Minister for Aboriginal Affairs v Peko-Wallsend Ltd

162 CLR 24
66 ALR 299

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(Judgment by: Mason J)

Between: Minister for Aboriginal Affairs
And: Peko-Wallsend Ltd

Court:

Judges: Gibbs CJ

Mason JBrennan J
Deane J
Dawson J

Hearing date: 29 November 1985
Judgment date: 31 July 1986

Canberra

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Judgment by:
Mason J

This is an appeal from a decision of the Full Court of the Federal Court allowing an appeal from a judgment of Beaumont J. at first instance. It raises questions of administrative law arising from the interpretation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"). Certain provisions of the Act have been previously considered by this Court in Re Toohey; Ex parte Meneling Station Pty Ltd ("Meneling Station") (1982) 57 ALJR 59; 44 ALR 63 . The purpose of the Act, as described in its long title, is to provide, inter alia, for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals. To this end, the Act provides in s 50(1)(a) for the Aboriginal Land Commissioner ("the Commissioner"), on an application by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, to ascertain whether those or any other Aboriginals are the traditional Aboriginal owners of the land, to report his findings to the Minister and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of it in accordance with ss 11 and 12. The last two mentioned sections provide the machinery by which the grant of land may be made to a Land Trust established under the Act for the purpose of holding title to the land. Section 11, as it stood at the relevant time, reads as follows:

"11(1)

Where-

(a)

the Commissioner has, before the commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and

(b)

the Minister is satisfied-

(i)

that the land, or a part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or

(ii)

that different parts of the land should be granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are the relevant Aboriginals in relation to that last-mentioned land, the Minister shall -

(c)

establish-

(i)

in a case where he is satisfied that the land, or a part of the land, should be granted to a single Land Trust - a single Land Trust under section 4 to hold that land, or that part of that land, for the benefit of Aboriginals who are the relevant Aboriginals in relation to the land, or the part of the land, proposed to be held by that Land Trust; or

(ii)

in a case where he is satisfied that different parts of the land should be granted to different Land Trusts - 2 or more Land Trusts under section 4 respectively to hold those different parts of that land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the parts of the land respectively proposed to be held by each of those Land Trusts;

(d)

where land in respect of which a Land Trust has been or is proposed to be established in accordance with paragraph (c) is, or includes, alienated Crown land, ensure that the estates and interests in that land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and

(e)

after any acquisition referred to in paragraph (d) has been effected in relation to land and a Land Trust has been established in accordance with paragraph (c) in respect of that land, recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust."

In summary then, where the Commissioner has made a report under s 50(1)(a) recommending a grant of land and the Minister is satisfied that the grant should be made, the Minister must recommend to the Governor-General that the land be granted to the Land Trust. Section 12(1)(a) empowers the Governor-General to execute a deed of grant of an estate in the land in accordance with the Minister's recommendation.

The respondents to this appeal, who at first instance were the applicants for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), contend that a decision made by the Minister for Aboriginal Affairs on 15 March 1983 that certain land be granted to a Land Trust to be held for the benefit of the Mirarr Kundjey'mi people was an improper exercise of the power conferred on him by s 11 of the Act in that he failed to take into account a relevant consideration in making his decision, namely the extent to which the respondents would be detrimentally affected by the grant.

In 1967, the third and fourth respondents began exploring for minerals as joint venturers in the Alligator Rivers region of the Northern Territory, pursuant to exploration licences granted to them. The exploration involved the expenditure of large sums of money but by 1976 had revealed an extensive uranium deposit in a mineralized body known as Ranger 68. That deposit was valued at some $280 million and occupies the eastern corner of an area called the Barote block, which is roughly triangular in shape with its apex pointing toward the south. In 1976 applications were made for mineral leases over a number of areas in the region, including the Barote block, but consideration of the applications was not completed before the Act was passed in that year.

In March 1978 the Northern Land Council made applications under the Act on behalf of Aboriginals claiming to have traditional land claims in the region of the Alligator Rivers. Two Aboriginal groups made claims over land encompassed by the Barote block: the Dadjbaku clan and the Mirarr Kundjey'mi clan. The Commissioner conducted an inquiry into these claims from October 1980 to March 1981 and concluded that only the latter could be sustained. He recommended to the Minister that specified land be granted to a Land Trust for the benefit of the Mirarr Kundjey'mi people. The land the subject of the recommendation included 10% of the Barote block, being the eastern corner which, as events subsequently revealed, contained the entire Ranger 68 deposit. The remaining 90% fell in the Dadjbaku land not recommended for grant.

The Commissioner also investigated the detriment that might result to the third and fourth respondents if his recommendation were to be implemented. This he was bound to do under s 50(3)(b) of the Act, which provides that in his report the Commissioner shall comment on the detriment to persons or communities that might result if the land claim were acceded to in whole or part. It is apparent from the report that the Commissioner was unaware of the precise location of Ranger 68, other than that it lay in the Barote block, only 10% of which fell within the land recommended for grant (see pars.299, 302 and 320). These findings reflected the evidence given to the Commissioner by Mr Elliston, a director of the first respondent, which in the opinion of the Full Court was vague, inaccurate and misleading. Mr Elliston had said, in reference to the Barote block:

"There were two mineralised prospects in that (area) - Ranger 4 and Ranger 68 are the significant ones. Ranger 5 also occurs within it. Ranger 4 is to the southern extremity of it and Ranger 68 is in the centre of it."

As I have already mentioned, Ranger 68 is in fact in the extreme eastern corner of the Barote block. In subsequent representations to the Minister, to which further reference will be made, the respondents stated that, for various reasons, they did not specify the precise location of Ranger 68 in their evidence to the Commissioner. One reason given was the commercial sensitivity of that information, but a further explanation may well be that the imprecision in identifying the location of Ranger 68 supported a submission made by the respondents, both to the Commissioner and later to the Minister, that the whole of the Barote block be excised from any land recommended for grant.

The ultimate recommendation of the Commissioner gave the location of Ranger 68 an importance which the respondents had perhaps failed to appreciate at the time of the inquiry. Had the Commissioner been made aware that such a valuable uranium deposit lay wholly within the area recommended for grant, he may have phrased his comments on the respondents' detriment in stronger terms. Following the publication of the Commissioner's report in July 1981, the respondents made a series of submissions to the Minister which it is necessary to recount in some detail. By letter dated 25 September 1981 the Managing Director of the fourth respondent wrote to the then Minister for Aboriginal Affairs, Senator Baume, informing him that Ranger 68 was in fact wholly situated within the area recommended for grant and that the Commissioner's report had accordingly understated the detriment to the respondents. The first respondent had previously sent a letter in similar terms. The Minister replied on 6 October acknowledging these submissions and stating that they would be taken into account when making a decision on the land claim. On 8 March 1982 the Minister announced his decision to make the land grants recommended by the Commissioner, with the exception of land in respect of which the respondents had outstanding applications for mineral leases. A decision on those areas, which included the Barote block, was deferred. In December 1982 Mr Wilson replaced Senator Baume as the Minister for Aboriginal Affairs, whereupon the respondents wrote to him to inform him that representations had already been made to his predecessor, and to request that a meeting be arranged to discuss the land claims. In his reply of 1 February 1983 Mr Wilson stated that the Commissioner's report included detailed comments on the question of detriment and that in the circumstances a meeting was unnecessary. Following the defeat of the government at a general election, Mr Holding took office on 11 March 1983 as the new Minister for Aboriginal Affairs. On 15 March he decided to recommend that a land grant be made to a Land Trust for the benefit of the Mirarr Kundjey'mi people in respect of the claims on which a decision had been deferred in the previous year.

In making this decision the Minister had before him the Commissioner's report, which included the comments on detriment, and a brief prepared by his departmental officers entitled "Northern Territory Land Claims Awaiting Decisions". The brief included a table listing the outstanding land claims, summarizing the Commissioner's comments on detriment, and stating what action was recommended by the Department. The summary of detriment in relation to the Alligator Rivers claim was as follows:

"Potential detriment to Peko-EZ who have applied for a number of mineral leases, some of which will be subject to Aboriginal veto and all of which will require negotiation of an agreement with the Northern Land Council."

There was no reference to the submissions made by the respondents to Senator Baume and Mr Wilson after publication of the Commissioner's report and it would appear that the Minister was in fact unaware of them. The Minister does not claim to have considered these submissions. Nor were they produced in response to subpoenas directed to the Minister and his Department requiring the production of all documents that the Minister considered or to which he referred in making his decision. The trial judge drew the inference that the representations were not taken into account, and it is safe for me to proceed on the same basis.

The respondents commenced proceedings in the Federal Court for judicial review of the Minister's decision under the ADJR Act. The ground of review was that, in failing to consider the representations made by the respondents to Senator Baume and Mr Wilson, the Minister failed to take a relevant consideration into account and that consequently the decision was an improper exercise of the power conferred by the Act. At first instance Beaumont J. held that the Minister was not obliged to take into account the respondents' additional submissions on detriment and accordingly the decision could not be impugned. It was therefore unnecessary to consider the further question whether the Court should, in the exercise of the discretion conferred by s 16(1) of the ADJR Act, refuse to make the orders sought because the respondents' difficulties were brought about by their own conduct in failing to disclose the location of Ranger 68 to the Commissioner.

On appeal, a majority of the Full Court of the Federal Court (Bowen C.J. and Sheppard J.; Wilcox J. dissenting) reversed the decision. Their Honours were unanimous in the view that the Minister was obliged to consider the additional material supplied by the respondents and that his failure to do so constituted an improper exercise of the power conferred on him by s 11 of the Act, but divided on whether relief should be refused on discretionary grounds. The majority held that the respondents' failure to reveal the precise location of Ranger 68 was a tactical error rather than blameworthy conduct and that they should not be denied relief because of it. Wilcox J. held to the contrary.

Two questions now arise in the proceedings before this Court. The first is whether the Minister was bound, in making his decision pursuant to s 11, to have regard to the respondents' submissions, so that his failure to do so amounted to a failure to take into account a consideration relevant to the exercise of the power. The second question, which only arises if the first is answered in the affirmative, is whether relief should have been refused on discretionary grounds.

During argument, counsel for the Minister sought to raise an additional point, the effect of which was to deny that the Minister had failed to take into account the respondents' submissions. It was argued that where submissions are made to a Minister and summarized by his departmental officers in a way that omits certain details, and the Minister then makes a decision on the basis of that summary, it cannot be said that the Minister has failed to take those omitted details into account. He is entitled to delegate to his staff the function of deciding what weight, if any, should be given to a particular fact, and in the present case there was no evidence that the departmental officers had failed to consider those facts.

This submission, which was neither raised in the courts below nor listed as a ground of appeal in the Notice of Appeal to this Court, proceeds on the assumption that the Minister had power to delegate part of his decision-making function under s 11 to his Department and that he exercised this power by splitting the function, leaving his staff to decide what facts or matters would be taken into account. Section 76(1) of the Act authorizes the Minister, by an instrument of delegation signed by him, to delegate to a person any of his powers under the Act, other than those in Pt IV and the power of delegation. A power, when so delegated and exercised by the delegate, shall, for the purposes of the Act, be deemed to have been exercised by the Minister (s 76(2)). The Act contains no other express power of delegation. The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others. By way of illustration there are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his Department (Carltona Ltd v. Commissioners of Works [1943] 2 All ER 560 , at p 563; In re Golden Chemical Products Ltd (1976) Ch 300). This principle partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally (O'Reilly v. State Bank of Victoria Commissioners (1983) 153 CLR 1 , at p 11). The principle was applied in that case to the power given to the Commissioner of Taxation by Income Tax Assessment Act 1936 (Cth) to issue a notice requiring a person to furnish information, attend and give evidence, and produce documents, notwithstanding that the Commissioner had an express statutory power of delegation which he did not exercise in favour of the person who in fact issued the notice. The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.

However, there is nothing in the nature, scope and purpose of the power conferred by s 11, or in the context in which it is to be found, that makes it susceptible to this treatment. The Minister's function under the section is a central feature of the statutory scheme. Exercise of the power has important consequences, not only for the Aboriginals who will benefit from a grant of land to a Land Trust, but for others who may suffer detriment by reason of interference with their interests as a result of land being so granted. The importance of the Minister's function is evidenced by the preliminary procedures for which the Act makes provision - the holding of an inquiry under s 50 by the Commissioner, who is a Judge of the Supreme Court of the Northern Territory, and the making by him of a report to the Minister which, if the power under s 11 is to be exercised, must contain a recommendation that land should be granted to a Land Trust for the benefit of Aboriginals. And finally there is the requirement in that the land or part of it should be granted to a Land Trust or Land Trusts. These matters combine to compel the conclusion that the Minister's function under s 11 is to be exercised by him personally unless he delegates it pursuant to s 76.

There is no evidence that the Minister delegated his decision-making function under s 76 or otherwise. And in any event the appellants should not be permitted to raise for the first time in this Court an argument which, if raised at first instance, might have been answered by evidence. Accordingly, the submission must be rejected.

(1) FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a)

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 , at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 , at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider."

(b)

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 , at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746 , at pp 757-758, and Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492 , at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

(c)

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal [1959] AC 663 , at p 693; Hanks v. Minister of Housing and Local Government [1963] 1 QB 999 , at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761 , at pp 769-770).

(d)

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p 228).

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 , at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499 , at p 507; [1976] 2 All ER 781 , at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable." This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp 230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the ADJR Act in these terms.

The test has been embraced in both Australia and England (Parramatta City Council v. Pestell (1972) 128 CLR 305 , at p 327; Bread Manufacturers of NSW v. Evans (1981) 56 ALJR 89, at p 96; 38 ALR 93 , at p 106; Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR 697; 41 ALR 221 , at pp 221-222; Hall & Co. Ltd v. Shoreham-By-Sea Urban District Council (1964) 1 W.L.R. 240 , at pp 248, 255; (1964) 1 All E.R. 1, at pp.8, 13; Reg. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd (1974) QB 720, at pp 731-732; Newbury District Council v. Secretary of State for the Environment [1981] AC 578 , at pp 599-600, 608). However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied (compare, for example, Wednesbury Corporation, at p 230, and Parramatta City Council, at p 328, with the conclusions reached in South Oxfordshire District Council v. Secretary of State for the Environment (1981) 1 WLR 1092 , at p 1099; [1981] 1 All ER 954 , at p 960; Shoreham-By-Sea Urban District Council, and Minister of Housing and Local Government v. Hartnell [1965] AC 1134 , at p 1173). But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice (Lovell v. Lovell (1950) 81 CLR 513 , at p 519; Gronow v. Gronow (1979) 144 CLR 513 , at pp 519-520, 534, 537-538; Mallet v. Mallet (1984) 58 ALJR 248, at pp 252, 255; 52 ALR 193 , at pp 200-201, 206-207). So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

(e)

The principles stated above apply to an administrative decision made by a Minister of the Crown (Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 CLR 1 ; Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552; 25 ALR 497 ; Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 ; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014 ). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

In the present case, the respondents submit that the Minister, in failing to consider the submissions which they had made to his predecessors, neglected to take into account a consideration which he was bound to take into account in making his decision. It is convenient to divide this central issue into two separate, but related, questions. The first is whether the Minister is bound to take into account the comments on detriment which the Commissioner is required by s 50(3)(b) of the Act to include in his report to the Minister. The second is whether he is also bound, as opposed to merely entitled, to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment.

In Meneling Station this Court considered the nature of the Commissioner's obligations under s 50(3) of the Act. That subsection provides that, in making a report to the Minister, the Commissioner "shall have regard" to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and "shall comment" on each of four matters, the second of which is "(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part". The Court held by majority (Gibbs C.J., Murphy, Wilson and Brennan JJ.; Mason J. dissenting) that the Commissioner was not bound to have regard to the matters listed in s 50(3)(a)-(d) or to give them weight in deciding whether to recommend a grant of land. These were matters on which he need only "comment" in his report, leaving the resolution of competing interests to the Minister. Although not strictly necessary for the purposes of the decision, the majority also considered whether the Commissioner was entitled to take into account the matters in s 50(3)(a)-(d), even if not bound to do so. Murphy, Wilson and Brennan JJ. held (at pp.65-66, 67 and 72; pp 77, 80 and 91 of ALR) that he was not entitled to have regard to these matters. The Chief Justice expressed no opinion. The relevant point to be drawn from the case is that, because the Commissioner is neither bound nor entitled to have regard to detriment in making his recommendation, the respondents' only opportunity to have the detriment to them taken into account is at the stage when the Minister is considering whether he is satisfied that the land grant should be made.

In Meneling Station only two members of the Court referred to the Minister's obligations under s 11 of the Act. Gibbs C.J. said, at p 61; p 67 of ALR, that:

"The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in pars.(a) to (d), including the detrimental effect of acceding to the claims." (emphasis added)

On the other hand Brennan J. said, at p 72; p 91 of ALR:

"The Minister's recommendation is not a mere affirmation or rejection of the recommendation made by the Commissioner. The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owners' needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to in pars.(a) to (d) of s 50(3)." (emphasis added)

The Act does not expressly state that the Minister is bound to take into account the Commissioner's comments on the matters in pars.(a) to (d) of s 50(3) in exercising his power under s 11(1)(b) to decide whether or not he is satisfied that a land grant should be made. But a consideration of the subject matter, scope and purpose of the Act indicates that such a finding is necessarily implied by the statute. The factor that leads irresistibly to this conclusion is the specific requirement in s 50(3) that the Commissioner comment in his report on each of the four matters enumerated in the subsection, including of course detriment. That provision recognizes that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister should not overlook crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision under s 11(1)(b). Accordingly, it provided the means whereby such factors would be analysed and drawn to his attention for the purpose of having them taken into account. That purpose would not be achieved if the Minister was merely entitled, but not bound, to consider these factors. Furthermore, this Court's decision in Meneling Station, by removing from the Commissioner both the obligation and the entitlement to reflect in his recommendation to the Minister any question of detriment, has the result that the Minister is the sole forum in which these matters may be taken into account. A finding that the Minister is not required to take into account the matters in s 50(3)(a)-(d) would deny the respondents the opportunity of compelling a consideration of the detriment that may be occasioned by the granting of land to a Land Trust. For the reasons already given, such an interpretation of the Act cannot be accepted.

The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy. The granting of land to a Land Trust for the benefit of Aboriginals is a decision of this nature because an Aboriginal Land Council established under the Act has power to refuse to grant a mining interest over Aboriginal Land (s 40), or to grant it on such terms and conditions as to payment or otherwise as are provided for by agreement (s 43). When the Act specifically provides for the Commissioner to comment on the manner in which persons may be adversely affected by the making of a land grant, and provides the means whereby those comments are brought to the Minister's attention, there may readily be found in the subject matter, scope and purpose of the Act an implication that the Minister is bound to take resultant detriment into account when making his decision. There is no sound reason for confining that obligation to a consideration of the comments in the report; matters put to the Minister by interested parties correcting, updating or elucidating the Commissioner's comments can be of no less relevance.

Although it was not argued in the present case that the failure to consider the respondents' submissions amounted to a denial of natural justice, the foregoing reasoning conforms to the principles of natural justice, on the assumption that they are applicable. No doubt those principles would also require a Minister who has received additional submissions from one party, before acting on them, to afford other interested parties an opportunity to answer them. But this does not negate the proposition that the Minister is bound to consider submissions put to him by parties who may be adversely affected by a decision. Moreover, the argument lends no assistance to the appellants in a case such as this where the submissions made to the Minister relate to the explication of an undisputed question of fact. An opportunity to reply, had it been afforded to other interested parties, could not have affected in any way the fact that Ranger 68 lay wholly within the land recommended for grant.

For these reasons, and the further reason that it cannot be said that the omitted factor was so insignificant that the failure to take it into account could not have materially affected the decision, I conclude that the Minister was bound to consider the submissions made by the respondents to his predecessors in office.

The appellants opposed this conclusion on the basis that the Act, as interpreted in Meneling Station, creates a division of functions between the Commissioner on the one hand, who is given the judicial or quasi-judicial apparatus to conduct a fact-finding inquiry, and the Minister on the other, who is required to consider the Commissioner's report and decide whether a land grant should be made. They say that it cannot be inferred that the Minister is obliged to engage in a further fact-finding exercise, which is a function more appropriately performed by the Commissioner. The answer to this submission is that the Minister is obliged only to take into account additional submissions that have been made to him. He is not required to initiate an independent inquiry to verify the accuracy of the Commissioner's findings or to update them. Nor will he always be required to investigate whether submissions put to him by an interested party have a sound foundation in fact, because he might be of the opinion that, even if true, the submissions would not affect his decision, and, of course, questions of weight will generally be for the Minister alone.

The appellants further submitted that there are great practical difficulties in requiring the Minister to consider every submission made to him on a matter that touches or concerns the making of a land grant. But the strength of this submission vanishes once it is realized that the Minister may expressly delegate his powers under the Act (s 76) and may refer matters to the Commissioner for his consideration (s 50(1)(d)).

(2) DISCRETION

The finding that the Minister failed to take into account a consideration which he was bound to take into account makes it necessary to consider the further question whether the relief sought should have been refused on discretionary grounds. The appellants submit that the respondents should have been refused relief because it was their own conduct in withholding from the Commissioner information about the precise location of Ranger 68 that is the source of their present complaint. It will be recalled that the opinion of the primary judge on the principal issue under appeal made it unnecessary for him to express a conclusion on the question of discretion. His Honour did state, however, that if the failure to identify the location of Ranger 68 arose as a result of a deliberate decision by the respondents, such a circumstance "could conceivably be seen as decisive against the exercise of the powers given by (s 16 of the ADJR Act)". On appeal, the Full Court of the Federal Court held, by majority, that the circumstances of the case did not warrant refusing relief on discretionary grounds. The respondents had not set out deliberately to mislead the Commissioner. The course they adopted in giving evidence to the Commissioner revealed no more than mistake or carelessness in the presentation of their case.

The question must be answered by reference to the principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion. These principles are not in doubt. They were authoritatively enunciated in House v. The King (1936) 55 CLR 499 , at pp 504-505, in terms which have been frequently applied by this Court, most recently in Norbis v. Norbis (1986) 60 ALJR 335; 65 ALR 12 .

The appellants contend that these principles do not apply to a case such as the present in which the discretion is initially exercised by an appellate court and review of that discretionary judgment is sought in a further appellate court. The reason, in their submission, is that the latter court is in as advantageous a position as the former to assess the evidence and exercise the discretion. The case can thus be distinguished from the usual case in which the discretion is exercised by a trial judge who has the benefit of hearing and observing the witnesses. I am unable to agree with this submission. The rules governing appellate review of a discretionary judgment are only partly founded on the opportunity of the judge who first exercises the discretion to assess the evidence at first hand. More fundamentally, they are grounded in the view that it would not be right to overturn a judicial decision solely on the basis of the appellate court's mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, the decision of the judge first exercising the discretion falls within a reasonable range, and no error on his part can be shown.

The decision of the majority of the Full Court of the Federal Court that the circumstances of the case did not justify refusing the respondents relief on discretionary grounds was one which was well open to them on the facts. In my opinion it has not been shown, nor indeed was it even submitted, that in coming to that conclusion the Full Court committed some error which vitiated its decision. The appellants' argument can be put no higher than an assertion that the Full Court should have reached a different result.

I would dismiss the appeal.