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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - Judicial review - Decision of Minister to grant land to Aboriginal Land Trust - Prior hearing before Aboriginal Land Commissioner - Failure of appellant to give clear evidence before Commissioner as to location of ore body - Consequent error in Report, stating that ore body was largely outside land recommended for grant - Submission by appellants to Minister correcting error - Change of Minister - Whether new Minister deemed to have knowledge of submission - Whether Minister's failure to consider submission constituted failure to take account of relevant consideration - Discretionary factors in granting relief - Whether appellants' failure to give clear evidence before Commissioner disentitled them to relief.Aboriginal Land Rights (Northern Territory) Act 1976 ss.11,50.
Administrative Decisions (Judicial Review) Act 1977, ss.5,16.
Aborigines - Recommendation for grant to Land Trust - Minister's discretion - Matters for consideration - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 11(1), 50(3).
Crown - Administrative Decisions (Judicial Review) Act 1977 (Cth) - Remedies - Refusal of relief on discretionary grounds - Prejudice to applicant attributable to own conduct. Held: (1) In the exercise of the discretion conferred on him by s 11(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 to recommend the grant of land to a Land Trust, the Minister was bound to take into account material submitted by the applicants dealing with the correction and elucidation of factual statements contained in, and changes in circumstances occurring after, the report of the Commissioner under s 50(3) where that material concerned the detriment that might result from the Minister's decision.
Associated Provincial Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223; Padfield v. Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) AC 997, applied.
Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59 per Brennan J. at 72, referred to.
(2) Per Bowen CJ and Wilcox J: the Minister is bound to take into account material submitted to him concerning the detriment that might result from his decision, whether or not such material had been included in the Commissioner's report.
(3) Per Bowen CJ and Sheppard J: The applicants' omission to put before the Commissioner particular facts, which in certain eventualities would be of assistance to their case, and in allowing certain evidence given before the Commissioner to stand uncorrected fell short of a deliberate misleading of the Commissioner and therefore the applicants should not be refused a remedy on discretionary grounds.
(4) Per Wilcox J: The applicants should be refused a remedy because their conduct before the Commissioner, though falling short of intentional deception, showed an intention to provide less than full and frank information to him. To uphold their claim would be to encourage parties in other cases to subvert the statutory procedure in the same way.
(5) The Minister must be treated as having constructive knowledge of correspondence placed on his Department's files, notwithstanding that the correspondence was received by his predecessor in office.
Daganayasi v. Minister of Immigration (1980) 2 NZLR 130, referred to with approval.
HEARING
Sydney, 1984, October 16, 17; 1985, February 15. 15:2:1985Appeal from judgment and orders of Beaumont J.
R. A. Conti QC (and with him J. L. B. Allsop), for the appellants.
The issues of detriment bear a central role in and are of fundamental importance to the grant of a land claim by the Minister under s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The critical question therefore should be whether the subject matter of detriment is of such relevence that the Minister is obliged to take account of detriment, irrespective of whether or not the material is additional to what appears in the Commissioner's report under s 50. Sean Investments Pty Ltd v. MacKellar (1982) 42 ALR 676 is not intended to suggest that the Minister is the arbiter of what is or what is not relevant but rather whatever is objectively relevant must be taken into account: Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 566; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] UKHL 6; (1977) AC 1014. It is submitted that detriment is objectively relevant and therefore the Minister is bound to take it into account. Alternatively, the Minister is obliged to consider material concerning detriment issues emerging since the Commissioner's report, particularly where that material corrects mistakes and ambiguities in the report. That such issues will tend to arise and require the Minister's consideration flows from the very structure of the legislation. That a person claiming detriment may have no right to be heard by the Minister is not to the point. The lack of a right to be afforded natural justice in any given set of circumstances does not mean a decision-maker can ignore relevant considerations before him: Barbaro v. Minister for Immigration and Ethnic Affairs (1982) 46 ALR 123; Tagle's case (supra)
In any event, this is a case in substance and reality of newly-emerging factors; if the Minister is not bound to consider, for instance, demonstrable mistake, his decision will be based upon a mistake. The absence of precision in the appellants' evidence before the Commissioner may have contributed to the error or ambiguity in the Commissioner's view of the facts, but it cannot be said that the appellants' presentation of their evidence was improper so as to deny them the orders sought.
D. E. Grieve QC (with him F. G. Lever), for the first respondent.
The scheme of the Act distinguishes between the function of the Commissioner to inquire into and to report upon an application (made under s 50(1)(a)) from that of the Minister whose duty it is to decide whether or not to accede to a recommendation once made. The Commissioner is bound merely to comment on the matters referred to in s 50(3)(a)-(d) when making his report: Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59 The Minister is bound to act on the facts contained in the report but has no obligation to verify or otherwise examine those facts. For the Minister to take account of material urged upon him after the Commissioner's recommendation was submitted would involve his "rehearing" the matter potentially in denial of natural justice to those who had made the initial s 50(1)(a) application. The appellants seek orders which cannot be made because they invite the Court to decide a matter which is "for a Minister, not for a judge": Meneling's case per Brennan J. at 72, and to decide the matter on its merits contrary to the dictates of the Administrative Decisions (Judicial Review) Act 1977: Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186
J. L. Sher QC (with him D. A. Parsons) for the second respondent.
The scheme of the Act is for the Commissioner to conduct a hearing at which
all questions of detriment are to be raised, and then
report on them to the
Minister for his consideration and the exercise of his independent discretion:
Re Toohey; Ex parte Meneling
Station Pty Ltd (1982) 57 ALJR 59; Re Kearney; Ex
parte Northern Land Council (1984) 58 ALJR 218; Re Kearney; Ex parte
Japanangka
(1984) 58 ALJR 231 The Act does not require the Minister to take
into account private representations made to him: see ss 50(1)(a),
50(3)(b),
50(3)(c), and 51 to 54C. It is the Minister's judgment which the Act requires.
It is not for the Court to determine what
is relevant. The Act and the
Minister determine what is relevant: Sean Investments Pty Ltd v. MacKellar
(1981) 38 ALR 363; (1982)
42 ALR 676; Elliott v. Southwark London Borough
Council (1976) 1 WLR 499; Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53
ALJR
552; R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933)
50 CLR 228; Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39
ALR 186; Wiseman v Bornman (1971) AC 297 It
is sufficient if the applicants
were given an "opportunity to be heard": Twist v. Randwick MC [1976] HCA 58; (1976) 136 CLR
106; Delta Properties Pty Ltd v. Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11 The
applicants, having deliberately chosen to keep material from the Commissioner,
cannot now complain that the
Minister was not properly informed as to the
facts. In any event, in the exercise of discretion, the application should be
dismissed.
Cur adv vultSolicitors for the appellants: Clayton Utz.
Solicitor for the first respondent: Australian Government Solicitor.
Solicitors for the second respondent: Freehill Hollingdale & Page.
FPC
ORDER
The appeal be allowedThe cross-appeal be allowed.
The orders made by Beaumont J. be set aside.
The decision of the first respondent of 15 March 1983 be set aside, and the matter be remitted to the Honourable Clyde Holding for reconsideration according to law.
The first respondent pay to the appellants their costs of the appeal and of the proceedings before Beaumont J.
No order as to the costs of the cross-appeal.
No order as to the costs of the second respondent of the appeal or of the proceedings before Beaumont J.
Appeal allowed
DECISION
The appellants in this case seek an order under the Administrative Decisions (Judicial Review) Act 1977 setting aside a decision of the Minister for Aboriginal Affairs of 26 April 1983 that certain land, including a number of areas over which the second, third and fourth appellants had applied for mineral leases, should be granted to an Aboriginal Land Trust pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). The Minister's decision was made after consideration by him of a report dated 2 July 1981 by the Aboriginal Land Commissioner on the Alligator Rivers Stage II Land Claim, in which the Commissioner recommended that the land be granted.From 1967 the third and fourth appellants had been engaged in a joint venture exploration for minerals in areas of the Northern Territory, including the Alligator Rivers Region. The exploration work had revealed extensive uranium deposits known as Ranger 68. In 1976 applications were made for mineral leases, which in the normal course of events might have been expected to succeed, but consideration of the lease applications was interrupted by the passage of the Land Rights Act. In March 1978 the Northern Land Council made application under the Land Rights Act on behalf of Aboriginals claiming to have a traditional land claim in what was described as Stage II of the Alligator Rivers Region, although it was not until August 1980 that a claim book was lodged with the Commissioner.
Although the Northern Land Council presented a single claim on behalf of several land-owning groups, the Commissioner, as required by the Act, assessed the claims of the various groups individually. One area of mineral lease applications made by the appellants, the Barote lease block, covered two adjoining claim areas, those of the Dadjbaku and Mirrar Kundjey'mi clans.
The Commissioner conducted a hearing of the claim from 24 October 1980 to 27 March 1981, at which the appellants were represented. In his Report, presented in July 1981, he recommended, on the basis of the traditional attachment of claimants to the land, that the claim in respect of Dadjbaku land had not been established but that the claim to Mirrar Kundjey'mi land had been, and that the latter should be granted.
The Commissioner made certain findings of fact with regard to the location of Ranger 68, based upon the evidence given by the appellants. He found that Ranger 68 lay 90% within Dadjbaku and 10% within Mirrar Kundjey'mi. In fact it is the Barote lease area which is so located. In the present proceedings the appellants claim that Ranger 68 falls entirely within Mirrar Kundjey'mi, an assertion which is not disputed by the respondents.
After the presentation of the Commissioner's report, the appellants put forward a submission to the Minister for Aboriginal Affairs in September 1981. They stated that Ranger 68 lay within Mirrar Kundjey'mi country and, on the basis of the detriment which would be occasioned to them if the recommended land were granted, they requested the Minister to excise the whole area of the Barote lease block from any grant which the Minister was inclined to make.
The appellants say that their reluctance to disclose to the Commissioner the precise location of Ranger 68 was occasioned by the proximity of their competitor Pancontinental Mining Limited, which had interests in adjoining land.
The Minister, Senator Baume, wrote to the appellants in October 1981 saying that he had noted their submission and would take it into account when making his decision. On 8 March 1982 the Minister announced that he had decided to grant areas recommended by the Commissioner, with the exception of the blocks over which the appellants had outstanding mineral lease applications, in respect of which a decision was deferred. In December 1982, a change of Ministry having occurred, the appellants wrote to the new Minister, Mr. Wilson, requesting a meeting for the purpose of discussing the submissions which had been made to Senator Baume. In February 1983 Mr. Wilson replied, declining to meet with the representatives of the appellants, and noting that the Aboriginal Land Commissioner's report included detailed comments on the detriment which the companies might suffer. The point of the appellants' submissions to Senator Baume and of their letter to Mr. Wilson was that the report of the Commissioner proceeded upon a wrong basis. Mr. Wilson's letter of February 1983 does not reflect any appreciation of this.
Early in March 1983 a change of Government occurred and on 15 March the new Minister, Mr. Holding, decided that the land covered by the appellants' mineral lease applications should be granted. It appears that the appellants' submission to Senator Baume had not come to the attention of Mr. Holding at the time he made that decision. Mr. Holding had before him a Departmental briefing document which referred to the potential detriment to the appellants on a column headed "Commissioner's Comments on Detriment", and which recommended that the blocks in question be granted. It was of course difficult for the appellants to prove affirmatively that Mr. Holding had not considered their submission. However, the first respondent did not claim to have considered it, and the learned primary judge drew the inference that it was not taken into account. On 26 April 1983 the Minister wrote to the first and fourth appellants informing them of his decision.
In October 1983 the appellants filed an application in this Court seeking an order for review under the Administrative Decisions (Judicial Review) Act. The learned primary Judge dismissed the application but considered that the applicants might have been able to require the Minister to refer the matter back to the Commissioner pursuant to para.50(1)(d) and s.51 of the Land Rights Act and he ordered that the dismissal be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to those sections. The appellants appeal against that part of the order dismissing the application, while the respondents cross-appeal against that part of the order reserving any right of the applicants to bring fresh proceedings.
The application for review has to be seen within the context of the
mechanisms set out in the Land Rights Act for the disposition of land claims,
and in particular the division of functions between the Aboriginal Land
Commissioner and the
Minister. Section 50 of the Act provides:
"50.(1) The functions of the Commissioner are -behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -
(a) on an application being made to the Commissioner by or on
(i) to ascertain whether those Aboriginals or any other
Aboriginals are the traditional Aboriginal
owners of the
land; and
(ii) to report his findings to the Minister and to the
Administrator of the Northern Territory,
and, where he
finds that there are Aboriginals who are the traditional
Aboriginal owners of the land, to make
recommendations to the Minister for the
granting of the land or any part of the land in
accordance with sections 11 and 12;
(b) to inquire into the likely extent of traditional land claims
by Aboriginals to alienated Crown land
and to report to the
Minister and to the Administrator of the Northern Territory,
from time to
time, the results of his inquiries;
(c) to establish and maintain a register of the traditional land
claims referred to in paragraph (b);
(d) to advise the Minister in connexion with any other matter
relevant to the operation of this Act
that is referred to the
Commissioner by the Minister; and
(e) to advise the Minister and the Administrator of the Northern
Territory in connexion with any other
matter relating to land
in the Northern Territory that is referred to the
Commissioner by the Minister
with the concurrence of the
Administrator of the Northern Territory.
. . . . .claim the Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:
(3) In making a report in connexion with a traditional land
(a) the number of Aboriginals with traditional attachments to the
land claimed who would be advantaged,
and the nature and
extent of the advantage that would accrue to those
Aboriginals, if the claim were acceded to
either in whole or in part;
(b) the detriment to persons or communities including other
Aboriginal groups that might result if the
claim were acceded
to either in whole or in part;
(c) the effect which acceding to the claim either in whole or in
part would have on the existing or
proposed patterns of land
usage in the region; and
(d) where the claim relates to alienated Crown land - the cost of
acquiring the interests of persons
(other than the Crown) in
the land concerned.
(4) In carrying out his functions the Commissioner shall have
regard to the following principles:
(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic
group to which
they belong but do not have a right or entitlement to live at
that place ought,
where practicable, to be able to acquire
secure occupancy of that place;
(b) Aboriginals who are not living at a place on the traditional
country of the tribe or linguistic
group to which they belong
but desire to live at such a place ought, where practicable,
to be able
to acquire secure occupancy of such a place.
Section 11 of the Act provides:
11. (1) Where -Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and
(a) the Commissioner has, before the commencement of the
(b) the Minister is satisfied -to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or
(i) that the land, or a part of the land, should be granted
(ii) that different parts of the land should be granted to
different Land Trusts so that each
Land Trust holds the
land granted to it for the benefit of Aboriginals who
are the relevant
Aboriginals in relation to that
last-mentioned land,
the Minister shall -of the land, should be granted to a single Land Trust - a single Land Trust under section 4 to hold that land, or that part of that land, for the benefit of Aboriginals who are the relevant Aboriginals in relation to the land, or the part of the land, proposed to be held by that Land Trust; or
(c) establish -
(i) in a case where he is satisfied that the land, or a part
(ii) in a case where he is satisfied that different parts of
the land should be granted to
different Land Trusts - 2
or more Land Trusts under section 4 respectively to
hold those different parts of that land for the benefit
of Aboriginals who are the relevant
Aboriginals in relation to the
parts of the land respectively proposed to be held by
each of those Land Trusts;
(d) where land in respect of which a Land Trust has been or is
proposed to be established in accordance
with paragraph (c)
is, or includes, alienated Crown land, ensure that the
estates and interests
in that land of persons (other than the
Crown) are acquired by the Crown by surrender or otherwise; and
(e) after any acquisition referred to in paragraph (d) has been
effected in relation to land and a Land
Trust has been
established in accordance with paragraph (c) in respect of
that land, recommend
to the Governor-General that a grant of
an estate in fee simple in that land be made to that Land
Trust.
11. (4) In this section, "relevant Aboriginals", in relation to an area of land, means Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission."
The appellants put their claim for judicial review upon two bases. Their primary argument was that the Minister had improperly exercised his power under s. 11(1) of the Land Rights Act in that he failed to take into account a relevant consideration, namely the full extent of the effect on Ranger 68 of a land grant. They argued that the Minister's obligation to take into account detriment as a relevant consideration extends beyond matters the subject of comment in the Commissioner's report, first, to the updating of material factors already mentioned in the report; secondly, to the correction of errors and uncertainties apparent in the report concerning detriment; and thirdly, to material factors which came into existence after the Commissioner's hearing. Their secondary argument was that there was a constructive failure of the Minister to pay any regard whatever to the Commissioner's comments on the subject of detriment.
The question raised by the appellants' primary argument is whether the
Minister's decision was an invalid exercise of the power
conferred by s.11 of
the Land Rights Act because of a failure to take into account a relevant
consideration. The basic principles governing judicial review on this ground
are not in dispute. In Associated Provincial Picture Houses Limited v
Wednesday Corporation [1947] EWCA Civ 1; (1948) 1 K.B. 223 at p.228, Lord Greene M.R. set out the
principle in these terms:
"The exercise of such a discretion must be a real exercise of the
discretion. If, in the statute conferring the discretion,
there is to be
found expressly or by implication, matters to which the authority
exercising the discretion ought to have
regard, then in exercising the
discretion, they must have regard to those matters. Conversely, if the
nature of the subject
matter and the general interpretation of the Act
make it clear that certain matters would not be germane to the matter
in
question, they must disregard those irrelevant collateral
matters."
And in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) A.C. 997
at p. 1058, Lord Reid said:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the Court."
Thus, what constitutes a relevant consideration in any particular case depends both upon the nature and qualities of the power itself as revealed by analysis of the statute conferring it, as well as on the concrete circumstances in which it is being exercised. Where the power in question is one conferred by statute, the relevance of a given factor is to be determined first by seeing whether the statute itself sets out a list of factors which must be taken into consideration. If there is such a list and the factor in question does not fall within it, it must then be determined whether the list was intended to be exhaustive.
The respondents relied heavily upon a dictum of Deane J. in Sean Investments
v Mackellar (1981) 38 A.L.R. 363 at p. 375 that:
"In a case such as the present, where relevant considerations are
not specified, it is largely for the decision maker,
in the light of
matters placed before him by the parties, to determine which matters he
regards as relevant and the comparative
importance to be accorded to
matters which he so regards. The ground of failure to take into account
a relevant
consideration will only be made good if it is shown
that the decision maker has failed to take into account a consideration
which he was, in the circumstances, bound to take into account for there
to be a valid exercise of the power to decide."
It would hardly be correct to describe the legislation in the present case as legislation where relevant considerations were not specified. The detriment which would be occasioned to persons in the position of the appellants is specifically mentioned in the statute. In my opinion where material which is relevant to such detriment is before the Minister, it would not be a proper performance of his function under the statute to pay no regard to it.
Sub-section 50(3) of the Land Rights Act requires the Commissioner to
comment on
"the detriment to persons or communities . . . that might result if
the claim were acceded to either in whole or
in part".
In R. v Toohey; Ex Parte Meneling Station (1983) 57 A.L.J.R. 59 the High Court
was called upon to decide whether the matters mentioned
in paras. (a) to (d)
of sub-s. 50(3), upon which the Commissioner must comment, must be taken into
account by him in deciding whether
to recommend to the Minister that a land
grant should be made. The Court held (Gibbs C.J., Murphy, Wilson and Brennan
JJ., Mason
J. dissenting) that the Commissioner's recommendations must be
based solely on his findings first as to whether there are Aboriginals
who are
the traditional Aboriginal owners of the land and secondly as to the strength
or otherwise of the traditional attachment
by the claimants to the land
claimed. In several of the judgments, passing reference is made to the
position of the Minister in coming
to a decision after receipt of the
Commissioner's report. Gibbs C.J. (at p. 61) stated that
"The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in paragraphs (a) to (d), including the detrimental effect of acceding to the claim. To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so in a way that will enable to the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made. But the ultimate weight to be given to these matters is for the Minister to decide."
Wilson J. (at p. 67), with whom Murphy J. agreed, considered thatthe benefit of Aboriginals who have a strong traditional claim to it, that construction of section 50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such a claim, a grant should be made. The matters which are listed in section 50(3) as the subject of comment in the report are matters which expose for the consideration of the Minister the implications of a decision by him to make a grant."
"The policy of the Act being to facilitate the grant of land for
These passages are in no way determinative of the question whether the
Minister is in truth required by law to take account of any
material which
might come into his hands relating to those matters set out in paras. (a) to
(d). The only member of the High Court
to address that problem directly was
Brennan J. who stated (at p. 72)
"The factors referred to in paragraphs (a) to (d) of section 50(3)
are factors which are relevant to a political decision, a decision which
has regard to all circumstances relevant to
the question whether a grant
should be made . . . .
In making his decision the Minister needs to have knowledge of the several matters referred to in paragraphs (a) to (d) of section 50(3). . . . The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owner's needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to in paragraphs (a) to (d) of section 50(3)."
In exercising his discretion under s.11 the Minister is not bound by the recommendation of the Commissioner, and the ultimate weight to be given to the matters mentioned in paras. (a) to (d) of sub-s.50(3), including the question of detriment, is for the Minister to decide. Moreover, his consideration of the matters mentioned in paras. (a) to (d) of sub-s.50(3) is nowhere confined by any express provision in the statute simply to the Commissioner's comments upon them.
Although the relevance to the Minister's decision of potential detriment to the appellants is clear enough, the argument for restricting the Minister's obligation to consideration only of the Commissioner's report is based upon the fact that the Act itself has provided a procedure for the taking into account of that detriment. This procedure comprises the hearing of submissions by interested parties, their evaluation by an independent statutory officer, and their presentation in the form of a report for consideration by the Minister. Thus the real question at issue is whether the statutory procedure displaces the result which would ordinarily follow, namely, that the Minister is required to consider any material relating to detriment at the time at which he makes his decision and from whatever source it might come into his hands.
In my opinion, the procedure of hearings before the Commissioner does not oust the Minister's duty. The respondents argued that the division of functions between the Commissioner and Minister was designed to avoid the requirement that the Minister himself embark upon a fact finding mission. This is correct insofar as the Minister is not himself required actively to seek out facts beyond those reported by the Commissioner. But where new facts concerning detriment are brought to the Minister's attention prior to the decision being made, the Minister would not be performing correctly his function under the statute, if he simply disregarded those facts and proceeded on what, according to the facts before him, was a false basis.
The second respondent placed weight upon the fact that it was not shown that the appellant's submission was brought to the attention of the Minister who made the decision, Mr. Holding, but only to that of a predecessor. But the submission of the appellants was in the possession of the Department and must have come to the attention of senior officers of the Department. In those circumstances, knowledge of it can be attributed to the Minister.
The submission disclosed highly relevant facts on the question of detriment and in my opinion ought to have been taken into account by the Minister in making his decision. This conclusion is supported by the possibility that there may be some considerable lapse of time between the presentation of the Commissioner's report and the Minister's decision, as in fact happened in the present matter. Where facts have changed or new facts have emerged it appears to me that the Minister cannot disregard the material which is before him and, as I have said, proceed upon a basis which may in the light of that material, be a false basis.
I therefore hold that the Minister's decision of 15 March 1983 was an improper exercise of the power conferred by s.11(1) of the Land Rights Act on the ground that the Minister failed to take into account a relevant consideration in making his decision. This conclusion makes it strictly unnecessary to decide the ground advanced in the appellants' secondary argument. Nevertheless there is evidence that the Commissioner's comments on potential detriment to the appellants did come to the attention of the Minister, and I therefore reject the secondary argument.
It remains to consider whether as a matter of discretion the appellants should be accorded a remedy. Section 16 of the Judicial Review Act provides that on an application for an order of review in respect of a decision, the Court has a discretion to make various orders. One situation where the Court may be inclined to refuse a remedy on discretionary grounds is where the applicant for review is himself responsible for the prejudice which has accrued to him. The respondents point out that the fact which the present appellants wish the Minister to consider was known to them at the time of the hearing before the Commissioner, and they argue that having made a deliberate decision not to disclose that fact unambiguously in their evidence, the appellants must put up with the consequence that the Commissioner made an erroneous finding with respect to it.
In reply to that, the appellants claim that they had valid commercial reasons for revealing only such information concerning the location of Ranger 68 as was necessary to achieve the result desired by them, that is, the excision of the Barote lease areas as a whole. Those lease areas adjoined mineral interests of Pancontinental Mining Limited and it was a matter of importance to Peko-EZ not to disclose the precise location of Ranger 68 in a way which would indicate to their competitors the "underlying geology" of the region. The second respondent claimed that in that case the appropriate course to follow would have been to ask the Commissioner to take the evidence in closed session, as had already been done in a number of matters concerning secret material pertaining to Aboriginal tradition. In retrospect the appellants may well have elected to follow such a course. But at the time they were giving evidence before the Commissioner, the appellants were seeking the excision of the entire Barote lease areas. It was only when the Commissioner's report recommended that a grant be made in respect of the Mirrar Kundjey'mi land but not in respect of the Dadjbaku land, that the precise location of Ranger 68 in the Barote lease block became an important question. Steps were then taken to inform the Minister (at that time Senator Baume) that it was in that part of the Barote lease block which was within the Mirrar Kundjey'mi area. It is true that the appellants, by putting their claim to the excision of the Barote block on an "all or nothing" basis, in effect refused to give the Commissioner any factual assistance should he be minded to excise any sites of particular mineralisation, but not to go so far as excising the block as a whole. Nor did they appear to contemplate the possibility (which actually happened) that the Commissioner could recommend the grant of one claim, while rejecting the adjoining claim. But both these circumstances are more in the nature of tactical errors on the part of the appellants than conduct which ought to disentitle them to relief. Had they deliberately put forward a false case to the Commissioner it would, in my opinion, be a ground for refusing them relief. But in omitting to put forward particular facts, which in certain eventualities would be of assistance to their case, and in allowing Mr. Elliston's vague and inaccurate evidence as to "location" of Ranger 68 to stand uncorrected, their conduct, in my view, fell short of a deliberate misleading of the Commissioner. It rather seems to reveal mistake or carelessness in the presentation of their case.
It is clear from the legislation that detriment is a relevant and important factor to be placed before the Minister. If, as seems to be the case, the particular detriment as put forward in the appellants' submission to Senator Baume was not considered by Mr. Holding, it would follow that he has not taken a relevant consideration into account.
It is appreciated that to require the Minister to take such matters into account may raise practical difficulties. However, it is for the Minister to determine how he will deal with such a situation and whether he will decide it himself or make some reference to the Commissioner in regard to the facts. Certainly an opportunity should be given to the Northern Land Council to put their views, should they wish to do so.
As to what result will flow from such consideration I have nothing to say. This is a matter for the Minister. But the evident purposes of the legislation will have been served.
In exercising the discretion under s.16 I place on one side of the scales the crucial significance of the true location of Ranger 68 to a proper assessment of the detriment which may be caused to the appellants by the land grant. On the other side of the scales I place the fact that the appellants are the creators of their own injury, but in circumstances which to my mind involve mistake or carelessness rather than blameworthy conduct; and on this side of the scales I place the prejudice which will accrue to the claimants in having their land grant put at risk.
In the result, I am of opinion that this is a proper case for relief. I would allow the appeal.
So far as the cross-appeal is concerned, this relates to order 2 made by the learned primary Judge. This provided that his order dismissing the application be without prejudice to any rights of the applicants (appellants) to bring fresh proceedings claiming relief pursuant to s.50(1) (d) or s.51 of the Aboriginal Land Rights (Northern Territory) Act 1976. The question whether the Minister acts under s.50(1) (d) or s.51, is a matter for him. The appellants conceded that order 2 added nothing to their rights. I would allow the cross-appeal but make no order as to costs in respect of it. Little time was spent upon it.
I would order that:matter be remitted to him to decide in accordance with law;
1. the appeal be allowed;
2. the cross-appeal be allowed;
3. the orders of Beaumont J be set aside;
4. the decision of the first respondent be set aside and the
5. the first respondent pay to the appellants their costs of the appeal and of the proceedings before Beaumont J. I would make no order for costs in relation to the second respondent.
This is an appeal from a judgment of a single judge of this Court (Beaumont J.) in which, subject to a qualification later to be mentioned, he dismissed an application for judicial review by the appellants. The application made by them to his Honour was for the review of a decision said to have been made on 26 April 1983, but in fact made on 15 March 1983, to grant to a Land Trust for the benefit of Aboriginals certain land in the Northern Territory in respect of which the applicants have pending applications for mining leases. The decision to make the grant was made pursuant to s. 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act").
The second respondent to the application is the Northern Land Council. It was the claimant for the grant of the land and is a land council constituted pursuant to s. 21 of the Act.
Before I come to the facts of the matter and the submissions of the parties
I set out the relevant provisions of the Act. Paragraphs 11(1) (a) and (b) are
as follows:-
"11. (1) Where-commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1) (a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and
(a) the Commissioner has, before the
(b) the Minister is satisfied-to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or
(i) that the land, or a part of the land, should be granted
(ii) that different parts of the land should be granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are the relevant Aboriginals in relation to that last-mentioned land,"
Paragraphs (a) and (b) are followed by three further paragraphs, (c), (d) and (e). I do not set these out. The provisions of para. (c) require the Minister, if the conditions provided for in paras. (a) and (b) are satisfied, to establish either a single Land Trust or different Land Trusts depending upon the circumstances of the case. It is unnecessary to refer to the provisions of para. (d) and (e).
Section 12 provides for the grant of land to Land Trusts.
Part IV of the Act deals with mining interests and mining operations. Section 40 provides for the grant of mining interests in Aboriginal land. Such an interest is not to be granted unless both the Minister and the Land Council for the area in which the land is situated have consented in writing to the making of the grant or the Governor-General has, by proclamation, declared in the national interest that the grant be made. The expression "mining interest" is defined in s. 3 of the Act to mean any lease or interest in land granted under a law of the Northern Territory relating to mining for minerals.
The Commissioner referred to in sub-sec. 11(1) of the Act is the Aboriginal
Land Commissioner constituted by s. 49 of the Act. Section 50 provides for the
functions of the Commissioner; sub-secs. (1), (3) and (4) of s. 50 are as
follows:-
"50. (1) The functions of the Commissioner are-behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals-
(a) on an application being made to the Commissioner by or on
(i) to ascertain whether those Aboriginals or any other
Aboriginals are the traditional Aboriginal owners of the
land;
and
(ii) to report his findings to the Minister and to the
Administrator of the Northern Territory, and, where he finds
that there are Aboriginals who are the traditional
Aboriginal owners of the land, to make
recommendations
to the Minister for the granting of the land or any part
of the land in
accordance with sections 11 and 12;
(b) to inquire into the likely extent of traditional land claims
by Aboriginals to alienated Crown land
and to report to
the Minister and to the Administrator of the Northern Territory, from time to
time, the results of his inquiries,
(c) to establish and maintain a register of the
traditional land claims referred to
in paragraph (b);
(d) to advise the Minister in connexion with any
other matter relevant to the operation
of this Act that is
referred to the Commissioner by the Minister; and
(e) to advise the Minister and the Administrator of the
Northern Territory in connexion with any
other matter
relating to land in the Northern Territory that is referred to the
Commissioner by the Minister with the
concurrence of the
Administrator of the Northern Territory.
(3) In making a report in connexion with a traditional land
claim the Commissioner shall have regard to
the strength or
otherwise of the traditional attachment by the claimants to the land
claimed, and shall comment
on each of the following
matters:
(a) the number of Aboriginals with traditional
attachments to the land claimed who
would be advantaged, and
the nature and extent of the advantage that would accrue to
those Aboriginals, if
the claim were acceded to either in
whole or in part;
(b) the detriment to persons or communities including other
Aboriginal groups that might result if the
claim were acceded
to either in whole or in part;
(c) the effect which acceding to the claim
either in whole or in part would have on the existing or
proposed patterns of land usage in the region; and
(d) where the claim relates to alienated Crown
land - the cost of acquiring the interests
of persons (other
than the Crown) in the land concerned.
(4) In carrying out his functions the Commissioner shall have
regard to the following principles:
(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic
group to which they
belong but do not have a right or entitlement to live at that place
ought, where practicable,
to be able to acquire secure
occupancy of that place;
(b) Aboriginals who are not living at a place on the
traditional country of the tribe or linguistic
group to which they
belong but desire to live at such a place ought, where practicable,
to be able to acquire
secure occupancy of such a place."
Section 51 empowers the Commissioner to do all things necessary or convenient to be done for or in connection with the performance of his functions.
Section 50 of the Act was considered by the High Court in Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Limited (1982) 57 A.L.J.R. 59. In that case the appellants sought to argue that the Commissioner himself was bound to take into account the matters provided for in sub-sec. 50(3) before making recommendations pursuant to para. (1) (a) of the section. In particular it was submitted that the Commissioner was bound to take into account the matters provided for in para. (3) (b), that is, the detriment to persons or communities, including other Aboriginal groups, that might result if the claim were acceded to.
By majority the High Court rejected that submission. Gibbs C.J. said (p.
61):-
"When the section directs the Commissioner to "have regard to" the
strength or otherwise of the traditional attachment
by the
claimants to the land claimed (sub-s. (3)), and to the principles set
out in sub-s. (4), it requires him to take
those matters into
account and to give weight to them as a fundamental element in making
his recommendation: cf. Re R.J.D.
Hunt; Ex p. Sean Investments Pty. Ltd.
(1979), 53 A.L.J.R. 552, at p. 554. When the section directs him
to comment
on the matters mentioned in pars. (a) to (d) of sub-s. (3),
it requires him to remark upon those matters and to express
his views
upon them. The change in language is so significant that
notwithstanding the difficulties of the section I
find it impossible to
reach any conclusion other than that a significant change of meaning is
intended, and that the
matters which form the subject of the
comment are not matters to which the Commissioner is bound to have
regard in making
his recommendation.
Although the form of the section is curious, the result is understandable. The governing principles, expressed in sub-s. (4), are that Aboriginals who by choice live at a place on the traditional lands of their tribe or linguistic group, or who wish to live at such a place, should, where practicable, be able to acquire secure occupancy of that place, or of such a place, as the case may be. The Commissioner must, in making his recommendation, have regard to this general principle, and to the strength or otherwise of the traditional attachment of the claimants to the land claimed in the particular case. If he recommends that an area be granted to a land trust it then becomes a matter for the Minister, acting under s. 11, to decide whether or not he is satisfied that the land or any part of it should be so granted. The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in pars. (a) to (d), including the detrimental effect of acceding to the claims. To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so in a way that will enable the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made. But the ultimate weight to be given to these matters is for the Minister to decide."
Wilson J., in whose judgment Murphy J. concurred (p. 65), said (p. 67):-his task. In weighing up the competing considerations which are provoked by the wording of s. 50, I am influenced particularly by the fact that s. 11 controls the scope of the discretion accorded to the Minister, indeed its very existence, by reference to a recommendation of the Commissioner. In my opinion, the Act recognizes the political character of a decision to grant traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals. It is consistent with that recognition to require the Commissioner to determine judicially the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s. 50(4), to make recommendations for the granting of the land claimed or any part of it. Those matters, and hence the recommendation, determine whether any grant at all can be made. If the Commissioner's recommendation was to be made in the exercise of a judicial discretion which had regard to the matters listed in the pars. (a) to (d) of s. 50(3), it might sometimes be the case that notwithstanding the satisfactory proof of a strong traditional claim, the Commissioner would be led by considerations extraneous to that claim to refrain from making a recommendation. In that case, whatever the Minister's wishes might be, he would be precluded from even considering the making of a grant. The policy of the Act being to facilitate the grant of land for the benefit of Aboriginals who have a strong traditional claim to it, that construction of s. 50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such a claim, a grant should be made. The matters which are listed in s. 50(3) as the subject of comment in the report are matters which expose for the consideration of the Minister the implications of a decision by him to make a grant."
"In my opinion the Commissioner has adopted the correct approach to
Brennan J. said (p. 72):-
"It is not said that the Commissioner failed to comment upon these matters in his report, but that he failed to take them into account in making his recommendation. If the Commissioner were required or entitled to have regard to these matters in making his recommendation, his function would be very different from the function of determining whether there is a local descent group whose traditional attachment to the land makes it right that a grant of land be made. The factors referred to in pars. (a) to (d) of s. 50(3) are factors which are relevant to a political decision, a decision which has regard to all circumstances relevant to the question whether a grant should be made. The political decision and the administrative action required to implement it are functions reposed in the Minister by s. 11(1)."
Later he said (p. 72) that the weighing of the considerations specified in sub-sec. 50(3) and of all other relevant considerations in deciding whether a grant should be made was appropiately a matter for a minister, not for a judge "- particularly when the question for decision was pregnant with political controversy." He also said that in reaching his decision the Minister was bound to have regard to the Commissioner's comments upon the matters referred to in paras. (a) to (d) of sub-sec. 50(3).
The land in question was the subject of a report by the Commissioner pursuant to s. 50 of the Act. The report is known as the Alligator Rivers Stage II Land Claim. Prior to making his report the Commissioner conducted an enquiry at which were represented a number of interests including the present appellants. They were represented by senior counsel who made extensive submissions on their behalf. Their purpose was to persuade the Commissioner not to recommend the grant of lands which were the subject of a number of applications for mining leases.
The Commissioner dealt with these submissions in a number of paragraphs of
his report, including paras. 297-304. Commencing at para.
314 the Commissioner
dealt extensively with detailed submissions made on behalf of the appellants
in relation to the detriment which
would be suffered by them if the land were
the subject of a grant. These included reference to the difficulties the
appellants might
expect to have if they had to resort to the provisions of s.
40 of the Act to obtain their right to mine. The Commissioner summarised the
submissions which were made to him in para. 321 which was as follows:-
"321. In view of the complexities surrounding the position of these
companies, it may be helpful to summarise what
has been said in
the preceding paragraphs.
(a) Peko E-Z has been exploring within the claim
area since 1967.
(b) Most of the exploration work was carried out
before the Land Rights Act came into operation.
(c) As a result of the 'freeze' that followed
the Second Report of the Aboriginal Land
Rights Commission,
530 uranium mineral lease applications lodged within the
Alligator Rivers Region and
recommended by the Warden have
proceeded no further. Most of these are west of the land
recommended in
this report.
(d) The companies have spent more than $6
million under exploration licences now expired,
and hundreds
of thousands of dollars on lease applications.
(e) The acquisition by the Commonwealth of
Mudginberri and Munmarlary pastoral leases
has not
extinguished mineral leases and applications on that land.
The companies now hold their interests
from the
Commonwealth.
(f) The Northern Territory Government, while
administering the granting of mining titles
for the
exploration and mining of resources, requires the concurrence
of the Federal Minister to
specific grants of
title relating to prescribed substances.
(g) This land claim aside, the companies have a
reasonable expectation of maintaining
their existing mining
tenements and securing the grant of fresh titles.
(h) The land claimed may become a conservation
zone; this is unlikely to affect the
mineral leases and
applications held by Peko E-Z.
(i) The power of a Land Council to refuse
consent to mining on Aboriginal land is not
of itself a
detriment within s. 50(3)(b) of the Land Rights Act.
(j) But the power is a potential source of
detriment in so far as the companies have
incurred
substantial expenditure in the reasonable expectation of
obtaining mineral leases. That expenditure may
be jeopardised
and problems of access may arise if the land claimed
becomes Aboriginal land. This
possible detriment is
considerably lessened by the fact that only the eastern
prospects of the
companies fall within the land recommended
for a grant."
The emphasis in sub-paras. 321(c) and (j) is mine. With the statements there
made should be read para. 320 of the report which is
as follows:-
"320. Naturally, the Peko E-Z submissions were based on the possibility that all of the land claimed might become the subject of a grant to a Land Trust. In view of the recommendations in this report, most of the Barote block of mineral lease applications falls outside the land recommended for a grant as do any prospects further west. The prospects affected are those north of Jabiluka in Bunidj and those south of Jabiluka in Mirarr Kundjey'mi. All aspects of detriment must be qualified accordingly."
The Commissioner's report was presented to the then Minister for Aboriginal Affairs, Senator Baume, on 2 July 1981. The report was, of course, in respect of areas of land much more extensive than that with which the appeals were concerned. The report was the subject of challenge in the High Court in the Meneling Station case earlier referred to. The purpose of the litigation was to compel the reconsideration of the claim by the Commissioner. As mentioned, the challenge to his report failed.
The land with which the appellants are concerned is delineated on a map which is attached to the judgment of Beaumont J. In the result much of this land was not made the subject of a recommendation for a grant but some was. The land delineated on the map includes a number of parcels marked in green. One of the largest parcels is known as the Barote area. The greater part of this area was not recommended for a grant but part was.
In 1982 grants were made of the land which the Commissioner recommended should be the subject of a grant excluding therefrom the parcels of land which were the subject of mining lease applications by the appellants. The smaller portion of the Barote area which fell within the area recommended for grant was excluded at that time.
In April 1981 there began a series of submissions and representations, some in writing and some made orally, by the appellants not only to the Minister for Aboriginal Affairs but to other Ministers of the then Government as well. The detail of these submissions is set out extensively in his Honour's judgment but I find it necessary to refer to some of the detail again. The submissions commenced with letters dated 13 April 1981, that is, before the Commissioner had reported. The submissions were acknowledged on 1 June 1981 by the then Minister who said that it was his intention to table the Commissioner's report and to take no action on it until all parties interested had had a reasonable opportunity to examine its contents "and decide whether they wish to lodge a legal challenge."
On 2 September 1981, after the report had been made, more submissions
followed. A further letter was written on 25 September 1981
referring to a
meeting with two Ministers other than the Minister for Aboriginal Affairs.
Amongst other things, the letter of 25
September 1981 said that para. 321(j)
of the report which I have earlier quoted understated the detriment which the
appellants might
suffer as a result of the adoption of the recommendation. The
letter of 2 September was acknowledged by the Minister who said that
he had
noted the submission and would take it into account when making his decision
on the land claim. The submission itself is an
extensive document which dealt
with a number of matters. Importantly, for the purposes of the present case,
it revealed more precisely
than had been done in evidence before the
Commissioner, the position of one prospect known internally in the companies
as Ranger
68. The submission said:-
". . . because Peko and EZ did not reveal the exact location of
this prospect at the hearing; the Commissioner was
only aware that
it was within the Barote block of leases, 90% of which are on land
unsuccessfully claimed by the Dadjbaku.
The Commissioner was not
specifically aware that Ranger 68 turned out to be just within the
western boundary of land
recommended for grant to the Mirarr Kundjey'mi
and the qualification in paragraph 320 must be read accordingly.
Ranger 68 has only been partially drilled and awaits complete
delineation, but there would appear to be no doubt
that in it Peko and
EZ have discovered a major uranium orebody. Although only preliminary
drilling results are available,
Mr. J. N. Elliston, a Director and
the Group Executive-Technology of Peko-Wallsend Ltd., gave evidence that
he
estimated that the Ranger 68 site "may include ore at grades
suggesting a minimum U308 content of about 5,500 tonnes,
worth at
current prices some $280 million" (paragraph 302). Of all of Peko and
EZ's indicated prospects within the total
claim area, at this
stage of development it would appear Ranger 68 is by far the most
valuable."
The emphasis is in the original submission.
Mr. Elliston had given evidence before the Commissioner in which he had said that Ranger 68 was in the centre of the Barote area. How he came to make this mistake is not explained. But, according to the submission, an error had been made because Ranger 68, which was regarded as the most valuable prospect, was in fact towards the eastern boundary of the Barote area and within the area recommended for a grant. If Mr. Elliston's evidence had been correct, Ranger 68 would have been outside the area recommended for grant.
The area so recommended was only part of the area claimed by the Northern Land Council. It had claimed a much larger area. The parties represented before the Commissioner could not have known what recommendation the Commissioner would make. The appellants' fear during the hearing would have been that he might recommend the grant of the whole of the Barote area, not just a fraction of it as turned out to be the case; see paras. 320 and 321(c) and (j) of the report earlier quoted (pp. 10-12).
A principal purpose of the submission of 2 September 1981 was to correct the mistake which had been made. I should mention at this point that there was some discussion during the argument of the question whether there was evidence that Ranger 68 was within that portion of the Barote area which had been recommended for grant. It seems to me that there is evidence which establishes that it was within the area which was the subject of the recommendation. The application for judicial review was supported by an affidavit of a solicitor, Mr. D.J. Barnett, who is employed as group counsel by some of the appellants. Without objection, he said in his oral evidence that Ranger 68 was in that part of the Barote area which was the subject of the recommendation for grant. In my opinion that evidence, which was not contradicted and which was given without objection, should be accepted. That appears to have been the course taken by the learned primary Judge. No submission was made to him that there was no evidence or unsatisfactory evidence on this matter.
There was further correspondence concerning the question of whether the appellants would challenge the Commissioner's decision in the High Court. They decided to challenge it and, as I have said, that led to the Meneling Station litigation.
The Minister asked for full descriptions of the land in respect of which the appellants claimed they would suffer detriment if the Commissioner's recommendation was adopted. These particulars were supplied.
Towards the end of 1982 Senator Baume ceased to be the Minister for
Aboriginal Affairs and Mr. I.B.C. Wilson became the Minister.
On 24 December
1982 the appellants wrote to Mr. Wilson, drawing his attention to the problem
that they faced and mentioning the submissions
which had earlier been made.
They sought an interview with him further to discuss the matter. On 1 February
1982 Mr. Wilson wrote
to the appellants in the following terms:-
"Thank you for your letter of 24 December 1982 concerning
Aboriginal land claims in which companies in the Peko group
have been
involved.
Let me assure you at the outset that the group's interests will be
carefully considered when I make my decisions
on these claims. I
note that Peko was represented by legal counsel, and also made written
submissions, at each of the
four completed land claim hearings mentioned
in your letter. I note also that the Aboriginal Land
Commissioner's
reports on those land claims include detailed comments on
the detriment which Peko companies might suffer if the areas
claimed are
granted to Aboriginal Land Trusts.
In all the circumstances I am satisfied that a meeting with representatives of Peko is not necessary at this time, as the group's interests have already been comprehensively articulated."
There followed the grant of the land in respect of which the appellants had no interest but otherwise nothing further appears to have occurred in 1982.
On 5 March 1983 the then Government was defeated at a general election. On 11 March 1983 Mr. A.C. Holding, the present Minister, took office. Also on 11 March 1983, Mr. George Stern, the Acting Assistant Secretary, Land and Mining Branch of the Department of Aboriginal Affairs, prepared a memorandum addressed to the new Minister headed, "Northern Territory Land Claims Awaiting Decisions." The reason for the memorandum was said to be to inform the Minister of the seven Northern Territory land claims which had been heard by the Commissioner and which were awaiting decision. The memorandum set out shortly what were the Commissioner's functions and what were those of the Minister. The statements made were simple summaries of the relevant legislative provisions as interpreted by the High Court in the Meneling case. Paragraph 6 dealt with the Department's role and said, amongst other things, that where it was apparent that serious detriment could result from a grant it might recommend either an excision from the land to be granted or that the Minister first seek assurances from the relevant Land Council as to the means by which the interests of other parties "might be accommodated should a grant be made." There were then listed particulars of the seven outstanding claims, a reference to the date of the report and the date the report was tabled. The report in question in the present case was apparently tabled on 25 March 1982, over eight months after it was delivered. A summary of the Commissioner's comments on detriment and the action which the Department recommended the Minister take in respect of each of the claims was attached. There were then some matters of detail to which it is unnecessary to refer and the memorandum concluded.
The attachment comprises a schedule setting out each of the areas in question.
The schedule had four columns, the first headed, "Claim",
the second headed,
"Date of Commissioner's Report", the third headed, "Commissioner's Comments on
Detriment", and the fourth, "Action
Recommended by Department." The relevant
portion of the schedule is as follows:-
"Alligator Rivers 2.7.81 Potential detriment We recommend"Approved for action." There follow the initials of the Minister and the date, "15 March 1983." It is the decision made by the Minister on 15 March 1983 which the appellants seek to have reviewed.
to Peko-EZ who have that the nine
applied for a blocks of land
number of mineral be granted.
leases, some of Decision to be
which will be conveyed to
subject to NT Government,
Aboriginal veto NLC and Peko-
and all of which EZ."
will require
negotiation of an
agreement with the
Northern Land
Council.
Alongside this part of the attachment is handwritten notation which says,
On 26 April 1983 the Minister wrote to the appellants in the following
terms:-
"A number of areas over which Peko-EZ had applied for mineral
leases were included in the land recommended for grant
by the former
Aboriginal Land Commissioner, Mr. Justice Toohey, in his report on the
Alligator Rivers Stage II land claim.
A decision on those areas
was deferred pending consideration by the High Court of
applications for writs of mandamus
and prohibition, arising from the
Finniss River land claim report.
I wish to inform you that I have decided that those areas should
be granted to an Aboriginal Land Trust in accordance
with the
Commissioner's recommendation.
I have written in similar terms to Mr. Mackay of the Electrolytic Zinc Company of Australasia Limited."
Pursuant to the provisions of the Freedom of Information Act 1982, the
appellants then made application for access to a number of documents. They
also made a request for reasons for the Minister's
decision pursuant to s. 13
of the Administrative Decisions (Judicial Review) Act 1977. A number of
documents were provided pursuant to the request made under the Freedom of
Information Act. On 24 May 1983 the Minister furnished a document pursuant to
s. 13 of the Judicial Review Act setting out his findings on material
questions of fact, the evidence on which those findings were based and his
reasons for decision.
The findings on material question of fact were said to
be based upon the Commissioner's report, a copy of which was sent to the
applicants.
The evidence was said to be that referred to in the report, both
in the text thereof and in the maps and lists of exhibits and witnesses.
The
reasons for decision were expressed as follows:-
"In accordance with s. 11 of the Aboriginal Land Rights (Northern
Territory) Act 1976 (the Act) I am satisfied that
this land should
be granted to an Aboriginal Land Trust for the benefit of relevant
Aboriginals because
(i) the relevant Aboriginals are entitled to have title to
their traditional land;
(ii) the Act provides a scheme whereby persons wishing to
use and occupy Aboriginal land can negotiate
with a
Land Council, acting on behalf of relevant Aboriginals, for the
use and occupation of that land; and
(iii) the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended."
The application for review was filed on 23 June 1983.
The proceedings were heard at first instance on 4 and 5 April 1984. On 4 April 1984 the appellants called on two subpoenas for the production of documents, one directed to the Minister and one to the Department. The subpoena was answered and the documents produced became Exhibit J. The subpoena sought production, inter alia, of all documents and copies thereof considered by the Minister or to which he had reference in coming to his decision. The documents produced pursuant to that paragraph did not include any of the letters written to the previous Ministers or the submission of 2 September 1981 correcting the whereabouts of Ranger 68 in the Barote area.
In the course of the proceedings before the learned primary Judge it was agreed that the material attached to Mr. Barnett's affidavit and addressed to Senator Baume and Mr. Wilson had come into the possession of the Department and was in the Department's possession at all material times.
His Honour made findings concerning the material which was before the
Minister when he made his decision. His Honour said:-
"I would infer from the documentary material before him at the time of his decision that no such material (that is, the submission made after the report) was taken into account: no reference at all is made to it in the departmental brief and I therefore find that, for reasons not explained, it was not drawn to his attention."
Counsel for the appellants made two broad submissions. Both submissions had been made before his Honour and rejected by him. Counsel described his first submission as his primary argument and his second submission as his secondary argument. The secondary argument was not relied upon before us with any degree of enthusiam. The primary argument was based on the failure of the Minister to consider the submissions made subsequent to the report and to which I have referred. Particular reliance was placed on the Minister's failure to consider the correction of the position of the site of Ranger 68 which was made in the submission of 2 September 1981. The secondary argument was that there was a constructive failure on the part of the Minister to consider the question of detriment at all. This was based upon the scant evidence which there is of the Minister having read or considered the report of the Commissioner and upon the elliptical and vague way in which the recommendation made to the Minister by Mr. Stern was expressed.
In addition to submitting that each of the appellants' arguments should be
rejected as ill-founded, the respondents submitted that,
in any event, the
application should be dismissed on discretionary grounds. A further issue
which arises for consideration is an
issue raised by a cross-appeal brought by
the respondents. The respondents seek to have his Honour's order of dismissal
varied by
deleting therefrom the qualification which he imposed. The relevant
part of his order was as follows:-
"2. Order that such dismissal shall be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to s.50(1) (d) or s.51 of the Aboriginal Land Rights (Northern Territory) Act, 1976."
So there are four issues, namely:-into existence after the Commissioner's report was delivered on 2 July 1981? In particular, was he bound to take into account the correction of Mr. Elliston's evidence which was made in the submission of 2 September 1981?
(1) Was the Minister bound to take into account the material which came
(2) Was there a constructive failure of the Minister to
consider detriment?
(3) Should the application in any event have been dismissed on
discretionary grounds?
(4) Should the qualification to his Honour's order remain?
His Honour was of opinion that there was no obligation on the Minister to consider matters detrimental to the appellants unless those were matters referred to and commented upon in the report. In his view the failure of the Minister to have regard to the submissions and letters written after 2 July 1981 was of no legal consequence or significance.
His Honour was of opinion that there was no failure, constructive or
otherwise, properly to consider whether the claim should be
granted. Of this
he said:-
"It is true that, given the undoubted gravity of the detriment to be suffered by the applicants, it is strange that so little comment, explication or even information on the point is to be found in the departmental brief. However, the paucity of this material and the lack of any attempt at weighing or evaluating the respective claims of the traditional Aboriginal owners on the one hand and those of the applicants on the other cannot, in my view, justify the inference urged by the applicants that the first respondent totally failed to direct his mind to these questions. It follows, in my view, that the applicants are unable to demonstrate a constructive failure on the part of the first respondent to have regard to the Commissioner's comments on detriment in their case. I therefore reject their secondary argument also."
As to discretion his Honour expressed the view that if the appellants,
contrary to the conclusions at which he had arrived, had
been right in the
matters relied upon, a real question would have arisen as to whether, as a
matter of discretion, the Court should
give relief. He added:-
"As has been said, Mr. Elliston was not called in this proceeding and, although a degree of confidentiality was claimed before the Commissioner in respect of the "precise delineation" or Ranger 68, this question was never raised in any formal way before the Commissioner, notwithstanding that it was open to the applicants to do so. If, then, the failure to identify the precise location of Ranger 68 relative to the several land claims arose as a result of a deliberate decision by the applicants to do so, such circumstances would constitute at least a relevant consideration in the exercise of the Court's discretion under s. 16 and could conceivably be seen as decisive against the exercise of the powers given by that provision in the present context."
The question of whether there should be a qualification to the order was not the subject of any argument before his Honour. But he indicated in his reasons why he thought the qualification should be made. His view was that in a proper case, a party in the position of the appellants might well be able to require the Minister to refer matters raised after the report back to the Commissioner pursuant to para. 50(1) (d) and s.51 of the Act. He was concerned that a bare dismissal might prevent the appellants from seeking relief of this kind. Of course, he expressed no view as to whether any such application would be successful.
I deal with each of the issues earlier formulated (p. 24) as follows:-way. A question arises as to whether the Minister was fixed with knowledge of the representations made to his predecessors. So far as the evidence disclosed, he was not informed of any of the representations made after the report. There is no reference to them in Mr. Stern's recommendation of 11 March 1983 and the answers to the subpoena referred to on p. 22 did not suggest that the Minister had been informed of the representations. His Honour found (p. 22) that he had not. Yet it was agreed that the material attached to Mr. Barnett's affidavit and addressed to Senator Baume and Mr. Wilson had come into the possession of the Department and was in the Department's possession at all material times.
(1) Some preliminary matters should first be put out of the
In support of his submission that the Minister was fixed with
knowledge of the representations, counsel for the
appellants relied
on In re Golden Chemical Products Limited (1976) Ch. 300. I do not
find in that authority
support for counsel's proposition. I think it
is concerned with a different problem; cf. Wade on Administrative
Law, 5th
Ed., p. 327. But I would hold that a formal submission made
to a Minister in relation to whether or not he should
adopt a
recommendation should be regarded as being made to him in his
capacity as Minister and should be treated
as a matter of which his
successors in office have knowledge. Due administration requires
this to be so.
I would respectfully adopt what was said by Cooke J. in
the New Zealand Court of Appeal in Daganayasi v. Minister
of
Immigration (1980) 2 N.Z.L.R. 130. His Honour said (p. 148):-
"Taken as a whole the observations of the House of Lords seem to me
to provide a strong foundation for holding at
least that the
traditional duty to take into account relevant considerations extends to
considerations which should have
been within the knowledge of the
Minister. Parliament would be unlikely to confer authority on the
Minister on
any other basis. Clearly, relevant facts which are
known to his department fall within this category."
The decision of the House of Lords to which his Honour referred was Secretary
of State for Education and Science v. Tameside Metropolitan
Borough Council [1976] UKHL 6;
(1977) A.C. 1014.
There is an obligation on relevant departmental officers to see to it that the
Minister of the day is adequately informed of all matters
relevant to a proper
consideration of the question in hand including those matters brought to the
attention of former Ministers.
I make it clear that I do not include in what I
have said representations made informally to a Minister personally and not
through
his department. What I have said applies only to formal
representations which form, as they did in the present case, part of the
departmental file kept in relation to the matter.
For the above reasons the Minister was fixed with knowledge of the various
representations made after the report notwithstanding that
he did not have
actual knowledge of them.
The other preliminary matter with which I should deal is the significance of
the letter written by Mr. Wilson on 1 February 1982 (p.
17). It was strongly
submitted by counsel for the respondents that the letter contained a clear
indication to the appellants that
Mr. Wilson was not prepared to take into
account any matter not found in the Commissioner's report. The appellants were
on notice,
so it was submitted, that whatever assurances had been given them
by Senator Baume, Mr. Wilson would not have regard to any matter
not contained
in the report. Really, so it was contended, he was saying that the report and
the representations and submissions made
to the Commissioner were the only
matters to which he would have regard. That was the clear consequence of his
not being prepared
to afford the appellants the interview which they had
sought.
It is true that the letter does not refer to any representations or
submissions not referred to in the Commissioner's report. But
it makes no
clear statement of the kind which the respondents say should be understood
from it. In my opinion the respondents' submission
requires too much to be
read into the letter. An ordinary reader would not take from it that the
Minister was saying that he would
not take into account submissions made after
the report.
I should add that I think there is a question as to what significance there
would have been for the outcome of the case, if a different
view were taken. I
find it difficult to see how a decision of the Minister to take nothing into
account except what was in the report
could change the essential matters which
arise for decision in the case. To put it another way, I do not understand how
the sending
of Mr. Wilson's letter, if it did indicate what the respondents
say, could have been fatal to the appellants' case.
The ground having been cleared, I can now come more directly to the questions
which the first issue raises for consideration. The
first of these questions
is whether the Minister was entitled - I leave aside for the moment the
question of whether he was bound
- to take into account matters brought to his
attention after a report and thus not forming part of it. I have earlier set
out the
relevant provisions of the Act. The relevant sections are ss. 11 and
50. The critical part of s. 50 is found in para. (1)(b) which
in both
sub-paras. (i) and (ii) uses the words, "Where - . . . the Minister is
satisfied that the land, or part of the land, should
be granted . . ." If he
is so satisfied, he is obliged, by para. (1)(c), to grant the land to one or
more Land Trusts. The words
of para. (1)(b) confer on the Minister a
discretion. But they do not themselves provide him with any guidance, let
alone criteria,
to indicate to him what matters he should or should not take
into account in reaching his decision. For such guidance one must look
elsewhere. The most relevant, if not the only relevant, provision is s. 50
which provides for the functions of the Commissioner.
Sub-sec. 50(3) requires the Commissioner, in making a report in connection
with a traditional land claim, to comment on a number of
matters, including
the detriment to persons or communities which might result if the claim were
acceded to. It was the view of Brennan
J. in the Meneling Station case that
the Minister was bound to take into account matters of detriment commented
upon by the Commissioner
in a report when reaching his decision under s. 11.
The other members of the majority of the High Court did not express a view on
the question of whether the Minister was bound, but were all of opinion that
he was entitled to take the matters of comment in the
report into account.
This case does not require consideration of whether or not the Minister is
entitled to take into account wide ranging submissions
about detriment after a
report has been made by the Commissioner. This case is in a narrower compass.
The essential matter which
the appellants wish the Minister to consider is the
matter of correction, and perhaps elucidation, concerning the whereabouts of
the area known internally in the companies as Ranger 68. Their principal
concern is to ensure that the Minister takes into account,
when deciding
whether or not to grant the claim, the fact that Ranger 68 is inside the area
which has been the subject of the grant
and not outside it. Thus the question
arises as to whether the Minister, being entitled to take into account the
matters of comment
reported on by the Commissioner, is also entitled to take
into account matters of correction and elucidation relating to facts commented
upon by the Commissioner.
In the end one has to have regard to the provisions of the Act and to the
policy and purpose which its language indicates underlies
it. It would seem
unlikely to me that the legislature would not have intended a Minister to be
able to take into account factual
errors in a report. Although the question
does not arise in this case, I would take the same view of changes in
circumstances coming
about between the date of a report and the Minister's
consideration of the matter. Particularly is that so when it may be expected
that there will often be a not inconsiderable interval between the date of the
report and the date of the Minister's consideration.
In the present case it
was almost two years.
It is true that the Minister would place substantial reliance upon the
Commissioner's report because it would not be made without
a great deal of
investigation and consideration. The Minister and his Department could not so
easily bring to bear on any of the
matters in contention the same level of
investigation and consideration as could the Commissioner. But if, after a
report was made,
the Minister were in doubt as to what the then factual
situation was, he could request the Commissioner to advise him in relation
to
it; see para. 50(1)(d).
In my opinion the Minister is therefore plainly entitled to take into account
at least matters of correction and matters which have
come about after a
report which change or may tend to change the circumstances as they were when
considered by the Commissioner.
The next question is whether the Minister was
not only entitled, but also bound, to take the matters of correction here
advanced
by the appellants into account. If the view of Brennan J. in the
Meneling Station case be right, namely that the Minister is bound
to take the
matters of comment in the Commissioner's report into account, it seems to me
that it must follow that he was also bound
to take matters of correction into
account. I am respectfully of opinion that his Honour's view was correct.
There is nothing in
the judgments of the other judges which suggests to me
that they were positively of the view that the Minister was not so bound.
The
question did not arise. And there are indications that they may have been of
the same view. At the end of the passage earlier
quoted from his judgment (p.
7) Gibbs C.J. said that the ultimate weight to be given the matters of comment
was for the Minister
to decide. This does not suggest that the Minister was
entitled to leave them altogether out of account. Similarly, Wilson J. said
(p. 8, supra) that the matters which were listed in sub-sec. 50(3) as the
subject of comment in the report were matters which exposed
for the
consideration of the Minister the implications of a decision by him to make a
grant.
My conclusions so far are that the Minister is not only entitled, but also
bound, to take into account the matters of comment contained
in a report made
by the Commissioner pursuant to s. 50 of the Act, and that he is entitled to
take into account matters of correction
and elucidation of factual statements
made in the course of such comments. He is also entitled to take into account
changes in circumstances
arising since the making of the report. The critical
question is whether he is bound to take into account such matters of
correction
and eludication and changes in circumstances. In the present case
it is a matter of correction which is involved.
The question is one of legislative intent to be discerned from a consideration
of the Act as a whole and the policy which underlies
it. In my opinion, the
Minister being bound to take the matters of comment into account, he is
equally bound to take into account
the correction of factual statements made
in the course of the Commissioner's comments. I would add to the correction of
factual
statements, the eludication of such statements and changes in
circumstances coming about after the report. Such a view gives the
Act a
sensible and practical operation which it would not have if the narrow view
contended for by the respondents were to prevail.
I make it clear that the
factual errors to which I refer need not be due to any mistake or error of the
Commissioner himself. He
may have said what he did because of the state of the
evidence before him. That is this case. There may be other cases where the
Commissioner has in good faith reached a plainly erroneous conclusion on a
factual matter. I am of opinion that in both kinds of
cases the Minister is
bound to take the corrections into account.
I am therefore of the opinion that the Minister was bound to take into account
the matters of correction and elucidation concerning
the position of the site
of Ranger 68 which had been put to his predecessors. Those matters should have
been drawn to his attention
by Mr. Stern in the memorandum of 11 March 1983.
There is a question as to the ground in s. 5 of the Administrative Decisions
(Judicial Review) Act 1977 which may be relied upon in the circumstances of a
case such as this. In my opinion there may be a number of ways in which the
matter
may be put, but I am content to rely upon para. 5(1)(e) and para.
5(2)(b). The former provision provides a ground of review where
the making of
the decision was an improper exercise of the power conferred by the enactment,
that is, the Act here in question. By
the latter provision it is an improper
exercise of power to fail to take a relevant consideration into account. Such
a consideration
was the matter of correction brought to the attention of the
earlier Ministers.
My view in this regard is in accordance with the authorities on the
circumstances in which a Court will interfere on the ground that
a relevant
consideration has not been taken into account. The well known passage in the
judgment of Deane J. in Sean Investments
Pty Limited v. MacKellar (1981) 38
A.L.R. 363 at pp. 374-5 controls the situation. I do not quote the passage in
full but part of
it is as follows (p. 375):-
"In a case such as the present, where relevant considerations are
not specified, it is largely for the decision-maker,
in the light of
matters placed before him by the parties, to determine which matters he
regards as relevant and the comparative
importance to be accorded to
matters which he so regards. The ground of failure to take into
account a relevant
consideration will only be made good if it is shown
that the decision-maker has failed to take into account a consideration
which he was, in the circumstances, bound to take into account for there
to be a valid exercise of the power to decide."
I refer also to Water Conservation and Irrigation Commission (N.S.W.) [1947] HCA 21; (1947)
74 C.L.R. 492 per Dixon J. (as he was) at pp. 504-5 and The Queen v.
Australian Broadcasting Tribunal; Ex parte 2 HD Proprietary
Limited [1979] HCA 62; (1979) 144
C.L.R. 45 at p. 49. Reference should also be made to the dicta of Lord Greene
M.R. in Associated Provincial Picture Houses
v. Wednesbury Corporation [1947] EWCA Civ 1; (1948)
1 K.B. 223 at p. 228 and of Lord Reid in Padfield v. Minister of Agriculture,
Fisheries and Food [1968] UKHL 1; (1968) A.C. 997 at p. 1058. These authorities show that the
question of whether a Minister or other public official is bound to
take into
account a particular factor will be determined, not only by reference to
specific criteria provided for in the legislation,
but also by reference to
underlying considerations of purpose and policy which the legislation is
designed to achieve. In my opinion
it would defeat that purpose and policy if
the Minister were to act upon facts stated in the report which were,
nevertheless, upon
the basis of information within his department, erroneous.
To leave out of account the matters of correction as to the whereabouts
of
Ranger 68 would be to omit from the Minister's deliberations a relevant
consideration. That in my view would be enough to warrant
the conclusion that
the decision is contrary to law. That is the view I have of the decision in
this case.
I am also of opinion that the appellants may found their case upon paras. 5(1)
(h) and 5(3) (b) of the Judicial Review Act. Those
provisions enable review
where a person making a decision has based the decision on the existence of a
particular fact and the fact
did not exist. Here the decision was based on
Ranger 68 being outside the area granted, whereas in truth it was inside that
area.
I refer generally to the Tameside and Daganayasi cases earlier cited. In
the former case Lord Wilberforce said ((1977) A.C. at p.
1047):-
"The section is framed in a 'subjective' form - if the Secretary of
State 'is satisfied.' This form of section is
quite well known,
and at first sight might seem to exclude judicial review. Sections in
this form may, no doubt, exclude
judicial review on what is or has
become a matter of pure judgment. But I do not think that they go
further than that.
If a judgment requires, before it can be made, the
existence of some facts, then, although the evaluation of those facts
is
for the Secretary of State alone, the court must inquire whether those
facts exist, and have been taken into account,
whether the
judgment has been made upon a proper self-direction as to those facts,
whether the judgment has not been made upon
other facts which ought not
to have been taken into account. If these requirements are not
met, then the exercise of
judgment, however bona fide it may be, becomes
capable of challenge . . ."
For all the reasons I have given I would determine the first issue in favour
of the appellants.
(2) In my opinion the submission that there was a constructive
failure to consider detriment at all should
be rejected. In reaching
that conclusion I have taken into account the whole of the evidence
and the conclusions
of Beaumont J. which I have earlier quoted (p.
25). I am respectfully in full agreement with what his Honour there
said.
(3) I would not refuse relief on discretionary grounds. There
is no evidence of any deliberate misleading of the
Commissioner by
the appellant or Mr. Elliston. How he came to make the mistake he
did is not clear but there
is nothing to suggest that it was not
honestly made. It may have been better if the appellants had been
prepared
to take the Commissioner into their confidence about the
position of Ranger 68. Undoubtedly he would have devised procedures
to safeguard the confidentiality of the information. But one can
well understand the anxiety which the appellants
must have had in
relation to the site of this prospect and the consequent fear they
would have of advantage to competitors
if the site and the valuable
nature of the prospect became known. Furthermore, the claim made by
the Northern
Land Council was for a much larger area than that in
respect of which the Commissioner recommended a grant. The precise
location of any of the areas covered by the mineral lease
applications may not have then have had the importance
that events
later proved them to have. I refer again to paras. 320 and 321(c) and (j) of
the Commissioner's report earlier
quoted (pp. 10-12).
Counsel for the respondents relied not only upon the
mistake made by Mr. Elliston in his evidence before the
Commissioner,
but also upon an alleged lack of frankness in the
submissions made by the appellants to Senator Baume after the
report
had been made. The September 1981 submissions did not identify the
whereabouts of Ranger 68 except to make it clear
that it was within,
and not outside, the area which had been recommended for a grant.
The descriptions of the various areas
in question later supplied to
the Minister did not refer to it as Ranger 68, but nevertheless
referred to other
areas of land by the designation "Ranger". There was
express reference to Ranger 4, 34, 35, 57, 64, 65, 66 and 67. Each
of these areas was precisely identified by metes and bounds. On the
other hand Ranger 68 was included in an area
described generally as
the Barote area. This area was also defined by reference to metes
and bounds, but without reference to the
designation "Ranger 68".
As I understand the suggestion put in argument there was something
sinister, or at least a lack of frankness in
not identifying
precisely the metes and bounds of Ranger 68 by reference to its
designation as such.
I have given the submission consideration, but I do not
find in the evidence any basis for it nor for another
suggestion
which I think was made, namely, that the circumstances of the case
suggest that the appellants were
in some way playing a double game.
The September 1981 submission made express reference to Ranger 68.
It was there said:
"Among the mineral lease applications on land recommended for grant
is the uranium prospect known as Ranger 68 which
is by far Peko
and EZ's most significant prospect within the whole of the land
claim area."
The submission went on to refer to the error which had
been made in designating its position.
If, on receipt of the detailed particulars of the whereabouts of
each of the areas, the Minister had wished the
site of Ranger 68 to
be precisely stated, it would have been easy enough for him to ask
for that to be done.
He was well aware of the importance that the
appellants attached to the area which he knew they referred to as Ranger 68.
It follows,
in my opinion, that the submissions and letters from the
appellants do not suggest lack of frankness, let alone
conduct of a
more sinister kind.
I respectfully agree with Beaumont J. (see p. 26 supra)
that if the failure to identify the precise location of
Ranger 68
relative to the several land claims arose as a result of a
deliberate decision of the appellants, such
circumstance would
constitute at least a relevant consideration in the exercise of the
Court's discretion. But, for
reasons given, I do not find in the evidence of
the conduct which there is, any basis for a finding along these
lines.
No such finding was made by Beaumont J. himself.
Before leaving the matter of discretion, I wish to say
that this Court, since the coming into force of the Judicial
Review
Act, has had occasion to review administrative action in many
fields. There are a number of judgments
in which it is made clear
that in reviewing administrative conduct, it will be the substance
of the matter which is looked
at. Decisions of Ministers and other
officials, and the reasons given for them, will not be ransacked for
the
purpose of seeing whether all i's have been dotted and all t's
crossed. The approach is a broad, commonsense one. if
it were not,
the increased availability of judicial review which the Act has
brought about could lead to an
undesirable interference with the
proper functioning of the executive arm of government.
In my opinion, the same approach should be adopted when
the conduct of a party seeking review is impugned for
the purpose of
establishing that there are discretionary reasons why the Court's
jurisdiction should not be exercised.
What a party has done or said
ought not to be looked at narrowly, nor with too critical an eye.
Whether the problem arises
in the field of commerce, as is the case
here, or in some other field, for example, migration or social
services,
a broad and realistic approach is required. A party faced
with government action may not always act as others
may expect him
to. He may take different stands at different times. He may quite
properly take advantage of particular
circumstances as they appear
to him at the time. If he acts in this way, he should not,
ordinarily speaking,
lose the right to have an unlawful decision set aside.
On the other hand, if he deliberately misleads an official, or
mistakenly
does so, and then becomes aware of his mistake and its
significance and does not correct it, different considerations
will
arise. In such a case it may well be said that he is the cause of the
unsatisfactory, and unlawful, decision of which he
complains. In my
opinion this case is not in that category.
(4) In the view I take of the matter the appeal will succeed and his Honour's orders will be set aside. Nevertheless I do not think that it was right to include the qualification made by his Honour to his orders which is the subject of the cross-appeal. I have been in two minds as to whether the appropriate order is nevertheless dismissal of the cross-appeal because his Honour's orders will be set aside. But on reflection I would uphold the cross-appeal. I would make no order as to the costs of it.
In summary then, I would allow the appeal, set aside the orders made by his Honour, set aside the Minister's decision of 15 March 1983 and refer the matter to the Minister to be reconsidered by him according to law. I would allow the cross-appeal. I would order the respondent Minister to pay the appellants' costs of the appeal and of the proceedings before Beaumont J. I would make no order as to the costs of the other respondent either before Beaumont J. or on the appeal. I would make no order as to the costs of the cross-appeal.
I agree in substance with the views expressed by Bowen CJ and Sheppard J in relation to the extent of the Minister's obligation in considering, under s.11 of the Aboriginal Land Rights (Northern Territory) Act 1976, whether to recommend to the Governor-General the grant in fee simple of land to a Land Trust. In Re Toohey; ex parte Meneling Station Pty. Limited (1982) 57 ALJR 59 at p 72 Brennan J held that the Minister is not merely entitled but is bound to take into account any comments in the Commission's report relating to detriment. That must be because, under the statutory scheme, detriment is a material matter for consideration in the exercise of the statutory discretion committed to the Minister. The usual rule is that material matters must be considered upon the basis of the information available to the decision maker at the date of his decision. There being no express provision to the contrary in the present case, any limitation excluding from the ambit of his consideration information on detriment placed before him otherwise than through the Commissioner's report may be justified only upon the basis that such a limitation is necessary to the effective operation of the legislative scheme embodied in the Act. The matters mentioned by Beaumont J provide support for the view that there is such a limitation but I have reached the conclusion that those matters should not be regarded as determinative. As Bowen CJ has pointed out, a considerable period may elapse between the delivery of the Commissioner's report and the Minister's decision. It is not difficult to think of examples of matters arising in that time which it would be absurd for a Minister to be required to ignore: strategic developments or technological changes giving rise to a need for an important new defence facility affecting land the subject of a claim; changes in the public importance of the exploitation of a particular mineral deposit because of new technology or of a major variation in the cost or in the availability of alternative sources of energy; the modification or discontinuance of relevant activities by a person reported as potentially suffering detriment, so that the reported detriment will in any event be reduced or eliminated.
As the examples indicate, the new facts may cut either way, tending to support or to reduce the case for a land grant. Consequently, it cannot be said that to ignore new events is necessarily conducive to the attainment of the objects of the Act; it may serve to frustrate that attainment. It is true, as Beaumont J pointed out, that regard for new events may create administrative problems but there are available methods of resolving any factual issue. As was pointed out in Meneling Station: see Wilson J at p 67 and Brennan J at p 72, the ultimate decision is a political decision required to be made by a Minister responsible to the Parliament. It is, I think, inherently unlikely that Parliament would require a practising politician to make a political decision which ignored current facts and policies bearing upon any matters the subject of comment under s. 50(3) of the Act.
For those reasons I accept the submission of the appellants that it is the duty of the Minister, in considering his recommendation under s.11, to have regard to material before him which updates the findings of the Commission, or which provides new information, upon the matter of detriment. It does not follow that the Minister is bound to accept the correctness of the new assertions made to him; to do so in any case where there was room for dispute would be potentially unfair to other parties and may lead to an erroneous decision. But if the new material, having regard to its source and its content, is prima facie credible and relevant to the existence or extent of detriment there is an obligation upon the Minister at least to consider whether to seek confirmation of the accuracy of that material for the purpose of taking it into account as relevant factual matter. The Minister may take the view that confirmation would serve no useful purpose, that even if the assertions were confirmed the decision would be the same; but I think that the Minister must at least ask himself or herself the question.
The third category of new material mentioned in argument on behalf of the appellants, the correction of errors or the explication or ambiguities in the Commissioner's report, presents greater difficulties of principle. There remains the duty of the Minister to consider matters listed under s.50(3) as at the date of his or her decision; so that if an "error" has been "corrected" in a letter from a party received between the date of the report and the date of decision then the contents of that letter are a material matter for consideration. Once again, of course, the Minister is not bound to accept the accuracy of the "correction". Unless the Commissioner's mistake is manifest, the Minister has nothing more than an assertion of error by an interested party. The Minister's duty could not rise above an obligation to consider the necessity of investigating whether or not there was an error. Having considered that question, the Minister might decide that it is not necessary to resolve the matter because - even accepting the correction - the decision would be the same.
There were occasions during the argument when the appellants' counsel seemed to suggest that, if Mr Holding had a duty to consider matters of detriment arising otherwise than out of the Commissioner's report, he was bound to take into account as facts the assertions made to his predecessor, Senator Baume, in various communications from the appellants. Although it does not appear that Mr Holding ever saw the correspondence with Senator Baume, I agree that the Court should treat that correspondence as being before Mr Holding when he made his decision. The various letters were written to Senator Baume in his capacity as Minister for Aboriginal Affairs. They related to a statutory responsibility of that Minister and to a decision which Senator Baume, or a successor in that office, would one day have to make in that capacity. Under those circumstances, and in the absence of evidence to the contrary, it should be inferred that the correspondence was not treated by Senator Baume as personal communications but was received on to the relevant departmental file so as to be available to any subsequent Minister. Upon that basis Mr. Holding, who had access to the departmental file, must be regarded as having constructive knowledge of the correspondence, so that the lack of actual knowledge becomes immaterial.
However, that conclusion merely means that the case is to be judged on the same basis as if it were shown that Mr Holding had actual knowledge of the letters but had resolved to put them out of his mind when considering his decision. He would not have been obliged to accept at face value the accuracy of the factual assertions in the letter; indeed to do so, without providing to them an opportunity to be heard, would have been unfair to other parties and especially the claimants for land grants. At its highest the appellants' case may amount merely to a claim that, if the assertions had prima face credibility, Mr Holding was bound before reaching a decision to ask himself the question whether he should carry out an investigation of their accuracy in point of fact.
Not without hesitation, I have come to the conclusion that Mr Holding was under an obligation, in exercising his statutory discretion, to consider whether he should investigate the claims made by the appellants. The claims were relevant to a matter falling for his consideration: the degree of detriment that would be suffered by the appellants if the land was granted to the Aboriginal claimants. As I have pointed out, Mr Holding was not only not bound to accept the appellant's assertions on that matter; he would not have been entitled to do so without proper notice to the other interested parties. He was not even bound to enquire into the accuracy of the appellant's assertions; he would have been entitled to take the view that, even if the accuracy of the assertions was established, his decision would be unaffected, that other considerations should result in the land grant proceeding. He would, in my opinion, have been entitled to take into account the circumstances under which, and manner in which, the assertions were made; taking the view that there was an important distinction, in terms of the proper administration of the Act, between the investigation by the Minister of an alleged error of a Commissioner in understanding or accurately reporting frank, clear and accurate evidence placed before him by the person now asserting error and an alleged error occasioned by the asserter himself. But, although all of those matters might have been taken into account in considering the matter, the duty remained for the Minister to ask himself whether he should investigate the appellants' assertions. Mr Holding, being in fact unaware of the assertions, did not ask himself that question with the result that his decision was technically invalid.
Ordinarily, that would be enough to dispose of the matter. As a general rule an invalid decision taken in the exercise of a statutory discretion should be set aside by the Court and the matter remitted for further consideration in accordance with the law. It may be that the ultimate decision will be to the same effect as the decision set aside by the Court but that is not for the Court to predict; and, even if the result is the same, such a course will vindicate the public interest in requiring statutory decision makers to act only within the strict confines of the law.
However, s.16 of the Administrative Decisions (Judicial Review) Act 1977 makes the grant of relief under the Act dependent upon the exercise of the Court's discretion in favour of the applicant for relief. In so doing, the Act recognises that there may exist circumstances outweighing that general public interest and under which even a legally invalid statutory decision ought not to be set aside. Without in any way attempting to define those circumstances, or to circumscribe the exercise of the Court's discretion, it seems to me that one such occasion will be where it can be seen that to grant relief will tend to militate against the proper operation of the relevant Act in future cases. This is, in my opinion, the present situation. It appears that the problem which confronted the Minister, and which now confronts the Court, arose out of a tactical decision by the appellants not to reveal to the Commissioner the precise whereabouts of Ranger 68: information relevant to his task and which the appellants now complain should have been taken into account by the Minister in considering the Commissioner's report and the decision proper to be made under s.11. To uphold their claim would be to encourage parties in other cases to subvert the statutory procedure in the same way, to by-pass the Commissioner and to rely upon statements of fact made directly to the Minister. Such a course must necessarily deprive the Minister of the assistance envisaged by the Act: the Commissioner's comments and the testing of the accuracy of allegations of fact by other parties and by the Commissioner himself.
It is important to my view of the present case that there were no relevant
new events between the date of the hearing before the
Commissioner and the
date of the Minister's decision. According to the written statement of
evidence tendered to Toohey J of Mr J
N W Elliston, a qualified geologist
holding the offices of Director and of Group Executive - Technology of Peko
Wallsend and the
appellants' principal witness before the Inquiry, such
drilling as had occurred in the Ranger 68 area - summarized by him as "8 holes
in an incomplete pattern which were not all drilled to depth" - all took place
in 1976 and 1977. It has never been suggested that
any further drilling
occurred after Mr Elliston's evidence was given. It follows that, when his
Honour heard the evidence for the
appellants in February 1981, they had
available to them the whole of the material which could have been taken into
account by the
Minister, or by anyone else, in deciding what detriment would
be suffered by the appellants as a result of a decision in March 1983
to
proceed with a land grant. They knew exactly what land they described as
Ranger 68; they knew where the exploration holes had
been drilled and with
what results. According to their subsequent assertions, Ranger 68 is
predominantly within the area claimed
by the Mirarr Kundjey'mi. According to a
map revealed to the Minister and the Aboriginal claimants for the first time
only at the
hearing before Beaumont J, the deposit lies at the extreme north
east of the general area described by the appellants as the Barote
lease area.
The Barote lease area was described by Mr Elliston in his oral evidence to the
Commissioner - looking at the map tendered
to Beaumont J, correctly to my eye
- as being 90% within the Dadjbaku claim area with the balance in Mirarr
Kundjey'mi land. Immediately
thereafter, and referring to the Barote lease
area, Mr Elliston went on to say:
"There were two mineralised prospects in that - Ranger 4 and Ranger 68 are the significant ones. Ranger 5 also appears within it. Ranger 4 is to the southern extremity of it and Ranger 68 is in the centre of it".
That evidence in relation to Ranger 68 is inconsistent both with the claims subsequently made to Senator Baume and with the map tendered before Beaumont J. The map puts the centre of the Barote lease area, about which Ranger 68 was said to lie, well into Dadjbaku land.
The parties have proceeded before us upon the assumption that the map is accurate. Upon that assumption the evidence placed by the appellants before Toohey J was grossly misleading. At no stage has any explanation been offered either for Mr Elliston's initial error or for the failure of the appellants to correct the error with the Commissioner. The appellants were represented by senior and junior counsel and by solicitors, to whom a transcript of Mr Elliston's evidence was available.
It is possible that the appellants deliberately misled Toohey J into thinking that the majority of Ranger 68 was in the Dadjbaku claim area - perhaps because they erroneously thought that this claim would prove to be stronger than that of the Mirarr Kundjey'mi, perhaps to mislead their competitor, Pan Continental - but I think that this is unlikely. The case presented, from first to last, both to the Commissioner and to Senator Baume, was for the excision from any land granted to Aboriginal claimants of the whole of the lands in which they were interested. To speak generally of $6 million expenditure incurred and of uranium in Ranger 68 worth $280 million at current prices, as they did, might be thought supportive of such a case. To specify with any exactitude the precise location of the mineralised areas might encourage consideration whether particular areas, out of the whole, might reasonably be granted to the claimants. In his letter to Senator Baume of 25 September Mr G H Mackay, the Managing Director of EZ, said that "for various reasons" the appellants "did not specify in our evidence precisely where Ranger 68 is". I think that this accurately states the tactical course they adopted. I think that they did not intend to inform the Commissioner of the whereabouts of the deposit, that the error unwittingly occurred in the course of deliberate - and, for a scientist, probably untypical - vagueness by Mr Elliston and that, if the error was noticed, it was thought better left uncorrected since any correction would inevitably involve a precise disclosure of the true position. Although I am prepared to accept that there was no intention actively to deceive Toohey J, there was an intention to provide him with something less than full and frank information upon a subject in relation to which he was required by the Act to report the facts to the Minister. For tactical reasons the appellants chose to ignore the obligations placed upon them by the statutory procedure. They pinned their hopes upon the success of an "excise all areas" approach. That having failed, the Minister having rejected the proposition that all lands over which there were mining interests should be withheld from grant, the appellants now seek the assistance of the Court in compelling the consideration of a different case; one calling for the identification and exclusion of that particular part of their holdings which they call Ranger 68. And, ironically, it is the incorrect information supplied to Toohey J which furnishes the basis of their claim. But for that incorrect information there would be no "error" to be "corrected". The comments made by Toohey J in his report only reflected the substance of Mr Elliston's evidence. The position is that the Court is asked to intervene to set aside the Minister's decision and to compel him to consider whether he will investigate the accuracy of the claim now made that Toohey J erred in accepting evidence given on behalf of the appellants whose inaccuracy was a direct function of the policy of vagueness adopted by the appellants.
If it were not previously apparent, the consequences of the appellants'
tactics of vagueness and of Mr Elliston's error must have
become apparent upon
the release of the Commissioner's report. The appellants had read the report
by 2 September 1981. On that day
Mr Holcroft, Chief Executive of Peko
Wallsend, wrote to Senator Baume enclosing an 18 page submission, which
contained this passage:
"Among the mineral lease applications on land recommended for grant is the uranium prospect known as Ranger 68 which is by far Peko and EZ's most significant prospect within the whole of the land claim area. However, because Peko and EZ did not reveal the exact location of this prospect at the hearing, the Commissioner was only aware that it was within the Barote block of leases, 90% of which are on land unsuccessfully claimed by the Dadjbaku. The Commissioner was not specifically aware that Ranger 68 turned out to be just within the western boundary of land recommended for grant to the Mirarr Kundjey'mi and the qualification in paragraph 320 must be read accordingly."
Mr Holcroft did not tell the Minister that the Commissioner's non-awareness
of the relationship between Ranger 68 and the boundary
of the Mirarr
Kundjey'mi land was a result of inaccurate evidence of Mr Elliston. The
Minister was not asked to address himself to
the desirability of identifying
and excluding from the recommended Mirarr Kundjey'mi grant the land within
Ranger 68. Rather, in
the words of Mr Holcroft's letter:
"In short, what Peko and EZ are saying in the submission is that you should not be satisfied that all land recommended for grant by the Commissioner be granted to a Land Trust; further, you should excise from any such land the land the subject of Peko and EZ's mineral lease applications and any land necessary to get access thereto".
Senator Baume replied on 6 October 1981, acknowledging Mr Holcroft's letter
and promising to take the submission into account. In
the meantime, on 25
September 1981, Mr Mackay of EZ wrote to Senator Baume referring to a meeting
which he and Mr Holcroft had had
with two other Ministers, Mr J D Anthony and
Senator Carrick, the previous evening at which they had "discussed the case
for excision
of our Barote mineral lease applications from any grant of land
to be made to aboriginals". The letter went on to refer to two maps
handed
over at that discussion. One of these maps was described as "a detailed one of
the Barote area showing our drill holes, and
clearly indicating that the
mineralised Ranger 68 drill holes are all within the area recommended for
grant to aboriginals by Toohey
J". The letter referred to the view expressed
by Toohey J that the possible detriment to the companies was lessened by the
fact that
only the eastern prospects of the companies fell within the land
recommended by him for a grant and went on:
"Thus we believe that the E-Z/Peko detriment is far greater than was found in the Report by Toohey J, as, for various reasons, we did not specify in our evidence precisely where Ranger 68 is. Unless this area is excised from any grant, all our known mineralised areas within Barote will become Aboriginal land and then be subject to the veto power."
Neither the letter nor - apparently - the maps identified the limits of
Ranger 68 so as to permit the Minister, if he had been so
inclined, to exclude
that particular area from any grant. This was not the request that the
companies were making. As before, they
were seeking the excision of the whole
of their Barote leases from any grant. That position was confirmed in a letter
of 28 September
1981 from Mr Holcroft to Mr Anthony - a copy of which Mr
Holcroft sent to Senator Baume - in which he referred to the meeting of
24
September 1981 and said:
"During the course of the meeting you will recall asking us what precedents or authority we could provide which would entitle the Minister for Aboriginal Affairs to do as we are now requesting, namely, to excise from any land to be granted to a Land Trust for the Mirarr Kundjey'mi that relatively small area of land, being part of the Barote lease block, which is the subject of our mineral lease applications".
On 25 November 1981 Senator Baume forwarded to Mr Holcroft a telex in which he referred to an announcement made by him on 22 July - presumably when he released the Commissioner's report - that a period of two months would be given to any party wishing to lodge a legal challenge in respect of the findings of the Commissioner. Senator Baume pointed out that it was then four months since that announcement had been made and he expressed the view that ample time had elapsed for the preparation of a legal challenge. He said that if the company did propose to lodge a legal challenge it should do so within fourteen days, failing which he would proceed on the basis that there is to be no legal challenge. On 4 December 1981 Mr Holcroft wrote to Senator Baume pointing out that the company had recently commenced proceedings in the High Court of Australia in respect of the report of the Commissioner in relation to the Finniss River land claim: the Meneling Station case. However, the letter went on to say that the companies "have no objection to your making a decision with respect to that land claim provided that you make the excision Peko and E-Z have sought from the land recommended for grant".
On 18 January 1982 Senator Baume responded to Mr Holcroft indicating that in view of the application lodged with the High Court in connection with the Finniss River claim he was prepared to defer his decision in relation to those parts of the Alligator River Stage II claim area recommended for grant and over which Peko and E-Z had made application for mining interests. He sought "a listing and descriptions of the areas involved".
On 10 February 1982 Mr Holcroft wrote to Senator Baume enclosing a list of the interests of Peko and E-Z in relation to land recommended by the Commissioner for grant to Aboriginal land trusts. The list identified various areas by reference to the mining lease application number, the totality of the land within each specified area being the subject of a metes and bounds description. The areas known as Ranger 4, Ranger 34, Ranger 35, Ranger 57, Ranger 64, Ranger 65, Ranger 66 and Ranger 67 were identified as such with a statement of the relevant mining lease application numbers and metes and bounds descriptions. There was no similar identification of Ranger 68. Rather the area which, as the evidence now appears, includes Ranger 68 was treated simply as part of a large area described as "Barote area", in relation to which there was supplied a list of mining lease application numbers and an overall metes and bounds description.
It is, I think, relevant to note that, notwithstanding their awareness of the misunderstanding of Toohey J resulting from the evidence as to location given to him, the appellants did not at any stage take Senator Baume - or either of his successors - into their confidence as to the precise location of Ranger 68. They supplied no map to locate that deposit. At a time when they supplied metes and bounds descriptions of each of the other Ranger deposits they simply included Ranger 68 in a large parcel of land straddling the boundary of the land recommended for grant and described as "Barote area". No submission was ever put to any Minister that if the companies' "excise all areas" approach were rejected the Minister ought to exclude any specifically identified area because of its special importance. The nearest the appellants came to such a submission was in Mr Mackay's letter of 25 September but even this letter was extremely vague. It did not claim that the whole of Ranger 68 was in Mirarr Kundjey'mi land, still less provide details to support such a claim. It merely stated that all the existing drill holes - the Minister had previously been told that there were only eight - were in Mirarr Kundjey'mi land. That statement was not inconsistent with the understanding of Toohey J that Ranger 68 was partly, although only to a minor degree, in Mirarr Kundjey'mi land.
The companies may have been confident of the ultimate success of the case they put first to Toohey J and then to Senator Baume: the total exclusion of all leased areas. That case having been rejected, they now attack the failure of Mr Holding to consider a case on detriment which they never explicitly put to anyone and which arises out of an error forced upon Toohey J by their tactics of vagueness and their erroneous evidence. In my view the Court should not permit them to do so.
The second matter relied upon by the appellants may be disposed of more briefly. The departmental memo recommending the decision which the Minister made referred shortly to the comment upon detriment to the appellants made by the Commissioner in his report. There was undisputed evidence before Beaumont J that the Minister had in his possession copies of that report and that he had been seen reading it. There was nothing before the trial judge to establish that, at the date of his decision, the Minister was in fact unaware of the totality of the comments of the Commissioner upon the matter of detriment. There is therefore no basis for any submission of actual failure to have regard to those comments, and indeed no such submission was put.
The appellants contend, however, that there was a constructive failure to pay regard to the Commissioner's comments on the matter of detriment. They refer to the Minister's letters of 26 April 1983 in which he informed Mr Copeman and Mr Mackay of his decision without making express reference to the detriment which their two organisations would suffer as a result of that decision, his reasons for decision notified pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act on 24 May 1983 and certain material obtained by the appellants under the Freedom of Information Act 1982 and tendered in evidence in this case.
The letters of 26 April do nothing to advance a case of constructive failure to pay regard to the matter of detriment. Those letters are merely communications of the fact of the decision. In their content they are neutral on the question whether the Minister had considered the detriment to the companies of a decision to recommend a grant; it was not incumbent on the Minister to spell out his reasoning in conveying his decision. The fact that they were sent at all tends to support the inference that the Minister was aware that the two companies' interests would be affected by his decision; an inference consistent with his having considered the issue of detriment.
The s. 13 reasons have been quoted by Sheppard J. They include the reason that "the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended". The reasons, therefore, assert that the Minister was aware of an issue of detriment. Reference was made in argument to the qualification "if any" but this must be read in the light of Toohey J's use of the words "potential detriment". As the Commissioner pointed out, in para 316 of his report, there was - even in the absence of a land grant - "no guarantee that the companies would be given permission to mine in those areas found to be viable" and, of course, the viability of mining any area, even Ranger 68, had yet to be established.
Finally, the material obtained under the Freedom of Information Act shows that in respect of some other claims, in relation to other types of detriment, fuller information was given by the Department to the Minister and that, in some cases, the Minister required further investigation of particular matters or the obtaining of undertakings before proceeding with a decision to recommend a grant. The circumstances of those cases are so dissimilar to those of the subject case that they provide no support for the appellants' submission.
In my opinion the appeal should be dismissed.
Beaumont J dismissed the Application but he added an order - order 2 - in relation to which both respondents have cross-appealed: that the dismissal of the Application be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to s. 50(1)(d) or s. 51 of the Land Rights Act. His Honour did not hold that the applicants did have any such right but merely intended to make clear that it was open to the applicants to seek from the Minister a decision referring to the Commissioner for advice the question raised by the appellants' submission to Senator Baume. It is clear that the decision to refer a matter under s. 50(1)(d) is for the Minister alone and that no other party is entitled to compel that step to be taken. The cross-appellants have submitted that the supplementary order adds nothing to the rights of the appellants to make such representations for a reference as they may wish and that it is inappropriate, and potentially misleading, to make a specific order in relation to the matter. The cross-respondents, the mining companies, concede that the order adds nothing to their rights. I am of the opinion that it is unnecessary, and therefore undesirable, to retain this order. The cross-appeal should be allowed and order 2 set aside. The appellants should pay the costs of both the appeal and the cross-appeal.
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