CATCHWORDS

ADMINISTRATIVE LAW - judicial review - natural justice - application to set aside Minister's decision - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - declaration made under s10 - procedural fairness - whether excluded by statute - nature of interest to be protected - nature of process under Heritage Protection Act - legitimate expectations - whether urgency justifies departure from natural justice - delay of decision-maker's own making - opportunity to respond to further information - whether information new - whether prejudice necessary - credibility of representations - whether Minister considered representations

ABORIGINES - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - sacred sites - Minister's decision to prohibit construction activities - proposed crocodile farm - whether Minister considered representations - confidential information

EVIDENCE - Administrative Decisions (Judicial Review) Act 1977 - s13 reasons - weight to be given - absence of other evidence - inference to be drawn - application of rule in Jones v Dunkel to judicial review proceedings - failure of Minister to call evidence

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 s9, 10(1), 10(1)(a), 10(1)(c), 10(1)(d), 10(3)(b), 10(4), 10(4)(a), 13, 13(3),

Aboriginal Heritage Act 1972 (WA)

Administrative Decisions (Judicial Review) Act 1977 s13

Tickner v Chapman (1995) 57 FCR 451 Cons

Tickner v Bropho (1993) 40 FCR 183 Cons

Norvill v Chapman (1995) 133 ALR 226 Cons

Kioa v West (1985) 159 CLR 550 Cons

Annetts v McCann (1990) 170 CLR 596 Refd

Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 Refd

Mobil Oil Australia Proprietary Limited v Commissioner of Taxation (1963) 113 CLR 475 Refd

Chapman v Tickner (1995) 55 FCR 316 Not Foll

South Australia v O'Shea (1987) 163 CLR 378 Cons

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Refd

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Refd

FAI Insurances Limited v Winneke (1982) 151 CLR 342 Refd

Stead v State Government Insurance Commission (1986) 161 CLR 141 Cons

Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 Refd

Hot Holdings Pty Ltd v Creasy (1996) 70 ALJR 286 Refd

Kentucky Fried Chicken Proprietary Limited v Gantidis (1978) 140 CLR 675 Refd

Jones v Dunkel (1959) 101 CLR 298 Cons

Lebanese Moslem Association v the Minister for Immigration and Ethnic Affairs (1986) 67 ALR 195 Refd

ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 Refd

Citibank Limited v Federal Commissioner of Taxation 88 ATC 4,714 Refd

Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported decision of Hill J 12 December 1989)Refd

Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1994) 34 ALD 169 Refd

MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA v MALCOLM McDONALD DOUGLAS and VALERIE ANNE DOUGLAS and FRANCIS DJAIGWEEN, FRANK SEBASTIAN, MATHEW GILBERT and JOE BERNARD

No WAG 19 of 1995

and

MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA  v THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA and FRANCIS DJAIGWEEN, FRANCIS SEBASTIAN, MATHEW GILBERT AND JOE BERNARD

No WAG 18 of 1995

Black CJ, Burchett, Kiefel JJ

Melbourne (Heard in Perth)

28 May 1996

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION                                                                                 No. WAG 18 of 1995

On appeal from a Judge of the Federal Court of Australia

                                       BETWEEN:                   MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

                                                                                                                                         Appellant

                                       AND:                             THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

                                                                                                                            First Respondents

                                       AND:                             FRANCIS DJAIGWEEN, FRANCIS SEBASTIAN, MATHEW GILBERT AND JOE BERNARD

                                                                                                                       Second Respondents

AND

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION                                                                                 No. WAG 19 of 1995

On appeal from a Judge of the Federal Court of Australia

                                       BETWEEN:                   MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

                                                                                                                                         Appellant

                                       AND:                             MALCOLM McDONALD DOUGLAS and VALERIE ANNE DOUGLAS

                                                                                                                            First Respondents

                                       AND:                             FRANCIS DJAIGWEEN, FRANK SEBASTIAN, MATHEW GILBERT AND JOE BERNARD

                                                                                                                       Second Respondents

CORAM:                                         Black CJ, Burchett, Kiefel JJ

PLACE:                                            Melbourne (Heard in Perth)

DATE:                                              28 May 1996

                                                       MINUTES OF ORDERS

In each of WAG 18 of 1995 and WAG 19 of 1995 the Court orders that:

1.                That the appeal be dismissed with costs, subject as follows:

2.                That the Order of Carr J setting aside the appellant's decision made on 6 April 1994, be varied so as to take effect six weeks from the date of this judgment.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION                                                                                 No. WAG 18 of 1995

On appeal from a Judge of the Federal Court of Australia

                                       BETWEEN:                   MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

                                                                                                                                         Appellant

                                       AND:                             THE STATE OF WESTERN AUSTRALIA, MINISTER FOR LANDS OF THE STATE OF WESTERN AUSTRALIA MINISTER FOR ABORIGINAL AFFAIRS OF THE STATE OF WESTERN AUSTRALIA

                                                                                                                            First Respondents

                                       AND:                             FRANCIS DJAIGWEEN, FRANCIS SEBASTIAN, MATHEW GILBERT AND JOE BERNARD

                                                                                                                       Second Respondents

AND

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION                                                                                 No. WAG 19 of 1995

On appeal from a Judge of the Federal Court of Australia

                                       BETWEEN:                   MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

                                                                                                                                         Appellant

                                       AND:                             MALCOLM McDONALD DOUGLAS and VALERIE ANNE DOUGLAS

                                                                                                                            First Respondents

                                       AND:                             FRANCIS DJAIGWEEN, FRANK SEBASTIAN, MATHEW GILBERT AND JOE BERNARD

                                                                                                                       Second Respondents

CORAM:                                         Black CJ, Burchett, Kiefel JJ

PLACE:                                            Melbourne (Heard in Perth)

DATE:                                              28 May 1996

                                                  REASONS FOR JUDGMENT

THE COURT:

                   The Minister for Aboriginal and Torres Strait Islander Affairs (the "Commonwealth Minister") appeals from the decisions of Carr J in each of proceedings brought, first, by the State of Western Australia and that State's Ministers for Lands and for Aboriginal Affairs and, secondly, by Mr and Mrs Douglas.  His Honour ordered that the decision of the Commonwealth Minister made on 6 April 1994 to make a declaration under s10(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the "Commonwealth Heritage Act") be set aside and that the matter to which the decision related be referred to the Minister for further consideration.  The declaration related to land near Broome, Western Australia, described as Broome Lot 2826, in respect of which a lease had been granted by the State Minister for Lands to Mr and Mrs Douglas for the purpose of a crocodile farm.  The declaration prohibited any earthworks or removal of vegetation on the land for a period of five years from 16 March 1995 and prevented the use proposed by Mr and Mrs Douglas, which was to effect an extension to the crocodile
farm already conducted by them at Cable Beach.  It followed two earlier emergency declarations to the same effect for periods each of thirty days.

                   The matter has a long history, which Carr J recounted in detail.  What follows is a summary of the material before his Honour.  In July 1987, Mr and Mrs Douglas wrote to the Department of Land Administration of the State of Western Australia requesting that the land be made available to them for the purpose mentioned.  Their request was referred by that department to various governmental authorities.  Between March and May 1991 a female aboriginal heritage officer of the Western Australian Department of Aboriginal Sites consulted members of the Yawuru people about the proposal.  In these discussions a Mr Paddy Roe, who was not of these people but a senior aboriginal person in the Broome locality, was apparently permitted by the Yawuru people to speak on their behalf.  He was connected with the Goolarabooloo Aboriginal Corporation which later made its own representations concerning the significance of the land.  Prior to the officer's visit to the area, she had received a letter from Mr Douglas dated 18 March 1991 in which he advised that Mr Roe had stated "very precisely and definitely that there were no sites of any significance on the land we hope to lease for our crocodile farm".  The officer, after holding her own consultations, reported Mr Roe's advice that a creek and mangrove area formed part of a dreaming story to do with snakes' teeth, and was not to be touched, but that the area in question was "okay" - although the Yawuru people would need to be consulted about it, "and if they said that something was here then they would have to do their own thing".  Early discussions with those people revealed that high ground in the area had been used as a camping site in the past;  and, it
seems on this basis, the officer advised Mr Douglas that he would need to obtain approval under the Aboriginal Heritage Act 1972 (WA) ("the State Heritage Act").  Mr Douglas subsequently applied, on 31 December 1991, for approval to excavate or alter an aboriginal site.  In the meantime, the officer continued meeting with the Yawuru people, particularly some of the men of the group to whom she was directed.  The past use of the area for camping was confirmed by Mr Sebastian who said the area was therefore of significance, but not a "site".  The officer had heard mention of the area being a "Law area" and pressed the men for their views.  They denied it had been used "for Law".  When she took the matter up with Mr Mathew Gilbert, she reported, "he was very careful, preferring to wait and see what the others had to say.  I explained about the situation and again showed him the map.  Mathew stated that it is/was a camping area for people, however it is not as important as a mythological site, and it has nothing to do with Mens' business".  The officer consequently advised concerning the social and historical importance of the area in the context of its use as a "free" area for camping.  The report of the officer and the contents of Mr Douglas's letter of 18 March 1991 were later to become controversial.

                   Another report was then prepared, with respect to the whole of the Dampier Peninsula surrounding Broome, which identified a track used in the course of initiation rituals.  The Aboriginal Cultural Materials Committee ("the ACMC"), acting under delegation from the Trustees of the Western Australian Museum, considered the matter, and recommended to the Minister that consent be given to the proposed use of the land, provided that Mr F Djaigween, Chairman of the Yawuru Aboriginal Corporation, was in
agreement.  On about 17 March 1992 the then State Minister gave consent on that condition.  Mr B Charlie had by this time become Chairman of the Corporation.  Two memoranda of agreement were signed by Mr Douglas and Mr Charlie.  On 15 July 1992 the State Minister gave unconditional consent.  Mr Djaigween later however resumed the office of Chairman of the Corporation and wrote to the State Minister on 24 September 1992 expressing concern that the land was on hunting, fishing and recreational land of historical significance and asking him to "stop" his decision.  At some point it appears to have been considered appropriate to reconsider the question of the consent.  Mr Djaigween also wrote to the Commonwealth Minister on 7 October 1992 in terms which the parties before his Honour accepted amounted to an application for an emergency declaration under s9 of the Commonwealth Heritage Act.  No step was however taken by that Minister for some months:  cf Tickner v Chapman (1995) 57 FCR 451, 473 (Norvill v Chapman (1995) 133 ALR 226, 249).

                   In December 1992 the Kimberley Land Council submitted on behalf of the Yawuru people, so it was said, a report by Mr David Mardiros an anthropologist (the Mardiros report).  In this report, Mr Mardiros confirmed the use which had been made of the area by aboriginal people as a camping and meeting place, and identified an initiates' track through part of the area which linked two nearby ceremonial grounds.  He referred to the "power" that the Yawuru elders considered still to be present in the area, and made brief mention of two aboriginal traditions, one relating to mythic heroes and "The Song Cycle", as showing a possible relationship between aboriginal people and the land.  He expressed the view that there may be other information of significance which he had not been able to ascertain in the time available to him and recommended further investigation.  The ACMC resolved, on 7 July 1993, on the basis particularly of this report, to recommend to the State Minister that consent not be given to the proposed use of the land.

                   Meetings continued to be held.  On 21 April 1993 the new State Minister, there having been a change of government, initiated a mediation process.  Shortly afterwards, the Commonwealth Minister contacted the State Minister for the first time, referring to the application received on 7 October 1992. In accordance with s13 of the Commonwealth Heritage Act he sought urgent advice as to whether there was, under a law of the State of Western Australia, effective protection from the threat of injury or desecration to the land, pointing out that the land was vacant crown land which was claimed by the Yawuru people.  The State Minister then provided advice as to the provisions of the State Heritage Act, his own duty under it, and as to what was then taking place.  He concluded with the advice that he would make a decision after 30 June 1993.  On 8 July 1993, the State Minister gave his consent, subject to a survey of the initiates' track identified in the Mardiros report and its excision from the Special Lease, and to a condition that the track be protected by Mr Douglas against disturbance.  On 7 September 1993 the State Minister, at the Commonwealth Minister's request, provided advice as to the process by which he had arrived at that decision.

                   Between September 1993 and January 1994, applications were made to the Supreme Court of Western Australia by Mr Djaigween and others for injunctions restraining the grant of a lease or the doing of any work on the land in respect of which
claims for native title had been made.  In the meantime, further meetings took place with respect to further possible excisions.  The orders were not granted, and an appeal was lodged.

                   Matters then proceeded apace.  On 1 February 1994, the Commonwealth Minister received a letter from the legal representatives of the Kimberley Land Council, said to have been written on behalf of the Yawuru people.  They sought both an emergency declaration under s9 and a declaration under s10 of the Commonwealth Heritage Act.  The letter referred to the findings of the Mardiros report and to the opinion of another anthropologist, Dr Patrick Sullivan, to the effect that the area was of particular significance to the Yawuru people in accordance with their law, traditions, observances, customs and beliefs.  Dr Sullivan's report, the letter explained, in addition to confirming the finding of Mr Mardiros, found evidence of a mythological "two snake dreaming" site in close proximity to the proposed farm.  It was also claimed to have shown that the area had long been used for camping, for passage between other places of economic or ceremonial importance, and for the taking of bait.  The letter referred, in particular, to the emphasis of the report upon the use of the area for passage (by the initiates' track) between two ceremonial grounds.  There was also an explanation of what was said to have occurred in the Court proceedings, and of the view taken by the Court in refusing to grant an injunction.  As is the case in relation to the letter of 7 October 1992, there was no suggestion that this letter did not amount to an application under sections 9 and 10.  Another letter followed on 2 February 1994, requesting urgent action as work had commenced on the land.  On the same day, the Yawuru people filed applications in this Court for a determination of native title to lands which included the land in question, and sought orders restraining Mr and Mrs Douglas from carrying out works.  During the hearing of an application for an interlocutory injunction, on 3 February 1994, Mr and Mrs Douglas came to an arrangement with the Yawuru group's solicitors to give 48 hours notice prior to the commencement of any further works.  The hearing was then adjourned until March, when it was transferred by Carr J to the Supreme Court of Western Australia. 

                   On 3 February 1994, the Commonwealth Minister signed an emergency declaration under s9 of the Commonwealth Heritage Act.  Describing the area affected as "Broome Lot 2826", it recited the Minister's satisfaction that this area was a significant aboriginal area which was under serious and immediate threat of injury or desecration, and it prohibited specified activities on the land for a period of thirty days.  A further emergency declaration, also for a period of thirty days, took effect on 6 March 1994, being followed by a final declaration made under s10 on 6 April 1994, as previously stated.  Only that final declaration is the subject of this appeal.

                   On 14 February 1994, the Commonwealth Minister had appointed the Honourable Frederick Chaney to report to him with respect to the application, and to meet with the parties with a view to resolving the dispute, a process for which s13(3) of the Commonwealth Heritage Act  makes provision.  The nomination of a reporter was an essential step, if a declaration was to be made (see s10(1)(c) of the Commonwealth Heritage Act), but it was also required of the Commonwealth Minister as a duty under the
Act:  Tickner v Chapman (473) (Norvill v Chapman 249);  Tickner v Bropho (1993) 40 FCR 183.  Mr Chaney subsequently, on 3 March 1994, published a notice inviting interested persons to furnish representations with respect to an application "on behalf of aboriginals seeking the preservation and protection from further injury of a significant aboriginal area in the vicinity of a proposed crocodile farm near Broome in Western Australia".  In the meantime he had met with the solicitors for the State and Mr and Mrs Douglas.  At this meeting, his Honour found, it was agreed that Mr Chaney was to attempt mediation, and if that was unsuccessful he was to proceed to the report stage.  Material submitted by one party would be made available to the other party, as would any information provided in confidence during the mediation if the party providing it had asked it to be taken into account for the purposes of the report.

                   The matter did proceed beyond mediation.  Included in the information received or recorded by Mr Chaney in the course of his duties as a reporter were:

–                  two letters from the Kimberley Land Council dated 17 and 22 March 1994 raising matters of complaint about the manner in which the State had dealt with the matter and enclosing a further report of Dr Sullivan of March 1994;

–                  a written submission from the Goolarabooloo Aboriginal Corporation received on 21 March 1994, and notes of a later meeting with members of the corporation concerning matters raised in the submission;

–                  a written submission dated 21 March 1994 by Mrs Jackson on behalf of the Kimberley Conservation Group;

–                  statements made by a Ms E Foy which contradicted the letter of 18 March 1991 written by Mr Douglas to the heritage officer.

A letter from the Kimberley Aboriginal Law and Culture Centre was also apparently sent to Mr Chaney by the Aboriginal & Torres Strait Islander Commission, but nothing seems to turn upon it.

                   The submission from the Goolarabooloo group was attached to Mr Chaney's report to the Minister, as representations are required to be (s10(3)(b)).  This submission is a little difficult to follow, but it appears to refer to a need to keep crocodiles and alligators within allocated boundaries, and to a "two snakes" dreaming story.  The note Mr Chaney made of his later meeting with the group in Broome on 28 March 1994 refers to that story, and to the concept of some danger inherent in the land.  What the submission and conversations at the later meeting also raised was what had been said by Mr Roe to Mr Douglas in March 1991, prior to Mr Douglas writing the letter of 18 March to the officer then conducting enquiries.  It was alleged in the submission that Mr Roe told him to consult with the Yawuru.  This is to be contrasted with the account given by Mr Douglas that Mr Roe, speaking for those people, had advised there were no significant sites on the land.  It was then said at the meeting with Mr Chaney that Mr Douglas had subsequently acknowledged the error in his account.  Mr Chaney also showed Mr Douglas's letter to Ms Elsta Foy, who pronounced it inaccurate and alleged that Mr Roe had said something about camping, but that he could not speak for the area,
and that she had publicly contradicted Mr Douglas about the tacit permission he had said was to be inferred from what Mr Roe had said.

                   The two letters from the Kimberley Land Council, again expressed to be on behalf of the Yawuru people, raised matters relating to three issues:  matters affecting what Mr Douglas had reported as the results of discussions, as to which it was claimed that what he had conveyed ought not to be relied upon;  matters concerning the availability of alternative and viable sites, as to which also Mr Douglas's claims that none had been found were contradicted;  and a matter which was said to be of "fundamental importance" - that Mr Douglas and the State authorities had failed to make a proper investigation and evaluation of the significance of the area.  It was alleged that the ACMC had acted on the non-expert advice of Mr Douglas and the female aboriginal heritage officer, when it should have engaged qualified consultants to speak with the senior people having responsibility for the area.  And, the allegations proceeded, the Department should have known not to send a woman to enquire into mens' business.  It was implied that further inquiries ought to have been made consequent upon the receipt of the Mardiros report.  The submission on behalf of the Kimberley Conservation Group referred to the suitability of other sites, and suggested Mr Douglas's objections to some of them ought not be regarded as credible.

                   The report of Dr Sullivan also contained strong criticism of the State's investigation of the matter.  In what his Honour accepted, on the State's own submission, to be the most comprehensive report on the matter furnished to date, Dr Sullivan clarified
the importance of control of the whole of the land as necessary for the continuation of the ritual practised at nearby ceremonial grounds.  The ritual was one which aboriginal tradition held to be dangerous to be observed by women or by the uninitiated.  And, in Dr Sullivan's view, protection of it could not be regarded as satisfied by the provision only of passage through the land by the "initiates' track" earlier mentioned.  He referred as well to the land's historical and traditional importance as a camping area, to the belief held that the ground ought not to be disturbed, and to it being a documented snake-dreaming site.  Dr Sullivan referred to another aspect of the lands' importance in myth.  It will be recalled that Mr Mardiros had alluded to mythical heroes, who might be associated with the land, but was then unable to take the matter further.  Dr Sullivan now explained that the land contained a site which was the start of the travels of these mythic heroes whose journey is the subject of possibly the most widely accepted ritual complex in Australia.  The significance of this, whilst connected with ritual practised nearby, concerned a larger number of aboriginal groups, and the effect, if the cycle of song were broken, would be that they would all suffer some loss of tradition.  In this respect, it was the Yawuru who had responsibility for maintaining the integrity of this particular aspect of the song cycle.  It was not until 11 March 1994, according to Dr Sullivan, that the Elders responsible for this law had related it, and identified the sites and track associated with it on the land.  Dr Sullivan reported that Mr Chaney was present at that meeting "and later Mr Douglas", although it was not suggested elsewhere or in argument that this meant Mr Douglas had been privy to the discussions when the secret myth was outlined.  (There is reference in Mr Douglas's later letter of 31 March 1994 to "knowledge of ... an extremely secret `men's business' snake story" (part of a Song Cycle) which was told to Mr F Chaney by
Mr Roy Wiggen.  This Song Cycle did not go near the proposed site".  Mr Wiggen was not listed as present at the meeting on 11 March and the terms of Mr Douglas's letter suggest he was not told of the Elders' advice that day.)

                   Mr Chaney did contact both the solicitors for Mr Douglas and the solicitor for the State concerning some of the matters recently submitted to him, before he forwarded his report to the Minister.  He advised the solicitors for Mr and Mrs Douglas on 29 March 1994 of the general nature of the Goolarabooloo submission and, it seems from following correspondence, of the rejection of Mr Douglas's version as to what Mr Roe had said concerning the significance of the land, but he did not furnish them with a copy of the submission or of his notes of the later meeting.  This telephone conversation prompted the solicitors to write a letter dated 30 March 1994, from which it appears they understood that significance was attributed to the land, but did not appreciate what this significance was said to be.  The solicitors asserted they believed it was "the snake story".  The letter went on to advise that Mr Douglas remained adamant on an important point:  at no time had he been informed about problems with the site from an aboriginal viewpoint, or that the Yawuru in particular had indicated there were problems.  He had not, however, been able to contact the group in the short time since Mr Chaney's telephoned advice.  The solicitors' letter also enclosed a letter from Ms Foy to Mr Douglas written in July 1990, in which she declined support for the crocodile farm, asking him to nominate more than one site.  Ms Foy did not then refer to the land having any particular significance. 

                   On 31 March 1994 the letter from Mr Douglas himself, referred to above, was forwarded to Mr Chaney.  As to any significance the land might have, he advised:

                   "... to this day we still do not know what the alleged significance is apart from vague, generalised stories about a snake and a song cycle..."

Mr Douglas alleged that there was a small group of aboriginal people who were simply opposed to the development.  A person associated with Ms Foy was one of them and was likely to have influenced her.  Mr Douglas was attempting to contact the group to discuss the matter and to ascertain why they had changed their position.  He stressed that he needed an opportunity to respond "to this development and to explain to Mr Chaney what has happened".  The solicitors' letter was set out in full in Mr Chaney's report to the Minister.  The letter from Mr Douglas was sent separately by facsimile to the Minister.

                   Mr Chaney informed the solicitor for the State, Mr Humphry, in a little more detail concerning the Goolarabooloo submission.  During a telephone call on 30 March 1994 from Mr Humphry, Mr Chaney read out extracts very quickly, his Honour found.  Mr Humphry asked to see a copy of the submission, saying that if Mr Chaney had information which influenced him against one side on an issue he should let the other party see it.  The next day Mr Humphry wrote reiterating those concerns and requesting access to the information.  He also observed that this was the first time an allegation had been made that the State had been negligent in the manner in which it had addressed the question of the significance of the land, and asserted the State wished to have an opportunity to be heard on it. 

                   Mr Chaney's report was faxed to the office, and then to the home, of the Commonwealth Minister on the evening of 31 March 1994, and the original report, with the representations which had been received by Mr Chaney, was taken to his office on the following day, Good Friday. 

                   The report of Dr Sullivan, which was annexed to Mr Chaney's report, was expressed to form part of "the formal submission from the Yawuru for the purposes of this report".   It claimed significance for the land in seven ways:

"(1)              The area is required to exert control over behaviour in the vicinity of the Yuna, Mideree and other initiation rituals.  It is significant in aboriginal tradition in this respect and inconsistent use will desecrate the objects, persons and relationships associated with those rituals.

(2)               The area is required for the passage of initiates, secret/sacred boards, and associated secret painted body designs and songs, between one site of ritual and another.  Inconsistent use of the area will cause desecration of these objects, persons, and their relationships.

(3)               Development of the area will prevent those who have recently entered the first stage of initiation from completing the process in the next stage, causing spiritual distress to themselves and their families, and desecrating the practice of their tradition.

(4)               The area is a traditional camping ground.  The proposed development is inconsistent with this traditional activity.

(5)               The area is imbued with power below the ground surface and is referred to as poisoned.  Disturbance of the ground will cause desecration.

(6)               There is a mythological site of great contemporary significance associated with the area.  Use of the area in the manner proposed according to aboriginal testimony, will cause disturbance of the site, injury and desecration.

(7)               The area is traversed by a track along which mythological beings passed whose exploits are celebrated in secret initiation ritual over a wide area of the coast and centre of Australia.  Development of the area in the manner proposed is inconsistent with aboriginal tradition and adversely affects its significance.

                   In the opinions offered in the conclusion to his report, Mr Chaney pointed out that the claim for significance did not depend just upon the snake dreaming story or that relating to the mythic heroes.  The particular significance of the land, in his view, arose from claims (1) to (4) in Dr Sullivan's report.  Mr Chaney advised that he did not have a concluded view as to claims 5, 6 and 7, involving the more recent reference to the mythic heroes and the Song Cycle, but went on to say:

                   "16.19        That is not to say that they are not a basis for the land being of particular significance for aboriginals but without further evidence and examination it is not possible for me to be certain.  There is no doubt that there is a two snake or one eyed snake dreaming site but the extent to which it impacts on the land is in dispute.  With respect to both point 5 and point 7 I am satisfied that there is a serious claim for examination but I would require further time and consultation to report adequately on the degree of significance to be accorded these claims".

Later, when discussing the possible duration of the declaration he suggested:

                   "21.1          In light of the range of legal uncertainties relating to the status of the land and the lease and the further claims of significance which are not dealt with definitively by this report the Minister may wish to limit any declaration to a period sufficient to allow the determination of those legal and other issues.  In that event the Minister may also wish to direct further enquiry into the outstanding factual issues relating to the cultural significance of the land".

                   The question of credibility was addressed at the outset of the conclusions, and it was referred to at a number of points in the body of the report.  With respect to his conclusion that "at this stage of enquiry" the land was an area of particular significance to aboriginals in accordance with their tradition and that it was under threat of injury or desecration, he explained that this conclusion was not based upon either acceptance or rejection of all claims for significance, "some of which are contested by the State and Mr Douglas on the basis of conflicting aboriginal views and/or a lack of credibility because of claimed recent emergence of the claims".  He went on to point out, however, that the pattern of "gradual emergence" was not unusual:

                   "Nor are the issues of credibility all one way given that Paddy Roe and other members of the Goolarabooloo Group contest Mr Douglas' account of the alleged site clearance by Paddy Roe in March 1991.  They claim to have done so publicly in the past and indeed to have met with Mr Douglas on the issue who is said by them to have admitted to a mistake.  If on the other hand Mr Douglas' response is accurate the credibility of the Goolarabooloo Group comes into question".

                   In summary, the opinion Mr Chaney was communicating to the Minister was that the importance of the land, sufficient to warrant protection, lay in its connection with the maintenance of the Yawuru culture by preserving, not only the initiates' track identified in some reports, but also the Yawuru people's right to control the land, which in turn would preserve confidentiality and access to the ceremonial grounds.  He did not, however, put out of the picture the significance of the myths about which he could not presently be certain.  In his concluding paragraph, he said:

                   "22.12        In the context of the Commonwealth's own consideration of the claims for particular significance should the Commonwealth Minister not agree with the view expressed in this report with respect to Grounds 1 to 4 in the Sullivan report then on the same basis further consideration will need to be given to Grounds 5,6 and 7 as set out in that report."

Elsewhere in his report, and with respect to the topic "The extent to which the land is or may be protected by or under the law of Western Australia;  and the effectiveness of any remedies available under any such law", Mr Chaney pointed out that, whilst it may have been reasonable for the ACMC to take no further action to investigate the other myth Mr Mardiros thought might be relevant to the land, since it ultimately recommended refusing consent on the basis of preservation of the initiates' track, the State ought to have looked into that matter when it did not follow the ACMC's advice.

                   There is a question on this appeal as to whether the Commonwealth Minister himself considered the representations, as he is obliged to do by s10(1)(c) of the Commonwealth Heritage Act.  His Honour found that it was probable he had not done so.  The facts relating to that issue will be dealt with later in these reasons.  For present purposes, in completing the background to the Minister's decision, as relevant to the question whether the State and Mr and Mrs Douglas were denied natural justice, it is necessary only to refer to the communications between them and the Minister prior to his decision on 6 April 1994 to make the declaration.

                   On the afternoon of 5 April 1994, the Commonwealth Minister wrote to the State Minister and to the solicitors for Mr and Mrs Douglas.  He informed them that Mr Chaney's report had recommended the making of a declaration for a substantial period of time.  In each letter, the Minister advised that, subject to the views of Mr Chaney and the Goolarabooloo Group, he would make a copy of that group's submission available for responses provided he received an undertaking from Mr Douglas that no work would take place while his decision was deferred.  Mr and Mrs Douglas had by this time given notice of their intention to commence work, and they would be in a position to do so on the expiry of the emergency declarations on 6 April.  The Commonwealth Minister also advised the State Minister that he did not regard the State's administration of the matter in the past as presently relevant, but he did consider the current administration of the State Heritage Act was.  No reference was made to the report of Dr Sullivan, or to the material concerning the alleged availability of other sites.  The letters concluded with the advice that, given time constraints, the Minister would need their views by midday the following day, 6 April.  The Minister in fact made his decision the following day, his Honour found, prior to the receipt of a response from either party.

Whether Procedural Fairness was Denied

                   His Honour held that the State was denied procedural fairness in having had no reasonable opportunity to comment on the submission from the Goolarabooloo Aboriginal Corporation, the letters from the Kimberley Land Council, or the report of Dr Sullivan.  The importance of the Goolarabooloo submission and the need to afford the State an opportunity to respond to it, in his Honour's view, related not only to the alleged significance of the land, but also to Mr Douglas's credibility.  We take his Honour to say that the submission was a relevant matter for comment by both Mr Douglas and the State, in the case of the latter no doubt because it and its departmental officers may have acted in part on the basis of what Mr Douglas had related, and in any case may have wished to support their approach by reliance on what he had to say.  Both the Kimberley Land Council submission and the report of Dr Sullivan raised questions as to the way in which the State had handled the question of the land's significance, matters directly relevant to the effectiveness of any protection afforded by the State Heritage Act, an issue dealt with in the report and one for ministerial assessment. The report of Dr Sullivan clearly raised an important further ground for the attribution to the land of significance, not only to the Yawuru but to aboriginal people over a wider area.

                   In addition to the disclosure, for comment, of the Goolarabooloo submission and that from the Kimberley Land Council, his Honour considered fairness required that Mr and Mrs Douglas have the opportunity to respond to the submissions made on behalf of the Kimberley Conservation Group as to other available sites and Ms Foy's assertions as to whether permission had been given by the Yawuru.

                   His Honour rejected the submission that there was nothing new contained in either the Goolarabooloo submission or the submission made on behalf of the Yawuru.  Whilst Dr Sullivan's report did reiterate earlier claims, what was new in it was, in his Honour's view, "very significant".  And his Honour rejected the submission that what had been communicated by Mr Chaney sufficed or that the conditional offer contained in the Minister's letter of 5 April afforded a proper opportunity to those parties.  It plainly offered nothing capable of acceptance by the State.  His Honour also rejected an argument to the effect that the provisions of the Commonwealth Heritage Act impliedly excluded the common law requirements of natural justice.  That submission, on behalf of the Commonwealth Minister, was again advanced on this appeal. 

                   The process to be undertaken on receipt of an application under the Commonwealth Heritage Act has been dealt with in Tickner v Chapman (Norvill v Chapman) and Tickner v Bropho (1993) 40 FCR 183, (114 ALR 409).  A reporter is required by the Act to be nominated by the Minister upon receipt of an application which fulfils the description in s10(1)(a).  The reporter then states the purpose of that application in public notices:  s10(3)(a)(i), so that the public is thereby informed of the area of land or water in question, the significance of aboriginal tradition or culture said to be associated with it and how it is threatened.  And they are advised of the matters the report will be dealing with, those set out in s10(4).  By that notice "interested persons" are invited to furnish representations.  When they are received the reporter gives "due consideration" to them (s10(3)(b)), and the report, with the representations attached, is then forwarded to the Minister who must consider the report and the representations and other matters considered relevant:  s10(1)(c) and (d). 

                   It could scarcely be doubted that both the State and Mr and Mrs Douglas had interests such that a duty to afford natural justice arose before the Minister exercised the power under the Commonwealth Heritage Act to make a declaration having the effect of severely limiting the uses to which the land could be put for a substantial period.  It would only be if the statute clearly excluded the common law requirements that the duty could be held not to arise:  Kioa v West (1985) 159 CLR 550, 584;  Annetts v McCann (1990) 170 CLR 596, 598.  Mr Willheim, counsel for the Minister, submitted that where a statute makes provision for the procedures to be followed, including the right to make representations following public notice, as s10 does, no further requirements can be engrafted on the statutory scheme.  But, as was pointed out by Mason CJ, Deane and McHugh JJ in Annetts v McCann at 598, an intention to exclude is not to be inferred merely from the presence in the statute of some rights which may be considered to be commensurate with some of the rules of natural justice (and see also Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, there referred to).  The question, as their Honours explained, is not whether the rules of natural justice require an extension of the rights already conferred by the statute, but whether its terms display a legislative intention to exclude, relevantly, the common law right to be heard in opposition to a potential decision prejudicial to a party's interests.  Moreover, the intention to exclude must be disclosed by "plain words of necessary intendment" and is not to be assumed from "indirect references, uncertain inferences or equivocal considerations":  Annetts v McCann at 598 and the cases there cited.

                   If the provisions of the Commonwealth Heritage Act are examined in the light of these broad principles, it will be seen that the provision for notification to the public made by the Act is no substitute for what natural justice would require to be given to those who might be directly affected by a declaration.  In fact, the purposes, as well as the nature, of the statutory provisions are different from those of natural justice.  The statutory provision aims, as was emphasized in Tickner v Bropho and Tickner v Chapman,(Norvill v Chapman) to ensure a widely diffused public participation, so as to garner all the knowledge of the community.  Thus the process of inquiry will have the potential to be enriched from many sources.  The principle of natural justice aims, on the other hand, to focus on those particular individuals whose interests or legitimate
expectations may be affected by the making of a declaration.  Theirs is a special right protected by the principle, and the nature of the protection it requires them to have is much more specific than the publication of notices in journals or gazettes.  They are entitled, unless the statute excludes the right, to a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests.  Such a proper opportunity involves proper notice of the case they have to meet.  There is nothing in the broad provisions for general notices about the inquiry being undertaken to answer what the law requires before they can be denied their right of natural justice.  The concerns of s10 are directed to an entirely different issue, and compliance with its provisions vis-a-vis the community at large would neither satisfy nor inhibit compliance with the principle of natural justice vis-a-vis persons in the position of the State and Mr and Mrs Douglas.

                   It was submitted that both the application and the content of natural justice or procedural fairness are to be derived in part from a consideration of "the particular statutory framework":  Mobil Oil Australia Proprietary Limited v Commissioner of Taxation (1963) 113 CLR 475, 503-4.  The relevance of the particular statutory purpose and requirements was referred to by Mason J in Kioa v West (584-5) in these terms:

                   "... What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting ...

                   In this respect the expression `procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the
particular case.  The statutory power must be exercised fairly ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations."

The object of the Commonwealth Heritage Act is to preserve and protect land and objects which have particular significance in accordance with aboriginal tradition, as that term is defined:  see s3 and s4 and Tickner v Chapman 460, 474, 488 (Norvill v Chapman 236, 249, 263).  Counsel for the Minister placed some weight upon the stated object, and implicit in his argument was that it might not be achieved if the processes which his Honour held were necessary were undertaken.  We do not think that is so.  The scheme of the Act is not that a declaration will be made if the Minister is satisfied as to the question of significance, without input from others.  And paragraphs (e) and (g) of s10(4) recognise that the effect a declaration may have on other persons' interests and the extent to which the land or objects might already be considered as the subject of protection are important matters for the Minister's consideration.  It follows that the reporter may well be involved in a process of fact-finding which places the reporter in dialogue with those whose interests may be affected and with State governments, or their agencies, which administer other legislation having similar purpose.  So understood, to afford them the opportunity to contradict or comment upon issues raised which have the potential to influence the Minister's decision is consistent with and not at odds with the reporting and decision-making process envisaged by the Statute.

                   Carr J, in holding that procedural fairness required that opportunity be given to the State and Mr and Mrs Douglas with respect to the later material received by the
reporter which we have set out above, observed however that the duty will not extend to every member of the public or person "interested" in whether a declaration is made and we respectfully agree.  With respect to persons such as Mr and Mrs Douglas and with respect to the State, however, fairness would demand that they be made aware of and be given an opportunity to deal with information which comes to hand and which is against their interests, at least where it is credible, relevant and of likely significance:  Brennan J, Kioa v West 628.  Reliance was placed upon the decision of O'Loughlin J in Chapman v Tickner (1995) 55 FCR 316, 333-4 where his Honour expressed the view that the obligation owed to persons having a direct and financial interest was nevertheless limited to them being given the opportunity to make written representations as might any other member of the public reading the advertised notice.  With respect we cannot, for the reasons above stated, agree.

                   Support was also sought to be drawn from the nature of process envisaged by the Statute - a process of information-gathering by the reporter appointed under the Commonwealth Heritage Act, the furnishing of a report and recommendation and finally a decision made by the Minister - as foreclosing the possibility of what, it was said, would amount to a second consultation process, if either the reporter or the Minister were said to be obliged to disclose fresh material to Mr and Mrs Douglas and the State.  However, it seems to us that there was neither a statutory nor a practical constraint in doing so and in ascertaining their views on the new material.  The case principally relied upon by the Commonwealth Minister, South Australia v O'Shea (1987) 163 CLR 378, is not authority for the view that whenever there are stages - such as ascertainment and
evaluation of fact, report and recommendation to the decision-maker and then decision - no further action will be required.  It may be observed that the Court was there concerned with fact-finding which involved one single hearing, not an ongoing exercise as here.  The critical features of the case were that the process following that hearing did not permit of another opportunity to make further submissions (403,410) and, importantly, the hearing provided adequate opportunity for the prisoner to be heard on the very matter he later sought to raise:  see 389-90, 403, 410.  The nature of the inquiry provided for in the legislative model there under consideration was such, in our view, that issues likely to be relevant to the reporting body or the decision-maker would be obvious, or the board conducting the inquiry would be in a position to seek the prisoner's submissions on matters to which he might not be alert.  It is in that sense that we understand Mason CJ's following comment upon the model (389):

                   "...the hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness".

(This comment was referred to with approval in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578).  And it is of note that his Honour went on to add this qualification:

                   "...If the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity:  Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24".

See also 403 (Wilson and Toohey JJ) and 409-10 (Brennan J).

                   Here the process undertaken by the reporter is likely to prove a fluid one.  Not all information received will fall within a range which either the reporter, the applicants, or those whose land or other interests might be affected, can predict.  The allegations here made at a late stage, not apparently responsive to anything earlier raised, concerning the conduct of the investigations by the West Australian government provide a good example.  The further information relating to new grounds supporting the significance of the area provides another.  If this further information was not a wholly new ground for a declaration (as to which see Tickner v Chapman 492, Norvill v Chapman 267), it substantially expanded upon a myth or song cycle in detail, providing a location for it, and none of this was known to the parties whose interests could be affected.  We shall deal with the submission concerning what could practicably be done in the time available in more detail shortly.  In our view, however, there was no real practical difficulty which prevented the reporter providing the material in some form for comment, and in that way affording a hearing.  That the nature of such a hearing can be adapted to particular circumstances was a matter stated by Gibbs CJ in FAI Insurances Limited v Winneke (1982) 151 CLR 342, 350:

                   "No practical difficulty exists in affording a proper hearing to a person who will be affected by the refusal of an application for renewal of an approval under the Act.  The nature of the hearing to which a person affected is entitled must always depend on the circumstances of the case, and in a case such as the present fairness requires that the applicant company should be apprised of the allegations against it and should be given a full and fair opportunity to answer those allegations in writing.  The hearing, of course, is not by the Governor in Council as a body, but by the person - whether the Minister or the Departmental head - who in fact makes the decision.

                   In the present case the Minister did receive certain submissions from the appellants, but the appellants were not given an
opportunity to be heard after they had been informed of the reasons for the recommendation to refuse a renewal."

                   There is a further aspect of the matter.  His Honour found, it will be recalled, that Mr Chaney had told Mr and Mrs Douglas he would disclose to them information which was relied upon in support of the application by the other parties to the mediation. Obviously, the purpose was to permit comment.  This assurance contemplated the provision of information about claims by the Goolarabooloo group and the Yawuru and of Mr Chaney's notes of conversations with them, but did not perhaps relate to the claims of the Kimberley Conservation Group.  At least then with respect to the aboriginal groups pressing claims that the land had some particular significance for them, the State and Mr and Mrs Douglas would have expected that the groups' later statements and submissions to the reporter would be provided to them before the report and that material was forwarded to the Minister, and that their comments, which might also be dealt with by the reporter, would be made known to the Minister.  In agreeing to that course, Mr Chaney was acknowledging that fairness required it.  The assurances given by him in our view could be taken to have created a legitimate expectation in the minds of Mr and Mrs Douglas and the representatives of the State:  Annetts v McCann, 599;  South Australia v O'Shea 387. 

                   There would of course be no obligation to disclose the materials listed above if the State and Mr and Mrs Douglas had earlier been put in a position, by sufficient information, to enable them to make their answer.  Many of the topics dealt with in Dr Sullivan's report had come to their knowledge, having been included in affidavit material filed in the Court proceedings to which the State and Mr and Mrs Douglas were also parties.  These topics extended to the history of camping on one section of the land, details of the use of a track which connected ceremonial grounds, particulars of the use of the land for fishing and the taking of bait, and the fact of its connection with one or more snake dreaming stories.  But whilst the Mardiros report had hinted at the possibility of a story concerning mythical heroes and of its importance, no further explanation could be provided at that time.  And the later report of Dr Sullivan not only provided the essential elements of the story, but also set out to show its connection with ceremony, its place in a wider song cycle and its importance therefore to a larger number of aboriginal groups.  He claimed to have been told, too, which part of the land was involved.  In these circumstances, his Honour was right to conclude that what was new was of considerable importance.

                   There were two other issues raised for the first time, which could be seen as connected with that just mentioned.  We refer to the complaints concerning the State's handling of the matter and the doubt cast upon Mr Douglas's credibility.  The assertions by the Goolarabooloo, with whom Mr Roe was associated, and by Ms Foy, went beyond a simple denial of Mr Douglas's account of what Mr Roe had said to him.  They put forward a different account and alleged a public retraction by Mr Douglas.  And whatever Mr Roe had in fact said about whether there were any important sites on the land might be taken as reflecting the viewpoint, not only of his people, but also of the Yawuru.  If what they now said was taken as credible, it might influence the Minister against Mr Douglas and serve to remove any doubt which might be raised in his mind concerning the
late emergence of the Yawuru claim relating to the Song Cycle.  And if the criticisms directed against the State were accepted, further explanation would thereby be provided, since it was now sought to say that its consultative process was inept and that matters of real concern to aboriginal people had not in consequence been properly ascertained.  There was another doubt newly cast upon Mr Douglas's credit, namely that respecting other sites said to be viable.  No reference was made in submissions on the appeal to any earlier disclosure of these alleged locations.

                   It was submitted that any non-disclosure could be taken as having had no effect on the Minister's ultimate decision, either because, in some respects, no comment could meaningfully be made upon them, or because the reporter had not concluded any issue against the interests of the State or Mr and Mrs Douglas.  It is difficult to accept that the State could have had nothing to say about the opportunities which had been made available for the Yawuru to raise the matters latterly advised to Dr Sullivan and Mr Chaney, or that Mr Douglas could have had no worthwhile points to raise concerning the other sites and the efforts he had made to find another that was suitable.  So far as concerned the mythical heroes and the Song Cycle, the parties could have consulted anthropologists and, more importantly, other aboriginal persons.  Even if one accepts that Dr Sullivan presented a strong case for the veracity of the Song Cycle, it cannot be said that no person could then have had some information as to the identified locations on the land, or any opinion as to whether the use proposed for the land would have the destructive effect contended for.  In some cases, one might expect that a person will only be able to rebut a denial of his or her account by another denial; and then it may be
possible to conclude that no useful purpose would be served by offering such a right of reply.  But prudence and fairness here demanded that the opportunity be given to Mr Douglas to refute the destructive allegations made against him.  The affidavit material before his Honour provides examples of what Mr Douglas might have raised:  accounts of other conversations with Yawuru men in 1991 and of a public meeting in 1992 at which, he says, Mr Djaigween, Chairman of the Goolarabooloo Aboriginal Corporation, said there were no sacred sites on the land.  And the letter reviewed by the Minister after he had made his decision shows that Mr Douglas thought there was an explanation as to why there had been a "change of attitude" by the aboriginal groups.

                   It is therefore, in our view, impossible to conclude that if an opportunity for comment had been afforded the State and Mr and Mrs Douglas they could not have usefully availed themselves of it.  If it were necessary for those parties to show that the new material might have influenced the Minister they may well have been able to do so in the present case.  Mr Chaney had suggested that, should the Minister wish to investigate land title or the unresolved claims for significance, a shorter period of declaration might be contemplated.  The declaration made was for a relatively short period of five years.  And in the s13 reasons those whose traditions or beliefs were associated with the land were said to be not only the Yawuru, but also "other aboriginal people".  This might refer to the Goolarabooloo, who could however have been named.  It is more likely that it springs from the wider significance claimed for the Song Cycle to a number of groups, asserted in the Sullivan report.  But it was not necessary for the State and Mr and Mrs Douglas to demonstrate the effect in fact of the material that was not disclosed to them.  
The Courts, when faced with a denial of natural justice, do not undertake an evaluation of the chance that it may not, in any event, have altered the outcome, save in an exceptional case where that is obvious, for example because only one conclusion was open.  That is not the case here.  It is not necessary, as his Honour held, for applicants for judicial review to show that the matters which they had not had the opportunity to contradict did in fact work to their prejudice.  In this respect his Honour referred to the observations of Wilson and Brennan JJ in Kioa v West (603,629):

                   "Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account".

In Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 it was observed that not every departure from the rules of natural justice would result in a new trial being ordered.  One may also conclude that a decision subject to review will not be quashed on proof of breach of the rules if it would be futile to quash it.  In the context of litigation, their Honours in Stead (145) cautioned against too ready a denial of a new trial on a basis which assumed that the result must inevitably be the same.  In their Honours' view it is not easy for an appellate Court to satisfy itself that what appears to be a plain denial of natural justice could have had no bearing on the outcome of a trial on issues of fact.  In the context of many administrative decisions, often involving value judgments
and policy considerations, any useful assessment of such a question would in our view be impossible. 

                   The caveat upon the obligation to disclose of which Brennan J spoke in the passage cited above from Kioa v West, where problems of confidentiality arise, was also relied upon by Counsel for the Minister to excuse non-compliance with the rules of natural justice.  The only claim to confidentiality related to that part of Dr Sullivan's report dealing with the mythic heroes, and even then it seems to us that the report is expressed in careful terms so as not to reveal any more than is necessary to convey the importance of the myth.  We shall however proceed upon the basis that disclosure of what is in it is objected to on good grounds.

                   This appeal does not concern notification to the public of the traditions and beliefs relied upon to support the declaration and said to be under threat, as was the case in Tickner v Chapman; (Norvill v Chapman).  We observe however that the notice did not contain any description of what was contained in the letter received by the Minister on 1 February 1994.  The question of disclosure here is limited to whether the reference to the myth ought to have been disclosed to Mr and Mrs Douglas and the State's representatives.  Ms Wheeler QC, on behalf of the State, submitted that what was required was to reveal the gist of the material contained in the report; she did not contend that the whole of it needed to be disclosed. 

                   We respectfully agree with the observations of Carr J.  It is difficult to accept in the circumstances of this case that some accommodation could not be reached.  The parties had shown a willingness to co-operate, and it would have been in their interests to continue to do so.  It was not explained how this Court can arrive at a view contrary to that held by his Honour when there was no suggestion that the Kimberley Land Council or the Yawuru people concerned had even been asked whether this course could be followed.

If there were not sufficient trust between the parties to permit disclosure on a confidential and limited basis, nevertheless in our view there should have been disclosure by the reporter in some appropriate way.  It will be recalled that s10(4)(e) requires the reporter to address, specifically, the potential effects of a declaration on the property or financial interests of others.  It would be wrong then to permit one group to raise a ground of significance, which might very well influence the Minister's view on that critical issue, and yet deny those to be affected seriously by such a decision knowledge of what is relied upon in part to support the claim, on the basis that it will be disclosed only to those who, in the view of the group, might advance its interests.  But, as we have said, there does not appear to have been any attempt to contact the Kimberley Land Council to ascertain its views.  We should add that if the parties could not agree upon disclosure upon a confidential and limited basis and it fell to the reporter to give disclosure for the purpose of satisfying the requirements of natural justice, those requirements might well permit disclosure by the reporter subject to strict conditions designed to preserve confidentiality to the greatest extent possible in all the circumstances.

                   The difficulties presented by the limited time left to the Minister, prior to the expiration of the emergency declarations and the commencement of works on the land, were also relied upon as warranting departure from what the rules of natural justice require.  In connection with that submission we observe that urgency cannot generally be allowed to exclude the right to natural justice:  Kioa v West, 615;  Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, 15.  Alternatively, it was submitted that the offer made by the Minister in the letter of 5 April satisfied those requirements.  The latter submission must be rejected.  Not only was the offer hollow, as events transpired, but it did not extend to all the undisclosed material, some of which was still completely unknown to the State and Mr and Mrs Douglas.  In any event it would, as his Honour held, be encouraging improper processes to decline to make an order quashing the Minister's decision on the sole ground that the Minister had run out of time to afford interested parties an opportunity for comment, when that state of affairs was largely brought about by delays on his own part, and on the part of his reporter. 

                   What has been accepted as being a valid application for a s10 declaration was received at latest on 1 February 1994. It may be recalled the Minister had earlier been alerted to some claims concerning the land when the s9 declaration was sought in October 1992.  Tickner v Bropho 194, 209, 233-4 delivered on 30 April 1993 had held that, upon receipt of an application for a s10 declaration meeting the requirements of the Act, the Minister was obliged to proceed to obtain a report so as thereby to inform himself.  But in the present case a reporter was not nominated until 14 February 1994.  It must be accepted that the mediation process then undertaken by the reporter was one proper to
pursue.  However, time was clearly running out.  The Minister could make only one further s9 declaration for thirty days, and the matter had dragged on for a long time, culminating most recently in litigation.  The better course would have been to appoint a separate mediator, as well as a reporter, so that the latter could commence the process necessary to the making of a decision by the Minister were that to become necessary.  It may be that, at the time of the appointment of the reporter, it could not be predicted that ascertainment of all that would ultimately be relied upon as grounds for significance would take so long, although Mr Chaney's later report acknowledges, to the contrary, that this is not unusual.  Mr Chaney had received all the material in question a week or more before he forwarded his report, but had not contacted the parties to discuss part of it until the day before it was sent.  Then Mr Chaney's report was sent by facsimile to the Minister on 31 March 1994.  A reading of it would have disclosed recent receipt of material and the request by the solicitor for Mr and Mrs Douglas to have access to that material.  No action was taken with respect to this request until 5 April, although the Minister's adviser was working in the Minister's office over the Easter period.  It seems to us that there was sufficient time to permit the necessary disclosure and obtain responses, had the Minister and those advising him been alert to the problem.

                   It was also contended for the Minister that the conduct in question, the subject of review, must be limited to that of the Minister, and that it does not include the reporter's omission.  We shall not set out the argument in full.  It depended upon something flowing from there being no separate challenge to the report itself as a "decision" under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"). 
The simple answer to it is that the applicants for review were not obliged to challenge that stage of the process separately.  They were entitled to seek review of all stages in the decision-making process, and a determination as to whether it "viewed in its entirety, entails procedural fairness":  South Australia v O'Shea 389.

                   In our opinion his Honour was correct in holding that procedural fairness had been denied to the State and Mr and Mrs Douglas.

Whether the Minister Considered the Representations

                   Section 10(1)(c) of the Commonwealth Heritage Act requires that the Minister "consider" both the report and the representations which have been received by the reporter and which are required to be attached to the report.  This, as Carr J recognised, is a statutory pre-condition to the Minister exercising the power to make a declaration:  Tickner v Chapman 461-2, 478, 493, (Norvill v Chapman 237-8, 253, 268),  Tickner v Bropho 40 FCR 209.  To the authorities discussed in Tickner v Chapman may be added the more recent decision of the High Court in Hot Holdings Pty Ltd v Creasy (1996) 70 ALJR 286 at 298 et seq.  The Minister's duty in this respect is a personal non-delegable task, and a failure to carry it out may result in the Minister's decision being set aside, as such a failure did in the first mentioned case. 

                   The Minister here had, in the statement of reasons given under s13 ADJR Act, listed the representations under the heading "Evidence and other material on which
findings were based".  The reference to the report and representations was in these terms:

                   "9.              The report prepared for me by the Hon Fred Chaney pursuant to s10(4) of the Act, in particular chapter 16 which contained Mr Chaney's conclusions concerning the significance of the area, and the representations accompanying the report.

The document went on to provide as "Reasons for my decision" -

                   "Having considered all the matters set out above, and in particular Mr Chaney's report, and being satisfied that the area was a significant aboriginal area, and that it was under threat of injury or desecration by the development proposed by Mr Douglas, and not being satisfied that the area was effectively protected under the law of Western Australia, and taking into account the objects and purposes of the Act, I decided that I should make the declaration".

It is not necessary to comment in any detail upon the unsatisfactory nature of this document.  His Honour did so.  It does not provide that which s13 requires.  It amounts to little more than an incantation of the words in s10, combined with a general reference to a bundle of material.  And it states the Minister's conclusions, not his reasons:  cf Kentucky Fried Chicken Proprietary Limited v Gantidis (1978) 140 CLR 675.

                   The process undertaken by his Honour was to take the reasons as having asserted that a consideration of the representations had taken place, and then to weigh the likelihood that that could have been so, given further explanation as to the basis upon which the s13 reasons were prepared, and given the circumstances existing at and after the receipt of the report.  In the result, his Honour found that the matter was "close to the borderline", but he concluded that the Minister had not considered the representations.  A matter that appears to have carried weight with his Honour, in the final analysis of the
evidence, was that the Minister could have given evidence to clarify this issue but refrained from doing so.  The only relevant sworn evidence put forward by the Minister was that given by his senior adviser, Mr McLaughlin.  The s13 reasons appear also to have been treated by the parties as putting forward a statement of fact.

                   In argument, Mr Willheim pointed out that the original ground for review was, in general terms, that the Minister had failed to take into account relevant considerations.  Particulars later provided of that allegation were to the effect that the Minister failed to give "proper consideration" to both the report and the representations.  One can appreciate that there may have been some confusion as to whether statutory non-compliance was relied upon and that this might have led to an under-estimation of the importance of the issue, at least at an early stage.  But the matter was clarified during and after the cross-examination of Mr McLaughlin.  Mr McLaughlin was asked a series of questions in that cross-examination, without objection, concerning what the Minister had done with the representations and what opportunity existed for him to read them.  On the following day, in discussions between Counsel and his Honour, questions said to be raised by the evidence were canvassed.  Amongst the matters discussed was the fact that the Minister had apparently chosen not to clarify what he had in fact done, and it was ultimately conceded during argument on this appeal that the question whether further evidence was then necessary was one to which the parties' minds were directed.  The proceedings were then adjourned for a few weeks.  On their resumption, no further evidence was called for the Minister.  Rather, in submissions later made on his behalf, reliance was placed on Mr McLaughlin's evidence as to the Minister's practice of reading
everything, and on evidence as to Mr McLaughlin having read the representations on the Minister's behalf.  The latter proposition is not correct in law.  Whilst it may be possible for a Minister to have the contents of representations conveyed to him (cf Tickner v Chapman 464-5, 476-7, 494;  Norvill v Chapman, 240-1, 251, 268), there was no evidence here that they were the subject of any discussion with Mr McLaughlin, and no summary of them had been prepared for the Minister.  The first proposition, as to the Minister's practice, could not be conclusive nor, given other factors, particularly reliable.  His Honour, in the absence of further evidence, concluded that greater reliance could then be placed upon other inferences which could be drawn from the evidence and which supported the contention urged on behalf of Mr and Mrs Douglas that he had not considered them.  His Honour, although not expressly referring to it, applied the rule of evidence in Jones v Dunkel (1959) 101 CLR 298.  It has been applied in applications for judicial review:  see eg Lebanese Moslem Association v The Minister for Immigration and Ethnic Affairs (1986) 67 ALR 195, 200; ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 205;  Citibank Limited v Federal Commissioner of Taxation 88 ATC 4,714; 4,728;  Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported decision of Hill J, 12 December 1989) and Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1994) 34 ALD 169, 178.  In the Lebanese Moslem Association case Pincus J said (199-200):

                   "The respondent did not give evidence.  His senior counsel argued with, as it seems to me, some cogency that performance of his Ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions.  It may be thought that the argument just mentioned justifies a departure from the ordinary principle laid down in Jones
v Dunkel ... as to the results of failing to give evidence.  On the other hand, in the absence of their author, it is hard to resist drawing from the notes just quoted two inferences which may assist the applicants ..."

The application of the rule requires, as the passage from Pincus J's judgment discloses, that there be inferences available from the evidence which favour the other party.  The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts:  Jones v Dunkel, 308.  The question then is what inferences were open on the evidence.

                   Mr McLaughlin was unable to say from his knowledge whether the Minister had read the representations.  The evidence disclosed that a copy of the report was sent by facsimile transmission to the home of the Minister on the evening of 31 March 1994, and the original report, together with the representations, was collected by Mr McLaughlin on the following day, Good Friday, and placed in the Minister's office.  Mr McLaughlin read them from 1 April "through to 5 April", but not on Sunday 4 April.  The representations were voluminous, being contained in five lever arch files.  There was no evidence as to the Minister's whereabouts until at least 5 April when, it appears to have been assumed, he was in his office, available to attend to correspondence with the parties.

                   As a step in the resolution of the question whether the Minister had read the representations, his Honour looked to those parts of the s13 reasons we have set out above.  On one view these reasons might be taken to assert that the Minister had
considered the representations.  This, in the absence of assistance from his staff, would mean that he had actually read them.  But, as his Honour found, Mr McLaughlin's evidence showed that one could not place any weight on the s13 reasons, for he had said:

                   "I think the section 13 statement was generated on the basis of - this is material that the Minister has seen at some stage in his consideration of the decision.  But not all of that material would have been physically in front of him in the period immediately up to 6 April."

His Honour also observed that the Minister had little opportunity or time in fact to have undertaken what was a large task, one which had occupied Mr McLaughlin for most of the Easter period. 

                   Of the other factors which Carr J referred to, it was submitted that his Honour was in error as regards one, and accorded too much weight to another.  His Honour referred to the fact that "the Chaney report was separated from the representations and forwarded separately both by fax and courier to the Commonwealth Minister".  The evidence of Mr McLaughlin was that a copy had been sent by facsimile on 31 March, but not that the original was also sent direct to the Minister without the representations.  The original was not separated from the representations, and was received by Mr McLaughlin and conveyed to the Minister's office.  His Honour did not say what he drew from the fact, as he understood it, that the representations had been separated from the report, although it may be that he understood it to bear upon the likelihood of the representations being read.  But what the evidence did in any event disclose was that the Minister did not himself ever receive the representations, and there was no evidence which placed the Minister where they were located.  His Honour also placed some reliance upon what he
saw as the "very careful manner" in which Mr McLaughlin, in his affidavit, distinguished between the Minister having made the first emergency declaration "after having received and considered the material described above" and the Minister simply having "made his decision" to make the final declaration.  It was submitted that all that could be gleaned from this is that Mr McLaughlin was unable, with respect to the latter occasion, to say what the Minister had done, for, as he explained in oral evidence, he simply did not know. 

     If that is all which can fairly be drawn from the language chosen by the witness, what then was the state of the evidence?  It showed that there was a task which would take some days to complete, and that there were available only a few days, if that, for the Minister to do so.  His adviser had been working on the one set of the representations over Easter, and there was nothing to indicate the Minister was in his office, where the representations were located, until 5 April, the day before the declaration was made.  There was no discussion with the adviser who had read them, and no other apparent means by which the Minister could have informed himself of their content.  In these circumstances, a conclusion that the Minister most likely did not have access to the representations, and had no time to consider them was open.  The critical factor, it seems to us, which emerges from the evidence is the strong suggestion that the Minister simply had insufficient opportunity to read the representations.  And there was no cogent evidence to suggest otherwise.  The s13 reasons did not, given the evidence of Mr McLaughlin, deserve any weight.  The conclusion for which Mr and Mrs Douglas  contended was persuasively open.  That the Minister had insufficient time and did not
read the representations gained further support from his failure to adduce further evidence.  His Honour was in our view correct in holding that there had not been the necessary consideration of the representations.

Conclusion

                   His Honour ordered that the decision of the Commonwealth Minister made on 6 August 1994 be set aside.  That is clearly the course which must follow the failure to comply with the requirements of procedural fairness and the requirement of s10(1)(c) of the Commonwealth Heritage Act that the representations be considered.  His Honour postponed the effect of that order to allow time for the State and Mr and Mrs Douglas to make representations and for a decision to be made whilst the land remained undisturbed.  The parties are now familiar with the materials, save perhaps for the contents of Dr Sullivan's report, which ought to be provided.  No doubt arrangements to preserve any confidentiality properly claimed for it will be made as, of course, they should be.  On a similar basis we would hold that whilst the appeals should be dismissed with costs, his Honour's order should now be varied so that the order setting aside the Minister's decision should take effect six weeks from the date of this judgment.  It is not necessary to deal with the arguments of counsel for the State in support of the notice of contention.

                   I certify that this and the preceding forty three pages are a true copy of the reasons of the Court.

                   Associate

                   Date:

WAG 18 of 1995

Counsel and Solicitors for

the appellant:                                                         Mr E W Willheim and Mr K J Martin instructed by Australian Government Solicitor

Counsel and Solicitors

for the first respondents:                     Ms C A Wheeler QC and Mr K M Pettit instructed by Crown Solicitor for the State of Western Australia

WAG 19 of 1995

Counsel and Solicitors for

the appellant:                                                         Mr E W Willheim and Mr K J Martin instructed by Australian Government Solicitor

Counsel and Solicitors

for the first respondents:                     Mr C P Stevenson instructed by Mallesons Stephen Jaques

Date of Hearing:                                                 17 and 18 July 1995

Place of Hearing                                                 Perth

Date of Judgment:                                              28 May 1996

Place of Judgment:                                             Melbourne