Ngankiburka-Mekauwe (Senior Woman of Water) Georgina WILLIAMS v Minister for Aboriginal Affairs & Reconciliation - [2018] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
NGANKIBURKA-MEKAUWE (SENIOR WOMAN OF WATER) GEORGINA WILLIAMS v MINISTER FOR ABORIGINAL AFFAIRS & RECONCILIATION & ANOR
[2018] SASC 163
Judgment of The Honourable Justice Stanley
18 October 2018
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - HERITAGE PROTECTION - SOUTH AUSTRALIA
The plaintiff seeks permission to bring an application for judicial review and an order extending the time within which to bring the application, which is 23 days out of time.
The plaintiff seeks review of a decision of the Minister for Aboriginal Affairs and Reconciliation (the Minister) pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) (the Act) authorising certain works undertaken by the City of Holdfast Bay at a Kingston Park site (the site) insofar as those works would or might involve damage, disturbance or interference with any Aboriginal site, object or remains.
The grounds of the application are that the Minister failed to take all reasonable steps to consult with the plaintiff, pursuant to s 13 of the Act, and that because the site was protected by directions given by a previous Minister in 1993 under s 24 of the Act, the Minister incorrectly exercised the powers provided under s 23 and s 13 in granting the authorisation.
Held (by Stanley J): Application for extension of time refused.
1. The Minister satisfied his obligation under s 13 of the Act to take all reasonable steps to consult with the plaintiff.
2. There is no evidence of a direction given by the relevant Minister in 1993 pursuant to s 24 of the Act in relation to the site. Accordingly, the Minister did not breach s 24 of the Act by failing to comply with the mandatory requirements for modifying a direction made under that section.
3. The plaintiff’s explanation for her failure to bring the proceedings within time is satisfactory.
4. The application for judicial review does not enjoy a reasonable prospect of success.
5. Even if the application for judicial review enjoyed a reasonable prospect of success, there would be no utility in the Court permitting the action to proceed.
6. Application for extension of time refused.
Aboriginal Heritage Act 1988 (SA) s 13, s 14, 2s 3, s 24; Limitation of Actions Act 1936 (SA) s 48, referred to.
Bradman v Allens Arthur Robinson (2009) 103 SASR 438, applied.
Ferdinands v District Court of South Australia & Ors [2010] SASC 265; Australian Social Welfare Union v Shillabeer [1992] SASC 3790; Hall v City of Burnside (2006) 102 SASR 298; Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29, discussed.
Heath v Adelaide Hills Council [2000] SASC 406; Chibanda v Chief Executive Queensland Health [2018] QSC 128; Starkey & Ors v State of South Australia [2011] SASCFC 164; Institute of Patent Agents v Lockwood [1894] AC 347 Stoke-on-Trent City Council v B&Q (Retail) Ltd [1984] AC 754; Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227; Graziers Association of New South Wales v Durkin (1930) 44 CLR 29; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49; Gouriet v Union of Post Office Workers [1978] AC 435; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; R v Adams (1935) 53 CLR 563; Beckwith v The Queen (1976) 135 CLR 569; R v Lavender (2005) 222 CLR 67; He Kaw Teh v The Queen (1985) 157 CLR 523; Aboriginal Legal Rights Movement v South Australia (No. 2) (1995) 64 SASR 558, considered.

NGANKIBURKA-MEKAUWE (SENIOR WOMAN OF WATER) GEORGINA WILLIAMS v MINISTER FOR ABORIGINAL AFFAIRS & RECONCILIATION & ANOR
[2018] SASC 163
STANLEY J.
Introduction

The plaintiff has brought an application for judicial review. The plaintiff seeks review of a decision of the Minister for Aboriginal Affairs and Reconciliation (the Minister)[1] made on 19 September 2017 pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) (the Act) authorising certain works undertaken by the City of Holdfast Bay (COHB) in relation to the Kingston Park Coast Park Project insofar as those works would or might involve damage, disturbance or interference with any Aboriginal site, object or remains.
[1] At the relevant time, The Honourable Kyam Maher MLC.
The application is 23 days out of time.
The plaintiff seeks permission to bring the application for judicial review and an order extending the time within which to bring the application.
The grounds of the application are that the Minister failed to take all reasonable steps to consult with the plaintiff, pursuant to s 13 of the Act, and that because the site was protected by directions given by a previous Minister in 1993 under s 24 of the Act, the Minister incorrectly exercised the powers provided under s 23 and s 13 in granting the authorisation.
On the application for judicial review, the plaintiff seeks orders that all actions currently in place following the Minister’s authorisation of 19 September 2017 cease immediately (order 1); that the Minister’s authorisation be set aside (order 2); that respectful and inclusive consultation be recommenced in relation to the Kingston Park Coastal Park Project in recognition of the plaintiff and her family’s clan interest in and custodial responsibility for the matter (order 3); and any other orders that the Court considers appropriate.
The defendants oppose an order extending time or a grant of permission to proceed.
The decision
The relevant decision made by the Minister on 19 September 2017 was an authorisation pursuant to s 23 of the Act that:
I authorise, pursuant to s 23 of the Act and subject to the conditions set out below, the City of Holdfast Bay ... and the other persons described herein to:
(a)     Damage, disturb or interfere with any Aboriginal site; and
(b)     Damage any Aboriginal object; and
(c)     Where any Aboriginal object or remains are found:
(i)disturb or interfere with the Aboriginal object or remains; and/or
(ii)remove the object or remains,
that may be found within the Authorisation Area in the course of undertaking any ground disturbing or any other activities within the Authorisation Area associated with the construction of the Kingston Park Coast Park Project as described in the Application dated 4 November 2016 (the Authorised Activities).
The “Authorisation Area” is the area hatched in red on Attachment 1 of this Authorisation and as described in Certificate of Title CT Volume 6166 Folio 560, attached as Attachment 2.
This Authorisation applies to:
1      City of Holdfast Bay;
2      Integrated Heritage Services Pty Ltd; and
3      any employees, agents, contractors and subcontractors of the COHB or Integrated Heritage Services (including employees or agents of the contractors or subcontractors), when performing the Authorised Activities.
Pursuant to s 14 of the Act, the following conditions apply to this s 23 Authorisation:
1      The persons to whom this authorisation applies must comply with the Aboriginal Heritage Discovery Protocols as appended to this Authorisation as Attachment 3 in relation to reporting and managing the discovery of any Aboriginal sites, objects or remains.
2 The Applicant (or representative) must ensure that all persons directly involved with ground disturbing activities, (including any contractors’ and subcontractors’ staff) participate prior to, or as soon as practicable after, commencing such activities, in the Department of State Development – Aboriginal Affairs and Reconciliation induction session to inform them of their obligations under the Aboriginal Heritage Act 1988 and the Aboriginal and Torres Strait Island Protection Act 1984 (Cth).
Relevant provisions of the Act
Section 13 of the Act provides:
13—Consultation on determinations, authorisations and regulations
(1)The Minister must—
(a)before making a determination under this Act; or
(b)before giving an authorisation under this Act; or
(c)before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object,
take all reasonable steps to consult with—
(d)the Committee; and
(e)any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and
(f)any—
(i)traditional owners; and
(ii)other Aboriginal persons,
who, in the opinion of the Minister, have a particular interest in the      matter.
(2)When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.
(3)     This section does not apply to—
(a)a determination under section 24(8); or
(b)an authorisation under section 27 or 36; or
(c)     an authorisation under Part 3 in relation to which a local heritage agreement has been approved under section 19I.
“Aboriginal object” is defined in s 3 to mean an object –
(a) of significance according to Aboriginal tradition; or
(b) of significance to Aboriginal archaeology, anthropology or history,
and includes an object or an object of a class declared by regulation to be an Aboriginal object but does not include an object or an object of a class excluded by regulation from the ambit of this definition.
“Aboriginal organisation” is defined in s 3 to mean an association, body or group comprised, or substantially comprised, of Aboriginal persons having as its principal objects the furtherance of interests of Aboriginal people.
“Aboriginal site” is defined in s 3 to mean 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.
“Aboriginal tradition” is defined in s 3 to mean 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. “The Committee” is defined in s 3 to mean the Aboriginal Heritage Committee established under Part 2 of the Act. “Land” is defined in s 3 to include land lying beneath inland waters or the sea. “Object” is defined in s 3 to include an object that forms part of, or is a fixture to, land. “Traditional owner” of an Aboriginal site or object is defined in s 3 to mean an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object.
Section 14 of the Act provides:
14—Authorisations subject to conditions
(1)An authorisation may be given by the Minister under this Act on such conditions as the Minister considers appropriate.
(2)A person who, without reasonable excuse, contravenes or fails to comply with a condition of an authorisation under this Act is guilty of an offence.
Maximum penalty:
(a)in the case of a body corporate—$50 000;
(b)in any other case—$10 000 or imprisonment for 6 months.
Section 23 of the Act provides:
23—Damage etc to sites, objects or remains
A person must not, without the authority of the Minister—
(a)damage, disturb or interfere with any Aboriginal site; or
(b)damage any Aboriginal object; or
(c)where any Aboriginal object or remains are found—
(i)disturb or interfere with the object or remains; or
(ii)remove the object or remains.
Maximum penalty:
(a)in the case of a body corporate—$50 000;
(b)in any other case—$10 000 or imprisonment for 6 months.
Section 24 of the Act provides:
24—Directions by Minister restricting access to sites, objects or remains
(1)Subject to this section, where the Minister is satisfied that it is necessary      for the protection or preservation of—
(a)an Aboriginal site, object or remains; or
(b)     a site, object or remains that the Minister has reason to believe may             be an Aboriginal site, object or remains,
the Minister may give directions prohibiting or restricting—
(c)access to the site or an area surrounding the site or to the object or             remains;
(d)     activities on or in relation to the site or an area surrounding the site              or in relation to the object or remains.
(2)The Minister must not give directions under subsection (1)(c) except with     the approval of the Governor.
(2a)The Minister must, before giving directions under this section, have     regard to—
(a)any local heritage agreement in respect of the site, object or remains; and
(b)any agreement to which Part 3 Division A2 applies that relates to the site, object or remains.
(3)Directions may be given under this section—
(a)if limited in their application to a particular person or persons—by notice in writing to that person or those persons; or
(b)if of general application—
(i)by notice published in the Gazette; or
(ii)    by notice published in a newspaper circulating generally                    throughout the State; or
(iii)     by the erection of signs in the vicinity of the site, area, object   or remains; or
(iv)by a combination of methods referred to in this paragraph,
as the Minister considers appropriate in the circumstances.
(4)Subject to subsection (5), the Minister must, before giving any directions       under this section, take reasonable steps to give not less than eight weeks notice of the proposed directions to—
(a)     the owner and occupier (if any) of private land in relation to which              the directions apply; and
(ab)    if there is a Recognised Aboriginal Representative Body in respect              of the area in which the Aboriginal site, object or remains are           located, or in respect of the Aboriginal site, object or remains—the                 Recognised Aboriginal Representative Body; and
(b)the Committee; and
(c)     any Aboriginal organisation that, in the opinion of the Minister, has               a particular interest in the matter; and
(d)a representative of—
(i)any traditional owners; and
(ii)any other Aboriginal persons,
who, in the opinion of the Minister, have a particular interest in the              matter.
(5)The Minister may, if satisfied that urgent action is necessary, give       directions under this section without the notice required by      subsection (4), but must, in that event, take reasonable steps to give the        notice as soon as practicable after giving the directions.
(6)A notice must—
(a)set out the directions; and
(b)give the reasons for the directions; and
(c)     state that any interested person or body may make representations              to the Minister with respect to the directions; and
(d)if given under subsection (3)(a), set out the penalty for contravening or failing to comply with a direction.
(7)Where directions are given under this section in relation to a site or object     that is not entered in the Register of Aboriginal Sites and Objects, the Minister must, as soon as practicable—
(a)determine whether the site or object should be entered in the             Register; and
(b)if the Minister determines that the site or object should not be entered in the Register—revoke the directions.
(8)Where directions are given under this section in relation to remains not known to be Aboriginal remains, the Minister must, as soon as         practicable—
(a)determine whether the remains are Aboriginal remains; and
(b)     if the Minister determines that the remains are not Aboriginal             remains—revoke the directions.
(9)The Minister must—
(a)give due consideration to any representations made with respect to              the directions; and
(b)if satisfied (whether on the basis of such representations or       otherwise) that the directions should be revoked or modified, revoke or modify the directions accordingly.
(10)Within 30 days after the sale of land in relation to which directions under      this section apply, the vendor must provide the Minister with the     following information in writing—
(a)the date of the sale; and
(b)the name and address of the purchaser.
Maximum penalty: $2 000.
(11)This section does not apply to Aboriginal objects or remains that are in a       public or private collection.
The plaintiff
The plaintiff gave evidence that she is a female elder (Ngankiburka) Clan-to-Country custodian and traditional owner for Kaurna northern/southern, Parnka/Ramindjeri to Narrunga/Adjadhura; and Kaurna Native Title holder. She is the female elder Clan-to-Country custodian of the Tjirbruki songline; the Tjirbruki Dreaming Track. The Kingston Park Spring site forms part of the Tjirbruki Dreaming Track.
The plaintiff is 78 years of age. She was born in Narrunga country at Wallaroo and grew up in the Point Pearce Mission on the Yorke Peninsula. In her youth she moved back and forth to the Kaurna country of the Adelaide Plains. She was close to her father, paternal grandfather and uncle, all of whom taught her the culture, traditions and sacred beliefs of her people. She learned from elders of the spiritual connection with her culture and law, which is intimately connected with the land of her people. She gave evidence of how the connection between an Aboriginal person and his or her country is a visceral experience.
The plaintiff gave evidence that she has been responsible for protecting the Tjirbruki Dreaming Track since the early 1970s. As Aboriginal Clan-to-Country custodian, the plaintiff assumes responsibility to teach children and young people the history, traditions, and spiritual significance of country.
The plaintiff is a qualified nurse, but also an educator and mentor for Aboriginal and non-Aboriginal academics, councils, conservationists, artists, historians and social groups. This is part of her social and cultural responsibility as Ngankiburka-Mekauwe (Senior Woman of Water). The plaintiff is a founding member of the Ngurlongga Nunga Community Services Centre Inc; the Kaurna Heritage Committee; and was the original claimant on the Kaurna Native Title claim. She has been instrumental in funding and establishing the Living Kaurna Cultural Centre at Warriparinga, and has been employed as cultural advisor on the development of the Warriparinga Interactive History Project at the Marion City Council. She has also worked with the Department of Environment and Cultural Heritage to provide advice to the Minister in relation to site protection on the Adelaide Plains. From at least 1998 to 2002, when it was dismantled, the plaintiff was a member of the Tjirbruki Dreaming Track Forum established by a number of local councils, including the COHB to address the concerns of the traditional custodians of the Tjirbruki Dreaming Track.

The Court received evidence of the plaintiff’s involvement since 1998 with the COHB in relation to the Tjirbruki Spring and Dreaming Track. The plaintiff continues to assume responsibility on behalf of the Williams family clan, and in accordance with her custodial duty, for the ongoing protection of Aboriginal cultural heritage at the Kingston Park Spring site and surrounds.
The defendants did not challenge the plaintiff’s standing to bring the application for judicial review.
The plaintiff gave evidence that there are three other Clan-to-Country custodians of the Tjirbruki Dreaming namely, Professor Irene Watson, Karl Winda Telfer and Joan Lamont Williams.
The plaintiff also gave evidence of health problems she experienced in early 2018 which required hospitalisation. In addition the plaintiff is the full time carer of her eight year old great granddaughter. During late 2017 the plaintiff was also caring for her great grandson who was under two years of age. She also has other familial responsibilities to her extended family. Further, the plaintiff gave evidence that she has difficulty in using a computer.
The works
The works the subject of the COHB’s application for authorisation pursuant to s 23 comprise the civil construction of the coast park shared use pathway and associated elements at Kingston Park (the Project).
Stage 1 of the Project provided for the construction of a shared use pathway and associated elements from immediately south of the Brighton caravan park to the COHB’s southern boundary along Burnham Road, Kingston Park, and included the construction of a concrete lightly washed exposed aggregate pathway measuring between 2.5 metres and 3.5 metres in width and approximately 440 metres in length, and a timber hardwood bridge over the Tjirbruki spring outlet.
Stage 2 of the Project provided for the construction of a shared use pathway and associated elements from immediately south of the Seacliff Surf Life Saving Club drain outlet to the boundary of the southern edge of the Brighton caravan park carpark and included the construction of a concrete lightly washed exposed aggregate pathway measuring 3.5 metres in width and approximately 280 metres in length; an exeloo toilet approximately 15 metres south of the Seacliff Surf Life Saving Club and immediately adjacent to the eastern side of the pathway; two timber decked viewing platforms located partially over the dunes on the western side of the pathway; a disabled access ramp into the caravan park on the eastern side of the pathway; and modification at the western end of the caravan park carpark, including a new paved area with a new shower, drinking fountain, kerb and gutter.
Preparatory work for construction of the project commenced in October 2017. Construction commenced on 25 October 2017 with the stripping of grass and line cutting for the first part of the pathway at the Burnham Road end. Construction continued between November 2017 and May 2018.
The proceedings were served on the COHB by the plaintiff on 25 May 2018. By then the works were substantially complete. All that remained to complete the works was the installation of handrails on the disabled access ramp into the caravan park on the eastern side of the pathway. That work was completed on 14 June 2018.
In addition, there is further work to be performed to reseal the existing bitumen carpark immediately south of the Brighton caravan park to the east of the pathway and the replacement of the kerb and gutter on the southern side of the carpark. The COHB gave evidence that this work would not cause damage, disturbance or interference with Aboriginal sites, objects or remains. This work does not form part of the construction contract and no decision has been made as to when this work will commence.
There is an issue between the plaintiff and the COHB over the artworks identified as the Kingston Park Coast Path / Tjirbruki Spring artworks. There was evidence the plaintiff objected to the artist brief prepared by the COHB for this work. There was a dispute whether the proposed art work forms part of the works the subject of the impugned decision. There is some evidence that the proposed artworks do not form part of the works the subject of the s 23 authorisation, namely, the terms of the authorisation itself, the project description and the specifications for the project. The evidence suggests that the authorisation related only to the building work involved in the project.
It is unnecessary to decide this question given the undertaking proffered to the Court by counsel for the COHB that COHB would not undertake any further work in relation to the artworks without obtaining a further s 23 authorisation from the Minister in respect of those works. This forms part of a broader undertaking proffered by the COHB to the Court that it does not intend to, and will not, undertake any further works in reliance upon the existing authorisation the subject of the impugned decision.
The notice to the plaintiff
By letter addressed to the plaintiff from Nerida Saunders, the Executive Director of Aboriginal Affairs and Reconciliation in the Department of State Development dated 27 January 2017 the plaintiff was advised that the Minister had received an application for authorisation under s 23 from the COHB and others in relation to the proposed Kingston Park Coast Park shared use pathway and associated structures and the reseal and kerb realignment of the Brighton Caravan Park carpark. Accompanying the letter was an information pack concerning the project’s scope, description and application area. The letter notes that before considering an authorisation pursuant to s 23 the Minister is required to take all reasonable steps to consult, inter alia, any traditional owners and other Aboriginal persons who in the opinion of the Minister have a particular interest in the matter. The letter states, “Interested Aboriginal organisations, traditional owners and Aboriginal persons are invited to attend and participate” in a s 13 consultation meeting which was to be held on 16 February 2017. The letter informs the plaintiff that separate meetings with interested Aboriginal parties may be held concurrently on the same day if prior requests were made to the Department by 13 February 2017. The letter then invites the plaintiff to make a submission pursuant to s 13 of the Act by writing or telephone. The letter directs the plaintiff to a contact person if she required more information or wished to make a written or telephone submission in relation to the application. The letter advised that such submission should be received by 6 March 2017.
The plaintiff does not dispute that she received this letter. The plaintiff gives evidence that she cannot recall when or through what means she received the letter but as a result of searches she has undertaken she has located the original. It appears that the plaintiff overlooked this notice.
Contact between the plaintiff and the Minister’s department between 27 January 2017 and 19 September 2017
There is evidence of email communication between the plaintiff and officers of the Aboriginal Affairs and Reconciliation division of the Department of State Development (DSD-AAR) on 28 June 2017, 28 August 2017 and 11 September 2017. Those emails concern the Tjirbruki Dreaming Track and the operation of the Act. However, they do not expressly refer to the application by the COHB for a s 23 authorisation in relation to the works.
The plaintiff further gave evidence that she participated in meetings with officers of DSD-AAR on 27 June 2017, 1 August 2017 and 26 September 2017. The plaintiff says that the officers who attended the meeting on 26 September 2017 did not refer to the decision of the Minister granting the s 23 authorisation made a week earlier.
The plaintiff gave evidence that it was 10 October 2017 she discovered the fact of the Minister’s decision granting the s 23 authorisation. In response she sent an email to the Minister on 12 October 2017 calling for the Minister to revoke the authorisation; issue a moratorium on any development pending a reinstated, reconfigured, Tjirbruki forum; and alerting the Minister to the discussions the plaintiff had had with the Aboriginal Heritage team. She took steps to establish the reasons for the s 23 authorisation through a Freedom of Information application and complaint to the Ombudsman before she brought the within application. The plaintiff says that, at that time, she was unaware of the availability of the remedy of an action for judicial review. She learnt of the availability of judicial review in late February 2018. The plaintiff says that at that time she was engaged in a range of civic activities associated with her responsibilities as the Clan-to-Country custodian, including engagement in the Kuarna Native Title claim. All this was occurring against the background of her health issues and family responsibilities.
The summons was filed on 10 April 2018.
Contact between the plaintiff and the COHB in the relevant period
The plaintiff also gave evidence of her communications with the COHB during the relevant period. The plaintiff referred to a meeting on 21 November 2017 she organised to discuss her distress over the works being progressed under the Minister’s s 23 authorisation. There was a further meeting on 5 December 2017 concerning the works. At that meeting she reiterated her objections to the ongoing works and the artist brief. On 6 December 2017 the plaintiff sent an email to COHB in relation to the proposed damage and disturbance of registered sites along the Tjirbruki Dreaming Track. This resulted in a meeting on 1 February 2018 with Jared Thomas from Arts SA to discuss the plaintiff’s objections to the artist brief. The plaintiff was invited to a meeting on 14 March 2018 by a Mr Mott who apparently is the principal consultant / senior archaeologist to the COHB for the purpose of discussing the artist brief and the draft Kingston Park master plan. The plaintiff was unable to attend this meeting. The evidence is that all these meetings occurred after the plaintiff learnt of the fact of the s 23 authorisation.
Judicial review
SCR 200[2] provides:
200 – Time for commencement of action
(1)An action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date.
(2)If an action for judicial review is commenced more than 6 months after the grounds for the review arose, the action cannot proceed further in the Court without the Court's permission.
(3)An application under subrule (2) is to be made by interlocutory application seeking an extension of time in which to commence the action and permission to proceed filed with the originating process supported by an affidavit explaining the delay.
(4)On the hearing of an application under subrule (3), the Court may grant or refuse the application for an extension of time in which to commence the action and permission to proceed or may order that either or both be determined at trial.
[2] Supreme Court Civil Rules 2006 (SA).
There is no doubt that the Court is empowered to extend the time within which an action for judicial review must be commenced.[3]
[3] Heath v Adelaide Hills Council [2000] SASC 406.
Under the preceding rule,[4] which was in similar terms to the current rule, the Court developed a body of principles applicable to the exercise of the discretion to extend time.
[4] Supreme Court Rules 1987 (SA), SCR 98.06.
In Ferdinands v District Court of South Australia & Ors[5] Gray J said:[6]
Although not amounting to exhaustive factors for consideration, there are generally four factors to be weighed by the Court when considering an application for an extension of time: the length of the delay; the reason for the delay; whether the applicant has prospects of success; and, the extent of any prejudice suffered by the respondent to the application.
[Citations omitted.]
[5] [2010] SASC 265.
[6] [2010] SASC 265 at [19].
An application for judicial review which does not enjoy a reasonable prospect of success is unlikely to be granted an extension of time, even if the length of the delay is short and there is a satisfactory explanation for the delay.[7] In Australian Social Welfare Union v Shillabeer[8] Mullighan J held that an extension of time within which to bring an action for judicial review should not be granted if the plaintiff has no reasonable prospect of succeeding on the substantive application.
[7] Chibanda v Chief Executive Queensland Health [2018] QSC 128 at [21].
[8] [1992] SASC 3790.
That approach reflects the principle that underpins the imposition of the six month time limit as explained in Hall v City of Burnside[9] where Doyle CJ, with whom Duggan J agreed, said:[10]
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
I do not suggest that the judge overlooked this point. I merely emphasise that when considering whether the interests of justice require that an extension be granted (as the plaintiffs had to demonstrate), substantial weight should be given to the fact that the time limit has been imposed, and to the public interest and any relevant private interest (here, the interests of City Apartments) in the validity of the decision after the expiry of the limitation period.
[9] [2006] SASC 283, (2006) 102 SASR 298.
[10] [2006] SASC 283 at [47]-[51], (2006) 102 SASR 298 at 304-305.
In my view those principles apply equally to the current rule. There are sound policy considerations for this approach. First, the relatively short limitation period imposed by SCR 200 serves an important public purpose. Government, corporate bodies and individuals are entitled to organise their affairs and proceed on the basis that a decision is not going to be the subject of judicial review if an application for judicial review is not brought within a reasonable time.[11] This consideration is particularly relevant when the impugned decision involves the giving of an authority to engage in conduct that may otherwise be unlawful. Second, a defendant should not be put to the cost and trouble of defending an action for judicial review where the plaintiff has little prospect of success. Further, a plaintiff who is refused permission to proceed when the action was not commenced within the limitation period because the action does not enjoy a reasonable prospect of success is spared the exposure to costs orders that would follow a trial culminating in the dismissal of the substantive action for judicial review.
[11] Chibanda v Chief Executive, Queensland Health [2018] QSC 128 at [19].
Frequently consideration of the prospects of success must be evaluated at a preliminary stage of the proceedings when the Court does not have all the evidence and has not heard full argument on the merits. Accordingly, the Court at that preliminary stage will consider whether the applicant has established that there is an arguable case or a prima facie issue of substance that calls for determination. That imposes a threshold analogous to that adopted when considering whether an application for summary judgment should be granted.
In this regard I adopt the approach taken by Kourakis J (as he then was) in Bradman v Allens Arthur Robinson.[12]This was a case in which the defendants applied for summary judgment against the plaintiff on the ground that the plaintiff’s action was statute barred and there was no basis upon which the Court could exercise its discretion under s 48 of the Limitation of Actions Act 1936 (SA) to extend the limitation period. While the decision was ultimately overturned by the Full Court, the Full Court’s reasons for doing so did not touch this passage in his Honour’s reasons. Kourakis J said:[13]
I accept that the exercise of a discretion, like the discretion to extend time pursuant to s 48 of the Act, is particularly susceptible to subtle factual considerations which may emerge at trial. For that reason, even more caution must be taken before summarily rejecting a claim that seeks a favourable exercise of a discretion.
Even though s 48(5) of the Act expressly provides that an application for an extension of time may be determined before the close of pleadings, it seems to me that that subsection is addressed more to preliminary determinations of the issue on a full hearing of the application than to summary judgment applications. Nonetheless, I am satisfied that if it is shown that an application for a favourable exercise of a discretion is bound to fail it should be disposed of summarily. There is no reason to distinguish doomed applications for discretionary relief from other doomed factual and legal claims. The summary dismissal of a discretionary claim does not mean that the relevant discretion has been exercised without having regard to all relevant matters. The claim will only be summarily dismissed where it is shown that, realistically, no further material which could possibly affect the exercise of the discretion could emerge at trial.
[12] [2009] SASC 80, (2009) 103 SASR 438.
[13] [2009] SASC 80 at [30]-[31], (2009) 103 SASR 438 at 446.
In this case the manner in which the matter unfolded has resulted in the parties putting the relevant evidence on the merits on which they rely before the Court and the Court has had the benefit of extensive argument on the grounds of the application for judicial review. Accordingly, I am in a stronger position than will frequently be the case to determine whether the application has a reasonable prospect of success.
In that context I turn to consider the two grounds.
Did the Minister breach s 13 by failing to take all reasonable steps to consult with the plaintiff?
Section 13 of the Act imposes a mandatory obligation upon the Minister before, inter alia, giving an authorisation under the Act to take all reasonable steps to consult with the Aboriginal Heritage Committee; any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and any traditional owners and other Aboriginal persons, who also, in the opinion of the Minister, have a particular interest in the matter.

I am satisfied that the plaintiff was a person within the meaning of s 13(1)(f) who had a particular interest in the s 23 authorisation of the works proposed by the COHB. I find that the Minister was of the same opinion as evidenced by the letter from DSD-AAR to the plaintiff dated 27 January 2017. At issue is whether there is a reasonable prospect of the plaintiff succeeding in her contention that the Minister failed to discharge the obligation to take all reasonable steps to consult with her in the circumstances of this case.
The standard of “all reasonable steps” is determined objectively by reference to the particular circumstances of the case. Any assessment of “reasonable steps” must be made in the circumstances as they were at the time, rather than with the benefit of hindsight. The content of the obligation to “take all reasonable steps to consult with” various prescribed persons in s 13(1) is informed by the statutory context and purpose of the obligation.
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 authorisation an offence. The provision of the authority of the Minister renders lawful conduct that might otherwise constitute an offence. Section 13(1) conditions the exercise of the Minister’s power, inter alia, to give an authorisation pursuant to s 23 on the Minister first consulting with certain groups and persons.
The Act does not define the meaning of the obligation imposed on the Minister to take all reasonable steps to consult. What amounts to consultation is a question that will depend on the facts and circumstances of each case.[14]
[14] Rollo v Minister of Town and Country Planning [1947] 2 All ER 488 at 495; Town of Gawler v Minister for Transport and Urban Planning and the State of SA [2002] SASC 85 at [14], (2002) 119 LGERA 287 at 292.
In R v Whally; ex parte Bordin & Co[15] the Supreme Court of Victoria had to consider what consultation the members of a statutory committee had to undertake before they could make a declaration under the provisions of the Local Government Act 1958 (Vic). Gowans J held that the obligation to consult required, first, the giving of sufficient information to the person consulted to enable that person to express an informed view on the decision to be made and, second, the opportunity for that person’s view to be received and considered by the decision maker.
[15] [1972] VR 748.
The meaning of “consultation” was considered by the Privy Council in Port Louis Corporation v Attorney-General of Mauritius.[16] The Privy Council was asked to determine whether the Governor in Council, in deciding to alter city boundaries, had complied with a statutory obligation to consult with the local authority concerned. The Privy Council advised:[17]
[T]he nature and object of consultation must be related to the circumstances which call for it. The situation to which section 73(1) relates is clear. If there is a proposal to alter the boundaries of a town, or the boundaries of a district, or the boundaries of a village, such alteration must not be made until after consultation with the local authority concerned. It follows that the local authority must know what is proposed before they can be expected to give their views. This does not however involve that the local authority are entitled to demand assurances as to the probable form of the solutions of the problems that may be likely to arise in the event of there being an alteration of boundaries. The local authority must be told what alterations of boundaries are proposed. They must be given a reasonable opportunity to state their views. They might wish to state them in writing or they might wish to state them orally. The local authority cannot be forced or compelled to advance any views but it would be unreasonable if the Governor in Council could be prevented from making a decision because a local authority had no views or did not wish to express or declined to express any views. The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed: they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties: they must be free to say what they think.
[16] [1965] AC 1111.
[17] [1965] AC 1111 at 1124.
Port Louis was applied by the New South Wales Court of Appeal in Leichardt Municipal Council v Minister for Planning.[18] Sheller JA, with whom Priestley and Meagher JJA agreed, considered a provision of an environmental planning statute which required the Director of Planning to “ensure that consultations” were held with various bodies in the preparation of an environmental study or plan. He said:[19]
The parliament must be taken to have chosen the word “consultation” conscious of its use historically in this type of legislation. In this case proper consultation … required that the Council know what was proposed before it was expected to give its views and that the Council be given a reasonable opportunity to state its views.
[18] (1992) 78 LGERA 306.
[19] [1992] LGERA 306 at 338.
In Bond v WorkCover Corporation (SA)[20] Gray J considered a challenge to the validity of a regulation made pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) which excluded specific classes of workers from coverage but only after consultation with an advisory committee established under that legislation. The plaintiff in that matter sought a declaration the relevant regulations were invalid on the basis there had been no compliance with the requirement for consultation with the advisory committee. Gray J held that “consultation” for that purpose could be taken to occur when the advisory committee was made aware that it was being consulted about proposed regulations and where it was given a reasonable opportunity to express any views that it may have regarding the proposed regulations.[21] He considered that all that was required for compliance with the statutory requirement for consultation was that the advisory committee be informed of the proposed regulations and be given the opportunity to comment upon them if it so desired.[22]
[20] [2005] SASC 464, (2005) 93 SASR 315.
[21] [2005] SASC 464 at [49], (2005) 93 SASR 315 at 329.
[22] [2005] SASC 464 at [52], (2005) 93 SASR 315 at 329.
In Aboriginal Legal Rights Movement Inc v South Australia (No. 2)[23] the Full Court granted a declaration that authorisations given by the Minister for Aboriginal Affairs pursuant to s 35 of the Act permitting the divulgence of information relating to an Aboriginal site, object or remains or of Aboriginal tradition, were invalid by virtue of the Minister’s failure to comply with the process of consultation required by s 13 of the Act.
[23] [1995] SASC 5225, (1995) 64 SASR 558.
Doyle CJ, with whom Bollen J agreed, held that in deciding whether the required consultation has taken place the function of the Court is not to impose its own view of what is appropriate by way of consultation in a particular case. The question for the Court is whether the process followed by the Minister amounts to compliance with the statutory requirement. There were two authorisations sought. They were in wide terms. There were a wide range of Aboriginal people who might have an interest in the authorisations. In these circumstances the Chief Justice concluded that the time allowed for consultation was inadequate and in those circumstances it could not be said that the Minister took all reasonable steps to consult with the relevant persons. Debelle J came to the same conclusion. He said that what is an appropriate length of time for the consultation process will vary according to the circumstances of each particular case. Those circumstances may include the nature of the determination or authorisation which the Minister proposes to make or the urgency of the matter. The requirement to consult does not necessarily mean that the process of consultation should occupy a long period of time.
In Newchurch v Minister for Aboriginal Affairs and Reconciliation[24] Doyle CJ said:[25]
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.
[24] [2011] SASC 29.
[25] [2011] SASC 29 at [157].
The obligation imposed by s 13 does not require the Minister to consult personally with each of the persons identified in s 13(1)(d), (e) and (f). That is not practical. The obligation to consult imposed on the Minister by s 13 is qualified by the words “take all reasonable steps to”. While this would not preclude personal consultation, it does not require it.[26] They are words of limitation. The yardstick of “all reasonable steps” implies a recognition that it will not always be practical to consult with every person or group identified in s 13(1), particularly those groups or persons identified in placita (e) and (f). Some persons may not be readily contactable. They may live remotely. Their whereabouts may be difficult to identify. They may have problems with some modes of communication. The requirement upon the Minister to consult such people will vary accordingly. However, it is important to recognise that the obligation to consult is imposed upon the Minister. The nature and extent of the obligation to consult must be readily capable of being ascertained by the Minister because it is the Minister who must perform the statutory obligation. It is necessary that the Minister know what he or she must do to fulfil the obligation. Underlying the concept of “consultation” in this context is a process of inviting the expression of views and the opportunity to submit evidence by the interested person or group based on material communicated to that person or group. “Consultation” is generally considered to be a reciprocal process. However, a person or group may not be interested in expressing a view or providing evidence to the Minister. A group or persons who, in the opinion of the Minister, have a particular interest in a matter, may not avail themselves of the Minister’s invitation. They are not obliged to do so. Further, if they avail themselves of the invitation to submit their views and to support those views with evidence, the Minister is not obliged to accept their views or act upon them.[27]
[26] Starkey & Ors v State of South Australia [2011] SASCFC 164 at [190].
[27] Aboriginal Legal Rights Movement Inc v South Australia(No. 2) (1995) 64 SASR 558 at 565.
The plaintiff’s case is that the letter of 27 January 2017 did not constitute all reasonable steps to consult with her. The plaintiff contends that it was incumbent upon the Minister and the officers of his Department, knowing that she had not responded to the letter of 27 January 2017 nor attended the scheduled meeting on 16 February 2017, to have made further contact with the plaintiff to obtain her views in relation to the s 23 authorisation request, given the knowledge of the Minister and/or the officers of DSD-AAR of the plaintiff’s interest in, and engagement with, the protection of the Tjirbruki Dreaming Track. The plaintiff submits that given there were only four Clan-to-Country custodians of the Tjirbruki Dreaming Track, it was not onerous or administratively burdensome for the Minister to have taken further steps to consult her so as to obtain her views and afford her the opportunity to submit evidence in relation to the request for a s 23 authorisation.
In my view the plaintiff’s contention is not reasonably arguable.
The letter to the plaintiff from Ms Saunders, on behalf of the Minister, of 27 January 2017 was an invitation to the plaintiff to participate in a consultation process. That invitation offered the plaintiff the opportunity to make submissions by telephone, in writing and/or at a meeting.
In my view this was sufficient, in these circumstances, for the Minister to satisfy his obligation to take all reasonable steps to consult with the plaintiff. All that was required was that the plaintiff be informed of the proposed authorisation and the facts relevant to the Project and be given the opportunity to comment upon them if she so desired. That is what occurred. It is not an objectively reasonable step to require the Minister in the circumstances that existed here, having written to the plaintiff and provided her with material relevant to the request for a s 23 authorisation of the works, to have made further attempts to contact her in the absence of a response to the invitation contained in the letter of 27 January 2017. It is not objectively reasonable to impose upon the Minister an obligation to speculate that the plaintiff may have overlooked or not received any invitation to engage in consultation and, as a consequence, to attempt further contact with her in order again to solicit her views in relation to the matter.
Pursuant to s 13 the Minister is obliged to contact a number of groups and an indeterminate number of persons for the purposes of consultation before giving an authorisation pursuant to s 23. There is no objective reason for the Minister to consider that the plaintiff was incapable of understanding the import of the letter of 27 January 2017. On the contrary, the evidence supports the conclusion that the plaintiff is a person with high level communication skills, albeit one who is not adept with a computer. I am satisfied on the evidence of her self-representation before the Court and of her written communications that she enjoys a high level of oral and written expression. In the circumstances the Minister and the officers of his department were entitled to assume that the plaintiff would, if interested, respond to the invitation contained in the letter of 27 January 2017.
In this case there is no suggestion that the time allowed for consultation was inadequate or the process adopted for the purposes of consultation did not afford a proper opportunity for consultation. Rather, the plaintiff’s complaint is that more should have been done by the Minister and his officers to obtain her views on whether to grant the s 23 authorisation. In this context I note the paradox in the plaintiff’s submission that the Minister should have done more to consult her because he and his officers were aware of her objections to the works. The paradox arises from a misconception on the part of the plaintiff that the Minister could not give an authorisation pursuant to s 23 absent her consent.
Accordingly, I do not consider the contention that the Minister contravened the obligation imposed upon him pursuant to s 13(1)(f) to take all reasonable steps to consult with the plaintiff enjoys a reasonable prospect of success.
I turn to consider the second ground of the application.
Did the Minister contravene s 24 by granting the authorisation pursuant to s 23 given the 1993 direction by the Minister pursuant to s 24 for the protection of the Kingston Park Tjirbruki Spring Site?
The plaintiff contends that because the site of the works was protected by a s 24 direction given in 1993 by the then Minister for Aboriginal Affairs,[28] the relevant Minister in this matter incorrectly exercised the powers provided under s 13 and s 23 in granting the authorisation and thereby failed to take account of, or comply with, the mandatory requirements set out in s 24 and, in particular, subsection 24(4) and (6) to revoke or modify the 1993 direction.
[28] The Honourable Kym Mayes MP.
Section 24 confers upon the Minister the power to give directions prohibiting or restricting access to an Aboriginal site or to Aboriginal objects or remains, or activities on an area surrounding the site or in relation to the objects or remains, where it is necessary for the protection or preservation of the site or the objects or remains.
Section 24(4) obliges the Minster before giving any directions to take reasonable steps to give notice of those proposed directions to various groups and persons including a representative of any traditional owners and any other Aboriginal persons who, in the opinion of the Minister, have a particular interest in the matter. Section 24(6) prescribes the content of that notice.
I do not consider this ground enjoys a reasonable prospect of success.
I come to this conclusion on the basis that the premise of the ground is the existence of a direction given by the relevant Minister pursuant to s 24 of the Act in relation to the Kingston Park Tjirbruki Spring site.
The only evidence adduced by the plaintiff for the existence of such a direction is a copy of a letter dated 4 February 1993 from the then Minister to the Secretary of the Friends of the Earth. It is necessary to set out the terms of that letter which are as follows:
I propose to give the following direction under Section 24(1) of the Aboriginal Heritage Act 1988 (SA), in relation to the Kingston Park Tjirbruki Spring Site located on Section 1540 hundred of Noarlunga.
I direct that any activities on or in relation to or in the area surrounding the Kingston Park Tjirbruki Spring Site, registered number 6627-3336 which may damage, disturb or interfere with the site are prohibited.
You are invited to make any representations you wish to me in respect of the above direction within eight (8) weeks of receipt of this letter.
This is not evidence of the then Minister giving a direction pursuant to s 24. It merely is evidence the Minister proposed to do so, and invited representations in relation to the proposal. The plaintiff is unable to adduce any evidence that the then Minister ultimately gave the proposed direction referred to in the letter. On the contrary, the Minister adduced affidavit evidence from Toby James Forde who is the Manager, Legislative Review, in DPC-AAR that he undertook a search of the electronic databases held by the DPC-AAR and its hardcopy files, and could not find the original or a copy of any direction having been given by the former Minister pursuant to s 24 in relation to the Kingston Park Tjirbruki Spring site. Further, Mr Forde deposed that he could not find any document that evidences the making of such a direction.
Accordingly, the second ground lacks a necessary evidentiary foundation. There is no reasonable prospect it will succeed.
In any event, even if the conclusion is erroneous that neither of the plaintiff’s grounds enjoy a reasonable prospect of success, I am satisfied that the application for judicial review does not enjoy a reasonable prospect of success because it lacks utility.
The application lacks utility
Order 1 seeks to stop the work currently undertaken in accordance with the decision of the Minister giving the authorisation pursuant to s 23. The order sought appears to be in the nature of an injunction. On the evidence, there is no utility in the Court making such an order. The work undertaken by the COHB in reliance on the Minister’s authorisation is complete. I reject the plaintiff’s submission to the contrary. In any event, the COHB is not taking, and does not intend to take, any further work in reliance on the Minister’s authorisation. It has proffered an undertaking to the Court to this effect. The undertaking is as good as an injunction. In the circumstances, the Court would not make the order.

Further, the order sought by the plaintiff is wider than required to prevent a contravention of s 23. Section 23 prohibits damage or disturbance of, and interference with, Aboriginal sites. It makes such conduct unlawful and exposes the person responsible to criminal sanction. An order that purported to restrain the COHB from undertaking the project works would not be coterminous with the prohibition in s 23. Such order would restrain a broader class of conduct which would include lawful conduct. If the order sought was confined to preventing conduct prohibited by s 23, the Court still would refrain from making such an order. Section 23 creates a criminal offence and the proper means for its enforcement is the criminal law and the criminal trial process, with all the safeguards that process enshrines. An order restraining that same conduct would expose the COHB to a separate and additional penalty cumulative upon the penal sanction prescribed by Parliament.[29] An injunction to restrain a breach of the criminal law would only be made in the most exceptional circumstances,[30] such as repeated and concerted contraventions in disregard of inadequate criminal penalties.[31]
[29] Institute of Patent Agents v Lockwood [1894] AC 347 at 362; Stoke-on-Trent City Council v B&Q (Retail) Ltd [1984] AC 754 at 776; Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227; Graziers Association of New South Wales v Durkin (1930) 44 CLR 29 at 35-36.
[30] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49; Gouriet v Union of Post Office Workers [1978] AC 435 at 481, 491, 497-500 and 519-521.
[31] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49; Gouriet v Union of Post Office Workers [1978] AC 435 at 481.
Order 2 seeks to quash the authorisation. It is an order in the nature of certiorari. The effect of such an order is to quash “the legal effect” of the decision. There is no utility in such an order in the present case. The legal effect of the authorisation which the plaintiff seeks to quash is to authorise the damage, disturbance or interference of Aboriginal sites insofar as the works the subject of the authorisation would involve such damage, disturbance or interference by the COHB or its agents.
The COHB has provided to the Court an undertaking that it will not engage in any further works in reliance on the authorisation in the future. Insofar as the COHB has already undertaken works, there is no utility in quashing the authorisation after the event. Quashing the authorisation would not result in the actions of the COHB in the past being unlawful, i.e. a contravention of s 23.
Section 23 creates a criminal offence. The offence is not committed, however, if the person acts with the authority of the Minister. It is a question of the construction of s 23 whether the “authority” referred to means an authority validly granted or whether it is to be construed as referring to an authority in fact granted by the Minister (which has not, at the time of the conduct concerned, been set aside), irrespective of whether the decision to grant that authority is otherwise invalid or liable to be set aside on judicial review.[32] There is no reason to suppose that s 23 was intended to penalise a person who properly sought the authority of the Minister and was granted such authority in fact, and who acted in good faith in reliance upon that authority, because the authority was later held invalid in an administrative law sense. The “authority in fact” construction is plainly to be preferred. This construction is consistent both with the presumption against the expansive reading of penalty provisions[33] and, more generally, with the presumption of mens rea as an essential element of a criminal offence.[34] The existence of a purported (even if later shown to be invalid) authorisation from the Minister is a defence to a charge of an offence against s 23.
[32] See by analogy Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21, (1979) 24 ALR 307 at 314; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 92 ALJR 481 at [39]-[52].
[33] R v Adams [1935] HCA 62, (1935) 53 CLR 563 at 567-568; Beckwith v The Queen [1976] HCA 55, (1976) 135 CLR 569 at 576; R v Lavender [2005] HCA 37 at [88]-[94], (2005) 222 CLR 67 at 95-97.
[34] He Kaw Teh v The Queen [1985] HCA 43, (1985) 157 CLR 523 at 528-529.
It follows that an order quashing the authorisation would not have any effect on the legal interests of the COHB because even if the authorisation was set aside, the legality of the COBH’s conduct in the past would not be affected. Moreover, the corollary is that, even if the authorisation were set aside, this would not be of utility to the plaintiff because it could not affect the lawfulness of the works that have already occurred.
Order 3 seeks an order that “respectful and inclusive” consultation be re‑commenced in relation to the Kingston Park Coastal Park Project, in recognition of the plaintiff and her family clan’s interest in and custodial responsibility for this matter.
It is unclear to whom the order sought is directed: whether it is sought to be made against the Minister or the COHB.
If the order is sought against the Minister, there is no utility to the Court making such order. There is no freestanding statutory duty imposed on the Minister to consult. Rather, consultation with prescribed persons or organisations pursuant to s 13 is a condition precedent to the exercise by the Minister of certain statutory powers, including the giving of an authorisation pursuant to s 23. As there is no current application before the Minister relating to any proposed future work, the current Minister is not subject to any statutory duty to consult pursuant to s 13, and a mandatory order requiring him to do so would not be made.
If the order is sought against the COHB, the relief sought is misconceived. The subject matter of the application for judicial review is the decision of the Minister to give an authorisation pursuant to s 23. In these circumstances, the Court has no power to make an order requiring the COHB to engage in consultation as distinct from the Minister’s decision. The COHB is not subject to any legal duty to consult with the plaintiff, at least in relation to the subject matter of these proceedings.
Length of the delay
The proceedings were commenced 23 days outside the six-month limitation period. I accept that the length of the delay is not great.
Explanation for the delay
The plaintiff was aware of the Minister’s decision the subject of the application for judicial review by 10 October 2017. That was 21 days after the Minister’s decision. Importantly, it was before the works commenced in late October 2017. Of course, the plaintiff’s evidence is that she was unaware at that time of the existence of judicial review. She only learned of the opportunity of pursuing judicial review in late February 2018. She became aware of the remedy of judicial review some weeks before the expiry of the six-month limitation period. Yet the application for judicial review was not instituted until 10 April 2018. I accept that, at the time, the plaintiff was burdened with family responsibilities and suffering from ill-health. Nonetheless, her evidence is that she was actively involved in other legal proceedings and the discharge of other duties concerning her cultural role as the Clan-to-Country custodian of the Tjirbruki Dreaming Track and Tjirbruki Springs site.
Given the plaintiff’s personal circumstances, I am not prepared to find that her failure to bring the proceedings within time was due to a lack of diligence or care on her part. Accordingly, I find that her explanation for the delay is satisfactory.
Prejudice to the defendants
The Minister does not submit that that he has suffered any relevant prejudice from the delay in bringing the proceedings, other than the risk of exposure to the incurring of costs which may not be recovered if the plaintiff’s application is dismissed.
The COHB contends that if the application proceeds and the Court made orders quashing the Minister’s decision, it would be exposed to the risk of reputational damage for having undertaken work in breach of s 23. It further submits that there is a risk that the plaintiff would seek an order, if successful, that it remediate the works which have been completed. That would expose it to a substantial cost, estimated to be in excess of $2.48 million. Further, the COHB contends that, if the application were to proceed, it would be exposed to the same risk of incurring costs that it may not recover from the plaintiff in the event that the application was dismissed.
Should an extension of time be granted?
While the delay in bringing the application for judicial review was not great and a satisfactory explanation for the delay has been given by the plaintiff, I am satisfied that the application for judicial review does not enjoy a reasonable prospect of success. Further, I am satisfied that there would be no utility in the Court permitting the action to proceed. In the circumstances, I would refuse the application for an extension of time.
Conclusion
I would refuse the application for an extension of time.