Kelaray Pty Ltd v Dare

Kelaray Pty Ltd sought judicial review of a decision by the Minister for Aboriginal Affairs and Reconciliation to grant an authorisation under section 23 of the Aboriginal Heritage Act (AHA) for exploration activities on Lake Torrens, South Australia. The dispute concerned whether the Minister had properly considered the heritage significance of the area and whether the authorisation was granted on the basis of reasonable expectations rather than binding conditions. The matter was heard on appeal by Livesey P, Doyle and Bleby JJ.

The court was required to determine whether the primary judge erred in finding that the Minister had failed to properly consider the heritage significance of the area and had treated certain measures as mere expectations rather than conditions precedent to the grant of the authorisation. Specifically, the court had to assess whether the Minister's understanding of the distinction between conditions and expectations was legally sound and whether this understanding impacted the validity of the authorisation.

The appellate court found that the primary judge's reasoning was sound. It held that once it was accepted that the Minister understood the distinction between conditions and expectations, it could not be said that the Minister regarded compliance with measures that were the subject of expectations, rather than conditions, as fundamental to the decision to grant the authorisation. Therefore, the court was not satisfied that any of the grounds for challenging the validity of the authorisation had been made out.

Consequently, the appeal was allowed, and the notice of alternative contentions was dismissed. The primary judge's orders, which had allowed the application for judicial review and set aside the Minister's decision to grant the authorisation, were set aside.