Newchurch v Minister for Aboriginal Affairs and Reconciliation

[2011] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal from a Master: Application for Judicial Review)

NEWCHURCH v THE MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION

[2011] SASC 29

Judgment of The Honourable Chief Justice Doyle

3 March 2011

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - DELEGATION OF POWER

ABORIGINALS - HERITAGE PROTECTION - SOUTH AUSTRALIA

ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - PARTICULAR CASES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXISTENCE OF OBLIGATION - GENERALLY

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - ADMINISTRATIVE MACHINERY OF GOVERNMENT - MINISTERS OF STATE - DELEGATION OF POWERS

Application for judicial review – Minister revoked an authorisation issued pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) (Act) – Minister issued a second authorisation pursuant to s 23 of the Act – Minister refused to delegate powers under the Act – requests for delegation not made by plaintiff – whether plaintiff has standing to challenge Minister’s decision to refuse to delegate powers pursuant to s 6 – whether plaintiff a traditional owner of the site – whether Minister had power to revoke an authorisation under s 23 – whether s 13 applies to a decision to revoke an authorisation under s 23 – whether Minister required to observe procedural fairness before revoking authorisation – whether plaintiff was affected as an individual – whether plaintiff can seek relief on behalf of another – whether Minister required to notify the traditional owners of the request to revoke the authorisation – whether Minister could not exercise powers under s 23 until request to delegate powers dealt with – whether Minister consulted adequately pursuant to s 13 in relation to the second authorisation – whether Minister under a duty to consult with plaintiff – whether Minister discharged obligation to consult with the traditional owners – whether relief should be declined because of delay and prejudice – proceedings dismissed.

Aboriginal Heritage Act 1988 (SA) s 3, s 5, s 5(1)(a), s 5(1)(d), s 6, s 6(1), s 6(2), s 6(3), s 6(4), s 9(2), s 9(3), s 11(a), s 11(b), s 12, s 12(2)(b), s 12(3), s 12(4), s 13, s 13(1), s 13(1)(a), s 13(1)(f), s 13(2), s 13(3)(a), s 13(3)(b), s 14, s 15, s 21, s 23, s 23(c)(ii), s 24(8), s 29, s 32(1)(a), s 34, s 35, s 42; Aboriginal and Torres Straight Islander Heritage Protection Act 1984 (Cth); Acts Interpretation Act 1915 (SA) s 37; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Annetts v McCann (1990) 170 CLR 596; Kioa v West (1985) 159 CLR 550, considered.

NEWCHURCH v THE MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION
[2011] SASC 29

Application for Judicial Review

1. DOYLE CJ:         Mr Newchurch is a Kaurna elder.  He has brought proceedings by way of judicial review challenging the validity of a number of decisions made by the Minister for Aboriginal Affairs and Reconciliation (“Minister”) under the Aboriginal Heritage Act 1988 (SA) (“Act”). The decisions by the Minister concern the site on which the new Royal Adelaide Hospital and South Australian Health and Medical Research Institute (“SAHMRI”) will be built.

2. In particular, Mr Newchurch challenges a decision by the Minister to revoke an authorisation (“the First Authorisation”) granted by the Minister under s 23 of the Act (“the Revocation Decision”), and a decision by the Minister to refuse to delegate powers under s 23 of the Act to the traditional owners of the site (“the Delegation Decision”). He also challenges a second authorisation (“the Second Authorisation”) granted by the Minister about six weeks after she had revoked the First Authorisation.

3. With respect to the Revocation Decision, Mr Roder SC, counsel for Mr Newchurch, argues that the Minister did not comply with s 13 of the Act because she did not consult with any of the persons mentioned in that section, including the “traditional owners” of the site. In the alternative, he argues that the Minister, in making the Revocation Decision, was required to accord procedural fairness to Mr Newchurch, but she did not do so.

4. In relation to the Delegation Decision, Mr Roder argues that the Minister was obliged, pursuant to s 6(2) of the Act, to delegate the powers under s 23 of the Act to the traditional owners upon their request. The request to the Minister was made by the Kaurna Nation Cultural Heritage Association Inc. (“KNCHA”), formerly known as the Kaurna Heritage Board (“KHB”). There is an issue as to whether Mr Newchurch can seek relief on behalf of KNCHA.

5. With respect to the Second Authorisation, Mr Roder argues that this authorisation is invalid on a number of grounds, including that it could not be granted unless the First Authorisation had been validly revoked; that the Act did not confer any power on the Minister to authorise damage to Aboriginal remains, or disturbance or removal of any Aboriginal objects or remains; that the Minister failed to comply with the statutory obligations under s 13(1) of the Act to take all reasonable steps to consult with the persons specified in s 13(1); that in failing to consult adequately the Minister failed to accord Mr Newchurch procedural fairness; and that the Minister’s mind was not open to persuasion on the issue of whether certain conditions should be imposed.

6. Mr Newchurch seeks a declaration that the Minister’s decision to revoke the First Authorisation was invalid.  He also seeks a declaration that the Delegation Decision was invalid, an order quashing the Delegation Decision, and an order requiring the Minister to determine the delegation application according to law.  Further, he seeks a declaration that the Second Authorisation granted by the Minister was invalid, and an order quashing the decision to grant the Second Authorisation. 

7. Originally the matter came before me as an appeal against a decision by a Master refusing permission to proceed. There were some difficulties with the proceedings as they stood.  In the end, without opposition from Mr Hinton QC SG, counsel for the Minister, I gave permission for the summons to be amended so as to raise the questions now before me.  There was no point in referring the matter to a Master for consideration of leave to proceed on the amended grounds.  It was convenient for me to deal with that.  The parties did not wish the matter to be referred to the Full Court.  They were content for me to hear and determine the proceedings.

8. Accordingly, I gave permission to proceed in relation to the Revocation Decision and the making of the Second Authorisation. I then heard argument on the challenge to those decisions, and also on the question of whether I should grant permission to proceed in relation to the challenge to the Delegation Decision. I did so on the basis that if I proposed to grant permission, the application for permission would be treated as the hearing of the application for judicial review.

9. All of this was done in the interests of expedition and economy.

10. Before considering whether Mr Newchurch is entitled to the relief he has sought, it is necessary for me to first outline the provisions of the Act under which the Minister acted. I will then summarise the relevant facts. Then I will deal with the submissions advanced on behalf of Mr Newchurch.

    Statutory Provisions

11. The Act provides for the protection and preservation of Aboriginal heritage. By s 5(1)(a) the Minister is “to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains”. In particular, the Act provides for the protection of Aboriginal sites, objects and remains. One way it does this is by prohibiting damage to, disturbance of or interference with any Aboriginal site or object without an authority issued by the Minister. Section 23 makes engaging in such conduct without an authority or authorisation an offence. It states that:

    23 – Damage etc to sites, objects or remains

    A person must not, without the authority of the Minister –

    (a)     damage, disturb or interfere with any Aboriginal site; or

    (b)     damage any Aboriginal object; or

    (c)     where any Aboriginal object or remains are found –

    (i)disturb or interfere with the objects or remains; or

    (ii)remove the object or remains.

    Maximum penalty:

    (a)     in the case of a body corporate – $50,000;

    (b)     in any other case – $10,000 or imprisonment for 6 months.

    The Minister may give such an authorisation on such conditions as the Minister considers appropriate: s 14.

12. Aboriginal site is defined in s 3 as:

    Aboriginal site means an area of land –

    (a)that is of significance according to Aboriginal tradition; or

    (b)that is of significance to Aboriginal archaeology, anthropology or history,

    and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition.

    A similar definition of “Aboriginal object” is contained in s 3.

13. The Minister is required to consult with certain people and groups before giving an authorisation, such as an authorisation pursuant to s 23. This requirement is imposed by s 13, which states:

    13 – Consultation on determinations, authorisations and regulations

    (1)The Minister must –

    (a)     before making a determination under this Act; or

    (b)     before giving an authorisation under this Act; or

    (c)     before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object,

    take all reasonable steps to consult with -

    (d)     the Committee; and

    (e)     any particular Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and

    (f)     any –

    (i)traditional owners; and

    (ii)other Aboriginal persons,

    who, in the opinion of the Minister, have a particular interest in the matter.

    (2)When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.

    …

    An authorisation given pursuant to s 23 is not one of the authorisations exempted from the operation of s 13 by s 13(3)(b). Therefore, before the Minister gives an authorisation pursuant to s 23, the Minister is required to consult on that authorisation in accordance with s 13.

14. Under s 11(a), a site or object will be conclusively presumed to be an Aboriginal site or object if it is entered in the Register of Aboriginal Sites and Objects, which is kept by the Minister pursuant to Part 2 of the Act. Section 12 governs the determination of whether a site or object is an Aboriginal site or object. Section 12(3) states that:

    (3)If a person proposes to take action in relation to a particular area and that action may constitute an offence against this Act if the area is, is part of or includes an Aboriginal site or if an Aboriginal object is located in the area, the person may apply to the Minister under this section.

    On an application under s 12(3), the Minister must, pursuant to s 12(4):

    (a)determine whether any entries should be made in the Register of Aboriginal Sites and Objects in relation to sites or objects in the area that are not so entered and give the applicant written notice of the determination; or

    (b)subject to subsection (5), give the applicant written notice of the location of each Aboriginal site or object in the area that is entered, or that the Minister has determined should be entered, in the Register.

15. The functions of the Minister are set out in broad terms in s 5. In particular, the Minister is required to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains: s 5(1)(a). The Minister is also required to carry out any other function assigned to the Minister under the Act: s 5(1)(d).

16. Section 6(1) allows the Minister to delegate any of the Minister’s powers under the Act, other than the power to authorise the commencement of proceedings for an offence against the Act. By s 6(2), the Minister must, at the request of the traditional owners of an Aboriginal site or object, delegate the Minister’s powers under s 21 (power to authorise excavation), s 23 (see above), s 29 (power to authorise the sale or removal of an Aboriginal object), and s 35 (power to authorise disclosure of information) to the traditional owners of the site or object. The Minister cannot revoke a delegation under s 6 without the consent of the traditional owners: s 6(4).

17. The definition of “traditional owner of an Aboriginal site or object” is contained in s 3:

    traditional owner of an Aboriginal site or object means an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object. 

    “Aboriginal tradition” is defined by s 3 as follows:

    Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation.

18. Section 6(3) sets out the requirements for a delegation under s 6. It states that:

    (3)A delegation under this section –

    (a)     must be in writing; and

    (b)     may be subject to such conditions as the Minister considers appropriate; and

    (c)     may authorise the sub-delegation of a specified power; and

    (d)     if made to the holder of a specified office or position, empowers any person holding or acting in the office or position to exercise the delegated powers; and

    (e)     is revocable at will; and

    (f)     does not prevent the Minister from acting personally in any matter.

19. Only a traditional owner of an Aboriginal site or object is entitled to question the validity of an act or determination of the Minister on the ground that there has been a failure to comply with a requirement of the Act as to consultation with traditional owners, or as to the obtaining of approval from, or the stipulation of conditions by, traditional owners: s 42.

20. Finally, it should be noted that pursuant to s 15 the Minister may appoint suitable persons to be “inspectors” for the purposes of the Act: s 15. Any appointment must be in writing, and the Minister may limit the area in which the inspector may act, as well as restrict the powers the inspector may exercise and authorise the inspector to give instructions in relation to a particular Aboriginal site or object: s 15(1) and s 15(2).

21. Thus the Act establishes a regime whereby the Minister is required to consult with any traditional owners, Aboriginal organisations or persons who, in the opinion of the Minister, have a particular interest in the grant of an authorisation under s 23 of the Act, before granting such an authorisation. Without an authorisation under s 23 it is an offence to damage, disturb or interfere with any Aboriginal site or object. Further, pursuant to s 6(2), the Minister must delegate the Minister’s powers under s 23 to the traditional owners of the site or object if they so request.

    A summary of the dispute

22. The dispute relates to the protection of any Aboriginal object (as defined) and any Aboriginal remains (as defined) that might be found beneath the surface of the land on which the new Royal Adelaide Hospital and SAHMRI are to be built.  The Minister and the Kaurna people with an interest in the matter seem to have agreed that the appropriate way of protecting any such objects and remains was by having monitors (provided by the Kaurna people) during excavation work on the site.  The dispute now before me relates to the SAHMRI site in particular.  Work has not yet begun on the hospital site.  The First Authorisation for excavation works, which might disturb significant objects and remains, required the attendance of monitors.  KNCHA and the Minister negotiated over an agreement covering the provision of monitors, provision of information, payment by the Minister to the monitors and other things.  But in the end they failed to reach agreement.  Perhaps too much was expected on each side.  The arrangement for the attendance of monitors, pending the reaching of an agreement, collapsed.  No doubt KNCHA considered that it acted reasonably, and no doubt the Minister did also.  Each blames the other.  It is not for me to decide who is at fault.  The fact is, the arrangement broke down.  The Minister for Health faced a situation in which the excavation could not proceed because monitors required to ensure compliance with the authorisation were not available.   Accordingly, the Minister for Health applied to the Minister asking the Minister to revoke the First Authorisation and to give a further authorisation without any condition as to monitors.  The Minister did this.

23. While all this was happening, on a number of occasions the KHB and then KNCHA asked the Minister to delegate relevant powers under the Act to KNCHA or to the traditional owners, pointing out that under s 6 of the Act the Minister was obliged to delegate powers to the traditional owners of the site or of any objects on it. The Minister declined to do so.

24. That, in a nutshell, is the dispute before me and the context in which it arises.

    Facts

25. The trial proceeded before me on affidavit evidence tendered by consent.  While there were a small number of objections to parts of some affidavits, these were resolved by counsel agreeing to exclude the relevant portions of these affidavits.  Neither side wished to cross examine any of the deponents.  Accordingly, no oral evidence was given. 

26. It is necessary for me to set out the facts in some detail, particularly the facts relating to the provision of monitors and the contention that the Minister did not consult adequately on certain issues, in order to place in context the decisions of the Minister.

27. I make the following findings of fact relating to the dealings between KNCHA, the Minister and the Minister for Health.  I cannot, and do not, decide on the disputes alluded to in the course of those dealings.

28. As part of the 2007/2008 Budget the Executive Government announced plans to replace the Royal Adelaide Hospital currently located at the eastern end of North Terrace.  The new hospital was to be located in a “hospital precinct”, which would include the SAHMRI. 

29. Sometime in 2007 the Government decided to build the new hospital, SAHMRI and associated facilities on the site of existing rail yards situated at the western end of North Terrace, between the northern side of Port Road and West Terrace, and the southern bank of the River Torrens.  The land is comprised in Certificate of Title Volume 5522 Folio 11, but it does not take up all of the land within that title.  The new hospital precinct will take up allotments 10, 20, 30 and 60, with the SAHMRI to be constructed on allotment 30.  The SAHMRI site requires excavation of up to eight metres in depth.  A separate area, allotment 40, will continue to be used for railway purposes.

30. The new hospital precinct has been used for a long time for railway purposes.  A maintenance depot was constructed there around 1918.  Much of the site is covered by rail yards, rail tracks, roadways, car parks and maintenance facilities for trains and railcars.  Prior to being used as a rail yard, the precinct was used for a number of other purposes including as a quarry, a tar depot, and a place for sheep and cattle markets. 

1. The land adjacaent to the River Torrens, including the hospital precinct, has also been used by Aboriginal people.  The Kaurna people are original inhabitants of the Adelaide plains, and they used the precinct (in particular, the River Torrens and the land adjacent to it) before and after European settlement.  Mr Hinton does not dispute this, although he submits that no finding can be made that the Kaurna people are the only original inhabitants of the Adelaide plains, or that they are the only original inhabitants of the site. 

2. The Minister does not dispute that the hospital precinct is part of the traditional land of the Kaurna people, and that it was used as a traditional camping, ceremonial, and burial ground.  There is a dispute as to the extent to which the site was used by the Kaurna people, and whether Kaurna remains and artefacts are likely to be found on the site.  

3. There is evidence before me that the Kaurna people believe that the spirits of the dead are present and active, and that interference with their burial grounds will cause detriment to their ancestors’ spirits and to living descendants.  Kaurna people believe that they are custodians of their traditional land and that that land cannot be separated from their culture.  I am not in a position to decide whether Kaurna implements, artefacts, tools and remains are likely to be found in the soil of the land in question.  It seems to be common ground that if they are there they will be found in alluvial soils close to the River Torrens and, fairly deep down, in any undisturbed sections of Holocene and Pleistocene soils in the southern part of the precinct, that is, closer to North Terrace and Port Road.  The Kaurna people believe that objects and remains are likely to be discovered.  The Minister thinks this is unlikely.  No objects or remains have been found so far.  But, as I have said, there is no need for a decision on likelihood, nor am I in a position to make one.

4. Nonetheless the hospital precinct is significant to the Kaurna people and to the Government.  It is significant to the Government because it is where it wishes to build the new Royal Adelaide Hospital and the SAHMRI.  It is significant to the Kaurna people because it is one of the few remaining sites of significance to them in the Adelaide area which has not been built on.  In a general way, the Minister accepts that the hospital precinct is on land that is significant to the Kaurna people.

5. In 2008 negotiations commenced between Mr Walker, a director of Major Projects at SA Health and Project Director for the SAHMRI project, who has amongst other things day to day responsibility for the site, and representatives of the Kaurna people.  It is not clear to me what these initial negotiations covered.  Mr Walker attended a meeting of the Kaurna Native Title Management Committee (“KNTMC”) on 16 May 2008 to inform the Kaurna of the proposed new Royal Adelaide Hospital and of proposals relating to the hospital precinct.  In conjunction with the Kaurna people he commissioned Ms Harris to prepare an anthropological report on the site. In March 2009 Ms Harris provided a background research paper, which was prepared with the assistance of two Kaurna people.

6. Initially negotiations took place between Mr Walker and KNTMC.  In the latter part of 2008 SA Health was advised by the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet (“AARD”) that it was more appropriate to deal with the KHB.  The KHB changed its name to KNCHA in September 2009.

7. In October 2008 it was decided that SA Health should consider applying for an authorisation from the Minister under s 23 of the Act. Mr Walker stated in his affidavit that he advised both KNTMC and the KHB of the possibility of an application under s 23 of the Act. According to Mr Walker, an application under s 23 was considered by SA Health because of “continuing uncertainty in Kaurna management and time pressures” (Exhibit D10 at [22]).

8. On 27 April 2009 the Minister for Health applied to the Minister for an authorisation pursuant to s 23 of the Act in respect of the site of the new hospital precinct. According to Mr Walker the “leaders” of the KHB and KNTMC were advised of the application (Exhibit D10 at [23]). It is not clear whether they were given a copy of the application, nor is it clear whether they were informed that the Minister for Health was seeking authority to damage, disturb or interfere with Aboriginal remains (Exhibit P1 at [16]).

9. On 14 May 2009 Mr Campbell emailed Mr Walker stating that he acted as solicitor for the KHB and that the KHB would like to enter into “a number of agreements with the Department of Health” regarding the new Royal Adelaide Hospital development (Exhibit D10, DGW 1 p.7). 

10. Meanwhile, the Minister acknowledged receipt of the Minister for Health’s application in a letter to the Minister for Health dated 10 June 2009.  In that letter the Minister asked that (Exhibit D11, DAS 2):

    …SA Health engage an expert to conduct an on-ground cultural heritage survey with Kaurna participants and produce a report to be used as the basis for the consultation process that is required under section 13 of the Act.

    As a result, SA Health commissioned Dr Draper from Australian Cultural Heritage Management Pty Ltd (“ACHM”) to prepare a “cultural heritage survey” report.  There were discussions between Mr Walker, Mr Campbell and Mr Newchurch about the preparation of this report.  Although the detail of these discussions remains unclear, the report ultimately produced by ACHM states that the cultural heritage survey was undertaken on 29 June 2009, that the survey involved representatives from the KHB, and that the report had been reviewed and endorsed by the KHB.

11. Events began to proceed quickly between July and September 2009.  On 11 July 2009 a public notice appeared in The Advertiser newspaper.  The notice was placed in The Advertiser by the AARD, and it stated that the Minister had received an application under s 23 of the Act from the Minister for Health seeking authorisation to damage, disturb or interfere with Aboriginal sites or objects in relation to the site of the proposed new Royal Adelaide Hospital. It also stated that a consultation meeting for Aboriginal people and Aboriginal organisations would be held on 29 July 2009.

12. On 14 July 2009 the AARD wrote to about 100 individuals and organisations, including various Aboriginal heritage committees and Mr Newchurch, advising them of the Minister for Health’s application.  The letter summarised the nature of the application.  The letter also invited the recipients to participate in the consultation process, including by attending the consultation meeting that had been organised for 29 July and by making submissions on the Minister for Health’s application by 3 August 2009.

13. The ACHM report was provided to SA Health around 17 July 2009.  The report concluded that (Exhibit P1, JTN 6):

    The results of the Aboriginal cultural heritage survey demonstrate that the Kaurna have a long and continuing relationship with the site of the new RAH [Royal Adelaide Hospital] as illustrated by their cultural stories that travel through this area and by their past use of this site as a traditional camping ground…This intensive Aboriginal activity in the vicinity of the project survey area means that there is a real possibility of sub-surface cultural material being unearthed during earthworks for the planned new RAH…

    There were a number of recommendations in the report. They included that archaeological test excavations be conducted on the site, that an agreement be entered into between SA Health and the KHB addressing communication, consultation and negotiation about any cultural and heritage issues arising from the project, that monitoring should be undertaken by the KHB and ACHM on all ground disturbing works, that the KHB be involved in all stages of planning and development for the project, and that contractors working on the site receive cross-cultural training and induction courses. The report also recommended that a “site record” or “site card” be submitted by ACHM for the Karrawirraparri site (the hospital precinct). Presumably this was to be sent to the Minister pursuant to s 12 of the Act so that the site could be entered on the Register of Aboriginal Sites and Objects under s 12(2)(b) of the Act, and thus be considered an Aboriginal site for the purposes of the Act. The ACHM forwarded a site card for the Karrawirraparri site to AARD on 17 July 2009. At the time of the hearing before me, the site as a whole had not been determined to be an Aboriginal site within the meaning of the Act, and so it had not been entered on the Register of Aboriginal Sites and Objects (Exhibit D11 at [9]).

14. Throughout the latter part of July 2009 correspondence passed between representatives of the KHB and SA Health regarding the issues raised in the ACHM report. 

15. At a meeting on 23 July 2009 between representatives of SA Health (including Mr Walker and Mr Campbell) and the KHB, Mr Walker indicated that SA Health supported negotiations with the Kaurna people regarding the project.  Mr Campbell stated that there was insufficient time for consultation about the Minister for Health’s application.  As a result, the period for consultation on the application was extended from 3 August 2009 to 12 August 2009.  A letter dated 27 July 2009 was sent to the same people who had received the letter dated 14 July 2009 to inform them of the extended consultation period.  A draft “partnering, engagement, consultation and heritage agreement” between the KHB and SA Health was sent to the legal advisors of SA Health on 27 July 2009.

16. On 29 July 2009 the consultation meeting advertised in the notice and by the letter dated 14 July was held.  Mr Newchurch attended.  A number of members of the Kaurna community attended, as did Mr Campbell, who attended in his capacity as the KHB’s solicitor.  A presentation on the proposal for the new hospital precinct was given by Mr Walker.  Dr Draper also gave a presentation entitled “Summary of findings from the heritage survey and research” (Exhibit D11, DAS 8), and a draft copy of the ACHM report appears to have been provided at the meeting.

17. On 6 August 2009 ACHM submitted the final version of its report to AARD. 

18. In an email sent on 12 August 2009 from Mr Campbell to Mr Walker the KHB asked AARD to organise two workshops so that the Kaurna people could properly consider their submission to the Minister. Mr Campbell also noted that a response to the draft agreement sent on 27 July had not yet been received, and that the executive of the KHB considered that any submission to the Minister regarding the Minister for Health’s s 23 application should take into account the outcome of negotiations on this agreement (Exhibit P1, JTN 9). An email sent on behalf of Mr Walker to Mr Campbell on 13 August 2009 stated that the consultation agreement would run “parallel with the section 23 process”, and that “it is not necessary, nor practicable, for this agreement to be finalised prior to your clients [sic] submission on the section 23 application” (Exhibit D8, SLT 4).

19. At a meeting on 19 August 2009 the State Aboriginal Heritage Committee (“SAHC”) resolved not to support the Minister for Health’s application unless a consultation agreement was finalised with the KHB and other relevant Kaurna committees by the end of September 2009. 

20. By letter dated 28 August 2009 the KHB requested that the Minister delegate to “the traditional owners represented by KHB” the Minister’s powers under s 21, s 23, s 29 and s 35 in relation to the Karrawirraparri site pursuant to s 6(2) of the Act (Exhibit P1, JTN 12). The receipt of this request was acknowledged by letter dated 14 September 2009. The Minister did not make a substantive reply.

21. In an email dated 18 September 2009 to AARD, Mr Campbell noted that the KHB wished to consider the Minister for Health’s application in more detail, and that it sought the assistance of AARD to organise workshops. 

22. By an “Application” dated 24 November the KHB, now known as KNCHA, made a second request for the Minister to delegate the powers under s 21, s 23, s 29 and s 35 in relation to the Karrawirraparri site pursuant to s 6(2) of the Act (Exhibit P1, JTN 14). The Minister was asked to delegate the powers “to the Traditional Owners”, although the request was made by KNCHA. The Minister did not reply.

23. On 14 January 2010 the Minister granted an authorisation pursuant to s 23 of the Act in relation to “an area of land between North Terrace and the Railway Yards”, being the land in Certificate of Title Volume 5522 Folio 14 (Exhibit P1, JTN 15). I understand that this refers to the SAHMRI site. It was subject to the following conditions:

    That the applicant [the Minister for Health]:

    •Employs two Kaurna monitors for initial soil disturbance in areas that have not been previously disturbed.  Such areas would not include those with previously introduced fill, but rather where there is a remnant natural soil profile capable of retaining undisturbed archaeological sites, objects or remains.

    •Employs two Kaurna monitors per site where the area of reasonable monitoring extends beyond the capability of the initial two monitors, and where there are simultaneous ground disturbing activities in undisturbed remnant natural soils at more than one location.

    •Employs a suitably qualified archaeologist to identify locations which have a remnant natural soil profile capable of retaining undisturbed archaeological sites, objects or remains.

    •Ensures that all site staff, (including any contractors and sub-contractors’ staff) are advised formally of their obligations to comply with the Aboriginal Heritage Act 1988 and in particular noting that the Act will apply to any Aboriginal objects or remains identified on the subject land at any time.

    This is the authorisation that I previously referred to as the First Authorisation.

24. On the same day the Minister made a determination pursuant to s 12 that certain portions of Certificate of Title Volume 5522 Folio 14 were an Aboriginal site for the purposes of s 12 of the Act. I am unsure whether this means that some of the SAHMRI site was entered on the Register kept by the Minister under s 12 of the Act. As best I can tell, it makes no difference in this case because an authorisation under s 23 can relate to a note in the Register.

25. KNCHA was advised by letter of the First Authorisation.  As a result of the conditions imposed in respect of the First Authorisation, SA Health commissioned Dr Smith, a consultant archaeologist, to give advice on the soil profile for the site.  Dr Smith was provided with information concerning the site including core soil samples, and soil sampling and geo-technical reports.

26. A consultation agreement between SA Health and KNCHA had not been concluded.  Communications concerning the proposed consultation agreement continued. 

27. On 28 January 2010 the Minister for Health wrote to Mr Campbell stating that SA Health would be seeking to finalise an “engagement agreement” with KNCHA “in the near future” (Exhibit P3, TMC 3).

28. Also on 28 January 2010 the Minister wrote to Mr Campbell in relation to a request by KNCHA that the Minister delegate the Minister’s powers in relation to another and unrelated location. The Minister said that there were two Aboriginal groups asserting their rights “to speak for country in this area – the Kaurna People (through KNCHA) and the Peramangk People through a separate organisation” (Exhibit D11, DAS 14). The Minister advised that due to competing claims of interest, the Minister was not able to consider KNCHA’s request for a delegation pursuant to s 6(2) since it was not clear which Aboriginal group “constitutes the Traditional Owners for this particular site”. In his submissions in this case Mr Hinton relied in part on this letter as informing KNCHA about the Minister’s approach to delegation requests.

29. On 11 February 2010 work began on the SAHMRI site.

30. On 17 February 2010 Mr Campbell provided a “final” consultation agreement to the legal advisors of SA Health (Exhibit D10 at [44]).  The document provided for payment to KNCHA of $680,000 over five years plus the meeting of costs of $29,920 a year for 15 years.  It provided for other financial commitments.  In an email sent on 19 February 2010 the legal representatives for SA Health advised Mr Campbell that SA Health was considering the “final” consultation agreement that he had sent on 17 February, and that SA Health was keen to enter into both a consultation agreement and a monitoring agreement.  It was noted in the email that in the interim SA Health wanted to arrange for two monitors to attend the site and monitor preliminary work to be done on 1 March.  On 20 February Mr Campbell responded noting that the request for monitors had been forwarded to KNCHA.  He also asked for more information about where the monitoring would take place and what would be involved. 

31. After some unrelated delays, the monitors attended the site on 3 March 2010.  That day Mr Campbell and Mr Wanganeen, an officer of KNCHA, were advised by email that monitors were next required for 10 March.  They were told that monitors were not required for work to be done on 4 and 5 March since this work involved only tree root removing.  Mr Wanganeen responded on 4 March stating that monitoring was required for all excavation in natural soil or earth.  On 5 March the legal representatives for SA Health advised Mr Wanganeen that both the monitors on site and the head contractor agreed that monitors were not required for “grubbing”, but that monitoring would be required for “the main excavation” (Exhibit D8, SLT 22).

32. Despite the request in the email sent on 3 March to Mr Campbell and Mr Wanganeen, monitors did not attend the site on 10 March 2010.  That day Mr Campbell and Mr Wanganeen were advised that monitors were required for 11 and 12 March.  From 11 to 18 March, excluding the weekend, monitors attended the site.  Nothing significant was found during the excavation work.

33. On 21 March 2010 Mr Campbell emailed Ms Tucker from the Crown Solicitor’s Office and queried whether certain work being carried out on the site was within the First Authorisation. He also sought confirmation that the conditions of the First Authorisation relating to the employment of a suitably qualified archaeologist and the training of site staff as to their obligations under the Act were being complied with. Mr Campbell emailed Ms Tucker again on 22 March. He noted that it appeared as though work was being undertaken on the site and that monitors should be present on site. He also asked what archaeological or other assessments had been undertaken of the excavations on site.

34. That day Mr Wanganeen attended the site on behalf of KNCHA and stopped work on the basis of an alleged breach of the First Authorisation.  KNCHA Board members inspected the site on 22 or 23 March. 

35. Work resumed on 25 March 2010.  On the same day Mr Campbell was informed that all work being undertaken on the site was within the ambit of the First Authorisation, and that the conditions of the authorisation were being complied with.  Monitors attended the site on 26 and 29 March.  After some further queries by Mr Campbell as to whether the work being undertaken was within the area covered by the First Authorisation, Mr Campbell attended the site on 7 April with an officer of the Department of Premier and Cabinet.  It was established that the works being undertaken were on the land covered by the First Authorisation.

36. On 11 May a letter was sent by email from the Crown Solicitor’s Office to Mr Campbell, a copy of which was sent to a number of other individuals.  In the letter it was noted that work was about to commence on the SAHMRI site, and that monitors would be required.  It was proposed that SA Health conduct a briefing session with Mr Campbell and the proposed monitors to explain the project and what would be required of the monitors.  Mr Campbell sent an email that day to Ms Tucker contending that the SAHMRI site was not covered by the First Authorisation and that another application would need to be made by the Minister for Health.

1. On 24 May 2010 a “technical briefing session” was held on site with Kaurna representatives (Exhibit D11 at [23], Exhibit P3, TMC 6, and Exhibit D8, SLT 41).  It is not clear what was said at this meeting.  Dr Smith was present.  She is an archaeologist.  She had given SA Health a report on 22 May 2010.  The report analysed soil profiles, with reference to the likelihood of Kaurna remains being found.  She outlined her findings.  However, later that day Mr Campbell emailed SA Health and Ms Tucker stating that he was instructed that it was acknowledged that consultation agreements between SA Health and KNCHA should be formalised as soon as possible, and that a draft agreement had been sent to SA Health.  He also noted that KNCHA had not yet received a response from SA Health in relation to that draft agreement. 

2. During June 2010 disputes began and tempers appear to have become frayed. The Crown Solicitor’s Office made a number of requests for monitors on behalf of SA Health. Mr Campbell responded by stating that the request for monitors and the proposed monitoring requirements did not reflect the arrangements and agreements made at the meeting on 24 May. On 16 June Ms Tucker emailed Mr Campbell stating that no arrangements or agreements had been made at the meeting on 24 May. She referred to a letter she had sent to Mr Campbell on 3 June and sought confirmation that monitors would be provided in accordance with the arrangements set out in that letter. On 18 June Mr Campbell responded stating that a consensus had been reached at the meeting on 24 May. He noted that KNCHA was concerned as to whether all investigative work on the site was being carried out in accordance with the conditions of the First Authorisation. In particular, he noted that KNCHA was concerned that there was not a suitably qualified archaeologist on site to identify soil profiles capable of containing Aboriginal sites, objects or remains. Once again, he questioned whether all site staff had been advised of their obligations under the Act, and he again referred to the draft agreement provided to SA Health that was “awaiting further negotiation”. He also stated that he was instructed that KNCHA would not supply any monitors until the issues set out in his email had been resolved satisfactorily (Exhibit P3, TMC 4).

3. On 22 June 2010 a letter was sent from the Crown Solicitor’s Office to Mr Campbell.  The letter stated that if monitors were not provided SA Health would not be able to comply with the conditions of the First Authorisation, and thus work on the site would not be able to continue.  Further, the letter stated that it was not a condition of the First Authorisation that SA Health enter into a “consultation agreement” with KNCHA, and that SA Health was not prepared to enter into the agreement proposed by KNCHA.  The letter asked Mr Campbell to confirm by 25 June 2010 whether KNCHA was prepared to provide monitors in accordance with the terms of the letter from the Crown Solicitor’s Office dated 3 June.  The letter also stated that if no reply was received by 25 June 2010, due to the need for SA Health to commence work on aspects of the SAHMRI, SA Health would make an application to (Exhibit P3, TMC 5):

   …strike out the existing authorisation and reapply for a fresh application to authorise damage, disturbance or interference with Aboriginal sites, objects and remains over the same land as the current authorisation has been frustrated as a result of Kaurna’s refusal to provide monitoring. 

   It was noted in the letter that in the event of SA Health making such an application it would submit to the Minister that any authorisation given should not be conditional upon monitoring by the Kaurna people. 

4. No response to this letter was received by 25 June 2010. 

5. On 26 June 2010 Mr Campbell wrote to Ms Tucker (Exhibit P3, TMC 6). He asked for information about the employment of a qualified specialist to identify locations with a “remnant natural soil profile”. He maintained that the First Authorisation did not cover the SAHMRI site. He stated that he had been instructed that the meeting held on 24 May did not adequately address whether the condition that all site staff be advised of their obligations under the Act had been met. He noted that the draft consultation agreement sent on 17 February 2010 was still awaiting “negotiation and execution”. He concluded by expressing hope that negotiations could occur quickly to finalise the agreement.

6. On 29 June 2010 the Minister for Health sent the Minister two Minutes.  In the first Minute, the Minister for Health noted that an authorisation had been granted, set out the conditions of that authorisation, and stated that SA Health had complied with all of those conditions.  The Minister for Health then stated (Exhibit D11, DAS 17):

   Compliance with the condition to employ Kaurna monitors has been frustrated by the refusal of the Kaurna Nation Cultural Heritage Association (KNCHA) to supply monitors until SA Health enters into an agreement in relation to ‘consultation’, which is a matter lying outside of your authorisation and conditions.

   SA Health has consistently made good faith attempts to reach a reasonable position with KNCHA in relation to the engagement of monitors on a basis that can be seen to be a justifiable expenditure of public funds, within the project budget.  It remains willing to engage with the Kaurna people and other Aboriginal South Australians to ensure that the health facilities and services at the new RAH precinct will be designed and delivered to accommodate the cultural and other concerns of Aboriginal people.

   However, the failure to reach agreement with KNCHA in accordance with the conditions of the section 23 Authorisation is putting the project at serious risk in terms of deadlines and fiscal responsibility. If this matter is not addressed, there will be a significant impact on the SAHMRI construction program and project cost.

   The authorisation has been frustrated due to the inability to secure monitors required under the current authorisation.  More broadly, the lack of a spirit of cooperation makes the current arrangements untenable.

   The Minister for Health then asked the Minister to quash the authorisation granted on 14 January 2010. 

7. In the second Minute sent on 29 June the Minister for Health requested a new authorisation pursuant to s 23 of the Act to permit damage, disturbance or interference with Aboriginal sites, objects or remains within the area of Certificate of Title Volume 5522 Folio 14. In that Minute the Minister for Health stated that (Exhibit D11, DAS 18):

   In the light of previous uncertainty about engagement of monitors, and the previous authorisation, I request that you give consideration to not include conditions about monitoring, should you decide to grant an authorisation after all processes under the Act have been followed and you have sufficient information before you for a decision.

   I also recommend that the following two conditions are included as part of the authorisation:

   •Employs a suitably qualified archaeologist to identify locations that have a remnant natural soil profile capable of retaining undisturbed archaeological sites, objects or remains.

   •Ensures that all staff, (including any contractors and sub-contractors’ staff) are advised formally of their obligations to comply with the Aboriginal Heritage Act 1988 and in particular noting that the Act will apply to any Aboriginal objects or remains identified on the subject land at any time.

   Given that construction (including excavation) has commenced on the SAHMRI site, it is critical that the due processes required for a new section 23 Authorisation proceed expeditiously. I understand that a public notice in The Advertiser newspaper is required to initiate the consultative process.

   The Minute then went on to propose a schedule for consultation, with a consultation meeting proposed for 14 July 2010. 

8. By a Minute dated 7 July 2010 the Minister advised the Minister for Health that the Minister had revoked the First Authorisation. This is the Revocation Decision. In the Minute advising the Minister for Health, the Minister stated that (Exhibit D11, DAS 19):

   After considering the information presented to me I concur that the Authorisation is frustrated due to your inability to comply with the conditions of that Authorisation.  Accordingly, I advise that I have decided to revoke the Authorisation.  

   It appears from what is before me that the only information provided to the Minister was the two Minutes sent by the Minister for Health on 29 June.  The Minister also stated that she had advised KNCHA of her decision to revoke the First Authorisation.  Work on the site ceased that day. 

9. That same day the Minister wrote to Mr Campbell.  She said (Exhibit P1, JTN 16):

   I have made this decision [the revocation] on the basis that the Authorisation granted on 14 January 2010 is frustrated due to the inability of the Minister and SA Health to secure monitors at a reasonable rate …

10. On 8 July 2010 AARD wrote to interested persons advising them of the new consultation process and inviting them to participate in it. The notice advising of the new application for an authorisation pursuant to s 23 was placed in The Advertiser newspaper on 9 July.  The notice stated that a consultation meeting would be held for Aboriginal people and organisations on 23 July 2010.

11. Work of a limited nature began again on the site on 12 July 2010.

12. On 13 July 2010 Mr Newchurch instituted these proceedings seeking relief in respect of the First Authorisation. Mr Newchurch sought to have the First Authorisation quashed, in addition to seeking an order requiring the Minister to delegate the Minister’s powers pursuant to s 6 of the Act.

13. On 23 July 2010 the consultation meeting advertised in the public notice on 9 July took place.  The meeting was attended by a number of Kaurna elders, including Mr Newchurch, as well as members of the KNCHA board, Dr Draper and Ms Sutherland from ACHM, Dr Smith, and Ms Stimson from AARD.  Ms Stimson chaired the meeting.  The Minister does not dispute that Mr Newchurch and others present at the meeting sought to raise the issue of the revocation of the monitoring condition, as well as the issue of possible breaches of the First Authorisation prior to its revocation.  Nor is it disputed that these people were not permitted to speak on these issues at the meeting, and that they were told that these issues were irrelevant because the First Authorisation had been revoked. 

14. However, there is a dispute as to whether the issue of monitors was discussed at the meeting. Mr Newchurch also asserts that neither before nor during the meeting was either he or KNCHA consulted by the Minister about the reasons why the Revocation Decision had been made. The Minister (through affidavit evidence) claims that monitoring was discussed at the meeting. I am not in a position to resolve the dispute.

15. At the meeting Dr Smith gave a presentation, and Dr Draper made it clear that he disagreed with her results.  There was also a request for copies of the correspondence between the Minister and SA Health, but that request was refused. 

16. Immediately following the meeting SAHC met to consider the fresh application.  SAHC resolved to support the making of an authorisation with a condition for monitoring.

17. On 26 July 2010 KNCHA made another request, its third, to the Minister asking her to delegate her powers under s 21, s 23, s 29 and s 35 of the Act to the “traditional owners” in relation to the site (Exhibit P1, JTN 25). In that application KNCHA also sought access to the report of Dr Smith and to notes of the meeting on 23 July.

18. On 29 July 2010 Mr Newchurch’s application for permission to proceed with the Summons filed on 13 July 2010 was considered by a Master of this Court pursuant to r 200 of the Supreme Court Civil Rules 2006.  On 4 August the Master refused Mr Newchurch permission to proceed with the application.

19. On 5 August AARD wrote to Mr Campbell inviting KNCHA to make a final submission on the new s 23 application by 16 August 2010. Copies of the documents to be put before the Minister when considering the new s 23 application were attached to the letter to Mr Campbell, although the letter stated that the submissions of other parties and other information of a “confidential nature” would not be provided (Exhibit D11, DAS 20 p.39).

20. On 13 August Mr Campbell wrote to AARD on behalf of his client, whom he identified as the Kaurna Nation.  In the letter Mr Campbell suggested that further information was required for the SAHC to consider properly the fresh application.  He asked for this further information to be provided by 16 August.  Ms Weis responded to Mr Campbell’s letter on behalf of AARD on the same day.  In her response she noted that SAHC would reconvene to consider any additional material provided to it.  She also addressed the issue of Dr Smith’s report, and whether it would be provided to the Minister when considering the fresh application.  Ms Weis stated in the letter that (Exhibit D11, DAS 23):

    Conscious of the highly technical nature of the primary material, Dr Smith provided an explanation and overview of the material and her conclusions based upon it to the consultation meeting. That overview will, in turn, be provided to the Minister for her consideration in determining the section 23 application. The Minister will not consider the primary research material due to its high degree of technicality. This material continues to be held by SA Health. As the Minister will not be resorting to it, it is not considered necessary or appropriate to provide it to your clients in this context.

    Accordingly, a copy of Dr Smith’s report was not and has not been provided to KNCHA.  However, it seems that the Minister was not provided with the full report either.

21. On 16 August 2010 the Minister wrote to Mr Campbell and advised him that she had refused the request to delegate her powers pursuant to s 6 of the Act to KNCHA. The letter was not received until 23 August 2010. Nonetheless, Mr Hinton contends that KNCHA would have been aware of the difficulties with the request given the response the Minister had sent on 28 January 2010 in relation to KNCHA’s requests relating to another site. In the letter the Minister stated that it was self-evident that the power to delegate under s 6(2) of the Act “does not extend to a corporate entity” (Exhibit P3, TMC 2). I have referred to this decision as the Delegation Decision.

22. On 17 August SAHC met again to consider the Minister for Health’s application.  The SAHC was provided with the full submissions made on the application, as well as summaries of the submissions and material from Mr Campbell, ACHM and the Ramindjeri people (who made a rival claim to be traditional owners of the site).  The SAHC reviewed the material and decided that it did not alter the view it had reached on 23 July.

23. Also on 17 August 2010, the Minister advised the Minister for Health and Mr Campbell that she had decided to grant the Minister for Health an authorisation under s 23 of the Act in relation to the land covered by parcels 10, 20, 30 and 60 of Certificate of Title Volume 5522 Folio 14. The authorisation was granted with only one condition, namely, that all site staff involved in ground disturbing activities (including any contractors and sub-contractors’ staff) undertake an induction of up to 2 hours duration to ensure that they are aware of their obligations under the Act and the Aboriginal and Torres Straight Islander Heritage Protection Act 1984 (Cth).  This is the Second Authorisation.  The letter from the Minister to Mr Campbell notifying him of the decision to grant the Second Authorisation attached a list of the materials and submissions considered in making the decision. 

24. Excavation works resumed on the site on 19 August 2010.

25. On 31 August 2010 a Notice of Appeal was filed in which Mr Newchurch appealed against the decision of the Master refusing permission to proceed.  The matter first came before me in October, and on 4 November 2010 I granted Mr Newchurch permission to amend the Summons to seek relief in respect of the Delegation Decision and the Second Authorisation. 

26. I turn now to consider the submissions advanced by Mr Roder and Mr Hinton.

    Standing and status of Mr Newchurch

27. The Minister does not dispute that Mr Newchurch has standing to bring the proceedings and to claim the relief that he claims, although not relief on behalf of KNCHA. The Minister accepts that Mr Newchurch is an Aboriginal person; that he is a Kaurna elder; that the site is significant according to Kaurna tradition; and that Mr Newchurch had a “particular interest in the matter” (s 13(1)(f) of the Act) in the sense of having an interest beyond that of the general public. The Minister also accepts that Mr Newchurch was involved in the consultation process relating to the site.

28. Mr Hinton submits that the evidence is insufficient to establish that Mr Newchurch is a traditional owner of the site for the purposes of the Act. He does not submit that he is not a traditional owner, merely that the evidence does not establish that he is. I have set out above the definition of “traditional owner” and of “Aboriginal tradition”. Mr Hinton submits that the evidence does not provide a basis for a finding in terms of traditions, observances, customs or beliefs prior to European colonisation, nor does it establish whether and how those traditions and other things have “evolved or developed … since European colonisation”.

29. It was only during the course of the addresses that I realised that this was an issue. There is a substantial body of affidavit evidence, not challenged by cross‑examination, to support a finding that Mr Newchurch is a traditional owner of the site. Moreover, as Mr Roder submits, the scheme of the Act involves administrative decisions by the Minister that would not ordinarily be preceded by a hearing or formal enquiry. In some cases decisions would be made under the Act without any significant enquiries as to facts, and probably without time to do so. As Mr Roder submits, how much evidence must be provided when an administrative decision, of the kind made here, is made by the Minister under the Act?

30. I accept the point that Mr Roder makes. But it cuts both ways. If a decision is made by the Minister under the Act, the validity of the decision must usually turn on the effect of the material then before the Minister. A decision by the Minister would usually not be invalidated on the basis of facts, later established in court, that were not known to the Minister or, in some cases, not readily ascertainable by the Minister.

31. In the submissions before me the parties did not, to any significant degree, differentiate between the material available to or ascertainable by the Minister when the decisions were made, and the material now before the Court.  I have no doubt that some of the material now before me was not before the Minister at the relevant time.  Indeed, it is not clear just what was before the Minister, on this topic, when the decisions were made.  On the other hand, some of the material may have been known to the Minister, or at least to the Minister’s advisers, through their experience in dealing with the Kaurna people in this and other matters.  The Minister and the Minister’s advisers must have known that the Kaurna people had a particular interest in the site, and that they claim to be traditional owners of the site.  But whether the Minister, and the Minister’s advisers, were in a position to decide whether the Kaurna, or any particular Kaurna people, were traditional owners of the site is another matter.

32. Be that as it may, on the material before me, and bearing in mind that it was not challenged by cross-examination, I conclude that Mr Newchurch is one of the traditional owners of the site. On some aspects the evidence is not detailed, but I consider it sufficient to support the finding that Mr Newchurch seeks. I also find that the precinct is an Aboriginal site for the purposes of the Act, because it is an area of land of significance according to Kaurna tradition.

1. I emphasise that I do not find that Mr Newchurch is the traditional owner of the site, merely that he is one of a group, comprising all or some part of the Kaurna people, who together are traditional owners of the site.  On the evidence I am not in a position to make a finding as to the number of people who are traditional owners, or as to the subgroup of the Kaurna people that are traditional owners, if traditional ownership is limited to a subgroup.  Nor do I exclude the possibility that other Aboriginal people have a relationship to the site such that they also are traditional owners of the site.  The evidence indicates that the Ramindjeri people claim traditional ownership.

2. I also find, on the basis of what the Minister knew at the time of the relevant events, that the Minister knew that the Kaurna people claimed to be traditional owners of the site.  The Minister dealt with them on that basis.  I find that the Minister was aware that the site was an Aboriginal site, and that the Kaurna people had a particular interest in that site.

3. But some care must be taken with this finding. It would follow, in my opinion, that when giving an authorisation the Minister was obliged by s 13 of the Act to take all reasonable steps to consult with the Kaurna people on the basis that they were traditional owners or, at least, had a particular interest in the matter. On the other hand, as will appear, when one comes to the provisions of s 6(2) of the Act, a more discriminating approach will be called for because of the significance of a delegation of power to the traditional owners.

4. I add that on the evidence there is no indication that Mr Newchurch had identified himself to the Minister, or had been identified by the Minister, as having an interest in the site going beyond that of other, or at least some other, Kaurna elders.  Until the proceedings were instituted there was no reason for the Minister to have identified Mr Newchurch as having an interest in the matter that called for consultation with him specifically, as distinct from, were it required, consultation with him as one of the members of the Kaurna people or as a Kaurna elder.  He was, and appeared to be, in the same position as other Kaurna elders.

5. Contrary to the submission by Mr Hinton, I consider that I am obliged to decide whether or not Mr Newchurch is a traditional owner. Section 42 of the Act provides:

   42—Failure to consult etc traditional owners

   No person other than a traditional owner is entitled to call into question the validity of an act or determination of the Minister on the ground that there has been a failure to comply with a requirement of this Act as to consultation with traditional owners, or as to the obtaining of approval from, or the stipulation of conditions by, traditional owners.

   The challenge to the Second Authorisation cannot be maintained unless Mr Newchurch is a traditional owner, because it is a challenge on a ground identified in that section. In particular, he complains of a failure by the Minister to comply with s 13(1)(f) of the Act.

   The Revocation Decision

6. Mr Roder accepts that although the Act does not expressly confer on the Minister power to revoke an authorisation under s 23, it is a necessary implication that such a power is conferred. I consider that s 23, read in the light of s 37 of the Acts Interpretation Act 1915 (SA), confers the necessary power without any need to rely upon an implication from the terms of s 23 alone. Section 37 provides:

   37—Powers may be exercised from time to time

   A power given by any Act to do any act or thing (including the making of an appointment), or to submit to any act or thing, is capable of being exercised from time to time, as occasion requires, unless the context, or the nature of the act or thing, indicates a contrary intention.

   The power to grant an authorisation is capable of being exercised from time to time.  Therefore, the authorisation must be capable of revocation and of variation, otherwise it could not be exercised from time to time.  I do not agree that the power can be exercised in relation to a given site only once, although it can be exercised in relation to different sites from time to time.

7. If it is said that I have, in effect, relied upon a necessary implication, then so be it.  I am prepared to. 

8. The power conferred by s 23 of the Act is a power to be exercised in relation to circumstances that can easily change after an authorisation is given. Things done in reliance on an authorisation may give rise to circumstances calling for a wider or narrower authorisation, or even for its revocation. For example, persistent breaches of an authorisation by the authorised person would call for revocation of the authorisation. Also, findings made as a result of conduct under an authorisation might call for the authorisation to be restricted or widened. Parliament must have intended that the power conferred by s 23 could be used to revoke or vary an authorisation as circumstances require.

9. Mr Roder submits that s 13 of the Act (above) applies to a decision to revoke an authorisation under s 23. He submits that a decision to revoke an authorisation can be called a determination, and accordingly s 13(1)(a) applies to such a decision. He submits that the Act does not categorise or describe a decision to revoke an authorisation, and there is no obstacle to calling such a decision a determination.

10. I agree that a decision to revoke an authorisation could be called a determination. But s 13(1) indicates an intention on the part of Parliament to identify specifically those decisions (I use this term in a non-technical sense) that require consultation. Subsection (1) suggests this, having regard to its structure. Also, the Act refers to a determination by the Minister in a number of sections: s 9(2), s 9(3), s 11(b), s 12 (several times), s 13(2), s 13(3)(a), s 24(8), s 29(3), s 32(1)(a), s 34, s 42. It is apparent from the Act that not all decisions made by the Minister are called determinations. Section 13(1) suggests a deliberate limitation on the kind of decisions which must be the subject of consultation.

11. The revocation of an authorisation might raise issues of concern to Aboriginal people, but as to that one needs to bear in mind that unless there is a further authorisation, the revocation itself will usually restore the situation in which the prohibition in s 23 is operative. It is likely that there will be cases in which the revocation of an authorisation would not, of itself, be any cause for concern on the part of people and organisations referred to in s 13.

12. I conclude that s 13 does not apply to the Revocation Decision.

13. Mr Roder submits in the alternative that the power to revoke the authorisation is a power conditioned by the requirement to observe procedural fairness in its exercise.  In Annetts v McCann (1990) 170 CLR 596 at 598, Mason CJ, Deane and McHugh JJ said:

    It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment …

    Anticipating Mr Hinton’s submission that the Revocation Decision merely restores the application of the prohibition in s 23, and so has no effect on Mr Newchurch’s interests, Mr Roder submits that the Revocation Decision was the first step in a two stage process intended to bring about the making of the Second Authorisation.

14. The exercise of the power to revoke an authorisation under s 23 could, in particular circumstances, require the Minister to observe procedural fairness. For example, ordinarily the Minister would have to give the holder of the authorisation notice that the Minister was considering revoking the authorisation, and an opportunity to make submissions. In many cases the revocation of an authorisation would affect the interests and legal expectations of the holder. In the present case the Minister for Health made the request, and there was no need to consult with that Minister.

15. Was the Minister obliged to consult with Mr Newchurch before deciding to revoke the First Authorisation?

16. I return to the status of Mr Newchurch. He is one of an unknown number of traditional owners of the site. He had not been involved in the circumstances leading to the First Authorisation, or in the negotiations and arguments that followed, in such a way as to bring him to the notice of the Minister as a traditional owner with an interest in the Revocation Decision any different from that of any other traditional owner. He had not been one of the monitors who attended the site. There was no basis for the Minister to conclude that Mr Newchurch was affected as an individual, as distinct from as a member of the class of traditional owners. In Kioa v West (1985) 159 CLR 550 Mason J (at 584) and Deane J (at 632) referred to decisions that affect rights and interests of another in a “direct and immediate way” (Mason J) and in an individual capacity “… as distinct from as a member of a general public or of a class of the general public …” (Deane J). I conclude that the Minister was not obliged to notify Mr Newchurch of the application for revocation, or to seek comments from him in relation to the request.

17. Did procedural fairness require, in these circumstances, that the Minister inform the traditional owners of the request for a revocation, and invite them to comment on the request?  It was not practically possible for the Minister to identify or to notify all of the traditional owners, or all who claimed to be traditional owners.  But fairness might have required some notice to have been given of the application, and for the Minister to give an opportunity for comment to be made.  In the particular circumstances of this case, the Minister was not obliged to do that.  The Minister had been dealing with KNCHA on the basis that it spoke for the Kaurna traditional owners.  There has been no suggestion that the Kaurna traditional owners objected to this.  In these circumstances, any obligation to give notice of the request for a revocation, and to invite comment, could be discharged by dealing with KNCHA, unless the circumstances changed and it appeared that KNCHA was not speaking for the Kaurna traditional owners.  I reach this conclusion with reference to the specific circumstances of this case.  It does not reflect a general proposition that in all circumstances KNCHA represented or spoke for the traditional owners.

18. Moreover, having regard to its involvement in the First Authorisation, and in later events, procedural fairness might have required that KNCHA be notified of the proposed revocation and be given an opportunity to comment. In that event it would have been necessary to decide whether correspondence between the Crown Solicitor and the solicitor for KNCHA in June satisfied the requirement for procedural fairness. The letter of 22 June 2010 sent on behalf of the Minister for Health to Mr Campbell stated clearly that the Minister for Health would ask for a revocation of the First Authorisation, and his reasons for doing so. Mr Campbell wrote to the Crown Solicitor’s Office on 26 June 2010 (Exhibit P3, TMC 6). His letter argued the point on a number of the issues that had arisen between the Minister and KNCHA so far. It canvassed the question of an agreement between the Minister and KNCHA. It criticised the managers of the building project on the grounds that management “… has shown little respect to the Kaurna Nation”. It noted that Kaurna “… is now threatened with a new s 23 authorisation which will exclude Kaurna. This is not reconciliation …”. It may be that this letter was not provided to the Minister in connection with the application for a revocation. The evidence as to what was before the Minister is not completely clear. Nevertheless, it is apparent that through Mr Campbell KNCHA was aware of the request, aware of what the Minister of Health was seeking, and aware of the basis for the request. On the other hand, it may be that none of this was put before the Minister, nor did the Minister apparently make any enquiries before deciding to act upon the request by the Minister for Health.

19. For the reasons that now follow, it is not necessary for me to decide whether or not the Minister acted so as to give KNCHA a fair opportunity to comment.  At a preliminary hearing, and during the main hearing, I raised the question of the participation of KNCHA, alluding to the difficulty that might arise if it were not a party.  No application was made by KNCHA to be joined.  I am prepared to find that it was aware of the proceedings, because the solicitor for Mr Newchurch was also the solicitor for KNCHA.  At the time of the hearing Mr Newchurch was not a board member of KNCHA.  Any complaint about a failure to accord procedural fairness to KNCHA is a complaint that can be made only by KNCHA.  As it is not a party to the proceedings, the issue is not able to be determined.

20. I return to the submission by Mr Hinton to the effect that the revocation decision merely restored the application of the prohibition in s 23, had no adverse effects on the rights or interests of Mr Newchurch, the traditional owners or KNCHA, and so attracted no duty to give notice or to give an opportunity to make representations. There is force in this submission. There are circumstances in which the submission would be persuasive. But in this case, the Revocation Decision had the effect of denying KNCHA the opportunity to provide and to insist upon monitors (relying on the conditions of the First Authorisation), and did so on the basis of allegations adverse to KNCHA that it might have wished to contest, particularly because those allegations might affect further decisions by the Minister in relation to the site. In those circumstances, I do not accept Mr Hinton’s submission that a claim by KNCHA to procedural fairness should be rejected. Because KNCHA is not a party it is not for me to determine whether or not the fact that it was aware of the request being made by the Minister for Health to the Minister and the reasons for doing so, and had time to make a submission to the Minister, was sufficient. It may well have been.

21. Finally, I return to Mr Roder’s submission that the Revocation Decision was the first step in a two stage process. On this basis, he based a duty to accord procedural fairness on making the Revocation Decision in relation to its impact on Mr Newchurch and other interested persons in groups. I accept, as a matter of fact, that having made the Revocation Decision it was likely that the Minister would grant the Second Authorisation. But the validity of the Second Authorisation is regulated by s 13 of the Act. If s 13 is complied with, the Second Authorisation is valid. If it is not, the Second Authorisation is invalid. In my opinion the Second Authorisation cannot be deployed, as Mr Roder did, to give rise to a more general duty of consultation, unrelated to the requirements of s 13.

    The Delegation Decision

22. Three applications have been made to the Minister requesting that the Minister delegate the Minister’s powers under s 23 of the Act (and s 21, s 29 and s 35) in respect of the site.

23. The first was by letter of 28 August 2009.  The request was made by KHB for a delegation to it, as representative of the traditional owners.  The second request was by “Application” made on 24 November 2009.  The request was made by KNCHA, described as “traditional owners”.  It requested a delegation to the traditional owners.  The third request was by “Application” received on 26 July 2010.  It was made by KNCHA acting on behalf of the traditional owners. 

24. Before me each application was treated as an application for a delegation of powers and functions to KHB or KNCHA respectively. 

25. The Minister did not respond in any substantive way until her letter of 16 August 2010, which was received after she granted the Second Authorisation. As set out above, the Minister stated in the letter that “… the power to delegate under s 6(2) of the Act does not extend to a corporate entity”.

26. I agree with the Minister. A delegation under s 6(2) must be to the traditional owners of the site. The definition of “traditional owner” in s 3 of the Act specifies that this must be an Aboriginal person, with identified affiliations with and responsibilities for the site, this being in accordance with Aboriginal tradition as defined. I consider that a delegation under s 6 must be to an Aboriginal whom or to Aboriginals who are the traditional owners. However convenient and sensible it might be to allow a representative body to hold and exercise delegated powers, the Act does not allow that. One cannot read “traditional owner” as including an organisation or body on whom the traditional owners have conferred their powers.

27. In any event, without going into details, it cannot be said that KNCHA has the necessary authority from the traditional owners.  It remains unclear who the traditional owners are.  As I have mentioned earlier, it may be that groups other than the Kaurna people are also traditional owners.

28. Moreover, there is no evidence that KHB or KNCHA, by evolving or developing traditions, had or has the relevant affiliations with or responsibilities for the site.  Nor is there any evidence that in the same way they have acquired the authority to speak for the traditional owners.  The constitution of KNCHA does not establish it is the representative of traditional owners generally, nor as having authority to make decisions on their behalf.

29. The section gives rise to a number of practical difficulties. No doubt it was well intended. I do not have to decide on Mr Hinton’s submission that if an application were made by an Aboriginal person under s 6, the Minister could grant the application only if satisfied that the applicant was the traditional owner of the site, or that the applicants were traditional owners who had authority to speak for and act for traditional owners generally. The section is surely not intended to be used to enable individuals or a group to wrest control from other traditional owners. However, this is a matter to be resolved when it falls for decision, not now.

30. I make no comment on the request under s 21, s 29 and s 35. I do not need to decide whether or not s 6 authorises global delegations of the kind that KNCHA appears to have sought, or only more specific delegations.

31. I am of the opinion that Mr Newchurch lacks standing to pursue this challenge to the Minister’s refusal to delegate powers.  The appropriate body to challenge that decision was KNCHA, treating the third request as the relevant one for these proceedings.  Although KNCHA authorised Mr Newchurch to represent its interest (Exhibit P1, JTN 2), I consider that the claim is one that had to be brought by KNCHA.

32. Mr Roder complains that the Minister was obliged to consult on the application, and failed to do so.  I agree that the Minister dealt with the application in an unsatisfactory manner.  For a long time there was no response.  When it came, it was effectively too late to be challenged.  I am not able to find, on the available evidence, whether that was deliberate.

33. Section 13 does not apply to the decision in question. The exercise of the obligation of the Minister to delegate powers may be something that attracts a duty to provide procedural fairness. Although the Minister is under an obligation to grant an application, and although it is up to the applicant to put forward the applicant’s case, there might be circumstances in which procedural fairness would require the Minister to raise a deficiency or gap in the application, before making a decision. It is not necessary to decide this. I merely point out that a duty to accord procedural fairness might be attracted in particular circumstances.

1. In the present case there was no duty to consult with KNCHA.  Its application could not be granted as a matter of law.  There was nothing to consult about.  In any event, as I have found that the Minister is correct in law, it would be pointless now to quash the Delegation Decision and direct the Minister to reconsider the matter.  The Minister would have to make the same decision.  It remains open to the traditional owners of the site to make a fresh application to the Minister.

2. This ground lacks any substance.  I refuse permission to proceed.

   The Second Authorisation

3. Mr Roder attacks the validity of the Second Authorisation on a number of grounds.

4. The Second Authorisation is dated 17 August 2010.  It is as follows, after some formal recitals (Exhibit P1, JTN 26):

   I authorise, subject to the conditions below, damage, disturbance or interference with any Aboriginal sites, objects or remains on the land covered by the parcels 10, 20, 30 and 60 of CT 5522/14 and marked on the attached plan.  This authority applies to all current and future activities associated with the construction of the new Royal Adelaide Hospital and South Australian Health and Medical Research Institute together with associated services, facilities and infrastructure that may be required to build and operate the health and research services.  The authorisation applies to the Minister for Health or such other Minister of the Crown responsible for any construction and development within the NRAH precinct together with staff, contractors, subcontractors or agents associated with any of the services and facilities that may be established on the land.

   The following conditions apply to this authorisation:

   That the applicant:

   .      ensures that all site staff involved with ground disturbing activities, (including any contractors and sub-contractors’ staff) undertake an induction of up to 2 hours duration to ensure that they are aware of their obligations under the Aboriginal Heritage Act 1988 and the Aboriginal and Torres Strait Island Protection Act 1984 (Cth).

5. There are three points that I make about the Second Authorisation, so that they are not overlooked. First, it does not extend to the removal of an object or remains, if found. The prohibition in s 23(c)(ii) against removal of an object or remains continues in force. Second, s 23 does not contain a prohibition against damage to Aboriginal remains. Why that is so, I do not understand. Third, it is not a condition of the authorisation that the Minister be notified if an Aboriginal object or remains are found, enabling the Minister to consider what should be done with the object or remains. I find that surprising. It is not something that can affect the validity of the Second Authorisation. All I can say is that I would have thought that the Minister would want an opportunity to consider what should be done if an Aboriginal object or remains were found, bearing in mind the terms of s 5(1)(a) of the Act.

6. Mr Roder’s first submission appears to be that s 23 of the Act does not allow a general authorisation to be given before any objects or remains are found. The power to authorise damage, disturbance or interference is said to arise only if objects or remains have been identified.

7. I disagree. There is no reason to limit the section in this way. To the contrary, it contemplates a situation in which there is a risk of damage to or disturbance of Aboriginal objects and remains, it being uncertain whether or not this will occur because of uncertainty as to whether or not Aboriginal objects or remains are present. Common sense suggests that such a situation will often arise. As this case illustrates, an obvious use of s 23 is to establish a regime under which an activity that might cause damage or disturbance can proceed, as long as adequate precautions are taken to avoid such damage and disturbance.

8. The next submission is that once KNCHA had requested that the Minister delegate the Minister’s powers under s 23 pursuant to s 6, the Minister could not exercise those powers until the Minister had made a decision on the request. Again, I disagree. There is nothing in s 6 to support an argument that if a request is made under s 6, the exercise by the Minister of powers under s 21, s 23, s 29 and s 35 is suspended until the request is dealt with. If that had been Parliament’s intention, I would have expected s 6 to so provide. Again, common sense tells us that a request under s 6(2) of the Act may require detailed investigation and careful consideration by the Minister before a decision can be made. That being so, I would not infer that the making of a request under s 6(2) has the suggested effect. I agree that the Minister took a long time to make a decision on the successive requests. There is no apparent reason for this, especially given the ultimate decision. But that does not invalidate the Second Authorisation.

9. The main complaint is that the Minister did not comply with the requirements of s 13 of the Act in that the Minister did not “take all reasonable steps to consult with” Mr Newchurch and the traditional owners of the site before granting the authorisation.

10. In particular, Mr Roder submits that the Minister did not disclose the basis upon which the Minister had been asked to revoke the First Authorisation, which basis was relevant to the grant of the Second Authorisation. The Minister for Health asked the Minster to revoke the First Authorisation by a Minute dated 29 June 2010. The relevant part of the Minute, asserting an inability to obtain monitors required under the First Authorisation, is set out above. In a separate Minute of 29 June the Minister for Health requested an authorisation pursuant to s 23. The relevant part of that Minute is also set out above.

11. Mr Roder argues that the process of consultation did not disclose to the traditional owners the assertion by the Minister for Health to the effect that the conditions of the First Authorisation could not be met because of the approach taken by KNCHA.  He submits that this should have been disclosed in the process of consultation.

12. The Minister was given very detailed written advice from the Minister’s Department in connection with the request for a new authorisation for the Second Authorisation.  The advice is 20 pages long, and has a number of attachments.  It appears to me to be comprehensive and thorough.  It notes the interest and involvement of the Kaurna people, of KNCHA and the interest in the site of the Ramindjeri people.  The advice canvasses the engagement of monitors, and notes the Minister for Health’s “assertion” that inability to reach agreement on employment of Kaurna monitors was a “precipitative factor in the frustration of that authorisation”.  The advice notes practical difficulties that have been experienced in other cases in relation to monitors.  The advice then states (Exhibit D11, DAS 20 p.2):

    .The nature of large scale construction site activities such as are contemplated here means it is very unlikely that any Aboriginal objects will be observable during the actual process of earth removal.  It is impractical, and unsafe, to have people observing and inspecting major excavation works while they are underway.

    .Given the difficulties associated with the engagement and deployment of monitors on the scale of this project, along with the questionable benefits (viz. works are required to stop in any event if human remains are discovered, and Aboriginal objects are unlikely to be observable on an excavation of this scale), and considering the specific request of the Minister for Health, it is proposed, if you are minded to grant an authorisation, that conditions not be set requiring the engagements of monitors.

13. Mr Roder complains that the traditional owners did not know that this opinion about the utility of monitors had been expressed, and so had no opportunity to answer it.

14. Mr Roder also complains that proper consultation required a disclosure of Dr Smith’s report.  I have referred to that report above.

15. The issue for this Court in these proceedings is whether the Minister discharged the duty to “take all reasonable steps to consult …”.

16. I accept and find that the Minister knew that the Kaurna people, or at least some of them, claimed to be traditional owners of the site, for the purposes of the Act. That is apparent from the advice to the Minister, as is the fact that the Ramindjeri people also made a like claim. In light of that, the Minister was obliged to consult with the Kaurna people. In light of the information before the Minister, the Minister was also required to consult with KNCHA, because of its interest and involvement in the matter. It had “a particular interest in the matter”. The Minister appears to have accepted this. However, I repeat a point made earlier that KNCHA makes no complaint about the consultation with it. It is not a party to the proceedings.

17. I do not accept that the Minister was under a duty to consult with Mr Newchurch in particular.  I explained why this is so earlier in my reasons.  For present purposes Mr Newchurch is in the same position as others claiming to be traditional owners.  He is one of a group or class with whom the Minister had to consult.

18. In deciding the issue before the Court, it is not my function to decide who was right and who was wrong in relation to the issues that have arisen between the traditional owners and the Minister.  Nor is it my function to decide who was at fault.  It is not my function to decide whose version of various facts (giving rise to the dispute) (for example, the likelihood of Aboriginal objects or remains being found) is correct.  As the parties recognised in submissions, I am not in a position to do so, despite the voluminous material put before me by way of affidavit. 

19. My task is, bearing in mind the differences between the Minister and the traditional owners, and having regard to what passed between them, to decide whether what the Minister did amounted to taking all reasonable steps to consult with the traditional owners in relation to the Second Authorisation.  That requires me to consider the knowledge that each party had before the obligation to consult arose, the steps taken by way of consultation, and, in a general way, the content of that consultation.

20. Earlier in my reasons I summarised the events that took place between 22 June 2010, when the Crown Solicitor’s Office wrote to the solicitor for KNCHA indicating that the Minister for Health would request a new authorisation, and the Minister’s decision on 17 August 2010.  I outlined the steps taken by way of consultation.  Those steps are to be considered against the background of earlier dealings between the Minister and the traditional owners in relation to the site, and against the background of considerable contact between the Minister for Health and KNCHA, as well as the information about the site and the building project that had been given to or was available to KNCHA.  I am treating the knowledge of KNCHA as knowledge attributable to the traditional owners.  The case was argued on this basis.

21. I am satisfied that the Minister discharged the Minister’s obligation to the traditional owners and, although it has made no complaint, to KNCHA.

22. The request for the revocation of the First Authorisation, and for the grant of the Second Authorisation, arose out of the breakdown of the relationship between KNCHA and the Minister for Health.  That fact, and the reasons for it, were well known to KNCHA and to its solicitors.  Each party thought the other was at fault.  But the fact is, KNCHA knew that the Minister for Health had applied for a new authorisation because of dissatisfaction about the monitoring arrangements.  KNCHA knew that the Minister for Health considered KNCHA to be at fault.  It could have put a contrary argument to the Minister if it wished.

23. The dissatisfaction of KNCHA and Mr Newchurch with the consultation meeting is plain, and I can understand it.  At the meeting on 23 July 2010 the Minister’s representatives declined to discuss the revocation of the First Authorisation.  But KNCHA must have known that it was open to it to resume negotiations with the Minister for Health or with the Minister in relation to monitoring arrangements.  There was a stand off between the Minister for Health and KNCHA, but nothing to prevent KNCHA from making further proposals.  I cannot agree that the failure by the Minister to raise with KNCHA the dissatisfaction of the Minister for Health with the monitoring process means that there was not adequate consultation.  This was known to KNCHA.  It was not the duty of the Minister to settle the dispute between the parties, although the Minister was obliged to consider any submission that KNCHA might make in relation to monitoring.  As to the part of the advice to the Minister which commented on the utility of monitors, my response is that this was but one point in a very detailed advice to the Minister.  The Minister was not under a duty to disclose all of the advice to him.  The utility of monitors to observe large scale excavation was an obvious issue for consideration.  Nor was this a fact or fact of such significance that for that reason alone proper consultation required that it be disclosed. 

24. The fact is that the request for the Second Authorisation arose from the breakdown of the existing monitoring arrangements.  Everyone knew that.  Each side blamed the other.  KNCHA was at liberty to put to the Minister anything it wished on that topic.  In light of the circumstances from which the request for the Second Authorisation arose, there was no need to consult specifically on that topic.

25. For those reasons I do not accept Mr Roder’s complaint.

26. It is impossible to state in the abstract what is required by way of consultation under s 13. It will involve a consideration of the processes followed (eg written information, meetings), the time allowed, the opportunity for traditional owners to put their point of view, and a consideration of information provided by the Minister. The background to a particular proposal will always be relevant, as will the state of knowledge of the parties involved in the consultation process. That is the approach that I have taken. My conclusion is that the Minster took all reasonable steps to consult with the traditional owners. To say this is not to say that the Minister could not have done more. Nor is it to say that I agree with all of the advice given to the Minister, or with every claim by the Minister for Health. My conclusion is that looking at the knowledge KNCHA had, the circumstances giving rise to the Second Authorisation, the processes followed, the time allowed, the opportunity for KNCHA to put a case, and the information that was available on each side, that amounted to taking all reasonable steps to consult. I can understand the dissatisfaction of Mr Newchurch and the traditional owners with the consultation process. Unfortunately, the parties were at loggerheads. That is the origin of the problem. In a situation like this the Court can discharge only a limited role. All the Court can do is consider whether what was done was sufficient to amount to the taking of all reasonable steps to consult. It is not for the Court to say who was at fault in the breakdown of negotiations, or who was right or who was wrong in the disputes between the parties. For these reasons, I reject the submission by Mr Roder.

27. I also reject the submission that the Minister’s decision was so unreasonable as to indicate that it was not a proper exercise of the power under s 23. There is no substance at all in that point. While there are some deficiencies in the Second Authorisation (I referred to them earlier), in the light of the circumstances, it was open to the Minister to conclude that the requirement for monitors should be removed.

28. Mr Roder also submits that there were reasonable grounds to suspect bias or pre-judgment on the part of the Minster when the Minister granted the Second Authorisation, because in revoking the First Authorisation the Minister had accepted the assertion by the Minister for Health that the First Authorisation had been frustrated.  I do not accept this submission.  It assumes that the process of consultation that followed was not a genuine consultation.  The revocation of the First Authorisation brought the site works to a halt, for a time, and the Minister then considered what should replace the First Authorisation.  There are no grounds for thinking that the Minister had a closed mind on the question of why the monitoring arrangements did not work.  I reject this submission.

    Discretion

29. The Minister submits that if Mr Newchurch is successful in his challenge to the validity of the Minister’s decisions I should decline to grant relief.  I should decline because of delay on the part of Mr Newchurch, and prejudice that this will cause to the Minister of Health. 

30. The proceedings began in July 2010, almost six months after the First Authorisation.  Work on the site was well underway, and had been for some time.  The proceedings initially challenged the First Authorisation and the Delegation Decision. 

31. Mr Newchurch persisted with his appeal against the Master’s refusal to grant permission to proceed, and did so after the Revocation Decision and the Second Authorisation. Those decisions arguably made a challenge to the First Authorisation pointless.

32. The claim was reformulated in November 2010 to focus on the Delegation Decision, the Revocation Decision and the Second Authorisation.

33. Meantime major work was being carried out on the site of the SAHMRI.  By the time of the hearing before me all significant excavation work was more or less complete, and I understand that by the time of my decision such work will have been completed.  Very substantial amounts of money have been spent on the work, and heavy costs will be incurred by the Minister for Health if the work cannot now proceed.  I accept the facts relied on by the Minister.

34. If I were to quash only the Second Authorisation, there would be no authorisation in effect.  But, as it happens, the excavation work on the SAHMRI site is now complete.  No Aboriginal objects or remains were found on the site, and so there is no fear of any prosecution on that basis.  It is most unlikely that the Minister of Health would be prosecuted for work done on the site in reliance on the Second Authorisation were it to be quashed.  Whether the Minister for Health would be damaging, disturbing or interfering with an Aboriginal site by carrying out building work on the excavated SAHMRI site is an open question.  But there would be nothing to stop the Minister considering a new authorisation, and as the site is now excavated, and no objects or remains have been found, there is no obvious reason for refusing an authorisation that would cover the building work.  Nevertheless, there might be some delay.

35. If I quashed the Revocation Decision, the First Authorisation would remain in force. Once again, it is unlikely that the Minister of Health would be prosecuted for work carried out relying on the Second Authorisation, which presumably would fall with the quashing of the Revocation Decision. The First Authorisation would permit building work to continue on the SAHMRI site.

36. If I quashed the Delegation Decision, the Minister would have to reconsider the matter.  If the Minister were to delegate the Minister’s powers (this would depend on the Minister being satisfied of the statutory requirements) the Minister for Health would then have to deal with the traditional owners.  One can expect that this would be a difficult relationship.

37. To my mind this all points to the circumstance that events have overtaken these proceedings in relation to the SAHMRI site.  The real issue now is the effect of the Second Authorisation in relation to work to be done on the new Royal Adelaide Hospital, and the possibility of further authorisations.  I assume that work will involve excavation and building work.

1. The grant of relief would either leave the First Authorisation operative in relation to the work on the new hospital, or would mean that there was no authorisation relating to that work.  There would be nothing to stop the Minister considering a new authorisation.  That would take some time, but I am not in a position to say that the prejudice to the Minister for Health, as a result of delay, would warrant the refusal of relief. 

2. On the submissions advanced to me, I am not persuaded that I should refuse relief on the grounds of delay and associated prejudice to the Minister for Health.  However, I realise that events have moved on since the hearing of the proceedings on 14 and 15 December 2010.  Accordingly, were it necessary, I would have permitted the Minister to reopen the Minister’s case, for the purpose of dealing with any significant change in circumstances that has occurred since I heard submissions. 

   Orders

3. I refuse permission to proceed on grounds 2, 3 and 4. 

4. Having previously granted permission to proceed on the remaining grounds, I dismiss grounds 1, 5 and 6. 

5. I will hear the parties on the question of costs.