Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
It is well established that, in the absence of any express limitation in a statute, a consideration will be considered irrelevant only where there is "in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40 and the cases there cited. 34 I must focus upon the Act itself as a whole to determine whether there is some limitation on the power of the respondent. Whilst I am concerned with the interpretation of a Commonwealth Act, it must be recalled that I am concerned primarily with Pt IIA which deals with Victorian Aboriginal cultural heritage. The Act envisages that the Commonwealth Minister may delegate his powers to a state minister, which has occurred in this case. In my view, the Act envisages that a delegation could be made to the respondent in respect of the power to appoint inspectors in relation to Victorian Aboriginal cultural heritage, and envisages that the state minister be given the discretion to exercise the power in view of the specific needs in Victoria of Aboriginal cultural heritage. The question here is whether the Act imposes a limitation on the respondent so as to prevent him from adding the new criteria in considering the appointment suspension or removal of inspectors. If the new criteria are inconsistent with the scheme in respect of inspectors and s 21R, then putting aside any proposed legislation, taking into account the new criteria would necessarily be taking into account an irrelevant consideration. 35 The Act does not contain any express limitation on the exercise of the respondent's power to suspend and remove. As I have said, I accept that the Act gives prominence to the role of Aboriginal people in deciding what should occur in respect of areas and objects of importance to them. In appointing inspectors under s 21R, the respondent has an obligation to consult a local Aboriginal community, in an endeavour to appoint people with the appropriate expertise and knowledge, and to ascertain whether the person is able to perform the duties of an inspector. These criteria must be taken into account, but are not necessarily the only criteria to be applied. I do not regard these criteria as the exhaustive criteria to which the respondent may have regard. 36 Further, there is nothing which would defeat the purposes of the Act if no inspectors were appointed, or all inspectors were temporarily suspended, or even if they were all removed. Section 4 of the Act sets out its purposes, which purposes can obviously be fulfilled without the appointment of inspectors. The Act applies to areas and objects in Australia, not just to Victoria. Part IIA and the appointment of inspectors under the Act only applies to Victoria. Whilst the appointment of inspectors may further the purposes of the Act, they are not necessary for the implementation of such purposes generally. 37 The principal power given to an inspector is that conferred by s 21C; that is to make an emergency declaration. The Commonwealth Minister, the respondent, and any other delegates of the Commonwealth Minister or of the respondent may also exercise the power to make an emergency declaration, as may a magistrate (although only on application by a local Aboriginal community).