting material, as a representation and "attaching" the documents comprising that representation to her report when she submitted it to the Minister.

[82]

AND: THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN and ANDREW LINCOLN CHAPMAN First Respondents ISABELLA ALICE NORVILL and DOUGLAS MILERA Second Respondents CHERYL ANNE SAUNDERS Third Respondent BETWEEN: THE HONOURABLE ROBERT TICKNER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS Appellant GRAHAM FRANCIS BARTON and GARY STEPHEN KNOTT First Respondents ISABELLA ALICE NORVILL and DOUGLAS MILERA Second Respondents CHERYL ANNE SAUNDERS Third Respondent CORAM: Black C.J., Burchett and Kiefel JJ. PLACE OF HEARING: Adelaide DATE : 7 December 1995 REASONS FOR JUDGMENT BURCHETT J.: Considerable controversy surrounds the events that led up to this litigation. They are the subject of an inquiry, by a Royal Commissioner appointed by the Government of the State of South Australia, into allegations of the fabrication of a secret folklore, which a small group of Aboriginal women have claimed to hold by tradition as peculiarly their own. On the basis, in large measure, of this claim, the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs ("The Minister") issued declarations that were the subject of applications to the Court under the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act"). Then, from the orders made in those matters, the Minister brought the present appeals. Applications under the Judicial Review Act do not involve reconsideration by the Court of the facts of the decisions under review, but supervision by the Court of the legality of those decisions. Often it is necessary to recount the facts in order to make clear the legal issues in question; however, the limitations on the Court's role must always be borne in mind. In the present cases, the continuing investigation into the facts and the extent of the dispute about them make it doubly desirable that I should confine myself to a bare outline of what is essential for an understanding of the points of law I must decide. I shall take as my source, in the main, the judgment of the learned Judge at first instance, which is reported as Chapman v Tickner (1995) 55 FCR 316. Some years ago, in about 1989, residential development and the provision of services on Hindmarsh Island (known in a local Aboriginal tongue as "Kumarangk"), in the delta of the river Murray, led to the conception of a project to build a bridge across the channel between the mainland and the island. About 320 marina berths and 170 allotments on the island had been sold by companies in which the applicants, Mr and Mrs Chapman and their son ("the Chapmans"), were interested; and services had been established, including a licensed tavern, general store and ships' chandlery, fuel outlet, and workshops. Water and sewerage and other works had been undertaken. An archaeological report had been compiled for the location, recording, and assessment of Aboriginal sites on the island. All this had taken place over a period in excess of ten years. For the future, the provision of at least a further 600 allotments on the island was contemplated. There is a cable-drawn vehicular ferry which links the island to the mainland at the town of Goolwa, and about the island there are a number of barrages built to control water flows in Lake Alexandrina. The local government authorities responsible for the region including Goolwa and Port Elliott appear to have considered that the ferry had become inadequate to meet the growing requirements of the population. In 1989, as Professor Saunders later wrote in a report to which further reference will be made, the "proposal for the bridge originally emerged as a condition of planning approval for the construction of a Marina complex on Hindmarsh Island by Binalong Pty Ltd [one of the companies associated with the Chapmans]. The then State Government appears to have taken the view that greater use of the island in consequence of construction of the Marina would necessitate more ready access to it than the current ferry service, already subject to criticism, could provide." Ownership of the bridge was to vest in the local council, but it was to be built by the company Binalong Pty Ltd. There was to be a contribution from the State of half the capital cost or three million dollars, whichever was the lesser amount, a contribution that recognized the saving of ferry operating costs, and presumably also the public gain in efficient transport. Indeed, the Government's involvement was such that later, in March 1993, it agreed, as Professor Saunders reported, "to replace Binalong Pty Ltd as the party with overall responsibility for financing the bridge". The marina development proceeded between 1989 and 1993, by when a substantial portion of it had been completed. Preliminary site works started on the bridge in October 1993, but were stopped following protests by various groups. It was at about this time that a body called the Lower Murray Aboriginal Heritage Committee called on the Minister to intervene. On 23 December 1993, a letter was written on its behalf to the Minister by the Aboriginal Legal Rights Movement Inc. It applied to him to consider the use of his powers under s. 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Act"), in order to protect certain aboriginal sites should the new State Minister for Aboriginal Affairs fail to exercise his powers. A copy of a detailed letter of the same date to the State Minister was enclosed. That letter complained of the processes involved in the making of the original decision of the State Government, but it also raised particular objections to the bridge works continuing at that time. The letter stated: "I understand that the archaeological team currently conducting the survey at Goolwa and Hindmarsh Island have very recently discovered two major Aboriginal camp Sites, of critical significance to Aboriginal people. One runs along the foreshore at Goolwa either side of the current ferry for in excess of 1 kilometre, thought to originally extend for 3 - 4 kilometres continuously. The other Site is on the Island immediately adjacent to the ferry causeway and running continuously for a half kilometre north. I understand that the proposed bridge approaches `go through the middle' of at least the Goolwa camp Site, and that the bridge would destroy the physical and visual amenity of both Sites. The camp Sites represent the primary and traditional home for several Aboriginal clans and family groups to which several Aboriginal people living today can directly relate. For these Aboriginal people these camp Sites represent a living association with country and culture. Clearly the construction of the bridge as proposed will damage, disturb and interfere with at least these two major Aboriginal Sites of significance, ... . . . At the very least, I urge you to exercise your powers giving directions prohibiting the construction of the Hindmarsh Island Bridge whilst the comprehensive archaeological survey is completed in relation to Aboriginal Sites on the Island, and until a report is produced on the likely impact of increased visitor traffic and development on Hindmarsh Island in relation to those Sites should the bridge be built. Consideration with respect to the protection provisions of the Act, could then be given to the overall impact of the bridge, (a) directly upon the two major camp Sites by the construction process, and its visual impact, in conjunction with (b) the impact on Sites by the greater visitor traffic and development as a result of the bridge."

[83]

In the letter to the Commonwealth Minister, having enclosed the letter to the State Minister, the writer contented himself with formulating the application as follows: "I ask that you consider making declarations pursuant to Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to protect the two major camp Site areas adjacent to the bridge approaches, and the Sites on Hindmarsh Island as a whole, which are significant to Aboriginal persons, and, which are under the threat of injury and desecration, by the construction of the proposed Hindmarsh Island Bridge, should the State Minister for Aboriginal Affairs fail to enforce the provisions of Section 23 Aboriginal Heritage Act 1988 (South Australia), and, or exercise his powers under Section 24(1)(d) of the said Act. I look forward to your reply with respect to this matter at your earliest convenience." It will be observed that the letters are concerned with the archaeological investigation of camp sites which might be directly affected by the bridge, and with the possibility of indirect effects upon other sites on the island through the facilitation of access to the island generally. There was no suggestion of any ritual taboos associated with the island, or that the sites were actually known to be other than general camp sites requiring archaeological investigation, nor was there any reference to current use of or resort to the area by Aboriginals for any purpose. What was said was simply that the sites "represent the primary and traditional home" for clans "to which several Aboriginal people living today can directly relate". So far were the letters from alleging any effect upon presently existing activities or beliefs cherished by Aboriginals that the two major camp sites said to be "of critical significance" were referred to as "very recently discovered". I do not point this out to diminish the importance of archaeological sites, which may be very great and is in any case not for me to assess, but because what is for me to assess is the legal nature of the application made and of the issues raised by it. Neither the State Minister nor the Commonwealth Minister acted on either of the applications made in these letters. On 6 April 1994, the State Minister informed the Commonwealth Minister that the South Australian Government had been advised it was bound by obligations undertaken by the previous Government, so that the bridge would proceed. On 7 April 1994, the Aboriginal Legal Rights Movement wrote to the Minister, asking him to act under s. 9 of the Act, and on 20 April the Movement wrote again, in part as follows: "In the course of the past four days my client's [sic] have reluctantly divulged some secret/sacred information about the Hindmarsh Island, the Lakes and Coorong area including the sea, in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition. They have given me instructions to disclose this information to you to assist your assessment of the importance of this matter for aboriginal people and in particular the Ngarrindjeri people. `Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong. The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life. The Goolwa Channel is the "Meeting of the Waters", and is of crucial importance in these terms. Consequently, the bridge proposal is culturally destructive. It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People. The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the "meeting of the waters". The bridge would also create a permanent physical connection between Kumarangk and the Mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture'." This was the first claim of its kind made to the Minister in the matter. When it was made, there was then no assertion that the "secret/sacred information" was "women's business" (as it was later called), that could not be revealed to men. On 12 May 1994, the Minister made a declaration under s. 9 of the Act, and on 9 June under s. 9(3) he extended it. As extended, it operated to prevent work proceeding upon the construction of the bridge until 10 July 1994. It was in the context of these events that, on 23 May 1994, the Minister nominated Professor Cheryl Saunders to submit a report to him under s. 10 of the Act. He did so in the following terms: "Whereas on 23 December 1993, I Robert Edward Tickner, Minister for Aboriginal and Torres Strait Islander Affairs, received an application made under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) seeking the preservation or protection of a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island, on behalf of Aboriginal people. I now appoint Professor Cheryl Anne Saunders to report to me in accordance with section 10(4) of the Act to enable me to consider whether under section 10(1) I may make a declaration in relation to the area."

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Several things should be noted about this nomination or appointment. It states that the purpose is "to enable me to consider whether ... I may make a declaration". By virtue of s. 10(1) of the Act, the Minister "may make a declaration" only where he has (inter alia) received the report, but the purpose of the report is not to enable him to consider whether he is empowered to make a declaration, but whether he should do so. Whether he should do so, in a particular case, is a question involving the weighing of conflicting interests, which may be very serious. The next thing to notice is that the application under s. 10, to which the report is to relate, is the application made by the letter of 23 December 1994. That application said nothing about "women's business". The third thing to notice is the extreme vagueness of the indication of the area involved. The letter of 23 December 1993 is quite clear in its references to identifiable camp sites near the bridge works that are of archaeological interest, and to other sites, that cannot be identified without further archaeological investigation, on the island itself. But the Minister refers to "a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island". Which of the sites is the significant area in question? Professor Saunders seems to have attempted to overcome the last problem, in the advertisement inviting interested persons to furnish representations which she was required by s. 10(3) of the Act to publish. She simply changed "a significant Aboriginal area ... " to "significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia". But what were people who might, had they understood the advertisement, have been "interested persons" to gather from that? Which areas were said to be "significant"? As a matter of ordinary English (see Shorter Oxford English Dictionary (3rd ed., 1980) under "vicinity"), the phrase "in the vicinity (of)" means "in the neighbourhood (of), near or close (to)". It does not mean "at", "on" or "within". A reasonable reader would certainly not necessarily conclude that the advertisement embraced areas actually on Hindmarsh Island - still less that it referred (inter alia) to the whole of the island and its adjacent waters. As the compliance of the advertisement, which appeared in the Commonwealth Government Gazette of 26 May 1994 and the Adelaide Advertiser two days later, with the requirements of the statute is one of the issues in the appeals, I set out the version contained in the Gazette: "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" At this point, it is also convenient to set out the text of ss. 9, 10 and 11 of the Act which, as the Judge noted (supra, at 320), are contained in a division headed "Protection of significant Aboriginal areas and objects", and should be read in the light of the purposes of the Act disclosed in s. 4. So I set out s. 4 first. "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.

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(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." 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) 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 C.J. 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 C.J. in Tickner v Bropho at 194. For the Minister, it was suggested that the short duration of a declaration under s. 9 indicates a legislative intention to authorize a hasty inquiry under s. 10. This view is not only inconsistent with the purposes of a s. 10 report as expounded in Tickner v Bropho; it is contrary to the whole scheme of the Act. The Act takes as its starting point that there are particularly significant Aboriginal areas and objects which it is in the national interest to preserve. Depending on the nature and extent of the particular significance, that interest may require the subordination both of other governmental interests and of private interests. These are grave issues, and it is not reasonable to suppose that Parliament intended a decision upon them to be tossed off at short notice. Rather, as Tickner v Bropho indicates, they were to be the subject of a full and careful report, made after there had been a true opportunity for participation by all those affected, and involving a personal and informed decision by the Minister. There is no reason at all to suppose that s. 9 was intended to be availed of, as a precursor to a s. 10 declaration, in other than a minority of urgent and special cases. For a matter such as the present, the course contemplated by the Act would have been the nomination of a reporter promptly after receipt of the application. One of the matters the reporter would (by s.10(4)(g)) have been required to deal with would have been the adequacy of the State procedures, and in the light of the report, the Minister could have chosen his course after full opportunity for consideration. I should add that the construction of s. 9 poses its own problems. The section seems clearly enough to be intended to enable the Minister to impose some form of interim restraint. On the analogy of an interlocutory injunction, it might be thought the intention was to enable the restraint to be imposed where a serious issue had been raised. However, the statutory language requires the Minister to be satisfied, not that there are serious grounds to think the area is one of particular significance to Aboriginals, but that the area is such an area. This is one of the very matters that, under s. 10, he may not decide until he has "considered [a] report and any representations attached to the report". It may be that, in the present matter, the Minister reached his decisions under s. 9 on the basis that the camp sites were areas of particular significance to Aboriginals; he can hardly have been entitled, on the information then available to him, to conclude as a fact that any part of the area was of particular significance by reason of the "women's business". The report of Professor Saunders was received in draft form at the office of the Minister in Canberra during the evening of Thursday 7 July 1994. The Minister was not there, and the draft was transmitted by facsimile to him at his electoral office in Sydney. This copy of the draft included a representation received from the State Minister for Transport and an anthropological report prepared by Dr Deane Fergie which formed part of the representations of the Aboriginal Legal Rights Movement, but without the confidential annexures to that anthropological report. It was not until the following day, that is Friday 8 July 1994, at about 9.45 am, that a complete copy of the report of Professor Saunders, together with the accompanying representations, was delivered by courier to the Minister's Canberra office. These facts appear clearly enough from the affidavit of the Minister's adviser, Ms Kee. This affidavit does not suggest that any copy of the representations received on 8 July was forwarded to the Minister, who remained in Sydney up to the time when he made the decision on Saturday 9 July 1994 at about 11.15 am. Ms Kee indicates that it was necessary to send a declaration in the appropriate terms to him by facsimile, and to receive a return facsimile with his signature for her to take to the Government Printer at about midday for gazettal. The declaration was in fact published in the Commonwealth Gazette on Sunday 10 July 1994. Although it is clear that the Minister did not see the representations, apart from the two documents sent to him by facsimile, Ms Kee (she says) "advised the Minister that the report of Professor Saunders reflected the matters which were raised in the representations attached to the report". She also told him that "there was nothing contained within [the confidential annexures to the report of Dr Fergie] which did not support the information contained in the Saunders Report concerning the nature of the significance of the area to the Ngarrindjeri women". In addition to giving this evidence, Ms Kee told the Court that the Minister's handwriting appeared on his copy of the report of Professor Saunders and the representation from the State Minister for Transport. In cross-examination, it became clear that Ms Kee had not herself read all of the representations, and there was some vagueness as to just what she had read. The Judge considered this and other evidence, and expressed his conclusion as to whether or not the Minister had, as he was required to do by the terms of s. 10(1)(c) of the Act, "considered", not only the report, but also "any representations attached to the report". His Honour said (supra, at 370): "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." Having reviewed the evidence for myself, as it appears in the appeal books, I respectfully express my unhesitating concurrence in the Judge's finding that the representations were not considered. They were certainly not seen, with the exceptions I have already indicated; and the evidence makes it plain that such information about them as the Minister received by telephone was wholly inadequate to enable it to be said, as a matter of fact, that he had, in any reasonable sense of the word, "considered" the representations. On many matters, it was Ms Kee who considered them, to the extent that she did so, and what she communicated to the Minister was her own value judgment about them, and about the validity of the conclusions Professor Saunders had reached in relation to them. In my opinion, it was not open to the Minister to hand over to Ms Kee his responsibility to consider the representations. His task under s. 10, the Act makes clear (by s. 31), is not to be delegated. Undoubtedly, he may receive the assistance of staff, but ultimately it is for him, in a case involving s. 10, to fulfil the requirement expressed in the statute by the words "has considered the report and any representations attached to the report". Those representations are there because the Act imposes a duty upon the reporter, by s. 10(3)(b), not only herself to "give due consideration to any representations", but also "when submitting the report, [to] attach them to the report". So the Act makes provision to ensure that the Minister will receive the representations. That is not an idle formality, but in order that he may consider them. His obligation to do so is expressed in the very same form of words which requires him to consider the report itself - he is required to consider "the report and any representations". The one verb "has considered" has equally for its objects both the report and the representations; it can hardly have a different meaning with respect to the representations from that which it has with respect to the report. What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s. 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 A.C. 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J., speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs C.J. in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J. pointed out at 46, to delegate his powers and to refer matters to another authority. In Minister for Aboriginal Affairs v Peko-Wallsend Limited Mason J. (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J. was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling. If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasize that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task; although s. 10(1)(b)(i) refers to the Minister's satisfaction "that the area is a significant Aboriginal area", this expression actually means, as its definition in s. 3(1) shows, an "area of particular significance to Aboriginals in accordance with Aboriginal tradition". The purposes of the Act, according to s. 4, relate to "areas and objects that are of particular significance" in the same respect. It is consistent with the serious purpose of the Act in relation to objects and areas of a special kind that the consideration given to the report and the representations is required to be at a high level. The finding at first instance that the Minister had not "considered" the representations was in itself sufficient to dispose of the matter in favour of the applicants. By the terms of the statute, it was a condition of the exercise of the power that the Minister should first consider the representations. Since I agree with his Honour's finding on this point, I would affirm his decision. A separate issue was debated before his Honour, and again on appeal, in relation to the "women's business". Unlike the other representations, except that from the State Transport Minister, the report of Dr Deane Fergie was, as I have said, made available to the Minister. This report raised the claim in respect of the "women's business". However, annexures which formed part of the representation on this subject were deliberately withheld from the Minister. This was because these annexures recorded details of the claimed significance of areas including Hindmarsh Island which, it was said, the relevant Aboriginal tradition required to be hidden from men. The Minister is a man. Secret religious practices are of course not unknown to traditions other than those of Aboriginals. A familiar line in the Aeneid contains an adjuration to the effect: "Keep away, keep away, you uninitiated!" But here it is said the obligation of secrecy goes further, and extends to any detailed information about a tradition. One answer to so wide a claim is simply that a representation is either made or not made. If it is made, the making of it involves a disclosure of the matters put forward as justifying a particular decision. In Aboriginal Sacred Sites Protection Authority v Maurice; Re The Warumungu Land Claim (1986) 10 FCR 104, the Full Court considered a claim to public interest immunity made in respect of the disclosure of confidential information held by the Authority with respect to a sacred site. Woodward J. said (at 115): "As his Honour pointed out, it would be anomalous if Aboriginals could rely upon the Aboriginal Sacred Sites Act (NT) (the Sacred Sites Act) to provide protection for their sites and then refuse to allow sufficient revelation to enable persons legitimately in the area to avoid giving offence. Similarly, since land claims pursuant to the Land Rights Act are intimately concerned with the verification of sacred sites, Aboriginal people must understand that when such claims are made, they have to be tested by inquiry, and this may involve recourse to materials prepared in aid of the formal recognition or proclamation of sacred sites pursuant to the Sacred Sites Act. I do not doubt that this would be understood and accepted by Aboriginal people, provided they knew that disclosure going beyond the Authority itself would be kept to the necessary minimum." Toohey J. said (at 130): "The protection of sacred sites is a matter that bears on the orderly government of the Territory and has legislative warrant in both the Land Rights Act and the Sacred Sites Act. But I am not persuaded that such public interest as exists can only be vindicated if communications with the Authority have a general immunity from forensic investigation. While the Authority understandably treats as confidential information gathered by it relating to sites, the time must necessarily come when information will have to be disclosed in order to establish the existence of a sacred site, whether it be for the purpose of a prosecution or as a step towards declaration under the Act." There is no doubt about the public interest in the preservation of confidentiality, where Aboriginal tradition holds sacred a particular site, or information about a particular area, in a sense that would exclude certain persons from the site or from the possession of the information. But Aboriginals, just like all their fellow members of the community, if they wish to avail themselves of legal remedies, must do so on the law's terms. To take away the rights of other persons on the basis of a claim that could not be revealed to the maker of the decision himself would be to set those rights at nought in a way not even the Inquisition ever attempted. A problem from which it appeared to me the debate was not free is indeed the difficulty of knowing whether those who applied to the Minister on the basis of the "women's business" were in fact willing to put before him the basis of their application. The material is at best doubtful on this point. It may be, as the Minister assumed, that the information was disclosed to Dr Fergie and Professor Saunders, both women, on the firm basis that it would not be revealed to any man. But it may be that the disclosure was made on the basis that, if it were legally necessary to do so to enable the application to be considered, the information could be made available to the Minister. The argument about the effect of the Minister's failure to consider the confidential portion of the representations concerning "women's business" proceeded on the assumption that the practical alternatives were limited to his taking the course which he in fact took, or his making himself aware of the secret information. It seems to me that the Minister had available to him a third course. If he thought the Aboriginal women's claim to confidentiality required a departure from the normal way of dealing with the matter, it did not follow that the ordinary rights of other citizens, protected by the express provisions of the Act, had to be jettisoned. He could have asked the Prime Minister to appoint a female Minister or member of the Executive Council to act for the time being on his behalf during the consideration of the report and recommendations. By s. 19 of the Acts Interpretation Act 1901 the references in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to the Minister "include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister". I considered the meaning of this section, having regard to the terms of s. 64 of the Constitution, in GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 338-343, where I set out what I understand to be the effect of R v Judd (1919) 26 CLR 168, and also referred to the dictum of Kitto J. in Bainbridge-Hawker v Minister of State for Trade and Customs (1958) 99 CLR 521 at 553. Before the learned trial Judge turned to the matter of the secret "women's business", his Honour had already held the Minister's decision vitiated on two major grounds, one of which was his failure to consider the representations generally. So the additional failure to consider the representation regarding the "women's business" was not the ground of the decision. It does, however, raise important questions, and it demonstrates a further error in the Minister's making of the declaration under s.10.

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The other main ground of the Judge's decision affects the validity of the report of Professor Saunders (itself deemed to be a decision for the purposes of the Judicial Review Act: see s.3(3) of that Act), as well as of the Minister's declaration. It is that the requirements of s.10(3) of the Act were not satisfied in this case. To put this ground in context, it is necessary to go back to the beginning. I have already pointed out that the application in respect of which the Minister nominated Professor Saunders to report was that made on 23 December 1993. There was no later nomination. This situation imposed a real limitation upon the subject matter to which the report had to be directed. Professor Saunders was not authorised to report on an application for the preservation or protection of an area defined by reference to the boundaries within which the "women's business" was later said to hold sway, nor did the purpose of the application she was required to advertise have anything to do with the "women's business". In the circumstances, it is not surprising that the advertisement gave little indication either of the area or of the purpose of the declaration sought, so far as concerns the area and the purpose ultimately identified in the report of Professor Saunders. Indeed, no area at Goolwa or on Hindmarsh Island was specified, and certainly no indication was given that the undesignated "significant Aboriginal areas in the vicinity" of those places, which were mentioned, embraced the whole of the island, some part of the mainland, and waters including the channel between. There are provided by s.10, as Black C.J. pointed out in Tickner v. Bropho at 191, certain "preconditions to the making of a declaration in relation to an area". The first of these is stated by s.10(1)(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". It is in this context that sub-s.(3) requires the reporter to "publish ... a notice ... stating the purpose of the application ... and the matters required to be dealt with in the report". The matters required to be dealt with in the report are those set out in sub-s.(4), which makes repeated reference to "the area", that is, the "specified area" identified in the application. It is that area to which the report must relate (see s.10(1)(c)); about which the Minister must be "satisfied" if he is to make a declaration (see s.10(1)(b)); and in relation to which, and to which only, he is empowered by s.10(1) to make a declaration. Thus s.10, in its various provisions, revolves around a particular application received by the Minister in respect of "a specified area". As a matter of the ordinary meaning of the word "specified", neither the nomination of Professor Saunders to furnish her report nor the advertisement published by her contains any reference to a "specified area". Courts which have considered the meaning of "specify" in various contexts have treated it as a strong word. In Gantry Acquisition Corp v. Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 F.C.R. 554 at 569-570, I referred to it as "a word which signifies precision". I added: "Even such a word must yield to context, since no word has a meaning which remains rigidly fixed, however it is used. A word is not a locked box with static contents; it is more like a living cell, changing as it responds to the environment, which is its context. But no change wrought by the contextual currents enveloping the word 'specify' ... can so transform it that it fails to signify a requirement of clarity and precision. ... Judicial attempts to expound the meaning of the word 'specify' have repeatedly fixed upon unambiguous clarity as being connoted by it: Re Green's Will Trusts [1985] 3 All ER 455; Re Paddle River Construction Ltd (1961) 35 WWR 605 at 618; A v. B [1969] NZLR 534 at 536; Bond Corporation Holdings Ltd v. Sulan (1990) 3 WAR 49 at 64. See also Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177 at 181, per Sheppard J. In Jolly v. Yorketown District Council (1968) 119 CLR 347 at 351, Barwick CJ and Owen J equated 'specify' with 'state in explicit terms', a sense closely corresponding with that adopted by Kitto J in the same case at 352 and by Higgins J in his dissenting judgment in Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Pty Co Ltd (1913) 16 CLR 245 at 284-285. In that last case, Barton J said (at 272): 'Things specified must be specific things. Here all is general.' Those words might have been written for the present case." As in Gantry Acquisition, so also in this matter, the comment made by Barton J. is plainly apposite. And in this case too there is nothing in the context to wrench the word "specified" away from its normal meaning. To the contrary, s.10(2) (referring to "such period as is specified in the declaration") and s.10(3)(a)(iii) (referring to the specification of an address to enable representations to be furnished) clearly provide an immediate context indicating that the word is used to convey the idea of precise statement. Moving the discussion to a different plane, I think the scope and purpose of s.10 powerfully support the construction suggested by its language. This is a provision enabling a declaration to be made which may have a far-reaching effect upon Aboriginals with a different ancestral tradition, or who simply deny the authenticity of the tradition alleged; upon individual property owners whose properties may be stricken with inutility overnight; and upon the wider community which may gain or lose much by a particular decision. It is entirely probable, and reasonable, that when Parliament legislated for such consequences, it demanded a precise claim, which could be adequately investigated and debated. It should not be forgotten that the Act is concerned with areas "of particular significance to Aboriginals in accordance with Aboriginal tradition". Parliament could hardly have contemplated that an area of particular significance would be incapable of being ascertained so as to be identified in an application. Contemplating a matter of great importance, with the potentiality of greatly affecting a number of people, Parliament used the word "specified", and it seems to me it did so advisedly. The requirement that the notice should state "the purpose of the application" involves more than the definition of the area to be specified. It refers to the nature of the threat apprehended and the protection required. Again, when an area is said to be of particular significance, it almost goes without saying that this significance would be expected to be capable of some clear statement, so as to show how the anticipated harm could occur, and how it should be prevented. The notice published in the present matter is absolutely silent about these questions. A citizen who read it would not know whether the concern related to camp sites, burial places, dreaming tracks, or whatever else might have some great (or, possibly, some lesser) significance to Aboriginals in accordance with Aboriginal tradition. It follows that he would not know that what was in question involved the possibility of an absolute ban for many years on the construction of the planned bridge, rather than, for instance, measures to protect particular relics, while permitting construction to proceed. Apart from the requirement to state the purpose of the application, and obviously overlapping with it, is the provision made by s.10(3)(a) that the notice is to state "the matters required to be dealt with in the report". In the present case, the notice stated that the report "will deal with" certain matters which are simply listed in the language of the Act itself. I have no doubt that the Act does not contemplate such a useless formality. When it requires the notice to state these matters, it refers to the particular issues raised by the application under them. The Act is expressed in general language, but it does not contemplate either an application or a notice that merely repeats that general language. To take sub-s.(4)(a), "the particular significance of the area to Aboriginals" would be quite different in the case of an application to preserve the area of a cave containing Aboriginal cave paintings threatened by a proposal to quarry the rock in the area from what it would be in a case where some activity, or proposed activity, was suggested to be inconsistent with traditions affecting the appropriate use of some tract of land. It is necessary that the notice inform persons, who may wish to make representations, about the questions raised in the particular case in respect of the various statutory issues. So deficient was the notice in this regard that the trial Judge was compelled to find (supra, at 367): "Large as women's business loomed in Professor Saunders' report and in the Minister's decision-making process, no formal announcement to the public of its existence was ever made." The potentiality for inadequate investigation is obvious. In such a situation, competing Aboriginal traditions, quite apart from competing anthropological or historical views about the tradition alleged, might easily go unheard. Parliament's clear purpose of ensuring an adequate public ventilation of the issues inevitably foundered. Indeed, it seems plain that when the "women's business" was raised, and assuming those who raised it intended to pursue it notwithstanding the difficulties of confidentiality in which it was enmeshed, the Minister was required to deal with a fresh application under s.10(1). The grounds were quite different from those put forward in the application of 23 December 1993, in relation to which the nomination of Professor Saunders had been made. The area concerned was, of course, different too. What was in question was no longer a matter of camp sites and sites of archaeological interest, but involved the entire region the subject of the beliefs asserted as part of the "women's business". In my opinion, an application so far removed from that originally made required a new nomination under s.10(1)(c) and a new notice under s.10(3). For the Minister, it was argued that the respondents to the appeals received information individually from Professor Saunders concerning the matters omitted from the statutory notice. This misses the point in more than one way. Apart from certain inadequacies in the information they received, what was so learned was learned at a very late stage, and later than a compliance with the statutory requirements would have ensured. But in any case, the statutory notice was not designed for them alone. It was intended to give all persons interested an opportunity to come forward, not just for their own sake, but so that the community, the Aboriginal applicants and the contestants would have the benefit of any favourable information thus obtained. In the present case, it cannot now be known what the result might have been had adequate notice been given. In my opinion the decision of the learned trial Judge should be affirmed on this ground also. It is unnecessary, in the circumstances, to consider the question raised by the Notice of Contention whether, even aside from the inadequacies of the statutory notice, the respondents were denied natural justice. The answer to that question would involve an examination of the Act in order to ascertain whether the provision for publication of the required notice was intended to provide the full measure of natural justice to be accorded in relation to applications for declarations under s.10. The appeals must be dismissed with costs. I certify that this and the preceding thirty-six (36) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Date: 7 December 1995

[97]

The Background to the Minister's Decision The Court has the benefit of a detailed account of the facts by O'Loughlin J. It will be observed that the factual background here recited does not include reference to the bona fides of any of the parties to the appeals nor any other person. Such questions do not arise for this Court's consideration. They are not connected with the issues raised by the parties which concern, principally, what is required to be done by the Minister and reporter under s.10 ofthe Commonwealth Heritage Act before a declaration may be made. The Chapmans had, for many years prior to 1989, developed plans for a marina, business and service facilities and of residential allotments on Hindmarsh Island and the construction of a bridge to provide what would be the first such physical connection between the foreshore and the island. Vehicular access was gained only by ferry. By October 1989, after obtaining archaeological reports and the need for a highway having been assessed by district councils, the South Australian Government had approved, in principle, the building of the bridge subject to conditions including a contribution to the capital cost of it by the developer. Work proceeded through the early stages of the planning approvals with respect to the marina to 1993 when a point was reached where the condition pertaining to the construction of the bridge needed to be satisfied before it could proceed further. Some site works were commenced in October 1993 but ceased following demonstrations by persons who opposed its construction. At about this time the LMAHC wrote to the Minister expressing concern about the construction of the bridge and its likely effect on Aboriginal sites of significance. This request was followed by further letters in November and early December calling upon the Minister to intervene. These communications were followed by a letter dated 23 December 1993 from the Aboriginal Legal Rights Movement Inc ("ALRM") which sought the making of a declaration under s.10 of the Commonwealth Heritage Act in the event that the State Minister did not use his powers to protect "the two major camp site areas adjacent to the bridge approaches and the sites on Hindmarsh Island as a whole". It was said that the sites were significant to Aboriginal persons.

[102]

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 ProfessorSaunders. 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.

[118]

The reporter, it may be seen from s.10(4)(a), (b), (c), (d) and (g), is to deal with matters concerning "the area", which is to say that already nominated. Whilst the reporter may advise the Minister, pursuant to s.10(4)(g), that only some part of it needs protection, the starting point is the area specified in the application. The process just described does not assist the submission made on behalf of the Minister that the reporter is to undertake a general investigation of what might be an area of significance. It was also submitted, on behalf of the Minister, that the reference in s.3(2)(a)(ii) to anything done "in, on or near the area ..." would permit an applicant to point to a wider area than that which was truly associated with the tradition, for instance a type of "buffer zone" around a sacred ceremonial site. This would support the argument for initial generality of description and of secrecy. It seems to me however that s.3(2) is simply providing for the circumstance where something might be taking place away from the area which needs to be protected, but it is having an impact within the area. An example might be blasting. In such a case, whilst the declaration would still specify the area subject to the tradition and to be protected, it might under s.11(6) limit or prohibit activity elsewhere. The reporter is not prevented from making enquiries, although the Act does not provide for it. But the section does not predict that a reporter will be nominated until after an application containing the descriptions and explanations required by s.10(1)(a) is received. The reporter must then give notice to the public of what is the "purpose" of that application and what the report will be dealing with. Comment is thereby invited on the particular application and the matters referred to in s.10(4), and there would seem to be little point to doing so if the public were simply advised that a claim was made to protect lands in or about a widely described area which were said to be "of significance" to Aboriginal people generally.

[119]

The place the representations are given in the process, and the obligation on the Minister to consider them, show the importance given to them by the legislation. The intention of the Act, as Black CJ. in Tickner v. Bropho, 194 said, is that "interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application of s.10(1)" and that "the Minister shall make an informed decision on all questions, with input from interested persons". So stated, the two goals are similar to those of the notice provisions considered by Stephen J. (as he then was) in Scurr v. Brisbane City Council (1973) 133 CLR 242, 251-2, which, his Honour held, could only be attained by the provision of adequate information. It followed there (252) that the phrase "particulars of the application" in the statutory provision in question ought not be given a narrow meaning. Like reasoning should apply here with respect to what is said of "the purpose of the application". Counsel for the Minister sought to distinguish the reasoning in Scurr because it was concerned with matters of town planning which necessarily require greater precision, particularly as to the description of the land the subject of an application. I accept that the specification of an area under the Commonwealth Heritage Act will not require the same degree of precision. It remains the case however that the objects of the section require sufficient information to permit an understanding of what the application concerns and to enable facts to be put forward and views expressed upon it and the making of any declaration. The wider community could not in my view be regarded as informed of the topic for their comment without a description of the land or waters and the tradition, the very matter sought to be protected by the declaration. As to the identification of the applicants, it seems to me that the explanation of the tradition will connect it with a group of people and that is the essential information.

[121]

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.

[126]

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 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 (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.

[130]

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 & French Laboratories (Australia) Ltd & Ors v. Secretary, Department of Community Services and Health & Anor (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.

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