Chapman v Ticker

(1995) 37 ALD 1

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Chapman
vTicker

Court:

Judge: O'Loughlin J

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 - The Act
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - s 9
Aboriginal Heritage Act 1988 (SA) - s 24
Aboriginal and Torres Strait Islander Commission Act 1989 - s 94
Aboriginal Heritage Act 1988 - s 23
Aboriginal Land Rights (Northern Territory) Act 1976 - The Act
Native Title Act 1993 - The Act
Sex Discrimination Act 1984 - The Act
Racial Discrimination Act 1975 - The Act

Case References:
Tickner v Bropho - (1993) 40 FCR 183; 114 ALR 409
Borkovic v Minister for Immigration and Ethnic Affairs - (1981) 39 ALR 186; 4 ALN N31
Minister for Aboriginal Affairs v Peko-Wallsend Ltd - (1986) 162 CLR 24; 66 ALR 299
Brettingham - Moore v Warden, Councillors and Electors of Municipality of St Leonards - (1969) 121 CLR 509
Wamba Wamba Local Aboriginal Land Council v Minister Administering The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - (1989) 23 FCR 239; 18 ALD 268
Kioa v West - (1985) 159 CLR 550; 62 ALR 321
FAI Insurances Ltd v Winneke - (1982) 151 CLR 342; 41 ALR 1
Minister for Immigration Local Government and Ethnic Affairs v Taveli - (1990) 23 FCR 162; 20 ALD 315
Faulkner v Conwell - (1989) 21 FCR 41; 17 ALD 456
ARM Constructions Pty Ltd v DCT (Cth) - (1986) 10 FCR 197; 65 ALR 343
Faulkner v Conwell - 21 FCR 41
Laws v Australian Broadcasting Tribunal - (1990) 170 CLR 70; 93 ALR 435
Port Louis Corp v Attorney General of Mauritius - (1965) AC 1111
Associated Provincial Picture Houses v Wednesbury Corp - [1948] 1 KB 223
Prasad v Minister for Immigration and Ethnic Affairs - (1985) 6 FCR 155; 65 ALR 549
Conyngham v Minister for Immigration and Ethnic Affairs - (1986) 68 ALR 423; 11 ALN N120
Bromley London Borough Council v Greater London Council - [1983] 1 AC 768
Wouters, Wright & Holmes v DCT - (1988) 20 FCR 342; 16 ALD 546
Mcveigh v Willara Pty Ltd - (1984) 6 FCR 587; 57 ALR 344
Minister for Aboriginal Affairs v Peko-Wallsend Ltd - 162 CLR 24
Walters v Essex County Board of Education - (1973) 38 DLR (3d) 693
Aboriginal Sacred Sites Protection Authority v Maurice - (1986) 10 FCR 104; 65 ALR 247

Hearing date: 5-9, 12, 14, 19-21 December 1994
Judgment date: 15 February 1995

Adelaide

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In my opinion, the conclusions that I have reached require the intervention of the court.

The minister did not ''consider'', in any sense at all, Mr Barton's representation to Professor Saunders. If that omission had been the only error, it would have been appropriate for the court to refrain from interfering because, despite their obvious importance to him, the subjects in Mr Barton's representations were covered adequately in other representations, the most notable of which was the detailed representation of the Chapmans.

The minister did not ''consider'', in any sense at all, the detail of the women's business; his reporter did not set out that detail in her report because she had given her undertaking to treat the matter as confidential and the minister denied himself the right to read the contents of the secret envelopes which, presumably, would have given him the opportunity to consider that most important representation. It may be true that the minister did not make his decision on the contents of the secret envelopes (he could not have relied on the contents as he had not read them). But he did make his decision as a result of women's business, the subject matter that was discussed in the secret envelopes. The detail of the minister's reasons for his decision, as set out in the amended s 13 statement has already been set out; it shows quite clearly, the importance that was attached to the women's business. The minister's entry into the issue of the bridge commenced with the letter of 23 December 1993 from the ALRM in which protection was sought for camp sites; it concluded with his s 10 declaration being based primarily on women's business: his reasons for his decision made no reference to camp sites. Despite the gravity of this error, if it were the only cause for concern, the matter could have been sent back to the minister so that he might reconsider the matter in accordance with these reasons: but there is more.

I am of the opinion that the published notice in the Gazette and local press was fatally flawed. For the reasons that I have already addressed in some detail, it failed sufficiently to identify the area that was to be the subject of the report and it failed totally to apprise the interested members of the public of the information to which they were entitled. As events transpired, an aspect of particular significance of the bridge area to Aboriginals was the secret women's business. The public were entitled to know that significance and to know the nature and extent of the perceived threat: para (a) and para (b) of s 10(4). The notice did not address either of these issues for the reason that Professor Saunders did not know of their existence at the time of the publication of the notice. She was, therefore, left with a choice; she could have continued her reporting functions, ignoring the subject of women's business, or she could have advertised afresh with the new advertisement containing the required information. She was not entitled to proceed as she did, nor was the minister entitled to make his declaration. The inadequacy of the notice meant that the Chapmans and Messrs Barton and Knott, along with other interested persons, were denied natural justice. It also meant that the minister lacked jurisdiction to make the s 10 declaration.

The nature of this error is so fundamental that it cannot be rectified by further consideration by either the minister or the reporter. This is a case where the court must use its powers under s 16(1)(a) of the AD(JR) Act to quash each decision ab initio.

As I have come to the conclusion that the court must intervene, it is not necessary for me to consider the argument that was advanced by Mr Collett, counsel for the third respondents, with respect to the prior conduct of the Chapmans; however in deference to his submissions I state my reasons for disagreeing with him. He said, in effect, that there was evidence disclosing a failure on their part to consult with Aboriginal persons and that such a failure breached conditions of planning approvals. The argument concluded with the proposition that if the court found any error in the decision-making process it should not grant any relief because of the manner in which the Chapmans had earlier conducted themselves. Such an argument ignores the public interest in this dispute and must be rejected. Even if the Chapmans had breached some undertaking to the state authorities or some condition of planning approval (and I expressly refrain from making any such finding) that factor could not, in isolation, determine the outcome of these proceedings. The inadequacy of the notice in the Gazette and the local press deprived members of the public of the opportunity of furnishing representations in appropriate detail. No doubt the Chapmans, together with their financiers and investors, were among the greatest losers as a result of the s 10 declaration; but other members of the public were also affected by it. The application of Messrs Barton and Knott is indicative of this fact. The interests of the public outweigh any shortcomings of the Chapmans.