Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd - [2007] WASCA 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MINISTER FOR RESOURCES; EX PARTE CAZALY IRON PTY LTD [2007] WASCA 175

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 19 & 20 MARCH 2007

DELIVERED : 28 AUGUST 2007

FILE NO/S: CIV 1808 of 2006

MATTER :Application for a Writ of Certiorari against the MINISTER FOR RESOURCES

EX PARTE
CAZALY IRON PTY LTD (ACN 101 049 334)
Applicant
AND
MINISTER FOR RESOURCES
First Respondent
HANCOCK PROSPECTING PTY LTD (ACN 008 676 417)
WRIGHT PROSPECTING PTY LTD (ACN 008 677 021)
HAMERSLEY RESOURCES LTD (ACN 004 887 656)
Second Respondents

Catchwords:

Prerogative writs - Application for writ of certiorari and declaratory relief - Minister exercised power under s 111A(1)(c) of the Mining Act 1978 (WA) and terminated applicant's application for an exploration licence - Whether the Minister took into account irrelevant matters - Minister's discretionary power in relation to the grant of an exploration licence - Construction of s 111A(1)(c) - Whether State's Iron Ore Policy is inconsistent with the Mining Act or an irrelevant consideration - Relevant matters which may be taken into account in exercising the power under s 111A(1)(c) - Whether the Minister failed independently to exercise his discretion by having regard to State's Iron Ore Policy - Whether the decision to terminate the applicant's application was based on reasonable grounds in the public interest - Wednesbury unreasonableness - Whether the Minister failed to accord the applicant procedural fairness

Legislation:

Acts Amendment (Mining) Act 1981 (WA)
Acts Amendment (Mining) Act 1982 (WA)
Interpretation Act 1984 (WA), s 3(1), s 19
Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA)
Mining Act 1904 (WA) (repealed)
Mining Act 1978 (WA), s 9(1), s 42(3), s 48, s 57, s 59, s 61, s 62, s 63, s 65, s 66, s 69A, s 69B, s 69C, s 69D, s 69E, s 70A, s 70B, s 70C, s 70D, s 70I, s 70IA, s 70J, s 70L, s 75, s 78, s 85, s 98, s 99, s 100, s 101, s 102, s 102A, s 103, s 105A, s 111A, s 155
Mining Act Amendment Act 1993 (WA)
Mining Amendment Act 1985 (WA)
Mining Amendment Act 1987 (WA)
Mining Amendment Act 1994 (WA)
Mining Amendment Act 2004 (WA)
Mining Regulations 1981 (WA), reg 22A, reg 23AB
Mining (Validation and Amendment) Act 1986 (WA)

Result:

Order nisi discharged
Declaratory relief refused

Category: A

Representation:

Counsel:

Applicant:     Mr M J McCusker QC & Mr R J Price
First Respondent           :     Mr R M Mitchell & Ms K H Glancy
Second Respondents     :     Mr K J Martin QC & Mr P C S Van Hattem

Solicitors:

Applicant:     DLA Phillips Fox
First Respondent           :     State Solicitor for Western Australia
Second Respondents     :     Allens Arthur Robinson

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

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney‑General (NSW) v Quin (1990) 170 CLR 1
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
British Oxygen Co v Board of Trade [1971] AC 610
Buck v Bavone (1976) 135 CLR 110
Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Concept Nominees Pty Ltd v The Minister for Mines, unreported; SCt of WA; Library No 930678; 9 December 1993
Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Elias v Commissioner of Taxation (2002) 123 FCR 499
George v Rockett (1990) 170 CLR 104
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88
Hubbard Association of Scientologists International v Attorney-General (Vic) [1976] VR 119
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kioa v West (1985) 159 CLR 550
Liversidge v Anderson [1942] AC 206
McDowell v Baker (1979) 144 CLR 413
McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549
McLachlan v Australian Securities and Investments Commission (1999) 85 FCR 286
McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561
Nova Resources NL v French (1995) 12 WAR 50
O'Sullivan v Farrer (1989) 168 CLR 210
Puhlhofer v Hillingdon London Borough Council [1986] AC 484
R v Broadcasting Complaints Commission; Ex parte Owen [1985] QB 1153
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
R v Kelly [2000] 1 QB 198
R v Murphy; Ex parte Clift [1980] Qd R 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants 134/2002 (2003) 211 CLR 441
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1991) 7 WAR 375
Re Minister for Mines; Ex parte Haoma North West NL, unreported; FCt SCt of WA, Library No 920625; 24 November 1992
Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408
Re Plutonic Operations Ltd; Ex parte Roberts [1999] WASCA 133
Re Queensland Electricity Commission; Ex parte Electrical Trades Union (1987) 61 ALJR 393
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980734; 21 December 1998
Re Warden French; Ex parte Serpentine‑Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315
Re Warden Heaney; Ex parte Serpentine‑Jarrahdale Ratepayers' and Residents' Association (Inc) (1997) 18 WAR 320
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515
Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Visnic v Australian Securities and Investments Commission (2007) 81 ALJR 1175
Water Conservation Commission v Browning (1947) 74 CLR 492

WHEELER JA

PULLIN JA

BUSS JA

WHEELER JA: I agree with Buss JA.
PULLIN JA: I agree with the reasons of Buss JA. I add the following observations in relation to grounds 10(b) and 12(b) and in relation to some aspects of the construction of s 111A.
Buss JA has set out the facts in detail but I will repeat some of them for the purpose of making some observations concerning the legal consequences which may have followed if the extension application had reached the Mining Registrar at Marble Bar within time.
RRJV held an exploration licence (which Buss JA has called "the Expired Licence") over the subject land. It was due to expire on 26 August 2005. RRJV wished to extend the term of the Expired Licence pursuant to s 61 of the Mining Act 1978. It paid the rental relating to the contemplated extended term a month before the Expired Licence was due to expire. A week before, on 19 August 2005, RRJV sent an application for an extension of the Expired Licence to the Mining Registrar at Marble Bar. The application arrived at the courier's agent's place of business at Marble Bar on Friday 26 August 2005 but the Mining Registrar did not collect it until 31 August 2005.
If the Expired Licence had reached the Mining Registrar in the time reasonably anticipated, the exploration licence would have continued in force until the application for extension was determined. This was because of s 61(3) of the Mining Act 1978 which at that time read:
"(3)A person making an application for the extension of the term of an exploration licence under subsection (2) shall lodge that application at the office of the mining registrar and where the term of the exploration licence would but for this subsection expire, that licence shall continue in force in respect to the land the subject of the application until the application for the extension of the term is determined."
In consequence, if the extension application had been received by the Mining Registrar by 26 August 2005, the land would not have been open for mining. See s 18 of the Mining Act. In those circumstances, the applicant for relief in these proceedings would not have been able to apply for an exploration licence, there would then have been no need for an application by the second respondent to the Minister asking the Minister to exercise his power under s 111A to terminate the applicant's application

for exploration licence (E46/678) referred to in the next paragraph, and it would not have been necessary for this Court to consider the matter.

On Monday 29 August 2005 the applicant applied for a new exploration licence (E46/678). On 3 September 2005 RRJV made application for mining leases over the land. (RRJV was precluded from making a fresh application for an exploration licence because of s 69). On 21 September 2005 RRJV requested the Minister to terminate the applicant's application for E46/678 ("Cazaly's Application") pursuant to s 111A of the Act. Submissions were made by the parties. On 21 April 2006 the Minister terminated Cazaly's Application.
The Minister gave three reasons for his decision and said that each of the three reasons was sufficient on its own for him to be satisfied that the public interest was best served by terminating the application by the applicant. The applicant acknowledges that if any one of the three grounds is good, then the application for declarations should be dismissed and the order nisi discharged.
This is a case which at first blush might appear to raise fairly straightforward issues. Doubtless because of the potential value of the iron in the ground the subject of the competing claims, great energy has been put into the case. The Court was favoured with many volumes of affidavits and cases and lengthy written submissions.
The reasons given by the Minister for his decision are set out in full in Buss JA's reasons. My reasons are concerned only with the second and third reasons under the headings "Promoting Investment in Western Australia" and "Fairness".
The question is whether these reasons reveal that there were reasonable grounds in the public interest for the Minister to be satisfied that the application by Cazaly should not be granted. This question arises because the Minister acted under s 111A(1)(c)(ii) of the Mining Act1978 when he terminated Cazaly's application for a mining tenement. Section 111A is set out in Buss JA's reasons.
The power conferred on the Minister by s 111A may only be exercised if the Minister's reasons are "in respect of" the whole or part of the land to which the application relates. The words "in respect of" have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer. See McDowell v Baker (1979) 144 CLR 413 at 419. There can be no doubt that there is a connection between the land to which Cazaly's application relates and the Minister's decision.

Section 111A of the Mining Act - reasonable grounds

It is next necessary to consider and construe the phrase, "the Minister is satisfied on reasonable grounds in the public interest", which appears in s 111A. The meaning of the words "public interest" will be considered separately below, but first the question is about what is meant by the section when it says that the Minister must be satisfied "on reasonable grounds".
The expression "on reasonable grounds" imports an objective test. This is explained in George v Rockett (1990) 170 CLR 104, a case in which the High Court considered a provision in the Queensland Criminal Code which provided "if it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house … (a) Anything in respect to which any offence which is such that the offender may be arrested with or without warrant has been, or is suspected, on reasonable grounds, to have committed …" then the Justice may issue a warrant directing a police officer to search the house. In the joint judgment, the Court said at 112:
"When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person."
The consequence is that when the Minister's decision comes under review, as it does in these proceedings, it is not enough that the Minister should think he had reasonable grounds in the public interest that the application should not be granted: McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549 at [10] per Gleeson CJ and Kirby J; and see the now orthodox view in the dissenting speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 at 231 and 247.
When examining the decision and determining whether there were reasonable grounds for the Minister to be satisfied in the public interest that the application should not be granted, it is not enough to conclude that the decision is not absurd. To say the decision is not absurd is not to say that it is necessarily reasonable. See McKinnon's case [60] and [62] per Hayne J and [129] per Callinan and Heydon JJ.
The Minister was required to take into account all relevant considerations: Gleeson CJ and Kirby J [16] to [17] and Hayne J [63].
Once all relevant considerations have been taken into account (and irrelevant considerations excluded) and the legal approach correctly understood, there then remains a value or normative judgment to be made in relation to which there may be differences of opinion: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 167 per Gleeson CJ. It is not for this Court to substitute its value or normative judgment for that of the Minister.

Section 111A - public interest

The expression "in the public interest", when used as the criterion for the exercise of a statutory discretion, usually imports a discretionary value judgment confined only by the subject matter and the scope and purpose of the legislation. The ascertainment of the subject matter and the scope and purpose of the legislation will enable a court to determine whether reasons which are given are definitely extraneous to any object a legislature could have had in view. See O'Sullivan v Farrer (1989) 168 CLR 210 at 216, and Water Conservation Commission v Browning (1947) 74 CLR 492 at 505: McKinnon's case per Hayne J at [55]: Visnic v Australian Securities and Investments Commission (2007) 81 ALJR 1175 at [36] per Kirby J. Although Jacobs J said in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 487, that the public interest is an "indivisible concept", there may be competing aspects to the public interest. See Re Queensland Electricity Commission; Ex parte Electrical Trades Union (1987) 61 ALJR 393 at 400 and the examples given by Jacobs J in Sinclair v Mining Warden (supra). Jacobs J in Sinclair was considering the meaning of the words "public interest" in a regulation which required a Warden to recommend rejection of an application if, in his opinion, "the public interest or right will be prejudicially affected" by its grant. Jacobs J, at 487, referred to the width of the expression "public interest", and noted that the public interest in that case could tell against the grant of the mining lease even though particular interests of an individual were the only interests primarily affected.

The subject matter and scope and purpose of the Mining Act 1978

What then is the "subject matter and scope and purpose" of the Mining Act 1978 (WA)? The subject matter and scope and purpose of an Act of Parliament can be identified at various levels of generality. Thus, at an unhelpfully general level, this legislation, as its long title suggests, is legislation "relating to mining". At a more particular level the scope and purpose of the legislation is concerned with the regulation of mining and the identification of land which is to be open for mining, concerned with the defining circumstances in which tenement holders may hold or lose mining tenements and concerned with the provision of means of resolving disputes concerning mining tenements. The legislation also has the purpose of defining circumstances in which mining tenements and applications for tenements may be processed, granted, terminated or forfeited.
Rowland J in Nova Resources NL v French (1995) 12 WAR 50 said that the "primary" object and aim of the legislation is "to ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration". It is true that this is one of the primary objects of the Act. However, the adjective "primary" used by Rowland J acknowledges that there are other objects and aims. Another object reflected in the Act is, in one sense, contrary to the primary object. This object is found in provisions in the Act which excuse tenement holders in certain circumstances from making land with known potential for mining, or which is worthy of exploration, available for mining or exploration. Some of these provisions have been in the Mining Act 1975 or its predecessor for a long time, and other provisions have been added more recently, perhaps to reflect the fact that the mining industry in Western Australia has increasingly matured and now involves the investment of billions of dollars.
Thus, for example, Div 7 (which has existed for a long time in one form or another) allows for the grant of a certificate of exemption to a tenement holder. This will exempt the tenement from the condition that money be spent on mining, or in connection with mining in relation to it, for certain periods of time. The exemption may be granted for a variety of reasons, including that the tenement contains a mineral deposit which is uneconomic but which may be expected to become economic at some time in the future; or that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation; or that time is required to evaluate work done on the mining tenement to plan future exploration or mining or to raise capital therefore. See s 102(2). A special provision - s 102A - was inserted into the Act in 1982, authorising the Minister to grant exemption in relation to the holder of an exploration licence who has been authorised by the Minister under s 111 to explore for iron on the land. In 1993, Div 2A was introduced into the Act permitting the Minister to grant the holder of a prospecting licence, exploration licence or mining lease a retention licence, if there is an identified mineral resource in the area in respect of which the licence was sought and the mining of that identified mineral resource is impracticable. Impracticability may be shown by the fact that the resource is uneconomic or subject to marketing problems if the resource may reasonably be expected to become economic or marketable in the future; or because the resource is required to sustain future operations of an existing or proposed mining operation; or if there are existing political, environmental or other difficulties in obtaining requisite approvals. See s 70C. These provisions make it clear that one object or purpose of the Act is to identify circumstances in which a tenement holder will be allowed to hold a tenement without mining or giving it up to others who may wish to actively mine the land.

There is a further purpose reflected in the Act. That is, that a tenement holder who has defaulted in compliance with the Act in some minor respect or because of some circumstance beyond the control of a tenement holder, should not risk the loss of the tenement. Thus s 98(7) provides that an exploration licence or mining lease should not be forfeited if there has been non‑compliance with expenditure requirements because of a strike. Section 96(2) provides that no order for forfeiture of a mining tenement shall be made unless the warden is satisfied that non‑compliance with the Act is "material" and that the "matter" is of "sufficient gravity" to justify forfeiture of the tenement. No recommendation for forfeiture of an exploration licence or mining lease may be made by a warden unless the non‑compliance with the Act is of "sufficient gravity" to justify forfeiture. See s 98(5).
Title to a mining tenement is not as secure as title to real property. This relative lack of security sits uneasily with the fact that very large amounts of capital may be expended on mining infrastructure. Miners desire as much security of title as possible if they are to make such investment. The State also has an interest in ensuring reasonable security of title so that investment will be encouraged. If this happens, the chance that greater royalties may be earned for the benefit of the State is enhanced. Parliament has demonstrated that it intends that the relative insecurity of title should be balanced out by provisions in the Act which reduce the risk that a tenement may be lost due to error or inadvertence.
In my opinion, these provisions which show that one of the purposes of the legislation is to protect tenement holders from loss of title due to minor non‑compliance with the Act or error or inadvertence, means that, by analogy, it was open to the Minister under s 111A to conclude that

reasonable grounds exist in the public interest to terminate an application, if to do so is to benefit or protect a tenement holder who has, by some slip or minor accident, failed to apply to extend the term of an exploration licence.

Did the Minister have reasonable grounds for concluding that in the public interest the application should be terminated

The circumstances of this case, when viewed objectively, provided reasonable grounds for the Minister to conclude in the public interest that the Cazaly Application should be terminated. This was so even though only private interests were immediately affected by his decision. The Minister said that the decision would promote investment. Clearly it does this because it gives out a message to the mining community that minor oversights or inadvertence will not lead to unexpected loss of mining tenements by bona fide miners. As the Minister said, this promotes investment which promotes the public interest.
Cazaly contended in ground 10(b) that the circumstances in which RRJV failed to renew the Expired Licence was irrelevant, and contended in ground 12(b) that "promoting investment" could not constitute reasonable grounds in the public interest. These contentions must be rejected. For the reasons given above, the Minister clearly had in mind the factors relevant to his decision, namely the circumstances in which RRJV failed to renew the Expired Licence and the fact that RRJV had signalled its genuine intention to extend the Expired Licence, the need to avoid circumstances where a minor oversight might have disproportionate consequences, the need to be even‑handed or fair to the competing parties and the interest in promoting investment in the resources industry in Western Australia. The Minister did not take into account any irrelevant considerations and he did not misdirect himself on the law.
As a result, for these reasons, and those stated by Buss JA, the order nisi should be discharged and the claim for declaratory relief dismissed.
BUSS JA: By a notice of originating motion dated 4 August 2006, the applicant ("Cazaly") made application for, relevantly, an order that the first respondent ("the Minister") show cause before this Court as to why a writ of certiorari should not issue against him to remove into this Court, for the purpose of being quashed, his decision ("the Decision") made on 21 April 2006 to terminate application for exploration licence 46/678 ("Cazaly's Application") pursuant to s 111A(1)(c)(ii) of the Mining Act 1978 (WA) ("the Mining Act"). The notice of originating motion also sought declaratory and other relief.

On 11 August 2006, Templeman J made an order nisi for a writ of certiorari. His Honour also made various other orders including an order that the application for declaratory relief be heard by this Court on the return of the order nisi.
Subsequently, Cazaly was granted leave to amend and re‑amend the notice of originating motion.

The relevant background facts and circumstances

The second respondents are the members of a joint venture known as the Rhodes Ridge Joint Venture ("RRJV"). The joint venturers have rights and obligations under an agreement with the State of Western Australia, as amended and supplemented from time to time ("the Rhodes Ridge State Agreement"), which was ratified by the Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA). The third named second respondent, Hamersley Resources Ltd, is a subsidiary of Rio Tinto Limited, which is the manager of RRJV.
Until August 2005, the assets of RRJV included E46/209 ("the Expired Licence"), an exploration licence granted under the Mining Act.
The land the subject of the Expired Licence was previously the subject of E46/8, also an exploration licence granted under the Mining Act and held by RRJV. Before the grant of E46/8, the land in question was the subject of rights of occupancy held by RRJV under the Mining Act 1904 (WA) (repealed) in respect of Temporary Reserve 5003H.
The Rhodes Ridge State Agreement has never applied to the land the subject of the Expired Licence. However, by a letter dated 13 November 1979 from the then Premier of Western Australia to Texasgulf Australia Ltd (the then holder of Hamersley Resources Ltd's interests in RRJV), the then Premier confirmed the State's intention, in due course, to negotiate an amendment to the Rhodes Ridge State Agreement so that it applied to Temporary Reserve 5003H.
Before August 2005, RRJV had invested $587,063 in exploration work on the land the subject of the Expired Licence. This work revealed an inferred resource of approximately 120M tonnes of high phosphorus brockman iron ore. The resource is known as the "Shovelanna resource". RRJV did not, however, conduct any drilling on the Shovelanna resource during the term of the Expired Licence. The existence of the Shovelanna resource was identified long before the Expired Licence was granted.
The Expired Licence was granted to RRJV on 27 August 1989. The Minister authorised RRJV to explore for iron on the land the subject of the Expired Licence. See s 111 of the Mining Act. Between 27 August 1989 and 26 August 2005, RRJV applied for and was granted a partial exemption on ten occasions from the annual prescribed expenditure conditions relating to the Expired Licence (s 62), exemption on two occasions from the compulsory surrender requirements relating to the licence (s 65), and on 11 occasions an extension of the term of the licence for one year (s 61(2)).
The Expired Licence was due to expire at midnight on 26 August 2005. By s 61 of the Mining Act, RRJV was entitled to apply for its renewal. On 28 July 2005, in anticipation of making a renewal application, RRJV prepaid the rental for the contemplated renewed term to the Department of Industry and Resources ("the Department"), which is responsible for assisting the Minister in the administration of the Mining Act. On 19 August 2005, RRJV sent an application for renewal ("the Extension Application") to the Mining Registrar at Marble Bar by "overnight first class" delivery with a reputable courier. The Extension Application was received by the courier's agent at Marble Bar on 26 August 2005, but was not delivered to the Mining Registrar's office before close of business on that date, and, in consequence, the Expired Licence expired automatically at midnight. The land the subject of the Expired Licence then became vacant Crown land. If the Extension Application had been delivered to the Mining Registrar's office before close of business on 26 August 2005, the Expired Licence would have continued in force in respect of the relevant land until the Minister determined the Extension Application. See s 61(3a) of the Mining Act.
On 29 August 2005, Cazaly lodged Cazaly's Application in accordance with s 58 of the Mining Act. The land the subject of Cazaly's Application included the Shovelanna resource.
The Mining Registrar at Marble Bar was not informed until 31 August 2005 that a package addressed to her (which contained the Extension Application) was awaiting collection.
By letter dated 2 September 2005, RRJV wrote to the Minister "foreshadowing" a request that the Minister exercise his discretion under s 111A(1)(c)(ii) of the Mining Act to terminate Cazaly's Application.
On 5 September 2005, RRJV applied for mining leases M46/437 to 46/440 ("the Mining Lease Applications") under the Mining Act. The land the subject of those applications included the Shovelanna resource. Cazaly has lodged objections to the grant of the Mining Lease Applications.
By letter dated 21 September 2005, RRJV requested the Minister to terminate Cazaly's Application pursuant to s 111A(1) of the Mining Act.
On 7 October 2005, FMG Pilbara Pty Ltd made application for an exploration licence, E46/682, under the Mining Act. The land the subject of that application includes the Shovelanna resource.
On 10 October 2005, BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Itochu Iron Pty Ltd made application for an exploration licence, E46/680, under the Mining Act. The land the subject of that application includes the Shovelanna resource.

The holders of the office of Minister

At all material times before 3 February 2006, the Honourable Alan Carpenter MLA was the Minister responsible for the administration of the Mining Act. At all material times after 3 February 2006, the Honourable John Bowler MLA was the responsible Minister.
Mr Carpenter was the responsible Minister in consequence of his being, relevantly, the Minister for State Development. Mr Bowler became the responsible Minister in consequence of his being appointed, relevantly, the Minister for Resources and Assisting the Minister for State Development. He was not the Minister assisting the Minister for State Development before 3 February 2006. The Office of Minister for Resources and Assisting the Minister for State Development was created when Mr Bowler was appointed on that date.
Although at all material times after 3 February 2006, Mr Bowler was the Minister responsible for the administration of the Mining Act, he was not at any material time the Minister with responsibility for the Rhodes Ridge State Agreement or any other iron ore State agreements. At all material times, Mr Carpenter, in his capacity as Minister for State Development, had responsibility for those agreements. Each Minister was, however, assisted by the Department in the administration of those Acts or State agreements for which he was responsible. See Government Gazette, 21 February 2006, No 37, at pages 853 ‑ 854, 864.

The Decision

On 21 April 2006, the Minister made the Decision; that is, he decided that Cazaly's Application should be terminated pursuant to s 111A(1)(c)(ii) of the Mining Act. In a letter sent to Cazaly's solicitors on 21 April 2006, the Minister said that he had made the Decision "following [his] careful consideration" of the submissions and counter submissions of each of the parties and of advice provided by the State Solicitor's Office.
In a "Media Statement" dated 27 April 2006, the Minister gave reasons for the Decision. The statement provides, relevantly:
" …
Each of the three reasons I will elaborate upon was sufficient on its own for me to be satisfied that the public interest was best served by terminating [Cazaly's] application.
The State's Iron Ore Policy
Amongst the materials provided to me by the Department of Industry and Resources (DoIR) was the following advice:
' … Parliament intended that Iron is a mineral for which special treatment be accorded under the Act…Parliament wanted the Minister to be in a position to exercise a much broader discretion in relation to iron tenements…this would have the effect of encouraging exploration for iron ore. …and the life of these mining operations can last for decades, and in fact may need to last for decades to make the capital investment economically feasible…there is logical support for a special provision that allows an exploration licence for iron to be held on less onerous terms than licences for other minerals…'
The policy recognises the need for long term tenure to underpin long-term contracts. Iron ore mining in the volumes developed in the Pilbara can only be carried out with extensive infrastructure such as rail and ports. In order to invest in such extensive capital infrastructure, companies need the security of long-term contracts supported by secure tenement holdings.
Implicit in this long-standing policy is the certainty that some tenements containing iron ore deposits will not be mined for a lengthy period of time from the time of discovery.
This policy has been maintained by successive governments for many decades and it is my view that it has been a significant reason for the Pilbara region being the world's most prolific exporter of iron ore.
Any company mining iron ore in Western Australia needs to have access to long-term reserves in order to secure their future viability. For example, a company that has access to known reserves can more quickly respond to increases in demand.
Whilst this policy is under review, I am of the view that to arbitrarily deviate from its objectives and present method of implementation would be detrimental to the state's sovereign risk profile and therefore contrary to the public interest.
On reviewing the material I concluded that the objectives of the State's iron ore policy and therefore the public interest were best achieved by terminating [Cazaly's] application.
Promoting Investment in Western Australia
I consider that the public interest is best served by policies and decisions that promote investment.
Investment in the resources industry is promoted when explorers can be confident that their ownership of resources they have discovered is not jeopardised, with consequences disproportionate to minor oversights or actions. This is particularly true where a tenement holder has clearly signalled their intentions to government by, for example, paying rent in advance.
I concluded that goals of promoting investment in Western Australia and therefore the public interest were best served by terminating [Cazaly's] application.
Fairness
The effective administration of Ministerial discretion under the Western Australia Mining Act requires that the outcomes be consistent.
In considering this matter I was particularly focused on ensuring the answer I came to would be the same were the circumstances of the parties to be reversed. I have no doubt that this would be the case.
In other words, if the roles of [RRJV] and [Cazaly] were to be reversed, I would have found in favour of [Cazaly].
Accordingly I am satisfied that the public interest was best served by terminating [Cazaly's] application."
On 27 April 2006, after the publication of the "Media Statement" of that date, the Minister held a media conference in which he answered questions from the media in relation to the Decision and, to some extent, expounded upon the reasons in the "Media Statement".

The declaratory relief sought by Cazaly

The declaratory relief sought by Cazaly is as follows:
"3.A declaration that:
(a)the Minister's jurisdiction pursuant to section 111A(1)(c)(ii) of the Act is exercisable only where the Minister is satisfied on reasonable grounds in the public interest that an application should not be granted for reasons pertaining to that particular application;
(b)in exercising his jurisdiction pursuant to section 111A(1)(c)(ii) of the Act in respect of [Cazaly's Application] the Minister is not entitled to have regard to:
(i)the circumstances in which [the Expired Licence] expired; or
(ii)[the Mining Lease Applications] including whether [the Mining Lease Applications] should be granted;
(c)the policy (Policy) implemented by the Department … of giving special treatment to applications made under the Act (including extension of term applications and exemption applications) in respect of tenements the holders of which are authorised to prospect, explore, or work and mine, for iron pursuant to section 111 of the Act so as:
(i)to allow tenements authorised for iron ore to be held on 'less onerous terms' and as 'long‑term tenure' as compared to tenements that are not authorised for iron ore because 'tenements containing iron ore deposits will not be mined for a lengthy period from the time of discovery'; and/or
(ii)to allow exploration licences the holders of which are authorised to explore for iron to be 'utilised as holding titles',
is contrary to the Act;
(d)the fact that the land the subject of such an exploration licence contains an inferred iron ore resource does not of itself constitute exceptional circumstances for the grant of an extension of time under section 61(2)(b) of the Act (prior to its amendment in February 2006);
(e)the Policy is not a matter that the Minister can lawfully take into account in the exercise of his jurisdiction pursuant to section 111A(1)(c)(ii) of the Act;
(f)[the Extension Application] for an extension of term of [the Expired Licence] lodged 31 August 2005 did not disclose exceptional circumstances which could have justified the grant of an extension of term."

The grounds for claiming certiorari and declaratory relief

The grounds on which Cazaly claims certiorari and declaratory relief, are these:
"10.The Minister erred in law in taking into account the following irrelevant matters in making the Decision:
(a)the Policy;
(b)the circumstances in which [RRJV] failed to renew [the Expired Licence];
(c)the erroneous conclusion that there were exceptional circumstances justifying the grant of an extension of term of [the Expired Licence] if [the Extension Application] for an extension of time had been lodged in time because the land the subject of the tenement contained an 'inferred iron ore resource';
(d)the erroneous conclusion that if [Cazaly's Application] was terminated the RRJV would 'regain' the subject ground by way of the grant of [the Mining Lease Applications];
(e)that, if the circumstances of the parties had been reversed, the Minister would have exercised his discretion to terminate an application by [RRJV];
(f)that it would be unfair to [RRJV] not to terminate [Cazaly's Application] because [RRJV] had 'spent over half a million on the tenement' and 'indicated in every way possible that they intended to renew the tenement'; and
(g)that 'Cazaly have spent nothing' on the tenement (which was in any event an unreasonable finding without any basis in evidence).
11.The Minister erred in law in the exercise of his jurisdiction under section 111A(1)(c)(ii) of the Act because, in adopting and applying the Policy, and concluding that a departure from the Policy would be arbitrary even though the Policy was under review, he failed to independently exercise his discretion following a proper (or any) consideration of the merits of [Cazaly's Application].
12.The Minister erred in law by making an unreasonable decision and/or exceeded his jurisdiction under section 111A(1)(c)(ii) of the Act in that the Decision was not based upon reasonable grounds in the public interest because:
(a)the Policy and its objectives could not constitute reasonable grounds in the public interest because the Policy is:
(i)inconsistent with the provisions of the Act and/or contrary to the purpose of the Act;
(ii)anti‑competitive and contrary to the public interest;
(iii)not a policy about, or relating to, section 111A of the Act and should not have been taken into account.
(b)The Minister's stated objectives of protecting 'long term tenure' and 'secure tenement holdings', of avoiding detriment to the State's 'sovereign risk profile' and of avoiding jeopardy of 'ownership of resources' and thereby promoting confidence in 'investment in the resources industry['] could not constitute reasonable grounds in the public interest because:
(i)a tenement holder is only entitled to security of tenure if the tenement holder has complied with the Act;
(ii)any significance of the said objectives was based on the erroneous conclusions referred to at paragraph 10(c) and 10(d) above;
(c)the reasons of 'fairness' given by the Minister for the Decision could not constitute reasonable grounds in the public interest having regard to the irrelevance at law of the matters in paragraphs 10(e), 10(f) and 10(g) above;
(d)he failed to give any or proper consideration or weight to the following relevant matters:
(i)the importance of transparency and certainty in relation to the administration of tenure under the Act;
(ii)Parliament has not included in the Act a provision allowing the late lodgement of extension of term applications in respect of mining tenements, although it has included express powers to extend time in respect of other matters;
(iii)a decision arbitrarily to terminate [Cazaly's Application] would undermine public and international investor confidence in the impartial administration and operation of the Act;
(iv)the general policy underlying the Act is that a tenement holder is granted exclusive rights for a finite term within which it must explore for and develop a resource failing which those rights will be lost;
(v)[Cazaly's Application] complied with the Act, was in respect of land open for mining under section 18 of the Act, and was first in time;
(vi)[Cazaly] had demonstrated that it had the capability and intention to develop [the land the subject of Cazaly's Application] in the near future, and it was therefore in the public interest, and consistent with the apparent and accepted purpose of the Act, that the application be granted;
(vii)[RRJV] had made negligible effort to explore or exploit the iron ore resource, and had no intention of doing so within the foreseeable future.
13.The Minister failed to accord [Cazaly] procedural fairness in making the Decision in that:
(a)The Minister failed to provide [Cazaly] with documents and information that the Minister had before him or considered when he made the Decision including:
(i)a document entitled or described as a 'Statement of Principles' which is referred to in paragraph 21 of the letter from [RRJV] to the Hon. Alan Carpenter, Minister for Development, dated 21 September 2005 (Rio's First Submission) or an adequate summary of the content thereof;
(ii)documents relating to or evidencing the 'ongoing discussions with [the Minister] over the last 6 months concerning the various State Agreements to which members of the RTIO group of companies are party' referred to in paragraph 21 of Rio's First Submission, including any memos, file notes or reports relating to the discussions or an adequate summary of the content and status of the discussions;
(iii)the letter from the Hon. Alan Carpenter, Minister for Development, to [RRJV] dated on or about 16 December 2005 which was a response to a letter from [RRJV] which enclosed the 'Statement of Principles' referred to in paragraph 21 of the First Rio Submission or an adequate summary of the content thereof;
[there is no par 13(a)(iv)]
(v)a copy of the minute prepared for the Minister by the Department dated 30 March 2006, in relation to [RRJV's] request that the Minister terminate or refuse [Cazaly's Application] pursuant to section 111A(1)(c)(ii) of the Act … including all annexures or an adequate summary of the content thereof;
[there is no par 13(a)(vi)]
(vii)legal advice provided by the State Solicitor's Office to [the Department] dated 1 February 2006 or an adequate summary of the content thereof;
[there is no par 13(a)(viii)]
(ix)the memorandum from Ms Anne Seghezzi to Mr Bob Stevens dated 8 February 2006 which was quoted by the Minister on page 2 of the reasons for the Decision which were published on 27 April 2006 or an adequate summary of the content thereof;
(x)documents relating to the meeting between Mr Leigh Clifford of [RRJV] and the Hon. Alan Carpenter MLA, Minister for State Development which was held on about 8 September 2005 or an adequate summary of the content of the discussions which occurred at the meeting; and
(xi)a copy of the letter from [RRJV] to Mr Roy Burton dated 27 March 2006 or an adequate summary of the content thereof; and
(b)The Minister failed to provide Cazaly with sufficient opportunity to be heard, and to provide Cazaly with sufficient information as to the case it had to meet, in relation to submissions made by [RRJV] in paragraph 21 of Rio's First Submission, in that:
(i)he failed to provide Cazaly, alternatively
(ii)he failed to require [RRJV] to provide Cazaly,
with documents and/or information explaining adequately the references in the said paragraph 21 to:
'The issue of tenements held by RRJV is also the subject of ongoing discussions with you over the last 6 months concerning the various State Agreements to which members of the RTIO group of companies are party and which are reflected in the Statement of Principles that is being finalised for execution';
including documents and/or information to explain adequately the material content of the 'ongoing discussions' and the material content of the Statement of Principles that was being finalised so as to enable Cazaly to know, at all, alternatively, in sufficient detail, the proper purport of the matters being submitted by [RRJV] in the said paragraph 21 and the proper purport of the case it had to meet.
(c)The Minister failed to:
(i)notify Cazaly that the Policy was a significant issue upon which the Decision was likely to turn; and
(ii)provide Cazaly with an adequate explanation of the relevance of the Policy to the Decision."

General summary of the grounds

By way of general summary, Cazaly's grounds allege, in essence:
(a)By s 111A(1)(c)(ii) of the Mining Act, the Minister, in deciding whether he or she is satisfied on reasonable grounds in the public interest that an application for a mining tenement should not be granted, must have regard only to the application itself, and not to matters, facts or circumstances extraneous to that application, such as the private interests of third parties.
(b)The State's iron ore policy ("the Policy") is inconsistent with the Mining Act. By the Act, the Minister was prohibited from having regard to the Policy, and the objectives on which it is based, in deciding to terminate Cazaly's Application.
(c)By the Mining Act, the Minister was prohibited from having regard to:
(i)the circumstances in which the Expired Licence expired following the late arrival of the Extension Application; and
(ii)the consequence that the termination of Cazaly's Application would give first priority to the Mining Lease Applications,
in deciding to terminate Cazaly's Application.
(d)The Minister regarded his discretion under s 111A(1)(c)(ii) as being fettered by the Policy.
(e)There were no reasonable grounds for the Minister to be satisfied in the public interest that Cazaly's Application should not be granted, and, further, the Minister's decision was unreasonable in the Wednesbury sense.
(f)The procedure adopted by the Minister for determining whether or not he should exercise his discretion under s 111A(1)(c)(ii) was unfair, and the Minister failed to accord procedural fairness to Cazaly.
I will consider in turn each of the grounds and the issues which arise in relation to each ground.

Ground 10: the Minister's discretionary power in relation to the grant of an exploration licence

It is useful to examine the nature of the Minister's power at the material time (that is, on or about 21 April 2006) in relation to the grant of an exploration licence before considering the proper construction of s 111A(1)(c) of the Mining Act and the factors which the Minister is entitled or obliged to take into account under s 111A(1)(c) in deciding whether to terminate or refuse an application for an exploration licence.
Section 57(1) of the Mining Act provides:
"Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine."
The Mining Registrar or the Warden must not recommend the grant of an exploration licence under s 57 unless he or she is satisfied that the applicant is able effectively to explore the land in respect of which the application has been made. See s 57(3).
If no notice of objection is lodged within the prescribed time to the granting of an application for an exploration licence, the Mining Registrar is obliged (unless s 59(4)(b) applies, which is not presently relevant) to forward to the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation. See s 59(2). The Mining Registrar must:
(a)recommend the grant of the exploration licence if satisfied that the applicant has complied in all respects with the provisions of the Mining Act; or
(b)recommend the refusal of the exploration licence if not so satisfied.
See s 59(3).
If a notice of objection to the granting of an application for an exploration licence is lodged within the prescribed time (and, in certain other circumstances, which are not presently relevant, after the prescribed time), the Warden must hear the application in open court and may give any person who has lodged such a notice of objection an opportunity to be heard. See s 59(4).
The Warden then forwards to the Minister, for the Minister's consideration, the notes of evidence, any maps or other documents referred to in the notes of evidence, and a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.
Section 59(6) provides:
"On receipt of a report under subsection (2) or (5), the Minister may grant or refuse the exploration licence as the Minister thinks fit, and irrespective of whether -
(a)the report recommends the grant or refusal of the exploration licence; and
(b)the applicant has or has not complied in all respects with the provisions of this Act."
The Minister is obliged to consider the information which the Mining Registrar or the Warden forwards under s 59(2) or s 59(5). The Minister may not exercise the discretionary power to grant or refuse an application until the Mining Registrar's or the Warden's report (including his or her recommendation) is received and taken into account. Section 59(6) is a statutory indication that the weight to be accorded to the report (including the recommendation) of the Mining Registrar or the Warden need not be decisive. See Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 per Brennan CJ, Gaudron and Gummow JJ at 174 ‑ 175. Although the provisions of the Mining Act which are relevant, for present purposes, are not identical to the provisions under consideration in Hot Holdings (1996), the observations of Brennan CJ, Gaudron and Gummow JJ remain in point.
The Mining Act confers on the holder of an exploration licence (and the holder of a mining lease) rights which are significantly more extensive than those conferred on the holders of other tenements. See Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195, where Brinsden J said, at 204:
"It perhaps is not unfair to say the prospecting licence is the junior while the exploration licence and the mining lease are the more senior type. It is, therefore, not unexpected to observe the grant of a mining tenement which involves more land in the case of an exploration licence and a much longer period of time in respect of both tenements is given to the Minister while the other lies in the grant of the warden."
Also see Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1991) 7 WAR 375 per Ipp J at 383.
The Mining Registrar and the Warden, in making recommendations to the Minister concerning applications for exploration licences, do not exercise a discretion or decision‑making power as to "questions of policy and principle governing the exploration of mineral deposits in this State": Tortola per Brinsden J at 204. Those questions are reserved for the consideration of the Minister. See Re Warden French; Ex parte Serpentine‑Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315, where Ipp J (with whom Kennedy J agreed) referred to the judgment of Brinsden J in Tortola and then said, in the context of an application for a mining lease, at 328:
"The Warden, in making recommendations to the Minister concerning mining lease applications, does not exercise a discretion as to 'questions of policy and principle governing the exploration of mineral deposits in this State'. That is a matter within the province of the Minister."
The comments of Ipp J in relation to mining lease applications apply also to exploration licence applications.
In Re Warden French, Ipp J held, at 329, that an objection to the grant of a mining lease may include considerations of policy relevant to matters of public interest. His Honour said:
"In my opinion, there is nothing in the Act which qualifies the right of persons who otherwise have standing to be heard by the Warden in regard to objections on grounds of public interest which they may wish to advance at hearings under s 75(1). Further, as I have indicated, there are sound policy considerations which favour objections on such grounds being investigated at such hearings."
Similarly, Kennedy J said, at 317:
"Where provision is made for persons to object to the granting of licences under other legislation, it is quite common for that legislation to specify the grounds on which persons may object: … The State legislature, however, has chosen not to specify any restrictions in relation to objections to applications for mining tenements under the Mining Act.
Moreover, it appears to me to be not inappropriate, having regard to the Minister's powers under section 111A, to permit a filtering of objections based upon considerations of the public interest through the Warden, rather than simply leaving it to interested parties to make their objections directly to the Minister, as no doubt they could do."
Further, in Re Warden Heaney; Ex parte Serpentine‑Jarrahdale Ratepayers' and Residents' Association (Inc) (1997) 18 WAR 320, Franklyn J (with whom Murray and Owen JJ agreed) held that an objector to the grant of an application for a mining lease was entitled to raise, by way of objection, matters in the public interest.
The observations of Kennedy and Ipp JJ in Re Warden French, and Franklyn J in Re Warden Heaney, to the effect that an objection to the grant of a mining lease may include matters relating to the public interest apply also to objections to the grant of an exploration licence.
In Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980734; 21 December 1998, a decision of the Full Court of the Supreme Court of Western Australia where five judges sat, the applicant argued that the Court should overrule Re Warden French and Re Warden Heaney. Steytler J, as his Honour then was (with whom Kennedy, White and Wheeler JJ agreed) concluded that the Court should not depart from Re Warden French and Re Warden Heaney, and that an objector to an application for the grant of a mining lease was entitled to raise, by way of objection, environmental and other public interest issues.
Section 59(6) of the Mining Act does not expressly state the matters which the Minister is entitled or obliged to take into account in deciding whether to grant or refuse an application for an exploration licence. The factors which the Minister is entitled or obliged to consider (in addition, of course, to the report, including the recommendation, of the Mining Registrar or the Warden) are to be ascertained by implication from the subject matter, scope and purpose of the provisions of the Act relating to exploration licences in the context of the Act as a whole. See Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40.
The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State. See The Commonwealth of Australia v The State of Western Australia (1999) 196 CLR 392 per Kirby J at 450 ‑ 451 [172]. Part III of the Act specifies land which is "open for mining"; that is, relevantly, land which may be made the subject of an application for a mining tenement, subject to and in accordance with the Act. Part III distinguishes between and makes particular provision for Crown land, public reserves and private land. The primary object of the Act is sought to be carried into effect by making available specific tenements for, relevantly, prospecting, exploration and mining, subject to reasonably stringent conditions, including conditions with respect to expenditure, the reporting of the discovery of minerals of economic interest, and the rehabilitation of the surface of land which is disturbed in the course of operations conducted under the tenement in question. See Nova Resources NL v French (1995) 12 WAR 50 per Rowland J (with whom Kennedy and Pidgeon JJ agreed) at 57 ‑ 58.
By s 9(1) of the Mining Act, subject to the Act:
"(a)all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land in the State whether alienated or not alienated from the Crown and if alienated whenever alienated, is the property of the Crown;
(b)all other minerals existing in their natural condition on or below the surface of any land in the State that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown."
Section 155(1) provides (subject to s 155(2), which is not relevant for present purposes) that a person shall not carry on mining on any land unless he is duly authorised under the Mining Act or any other Act to do so. By s 8(1), the term "mining" is defined to include fossicking, prospecting and exploring for minerals, and mining operations. Section 9 and s 155 reflect a fundamental policy that, in essence, all minerals in Western Australia are the property of the State and no mineral exploration or development is permissible without authorisation under the Mining Act or another statutory provision. Section 9 and s 155 underscore the public interest which exists in relation to applications for, the granting of, and the termination or refusal of applications for, mining tenements.
In my opinion, the Minister, in deciding whether to grant or refuse an application for an exploration licence, is entitled to take into account matters of policy and principle governing the exploration of mineral deposits in this State. Relevant matters of policy and principle include:
(a)the promotion of a strong and stable mining industry and economy generally;
(b)the reconciliation of exploration of mineral deposits with the protection and encouragement of competing land uses;
(c)environmental considerations; and
(d)any other matters that are in the public interest.
No doubt, in a particular case, some issues of policy and principle may conflict. It may be necessary for the Minister to reconcile competing issues or to accord precedence to one factor over another.

Ground 10: the proper construction of s 111A(1)(c) of the Mining Act generally

Since 1994, s 111A(1) of the Mining Act has provided:
"The Minister may -
(a)by notice served on the mining registrar or the warden, as the case requires, terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application; or
(b)refuse an application for a mining tenement,
if in respect of the whole or any part of the land to which the application relates -
(c)the Minister is satisfied on reasonable grounds in the public interest that -
(i)the land should not be disturbed; or
(ii)the application should not be granted;
or
(d)a person who in relation to the land was formerly the lessee of a mining lease the term of which has expired, or is a person deriving title through such a former lessee, has subsequently made a late renewal application and the Minister, being satisfied that the requirements of that expired mining lease and of this Act in relation to that lease had been substantially observed (other than as to the timing of an application for renewal) and that the person has continued to observe those requirements as if the term of the lease had not expired, determines that the renewal application should be approved and grants that renewal."
Section 111A(1)(c) confers on the Minister a discretionary power to terminate or refuse an application for a mining tenement. It is necessary to identify three aspects of the phrase, "the Minister is satisfied on reasonable grounds in the public interest", in s 111A(1)(c). First, the provision is concerned with the Minister's state of mind; that is, his or her satisfaction. Secondly, the Minister must be satisfied, in respect of the whole or a part of the land to which the application relates, that it is in the public interest that the relevant land should not be disturbed or the application should not be granted. Thirdly, if the Minister attains the requisite satisfaction in relation to the public interest, there must be reasonable grounds for his or her satisfaction.
I turn now to examine the significance of the words, "the Minister is satisfied", in s 111A(1)(c).
As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 [130], in the context of s 65 of the Migration Act 1958 (Cth), which entitled the prosecutor in that case to the grant of a visa only if the Minister were "satisfied" that the prosecutor answered the description in s 36(2) of that Act:
"The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision‑maker."
In Buck v Bavone (1976) 135 CLR 110, Gibbs J observed, at 118, that it is not uncommon for statutes to provide that a decision‑maker shall or may take certain action if satisfied of the existence of specified matters. After noting that whether a decision under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the decision‑maker is required to be satisfied, his Honour said, at 118 ‑ 119:
"In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached."
In Eshetu, Gummow J cited that passage, at 653 ‑ 654 [136] ‑ [137], as authority for the proposition that, where the criterion of which a decision‑maker is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question. His Honour added, however, at 654 [137]:
"It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way."
In my opinion, s 111A(1)(c) imposes on the Minister an obligation to assess whether or not it is in the public interest that, in respect of the whole or any part of the relevant land, the land should not be disturbed or the application should not be granted. Subject to the existence of reasonable grounds for the Minister's satisfaction, it is the existence of his or her satisfaction that it is in the public interest that the relevant land should not be disturbed or the application should not be granted which enlivens the power. Compare Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ at 302 ‑ 304; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 90 ‑ 91.
I turn now to examine the meaning of the expression, "in the public interest", in s 111A(1)(c).
In O'Sullivan v Farrer (1989) 168 CLR 210, Mason CJ, Brennan, Dawson and Gaudron JJ said, at 216:
"… the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492 at p 505], per Dixon J."
A question about "the public interest" will therefore rarely have only one dimension. See McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549 per Hayne J at 1561 ‑ 1562 [55].

Accordingly, whether it is "in the public interest", within s 111A(1)(c), that any land should not be disturbed or an application should not be granted in respect of any land involves a judgment about which reasonable minds may well differ. Compare Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 per Lockhart J at 59; McKinnon at 1561 ‑ 1562 [55].
I turn now to examine the words, "reasonable grounds", in s 111A(1)(c).
Statutes which confer a power conditioned upon the existence of reasonable grounds for a state of mind, such as satisfaction, are common. See McKinnon per Gleeson CJ and Kirby J at 1552 [9]. In George v Rockett (1990) 170 CLR 104, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said, at 112:
"When a statute prescribes that there must be 'reasonable grounds' for a state of mind … it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person."
As Gleeson CJ and Kirby J noted in McKinnon, at 1552 [10], this is an objective test. Their Honours added:
"The point of the objectivity of such a test, when it is necessary to consider whether a primary decision‑maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision‑maker thinks he or she has reasonable grounds (Bradley v Commonwealth (1973) 128 CLR 557 at 574 ‑ 575; Nakkuda Ali v MF De S Jayaratne [1951] AC 66; Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952)."
In my opinion, in determining, in a particular case, whether there were reasonable grounds for the Minister to attain the requisite satisfaction under s 111A(1)(c) in relation to the public interest, it is necessary to evaluate the facts and other information which the Minister had before him or her, or otherwise considered, when he or she made the decision to terminate or refuse the relevant application, in the context of the factors which the Minister was entitled or obliged to take into account. The role of a court, which is reviewing the decision of the Minister to terminate or refuse the relevant application, is not to determine what assessment of the public interest is to be preferred. Rather, the issue for the court is whether there were reasonable grounds for the Minister's satisfaction that it was in the public interest that the relevant application should not be granted. See and compare McKinnon per Gleeson CJ and Kirby J at 1552 ‑ 1553 [11] ‑ [12]; per Hayne J at 1561 ‑ 1562 [54] ‑ [57]; per Callinan and Heydon JJ at 1576 [129].

Ground 10: Cazaly's contention in relation to the proper construction of s 111A(1)(c)

Cazaly's contention that, in deciding whether the public interest will be served by refusing or terminating an application under s 111A(1)(c), the Minister must have regard only to matters pertaining to the application itself, and not to matters, facts or circumstances extraneous to that application, such as the private interests of third parties, should be examined by reference to:
(a)the language of s 111A(1)(c);
(b)the authorities relating to s 111A(1)(c) or its precursors;
(c)the relationship between s 111A and s 105A of the Mining Act;
(d)the evident object of the Parliament in enacting s 111A in its current form; and
(e)the primary object of the Act.
I turn now to examine whether Cazaly's contention is consistent with the language of s 111A(1)(c).
The Minister may exercise the power under s 111A(1)(c) if "the Minister is satisfied on reasonable grounds in the public interest that the land should not be disturbed or the application should not be granted".
The phrase "reasonable grounds in the public interest" applies where the Minister is considering whether the land should not be disturbed, and also where the Minister is considering whether the application should not be granted.
The Minister, in considering whether he or she is satisfied on reasonable grounds in the public interest that the land should not be disturbed, may take into account the matters I have referred to in the context of the Minister's power under s 59(6) to grant or refuse an application for an exploration licence. See [72] above. Neither the language of s 111A(1)(c) nor its subject matter requires or justifies a distinction between the factors which the Minister is entitled to consider in the context of deciding whether the land should not be disturbed as distinct from deciding whether the application should not be granted.
Further, the term "public interest" in s 111A(1)(c) is inconsistent with an intention by the Parliament to confine the matters which the Minister is entitled to take into account to matters pertaining to the application itself. As I have mentioned, the concept of the public interest has a broad connotation, and imports a discretionary value judgment by reference to undefined factual matters, confined only by the subject matter, scope and purpose of the relevant statutory provisions. It is true that:
(a)an application for a mining tenement which the Minister is considering terminating or refusing under s 111A(1)(c); and
(b)a competing application by a third party for a mining tenement over the whole or any part of the land the subject of the application which the Minister is considering terminating or refusing,
is concerned, in each case, with whether the privileges which such a tenement confers should be granted to the applicant in question and, in each case, therefore concerns private rights and interests. Although private rights and interests do not, in themselves, raise or relate to an aspect of the public interest, there may well be a public interest in the protection, alternatively the termination or refusal, of an application for a mining tenement. In other words, the facts and circumstances with respect to an application for a mining tenement which the Minister is considering terminating or refusing under s 111A(1)(c), alternatively a competing application by a third party for a mining tenement over the whole or any part of the land the subject of the other application, may raise a question which, viewed objectively, can reasonably give rise to a question whether it is in the public interest that the relevant land should not be disturbed or the relevant application should not be granted. See Re Warden Heaney per Franklyn J at 325.
Cazaly submitted that the maxim expressio unius est exclusio alterius (a rule of statutory construction to the effect that the express mention of one thing is the exclusion of another) should be applied to confine the scope of s 111A(1)(c) by reference to s 111A(1)(d). It is established that the maxim expressio unius must be applied with care. It is not of universal application and applies only when the intention it expresses is apparent from the language of the provision. See Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88 per Stephen, Mason, Aickin, Wilson and Brennan JJ at 94. As their Honours noted:
"It is 'a valuable servant, but a dangerous master': Colquhoun v Brooks [(1888) 21 QBD 52, at p 65]."
Also see O'Sullivan at 215 ‑ 216.
Each of s 111A(1)(c) and s 111A(1)(d) is a separate and distinct provision. Section 111A(1)(d) must be read with s 111A(2) and s 78, which create a procedure for the late renewal of mining leases. It may be that, in some cases, both s 111A(1)(c) and s 111A(1)(d) are satisfied, and the Minister may properly terminate or refuse an application in reliance on either or both of the paragraphs. Although there is some potential overlap in practice between s 111A(1)(c) and s 111A(1)(d), and each paragraph specifies different criteria, they are not in contradiction. Section 111A(1)(d) does not require the Minister to form any opinion as to the public interest. The power under s 111A(1)(d) is exercisable to protect or advance private interests whereas the power under s 111A(1)(c) is exercisable to protect or advance the public interest. The rejection of Cazaly's contention as to the proper construction of s 111A(1)(c) does not render s 111A(1)(d) otiose.
It is true that a mining lease confers on the holder more valuable, extensive and enduring rights than are conferred on the holder of an exploration licence. That fact, in combination with the language of s 111A, does not, however, in my opinion, indicate a Parliamentary intention that the Minister may exercise the power set out in s 111A(1)(a) or (b) where a late renewal application has been made for a mining lease, but may not exercise that power where a late renewal application has been made for any other mining tenement (including an exploration licence). Section 111A(1)(c) relates to all types of mining tenements including those which are not within the Minister's power to grant.
I am satisfied that the maxim expressio unius should not be applied.
The use of the disjunctive "or" between s 111A(1)(c) and s 111A(1)(d) reveals an intention by the Parliament that the discretionary power to terminate or refuse an application for a mining tenement may be exercised either in the circumstances specified in s 111A(1)(c) or in the circumstances specified in s 111A(1)(d). It is not necessary to satisfy the requirements of both paragraphs before the power is enlivened.
In my opinion, Cazaly's contention in relation to the proper construction of s 111A(1)(c) is inconsistent with the language of the provision.
I turn now to examine whether Cazaly's contention is consistent with the authorities relating to s 111A(1)(c) or its precursors.
In Re Minister for Mines; Ex parte Haoma North West NL, unreported; FCt SCt of WA, Library No 920625; 24 November 1992, the Full Court of the Supreme Court of Western Australia considered s 111A(1)(b) of the Mining Act, as it was then enacted. At that time, s 111A(1) provided, relevantly:
"Where an application is made for a mining tenement but in respect of the whole or any part of the land to which the application relates -
(a)…
(b)the Minister is satisfied on reasonable grounds in the public interest that -
(i)the land should not be disturbed; or
(ii)the application in question should not be granted,
the Minister may, by notice served on the warden to whom the first‑mentioned application for a mining tenement has been made, refuse that application, whether or not the application has been heard by the warden."
Section 111A(1)(b) as it then stood was similar to s 111A(1)(c) as currently enacted. The applicant in Haoma North West argued that there must be some significance in the land over which the relevant application is being made that justifies the Minister refusing the application "on reasonable grounds in the public interest". Nicholson J (with whom Pidgeon and Walsh JJ agreed) rejected the argument. His Honour said, at page 8:
"It is apparent from a plain and natural reading of the words in s 111A(1)(b) that the object of the Minister's satisfaction is 'the application in question' and not 'the whole or any part of the land to which the application relates'. The requirement that the Minister be satisfied on reasonable grounds in the public interest is one which he must be assessed [sic] in relation to 'the application in question'. The Minister's discretion relates to 'the application in question' and is conditioned by the requirement that he reaches his level of satisfaction 'on reasonable grounds in the public interest'. There is nothing in those words which limits the basis on which the Minister exercises that discretion to considerations arising solely in relation to the land the subject of 'the application in question'."
Later, his Honour said, at page 10:
" … [s 111A(1)(b)] gives to the Minister power to make a decision by reaching satisfaction in the requisite way on whether the application under examination should be granted. It is a discretion and power limited only by the requirements that the level of satisfaction be attained 'on reasonable grounds in the public interest'. What are 'reasonable grounds' must be considered in the context of the breadth of that discretion and thus in the context of the section itself as well as the Act as a whole."
Accordingly, in Haoma North West, the Full Court held that the Minister's discretionary power "related to" the application in question (that is, whether the relevant application should be terminated or refused), and that the discretion was not confined by reference to the land to which the application related. Although the Full Court held that the power "related to" the relevant application, it did not hold that the Minister must have regard only to matters pertaining to the application itself. Indeed, the Full Court noted that the discretion was limited only by the requirements that the Minister's satisfaction be attained "on reasonable grounds in the public interest" and that what are "reasonable grounds" must be determined having regard to the breadth of that discretion in the context of the section itself and the Act as a whole.
In Concept Nominees Pty Ltd v The Minister for Mines, unreported; SCt of WA; Library No 930678; 9 December 1993, the Minister exercised his power under s 111A(1)(b) as it then stood to refuse the applicant's application for an exploration licence. Section 111A(1)(b) at that time was identical to the provision considered by the Full Court in Haoma North West, and similar to s 111A(1)(c) as currently enacted. In Concept Nominees, the Minister refused the application for the purpose of enabling the State to comply with its obligation under a State agreement with a third party to find, and make available to the third party, land containing shell sand within a reasonable economic distance from a specified point. The Minister was satisfied that it was in the public interest that the State be able to make available to the third party the land the subject of the applicant's application. The Court held that the Minister had validity exercised his discretion under s 111A(1)(b).
Re Warden Heaney dealt with issues relating to the standing required by a person who sought to object to an application for a mining tenement. The Full Court considered whether private interests could be sufficient to give standing if there was a public interest in their protection. Franklyn J said, at 325, in relation to s 111A, as currently enacted:
"It is important to recognise … that in that context the public interest is that identified in s 111A. Consequently, in my view, to be relevant as going to "public interest", an objection, whether lodged primarily in respect of a "private interest" or as one of "public interest" must contain a discernible objection concerning the public interest of such a nature as to be capable of exciting the consideration of the Minister under s 111A. That is to say, it must be discernible from the objection that it raises a question which, objectively viewed, can reasonably give rise to a concern that the disturbance of the relevant land or grant of the application might not be in the public interest. The determination whether or not such disturbance or grant is or is not in the public interest is a matter for the Minister to be taken into account in the exercise of his discretion under s 111A."
Earlier in his reasons, Franklyn J cited, at 324, a passage from the judgment of Jacobs J in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 487 as to the meaning of the concept of "public interest", and said, at 325, that the observations of Jacobs J appeared appropriate to the concept of "public interest" in the context of the Mining Act. The passage from the judgment of Jacobs J was this:
"The words public interest are so wide that they comprehend the whole field of objection other than objection founded on deficiencies in the application and in the required marking out of the land applied for. For instance, the public interest may tell against the grant of a mining lease even though particular interests of an individual are the only interests primarily affected. It may thus be in the public interest that the interests of that individual be not overborne. However, all the objections can be and should be related to public interest. But private interests as such are not a relevant consideration. So far as they are intended to be protected, they are specifically so protected by the Act itself." [Emphasis supplied by Franklyn J]
In neither Sinclair nor Re Warden Heaney was the objection under consideration by the court confined to matters pertaining to the application itself. Although Cazaly's contention in relation to the proper construction of s 111A(1)(c) was not raised or considered in Re Warden Heaney, the reasoning of Franklyn J in relation to s 111A is to the effect that the concept of "public interest" has a significantly wider ambit than that contended for by Cazaly.
In Re Warden Calder, Steytler J considered and approved, at pages 14 ‑ 17 and 36 ‑ 39, the reasoning of Franklyn J in Re Warden Heaney.
In my opinion, Cazaly's contention in relation to the proper construction of s 111A(1)(c) is inconsistent with the authorities relating to s 111A(1)(c) or its precursors.
I turn now to examine the relationship between s 111A and s 105A of the Mining Act.
Section 105A relates to priorities between applicants for certain mining tenements. At all material times, s 105A(1) has provided:
"Subject to section 111A, where more than one application is received for a mining tenement (other than a miscellaneous licence) in respect of the same land or any part thereof, the applicant who first complies with the initial requirement in relation to his application has, subject to this Act, the right in priority over every other applicant to have granted to him in respect of that land or part the mining tenement to which his application relates."
Section 105A(4) explains the reference in s 105A(1) to compliance with the initial requirement in relation to an application.
The priority which s 105A(1) confers on the applicant who first complies with the initial requirement in relation to his or her application, is subject to the Act including, in particular, subject to s 111A. The plain intention of the Parliament is that the discretionary power conferred on the Minister under s 111A may be exercised in a manner which abrogates the "right in priority" which would otherwise arise under s 105A(1). This interrelationship between s 105A and s 111A indicates that the Minister may take into account, in exercising his or her discretion under s 111A, the effect which that decision will have upon the priorities between applicants that would otherwise apply by virtue of s 105A(1).
In my opinion, Cazaly's contention in relation to the proper construction of s 111A(1)(c) is inconsistent with the relationship between s 111A and s 105A of the Mining Act.
I turn now to examine whether Cazaly's contention is consistent with the evident object of the Parliament in enacting s 111A in its current form.
Section 111A was originally inserted into the Mining Act by an amendment made in 1981 in these terms:
"(1)If the Minister is satisfied on reasonable grounds that an area to which an application for a mining tenement relates should not, in the public interest, be disturbed, he may by notice served on the warden to whom that application has been made refuse that application, whether or not that application has been heard by that warden.
(2)Notwithstanding anything in this Act, an application to which a notice referred to in subsection (1) of this section applies ceases to have any effect for the purposes of this Act when that notice is served."
In 1986, s 111A was amended by repealing subs (1) and substituting the following:
"(1)Where an application is made for a mining tenement but in respect of the whole or any part of the land to which the application relates ‑
(a)a person who in relation to that land was formerly the lessee of a mining lease the term of which has expired, or is a person deriving title through such a former lessee, subsequently applies (in the manner prescribed for the purposes of section 78 notwithstanding that the application was not made during the final year of the term of that lease) for the renewal of that mining lease with effect from the expiry of the preceding term and the Minister, being satisfied that the requirements of that expired mining lease and of this Act in relation to that lease had been substantially observed (other than as to the timing of an application for renewal) and that the applicant has continued to observe those requirements as if the term of the lease had not expired, determines that the subsequent application for renewal of the expired lease should be approved and grants that renewal; or
(b)the Minister is satisfied on reasonable grounds in the public interest that ‑
(i)the land should not be disturbed; or
(ii)the application in question should not be granted,
the Minister may, by notice served on the warden to whom the first‑mentioned application for a mining tenement has been made, refuse that application, whether or not the application has been heard by the warden."

Fourthly, Cazaly's contention that the Minister was required to inform or cause Cazaly to be informed of information within his corporate or constructive knowledge is inconsistent with the approach of the High Court in Applicant VEAL of 2002, where Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, at 96 [17]:
"… what is 'credible, relevant and significant' information must be determined by a decision‑maker before the final decision is reached."
A decision-maker can only make such a determination based on material of which he or she has actual knowledge.
Fifthly, decisions such as Peko‑Wallsend are distinguishable. They were concerned with a decision‑maker's failure to take account of factors which he or she was bound to consider. They were not concerned with procedural fairness. In Peko‑Wallsend, Brennan J, in the context of failure to take account of relevant considerations, said, at 66:
"A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision."
Compare the approach of Mason J at 44 ‑ 45.
Sixthly, Cazaly's contention is inconsistent with the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants 134/2002 (2003) 211 CLR 441. Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ held, at 458 ‑ 460 [34] ‑ [43], that the Refugee Review Tribunal had not denied procedural fairness to the applicants, by failing to disclose material in a department file which showed that the first applicant's husband was in Australia and had obtained a temporary protection visa, because it was unaware of that material and did not rely upon it.
Seventhly, Cazaly's contention is inconsistent with the general approach of the majority of the High Court in Hot Holdings (2002). That case was concerned with apprehended bias in relation to Ministerial decision‑making. The majority held that, on the premise that the Minister had given a departmental recommendation independent and unbiased consideration, a peripheral involvement in the preparation of the recommendation by officers of the department who might have an interest in the outcome of the matter did not invalidate the Minister's decision. Gleeson CJ observed, at 446 [14], that a passage in the judgment of the court under appeal appeared to attribute a form of vicarious partiality to the Minister which had far‑reaching implications. His Honour added:
"Decision‑makers, whether administrative or judicial, often act on, or take into account, information or advice that comes to them from sources that are not impartial. It was not argued in this Court that the Minister took into account an irrelevant consideration, or failed to take account of a relevant consideration. That might sometimes be the consequence of receiving advice that is partial; but it is not this case."
Also see the comments of Gaudron, Gummow and Hayne JJ at 455 [50].
Finally, in this context, Cazaly's contention is inconsistent with the decision in McLachlan. In that case, a delegate of the Australian Securities and Investments Commission, a body corporate, made a decision after forming a relevant belief. The applicant contended that it should have been given access to all information in ASIC's possession which might be relevant to that belief. The information in question would have been within ASIC's "corporate knowledge", but was not within the actual knowledge of the delegate and was therefore not relied upon by him. The Full Court of the Federal Court rejected the applicant's argument that procedural fairness required the applicant to be given access to all relevant material in ASIC's possession.

Ground 13(a)(i) ‑ (iii): procedural fairness: documents before the Minister

Cazaly contends in ground 13(a)(i) ‑ (iii) that the Minister failed to accord Cazaly procedural fairness in making the Decision in that he failed to provide Cazaly with documents and information that the Minister had before him or considered when he made the Decision, including:
"(i)a document entitled or described as a 'Statement of Principles' which is referred to in paragraph 21 of the letter from Rio to the Hon. Alan Carpenter, Minister for Development, dated 21 September 2005 (Rio's First Submission) or an adequate summary of the content thereof;
(ii)documents relating to or evidencing the 'ongoing discussions with [the Minister] over the last 6 months concerning the various State Agreements to which members of the RTIO group of companies are party' referred to in paragraph 21 of Rio's First Submission, including any memos, file notes or reports relating to the discussions or an adequate summary of the content and status of the discussions;
(iii)the letter from the Hon. Alan Carpenter, Minister for Development, to Rio dated on or about 16 December 2005 which was a response to a letter from Rio which enclosed the 'Statement of Principles' referred to in paragraph 21 of [Rio's First Submission] or an adequate summary of the content thereof;"
The evidence before this Court does not establish that any of the documents referred to in ground 13(a)(i) ‑ (iii) were before the Minister or otherwise considered by him when he made the Decision. Further, the evidence does not support an inference to that effect.

Ground 13(b): procedural fairness: providing Cazaly with sufficient information as to the case it had to meet

For the reasons I have given at [295] ‑ [305] above, Cazaly had sufficient information to understand the substance of par 21 of Rio's First Submission. Cazaly was able to respond to RRJV's submission that the State had a commitment, analogous to that in Concept Nominees, to apply the Rhodes Ridge State Agreement to the land on which the Shovelanna resource was located.

Ground 13(a)(v) and (ix) and ground 13(c): procedural fairness: the Policy

In Rio's Third Submission, RRJV raised the Policy in response to Cazaly's contention that the Extension Application should not have been granted even if it had been lodged on time. I have set out, at [129] above, the manner in which the submissions addressed the Policy.
On 11 November 2005, Mr Stevens of the Department, had a telephone conversation with Cazaly's solicitor, Mr Edel. Mr Stevens explained the Policy to Mr Edel, and informed him of the reliance which RRJV intended to place on it. In a file note dated 11 November 2005, Mr Edel recorded the telephone conversation, relevantly, as follows:
"[Mr Stevens] said that the major companies such as BHP and Rio would be using the policy as a defence. He said that the policy that had been applied since the 1960's was to give the major companies accommodation in return for their development of the Pilbara iron ore industry. He said that the major's [sic] attitude was that this had gone on for many years and had been an understanding that they had had with Government over many years. He said that they felt that if they had received 11th extension of term [sic] on that basis why shouldn't they receive the 12th extension of term? If the policy was going to be changed then they needed to have notice of it.
He said that when you look at Section 102A of the Mining Act the policy is clearly expressed that iron ore tenements should be given exemptions from expenditure. He said that the majors were arguing that they had made massive decisions in relation to investment on the back of that policy and it would be unfair to change it now.
He said however that the policy was now being reviewed. He said that this started several years ago when the Department had noticed that some junior companies were started [sic] to move into the iron ore sector as a result of higher iron ore prices. He said that the policy review had moved at glacial speed up until about a year ago when FMG had started writing in to the Minister complaining that BHP were being given extensions of term and exemption applications being granted [sic] for no reason. He said that FMG had plainted two tenements which were exploration licences and were asking the Minister not to grant extensions of term or exemptions from expenditure obligations. These were not under any State agreement. BHP got wind of this and applied for mining leases over the area, which FMG has objected to. FMG is objecting on the grounds that it would not be in the public interest to grant the tenements. …
…
I asked whether it was a Departmental policy rather than a Government policy.
[Mr Stevens] said it was a Departmental policy but one that the government knew about. He said in particular it was a DRD policy. When these renewal applications or exemption forms came in he said that DoIR (the old DME) used to ask DRD whether they had any problem with it. They would said [sic] no and then DME would process the application.
…
He made the point that it only applied outside the State agreement areas. The policy was that the majors had to demonstrate an inferred resource but not more than that. Once an inferred resource had been demonstrated then they could treat the tenement as a 'holding tenement'. When retention licences came in 1994 no‑one used them because of native title difficulties. The old policy in relation to iron ore tenements continued.
I asked [Mr Stevens] how he thought the policy would play with Government in the sense that how would Government react to it? He said that he did not know.
He said the policy had been spectacularly successful in helping set up the iron ore industry and keep it running.
I said to him that I did not think it was relevant to the Section 111A issue. He said it wasn't directly relevant but it would come into consideration to the extent that there was an allegation that Rio had not done any work on the tenement. Rio would say 'of course we didn't do any work - we didn't have to because we had an understanding with the Government about these matters'. That understanding had been in place for a long time and if it was going to be changed they should have been given notice of it.
…"
By letter dated 9 December 2005, Cazaly's solicitors wrote to the Department in connection with the Policy:
"… we cannot see any basis for the assertion by [RRJV] in its submission dated 21 September 2005 that 'it is probable that, had it been received on time, the application to renew would have been granted'.
By asserting that a renewal application which does not appear to satisfy the Department's guidelines, would probably have been granted, [RRJV] has put the policy and practice of the Department in relation to the renewal of iron ore tenements in issue in the proceedings before the Minister.
We understand that the Department has recently forwarded the Minister a report of a policy or practice adopted by the Department in relation to the favourable treatment of iron ore tenements and exemption and renewal applications in respect thereof.
Cazaly Iron Pty Ltd cannot properly respond to the Rio Tinto submission without knowledge of the Department's policy or practice. [RRJV] as beneficiary of the practice or policy and also the Minister as recipient of the report have knowledge of the policy or practice.
Procedural fairness requires that Cazaly Iron Pty Ltd be similarly informed."
On 13 December 2005, Cazaly's solicitors made application on behalf of Cazaly under the Freedom of Information Act for a copy of the Department's report to the Minister in relation to the Policy.
On 8 February 2006, Cazaly's solicitors received a copy of the Department's report to the Minister in relation to the Policy. Significantly, Cazaly's solicitors received that document before Cazaly settled and sent Cazaly's Third Submission dated 14 February 2006 to the Department. In Cazaly's Third Submission, Cazaly said that:
"… no further response to the Rio JV's second or third submission is necessary because:
(a)the Rio JV's second and third submissions simply respond to matters raised by Cazaly Iron in its submissions. Cazaly Iron confirms and reiterates all of the points in its first and second submissions and stands by each of them. The documents lodged in support of the submissions, information contained on the public record, and information contained in the records of the Department of Industry and Resources confirm all of the points that Cazaly Iron has made in its submissions; and
(b)the procedure established by the Department of Industry and Resources in relation to Section 111A applications discourages the lodgement of submissions beyond the submission in reply. In the interests of assisting in establishing a manageable process, Cazaly will refrain from lodging any further submissions as Cazaly believes that the 'public interest' is best served by all parties complying with both the Mining Act, 1978 as well as the procedures set in place by the Department of Industry and Resources."
At all material times after 11 November 2005, Cazaly appreciated that the Policy was an important matter which the Minister would consider in making the Decision. On 8 February 2006, Cazaly received a copy of the Department's report to the Minister in relation to the Policy. Cazaly had a proper opportunity, in Cazaly's Third Submission dated 14 February 2006, to address, in an informed manner, the content, validity and significance of the Policy. Cazaly chose not to address those issues.
It is true that on 11 November 2005, Mr Stevens informed Cazaly's solicitor, Mr Edel, that Cazaly would have an opportunity to see and comment on the Department's Minute before it was sent to the Minister. However, by 2 February 2006, Cazaly understood that it would not be permitted to see or comment on the minute. See the letter dated 2 February 2006 from Cazaly's solicitors to Mr Burton of the Department. The critical point, in this context, is that on 8 February 2006, Cazaly received a copy of the Department's report to the Minister in relation to the Policy, and had a proper opportunity to deal with the Policy in an informed manner.
Cazaly's submissions in relation to ground 13(c) are otherwise based on a misunderstanding of the manner in which the Minister considered the Policy. See [237] ‑ [251] above.

Ground 13(a)(v) and (ix): procedural fairness: references to the Policy in the Department's Minute

For the reasons I have given at [186] ‑ [190] above, the Department's Minute to the Minister inaccurately reproduced the advice from the Department's legal officer, but the minute did not misstate, in any material respect, the effect of the Policy or its objectives.
The advice of the Department's legal officer related to the validity of one aspect of the Policy. The Department's Minute erroneously recorded the advice as referring to the validity of the Policy as a whole.
It is true that Cazaly did not have an opportunity to point out to the Minister that the Department's Minute had inaccurately reproduced the advice of the Department's legal officer or that the advice in question was qualified. The loss of that opportunity does not, however, justify granting prerogative or declaratory relief. For the reasons I have given at [132] ‑ [182] above, the relevant parts of the Policy are not inconsistent with the Mining Act and can properly be taken into account by the Minister in exercising the discretionary power under s 111A(1)(c). In those circumstances, there would be no point in granting prerogative or declaratory relief for the purpose of enabling Cazaly to make submissions to the Minister in relation to the Policy and its consistency with the Mining Act which are contrary to my analysis at [132] ‑ [182] above. The grant of relief, in the circumstances I have described, would be futile.

Ground 13(a)(v), (vii) and (ix): procedural fairness: internal submissions

Cazaly contends that the Minister failed to accord Cazaly procedural fairness in making the Decision in that the Minister failed to provide Cazaly with documents and information that the Minister had before him or considered when he made the Decision, including:
"(v)a copy of the minute prepared for the Minister by the Department dated 30 March 2006, in relation to [RRJV's] request that the Minister terminate or refuse [Cazaly's Application] pursuant to section 111A(1)(c)(ii) of the Act (Departmental Submission) including all annexures or an adequate summary of the content thereof;
(vii)legal advice provided by the State Solicitors Office to [the Department] dated 1 February 2006 or an adequate summary of the content thereof;
(ix)the memorandum from Ms Anne Seghezzi to Mr Bob Stevens dated 8 February 2006 which was quoted by the Minister on page 2 of the reasons for the Decision which were published on 27 April 2006 or an adequate summary of the content thereof;"
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Court of the Federal Court explained the application of procedural fairness in the context of the entitlement of a person likely to be affected by the exercise of a statutory power to put information and submissions to the decision‑maker. The Full Court said, at 591 ‑ 592:
"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."
In Ex parte Palme, the prosecutor sought certiorari and prohibition in relation to the Minister's decision to cancel the applicant's visa. The prosecutor complained, relevantly, that he had been denied the opportunity to see, comment on, and answer a departmental submission given to the Minister before he made his decision. In particular, the prosecutor contended that he had not had the opportunity to see how the submission "distilled" the relevant material and commented on it. The Departmental submission set out the relevant facts and policy considerations. The last page of the submission gave the Minister four options, and the Minister recorded his decision by crossing out three of them. Gleeson CJ, Gummow and Heydon JJ said, at 219 [21]:
"… it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or 'balance' in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial 'lack of balance'."
McHugh J held, at 228 [59], that, for the reasons given in the joint judgment of Gleeson CJ, Gummow and Heydon JJ, there was no substance in the prosecutor's contention that he had been denied procedural fairness.
When a Minister, in making a decision, relies on information from his or her Department, the Minister is obliged, before making the decision, to disclose the information to any person who may be adversely affected by the decision, and to give that person an opportunity to be heard in respect of the relevant information, if it:
(a)raises new matters in respect of which the person affected has not, in substance, previously been heard; and
(b)might materially influence the Minister's decision‑making in a manner adverse to the person affected.
See Kioa per Mason J at 587; Re Minister for Mines; Ex parte Roberts per Steytler J at 418.

In my opinion, the aspects of the advice received by the Minister from the Department and the State Solicitor's Office, which are referred to by Cazaly, did not raise any new matter in respect of which the Minister was required to give Cazaly an opportunity to be heard. The issues relating to the content and application of the Policy, and the proper construction and application of s 111A of the Mining Act, had been raised in earlier correspondence between Cazaly and the Department or in earlier submissions by RRJV. Cazaly had either made submissions on the relevant issues or had been given an opportunity to be heard in relation to them. Procedural fairness did not require that the Minister give Cazaly a further opportunity to be heard on the aspects of the advice received by the Minister from the Department or the State Solicitor's Office, which Cazaly has identified.
Further:
(a)For the reasons I have given at [190] and [348] ‑ [350] above, the inaccurate reproduction of the advice from the Department's legal officer does not justify the grant of relief.
(b)As to the introductory comment in the Department's Minute, that comment must be read in the context of the analysis of s 111A later in the minute, where the contentions of Cazaly and RRJV, and the advice of the State Solicitor's Office, are set out. Cazaly had previously made comprehensive submissions on this issue.
(c)As to Cazaly's allegation that the State Solicitor's Office advised the Minister that it was sufficient for the Minister to be satisfied that "there is some public interest to be advanced" by terminating Cazaly's Application, that contention does not accurately describe the substance of the relevant advice. The advice was, in substance, that the Minister's discretionary power under s 111A(1)(c) was not enlivened unless some public interest was identified. The sentence complained of by Cazaly must be evaluated in the context of the paragraph in which it appears and the advice as a whole. When that is done, it is apparent that the advice was distinguishing between the private interest of RRJV on the one hand and the public interest on the other, and informing the Minister that unless the matters raised by RRJV could properly be characterised as involving the public interest, they could not justify the exercise of the Minister's discretion under s 111A(1)(c).
In my opinion, the Department's Minute and the advice from the State Solicitor's Office presented the Minister with balanced advice on the issues, and left to the Minister the identification of any relevant public interest considerations and the decision whether to exercise his discretion under s 111A(1)(c) and terminate Cazaly's Application.

Ground 13(a)(ix): procedural fairness: the meeting

On or between about 6 and 8 September 2005, there was a meeting in London between Mr Carpenter and the Chief Executive Officer of Rio Tinto Limited, Mr Leigh Clifford. Some details in relation to that meeting were mentioned by Mr Carpenter in the radio interview on 27 April 2006 with Ms Mellet. A transcript of the interview records, relevantly:
" …
GERALDINE MELLET: How much of this is your decision?
ALAN CARPENTER:     It's not my decision. What happens there … what happened is that the incidents around which the decision has been made occurred in August last year. There was immediately some level of correspondence from the … from Rio to the Department. Once all the correspondence and the objections from the … from Rio and the counter position from Cazaly had come forward, they then exchanged with each other, so that each can comment on the other's position. When all that's come through, it's aggregated and provided to the Minister and that was given to John, not me. John …
GERALDINE MELLET: But in the time that you were responsible, did you actually have meetings with Rio Tinto?
ALAN CARPENTER:     No.
GERALDINE MELLET: You had no discussions with Rio Tinto?
ALAN CARPENTER:     Yeah, well the day that I found out about it, I was actually in Rio's office in London. I was on a visit to Europe for the Offshore Europe Oil and Gas Conference, and as part of that pre-arranged schedule I was visiting the Rio office. And that was the day, as I understand it, my recollection, that was the day that Lee [sic] Clifford (*), the Rio Tinto CEO found out about it as well.
GERALDINE MELLET: What did he say to you?
ALAN CARPENTER:     He just told me what had happened and that it would be a matter of some contention. I said, well, my responsibility, as I recall, my responsibility in this matter will be to act properly and fairly and I will. And that's where we left it."
Cazaly submitted that the matters discussed at the meeting were credible, relevant and significant to the Decision. Cazaly also submitted that there was "a significant likelihood" that the Minister acquired "some knowledge" of the matters discussed at that meeting, in that:
(a)on 3 February 2006, Mr Bowler became the Minister Assisting the Minister for State Development;
(b)on 3 February 2006, Mr Bowler replaced Mr Carpenter as the Minister administering the Mining Act;
(c)Mr Bowler replaced Mr Carpenter, as the Minister responsible for deciding whether to terminate Cazaly's Application, during the course of the decision-making process; and
(d)it is "likely" that Mr Roberts was aware of the matters discussed at the meeting because he was an adviser to Mr Carpenter, and there is evidence that Mr Bowler consulted Mr Roberts before making the Decision.
Counsel for the Minister submitted that it was not open, in the circumstances, to infer that Mr Bowler acquired knowledge of the matters discussed at the meeting. In particular, it was submitted:
(a)First, Mr Bowler was not the Minister Assisting the Minister for State Development before 3 February 2006. The office of Minister for Resources and Assisting the Minister for State Development was only created when Mr Bowler was appointed on 3 February 2006. Before that time, Mr Bowler was Minister for Local Government and Regional Development, Sport and Recreation, Land Information, Goldfields - Esperance and Great Southern.
(b)Secondly, the assertion that the fact of appointment as Minister carried with it knowledge of all conversations which the former Minister had, was without merit.
Senior counsel for RRJV supported the Minister's submissions on this issue. Senior counsel contended, on their behalf, that:
(a)no reasonable inference could be drawn from the evidence that any "adverse information" was conveyed by Mr Clifford to Mr Carpenter at the meeting; and
(b)no reasonable inference could be drawn from the evidence that the content of any of the discussions between Mr Clifford and Mr Carpenter was conveyed, directly or indirectly, to Mr Bowler.
In my opinion, the submissions made on behalf of the Minister and RRJV are correct. According procedural fairness, in the context of Ministerial decision‑making, does not require, as a matter of fairness or good public administration, that a Minister be deemed to have constructive knowledge of everything within the knowledge of his Ministerial predecessors. It would also be impractical and inconvenient in that it is not unusual for Ministers to come and go and for changes of government to occur. Further, there is no evidence before this Court that there was any conversation between Mr Clifford and Mr Carpenter, in relation to the possible termination of Cazaly's Application, beyond the brief exchange mentioned by Mr Carpenter during the radio interview. The transcript of the interview records, relevantly, that:
(a)the meeting between Mr Carpenter and Mr Clifford was arranged before they became aware of RRJV's loss of the Expired Licence and Cazaly's Application;
(b)Mr Clifford informed Mr Carpenter of the events relating to the loss of the Expired Licence and Cazaly's Application, and that there would be a dispute in relation to those events; and
(c)Mr Carpenter informed Mr Clifford that he was obliged, as the responsible Minister, to act properly and fairly, and he would do so.
There is no evidence that any further or other matters were discussed at the meeting in relation to the loss of the Expired Licence, Cazaly's Application or the request "foreshadowed" by RRJV in its letter dated 2 September 2005 that Mr Carpenter exercise his discretion under s 111A(1)(c)(ii) of the Mining Act to terminate Cazaly's Application. There is no evidence that Mr Carpenter's account of his conversation with Mr Clifford, or the circumstances in which it occurred, is incomplete or inaccurate.
It is not established that any matters were discussed between Mr Carpenter and Mr Clifford at the meeting which were credible, relevant or significant to the Decision. Further, it is not made out that a hypothetical fair-minded person who is properly informed as to:
(a)the statutory context and decision-making structure in relation to s 111A(1) of the Mining Act;
(b)the matters to be decided in relation to whether Cazaly's Application should be terminated pursuant to s 111A(1)(c)(ii); and
(c)the objective facts, disclosed in the evidence, concerning the meeting,
might reasonably apprehend, by reason of those matters, that Mr Carpenter, or his successor as the Minister responsible for the administration of the Mining Act, might not bring an independent and impartial mind to the making of the decision in question. On the evidence, there was nothing in the conversation between Mr Clifford and Mr Carpenter which should have been communicated to Cazaly to enable it to make a correction or contradiction or to make submissions.

Ground 13: conclusion

For the reasons I have given, ground 13 fails.

Outcome of the proceedings

I would discharge the order nisi and refuse declaratory relief.