(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.