Minister for Aboriginal Affairs v Peko-Wallsend Ltd
162 CLR 2466 ALR 299
(Judgment by: Gibbs CJ)
Between: Minister for Aboriginal Affairs
And: Peko-Wallsend Ltd
Judges:
Gibbs CJMason J
Brennan J
Deane J
Dawson J
Judgment date: 31 July 1986
Canberra
Judgment by:
Gibbs CJ
I have had the advantage of reading the reasons prepared by Mason J. and am in general agreement with them. I need add only a few remarks.
For the reasons given by Mason J., the Minister, in deciding whether he is satisfied for the purposes of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Act") that land should be granted to a Land Trust to be held for the benefit of Aboriginals, is bound to take into account the matters mentioned in s 50(3) of the Act, which include 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. In many, if not in most, cases the Minister, in considering those matters, will not need to go beyond the report of the Commissioner. However, if there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner's comments were based on an erroneous view of the facts, the Minister is bound to take that material into account. The duty of the Minister is to consider the matters mentioned in s 50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s 11(1)(b), and not on a false assumption (whether the falsity is due to a change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s 50(3). If this were not so the Minister would in some cases be obliged to reach a conclusion that would be absurd or unjust, because its basis in fact was totally unsound. The injustice might, as Wilcox J. pointed out in the Federal Court, cut either way; sometimes the error of fact might favour the Aboriginal claimants and sometimes it might work against them. It does not follow that the Minister is bound to consider every argumentative submission made to him after the Commissioner has furnished his report; in the present case we are concerned only with material which reveals that the comments in the report were based on an erroneous view of the facts. I need hardly add that the error in the Commissioner's report in the present case was due, not to any fault of the Commissioner himself, but to the manner in which the respondents presented their case.
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
In the present case the correspondence in the possession of the Department revealed the material fact that Ranger 68 was within the land recommended to be granted, contrary to the view on which the Commissioner had acted. The circumstance that the correspondence had been addressed to a predecessor in office of the Minister was quite irrelevant, since the letters were not personal, but were among the departmental papers. The material in the possession of the Department must clearly be treated as being in the possession of the Minister: see Daganayasi v. Minister of Immigration (1980) 2 NZLR 130, at p 148. The summary prepared by the officers in the present case made no mention at all of the facts that the Commissioner was under a misapprehension, and that Ranger 68 was within the area recommended to be granted, and the conclusion of the Federal Court that the Minister did not consider these facts cannot be challenged. The Federal Court therefore rightly concluded that the Minister's power under s 11(1) of the Act was not validly exercised.
The learned trial judge in the Federal Court found for the Minister on grounds which did not require him to exercise his discretion under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended. The Full Court of the Federal Court, which unanimously took a different view of the substantive question whether the Minister's decision was reached in accordance with law, was therefore called on for the first time to decide whether in its discretion relief should be refused notwithstanding that the conditions for the grant of relief had been satisfied. This appeal is brought from an original exercise of discretion and the case is not one in which we are called on to consider whether the Full Court misconceived its appellate function in interfering with a discretion already exercised by a primary judge. The ordinary principles which govern the manner in which an appellate court should deal with an appeal from an exercise of a judicial discretion will apply. I agree that in accordance with those principles no ground has been shown for disturbing the judgment.
It would seem, on principle, that if the Minister had been minded to give consideration to the facts stated in the correspondence from the respondents, he should first have given the Northern Land Council a fair opportunity to place before him its comments on that correspondence. That question was not fully discussed in argument before us, and is academic because the Minister did not consider the facts stated in the correspondence. Accordingly, I do not mention it further, although I should add that it does not now seem to be in contest that Ranger 68 is within the area recommended to be granted.
I agree that the appeal should be dismissed.