Dare, Bilney v Kelaray Pty Ltd, Premier of South Australia

Supreme Court of South Australia
(Civil)
DARE, BILNEY & ORS v KELARAY PTY LTD, PREMIER OF SOUTH AUSTRALIA
[2022] SASC 91
Judgment of the Honourable Chief Justice Kourakis
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION - SOUTH AUSTRALIA
The First Applicant is an elder of the Barngarla people and the Second Applicant is a member of the Barngarla Determination Aboriginal Corporation, the Third Applicant. Pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA), any person without the authority of the Minister is prohibited from damaging, disturbing or interfering with any Aboriginal site, damaging any Aboriginal object or disturbing or interfering with any Aboriginal object or remains which are found.
The Applicants make an application for judicial review against a decision of the Premier of South Australia who authorised the First Respondent, its agents and assignees, to damage or interfere with any Aboriginal site, object or remains in connection with exploration activity on Lake Torrens (the determination).
The Applicants seek to set aside the determination on the grounds that the Second Respondent:
a) erred in placing any weight on the prospect of the First Respondent placing any weight on the 'expectations' set out in the determination letter.
b) imposed conditions which were not valid and failed to impose additional conditions.
c) failed to take relevant considerations into account and took irrelevant considerations into account.
d) improperly delegated the statutory power to grant authorisations under s 23 to the First Respondent.
e) applied the determination to an excessively wide class of persons.
f) applied the determination to an excessively wide class of items.
g) misdirected himself and/or acted ultra vires by relying on the First Respondent's Chance Find Procedure.
Held, per Kourakis CJ, allowing the application for judicial review:
a) While a request that a grantee meet certain expectations without conditioning the authority on those expectations is unusual, the evidence does not suggest that the expectations were so critical to ensuring proper safeguards, or the confidence of the Second Respondent so misplaced that the grant of the authorisation is manifestly unreasonable.
b) This is a case where the determination falls within the scope of reasonable decisions and it was not manifestly irrational for the Second Applicant to impose the conditions it did and not to impose stricter conditions.
c) Nor was it inappropriate for the Second Applicant to take into account the considerations that it did and there was not a failure to take into account relevant considerations.
d) There was no improper delegation as the grant of the authorisation operates as a factum denying an element of the offence constituted by s 23 of the Aboriginal Heritage Act, which is not a delegation.
e) Following Starkey & Ors v The State of South Australia [2011] 111 SASR 537, the grounds of excessively wide class of persons and excessively wide class of items must fail.
f) The First Respondent’s Chance Find Procedure is inconsistent with ss 20 and 23 of the Aboriginal Heritage Act 1988 (SA) and the failure to impose conditions which allow the statutory scheme of protection of Aboriginal heritage to operate effectively results in the invalidity of the authority.
Aboriginal Heritage Act 1988 (SA) ss 2(b), 3, 4(a), 5, 5(1)(b), 6(3), 7, 8, 8(1)(a), 9, 9(2), 10, 11(a), 11(b), 12, 12(2)(b), 12(4)(a), 13, 13(2), 14, 14(1), 14(2), 16, 17, 19H, 19J, 20, 20(2), 20(3), 22, 22(1), 23, 24, 24(1), 29, 36, 43, 45; Legislation Interpretation Act 2021 (SA) s 40, referred to.
Starkey & Ors v The State of South Australia [2011] 111 SASR 537; Minister for Aboriginal Heritage v Peko-Wallsend (1986) 162 CLR 24, applied.
Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, discussed.
Anderson v Director General of the Department of Environmental and Climate Change [2008] 163 LGERA 400; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713, considered.

DARE, BILNEY & ORS v KELARAY PTY LTD, PREMIER OF SOUTH AUSTRALIA
[2022] SASC 91
Civil
KOURAKIS CJ:

This is an application for judicial review of a decision made by the second respondent, the responsible Minister, to grant an authorisation to the first respondent pursuant to section 23 of the Aboriginal Heritage Act 1988 (SA) (the Aboriginal Heritage Act). Section 23 prohibits any person, without the authority of the Minister, damaging, disturbing or interfering with any Aboriginal site, damaging any Aboriginal object, or disturbing or interfering with any Aboriginal object or remains which are found. The offence is punishable by a substantial fine and in the case of natural persons, by imprisonment for up to six months. The Minister charged with the administration of the Aboriginal Heritage Act at the relevant time was the Premier.
The first respondent (Kelaray) made an application to the Department of the Premier and Cabinet (DPC) for an authorisation pursuant to s 23 of the Aboriginal Heritage Act in anticipation of exploration activity it proposed to undertake on Lake Torrens. The program included drilling in excess of 1,000 holes and the construction of a campsite and a number of working sites (Exploration Program).
Kelaray’s application did not seek permission to damage or interfere with any particular or identified Aboriginal objects or remains. It sought instead a general authority to disturb or interfere with any Aboriginal sites, objects or remains in the course of its proposed exploration program.
In June 2020, the DPC embarked on a consultation program and provided a consultation information pack to consultees including the first applicant (Mr Dare) who is an elder of the Barngarla people, the second applicant Mr Bilney, who is a member of Barngarla Determination Aboriginal Corporation (BDAC), the third applicant. BDAC provided a submission on behalf of the Barngarla people opposing the grant of an authority. On 29 December 2020 the Premier authorised any conduct damaging or interfering with Aboriginal sites or objects ‘in the course of undertaking the Exploration Program, as described in the consultation information package’ (the determination). The determination expressly authorises Kelaray, its agents and assignees, to damage or interfere with any Aboriginal site, Aboriginal object or Aboriginal remains subject to certain conditions.
The applicants seek to set aside the Minister’s determination on the grounds (in summary) that the Minister:
a.erred in placing any weight on the prospect that Kelaray would meet the ‘expectations’ which the Minister had set out in a letter informing Kelaray of his determination but which were not expressed to be conditions of the authorisation (the expectation ground);
b.erred in imposing conditions which were not valid and in failing to impose additional conditions (the conditions grounds);
c.failed to take relevant considerations into account and took irrelevant considerations into account (the considerations grounds);
d.improperly delegated the statutory power to grant authorisations under s 23 to Kelaray (or others), gave an impermissible blanket authorisation to damage or interfere with Aboriginal sites, objects and remains or made a decision which was otherwise legally unreasonable in granting a general authority (the delegation ground);
e.authorised an impermissibly wide class of persons to damage or interfere with Aboriginal sites, objects or remains (the excessively wide class of persons ground);
f.invalidly authorised damage to, and interference with, an unlimited and indefinite class of items of Aboriginal heritage (the excessively wide items ground).
g.misdirected himself and/or acted ultra vires by relying on Kelaray’s Chance Find Procedures (CFP) which is part of its cultural heritage management plan to protect Aboriginal sites objects and remains (the Kelaray heritage plan ground).
A request that a grantee of an authorisation meet certain expectations, which are not conditions of the grant, is, at the very least, unorthodox and, generally, inutile. If the Minister’s expectation that Kelaray would do as he asked had played a material part in his decision to authorise conduct which would otherwise be an offence, then, in the ordinary course, the standards he expected Kelaray to observe should have been imposed as conditions on the grant of authority. If the expectations were no more than a hope that Kelaray would exceed the minimum standards the reference to them in the letter in which the authorisation is given is, at best, surplusage and probably confusing. The inclusion of the expectations also suggests some over-confidence in the persuasive force of the Minister’s moral authority which could erroneously induce an authorisation. However, the evidence does not show that to be the case nor is the failure to include the expectations as conditions manifestly irrational. There may be cases in which the material shows that the ‘expectation’ of an applicant is so critical to ensuring proper safeguards, and the confidence of the Minister so misplaced, that the grant authorisation is manifestly unreasonable but that is not this case. The expectation ground must fail.
Nor have the applicants shown that it was manifestly irrational to impose the conditions which were imposed and not to impose the stricter conditions for which they contend. The balancing of the protection of Aboriginal heritage against the economic development of the State is a matter of high government policy on which considerable deference must be accorded to the responsible Minister. Where the determination falls within the realm of decisions which might reasonably be taken, the Minister is accountable only to Parliament. That is this case. The conditions ground is not made out.
Nor does the evidence show that the Minister failed to take into account mandatory relevant considerations or that he took into account irrelevant considerations. The considerations grounds too must fail.
The grant of an authorisation operates as a factum denying an element of the offence constituted by s 23 of the Aboriginal Heritage Act. It is not a delegation. The delegation ground must be dismissed.
The excessively wide class of person and excessively wide items grounds have been decided adversely to the applicants by Full Court authority by which I am bound and with which I respectfully agree. They must be dismissed.
I would set aside the authorisation on the Kelaray heritage plan ground.
The breadth of the authorisation to damage, interfere or disturb Aboriginal sites, objects and remains allowed by the CFP subverts the statutory requirement of s 20 of the Aboriginal Heritage Act that any proposed action in relation to a particular object or site be brought to the Minister’s attention as soon as practicable after its discovery so that the Minister may consider whether or not, and how, to best protect items of Aboriginal heritage. The authority granted by the determination is conditional on adherence to Kelaray’s Cultural Heritage Management Plan (CHMP) including its CFP, but the CFP allows interference with an object or site in accordance with the advice of expert anthropologists or Aboriginal representatives of its choice before the Minister is notified. The terms of the authorisation thereby substantially detract from the efficacy of the obligation imposed by s 20 of the Aboriginal Heritage Act by denying the Minister any practical opportunity to give a direction pursuant to s 20 of the Aboriginal Heritage Act before the object or site is interfered with. The power to grant an authorisation pursuant to s 23 of the Aboriginal Heritage Act is limited by the other provisions of the Act such that it does not empower the Minister to grant an authorisation which is inconsistent with s 20 of the Aboriginal Heritage Act. The authorisation granted in this case is inconsistent with s 20 because it detracts from the practical legal operation of that section.
The Aboriginal Heritage Act
Section 23 of the Aboriginal Heritage Act provides:
23—Damage etc to sites, objects or remains
A person must not, without the authority of the Minister—
(a)     damage, disturb or interfere with any Aboriginal site; or
(b)     damage any Aboriginal object; or
(c)     where any Aboriginal object or remains are found—
(i) disturb or interfere with the object or remains; or
(ii) remove the object or remains.
Maximum penalty:
(a)     in the case of a body corporate—$50 000;
(b)     in any other case—$10 000 or imprisonment for 6 months.
An Aboriginal site or object is defined by s 3 of the Aboriginal Heritage Act as a site or object which is of significance according to Aboriginal tradition or is significant to Aboriginal archaeology, anthropology or history.
Properly construed, the offence enacted by s 23 of the Aboriginal Heritage Act carries with it the mental element of an intention to damage, disturb, remove or interfere with (collectively to interfere) a site, object or remains which whether, known to the respondent or not, is, in fact, a site object or remains as defined (collectively an item of Aboriginal heritage). The manifest purpose of s 23 of the Aboriginal Heritage Act would be largely undermined if, knowledge that the item was significant according to Aboriginal tradition or archaeology, was a mental element of the offence it enacts. On the other hand, the defence of reasonable mistake may consistently, with the purposes of the Aboriginal Heritage Act, be available to persons who take reasonable steps to ascertain whether land or an object with which they propose to interfere is an item of Aboriginal heritage.
For conduct which would otherwise be an offence, the term ‘without authority’ exempts conduct which is authorised by the Minister.
The functions conferred on the Minister by s 5 of the Aboriginal Heritage Act include taking such measures as are practicable to protect and preserve items of Aboriginal heritage. In carrying out that function the Minister must consider any relevant recommendations of the Aboriginal Heritage Committee (the Committee) constituted by s 7 of the Aboriginal Heritage Act. The functions of the Committee include giving advice to the Minister, whether requested or not, on measures that should be taken to protect Aboriginal heritage.
Section 9 requires the Minister to keep central archives relating to Aboriginal heritage. The archives include the Register of Aboriginal Sites and Objects which must contain particulars sufficient to enable ready identification of items determined by the Minister to be items of Aboriginal heritage.[1] Section 9(2) of the Aboriginal Heritage Act expressly mandates the keeping of the Register and by necessary implication therefore empowers the Minister to make a determination that an item is an item of Aboriginal heritage.
[1] The Register thereby provides a facility for persons in doubt about whether an object or site remains are an item of Aboriginal heritage.
Section 10 provides that the archives are confidential unless the traditional owners consent or the Minister makes information available pursuant to an application under s 12 of the Aboriginal Heritage Act. A site or object entered onto the Register is conclusively presumed by s 11(a) of the Aboriginal Heritage Act to be an Aboriginal site or object and conversely a site or object is conclusively presumed by s 11(b) not to be an Aboriginal site or object if the Minister has made a determination that it should not be entered on the Register.
It is necessary to place the operation of s 23 in its statutory context.
Sections 13 and 14 of the Aboriginal Heritage Act regulate the giving of the authorisations or the making of a determination by the Minister[2] in accordance with the provisions of the Aboriginal Heritage Act.
[2] The sections of the Aboriginal Heritage Act which provide for the Minister to grant an authorisation or make a determination include: ss 13, 14, 16, 17, 19H, 19J, 22, 29, 36, 43, 45.
Sections 13 and 14 of the Aboriginal Heritage Act relevantly provide:
13—Consultation on determinations, authorisations and regulations
(1) The Minister must—
(a) before making a determination under this Act; or
(b) before giving an authorisation under this Act; or
(c)before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object,
take all reasonable steps to consult with—
(d) the Committee; and
(e) any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and
(f) any—
(i) traditional owners; and
(ii) other Aboriginal persons,
who, in the opinion of the Minister, have a particular interest in the matter.
(2) When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.
Three matters of present importance may be noted. First, s 13 of the Aboriginal Heritage Act requires the Minister to take all reasonable steps to engage in extensive consultation with the Committee constituted by s 7 of the Aboriginal Heritage Act, the traditional owners, other Aboriginal people and Aboriginal organisations. The Committee comprises appointees of the Minister drawn as far as is practicable from all parts of the State to represent the interests of Aboriginal people in the preservation of Aboriginal heritage.
Secondly, s 13(2) of the Aboriginal Heritage Act requires the Minister to accept the views of the traditional owners of land or an object on whether it is of significance. That subsection is problematic because it does not stipulate the forum through which those views are to be communicated and does not provide a mechanism for resolving any differing views on the question of significance. Those inherent difficulties in determining the traditional significance of land or objects support the conclusion that knowledge that land or an object is an item of Aboriginal heritage, is not an element of the offence enacted by s 23 of the Aboriginal Heritage Act.
Thirdly, notwithstanding the uncertainty on the form which the consultation must take, s 13(2) requires the Minister to take steps to ascertain the views of traditional owners when determining whether an item is one of Aboriginal heritage for the purposes of s 9 of the Aboriginal Heritage Act, including when a discovery of a suspected item of Aboriginal heritage is reported to the Minister.
14—Authorisations subject to conditions
(1)An authorisation may be given by the Minister under this Act on such conditions as the Minister considers appropriate.
(2)A person who, without reasonable excuse, contravenes or fails to comply with a condition of an authorisation under this Act is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in any other case—$10 000 or imprisonment for 6 months.
Section 14 of the Aboriginal Heritage Act creates an offence of contravening a condition imposed by the Minister. Accordingly, when an authorisation is given to engage in conduct which would otherwise be an offence against s 23 of the Aboriginal Heritage Act, a person who breaches a condition of that authorisation may nonetheless be convicted of an offence against s 14(2) of the Aboriginal Heritage Act. Section 14(2) of the Aboriginal Heritage Act underlines the inutility to which I earlier referred of a decision to rely on unenforceable expectations instead of imposing conditions.

Section 12 provides that an application may be made to the Minister by persons proposing to take action in relation to a particular object or area to discover whether an object is, or is not, on the Register.
12—Determination of whether site or object is an Aboriginal site or object
(1)If a person proposes to take action in relation to a particular object and that action may constitute an offence against this Act if the object is an Aboriginal object, the person may apply to the Minister under this section.
(2)On an application under subsection (1), the Minister must—
(a) if the object is entered in the Register of Aboriginal Sites and Objects, give the applicant written notice that it is so entered;
(b) if the object is not entered in the Register, determine whether it should be so entered and give the applicant written notice of the determination.
(3)If a person proposes to take action in relation to a particular area and that action may constitute an offence against this Act if the area is, is part of or includes an Aboriginal site or if an Aboriginal object is located in the area, the person may apply to the Minister under this section.
(4)On an application under subsection (3), the Minister must—
(a) determine whether any entries should be made in the Register of Aboriginal Sites and Objects in relation to sites or objects in the area that are not so entered and give the applicant written notice of the determination; or
(b) subject to subsection (5), give the applicant written notice of the location of each Aboriginal site or object in the area that is entered, or that the Minister has determined should be entered, in the Register.
(5)The Minister must not disclose the exact location of a site or object if, in the Minister's opinion, the disclosure is likely to be detrimental to the protection or preservation of the site or object or to be in contravention of Aboriginal tradition.
(6)The Minister may, within 20 working days after receiving an application, require an applicant to provide information in connection with the application or to engage an expert acceptable to the Minister to do so.
(7)Where the Minister requires information to be provided under subsection (6), the Minister must determine the application within 30 working days of receiving that information.
(8)The Minister may refuse to entertain an application under this section on the grounds—
(a) that the area or object is insufficiently identified; or
(b)that the application is not genuine; or
(c)that the Minister does not have the resources to determine the application.
I observe first that subsections 2(b) and (4)(a) require the Minister to make a determination when a discovery is reported by a person who proposes action so that that person may proceed with certainty, but it is not the source of the power to do so. An item may be determined to be one of Aboriginal heritage no matter how, or through whom, its existence comes to the Minister’s attention. It can be expected that many items will be brought to the Minister’s attention by Aboriginal persons who do not propose to interfere with them. The power to determine that those items are of Aboriginal heritage is to be found in ss 5 and 9 of the Aboriginal Heritage Act.
Secondly, it should be noted that s 12 does not require the application to be made. It facilitates the provisions of information which may provide greater certainty about the possible consequences of conduct in which a person proposes to engage. That facility is yet another indication that knowledge that an object is an item of Aboriginal heritage is not an element of an offence against s 23 of the Aboriginal Heritage Act because it provides a means for persons acting reasonably to avoid committing the offence. However, the provision is also a critical element in the protection of Aboriginal heritage because it both incentivises the notification of items of possible Aboriginal heritage and empowers the Minister to take action to protect it. It promotes the making of a decision on whether an item is of significance by the Minister who has access to elders with cultural knowledge and anthropological expertise, instead of by those who may be afflicted by ignorance, self interest or both.
The facility provided by s 12 of the Aboriginal Heritage Act and a request for an authorisation which would exempt conduct from s 23 are closely connected. Plainly, if the Minister determines not to enter a site or object on the Register, then no authorisation is required under s 23 of the Aboriginal Heritage Act because the site or object is conclusively deemed by s 11(b) not to be an item of Aboriginal heritage. On the other hand, if the object or site is entered onto the Register then a person who makes a s 12 application, and is so informed, will commit an offence against s 23 of the Aboriginal Heritage Act if he or she interferes with the item of Aboriginal heritage without first obtaining an authorisation. In making a determination whether to grant an authorisation, the Minister is required to consider any recommendation of the Committee and in the former case, is bound by s 13(2) of the Aboriginal Heritage Act to accept the views of the traditional owners of the land or object.
Private land is defined by s 3 of the Aboriginal Heritage Act to include a mining tenement. An owner of private land who finds on that land an Aboriginal site, object or remains and does not as soon as practicable report the discovery to the Minister commits an offence against s 20 of the Aboriginal Heritage Act:
20—Discovery of sites, objects or remains
(1)     An owner or occupier of private land, or an employee or agent of such an owner or occupier, who discovers on the land—
(a) an Aboriginal site; or
(b) an Aboriginal object or remains,
must, as soon as practicable, report the discovery to the Minister giving particulars of the nature and location of the site, object or remains.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in any other case—$10 000 or imprisonment for 6 months.
(2)     This section does not apply to the traditional owner of the site or object or to an employee or agent of the traditional owner.
(3)     The Minister may direct a person making a report to take such immediate action for the protection or preservation of the remains as the Minister considers appropriate.
(4)     A person must not, without reasonable excuse, fail to comply with a direction of the Minister under this section.
Maximum penalty: $2 000 or imprisonment for 3 months.
Again, on a proper construction of s 20 it is not an element of the offence that the owner knows that the site or object is significant according to Aboriginal traditions or to Aboriginal archaeology, anthropology or history, or that the remains are of an Aboriginal person. The offence will be committed if the site, object or remains is, in fact, an Aboriginal site, object or remains whether or not the finder knew it to be so. This provision too has the purpose of protecting items of Aboriginal heritage by encouraging persons to bring their discoveries to the attention of the Minister who may then consult the traditional Aboriginal owners, his departmental officers and other persons with the appropriate expertise to determine whether the site or object is an item of Aboriginal heritage as defined and give direction to preserve it if appropriate. If knowledge that the site or object is an item of Aboriginal heritage were an element of the offence, that purpose would be defeated. Again, a defence of reasonable mistake of fact may nonetheless be available consistently with the manifest purpose of the section to encourage reports to the Minister. Importantly s 20 of the Aboriginal Heritage Act does not in terms empower the Minister to dispense with the obligations the section imposes on owners of land including mining tenements.
In large measure, the effectiveness of s 20 of the Aboriginal Heritage Act in protecting Aboriginal heritage is dependent on its joint operation with s 23. A person who discovers an item of Aboriginal heritage, which he or she has no reason to believe is not such an item, is required by s 20 to report the discovery to the Minister. The finder is also prohibited by s 23 from interfering with it unless and until the Minister authorises that interference. An authority granted pursuant to s 23 which authorises interference before the Minister has had an opportunity to consider the exercise of his s 20 power substantially reduces that protection. An authorisation of the kind mentioned in the preceding sentence would detract from the practical legal operation of s 20 of the Aboriginal Heritage Act.
The application
In February 2020, Kelaray made an application to the Premier, in his capacity as the Minister charged with the administration of the Aboriginal Heritage Act, for an authorisation under s 23 of that Act to ‘authorise damage, disturbance and/or interference with Aboriginal sites, objects and/or remains that may occur as a result of the Exploration Program activities’ (the authorisation application). The authorisation application was made over those areas of two exploration licences, the West Lake Torrens exploration licence and the Murdie exploration licence, within the area of Lake Torrens, and Andamooka Island and an area 500 metres inland from the shoreline of Lake Torrens. Lake Torrens measures approximately 240 kms in length and averages 30 kms in width. The surface of the lake is typically dry. The authorisation application included an area which falls within an entry in the central archive numbered 6436-7237. The entry encompasses the entirety of Lake Torrens and includes a 500 metre wide area inland from its shoreline. The area is recorded in the central archive as a site of significance relating to anthropological creation stories which are restricted to men only. It can therefore readily be appreciated that it was necessary for Kelaray to make the application because the Exploration Program would inevitably disturb and interfere with the site itself. In respect of the site, the Minister had before him the information on which to consult and ultimately exercised his discretion in respect of the granting of the authority. As we shall see, it is in respect of the known probability that Aboriginal objects and remains, the significance of which was still unknown, that the grant of the authorisation to damage any object was problematic in the face of s 20 of the Aboriginal Heritage Act.
The application area measures 793.6 kilometres squared. The activities proposed to be undertaken within the application area are: infill surveys, deep diamond exploration drilling, upgrading the existing access tracks, creation of new access tracks, drilling for water bores, construction of a new exploration camp on Andamooka Island, vegetation clearing, and the construction of multiple access points.
It is proposed to conduct those activities across three program areas namely:
(a)The area of the Lake Torrens extending up to 500 metres from the lake’s shoreline towards the middle of the lake:
(b)All areas of the Lake Torrens lake bed that are more than 500 metres from the Lake Torrens shoreline including Murdie Island and any other smaller islands on the lake;
(c)The area of land extending 500 metres inland from the lake’s shoreline and the southern portion of Andamooka Island.
The authorisation application did not identify any particular Aboriginal site, remain or object in respect of which authorisation was sought other than by reference to the central archive site 6436-7237. The authorisation application provided information concerning heritage surveys, and consultation with relevant Aboriginal people. However, Kelaray did not seek the views of the Barngarla people.
On 17 June 2020 DPC sent an email to BDAC and to its chairperson Mr Bilney inviting BDAC to participate in a public consultation process. The letter enclosed a bundle of documents entitled Consultation Information Package. BDAC provided a response on 21 August 2020.
In mid-June 2020 the DPC requested BDAC’s solicitors to provide the Consultation Information Package to Mr Dare, Mr Bilney and to all BDAC Board members. The Consultation Information Package and Kelaray’s CHMP were part of the materials before the Minister when he made the decision.
Kelaray’s application included the following assurance on how it would deal with the protection of Aboriginal heritage:
12.5In addition to any other measures, internal protocols will be put in place requiring personnel to:
(a)     report to management, the discovery of previously unidentified:
(i)remains; and
(ii)artefacts which are, or are suspected to be, of archaeological or cultural significance,
(Chance Finds); and
(b)     cease activities in the vicinity of Chance Finds which could damage, destroy or interfere with Chance Finds;
(c)     comply with legislative requirements in relation to the discovery of human remains.
On 29 December 2020 the Minister determined Kelaray’s application and granted an authorisation pursuant to s 23 of the Aboriginal Heritage Act. The geographical area, the subject of the authorisation, is substantially the same as the application area. The Premier informed Kelaray of the grant of the authorisation on the same day. The Minister provided a statement of reasons for his decision by letter dated 22 February 2021. Drilling pursuant to the authorisation commenced on about 22 March 2021.
The determination of the Minister is recorded at the foot of a Minute from the Chief Executive Officer of DPC. Attached to the Minute was a long and extensive report on Kelaray’s application prepared by Aboriginal Affairs and Reconciliation (AAR). The report summarised the results of its consultations on the application. The purpose of the Minute is stated to be whether ‘to grant Mr Lindsay Owler for and on behalf of Kelaray Pty Ltd (Applicant), an authorisation under the Aboriginal Heritage Act 1988 (SA)’. The Minute records that Kelaray proposes to target iron oxide and copper-gold mineralisation within its exploration licences and that its program had the potential to create significant economic benefits for the State.
The Minute also records that Lake Torrens is a single large Aboriginal site recorded on the central archives, but that no native title had yet been declared over it. It informed the Minister that the Adnyamathanha, Anangu Pitjantjatjara Yankunytjatjara, Arabana, Barngarla, Kokatha and Kuyani people all attest to the spiritual importance and archaeological significance of Lake Torrens. It records that ancestral remains are likely to be buried in places around the perimeter of the lake and its islands. The Minute refers to Kelaray’s Cultural Heritage Management Plan and its ‘Chance Find Procedure’ and records Kelaray’s ‘commitment’ to consulting with the Kokatha Aboriginal Corporation (KAC) which holds the native title rights and interest on land adjacent to the application area. It records that the AAR completed consultations on the application on the Minister’s behalf and that on 10 September 2020 the Committee had resolved to oppose the application on the grounds that:
·Lake Torrens is a key Aboriginal cultural site of great importance to many Aboriginal language groups.
·The overwhelming majority of consultees were opposed to the program because of its anticipated impacts to heritage and culture; and
·The minimal support expressed by consultees.
The Minute informed the Premier that the Committee had requested that if, notwithstanding its advice, the Premier proposed to grant the authorisation that the Premier seek further advice from the Committee.
AAR also recommended that the authorisation not be granted, noting that:
·The Minister’s functions under the Act included taking such measures ‘as are practicable for the protection and preservation of Aboriginal Sites’.
·The damage the program was likely to cause the anthropological values of Lake Torrens.
·The overwhelming opposition to the program.
·The Committee’s opposition to the program.
·The potential risk to archaeological heritage.
·The asserted personal impacts to Aboriginal people.
The Minute concludes by setting out the following options for the Minister’s consideration:
1.Form the opinion there has been reasonable consultation about the ‘Lake Torrens Murdie Exploration Program’ (Program) under section 13 of the Aboriginal Heritage Act 1988 (SA) (Act), as evidenced by the report at Appendix A and the certification of the Crown Solicitor at Appendix B.
2.Decide not to grant the Applicant authorisation for the Program under section 23 of the Act in light of your functions under the Act, the likely damage to the Lake Torrens Aboriginal site (6436-7237) by the Program, the strong opposition expressed by most consultees, and the advice of the State Aboriginal Heritage Committee.
3.If you decide not to grant the authorisation, inform consultees of that decision by signing and sending the draft letters at Appendix D.
4.If you decide to grant the authorisation, sign the Premier’s authorisation instrument at Appendix C, subject to the conditions specified therein.
5. If you decide to grant the authorisation, inform consultees of that decision by signing and sending the draft letters at Appendix E.
6.If you decide to grant the authorisation, write to the Committee to advise it of the reasons your decision notwithstanding its advice.
The Minister marked the Minute to indicate that he had formed the opinion set out in the first option and, approved the fourth to sixth recommendations. The Minister then subscribed to the Minute.
The Minister also executed the instrument of authorisation attached as Appendix C to the Minute. That instrument, in accordance with the Minister’s approval, recites that an application was made by Mr Owler for and on behalf of Kelaray and attaches a map of the authorisation area. It records that the Minister considered:
·the application and the submissions from a public consultation process.
·the applicant’s responses to those submissions.
·the advice of the Committee.
·the advice of the AAR.
·other relevant factors.
The instrument then grants Kelaray authorisation pursuant to s 23 of the Act ‘to conduct the Exploration Program’ within the Authorised Area.
The instrument permits Kelaray to:
·       Damage, disturb or interfere with any Aboriginal site
·       Damage any Aboriginal object
·       Where any Aboriginal object or remains are found
·Disturb or interfere with the objects or remains
·Remove the object or remains,
where reasonably necessary in the course of undertaking the Exploration Program, as described in the Consultation Information Package at Attachment 2.
The Applicant must nonetheless seek to minimise its impacts upon Aboriginal heritage during the Exploration Program wherever reasonably possible.
I interpolate here that the effect of the underlined sentence of the instrument is to limit the authority to interfere with items of Aboriginal heritage to those circumstances in which it is not reasonably possible to minimise the impact of the approved Exploration Program on those items of Aboriginal heritage. That is to say the limitation does not require Kelaray to pause or abandon any part of the Exploration Program which might interfere with the items; it requires no more than that whilst proceeding with its program it minimises the heritage impact where that is reasonably possible.
The authorisation is not limited to Kelaray. It extends to:
·       any person to whom the Applicant lawfully transfers or assigns the whole or part of its interests in any exploration authority (as defined in the Mining Act 1971 (SA)) that comprises or includes the whole or portion of the Authorisation Area (Permitted Assigns)
·       any directors, employees, servants and agents of the Applicant or its Permitted Assigns from time to time
·       any contractor or subcontractor engaged by or through the Applicant or its Permitted Assigns.

The legal effect of that extension is of course, to exempt the classes of persons so described from the scope of s 23 of the Aboriginal Heritage Act.
The authorisation is, relevantly to this application, expressly subjected to the following conditions pursuant to s 14 of the Aboriginal Heritage Act:
1.The Applicant must throughout the Exploration Program provide six-monthly progress reports documenting all ground disturbing works, and any Aboriginal heritage discoveries made or managed, within the Authorisation Area. The report must be provided to the nominated representatives of (together, the Aboriginal Parties):
·Adnyamathanha Traditional Lands Association RNTBC
·Anangu Pitjantjatjara Yankunytjatjara
·Adnyamathanha Yura Language and Heritage Association
·Barngarla Determination Aboriginal Corporation RNTBC
·Kokatha Aboriginal Corporation RNTBC
·Viliwarinha Yura Aboriginal Corporation
·the custodians listed on the site cards for the Lake Torrens Aboriginal Site, as advised by AAR.
At minimum, the six-monthly report must include:
·the anticipated timing, nature and location of current and future exploration drilling
·updates on the nature and status of camps and access tracks
·any proposed transitions to Phases B and/or C of the Exploration Program.
2.The Applicant must, at the end of the Exploration Program, offer to facilitate visits to the Authorisation Area for up to two representatives from each of the Aboriginal Parties to observe the results of the rehabilitation measures undertaken by the Applicant.
3.Any person or entity to whom the authorisation applies must comply with the Applicant’s ‘Chance Find Procedure’ relating to Aboriginal heritage discoveries (Applicant’s Procedure), which must not be inconsistent with AAR’s Aboriginal Heritage Discovery Protocols as appended to the authorisation instrument (AAR’s Protocols) (Attachment 3). In the event of any inconsistency between the Applicant’s Procedure and AAR’s Protocols, AAR’s Protocols must apply.
4.Any person or entity to whom the authorisation applies must comply with the Applicant’s Exploration Programs for Environment Protection and Rehabilitation relating to the Exploration Program, as may be lawfully amended or approved from time to time.
5.The Applicant and its Permitted Assigns must ensure that all personnel involved with ground disturbing activities associated with the Exploration Program undertake an appropriate induction that has been approved by AAR to ensure that they are aware of their obligations under the Aboriginal Heritage Act 1988 (SA) and the Coroners Act 2003 (SA), prior to taking part in these activities.
6. The Applicant and any person to whom this authorisation applies must not access the area known as Crombie Ridge during or as part of the Exploration Program, as that area is defined on the map at Attachment 1, save for showing the area on the ground to assist avoidance.
Kelaray’s CFP, referred to in condition 3, provides as follows:
Chance Find Procedure and Stop Work Directions
Stop Work Directions
In the event any employee, contractor or visitor coming across suspected Aboriginal heritage sites or objects, work in that area must immediately STOP and the Chance Finds Procedure instituted. If objects found resemble skeletal materials, the find will trigger the SA State ‘Remains Protocol’, a copy of which is held by the Project Manager.
Chance (new) Finds Procedure
Step 1 - For any work of a ground disturbing nature, a Land Disturbance Permit (LDP) must be issued by the Project Manager, based on environmental and heritage surveys of the land in question. A LDP does not necessarily mean that Aboriginal heritage sites or objects are not present, so personnel, particularly mobile plant operators, should be alert to the potential for Chance Finds.
Step 2 - In the event that suspected Aboriginal heritage sites or objects are found (a “Chance Find”), personnel must cease work at that location and immediately report the find to their direct supervisor.
Step 3 - The Supervisor must then establish an appropriate no-entry buffer zone around the Chance Find and report it within 24 hours to the Project Manager. The size of the buffer zone will depend on the nature of the find. A minimum buffer of 10m should be applied. For suspected remains or fragile archaeological sites or objects, a buffer of up to 50m may be appropriate. The supervisor must then record and report to the Argonaut CEO the following information: description of the find, photographs of the find, GPS coordinates, date and time of the find, details of the person who made the find, and the nature of the work that led to the find.
Step 4 - The Argonaut CEO will arrange for a Cultural Heritage Expert to visit the site and conduct investigations. Simultaneously, the CEO will inform any relevant Aboriginal group representatives and arrange appropriate Aboriginal custodial representation at the site.
Step 5 - If the Chance Find is determined by the Heritage Expert and/or any Aboriginal custodial representatives not to be Aboriginal sites or objects, works can proceed. Otherwise work will remain suspended and an official report, which will include recommended mitigation actions, will be prepared by the Heritage Expert. This report will be provided to the Argonaut CEO, AAR and Aboriginal parties.
Step 6 - The Argonaut CEO will oversee implementation of any mitigation actions and seek written clearance from AAR to proceed with works.
The flow chart over page outlines the Aboriginal heritage discovery protocol for dealing with the ‘chance finds’ discovery of Aboriginal sites and objects.
Set out below are AAR’s protocols with which the Chance Find Procedure must not be inconsistent:
For present purposes, it is sufficient to note that step 4 of the CFP requires Kelaray’s CEO in the event of a discovery of ‘suspected archaeological material’, to engage an expert of Kelaray’s choice and to inform such Aboriginal persons as he or she thinks appropriate, but does not require compliance with s 20 of the Aboriginal Heritage Act before work resumes. In particular, step 5 allows Kelaray to interfere with the Aboriginal site or object, before the Minister is notified of the discovery through AAR, if Kelaray’s chosen expert or Aboriginal representatives report that the items are not Aboriginal sites or objects. However, compliance with the obligation imposed by s 20 of the Aboriginal Heritage Act requires the discovery of the items to be reported to the Minister as soon as practicable after their discovery. The subsequent determinations of the expert and Aboriginal persons selected by Kelaray that the items are not Aboriginal objects could not provide a reasonable basis for believing that the objects were not items of Aboriginal heritage at the time of their discovery and during the ensuing period in which Kelaray was bound to report the discovery, before the advice of its experts was received. During that period Kelaray must have at least ‘suspected’ that the items were Aboriginal heritage because in accordance with its CFP governing ‘suspected archaeological items’, it will have called in an expert and Aboriginal representatives. It follows that it must also have been reasonably practical by that time to inform the Minister. However even though Kelaray may be prosecuted for an offence against s 20 of the Aboriginal Heritage Act, the authority granted to Kelaray pursuant to s 23 purports to immunise Kelaray from any prosecution for interfering with those objects.
If the objects are interfered with after the Aboriginal representatives or the experts advise that they are not items of Aboriginal heritage, no offence against s 23 will have been committed either because of the terms of the authority (if valid) or because that advice provides reasonable grounds to believe that the objects are not Aboriginal heritage. However, if the advice is mistaken, items of Aboriginal heritage may be compromised or destroyed when an early report to the Minister may have discovered the error. So too, much Aboriginal heritage may be compromised or cultural harm suffered if the interference sanctioned by the anthropologist is an affront to the Aboriginal people who are the custodians or otherwise responsible for those items. Irreparable loss of Aboriginal heritage may result if responsible government agencies and their Ministers are not informed of discoveries in a timely manner which allows them to exercise their protective powers before Aboriginal heritage is destroyed or interfered with.
The AAR Protocol does not fill the gap left by the CFP. On the contrary, if the objects are found by the expert anthropologists or Aboriginal representatives to be items of Aboriginal heritage, the AAR Protocol allows their removal before the Minister is informed. As we shall see, objects which are not said to be Aboriginal heritage are exposed to destruction. The AAR Protocol may respond to some observations made by Doyle CJ in Newchurch v The Minister for Aboriginal Affairs and Reconciliation (Newchurch)[3] that his Honour found it surprising that the authority granted in that case was not conditional on making a report of the discovery to the Minister. However, the timing of that notification and the interrelationship with s 20 of the Aboriginal Heritage Act was not an issue in that case.
[3] Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [136].
The authorisation was provided to Kelaray under cover of a letter from the Minister on 30 December 2020. It summarised the process in considering the application and set out the conditions. The Minister then set out certain expectations he had of Kelaray and encouraged Kelaray to take certain other actions.
I acknowledge that the Authorisation gives Kelaray authority to undertake works that will likely result in interference with the Lake Torrens Aboriginal Site. However, I expect Kelaray to honour its undertaking to ensure that its staff and contractors do not access areas of high cultural sensitivity especially on Andamooka Island, in addition to Crombie Ridge. Further, I expect Kelaray to minimise disturbance to Aboriginal heritage during the Exploration Program by complying with its own Ground Pressure Management Plan; using low-ground pressure drill rigs on the surface of the Lake Torrens; and otherwise ensuring disturbance to the shoreline and surface of Lake Torrens is minimised as far as practicable.
I also expect Kelaray to adhere to its Cultural Heritage Management Plan (CHMP) throughout the Exploration Program as your company has undertaken to do. To this end, Kelaray is required to ensure that any Aboriginal heritage discovered during the Exploration Program is recorded appropriately, reported to AAR, and stored or relocated in accordance with the wishes of Traditional Owners.
I further acknowledge that Kelaray’s E-PEPRs impose on it a range of requirements to ensure that any impacts to the authorisation area as a result of the Exploration Program are rehabilitated in accordance with the Mining Act 1971 (SA).
I ask Kelaray to consider Aboriginal employment wherever possible throughout the Exploration Program, and specifically to prioritise the employment of Traditional Owners. I also encourage Kelaray to consider engaging Aboriginal heritage monitors:
·nominated by Kokatha Aboriginal Corporation RNTBC (KAC) to observe initial ground disturbing works, including the preparation of drill pads, excavation of sumps and exploration drilling to a depth of 5 m, undertaken within those parts of the authorisation area that overlap KAC’s native title determination area.
·nominated by Adnyamathanha Traditional Lands Association RNTBC, Anangu Pitjantjatjara Yankunytjatjara, Adnyamathanha Yura Language and Heritage Association, Barngarla Determination Aboriginal Corporation RNTBC, KAC, Viliwarinha Yura Aboriginal Corporation and the listed custodians of the Lake Torrens Aboriginal Site (Aboriginal Parties), and any other relevant Traditional Owners, to observe initial ground-disturbing works, including the preparation of drill pads, excavation of sumps (where required) and exploration drilling to a depth of 5 m, undertaken on Andamooka Island.
I also encourage Kelaray to maintain a register of staff and contractors who access the authorisation area in connection with the Exploration Program and to make such a register available to AAR upon written request.
Lastly, I expect Kelaray to make reasonable efforts to engage and consult with the Aboriginal Parties, and any other relevant Traditional Owners, regarding approaches to minimising damage and disturbance to Aboriginal heritage that may be located within the authorisation area.
The expectations ground
The applicants’ submissions focus on the absence of any statutory basis for the expectations set out in the Premier’s letter to Kelaray, because they were not made conditions of the authorisation pursuant to s 14(1) of the Aboriginal Heritage Act. They point out that the expectations cannot be enforced, and contrast that with the legal effect of conditions which attract substantial penalties of breaches. The applicants contend that it can be inferred that the Minister granted the authorisations in the mistaken belief that Kelaray would be legally bound to comply with them. I reject that submission. The failure to include the ‘expectations’ with those conditions which were fixed, and the very use of words ‘expect’, shows that the Minister was alive to the difference and deliberately chose not to impose his expectations as conditions of the authorisation.
Secondly, the applicants submit that I should infer that the Minister would not have granted the authorisation if he believed that his expectations might be dashed. In this respect, they refer to the expectation that Kelaray would make reasonable efforts to engage relevant traditional owners which included the Barngarla people, when Kelaray did not consult them. However, what the Minister might or might not have done, if he had held a more realistic view of the likelihood of the expectations being met is not the relevant question. The relevant question is whether, objectively assessed, it was manifestly unreasonable to grant an authorisation, without including the expectations amongst the conditions on which the authorisation was granted. Having regard to the reporting required by the first condition, the compliance with the CFP required by the third condition, and the fact that the conditions which were imposed were those recommended by AAR, I cannot so conclude. For that reason, this ground is not made out.
The conditions ground
The first step in the applicants’ submissions on this ground is that the first two conditions are personal to Kelaray but the authorisation extends to persons to whom Kelaray assigns its exploration authority. However, those assignees are not bound to the first two conditions because they are in terms limited to ‘the Applicant’. That step can be taken. It is difficult to see why the first two conditions were not also imposed on Kelaray’s assignees in the same manner as the remaining conditions. Nonetheless, a failure on the part of the assignee to comply with the condition will leave Kelaray liable for its breach of the first two conditions on which the authorisation was granted even if Kelaray has assigned its exploration licence.
The applicants also contend that the authorisation is invalid because condition two is void. This is because the term ‘the end of the exploration program’ and the requirement that Kelaray facilitate visits to the authorisation area are legally uncertain. The applicants contend that condition four, too, requires compliance with an uncertain class of documents which may be amended from time to time.
The noun-phrase ‘end of the Exploration Program’ may require a qualitative judgement to be made on the evidence presented should an action be brought to enforce the condition, but it is a fact which is capable of determination. The phrase carries its ordinary meaning. Many judgements involve questions of fact and degree. Similarly, the words ‘offer’, ‘facilitate’, and ‘visit’ are common words, the ordinary meanings of which are well understood. They often appear in statutory and contractual contexts and are susceptible to factual determination.
The documents referred to in condition 4 are those documents which were before the Minister when the authorisation was given and may be identified by extraneous evidence. The phrase ‘lawfully amended or approved from time to time’ can only refer to variations to the conditions as approved by the Minister, from time to time.[4]
[4] Legislation Interpretation Act 2021 (SA), s 40.
The conditions ground – not included conditions
The applicants submit that the authorisation is invalid because of the absence of conditions requiring Kelaray to:
·Procure a survey or clearance of the authorisation area by any Barngarla people;
·Investigate or record the significance to Barngarla people of any Aboriginal sites, objects, or remains;
·In the alternative, procure monitoring of the exploration program by the Barngarla people;
·When undertaking activities, taking into account the significance to the Barngarla people of any Aboriginal sites or objects.
The condition which requires Kelaray and its assignees and agents to comply with its CFP (which must not be inconsistent with AAR’s Aboriginal heritage discovery protocols) ensures that a suitably qualified Aboriginal monitor or archaeologist will be consulted when objects or sites which are possibly items of Aboriginal heritage are discovered. It was, therefore, not manifestly unreasonable to omit the conditions for which the applicants contend. If it were unreasonable not to require consultation with the Barngarla people, it must also be unreasonable to not require consultation with the Kokatha, Anangu, Adnyamathanha, Pitjantjatjara Yankunytjatjara and the Viliwarinha Yura people. Ensuring that the consultation process on the significance of items of Aboriginal significance is reasonably practicable but also effective is a complex problem.
Subject to the challenge to the CFP on the ground of its inconsistency with s 20 of the Aboriginal Heritage Act the policy compromise struck by the Minister was not manifestly unreasonable.
The considerations ground
It can be accepted that the Minister is obliged to have regard to the potentially adverse consequences on Aboriginal heritage of the grant of an authorisation. The protection of Aboriginal heritage is, after all, the very object of the Act.
Before dealing with the applicants’ submissions it is as well to reprise the principles governing the identification of mandatory considerations and the nature and extent of an obligation to consider a relevant matter.
It is as well to start with the seminal judgment of Mason J, as his Honour then was, in Minister for Aboriginal Affairs v Peko-Wallsend:[5]
(a)     The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision.
…
(b)     What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statue expressly states the consideration to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms in unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found 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: …
(c)     Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take into account could not have materially affected the decision: …A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg v Bishop of London; Reg v Rochdale Metropolitan Boroough Council; Ex parte Cromer Ring Mill Ltd.
(d)     The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power… I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factors of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.
(citations omitted).
[5] Minister for Aboriginal Heritage v Peko-Wallsend (1986) 162 CLR 24-39.

In summary, a decision maker is not required to consider all relevant matters but only those matters which the statute expressly or by implication requires the decision maker to consider. However, subject to the limitation that the decision not be manifestly unreasonable, matters of weight are for the decision maker.
In Peko-Wallsend Mason J elucidated the content of the obligation to have regard to a mandatory relevant consideration:[6]
(ii) Significance to a Matter Required to be Taken into Account.
A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered. … However, it would be futile and against common sense to require a decision-maker to delay the making of a decision to inquire into further information supplied ex parte by one party if he concludes that, on the assumption that the information is true, it will not tip the balance against the making of a decision contrary to the interests of the party presenting it. A particular example of this is considered subsequently under the heading “Information and policy”.
[6] (1986) 162 CLR 24, 61.
Mason J explained the paramountcy which a decision maker may give to policy considerations and the consequential effect on the treatment of mandatory relevant considerations in the following passages:[7]
(iv) Information and Policy.
The power conferred by s 11(1) of the Act is not conferred for the purpose of deciding between competing claimants for title, possession or use of unalienated Crown land. A decision under s 11(1) is a political decision: see Meneling Station. That is, it is a decision which the Minister might make having regard to considerations of the public interest as he sees it, whether or not that interest coincides with the interests of any party. The Minister is not acting as a judge; he is entitled to act upon his view of the public interest – which requires neither evidence not the Commissioner’s comments to prove it – and thus to make a decision which may be contrary to the weight of evidence at the Commissioner’s inquiry or contrary to the comments made by the Commissioner pursuant to s 50(3). Although the Minister is bound to have regard to detriment in exercising his power under s 11(1), the weight if any which he gives to detriment (or to any other matter mentioned in s 50(3)) or to information relevant to detriment is entirely within his discretion. ..
…
Now we look to the statute and its subject-matter to determine whether or not a decision can be validly made according to the policy of government without giving weight to the issues which opposing parties have fought out in administrative proceedings leading to the decision. If the Minister’s decision may be founded on policy for which the Minister is responsible to the Parliament (see Robinson v Minister of Town and Country Planning), the court does not review decision affecting the interests of contending parties on the ground that no weight or insufficient weight has been given to evidence or information favouring one party. As Lord Diplock reminds us in Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd, Ministers are accountable to the Parliament for policy and to the courts for lawfulness.
As the Act reposes in the Minister the power to make a political decision under s 11(1), he may refuse to give weight to any comment made by the Commissioner pursuant to s 50(3) or to any other information communicated to him with respect to a matter mentioned in s 50(3). He may make his decision under s 11(1) on broad policy grounds if he chooses to do so. His decision cannot be attacked on the ground that the Minister has not given sufficient weight to detriment but it can be attacked if the Minister fails to have regard to detriment. The Minister may deny any weight to detriment, but only if he has fist had proper regard to that matter. When a decision-maker is bound to have regard to a matter, part of his function is to determine whether to give any weight to it. He does not make a valid decision if he does not perform that function.
To determine the weight to be given to a matter, however, the decision-maker must consider the significant information which he has had about the matter. But if the decision-maker is empowered to make his decision on broad policy grounds without giving any weight to the matter to which the information relates, and he thinks it appropriate not to give weight to that matter or to the information, he is not bound to inquire further into that information.
(citations omitted).
[7] Ibid, 63-65.
Brennan J also considered the extent of the obligation on a decision maker to consider a mandatory relevant consideration:[8]
Where I respectfully disagree with the learned trial judge’s conclusion that the Minister’s decision was unaffected by identifiable error is that it does not appear to me that the Minister was, in the circumstances of the present case, entitled simply to ignore, or to remain uninformed about, the very existence of the additional material. That material was credible on its face. It was obviously of considerable significance to an assessment of the extent of the detriment to the respondents which was likely to flow from a grant of the relevant blocks of land to the traditional owners; the Minister, acting reasonably, could not have been of the view that it was either irrelevant or unimportant to any such assessment or that such an assessment was irrelevant to the function he was performing. As I have indicated, the Minister was, in my view, entitled to consider the information and decide that, in the circumstances of the present case, including the absence of any satisfactory explanation of the failure to have placed the additional information before the Commissioner, he should not himself pay regard to it in determining whether a grant should be made. Furthermore, he was entitled to consider the additional material and conclude that, however important it might be to a precise assessment of likely detriment to the respondents, he need not be troubled by it for the reason that, even if it assumed to be completely genuine and accurate, it would not have the effect of weighing the scales against the claims in justice and morality of the traditional Aboriginal owners to a grant of the relevant blocks. It seems to me, however, that the proper inference to be drawn from the evidence is that the Minister did neither of those things. He simply failed to advert at all to the existence of the additional material. This he was not, as I see the matter, entitled to do.
[8] (1986) 162 CLR 24, 70.
In Anderson v Director General of the Department of Environmental and Climate Change[9] Tobias AJ, with whom Spigelman CJ and Macfarlan JA agreed, cautioned against an elaboration of the scope of the obligation, applied by Gummow J in Khan v Minister for Immigration and Ethnic Affairs,[10] and subsequently followed in a number of cases, which requires the decision maker to give ‘proper genuine and realistic consideration’ to a matter:
[9] Anderson v Director General of the Department of Environmental and Climate Change [2008] 163 LGERA 400, 419-420.
[10] (1987) 14 ALD 291; [1987] FCA 713.
[I]n in Weal Giles JA, with whom Priestly JA agreed, discussed the issue in the following terms at [80]:
Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significant of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.
This formulation was approved by the President [Mason P] at [13]. However the foregoing formulation by Giles JA is not immune from the observation, made by the Chief Justice during the course of argument in the present appeal, that its vagueness and imprecision has the potential to invite impermissible merits review.
The abandonment by the appellants of the formulation of “proper, genuine and realistic consideration” on the appeal was, I suspect, sourced in the observations of Basten JA in Kindimindi that such an expression should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. The following further observations of his Honour in Kindimindi are also instructive:
In Weal v Bathurst City Counsel (2000) 111 LGERA 181, Mason P, although “attracted to” the language adopted by Gummow J in Khan, adopted a constrained approach to review of a council’s decision-making process. On the other hand, Giles JA (with whom Priestly JA agreed) stated at [80]:
Taking relevant matters into consideration called for more than simply adverting to them. There has to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration…
This latter formulation appears to treat identification of the correct test as a matter of construction of the clause “take into consideration” in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole, with whose reasons Mason P and Sheller and Powell JJA agreed.
The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council of the language of Gummow J in Khan. Although there is reference to the passage in Bruce v Cole the Chief Justice noted, by reference to Parramatta City Council v Hale, that “mere advertence to a matter required to be taken into consideration is not sufficient”. The reference in Hale, in the judgment of Moffitt P reads as follows:
It was put to us that the authority could consider relevant mattes and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration.
So much must be accepted: the danger is that adoption of the epithets such as “proper, genuine and realistic” consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. …
His Honour repeated these sentiments in Belmorgan Property Development Pty Ltd v GPT Re Ltd:
I do not think that this reasoning is inconsistent with the approach of Tobias JA, nor, for that matter, with the reasoning of Biscoe J in the Land and Environment Court. However, I would not adopt the passage in the judgment below, quoted above in which it is said that the consent authority must give “proper, genuine and realistic” consideration to the mattes prescribed by s 79C: GPT Re Ltd v Wollongong City Council. Biscoe J, in my view correctly, noted the need to apply those epithets cautiously lest they “encourage a slide into impermissible merit review”, referring to Kindimindi Investments Pty Ltd v Land Cove Council where that risk was noted. That caution was reiterated in Azriel v NSW Land and Housing Corporation.
By way of explication, it may be noted that use of the word “proper” may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell and The Queen v Toohey; Ex parte Northern Land Council (Aickin J). Similarly, the word “genuine” may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of “improper purpose”, as explained by Aickin J in Ex parte Northern Land Council. Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, “realistic” finds no ready referent in the language of judicial review.
That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (Mason J). It is not helpfully reflected in a supposed obligation to give “realistic” consideration to a particular matter.
…
The “proper, genuine and realistic consideration” formulation was also criticised by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai where it was observed that the “proper, genuine and realistic” standard
creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised.
I agree with Basten J in Belmorgan that there is a need to apply with caution the epithets of formulations that have been judicially expounded with respect to the requirement in administrative law for the decision-maker to consider a relevant matter. Other formulations adopted in the past require consideration “in real and conscientious way” (Mendoza v Minister for Immigration, Local Government and Ethnic Affairs; “in any real sense” (Turner v Minister for Immigration and Ethnic Affairs; or that the consideration be “adequately addressed” (Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2); and see Bruce v Cole. It is obvious that their use is fraught with the danger of a slide into impermissible merit review. I would therefore prefer that they be avoided.
(citations omitted).
Recently in Plaintiff M1/2021 v Minister for Home Affairs[11] Kiefel CJ, Keane, Gordon and Steward JJ stressed the importance of understanding the phrase ‘proper, genuine and realistic consideration’ in its proper context:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by the former visa holder.
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised” That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, ‘[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”, The court does not substitute its decision for that of an administrative decision-maker.
None on the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons disclose that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(footnotes and citations omitted).
[11] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]-[27].
The applicants submitted that the following were mandatory relevant considerations:
·What are the items of Aboriginal heritage which are, or likely to be, interfered with?
·Had there been, or would there be, sufficiently adequate searches to discovering or identifying Aboriginal sites or objects, within the authorised area?
·How significant is the known heritage?
·Who are the relevant Aboriginal people?
·What is the extent of the proposed interference?
·What measures will be put in place to protect and preserve the Aboriginal heritage in question?
·How, if at all, will the interference assist with recording or researching Aboriginal heritage;
·How substantial is the public interest which warrants the anticipated interference with Aboriginal heritage?
·What benefit or compensation, if any, are the affected Aboriginal people likely to receive?
·The section canters on the Minister to make a broadly discretionary judgment having regard to those relevant considerations to which the Minister chooses to give some weight.
It can be accepted that the above particularised matters are relevant considerations. However, there is no textual foundation for discerning a legislative intent to mandate their considerations. The statutory provisions do not prescribe at all the form which the Minister’s consideration must take. Matters of this kind are necessarily complex particularly where interests of Aboriginal peoples overlap and sometimes compete. The Aboriginal Heritage Act leaves a great degree of decisional freedom to the Minister. It should not be constrained by imposing on the Minister an obligation to frame his or her obligation to consider the effect of an authority on Aboriginal heritage by reference to issues and contentions which are framed in a way which may be appropriate in a forensic context but are ill‑suited to the exercise of a wide discretion which on balance outweigh any matters of public interest.
Moreover, many of the identified considerations require the Minister to prognosticate on what objects may be found and how they might be affected by the exploration activities. They are not easily susceptible to objectively based findings. Others of the identified considerations call for policy judgements. The grant of an authorisation for the purposes of s 23 of the Aboriginal HeritageAct requires risk, and cost/benefit assessments in which the relevant considerations which can usefully be weighed may vary greatly. An application for an authorisation could not be determined in a practical and reasonably expeditious manner if the Minister’s discretion as to how to assess the effect on Aboriginal heritage was unduly burdened by a mandatory forensic fact finding exercise in respect of all possibly relevant submissions.

In any event many, if not all of those matters, were, on the face of the materials, considered by the Minister. They are referred to in the material and reports particularly in the report of AAR put before the Minister. The applicants submit that it can nonetheless be concluded that the Minister failed to take into account one or more of the identified considerations because:
·implementation of the authorisation would not result in surveys for the purpose of identifying and/or recording Aboriginal sites or objects;
·the implementation of the authorisation would not result in research into Aboriginal heritage;
·the authorisation would not deliver any benefit to the Aboriginal people, or to the Barngarla people in particular;
·the authorisation would not result in any compensation for loss or damage to Aboriginal heritage;
·the authorisation of damage to Aboriginal sites, objects and remains which were not known to the Minister;
·the fact that the complete extent, nature and significance of Aboriginal heritage within the authorisation area was unknown to the Minister;
·the fact that a blanket authorisation would allow for unrecorded or yet unidentified Aboriginal heritage to be damaged, disturbed or interfered with;
·the absence of any mechanism to assess the fitness of any of Kelaray’s assignees or agents, who came within the scope of the authorisation.
The matters so identified are either findings which the Minister might, but was not bound to make or reasons which might have persuaded the Minister not to grant the authorisation. However, they do not establish that the underlying relevant matters were not considered particularly having regard to the observations of Mason J in Peko-Wallsend as to the relative weight which may be accorded to some relevant matters when balanced against policy considerations concerning the State’s interest. I acknowledge that they are also arguments which might be put on the ground that the grant of the authorisation was manifestly unreasonable. However, even on that ground the submissions establish no more than that there were reasonable arguments against the grant of authorisation. Indeed, AAR put arguments of that kind. However, it cannot be said that it was manifestly unreasonable of the Minister to take a different view.
Irrelevant consideration
On this ground the applicants, in effect, repeat the expectation ground. I dismiss the application on this ground.
Unlawful delegation
The applicants contend that by authorising Kelaray and others to interfere with items of Aboriginal heritage in accordance with its CFP, the Minister, in effect, delegated his power to grant an authorisation under s 23 of the Aboriginal Heritage Act. The applicants rely on s 6(3) of the Aboriginal Heritage Act which requires the delegation be in writing. They contend that because no such written delegation was given, the authorisation was not an authorisation given under law.
The applicants’ submission misapprehends the nature of an authorisation under s 23 of the Aboriginal Heritage Act. The authorisation by the Minister is a factual circumstance which denies the existence of a necessary element of s 23. The Minister did not purport to delegate to Kelaray power to make any determination or give any authorisation under the Aboriginal Heritage Act.
Manifestly unreasonable
The applicants contend that the grant of the authorisation is manifestly unreasonable because:
·the authorisation fails to require Kelaray to take into account the views of the Barngarla people on the significance of any sites, objects and remains found;
·fails to require Kelaray to take all reasonably practicable measures to preserve Aboriginal sites, objects and remains;
·fails to require Kelaray to undertake heritage surveys by Barngarla persons approved by BDAC;
·fails to require Kelaray to consider the views of Barngarla persons;
·has allowed the authorisation holder to determine whether Aboriginal heritage is found and discovered and what is to be done.
The applicants also rely on matters they raised in respect of the considerations ground on procedural aspects of the consultation.
The consideration of the application for an authorisation required the Minister to balance the exploitation of potentially valuable State resources against the protection of traditions and culture which has been observed for millennia and continues to be observed by Aboriginal people of this State. In the circumstances of this case, exercises of the discretion either to grant or to refuse the authorisation were equally open.
The excessively wide class of persons and items grounds
The applicants submit that s 23 authorisation can only be given in respect of one of more identified Aboriginal sites, objects or remains, or one or more identified classes of Aboriginal sites, objects or remains. That contention was rejected by this Court in Starkey & Ors v The State of South Australia.[12] The Minister in that case granted an authorisation to a mining company (Straits) to interfere with items of Aboriginal heritage in the course of mining within the area of an exploration licence on Lake Torrens. The Minister did so after informing traditional owners of Lake Torrens, the Kokatha and Adnyamathanha people, that she was considering delegating her powers to do so to them. The traditional owners sought judicial review of the Minister’s decision. The application was granted on the grounds that the Minister denied the traditional owners procedural fairness. However, Stanley J with whom David J agreed, also considered but rejected a challenge to the validity of the grant on the ground that an authority pursuant to s 23 could only be given after a determination had been made pursuant to s 12 of the Aboriginal Heritage Act:
[12] [2011] 111 SASR 537.
Was a determination pursuant to s 12 required before the Minister could grant the s 23 authorisation?
…
150I agree with the learned trial judge that the exercise of the Minister’s powers pursuant to s 23 is not conditional upon a determination being made under s 12. There are a number of reasons for this conclusion.
151First, subject to certain exceptions, the Act provides blanket protection for all Aboriginal sites and objects irrespective of whether they are registered on the Register. The definition of “Aboriginal site” is not limited to areas declared by regulation to be so, nor is it limited to those sites determined to be “Aboriginal sites” which have been entered into the Register pursuant to s 12.
152Aboriginal sites which have not been entered on the Register are nonetheless protected by the Act.
153The operation of s 23 is not circumscribed by the concept of “registered” Aboriginal sites or objects. In the scheme of the Act it has an operation independent from s 12. The Minister can give an authorisation to a person to damage, disturb or interfere with an Aboriginal site or object not on the Register.
154Secondly, the language of s 12 is permissive. The words in s 12(1) “the person may apply to the Minister” emphasises that the nature of the provision is permissive rather than mandatory.
155Section 12 provides a mechanism whereby a party such as Straits can obtain clarity and certainty. It can operate to protect such a party from an allegation that s 23 of Act has been contravened if the Minister determines that a site should not be entered on the Register.
156Pursuant to s 12 a person who proposes to take action in relation to a particular object or area which may constitute an offence under the Act can apply to the Minister. The Minister must give the applicant a written notice if the object is entered in the Register, or notice that the Minister considers the object should be entered in the Register, or give the applicant notice of the location of each site or object in the area that is entered in the Register or the Minister has determined should be entered in the Register.
157Therefore, pursuant to s 12 a party such as Straits may make an application to the Minister for a determination as to whether a specified area includes an Aboriginal site or object. If the determination is in the negative the party may proceed with the activity and cannot be found guilty of contravening s 23 even if, subsequently, it transpires that the area does contain a site or object of Aboriginal significance. Conversely, if a site or object is registered pursuant to s 12, the party alleged to have contravened s 23 would be unlikely to be able to rely upon a defence that it did not know that it had damaged, disturbed or interfered with a site or object.
158These considerations provide sound reasons why a party in the position of Straits may wish to avail itself of an application to the Minister pursuant to s 12. However, it is not obliged to do so.
159Thirdly, the operation of s 23 being conditional upon s 12 is contra indicated by the powers conferred upon the Minister to enter a site onto the Register of the Minister’s own motion.[13]
160Fourthly, I agree with the submission for the first and second respondents that the terms of the letter from the Minister’s Department recommending that Straits firstly seek a s 12 determination prior to seeking an authorisation pursuant to s 23 does not support the construction contended for by the appellants. On the contrary the letter supports the respondents’ construction. In express terms, the letter provides that the Act allows a concurrent s 12 determination and a s 23 authorisation. The letter is inconsistent with the appellants’ submission.
…
[footnote in original]
[13] Aboriginal Heritage Act 1988 (SA) ss 5(1)(a), (1)(b), 8(1)(a), 22(1) and s 24(1).
Stanley J also held that an authorisation given pursuant to s 23 did not require every person authorised to be individually identified.
163As a matter of construction s 23 does not require each and every individual person who is authorised pursuant to s 23 to be individually identified. The Act does not expressly require this. There is nothing in the Act which prohibits the Minister from making an authorisation in the terms of the s 23 authorisation granted to Straits. In this case the authorisation applies to Straits and in addition, to its partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL#4296.
164Each of the persons identified in the Minister’s authorisation represents recognisable categories of persons identified by their relationship to Straits.
165In my view there is no uncertainty as to the scope of the authorisation in this regard. It is sufficient the authorisation identifies each of the entities referred to generically so that those persons can be determined with precision at any particular time in the future. Each of the relationships described in the authorisation are recognised legal categories which the Court would have no difficulty in identifying. There would be no difficulty in any given case deciding whether a person was a partner, employee, contractor or subcontractor of Straits.
166Neither do I consider the authorisation to be too wide. In my view it was open to the Minister to grant an authorisation to those identified categories of persons who may be in a legal relationship with, or connected with, Straits for the purposes of the exploration activity Straits wishes to undertake in the Lake Torrens site.
167The purpose of the s 23 authorisation justifies the width of the authorisation granted by the Minister and its terms. A pragmatic approach should be taken to this matter. It is not difficult to conceive that for the purposes of undertaking its exploration activities Straits may wish to engage contractors and to use subcontractors. There is no reason why they should not be incorporated within the terms of the authorisation given by the Minister at this stage. There is no reason why Straits should be forced to apply for a separate authorisation in future in circumstances where it might wish to avail itself of the services of contractors or subcontractors or, for that matter, to enter into a partnership with another company or to transfer its interest and rights under the exploration licence to another company. On the contrary, if the Minister is satisfied that it is appropriate to grant an authorisation to Straits, there is no reason to consider it is not appropriate to grant the authorisation in the wider terms the Minister gave.
…
[footnote omitted].
Finally, Stanley J held that it was not necessary that an authority given under s 23 of the Aboriginal Heritage Act identify the particular items over which the authority is given.
183In my view there is nothing in the Act which requires the Minister to be satisfied as to the existence or otherwise of an Aboriginal site, object or remains before giving a s 23 authorisation. The Minister’s power under s 23 does not arise only where objects or remains have been identified.
184Section 23 contemplates “a situation in which there is a risk of damage to or disturbance of Aboriginal objects and remains, it being uncertain whether or not this will occur because of uncertainty as to whether or not Aboriginal objects or remains are present”.
185I accept the submission put by Straits, that in the absence of clear words in the Act, there is no reason to fetter the Minister’s power under s 23 in the manner contended by the appellants. Had Parliament intended to do so, it could have expressly stipulated such a requirement. There is nothing to suggest that Parliament intended there to be any such requirement.
186On the contrary, to require that the Minister be satisfied of these matters prior to granting an authorisation might well require the Minister to undertake substantial excavation and interference with the site itself, which would be contrary to the provisions of s 23, absent the Minister’s authorisation. In any event, this would be completely impractical in many circumstances.
…
190In my view the reasoning of the learned trial judge in this regard is correct. The obligation imposed by s 13 does not require the Minister to consult personally with each of the persons identified in s 13(1)(d), (e) and (f). That would not be practical. The same conclusion was reached by the Chief Justice in Newchurch.[14] The obligation to consult imposed on the Minister by s 13 is qualified by the words “take all reasonable steps to”. While this could include personal consultation, it does not require it.
[footnote in original].
[14] Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [148] and [157].
Doyle CJ expressly rejected a submission to the same effect put against the validity of the authorisation in Newchurch.[15]
Mr Roder’s first submission appears to be that s 23 of the Act does not allow a general authorisation to be given before any objects or remains are found. The power to authorise damage, disturbance or interference is said to arise only if objects or remains have been identified.
I disagree. There is no reason to limit the section in this way. To the contrary, it contemplates a situation in which there is a risk of damage to or disturbance of Aboriginal objects and remains, it being uncertain whether or not this will occur because of uncertainty as to whether or not Aboriginal objects or remains are present. Common sense suggests that such a situation will often arise. As this case illustrates, an obvious use of s 23 is to establish a regime under which an activity that might cause damage or disturbance can proceed, as long as adequate precautions are taken to avoid such damage and disturbance.
[15] Ibid, [137]-[138].
Section 23 creates a criminal offence. An authority granted by the Minister to engage in conduct which would otherwise be an offence against s 23 must be sufficiently certain both because of the exceptional nature of a power to exempt a person from criminal prosecution and because it is necessary for a person to be reasonably certain as to whether they fall within or outside of the authority. Finally, the proper administration of justice in the event that a person is charged with contravening s 23 relies on certainty in the scope of an authorisation.
Most simply, an authority might be granted to a particular identified person to damage, disturb or interfere with a particular identified site, object or remains. However, s 23 would be largely unworkable if it was limited in that way. For a range of reasons, not least of which is the nature of the definition of an item of Aboriginal heritage under the Aboriginal Heritage Act, it is not possible to know in advance the precise location of items of Aboriginal heritage. When they are known, for cultural reasons, it will not be possible to publicly disclose what and where they are. The Aboriginal people have occupied the territory of this State for millennia, and items of Aboriginal heritage might be found in either concealed, or easily visible, locations throughout the State. On the other hand, the economic welfare of the State depends on the efficient exploitation of its agricultural and mineral resources over large tracts of land.
It must therefore be accepted both on the plain text of s 23 of the Aboriginal Heritage Act, and on a purposive construction, that an authority might be given with respect to a class of persons or class of items. The items might be described by reference to the nature and kind of the item or items with which the Minister authorises a person to interfere. Alternatively, they might be described by reference to any kind of item found in a particular location or in the course of particular works.
Similarly, given the complex nature of modern workforces and the movement of labour generally, the person authorised might be identified by membership of a class such as an employee or contractor of a corporation or corporations.
Therefore an authority may validly describe the objects, and the persons who are authorised to interfere with them, by class, if the class is sufficiently well defined. The excessively wide class of persons and excessively wide items grounds must be dismissed.
However, as we shall see, the risk to items of Aboriginal heritage identified by reference to a wide class may be minimised if the authority granted pursuant to s 20 of the Aboriginal Heritage Act is conditional on reporting the discovery to the Minister in accordance with s 20 of the Aboriginal Heritage Act and allowing a period of time for the Minister to act before the items are interfered with.
In that way the coherent operation of ss 20 and 23 is maintained. Responsibility for both fixing the period of time in which the items can not be interfered with and acting promptly within that stipulated time so that the interests of the applicant and the State in expedition on the one hand, and the protection of Aboriginal heritage on the other rests with the Minister.
Kelaray’s Chance Find Procedure– Inconsistency with s 20
The fundamental difficulty in the authorisation granted by the Minister arises out of the interaction between ss 20 and 23 of the Aboriginal Heritage Act, and the purported authorisation of Kelaray to interfere with items of Aboriginal heritage in accordance with the advice of Aboriginal monitors or archaeologists it selects, before the Minister is notified of the find pursuant to s 20 and before the Minister can consider giving contrary direction pursuant to s 20(3).
Section 20 is of central importance to the effectiveness of the scheme for the protection of Aboriginal heritage enacted by the Aboriginal Heritage Act. Items of Aboriginal heritage and Aboriginal remains might be scattered in locations all over the State and in particularly remote locations. The economic development of the vast regions of the State puts items of Aboriginal heritage at risk. The obligation to notify the Minister of the discovery of items of Aboriginal heritage is necessary if the statutory powers conferred on the Minister are to be exercised effectively. In particular, if notification is given as soon as practicable after a chance find, the Minister can first consider whether the item is of Aboriginal heritage, and in that respect is bound by the advice of the traditional owners, before considering whether to give a direction pursuant to s 20(3) of the Aboriginal Heritage Act as to the protection or preservation of the remains as the Minister considers appropriate. The direction given by a Minister may not be a determination or authorisation under the Aboriginal Heritage Act for the purposes of s 12, but the Minister may nonetheless consult in the way contemplated by s 13 as a matter of good public administration for which the Minister will be accountable.

There is no power to exempt a person from the obligation imposed by s 20 of the Aboriginal Heritage Act. Absent an authorisation given pursuant to s 23 of the Aboriginal Heritage Act, a person reporting a find cannot pre-empt the Minister’s consideration of the powers conferred by ss 5, 8 and 20(3), by interfering and even destroying the items before a determination and/or a direction is given. However, the failure to appropriately condition the authorisation granted to Kelaray immunises it from prosecution for a breach of s 23 of the Aboriginal Heritage Act for interfering with items of Aboriginal heritage in a way which undermines the effectiveness of s 20. The Aboriginal Heritage Act does not authorise the grant of an authority which would allow persons to interfere with items of Aboriginal heritage discovered by them before they comply with the obligation imposed by s 20. A person may still be liable to prosecution for failing to report a chance find as soon as practicable pursuant to s 20 of the Aboriginal Heritage Act but an authorisation which is not conditioned in a way which allows s 20 its full operation would permit that person to escape the burden of any direction which might be given pursuant to s 20(2) in order to protect the item of Aboriginal heritage.
It must be accepted in accordance with the decision of the Full Court in Starkey that it is not necessary that the Minister grant an authorisation or make a determination pursuant to s 12 before granting an authorisation pursuant to s 23 of the Aboriginal Heritage Act. So much is clear because, as Stanley J explained, no application need be made pursuant to s 12 of the Aboriginal Heritage Act. It is a purely facilitative provision. It must also be accepted that it is not necessary for the Minister first to make a s 12 determination because the practicalities of undertaking work in the vast expanse of the Australian landscape means that a prospective authorisation will sometimes be necessary.
Of course a prospective authority which does not identify any particular object, does not abrogate responsibility or diminish the power of the Minister on the reporting of the discovery to make a determination or give a direction pursuant to s 12 or s 20 of the Aboriginal Heritage Act.
In Newchurch[16] Doyle CJ considered a challenge to the validity of an authorisation granted pursuant to s 23 with respect to work on the new Royal Adelaide Hospital. The instrument authorised that damage, disturbance or interference with Aboriginal sites, objects or remains on the site of the new Royal Adelaide Hospital. The authorisation was granted to the Minister for Health, other responsible Ministers of the Crown and to staff, contractors, sub-contractors or agents associated with any of the services and facilities that may be established on the land.
[16] Newchurch v The Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [136].
The Chief Justice made several observations about the terms of that authorisation including the instrument’s omission of a condition that the Minister be notified of any objects or remains which were found:
There are three points that I make about the Second Authorisation, so that they are not overlooked. First, it does not extend to the removal of an object or remains, if found. The prohibition in s 23(c)(ii) against removal of an object or remains continues in force. Second, s 23 does not contain a prohibition against damage to Aboriginal remains. Why that is so, I do not understand. Third, it is not a condition of the authorisation that the Minister be notified if an Aboriginal object or remains are found, enabling the Minister to consider what should be done with the object or remains. I find that surprising. It is not something that can affect the validity of the Second Authorisation. All I can say is that I would have thought that the Minister would want an opportunity to consider what should be done if an Aboriginal object or remains were found, bearing in mind the terms of s 5(1)(a) of the Act.
The comment that the failure to make reporting of a discovery a condition does not invalidate the authorisation, was not made in the context of a challenge to the authority based on s 20 of the Aboriginal Heritage Act. The only point made by Doyle CJ is that speaking generally, and in the abstract, a grant is not invalidated by failing to impose a sensible condition. Importantly too, the authorisation in Newchurch did not, in any event, extend to the removal of the object. In the practical application of the authority granted in that case, therefore it is likely that the Minister would have been notified of any find before the item was removed. Moreover, the report of Newchurch does not reveal the terms of any discovery protocol or chance find procedure which might have been in place. Indeed, it does not appear that there was any other condition other than that set out in the authority which is reproduced in paragraph [135] of the judgment.
Kelaray’s CFP and the protocol developed by the AAR do not condition the authority to interfere with items on the Minister first being given an opportunity to consider whether or not to exercise his or her statutory powers pursuant to s 20 of the Aboriginal Heritage Act. True it is that Kelaray would still be liable to prosecution for failure to comply with s 20 of the Aboriginal Heritage Act despite the grant of the authority. However, allowing Kelaray to remove, and interfere with, an item of Aboriginal heritage without first complying with s 20, substantially diminishes the power of oversight and review by the Minister and puts items of Aboriginal heritage at risk.
The obligation to report, and the Minister’s powers, under s 20 of the Aboriginal Heritage Act can be accommodated within the grant of a s 23 authority in a number of ways. Most obviously the authority can be framed such that the authority to interfere or remove with items is conditioned on the passing of a period of time after making the report should the Minister not otherwise direct. Alternatively, the degree of interference might be limited to taking steps which minimise the interference until the determination has been received.
The conferral of the powers in the Minister to
·determine that items are of Aboriginal heritage,[17]
·give directions pursuant to ss 20 and 24 of the Aboriginal Heritage Act, and
·authorise a person to enter land to find and take possession of items of Aboriginal heritage.
lead to the conclusion, that an authorisation granted pursuant to s 23 must not substantially detract from the practical legal operation of those provisions in a way which substantially compromises the Minister’s statutory powers to protect items of Aboriginal heritage. The provisions to which I have referred, by necessary implication, limit the power to grant an authority pursuant to s 23.
[17] Aboriginal Heritage Act (1988) ss 5, 8.
The failure to impose conditions on the authority which allow the scheme and in particular, ss 12 and 20 of the Aboriginal Heritage Act, to fully reflect the intention to protect Aboriginal heritage results in the invalidity of the authority.
Conclusion
I would allow the application for judicial review. I set aside the determination made on 29 December 2020 to grant the authorisation to Mr Owler and Kelaray pursuant to s 23 of the Aboriginal Heritage Act.

[2022] SASC 91

25 August 2022