Koowarta v State of Queensland (Wild Rivers)
The Federal Court has provided a timely reminder to government decision-makers – particularly ministers – to diligently consider briefing materials when exercising their powers.
Most of the public attention received by Justice Greenwood's decision about three declarations made by the Queensland Government over three rivers in Cape York (under the Wild Rivers Act 2005 (Qld) (Act)) was due to the role of the widow of land rights campaigner, John Koowarta, in helping to bring the case.
However, for agencies, the real importance of the decision lies in the salutary lesson for decision-makers to properly understand the statutory pre-conditions that may be required to be satisfied before making a decision. The case also highlights a growing problem for government in making decisions on high-profile issues that have attracted large numbers of "pro forma" submissions.
In the Wild Rivers case, the Wik, Umpila and Lama Lama peoples of Cape York challenged declarations made under the Act over three river systems – the Archer, Lockhart and Stewart – by the former Minister for Natural Resources, Stephen Robertson, on 31 March 2008. The declarations honoured a politically-important election commitment by the then-Labor Government to do so.
Under the Act, before making a declaration, the Minister was required to publish a notice of his/her intention to do so and, as soon as practicable afterwards, publish another notice setting out the details of the proposed declaration and inviting written submissions in relation to it.
Prior to making a declaration under s 15 of the Act, the Minister must consider a range of matters, including the results of the community consultation on the declaration proposal and all properly made submissions in relation to it.
The Aboriginal applicants challenged the declarations, claiming that the Minister failed to consider all those submissions before making a decision, and that they were contrary to the Native Title Act 1993 (Cth) and the Racial Discrimination Act 1975 (Cth).
However, in deciding in favour of the applicants it was only necessary for Justice Greenwood to find for them on the first ground: that the Minister for Natural Resources had failed to consider submissions provided by interested parties prior to making the declarations.
Evidence of the Minister
In this case, 3,602 submissions were made by interested parties after the proposal notice was issued.
Giving evidence to the Court, Mr Robertson insisted that he had read submissions and a draft ministerial brief note from his department before he signed off on the declarations on 31 March 2009. However, the public servant responsible for the program contradicted this evidence, saying the Minister did not have the submissions or the details of the community consultations prior to 1 April 2009, when they were delivered to his office. Justice Greenwood acknowledged the realities of modern ministerial offices, but found the Act required the Minister to personally consider the submissions before making a decision, which, in this case, had not been done.
The problem posed by modern letter writing campaigns
One of the problems exposed by the case is the difficulty in exercising decision-making powers that require consideration of all submissions, where a large volume of submissions are made by interested parties. In particularly contentious public debates, it is now fairly common for lobby groups to encourage people to lodge a pro-forma submission via their websites. As a result, given the ease of making such submissions, decision-makers are often confronted by a high volume of largely identical submissions.
This was the case in relation to the Wild Rivers declarations: 2,577 of the 3,602 submissions were all "facilitated through the Wilderness Society website". While they all supported the declarations being made, they were not all identical. Some featured differing introductory comments and the Minister's department had not gone through each and every submission to determine the extent of the variation between them.
Given the terms of the statutory preconditions of decision-making power under the Act, it is arguable that the Minister was required to consider each and every submission. Justice Greenwood toyed with this proposition. However, his Honour eventually found that variations among the pro-forma submissions were insignificant. Citing Justice Mason's comments in Minister for Aboriginal Affairs v Peko Wallsend Ltd – that a factor might be so insignificant that a failure to take it into account could not have materially affected the decision – he found it was not necessary to consider each and every one of the pro forma submissions.
However, because the Minister had not considered any of the 3,602 submissions, his Honour did not have to ultimately decide on this issue, and it is unclear whether other Courts would agree with this approach. There is also no guidance as to what degree of difference between submissions will allow them not to be "significantly different" in the eyes of the courts.
What this means for agencies
The absence of guidance may yet be a problem for other decision-makers, when a decision-making power requires that they personally consider matters. In modern politics, such statutory decision-making provisions create difficulties where time-challenged ministers routinely rely on an office of private advisors and their departments for advice. The Wild Rivers decision is an important reminder that ministers need to personally be across relevant matters, as they could find themselves in the witness box having to defend their decisions.
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