Legal database - View: Cases: Chapman v Tickner

Chapman v Ticker
(1995) 37 ALD 1

(Judgment by: O'Loughlin J)

Chapman
vTicker

Court:

Federal Court of Australia

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

Judgment by:
O'Loughlin J

On 22 July 1994, the applicants in action No SG 57 of 1994, Thomas Lincoln Chapman, his wife, Wendy Jennifer Chapman and their son Andrew Lincoln Chapman (the Chapmans) instituted proceedings in this court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) seeking the judicial review of certain decisions of the first named respondent, the Minister for Aboriginal and Torres Straight Islander Affairs (the minister). Companies controlled by the Chapmans had intended to build a bridge at Goolwa in the State of South Australia which would have connected the mainland to Hindmarsh Island. However the minister had utilised his powers, first under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Commonwealth Heritage Act) and later under s 10 of that Act in such a way as to prevent construction of the bridge for a period of 25 years. The minister was satisfied that the approaches to the bridge and the bridge site was a significant Aboriginal area and that it was under threat of injury or desecration as a consequence of the intended construction of the bridge. The several decisions that were made by the minister in the utilisation of his statutory powers were among those that were sought to be reviewed in these proceedings.

Sections 9 and 10 of the Commonwealth Heritage Act are found in Div 1 of Pt II of the Act which is entitled: ''Protection of significant Aboriginal areas and objects''. This title, in turn, reflects the purposes of the Act as stated in s 4:

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

The issue of declarations in relation to ''objects'', as distinct from ''areas'', is covered by s 12 and is not relevant to a determination of these proceedings. Section 11 of the Commonwealth Heritage Act, on the other hand, deals with the contents of declarations with respect to an area of land. That latter section requires the declaration to contain a sufficient description and identification of the relevant area; the declaration is also to contain ''provisions for and in relation to the protection and preservation of the area from injury or desecration''.

The full text of ss 9 and 10 of the Commonwealth Heritage Act is as follows:

9(1) Where the Minister:

(a)
receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and

(b)
is satisfied:

(i)
that the area is a significant Aboriginal area; and

(ii)
that it is under serious and immediate threat of injury or desecration;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.

(3) The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.

10(1) Where the Minister:

(a)
receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b)
is satisfied:

(i)
that the area is a significant Aboriginal area; and

(ii)
that it is under threat of injury or desecration;

(c)
has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

(d)
has considered such other matters as he thinks relevant;

he may make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:

(a)
publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i)
stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii)
inviting interested persons to furnish representations connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii)
specifying an address to which such representations may be furnished; and

(b)
give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a)
the particular significance of the area to Aboriginals;

(b)
the nature and extent of the threat of injury to, or desecration of, the area;

(c)
the extent of the area that should be protected;

(d)
the prohibitions and restrictions to be made with respect to the area;

(e)
the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f)
the duration of any declaration;

(g)
the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

(h)
such other matters (if any) as are prescribed.

The purpose and the structure of the Commonwealth Heritage Act have recently been considered by a full court of this court in Tickner v Bropho (1993) 40 FCR 183 ; 114 ALR 409. In that case the respondent, Robert Bropho, an Aboriginal person, had sought judicial review of the minister's decision not to make a s 9 declaration in respect of an area in Perth known as the Old Swan Brewery site. The trial judge declared that the decision was invalid and should be set aside; the minister appealed. Black CJ accepted that the legislation was ''beneficial legislation, remedying social disadvantage of Aboriginals and Islanders''; FCR 193; ALR 419. His Honour rejected an argument that there might be cases in which there would be no point in resolving the issues raised by s 10(1)(b) for the reason that the minister might validly take the view that the existence of some other competing interest meant that no protective declaration should be made. This view was shared by Lockhart J who said at FCR 209; ALR 435:

To conclude that the minister can, in advance of considering and determining the matters referred to in paras (b) and (c) of s 10, decide that there are matters of such consequence to the nation that he may ignore the provisions of those paragraphs, is in my view contrary to the intendment of the Act and its evident purpose eloquently described in s 4.

There still remains, at the end of the day, a residual discretion in the minister with respect to the making of any declaration. But as French J, the remaining member of the court in Tickner v Bropho explained, the Act ''accords a high value to such protection for heritage areas threatened with injury and desecration'' FCR 224; ALR 449. I am required to bear these principles in mind in my determination of the issues that are now before the court.

Before proceeding to consider the circumstances surrounding the decision making processes of the minister, it is desirable to recount a brief history of the events that led to the institution of these proceedings.

It needs to be emphasised that what follows is not intended to be a detailed summary of all relevant facts; this court is not, in these proceedings, a fact-finding tribunal. Its responsibility is to examine the relevant decisions and to determine whether they, or any of them, were tainted by error of law. In Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188 ; 4 ALN N31 Fox J pointed out the limitations of judicial review; in particular, he explained that the court ''does not have power to make a decision on the merits of the factual position for itself''. It is confined to considering whether the case comes within any of the grounds of invalidity specified in the AD(JR) Act. This view was reaffirmed by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 ; 66 ALR 299 at 309 when he said:

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.

It is therefore necessary to recite only the more important facts so that an appropriate background for the challenged decisions is thereby presented.

Kumarangk is the Aboriginal name for Hindmarsh Island which is one of several islands in Lake Alexandrina near the mouth of the River Murray. Presently, public access to the island is by a single cable-drawn vehicular ferry. There is also a system of barrages in and about the island; they were built about 50 years ago to control water levels in the lake and the river and to hold back the flow of sea water at the mouth of the Murray.

The Chapmans first became involved with the island in about 1977 when one of their companies, Binalong Pty Ltd (Binalong) purchased land for the development of a marina. That company is now in receivership and in liquidation. Thereafter, over a period of many years, the Chapmans proceeded with their developmental plans for marina berths, residential allotments and business and service facilities. Stage one of the development is complete and almost fully sold; it consists of 320 marina berths, 170 allotments and an associated infrastructure which includes a licensed tavern, a combined general store and ships' chandlery, a fuel outlet, boat workshops, sewerage and water reticulation schemes and other associated civil works. The Chapmans' other company that was involved in the development was Marina Services Co Pty Ltd. It was a support organisation that supplied management, landscaping and maintenance services to Binalong. It was also intended that it would operate the fuel outlet on the island and carry on business as a boat charterer, repairer and supplier of other services to boat owners. It is also now in receivership but it is not in liquidation. In the course of their work, the Chapmans, or their companies, caused Vanessa Edmonds to compile an archaeological report for the Aboriginal Heritage Branch of the South Australia Department of Environment and Planning. The purpose of this report was to locate, record and assess Aboriginal sites on Hindmarsh Island (Kumarangk).

By 1989, the District Council of Goolwa and Port Elliott, the local government authority responsible for the Goolwa and Hindmarsh Island area, was assessing the need for a bridge to connect the island to the mainland. It seems clear that the past and future plans of the Chapmans, and, in particular, the nature of their proposed future development of the island was a ready catalyst for the idea that a bridge should be built; if the development proceeded to final completion, it was contemplated that there would be approximately 800 allotments in the scheme.

By October 1989, the South Australian Government had approved, in principle, the construction of a bridge subject to Binalong obtaining and submitting a satisfactory Environmental Impact Statement (EIS); the government also agreed that its Department of Road Transport would contribute half the capital cost of the bridge or $3m (whichever was the lesser); this contribution acknowledged the saving to the state in ferry operating costs. Subject to this contribution, Binalong, as the developer, was to meet the cost of the construction of the bridge but ownership of it was to vest in the local council.

Between 1989 and 1993, further work proceeded on the marina development, but planning approval stipulated that any progress beyond the first 150-160 allotments was contingent on Binalong causing the bridge to be built. Despite encountering financial difficulties, which led to a change in financial arrangements between Binalong and the South Australian Government, Binalong managed to complete stage one of the project and, on 1 July 1993, it obtained consent to stages 2-6 of the marina development; this consent was subject to certain conditions however, one of which was the substantial commencement of work on the bridge. In fact, preliminary siteworks on the approaches to the bridge commenced in October 1993 but quickly ceased as a result of demonstrations from groups of individuals who, for various reasons, were opposed to its construction.

At about this time, a Mr Victor Wilson wrote, in his capacity as chairperson of the Lower Murray Aboriginal Heritage Committee (LMAHC) to the minister expressing grave concern about the construction of the bridge and its likely effect on Aboriginal sites of significance. Further letters from LMAHC calling on the minister to intervene were written in mid November and early December 1993. These letters were followed by a letter to the minister dated 23 December 1993 from the Aboriginal Legal Rights Movement Inc (ALRM). In this letter, which was written on behalf of LMAHC, a specific request was made to the minister to use his powers under s 10 of the Commonwealth Heritage Act:

...to protect the two major camp site areas adjacent to the bridge approaches, and the sites on Hindmarsh Island as a whole...

The concerns about the construction of the bridge became known to the State Government, but in March 1994, it announced that it had completed a review of all relevant issues and that it had decided that the bridge was to be built. This announcement prompted the minister to write to the Hon Dr Michael Armitage MLC, the South Australian Minister for Aboriginal Affairs on 16 March 1994 asking whether construction work on the bridge would proceed immediately or whether it would await the results of a site survey to which reference had been made in the South Australian Government's announcement. Subsequently, on 6 April 1994, the state minister wrote the federal minister, interalia, in these terms:

The South Australian Government has reluctantly announced that, pursuant to contracts entered into by the previous government, construction of the Hindmarsh Island Bridge will proceed in order to avoid significant legal penalties. The South Australian Government has found this situation most distressing but is advised that it is legally bound.

...

I am informed that the application made by the Lower Murray Aboriginal Heritage Committee for a halt to bridge construction under the terms of s 24 of the Aboriginal Heritage Act (1988) will not be supported by the relevant minister.

(Section 24 of the Aboriginal Heritage Act 1988 (SA) (the State Heritage Act) empowers the state minister, where he is satisfied that it is necessary for the protection or preservation of an Aboriginal site, object or remains, to give directions prohibiting or restricting access to such site, object or remains).

The ALRM wrote the minister on 7 April 1994, complaining that the threat of injury or desecration was now imminent, and seeking his urgent intervention and an emergency declaration under s 9 of the Commonwealth Heritage Act. Before the minister responded to this request, the ALRM wrote him again on 20 April 1994, disclosing, for the first time, the existence of certain information that was regarded by Aboriginal people as highly confidential. The relevant section of the letter is as follows:

In the course of the past 4 days my client's have reluctantly divulged some secret/sacred information about the Hindmarsh Island, the Lakes and Coorong area including the sea, in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition. They have given me instructions to disclose this information to you to assist your assessment of the importance of this matter for Aboriginal people and in particular the Ngarrindjeri people.

''Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong. The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life. The Goolwa Channel is the 'meeting of the waters', and is of crucial importance in these terms.

''Consequently, the bridge proposal is culturally destructive. It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People.

''The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the 'meeting of the waters'. The bridge would also create a permanent physical connection between Kumarangk and the mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture.''

In due course, the significance of the information that was contained in this letter will become apparent; it means that, before the making of his first declaration, the minister was aware that there were claims that the bridge would affect Ngarrindjeri culture in a non-physical sense, although he did not then know that the secret or sacred information was confined to women and could not be disclosed to men. This subject, which has assumed major importance in these proceedings was described as ''women's business'' and I will continue to use that expression.

At this stage, the matter was beginning to gain momentum. The Federal Court had injuncted protesters, restraining them from interfering with the bridge works; the South Australian minister had made a ministerial statement in the House on 3 May 1994 advising that he had that day issued an authorisation allowing damage to Aboriginal sites to the minimal extent necessary to allow the construction of the bridge; work had recommenced on the site and protesters had been arrested on 11 May. That was the background that led to the minister making a declaration under s 9 of the Commonwealth Heritage Act on 12 May 1994 and to him extending that declaration for a further 30 days on 9 June. The extended period of this emergency declaration would expire on 10 July.

On 26 May 1994, the minister commissioned Professor Cheryl Anne Saunders to prepare a report for the purposes of s 10(4) of the Commonwealth Heritage Act. Professor Saunders thereafter caused to be published in the Cth Gaz and The Advertiser newspaper on 26 and 28 May respectively a notice as required by s 10(3) of that Act. That notice invited interested persons to make representations to Professor Saunders at her nominated address at the University of Melbourne on all or any of the matters covered by the notice; it did not state whether the representations could be made orally or should be in writing. But as the notice contained a statement that all representations ''will be attached to the report'' that the professor would be preparing for presentation to the minister there is a clear inference that they were intended to be written representations.

As events transpired, Professor Saunders received in excess of 400 written representations; but she also made the effort to visit Adelaide and Goolwa so that she might give to as many interested parties as possible the opportunity of speaking with her personally. Professor Saunders sent, by facsimile transmission, a copy of her draft report to the office of the minister in Canberra during the evening of Thursday 7 July 1994. That draft was, in turn, sent to the minister at his electoral office by facsimile transmission shortly after its receipt. Her signed report was received, by courier, during the morning of the following day, Friday 8 July. On Saturday 9 July the minister signed a declaration under s 10 of the Commonwealth Heritage Act stating that he was satisfied that the area described in the schedule to the declaration was a significant Aboriginal area and that he was satisfied that area was under threat of injury or desecration. The minister proceeded to declare that:

...for the preservation and protection of the area from injury or desecration, an act of a kind specified in Sch 2 must not be carried out in the area without my written consent during the period of 25 years commencing on the day on which this declaration is published in the Gazette.

The declaration appeared in the Cth Gaz on Sunday 10 July 1994. The prohibited acts, as stated in the second schedule of the declaration, were:

Any act that will, or is likely to, injure or desecrate any part of the area described in Sch 1, including:

(a)
bulldozing, grading, drilling or excavating; and

(b)
any act done for the purpose of constructing a bridge in any part of the area.

In their application for an order of review, the Chapmans initially sought review of three decisions that had been made by the minister: that is, the decision of 12 May 1994 whereby the minister made the interim declaration under s 9 of the Commonwealth Heritage Act, then the minister's decision of 9 June whereby he extended the effective period of the earlier declaration by a further period to 30 days, and, finally, the decision under s 10 of the Act prohibiting any work with respect to the bridge for a period of 25 years. For practical purposes, it will be sufficient to refer to the last of these declarations only as the significance of the earlier two decisions has been subsumed by the permanency of the s 10 declaration.

Later, on 3 August 1994, the Chapmans sought and obtained leave to add Professor Saunders as a second respondent to the proceedings; they also amended their application by seeking an order of review of Professor Saunder's report to the minister. It was submitted that her report was a reviewable decision having regard to the provisions of s 3(3) of the AD(JR) Act. That subsection provides:

Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

Later again, Isabella Alice Norvill and Douglas Milera, both of whom are Aboriginal people, were joined, at their request, as the third respondents to the proceedings. Ms Norvill has a traditional interest in Kumarangk and Mr Milera is the secretary of the Lower Murray Aboriginal Heritage Committee (LMAHC). It was not disputed that they were persons who were appropriate to present and represent the claims that had been made by and on behalf of the Ngarrindjeri people.

On 14 October 1994, in action No SG 78 of 1994, Graham Francis Barton and Gary Stephen Knott instituted proceedings in this court naming the minister and Professor Saunders as respondents. Later, on 28 November, Ms Norvill and Mr Milera were added as respondents. Mr Barton and Mr Knott were residents of Hindmarsh Island and supporters of the Chapmans. Earlier they had sought and obtained leave to be joined as respondents in the Chapmans' action -- No 57 of 1994 -- but later, without objection from any party, they withdrew from those proceedings and initiated their own action. On 28 November 1994, orders were made by consent that the two actions be heard concurrently and that the evidence in one action be evidence in the other in so far as it was relevant. Messrs Barton and Knott sought only a review of the minister's decision to make a declaration under s 10 of the Commonwealth Heritage Act. They did not attack the two earlier declarations under s 9 nor did they attack Professor Saunders' report, although, in the dying states of the trial they did attempt, unsuccessfully, to amend their application to challenge that report. I refused their application because, in my opinion, there was no satisfactory explanation for the extreme delay in applying to amend. Not only were they aware that the Chapmans had seen fit to mount a challenge to the professor's report, their failure to do likewise had been the subject of comment from time to time during the earlier stages of the trial.

The case for the Chapmans relied primarily upon the affidavit and oral evidence of Ms Wendy Chapman and her family's solicitor, Mr Palyga. But in addition, they also relied upon the affidavits of Mr Hockey and Mr Gunn, businessmen living on Hindmarsh Island, who each complained that he had not been given the opportunity of a personal meeting with Professor Saunders despite a request for such a meeting in his written representations to her; they relied, as well, upon the affidavits of Mr Searle, the owner of the caravan park at Hindmarsh Island, and Mr Munslow, a resident of Goolwa. Both these men obtained personal interviews with Professor Saunders but each complained about the inadequacy of the interview. Mr Searle's interview was conducted in the presence of Mr Knott (one of the applicants in action No 74 of 1994) and he found Mr Knott's presence inhibiting: he felt unable to ''speak openly to her about the effect on my business as they were private business matters which I did not wish someone else on Hindmarsh Island knowing''. Mr Munslow complained that the meeting only lasted about 5 minutes; he said:

I was not given enough time to express my views to Professor Saunders on the economic ramifications for myself, my company and the community of a permanent order stopping the bridge.

Finally the Chapmans relied upon the contents of the affidavit and oral evidence of Allen Bell Campbell, an Aboriginal person, who deposed that he is a descendent of the Larrindjeri clan of the Ngarrindjeri people. Mr Campbell challenged most, if not all, of the more important aspects of Aboriginal culture that had been accepted by Professor Saunders in her report; he also challenged the right of certain women (Doreen Kartinyeri and Sarah Milera) to speak on behalf of his family, claiming that they were not the custodians of the Aboriginal law for the Hindmarsh Island/Goolwa area. Despite objection from counsel for the respondents, I declined to strike out the passage from Mr Campbell's affidavit which read:

6. I have consulted with the women and elder people in our family. They know nothing about ''the womens business'' that has been raised in this matter.

Having regard to the nature of review proceedings under the AD(JR) Act and the limited fact finding function of the court in such proceedings, it seemed appropriate to make use of the provisions of O 33, r 3(b) of the Federal Court Rules 1979 (Cth) and to dispense with compliance of the rules of evidence. It was quite apparent from the voluminous written material that was placed before the court that there was opposition to the concept that the island and adjacent waters had a spiritual and cultural significance for the Ngarrindjeri women. The admission into evidence of this hearsay statement merely served to corroborate the existence of this opposition; it did not add any new dimension.

The case for Messrs Barton and Knott rested upon the affidavit evidence of Mr Barton and their solicitor, Mr McOmish; Mr Knott did not read an affidavit nor did he give oral evidence. At the request of the respondents, Mr Barton attended court and made himself available for cross-examination. Mr Barton has farmed land on Hindmarsh Island since 1982; he has shown an active and continuing interest in the proposal to build the bridge and he is a keen amateur anthropologist. He corresponded with the minister in May and June 1994, commenting, in para 4 of his affidavit of 28 September 1994, that by letter dated 18 May 1994 he wrote the minister ''enclosing information supporting my contention that the Aboriginal protests over the bridge were not by genuine tribal descendants''. Mr Barton also presented written submissions to Professor Saunders. He first gave an early indication of his interest in her report by letter dated 2 June 1994 and later, under cover of a letter dated 5 June 1994, submitted his principal representation of seven pages with six photographs of various sites on the Goolwa foreshore relevant to anthropological issues that, in his opinion, had been raised ''by Aboriginal protesters''. When Mr Barton met with Professor Saunders personally on 23 June 1994, he handed her his supplementary representation which he described as an addendum to his main submissions of 5 June. Although Professor Saunders' assistant acknowledged receipt of the main submission, for some inexplicable reason, it was not included in the box of some 400 or so representations that were forwarded by Professor Saunders' staff to the minister as required by s 10(3) of the Commonwealth Heritage Act. Mr Barton has complained about this omission, submitting that the minister had not therefore ''considered'' his representation as required by s 10(1)(c) of that Act. He has also complained that he was ''never provided with a response to any submissions by either Professor Saunders or Minister Tickner'' and that he was ''never given access to any archaeological reports or given any archaeological or anthropological information in relation to the Hindmarsh Island Bridge...'' Mr Barton also indirectly questioned the bona fides of the Aboriginal cause, inferring that the cultural significance of the site (that is ''the women's business'') was a topic of recent invention. In paras 5 and 6 of his second affidavit sworn on 6 December 1994 he deposed:

5. When I made my submissions to Professor Saunders and Minister Tickner I believed that Aboriginal concern regarding the bridge was about damage to alleged significant particular sites that would be physically damaged by the proposed construction of the bridge. I had formed that opinion from the wording of the advertisement placed in The Advertiser by Professor Saunders on 26 May 1994 and from various media reports relating to the protests over the bridge.

6. I first heard about ''women's business'' in the newspapers, The Advertiser and local, just prior to the declaration on 10 July 1994. Before then I had no idea that female aborigines claiming to be Naranjeri [sic] descendants, were claiming that a bridge would ''destroy'' their cultural and spiritual beliefs.

Mr McOmish was not required for cross-examination; what is set out below is a summary of relevant passages from his affidavit of 13 September 1994. In early June 1994, he obtained instructions to act on behalf of approximately 80 landowners on Hindmarsh Island with respect to the interim declaration that had been made by the minister under s 9 of the Commonwealth Heritage Act. On 10 June 1994 he submitted his formal representation on behalf of his clients to Professor Saunders. Mr McOmish said that his submission adverted to his clients' proprietary and pecuniary interests and the effect that a permanent declaration would have on those interests; advice had been received from a licensed valuer on the likely diminution of property values and that issue was addressed in Mr McOmish's submission. It was suggested that there could be a claim for compensation against the Commonwealth of amounts totalling up to $10m (that question of compensation does not, however, form any part of the applicants' claims in these proceedings).

Mr McOmish further deposed that, in his submission to Professor Saunders, he stated that representatives of his clients were willing to meet with the minister ''for the purpose of making their concerns more fully understood; he also drew Professor Saunders' attention to s 13(5) of the Commonwealth Heritage Act which requires the minister to revoke a declaration where he is satisfied that a law of a state makes ''effective provision'' for the protection of an area. Mr McOmish claimed that the provisions of the State Heritage Act contained such an ''effective provision'' and that it was not therefore necessary for the federal minister to invoke his powers under the Commonwealth Heritage Act.

By letter dated 9 June 1994, Mr McOmish wrote the minister requesting that he be supplied with any information that the minister had received from Mr Neale Draper, an anthropologist. Mr Draper had been commissioned by the South Australian Government to compile a report about the significance of Hindmarsh Island to Aboriginal people. This report (the Draper report) which was prepared in April 1994, had been submitted to Professor Saunders for her consideration. Mr McOmish deposed that in his letter to the minister he explained that the purpose of this request was to enable him to make ''proper and appropriate submissions to Professor Saunders''.

Mr McOmish did not receive a reply from the minister nor was he given the opportunity to comment on Professor Saunders' report. He said in his affidavit:

9. As Professor Saunders declined the opportunity to consult with me during the consultation process and as the minister did not give me the opportunity to comment on Professor Saunders' report prior to a decision being made by her, I believe that my clients were denied natural justice in the decision making process.

Mr McOmish further complained of the minister's alleged failure to comply with the provisions of s 13(1) of the AD(JR) Act. Under that subsection, an aggrieved person is entitled to request from a decision-maker ''a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision''. Although he acknowledged receiving ''a copy of the statement of reasons pursuant to s 13 of the AD(JR) Act'' Mr McOmish has complained in these terms:

I did not receive then nor at any time since then the copies of the materials and evidence as requested and to which my clients are entitled pursuant to s 13 of the AD(JR) Act.

In my opinion, this quoted passage does not reflect the statutory obligation that is imposed on a decision-maker under s 13(1) of the AD(JR) Act. That subsection only refers to a ''statement''; the statement must be in writing and it must set out the findings on material questions of fact; it must refer to the evidence or other material on which those findings were based; finally, it must give the reasons for the decision. All this information is to be included in, and form part of, the statement. There is no obligation on the decision-maker to supply, in addition to the statement, any ''copies of the materials and evidence'' as suggested by Mr McOmish.

The minister and Professor Saunders relied upon the two affidavits of the professor of 6 September and 25 November 1994 and the affidavit of Suzanne Debra Kee sworn on 29 September 1994; Ms Kee deposed that she was ''employed as an adviser'' to the minister. Both Professor Saunders and Ms Kee were made available for cross-examination. No evidence was called on behalf of the third respondents, Ms Norvill and Mr Milera, nor did they read any affidavits.

The following passages from the affidavit of Professor Saunders of 6 September 1994 address the vexed subject of ''women's business''. She explained that a second representation to her from the ALRM had attached to it the report of an anthropologist, Dr Deane Fergie, and that her report had three appendices, two of which were in sealed envelopes, with an indication on them that they were to be seen by women only. Professor Saunders continues:

6. During a week spent in Adelaide and Goolwa, from 19-24 June, I received oral representations from a number of persons. These included a meeting of 35 Aboriginal women on 20 June at which Doreen Kartinyeri was authorised to provide information to me about the significance of the area to Ngarrindjeri women on condition that I did not allow the information to be passed on to a man. I accepted that condition, as far as it lay within my power. In the event, I was able to write my report in a way which did not offend the women's tradition, but referred in several places to more specific supporting information in appendices to Dr Fergie's report, which was identical to the information which the women had orally given to me.

...

9. The nature of Dr Fergie's involvement in the application is set out on pp 8-11 of my report. She was appointed by the ALRM to prepare a report for them which ultimately came to me as a supplementary representation. She was not employed to assist me and nor did she prepare a report for me. She was not present at the principal meetings which I held with Aboriginal women: the occasions on which she was present are set out on p 9 of my report. I used her report in compiling my own report to the minister to the extent that I considered it helpful to do so. At no stage did I give the applicants an undertaking that Dr Fergie would not be involved with the Aboriginal women and I would not have been in a position to do so.

10. My conclusions about earlier Aboriginal inhabitants of the Goolwa/Hindmarsh area are set out on pp 14-18 of my report. Nevertheless, I sought to make contact with both Allan and Emilia Campbell after their interest was drawn to my attention. My discussion with Emilia is briefly described on p 11 of my report. In general terms, it was entirely consistent with what I had been told about the significance of Hindmarsh and Mundoo Islands. She told me that both she and her brother opposed construction of the bridge on these grounds. I was unable to make contact with Allan Campbell by telephone in the time available, but considered my discussion with Emilia more important in any event, in view of the significance of ''women's business''.

There is obvious conflict between Professor Saunders' evidence of her discussions with Emilia Campbell and Mr Campbell's evidence (to which reference has already been made) that he had consulted with the women in his family and they knew nothing of ''women's business''. I do not however consider that it is necessary for me to choose between these competing propositions. It is sufficient to note that there was ample information before Professor Saunders on the subject of ''women's business'' even if, as Mr Campbell stated, other Aboriginal women and elders did not have the same beliefs. For the purpose of these reasons, I accept the following statement of Professor Saunders which appears in para 17 of her affidavit of 6 September 1994:

In addition there were further concerns by Aboriginal women about Hindmarsh Island and the waters surrounding it, which included the site of the bridge, which Aboriginal women claimed had spiritual and cultural significance related to creation.

I return to the evidence of Messrs Hockey, Gunn, Searle, Munslow, Barton and McOmish. In my opinion, their evidence can be dealt with compendiously by addressing the question of the responsibilities of the decision-maker (that is, the minister) and the reporter (that is, Professor Saunders) under s 10 of the Commonwealth Heritage Act. Is there, for example, an obligation on the decision-maker to communicate, in some form, in response to inquiries from interested parties? Is there an obligation on the reporter to give personal interviews when requested or to give representors copies of or information about other representations?

I have come to the conclusion, based on the facts of this case, that there are no such obligations on the decision-maker or on the reporter. In arriving at this conclusion I have been influenced by the fact that this is not a ''one on one'' issue between a citizen and a government official. This is a case where there is a statutory invitation to the public at large to come forward and furnish their representations. Although not directly on point, the decision of the High Court in Brettingham - Moore v Warden, Councillors and Electors of Municipality of St Leonards (1969) 121 CLR 509 offers some assistance as an example of the application of the principles of natural justice where legislation allows for a measure of public involvement. In that case, a report on local government matters was to be made available for public inspection and an advertisement was to be published in an appropr1iate newspaper containing, interalia, a summary of the action recommended in the report. A person aggrieved by the recommended action had 6 months within which to object. Thereafter, there was a complex procedure for answering an objection and referring any continuing dispute to the commission which was required to hear evidence and argument. Before the hearing of the evidence had been completed, the respondents commenced proceedings claiming a declaration that the commission had failed to observe the rules of natural justice in conducting the inquiry. The respondents alleged that the commission had failed to disclose to them all relevant material available to the commission and any tentative views of the commission on the matters to be reported upon as and when the commission formed them, thereby depriving the respondents of the opportunity to make submissions with respect to such views. In holding that there had been no breach of the rules of natural justice, Barwick CJ (with whom Menzies and Windeyer JJ agreed) referred to the relevant passages of the legislation as a ''statutory scheme'' (at 521) and then proceeded to explain how he interpreted the piece of legislation that there required consideration (at 523-4):

The opportunity to put forward his views and the supporting material in the form of a petition would seem to me in this type of statutory scheme to satisfy the common law requirements of natural justice. But in any case s 15 is a clear indication by the legislature of the nature of the opportunity which it will afford the aggrieved persons to make known their views and the material upon and by which they seek to support them. The case is not one in which the legislature is silent as to the right to be heard, so that the common law can fill the void. The legislature has addressed itself to the very question and it is not for the court to amend the statute by engrafting upon it some provision which the court might think more consonant with a complete opportunity for an aggrieved person to present his views and to support them by evidentiary material. It is for this reason that I express the view that in any case the provisions of s 15 represent the extent of the legislature's provision for the hearing of the aggrieved person's objections to the commission's recommendations. To require a hearing or an opportunity to participate in the formation of the commission's recommendations whilst the inquiry under s 14 is in progress would in the presence of s 15 be to do more than natural justice requires.

I have also been influenced, not only by the express provisions of s 10 of the Commonwealth Heritage Act, but also by the interrelationship of that section with s 9 of the Act. It needs to be emphasised that these two sections in combination, impose a time constraint on the minister which can, when one considers the totality of the situation, be quite severe. When the minister decides to make an interim declaration under s 9 (because he then has before him an application for a permanent declaration under s 10), he has, in reality, no more than 60 days within which to implement the requirements of the statute and make his final decision with respect to a s 10 declaration. Within that time, the minister must choose a suitable reporter who, in turn, must publish the existence and purpose of the application and invite interested persons to furnish representations. The Act specifies that interested persons are to have, at least, 14 days before they are required to furnish their representations. The reporter is then required to give ''due consideration to any representations so furnished'': s 10(3)(b). In the particular circumstances of this case, that meant that Professor Saunders had to consider over 400 such representations and compile her report so that, if considered appropriate, the minister would have sufficient time to make the s 10 declaration before the expiry of the 60 day period.

It was suggested that this time constraint was not, as a matter of practicality, all that serious; it was submitted that it was unlikely that work would have resumed on the bridge site immediately upon the expiration of the 60 day period. In my opinion that is not a proper consideration to take into account. That conclusion can be tested in the following manner: the minister had earlier satisfied himself that there was an area that was a significant Aboriginal area that was under serious and immediate threat of injury or desecration. He therefore issued the two s 9 declarations and nominated Professor Saunders to report to him as required by s 10. As Lockhart J pointed out in Wamba Wamba Local Aboriginal Land Council v Minister Administering The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 23 FCR 239 at 247 ; 18 ALD 268 at 270:

The purpose of a s 9 declaration is to preserve the status quo of a significant Aboriginal area which is under immediate threat of injury or desecration until the (minister) decides whether to make a more permanent declaration under s 10.

It was possible that Professor Saunders' report might refute one or both of the minister's beliefs; the report and the representations might convince him that the area was not significant or it might convince him that there was no threat. Then again, the report might vindicate the minister's beliefs; but he would then have to consider and weigh the competing interests of other people and the other matters that are referred to in s 10(4) of the Commonwealth Heritage Act. None of those matters had received his consideration when he made the s 9 declaration. If the competing interests outweighed the Aboriginal interests that would be the end of the matter: no declaration would be made. But if the Aboriginal matters were assessed as the more important then at the expiration of the 60 day period, a significant Aboriginal area that was under threat of injury or desecration might lose the protection of the Commonwealth Heritage Act because the minister or the reporter or both of them had failed to attend to their statutory obligations within a time sufficient to enable the minister to make his s 10 declaration. Any such gap in time between the expiry of the s 9 declaration and the making of a s 10 declaration would run the risk of frustrating the purpose of the legislation. The minister would be derelict in his duty if he allowed a gap in time to occur between the expiry of the 60 day period and the making of the s 10 declaration: the minister is not to know what harmful conduct might occur in that interval of time.

There is ''a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention'': Kioa v West (1985) 159 CLR 550 at 584 ; 62 ALR 321 at 346 per Mason J as he then was. His Honour went on to add that where ''the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute''. A few years earlier in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 363 ; 41 ALR 1 at 15 his Honour had said that the fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear that person before exercising that power.

At this stage, I am only considering so much of the complaints as relate to the evidence of inadequate or no consultation between the reporter and the six interested parties. On the assumption that a s 10 declaration would affect their rights it seems to me that the legislature considered that it would be sufficient to inform them through the press and give them the opportunity to furnish written representations.

I turn then to the Chapmans. The effect of a s 10 declaration on them was much greater but the legislation does not differentiate between the degrees of interest; I therefore conclude that the Chapmans' rights were likewise limited.

The Act tells little of the duties of the reporter. Section 10(4) stipulates that her report must ''deal with'' the seven nominated subject matters that are therein set out and ''such other matters (if any) as are prescribed'' (there are presently none). But otherwise her duties and responsibilities are those that are listed in s 10(3). They are limited in para (a) to the publication of the relevant notice; this is to contain information as to the purpose of the original application and the matters that are required to be dealt with in the report, the invitation to interested parties to furnish representations within a specified period and the reporter's address. Under para (b) she is to give ''due consideration to any representations so furnished'' and attach them to her report when submitting it to the minister. Within the framework of the statute, there is no mandate to conduct a viva voce inquiry; there is no requirement to give or receive personal interviews; there is no power to administer an oath nor any power of subpoena; there is no suggestion that the reporter is to engage in debate with representors or to distribute copies of representations among some or all of the representors and there is, likewise, no suggestion within the terms of the legislation of any such obligation on the minister.

In my opinion, the statute, concerned as it is with the preservation and protection of areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition, requires the minister and the reporter to act expeditiously to prevent injury or desecration. Such an obligation can not be achieved if the reporter is required to conduct an inquiry where numerous interested parties are entitled to receive, consider and make submissions with respect to the representations of another interested party: nor do the time constraints that are imposed by the statute afford the reporter the opportunity of circulating, in draft, a copy of her proposed report, so that submissions may be made on its contents before it is presented to the minister.

It was for the legislature to decide, as a matter of social justice, whether there should be legislation that preserves and protects areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition. But it was also for the legislature to resolve how that preservation and protection would be implemented. On the one hand, it could have resolved that the minister would have an unfettered discretion to make an appropriate declaration where information that was in his possession caused him to believe that such a declaration was, or might be, appropriate. On the other hand, parliament could have ordained that no such declaration could be made unless and until an independent committee of inquiry, with the power of subpoena, the power to administer oaths and the like, had first recommended that such a declaration be made. But the legislature chose neither of these extremes: it opted for a middle course where ''a person nominated by'' the minister (who could be a member of his department) is required to advertise for, receive, give due consideration to any representations that are furnished and attach them to the report that the reporter is required to submit to the minister. Thereafter, the minister is required to consider the report and the representations and to consider ''such other matters as he thinks relevant''; if he is then satisfied that the relevant area is a significant Aboriginal area that is under threat of injury or desecration, he has fulfilled the conditions that must be satisfied before he can issue a s 10 declaration. Of course, the matter remains one of discretion: that is, even though all conditions are fulfilled, the minister has a residual discretionary power that may lead to a decision on his part not to make the required declaration.

I have therefore come to the conclusion that the complaints of Messrs Hockey and Gunn that they were not given personal interviews by Professor Saunders, the complaints of Messrs Searle and Munslow about the inadequacy of their personal interviews with Professor Saunders, the complaints of Mr Barton that he was not supplied with archaeological or anthropological information and the complaints of Mr McOmish that Professor Saunders did not consult with him and that he was not given the right to comment on Professor Saunders' report are not relevant to these proceedings. Neither Professor Saunders nor the minister was required to conduct themselves in the manner suggested by the complainants.

In addition to these matters, it is appropriate, at this stage, to mention that the parties agreed, as matters to be placed before the court as agreed facts, that Professor Saunders did not provide to the applicants a copy of the Fergie report, nor did she invite the applicants to comment on that report prior to preparing her own report. However, for the reasons that I have already given, I do not believe that these are issues which are relevant to these proceedings. Professor Saunders had no obligation, statutory or otherwise, to provide any interested party with a copy of the Fergie report, nor did she have any like obligation to give any one an opportunity to comment upon its contents.

In accordance with requests made by the Chapmans, the minister issued three statements of reasons pursuant to s 13 of the AD(JR) Act in respect of his two s 9 declarations and his declaration under s 10 of the Commonwealth Heritage Act. Much later, on 22 August 1994, a month or so after the Chapmans had instituted these proceedings, he issued an unsolicited statement of reasons which were said to be an amended statement in respect of the s 10 declaration. The filing and the admission into evidence of the amended statement of reasons was strongly contested by Mr Meyer, counsel for the Chapmans; he submitted that a decision-maker had no right to file amended reasons but, in the alternative, if there were such a right, then those amended reasons could not be admitted into evidence except with the consent of the parties (and the Chapmans withheld their consent). I reject the proposition that a decision-maker is not entitled to file amended reasons. Although the AD(JR) Act is silent on the subject, there is provision in s 13(7) for the court to order the decision maker to furnish an additional statement containing further and better particulars. If, therefore, the Act recognises that there will be occasions when a statement of reasons will be inadequate and empowers the court to order the decision-maker to remedy the deficiency, it is not a great leap forward to find, as I do, that a decision-maker is entitled to recognise a perceived deficiency and attend to it without awaiting the compulsion of an order of the court. The weight that might be attached to the original statement and the amended statement (if it is admitted into evidence) is, of course, another matter.

Mr Meyer relied upon the decision of a full court of this court in Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 ; 20 ALD 315 in submitting that the court should reject, as inadmissible, the amended statement of reasons. In that case, which was one seeking the review of decisions to deport, the trial judge had found that the respondents had been denied natural justice in that certain matters were put before the decision-maker which were adverse to them and on which they had had no opportunity to comment. His Honour rejected, as inadmissible, the statement of reasons which contained a statement that the decision-maker had given little or no weight to those adverse matters. On appeal, Davies and Hill JJ came to the conclusion that the trial judge had been correct in refusing the tender; French J, the remaining member of the court was of a contrary view. In coming to his decision, Davies J said that it has been the practise of this court not to receive such an unverified statement unless a ground of admissibility is established: FCR 168; ALD 320.

A year earlier, in Faulkner v Conwell (1989) 21 FCR 41 ; 17 ALD 456, Jenkinson J (with whom Woodward and Ryan JJ agreed) had concluded that the trial judge had been correct in treating affidavit evidence that had been tendered on behalf of the decision-maker as tending to prove facts to which the decision-maker had given consideration in making his decisions even though reference to those facts was not contained in the s 13 statement of reasons. In the case at bar, leave had been granted to the minister without objection, at a directions hearing on 18 August 1994, to file and serve an amended s 13 statement of reasons; it was further ordered, without objection, that the amended reasons be treated as part of the court file and that its contents need not be verified by affidavit or affirmation. It was at a later directions hearing that counsel for the Chapmans first flagged his opposition to the filing of the amended statement and to its intended evidentiary use.

The facts of this case are materially different from those in Minister for Immigration v Taveli . In the present case, counsel for the Chapmans put into evidence the first three statements of reasons that the minister had issued in respect of the two s 9 declarations and the s 10 declaration; this was achieved by annexing them as exhibits to an affidavit of Mr Palyga and then tendering, by consent, that affidavit. Thus, so it would seem, it suited the applicants to have before the court so much of the minister's reasoning as they thought might assist their case; they were not however prepared to have the whole story before the court. The minister being entitled to file an amended statement of reasons, fairness dictated that either all or none of his reasoning process should be before the court. As the applicants did not actually challenge the existence or the mode of creation of the amended statement of reasons, its existence (as distinct from its contents) was not bona fide in dispute. That in my opinion is sufficient to invoke the provisions of O 33, r 3 of the Federal Court Rules 1979 and to receive it into evidence, leaving it to counsel to make their respective submissions about the weight that should be given to its contents.

It is instructive to compare the contents of the original statement of reasons for the s 10 declaration with those that are contained in the amended statement. Some of the differences are inconsequential: others are quite dramatic. An example of an inconsequential matter was the change in the manner in which reference was made to the island. The first statement referred to a declaration ''over'' Kumarangk (Hindmarsh) Island ''and the nearby mainland'' whilst the second was amended to read a declaration ''in relation to an area of Kumarangk (Hindmarsh Island)'' with the reference to the ''nearby mainland'' being omitted. Another inconsequential alteration was the correction of the name of Aboriginal Legal Rights Movement Incorporated. But an alteration of far greater importance was the inclusion in the minister's amended reasons of references to the representations that had accompanied Professor Saunders' report to him. Section 10(3)(a) of the Commonwealth Heritage Act required Professor Saunders to invite interested persons to furnish to her their representations; s 10(3)(b) required her to give due consideration to such representations and to attach them to her report to the minister; finally, s 10(1)(c) called upon the minister to consider, before making any declaration, not only the professor's report, but also ''any representations attached to the report''. Bearing in mind that one of the requirements of s 13 of the AD(JR) Act was the inclusion in the statement of reasons of a reference to ''the evidence or other material on which those findings were based'', a failure in the first of the statements to make any reference to the representations was quite ominous; it invited a submission that the minister had not considered them as required by the Commonwealth Heritage Act: ARM Constructions Pty Ltd v DCT (Cth ) (1986) 10 FCR 197 at 205 ; 65 ALR 343 at 350 per Burchett J; Faulkner v Conwell , 21 FCR 41 supra at FCR 46 ; ALD 459 per Jenkinson J (with whom Woodward and Ryan JJ agreed).

Other alterations to the amended statement suggest that the draftsperson of the first statement may not have had the necessary skills to comprehend the thrust of the legislation. Both ss 9 and 10 of the Commonwealth Heritage Act require the minister to be satisfied that ''the area'' is a significant Aboriginal area; under s 9 he must be satisfied that there is a ''serious and immediate threat of injury or desecration'': under s 10 it is sufficient that there be a ''threat of injury or desecration''. But in both cases the minister must apply his mind to a particular area. The reference, in the first s 10 statement to the issue of threat of injury or desecration, contained an unnecessary adjectival reference to ''a serious threat''; more importantly it failed to connect the threat to a nominated area. These mistakes were recognised and remedied in the amended statement as is apparent when the two passages are compared. The first statement read as follows:

I was satisfied that the declared intention of the State Government to proceed with construction work between Goolwa and Kumarangk (Hindmarsh) Island for the proposed Hindmarsh Island Bridge constituted a serious threat of injury or desecration within the meaning of the Act.

The passage in the amended statement was:

I was satisfied that as a result of the declared intention of the State Government to proceed with construction work between Goolwa and Kumarangk (Hindmarsh) Island for the proposed Hindmarsh Island Bridge the area was under threat of injury or desecration, within the meaning of the Act.

There is a further observation about the minister's s 13 statements to which reference should be made; it is the reproduction of the first section of the information appearing under the heading ''reasons for my decision''. In the original statement of reasons dated 12 July 1994, dealing with the first s 9 declaration of 12 May 1994, the information under that heading read as follows:

Reasons for my decision:

Having considered the matters placed before me, and being satisfied that the area was a significant Aboriginal area and that it was under serious and immediate threat of injury or desecration by the proposed construction of the Hindmarsh Island Bridge, and not being satisfied that the area was effectively protected under the law of South Australia, and taking into account the objects and purposes of the Act, I decided that I should make the declaration.

The statement of reasons for the second s 9 declaration deleted reference to the lack of protection under the law of South Australia and referred to an extension of the declaration for a period of 30 days, but was otherwise a copy of the first statement of reasons up to and including the words ''and taking into account the objects and purposes of the Act''. The first statement of reasons for the s 10 declaration likewise copied the statement of reasons with respect to the second s 9 declaration save that its concluding words referred to the period of 25 years. It perpetuated, in particular, the reference to a ''serious and immediate threat''. The information under the heading ''reasons for my decision'' in the amended s 10 statement, not only corrected this mistake, but also materially changed the thrust of the minister's reasons. The full text is set out later in these reasons; it placed great emphasis on the spiritual and cultural well being of Aboriginal women, a subject not earlier addressed in the original reasons.

Although the minister was the signatory to both the first and the amended statement of reasons in respect of the s 10 declaration and although both statements are couched in terms which make it plain that it was the minister, personally, who was held out to be the provider of the information that was reflected in the contents of the statements, the question whether the minister considered the accompanying representations remains a vexed question and is one that will be addressed later in these reasons.

The grounds of complaint in the Chapmans' application are numerous and varied. Having regard to the numbered paragraphs, subparagraphs and the multiple references within them, it was suggested that there were in excess of 150 complaints about the way in which Professor Saunders and the minister had performed (or failed to perform) their respective duties under the Act. The complaints of Messrs Barton and Knott were, numerically, far less, but none the less important. I will deal first with the grounds of complaint that are contained in Messrs Barton and Knott's application. In para 1 they alleged breaches of the rules of natural justice, particularising seven individual complaints (the fourth, fifth and sixth of which were ultimately abandoned). In para 2 they complained that the minister failed to consider the representations that had accompanied Professor Saunders' report and thereby failed to observe a procedure that was required by law to be observed in connection with the making of a decision.

The nature of the Aboriginal claims was addressed in para 1.1 of the application; it complained that the minister was in breach of the rules of natural justice in failing to give landowners on Hindmarsh Island, including the applicants, details of the claims of cultural significance made by the Ngarrindjeri people. As I have earlier stated, I do not see that the legislation imposed any such direct duty on the minister, but there is the question whether he has a vicarious responsibility. As I understand the legislation, the existence of the Aboriginal complaints must be specifically addressed in the notice that the reporter is to insert in the Gazette and the local newspaper. I will return to this subject when I come to consider the contents of the notice.

Having regard to my earlier conclusions about the extent of the obligations on the reporter and the minister under s 10 of the Commonwealth Heritage Act, and, in particular, my conclusion that there was no obligation on either the minister or the reporter to grant personal interviews to those parties that might have sought them, I reject so much on the grounds of complaint as are contained in para 1.2 of Messrs Barton & Knott's application: that is, I find that there was no obligation on the part of the minister to give to them any opportunity to make submissions on the reports of Professor Saunders and on the reports of such anthropologists and archaeologists as may have been referred to or relied upon by her in the compilation of her report. Nor do I consider that Messrs Barton & Knott were entitled to have any opportunity to make submissions to the minister on the contents of ministerial briefs prepared for the minister by officers of the Aboriginal and Torres Strait Islanders Commission (ATSIC) or on the subject of pecuniary compensation to them in the event that the bridge be not built. One further matter was addressed in para 1.2; it was a complaint that Messrs Barton & Knott had not been given the opportunity by the minister to make submissions on:

(c): the nature of the claims made by the persons seeking an order pursuant to s 10 of the Act.

The question of the nature of the claims that have been made by and on behalf of Aboriginal persons remains a contentious issue when regard is had to the manner in which members of the public and persons interested in the proposal for the construction of the bridge were informed of the existence of the minister's s 9 declaration and the possibility that there might be a s 10 declaration. That is a matter which will be addressed when considering the sufficiency of the notice that Professor Saunders inserted in the press.

In paras 1.3 and 2.1 of their application Messrs Barton & Knott complained that the minister failed to consider certain submissions and representations, including the representations that Mr Barton had presented to Professor Saunders. In so far as these grounds of complaint refer to a failure on the part of the minister to respond to submissions that Mr Barton presented to the minister, I find that the minister had no obligation to reply to them. As to the failure of the minister to consider Mr Barton's principal submission of 5 June 1994 to Professor Saunders, I will defer that matter until I come to the larger question of the meaning of the word ''considered'' and the extent to which s 10(1)(c) of the Commonwealth Heritage Act requires personal involvement on the part of the minister. I note, in any event, that there was no evidence to support the allegation that the minister had failed to consider the submissions that Mr Barton had made directly to the minister.

The allegation in para 1.4 that the minister was biased, or, alternatively, that Messrs Barton & Knott had a reasonable apprehension as to bias because of the minister's failure to answer correspondence that contained allegations that he had a personal view that the bridge should not be built had no foundation. No evidence was led that the minister had ever expressed any such view and the ground was ultimately abandoned: that is the end of that matter.

The final three complaints in Messrs Barton & Knott's application are against Professor Saunders. In my opinion, the first two were never justified and it was appropriate that they were ultimately abandoned. First, it was said that she failed to consider Mr Barton's representations; Professor Saunders said that she did consider them. I believe her. Next it was said that she did not give Mr McOmish, the solicitor for Messrs Barton & Knott, an opportunity to make oral submissions; I have already held that there was no such obligation on her. The final issue reverts back to a matter that has already been mentioned: the sufficiency of the notice that Professor Saunders inserted in the press. The complaint in para 1.7 is that Professor Saunders failed to give Messrs Barton & Knott ''sufficient particulars of the claims of cultural significance and any reports or written material supporting that claim so as to enable (them) to make any meaningful submission on the validity of the claim''. I have already rejected the proposition that the reporter had any obligation to distribute to interested persons any reports or other material and I will consider the sufficiency of the notice after summarising the Chapmans' complaints.

I turn next to a consideration of the Chapmans' application. It was not disputed that they and Messrs Barton and Knott were aggrieved persons within the meaning of s 3(4) of the AD(JR) Act. The extent of Mr Knott's grievance was somewhat spurious but as the issue was not raised, I will not pursue it. The Chapmans' association with Binalong, including their role as guarantors of its debts, and the loss that Binalong will undoubtedly suffer as a consequence of the s 10 declaration, clearly demonstrates that they, in turn, face very large losses. The Chapmans claimed that at the time of the lodgment of their application, Binalong owed its financier approximately $15.5m and estimated that the decision to stop construction of the bridge will cause estimated losses of about $47.5m. None of the figures was proved but it is sufficient to note that Professor Saunders commented that representations made to her by Westpac Banking Corp were to the effect that, at the end of May 1994, the Binalong group owed its subsidiary, Partnership Pacific Ltd, in excess of $15.9m. It may be accepted that the losses of Binalong and of the Chapmans, as a result of the decision to stop work on the bridge, will be very substantial.

The first complaint in para 1 of the Chapmans' application was that, for differing reasons, the minister and the reporter breached the rules of natural justice. There then followed 35 individual grounds in support of this complaint. The first of these lacked any evidentiary base and must be dismissed. It was claimed that the minister had prejudged the matter in that he had told Senator John Coulter on 12 May 1994 that if there were no mediated solution, he (the minister) would make a declaration permanently stopping the bridge. Far from calling Senator Coulter to prove this most serious allegation, the applicants did no more than seek to tender a press cutting of a media release allegedly attributable to the senator. The tender was rejected, the more so because it did not even support the complaint. The relevant passage was:

Senator Coulter said that unless a mediated solution is found the government will then move to shut down the project altogether.

Even though this ground and the ground in para 1.2 were abandoned during closing submissions I have taken time to mention this initial ground of complaint because it was the forerunner of several like allegations. It is unfortunate but it is, in my opinion, quite evident that the Chapmans have made an assessment that the minister and his advisers had made a decision, long before Professor Saunders delivered her report, that the bridge would not proceed and that they had played out their parts, as in a charade, so that it could be said that there had been compliance with the statutory obligations that are contained in the Commonwealth Heritage Act. One can understand the distress that the Chapmans would have felt as a result of the decision, and there are aspects of this case, as will become apparent, which are cause for grave concern, but I am compelled to say that the litigation was unnecessarily prolonged as a result of their fixation that they have been the victims of a conspiracy to ignore their rights. The second ground of this complaint in the application (ie para 1.2) lends support to this rather sad conclusion. The minister was accused of bias because Mr Matt Rigney, the Chairman of the Adelaide Regional Council of ATSIC had threatened that ATSIC, would withdraw $lb in funds from its Banker, Westpac (who were engaged in the financing of the bridge) unless work on the bridge was stopped. Because the functions of the Adelaide Regional Council included the function of advising ATSIC (s 94 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)) and because, under s 7 of that Act, it is a function of ATSIC to advise the minister and because (as it was alleged) the minister ''is accustomed to act in accordance with the advice of ATSIC'' and receive ''ministerial briefs from ATSIC'', that, presumably, made the minister biased or, alternatively gave the applicants a reasonable apprehension of bias. I reject this complaint as wholly unreasonable and I further reject the additional allegations of bias in para 1.3, 1.4 and 1.16 that have as their base the fact that the minister saw fit to grant interviews to various people who opposed the construction of the bridge even though he did not meet with the Chapmans or their advisers and did not see fit to accommodate the Chapmans' request for the appointment of an independent Aboriginal anthropologist. None of these allegations would lead a fair minded observer to conclude that the minister ''would bring other than an unprejudiced and impartial mind to the resolution of the issues...'' Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 ; 93 ALR 435 at 447 per Mason CJ and Brennan J.

The allegations in para 1.5 to 1.8 complained that the minister or the reporter did not give various parties, including the Chapmans, opportunities to comment on material. I have already explained why those grounds must be rejected.

Paragraph 1.9 complained that Professor Saunders ''allowed Dr Deane Fergie, an anthropologist appointed by the Aboriginal Legal Rights Movement, to sit in on her consultations with Aboriginal Women''. The complaint continued that the Chapmans had been led to believe that Professor Saunders had ''accepted that fairness to the applicants demanded that no anthropologist appointed by the Aboriginal Legal Rights Movement should be involved''. This complaint calls for two comments: first, in a passage from her affidavit that has already been quoted, and elsewhere in her evidence, Professor Saunders refuted the accuracy of the detail of this complaint and I accept the professor's evidence; second, I am by no means sure that the allegation, even if made out, would have been a justifiable complaint. Dr Fergie was and is, presumably, an expert in her field; she was a non Aboriginal person who had knowledge about the secret women's business. Even though she had been retained by opponents to the bridge, that alone, having further regard to Professor Saunders' independent discussions with the Aboriginal women and their spokesperson, Ms Doreen Kartinyeri, is not, in my opinion, a justifiable cause of complaint.

Paragraph 1.10 to 1.13 and 1.15 raised questions about the credibility of Aboriginal witnesses, the nature of the role that Professor Saunders should have undertaken and her supposed failure to conduct a proper investigation. Such issues have already been answered by my finding that the statutory obligation of a reporter is limited to receiving and considering representations and reporting to the minister. Professor Saunders said in evidence that she saw her role as collecting, sifting and assessing critically the information that she had gathered; I agree with that summary. Professor Saunders choose to go beyond the scope of her statutory duties and it is easy to see why she would have thought it desirable to make some personal inquiries. But in my opinion, her willingness to undertake these additional duties did not thereby change and increase her responsibilities.

The allegation in para 1.14 is very important. It complains:

If the first respondent did read the Fergie report (a fact which is unknown to the applicants) the first respondent relied on the Saunders report and/or the Fergie report without knowing the contents of two envelopes allegedly containing secret information (''the secret envelopes'') forming part of the Fergie report because he was not allowed to read them and thus the first respondent was unable to form any view as to whether or not the material in the envelopes was credible, relevant and/or significant or whether or not the Saunders report, or that part of the Fergie report that he could read was fairly based on the same.

I will defer commenting on this subject for the time being; I will discuss it as part of the broader question of the extent to which the minister must personally involve himself in the decision-making process.

The complaint in para 1.17 that the minister failed to give the Chapmans ''any or any proper reasons'' for his decisions can be disposed of by pointing to the fact that s 13 of the AD(JR) Act gives aggrieved persons, such as the Chapmans, a remedy when a decision-maker supplies inadequate reasons: they did not avail themselves of that remedy. Curiously, having regard to this complaint, they fought vigorously to prevent the minister filing and using amended reasons. In my opinion, there is no merit in this complaint and it should be dismissed.

Section 13(3) of the Commonwealth Heritage Act empowers the minister to ''request such persons as he considers appropriate to consult with him ...''. This provision led to the Chapmans complaining in para 1.18 that the minister failed ''to appoint a mediator under s 13(3) of the Act despite the specific request that he do so''. The power of the minister to utilise s 13(3) is entirely discretionary. This is another example of the Chapmans assuming some form of opposition to their cause on the part of the minister merely because he did not agree with a course of action proposed by them. There is no substance in this complaint. Nothing has been adduced by way of evidence that would point to a failure on the part of the minister to comply with his duties as a consequence of declining to act in the manner requested by the Chapmans.

Paragraph 1.19 alleges bias on the part of Professor Saunders because her report ''suggested it was open to the first respondent to find that the area was a 'significant Aboriginal area' and a bridge amounted to a 'desecration' of that area'' yet she failed ''to suggest that it would also be open to the first respondent to find that there would be significant adverse affect [sic] on the pecuniary and proprietary interests of Binalong and others ...''. First, this does not accurately reflect what Professor Saunders said in her report about what was ''open'' to the minister and second, the subject of proprietary and pecuniary interests of the Chapmans and others was, in my opinion, adequately covered in the report. As to what was ''open'', the report contained the following passage:

In my view, if the minister is satisfied that the area is a significant Aboriginal area within the meaning of the Act, it is open to him also to conclude that construction of the bridge threatens injury or desecration of it.

In my opinion, this was a proper part of her reporting function. As to the remaining aspect of this complaint, it is sufficient to refer to s 7 of the professor's report entitled: ''The effects the making of a declaration may have on the proprietary or pecuniary interest of persons other than the Aboriginal or Aboriginals referred to in para (1)(a)''. That section comprised in excess of four pages; it was devoted substantially to the losses that the Binalong/Chapman group and others are likely to suffer in the event of the minister deciding to make a s 10 declaration.

The complaints in para 1.20 and 1.21 are that the reporter and the minister, respectively, failed to give the receivers and managers of Binalong adequate details of the claims of Aboriginals. The obligation to give such information will be considered when assessing the sufficiency of the notice that was inserted in the Gazette and the local newspaper. The complaint in para 1.22 is also better left to one side at this stage; it raises the question of the identification of the area of land that was at the heart of the dispute.

I have already given my reasons about the perceived inadequacy of the interviews between Professor Saunders and Mr Searle and others and why they were not a justifiable complaint; there is therefore nothing further that need be said about the complaints in para 1.23, 1.25 and 1.26.

Paragraph 1.24 also raised bias against Professor Saunders. According to the evidence of Mr Searle, he had said, during the course of an interview with Professor Saunders, that the Aboriginals were making unsubstantiated claims and that Professor Saunders allegedly replied:

Due to the ill-treatment of the Aborigines by our forebears perhaps this is pay-back time.

In her affidavit of 6 September 1994, Professor Saunders denied making any such statement and reaffirmed that denial orally in evidence. I am far from satisfied that Professor Saunders would have made such a provocative statement; she impressed me as an intelligent, articulate woman who was very conscious of the onerous task that she had undertaken. She was conscious of the emotive issues that the bridge had caused within many sectors of the community. She would not have made such a statement; it would have been entirely out of character. Having regard to some of the grounds of complaint that have been raised by the Chapmans, it is timely to say that I accept, without qualification, Professor Saunders as a witness of truth. She performed her tasks professionally, dispassionately and with competence. I reject the aspersions that have been cast on her and on the manner in which she performed her duties. There are areas in which I find myself unable to agree with her but they are matters of law; such disagreement does not reflect in any way on her integrity.

In para 1.27 it was alleged that the minister failed to inform the Chapmans that serious allegations had been made against Binalong by Aboriginals to the effect that the company had failed to notify the authorities of the discovery of skeletal remains within the marina development and that it had failed to consult Aboriginal persons. Although these were serious allegations they were not matters that would have formed part of the decision-making process of the minister. He was not to be influenced by the past behaviour (good or bad) of the developer; his concern was to exercise his discretionary powers within the scope of and for the purposes of the Commonwealth Heritage Act. Thus his decision-making process was guided by him being satisfied that an area of land is ''a significant Aboriginal area'' and that it was ''under threat of injury or desecration''.

Bias, or alternatively a reasonable apprehension of bias, was alleged against the minister because ATSIC ''advised the proponents for a declaration'' that in order to strengthen the position of the minister to make a declaration, they should provide evidence of ''cultural'' association of the site and further because ATSIC ''consulted the proponents for a declaration'' about the identity of the reporter as one who ''should be sympathetic to the Aboriginal people and their culture'': para 1.28 and 1.29. I see nothing wrong in ATSIC expressing a view to any party on what it considers would be necessary to obtain a declaration under the legislation; no fair minded observer could reasonably convert such a statement by ATSIC into a reasonable apprehension of bias on the part of the minister. Nor do I consider that the material that is before the court justifies the second of these complaints that constituted para 1.29. In a ministerial briefing dated 10 May 1994, ATSIC informed the minister that it had consulted ''the applicants'' (that is, the applicants for a declaration under the Commonwealth Heritage Act) about the identity of a reporter. Various names were mentioned but they did not include Professor Saunders. There is also in evidence a letter to the minister from LMAHC dated 18 May 1994 which included the passage ''it will be vital that you appoint a woman to carry out this review''. But there is no evidence that justified the complaint in para 1.29 that ATSIC ''sought (the applicants') approval as to such person, and accepted their requirements as to the sympathies of such person, including that such person should be sympathetic to the Aboriginal people and their culture''. That was a gross exaggeration.

It was also claimed in para 1.30 that the minister was biased because he had regard to whether the Commonwealth would be liable to pay compensation to claimants in the event of a declaration being made and because he inquired of ATSIC whether any of its funds would be available to meet any such claims. Far from this amounting to bias, it showed, in my opinion, that the minister was conscious of the seriousness of the matter and the likelihood of losses being incurred by a variety of people. It was very proper for him to weigh, in the balance, the extent to which the taxpayer might be required to contribute in the event of a declaration being made. It was within the ambit of his statutory obligation under s 10(1)(d) of the Commonwealth Heritage Act to consider ''such other matters as he thinks relevant''.

The complaint in para 1.31 that the minister prejudged the matter by reason of the fact that he discussed with an officer from ATSIC the possibility of a declaration for a period of 25 years and by reason of the further fact that he arranged for the preparation of a draft s 10 declaration before he received Professor Saunders' report, is not in my opinion, made out. On the contrary, it seems to me that the Chapmans' reaction to the minister's conduct in respect of these matters is some indication of how the Chapmans have prejudged the minister: it is a small example of how they have been prepared to place a sinister interpretation on what was a simple and practical expedient. As has been earlier stated, the minister and his advisers, together with the reporter, were working to a very tight schedule: if the final decision favoured a s 10 declaration, it was imperative that it be made in time to avoid a temporal gap after the expiry of the s 9 declaration. In the circumstances, it was both wise and practical for the minister and his staff to engage in these preparatory exercises so that, should the final decision favour a s 10 declaration, the time needed to implement the decision would be minimised.

Paragraph 1.32 alleged that the minister failed to give his South Australian counter-part a proper opportunity to respond to the Saunders' report. I do not see the Commonwealth Heritage Act imposing upon the minister any further obligation over his obligation to consult the state minister.

Paragraph 1.33 complained that the minister failed to give Mr McOmish adequate details of the claims of the Aboriginals. As I have already said, I will, at a later stage, address, at large, the adequacy of the notice to the public and to interested persons of the Aboriginal claims.

Bias on the part of the minister, or the appearance of bias at least, was raised once again in para 1.34. It was claimed that ''his administrative department'', namely ATSIC, recommended to him that he meet with the directors of Binalong ''not for the purpose of receiving and considering their views, and submissions, but for the purposes of 'seeking to avoid vexatious litigation' ''. This complaint does not fairly state the relevant facts. ATSIC had submitted a ministerial brief dated 13 May 1994. Its stated purpose was to provide the minister with briefing on correspondence from Mr Chapman and his solicitors. Mr Chapman sought a meeting with the minister to discuss Aboriginal consultants and the solicitors' correspondence had addressed questions of compensation including a claim of $47m in the event of a s 10 declaration being made. ATSIC discussed aspects of compensation, noted that the reporter would have to address the effects of a declaration on the proprietary and pecuniary interests of non-Aboriginals, and then concluded with the advice:

In terms of natural justice, and seeking to avoid vexatious litigation, ATSIC does see value in your agreeing to meeting with the directors of Binalong.

For what it is worth, the minister decided against meeting with the directors but I remain unable to see how such advice could give the appearance of bias.

Paragraph 1.35 raises, once again, a complaint of bias, or the appearance of bias, on the part of Professor Saunders. It was alleged that she had discussions with the minister or ATSIC, or both, with respect to the prospect of the Commonwealth having to pay damages in the event of a s 10 declaration being made. Far from constituting grounds for bias, any such discussions would be of vital interest to the minister. They may have been outside the reporter's brief (although arguably the reporter could have viewed the Commonwealth as a person whose pecuniary interests might be affected) but such discussions could not, in my opinion, give rise to any issue of bias.

The Chapmans' second complaint was that the minister failed to consult the South Australian minister for Aboriginal Affairs as required by s 13(2) of the Commonwealth Heritage Act; this alleged failure meant, so it was alleged, that procedures that were required by law to be observed in connection with the making of decisions were not observed by the minister. Section 13(2) provides, so far as it is relevant to these proceedings, that:

The minister shall not make a declaration in relation to an area... in a state... unless he has consulted with the appropriate minister of that state... as to whether there is, under a law of that state... effective protection of the area... from the threat of injury or desecration.

But a failure to so consult on the part of the minister may not be fatal because s 13(4) provides that such a failure ''does not invalidate the making of a declaration''. Furthermore, the obligation to consult was not one that addressed the broad question of whether the federal minister should, or should not, make a declaration: it was merely a question of addressing, in consultation with the state minister, whether, under a law of the state, there was effective protection of the area from the threat of injury or desecration.

In some respects, one might question why the federal minister would need to consult with the state minister about the effect of the state law: one might think that the relevant information would be available from conventional sources and from competent legal advice. But the answer seems to rest in giving to the state minister an opportunity to express his views on the effect of the state law. In Port Louis Corp v Attorney General of Mauritius (1965) AC 1111, Lord Morris of Borth-y-Gest, when delivering the advice of the Privy Council in relation to the meaning of the word ''consultation'' where used in s 73(1) of the Mauritius Local Government Ordinance said at 1124:

...the nature and the object of consultation must be related to the circumstances which call for it... The local authority must know what is proposed: they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties: they must be free to say what they think.

The issue of the bridge, as distinct from the issue of ''effective protection of the area'', was the subject matter of much correspondence between the federal minister and the state minister (and on occasions between the Federal Minister and the State Minister for Transport) throughout the period of March to July 1994. But an example of the federal minister addressing the question of protection in terms of state legislation appears at the end of his letter of 16 March 1994 to the state minister. This letter (to which reference has already been made) was valuable for several reasons; first it recognised the State Government's decision to proceed with the construction of the bridge; second, it recognised that Aboriginal concerns, at that stage, were still directed to the physical aspects of ''sites'' and their possible destruction, as distinct from the spiritual and cultural concerns that developed in the next month and which have come to be known as ''women's business''. Finally, the letter referred to the question of what protection is afforded ''these sites under state legislation''. In its last paragraph, the federal minister's letter stated:

I am also aware that the Aboriginal Legal Rights Movement, acting on behalf of the Lower Murray Aboriginal Heritage Committee, has sought your intervention pursuant to the State Aboriginal Heritage Act in relation to protecting sites identified at the approaches of the proposed bridge. Could you please advise me of the outcome of that request, and in particular what protection is afforded these sites under state legislation.

Although there is no express acknowledgment, I find that the state minister's letter of 6 April 1994 to the federal minister was an answer to the letter of 16 March 1994. The relevant extracts from that letter have already been referred to. That letter established, not only the ongoing commitment of the South Australian Government to the construction of the bridge, but also, its repudiation of the ''effective protection'' that might otherwise have been available to relevant areas through the use of s 24 of the State Heritage Act. That is the provision in the state legislation which empowers the state minister, in appropriate circumstances, to ''give directions prohibiting or restricting... activities on or in relation to the site or an area surrounding the site...''.

The question of ''protection'' was once more raised when the acting federal minister responded by letter dated 14 April to the state minister's letter of 6 April 1994. The acting minister wrote:

Accordingly the minister seeks your urgent advice on whether all newly located Aboriginal sites which arise during the second half of the Aboriginal sites survey, and all other information relevant to previously recorded sites, will be afforded due consideration under the protective provisions of the South Australian Aboriginal Heritage Act (1988).

The state minister's reply of 11 May 1994 specifically referred to the acting minister's letter of 14 April 1994, thereby indicating, in my opinion, that the consultative requirements of s 13(2) of the Commonwealth Heritage Act had been brought into operation and that the state minister had been given, and had taken, the opportunity to express his views on the question of the protective provisions of the South Australian legislation as well as on the bridge, its construction and its effect, or likely effect, on the Aboriginal sites.

In her representation to Professor Saunders pursuant to s 10 of the Commonwealth Heritage Act, the South Australian Minister for Transport, the Honourable Diana Laidlaw MLC, submitted that the South Australia legislation afforded appropriate protection and that ''further intervention by the Commonwealth minister under s 10 of that Act would be an unwarranted duplication of the comparable process which has been undertaken under the state legislation after a protracted and exhaustive examination of all relevant issues''. In my opinion, the issue of duplication clouds the matter unnecessarily. I do not believe that the federal minister is prevented from making a declaration under the Commonwealth Heritage Act if his inquiries reveal that there are provisions, which if implemented, would constitute effective protection of an area under state law; that would merely be a matter -- albeit an important matter -- to take into consideration in the exercise of his discretionary power. The prohibition against making the declaration is related to the failure to consult and not the existence of effective protection: and even a failure to consult does not invalidate the making of a declaration. If the state brings the effective protection into operation, then, but only then, must the federal minister revoke his declaration: s 13(5). I respectfully agree with the remarks of French J on this subject when he said in Tickner v Bropho 40 FCR 183 supra at FCR 224 ; ALR 450:

The reality is, I think, that it was intended by the legislation to allow the Commonwealth minister to intervene to protect a site in a case in which he or she took a view of the relevant public and private interests different from that taken by the state or territory minister.

I have therefore come to the conclusion that the second complaint must be dismissed.

The third complaint relates to the area or areas of land in respect of which protection under the Commonwealth Heritage Act was sought. The commencement point in a consideration of this issue was the first letter of the ALRM of 23 December 1993 to the minister seeking protection for:

... the two major camp site areas adjacent to the bridge approaches, and the sites on Hindmarsh Island as a whole, which are significant to Aboriginal persons and which are under the threat of injury and desecration by the construction of the proposed Hindmarsh Island Bridge.

Professor Saunders was alert to the question of the precise definition of the area for she said in her report, after noting the contents of the above mentioned letter of 23 December, that the ALRM's later letter of 7 April 1994, applying for an emergency declaration, referred to a ''significant Aboriginal area at Goolwa/Hindmarsh Island''. She further noted that the area was identified more precisely in a subsequent letter of 12 April as ''at least -- the area of the proposed bridge alignment between the Goolwa foreshore and Hindmarsh Island foreshore, together with the Goolwa channel between them'' including also portions of the foreshore on either side of the channel.

The emergency declaration that was made by the minister under s 9 of the Commonwealth Heritage Act on 12 May 1994 was precise as to the subject area. By use of map grid coordinates and an accompanying map it was abundantly clear that the relevant area of land and water was the bridge site and the immediate approaches to the bridge on the mainland and on the island. The bridge site therefore extended over the water that separated the two land masses. There was some confusion about the correct name of this piece of water but there is no doubt about the site in respect of which the two emergency declarations under s 9 were made.

Notwithstanding the precision in these two declarations, the instrument of appointment of Professor Saunders and the advertisement that appeared in The Advertiser and the Commonwealth Gazette were wholly devoid of any particularity. The instrument of appointment (which recited that the minister had received, on 23 December 1993, an application under s 10 of the Commonwealth Heritage Act) merely referred to the application in terms that it sought the preservation and protection of:

... a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island.

With this total lack of particularity, the instrument of appointment concluded with the advice:

I now appoint Professor Cheryl Anne Saunders to report to me in accordance with s 10(4) of the Act to enable me to consider whether under s 10(1) I may make a declaration in relation to the area . [Emphasis added.]

Although the trigger for the making of a s 10 declaration is an application by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area, I do not take that to mean that the application must be so detailed as to contain map grid coordinates; it would, in my opinion, be a sufficient description of a specified area if the application referred, for example, to ''the two major camp site areas adjacent to the bridge approaches'' -- that being the language of the first part of the letter of 23 December 1993 from the ALRM to the minister. A reference to ''the sites on Hindmarsh island as a whole'' would not, however, be a sufficient description and the reference, in the instrument of appointment, to ''a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) island'' was a wholly inadequate description by the minister of the land that, in terms of s 10 of the Commonwealth Heritage Act, had been the subject of an application for a permanent declaration. A reporter, in the position of Professor Saunders, had no ministerial guidance as to the land in respect of which she had to report. Her advertisement therefore suffered from the same lack of particularity. It only referred to:

significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island.

The advertisement then proceeded to state that the report would deal with:

(a)
the particular significance of the areas to Aboriginals;

(b)
the nature and extent of the threat of injury to, or desecration, of the areas;

(c)
the extent of the areas that should be protected;

(d)
the prohibition and restriction to be made in respect of the areas;

(e)
the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in para (1)(a);

(f)
the duration of any declaration;

(g)
the extent to which the areas are or may be protected by or under a law of a state or territory, and the effectiveness of any remedies available under any such law.

Those seven matters were, of course, the seven matters that are referred to in s 10(4) of the Commonwealth Heritage Act. But an ordinary member of the public living in the Goolwa/Hindmarsh Island area who read that advertisement would not know that it was, or that it might have been, referring to ''the two major camp site areas adjacent to the bridge approaches'', nor would he or she know that it was, or that it might have been, referring to ''sites on Hindmarsh Island as a whole'' or to ''women's business''. Indeed, the average member of the public would be justified in complaining: ''How can I make a representation without knowing what area it is that is said to be a significant Aboriginal area?'' This failure to give more particularity to the relevant area or areas is exacerbated by the fact that the area of land that was ultimately covered by the s 10 declaration was exactly the same as the land that was included in the s 9 declaration: it had the same map grid coordinates. It will be necessary to return, at a later stage of these reasons, to the problem arising from the insufficiency of this description of the relevant areas.

The grounds of complaint in para 4 of the application contain a variety of allegations, each of which was said to be the improper exercise of a power. The first two of these complaints were that ''the decision-makers'' (by which was meant the minister or Professor Saunders as the case may be) took irrelevant considerations into account and failed to take relevant considerations into account in making their respective decisions. Thereafter the allegations appear to track the paragraphs of s 5(2) of the AD(JR) Act, omitting only as a ground of complaint, any suggestion of bad faith on the part of either decision-maker. Section 5(1)(e) of the AD(JR) Act gives, as a ground of review:

That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

Subsection 5(2) of the AD(JR) Act provides that the reference in para (1)(e) to an improper exercise of a power shall be construed as including a reference to the nine subject matters that are then set out in the nine succeeding paragraphs. Those nine subject matters, linked to the paragraphs of s 5(2) and the grounds of complaint in para 4 of the application, are:

(a)
taking an irrelevant consideration into account in the exercise of a power :ground 4.1

(b)
failing to take a relevant consideration into account in the exercise of a power :ground 4.2

(c)
exercising a power for a purpose other than a purpose for which the power is conferred :ground 4.3

(d)
exercising a discretionary power in bad faith :No allegation

(e)
exercising a personal discretionary power at the direction or behest of another person :ground 4.4

(f)
exercising a discretionary power in accordance with a rule or policy without regard to the merits of the particular case :ground 4.5

(g)
exercising a power that is so unreasonable that no reasonable person could have so exercised the power :ground 4.6

(h)
exercising a power in such a way that the result of the exercise of the power is uncertain :ground 4.7

(i)
exercising a power in a way that constitutes abuse of the power :ground 4.8

Ms Layton QC, counsel for the minister and Professor Saunders, submitted that Professor Saunders' report, even though it was deemed to be a decision by virtue of the provisions of s 3(3) of the AD(JR) Act, did not constitute the exercise of a power. As a result, so it was submitted, neither her report, nor the contents of her report, nor any omissions on her part in the preparation of her report, were reviewable under s 5(1)(e) and 5(2) of the AD(JR) Act. The argument that was advanced by Ms Layton, and which I find persuasive, is that Professor Saunders was not exercising a power under the Commonwealth Heritage Act when she compiled her report: rather she was performing a statutory function or duty so that the minister might in turn, exercise the power that he undoubtedly had under that legislation. I accept the submission that the exercise of a power requires that there be actions, or absence of actions, which impinge upon the rights of an individual, which might deprive a person of an advantage or a benefit and which require a decision-maker to apply his or her mind to two or more competing propositions. The report of Professor Saunders, in so far as it is a decision for the purposes of the AD(JR) Act, is reviewable under other provisions of s 5 of that Act but not, in my opinion, as an improper exercise of a power.

However, in case I should be wrong, I will list the complaints that have been brought against Professor Saunders under this paragraph and deal with them. The first such matter, (para 4.1.1) is that she ''apparently accepted the equivocal, untested, and speculative comments in the Fergie report ...''. The next (para 4.1.2), is that she took into account the fact that the preservation of the area may be a cause of cultural regeneration of young Ngarrindjeri women. The first of these complaints was contradicted by the evidence and the second showed a failure to appreciate the purposes of the Commonwealth Heritage Act. Professor Saunders made it clear that she personally sought and obtained the views of the Aboriginal women. This was emphasised, in her report as well as in her affidavit and oral evidence. Admittedly she referred to the Fergie report but so also did she refer to other anthropological and archaeological reports that were listed in her report.

Reference has already been made to the purposes of the Commonwealth Heritage Act. It seems to be stressing the obvious, but having regard to the existence of the complaint I state my conclusions that cultural regeneration can only be advantageous to the preservation of Aboriginal tradition which tradition, in turn, identifies the areas of particular significance to Aboriginals. In the long term, there might be a real risk that areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition might be lost if young Aboriginals are not taught those traditions.

The next complaint is against the minister: para 4.1.3. In a media release dated 12 July 1994 the minister, by his opening paragraphs, made it clear that he was engaging in a political contest with the South Australian Premier. He said:

Premier Brown's statements are deeply regrettable and are an irresponsible attempt to whip up wider community hostility against the deeply held spiritual beliefs to cultural heritage of Aboriginal women, the nature of which were independently reported to me by Professor Cheryl Saunders.

The premier would not dare to disparage the spiritual beliefs of other South Australians in the same way he has disparaged those of Aboriginal women.

That was the context in which the minister later said in the same press release:

A key reason for the granting of the Commonwealth declaration was the failure of the South Australian Government to adequately consult Aboriginal women about the bridge project and as a result of inadequate consultation its failure to adequately protect these sites under South Australian law.

Notwithstanding its syntax, it is not difficult to see that the true measure of the minister's complaint was the alleged failure to protect adequately the relevant sites: the claimed reason for this failure was said to be the failure of the South Australian Government to consult Aboriginal women adequately about the bridge project. But the Chapmans, choosing to refer only to that part of the quoted passage which, so they thought, might assist their cause, inappropriately alleged that the minister ''took into account'' the failure of the South Australian Government adequately to consult Aboriginal women as part of his decision-making process. It was not accurate to express a complaint in those limited terms. When regard is had to the full passage in the media release there is no justification for the complaint that the minister took an irrelevant consideration into account.

The next complaint, para 4.1.4, is that Professor Saunders met with and ''heard the views'' of representatives of the Conservation Council of South Australia and of the South Coast Peace and Environment Group ''notwithstanding that matters relating to the environment were irrelevant considerations''. There are several answers to this complaint, the most telling being than it would have been pre-judgmental and wrong of Professor Saunders to refuse to receive a written representation because of the identity of the representor; she would not know whether the contents of the representation would, or would not, be relevant to the matters upon which she had to report until she had considered the contents of the representation. By parity of reasoning, the same observations can be applied to the personal interviews: Professor Saunders would not know whether the oral representation would, or would not, assist her until she had heard them. The next answer to the complaint is that there was nothing in Professor Saunders' report that would lead to a conclusion that ''matters relating to the environment'' were given impermissible weight in her deliberations. Finally, there are grounds for holding that, in appropriate circumstances, environmental issues might play an important part in the performance of the reporter's duties and the final decision-making process of the minister. One of the subjects upon which the reporter must report is ''the extent of the area that should be protected'': s 10(4)(c) of the Commonwealth Heritage Act. It is not difficult to envisage extraneous matters touching upon the ecology and the environment being raised under this heading; the making of a declaration might have a beneficial or a harmful ecological or environmental effect upon a particular area and such an effect could thereby become a matter for the proper consideration of the minister.

Paragraphs 4.1.5 and 4.1.6 complain that the minister and Professor Saunders respectively took into account whether or not the Commonwealth would be liable to pay compensation to people who were adversely affected by a decision that prevented construction of the bridge. It was said that this was an irrelevant consideration. As to the minister, I have a contrary view; I refer to my earlier remarks when considering the question of bias. Section 10 does not contain specific criteria to which the minister must direct his mind before making a declaration. Unlike s 10(4) which directs the reporter to ''deal with'' the seven identified subject matters plus ''such other matters (if any) as are prescribed'' (s 10(4)(h)), s 10 only requires the minister to have the required state of satisfaction as to area and threat, to consider the report and the representations and to consider ''such other matters as he thinks relevant''. Save that the subject of relevancy must be assessed by having regard to the purposes and objects of the legislation, I have no difficulty in concluding that it would be relevant to the decision to make a s 10 declaration to inquire whether there would be any financial repercussions to the Commonwealth as a result of the declaration and, if so, the likely amount; after all s 28 of the Commonwealth Heritage Act requires the Commonwealth to pay compensation if a declaration ''would result in the acquisition of property'' otherwise than on just terms.

The financial commitments of the Commonwealth as a consequence of a s 10 declaration might not be a subject matter upon which a reporter has a statutory duty to report, but the mere inclusion of a reference to such a subject matter would not thereby invalidate a report. I refer to my earlier comments when considering the complaint of bias in para 1.35. It behoves a complainant, such as the Chapmans, to prove, that the decision-maker took an irrelevant consideration into account to a degree sufficient to affect the decision-making process. There was, in the present case, no such evidence; the professor's report was silent on the subject and nothing in the evidence or in the exhibits pointed to a reliance by her on this issue. For completeness, I would add that this complaint, if made out, would be one which would attract the use of the discretionary powers of the court that are contained in s 16 of the AD(JR) Act. Even if Professor Saunders had taken, as an irrelevant consideration, this question of compensation into account in the compilation of her report, it would not be an error of such a nature as to attract the intervention of the court.

I turn now to the allegation in para 4.2 of the application where it is alleged that either the minister or the professor failed to take relevant considerations into account in the making of their respective decisions. There are 25 numbered subparagraphs but several of those contain two or more complaints. As a result there are said to be 42 such omissions on the part of either the minister or the professor. Some of the allegations that are contained in para 4.2 are very serious and warrant detailed consideration. However, a great number of them must be cast aside as no more than spurious allegations that were unsubstantiated by the evidence, and, in some cases, contradicted by the evidence. Other complaints attempted to raise a debate about the merits of the subject matter of Professor Saunders' report. Save for questions of unreasonability and absence of evidence, that is not a topic upon which this court can adjudicate. For example, in para 4.2.1 it is alleged that Professor Saunders ''suggested that Aboriginal women had not been consulted by Binalong'' when, in fact, there was evidence of such consultations. Let it be assumed that this allegation was supported by the evidence: that would not advance the Chapmans' cause because the presence or absence of prior consultations between the Chapmans and Binalong on the one hand and Aboriginals on the other hand played no part in the compilation of Professor Saunders' report. In para 4.2.5 it was claimed that Professor Saunders failed properly to take account of several factors, one of which was said to be:

... the fact that the claims of Aboriginal women had been raised for the first time in about April 1994 and also the failure of any Aboriginal woman at all to oppose the bridge in the 4 years up to October 1993.

This was, no doubt, a subject that was viewed with a high degree of suspicion by supporters of the bridge; there were suggestions that it was a claim of convenience and a subject of recent invention. But Professor Saunders addressed that subject in her report; she noted that there had been ''belated recognition that the area may have particular significance for reasons within the knowledge of Aboriginal women...''. It must of course be recognised that if the reporter had erroneously stated that there had been no such consultations and if, by some means, that erroneous statement influenced, to a sufficient degree, an important element in her report, then there may be cause that would justify the intervention of the court; but that is not the case with respect to this issue.

The complaints of the Chapmans as detailed in para 4.2.5 encompassed, in addition to the late disclosure of the claims by the Aboriginal women, complaints that Professor Saunders failed properly to take account of other matters such as earlier knowledge of the proposal for the bridge by some Aboriginal women, admissions by other Aboriginal women that they had only recently become aware of the significance of the area, the apparent inconsistency in the fact that Aboriginal women were not opposed to the extension of the marina development, and so on. Likewise, there was a complaint in para 4.2.6 that she failed to take any, or any sufficient account, of the views of the Campbell clan. In my opinion Professor Saunders did take account of those matters. Her findings and conclusions, as contained in her report, were open to her on the information that had been placed before her or otherwise gathered by her. Another reporter might not necessarily have come to the same conclusions as those arrived at by the professor; but that is not a subject that is open to inquiry by this court.

I am of the opinion that none of the complaints in para 4.2.5 justify the intervention of this court. However, passing reference should be made to the issue concerning the report of Mr S J Jacobs QC. That report had been commissioned by the South Australian Government so that the government might be apprised of its legal and financial obligations with respect to the bridge; it contained no reference to women's business but Professor Saunders, in her report, incorrectly stated that:

quote>

The final aspect of significance of the area, identified also by Mr S J Jacobs in his report to the current government as potentially the most serious, involves the secret knowledge of women. [Emphasis added.]

In evidence, she acknowledged her mistake. If the words ''also by Mr S J Jacobs in his report to the current government'' were expunged, the passage would fairly and reasonably reflect the professor's personal conclusions. Whilst they may be unpalatable to the Chapmans, they would not be open to attack in this court. The unnecessary (and erroneous) reference to the Jacobs's report would not, in this context, vitiate the professor's conclusions. The complaint was that Professor Saunders failed to take account of the fact that Mr Jacobs ''had not identified any 'women's business' issue'' in his report; one would have thought it more appropriate to complain that the professor had referred inaccurately to the Jacobs' eport and thereby had taken on irrelevant consideration into account. In either event, my conclusion would be the same.

I return to para 4.2.2 and the complaint that the minister failed to take into account ''a brief critique of the Fergie report prepared by Dr Lindy Warrell''. The minister had no obligation to consider this subject unless it was a representation that was attached to Professor Saunders' report or unless it was a matter that he considered relevant. In any event, the only evidence on the timing of the receipt of this critique points to it being received in the minister's office after he had made his decision: see the affidavit of Ms Kee where she states that on Saturday 9 July 1994 at approximately 11.15 am EST the minister advised her that he had decided to make the s 10 declaration; the complaint alleges that the critique was sent to the minister by facsimile transmission at about 2 pm that day.

Paragraph 4.2.3, which is set out below raises, once again, the difficult question of the secret envelopes. The complaint is:

The first respondent failed to take into account any part of the Fergie report. Alternatively he failed to take into account material forming part of the Fergie report and contained in the secret envelopes because he was not allowed to read such material when such material allegedly contains the reasons the area is a significant Aboriginal area and the reasons why a bridge allegedly desecrates that area, the very issues the first respondent was to decide.

It may, or may not, be correct to say that the minister ''failed to take into account any part of the Fergie report;'' that is a matter which can be addressed when considering what is meant by the term ''and has considered the report and any representations attached to the report'' appearing in s 10(1)(c) of the Commonwealth Heritage Act. It is however, a fact, that the minister did not read the contents of the secret envelopes; the question then arises whether the minister should have read, or otherwise considered, them. The evidence on this subject is, generally, that of Ms Kee who explained that having obtained permission, she read the contents of the secret envelopes and thereafter informed the minister that there was nothing contained within those enclosures which did not support the information contained in the Saunders report concerning the nature of the significance of the area to the Ngarrindjeri women''.

In a media release dated 13 July 1994 a statement was attributed to the minister in these terms:

... suggestions that my decision was based on the contents of envelopes which I had not read are not true.

Grammatically, this sentence is constructed in such a way that one possible inference is that the minister had read the contents. Obviously that was not its intended meaning: I do not believe that there is any doubt that the minister was intending to say that the contents of the secret envelopes played no part in the making of his decision. That interpretation is supported by the minister's comments in a television interview, the video and transcript of which were tendered in evidence. In response to a question:

So this secret envelope that men are not allowed to see is not at the core of this decision?

The minister replied:

Absolutely irrelevant to my decision on this issue.

This statement and the media release can be regarded as compatible with the information that was included in the first s 13 statement of reasons for the s 10 declaration under the heading ''reasons for my decision''. The minister had merely said that he had considered, without specifying them, ''the matters placed before me''. But the position becomes confused when regard is had to the information that was included in the amended reasons. Under an identical heading the minister stated:

I considered the matters placed before me, in particular Professor Saunders' report which describes the significance of the area, including the depth and conviction with which the Aboriginal women of the region hold and maintain their spiritual and cultural beliefs for the area, and the profound importance that preservation and protection of the area would have for their personal and spiritual well being and for the protection and continuation of their cultural heritage. I was satisfied that the area was a significant Aboriginal area within the terms of the Act. I was also satisfied that the area was under threat of injury or desecration as a result of the intent of the South Australian Government to proceed with construction of the proposed Hindmarsh Island Bridge. I considered the effects that a declaration might have on the interests of persons other than the Ngarrindjeri people, which I accepted as being substantial, however, I decided that taking into account the purposes of the Act set out in s 4, in all the circumstances I should give greater weight to the spiritual significance of the area to Aboriginal people, particularly Aboriginal women, and accordingly I should make a long-term declaration under s 10 of the Act.

It would not be unreasonable to conclude that the spiritual and cultural significance of the area to Aboriginal women was a dominating factor in the minister's reasoning process. Yet the detail of that spiritual and cultural significance was told orally to Professor Saunders and not repeated in her report and otherwise was sourced (in written form) in the secret envelopes which were annexures to the Fergie report. That report was, in turn, included as a representation that accompanied the Saunders' report. Ms Kee had read the contents of the secret envelopes but had only assured the minister that there was nothing in them that was inconsistent with Professor Saunders' report.

If therefore, at the evidentiary level, the amended reasons are taken at face value, it would seem that the minister was strongly influenced in reaching his decision because of his willingness to accept (without checking or testing) his reporter's advice about ''the depth and conviction with which Aboriginal women of the region hold and maintain their spiritual and cultural beliefs for the area, and the profound importance that preservation and protection of the area would have for their personal and spiritual well-being and for the protection and continuation of their cultural heritage''. I will defer, for the time being, a consideration of the critical question: if the women's business was such a dominating feature in the minister's decision-making process did his failure to consider the contents of the secret envelopes constitute an abrogation of his responsibilities? Or, did the minister say that the contents of secret envelopes were irrelevant to his decision because he was able to rely, and did rely, upon what Professor Saunders had said in her report and upon the advice that Ms Kee had tendered.

There was no para 4.2.4, and para 4.2.7 was abandoned; para 4.2.8 which alleged a failure by Professor Saunders to read a submission of the District Council of Port Elliot and Goolwa was not proved and para 4.2.9, for reasons earlier given is without substance: it alleged that Professor Saunders failed to give personal interviews to certain people. Paragraph 4.2.10 is also without substance; it complained of a failure by one or other of the decision-makers to give the Chapmans copies of various reports and their failure to give them the opportunity to respond to certain reports and to the oral evidence of the Aboriginal women. In my opinion, for the reasons already given, the Chapmans were not entitled to any of these.

Paragraph 4.2.11 referred to Dr Deane Fergie and complained that one or other or both decision-makers failed to take proper account of the fact that her report could not be regarded as independent and impartial. The particulars that were advanced in support of this complaint had no foundation; for example it was said that Dr Fergie's report could not be regarded as independent and impartial because, inter alia, she was married to their company's Aboriginal Heritage consultant, Dr Rod Lucas.

Paragraph 4.2.12 addressed the subject of the area or areas of significance and can be deferred for later consideration.

Paragraph 4.2.13 complained that one or other of the decision-makers had failed to take account of the extensive consultations between Binalong and its advisers on the one hand and Aboriginals (including Jean Rankine, a senior Ngarrindjeri woman) on the other hand in 1989-1990. The short answer to this complaint is that there was no need to take those consultations into account unless, by their content, they were relevant to the decision-making process. The onus was on the Chapmans to establish that relevance; they did not do so.

It was claimed in para 4.2.14 that one or other or both decision-makers had failed ''to take account of the several clearances for bridge construction given by South Australian Aboriginal heritage authorities on 12 April 1990, 8 May 1992, 9 November 1993 and 3 May 1994''. I find it difficult to understand how anyone who had read Professor Saunders' report could conceive of such a complaint. The following passage from the first page of the report is enough to lay this complaint to rest:

The proposal for the bridge originally emerged as a condition of planning approval for the construction of a marina complex on Hindmarsh Island by Binalong Pty Ltd. The then State Government appears to have taken the view that greater use of the island in consequence of construction of the marina would necessitate more ready access to it than the current ferry service, already subject to criticism, could provide. By a quirk of circumstance, the obligation to construct the bridge since has been assumed by the State Government. The planning and approval processes have been protracted and acrimonious. The start of construction was postponed in late 1993 when Aboriginal heritage issues became prominent. On 3 May 1994, the State Minister for Aboriginal Affairs authorised interference with Aboriginal sites to whatever extent was necessary for the construction of the bridge, under s 23 of the Aboriginal Heritage Act 1988.

In para 4.2.15 it was claimed that the minister failed to take any account of the fact that there was a dispute as to the identity of the Aboriginal persons who were entitled to claim that the area was a significant Aboriginal area; it was also claimed in this ground that Professor Saunders failed to take proper account of that dispute. The Commonwealth Heritage Act, unlike the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title Act 1993 (Cth) is not directed to concepts of use, occupation or ownership. For example s 4 of the Land Rights Act empowers the minister to establish a trust to hold title to land for the benefit of Aboriginals who are entitled to the use and occupation of the land. Section 50 of the same Act defines the functions of an Aboriginal Land Commissioner as including the ascertainment of the identity of ''the traditional Aboriginal owners of the land''. In the Native Title Act 1993 (Cth), s 223 refers to ''native title'' and ''native title rights and interests'' as meaning ''the communal, group or individual rights and interests of Aboriginal peoples ...''. But the Commonwealth Heritage Act, in pursuing the preservation and protection from injury or desecration of areas, makes no reference to use, occupation or ownership. It is sufficient to set the declaratory process in motion if the minister receives an application ''by or on behalf of an Aboriginal or a group of Aboriginals''. And the minister's measure of satisfaction, in terms of area, is limited to one that is a ''significant Aboriginal area'', a term that is defined in s 3 of the Commonwealth Heritage Act as meaning an area of land or water that is of ''particular significance to Aboriginals in accordance with Aboriginal tradition''. There is no connecting link between the area and the Aboriginals or between the area and Aboriginal tradition that relies on use, occupation or ownership. In my opinion, it was not to the point that there may have been competing Aboriginal claimants with respect to areas that were said to be areas of significance to Aboriginals.

For the reasons set out above (when considering the complaint in para 4.2.15 with respect to ''the identity of the Aboriginal persons entitled to claim'') I do not consider that there was any obligation on Professor Saunders to identify the ''traditional owners'' of the areas that were the subject of her report; this finding therefore disposes of the complaint in para 4.2.16.

Paragraph 4.2.17 raised the issue of the effectiveness of state legislation and whether it afforded protection to the relevant area. That was a specific matter that had to be dealt with by the reporter. The Chapmans argued that the State Heritage Act contained effective provisions for the necessary protection for any area that was a significant Aboriginal area; they claimed that the failure of the state minister to invoke the protective provisions did not thereby mean that there was no state protective provision or that the state protection was ineffective. I disagree. Section 10(4)(g) of the Commonwealth Heritage Act required the reporter to deal with ''the extent to which the area is or may be protected by or under a law of a state or territory, and the effectiveness of any remedies available under any such law''. Professor Saunders considered this issue in detail in her report. It is, in my opinion, sufficient to quote the following extract from her report:

The general coverage of the State Act is affected by the exercise of discretion by the state minister to, for example, authorise interference with an Aboriginal site under s 23. This discretion was exercised by Dr Armitage on 3 May 1994, to authorise any damage that would necessarily be incurred in connection with the construction of the bridge. It follows that the short answer to this term of reference is that the area may be protected under the state law and when it is, the remedies in fact are effective, but that on this occasion it is not protected in fact.

This conclusion, with which I agree, also accords with the contents of the second reading speech when the legislation was introduced into the House. The minister of the day said that lack of protection may arise from either an absence of effective legislation or an unwillingness to enforce the provisions of legislation capable of meeting the goals of the Bill: Hansard 9 May 1984 p 2131. In my opinion this ground of complaint must be dismissed.

The complaint in para 4.2.18 that the minister failed to consider the effect of the s 10 declaration on the pecuniary and proprietary interests lacks support save only for the fact that there was no specific mention of the subject in the first s 13 statement of reasons, a factor that is highlighted by the presence in the amended s 13 statement of the passage:

I considered the effects that a declaration might have on the interests of persons other than the Ngarrindjeri people, which I accepted as being substantial.

On the other hand, the minister did state, in both the first and the amended statement of reasons that the evidence or other material on which his findings were based included the report by Professor Saunders and her report addressed this subject in detail. The Chapmans have not satisfied me that the minister failed to give consideration to this issue.

The complaint in para 4.2.19 that the source of the s 10 declaration was the failure of the South Australian Government to consult with Aboriginal women has already been dealt with and the submissions in para 4.2.20 and para 4.2.22 that the Fergie report was not a critical analysis of the claims of Aboriginal women and that Doreen Kartinyeri was an inadequate source of information would not, assuming the allegations to be accurate, be of any consequence. In like manner, the complaint in para 4.2.23 must be rejected. It complained that ATSIC met with a delegation from LMAHC on 9 December 1993 who tendered advice to ATSIC that ''they did not dispute that the bridge construction would not destroy any known Aboriginal site''. The complaint that neither decision-maker took account of this matter is not made out on the evidence. There is evidence that ATSIC informed the minister of the submission in a briefing paper dated 22 December 1993 which admittedly, was well before 12 May 1994, the date of the first s 10 declaration. But that, without more, would not justify an inference that the minister had not considered the matter. There was no evidence that any written or oral representation on the subject was presented to Professor Saunders and it ill-behoves the Chapmans to complain that she did not consider an issue when they have not established that it had been brought to her attention.

The complaint in para 4.2.21 was that the minister had failed to consider the submissions from the applicants and from other interested parties. I will discuss this complaint when I come to discuss the meaning of the word ''consider''.

As I understand the complaint in para 4.2.24, the decision-makers failed to take into account that Aboriginals had made false complaints about the recommended consultative process ''as part of the planning approval for the bridge''. Once again, the evidence failed to justify such a finding. Even if it had been proved, the Chapmans would not have been able, in my opinion, to establish that such a failure would have affected the decision-making process. The final complaint with respect to the alleged failure to take relevant considerations into account raised in para 4.2.25, once again, the subject of the veracity of the claims that were based on women's business. But as I have earlier held, it was the province of the reporter to assess these claims. It was within the scope of her brief, having regard to the facts that were put before her, to conclude that the information that had been given to her reflected accurately a spiritual and cultural connection with the bridge site which was oth sacred and secret to women. Short of the Chapmans providing the non-existence of those facts (and this they failed to do), there is no power in this court to review that finding.

Paragraph 4.3 of the application has alleged that the minister made his decisions for purposes other than those for which the power to make them was conferred. First, it was said that the minister made the s 10 declaration ''for political reasons''; those reasons were allegedly a Federal Government objective of encouraging reconciliation between the Aboriginal and white peoples of Australia'' and the ''redressing [of] 'the legacy of disadvantage' of Aboriginals''. Second, it was said that the minister exercised his power for ''the purpose of redressing the alleged failure referred to in para 4.1.3'': that referred to the media release of 12 July 1994 and the reference to the failure of the South Australian Government adequately to consult Aboriginal women. The reasons for rejecting the complaint in para 4.1.3 apply with equal force to this latter complaint. As to the first of them and the alleged ''political reasons'', I can find neither evidence nor submissions which was directed to this issue. The reference to this subject in the principal submissions of the Chapmans to Professor Saunders was only conjecture on their part.

The subject of the secret envelopes was raised, once again, in para 4.4.1 of the application. The Chapmans complained that the minister, in making his decision, exercised a personal discretionary power ''at the direction or behest of another person''. This is, of course, the language of s 5(2)(e) of the AD(JR) Act and is but another way of submitting that the making of the decision was (in terms of s 5(1)(e) of that Act) an improper exercise of a power. This complaint, which was limited to the s 10 decision, does, however, raise the additional feature of the minister's need to involve himself personally in the decision-making process. The complaint, as particularised in the application was as follows:

The first respondent was denied access to the material in the secret envelopes and was thus incapable himself of forming any view as to the credibility, relevance and/or significance of such material, and the s 10 declaration therefore amounted to an acceptance of the suggestions of the second respondent as to the same without any exercise of his own personal discretionary power.

This complaint will be considered at a later stage of these reasons. Paragraph 4.4.2 repeated the grounds of complaint in para 4.3.1; as the latter was abandoned, I have treated the former as also abandoned.

The conduct and the motivations of the minister that were the subject of complaint in para 4.3 were repeated in para 4.5 with the claim that, in the exercise of a discretionary power, the minister acted in accordance with a rule or policy without regard to the merits of the particular case. This complaint has failed for the reasons that were identified when considering the complaint in para 4.3.

Next, it was alleged, in para 4.6 that one or other or both the minister and the professor, in making his and her decisions, engaged in an improper exercise of a power in that the exercise of the power was so unreasonable that no reasonable person could have so exercised it. First, it was said in para 4.6.1 that there was ''no basis for it to be reasonable for [the professor] to suggest, and [the minister] to find, that a bridge would amount to a 'desecration' of a significant Aboriginal site''. Alternatively, it was put that there was no sufficient probative evidence for the professor suggesting and the minister finding that the bridge would desecrate the site (para 4.6.2) and that a reasonable person would have found that there was no sufficient explanation as to why there would be a desecration when other features such as the barrages and the ferry were not considered to amount to a desecration (para 4.6.3). The concept of unreasonability was extended in para 4.6.4 and para 4.6.5 to Professor Saunders' reliance of the Fergie report; it is said that she gave too much weight to it and that she relied on it without permitting the Chapmans access to it. Finally, it was said in para 4.6.6. that it was unreasonable for the minister to make a declaration in light of advice to the contrary from ATSIC.

The basis upon which a court can intervene in the decision-making process, on the ground of unreasonability, as set out in s 5(2)(g) of the AD(JR) Act is now the statutory expression of the ''Wednesbury principle'': Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223. The onus is on the Chapmans, as the complaining parties, to establish that the challenged decision, when looked at objectively, is ''so devoid of any plausible justification that no reasonable person could have taken this course...'': Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 ; 65 ALR 549 at 562 per Wilcox J; see also Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 at 433-4 ; 11 ALN N120 Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 and Wouters, Wright & Holmes v DCT (1988) 20 FCR 342 at 352 ; 16 ALD 546 at 547 where the full court quoted with approval the comment made by Lord Hailsham LC in Re W (An Infant ) [1971] AC 682 at 700:

Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with his own.

The Commonwealth Heritage Act gives an expansive meaning to the concept of injury and desecration as well as to the meaning of the word ''threat''. In s 3(2)(a) of the Act it is provided that an area shall be taken to be injured or desecrated if:

(i): it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii): by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
(iii): passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition;...

And s 3(3) states that, for the purposes of the Act, an area shall be taken to be under threat of injury or desecration ''if it is, or is likely to be, injured or desecrated''.

Thus, neither the professor nor the minister needed to be satisfied that injury or desecration in a conventional or western sense would occur: it would be sufficient if there were a likelihood of either in terms of Aboriginal tradition. The work of Professor Saunders in her performance of her voluntary and statutory functions was, in the first instance, a fact finding exercise; thereafter, she was required to compile her report (which was to deal with the seven topics listed in s 10(4)). That latter exercise required her to express her opinion on those subjects. The combination of a fact finding exercise coupled with the expression of her opinions is not one which readily leads to a review by a court under the AD(JR) Act unless for example, the complainant can establish that the decision was said to be based on the existence of a fact and that fact did not exist or it is self evident that the decision was devoid of any plausible justification. In this case Professor Saunders was obliged to give due consideration to the representations that were submitted to her; she was also entitled to give such reliance as she reasonably thought appropriate to the reports of the various experts (including Dr Fergie). The weight that Professor Saunders gave to one or other of the representations and reports was a question for her personal judgment. The Chapmans have failed to establish the requisite degree of unreasonability. There was evidence from Aboriginal women to which Professor Saunders was privy and this evidence undoubtedly influenced her. In her report she said:

The knowledge was conveyed to me directly by the meeting of Ngarrindjeri women on 20 June 1994, in general terms and finally, more specifically, by Doreen Kartinyeri at our subsequent meetings. At separate meetings and discussions it was also conveyed to Dr Fergie, who provides context for it and some interpretation of it in her report to the ALRM. By tradition, this is knowledge which the women were reluctant to divulge. By tradition also, it cannot be divulged to men.

In essence, the Ngarrindjeri women regard the Murray Mouth area in general and Hindmarsh and Mundoo Islands and the surrounding and separating waters in particular as crucial for the reproduction of the Ngarrindjeri people and their continued existence. This tradition is not mythological but spiritual and an actual reflection of traditional practice, handed down from mother to daughter, drawn out of the landscape itself: in the words of Doreen Kartinyeri, ''this is not just a dreaming it's a reality''. A more comprehensive account of the tradition and the practices associated with it were conveyed to me and to Dr Fergie, separately, reluctantly and in confidence. Dr Fergie's detailed account of her discussions with Doreen Kartinyeri and a preliminary analysis of its significance for Ngarrindjeri cosmology are attached as confidential appendices 2 and 3 to her report which in turn is attached to the supplementary representation of the ALRM. Her discussions with Doreen Kartinyeri essentially mirrored my own. Those confidential appendices are included in envelopes and should not be read by men. One manifestation of the significance of the area is concern on the part of the older women, with direct knowledge of the tradition, about undue disturbance of the island. Thus Doreen Kartinyeri recalled her Auntie Rosie being warned when visiting the island to stay on the road and not to let the crutch which she used sink into the ground. It may be that a story retold to me by Kym Denver, an island resident, about an Aboriginal who preferred to take his canoe around the island rather than ride his bicycle across it ''for superstitious reasons'' reflects the tradition as well. Dr Fergie also noted the attitude of Connie Roberts, during the visit to the island on 20 June, who was ''disturbed by the willingness of other Ngarrindjeri women to walk around anywhere on the island, without knowing whether they were on ground which they should avoid. This physical respect for the island adds to the concern of the women about the impact on it of construction of the bridge, including the effect of construction on the bed of the Goolwa channel."

The reluctance of the women to impart this knowledge to me and their concern that it might be passed on to a man was simultaneously an indication of its importance and a partial destruction of it. This hesitation was described earlier and is the subject of further analysis in Dr Fergie's report. Throughout our discussions, there was evident concern about whether the decision to impart the knowledge to me was right. Doreen Kartinyeri, for example, expressed anxiety that if anything happened to her, it would be said to be because she had divulged the knowledge to me.

This extract from her report shows that Professor Saunders formed the view that the tradition was ''spiritual and an actual reflection of traditional practise, handed down from mother to daughter...''. In other words, she obviously formed the opinion that the tradition was authentic. In my view, Professor Saunders has acted appropriately and with propriety; her conclusion was open to her on the information that was before her. I reject the proposition that she acted unreasonably.

The position with respect to the minister is different -- not in any sense because of unreasonable conduct in the Wednesbury sense on his part but because, once again, the spectre of the secret envelopes has been raised. There was material before him in the form of Professor Saunders' report, which, arguably, was sufficient to justify a conclusion that the bridge would amount to a desecration of a significant Aboriginal site; it was not for the minister to investigate personally the sufficiency of the explanation that had been made by the Aboriginal women; that was not part of his statutory function. Putting to one side, the issue of the minister not considering the contents of the secret envelopes, the complaint that the minister's exercise of his powers was unreasonable has not been made out.

In particular, his apparent decision to not follow the advice of ATSIC showed that he was aware that he was the ultimate decision-maker.

The complaint in para 4.7 was lengthy and complex but, subject to one important aspect, I feel that it can be disposed of summarily. It was said that the minister, in making his decision, exercised a power in such a way that the result of the exercise of the power was uncertain. In support of this complaint, the Chapmans correctly pointed to some confusing material about the extent of the area that was said to be a significant Aboriginal area. This complaint was sourced in s 5(1)(e) and 5(2)(h) of the AD(JR) Act. Those provisions have the effect of identifying as an improper exercise of power, a power that is exercised in such a way that ''the result of the exercise of the power is uncertain''. In this case, the result of the exercise was, in fact, very certain. The confusion about the relevant area did not permeate through to the s 10 declaration; that declaration, by use of grid references and a map, showed, with abundant clarity, that ''the result'' of the exercise of the power was that for a period of 25 years there would not be any acts of a proscribed nature in the defined area without the consent of the minister. This complaint must be dismissed.

The important aspect in para 4.7 is that contained in para 4.7.5 where the Chapmans complained that the initial application to the minister to invoke the provisions of the Commonwealth Heritage Act related to the two camp sites. But, so they claimed, the minister, in making his decision to make a declaration did so on the basis of ''protection of an area of particular significance to Aboriginal women''.

I regard this complaint as raising for consideration the question of the sufficiency of the notice that Professor Saunders inserted in the press: cf the complaint in para 1.7 of the application of Messrs Barton and Knott and the Chapmans' further complaint in para 5.3 (infra).

The grounds in para 5.1 and 5.6 both referred to the subject of state law and whether the area was, or may have been, protected under state law and the effectiveness of any remedies available under that law. I have already dealt with this subject earlier in these reasons and there is no need to repeat what I have said.

In para 5.2 it is said that the minister erred in law in that he made a s 10 declaration based on a finding that an area, far larger than the area for which protection had been sought, was a significant Aboriginal area. Although the separate question of identifying the area that is the subject of applications and declarations under the Commonwealth Heritage Act is yet to be addressed, the complaint in para 5.2 is inartistically expressed. The only ''finding'' as to area that can be identified from a reading of the s 10 declaration is the defined area in the declaration which, limited as it is to the site of the proposed bridge and its approaches, is a very small area and one which is much smaller than the area sought in the application of the ALRM dated 23 December 1993. If the reference to a ''finding'' is, in fact, intended to refer to the contents of Professor Saunders' report, then the complaint will be dealt with when I come to consider what information, as a matter of procedural fairness, should have been available to interested parties, such as the Chapmans and Messrs Barton & Knott, from a reading of the reporter's advertisement.

Para 5.3 complained that the minister erred in law in making the s 10 declaration:

... based on a finding as to the significance to Aboriginal women of a large area of the Lower Murray in the State of South Australia when the only application before him related to campsites near the bridge site on both sides of the Murray River and 'sites on Hindmarsh Island as a whole' . . .

As is pointed out in this ground of complaint, the ALRM's letter of application of 23 December 1993 to the minister did not refer to women's business. I consider this to be a most important issue but I prefer to deal with it when considering the subject of procedural fairness.

Paragraph 5.4 complained that Professor Saunders misconceived her role as a reporter. She had said in her report that it was not the function of the reporter to advise the minister on whether to make a declaration or not. It was also common ground that, during the course of his contact with Professor Saunders, Mr Palyga, the solicitor for the Chapmans, submitted and Professor Saunders rejected the proposition that she should take an inquisitorial role; Professor Saunders saw her role as one of ''reporting'' -- not one of ''recommending''. I support the views of Professor Saunders. There is nothing in the Commonwealth Heritage Act which points to the role of the reporter as including anything more than ''reporting''. The Act gives to the minister the discretionary power to make declarations and for that purpose the minister would be entitled to look to his department and, if he thought fit, to Professor Saunders for advice: cf Mcveigh v Willara Pty Ltd (1984) 6 FCR 587 at 601 ; 57 ALR 344 at 357-8, but that is a far cry from saying that there is some form of compulsion of the reporter to make recommendations. If that were to be the case one would expect to find it in the legislation: but the Act is silent.

The ground of complaint in para 5.5 raises, once more, the question whether the minister should have considered the contents of the secret envelopes; it contains an allegation that there was no real exercise of the discretionary power that was vested in him under the legislation. I will return to the subject of the secret envelopes in due course.

The ground of complaint in para 5.7 is difficult to understand. It claimed an error of law on the part of Professor Saunders because she allegedly adopted:

... an error of law made by the Fergie report namely she took into account the assertion that Aboriginal tradition would be injured or desecrated if the claims of the Aboriginal women did not prevail at a time when the Aboriginal women had the power to ensure they prevailed. Such a consideration is not one which is taken to injure or desecrate the site in terms of s 3(2) of the Act.

It would seem that this was a reference to a section of Professor Saunders' report in which she was discussing the existence of a number of representations that noted, in their support for the bridge, that there had already been substantial physical interference with the foreshore on both the island and the mainland; there are, for example, existing physical links in the form of the barrages and the ferry (including the ferry cable) and there is the substantial and continuing boat activity in the adjacent waters. As Professor Saunders noted, these points were used to challenge the claims about the cultural significance of the area and to counter arguments that the bridge would be a desecration of it. Professor Saunders then addressed the responses that the Aboriginal people had made; at that stage of her report, she proceeded to say that a particular point that had been raised was reinforced in Dr Fergie's report. Professor Saunders then quoted the relevant extract which appeared in s 4 of her report entitled:

The nature and extent of the threat of injury to or desecration of the area.

The professor was summarising various representations that had been put before her including the relevant extract from the Fergie report. Having completed her summary she then stated her conclusion in these terms:

In my view, if the minister is satisfied that the area is a significant Aboriginal area within the meaning of the Act, it is open to him also to conclude that construction of the bridge threatens injury or desecration of it.

I cannot see how this conclusion could amount to an adoption of some unspecified error of law from the Fergie report.

In para 6 of the application for an order of review the Chapmans alleged that Professor Saunders contravened the Sex Discrimination Act 1984 (Cth) in denying the minister access to the secret envelopes on the basis of his sex; they also alleged that the decisions under review breached the Racial Discrimination Act 1975 (Cth). Although these grounds were not abandoned, they were not seriously pursued. They do not warrant consideration.

Paragraphs 7 and 8 of the application were, basically, ''catch-all'' provisions alleging that there was no evidence or other material to justify the making of the decisions and that the decisions were otherwise contrary to law. There was a complaint about the manner in which Professor Saunders addressed the differing anthropological reports but, in my opinion, that was the peculiar province of the professor as the reporter. It was said that the s 10 declaration ''usurped the authorisation of the State Minister for Aboriginal Affairs made on 3 May 1994''. It was claimed that the declaration was incompatible with the provisions of s 7(1) of the Commonwealth Heritage Act; that subsection provides that the Act, except for Pt IIA (which deals with Victorian Aboriginal cultural heritage and therefore has no application to these proceedings) is not intended ''to exclude or limit the operation of a law of a state or territory that is capable of operating concurrently with this Act''. That argument failed to distinguish between provisions in the Commonwealth and state legislation which can be wholly compatible in that they have a common purpose in providing for protection of Aboriginal sites and objects and the implementation of those provisions which can be, and are in this case, wholly incompatible. With respect to the proposed bridge, the state minister used the provisions of the State Heritage Act to authorise works whilst the federal minister used the provisions in the Commonwealth Heritage Act to prevent those works. Section 7 of the Commonwealth Heritage Act is not to be read as meaning that the Commonwealth legislation is subservient to the state legislation; it looks for concurrent operation. But if that is not possible, either because of the provisions of the legislation or because of the method of implementation, then the Commonwealth legislation must prevail. This conclusion means that there was no substance in the further complaint that s 7(4) of the Commonwealth Heritage Act preserves remedies that a person would have apart from the Commonwealth legislation: the subsection makes it clear that it is only referring to remedies that are consistent with the Commonwealth legislation.

The last of the complaints that is set out in the application for an order of review is found in para 8.4. It is alleged that the minister's decision to make a s 10 declaration was contrary to law because the minister:

... took into account that ATSIC would consider paying any compensation he might have to pay to others in respect of making the s 10 declaration when it was beyond the power of ATSIC to pay such compensation or alternatively ATSIC had no legal obligation to pay such compensation and accordingly the first respondent's action in inviting ATSIC to consider paying such compensation was illegal, or alternatively the first respondent's reliance on ATSIC paying or considering paying such compensation constituted reliance on an illegal action.

I do not consider there is any merit in this complaint. ATSIC did not state that it would contribute. The minister's declaration was not in any sense a contingent decision; even if, as the Chapmans claim, it was beyond ATSIC's powers to make a contribution, it remains a fact that it did not make a contribution nor did it undertake to do so.

Although the greater number of the Chapmans' complaints have been dismissed there remain several areas of contention that are yet to be addressed.

The first of these is the nature and the extent of the information that should have been made available to those members of the public who were or who might have been interested in furnishing representations to the reporter as contemplated by the provisions of s 10(3)(a)(ii) of the Commonwealth Heritage Act. The publication by the reporter of the required notice in the Gazette and in a local newspaper is activated because the minister has received an application:

(a): by or on behalf of an Aboriginal or a group of Aboriginals
(b): seeking the preservation or protection of a specified area
(c): from injury or desecration.

As the legislature has considered it appropriate to involve the public by directing that the notice is to inform interested persons that they have the opportunity to furnish representations to the reporter, it stands to reason that these interested persons must be apprised of appropriate information so that they can make meaningful representations. The legislation goes some of the way to identifying what that appropriate information might be. For example, the notice must state ''the purpose of the application''; it must also state ''the matters required to be dealt with in the report''. Those ''matters'' are, quite clearly, the seven matters that are identified in s 10(4). But what is the ''purpose of the application''? In my opinion, to answer that question it would be necessary to identify in the notice first, the identity of the applicants, next the ''specific area'' and finally the apprehended injury or desecration. By this means, an interested person, otherwise devoid of information, might know as an example that the applicants were LMAHC, that the specified area was the bridge site and the approaches to it and that the perceived injury would be the injury that the earthworks would cause to the two camp sites. All that information was available to the minister in May 1994 and he, in turn, could have passed it on to his nominated reporter at the time of her appointment. The perceived desecration which was the effect that the bridge would have upon the spiritual and cultural beliefs of Aboriginal women was not, of course, known in detail to the minister at this time.

It is not to the point that people such as the Chapmans already knew most of this detail and were readily able, through their advisers, to acquire additional information as time progressed; that is not the test. An ordinary member of the public should have been able to read the notice in the local press and thereby determine from the information that it contained whether the matter was one of interest to him or her. To know this, that reader would need a reasonable identification of the land; it need not be exact with grid references; but it should indicate the location and the likely outer boundaries. He or she should also have some reasonable indication of the perceived injury or desecration and the nature of the threat. Armed with that information, the interested person would have the opportunity of furnishing a representation in which he or she agreed or disagreed that there was a particular significance of the area to Aboriginals: s 10(4)(a). Likewise that person could include in the representation his or her views on the nature and extent of the threat of injury to or desecration of the area: s 10(4)(b). The fact that s 10(4)(c) addresses ''the extent of the area that should be protected'' supports the view that the description of the land in the notice does not have to be exact; but there must still be practical considerations such that the average reader of the notice would have a reasonable idea of location.

The notice, in my opinion, was inadequate as to the description of the significant Aboriginal area: it did no more than refer to ''significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia''. It must be said that save for referring to ''areas'' and not ''area'' the description in the notice is a copy of the description in the instrument of appointment. Why it contained such a vague reference to the relevant area is difficult to understand when regard is had to the fact that the first of the s 9 declarations contained exact grid references. Furthermore, at that stage at least, the minister was reacting to the ALRM's letter of 23 December 1993 with its specific reference to two major camp sites adjacent to the bridge approaches. I have come to the conclusion that the description in the notice was inadequate; it did not identify sufficiently just what area or areas in the vicinity of Goolwa and the island would be the subject of the report.

Nor did the notice address, as events transpired, the likely threat of injury or desecration. One might be excused for thinking that the subject of the proposed Hindmarsh Island bridge had achieved such notoriety in South Australia that ''everyone'' must have known. that earthworks and camp sites or middens or burial grounds might well have been the cause for Aboriginal concern -- and, in fact, that is partially the case. But it is not the whole case. Professor Saunders' appointment was dated 23 May and she inserted the notice in the Gazette on 26 May and in The Advertiser on 28 May 1994. But Professor Saunders, as the reporter, did not know of the issue of women's business until her meeting with the Aboriginal women on 20 June. Mr Palyga said that by 12 June, there was a significant women's component of which he and the Chapmans were aware but he added that he has never obtained any details of it. Large as women's business loomed in Professor Saunders' report and in the minister's decision-making process, no formal announcement to the public of its existence was ever made. Professor Saunders said, and I accept, that she apprised people of the subject as and when she spoke to them. But what of those to whom she did not speak? How many interested persons did not hear about the subject of women's business and its inter-relationship with the threat of desecration until after the minister had made his s 10 declaration?

The Chapmans have also complained that the identity of the informants who were seeking a s 10 declaration was not made known to them. They complained in particular that they had never been informed about the role of Doreen Kartinyeri. They said of her that her credentials were ''absolutely critical as she was a key informant -- the authorised spokesperson for the Aboriginal women''. They complained that had they known of her role, they could have tested her credentials. If by that, they mean that they could have questioned her, I disagree; the Act only gave to the Chapmans the right to be informed by an appropriate notice in the Gazette and the local press and the right to furnish representations. It gave them no right to information that might come to the reporter from other sources save for one exception of significant importance and that is this: if the reporter, in the course of receiving representations or otherwise acquiring information, was able to perceive that there had been a material change in the relevant area or a material change in the nature of the threat, procedural fairness would insist that some form of correcting notice to the public would have to be published so that fresh representations could be furnished. Absent such publication, the decision-maker would not be entitled to rely on that information.

I have therefore come to the conclusion that the notice that was published was deficient as to the relevant area from the outset and that it became deficient in due course of time because of the advent of the subject of women's business and the reliance on that subject by both the reporter and the minister without giving notice of it to interested members of the public. The notice was also deficient because of its failure to identify the parties who sought the declaration from the minister. In some cases that might be a serious omission but in the particular circumstances of this case, the information that was before the court suggested that the failure to name the LMAHC as the applicant would not have misled anyone or caused any hardship.

The next issue of importance is the proper meaning of the word ''considered'' in s 10(1)(c) of the Commonwealth Heritage Act. That provision refers to the minister having ''considered the report and any representations attached to the report''. It was not suggested that the minister had not ''considered'' the report; Ms Kee identified the minister's numerous annotations and markings on it. But what of the representations? There was no like evidence of a similar close scrutiny.

Whether there is, or is not, a legal obligation upon a decision-maker to consider a particular matter before making a decision is determined by the construction of the controlling statute. But if it does not supply the answer, then the matter is to be determined by implication after having regard to the purpose of the statute and all other relevant circumstances: Minister for Aboriginal Affairs v Peko-Wallsend Ltd , 162 CLR 24 supra. In Tickner v Bropho , Black CJ, when discussing at large, the responsibilities of the minister under this legislation, emphasised the extent of the minister's personal involvement. He said at FCR 194; ALR 420:

One of the purposes of the scheme established by ss 10(1)(c), 10(3) and 10(4) with respect to the provision of a report to the minister is to provide the minister with information about the particular significance of the subject area to Aboriginals and about the nature and extent of the threat of injury to the area. He is thus to be provided with fact and opinion about the matters that, for the reasons I have given, he is obliged to consider by reason of s 10(1)(b) when he has received a valid application for a declaration. A report is also required to deal with other matters that would be relevant to consider before deciding to make a declaration and that would, obviously, also be relevant to any decision not to make a declaration.

Moreover, the process of reporting to the minister involves the prior notification to the public of the purpose of the application under s 10(1) and an invitation to interested persons to furnish representations in connection with the report: s 10(3). Before submitting a report to the minister, the maker of the report must give due consideration to any representations furnished to him or her and must attach them to the report: s 10(3). The minister must himself consider the representations attached to the report as a precondition to the making of any declaration. It is thus the intention of the Act that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application under s 10(1). There is nothing to suggest that the class of ''interested persons'' from whom representations are to be invited is confined to those who would oppose the making of a declaration, although it would obviously include those who have an interest that would be adversely affected by a declaration. The use of the expression ''interested persons'' in s 10(3)(a)(ii) may be contrasted with the expression ''persons likely to be substantially affected'' in s 14(2)(a). Having obtained a report and considered it, and the representations attached to it, the minister may in the exercise of his discretion decide not to make a declaration, or he may decide, not to make a declaration because, having considered the report and the representations, he is not satisfied that both or either of the preconditions in s 10(1)(b) exist. But the intention of the Act is that the minister shall make an informed decision on all such questions, with input from interested persons.

It was not suggested that the minister had ''considered'' the representations in the sense of ''reading'' them. In fact, counsel for the minister, in their final submissions disavowed any such responsibility. They claimed that it was not necessary for the minister to read them: his statutory responsibility was to ''consider'' them and he had done this:

... by a combination of reading the Saunders' report which in itself reflected the representations as well as discussing the representations which Ms Kee had read and obtaining her advice that the representations which she read were adequately reflected in the Saunders' report. [Written submissions: p 4.]

The verb ''consider'' is a common word used daily in language and in documents; yet no counsel was able to refer to any judicial determination of its meaning. The Macquarie Dictionary (1st ed 1981) and the Shorter Oxford English Dictionary (3rd ed 1973) ascribe to it a variety of shades of meaning giving, respectively, as their first definitions ''to contemplate mentally; meditate or reflect on'' and ''to view attentively, to survey, examine, inspect''. American and Canadian dictionaries give similar general descriptions: ''advert to, analyse, appraise, assess, etc'' ( Legal Thesaurus 2nd ed William C Burton) and ''to examine, inspect; to turn one's mind to''; The Dictionary of Canadian Law : Duke Low & Niese.

In my opinion, these various definitions point to a substantial personal involvement on the part of the individual who is required ''to consider'' the written material. It does not mean that he must read every word of every document. A busy minister of the Crown is entitled to receive assistance from his staff: Minister for Aboriginal Affairs v Peko Wallsend Ltd , supra, ; at CLR 30 ; ALR 302 per Gibbs CJ CLR 65;ALR 328 per Brennan J. But that entitlement does not, of course, permit him to delegate his decision-making power: see s 31 of the Commonwealth Heritage Act: nor does it allow him to abrogate his responsibilities. The concept of his considering the representations must involve a balanced mixture of staff assistance and personal involvement.

The obligation that is on the reporter is to ''give due consideration'' to the representations; the absence of the adjective ''due'' in relation to the minister's need to consider the representations suggests that the obligation that is imposed upon the reporter is somewhat more onerous. This, in turn, supports a conclusion that the minister can look for a measure of staff assistance when the time comes for him to consider the representations.

The meaning of the word ''consider'' was discussed by the Canadian Supreme Court in Walters v Essex County Board of Education (1973) 38 DLR (3d) 693. The respondent board was required by statute ''to consider'' the report of an ''inquiry officer'' whose duty had required him to assess and report upon whether an intended compulsory acquisition of land for a school site was fair; he duly reported that it was not fair. The chairman of the board obtained a contradictory report from the board's solicitor and ultimately the board, by a majority, accepted the solicitor's contradictory report in preference to the report by the inquiry officer. Laskin J, in delivering the judgment of the court, said at 697 in respect of the board's obligation to consider the report of the inquiry officer:

What, then, is involved in its duty to ''consider'' the report? Certainly, the board must have the report before it, and the evidence shows that each member had a copy at least 3 days before the approval meeting. Although the word ''consider'' imports a time element, I do not think a court can or should impose any arbitrary temporal standard any more than it can or should monitor the degree of required concentration upon the contents of the report. In the present case, the board was in session on the report in committee of the whole for about one hour and one-half, and had before it a critical set of opposing reasons which it ultimately accepted. I see nothing improper, in view of the independent power of the board as an approving authority, in its having a pre-packaged opinion before it prepared by its solicitor.

In my opinion the expression ''the degree of required concentration upon the contents of the report'' accords with the view that I have expressed that whilst there must be a measure of personal involvement on the part of the decision-maker that does not mean that he is denied assistance in his ''consideration'' of the representations.

But, in my opinion, the evidence that had been placed before the court in these proceedings has shown, as a matter of probability, that the minister did not give any ''consideration'' to the representations at all. I have come to this conclusion because of a combination of factors. First, there is the absence of any reference to the subject of the representations in the first set of s 13 reasons. It is also of some significance that there is no reference to them in the s 10 declaration -- it merely recited ''... having received and considered a report under s 10(1)(c)...''; second, the evidence makes it clear that the representations were not available to the minister or his staff until the day preceding the making of the s 10 declaration. The evidence of Ms Kee with respect to the minister's commitments in this critical 24 hour period, coupled with the time taken by her to consider the representations, justify a finding that the minister's busy schedule would not have given him sufficient time to ''consider'' the representation to the requisite degree. Ms Kee said in evidence that she had discussed the subject and the contents of the representations with the minister but under cross-examination it became apparent that the extent and description of that discussion was vague and nebulous. I reject the submission by counsel for the minister that the minister's reading of the Saunders report coupled with his discussions with Ms Kee about the representations and her advice on their contents constituted a ''consideration" by the minister of the representations. Finally, it is apparent from a ministerial brief to the minister from ATSIC dated 8 July 1994 that there was a misconception by the minister's advisers about his responsibilities. In that brief the minister was merely advised that the representations (referred to as submissions) had to be ''received and acknowledged''. He was not advised of his obligation to ''consider'' them nor was he advised of what measure of personal involvement on his part would be necessary to constitute a proper consideration. The relevant passage from the brief was:

The original report, Appendices A-H and the 400 written submissions are to be delivered by overnight courier. While there is a coverage in the report of the issues raised by the written submissions, it is nonetheless important for these submissions to be received and acknowledged by you as an integral part of the reporting process.

The consequence of these findings is the conclusion that there has been a fundamental failure by the minister to comply with the statutory obligation that he consider the representations before deciding whether to exercise his power to make a declaration under s 10 of the Commonwealth Heritage Act.

Before leaving this subject, I should express my findings with respect to the contents of the secret envelopes. Notwithstanding the remarks attributed to him in the media report on 13 July 1994 and the television interview, other evidence, including the contents of the amended s 13 reasons, have established, without doubt, that the minister was heavily influenced, in making his decision to prevent work on the bridge for 25 years, by the women's business -- by ''the depth and conviction with which the Aboriginal women of the region hold and maintain their spiritual and cultural beliefs for the area'': (they being the words used by the minister in the amended s 13 reasons). In a lengthy media release dated 10 July 1994 (the day following the s 10 declaration) the minister dwelt at length on the subject of women's business, making no reference to any suggestion of physical damage to sites of archaeological importance. The media release touched indirectly on the subject of the secret envelopes when it said:

It has been a concern to ensure that Aboriginal cultural requirements not be infringed as Aboriginal tradition requires the maintenance of secrecy about certain types of information, unless the release of that knowledge is perceived, ultimately, to be the only way to protect an area.

I am of the opinion that it was not a proper exercise of a power on the part of the minister to rely so heavily on the subject of women's business, yet deny himself access to the contents of the secret envelopes. Bearing in mind that the envelopes were not tendered in evidence and thus the contents are not known to court, it is important to avoid speculating as to what they might say. But it is at least reasonable to infer that they would contain the narrative of the secrets and, perhaps, the reasons for their importance. There is room to suggest that it would not be in the public interest to insert in a notice appearing in the daily press detailed particulars of the claim of women's business. But such a proposition would not deny the publication of the existence of the claims thereby putting interested persons on notice as to their existence. It is well recognised that Aboriginal law insists on certain subjects being kept secret. Section 27 of the Commonwealth Heritage Act goes some way towards preserving that secrecy by giving to the court power to conduct proceedings in camera. This will occur where the court is satisfied that it is desirable to do so, having regard to the interests of justice and the interests of Aboriginal tradition. The section also empowers the court to make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information. But that section is of no use in the present proceedings; it only applies to proceedings under the Commonwealth Heritage Act; it has no application to proceedings, such as these, which have been instituted pursuant to the AD(JR) Act. Furthermore, the protection in s 27 is only partial in the sense that there must still be a disclosure of the information to the court and to those persons who are not excluded by the court's order; nor does the section extend beyond the conduct of the proceedings in court. Hence it could not be suggested that s 27 could somehow be used to justify the withholding of information from an administrator who had a justifiable need to know the relevant details.

The confidential protection of the beliefs of Aboriginal people was considered in Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104 ; 65 ALR 247. In the course of a land claim hearing under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) the Commissioner (Maurice J) ordered the production of documents that referred to sacred sites. The Sacred Sites Authority resisted production, claiming that the information in question had been gathered under a promise that it would be kept confidential, that the Aboriginal custodians were bound under Aboriginal law and custom to keep the information confidential and that disclosure would cause dismay, restrict the future flow of information to the authority and prejudice the standing of the authority. Maurice J held that there was an insufficient basis for a claim of public interest immunity but, that if he were wrong he would, on balance, favour disclosure of the material while he was sitting in camera.

The authority's appeal to the full court was unsuccessful.

In the course of his judgment Bowen CJ acknowledged that the authority had been entitled to take objection to the production on the ground of public interest immunity in the sense that it was entitled to have the detriment to the public interest that would be involved in disclosure weighed in the balance against the detriment to the public interest involved in non-disclosure: FCR 110; ALR 252. Woodward J went so far as to say at FCR 114; ALR 256:

In my opinion, the proper protection of minority rights is very much in the public interest, as is respect for deeply held spiritual beliefs. In particular, the rights and beliefs of the Aboriginal people of Australia should be accorded a special degree of protection and respect in Australian courts. Thus I can well imagine a court finding on balance, for example, that the outrage in an Aboriginal community caused by a forced disclosure of information about a sacred site, would outweigh the importance in that particular criminal or civil trial of precisely identifying the place or explaining why it was sacred.

Maurice J had adopted the approach that if Aboriginal people wanted the protection of the legislation then they must be prepared to reveal sufficient about their sites to bring themselves within its umbrella. Toohey J at FCR 121; ALR 265 did not think that was the way in which the Aboriginal Sacred Sites Act (NT) worked. His conclusion was expressed in these terms at FCR 130; ALR 271:

While the authority understandably treats as confidential information gathered by it relating to sites, the time must necessarily come when information will have to be disclosed in order to establish the existence of a sacred site, whether it be for the purpose of a prosecution or as a step towards declaration under the Act.

The combined effect of these judgments has established that claims of Aboriginal confidentiality can be made and that they may, in appropriate circumstances, be upheld. But, as the law presently stands, a time will necessarily come when there must be some disclosure so that the claim can be tested. When one has regard to the involvement of members of the public as a prelude to the reporting process, it was incumbent on the reporter to offer some detail of the existence of the women's business so that meaningful submissions could be made. As I do not know the details, I cannot express a view about the extent to which the secret information would need to be publicised. But, it was essential that the minister have full details of the claims so that he might appropriately consider their efficacy and the weight that he should give to them. The Aboriginal women were not, presumably, informed of the importance of this issue. They were not given the opportunity of weighing up whether the importance that they attached to the site was so great as to justify disclosing their secrets to the minister.

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