Fant Fit —- v. er araas ' as a } A a] CATCHWORDS I | |- -=° -Administrative Law - prohibition - Aboriginal Land Commissioner - I | i} ~""""driquiry into Aboriginal land claims - writ of prohibition against ! Commissioner on grounds of bias in the legal sense - test to apply to statutory commission. eed '=: - 'Aboriginal Land Rights (Northern Territory) Act -1976 -(Cth}-s.59 _ No. Gl19 of 1987 - oc). - No. G120 of 1987 Dole ee oe > °- "IN-THE MATTER of an Application for a Writ of Prohibitton ~L . against the -HONOURABLE MICHAEL DAVID ANDREW MAURICE, "ABORIGINAL - LAND. COMMISSTONER AND THE NORTHERN LAND COUNCIL and THE CENTRAG THE CENTRAL .- LAND COUNCIL AND THE MUNICIPALITY OF TENNANT CREEK 'AND THE THE -. COMMONWEALTH AND IN THE MATTER OF THE WARUMUNGU LAND C1 CLAIM and .~._the KENBI_ (COX PENINSULA) LAND CLAIM EX PARTE, THE .- _ _ ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA AND the NORTHERN TERRITORY LAND CORPORATION BOWEN C.J., LOCKHART and SHEPPARD Jd. SYDNEY 13 APRIL 1987 ' IN SHE FEDERAL COURT OF AUSTRALIA ) "NEW SOUTH WALES DISTRICT REGISTRY ) No. G120 of 1987 GENERAL DIVISION } BETWEEN THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA First Applicant AND THE NORTHERN TERRITORY LAND CORPORATION Second Applicant AND THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE NORTHERN LAND COUNCIL and THE CENTRAL LAND COUNCIL Second Respondents AND ' THE MUNICIPALITY OF TENNANT CREEK Third Respondent AND THE COMMONWEALTH Fourth Respondent COURT: Bowen, C.J., Lockhart and Sheppard JJ. DATE: 13 April 1987 PLACE: Sydney. . MINUTE OF ORDER | tL THE COURT ORDERS THAT: "- 1.°- - The application for a Writ of Prohibition against the -Honourable Mr Justice Michael David Andrew Maurice, Aboriginal Land Commissioner prohibiting him from -" .7° s -° "further proceeding with the hearing of the Warumungu > - Band Claim and from exercising any of his powers or mo te ee = Functions under section 50 of the Aboriginal Land Rights _~- -- 2: {Northern Territory) Act 1976 (Cth) in relation-to that toto -.-- °s-Claim be dismissed and the order to show cause made in relation thereto be discharged. Foe - "rl F°.2,-- -=°> The-order to show cause why a Writ of Prohibition-should- :- . 5-2-2 2 2 not issue prohibiting the said Aboriginal Land-- _: - oe > Commissioner from further proceeding with the hearing of the Kenbi (Cox Peninsula) Land Claim and from exercising ' any of his powers or functions under section 50-of the -Aboriginal Land Rights (Northern Territor Act 1976 = (Cth) in relation to that claim be made absolute. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ~ * 8 « { HF ~ coe ff tN THE FEDERAL COURT OF AUSTRALIA > NES SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION COURT: DATE: PLACE: ~~ Now Gligcof i987 IN THE MATTER of an - Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent AND THE NORTHERN LAND COUNCIT and THE CENTRAL LAND COUNCIT Second Respondents AND THE MUNICIPALITY OF TENNANT CREEK Third Respondent AND THE COMMONWEALTH Fourth Respondent AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM and the KENBI (COX PENINSULA) LAND CLAIM EX_PARTE, THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA AND THE NORTHERN TERRITORY LAND CORPORATION Prosecutors Bowen, C.J., Lockhart and Shespard JJ. 13 April 1987 Sydney. ¢ MINUTE OF ORDER THE COURT ORDERS THAT: me le The application be dismissed. 2 -- -Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. - IN THE FEDERAL COURT OF ATISTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY No. G119 of 1987 ) ) GENERAL DIVISION BETWEEN : THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSTONER First Respondent AND: THE NORTHERN CAND COUNCIL and THE CENTRAL LAND COUNCIL Second Respondents BX PARTE: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALTA Prasecutor No. Gi29 of 1987 BETWEEN : THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND: THE _ HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMIS STONER First Respondent AND: THE NORTHERN LAND COUNCIL and THE CENTRAL LAND COUNCIL Second Respondents soos 2. ~ CORAM: BOWEN, C.J., LOCKHART and SHEPPARD JJ. DATE : 13 APRIL 1987 REASONS FOR JUDGMENT THE COURT: This is a most regrettable case. It involves assertions by the Government of the Northern Territory of Australia that one of the judges of its own Supreme Court is disqualified from continuing to hear two land claims in his capacity as Aboriginal Land Commissioner. The judge is said to have so conducted himself during the hearing of one of the claims that he failed to observe both the appearance and the substance of fairness and impartiality. It is said that he expressed views so critical of the Northern Territory Government, a participant in the hearing of the land claims, that a reasonable apprehension is entertained that he might not bring an tl.mpartial and unprejyudiced mind to the resolution of the issues involved in the inquiries. -- The first of the matters (G119 of 1987) is the return of an order to show cause made on 27 March last. The relief which the Prosecutor, the Attorney-General for the Northern Territory of Australia ("the Attorney-General"), claims, is an order prohibiting the first respondent, (Maurice J.), who is the Aboriginal Land Commissioner, from proceeding to hear evidence or submissions, from making a report and from making final recommendations pursuant to the provisions of s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") in relation to either or both of two land claims known as "the 7 3. ° Warumungu Land Claim" and "the Kenbi (Cox Peninsula) Claim". The application (No. G120 of 1987) is an application for an order of review seeking the review of the conduct of the Commissioner for the purpose of making a decision in relation to the making of a veport and final recommendations in relation to the two land claims, and also the decisions of the Commissioner to proceed with the hearing of evidence and submissions and the making of a report and final recommendations in relation to those claims and the Commissioner's decisions not to disqualify himself in relation to the hearing of the two land claims. However, evidence was adduced and submissions made in the proceeding for prohibition (G119 of 1987) and not in the proceeding under the Judicial Review Act primarily because there is a question whether there is any decision or conduct of the Commissioner reviewable under that Act. Both proceedings came before the Court as urgent matters on Monday, 31° March last. At the request of the parties, the Court heard the matter on a final basis and on Wednesday, 2 April 1987 reserved its decision. The Attorney-General was supported by the Northern Territory Land Corporation, a body corporate continued in existence by the Northern Land Corporation Act 1986 (N.T.), the function of which is to acquire, hold and dispose of real property. The members of the Corporation are senior public servants of the Northern Territory Government and are appointed by the relevant Minister of that Government. The Commissioner appeared by counsel and submitted to such order as this Court should make except an order as to costs. The ground upon which each application is based is that, because of things said and done by him, the Commissioner had created a situation in which a fair-minded member of the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the Inquiry; see The Queen v. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248 at pp. 258-263 and Livesey v. The N.S.W. Bar Association (1983) 151 C.L.R. 288 at pp. 293-4. It is to be emphasized that actual bias is not alleged and that the bias alleged is in the nature of a pre-determined attitude towards a party, but not a bias based on interest. The Commissioner is exercising jurisdicticn pursuant to s. 50 of the Act, The jurisdiction is administrative in character. The proceedings are inquisitorial, not adversarial. Sub-section 50(1) of the Act provides for the Commissioner's functions. The function the Commissioner is exercising in relation to the two claims is that provided for in para. (a) of the sub-section which requires the Commissioner to ascertain whether the Aboricqinals, on whose behalf the claims are made or anv other Aboriginals, are the traditional Aboriginal owners of the land and to report his findings to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory. Where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, the Commissioner is required to make recommendations to the Minister for the granting of the land or of any part of it in accordance with ss. ll and 12 of the Act. By sub-sec. 50(3) the Commissioner, in making a report in connection with a 5. * traditional land claim, is required to have regard to the strength or otherwise of the traditional attachment by the claimants to the land and to comment ona number of specified matters. The relevant matters of comment for present purposes are those specified in paras. (b) and (c) of the sub-section, which refer to the detriment to persons or communities, including other Aboriginal groups, that might result if the claim were acceded to, and the effect which acceding to the claim would have on the existing or proposed patterns of land usage in the region. The claims are being made on behalf of Aboriginals, in the cease of the Warumungu Land Claim, by the Central Land Council. and, in the case of the Kenbi claim. by the Northern Land Council. The two Land Councils have been joined as respondents in these applications. Both have opposed the Attorney-General's application. It was also opposed by the Municipality of the Town of Tennant Creek, which is interested only in the Warumungu claim, and by the Commonwealth of Australia. Each of these parties was separately represented. In order to understand the issues which arise for consideration, it is necessary to refer to the backaround of the matter at some length. The Warumungu land claim is a traditional land claim to unalienated Crown land in the vicinity of Tennant Creek, The application for the land was made on behalf of the Aboriginal claimants to the then Commissioner (Toohev J.) on 20 November 1978, The inquiry commenced on 1 November 1982 before Sir William Kearney who had replaced Toohey J. as Commissioner. On 3 November 1982 counsel for the Attorney-General informed the 6. * Commissioner that on 28 October 1982, 11 areas under claim had been alienated by the Crown. This raised questions of the Commissioner's jurisdiction to hear the claim to those areas. The questions were determined by the High Court in 1984; see The Queen v. Kearney; Ex parte Japanangka (1984) 158 C.L.R. 395. It was held that, except for one area which had been alienated before the applications were made, all the land, the subject of the applications, was open to claim and the Commissioner had not been deprived of jurisdiction in respect of it. A fresh inquiry commenced before Maurice J., the present Commissioner, on 4 March 1985. In passing it should be mentioned that his appointment as Aboriginal Land Commissioner expires on 3 October 1987. a little less than six months hence. Maurice J. has indicated that it is unlikely that he will accept a further appointment. The hearing proceeded on days in March, April, May, June and July 1985. Some 42 days' hearing were involved. The hearing in March and early April took place at Tennant Creek when Maurice J. heard evidence from many Aboriginal claimants. Two of these have since died. Maurice J. visited a number of areas which were included in the claim and took evidence at these places. He visited a large number of sacred sites and attended several performances of ceremonial activity and displays of ritual objects. He inspected a number of camps and places where Aboriginal people resided and he also heard evidence from representatives of the Tennant Creek Town Council, which is represented at the hearings before him and on these applications, 7. some of the townspeople of Tennant Creek, representatives of recreation groups, mining companies, pastoralists, the Northern Territory Development Corporation, which is a statutory corporation, anda number of Government departments. A large number of written proofs of evidence were received and read. The transcript of the proceedings now numbers almost 6,000 pages. Amongst the witnesses called in the 1985 hearings on behalf of the claimants were six anthropological researchers. Questions arose about production of documents which they had prepared and a claim for privilege from inspection which was made in respect of them. Rulings given by Maurice J. about these matters were challenged unsuccessfully in this Court and the High Court; Attornev-General for the Northern Territory v. Maurice (1986) 65 A.L.R. 230; (1986) 61 A.L.J.R. 92. The High Court gave judgment on 16 December last. On 12 December 1986, Maurice J. had given directions for the resumption of the hearing of the Inquiry. The directions included a timetable for the completion of all evidence, other than that in support of the claim. on 23 to 27 February 1987, and final addresses on jurisdictional questions, the impact on land usage and other issues on 2 to6 March 1987. At a further directions hearing held on 9 February 1987, the Commissioner fixed the week commencing 16 March 1987, at Alice Springs for the inspection of certain of the documents produced by the anthropologists. The Commissioner said that he would attend at Alice Springs to supervise the inspection and resolve any issues arising because of it. oS oh 8, In accordance with the directions given on 12 December 1986, the hearing recommenced on 23 February 1987 in Darwin and continued until 6 March 1987 when the hearing was adjourned to 21 April 1987. It is because of statements made by the Commissioner during the resumed hearing, particularly statements made on 24 and 25 February 1987, that the Attorney-General brings these proceedings. If the Attorney General is successful, the Commissioner will be prohibited from continuing with the hearing. We shall come to the matters which are relied upon in a moment, but before we do so, it is necessary to say something of the history of the Kenbi Land Claim. The hearing of the Kenbi Land Claim is not nearly so far advanced as the hearing of the Warumungu Land Claim. It teco has been the subject of proceedings in the High Court. The claim is in respect of an area of land in the Cox Peninsula near Darwin. The claim was made by the Northern Land Council on behalf of certain Aboriginals on 20 March 1979. The land to which claim under the Act may be made does not include land in a "town". "Town" has the same meaning "as in the law of the Northern Territory relating to the planning and developing of towns and the use of the land in or near towns"; see s. 3(1) of the Act. Regulation 5 of the Planning Reaqulations made by the Administrator of the Northern Territory under the Planning Act 1979 (N.T.) provides that the areas of land specified in Schedule 3 to the regulations were to be treated as towns. Those areas included most of the land in the Cox Peninsula which was the subject of the claims. The requlation came into operation on 3 August 1979. The matter came before the then Commissioner, * 9. "Toohey J., on 20 December 1979. He held that that part of the Peninsula specified in the Schedule was not available to be claimed. The critical question which arose for his decision was whether it was permissible to inquire into the reason why the Administrator made the regulations under the Planning Act, or to impute bad faith to him. It was submitted that the Commissioner, contrary to his decision, should have inquired into the question whether regulation 5 of the Planning Requiations was made for the purpose of defeating the claim by the Aboriginals to the land described in Schedule 3. or of converting that land into land which was not within the description contained in s. 50 of the Act. It was submitted that the matter should he remitted to the Commissioner with a direction that he inquire into these matters. The High Court held that the Commissioner was bound to embark on such an inquiry; see The Oueen v. Toohev; Ex parte Northern Land Council (1981) 151 C.L.R. 170. It may be observed in passing that in the judgments of the High Court are to be found some further detail of the facts which underlie this matter. Gibbs C.J. said (pp. 175-6) that the "town" of Darwin occupies an area of about 142 square kilometres. The Cox Peninsula is separated from Darwin by an arm of the sea. Although the nearest point of the Peninsula is only six kilometres from Darwin by sea, access by road is much longer and more difficult. Much of the Peninsula is vacant land. Its area is about 800 square kilometres. In fact the effect of the regulation was to specify land adjacent tao the "town" of Darwin 10. to be subject to the provisions of the Planning Act as if it were part of that town. The area of land involved, including the Cox Peninsula, was 4,350 square kilometres. Maurice J. gave directions for the resumption of the hearing of the Kenbi claim. It was to have recommenced on 30 March 1987. The issue which he was to determine initially was the issue which had been the subject of the proceedings in the High Court, that is, the validity of the requlation. In order to facilitate the hearing, he directed the filing of a statement of the claimants' claim. This statement was filed on 9 October 1986. Te is unnecessary to refer to the detail of it. It is enough to say that, amongst other things, there are alleqations that the regulation was not made bona fide and for the purposes of the Planning Act, but for the ulterior purpose of defeating a claim pursuant to the Act. Tt is likely that the hearing of this aspect of the claim will involve some of the members of the Ministry of the Northern Territory, who were in office at the time the regulation was made, being called to give evidence. At all material times the political party 1n power in the Northern Territory has been the Country Liberal Party. On 18 February 1987, shortly before the Warumungu Land Claim hearings were to resume, it was announced that there would be a general election in the Territory on 7 March 1987. The election campaign had therefore commenced when the Commissioner resumed the Warumungu Land Claim hearings on 23 February 1987. Tt is now appropriate to come to the specific matters of il. ' evidence upon which the Attorney-General relies in support of his case. Although the events before and afterwards have their importance, a principal strength which the Attorney-General's case has derives from what the Commissioner said on 25 February 1987 in relation to the evidence of a Mr. Hockey, who is a pastoral inspector in the employ of the Department of Lands in the Northern Territory. The evidence was given on 25 February 1987. Towards the end of Mr. Hockey's evidence, the Commissioner said:- "There are a couple of remarks I want to make. First of all, if what you (Mr. Hockey) have said is a fair account of what has transpired in relation to this station over the past few years, then you have shown some considerable courage in coming here and speaking as frankly as you have. I do not make these renarks without any background. IT have heard during the course of this inquiry a lot of evidence about Singleton station, including evidence from Mr. Heaslip himself and I have seen other pastoral inspection reports from previous years. Pastoral inspectors perform an important public function. The pastoral holdings in the Northern Territory belong to the people of the Northern Territory. They are leased on conditions. The community has an interest in the enforcement of those conditions and as well in the matters of land degradation and disease control, which the inspectors in the ordinary performance of their duties concern themselves with. The system of policing covenants by stock inspectors and oversighting the use and management of the land because of the public interest and the other matters I have mentioned through the appointment of pastoral inspectors and inspection by them of the various stations throughout the territory and the preparation of reports by them is a very important matter. It is quite wrong for anyone to interfere with a pastoral inspector in preparing his reports either by creating circumstances where he feels he is under pressure or may feel he is under pressure, as seems to have -been the case here, or by asking him to make changes to his report. These reports should not be vetted. The inspectors should feel uninhibited in the free and frank expression of their observations and opinions. They should be expressed without fear or favour. If Mr. Hockey o~ 12. were a police officer in uniform, then there would be considerable outrage at what he has said has occurred in the way of interference with the preparation of pastoral inspectors' reports in the Northern Territory. It makes a joke of the system of pastoral inspection in my view to require 3 months notice and the joke becomes a giant farce if the inspection can be cancelled by the pastoralists at the last minute. I must say that the evidence which vou have given seriously disturbs me and it raises questions about some form of patronage going on in this Territory. You are in a sense under my protection now. If you feel at any time after today that you are being discriminated against in the course of your employment as a result of the evidence you gave and the views you have expressed, then do not hesitate to bring that to the attention of Mr. Reeves who is counsel assisting in this matter and I shall treat it as a potential contempt and deal with it accordingly. Thank you for coming, Mr. Hockey?" The emphasis is added. We shall say something of Mr. Heaslip and Singleton Station in a moment. The important sentence in that passage is that which we have emphasized, namely, "I must say that the evidence which you have given seriously disturbs me and it raises questions about some form of patronage going on in this Territory". Tt is to be observed that his Honour's comments are qualified. They open with the proviso, "... if what you (Mr. Hockey) have said is a fair account of what has transpired ..." The critical sentence goes no further than to sav that Mr. Hockey's evidence "raises questions about some form of patronage", In order to comprehend fully the significance of what the >. t ~~) 13. whe Commissioner said one must have an understanding of the nature and purpose of Mr. Hockey's evidence. He was called by the Singleton Pastoral Co. Pty Limited, which owns the lease of the land occupied by the Singleton Station, in connection with the case it was making based on detriment it would suffer if the claim were granted, not because of any loss of land over which it has a lease, but because it would be likely to lose the right to graze cattle on a commonage adjacent to its own land. The claim that the company would suffer detriment in turn gave rise to questions whether the company might not be in danger of losing its lease for failure to comply with some of the conditions of it. In the course of his evidence, Mr. Hockey described an inspection of the property he had made. He said that the inspection was a routine one for the purpose of ascertaining whether a "default notice" had been complied with. Mr. Hockey was accompanied by his superior, Mr. Gargan, and by a Mr. Buckley, who is the solicitor for the company, Singleton Pastoral Co. Pty Limited. Mr. Gargan holds the office of Assistant Secretary, South, in the Northern Territory Department of Lands. He is in charge of the Alice Springs region which encompasses the whole of the southern region of the Northern Territory including Tennant Creek. Mr. Hockey described the presence of Mr. Gargan and Mr. Buckley as unusual in that it had never happened before. He said that Mr. Heaslip, who apparently controls the company, Singleton Pastoral Company Pty Limited, did not want him on the property. \Y 14. It was his fourth attempt to go there. Mr. Heaslip was also present with his manager. At all material times Mr. Heaslip has been the President of the Country Liberal Party in the Northern Territory. Mr. Heaslip and his manager followed Mr. Hockey's car in which were Mr. Gargan and Mr. Buckley. Counsel asked Mr. Hockey whether he felt under any pressure. He said that it was at the back of his mind that it was an unusual sort of inspection "with all those people around". He said that it had never happened before, although he had been on every property in the Northern Territory. The Commissioner intervened by asking the following question, "Not only unusual - extraordinary and unprecedented in your experience. Would not that be so?" Mr. Hockey said that it would. Mr. Hockey was asked whether he was requested to tone his report down after it had been compiled. He said, "A couple of minor points, yes". He said that such requests had become "more frequent in the last couple of months than it used to be". He said he had written in the report that full credit for the repairs and improvements to the property must be given to its manager, mentioning him by name. This statement was not approved by Mr. Gargan, but only to the extent of deleting the reference to the manager's name. After the report was altered, it still contained a statement giving credit, but to the company rather than to the manager himself. Mr. Hockey could point to no other alteration of what he had originally written. As he said himself, the correction was a minor one. 15. Mr. Hockey then referred to a code of conduct which required pastoral inspections to be notified property owners three months in advance of the date fixed for inspection. Mr. Hockey gave extensive evidence of his inspection of the Singleton Station, none of which appears to have been contentious. He was asked whether he had considered the property in the context of a grant of a perpetual lease. He said that the lessee had applied to convert the title to perpetual tenure and that he had hoped to go there on 12 and 13 March, but that his anspection had been cancelled by Mr. Garqan. Mr. Hockey said that Mr. Gargan gave as his reason for the cancellation that he "would not insult Mr. Heaslip by asking would it be permissible to do an inspection of his property at that time when there was an election". The Commissioner then asked a series of questions which included the following:- "Was Mr. Gargan the one who asked you to change your report? ---That is correct. He was also at the inspection. And he was present at the inspection? ---That is correct. He was the person whose presence you found a little intimidating? ---No, no, not him. It was the solicitor Mr. Buckley. I see? ---And having Mr. Heaslip trailing along in another vehicle behind when there was probably no need for it. Who was it who gave you the instruction that you were to give 3 months notice before you carried out any pastoral inspection? ---That was a result of the discussion between the Cattlemen's Association and the then Minister for Lands, Mr. Hatton, following the report I prepared on Bond Springs for the perpetual tenure. The Cattlemen's Association took it up that, you know, the reports were - some of them were probably not the way they 16. should have been and then this was brought in". Mr. Hockey went on to explain what he meant. His Honour's questions continued:- "That was following an inspection of Bond Springs? ---For perpetuity, which I recommended against. And that is also Mr. Heaslip's property? ---That is correct. I have hardly ever spoken - - - Has that come out in writing? --- Not that it was the result of Bond Springs but it all flowed on, yes. Yes, we have got a code of conduct. You can put two and two together, but this code of conduct that came out came out in writing? ---Yes, and it has proved to be unworkable". After some further questioning, Mr. Heckey said that he did not think that the property had reached the standard required under the relevant legislation to enable it to be eligible to be converted to perpetual tenure. He developed reasons for this. His evidence in chief then concluded. There is nothing in his cross examination which bears on the matter now in question. The points made by the Commissioner in what he said on 25 February 1987 may be summarized as follows:- (a) If what Mr. Hockey said were correct, he had shown considerable courage "in coming here and speaking as frankly as you have". (b) the Commissioner did not make the remarks without any background. He had heard a lot of evidence in the Inquiry (ce) (ad) (e) (f) (g) (h) (i) 17. about Singleton Station including evidence from Mr. Heaslip himself and he had seen other pastoral inspection reports about it from previous years. Pastoral inspectors perform an important public function. The community has an interest in the enforcement of conditions in leases as well as in the matters of land degradation and disease control. It is wrong for anyone to interfere with a pastoral inspector in preparing his reports either by creating circumstances where he feels he is under pressure or may feel he is under pressure, "as seems to have been the case here", or by asking him to make changes to his report. Inspectors should feel uninhibited in the free and frank expression of their observations and opinions. If Mr. Hockey were a police officer in uniform, there would be considerable outrage at interference with the preparation of a report. It makes a joke of the system of pastoral inspection to require three months' notice to be given. The joke becomes a giant farce if the inspection can be cancelled by the pastoralists at the last minute. There then followed the statement that the evidence which Mr. 18. Hockey gave seriously disturbed the Commissioner and raised questions about some form of patronage going on in the Territory. (j) Mr. Hockey was in a sense under the Commissioner's protection. If he felt at any time thereafter, that he was being discriminated against in the course of his employment as the result of the evidence he gave and the views he expressed, he was not to hesitate to bring that matter to the attention of counsel assisting the Tribunal. the Commissioner would treat it as potential contempt and deal with it accordingly. Upon the basis of the whole of this material, counsel for the Attorney-General has submitted that an ordinary fair minded observer, with full knowledge of the facts. would have a reasonable apprehension that the Commissioner was biased against the Government of the Northern Territory. But counsel did not rely only on what transpired on 25 February 1987. In his submission it was relevant, in determining whether a case of reasonable apprehension of bias had been made out, to take into account events, both before and after 25 February 1987, which bore on the subject. The principal event which occurred prior to 25 February 1987 was the making of another statement by the Commissioner the previous day, 24 February 1987. The Commissioner began that statement with the words, "Now, before we begin I have got some remarks I want to make. Perhaps they amount to two and a haif 19. years' frustration". The Commissioner mentioned at length repeated requests he had made for information concerning what counsel assisting him had described as the socio-economic implications for the town of Tennant Creek of a grant of title under the Aboriginal Land Rights Act up to the 1970 town boundaries. Amongst other things, he said that it had been apparent to him since before the claim began back in March 1985 that the effect of acceding to parts of it might have dramatic implications for the future growth and development of Tennant Creek. He continued, "The picture sprang to mind of a town ringed on its already inadequate boundaries by land the title to which was governed by the provisions of the Lands Rights Act". The Commissioner also said that Tennant Creek was an important Territory town and then posed a number of questions concerning the effect on the town's economy, and that of the Territory generally, if the claim were acceded to in its entirety. He said that, apart from the evidence of a town planner, which was of little, if any value, practically no effort had been directed to assisting him on these matters. He added:- "No approach to the resolution of the myriad of competing interests involved in this claim has so far been offered. We shall have to consider it piece by piece, every little culvert and drain, every borrow, pit and bore; every possible future requirement of a town of 3800 will have to be considered separately. There is no hope that the pieces in this jigsaw will fall nicely into place so that at the end a harmonious pattern emerges". He said that his concern about these matters should have been obvious from the pleas he had made for the participants to try to 20. reach some compromise. He then said:- "There is one blueprint for Tennant Creek which is arguably very bleak. The Northern Territory has offered no alternative, at least none that I am aware of. Still, that is typical of its approach to all of the claims under the Land Rights Act in which I have been involved. It has pretensions to be a government for all the people in the Northern Territory, to be about the business of building a new society, yet its actions consistently betray an underlying hostility to the basic principle of land rights for a dispossessed people. It does nothing to acknowledge the moral strength of any of their claims. It is this head in a hole in the ground attitude which continues to divide the community and which accounts for the absence of policies directed towards accommodating the special needs and aspirations of Aboriginal territorians. Why have not we been able to strike some balance? Because with the possible exception of the Warumungu people, nobody is seriously looking for it. Brinkmanship and delay is the name of the game. So be it, people get the qovernments they deserve. I am not now going to extend the time for completion of evidence and submissions to allow the Northern Territory time to redress what I am sure has been obvious toa it throughout this inquiry. It has had every opportunity to present an alternative blueprint to that which the claim itself proposes on behalf of the claimants. Apparently it has none. As I have said, that I suspect is because it has no vision for incorporating Aboriginals into the Northern Territory of the future except on its terms, and I will not be searching amongst the materials accumulated during this inquiry to prepare comments for the Minister". The emphasis is added. It may be said in passing that there is little wonder that the Commissioner felt a sense of frustration. The transcript does not disclose any reaction whatever to his remarks by any counsel, including counsel for the Northern Territory Government. 21. Instead, counsel proceeded to get on with the business for the day. The reaction to what the Commissioner said to Mr. Hockey the following day was similar, Immediately he said what he did to Mr. Hockey, counsel for the Northern Territory Government asked Mr. Hockey a question about some aspect of the detail of his evidence. Mr. Hockey then departed. No objection to what the Commissioner had said was raised by counsel for the Northern Territory Government. There was thus absolutely no reaction to either statement by counsel for any party. On 26 February 1987, Mr. Gargan was called to give evidence. His evidence continued over until 27 February 1987. He referred to a draft Tennant Creek plan which was not "a finished product". He said that it was correct to say that there was still no plan or strategy about where Tennant Creek was going. He said the matter could drag on for some time, but that was not his intention. He added that he was sure the Government would be disappointed if he did not proceed to finalize that as a matter of some priority. He had been told by the Chief Minister to get it done as soon as he reasonably could. Mr. Gargan said that the day he gave his evidence was the first day he had heard of requests for information about Tennant Creek which were then almost two years old. He did not know whether a report of an earlier discussion about the matter before the Tribunal had been communicated to the Government or not. The press became aware of what the Commissioner had said about patronage on 25 February. On 26 February 1987 a report of it appeared in the daily newspaper circulating in the Territory, 22. the Northern Territory News. The matter was also the subject of reports in television and radio newS broadcasts. Against the background of the coming election, the matter was soon well out of hand. The Leader of the Opposition called upon the Chief Minister, Mr. Hatton, to stand down pending an inquiry into the system of pastoral inspections in the Northern Territory. This was widely publicised. On 2 March 1987, the Chief Minister responded in a statement in which he was reported as saying that the Commissioner had allowed the Warumungu Land Claim to be turned into "an election beat-up". Mr. Hatton said that he found it strange that the Commissioner had called for an urgent response (about plans for Tennant Creek) soon after the election was called. He also drew attention to the fact that counsel assisting the Commissioner was a Labor Party candidate in the election. The same issue of the newspaper reported a statement by the Commissioner in which he said that the Chief Minister had been impudent and unfair. Counsel assisting the Commissioner is a Mr. Reeves. He is the President of the Northern Territory Branch of the Australian Labor Party and was the candidate who stood against the Minister for Lands at the election. On 3 March 1987 the Commissioner called a meeting of counsel for the parties in the Warumungu Land Claim in his chambers, Counsel were handed an aide-memoire which the Commissioner had prepared in advance. It said that the Commissioner was not prepared to go on with the Inquiry with the cloud left hanging over him by the Chief Minister and the newspaper. He referred to 23. a number of imputations which he said were open as a result of what the Chief Minister had said and dealt with some other matters. He said that neither he, nor any member of his staff, had called in the media to report what he had said after Mr. Hockey's evidence. This was a reference to the playing back to the media of the official tape recording made of the proceedings of 25 February. Some of the media had requested this so that their reporting of the day's proceedings would be more accurate. The Commissioner then said that he wanted from the Attorney~General a letter or statement "made in open session, generous, fulsome" and to the effect of a draft which contained statements in which the Attorney~General dissociated himself from comments in fhe newspaper referring to his conduct of the Inquiry, accepted unreservedly that neither the Commissioner nor his staff sought the attendance of the press to hear evidence, stated that he did not believe that anything the Commissioner had said or done in the course of the Inquiry had been in any way influenced by the fact that there was an election at the end of the week and that he had confidence in the Commissioner fairly and impartially to perform his functions in relation to the Inquiry. On 4 March 1987, Mr. Reeves was interviewed on television. Mr. Reeves said that the Attorney-General had abrogated his responsibilities because he had the responsibility to defend the judiciary in the Territory. He said, "I think this Government is trying to cover up the whole issue, that they have got a vesponsibility to defend the judiciary and they have got a 24. responsibility to withdraw the remarks because they know, as everybody does, thdt they are untrue". He went on to say how difficult it was for the Inquiry to proceed when the head of the Government, which was one of the parties, was attacking the Judge's integrity and saying that he was politically biased. He said that. if the Attorney-General were unwilling to dissociate himself from the remarks, the Attorney-General should show cause why the Government thought the Judge "was politically biased and therefore unable to continue to act". He added, "They did neither; they didn't put up and they didn't shut up. They shut the Judge up". Mr. Reeves said that the Attorney-General had done that by suygesLing that, in his capacity as counsel assisting the Tribunal, he was pursuing political ends. He said that he had discussed Mr. Hockey's evidence with the Leader of the Opposition. He denied that there was any conflict of interest. The interview concluded with a statement that the matter could be resolved by Mr. Hatton withdrawing his remarks. He suggested that he could say that they were made in the heat of an election campaign and, if he wanted to answer the allegations made by Mr. Hockey, he could simply have his counsel appear before the Commissioner to do so. What was said by Mr. Reeves during the interview may not have been as relevant as it appears to us to be, if it were not fora statement made by the Commissioner during the course of the proceedings on 23 March 1987 in which he said, "I did authorize counsel assisting to take part in a radio interview for the purpose of trying to remedy the damage done to this Inquiry by scandalous public remarks made by the Chief Minister and other 25. remarks attributed to him in the Northern Territory News on the Monday before". The Commissioner did not seek to correct, qualify or disown anything that Mr. Reeves had said during the interview. We shall refer to other matters in the Commissioner's statement a little later. The election was held on Saturday, 7 March 1987 and the Government was returned. In a letter dated 9 March 1987, the Attorney-General wrote to the Commissioner with reference to what he had said in his aide-memoire of 3 March 19987. The Attorney said that he regretted that he could not meet his Honour's requests and could not provide him with a response in the terms which had been requested, He said that the issue of the integrity of the judiciary and of the Aboriginal Land Commissioner was of the utmost importance to him. He said that he wished to study the transcript carefully, consider all the circumstances and seek the advice of one or more senior counsel. He would then provide a considered reply. On 9 March 1987 the Commissioner wrote to the Attorney saying that the only proper course was for him, that is, the Commissioner, to stand down from active participation in the work of the Supreme Court pending the Attorney's consideration of the Chief Minister's allegations. He said the Chief Minister had been notified accordingly. On 13 March 1987, the Attorney wrote to the Commissioner saying, amongst other things:- 26. "2. I accept that neither you, nor your associate nor your secretary sought the attendance of the media representatives to hear evidence. 3. I accept your assurance that nothing you have said or done was influenced by the fact that there was an election pending. 4. It is with great regret that I must inform you that I have instructed those representing me to ask you to stand down from the Waramungu Land Claim. Upon the advice I have received, the public can hardly fail to entertain a reasonable apprehension that you might not bring an unprejudiced mind to the resolution of the questions involved in this matter". So far as the evidence discloses, no further mention was made by anyone of the Commissioner standing aside from the Supreme Court. On 16 March 1987 the Commissioner wrote a letter to the solicitor for the Northern Territory in which he said that he would determine, as soon as possible, a date for the hearing of the application that he not sit. He also said that, to facilitate the proper discussion of the issues involved in the application, he directed the Attorney-General, no later than 20 March, to have delivered to him, and served on the solicitors for all other parties, a statement in writing of the facts upon which the Attorney relied in support of his application. During the week of 16 March 1987 the Inquiry had moved to Alice Springs where the inspection of the notes made by the anthropologists was conducted. The Commissioner was not sitting, but was available in his Chambers. On the morning of 17 March senior counsel for the Attorney-General made an attempt to see 27. the Commissioner for the purpose of having a date fixed' for the hearing of the application. There is on the face of the evidence a conflict as to what precisely happened in the Alice Springs Court House on that day. There is sworn evidence given by the solicitor for the Northern Territory Government. There are statements made ina letter written by the Commissioner on 17 March which are in conflict with that evidence. It is not necessary to attempt to resolve this conflict. If it were, such resolution could only come about after a hearing in which those present were called to give evidence and cross-examined, We hasten to add that we do not include the Commissioner as being amongst those who could give relevant evidence. He was not present. The statements in his letter are plainly made on information conveyed to him by others, particularly counsel assisting him, Mr. Reeves. The next matter of consequence occurred on 23 March 1987, There was then a sitting of the Inquiry at which all parties were represented. The proceedings opened with a statement by the Commissioner in which he made reference to the history of the matter, to a number of letters and to what had been said about the controversy in the press. Eventually the Commissioner said that he did not intend to allow the occasion to be used to create public misapprehension about the integrity of the Inquiry where none existed. He said that he intended strictly to control what occurred. He added:- "I take the view that the Attorney-General has no right to make the application, that it is unsatisfactory that I should be put in a position where I am seen to be sitting as a Judge in my own 28. cause, and that counsel for the Attorney should be very wary of what he says publicly on this occasion". The Commissioner then took appearances. Counsel assisting the Inquiry submitted that counsel for the Attorney-General should be required to state in what precise respect it was alleged the public might apprehend that the Commissioner was biased and in respect of precisely what questions it was alleged that that bias might operate. After some discussion the Commissioner directed counsel for the Attorney-General to provide the particulars as soon as possible. He stood the matter over until 2p.m. The particulars were furnished. They opened with the following statement:- "... ain the circumstances of certain comments which have been made by the Commissioner in the conduct of the Inquiry, a fair minded observer might entertain a reasonable apprehension that the Commissioner may not bring an impartial and unprejudiced mind to all of the questions involved in the Inquiry". There followed detailed reference to the transcript at pages which have been referred to earlier in these reasons and the remarks made by the Commissioner set out in his aide memoire of 3 March 1987. Reference was made to the fact that the remarks were made during the course of an election campaign. Also particularized were the Attorney-General's view of relevant questions in the Inquiry which involved the Government of the Northern Territory. These included detriment suffered by the 29. Northern Territory generally, the people of Tennant Creek and the proprietor of the Singleton pastoral lease. Reference was made also to the bona fides of the Northern Territory Government in a number of respects. These concluded with a general reference to the bona fides of the submissions of the Government in relation to all issues in the Inquiry. The statement said that the Attorney-General did not concede that the reasonable apprehension needed to relate to an "issue" in the strict sense. When proceedings resumed after 2p.m., the Commissioner made a further statement. He said, without hearing counsel, that the particulars given did not comply with the direction he had given. He went on to give reasons for this view. He then referred to the fact that the application was not made by a private litigant but by the Attorney-General for the Northern Territory. He said that the Attorney-General did not allege actual bias, only an apprehension of bias. He continued:~ "He (the Attorney-General) is uniquely placed as the First Law Officer of the Northern Territory and as an important participant in this Inquiry representing interests other than those of the claimants to dispel at once any public apprehension of bias. This he can do by asserting emphatically and publicly that he has every confidence in me to bring an impartial mind to bear on the issues which it is for me to resolve in the course of this land claim Inquiry. Indeed, as he alleges no actual bias on my part, he has a clear duty to do just this and, I think it may be assumed, that the public he represents will be most receptive to such reasurrances". The Commissioner referred to the statement he had made about requiring further information concerning the Government's plan 30. for Tennant Creek. He referred to the fact that all other parties to the Inquiry wished him to remain. He dealt with his remarks made in relation to Mr. Hockey's evidence. He said the evidence was "at most a side wind in the whole Inquiry". He said it was unlikely to have the slightest effect on any comments he might make in relation to the use by the Singleton Station of a commonage reserve. He said it would be for the Minister for Aboriginal Affairs to resolve that matter, not for him. He added, "I do not resile from the concerns I expressed about the code of conduct, but as it turns out it has nothing to do with the issues that confront me in this Inquiry". The Commissioner then referred to some further matters and to private correspondence between himself and either the Attorney-General or the solicitor for the Northern Territory. He said that these letters were irrelevant, but offered them for inspection. He concluded his remarks as follows :- "I dismiss the Attorney-General's application. I have the utmost confidence in his ability as the First Law Officer in the Northern Territory, with all the resources available to him, to dispel any concern about my impartiality in this Inquiry. So the Inquiry will adjourn to complete the anthropological evidence on 21st April of this year. I thank you for attending". The Commissioner then adjourned. It is apparent that he had dismissed the application without hearing any submissions at all from counsel for the Attorney-General. 31. The following day,' 24 March 1987, there was delivcred to the Commissioner a letter from the Attorney-General. The letter referred to what the Commissioner had said on 23 March, particulary to that part of it in which the Commissioner had said that the Attorney-General had not made the appliction on the basis of actual bias and ought to dispel any public apprehension by a public statement. The letter continued:- "If I were satisfied that there was no actual bias, I would have considered adopting the course which your Honour suggested that I make a public statement to dispel concern about your Honour's impartialilty in this Inquiry. Tf I were : satisfied that there was conclusive evidence of bias on the pact of your Honour, different questions would have arisen. However, my overriding concern has been to protect the public esteem and respect for the judiciary. Consequently, I have taken the view that it would be unseemly for me publicly to pry into the mind of any judicial officer as to whether he or she is in fact biased. I respectfully refer you to de Smith: Judicial Review of Administrative Action, 4th edition, 261 and.the cases there cited. Even if the evidence conclusively established actual bias, I consider it proper and fitting that I should confine myself to the submission thata reasonable apprehension of bias had been established. My decision, therefore, not to pursue the question of actual bias does nok either logically or in fact involve a conclusion that actual bias does not exist. The objective evidence available to me is set out in the Statement of Facts filed in support of my application and that which has been said and done since the document was filed. I remain of the view that all that evidence including your Honour's refusal to hear my Counsel on the matter constitutes a basis for reasonable apprehension of bias. I cannot, therefore, accede to your Honour 's suggestion Lhat T make a public declaration to the contrary. I have not felt 1t appropriate in this letter to address the other matters raised by you which relate to my actions as a litigant rather than to my actions as first law officer". 32. That concludes the account of the evidence. We turn to the resolution of the questions which arise for decision. There is no suggestion in this case that the Commissioner is disqualified from hearing the land claims because of some direct pecuniary or personal interest in their outcome. The case is one of reasonable apprehension of a bias by reason of a pre-judgment of an issue or of a generally adverse attitude towards a party. The relevant principles governing disqualification have been expounded in many cases and are variously expressed. The principle was stated in Livesev v. The N.S.W. Bar Association (151 C.L.R. at pp. 293-94) as follows: "That principle is that a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he night not bring an impartial and unprejudiced mind to the resolution of the question involved in it." See also The Queen v. Watson Ex parte; Armstrong 136 C.L.R. at pp. 262-4 and Murphy v. Gush (1986) 60 A.L.J.R. 523. The principle in question has been applied in the past to commissions or tribunals which were not courts. See, for example, The ueen WA Commonwealth Conciliation and Arbitration Commissioner: Ex Parte The Angliss Group (1969) 122 C.L.R. 546 and Murphy v Gush (supra). In the case of commissions of inquiry, however, the application of the principle will of course depend upon somewhat different considerations from those which apply in legal proceedings with definite parties and defined issues. In The Queen v Commonwealth Conciliation and Arbitration 33. Commissioner: Ex Parte The Angliss Group (supra) it was said (p.553):- "Tt is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the Field of inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing private rights. Amongst other things, it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new cights and in the modification of existing rights." The impugned conduct of the Commissioner must be viewed in the context of all the relevant background and facts earlier marrated by us. The Warumungu claim is of long standing. It was made as long ago as 1978. The Commissioner's association with this claim commenced in March 1985. As our earlier narrative of facts discloses, the inquiry is well advanced. From March to July 1985 there were some 42 days of hearing. The hearing recommenced on 23 February 1987 and continued until 6 March when it was adjourned to 21 April. The comments of the Commissioner on 24 February plainly reflect the Commissioner's sense of frustration at what he perceived to be the absence cf assistance from the Northern Territory Government in adducing evidence relevant to the inquiry, including the prospective boundaries and expansion of the Municipality of Tennant Creek and questions of water supply, public recreation, roads, stock and pastoral leases and conservation. The Commissioner had been requesting assistance 34. from the Northern Territory Government since 31 March 1985 as the bady best able, in hia view, to give it and in his opinion it was not being given. It is not for this Court to say whether the Commissioner's sense of frustration was or was not justified; but it is, in our view, clearly open to him to criticise a participant in the inquiry, whether the Government or some other body, if in his view proper assistance was not being given, provided the criticism is within acceptable limits. The Commissioner's remarks made on 25 February were made in the context of evidence concerning Singleton Pastoral Co. Pty. Limited, the lessee of Singleton Station. As we mentioned earlier, the principal of that company, Mr. Heaslip, was the President of the Country Liberal Party of the Northern Territory which has been in government since self-government in 1978. The Commissioner's reference to patronage carries with it overtones of impropriety and suggests that because of his connection with the party in political power, Mr. Heaslip and others may have been given lenienE treatment in relation to the inspection of their properties by pastoral inspectors. On 18 February 1987, it had been announced that an election for the Northern Territory Parliament was to be held on Saturday, 7 March and it was shortly after that announcement that the first of the impugned statements of the Commissioner was made. The statements were made, therefore, at a time when an election was pending. It could not be suqgested that the Commissioner should have conducted the Inquiry differently because an election campaign was pending, but if he felt the need to make statements 35. about the Government which was standing for re-election, it would have been wise to choose his remarks with some care because of the delicate situation which would prevail until the election was over, a Situation which itself might lead to remarks he made either being misunderstood or exaggerated or distorted when reported in the press. His remarks of 24 February culminating with the words "people get the governments they deserve" is the invocation of a well-known expression of somewhat ambivalent meaning. What the Commissioner there said needs to be read in the context of the remarks which we have earlier set out. The like must be done in relation to what he said the following day about patronage. There are some other matters that ought to be recalled, Counsel assisting the Commissioner, Mr. Reeves, was the President of the Northern Territory branch of the Australian Labor Party and a candidate standing against the Minister for Lands in the pending election. Then came the publicity in the press of certain of the evidence of Mr. Hockey and the Commissioner's remarks in relation to it. The Leader of the Opposition publicly called upon the Chief Minister to stand down pending an inquiry into the system of pastoral inspections in the Northern Territory. This demand gained wide publicity and was undoubtedly a significant event during the election campaign. The Chief Minister himself then made a statement of 2 March 1987 to which we referred earlier. This was followed by the Commissioner's summoning counsel to chambers and making a statement to them on 3 March as set out in the document headed "Aide Memoire". Mr. Reeves gave an interview on radio on 4 March 1987, a few days 36. pefore the election was held. The events at the Court House at Alice Springs of 16 March and thereafter then occurred to which we have already referred. The statements and conduct of the Commissioner impugned by the Attorney-General in these proceedings must be viewed overall and their likely effect considered as a whole. The whole of the Commissioner's conduct is before us and it is its likely effect with respect to the future hearing of the land claims that is relevant. Tt is as plain as can be that once the media became aware of what the Commissioner had said about patronage on 25 February, and published a report about the matter in the press, the whole matter got out of hand. An election issue of a high order had arisen involving assertion and counter assertion by the Chief Minister and the Leader of the Opposition, public statements by counsel assisting the Commissioner, counsel himself being politically involved in the election, and statements by the Commissioner to counsel and in public during the Inquiry and in correspondence. The whole affair is most unfortunate. Be that as it may, whether the Commissioner is disqualified from further hearing the land claims must be considered in the context of the issues arising in those claims. As the issues differ in each claim it is necessary to consider the Commissioner's conduct with reference to each of the two claims. First, we turn to the Warumungu claim. 37. The only definitive findings required to be made under the Statute by the Commissioner in the course of his inquiry are those referred to in para. 50 (1)(a). He has to ascertain whether Aboriginal claimants or any other Aboriginals are traditional Aboriginal owners of the land which is the subject of the claim and he has to report his findings to the Minister and to the Administrator of the Northern Territory and, where he finds there are Aboriginals or other traditional owners, he is obliged to make recommendations to the Minister. This particular issue is one in respect of which any comments by the Commissioner, which are here complained of, would appear to have no relevant bearing. In addition to making findings, however, the Commissioner is required, in making his report, to have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed and is required by the Act to comment on several matters. Two of the matters on Which he is required to comment are set forth in paragraphs (b) and (c) of sub-s, 50(3). They are as Follows:- "(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part; (c) the effecl which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region;" So far as para. (b) is concerned, there is some suggestion that there was a right in Singleton Station to run cattle ona commonage which was within the land claim and that this might be adversely affected, As regards para. (c), although the claim might affect existing or proposed patterns of land usage in the 38. region, the complaint of the Commissioner which he was voicing, when he made the comments complained of, was rather that he had not been given assistance as to what land usage was proposed for the region. One burden of the complaint made by the Commissioner was that he had not been given the assistance that he felt he was entitled to expect from the Government of the Northern Territory. However, no particular issue emerges in relation to the Warumungu land claim on which he would have to make a finding or indeed on which he would have to do anything more than make a recommendation. Furthermore, what he said on 25 February 1987 when read as a whole, indicates that the Commissioner was acutely aware of the need to balance carefully, on the one hand, the interests of the Aboriginal claimants and. on the other, those of the townspeople of Tennant Creek and also their. and the public interest, in its future development. In all those circumstances, it is difficult to see that what he said would lead the participants or the public to entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the formation of his comments on these matters when he reported to the Minister. It should also be noted that there are no parties in the strict sense before the Commissioner and his comments have no operative effect as to any legal rights. He was holding an inquiry in accordance with the Act and in this inquiry there are participants including the Land Councils representing claimants and the Attorney-General for the Northern Territory representing that Government. If, following the report of the Commissioner to the Minister 39. pursuant tos. 50 of the Act, the Minister recommends to the Governor-General that land the subject of the claim be granted for an estate in fee simple to the relevant Land Trust, then the Commonwealth is not liable to pay to the Northern Territory Government any compensation by reason of the making of that grant (sub-s. 3A(2) of the Act). If, on the vesting in a Land Trust of an estate in fee simple in any of the land that is the subject of the Warumungu claim, it is being occupied or used by the Northern Territory Government or with its licence or permission, it is entitled to continue that occupation or use for such period as the land is required by it (s. 14). Although some of the Commissioner's statements and conduct could reasonably be regarded as severely critical of the competence of the Northern Territory Government and as casting aspersions upon its integrity concerning its policies in relation to pastoral leases in the Northern Territory, it could not, in our opinion, be reasonably apprehended that the Commissioner might not resolve the issues before him in the Warumungu claim in a fair and unbiased way. The Commissioner will, if he continues with the Warumungu inquiry, deal with the issues which we have briefly summarised above. The resolution of those issues would not be affected by any evident attitude of the Commissioner's disaffection with the Northern Territory Government and its policies in relation to land tenure. Questions of disaffection with the Northern Territory Government and other matters that are relied upon as constituting the impugned conduct of the Commissioner cannot in our view reasonably be said to call for his disqualification in respect of the Warumungu land claim. 40. It is not necessary for us to consider whether, if the case for disqualification in respect of the further hearing of the Warumungu land claim had been made out, the Court could in the exercise of its discretion nevertheless decline to make an order of prohibition. All we need say about this is that, considering the history of this land claim and the fact that it is in its closing stages following very extensive hearings, views and submissions, these may provide powerful reasons why in the public interest the Commissioner should continue to hear this claim. We turn to the Kenbi Land Claim. This claim is now over eight years old but to date there has not been a hearing of it. There have been various applications concerning procedural questions and the status of certain of the land included within the claim. As we said earlier, the High Court held in The Queen v. Toohey Ex parte Northern Land Council (supra) that the Commissioner was bound to embark upon an inquiry into the reasons why the Administrator made the planning regulations under the Planning Act. If the regulations are valid, most of the land in the Cox Peninsula, the subject of the claim, would not be available for claim under the Act. It falls to the Commissioner fo determine whether the relevant requlation (reg. 5) was made for the purpose of defeating the claim by the Aboriginals to the land described in Schedule 3 of the requlations. The issues arising in this claim will involve the Commissioner inquiring into the reasons why the regulations were made and into any question of bad faith of the Northern Territory Government in recommending to the Administrator of the Northern Territory that the regulations be made. 41. Thus, the Commissioner will be required to determine the bona fides of members of the Government in the making of a Cabinet decision which led to the making of regulations. As the statement of the claimants claim makes clear, the essential question in the Kenbi claim is whether the regulations were made bona fide or for the ulterior purpose of defeating or impeding the land clain. Members of the Ministry of the Northern Territory Government may be called to give evidence and the Commissioner required to determine their credibility and assess their evidence. The Commissioner's statements and conduct, especially on 24 and 25 February, must be considered in the context of the election which was to take place on Saturday, 7 March having been announced as recently as 18 February. His Honour' s remarks were critical of the Government of the Northern Territory. On 24 February he said of the Government: "It has pretensions to be a government for all the people in the Northern Territory, to be about the business of building a new society, yet its actions consistently betray an underlying hostility to the basic principle of land rights for a dispossessed people," The Commissioner said during the evidence of Mr. Hockey, "it just makes a joke of the whole system of pastoral inspection" and "a joke apparently endorsed by Mr. Hatton when he was Minister" (i.e. Minister for Lands). A little later these comments were followed by the remark about patronage. We mention these particular matters, but they must be read in the context of the events as a whole. "Ve 42. a * The issue of the bona fides of the Northern Territory Government is different from the questions arising under paragraphs (b) and (c) of sub-s. 50(3) in the Warumungu clain. It is an issue upon which the Commissioner, if he hears it, will have to make a decision as to the bona fides in the legal sense of the Government. It is not simply that he has to make a comment which a Minister may or may not act upon. The remarks made by the Commissioner which have heen objected to relate closely to the question of the good faith of the Government which is raised in the Kenbi Land Claim before him. It was submitted by the counsel for the respondents that any problem should be overcome by the making by the Attorney-General of 2 public statement that he himself had confidence in the Commissioner's integrity and_ that, in his view, there was no ceason why the Commissioner should not continue with the hearing. This is something which the Commissioner himself said in the statement he made on 23 March 1987. Until his letter of 24 March 1987, the essential parts of which have been earlier quoted, the Attorney had not made any suggestion of actual bias. He had not referred to that matter one way or the other. His letter of 24 March 1987 was written after the Commissioner's statement made on 23 March 1987, in which the Commissioner had said, with a good deal of emphasis, that, upon the basis that neither the Attorney nor the Government in fact considered him to be biased, it was for the Attorney to make a public statement to this effect. In this way there could be dispelled any anxiety by those members of the public who might 43. hold a reasonable apprehension that the Commissioner was biased. The Attorney was said to be in a different position from a private party to litigation because he was the First Law Officer and had the responsibility of maintaining public respect for the integrity of the judiciary and of defending it from unjustified attacks. Tf he did not allege actual bias. he had a positive duty to allay any suspicion or fears in that regard which might be abroad in the communitv. The Attorney's respense to that statement made in his letter ad of 24 March 1987 made the Attorney's position clear. He said that, if he were satisfied that there was no actual bias, he would have considered adorcting the course suagested by the Commissianer. But he added Ehat, even if the evidence conclusively established actual bias. he considered it proper and fitting that he should confine himself to the submission that a reasonable apprehension of hias had been established. The last statement is in conformity with the trend of current authority. In Armstrond's case (supra), the majority of the High Court said (136 C.L.R. at p. 258) that, in stating that there was actual bias, the wife in that c ft) se had gone further than she needed to go, "and as some would sav, further than it was right for her to ga". In de Smith's Judicial Review of Administrative ie ct cr Action, 4th ed., p. 261, it is sai hat coucts are not concerned with the question whether an adjudicator was in fact biased. The current editor anes on to say that the reason for this attitude ra fon is presumably that if would be unseemly for a court to ourpor any judicial officer. However, it we} n he pe oa] rom a) ct Lom ry un cr rey cr oO ie] Fh a ps a A:hh 44. is said that there is probably no rule of law which absolutely t a precludes a court from holding that an adjudicator was in fa | biased. The matter is left in that way. ; . The Attorney's approach. reflected in his letter, was that it was not for him to say whether the Commissioner was biased or ' not. All he could do was to look at the ohjective facks and : conclude that a fair-minded member of "the public would have a | "reasonable apprehension of bias if he considered them. Tt was ' not, therefore, appropriate for him to take it pon himself to I make public statements about confidence in the Commissioner's ability to proceed. Tt should be mentioned that the Attorney had more than one function. He did have the obligations, 'a which both the Commissioner and he himself referred. of maintaining public f the judiciary. But he also had [s) eanfidence in the integrity obligations ta tender ta the Government, of which he was a member, proper advice in relation toa the land claims generally and in relation to the problems toa which the Commissioner's remarks had given rise. He had this latter duty in the context of a situation in which the Commissioner, in the statement made by himon 23 March 1987, almost a month after the impugned statements had been made. had said that he did not resile from the criticism he had made of the "code of conduct" in relation to inspections. He had made that criticism in the same statement in which he referred to vatronage. A fair-minded observer would be justified in thinking that the Commissioner, having reflected on Ehe matter, remained of the view that there were questions of ee 45. patronage in the Territory. In all these circumstances we 'have reached the conclusion that it was an over simplification of the matter to say that it would be properly solved by an appropriate statement by the Attorney saying that he had confidence in the Commissioner's ability to continue with the hearing. If the Attorney had chosen fo take this course, that may have been one thing: but he was not bound to do so"and his failure in this regard is no answer to the claim which he makes here. The submission made by counsel for the respondents is therefore rejected. rs Having considered ail th material before us. it is our Oo Opinion that T& might reasonably be apprehended by a fair-minded "person that the Commissioner might not resolve the questions before him in the Kenbi claim relating to the validity of the planning regulations with a fair and wumnprejudiced mind. The question of actual bias or prejudice 1s not the question before us. That is not a relevant matter for inquiry. The only question before us is the application of the objective test to which we have referred. The remarks of the Commissioner which led to these proceedings were made ab a time when a political camoaign was being fought for the election of the WNorthern Territory Government. Personalities involved in the land claims themselves included personalities of different olitical re] ie} allegiances. The public's awareness of the ommissioner's remarks was heightened by the publicity necessarily attached to the election. The vemarks related to questions that became politically sensitive in the milieu of Northern Territory ES Py 46. politics. Sitting on this application, we in this Court are -removed from the fray and the heat of the. moment, thus -° facilitating the proper application of the objective test of the fair-minded person's reasonable apprehension of pre-judgment. Having reflected on the mattér, we have reached the clear conclusion that in all the circumstances the Commissioner should be prohibited from proceeding further with the Kenbi Claim. In the -result the writ of prohibition which the Attornev-General has sought will go, but only in respect of the "_.. .-Kenbi..Claim. The proceedings under the Judicial Review Act will, for the reasons earlier given, be dismissed. It follows that the parties have had mixed success. In those ciccumstances we think it better if- we do not deal now with costs. We shall hear argument about that matter on a date to be fixed. Counsel for Applicants: Mr. D.M.J. Bennett, 9Q.C., with Mr. J.D. Barrett and Mrs. A.C. Bennett Solicitors for Applicants: Solicitors for the Northern Territory of Australia, Freehill Hollingdale & Page Counsel for Narthern Territory Development Land Corporation: Mr. J. Spigeiman, Q.C. with Ms. A. Bowne Solicitors for Northern Territory Development Land Corporation: Freehill Hollinagdale & Page Counsel for Northern Land Council: Mr. J. Sher, Howie v2 a a Pas wT oy = sy vw 47. Solicitors for Northern Land Council: Counsel for the Commonwealth of Australia: Solicitors for the Commonwealth of Australtfa: Counsel for Municipality of Tennant Creek: Solicitors for Municipality of Tennant Creek: Dates of hearing: we ee ee Ae ee ee Le Northern Land / Cauncil by their Sydney agents, Dawson Waldron Mr. OD. Grieve, Q.c. T.S. Rilev with Mr. Australian Gavernméent Solicitor Mr. P. Webb, 0.C. with Mr. P. Brachter Messrs. Aldermans of Alice Springs by their Sydney agents, Tress Cocks and Maddox 30, 31 March and 1 April 1987 lcernty trac this and the 4(, preceding pages are a true capy of the reasans for judgment hereia of the Court te Dated | 3 Apt 1987 Associate