Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs - [2024] WASCA 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FORREST & FORREST PTY LTD -v- MINISTER FOR ABORIGINAL AFFAIRS [2024] WASCA 96
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   5 & 6 MARCH 2024
DELIVERED          :   9 AUGUST 2024
FILE NO/S:   CACV 53 of 2023
BETWEEN:   FORREST & FORREST PTY LTD
Appellant
AND
MINISTER FOR ABORIGINAL AFFAIRS
First Respondent
BUURABALAYJI THALANYJI ABORIGINAL CORPORATION
Second Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT PRITCHARD
DR S WILLEY, SENIOR MEMBER
MS C BARTON, MEMBER

Citation: FORREST AND FORREST PTY LTD and MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28
File Number : DR 82 of 2019

Catchwords:

Administrative law - Judicial review - Where Minister declined to consent to the use of land under Aboriginal heritage legislation - Where appellant sought review of the Minister's decision in the State Administrative Tribunal - Where Tribunal affirmed decision under review - Whether the Tribunal erred in law in regarding the Minister's decision as probative of its own correctness - Terms on which the matter should be sent back to the Tribunal for reconsideration

Legislation:

Aboriginal Heritage Act 1972 (WA), s 17, s 18, s 39
State Administrative Tribunal Act 2004 (WA), s 18, s 27, s 29, s 105

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2, 3, 4, 5 and 6
Appeal allowed
Tribunal's orders set aside
Matter sent back to the Tribunal, to be constituted by different members, for reconsideration in a fresh hearing de novo

Category: A

Representation:

Counsel:

Appellant	:	K M Pettit SC & A J Papamatheos
First Respondent	:	G J Ranson SC & J M Misso
Second Respondent	:	S J Wright SC & V E Long-Droppert

Solicitors:

Appellant	:	Green Legal
First Respondent	:	State Solicitor's Office
Second Respondent	:	Castledine Gregory

Case(s) referred to in decision(s):

Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S)
Aung v Minister for Immigration [2000] FCA 1562
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271; (2022) 254 LGERA 274
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Commissioner for Consumer Protection v Murphy [2013] WASCA 89
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610
McKay v Commissioner of Main Roads [2013] WASCA 135
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518
Mustac v Medical Board of Australia [2007] WASCA 128
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
O'Sullivan v Farrer (1989) 168 CLR 210
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298
Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Young v Legal Profession Complaints Committee [2022] WASCA 52; (2022) 59 WAR 1

Table of Contents

BUSS P

The questions of law raised by the grounds of appeal

The background facts and circumstances, the relevant statutory framework, the relevant evidence at the hearing before the Tribunal, the Tribunal's reasons for decision and the submissions of the parties in the appeal

Ground 1 and the question of law it raises

The orders this court should make in the appeal

Conclusion

MITCHELL JA

Background and summary

Legislative context

The AH Act

Relevant version of the AH Act

Objects of the AH Act

Application of the AH Act

Administration

Offence creating provision

Obtaining consent to the use of land

Review by the Tribunal

Review proceedings under the SAT Act

Appeal from Tribunal decisions

Procedural history

Tribunal's approach

Case overview

Legislative framework

Issues and evidence

Evidence and findings

Cultural evidence

Hydrological and environmental evidence

Economic benefits

Evaluation on the review

Consideration of the ACMC's recommendation

Consideration of the general interest of the community

Ground 1: giving weight to the fact of the Minister's decision

Role of the ACMC, Minister and Tribunal

Disposition of ground 1

Other grounds of appeal

Ground 2: giving weight to ACMC's recommendation

Ground 3: legislative object of the AH Act

Ground 4: evidence of harm to Thalanyji spiritual beliefs and culture

Ground 5: loss of artefacts in the riverbank

Ground 6: risk of alteration of the Peepingee Pool

Terms of remittal to the Tribunal

Whether reasonable apprehension of bias would arise on reconsideration

Directions on reconsideration

Orders

VAUGHAN JA

The appeal succeeds

The parties' position on the appropriate orders

The statutory framework

The orders this court should make

Conclusion and orders

BUSS P:

The appellant is the lessee under a pastoral lease of the Minderoo Station (Minderoo).
The Ashburton River (the River), also known as Mindurru, is located in the Pilbara region. The River is about 680 km in length. The River rises about 70 km south of Newman. It flows through Minderoo. It enters the Indian Ocean about 20 km south of Onslow.
The appellant proposed to construct 10 weirs across the River at locations where the River flows through Minderoo, together with related bores, infrastructure and access tracks (the Proposed Works).
The purpose of the Proposed Works was to pool and capture water to facilitate the recharging of groundwater aquifers (the MARS project). The recharging of the aquifers would enhance beef production, cropping and other agricultural and pastoral uses at Minderoo.
The part of the River where the Proposed Works would be located is an 'Aboriginal site' as defined in s 4 of the Aboriginal Heritage Act 1972 (WA) (the AH Act).
By s 11A of the AH Act (as in force at the material time), the responsibility for the administration of the AH Act is vested in the Minister who is required to have regard to the recommendations of the Aboriginal Cultural Material Committee (the ACMC), established under s 28(1) of the AH Act, and the Registrar of Aboriginal Sites (the Registrar), appointed under s 37(1) of the AH Act, but, unless otherwise stated in the AH Act, is not bound to give effect to any such recommendation.
Section 17 of the AH Act (as in force at the material time) provided:
A person who -
(a)excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or
(b)in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site,
commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.
Section 18(2) of the AH Act (as in force at the material time) provided that where 'the owner of any land' (which phrase was defined in s 18(1) to include a lessee from the Crown) gives to the ACMC 'notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land':
the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
Section 18(3) of the AH Act (as in force at the material time) provided:
Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either -
(a)consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(b)wholly decline to consent to the use of the land the subject of the notice for the purpose required,
and shall forthwith inform the owner in writing of his decision.
On 20 July 2017, Mr Sam Rizzo on behalf of the appellant gave to the ACMC a notice that, in effect, sought the Minister's consent to use land for the MARS project.
Ultimately, on 28 June 2018, the ACMC recommended to the Minister that consent not be granted.
By letter dated 25 March 2019, the Minister informed the appellant that he declined to consent to the use of the land for the MARS project.
The Minister's reasons, as set out in the letter, for declining to consent were these:
In accordance with my powers under section 18(3) of the [AH Act], following consideration of the recommendations from the Aboriginal Cultural Material Committee and having regard to the general interests of the community, I hereby decline consent to the use of the land for the proposed Purpose. My decision is based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River.
Section 18(5) of the AH Act (as in force at the material time) provided that where the owner of any land was aggrieved by a decision of the Minister made under s 18(3), the owner may apply to the State Administrative Tribunal (the Tribunal) for a review of the decision.
On 18 April 2019, the appellant lodged an application with the Tribunal for a review of the Minister's decision.
On 22 to 26 March and 3 and 4 June 2021, the Tribunal (comprising President Pritchard, Dr S Willey, Senior Member, and Ms C Barton, Member) heard the application for review.
On 6 April 2023, the Tribunal delivered its decision and published written reasons.
On 18 April 2023, the Tribunal ordered that the Minister's decision, as recorded in the letter dated 25 March 2019, be affirmed.
The appellant has appealed from the Tribunal's decision to this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). By s 105(1), the appellant may appeal only if this court gives leave to appeal.

The questions of law raised by the grounds of appeal

The appellant's appeal can only be brought on a question of law. See s 105(2) of the SAT Act.
The appellant's case sets out six grounds of appeal. The appellant relies upon the questions of law raised by those grounds.
I agree with Mitchell JA, for the reasons he gives, that grounds 2, 3, 4, 5 and 6 have not been established.
I agree with Mitchell JA that ground 1 has been made out. However, I will state my own reasons for arriving at that conclusion.
I also agree with Mitchell JA that leave to appeal should be granted; the appeal should be allowed; the order made by the Tribunal on 18 April 2023 should be set aside; and the matter should be sent back to the Tribunal for reconsideration. However, I will state the directions or recommendations that I would make in relation to the hearing of further evidence by the Tribunal and whether or not the Tribunal reconsidering the matter is to be constituted by the members who made the original decision.

The background facts and circumstances, the relevant statutory framework, the relevant evidence at the hearing before the Tribunal, the Tribunal's reasons for decision and the submissions of the parties in the appeal are summarised in Mitchell JA's reasons. I will not repeat his Honour's summary except to the extent necessary to explain my reasons.

Ground 1 and the question of law it raises

Ground 1 alleges in essence that the Tribunal erred in law, in determining whether to give or refuse approval of the appellant's application, by giving weight to the Minister's decision to refuse consent under s 18(3)(b) of the AH Act.
The question of law raised by ground 1 is whether the Tribunal could lawfully give weight to the decision under review.
I begin my consideration of the question of law by examining the relevant statutory framework contained in the AH Act and the SAT Act.
By s 18(3) (as in force at the material time), where the ACMC submits a notice to the Minister under s 18(2):
(a)the Minister shall consider the ACMC's recommendation; and
(b)having regard to 'the general interest of the community', the Minister shall either:
(i)consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
(ii)wholly decline to consent to the use of the land the subject of the notice for the purpose required.
In the present case, the proceedings before the Tribunal were within its review jurisdiction. See s 17(1) of the SAT Act read with s 18(5) of the AH Act. The AH Act is an 'enabling Act', as defined in s 3(1) of the SAT Act. By s 17(3) of the SAT Act, the Minister's decision under s 18(3) of the AH Act is a 'reviewable decision' for the purposes of the SAT Act.
Section 18(1) of the SAT Act provides that, in exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.
Section 27(1) of the SAT Act provides that the review of a reviewable decision is to be by way of a hearing de novo. It is not confined to matters that were before the decision‑maker but may involve the consideration of new material, whether or not it existed at the time the decision was made. By s 27(2), the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. Section 27(3) provides that the reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Section 29(1) of the SAT Act provides that, in exercising its review jurisdiction, the Tribunal has functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision. Section 29(2) provides that s 29(1) does not limit the powers given by the SAT Act or the enabling Act to the Tribunal. By s 29(3), the Tribunal may affirm, vary or set aside the decision that is being reviewed. Section 29(3) also provides that if the Tribunal sets aside the decision that is being reviewed, the Tribunal may substitute its own decision or send the matter back to the decision‑maker for reconsideration, in accordance with any directions or recommendations that the Tribunal considers appropriate. Section 29(3) further provides that, in any case, the Tribunal may make any order that the Tribunal considers appropriate. Section 29(5) provides that the decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision:
(a)is to be regarded as, and given effect as, a decision of the decision‑maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, it is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.

A review by way of a 'hearing de novo', in its ordinary meaning, involves a fresh hearing and a fresh consideration of the issues on the evidence and on the law at the time of the review; that is, at the time of the hearing de novo. The court or tribunal carrying out the review begins afresh and exercises for itself any function, power or discretion exercisable by the decision‑maker. A hearing de novo involves the exercise of original, not appellate, jurisdiction. It is unnecessary for the applicant or the court or tribunal to identify error by the decision‑maker. The applicant must start again, call witnesses (if necessary) and make out the applicant's case on the relevant issues. The court or tribunal must give its own decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review. The features of a hearing de novo, in its ordinary meaning, may of course be amended or supplemented by statute. See Harris v Caladine;[1] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum;[2] Ord Irrigation Cooperative Ltd v Department of Water.[3]
[1] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 96 (Mason CJ & Deane J), 124 ‑ 125 (Dawson J).
[2] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [61] (Buss P, Murphy & Beech JJA).
[3] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [121] (Buss P, Murphy & Mitchell JJA).
In the present case:
(a)The hearing before the Tribunal was a hearing de novo.
(b)The hearing de novo was not confined to the material before the Minister. The parties were entitled to adduce additional relevant material at the hearing before the Tribunal, whether or not the material existed when the Minister made his decision, and the Tribunal was obliged to consider that material.
(c)The Tribunal's function was to produce the correct and preferable decision at the time of its decision upon the review.
(d)The appellant did not bear any legal or practical onus of identifying error in the Minister's decision or of showing that there should be some departure from that decision. See Ord Irrigation Cooperative [122].
(e)The Tribunal, in carrying out the review, had functions, powers and discretions corresponding to those of the Minister.
(f)In particular, the Tribunal was bound to consider the ACMC's recommendation but was not bound to give effect to the recommendation. The Tribunal was obliged, having regard to the 'general interest of the community', to either:
(i)consent to the use of the land for the Proposed Works and the MARS project, or a specified part of the land for that purpose, subject to such conditions, if any, as the Tribunal may specify; or
(ii)wholly decline to consent to the use of the land for the relevant purpose.
(g)The Tribunal's powers to affirm, vary or set aside the Minister's decision, conferred by s 29(3) of the SAT Act, had to be exercised by reference to the limits on the Minister's functions, powers and discretions under s 18(3) of the AH Act. See Ord Irrigation Cooperative [123].
(h)However, the Tribunal was bound to consider the material adduced at the hearing before the Tribunal and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.

I turn to consider whether, as a matter of law, the Tribunal could lawfully give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application.
In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2),[4] Davies J (the President of the Administrative Appeals Tribunal) gave directions in the context of an application to the Administrative Appeals Tribunal (AAT) to review a decision of the Australian Broadcasting Tribunal.
[4] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
In his reasons, Davies J referred to:
(a)section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which required the decision‑maker, within 28 days after receiving notice of an application for review, to lodge with the AAT a statement setting out the decision‑maker's findings on material facts, referring to the evidence or other material on which those findings were based and giving reasons for the decision (92); and
(b)section 38 of the AAT Act, which empowered the AAT to order that an additional statement be provided by the decision‑maker in a case where the AAT was of the opinion that the statement provided did not contain adequate particulars of findings on material questions of fact, adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for decision (92).
His Honour considered that it was a necessary inference from s 37 that the statement provided by the decision‑maker under that provision was 'a relevant matter which the [AAT] may take into account in the review' (92). His Honour also considered that s 38 affirmed the relevance in a review 'both of the findings of fact which were made by the decision‑maker and of the reasons for his decision' (92).
Next, Davies J said:
(a)if the AAT considers it appropriate in its review to rely upon a finding of fact set out in the decision‑maker's reasons, the AAT may do so (92); and
(b)if the decision‑maker is a person or tribunal having 'a special expertise or knowledge of facts in a particular area, it may well be appropriate to do so' (92).
His Honour then elaborated (92 ‑ 93):
It will, from time to time, be appropriate to rely upon a finding of fact expressed in the decision‑maker's statement where the matter does not depend at all upon expertise but is a finding which the Tribunal considers it should take into account because of the delay and expense which would otherwise be involved in investigating the matter. Moreover, in a case where government policy is relevant or where practice should be taken into account with a view to obtaining consistency of decision, it will be relevant and appropriate to have regard to the reasons for decision if those reasons express the relevant policy or practice.
For these reasons, I am of the view that when the Tribunal approaches its task of determining what is the correct or preferable decision on the material before it, the Tribunal may have regard to the findings of fact and the reasons for decision of the decision‑maker for that is part of the material which the Act contemplates may be used by the Tribunal.
That is not to say, however, that the Tribunal should accept a fact stated in a s 37 statement unless that fact is disproved. Section 33 provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. The Tribunal will not rely upon a finding of fact set out in a s 37 statement unless it considers it appropriate to do so. It may, if a matter of practice or policy is stated in the reasons, think it appropriate to rely upon that statement or it may think it appropriate to require other evidence to be given of the practice or policy. The Tribunal has a wide jurisdiction and a course of action which may appear appropriate in one case may not be appropriate in another. The Tribunal is directed to proceed with as little formality and technicality and with as much expedition as a proper consideration of the matter before the Tribunal permits. The manner in which a particular review proceeds must depend upon particular circumstances of that review. (emphasis added)
It is plain from Davies J's reasons that his Honour held, relevantly, that:
(a)the AAT may, if appropriate, rely upon a finding of fact set out in the decision‑maker's reasons;
(b)if the decision‑maker has 'a special expertise or knowledge of facts in a particular area', it may well be appropriate for the AAT to rely upon findings of fact set out in the decision‑maker's reasons; and
(c)it will be relevant and appropriate for the AAT to have regard to the decision‑maker's reasons for decision if those reasons express a government policy or practice that is relevant.
It is also plain that his Honour did not state that the AAT may have regard or give weight to the decision (as distinct from the reasons for decision) of the decision‑maker in carrying out the review.
Davies J delivered judgment and published his reasons on 4 March 1981.
On 1 October 1981, a Full Court of the Federal Court (Fox, Deane and Morling JJ) delivered judgment and published their reasons in Collins v Minister for Immigration and Ethnic Affairs.[5] The hearing of the appeal occurred on 20 July 1981.
[5] Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407.
In Collins, the AAT affirmed a decision of the Minister to exercise his discretion under s 13(a) of the Migration Act 1973 (Cth) to deport the applicant. The Full Court of the Federal Court allowed the applicant's appeal because it was unclear whether the Deputy President of the AAT who heard and determined the applicant's application for review had placed weight on the Minister's decision to deport the applicant as distinct from the Minister's reasons for deciding to deport him.
The applicant made the application to the AAT for review of the Minister's deportation order after it was served on him. The Minister lodged a statement with the AAT in accordance with s 37 of the AAT Act, which set out the Minister's findings on material questions of fact and gave the reasons for his decision to issue the deportation order. The statement also referred to a relevant statement of government policy.
The Deputy President said in his reasons that, ultimately, 'it has to be decided what is in the best interests of the Australian community, a decision which will weigh up all relevant aspects with which this review has been concerned, and in arriving at a decision some weight is to be given to the Minister's decision … There may be cases where that decision should receive great weight or perhaps no weight … Here I consider the decision should have, and I do give it, some weight' (411).
Fox, Deane and Morling JJ observed that the Minister's decision, as set out in the deportation order, gave no reasons and was merely a statement to the effect that the Minister had exercised the power conferred upon him by the Migration Act (412). Their Honours said that the relevance of the deportation order was that it gave rise to a right to invoke the AAT's jurisdiction (412). However, the Minister's decision as embodied in the deportation order '[did] not have any further probative significance in the determination of the question whether, on the material before the [AAT], the decision was the correct or preferable one' (412).
Their Honours elaborated (412):
The [AAT] must … act in accordance with law and this requires it to form its own view on the merits of the case. Moreover, we do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the [AAT] because of the fact that the [AAT] is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the [AAT] may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the [AAT] is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight.
Unfortunately, the language used by his Honour in the present case leaves us in doubt as to whether, when referring to 'the Minister's decision', he was meaning to refer to the deportation order itself or to the process of reasoning adopted by the Minister in his s 37 statement (which incorporated the reference to government policy). As we have already indicated, the former approach would, in our opinion, manifest an error of law: the latter would not.
Fox, Deane and Morling JJ said that it would only be proper for them to dismiss the appeal 'if it did not appear that his Honour placed weight on the Minister's decision to deport an applicant as distinct from the s 37 statement' (413). On balance, their Honours were persuaded that the Deputy President's reference to the Minister's decision was a reference only to the decision to deport and was not a reference to the reasons embodied in the Minister's statement pursuant to s 37 of the AAT Act (413).
Their Honours concluded (413):
In the circumstances, there is no alternative to sending the matter back to the Tribunal for reconsideration. It cannot be said with confidence that the Tribunal would have come to the same conclusion if it had not placed any weight at all upon the Minister's decision to deport the appellant. That being so, the appellant is entitled to have his application for review redetermined without any weight being placed upon that decision. Accordingly, the appeal is allowed and the matter remitted to the Administrative Appeals Tribunal to be redetermined in accordance with these reasons.
In Shi v Migration Agents Registration Authority,[6] the Migration Agents Registration Authority (the Authority) cancelled the appellant's registration as a migration agent because he was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance. The appellant applied to the AAT for review of the cancellation decision, and for review of other decisions that the Authority had made about his registration as a migration agent. The appellant's appeal to the High Court concerned two questions about the AAT's review of the cancellation decision. First, was the AAT's task to decide whether, at the time the Authority made its decision, the correct and preferable decision was that the appellant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance or was the AAT's task to decide what was the correct or preferable decision at the time the AAT made its decision? Secondly, could the Authority (and could the AAT in exercising for itself the powers and discretions that are conferred by the Migration Act on the Authority) impose certain conditions on the appellant about his future conduct as a migration agent when it administered a caution to him? The High Court (Kirby, Hayne, Heydon, Crennan and Kiefel JJ) held unanimously that the AAT's task was to decide what the correct or preferable decision was at the time the AAT made its decision. Kirby, Hayne, Heydon and Crennan JJ (Kiefel J dissenting) held that the AAT was empowered by the Migration Act to impose the conditions it had attached to the caution it had administered to the appellant.
[6] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Kirby J examined the function of the AAT and in that connection referred in some detail to Davies J's decision in Re Control Investment. Relevantly, for present purposes, Kirby J made these observations [37] ‑ [38]:
Davies J acknowledged that regard might be had to the decision of the primary decision‑maker as part of the 'material before the [AAT]', particularly where it involved special expertise or knowledge ((1981) 3 ALD 88 at 92 ‑ 93). But ultimately, it was for the [AAT] to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the [AAT] as relevant to its decision. In effect, this was no more than a consequence of the [AAT's] obligation to conduct a true merits review (See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 368; 24 ALR 307 at 335).
There was no error in this analysis. On the contrary, it represents the correct and preferable view of the legislation establishing the functions and powers of the [AAT].
In my opinion, there is ambiguity in Kirby J's statement that in Re Control Investment, 'Davies J acknowledged that regard might be had to the decision of the primary decision‑maker as part of the "material before the [AAT]"' [37]. The ambiguity is whether Kirby J, in referring to the decision of the primary decision‑maker, was referring to the decision as distinct from the decision‑maker's reasons for decision. As I have demonstrated, in Re Control Investment Davies J did not state that the AAT may have regard or give weight to the decision (as distinct from the reasons for decision) of the decision‑maker in carrying out the review. Davies J referred to the AAT's approach to its task of determining what is the correct or preferable decision 'on the material before it' and said, 'the [AAT] may have regard to the findings of fact and the reasons for decision of the decision‑maker' (93). In my opinion, Kirby J, in stating that Davies J acknowledged that regard might be had to 'the decision of the primary decision‑maker', must be taken to have been referring to the decision‑maker's reasons for decision as distinct from the decision. Kirby J did not mention the decision of the Full Court of the Federal Court in Collins.
None of the other members of the High Court in Shi considered whether the AAT could have regard to the decision of the decision‑maker. It is therefore unsurprising that none of the other members cited Re Control Investment or Collins.
In the present case, as I have mentioned, the hearing before the Tribunal was a hearing de novo. The Tribunal's function was to produce the correct and preferable decision at the time of its decision upon the review. The Tribunal was bound to consider the material adduced at the hearing before the Tribunal and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.
I am of the opinion that, having regard to the Tribunal's function in carrying out a review of the Minister's decision, the Tribunal could not lawfully give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application. As Fox, Deane and Morling JJ said in Collins (411), it is 'unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness'. In the present case, there was no presumption that the Minister's decision was correct. Accordingly, the Minister's decision did not, in itself, carry any weight.
The Tribunal was, however, entitled, subject to the proper discharge of its function, to have regard to the reasons for decision of the Minister and any findings of fact in those reasons, if the Tribunal thought fit.
It is unnecessary, in the present case, to consider whether and in what circumstances the Tribunal may have regard to any practice or policy referred to in the reasons for decision of a decision‑maker or whether and in what circumstances the Tribunal may rely upon findings of fact in a decision‑maker's reasons for decision where the decision‑maker has special expertise or knowledge of facts in a particular area.
I turn to consider whether, in the present case, the Tribunal did give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application.
In the present case, the Tribunal noted in its reasons [152]:
We accept the Intervener's submission (Intervener's Opening Submissions para 123) that on the Review, the Tribunal may have regard to the Minister's decision as one which reflected what the Minister considered to be in the general interest of the community (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [47] [sic] (Kirby J) referring to Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 (Davies J)). (Of course, the Tribunal is not bound to follow the Minister's decision.) (emphasis added)
The Tribunal made this statement in the course of considering 'the general interest of the community' within s 18(3) of the AH Act [619]:
We take into account the Minister's decision, which was to refuse consent. We are not obliged to follow the Minister's decision. However, we consider that it warrants some weight in our evaluation of the general interest of the community, because it constitutes the opinion, formed by the Minister, as an elected Member of Parliament and as the Minister with responsibility for the operation of the AH Act, that the general interest of the community did not warrant consent being given to the use of the Land for the Purpose, namely the MARS project. (emphasis added)
The Tribunal concluded, after taking into account various specified considerations including the Minister's decision to refuse consent, that 'the general interest of the community' provided some support, but not to a compelling degree, for the implementation of the MARS project [631].
The Tribunal then said [632]:
In circumstances where:
(a)the ACMC formed the view that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;
(b)the implementation of the MARS project will have the permanent effect of interfering with the natural flow of the River, and will thereby alter the River as an Aboriginal site. It will also result in destruction of some of the artefacts found at the location of the proposed weirs, and will, over time, damage the Jiminu Pool Grinding Patches. Alteration of the River in this way will cause spiritual harm to the Thalanyji people in the manner we have described, and would be contrary to the underlying objective of the AH Act of preserving Aboriginal culture as part of the cultural heritage of the State;
(c)the Minister concluded, having had regard to the general interest of the community, that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;
(d)the considerations to which we have had regard as relevant to the general interest of the community provide some support, but not to a compelling degree, for the implementation of the MARS project;
we have concluded that the general interest of the community overall does not warrant consent being given to the use of the Land for the Purpose, namely the MARS project. (emphasis added)
The passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, reveal the Tribunal's view that it was entitled to take into account and give weight to the Minister's decision (as distinct from the Minister's reasons for decision) in evaluating 'the general interest of the community', within s 18(3) of the AH Act, and in deciding whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project. The Tribunal cited [47] of Kirby J's reasons in Shi in support of its view. The Tribunal's reference to [47] of Kirby J's reasons was erroneous. The relevant paragraph in his Honour's reasons is [37]. It appears that the Tribunal arrived at its view by taking literally and at face value Kirby J's reference in Shi [37] to 'the Minister's decision'. A literal and face value understanding of Kirby J's reference to 'the Minister's decision' is incorrect when the reasons of Davies J in Re Control Investment are scrutinised and regard is had to the reasons of the Full Court of the Federal Court in Collins. The Tribunal, like Kirby J, did not cite Collins.

The passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, also reveal that the Tribunal in fact took into account and gave weight to the Minister's decision (as distinct from the Minister's reasons for decision) in evaluating 'the general interest of the community', within s 18(3) of the AH Act, and in deciding whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project.
The Tribunal erred in law, in determining whether to give or refuse approval of the appellant's application, by giving weight to the Minister's decision to refuse consent under s 18(3)(b) of the AH Act.
I am satisfied, on a fair reading of the passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, in the context of the Tribunal's reasons as a whole and all relevant material before the Tribunal, that there is a real possibility that the error could have affected the decision. See Collins (413); Sydney Water Corporation v Caruso;[7] Development Consent Authority v Phelps;[8] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd;[9] Young v Legal Profession Complaints Committee.[10]
[7] Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 [8] ‑ [9] (Allsop P), [108] ‑ [109] (Tobias JA), [191] (Sackville AJA).
[8] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 [23] (Martin (BR) CJ, Mildren & Reeves JJ).
[9] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [94] ‑ [100] (Mitchell J).
[10] Young v Legal Profession Complaints Committee [2022] WASCA 52; (2022) 59 WAR 1 [222] (Buss P).
Ground 1 has been made out.

The orders this court should make in the appeal

Section 105 of the SAT Act provides, relevantly:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2)The appeal can only be brought on a question of law.
…
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal; or
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
In s 3(1) of the SAT Act, the term 'decision' of the Tribunal is defined to include 'an order, direction, or determination of the Tribunal'.
The power of this court under s 105(1) of the SAT Act to give leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board.[11]
[11] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA; Wheeler & Pullin JJA agreeing).
In the present case, I would give leave to appeal in relation to the question of law raised in the context of ground 1. The question concerns a matter of general importance in relation to the Tribunal's exercise of its review jurisdiction. Also, the Tribunal's view that it was entitled to take into account and give weight to the Minister's decision (as distinct from the Minister's reasons for decision) in carrying out its review was plainly wrong.
I would not give leave to appeal on the questions of law raised in the context of grounds 2, 3, 4, 5 and 6. Mitchell JA's reasons demonstrate that none of those grounds has been established.
The order made by the Tribunal on 18 April 2023 (namely, the Minister's decision, as recorded in the letter dated 25 March 2019, be affirmed) must be set aside.
This court may make substitutive orders under s 105(9) of the SAT Act 'where only one conclusion is open on the correct application of the law to the facts found by the Tribunal': Osland v Secretary, Department of Justice [No 2].[12] As French CJ, Gummow and Bell JJ noted in Osland [20], such a case arises 'when no other conclusion could reasonably be entertained' and, in that event, this court can make the order that the Tribunal should have made.
[12] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [20] (French CJ, Gummow & Bell JJ).
Although the language of s 105(9) is of sufficient breadth to allow this court to make substitutive orders in other circumstances, that power must be exercised having regard to the limited nature of this court's 'appellate' jurisdiction, which, as I have mentioned, is confined to appeals 'on' questions of law. See Young [296].
In Osland [20], French CJ, Gummow and Bell JJ elaborated on the points I have made at [78] ‑ [79] above, as follows:
Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment. (emphasis added)
See also Commissioner for Consumer Protection v Carey;[13] Medical Board of Australia v Woollard;[14] Scaffidi v Chief Executive Officer, Department of Local Government and Communities.[15]
[13] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [166] (Buss JA).
[14] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214] (Newnes & Murphy JJA), [273] (Mitchell JA).
[15] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205] (Buss P, Mitchell & Beech JJA).
In the present case, the Tribunal's error of law vitiated the Tribunal's evaluation of 'the general interest of the community', within s 18(3) of the AH Act, and its decision about whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project.
In part 5 of its original reasons, the Tribunal recounted and made detailed findings in relation to the evidence, including expert evidence, given by numerous witnesses at the hearing. I agree with Mitchell JA that none of those findings are impugned by the Tribunal's error of law.
The matter should be sent back to the Tribunal for reconsideration. It is not appropriate for this court to reconsider the matter. First, it is necessary for an evaluative judgment to be made concerning 'the general interest of the community'. Secondly, as I will explain, the parties should be given an opportunity at a further hearing to call additional evidence which could not reasonably have been adduced at the original hearing before the Tribunal.
I turn to consider whether the matter should be sent back to the Tribunal for reconsideration by the members who made the original decision.
Regrettably, there was a very significant delay between the appellant seeking the Minister's consent (on 20 July 2017) and the Tribunal ordering (on 18 April 2023) that the Minister's decision be affirmed. The ACMC took about 11 months to make its recommendation to the Minister. The Minister took about nine months to decline to give his consent. The original hearing before the Tribunal did not occur until about two years after the appellant lodged its application for review. The duration of the original hearing was seven days. The Tribunal reserved its decision for almost two years.
The appellant filed its appeal notice in this court in May 2023, the appeal was heard in March 2024 and judgment in the appeal will be delivered in August 2024. The reconsideration by the Tribunal is unlikely to occur before mid to late 2025.
If it is appropriate that the matter be sent back to the Tribunal as originally constituted, then in my opinion it would be in the interests of justice that:
(a)subject to [87] below, the Tribunal's reconsideration of the matter should proceed by reference to the detailed findings made in part 5 of the Tribunal's original reasons; and
(b)subject to [87] below, the parties should not be at liberty to recast their cases in relation to the findings of fact made by the Tribunal in part 5 of its original reasons.
However, if it is appropriate that the matter be sent back to the Tribunal as originally constituted, it would be in the interests of justice, in view of the very significant interval between the original hearing before the Tribunal (in March and June 2021) and the likely further hearing before the Tribunal (in mid to late 2025), for the parties to be given an opportunity at the further hearing to call additional evidence which could not reasonably have been adduced at the original hearing.
As I have mentioned, at the original hearing the Tribunal was constituted by President Pritchard, Dr S Willey, Senior Member, and Ms C Barton, Member. Dr Willey and Ms Barton are still a Senior Member and a Member respectively of the Tribunal, but President Pritchard's appointment expired on 3 June 2024. However, Justice Pritchard remains a Judge of the Supreme Court and is therefore eligible for appointment as a Supplementary President of the Tribunal pursuant to s 138 of the SAT Act.
If it is not appropriate that the matter be sent back to the Tribunal as originally constituted or if the Tribunal is unable to be constituted by the members who made the original decision, then in my opinion it would be in the interests of justice that the further hearing be a fresh hearing de novo. It will be necessary for the parties to call evidence, as they think fit, and for the newly constituted Tribunal to give its own decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review. The newly constituted Tribunal will be bound to consider the material adduced at the fresh hearing, to make findings of fact as necessary and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.
A decision about whether the matter should be sent back to the Tribunal for reconsideration by the members who made the original decision is not to be made simply by determining whether or not a fair‑minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgment if the original members conducted the further hearing. However, the principles governing disqualification on the ground of apprehended bias are relevant to the decision this court must make. The principles governing the disqualification of a judge on the ground of apprehended bias apply by analogy to the members of a statutory body such as the Tribunal who are to determine contentious proceedings. See CNY17 v Minister for Immigration and Border Protection;[16] Goldsmith v Legal Services and Complaints Committee.[17]
[16] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [55] and the cases there cited (Nettle & Gordon JJ).
[17] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [16] (Mazza & Mitchell JJA).
The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. See Webb v The Queen;[18] Ebner v Official Trustee in Bankruptcy;[19] Johnson v Johnson;[20] Michael Wilson & Partners Ltd v Nicholls;[21] CNY17 [17] ‑ [19], [56]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[22]
[18] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68 (Deane J).
[19] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
[20] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[21] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31] (Gummow A‑CJ, Hayne, Crennan & Bell JJ).
[22] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 [37] (Kiefel CJ & Gageler J), [67] (Gordon J), [162] (Edelman J), [274] (Jagot J).
The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question. The issue is one of possibility (real and not remote), not probability. See Ebner [7].
However, a judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless substantial grounds are established. See Re JRL; Ex parte CJL;[23] Bienstein v Bienstein;[24] British American Tobacco Australia Services Ltd v Laurie.[25]
[23] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).
[24] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36] (McHugh, Kirby & Callinan JJ).
[25] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [45] (French CJ), [71] (Gummow J).
Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. See Re JRL (352); Re Polites; Ex parte The Hoyts Corporation Pty Ltd;[26] British American Tobacco [1], [39], [71]; QYFM [328].
[26] Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).
The test for apprehended bias is objective. This is founded in the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice. See Johnson [12]; British American Tobacco [139]; Michael Wilson & Partners [32]; Isbester v Knox City Council;[27] QYFM [30], [71], [107], [273].
[27] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).
The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. See Isbester [20].
Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law or the judicial process, the observer is presumed:
(a)to be reasonable;
(b)to be neither complacent nor unduly sensitive or suspicious, but cognisant of human frailty and aware of the reality that the judge is human;
(c)not to make snap judgments;
(d)to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial;
(e)however, to understand that information and attitudes, consciously and conscientiously discarded, might still sometimes have a subconscious effect on even the most professional of decision‑makers; and
(f)to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.
See Livesey v The New South Wales Bar Association;[28] Laws v Australian Broadcasting Tribunal;[29] Re JRL (368, 371 ‑ 372); Webb (67 ‑ 68); Johnson [12] ‑ [14], [53]; Isbester [23]; Ebner [8]; CNY17 [28]; QYFM [46] ‑ [49], [72] ‑ [75], [170] ‑ [172], [296] ‑ [298].
[28] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 299 (Mason, Murphy, Brennan, Deane & Dawson JJ).
[29] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88 (Mason CJ & Brennan J), 95 (Deane J).
In Ebner [8], Gleeson CJ, McHugh, Gummow and Hayne JJ said that the application of the test for apprehended bias requires two steps. First, the identification of what allegedly might lead a judge to decide a case other than on its legal and factual merits. Secondly, the articulation of the logical connection between the matter complained of and any deviation from the course of deciding the case on its merits. The reasonableness of the asserted apprehension of bias can only be assessed after the two steps have been performed. See also Isbester [21]; CNY17 [21], [57]; QYFM [38], [67], [162], [293].
In Minister for Immigration and Multicultural Affairs v Jia Legeng,[30] Hayne J observed that an assertion that a decision-maker has prejudged or will prejudge an issue, or an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated:
First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[30] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185].
In Livesey, proceedings were commenced in the Court of Appeal of New South Wales to strike the name of a barrister from the roll of counsel on the ground of his unprofessional conduct. It was necessary for the Court of Appeal to determine certain matters of fact and to hear evidence from a witness in relation to them. In previous proceedings in which the barrister had not been a party or a witness, two members of the Court had expressed the view that the barrister had actively and knowingly participated in a corrupt agreement or a conspiratorial arrangement to secure the release of his client on bail by the use of the client's own money. It was common ground that such an agreement or arrangement would constitute a criminal conspiracy. In the Court of Appeal, objection was taken on behalf of the barrister to the two members of the Court sitting upon the case. The judges refused to withdraw. The Court of Appeal found that the charges of impropriety were sustained and ordered that the barrister be struck off. The High Court allowed the barrister's appeal. Mason, Murphy, Brennan, Deane and Dawson JJ held (300):
It is … apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. (emphasis added)

The facts and the reasoning which underpinned the High Court's decision to allow the barrister's appeal were as follows (300):
A central issue in the main charge against the appellant was whether the money which Ms Bacon lodged as bail was her own money. Two of the three members of the Court of Appeal, which was hearing the proceedings as a court of first instance, had already held in a previous case that it plainly was not. Another central issue in the main charge was whether, if the money lodged were not Ms Bacon's, the appellant knew that that was so. Again, two members of the Court had held in the previous case that he clearly did. Ms Bacon was a possible and critical witness on the appellant's behalf and was in fact called to give evidence. Two members of the Court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected. The question which arises is whether, in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon Case might result in the proceedings against the appellant being affected by bias by reason of prejudgment. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that that question must be answered in the affirmative.
In British American Tobacco [139], Heydon, Kiefel and Bell JJ observed that it was recognised in Livesey that a fair-minded lay observer might reasonably apprehend that 'a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case'. Their Honours added that the recognition in Livesey was 'a recognition of human nature' [139].
In the present case, I am of the opinion, for the following reasons, that the members of the Tribunal who reconsider the matter should not include any of the members who made the original decision.
First, there are factors which might lead the original members of the Tribunal to resolve the questions that will arise at the rehearing other than on their legal and factual merits. Those factors are the findings of fact made in part 5 of the original reasons; the evaluation of 'the general interest of the community', within s 18(3) of the AH Act, made in the original reasons; and the ultimate conclusion in the original reasons that, having regard to 'the general interest of the community', consent to the use of the land for the Proposed Works and the MARS project must be wholly declined.
Secondly, there is a logical connection between the factors I have identified and a real risk of a deviation from deciding the relevant questions on their merits. At a further hearing in the Tribunal before the original members, the first respondent (who is the Minister) and the second respondent (who was permitted to intervene in the original proceedings in the Tribunal on behalf of the Thalanyji people) would be likely to submit that the Tribunal should evaluate 'the general interest of the community' in the same manner that it did in the original reasons and that the Tribunal should arrive at the same ultimate conclusion that it did in the original reasons.
Thirdly, at a further hearing in the Tribunal before the original members, there is a significant prospect that one or more of the parties would call additional evidence which could not reasonably have been adduced at the original hearing. If that occurs, there is a significant prospect that it may be necessary, having regard to the substance of the additional evidence, for the original members to reconsider some of the findings they made in part 5 of the original reasons. If it is necessary for the original members to reconsider some of the findings they made in part 5, it is likely, in view of the very significant interval between the original hearing before the Tribunal (in March and June 2021) and the likely further hearing in the Tribunal (in mid to late 2025), that the original members would have an inadequate recollection (even with the benefit of the transcript) of the evidence that was given more than four years earlier.
Fourthly, although a fair‑minded lay observer is presumed to know that the original members of the Tribunal are required, by their training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial, the observer is also presumed to understand that the irrelevant, the immaterial and the prejudicial, which are consciously and conscientiously discarded, might nevertheless have a subconscious effect on the original members.
That risk is underscored, in the present case, by:
(a)the significant prospect that at the further hearing additional evidence will be called which could not reasonably have been adduced at the original hearing;
(b)if additional evidence is called, the significant prospect that it may be necessary, having regard to the substance of the additional evidence, to reconsider some of the findings made in part 5 of the original reasons;
(c)the very significant delay between the appellant lodging its application with the Tribunal (on 18 April 2019) and the Tribunal delivering its original decision and publishing its original written reasons (on 6 April 2023); and
(d)the interval between the Tribunal delivering its original decision and publishing its original written reasons (on 6 April 2023) and the likely rehearing date before the Tribunal (in mid to late 2025).
In the circumstances of the present case, there is at least an unacceptable risk that a fair‑minded lay observer might reasonably apprehend that the original members might not bring an impartial and unprejudiced mind, by reason of prejudgment, to the reconsideration of any of the findings in part 5 that require reconsideration, to the evaluation of 'the general interest of the community', within s 18(3) of the AH Act, or to the ultimate issue of whether 'the general interest of the community' warrants the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project. The existence of that unacceptable risk is sufficient, in the circumstances of the present case, for this court to decide, in the exercise of its power under s 105(10) of the SAT Act, that the members of the Tribunal who reconsider the matter should not include any of the members who made the original decision.
Finally, it is, of course, a deplorable result where a final judgment or decision of a court or tribunal is set aside after a lengthy hearing and a further trial or hearing is ordered. However, on occasion, including in the present case, the interests of justice require that result. I appreciate that ordering a further hearing, by way of a fresh hearing de novo, in the present case will impose a burden, including a burden as to costs, on the parties. However, it must be observed that the appellant evidently has substantial financial resources and has substantial experience in the litigation of disputes; the first respondent is the Minister who was the primary decision‑maker; and the second respondent by its senior counsel erroneously submitted to the Tribunal, on the basis of Kirby J's observation in Shi [37], that the Tribunal was entitled to have regard to the decision of the Minister in carrying out the review.

Conclusion

I would make orders to the following effect:
(a)Leave to appeal on ground 1 granted.

(b)Leave to appeal on grounds 2, 3, 4, 5 and 6 refused.
(c)Appeal allowed.
(d)The order made by the Tribunal on 18 April 2023 is set aside.
(e)The matter is sent back to the Tribunal for reconsideration at a further hearing in the Tribunal.
(f)None of the members of the Tribunal as originally constituted are to participate in the further hearing.
(g)The further hearing before the Tribunal is to be a fresh hearing de novo at which it will be necessary for the parties to call evidence, as they think fit, and for the Tribunal to give its decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review.

Counsel should be heard in respect of the precise form of the orders including costs.

MITCHELL JA:

Background and summary

The Ashburton River, also known as Mindurru to Buurabalayji Thalanyji people (Thalanyji), is a major river in the Pilbara region which runs through the appellant's Minderoo pastoral lease. The river flows in discrete 'pulses' after significant rainfall events within its catchment. These generally occur through the cyclone season (from January until May). The river is most likely to be dry between August and November.
The appellant's managed aquifer recharge scheme (MARS project) proposed to construct ten (later reduced to nine) 'leaky weirs' at varying intervals across the river as it passes through Minderoo station. The weirs are referred to as 'leaky weirs' because they are designed to allow water to 'leak' around and under them. The function of the weirs is to create a pool of water behind the weir which is absorbed into the adjacent groundwater mound. The objective of the MARS project is to enable greater water capture, which will then be put to productive and profitable agricultural uses at Minderoo (such as beef production and cropping).

The Tribunal found, without challenge in this appeal, that Mindurru occupies a central place in the belief system of the Thalanyji. The Thalanyji relationship to Mindurru is properly regarded as deeply spiritual, and Mindurru can be regarded as sacred to the Thalanyji.[31] The Thalanyji believe in the existence of the Warnamankura (water snake) as a powerful spirit which lives in Mindurru, which travels up, down and under Mindurru and can control the natural flow of Mindurru. The existence of semi-permanent pools in Mindurru is regarded by the Thalanyji as an enduring expression of the existence of the water snake. The Thalanyji believe that they need to engage in respectful behaviour near Mindurru in order not to make the water snake angry. The Thalanyji believe that if they allow changes that affect the water flow, this would change the natural balance of Mindurru, the water snake may become angry as a result, and that in turn may cause spiritual problems for the Thalanyji.[32]
[31] Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28 (primary decision) [203], [231] ‑ [232], [603] - [604].
[32] Primary decision [220].
No party to this appeal challenges the Tribunal's finding that Mindurru is an Aboriginal site for the purposes of the Aboriginal Heritage Act 1972 (WA) (AH Act). An alteration of an Aboriginal site constitutes an offence against s 17 of the AH Act unless, relevantly, it is done with the consent of the Minister under s 18 of the AH Act. The appellant sought the Minister's consent to use land for the MARS project by submitting a notice under s 18(2) of the AH Act to the Aboriginal Cultural Material Committee (ACMC). The ACMC is an advisory body established under the AH Act. Subsequently, the Minister declined to give consent to the proposed use of the land for the MARS project, pursuant to s 18(3) of the AH Act. The appellant sought a review of that decision by the State Administrative Tribunal. The Tribunal decided to affirm the Minister's decision. The appellant now appeals to this court against the Tribunal's decision on several questions of law, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
In determining whether to affirm the Minister's decision to decline to consent to the use of the land for the MARS project under s 18(3) of the AH Act, the Tribunal was required to have regard to the general interest of the community. In concluding that the general interest of the community overall did not warrant consent being given, the Tribunal gave weight to the fact that the Minister concluded that consent to use the land for the MARS project should be refused. Ground 1 of the appeal raises the following question of law: Could the Tribunal lawfully give weight to the decision under review?
For the following reasons, the answer to this question, at least in the circumstances of this case, is that the Tribunal may not lawfully give weight to the fact of the Minister's decision under s 18(3) of the AH Act, as opposed to any reasons expressed by the Minister for making that decision. The Tribunal may consider and agree with the process of reasoning adopted by the Minister in making the decision. However, the Tribunal will err in law if it treats the Minister's decision under s 18(3) of the AH Act as being probative of its own correctness. In the present case, the Tribunal erred in law in regarding the Minister's decision as probative of its own correctness. That error of law was material in the circumstances of this case. Ground 1 of the appeal is established.
While the appellant also challenged the Tribunal's decision on other grounds of appeal, none of those other grounds are established.
The success of ground 1 means that the appeal must be allowed and the Tribunal's decision to affirm the Minister's decision to decline to consent to the use of the land for the MARS project must be set aside. The matter must be sent back to the Tribunal for reconsideration. In the circumstances of this case, it is in the interests of justice for the matter to be reconsidered by the members who made the original decision. This court should direct that the Tribunal's reconsideration be based on:
(a)the extensive factual findings contained in pt 5 of the primary decision; and
(b)any other factual findings which the Tribunal makes by reference to the evidence adduced at the original hearing and/or such further evidence of matters arising since the original hearing as the Tribunal sees fit to receive.

Legislative context

The AH Act

Relevant version of the AH Act

The hearing before the Tribunal took place in March and June 2021. At the time of the hearing, the AH Act as amended up to 2013 was in force.
The Tribunal's decision was made on 6 April 2023. At that time, the Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act) had been enacted, but no presently material provisions had come into operation.[33]
[33] Section 340 of the 2021 Act introduced s 18(6) to the AH Act which provided for conditions to consent given by the Minister for notices given between 23 December 2021 and 1 July 2023, but this provision did not apply to the present matter where notice was given before 23 December 2021. Section 18(6) of the AH Act was repealed by s 14(6) of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) discussed below.
Substantive parts of the 2021 Act came into operation on 1 July 2023, and relevantly limited the application of the AH Act to notices given prior to that time. The 2021 Act was repealed by the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (2023 Act). The general effect of the 2023 Act was to restore the previous operation of the AH Act (as amended up to 2013) with various amendments which came into force on 15 November 2023.
Regard should be had to the AH Act as amended up to 2013 for the purposes of determining whether the Tribunal erred in law as alleged by the grounds of appeal. If the matter is remitted to the Tribunal, then it would be required to apply the current provisions of the AH Act, including those introduced by the 2023 Act.
Unless otherwise indicated, references to the AH Act are to the AH Act as amended up to 2013.

Objects of the AH Act

The long title to the AH Act identifies its purpose in the following terms:
An Act to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants, or associated therewith, and for other purposes incidental thereto.

Application of the AH Act

The AH Act applies to the places identified in s 5 (defined to be Aboriginal sites) and the objects identified in s 6 of that Act. Most presently relevant are the Aboriginal sites identified in s 5(a) and s 5(b) in the following terms:
(a)any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b)any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent[.]
There is no challenge in the present proceedings to the proposition that Mindurru is a site referred to in s 5(b) and six locations of 'artefact scatters' and one location of 'grinding patches' are sites referred to in s 5(a) of the AH Act. It is therefore unnecessary for this court to consider the limits of the operation of s 5 of the AH Act.

Administration

The responsibility for the administration of the AH Act is vested in the Minister, who is established as a body corporate. The Minister is required to have regard to the recommendations of the ACMC and the Registrar of Aboriginal Sites (Registrar) but is not bound to give effect to those recommendations.[34]
[34] Section 11 and s 11A of the AH Act.
The ACMC is an advisory body established under s 28 of the AH Act. It is comprised of appointed and ex officio members. The appointed members are selected from persons:[35]
having special knowledge, experience or responsibility which in the opinion of the Minister will assist the [ACMC] in relation to the recognition and evaluation of the cultural significance of matters coming before the [ACMC][.]
[35] Section 28(4) of the AH Act.
One of the appointed members is to be:[36]
a person recognised as having specialised experience in the field of anthropology as related to the Aboriginal inhabitants of Australia[.]
[36] Section 28(3) of the AH Act.
Officers of the WA Museum, the Department of Planning, Lands and Heritage, and Landgate are ex officio members of the ACMC.[37]

Offence creating provision

[37] Section 29 of the AH Act.

Section 17 of the AH Act relevantly creates an offence of altering an Aboriginal site without, relevantly, the consent of the Minister under s 18 of that Act. Section 17 is expressed in the following terms:
A person who —
(a)excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or
(b)in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site,
commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.

Obtaining consent to the use of land

Section 18 of the AH Act provides for the Minister to consent to the use of land. There are four stages to that process.
First, an owner of land (which under s 18(1) relevantly includes a lessee from the Crown) may give notice to the ACMC under s 18(2) (Notice) that:
[the owner] requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land[.]
Secondly, s 18(2) requires that, as soon as it is reasonably able after receiving a Notice, the ACMC must:
(a)form an opinion as to whether there is any Aboriginal site on the land; and
(b)evaluate the importance and significance of any such site.
Section 39(2) and s 39(3) of the AH Act relevantly make the following provision in relation to the ACMC's evaluation of an Aboriginal site:
(2)In evaluating the importance of places … the [ACMC] shall have regard to —
(a)any existing use or significance attributed under relevant Aboriginal custom;
(b)any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
(c)any potential anthropological, archaeological or ethnographical interest; and
(d)aesthetic values.
(3)Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place … for the purposes of this Act.

Similar considerations apply where an appeal court is determining whether to give directions for the hearing of further evidence having decided to send a matter back to the Tribunal for reconsideration. For example, where with the benefit of hindsight ‑ in the form of the Tribunal's reasons ‑ a party's case is not as fulsome as it might have been on a particular point, a successful appeal on a question of law under s 105 of the State Administrative Tribunal Act ought not ordinarily become the means to supplement the party's factual case. The interests of justice are seldom served by allowing a party free rein to recast or improve its case on a rehearing by adducing evidence that could and should have been presented at the original hearing.
In answering the appellant's submissions, senior counsel for the second respondent submitted that s 27(2) should be read as qualified by the power of this court under s 105(9)(c).[161]
[161] Appeal ts 154.
I do not construe s 27(2) as being qualified by s 105(9)(c). To say that one statutory provision qualifies another statutory provision suggests that the first provision has primacy and the other provision is subservient; it suggests that the first provision alters, limits or modifies the other provision. That is not an apt descriptor of the relationship between s 105(9) and s 27(2). Rather, in describing the purpose of a review proceeding, s 27(2) establishes the primary duty or obligation imposed on the Tribunal when exercising its review jurisdiction. The Tribunal's review is to produce the correct and preferable decision at the time of the decision on the review. In substance, on a merits review of a reviewable decision the Tribunal must make the correct and preferable decision on the basis of the materials before the Tribunal at the time the Tribunal hears the review proceedings. Those materials may, given s 27(1), include new material coming into existence after the decision-maker's decision and are not confined to materials that were before the decision-maker.
The duty or obligation under s 27(2) is necessarily to be performed in the context of the statutory regime provided for by the State Administrative Tribunal Act. That statutory regime includes s 105(9)(c). Where, on a rehearing following a successful appeal, the Tribunal's reconsideration is to occur without the hearing of further evidence, it remains incumbent on the Tribunal to produce the correct and preferable decision at the time of the decision on the review. However, the materials before the Tribunal at the time the Tribunal rehears the review proceedings will be confined to those admitted into evidence at the original hearing. The duty or obligation under s 27(2) is unchanged - it is simply that, by reason of the direction of the appeal court under s 105(9)(c), the duty or obligation is to be performed on the basis of the materials that were before the Tribunal on the original hearing.
While, for these reasons, I do not accept that s 27(2) is 'qualified' by s 105(9)(c), nor do I accept the appellant's submission that s 27(2)'s stipulation compels an appeal court to make a direction under s 105(9)(c) permitting the hearing of further evidence. That would see s 27(2) controlling s 105(9)(c). There is no foundation in the statutory text, context or purpose for that approach. To the contrary, in as much as it confers a power on a court, s 105(9)(c) is to be construed and applied as liberally as its terms and context permit. Section 105(9)(c) should not be read down on the basis that its application is controlled by s 27(2). That is all the more so when it is recalled that s 105(9) applies not only to appeals against a decision of the Tribunal in review proceedings but also to decisions made in the exercise of the Tribunal's original jurisdiction. It cannot be supposed that s 105(9)(c) is to be applied one way in the context of an appeal against a decision in the Tribunal's review jurisdiction and another way in the context of an appeal against a decision in the Tribunal's original jurisdiction.
It should be observed that this understanding of the relationship between s 105(9)(c) and s 27(2) is consistent with, and inexorably follows from, the proper construction and application of s 105(9)(c) (as to which see [273] above).

The orders this court should make

Having recited the parties' submissions and considered the relevant statutory framework in the context of those submissions it is convenient to determine the orders that should now be made by reference to the possibilities under s 105(9). It is logical to commence by considering and determining the orders to be made under s 105(9) and then, to the extent necessary, to consider and determine any question arising under s 105(10). Depending on the orders made under s 105(9) it may or may not be necessary to give a direction under s 105(10). Moreover, the appropriate direction under s 105(10) will be informed by the orders to be made under s 105(9).
Turning, then, to the orders to be made under s 105(9). First, in circumstances where the Tribunal's decision is legally erroneous by reason of the error the subject of ground 1, it is appropriate to set aside the Tribunal's decision pursuant to s 105(9)(a). As the decision is to be set aside the other alternatives under s 105(9)(a) fall away. Second, as to s 105(9)(b), this is not an appropriate case for this court to make a decision that the Tribunal could have made in the proceedings. The inquiry under s 18(3) of the Aboriginal Heritage Act involves a judgment based on considerations of public interest that is essentially 'factual, evaluative and ministerial' which - if it is to be determined - should be sent back to the Tribunal for reconsideration.[162] Third, consistent with the conclusion that this court should decline to make a substituted decision, it is appropriate in terms of s 105(9)(c) that the court send the matter back to the Tribunal for reconsideration.
[162] Osland v Secretary, Department of Justice [No 2] [20].
It should not be thought that where the court declines to make a substituted decision under s 105(9)(b) it must always send the matter back to the Tribunal for reconsideration under s 105(9)(c). There will be cases, perhaps rare, where the appropriate relief is limited to setting aside a legally erroneous decision. For example, in some cases there may be no utility in sending a matter back to the Tribunal for reconsideration. While, in the present case, the second respondent argued that leave to appeal should be refused because there was nothing preventing the appellant making a further application for ministerial consent, there was no suggestion that this possibility might provide a discretionary reason not to send the matter back to the Tribunal for reconsideration.
The next issue is what, if any, directions or recommendations should be made in sending the matter back to the Tribunal for reconsideration.
The purpose in sending the matter back to the Tribunal for reconsideration is to bring about the making of a decision according to law on the appellant's review application. Accordingly, first and foremost, this court must make any directions or recommendations as are necessary or appropriate to overcome and eliminate the legal error which has been found to infect the Tribunal's original decision. Nothing specific is required in the present case. This court's reasons for decision suffice to identify the error and to inform the Tribunal how it ought not to reason in its reconsideration. In reconsidering the matter the Tribunal must not give weight to the Minister's decision of 25 March 2019 to refuse consent under s 18(3)(b) of the Aboriginal Heritage Act.
Finally in terms of the orders under s 105(9), in sending the matter back to the Tribunal for reconsideration the appellant seeks an order that the Tribunal's reconsideration proceed with the hearing of further evidence.
The respondents oppose that order. The respondents say, in effect, that it suffices if the Tribunal as originally constituted now provides a legally correct decision on the basis of the facts as found on the evidence admitted in the original hearing. In this respect I, like Buss P and Mitchell JA, accept that the Tribunal's intermediate factual findings as recounted in pt 5 of the Tribunal's reasons are not impugned by the error of law the subject of ground 1. That is a powerful reason for proceeding as proposed by the respondents. So too it is plainly the case that the respondents' preferred form of orders is supported by some of the main objectives of the Tribunal in s 9 of the State Administrative Tribunal Act. Allowing the hearing of further evidence is inconsistent with acting as speedily as is practicable and minimising the costs to the parties. That is particularly the case where, as will be seen, the consequence of allowing the hearing of further evidence is to necessitate a rehearing that amounts to a fresh de novo hearing - a 'most deplorable result'[163] that 'inflicts great hardship on parties and witnesses'.[164]
[163] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [36], [122].
[164] Waterways Authority v Fitzgibbon [135].
Ultimately, however, I am persuaded that the interests of justice in the circumstances of this particular case require that the parties be afforded the opportunity of the matter being reconsidered with the hearing of further evidence.
The passage of time since the original hearing in the Tribunal means that it is highly likely that there is additional probative evidence that will have become available to the parties, such evidence having come into existence after the conclusion of the original hearing. The original hearing was concluded more than three years ago. Since that time it is to be expected that additional probative evidence informing the general interest of the community will have arisen. Certainly there is no evidence by which it could be concluded that there has not been a material change in the circumstances pertaining to the general interest of the community.
Largely, but not exclusively, at the original hearing the appellant advanced a case that the economic benefits of the MARS project were such that it was in the general interest of the community to grant consent. The potential benefits were broken down into six different groupings. The Tribunal addressed the evidence admitted at the original hearing, making numerous findings, in pt 5.4 of its reasons. At the appeal hearing senior counsel for the appellant (who was senior counsel for the appellant in the review proceedings before the Tribunal) informed the court that there were subsequent developments in at least one of those matters which the appellant would seek to bring to the attention of the Tribunal.[165] A statement to this effect by senior counsel should be given weight unless it is unreasonable or improbable. There is nothing unreasonable or improbable in senior counsel's statement. To the contrary, having reviewed the Tribunal's recitation of the evidence and having considered the Tribunal's findings as set out in pt 5.4 of the Tribunal's reasons, I am satisfied that it is highly likely that additional probative evidence will have arisen on many of these subjects since the original hearing in the Tribunal. To state the obvious, that additional probative evidence is evidence that could not reasonably have been adduced at the original hearing.
[165] Appeal ts 170 - 171.
This is a very unusual case. It is very unusual for this court to be sending a matter back to the Tribunal for reconsideration more than three years after the original hearing. In these circumstances ‑ and being satisfied that the passage of time means that it is highly likely that there is additional probative evidence now available relevant to an inquiry as to 'the general interest of the community' ‑ it is in the interests of justice that the Tribunal's reconsideration of the matter proceeds with a hearing of further evidence. I am of this view despite the powerful countervailing factors relied on by the respondents. It is, in my opinion, necessary to give substantial weight to the main objective that the Tribunal review decisions fairly and according to the substantial merits of the case.
My conclusion that the Tribunal's reconsideration ought to proceed with the hearing of further evidence has implications for the constitution of the Tribunal on the reconsideration.
Section 105(10) of the State Administrative Tribunal Act requires that this court give directions about whether in reconsidering the matter the Tribunal is to be constituted by the members who made the original decision. In some ways this is a curious provision. It might have been thought that the Tribunal is well placed to organise its own affairs and determine whether a reconsideration by the Tribunal as originally constituted will be lawful and appropriate. Indeed, as in the present case the Tribunal will be able to make that determination based on a fuller understanding of the additional evidence to be relied on at the reconsideration of the matter, it might be thought that the Tribunal will be better placed than this court to determine how it ought to be constituted. Be that as it may, the legislature has determined that the question should not be left to the Tribunal. It is necessary that this court make a determination.
The Tribunal must implement any direction that the reconsideration of a matter is to be by the Tribunal differently constituted. Difficulties may arise, however, if an appeal court directs that the reconsideration is to be by the Tribunal as originally constituted. It may not be possible to reconstitute the Tribunal by the same members. Alternatively, issues may emerge which are not apparent at the time that the question under s 105(10) is considered by the appeal court. Accordingly, where an appeal court is satisfied that there should not be an exclusionary direction, it is ordinarily prudent to direct that the reconsideration of the matter may be by the Tribunal as originally constituted. The ultimate constitution of the Tribunal is then in the hands of the Tribunal.
The making of a direction under s 105(10) involves a broad discretion. In other contexts it is said that the court's power to remit a matter to a different judicial officer is to be exercised 'sparingly'.[166] In the context of s 105(10) the discretion requires an appeal court to assess what best facilitates the interests of justice ‑ including, in this respect, the appearance of justice.[167] Accordingly, while a reasonable apprehension of bias on the part of the Tribunal as originally constituted will commonly provide a reason for an appeal court to direct that the reconsideration be by the Tribunal differently constituted, the inquiry is not limited by that consideration.
[166] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 [12].
[167] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S) [13], [23]. See also: Seltsam Pty Ltd v Ghaleb [12] - [13], [17], [141], [239]; McKay v Commissioner of Main Roads [2013] WASCA 135, [362] - [366].
Indeed, it will often not be possible for an appeal court to state definitively whether there will be a reasonable apprehension of bias if the reconsideration proceeds before the Tribunal as originally constituted. Where the reconsideration is to proceed with the hearing of further evidence whether or not there will be a reasonable apprehension of bias may not become clear until the parties file their additional evidence and there is a full exposition of the issues for determination. In such a case the question raised by s 105(10) should be assessed in terms of whether there is an unacceptable risk of reasonable apprehension of bias such that it is in the interests of justice that the reconsideration be by the Tribunal differently constituted. This allows the issue to be approached as a matter of impression as opposed to the more detailed consideration which commonly will be applicable to a recusal application.
The present appeal involves a case of the kind referred to in the preceding paragraph. For the reasons I have given the Tribunal's reconsideration of the matter must allow for the hearing of further evidence. There is at least a reasonable likelihood that such further evidence may impact on the continued validity of the findings that the Tribunal made in pt 5.4 of its reasons as to the general interest of the community. In the circumstances, as Buss P's reasons demonstrate, there is an unacceptable risk of reasonable apprehension of bias if the reconsideration of the matter is conducted by the Tribunal as originally constituted. It follows that it is in the interests of justice that the reconsideration of the matter be by the Tribunal differently constituted.
This point having been reached it becomes necessary that the Tribunal's reconsideration of the matter be by way of a rehearing that amounts to a fresh de novo hearing.
In adversarial litigation it is sometimes possible to order that a new trial be limited to certain issues. Even there, however, the starting point is generally that if there is to be a new trial it ought to be of the case as a whole unless the court considers that it will do more injustice by setting the matter at large again.[168] While, no doubt, many persons in review proceedings in the Tribunal conduct themselves as if they are involved in adversarial litigation, the proceedings are not adversarial in the same sense as inter partes curial litigation. That is evident from s 27(2) of the State Administrative Tribunal Act. In this respect it is dangerous to seek analogies in the field of adversarial litigation.[169]
[168] Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521, 527; Waterways Authority v Fitzgibbon [119], [181].
[169] Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 [17] - [18].
I have considered whether it might be directed that the reconsideration be based on the factual findings contained in pt 5 of the Tribunal's reasons. This would have considerable benefits in terms of time, cost and inconvenience to the parties and the witnesses. There are two reasons why I consider this possibility to be inappropriate. First, to the extent that the further evidence impacts on the continued validity of the findings that the Tribunal made in pt 5.4 of its reasons as to the general interest of the community, there will be great difficulty for the Tribunal in navigating between the direction and its duty or obligation under s 27(2) of the State Administrative Tribunal Act. Second, assuming that some solution can be found to the first problem, the Tribunal as reconstituted will be called on to make further intermediate factual findings (including, depending on the further evidence, perhaps making substituted findings on one or more of the six groups of potential benefits mentioned in pt 5.4 of the Tribunal's reasons) where the members of the Tribunal did not see and hear the witnesses give the evidence that resulted in the original findings. That will present real difficulties for fact finding on the Tribunal's reconsideration of the matter.
I have noted the appellant's suggestion that the Tribunal's reconsideration of the matter might be confined by sensible agreement between the parties (see [265] above). In forming my view on the orders that should be made pursuant to s 105(9) and s 105(10) of the State Administrative Tribunal Act I have not relied on or given any weight to that suggestion. It may prove no more than a pious hope. I would, however, encourage the parties to consider carefully the evidence admitted at the original hearing, and the findings made by the Tribunal, with a view to reducing the burden of the rehearing. It should, for example, be possible for the parties to agree many factual matters, thus obviating the need to call all of the evidence that was admitted at the original hearing.

Conclusion and orders

For these reasons I agree with the orders proposed by Buss P. Counsel for the parties should be heard on the precise form of the orders. Counsel should also be heard on the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
9 AUGUST 2024