Minister for Aboriginal Affairs v Peko-Wallsend Ltd

162 CLR 24
66 ALR 299

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(Judgment by: Brennan J)

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

Court:

Judges: Gibbs CJ
Mason J

Brennan JDeane J
Dawson J

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

Canberra

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Judgment by:
Brennan J

On 2 July 1981, in accordance with Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"), the Aboriginal Land Commissioner (Toohey J.) presented his report on the Alligator Rivers Stage II land claim to the Minister for Aboriginal Affairs and the Administrator of the Northern Territory. Among the areas under claim were two contiguous tracts of land lying between the East Alligator and South Alligator Rivers identified respectively as Dadjbaku and Mirarr Kundjey'mi. Dadjbaku lies to the west of Mirarr Kundjey'mi, and the boundary between them is straddled by an area, known as the Barote area, which contains deposits of uranium. The respondents held applications for mining leases in the Barote area. The respondents were represented by counsel before the Commissioner and called evidence on the hearing of the land claims. The Commissioner found, in accordance with s 50(1)(a) of the Act, that there were traditional Aboriginal owners (whom he identified) of certain areas of unalienated Crown land under claim. He made a recommendation that those areas, including Mirarr Kundjey'mi, be granted to a Land Trust. The Commissioner did not find that there were traditional owners of the area of land identified as Dadjbaku, and he made no recommendation for the grant of that land. Pursuant to pars.(b) and (c) of s 50(3) of the Act, the Commissioner commented on the detriment that might result to the respondents if the land claim were acceded to and the effect which acceding to the claim would have on the proposed patterns of land usage (see pars.296 to 321 of the report). After tracing the history of their exploration activity in the Alligator Rivers area as disclosed by the evidence of Mr Elliston, a director of Peko-Wallsend Limited, and a written submission tendered by the respondents, the Commissioner noted (par.299) that-

"The first successful result of the exploration program was the discovery of significant uranium mineralisation at Ranger 1 in 1970. That is outside the claim area. Other promising discoveries were later made, including Ranger 68 in 1976. This lies in the Barote areas marked on Exhibit 82, '90% in Dadjbaku. The balance of the northern extremity is in Mirarr Kundjey'mi' (Mr Elliston)." (Underlining added.)

The words attributed to Mr Elliston are quoted precisely from his evidence, though it seems that it was the eastern, not the northern extremity of the Barote area that lay in Mirarr Kundjey'mi. The balance of Mr Elliston's evidence before the Commissioner about the position of Ranger 68 reads as follows:

"Is that the area that is Ranger 68?---Yes. There were two mineralised prospects in that (the Barote 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. In fact the mineralised belt comes right through from the Pancon border which was its eastern margin and it disappears to the north-west on this other side. The precise delineation of Ranger 68 at this present time is confidential to the company, is it not?---I have made a statement about it in the appendix. It is not entirely confidential. The companies have published the significant drilling results and I have indicated fairly fully for the commissioner's information the state of present information. What is not set out perhaps is the detail of the underlying geology within the large block of leases and we would regard that as confidential because it is the essential clue, if you like, to the continuance of seeking to develop a further mineral." (Underlining added.)

The Appendix which Mr Elliston mentioned did not reveal the position of Ranger 68. It was only subsequent to the publication of the Commissioner's report that the respondents were to disclose the true "state of present information", namely, that Ranger 68 is not "in the centre of" the Barote area at all, but that it lies just inside the western boundary of Mirarr Kundjey'mi - a location close to the north-eastern corner of the Barote area.

In a submission made to the Minister for Aboriginal Affairs in September 1981, the respondents said with reference to the Ranger 68 prospect:

" ... because Peko and EZ did not reveal the exact location of this prospect at the hearing, the Commissioner was only aware that it was within the Barote block of leases, 90% of which are on land unsuccessfully claimed by the Dadjbaku. The Commissioner was not specifically aware that Ranger 68 turned out to be just within the western boundary of land recommended for grant to the Mirarr Kundjey'mi and the qualification in paragraph 320 must be read accordingly. Ranger 68 has only been partially drilled and awaits complete delineation, but there would appear to be no doubt that in it Peko and EZ have discovered a major uranium orebody. ... Of all of Peko and EZ's indicated prospects within the total claim area, at this stage of development it would appear Ranger 68 is by far the most valuable."

The Commissioner reported that the respondents' submission to him disclosed that 530 uranium mineral lease applications over land in the Alligator Rivers Stage II land claim areas had been lodged and recommended by the Mining Warden and that none had been granted. He noted that:

"Most of these lie to the west of the land recommended in this report."

The report continued:

"302.

One further major mineralised body (Ranger 68) has been partially drilled and awaits complete delineation. Although only preliminary drilling results are available, Mr Elliston estimated that the Ranger 68 site may include ore at grades suggesting a minimum U3O8 content of about 5500 tonnes, worth, at current prices, some $280 million (Exhibit 81, para.14). While the precise position of Ranger 68 was not indicated, part of the Barote areas to which it belongs falls within Mirarr Kundjey'mi, land recommended for a grant. (Underlining added.)

303.

...

If the mineral leases are eventually granted, the first step will be to continue exploration to define the actual mineralisation and to reduce the areas presently under application; the leases marked are in blocks which 'are intended to cover mineral potential which as yet is rather poorly defined' (transcript, p 2227).

304.

Mr Elliston added: Even having regard to the enormous mineral potential of the area, the actual areas involved in mining and the mining facilities will not be very large ... I am sure further work will delineate the specific areas and leases of interest and many of the 530 leases will be surrendered. The applications were made just simply to preserve a sufficient area to properly conduct the search over the prospective horizons which had only been delineated in the broad (transcript, p 2235).

... 305.

The companies have spent over $6 million in exploration work under exploration licences and some hundreds of thousands of dollars on pending lease applications to preserve their continuing rights to the area (transcript, p 2227)."

The respondents submitted to the Commissioner that the areas in which they held leases or applications for leases should be excluded from any grant of land to an Aboriginal Land Trust "so that further exploration and delineation of mineral resources be continued". The Commissioner commented:

"317.

It is true that much money and effort has been expended by Peko E-Z in exploring the region, money which Mr Elliston stressed was working capital and not risk capital, and that at the outset of its exploration work in the area the land was alienated Crown land held under pastoral lease. The work which was done apparently conformed to all the statutory requirements and the companies had a reasonable expectation that, in the ordinary course of events, mining leases and Commonwealth authority would be given for uranium mining in the area. Even if permission to mine were granted forthwith, mining would not commence in under five years; however, there are proven deposits within those areas under mining lease application and good prospects of further discoveries so that the interests of Peko E-Z are more than merely speculative. While the existence of s 40 of the Land Rights Act is of itself not a detriment within s 50(3)(b), it is a potential source of detriment in the case of a miner who, as here, has incurred substantial expenditure in the reasonable expectation of obtaining mineral leases. It is not possible to be more precise, simply because it is not possible to predict the outcome of negotiations with the Land Council."

Section 40(1) of the Act provides that a mining interest in respect of Aboriginal land shall not be granted without the written consent of both the Minister and the Land Council for the area unless the Governor-General by Proclamation declares that the national interest requires the grant of the mining interest. The Commissioner commented on the detriment which the respondents might suffer in the construction of access roads to places in which they had interests. Then the Commissioner turned his attention to the respondents' submission on the effect of a grant on the proposed patterns of land usage in the region. He noted that it was assumed that the traditional Aboriginal owners would "veto the grant of further exploration or mining interests" and pointed out (par.319) that such an assumption -

"overlooks the possibility of negotiated agreements for mining and of a proclamation by the Governor-General declaring that the national interest requires that a grant of a mining interest be made (Land Rights Act s 40(1))."

After this wide-ranging consideration of the respondents' interests in the Alligator Rivers Stage II region, the Commissioner commented (par.320):

"Naturally, the Peko E-Z submissions were based on the possibility that all of the land claimed might become the subject of a grant to a Land Trust. In view of the recommendations in this report, most of the Barote block of mineral lease applications falls outside the land recommended for a grant as do any prospects further west. The prospects affected are those north of Jabiluka in Bunidj and those south of Jabiluka in Mirarr Kundjey'mi. All aspects of detriment must be qualified accordingly."

In par.321 the Commissioner summarized what he had said in the preceding paragraphs, the last two sub-paragraphs reading:

"(i)

The power of a Land Council to refuse consent to mining on Aboriginal land is not of itself a detriment within s 50(3)(b) of the Land Rights Act.

(j)

But the power is a potential source of detriment in so far as the companies have incurred substantial expenditure in the reasonable expectation of obtaining mineral leases. That expenditure may be jeopardised and problems of access may arise if the land claimed becomes Aboriginal land. This possible detriment is considerably lessened by the fact that only the eastern prospects of the companies fall within the land recommended for a grant."

I have set out these passages at length in order to consider the significance of the representations which the respondents made to the Minister after the Commissioner had presented his report and in order to assess the accuracy of a summary presented by his Department to the Minister to which reference will presently be made.

On 2 September 1981, the respondents sent to the Minister (then Senator Baume) a lengthy submission on the Commissioner's report. An excerpt from this document has already been quoted. It was submitted -

" ... that you should not be satisfied that all land recommended for grant by the Commissioner be granted to a Land Trust; further, you should excise from any such land the land the subject of Peko and EZ's mineral lease applications and any land necessary to give access thereto."

In a letter to the Minister dated 25 September 1981 the respondents, in furtherance of a representation for the "excision of our Barote Mineral Lease Applications from any grant of land to be made to Aboriginals", stated that the mineral prospect known as Ranger 68 lay within Mirarr Kundjey'mi. Two maps were enclosed. The letter describes one map as showing the Barote leases and lease applications in the Stage II area and the other as showing the drill holes in the Barote area "clearly indicating that the mineralized Ranger 68 drill holes are all within the area recommended for grant to Aboriginals, by Toohey J". After reciting par.321(j) of the report the letter said:

"Thus we believe that the EZ/Peko detriment is far greater than was found in the Report by Toohey J., as, for various reasons, we did not specify in our evidence precisely where Ranger 68 is. Unless this area is excised from any grant, all our known mineralized areas within Barote will become Aboriginal land, and then be subject to the veto power."

In effect the information conveyed to the Minister merely affirmed as fact that Ranger 68 is within the area of Mirarr Kundjey'mi. As has been seen, the Commissioner had adverted to such a possibility when he said -

"While the precise position of Ranger 68 was not indicated, part of the Barote areas to which it belongs falls within Mirarr Kundjey'mi, land recommended for a grant."

The Commissioner had been unable to find whether the prospect was in fact within that area because the respondents had failed to disclose that fact. The letter went on to discuss the respondents' desire that the areas covered by mineral lease applications be excised from any grant of land to an Aboriginal Land Trust. Senator Baume replied on 6 October 1981. Acknowledging receipt of the letter and enclosed submission of 2 September, the Minister said:

"I have noted the submission and will take it into account when making my decision on the land claim."

The Minister later advised the respondents that he was "prepared to defer (his) decision in relation to those parts of the Alligator Rivers Stage 2 claim area recommended for grant and over which Peko and EZ have made application for mining interests". He asked for "a listing and descriptions of the areas involved". The respondents furnished a list "of Peko and EZ's interests on land which has been recommended for grant by the Aboriginal Land Commissioner, Mr. Justice Toohey". Subsequent letters to the Minister reiterated the respondents' request for excision of the respondents' interests from any land grant. On 8 March 1982, Senator Baume announced that he had decided to grant to an Aboriginal Land Trust the areas recommended by the Commissioner except for nine blocks covered by the respondents' mineral lease applications in respect of which a decision was deferred.

Senator Baume was succeeded as Minister by Mr Wilson, to whom the respondents wrote on 24 December 1982. The Minister's attention was drawn to their "considerable interests in and about the land under claim" in five areas, one of which was the Alligator Rivers Stage II area. A meeting with the Minister was sought but the Minister declined. He replied:

"Let me assure you at the outset that the group's interests will be carefully considered when I make my decisions on these claims. I note that Peko was represented by legal counsel, and also made written submissions, at each of the four completed land claim hearings mentioned in your letter. I note also that the Aboriginal Land Commissioner's reports on those land claims include detailed comments on the detriment which Peko companies might suffer if the areas claimed are granted to Aboriginal Land Trusts. In all the circumstances I am satisfied that a meeting with representatives of Peko is not necessary at this time, as the group's interests have already been comprehensively articulated."

After a change of government, Mr Holding became the Minister on 11 March 1983. The Minister was furnished by his Department with a summary of land claims awaiting ministerial decision. The relevant part of the summary read as follows:

Claim Date of Commissioner's Action

Commissioner's Comments on Recommended

Report Detriment by Department

Alligator 2.7.81 Potential detriment We recommend

Rivers* to Peko-EZ who have that the nine

applied for a number blocks of land

of mineral leases, be granted.

some of which will Decision to be

be subject to conveyed to NT

Aboriginal veto and Government, NLC

all of which will and Peko-EZ.

require negotiation of

an agreement with the

Northern Land Council.

* Decision outstanding only in respect of nine blocks of land covered by mineral lease applications lodged by Peko-EZ. Decision to grant remainder announced by Senator Baume 8 March 1982."

The mineral prospects within the nine blocks of land were not identified. Thus the summary did not refer to the Ranger 68 prospect, its value or location. It did not differentiate between the nine blocks which the respondents had sought to have excised from the land recommended for grant to a Land Trust. On 15 March 1983, the Minister wrote on the summary "approved for action". By letter dated 26 April 1983, the decision was conveyed to the respondents. The Minister wrote -

"I have decided that those areas should be granted to an Aboriginal Land Trust in accordance with the Commissioner's recommendation."

In response to a request made pursuant to Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the Minister stated the reasons for his decision as follows:

"In accordance with S. 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) I am satisfied that this land should be granted to an Aboriginal Land Trust for the benefit of relevant Aboriginals because

(i)

the relevant Aboriginals are entitled to have title to their traditional land;

(ii)

the Act provides a scheme whereby persons wishing to use and occupy Aboriginal land can negotiate with a Land Council, acting on behalf of relevant Aboriginals, for the use and occupation of that land; and

(iii)

the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended."

The respondents applied to the Federal Court under the ADJR Act for an order of review in respect of the Minister's decision that the land recommended for grant by the Commissioner be granted to an Aboriginal Land Trust. The application was dismissed by Beaumont J. but an appeal to the Full Court was allowed (Bowen C.J. and Sheppard J., Wilcox J. dissenting) and the Minister's decision was set aside and the matter was remitted to him for reconsideration according to law. The Minister's decision was held to be void on the ground that he was bound to have regard to the information given to Senator Baume, though withheld from the Commissioner, as to the location of Ranger 68 within the boundary of Mirarr Kundjey'mi, and he had failed to have regard to that information in making his decision under s 11 of the Act. No evidence was tendered before Beaumont J. as to the reason why that information had been withheld from the Commissioner.

To support the order of review on the ground on which it was granted by the Full Court, it must appear that the Minister was bound to have regard to the information given to his predecessor in office as to the location of Ranger 68; the order cannot be supported if the Minister, though free to have regard to that information, was not bound to do so. The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power. The principle was stated by Deane J. in Sean Investments v. MacKellar (1981) 38 ALR 363 , at p 375, where his Honour cited the judgment of the English Court of Appeal in Elliott v. Southwark Council (1976) 1 WLR 499 , at p 507; [1976] 2 All ER 781 , at p 788:

"'It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

Apart from express provision, a statute may impliedly require the repository of a power in deciding on its exercise to have regard to certain considerations. The subject matter, scope and purpose of the statute must be considered to determine whether the repository is bound to have regard to any and what matters (Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492 , at p 505; Kioa v. Minister for Immigration and Ethnic Affairs (1985) 60 ALJR 113, at pp 127,131,143; 62 ALR 321 , at pp 346,354,373).

Section 11(1)(e) of the Act, which confers on the Minister the power to recommend to the Governor-General that a grant of an estate in fee simple in land be made to a Land Trust, is conditioned on the Minister's satisfaction that land recommended for grant by the Commissioner should be granted to a Land Trust (s 11(1)(b)). Section 11(1) does not expressly prescribe the matters, if any, to which the Minister is bound to have regard. If s 11(1) stood alone, it could be implied that the Minister is bound to have regard to the advantage that would accrue to some persons by the making of a grant of land to a Land Trust and the detriment to others that might result from the making of the grant. That is because the repository of the power ought not to exercise it without regard to the interests his decision is apt to affect. An exercise of the power conferred by s 11(1) is apt to affect, advantageously or detrimentally, the interests of persons who wish to have access to, or possession or use or ownership of, the land. But s 11(1) does not stand alone. It is part of a statutory scheme for the examination and disposition of claims for land grants made by or on behalf of traditional Aboriginal owners of unalienated Crown land. The statutory scheme was examined in Re Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 57 ALJR 59; 44 ALR 63 . The scheme provides for the Minister to give consideration to the comments in the Commissioner's report relating to the advantage to some people and the detriment to others which might follow from the making of a grant of land to a Land Trust.

The essential features of the scheme are: first, the Commissioner must find whether there are traditional Aboriginal owners of the subject land (a finding which involves an inquiry into the boundaries of the land, the identity of the persons having a relationship with the land and the strength of the traditional attachment of those persons to that land). Secondly, if he finds that there are traditional owners of the land, the Commissioner must recommend that the land or part of the land be granted in accordance with ss 11 and 12. Thirdly, the Commissioner must inquire into and make a report containing his comments on the several matters mentioned in s 50(3), including advantage and detriment. Fourthly, where the Commissioner recommends the grant of land, the Minister is bound to have regard to the whole of the report, including the Commissioner's comments on the matters mentioned in s 50(3) as well as the Commissioner's findings and recommendation. Fifthly, the Minister decides whether he is satisfied that an area of 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. And sixthly, if he is so satisfied, he makes the necessary recommendation to the Governor-General in Council and the grant is made. The scope and purpose of the Act make manifest the Parliament's intention that the Minister should have regard to the Commissioner's report which is presented to the Minister in accordance with the statutory scheme. And therefore, as I said in Meneling Station (at p 72; p 91) in reference to the Minister's consideration of the Commissioner's report:

"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)."

It is one thing to say that the Minister is bound to have regard to the Commissioner's report made in accordance with the statutory scheme and containing his comments on detriment; it is another thing to say that the Minister is bound to have regard to information relating to detriment subsequently furnished to him by a party who had appeared before the Commissioner. Where a matter submitted to an open inquiry involves a conflict between the interests of parties and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision-maker offends the requirements of natural justice: it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision-maker. If the fact of the communication is at first kept secret and later becomes known, there is an inevitable appearance of bias in the decision-maker. The general rule, founded firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it.

The effect of ex parte communications on administrative procedures has been clearly seen in the United States (see, for example, Schwartz Administrative Law (1976), par.127, p 361) and it has received judicial consideration in England. In Errington v. Minister of Health [1935] 1 KB 249 , where the Minister confirmed a local authority clearance order after receiving an ex parte communication from the local authority subsequent to a public local inquiry, the Minister's order was quashed. Maugham L.J. said (at pp.272-273):

"In my opinion, had it been intended by the legislature to authorise the Minister after having caused a public inquiry to be held and after having received the report, then to hold a private inquiry of his own - with regard to something which was the subject of an objection which was being considered before the Inspector, I should have expected the legislature to say so in plain terms. My conclusion is, that on the fair construction of this clause he has no right to do anything of the kind. That is not to say that there may not be matters which were not in dispute at all at the inquiry, and which were not the subject of anything dealt with at the inquiry, with regard to which he might, if he thought fit, inform himself. I am dealing with a case where something which is the subject of an objection definitely put and urged before the gentleman who holds a public inquiry is before the Minister after the report has been made, and with regard to which he subsequently obtains ex parte information from one side or the other. My conclusion is that although the act of affirming a clearance area order is an administrative act, the consideration which must precede the doing of that act is of the nature of a quasi-judicial consideration, and the Minister is bound to the extent mentioned by the House of Lords in the Board of Education v. Rice ( [1911] AC 179 )."

That is, the Minister is bound to give the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view: per Lord Loreburn, L.C. in Board of Education v. Rice, at p 182. The principle laid down in Errington does not depend on a statutory prohibition against taking account of information that is not contained in the report of an inquiry; it depends on the tendency of an ex parte communication to affect adversely the interests of another party. Thus in Reg. v. Registrar of Building Societies. Ex parte A Building Society (1960) 1 WLR 669 ; [1960] 2 All ER 549 , Lord Parker C.J. said (at p 678; p 555):

"The principle laid down in Errington's case is still good law, and it is beyond doubt that when there is a lis or a quasi-lis, matters being dealt with inter partes, it is wrong for a Minister or a tribunal to hear evidence from one party in the absence of the other, or to get outside information which may tell against one of the parties without giving that party an opportunity of dealing with it."

It is well established that the basis of the Errington principle is the requirement of natural justice: see R v. Milk Board; Ex parte Tomkins (1944) VLR 187, at p 193; Reg. v. Lilydale Magistrates' Court (1973) VR 122, at p 127; Attorney-General (NSW) v. Hunter (1983) 1 NSWLR 366, at p 374; Connolly v. Palmerston North City (1953) NZLR 115, at p 119; Low v. Earthquake Commission (1959) NZLR 1198, at p 1208; Kane v. Board of Governors of U.B.C. (1980) 110 DLR(3d) 311, at pp 322-323; Anti- Fascist Committee v. McGrath (1951) 341 US 123, at pp 170- 171 (95 Law.Ed. 817, at p 853). Other cases show that the principle is of general application to administrative inquiries where there is a contest of fact: see Lamond v. Barnett (1964) NZLR 195, at p 203; Denton v. Auckland City (1969) NZLR 256, at p 260; Re Magnasonic Canada Ltd. and Anti-Dumping Tribunal (1973) 30 DLR(3d) 118; Fairmount Ltd. v. Environment Sec. (1976) 1 WLR 1255 ; [1976] 2 All ER 865 ; Shareef v. Comr. for Registration of Indian and Pakistani Residents [1966] AC 47 .

The principles of natural justice, embracing the Errington principle, govern the procedure for ascertaining facts for consideration; but, statute apart, they do not finally shut out from consideration information acquired by means of an ex parte communication from one party. A decision-maker is entitled to take into consideration relevant information contained in an ex parte communication and any response by the other party; he is not entitled to take such information into consideration without giving the other party an opportunity to respond. Under the Act, the Minister can receive from one party information to correct, elucidate or add to what is in the Commissioner's report - for there is nothing in the Act to prevent his doing so - but he cannot take that information into account unless he gives the parties whose interests might be affected an opportunity for correcting or contradicting it. The Minister can give that opportunity by referring the information to the Commissioner for his advice pursuant to s 50(1)(d) of the Act. Or he can give a more informal opportunity by seeking the other parties' response by letter. A fair opportunity to deal with information can be given without resort to the procedures employed by courts of law. The Minister's power to give one party an opportunity to deal with an ex parte communication with respect to a matter on which the Commissioner has commented pursuant to s 50(3) is not in doubt. The questions are whether the Minister is bound to take steps to inquire into any information so obtained by giving all parties whose interests might be affected by it an opportunity to deal with it and whether a decision made under s 11(1) is invalid if the Minister fails to do so before making the decision.

The answer to the question whether the Minister is bound to inquire (that is, to inquire of the affected parties) determines the answer to the question whether a s 11(1) decision made without prior inquiry is valid. If the Minister is bound so to inquire before deciding, a decision without prior inquiry is void; if the Minister is not bound so to inquire before deciding, he is free to make the decision without taking account of the information contained in the ex parte communication. The Minister is bound to inquire before deciding if, in the circumstances of the case, a failure to inquire would "thwart or run counter to the policy and objects of the Act", to adopt Lord Reid's phrase in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 , at p 1030. The Minister is bound to inquire into information furnished to him in an ex parte communication if (i) the information is credible; (ii) it is significant to a matter to which the Minister is bound to have regard in exercising his power; (iii) an adequate reason for non-disclosure of the information to the Commissioner during his inquiry has been disclosed; and (iv) the Minister does not decide that, even if the information be true, the information would not affect his decision. It will be convenient to consider these four criteria seriatim.

(i) Credibility

A decision-maker is not required to inquire into information which is not credible on its face. Parliament may be taken to intend a decision-maker to be able to act on his impartial and reasonable view of the facts without pursuing a fresh inquiry into what should on its face be rejected as unreliable information. In the present case, the information as to the location of the Ranger 68 prospect within Mirarr Kundjey'mi appears to be credible, though the information is inconsistent with Mr Elliston's evidence that it was in the centre of the Barote area.

(ii) Significance to a matter required to be taken into account

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered. When information contained in an ex parte communication appears to be credible and to be of such significance that a matter which must be taken into account would not be properly considered if the information were disregarded, prima facie the decision-maker is bound to make an inquiry of the affected parties about that information before he makes his decision. If, being bound to make such an inquiry, the decision-maker does not do so, he is unable to make a valid decision. However, it would be futile and against common sense to require a decision-maker to delay the making of a decision to inquire into further information supplied ex parte by one party if he concludes that, on the assumption that the information is true, it will not tip the balance against the making of a decision contrary to the interests of the party presenting it. A particular example of this is considered subsequently under the heading "Information and policy".

Is the respondents' advice as to the location of the Ranger 68 prospect information significant to the "detriment" to which the Minister was bound to have regard? The answer is not beyond doubt. The matter to which the Minister was bound to have regard was the detriment to the respondents that might result if the whole of Mirarr Kundjey'mi were granted to a Land Trust. The respondents' representations had concentrated on the excision of all mineral lease application areas rather than on the excision of the area of the Ranger 68 prospect. The respondents did not furnish the Minister with a metes and bounds description of the Ranger 68 prospect, nor did they explain the inconsistency between Mr Elliston's evidence that the prospect was located in the centre of the Barote area and their subsequent assertion that it lay within Mirarr Kundjey'mi. On the other hand, the Commissioner had drawn attention to the value of the uranium deposits in the Ranger 68 prospect and the absence of clear evidence as to its location. On balance, it seems to me that the Commissioner's references to the location of the Ranger 68 prospect show that the information subsequently furnished to the Minister was significant. Therefore there was, prima facie, a duty to inquire into that information. But a prima facie duty to inquire is subject to at least two exceptions, to which I now turn.

(iii) Unreasonable failure to disclose

A statutory scheme for inquiry and report would be undermined if a party could withhold information from the person conducting the inquiry and then communicate that information to the decision-maker so as to compel the decision-maker to institute a further inquiry into it. The decision-maker is entitled to say to such a party: "You have had an opportunity to be heard at the inquiry; if you chose to withhold information then, I will not receive it from you now." The decision-maker is not bound to inquire into the information, though he is free to do so. It does not "thwart or run counter to the policy and objects of the Act" to allow a decision-maker a discretion to insist on adherence to a scheme of public inquiry and report prescribed by the Act when a party comes along afterwards and supplies ex parte information which that party had no adequate reason for failing to place before the inquiry. On the other hand, if there is an adequate reason why credible and significant information was not disclosed to an inquiry (for example, if it relates to facts occurring after the inquiry closed) the decision-maker is under a prima facie duty to inquire into it. In this case no adequate reason was disclosed for failing to place the information as to the true location of the Ranger 68 prospect before the Minister. The Minister therefore had a discretion to exercise.

To exercise the discretion, the Minister had to determine whether the policy and objects of the Act would be better served by insisting on adherence to the statutory scheme or by inquiring into the information. The Minister could not have determined which course to follow unless he knew the nature of the information and whether any adequate reason for failing to place it before the public inquiry had been disclosed. The Minister would have been entitled to insist that the respondents, who had sought to defeat a land claim by traditional Aboriginal owners by pointing to the detriment to the respondents which might result if the claim were granted, should have submitted the information available to them to the Commissioner for inquiry and comment. But the Minister, not knowing of the information subsequently furnished by the respondents, did not decide to disregard it because it had not been supplied to the Commissioner. He was therefore under a prima facie duty to inquire into the information, unless he decided that that information, even if true, would not affect his decision.

(iv) Information and policy

The power conferred by s 11(1) of the Act is not conferred for the purpose of deciding between competing claimants for title, possession or use of unalienated Crown land. A decision under s 11(1) is a political decision: see Meneling Station, at pp.67,72; 80,90. That is, it is a decision which the Minister might make having regard to considerations of the public interest as he sees it, whether or not that interest coincides with the interests of any party. The Minister is not acting as a judge; he is entitled to act upon his view of the public interest - which requires neither evidence nor the Commissioner's comments to prove it - and thus to make a decision which may be contrary to the weight of evidence at the Commissioner's inquiry or contrary to the comments made by the Commissioner pursuant to s 50(3). Although the Minister is bound to have regard to detriment in exercising his powers under s 11(1), the weight if any which he gives to detriment (or to any other matter mentioned in s 50(3)) or to information relevant to detriment is entirely within his discretion.

The functions of the Minister under s 11(1) are similar to the functions of a Minister as a confirming authority of a compulsory purchase order which Lord Greene M.R. considered in Johnson & Co. v. Minister of Health [1947] 2 All ER 395 , at p 399, in a passage which Lord Diplock in Bushell v. Environment Secretary [1981] AC 75 , at p 95, described as a "neglected but luminous analysis". Lord Greene said:

"It is in respect of the public interest that the discretion that Parliament has given to the Minister comes into operation. It may well be that, on considering the objections, the Minister may find that they are reasonable and that the facts alleged in them are true, but, nevertheless, he may decide that he will overrule them. His action in so deciding is a purely administrative action, based on his conceptions as to what public policy demands. His views on that matter he must, if necessary, defend in Parliament, but he cannot be called on to defend them in the courts. The objections, in other words, may fail to produce the result desired by the objector, not because the objector has been defeated by the local authority in a sort of litigation, but because the objections have been overruled by the Minister's decision as to what the public interest demands."

Before Ridge v. Baldwin [1964] AC 40 , the duty to act judicially was seen to depend on the existence of a proceeding like a lis inter partes and a distinction was drawn between the exercise of a purely administrative discretion and the performance of a quasi-judicial function. The distinction was sometimes drawn between two stages of one continuing process of ministerial decision-making. Echoes of the old distinction can be heard in modern times (see, for example, Rea v. Minister of Transport (1982) 48 P & CR 239, at p 245) although nowadays we are not concerned to attribute the character of a quasi-lis to an administrative decision involving a conflict of interests. Now we look to the statute and its subject matter to determine whether or not a decision can be validly made according to the policy of government without giving weight to the issues which opposing parties have fought out in administrative proceedings leading to the decision. If the Minister's decision may be founded on policy for which the Minister is responsible to the parliament (see Robinson v. Minister of Town and Country Planning (1947) KB 702, at pp 716-717, 720), the court does not review decisions affecting the interests of contending parties on the ground that no weight or insufficient weight has been given to evidence or information favouring one party. As Lord Diplock reminds us in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 , at p 644, Ministers are accountable to the parliament for policy and to the courts for lawfulness.

As the Act reposes in the Minister the power to make a political decision under s 11(1), he may refuse to give weight to any comment made by the Commissioner pursuant to s 50(3) or to any other information communicated to him with respect to a matter mentioned in s 50(3). He may make his decision under s 11(1) on broad policy grounds if he chooses to do so. His decision cannot be attacked on the ground that the Minister has not given sufficient weight to detriment but it can be attacked if the Minister fails to have regard to detriment. The Minister may deny any weight to detriment, but only if he has first had proper regard to that matter. When a decision-maker is bound to have regard to a matter, part of his function is to determine whether to give any weight to it. He does not make a valid decision if he does not perform that function.

To determine the weight to be given to a matter, however, the decision-maker must consider the significant information which he has about the matter. But if the decision-maker is empowered to make his decision on broad policy grounds without giving any weight to the matter to which the information relates, and he thinks it appropriate not to give weight to that matter or to the information, he is not bound to inquire further into that information.

Had the Minister in fact known of the information as to the location of the Ranger 68 prospect contained in the respondents' ex parte communications, he may nevertheless have decided without making further inquiry into the information that the remaining nine blocks of land within Mirarr Kundjey'mi should be granted to a Land Trust. He might have been satisfied (indeed, his statement of reasons suggest that he would have been satisfied) that those blocks should be granted whether or not the Ranger 68 prospect is within Mirarr Kundjey'mi. The Minister's statement of reasons shows that he decided that, as "the relevant Aboriginals are entitled to have title to their traditional land" and as "persons wishing to use and occupy Aboriginal land can negotiate with a Land Council, acting on behalf of relevant Aboriginals", "the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended". He was entitled to make that decision but only if he had had regard, in general terms, to the nature and extent of the detriment which might result to the respondents from granting to a Land Trust land containing the Ranger 68 prospect. Had he made that decision, inquiring into the information about the location of the Ranger 68 prospect would have been otiose. But he did not make that decision, because he did not know about the information. His Department did not tell him.

The Department and the Minister's knowledge

The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision.

Although the Minister is the repository of the power conferred by s 11(1) of the Act and although he may not delegate that power to his departmental officers, the Minister cannot be regarded in his exercise of the power as unaware of information possessed by his Department. As Lord Diplock said in Bushell v. Environment Secretary, at p 95:

"To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise."

In the present case, the first decision which the Minister had to make was whether to refuse to inquire into the information as to the location of the Ranger 68 prospect contained in the respondents' ex parte communications. The Minister was entitled to refuse to have regard to the information contained in the ex parte communications either because it had been withheld by the respondents from the Commissioner without adequate reason or because the truth of the information was not going to affect the decision under s 11(1) which the Minister proposed to make on broad policy grounds. But the Minister did not make that decision. Had he decided, for any of the reasons open to him, to refuse to inquire into the information and to submit it to the Aboriginal claimants for their response, his decision under s 11(1) could not have been challenged on the ground that he had not had regard to the information. But unless the Minister, having had his attention drawn to the information contained in the respondents' ex parte communications, had decided to refuse to consider it or had decided that, even if it were true, it would not affect his decision under s 11(1), he was bound to submit it to the Aboriginal claimants for their response and to have regard to it and to their response in making that decision. The Minister did not make either of the decisions which would have avoided the necessity to inquire into the information. He failed to inquire into the information and his decision under s 11(1) is therefore invalid. It is immaterial that the Minister might well have reached the same decision under s 11(1) had he known of the information. It is immaterial that the Minister may, upon his decision being set aside, decide to exercise his power anew in the same way as he did before. In that event, the difference between the old invalid decision and a new valid decision would be this: the old decision was not an informed decision, the new decision will be an informed decision. The Act requires an informed decision, and none has yet been made. The Minister's decision must be set aside, though for reasons somewhat different from those which found favour with the Full Court.

There is no ground for refusing relief in the exercise of a judicial discretion. The relief sought is in the nature of mandamus to compel the Minister to make a decision according to law and, as such a decision has not been made, the relief must be granted. The failure of the respondents to disclose to the Commissioner the information as to the location of the Ranger 68 prospect may affect the Minister's reconsideration of the matter in the manner indicated, but that is not a reason for the Court to refuse relief requiring the Minister to perform his duty according to law.

It follows that the order made by the Full Court must stand. The appeal should be dismissed. I would order the Minister to pay the costs.