CATCHWORDS ADMINISTRATIVE LAW - Application under s.39B of Judiciary Act - Natural justice - Interests held by mining company over land in Stage II of Kakadu National Park - nature of interests - Cabinet decision to submit Stage II for world heritage listing under the Convention for the Protection of the World Cultural and Natural Heritage - whether Cabinet decisions under the prerogative justiciable - whether particular Cabinet decision justiciable - whether mining company denied natural justice - whether mining company's rights affected by the decision. World Heritage Properties Conservation Act, 1983. National Barks and Wildlite Conservation Act, 1975. National Parks and Wildlife Conservation Amendment Act, 1987. Northern Territor Seif-Government) Act, . Lands Acquisition Act, 1955. Mining Act, 1980 (N.T.). Atomic Ener Act, 1953. Judiciary Act, 1903, s.39B. THE HONOURABLE BARRY COHEN MINISTER FOR ARTS HERITAGE AND ENVIRONMENT AND ORS. v. PEKO-WALLSEND LIMITED AND ORS. No. NTG1 of 1987. Bowen C.J., Sheppard, Wilcox JJ. Sydney 7 September, 1987 eo _— ee I IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 1 of 1987 GENERAL DIVISION ) ON APPEAL FROM THE JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE BARRY COHEN MINISTER FOR ARTS HERITAGE AND ENVIRONMENT Pirst Appellant THE HONOURABLE LIONEL FROST BOWEN ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Appellant THE COMMONWEALTH OF AUSTRALIA Third Appellant AND: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED Pirst Respondents ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent CORAM: BOWEN C.J., SHEPPARD, WILCOX JJ. DATE: 7 September, 1987 PLACE: Sydney. ane MINUTE OF ORDERS THE COURT ORDERS THAT: NOTE: The appeal be allowed. The orders made by the learned primary Judge on 22 December 1986 be set aside and in lieu thereof it be ordered that the order nisi be discharged with costs including reserved costs. The first respondents pay to the appellants their costs of the appeal. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. . * * ¥ poe ie ee wee ree. F wr eer ne aot IN THE FEDERAL COURT OF AUSTRALIA } NORTHERN TERRITORY DISTRICT REGISTRY) No. NTG 1 of 1987 GENERAL DIVISION CORAM: DATE: BETWEEN: ) ON APPEAL FROM THE JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA AND: THE HONOURABLE BARRY COHEN MINISTER FOR ARTS HERITAGE AND ENVIRONMENT First Appellant THE HONOURABLE LIONEL FROST BOWEN ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Appellant THE COMMONWEALTH OF AUSTRALIA Third Appellant PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED First Respondents ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent Bowen C.J., Sheppard, Wilcox JJ. 7 September, 1987. appr so eee 2. REASONS FOR JUDGMENT BOWEN C.J. I have had the advantage of reading the Reasons for Judgment of Wilcox J. I agree with the orders which he proposes and generally with his reasons. I wish to add = some observations. The Executive Under our Constitution the executive power of the Commonwealth is exercisable by the Governor-General. There is a Federal Executive Council to advise the Governor-General, the members of the Council being chosen by the Governor-General and sworn in as Executive Councillors (ss.61-62). When the Constitution refers to the Governor-General in Council it is construed as referring to the Governor-General acting with the advice of the Federal Executive Council. The Governor-General may appoint officers to administer such departments of State as the Governor-General in Council may establish. They are members of the Executive Council and are the Ministers of State for the Commonwealth (ss.63-64). The Governor-General, except in very limited instances, acts on the advice of his Minister or Ministers conveyed to him in Executive Council. Often the advice flows tem ee creer on meets ee ee Come Fe Be ~ > i eee ee eee 3. from a decision of Cabinet. However, Cabinet 1s not mentioned un the Constitution and 1s not in any formal legal sense the Executive. I mention this because the declaration of the learned primary Judge which is challenged on this appeal was a declaration that "the decision of the Executive made on the 16 September 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List is void". The only decision was a decision of Cabinet. The matter did not come before the Executive, that is the Governor-General in Council. The parties to the appeal agreed that the reference to the Executive in his Honour's declaration was to be taken as a reference to Cabinet. The learned primary Judge is, of course, as familiar as anyone with the distinction. Indeed, he was conscious of the fact that although formal decision-making power rests with the Governor-General in Council the real decision-making power rests with the Cabinet. The decision dealt with by the declaration was not, and did not have to be, referred to the Governor-General in Council. Under the Convention for the Protection of the World Cultural and Natural Heritage ("the Convention") the relevant State Party was the Commonwealth of Australia. Being of opinion that the decision was reviewable, and should be reviewed, the learned primary Judge acted correctly in confining the relief granted to a declaration and such declaration was binding on the Commonwealth represented before the Court by the Attorney-General. Whether his Honour acted correctly in — Ts OT os wy - pee ee ee ee eg "——~ we ~ms tr ee ene ween oe 4. reviewing the decision of the Cabinet in relation to this matter is another question. I make these observations by way of introduction to the questions whether a decision of Cabinet is reviewable by the Court and, if so, whether the particular decision in this case is itself reviewable. In the past it has been customary in Australia for Parliament to pass Acts which impose duties or confer powers or discretions upon Ministers and not unusual to impose duties or confer powers or discretions upon the Governor-General in Council. I am not aware of any Act of Parliament which imposes a duty or confers powers or discretions on Cabinet. The course of decision in the Courts has been to hold that the decision of a Minister 1s open to review. This review has been exercised under the common law leading in appropriate cases to the grant of writs of mandamus, or prohibition, or the grant of an injunction, or the making of a declaration. The process of review has been simplified and rationalized by the Parliament in recent years by such Acts as the Administrative Decisions (Judicial Review) Act, 1977. The increasing activities of government affecting citizens has led to a situation where ministerial responsibility is not able to reach down far enough to supervise the detailed dealings of government with members of the public. As a consequence the wet tose 5. courts have increasingly been brought in to resolve disputes arising between aggrieved members of the public and the administrative arm of the government or its servants. The role of the Courts has not been that of substitute decision-making. Their role has been to maintain an oversight of legality and fairness in the decision-making process. For a time it was considered that although the Courts would, in this sense, review the decisions of Ministers given in pursuance of statutory powers they would not review such decisions by the Governor-General or the Governor-General in Council. However, 1t 1S now clear that the Courts will review such decisions (see The Queen v Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170; and F.A.I. Insurances Limited v Winneke (1982) 151 C.L.R. 342; cf. CREEDNZ Inc. v Governor-General [1981] 1N.Z2.L.R. 172). The grounds upon which intervention may take place have been variously stated. See, for example, Toohey per Aickin J. at pp.232-233 and Council of Civil Service Unions v Minister for the Civil Service ("CSSU case") [1985] A.C. 374 per Lord Diplock at p.410. The present case is one raising a question as to denial of natural justice or procedural fairness, which certainly is one of the grounds on which intervention may be appropriate. The Prerogative The question whether the Courts will review a decision made not under a statute but by virtue of the prerogative has a ee ae 6. not so far been decided in this country. In the United Kingdom in the CCSU case (supra) their Lordships took the view that executive actzon was not immune from judicial review merely because it was carried out in pursuance of a power derived from the common law or prerogative rather than a statutory source. A Minister acting under a prerogative power might, depending upon the subject matter, be under the same duty to act fairly as in the case of his acting under a statutory power. The words "depending on its subject matter" were designed to cover matters which were regarded as not justiciable in the Courts. Examples given included national security, the making of treaties, the defence of the country, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers. The iunclusion or exclusion of matters from judicial review according to subject matter may in some cases raise an initial question of some difficulty. In other cases the proper conclusion will be plain enough. Judges are conscious of the responsibilities carried by Ministers, of their accountability to Parliament and ultimately to the electors. They are conscious also that Ministers have the assistance of professional advisers in their departments. But as I have indicated the Courts have not essayed the role of substitute decision-makers. The question is how far the Courts should properly go in reviewing legality and procedural fairness. It oo ere ee Bee mgs ween "ys seat moe woes peer ee gr nee cone pb 7. is the exclusion of some matters from this limited review on the grounds of subject-matter which 1s 1n question. In my opinion, subject to the exclusion of non-justiciable matters, the Courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative. The decision of the House of Lords in the CCSU case (supra) provides persuasive authority for this and it is consistent with what was said in Macrae v Attorney-General for New South Wales, a decision of the New South Wales Court of Appeal (24 June 1987; unreported). The question has been referred to by individual members of the High Court. No case there has required a decision on the point and it has been left open. However, it is fair to say that none of the remarks made by their Honours would support a claim for complete immunity in respect of decisions made under the prerogative (See Toohey's Case (supra) per Mason J. at pp.219-221, per Aickin J. at p.254; A. v Hayden (1984) 156 C.L.R. 532, per Brennan J. at p.590; Coutts v The Commonwealth of Australia (1985) 157 C.L.R. 91, per Wilson J. at pp.99-100; Kioa v West (1985) 159 C.L.R. 550, per Brennan J. at p.611). In this Court since the Administrative Decisions (Judicial Review} Act, 1977 would not apply to a decision made in exercise of the prerogative, such jurisdiction could only be rin hens oer ee spp or ees ne ae % = marx Terns ry we . of ' ema Le 8. exercised under s.39B of the Judiciary Act, 1903. This was of course the provision under which the learned primary Judge acted. Whether the subject-matter of the decision of 16 September, 1986 is justiciable. The decision of Cabinet on the 16 September, 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List is said to be immune from judicial review because it is a decision made under the prerogative being an act done towards a nation or body under an international treaty. The decision taken was not taken under' the treaty-making power of the Commonwealth. Nor do I consider it was a decision taken in accordance with an internationally binding obligation flowing from the Convention. Under the Convention no listing could be made without the "consent" of -the State Party concerned. Nevertheless it was a decision which had to be considered by the Commonwealth because it was a State Party to the Convention; it had to be considered in accordance with the terms of the Convention and notification, if it were to be given, had to accord with the requirements of the Convention. I have some doubt whether by reason only of its relationship to the Convention it was non-justiciable. is ol oi ' 9. However, the whole subject matter of the decision involved complex policy questions relating to the environment, the rights of Aborigines, mining and the impact on Australia's economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the Respondents to this appeal. It appears to me that the subject-matter of the decision in conjunction with its relationship to the terms of the Convention placed the decision beyond review by the Court. Cabinet As I have said Cabinet is not mentioned in the Constitution. It is a body which functions according to convention. The number of departments of State and, in consequence, the number of Ministers may vary from Government to Government. Until 1956 it was the practice for all Members of the Ministry, including Ministers without portfolio, to sit as members of Cabinet. Beginning with the Menzies Ministry sworn in on 11 January 1956 the practice was introduced of a Cabinet comprising some but not all Members of the Ministry (Parliamentary Handbook 17th Ed. 1971, p.512). Since then this inner circle of Ministers has generally been referred to as the Cabinet. When Cabinet meets it is customary for particular members of the outer Ministry to attend when matters concerning or affecting their particular departments are before Cabinet for discussion. Solamemeeren aahied 10. Useful descriptions of the nature and functions of Cabinet are to be found in the F.A.I. Insurances Case (supra) per Murphy J. at pp.373-374 and in Whitlam v Australian Consolidated Press (1985) 60 A.C.T.R. 7 per Blackburn C.J. at pp.14-15. It is to Cabinet that the highest decisions of policy affecting Australia are brought. Often the questions arising involve intense conflict of interests or of opinion in the community. In Cabinet these conflicts have to be resolved. Decisions have to be taken ain the public interest, notwithstanding that the lives, interests and rights of some individual citizens may be adversely affected by the decision. This is not to say that Cabinet should decide matters without considering all relevant material. But there are recognized channels for communicating arguments or submissions. Each Minister has the support and advice of a department of State. Representations may be made to the relevant department or in appropriate cases to the Minister. Every citizen has access to a local Member of Parliament or a Senator in the particular State, who can assist in the advancement of the individual citizen's point of view. The prospect of Cabinet itself, even by delegation, having to accord a hearing to individuals who may be adversely affected by its decisions, is a daunting one. It could bring the proceedings of Cabinet toa grinding halt. hy ve t Seatenete eee ie 11. After a decision of Cabinet is made it may require for its implementation an Act of the Parliament or a decision of a particular Minister or of the Governor-General in Council. There is generally further scope for submissions or representations at some stage even after a Cabinet decision and always scope for political action. In the present case it would, in my view, be inappropriate for this Court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the private interest of the Respondents was thought to have been inadequately considered. The matter appears to my mind to lie in the political arena. The enactment by Parliament of the National Parks and Wildlife Conservation Amendment Act, 1987 should be noted. This Act inserted s.10(1A) in the principal Act providing: "(1A) No operations for the recovery of minerals shall be carried on in Kakadu National Park." The amending Act was assented to on 18 May 1987, that is, after the proceedings before the primary Judge in this case were heard and determined. This serves to highlight the difficulties which lie at the heart of the case put on behalf of the Respondents. =7 rn a rr sant met nr trie - 7 rene eet re ree ewneny: 7. es abe Raa aie Se Oa Dae "2 sre ees Dar Seaman » wee eee peer ie 12. Should the Parliament ever take the step of passing an Act expressly conferring duties or powers and discretions upon Cabinet it would be time to consider whether decisions under such an enactment were open to review by the courts. In the circumstances of the present case, it is my opinion that the decision of 16 September 1986 was not justiciable. As I have said I agree with the orders proposed by Wilcox J. I certify that this and _ the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of His Honour the Chief Judge, Sir Nigel Bowen. ts Ys Associate Dated: 7 Soplonber LAT RE rr ope ee rad 2 ely sprees worn + IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No. N.T. Gl of 1987 wwe www GENERAL DIVISTON ON APPEAL FROM THE JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE BARRY COHEN MINISTER FOR ARTS HERITAGE AND ENVIRONMENT and ORS. Appellants PEKO-WALLSEND LIMITED and ORS. Respondents CORAM: BOWEN C.J., SHEPPARD and WILCOX JJ. DATE : 7 September 1987 REASONS FOR JUDGMENT SHEPPARD J.: In this matter I have had the advantage of reading the judgments to be delivered by Bowen C.J. and Wilcox J. IT agree generally in their reasons and conclusions and with the orders which Wilcox J. proposes. I would add just a few matters for myself. The question whether any decision of Cabinet can ever be the subject of the exercise of the Court's supervisory jurisdiction is, I think, a difficult one. In this case it is not necessary to give an Ne re ee eg © Pree - 2. answer to that absolute question and Ido not propose to endeavour to do so. There are, however, a few remarks about the matter that I would make. It seems unlikely that Parliament will ever specify the Cabinet as the body empowered or required to make any decision or perform any act pursuant toa statute. There is no reason to think that the long-settled practice of designating the Governor-General (that is, the Governor-General in Council, which in turn means the Governor-General acting with the advice of the Federal Executive Council - see s. 63 of the Constitution) or a Minister of the Crown (or other officer of the Commonwealth) as the person by whom a decision is to be made or an act performed will not continue to be followed. But, if a statute were to designate the Cabinet as the body empowered or required to make a decision pursuant to it, the decisions of the High Court in The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170 and E.A.I. Insurances Limited v. Winneke (1982) 151 C.L.R. 342 would suggest that the Court would entertain an application for review of the decision on conventional judicial review grounds provided the application for relief was made by a person with sufficient standing to sue. This case is not based on the exercise by Cabinet of any statutory power. The power here was an exercise of prerogative power. The course of decisions in the United Kingdom has resulted in the conclusion that in some circumstances the courts will review the exercise of prerogative power; Council of Civil Service Unions v. Minister for the Civil Service £19853 A.C. 374. Like the other members of the Court I think that this ought also now be the law in Australia. Such a view is consistent with the — supe ao dre FN a Te cae ncn coe ae oe Tos ; . ° a ara a 3. decision of the Court of Appeal in New South Wales in Macrae v. Attorney-General for New South Wales (24 June 1987, unreported) which was decided after we reserved our decision. But my opinion in this regard does not of itself compel the conclusion that the exercise by Cabinet of prerogative power should in any case attract the Court's jurisdiction. That was not a matter which arose for decision in the Macrae case. The practical difficulties of giving effect to such a course are substantial. The way in which Cabinet operates is described in Winneke by Murphy J. (pp. 373-375) and in Whitlam v. Australian Consolidated Press (1985) 60 A.C.T.R. 7 by Blackburn C.d. (pp. 14-15). I do not repeat what they have said, but their dicta require close attention and understanding, General reference may also be made to a number of texts which have been written about the way in which the Cabinet in the United Kingdom operates. I refer in passing to The British Cabinet by John P. Mackintosh (1962 - Stevens & Sons Limited) and The Cabinet by Patrick Gordon Walker (1970 - Jonathan Cape Limited). If Cabinet decisions, particularly those in the exercise of prerogative power, are to be exposed to judicial review, it seems difficult to provide any sound reason why there should not be available to an applicant for relief all the usual grounds. Principal amongst these are failure to comply with the provisions of the law, in particular failure to take into account any legally relevant consideration and to omit from account any legally irrelevant consideration, failure to accord procedural fairness and failure to act rationally, that is, the making of a ge cee pw ponerse eee Ne CP eee eee ee eens wot? 7 ~ ste ee ye 4. decision which is so unreasonable that no reasonable person could have arrived at it. The way in which Cabinet operates as described in the authorities and texts to which I have referred would pose difficulties for a court in endeavouring to determine whether a decision was arrived at in accordance with law. The decision-making process does not readily lend itself to this type of review or investigation. Furthermore, there seem to me to be public policy reasons which make it quite undesirable that a court should embark on such an exercise. I should emphasize that the question is not whether the Cabinet is bound to act according to law; it is whether its decisions are amenable to the supervisory jurisdiction of the Court. In other words, are its decisions justiciable? In my opinion, the Cabinet being essentially a political organization not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the Court to interfere with what it does. The position in relation to the Governor-General in Council and Ministers of the Crown (or other officers of the Commonwealth) is distinguishable in law because they are entities or persons recognized directly or indirectly in Chapter II of the Constitution and ina variety of statutes. The reasons in the Toohey and Winneke cases have shown both why it is that an Administrator or Governor in Council should be amenable to the pe pec ee con ee eee 7 pee yore ee a 5. Court's jurisdiction and how, in practice, the Court's jurisdiction may be exercised so as not unnecessarily to impede the process of government. For the reasons I have given I incline to the view that the application in this case should fail at the outset because the decision in question was one made by Cabinet. But it is not necessary for me to express that view finally. When one speaks of according natural justice or procedural fairness to a party affected by a decision, one must always have in mind the circumstances of the case at hand. The content of the duty imposed on the decision-maker will vary with the circumstances. One of the circumstances here is that the decision-making body is the Cabinet which is a body of the nature described in the judgments of Murphy J. and Blackburn C.J. in the Winneke and Whitlam cases earlier referred to. That is the starting point. Then one must have regard to the fact that over a period there were made on behalf of the first respondents to Ministers of the Crown and other officials, extensive submissions concerning the need for their mining interests to be preserved in the event that Stage II of the Kakadu National Park were proclaimed or sought to be included upon the World Heritage List. An account of these submissions is to be found in the judgment of Wilcox J. and of the learned primary Judge and I do not wish to go to the detail of them. It is enough to say that amongst the evidence is a number of letters written to the Director, vey te oe a mae 6. Australian National Parks & Wildlife Services, Professor Ovington, the appellant, the Honourable Barry Cohen, the Secretary, Senate Standing Committee on National Resources, and the appellant, Senator the Honourable Gareth Evans. These letters were written over a period commencing in 1979 and extending well into 1986. Additionally oral submissions were made from time to time to Ministers on both sides of politics and to other relevant officials. The letter dated 8 September written by Senator Evans and quoted in the judgment of Wilcox J. shows that he was acutely aware only a week or so before the meeting of Cabinet at which the decision was made of the desirability, at least in his view, of "establishing a multiple land use policy for the Region which balances the interests of the mining industry with those of other land users". Other evidence discloses that Senator Evans' views were known to Mr. Cohen who appears to have been of a different mind. It seems certain that these various matters were discussed in Cabinet and fully considered by it. In the result it was a classic case for the determination of the matter in Cabinet either by consensus or majority and for those opposed to it in Cabinet to abide by the decision and implement it as necessary. That is an essential feature of the way in which Cabinet operates. In those circumstances I think that one should accept the submission of counsel for the appellants that the respondents had an adequate opportunity of putting their case to the relevant ministers and officials, that the purport of that case was before Cabinet and that nothing that the respondents could have said would have added at all to their case. In other words, in the Lor . = ey cans- — — — er 7. circumstances which prevailed, they were given a fair opportunity of being heard and they took advantage of it. It is on this ground that I think the appeal should be allowed. The only other matter upon which I would comment is' the nature of the interests which the respondents have. I respectfully disagree with the learned primary Judge in his view that subsec. 70(6) of the Northern Territory (Self-Government) Act 1978 did not operate to remove from the Northern Territory power to deal with or affect the mining interests which the respondents had. In my opinion the section requires one to conclude that it was the Commonwealth and the Commonwealth alone which had that power. I agree with the submissions of counsel for the appellants that the contrary view pays insufficient attention to the use of the expression "were held" in the subsection. But, as Wilcox J. has said, such a conclusion would not have made any difference to the outcome of the case because the respondents were left with a sufficient interest to provide them with standing to sue. The situation as it was before his Honour has been changed by the National Parks and Wildlife Conservation Amendment Act 1987 which came into force on 18 May 1987. This amended the National Parks and Wildlife Conservation Act 1975 by adding into s. 10a new subsection, subsec. (1A), which provides that no operations for the recovery of minerals shall be carried onin Kakadu National Park. That provision was not in force when his Honour delivered judgment on 22 December 1986. Nevertheless, there would seem to me to be discretionary reasons arising from the oye ~ eee leeemmepne wamwrere <5 8. provisions of subsec. 10(1A) for a Court sitting on an appeal not to grant relief of the kind sought in this case if (which is not the case) it were otherwise minded to think that the appeal should be dismissed. In the result I would allow the appeal. certify that this andthe 7 preceding pages are 4 true tapy of the ~e-.¢95 for ludgmart herein of The Honour:.dle Mr Justice Sheppard, / Ke 4 ' Associate Dated 7 SEPTEMFER 1987 oar annie aeenenee -oe Irene ete ence ee go ete 7 ae mt a be ,ant ota, ena or NORTHERN TERRITORY DISTRICT REGISTRY IN THE FEDERAL COURT OF AUSTRALIA No. NTG G.1 of 1987 CORAM: PLACE: DATE: GENERAL DIVISION BETWEEN: AND: ON APPEAL FROM THE JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA THE HONOURABLE BARRY COHEN MINISTER FOR ARTS HERITAGE AND ENVIRONMENT First Appellant THE HONOURABLE LIONEL FROST BOWEN ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Appellant THE COMMONWEALTH OF AUSTRALIA Third Appellant PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED First Respondents ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent BOWEN CJ, SHEPPARD and WILCOX JJ SYDNEY 7 SEPTEMBER 1987 haan mee REASONS FOR JUDGMENT WILCOX J: This case, which comes to the Court by way of an appeal against the decision of a single Judge of the Court, concerns the decision of the Australian Government, made on 16 September 1986, to seek the inclusion upon the World Heritage List of the area in the Northern Territory of Australia known as Kakadu National Park, Stage II. Amongst the issues raised by the case are two important constitutional questions which have not, apparently, been previously litigated: whether a decision of a Westminster-style Cabinet may be the subject of judicial review and whether there exists any obligation to afford natural justice to persons whose interests are likely to be affected adversely by a proposed Cabinet decision. Background: the Peko-EZ mining interests and the proposed park Peko-Wallsend Limited, Peko Exploration Limited and Peko-Wallsend Operations Limited, the first three of the four companies designated as the first respondents to this appeal, are members of the Peko group of companies. In 1967 the Peko group entered into a joint venture agreement with the fourth first respondent, Electrolytic Zinc Company of Australasia Limited, in respect of the exploration for minerals of a large portion of northern Australia, including the Alligator Rivers region of the Northern Territory. San ce et ee Stee = tere oy mae coon, qrocseea le es Bop poe nen 6 Gee tn een on ve es Over the years various acts have been performed by officers of individual companies on behalf of the joint venture but, for the purposes of this case, nothing turns upon the identity of any particular actor. I shall use the term "Peko-EZ" both to refer collectively to the four respondents and to refer to any one of them. In 1969 Peko-EZ obtained under the Mining Ordinance 1939 (NT) an authority to prospect an area on a property in the Alligator Rivers region known as "Munmarlary". "Munmarlary" was at that time held under a pastoral lease from the Commonwealth. In 1972 the authority to prospect was replaced by two exploration licences, numbered 219 and 220. The exploration licences were issued on 1? April 1972 but were backdated to 1 January 1972. The licences were renewed until the end of 1973. Some exploration was done in the period 1972-1973. The exploration revealed areas of mineralisation, chiefly of uranium. On 4 December 1973, the then Prime Minister, Mr Whitlam, announced that the Commonwealth Government proposed to establish a national park in the Alligator Rivers region, to be known as the Kakadu National Park. On 21 December 1973 Dr Patterson, the Minister for the Northern Territory, wrote to Peko-EZ concerning its then pending applications for further renewal of exploration licences 219 and 220. Dr Patterson said that the applications related to areas that extended "into the area proposed as a national park in the oe ee a -<9-2 Alligator Rivers region". He confirmed that the Government was not opposed to renewal of the licences to 31 December 1974, so far as they related to areas outside the boundary of the proposed park, but that the Government was opposed to renewal of the licences in respect of any area that lay within that boundary. Dr Patterson referred to certain then proposed Northern Territory legislation, which would provide for the creation of national parks and which would permit prospecting to be carried out within those national parks under suitable conditions. Dr Patterson said that, if the renewal of the current exploration licences were confined to areas outside the proposed park boundary, upon commencement of the new legislation fresh licences would be issued for the areas within the park. Peko-EZ accepted this assurance and it amended its application for renewal so as to restrict the exploration licences to areas outside the then proposed park. In October and November 1974, pursuant to applications made in 1973, 14 mineral leases relating to four areas, known as Ranger 2, 4, 44 and 50, were granted under the Mining Ordinance. They were valid for 21 years from that time. Some of the leases related to land within "Munmarlary"; others to land within the adjoining property, to the east, "Mudginberri". The legislation referred to by Dr Patterson was not enacted. Consequently, Peko-E2Z made applications for the grant of various mineral leases within the original areas of exploration licences 219 and 220. The mining warden yt -3 2. COD pee mergers are o Parad ee es eee ae ace recommended that leases be granted but grants were not in fact made. The reason, apparently, was that the Commonwealth Government gave to the Administrator of the Northern Territory an instruction, whose terms were publicly announced on 27 August 1977, that no further mineral leases should be granted in the Alligator Rivers region until the Government had determined its policy regarding further mineral exploration in the region. In March 1977 the Government had received the Second Report of the Commission of Inquiry into the proposed mining of uranium deposits in the area; the "Ranger Inquiry". In that report the Commission had recommended the creation of a national park extending over a much greater area than that announced in 1973, and including the whole of both "Munmarlary" and "Mudginberri". This recommendation was consistent with proposals, referred to by the Commission, going back as far as 1965. In making 1ts recommendation, the Commission had 1n mind the possibility that claims to some or all of this land might be made under the Aboriginal Land Rights (Northern Territory) Act 1976 but the Commission envisaged that any land granted pursuant to that Act would then be leased by the relevant Aboriginal interests to the Director of National Parks and Wildlife. The Commission made what it called "a strong recommendation" that "development of more than the Jabiru and Jabiluka deposits not at present be contemplated". The effect of that recommendation, if adopted, would be to exclude the development of any commercial uranium deposits which might lie within the areas the subject of Peko-EZ's mineral leases and mineral lease applications. ee wa eenenr y oy 3° more sree tte o4 ee ~ayed we ow eee te Exploration licences 219 and 220 expired on 31 December 1976. Thereafter the relevant interests of Peko-EZ were as the holder of mineral leases in the four areas mentioned ahove and as an applicant for the other mineral leases. Two news releases, each of February 1978, appear in the evidence. The first, dated 5 February, was 1ssued by the Minister for Environment, Housing and Community Development, Mr Groom. It referred to decisions by the Government that the whole of the area recommended by the Ranger Inquiry should become a national park and that Stage I of the park should be proclaimed as soon as the necessary legislation had been enacted. The release stated that Stage II of the park would be proclaimed "as soon as the mineral resources of the area have been reasonably identified" and that "any new mining development would be subject to the normal environmental controls exercised through the Environment Protection (Impact of Proposals) Act". The second release was issued four days later by Mr Fraser, the Prime Minister. It was issued "to assure the Aboriginal people in the Alligator Rivers Region that until their claims over land in Stage II of the Region have been determined (the Government) will not permit granting of mining interests over that land without their prior consultation and agreement". The Prime Minister went on: re nas fan, ete trys ae ube! Sp rer > « s aenaieaiee aaa ae eat seemmatiee oo. rr rt eer nay vie becca ad at "The control procedures for Stage II will be finalised as soon as possible and before there 1s any minerals exploration in the area. The Government is also expediting the purchase of the Mudginberri and Munmarlary pastoral leases in Stage II in order to create an opportunity for Aboriginal land claims to be made and determined." On 24 April 1978 the Prime Minister wrote a letter to Peko~EZ referring to his news release of 9 February 1978 and going on: "The Government introduced amending legislation into the Parliament on 10 April 1978 which will provide a legislative basis for exploration, development and mining activities in the Stage II area, while at the same time providing for adequate controls to protect the environment and the interests of the Aboriginal people. A copy of the legislation and the Second reading speech of the Minister for Environment, Housing and Community Development are attached. No part of the Stage II area will be incorporated into the Kakadu National Park until the mineral potential of that area has been assessed. The question of excision of any potential mining areas from that area to be later declared as part of the Kakadu National Park 1s not so urgent as to require an early decision, but will be considered at such time as the mineral resources of the area have been assessed and declaration as part of the Kakadu National Park 1S imminent." The legislation referred to by Mr Fraser included amendments to the National Parks and Wildlife Conservation Act 1975. Those amendments included provision for conservation zones, which were intended to give interim protection to wildlife within, and to the natural features of, areas within the Alligator Rivers region pending declaration of those areas as park or reserve. Section 8B was added to the Act at that time. As 1t assumes some importance in subsequent events, I set out the relevant parts of that section: fell ate Cad ms vw a ent amend ee ae ee eee act sore ae cold > ote een et re es ee "8B. (1) Where any land is within a park, reserve or conservation zone-- (a) subject to paragraph (b), the prescribed provisions of this Act and of the - regulations and, in the case of a park or ' reserve, the provisions of the plan of management do not affect-- ' | (i) any interest in respect of that land | or in respect of any minerals on, in 1 or beneath that land held ; immediately before that land was ! within the park, reserve or [ conservation zone by any person ' other than the Commonwealth or the t Director; or r (ii) the application of any law of a State or Territory in relation to such an interest; and =a (b) notwithstanding anything to the contrary contained in any law of the Commonwealth or of a State or Territory, an interest referred to in sub-paragraph (a)(i) (not being an interest in respect of minerals beneath the land concerned) shall not he renewed, and the term of such an interest shall not be extended, except with the consent in writing of the Minister and subject to such conditions as the Minister determines. SI rr (2) A person adversely affected by the refusal of the Minister to give consent, or by the imposition of conditions, under paragraph (1)(b) is entitled to be paid reasonable compensation by the Commonwealth. (a) ... t i (3) In this section-- [ | (b) ... (c) a reference to an interest shall be read ! as including a reference to the exercise of a right arising out of an interest; and ros A, (d) a reference to minerals beneath land that is within a park, reserve or conservation zone shall be read as a reference to minerals situated below the depth specified in relation to that land in pursuance of sub-section 7(6) or 8A(4), whichever is applicable." > oe Sections 7(6) and 8A(4) provided for the specification, ina proclamation declaring an area as a park, reserve or conservation zone, inter alia, of the sub-soil depth to which the declaration extends. The Self-Government legislation Except for ss.l, 2, and 70, which took effect upon the date of assent, 22 June 1978, the Northern Territory (Self-Government) Act 1978 came into force on 1 July 1978. Subject to certain exceptions, s.69 of that Act vested in the Northern Territory of Australia -~- that is, the body politic established under that name by s.5 of that Act -- as at the commencement of the Act all interests of the Commonwealth in land in the Territory. However, s.70 empowered the Governor-General, upon the recommendation of the Minister, 'to authorize the acquisition from the Territory by the Commonwealth of an interest vested in the Territory under s.69 and to declare that the interest is acquired for a public purpose approved by the Governor-General. Any such acquisition had to be effected by publication of a notice in the "Commonwealth of Australia Gazette" not later than one year after the commencement of the Act. Section 70(6) provided that, upon the acquisition of an interest by the Commonwealth under s.70, "all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory". mee pee ee 10. On 23 June 1978, under the Lands Acquisition Act 1955, the Commonwealth compulsorily acquired the lessee's interests in the "Munmarlary" and "Mudginberri" leases, thereby extinguishing the leases by merger with the fee simple estate. Six days later the Minister published in the Gazette a notice authorizing the acquisition of "Munmarlary" and "Mudginberri" under s.70 of the Northern Territory (Self-Government) Act for the public purpose of "national park". The result was that, upon the commencement of s.69 of the Northern Territory (Self-Government) Act on 1 July 1978, the fee simple to "Munmarlary" and "Mudginberri" vested in the Northern Territory pursuant to s.69 but, by force of s.70, immediately re~vested in the Commonwealth Government. It re-vested free of the former pastoral leases but subject to the outstanding mineral interests. The period 1978-1983 In March 1978 the Northern Land Council made application under the Aboriginal Land Rights (Northern Territory) Act for the grant of certain areas of vacant Crown land in the Alligator Rivers region. On 17 July 1978, following the acquisition by the Commonwealth of the "Munmarlary" and "Mudginberri" leases, the claim was expanded so as to include land within those two properties. The Aboriginal Land Rights Commissioner (Toohey J) reported on the STG Tree ee mae ery et ra moat weer ttre ne ll. claim in July 1981, recommending a grant of a portion of the area claimed. The then Minister for Aboriginal Affairs, Senator Baume, decided in 1982 partly to implement that recommendation but he deferred a decision regarding the areas over which Peko-EZ had mineral leases or had made mineral lease applications. In March 1983, after a change of government, the new Minister of Aboriginal Affairs, Mr Holding, decided to grant the outstanding areas; but this decision was held to he legally invalid: see Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 5 FCR 532 and, upon appeal to the High Court of Australia, 66 ALR 299. After the decision in the High Court, the matter was re-considered by Mr Holding who, on 18 November 1986, again decided to grant the balance of the land recommended by Toohey J. Stage I of Kakadu National Park was proclaimed on 5 April 1979. It included some of "Mudginberri" but no part of "Munmarlary". In April 1981 a Plan of Management for Stage I came into effect. The Plan provided that operations for the recovery of minerals might be carried on in the Park during the period of the Plan, but only where those operations had been approved by the Governor-General. However, according to a letter of 4 June 1981 to Peko-EZ from Senator Carrick, Minister for National Development and Energy, it was the policy of the then Government "that exploration in Stage I should not proceed for the time being". The Minister went on to speak of "a tightly controlled exploration program under Commonwealth supervision" in Stage II, but this was to be subject to meeting Aboriginal interests in the area. po ¢ SO pa ee td eee L wre ar a eg ee ' 12. In fact no exploration program was arranged before the change of government in March 1983. In September 1983 the new Minister for Resources and Energy, Senator Walsh, acknowledged representations made by Peko~EZ regarding exploration in Stage II but said that the future of this area "involves many complex options covering mining exploration and development, environment and the Government's responsibilities towards Aboriginals". The Minister said that these issues had yet to be examined by the Government. In 1980 the Northern Territory Parliament enacted legislation -- the Mining Act 1980 (NT) -- to replace the 1939 Ordinance under which the interests held by Peko-EZ had arisen. Part V of the new Act provided for the grant of exploration retention leases to persons, amongst others, who had held exploration licences under the Ordinance and who had applied, before the commencement of the new Act, for mineral leases. Taking the view that these provisions applied to uits lease applications concerning areas within "Munmarlary" -- a proposition which is disputed by the present appellants -- Peko-EZ applied in August 1982 to the Northern Territory Government for the issue to it of exploration retention leases. The Northern Territory Department of Mines and Energy accepted this application and indicated that two exploration retention leases would be issued to cover the various mineral lease applications. a" 13. The World Heritage Convention In October and November 1972 the General Conference of the United Nations Educational, Scientific and Cultural Organization ("UNESCO") established a Convention for the Protection of the World Cultural and National Heritage. Australia ratified the Convention in August 1974. By art.1 of the Convention the term "Cultural heritage" is defined to mean: "monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view." "Natural heritage" is defined by art.2 as referring to: "natural features consisting of physical and~ biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." = poe ae ae 5 14. Article 3 provides that it is for each State Party "to identify and delineate the different properties situated on its territory" which fall within these definitions. Part II of the Convention casts upon each State Party to the Convention obligations applicable to all properties of the cultural and natural heritage within 1ts territory; whether or not those properties are listed under Pt.III. By art.4 each State Party "recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage ... situated on its territory, belongs primarily to that State". Each State Party covenants to "do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation ... which it may be able to obtain". Article 5 specifies means to be taken by States Parties in relation to properties within their own territories. Articles 6 and 7 provide for international assistance to such States Parties. Part III of the Convention provides for the establishment within UNESCO of a committee called "the World Heritage Committee". The Committee is an intergovernmental committee, 1n the sense that it is composed of a specified number of States Parties, to be elected by the member States in general assembly. But the elected governments are required to choose as their representatives on the Committee "persons qualified in the field of the cultural or natural heritage": see art.9.3. aa So pete we re ff t 15. Article 11 deals with the World Heritage List. In view of the central importance of that List to this case, 1t 1s desirable to set out the relevant portions of the article: "1. Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion 1n the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance. 2. On the basis of the inventories submitted by States in accordance with paragraph 1, the Committee shall establish, keep up to date and publish, under the title of 'World Heritage List', a list of properties forming part of the cultural heritage and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years. 3. The inclusion of a property in the World Heritage List requires the consent of the State concerned. The inclusion of a property situated ina territory, sovereignty or jurisdiction over which 1s claimed by more than one State shall in no way prejudice the rights of the parties to the dispute. 4. The Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of 'List of World Heritage in Danger', a list of the property appearing 1n the World Heritage list for the conservation of which major operations are necessary and for which assistance has been requested under this Convention. ... 5. The Committee shall define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included in either of the lists mentioned in paragraphs 2 and 4 of this article. woo -ayvorm ~~ eee ae woe : ~ ay tr ri cnt ete ee re er ee ne 16. As is made clear by art.12, the fact that a particular property 1s not included on the World Heritage List does not derogate from the responsibilities undertaken in relation to it under Part II -- and especially under arts.4 and 5 -- of the Convention. Article 12 provides that the omission of a property from either of the lists referred to in art.11 "shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists", Article 13 provides for international assistance in relation to listed properties. The Convention goes on to provide for administrative and scientific support for the World Heritage Committee (art.14) and, in Part IV, for the establishment and operation of an international fund, called "the World Heritage Fund". Part V deals with international assistance and Part VI with educational programs. In 1983 the Commonwealth Parliament enacted legislation, the World Heritage Properties Conservation Act 1983, to enable the Commonwealth Government to protect Australian properties which had been, or might in the future be, identified as items of the "cultural heritage" or "natural heritage", within the meaning of those terms in the Convention. A key definition in the World Heritage Properties Conservation Act 1s that of "identified property", a term which s.3(2) requires to be read as a reference to: "(a) property forming part of the cultural heritage or natural heritage, heing property that-- " --- yt ery Spe tere en 17. (i) the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as Sultable for iunclusion in the World Heritage List provided for in Paragraph 2 of that Article; or (ii) has been declared by the regulations to form part of the cultural heritage or natural heritage; or {b) any part of property referred to in paragraph (a)." It is important to observe that identified properties are not confined to those already included upon the World Heritage List, or even nominated by Australia for inclusion on that List. Identification by regulation 1s sufficient; this identification (under art.3 of the Convention) having the effect of acknowledging the application to that property of Australia's obligations under arts.4 and 5 of the Convention. In relation to the making of protective proclamations, the Act distinguishes between properties within States and properties which are not within a State. As the Act does not extend the word "State" to include the Northern Territory, the latter provisions only need to be mentioned for present purposes. Section 6(1) provides that a proclamation may be made under sub-s.(3) "in relation to identified property that is not within a State". Sub-section (3) empowers the Governor-General, where he is satisfied that any property in respect of which a proclamation may be made -- that is any wos a8 i ~~ 18. "identified property" -- "is being or is likely to be damaged or destroyed", by proclamation to declare the property to be one to which s.9 of the Act applies. Damage or destruction of a property includes a reference to damage to, or destruction of, any part of the property. Section 9(1) provides that, except with the written consent of the Minister, it is unlawful to carry out certain specified acts in connection with a property. Those acts include mining operations; even exploratory drilling. Section 9(2) makes unlawful, without consent, any other act, not specified by sub-s.(1), "that damages or destroys any property to which this section applies". In the giving of a consent under s.9, the Minister may have regard "only to the protection, conservation and presentation, within the meaning of the Convention, of the property": see s.13(1). Two other pairs of sections may be available, in particular cases, for the protection of an identified property: ss.7 and 10, for cases where the threat of damage is from the activity of a corporation which is a foreign corporation, a trading corporation or a corporation incorporated in a Territory; and ss.8 and 11, where there is a threat to an Aboriginal site -- as defined in s.8(2) -~- that 1s, or is situated within, an identified property. Section 14 gives to the High Court of Australia and to this Court jurisdiction to grant an injunction restraining a person from doing an act that is unlawful by virtue of s.9, s.10 or s.ll. [oak hiaiaaei lin tel ak ah stated A > —- 19. Section 17 of the Act provides for compensation to be paid in cases where the operation of the Act has resulted in an "acquisition of property" -- within the meaning of s.51(xxx1) of the Constutition -- from a person. The decision to seek the listing of Stage II The area proclaimed as Kakadu National Park in April 1979, often referred to as "Stage I", was, upon the application of the Australian Government, inscribed on the World Heritage List at the meeting of the World Heritage Committee held during the period 26-30 October 1981. In deciding to include the area on the List, the Committee "noted the Australian Government intended to proclaim additional areas in the Alligator Rivers Region as part of Kakadu National Park and recommended that such areas be included in the site inscribed on the World Heritage List and that in the Region the environmental protection measures specified in the relevant legislation continue to be enforced." On 19 November 1983 Mr Barry Cohen, then Minister for Home Affairs and Environment and the first appellant herein, unveiled a plaque at the Kakadu National Park headguarters near Jabiru to commemorate the inscription of the Park upon the World Heritage List. In doing so, Mr Cohen referred to the comment made by the World Heritage Committee regarding additional areas and said: Wp tenn eo ees > wee + we me ee 20. "Consultations are expected to start soon with the relevant Federal and Northern Territory authorities with the view to proposing the inclusion of Stage Two in the World Heritage List. Stage Two includes wetlands of major international significance, mangroves that are of great scientific interest, extensive archaelogical sites and places of considerable recreational importance." Stage II was proclaimed as a national park under the National Parks and Wildlife Conservation Act on 28 February 1984, to a depth of 1000 metres below the surface of the land. In announcing the proclamation, Mr Cohen stated that the proclamation would enable Stage II to be considered by the Government for nomination for the World Heritage List as an extension to Kakadu National Park, as already listed. During the period immediately following the proclamation of Stage II, a draft Plan of Management was being prepared. One of the issues which needed to be addressed by the Plan of Management was that of mining activity within the Park. On 13 July 1984, shortly after the publication of a notice that the Director of National Parks and Wildlife intended to prepare a Plan of Management for Stage II, Peko-EZ lodged a lengthy submission in favour of mining. The importance of the Plan of Management for Stage II was highlighted for Peko-EZ during 1985. On 6 September 1985 Peko-EZ wrote to the Department of Local Government and Administrative Services seeking the grant under s.5l(1) of the Lands Acquisitions Act of a licence to explore for minerals in certain defined areas within Stage II. Section 51(1) empowers oe pee re eee ee eee aa UI rt mr aren ea vt ste = noe ee ee ee Ye sae me er 4, . poetry se - oo re ere ee ve 21. the Governor-General to "authorise the grant of a lease or licence to a person to mine for metals or minerals on land, situate in a State, which is vested 1n the Commonwealth". By virtue of s.5AA of the Lands Acquisition Act a reference in the Act to a State includes a reference to the Northern Territory. Mrs Penny Morris, the Director of Property within the Department of Local Government and Administrative Services, replied on 14 November 1985. She referred to legal advice that the Lands Acquisition Act could not be applied to land in a national park, which is vested in the Director of National Parks and Wildlife. She referred also to the terms of s.10(2) of the National Parks and Wildlife Conservation Act, which prohibits operations for the recovery of minerals in a national park other than operations that are carried on "with the approval of the Governor-General, in accordance with the Plan of Management relating to the park". The letter concluded: "The National Parks and Wildlife Service has advised that the first Plan of Management for Kakadu National Park Stage Two is still in preparation; therefore mining operations in the park cannnot be authorised at this stage. However, I have forwarded a copy of your application and this letter to the Director of the National Parks and Wildlife Service so that he may give due consideration to your request in preparing the Plan of Management and advise you of the outcome of your application at the appropriate time." Peko-EZ took up this reply with the Minister for Local Government and Administrative Services, referring back to Dr Patterson's letter of 21 December 1973, but the Minister confirmed the advice given by the Director of Property. wre Leos on raleeteona nea dole iediinenamaiie iiioneesitesm ia ee oe ee > re 22. Early in 1986 Peko-EZ became aware of the terms of a discussion paper upon the Plan of Management dated 21 February 1986 and 1ssued by the National Parks and Wildlife Service for consultative purposes. The discussion paper referred to ss.8B and 10(2) of the National Parks and Wildlife Conservation Act. The discussion paper proposed that, subject to s.8B of the Act, no operations for the recovery of minerals be carried out in the Park. As Peko-EZ promptly appreciated, this proposal would have had the effect of denying exploration by it of the areas in relation to which it had previously sought mineral leases. Section 8B protected only existing interests and Peko-EZ did not yet hold leases over the areas of major commercial significance. Peko-EZ, by letter dated 15 May 1986, raised its concern with Senator Evans, Minister for Resources and Energy. The letter commented that "there is essentially no provision made for mining operations" and contrasted this position with assurances given by Ministers of previous Governments in earlier years. Peko-EZ requested Senator Evans "to intercede in the present process of formulation of the Plan of Management for Kakadu, to ensure that the national interest is served by its contents". The draft Plan of Management was published for public comment on 6 June 1986. Consistently with the earlier discussion paper, the draft Plan merely recognized s.8B interests. Peko-EZ put in a formal submission but the joint mn ree wre wre nee pte wer ant eee ae 23. venture also wrote directly both to Senator Evans and to Mr Cohen drawing attention to what 1t called "a most serious aspect of the draft Plan", namely the limitation to s.8B interests. The letter argued the case for permitting mining in the Park with particular reference to the economic benefits of mining. Reference was made to an inquiry then being conducted by the Senate Standing Committee on National Resources, to which Peko-EZ had made a detailed submission. Senator Evans responded to this letter on 8 September 1986 saying: "T refer to your letter of 15 May 1986 and enclosures concerning mineral activity in the Kakadu Region. I am conscious of the concern in the mining industry over proposals for future land use in the Kakadu Region including the new Plan of Management for Kakadu National Park. My Department has provided comments on the proposed Plan to the Director, National Parks and Wildlife which seek inclusion in the Plan of provisions for operations for the recovery of minerals similar to those in the first Plan. Such an approach is necessary to give - effect to the Plan's key management objective of developing an inventory of all renewable and non renewable resources in the Park. You can be assured that I am following this issue carefully with the long term objective of establishing a multiple land use policy for the Region which balances the interests of the mining industry with those of other land users." The period for submissions to the Director of National Parks and Wildlife relating to the Plan of Management closed on 14 July 1986. As might have been expected, conflicting submissions were received regarding the question Director wrote to the Plan 24. of mining in the park. On 14 August 1986 the of National Parks and Wildlife, Professor Ovington, Mr Cohen seeking his guidance as to the content of of Management upon this question. On 1 September 1986 the Prime Minister, Mr Hawke, asked Mr Cohen to examine the implications of not including provision for mining in the Plan of Management and to discuss this with Senator Evans. Mr Cohen was also asked to discuss with Mr Brown, the Minister for Sport, Recreation and Tourism, the implications of the draft Plan for tourist development. Shortly afterwards Mr Cohen received a letter from Senator Evans in which he argued that provision should be made in the Plan of Management for Mining and exploration over the whole of Kakadu National Park. On 12 September Mr Cohen wrote to the Prime Minister commenting on Senator Evans' submission and setting out reasons why he believed that the Plan of Management, as it related to mining, should follow the form of the draft document which had been released for public comment. The letter concluded: "There are three major issues for decision by the Government in relation to the Kakadu National Park: the issue of mining and its relationship to the Plan of Management; World Heritage listing for Stage 2; and future arrangements for Gimbat and Goodparla (the proposed Stage 3). Senator Evans and I lodged some time ago a Submission on Gimbat and Goodparla. The Submission states our divergent views and proposes alternate options. I believe that the other two issues should be considered by Cabinet at the same time it considers Gimbat and Goodparla, and I am arranging for the immediate preparation of draft Cabinet Submissions on those two issues with the aim of lodging them as quickly as possible. wee enn eee eee Sela cms coerce ar a ea 25. I see little to be gained by any further round of consultations between officials or Ministers and would like your concurrence for early listing of the three issues for consideration by Cabinet. The matters I have raised are relevant also to a matter covered in Memorandum 4332 (Review of the Effect of Domestic Policies on Trade Competitiveness) which is to be considered by Cabinet on Monday, 15 September. I would be glad if my views, as expressed in this letter, could be taken into account in those discussions. The sensible approach now would be not to take decisions on matters relating to mining in Kakadu National Park until Cabinet has considered all the issues involved. I am sending a copy of this letter to Senator Evans and Mr Brown." Cabinet discussed Kakadu National Park on 15 and 16 September 1986. At the conclusion of the meeting a joint statement was issued by Senator Evans and Mr Cohen in which they announced, amongst other things, that the Government had agreed "to endorse a revised Plan of Management for the Kakadu National Park which would exclude the possibility of any new mining activity taking place within the Park boundaries". The joint statement said that the Government had agreed "that immediate steps should be taken to nominate Stage II of the Park for inclusion on the World Heritage List". In connection with the Plan of Management the Ministers said: "The revised terms of the Plan of Management for Stages I and II to be submitted to Parliament w1ll be along the lines of the Draft Plan publicly circulated by the Director of the Australian National Parks and Wildlife Service. The provisions in question differ from the previous Plan, now expired, which enabled exploration and mining to take place outside pre-existing leases with the approval of the Governor-General." mae eet woes oe er ITY eT + LP pe ee 26. The legal proceedings The Cabinet decisions referred to in the joint statement were notified to Professor Ovington, who arranged the transmission to UNESCO of the Australian nomination of Stage II for inclusion on the World Heritage List. That nomination was to have been considered by the World Heritage Committee in its annual session to be held in the week commencing 24 November 1986. However, on 19 November 1986, the learned primary judge, on the application of the four first respondents to this appeal, issued an order, addressed to Mr Cohen as first respondent and to the second appellant, Mr Lionel Bowen, Attorney~General of the Commonwealth as a second respondent representing the Commonwealth of Australia, requiring the two Ministers to show cause why: "1. The first respondent should not be restrained from taking any further steps to prosecute, support, promote or otherwise further the nomination of Stage II of the Kakadu National Park for inclusion on the World Heritage List. 2. The first respondent should not take all steps reasonably open and available to him to cause the said nomination to be withdrawn or deferred. 3. The first respondent should not fully consult and hear and properly consider the submissions of the prosecutors prior to:- (a) taking any further step to promote, support or further the nomination of Stage II of the Kakadu National Park for inclusion on the World Heritage List, (b) taking any step to nominate Stage IT of the Kakadu National Part (sic) for inclusion in the World Heritage List. hero 27. 4. The Governor-General of the Commonwealth of Australia ("the Governor-General") should not be restrained from making any Proclamation in respect of Stage ITI of the Kakadu National Park pursuant to s6(3) or s7 of the World Heritage Properties Conservation Act 1983 ('the said Act'). 5. The Governor-General should not be restrained from taking any step to make a Proclamation pursuant to s6(3) or s7 of the said Act without having first fully consulted the prosecutors and having first fully listened to and considered their submissions about the making of such Proclamations" Peko-EZ moved for interlocutory relief. The Commonwealth of Australia was added as the third respondent to the proceedings. On 24 November the primary judge reached the conclusions that there was a serious question to be tried and that the balance of convenience favoured some intervention by the Court. But he did not make interlocutory orders in the form sought by the applicants. Rather, he ordered that the respondents inform the World Heritage Committee, at the meeting then commencing, as to the nature of the proceedings before the Court and their likely future course and that "with a view to preserving the status quo until judgment in the proceedings in respect only of the area described in the schedule (and not otherwise), the Federal Court of Australia has directed the respondents to request the World Heritage Committee to defer, until further notice, its consideration of so much of the application for the listing as includes the area described in the schedule to the orders". The schedule referred to the areas of land over which Peko-EZ held mineral leases or had pending mineral lease applications. a a ee - aeee ™, 28. An appeal to the Full Court against these orders having failed -~- and special leave to appeal having been refused by the High Court of Australia, see (1986) 61 ALJR 57 -- the Australian Government asked the World Heritage Committee to defer until its next meeting, in late 1987, the whole of the application in respect of Stage II. The Committee acceded to this request. The principal proceedings came on for hearing in the week commencing 8 December 1986. The applicants contended that, in making the decision to nominate Stage II, Cabinet was bound by the principles of natural justice to afford to them an opportunity to be heard and that it had failed to do so. It followed, so they said, that the decision was invalid. _ The respondents denied both the claim that the principles of natural justice applied and the allegation that Peko-EZ had not been heard. Further, they submitted that these questions did not arise because the decision was immune from judicial review. On 22 December 1986 his Honour delivered judgment, upholding the claim made by Peko-EZ. His Honour ordered that it be declared "that the decision of the Executive made on 16 September 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List is void". ian Beaneneneenrdenar rte a ene eee 29. Technically, of course, the Commonwealth Executive consists of the Governor-General in Council: see ss.6] and 62 of the Constitution. So far as the evidence shows, the question of inclusion of Stage II of Kakadu National Park upon the World Heritage List was never considered by the Executive Council. However, it is agreed between the parties that the reference in the declaration to the decision of the "Executive" is intended to be a reference to the Cabinet decision of that day. So understood, the declaration deals directly with the issue between the parties: the validity of the Cabinet decision. The respondents at first instance appealed against the order made by the primary judge. Whilst the appeal was pending, the Attorney-General for the Northern Territory sought and obtained leave to be added as a second respondent to the appeal. He has appeared by counsel before us to support certain aspects of the case put by the first respondents. The nature of the Peko-EZ interest The parties devoted considerable attention, both at the trial and before us, to the question whether the provisions of the 1980 Northern Territory mining legislation had any application to the interests held by Peko-E2Z. Apparently they see this question as being important in determining whether Peko-EZ was a person to whom an obligation of natural justice lay. I doubt whether it has any such ay oun es eo, etree en wer gyrnre sree oe os a 30. significance. Even on the Commonwealth view, at the date of the Cabinet decision Peko-EZ held mineral leases, granted under the 1939 Ordinance, over four areas within "Munmarlary" and "Mudginberri"" and it had extant applications for the grant of other mineral leases. It may be that the areas subject to the existing mineral leases had little commercial potential but, if it is correct to say that the obligations of natural justice lay towards any holders of mineral leases within the area under consideration, Peko-EZ fell within the relevant class of persons. That situation would not be affected by an answer to the question whether the mineral lease applications were properly to be regarded as exploration retention leases. However, as the matter has been fully argued, and in case the view just expressed should be thought to be erroneous, I indicate my opinion that the 1980 amendments had no application to the subject interests. Counsel for Peko-EZ point out that the Northern Territory (Self-Government) Act gives to the Northern Territory legislature a general power, subject to the terms of that Act, "to make laws for the peace, order and good government of the Territory": see s.6 of the Act. That grant was not so framed as to exclude power to legislate in respect of "prescribed substances" under the Atomic Energy Act 1953, or in respect of minerals on Commonwealth land. Counsel also observe, correctly, that the Mining Act 1980 is couched in terms which are sufficiently wide to include mining for such substances and mining on Commonwealth land. The Administrator eye re es we ee eee <r, oe ene yen sy oo a seers ct eee re ~— pe snap ores 31. of the Northern Territory -- that is, the Crown in right of the Territory -- assented to that Act. But it is a fundamental principle that the Crown in right of a State or of the Northern Territory cannot bind the Crown in right of the Commonwealth. As Fullagar J said in The Commonwealth of Australia v Bogle (1953) 89 CLR 229 at pp.259-260: "The Commonwealth -- or the Crown in right of the Commonwealth, or whatever you choose to call it -- is, to all intents and purposes, a juristic person, but 1t 1s not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament. If, for instance, the Commonwealth Parliament had never enacted s.56 of the Judiciary Act 1903-1950, it is surely unthinkable that the Victorian Parliament could have made a law rendering the Commonwealth liable for torts committed in Victorla. The Commonwealth may, of course, become affected by State laws. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vict.) ... But I should think it impossible to hold that the Parliament of Victoria could lawfully prescribe the uses which might be made by the Commonwealth of 1ts own property, the terms upon which that property might be let to tenants, or the terms upon which the Commonwealth might provide accommodation for immigrants introduced into Australia." This principle 1s equally applicable to the Northern Territory. In The Queen v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at p.418 Brennan J said: "Tt is beyond the capacity of a law of the Northern Territory or of the exercise of any power which such a law confers to affect the operation of a law of the Commonwealth or to destroy or to detract from a right thereby conferred unless a law of the Commonwealth so provides, expressly or by implication." 32. In the present case the Commonwealth Parliament decreed, by s.70(6) of the Northern Territory (Self-Government) Act, that, upon the acquisition of an interest by the Commonwealth under the section, "all interests that were held from the Territory immediately before the acquisition" were to be "held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory". The subject mining interests of Peko-EZ, although originally vested in it by the Commonwealth pursuant to the Mining Ordinance 1939, were held from the Territory —- as the new and momentary owner of the fee simple estate -- immediately before the acquisition. After the acquisition those interests were held from the Commonwealth on the same terms and conditions as those on which they had previously been held. Because the interests were created under the Ordinance, their terms and effect had to be sought in the Ordinance. But this does not mean that the Territory legislature was free to substitute new terms and a new effect. It was, of course, open to the Commonwealth to vary the terms and conditions after the date of acquisition; subject to the necessity to pay just compensation if the variation took the form of an acquisition of an interest held by another: see Constitution s.51(xxxi). The argument for Peko-EZ involves the proposition that the Northern Territory legislature has power to enlarge an interest held at acquisition date which is adverse to the Commonwealth. Upon that argument the Northern Territory could, by legislation, enlarge interests adverse to the t ' ! a AA ore rower ea eer ap 33. Commonwealth to a point where the Commonwealth interest is, practically speaking, extinguished: thus defeating the purpose for which the Commonwealth acquired the interest. [In my opinion it was not open to the Territory legislature to interfere with the operation of s.70(6) by varying the terms and conditions upon which Peko-EZ's interests were held. Section 6 of the Northern Territory (Self-Government) Act does not assist the respondents' argument. The grant of power contained in that section 1s expressly made subject to other provisions of the Act. Section 70(6) operates as a relevant qualification upon the application of that general power to lands acquired under that section. The general question of reviewability The appellants contend that the decision under attack is immune from judicial review; that is, that the legal validity of that decision is not justiciable in a court. They state two reasons, contending that either reason individually is enough; but alternatively relying on the two reasons in combination. Those reasons are, first, the identity of the decision-maker and, secondly, the nature of the decision; namely a decision as to the exercise of the prerogative power of the Crown in connection with an international treaty. As to this last matter, and notwithstanding some argument to the contrary, it is clear that the power which the Cabinet purported to exercise on 16 September 1986 is a prerogative power. Although the a v Le we aes — 34. Constitution makes provision for an Executive Council to advise the Governor-General in the exercise of the federal executive power (ss.61-63) and requires that Ministers be members of the Executive Council (s.64), 1t makes no reference to a Cabinet. Nor does any statute confer upon the Cabinet any relevant power. Indeed there is no statutory provision at all relating to the nomination by Australia of properties for inclusion upon the World Heritage List. The World Heritage Properties Conservation Act does not deal with this matter. Insofar as its operation depends upon properties being listed, that Act assumes that the property has been, or will be, listed dehors the Act. And, of course, as a matter of history, several Australian properties were nominated, and listed, before the enactment of this legislation; including the Western Tasmania Wilderness which was the subject of Commonwealth of Australia v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case). Halsbury, "Laws of England" (4th ed) vol.8, para.1136 points out, in relation to the United Kingdom, that the Cabinet is recognized only indirectly by statute law. Halsbury states that "the rules which regulate its formation, and its relations, when formed, with the Crown, Parliament and the Prime Minister, depend upon the conventional usages which have sprung into existence since 1688, and which have now for the most part become settled constitutional principles, subject to the modifications rendered necessary by time and circumstances or by actual changes in existing executive or legislative institutions". The same may be said of Cabinets aye sa Ye vor sya pe Spree regener cece are tons 35. in Australia, including the federal Cabinet. In Whitlam v Australian Consolidated Press (1985) 60 ACTR 7 at pp.14-15 Blackburn CJ spoke thus of the federal Cabinet: "Cabinet is a group of persons who have in common certain political aims. It has to make decisions which must command support in Parliament and, it 1s hoped, will command substantial support in the electorate. The common political aims are necessarily broad; in their particular applications they may be the subject of disagreement among members of Cabinet. Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the Government. Discussion and persuasion may abolish the disagreement, or they may merely reduce 1t, or leave it unaltered. If any disagreement remains there must nevertheless be a decision, but it will be one which some members like less than others. Both practical politics, and good Government, regulre that those who like it less must still publicly support it. If such support is too great a strain on a Minister's conscience, he can resign. So the price of the acceptance of Cabinet office 1s the assumption of the liability to support Cabinet decisions. The burden of that liability is shared by all, and supported by the convention that every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret. The maintenance of the rule of the secrecy of individual contributions to discussion, and votes, in Cabinet, provides a guarantee of the most favourable conditions possible for the utmost frankness in the expression of views. To reveal the view, or vote, of a member of Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of joint responsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for the joint decision, each member is entitled to the assurance that he will be held responsible only for that, and only as one member of the whole Cabinet which made it; and that he will not be held responsible for any different view which he may have expressed. seeee ee re teres ee Ho eee - ae 36. To all this, of course, must be added the obvious and basic fact that 1t is part of the machinery of the government of the country; 1t 1s not the rules or customs of a private society which concern us. Cabinet secrecy 1s an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization." Given the nature of the Cabinet and the fact that rarely, if ever, does a Cabinet itself exercise a statutory power, it is perhaps not surprising that there have not previously been cases in which a challenge has been made to the legal validity of a Cabinet decision. Until recently, such a challenge would probably have been regarded as unthinkable. Before Sankey v Whitlam (1978) 142 CLR 1 it was generally accepted that Cabinet documents were immune from any disclosure: see Conway v Rimmer [1968] AC 910 at pp.952, 979 and 993. In Lanyon Pty Limited v The Commonwealth (1974) 129 CLR 650 at p.653 Menzies J said that it would be only in "very special circumstances" that even the court should examine such documents. Although there will be some cases -~ this is claimed to be one of them -~- in which the validity of Cabinet decisions may intelligently be examined without access to Cabinet documents, the immunity from disclosure of the documents relating to such decisions has sometimes been regarded as a reason for denying reviewability of such decisions in the courts of law: see Hogg "Judicial Review of Action by the Crown Representative" 43 Australian Law Journal 215 at pp.219-220. 37. It has always been agreed that the courts may examine the validity of an Executive Council decision in relation to the question whether it is in the circumstances beyond power -- see, for example, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 and Banks v Transport Regulation Board (Victoria) (1968) 119 CLR 222 -- or bad in form -- see Jones v The Commonwealth (1963) 109 CLR 475. But the accepted view in Australia -- although, as Stephen J pointed out in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at pp.210-215, not in other British Commonwealth countries -- was that the validity of Executive Counc1l decisions might not be impeached on other grounds. This view appears to have been strongly influenced by the famous dictum of Isaacs and Powers JJ in Duncan v Theodore (1917) 23 CLR 510 at p.544 that bad faith may not be imputed to "the act of the King by himself or his representative". As Aickin J pointed out in Toohey at p.234-235, that approach was consistent with the then prevailing attitude that the motives of Ministers were not reviewable in the courts. But it was also linked to the problem of confidentiality. In Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at p.179 Dixon J said that: "The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council". However, in his 1969 article -- cited above -- Mr P W Hogg powerfully argued the case for the abandonment of immunity for decisions made in due form and within power. In nore = tee gen a ene peor Enea cmp pene es ? 38. Re Doctors Hospital and Minister of Health (1976) 68 DLR (3d) 220 a Divisional Court of the Ontario High Court specifically rejected the Australian approach and reviewed the validity of the revocation by the Lieutenant-Governor in Council of approvals under the Public Hospitals Act 1970 (Ont.) of certain hospitals. The basis of the challenge to his decision was that he had taken into account extraneous matters. The Court said that it made no difference that the statutory power to revoke approvals had been vested in the Lieutenant-Governor in Council rather than in the Minister. The effect of the decision was summarized at pp.231-232: "We repeat and emphasize that the Court would not and could not, per se, review a decision made pursuant to royal prerogative. However, in the absence of clear words to the contrary in the Act in question, the Court can review the decision of the Lieutenant~-Governor in Council to ensure that the discretion to revoke had only been exercised in pursuance of the objects and policy of the Act." Although the case failed, because of the terms of the relevant statutory provision, the Supreme Court of Canada accepted the reviewability, upon natural justice grounds, of decisions of the Governor in Council in Attorney-General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1 at p.ll. During a period of 12 months in 1981-1982 there were three Australasian decisions rejecting the doctrine of immunity from review of decisions of an Executive Council: CREENDZ Inc v_Governor-General [1981] 1 NZLR 172, The Queen v Toohey; ex parte Northern Land Council and FAI Insurances Limited v Winneke (1982) 151 CLR 342. In each case the power discussed was a statutory, not a prerogative, power. ans srr + a een =a: corre ae - eerie oe 39. The effect of these decisions is to reject the dictum in Duncan v Theodore and authoritatively to establish the entitlement of the courts to inquire, upon any ground, into the validity of an Executive Council decision in relation to the exercise of a statutory power. Of course, the problem of confidentiality may occasion a difficulty of proof ina particular case but, as Gibbs CJ observed in Toohey at p.193, if evidence is available to make out the ground relied upon, the problem of confidentiality is no reason for declining to act upon that evidence. The respondents argue that the time has come to equate the position of Cabinet to that of the Executive Council. They point out that the reasons urged in support of the immunity of Cabinet decisions -- the doctrine of ministerial responsibility, the fact that decisions often involve policy elements and the general need for confidentiality -- are the very same reasons which have now been held insufficient to exclude the review of Executive Council decisions. I think that there is substance in this. If a case were found in which a statute had reposed in Cabinet -- as distinct from a Minister or the Executive Council -- the function of making a decision potentially affecting individual rights, it would be difficult to justify a refusal to review that decision. The general principle, referred to by Stephen J in Toohey at p.204, would apply: a eee aye a ree 40. "Unless a Parliament, acting constitutionally, can be seen from the terms of its grant of power to have excluded judicial review, the courts will, at the instance of a litigant, examine the exercise of powers so granted, determining whether their exercise is within the scope of Parliament's grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person." In FAI Stephen J took the matter one step further, saying at p.355 that "it will be the nature of the decision and its effect upon interested parties that will be decisive of the question" whether natural justice applies, "rather than the fact that the vehicle for the decision is an Order in Council". See also per Mason J at p.366. It is true that difficulties will arise in many cases in which a challenge is made to a Cabinet decision. Not only 1s there the usual difficulty in relation to a multi-member decision-maker concerning motives and the matters which were taken into account in making the decision; as to which see Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 at pp.82-83, Baiada v Baulkham Hills Shire Council (1953) 87 WN (Pt.1) (NSW) 222 at p.228 and Tooth & Co Ltd v Lane Cove Municipal Council (1967) 87 WN (Pt.1) (NSW) 361 at p.363. The rules as to the confidentiality of Cabinet proceedings will sometimes deny to a challenger the material necessary to make out his or her case. And they will usually provide a reason for declining to draw the usual inference from the failure of the opposing party to adduce evidence as to what occurred at the time the decision was made: see Jones ig hore supreme yes were ees v_ Dunkel (1959) 101 CLR 298. But, with all of these riders, there is no reason of principle to deny relief where the case can be made out. Perhaps the difficulties emphasize the undesirability of departing from the present practice whereby statutory powers are not vested in the Cabinet itself. But 1t should also be said that, if a Cabinet were required to observe the rules of natural justice in a particular case, it would be possible for it to devise means, not inconsistent with Cabinet confidentiality, of affording a hearing to affected persons: see FAI at pp.350,370, 384. However, the present case involves the exercise of a prerogative power. In Barton v The Queen (1980) 147 CLR 75 all members of the High Court agreed that the exercise by the Attorney-General of his prerogative power to lay an ex officio indictment was not reviewable in the courts. Gibbs ACJ and Mason J suggested at p.90 the existence of a "general principle that a prerogative power (is) not examinable by the courts". In Toohey Mason J discussed the matter in more detail. At p.219 he listed reasons for a distinction between the reviewability of a statutory decision and a decision made pursuant to the Crown prerogative: "The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the right of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review." et nee ge ere ee en 42. Mason J did not reject the notion of review of a prerogative decision. His Honour at p.220 noted the crumbling of the foundations of the old rule of immunity and endorsed the view expressed by Lord Denning MR in Laker Airways Ltd v Department of Trade [1977] QB 643 at p.705 that the exercise of a prerogative power "can be examined by the courts just as any other discretionary power which is vested in the executive". Mason J saw the relevant question, at p.221, as being "whether the exercise of a particular prerogative power 1S susceptible of review and on what grounds". The decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 is consistent with the approach of Mason J in Toohey. The principles adopted in CCSU were applied by Wilson J in Coutts v The Commonwealth (1985) 157 CLR 91 at pp.99-101. The CcCSU case related to a variation of the conditions of employment of staff in a defence establishment. The decision under challenge was made by the Minister in the exercise of a delegated power conferred by an Order in Council, itself made pursuant to the prerogative power. It was argued that, notwithstanding the non-statutory origins of the power, the Minister had been bound by an obligation of natural justice to consult before making the decision. The House rejected the challenge, but only because consultation may have affected national security. All members agreed that the mere fact that the power being exercised had its origins in the royal 43. prerogative was not enough to exclude judicial review. Lord Scarman at p.407 said that "the law relating to judicial review has now reached the stage where 1t can be said with confidence that, 1f the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power". Lord Diplock was more precise. At pp.408-409 his Lordship set out rules for determining the availability of judicial review which made no distinction between statutory and prerogative decisions: "To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him- some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. ..." It is important to note that Lord Diplock's test does not limit the "person other than the decision-maker" whose rights, obligations or legitimate expectations must be Sat emai 44. affected by the decision. It is not essential that this person be the applicant for judicial review. It us enough, for example, that this person be the beneficiary of the decision; for example, an applicant for a town planning consent. Once such a consent 1s given the validity of the consent is justiciable; and that issue may be considered by a court at the instance of a person with the requisite standing to sue. This approach is consistent with that taken in Australia: see, for example, Scurr v Brisbane City Council (1973) 133 CLR 242, Parramatta City Council v_ Hale (1982) 47 LGRA 38. Another important aspect of this formulation is its insistence upon the decision havung a direct and immediate consequence. For Lord Diplock it is not enough that the decision be one which is likely to influence some subsequent decision affecting the rights, obligations or legitimate expectations of a person. The instant decision must itself have that effect. It is obvious that it will be a rare case in which a Cabinet decision satisfies the tests postulated in CCSU but I think that, in the current state of authority, it is not possible to exclude the judicial review of a decision merely because it was one made by the Cabinet, merely because it was a decision taken in the exercise of the prerogative powers of the Crown or merely because the decision combined both these characteristics. The critical matter 1s the nature and effect of the relevant decision. Nature and effect involve two wre per wuss bane aen 45. elements: justiciability in the sense described by Lord Diplock in CCSU and, if the decision is justiciable, whether 1t contains some feature -- for example, a relationship to national security or to international relations -- which makes judicial review inappropriate in the particular case. Review in this case, and the application of the rules of natural justice It is convenient in this case to consider together two questions: whether the subject decision had the characteristics necessary for reviewability and whether it was the type of decision to which the principles of natural justice would apply. It will not always be convenient so to do. As I have pointed out, justiciability may arise because a person receives a benefit under it, whereas the application of the rules of natural justice will depend upon the question whether some person potentially suffers a detriment. But, in this case, the decision is said to be justiciable, and so reviewable, because of the detriment suffered by Peko-EZ. So, in practice, the two matters overlap. As it happens, the formulation by Lord Diplock of justiciability, quoted above, is very close to the statement by Mason J in Kioa v West (1985) 159 CLR 550 at p.582-583 of the circumstances which attract the obligation of natural justice. The Cabinet decision of 16 September 1986 was to nominate Stage II of Kakadu National Park for inclusion on the World Heritage List. The direct and immediate effect of the aa arama os pp topes oe - eee er tyre neice ee 46. implementation of this decision was to qualify the property for listing, with the possibilities that it might at some stage be included upon the List of World Heritage in Danger, under art.11.4 of the Convention, and that its conservation might be the subject of international assistance. But those remote prospects were less important than the fact that, in nominating the property, Australia identified it as an item of the cultural heritage and natural heritage situate in 1ts territory to which applied the obligations contained in arts.4 and 5 of the Convention. Theoretically speaking, the nomination did not create obligations towards Kakadu Stage II under arts.4 and 5. They existed, as from the commencement of the Convention, by virtue of the fact that the area had characteristics bringing 1t within the definitions in arts.1 and 2: see the Tasmanian Dam case at pp.132-133, 262-263. But the recognition of those characteristics by the Australian Government, in the act of nomination, would be likely to lead to a greater feeling of obligation by Australia to the unternational community to comply with arts.4 and 5 in relation to this area. The second effect of the implementation of the Cabinet decision was that the subject area thereupon became "identified property", within the meaning of s.3(2) of the World Heritage Properties Conservation Act; thereby giving rise to the possibility that a proclamation might he made by the Governor-General under that Act which would have the effect of rendering mining operations unlawful. The very fact that the Australian Government had publicly acknowledged that me 47. the area fell within arts.1 and 2 of the World Heritage Convention and that 1t met the high standard required by art.l1.2 -- "outstanding universal value" -- might create both international and domestic pressure for the Government to apply the World Heritage Properties Conservation Act if the area came under threat of damage or destruction. Having regard to these matters, it is clear that the decision made by Cabinet was disadvantageous to Peko-EZ. Just how disadvantageous is difficult to say. The relevant land was already within the national park, so that ss.8B and 10 of the National Parks and Wildlife Conservation Act already applied. The effect of those provisions was to confine Peko-EZ's mining operations, first, to 1ts existing mineral leases as distinct from the areas over which it had applications for leases -- or even exploration retention leases -- and, secondly, to operations which accorded with the Plan of Management. The evidence does not reveal whether the existing lease areas were worth mining. Apparently, no attempt was made to mine these areas during the period of nearly ten years which elapsed between the time that they were granted and the date of proclamation of Stage II. That fact may indicate that they were of little or no value; but there may be some other explanation. What 1s clear is that in September 1986 any possibility of mining the areas depended upon the terms of the Plan of Management. If Cabinet had determined to adopt a Plan of Management which excluded mining, as it did, without making any decision about World Heritage nomination, the outlook for Peko-EZ -- at least in 48. the short term -- would have been equally bleak. The real effect of the decision to seek listing was that, particularly 1£ the application were successful, the no mining policy would be more likely to be retained in subsequent Plans of Management. Although both the extent and timing of any practical disadvantage is speculative, I accept, as I have indicated, that Peko-EZ suffered some disadvantage. But it does not necessarily follow that the decision fell within the categories described either by Lord Diplock or by Mason J. Decisions are made by governments every day which disadvantage individuals, but which are not justiciable and in relation to which there is no question of requiring a prior hearing of those individuals. Almost every Budget includes decisions to impose direct imposts on individuals within particular classes or who engage in particular activities. Many individuals are indirectly affected by such imposts. People are advantaged and disadvantaged by decisions to spend, or to refrain from spending, public funds. A Cabinet decision to construct, or not to construct, a public facility in a particular place may have a financially devastating effect upon individuals, some of whom may not be readily identifiable. It is true, of course, that in such cases further action may be needed to implement the Cabinet decision before any effect will be suffered; for example, the presentation to Parliament of legislation or the taking of some action by the Executive Council. But this is not a point of distinction from the present case. sorry ree rar 49, The decision of Cabinet to seek World Heritage listing of Stage II will have domestic legal significance only if 1t results in a proclamation under the World Heritage Properties Conservation Act or 1f it affects the terms of subsequent Plans of Management. The respondents' argument is that, regardless of the absence of any direct or immediate legal consequence, the critical event -~ 1n a practical sense -- 1s the Cabinet decision. I agree that this is likely to be so; as it is in most of the cases to which I have referred. The point 1s that the law has not yet reached the stage of applying the obligation of natural justice to every decision which disadvantages individuals. To do so would he to ignore the warning given by Megarry VC in McInness v Onslow-Fane (1978] 1 WLR 1520 at: p.1535: "the concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens". Government, at all levels, would become unworkable if there were an obligation, before making any decision which may be financially disadvantageous to an individual, to seek out and to hear all affected persons. It was for this reason that both Lord Diplock and Mason J carefully defined the types of decisions to which the obligation applies. They did so by reference to the direct and immediate effects of those decisions. For them 1t was not enough that the instant decision might lead to some future decision or action which would have the specified effect. So 1t is necessary to consider the direct and immediate effects of the Cabinet decision of 16 September 1986. v eo 5 -3 pre Rene mee ne SPAT ee " —— ? ee an 50. I take first Lord Diplock's formulation of justiciability. There was no question of altering the mining rights or obligations of Peko-EZ. Peko-EZ's rights -- tightly constrained as they were -- remained as before. Nor did the decision to seek nomination deprive Peko-EZ of any benefit or advantage which it could legitimately expect to continue, or in connection with which an assurance had been given. The benefit or advantage conferred on Peko-EZ by its mineral leases was the right, subject to the terms of the Plan of Management as they might be from time to time, to mine the leased areas. That entitlement remained. The benefit or advantage conferred by the applications for mineral leases was to be the preferred applicant in the event that leases of those areas were granted in the future. That benefit remained. Whatever effect the decision might have had upon Peko~EZ's hopes that a future Plan of Management would permit mining, the decision did not deprive it of any present benefit or advantage. Peko-EZ was in much the same situation as the owner of a service station who finds its value diminished by a government decision to re-route a highway. The existing rights remain, but they have been made less valuable. And no assurance had been given regarding a hearing before a decision on World Heritage listing was made. The situation is similar in relation to the test applied by Mason J in Kioa. At pp.582-583 his Honour explained that the term "legitimate expectation" extends ™; wer er ree oe 51. beyond cases of the deprivation of a legal right or interest. He took the example of a decision to refuse a renewal of a licence, as in FAI, or to vary an existing practice, as in CCSU. But those examples have no present application; nor was there any relevant statement or undertaking, as in Attorney-General of Hong Kong v Ng Yen Shiu [1983] 2 AC 629. Both in Kioa and FAI -- see p.360 -- Mason J made clear that the application of the rules of natural justice depends upon the effects of the subject decision. It is not enough that the subject decision might create a climate conducive to a subsequent decision adverse to the interests or expectations of some person. In Daganayasi v Minister for Immigration [1980] 2 NZLR 130 at p.143 Cooke J pointed out that it 1s easier to import a duty of fairness when a decision relates essentially to the personal circumstances of an individual. Although his Honour did not spell them out, there are at least two reasons for this. Firstly, the decision is less likely to be dictated by broad considerations of public interest, which may require the submerging of individual disadvantage. Secondly, the affected persons are likely to be readily ascertainable and few in number. The view of Cooke J was echoed in FAI. At p.352 Stephen J pointed out that in making the subject decision -~ about the renewal of an insurance licence -- "policy considerations will not be to the forefront". Wilson J, at p.398, said: poe. ae MTT rer eo paren sar So a tee ree ee eer oo 52. "In many cases where decisions are committed to the Governor in Council there could be no question of that decision-making process being attended with a duty to be Fair and so to allow individual representations from persons affected by the decision to be incorporated into the process. The problem does not arise where decisions are of a legislative character or of a kind which affect the community as a whole or large sections of 1t. Again, 1f ut were the fact that a decision affecting an individual is dictated by the application of a principle of government policy, with the result that considerations personal to the individual do not and could not influence the outcome, then there is no applicable principle of fairness which requires more than that the individual in question be informed of that overriding policy consideration. In such a case it would be positively unfair to encourage the person concerned to think that anything could be gained by his making representations. Of course, in a democracy there are ways and means of challenging government policy but the processes of judicial review cannot be harnessed to that end." The present case did not relate essentially to the personal circumstances of any individual. It concerned a substantial area of land which the Government regarded as being of national, indeed international, significance and in relation to which many people had concerns of various types. Having regard to the nature and effect of the decision, the conclusion must be drawn, first, that 1t was not one having the characteristics of justiciability identified by Lord Diplock and, secondly, that it did not attract the obligation to accord natural justice to affected persons, within the test postulated by Mason J. cues er yee pense ae > y wer "vt een ee 5S -t ee eee re 53. Moreover, .and passing to the second aspect of reviewability, although the decision had possible municipal legal significance, the decision primarily involved Australia's international relations. Issues arising out of international relations have widely been regarded as non-justiciable: see Buttes Gas and Oil Co v_ Hammer [1982] Ac 888 at p.937-938, Gerhardy v Brown (1984) 57 ALR 472 at p.523, Ex parte Molyneaux [1986] 1 WLR 331 at p.336, Chicago & Southern Air Lines Inc v Waterman Steamship Corp (1948) 333 US 103 at p.111. In particular the courts have disclaimed the entitlement to adjudicate upon decisions by the Executive concerning the exercise of its treaty-making power. [In Blackburn v_ Attorney-General [1971] 1 WLR 1037 at p.1040 Lord Denning MR said: "The treaty-making power of this country rests not in the courts, but in the Crown; that 1s, Her Majesty acting upon the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts." In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at p.229 Mason J described the possibility of the High Court's reviewing "the judgment of the Executive and the Parliament that entry into a treaty and its implementation was for Australia's benefit" as "a course bristling with problems for the Court". The present case relates to a decision to implement a treaty. It raises the same problem for the courts as a decision to enter into a treaty. The decision to nominate Kakadu Stage II for recognition and better protection 54. under the existing Convention was not different in kind from a decision to enter into a treaty to secure the recognition and better protection of this part of Australia. In my opinion it should be concluded that the decision made in this case was not such as to be justiciable or to attract the obligations of natural justice. The grant of a hearing Two other matters should be mentioned. The first is that, if I had been of the opinion that the Cabinet decision was jJusticiable and subject to the obligation to afford a hearing to Peko~EZ, I would in any event have held that this ebligation had been discharged. The desirability of developing the uranium deposits controlled by Peko-EZ had been in issue at least since the publication of the Second Report of the Ranger Inquiry in 1977. Peko-EZ must have known that, since at least November 1983, the Government had had under consideration the possible nomination of Stage II to the World Heritage List. It had every opportunity to put submissions on both these matters. As might have been expected, the question whether the area should be nominated became entwined with the question whether mining should be permitted under the Plan of Management. In practical terms the latter question subsumed the former. If the Government decided to permit mining under the Plan of Management, 1t would be unlikely to take action under its other powers, for example under the World Heritage Properties Conservation Act, to restrict mining. On the other 55. hand, if the Government decided that the Plan of Management should not permit mining, this would remove one impediment to the unclusion of the area upon the World Heritage List. Allied with these matters was the critical question whether the Commonwealth would grant new leases over the areas not yet the subject of mineral leases. Without a favourable decision on that matter, the situation under the Plan of Management and under the World Heritage Properties Conservation Act was, for Peko-EZ, substantially an academic question. All of this was well understood by Peko-EZ, which devoted substantial effort to the persuasion of the relevant Ministers that the Commonwealth should decide in favour of mining. Peko-EZ put submissions upon that question both to Senator Evans and to Mr Cohen, as well as to the Director of National Parks and Wildlife and to the Senate Committee. The submissions fully put the pro-mining case. Only days before the Cabinet meeting Senator Evans responded sympathetically. He indicated that he understood Peko-EZ's arguments, and that his Department supported mining in the area. He attended the Cabinet meeting. There is no reason to doubt that he fully informed his colleagues of the case for permitting mining in the area. The respondents recognize that the obligations of natural justice, or fairness, would not have required that the members of Cabinet personally hear their submission. In the light of FAI this concession is properly made. But they say that they were entitled to put before each member of Cabinet a document setting out their case in their own words. They cite no authority for that submission. I am not aware of any case me er ee ee eee oo 56. which goes so far. On the contrary, there are numerous authorities in which emphasis is placed upon the flexible content of the rules of natural justice. The substance, not the form, is decisive. In a relevant case the decision-maker must take reasonable steps to give to any affected person an opportunity to put his or her case to those who will decide. But it is not necessary to afford an opportunity to put the case directly. Practical considerations must be taken into account. In the case of a decision by the Executive Council, it will suffice that an opportunity has been given to put written submissions to the responsible Minister: see FAI at pp.356, 370 and 384. There is no reason to distinguish Cabinet decisions. Unreasonableness Secondly, Peko-EZ submits that the Cabinet decision was void for unreasonableness; that 1s that the decision was an exercise of power so unreasonable that no reasonable person could have so exercised it: see s.5(2)(g) of the Administrative Decisions (Judicial Review) Act. This is often described as unreasonableness in the Wednesbury sense, in honour of its formulation by Lord Greene MR in Associated Provincial Picture Houses Limited v_ Wednesbury Corporation {1948] 1 KB 223 at p.230. The argument is that the effect of the decision was to render valueless interests of Peko-EZ which had been expressly preserved by the National Parks and Wildlife Act; and this without payment of any compensation. Counsel submit that the Crown may not resort to 1ts sapere oy TOTET nee eae te en eet ot cp cee ee vee ee ape se a i 57. prerogative powers for the purpose of taking away, destroying or rendering valueless the property of a subject without paying proper compensation. They cite Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75. Tt zs never easy to make out a case of unreasonableness, in the Wednesbury sense: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at pp.167-168. This must particularly be so in relation to decisions which involve a significant policy element, as Lord Diplock pointed out in CCSU at p.411: "While I see no a priori reason to rule out 'irrationality' as a ground for judicial review of a ministerial decision taken in the exercise of 'prerogative' powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground. Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that 1s admissible under judicial procedures and the way in which 1t has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another -- a balancing exercise which judges by their upbringing and experience are ill-qualified to perform." In a case, such as the present, in which the court lacks access to the whole of the material before the decision-maker, the task of upsetting a decision on the ground of unreasonableness must almost certainly prove impossible. Not 58. having the relevant material, the court cannot say, in the language of Lord Diplock in Bromley London Borough Council v Greater London Council [1983] AC 768 at p.821 that the decision was one "that, looked at objectively, (is) so devoid of any plausible justification that no reasonable body of persons could have reached (it)". However, leaving aside these formidable difficulties, as will already be apparent, I am unable to accept counsels' analysis of the effect of the subject decision. The Cabinet decision did not take away the interests of Peko-E2Z, which had been preserved under s.8B of the National Parks and Wildlife Act. Those interests continued in force. + Their practical value depended upon the content of the relevant Plan of Management, as it might be from time to time. To the extent that a consequence of the Plan of Management, or of World Heritage listing, will be a refusal by the Minister to consent to a renewal of any existing interests, provision for compensation is made by s.8B(2) of the National Parks and Wildlife Act. - Notwithstanding these matters, the indirect consequence of the Cabinet decision may have been to render the interests of Peko-EZ less valuable. It does not follow that the decision was unreasonable, in the Wednesbury sense. The decision was one going beyond the personal interests of Peko-EZ. It involved important questions of national policy and international relations. In relation to unreasonableness, it can never be enough to say that the effect of a particular decision was to wpe rar rn ene a rn ery a sea eee: 59. disadvantage, without compensation, a particular individual. That must often be the case. The whole effect of the decision must be considered before 1t may be described as being devoid of justification. The appeal should be allowed. The order made by the learned primary judge should be set aside and in lieu thereof 1t should be ordered that the Order Nisi be discharged. The four first respondents should be ordered to pay the costs of the present appellants, both here and below. There should be no order regarding the costs of the Attorney-General of the Northern Territory. I certify this and the fifty-eight (58) preceding pages to be a true copy of the Reasons for Judgment of his Honour Justice Wilcox. Associate | [Loewe Jae Date: 7 September 1987 Counsel for the Appellants: Mr DM J Bennett OC with Mr T J Riley and Ms C C Simpson Solicitor for the Appellants: Australian Government Solicitor Counsel for the Pirst Respondents: Mr R A Conti OC with Mr A J Sullivan and Mr D R Conti Solicitors for the First Respondents: Clayton Utz Counsel for the Second Respondent: Mr B Martin OC with Mr G Nicholson Solicitor for the Second Respondent: Solicitor General for the Northern Territory Date(s) of hearing: 16, 17 and 18 June 1987 or eo eee nee - penne ee =>