Bob Brown Foundation Inc v Barnett (No 2)

[2023] TASSC 6

[2023] TASSC 6

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bob Brown Foundation Inc v Barnett (No 2) [2023] TASSC 6
PARTIES:	BOB BROWN FOUNDATION INC
HAYES, Courtney
JORDAN, Scott
v
BARNETT, Guy
MMG AUSTRALIA LIMITED
FILE NO:	536/2022
DELIVERED ON:	12 April 2023
DELIVERED AT:	Hobart
HEARING DATES:	7, 8 November 2022
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Generally – Whether constructive failure to exercise jurisdiction – Whether Minister engaged in active intellectual process in determining application.

Carrascalo v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352, followed.
Aust Dig Administrative Law [1028]

Energy and Resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Extraction titles – Acquisition of title – Taking possession and marking out – Marking out – Requirement that marking out notice include name of proposed applicant for lease – Name of employee given – Lease not invalidated.

Mineral Resources Development Act 1995 (Tas), s 72(1).
Mineral Resources Regulations 2016 (Tas), reg 6(1)(b)(vi).
Aust Dig Energy and Resources [1064]

Energy and Resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Extraction titles – Other matters – Tasmania – Mining lease for access purposes – Applicant already entitled to traverse subject land – Whether lease could enable land to be used to enable applicant to access other land.

Mineral Resources Development Act 1995 (Tas), s 106(1)(b).
Aust Dig Energy and Resources [1070]

REPRESENTATION:

Counsel:

Applicants:	C Gunson SC
First Respondent:	P Turner SC
Second Respondent:	M E O'Farrell SC, K Cuthbertson SC

Solicitors:

Applicants:	FitzGerald and Browne
First Respondent:	Solicitor-General
Second Respondent:	Ashurst Australia

Judgment Number:	[2023] TASSC 6
Number of paragraphs:	57

Serial No 6/2023 File No 536/2022

BOB BROWN FOUNDATION INC, COURTNEY HAYES and

SCOTT JORDAN v GUY BARNETT and MMG AUSTRALIA LIMITED (No 2)

REASONS FOR JUDGMENT BLOW CJ
12 April 2023

1             The second respondent, MMG Australia Limited, operates a mine near Rosebery. It wishes to establish a new tailings dam on the northern side of the Pieman River. There is a controversy as to the likely environmental impact of the proposed tailings dam. MMG holds a mining lease over the site of the proposed tailings dam, Mining Lease 6M/2008. The principal access route to that site is over a road named Helilog Road which traverses an area of Crown land.

2 On 31 January 2022 the first respondent, the Honourable Guy Barnett, in his then capacity as the Minister for Resources, granted MMG a mining lease over Helilog Road and areas extending 100 metres on either side of that road. It is Mining Lease 6M/2021 ("the mining lease"). It was applied for by MMG pursuant to s 106(1)(b) of the Mineral Resources Development Act 1995 ("the Act"), so that the land in question could be used to enable MMG to access the site of the tailings dam. No mining on the subject land was proposed or authorised.

3             Bob Brown Foundation Inc, Courtney Hayes and Scott Jordan have applied to this Court for review of the Minister's decision under the Judicial Review Act 2000. Ms Hayes and Mr Jordan are employees of the first applicant, Bob Brown Foundation Inc. Counsel for both respondents conceded that the applicants had the standing to bring this application.

4   The applicants relied on a large number of grounds of review. Their contentions can be

summarised as follows:

• That the Minister had no power to grant the mining lease because a "marking out notice" required under the Act was not in the name of MMG, but in the name of one of its staff.

• That the Minister had no power to grant the mining lease because he did not sight an application for its grant in an approved form, the making of which was required by the Act.

• That the Minister had no power to grant the mining lease because he had already rejected MMG's application for it to be granted.

• That it was not open to the Minister to be satisfied that the grant of the mining lease was necessary to enable MMG to gain access to the site of the tailings dam because it already had the right to use Helilog Road for that purpose.

• That the Minister's decision to grant the mining lease was of no effect because he did not give genuine and independent consideration to MMG's application.

• That the Minister took into account an irrelevant consideration, namely "security of access and control".

• That the Minister improperly exercised the power to grant the mining lease because he granted it for the purpose of thwarting protest activity.

• That the granting of the mining lease was so unreasonable that no reasonable person could have granted it.

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The scheme of the Act

5 The main provisions in the Act that are relevant to this case can be summarised as follows:

• As a general rule, mining on any area of land is prohibited, subject to exceptions listed in s 69.

• Mining is permitted in an area of land by a person who is the holder of "a lease in respect of that area of land": s 69(a).

• In s 3, "lease" is defined to mean "a mining lease in force under Part 4".

• Before an application for a mining lease is made, the person who intends to apply for that lease "is to mark out in the prescribed manner the land to which the application is to relate": s 72(1).

• Applications for mining leases are made to the Minister administering the Act: s 70(1).

• Requirements in relation to such applications are listed in s 70(2). An application is to be in an approved form: s 70(2)(a).

• The Director of Mines is required to consider each application for a mining lease: s 75(1). If the Director intends to recommend to the Minister that the application be granted, the Director is required to notify the applicant pursuant to s 75(2)(a), and to provide the applicant with a copy of the proposed lease pursuant to s 75(2A). The applicant may then make submissions to the Minister in relation to the proposed terms and conditions of the lease within 14 days after receiving a copy: s 75(2B).

• After considering an application for a lease and any recommendation of the Director of Mines, and subject to any decision of the Mining Tribunal, the Minister may either grant the application or refuse to grant the application: s 78(1).

• Under s 106(1) the holder of a mining lease may, in an approved form, apply to the Minister for a lease in relation to land for storage or various other purposes not involving mining on that land. Under s 106(1)(b), such an application may be made for a lease "to enable the land to be used to enable the applicant to access land to which a lease relates".

6 The mining lease in relation to Helilog Road was a lease for access purposes under s 106(1)(b), not a lease that permitted mining.

Marking out

7 Section 72(1) of the Act, as I have said, provides for the land to which an application is to relate to be marked out "in the prescribed manner". Regulation 6(1) of the Mineral Resources Regulations 2016 prescribes the manner of marking out. It includes the following:

"6 Marking out

(1) For the purposes of section 72 of the Act, a person is to mark out land in respect of

an application for a lease by –

(a) erecting a datum post …

(b) affixing to the datum post a legible and durable notice stating the following:

…
(vi) the name and address of the applicant for the lease … ".

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8             On 16 September 2021 an MMG employee named Adam Pandelis affixed a marking out notice to a datum post on the north-east corner of the relevant land. That notice gave the name and address of the applicant for the mining lease as "Steve Scott of PO Box 21, Rosebery, Tasmania, Australia, 7470". It gave his email address as "[e-mail]".

9             Regulation 6(1)(b)(vi) was not complied with since the notice said that the name of the applicant for the lease was Steve Scott, when in fact the applicant for the lease was MMG. The applicants contend that, as a result, the Minister had no jurisdiction to grant the mining lease and that it is invalid.

10          This submission must be rejected because the marking out requirements in both s 72(1) and reg 6(1) use the words "is to".

11 Section 10A of the Acts Interpretation Act 1931 provides as follows:
"10A Meaning of 'must', 'is to' and 'may'
(1) In any Act –

(a) the word 'must' is to be construed as being mandatory; and

(b) the words 'is to' and 'are to' are to be construed as being directory; and

(c) the word 'may' is to be construed as being discretionary or enabling, as the
context requires.

(2) Subsection (1) applies only in respect of a provision of an Act if that provision is passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act 2000 ."

12           The Justice Legislation (Miscellaneous Amendments) Act 2000 commenced on 14 November 2000. The original version of s 72 was enacted in 1995. However the original s 72(1) was repealed and replaced with the current s 72(1) by the Mineral Resources Development Amendment Act 2013, s 77. Regulation 6 was made in 2016. It follows that the requirements in s 72(1) and reg 6(1) as to what a person "is to" do, are directory, not mandatory.

13           The common law classification of requirements as directory or mandatory was abandoned by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355. However, for the purposes of Tasmanian legislation, the concepts of directory and mandatory requirements have been preserved in relation to legislation enacted or made after 14 November 2000.

14           When courts observed a distinction between mandatory and directory provisions, there were cases in which it was held that an act done in breach of a directory provision did not ever result in invalidity, and there were other cases in which it was held that an act done in breach of a directory provision would result in invalidity unless there had been substantial compliance with the provision. See Project Blue Sky (above), per McHugh, Gummow, Kirby and Hayne JJ at [92] and the cases cited there.

15           In this case, there was substantial compliance with the requirements of s 72(1) and reg 6(1). Although the marking out notice did not say that the proposed applicant was MMG Australia Limited, its postal address appeared in the notice, and the name MMG appeared in the email address of Steve Scott. It was well known that MMG Australia Limited was operating a mine near the subject land. No prejudice could have been caused to anybody who might initially have thought that Mr Scott was intending to apply for a mining lease over Heliog Road for himself.

16 That being the position, I do not need to determine whether non-compliance with a provision that is "directory" within the meaning of s 10A of the Acts Interpretation Act will never result in

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invalidity, or whether such non-compliance can result in invalidity where there is not substantial compliance. Whatever the correct interpretation, the failure to name MMG Australia Limited as the applicant in the making out notice could not have affected the validity of the mining lease that MMG proposed to apply for.

17 MMG contended that the marking out requirements of s 72(1) did not apply in respect of leases for access, or other purposes incidental to mining, granted under s 106. Because of the conclusion that I have reached in relation to the effect of s 10A of the Acts Interpretation Act, I do not need to address that argument.

No sighting of an application is an approved form

18 Section 106(1) of the Act, which permits a lessee or former lessee to apply to the Minister for a mining lease for access or other purposes, requires such an application to be "in an approved form". There is evidence establishing that the Minister did not personally sight MMG's application for a mining lease over Helilog Road. The applicants contend that he therefore could not have satisfied himself that the application for the mining lease was in an approved form. Ground (a) of the amended originating application asserts that the Minister did not have jurisdiction to make the decision to grant the mining lease because he failed to consider MMG's application. Ground (j) asserts that he failed to exercise his jurisdiction to grant a mining lease because he did not ever sight the application.

19           There is no suggestion that the application was not in an approved form. The parties provided me with a copy of it. It is seven pages long. It is headed "Mineral Resources Tasmania" and "Department of State Growth". At the foot of each page there is a note reading, "Form M1 July 2021". It is signed and dated 21 September 2021. The form used by MMG appears to have been sufficiently completed. There was no suggestion to the contrary.

20           The Minister's subordinates did not ever send him a copy of the application. He was given details of it in a number of documents. The first of those appears to have been a minute from the Director of Mines dated 19 January 2022.

21           Ministers are busy people. The High Court case of Minister for Aboriginal Affairs v Peko- Wallsend Limited (1986) 162 CLR 24 concerned a decision made by a Minister based on a recommendation contained in a departmental brief. Gibbs CJ said the following, at 30-31:

"Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact that was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material facts into account, and will not have formed his satisfaction in accordance with law."

22          Similar comments were made by Brennan J (as he then was) in that case at 65-66, and by Lord Diplock in Bushell v Environment Secretary [1981] AC 75 at 95.

23 There is nothing in s 106 or elsewhere in the Act that would suggest that the Minister had a non-delegable personal obligation to scrutinise every application under s 106. I accept that that section requires the use of an approved form so that those administering the Act can obtain information that they need for the purpose of assessing the application. There is no reason to imply a requirement of personal scrutiny by the Minister. The submissions concerning the fact that he did not sight the application are rejected.

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Application rejected before it was purportedly granted?

24           On 31 January 2022 the Minister decided to grant the mining lease, and proceeded to sign it. The applicants contend that he had no power to grant it because he had made a decision to reject MMG's application on or about 21 January 2022, and had no power to reverse that decision.

25   The following sequence of events occurred:

• On 19 January 2022, the Director of Mines wrote a minute to the Minister in which he recommended the granting of the mining lease to MMG.

• That minute was returned marked "Not Approved", with a note on it from the Minister. It appears that that note was incomplete. It read as follows:

"I appreciate an update and

in position to consider accepting the Directors recommendation."

• On 21 January 2022 the Minister sent an email about the minute to a Departmental Liaison Officer named Marnie Peebles, saying this:

"Not agreed.

As process review underway I would appreciate an update and further advice on matter before I am in position to consider accepting the Directors recommendation."

• On 27 January 2022 the Secretary of the Department of State Growth, Mr Evans, signed a briefing note for the Minister relating to the s 106 application.

• On 28 January 2022 an Acting Departmental Liaison Officer named Marissa Bastion emailed the briefing note and other documents to the Minister.

• On 31 January 2022 the Director of Mines sent a second minute to the Minister recommending that he grant the mining lease.

• On 31 January 2022 the Minister approved the second minute from the Director of Mines and signed the mining lease.

26 On 21 January 2022, once the Minister had considered the application for the mining lease and the recommendation from the Director of Mines, he was empowered by s 78(1) of the Act to grant the application or to refuse to grant the application. He did not grant it on that day. It does not follow, as night follows day, that he must therefore have refused it. It is startling clear that, at that stage, the Minister neither granted nor refused the application. He asked for more information. He deferred the making of a decision. The submissions of the applicants to the contrary have no merit at all.

An unnecessary lease over Helilog Road?

27 Helilog Road traverses an area of Crown land. As the holder of the mining lease over the tailings dam site, MMG was authorised by s 84(1)(b) of the Act to pass over Crown land for the purposes of mining operations at the tailings dam site. Section 84(1) relevantly provides as follows:

"(1) A lease authorises the lessee, and a person acting under a contract of service, or a
contract for services, with the holder of the lease–

(a) to carry out, in accordance with the conditions of the lease, mining operations in the area of land specified in the lease for minerals, or minerals within the category of minerals, specified in the lease; and

6   No 6/2023

(b) for that purpose, to, in accordance with the conditions of the lease, enter on,
and pass over, Crown land …".

28 Helilog Road was constructed by a statutory corporation named Forestry Tasmania which trades as "Sustainable Timber Tasmania". By virtue of s 7(1) of the Forest Management Act 2013, it is the "Forest Manager of permanent timber production zone land". It is common ground that Helilog Road and the adjacent land constitutes permanent timber production zone land for the purposes of that Act. Section 13(1) of that Act requires Forestry Tasmania to "perform its functions and exercise its powers so as to allow access to permanent timber production zone land for such purposes as are not incompatible with the management of permanent timber production zone land" under that Act. It constructed Helilog Road to provide access to permanent timber production zone land to the south of Pieman Road. It allowed MMG to have access to Helilog Road. Before the granting of the mining lease it had authorised MMG to construct gates at several locations along Helilog Road in order to manage the activities of protesters.

29           The applicants contend that, because MMG already had the right to use Helilog Road to access the tailings dam site, it was not open to the Minister to grant the mining lease over Helilog Road. Their argument, as I understand it, can be summarised as follows:

• Section 106(1)(b) permits an application to be made for a mining lease "to enable the land to be used to enable the applicant to access land to which a lease relates".

• MMG applied for a lease to enable the Helilog Road land to be used to enable it to access the tailings dam land to which Mining Lease 6M/2008 related.

• The granting of a mining lease over the Helilog Road land could not enable MMG to do anything that it was not already able to do since it was authorised both by s 84(1)(b) of the Act and by Forestry Tasmania to use Helilog Road for access to the tailings dam site.

• The question whether the granting of a mining lease could enable land to be used to enable an applicant to access land to which another mining lease relates is a question of jurisdictional fact.

• Because MMG already had the right to use Helilog Road for access to the tailings dam site, it was not open to the Minister to be satisfied of the existence of that jurisdictional fact, and he therefore had no power to grant a mining lease under s 106.

30           However the granting of the mining lease under s 106 enabled MMG to do more than just use the existing road. It made it possible for MMG to be authorised to undertake land clearing and road improvements. It also protected it against risks of the road being permanently or temporarily closed to it by Forestry Tasmania.

31           Clause 4(a) of the mining lease said that MMG "must not use the Lease Area for any purpose other than the Authorised Purpose". Item 1 of Schedule 2 of the mining lease defined the "Authorised Purpose" as follows:

"The use, maintenance and upgrading of Helilog Road (within the Lease Area), for the purpose of providing access to the land which is the subject of Mining Lease 6M/2008."

32           Clause 6(1)(e) of the mining lease made provision for MMG to carry out earthworks, roadworks and the clearing of vegetation along Helilog Road, subject to it first obtaining permission from the Director of Mines. That clause reads as follows:

"The Lessee must:
…

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(e)

not, without the prior written consent of the Director, carry out, or arrange for the carrying out of, any Works on the Lease Area, and if the Director consents to the carrying out of any Works, the following provisions apply:

(i)	the Director may impose conditions in relation to the Works and/or the carrying out of those Works; and
(ii)	without limiting any conditions that may be imposed by the Director, the Lessee must ensure that the Works are carried out:

(A)	in a proper and workmanlike manner;
(B)	in conformity with any plans and/or specifications approved by the Director;
(C)	to the reasonable satisfaction of the Director;
(D)	so as to comply with all applicable laws; and
(E)	in accordance with any other conditions, directions or requirements of the Director …".

33   The following definition appeared in cl 1.1 of the mining lease:

"'Works' includes building works, demolition works, earthworks, roadworks and clearing of vegetation on, or affecting the Lease Area, but does not include routine minor repairs to any existing road on the Lease Area."

34          Under cl 6.1(g) of the mining lease, MMG was required to maintain the alignment of Helilog Road to the satisfaction of the Director of Mines.

35 Helilog Road constitutes a "forest road" as defined in s 3 of the Forest Management Act. By virtue of s 23(2) of that Act, the Forest Manager (Forestry Tasmania) may close a forest road or any section of forest road either permanently or temporarily to all traffic, or to a class of traffic, if the Forest Manager considers that the closure is necessary or expedient for the purposes of discharging its responsibilities, or in the interests of safety. Without a mining lease over Helilog Road, MMG was in a situation where there was some risk that Forestry Tasmania would one day decide to close that road pursuant to s 23 either temporarily, permanently, or to heavy traffic.

36 As a matter of statutory construction, a mining lease under the Act would ordinarily be taken to prevail over the rights and interests of all others in the leased land, subject to any provisions in it to the contrary. The grant of a mining lease for access purposes must therefore be taken to give MMG rights of access that prevail over any right of closure conferred on Forestry Tasmania.

37           Clearly the granting of the mining lease over Helilog Road enabled MMG not just to use that road but, provided it obtained the permission of the Director of Mines, to upgrade it by carrying out earthworks, roadworks and the clearing of vegetation. Such activities, if carried out, would facilitate access to the tailings dam site, perhaps by large vehicles. The granting of the mining lease over Helilog Road also gave MMG rights of access that prevailed over any powers of Forestry Tasmania to prevent or limit the use of the road.

38 Submissions were made to me as to the meaning of the word "enable" in s 106(1)(b). Section 8A of the Acts Interpretation Act requires that word to be given a purposive interpretation. The purpose of s 106(1)(b) is to facilitate access to mining lease sites by the holders of mining leases. It follows that the word "enable" should be given a wide interpretation.

39           Having regard to the consequences of the granting of the mining lease, it was clearly open to the Minister to be satisfied that the granting of the lease would enable the Helilog Road land to be used

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to enable MMG to access the land to which its other lease related. I need not address the question of whether or not that was a jurisdictional fact. If it was a jurisdictional fact, it was open to the Minister to be satisfied of that fact. This argument therefore fails.

No genuine and independent consideration of the application?

40 When the Minister granted the mining lease on 31 January 2022 he adopted a statement of reasons that had been prepared by others. The applicants contend that he did not give genuine and independent consideration to MMG's application, and that there was therefore a constructive failure to exercise jurisdiction on his part. They contend that the Minister did not give the application consideration as impliedly required by the Act; that he therefore "did not have jurisdiction to make the decision" within the meaning of s 17(2)(c) of the Judicial Review Act; and that the decision was "not authorised" by the Act, within the meaning of s 17(2)(d) of the Judicial Review Act.

41           There is no common law requirement for an administrative decision-maker to give reasons for a decision: Craig v South Australia (1995) 184 CLR 163. The Act does not require reasons to be given for administrative decisions. However a decision-maker exercising powers conferred by the Act can be required to provide a statement of reasons pursuant to s 20 of the Judicial Review Act. In this case the Minister was advised to issue a statement of reasons without one having been requested, and that is what he did. He was not its author.

42          I have already outlined some of the events leading up to the granting of the mining lease. In more detail, events occurred in the following sequence:

• In 2017 the Government adopted a policy of providing a statement of reasons whenever a decision to grant a mining lease related to "significant or particularly sensitive mining projects". That decision was announced by the Minister during the second reading speech for the Mineral Resources Amendment Bill 2017 on 8 August 2017. At that time he said, "The provision of a statement of reasons will be proactive and support the government's commitment to the principles of good governance, including transparency in decision making, open data and accountability."

• On 28 April 2021 MMG applied for a mining lease over the Helilog Road land. By mistake, the company applied for a lease authorising mining for certain minerals instead of a lease for access purposes under s 106(1)(b). The Director of Mines recommended that the application be granted, and it was. Then it was discovered that certain provisions of the Act had not been satisfied. It was concluded, apparently by departmental officers, that the lease was therefore invalid.

• On 21 September 2021, after that conclusion had been reached, MMG made its application for a lease under s 106(1)(b).

• On 26 October 2021 the Director of Mines, after considering MMG's application, wrote to that company advising that he intended to recommend the granting of its application. He sent a copy of the proposed lease document. MMG did not make a submission to the Minister in relation to the proposed terms and conditions of the lease.

• On or before 19 January 2022 a statement of reasons in respect of the possible grant of MMG's application was prepared within the Department of State Growth and reviewed to ensure that it satisfied the requirements of the Judicial Review Act.

• On 19 January 2022 the Director of Mines wrote a minute to the Minister. It was six pages long. He recommended the granting of the mining lease. The Director provided the draft statement of reasons with his minute, said that it had been reviewed by "the Department" to ensure that it satisfied the requirements of the Judicial Review Act, and said that, if the Minister approved it, it would be

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published on the website of Mineral Resources Tasmania. His minute included the following in
relation to his recommendation for the mining lease to be granted:

"Granting the lease will provide the applicant with security of access and ensure their access rights are honoured by STT [Sustainable Timber Tasmania], beyond STT's standard licence agreement. The grant will also provide the applicant with greater management control over activities within the application area where they relate to their required mining operations. It is now common practice for mining lease applications, to include the access route, from the area of proposed works to the nearest public road, to provide security of access to the proposed works.

Granting the application for this lease, with the width of 100 metres each side of the centre line of Helilog Road, provides flexibility for the applicant to implement future engineering measures for potential upgrades of Helilog Road to ensure safe and controlled access to the South Marionoak site if construction of the TSF [Tailings Storage Facility] goes ahead. These measures may include but are not limited to, partial realignment of Helilog Road, constructing passing bays, sedimentation traps, stand-by laydown areas for machinery and stockpiled material, to support the potential construction phases of the TSF. These works may require additional approval from MRT [Mineral Resources Tasmania] and/or any other relevant authority."

• On 21 January 2022 Ms Peebles, the Departmental Liaison Officer, forwarded the Director's minute and the draft statement of reasons to the Minister.

• On 21 January 2022, as I have said, the Minister decided to defer the making of a decision. That was when he wrote to Ms Peebles saying, "As process review underway I would appreciate an update and further advice on matter before I am in position to consider accepting the Directors recommendation."

• On 27 January 2022 the Secretary of the Department of State Growth, Mr Evans, wrote and signed a briefing note to the Minister. Mr Evans provided a thorough explanation of the provisions of the Act that were relevant, or possibly relevant, to MMG's application, and the steps taken by his subordinates to address each of those requirements. He concluded that by saying that, following the erroneous recommendation relating to the application of 28 April 2021, a review of the processes and procedures in relation to making recommendations for the grant of mining leases and exploration licences had been commenced, and that that review was "in the final stages of completion".

• On 28 January 2022 Ms Bastion, the Acting Departmental Liaison Officer, sent Mr Evans' brief to the Minister by email, together with a copy of the Director of Mines' minute of 19 January 2022 marked "Not Approved".

• On 31 January 2022 the Director of Mines wrote a second minute to the Minister recommending the granting of MMG's application. That minute was substantially similar to his first minute, but it included a paragraph about the Minister's response to the first minute and the provision of further information by Mr Evans.

• On 31 January 2022 the Minister approved the second minute from the Director of Mines, and signed the mining lease. By approving the minute, he impliedly authorised the publication of the statement of reasons in the form that had been submitted to him.

43   The statement of reasons included the following:

"I am further satisfied that the area applied for is reasonable for the intended purposes.

• The lease width of 200 metres provides future flexibility for the applicant to implement engineering measures for any required and approved upgrades of Helilog

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Road to facilitate access to Mining Lease ML 6M/2008 site during assessment and potential construction of the proposed Tailings Storage Facility (TSF). The applicant is required to undertake works within the adjoining Mining Lease ML 6M/2008 to ascertain the suitability of the site for a proposed TSF. The application area provides the applicant with the security of access and control of the access route to allow for the effective and efficient undertaking of mining operations to be conducted under the permissions of that lease.

If found to be a suitable site, the proposed TSF will provide for the long-term operational viability of the Rosebery Mine. The Rosebery Mine is one of Tasmania's longest running, having recently celebrated 85 years of continuous operation. Over that time, the mine has contributed significant royalty payments and fees to the Government and has continuously supported the socioeconomic fabric of the west coast of Tasmania.

In 2020, Rosebery produced 67 393 tonnes of zinc in zinc concentrate, I 510 tonnes of copper in concentrate, 38 061 tonnes of lead in concentrate, in addition to I 0 636 ounces of gold and 6 137 ounces of silver. There is a significant level of value-adding within the State with the zinc concentrate being treated at Nyrstar's zinc smelter in Hobart, and the refined product transported by TasRail to the Burnie Port.

This lease will facilitate access to the applicant's current preferred TSF site at South Marionoak on Mining Lease ML 6M/2008. The proposed South Marionoak TSF would provide approximately 25 000 000m³ of tailings storage to allow continued operation of the mine once the two existing TSFs (Bobadil and 2/5 Dam) reach capacity. The company states the South Marionoak TSF would provide the Rosebery Mine with a tailings storage capacity to support an anticipated mine lifespan of around 42 years, based on current tailings production rates.

The Proposed South Marionoak TSF will facilitate ongoing operation of the Rosebery

Mine on the adjacent Mining Lease ML 28M/ I 993.

I have found no compelling reason not to grant this lease Application.

Upon consideration of the above material, and upon making the findings set out above,
I decided to exercise my discretion to grant the application."

44           Two affidavits sworn by the Minister were relied upon by the respondents at the trial. The first was an affidavit of discovery. The second was an affidavit that he was required to provide as a result of a pre-trial order, which simply identified every document that he had sighted in relation to the application for the mining lease. He did not swear any other affidavits or give any oral evidence. There was no evidence before me as to what he did, what he thought, or how long he spent in considering MMG's application, apart from the evidence that he adopted the statement of reasons.

45           The applicants bear the onus of establishing on the balance of probabilities that the Minister did not engage in "an active intellectual process in determining whether or not to exercise his power": Carrascalo v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352 at [35]. As was said in that case at [48], such a finding will not be lightly made.

46           The fact that the Minister decided on 21 January 2022 to delay the making of a decision weighs against a finding that he simply approved the recommendation of the Director of Mines without considering it. There is simply no evidence that he failed to engage in the active intellectual process required by law. The submissions of the applicants in relation to this point must therefore fail.

"Security of access and control"

47           The applicants contend that "security of access" and "control of the access route", which were referred to by the Minister in his statement of reasons, were irrelevant considerations, and that he was not entitled to have regard to them when deciding whether to grant a lease under s 106.

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48 The Act does not list considerations that are to be taken into account in the granting of mining leases in general or s 106 leases in particular. Significantly, there is nothing in the Act that forbids any particular matters from being taken into account.

49           In its application for a s 106 lease, MMG said that the lease was "primarily being sought to allow secure, safe access to an existing Mining Lease 6M/2008". It also said that its reasons for requesting a lease for a term of four years were to "ensure ongoing, secure, authorised access to Mining Lease 6M/2008".

50           As the Director of Mines pointed out in his two minutes of January 2022, the granting of the lease was expected to facilitate upgrades of Helilog Road by MMG and to give it access rights that would have to be honoured by Forestry Tasmania. Those considerations were plainly matters that weighed in favour of granting the lease that MMG had applied for. Since the legislation did not fetter the Minister's discretion to grant such a lease, it cannot be said that they were irrelevant considerations. The applicants' submissions as to this issue must be rejected.

Thwarting protest activity

51          The applicants and others had been conducting protests against MMG's proposed tailings dam along Helilog Road during 2021 and early 2022. The third applicant, Mr Jordan, had spent about 90 nights there and had visited the site on about 20 occasions in connection with protest activities. The applicants contend that one factor, perhaps the only factor, taken into account by the Minister was a desire to thwart protest activity on Helilog Road, and that he thereby took into account an irrelevant consideration and improperly exercised his power to grant a mining lease.

52           One could certainly interpret the words "security of access and control of the access route" in the Minister's statement of reasons as referring, at least in part, to the prevention of inconvenient protest activity along Helilog Road. For the purposes of this decision I will assume, without deciding, that the Minister had such an objective in mind.

53           Once again, it is significant that the Minister's discretion to grant a s 106 lease was not fettered in any way by the legislation. Members of the public have a right to protest. However the Minister was not obliged to prefer the interests of protesters to those of MMG. It was open to him to conclude that protest activity was likely to interfere with the use of Helilog Road by MMG, and to take that possibility into account in deciding whether to grant it a lease over Helilog Road. The applicants' contentions in relation to this issue must therefore be rejected.

Unreasonableness

54 By virtue of ss 17(2)(e) and 20(g) of the Judicial Review Act, "an exercise of power that is so unreasonable that no reasonable person could so exercise the power" constitutes an improper exercise of a power conferred by an enactment. A decision that is unreasonable to that degree is of no effect because it is not a decision authorised by the legislation conferring power on the decision-maker: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. The applicants contend that the Minister's decision to grant the mining lease was so unreasonable that no reasonable person could have made such a decision.

55           In their written outline of submissions, the applicants' solicitors submitted that the decision "lacks a rational or logical foundation such that the decision is one that no rational or logical decision- maker could reach".

56           I reject that submission. The matters referred to in the statement of reasons in relation to the possible upgrading of Helilog Road and the reduction of the rights of Forestry Tasmania in relation to that road, quite apart from any other considerations, provide a rational basis for the Minister's decision.

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As a matter of law it was open to the Minister to give those considerations priority over environmental considerations. The submissions as to unreasonableness must therefore fail.

Conclusion

57   None of the applicants' arguments have succeeded. Their application is dismissed.